REMEDIAL LAW

2013 GOLDEN NOTES

UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
MANILA
 The UST GOLDEN NOTES is the annual student-edited bar review
material of the University of Santo Tomas, Faculty of Civil Law.
Communications regarding the NOTES should be addressed to
the Academics Committee of the Team: Bar-Ops.

ADDRESS: Academics Committee

Team Bar-Ops
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

TEL. NO.: (02) 731-4027

(02) 4061611 loc. 8578

Academics Committee
Faculty of Civil Law
University of Santo Tomas
Espaa, Manila 1008

All Rights Reserved by the Academics Committee of the Faculty of Civil Law of the
Pontifical and Royal University of Santo Tomas, the Catholic University of the
Philippines.

2013 Edition

No portion of this material may be copied or reproduced in books, pamphlets, outlines

or notes, whether printed, mimeographed, typewritten, copied in different electronic
devises or in any other form, for distribution or sale, without a written permission.

A copy of this material without the corresponding code either proceeds from an illegal
source or is in possession of one who has no authority to dispose the same.

No. 01

Printed in the Philippines, April 2013.

 ACADEMIC YEAR 2013-2014

CIVIL LAW STUDENT COUNCIL

VICTOR LORENZO L. VILLANUEVA PRESIDENT
MARIANE TINGCHUY VICE PRESIDENT INTERNAL
RONN ROBBY ROSALES VICE PRESIDENT EXTERNAL
MARIE SYBIL TROPICALES SECRETARY
RAFAEL LORENZ SANTOS TREASURER
LUIS ALFONSO E. ARTAIZ AUDITOR
GLORIA ANASTHASIA LASAM PUBLIC RELATIONS OFFICER

TEAM: BAR-OPS
BIENVENIDO L. MABULAC II CHAIRPERSON
VICENTE JAN PLATON III VICE-CHAIRPERSON
APRIL V. ENRILE SECRETARY
ERIKA PINEDA ASST. SECRETARY
CARLO ARTEMUS V. DIAZ HEAD, FINANCE COMMITTEE
WILFREDO P. SUDIO JR. ASST. HEAD, FINANCE COMMITTEE
MHAE ANN V. RIVERA ASST. HEAD, FINANCE COMMITTEE
CLARABEL ANNE R. LACSINA HEAD, HOTEL ACCOMMODATIONS COMMITTEE
VANNESSA ANNE VIRAY ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
HAZEL M. NAVAREZ ASST. HEAD, HOTEL ACCOMMODATIONS COMMITTEE
ARWIN V. CABANTING HEAD, LOGISTICS COMMITTEE
NATHANIEL LIBERATO ASST. HEAD, LOGISTICS COMMITTEE

ATTY. AL CONRAD B. ESPALDON

ADVISER
 ACADEMICS COMMITTEE
ALJON D. DE GUZMAN CHAIRPERSON
MARK KEVIN U. DELLOSA VICE-CHAIR FOR ACADEMICS
ANTHONY M. ROBLES VICE-CHAIR FOR LAYOUT AND DESIGN
CLARABEL ANNE R. LACSINA MEMBER, LAYOUT AND DESIGN TEAM
RAFAEL LORENZ SANTOS MEMBER, LAYOUT AND DESIGN TEAM
JAMES BRYAN V. ESTELEYDES VICE-CHAIR FOR RESEARCH
MARIA JAMYKA S. FAMA MEMBER, RESEARCH TEAM
PAULINE BREISSEE GAYLE D. ALCARAZ MEMBER, RESEARCH TEAM
ROBBIE BAAGA MEMBER, RESEARCH TEAM
MONICA S. CAJUCOM MEMBER, RESEARCH TEAM
DOMINIC VICTOR C. DE ALBAN MEMBER, RESEARCH TEAM
OMAR DELOSO MEMBER, RESEARCH TEAM
ANNABELLA HERNANDEZ MEMBER, RESEARCH TEAM
MA. CRISTINA MANZO-DAGUDAG MEMBER, RESEARCH TEAM
WILLIAM RUSSELL MALANG MEMBER, RESEARCH TEAM
CHARMAINE PANLAQUE MEMBER, RESEARCH TEAM

REMEDIAL LAW COMMITTEE

ALJON D. DE GUZMAN REMEDIAL LAW COMMITTEE HEAD
JEFFREY D. ARZAGA ASST. REMEDIAL LAW COMMITTEE HEAD
ARWIN V. CABANTING MEMBER
GIRLIE VENUS E. DE LEON MEMBER
JAMES BRYAN Y. ESTELEYDES MEMBER
ERIK M.GALLARDO MEMBER
LAWRENCE P. HOLANDAY MEMBER
ANDRES S. JOSE JR. MEMBER
BIENVENIDO L. MABULAC II MEMBER
MELCHOR A. PELLEJA MEMBER
JUAN KARLO B. SILVA MEMBER

JUSTICE AMY JAVIER

JUDGE MYRA B. QUIAMBAO
DEAN LOPE FEBLE
ADVISERS
 FACULTY OF CIVIL LAW
UNIVERSITY OF SANTO TOMAS

ACADEMIC OFFICIALS

ATTY. NILO T. DIVINA REV. FR. ISIDRO C. ABAO, O.P.

DEAN REGENT

ATTY. ARTHUR B. CAPILI

FACULTY SECRETARY

ATTY. ELGIN MICHAEL C. PEREZ

LEGAL COUNSEL
UST CHIEF JUSTICE ROBERTO CONCEPCION LEGAL AID CLINIC

ATTY. AMADO E. TAYAG

SWDB COORDINATOR

LENY G. GADANIA, R.G.C.

GUIDANCE COUNSELOR
OUR DEEPEST APPRECIATION TO OUR
MENTORS & INSPIRATION
DEAN CARLOS M. ORTEGA
JUSTICE OSCAR C. HERRERA JR.
JUSTICE MARIA CRISTINA J. CORNEJO
DEAN LOPE FEBLE
JUSTICE AMY JAVIER
JUSTICE MYRA FERNANDEZ
JUDGE MYRA B. QUIAMBAO
JUDGE CESAR D. SANTA MARIA SR.
ATTY. GABRIEL T. ROBENIOL
ATTY. GREGORIO FERNANDEZ
DR. ALBERT PALACIOS
JUDGE RONALD MORENO
JUDGE PHILIP AGUINALDO
PROSECUTOR EMMANUEL VELASCO

For being our guideposts in understanding the intricate

sphere of Remedial Law.
- Academics Committee 2013
 DISCLAIMER

THE RISK OF USE, MISUSE OR NON-

USE OF THIS BAR REVIEW MATERIAL
SHALL BE BORNE BY THE USER/
NON-USER.
 REMEDIAL LAW
GENERAL PRINCIPLES would work injustice

CONCEPT OF REMEDIAL LAW 4. If to do so would involve

intricate problems of due
Q: What is the concept of remedial law? (2006 Bar process or impair the
Question) independence of the courts
(Tan Jr. v. Court of Appeals,
A: They are adjective laws which prescribe rules and forms G.R. No. 136368 January 16,
of procedure of enforcing rights or obtaining redress for 2002)
their invasion. They refer to rules of procedure by which Enacted by Congress The Supreme Court is
courts applying laws of all kinds can properly administer expressly empowered to
justice. They include rules of pleadings, practice and promulgate procedural rules
evidence. (Tan Jr. v. Court of Appeals, G.R. No. 136368
January 16, 2002)
Note: If the rule takes away a vested right, it is not procedural. If
Q: What is the importance of remedial law? the rule creates a right such as the right to appeal, it may be
classified as substantive matter; but if it operates as a means of
A: It plays a vital role in the administration of justice. It lies implementing an existing right, then the rule deals merely with
at the very core of procedural due process, which means a procedure (Fabian v. Desierto, G.R. No. 129742, Sept. 16, 1998).
law which hears before it condemns, one which proceeds
upon inquiry and renders judgment only after trial, and Q: Is the retroactive application of procedural laws
contemplates an opportunity to be heard before judgment violative of any right of a person?
is rendered (Albert v. University Publishing, G.R. No. L-
19118, January 30, 1965; Herrera, Vol. I, p. 1, 2007 ed.). A: No. A person has no vested right in any particular
remedy, and a litigant cannot insist on the application to
SUBSTANTIVE LAW VIS A VIS REMEDIAL LAW the trial of his case, whether civil or criminal, of any other
than the existing rules of procedure. (Tan Jr. v. Court of
Substantive Law Remedial Law Appeals, G.R. No. 136368 January 16, 2002)
Part of the law which Prescribes the methods of
Q: What are the principal sources of remedial law?
creates, defines or enforcing those rights and
regulates rights obligations created by
A:
concerning life, liberty or substantive law (Bustos v
1. Constitution
property (Primicias v. Lucero, 81 Phil 640)
Ocampo 81 Phil 650) or 2. Different laws creating the judiciary, defining and
the powers of agencies or allocating jurisdiction to courts of different levels
instrumentalities for the 3. Procedural laws and rules promulgated by the Supreme
administration of public Court
affairs, which when 4. Circulars
violated gives rise to a
cause of action (Bustos v. 5. Administrative orders
Lucero, 81 Phil 640) 6. Internal rules
Creates vested rights Does not create vested 7. Court decisions (Herrera, Vol. I, p. 2, 2007 ed.)
rights
Generally prospective in Generally, may be applied Q: How are remedial laws implemented in our system of
application retroactively government? (2006 Bar Question)
XPN: A: They are implemented through the judicial system,
1. The statute itself including the prosecutory service of courts and quasi-
expressly or by necessary judicial agencies.
implication provides that
pending actions are
excepted from its operation Q: How should the courts interpret the provisions of the
Rules of Court? (1998 Bar Question)
2. To apply it to pending
proceedings would impair A: GR: The Rules shall be liberally construed in order to
vested rights promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding
3. Under appropriate (Sec. 6, Rule 1 1997 Rules of Civil Procedure.).
circumstances, courts may
deny the retroactive XPN: The following shall be strictly construed:
application of procedural 1. Reglementary periods;
laws in the event that to do 2. Rule on forum shopping; and
so would not be feasible or

UNIVERSITY OF SANTO TOMAS 8

2013 GOLDEN NOTES
 JURISDICTION
3. Service of summons
A:
Q: What is the rule of uniform interpretation? 1. The existence of special or compelling circumstances;
2. The merits of the case;
A: The principle expressed in the maxim interpretare et 3. A cause not entirely attributable to the fault or
concordare legibus est optimus interpretendi, or that every negligence of the party favored by the suspension of
statute must be so construed and harmonized with other rules;
statutes as to form a uniform system of jurisprudence 4. A lack of any showing that the review sought is merely
applies in interpreting both sets of Rules such as the 1997 frivolous and dilatory; and
Rules on Civil Procedure and the Rule on Summary 5. The other party will not be unjustly prejudiced thereby
Procedure regarding the finality of judgments (Banares II v. (Sarmiento v. Zaratan, G.R. No. 167471, February 5,
Balising, G.R. No. 132624, Mar. 13, 2000; Herrera, Vol. I, p. 2007)
409, 2007 ed.).
Q: Does the Court have the power to stay proceedings and
RULE-MAKING POWER OF THE SUPREME COURT control its processes?

Q: What is the extent of the rule-making power of the
Supreme Court?
A: It has the power to promulgate rules concerning
a.) the protection and enforcement of constitutional
rights,
b.) pleading, practice, and procedure in all courts,
c.) the admission to the practice of law,
d.) the integrated bar, and
e.) legal assistance to the underprivileged (Art. VIII, Sec.
5, par. 5, 1987 Constitution)
A: Yes. The power to stay proceedings is incidental to the
power inherent in every court to control the disposition of
the cases on its dockets, considering its time and effort, and
that of counsel and the litigants. But if proceedings must be
stayed, it must be done in order to avoid multiplicity of
suits and prevent vexatious litigations, conflicting
judgments, and confusion between litigants and courts
(Security Bank Corp. v Judge Manuel Victorio, 468 SCRA
609).
NATURE OF PHILIPPINE COURTS

Q: What are the limitations on the rule-making power of MEANING OF A COURT

the Supreme Court?
It is an organ of the government, belonging to the judicial
A: department, whose function is the application of laws to
1. It shall provide a simplified and inexpensive controversies brought before it and the public
procedure for the speedy disposition of cases. administration of justice (Blacks Law Dictionary).
2. The rules must be uniform for all the courts of the
same grade. COURT AS DISTINGUISHED FROM A JUDGE
3. The rules must not diminish, increase or modify
substantive rights (Cruz, Philippine Political Law, Court Judge
p. 281, 2002 ed.). Simply an officer of such
tribunal (Wagenhorst v.
POWER OF THE SUPREME COURT TO AMEND AND It is a tribunal officially
Philadelphia Life
assembled under
SUSPEND PROCEDURAL RULES Insurance Co 358 Pa. 55
authority of law th
cited by Blacks 5
Q: May the Supreme Court amend the Rules of Court? edition)
Disqualification of a
A: Yes. The Supreme Court has the power to amend, repeal judge does not affect May be disqualified
or even establish new rules for a more simplified and the court
inexpensive process, and the speedy disposition of cases It is a being in Physical person (People
(Makati Insurance Co., Inc. v. Reyes, G.R. No. 167403, imagination ex rel. Herndon v Opekl,
August 6, 2008). comparable to a 188 III 194, 58 NE 1996,
th
corporation cited by Blacks 5 ed)
Q: May the Supreme Court suspend the application of the
Rules of Court and exempt a case from its operation? CLASSIFICATION OF PHILIPPINE COURTS

A: Yes. The courts have the power to relax or suspend 1. Regular courts
technical or procedural rules or to except a case from their a.
Supreme Court
operation when compelling reasons so warrant or when the b.
Court of Appeals
purpose of justice requires it (Commissioner of Internal c.
Regional Trial Courts
Revenue v. Migrant Pagbilao, Corporation, G.R. No. 159593, d.
Metropolitan Trial Courts, Municipal Trial Courts
Oct. 12, 2006). in Cities, Municipal Trial Courts , Municipal Circuit
Trial Courts
Q: What are the reasons that would warrant the 2. Special courts
suspension of the rules of procedure? a. Sandiganbayan

9 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
b. Court of Tax Appels sanction of positive law, for
c. Shari'a District Courts, Shari'a Circuit Courts equity finds no room for
3. Quasi-Courts or Quasi-Judicial Agencies application where there is
law (Herrera, Vol. I, p. 18,
COURTS OF ORIGINAL AND APPELLATE JURISDICTION 2007 ed.).
Decides a case according to Adjudicates a controversy
Courts of Original Courts of Appellate the promulgated law according to the common
jurisdiction jurisdiction precepts of what is right
Courts exercising Superior Courts and just without inquiring
jurisdiction in the first reviewing and deciding into the terms of the
instance cases previously decided statutes
by a lower court (21 CJS
Courts 3) Q: What are courts of record?

COURTS OF GENERAL AND SPECIAL JURISDICTION
Courts of General
jurisdiction
Those with
competence to decide
on their own
jurisdiction and to take
cognizance of all cases,
civil and criminal, of a
particular nature.
(21 CJS Courts 3)
CONSTITUTIONAL AND STATUTORY COURTS
Constitutional Court
Created by the
Constitution. e.g. SC
A: These are courts whose proceedings are enrolled and
which are bound to keep written records of all trials and
Courts of Special proceedings handled by them (Luzano v Romero et al L-
jurisdiction 33245, Sept. 30 1971). R.A. No. 6031 mandates all
Those which have only a Municipal Trial Courts to be courts of record.
special jurisdiction for a
particular purpose or PRINCIPLE OF JUDICIAL HIERARCHY
are clothed with special
powers for the A higher court will not entertain direct resort to it unless
performance of the redress desired cannot be obtained in the appropriate
specified duties beyond courts (Santiago v. Vasquez, 217 SCRA 167).
which they have no
authority of any kind. The Supreme Court is a court of last resort and must so
(21 CJS Courts 3) remain if it is to satisfactorily perform the duty assigned to
it.
Note: The Supreme Court may disregard the principle of hierarchy
of courts if warranted by the nature and importance of the issues
Statutory Court raised in the interest of speedy justice and to avoid future
Created by law other litigations (Riano, Civil Procedure: A Restatement for the Bar, p. 38,
than Constitution. 2009 ed).
e.g. CTA
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF
JUDICIAL STABILITY

Courts of equal and coordinate jurisdiction cannot interfere

Cannot be abolished by May be abolished by with each others orders. Thus, the RTC has no power to
Congress without Congress by just nullify or enjoin the enforcement of a writ of possession
amending the simply repealing the issued by another RTC. (Suico Industrial Corporation v Court
Constitution law which created of Appeals, 301 SCRA 212) The principle also bars a court
those courts from reviewing or interfering with the judgment of a co-
equal court over which it has no appellate jurisdiction or
Note: All courts in the Philippines except the Supreme Court are power of review (Villamor v Salas, 203 SCRA 540).
statutory courts. They have been created by statutory enactments
(Riano, Civil Procedure: A Restatement for the Bar, p. 40, 2009 ed.). Note: GR: No court has the authority to interfere by injunction with
The Sandiganbayan is only a constitutionally-mandated court since, the judgment of another court of coordinate jurisdiction or to pass
although its existence is provided under Constitution, its creation upon or scrutinize and much less declare as unjust a judgment of
was by statutory enactment. another court.

COURTS OF LAW AND EQUITY
Courts of Law Courts of Equity
Any tribunal duly Any tribunal administering
administering the laws of justice outside the law,
the land being ethical rather than
jural and belonging to the
sphere of morals rather
than of law. It is grounded
on the precepts of
conscience and not on any
XPN: The doctrine does not apply where a third party claimant is
involved (Santos v. Bayhon, G.R. No. 88643, July 23, 1991).
JURISDICTION
The power and authority of a court to try, hear, and decide
a case and the power to enforce its determination (21 CJS,
9)
Note: It derived from the Latin words juris and dico, which
literally means I speak of the law.

UNIVERSITY OF SANTO TOMAS 10

2013 GOLDEN NOTES
 JURISDICTION
JURISDICTION OVER THE SUBJECT MATTER
Q: Is the statement Jurisdiction is conferred by
substantive law accurate? Q: What is jurisdiction over the subject matter?

A: No, because only jurisdiction over the subject matter is
conferred by substantive law. Jurisdiction over the parties,
issues and res is governed by procedural laws (Riano, Civil
Procedure: A Restatement for the Bar, p. 139, 11th ed.).
JURISDICTION OVER THE PARTIES
A: It is the power or authority to hear and determine cases
to which the proceeding in question belongs (Reyes v. Diaz,
73 Phil 484).
Q: Can jurisdiction over subject matter be waived by
stipulation?

HOW JURISDICTION OVER THE PLAINTIFF IS ACQUIRED A: No. Jurisdiction over the subject matter cannot be
waived, enlarged or diminished by stipulation of the parties
It is acquired from the moment of filing the complaint, (Republic v Estipular, 336 SCRA 333).
petition or initiatory pleading (Davao Light & Power Co. v
CA, 204 SCRA 343). XPN: Estoppel by laches by failure to object to the
jurisdiction of the court for a long period of time and by
HOW JURISDICTION OVER THE DEFENDANT IS ACQUIRED invoking its jurisdiction in obtaining affirmative relief (Tijam
v. Sibonghanoy, 23 SCRA 29).
It is acquired either:
a. By his voluntary appearance in court and his Q: Distinguish jurisdiction over the subject matter from
submission to its authority jurisdiction over the person.
b. By valid service of summons
c. Other coercive process upon him (arrest in A:
criminal cases) Jurisdiction Over the Jurisdiction Over the
Subject Matter Person
Note: Jurisdiction over the defendant is not essential in actions in Determined by the Acquired by the filing of
rem or quasi in rem as long as the court has jurisdiction over the allegations of the complaint the petition in case of the
res (Herrera, Vol. I, p. 114, 2007 ed.).
(Riano, Civil Procedure: A plaintiff or by arrest (Rule
Restatement for the Bar, p. 113), by valid service of
Q: Does filing of pleadings seeking affirmative reliefs
144, 2009 ed.) summons or voluntary
constitute voluntary appearance?
submission to the courts
XPN: Where the real issues authority in case of the
A: GR: Seeking affirmative relief constitutes voluntary
are evident from the record defendant (Ibid. p. 158)
appearance, and the consequent submission of ones
of the case, jurisdiction over
person to the jurisdiction of the court.
the subject matter cannot
be made to depend on how
XPN: In the case of pleadings whose prayer is precisely for
the parties word or phrase
the avoidance of the jurisdiction of the court, which only
their pleadings (Herrera,
leads to a special appearance.
Vol. I, p. 2, 2007 ed.) e.g. in
ejectment cases in which
These pleadings are:
the defendant averred the
defense of the existence of
(1) In civil cases, motions to dismiss on the ground of lack of
tenancy relationship
jurisdiction over the person of the defendant, whether or
between the parties (Ibid
not other grounds for dismissal are included;
p.148)
(2) In criminal cases, motions to quash a complaint on the
Note: Tenancy relationship is
ground of lack of jurisdiction over the person of the not presumed and it is not
accused; and enough that it is alleged. There
must be evidence to prove that
(3) Motions to quash a warrant of arrest. it exists and that all its
elements are established
The first two are consequences of the fact that failure to (Salmorin v. Zaldivar, G.R. No.
file them would constitute a waiver of the defense of lack 169691, July 23, 2008).
of jurisdiction over the person. The third is a consequence Conferred by law which may It is sometimes made to
of the fact that it is the very legality of the court process be either the Constitution depend, indirectly at
forcing the submission of the person of the accused that is or a statute least, on the partys
the very issue in a motion to quash a warrant of arrest volition
(Miranda v. Tuliao, G.R. No. 158763, March 31, 2006).

11 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

JURISDICTION vs. THE EXERCISE OF JURISDICTION
Jurisdiction
It is the authority to hear
and decide cases. It does
not depend upon the
regularity of the exercise of
that power or upon the
rightfulness of the decision
made (Lim, et al v Hon.
Felipe Pacquing et al, 55
SCAD 112, GR 115044, Sept
1, 1994)
ERROR OF JURISDICTION AS DISTINGUISHED FROM ERROR
OF JUDGMENT (1989 Bar Question)
Error of Jurisdiction
One where the court, officer
or quasi-judicial body acts
without or in excess of
jurisdiction, or with grave
abuse of discretion
Renders a judgment void or
at least voidable (Sec 1(a)
and (b) Rule 16; Rule 65)
Correctible by certiorari
There is an exercise of
jurisdiction in the absence of
jurisdiction
HOW JURISDICTION IS CONFERRED AND DETERMINED
REMEDIAL LAW
Exercise of Jurisdiction
It is any act of the court
pursuant to such authority,
which includes making
decisions. If there is
jurisdiction over the person
and subject matter, the
resolution of all other
questions arising in the
case is but an exercise of
jurisdiction (Herrera v
Baretto, 25 Phil 245; Palma
v Q & S Inc, L-20366, May
16, 1966).
Error of Judgment
One that the court may
commit in the exercise
of jurisdiction; it
includes errors of
procedure or mistakes in
the courts findings
Does not make the
courts decision void
Correctible by appeal
(Henderson et al v Tan
87 Phil 466)
The court acted with
jurisdiction but
committed procedural
errors in the
appreciation of the facts
or the law
6. Parties silence, acquiescence or consent (Riano, Civil
Procedure: A Restatement for the Bar, p. 143, 11th ed.).
Q: How is jurisdiction over the subject matter
determined?
A: It is determined by the allegations of the complaint
(Baltazar v Ombudsman, 510 SCRA 74) regardless of
whether or not the plaintiff is entitled to his claims asserted
therein (Gocotano v Gocotano, 469 SCRA 328).
DOCTRINE OF PRIMARY JURISDICTION
Courts will not resolve a controversy involving a question
which is within the jurisdiction of an administrative
tribunal, especially where the question demands the
exercise of sound administrative discretion requiring the
special knowledge and experience of said tribunal in
determining technical and intricate matters of fact (Villaflor
v. CA, G.R. No. 95694, Oct. 9, 1997).
Q: What is the Doctrine of Ancillary Jurisdiction?
A: It involves the inherent or implied powers of the court to
determine issues incidental to the exercise of its primary
jurisdiction.
Note: Under its ancillary jurisdiction, a court may determine all
questions relative to the matters brought before it, regulate the
manner in which a trial shall be conducted, determine the hours at
which the witnesses and lawyers may be heard, and grant an
injunction, attachment or garnishment.
Q: What does the doctrine of exhaustion of administrative
remedies state?
A: It states that recourse through court action cannot
prosper until after all such administrative remedies have
first been exhausted. The non-observance of the doctrine
of exhaustion of administrative remedies results in lack of
cause of action (National Electrification Administration v.
Val L. Villanueva, G.R. No. 168203, Mar. 9, 2010).

Q: How is jurisdiction over the subject matter conferred? Note: The rule on exhaustion of administrative remedies and
doctrine of primary jurisdiction applies only when the
A: It is conferred by law, that is B.P. Blg 129, otherwise administrative agency exercises quasi-judicial or adjudicatory
function (Associate Communications and Wireless Services v.
known as Judiciary Reorganization Act. It does not
Dumalao, G.R. 136762, Nov. 21, 2002).
depend on the objection or the acts or omissions of the
parties or anyone of them (Republic v Sangalang, 159 SCRA
Q: What are the exceptions to the doctrine of exhaustion
515 (1988); PNB v Florendo, 206 SCRA 582, 1992).
of administrative remedies?
Q: What are the instances in which jurisdiction over the
A:
subject matter cannot be conferred?
1. Where respondent official acted in utter disregard of
due process;
A:
2. Where the questions involved are purely judicial or a
1. By the administrative policy of any court;
legal one;
2. A courts unilateral assumption of jurisdiction;
3. When the controverted act is patently illegal or was
3. An erroneous belief by the court that it has jurisdiction;
performed without jurisdiction or in excess of
4. By the parties through a stipulation e.g. contract;
jurisdiction;
5. The agreement of the parties acquired through, or
4. When there is estoppel on the part of the
waived, enlarged or diminished by, any act or omission
administrative agency concerned;
of the parties;
5. When its application may cause great and irreparable
damage;

UNIVERSITY OF SANTO TOMAS 12

2013 GOLDEN NOTES
 JURISDICTION
6. When the respondent is a Department Secretary, whose
acts as an alter ego of the President bears the implied
or assumed approval of the latter unless actually
disapproved by him;
7. When to require administrative remedies would be
unreasonable;
8. When the insistence in its observance would result in
the nullification of the claim being asserted;
9. When the subject matter is a private land in land case
proceedings;
10. When it does not provide a plain, speedy and adequate
remedy;
11. Where there are circumstances indicating the urgency
of judicial intervention (Paat v. CA, G.R. No.
111107. Jan. 10, 1997);
12. Exhaustion of administrative remedies may also be
considered waived if there is a failure to assert it for an
unreasonable length of time (Rep. v. Sandiganbayan,
G.R. Nos. 112708-09, Mar. 29, 1996);
13. A civil action for damages may, however, proceed
notwithstanding the pendency of an administrative
action (Escuerte v. CA, G.R. No. L-53485 Feb. 6, 1991)
14. When the claim involved is small;
15. When strong public interest is involved; and
16. In quo warranto proceedings (Castro v. Gloria, G.R. No.
132174, Aug. 20, 2001).
Q: Is it proper for the court to dismiss a case on the
ground of lack of jurisdiction in case of failure to exhaust
administrative remedies?
A: No. The ground should not be lack of jurisdiction but lack
of cause of action as it renders the action premature
(Carale v. Abarintos, G.R. No. 120704, March 3, 1997;
Pestanas v. Dyogi, 81 SCRA 574).
DOCTRINE OF ADHERENCE TO JURISDICTION/CONTINUITY
OF JURISDICTION
GR: Jurisdiction, once attached, cannot be ousted by
subsequent happenings or events although of a character
which would have prevented jurisdiction from attaching in
the first instance, and the court retains jurisdiction until it
finally disposes of the case.
XPNs:
1. Where a subsequent statute expressly prohibits
the continued exercise of jurisdiction;
2. Where the law penalizing an act which is
punishable is repealed by a subsequent law;
3. When accused is deprived of his constitutional
right such as where the court fails to provide
counsel for the accused who is unable to obtain
one and does not intelligently waive his
constitutional right;
4. Where the statute expressly provides, or is
construed to the effect that it is intended to
operate as to actions pending before its
enactment;
5. When the proceedings in the court acquiring
jurisdiction is terminated, abandoned or declared
void;
6. Once appeal has been perfected;
13
7. Curative statutes (Herrera, Vol. I, p. 106, 2007
ed.).
Q: Does the retroactivity of a law affect jurisdiction?
A: No. Jurisdiction being a matter of substantive law, the
established rule is that the statute in force at the time of
the commencement of the action determines jurisdiction.
(Herrera, Vol. I, p. 105, 2007 ed.)
OBJECTIONS TO JURISDICTION OVER THE SUBJECT
MATTER
Q: What is the effect of lack of jurisdiction over the
subject matter?
A: When it appears from the pleadings or evidence on
record that the court has no jurisdiction over the subject
matter, the court shall dismiss the same (Sec. 1, Rule 9).
Q: May jurisdiction of the court be raised or questioned at
any time?
A: GR: Yes. The prevailing rule is that jurisdiction over the
subject matter may be raised at any stage of the
proceedings and even for the first time on appeal (Riano,
Civil Procedure: A Restatement for the Bar, p. 154, 2009
ed.).
XPNs:
1. Estoppel by laches. SC barred a belated objection
to jurisdiction that was raised only after an
adverse decision was rendered by the court
against the party raising the issue of jurisdiction
and after seeking affirmative relief from the court
and after participating in all stages of the
proceedings (Tijam v. Sibonghanoy, G.R. No. L-
21450, Apr. 15, 1968).
2. Public policy One cannot question the
jurisdiction which he invoked, not because the
decision is valid and conclusive as an adjudication,
but because it cannot be tolerated by reason of
public policy (Filipinas Shell Petroleum Corp. v.
Dumlao, G.R. No. L-44888, Feb. 7, 1992).
3. A party who invokes the jurisdiction of the court
to secure affirmative relief against his opponents
cannot repudiate or question the same after
failing to obtain such relief (Tajonera v. Lamaroza,
G.R. No. L-48907, 49035, Jan. 19, 1982).
Note: Under the Omnibus Motion Rule, a motion attacking a
pleading like a motion to dismiss shall include all grounds then
available and all objections not so included shall be deemed
waived. Even in the absence of lack of jurisdiction raised in a
motion to dismiss, a party may, when he files an answer, still raise
the lack of jurisdiction as an affirmative defense because such
defense is not barred under the omnibus motion rule.
EFFECT OF ESTOPPEL ON OBJECTIONS TO JURISDICTION
The active participation of a party in a case and seeking of
affirmative reliefs is tantamount to recognition of that
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
courts jurisdiction and will bar a party from impugning the
courts jurisdiction. This only applies to exceptional
circumstances (Francel Realty Corp. v. Sycip, 469 SCRA 424;
Concepcion v. Regalado, GR 167988, Feb. 6, 2007).
JURISDICTION OVER THE ISSUES
The power of the court to try and decide issues raised in
the pleadings of the parties (Reyes v. Diaz, 73 Phil 484) or
by their agreement in a pre-trial order or those tried by the
implied consent of the parties (Sec 2, Rule 18, Rules of
Court).
It may also be conferred by waiver or failure to object to
the presentation of evidence on a matter not raised in the
pleadings. The issues tried shall be treated in all respect as
if they had been raised in the pleadings (Sec 5, Rule 10,
Rules of Court).
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
Q: How is jurisdiction over the res acquired?
A: It is acquired either by:
1. The seizure of the property under legal process.
2. As a result of the institution of legal proceedings,
in which the power of the court is recognized and
made effective (Banco Espaol Filipino vs.
Palanca, 37 Phil. 291).
3. The court by placing the property of thing under
its custody (custodia legis). Example: attachment
of property.
4. The court through statutory authority conferring
upon it the power to deal with the property or
thing within the courts territorial jurisdiction.
Example: suits involving the status of the parties
or suits involving the property in the Philippines
of non-resident defendants (Riano, Civil
Procedure: A Restatement for the Bar, p.133,
2009 ed.).
JURISDICTION OF COURTS
1. Boundary dispute between municipalities
RTCs are courts of general jurisdiction. Since there is no
legal provision specifically governing jurisdiction over
boundary disputes between a municipality and an
independent component city of the same province, it
follows that RTCs have the power and authority to hear and
determine such controversy (Municipality of Kananga v.
Madrona, G.R. No. 141375, Apr. 30, 2003).
2. Expropriation
It is within the jurisdiction of the RTC because it is incapable
of pecuniary estimation. It does not involve the recovery of
sum of money. Rather, it deals with the exercise by the
government of its authority and right to take property for
public use.
3. Labor dispute
An action for damages for abuse of right as an incident to
dismissal is within the exclusive jurisdiction of the labor
arbiter. But the labor arbiter has no jurisdiction for claims
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
of damages based on quasi-delict which has no reasonable
connection with the employer-employee relations claims
under the Labor Code (Ocheda v. CA, G.R. No. 85517, Oct.
16, 1992).
Note: Where no employer-employee relationship exists between
the parties and no issue involved may be resolved by reference to
the Labor Code, other labor statutes or any collective bargaining
agreement, it is the regular courts that has jurisdiction (Jaguar
Security Investigation Agency v. Sales, G.R. No. 162420, Apr. 22,
2008).
4. Forcible entry and unlawful detainer
The MTC has exclusive original jurisdiction. In such cases,
when the defendant raises the question of ownership in his
pleadings and the question of possession cannot be
resolved without deciding the question of ownership, the
issue of ownership shall be resolved only to determine the
issue of possession. All ejectment cases are covered by the
Rule on Summary Procedure and are within the jurisdiction
of the MTCs regardless of whether they involve questions
of ownership. The courts in ejectment cases may determine
questions of ownership whenever necessary to decide the
question of possession (Gayoso v. Twenty-Two Realty
Development Corp., G.R. No. 147874, July 17, 2006;
Santiago v. Pilar Development Corp., G.R. No. 153628, July
20, 2006).
5. Authority to conduct administrative investigations over
local elective officials and to impose preventive suspension
over elective provincial or city officials
It is entrusted to the Secretary of Local Government and
concurrent with the Ombudsman upon enactment of R.A.
6770. There is nothing in the Local Government Code of
1991 to indicate that it has repealed, whether expressly or
impliedly, the pertinent provisions of the Ombudsman Act
(Hagad v. Dadole, G.R. No. 108072, Dec. 12, 1995).
6. Appeals involving orders arising from administrative
disciplinary cases originating from the Office of the
Ombudsman
It may be appealed to the Supreme Court by filing a petition
for certiorari within 10 days from receipt of the written
notice of the order, directive or decision or denial of the
motion for reconsideration in accordance with Rule 45 of
the Rules of Court (Sec. 27, R.A. 6770).
7. Public school teachers
Generally, the Ombudsman must yield to the Division
School Superintendent in the investigation of
administrative charges against public school teachers
(Ombudsman v. Galicia, G.R. No. 167711, Oct. 10, 2008).
8. Enforcement of a money claim against a local
government unit
Commission on Audit (COA) has the primary jurisdiction to
pass upon the money claim. It is within the COA's domain
to pass upon money claims against the government or any
subdivision thereof as provided for under Section 26 of the
Government Auditing Code of the Philippines. Courts may
raise the issue of primary jurisdiction sua sponte (on its own
will or motion; means to act spontaneously without
prompting from another party) and its invocation cannot be
14
 JURISDICTION
waived by the failure of the parties to argue it as the
doctrine exists for the proper distribution of power
between judicial and administrative bodies and not for the
convenience of the parties (Euro-Med Laboratories, Phil.,
Inc. v. Province of Batangas, G.R. No. 148106, July 17,
2006).

SUPREME COURT

Q: What are the cases which must be decided by the SC en banc?

A:
1. All cases involving the constitutionality of a treaty, international or executive agreement, or law;
2. Cases involving the constitutionality, application or operation of presidential decrees, proclamations, orders, instructions,
ordinances and other regulations;
3. A case where the required number of vote in a division is not obtained;
4. A doctrine or principle laid down in a decision rendered en banc or by division is modified, or reversed;
5. All other cases required to be heard en banc under the Rules of Court (Sec. 5, Art. VIII, 1987 Constitution).

Civil Cases Criminal Cases

Exclusive Original
Petitions for issuance of writs of certiorari, prohibition and Petitions for issuance of writs of certiorari,
mandamus against the following: prohibition and mandamus against the following:
1. Court of Appeals 1. Court of Appeals
2. Court of Tax Appeals 2. Sandiganbayan
3. Commission on Elections En Banc
4. Commission on Audit
5. Sandiganbayan
Appellate
1. Petitions for review on certiorari against: 1. In cases where the Court of Appeals
a. CA; imposes reclusion perpetua, life
b. CTA; imprisonment or a lesser penalty, the
c. Sandiganbayan judgment may be appealed to the Supreme
d. Regional Trial Courts in cases involving- Court by notice of appeal filed with the
Court of Appeals. (A.M. No. 00-5-03-SC,
i. If no question of fact is involved and the case September 28, 2004).
involves:
a) Constitutionality or validity of treaty, 2. Automatic review for cases of death penalty
international or executive agreement, rendered by the Court of Appeals (A.M. No.
law, presidential decree, proclamation, 00-5-03-SC, September 84, 2004).
order, instruction, ordinance or
regulation Note: Where the judgment also imposes a lesser
b) Legality of tax, impost, assessments, or penalty for offenses committed on the same
toll, or penalty in relation thereto occasion or which arose out of the same
occurrence that gave rise to the more severe
c) Cases in which jurisdiction of lower court
offense for which the penalty of death is imposed,
is in issue and the accused appeals, the automatic review
ii. All cases in which only errors or questions of from the Court of Appeals to the Supreme Court
law are involved. shall include such lesser offense (A.M. No. 00-5-
1. Special civil action of certiorari filed within 30 days 03-SC, September 28, 2004).
against the COMELEC / COA
3. Petition for review on certiorari (Rule 45)
from the Sandiganbayan if penalty is less
than death, life imprisonment or reclusion
perpetua in criminal cases, and, in civil cases;
(A.M. No. 00-5-03-SC, October 12, 2004).
4. Notice of appeal from the Sandiganbayan if
it imposes life imprisonment or reclusion
perpetua or where a lesser penalty is
imposed involving offenses committed on
the same occasion or which arose out of the
same occurrence that gave rise to the more
serious offense for which the penalty of

15 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

death, reclusion perpetua of life

imprisonment is imposed (A.M. No. 00-5-
03-SC, October 12, 2004).
5. Automatic review of death penalty imposed
by the Sandiganbayan in the exercise of its
original jurisdiction (A.M. No. 00-5-03-SC,
October 12, 2004).
6. Automatic review whenever the
Sandiganbayan, in the exercise of its
appellate jurisdiction, finds that the penalty
of death, reclusion perpetua or life
imprisonment should be imposed (A.M. No.
00-5-03-SC, October 12, 2004).
7. Appeals from RTC in which only errors or
questions of law are involved.
Concurrent
With CA
1. Petitions for issuance of writs of certiorari, prohibition Petitions for issuance of writs of certiorari,
and mandamus against the following: prohibition and mandamus against the RTC and
a. NLRC under the Labor Code. lower courts.

Note: The petitions must first be filed with the CA, otherwise,
they shall be dismissed (St. Martin Funeral Home v. CA, G.R. No.
130866, Sept. 16, 1998).

b. Civil Service Commission

c. Quasi-judicial agencies (file with the CA first)
d. RTC and lower courts;

2. Petitions for issuance of writ of kalikasan (Sec. 3, Rule 7,

A.M. No. 09-6-8-SC).
With CA and RTC
1. Petitions for habeas corpus and quo warranto; and Petitions for issuance of writs of certiorari,
2. Petitions for issuance of writs of certiorari, prohibition prohibition and mandamus against the lower
and mandamus against the lower courts or other bodies courts or bodies.
With CA, SB and RTC
1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and
2. Petition for writ of habeas data, where the action writ of habeas data
involves public data or government office
With RTC With Sandiganbayan
Actions affecting ambassadors and other public ministers and Petitions for mandamus, prohibition, certiorari,
consuls injunctions and ancillary writs in aid of its
appellate jurisdiction including quo warranto
arising or that may arise in in cases filed under
EO Nos. 1, 2, 14 and 14-A

COURT OF APPEALS

Civil Cases Criminal Cases

Exclusive Original
Actions for annulment of judgments of RTC based upon 1. Actions for annulment of judgments of RTC
extrinsic fraud or lack of jurisdiction (Sec. 9 B.P. 129). (Sec. 9 B.P. 129).
2. Crimes of Terrorism under the Human
Security Act of 2007 or R.A. 9372
Appellate
1. Final judgments, decisions, resolutions, orders, Judgments or decisions of RTC via notice of appeal
awards of: (except those appealable to the SC or SB):
a. RTC
i. In the exercise of its original 1. exercising its original jurisdiction;
jurisdiction; 2. exercising its appellate jurisdiction; and
ii. In the exercise of its appellate 3. where the imposable penalty is:
jurisdiction;
a. life imprisonment or reclusion perpetua;

UNIVERSITY OF SANTO TOMAS 16

2013 GOLDEN NOTES
 JURISDICTION

b. Family Courts;
b. a lesser penalty for offenses committed
c. RTC on the questions of constitutionality, on the same occasion or which arose from
validity of tax, jurisdiction involving questions of the same occurrence that gave rise to the
fact, which should be appealed first to the CA; offense punishable reclusion perpetua or
life imprisonment (Sec. 3, Rule 122).
d. Appeals from RTC in cases appealed from
MTCs which are not a matter of right. Automatic review in cases of death penalty rendered
by the RTC, in which case, it may decide on whether
2. Appeal from MTC in the exercise of its or not to affirm the penalty of death. If it affirms the
delegated jurisdiction (R.A. 7691). penalty of death, it will render a decision but will not
3. Appeals from Civil Service Commission; enter the judgment because it will then be
4. Appeals from quasi-judicial agencies under Rule forwarded to the SC
43;
5. Appeals from the National Commission on Note: Death penalty imposed by the RTC is elevated to the
Indigenous Peoples (NCIP); and Court of Appeals by automatic review while death penalty
6. Appeals from the Office of the Ombudsman in imposed by the Sandiganbayan whether in its original or
appellate jurisdiction is elevated to the Supreme Court for
administrative disciplinary cases (Mendoza-Arce v.
automatic review.
Office of the Ombudsman, G.R. No. 149148, Apr. 5,
2002).
Concurrent
With SC
1. Petitions for issuance of writs of certiorari, Petitions for issuance of writs of certiorari, prohibition
prohibition and mandamus against the following: and mandamus against the RTCs and lower courts.
a. NLRC under the Labor Code.
b. Civil Service Commission
c. Quasi-judicial agencies
d. RTCs and other lower courts.
2. Petitions for issuance of writ of kalikasan (Sec. 3,
Rule 7, A.M. No. 09-6-8-SC).
With SC and RTC
1. Petitions for habeas corpus and quo warranto; Petitions for issuance of writs of certiorari, prohibition
and and mandamus against the lower courts or bodies.
2. Petitions for the issuance of writs of certiorari,
prohibition and mandamus against the lower
courts
With SC, SB and RTC
1. Petitions for the issuance of writ of amparo Petitions for the issuance of writ of amparo and writ
2. Petition for writ of habeas data, where the of habeas data
action involves public data or government office

COURT OF TAX APPEALS

Tax Cases Criminal Cases

Exclusive Original
In tax collection cases involving final and executory All criminal cases arising from violation of the NIRC of
assessments for taxes, fees, charges and penalties the TCC and other laws, part of laws, or special laws
where the principal amount of taxes and fees, exclusive administered by the BIR or the BOC where the
of charges and penalties claimed is not less than P1M. principal amount of taxes and fees, exclusive of
charges and penalties claimed is less that P1M or
where there is no specified amount claimed (the
offenses or penalties shall be tried by the regular
courts and the jurisdiction of the CTA shall be
appellate)
Appellate
In tax collection cases involving final and executory 1. Over appeals from the judgment, resolutions or
assessments for taxes, fees, charges and penalties orders of the RTC in tax cases originally decided by
where the principal amount of taxes and fees, exclusive them, in their respective territorial jurisdiction,
of charges and penalties claimed is less than P1M tried 2. Over petitions for review of the judgments,
by the proper MTC, MeTC and RTC. resolutions or orders of the RTC in the exercise of
their appellate jurisdiction over tax cases originally

17 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

decided by the MeTCs, MTCs, and MCTCs in their

respective jurisdiction
Exclusive appellate jurisdiction to review by appeal (Sec.7, R.A. 9282)
From Commissioner of Internal Revenue
1. Decisions in cases involving disputed assessments, refunds of internal revenue taxes, fees or other charges,
penalties in relation thereto, or other matters arising under the NIRC or other laws administered by BIR;
2. Inaction by CIR in cases involving disputed assessments, refunds of IR taxes, fees or other charges, penalties
in relation thereto, or other matters arising under the NIRC or other laws administered by BIR, where the NIRC or
other applicable law provides a specific period of action, in which case the inaction shall be deemed an implied
denial;(via petitition for review under Rule 42)
From RTC
Decisions, orders or resolutions of the in local taxes originally decided or resolved by them in the exercise of
their original or appellate jurisdiction; (via petitition for review under Rule 43)
From Commissioner of Customs
1. Decisions in cases involving liability for customs duties, fees or other charges, seizure, detention or
release of property affected, fines, forfeitures or other penalties in relation thereto, or
2. Other matters arising under the Customs law or other laws, part of laws or special laws administered
by BOC; (via petitition for review under Rule 42)
From Central Board of Assessment Appeals
Decisions in the exercise of its appellate jurisdiction over cases involving the assessment and taxation of real
property originally decided by the provincial or city board of assessment appeals; (via petitition for review under
Rule 43)
From Secretary of Finance
Decision on customs cases elevated to him automatically for review from decisions of the Commissioner of
Customs which are adverse to the government under Sec. 2315 of the Tariff and Customs Code; (via petitition for
review under Rule 42)
From Secretary of Trade and Industry and the Secretary of Agriculture
Decisions of Secretary of Trade and Industry in the case of non-agricultural product, commodity or article, and
the Secretary of Agriculture in the case of agricultural product, commodity or article, involving dumping duties
and counterveiling duties under Secs. 301 and 302, respectively, of the Tariff and Customs Code, and safeguard
measures under RA 8800, where either party may appeal the decision to impose or not to impose said duties.
(via petitition for review under Rule 42)

SANDIGANBAYAN

Civil Cases Criminal Cases

Exclusive Original
Cases involving violations of:
a. EO No. 1 (Creating the PCGG);
b. EO No. 2 (Illegal Acquisition and
Misappropriations of Ferdinand Marcos, Imelda
Marcos their close relatives, subordinates, business time of the commission of the offense:
associates, dummies, agents or nominees);
c. EO No. 14 [Cases involving the ill-gotten wealth
of the immediately mentioned persons (Marcos
and dummies)]; and
d. EO No. 14-A (amendments to EO No. 14) (Sec. 2,
R.A. 7975 as amended by R.A. 8294).
1. Violation of R.A. 3019 (Anti-Graft and Corrupt Practices
Act) where one or more of the accused are officials
occupying the following positions in the government,
whether in permanent. Acting or interim capacity, at the
a. Officials occupying a position classified
as Grade 27 or higher of the
Compensation and Position
Classification Act of 1989 (R.A. 6758)
in the:
i. Executive branch
including those occupying the
position of regional director; and
ii. All other national or
local officials.
b. Members of Congress
c. Members of the judiciary without
prejudice to the Constitution; and
d. Chairmen and members of the
Constitutional Commissions without
prejudice to the Constitution.
2. Felonies or offenses, whether simple or complexed
with other crimes committed by the public officials and
employees above mentioned in relation to their office;
and

UNIVERSITY OF SANTO TOMAS 18

2013 GOLDEN NOTES
 JURISDICTION

3. Cases filed pursuant to EO Nos. 1, 2, 14 and 14-A

(Sec. 2, R.A. 7975 as amended by R.A. 8249).
Appellate
Appeals from final judgments, resolutions or orders of the
RTC, whether in the exercise of their original or appellate
jurisdiction, in cases involving public officials or employees
not otherwise mentioned in the preceding enumeration.
Concurrent
With SC
Petitions for certiorari, prohibition, mandamus, Petitions for certiorari, prohibition, mandamus, habeas
habeas corpus, injunction and other ancillary writs corpus, injunction and other ancillary writs in aid of its
in aid of its appellate jurisdiction, including quo appellate jurisdiction, including quo warranto arising in
warranto arising in cases falling under Executive cases falling under Executive Order Nos. 1, 2, 14 and 14-A.
Order Nos. 1, 2, 14 and 14-A.
With SC, CA and RTC
Petitions for the issuance of writ of amparo and Petitions for the issuance of writ of amparo and writ of
writ of habeas data. habeas data.

Q: Governor Charles of Tarlac was charged with indirect

bribery before the Sandiganbayan for accepting a car in
exchange for the award of a series of contracts for medical
supplies. The Sandiganbayan, after going over the
information, found the same to be valid and ordered the
suspension of Charles. The latter contested the suspension
claiming that under the law (Sec. 13, R.A. 3019), his
suspension is not automatic upon the filing of the
information and his suspension under Sec. 13, R.A. 3019 is
in conflict with Sec. 5 of the Decentralization Act of 1967
(R.A. 5185). The Sandiganbayan overruled Charles
contention stating that the suspension under the
circumstances is mandatory. Is the court's ruling correct?
(2001 Bar Question)

A: Yes. Charles suspension is mandatory, although not

automatic. It is mandatory after the determination of the
validity of the information in a pre-suspension hearing. The
purpose of the suspension is to prevent the accused public
officer from frustrating or hampering his prosecution by
intimidating or influencing witnesses or tampering with
evidence or from committing further acts of malfeasance
while in office.

REGIONAL TRIAL COURTS

Civil Cases Criminal Cases

Exclusive Original
1. Actions in which the subject of litigation is incapable of pecuniary
estimation;
2. Actions involving title to or possession of real property or any
interest therein where the assessed value exceeds P20,000 or
P50,000 in Metro Manila, except forcible entry and unlawful
detainer;
3. Actions in admiralty and maritime jurisdiction where demand or
claim exceeds P300,000 or P400,000 in Metro Manila;
4. Matters of probate, testate or intestate, where gross value of
estate exceeds P300,000 or P400,000 in Metro Manila;
5. Cases not within the exclusive jurisdiction of any court, tribunal,
person or body exercising judicial or quasi-judicial function;
6. Civil actions and special proceedings falling within exclusive
original jurisdiction of Juvenile and Domestic Relations Court and
Court of Agrarian Reforms;
7. Other cases where the demand, exclusive of interest, damages,
1. Criminal cases not within exclusive jurisdiction
of any court, tribunal or body (Sec. 20, BP 129).
a. Includes criminal cases where the
penalty provided by law exceeds 6 years
imprisonment irrespective of the fine (R.A. 7691).
b. Includes criminal cases not falling within
the exclusive original jurisdiction of the
Sandiganbayan where the imposable penalty is
imprisonment more than 6 years and none of the
accused is occupying positions classified as
Grade 27 and higher (Sec. 4, P.D. 1606 as
amended by R.A. 8249).
2. Cases where the only penalty provided by law
is a fine exceeding P4,000;
3. Other laws which specifically lodge jurisdiction
in the RTC:

19 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

attorneys fees, litigation expenses and costs, or value of property in a. Law on written defamation or libel;
controversy exceeds P300,000 or P400,000 in Metro Manila (Sec. 19, b. Decree on Intellectual Property;
BP 129 as amended by R.A. 7691); and c. Violations of Dangerous Drugs Act
8. Intra-corporate controversies under Sec. 5.2 of the Securities and regardless of the imposable penalty
Regulation Code. except when the offender is under 16
and there are Juvenile and Domestic
Relations Court in the province.
4. Cases falling under the Family Courts in areas
where there are no Family Courts (Sec.24, B.P.
129).
5. Election offenses (Omnibus election code)
even if committed by an official with salary grade
of 27 or higher
Concurrent
With SC, SB and CA
1. Writ of amparo Petitions for the issuance of writ of amparo and
2. Writ of habeas data writ of habeas data
With SC
Actions affecting ambassadors and other public ministers and
consuls [Sec. 21 (2) of BP 129]
With SC and CA
1. Certiorari, prohibition and mandamus against lower courts and
bodies;
2. Habeas corpus and quo warranto;
With MTC
Cases involving enforcement or violations of environmental and
other related laws, rules and regulations (Sec. 2, Rule 1, A.M. No. 09-
6-8-SC).
Special
SC may designate certain branches of RTC to try exclusively criminal cases, juvenile and domestic relations cases, agrarian
cases, urban land reform cases not falling within the jurisdiction of any quasi-judicial body and other special cases in the
interest of justice (Sec. 23, BP 129).
Appellate
GR: All cases decided by lower courts (MTC etc.) in their respective territorial jurisdictions.
XPN: Decisions of lower courts in the exercise of delegated jurisdiction.

Q: What is the test to determine whether an action is
capable of pecuniary estimation?
A: The criterion is the nature of the principal action or the
remedy sought. 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 MTCs or in the
RTCs would depend on the amount of the claim.
However, where the basic issue is something other than the
right to recover a sum of money, where the money claim is
purely incidental to, or a consequence of, the principal
relief sought like specific performance suits and in actions
for support, or for annulment of a judgment or foreclosure
of mortgage, such actions are incapable of pecuniary
estimation, and are cognizable exclusively by the RTCs
(Barangay Piapi v. Talip, G.R. No. 138248, Sept. 7, 2005
Q: What are the intra-corporate controversies that are
within the jurisdiction of the RTC?
A:
a. Cases involving devises or schemes employed by or
any acts, of the board of directors, business associates, its
officers or partnership, amounting fraud or
misrepresentation which may be detrimental to the
interest of the public and/or the stockholders, partners,
members of the associations or organizations registered
with the Security and Exchange Commission;
b. Controversies arising out of intra-corporate or
partnership relations, between and among stockholders,
members or associates, respectively; and between such
corporation, partnership or association and the state in so
far as it concerns their individual franchise or right to exist
as such entity;
c. Controversies in the election or appointments of
directors, trustees, officers or managers of such
corporation, partnerships or associations; and
d. Petitions of corporations, partnerships or associations
to be declared in the state of suspension of payments in
cases where the corporation, partnership or association
posses sufficient property to cover all its debts but foresees
the impossibility of meeting them when they respectively
fall due or in cases where the corporation, partnership or
association has no sufficient assets to cover its liabilities but
is under the management of a Rehabilitation Receiver or
Management Committee (Sec. 5.2, SRC).

UNIVERSITY OF SANTO TOMAS 20

2013 GOLDEN NOTES
 JURISDICTION
FAMILY COURTS

Civil Cases Criminal Cases

Exclusive Original
1. Petitions for guardianship, custody of children,
habeas corpus in relation to minor;
2. Petitions for adoption of children and its
revocation;
3. Complaints for annulment and declaration of
nullity of marriage and those relating to marital
status and property relations of spouses or those
living together under different status and
agreements; and petitions for dissolution of
conjugal partnership of gains;
4. Petitions for support and/or acknowledgment;
5. Summary judicial proceedings under the
Family Code of the Philippines;
6. Petitions for declaration of status of children
as abandoned, dependent or neglected children,
petitions for voluntary or involuntary commitment
of children, the suspension, termination, or
restoration of parental authority and other cases
cognizable under PD 603, EO 56 (Series of 1986)
and other related laws; and
7. Petitions for the constitution of the family
home (rendered unnecessary by Art. 153, Family
Code) (Sec. 5, R.A. 8369).
1. Where one or more of the accused is/are below
18 years of age but not less than 9 years of age;
2. When one or more of the victims is a minor at the
time of the commission of the offense (R.A. 8369,
Act establishing the family courts);
3. Cases against minors cognizable under the
Dangerous Drugs Act, as amended; and
4. Violations of R.A. 7610 or the Special Protection
of Children Against Child Abuse, Exploitation and
Discrimination Act, as amended by R.A. 7658;
and
5. Cases of domestic violence against:
a. Women involving acts of gender-based
violence that result, or likely to result in physical,
sexual or psychological harm or suffering to
women; and other forms of physical abuse such as
battering or threats and coercion which violate a
womans personhood, integrity and freedom of
movement;
b. Children which include the commission of all
forms of abuse, neglect, cruelty, exploitation,
violence and discrimination and all other
conditions prejudicial to their development (Sec. 5,
R.A. 8369)

METROPOLITAN TRIAL COURTS/MUNICIPAL TRIAL COURTS

Civil Cases Criminal Cases

Exclusive Original
1. Actions involving personal property where the value of
the property does not exceed P300,000 or, in Metro
Manila P400,000;
2. Actions for claim of money where the demand does not
exceed P300,000 or, in Metro Manila P400,000;
3. Probate proceedings, testate or intestate, where the
value of the estate does not exceed P300,000 or, in
Metro Manila P400,000;
Note: In the foregoing, claim must be exclusive of interest,
damages, attorneys fees, litigation expense, and costs (Sec. 33, 09-94, June 14, 1994); and
BP 129 as amended by R.A. 7691).
4. Actions involving title to or possession of real property
or any interest therein where the value or amount does
not exceed P20,000 or, in Metro Manila P50,000
exclusive of interest damages, attorneys fees, litigation
expense, and costs; (2008 Bar Question)
5. Maritime claims where the demand or claim does not
exceed P300,000 or, in Metro Manila P400,000 (Sec. 33,
BP 129 as amended by R.A. 7691);
6. Inclusion or exclusion of voters (Sec. 138, BP 881);
7. Those covered by the Rules on Summary Procedure:
a. Forcible entry and unlawful detainer;
b. Other civil cases except probate where the total
amount of the plaintiffs claims does not exceed
P100,000 or, in Metro Manila P200,000 exclusive
interest and costs (as amended by A.M. No. 02-11-09-
SC).
8. Those covered by the Rules on Small Claims, i.e. actions
1. All offenses punishable with imprisonment
not exceeding 6 years irrespective of the amount
of fine and regardless of other imposable
accessory or other penalties;
2. In offenses involving damage to property
through criminal negligence where the imposable
fine does not exceed P10,000 (Sec. 32, BP 129 as
amended by R.A. 7691);
3. Where the only penalty provided by law is a
fine not exceeding P4,000 (Admin. Circular No.
4. Those covered by the Rules on Summary
Procedure, i.e.
a. Violations of traffic laws, rules and
regulations;
b. Violations of the rental law;
c. Violations of municipal or city
ordinances;
d. Violations of BP 22 (A.M. No. 00-11-01-
SC);
e. All other criminal cases where the
penalty is imprisonment not exceeding 6
months and/or a fine of P 1,000 irrespective
of other penalties or civil liabilities arising
therefrom.
5. All offenses committed by public officers and
employees in relation to their office, including
government-owned or controlled corporations,
and by private individuals charged as co-

21 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

for payment of money where the claim does not exceed
P100,000 exclusive of interest and costs.
principals, accomplices or accessories, punishable
with imprisonment not more than 6 years or
where none of the accused holds a position
classified as Grade 27 and higher (Sec. 4, P.D.
1606 as amended by R.A. 8249).

Delegated
Cadastral or land registration cases covering lots where:
a. There is no controversy or opposition;
b. Contested but the value does not exceed P100,000
(Sec. 34, BP 129 as amended by R.A. 7691).

Note: The value shall be ascertained by the affidavit of the claimant

or agreement of the respective claimants (Sec. 34, BP 129 as
amended by R.A. 7691).
Special
Petition for habeas corpus in the absence of all RTC judges Application for bail in the absence of all RTC
in the province or city (Sec. 35, BP 129). judges in the province or city.
Concurrent
With RTC
Cases involving enforcement or violations of environmental
and other related laws, rules and regulations (Sec. 2, Rule 1,
A.M. No. 09-6-8-SC).

Q: A filed a complaint for sum of money against B in the

MTC of Manila, seeking for the award of P 300,000. B, the
defendant filed an answer with counterclaim alleging that
A is liable to him in the amount of P 500,000. Assume that
Judge C would hold A liable, how much can be awarded to
B by way of his counterclaim? Why?

A: The judge can award P 400,000 only, because that limit is

the courts jurisdiction. When B submitted his claim against
A, he voluntarily submitted the same to the jurisdiction of
MTC, and he is bound thereby. He is deemed to have
waived the excess of his claim beyond P 400,000. It is as if B
set up a counterclaim in the amount of P 400,000 (Albano
2007 p. 35 citing Agustin v. Bacalan 1985)

SHARIAH COURTS

Exclusive Original
1. All cases involving custody, guardianship, legitimacy, paternity and filiation arising under the Code of Muslim
Personal Laws;
2. All cases involving disposition, distribution and settlement of estate of deceased Muslims, probate of wills,
issuance of letters of administration or appointment of administrators or executors regardless of the nature
or aggregate value of the property;
3. Petitions for the declaration of absence and death for the cancellation or correction of entries in the Muslim
Registries mentioned in Title VI, Book Two of the Code of Muslim Personal Laws;
4. All actions arising from the customary contracts in which the parties are Muslims, if they have not specified
which law shall govern their relations; and
5. All petitions for mandamus, prohibition, injunction, certiorari, habeas corpus, and all other auxiliary writs
and processes in aid of its appellate jurisdiction.

UNIVERSITY OF SANTO TOMAS 22

2013 GOLDEN NOTES
 JURISDICTION

Concurrent
With all civil courts
1. Petitions by Muslim for the constitution of a family home, change of name and commitment of an insane
person to an asylum;
2. All other personal and legal actions not mentioned in paragraph 1 (d) wherein the parties involved are
Muslims except those for forcible entry and unlawful detainer, which shall fall under the exclusive
jurisdiction of the Municipal Circuit Court; and
3. All special civic actions for interpleader or declaratory relief wherein the parties are Muslims or the property
involved belongs exclusively to Muslims.

JURISDICTION OVER SMALL CLAIMS, CASES COVERED BY THE RULES ON SUMMARY PROCEDURE AND BARANGAY
CONCILIATION

Katarungang Pambarangay Law Rule on Small Claims Cases Rules on Summary Procedure

To effect an amicable settlement of
disputes among family and barangay
members at the barangay level
without judicial recourse and
consequently help relieve the courts of
docket congestion. (Preamble of P.D.
1508) (1999 Bar Qestion)
Purpose / Object
To provide a simpler and more
inexpensive and expeditious
means of settling disputes
involving purely money claims
than the regular civil process
To achieve an expeditious and
inexpensive determination of the
cases defined to be governed by
the Rules on Summary Procedure

Where to file
1. For disputes between residents of 1. Metropolitan Trial 1. Metropolitan Trial Courts
the same barangay: the dispute Courts 2. Municipal Trial Courts in Cities
must be brought for settlement in 2. Municipal Trial Courts in 3. Municipal Trial Courts
the said barangay. Cities 4. Municipal Circuit Trial Courts
2. For disputes between residents of 3. Municipal Trial Courts
different but adjoining barangays 4. Municipal Circuit Trial
and the parties agree to submit Courts
their differences to amicable
settlement: within the same city or
municipality where any of the
respondents reside at the election
of the complainant.
3. For disputes involving real
property or any interest when the
parties thereto agree to submit
their differences to amicable
settlement by an appropriate
lupon therein shall be brought in
the barangay where the real
property or larger portion thereof
is situated.
4. For disputes 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.
Cases Covered
Civil Cases
All disputes involving parties who Small claims cases civil claims 1. All cases of forcible entry and
actually reside in the same city or which are exclusively for the unlawful detainer irrespective
municipality may be the subject of the payment or reimbursement of a of the amount of damages or
proceedings for amicable settlement in sum of money not exceeding unpaid rentals sought to be
the barangay. P100,000 exclusive of interest recovered. Where attorneys
and costs, either fees are awarded, the same
1. Purely civil in nature where shall not exceed P20,000; and

23 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

When punishable by imprisonment of
not more than 1 year or fine of not
more than 5,000. (Sec. 408, LGC)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
REMEDIAL LAW
the claim or relief prayed for 2. All other civil cases, except
by the plaintiff is solely for probate proceedings, where the
payment or reimbursement total amount of plaintiffs claim
of sum of money, or does not exceed P100,000 or
2. The civil aspect of criminal does not exceed P200,000 in
actions, either filed before Metro Manila, exclusive of
the institution of the interests and costs (A.M. No.
criminal action, or reserved 02-11-09-SC, Nov. 25, 2005).
upon the filing of the
criminal action in court,
pursuant to Rule 111 of the
Revised Rules of Criminal
Procedure.
These claims or demands may be:
1. For money owed under any
of the following:
a. Contract of Lease
b. Contract of Loan
c. Contract of Services
d. Contract of Sale
e. Contract of Mortgage
2. For damages arising from
any of the following:
a. Fault or negligence
b. Quasi-contract
c. Contract
3. The enforcement of a
barangay amicable
settlement or an arbitration
award involving a money
claim covered by this Rule
pursuant to Sec. 417
Criminal Cases
None 1. Violations of traffic laws, rules
and regulations;
2. Violations of the rental law;
3. Violations of municipal or city
ordinances;
4. Violations of B.P. 22 or the
Bouncing Checks Law (A.M.
No. 00-11-01-SC, Apr. 15,
2003);
5. All other criminal cases where
the penalty is imprisonment
not exceeding 6 months
and/or a fine of P 1,000
irrespective of other penalties
or civil liabilities arising
therefrom; and
6. Offenses involving damage to
property through criminal
negligence where the
imposable fine is not
exceeding P10,000.
24
 CIVIL PROCEDURE

TOTALITY RULE

Q: What is the Aggregate or Totality Rule?

A: Where there are several claims or causes of actions

between the same or different parties embodied in one
complaint, the amount of the demand shall be the totality
of the claims in all causes of action irrespective of whether
the causes of action arose out of the same or different
transaction (Rule 2, Sec.5 [d]).

Note: Under the present law, the totality rule is applied also to
cases where two or more plaintiffs having separate causes of
action against a defendant join in a single complaint, as well as to
cases where a plaintiff has separate causes of action against two or
more defendants joined in a single complaint. However, the causes
of action in favor of the two or more plaintiffs or against the two or
more defendants should arise out of the same transaction or series
of transactions and there should be a common question of law or
fact, as provided in Section 6 of Rule 3 (permissive joinder of
parties).

The totality rule is not applicable if the claims are separate and
distinct from each other and did not arise from the same
transaction. In the case of Flores v. Mallare Philips, the Supreme
Court did not apply the totality test where there are two claims
filed by Flores first against Ignacio Binongcal and the second cause
of action was against Fernando Calion for allegedly refusing to pay
an amount representing cost of truck tires.

Q: If there is a complaint for a sum of money with

damages, will the amount of damages be added to the
sum of money to determine the court that has
jurisdiction? Explain

A: No, if the main action is for the recovery of sum of

money and the damages being claimed are merely the
consequences of the main cause of action, the same are not
included in determining the jurisdictional amount.
However, in cases where the claim for damages is the main
cause of action, or one of the causes of action, the amount
of such claim shall be considered in determining the
jurisdiction of the court (Albano 2007 p. 103-104 citing
Soliven v. Fastforms)

25 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

CIVIL PROCEDURE CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS

ACTIONS Q: Distinguish civil actions from special proceedings (1998

Bar Question)
MEANING OF ORDINARY CIVIL ACTIONS
A: A civil action is one by which a party sues another for the
It is one in which a party sues another for the enforcement enforcement or protection of a right, or the prevention or
or protection of a right or the prevention or redress of a redress of a wrong (Rule 1, Sec. 3 [a]), while a special
wrong. It is governed by ordinary rules (Bouviers Law proceeding is a remedy by which a party seeks to establish
th
Dictionary, Vol. I, p.128, 8 ed.: Words and Phrases, Vol. 2, a status, a right, or a particular fact (Rule 1, Sec. 3[c]).
p.25).
Action Special Proceeding
Q: What is the subject matter of an action? Purpose
Civil action: To establish a status, a
A: It is the physical facts, the thing, real or personal, the 1. To protect a right right or a particular fact
money, lands, chattels, and the like, in relation to which the 2. Prevent or redress (Sec. 3 Rule 1). Specific
suit is prosecuted (Iniego v. Purganan, G.R. No. 166876, a wrong. kinds of special
Mar. 24, 2006). proceedings are found in
Criminal action: rule 72 rule 109
Q: How is an action commenced? Prosecute a person for e.g. settlement of estate,
an act or omission escheat, guardianship, etc.
A: It is commenced by the filing of the original complaint in punishable by law (Sec. (Riano, Civil Procedure: A
court (Sec. 5, Rule 1). It can be instituted by filing the 3, Rule 1) Restatement for the Bar,
complaint by personal service or by registered mail (Sec. 3, p. 121, 2009 ed.)
Rule 13). Application
Where a party litigant Where his purpose is to
seeks to recover seek the appointment of a
Note: It is not simply the filing of the complaint or appropriate
initiatory pleading, but the payment of the prescribed docket fee
property from another, guardian for an insane
that vests a trial court with jurisdiction of the subject matter or his remedy is to file an person, his remedy is a
nature of the action (Hrs. of Hinog v. Melicor, G.R. No. 140954, Apr. action. special proceeding to
12, 2005). When an additional defendant is impleaded in a later establish the fact or status
pleading, the action is commenced with regard to him on the date of insanity calling for an
of the filing of such later pleading (Sec. 5, Rule 1). appointment of
guardianship (Herrera,
Q: In what instances are the Rules of Court not applicable? Vol. I, p. 370, 2007 ed.)
Governing Law
A: GR: It is not applicable in: Ordinary rules Requires the application
1. Election cases supplemented by of specific rules as
2. Land registration proceedings special rules provided for in the Rules
3. Cadastral proceedings of Court (Natcher v. Court
4. Naturalization proceedings of Appeals, et al., 418 Phil
5. Insolvency proceedings (Sec. 4, Rule 1) 669, 677, 2001).
Court
XPN: Heard by courts of
1. By analogy or in a suppletory character and; general jurisdiction Heard by courts of limited
2. Whenever practicable and convenient (Sec. 4, Rule 1)
jurisdiction (Ching v
Rodriguez, G.R. No.
MEANING OF SPECIAL CIVIL ACTIONS
192828)
It is one in which a party sues another for the enforcement Procedure
or protection of a right or the prevention or redress of a Initiated by a pleading Initiated by an application
wrong wherein it has special features not found in ordinary and parties respond and parties respond
civil actions. It is governed by ordinary rules but subject to through an answer through an opposition
specific rules prescribed Rules 62-71.
REAL ACTIONS AND PERSONAL ACTIONS
MEANING OF CRIMINAL ACTIONS
Real Action Personal Action
It is one by which the state prosecutes a person for an act Scope
or omission punishable by law (Sec. 3 [b], Rule 1). When it affects title to or Personal property is sought
possession of real property, to be recovered or
or an interest therein (Sec. enforcement of a contract
1, rule 4) or recovery of damage
(Riano, Civil Procedure: A

UNIVERSITY OF SANTO TOMAS 26

2013 GOLDEN NOTES
 CIVIL PROCEDURE

Restatement for the Bar,

p.125, 2009 ed.)

Basis
When it is founded upon Founded on privity of
the privity of a real estate. contract such as damages,
That means that realty or claims of money, etc. (Paper
interest therein is the Industries Corporation of
subject matter of the action. the Philippines v. Samson,
G.R. No. L-30175, Nov. 28,
Note: It is important that the 1975).
matter in litigation must also
involve any of the following
issue:
1. Title
2. Ownership
3. Possession
4. Partition
5. Foreclosure of mortgage
6. Any interest in real
property (Riano, Civil
Procedure: A Restatement
for the Bar, p.122, 2009
ed.)
Venue
Venue of action shall be Venue of action is the place
commenced and tried in the where the plaintiff or any of
proper court which has the principal plaintiffs
jurisdiction over the area resides or any of the
wherein the real property defendants resides, at the
involved, or a portion election of the plaintiff (Rule
thereof is situated (Rule 4, 2 sec 2)
sec 1)

Q: What is the significance of the distinction between a

personal and real action?

A: The distinction between a real action and a personal

action is important for the purpose of determining the
venue of the action. Questions involving the propriety or
impropriety of a particular venue are resolved by initially
determining the nature of the action, i.e., if the action is
personal or real (Riano, Civil Procedure: A Restatement for
the Bar, p.126, 2009 ed.).

LOCAL AND TRANSITORY ACTIONS

Local Action Transitory Action

Venue
Must be brought in a Dependent on the place
particular place where where the party resides
the subject property is regardless of where the
located, unless there is cause of action arose.
an agreement to the Subject to Sec. 4, Rule 4.
contrary (Sec. 4, Rule 4)
Privity of contract
No privity of contract Founded on privity of
and the action is contract between the
founded on privity of parties whether debt or
estate only (Riano, Civil covenant (Paper Industries
Procedure: A Corporation of the
Restatement for the Philippines v. Samson, G.R.
Bar, p.122, 2009 ed.) No. L-30175, Nov. 28, 1975).

27 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

ACTIONS IN REM, IN PERSONAM AND QUASI IN REM

Action In Rem Action In Personam Action Quasi In Rem

Nature
A proceeding to determine title, A proceeding to enforce A proceeding to subject the property of
status or condition of property personal rights and obligations the named defendant or his interests
within its borders. brought against the person therein to the obligation or lien
(Riano, Civil Procedure: A burdening the property (Riano, Civil
Restatement for the Bar, p.127, Procedure: A Restatement for the Bar,
2009 ed.). p.128, 2009 ed.).
Purpose
A proceeding to bar indifferently all To impose through the Deals with the status, ownership or
who might be minded to make any judgment of a court, some liability of a particular property but which
objection against the right sought responsibility or liability are intended to operate on these
to be enforced, hence the directly upon the person of the questions only as between the particular
judgment therein is binding defendant (Domagas v Jensen, parties to the proceedings and not to
theoretically upon the whole world 448 SCRA 663). ascertain or cut-off the rights or interests
(Regalado, Remedial Law of all possible claimants (Domagas vs.
Compendium 1, p. 23 2010 ed.). Jensen, 448 SCRA 663).
Scope
Directed against the thing itself Directed against particular Directed against particular persons with
instead of against the person persons (Domagas vs. Jensen, respect to the res.
((Riano, Civil Procedure: A 448 SCRA 663).
Restatement for the Bar, p.132,
2009 ed)
Required jurisdiction
Jurisdiction over the person of the Jurisdiction over the person of Jurisdiction over the person of the
defendant is not required the defendant is required (Biaco defendant is not required as long as
Jusrisdiction over the res is required v Philippine Countryside Rural jurisdiction over the res is acquired
through publication in a newspaper Bank, 515 SCRA 106). (Biaco v Philippine Countryside Rural
of general circulation. (Biaco v Bank, 515 SCRA 106).
Philippine Countryside Rural Bank,
515 SCRA 106).
Effect of judgment
Judgment is binding upon the whole Judgment is binding only upon Judgment will be binding only upon the
world (Regalado, Remedial Law parties impleaded or their litigants, privies, successor in interest
Compendium 1, p. 23 2010 ed.). successors-in-interest. but the judgment shall be executed
against a particular property. The RES
involve will answer the judgment.
Example
1. Probate proceeding 1. Action for specific 1. Action for partition
2. Cadastral proceeding (In re performance (Jose v Boyon, 2. Action for Accounting (Riano, Civil
Estate of Johnson, 39 Phil 156) 414 SCRA 217) Procedure: A Restatement for the
3. Land registration proceeding 2. Action for breach of Bar, p.128, 2009 ed citing Valmonte
(Republic v Herbieto, 459 SCRA contract v CA, 252 SCRA 92)
183) 3. Action for a sum of money;
for damages (Riano, Civil
Procedure: A Restatement
for the Bar,p.130, 2009 ed.)

Q: Why is there a need to make a distinction between

actions in personam, in rem and quasi in rem?

A: The distinction between actions in rem, in personam and

quasi in rem is important in determining the following:
1. Whether or not jurisdiction over the person of
the defendant is required; and
2. The type of summons to be employed (Gomez v.
CA, G.R. No. 127692, Mar. 10, 2004)

UNIVERSITY OF SANTO TOMAS 28

2013 GOLDEN NOTES
 CIVIL PROCEDURE

CAUSE OF ACTION Procedure: A Procedure: A Restatement

Restatement for the for the Bar , p. 4, 2009 ed.)
MEANING OF CAUSE OF ACTION Bar , p. 4, 2009 ed.)
Basis
Q: What is a cause of action? Based on the Basis is the plaintiffs cause
allegations of the of action. There is no right
A: It is the act or omission by which a party violates a right plaintiff in the of action where there is no
of another (Sec. 2, Rule 2). complaint cause of action. (Regalado,
Remedial Law Compendium
Q: What are the elements of a cause of action? 1, p. 4 2010 ed.)
Effect of Affirmative Defense
A: Not affected by May be taken away by
1. A right in favor of the plaintiff by whatever means and affirmative defenses running of Statute of
under whatever law it arises or is created; (fraud, prescription, limitation, by estoppel or
2. An obligation on the part of the named defendant to estoppels, etc.) other circumstances which
respect or not to violated such right; and do not at all affect the
3. Act or omission on the part of such defendant in cause of action (Regalado,
violation of the right of the plaintiff; or constituting a Remedial Law Compendium
breach of the obligation of the defendant to the plaintiff 1, p. 81 2010 ed)
for which the latter may maintain an action for recovery
of damages or other appropriate relief (Riano, Civil Note: The rule is there is no right of action where there is no
Procedure: A Restatement for the Bar, p.83, 2009 ed.). cause of action (Ibid. p.4)

Q: What is the cause of action in an administrative case? FAILURE TO STATE A CAUSE OF ACTION

A: In an administrative case, the issue is not whether the Q: What are the differences between failure to state cause
complainant has a cause of action against the respondent, of action and absence or lack of cause of action?
but whether the respondent has breached the norms and
standards of the office (Riano, Civil Procedure: A A:
Restatement for the Bar, p. 84, 2009 ed.). Failure to state cause of Lack of cause of action
action
CAUSE OF ACTION VERSUS RIGHT OF ACTION Insufficiency in the Failure to prove or
allegations of the establish by evidence
Cause of Action Right of Action complaint ones stated cause of
It is the act or Right of a plaintiff to bring action
omission by which a an action and to prosecute As a ground for dismissal
party violates the that action until final Raised in a motion to Raised in a demurrer to
rights of another (Sec. judgment (Marquez v. dismiss under Rule 16 evidence under Rule 33
2, Rule 2) Varela, 92 Phil. 373) before a responsive after the plaintiff has
Requisites pleading is filed rested his case (Enojas v
1. The existence of a 1. There must be a good Comelec, 283 SCRA 232)
legal right of the cause (existence of a Determination
plaintiff cause of action) Determined only from Resolved only on the
2. A correlative duty 2. A compliance with all the the allegations of the basis of the evidence he
of the defendant to conditions precedent to pleading and not from presented in support of
respect ones right the bringing of the action evidentiary matters his claim. (Riano, Civil
3. An act or omission 3. Right to bring and (Riano, Civil Procedure: Procedure: A
of the defendant in maintain the action must A Restatement for the Restatement for the
violation of the be in the person Bar, p.206, 2011 ed.) Bar, p207, 2011 ed.)
plaintiffs right. instituting it (Albano,
(Agrarian Reform Remedial Law Reviewer, Q: Does lack of cause of action affect the jurisdiction of a
Beneficiaries p. 80 2010 ed.) court?
Association v.
Nicolas, G.R. No. A: No, it does not affect the authority of a court to hear and
168394, October 6, decide a given case, if the court has jurisdiction over its
2008) subject matter, over the parties therein, and in an action in
Nature rem, over the res (Herrera, Vol. I, p. 448, 2007 ed.).
It is actually Right of action which is
predicated on procedural in character is
substantive law or on the consequence of the
quasi delicts under violation of the right of the
NCC (Riano, Civil plaintiff (Riano, Civil

29 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
TEST OF SUFFICIENCY OF CAUSE OF ACTION
Q: What is the test of sufficiency of the statement of a
cause of action?
A:
1. Whether or not admitting the facts alleged, the court
could render a valid verdict in accordance with the
prayer of the complaint (Misamis Occidental II Coop.,
Inc. vs. David, 468 SCRA 63);
2. The sufficiency of the statement of cause of action must
appear on the face of the complaint and its existence is
only determined by the allegations of the complaint
(Viewmaster Construction Corp. vs. Roxas, 335 SCRA
540);
Note: The truth or falsity of the allegations is beside the point
because the allegations in the complaint are hypothetically
admitted. Thus a motion to dismiss on the ground of failure to
state a cause of action, hypothetically admits the matters alleged in
the complaint.
SPLITTING A SINGLE CAUSE OF ACTION AND ITS EFFECTS
Q: What is splitting a cause of action? (1999 Bar Question)
A: It is the act of instituting two or more suits on the basis
of the same cause of action (Sec. 4, Rule 2). It is the act of
dividing a single or indivisible cause of action into several
parts or claims and bringing several actions thereon. The
rule against splitting of a cause of action aims to avoid
multiplicity of suits, conflicting decisions and unnecessary
vexation and harassment of defendants. It applies not only
to complaints but also to counterclaims and cross-claims.
Q: What is the effect of splitting a cause of action? (1998
Bar Question)
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).
Q: What are the remedies available against it? (1999 Bar
Question)
A: File a motion to dismiss, on the ground of litis pendentia
or if the first action has already been finally terminated, on
the ground of res judicata.
JOINDER AND MISJOINDER OF CAUSES OF ACTION
Q: What is a joinder of causes of action?
A: It is the assertion of as many causes of action a party
may have against another in one pleading alone (Sec. 5,
Rule 2).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What are the conditions required in joinder of causes of
action?
A:
1. The party shall comply with the rules on joinder of
parties;
a. Right to relief arises out of the same transaction
or series of transaction
b. There is common question of law of law or fact
2. The joinder shall not include special civil actions
governed by special rules;
3. Where causes of action pertain to different venues, the
joinder may be allowed in the RTC provided one of the
causes of action falls within the jurisdiction of said court
and venue lies therein
4. Where claims in all causes of action are for recovery of
money, the aggregate amount claimed shall be the test
for jurisdiction (Sec 5, Rule 2).
Note: A joinder of causes of action is only permissive not
compulsory, hence a party may desire to file a single suit for each
of his claims. (Bar 1999, Riano, Civil Procedure: A Restatement for
the Bar, p. 115, 2009 ed.)
Q: Is misjoinder of causes of action a ground for dismissal?
A: No. A misjoined cause of action may, on motion of a
party or on initiative of the court, be severed and
proceeded with separately (Sec. 6 Rule 2).
Q: P sued A and B in one complaint in the RTC-Manila, the
cause of action against A being an overdue promissory
note for P300,000 and that against B being an alleged
balance of P300,00 on the purchase of goods sold on
credit. Does the RTC-Manila have jurisdiction over the
case? (2002 Bar Question)
A: No, the RTC-Manila has no jurisdiction over the case. The
joinder of the causes of action against A and B is not
proper. For a joinder of causes of action against several
defendants to be proper, the joinder must comply with the
rules on joinder of the parties under Sec. 6 of Rule 3. This
rule requires that the causes of action joined shoud arise
out of the same transactions and there exists a question of
law or facts common to both. These requirements are not
met under the facts.
Since the causes of action cannot be joined, each action
must be the subject of a separate action. The totality rule
has no application under the facts of the case. The amount
of each claim falls within the jurisdiction of the MTC.
Q: Distinguish splitting of cause of action from joinder of
causes of action
A:
Splitting of Cause of Joinder of Causes of
Action Action
It is the practice of Assertion of as many
dividing one cause of causes of action as a
action into different party may have against
parts and making each another in one pleading
30
 CIVIL PROCEDURE

part the subject of a
separate complaint
(Bachrach v Icaringal,
68 SCRA 287)
Prohibited. A party may
not institute more than
1 suit for a single cause
of action (Sec 3, Rule 2,
Rules of Court)
It causes multiplicity of
suits and double
vexation on the part of
the defendant (Riano,
Civil Procedure: A
Restatement for the
Bar, p. 108, 2009 ed.)
Q: Distinguish joinder of causes of action from joinder of
parties (1996 Bar Question)
alone (Sec 5, Rule 2,
Rules of Court)
Encouraged (no
sanction against non-
joinder of separate
causes of action since a
plaintiff needs only a
single cause of action to
maintain an action)
It minimizes multiplicity
of suits and
inconvenience on the
parties.
b. A contract of partnership having a capital three
thousand pesos or more but which fails to comply
with the registration requirements is nevertheless
liable as a partnership to third persons (Art. 1772
in relation to Art. 1768, NCC);
c. Estate of a deceased person (Limjoco v. Intestate
Estate of Fragante, G.R. No. L-770, Apr. 27, 1948);
d. A legitimate labor organization may sue and be
sued in its registered name [Art. 242(e), Labor
Code of the Philippines];
e. The Roman Catholic Church may be a party and as
to its properties, the archbishop or diocese to
which they belong (Versoza v. Hernandez, G.R. No.
L-25264, Nov. 22, 1926);
f. A dissolved corporation may prosecute and defend
suits by or against it provided that the suits:
i. occur within three years after its dissolution;
and
ii. the suits are in connection with the settlement
and closure of its affairs. (Sec. 112, Corporation
Code)

A: Q: What are the differences between lack of legal capacity

Joinder of Cause of Joinder of Parties to sue and lack of legal personality to sue?
Action
It refers to the It may be employed when A:
procedural device there are various causes of Lack of Legal Capacity Lack of Legal
whereby a party who actions that accrue in to Sue Personality to Sue
asserts various claims favor of one or more It refers to plaintiffs The plaintiff is not the
against the same or plaintiffs against one or general disability to sue real party in interest
several parties, file more defendants i.e. there such as on account of (Columbia Pictures, Inc.
all his claims against is plurality of parties. minority, insanity, v. Court of Appeals, G.R.
them in a single incompetence, lack of No. 110318, August
complaint. juridical personality or 28,1996.)
It will not necessarily It may or may not be any other general
involve a joinder of involved in a joinder of disqualifications of a
parties. causes of actions (Riano, party
Civil Procedure: A Ground for a motion to Ground for motion to
Restatement for the Bar, p. dismiss for lack of legal dismiss for complaint
120, 2009 ed.). capacity to sue (Calano states no cause of
v. Cruz, 91 Phil. 247 action (Casimiro vs.
[1952]) Roque, et al., 98 Phil.
PARTIES TO CIVIL ACTIONS
880 [195]; Gonzales, et
al. vs. Alegarbes, 99
Q: Who may be parties to a civil action?
Phil. 213 [1956])
A:
Q: What are the rules with regard to the right of a foreign
1. Natural persons;
corporation to bring suit in Philippine courts?
2. Juridical persons
a. The State and its political subdivisions;
A:
b. Other corporations, institutions and entities for
1. If it does business in the Philippines with the required
public interest or purpose, created by law; and
license, it can sue before Philippine courts on any
c. Corporations, partnerships and associations for
transaction (Agilent Technologies v. Integrated Silicon,
private interest or purpose to which the law grants
G.R. No. 154618, Apr. 14, 2004)
a juridical personality, separate and distinct from
2. If it does business in the Philippines without a license, it
that of each shareholder, partner or member (Art.
cannot sue before the Philippine courts.
44, NCC).
3. If it is not doing business in the Philippines, it needs no
3. Entities authorized by law
license to sue before Philippine courts on an isolated
a. Corporation by estoppel is precluded from denying
transaction or on a cause of action entirely independent
its existence and the members thereof can be sued
of any business transaction.
and be held liable as general partners (Sec. 21,
4. If it is without license to do business and is not doing
Corporation Code);
business in the Philippines is not disqualified from filing
and prosecuting an action for unfair competition and

31 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
may be sued for acts done against a person or persons
in the Philippines, or may be sued in Philippine Courts.
5. If it does business in the Philippines without license, a
Philippine citizen or entity which has contracted with
said corporation may be estopped from challenging the
foreign corporations corporate personality in a suit
brought before Philippine courts (Herrera, Vol. I, p. 510,
2007 ed.).
Q: What is the rule on spouses as parties?
A: GR: Husband and wife shall sue and be sued jointly
inasmuch as both are co-administrators of the community
property under the system of absolute community of
property, as well as the conjugal partnership property
(Feria, Civil Procedure Annotated Vol. I, p. 231, 2001 ed.).
XPN:
1. A spouse without just cause abandons the other or
fails to comply with his or her obligations to the
family with respect to marital, parental or property
relations (Arts. 101&108, Family Code).
2. A spouse of age mortgages, encumbers, alienates or
otherwise disposes of his or her exclusive property
(Art. 111, FC).
3. The regime of separation of property governs the
property relations between spouses (Art. 145, FC).
4. Art. 135. Any of the following shall be considered
sufficient cause for judicial separation of property:
(a) That the spouse of the petitioner has been
sentenced to a penalty which carries with it civil
interdiction;
(b) That the spouse of the petitioner has been
judicially declared an absentee;
(c) That loss of parental authority of the spouse of
petitioner has been decreed by the court;
(d) That the spouse of the petitioner has abandoned
the latter or failed to comply with his or her
obligations to the family as provided for in Article
101;
(e) That the spouse granted the power of
administration in the marriage settlements has
abused that power; and
(f) That at the time of the petition, the spouses have
been separated in fact for at least one year and
reconciliation is highly improbable.
In the cases provided for in Numbers (1), (2) and (3),
the presentation of the final judgment against the
guilty or absent spouse shall be enough basis for
the grant of the decree of judicial separation of
property. (191a)
5. Art. 142. The administration of all classes of exclusive
property of either spouse may be transferred by the court
to the other spouse:
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
(a) When one spouse becomes the guardian of the
other;
(b) When one spouse is judicially declared an
absentee;
(c) When one spouse is sentenced to a penalty
which carries with it civil interdiction; or
(d) When one spouse becomes a fugitive from
justice or is in hiding as an accused in a criminal
case.
If the other spouse is not qualified by reason of
incompetence, conflict of interest, or any other
just cause, the court shall appoint a suitable
person to be the administrator.
REAL PARTIES IN INTEREST; INDISPENSABLE PARTIES;
REPRESENTATIVES AS PARTIES; NECESSARY PARTIES;
INDIGENT PARTIES; ALTERNATIVE DEFENDANTS
Q: What are the kinds of parties in a civil action?
A:
1. Real parties in interest
2. Indispensable parties
3. Representatives as parties
4. Necessary parties
5. Indigent parties
6. Pro-forma parties
Q: Who is a real party in interest?
A: He 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 (Sec. 2 Rule 3).
Note: To be a real party-in-interest, the interest must be real,
which is a present substantial interest as distinguished from a mere
expectancy or a future, contingent subordinate or consequential
interest (Rayo v. Metrobank, 539 SCRA 571). It is an interest that is
material and direct, as distinguished from a mere incidental
interest in the question (Samaniego v. Aguila, 334 SCRA 439).
Q: Who is an indispensable party?
A: Those without whom no final determination can be had
of an action (Sec. 7, Rule 3).
Q: What are the tests to determine whether a party is an
indispensable party?
A:
1. Can relief be afforded the plaintiff without the
presence of the other party?
2. Can the case be decided on its merits without
prejudicing the rights of the other party? (Republic v.
Sandiganbayan, G.R. No. 152154, July 15, 2003)
32
 CIVIL PROCEDURE

Q: Who is a necessary party? Q: Give the effects of non-joinder of a necessary party

(1998 Bar Question)
A: Those who are not indispensable but ought to be parties
if complete relief is to be accorded to those already parties A:
or for a complete determination or settlement of the claim 1. The court may order the inclusion of the omitted
subject of the action (Sec. 8, Rule 3). necessary party if jurisdiction over his person may be
obtained.
Q: Distinguish an indispensable party from a necessary 2. The failure to comply with the order for his inclusion,
party without justifiable cause, shall be deemed a waiver of
the claim against such party.
A: 3. The non-inclusion of a necessary party does not prevent
Indispensable Necessary Parties the court from proceeding in the action, and the
Parties judgment rendered therein shall be without prejudice
Parties in interest A necessary party is one to the rights of such necessary party.
without whom no who is not indispensable
final determination but who ought to be Q: May a party sue the defendants in the alternative?
can be had of an joined as a party if
action shall be joined complete relief is to be A: Yes. Where the plaintiff is uncertain against who of
either as plaintiffs or accorded as to those several persons he is entitled to relief, he may join any or all
defendants (Sec.7, already parties, or for a of them in the alternative, although a right to relief against
Rule 3). complete determination or one may be inconsistent with a right to relief against the
settlement of the claim other (Sec. 13, Rule 3).
Must be joined under subject of the action
any and all (Sec.8, Rule 3). Q: May an action be prosecuted in the name of another
conditions because party other than the real party in interest?
the court cannot Note: Should be joined
proceed without him whenever possible, however, A: No. Every action must be prosecuted and defended in
(Riano, Civil the action can proceed even the name of the real party-in-interest (Sec. 2, Rule 3). Even
in their absence because his where the action is allowed to be prosecuted or defended
Procedure: A
interest is separable from that by a representative party or someone acting in a fiduciary
Restatement for the of indispensable party (Ibid
Bar, p. 224, 2009 capacity, the beneficiary shall be included in the title of the
p.224).
ed.). case and shall be deemed to be a real party-in-interest
No valid judgment if The case may be (Sec.3 Rule 3; Riano, p. 219, 2009 ed.).
they are not joined. determined in court but
the judgment therein will Note: An agent acting in his own name and for the benefit of an
Note: In the absence of undisclosed principal may sue or be sued without joining the
not afford a complete
an indispensable party principal except when the contract involves things belonging to the
relief in favor of the principal.
renders all subsequent prevailing party
actions of the court null
and void for want of Q: What is the rule when the defendants name or identity
Note: Whenever in any
authority to act, not is unknown?
pleading in which a claim is
only as to the absent
asserted a necessary party is
parties but even as to A: He may be sued as the unknown owner, heir, devisee, or
not joined, the pleader shall
those present (Riano, by such other designation as the case may require.
set forth his name, if known,
Civil Procedure: A
and shall state why he is However, when his identity or true name is discovered, the
Restatement for the
omitted. Should the court find pleading must be amended accordingly. (Sec. 14, Rule 3)
Bar, p. 221, 2009 ed.).
the reason for the omission
unmeritorious, it may order Q: Who is an indigent party?
the inclusion of the omitted
necessary party if jurisdiction
over his person may be A: They are those (a) whose gross income and that of their
obtained. The failure to immediate family do not exceed an amount double the
comply with the order for his monthly minimum wage of an employee and (b) who do
inclusion, without justifiable not own real property with A FAIR MARKET VALUE AS
cause, shall be deemed a STATED IN THE CURRENT TAX DECLARATION of more than
waiver of the claim against THREE hundred thousand (P300,000.00) pesos shall be
such party. exempt from the payment of legal fees. (Rule 141, Sec. 19
The non-joinder of an indispensable or a necessary as amended by A.M. No. 04-2-04-SC)
party is not by itself ipso facto a ground for the
dismissal of the action. The court should order the He is one who has no money or property sufficient and
joinder of such party and non-compliance with the available for food, shelter and basic necessities for himself
said order would be a ground for the dismissal of and his family. (Sec. 21 Rule 3)
the action (Feria, Civil Procedure Annotated, Vol. I,
p. 239, 2001 ed.).

33 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What is the rule on indigent litigants?
A: If the applicant for exemption meets the salary and
property requirements under Sec. 19, Rule 141, then the
grant of the application is mandatory. However, if the trial
court finds that one or both requirements have not been
met, then it would set a hearing to enable the applicant to
prove that the applicant has no money or property
sufficient and available for food, shelter and basic
necessities for himself and his family as provided in Rule 3,
Sec. 21. In that hearing, the adverse party may adduce
countervailing evidence to disprove the evidence presented
by the applicant; after which the trial court will rule on the
application depending on the evidence adduced. In
addition, Section 21 of Rule 3 also provides that the adverse
party may later still contest the grant of such authority at
any time before judgment is rendered by the trial court,
possibly based on newly discovered evidence not obtained
at the time the application was heard (Algura v. LGU of
Naga, G.R. No. 150135, Oct. 30, 2006).
Q: What does the authority include, if one is authorized as
an indigent party?
A: An exemption from the payment of:
1. Docket fees and other lawful fees
2. Transcript of stenographic notes (Sec. 21, Rule 3).
Note: The amount of the docket and other lawful fees which the
indigent was exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless otherwise
provided (Sec. 21, Rule 3).
Q: Who is a pro forma party?
A: 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 (Samaniego vs. Agulia,
G.R. No. 125567, June 27, 2000).
COMPULSORY AND PERMISSIVE JOINDER OF PARTIES
Q: When is there a compulsory joinder of parties?
A: The joinder of parties becomes compulsory when the
one involved is an indispensable party. Clearly, the rule
directs a compulsory joinder of indispensable parties.
(Riano, Civil Procedure: A Restatement for the Bar, p. 222,
2009 ed)
Note: The presence of all indispendable parties is a condition sine
qua non for the exercise of judicial power. It is precisely when an
indispensable party is not before the court that the action should
be dismissed. Thus, the plaintiff is mandated to implead all the
indispensable parties, considering that the absence of one such
party renders all subsequent action of the court null and void for
want of authority to act, not only as to the absent parties but even
as to those present. One who is a party to a case is not bound by
any decision of the court; otherwise, he will be deprived of his right
to due process (Sepulveda, Sr. v. Pelaez, 450 SCRA 302).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What are the requisites of permissive joinder of
parties?
A:
1. Right to relief arises out of the same transaction or
series of transactions (connected with the same subject
matter of the suit);
2. There is a question of law or fact common to all the
plaintiffs or defendants;
Note: There is a question of law in a given case when the doubt or
difference arises as to what the law is on a certain state of facts;
there is a question of fact when doubt arises as to the truth or the
falsehood of alleged facts. (Manila Bay Club Corp. v. CA, et al., G.R.
No. 110015)
Q: When may the court order the joinder of a necessary
party? (1998 Bar Question)
A: If the reason given for the non-joinder of the necessary
party is found by the court to be unmeritorious, it may
order the pleader to join the omitted party if jurisdiction
over his person may be obtained. The failure to comply
with the order of the court to include a necessary party,
without justifiable cause, shall be deemed a waiver of the
claim against such party (Sec. 9, Rule 3).
MISJOINDER AND NON-JOINDER OF PARTIES
Q: Is the misjoinder or non-joinder of an indispensable
party a ground for the dismissal of the action or
annulment of judgment?
A: No. The Rules prohibit the dismissal of a suit on the
ground of non-joinder or misjoinder of parties and allows
the amendment of the complaint at any stage of the
proceedings, through motion or on order of the court on its
own initiative (Sec. 11, Rule 3; Republic v. Sandiganbayan,
G.R. No. 152154, July 15, 2003). However, when the order
of the court to implead an indispendable party goes
unheeded, the court may order the dismissal of the case.
The court is fully clothed with the authority to dismiss a
complaint due to the fault of the plaintiff as when, among
others, he does not comply with the order of the court (Sec.
3, Rule 17; Plasabas vs. CA, GR No. 166519; Riano, Civil
Procedure: A Restatement for the Bar p. 223, 2009 ed.).
CLASS SUIT
Q: What is a class suit?
A: It is an action where one or some of the parties may sue
for the benefit of all if the requisites for said action are
complied with. (Riano, Civil Procedure: A Restatement for
the Bar, p. 236, 2009 ed)
Q: What are its requisites?
A:
1. Subject matter of the controversy is one of common or
general interest to many persons;
2. Parties affected are so numerous that it is
impracticable to bring them all before the court;
34
 CIVIL PROCEDURE
3. Parties bringing the class suit are sufficiently numerous
or representative of the class and can fully protect the
interests of all concerned (Sec. 12 Rule 3); and
4. Representatives sue or defend for the benefit of all
(Sec.12, Rule 3)
Q: On January 4, 1988, a complaint for damages
amounting to more than One and a half billion pesos
(P1.4Billion) was filed in the name and on behalf of the
relatives or heirs of the victims of the worst sea disaster in
history, the sinking of the vessel Dona Pas caused by its
collision with another vessel. The complaint characterized
the action as a class suit, prosecuted by 27 named
plaintiffs on their behalf and in representation of the
approximately 4,000 persons who are all close relatives
and legal heirs of the passenger of the Dona Paz. Is this a
proper class suit?
A: This is not a proper class suit because the interest of
each of the plaintiffs is limited to the damages being
claimed by him.
Note: Even if the parties are numerous, there must be a
community of interest for a class suit because the subject matter of
the controversy must be of common interest among all of them. If
the class suit is not proper, the remedy of the parties is either to
bring suit individually or join them all as parties under the rule on
permissive joinder of parties.
SUITS AGAINST ENTITIES WITHOUT JURIDICAL
PERSONALITY
Q: What is the rule on suits against entities without
juridical personality?
A: When two or more persons not organized as an entity
with juridical personality enter into a transaction, they may
be sued under the name by which they are generally or
commonly known. In the answer of such defendant, the
names and addresses of the persons composing said entity
must all be revealed (Sec. 15, Rule 3).
Note: Persons associated in an entity without juridical personality,
however, cannot sue under such name.
EFFECT OF DEATH OF PARTY LITIGANT
Q: What is the effect of the death of a party upon a
pending action? (1999 Bar Question)
A:
1. Purely personal action the death of either of the
parties extinguishes the claim and the action is
dismissed.
2. Action that is not purely personal claim is not
extinguished and the party should be substituted by his
heirs, executor or administrator. In case of minor heirs,
the court may appoint a guardian ad litem for them.
3. Action for recovery of money arising from contract and
the defendant dies before entry of final judgment it
shall not be dismissed but instead shall be allowed to
continue until entry of judgment. A favorable judgment
obtained by the plaintiff shall be enforced in the
manner provided in the rules for prosecuting claims
35
against the estate of a deceased person (Sec. 20, Rule
3).
Note: The substitute defendant need not be summoned. The order
of substitution shall be served upon the parties substituted for the
court to acquire jurisdiction over the substitute party (Riano, Civil
Procedure: A Restatement for the Bar, p. 232, 2009 ed.). If there is
notice of death, the court should await appointment of legal
representative; otherwise, subsequent proceedings are void.
Q: What is the purpose and importance of substitution of
the deceased?
A: The purpose behind the rule on substitution of parties is
the protection of the right of every party to due process. It
is to ensure that the deceased would continue to be
properly represented in the suit through the duly appointed
legal representative of the estate (Torres v. Court of
Appeals, 278 SCRA 793; Vda. De Salazar v. Court of Appeals,
250 SCRA 305)
Q: What is the effect of non-compliance with the rules on
substitution?
A: GR: It renders the proceedings of the trial court infirm
because the court acquired no jurisdiction over the person
of the legal representative (Brioso v. Rili-Mariano, G.R. No.
132765, Jan. 31, 2003). Non-compliance therewith results
in the undeniable violation of the right to due process of
those who, though not duly notified of the proceedings, are
substantially affected by the decision rendered therein
(Vda. De Salazar v. CA, G.R. No. 121510, Nov. 23, 1995).
XPN:
1. Even if there is non-compliance with the rules on
substitution but the heirs themselves voluntarily
appeared, participated in the case and presented
evidence in defense of deceased defendant, the
action does not deprive the court of jurisdiction
(Vda. De Salazar v. CA, G.R. No. 121510, Nov. 23,
1995).
2. In ejectment cases where the counsel fails to inform
the court of the death of his client and thereby
results to the non-substitution of the deceased by
his legal representatives, the action does not
deprive the court of jurisdiction. The decision of the
court is nevertheless binding upon the successors-
in-interest of the deceased. A judgment in an
ejectment case may be enforced not only against
defendants but also against the members of their
family, their relatives, or privies who derived their
right of possession from the deceased defendant
(Vda. De Salazar v. CA, G.R. No. 121510, Nov. 23,
1995 citing Florendo Jr. v. Coloma, G.R. No. L-60544,
May 19, 1984).
Q: What actions survive the death of a party? (2000 Bar
Question)
A:
1. Actions and obligations arising from delicts (Aguas v.
Llemos, G.R. No. L-18107, Aug. 30, 1962);
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

2. Ejectment case (Tanhueco v. Aguilar, G.R. No. L-30369, Q: Can a complaint be dismissed by the court motu
May 29, 1970); proprio based on improper venue?
3. Actions for the recovery of money, arising from a
contract, express or implied (Sec. 20, Rule 3); A: No. Improper venue is not one of the grounds wherein
4. Actions to recover real and personal property against the court may dismiss an action motu proprio (Universal
the estate; Corp. vs. Lim, G.R. No. 154338, Oct. 5, 2007). Unless and
5. Actions to enforce liens thereon; and until the defendant objects to the venue in a motion to
6. Actions to recover damages for an injury to person or dismiss, the venue cannot be truly said to be improperly
property and suits by reason of the alleged tortuous laid, because the venue although technically wrong may be
acts of the defendant (Board of Liquidators v. Kalaw, acceptable to the parties for whose convenience the rules
G.R. No. L-18805, Aug. 14, 1967). on venue have been devised (Dacuycuy vs. Intermediate
Appellate Court, 195 SCRA 641).
VENUE
Note: An order denying a motion to dismiss is merely interlocutory.
VENUE VERSUS JURISDICTION The normal remedy is to file an answer and interpose the ground
as an affirmative defense, go to trial and appeal from the adverse
judgment. However, if the denial is tainted with grave abuse of
Q: Distinguish venue from jurisdiction. (2006 Bar
discretion amounting to lack of jurisdiction, the remedy is certiorari
Examination) and prohibition. (Emergency Loan Pawnshop v. Court of Appeals,
353 SCRA 89)
A:
Venue Jurisdiction VENUE OF REAL ACTIONS
The place, or Power of the court to
geographical area where hear and decide a case The venue is local, hence the venue is the place where the
an action is to be filed real property involved or, any portion thereof, is situated.
and tried (Manila (Sec. 1, Rule 4)
Railroad Company v
Attorney General, 20 Phil VENUE OF PERSONAL ACTIONS
523).
May be waived by: Cannot be waived The venue is transitory; hence the venue is the residence of
1. Failure to object the plaintiff or defendant, at the option of the plaintiff.
through a motion to (Sec. 2, Rule 4)
dismiss or through an
affirmative defense. Q: A, a resident of Lingayen, Pangasinan ssued X, a
2. Stipulation of the resident of San Fernando, La Union in the Regional Trial
parties. Court of Quezon City for the collection of a debt of P1
Procedural Substantive million.
May be changed by the Cannot be the subject of X did not file a motion to dismiss for improper venue but
written agreement of the the agreement of the filed his answer raising therein improper venue as an
parties parties affirmative defense. He also filed a counterclaim for P80,
Establishes a relation Establishes a relation 000.00 against A for attorneys fees and expenses for
between plaintiff and between the court and litigation. X moved for a preliminary hearing on said
defendant, or petitioner the subject matter. affirmative defense. For his part, A filed a motion to
and respondent. dismiss the counterclaim for lack of jurisdiction. Rule on
GR: Not a ground for a It is a ground for a motu the affirmative defense of improper venue. (1998 Bar
motu proprio dismissal proprio dismissal (Riano, Question)
Civil Procedure: A
XPN: In cases subject to Restatement for the Bar, A: There is improper venue. The case is for a sum of money
summary procedure p. 210, 2009 ed.). is a personal action. It must be filed in the residence of
(Riano, Civil Procedure: A either the plaintiff, which is in Pangasinan, or of the
Restatement for the Bar, defendant, which is in San Fernando, La Union. (Sec. 2, Rule
p. 210, 2009 ed.). 4).

Note: In civil cases, venue is not a matter of jurisdiction. (Hrs. of VENUE OF ACTIONS AGAINST NON-RESIDENTS
Lopez v. de Castro, 324 SCRA 591, 2000) Venue becomes
jurisdictional only in a criminal case. In the latter case, where the Q: Where should the action be commenced and tried if
information is filed not in the place where the offense was the defendant is a non-resident?
committed, the information may be quashed for lack of jurisdiction
over the offense charged (Sec 3 Rule 117, Rules of Court).
A:
1. Defendant does not reside but is found in the
Philippines:
a. Personal actions shall be commenced and tried in
the court of the place where the plaintiff resides

UNIVERSITY OF SANTO TOMAS 36

2013 GOLDEN NOTES
 CIVIL PROCEDURE

b. Real actions shall be commenced and tried in the (b) Suppose the parties did not stipulate in the loan
court of the place where the property is located agreement as to the venue, where A can file his
(Riano, Civil Procedure: A Restatement for the Bar, complaint against X?
p.203, 2009 ed.).
(c) Suppose the parties stipulated in their loan
2. Defendant does not reside and is not found in the agreement that venue for all suits arising from this
Philippines: contract shall be the courts in Quezon City, can A file
a. If the action affects the personal status of the his complaint against X in Pasay City? (1997 Bar
plaintiff the action may be commenced and tried Question)
in the court of the place where the plaintiff resides.
b. If it involves any property of the non-resident A:
defendant the action may be commenced and (a) Yes, because the stipulation in the loan agreement
tried where the property or any portion thereof is that the parties agree to sue and be sued in the City
situated (Sec. 3, Rule 4). of Manila does not make Manila the exclusive venue
thereof. (Sec. 4, Rule 4) Hence, A can file his
WHEN THE RULES ON VENUE DO NOT APPLY complaint in Angeles City where he resides. (Sec. 2,
Rule 4).
Q: In what instances does the rule on venue of action
inapplicable? (b) If the parties did not stipulate on the venue, A can file
his complaint either in Angeles City where he resides
A: or in Pasay City where X resides.
1. In cases where a specific rule or law provides
otherwise (e.g. an action for damages arising from (c) Yes, because the wording of the stipulation does not
libel). make Quezon City the exclusive venue
2. Where the parties have validly agreed in writing
before the filing of the action on the exclusive venue PLEADINGS
(Sec. 4, Rule 4).
Pleadings are the written statements of the respective
EFFECTS OF STIPULATIONS ON VENUE claims and defenses of the parties submitted to the court
for appropriate judgment (Sec.1, Rule 6).
Q: What is the rule on the stipulations on venue?
KINDS OF PLEADINGS
A: The parties may agree on a specific venue which could
be in a place where neither of them resides (Universal Q: What pleadings are allowed by the rules? (1996 Bar
Robina Corp. vs. Lim, 535 SCRA 95). The parties may Examination)
stipulate on the venue as long as the agreement is in
writing, made before the filing of the action, and exclusive A:
as to the venue. (Sec.4[b], Rule 4) 1. Complaint
2. Answer
Note: A stipulation on venue is void and unenforceable when it is
3. Counterclaim
contrary to public policy. (Sweet Lines v. Teves, G.R. No. 28324,
Nov. 19, 1978)
4. Cross-claim
5. Reply
Q: What makes a stipulation on venue exclusive? 6. Third party (fourth-party etc.) complaint (Sec 2, Rule 6)

A: Venue is exclusive when the stipulation clearly indicates, COMPLAINT

through qualifying and restrictive words that the parties
deliberately exclude causes of actions from the operation It is a concise statement of the ultimate facts constituting
of the ordinary permissive rules on venue and that they the plaintiffs cause or causes of action, with a specification
intended contractually to designate a specific venue to the of the relief sought, but it may add a general prayer for
exclusion of any other court also competent and accessible such further relief as may be deemed just or equitable.
to the parties under the ordinary rules on venue of actions.
Note: The names and residences of the plaintiff and defendant, if
(Philippine Banking Corp. v. Tensuan, G.R. No. 106920, Dec.
known, must be stated (Sec. 3, Rule 6).
10, 1993)
ANSWER
Q: X, a resident of Angeles City borrowed P300, 000.00
from A, a resident of Pasay City. In the loan agreement,
It is the pleading where the defendant sets forth his
the parties stipulated that the parties agree to sue and
affirmative or negative defenses (Sec. 4 Rule 6). It may
be sued in the City of Manila.
likewise be the response to a counterclaim or a cross-claim.
It may be an answer to the complaint, an answer to a
(a) In case of non-payment of the loan, can A file his
counter-claim, or an answer to a cross-claim. (Riano, Civil
complaint to collect the loan from X in Angeles City?
Procedure: A Restatement for the Bar, p. 323, 2009 ed)

37 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
DEFENSES
Q: What are the two kinds of defenses that may be set
forth in the answer?
A:
1. Negative defenses specific denial of the material facts
or facts alleged in the pleading essential to establish the
plaintiffs cause of action (Sec. 5, Rule 6).
2. Affirmative defenses allegation of a new matter which
while hypothetically admitting the material allegations
in the pleading would nevertheless prevent or bar
recovery by the claiming party. It is in the nature of
confession and avoidance
Q: What are insufficient denials or denials amounting to
an admission?
A:
1. General denial
2. Denial in the form of a negative pregnant (Riano, Civil
Procedure: A Restatement for the Bar, p.327, 2009 ed.)
NEGATIVE DEFENSES
Q: What are the forms of denials amounting to a negative
defense?
A:
1. Absolute denial -The defendant specifies each material
allegation of fact the truth of which he does not admit and,
whenever practicable, sets forth the substance of the
matters upon which he relies to support his denial.
2. Partial denial the defendant does not make a total
denial of the material allegations in a specific paragraph.
3. Denial by disavowal of knowledge the defendant
alleges that he is without knowledge or information
sufficient to form a belief as to the truth of a material
averment made in the complaint.
Note: If such matters are plainly and necessarily within the
defendants knowledge, a claim of ignorance of information will
not be considered a specific denial.(Aquintey v. Tibong, 515 SCRA
414, 433)
Q: What are the instances where a specific denial must be
made under oath?
A:
1. a denial of an actionable document (Sec. 8, Rule 8,
Rules of Court);
2. a denial of allegation of usury in a complaint to recover
usurious interest (Sec. 11, Rule 8, Rules of Court)
Note: Whenever an action or defense is based or founded upon a
written instrument or document, said instrument or document is
deemed an actionable document.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
NEGATIVE PREGNANT
Q: What is negative pregnant?
A: It is a form of denial which, at the same time, involves an
affirmative implication favorable to the opposing party. It is
in effect an admission of the averment to which it is
directed. It is said to be a denial pregnant with an
admission of the substantial facts in the pleading
responded to (Regalado, Remedial Law Compendium, Vol. I,
p. 177, 2005 ed.). A denial in the form of a negative
pregnant is an ambiguous pleading, since it cannot be
ascertained whether it is the fact, or only the qualification
that is intended to be denied. (Galofa v. Nee Bon Sing, G.R.
No. L-22018, Jan. 17, 1968)
Example: An assertion of a defendant which questions the
amount of money involved in a bank account but does not
deny its existence, when such is the issue in the case, is said
to have admitted the existence of such bank account. The
denial of the amount of money deposited is pregnant with
an admission of the existence of the bank account.(Republic
of the Philippines v. Sandiganbayan, G.R. No. 152154, July
15, 2003)
AFIRMATIVE DEFENSES
Q: What are affirmative defenses that may be raised by a
party?
A:
1. Fraud
2. Statute of limitations
3. Release
4. Payment
5. Illegality
6. Statute of frauds
7. Estoppel
8. Former recovery
9. Discharge in bankruptcy
10. Any other matter by way of confession and avoidance
(Pesane Animas Mongao v. Pryce Properties Corpo., 467
SCRA 201, 214)
COUNTERCLAIMS
COMPULSORY COUNTERCLAIM;PERMISSIVE
COUNTERCLAIM
Q: What is a counterclaim? (1999 Bar Examination)
A: It is any claim which a defending party may have against
an opposing party (Sec. 6, Rule 6). It partakes of a complaint
by the defendant against the plaintiff (Pro-Line Sports Inc.,
v. CA, G.R. No. 118192, Oct. 23, 1997).
38
 CIVIL PROCEDURE

Q: What are the two kinds of counterclaims? How are they venue but filed his answer raising therein improper venue
different? (2007 Bar Question). as an affirmative defense. He also filed a counterclaim for
P80, 000.00 against A for attorneys fees and expenses for
A: litigation. X moved for a preliminary hearing on said
Compulsory Permissive Counterclaim affirmative defense. For his part, A filed a motion to
Counterclaim dismiss the counterclaim for lack of jurisdiction. Rule on
One which arises out It does not arise out of the motion to dismiss the counterclaim on the ground of
of or is necessarily nor is it necessarily lack of jurisdiction over the subject matter. (1998 Bar
connected with the connected with the Question).
transaction or subject matter of the
occurrence that is the opposing partys claim A: The motion to dismiss on the ground of lack of
subject matter of the jurisdiction over the subject matter should be denied. The
opposing partys claim counterclaim for attorneys fees and expenses of litigation
(Sec.7, Rule 6) is a compulsory counterclaim because it necessarily arose
It does not require It may require for its out of and is connected with the complaint. In an original
for its adjudication adjudication the action before the Regional Trial Court, the counterclaim
the presence of presence of third parties may be considered compulsory regardless of the amount.
third parties of over whom the court (Sec. 7 of Rule 6).
whom the court cannot acquire
cannot acquire jurisdiction EFFECT ON THE COUNTERCLAIM WHEN THE COMPLAINT IS
jurisdiction DISMISSED
Barred if not set up Not barred even if not
in the action (Sec. 2, set up in the action Q: What is the effect of the dismissal of a complaint on the
Rule 9) counterclaim?
Need not be Must be answered,:
answered; No Otherwise, default A:
default 1. If no motion to dismiss has been filed, any of the
Not an initiatory Initiatory pleading grounds for dismissal under Rule 16 may be pleaded as
pleading. an affirmative defense in the answer, and in the
Need not be Must be discretion of the court, a preliminary hearing may be
accompanied by a accompanied by a had thereon as if a motion to dismiss has been filed
certification against certification against (Sec. 6, Rule 16). After hearing, when the complaint is
forum shopping and forum shopping and dismissed, the counterclaim, compulsory or permissive
certificate to file whenever required by is not dismissed.
action by the law, also a certificate 2. When the plaintiff himself files a motion to dismiss his
Lupong to file action by the complaint after the defendant has pleaded his answer
Tagapamayapa. Lupong with a counterclaim. If the court grants the motion, the
Tagapamayapa dismissal shall be limited to the complaint. It shall be
(Santo Tomas without prejudice to the right of the defendant to
University v. Surla, prosecute his counterclaim in a separate action unless
G.R. No. 129718, Aug. within 15 days from notice of the motion, manifests his
17, 1998) preference to have his counterclaim resolved in the
The court has Must be within the same action (Sec. 2, Rule 17).
jurisdiction to jurisdiction of the 3. When the complaint is dismissed through the fault of
entertain both as court where the case the plaintiff and at a time when a counterclaim has
to the amount and is pending and already been set up, the dismissal is without prejudice
nature (Sec. 7, Rule cognizable by regular to the right of the defendant to prosecute his
6; Ibid p.331) courts of justice counterclaim in the same or separate action (Sec. 3,
otherwise, defendant Rule 17; Riano, Civil Procedure: A Restatement for the
will have to file it in Bar, p. 340, 2009 ed.).
separate proceeding
which requires Q: Fe filed a suit for collection of P387,000 against Ramon
payment of docket in the RTC of Davao City. Aside from alleging payment as a
fee defense, Ramon, in his answer, set up counterclaims for
P100,000 as damages and P30,000 as attorney's fees as a
Note: In an original action before the RTC, the counterclaim may result of the baseless filing of the complaint, as well as for
be considered compulsory regardless of the amount (Sec. 7, Rule P250,000 as the balance of the purchase price of the 30
6). units of air conditioners he sold to Fe. Suppose that
instead of alleging payment as a defense in his answer,
Q: A, a resident of Lingayen, Pangasinan sued X, a Ramon filed a motion to dismiss on that ground, at the
resident of San Fernando, La Union in the Regional Trial same time setting up his counterclaims, and the court
Court of Quezon City for the collection of a debt of P1 grants his motion. What will happen to his counterclaims?
million. X did not file a motion to dismiss for improper (2008 Bar Question)

39 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Since Ramon filed only a motion to dismiss, not an
answer, the dismissal of the complaint would also bring
about the dismissal of his counterclaims but he can file a
separate action for his permissive counterclaims. The
compulsory counterclaims are deemed waived when he
filed a motion to dismiss the complaint instead of
answering the same (Financial Building Corp. v. Forbes Park
Association, Inc., G.R. No. 133119, Aug. 17, 2000).
CROSS-CLAIMS
Q: What are the requirements for a cross-claim?
A:
1. A claim by one party against a co-party;
2. It must arise out of the subject matter of the complaint
or of the counterclaim; and
3. The cross-claimant is prejudiced by the claim against
him by the opposing party (Sec. 8, Rule 6).
Q: What is the effect if a cross-claim was not set up?
A: GR: Barred if not set up (Sec.2, Rule 9).
XPN: If it is not asserted due to oversight, inadvertence, or
excusable negligence, it may still be set up with leave of
court by amendment of the pleadings (Sec.10, Rule 11).
Q: Distinguish a counterclaim from a cross claim. (1999 Bar
Examination)
A: A counterclaim is a claim against an opposing party while
a cross claim is against a co-party (Sec. 8, Rule 6).
Q: A assembles an owner-type jeep for B who in turn rents
it to X. Due to faulty brakes, X figures in a vehicular
accident causing him severe injuries. X files an action for
damages against A and B. May B file a third-party
complaint against A for indemnity? Explain. (1996 Bar
Question)
A: No, because what B should file is a cross-claim against
his co-defendant A.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS
Q: What is a third (fourth, etc.) party complaint?
A: 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).
Note: Leave of court is necessary in third (fourth, etc.) party
complaint in order to obviate delay in the resolution of the
complaint, such as when the third-party defendant cannot be
located, or when unnecessary issues may be introduced, or when a
new and separate controversy is introduced. (Herrera, Vol. I, p.
705, 2007 ed)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: Distinguish a third-party complaint from the rules on
bringing in new parties.
A:
Third-party complaint Rules on bringing in new
parties
It is proper when not If one or more of the
one of the third-party defendants in a
defendants therein is counterclaim or
a party to the main cross-claim is already
action (Riano, Civil a party to the action,
Procedure: A then the other
Restatement for the necessary parties
Bar, p.15, 2009 ed.). may be brought in
under the rules on
bringing in new
parties.
Q: What are the tests to determine whether the third-
party complaint is in respect of plaintiffs claim?
A:
1. Whether it arises out of the same transaction on which
the plaintiffs claim is based, or, although arising out of
another or different transaction, is connected with the
plaintiffs claim;
2. Whether the third-party defendant would be liable to the
plaintiff or to the defendant for all or part of the
plaintiffs claim against the original defendant; and
3. Whether the third-party defendant may assert any
defenses which the third-party plaintiff has or may have
to the plaintiffs claim. (Capayas v. CFI of Albay 77 Phil
181).
Note: Where the trial court has jurisdiction over the main case, it
also has jurisdiction over the third party complaint, regardless of
the amount involved as a third-party complaint is merely auxiliary
to and is a continuation of the main action. (Republic v. Central
Surety & Insurance Co., G.R. No. L-27802, Oct. 26, 1968)
Q: Abby obtained a favorable judgment against UNICAP
for a sum of money. For failure to get full payment, Abby
went after UNICAPs debtor, Ben. Ben is a policy holder of
Insular. The courts sheriff then served a notice of
garnishment to Insular over several account receivables
due to Ben. Insular refused to comply with the order
alleging adverse claims over the garnished amounts. The
trial court ordered Insular to release to Abby the said
account receivables of Ben under the policies. Insular then
filed a petition for certiorari with the CA alleging that the
trial judge gravely abused his discretion when he issued
the garnishment order despite its adverse claim on the
garnished amounts. The CA gave due course to the
petition and annulled the order of the trial court. Is the
Court of Appeals correct?
A: No. Neither an appeal nor a petition for certiorari is the
proper remedy from the denial of a third-party claim. Since
the third-party claimant is not one of the parties to the
action, he could not, strictly speaking, appeal from the
order denying its claim, but should file a separate
reinvindicatory action against the execution creditor or a
complaint for damages against the bond filed by the
40
 CIVIL PROCEDURE

judgment creditor in favor of the sheriff. The rights of a 3. Counterclaim

third-party claimant should be decided in a separate action a. Compulsory counterclaim:
to be instituted by the third person. (Solidum v. CA, G.R. No. i. is within the coverage of the Rule (amount
161647, June 22, 2006) not exceeding P100,000), exclusive of
interest and costs;
COMPLAINT-IN-INTERVENTION ii. arises out of the same transaction or event
that is the subject matter of the plaintiffs
Q: What is a complaint-in-intervention? claim;
iii. does not require for its adjudication the
A: It is a pleading filed for the purpose of asserting a claim joinder of third parties; and
against either or all of the original parties (Sec 3, Rule 19). iv. is not a subject of another pending action
(Sec. 13, A.M. No. 08-8-7-SC).
Q: What are the requisites for an intervention by a non-
party in an action pending in court? (2000 Bar b. Permissive counterclaim
Examination) Counterclaim against the plaintiff that does not
arise out of the same transaction or occurrence,
A: The requisites for intervention are: provided that the amount and nature thereof are
1. Legal interest in the matter in controversy; or within the coverage of the Rule and the prescribed
2. Legal interest in the success of either of the parties; or docket and other legal fees are paid (Sec. 13, A.M.
3. Legal interest against both; or No. 08-8-7-SC).
4. So situated as to adversely affected by a distribution or
other disposition of property in the custody of the court Q: What are the civil cases covered by the Rule on Small
or of an officer thereof. Claims?
5. Intervention will not unduly delay or prejudice the
adjudication of the rights of original parties; A: When the claims or demand arises from:
6. Intervenors rights may not be fully protected in a 1. Money not exceeding P100,000 owed under any of
separate proceeding. (Sec. 1, Rule 19). following:
a. Contract of lease;
REPLY b. Contract of loan;
c. Contract of services;
Q: Is the filing of a reply necessary? d. Contract of sale; or
e. Contract of mortgage.
A: GR: No, since even if a party does not file a repy, all the 2. For damages in the amount not exceeding P100,000
new matters that were alleged in the answer are deemed arising from any of the following:
controverted. (Sec. 10, Rule 6) a. Fault or negligence;
b. Quasi-contracts; and
XPNs: c. Contracts
1. Where the answer alleges the defense of usury in which 3. The enforcement of a barangay amicable settlement
case a reply under oath should be made. Otherwise, the or an arbitration award involving a money claim
allegation of usurious interest shall be deemed covered by this rule pursuant to Sec. 417 of the Local
admitted. Government Code of 1991 (Sec. 4, A.M. No. 08-8-7-SC).
2. Where the defense in the answer is based on an
actionable document, a reply under oath pursuant to Q: What are the pleadings allowed in a summary
Sec. 8 of Rule 8 must be made. Otherwise, the procedure?
genuineness and due execution of the document shall
be deemed admitted. (Sec. 8, Rule 8) A:
1. Complaint
PLEADINGS ALLOWED IN SMALL CLAIM CASES AND CASES 2. Compulsory counterclaim
COVERED BY THE RULES ON SUMMARY PROCEDURE
Note: While in small claims cases, permissive counterclaim is
Q: What are the pleadings allowed in small claims cases? allowed as long as the amount and nature thereof is within the
coverage of the Rule, in Summary procedure, such is not
allowed.
A:
1. Statement of Claim (Form 1-SSC)
3. Cross-claims pleaded in the answer
Note: It must be accompanied by a certification of non forum 4. Answer to these pleadings. (Sec. 3, Rules on Summary
shopping and 2 photocopies of the actionable document/s Procedure)
subject of the claim as well as affidavits of witnesses and
other evidence to support the claim. No evidence shall be Q: What are the civil cases covered by the Rules on
allowed during the hearing which was not attached to the Summary Procedure?
claim unless good cause is shown for the admission of the
evidence (Sec. 5, Rules on Small Claims) A:
1. Civil cases:
2. Response

41 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
a. All cases of forcible entry and unlawful detainer,
irrespective of amount of damages or unpaid
rentals sought to be recovered provided when
attorneys fees are awarded, the same shall not
exceed P20,000.00; and
b. All other civil cases, except probate proceedings,
where the total amount of the plaintiffs claim
does not exceed P100,000 or P200,000 in
Metropolitan Manila, exclusive of interest and
costs (As amended by A.M. No. 02-11-09-SC
effective Nov. 5, 2002).
Q: What are the prohibited pleadings, motions and
petitions in small claims and summary procedure?
A:
1. Motion to dismiss the complaint
XPN: In cases covered by small claims, a Motion to
Dismiss is a prohibited pleading which admits no
exception (SC En Banc Resolution dated October 27,
2009 in A.M. No. 08-8-7-SC) while in cases covered by
summary procedure, a Motion to Dismiss may be filed
only either on the ground of lack of jurisdiction over
the subject matter or upon failure to refer the dispute
to the Lupon Tagapamayapa as required by the LGC.
2. Motion for a bill of particulars.
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial.
4. Petition for relief from judgment.
5. Motion for extension of time to file pleadings,
affidavits, or any other paper.
6. Memoranda.
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court.
8. Motion to declare the defendant in default.
9. Dilatory motions for postponement.
10. Reply.
11. Third-party complaints.
12. Interventions (Sec.14 of A.M. No. 08-8-7-SC).
PARTS OF A PLEADING
Q: What are the parts of a pleading?
A:
1. Caption
2. Body sets forth its designation, the allegations of the
partys claims or defenses, the relief prayed for, and the
date of the pleading.
a) paragraphs
b) headings
c) relief
d) date
3. Signature and address
4. Verification (in several cases)
5. Certification against forum shopping
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
CAPTION
Q: What should the caption contain?
A: The caption sets forth the name of the court, the title of
the action, and the docket number if assigned (Sec. 1, Rule
7).
Q: What should the title of the caption indicate?
A: It should indicate the names of the parties. They shall all
be named in the original complaint or petition but in
subsequent pleadings, it shall be sufficient if the name of
the first party on each side be stated with an appropriate
indication when there are other parties (Sec. 1, Rule 7).
SIGNATURE AND ADDRESS
Q: What is the rule regarding the signature and address?
A: The complaint must be signed by the plaintiff or counsel
representing him indicating his address. This address should
not be a post office box. An unsigned pleading produces no
legal effect. However, the court may, in its discretion, allow
such deficiency to be remedied if it shall appear that the
same was due to mere inadvertence and not intended for
delay (Sec. 3, Rule 7).
Q: When may a counsel be subjected to appropriate
desciplinary measures?
A: When counsel:
1. Deliberately files an unsigned pleading
2. Signs a pleading in violation of this Rule
3. Alleges scandalous or indecent matter therein
4. Fails to promptly report to the court a change of
his address
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING
Q: How are pleadings verified?
A: It is verified by an affidavit. This affidavit declares that
the:
1. Affiant has read the pleading; and
2. Allegations therein are true and correct of his
personal knowledge or based on authentic records (Sec. 4,
Rule 7)
Note: Verification is not necessary in pleadings, except when
otherwise specifically required by law or rule (Sec. 4, Rule 7).
Q: What is the significance of verification?
A: it is intended to secure an assurance that the allegations
in a pleading 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 absence of a proper
verification is cause to treat the pleading as unsigned and
dismissible. (Chua vs. Torres, 468 SCRA 358; Riano, Civil
Procedure: A Restatement for the Bar, p. 60, 2009 ed)
42
 CIVIL PROCEDURE
Q: What are the pleadings that must be verified? (1996
Bar Question)
A: The following must be verified:
1. Petition for relief from judgment
2. Petition for review from the RTCs to the CA
3. Petition for review from the CTA and quasi-judicial
agencies to the CA
4. Appeal by certiorari from the CA to the SC
5. Petition for annulment of judgments or final orders
and resolutions
6. Complaint for injunction
7. Application for appointment of receiver
8. Application for support pendente lite
9. Petition for certiorari against the judgments, final
orders or resolutions of constitutional commissions
10. Petition for certiorari, prohibition, mandamus, quo
warranto
11. Complaint for expropriation
12. Complaint for forcible entry or unlawful detainer
13. Petition for indirect contempt
14. Petition for appointment of general guardian
15. Petition for leave to sell or encumber property of an
estate by a guardian
16. Petition for the declaration of competency of a ward
17. Petition for habeas corpus
18. Petition for change of name
19. Petition for voluntary judicial dissolution of a
corporation;
20. Petition for correction or cancellation of entries in Civil
Registry. (Regalado, Remedial Law Compendium, Vol. I,
p. 160, 2010 ed)
Q: What are the effects of lack of verification?
A:
1. A pleading required to be verified but lacks the
proper verification shall be treated as an unsigned
pleading (Sec. 4 as amended by A.M. 00-2-10, May 1,
2000). Hence, it produces no legal effect (Sec. 3, Rule
7).
2. It does not necessarily render the pleading
defective. It is only a formal and not a jurisdictional
requirement. The requirement is a condition affecting
only the form of the pleading (Benguet Corp. v.
Cordillera Caraballo Mission, Inc., G.R. No. 155343,
Sept. 2, 2005) and non-compliance therewith does not
necessarily render it fatally defective (Sarmiento v.
Zaranta, G.R. No. 167471, Feb. 5, 2007).
3. The absence of verification may be corrected by
requiring an oath. The rule is in keeping with the
principle that rules of procedure are established to
secure substantial justice and that technical
requirements may be dispensed with in meritorious
cases (Pampanga Sugar Development Co., Inc. v. NLRC,
G.R. No. 112650, May 29, 1997).
Q: What is forum-shopping? (2006 Bar Question)
A: It is an act of a party against whom an adverse judgment
has been rendered in one forum of seeking and possibly
getting a favorable opinion in another forum, other than by
appeal or the special civil action of certiorari. (Spouses
43
Carpio v Rural Bank of Sto Tomas Batangas, G.R. No.
153171, May 4, 2006)
Q: What is the test to determine forum-shopping?
A: Whether in the two or more cases pending, there is
identity of:
1. Parties
2. Rights or Causes of action
3. Reliefs sought (Huibonhoa v. Concepcion, G.R. No.
153785 August 3, 2006)
Q: What is the nature of the certification against forum
shopping?
A: It is a mandatory requirement in filing a complaint and
other initiatory pleadings asserting a claim or relief (Sec. 5,
Rule 7). This rules applies as well to special civil actions
since a since rules for ordinary civil action are suppletory.
(Riano, Civil Procedure: A Restatement for the Bar, p. 63,
2009 ed)
Q: Who executes certification against forum-shopping?
A: It must be signed by the principal parties. If, for any
reason, the principal party cannot sign the petition, the one
signing on his behalf must have been duly authorized. With
respect to a corporation, the certification against forum
shopping may be signed for and on its behalf, by a
specifically authorized lawyer who has personal knowledge
of the facts required to be disclosed in such document
(Cosco Philippines Inc. v. Kemper Insurance Co., G.R. No.
179488, April 23, 2012)
Q: What are the undertakings of a party under the
certification against forum shopping?
A:
1. That the party has not commenced or filed any claim
involving the same issues in any court, tribunal, or
quasi-judicial agency and, to the best of his
knowledge, no such other action or claim is pending;
2. That if there is such other pending action or claim, a
complete statement of the present status thereof;
3. That if he should therefore learn that the same or
similar action or claim has been filed or is pending, he
shall report that fact within five days therefrom to the
court wherein his aforesaid complaint or initiatory
pleading has been filed (Sec. 5, Rule 7).
Q: What is the effect of non-compliance with the rule on
certification against forum shopping?
A: It is not curable by mere amendment and shall be a
cause for the dismissal of action. (Sec.5, Rule 7).
Note: Willfull and deliberate forum shopping of the party or his
counsel shall be a ground for summary dismissal. This dismissal is
with prejudice and shall constitute direct contempt as well as cause
for administrative sanctions on the part of counsel (Sec. 5, Rule 7)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What is the effect of submission of a false certification?
A: It shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal
actions. (Sec. 5, Rule 7)
Q: What is the effect of non-compliance with the
undertakings?
A: It has the same effect as the submission of false
certification. Hence, such failure shall constitute indirect
contempt of court without prejudice to the corresponding
administrative and criminal sanctions. (Sec. 5, Rule 7)
Q: If there a party commits forum shopping, would the
two cases filed be dismissed?
A: If the forum shopping is not considered willful and
deliberate, the subsequent case shall be dismissed without
prejudice, on the ground of either litis pendentia or res
judicata. However, if the forum shopping is willful and
deliberate, both (or all, if there are more than two) actions
shall be dismissed with prejudice (Chua v. Metropolitan
Bank & Trust co. G.R. No. 182311, August 19, 2009).
Q: Is belated filing allowed by the courts?
A: GR: No. The lack of certification against
forum shopping is generally not curable by the submission
thereof after the filing of the petition.
XPN: In certain exceptional circumstances, the Court has
allowed the belated filing of the certification. In Loyola v.
Court of Appeals, et al. (245 SCRA 477 [1995]), the Court
considered the filing of the certification one day after the
filing of an election protest as substantial compliance with
the requirement. In Roadway Express, Inc. v. Court of
Appeals, et al. (264 SCRA 696 [1996]), the Court allowed the
filing of the certification 14 days before the dismissal of the
petition. In Uy v. LandBank, supra, the Court had dismissed
Uys petition for lack of verification and certification
against non-forum shopping. However, it subsequently
reinstated the petition after Uy submitted a motion to
admit verification and non forum shopping certification. In
all these cases, there were special circumstances or
compelling reasons that justified the relaxation of the rule
requiring verification and certification on non-
forum shopping.
Note: Any liberal application of the rule on attachment of
certification against forum shopping has to be justified by ample
and sufficient reasons that maintain the integrity of, and do not
detract from, the mandatory character of the rule (Bank of the
Philippine Islands v. Court of Appeals, G.R. No., 168313, October 6,
2010).
Q: Is substantial compliance allowed by the courts?
A: GR: No. The rule is that the certificate of non-forum
shopping must be signed by all the petitioners or plaintiffs
in a case and the signing by only one of them is insufficient.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
XPN: However, the Court has also stressed that the rules on
forum shopping, which were designed to promote and
facilitate the orderly administration of justice, should not
be interpreted with such absolute literalness as to subvert
its own ultimate and legitimate objective. The rule of
substantial compliance may be availed of with respect to
the contents of the certification. This is because the
requirement of strict compliance with the provisions
regarding the certification of non-forum shopping merely
underscores its mandatory nature in that the certification
cannot be altogether dispensed with or its requirements
completely disregarded. It does not thereby interdict
substantial compliance with its provisions under justifiable
circumstances (Cavile v. Heirs of Clarita Cavile, 448 Phil 302,
2003).
Q: When should the rule on forum shopping be invoked?
A: GR: It should be raised at the earliest opportunity in a
motion to dismiss or a similar pleading (Regalado, Remedial
Law Compendium, Vol. I, p. 171, 2010 ed.).
XPNs: It may be invoked in later stages only if the violation
arises from or will result in:
1. The loss of jurisdiction over the subject matter;
2. The pendency of another action between the same
parties for the same cause;
3. Barring of the action by a prior judgment; or
4. The Statute of Limitations has been crossed (Young
v. Keng Seng, G.R. No.143464, Mar. 5, 2003).
Q: Mayor Miguel of Koronadal City filed an action against
RD Corporation for the annulment of the deed of absolute
sale over several real properties of Koronadal City with
the RTC. He alleges irregularities thereto but the RTC
dismissed the petition because the certification against
forum shopping was signed by the City Legal Officer of City
of Koronadal and not by Mayor Miguel. Is the RTC correct?
A: Yes. It is the mayor, not the City Legal Officer, who has
the authority to file suits for the recovery of funds and
property on behalf of the city even without the prior
authorization from the Sanggunian. Here, Mayor Miguel
had the authority to institute the action against RD
Corporation. However, being the proper party to file such
suits, Mayor Miguel must necessarily be the one to sign the
certification against forum-shopping, and not the City Legal
Officer, who, despite being an official of the City, was
merely its counsel and not a party to the case (City of
Caloocan v. CA, G.R. No. 145004, May 3, 2006).
Q: What is the rule when the plaintiff is a juridical person?
A: The certification against forum shopping where the
plaintiff is a juridical entity like a corporation, may be
executed by properly authorized person. This person may
be a lawyer of a corporation. As long as he is duly
authorized by the corporation and has personal knowledge
of the facts required to be disclosed in the certification,
such may be signed by the authorized lawyer. (National
Steel Corporation vs. CA, 388 SCRA 85; Riano, Civil
Procedure: A Restatement for the Bar, p. 70, 2009 ed)
44
 CIVIL PROCEDURE
Q: Corporation XYZ is the petitioner in a civil case.
Alexander, president of corporation XYZ, signed the
certification against forum shopping in behalf of said
corporation without presenting any proof of authority
from the corporation. Is the certification against forum
shopping valid? If not, how may it be cured?
A: No. When the petitioner in a case is a corporation, the
certification against forum shopping should be signed by its
duly authorized director or representative. The authorized
director or representative of the corporation should be
vested with authority by a valid board resolution. A proof of
said authority must be attached with the certification (PAL
v. FASAP, G.R. No. 143088, Jan. 24, 2006).
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING
Q: What is the effect of lawyers signature?
A: The signature of counsel constitutes:
1. A certificate by him that he has read the pleading;
2. That to the best of his knowledge, information and
belief there is good ground to support it; and
3. That it is not interposed for delay (Sec. 3, Rule 7)
ALLEGATIONS IN A PLEADING
MANNER OF MAKING ALLEGATIONS
Q: What is the rule when making a pleading?
A: Every pleading shall contain in a methodical and logical
form a plain, concise and direct statement of the ultimate
facts, omitting the statement of mere evidentiary facts.
(Sec. 1, Rule 6)
Q: What are Ultimate facts?
A: They refer to the essential facts of the claim. A fact is
essential if it cannot be stricken out without leaving the
statement of the cause of action insufficient. (Ceroferr
Realty Corporation vs. Court of Appeals, 376 SCRA 144)
CONDITION PRECEDENT
Q: What is condition precedent?
A: It refers to matters which must be complied with before
a cause of action arises (Riano, Civil Procedure: A
Restatement for the Bar, p. 97, 2009 ed)
Q: What is the rule on conditions precedent?
A: When a claim is subject to a condition precedent, the
compliance of the same must be alleged in the pleading.
Otherwise it will be a ground for dismissal under Rule 16,
Sec. 1[j]: that a condition precedent for filing a claim has
not been complied with. (Riano, Civil Procedure: A
Restatement for the Bar, p. 97, 2009 ed)
FRAUD, MISTAKE, MALICE, INTENT, KNOWLEDGE AND
OTHER CONDITION OF THE MIND, JUDGMENTS, OFFICIAL
DOCUMENTS OR ACTS
Q: What is the rule in making averments of FRAUD or
MISTAKE?
A: The circumstances constituting such fraud or mistake
must be stated with particularity (Sec. 5, Rule 8). These
particulars would necessarily include the time, place, and
specific acts of fraud committed against him (Riano, Civil
Procedure: A Restatement for the Bar, p. 98, 2009 ed).
Q: How about in making averments of malice, intent,
knowledge or other conditions of the mind of a person?
A: The circumstances constituting such may be averred
generally (Sec.5, Rule 8).
Q: The complaint alleged that the defendant acted in bad
faith, arbitrarily, illegally, wrongfully and in violation of
law. However, it did not contain any averment of facts
showing that defendants acts were done in the manner
alleged. Does the complaint state a cause of action?
A: No, because it does not state the ultimate facts
constituting the plaintiffs cause of action. The allegations
that the defendant acted in bad faith, arbitrarily, illegally,
wrongfully and in violation of law are mere conclusions of
fact or conclusions of law. (Remitere v. De Yulo 16 SCRA
251).
Q: What is the rule in pleading an official document or
act?
A: It is sufficient to aver that the document was issued in
compliance with law. With respect to an act, it is likewise
sufficient to allege that the act was done also in compliance
with law (Sec. 9, Rule 8; Riano, Civil Procedure: A
Restatement for the Bar, p. 98, 2009 ed)
PLEADING AN ACTIONABLE DOCUMENT
Q: What is an actionable document?
A: It is one which is the basis of an action or a defense. e.g.
A promissory note in an action for collection of a sum of
money
Q: How are actionable documents pleaded?
A: By setting forth:
1. The substance of such document in the pleading and
attaching said document thereto as an exhibit or
2. Said document verbatim in the pleading (Sec. 7, Rule
8).
Note: A variance in the substance of the document set forth in the
pleading and the document annexed thereto does not warrant the
dismissal of the action (Convets, Inc. v. National Development Co.,
G.R. No. L-10232, Feb. 28, 1958). However, the contents of the
document annexed are controlling.
45 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
SPECIFIC DENIALS
Q: What are the kinds of specific denial?
A:
1. Absolute denial defendant specifies each material
allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance
of the matters upon which he relies to support his
denial.
2. Partial denial defendant denies only a part of an
averment. In this kind he shall specify so much of it as is
true and material and shall deny only the remainder.
3. Disavowal of knowledge defendant alleges that he is
without knowledge or information sufficient to form a
belief as to the truth of a material averment made in
the complaint (Riano, Civil Procedure: A Restatement for
the Bar, p. 325, 2009 ed.).
EFFECT OF FAILURE TO MAKE SPECIFIC DENIALS
Q: What is the effect of failure to make specific denial?
A: Material averments except as to the amount of
unliquidated damages, not specifically denied are deemed
admitted. If the allegations are deemed admitted, there is
no more triable issue between the parties and if the
admissions appear in the answer of the defendant, the
plaintiff may file a motion for judgment on the pleadings
under Rule 34 (Riano, Civil Procedure: A Restatement for
the Bar, p. 324, 2009 ed.).
WHEN A SPECIFIC DENIAL REQUIRES AN OATH
Q: When must a specific denial be coupled with an oath?
A:
a. A denial of an actionable document (Sec. 8, Rule 8)
b. A denial of allegations of usury in a complaint to
recover usurious interest (Sec. 11, Rule 8)
Note: An answer raising a specific denial based on the above
grounds is deemed to be under oath if it contains a verification.
Q: A and B entered into a contract to sell whereby A will
deliver to B the parcel of land upon payment of the
purchase price. Upon full payment, A demanded the
delivery of the land. However, before the contract of sale
was executed, B died. Hence, A filed an action for specific
performance against S, the son of A presenting the
contract to sell. S made a specific denial of the actionable
document but it was not made under oath. Is S said to
have admitted the existence and genuineness of the
contract to sell?
A: No. it is not required for S to make a specific denial
under oath because he is not a party to the instrument.
(Rule 8, Sec. 8, par. 2). It is only when the adverse party is a
party to the written instrument when specific denial under
oath is required.
Note: Denial under oath is also not required when there is an order
for inspection issued by the court, i.e. inspection order under Rule
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
27 of the original document, and such order is refused (Rule 8, Sec.
8). It is not also required when the action is not to recover usurious
interest as when usuruios interest is being raised as a defense in a
collection case.
Note: Only the requirement of an oath is excused in the 3
instances mentioned (not a party to the instrument, refusal to
comply with an inspection order, and suit not based on recovery of
usurious interest). Specific denial must still be pleaded. Hence,
even if the party made an oath, or when an oath is excused but a
general denial is made, then it is still deemed as an admission of
the genuineness and due execution of the document.
EFFECT OF FAILURE TO PLEAD
FAILURE TO PLEAD DEFENSES AND OBJECTIONS
Q: May defenses not pleaded in a motion to dismiss or in
the answer still be raised?
A: GR: No, they are deemed waived.
XPNs: These defenses may be raised at any stage of the
proceedings even for the first time on appeal:
1. Lack of jurisdiction over the subject matter
Note: It may however, be barred by laches.
2. Litis pendentia
3. Res judicata; and
4. Statute of limitations (Sec. 1, Rule 9)
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM
Q: May a compulsory counterclaim or cross-claim not set
up in the answer still be raised subsequently?
A: GR: A compulsory counterclaim or cross-claim not set up
in the answer is deemed barred (Sec. 2, Rule 9).
XPN: If the compulsory counterclaim or cross-claim is an
after-acquired counterclaim, that is, such claim matured
after filing of the answer, it may be pleaded by filing an
amended answer or a supplemental answer or pleading
(Sec. 9, Rule 11).
Note: Counterclaims or cross-claims omitted through oversight,
inadvertence, or excusable neglect or when justice requires may be
set up by amendment before judgment. Leave of court is necessary
(Sec. 10, Rule 11).
DEFAULT
WHEN A DECLARATION OF DEFAULT IS PROPER
Q: When may a party be declared in default? (1999 Bar
Question)
A: A party may be declared in default when he fails to
answer within the time allowed therefor, and upon motion
of the claiming party with notice to the defending party,
and proof of such failure. (Sec.3 Rule 9)
46
 CIVIL PROCEDURE

Note: The court has no authority to motu proprio declare the EFFECT OF A PARTIAL DEFAULT
defendant in default. A motion to declare the defending party must
be filed by the claiming party before a declaration of default is When a pleading asserting a claim states a common cause
made by the court. The rule is clear, Sec. 3 of Rule 9 provides
of action against several defending parties, some of whom
upon motion of the claiming party (Riano, p. 351, 2009 ed)
answer and the others fail to do so, the court shall try the
case against all upon the answers thus filed and render
EFFECT OF AN ORDER OF DEFAULT
judgment upon the evidence presented (Sec 3, Rule 9).
Q: What are the effects of an order of default? (1999 Bar
EXTENT OF RELIEF
Question)
The judgment shall not exceed the amount or be different
A:
in kind from that prayed for nor award unliquidated
1. The party declared in default loses his standing in court
damages [Sec. 3(d), Rule 9]. However, if the court orders
and prevents him from taking part in the trial [Sec. 3(a),
submission of evidence, unliquidated damages may be
Rule 9];
awarded based on such.
2. While the defendant can no longer take part in the trial,
he is nevertheless entitled to notices of subsequent
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
proceedings [Sec. 3 (a), Rule 9]. It is submitted that he
may participate in the trial, not as a party but as a
Q: When is default not allowed?
witness; and
3. A declaration of default is not an admission of the truth
A:
or the validity of the plaintiffs claims (Monarch
1. Actions for annulment;
Insurance v. CA, G.R. No. 92735, June 8, 2000).
2. Declaration of nullity of marriage and legal separation
[Sec. 3(e), Rule 9]; and
RELIEF FROM AN ORDER OF DEFAULT
3. In special civil actions of certiorari, prohibition and
mandamus where comment instead of an answer is
Q: What are the reliefs available from an order of default?
required to be filed.
(1998 Bar Question)
Note: A motion to declare defendant in default is a prohibited
A: pleading in Summary Procedure, Small Claims and Environmental
1. After notice of order and before judgment The Cases.
defendant must file a verified motion to set aside the
order of default upon proper showing that: FILING AND SERVICE OF PLEADINGS
a. His failure to answer was due to fraud,
accident, mistake or excusable negligence; and Q: What papers are required to be filed with the court and
b. That he has a meritorious defense [Sec. 3(b), served with the adverse party?
Rule 9]. (2000 & 1999 Bar Question)
A: JuReO-PleWrit-NADOS
2. After judgment and before judgment becomes final and 1. Judgment
executory He may file a motion for new trial under 2. Resolution
Rule 37. He may also appeal from the judgment as 3. Order
being contrary to the evidence or the law (Talsan 4. Pleading subsequent to the complaint
Enterprises, Inc. v. Baliwag Transit, Inc., G.R. No. 5. Written motion
169919, Sept. 11, 2009) 6. Notice
7. Appearance
3. After the judgment becomes final and executory he 8. Demand
may file a petition for relief from judgment under Rule 9. Offer of judgment or
38 (Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 10. Similar papers (Sec.4, Rule 13).
12, 1992) (2006, 1998 Bar Question)
Q: What papers are required to be filed?
4. Where the defendant has however, been wrongly or
improvidently declared in default, the court can be A: PAM-NOJA
considered to have acted with grave abuse of discretion 1. Pleadings
amounting to lack or excess of jurisdiction and when 2. Appearances
the lack of jurisdiction is patent in the face of the 3. Motions
judgment or from the judicial records, he may avail of 4. Notices
the special civil action of certiorari under Rule 65 5. Orders
(Balangcad v. Justices of the CA, G.R. No. 83888, Feb. 6. Judgments
12, 1992) 7. All other papers (Sec. 3, Rule 13)

47 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What are those required to be served to the adverse Q: Distinguish filing from service of pleadings and other
party? papers.

A: PM-NOJO A: Filing of pleadings and other papers is the act of

1. Pleadings presenting the original copies thereof, plainly indicated as
2. Motions such, to the clerk of court, whereas service is the act of
3. Notices providing a party with a copy of the pleading. (Francisco,
4. Orders Civil Procedure 2001)
5. Judgments
6. Other papers (Sec. 5, Rule 13) PERIODS OF FILING OF PLEADINGS

PAYMENT OF DOCKET FEES Q. When should a responsive pleading be filed?

Q: What are the rules regarding payment of docket fees? A:

Periods for Filing an
A: Answer
1. It is not simply the filing of the complaint or appropriate Answer to an Within 15 days after
initiatory pleading, but the payment of the prescribed original complaint service of summons,
docket fee that vests a trial court with jurisdiction over unless a different
the subject matter or nature of the action. Where the period is fixed by the
filing of the initiatory pleading is not accompanied by court (Sec. 1, Rule 11).
payment of the docket fee, the court may allow Defendant is a Within 15 days after
payment of the fee within a reasonable time but in no foreign private service of summons
case beyond the applicable prescriptive or juridical entity and (Sec.6, in relation to
reglementary period. has a resident agent Sec.5[a], Rule 2, A.M.
NO. 00-8-10-SC 2000-
2. The same rule applies to permissive counterclaims, 11-21)
third party claims and similar pleadings, which shall not Defendant is a Within 15 days after
be considered filed until and unless the filing fee foreign private service of summons to
prescribed therefor is paid. The court may also allow juridical entity and said agent or officer
payment of said fee within a reasonable time but also has no resident (Sec.6, in relation to
in no case beyond its applicable prescriptive or agent but has an Sec.5[b], Rule 2, A.M.
reglementary period. agent / officer in the NO. 00-8-10-SC 2000-
Philippines 11-21)
3. Where the trial court acquires jurisdiction over a claim Defendant is a Within 30 days after
by the filing of the appropriate pleading and payment of foreign private receipt of summons by
the prescribed filing fee but, subsequently, the juridical entity and the home office of the
judgment awards a claim not specified in the pleading, has no resident foreign private entity
or if specified the same has been left for determination agent nor agent/
by the court, the additional filing fee therefor shall officer.
constitute a lien on the judgment. It shall be the (Summons to be
responsibility of the Clerk of Court or his duly served to SEC which
authorized deputy to enforce said lien and assess and will then send a copy
collect the additional fee. (Sun Insurance Office, Ltd. v. by registered mail
Hon. Maximiano Asuncion, 170 SCRA 274). within 10 days to the
home office of the
FILING VERSUS SERVICE OF PLEADINGS foreign private
corporation)
Q: What is filing? Service of summons Within the time
by publication specified in the order
A: It is the act of presenting the pleading or other paper to which shall not be less
the clerk of court (Sec. 2, Rule 13). than 60 days after
notice (Sec. 15, Rule
Q: What is service? 14)
Non-resident Not be less than 60
A: It is the act of providing a party with a copy of the defendant to whom days after notice (Sec.
pleading or paper concerned. If any party has appeared by extraterritorial 15, Rule 14)
counsel, service upon him shall be made upon his counsel service of summons
or one of them, unless service upon the party himself is is made
ordered by the court (Sec. 2, Rule 13). Answer to amended Within 15 days from
complaint (Matter service of amended
of right) complaint (Sec. 3. Rule

UNIVERSITY OF SANTO TOMAS 48

2013 GOLDEN NOTES
 CIVIL PROCEDURE

11) SERVICE BY MAIL

Answer to amended Within 10 days
complaint (Not a counted from notice Q: How is service by mail done?
matter of right) of the court order
admitting the same A:
(Sec. 3, Rule 11) 1. By depositing the copy in the post office in a sealed
Counterclaim or Within 10 days from envelope, plainly addressed to the party or his counsel
cross-claim service (Sec. 4, Rule at his office, if known, otherwise at his residence, if
11) known, with postage fully prepaid, and with instructions
Third (fourth, etc.) Like an original to the postmaster to return the mail to the sender after
party complaint defendant 15, 30, 60 10 days if undelivered; or
days as the case may 2. If no registry service is available in the locality of either
be (Sec. 5; Regalado, the sender or the addressee, service may be done by
Vol. I, p. 212, 2005 ed.) ordinary mail (Sec. 7, Rule 13).
Supplemental Within 10 days from
complaint notice of order Q: When may service by mail be done?
admitting the same
unless a different A: Service and filing by mail may be done only when
period is fixed by the personal service and filing is not practicable.
court (Sec. 7, Rule 11)
SUBSTITUTED SERVICE
Note: Upon motion and on such terms as may be just, the court
may extend the time to plead provided in these Rules. The court Q: How and when is substituted service made?
may also, upon like terms, allow an answer or other pleading to be
filed after the time fixed by these Rules (Sec.11, Rule 11). A: If service of pleadings, motions, notices, resolutions,
orders and other papers cannot be made under the two
MANNER OF FILING preceding sections, the office and place of residence of the
party or his counsel being unknown, service may be made
Q: What are the modes of filing? by delivering the copy to the clerk of court, with proof of
failure of both personal service and service by mail (Sec. 8,
A: Rule 13).
a. By presenting the original copies thereof, plainly
indicated as such, personally to the clerk of court; or SERVICE OF JUDGMENTS, FINAL ORDERS OR RESOLUTIONS
b. By sending them through registered mail (Sec. 3, Rule 13)
Q: How is service of judgment of final orders or
Note: Filing by mail should be through the registry service which is resolutions done?
made by deposit of the pleading in the post office, and not through
other means of transmission.
A: By:
1. Personal service;
MODES OF SERVICE
2. Registered mail; or
3. Publication, if party is summoned by publication and
Q: What are the modes of service?
has failed to appear in the action (Sec. 9, Rule 13)
A:
Note: No substituted service is allowed with regard to judgments,
1. Personal service (Sec. 6, Rule 13); final orders or resolutions.
2. Service by registered mail (Sec. 7, Rule 13); or
3. Substituted service (Sec. 8, Rule 13). PRIORITIES IN MODES OF SERVICE AND FILING

PERSONAL SERVICE Q: What are the priorities in modes of service and filing?

Q: How is personal service done?
A: By:
1. Delivering personally a copy to the party or his counsel;
2. Leaving a copy in counsels office with his clerk or with a
person having charge thereof; or
3. Leaving the copy between 8 a.m. and 6 p.m. at the
partys or counsels residence, if known, with a person
of sufficient age and discretion residing therein if no
person found in his office, or if his office is unknown, or
if he has no office (Sec. 6, Rule 13).
A: Whenever practicable, the service and filing shall be
done personally.
Except with respect to papers emanating from the court, a
resort to other modes must be accompanied by a written
explanation why the service or filing was not done
personally (Sec. 11, Rule 13).
Note: A violation of this rule may be cause to consider the paper as
not filed (Sec. 11, Rule 13).
Note: The explanation must be satisfactory and acceptable to the
court. Otherwise, the court has the discretion to consider the

49 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
pleading, etc., as not having been filed. (Solar Team Enterprises,
Inc. v. Judge Ricafort, 35 Phil. 404)
WHEN SERVICE IS DEEMED COMPLETE
Q: When is service deemed complete?
A:
1. Personal service upon actual delivery.
2. Service by ordinary mail upon expiration of 10 days
after mailing, unless the court otherwise provides.
3. Service by registered mail upon actual receipt by the
addressee, or 5 days from the date he received the first
notice of the postmaster, whichever date is earlier (Sec.
10, Rule 13).
4. Substituted service at the time of such delivery (Sec. 8,
Rule 13).
PROOF OF FILING AND SERVICE
Q: What are the proofs of filing?
A: GR: Filing is proven by its existence in the record of the
case.
XPN: If it is not in the record, and:
1. If filed personally proved by the written or
stamped acknowledgement of its filing by the clerk of
court on a copy of the same; or
2. If filed by registered mail proved by the registry
receipt and the affidavit of the person who did the
mailing with a full statement of:
a. The date and place of depositing the mail in the
post office in a sealed envelope addressed to the
court;
b. With postage fully paid; and
c. With instructions to the postmaster to return
the mail to the sender after 10 days if undelivered
(Sec. 12, Rule 13).
Q: What are the proofs of service?
A:
1. Proof of personal service:
a. Written Admission of the party served; or
b. Official return of the server or
c. Affidavit of the party serving, containing the date,
place and manner of service. (Sec. 13, Rule 13)
2. Proof of service by ordinary mail:
a. Affidavit of mailer showing compliance of Sec. 7,
Rule 13; and
b. Registry receipt issued by the mailing officer (Sec.
13, Rule 13)
3. Registered mail:
a. Affidavit; and
b. Registry receipt issued by the mailing office (Sec.
13, Rule 13).
Note: The registry return card shall be filed immediately upon its
receipt by the sender, or in lieu thereof the unclaimed letter
together with the certified or sworn copy of the notice given by the
postmaster to the addressee. (Sec. 13, Rule 13)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is a notice of lis pendens?
A: In an action affecting title or right of possession of real
property, the plaintiff and the defendant, when affirmative
relief is claimed in his answer, may record in the office of
the registry of deeds of the province in which the property
is situated a notice of the pendency of the action.
Note: Only from the time of filing such notice for record shall a
purchaser, or encumbrancer of the property affected thereby, be
deemed to have constructive notice of the pendency of the action,
and only of its pendency against the parties designated by their
real names (Sec.14, Rule 13).
AMENDMENT
Q: How are pleadings amended?
A: By:
1. Adding or striking out an allegation or the name of any
party; or
2. Correcting a mistake in the name of a party or a
mistaken or inadequate allegation or description in any
other respect (Sec. 1, Rule 10)
AMENDMENT AS A MATTER OF RIGHT
Q: When is amendment considered as a matter of right?
A: It is considered as a matter of right at any time before a
responsive pleading is served or, in the case of a reply, at
any time within ten (10) days after it is served (Sec. 2, Rule
10).
Note: A motion to dismiss is not a responsive pleading and its filing
does not preclude the exercise of the plaintiffs right to amend his
complaint (Paeste Jaurigue, 94 Phil 179; Riano, Civil Procedure: A
Restatement for the Bar, p.246, 2009 ed)
AMENDMENTS BY LEAVE OF COURT
Q: What is the rule on substantial amendments?
A: Substantial amendments may be made only upon leave
of court (Sec. 3, Rule 10).
Q: When is leave of court required? (1994 Bar Question)
A:
1. If the amendment is substantial (Sec. 3, Rule 10); and
2. A responsive pleading had already been served (Siasoco
v. CA, G.R. No. 132753. Feb. 15, 1999)
Note: Plaintiff may amend his complaint even if the same was
dismissed on motion of the defendant provided that the dismissal
order is not yet final. (Arranz vs. Manila Surety and Fidelity Co.,
Inc., L-128441, June 30, 1960)
Q: When may leave of court to amend the complaint be
refused?
A:
1. The motion is made to delay the action; or
50
 CIVIL PROCEDURE

2. The cause of action or defense is substantially altered Q: Distinguish an amended pleading from a supplemental
(Guiang v Nadayag, 214 SCRA 355, 1992). pleading

Q: Can an amendment which confers jurisdiction over the A:

court be allowed? Amended Pleading Supplemental Pleading
Refer to the facts Refers to facts
A: Yes, provided no responsive pleading has yet been filed. existing at the time of occurring after the
In such case, the court will just receive the amended filing of original filing of the original
pleading and will not act since no discretion is involved, it pleading pleading.
being an amendment as a matter of right. However, once a Supersedes the Merely supplements
responsive pleading has already been filed, the amendment original the original pleading.
can no longer be allowed since the court will need to May be amended Always with leave of
exercise its discretion and will already be acting without without leave of court court
jurisdiction (See Riano, Civil Procedure: A Restatement for the before a responsive
Bar, 2009 ed). pleading is filed.
Amendment must be There is no such
FORMAL AMENDMENT appropriately marked. requirement in
supplemental
Q: What is the rule on formal amendments? pleadings (Herrera,
Vol. I, p. 854, 2007
A: A defect in the designation of the parties and other ed.)
clearly clerical or typographical errors may be summarily
corrected by the court at any stage of the action, at its
Q: What are the purposes of supplemental pleading?
initiative or on motion, provided no prejudice is caused
thereby to the adverse party (Sec. 4, Rule 10).
A:
1. It is to bring into the records new facts, which will
AMENDMENTS TO CONFORM TO OR AUTHORIZE
enlarge or change the kind of relief to which the
PRESENTATION OF EVIDENCE
plaintiff is entitled.
2. It is meant to supply deficiencies in aid of the original
Q: When may amendment be made to conform to or
pleading, not to entirely substitute the latter (Herrera,
authorize presentation of evidence?
Vol. I, p. 852, 2007 ed)
A: Note: Filing an answer to a supplemental complaint is not
1. When issues not raised by the pleadings are tried with mandatory because of the use of the word may in Sec. 7, Rule 11.
the express or implied consent of the parties. This is bolstered by the express provision of the Rules that the
answer to the original pleading shall serve as the answer to the
Note: Failure to amend does not affect the result of the trial supplemental pleading if no new or supplemental answer is filed.
of said issue. The Court cannot declare the respondents in default simply
because the latter opted not to file their answer to the
2. Amendment may also be made to authorize supplemental petition. (Chan v. Chan, G.R. No. 150746, Oct. 15,
presentation of evidence if evidence is objected to at 2008)
the trial on the ground that it is not within the issues
made by the pleadings, if the presentation of the EFFECT OF AMENDED PLEADING
merits of the action and the ends of substantial justice
will be subserved thereby (Sec. 5, Rule 10). Q: What is the effect of an amended pleading?

DIFFERENCE FROM SUPPLEMENTAL PLEADINGS A: An amended pleading supersedes the pleading it

Q: What is a supplemental pleading?
A: It is one which sets forth transactions, occurrences, or
events which have happened since the date of the pleading
sought to be supplemented (Sec. 6; Riano, Civil Procedure:
A Restatement for the Bar, p. 261, 2009 ed.).
Note: The cause of action stated in the supplemental complaint
must be the same as that stated in the original complaint.
Otherwise, the court should not admit the supplemental
complaint. (Asset Privatization Trust v. CA, G.R. No. 121171, Dec.
29, 1998)
amends. However, admissions in the superseded pleading
can still be received in evidence against the pleader. Claims
or defenses alleged therein but not incorporated or
reiterated in the amended pleading are deemed waived
(Sec. 8, Rule 10).
Q: What happens to the admissions in the original
pleading?
A: They cease to be judicial admissions. Thus, they are to be
considered as extrajudicial admissions and may be proved
by the party relying thereon by formal offer in evidence of
such original pleading. (Ching v. CA, G.R. No. 110844, Apr.
27, 2000).

51 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
SUMMONS (RULE 14)
NATURE AND PURPOSE OF SUMMONS IN RELATION TO
ACTIONS IN PERSONAM, IN REM AND QUASI IN REM
Q: What is the nature of summons?
A: It is the writ by which the defendant is notified of the
action brought against him (Gomez vs. Court of Appeals,
G.R. No. 127692, March 10, 2004). An important part of
that notice is a direction to the defendant that he must
answer the complaint within a specified period, and that
unless he so answers, plaintiff will take judgment by default
and may be granted the relief applied for (Sec. 2, Rule 14;
Riano, Civil Procedure: A Restatement for the Bar, p. 411 ,
2005 ed)
Note: When the service has been completed, the server shall,
within five (5) days therefrom, serve a copy of the return,
personally or by registered mail, to the plaintiffs counsel, and shall
return the summons to the clerk who issued it, accompanied by
proof of service (Sec. 4, Rule 14)
If summons is returned without being served, the server shall also
serve a copy of the return on the plaintiffs counsel stating the
reasons for the failure of service, within five (5) days therefrom
(Sec. 5, Rule 14).
Q: When can an alias summons be issued?
A: If a summons is returned without being served on any or
all of the defendants or if the summons has been lost, the
clerk, on demand of the plaintiff, may issue an alias
summons (Sec. 5, Rule 14)
Q: What are the purposes of summons?
A:
1. Actions in personam
a. To acquire jurisdiction over the person of the
defendant; and
b. To give notice to the defendant that an action has
been commenced against him (Umandap v. Sabio,
Jr., G.R. No. 140244, Aug. 29, 2000)
2. Actions in rem and quasi in rem not to acquire
jurisdiction over the defendant but mainly to satisfy
the constitutional requirement of due process (Gomez
v. CA, G.R. No. 127692, Mar. 10, 2004).
Q: What is the rule on service of summons on public
corporations?
A: When the defendant is the Republic of the Philippines,
service may be effected on the Solicitor General; in case of
a province, city or municipality, or like public corporations,
service may be effected on its executive head, or on such
other officer or officers as the law or the court may direct
(Sec. 13, Rule 14).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: Can a domestic private juridical entity be served with
summons?
A: Yes. In such case, service may be made on the president,
managing partner, general manager, corporate secretary,
treasurer, or in-house counsel (Sec. 11, Rule 14)
Q: If the defendant is a foreign private juridical entity, can
it be served with summons?
A: Yes, provided it has transacted business in the
Philippines, in which case, service may be made on its: (1)
resident agent designated in accordance with law for that
purpose, or, (2) if there be no such agent, on the
government official designated by law to that effect, or (3)
on any of its officers or agents within the Philippines (Sec.
12, Rule 14).
Q: How about a foreign private juridical entity which is
NOT registered in the Philippines?
A: If the foreign private juridical entity is not registered in
the Philippines or has no resident agent, service may, with
leave of court, be effected out of the Philippines through
any of the following means:
a) By personal service coursed through the appropriate
court in the foreign country with the assistance of the
Department of Foreign Affairs;
b) By publication once in a newspaper of general
circulation in the country where the defendant may be
found and by serving a copy of the summons and the
court order by-registered mail at the last known address
of the defendant;
c) By facsimile or any recognized electronic means that
could generate proof of service; or
d) By such other means as the court may in its discretion
direct. (A.M. No. 11-3-6-SC dated March 15, 2011)
Q: Can an entity without juridical personality be served
with summons?
A: Yes. When persons associated in an entity without
juridical personality are sued under the name by which they
are generally or commonly known, service may be effected
upon all the defendants by serving upon any one of them,
or upon the person in charge of the office or place of
business maintained in such name. But such service shall
not bind individually any person whose connection with the
entity has, upon due notice, been severed before the action
was brought (Sec. 8, Rule 14).
VOLUNTARY APPEARANCE
Q: What is the effect of voluntary appearance before the
court? Explain.
A: GR: The defendants voluntary appearance shall be
equivalent to service of summons and the consequent
52
 CIVIL PROCEDURE

submission of ones person to the jurisdiction of the court

(Sec. 20, Rule 14). Q: Distinguish substituted service of pleadings and other
papers from substituted service of summons?
Note: Voluntary appearance cures the defect in the service of
summons. A:
Substituted service of Substituted service of
XPN: The inclusion in a motion to dismiss of other grounds pleadings and other summons
(affirmative defenses, NOT affirmative relief) aside from/in
papers
addition to lack of jurisdiction over the person of the defendant
shall NOT be deemed a voluntary appearance. Purpose is to provide a Purpose is to acquire
copy of the pleading or jurisdiction over the
PERSONAL SERVICE other papers to the person of the defendant
defendant in order for
Q: When is personal service of summons proper? him to be informed
Availed of only when Only if service in person
A: Only if the suit is one strictly in personam. The service of there is failure to effect cannot be made
summons must be made by service in person on the service personally or by promptly can the
defendant. This is effected by handing a copy of the mail. This failure occurs process server resort to
summons to the defendant in person, or if he refuses to when the office and substituted service
receive it, by tendering the copy of the summons to him residence of the party
(Sec. 6, Rule 14; Riano, Civil Procedure: A Restatement for or counsel are unknown
the Bar, p. 423 , 2005 ed.). Effected by delivering Effected by leaving
the copy to the clerk of copies of teh summons
SUBSTITUTED SERVICE court, with proof of at the ddefendants
faliure of both personal residence to a person of
Q: What are the requirements to effect a valid substituted service and service by suitable age and
service? mail discretion residing
therein or by leaving
A: copies at the
1. The party relying on substituted service or the sheriff defendants office or
must show that defendant cannot be served promptly regular place of busines
or there is impossibility of prompt service; with some competent
2. The sheriff must describe in the Return of Summons the person in charge
facts and circumstances surrounding the attempted thereof.
personal service;
3. If the substituted service will be effected at defendants CONSTRUCTIVE SERVICE (BY PUBLICATION)
house or residence, it should be left with a person of
suitable age and discretion then residing therein and Q: When is summons by publication available?
must have the relation of confidence to the
defendant; A: As a general rule summons by publication is available
4. If the substituted service will be done at defendants only in actions in rem or quasi in rem. It is not available as a
office or regular place of business, then it should be means of acquiring jurisdiction over the person of the
served on a competent person in charge of the place defendant in an action in personam unless covered by the
(Manotoc vs. Court of Appeals, G.R. No. 130974, August following situations:
16, 2006)
a.) where the identity of the defendant is unknown;
Q: What is the reasonable time for the sheriff to effect a b.) where the whereabouts of the defendants are
personal service in order to demonstrate impossibility of unknow;
prompt service? c.) where the defendant a resident of the Philippines
but is temporarily out of the country.
A: To the sheriff, reasonable time means 15 to 30 days d.) where the defendant does not reside and is not
because at the end of the month, it is a practice for the found in the Philippines but the suit can be properly
branch clerk to require the sheriff to submit a return of the maintained against him in the Philippines, it being a
summons assigned to the sheriff for service (Manotoc vs. rem or quasi in rem
Court of Appeals, G.R. No. 130974 , Aug. 16, 2006).
Note: Those enumerated from a to c applies to any action,
Q: When is a person deemed to be of suitable age and which necessarily includes personal action (Riano, Civil
Procedure, 2011 ed.)
discretion to be left with summons?
Summons by publication may be made only with leave of
A: A person of suitable age and discretion is one who has court.
attained the age of full legal capacity (18 years old) and is
considered to have enough discernment to understand the Service upon a foreign juridical entity NOT registered in
importance of a summons (supra). the Philippines, which has transacted business therein

53 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
may be made by publication once a week in a newspaper
of general circulation of the place where the defendant
may be found (A.M. No. 11-3-6-SC dated March 15, 2011)
Q: Can summons be served by mail?
A: No. It cannot be served by mail but it can be done as a
complementary to service of summons by publication but it
does not mean that service by registered mail alone would
suffice. (Regalado, Remedial Law Compendium, Vol. I, p.
242, 2005 ed)
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS ARE
UNKNOWN
The rule in Sec. 14 of Rule 14 authorizes summons by
publication in any action and the rule obviously does not
distinguish whether the action is in personam, in rem, or
quasi in rem. The tenor of the rule authorizes summons by
oublication whatever the action may be as long as the
identity of the defendant is unknown or his whereabouts
are unknown (Santos v. PNOC Exploration, Corporation, 566
SCRA 272)
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES
Q: When may a person be deemed to be temporarily
outside the Philippines?
A: If he has residence or place of business in the
Philippines, and because he cannot be served within a
reasonable time because of his absence in the Philippines,
this absence would now trigger the application of the rule
on substituted service of summons (Montalban v. Maximo,
22 SCRA 1070)
EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED
Q: Can a non-resident defendant who is not found in the
country be served with summons?
A: Yes, but only in cases of extra-territorial service under
any of the following situations:
1. The action affects the personal status of the plaintiff
2. The action relates to, or the subject of which is the
property within the Philippines on which the defendant
has or claims a lien or interest, actual or contingent
3. The action in which the relief demanded consists,
wholly or in part, excludes the defendant from any
interest therein
4. When the property of the defendant has been attached
in the Philippines.
Q: How are summons served in cases of exterritorial
service?
A:
1. With leave of court served outside the Philippines by
personal service;
2. With leave of court served by publication in a
newspaper of general circulation, copy of the summons
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
and order of court must also be sent by registered mail
to the last known address of defendant; or
3. Any other manner the court may deem sufficient. (Sec.
15, Rule 14)
Note: In the case of Carriaga v. Malaya, 143 SCRA 441, summonses
were sent by registered mail to defendants who were residing
abroad. The Court upheld the validity of the service of summons
and stress that the third mode of extratteritorial service was
substantially complied with in this case.
SERVICE UPON PRISONERS AND MINORS
Q: How is service of summons upon a prisoner made?
A: Service shall be effected upon him by the officer having
the management of such jail or institution who is deemed
deputized as a special sheriff for said purpose (Sec. 9, Rule
14).
Q: How is service of summons upon minors made?
A: Service shall be made upon him personally and on his
legal guardian if he has one, or if none, upon his guardian
ad litem whose appointment shall be applied for by the
plaintiff. In the case of a minor, service may also be made
on his father or mother (Sec. 10, Rule 14).
PROOF OF SERVICE
Q: How is proof of service done?
A: It shall be made in writing by the server and shall set
forth the manner, place, and date of service; shall specify
any papers which have been served with the same; and
shall be sworn to when made by a person other than a
sheriff or his deputy (Sec 18, Rule 14).
Note: Absence in the sheriffs return of a statement about the
impossibility of personal service is not conclusive proof that the
service is invalid. The plaintiff may submit proof of prior attempts
at personal service during the hearing of any incident assailing the
validity of the substituted service. Also, the impossibility of service
may be established by evidence. (Herrera, Vol. I, pp. 926-927, 2007
ed)
Q: How is proof of service by publication done?
A: It is done through the following:
1. Affidavit of the printer, his foreman or principal clerk,
business or advertising manager, to which affidavit a
copy of the publication shall be attached; and
2. Affidavit showing the deposit of a copy of the summons
and order for publication in the post office (Sec. 19, Rule
14).
MOTIONS
MOTIONS IN GENERAL
Q: What is a motion?
A: It is an application for relief other than by a pleading
(Sec. 1, Rule 15).
54
 CIVIL PROCEDURE

NOTICE OF HEARING AND HEARING OF MOTIONS

Q: What are the kinds of motions?
A:
1. Motion ex parte One which does not require that the
parties be heard and which the court may act upon
without prejudicing the rights of the other party (Riano,
Civil Procedure: A Restatement for the Bar, p.79, 2009
ed.).
2. Litigated motion One which requires parties to be
heard before a ruling on the motion is made by a court
3. Pro forma motion one which does not satisfy the
requirements of the rules and one which will be treated
as a motion intended to delay the proceedings
(Marimina Development Corporation v. Flojo, 251 SCRA
87)
MOTIONS VERSUS PLEADINGS
Q: What is the 3-day notice rule?
A: GR: Service of the copy of motions should be made in
such a manner as shall ensure its receipt at least three (3)
days before the hearing (Sec. 4, Rule 15).
XPN:
1. Ex parte motions
2. Urgent motions
3. Motions agreed upon by the parties to be heard on
shorter notice or jointly submitted by the parties
4. Motions for summary judgment which must be
served at least ten (10) days before its hearing
(Regalado, Remedial Law Compendium, Vol. I, p.
260, 2005 ed.)
5. Non-litigated motions

Motion Pleading Q: What shall the notice of hearing specify?

A motion is an It is a written
application for statement of the A: It shall specify the time and date of the hearing which
relief other than a respective claims and shall not be later than ten (10) days after the filing of the
pleading (Sec. 1, defenses of the motion and it shall be addressed to the parties concerned
Rule 15). parties submitted to (Sec. 5, Rule 15).
the court for
appropriate Q: What is the rule on hearing of motions?
judgment (Sec. 1, Rule
6). It may be in the A: Every written motion shall be set for hearing by the
form of a complaint, applicant except motions which the court may act upon
counterclaim, cross- without prejudicing the rights of the adverse party (Sec. 4,
claim, third-party Rule 15).
complaint, or
complaint-in- OMNIBUS MOTION RULE
intervention, answer
or reply (Sec. 2, Rule Q: What is the Omnibus Motion Rule?
6).
A: GR: All available grounds for objection in attacking a
CONTENTS AND FORMS OF MOTIONS pleading, order, judgment, or proceeding should be invoked
at one time; otherwise, they shall be deemed waived (Sec.
Q: Should a motion be in writing? 8, Rule 15).

A: Yes except those made in open court or in the course of XPN:

hearing or trial (Sec. 2, Rule 15).
Q: What are the contents of a motion?
A:
1. the relief sought to be obtained;
2. the ground upon which it is based; and
3. if required by the Rules or necessary to prove facts
alleged therein, shall be accompanied by supporting
affidavits and other papers (Sec. 3, Rule 15).
Q: May a motion pray for judgment?
A: GR: No.
XPN: Motion for:
1. judgment on the pleadings;
2. summary judgment; or
3. Judgment on demurrer to evidence.
1. Lack of jurisdiction over the subject matter;
2. Litis pendentia;
3. Res judicata; and
4. Prescription (Sec. 1, Rule 9)
LITIGATED AND EX-PARTE MOTIONS
Q: What is a litigated motion?
A: It is a motion which affects the substantial rights of the
parties and is one made with notice to the adverse party to
give an opportunity to oppose before a ruling on the
motion is made by the court. A hearing is required (Sec. 4,
Rule 15). Examples are Motion to dismiss; a motion for
judgment on the pleadings and a summary judgment

55 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What is the effect of not meeting the requirements on
hearing and notice of the hearing?
A: In that case, the motion will be considered as a mere
scrap of paper which the court has no right to receive and
the trial court has no authority to act upon. Service of a
copy of a motion containing a notice of the time and the
place of hearing of that motion is a mandatory
requirement, and the failure of movants to comply with
these requirements renders the motions fatally defective
(Vette Industrial Sales Co., Inc. vs. Cheng, G.R. Nos. 170232-
170301, Dec. 5, 2006).
particularity to enable him properly to prepare his
responsive pleading. If the pleading is a reply, the motion
must be filed within 10 days from service thereof (Sec. 1,
Rule 12).
Q: What is a bill of particulars?
A: It is a more definite statement consisting of amplification
or more particularized outline of a pleading, and being in
the nature of a more specific allegation of the facts recited
in the pleading. (Sec. 3, Rule 12; Herrera, Vol. I, p. 865, 2007
ed)

Q: What is an ex-parte motion? Q: What is the purpose of a bill of particulars?

A: It is taken or granted at the instance and for the benefit A: Its purpose is to aid in the preparation of a responsive
of one party, and without notice to or contestation by any pleading. An action cannot be dismissed on the ground that
party adversely affected. (Regalado, Remedial Law the complaint is vague or definite (Galeon v. Galeon, G.R.
Compendium, p. 264, 2009 ed) No. L-30380, Feb. 28, 1973).

It is one which does not require that the parties be heard Note: The purpose of the motion is not to enable the movant to
and which the court may act upon without prejudging the prepare for trial. Where the movant is to enable him to prepare for
rights of the other party. This kind of motion is not covered trial, the appropriate remedy is to avail of the discovery procedures
from Rules 23 to 29 and even of a pretrial under Rule 18 (Riano,
by the hearing requirement of the Rules (Sec. 2, Rule 15;
Civil Procedure: A Restatement of the Bar, p. 307, 2009 ed.).
Riano, Civil Procedure: A Restatement for the Bar, p. 79,
2009 ed.).
Q: What are the instances when a bill of particulars is
allowed?
They are usually permissible in procedural matters and also
in situations and under circumstances of emergency; and
A:
an exception to a rule requiring notice is sometimes made
1. When the allegations are indefinite and uncertain that
where notice of the resulting delay might tend to defeat
the nature cannot be understood therefrom;
the objective of the motion (Sarmiento vs. Zaratan, G.R No.
2. When the allegations are so vague that they do not
167471, Feb. 5, 2007). An example is a motion to set the
appear therefrom in what capacity a party sues or
case for a pre-trial
issued;
3. When the allegations are uncertain as to time, place,
PRO-FORMA MOTIONS
quantity, title, person, or any other matter required to
be pleaded with certainty;
It is that which does not comply with the rules on motion
4. When the allegations are faulty in duplication, setting
and is considered as one filed merely to delay the
out two grounds for a single claim;
proceedings (Marikina Development Corp., v. Flojo, G.R. No.
5. When denials are so indefinite and uncertain that it
110801, Dec. 8, 1995). Such motion, if filed, is not entitled
cannot be understood what is denied and what is
to judicial cognizance, and does not stop the running of the
admitted;
period for filing the requisite pleading. (Cruz v. CA, 388
6. Particulars of details of computation of bank account
SCRA 72)
were allowed; technicalities are frowned upon; or
7. Conclusions of law deceit, machination, false
MOTIONS FOR BILL OF PARTICULARS
pretenses, misrepresentations and threats are
conclusions of law and mere allegations thereof without
Q: What are the 3 options available to the defendant upon
a statement of the facts to which such terms have
receipt of the complaint?
references are not sufficient (Herrera, Vol. I, p. 868,
2007 ed)
A:
1. Filing of a motion for bill of particulars
Q: When is a bill of particulars improper?
2. Filing of a motion to dismiss
3. Filing of an answer to the complaint (Riano, Civil
A: It is improper on matters:
Procedure: A Restatement for the Bar, p. 305, 2009
1. specified with particularity;
ed.)
2. within partys knowledge;
3. irrelevant to allegations of complaint; or
Q: When can a motion for a bill of particulars be availed
4. which are more properly ascertainable by discovery
of? (2003 Bar Examination)
(Herrera, Vol. I, p. 869, 2007 ed)
A: Before responding to a pleading, a party may move for a
definite statement or for a bill of particulars of any matter
which is not averred with sufficient definiteness or

UNIVERSITY OF SANTO TOMAS 56

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Q: How may a bill of particulars be filed?
A: It may be filed either through a separate or an amended
pleading (Sec. 3, Rule 12).
Q: Is a motion for bill of particulars available only to a
complaint?
A: No, it is not only directed to a complaint. It is a motion
that applies to any pleading which in the perception of the
movant contains ambiguous allegations (Riano, Civil
Procedure: A Restatement for the Bar, p. 79, 2009 ed.).
Q: What are the requirements for the motion?
A: Aside from the requirements for a motion as set forth in
Rule 15, the motion shall point out:
1. The defects complained of
2. The paragraphs wherein they are contained
3. The details desired (Sec 1, Rule 12)
ACTIONS OF THE COURT
Q: What are the actions taken by the court regarding the
motion for bill of particulars?
A: The court may either:
1. Deny it outright;
2. Grant it outright; or
3. Allow the parties the opportunity to be heard (Sec. 2,
Rule 12).
COMPLIANCE WITH THE ORDER AND EFFECT OF NON-
COMPLIANCE
Q: When must compliance with the order be effected?
A: If the motion is granted, either in whole or in part, it
must be effected within ten (10) days from notice of the
order, unless a different period is fixed by the court (Sec. 3,
Rule 12).
Q: What is the effect of non-compliance with the order of
a bill of particulars?
A:
1. If the order is not obeyed or in case of insufficient
compliance therewith, the court:
a. May order the striking out of the pleading or the
portion thereof to which the order is directed; or
b. Make such order as it may deem just (Sec. 4, Rule
12)
2. If plaintiff is disobedient, his compliant will be stricken
off and dismissed (Sec. 3, Rule 17)
3. If defendant is disobedient, his answer will be stricken
off and his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff (Sec. 4,
Rule 17; Sec. 3, Rule 9).
Q: Within the period for filing a responsive pleading, the
defendant filed a motion for bill of particulars that he set
for hearing on a certain date. However, the defendant was
surprised to find on the date set for hearing that the trial
57
court had already denied the motion on the day of its
filing, stating that the allegations of the complaint were
sufficiently made.
1. Did the judge gravely abuse his discretion in acting
on the motion without waiting for the hearing set for
the motion?
2. If the judge grants the motion and orders the
plaintiff to file and serve the bill of particulars, can
the trial judge dismiss the case if the plaintiff does
not comply with the order? (2008 Bar Question)
A:
1. No. Sec. 2, Rule 12 authorizes the court to either deny
or grant said motion outright or allow the parties an
opportunity to be heard. The court is not mandated to
conduct a hearing.
2. Yes. Sec. 4, Rule 12 authorizes the court to order the
striking out of the pleading affected, hence the
dismissal of the complaint. To the same end is the
provision of Sec. 3, Rule 17 when the plaintiff fails to
comply for no justifiable cause with any order of the
court or with the Rules.
EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING
Q: What is the effect of a motion for bill of particulars on
the period to file a responsive pleading?
A: After service of the bill of particulars or of a more
definite pleading, or after notice of denial of his motion, the
moving party may file his responsive pleading within the
period to which he was entitled at the time of filing his
motion, which shall not be less than five (5) days in any
event (Sec. 5, Rule12).
MOTION TO DISMISS
GROUNDS
Q: May a court motu proprio dismiss a case?
A: GR: No. A motion must be filed by a party thereto.
XPN:
1. Those cases where the court may dismiss a case motu
proprio (i.e. lack of jurisdiction over the subject matter;
litis pendentia; res judicata; and prescription) (Sec. 1,
Rule 9)
2. Failure to prosecute (Sec. 3, Rule 17); and
3. Rule on Summary Procedure (Sec. 4, 1991 Revised Rule
on Summary Procedure).
Q: What are the types of dismissal of actions?
A:
1. Motion to dismiss before answer under Rule 16;
2. Motion to dismiss under Rule 17 (Upon notice by
plaintiff; upon motion of plaintiff; due to fault of
plaintiff);
3. Demurrer to evidence after plaintiff has completed the
presentation of his evidence under Rule 33; and
4. Dismissal of an appeal.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What are the grounds for a motion to dismiss under
Rule 16?
A:
1. That the court has no jurisdiction over the person of the
defending party;
2. That the court has no jurisdiction over the subject matter
of the claim;
3. That venue is improperly laid;
4. That the plaintiff has no legal capacity to sue;
Note: The issue of the plaintiffs lack of legal capacity to sue
cannot be raised for the first time on appeal where the
defendant dealt with the former as a party in the proceeding.
5. That there is another action pending between the same
parties for the same cause;
Note: Litis pendentia requires concurrence of the following
requisites:
a. Identity of the parties or at least such parties representing
the same interest in both actions;
b. Identity of rights asserted and reliefs prayed for, being
founded on the same facts
c. Identity with respect to the two preceding particulars, such
that any judgment that may be rendered in the pending
case would amount to res judicata in the other case (Lim
vs. Vianzon, G.R. No. 137187, Aug.3, 2006).
6. That the cause of action is barred by a prior judgment or
by the statute of limitations;
Note: The requisites of res judicata include:
a. The former judgment must be final
b. The court which rendered it has jurisdiction over the
subject matter and the parties
c. Judgment must be on the merits
d. There must be identity of parties, subject matter and
causes of action
Res judicata as a ground for dismissal is based on two
grounds, namely: (1) public policy and necessity, which
makes it to the interest of the State that there should be
an end to litigation republicae ut sit litium; and (2) the
hardship on the individual of being vexed twice for the
same cause neme debet bis vexari et eadem causa.
(Fels, Inc. vs. Prov. of Batangas, G.R. No. 168557, Feb. 19,
2007).
7. That the pleading asserting the claim states no cause of
action
8. That the claim or demand set forth in the plaintiff's
pleading has been paid, waived, abandoned, or otherwise
extinguished;
9. That the claim on which the action is founded is
unenforceable under the provisions of the statute of
frauds;
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
10. That a condition precedent for filing the claim has not
been complied with (Sec. 1, Rule 16).
Note: The enumeration is exclusive.
GR: Averments in the complaint are deemed hypothetically
admitted upon the filing of a motion to dismiss grounded
on failure to state a cause of action
XPN: A motion to dismiss does not admit the:
a.) truth of mere epithets of fraud;
b.) allegations of legal conclusions;
c.) an erroneous statement of law;
d.) mere inferences or conclusions from facts not stated;
e.) mere conclusions of law;
f.) allegations of fact the falsity of which is subject to
judicial notice
g.) matters of evidence
h.) surplusage and irrelevant matter
i.) scandalous matter inserted merely to insult the opposing
party
j.) legally impossible facts
k.) facts which appear unfounded by a record incorporated
in the pleading, or by a document referred to
l.) general averments contradicted by more specific
averments. (Tan v. Court of Appeals, 356 Phil. 555)
Q: Is laches considered a ground for dismissal of action?
A: Under paragraph (h) of Rule 16, where a claim or
demand set forth in the plaintiffs pleading has been paid,
waived, abandoned, or otherwise extinguished, the same
may be raised in a motion to dismiss. The language of the
rule, particularly on the relation of the words "abandoned"
and "otherwise extinguished" to the phrase "claim or
demand deemed set forth in the plaintiffs pleading" is
broad enough to include within its ambit the defense of bar
by laches. However, the elements of laches must be proved
or disproved through the presentation of evidence by the
parties (Pineda v. Heirs of Eliseo Guevarra, G.R. No.
143188).
Q: When should a motion to dismiss be filed?
A: GR: It should be filed within the time for but before filing
the answer to the complaint or pleading asserting a claim
(Sec. 1, Rule 16).
XPN: Even after an answer has been filed, the defendant
can still file a motion to dismiss, with leave of court, on the
following grounds:
1. lack of jurisdiction over the subject matter of the claim;
2. litis pendentia;
3. res judicata;
4. prescription of action; or
5. where evidence that would constitute a ground for
dismissal is discovered during the trial.
58
 CIVIL PROCEDURE

Q: When can the grounds for motion to dismiss be remedy (Riano, Civil Procedure: A Restatement for the Bar,
pleaded as affirmative defense? p. 319, 2009 ed.).

A: If no motion to dismiss has been filed, any of the EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN
grounds for dismissal provided for in the Rules may be GROUNDS
pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had Q: Can a complaint still be refiled after a motion to dismiss
thereon as if a motion to dismiss had been filed. is granted by the court?

The dismissal of the complaint shall be without prejudice to A: Yes, if the complaint was dismissed on the following
the prosecution in the same or separate action of a grounds and upon compliance with the requirements to
counterclaim pleaded in the answer (Sec. 6, Rule 16). remedy of the defect:
1. That the court has no jurisdiction over the person of the
Q: Is motion to dismiss a responsive pleading? defending party;
2. That the court has no jurisdiction over the subject
A: No, it is not a pleading at all. It is subject to the omnibus matter of the claim;
motion rule since it must raise all objections available at the 3. That venue is improperly laid;
time of the filing thereof. 4. That the plaintiff has no legal capacity to sue;
5. That there is another action pending between the same
RESOLUTION OF MOTION parties for the same cause;
6. That the pleading asserting the claim states no cause of
Q: What are the three courses of action which the trial action;
court may take in resolving a motion to dismiss? 7. That a condition precedent for filing the claim has not
been complied with
A:
1. Dismiss the action or claims; WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES
2. Deny the motion; or
3. Order the amendment of the pleading (Sec. 3, Rule 16). Q: When can the grounds for motion to dismiss be
pleaded as an affirmative defense?
Note: The court shall not defer the resolution of the motion for the
reason that the ground relied upon is not indubitable. In every A: If no motion to dismiss has been filed, any of the
case, the resolution shall state clearly and distinctly the reasons grounds for dismissal provided for in the Rules may be
therefor. (Sec. 3, Rule 16)
pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
thereon as if a motion to dismiss had been filed.
DISMISSED
The dismissal of the complaint shall be without prejudice to
Q: What are the remedies of the plaintiff when the
the prosecution of a counterclaim pleaded in the answer in
complaint is dismissed?
the same or separate action (Sec. 6, Rule 16).
A: If the dismissal is without prejudice, the plaintiff may re-
BAR BY DISMISSAL
file the complaint. If the dismissal is with prejudice, the
plaintiff may file an appeal. (Riano, Civil Procedure: A
Q: What are the instances when a complaint can no longer
Restatement for the Bar, p. 319-320, 2009 ed)
be re-filed after the court grants a motion to dismiss?
REMEDIES OF THE DEFENDANT WHEN THE MOTION IS
A:
DENIED
1. Cause of action is barred by prior judgment (Res
judicata)
Q: What are the remedies of the defendant when the
2. Bar by the statute of limitations (Prescription);
motion is denied?
3. Claim or demand has been paid, waived, abandoned, or
otherwise extinguished; and
A: File an answer within the balance of the period to which
4. Claim is unenforceable under the statute of frauds
he was entitled at the time of serving his motion, but not
less than five (5) days in any event. If the pleading is Note: In the 4 instances mentioned, the remedy would be to
ordered to be amended, he shall file his answer within the appeal the dismissal
period prescribed, unless the court provides a longer
period. If decision is adverse, appeal therefrom and raise as COMPLAINT CAN NO EXCEPTIONS TO
error the denial of the motion to dismiss. If there is grave LONGER BE RE-FILED OMNIBUS
abuse of discretion amounting to lack or excess of MOTION RULE
jurisdiction, certiorari or prohibition may lie under Rule 65. 1. Res judicata 1. Res judicata
If there is unlawful neglect of the performance of an act 2. Prescription 2. Prescription
which the law specifically enjoins, mandamus is the proper 3. Extinguishment of the 3. Litis pendentia
claim 4. Lack of

59 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

4. Unenfocrceability under jurisdiction over

Statute of Frauds the subject matter

DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER

RULE 33

Rule 16 (Motion to Rule 33 (Demurrer to

Dismiss)
Grounded on
preliminary objections
May be filed by any
defending party
against whom a claim
is asserted in the
action
Should be filed within
the time for but prior
to the filing of the
answer of the
defending party to the
pleading assering the
claim
If denied, defendant
answers, or else he
may be declared in
default.
If granted, plaintiff
may appeal or if
subsequent case is not
barred, he may re-file
the case
Evidence)
Based on insufficiency of
evidence
May be filed only by the
defendant against the
complaint of the plaintiff
May be filed only after
the plaintiff has
completed the
presentation of his
evidence (Regalado,
Remedial Law,
Compendium Vol. I, p.
267, 2005 ed)
If denied, defendant may
present evidence.
If granted, but on appeal
the order of dismissal is
reversed, the defendant
loses his right to present
evidence (Riano, Civil
Procedure: A Restatement
for the Bar, p. 399, 2009
ed)

Note: A motion to dismiss generally partakes of the nature of a

demurrer which hypothetically admits the truth of the factual
allegations made in a complaint (Peltan Dev., Inc. v. CA, G.R. No.
117029, Mar. 19, 1997). However, it is only limited to all material
and relevant facts which are well pleaded in the complaint. (De
Dios v. Bristol Laboratories, G.R. No. L-25530, Jan. 29, 1974)

DISMISSAL OF ACTIONS
DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-DISMISSAL RULE; DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT ON EXISTING
COUNTERCLAIM; DISMISSAL DUE TO THE FAULT OF PLAINTIFF

Dismissal upon notice by plaintiff (Sec.
1, Rule 17)
A complaint may be dismissed by the
plaintiff by filing a notice of dismissal at
any time before service of the answer or
of a motion for summary judgment.
Upon such notice being filed, the court
shall issue an order confirming the
dismissal. Unless otherwise stated in the
notice, the dismissal is without
prejudice, except that a notice operates
as 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.
Dismissal upon motion of plaintiff (Sec. Dismissal due to fault of plaintiff (Sec.
2, Rule 17) 3, Rule 17)
After service of the answer or a motion 1. If, for no justifiable cause, the
for summary judgment by the adverse plaintiff fails to appear on the
party. date of the presentation of his
evidence in chief on the
complaint.
2. If the plaintiff fails to
prosecute his action for an
unreasonable length of time
(nolle prosequi).
3. If the plaintiff fails to comply
with the Rules or any order of
the court (Sec. 2, Rule 17).
Note: The plaintiffs failure to appear at the
trial after he has presented his evidence and
rested his case DOES NOT WARRANT the

UNIVERSITY OF SANTO TOMAS 60

2013 GOLDEN NOTES
 CIVIL PROCEDURE

dismissal of the case on the ground of failure

It is a matter of right.
GR: A dismissal without prejudice i.e.
the complaint can be re-filed
XPNs:
1. The notice of dismissal by the
plaintiff provides that the
dismissal is with prejudice; or
2. The plaintiff has once
dismissed in a competent
court an action based on or
including the same claim
(Two-dismissal rule) (Sec. 1,
Rule 17)
3. Even where the notice of
dismissal does not provide
that it is with prejudice but it
is premised on the fact of
payment by the defendant of
the claim involved (Serrano v.
Cabrera, G.R. No. L-5189, Sept.
21, 1953)
to prosecute. It is merely a waiver of his right
to cross-examine and to object to the
admissibility of evidence.
Matter of discretion upon the court. A Matter of evidence.
complaint shall not be dismissed at the
plaintiff's instance save upon approval GR: Dismissal is with prejudice because
of the court and upon such terms and it has an effect of an adjudication on the
conditions as the court deems proper merits.
(Sec. 2, Rule 17).
XPN: Unless otherwise declared by the
GR: It is a dismissal without prejudice, court (Sec. 3, Rule 17)
XPN: If the order of dismissal specifies
that it is with prejudice (Sec. 2, Rule 17)
Note: A class suit shall not be dismissed or
compromised without the approval of the
court.
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.

Note: The dismissal as a matter of right

ceases when an answer or a motion for
summary judgment is SERVED on the plaintiff
and NOT when the answer or motion is FILED
with the court. Thus, if a notice of dismissal is
filed by the plaintiff even after an answer has
been filed in court but before the responsive
pleading has been served on the plaintiff, the
notice of dismissal is STILL A MATTER OF
RIGHT.

Since there is no answer yet filed by the
adverse party, no counterclaim
recoverable
GR: It is without prejudice to the right of
defendant to prosecute his
counterclaim in a separate action.
XPN: Unless within 15 days from notice
of the motion he manifests his
preference to have his counterclaim
resolved in the same action (Sec. 2, Rule
17).
Dismissal upon motion of the defendant
or upon the court's own motion is
without prejudice to the right of the
defendant to prosecute his
counterclaim on the same or separate
action

Q: When does the notice of dismissal become executory?
A: It is executory as of the date the notice is filed by the
plaintiff and not the date the court issues the order
confirming the dismissal because such dismissal by the
plaintiff, if filed before an answer or a motion for summary
judgment has been served upon him, is a matter of right.
(Riano, Civil Procedure: A Restatement for the Bar, p. 263,
2009 ed)
Q: When does the notice of dismissal operate as
adjudication on the merits?
an action based on or including the same claim (two
dismissal rule) (Sec.1, Rule 16).
Q: When does the two-dismissal rule apply?
A: It applies when the plaintiff has:
1. Twice dismissed the actions;
2. Based on or including the same claim; and
3. In a court of competent jurisdiction (Riano, Civil
Procedure: A Restatement for the Bar, p. 265, 2009 ed.).

A: It operates as an adjudication on the merits when filed

by a plaintiff who has once dismissed in a competent court

61 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM OR THIRD-
PARTY COMPLAINT
Q: What is the effect of dismissal upon a counterclaim,
which was already pleaded?
A:
1. If a counterclaim has already been pleaded by the
defendant prior to the service upon him of the plaintiffs
motion to dismiss, and the court grants the said motion
to dismiss, the dismissal shall be limited to the complaint
since it does not carry with it the dismissal of the
counterclaim (Sec. 2, Rule 17)
Note : The dismissal shall be without prejudice to the right of
the defendant to prosecute his counterclaim.
2. The defendant if he so desires may prosecute his
counterclaim either in a separate action or in the same
action. Should he choose to have his counterclaim
resolved in the same action, he must notify the court of
his preference within fifteen (15) days from notice of the
plaintiffs motion to dismiss.
Q: Jeannie filed a suit for collection of P387,000 against
Ron in the RTC of Manila. Aside from alleging payment as
a defense, Ron in his answer, set up counterclaims for
P100,000 as damages and P30,000 as attorneys fees as a
result of the baseless filing of the complainant, as well as
for the P250,000 as the balance of the purchase price of
the 30 units of air conditioners he sold to Jeannie.
Suppose Rons counterclaim for the unpaid balance is
P310,000, what will happen to his counterclaims if the
court dismisses the complaint after holding a preliminary
hearing on Rons affirmative defenses? (2008 Bar
Question)
A: The dismissal of the complaint does not involve the
dismissal of the counterclaims of Ron. The rule on the
matter is clear. The dismissal of the complaintshall be
without prejudice to the prosecution in the same or
separate action of a counterclaim pleaded in the answer
(Sec. 6, Rule 16). The rule does not make a distinction
between a compulsory and a permissive counterclaim. A
similar rule applies under Secs. 2 and 3, Rule 17.
Q: What rule governs the dismissal of counterclaim, cross-
claim, or third-party complaint?
A: The rule on the dismissal of a complaint applies to the
dismissal of any counterclaim, cross-claim, or third-party
claim. A voluntary dismissal by the claimant alone by notice
pursuant to Sec. 1, Rule 17 shall be made before a
responsive pleading or a motion for summary judgment is
served or, if there is none, before the introduction of
evidence at the trial or hearing (Sec. 4, Rule 17).
PRE-TRIAL
It is a procedural device by which the court is called upon,
after the filing of the last pleading, to compel the parties
and their lawyers to appear before it, and negotiate an
amicable settlement or otherwise make a formal statement
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
and embody in a single document the issues of fact and law
involved in the action, and such other matters as may aid in
the prompt disposition of the action. (Herrera, Vol. I, p.
1074, 2007 ed)
Q: When is pre-trial conducted?
A: After the last pleading has been served and filed, it shall
be the duty of the plaintiff to promptly move ex parte that
the case be set for pre-trial (Sec.1, Rule 18).
Particularly, the motion is to be filed within (5) days after
the last pleading joining has been served and filed
(Administrative Circular No. 3-99, Jan. 15, 1999).
Note: If the plaintiff fails to file a motion within the given period,
the branch clerk of court shall issue a notice of pre-trial. (A.M. No.
03-1-09-SC, July 13, 2004)
Q: What do you mean by last pleading?
A: The last permissible pleading that a party can file is the
reply to the answer to the last pleading asserting a claim.
This claim could be the original complaint, the counter-
claim, cross-claim, or third-party complaint.
If an answer is filed and served in response to these claims,
the pleading in response to these answers is the reply
(Sarmiento vs. Juan, 120 SCRA 403) which is to be filed
within ten (10) days from the service of the pleading
responded to (Sec. 6, Rule 11).
Note: Where the last pleading has not yet been served and filed,
the case is not yet ready for pre-trial (Pioneer Insurance & Surety
Corporation vs. Hontanosas, 78 SCRA 439). However, the last
pleading need not be literally construed as one having been
served and filed. For purposes of the pleading, the expiration of the
period for filing the last pleading without it having been served and
filed is sufficient (Riano, Civil Procedure: A Restatement for the Bar,
p. 366, 2009 ed)
NATURE AND PURPOSE
Q: What is the nature of pre-trial?
A: It is mandatory (Sec. 2, Rule 18).
Q: Is a motion for pre-trial subject of a hearing?
A: No, this motion is an ex parte motion. This means that
the motion need not be the subject of a hearing (Riano,
Civil Procedure: A Restatement for the Bar, p. 366, 2009 ed)
Q: What are the purposes of pre-trial?
A: The court shall consider the following purposes:
1. Possibility of an amicable settlement or of a submission
to alternative modes of dispute resolution;
2. Simplification of the issues;
3. Necessity or desirability of amendments to the
pleadings;
4. Possibility of obtaining stipulations or admissions of
facts and of documents to avoid unnecessary proof;
5. Limitation of the number of witnesses;
62
 CIVIL PROCEDURE
6. Advisability of a preliminary reference of issues to a
commissioner;
7. Propriety of rendering judgment on the pleadings, or
summary judgment, or of dismissing the action should a
valid ground therefore be found to exist;
8. Advisability or necessity of suspending the proceedings;
and
9. Such other matters as may aid in the prompt disposition
of the action (Sec. 2, Rule 18).
Q: May the parties directly ask each other questions on
issues?
A: No. During the pre-trial, the judge shall be the one to ask
questions on issues raised by the parties and all questions
or comments by counsel or parties must be directed to the
judge. The purpose of this is to avoid hostilities between
the parties (A.M. No. 03-109-SC, July 13, 2004).
Q: Lilio filed a complaint in the Municipal Trial Court of
Lanuza for the recovery of sum of money against Juan. The
latter filed his answer to the complaint serving a copy
thereof on Lilio. After the filing of the answer of Juan,
whose duty is it to have the case set for pre-trial? Why?
(2001 Bar Question).
A: After the filing of the answer of Juan, the plaintiff has the
duty to promptly move ex parte that the case be set for
pre-trial (Sec. 1, Rule 18). The reason is that it is the plaintiff
who knows when the last pleading has been filed and it is
the plaintiff who has the duty to prosecute.
NOTICE OF PRE-TRIAL
Q: Upon whom shall notice of pre-trial be served?
A: It shall be served on counsel, or on the party who has no
counsel. The counsel served with such notice is charged
with the duty of notifying the party represented by him
(Sec. 3, Rule 18).
Note: Sending a notice of pre-trial stating the date, time and place
of pre-trial is mandatory. Its absence will render the pre-trial and
subsequent proceedings void. This must be so as part of a partys
right to due process. With due notice of the proceedings, the fate
of a party adversely affected will not be judged ex parte and he will
have the opportunity to confront the opposing party. (Agulto v.
Tecson, G.R. No. 145276)
Q: What if there was no notice of pre-trial served?
A: If no notice of pre-trial is served, all the proceedings at
the pre-trial et seq. are null and void. Hence, the absence of
the requisite notice of pre-trial to the defendants counsel
(or to the defendant himself, in case he has no counsel)
nullifies the order allowing the plaintiff to present his
evidence ex parte. (Agulto v. Tecson, supra)
APPEARANCE OF PARTIES; EFFECT OF FAILURE TO APPEAR
Q: Who has the duty to appear at the pre-trial?
A: Both the parties and their counsel (Sec. 4, Rule 18).
Q: What is the effect of a partys failure to appear during
the pre-trial? (1992 Bar Question)
A: Plaintiffs failure to appear during the pre-trial shall be a
cause for dismissal of the action, with prejudice, unless
otherwise ordered by the court. Defendants non-
attendance during the pre-trial shall be a cause to allow the
plaintiff to present evidence ex parte and the court to
render judgment on the basis thereof (Sec. 5, Rule 18).
Note: The plaintiff can appeal from the order of dismissal.
Accordingly, it is only when the order of dismissal is without
prejudice that the remedy is to re-file the complaint (Sec. 1(g), Rule
41.)
The defendant may move for the reconsideration of the order and
if the denial is tainted with grave abuse of discretion, he may file a
petition for certiorari. (Riano, Civil Procedure: A Restatement for
the Bar, p. 368, 2009 ed)
Q: When may non-appearance of a party in a pre-trial
conference be excused?
A:
1. If a valid cause is shown therefore; or
2. If a representative shall appear in his behalf fully
authorized in writing to:
a. enter into an amicable settlement;
b. submit to alternative modes of dispute
resolution; and
c. enter into stipulations or admissions of facts and
of documents (Sec. 4, Rule 18)
Note: The phraseology of the provision suggests that it is not
sufficient for the written authority to give to the representative the
power to enter into one of the matters mentioned in Sec. 4 of Rule
18, as when the only authority granted is to enter into amicable
settlement. The authority must also confer upon the
representative the power to enter into alternative modes of
dispute resolution and stipulations and admissions of fact. An
incomplete authority does not satisfy the requirements of the
Rules and should be deemed the equivalent of having no authority
at all. Further, the mere presentation of such written authority is
not sufficient, but must be complemented by a showing of valid
cause for the non-appearance of the party himself. (Riano, Civil
Procedure: A Restatement for the Bar, p. 369, 2009 ed)
Note: The authority to submit to ADR, which includes arbitration, is
not complied with by a mere special power to compromise since a
special power to compromise does not authorize submission to
arbitration (Art. 1880, NCC). Moreover, the written authority must
be in the form of special power of attorney. Entering into an
amicable settlement for a client who is the principal in the
attorney-client relationship involves entering into a compromise.
Substantive law is explicit: Special power of attorney is necessary
to compromise, and to submit questions to arbitration. Procedural
rules likewise prohibit an attorney to compromise his clients
litigation without a special authority. (Riano, Civil Procedure: A
Restatement for the Bar, p. 369, 2009 ed)
63 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
PRE-TRIAL BRIEF, EFFECT OF FAILURE TO FILE
Q: When should the parties file with the court and serve
on the adverse party their pre-trial briefs?
A: They shall file their respective pre-trial briefs in such a
manner as shall ensure their receipt thereof at least three
(3) days before the date of the pre-trial (Sec. 6, Rule 18).
Q: What should a pre-trial brief contain?
A:
1. A statement of their willingness to enter into amicable
settlement or alternative modes of dispute resolution,
indicating the desired terms thereof;
2. A summary of admitted facts and proposed stipulation
of facts;
3. The issues to be tried or resolved;
4. The documents or exhibits to be presented, stating the
purpose thereof;
5. A manifestation of their having availed or their
intention to avail themselves of discovery procedures or
referral to commissioners; and
6. The number and names of the witnesses, and the
substance of their respective testimonies and the
approximate number of hours that will be required by
the parties for the presentation of their respective
witnesses (Sec. 6, Rule 18).
Q: What is the legal effect of representations and
statements in the pre-trial brief?
A: The parties are bound by the representations and
statements in their pre-trial. Hence, such representations
and statements are in the nature of judicial admissions in
relation to Sec. 4 Rule 129 of the Rules of Court.
Q: What is the effect of failure to file a pre-trial brief?
A: It shall have the same effect as failure to appear at the
pre-trial (A.M. No. 03-1-09-SC, July 13, 2004). Hence, if it is
the plaintiff who fails to file a pre-trial brief, such failure
shall be a cause for dismissal of the action. If it is the
defendant who fails to do so, such failure shall be a cause
to allow the plaintiff to present his evidence ex parte.
Note: The dismissal of the complaint for failure to file pre-trial brief
is discretionary on the part of the trial court. (Ramos v. Spouses
Lavendia, G.R. No. 176706, Oct. 8, 2008)
Q: Should there be a termination of pre-trial for failure to
settle on the ground that the parties cannot settle the
case?
A: None. The judge should not allow the termination of a
pre-trial simply because of the manifestation of the parties
that they cannot settle the case. Instead, he should expose
the parties to the advantages of pre-trial. He must also be
mindful that there are important aspects of the pre-trial
that ought to be taken up to expedite the disposition of the
case (Ramos vs. Spouses Lavendia, G.R No. 176706; Riano,
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Civil Procedure: A Restatement for the Bar, p. 371, 2009
ed.).
If all efforts to settle fail, the trial judge shall endeavor to
achieve the other purposes of a pre-trial like, among
others, obtaining admissions or stipulations of fact. To
obtain admissions, the judge shall ask the parties to submit
whatever depositions have been taken under Rule 23, the
answers to written interrogatories under Rule 25 and the
answers to request for admissions by the adverse party
under Rule 26. He may also require the production of
documents or things requested by a party under Rule 37
and the results of the physical and mental examination of
persons under Rule 28 (A.M. No. 03-1-09-SC, July 13, 2004).
Q: Explain the One Day Examination of Witness Rule and
Most Important Witness Rule.
A: In the pre-trial, the court shall ask the parties to agree on
the specific dates for continuous trial, adhere to the case
flow chart determined by the court and use the time frame
for each stage setting the trial dates. Adherence to the One
Day Examination of Witness Rule shall be required where
the witness shall be fully examined in one (1) day only,
subject to the courts discretion during the trial on wheter
or not to extend the examination for justifiable reasons.
Where no settlement has been effected, the court shall
follow the Most Important Witness Rule, where the court
shall determine the most important witnesses and limit the
number of such witnesses and require the parties and/or
counsels to submit to the branch clerk of court the names,
addresses and contact numbers of the witnesses to be
summoned by subpoena. Note however, that the court may
also refer the case to a trial by commissioner under Rule 32
(A.M. No. 03-109-SC, July 13, 2004).
Q: What is a pre-trial order?
A: An order issued by the court upon termination of the
pre-trial. Under A.M. No. 03-109-SC, the pre-trial order shall
be issued within ten (10) days after termination of the pre-
trial.
Q: What are the contents of a pre-trial order?
A: The order recites in detail the following:
1. The matters taken up in the conference;
2. The actions taken thereon;
3. The amendments allowed to the pleadings;
4. The agreements or admissions made by the parties as
to any matters considered.
Note: These admissions embodied in the pre-trial order are binding
upon the parties and conclusive upon them.
64
 CIVIL PROCEDURE
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE AND PRE-TRIAL IN CRIMINAL CASE
Pre-trial in civil case
It is set when the plaintiff moves ex parte to set the case for
pre-trial (Sec. 1, Rule 18)
The motion to set the case for pre-trial is made after the last
pleading has been served and filed (Sec. 1, Rule 18)
It considers the possibility of an amicable settlement as an
important objective (Sec 2[a], Rule 118).
Requires the proceeding during the preliminary conference to
be recorded in the minutes of preliminary conference to be trial conference shall be reduced in writing and signed by both
signed by both parties and/or counsel. The rule allows either
the party or his counsel to sign the minutes (A.M. No. 03-1-09-
SC).
Sanctions for non-appearance in a pre-trial are imposed upon
the plaintiff and the defendant in a civil case (Sec. 4, Rule 18).
Specifically required to be submitted in a civil case (Sec. 6, Rule
18)
Alternative Dispute Resolution Act of 2004 (Republic Act
9285) and Special Rules of Court on Alternative Dispute
Resolution (A.M. No. 07-11-08-SC)
Q: What are the other modes of solving disputes aside
from an adversarial proceeding before the court?
A:
1. Alternative Dispute Resolution (ADR)
a. Arbitration
i. Domestic Arbitration
ii. Construction Disputes
iii. International Commercial Arbitration
b. Mediation
c. Conciliation
d. Early Neutral Evaluation
e. Mini-trial
2. Court-Annexed Mediation
3. Appellate Court Mediation
4. Judicial Dispute Resolution
5. Katarungang Pambarangay Law
Q: What is the State policy in alternative dispute
resolution?
A: The state policy in ADR is to actively promote party
autonomy in the resolution of disputes or the freedom of
the parties to make their own arrangements in resolving
their disputes. (Sec. 2, R.A. 9285: The Alternative Dispute
Resolution Act of 2004)
Q: What is the Constitutional basis of alternative dispute
resolution?
A: Par. 2, Sec. 3, Art. XIII, 1987 of the Constitution states
that the State shall promote the principle of shared
responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes,
including conciliation, and shall enforce their mutual
compliance therewith to foster industrial peace.
65
Pre-trial in criminal case
It is ordered by the court and no motion to set the case for pre-
trial is required from either the prosecution or the defense (Sec.
1, Rule 118,).
The pre-trial is ordered by the court after arraignment and
within thirty (30) days from the date the court acquires
jurisdiction over the person of the accused. (Sec. 1, Rule 118,).
It does not include the possibility of amicable settlement of
criminal liability as one of its purposes (Sec. 1, Rule 118).
All agreements or admissions made or entered during the pre-
the accused and counsel, otherwise, they cannot be used
against the accused (Sec. 2, Rule 18)
The sanctions in a criminal case are imposed upon the counsel
for the accused or the prosecutor (Sec. 3, Rule 18)
Not specifically required in a criminal case.
Q: What is an alternative dispute resolution system?
A: It means any process or procedure used to resolve a
dispute or controversy, other than by adjudication of a
presiding judge of a court or an officer of a government
agency in which a neutral third party participates to assist
in the resolution of issues, which includes arbitration,
mediation, conciliation, early neutral evaluation, mini-trial,
or any combination thereof. (Sec.3a of R.A. No. 9285)
Note: Its purposes are to:
1. Actively promote party autonomy in the resolution of disputes
or the freedom of the parties to make their own arrangements
to resolve their disputes;
2. Achieve speedy and impartial justice; and
3. Unclog court dockets.
Q: What are the cases in which the ADR law does not
apply?
A:
1. Labor disputes covered by the Labor Code
2. The civil status of persons
3. The validity of marriage
4. Any ground for legal separation
5. The jurisdiction of courts
6. Future legitime
7. Criminal liability
8. Those which by law cannot be compromised
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Distinguish the different modes of ADR

A:
Arbitration Mediation Conciliation Early Neutral Mini-Trial
Evaluation
Definition
It is a voluntary It is a voluntary A process whereby It is a process It is a structured
dispute resolution process in which an the parties request a wherein parties dispute resolution
process in which impartial and third person or and their lawyers method in which
one or more neutral third party persons to assist are brought the merits of a case
arbitrators, (mediator), selected them in their together early in a are argued before a
appointed in by the disputing attempt to reach an pre-trial phase to panel comprising of
accordance with parties, facilitates amicable settlement present senior decision
the agreement of communication and of their dispute summaries of their makers with or
the parties, or rules negotiation, and arising out of or cases and receive without the
promulgated assists the parties in relating to a a non-binding presence of a
pursuant to R.A. reaching a contractual or other assessment by an neutral third person
9285, resolve a voluntary legal relationship experienced, after which the
dispute by agreement (Art. 1 [3], neutral person, parties seek a
rendering an award. regarding a dispute. UNCITRAL Model with expertise in negotiated
It results in the Law on Conciliation) the subject or the settlement.
adjudication of a substance of the
dispute. dispute.
Functions
Arbitrator acts as Mediator does not A conciliator Early neutral Panel renders a
out-of-court judge render an award participates only in Evaluator assesses decision based on
and settles the but only arranges the preliminary or reviews the the merits of the
dispute extra- the facts to be steps of facilitating issues submitted arguments of the
judicially. negotiated so that discussion between by the parties and parties.
parties can come to the parties and tenders its
He makes a a compromise helps them frame evaluation which is
determination of agreement. the issues for non-binding.
the facts and discussion.
applies the law to He assists the
those facts to parties in reaching a
resolve a dispute mutually agreeable
independently of settlement of their
the actual result dispute through
desired by the direct negotiations.
parties. He actively
participates in
resolving the
dispute, and then
gives an opinion.
Effect of decision
The award may be The decision or He does not render a The assessment is It need not be
final and binding if opinion is not decision. The dispute not binding upon confirmed by the
so agreed by the binding on the is left to be settled the parties. courts.
parties and to be parties. It is by the parties
executory, it must recommendatory in themselves.
first be confirmed nature. The
by the RTC. mediator merely
suggests a solution
to the dispute.

UNIVERSITY OF SANTO TOMAS 66

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Arbitration
Q: What is the form of an arbitration agreement?
A: A contract to arbitrate a controversy thereafter arising
between the parties, as well as a submission to arbitrate an
existing controversy shall be in writing and subscribed by
the party sought to be charged, or by his lawful agent (Sec.
4, R.A. 876).
Q: What is the remedy of a party to an action filed in court
in violation of an arbitration agreement?
A: A party to a pending action filed in violation of the
arbitration agreement, whether contained in an arbitration
clause or in a submission agreement, may request the court
to refer the parties to arbitration in accordance with such
agreement. (Rule 4.1)
Q: When must such request be made to the court?
A: If the arbitration agreement exists (arbitration clause)
before the action is filed, the request for referral shall be
made not later than the pre-trial conference. After the pre-
trial conference, the court will only act upon the request for
referral if it is made with the agreement of all parties to the
case. If there is no existing arbitration agreement at the
time the case is filed but the parties subsequently enter
into an arbitration agreement (submission agreement),
they may request the court to refer their dispute to
arbitration at any time during the proceedings. (Rule 4.2)
Q: May an arbitral award be made upon issues already
submitted before the court?
A: Yes. Despite the pendency of the action referred to in
Rule 4.1, above, arbitral proceedings may nevertheless be
commenced or continued, and an award may be made,
while the action is pending before the court. (Rule 4.8)
Q: What are the requirements for the court to refer the
dispute to arbitration?
A: The request for referral shall be in the form of a motion,
which shall state that the dispute is covered by an
arbitration agreement. Apart from other submissions, the
movant shall attach to his motion an authentic copy of the
arbitration agreement. The request shall contain a notice of
hearing addressed to all parties specifying the date and
time when it would be heard. The party making the request
shall serve it upon the respondent to give him the
opportunity to file a comment or opposition within 15 days
from receipt (Rule 4.3)
Q: What are the grounds for opposition?
A: (a) there is no agreement to refer the dispute to
arbitration; and/or (b) the agreement is null and void;
and/or (c) the subject-matter of the dispute is not capable
of settlement or resolution by arbitration in accordance
with Section 6 of the ADR Act. (Rule 4.4.)
67
Q: What are the instances which will not prevent the court
from referring the parties to arbitration?
A: The court shall not decline to refer some or all of the
parties to arbitration for any of the following reasons:
a. Not all of the disputes subject of the civil action may be
referred to arbitration;
b. Not all of the parties to the civil action are bound by the
arbitration agreement and referral to arbitration would
result in multiplicity of suits;
c. The issues raised in the civil action could be speedily and
efficiently resolved in its entirety by the court rather than in
arbitration;
d. Referral to arbitration does not appear to be the most
prudent action; or
e. The stay of the action would prejudice the rights of the
parties to the civil action who are not bound by the
arbitration agreement.
The court may, however, issue an order directing the
inclusion in arbitration of those parties who are not bound
by the arbitration agreement but who agree to such
inclusion provided those originally bound by it do not
object to their inclusion. (Rule 4.7)
Q: Is summons required to be served under the Special
ADR Rules?
A: No. The technical rules on service of summons do not
apply to the proceedings under the Special ADR Rules. A
court acquires authority to act on the petition or motion
upon proof of jurisdictional facts, i.e., that the respondent
was furnished a copy of the petition and the notice of
hearing. The burden of showing that a copy of the petition
and the notice of hearing were served on the respondent
rests on the petitioner. In instances where the respondent,
whether a natural or a juridical person, was not personally
served with a copy of the petition and notice of hearing in
the proceedings, the method of service resorted to must be
such as to reasonably ensure receipt thereof by the
respondent to satisfy the requirement of due process. (Rule
1.9)
Q: What is the remedy of the aggrieved party after the
dispute is referred by the court to arbitration? How about
denial of the request for arbitration?
A: An order referring the dispute to arbitration shall be
immediately executory and shall not be subject to a motion
for reconsideration, appeal or petition for certiorari. An
order denying the request to refer the dispute to
arbitration shall not be subject to an appeal, but may be the
subject of a motion for reconsideration and/or a petition
for certiorari. (Rule 4.6)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What is the remedy for the failure or refusal of another
to comply with the arbitration agreement?
A: The party may petition the court for an order directing
that such arbitration proceed in the manner provided for in
such agreement (Sec. 6, R.A. 876).
Q: What is the effect of the petition filed before
commencement of the arbitration proceeding?
A: Despite the pendency of the petition, the arbitral
proceedings may nevertheless be commenced and
continued until the rendition of an award, while the issue is
pending before the court (Rule 3.3, A.M. No. 07-11-08-SC).
Q: What is the effect of the petition filed after
commencement of the arbitration proceeding?
A: Judicial recourse to the court shall not prevent the
arbitral tribunal from continuing the proceedings and
rendering its award. The court shall not enjoin the
arbitration proceedings during the pendency of the petition
(Rule 3.18(B), A.M. No. 07-11-08-SC).
Should the ruling of the arbitral tribunal declining its
jurisdiction be reversed by the court, the parties shall be
free to replace the arbitrators or anyone of them in
accordance with the rules that were applicable for the
appointment of arbitrator sought to be replaced (Rule 3.12,
A.M. No. 07-11-08-SC).
Q: What is the effect of the rendition of an arbitral award
before court decides on the petition from the arbitral
tribunals preliminary ruling affirming its jurisdiction?
A: The petition shall become ipso facto moot and academic
and shall be dismissed by the RTC however, the dismissal
shall be without prejudice to the right of the aggrieved
party to raise the same issue in a timely petition to vacate
or set aside the award (Rule 3.21, A.M. No. 07-11-08-SC).
Q: Is an order of the court referring the dispute to
arbitration appealable?
A: No. An order referring the dispute to arbitration shall be
immediately executory and shall not be subject to a motion
for reconsideration, appeal or petition for certiorari.
However, an order denying the request to refer the dispute
to arbitration shall not be subject to an appeal, but may be
the subject of a motion for reconsideration and/or a
petition for certiorari (Rule 4.6, A.M. No. 07-11-08-SC).
Q: What is the principle of competence competence?
A: The Special ADR Rules recognize the principle of
competence-competence, which means that the arbitral
tribunal may initially rule on its own jurisdiction, including
any objections with respect to the existence or validity of
the arbitration agreement or any condition precedent to
the filing of a request for arbitration. When a court is asked
to rule upon issue/s affecting the competence or
jurisdiction of an arbitral tribunal in a dispute brought
before it, either before or after the arbitral tribunal is
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
constituted, the court must exercise judicial restraint and
defer to the competence or jurisdiction of the arbitral
tribunal by allowing the arbitral tribunal the first
opportunity to rule upon such issues. Unless the court,
pursuant to a prima facie determination, that the
arbitration agreement is null and void, inoperative or
incapable of being performed, the court must suspend the
action before it and refer the parties to arbitration pursuant
to the arbitration agreement. (Rule 2.2; Rule 2.4)
Q: What is the principle of separability of the arbitration
clause?
A: The Special ADR Rules recognize the principle of
separability of the arbitration clause, which means that said
clause shall be treated as an agreement independent of the
other terms of the contract of which it forms part. A
decision that the contract is null and void shall not entail
ipso jure the invalidity of the arbitration clause. (Rule 2.2)
Q: Korea Technologies (KOGIES) entered into a contract
with PGSMC for the supply and installation of LPG
manufacturing plant. The contact was perfected in the
Philippines. After the installation of the plant, initial
operation could not be conducted due to financial
difficulties. PGSMC issued checks for payment but was
dishonored. Thus KOGIES threatened to file a criminal case
against the latter. Hence, PGSMC unilaterally cancelled
their contract. KOGIES filed a Complaint for Specific
Performance against PGSMC alleging that it violated Art.
15 of their contact by unilaterally rescinding the contract
without resorting to arbitration. The arbitration clause in
their contract provides: The award rendered by the
arbitrators shall be final and binding upon both parties
concerned. Is the stipulation valid?
A: Yes. The law of the place where the contract is made
governs. Therefore, our laws ought to govern. Nonetheless,
Art. 2044 of the Civil Code sanctions the validity of mutually
agreed arbitral clause or the finality and binding effect of an
arbitral award. Art. 2044 provides, Any stipulation that the
arbitrators award or decision shall be final is valid, without
prejudice to Arts. 2038, 2039 and 2040.
Arts. 2038, 2039 and 2040 above cited refer to instances
where a compromise or an arbitral award, as applied to Art.
2044, may be voided, rescinded, or annulled, but these
would not denigrate the finality of the arbitral award. The
arbitration clause has not been shown to be contrary to any
law, morals, or public policy. There is no reason why the
arbitration clause should not be respected and complied
with by both parties. There are no vices of consent shown
in this case (Korea Technologies Co., Ltd. v. Lerma, G.R. No.
143581, Jan. 7, 2008).
Q: Are foreign arbitral awards, while mutually stipulated
by parties to be final and binding, immediately
enforceable?
A: No. Foreign arbitral awards cannot be implemented
immediately. Article 36 of the UNCITRAL Model Law
specifies the grounds for an arbitral award to be recognized
by a competent court. It can be gleaned that the concept of
68
 CIVIL PROCEDURE

a final and binding arbitral award is similar to judgments or
awards given by some of our quasi- judicial bodies, like the
NLRC, whose final judgments are stipulated to be final and
binding, but not immediately executory in the sense that
they may still be judicially reviewed, upon the instance of
any party. Therefore, the final foreign arbitral awards are
similarly situated in that they need first to be confirmed by
the RTC. Such arbitration clause does not operate to oust
the court of its jurisdiction (Korea Technologies Ltd. v.
Lerma, G.R. No. 143581, Jan. 7, 2008).
Q: What is the period for filing a petition for the
confirmation, modification or vacation of an award?
A: The periods for filing a petition shall be:
1. For confirmation at any time after the lapse of thirty
(30) days from receipt by the petitioner of the arbitral
award, he may petition the court to confirm that
award;
described in Articles 2038, 2039 and 2040 applicable to
both compromises and arbitrations are obtaining, the
arbitrators award may be annulled or rescinded.
Consequently, the decision of the Arbitration Committee is
subject to judicial review.
The proper recourse of petitioner from the denial of its
motion for reconsideration by the Arbitration Committee is
to file either a motion to vacate the arbitral award with the
RTC, a petition for review with the CA under Rule 43, or a
petition for certiorari under Rule 65. The RTC will only have
jurisdiction over an arbitral award in cases of motions to
vacate the same. Otherwise, the CA retains jurisdiction in
petitions for review or in petitions for certiorari (Insular
Savings Bank v. Far East Bank and Trust Company, G.R. No.
141818, June 22, 2006).

Note: A petition to confirm the arbitral award may be filed, in

opposition to a petition to vacate the arbitral award, at any
time after the petition to vacate such arbitral award is filed.
The dismissal of the petition to vacate the arbitral award for
having been filed beyond the reglementary period shall not
result in the dismissal of the petition for the confirmation of
such arbitral award.

2. For correction or modification not later than thirty

(30) days from receipt of the arbitral award, a party
may petition the court to correct/modify that award;

Note: A petition to correct an arbitral award may be included

as part of a petition to confirm the arbitral award or as a
petition to confirm that award. (Rule 11.2, A.M. No. 07-11-08-
SC).

3. For vacation not later than thirty (30) days from

receipt of the arbitral award, a party may petition the
court to vacate that award.

Q: How may an arbitral award be confirmed?

A: At any time within 1 month after the arbitral award is

made, any party to the controversy subject of arbitration
may file a motion to the court having jurisdiction for an
order confirming the award. The court must grant such
order unless the award is vacated, modified or corrected.
Notice of such motion must be served upon the adverse
party or his attorney (Sec. 23, R.A. 876).

Note: Unless a ground to vacate an arbitral award under Rule 11.5

above is fully established, the court shall confirm the award. An
arbitral award shall enjoy the presumption that it was made and
released in due course of arbitration and is subject to confirmation
by the court. In resolving the petition or petition in opposition
thereto in accordance with these Special ADR Rules, the court shall
either confirm or vacate the arbitral award. The court shall not
disturb the arbitral tribunals determination of facts and/or
interpretation of law (Rule 11.9, A.M. No. 07-11-08-SC).
Q: Discuss the remedies against arbitral awards.

A: Under Article 2044 of the New Civil Code, the validity of

any stipulation on the finality of the arbitrators award or
decision is recognized. However, where the conditions

69 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Distinguish the grounds for vacating an arbitral award from the grounds for modifying or correcting an arbitral award.
A:
Grounds for Vacating an Arbitral Award
1. The award was procured by corruption, fraud, or
other undue means;
2. There was evident partiality or corruption in the
arbitrators or any of them;
3. The arbitrators were guilty of misconduct in
refusing to postpone the hearing upon sufficient
cause shown, or in refusing to hear evidence
pertinent and material to the controversy;
4. One or more of the arbitrators was disqualified to
act as such and willfully refrained from disclosing
such disqualifications or of any other misbehavior
by which the rights of any party have been
materially prejudiced;
5. The arbitrators exceeded their powers, or so
imperfectly executed them, that a mutual, final and
definite award upon the subject matter submitted
to them was not made (Sec. 24, R.A. 876).
6. The arbitration agreement did not exist, or is invalid
for any ground for revocation of a contract, or is
otherwise unenforceable; or
7. A party to arbitration is a minor or a person
judicially declared to be incompetent (Rule 11.4A,
A.M. No. 07-11-08-SC).
Note: In deciding the petition to vacate the arbitral
award, the court shall disregard any other ground than
those enumerated above (Rule 11.4A, A.M. No. 07-11-
08-SC).
International Commercial Arbitration
Q: What is commercial arbitration?
A: A commercial arbitration is that which covers matter
arising from all relationships of a commercial nature,
whether contractual or not. It includes any trade
transaction for the supply or exchange of goods or services,
distribution agreements, construction of works, commercial
representation or agency, factoring, leasing, consulting,
engineering, licensing, investment, financing, banking,
insurance, joint venture and other forms of industrial or
business cooperation, carriage of goods or passengers by
air, sea, rail or road (Sec. 21, R.A. 9285).
Q: When is arbitration considered international?
A: Arbitration is international if:
1. the parties to an arbitration agreement have, at the
time of the conclusion of that agreement, their places
of business in different States; or
2. one of the following places is situated outside the
State in which the parties have their places of
business:
a. the place of arbitration if determined in, or
pursuant to, the arbitration agreement;
b. any place where a substantial part of the
obligations of the commercial relationship is
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Grounds for Modifying or Correcting an Arbitral
Award
1. There was an evident miscalculation of figures,
or an evident mistake in the description of any
person, thing or property referred to in the
award;
2. The arbitrators have awarded upon a matter not
submitted to them, not affecting the merits of
the decision upon the matter submitted;
3. The award is imperfect in a matter of form not
affecting the merits of the controversy, and if it
had been a commissioner's report, the defect
could have been amended or disregarded by the
court;
4. To effect the intent of the award and promote
justice between the parties (Sec. 25, R.A. 876); or
5. Where the arbitrators have omitted to resolve
an issue submitted for resolution (Rule 11.4B,
A.M. No. 07-11-08-SC).
to be performed or the place with which the
subject-matter of the dispute is most closely
connected; or
c. the parties have expressly agreed that the
subject-matter of the arbitration relates to
more than one (1) country [Art. 1(3),
UNCITRAL Model Law].
Note: If a party has more than one place of business, the place of
business is that which has the closest relationship to the arbitration
agreement; and if a party does not have a place of business,
reference is to be made to his habitual residence (Art. 1(4),
UNCITRAL Model Law).
Q: The arbitration clause in the contract stipulated that
the arbitration must be done in Seoul, Korea, in
accordance with the Commercial Arbitration Rules of
Korea Arbitration Board, is such stipulation contrary to
public policy?
A: The arbitration clause which stipulates that the
arbitration must be done in Seoul Korea in accordance with
the Commercial Arbitration Rules of the KCAB is not
contrary to public policy. The Court has sanctioned the
validity of arbitration clauses in a catena of cases. In case a
foreign arbitral body is chosen by the parties, the
arbitration rules of our domestic arbitration bodies would
not be applied. As signatory to the Arbitration Rules of the
70
 CIVIL PROCEDURE
UNCITRAL Model Law on International Commercial
Arbitration of the UNCITRAL in the New York Convention,
the Philippines committed itself to be bound by the Model
Law. In doing so, we have incorporated the Model Law in
R.A. 9285 (ADR Act of 2004). A pertinent feature of R.A.
9285, applying and incorporating the UNCITRAL Model Law,
is Sec. 24 which provides that the RTC does not have
jurisdiction over disputes that are properly the subject of
arbitration pursuant to an arbitration clause and mandates
the referral to arbitration of such cases (Korea Technologies
Ltd v. Lerma, G.R. No. 143581, Jan. 7, 2008).
Q: Can a foreign arbitral award be enforced in the
Philippines under the Rules of Court on the recognition
and enforcement of foreign judgments (Rule 39)? Explain
briefly. (2007 Bar Question)
A: No. Foreign arbitral awards are not enforced as foreign
court judgments. They may be enforced under Sec. 44 of
R.A. 9285 (ADR Act of 2004). Under the said law, the United
Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (1958 New York Convention) shall
govern the recognition and enforcement of arbitral awards
covered by the said Convention. The party relying on the
award or applying for its enforcement shall file with the RTC
the original or authenticated copy of the award and the
arbitration agreement. The applicant shall establish that
the country in which foreign arbitration award was made is
a party to the New York Convention.
A foreign arbitral award, when confirmed by a court of a
foreign country, shall be recognized and enforced as a
foreign arbitral award and not as a judgment of a foreign
court. A foreign arbitral award, when confirmed by the RTC,
shall be enforced in the same manner as final and
executory decisions of courts of law of the Philippines (Sec.
44, R.A. 9285).
Note: The recognition and enforcement of a foreign arbitral award
shall be governed by the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the "New
York Convention") and the Special ADR Rules. The court may, upon
grounds of comity and reciprocity, recognize and enforce a foreign
arbitral award made in a country that is not a signatory to the New
York Convention as if it were a Convention Award (Rule 13.4, A.M.
No. 07-11-08-SC).
Q: When may a foreign arbitral award be refused
recognition and enforcement in our jurisdiction?
A: At the request of the party against whom it is invoked, a
foreign arbitral award may be refused recognition or
enforcement if that party furnishes proof that:
1. a party to the arbitration agreement was under some
incapacity;
2. the said agreement is not valid under the law to which
the parties have subjected it or, failing any indication
thereon, under the law of the country where the award
was made;
3. the party against whom the award is invoked was not
given proper notice of the appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable
to present his case;
71
4. the award deals with a dispute not contemplated by or
not falling within the terms of the submission to
arbitration, or it contains decisions on matters beyond
the scope of the submission to arbitration;
5. the composition of the arbitral tribunal or the arbitral
procedure was not in accordance with the agreement of
the parties or, failing such agreement, was not in
accordance with the law of the country where the
arbitration took place;
6. the award has not yet become binding on the parties or
has been set aside or suspended by a court of the
country in which, or under the law of which, that award
was made;
7. the subject matter of the dispute is not capable of
settlement by arbitration under our laws or the
recognition or enforcement of the award would be
contrary to our public policy. Any other ground raised
shall be disregarded by the RTC (Art. 36, UNCITRAL
Model Law); or
8. the recognition or enforcement of the award would be
contrary to public policy (Rule 12.4, A.M. No. 07-11-08-
SC).
Note: A Philippine court shall not set aside a foreign arbitral award
but may refuse its recognition and enforcement on any or all of the
grounds above (Rule 13.5, A.M. No. 07-11-08-SC).
Mediation
Q: What is mediation?
A: It is a voluntary process in which a mediator, selected by
the disputing parties, facilitates communication and
negotiation, and assists the parties in reaching a voluntary
agreement regarding a dispute (Sec. 3q, R.A. 9285)
Q: May a party seek the assistance of a lawyer in
mediation proceedings?
A: Yes. A party may designate a lawyer or any other person
to provide assistance in the mediation. A waiver of this
right shall be made in writing by the party waiving it. A
waiver of participation or legal representation may be
rescinded at any time (Sec. 14, R.A. 9285).
Q: How is a mediated settlement agreement enforced?
A: After a successful mediation,
1. The mediated settlement agreement shall be prepared
by the parties through the assistance of their
respective counsel, if any, and by the mediator.
2. Parties and their respective counsels, if any shall sign
the settlement agreement. The mediator shall certify
that he/she explained the contents of the settlement
agreement to the parties in a language known to
them.
3. If the parties so desire, they may deposit such
settlement agreement with the appropriate Clerk of
Court of the RTC of the place where one of the parties
resides. Where there is a need to enforce the
settlement agreement, a petition may be filed by any
of the parties with the same court, in which case the
court shall proceed summarily to hear the petition, in
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

accordance with such rules of procedure as may be REQUISITES FOR INTERVENTION

promulgated by the SC.
Note: The parties may agree in the settlement agreement that the
mediator shall become a sole arbitrator for the dispute and shall
treat the settlement agreement as an arbitral award which shall be
subject to enforcement under R.A. 876 Arbitration Law
notwithstanding the provisions of E.O. No. 1008 for mediated
dispute outside of the CIAC (Sec. 17, R.A. 9285).
1. There must be a motion for intervention filed before
rendition of judgment by the trial court (Sec. 1, Rule
19);
Note: A motion is necessary because leave of court is
required before a person may be allowed to intervene (Sec 1,
Rule 19).

INTERVENTION 2. The movant must show in his motion he

It is a legal proceeding by which a third person is permitted
by the court to become a party by intervening in a pending
action after meeting the conditions and requirement set by
the Rules of Court. This person who intervenes is one who
is not originally impleaded in the action (First Philippine
Holdings Corp. v. Sandiganbayan, G.R. No. 88345, Feb. 1,
1996).
Note: Intervention is merely optional and permissive (Mabayo
Farms, Inc. vs. Court of Appeals, G.R. No. 140058, August 1, 2002).
Hence, the court has the full measure of discretion in permitting or
disallowing the same (Yau v. Manila Banking Corporation, G.R. No.
126731, July 11, 2002). In claiming the right to intervene, the
intervenor must comply with the requirements laid down by Rule
19 of the Rules of Court. (Office of the Ombudsman v. Samaniego,
G.R. No. 175573, September 11, 2008)
Q: Distinguish intervention from nterpleader
a. Has an immediate legal interest in the matter in
controversy, not merely contingent;
b. Has legal interest in the success of either of the
parties in the action;
c. Has legal interest against both parties; or
d. Is so situated as to be adversely affected by a
distribution or other disposition of the property in
the custody of the court or of an officer thereof
(Sec. 1, Rule 19);
3. Intervention will not unduly delay or prejudice the
adjudication of the rights of original parties; and
4. Intervenors rights may not be fully protected in a
separate proceeding (Mabayo Farms, Inc. vs. CA, GR
140058, Aug. 1, 2002).
Q: Is intervention an independent proceeding? (2000 Bar
Question)

A: A: No. It is not an independent proceeding but is ancillary

Intervention
An ancillary action
Proper when the
intervenor has legal
interest in the matter of
litigation or success of
either of the parties, or
interest against both or
may be adversely
affected by
distribution/disposition
of property in the
custody of the court
Defendants are already
original parties to the
pending suit
Interpleader and supplemental to an existing litigation. Its purpose is to
An original action enable a stranger to an action to become a party to protect
Presupposes that the his interest (Santiago Land Development Corporation vs.
plaintiff has no interest Court of Appeals, 267 SCRA 79).
in the subject matter of
the action or has an Note: Denial of motion to intervene does not constitute res
interest therein, which judicata. The remedy of intervenor is to file a separate action.
in whole or in part, is
not disputed by the TIME TO INTERVENE
other parties to the
action Q: When is the time to intervene?
A: The motion to intervene may be filed any time before
Defendants are being rendition of judgment by the trial court. A copy of the
sued precisely to pleading-in-intervention shall be attached to the motion
implead them and served on the original parties (Sec. 2, Rule 19).
(Regalado, Vol. I, p.
315, 2005 ed.) Q: What is the procedure for intervention?

Q: In approving a motion to intervene, what are the A:

factors that the Court shall consider? 1. The intervenor shall file a motion for intervention
attaching thereto his pleading-in-intervention. The
A: following are the pleadings to be filed depending upon
1. Whether or not the intervention will unduly delay or the purpose of the intervention:
prejudice the adjudication of the rights of the original a. If the purpose is to assert a claim against either or
parties; and all of the original parties the pleading shall be
2. Whether or not the intervenors right may be duly called a complaint-in-intervention.
protected in a separate proceeding (Albano, Remedial b. If the pleading seek to unite with the defending
Law Reviewer, p. 345 2010 ed.). party in resisting a claim against the latter file
an answer-in-intervention (Sec 3, Rule 19).
2. The motion and the pleading shall be served upon
the original parties.

UNIVERSITY OF SANTO TOMAS 72

2013 GOLDEN NOTES
 CIVIL PROCEDURE

3. 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 courts (Sec.4, Rule 19).
Note: A change in theory of the defense is not a proper
intervention. Intervention should not alter the theory of both
parties.
Q: When should an answer to a complaint-in-intervention
be filed?
Note: A courts power to allow or deny intervention is
circumscribed by the basic juridical procedure that only a person
with interest in an action or proceeding may be allowed to
intervene. A court has no authority to allow a person, who has no
interest in an action or proceeding, to intervene (Anonuevo v.
Intestate Estate of Jalandoni, 636 SCRA 440).
This discretion, however, must be exercised judiciously and only
after consideration of all the circumstances obtaining in the case.
Thus, where substantial interest of the movant in the subject
matter is undisputed, a denial of a motion to intervene is an
injustice (Mago v. CA, 303 SCRA 600).

A: It 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).
Q: May intervention be allowed after judgment has been
rendered by the court? (1991 Bar Question)
SUBPOENA
It is a process directed to a person requiring him to attend
and to testify at the hearing or the trial of an action, or at
any investigation conducted under the laws of the
Philippines, or for taking of his deposition (Sec. 1, Rule 21).

A: GR: After rendition of judgment, a motion to intervene is Note: Subpoena is a Latin term which literally means under the
barred, even if the judgment itself recognizes the right of pain of penalty.
the movant. The motion to intervene must be filed at any
time before rendition of judgment by the trial court (Sec. 2, Q: Distinguish subpoena from summons.
Rule 19). Hence, intervention after trial and decision can no
longer be permitted (Yau vs.Manila Banking Corporation, A:
G.R. No. 126731, July 11, 2002) Subpoena Summons
An order to appear and Writ notifying of action
XPNs: testify at the hearing or brought against
1. With respect to indispensable parties, intervention for taking deposition defendant (Cano-
may be allowed even on appeal (Falcasantos v. (Albano, Remedial Law Gutierrez v Gutierrez,
Falcasantos, G.R. No. L-4627, May 13, 1952); Reviewer, p.356, 2010 341 SCRA 670)
2. When the intervenor is the Republic (Lim v. Pacquing, ed.)
G.R. No. 115044, Jan. 27, 1995); May be served to a non- Served on the
party defendant
Note: Prescription does not lie against the State. The State is Needs tender of Does not need tender
not estopped by the inaction or mistakes of its agents. kilometrage, attendance of kilometrage and
fee and reasonable cost other fees
3. Where necessary to protect some interest which of production fee
cannot otherwise be protected, and for the purpose of (Albano, Remedial Law
preserving the intervenors right to appeal (Pinlac v. Reviewer, 2010 ed.)
CA, G.R. No. 91486, Sept. 10, 2003); or
4. May be allowed during the pendency of the appeal, SUBPOENA DUCES TECUM
where the interest of justice so requires (Tahanan Dev.
Corp. v. CA, G.R. No. L-55771, Nov. 15, 1982). A process directed to a person requiring him to bring with
him any books, documents, or other things under his
REMEDY FOR THE DENIAL OF MOTION TO INTERVENE control (Sec. 1, Rule 21).

Q: Is Mandamus a proper remedy from the order of the SUBPOENA AD TESTIFICANDUM

court allowing or disallowing intervention?
A: GR: No. The granting or refusal of a motion to intervene
is a matter of judicial discretion, and once exercised, the
decision of the court cannot be reviewed or controlled by
mandamus, however, erroneous it may be. (Otto Gmur, Inc.
v. Revilla, 55 Phil. 627; Feria & Noche, Civil Procedure
Annotated, p. 487, 2001 ed)
XPN: When there is an arbitrary abuse of that discretion, in
which case mandamus may issue if there is no other
adequate remedy, though the result is that the court will be
called upon to review the exercise of a discretionary power
(Feria & Noche, Civil Procedure Annotated, p. 487, 2001
ed.).
It is a process directed to a person requiring him to attend
and to testify at the hearing or trial of an action or at any
investigation conducted by competent authority or for the
taking of his deposition (Sec. 1, Rule 21).
Q: Can a subpoena be issued against a witness who
refuses to execute a judicial affidavit under the judicial
affidavit rule?
A: Yes. If the government employee or official, or the
requested witness, who is neither the witness of the
adverse party nor a hostile witness, unjustifiably declines
to execute a judicial affidavit or refuses without just cause
to make the relevant books, documents, or other things

73 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

under his control available for copying, authentication, and
eventual production in court, the requesting party may
avail himself of the issuance of a subpoena ad
testificandum or duces tecum under Rule 21 of the Rules of
Court. The rules governing the issuance of a subpoena to
the witness in this case shall be the same as when taking his
deposition except that the taking of a judicial affidavit shall
be understood to be ex parte (Sec. 5, Judicial Affidavit Rule).
SERVICE OF SUBPOENA
Q: Who issues subpoena?
party and is not less than eighteen (18) years of age (Sec. 6, Rule
21).
Q: What should be delivered and tendered to the person
whom subpoena is served?
A: The original shall be exhibited and a copy thereof
delivered to the person on whom it is served, tendering to
him the fees for one days attendance and the kilometrage
allowed by the Rules. If the subpoena is duces tecum, the
reasonable cost of producing the books, documents or
things demanded shall also be tendered (Sec. 6, Rule 21).

A: Note: When a subpoena is issued by or on behalf of the Republic of

the Philippines or an officer or agency thereof, the tender need not
1. The court before whom the witness is required to
be made. (Sec. 6, Rule 21)
attend;
2. The court of the place where the deposition is to be
Q: Why must service of subpoena be made?
taken;
3. The officer or body authorized by law to do so in
A: The service must be made so as to allow the witness a
connection with investigations conducted by said
reasonable time for preparation and travel to the place of
officer or body; or
attendance (Sec. 6, Rule 21).
4. Any Justice of the SC or of the CA in any case or
investigation pending within the Philippines (Sec. 2,
COMPELLING ATTENDANCE OF WITNESSES; CONTEMPT
Rule 21).
Q: What is the rule when application for subpoena to a
Q: What is the effect of failure to comply with subpoena?
prisoner is made?
A: GR: The court or judge which issued the subpoena may
A: The judge or officer shall examine and study carefully
issue a warrant for the arrest of the witness and make him
such application to determine whether the same is made
pay the cost of such warrant and seizure, if the court should
for a valid purpose and no prisoner sentenced to death,
determine that his disobedience was willful and without
reclusion perpetua or life imprisonment and is confined in
just cause. The refusal to obey a subpoena without
prison shall be brought outside the said penal institution for
adequate cause shall be deemed contempt of the court
appearance or attendance in any court unless authorized by
issuing it (Secs. 8 and 9, Rule 21).
the SC (Sec. 2, Rule 21).
XPNs:
Q: What are the contents of subpoena?
1. Viatory right - where the witness resides more than
100 km. from his residence to the place where he is to
A: It shall state the name of the court and the title of the
testify by the ordinary course of travel, generally, by
action or investigation, shall be directed to the person
overland transportation or
whose attendance is required, and in the case of a
2. When the permission of the court in which the
subpoena duces tecum, it shall also contain a reasonable
detention prisoners case is pending was not obtained
description of the books, documents or things demanded
(Sec. 10, Rule 21).
which must appear to the court prima facie relevant (Sec. 3,
Rule 21).
QUASHING OF SUBPOENA
Q: What is the rule on subpoena for depositions?
Q: How is a subpoena quashed?
A: Proof of service of a notice to take a deposition, as
A: Subpoena duces tecum: Upon motion promptly made
provided in Secs. 15 and 25, Rule 23, shall constitute
and, in any event, at or before the time specified therein:
sufficient authorization for the issuance of subpoenas for
1. If it is unreasonable and oppressive, or
the persons named in said notice by the clerk of the court
2. The relevancy of the books, documents or things does
of the place in which the deposition is to be taken. The
not appear, or
clerk shall not, however, issue a subpoena duces tecum to
3. If the person in whose behalf the subpoena is issued
any such person without an order of the court (Sec. 5, Rule
fails to advance the reasonable cost of the production
21).
thereof (Sec. 4, Rule 21).
4. That the witness fees and kilometrage allowed by the
Q: How is service of subpoena made?
Rules were not tendered when the subpoena was
served
A: It shall be made in the same manner as personal or
substituted service of summons (Sec. 6, Rule 21).
Subpoena ad testificandum:
1. That the witness is not bound thereby.
Note: Service of a subpoena shall be made by the sheriff, by his
deputy, or by any other person specially authorized, who is not a

UNIVERSITY OF SANTO TOMAS 74

2013 GOLDEN NOTES
 CIVIL PROCEDURE
2. That the witness fees and kilometrage allowed by the
Rules were not tendered when the subpoena was
served (Sec. 4, Rule 21).
MODES OF DISCOVERY
Q: What is discovery?
A: It is a device employed by a party to obtain information
about relevant matters on the case from the adverse party
in preparation for the trial. (Riano, Civil Procedure: A
Restatement for the Bar, p. 375, 2009 ed)
Note: As contemplated by the Rules, the device may be used by all
the parties to the case (Ibid).
Q: What are the different modes of discovery?
A:
Deposition pending action(Rule 23)
By leave of court after jurisdiction has been obtained over
any defendant or over property which is the subject of the
action, or without such leave after an answer has been
served, the testimony of any person, whether a party or not,
may be taken, at the instance of any party, by deposition
upon oral examination or written interrogatories.
Depositions Before Action or Pending Appeal
(Rule 24)
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 court of the place of the residence of any
expected adverse party
Wriiten Interrogatories to adverse parties
(Rule 25)
Under the same conditions specified in Sec. 1, Rule 23, any
party desiring to elicit material and relevant facts from any
adverse parties shall file and serve upon the latter written
interrogatories to be answered by the party served or, if
the party served is a public or private corporation or a
partnership or association, by any officer thereof
competent to testify in its behalf.
Admission by adverse party (Rule 26)
At any time after issues have been joined, a party may file
and serve upon any other party a written request for the
admission by the latter of the genuineness of any material
and relevant document or of the truth of any material and
relevant matter of fact.
Production or inspection of documents or things (Rule 27)
Upon motion of any party showing good cause therefor, the
court in which an action is pending may order any party to
produce and permit the inspection and copying of any
designated documents or order any party to permit entry
upon designated land or other property in his possession or
control for the purpose of inspecting or photographing the
property or any designated relevant object or operation
thereon.
Physical and mental examination of persons
(Rule 28)
In an action in which the mental or physical condition of a
party is in controversy, the court in which the action is
pending may in its discretion order him to submit to a
75
physical or mental examination by a physician.
Note: The modes of discovery are cumulative. They are not
alternative nor mutually exclusive.
Q: What are the basic purposes of the rules of discovery?
A:
1. To enable a party to obtain knowledge of material
facts within the knowledge of the adverse party or of
third parties through depositions;
2. To obtain knowledge of material facts or admissions
from the adverse party through written
interrogatories;
3. To obtain admissions from the adverse party regarding
the genuineness of relevant documents or relevant
matters of fact through requests for admissions;
4. To inspect relevant documents or objects, and lands or
other property in the possession and control of the
adverse party; and
5. To determine the physical or mental condition of a
party when such is in controversy (Koh vs. IAC, 144
SCRA 259).
Note: The modes of discovery are designed to serve as an
additional device aside from a pre-trial, to narrow and clarify the
basic issues between the parties, to ascertain the facts relative to
the issues and to enable the parties to obtain the fullest possible
knowledge of the issues and facts before civil trials and thus
prevent the said trials to be carried on in the dark. It is intended to
make certain that all issues necessary to the disposition of a case
are properly raised. (Tinio vs. Manzano, 307 SCRA 460)
Q: What are the limitations in the modes of discovery?
A:
1. Those matters which are privileged;
2. Those under protection order;
3. The modes of discovery must not be
conducted in bad faith.
DEPOSITIONS PENDING ACTION; DEPOSITIONS BEFORE
ACTION OR PENDING APPEAL
MEANING OF DEPOSITION
Q: What is deposition?
A: A deposition is the taking of the testimony of any
person, whether he be a party or not, but at the instance of
a party to the action. This testimony is taken out of court.
Deposition may be:
a. An oral examination
b. Written interrogatories (Sec 1, Rule 23)
Q: When can depositions may be availed of?
A:
1. During a pending action (Rule 23) deposition de benne
esse
2. Before action or Pending appeal (Rule 24) deposition
in perpetuam rei memoriam
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

b. Before such person or officer as may be

Q: When is leave of court necessary when taking
depositions? When is it not necessary?
A:
1. It is necessary
a. Before service of an answer but after the
jurisdiction has been acquired over the defendant
or over the property subject of the action
b. If the deposition to be taken is that of a prisoner
(Sec. 1, Rule 23).
appointed by commission or letters rogatory; or
c. Any person authorized to administer oaths, as
stipulated by the parties in writing (Sec. 14, Rule
23).
Q: When shall letters rogatory or commission be issued?
A: They shall be issued only when necessary or convenient,
on application and notice, and on such terms and with such
direction as are just and appropriate (Sec. 12, Rule 23).

2. It is not necessary
a. When an answer has already been served Q: Distinguish commission from letters rogatory.

Q: What is the effect of substitution of parties? A:

Commission Letters Rogatory
A: It does not affect the right to use depositions previously Instrument issued by a An instrument sent in the
taken; and when an action has been dismissed and another court of justice or other name and by the authority
action involving the same subject is afterward brought competent tribunal, of a judge or court of
between the same parties or their representatives or directed to a magistrate another, requesting the
successors-in-interest, all depositions lawfully taken and by his official latter to cause to be
duly filed in the former action may be used in the latter as if designation or to an examined, upon
originally taken therefor (Sec. 5, Rule 23). individual by name, interrogatories filed in a
authorizing him to take cause pending before the
Q: Should the deponent be deemed a witness of the party depositions of the former, a witness who is
taking his deposition? witness named therein within the jurisdiction of
the judge or court to
A: GR: No (Sec. 7, Rule 23). Depositions may be taken for whom such letters are
discovery and not necessarily for use as evidence (Feria & addressed (Dasmarinas
Noche, Civil Procedure Annotated, p. 516, 2001 ed) Garments, Inc. v. Reyes, et
al, G.R. 108229)
XPN: If the deposition or any part thereof is offered in Directed to officials of Requests to foreign
evidence for any purpose (Sec. 8, Rule 23). the issuing jurisdiction tribunals

XPN to the XPN: Introduction of deposition does not
make the deponent his witness:
1. If the deposition is used for impeaching or
contradicting the deponent (Sec. 8, Rule 23); or
2. If the adverse party uses the deposition of the
other party (Sec. 4[b], Rule 23)
Q: May a party rebut a deposition?
A: Yes. At the trial or hearing, any party may rebut any
relevant evidence contained in a deposition whether
introduced by him or by any other party (Sec.9, Rule 23).
Q: Before whom may depositions be taken?
A:
1. If within the Philippines
a. Judge;
b. Notary public (Sec. 10, Rule 23); or
c. Any person authorized to administer oaths, as
stipulated by the parties in writing (Sec. 14, Rule
23).
2. If outside the Philippines
a. On notice, before a secretary of embassy or
legation, consul-general, consul, vice-consul, or
consular agent of the Philippines (Sec. 11, Rule
23);
Taken in accordance The methods of procedure
with the rules laid down are under the control of
by the court issuing the foreign tribunal (Dulay v.
commission Dulay, GR No. 158857,
November 11, 2005)
Note: Letters of rogatory may be applied for and issued only after a
commission has been returned unexecuted (Dasmarinas Garments,
Inc. v. Reyes, et al, G.R. 108229).
Note: Leave of court is not required when the deposition is to be
taken before a secretary of embassy or legation, consul general,
consul, vice-consul or consular agent of the Republic of
the Philippines and the defendants answer has already been
served. However, if the deposition is to be taken in a foreign
country where the Philippines has no secretary of embassy or
legation, consul general, consul, vice-consul or consular agent, it
may be taken only before such person or officer as may be
appointed by commission or under letters rogatory (Dulay v. Dulay,
GR No. 158857, November 11, 2005).
Q: Who are disqualified to be a deposition officer?
A:
th
1. One who is related to the deponent within the 6
degree of consanguinity or affinity;
2. An employee or attorney of one of the parties;

UNIVERSITY OF SANTO TOMAS 76

2013 GOLDEN NOTES
 CIVIL PROCEDURE
3. One who is related to the attorney of the deponent
within the same degree or employee of such attorney;
and
4. One who is financially interested in the action (Sec. 13,
Rule 23).
Q: May the parties stipulate in writing for the taking of
depositions?
A: Yes. The parties may stipulate in writing as to the person
authorized to administer oaths, as to the time and place,
but not as to the manner of taking depositions which
should be in accordance with the rules (Feria & Noche, Civil
Procedure Annotated, p. 520, 2001 ed.).
Q: What is the requirement in taking deposition upon oral
examination?
A: A party desiring to take the deposition of any person
upon oral examination shall give reasonable notice in
writing to every other party to the action (Sec. 15, Rule 23).
Q: What shall the notice state?
A: It shall state the time and place for taking the deposition
and the name and address of each person to be examined,
if known, and if the name is not known, a general
description sufficient to identify him or the particular class
or group to which he belongs (Sec. 15, Rule 23).
Note: On motion of any party upon whom the notice is served, the
court may for cause shown enlarge or shorten the time (Sec. 15,
Rule 23).
Q: When may the court make orders for the protection of
parties and deponents?
A: After notice is served for taking a deposition by oral
examination, upon motion seasonably made by any party
or by the person to be examined and for good cause shown,
the court in which the action is pending may make orders
for the protection of parties and deponents (Sec. 16, Rule
23).
Q: What are the orders that the court may make for the
protection of parties and deponents?
A:
1. That the deposition shall not be taken;
2. That it may be taken only at some designated place
other than that stated in the notice;
3. That it may be taken only on written interrogatories;
4. That certain matters shall not be inquired into;
5. That the scope of the examination shall be held with
no one present except the parties to the action and
their officers or counsel;
6. That after being sealed, the deposition shall be opened
only by order of the court, or that secret processes,
developments, research need not be closed;
7. That the parties shall simultaneously file specified
documents or information enclosed in sealed
envelopes to be opened as directed by the court; or
77
8. The court may make any other order which justice
requires to protect the party or witness from
annoyance, embarrassment, or oppression (Sec. 16,
Rule 23).
Q: What objections shall be noted by the officer upon the
deposition?
A: All objections made at the time of the examination to
the:
1. Qualifications of the officer taking the deposition;
2. Manner of taking the deposition;
3. Evidence presented;
4. Conduct of any party; or
5. Any other objection to the proceedings (Sec. 17, Rule
23).
Note: A deposition officer has no authority to rule on the objection
(Herrera, Remedial Law, Vol. II, p. 34, 2007 ed.). Evidence objected
to shall be taken subject to the objection, which will be ruled upon
by the court when the deposition is offered in evidence (Feria &
Noche, Civil Procedure Annotated, p. 524, 2001 ed)
Q: What may the parties do if they cannot participate in
the oral examination?
A: The parties may transmit written interrogatories to the
officers, who shall propound them to the witness and
record the answers verbatim (Sec. 17, Rule 23).
Q: What shall be done with the changes which the witness
desire to make?
A: Any changes in form or substance shall be entered upon
the deposition by the officer with a statement of the
reasons given by the witness for making them (Sec. 19, Rule
23).
Q: Is the signing of deposition necessary?
A: GR: Yes, it shall be signed by the witness.
XPN:
1. Parties by stipulation waive the signing;
2. Witness is ill;
3. Witness cannot be found; or
4. Witness refuses to sign (Sec. 19, Rule 23)
Note: If the witness does not sign the deposition, the officer shall
sign it and state on the record the fact of the waiver or of the
illness or absence of the witness or the fact of refusal to sign
together with the reason given therefor, if any, and the deposition
may then be used as fully as though signed, unless on a motion to
suppress under Sec. 29 (f), Rule 23, the court holds that the
reasons given for the refusal to sign require rejection of the
deposition in whole or in part (Sec. 19, Rule 23).
Q: When shall the officer furnish a copy of the deposition
to any party or to the deponent?
A: He shall furnish a copy upon payment of reasonable
charges therefor (Sec. 22, Rule 23).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What is the consequence of failure to attend by the
party giving notice?
A: The court may order the party giving the notice to pay
such other party the amount of the reasonable expenses
incurred by him and his counsel in so attending, including
reasonable attorneys fees (Sec. 23, Rule 23).
Q: What is the consequence of failure of a party giving
notice to serve subpoena?
A: If because of such failure, the witness does not attend,
and if another party attends in person or by counsel
because he expects the deposition of that witness to be
taken, the court may order the party giving the notice to
pay to such other party the amount of the reasonable
expenses incurred by him and his counsel in so attending,
including reasonable attorneys fees (Sec. 24, Rule 23).
Q: How is deposition upon written interrogatories done?
A: A party desiring to take the deposition of any person
upon written interrogatories shall serve them upon every
other party with a notice stating the name and address of
the person who is to answer them and the name or
descriptive title and address of the officer before whom the
deposition is to be taken. Within ten (10) days thereafter, a
party so served may serve cross-interrogatories upon the
party proposing to take the deposition. Within five (5) days
thereafter, the latter may serve re-direct interrogatories
upon a party who has served cross-interrogatories. Within
three (3) days after being served with re-direct
interrogatories, a party may serve recross-interrogatories
upon the party proposing to take the deposition (Sec. 25,
Rule 23).
Note: The duties of the officer under Secs. 17, 19, 20, 21 & 22 of
Rule 23 shall also be followed on deposition upon written
interrogatories (Secs. 26 & 27, Rule 23).
Q: Who may file a petition for deposition before action
under Rule 24?
A: Any person who wants to perpetuate his own testimony
or that of another person regarding any matter that may be
cognizable in any court of the Philippines (Sec. 1, Rule 24).
Q: What are the contents of the petition?
A: The petition shall be entitled in the name of the
petitioner and shall show that:
1. the petitioner expects to be a party to an action in a
court of the Philippines but is presently unable to bring
it or cause it to be brought;
2. the subject matter of the expected action and his
interest therein;
3. the facts which he desires to establish by the proposed
testimony and his reasons for desiring to perpetuate it;
4. the names or a description of the persons he expects
will be adverse parties and their addresses so far as
known; and
5. the names and addresses of the persons to be
examined and the substance of the testimony which
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
he expects to elicit from each, and shall ask for an
order authorizing the petitioner to take the
depositions of the persons to be examined named in
the petition for the purpose of perpetuating their
testimony (Sec.2, Rule 24).
Q: What is the rule on notice and service of depositions
before action?
A: The petitioner shall serve a notice upon each person
named in the petition as an expected adverse party,
together with a copy of the petition, stating that the
petitioner will apply to the court, at a time and place
named therein, for the order described in the petition. At
least twenty (20) days before the date of the hearing, the
court shall cause notice thereof to be served on the parties
and prospective deponents in the manner provided for
service of summons (Sec. 3, Rule 24).
Q: What are the contents of the motion for deposition
pending appeal?
A: The motion shall state:
1. The names and addresses of the persons to be
examined
2. The substance of the testimony which he expects to
elicit from each
3. The reason for perpetuating their testimony (Sec. 7,
Rule 24).
Note: If the court finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may make an order
allowing the depositions to be taken, and thereupon the
depositions may be taken and used in the same manner and under
the same conditions as are prescribed under Rule 23 (Sec. 7, Rule
24).
USES; SCOPE OF EXAMINATION
Q: To whom may the deposition be used against?
A: Any part or all of the deposition, so far as admissible
under the rules of evidence, may be used against:
1. Any party who was present or represented at the
taking of the deposition; or
2. One who had due notice of the deposition (Sec. 4, Rule
23)
Q: What are the uses of depositions?
A:
1. Contradicting or impeaching the testimony of the
deponent as a witness;
2. Any purpose by the adverse party where the deponent
is a party; or
3. Any purpose by any party if the court finds that: DR.
USE
a. The witness is Dead
b. The witness Resides more than 100 kilometers
from the place of trial or hearing, or is out of the
Philippines. Unless it appears that his absence
was procured by the party offering the
deposition
c. The witness is Unable to testify because of age,
sickness, infirmity or imprisonment
78
 CIVIL PROCEDURE
d. The party offering the deposition has been unable
to procure the attendance of the witness by
Subpoena
e. Upon application and notice, that such
Exceptional circumstances exist as to make it
desirable in the interest of justice (Sec. 4, Rule 23)
Q: What is the dual function of depositions?
A: Rule 23 method of discovery, with use on trial not
necessarily contemplated
Rule 24 a method of presenting testimony
Q: What is the use of deposition pending appeal?
A: Depositions are taken pending appeal with the view to
their being used in the event of further proceeding in the
court of origin or appellate court (Sec. 7, Rule 24).
Note: The deposition taken under this Rule is admissible in
evidence in any action subsequently brought involving the same
subject matter (Sec. 6, Rule 24).
Q: What is the scope of the examination of the deponent?
A: Unless otherwise ordered by the court as provided by
Sec. 16 or 18, Rule 23, the deponent may be examined
regarding any matter, not privileged, which is relevant to
the subject of the pending action, whether relating to the
claim or defense of any other party, including the:
1. Existence;
2. Description;
3. Nature;
4. Custody;
5. Condition;
6. Location of any books, documents, or other tangible
things; and
7. The identity and location of persons having knowledge
of relevant facts (Sec. 2, Rule 23).
WHEN MAY OBJECTIONS TO ADMISSIBILITY BE MADE
Q: What is the rule on objections to admissibility of
deposition?
A: Subject to the provisions of Sec. 29, Rule 23, objection
may be made at the trial or hearing to receiving in evidence
any deposition or part thereof for any reason which would
require the exclusion of the evidence if the witness were
then present and testifying (Sec. 6, Rule 23).
Q: What is the effect of errors and irregularities in
depositions as stated under Sec. 29, Rule 23?
A:
1. As to notice All errors and irregularities in the notice
for taking a deposition are waived unless written
objection is promptly served upon the party giving the
notice.
2. As to disqualification of officer Objection to taking a
deposition because of disqualification of the officer
79
before whom it is to be taken is waived unless made
before the taking of the deposition begins or as soon
thereafter as the disqualification becomes known or
could be discovered with reasonable diligence.
3. As to competency or relevancy of evidence Objections
to the competency of witness or the competency,
relevancy, or materiality of testimony are not waived by
failure to make them before or during the taking of the
deposition, unless the ground, of the objection is one
which might have been obviated or removed if
presented at that time.
4. As to oral examination and other particulars Errors
and irregularities occurring at the oral examination in
the manner of taking the deposition in the form of the
questions or answers, in the oath or affirmation, or in
the conduct of the parties and errors of any kind which
might be obviated, removed, or cured if promptly
prosecuted, are waived unless reasonable objection
thereto is made at the taking of the deposition.
5. As to form of written interrogatories Objections to
the form of written interrogatories submitted under
Secs. 25 and 26 are waived unless served in writing
upon the party propounding them within the time
allowed for serving succeeding cross or other
interrogatories and within 3 days after service of the
last interrogatories authorized.
6. As to manner of preparation Errors and irregularities
in the manner in which the testimony is transcribed or
the deposition is prepared, signed, certified, sealed,
indorsed, transmitted, filed, or otherwise dealt with by
the officer under Secs. 17, 19, 20 and 26 are waived
unless a motion to suppress the deposition or some
part thereof is made with reasonable promptness after
such defect is, or with due diligence might have been,
ascertained (Sec. 29, Rule 23).
WHEN MAY TAKING OF DEPOSITION BE TERMINATED OR
ITS SCOPE LIMITED
Q: When may taking of deposition be terminated or its
scope limited and what are the grounds thereof?
A: At any time during the taking of the deposition, on
motion or petition of any party or of the deponent, and
upon showing that the examination is conducted in:
1. Bad faith;
2. Such manner as unreasonably to annoy, embarrass, or
oppress the deponent party (Sec. 18, Rule 23); or
3. When the constitutional privilege against self-
incrimination is invoked by deponent or his counsel
(Herrera, Remedial Law, Vol.II, p. 37, 2007 ed.).
Note: If the order made terminates the examination, it shall be
resumed thereafter only upon the order of the court in which the
action is pending. Upon demand of the objecting party or
deponent, the taking of the deposition shall be suspended for the
time necessary to make a notice for an order. In granting or
refusing such order, the court may impose upon either party or
upon the witness the requirement to pay such costs or expenses as
the court may deem reasonable. (Sec. 18, Rule 23)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: Distinguish protection order from motion to terminate Q: Distinguish depositions upon written interrogatories
or limit examination. under Rule 23, Section 25 from interrogatories to parties
under Rule 25.
A:
Protection Order (Sec. Motion to Terminate or A:
16, Rule 23) Limit Examination (Sec. Depositions Upon Interrogatories to
18, Rule 23) Written Interrogatories Parties (Rule 25)
Provides protection to Provides protection to Parties (Sec. 25, Rule
the party or witness during the taking of 23)
before the taking of deposition. Deponent
deposition. Party or ordinary witness Party only
The Motion is filed with Motion or petition is filed Procedure
the court in which the with the court in which With intervention of the No intervention.
action is pending. the action is pending or officer authorized by the Written
the RTC of the place Court to take deposition interrogatories are
where the deposition is directed to the party
being taken. himself
Not served upon the
WRITTEN INTERROGATORIES TO ADVERSE PARTIES adverse party directly. Served directly upon
They are instead delivered the adverse party (Sec
Q: What is the purpose of interrogatories to parties? to the officer before 1, Rule 25)
whom the deposition is to
A: To elicit material and relevant facts from any adverse be taken. (Sec 26, Rule 23)
party (Sec. 1, Rule 25). Scope
Direct, cross, redirect, re- Only one set of
Note: The answers may also be used as admissions of the adverse cross interrogatories
party (Feria & Noche, Civil Procedure Annotated, p. 538, 2001 ed.). Interrogatories
No fixed time 15 days to answer
Q: Distinguish interrogatories from bill of particulars. unless extended or
reduced by the court
A: Binding to anyone who is Binding only to the
Interrogatories Bill of Particulars present during the parties.
Interrogatories to Designed to clarify deposition.
parties are not directed ambiguities in a
to a particular pleading. pleading or to state Q: What is the procedure in taking interrogatories?
Instead, they seek to with sufficient
disclose all material and definiteness allegations A: The mode of discovery is availed of by filing and serving
relevant facts from a in a pleading. It is upon the adverse party written interrogatories to be
party (Sec 1, Rule 25) therefore directed to a answered by the party served. If the party is a juridical
pleading (Sec 1, Rule entity, it shall be answered by any of its officers competent
12) to testify in its behalf (Sec 1, Rule 25). The interrogatories
A party may properly A party may properly shall be answered fully in writing and shall be signed and
seek disclosure of seek disclosure only of sworn to by the person making them.
matters of proof which matters which define
may later be made a the issues and become Note: No party may, without leave of court, serve more than one
part of the records of a part of the pleadings set of interrogatories to be answered by the same party. (Sec. 4,
evidence Rule 25)

Note: If a motion to a bill of particulars is denied, it will not bar the
party to avail of modes of discovery.
Q: How are interrogatories answered?
A: The interrogatories shall be answered fully in writing and
shall be signed and sworn to by the person making them.
The party upon whom the interrogatories have been served
shall file and serve a copy of the answers on the party
submitting the interrogatories within fifteen (15) days after
service thereof, unless the court, on motion and for good
cause shown, extends or shortens the time (Sec. 2, Rule 25).

Note: The party against whom it is directed may make objections

to the interrogatories. (Sec. 2, Rule 25)

UNIVERSITY OF SANTO TOMAS 80

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Q: How can a party make objections to
interrogatories?
A: Objections shall be presented to the court within 10 days
after service of the interrogatories. The filing of the
objections shall have the effect of deferring the filing and
service of the answer to the interrogatories (Sec. 3, Rule
25).
Q: Is leave of court necessary before a party may be
served with written interrogatories?
A: It is necessary before answer has been served because,
at that time, the issues are not yet joined and the disputed
facts are not yet clear. However, it is not necessary after
answer has been served, for the first set of interrogatories.
Q: What is the scope and use of interrogatories?
A: Interrogatories may relate to any matters that can be
inquired into under Section 2 of Rule 23, and the answers
may be used for the same purposes provided in section 4 of
the same Rule (Sec. 5, Rule 25).
CONSEQUENCES OF REFUSAL TO ANSWER
Q: What are the consequences of refusal to answer?
A:
(1) If a party or other deponent refuses to answer any
question upon oral examination, the examination may
be completed on other matters or adjourned as the
proponent of the question may prefer. The proponent
may thereafter apply to the proper court of the place
where the deposition is being taken, for an order to
compel an answer. The same procedure may be availed
of when a party or a witness refuses to answer any
interrogatory submitted under Rules 23 or 25.
If the application is granted, the court shall require the
refusing party or deponent to answer the question or
interrogatory and if it also finds that the refusal to
answer was without substantial justification, it may
require the refusing party or deponent or the counsel
advising the refusal, or both of them, to pay the
proponent the amount of the reasonable expenses
incurred in obtaining the order, including attorneys
fees.
If the application is denied and the court finds that it
was filed without substantial justification, the court may
require the proponent or the counsel advising the filing
of the application, or both of them, to pay to the
refusing party or deponent the amount of the
reasonable expenses incurred in opposing the
application, including attorneys fees (Sec. 1, Rule 29).
(2) If a party or other witness refuses to be sworn or refuses
to answer any question after being directed to do so by
the court of the place in which the deposition is being
taken, the refusal may be considered a contempt of
that court (Sec. 2, Rule 29).
the (3) If any party or an officer or managing agent of a party
refuses to obey an order made under section 1 of this
Rule requiring him to answer designated questions, or
an order under Rule 27 to produce any document or
other thing for inspection, copying, or photographing or
to permit it to be done, or to permit entry upon land or
other property, or an order made under Rule 28
requiring him to submit to a physical or mental
examination, the court may make such orders in regard
to the refusal as are just, and among others the
following:
(a) An order that the matters regarding which the
questions were asked, or the character or
description of the thing or land, or the contents of
the paper, or the physical or mental condition of
the party, or any other designated facts shall be
taken to be established for the purposes of the
action in accordance with the claim of the party
obtaining the order;
(b) An order refusing to allow the disobedient
party to support or oppose designated claims or
defenses or prohibiting him from introducing in
evidence designated documents or things or items
of testimony, or from introducing evidence of
physical or mental condition;
(c) An order striking out pleadings or parts thereof,
or staying further proceedings until the order is
obeyed, or dismissing the action or proceeding or
any part thereof, or rendering a judgment by
default against the disobedient party;
(d) In lieu of any of the foregoing orders or in
addition thereto, an order directing the arrest of
any party or agent of a party for disobeying any of
such orders except an order to submit to a physical
or mental examination (Sec. 3, Rule 29).
EFFECT OF FAILURE TO SERVE WRITTEN
INTERROGATORIES
Q: What is the effect of failure to serve written
interrogatories?
A: GR: A party not served with written interrogatories may
not be compelled by the adverse party to give testimony in
open court, or to give a deposition pending appeal.
XPN: When allowed by the court and there is good cause
shown and the same is necessary to prevent a failure of
justice (Sec. 6, Rule 25).
REQUEST FOR ADMISSION
Q: What admissions may be requested from the adverse
party?
A: Admission of the:
1. Genuineness of any material and relevant document
described in and exhibited with the request; or
2. Truth of any material and relevant matter of fact set
forth in the request (Sec. 1, Rule 26).
Note: The request for admission must be served directly upon the
party; otherwise, the party to whom the request is directed cannot
81 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
be deemed to have admitted the genuineness of any relevant
document described in and exhibited with the request or relevant
matters of fact set forth therein on account of failure to answer the
request for admission (Briboneria v. CA, G.R. No. 101682, Dec. 14,
1992).
The answer to a request for admission properly served which was
signed and sworn to by the counsel of the party so requested is
sufficient compliance with this rule, especially in the light of
counsels authority under Secs. 21 and 23, Rule 138 (Nestle
Philippines, Inc. v. CA, G.R. No. 102404, Feb. 1, 2002).
Q: When may request for admission be made?
A: At any time after issues have been joined, a party may
file and serve upon any other party a written request for
the admission by the latter (Sec. 1, Rule 26).
IMPLIED ADMISSION BY ADVERSE PARTY
Q: When is there an implied admission?
A: GR: Each of the matters of which an admission is
requested shall be deemed admitted.
XPN: When the party to whom the request is directed files
and serves upon the party requesting the admission a
sworn statement either denying specifically the matters of
which an admission is requested or setting forth in detail
the reasons why he cannot truthfully either admit or deny
those matters (Sec. 2, Rule 26).
CONSEQUENCES OF FAILURE TO ANSWER REQUEST FOR
ADMISSION
Q: What is the effect of the failure to answer a request for
admission?
A: The facts or documents are deemed admitted. Under the
Rules, each of the matters of which an admission is
requested shall be deemed admitted unless within a period
designated in the request which shall not be less than 15
days after service thereof, or within such further time as
the court may allow on motion, the party to whom the
request is directed files and serves upon the party
requesting the admission a sworn statement either denying
specifically the matter of which an admission is requested
or setting forth in detail the reason why he cannot
truthfully either admit or deny those matters (Sec. 2, Rule
26).
EFFECT OF ADMISSION
Q: What is the effect of admission?
A: Any admission made by a party pursuant to such request
is for the purpose of the pending action only and shall not
constitute an admission by him for any other purpose nor
may the same be used against him in any other proceeding
(Sec. 3, Rule 26).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: When should objections to any request for admission
be submitted?
A: They shall be submitted to the court by the party
requested within the period for and prior to the filing of his
sworn statement and his compliance therewith shall be
deferred until such objections are resolved, which
resolution shall be made as early as practicable (Sec. 2[b],
Rule 26).
Q: May an admission be withdrawn?
A: Yes. The court may allow the party making the admission
to withdraw or amend the admission upon such terms as
may be just (Sec. 4, Rule 26).
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION
Q: What is the effect of failure to file and serve request for
admission?
A: A party who fails to file and serve a request for
admission on the adverse party on material and relevant
facts at issue shall not be permitted to present evidence on
such facts unless otherwise allowed by the court for good
cause shown and to prevent a failure of justice (Sec. 5, Rule
26).
PRODUCTION OR INSPECTION OF DOCUMENTS OR
THINGS
Q: What may the court order under this mode of
discovery?
A: Upon motion of any party showing good cause therefor,
the court in which an action is pending may order any party
to:
1. Produce and permit the inspection and copying or
photographing, by or on behalf of the moving party, or
of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged, which constitute or contain
evidence material to any matter involved in the action
and which are in his possession, custody or control; or
2. Permit entry upon designated land or other property
in his possession or control for the purpose of
inspecting, measuring, surveying, or photographing
the property or any designated relevant object or
operation thereon (Sec. 1, Rule 27).
Q: What are the limitations on the request for production
or inspection of documents or things?
A:
1. Should not be privileged;
2. Should constitute or contain evidence material to any
matter involved in the action and which are in his (the
party ordered) possession, custody, or control (Sec. 1,
Rule 27); and
3. In the petition, the papers and documents to be
produced must be sufficiently described.
82
 CIVIL PROCEDURE

Q: Distinguish the rule on production or inspection of or thereafter made, of the same mental or physical
documents or things under Rule 27 from subpoena duces condition (Sec 3, Rule 28).
tecum.
Q: What is the effect if the party examined requests and
A: obtains a report on the results of the examination?
Production or Subpoena Duces Tecum
Inspection of A:
Documents or Things 1. He has to furnish the other party a copy of the report
Essentially a mode of Means of compelling of any previous or subsequent examination of the
discovery. production of evidence. same physical and mental condition (Sec. 3, Rule 28).
Limited to the parties to It may be directed to 2. He waives any privilege he may have in that action or
the action. any person whether a any other involving the same controversy regarding
party or not. the testimony of every other person who has so
Issued only upon Issued upon an ex parte examined or may thereafter examine him (Sec. 4, Rule
motion with notice to application. 28).
the adverse party.
Note: If a party refuses to deliver the report upon request to the
Note: This mode of discovery does not authorize the opposing person causing the examination to be made, the court may require
party or the clerk of court or other functionaries of the court to its delivery on such terms as are just.
distrain the articles or deprive the person who produced the same
of their possession, even temporarily (Tanda v. Aldaya, GR No. L- If the physician refuses or fails to make a report, the court may
13423, Nov. 23, 1959). exclude his testimony (Sec 3, Rule 28).

Q: What is the procedure to avail of the production or CONSEQUENCES OF REFUSAL TO COMPLY WITH MODES
inspection of documents or things? OF DISCOVERY

A: Q: What are the sanctions in case of refusal to comply

1. A motion must be filed by the party seeking the
production or inspection of documents and things and
the motion must show good cause supporting the
same (Sec 1, Rule 27).
2. The order shall specify the time, place and manner of
making the inspection and taking copies and
photographs, and may prescribe such terms and
conditions as are just (Sec 1, Rule 27).
PHYSICAL AND MENTAL EXAMINATION OF PERSONS
Q: When may physical and mental examination of persons
be ordered?
A: It may be ordered in an action in which the physical or
mental condition of a party is in controversy (Sec. 1, Rule
28).
Q: What is the procedure to avail physical and mental
examination of persons?
A:
1. A motion must be filed showing good cause for the
examination, with notice to the other parties as well
aside from the party to be examined (Sec 2, Rule 28).
2. The motion shall specify the time, place, manner,
conditions and scope of the examination and by the
person/s by whom it is made (Sec 2, Rule 28).
3. The party examined may request the party causing the
examination to be made to deliver to him a copy of a
detailed written report of the examining physician
setting out his findings and conclusions (Sec 3, Rule
28).
4. The party causing the examination to be made shall be
entitled upon request to receive from the party
examined a like report of any examination, previously
with the modes of discovery?
A:
Refusal to answer any question upon oral examination
1. Order to compel an answer;
2. Contempt;
3. Require payment of reasonable fees incurred by the
proponent;
4. Designated facts shall be taken to be established for
the purposes of the action in accordance with the
claim of the party obtaining the order.
5. Dismiss the action or the proceeding;
6. Render a Judgment by default against the
disobedient party;
7. Refuse to allow the disobedient party to support or
oppose claims or defenses;
8. Strike out all or any part of the pleading of the
disobedient party;
9. Stay further proceedings until order is obeyed;
10. Order the arrest of the refusing party.
Refusal to produce document or thing for inspection,
copying or photographing
1. Designated facts shall be taken to be established for
the purposes of the action in accordance with the
claim of the party obtaining the order;
2. Refuse to allow the disobedient party to support or
oppose claims or defenses;
3. Strike out all or any part of the pleading of the
disobedient party;
4. Dismiss the action or the proceeding;
5. Render a Judgment by default against the
disobedient party;
6. Stay further proceedings until order is obeyed;
7. Render a Judgment by default against the
disobedient party
8. Order the arrest of the refusing party.

83 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Refusal to submit to Physical or Mental examination

1. Designated facts shall be taken to be established for Q: Distinguish trial from hearing
the purposes of the action in accordance with the
claim of the party obtaining the order; A:
2. Prohibit the disobedient party to introduce evidence Trial Hearing
of physical and mental conditions; Reception of Not confined to trial and
3. Strike out all or any part of the pleading of the evidence and other presentation of evidence but
disobedient party; processes. embraces several stages of
4. Dismiss the action or the proceeding; litigation, including pre-trial
5. Render a Judgment by default against the and determination of
disobedient party; granting or denying a
6. Stay further proceedings until order is obeyed; motion (Trocio v. Labayo, 53
7. Render a Judgment by default against the SCRA 97).
disobedient party The period for the Does not necessarily imply
Refusal to the request for admission by adverse party introduction of presentation of evidence in
1. Require payment of reasonable fees incurred by the evidence by both open court but the parties
proponent (Secs. 1-4). parties. are afforded the opportunity
2. Each of the matters of which an admission is to be heard.
requested is deemed admitted (Sec. 5, Rule 26).
Q: When is a case ready for trial?
Note: The remedy of the party, in this case, is to file a motion to be
relieved of the consequences of the implied admission. The A: Should there be no amicable settlement or a
amendment of the complaint per se cannot set aside the legal compromise forged between the parties, the case will be
effects of the request for admission since its materiality has not set for trial (Riano, Civil Procedure: A Restatement for the
been affected by the amendment.
Bar, p.17, 2009 ed.).
TRIAL Q: What is the rule on notice of trial?
Q: What is a trial? A: Upon entry of a case in the trial calendar, the clerk shall
notify the parties of the date of its trial in such manner as
A: It is a judicial process of investigating and determining shall ensure his receipt of that notice at least five (5) days
the legal controversies starting with the production of before such date (Sec.1, Rule 30).
evidence by the plaintiff and ending with his closing
arguments (Riano, Civil Procedure: A Restatement for the ADJOURNMENTS AND POSTPONEMENTS
Bar, p. 394, 2009 ed.).
Q: What is the rule on adjournments and postponements
Q: Is trial necessary? (1996 Bar Question) of trial?
A: GR: Yes. Trial is necessary when an issue exists. Decisions A: The court may adjourn a trial from day to day, and to any
should not be made without trial. stated time, as the expeditious and convenient transaction
of business may require. However, the court has no power
XPN: There is no need for trial in the following cases: to adjourn a trial for a period longer than one (1) month
1. Where the pleadings of the parties tender no issue at from each adjournment, nor more than three (3) months in
all, a judgment on the pleadings may be directed by all except when authorized in writing by the Court
the court (Rule 34); Administrator (Sec. 2, Rule 30).
2. Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the REQUISITES OF MOTION TO POSTPONE TRIAL;
court may render a summary judgment (Rule 35); FOR ABSENCE OF EVIDENCE; FOR ILLNESS OF PARTY OR
3. Where the parties have entered into a compromise or COUNSEL
an amicable settlement either during the pre-trial or
while the trial is in progress (Rule 18; Art. 2028, NCC); Q: What are the requisites of a motion to postpone trial?
4. Where the complaint has been dismissed with
prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par., A: For absence of evidence
Sec. 5, Rule 7); 1. A motion for postponement must be filed;
5. Where the parties agree in writing, upon the facts 2. The motion must be supported by an affidavit or
involved in the litigation, and submit the case for sworn certification showing:
judgment on the facts agreed upon, without the
introduction of evidence. If however, there is no a. the evidence is material or relevant; and
agreement as to all the facts in the case, trial may be b. that due diligence has been used to procure it (Sec.
held only as to the disputed facts (Sec. 6, Rule 30) 3, Rule 30).
6. Where the civil case falls under the operation of the
Rules on Summary Procedure (Rule 17);
7. When the case falls under the Rule on Small Claims.

UNIVERSITY OF SANTO TOMAS 84

2013 GOLDEN NOTES
 CIVIL PROCEDURE

Note: If the adverse party admits the facts sought to be given ORDER OF TRIAL; REVERSAL OF ORDER
in evidence, the trial shall not be postponed even if he objects
or reserves the right to their admissibility. Q: What is the procedure in trial?

For illness of party or counsel
1. A motion for postponement must be filed;
2. The motion must be supported by an affidavit or
sworn certification showing:
a. the presence of the party or counsel at the trial is
indispensable; and
b. that the character of his illness is such as to render
his non-attendance excusable (Sec. 4, Rule 30).
A: Subject to the provisions of Sec. 2, Rule 31, and unless
the court for special reasons otherwise directs, the trial
shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
Plaintiff shall adduce evidence in
support of his complaint

Q: What cases should the clerk of court give preference in

scheduling of cases? Defendant shall then adduce evidence
in support of his defense, counterclaim,
A: In calendaring cases, the clerk of court shall give cross-claim and third party complaint
preference to:
1. Habeas corpus cases; Third party defendant if any shall
2. Election cases; adduce evidence of his defense,
3. Special civil actions; and counterclaim, cross-claim, and fourth-
4. Those so required by law to be preferred (Sec. 1, Rule party complaint
20).

AGREED STATEMENT OF FACTS Fourth party, and so forth, if any, shall

adduce evidence material facts pleaded
Q: What is the effect when there is agreed statement of by them
facts?

A: The parties to any action may agree, in writing, upon the Parties against whom any counterclaim
facts involved in the litigation, and submit the case for or cross-claim has been pleaded, shall
judgment on the facts agreed upon, without the adduce evidence in support of their
defense, in the order to be prescribed
introduction of evidence.
by the court
If the parties agree only on some facts in issue, the trial
shall be held as to the disputed facts in such order as the Parties may then respectively adduce
court shall prescribe. (Sec. 6, Rule 30) rebutting evidence only, unless the court, for
good reasons and in the furtherance of
justice, permits them to adduce evidence
Q: Distinguish stipulation of facts in civil cases vis-a-vis upon their original case
criminal cases.

A:
Upon admission of the evidence, the case
Civil Cases Criminal Cases shall be deemed submitted for decision,
May be signed by the Must be signed both by unless the court directs the parties to argue
counsel alone who has a the counsel and the or to submit their respective memoranda or
special power of accused. any further pleadings
attorney.
May be made verbally It must always be in
Note: If several defendants or third party defendants and so forth
or in writing. writing. having separate defenses appear by different counsel, the court
shall determine the relative order of presentation of their evidence
(Sec. 5, Rule 30).

Q: When is a reverse order of trial allowed?

A: Where the defendant, in his answer, relies upon an

affirmative defense, a reverse order of trial shall take place.
Since the defendant admits the plaintiffs claim but seeks to
avoid liability based on his affirmative defense he shall
proceed first to prove his exemption.

85 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

CONSOLIDATION OR SEVERANCE OF HEARING OR TRIAL tried (Raymundo v. Felipe, G.R. No. L-30887, Dec. 24,
1971).
Q: Distinguish consolidation from severance
Q: When may civil actions be suspended?
A:
Consolidation Severance A:
Involves several actions Contemplates a single 1. If willingness to discuss a possible compromise is
having a common action having a number expressed by one or both parties; or
question of law or fact of claims, 2. If it appears that one of the parties, before the
which may be jointly counterclaims, cross- commencement of the action or proceeding, offered to
tried claims, third-party discuss a possible compromise but the other party
(Sec.1, Rule 31) complaints, or issues refused the offer (Sec. 8, Rule 30; Art. 2030, NCC).
which may be
separately tried Q: Doris filed a complaint for ejectment in the MTC on the
(Sec. 2, Rule 31) ground of non-payment of rentals against Minda. After 2
days, Minda filed in the RTC a complaint against Doris for
Q: What are the requisites for consolidation? specific performance to enforce the option to purchase
the parcel of land subject of the ejectment case. What is
A: the effect of Minda's action on Doris' complaint? Explain
1. Actions involving a common question of law or fact; and (2000 Bar Question)
2. There must be at least 2 actions pending before the
same court (Sec.1, Rule 31). A: There is no effect. The ejectment case involves
possession de facto only. The action to enforce the option
Q: What are the ways of consolidating cases? to purchase will not suspend the action of ejectment for
non-payment of rentals (Wilmon Auto Supply Corp. v. CA,
A: G.R. No. 97637, Apr. 10, 1992).
Recasting the Consolidation Test-Case
Cases Proper Method DELEGATION OF RECEPTION OF EVIDENCE
Reshaping of It is a joint trial By hearing
the cases by with joint only the Q: May the judge delegate the reception of evidence?
amending the decision, the principal case
pleading, cases retaining and A: GR: No. The judge shall personally receive and resolve
dismissing their original suspending the the evidence to be adduced by the parties.
some cases docket hearing on the
and retaining numbers. other cases XPN: The reception of evidence may be delegated to the
only one case. until judgment Clerk of Court, who is a member of the bar, under the
There must be has been following conditions:
joinder of rendered in 1. in defaults hearings;
causes of the principal 2. ex parte hearings; or
action and of case. The cases 3. in any case where the parties agree in writing (Sec. 9,
parties. retain their Rule 30).
original docket
numbers Note: Said clerk shall have no power to rule on objections to
any question or to admission of evidence or exhibits; and he
(Riano, Civil
shall submit his report and transcripts of the proceedings,
Procedure: A together with the objections to be resolved by the court,
Restatement within 10 days from the termination of the hearing (Ibid).
for the Bar, p.
96, 2009 ed.). TRIAL BY COMMISSIONERS

Q: What is the rule on consolidation of cases? Q: Who is a commissioner?

A: GR: Consolidation is discretionary upon the court to
avoid multiplicity of suits, guard against oppression or
abuse, prevent delay, clear congested dockets, and simplify
the work of the trial court and save unnecessary costs and
expenses.
A: A person to whom a case pending in court is referred, for
him to take testimony, hear the parties and report thereon
to the court, and upon whose report, if confirmed,
judgment is rendered.

XPN: Consolidation becomes a matter of duty when:

1. Two or more cases are pending before the same judge;
or
2. If cases are filed with the different branches of the
same RTC and one of such case has not been partially

UNIVERSITY OF SANTO TOMAS 86

2013 GOLDEN NOTES
 CIVIL PROCEDURE

Q: Distinguish delegation to clerk of court under Rule 30 5. Rule upon the admissibility of evidence (Sec.3, Rule
from trial by commissioner under Rule 32. 32).

A: Q: What is the effect of failure of parties to appear before

Delegation to Clerk of Trial by Commissioner a commissioner?
Court
Delegation is made Commissioner can be A: The commissioner may proceed ex parte or, in his
during trial. appointed even after discretion, adjourn the proceedings to a future day, giving
the case has become notice to the absent party or his counsel of the
final and executory. adjournment (Sec.6, Rule 32).
Clerk of court must be a Commissioner need not
lawyer. be a lawyer. COMMISSIONERS REPORT; NOTICE TO PARTIES AND
Clerk of court cannot Commissioner can rule HEARING ON THE REPORT
rule on objections or on on objections or on
the admissibility of admissibility of Q: What is a commissioners report?
evidence. evidence.
A: Upon completion of the trial or hearing or proceeding
before the commissioner, he shall file with the court his
Q: When is trial by commissioner mandatory? report in writing upon the matters submitted to him by the
order of reference. He shall attach in his report all exhibits,
A: affidavits, depositions, papers and the transcript, if any, of
1. Expropriation (Rule 67); the evidence presented before him (Sec. 9, Rule 32).
2. Partition (Rule 69);
3. Settlement of estate of a deceased person in case of Note: The commissioners report is not binding upon the court
which is free to adopt, modify, or reject, in whole or in part, the
contested claims; and
report. The court may receive further evidence or recommit the
4. Submission of accounting by executors or administrator. report with instructions (Sec. 11, Rule 32; Baltazar vs. Limpin, 49
Phil. 39).
REFERENCE BY CONSENT OR ORDERED ON MOTION
Q: What is the rule on notice of filing of the report?
Q: How may a case be referred to a commissioner?
A: Upon the filing of the report, the parties shall be
A: By written consent of both parties, the court may order notified by the clerk, and they shall be allowed ten (10)
any or all of the issues in a case to be referred to a days within which to signify grounds of objections to the
commissioner to be agreed upon by the parties or to be findings of the report, if they so desire. Objections to the
appointed by the court (Sec. 1, Rule 32). report based upon grounds which were available to the
parties during the proceedings before the commissioner,
Q: When may a case be referred to a commissioner if the other than objections to the findings and conclusions
consent of the parties are not given? therein set forth, shall not be considered by the court
unless they were made before the commissioner (Sec.10,
A: Rule 32).
1. When the trial of an issue of fact requires the
examination of a long account on either side; Note: GR: Notice of the filing of the report must be sent to the
2. When the taking of an account is necessary for the parties for the purpose of giving them an opportunity to present
information of the court before judgment; their objections (Santos vs. Guzman, 45 Phil. 646). The failure to
3. When a question of fact, other than upon the grant the parties, in due form, this opportunity to object, may, in
pleadings, arises upon motion or otherwise, in any some instances, constitute a serious error in violation of their
substantial rights (Govt. vs. Osorio, 50 Phil. 864).
stage of a case; or
4. For carrying a judgment or order into effect (Sec. 2, XPN: The rule, however, is not absolute. In Manila Trading and
Rule 32). Supply Co. vs. Phil. Labor Union, 71 Phil. 539, it was ruled that
although the parties were not notified of the filing of the
POWERS OF THE COMMISSIONER commissioners reports, and the court failed to set said report for
hearing, if the parties who appeared before the commissioner
Q: What are the powers of a commissioner? were duly represented by counsel and given an opportunity to be
heard, the requirement of due process has been satisfied, and a
decision on the basis of such report, with the other evidence of the
A:
case is a decision which meets the requirements of fair and open
1. Power to regulate the proceedings in every hearing hearing.
before him;
2. Do all acts and take all measures necessary or proper Q: What should be heard during the commissioners
for the efficient performance of his duties under the report hearing?
order of reference;
3. Issue subpoenas ad testificandum and duces tecum; A: In the hearing to be conducted on the commissioners
4. Swear witnesses; and report, the court will review only so much as may be drawn

87 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

in question by proper objections. It is not expected to passengers of the ill-fated bus. Consequently, Nestor, son
rehear the case upon the entire record (Kreidt vs. of Nilo, filed a complaint against ABS Co. for damages.
McCullough and Co., 37 Phi. 474). After Nestor had rested his case, ABS Co. filed a demurrer
to evidence, contending that Nestor's evidence is
DEMURRER TO EVIDENCE insufficient because it did not show (1) that ABS Co. was
negligent and (2) that such negligence was the proximate
Q: When may a party to the case move for dismissal based cause of the collision. Should the court grant or deny
on insufficiency of evidence? defendant's demurrer to evidence? Reason briefly. (2004
Bar Question)
A: After the plaintiff has completed the presentation of his
evidence, the defendant may move for dismissal on the A: No, the court should not grant defendants demurrer to
ground that upon the facts and the law the plaintiff has evidence. Under the Rules of Court, after the plaintiff has
shown no right to relief. If his motion is denied, he shall completed the presentation of his evidence, the defendant
have the right to present evidence. If the motion is granted may move for dismissal on the ground that upon the facts
but on appeal the order of dismissal is reversed he shall be and the law the plaintiff has shown no right to relief. Here,
deemed to have waived the right to present evidence Nestor has shown that he is entitled to the relief he is
(Sec.1, Rule 33). asking for. ABS Co. is a common carrier. Under Article 1756
of the Civil Code, in case of death of or injuries to
passengers, common carriers are presumed to have been at
Motion for Demurrer Motion for Demurrer fault or to have acted negligently, unless they prove that
Denied Granted but Reversed they observed extraordinary diligence. Proof that the
on Appeal defendant was negligent and that such negligence was the
Denial is interlocutory, Order of the court is an proximate cause of the collision is not required. Thus,
hence, not appealable. adjudication on the without proof that ABS Co. has exercised extraordinary
Sec. 1, Rule 36 (that merits. Hence, the diligence, the presumption of negligence stands.
judgment should state requirement in Sec. 1,
clearly and distinctly the Rule 36 should be GROUND
facts and the law on complied with.
which it is based), will The only ground for demurrer to evidence is upon showing
not apply. that upon the facts and the law, the plaintiff has shown no
right to relief.
Q: Distinguish a demurrer to evidence from a motion to
dismiss EFFECT OF DENIAL

A: Q: What are the effects of denial of demurrer to evidence?

Motion to Demurrer to
Dismiss Evidence A:
(Rule 16) (Rule 33) 1. The defendant shall have the right to present his
evidence (Sec. 1, Rule 33). This means that the denial
After the plaintiff
of the demurrer to evidence does not deprive the
Before filing of rests its case or
defendant the opportunity to adduce evidence in his
When answer after the completion
behalf
to file of the presentation
2. The court shall set the date for the reception of the
of evidence
defendants evidence-in-chief. It should not proceed to
The 10 grounds That upon the facts
grant the relief demanded by the plaintiff (Northwest
Grounds enumerated in and the law, the
Airlines, Inc. vs. Court of Appeals, 284 SCRA 408).
Rule 16 plaintiff has shown
3. An order denying a demurrer to evidence is not
no right to relief
appealable because it is interlocutory
The defendant
If may file his The defendant may Note: It can be subject to petition for certiorari in case of
denied responsive present his grave abuse of discretion or an oppressive exercise of judicial
pleading. evidence. authority (Katigbak vs. Sandiganbayan, 405 SCRA 558).
The complaint The complaint may
may be refiled NOT be filed. The 4. A party who files a demurrer to evidence that is
depending on remedy of the subsqequently denied in an election case cannot insist
If the ground of plaintiff is to appeal on the right to present evidence. The provision of the
granted dismissal.* from the dismissal. Rules governing demurrer to evidence does not apply
(Riano, Civil Procedure: A Restatement for the Bar, p. 399, to an election case (Gementiza vs. COMELEC, 353 SCRA
2009 ed.) 724). The Rules, under the express dictum in section 4
of Rule 1 shall not apply to election cases, land
Q: ABS Co. is the operator of several buses. One of the registration, cadastral, naturalization and insolvency
buses owned by ABS Co. rammed with a dump truck proceedings (Riano, Civil Procedure: A Restatement
causing the instantaneous death of Nilo, one of the for the Bar, p. 400, 2009 ed.).

UNIVERSITY OF SANTO TOMAS 88

2013 GOLDEN NOTES
 CIVIL PROCEDURE

EFFECT OF GRANT dismissal of the order of

case dismissal due to
Q: What are the effects of granting the demurrer to (Sec. 1, Rule 33) the
evidence? constitutional
prohibition
A: against double
1. The case shall be dismissed. jeopardy
The Defendant The Defendant
Note: The plaintiff may file an appeal and if that appeal was may proceed to may adduce his
granted (reversed the order of dismissal), the defendant loses his adduce his evidence only if
right to present evidence (Sec.1, Rule 33; Republic vs. Tuvera, G.R.
If denied evidence the demurrer is
No. 148246, February 16, 2007).
filed with leave
of court.
2. Upon appeal, the appellate court reversing the order
granting the demurrer should not remand the case to
If there was no
the trial court. Instead, it should render judgment
leave of court,
based on the evidence submitted by the plaintiff
accused can no
(Radiowealth Finance Corporation vs Del Rosario, 335
longer present
SCRA 288).
his evidence and
submits the case
WAIVER OF RIGHT TO PRESENT EVIDENCE
for decision
based on the
Q: When is there a waiver of right to present evidence?
prosecutions
evidence (Sec.
A: If the demurrer is granted but on appeal the order of
23, Rule 119)
dismissal is reversed, the defendant is deemed to have
If plaintiff
waived his right to present evidence (Sec.1, Rule 33).
appeals and
If the judgment is If the court finds
DEMURRER TO EVIDENCE IN A CIVIL CASE VERSUS
plaintiff reversed by the the prosecutions
DEMURRER TO EVIDENCE IN A CRIMINAL CASE
appeals appellate court, evidence
from the it will decide the insufficient, it
Q: What is the distinction between demurrer to evidence
order of case on the basis will grant the
in a civil case and in a criminal case? (2007 Bar Question)
dismissal of the plaintiffs demurrer by
evidence with rendering
A:
the consequence judgment
Civil Case Criminal Case
that the acquitting the
How filed
defendant accused.
After the The court may
already loses his Judgment of
plaintiff dismiss the
right to present acquittal is not
has completed action on the
evidence. No res appealable
the presentation ground of
judicata in because double
of his evidence, insufficiency of
dismissal due to jeopardy sets in.
the defendant evidence (1) on
demurrer.
may move for its own initiative
dismissal on the after giving the
JUDGMENTS AND FINAL ORDERS
ground that prosecution the
upon the facts opportunity to
Q: What is a judgment?
and the law the be heard or (2)
plaintiff has upon demurrer
A: It is the final ruling by a court of competent jurisdiction
shown no right to evidence filed
regarding the rights or other matters submitted to it in an
to relief (Sec. 1, by the accused
action or proceeding (Macahilig vs. Heirs of Garcia M.
Rule 33). with or without
Magalit, 344 SCRA 838).
leave of court
(Sec. 23, Rule
It is the courts official and final consideration and
119)
determination of the respective rights and obligations of
Leave of Not required With or Without
the parties (46 AM Jur 2d, Judgments SS1).
court (Sec. 23, Rule
119, Rules of Note: Judgment is normally synonymous with decision (Tung
Criminal Chin Hui vs. Rodriguez, 340 SCRA 765).
Procedure)
The Plaintiff may The Plaintiff
If appeal from the cannot make an
granted order of appeal from the

89 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: How is a final judgment understood?
A: It may be understood in two senses:
1. Judgment that disposes of a case in a manner that leaves
nothing more to be done by the court in respect
thereto. In this sense, a final judgment is distinguished
from an interlocutory order which does not finally
terminate or dispose of the case. It has also the effect of
ending the litigation, and an aggrieved party may then
appeal from the judgment.
2. Judgment that is no longer appealable and is already
capable of being executed because the period for
appeal has elapsed without a party having perfected an
appeal, or it has already been resolved by a highest
possible tribunal. In this sense, the judgment is
commonly referred to as one that is final and executory
(Riano, Civil Procedure, 2011 ed.).
Q: Can courts act upon facts and issues not pleaded by the
parties?
A: No. It is vital to keep in mind that in the process of
rendering judgment or in resolving controversies, courts
can only consider facts and issued pleaded by the parties.
Courts, as well as magistrates presiding over them are not
omniscient. They can only act on the facts and issues
presented before their own personal knowledge for
evidence. Nor may they take notice of matters except those
expressly provided as subjects of mandatory judicial notice
(Social Justice Society vs. Atienza, G.R. No. 156052, Feb. 13,
2008).
Q: What are the kinds of judgment?
A:
1. Judgment upon compromise It is one conferred on the
basis of a compromise agreement entered into between
the parties.
2. Judgment by confession It is one rendered by the
court when a party expressly agrees to the other partys
claim or acknowledges the validity of the claim against
him.
3. Judgment upon the merits It is one that is rendered
after consideration of the evidence submitted by the
parties during the trial of the case.
4. Clarificatory judgment It is rendered to clarify an
ambiguous judgment or one difficult to comply with.
5. Judgment nunc pro tunc (Now for then) A judgment
intended to enter into the record the acts which had
already been done, but which do not appear in the
records. Its only function is to record some act of the
court which was done at a former time, but which was
not then recorded, in order to make the record speak
the truth, without any changes in substance or any
material respect.
6. Judgment sin perjuicio Judgment without a statement
of the facts in support of its conclusion to be later
supplemented by the final judgment. This is not
allowed.
7. Judgment by default (Sec. 3, Rule 9) Rendered by the
court following a default order or after it received, ex
parte, plaintiffs evidence.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
8. Judgment on the pleadings (Rule 34) Proper when an
answer fails to tender an issue because of a general or
insufficient denial of the material allegations of the
complaint or when the answer admits the material
allegations of the adverse party's pleading.
9. Summary judgment (Rule 35) One granted by the
court for the prompt disposition of civil actions wherein
it clearly appears that there exists no genuine issue or
controversy as to any material fact.
10. Several judgment (Sec. 4, Rule 36) It is one rendered
by a court against one or more defendants and not
against all of them, leaving the action to proceed
against the others.
11. Separate judgment (Sec. 5, Rule 36) It is one rendered
disposing of a claim among several others presented in
a case, after a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of
said claim.
12. Special judgment (Sec. 11, Rule 39) One which can
only be complied with by the judgment obligor because
of his personal qualifications or circumstances or one
that requires the performance of an act other than:
a. Payment of money; and
b. Sale of real and personal property.
13. Judgment for specific acts (Sec. 10, Rule 39)
Applicable in cases of:
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; or
e. Delivery of personal property.
14. Judgment on demurrer to evidence (Rule 33) A
judgment rendered by the court dismissing a case upon
motion of the defendant, made after plaintiff has rested
his case, on the ground that upon the facts presented
by the plaintiff and the law on the matter, plaintiff has
not shown any right to relief.
15. Conditional judgment It is one the effectivity of which
depends upon the occurrence or non-occurrence of an
event.
16. Final judgment One which disposes of the whole
subject matter or terminates the particular proceedings
or action, leaving nothing to be done by the court but to
enforce by execution what has been determined.
Q: Distinguish several judgments from separate
judgments.
A:
Several Judgment Separate Judgment
Proper where the liability Proper when more
of each party is clearly than one claim for
separable and distinct relief is presented in
from his co-parties such an action and a
that the claims against determination as to
each of them could have the issues material to
been the subject of a the claim has been
separate suit, and the made. The action
judgment for or against shall proceed as to
one of them will not the remaining claims.
90
 CIVIL PROCEDURE

necessarily affect the JUDGMENT WITHOUT TRIAL

other.
Q: What are the instances when there can be a judgment
Note: A several judgment is without a trial?
not proper in actions against
solidary debtors. A:
1. Where the pleadings of the parties tender no issue at
all, a judgment on the pleadings may be directed by
Q: Is a judgment on compromise a judgment on the the court (Rule 34);
merits? 2. Where from the pleadings, affidavits, depositions and
other papers, there is actually no genuine issue, the
A: Yes. It has the effect of res judicata and is immediately court may render a summary judgment (Rule 35);
executory and not appealable. But it may be set aside on 3. Where the parties have entered into a compromise or
grounds provided under Art. 2038 of the Civil Code (e.g. an amicable settlement either during the pre-trial or
mistake, fraud, violence, intimidation, undue influence or while the trial is in progress (Rule 18; Art. 2028, NCC);
falsity of documents) (Aromin v. Floresca, G.R. No. 160994, 4. Where the parties agree in writing, upon the facts
July 27, 2006). involved in the litigation, and submit the case for
judgment on the facts agreed upon, without the
Q: Distinguish judgment upon compromise from judgment introduction of evidence. If however, there is no
by confession. agreement as to all the facts in the case, trial may be
held only as to the disputed facts (Sec. 6, Rule 30)
A: 5. Where the complaint has been dismissed with
Judgment Upon Judgment By prejudice (Sec. 5, Rule 16; Sec. 3, Rule 17; last. par.,
Compromise Confession Sec. 5, Rule 7);
The provisions and An affirmative and 6. Where the civil case falls under the operation of the
terms are settled and voluntary act of the Rules on Summary Procedure (Rule 17);
agreed upon by the defendant himself. The 7. When the case falls under the Rule on Small Claims.
parties to the action, court exercises a certain
and which is entered in amount of supervision Q: In a complaint for recovery of real property, Ryan
the record with the over the entry of averred, among others, that he is the owner of the said
consent of the court. judgment. property by virtue of a deed of sale executed by the
Joseph in his favor. Copy of the deed of sale was
appended to the complaint as Annex "A" thereof. In his
Q: What are the kinds of judgment by confession? unverified answer, Joseph denied the allegation
concerning the sale of the property in question, as well as
A: the appended deed of sale, for lack of knowledge or
1. Judgment by cognovit actionem - a written confession information sufficient to form a belief as to the truth
of an action by the defendant, subscribed but not thereof. Is it proper for the court to render judgment
sealed, and irrevocably authorizing any attorney of any without trial? Explain. (2005 Bar Question)
court of record to confess judgment and issue
execution usually for the sum named. A: Yes, a judgment on the pleadings can be rendered by the
It is given in order to save expense and differs from a court without need of a trial. Defendant cannot deny the
warrant of attorney, which is given to an expressly sale of the property for lack of knowledge or information
designated attorney before the commencement of any sufficient to form a belief as to the truth thereof. The
action and is under seal. answer amounts to an admission. The defendant must aver
or state positively how it is that he is ignorant of the facts
2. Confession relicta verificatione After pleading and alleged. Moreover, the genuineness and due execution of
before trial, the defendant both confessed the the deed of sale can only be denied by the defendant under
plaintiffs cause of action and withdrew or abandoned oath and failure to do so is an admission of the deed.
his plea or other allegations, whereupon judgment Hence, a judgment on the pleadings can be rendered by the
was entered. court without need of a trial.

Note: Warrants of attorney to confess judgment are not CONTENTS OF A JUDGMENT

authorized nor contemplated by our law. We are further of
the opinion that provisions in notes authorizing attorneys to
appear and confess judgments against makers should not be
recognized in this jurisdiction by implication and should only
be considered as valid when given express legislative sanction
(PNB v. Manila Oil Refining & By-Products Company, Inc, G.R.
No. L-18103, June 8, 1922).
Q: What are the two parts of a judgment?
A:
1. Ratio decidendi the body of judgment
2. Fallo The dispositive portion of the judgment. It is also
the part of judgment that is subject to execution
because this is the judgment of the court itself, i.e. if
the petition is granted or denied and the relief
granted.

91 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: How should a conflict between the parts of a decision
be resolved?
A: GR: If there is a conflict between the ratio decidendi and
the fallo, the fallo should prevail because it is the final
order while the ratio decidendi is merely a statement
ordering nothing.
XPN: If there is a mere mistake in the fallo and the the ratio
decidendi is so clear that it states a conclusion, the latter
should prevail (Poland Industrial Limited vs. National
Development Company, 467 SCRA 500).
Q: What is the difference between a judgment and an
opinion of the court? (2006 Bar Question)
A: The judgment or fallo is the final disposition of the court
which is reflected in the dispositive portion of the decision
while the opinion of the court is contained in the body of
the decision that serves as a guide or enlightenment to
determine the ratio decidendi of the decision.
Q: What is an obiter dictum?
A: It is an opinion expressed by a court, which is not
necessary to the decision of the case before it. It is neither
enforceable as a relief nor a source of a judicially actionable
claim.
Q: What are the requisites of a valid judgment?
A: The:
1. court or tribunal must be clothed with authority to
hear and determine the matter before it;
2. court must have jurisdiction over the parties and the
subject matter;
3. parties must have been given an opportunity to
adduce evidence in their behalf;
4. evidence must have been considered by the tribunal in
deciding the case;
5. judgment must be in writing, personally and directly
prepared by the judge;
Note: A verbal judgment is, in contemplation of law, not in
esse, therefore, ineffective (Corus vs. Sandiganbayan, 442
SCRA 294)
6. judgment must state clearly the facts and the law on
which it is based, signed by the judge and filed with
the clerk of court (Sec. 1, Rule 36).
Note: This requirement refers to decisions and final orders on
the merits not to those resolving incidental matters. (Pablo-
Gualberto vs. Gualberto, 461 SCRA 450)
Q: After plaintiff, in an ordinary civil action before the
RTC, has completed presentation of his evidence,
defendant without prior leave of court moved for
dismissal of plaintiff's complaint for insufficiency of
plaintiff's evidence. After due hearing of the motion and
the opposition thereto, the court issued an order, reading
as follows: "The Court hereby grants defendant's motion
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
to dismiss and accordingly orders the dismissal of
plaintiff's complaint, with the costs taxed against him. It is
so ordered." Is the order of dismissal valid? May plaintiff
properly take an appeal? (2004 Bar Question)
A: The order or decision is void because it neither stated
the findings of fact and law as required by Sec. 14, Art. VIII
of the Constitution and Sec. 1, Rule 36 of the Rules of Court
nor adopts by reference the factual findings by the lower
court. Being void, appeal is not available. The proper
remedy is certiorari under Rule 65.
Q: What is a memorandum decision?
A: Decisions which adopt by reference the findings of facts
and conclusions of law of inferior tribunals. In this
jurisdiction, it has been held that memorandum decisions
do not transgress the constitutional requirement in Article
VIII, Section 14, on clearly and distinctly stating the facts
and the law on which the decision is based. Nonetheless, it
would be more prudent for a memorandum decision not to
be simply limited to the dispositive portion but to (1) state
the nature of the case, (2) summarize the facts with
references to the record, and (3) contain a statement of the
applicable laws and jurisprudence and the tribunals
assessments and conclusions on the case. This practice
would better enable a court to make an appropriate
consideration of whether the dispositive portion of the
judgment sought to be enforced is consistent with the
findings of facts and conclusions of law made by the
tribunal that rendered the decision (Oil and Natural Gas
Commission v. Court of Appeals, G.R. No.
114323. September 28, 1999).
Q: What is an interlocutory order? (2006 Bar Question)
A: It is an order which decides some point or matter
between the commencement and end of the suit but is not
the final decision on the whole controversy. It leaves
something to be done by the court before the case is finally
decided on the merits.
Q: What is the remedy to question an improvident
interlocutory order?
A: File a petition for certiorari under Rule 65 not under Rule
45. A petition for review under Rule 45 is the proper mode
of redress to question only final judgments.
Note: One cannot appeal from an interlocutory order.
JUDGMENT ON THE PLEADINGS
Q: What are the grounds for judgment on the pleadings?
(1999 Bar Question)
A:
1. The answer fails to tender an issue because of:
a. General denial of the material allegations of the
complaint;
b. Insufficient denial of the material allegations of
the complaint.
92
 CIVIL PROCEDURE

2. The answer admits material allegations of the adverse Evidence is not received Evidence is received.
partys pleadings (Sec. 1, Rule 34). as the same is based on
the pleadings alone.
Q: When is judgment on the pleadings not applicable? Decision is based on the Decision is based on the
allegations in the evidence presented.
A: pleadings.
1. Actions for declaration of nullity of marriage, Generally available only Available to plaintiff.
annulment of marriage or for legal separation to the plaintiff, unless
2. Unliquidated damages the defendant presents
3. Insufficiency of fact amendment is the remedy a counterclaim.

Q: What is the effect when the plaintiff moves for Q: Distinguish motion for judgment on the pleadings from
judgment on the pleadings and defendants interpose no motion to dismiss
objection?
A:
A: The latter is deemed to have admitted the truth of the Motion for Judgment Motion to Dismiss
allegations of the complaint, so that there is no longer any on the Pleadings
necessity for the plaintiff to submit evidence of his claims Filed by the plaintiff if Filed by a defendant to
(Phil. Advertising counselors, Inc. v. Revilla, G.R. No. L- the answer raises no a complaint,
31869, Aug. 8, 1973). issue. counterclaim, cross-
claim or third-party
Q: Sunbanun, owner of a residential house, entered into a complaint.
lease agreement with Go, which the latter subleased. 3
months before the expiration of the lease agreement, Note: If the complaint states no cause of action, a motion to
Sunbanun, alleging that Go violated the agreement dismiss should be filed and not a motion for judgment on the
because the latter subleases the premises, said that she is pleadings.
terminating the lease. Thereafter, Go filed an action for
damages against Sunbanun. At the pre-trial, Sunbanun SUMMARY JUDGMENTS
moved for the case to be submitted for judgment on the
pleadings considering that the only disagreement Q: When is summary judgment (accelerated judgment)
between the parties was the correct interpretation of the proper?
lease contract. Go did not object to the motion. The trial
court rendered judgment in favor of Go. Is judgment on A: It is proper where, upon motion filed after the issues had
the pleadings proper? been joined and on the basis of the pleadings and papers
filed, the court finds that there is no genuine issue as to any
A: Yes. The trial court has the discretion to grant a motion material fact except as to the amount of damages (Ley
for judgment on the pleadings filed by a party if there is no Construction & Dev. Corp. v. Union Bank of the Phil., G.R.
controverted matter in the case after the answer is filed. No. 133801, June 27, 2000).

The instant case is unusual because it was Sunbanun, and
not the claimant Go, who moved for a judgment on the
pleadings during the pre-trial. Sunbanun, in moving for a
judgment on the pleadings without offering proof as to the
truth of her own allegations and without giving Go the
opportunity to introduce evidence, is deemed to have
admitted the material and relevant averments of the
complaint, and to rest her motion for judgment based on
the pleadings of the parties (Sunbanun v. Go, G.R. No.
163280, Feb. 2, 2010).
Q: Distinguish judgment on the pleadings from judgment
by default.
Note: A claimant may at any time after the pleading in answer
thereto has been served, and the defendant may, at any time,
move with supporting affidavits, depositions or admissions for a
summary judgment in his favor upon all or any part thereof. (Secs.
1 and 2, Rule 35)
Q: What are the requisites of summary judgments?
A:
1. The motion shall be served at least ten (10) days
before the time specified for the hearing. The adverse
party may serve opposing affidavits, depositions, or
admissions at least three (3) days before the hearing.

Note: The hearing contemplated (with 10-day notice) is for

A:
the purpose of determining whether the issues are genuine
Judgment on the Judgment by Default or not, not to receive evidence on the issues set up in the
Pleadings pleadings. The matter may be resolved, and usually is, on the
The defendant The defendant did not basis of affidavits, depositions, admissions. (Galicia v. Polo, L-
answered, but did not file an answer. 49668, Nov. 14, 1989; Carcon Devt. Corp. vs. CA, GR 88218,
tender an issue or Dec. 17, 1989)
admitted the material
allegations in the 2. Except for the amount of damages, there must be no
complaint. genuine issue as to any material fact

93 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Note: There is genuine issue when an issue of fact is FOR THE DEFENDANT
presented which requires presentation of evidence as
distinguished from a sham, fictitious, contrived or false claim. A party against whom a claim, counterclaim or cross-claim
(Monterey Foods Corp. v. Eserjose, G.R. No. 153126, Sept. 11,
is asserted or a declaratory relief is sought may, at any
2003)
time, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor as to all or
3. The party presenting the motion for summary
any part thereof (Sec. 2, Rule 35).
judgment must be entitled to a judgment as a matter
of law.
Q: What are the bases of summary judgment?
Q: Garcia, et. al. filed a complaint for quieting of title with
A:
writ of preliminary injunction with the RTC against Eland
1. Affidavits made on personal knowledge;
Philippines, Inc. The latter found out that the lot was the
2. Depositions of the adverse party or a third party under
subject of a land registration proceeding that had already
Rule 23;
been decided by the same court. Eland thus filed a motion
3. Admissions of the adverse party under Rule 26; and
to dismiss. The motion was denied and the trial court
4. Answers to interrogatories under Rule 25. All intended
enjoined Eland to file its answer. Thereafter, Garcia et. al.
to show that:
moved to declare Eland in default which was granted and
a. There is no genuine issue as to any material
the former were allowed to present evidence ex parte.
fact, except damages which must always be
After the many motions initiated by Eland were denied,
proved; and
Garcia et. al. moved for summary judgment. The motion
b. The movant is entitled to a judgment as a
was granted and the trial court decided in Garcias et. al
matter of law.
favor. Is summary judgment proper?
Q: Who has the burden of demonstrating the absence of
A: No. Trial courts have limited authority to render
genuine issue of fact?
summary judgments and may do so only when there is
clearly no genuine issue as to any material fact.
A: The party who moves for summary judgment has the
burdent of demonstrating clearly that the issue posed in
Eland is already the registered owner of the parcel of land
the complaint is patently unsubstantial so as not to
in question, pursuant to a decree of registration based on
constitue a genuine issue for trial. (Riano, Civil Procedure: A
the ruling of the same court that granted the summary
Restatement for the Bar, p. 552, 2011 ed.).
judgment. By granting the summary judgment, the trial
court has in effect annulled its former ruling based on a
WHEN THE CASE IS NOT FULLY ADJUDICATED
claim of possession and ownership of the same land for
more than 30 years without the benefit of a full-blown
Q: What happens when a case is not fully adjudicated?
trial. The fact that Garcia et. al. seek to nullify the original
certificate of title issued to Eland on the claim that the
A: If on motion, judgment is not rendered upon the whole
former were in possession of the same land for a number of
case or for all the reliefs sought and a trial is necessary, the
years, is already a clear indicium that a genuine issue of a
court at the hearing of the motion, by examining the
material fact exists. (Eland Philippines, Inc. v. Azucena
pleadings and the evidence before it and by interrogating
Garcia et. al, G.R. No. 173289, Feb. 17, 2010).
counsel shall ascertain what material facts exist without
substantial controversy and what are actually and in good
Q: What are the important features of Rule 35?
faith controverted. It shall thereupon make an order
specifying the facts that appear without substantial
A:
controversy, including the extent to which the amount of
1. There is no limitation as to the type of action in which
damages or other relief is not in controversy, and directing
the remedy is available (claim, counterclaim, cross
such further proceedings in the action as are just. The facts
claim, declaratory relief);
so specified shall be deemed established, and the trial shall
2. The remedy is available to both parties alike; and
be conducted on the controverted facts accordingly (Sec. 4,
3. The summary judgment procedure has been coupled
Rule 35).
with deposition-discovery procedure (Feria & Noche,
Civil Procedure Annotated, p. 604, 2001 ed) Note: A partial summary judgment is not a final or appealable
judgment (Province of Pangasinan v. Court of Appeals, 220 SCRA
FOR THE CLAIMANT 726).

A party seeking to recover upon a claim, counterclaim, or
cross-claim or to obtain a declaratory relief may, at any
time after the pleading in answer thereto has been served,
move with supporting affidavits, depositions or admissions
for a summary judgment in his favor upon all or any part
thereof (Sec. 1, Rule 35).
Q: After Geoff has served and filed his answer to John's
complaint for damages, John served and filed a motion for
a summary judgment in his favor upon all of his claims.
Geoff served and filed his opposition to the motion. After
due hearing, the court issued an order (1) stating that the
court has found no genuine issue as to any material fact
and thus concluded that John is entitled to judgment in his
favor as a matter of law except as to the amount of

UNIVERSITY OF SANTO TOMAS 94

2013 GOLDEN NOTES
 CIVIL PROCEDURE
damages recoverable, and (2) accordingly ordering that
John shall have judgment summarily against Geoff for
such amount as may be found due John for damages, to
be ascertained by trial on October 7, 2004, at 8:30 in the
morning. May Geoff properly take an appeal from said
order? Or, may Geoff properly challenge said order thru a
special civil action for certiorari? (2004 Bar Question)
A: The plaintiff may not properly take an appeal from said
order because it is an interlocutory order, not a final and
appealable order. It does not dispose of the action or
proceeding. Partial summary judgments are interlocutory.
There is still something to be done, which is the trial for the
adjudication of damages, but the defendant may properly
challenge said order thru a special civil action for certiorari
under Rule 65 on the ground of abuse of discretion
amounting to lack or excess of jurisdiciton.
AFFIDAVITS AND ATTACHMENTS
Q: What are the rules on affidavits and attachments on
summary judgments?
A: Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated
therein. Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto or
served therewith (Sec. 5, Rule 35).
Should it appear to its satisfaction at any time that any of
the affidavits presented pursuant to the Rules are
presented in bad faith, or solely for the purpose of delay,
the court shall forthwith order the offending party or
counsel to pay to the other party the amount of the
reasonable expenses which the filing of the affidavits
caused him to incur, including attorneys fees. It may, after
hearing, further adjudge the offending party or counsel
guilty of contempt (Sec. 6, Rule 35).
JUDGMENT ON THE PLEADINGS VERSUS SUMMARY
JUDGMENTS
Q: Distinguish summary judgment, judgment on the
pleadings and judgment by default(1989 Bar Question)
A:
Summary Judgment Judgment on the Pleadings
(Rule 35) (Rule 34)
Based on the pleadings, Based solely on the
depositions, admissions and pleadings.
affidavits.
Available to both plaintiff Generally available only to
and defendant. the plaintiff, unless the
defendant presents a
counterclaim.
There is no genuine issue The answer fails to tender
between the parties, i.e. an issue or there is an
there may be issues but admission of material
these are irrelevant. allegations.
10-day notice required. 3-day notice for motion
required
May be interlocutory (i.e. On the merits
partial summary judgments)
or on the merits.
Note: Even if the answer does not tender an issue, and therefore a
judgment on the pleadings is not proper, a summary judgment may
still be rendered if the issues tendered are not genuine, are shams,
fictitious, contrived up, set-up in bad faith, patently unsubstantial.
(Vergara v. Suelto, G.R. No. L-74766, December 21, 1987)
RENDITION OF JUDGMENTS AND FINAL ORDERS
Q: What is a rendition of judgment?
A: Rendition of judgment is the filing of the same with the
clerk of court. Even if the judgment has already been put in
writing and signed, it is still subject to amendment if it has
not yet been filed with the clerk of court and before its
filing does not yet constitute the real judgment of the
court. (Ago v. CA, 6 SCRA 530)
Q: What is promulgation?
A: It is the process by which a decision is published,
officially announced, made known to the public or
delivered to the clerk of court for filing, coupled with notice
to the parties or their counsel (Herrera, Civil Procedure, Vol.
II, p. 151. 2007 ed.).
Note: In civil cases, a judgment is rendered while in criminal cases
and election cases, a judgment is rendered and promulgated
Q: In an election contest between Mr. Palma and Mr.
Monsod, the COMELEC en banc unanimously resolved the
dispute in favor of Monsod. COMELEC Commissioner Garci
participated at the deliberation of the said resolution.
However, when the resolution on the said dispute was
promulgated by COMELEC en banc, Commissioner Garci
was no longer a member of the COMELEC en banc. Mr.
Palma contends that the decision of the COMELEC en banc
was null and void because Commissioner Garci, who took
part in the resolution of the case, was no longer
connected with COMELEC. Is Mr. Palma correct?
A: No. A decision becomes binding only after it is validly
promulgated. Consequently, if at the time of the
promulgation of a decision or resolution, a member of the
collegiate court who had earlier signed or registered his
vote has vacated his office, his vote is automatically
withdrawn or cancelled. The Resolution, in this case,
remains valid because it is still supported by a majority of
the COMELEC en banc (Benwaren v. COMELEC, G.R. No.
169393, Apr. 7, 2006).
Q: How should a judgment be prepared?
A: A judgment or final order determining the merits of the
case shall be in writing personally and directly prepared by
the judge, stating clearly and distinctly the facts and the law
on which it is based, signed by him, and filed with the clerk
of the court (Sec. 1, Rule 36).
95 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: Are courts required to state in its decision all the facts
found in the records?
A: No. While it is required that decisions, no matter how
consicely written, be distinctly and clearly set forth the
facts and the law upon which they are based (Naguiat v.
NLRC, 269 SCRA 564), the rule however, does not require
that the court shall state in its decision all the facts found in
the records (People v. Derpo, 168 SCRA 447). A decision
need not be a complete recital of the evidence presented.
So long as the factual and legal basis is distinctly and clearly
set forth, the judgment is valid (Chan v. Court of Appeals,
457 SCRA 502).
XPN: Any of the parties moves that his case be decided by
the judge who substantially heard the evidence and before
whom the case was submitted for decision (Valentin v. Sta.
Maria, G.R. No. L-30158, Jan. 17, 1974).
Note: A decision penned by a judge after his retirement cannot be
validly promulgated and cannot acquire a binding effect. In like
manner, a decision penned by a judge during his incumbency
cannot be validly promulgated after his retirement. (Nazareno v.
CA, G.R. No. 111610, Feb. 27, 2002)

Note: A decision that does not clearly and distinctly state the facts
and the law on which it is based leaves the parties in the dark as to
how it was reached and is specially prejudicial to the losing party,
who is unable to pinpoint the possible errors of the court for
review by a higher tribunal. (Miguel v. JCT Group, Inc., 453 SCRA
529)

Q: Are resolutions disposing of a motion to dismiss

required to distinctly and clearly state the facts and law
upon which they are based?

A: Yes. It is not only judgments which must distinctly and

clearly state the facts and the law upon which they are
based. Under Section 3 of Rule 16, it is required that the
resolutions disposing of a motion to dismiss shall state
clearly and distinctly the reasons therefore (Riano, Civil
Procedure: A Restatement for the Bar, p. 404, 2009 ed.).

Q: May a judgment be rendered based on issues not

raised?

A: GR: A judgment must conform to the pleading and the

theory of the action under which the case was tried. A
judgment going outside the issues and purporting to
adjudicate something on which the parties were not heard
is invalid. Therefore where a court enters a judgment or
awards relief beyond the prayer of the complaint or the
scope of its allegations the excessive relief is not merely
irregular but is void for want of jurisdiction, and is open to
collateral attack.

XPN: Such issues were tried with the express or implied

consent of the parties.

Q: Who shall decide a case?

A: GR: A case once raffled to a branch belongs to that

branch unless re-raffled or otherwise transferred to
another branch in accordance with the established
procedure. When the Presiding Judge of that branch to
which a case has been raffled or assigned is transferred to
another station, he leaves behind all the cases he tried with
the branch to which they belong. He does not take these
cases with him even if he tried them and the same were
submitted to him for decision. The judge who takes over
this branch inherits all these cases and assumes full
responsibility for them. He may decide them as they are his
cases.

UNIVERSITY OF SANTO TOMAS 96

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Q: Discuss the different scenarios that may happen after rendition of judgment.

A: Court Renders Decision

Losing Party

Within 15/30 days from notice of judgment:

Accepts decision appeal within 15/30 days
without further 1. Motion for reconsideration; or from notice of judgment
contest 2. Motion for new trial.

Judgment
becomes final Court grants
and executory. motion:
Court 1. Modifies
maintains decision;
decision or
2. Grants
new trial.
Entry of
judgment
Appeal

Q: When is a decision considered binding to the parties?

A: A judgment or order whether final or interlocutory does
not bind the parties until and unless notice thereof is duly
served on them by any of the modes prescribed by law. This
is so even if the order or judgment has in fact been orally
pronounced in the presence of the parties or a draft
thereof drawn up and signed and/or copy thereof somehow
read or acquired by any party.
Q: What is law of the case?
A: It is the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably
established as the controlling legal rule or decision between
the same parties in the same case continues to be the law
of the case, 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.
(Azuela v. CA, G.R. No. 122880, Apr. 12, 2006, citing Tigno v.
Aquino, G.R. No. 129416, Nov. 25, 2004)
Note: It is founded on the necessity for securing certainty and
stability in the law and does not require identity of or privity of
parties.
ENTRY OF JUDGMENT AND FINAL ORDER
Q: What is an entry of judgment?
A: The entry of judgment refers to the physical act
performed by the clerk of court in entering the dispositive
portion of the judgment in the book of entries of judgment
and after the same has become final and executory. The
record shall contain the dispositive portion of the judgment
or final order and shall be signed by the clerk of court, with
a certificate by said clerk that the judgment has already
become final and executory (Sec. 2, Rule 36).
Note: If no appeal or motion for new trial or reconsideration is filed
within the time provided in the Rules, the judgment or final order
shall forthwith be entered by the clerk in the book of entries of
judgments (Sec. 2, Rule 36).

Note: This rule does not apply to resolutions rendered in
connection with the case wherein no rationale has been
expounded on the merits of that action.
Q: What is the principle of stare decisis et non quieta
movere?
A: It holds that a point of law, once established by the court
(Supreme Court), will generally be followed by the same
court and by all courts of lower rank in subsequent cases
involving a similar legal issue. This proceeds from the legal
principle that, in the absence of powerful countervailing
considerations, like cases ought to be decided alike.
There are some proceedings the filing of which is reckoned from
the date of the entry of judgment: (a) the execution of a judgment
by motion is within five (5) years from the entry of the judgment
(Sec. 6, Rule 39); (b) the filing of a petition for relief must be filed
not more than 60 days from knowledge of the judgment and not
more than six (6) months from the entry of the judgment or final
order (Sec. 3, Rule 38).
Q: When does a judgment become final?
A: Upon lapse of the reglementary period to appeal, with
no appeal perfected within such period, does the decision
become final and executor (Sec. 1, Rule 39; Banco de Brasil

97 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

v. CA, G.R. Nos. 121576-78, June 16, 2000), and upon a final 2. The irregularity of its entry is apparent from the face
decision rendered by the Supreme Court. of the record.
Q: What is the effect of void judgments (doctrine of total
Q: May the courts amend a judgment after the same has nullity)?
become executory?
A: A void judgment is in legal effect no judgment. By it no
A: GR: No, when a judgment is final and executory, it rights are divested, no rights can be obtained. Being
becomes immutable and unalterable (Rule of immutability). worthless in itself, all proceeding founded upon it are
equally worthless. It neither binds nor bars any one. All acts
XPN: Courts may amend a judgment even if it has become performed under it and all claims flowing out of it are void.
executory in the following instances:
1. To correct clerical errors or to make nunc pro tunc Q: Jayson, a career service officer, was illegally dismissed
entries (Philippine Economic Zone Authority v. Borreta, from his position. Thus, Jayson filed a complaint for illegal
G.R. No. 142669, Mar. 15, 2006); dismissal with the Career Executive Service Board (CESB).
While the said complaint was pending before the CESB,
Note: A clerical error is one which does not involve an Jayson filed a petition for quo warranto with the CA
exercise of judicial functions. praying that he be reinstated to his former post. The CESB
rendered a decision finding that Jayson was illegally
2. To clarify an ambiguity which is borne out by and dismissed. The CA found that Jayson resigned and was not
justifiable in the context of the decision; illegally dismissed. Both decisions became final for failure
to appeal the same. Are the two decisions immutable and
Note: The remedy is to file a motion for clarificatory unalterable in view of their finality?
judgment.
A: No, neither decision is immutable nor unalterable. As a
3. Judgments for support, which can always be amended
rule, a decision that has acquired finality becomes
from time to time;
immutable and unalterable. A final judgment may no longer
4. Void judgment.
be modified in any respect, even if the modification is
meant to correct erroneous conclusions of fact and law;
Q: Distinguish amended or clarified judgment from
and whether it be made by the court that rendered it or by
supplemental decision.
the highest court in the land. In this case, however, to hold
that both decisions are immutable and unalterable would
A:
cause confusion and uncertainty (Collantes v. CA, G.R. No.
Amended or Clarified Supplemental 169604, Mar. 6, 2007).
Judgment Decision
It is an entirely new Does not take the Q: Can a judgment be penned by a judge who did not hear
decision and supersedes place of or the evidence?
the original judgment. extinguish the
original judgment. A: Yes, it is not necessary that the judge who heard the
Court makes a thorough Serves to bolster or evidence be the same judge who shall pen the decision. The
study of the original add to the original judge who originally tried the case may die, resign, be
judgment and renders judgment. disabled or transferred to another. In such an eventuality,
the amended and another judge has to continue and finish the trial.
clarified judgment only
after considering all the Q: What is the effect of a judgment or final order of a
factual and legal issues. tribunal of a foreign country having jurisdiction to render
the judgment or final order? (2007 Bar Question)
Q: What is the effect of amendment of judgment?
A:
A: The date of the amendment should be considered as the 1. If the judgment is on a specific thing, the judgment is
date of the decision for the computation of the period to conclusive upon the title to the thing;
perfect the appeal. 2. If the judgment is against a person, the judgment is
presumptive evidence of a right as between the
parties and their successor in interest by a subsequent
Q: May a judgment be attacked collaterally? title.

A: GR: The validity of a judgment or order of a court cannot Q: What are the grounds in assailing the judgment or final
be collaterally attacked. order of a foreign country? (2007 Bar Question)
XPN: It may be attacked collaterally on the following
A:
grounds:
1. Evidence of want of jurisdiction;
1. Lack of jurisdiction; or
2. Want of notice to the party;
3. Collusion;

UNIVERSITY OF SANTO TOMAS 98

2013 GOLDEN NOTES
 CIVIL PROCEDURE

4. Fraud; or
5. Clear mistake of fact or law.

POST JUDGMENT REMEDIES

Q: What are the available remedies to the aggrieved party

after rendition of judgment? (2006 Bar Question)

A: The remedies against a judgment may refer to those

remedies before a judgment becomes final and executory
and those remedies after the same becomes executory.

1. Before a judgment becomes final and executory, the

aggrieved party or losing party may avail of the
following remedies:
a. Motion for Reconsideration;
b. Motion for New Trial; and
c. Appeal

2. After the judgment becomes executory, the

aggrieved party or losing party may avail of the
following:
a. Petition for relief from judgment;
b. Action to annul judgment;
c. Certiorari; and
d. Collateral attack of a judgment.

MOTION FOR NEW TRIAL AND MOTION FOR RECONSIDERATION

GROUNDS;WHEN TO FILE

Q: Distinguish motion for new trial from motion for reconsideration

A:
MOTION FOR NEW TRIAL (MNT) MOTION FOR RECONSIDERATION
(MR)
Grounds
1. Extrinsic fraud, accident, mistake or excusable 1. The damages awarded are
negligence (FAME) which ordinary prudence could not excessive;
have guarded against and by reason of which the rights 2. The evidence is insufficient to
of the aggrieved party were impaired; or satisfy the decision or final
2. Newly discovered evidence, which could not with order; or
reasonable diligence, have been discovered and 3. The decision or final order is
produced at the trial, and which if presented, would contrary to law (Sec. 1, Rule 37).
probably alter the result (Sec. 1, Rule 37).
Requisites
A: A:
1. They shall be in writing, stating the ground or grounds 1. They shall be in writing, stating
therefore, a written notice of which shall be served by the ground or grounds
the movant on the adverse party. (Sec 2, Rule 37) therefore, a written notice of
2. Affidavit of merit setting forth the particular facts which shall be served by the
claimed to constitute a meritorious cause of action in movant on the adverse party.
case the ground relied upon is FAME; (Sec 2, Rule 37)
3. In case of newly discovered evidence: 2. Must point out specifically the
a. Affidavit of new witnesses; and conclusion of judgment;
b. Duly authenticated documents to be introduced. 3. Express reference to testimonial
or documentary evidence or to
provisions of law.
The requirements are mandatory and non-compliance therewith is fatal and renders the motion pro forma
or a mere scrap of paper and will not toll the reglementary period for appeal.
When to file
Within the period for taking an appeal or within 15 days after notice to the appellant of the judgment or
final order appealed from. Where a record on appeal is required the appellant shall file a notice of appeal

99 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

and a record on appeal within 30 days after notice of the judgment or final order. (Sec. 1, Rule 37) The
filing of a timely motion interrupts the period to appeal (Sec. 2, Rule 40; Sec. 3, Rule 41).

Note: No motion for extension of time to file a Motion for New Trial or Motion for Reconsideration shall be allowed
(Sec. 2, Rule 40).
Second motion may be allowed so long as based on grounds not Single motion rule
existing or available at the time the first motion was made (Sec. 5, No party shall be allowed a second
Rule 37). motion for reconsideration of a
judgment or final order (Sec. 5, Rule
37).

XPN: The Supreme Court may allow a

second MR in the higher interest of
justice by the Court en banc upon a
vote of at least two-thirds of its
actual membership. There is
reconsideration in the higher
interest of justice when the assailed
decision is not only legally
erroneous, but is likewise patently
unjust and potentially capable of
causing unwarranted and
irremediable injury or damage to
the parties.

A second motion for reconsideration

can only be entertained before the
ruling sought to be reconsidered
becomes final by operation of law or
by the Courts declaration.

In the Division, a vote of three

Members shall be required to elevate
a second motion for reconsideration
to the Court En Banc (Rule 15, Sec. 3,
A.M. No. 10-4-20-SC).
If denied, the remedy is to appeal from the judgment or final order (Sec. 9, Rule 37).
Both must be resolved within 30 days from the time it is submitted for resolution
Both are prohibited motions under Summary Procedure and Small Claims

Q: What happens if the motion is filed without the
required affidavits?
A: Non- compliance with the requirements of the Rules
would reduce the motion to a mere pro- forma motion. A
pro forma motion is one which does not satisfy the
requirements of the rules and one which will be treated as
a motion intended to delay the proceeding (Marikina
Development Corporation vs. Flojo, 251 SCRA 87).
Note: Under Sec. 2, Rule 37, a pro- forma motion shall not toll the
reglementary period of appeal.
Q: What are the grounds which makes the MR pro forma?
3. It failed to substantiate the alleged errors; or
4. It merely alleged that the decision in question was
contrary to law; or
5. The adverse party was not given due notice thereof
(Riano, Civil Procedure: A Restatement for the Bar, p.
429, 2009 ed.).
Q: What is a Motion for New Trial?
A. It is a motion for the trial court to set aside the
judgment or final order and grant a new trial (Riano, Civil
Procedure: A Restatement for the Bar, p.436, 2009 ed).
Q: What are the requisites of newly discovered evidence
as a ground for New Trial?

A: In cases where a motion for reconsideration was held to A:

be pro forma, the motion was so held because:
1. It was a second MR; or
2. It did not comply with the rule that a motion must
specify the findings and conclusions alleged to be
contrary to law or not supported by the evidence; or
1. The evidence was discovered after trial;
2. Such evidence could not have been discovered and
produced at the trial with reasonable diligence; and
3. Such evidence is material, not merely cumulative,
corrobative or impeaching, and is of such weight that if

UNIVERSITY OF SANTO TOMAS 100

2013 GOLDEN NOTES
 CIVIL PROCEDURE
admitted would probably change the judgment (BERRY
RULE) (CIR v. A. Soriano Corporation, GR No. 113703,
Jan. 31, 1997).
Note: These requisites are also known as the Berry rule, which
originated in the case of Berry vs. State of Georgia.
Q: Is a newly discovered evidence required to be newly
created evidence?
A: No, newly discovered evidence need not be newly
created evidence. It may and does commonly refer to
evidence already in existence prior or during trial but which
could not have been secured and presented during the trial
despite reasonable diligence on the part of the litigant
(Tumang v. Court of Appeals, G.R. Nos. 82346-47, April 17,
1989).
A: The purpose of a motion for reconsideration is precisely
to request the court or the quasi- judicial body to take a
second look at its earlier judgment and correct any errors it
may have committed therein (Reyes v. Pearlbank Securities,
GR No. 171435, July 30, 2008).
Q: When may there be partial reconsideration?
A: If the court finds that a motion affects the issues of the
case as to only a part, or less than all of the matters in
controversy, or only one, or less than all, of the parties to it,
the order may grant a reconsideration as to such issues if
severable without interfering with the judgment or final
order upon the rest (Sec. 7, Rule 37).
DENIAL OF THE MOTION; EFFECT

Q: Distinguish Newly Discovered Evidence from Forgotten Q: What is the effect of an order denying the MNT or MR?
Evidence
A: The order denying a motion for new trial or
A: reconsideration is not appealable, the remedy being an
NEWLY DISCOVERED FORGOTTEN EVIDENCE appeal from the judgment or final order (Sec. 9, Rule 37).
EVIDENCE The movant has a fresh period of fifteen days from receipt
Evidence was not Evidence was already or notice of the order denying or dismissing the motion for
available to a party available to a party and reconsideration within which to file a notice of appeal. It is
during a trial, and was was not presented no longer assailable by certiorari (Sec. 9, Rule 37, A.M. No.
discovered only through inadvertence or 07-7-12-SC).
thereafter. negligence of the
counsel; it is not a Q: What is the effect of an order reversing the grant of a
ground for new trial. new trial?

Q: Distinguish Motion for New Trial from Motion for A: Legally speaking, the effect of the order withdrawing the
Reopening of the Trial grant of new trial is that the original judgment shall be
deemed as having been repromulgated. In other words,
A: since the original judgment had already been vacated, the
MOTION FOR MOTION FOR REOPENING OF reconsideration of the grant of new trial does not in turn
NEW TRIAL TRIAL vacate the said grant, although the original judgment is
A motion must be The judge may act motu given a new life. (Pineda vs. Court of Appeals G.R. No. L-
filed propio 38196 July 22, 1975).
Proper only after May properly be presented
promulgation of only after either or both GRANT OF THE MOTION; EFFECT
judgment parties have formally offered
and closed their evidence Q: What is the effect if the motion for new trial is granted?
before judgment
Based upon Controlled by no other than A: If the motion for new trial is granted in accordance with
specific grounds the paramount interest of the provisions of the rules, the original judgment shall be
mentioned in Sec. justice, resting entirely on the vacated or set aside, and the action shall stand for trial de
37 in civil cases sound discretion of the court, novo; but the recorded evidence taken upon the former
and Sec. 121 in the exercise of such shall not trial so far as the same is material and competent to
criminal cases be reviewable on appeal establish the issues, shall be used at the new trial without
UNLESS a clear abuse thereof retaking the same (Sec. 6, Rule 37).
is shown.
Q: What is the effect if a motion for reconsideration is
Q: What is a motion for reconsideration? granted?

A: A motion for reconsideration under Rule 37 is one that is
directed against a judgment or a final order, and not the
motion for reconsideration of an interlocutory order.
(Riano, Civil Procedure: A Restatement for the Bar, pp. 427,
2009 ed)
A: The court may amend such judgment or final order
accordingly (Sec. 3, Rule 37). The amended judgment is in
the nature of a new judgment which supersedes the
original judgment, and is not a mere supplemental decision
(Esquivel vs. Alegre, 172 SCRA 315).

Q: What is the purpose of a MR? REMEDY WHEN MOTION IS DENIED, FRESH 15 DAY RULE

101 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
5. There can be amendments of pleadings to conform to
Q: When does the fresh period rule apply? the evidence submitted before the trial court (Dayao
vs. Shell, 97 SCRA 407);
A: It applies to: 6. The liability of solidarity defendant who did not appeal
1. Rule 40 MTC to RTC is not affected by appeal of solidarity debtor (Mun. of
2. Rule 41 Appeals from RTC Orion vs. Concha, 50 Phil. 679);
3. Rule 42 Petition for Review from RTC to CA 7. Appeal by guarantor does not inure to the principal
4. Rule 43 Appeals from quasi-judicial agencies to CA (Luzon Metal vs. Manila Underwriter, 29 SCRA 184);
5. Rule 45 Appeals by certiorari to the SC and
8. In ejectment cases, the RTC cannot award to the
Note: Under the fresh period rule the period to appeal is appellant on his counterclaim more than the amount
counted from the receipt of the order denying the MR or MNT and of damages beyond the jurisdiction of the MTC
not from receipt of the decision. What is being appealed is the (Agustin vs. Bataclan, 135 SCRA 342); The appellate
decision on the merits and not the order denying the MR or MNT.
court cannot dismiss the appealed case for failure to
prosecute because the case must be decided on the
Q: Is MNT/ MR a prerequisite for taking an appeal or
basis of the record (Rule 21, Interim Rules).
petition for review?
Q: Give some instances where the CA may act as a trial
A: No, a MNT/ MR is not a prerequisite to an appeal,
court. (2008 Bar Question)
petition for review or petition for review on certiorari. And
since the purpose is to expedite the final disposition of
A:
cases, a strict or prospective application of said ruling is in
1. In annulment of judgment under Secs. 5 and 6, Rule
order (Habaluyas v. Japson, GR No. 70895, May 30, 1986).
47. Should the CA find prima facie merit in the
petition, the same shall be given due course and
APPEALS IN GENERAL
summons shall be served on the respondent, after
which trial will follow, where the procedure in ordinary
Q: What is an appeal?
civil cases shall be observed.
2. When a motion for new trial is granted by the CA, the
A: The elevation by an aggrieved party of any decision,
procedure in the new trial shall be the same as that
order or award of a lower body to a higher body, by means
granted by a RTC (Sec. 4, Rule 53).
of a document which includes the assignment of errors,
3. A petition for habeas corpus shall be set for hearing
memorandum of arguments in support thereof, and the
(Sec. 12, Rule 102).
reliefs prayed for (Techonogas Philippines Manufacturing
4. In petition for writs of amparo and habeas data, a
Corporation v. Clave, 08635-SP, May 31, 1979).
hearing can be conducted.
5. Under Sec. 12, Rule 124 of the Rules of Criminal
Q: Is the right to appeal a constitutional right?
Procedure, the CA has the power to try cases and
conduct hearings, receive evidence and perform any
A: No. It is not a constitutional or a natural right (Canton vs.
and all acts necessary to resolve factual issues which
City of Cebu, G.R No. 152898, Feb. 12, 2007). The right to
fall within its original and appellate jurisdiction.
appeal is not part of due process but a mere statutory
6. The CA can grant a new trial based on the ground of
privilege that has to be exercised only in the manner and in
newly-discovered evidence (Sec. 14, Rule 124).
accordance with the provisions of law (Stolt- Nielsen v.
7. The CA under Sec. 6, Rule 46, whenever necessary to
NLRC, GR No. 147623, Dec. 13, 2005).
resolve factual issues, may conduct hearing thereon or
delegate the reception of the evidence of such issues
Q: What are the basic guidelines regarding appeal?
to any of its members or to an appropriate agency or
office.
A:
8. Human Security Act.
1. No trial de novo (starting from the beginning) shall be
made. The appellate courts must decide the case on
Q: Distinguish Notice of Appeal from Record on Appeal?
the basis of the record,
A:
XPN: a. When the proceedings were not duly recorded
NOTICE OF APPEAL RECORD ON APPEAL
as when there was absence of a qualified stenographer
Normally, appeal is Required only in Special
(Sec. 22[d], BO 129; Rule 21[d], Interim Rules);
made by filing a notice Proceedings and other
of appeal with the court cases of multiple or
b. Instances when the Court of Appeals may act as a
which rendered the separate appeals
trial court
judgment or final order
appealed from
2. There can be no new parties;
3. There can be no change of theory (Naval vs. CA, 483
SCRA 102);
4. There can be no new matters (Ondap vs. Aubga, 88
SCRA 610);
UNIVERSITY OF SANTO TOMAS 102
2013 GOLDEN NOTES
 CIVIL PROCEDURE

Deemed perfected as to Deemed perfected 3. Order disallowing or dismissing an appeal;

him upon the filing of upon the approval of 4. Order denying a motion to set aside a judgment by
the notice of appeal. record on appeal consent, confession or compromise on the ground of
(Riano, Civil Procedure: fraud, mistake or duress, or any other ground vitiating
A Restatement for the consent;
Bar, p.448, 2009 ed.) 5. Order of execution;
Period of appeal is 15 Period of record on 6. Judgment or final order for or against one or more of
days appeal is 30 days 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
7. Order dismissing an action without prejudice, e.g.
Q: What are those cases which allow multiple appeals?
motion to dismiss on improper venue (Sec. 1 as Rule 41
amended by A.M. No. 07-7-12-SC).
A: The civil cases which admit of multiple appeals are:
1. Actions for recovery of property with accounting;
Q: What questions are allowed to be raised for the first
2. Actions for partition of property with accounting;
time on appeal?
3. Special civil actions of eminent domain and foreclosure
of mortgage; and
A:
4. Special proceedings. (Roman Catholic Archbishop v. CA
1. Lack of jurisdiction;
, G.R. No. 111324)
2. Where the lower court committed plain error;
3. Where there are jurisprudential developments
Q: What is the rationale for allowing multiple appeals?
affecting the issues, or when the issues raised present
a matter of public policy.
A: To enable the rest of the case to proceed in the event
that a separate and distinct issue is resolved by the court
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE
and held to be final (Roman Catholic Archbishop of Manila
NOT APPEALABLE
v. CA, GR No. 111324, July 5, 1996).
Q: What is the remedy in cases where appeal is not
JUDGMENT AND FINAL ORDERS SUBJECT TO APPEAL
allowed?
Q: What kind of judgments and final orders are subject to
A: In those instances where the judgment or final order is
appeal?
not appealable, the aggrieved party may file the
appropriate special civil action under Rule 65 (Sec. 1 Rule
A: An appeal may be taken only from judgments or final
41).
orders that completely dispose of the case, or of a
particular matter therein when declared by the Rules of
MODES OF APPEAL
Court to be appealable (Sec.1, Rule 41).
Q: What are the different modes of appeal?
Q: What is a final order?
A:
A: One that puts an end to the particular matter resolved,
1. Ordinary appeal under Rule 40 from MTC to RTC
leaving thereafter no substantial proceedings to be had in
(Questions of fact or mixed questions of fact and law)
connection therewith, except its execution (Bairan v. Tan
Siu Lay, L-19460, Dec. 28, 1966).
a. Notice on appeal 15 day period
b. Record on appeal 30 day period
Q: What is a judgment?
2. Ordinary Appeal under Rule 41 from RTC in the
A: The conclusion of the law upon the matters contained in
exercise of its original jurisdiction to CA (Questions of
the record, or the application of the law to the pleadings
fact or of law or mixed question of fact and law that
and to the facts, as found by the court or admitted by the
has been raised in the court below and is within the
parties, or deemed to exist upon default in a course of
issues framed by the parties)
judicial proceedings (Gotamco v. Chan Seng, 46 Phil 550).
a. Notice on appeal 15 day period
MATTERS NOT APPEALABLE
b. Record on appeal 30 day period
Q: What cases are not appealable?
3. Petition for review under Rule 42 RTC in its appellate
jurisdiction to CA (Questions of fact, of law, or mixed
A:
questions of fact and law)
1. Order denying a petition for relief or any similar motion
4. Petition for revuiew under Rule 43 Quasi-judicial
seeking relief from judgment;
bodies to CA (Questions of fact, of law, or mixed
2. Interlocutory order;
questions of fact and law).

103 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: The appeal shall not stay the award, judgment, final
order unless the CA directs otherwise (Sec. 12, Rule 43).
5. Appeal by certiorari under Rule 45
a. RTC to SC (Sec 2c, Rule 41) questions of law
b. CA to SC (Sec. 1, Rule 45) - questions of law
c. Sandiganbayan to SC (Sec. 1, Rule 45) - questions of
law
d. CTA en banc to SC (Sec. 11, RA 9282; Sec. 1 Rule 45
as amended by AM No. 07- 7-12- SC) - questions of
law
e. Appeals from a judgment or final order in a petition
for a writ of amparo to the SC (AM No. 07-9-12- SC)
questions of fact and law
f. Appeals from a judgment or final order in a petition
for a writ of Habeas Data (AM No. 08-1-16-SC) -
questions of fact and law
g. Appeals from judgment or final order in a petition
for writ of Kalikasan (AM No. 09-6-8-SC) - questions
of fact and law
ISSUES TO BE RAISED ON APPEAL
Q: What issues are to be considered on appeal?
A: GR: The appellate court shall consider no error unless
stated in the assignment of errors (Sec. 8, Rule 51).
XPN: However the court may consider an error not raised
on appeal provided the same falls within any of the
following categories:
1. It is an error that affects the jurisdiction over the
subject matter;
2. It is an error that affects the validity of the judgment
appealed from;
3. It is an error which affects the proceedings;
4. It is an error closely related to or dependent on an
assigned error and properly argued in the brief; or
5. It is a plain and clerical error (Sec. 5, Rule 51).
Note: Exceptions provided by Jurisprudence:
1. The fact that appellants brief did not raise the lack of
jurisdiction of the trial court should not prevent the CA
from taking up the issue of lack of jurisdiction (Dy v.
NLRC 145 SCRA 211; Bar 1993).
2. Supreme Court is clothed with ample authority to
review rulings even if they are not assigned as errors on
appeal, if it finds that their consideration is necessary in
arriving at a just decision of the case (Dumo v. Espinas,
GR Np. 141962, Jan. 25, 2006).
3. Though petitioners did not raise in issue the appellate
courts reversal of the award of damages in their favor,
the Court has the discretion to pass upon this matter
and determine whether or not there is sufficient
justification for the award of damages (Sps. Romulo v.
Sps Layug, GR No. 151217, Sept. 8, 2006).
4. The Court of Appeals is imbued with sufficient authority
and discretion to review matters, not otherwise
assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a complete and
just resolution of the case or to serve the interests of
justice or to avoid dispensing piecemeal justice (Asian
Terminals v. NLRC, 541 SCRA 105).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the basis of the courts power to rule on such
issues not raised on appeal?
A: The court is imbued with sufficient authority and
discretion to review matters, not otherwise assigned as
errors on appeal, as it finds that the consideration is
necessary in arriving at a complete and just resolution of
the case or to serve the interest of justice or to avoid
dispensing piecemeal justice (Asian Terminals, Inc. v.NLRC,
541 SCRA 105, 2007).
PERIOD OF APPEAL
Q: What is the period of appeal via notice of appeal under
Rule 40, 41, 42, 43, and 45?
A: A party-litigant may either file his notice of appeal within
15 days from receipt of courts decision or file it within 15
days from receipt of the final order denying his motion for
new trial or motion for reconsideration. Obviously, the new
15-day period may be availed of only if either motion is
filed; otherwise, the decision becomes final and executory
after the lapse of the original appeal period. This is
intended to make the appeal period uniform (Neypes v. CA,
GR 141524, September 14, 2005).
Note: Appeal in habeas corpus cases shall be taken within 48 hours
from receipt of the courts decision or final order denying motion
for reconsideration or new trial.
Note: The Court in Fil-Estate Properties, Inc. v. Homena-Valencia,
G.R. No. 173942, June 25, 2008, held that, The determinative issue
is whether the fresh period rule announced in Neypes could
retroactively apply in cases where the period for appeal had lapsed
prior to 14 September 2005 when Neypes was promulgated. That
question may be answered with the guidance of the general rule
that procedural laws may be given retroactive effect to actions
pending and undetermined at the time of their passage, there
being no vested rights in the rules of procedure.
Q: What if the means of appeal is record on appeal?
A: The period is 30 days from receipt of courts decision or
the final order denying his motion for new trial or motion
for reconsideration.
Note: Record on appeal is required in the following:
1. Actions for recovery of property with accounting;
2. Actions for partition of property with accounting;
3. Special civil actions of eminent domain and foreclosure of
mortgage; and
4. Special proceedings. (Roman Catholic Archbishop v. CA , G.R.
No. 111324)
Q: May a period of appeal be extended?
A: Yes, under the sound discretion of the court. However,
the mere filing of the motion for extension of time to
perfect the appeal does not suspend the running of the
reglementary period.
104
 CIVIL PROCEDURE
Note: If the extension of the period to appeal is granted, and the
notice thereof is served AFTER the expiration of the period to
appeal, the extension must be computed from the date of notice. If
no action is taken on the motion for extension, or if it is denied
after the lapse of the period to appeal, THE RIGHT TO APPEAL IS
LOST.
Q: What are the instances when extension of time is
allowed?
A: Under Rule 42:
The court may grant an additional period of 15 days
provided the extension is sought:
1. Upon proper motion; and
2. Upon payment of the full amount of the docket and
other lawful fees before the expiration of the
reglementary period.
3. No further extension shall be granted except for the
most compelling reason and in no case to exceed fifteen
(15) days
Under Rule 45
The SC may for justifiable reason grant an extension of 30
days only within which to file the petition provided:
1. There is a motion for extension of time duly filed and
served;
2. There is full payment of the docket and other lawful
fees and the deposit for costs; and
3. The motion is filed and served and the payment is made
before the expiration of the reglementary period (Sec.
2, Rule 45).
PERFECTION OF APPEAL
Q: When is an appeal perfected? What is its effect?
A:
1. Appeal by notice of appeal perfected as to the party
upon filing of the notice of appeal in due time with the
court that rendered the judgment or final order
appealed from and upon payment of the appellate
court docket fee.
Effect: The court loses jurisdiction over the case upon
the perfection of the appeal filed in due time and the
expiration of the time to appeal of the other parties
2. Appeal by record on appeal perfected as to the party
with respect to the subject matter thereof upon the
approval of the record on appeal filed in due time and
upon payment of the appellate court docket fee.
Effect: The court loses jurisdiction only over the
subject matter upon the approval of the records on
appeal filed in due time and the expiration of the time
to appeal of the other parties
3. Appeal by petition for review upon the timely filing of
a petition for review and the payment of the
corresponding docket and other lawful fees, the
appeal is deemed perfected as to the petitioner.
105
Effect: RTC loses jurisdiction over the case upon the
perfection of the appeal and the expiration of the time
to appeal of the other parties (Sec. 4, Rule 40 in
relation to Sec. 9, Rule 41).
Note: In all cases, prior to the transmittal of the original record or
record on appeal to the appellate court, the trial court may, motu
proprio or on motion, dismiss the appeal for having been taken out
of time or for non-payment of the docket and other lawful fees on
time. The court may also exercise its residual powers.
Q: What is meant by Residual Jurisdiction of the court?
A: The term refers to the authority of the trial court to issue
orders for the protection and preservation of the rights of
the parties. The concept of residual jurisdiction is available
at a stage in which the court is normally deemed to have
lost jurisdiction over the case or the subject matter
involved in the appeal. There is no residual jurisdiction to
speak of where no appeal or petition has even been filed
(Fernandez v. CA, 458 SCRA 454).
Q: What are the Residual Jurisdiction/Powers exercised by
the trial court?
A:
1. Issue orders for the protection and preservation of the
rights of the parties which do not involve any matter
litigated by the appeal;
2. Approve compromise agreements by parties after
judgment has been rendered, (there is no rule that
forbids litigants to settle amicably even if there is a
judgment already);
3. Permit appeals of indigent litigants;
4. Order execution pending appeal in accordance with
sec. 2, rule 39; and
5. Allow withdrawal of appeal.
Note: Provided these are done prior to the transmittal of the
original record or the record on appeal even if the appeals have
already been perfected or despite the approval of the record on
appeal (Section 9, Rule 41).
Q: What is the function of notice of appeal?
A: The function of the notice of appeal is merely to notify
the trial court that the appellant is availing of the right to
appeal, and not to seek the courts permission that he be
allowed to pose an appeal (Crisologo v. Daray, AM No. RTJ-
07-2036, Aug. 30, 2006). It does not require the approval of
the court.
Q: What is the effect of judgment on those who failed to
appeal?
A:
1. As to affirmative relief an appellee who has himself
not appealed may not obtain from the appellate court
any affirmative relief other than what was granted in
the decision of the lower court
2. As to reversal of judgment
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
GR: Binding only on the parties in the appealed case
and does not affect or inure to the benefit of those who
did not join or were not made parties to the appeal
XPN: Where the rights of the parties appealing are so
interwoven and dependent on each other as to be
inseparable, in which case a reversal as to one operates
as a reversal to all.

Note: Even if the appeal was filed out of time, the court still has
jurisdiction to admit and give due course to it, PROVIDED there are
justifiable reasons.

Q: Is the perfection of an appeal jurisdictional? APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE
MTC
A: GR: Yes. Perfection of appeal within the reglementary
period is jurisdictional. Q: Discuss the procedure of appeal from decisions of the
MTC to the RTC.
XPN: When there has been extrinsic fraud, accident,
mistake, or excusable negligence (FAME), resort to Petition A:
for relief from judgment under rule 38 (Habaluyas v.
Japson, 142 SCRA 208, 1986).
Appeal decision of MTC by filing notice of
appeal within 15 days or 30 days where a
Q: What is the effect of a perfected appeal?
record on appeal is required from receipt
of judgment.
A: GR: Judgment is not vacated by appeal, but is merely
stayed and may be affirmed, modified or reversed or
findings of facts or conclusions of law may be adopted by Copies of the notice, and record on appeal
reference. when required, shall be served on the
adverse party.
XPN: Not applicable to civil cases under the Rules on
Summary Procedure which provides that the decision of the
RTC in civil cases governed by said Rule including forcible The MTC clerk transmits record to the RTC
entry and unlawful detainer cases, shall be immediately within 15 days from perfection of appeal.
executory without prejudice to a further appeal that maybe
taken therefrom. Also, under Rule 43, an appeal from quasi Parties are given notice that the records
judicial bodies shall not stay the judgment unless the CA have been received by the RTC.
directs otherwise.

Q: Would non- payment of appellate docket fees result to 1. Within 15 days from notice of appeal
the dismissal of the case? appellant submits memorandum to the
RTC.
A: GR: Payment of docket fee is jurisdictional. Without such 2. Within 15 days from receipt of
payment, the appellate court does not acquire jurisdiction appellants memorandum appellee files
over the subject matter of the action and the decision his memorandum.
sought to be appealed from becomes final and executory
(Regalado v. Go, GR No. 167988, February 6, 2007). Q: How should the RTC decide an appeal from an order of
a lower court dismissing a case without trial or those
XPNs: rendered without jurisdiction?
1. The failure to pay appellate court docket fee within
the reglementary period allows only discretionary A:
dismissal, not automatic dismissal, of the appeal; 1. If the lower court dismissed the case without trial on
2. Such power should be used in the exercise of the the merits, RTC may:
courts sound discretion (Republic v. Spouses Luriz, GR a) Affirm- in such case, it is a declaration of the
No. 158992, January 26, 2007). merits of the dismissal;
b) Affirm and the ground of dismissal is lack of
jurisdiction over the subject matter the action of
the RTC is a mere affirmation of the dismissal. The
RTC shall try the case on the merits as if the case
was originally filed with it;

UNIVERSITY OF SANTO TOMAS 106

2013 GOLDEN NOTES
 CIVIL PROCEDURE
c) Reverse it shall remand the case for further notice of appeal or by record on appeal. This requires
proceedings. the filing of brief which contains the assignment of
2. If the case was tried on the merits by the lower court error.
without jurisdiction over the subject matter, the RTC
shall not dismiss the case if it has original jurisdiction, Note: Rule 41 refers to appeals from RTC exercising original
but shall decide the case, and shall admit amended jurisdiction. An appeal on pure questions of law cannot be
pleadings and additional evidence (Sec. 8, Rule 40). taken to the CA and such improper appeal will be dismissed
pursuant to Sec. 2, Rule 50 (Regalado, Remedial Law
Compendium, Vol. 1, p. 526, 2007 ed)
Q: What is the duty of the clerk of court of RTC upon
receipt of the complete record or record on appeal?
2. RULE 42: Petition for review The questioned
judgment or final order was rendered by RTC in the
A: The clerk of court of the RTC shall notify the parties of
exercise of its APPELLATE jurisdiction over a judgment
such fact (Sec. 7(a), Rule 40).
or final order in a civil action or special proceeding
originally commenced in and decided by a lower court.
The appeal is taken by a petition for review filed with
CA on questions of facts, of law or on mixed questions
Q: What are the duties of the parties to whom notice was
of fact and law.
given by the clerk of court?
3. RULE 45: Petition for review on certiorari Taken to
A:
the SC only on questions of law from a judgment or
1. Within 15 days from such notice, it shall be the duty of
final order rendered in a civil action or special
the appellant to submit a memorandum which shall
proceeding by RTC in the exercise of its original
briefly discuss the errors imputed to the lower court, a
jurisdiction. The appeal is taken by filing a petition for
copy of which shall be furnished by him to the adverse
review on certiorari with SC (Regalado, Remedial Law
party. Failure of the appellant to file a memorandum
Compendium, Vol 1, p. 554-556, 2009 ed.).
shall be a ground for dismissal of the appeal
2. Within 15 days from receipt of the appellants
Q: What may be the subject of an appeal under Rule 41?
memorandum, the appellee may file his
memorandum. (Sec. 7(b), Rule 40).
A: An appeal may be taken from a judgment or final order
that completely disposes of the case or of a particular
Q: When is the case considered submitted for decision?
matter therein when declared by the Rules to be
appealable (Section 1, Rule 41).
A: Upon the filing of the memorandum of the appellee, or
the expiration of the period to do so, the case shall be
Q: What is the title of the case when appealed to the CA
considered submitted for decision. The Regional Trial Court
under Rule 41?
shall decide the case on the basis of the entire record of the
proceedings had in the court of origin and such memoranda
A: In all cases appealed to the CA under Rule 41, the title of
as are filed (Sec. 7(c), Rule 40).
the case shall remain as it was in the court of origin but the
party appealing the case shall be referred to as the
Q: What if the case is dismissed for lack of jurisdiction?
appellant and the adverse party appellee (Sec 1. Rule 44).
A: The order of dismissal is one without prejudice and the
Q: What are the contents of appellants brief?
plaintiff may simply re-file the complaint in the court with
the proper jurisdiction because:
A: The appellants brief shall contain, in the order herein
GR: The order dismissing an action without prejudice is
indicated, the following:
not appealable (Sec. 1[g], Rule 41)
1. A subject index of the matter in the brief with a digest
XPN: Section 8, Rule 40 allows an appeal from an order
of the arguments and page references, and a table of
of the MTC dismissing a case for lack of jurisdiction.
cases alphabetically arranged, textbooks and statutes
cited with references to the pages where they are
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE
cited;
RTC
2. An assignment of errors intended to be urged, which
errors shall be separately, distinctly and concisely
Q: What are the three modes of appeal from the decisions
stated without repetition and numbered
of the RTC?
consecutively;
3. Under the heading "Statement of the Case," a clear
A:
and concise statement of the nature of the action, a
1. RULE 41: Ordinary appeal or appeal by writ of error
summary of the proceedings, the appealed rulings and
This presupposes that the RTC rendered the judgment
orders of the court, the nature of the judgment and
or final order in the civil action or special proceeding in
any other matters necessary to an understanding of
the exercise of its ORIGINAL jurisdiction and appeal is
the nature of the controversy, with page references to
taken to the CA on questions of fact or mixed
the record;
questions of fact and law. The appeal is taken by

107 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
4. Under the heading "Statement of Facts," a clear and
concise statement in a narrative form of the facts
admitted by both parties and of those in controversy,
together with the substance of the proof relating
thereto in sufficient detail to make it clearly
intelligible, with page references to the record;
5. A clear and concise statement of the issues of fact or
law to be submitted to the court for its judgment;
6. Under the heading "Argument," the appellants
arguments on each assignment of error with page
references to the record. The authorities relied upon
shall be cited by the page of the report at which the
case begins and the page of the report on which the
citation is found;
7. Under the heading "Relief," a specification of the order
or judgment which the appellant seeks; and
8. In cases not brought up by record on appeal, the
appellants brief shall contain, as an appendix, a copy
of the judgment or final order appealed from (Sec. 13,
Rule 44).
Q: What are the contents of the appellees brief?
A: The appellees brief shall contain, in the order herein
indicated, the following:
1. A subject index of the matter in the brief with a digest
of the arguments and page references, and a table of
cases alphabetically arranged, textbooks and statutes
cited with references to the pages where they are
cited;
2. Under the heading "Statement of Facts," the appellee
shall state that he accepts the statement of facts in the
appellants brief, or under the heading "Counter-
Statement of Facts," he shall point out such
insufficiencies or inaccuracies as he believes exist in
the appellants statement of facts with references to
the pages of the record in support thereof, but
without repetition of matters in the appellants
statement of facts; and
3. Under the heading "Argument," the appellee shall set
forth his arguments in the case on each assignment of
error with page references to the record. The
authorities relied on shall be cited by the page of the
report at which the case begins and the page of the
report on which the citation is found (Sec. 14, Rule 44).
Q: What is the purpose of an appellants/ appellees brief?
A: To present to the court in a concise form the points and
question in controversy, and by fair argument on the facts
and law of the case, to assist the court in arriving at a just
and proper conclusion/decision (De Liano v. CA, 2006).
Note: Extensions of time for the filing of briefs will not be allowed
except for good and sufficient cause and only if the motion for
extension is filed before the expiration of the time sought to be
extended (Sec. 12, Rule 44).
Q: Distinguish a brief from a memorandum
A:
Brief Memorandum
Ordinary appeals Certiorari, prohibition, mandamus,
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
quo warranto and habeas corpus
cases
Filed within 45 days Filed within 30 days
or 20 days if
appellants reply
brief
Contents specified Shorter, briefer, only one issue
by rules involved No subject index or
assignment of errors, just facts and
law applicable
Q: What is the duty of the clerk of court of lower court
upon perfection of appeal?
A: Within 30 days after perfection of all the appeals it shall
be the duty of the clerk of court of the lower court:
1. To verify the correctness of the original record or the
record on appeal and to make a certification of its
correctness;
2. To verify the completeness of the records that will be
transmitted to the appellate court;
3. If found to be incomplete, to take such measures as
may be required to complete the records;
4. To transmit the records to the appellate court. If the
efforts to complete the records fail, the clerk of court
shall indicate in his letter of transmittal the exhibits or
transcripts not included in the records and the reasons
for their non-transmittal, and the steps taken or that
could be taken to have them available; and
5. The clerk of court shall furnish the parties with copies of
his letter of transmittal of the records to the appellate
court (Sec. 10, Rule 41).
Note: Prior to the transmittal of the original record or the record
on appeal to the appellate court, the trial court may motu proprio
or on motion dismiss the appeal for having been taken out of time
(Sec. 13, Rule 41).
Q: When does Rule 42 apply? (1998, 1990, 2009 Bar
Question)
A: Rule 42 applies to an appeal from the judgment or final
order of the RTC to the CA in cases decided by the former in
the exercise of its appellate jurisdiction.
Q: The RTC affirmed the appealed decision of the MTC.
You are the counsel of the defeated party and he tells you
to appeal the RTC's decision.
1. What mode of appeal will you adopt?
2. Within what time and in what court should you
file your appeal? (1998 Bar Question)
A:
1. The mode of appeal is by petition for review under
Rule 42 of the Rules of Court.
2. The period of appeal is within 15 days from notice of
the decision subject of the appeal or of the denial of a
motion for new trial or reconsideration filed in due
time to the CA.
Q: How is appeal taken?
108
 CIVIL PROCEDURE
A:
1. A party aggrieved by the decision of RTC in the
exercise of its appellate jurisdiction, may file a verified
petition for review with CA;
2. At the same time paying to the clerk of said court the
corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs, and
furnishing the RTC and the adverse party with a copy
of the petition;
3. The petition shall be filed and served within 15 days
from notice of the decision sought to be reviewed or
of the denial of petitioners motion for new trial or
reconsideration filed in due time after judgment;
4. Upon proper motion and the payment of the full
amount of the docket and other lawful fees and the
deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant
an additional period of 15 days only within which to
file the petition for review.
5. No further extension shall be granted except for the
most compelling reason and in no case to exceed
fifteen (15) days (Sec. 1, Rule 42).
Q: What are the contents of the petition for review?
A: The petition shall be filed in 7 legible copies, with the
original copy intended for the court being indicated as such
by the petitioner, and shall:
1. State the full names of the parties to the case, without
impleading the lower courts or judges thereof either
as petitioners or respondents;
2. Indicate the specific material dates showing that it was
filed on time;
3. Set forth concisely a statement of the matters
involved, the issues raised, the specification of errors
of fact or law, or both, allegedly committed by the
Regional Trial Court, and the reasons or arguments
relied upon for the allowance of the appeal;
4. Must be accompanied by clearly legible duplicate
originals or true copies of the judgments or final
orders of both lower courts, certified correct by the
clerk of court of the Regional Trial Court, the requisite
number of plain copies thereof and of the pleadings
and other material portions of the record as would
support the allegations of the petition.
5. There must be a certification against forum shopping
(Sec. 2, Rule 42).
Q: What is the effect of failure to comply with the
requirements?
A: The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the
docket and other lawful fees, the deposit for costs, proof of
service of the petition, and the contents of and the
documents which should accompany the petition shall be
sufficient ground for the dismissal thereof (Sec. 3, Rule 42).
Q: Is a petition for review a matter of right?
A: It is not a matter of right but discretionary on the CA. It
may only be given due course if it shows on its face that the
lower court has committed an error of fact and/or law that
will warrant a reversal or modification of the decision or
judgment sought to be reviewed or dismiss the petition if it
finds that it is patently without merit, or prosecuted
manifestly for delay, or the questions raised therein are too
unsubstantial to require consideration (Sec. 42).
Q: What are the actions the CA may take in acting upon
the petition?
A: The CA may require the respondent to file a comment on
the petition, not a motion to dismiss, within 10 days from
notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or
that the questions raised therein are too unsubstantial to
require consideration (Sec. 4, Rule 42).
Q: What are the contents of comment to the petition?
A:
1. State whether or not he accepts the statement of
matters involved in the petition;
2. Point out the insufficiencies or inaccuracies in
petitioners statement of facts and issues; and
3. State the reasons why the petition should be denied or
dismissed (Sec. 5, Rule 42).
Q: Is the doctrine of residual jurisdiction applicable to
Appeals under Rule 42?
A: Yes, provided that such residual jurisdiction/ power is
exercised before the CA gives due course to the petition
(Sec. 8, Rule 42).
Q: What is the effect of an appeal of the judgment or final
order under Rule 42?
A: Except in civil cases decided under the Rule on Summary
Procedure, the appeal, as a rule, shall stay the judgment or
final order; unless the CA, the law or the rules shall provide
otherwise.
Q: What are the grounds for the Court of Appeals to
dismiss an appeal?
A: Under Sec.1 Rule 50, the CA, upon its own motion or
upon the motion of the appellee an appeal may be
dismissed on the following grounds:
1. Failure of the record on appeal to show on its face that
the appeal was taken within the period fixed by the
Rules;
2. Failure to file the notice of appeal or the record on
appeal within the period prescribed by the Rules;
3. Failure of the appellant to pay the docket and other
lawful fees as provided in Section 5 Rule 40 and Sec. 4
of Rule 41;
4. Unauthorized alterations, omissions or additions in the
approved record on appeal as provided in Sec. 4 of
Rule 44
5. Failure of the appellant to serve and file the required
number of copies of his brief or memorandum within
the time provided by the Rules;
109 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
6. Absence of specific assignment of errors in the
appellants brief, or of page references to the record
as required in Sec.13, paragraphs (a), (c), (d) and (f) of
Rule 44;
7. Failure of the appellant to take the necessary steps for
the correction or completion of the record within the
time limited by the court in its order;
8. Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders,
circulars, or directives of the court without justifiable
cause; and
9. The fact that the order or judgment appealed from is
not appealable (En Banc Resolution, February 17,
1998)
Note: The grounds are discretionary upon the appellate court. The
very wording of the rule uses the word may instead of shall.
This indicates that it is only directory and not mandatory. (Mercury
Drug Corporation vs. De Leon, G.R. No. 165622, Oct. 17, 2008)
Q: When is the case deemed submitted for decision?
A: If the petition is given due course, the Court of Appeals
may set the case for oral argument or require the parties to
submit memoranda within a period of 15 days from notice.
The case shall be deemed submitted for decision upon the
filing of the last pleading or memorandum required by
these Rules or by the court itself (Sec. 9, Rule 42).
Q: Can a case decided by the RTC in the exercise of its
appellate jurisdiction be appealed by way of a petition for
review on certiorari under Rule 45?
A: No, where a case is decided by the RTC in the exercise of
its appellate jurisdiction, regardless of whether the
appellant raises questions of fact, of law or mixed questions
of fact and law, the appeal shall be brought to the CA by
filing a petition for review under Rule 42 (Quezon City v.
ABS-CBN Broadcasting Corporation, GR No. 166408 October
6, 2008).
Q: Does Rule 45 include appeals from quasi-judicial
bodies?
A: No. Under the present Rule 45, appeals may be brought
through a petition for review on certiorari but only from
judgments and final orders of the court enumerated in Sec.
1 thereof. Appeals from judgments and final orders of
quasi-judicial agencies are now required to be brought to
the CA on a verified petition for review, under the
requirements and conditions in Rule 43 which was precisely
formulated and adopted to provide for a uniform rule of
appellate procedure for quasi-judicial agencies. (Fabian v.
Desierto, G.R. No. 129742, Sept. 16, 1998)
Note: The mode of appeal under Rule 45 is applicable to criminal
cases, except in those where the penalty imposed is death,
reclusion perpetua or life imprisonment. (Sec. 9, Rule 45)
APPEAL FROM JUDGMENT OR FINAL ORDERS OF THE CA
Q: When may the SC review the findings of fact of the CA?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: GR: CAs findings of fact are final and conclusive and
cannot be reviewed on appeal to the SC. The SC shall not
entertain questions of fact because its jurisdiction is limited
to reviewing errors of law (Natividad v. MTRCB, GR No.
161422, December 13, 2007).
XPNs:
1. The conclusion of the CA is grounded entirely on
speculations, surmises and conjectures;
2. The inference made is manifestly mistaken, absurd or
impossible;
3. There is grave abuse of discretion;
4. The judgment is based on misapprehension of facts;
5. The findings of facts are conflicting;
6. The CA in making its findings went beyond the issues
of the case and the same is contrary to the admissions
of both appellant and appellee;
7. The findings are contrary to those of the trial court;
8. The findings of facts are conclusions without citation
of specific evidence on which they are based;
9. The facts set forth in the petition as well as in the
petitioners main and reply briefs are not disputed by
the respondents;
10. The findings of fact of the CA are premised on the
supposed absence of evidence and contradicted by the
evidence on record; or
11. Those filed under Writs of amparo, habeas data, or
kalikasan.
Q: How is appeal taken from the decision of the Court of
Appeals?
A: By filing a petition for review under Rule 45
Q: Is the appeal under Rule 45 a matter of right?
A: No. It is not a matter of right, but of sound judicial
discretion with the exception of cases where the penalty of
death, or reclusion perpetua where the an appeal is a
matter of right leaving the reviewing court without any
discretion (People v. Flores, G.R. No. 170565, Jan. 31, 2006).
The following are examples of reasons which the court
may consider in allowing the petition:
1. When the court below has decided a question of
substance not yet determined by the Supreme court;
2. When the court below decided a question of substance
in a way that is probably not in accord with the law or
with the applicable decisions of the Supreme Court;
3. When the court below has departed from the accepted
and usual course of judicial proceedings or so far
sanctioned such a departure by a lower court, as to call
for the exercise of the power of supervision of the
Supreme Court (Sec. 6, Rule 45, Rules of Court)
Q: When does Appeal by Certiorari under Rule 45 apply?
A: Appeal by certiorari to the Supreme Court or petition for
review on certiorari applies in the following cases:
1. Appeal from a judgment or final order of the RTC in
cases where only questions of law are raised or are
involved and the case is one decided by the said court
110
 CIVIL PROCEDURE
in the exercise of its original jurisdiction (Section 2c,
Rule 41);
2. Appeal from the judgment, final order or resolutions
of the Court of Appeals where the petition shall raise
only questions of law (Section 1, Rule 45);
3. Appeal from the judgment, final order or resolutions
of the Sandiganbayan where the petition shall raise
only questions of law (Section 1, Rule 45);
4. Appeals from the decision or ruling of the Court of Tax
Appeals en banc (Section 11, RA 9282; Section 1, Rule
45 as amended by AM No, 07-7-12-SC);
5. Appeals from a judgment or final order in a petition for
writ of amparo to the Supreme Court which may raise
questions of fact, questions of law or of both fact and
law (AM No. 08-1-16-SC, Rule on the Writ of Amparo
(Section19) October 24, 2007);
6. Appeal from judgment or final order in a petition for
the writ of Habeas Data. The appeal may raise
questions of fact or law or both (AM No. 08-1-16-SC,
Rule on the Writ of Habeas Data (Section 19) February
2, 2008).
7. Appeal from judgment or final order in a petition for
the writ of Kalikasan The appeal may raise questions of
fact or law or both (AM No. 09-6-8-SC, Rules of
Procedure for Environmental Cases, Part III, Rule 7).
Q: What is the reason why generally questions of law are
only allowed in appeal by certiorari?
without impleading the lower courts or judges thereof
either as petitioners or respondents;
2. indicate the material dates showing when notice of
the judgment or final order or resolution subject
thereof was received, when a motion for new trial or
reconsideration, if any, was filed and when notice of
denial thereof was received;
3. set forth concisely a statement of the matters
involved, and the reasons and arguments relied on for
the allowance of the petition;
4. be accompanied by a clearly legible duplicate original,
or a certified copy of the judgment or final order or
resolution certified by the clerk of court a quo and the
requisite number of plain copies thereof, and such
material portions of the record as would support the
petition;
5. contain a sworn certification against forum shopping
(Sec. 4, Rule 45).
Q: May a petition for review on certiorari include a prayer
for the grant of provisional remedies?
A: Yes. The petition for review on certiorari may include an
application for a writ of preliminary injunction or other
provisional remedies. The petitioner may also seek the
same provisional remedies by verified motion filed in the
same action or proceeding at any time during its pendency
(Sec. 1, Rule 45 as amended by A.M. No. 07-7-12-SC
effective December 27, 2007).

A: The SC is not a trier of facts, and is not to review or Q: Distinguish Petition for Review on Certiorari under Rule
calibrate the evidence on record. Moreover, the findings of 45 and Certiorari under Rule 65.
facts of the trial court, as affirmed on appeal by the CA, are
conclusive on the Supreme Court. (Boston Bank of the A:
Philippines v. Manalo, GR No. 158149, Feb. 9, 2006; PETITION FOR REVIEW SPECIAL CIVIL ACTION
Frondarina v. Malazarte, GR No. 148423, Dec. 6, 2006) ON CERTIORARI (RULE ON CERTIORARI (RULE
45) 65)
Q: How does a question of law differ from a question of Mode of appeal which Special civil action; an
fact? seeks to review final original action (Rule 65).
judgments and orders It may be directed against
A: A question of law exists when the doubt or controversy (Section 2, Rule 41). an interlocutory order or
concerns the correct application of law or jurisprudence to matters where no appeal
a certain given set of facts; or when the issue does not call may be taken from
for an examination of the probative value of the evidence (Section 1, Rule 41)
presented, the truth or falsehood of facts being admitted. A Rule 45 is but a Rule 65 is not part of the
question of fact obtains when the doubt or difference continuation of the appellate process but an
arises as to the truth or falsehood of facts or when the appellate process over independent action.
query invites the calibration of the whole evidence the original case.
considering mainly the credibility of the witnesses, the Raises questions of law Raises questions of
existence and relevancy of specific surrounding jurisdiction
circumstances, as well as their relation to each other and to It shall be filed within It shall be filed not later
the whole, and the probability of the situation (Irene 15 days from notice of than 60 days from notice
Marcos-Araneta, et al. vs. CA, G.R. No. 154096, Aug. 22, judgment or final order of judgment, order or
2008). appealed from resolution sought to be
assailed or from denial of
Q: What are the contents of the verified petition under an MR or MNT
Rule 45? Does not require prior Requires as a general
motion for rule, a prior MR
A: The petition shall be filed in 18 copies, with the original reconsideration
copy intended for the court being indicated as such by the Stays the judgment Does not stay the
petitioner and shall: sought to be appealed judgment or order
1. state the full name of the appealing party as the subject of the petition
petitioner and the adverse party as the respondent, unless enjoined or

111 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

restrained. the Court in Division must be preceded by the filing of a

The parties are the The tribunal, board,
original parties with the officer exercising judicial
appealing party as the or quasi-judicial functions
petitioner and the is impleaded as
adverse party as respondent (Section 5
respondent without Rule 65).
impleading the lower
court or its judge
(Section 4a, Rule 45).
Filed with the SC Filed with the RTC
(Section 1, Rule 45). (Section 21, BP 129);
With the CA (Section 9,
BP 129);
With the SC (Section 5 (1)
Article VIII, 1987
Constitution).
timely motion for reconsideration or new trial with the
Division (Sec. 1., Rule 8, A.M. No. 05-11-07-CTA).
Q: Who may file an appeal to the Supreme Court by
petition for review on certiorari?
A: A party adversely affected by a decision or ruling of the
CTA en banc may appeal therefrom by filing with the
Supreme Court a verified petition for review on certiorari
within 15 days from receipt of a copy of the decision or
resolution, as provided in Rule 45 of the Rules of Court. If
such party has filed a motion for reconsideration or for new
trial, the period herein fixed shall run from the partys
receipt of a copy of the resolution denying the motion for
reconsideration or for new trial. (Sec. 1., Rule 16, A.M. No.
05-11-07-CTA).

Q: When may the SC, on its own initiative, deny the

petition for review? Q: What is the effect of the appeal?

A: A: The motion for reconsideration or for new trial filed

1. The appeal is without merit;
2. Prosecuted manifestly for delay; or
3. That the questions raised therein are too unsubstantial
to require consideration (sec.5, Rule 45)
Q: May a party file a petition both under Rule 45 and 65?
A: GR: As a general rule, a party cannot file a petition both
under Rules 45 and 65 of the Rules of Court because said
procedural rules pertain to different remedies and have
distinct applications. The remedy of appeal under Rule 45
and an original action for certiorari under Rule 65 are
mutually exclusive and not alternative or cumulative. Thus,
a party should not join both petitions in one pleading
(NAMAPRI SPFL v. CA, GR. Nos. 148839-49, Nov. 2, 2006).
XPN: The SC may set aside technicality for justifiable
reasons as when the petition before the Court is clearly
meritorious and filed on time both under Rule 45 and 65. In
accordance with the liberal spirit which pervades the Rules
of Court and in the interest of justice, The Court may treat
the petition as having been filed under Rule 45
(International Corporate Bank, Inc. v. CA, GR 129910, Sept.
5, 2006).
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA
Q: How is appeal made?
A: An appeal from a decision or resolution of the CTA in
Division on a motion for reconsideration or new trial shall
be taken to the CTA En Banc by petition for review as
provided in Rule 43 of the Rules of Court (Sec. 4, Rule 8,
A.M. No. 05-11-07-CTA).
Q: May a decision or resolution of the CTA in Division be
appealed directly to the CTA En Banc in its exercise of its
exclusive appellate jurisdiction?
A: No, the petition for review of a decision or resolution of
before the Court shall be deemed abandoned if, during its
pendency, the movant shall appeal to the Supreme Court
(Sec. 1., Rule 16, A.M. No. 05- 11-07-CTA).
Q: Melissa filed with the BIR a complaint for refund of
taxes paid, but it was not acted upon. So, she filed a
similar complaint with the CTA raffled to one of its
divisions. Melissa's complaint was dismissed. Thus, she
filed with the CA a petition for certiorari under Rule 65.
Does the CA have jurisdiction over Melissa's petition?
(2006 Bar Question)
A: No. A decision of a division of the CTA is appealable
within 15 days to the CTA en banc. On the other hand, a
party adversely affected by a decision or ruling of the CTA
en banc may file with the SC a verified petition for review
on certiorari pursuant to Rule 45 of the Rules of Court.
Note: R.A. 9282 expanded the jurisdiction of the CTA and elevated
the same to the level of a collegiate court equivalent to the rank of
the CA. Hence, the CA no longer has jurisdiction to review the
decisions of the CTA en banc.
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
COA, COMELEC, CSC
Q: What is the remedy of a party aggrieved by the decision
of the COMELEC, COA and CSC?
A: A judgment, resolution or final order of the COMELEC
and the COA may be brought by the aggrieved party to the
SC on certiorari under Rule 65 by filing the petition within
30 days from notice of the judgment or final order (Sec. 2,
Rule 64). On the other hand, judgments, final orders or
resolutions of the CSC may be taken to the CA under Rule
43 of the Rules of Court (Sec. 1, 3 Rule 43).
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
OMBUDSMAN

UNIVERSITY OF SANTO TOMAS 112

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Q: Does the CA have jurisdiction to review the decisions in 7. Civil Aeronautics Board;
criminal and administrative cases of the Ombudsman? 8. Bureau of Patents, Trademarks and Technology
Transfer;
A: Yes, in administrative disciplinary cases, the rulings of 9. National Electrification Administration;
the Office of the Ombudsman are appealable to the CA 10. Energy Regulatory Board;
under Rule 43. Where the findings of the ombudsman on 11. National Telecommunications Commission;
the existence of probable cause in criminal cases is tainted 12. Department of Agrarian Reform under R.A. 6657;
with grave abuse of discretion amounting to lack or excess 13. GSIS;
of jurisdiction, the aggrieved party may file a petition for 14. Employee Compensation Commission;
certiorari with the SC under Rule 65 (Enemecio v. Office of 15. Agricultural Inventions Board;
the Ombudsman, 419 SCRA 82) 16. Insurance Commission;
17. Philippine Atomic Energy Commission;
In criminal cases, the ruling of the Ombudsman shall be 18. Board of Investments;
elevated to the SC by way of Rule 65. 19. Construction Industry Arbitration Commission; and
20. Voluntary Arbitrators authorized by law (Sec. 1 Rule
43).

Q: What is the remedy of a party aggrieved by the decision Q: Where should the judgments and final orders of quasi-
of the Sandiganbayan? judicial bodies be appealed?

A: Decisions and final orders of the Sandiganbayan shall be
appealable to the SC by way of certiorari under Rule 45
raising pure questions of law (Sec. 1, Rule 45).
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
NLRC
Q: What is the remedy of a party aggrieved by the decision
of the NLRC?
A: The remedy is to promptly move for the reconsideration
of the decision and if denied, to timely file a special civil
action of certiorari under Rule 65 within 60 days from
notice of the decision. In observance of the doctrine of
hierarchy of courts, the petition for certiorari should be
filed in the CA (St. Martin Funeral Homes vs. NLRC, G.R. No.
130866, September 16, 1998).
Note: Those judgments and final orders or resolutions of the
Employees Compensation Commission should be brought to the CA
through a petition for review under Rule 43.
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
QUASI- JUDICIAL AGENCIES
A: Appeals from judgment and final orders of quasi- judicial
bodies/agencies enumerated in Rule 43 are now required
to be brought to the CA under the requirements and
conditions set forth in Rule 43 (Carpio v. Sulu Resource Dev.
Corp., 387 SCRA 128).
Q: What issues may be raised on appeal?
A: The appeal under Rule 43 may raise issues involving
questions of fact, of law or mixed questions of fact and law
(Sec.3, Rule 43).
Note: Rule 43 is not applicable where the petition contains an
allegation that the challenged resolution is patently illegal and was
issued with grave abuse of discretion and beyond respondents
jurisdiction. The appropriate remedy is Rule 65 on certiorari.
Q; What is the effect of the appeal on the award,
judgment, final order or resolution?
A: The appeal shall not stay the award, judgment, final
order or resolution sought to be reviewed unless the CA
shall direct otherwise upon such terms as it may deem just
(Sec. 12, Rule 43).

Q: What is a quasi-judicial agency? Q: What is the remedy of a party aggrieved by the decision
of a Quasi-judicial Agency?
A: An organ of the government other than a court and
other than a legislature, which affects the rights of private A: Within 15 days from:
parties through either adjudication or rule-making. 1. Notice of the award, judgment, final order or
resolution; or
Q: What are the agencies included under Rule 43? 2. Date of publication, if publication is required by law for
its effectivity; or
A: 3. Denial of petitioners MNT or MR,
1. Civil Service Commission;
2. Central Board of Assessment Appeals; the aggrieved party must file a verified petition for review
3. Securities and Exchange Commission; under rule 43 in 7 legible copies with the CA. The appeal
4. Office of the President; may involve questions of fact, of law, or mixed questions of
5. Land Registration Authority; fact and law.
6. Social Security Commission;

113 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What are the contents of comment to the petition and Motion for New Trial /
Petition for Relief from
when must it be filed? Reconsideration (Rule
Judgment (Rule 38)
37)
A: The comment shall be filed within 10 days from notice in Available before Available after judgment
7 legible copies and accompanied by clearly legible certified judgment becomes final has become final and
true copies of such material portions of the record referred and executory. executory.
to therein together with other supporting papers. The Applies to judgments, final
Applies to judgments or
comment shall: orders and other
1. Point out the insufficiencies or inaccuracies in final orders only.
proceedings:
petitioners statement of facts and issues; and Grounds for motion for
2. State the reasons why the petition should be denied or new trial:
dismissed (Sec. 9 Rule 43). 1. Fraud, accident,
mistake or excusable
Q: Is extension of time to file petition for review allowed? negligence;
2. Newly discovered
A: Yes. Upon proper motion and the payment of the full evidence (Sec. 1)
amount of the docket fee before the expiration of the Grounds:
reglementary period, the CA may grant additional period of Grounds for motion for Fraud, accident, mistake or
15 days only within which to file a petition for review. No reconsideration: the excusable negligence.
further extension shall be granted except for the most damages awarded are
compelling reason and in no case to exceed 15 days (Sec. 4, excessive; that the
Rule 43). evidence is insufficient to
justify the decision or
Q: Distinguish appeal from RTC as appellate court under final order, or that the
Rule 42 and appeal from quasi-judicial agencies under decision or final order is
Rule 43 contrary to law (Sec. 1).
Filed within 60 days from
A: knowledge of the
Filed within the time to
RTC as Appellate Appeal from Quasi-judicial judgment and within 6
Court agencies (Rule 43) appeal.
months from entry of
(Rule 42) judgment
Decision is stayed GR: Decision is immediately Legal Remedy Equitable Remedy
by an appeal. executory. It is not stayed by
The order of denial is not
an appeal The order of denial is not
appealable. The remedy
XPN: CA shall direct otherwise appealable; the remedy is
is to appeal from the
upon such terms as it may appropriate special civil
judgment or final order
deem just action under Rule 65
on the merits.
Factual findings Factual findings are conclusive
not conclusive to upon CA if supported by Motion need not be
Petition must be verified.
CA. substantial evidence. verified.

RELIEF FROM JUDGMENTS, ORDERS AND OTHER Note: A party who has filed a timely motion for new trial cannot
PROCEEDINGS file a petition for relief after the former is denied. The two
remedies are exclusive of one another. (Section 9,Rule 38;
Francisco v. Puno, 108 SCRA 427)
GROUNDS
Q: Who may file the petition for relief from judgment?
Q: What is the nature of petition for relief from judgment?
A: A petition for relief from judgment together with a
A: It is a legal remedy whereby a party seeks to set aside a
motion for new trial and a motion for reconsideration are
judgment rendered against him by a court whenever he
remedies available only to parties in the proceedings where
was unjustly deprived of a hearing or was prevented from
the assailed judgment is rendered. A person who was never
taking an appeal because of fraud, accident, mistake or
a party to the case, or even summoned to appear therein,
excusable neglect (Sec. 1, Rule 38; Quelnan v. VHF
cannot avail of a petition for relief from judgment (Alaban
Philippines, G.R. No. 138500, Sept. 16, 2005). It is an
v. CA, 470 SCRA 697).
equitable remedy that is allowed only in exceptional cases
when there is no other available or adequate remedy.
Q: What are the duties of the court after an answer to the
(Trust International Paper Corp. v. Pelaez, 499 SCRA 552)
petition has been filed or the period for filing has expired?
Q: Distinguish motion for new trial/reconsideration from
A: There are two steps or hearings in a petition for relief:
petition for relief from judgment (1990 Bar Question)
1. A hearing to determine whether the judgment, order
or proceeding should be set aside; and
A:

UNIVERSITY OF SANTO TOMAS 114

2013 GOLDEN NOTES
 CIVIL PROCEDURE
2. In the affirmative, a hearing on the merits of the case
(Villanueva vs. Alcoba, 101 Phil. 277).
If the allegations are true, the court shall set aside the
judgment, final order or proceeding complained of upon
such terms as may be just. Thereafter, the case shall stand
as if such judgment, final order or proceedings had never
been rendered, issued or taken. The court shall then
proceed to hear and determine the case as if a timely
motion for new trial or reconsideration had been granted
by it (Sec. 6, Rule 38).
Note: Failure to file an answer to the petition for relief does not
constitute default, even without such answer, the court will still
have to hear the petition and determine its merits (Regalado,
Remedial Law Compendium Vol. 1, p. 447, 2009 ed)
Q: Is the remedy of preliminary injunction available
pending the resolution of the petition for relief?
A: Yes. The court may grant such preliminary injunction as
may be necessary for the preservation of the rights of the
parties upon the filing of a bond in favor of the adverse
party (Sec. 5, Rule 38).
Note: The bond is conditioned that if the petition is dismissed or
the petitioner fails on the trial of the case upon its merits, he will
pay the adverse party all damages and costs that may be awarded
to him by reason of issuance of such injunction or the other
proceedings following the petition (Ibid.).
Q: Is the lien acquired over the property discharged by a
subsequent issuance of a writ of preliminary injunction?
A: Where a writ of execution was already issued and levy
was made before the petition for relief was filed, the lien
that may have been acquired over the property is not
discharged by the subsequent issuance of a writ of
preliminary injunction. Therefore, if the petition is denied,
the court has the power to reinstate the writ of execution
(Ayson v. Ayson, 101 Phil. 1223).
Q: Will an execution of the judgment proceed even if the
order denying the petition for relief is pending on appeal?
A: Unless a writ of preliminary injunction has been issued,
execution of the judgment shall proceed even if the order
denying the petition for relief is pending on appeal. Said
writ may be sought either in the trial or appellate courts
(Service wide Specialists, Inc. vs. Sheriff of Manila, at. al.,
G.R. No. 74586, Oct. 17, 1986).
Q: Is the order granting petition for relief appealable?
A: An order granting petition for relief is interlocutory and
non-appealable (Regalado, Remedial Law Compendium,
Vol.1, p. 447, 2009 ed.).
GROUNDS FOR AVAILING THE REMEDY
Q: What are the grounds for petition for relief?
A:
115
1. A judgment or final order is entered, or any other
proceeding is thereafter taken against a party in any
court through fraud, accident, mistake, or excusable
negligence (Sec. 1, Rule 38); or
2. The petitioner has been prevented from taking an
appeal by fraud, accident, mistake, or excusable
negligence (Sec. 2, Rule 38).
Q: Where should the petition be filed?
A:
1. If the petition is filed because of the first ground, the
petition shall be filed in such court and in the same
case (not in another or higher court). The petition shall
pray that the judgment, order or proceeding be set
aside (Sec. 1, Rule 38).
2. If the petition is filed under the second ground, the
petition shall likewise be filed in such court and in the
same case (not in another or higher court) but the
prayer this time is that the appeal be given due course
(Sec. 2, Rule 38).
TIME TO FILE PETITION
Q: When should the petition for relief be filed?
A:
1. Within sixty (60) days after the petitioner acquired
knowledge of the order, judgment or proceedings and
not from the date he actually read the same (Perez v.
Araneta, 103 Phil. 1141).
2. Not more than six (6) months from entry of such
judgment, order or other proceeding (Sec. 3, Rule 38 ).
Note: These two periods must concur and are also not extendible
and never interrupted (Quijano vs. Tameta, L-16473, April 20,
1961). These periods cannot be subject to a condition or a
contingency as they are devised to meet a condition or a
contingency (Vda. De Salvatierra vs. Garlitos, 103 Phil. 157).
Q: May a defendant who has been declared in default
right away avail of a petition for relief from the judgment
subsequently rendered in the case? (2007 Bar Question)
A: No. The remedy of petition for relief from judgment is
available only when the judgment or order in question is
already final and executory, i.e., no longer appealable. It is
an equitable remedy allowed only in exceptional cases from
final judgments or orders where no other remedy is
available (Palmares et. al. vs. Jimenez et al., 90 Phil. 773). It
will not be entertained when the proper remedy is appeal
or certiorari (Fajardo vs. Bayona et al., 98 Phil. 659).
CONTENTS OF THE PETITION
Q: What are the form and contents of the petition for
relief?
A:
1. The petition for relief must be verified;
2. It must be supported by affidavit showing the FAME
relied upon; and
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
3. The affidavit of merit accompanying the petition must
also show facts constituting the petitioners good or Q: Where should the petition be filed?
substantial cause of action or defense (Sec.3, Rule 38).
A:
Q: What is the effect of the absence of an affidavit of Judgments of RTC Judgments of MTC
merits? Filed with the CA Filed with the RTC
Basis It has exclusive Basis RTC as a court
A: The absence of an affidavit of merits is a fatal defect and original jurisdiction over said of general jurisdiction
warrants denial of the petition (Fernandez vs. Tan Tiong action under Rule 47 of the under Sec. 19 (6), BP
Tick, L-15877, April 28, 1961), unless the facts required to Rules of Court 129
be set out in the affidavit of merits also appear in the CA may dismiss the case RTC has no such
verified petition. (Fabar, Inc. vs. Rodelas, L-46394, Oct. 26, outright; it has the discretion discretion. It is required
1977) on whether or not to to consider it as an
entertain the petition. ordinary civil action.
Q: When shall the court issue an order to answer?
Q: What are the contents of the petition?
A: When the petition is sufficient in form and substance to
justify relief, the court in which it is filed, shall issue an A: Just like motions for new trial and petitions for relief
order requiring the adverse parties to answer the same from judgment, the verified petition for annulment must
within fifteen (15) days from the receipt thereof (Sec. 4, contain:
Rule 38). 1. The facts and the law relied upon for annulment as
well as those supporting the petitioners good and
Note: The order shall be served in such manner as the court may
substantial cause of action or defense, as the case may
direct, together with copies of the petition and the accompanying
affidavits (Ibid.). be;
2. A certified true copy of the judgment or final order or
ANNULMENT OF JUDGMENTS OR FINAL ORDERS AND resolution intended for the court and indicated as such
RESOLUTIONS by the petitioner;
3. Affidavits of witnesses or documents supporting the
Q: What is annulment of judgment? cause of action or defense;
4. Sworn certification against forum shopping (Sec. 4,
A: An annulment of a judgment is a remedy in law Rule 47).
independent of the case where the judgment sought to be
annulled was rendered. The judgment may be annulled on Note: The procedure in ordinary civil cases shall be observed.
Should a trial be necessary, the reception of the evidence may be
the ground of extrinsic or collateral fraud (Regalado,
referred to a member of the court or a judge of a Regional Trial
Remedial Law Compendium, Vol. 1, p. 628, 2009 Ed.). Court (Sec.6, Rule 47).

Note: A co-equal court cannot annul the final judgment of a similar

GROUNDS FOR ANNULMENT
court. CA has exclusive jurisdiction over actions for annulment of
judgments of RTC. An action to annul a judgment or final order of
MTC shall be filed in the RTC having jurisdiction in the former and it Q: What are the grounds for the annulment of judgment
shall be treated as an ordinary civil action (Secs. 1 &10, Rule 47). of the RTC? (1998 Bar Question)

Q: When may it be availed of? A:

A: The remedy of annulment of judgment may be availed of
when the ordinary remedies of new trial, appeal, petition
for relief or other appropriate remedies are no longer
available through no fault of the petitioner (Sec. 1, Rule 47).
Note: If the petitioner fails to avail of those other remedies
without sufficient justification, he cannot resort to the action for
annulment provided in the Rules, otherwise he would benefit from
his own inaction or negligence (Regalado, Remedial Law
Compendium, Vol. 1, p. 629, 2009 Ed.).
Q: Who may avail of this remedy?
A: A person need not be a party to the judgment sought to
be annulled. What is essential is that he can prove his
allegation that the judgment was obtained by the use of
fraud and collusion and he would be adversely affected
thereby (Islamic Dawah Council v. CA, G.R. No. 80892, Sept.
29, 1989).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
1. Extrinsic fraud or collateral fraud not a valid ground
if it was availed of, or could have been availed of in a
motion for new trial or petition for relief.
2. Lack of jurisdiction over the subject matter and over
the person May be barred by estoppels by laches,
which is that failure to do something which should be
done or to claim or enforce a right at a proper time or
a neglect to do something which one should do or to
seek or enforce a right at a proper time.
3. Denial of due process (Alaban v. CA, G.R. No. 156021,
Sept. 23, 2005).
Q: What is extrinsic fraud?
A: Fraud is regarded as extrinsic where it prevents a party
from having a trial or from preventing a party from having a
trial or from presenting his entire case to the court, or
where it operates upon matters pertaining not to the
116
 CIVIL PROCEDURE
judgment itself but to the manner in which it is procured
(Alaban v. CA, GR no. 156021, September 23, 2005).
Q: Distinguish extrinsic and intrinsic fraud.
and rendering the same null and void but the
judgment of annulment is without prejudice to the
refilling of the original action in the proper court
(Sec.7, Rule 47).

A: Note: The prescriptive period for the refiling of the action

Extrinsic or Collateral Intrinsic Fraud shall be deemed suspended from the filing of such original
Fraud action until the finality of the judgment of annulment. But
shall not however, be suspended where the extrinsic fraud is
It is the kind of fraud It refers to the acts of a attributable to the plaintiff in the original action (Sec. 8, Rule
that prevents the party at the trial that 47).
aggrieved party from prevents a fair and just
having a trial or determination of the 2. If based on extrinsic fraud- The court, upon motion,
presenting his case to case, and that could may order the trial court to try the case as if a motion
the court, or is used to have been litigated and for new trial was granted (Sec. 9, Rule 47).
procure the judgment determined at the trial
without fair or adjudication of the Q: Who may file the action for the annulment of
submission of the case, such as judgment?
controversy (Magno v. falsification, false
CA, et. al., L-28486, testimony and does not A: An action for annulment can be filed by one who was not
Sept. 10, 1981). constitute a ground for a party to the action in which the assailed judgment was
new trial (Tarca v. rendered.It is a remedy in law independent of the case
Carretero, 99 Phil. 419). where the judgment sought to be annulled is promulgated
(Villanueva v. Nite, 496 SCRA 459). What is essential is that
the petitioner is one who can prove his allegation that the
judgment was obtained by use of fraud and collusion and
that he was affect thereby. (Alaban v. CA, 470 SCRA 697)
PERIOD TO FILE ACTION
Q: What is the remedy in case of annulment on the ground
Q: What is the period to file an action? of lack of jurisdiction?

A: A: In case of lack of jurisdiction over the subject matter of

1. If based on extrinsic fraud, the action must be filed the case, the aggrieved party may refile the action in the
within four (4) years from its discovery. proper court. Where however, the reason for such
2. If based on lack of jurisdiction, the action must be annulment was because of lack of jurisdiction over the
brought before the action is barred by laches or defendant, the action may be refiled in the same original
estoppel (Sec. 2, Rule 47). court provided it has jurisdiction over the subject-matter
and is the court of proper venue or no issue on venue is
Q: Differentiate estoppel from laches raised (Regalado, Remedial Law Compendium, Vol. 1. P.
635, 2009 ed)
A:
Estoppel Laches Q: What is the effect of annulment on the ground of
It is that failure to do It is such inexcusable extrinsic fraud?
something that should delay in the assertion of
be done or to claim or rights or a failure to A: Where the annulment was based on extrinsic fraud
enforce a right at a prosecute a claim, committed by the offending party, the court may, on
proper time or a neglect within a reasonable and motion order the trial court to try the case as if a timely
to do something which proper period, which motion for new trial had been granted therein (Sec. 7, Rule
one should do or warrants the 47).
enforce a right at a presumption that the
proper time party has waived his Q: When is the prescriptive period for refiling of the
right (Regalado, original action deemed suspended?
Remedial Law
Compendium, Vol. 1, p. A: The prescriptive period for the refiling of the original
632, 2009 ed.). action shall be deemed suspended from the filing of such
original action until the finality of the judgment of
EFFECTS OF JUDGMENTS OF ANNULMENT annulment. However, it shall not be deemed suspended if
the extrinsic fraud is attributable to the plaintiff in the
Q: What is the effect of a judgment of annulment? original action (Sec. 8, Rule 47).

A: Note: For purposes of computing the prescriptive period within

1. If based on lack of jurisdiction- It shall have the effect which the same original action may be refiled as authorized by the
of setting aside the questioned judgment or final order Rules, the prescriptive period provided by law for such type of

117 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
action must first be considered. From that period shall be deducted
the length of time which transpired from the date when the action
was originally filed in the trial court up to the finality of the
judgment which eventually annulled the questioned judgment of
that trial court. The resulting balance of the prescriptive period
may then be availed of the by aggrieved party for the refilling of
the same action (Regalado, Remedial Law Compendium, Vol. 1, p.
636, 2009 ed.).
Q: What are the reliefs available in a judgment of
annulment?
A: The judgment of annulment may include the award of
damages and attorneys fees. The court may also issue
orders of restitution or other reliefs as justice and equity
may warrant under the circumstances (Sec. 9, Rule 47).
COLLATERAL ATTACK OF JUDGMENTS
Q: What is a collateral attack on judgment?
A: It is made in another action to obtain a different relief,
an attack on the judgment is made as an incident in said
action. This is proper only when the judgment, on its face is
null and void, as where it is patent that the court which
rendered such judgment has no jurisdiction (Co v. Court of
Appeals, 196 SCRA 705).
Q: What is the distinction between a direct attack from a
collateral attack?
A: A direct attack of a judgment is made through an action
or proceeding the main object of which is to annul, set
aside or enjoin the enforcement of such judgment if not yet
carried into effect; or if the property has been disposed of,
the aggrieved party may sue for recovery. A collateral
attack is made when, in another action to obtain a different
relief, an attack on the judgment is made as an incident in
said action (Co v. Court of Appeals, 196 SCRA 705).
EXECUTION, SATISFACTION AND EFFECT OF JUDGMENTS
Q: What is execution?
A: Execution is the remedy afforded for the satisfaction of a
judgment. It is the fruit and end of suit (Cagayan de Oro
Coliseum vs. Court of Appeals, 320 SCRA 731; Ayo vs.
Violago-Isani, 308 SCRA 543)
DIFFERENCE BETWEEN FINALITY OF JUDGMENT FOR
PURPOSES OF APPEAL; FOR PURPOSES OF EXECUTION
Q: What is meant by final judgment?
A: The term final is used in two senses depending on
whether it is used on the issue of APPEALABILITY or on the
issue of BINDING EFFECT (Regalado, Remedial Law
Compendium, Vol.1, p. 449, 2009 ed.).
1. For the purposes of Appeal, it refers to a judgment
that disposes of a case in a manner that leaves nothing
more to be done by the court in respect thereto. In this
sense, a final judgment is distinguished from an
interlocutory order which does not finally terminate or
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
dispose of the case (Rudecon Management Corp. v.
Singson, 454 SCRA 612).
2. For the purposes of Binding effect, the word final
may refer to a judgment that is no longer appealable
and is already capable of being executed because the
period for appeal has elapsed without a party having
perfected an appeal or if there has been appeal, it has
already been resolved by a highest possible tribunal
(PCGG v. Sandiganbayan, 455 SCRA 526). In this sense,
the judgment is commonly referred to as one that is
final and executory.
Q: Distinguish final judgments for purposes of appeal from
final judgments for purposes of execution.
A:
Final Judgments for Final Judgments for
purposes of appeal purposes of execution
Dispose of, adjudicate, Becomes final and
or determine the right ofexecutory by operation of
the parties. law.
Still subject to appeal After lapse of period to
appeal and no appeal was
perfected, no further
action can be had.
Execution of judgment is Execution of judgment a
not a matter of right. matter of right.
WHEN EXECUTION SHALL ISSUE
AS A MATTER OF RIGHT
Q: When shall execution issue?
A: Execution is a matter of right upon the expiration of the
period to appeal and no appeal was perfected from a
judgment or order that disposes of the action or proceeding
(Sec. 1, Rule 39). Once a judgment becomes final and
executory, the prevailing party can have it executed as a
matter of right, and the issuance of a writ of execution
becomes the ministerial duty of the court (Buaya v.
Stronghold Insurance Co. Inc. 342 SCRA 576).
Q: How does an execution issue?
A: Execution shall issue upon motion. Even in judgments
which are immediately executory, there must be a motion
to that effect and a hearing called for that purpose. A
decision which is immediately executory does not mean
dispensing with three (3)-day notice required by Section
10(c) of Rule 39 of the Rules of Court in the implementation
.
of a writ of execution A sheriff who enforces the writ
without the required notice is running afoul with rules
(Calaunan v. Madolaria, A.M. No. P-10-2810 February 8,
2011)
Q: When is an execution a matter of right?
A: Execution will issue as a matter of right when:
1. The judgment has become final and executory(Section
1, Rule 39);
2. Judgment debtor has renounced or waived his right to
appeal;
118
 CIVIL PROCEDURE
3. The period for appeal has lapsed without an appeal
having been filed;
4. Having been filed, the appeal has been resolved and
the records of the case have been returned to the
court of origin (Florendo v. Paramount Insurance Corp,
now MAA General Insurance Inc., GR No. 167976,
January 20, 2010).
Q: May the court which rendered the judgment refuse to
issue writ of execution?
A: GR: Execution of judgment is a matter of right on the
part of the winning party. The court cannot refuse
execution.
XPNs:
1. When execution is sought more than 5 years from its
entry without the judgment having been revived
2. When the judgment has already been executed by the
voluntary compliance thereof by the parties (Cunanan
v. CA, G.R. No. L-25511, Sept. 28, 1968)
3. When the judgment has been novated by the parties
(Dormitorio v. Fernandez, G.R. No. L-25897, Aug. 21,
1976)
Note: The parties, despite the existence of a judgment, are at
liberty to novate a judgment by entering into a compromise.
A compromise is a contract recognized by substantive law
(Art. 2028, NCC).
4. When a petition for relief is filed and a preliminary
injunction is granted in accordance with Sec. 5, Rule 38
5. When the judgment sought to be executed is
conditional or incomplete (Co Unjieng v.
HijosMabalacat Sugar Co., G.R. No. L-32644, Oct. 4,
1930; Del Rosario v. Villegas, G.R. No. L-25726, Nov.
22, 1926)
6. When facts and circumstances transpire which would
render execution inequitable or unjust (Bacharach
Corp. v. CA, G.R. No. 128349, Sept. 25, 1998)
7. When execution is sought against property exempt
from execution under Sec. 13, Rule 39; or When the
refusal to execute the judgment
8. On equitable grounds, as when there has been change
in the situation of the parties which makes execution
inequitable (Luna v. IAC, GR No. 68374, June 18, 1985).
Q: What is the remedy if a motion for execution is denied?
A: The remedy is mandamus. The issuance of writ of
execution is a ministerial duty of court under sec. 1 of Rule
39, compellable by writ of mandamus. (Greater
Metropolitan Manila Solid Waste Management Committee
vs. Jancom Environmental Corporation, G.R. No. 163663,
June 30, 2006)
AS A MATTER OF DISCRETION
Q: What is Discretionary execution?
A: It constitutes an exception to the rule that a judgment
cannot be executed before the lapse of the period for
119
appeal or during the pendency of an appeal. The execution
of a judgment under this concept is addressed to the
discretionary power of the court and cannot be insisted
upon. Discretionary execution may only issue upon good
reasons to be stated in a special order after due hearing
(Sec. 2, Rule 39).
Note: Good Reasons have been held to consist of compelling
circumstances that justify immediate execution lest the judgment
becomes illusory. Circumstances must be superior, outweighing
the injury or damages that might result should the losing party
secure a reversal of the judgment. (Florendo v.
ParamountInsurance Corp., G.R. No. 167976, Jan. 20, 2010)
Q: What are the requisites for discretionary execution?
A:
1. There must be a motion filed by the prevailing party
with notice to the adverse party;
2. There must be a hearing of the motion for
discretionary execution;
3. There must be good reasons to justify the
discretionary execution; and
4. The good reasons must be stated in a special order
(Sec. 2, Rule 39).
Q: When is execution discretionary?
A:
1. Execution pending appeal; and
2. While trial court has jurisdiction over the case and is in
possession of either the original record or record on
appeal;
3. When trial court has lost jurisdiction but has not
transmitted records of the case to the appellate court;
and
4. When trial court has lost jurisdiction and has
transmitted records (motion for execution pending
appeal with appellate court).
5. Execution of several, separate or partial judgment
(Florendo v. Paramount Insurance Corp, now MAA
General Insurance Inc., GR No. 167976, January 20,
2010).
Q: What are the instances where even before the
judgment has become executory and before appeal was
perfected, the court may order execution upon good
reasons?
A:
1. Where the lapse of time would make the ultimate
judgment ineffective, as where the debtors were
withdrawing their business and assets from the
country;
2. Where the appeal is clearly dilatory;
3. Where the judgment is for support and the beneficiary
is in need thereof;
4. Where the articles subject of the case would
deteriorate;
5. Where the defendants are exhausting their income
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
and have no other property aside from the proceeds of
a property subject of the action;
6. Where the judgment debtor is in imminent danger of
insolvency or is actually insolvent;
7. Where the prevailing party is of advanced age and in a
precarious state of health, and the obligation in the
judgment is non-transmissible; and
8. Where the case involved escrow deposits and the
prevailing party posts sufficient bond to answer for
damages in case of reversal of the judgment
(Regalado, Remedial Law Compendium, Vol. 1, p. 462-
463, 2009 ed.).
Q: Where should an application for discretionary
execution be filed?
A:
1. The motion for discretionary execution shall be
filed with the trial court:
a. While it has jurisdiction over the case and
b. While it is in possession of either the original
record or the record on appeal; or
2. After the trial court has lost jurisdiction, the
motion for execution pending appeal may be filed
in the appellate court (Bangkok Republic
Company Limited vs. Lee, G.R. No. 159806,
January 20, 2006).
Note: In either instance, and whether it is a regular judgment or a
special judgment such as several, separate or partial judgment, the
same procedure and the requirement of a special order stating
good reasons for discretionary execution shall be observed
(Regalado, Remedial Law Compendium, Vol. 1, p. 458, 2009 ed.).
Q: What is the remedy where the judgment subject to
discretionary execution is reversed or annulled?
Aug. 5, 2006, Granger moved for the execution pending
appeal of the decision. Upon receipt of the decision, JP
Latex filed a motion for reconsideration (MR). The RTC
granted the execution pending appeal without acting on
the motion for reconsideration. Is the order of the trial
court correct?
A: No. Discretionary execution is allowed only when the
period to appeal has commenced but before the trial court
loses jurisdiction over the case. The period to appeal where
a motion for reconsideration has been filed commences
only upon the receipt of the order disposing of the MR. The
pendency of a MR, therefore, prevents the running of the
period to appeal.
The MR filed by JP Latex had not been acted upon by the
RTC before it ruled on the motion for execution pending
appeal. The pendency of the MR has prevented the period
to appeal from even commencing. The period within which
a party may move for an execution pending appeal of the
RTCs decision has not yet started. Thus, where there is
pending MR, an order of execution pending appeal is
improper and premature (JP Latex Technology, Inc. v.
Ballons Granger Balloons, Inc., et. al., G.R. No. 177121, Mar.
16, 2009).
Q: How may a discretionary execution be stayed?
A: It may be stayed upon approval by the proper court of a
sufficient supersedeas bond filed by the party against
whom execution is directed, conditioned upon the
performance of the judgment or order allowed to be
executed in case it shall be finally sustained in whole or in
part. The bond thus given may be proceeded against on
motion with notice to the surety (Sec. 3 Rule 39).

A: The trial court may, on motion, issue such orders of

restitution or reparation of damages as equity and justice
may warrant under the circumstances (Sec. 5, Rule 39).

Q: In a complaint filed by Granger for rescission and

damages, the RTC ruled against JP Latex, defendant. On

HOW JUDGMENT IS EXECUTED Judgment is executed by motion within 5 years

from date of its entry
Q: How may a judgment be executed?

A:
Execution is a matter of
right after expiration of
period to appeal and no
appeal is perfected.
Discretionary execution If the winning party does not
upon good reasons move for execution within 5
stated in a special order years but before 10 years from
after due hearing. the date of entry of judgment,
the same can only be revived by
means of new action / petition.

Sheriff executes writ of execution

Losing party is made to indemnify thru:

1. Payment with interest;
U N I V E R S I 2. F Sand
T Y OLevy A N sale T Opersonal
T O of M A S property; 120
2 0 1 3 G O L D 3.
E N NLevy
O T Eand
S sale of real property;
4. Delivery of personal and/or real property.
 CIVIL PROCEDURE
EXECUTION BY MOTION OR BY INDEPENDENT ACTION
Q: What are the modes of execution of final and executory
judgment or order and revived judgment?
A:
1. Execution by motion - if the enforcement of the
judgment is sought within 5 years from the date of its
entry; and
2. Execution by independent action- if the five year
period has elapsed and before it is barred by statute of
limitations (Sec. 6, Rule 39).
Note: The date of finality of judgment or final order shall be
deemed to be the date of its entry. Entry of judgment means the
ministerial recording of a court's final decision, usually by noting it
in a judgment book or civil docket (Blacks Law Dictionary, 8th ed.).
Q: Can motion be dispensed with if the judgment is
immediately executory?
A: No, there must be a motion to that effect and a hearing
called for the purpose (Lou v. Siapno, 335 SCRA 181).
Q: Can execution be effected by motion after five years?
A: GR: No, execution of a judgment can no longer be
effected by filing a motion, after 5 years. The remedy would
be to file an independent action for the revival of the
judgment. When a writ of execution is issued by motion
after 5 years from the date of entry of judgment, such
motion is considered null and void (Tag Fibers, Inc. vs.
NLRC, 344 SCRA 29; Terry vs. People, 314 SCRA 669)
XPNs: However, the court in certain instances allowed
execution of the judgment by mere motion despite the
lapse of the 5 year period where:
1. The delay in the execution of the judgment were
through causes attributable to the judgment debtor;
or
Note: Any interruption or delay occasioned by the debtor will
extend the time within which the writ may be issued without
scire facias (Republic v. CA, l-43179, June 27, 1985).
2. When delay is incurred for his benefit.
121
Q: What is a dormant judgment?
A: A dormant judgement is one which has not been
enforced by motion within 5 years after its entry and is thus
reduced to a mere right of action in favor of judgment-
obligee. It may be enforced by filing an action for revival of
judgment and enforcing the decision therein. (Salvante v.
Cruz, 88 Phil. 236)
Q: What is revival of judgment?
A: This means the enforcement by action of a judgment,
upon which no motion was filed for its execution within 5
years from the time of finality of judgment. This
presupposes that the same can no longer be enforced by
mere motion. (Riano, Civil Procedure: A Restatement for the
Bar, p.503, 2009 ed)
Note: An action to revive judgment is a personal one and not a
quasi in rem (Donelly v. CFI Manila, l-31209, April 11, 1972).
Q: When should the action for revival of judgment be
filed?
A: After 5 years and within 10 years from entry of
judgment, such judgment becomes a mere right of action
and if unsatisfied, the prevailing party can file an action for
revival of judgment (PNB v, Perez,, L-20412, Feb 28, 1966).
Note: However, if the judgment is based upon a compromise which
is immediately final and executory, prescription runs from the date
of its rendition and not from date of entry (Jacinto v. IAC, GR No.
66478, Aug. 28, 1988). If an amendatory and clarificatory judgment
was rendered, it is from the date of the entry thereof that the 10-
year period is reckoned (Sta. Romana v. Lacson, L-27754, April 8,
1981).
Note: 5 and 10 year periods not applicable to judgment for:
(a) support (Canonizado v. Benitez, 127 SCRA 610)
(b) Special proceedings (Rodil v. Benedicto, 95 SCRA 137)
Q: What is the nature of a revived judgment?
A: A revived judgment is deemed a new judgment separate
and distinct from the original judgment (Riano, Civil
Procedure: A Restatement for the Bar, p.504, 2009 ed citing
PNB v Bondoc, 14 SCRA 770).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What judgments or final orders are immediately final
and executory?
A:
1. Judgments in summary judicial proceedings in the
family law (Art. 247, Family Code)
2. Compromise Judgments
3. Judgments for direct contempt (Section 2, Rule 71)
4. Judgments in cases covered by the Rule of Procedure
for Small Claims Cases (Sec. 23, A.M. No. 08-8-7-SC)
Q: How may the period to execute the judgment be
stayed?
A: The period to execute the judgment may be stayed by:
1. Agreement of the parties;
2. Injunction;
3. Taking an appeal or writ of error.
Q: What is the effect of an appeal to the execution of the
judgment?
A: GR: An appeal perfected in due time stays the execution
of a judgment.
XPNs: There are judgments which by express provision of
law are not stayed by appeal:
1. Those judgments which by express provision of the
rules are immediately executory and are not stayed by
appeal (Sec. 4, Rule 39), such as judgment for
injunction, receivership, accounting and support
unless the court rules otherwise or the appellate court
on appeal suspends, modifies, restores or grants the
same. Judgments appealed under Rule 43 not stayed
unless ordered by the Court
2. Those judgments that have become the object of
discretionary execution (Sec. 2, Rule 39).
Q: What are the defenses available in an action for
enforcement?
A:
1. Prescription;
2. Satisfaction of claim; and
3. Counterclaims.
Q: How may the execution be issued in case of death of
the party?
A:
1. Death of an obligee execution will issue in any case,
upon application of his executor, administrator, or
successor-in-interest;
2. Death of an obligor
- Death before levy:
- Action for recovery of real or personal
property or any lien execution shall issue
against his executor or administrator or
successor in interest.
- Action for a sum of money execution will
NOT issue. The judgment obligee should file
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
a claim against the estate of the judgment
obligor under Rule 86;
- Death after levy:
- Execution will issue against his executor,
administrator, or successor-in-interest
because the property is already separated
from the estate of the deceased and is
deemed in custodia legis.
ISSUANCE AND CONTENT OF A WRIT OF EXECUTION
Q: What is a writ of execution?
A: It is a judicial writ issued to an officer authorizing him to
execute the judgment of the court.
Q: What is the lifetime of a writ of execution?
A: The writ is enforceable within 5 years from the entry of
judgment (Sec. 6 of Rule 39).
Q: What are the contents of a writ of execution?
A: The writ of execution is issued in the name of the
Philippines and shall state:
1. The name of the court which granted the motion;
2. The case number;
3. The dispositive portion of the judgment or order
subject of the execution; and
4. Shall require the sheriff or other proper officer to
whom it is directed to enforce the writ according to its
terms, in the manner hereinafter provided:
a) If the execution be against the property of the
judgment obligor, to satisfy the judgment, with
interest, out of the real or personal property of
such judgment obligor;
b) If it be against real or personal property in the
hands of personal representatives, heirs, devisees,
legatees, tenants, or trustees of the judgment
obligor, to satisfy the judgment, with interest, out
of such property;
c) If it be for the sale of real or personal property, to
sell such property, describing it, and apply the
proceeds in conformity with the judgment, the
material parts of which shall be recited in the writ
of execution;
d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the
same, describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents, or profits
covered by the judgment out of the personal
property of the person against whom it was
rendered, and if sufficient personal property
cannot be found, then out of the real property;
and
e) In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages,
rents, or profits due as of the date of the issuance
of the writ, aside from the principal obligation
under the judgment. For this purpose, the motion
for execution shall specify the amounts of the
foregoing reliefs sought by the movants (Sec.8,
Rule 39).
122
 CIVIL PROCEDURE
Note: The motion for execution and the writ of execution must
state specifically the amount of interest, costs, damages, rents, or
profits due as of the date of issuance of the writ, aside from the
principal obligation.
Q: What is the effect when the writ of execution does not
conform to the judgment?
A: If the writ of execution is different from the judgment or
exceeds the terms of the judgment, it is a NULLITY and may
be quashed on motion (Romero et al. v. CA, L-39659, July
30, 1971).
Q: In what cases may a writ of possession be issued?
A:
1. Land registration proceedings (in rem);
2. Extrajudicial foreclosure of a real estate mortgage;
3. Judicial foreclosure of mortgage, (quasi in rem)
provided that the mortgagor is in possession of the
mortgaged realty and no third person, not a party to
the foreclosure suit, had intervened and
4. Execution sale (Mabale v. Apalisok, L-46942, Feb 6,
1979).
Note: An order granting the issuance of a writ of execution of a
final judgment is not appealable, except when order varies in term,
vague and wrong interpretation of judgment (Socorro v. Ortiz;
Molina v. De la Riva, 8 Phil 571; JM Tuazon & Co. Inc. v. Estabillo, L-
20610, Jan. 10, 1975).
Q: What are the grounds to quash the writ of execution?
A: A writ of execution may be quashed on certain grounds:
1. When the writ of execution varies the judgment;
2. When there has been a change in the situation of the
parties making the execution inequitable or unjust;
3. When execution is sought to be enforced against a
property exempt from execution;
4. When it appears that the controversy has never been
submitted to the judgment of the court;
5. When the terms of the judgment are not clear enough
and there remains room for interpretation thereof;
6. When it appears that the writ of execution has been
improvidently issued;
7. When it appears that the writ of execution is defective
in substance, or is issued against the wrong party, or
that the judgment debt has been paid or otherwise
satisfied or the writ is issued without authority
(Reburiano v. CA, 301 SCRA 342).
EXECUTION OF JUDGMENTS FOR MONEY
Q: What are the 3 ways to enforce a judgment for money?
A:
1. Immediate payment on demand
2. Satisfaction by levy
3. Garnishment of debts and credits
123
Q: In executing a judgment for money, what steps shall
the sheriff follow?
A:
1. The officer shall demand from the obligor the
immediate payment of the full amount stated in the
judgment including the lawful fees in cash, certified
check payable to the judgment obligee or any other
form of payment acceptable to him;
2. If the judgment obligor cannot pay all or part of the
obligation in cash, certified check or other mode of
payment, the officer shall levy upon the properties of
the judgment obligor. The judgment obligor shall have
the option to choose which property or part thereof
may be levied upon. If the judgment obligor does not
exercise the option, the officer shall first levy on the
personal properties, if any, and then on the real
properties if the personal properties are insufficient to
answer for the personal judgment but the sheriff shall
sell only so much of the property that is sufficient to
satisfy the judgment and lawful fees;
3. The officer may levy on the debts due the judgment
debtor including bank deposits, financial interests,
royalties, commissions and other personal property
not capable of manual delivery in the possession or
con troll of third parties. This is called garnishment
(Sec. 9, rule 39).
Q: Who has the discretion to choose which property to
levy?
A: The judgment obligor shall have discretion to choose
which property to levy. Therefore, the sheriff cannot and
should not be the one to determine which property to levy
if the judgment obligor cannot immediately pay because it
is the judgment obligor who is given the option to choose
which property or part thereof may be levied upon to
satisfy the judgment (Leachon v. Pascua, A.M. No. P-11-
2972, September, 28, 2011).
Q: May such right to choose be waived by the judgment
obligor?
A: Yes. If he does not exercise the option, he waives such
right, and the sheriff shall levy first on personal property,
then on real property. The sheriff shall only sell property
sufficient to satisfy the judgment and other lawful fees.
(Villarin v. Munasque, 568 SCRA 483)
Q: What is levy?
A: It is the act by which an officer sets apart or appropriates
a part or the whole of the property of the judgment debtor
for purposes of the execution sale.
Q: What is garnishment?
A: It is the act of appropriation by the sheriff of the of
debtors property in the hands of third persons. This is
proper if the property involved is money, stocks, other
incorporeal property (Regalado, Remedial Law
Compendium, Vol. 1, p. 487, 2009 ed.).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Regalado II, A.M. No. P-10-2772 [formerly A.M. OCA I.P.I
Note: The garnishee or the third person who is in the possession of No. 07-2615-P], Feb. 16, 2010).
the property of the judgment debtor is deemed a forced
intervenor. EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS
Q: What is the procedure in garnishment?
Q: What are considered specific acts?
A:
A:
1. A notice is served upon the third person or garnishee
1. Conveyance, delivery of deeds, or other specific acts
having in possession or control of the credits in favor
vesting title;
of the judgment obligor;
2. Sale of real or personal property;
2. The garnishee shall make a written report to the court
3. Delivery or restitution of real property;
within 5 days from service of notice of garnishment
4. Removal of improvements on property subject of
stating whether or not the judgment obligor has
execution; and
sufficient funds to satisfy the judgment. If sufficient,
5. Judgments for the delivery of personal property (Sec.
the garnishee shall deliver the amount in cash or
10, Rule 39).
certified check shall be delivered directly to the
judgment oblige within 10 working days from service
of notice on garnishee.
Q: How can judgment be executed for the following
3. The lawful fees shall be directly paid to the court.
specific acts if the judgment debtor refuses/fails to comply
4. If the amount is insufficient, the garnishee shall make
therewith?
a report as to the amount he holds for the judgment
creditor (Sec. 9, Rule 39)
A:
Judgments for Manner of Execution
Q: Distinguish attachment from garnishment (1999 Bar
Specific Act
Question)
(Sec. 10)
Conveyance, Court can appoint some other
A: Attachment refers to corporeal property in the
delivery of deeds, person at the cost of the
possession of the judgment debtor. Garnishment refers to
or other specific disobedient party and the act
money, stocks, credits and other incorporeal property
acts, vesting title. when so done shall have the
which belong to the judgment debtor but is in the
same effect as if done by the
possession or under the control of a third person.
required party.
Sale of real and Sell such property and apply the
Q: The writ of execution was returned unsatisfied. The
personal property proceeds in conformity with the
judgment obligee subsequently received information that
judgment.
a bank holds a substantial deposit belonging to the
Delivery or If the party refuses to deliver, a
judgment obligor. If the bank denies holding the deposit in
restitution of real writ of execution directing the
the name of the judgment obligor but your client's
property sheriff to cause the defendant to
informant is certain that the deposit belongs to the
vacate is in the nature of a
judgment obligor under an assumed name, what is your
habere facias possesionem and
remedy to reach the deposit? (2008 Bar Question)
authorizes the sheriff to break
open the premises where there
A: A motion may be filed for a court order requiring the
is no occupant therein.
proper bank officer to appear in court for examination
under oath as to such bank deposit, and subsequently
If party refuses to vacate
move for a court order authorizing the filing of an action
property, remedy is not
against such bank for the recovery of the judgment
contempt. The sheriff must oust
obligors deposit/interest therein and to forbid a transfer or
the party. But if demolition is
other disposition of such deposit/interest within 120 days
involved, there must be a special
from notice of the order (Secs. 37 and 43).
order.
Q: How is money judgment implemented if the obligee is Removal of The officer may destroy,
absent at the time of payment? improvements on demolish or remove the
property subject improvements upon special
A: When the judgment obligee is not present at the time of execution order of the court, issued upon
the judgment obligor makes the payment, the sheriff is motion of the judgment obligee.
authorized to receive it. However, the money received Delivery of The officer shall take possession
must be remitted to the clerk of court within the same day personal property and deliver to the party entitled
or, if not practicable, deposited in a fiduciary account with thereto.
the nearest government depository bank. Sheriffs are not
permitted to retain the money in their possession beyond Q: May a judgment debtor be cited in contempt in case of
the day when the payment was made or to deliver the refusal to comply with the judgment of the court?
money collected directly to the judgment oblige (Pea, Jr. v.
UNIVERSITY OF SANTO TOMAS 124
2013 GOLDEN NOTES
 CIVIL PROCEDURE
A: GR: No. The judgment debtor cannot be cited in
contempt of court. Generally, contempt is not a remedy to
enforce a judgment.
XPNs:
1. Refusal to perform a particular act or special
judgments under Sec. 11 where he may be cited in
contempt.
2. In case of the provisional remedy of support pendente
lite under Rule 61, the judgment debtor may still be
cited for contempt even if the decision is not a special
judgment and requires the latter to pay money.
Note: A judgment of specific acts may be performed by other
person if the party refuses to comply with the judgment and the
act by such other person shall have the same effect as if performed
by the party himself. In such case, the disobedient party incurs no
liability for contempt (Regalado, Remedial Law Compendium, Vol.
1, p. 486, 2009 ed.).
Q: What is the remedy If a party refuses to comply with
the judgment of the court?
A:
1. Vacate the property the sheriff must oust the party.
A demolition order from the court is required to effect
removal of an improvement constructed by the
defeated party.
2. Deliver the sheriff will take possession and deliver it
to the wining party
3. Comply the court can appoint some other person at
the expense of the disobedient party and the act shall
have the same effect as if the required party
performed it.
EXECUTION OF SPECIAL JUDGMENTS
Q: What is a special judgment?
A: One which requires the performance of any act, other
than the payment of money or the sale or delivery of real or
personal property, which a party must personally do
because his personal qualifications and circumstances have
been taken into consideration (Sec. 11, Rule 39; Regalado,
Remedial Law Compendium, Vol. 1, p. 486, 2009 ed.).
Q: What is the effect of failure to comply with special
judgments?
A: Failure to comply with special judgment under Section
11 is punishable by imprisonment (Sec 11, Rule 39).
Q: How are special judgments executed?
A: When a judgment requires the performance of any act
other than those mentioned in the two preceding sections,
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 rendered, 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).
EFFECT OF LEVY ON THIRD PERSON
125
Q: What is the effect of levy on execution as to third
persons?
A: It creates a lien in favor of the judgment obligee over the
right, title and interest of the judgment obligor in such
property at the time of the levy, subject to liens and
encumbrances then existing (Sec. 12, Rule 39).
Q: May an encumbered property be levied?
A: Yes. For purposes of the levy, a property is deemed to
belong to the judgment debtor if he holds a beneficial
interest in such property that he can sell or otherwise
dispose of for value. In a contract of mortgage, the debtor
retains beneficial interest over the property
notwithstanding the encumbrance, since the mortgage
only serves to secure the fulfillment of the principal
obligation. Indeed, even if the debtor defaults, this fact
does not operate to vest in the creditor the ownership of
the property; the creditor must still resort to foreclosure
proceedings. Thus, a mortgaged property may still be levied
upon by the sheriff to satisfy the judgment debtors
obligations. (Golden Sun Finance Corporation v. Albano,
A.M. No. P-11-2888, July 27, 2011).
Q: What are the remedies available to a third-party
claimant in levy of real property?
A:
1. Summary hearing before the court which authorized
the execution;
2. Terceria or third party claim filed with the sheriff;
3. Action for damages on the bond posted by judgment
creditors; or
4. Independent reivindicatory action. (Sec. 16, Rule 39)
Note: The remedies are cumulative and may be resorted to by the
third party claimant independently of or separately from the
others. Availment of the terceria is not a condition sine qua non to
the institution of separate action. (Imani v. Metropolitan Bank &
Trust Company, Nov. 17, 2010)
Note: The officer shall not be liable for damages for the taking or
keeping of the property, to any third-party claimant if there is a
bond filed by the winning party. If there is no bond, the sale cannot
proceed. However, the judgment obligee can claim damages
against a third-party claimant who filed a frivolous or plainly
spurious claim, and such judgment obligee can institute
proceedings therefor in the same or separate action.
PROPERTIES EXEMPT FROM EXECUTION
Q: What are the properties exempt from execution?
A:
1. The judgment obligors family home as provided by
law, or the homestead in which he resides, and land
necessarily used in connection therewith;
2. Ordinary tools and implements personally used by him
in his trade, employment or livelihood;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
3. 3 horses, cows, or carabaos, or other beasts of burden,
such as the judgment obligor may select necessarily
used by him in his ordinary occupation;
4. His necessary clothing and articles for ordinary
personal use, excluding jewelry;
5. Household furniture and utensils necessary for
housekeeping, and used for that purpose by the
judgment obligor and his family, such as the judgment
obligor may select, of a value not exceeding P100,000;
6. Provisions for individual or family use sufficient for 4
months;
7. The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other
professionals, not exceeding P300,000 in value;
8. 1 fishing boat and accessories not exceeding the total
value of P100,000 owned by a fisherman and by the
lawful use of which he earns his livelihood;
9. So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the 4
months preceding the levy as are necessary for the
support of his family;
10. Lettered gravestones;
11. Monies, benefits, privileges, or annuities accruing or in
any manner growing out of any life insurance;
12. The right to receive legal support, or money or
property obtained as such support, or any pension or
gratuity from the government; and
13. Properties specially exempted by law.
But no article or species of property mentioned above shall
be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of
a mortgage hereon (Sec. 13, Rule 39).
Q: Outside the Rules of Court, what are other properties
exempt from execution?
A:
1. Property mortgaged to DBP (Sec 26, CA 458)
2. Property taken over by Alien Property Administration
(Section 9[f], US Trading with the Enemy Act)
3. Savings of national prisoners deposited with the Postal
Savings Bank (Act 2489)
4. Backpay of pre-war civilian employees (RA 304)
5. Philippine Government backpay to guerillas (RA 897)
6. Produce, work animals, and farm implements of
agricultural lessees, subject to limitations (Sec 21, RA
6389)
7. Benefits from private retirement systems of
companies and establishments, with limitations (RA
4917)
8. Labor wages, except for debts incurred for food,
shelter, clothing, and medical attendance (Art 1708,
NCC)
9. Benefit payments from the SSS (Sec 16 RA 1161 as
amended by PDs 24, 65, and 177)
10. Copyrights and other rights in intellectual property
under the former copyright law (PD 49 cf Sec 239.3, RA
8293); and
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
11. Bonds issued under RA1000 (NASSCO v. CIR L-17874 31
August 1963) (Regalado, F. Remedial Law
th
Compendium Vol. 1, 9 ed., pp. 481-482)
PROCEEDINGS WHEN PROPERTY IS CLAIMED BY THIRD
PERSONS
Q: When can you file a third party claim?
A: At any time, so long as the sheriff has the possession of
the property levied upon, or before the property is sold
under execution (Sec 14, Rule 57).
Q: What are the requisites for a claim by a third person?
A: Requisites for a claim by a third person:
1. The property is levied;
2. The claimant is a person other than the judgment
obligor or his agent;
3. Makes an affidavit of his title thereto or right to the
possession thereof stating the grounds of such right or
title; and
4. Serves the same upon the officer making the levy and
the judgment obligee (Sec 16, Rule 39).
rd
Q: What is the procedure for a 3 party claim?
A: The 3rd party should make an affidavit of his title
thereto, or right of possession thereof, and should serve
such affidavit upon the sheriff and a copy thereof to the
judgment oblige (Sec. 16, Rule 39). This remedy of the
claiming party is also called terceria (Riano, Civil
Procedure: A Restatement for the Bar, p.523, 2009 ed.).
Q: What is the duty of the officer if the property sought to
be levied on is claimed by another person and proper
proof of ownership or possession is served upon the
officer making levy?
A: 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
the action therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond (Sec. 16, Rule
39).
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
126
 CIVIL PROCEDURE
obligee from claiming damages in the same or a separate
action against a third-party claimant who filed a frivolous or
plainly spurious claim (Ibid).
Q: When the writ of execution is issued in the name of the
Republic of the Philippines and the property object of the
levy is being claimed by a third person, is there a necessity
for filing a bond?
RULES ON REDEMPTION
Q: Is the right of redemption available to any type of
property?
A: No. There is no right of redemption as to personal
properties for the sale is absolute. Such right is available
only to real properties (Sec. 27, Rule 39).

A: No. When the writ of execution is issued in favor of the Q: Distinguish a judgment obligor from a redemptioner?
Republic of the Philippines, or any officer duly representing What are their rights as regards redemption of real
it, the filing of such bond shall not be required, and in case property?
the sheriff or levying officer is sued for damages as a result
of the levy, he shall be represented by the Solicitor General A:
and if held liable therefor, the actual damages adjudged by JUDGMENT OBLIGOR REDEMPTIONER
the court shall be paid by the National Treasurer out of Judgment obligor, or his Does not only refer to
such funds as may be appropriated for the purpose. (Sec. successor in interest (e.g. judgment obligor. He may
16, Rule 39). transferee, assignee, heirs, be a creditor having a lien
joint debtors) by virtue of an attachment,
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT judgment or mortgage on
AND REPLEVIN the property sold, or on
some part thereof,
Certain remedies available to a third person not party to subsequent to the lien
the action but whose property is the subject of execution: under which the property
was sold. Such redeeming
1. Terceria By making an affidavit of his title thereto or creditor is termed a
his right to possession thereof, stating the grounds of redemptioner (Sec. 27, Rule
such right or title. The affidavit must be served upon 39)
the sheriff and the attaching party (Sec. 14, Rule 57).
Upon service of the affidavit upon him, the sheriff shall Within 1 year from the date 1. Within 1 year from the
not be bound to keep the property under attachment of registration of the date of registration of
except if the attaching party files a bond approved by certificate of sale. the certificate of sale if
the court. The sheriff shall not be liable for damages he is the first
for the taking or keeping of the property, if such bond redemptioner, or
shall be filed. 2. Within 60 days from
2. Exclusion or release of property Upon application of the last redemption, if
the third person through a motion to set aside the levy he be a subsequent
on attachment, the court shall order a summary redemptioner,
hearing for the purpose of determining whether the provided that the
sheriff has acted rightly or wrongly in the performance judgment debtor has
of his duties in the execution of the writ of not exercised his right
attachment. The court may order the sheriff to release of redemption (Sec. 28,
the property from the erroneous levy and to return Rule 39)
the same to the third person. In resolving the Once he redeems, no Further redemption is
application, the court cannot pass upon the question further redemption is allowed, even after lapse of
of title to the property with any character of finality allowed. The person to 1 year, as long as each
but only insofar as may be necessary to decide if the whom redemption was redemption is made within
sheriff has acted correctly or not (Ching vs. CA, 423 made must execute and 60 days after the last.
SCRA 356). deliver to the judgment
3. Intervention This is possible because no judgment obligor a certificated of
has yet been rendered and under the rules, a motion redemption.
for intervention may be filed any time before the
rendition of the judgment by the trial court (Sec. 2, Note: The period of redemption is not suspended by an action to
Rule 19). annul the foreclosure sale. The periods for redemption are not
extendible; but the parties may agree on a longer period, in such
4. Accion Reivindicatoria The third party claimant is
case, it would be a conventional redemption.
not precluded by Sec. 14, Rule 57 from vindicating his
claim to the property in the same or in a separate Q: Who may redeem the real property sold?
action. He may file a separate action to nullify the levy
with damages resulting from the unlawful levy and A: Real property sold, or any part thereof sold separately,
seizure. This action may be a totally distinct action may be redeemed by the following persons:
from the former case.

127 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
1. Judgment obligor, or his successor in interest in the d. If a third person has vindicated his claim to the
whole or any part of the property; property (Sec. 34, Rule 39).
2. Redemptioner a creditor having a lien by virtue of an
attachment, judgment or mortgage on the property Q: What is the remedy of a purchaser of real property sold
sold, or on some part thereof, subsequent to the lien on execution in the above situations?
under which the property was sold (Sec 27b, Rule 39).
A:
Note: There is no right of redemption in judicial foreclosure of 1. Bring an action against the judgment creditor;
mortgage under Rule 68. The right of redemption exists only in 2. File a motion for revival of judgment in his name
execution sales and extrajudicial foreclosures where there is against the judgment debtor; or
always a right of redemption (Santos v Register of Deeds, L-26752).
3. Bring an action to recover possession of property (Sec.
.
34, Rule 39).
Q: What are the requirements to enable the redemptioner
or judgment obligor to redeem the real property?
EXAMINATION OF JUDGMENT OBLIGOR WHEN
JUDGMENT IS UNSATISFIED
A: The judgment obligor, or redemptioner, may redeem the
property from the purchaser at any time within 1 year from
Q: What is the effect when the judgment was returned
the date of the registration of the certificate of sale by
unsatisfied? (2008 Bar Question)
paying the purchaser:
1. the amount of his purchase;
A:
2. amount of any assessments or taxes which the
1. The judgment creditor may cause examination of the
purchaser may have paid after purchase;
judgment debtor as to his property and income (Sec.
3. if the purchaser be also a creditor having a prior lien to
36, Rule 39);
that of the redemptioner, other than the judgment
2. The judgment creditor may cause examination of the
under which such purchase was made, the amount of
debtors of the judgment debtor as to any debt owed
such other lien; and
by him or to any property of the judgment debtor in
4. with 1 percent per month interest up to the time of
his possession (Sec. 37, Rule 39);
redemption (Sec 28, Rule 39).
3. If the court finds, after examination, that there is
property of the judgment debtor either in his own
Q: What are the rights of a judgment debtor?
hands or that of any person, the court may order the
property applied to the satisfaction of the judgment
A:
(Sec. 37, Rule 39);
1. To remain in possession of the property until the
4. If the court finds the earnings of the judgment debtor
expiration of period of redemption;
are more than sufficient for his familys needs, it may
2. To collect rents and profits until the expiration of
order payment in fixed monthly installments (Sec. 40,
period of redemption (Sec. 32, Rule 39);
Rule 39);
3. To use the property in the same manner it was
5. The court may appoint a receiver for the property of
previously used;
the judgment debtor not exempt from execution or
4. To make necessary repairs; and
forbid a transfer or disposition or interference with
5. Use it in the ordinary course of husbandry (Sec. 31
such property (Sec. 41, Rule 39);
Rule 39).
6. If the court finds that the judgment debtor has an
ascertainable interest in real property either as
Q: When is the purchaser entitled to possession and
mortgagor, mortgagee, or otherwise, and his interest
conveyance of the property sold on execution?
can be ascertained without controversy, the court may
order the sale of such interest (Sec. 42, Rule 39); and
A: The purchaser is entitled to possession and conveyance
7. If the person alleged to have the property of the
of the property if no redemption is made within one (1)
judgment debtor or be indebted to him, claims an
year from the date of the registration of the certificate of
adverse interest in the property, or denies the debt,
sale (Sec. 33, Rule 39).
the court may authorize the judgment creditor to
institute an action to recover the property, forbid its
Q: What are the instances when the purchaser may
transfer and may punish disobedience for contempt
recover the purchase price from the judgment obligor?
(Sec. 43, Rule 39).
A:
Q: Anna, a Manila resident, sued Betsie resident of
1. If the purchaser or his successor-in-interest fails to
Malolos, Bulacan, in the RTC Manila for a sum of money.
recover possession of the property sold on execution
The trial court rendered judgment holding Anna liable for
sale; or
the entire amount prayed for in the complaint. After the
2. Is evicted due to:
judgment had become final, a writ of execution was issued
a. Irregularities in the proceedings concerning the
by the court. As the writ was returned unsatisfied, Anna
sale;
filed a motion for an order requiring Betsie to appear
b. Reversal or setting aside of judgment;
before it and be examined regarding his property and
c. The fact that the property was exempt from
execution; or
UNIVERSITY OF SANTO TOMAS 128
2013 GOLDEN NOTES
 CIVIL PROCEDURE
income. How should the court resolve the motion? (2002
Bar Question)
A: The RTC Manila should deny the motion. Betsie resides
in Malolos, Bulacan. When a writ of execution is returned
unsatisfied, the judgment obligee, at any time after such
return is made, shall be entitled to an order from the court
which rendered the said judgment, requiring such judgment
obligor to appear and be examined concerning his property
and income before such court or before a commissioner
appointed by it. However, no judgment obligor shall be so
required to appear before a court or commissioner outside
the province or city in which such obligor resides or is found
(Sec. 36, Rule 39).
EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR
Q: When may the court order the examination of the
obligor of the judgment obligor?
A: When the return of a writ of execution against the
property of a judgment obligor shows that the judgment
remains unsatisfied, in whole or in part, and upon proof to
the satisfaction of the court which issued the writ, that a
person, corporation, or other judicial entity has property of
such judgment obligor or is indebted to him. (Sec. 37, Rule
39)
Note: A party or other person may be compelled, by an order of
subpoena, to appear before the court or commissioner to testify as
provided in Sec 36 & 37. Failure to obey may be punished by
contempt. If examination is before a commissioner, he must take it
in writing and certify it to the court. All examinations and answers
must be under oath.
EFFECTS OF JUDGMENT OR FINAL ORDERS
Q: What are the effects of judgment or final orders?
A:
1. If judgment or final order is on a specific thing, the
same is conclusive upon the title to thing (Sec. 47, Rule
39).
2. If judgment or final order is in respect to the probate
of a will, or the administration of the estate of a
deceased person, the same is conclusive upon the will
or administration but the probate of the will or the
granting of letters of administration shall only be
prima facie evidence of the death of the testator or
intestate and not a conclusive presumption of death
(Sec.47, Rule 39).
3. If judgment or final order is in respect to the personal,
political or legal condition or status of a particular
person or his relationship to another, the judgment or
final order is conclusive upon the condition, status or
relationship (Sec.47, Rule 39).
4. In other cases, if the judgment be with respect to the
matter directly adjudged or as to any other matter
that could have been raised in relation thereto, the
judgment or final order is conclusive between the
parties and their successors in interest by title
subsequent to the commencement of the action or
special proceeding, litigating for the same thing and
129
under the same title and the same capacity,
relationship (Sec.47, Rule 39).
5. In any other litigation between the same parties or
their successors in interest, that only is deemed to be
adjudged in a former judgment or final order which
appear upon its face to have been adjudged, or which
was actually and necessarily included therein or
necessary thereto (Sec.47, Rule 39).
Q: After the judgment has become final, may the court
refuse to issue the writ of execution?
A: GR: Trial Court has ministerial duty to order execution of
final and executory judgments. It cannot refuse execution
and is compellable by mandamus.
XPN: (Same as grounds to Quash writ of execution)
1. Change in the situation of the parties which makes the
execution inequitable or unjust;
2. Writ of execution varies judgment;
3. Controversy was never submitted to the judgment of
the court;
4. Execution is sought against property exempt from
execution;
5. Terms of the judgment are not clear and leaves room
for interpretation;
6. Writ of execution is improvidently issued;
7. Writ of execution is defective in substance;
8. Writ of execution is issued against the wrong party;
9. Judgment debtor has been paid or otherwise satisfied;
and
10. Writ of execution was issued without authority.
Note: In the above exceptions, remedy is certiorari (Rule 65).
Q: When may execution of final and executory judgment
be enjoined?
A:
1. Upon filing of a petition for relief from judgment;
2. Attack against a judgment which is void for lack of
jurisdiction, or obtained through fraud;
3. On equitable grounds; and
4. In cases falling under the 10 exceptions above.
Q: Can final and executory judgments be modified?
A: GR: Final and executory judgments cannot be amended
or modified. Any amendment which substantially affects a
final and executory judgment is null and void for lack of
jurisdiction.
XPN: Judgment may be modified as to:
1. Clerical errors or mistakes - errors not as a result of
exercise of judicial functions
2. To clarify ambiguity; or
3. To enter nunc pro tunc orders to make a present
record of an order which the court rendered at a
previous terms but, by inadvertence has not been
entered.
4. In judgments for support, which can always be
amended from time to time, in light of the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
circumstances of the parties (Regalado, Remedial Law therein pending rendition, and for purposes of the ultimate
Compendium, Vol. 1, p. 454, 2009 ed.). effects, of a final judgment in the case.

Q: What are the requisites of res judicata? Q: What are the provisional remedies under the rules?

A: A:
1. Former judgment or order must be final and 1. Preliminary attachment (Rule 57)
executory; 2. Preliminary injunction (Rule 58)
2. Court has jurisdiction over subject matter and parties; 3. Receivership (Rule 59)
3. Former judgment or order was on merits; and 4. Replevin (Rule 60)
4. Identity of parties, subject matter, and cause of action 5. Support pendente lite(Rule 61)
between first and second action (TEST: determine
identity if cause of action) (Fels inc v Province of Q: Are provisional remedies available in criminal cases?
Batangas, GR no 168557, Feb. 19, 2007).
A: Yes. The provisional remedies in civil actions may
Q: What are the aspects of res judicata? likewise be availed of in connection with the civil action,
insofar as there are applicable. (Section 1, Rule 127).
A: The doctrine of res judicata has two aspects. The first,
known as "bar by prior judgment," or "estoppel by verdict," Q: What are the Other Provisional Remedies available?
is the effect of a judgment as a bar to the prosecution of a
second action upon the same claim, demand or cause of A:
action. 1. Temporary custody over a minor
2. Deposit in Actions for Annulment of Sale (Reyes v. Lim)
The second, known as "conclusiveness of judgment" or 3. Restraining order against the accused in cases of
otherwise known as the rule of auter action violence among immediate family members living in
pendant, ordains that issues actually and directly resolved the same domicile and household
in a former suit cannot again be raised in any future case 4. Hold departure orders issued by Regional Trial Courts
between the same parties involving a different cause of in criminal cases
action. It has the effect of preclusion of issues only. (Sps. 5. Interim reliefs under Writ of Amparo
Rasdas v. Estenor, G.R. No. 157605 December 13, 2005) a. Temporary Protection Order
b. Witness Protection Order
ENFORCEMENT AND EFFECT OF FOREIGN JUDGMENTS OR c. Inspection Order
FINAL ORDERS d. Production Order (Riano, Civil Procedure: A
Restatement for the Bar, p. 534-536, 2009
Q: What is the effect of a foreign order? ed)
6. Temporary Protection Order under Anti-Violence
A: Against Women and their Children Act of 2004
1. Against a specific thing conclusive upon title to the (RA 9262)
thing. 7. Provisional Remedies under the Human Security
2. Against a person presumptive evidence of a right as Act of 1997 (RA 9372)
between the parties and their successors in interest by 8. Provisional Remedies under the Rule on
a subsequent title (Sec 48, Rule 39). Corporate Rehabilitation (AM 00-8-10-SC):
a. Stay order
Note: In both instances, the judgment may be repelled by evidence b. Receivership
of want of jurisdiction, notice, collusion, fraud, or clear mistake of
law or fact.
NATURE OF PROVISIONAL REMEDIES
Q: How to enforce a judgment of a foreign court? (2007
Bar Question)
Q: What is the nature of provisional remedies?
A: Judgment of foreign courts may only be enforced in the
A: They are temporary measures availed of during the
Philippines through an action validly heard in a Regional
pendency of the action and ancillary because they are mere
Trial Court. Thus, it is actually the judgment of the
incidents and are dependent upon the result of the main
Philippine court enforcing the foreign judgment that shall
action (Regalado, Remedial Law Compendium Vol. I, p. 684,
be executed. th
10 ed.). They are interim, ancillary and provisional.
PROVISIONAL REMEDIES (RULE 57-61) Note: Injunction can be a main action if it seeks to permanently
enjoin the defendant through a final injunction (not preliminary)
Q: What are provisional remedies? (1996 Bar Question) issued by the court and contained in the judgment (PEZA v.
Carantes et al., G.R. No. 181274, June 23, 2010).
A: They are writs and processes available during the
pendency of the action which may be resorted to by a Q: What are the purposes of provisional remedies? (1996
litigant to preserve and protect certain rights and interests Bar Question)
UNIVERSITY OF SANTO TOMAS 130
2013 GOLDEN NOTES
 CIVIL PROCEDURE
also issue the remedy of support pendente lite. (e.g. Art
A: To: 345 (3) RPC, in crimes against chastity, in every case to
1. preserve or protect their rights or interests while the support the offspring)
main action is pending
2. secure the judgment Q: When are these provisional remedies available?
3. preserve the status quo or
4. preserve the subject matter of the action A:
1. Attachment, injunction and support pendente lite
JURISDICTION OVER PROVISIONAL REMEDIES may be applied for before final judgment
2. Replevin may be applied before the answer
Q: Which court has jurisdiction over applications for 3. Receivership may be applied for at any stage of the
provisional remedies? action and even after final judgment.

A: GR: Applications must be filed with the court having

jurisdiction over the pending principal action. Even an
inferior court may grant such remedy. However, where the
main action is for support, the provisional remedy of
support pendente lite may not be granted by a Municipal
Trial Court because the main action is within the jurisdiction
of the Family Court (Riano, Civil Procedure: A Restatement
for the Bar, p. 532, 2009 ed)

XPN: In criminal actions, as long as the civil aspect is tried

together with it, the RTC or MTC having jurisdiction may
Q: Differentiate the different kinds of provisional remedies.

A:
Preliminary Preliminary Receivership (Rule Replevin (Rule Support Pendente Lite (Rule 61)
Attachment (Rule Injunction (Rule 58) 59) 60)
57)
Subject Matter
Personal and real Particular act(s) Personal and real Personal Money or other forms of support
property property property capable
of manual
delivery
Jurisdiction (Court which can grant it)
SC, CA, RTC, SC, CA, RTC, Family SC, CA, RTC, Family RTC, Family GR: Family Court
Family Court, Court, Metropolitan, Court, Metropolitan, Court,
Metropolitan, Municipal and Municipal and Metropolitan, XPN: In criminal actions, as long as
Municipal and Municipal Circuit Municipal Circuit Municipal, and the civil aspect is tried together with
Municipal Circuit Trial Courts Trial Courts Municipal Circuit it , the RTC or MTC having jurisdiction
Trial Courts Trial Courts may also issue this remedy.(e.g Art.
345 (3) RPC, in crimes against
chastity, In every case to support the
offspring..)
Who may grant it
Courts where Only the Court where Court where action is Only the court Court of origin and appellate court.
action is pending, the action is pending, the CA or where action is (Ramos v. CA, GR No. L-31897, June
the CA or the SC pending; Lower the SC, or a member pending. 30, 1972)
(Sec. 2) court, CA or SC thereof, even if
provided action is action is pending in
pending in the same the lower court.
court which issues Appellate court may
the injunction (Sec. 2) allow application for
receivership to be
decided by the court
of origin (Sec. 1)
When available
At any stage of the At any stage of the At any stage of the At the At the commencement of the action
action but before action but before proceeding and even commencement or at any time prior to the judgment
entry of final judgment or final after finality of of the action but or final order (Sec. 1)
judgment (Sec. 1) order (Sec. 1) judgment; anytime before answer is

131 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

prior to satisfaction filed (Sec. 1)

of judgment
How applied for
File affidavits and File verified File verified File affidavits and File verified application; bond not
applicants bond application and application and applicants bond required (Sec. 1)
(Sec. 3) applicants bond; if applicants bond; (Sec. 2)
application is application may also
included in the be included in
initiatory pleading, initiatory pleading in
the adverse party actions for
should be served foreclosure of
with summons mortgage (Secs. 1
together with a copy and 2)
of the initiatory
pleading and the
applicants affidavit
and bond (Sec. 4)

Preliminary Attachment Preliminary Receivership (Rule 59) Replevin (Rule 60) Support Pendente Lite
(Rule 57) Injunction (Rule 58) (Rule 61)
Purpose(s)
1. To seize the To require a party or To place the property To recover possession To compel adverse
property of the a court, agency or a subject of an action or of party to provide
adverse party in person to refrain proceeding under the personal property. support while the
advance for the from doing a control of a third party (1999 Bar Question) action is pending in
satisfaction of particular act or to for its preservation court.
judgment that may require the and
be recovered in performance of a administration litis
cases falling under particular act pendentia and to
Sec.1, Rule 57. protect the rights of
2. To enable the court To prevent future all the parties under
to acquire injury and maintain the direction of the
jurisdiction over the the status quo. court.
action by the actual (Kencht v. CA, G.R.
or constructive No. 97962, Nov. 17,
seizure of the 1993)
property in those
instances where
personal service of
summons on the
creditor cannot be
effected. (Quasha v.
Juan, G.R. No. L-
54158, Nov. 19,
1982)
Ground(s)
1. GR: In an action for 1. That the 1. When the Applicant is: When equity and
the recovery of a applicant is applicant has an 1. The owner of the justice require, having
specified amount or entitled to the interest in the property claimed; due regard to the
damages against a relief demanded property or fund or probable outcome of
party who is about which consists in subject of the the case and such other
to depart from the restraining the proceeding and 2. Entitled to the circumstances as may
Philippines with commission or such property is possession suggest the
intent to defraud continuance of in danger of being thereof but the reasonability of
his creditors; the act lost, removed or property is granting support
XPN: complained of, materially injured wrongfully pendente lite
a. moral and or in requiring unless a receiver detained by the
exemplary the performance is appointed; adverse party
of an act for a 2. In foreclosure of (Sec. 2)
2. In an action for limited period or mortgage, when
money or property perpetually the property is in
embezzled or danger of being

UNIVERSITY OF SANTO TOMAS 132

2013 GOLDEN NOTES
 CIVIL PROCEDURE

fraudulently 2. Commission, wasted or

misapplied or continuance or dissipated or
converted to his non- materially injured
own use by a public performance of and that its value
officer, or by any the act during is probably
other person in a the litigation insufficient to
fiduciary capacity, would probably discharge the
or for a willful work injustice to mortgage debt or
violation of duty; the applicant; or that it has been
agreed upon by
3. In an action to 3. Party, court, the parties;
recover the agency or a 3. After judgment,
possession of person is doing, to preserve the
property unjustly or threatening, or is property during
fraudulently taken, attempting to the pendency of
detained or do, or is an appeal or to
converted, when procuring or dispose of it
the property has suffering to be according to the
been concealed, done, some act judgment or to
removed or probably in aid execution
disposed of to violation of the when execution
prevent its being rights of the has been
found or taken by applicant returned
the applicant or an respecting the unsatisfied of the
authorized person; subject of the judgment obligor
action and refuses to apply
4. In an action against tending to his property in
a party who has render the satisfaction of the
been guilty of fraud judgment judgment, or
in contracting the ineffectual (Sec. otherwise to
debt or incurring 3) carry the
the obligation or in judgment into
its performance effect; or
4. When
5. In an action against appointment of
a party who has receiver is the
removed or most convenient
disposed of his and feasible
property, or is means of
about to do so, with preserving,
intent to defraud administering or
his creditors; disposing of the
property in
6. In an action against litigation (Sec. 1).
a party who does
not reside and is
not found in the
Philippines, or on
whom summons
may be served by
publication
Whether principal or ancillary action
Ancillary remedy Principal action/ Principal action/ Principal action/ Ancillary to:
ancillary remedy ancillary remedy ancillary remedy 1. Action for support;
or
2. In a criminal action
where civil liability
includes support
for the offspring
provided the civil
aspect thereof has
not been waived,

133 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

reserved or
instituted prior to
its filing.
Effectivity
During the pendency of During the pendency Until discharged by During the pendency During the pendency of
the case unless earlier of the case unless the court of the case unless the the case.
discharged or quashed earlier discharged or defendant files a
by the court quashed by the court redelivery bond.

Preliminary Preliminary Injunction Receivership (Rule Replevin (Rule 60) Support Pendente Lite
Attachment (Rule 57) (Rule 58) 59) (Rule 61)
Requirement of Hearing
Not required; may be GR: Required Required Not required ; may Required Within 3 days
issued ex parte (2001 be issued ex parte after comment is filed or
Bar Question) XPN: Great or after expiration of period
irreparable injury of filing
would result / extreme
urgency and applicant
will suffer grave
injustice and
irreparable injury (Sec.
5)
Bond Requirement
Bond executed to the adverse party in the amount fixed by the court to Bond executed to No bond required.
cover the costs which may be adjudged to the adverse party and all the adverse party in
damages that he may sustain by reason of the granting of provisional double the value of
remedy prayed for, if the court shall finally adjudge that the applicant was the property, for
not entitled thereto (Sec. 4, Rule 57; Sec. 4, Rule 58, Sec. 2, Rule 59) the return of the
property to the
2 bond requirement for receivership: adverse party if
1. Filed by the applicant; and such return be
2. Filed by the receiver. adjudged and for
the payment to the
adverse party of
such sum as he may
recover from the
applicant in the
action (Sec. 2)
Immediately Executory
No Yes Yes No Yes
Discharge of Remedy
By counter-bond: Party against whom the provisional remedy is availed of may move for the Not applicable.
discharge of the provisional remedy granted by filing a counter-bond in an amount equal to that
fixed by the court or to the value of the property if with respect to a particular property to secure
the payment of any judgment that the adverse party may recover in the action.
Counter Bond
Cash deposit may be Filing of counter-bond Amount of counter- Amount of counter- Not applicable.
made in lieu of the made only upon bond to be fixed by bond should be
counter-bond (Sec. 12) showing that the the court (Sec. 3) double the value of
issuance or the property (Sec.
continuance thereof 5)
would cause
irreparable damage to
the party or person
enjoined while the
applicant can be fully
compensated for such
damages as he may
suffer; counter-bond
alone will not suffice to
discharge the
injunction (Sec. 6)

UNIVERSITY OF SANTO TOMAS 134

2013 GOLDEN NOTES
 CIVIL PROCEDURE

Preliminary Preliminary Injunction Receivership (Rule Replevin (Rule 60) Support Pendente Lite
Attachment (Rule 57) (Rule 58) 59) (Rule 64)
Other Grounds For Discharge
1. Improper or 1. Insufficiency of 1. Appointment 1. Plaintiffs bond is
irregular issuance the application was obtained found to be
or enforcement or (Sec. 6) without insufficient or
insufficiency of sufficient cause. defective and is not
bond. (Sec. 13) 2. Other grounds replaced with
2. Judgment (e.g. applicants 2. Bond posted by proper bond; or
rendered against bond is the applicant /
attaching creditor insufficient/ receiver is 2. Property is not
(Sec. 19) defective), upon insufficient delivered to the
3. Property attached affidavits of the (Sec. 3). plaintiff for any
is exempt from party or person reason (Sec. 6).
execution (Sec. 2 enjoined
and 5)
4. Attachment is
excessive, but the
discharge shall be
limited to the
excess (Sec. 13).
Damages in Case Applicant is Not Entitled Thereto or
For Irregularity of the Procurement Of the Provisional Remedy
Requisites: When the judgment or
1. Owner of the property attached must file before trial or before perfection of appeal or before final order finds that
judgment becomes executory an application for damages; the person who has
2. Party who availed of provisional remedy and his surety must be notified, showing right to been providing support
damages and amount thereof; and pendente lite is not
3. Such damages may be awarded only after proper hearing and shall be included in the judgment liable therefor, the
of the main case. court shall order the
recipient to return the
If the judgment of the appellate court is favorable to the party against whom provisional remedy was amounts already
effected: received with interest
Application must be filed with the appellate court before the judgment of the appellate court from the date of actual
becomes executory. Appellate court may allow application to be heard and decided by the trial payment, without
court. prejudice to the right of
the recipient to obtain
If bond or deposit given by the party availing of the provisional remedy be insufficient or fail to satisfy reimbursement in a
the award: separate action from
Adverse party may recover damages in the same action (Sec. 20, Rule 57; Sec. 8, Rule 58; Sec. 9, Rule the person legally
59; Sec. 10, Rule 60) obliged to give support.
.
Note: Any award of damages for the wrongful issuance of a provisional remedy should be recovered in the same If the recipient fails to
case. The recovery of damages cannot be had in a separate action. reimburse the amount,
the person who
provided the same may
seek reimbursement in
a separate action from
the person legally
obliged to give such
support (Sec. 7)

PRELIMINARY ATTACHMENT (RULE 57)
It is a provisional remedy issued upon the order of the court
where an action is pending to be levied upon the property
of the defendant so the property may be held by the sheriff
as a security for the satisfaction of whatever judgment may
be rendered in the case (Davao Light and Power, Inc.v. CA,
204 SCRA 343).
Note: There is no separate action called preliminary attachment. It
is not a distinct proceeding and is availed of within a principal
action because it is a mere provisional remedy. The grant of

135 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
remedy is addressed to the discretion of the court (Riano, Civil
Procedure: A Restatement for the Bar, p. 537, 2009 ed.)

Q: What are the purposes of preliminary attachment?

A: Preliminary attachment is designed to:

1. To seize the property of the debtor in advance of final
judgment and to hold it for purposes of satisfyng said
judgment; or
2. To enable the court to acquire jurisdiction over the
action in those instances where personal service of
summons on the creditor cannot be effected
(Mabunag vs. Gallimore, 81 Phil 354; Quasha, et. al.,
vs. Juan et. al., L-49149, Nov. 19, 1982; Regalado,
th
Remedial Law Compendium Vol. I, p. 691, 10 ed)

Q: What are the kinds of attachment? Explain each.

A:
(1) Preliminary Attachment
Issued at the commencement
of the action or at anytime
before entry of the judgment
as security for the satisfaction
of any judgment that may be
recovered in the cases
provided for by the rules. Here,
the court takes custody of the
property of the party against
whom the attachment is
directed.
Note: This is the regular form
of attachment which refers to
corporeal property in the
possession of the party
(Regalado, Remedial Law
Compendium Vol. I, p. 691,
10th ed.).
(2) Garnishment (3) Levy on Execution
It is a kind of attachment in which the Writ issued by the court after judgment by which
plaintiff seeks to subject either the the property of the judgment obligor is taken into
property of the defendant in the the custody of the court before the sale of the
hands of the third person called the property on execution for the satisfaction of a final
garnishee, to his claim or the money in judgment. It is a preliminary step to the sale on
which said third person owes the execution of the property of the judgment debtor
defendant. It simply impounds the (Riano, Civil Procedure: A Restatement for the Bar,
property in the possession of the p. 571-572, 2009 ed.).
garnishee and maintains the status
quo until the main action is finally
decided. Further, by means of
garnishment, the plaintiff reaches
credits belonging to the defendant
and owing to him from a third person
who is a stranger to the litigation.
Note: Garnishment does not involve
the actual seizure of the property
which remains in the hands of the
garnishee. It refers to money, stocks,
credits and other incorporeal
property which belong to the party
but are in the possession or under
control of a third person.
Garnishment does not lie against the
funds of the regular departments or
offices of the Government, but funds
of public corporations are not
exempt ftom garnishment (PNB vs.
Palaban, et. al., L-33112, June 15,

UNIVERSITY OF SANTO TOMAS 136

2013 GOLDEN NOTES
 CIVIL PROCEDURE

1978; Regalado p. 691-694).

Q: Who may apply for a preliminary attachment?
A: Any party, can avail of preliminary attachment as long as
any of the grounds therefor exists. A defendant on his
counterclaim, a co-party on his cross-claim, and a third-
party plaintiff on his third-party claim may move for the
issuance of the writ (Sec. 1, Rule 57; Regalado, Remedial
th
Law Compendium Vol. I, p. 690, 10 ed.).
Q: What is the nature of the proceeding?
A: Attachment is in the nature of the proceeding quasi in
rem, although sometimes reffered to as an action in rem, in
which case, jurisdiction over the res is sufficient. When
availed of and is granted in an action purely in personam, it
converts the action to one that is quasi in rem. This
transformation of the nature of the action dispenses with
the need for acquiring jurisdiction over the person of the
defendant. Since attachment is directed against the
property of the defendant, the court may validly proceed
with the action as long as jurisdiction over the property is
acquired.
1. DEPART. Actions for the recovery of a specified
amount of money or damages, other than moral and
exemplary, on a cause of action arising from law,
contract, quasi contract, delict or quasi-delict against a
party who is about to depart from the Philippines
which intent to defraud his creditors;
2. EMBEZZLEMENT. Actions for money or property
embezzled or fraudulently misapplied or converted to
his own use by a public officer, or an officer of a
corporation, or an attorney, factor, broker agent, or
clerk, in the course of his employment as such, or by
other person in a fiduciary capacity, or for a willful
violation of duty;
3. RECOVER POSSESSION. Actions to recover the
possession of property unjustly or fraudulently taken,
detained or converted, when the property, or any part
thereof, has been concealed, removed, or disposed of
to prevent its being found or taken by the applicant or
an authorized person;
4. FRAUD. Actions against a party who has been guilty of
a fraud in contracting the debt or incurring the
obligation upon which the action is brought or in the
performance thereof

Q: Distinguish Preliminary attachment under Rule 57 from Note: Includes both kinds of fraud, i.e., fraud in contracting
Final attachment under Rule 39 the obligation and fraud in the performance thereof
(Regalado, Remedial Law Compendium Vol. I, p. 691, 10th
ed.)
A:
PRELIMINARY FINAL ATTACHMENT
5. DEFRAUD CREDITORS. Actions against a party who has
ATTACHMENT (Rule 39)
removed or disposed of his property, or is about to do
(Rule 57)
so, with intent to defraud his creditors;
It is an auxiliary remedy It is a means for the
to give security for a execution of a final
6. Actions against non-residents not found in the
judgment still to be judgment.
Philippines, or person upon whom summons may be
rendered.
served by publication (Sec. 1 Rule 57)
There is no sale because It should always be
the decision has not yet accompanied by a sale
REQUISITES
been rendered. at public auction.
Resorted to at the Available after the Q: What are the requisites for the issuance of an order of
commencement of the judgment in the main writ of preliminary attachment?
action or at any time action had become
before the entry of executory, and for the A:
judgment, for the satisfaction of said 1. An affidavit executed by the applicant, or of some other
temporary seizure of judgment. person who personally knows the facts showing that:
the property of the a. A sufficient cause of action exists
adverse party b. The case must be any of those where preliminary
The proceeds of the The proceeds of the sale attachment is proper
sale, in cases allowed, are turned over to the c. There is no sufficient security for the claim sought to
are in custodia legis attaching creditor be enforced
(Sec. 11) d. The amount due to the applicant, or the value of the
property the possession of which he is entitled to
GROUNDS FOR THE ISSUANCE OF WRIT OF ATTACHMENT recover, is as much as the sum for which the order is
granted above all legal counterclaims
Q: What are the grounds for the issuance of the writ of
attachment? 2. Attachment bond - a bond executed to the adverse party
in an amount to be fixed by the judge, not exceeding the
A: plaintiffs claim, conditioned that the latter will pay all the
costs which may be adjudged to the adverse party and all
137 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
damages which he may sustain by reason of the
attachment, if the court shall finally adjudge that the
applicant was not entitled thereto (Sec. 3 and 4, Rule 57)
Note: A hearing on a motion or application for preliminary
attachment is not generally necessary unless otherwise directed
by the trial court (Toledo v. Burgos, 168 SCRA 513). This is because
an order of attachment may also be issued ex parte.
Note: Failure to allege matters required under Sec. 3, Rule 57
renders the writ totally defective as the judge issuing the writ acts
in excess of jurisdiction. (K.O Glass Construction Co., Inc. vs.
Valenzuela, et al., L-48756, Sept. 11, 1982; Regalado, Remedial Law
Compendium, Vol.1, p. 694, 10th ed)
Q: At what stages of a proceeding may preliminary
attachment be applied for?
A: It may be applied for
1. At the commencement of the action; or
2. At any time before entry of judgment (Sec. 1, Rule 57)
Note: The application may be incorporated in the verified
complaint alleging all the grounds, and complying with all the
requisites for the grant of the application.
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;
AFFIDAVIT AND BOND
= Q: What are the conditions of the applicants bond?
Q: What are the stages in the issuance of a writ of
attachment?
A:
1. The court issues the order granting the application;
2. The writ of attachment is issued pursuant to the order
granting the writ; and
3. The writ is implemented
Note: For the initial two stages, it is not necessary that jurisdiction
over the person of the defendant should first be obtained.
However, to validly implement the writ, it is required that the
court acquire jurisdiction over the defendant for without such
jurisdiction, the court has no power and authority to act in any
manner against the defendant. Thus, any order issued by the court
will not bind the defendant (Mangila v. CA, G.R. No. 125027, Aug.
12, 2002; Regalado p. 695).
Q: How may the ORDER of attachment be issued?
A: The writ of preliminary attachment may be issued:
1. Ex parte and even before summons is served upon the
defendant.
Note: An ex parte issuance of the writ is intended to pre-
empt any possible disposition of property by the adverse
property to the detriment of the attaching creditor and thus
defeat the very purpose of attachment. (Mindanao Savings &
Loan Association, Inc. v. CA, 172 SCRA 480)
Note: The application for preliminary attachment ex parte
may be denied because the fundamental requisites under
Rule 57, Section 1 did not exist, and not because ex
parte applications are per se illegal (Davao Light & Power Co.,
Inc v. CA, G.R. No. 93262 December 29, 1991).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
2. Upon motion and notice of hearing, by the court in
which the action is pending and may even be issued by
the CA or the SC (Sec. 2, Rule 57);
Note: A hearing on a motion or application for preliminary
attachment is not generally necessary unless otherwise
directed by the trial court (Toledo v. Burgos, 168 SCRA 513).
Q: What are the contents of the ORDER of attachment?
A: It must require the sheriff of the court to attach so much
of the property in the Philippines of the party against whom
it is issued, not exempt from execution, as may be sufficient
to satisfy the applicants demand, unless such party makes
deposit or gives a bond in an amount equal to that fixed in
the order, which may be the amount sufficient to satisfy
the applicants demand or the value of the property to be
attached as stated by the applicant, exclusive of costs.
Note: Several writs may be issued at the same time to the sheriffs
of the courts of different judicial regions.
Q: What are the requirements for the grant of the ORDER
of attachment?
A: Affidavit stating the matters enumerated under Sec. 3 of
Rule 57 as mentioned above and a bond
A: For the applicant to pay all the costs which may be
adjudged to the adverse party and all damages which he
may sustain by reason of the attachment if the court shall
finally adjudge that the applicant was not entitled thereto
(Sec. 4, Rule 57).
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS
Q: What is the rule on prior or contemporaneous service
of summons?
A: Enforcement of the writ of preliminary attachment must
be preceded by or simultaneously accompanied by service
of summons, copy of complaint, application and affidavits
for the attachment and the bond upon the adverse party.
Jurisdiction must first be acquired through valid service of
summons first before a preliminary attachment may be
enforced.
Q: May a writ of preliminary attachment be issued
notwithstanding the absence of service of summons?
A: Yes. It may be granted and issued even before summons
is served upon the defendant. However, the writ may not
be enforced and may not be validly implemented unless
preceded by a service of summons upon the defendant, or
simultaneously accompanied by service of summons, a
copy of the complaint, the application for attachment, the
order of attachment and the attachment bond (Davao Light
& Power Co., Inc. v. CA, G.R. No. 93262, Dec. 29, 1991).
Q: Alfred filed an action against Banjo for collection of
sum of money with an ex-parte application for a writ of
138
 CIVIL PROCEDURE
preliminary attachment which was granted by the trial
court. A notice of garnishment was served by the sheriff
upon the bank and summons was subsequently served
upon Banjo. Banjo then filed a motion to dissolve the writ
of preliminary attachment on the ground that the court
did not acquire jurisdiction over his person as the writ was
served ahead of the summons. Should the motion be
granted? (2005 Bar Question)
A: No, the motion should be denied. The fact that the writ
of preliminary attachment was served ahead of the
summons did not affect the jurisdiction of the court over
his person. It makes the writ unenforceable, however, all
that is required is to re-serve the writ.
Note: Where the writ of preliminary attachment had already been
implemented, the subsequent service of summons does not confer
a retroactive acquisition of jurisdiction over her person because
the law does not allow for retroactivity of a belated service (Torres
v. Satsatin, G.R. No. 166759, November 25, 2009)
Q: What are the cases in which a writ of preliminary
attachment may be enforced without necessity of service
of summons? (1993 Bar Question)
A: Service of summons upon the defendant is not necessary
before a writ of preliminary attachment may be enforced in
the following instances:
1. Where the summons could not be served personally or
by substituted service despite diligent efforts;
2. Where the defendant is a resident of the Philippines
temporarily absent therefrom;
3. Where the defendant is a non-resident; or
4. Where the action is one in rem or quasi in rem
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;
WHEN PROPERTY
ATTACHED IS CLAIMED BY THIRD PERSON
Q: How can the WRIT of attachment be enforced?
A: The sheriff enforcing the writ shall without delay and
with all reasonable diligence attach, to await judgment and
execution in the action, only so much of the property in the
Philippines of the party against whom the writ is issued, not
exempt from execution, as may be sufficient to satisfy the
applicants demand, unless the former makes a deposit
with the court from which the writ is issued, or gives a
counter-bond executed to the applicant, in an amount
equal to the bond fixed by the court in the order of
attachment or to the value of the property to be attached,
exclusive of costs.
No levy on attachment pursuant to the writ shall be
enforced unless it is preceded, or contemporaneously
accompanied, by service of summons, together with a copy
of the complaint, the application for attachment, the
applicants affidavit and bond, and the order and writ of
attachment, on the defendant within the Philippines (Sec.
5, Rule 57).
Q: How can a property be attached?
A: Real and personal property shall be attached by the
sheriff executing the writ in the following manner:
1. Real property, growing crops thereon, or interest therein
a. By filing with the Registry of Deeds a copy of the
order;
b. Together with a description of the property
attached;
c. A notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person are
attached; and
d. By leaving a copy of such order, description, and
notice with the occupant of the property, if any, or
with such other person or his agent if found within
the province (Sec. 7a, Rule 57).
Note: Where the property has been brought under the
operation of either the Land Registration Act or the
Property Registration Decree, the notice shall contain a
reference to the number of the certificate of title, the
volume and page in the registration book where the
certificate is registered, and the registered owner or
owners thereof (Ibid.).
2. Personal property capable of manual delivery
a. Sheriff taking into custody and safely keeping it after
issuing the corresponding receipt therefor.
3. Stocks, shares or interest in stocks or shares of any
corporation or company
a. By leaving with the president or managing agent
thereof, a copy of the writ and a notice stating that
the stock or interest of the party against whom the
attachment is issued, is attached in pursuance of
such writ;
4. Debts and credits, bank deposits, financial interests,
royalties, commission and other personal property not
capable of manual delivery
a. By leaving copy of the writ and notice of attachment
with person owing or having custody over the
property
5. Interest in the estate of a decedent By serving copy of
writ and notice of attachment upon the:
a. Executor or administrator of estate or other
personal representative of the decedent;
b. Clerk of Court where estate is being settled; and
c. Heir, devisee, or legatee
6. Property in custodia legis
a. A copy of writ shalll be filed with the proper court or
quasi-judicial agancy and notice of the attachment
serves upon the custodian of such property (Sec. 7,
Rule 57).
Q: When may salary be the subject of attachment?
A: It can only be attached at the end of the month or on the
payday provided by contract or law, as, prior thereto, the
same do not constitute money due to the debtor from his
employer. Furthermore, if the employer is the Government,
139 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
before payday, such funds are public funds and are exempt
from attachment or execution. (Garcia v. Castillo, 43 Phil
364; (Regalado, Remadial Lanw Compendium, Vol I, p. 702,
10th ed)
Q: How about wages due to a laborer? May it be a subject
of attachment?
A: As a general rule, no. Art. 1708 of the Civil Code states
that The laborer's wage shall not be subject to execution
or attachment, except for debts incurred for food, shelter,
clothing and medical attendance. (Gaa v. CA, G.R. No. L-
44169 December 3, 1985)
Note: Article 1708 used the word wage" and not "salary" in
relation to "laborer" when it declared what are to be exempted
from attachment and execution. The term wages as distinguished
from "salary", applies to the compensation for manual labor,
skilled or unskilled, paid at stated times, and measured by the day,
week, month, or season, while "salary" denotes a higher degree of
employment, or a superior grade of services, and implies a position
of office: by contrast, the term wages " indicates considerable pay
for a lower and less responsible character of employment, while
"salary" is suggestive of a larger and more important service (35
Am. Jur. 496).
Q: May government funds be subject of garnishment or
writ of execution?
A: It depends. When the government enters into
commercial business, it abandons its sovereign capacity and
is to be treated like any other corporation. Consequently,
its funds may be subject to a duly issued writ of
garnishment or writ of execution. But public funds of a
municipality are not subject to levy or execution if intended
for a public purpose and such funds cannot be disbursed
without a lawful appropriation or statutory authority as
required by law. Even when the immunity of state is
relaxed, the power of the court ends when judgment is
rendered and state is at liberty to determine whether or
not to appropriate funds for the satisfaction of the
judgment. (Malong vs. PNR, et. al., L-49930, Aug. 7, 1985;
PNB vs. CIR L032667, Jan. 31, 1978; Regalado, Remadial
Law Compendium, Vol I, p. 702, 10th ed)
Q: In a case, the property of an incompetent under
guardianship was in custodia legis. Can it be attached?
Explain. (1999 Bar Question)
A: Yes. In such case, a copy of the writ of attachment shall
be filed with the proper court and the notice of the
attachment shall be served upon the custodian of such
property.
Q: What is the principle of seniority of liens?
A: Where property attached by the judgment creditor had
previously been mortgaged the judgment creditors lien is
inferior to that of the mortgagee, which must first be
satisfied in the event of foreclosure. In reality, what was
attached by the judgment creditor was merely the
judgment debtors right or equity of redemption (Top Rate
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
International Services Inc. v. IAC, G.R. No. 67496, July 7,
1986).
Q: Which should prevail between a duly registered
attachment by levy and lis pendens?
A: Preference is given to a duly registered attachment over
a subsequent notice of lis pendens, even if the beneficiary
of the notice acquired the subject property before
registration of the attachment. Such notice does not
establish a lien or an encumbrance on the property
affected. As the name suggests, a notice of lis pendens with
respect to a disputed property is intended merely to inform
third persons that any of their transactions in connection
therewith -- if entered into subsequent to the notation --
would be subject to the result of the suit. (Du v. Stronghold
Insurance Co. Inc., G.R. No.156580, June 14, 2004).
Q: How about a prior sale of property?
A: A levy on execution duly registered takes preference
over a prior unregistered sale; and that even if the prior
sale is subsequently registered before the sale in execution
but after the levy was duly made, the validity of the
execution sale should be maintained, because it retroacts
to the date of the levy; otherwise, the preference created
by the levy would be meaningless and illusory (Defensor v.
Brillo, 98 Phil. 427).
Q: What are the remedies available if the property is being
claimed by third person?
A: File:
1. a terceria or third party claim;
2. independent action to recover his property; or
3. a motion for intervention available only before
judgment is rendered (Ong v. Tating, G.R. No. L-61042,
Apr. 15, 1987).
Q: Andrei's real property is being attached by the sheriff in
a civil action for damages against Bernard. Andrei claims
that he is not a party to the case; that his property is not
involved in said case; and that he is the sole registered
owner of said property. Under the Rules of Court, what
must Andrei do to prevent the sheriff from attaching his
property? (2000 Bar Question)
A: If the real property has been attached, the remedy is to
file a third-party claim. The third-party claimant should
make an affidavit of his title to the property attached
stating the grounds of his title thereto and serve such
affidavit upon the sheriff while the latter has possession of
the attached property and a copy thereof upon the
attaching party. The third-party claimant may also intervene
or file a separate action to vindicate his claim to the
property involved and secure the necessary reliefs such as
preliminary injunction which will not be considered as
interference with a court of coordinate jurisdiction.
Note: The sheriff shall not be bound to keep the property under
attachment, unless the attaching party or his agent, on demand of
the sheriff, shall file a bond approved by the court to indemnify
the third-party claimant in a sum not less than the value of the
140
 CIVIL PROCEDURE
property levied upon. In case of disagreement as to such value, the
same shall be decided by the court issuing the writ of attachment.
The sheriff shall not be liable for damages for the taking or keeping
of such property, to any such third-party claimant, if such bond
shall be filed.
No claim for damages for the taking or keeping of the property
may be enforced against the bond unless the action therefor is
filed within one hundred twenty (120) days from the date of the
filing of the bond.
The claimant or any third person is not prevented from vindicating
his claim to the property, or prevent the attaching party from
claiming damages against a third-party claimant who filed a
frivolous or plainly spurious claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of
the Philippines, or any officer duly representing it, the filing of such
bond shall not be required, and in case the sheriff is sued for
damages as a result of the attachment, he shall be represented by
the Solicitor General, and if held liable therefor, the actual
damages adjudged by the court shall be paid by the National
Treasurer out of the funds to be appropriated for the purpose.
(Sec. 14, Rule 57)
Q: May the property covered by a writ of preliminary
attachment be sold before entry of judgment?
A: GR: No. A writ of preliminary attachment is a provisional
remedy and its issuance does not have the effect of a final
judgment over the property attached.
XPN: An attached property may be sold after levy on
attachment and before entry of judgment whenever it shall
be made to appear to the court in which the action is
pending, upon hearing with notice to both parties, that the
attached property is perishable or that the interests of all
the parties to the action will be subserved by the sale pf the
atached property (Sec. 11, Rule 57; China Banking
Corporation vs. Asian Corporation and Development
Corporation, GR No. 158271, April 8, 2008; Riano p. 564).
DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND
Q: How may an ORDER of attachment be prevented from
being issued?
A:
1. By making a deposit or giving a bond in an amount
equal to that fixed in the order, which may be the
amount sufficient to satisfy the applicants demand or
the value of the property to be attached as stated by
the applicant, exclusive of costs (Sec. 2, Rule 57).
2. By raising the defense that the property covered is
exempt from execution (Sec. 2, Rule 57)
Q: What are the two ways of discharging the attachment
(after order of attachment has already been issued)?
A:
1. To file a counter-bond in accordance with Section
12 of Rule 57
2. To quash the attachment on the ground that it
was irregularly or improvidently issued, as
provided for in Section 13 of the same rule
(Torres et al. v. Satsatin, G.R. No. 166759,
November 25, 2009).
Note: A discharge of attachment must be made only after hearing.
An ex parte discharge or suspension of the attachment is a disfavor
to the orderly administration of justice and nullifies the underlying
role and purpose of preliminary attachment in preserving the rights
of parties pendente lite as an ancillary remedy (Peroxide Philippines
Corp., vs. CA, et. al GR No. 92813, July 21, 19991; Regalado p. 709).
Q: How can attachment be discharged if an an ORDER of
attachment has already been issued?
A: The party whose property has been ordered attached
may file a motion to quash the order by filing a motion with
the court in which the action is pending, before or after levy
or even after the release of the attached property, for an
order to set aside or discharge the attachment on the
ground that the same was improperly or irregularly issued
or enforced, or that the bond is insufficient. If the
attachment is excessive, the discharge shall be limited to
the excess.
If the motion be made on affidavits on the part of the
movant but not otherwise, the attaching party may oppose
the motion by counter-affidavits or other evidence in
addition to that on which the attachment was made. After
due notice and hearing, the court shall order the setting
aside or the corresponding discharge of the attachment if it
appears that it was improperly or irregularly issued or
enforced, or that the bond is insufficient, or that the
attachment is excessive, and the defect is not cured
forthwith (Sec. 13, Rule 57).
Q: How can an attachment ALREADY ENFORCED be
discharged?
A: The party whose property has been attached may file a
motion to discharge the attachment wholly or in part on
the security given. This motion shall be with notice and
hearing. After notice and hearing, the court shall discharge
the attachment if the movant makes a cash deposit or files
a counter-bond executed to the attaching party with the
clerk of court where the application is made in an amount
equal to that fixed by the court in the order of attachment,
exclusive of costs (Sec. 12, Rule 57, Riano, Civil Procedure: A
Restatement for the Bar, p. 557, 2009 ed.).
Note: Should the counter-bond for any reason be found to be or
become insufficient, and the party furnishing the same fail to file
an additional counter-bond, the attaching party may apply for a
new order of attachment.
Q: What are counterbonds?
A: Counterbonds are replacements of the property formerly
attached, and just as the latter, may be levied upon after
final judgment (Security Pacific Assurance Corporation v.
Tria- Infante, 468 SSCRA 526).
141 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: The mere posting of the counterbond does not automatically
discharge the writ of attachment. It is only after the hearing and
after judge has ordered the discharge of attachment that the same
is properly discharged. (Security Pacific Assurance Corporation v.
Tria- Infante, 468 SSCRA 526; Riano p. 558)
Q: What happens if the judgment was rendered in favor of
the party against whom attachment was issued?
A:
1. The order of attachment will be discharged and all the
proceeds of sales and money collected or received by the
sheriff, under the order of attachment, and all property
attached remaining in any such officers hands, shall be
delivered to the party against whom attachment was issued
(Sec. 19, Rule 57).
2. The whole sum deposited must be refunded to him or his
assignee if the party against whom attachment had been
issued has deposited money instead of giving counter-bond
(Sec. 18, Rule 57).
Q: Roy obtained a writ of preliminary attachment upon a
bond of P1 million. The writ was levied on Ronald's
property, but it was discharged upon the posting by
Ronald of a counterbond in the same amount of P1
million. After trial, the court rendered judgment finding
that Roy had no cause of action against Ronald and that
he had sued out the writ of attachment maliciously.
Accordingly, the court dismissed the complaint and
ordered Roy and its surety to pay jointly to Ronald P1.5
million as actual damages, P0.5 million as moral damages
and P0.5 million as exemplary damages. Evaluate the
soundness of the judgment from the point of view of
procedure (2002 Bar Question)
A: The judgment against the surety is not sound if due
notice was not given to him of the application for damages.
Moreover, the judgment against the surety cannot exceed
the amount of its counterbond of P1 million.
Q: What is the duty of the surety or surties on
counterbond, when the judgment becomes executory?
A: When the judgment has become executory, the surety or
sureties on any counter-bond given to secure the payment
of the judgment shall become charged on such counter-
bond and bound to pay the judgment obligee upon demand
the amount due under the judgment, which amount may
be recovered from such surety or sureties after notice and
summary hearing in the same action (Sec. 17, Rule 57).
Q: After his properties were attached, defendant Porfirio
filed a sufficient counterbond. The trial court discharged
the attachment. Nonetheless, Porfirio suffered substantial
prejudice due to the unwarranted attachment. In the end,
the trial court rendered a judgment in Porfirio's favor by
ordering the plaintiff to pay damages because the latter
was not entitled to the attachment. Porfirio moved to
charge the plaintiff's attachment bond. The plaintiff and
his sureties opposed the motion, claiming that the filing of
the counterbond had relieved the plaintiff's attachment
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
bond from all liability for damages. Should Porifios
motion be granted?
A: Yes, Porfirios motion to charge plaintiffs attachment
bond is proper and can be granted. It is not correct to
contend that Porfirios filing of a counterbond constitutes a
waiver of his right to proceed against the attachment bond
for the damages he suffered from the unwarranted
attachment. It is a condition inter alia of the applicants
attachment bond that he will pay all the costs which may
be adjudged to the adverse party and all damages which
the latter may sustain by reason of the attachment, if the
court shall finally adjudge that the applicant was not
entitled thereto (DM Wenceslao and Associates, Inc. v.
Readycon Trading and Construction Corp., G.R. No. 156104,
June 29, 2004).
Q: May damages be awarded for wrongful attachment?
A: Yes. Damages may be awarded on account of improper,
irregular or excessive attachment. The application for
damages must be filed (a) before the trial, or (b) before
appeal is perfected, or (c) before the judgment becomes
executory. There must be notice to the attaching party and
his surety of sureties (Sec. 20 Rule 57, Riano p. 558).
Where there is wrongful attachment, the attachment
defendant may recover actual damages even without proof
that the attachment plaintiff acted in bad faith in obtaining
the attachment. However, if it is alleged and established
that the attachment was not merely wrongful but also
malicious, the attachment defendant may recover moral
damages and exemplary damages as well (Spouses Yu vs.
Ngo Yet Te, GR No. 155868, Feb. 6, 2007).
Note: Damages may be claimed even by the losing party where the
attachment caused him damage where the attachment was
improper, irregular or excessive. An improper, irregular or
excessive attachment is not validated by the fact that the attaching
party prevailed in the main action. (1999 Bar Question)
SATISFACTION OF JUDGMENT OUT OF PROPERTY
ATTACHED
Q: How can the judgment be satisfied out of the attached
property?
A: If judgment is in favor the attaching party and execution
has issued thereon, the sheriff may cause the judgment to
be satisfied out of the property attached, if it be sufficient
for that purpose, in the following manners:
1. Payment to judgment creditor of all sales of perishable
or other property
2. If any balance remains, selling property as may be
necessary to satisfy the judgment
3. Collecting from all persons having possession of credits
belonging to the judgment debtor and paying the
proceeds to judgment creditor (Sec. 15, Rule 57).
4. Ordinary execution (Sec. 16, Rule 57)
Note: If it remains unsatisfied, recovery may be had on the
counterbond upon demand and notice and hearing to surety (Sec.
17, Rule 57).
142
 CIVIL PROCEDURE

distinct from, and should not be confused with the provisional

Q: What is the rule in cases where the property attached is remedy of preliminary injunction, the sole object of which is to
not sufficient to satisy the judgment or where there is preserve the status quo until the merits can be heard (Urbanes v.
CA, G.R. No. 117964, March 28, 2001).
excess after applying the proceeds thereof?
Q: What is the purpose of preliminary injunction?
A: If after realizing upon all the property attached, including
the proceeds of any debts or credits collected, and applying
A: To preserve the status quo or to prevent future wrongs
the proceeds to the satisfaction of the judgment less the
in order to preserve and protect certain interests or rights
expenses of proceedings upon the judgment, any balance
during the pendency of the action (Cortez-Estrada v. Heirs
shall remain due, the sheriff must proceed to collect such
of Domingo, 451 SCRA 275, Feb. 14, 2005; Riano p. 568).
balance as upon ordinary execution.
Note: Status quo is the last actual, peaceable and uncontested
Whenever the judgment shall have been paid, the sheriff, situation which precedes a controversy. It is the situation existing
upon reasonable demand, must return to the judgment at the time of the filing of the case (Riano, Civil Procedure: A
obligor the attached property remaining in his hands, and Restatement for the Bar, p. 568, 2009 ed.).
any proceeds of the sale of the property attached not
applied to the judgment (Sec. 16, Rule 57). Q: What is the quantum of evidence required in a
preliminary injunction?
Q: What is the procedure on the satisfaction of judgment
when the party against whom attachment had been A: Mere prima facie evidence is needed to establish the
issued deposited money instead of giving counter-bond? applicants rights or interests in the subject matter of the
main action because the applicant is required to show only
A: Where the party against whom attachment had been that he has an ostensible right to the final relief prayed for
issued has deposited money instead of giving counter- in his complaint (Republic v. Evangelista, 466 SCRA 544).
bond, it shall be applied under the direction of the court to
the satisfaction of any judgment rendered in favor of the Note: Findings of the trial court granting or denying a petition for a
attaching party, and after satisfying the judgment, the writ of preliminary injunction based on the evidence on record are
balance shall be refunded to the depositor or his assignee merely provisional until after the trial on the merits of the case
(Sec. 18, Rule 57). shall have been concluded (Sps. Nisce v. Equitable-PCI bank, G.R.
No. 167434, Feb. 19, 2007).
PRELIMINARY INJUNCTION (RULE 58)
Q: Define a temporary restraining order (1988, 2006 Bar
Question)
DEFINITIONS AND DIFFERENCES: PRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER;
A: It is an interlocutory order issued as a restraint to the
STATUS QUO ANTE ORDER
defendant to preserve the status quo on the ground of
irreparable injury and is granted to a party until the hearing
Q: Define Preliminary Injunction
of the application for preliminary injunction.
A: It is an order granted at any stage of an action or
Note: The grant, denial or lifting of restraining order does not in
proceeding prior to the judgment or final order, requiring a any way preempt the courts power to decide the issue in the main
party or a court, agency or a person to refrain from a case. (DFA and BSP v. Falcon and BCA Intl Corp., G.R. No. 176657,
particular act or acts (Preliminary prohibitory injunction) or Sept. 1, 2010).
to require the performance of a particular act or acts
(Preliminary mandatory injunction) (Sec. 1, Rule 58). Q: Distinguish preliminary injunction from TRO (1988 Bar
Question)
Q: What is the nature of preliminary injunction?
A:
A: It is an ancillary or preventive remedy where a court Preliminary Injunction Temporary Restraining Order
requires a person, a party or even a court or tribunal either Effective during the Duration (non-extendible):
to refrain from (prohibitory) or to perform (mandatory) pendency of the action (Sec. 5, Rule 58)
particular acts during the pendency of an action. It is unless earlier dissolved 1. If issued by RTC/MTC
merely a temporary remedy subject to the final disposition 20days from notice to
of principal action (Dungog vs. Court of Appeals, 408 SCRA Note: The trial court, the person restrained
267; Riano, Civil Procedure: A Restatement for the Bar, p. Court of Appeals, the 2. If issued by CA 60 days
564, 2009 ed.). Sandiganbyan or the Court of from notice
Tax Appeals that issued a
3. If issued by SC until
Note: The action for injunction is distinct from the ancillary remedy writ of preliminary injunction
against a lower court, board, lifted
of preliminary injunction which cannot exist except only as part or
an incident of an independent action or proceeding. As a matter of officer, or quasi-judicial
agency shall decide the main Note: Prohibition against the
course, in an action for injunction, the auxiliary remedy of
case or petition within six (6) renewal applies only if the same is
preliminary injunction, whether prohibitory or mandatory, may
months from the issuance of sought under and by reason of the
issue. Under the present state of the law, the main action of
the writ. (Sec. 5, Rule 58 as same ground for which it was
injunction seeks a judgment embodying a final injunction which is

143 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

amended by A.M. No. 07-7- originally issued (Regalado, 2. Applicant must establish that he has a right to relief, a
12-SC). Remedial Law Compendium, Vol. I, right in esse or a right to be protected and the act
p. 725, 2005 ed.) against which the injunction is directed is violative of
Restrains or requires the Maintain status quo ante such right;
performance of particular 3. Applicant must establish that there is a need to
acts. restrain the commission or continuance of the acts
Notice and hearing GR: Notice and hearing complained of and if not enjoined would work injustice
always required (Sec. 5, required to the applicant;
Rule 58) XPN: To prevent 4. Applicant must post a bond, unless exempted by the
urgent/irreparable injury, TRO court. This bond is executed in favor of the person
may be issued by an enjoined to answer for all damages which the latter
Executive Judge or Presiding may sustain by reason of injunction or restraining
Judge for 72 hours and a order if the court should finally decide that the
summary hearing be applicant was not entitled to the writ or order;
subsequently conducted 5. Service of summons;
within such period XPNs:
Can be issued to compel Cannot be issued to compel a. Summons could not be served personally or by
the performance of an act the performance of an act substituted service;
b. Adverse party is a resident but is temporarily
Q: Which court may grant preliminary injunction? absent from the Philippines;
c. Adverse party is a non-resident;
A: A preliminary injunction may be granted by the court 6. The plaintiff praying for the writ must further establish
where the action or proceeding is pending. If the action or that he has a present and unmistakable right to be
proceeding is pending in the Court of Appeals or in the protected and there is a special and paramount
Supreme Court, it may be issued by said court or any necessity for the writ to prevent serious damage
member thereof (Sec.2, Rule 58). (Riano, Civil Procedure: A Restatement for the Bar, p.
571-572, 2009 ed.).
Q: What is a status quo order? (2006 Bar Question)
Q: May the RTC issue an injunction without the posting of
A: It is resorted to when the projected proceedings in the a bond? (2006 Bar Question).
case made the conservation of the status quo desirable or
essential but the affected party neither sought such relief A: Yes, if the injunction issued is a final injunction.
nor did the allegations in his pleading sufficiently make out Generally, however, a preliminary injunction may not be
a case for a TRO. issued without the posting of a bond, unless exempted by
the trial court or otherwise provided for by law.
Q: Distinguish a temporary restraining order from a status
quo order. KINDS OF INJUNCTION

A: Q: Distinguish Preliminary Injunction from Final Injunction

TRO Status Quo Order
Summary hearing Issued motu proprio on A:
equitable Preliminary Injunction Final Injunction (Sec. 9,
considerations. (Sec. 1, Rule 58) Rule 58)
Prevents the doing of More in the nature of a Is one issued in the
an act cease and desist order An order granted at any judgment in the case
since it neither directs stage of the action prior permanently restraining
the doing or undoing of to the judgment or final the defendant or
acts order therein. making the preliminary
Requires the posting of Does not require the injunction permanent.
a bond, unless posting of a bond
exempted by court Q: Distinguish preliminary injunction from main action for
(Garcia v. Mojica, 314 SCRA 207) injunction (2006 Bar Question)

REQUISITES A:
Preliminary Injunction Main Action for
Q: What are the requisites for the grant of a writ of (Ancillary Remedy) Injunction
preliminary injunction or temporary restraining order? Provisional remedy; Independent/Primary
It is not a cause of action Action
A: itself but merely an
1. Verified application stating the grounds for its issuance adjunct to a main suit
(Sec. 4, Rule 58); Seeks to preserve the Perpetually
status quo until the restraining or

UNIVERSITY OF SANTO TOMAS 144

2013 GOLDEN NOTES
 CIVIL PROCEDURE
merits can be heard commanding the
performance of an
act after trial
Q: What are the kinds of preliminary injunction and their
distinctions?
A:
Preliminary Prohibitory Preliminary Mandatory
Injunction Injunction
Requires a person to
Requires a person to
refrain from a particular
perform a particular act
act
The act has already
been been perfomed
and this act has violated
The act has not yet
the rights of another
been perfomed
(Riano, Civil Procedeure:
A Restatement for the
Bar, p. 569, 2009 ed.).
Q: Distinguish Prohibitory injunction from Prohibition
A:
Prohibitory Injunction Prohibition
Provisional remedy, Special Civil Action, Rule
Rule 58 65
Directed against a party Directed against a
litigant in the action court, tribunal or
person exercising
judicial powers
It does not involve the Prohibition may be on
jurisdiction of the court the ground that the
court against whom the
writ is sought acted
without or in excess of
jurisdiction (Regalado,
Remedial Law
th
Compendium, Vol I, 10
ed.).
Q: Distinguish Mandatory injunction from mandamus
A:
Mandatory Injunction Mandamus
Provisional remedy, Special Civil Action, Rule
Rule 58 65
Directed to a party Seeking a judgment
litigant to perform an commanding a tribunal,
act to restore the last corporation, board,
peaceable uncontested officer or person to
status preceding the perform a ministerial
controversy. duty required to be
performed by law (Sec.
3, Rule 65; Riano, Civil
Procedure: A
Restatement for the
Bar, p. 570, 2009 ed.).
Q: Does injunction lie against acts already consummated?
145
A: GR: No, because injunction contemplates acts being
committed or about to be committed (Romulo v. Yiguez,
G.R. No. 71908, Feb. 4, 1986).
XPN: If such acts complained of are continuing in nature
and were in derogation of plaintiffs rights at the outset,
preliminary mandatory injunction may be availed of to
restore the parties to the status quo (Regalado, Vol. I, pp.
717-718, 2005 ed.).
Q: What are the requisites of mandatory injunction?
A:
1. Material and substantial invasion of right;
2. Clear and unmistakable right of complainant;
3. Urgent and paramount necessity for the writ to
prevent serious damages (Bautista v. Barcelona, G.R.
No. 11885, Mar. 29, 1957)
4. The effect would not be to create a new relation
between the parties (Alvaro v. Zapata, G.R. No. L-
56025, Nov. 25, 1982; Regalado p. 720-721)
Q: What are the instances where mandatory injunction
does not lie?
A:
1. To compel cohabitation (Arroyo v. Vasquez, G.R. No. L-
17014, Aug. 11, 1921);
2. Cancellation of attachment (Levy Hermanos v. Lacson,
G.R. No. L-47506, Dec. 14, 1940);
3. Release imported goods pending hearing before the
Commissioner of Customs (Commissioner of Customs
v. Cloribel, G.R. No. L-19796, Jan. 31, 1967); and
4. To take property out of the possession or control of
one party and place it into that of another whose title
has not clearly been established (Pio v. Marcos, G.R.
No. L-27980, Apr. 30, 1974).
WHEN WRIT MAY BE ISSUED
Q: When may a writ for preliminary injunction be issued?
A: A preliminary injunction or temporary restraining order
may be granted only when:
(a) The application in the action or proceeding is verified,
and shows facts entitling the applicant to the relief
demanded; and
(b) Unless exempted by the court the applicant files with
the court where the action or proceeding is pending, a
bond executed to the party or person enjoined, in an
amount to be fixed by the court (Sec. 4, Rule 58).
(c) When an application for a writ of preliminary injunction
or a temporary restraining order is included in a complaint
or any initiatory pleading, the case, if filed in a multiple-sala
court, shall be raffled only after notice to and in the
presence of the adverse party or the person to be
enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied by service of summons,
together with a copy of the complaint or initiatory pleading
and the applicants affidavit and bond, upon the adverse
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
party in the Philippines.
However, where the summons could not be served
personally or by substituted service despite diligent efforts,
or the adverse party is a resident of the Philippines
temporarily absent therefrom or is a nonresident thereof,
the requirement of prior or contemporaneous service of
summons shall not apply.
(d) The application for a temporary restraining order shall
thereafter be acted upon only after all parties are heard in
a summary hearing which shall be conducted within
twenty-four (24) hours after the sheriffs return of service
and/or the records are received by the branch selected by
raffle and to which the records shall be transmitted
immediately.
Q: How does the rule on contemporaneous service of
summons apply in Preliminary Injunction?
A: It is the same as the rule on contemporaneous service of
summons in attachment. Thus:
GR: The enforcement of the writ of preliminary injunction
must be preceded by or simultaneously accompanied by
service of summons, copy of complaint, application and
affidavits for the preliminary injunction and the bond upon
the adverse party.
XPN: Where the summons could not be served personally
or by substituted service despite diligent efforts, or the
adverse party is a resident of the Philippines temporarily
absent therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous service of
summon shall not apply. (par. 2 4(c), Rule 58)
Q: S.P. Corporation filed a complaint for Recovery of
Property with application for temporary restraining order
and/or preliminary injunction against the heirs of Mr. B.
The case was then raffled to Branch 253 of RTC of Las
Pias. Mr. G, one of the heirs of Mr. B, filed an Omnibus
Motion praying for another raffle of the case be held
because the they were not able to receive any notice of
raffle to which S.P. Corporation didn't oppose. S.P.
Corporation then filed a Motion for Service of Summons
by Publication on all the heirs of Mr. B except Mr. G
because the addresses could not be ascertained despite
diligent inquiry. On the day of the raffle date requested by
Mr. G both counsels where present however, the counsel
of Mr. G opposed the said raffle for the reason that the
other defendants where not duly notified.
When the case reached the Supreme Court, Mr. G
contends that under 4(c), Rule 58, a case may be raffled
only after notice to and in the presence of the adverse
party. These requisites according to him are mandatory.
Furthermore, he maintains that the latter part of the rule,
which allows service of summons to be dispensed with in
case the adverse party cannot be located despite diligent
efforts, should not be isolated from other related
provisions. Decide the case
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: Mr. G's argument is incorrect. Under par. 2 4 Rule 58,
the required prior or contemporaneous service of summons
may be dispensed with in the following instances: (a) when
the summons cannot be served personally or by substituted
service despite diligent efforts, (b) when the adverse party
is a resident of the Philippines temporarily absent
therefrom, or (c) when such party is nonresident. In such
event, the notice of raffle and the presence of the adverse
party must also be dispensed with. The requirement of
notice of the raffle to the party whose whereabouts are
unknown does not apply because the case will have to be
raffled first before the court can act on the motion for leave
to serve summons by application (Gonzalo R. Gonzales vs.
State Properties Corporation G.R. No. 140765 January 25,
2001).
Q: May a writ of preliminary injunction be issued ex-
parte? (2001 Bar Question)
A: No. No preliminary injunction shall be granted without
hearing and prior notice to the party or person sought to be
enjoined. The reason is that a preliminary injunction may
cause grave and irreparable injury to the party enjoined.
Note: If it shall appear from facts shown by affidavits or by the
verified application that great or irreparable injury would result to
the applicant before the matter can be heard on notice, the court
may issue ex parte a temporary restraining order
If the matter is of extreme urgency and the applicant will suffer
grave injustice and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single-sala court may
issue ex parte a temporary restraining order effective for only
seventy-two (72) hours from issuance but he shall immediately
comply with the provisions as to service of summons and the
documents to be served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge before whom the case
is pending shall conduct a summary hearing to determine whether
the temporary restraining order shall be extended until the
application for preliminary injunction can be heard. In no case
shall the total period of effectivity of the temporary restraining
order exceed twenty (20) days, including the original seventy-two
hours provided herein.
In the event that the application for preliminary injunction is
denied or not resolved within the said period, the temporary
restraining order is deemed automatically vacated.
Q: May a trial court issue a writ of preliminary injunction
based solely on the applicants evidence.
A: No. The trial court commits grave abuse of discretion
when it issues such writ prior to the termination of the
presentation of evidence by the party against whom the
injunction shall be issued. The order to show cause why
the injunction should not be granted as stated in Sec. 5,
Rule 58 of the Rules of Court is precisely directed to such
party, not on the injunctions applicant (Lee v. CA, G.R. No.
147191, July 27, 2006).
Q: What are the instances where a writ of preliminary
injunction may be issued?
A:
146
 CIVIL PROCEDURE
1. In petitions for relief from judgment entered through
FAME;
2. In petitions for certiorari, prohibition, and mandamus;
3. In actions for annulment of judgments obtained
through fraud;
4. In actions for annulment of judgment which are not
patent nullity (i.e want of jurisdiction, lack of due
process of law) (BancoEspanol v. Palanca, 37 Phil.
921);
5. To restrain continued breach of valid negative
obligation;
6. To enjoin repeated trespass on land;
7. To restrain city from proceeding with abatement of
nuisance per accidens before it has been judicially
declared as such;
8. To restrain voting of disputed shares of stocks;
9. To restrain sheriff from selling property on execution
not belonging to judgment debtor;
Q: May a writ of injunction be issued to enjoin a criminal
prosecution?
A: No, because public interest requires that criminal acts be
immediately investigated and prosecuted for the protection
of society.
XPNS:
a. To afford adequate protection to the constitutional rights
of the accused (Hernandez v. Albano, et al., L-19272,
January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice
or to avoid oppression or multiplicity of actions (Dimayuga,
et al. v. Fernandez, 43 Phil. 304; Hernandez v. Albano,
supra; Fortun v. Labang, et al., L-38383, May 27, 1981, 104
SCRA 607);
c. When there is a pre-judicial question which is subjudice
(De Leon v. Mabanag, 70 Phil. 202);
d. When the acts of the officer are without or in excess of
authority (Planas v. Gil, 67 Phil. 62);
e. Where the prosecution is under an invalid law, ordinance
or regulation (Young v. Rafferty, 33 Phil. 556; Yu Cong Eng
v. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang v.
People and Avendia, 109 Phil. 1140);
g. Where the court has no jurisdiction over the offense
(Lopez v. City Judge, L-25795, October 29, 1966, 18 SCRA
616);
h. Where there is a case of persecution rather than
prosecution (Rustia v. Ocampo, CA-G.R. No. 4760, March
25, 1960);
i. Where the charges are manifestly false and motivated by
the lust for vengeance (Recto v. Castelo, 18 L.J. [1953], cited
in Raoa v. Alvendia, CA-G.R. No. 30720-R, October 8,
147
1962; Cf. Guingona, et al. v. City Fiscal, L-60033, April 4,
1984, 128 SCRA 577); x x x
j. When there is clearly no prima facie case against the
accused and a motion to quash on that ground has been
denied (Salonga v. Pao, et al., L-59524, February 18, 1985,
134 SCRA 438)[; and]
k. Preliminary injunction has been issued by the Supreme
Court to prevent the threatened unlawful arrest of
petitioners (Rodriguez v. Castelo, L-6374, August 1, 1953,)
(People of the Philippines v. Grey, G.R. No. 180109, July 26,
2010).
Q: Is a second application for preliminary injunction
allowed?
A: No. A second application for injunction, which rests in
the sound discretion of the court, will ordinarily be denied
unless it is based on facts unknown at the time of the first
application. (Reyes v. Court of Appeals and Sun Life
Insurance Office, Ltd., G.R. No. 87647, May 21, 1990).
Q: In what actions will a preliminary injunction not lie?
A:
1. Against Department of Public Works and Highways to
stop government infrastructure projects (Secs. 3 & 4,
RA 8975; PD 1818)
XPNs:
a. Extreme urgency
b. Matter involves a constitutional issue
c. Grave injustice and irreparable injury will arise
d. Supreme Court may issue the writ of preliminary
injunction
Note: Only the SC may issue injunction against the
government, officials or any person or entity whether public
or private acting under the government direction, to restrain,
prohibit, or compel acts pursuant to the implementation and
completion of infrastructure projects. (Sec 3, RA 8975)
2. Act/s perpetrated outside the inferior courts
territorial jurisdiction
3. Against judgments of coordinate courts and quasi
judicial bodies of equal rank
4. Issuance will effectively dispose of the main case
without trial and/or due process (Boncodin v. Natl
Power Corporation Employees Consolidated Union,
G.R. No. 162716, September 27, 2006)
5. Labor disputes
6. In issuance of licenses, concessions as to disposition,
exploitation, utilization, exploration and/or
development of natural resources (Sec. 1, PD605)
7. Implementation of Comprehensive Agrarian Reform
Program, collection of taxes, criminal prosecutions
8. Mandatory foreclosure of a mortgage by a
government financial institution (Sec. 2, P.D. 385)
XPN: After hearing, it is established that 20% of
outstanding arrearages is paid after the filing of
the foreclosure proceedings
9. Act/s sought to be enjoined already consummated
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
XPN:Acts which are continuing in nature and
were in derogation of plaintiffs rights at the
outset, preliminary mandatory injunction may be
availed of to restore the parties to the status quo
(Dayrit vs. De Los Santos, 18 Phil 275).
10. To transfer the property in litigation from the
possession of one party to another where the legal
title is in dispute and the party having possession
asserts ownership thereto (Almeida v. CA and Sy, G.R.
No. 159124, January 17, 2005)
XPN: Forcible entry and unlawful detainer cases
preliminary mandatory injunction may be issued
(Sec. 15, Rule 70)
10. Generally, injunction will not be granted to take
property out of the possession of one party and place
it in another whose title not clearly established;
11. When action for damages would adequately
compensate injuries caused (Golding v. Balatbat, 36
Phil.941);
12. To prevent directors from discharging their offices and
restoring former directors;
13. To restrain criminal prosecution where the
Ombudsman had authorized the Special prosecutor to
conduct a preliminary investigation or to file an
injunction.
14. Generally, injunction does not lie to restrain the
enforcement of a law alleged to be unconstitutional
except if it will result in injury to rights in private
property ( J.M Tuazon vs. Co. et. al., G.R. No. L-18128
December 26, 1961)
15. GR: Restrain collection of taxes (Valley Trading v. CFI
of Isabela, G.R. No. L-49529, Mar. 31, 1989)
XPN: There are special circumstances that bear
the existence of irreparable injury (Churchill &
Tait v. Ratterty, G.R. No. L-10572, Dec. 21, 1915)
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
Q: What are the grounds for the issuance of preliminary
injunction?
A: A preliminary injunction may be granted when it is
established:
(a) That the applicant is entitled to the relief demanded,
and the whole or part of such relief consists in
restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of
an act or acts either for a limited period or perpetually;
(b) That the commission, continuance or non-performance
of the act or acts complained of during the litigation
would probably work injustice to the applicant; or
(c) That a party, court, agency or a person is doing,
threatening, or is attempting to do, or is procuring or
suffering to be done some act or acts probably in
violation of the rights of the applicant respecting the
subject of the action or proceeding, and tending to
DURATION OF TRO
Q: Discuss the duration of TRO issued by the courts (1988 Bar Question)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
render the judgment ineffectual (Sec. 3, Rule 58).
Prescinding from the provisions mentioned above, we have
consistently held that the requisites of preliminary
injunction whether mandatory or prohibitory are the
following:
(1) the applicant must have a clear and unmistakable
right, that is a right in esse;
(2) there is a material and substantial invasion of such
right;
(3) there is an urgent need for the writ to prevent
irreparable injury to the applicant; and
(4) no other ordinary, speedy, and adequate remedy
exists to prevent the infliction of irreparable injury
(Marquez v. Sanchez, G.R. No. 141849, February 13,
2007).
GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION
OF INJUNCTION OR
RESTRAINING ORDER
Q: How can a writ of preliminary injunction or restraining
order be dissolved?
A: The party enjoined may file a motion to dissolve the
injunction or TRO with notice and hearing of the motion
upon showing by affidavits that the person enjoined would
suffer irreparable damage while the applicant can be fully
compensated for such damages as he may suffer. The
movant must also file a bond conditioned upon the
payment of all damages which the applicant may suffer by
the dissolution of the injunction or restraining order (Sec. 6,
Rule 58).
Q: What are the grounds for objections or dissolution of
injunction or restraining order?
A:
1. Insufficiency of application for injunction or restraining
order;
2. Issuance or continuance of injunction or restraining
order causes irreparable injury while applicant may be
fully compensated for damages by bond;
3. Extent of injunction or restraining order is too great
Effect: modification (Sec 6, Rule 58);
4. Insufficiency or defective bond (Sec. 7, Rule 58).
Note: Filing of verified motion and bond as well as hearing is
required.
148
 CIVIL PROCEDURE
A:
When available Executive Judge / Presiding Judge CA or any of its SC or any of its
Members Members
If great or irreparable If the matter is of extreme urgency and the Effective for 60 Effective until
injury would result to the applicant will suffer grave injustice and days from further orders
applicant before the irreparable injury: service on the (Sec. 5)
matter can be heard on party sought to
notice, the court may 1. TRO effective only for 72 hours from be enjoined
issue ex parte a TRO, issuance.
effective only for 20 days 2. Its effectivity may be extended after
from service on the party conducting a summary hearing within
sought to be enjoined the 72 hour period until the application
for preliminary injunction can be heard
(2006 Bar Question)

Note: After conducting a summary hearing within the 72 hour period until the application for preliminary injunction can be heard, an extension
of the 72-hour TRO may be asked. The total period of effectivity of the TRO shall not exceed 20 days including the 72 hours. While the efficacy of
the TRO is ordinarily non-extendible, and the trial courts have no discretion to extend it considering the mandatory tenor of Rule 58, there is no
reason to prevent a court from extending the 20-day period when it is the parties themselves who ask for such extension or for the maintenance
of the status quo. (Federation of Land Reform Farmers of the Philippines v. CA, 246 SCRA 175, 1995)

Q: An application for a writ of preliminary injunction with
a prayer for a temporary restraining order is included in a
complaint and filed in a multi-sala RTC consisting of
Branches 1, 2, 3, and 4. Being urgent in nature, the
Executive Judge, who was sitting in Branch 1, upon the
filing of the application aforesaid, immediately raffled the
case in the presence of the judges of Branches 2, 3 and 4.
The case was raffled to Branch 4 and the judge thereof
immediately issued a temporary restraining order. Is the
temporary restraining order valid? (2001 Bar Question)
A: No. It is only the Executive Judge who can issue
immediately a TRO effective only for 72 hours from
issuance. No other judge has the right or power to issue a
TRO ex parte. The judge to whom the case is assigned will
then conduct a summary hearing to determine whether the
TRO shall be extended, but in no case beyond 20 days
including the original 72-hour period.
or any person or entity, whether public or private acting
under the government direction, to restrain, prohibit or
compel the following acts:
(a) Acquisition, clearance and development of the
right-of-way and/or site or location of any national
government project;
(b) Bidding or awarding of contract/ project of the
national government as defined under Section 2
hereof;
(c) Commencement prosecution, execution,
implementation, operation of any such contract or
project;
(d) Termination or rescission of any such
contract/project; and
(e) The undertaking or authorization of any other
lawful activity necessary for such contract/project
(Sec. 3, RA 8975).
Note: The law further provides that any TRO or preliminary
injunction issued in violation of Sec. 3 is void and of no force and
effect. (Sec. 4, ibid.)

XPNs: The prohibition does not apply when:

(a) Issued by the Supreme Court;
(b) The matter is of extreme urgency;
(c) Involves a constitutional issue; and
(d) Grave injustice and irreparable injury will arise
unless a temporary restraining order is issued. In
IN RELATION TO R.A. 8975, BAN ON ISSUANCE OF TRO OR this case, the applicant shall file a bond in an
WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT amount to fixed by court and which shall accrue
INFRASTRUCTURE PROJECTS in favor of the government if the court should
finally decide that the applicant was not entitled
Q: Is preliminary injunction or TRO available in cases to the relief sought (Sec. 3, ibid.).
involving government infrastructure projects?
RECEIVERSHIP
A: GR: No court shall issue any temporary restraining order,
preliminary injunction or preliminary mandatory injunction Q: What is Receivership?
against the government, or any of its subdivisions, officials
149 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Receivership is a provisional remedy wherein the court
appoints a representative to preserve, administer, dispose
of and prevent the loss or dissipation of the real or personal
property during the pendency of an action. It may be the
principal action itself or a mere provisional remedy; it can
be availed of even after the judgment has become final and
executory as it may be applied for to aid execution or carry
judgment into effect.
Note: Receivership, like injunction may also be a principal action as
the one referred to in Sec. 4 of Rule 39. Rule 59 is a receivership
that is ancillary to a main action (Riano, Civil Procedure: A
Restatement for the Bar, p. 591, 2009 ed.)
Q: What is the purpose of Receivership?
A: To protect and preserve the rights of the parties during
the pendency of the main action, during the pendency of an
appeal or as an aid in the execution of a judgment when the
writ of executing has been returned unsatisfied (Sec. 1, Rule
59).
Note: The receivership under rule 59 is directed to the property
which is the subject of the action and does not refer to the
receivership authorized under the banking laws and other rules or
laws. Rule 59 presupposes that there is an action and that the
property subject of the action requires its preservation. (Riano,
Civil Procedure: A Restatement for the Bar, p. 590, 2009 ed)
Q: What is the underlying reason for the appointment of a
receiver?
A: It is necessary since the court is not provided with
adequate machinery and resources for dealing with the
situation presented by the appointment of a receiver and
all the details connected therewith (Velasco v. Gochuico,
G.R. No.L-10173, Feb.1, 1916).
Q: When is the time to file a receivership?
A: At any stage of the proceedings even after finality of
judgment.
Q: Who is a receiver?
A: He is a person appointed by the court in behalf of all the
parties to an action for the purpose of preserving the
property involved in the suit and to protect the rights of all
the parties under the direction of the court (Mallari v.
CA,G.R. No. L-33127, July 15, 1981). A receiver is not a
representative party under Rule 3 but a real party in
interest, but he cannot file a case without the consent of
the receivership court.
Q: Can a party to an action be appointed as a receiver?
A: No, unless consented to by all parties
Q: Which court may appoint a receiver?
A:
1. Court where action is pending
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
2. Court of Appeals or Supreme Court or a member
thereof (Sec. 1, Rule 59)
Note: During the pendency of an appeal, the appellate court may
allow an application for the appointment of a receiver to be filed in
and decided by the court of origin and the receiver appointed to be
subject to the control of said (latter) court (Sec.1, Rule 59).
Q: What is the effect of a contract executed by a receiver
without court approval?
A: Such contract will constitute his personal undertakings
and obligations. (Pacific Merchandising Corp. v. Consolacion
Insurance & Surety Co., G.R. No. L-30204, Oct. 29, 1976)
Q: What is the liability of a person who refuses or neglects
to deliver property to the receiver?
A: A person who refuses or neglects, upon reasonable
demand, to deliver to the receiver all the property, money,
books, deeds, notes, bills, documents and papers within his
power or control, subject of or involved in the action or
proceeding, or in case of disagreement, as determined and
ordered by the court, may be punished for contempt and
shall be liable to the receiver for the money or the value of
the property and other things so refused or neglected to be
surrendered, together with all damages that may have
been sustained by the party or parties entitled thereto as a
consequence of such refusal or neglect. (Sec. 7, Rule 59)
CASES WHEN RECEIVER MAY BE APPOINTED
Q: What are the grounds for appointment of a receiver?
A:
1. The property or fund is in danger of being lost,
removed or materially injured;
2. The mortgaged property is in danger of being wasted
or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgaged debt;
3. There is stipulation in the contract of mortgage;
4. After judgment, to preserve the property during the
pendency of an appeal, or to dispose according to
judgment;
5. To aid execution when execution has been returned
unsatisfied;
6. Judgment obligor refuses to apply his property in
satisfaction of the judgment; or
7. When it appears that the appointment of a receiver is
the most convenient and feasible means of preserving
administering, or disposing of the property (Sec.1, Rule
59).
Q: What are the instances where receivership will not lie?
A:
1. Receivership cannot be effected on a property in
custodia legis (LizarragaHnos. V. Abada, 40 Phil 124).
But a receiver can be appointed where a property in
custody of an administrator or executor is in danger of
imminent loss or injury (Dolor v. Sindian, G.R. No. L-
27631, April 30, 1971);
150
 CIVIL PROCEDURE

2. Where the action is merely to obtain a money
judgment on unpaid credits and not to enforce a lien
upon specific property or funds in the possession of
the defendant, the appointment of receiver is
improper (Bonaplata vs. Ambler et. al.; 2 Phil 392;
Regalado p. 746).
3. In actions involving possession of or title to real
property, the appointment of receiver may be made
only if there is clear necessity to protect the applicant
from grave or irremediable damages (Camiling vs. De
Aquino, 103 Phil 128);
REQUISITES
Q: What are the requisites in the application for
receivership?
9. Do such acts respecting the property as the court may
authorize; and
10. Invest funds in his hands only by order of the court
upon the written consent of all the parties (Sec. 6, Rule
59)
TWO KINDS OF BONDS
Q: What is the 2-bond requirement in filing a petition for
receivership?
A:
1. Bond posted by the applicant (Sec. 2, Rule 59)
2. Bond posted by receiver appointed The receiver
before entering upon his duties shall be sworn to
perform them faithfully and shall file a bond to the
effect that he will faithfully discharge his duties in the
action and obey the orders of the court (Sec. 4, Rule
59).

A: Note: A counterbond may be filed by the adverse party executed

to the applicant, in an amount to be fixed by the court, to the
1. Party applying for receivership has an existing interest
effect that such party will pay the applicant all damages he may
in the property in litigation; suffer by reason of the acts, omissions, or other matters specified
2. Verified application filed at any stage of the in the application as ground for such appointment in which case,
proceedings even after final judgment, prior to the the application may be denied, or the receiver discharged, when
satisfaction of judgment (Sec. 1, Rule 59); the adverse party files a bond (Sec. 3, Rule 59).
3. Posting of bond (Sec. 2, Rule 59);
4. That the property or funds is in danger of being lost, TERMINATION OF RECEIVERSHIP
wasted or dissipated (Sec. 1, Rule 59);
5. Receiver must be sworn to perform his duties faithfully Q: What are the grounds for the discharge of receiver?
(Sec. 4, Rule 58)
A:
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER 1. Posting of counterbond by adverse party (Sec. 3, Rule
59)
Q: What is the requirement before an order of
appointment may be issued? Note: Where counterbond is insufficient or defective,
receiver may be re-appointed. (Sec. 5, Rule 59)
A: The applicant must file a bond executed in favor of the
party against whom the application is presented, in an 2. Appointment of receiver was made without sufficient
amount fixed by court, to pay damages in case receivership cause (Sec. 3, Rule 59)
is procured without sufficient cause. The court may require 3. Insufficient or defective applicants bond (Sec. 5, Rule
an additional bond for further security (Sec. 2, Rule 59). 59)
4. Insufficient or defective receivers bond (Sec. 5, Rule
GENERAL POWERS OF A RECEIVER 59)
5. Receiver no longer necessary (Sec. 8, Rule 59)
Q: What are the powers of a receiver?
Q: What is the remedy against a person who refuses or
A: neglects to deliver the property subject to receivership?
1. Power to bring and defend actions in his own name;
2. Take and keep possession of the property in A: He may be punished for contempt and shall be liable to
controversy; the receiver for the money or the value of the property and
3. Receive rents; other things so refused or neglected to be surrendered,
4. Collect debts due to himself as receiver or to the fund, together with all damages that may have been sustained by
property, estate, person or corporation of which he is the party entitled thereto as a consequence of such refusal
a receiver; or neglect (Sec. 7, Rule 59).
5. Compound for and compromise debts collected;
6. Make Transfers; Q: Paula filed a complaint against Jolly for the foreclosure
7. Pay outstanding debts; of a mortgage of a furniture factory with a large number
8. Divide money and other property that shall remain of machinery and equipment. During the pendency of the
among the persons legally entitled to receive the foreclosure suit, Paula learned from reliable sources that
same; Jolly was quietly and gradually disposing of some of his
machinery and equipment to a businessman friend who

151 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

was also engaged in furniture manufacturing such that personal property involved person
from confirmed reports Paula gathered, the machinery Extends only to personal Extends to all kinds of
and equipment left with Jolly were no longer sufficient to property capable of manual property whether real,
answer for the latter's mortgage indebtedness. In the delivery personal or incorporeal
meantime, judgment was rendered by the court in favor Used to recover personal Recover property being
of Paula but the same is not yet final. Knowing what Jolly property even if not being concealed, removed or
has been doing, if you were Paula's lawyer, what action concealed, removed or disposed
would you take to preserve whatever remaining disposed
machinery and equipment are left with Jolly? Why? (2001 GR:Cannot be availed of Can be availed of even if
Bar Question) when property is in property is in custodia
custodialegis(under legis
A: Paulas lawyer should file a verified application for the attachment) or seized
appointment by the court of one or more receivers. under search warrant
Receivership is proper in an action by the mortgagee for the
foreclosure of a mortgage when it appears that the XPN:
property is in danger of being wasted or dissipated or 1. When the seizure is
materially injured and that its value is probably insufficient illegal (Bagalihog v.
to discharge the mortgage debt. Fernandez,G.R. No.
92270, June 27, 1991);
Q: How is receivership terminated? and
2. Where there is reason
A: to believe that the
1. By the court motu propio or on motion by either party seizure will not
2. Based on the following grounds: anymore be followed
a. Necessity for receiver no longer exists by the filing of the
b. Receiver asserts ownership over the property criminal action in court
(Martinez v. Grao, G.R. No. L-25437, August 14, or there are conflicting
1926) claims (Chua v. CA, G.
3. After due notice and hearing to all interested party R. No. 79021, May 17,
(Sec. 8, Rule 59) 1993)
The property either The property does not
REPLEVIN belongd to the plaintiff or belong to the plaintiff but
one over which the plaintiff to the defendant.
Q: What is Replevin? has a right of possession.
Property of GOCCs cannot Properties of GOCCs may
A: It is an action whereby the owner or person entitled to be reached be reached if utilized in
repossession of goods or chattels may recover those goods its proprietary function.
or chattels from one who has wrongfully distrained or Sheriff takes possession of Sheriff does not take
taken or who wrongfully detains such goods or chattels the property subject of the possession of the
th
(Blacks Law Dictionary. 6 ed.). Replevin may be a main replevin and hold the same property attached except
action or a provisional remedy. As a principal action its for a period of 5 days after constructively placing it
ultimate goal is to recover personal property capable of which said property will be under custodia legis.
manual delivery wrongfully detained by a person. The main delivered to the party who
action for replevin is primarily possessory in nature and obtained the writ.
generally determines nothing more than the right of Bond to be posted is Bond amount is fixed by
possession (Riano, Civil Procedure: A Restatement for the double the value of the court and does not
Bar, p. 593, 2009 ed.). property sought to be exceed the claim or value
recovered of the property to be
Q: Distinguish replevin from preliminary attachment. attached (Regalado,
Remedial Law
A: Compendium, Vol. 1, p.
Replevin Preliminary Attachment th
753-754, 10 ed.; Riano,
Recovery of possession of Available even if recovery Civil Procedure: A
personal property is the of personal property is Restatement for the Bar,
principal relief and only an incidental relief p. 597-598, 2009 ed.).
damages are incidental
This is available before Available from Note: These remedies cannot be availed of in the same case.
defendant files an answer commencement but
before entry of judgment Q: To be able to secure financial accommodations from
Available only where May be resorted to even Makati Leasing, Wearever discounted and assigned
defendant is in actual or if personal property is in several receivables under a Receivable Purchase
constructive possession of the custody of a third Agreement. To secure the collection of the receivables

UNIVERSITY OF SANTO TOMAS 152

2013 GOLDEN NOTES
 CIVIL PROCEDURE
assigned, private respondent executed a chattel mortgage
over certain machineries which were bolted to the
ground. Upon default Makati Leasing move for
extrajudicial foreclosure of the mortgage properties and
filed an action for replevin which was granted by the
court. Can the machineries bolted to the ground be a
subject of replevin?
A: Machineries bolted to the ground are real properties
that may not be the subject to replevin (Makati Leasing and
Finance Corporation v. Wearever Textile Mills Inc. GR No L-
58469, May 16, 1983).
WHEN MAY WRIT BE ISSUED
Q: When may a writ of replevin be issued?
A: This may only be obtained when the defendant in the
action has not yet filed his answer to the complaint where
it is necessary to:
1. Protect plaintiffs right of possession to property
2. Prevent defendant from destroying, damaging or
disposing of the property
Q: Can a writ of replevin be issued anywhere in the
Philippines?
A: Yes, under the Resolution of the Supreme Court en banc
dated Jan. 11, 1983, a writ of replevin like the one issued in
the present case may be served anywhere in the Philippines
(Fernandez v. International Corporate Bank now Union Bank
of the Philippines, GR No 131283, Oct. 7, 1999).
REQUISITES
Q: What are the requisites in applying for replevin?
A:
1. The application for the writ must be filed at the
commencement of the action or at anytime beofre the
defendant answers (Sec. 1 Rule 60);
2. The application must contain an affidavit where the
applicant particularly decribes the property that he is
the owner of the property or that he is entitled to the
possession thereof;
Note: The affidavit must contain the following:
a. Applicant is the owner of the property claimed,
particular description of such, entitlement to
possession
b. Property is wrongfully detained, alleging cause of
detention according to applicants knowledge,
information and belief
c. Property has not been taken for tax assessment or fine,
or seized by writ of execution, preliminary
attachment, in custodia legis, if so seized, that is
exempt or should be released from custody
153
d. Actual market value of the property (Sec. 2, Rule 60)
3. The applicant must give a bond, executed to the
adverse party and double the value of the property
(Sec. 2, Rule 60)
AFFIDAVIT AND BOND; REDELIVERY BOND
Q: What is redelivery bond? When is it required?
A: Bond, which must be double the value of property, to
answer for the return of property if adjudged and pay for
such sum as he may recover from the applicant (Sec. 2, Rule
60). It is required that the redelivery bond be filed within
the period of 5 days after the taking of the property. (Yang
v. Valdez, 177 SCRA 141)
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY
Q: What are the duties of the sheriff?
A: Upon receiving such order,
1. the sheriff must serve a copy thereof on the adverse
party, together with a copy of the application, affidavit
and bond, and must forthwith
2. take the property, if it be in the possession of the
adverse party, or his agent, and retain it in his custody.
3. If the property or any part thereof be concealed in a
building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the
building or enclosure to be broken open and take the
property into his possession.
4. After the sheriff has taken possession of the property as
herein provided, he must keep it in a secure place and
shall be responsible for its delivery to the party entitled
thereto upon receiving his fees and necessary expenses
for taking and keeping the same (Sec. 4, Rule 60).
Q: When should the sheriff deliver the property to the
applicant?
A: The sheriff shall retain the property for 5 days. Within
such period, the adverse party may object to the sufficiency
of the applicants bond or surety or he may file a redelivery
bond. After 5 days and the adverse party failed to object or
the redelivery bond is insufficient, the sheriff shall deliver
the property to the applicant (Sec. 5).
Q: What are the instances where the defendant is entitled
to the return of the property under a writ of replevin?
A:
1. He seasonably posts a redelivery bond (Sec. 5, Rule 60)
2. Plaintiffs bond is found to be insufficient or defective
and is not replaced with proper bond
3. Property is not delivered to the plaintiff for any reason
(Sec. 6, Rule 60)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What are the remedies of a third person whose Declaratory relief action
property is taken by virtue of a replevin? is brought before there is
breach.
A:
1. Third party shall file and serve affidavit upon sheriff Interpleader plaintiff
and applicant stating his entitlement to possession files a complaint even if
2. Sheriff shall return the property to third person unless he has sustained no actual
applicant files a bond (same amount as the value of transgression of his rights
the property) approved by court to indemnify the third (Riano, Civil Procedure: A
person Restatement for the Bar,
3. Claim for damages upon said bond must be filed within p. 603, 2009 ed.).
120 days from date of filing of the bond Venue
Determined by either The venue of special civil
Q: Is the Rule on Prior or Contemporaneous Service of the residences of the actions is governed by the
Summons observed in replevin? parties where the general rules on venue,
action is personal or by except as otherwise
A: Yes. Although the writ of replevin may be issued ex location of the property indicated in the particular
parte, it cannot be implemented or enforced if not where the action is real rule for said special civil
preceded or accompanied by a service of summons. (Riano, Civil Procedure: action. Thus, actions for
A Restatement for the certiorari, prohibition and
SPECIAL CIVIL ACTION Bar, p. 603, 2009 ed.). mandamus should be
commenced in the proper
NATURE OF SPECIAL CIVIL ACTIONS Regional Trial Court, but
the same may, in proper
Q: What is special civil action? When is it filed? cases, be commenced in
the Supreme Court or
A: Since a civil action in general is one by which a party sues Court of Appeals (Sec. 4,
another for the enforcement or protection of a right, or the Rule 65); and special rule
prevention or redress of a wrong (Sec. 3[a], Rule 1, Rules of of venue is provided for
Court), a special civil action is generally brought or filed for quo warranto proceedings
the same purpose. (Sec. 7, Rule 66)
(Regalado, Remedial Law
Q: What are special civil actions commenced by complaint Compendium, Vol. I, p.
th
and petition? 770, 10 ed.).
Jurisdiction
A: May be filed initially in There are special civil
PETITION COMPLAINT either the Municipal actions which can only be
Trial Court or Regional filed in a Municipal Trial
Declaratory Relief (Rule 63) Interpleader (Rule 62) Trial Court depending Court like the actions for
Review of adjudications of upon the jurisdictional forcible entry and
COMELEC and COA (Rule Expropriation (Rule 67) amount or nature of unlawful detainer. There
64) the action involved are also special civil
Certiorari, prohibition and Foreclosure of real estate (Riano, Civil Procedure: actions which cannot be
mandamus (Rule 65) mortgage (Rule 68) A Restatement for the commenced in the
Bar, p. 604, 2009 ed.). Municipal Trial Court
Quo warranto (Rule 66) Partition (Rule 69) foremost of which are the
Forcible entry and Unlawful petitions for certiorari,
Detainer (Rule 70) (Riano, prohibition and
Contempt (Rule 71) Civil Procedure: A mandamus (Riano, Civil
Restatement for the Bar, p. Procedure: A Restatement
602, 2009 ed.). for the Bar, p. 604, 2009
ed.).
ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL ACTIONS Motion to Dismiss
By virtue of Sec. 3 of Rule 1, the provisions of Rule 16
ORDINARY ACTION SPECIAL CIVIL ACTION on motion to dismiss are applicable in special civil
Cause Of Action action (National Power Corporation vs. Valera, L-
It is based on a cause of Not all special civil actions 15295, Nov. 30, 1961; Regalado, Remedial Law
th
action (Sec. 1, Rule 2, are based on a cause of Compendium, Vol. I, p. 771, 10 ed.).
Rules of Court). action, i.e. declaratory
relief (Rule 63) and
interpleader (Rule 62).

UNIVERSITY OF SANTO TOMAS 154

2013 GOLDEN NOTES
 CIVIL PROCEDURE

JURISDICTION AND VENUE

Q: Who has jurisdiction over special civil actions, where should it be filed, who may file it and when should it be filed?

A:
Jurisdiction Venue Who May File When To File
Interpleader (Rule 62)
MTC where the value of Where the plaintiff or any A person who claims no interest Within a reasonable
the claim or the personal of the principal plaintiff whatever in the subject matter time after a dispute
property does not exceed resides or where the or an interest which in whole or has arisen without
P300,000 or P400,000 in defendant or any of the in part is not disputed by the waiting to be sued by
Metro Manila or where the principal defendants claimants having claims upon either of the
value of the real property resides at the option of the same subject matter (Sec 1, contending claimants.
does not exceed P20,000 the plaintiff. (Sec. 2, Rule Rule 62) Otherwise, it may be
or P50,000 in Metro 4) barred by laches or
Manila. undue delay. This is
Note: The venue of special because after
RTC if the value exceeds civil actions is governed by judgment is obtained
the above amounts or if the general rules on venue, against the plaintiff by
except as otherwise
the subject matter is one claimant, he is
indicated in the particular
exclusively within the rule for said special civil already liable to the
jurisdiction of the RTC action. latter. (Wackwack
(Judiciary Act of 1980; BP Golf & Country Club v
Blg 129 (sec 19(2), Sec Won, GR L-23851
33(3)as amended by RA Mar. 26, 1976)
7691)
Declaratory Relief (Rule 63)

RTC
Note: It would be error to file
the petition with the SC which
has no original jurisdiction to
entertain a petition for
declaratory relief (Tano v.
Socrates, G.R. No. 110249,
Aug. 14, 1997)
Where the petitioner or
the respondent resides at
the election of the
petitioner (Section 2, Rule
4, Rules of Court).
a. Any person interested
under a deed, will, contract
or other written
instrument, or whose rights
are affected by a statute,
executive order or
regulation, ordinance, or
any other governmental
regulation.
The petition must be
filed before there is a
breach of contract or
violation of the
statute or ordinance
(Sec 1, Rule 63, Rules
of Court).

b. All persons who have or

claim any interest which
could be affected by the
declaration.

155 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

Review of Judgments of COMELEC AND COA (Rule 64 in relation to Rule 65)
Supreme Court on Supreme Court
certiorari under Rule 65
a.) RTC, b.) CA, c.) SC, d.)
Sandiganbayan, e.)
COMELEC in aid of their
appellate jurisdiction
(A.M. No. 07-7-12-SC)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
REMEDIAL LAW
c. A person may file an action
for reformation of an
instrument, to quiet title or
to consolidate ownership
under Art. 1607 of the Civil
Code under this Rule
(similar remedies)
Note: The rights of persons not
made parties to the action do not
stand to be prejudiced by the
declaration (Sec. 2). Since their
rights are not to be prejudiced by
their non-inclusion, the failure to
implead such person does not
therefore, affect the jurisdiction of
the court over the petition (Baguio
Citizens Action, Inc. v. The City
Council, G.R. No. L-27247, Apr. 20,
1983)
The party aggrieved by a Within thirty (30)
judgment or final order or days from notice of
resolution of the Commission the judgment or final
on Elections and the order or resolution
Commission on Audit sought to be
reviewed.
The filing of a motion
for new trial or
reconsideration of
said judgment or final
order or resolution, if
allowed under the
procedural rules of
the Commission
concerned, shall
interrupt the period
herein fixed. If the
motion is denied, the
aggrieved party may
file the petition within
the remaining period,
but which shall not be
less than five (5) days
in any event,
reckoned from notice
of denial.
Certiorari, Prohibition, Mandamus (Rule 65)
RTC: if it is directed A person aggrieved by any Within 60 days from
against a municipal trial tribunal, board or officer notice of the
court, a corporation, a exercising judicial or quasi- judgment, order or
board, an officer or a judicial functions which has resolution. In case a
person. acted without or in excess of motion for
its or his jurisdiction, or with reconsideration or
CA or with the SB, grave abuse of discretion new trial is timely
whether or not the same amounting to lack or excess of filed, whether such
is in aid of the courts jurisdiction (Sec. 1, Rule 65). motion is required
appellate jurisdiction. or not, the petition
shall be filed within
156
 CIVIL PROCEDURE

If the petition involves 60 days counted

an act or an omission of from the notice of
a quasi-judicial agency, the denial of the
unless otherwise motion (Sec. 4, Rule
provided by law or the 65 as amended by
Rules, the petition shall A.M. No. 07-7-12-
be filed with and be SC).
cognizable only by the
Court of Appeals.

In election cases
involving an act or
omission of MTC /RTC, it
shall be filed exclusively
with the COMELEC, in aid
of its appellate
jurisdiction (Sec. 4, Rule
65)
Quo Warranto (Rule 66)
RTC, CA, SC, (Sec. 7, Rule With the SC, CA, or in the The government through the Within 1 year after
66) SB in aid of its RTC exercising Solicitor General or a Public the cause of such
appellate jurisdiction (PD jurisdiction over the Prosecutor. It may also be filed ouster, or the right
1606, 4 as amended by RA territorial area where by a person claiming to be of the petitioner to
No 8249, 4) the respondent or any of entitled to a public office or hold such office or
the respondents resides. position usurped or unlawfully position, arose.
When the Solicitor held or exercised by another
General commences the (Secs. 2,3 and 5, Rule 66) Action for damages
action, it may be brought must be commenced
in the RTC of the City of within 1 year after
Manila, in the CA, or in the entry of the
the SC (Sec. 7, Rule 66) judgment
establishing the
Note: Subject to the petitioner's right to
principle of Hierarchy of the office in
Courts question (Sec. 11,
Rule 66)
Expropriation (Rule 67)
RTC (incapable of Land: where the Government or any of its At anytime before
pecuniary estimation) property is located instrumentalities ((Riano, Civil the actual taking and
(Barangay San Roque v. Procedure: A Restatement for entering into
Heirs of Pastor, G.R. No. the Bar, p. 679, 2009 ed.). possession of the
138896, June 20, 2000) real property
Personal property: the
place where the plaintiff
or defendant resides, at
the election of the
plaintiff (Section 2, Rule
4, Rules of Court).

Foreclosure of REM (Rule 68)

RTC (incapable of Where the land or any Mortgagee At any time after the
pecuniary estimation) part thereof is located mortgagor defaults
(Barangay San Roque v. (Section 2, Rule 4, Rules in the payment of his
Heirs of Pastor, G.R. No. of Court). debt
138896, June 20, 2000)

Partition (Rule 69)

RTC 1. Real property A person having the right to It can be made
(incapable of pecuniary where the property compel the partition of real anytime and the
estimation) (Bar 2000 as is located estate. (Sec 1, Rule 69, Rules of right to demand
cited in Riano, Civil 2. Personal property Court) partition does not
Procedure: A Restatement the place where the prescribe.

157 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

for the Bar, pp. 192, 2009 plaintiff or Prescription does not
ed.); defendant resides at run in favor of co-
the election of the owner or co-heir
plaintiff (Sec. 13, against his co-owner
Rule 69) or co-heirs as long as
there is a recognition
of the co-ownership
expressly or
impliedly (Art 494,
Civil Code of the
Philippines) But a co-
owner may acquire
ownership by
prescription where
there exists a clear
repudiation of the
co-ownership and
the co-owners are
apprised of the claim
of adverse and
exclusive ownership
(Heirs of Flores
Restar v. Heirs of
Cichon, 475 SCRA
731)
Forcible Entry (Rule 70)
MTC, MTCCs, MCTC Where the property is A person deprived of the Within 1 year from
Metropolitan Trial Courts; located because it is a possession of any land or the date of entry or
covered by Rule on real action (Riano, Civil building by force, intimidation, taking of possession
Summary Procedure (Sec Procedure: A threat, strategy or stealth (Sec. by force,
3, RA no 7691) Restatement for the Bar, 1, Rule 70) intimidation, threat,
pp. 203, 2009 ed.); strategy, or stealth.

Note: In Vda. De Prieto

v. Reyes (G.R. No. L-
21470, June 23, 1965),
the SC ruled that to
deprive the lawful
possessor of the benefit
of the summary action
under Rule 70 simply
because the stealthy
intruder manages to
conceal the trespass for
more than a year would
be to reward
clandestine usurpation
even if it is unlawful.
Unlawful Detainer (Rule 70)
MTC, MTCCs, MCTC Where the property is A lessor, vendor, vendee, or Within 1 year from
Metropolitan Trial Courts; located because it is a other person against whom the date of the last
covered by Rule on real action (Riano, Civil the possession of any land or demand to vacate in
Summary Procedure. (Sec Procedure: A building is unlawfully withheld case of non-payment
3, RA no 7691) Restatement for the Bar, after the expiration or of rent or non-
pp. 203, 2009 ed.); termination of the right to compliance with the
hold possession, by virtue of conditions of the
any contract, express or lease. In case of
implied, or the legal several demands, the
representatives or assigns of one-year period is
any such lessor, vendor, counted from the
vendee, or other person (Sec. last demand. In case
1, Rule 70) of tacit renewal of
the lease, the one-
year period is
UNIVERSITY OF SANTO TOMAS 158
2013 GOLDEN NOTES
 CIVIL PROCEDURE

counted from the

date of the notice to
quit. In case of
occupancy on mere
tolerance or under a
temporary permit,
the one-year period
is counted from the
date of the
revocation of the
permit.

XPN: When the

subsequent demands
were merely in the
nature of reminders
of the original
demand, in which
case the one year
period is counted
from the first
demand (Desbarats
v. Laureano, G.R. No.
L-21875, Sept. 27,
1966).
Contempt (Rule 71)
MTC, RTC, CA, SC Where the charge for Proceedings for indirect At any time after the
indirect contempt has contempt may be initiated contemptuous act
been committed against motu proprio by the court has been committed.
RTC or a court of against which the contempt
equivalent or higher was committed by an order or
rank, or against an other formal charge requiring
officer appointed by it, respondent to show cause
the charge may be filed why he should not be
with such court. punished for contempt (Sec. 4,
Rule 70)
Where such contempt
has been committed
against a lower court,
the charge may be filed
with the RTC of the place
in which the lower court
is sitting; but the
proceedings may also be
instituted in such lower
court subject to appeal
to the RTC of such place
(Sec. 5, Rule 70)

Q: What are the special civil actions which can be filed in

or are within the jurisdiction of the inferior courts or
courts of first level?
A:
1. Interpleader, provided the amount involved is within
its jurisdiction (Makati Development Corp. vs.
Tanjuatco, et al., L-26443, Mar. 25, 1969);
2. Ejectment Suits (Sec. 88, R.A 296; Rule 70); and
3. Contempt (Secs. 1 and 4, Rule 71; Regalado, Remedial
th
Law Compendium Vol. I, p. 771, 10 ed.).
Q: What is interpleader? (1998 Bar Question)
A: It is a special civil remedy whereby a party who has
property in his possession or an obligation to perform,
either wholly or partially, but who claims no interest in the
subject, or whose interest, in whole or in part, is not
disputed by others, goes to court and asks that conflicting
claimants to the property or obligation be required to
litigate among themselves in order to determine finally who
is entitled to the same (Sec. 1, Rule 62).

INTERPLEADER (RULE 62)

159 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: The remedy is afforded not to protect a person against a 2. There must be at least two or more conflicting
double liability but to protect him against a double vexation in claimants;
respect of one liability. (Beltran v. Peoples Homesite & Housing 3. The parties to be interpleaded must make effective
Corp., L-25138, Aug. 28, 1969; Regalado, Remedial Law
claims; and
Compendium Vol. I, p. 775, 10th ed)
4. The subject matter must be one and the same (Sec. 1,
Rule 62).
Q: Can an interpleader be filed in a counterclaim?
WHEN TO FILE
A: Yes. An interpleader is commenced by an action, which
includes a counterclaim. Moreover, Form 5 under the Rules
Q: When must an action for interpleader be filed?
of Court is entitled Answer with Counterclaim for
Interpleader. Ex: If there are two claimants under a
A: An action for interpleader must be filed within a
warehouse receipt and one of them sues not only the other
reasonable time after the dispute has arisen, otherwise it
claimant but also the warehouseman, the warehouseman
may be barred by laches. (Regalado, Remedial Law
may file an answer with a counterclaim for interpleader for th
Compendium Vol. I, p. 776-777, 10 ed.; Wack Wack Golf &
the two claimants to prove their respective claim of
Country Club Inc. vs. Lee Won, et al., L-23851, Mar. 26,
ownership.
1976).
Q: Distinguish interpleader from intervention
Q: Who can file a complaint for interpleader?
A:
A: It is filed by the person against whom the conflicting
INTERPLEADER INTERVENTION
claims are made (Sec. 1, Rule 62, Rules of Court). The
It is a special civil action, It is not an original action but
person who files the complaint shall pay the docket fees
independent and original; merely ancillary and depends
and other lawful fees and shall bear the costs and other
upon the existence of a
litigation expenses even if he has no interest in the subject
previous pending action;
matter of the action, unless the court shall order otherwise
Commenced by the filing Commenced by a motion to
(Sec. 7, Rule 62; Riano, Civil Procedure: A Restatement for
of a complaint, it being an intervene filed in a pending
the Bar, pp. 611-612, 2009 ed.).
original action; case attaching thereto the
pleading-in-intervention; Note: The costs, expenses, and attorneys fees incurred by plaintiff
Filed by a person who has Filed by a person who has a in the action is recoverable from the defendant who loses in the
no interest in the subject legal interest in any of the action and is found by the court to have caused the unnecessary
matter of the action or if following: litigation (Menzi & Co. vs. Bastida, 63 Phil 16).
he has an interest, the (a) The subject matter
same is not disputed by of the litigation; Q: Should there be service of summons in interpleader?
the claimants (Riano, Civil (b) The success of
Procedure: A Restatement either of the A: Yes. Summons shall be served upon the conflicting
for the Bar, pp. 611-612, parties; claimants, together with a copy of the complaint and order
2009 ed.); (c) The success of both (Sec. 3, Rule 62).
of the parties; or
(d) He may be Q: What is the period in filing an answer?
adversely affected
by the disposition A: Each claimant shall file his answer setting forth his claim
or distribution of within fifteen (15) days from service of the summons upon
property in the him, serving a copy thereof upon each of the other
judgment. conflicting claimants who may file their reply thereto as
The defendants who are If a complaint-in-intervention provided by these Rules (Sec. 5, Rule 62).
brought are being sued is filed, the defendants are
precisely to implead them already parties to an existing Note: If any claimant fails to plead within the time fixed, the court
(Regalado, Remedial Law suit not because of the may, on motion, declare him in default and thereafter render
judgment barring him from any claim in respect to the subject
Compendium Vol. I, p. 321, intervention but because of
th matter (Sec. 5, Rule 62).
10 ed.). the original suit (Riano, Civil
Procedure: A Restatement for
Q: What are the other allowed pleadings in an
the Bar, pp. 611-612, 2009
interpleader?
ed.).
A:
REQUISITES FOR INTERPLEADER a. Counterclaim;
b. Cross-claims;
Q: What are the requisites of a valid interpleader? c. Third-party complaints; and
d. Responsive pleadings thereto, as provided by these
A: Rules (par. 2, Sec. 5, Rule 62).
1. The plaintiff claims no interest in the subject matter or
his claim thereto is not disputed; Note: The second paragraph was added to Section 5 to expressly

UNIVERSITY OF SANTO TOMAS 160

2013 GOLDEN NOTES
 CIVIL PROCEDURE
authorize the additional pleadings and claims enumerated therein, court to determine any question of construction or validity
in the interest of a complete adjudication of the controversy and its arising, and for a declaration of his rights or duties
incidents (Arreza vs. Diaz, G.R. No. 133113, Aug. 30, 2001). thereunder. (Sec. 1, Rule 63)
Q: What is the effect if there are no conflicting claims
Q: What is the purpose of an action for declaratory relief?
among the defendants?
A: To seek for a judicial interpretation of an instrument or
A: The complaint for interpleader may be dismissed for lack
for a judicial declaration of a persons rights under statute
of cause of action.
and not to ask for affirmative reliefs or any other relief
beyond the purpose of the petition as declared under the
Q: What are the grounds for a claimant to file a motion to
rules. (Riano, Civil Procedure: A Restatement for the Bar, p.
dismiss?
616, 2009 ed)
A: Note: Declaratory judgments are to be distinguished from those
1. Impropriety of the interpleader action (not a failure to which are advisory in character, since they are res judicata and
state a cause of action under Rule 16 because the binding upon the parties and those in privity with them, and from
meaning of a cause of action in ordinary civil actions decisions of abstract or moot questions since they must involve a
cannot apply to an interpleader (Riano, Civil real controversy. (16 Am. Jur. Declaratory Judgments)
Procedure: A Restatement for the Bar, p. 609, 2009
ed.);
2. Other appropriate grounds specified in Rule 16 (Sec. 4,
Rule 62).
Q: Distinguish Declaratory Relief from Ordinary Action
Q: What is the effect of filing a motion to dismiss?
A:
A: The period to file the answer shall be tolled and if the Declaratory Relief Ordinary Action
motion is denied, the movant may file his answer within the No writ of execution Writ of execution is
remaining period, but which shall not be less than five (5) -Since the objective of available (Riano, Civil
days in any event, reckoned from notice of denial (Sec. 4, the petition is merely Procedure: A
Rule 62). an interpretation of a Restatement for the
deed or a contract, Bar, p. 617, 2009 ed.)
DECLARATORY RELIEF AND SIMILAR REMEDIES (RULE 63) hence, there is nothing
to execute (Riano, Civil
Q: What are the 2 types of action covered by Rule 63? Procedure: A
Restatement for the
A: Bar, p. 617, 2009 ed.)
1. Petition for declaratory relief; and No breach or violation There is breach or
2. Similar remedies: (Sec 1 Rule 63, Rules of violation of right
a. Action for reformation of an instrument; Court) (Riano, Civil
b. Action to quiet title; and Procedure: A
c. Action to consolidate ownership under Art. 1607 Restatement for the
NCC (Riano, Civil Procedure: A Restatement for the Bar, p. 618, 2009 ed.)
Bar, p. 612, 2009 ed.). Judgment stands by Judgment involves
itself (Albano, executory or coercive
Q: What is the distinction between the declaratory relief Remedial Law relief
and similar remedies? Reviewer, p. 707, 2010
ed)
A: In declaratory relief, the court is given the discretion to There is additional Motion to dismiss
act or not to act on the petition. It may therefore, choose ground for MTD Rule Rules 16 and 17
not to construe the instrument sought to be construed or 63, Sec 5. (The court
could refrain from declaring the rights of the petitioner may refuse to exercise
under the deed or the law. With respect to actions the power to declare
described as similar remedies, the court cannot refuse to rights and to construe
render a judgment thereon. (Riano, Civil Procedure: A instruments where a
Restatement for the Bar, pp. 612-613, 2009 ed) decision would not
terminate the
Q: What is declaratory relief? uncertainty or
controversy or where
A: It is a special civil action brought by a person interested declaration is not
under a deed, will, contract or other written instrument, or necessary and proper
whose rights are affected by a statute, executive order or under the
regulation, ordinance, or any other governmental circumstances)
regulation, before breach or violation thereof, asking the

161 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What are the subject matters in a petition for
declaratory relief?
A: The subject matter in a petition for declaratory relief
may be any of the following:
a. deed;
b. will;
c. contract or other written instrument;
d. statute;
e. executive order or regulation;
f. ordinance; or
g. any other governmental regulations (Sec. 1, Rule 63).
Note: The enumeration of subject matter is exclusive, subject to
clear and unambiguous contract or statute. (Riano, Civil Procedure:
A Restatement for the Bar, p. 614, 2009 ed)
WHO MAY FILE THE ACTION
Q: Who may file an action for declaratory Relief?
A: Any person:
1. Interested under a deed, will, contract or other written
instrument (Sec. 1, Rule 63);
2. Whose rights are affected by a statute, executive order
or regulation, ordinance or any other governmental
regulation (Sec. 1, Rule 63); and
3. The other parties are all persons who have or claim any
interest which would be affected by the declaration
(Sec. 2, Rule 63).
REQUISITES OF ACTION FOR DECLARATORY RELIEF
Q: What are the requisites of a valid declaratory relief?
A:
1. The subject-matter of the controversy must be a deed,
will, contract, or other written instrument, statute,
executive order or regulation or ordinance;
2. The terms of said documents and validity thereof are
doubtful and require judicial construction (Santos vs.
Aquino, et. al, 94 Phil 65);
3. There must have been no breach of the document in
question (Teodoro vs. Mirasol, 99 Phil. 150;
Reparations Commission vs. Northern Line, Inc. L-
24835, July 31, 1970). Otherwise an ordinary civil
action is the remedy;
4. There must be an actual justiciable controversy or
ripening seeds of one between persons whose
interests are adverse;
5. The issue must be ripe for judicial determination
(Tolentino vs. Board of Accountancy, et. al., 90 Phil.
83), as for example, where all administrative remedies
have been exhausted; and
6. Adequate relief is not available through other means
or other forms of action or proceedings (Ollada vs.
Central Bank, L-1357, May 31, 1962; Regalado,
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
th
Remedial Law Compendium Vol. I, pp. 779-780, 10
ed.).
Q: What does the phrase to be ripe for judicial
determination or to constitute the ripening seeds of a
controversy, mean?
A: It means that under the facts of the case, there is
threatened litigation in the immediate future, which
litigation is imminent and inevitable unless prevented by
the declaratory relief sought (Tolentino v. Board of
Accountancy, G.R. No. L-3062, Sept. 28, 1951).
Q: To whom shall notices be given?
A:
1. To the Solicitor general if subject matter involves:
a) The validity of a statute, EO or regulation, or any
governmental regulation; or
b) The constitutionality of a local government
ordinance
2. To the Prosecutor or attorney of the local government
unit if subject matter involves validity of a local
government ordinance (Secs. 3-4, Rule 63).
Q: Which court has jurisdiction over actions for
declaratory relief?
A: GR: The appropriate Regional Trial Court (Sec. 1, Rule
63), even if only questions of law are involved. (Bank of
Olangapo, Inc. vs. Comm. Of Land Registration, et. al., L-
47988, Feb. 20, 1981; Regalado, Remedial Law
th
Compendium Vol. I, p. 784, 10 ed)
XPN: If the petition has far-reaching implications and it
raises questions that should be resolved, it may be treated
as one for prohibition or for mandamus, in such case, it
should be filed in the proper court (Regalado, Remedial
th
Law Compendium Vol. I, p. 784, 10 ed).
WHEN COURT MAY REFUSE TO MAKE JUDICIAL
DECLARATION
Q: When may the court refuse to make judicial
declaration?
A: Except in actions falling under similar remedies, the
court, motu proprio or upon motion, may refuse to exercise
the power to declare rights and to construe instruments in
any case:
1. where a decision would not terminate the uncertainty
or controversy which gave rise to the action, or;
2. in any case where the declaration or construction is
not necessary and proper under the circumstances
(Sec. 5, Rule 63).
Note: Where the relief sought would be determinative of issues
rather than a construction of definite stated rights, status, and
other relations commonly expressed in written instruments, the
case is not one for declaratory judgment. Considering that in a
proceeding for declaratory judgment the relief which may be
sought is limited only to a declaration of rights and not a
determination or trial of issues, a declaratory relief proceeding is
162
 CIVIL PROCEDURE
unavailable where a judgment may be made only after a judicial
investigation of the issues (Kawasaki Port Services Corp., et. al. vs.
Amores, et. al., GR No. 58340, July 16, 1991).
CONVERSION TO ORDINARY ACTION
Q: May an action for declaratory relief be converted into
an ordinary civil action?
A: Yes. It may be converted into an ordinary civil action if
before the final termination of the case, a breach or
violation of an instrument, or a statute, executive order or
regulation, ordinance, or any other governmental
regulation should take place (Sec. 6, Rule 63).
Note: The law does not require that there shall be an actual
pending case. It is sufficient that there is a breach of law, an
actionable violation, to bar a complaint for declaratory relief (Borja
v. Villadolid, G.R. No. L-1897, Nov. 28, 1949).
Q: Is a third-party complaint proper in actions for
declaratory relief?
A: No. A third-party complaint is supposed to seek
contribution, indemnity, subrogation or other relief from
the third party defendant in respect to the claim of the
plaintiff against him, and hence it is improper when the
main case is for declaratory relief which purpose is mere
interpretation and construction (Comm. Of Customs, et. al.
vs. Cloribel, et. al. L-21036, June 30, 1977). A compulsory
counterclaim may be set up (Visayan Packing Corp. v.
Reparations Commission, G.R. No. L-20577, May 31, 1987).
Q: In what instances is declaratory relief not available?
A:
1. To obtain judicial declaration of citizenship;
2. Actions to resolve political questions;
3. Those determinative of the issues rather than a
construction of definite status, rights and relations;
4. Terms of assailed ordinances are not ambiguous or of
doubtful meaning;
5. In a petition to seek relief from a moot and academic
question;
6. Where the contract or statute on which action is based
has been breached;
7. When the petition is based on the happening of a
contingent event;
8. When the petitioner is not the real party in interest;
and
9. Where the administrative remedies have not yet been
exhausted.
10. If the decision does not terminate uncertainty or
controversy. (Albano, Remedial Law Reviewer, p.708
2010 ed)
11. Petition for declaratory relief not proper to assail
judgment.
12. Action to ask the court to declare filiation and
consequently hereditary rights (Riano, Civil Procedure:
A Restatement for the Bar, p. 614, 2009 ed.).
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
163
Q: What are the actions similar to declaratory relief?
A:
1. Action for reformation of an instrument authorized
under Arts. 1359 to 1369;
2. Action to quiet title authorized by Arts. 476 to 481 of
NCC; and
3. Action to consolidate ownership under Art. 1607 NCC
(Regalado, Remedial Law Compendium Vol. I, p. 778,
th
10 ed.).
Note: These 3 remedies are considered similar to declaratory relief
because they also result in the adjudication of the legal rights of
the litigants, often without the need of execution to carry
judgment into effect (Regalado, Remedial Law Compendium Vol. I,
p. 778, 10th ed)
REFORMATION OF AN INSTRUMENT
Q: What is meant by reformation of instrument?
A: It is not an action brought to reform a contract but to
reform the instrument evidencing the contract. It
presupposes that there is nothing wrong with the contract
itself because there is a meeting of minds between the
parties. The contract is to be reformed because despite the
meeting of minds of the parties as to the object and cause
of the contract, the instrument which is supposed to
embody the agreement of the parties does not reflect their
true agreement by reason of mistake, inequitable conduct
or accident. The action is brought so the true intention of
the parties may be expressed in the instrument (Art. 1359,
NCC; Riano, Civil Procedure: A Restatement for the Bar, p.
620, 2009 ed.).
Q: When may an instrument be reformed?
A: The instrument may be reformed if it does not express
the true intention of the parties because of lack of skill of
the person drafting the instrument (Art. 1363, NCC). If the
parties agree upon the mortgage or pledge of property, but
the instrument states that the property is sold absolutely or
with a right of repurchase, reformation of the instrument is
proper (Art. 1365, NCC).
Q: What is the remedy if the consent of a party to a
contract has been procured by fraud, inequitable conduct,
or accident?
A: Where the consent of a party to a contract has been
procured by fraud, inequitable conduct or accident, and an
instrument was executed by the parties in accordance with
the contract, what is defective is the contract itself because
of vitiation of consent. The remedy is not to bring an action
for reformation of the instrument but to file an action for
annulment of the contract (Art. 1359, NCC).
Note: Reformation of the instrument cannot be brought to reform
any of the following:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
1. Simple donation inter vivos wherein no condition is
imposed;
2. Wills; or
3. When the agreement is void (Art. 1666, NCC).
CONSOLIDATION OF OWNERSHIP
Q: What is the purpose of an action brought to
consolidate ownership?
A: The action brought to consolidate ownership is not for
the purpose of consolidating the ownership of the property
in the person of the vendee or buyer but for the
registration of the property. Art. 1607 requires the filing of
the petition to consolidate ownership because the law
precludes the registration of the consolidated title without
judicial order (Cruz vs. Leis, 327 SCRA 570).
Note: The concept of consolidation of ownership under Art. 1607,
Civil Code, has its origin in the substantive provisions of the law on
sales. Under the law, a contract of sale may be extinguished either
by legal redemption (Art. 1619) or conventional redemption (Art.
1601). Legal redemption (retracto legal) is a statutory mandated
redemption of a property previously sold. Conventional
redemption (pacto de retro) sale is one that is not mandated by the
statute but one which takes place because of the stipulation of the
parties to the sale. The period of redemption may be fixed by the
parties in which case the period cannot exceed ten (10) years from
the date of the contract. In the absence of any agreement, the
redemption period shall be four (4) years from the date of the
contract (Art. 1606). When the redemption is not made within the
period agreed upon, in case the subject matter of the sale is a real
property, Art. 1607 provides that the consolidation of ownership in
the vendee shall not be recorded in the Registry of Property
without a judicial order, after the vendor has been duly heard.
QUIETING OF TITLE TO REAL PROPERTY
Q: What is an action for quieting title to real property?
A: This action is brought to remove a cloud on title to real
property or any interest therein. The action contemplates a
situation where the instrument or a record is apparently
valid or effective but is in truth and in fact invalid,
ineffective, voidable or unenforceable, and may be
prejudicial to said title to real property. This action is then
brought to remove a cloud on title to real property or any
interest therein. It may also be brought as a preventive
remedy to prevent a cloud from being cast upon title to real
property or any interest therein (Art. 476, Civil Code).
Q: Is it required that the plaintiff be in the possession of
the property before an action is brought?
A: The plaintiff need not be in possession of the real
property before he may bring the action as long as he can
show that he has a legal or an equitable title to the
property which is the subject matter of the action (Art. 477,
Civil Code).
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTIONS OF THE COMMISSION ON ELECTIONS AND
THE COMMISSION ON AUDIT (RULE 64)
Application of Rule 65 under Rule 64
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the constitutional basis for the application of
Rule 65 under Rule 64?
A: Sec. 7, Art. IX-A of the Constitution reads, unless
otherwise provided by the Constitution or by law, any
decision, order or ruling of each commission may be
brought to the Supreme Court on certiorari by the
aggrieved party within 30 days from receipt of a copy
thereof. The provision was interpreted by the Supreme
Court to refer to certiorari under Rule 65 and not appeal by
certiorari under Rule 45. To implement the above
constitutional provision, the SC promulgated Rule 64
(Aratuc v. COMELEC, 88 SCRA 251; Dario vs. Mison, 176
SCRA 84; Riano, Civil Procedure: A Restatement for the Bar,
pp. 623-624, 2009 ed.).
Note: The petition for certiorari shall be filed within thirty (30) days
from notice of the judgment or final order or resolution sought to
be reviewed (Sec. 3, Rule 64). Fresh Period Rule is inapplicable. The
30-day period has express reference to the judgment or a final
order of the commission concerned. (Sec. 3, Rule 64)
Q: What is the mode of review for judgments and final
orders of the COMELEC and COA?
A: A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may
be brought by the aggrieved party to the Supreme Court on
certiorari under Rule 65, except as hereinafter provided
(Sec. 2, Rule 64).
Note: The mode of review under Rule 64 is totally different from
the mode applicable to the judgment, final order or resolution of
the Civil Service Commission (which is also a Constitutional
Commission under Art. XI.). Appeal shall be taken by filing a
verified petition for review to the Court of Appeals under Rule 43.
(Riano, Civil Procedure: A Restatement for the Bar, p. 624, 2009 ed)
Q: What is the effect of filing of a motion for new trial or
reconsideration under Rule 64?
A: The filing of a motion for new trial or reconsideration of
said judgment or final order or resolution, if allowed under
the procedural rules of the Commission concerned, shall
interrupt the period herein fixed.
Note: If the motion is denied, the aggrieved party may file the
petition within the remaining period, but which shall not be less
than five (5) days in any event, reckoned from notice of denial.
(Sec. 3, Rule 64)
Q: When may the court issue an order to comment?
A: If the SC finds the petition sufficient, respondents will be
ordered to file a verified comment within 10 days from
notice of such order (Sec. 6, Rule 64).
Q: When may the court outrightly dismiss the petition?
A:
1. If it was filed manifestly for delay; or
2. The questions raised are too unsubstantial to warrant
further proceedings (Sec. 6, Rule 64)
164
 CIVIL PROCEDURE
3. Failure of the petitioner to comply with any of the Q: Distinguish Rule 64 from Rule 65
requirements under Sec. 5 Rule 64 shall be sufficient
ground for the dismissal of the petition. A:
Rule 64 Rule 65
Q: What are the forms and contents of petition? Directed only to the Directed to any
judgments, final orders tribunal, board or
A: or resolutions of the officers exercising
1. It shall be verified and filed in eighteen (18) legible COMELEC and COA; judicial or quasi-judicial
copies; functions;
2. It shall name the aggrieved party as petitioner and shall Petition is filed Petition may be filed
join as respondents the Commission concerned and the exclusively with SC with CA, SB, RTC, or
person or persons interested in sustaining the under Rule 65; COMELEC as the case
judgment, final order or resolution a quo; may be;
3. It shall state the facts with certainty, present clearly the Must be filed within 30 Must be filed within 60
issues involved, set forth the grounds and brief days from notice of days from notice of
arguments relied upon for review; judgment or resolution; judgment or resolution;
4. It shall pray for judgment annulling or modifying the If MR is denied, the If MR is denied, the
questioned judgment, final order or resolution; aggrieved party may file aggrieved party will
5. It shall be accompanied by a clearly legible duplicate the petition within the have another 60 days
original or certified true copy of the judgment, final remaining period, but within which to file the
order or resolution subject thereof, and if material which shall not be less petition counted from
portions of the record are annexed, they must also be than 5 days. Fresh the notice of denial.
certified. Other pertinent or relevant documentary period rule is Fresh period Rule is
annexes need not be certified true copies, and plain inapplicable. applicable.
copies will suffice (Van Melle Philippines vs. Endaya GR
No. 143132, Sept. 23, 2003). DISTINCTION IN THE APPLICATION OF RULE 65 TO
6. The requisite number of copies of the petition shall JUDGMENTS OF COMELEC AND COA AND APPLICATION OF
contain plain copies of all documents attached to the RULE 65 TO OTHER TRIBUNALS, PERSONS AND OFFICERS
original copy of said petition.
7. The petition shall state the specific material dates Q: Distinguish the mode of review of judgment, final
showing that it was filed within the period fixed herein. orders or resolutions of COMELEC and COA from other
8. It shall contain a sworn certification against forum tribunals, persons and officers.
shopping as provided in the third paragraph of section
3, Rule 46; A:
9. It shall accompanied by proof of service of a copy Rule 64 for COMELEC Review of judgment, final
thereof on the Commission concerned and on the
and COA orders or resolutions of
adverse party other tribunals, persons
and officer
Note: Upon the filing of the petition, the petitioner shall pay to the
clerk of court the docket and other lawful fees and deposit the Petition is based on Petition is based on
amount of P500.00 for costs. (Sec. 4, Rule 64) questions of law questions of law
Mode of review Mode of review
Q: What is the effect of filing a petition for certiorari? Involves review of Involves the review of the
judgments, final orders judgment final orders or
A: It shall NOT stay the execution of the judgment or final or resolutions of resolutions of any tribunal
order or resolution sought to be reviewed, unless the COMELEC and COA board or officer exercising
Supreme Court shall direct otherwise upon such terms as it judicial or quasi-judicial
may deem just (Sec.8, Rule 64). functions.
Filed within 30 days from Filed within 60 days from
Note: To prevent the execution of the judgment, Rule 65 may be notice of judgment, final notice of judgment, final
availed of suppletorily and the petitioner may obtain TRO or a writ order or resolution order or resolution sought
of preliminary injunction because the mere filing of the petition sought to be reviewed to be reviewed
does not interrupt the course of the principal case (Sec. 7, Rule 65;
Does not stay the Stays the judgment or
Riano, Civil Procedure: A Restatement for the Bar, p. 627, 2009 ed.).
execution unless SC shall order appealed from
direct otherwise upon
Q: When is the petition deemed submitted for decision?
such terms as it may
deem just (Sec. 8, Rule
A: Unless the Court sets the case for oral argument, or
64)
requires the parties to submit memoranda, the case shall
The COMELEC and COA The appellant and the
be deemed submitted for decision upon the filing of the
shall be public appellee are the original
comments on the petition, or of such other pleadings or
respondents who are parties to the action, and
papers as may be required or allowed, or the expiration of
impleaded in the action the lower court or quasi-
the period to do so (Sec. 8, Rule 64).
judicial agency is not

165 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

impleaded Petition for certiorari is Petition for certiorari is to

to be filed before the SC be filed only with the Court
of Appeals

The filing of MNT or MR, Motion for reconsideration

if allowed under the is not required
procedural rules of the
Commission, shall
interrupt period fixed
The court is in the The court is in the exercise
exercise of its appellate of its appellate jurisdiction
jurisdiction and power of and power of review
review

CERTIORARI, PROHIBITION AND MANDAMUS (RULE 65)

DEFINITIONS AND DISTINCTIONS

CERTIORARI PROHIBITION MANDAMUS

Certiorari is an extraordinary writ
annulling or modifying the
proceedings of a tribunal, board or
officer exercising judicial or quasi-
judicial functions when such tribunal,
board or officer has acted without or
in excess of its or his jurisdiction, or
with grave abuse of discretion
amounting to lack or excess of
jurisdiction, there being no appeal or
any other plain, speedy and adequate
remedy in the ordinary course of law
(Sec. 1, Rule 65).
Directed against an entity or person
exercising judicial or quasi-judicial
function.
Entity or person is alleged to have
acted without jurisdiction; in excess of
jurisdiction; or with grave abuse of
discretion
Purpose is to annul or nullify a
proceeding.
This remedy is corrective to correct
usurpation of jurisdiction. (Sec 1, Rule
65, Rules of Court)
Extends to discretionary acts.
Prohibition is an extraordinary writ
commanding a tribunal, corporation,
board or person, whether exercising
judicial, quasi-judicial or ministerial
functions, to desist from further
proceedings when said proceedings
are without or in excess of its
jurisdiction, or with abuse of its
discretion, there being no appeal or
any other plain, speedy and adequate
remedy in the ordinary course of law
(Sec. 2, Rule 65).
Directed against an entity or person
exercising judicial, quasi-judicial or
ministerial function.
Entity or person is alleged to have
acted: without jurisdiction; in excess of
jurisdiction; or with grave abuse of
discretion
Purpose is to have respondent desist
from further proceeding.
This remedy is preventive and negative
to restrain or prevent usurpation of
jurisdiction. (Sec. 2, Rule 65, Rules of
Court).
Extends to discretionary and
ministerial acts.
Mandamus is an extraordinary writ
commanding a tribunal, corporation,
board or person, to do an act required
to be done:
(a) When he unlawfully neglects
the performance of an act which
the law specifically enjoins as a
duty, and there is no other plain,
speedy and adequate remedy in
the ordinary course of law; or
(b) When one unlawfully
excludes another from the use and
enjoyment of a right or office to
which the other is entitled (Sec. 3,
Rule 65).
Directed against an entity or person
exercising ministerial function.
Entity or person is alleged to have
unlawfully neglected a ministerial
duty; or excluded another from a right
or office.
Purpose is for respondent to:
1. Do the act required; and
2. To pay damage.
This remedy is affirmative or positive
(if the performance of a duty is
ordered) or it is negative (if a person is
ordered to desist from excluding
another from a right or office). (Sec. 3,
Rule 65, Rules of Court).
Only for ministerial acts.

Q: Distinguish Rule 45, Rule 64 and Rule 65 (1991, 1998, 1999 Bar Question)

A:
Appeal by Certiorari(Rule 45)
GR: Petition is based only on questions of
law.
XPN: questions of facts may be allowed in
cases of writ of habeas data,
Review of Judgments, Final
Orders or Resolutions of
COMELEC and COA (Rule 64)
Petition is based on questions of
law.
Petition for Certiorari(Rule 65)
Petition is based on questions of
jurisdiction, that is, whether the lower
court acted without jurisdiction or in
excess of jurisdiction or with grave abuse

UNIVERSITY OF SANTO TOMAS 166

2013 GOLDEN NOTES

Writ of amparo,
Writ of kalikasan
It is a mode of appeal.
Involves the review of the judgment final
orders or resolutions of the CA,
Sandiganbayan, CTA, RTC or other courts on
the merits
Filed within 15 days from notice of
judgment, final order or resolution appealed
from.
Stays the judgment or order appealed from
The appellant and the appellee are the
original parties to the action, and the lower
court or quasi-judicial agency is not
impleaded.
Motion for reconsideration is not required.
The court is in the exercise of its appellate
jurisdiction and power of review.
Filed with the SC.
CIVIL PROCEDURE
It is a mode of review but the
petition used is Rule 65.
Involves review of judgments,
final orders or resolutions of
COMELEC and COA.
Note: CSC judgments, final orders or
resolutions are governed by Rule 43
Filed within 30 days from notice
of judgment, final order or
resolution sought to be
reviewed.
Does not stay the execution
unless SC shall direct otherwise
upon such terms as it may deem
just.
The COMELEC and COA shall be
public respondents who are
impleaded in the action.
The filing of MNT or MR, if
allowed under the procedural
rules of the Commission, shall
interrupt period fixed.
The court is in the exercise of its
appellate jurisdiction and power
of review.
Filed with the SC.
of discretion.
It is a mode of review.
May be directed against an interlocutory
order of a court or where there is no
appeal or any other plain, speedy or
adequate remedy.
Filed not later than 60 days from notice of
judgment, order or resolution appealed
from.
Unless a writ of preliminary injunction or
temporary restraining order is issued, it
does not stay the challenged proceeding
The judge, court, quasi-judicial agency,
tribunal, corporation, board, officer or
person shall be public respondents who
are impleaded in the action.
Motion for reconsideration or for new
trial is required.
If a motion for reconsideration or new
trial is filed, another 60 days shall be given
to the petitioner (A.M. No. 02-03-SC)
Court exercises original jurisdiction.
Filed with the RTC, CA, Sandiganbayan or
COMELEC.

Q: What are instances wherein the petitions for certiorari, XPN: When it is Habeas Data and Writ of
mandamus and prohibition are not available? necessary to delve into Kalikasan, it may involve both
factual issues in order to questions of law and facts.
A: resolve allegations of
1. Rule on Summary Procedure as to interlocutory order grave abuse of
issued by the lower court [Sec. 19(g), Rules on discretion as a ground
Summary Procedure]; (Balba vs. Peak
2. Writ of Amparo against any interlocutory order (Sec. Development, INC., et.,
11(l), Rule on Writ of Amparo) GR 148288, Aug. 12,
3. Petition for writ of Habeas data against any 2005; Regalado,
interlocutory order (Sec. 13(l), A.M. No. 08-1-16) Remedial Law
4. Small claims cases against interlocutory order issued Compendium Vol. I, p.
th
by the lower court (Sec. 14(g) of A.M. No. 08-8-7-SC) 792, 10 ed.)
Directed against an Involves the review of the
CERTIORARI DISTRINGUISHED FROM APPEAL BY interlocutory order of a judgment, final orders or
CERTIORARI court or where there is resolutions of the CA,
no appeal or any other Sandiganbayan, CTA, RTC or
Rule 65 (certiorari) Rule 45 (appeal by certiorari) plain, speedy or other courts
A special civil action Mode of Appeal adequate remedy
that is an original and Filed not later than 60 Filed within 15 days from
independent action and days from notice of notice of judgment, final order
not a mode of appeal. judgment, order or or resolution appealed from
May be directed against Seeks to review final resolution sought to be
interlocutory order or judgments or final orders assailed.
matters where no Unless a writ of Stays the judgment or order
appeal may be taken preliminary injunction appealed from
from or temporary
GR: Involves questions GR: Involves question of law restraining order is
of jurisdiction XPN: In Writ of Amparo, issued, it does not stay

167 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

the challenged jurisdiction its appellate jurisdiction and

proceeding power of review.
The judge, court, quasi- The appellant and the appellee Filed with the RTC, CA, Filed with the SC
judicial agency, tribunal, are the original parties to the Sandiganbayan or
corporation, board, action, and the lower court or COMELEC
officer or person shall quasi-judicial agency is not
be public respondents impleaded
who are impleaded in
the action
As a general rule motion Motion for reconsideration is
for reconsideration or not required
for new trial is required.
If a motion for
reconsideration or new
trial is filed, another 60
days shall be given to
the petitioner (A.M. No.
02-03-SC)
Court exercises original The court is in the exercise of

PROHIBITION AND MANDAMUS DISTINGUISHED FROM INJUNCTION

Q: Distinguish prohibition and mandamus from injunction

A:
Prohibition
Prohibition is an extraordinary writ
commanding a tribunal, corporation,
board or person, whether exercising
judicial, quasi-judicial or ministerial
functions, to desist from further
proceedings when said proceedings
are without or in excess of its
jurisdiction, or with abuse of its
discretion, there being no appeal or
any other plain, speedy and adequate
remedy in the ordinary course of law
(Sec. 2, Rule 65).
Special civil action
To prevent an encroachment, excess,
usurpation or assumption of
jurisdiction;
May be directed against entities
exercising judicial or quasi-judicial, or
ministerial functions
Extends to discretionary and
ministerial functions
Always the main action
May be brought in the Supreme Court,
Court of Appeals, Sandiganbayan, or in
the Regional Trial Court which has
jurisdiction over the territorial area
where respondent resides.
Mandamus
Mandamus is an extraordinary writ
commanding a tribunal, corporation,
board or person, to do an act required
to be done:
(a) When he unlawfully neglects the
performance of an act which the
law specifically enjoins as a duty,
and there is no other plain,
speedy and adequate remedy in
the ordinary course of law; or
(b) When one unlawfully excludes
another from the use and
enjoyment of a right or office to
which the other is entitled (Sec. 3,
Rule 65).
Special civil action
To compel the performance of a
ministerial and legal duty;
May be directed against judicial and
non-judicial entities
Extends only to ministerial functions
Always the main action
May be brought in the Supreme Court,
Court of Appeals, Sandiganbayan, or in
the Regional Trial Court which has
jurisdiction over the territorial area
where respondent resides.
Injunction
Main action for injunction seeks to
enjoin the defendant from the
commission or continuance of a
specific act, or to compel a particular
act in violation of the rights of the
applicant. Preliminary injunction is a
provisional remedy to preserve the
status quo and prevent future wrongs
in order to preserve and protect
certain interests or rights during the
pendency of an action.
Ordinary civil action
For the defendant either to refrain
from an act or to perform not
necessarily a legal and ministerial
duty;
Directed against a party
Does not necessarily extend to
ministerial, discretionary or legal
functions;
May be the main action or just a
provisional remedy
May be brought in the Regional Trial
Court which has jurisdiction over the
territorial area where respondent
resides.

REQUISITES

UNIVERSITY OF SANTO TOMAS 168

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Q: What are the requisites of a valid certiorari?
A:
1. The petition is directed against a tribunal, board or
officer exercising judicial or quasi-judicial functions;
2. Such tribunal, board or officer has acted without or in
excess of jurisdiction or with grave abuse of discretion;
and
3. There is neither appeal nor any plain, speedy and
adequate remedy in the ordinary course of law for the
purpose of annulling or modifying the proceeding.
There must be capricious, arbitrary and whimsical
exercise of power for it to prosper (Sec. 1 Rule 65;
Aggabao vs. Comelec, 499 SCRA 400, January 26, 2005;
Riano, Civil Procedure: A Restatement for the Bar, pp.
636-637, 2009 ed.).
Q: What are the requisites of a valid prohibition?
A:
1. There must be a controversy;
2. Respondent is exercising judicial, quasi-judicial
functions or ministerial functions;
3. Respondents acted without or in excess of its
jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction; and
4. There must be no appeal or other plain, speedy and
adequate remedy (Sec. 2, Rule 65).
Q: What are the requisites of a valid mandamus?
A:
1. There must be a clear legal right or duty;
2. The act to be performed must be within the powers of
the respondent to perform;
3. The respondent must be exercising a ministerial duty;
4. The duty or act to be performed must be existing (a
correlative right will be denied if not performed by the
respondent); and
5. There is no appeal or other plain, speedy and
adequate remedy in the ordinary course of law (Sec. 3,
Rule 65).
WHEN PETITION FOR CERTIORARI, PROHIBITION AND
MANDAMUS IS PROPER
Certiorari
Q: What is certiorari?
A: It is a writ issued by a superior court to an inferior court,
board or officer exercising judicial or quasi-judicial
functions whereby the record of a particular case is ordered
to be elevated for review and correction in matters of law.
Note: It is commenced by a verified petition accompanied by a
certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping
(Sec. 1, Rule 65).
Q: What is the nature and purpose of the remedy?
169
A: It is a special civil action. It is not a mode of appeal. It is
an original and independent from principal action which
resulted in the rendition of the judgment or order
complained of (Rule 65; Abedes vs. Court of Appeals, 536
SCRA 268; Camutin vs. Sps. Patente, GR No. 181642, Jan.
29, 2009). Certiorari is a remedy for the correction of errors
in jurisdiction, not errors of judgment. Since issue is
jurisdiction, an original action for certiorari may be directed
against an interlocutory order of the lower court prior to an
appeal from judgment (New Frontier Sugar Corporation vs.
RTC of Iloilo, GR No. 165001, Jan. 31, 2007).
Q: What are the grounds for the filing of a petition for
certiorari?
A: That a tribunal, board or officer exercising judicial or
quasi-judicial functions acted:
1. Without or in excess of jurisdiction
2. In grave abuse of discretion amounting to lack or
excess of jurisdiction
Q: Define the following:
A:
1. Judicial function is where the tribunal or person has
the power to determine what the law is, what the
rights of the parties are, and undertakes to determine
these questions and adjudicate upon the rights of the
parties.
2. Without jurisdiction is where the respondent does
not have the legal power to determine the case.
3. Excess of jurisdiction is where the respondent, being
clothed with the power to determine the case,
oversteps his authority as determined by law.
4. Grave abuse of discretion the abuse must be grave as
where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal
hostility; or, it must be so patent and gross as to
amount to an evasion of positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in
contemplation of law (Planters Products, Inc. v. Court
of Appeals, 193 SCRA 563).
5. Plain, speedy and adequate remedy is one which
promptly relieves the petitioner from the injurious
effects of the judgment and the acts of the lower court
or agency (Regalado, Remedial Law Compendium, Vol.
th
I, p. 795, 10 ed.)
Q: May a question of fact be raised in an action for
certiorari?
A: GR: No. Only established or admitted facts can be
considered (Rubio v. Reyes, G.R. No. 24581, May 27, 1968).
XPN: When it is necessary to delve into factual issues in
order to resolve allegations of grave abuse of discretion as
a ground for the special civil action of certiorari and
prohibition (Balba vs. Peak Development, INC., et. al., GR
148288, Aug. 12, 2005, Regalado, Remedial Law
th
Compendium, Vol. I, p. 792, 10 ed.).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: In original actions for certiorari under Rule 65, the finding of Q: Pagayanan, an employee of the Commission on Audit in
facts of the CA is not conclusive or binding upon the SC unlike the the ARMM, was charged by CSCRO (Civil Service Regional
general rule in appeals by certiorari under Rule 45 (Medran v. CA, Office) No. XII with dishonesty, grave misconduct, and
G.R. No. L-1350, Mar. 26, 1949).
conduct prejudicial to the best interest of the service.
CSCRO found Pagayanan guilty. Hence, Pagayanan filed a
Q: Explain each mode of certiorari.
Motion for Reconsideration but was denied. Thus, she
a. As a mode of appeal from the RTC or the CA to
appealed to the CSC but the latter affirmed the findings of
the SC.
CSCRO. Pagayanan filed a motion for reconsideration but
b. As a special civil action from the RTC or the CA to
was denied. Thus, Pagayanan filed a petition for certiorari
the SC.
under Rule 65 before the CA. CA dismissed the petition for
c. As a mode of review of the decisions of the
being a wrong mode of appeal. Is a petition under Rule 65
National Labor Relations Commission and the
the proper remedy?
Constitutional Commissions. (2006 Bar Question)
A: No. Under the Uniform Rules on Administrative Cases in
A:
the CSC, a party may elevate a decision of CSC before the
a) A petition for review on certiorari under Rule 45 of the
Court of Appeals by way of a petition for review under Rule
Rules of Court is a mode of appeal on pure questions
43. Hence, Pagayanan had 15 days after receipt of the
of law as a general rule from a judgment or final order
order denying her MR to file a petition for review with the
or resolution of the CA or the RTC to the SC.
CA. However, Pagayanan filed a petition for certiorari, 22
b) A special civil action for certiorari under Rule 65 of the
days after receipt of the order.
Rules of Court is an original action from the RTC or the
CA to the SC against any tribunal, board or officer
A special civil action for certiorari is not a substitute for a
exercising judicial or quasi-judicial functions raising the
lost or lapsed remedy of appeal. They are mutually
issue of lack or excess of jurisdiction or grave abuse of
exclusive remedies. A special civil action for certiorari under
discretion amounting to lack or excess of jurisdiction,
Rule 65 lies only when there is no appeal or plain, speedy
there being no appeal or any plain, speedy and
and adequate remedy in the ordinary course of law. In this
adequate remedy in the ordinary course of law.
case, Pagayanan failed to provide any justification for her
c) The mode of review of the decision of the NLRC is via a
resort to a special civil action for certiorari, when the
special civil action for certiorari under Rule 65, but
remedy of appeal by petition for review was clearly
pursuant to the hierarchy of the courts enunciated in
available (Pagayanan R. Hadji-Sirad v. Civil Service
the case of St. Martins Funeral Homes v. NLRC (G.R.
Commission, G.R. No. 182267, Aug. 28, 2009).
No. 130866 September 16, 1998), the same should be
filed in the CA. The mode of review of the decision of
Q: Jericho was declared in default in the RTC for his failure
the COMELEC and the Commission on Audit, as
to file an answer to a complaint for a sum of money.
provided under Rule 64 of the Rules of Court, is a
Judgment by default was rendered against Jericho. Jericho
special civil action for certiorari under Rule 65.
filed a verified motion to lift the order of default and to
Decisions of the Civil Service Commission, however,
set aside the judgment. In his motion, Jericho alleged that,
are reviewable by petition for review filed with the CA
immediately upon receipt of the summons, he saw the
under Rule 43 of the Rules of Court.
plaintiff and confronted him with his receipt evidencing
his payment and that the plaintiff assured him that he
Q: Are the remedies of appeal and certiorari exclusive?
would instruct his lawyer to withdraw the complaint.
Jericho's motion was denied because it was not
A: GR: Where the proper remedy is appeal, the action for
accompanied by an affidavit of merit. Jericho filed a
certiorari will not be entertained. Certiorari is not a remedy
special civil action for certiorari under Rule 65 challenging
for errors of judgment. Errors of judgment are correctible
the denial order.
by appeal; errors of jurisdiction are reviewable by certiorari.
1. Is certiorari under Rule 65 the proper remedy?
Why?
XPN: A petition for certiorari may be allowed despite the
2. Did the trial court abuse its discretion or act
availability of the remedy of appeal when:
without or in excess of its jurisdiction in denying
1. Appeal does not constitute a speedy and adequate
Jericho's motion to lift the order of default and
remedy;
to set aside the default judgment? Why? (2002
2. Orders were issued either in excess of or without
Bar Question)
jurisdiction;
3. For certain special considerations as for public policy
A:
or public welfare;
1. No. Under ordinary circumstances, the proper remedy
4. Order is a patent nullity;
of a party wrongly declared in default is either to
5. Decision in the certiorari case will avoid future
appeal from the judgment by default or to file a
litigation; or
petition for relief from judgment (Jao Inc. v. CA, G.R.
6. In criminal actions, the court rejects rebuttal evidence
No. 93233, Dec. 19, 1995). A special civil action for
for the prosecution as, in case of acquittal, there could
certiorari is available only when no appeal or any plain,
be no remedy (Regalado, Remedial Law Compendium,
th speedy, and adequate remedy in the ordinary course
Vol. I, p. 796, 10 ed.).
of law is available.

UNIVERSITY OF SANTO TOMAS 170

2013 GOLDEN NOTES
 CIVIL PROCEDURE
2. Yes. The trial court gravely abused its discretion or
acted without or in excess of jurisdiction in denying
the defendants motion because it was not
accompanied by a separate affidavit of merit. In his
verified motion to lift the order of default and to set
aside the judgment, the defendant alleged that
immediately upon receipt of the summons, he saw the
plaintiff and confronted him with his receipt showing
payment and that the plaintiff assured him that he
would instruct his lawyer to withdraw the complaint.
Since the good defense of the defendant was already
incorporated in the verified motion, there was no need
for a separate affidavit of merit (Mago v. CA, G.R. No.
115624, Feb. 25, 1999).
Q: Is the rule on filing of motion reconsideration before
recourse to certiorari absolute?
A: GR: Petition for certiorari will not be entertained unless
the public respondent has been given first the opportunity
through a motion for reconsideration to correct the error
being imputed to him.
Ratio: It is intended to afford the public respondent an
opportunity to correct any actual or fancied error
attributed to it by way of re-examination of the legal
and factual aspects of the case (Chris Garment
Corporation vs. Sto. Tomas, GR No 167426, January 12,
2009).
XPNs: A prior motion for reconsideration is not necessary
to entertain a petition for certiorari where:
a. the order is a patent nullity, as where the court a
quo has no jurisdiction;
b. the questions raised in the certiorari proceedings
have been duly raised and passed upon by the
lower court, or are the same as those raised and
passed upon in the lower court;
c. there is an urgent necessity for the resolution of
the question, and any further delay would
prejudice the interests of the Government or of
the petitioner;
d. the subject matter of the action is perishable;
e. under the circumstances, a motion for
reconsideration would be useless;
f. the petitioner was deprived of due process and
there is extreme urgency for relief;
g. in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial
court is improbable;
h. the proceedings in the lower court are a nullity
for lack of due process;
i. the proceedings were ex parte or in which the
petitioner had no opportunity to object; and
j. the issue raised is one purely of law or where
public interest is involved (Regalado, Remedial
th
Law Compendium, Vol. I, p. 789, 10 ed.).
Q: May the offended party in a criminal case initiate the
filing of an action for certiorari?
A: Yes. An offended party in a criminal case has sufficient
personality to file a special civil action for certiorari, in
proper cases, even without the imprimatur of the State. In
so doing, the complaint should not bring the action in the
name of the People of the Philippines. The action may be
prosecuted in the name of the complainant (Perez v.
Hagonoy Rural Bank, Inc., G.R. No. 126210, Mar. 9, 2000).
Q: Will the filing of a petition for certiorari interrupt the
course of the principal case?
A: The filing of a petition for certiorari against the lower
court or tribunal or any other public respondent does not
interrupt the course of the principal case. It is necessary
therefore, to avail of either a temporary restraining order
or a writ of preliminary injunction to be issued by a higher
court against the public respondent so the latter may,
during the pendency of the petition, be enjoined from
further proceeding with the case (Sec. 7, Rule 65).
Prohibition
Q: What is prohibition?
A: It is a remedy to prevent inferior courts, corporations,
boards or persons from usurping or exercising a jurisdiction
or power which they have not been vested by law.
Note: It is commenced by a verified petition accompanied by a
certified true copy of the judgment, order or resolution subject
thereof, copies of all pleadings and documents relevant and
pertinent thereto, and a sworn certification of non-forum shopping
(Sec. 2, Rule 65).
Q: When is prohibition issued?
A: GR: Prohibition does not ordinarily lie to restrain an act
which is already fait accompli.
XPN: It will lie to prevent the creation of a new province by
those in the corridors of power who could avoid judicial
intervention and review by merely speedily and stealthily
completing the commission of such illegality (Tan v.
COMELEC, G.R. No. 73155, July 11, 1986).
Note: Prohibition, and not mandamus, is the remedy where a
motion to dismiss is wrongfully denied (Enriquez v. Macadaeg, G.R.
No. L-2422, Sept. 30, 1949).
Q: What is the function of writ of prohibition?
A: It is a preventive remedy. Its function is to restrain the
doing of some act about to be done. It is not intended to
provide a remedy for acts already accomplished. If the thing
be already done, the writ of prohibition cannot undo it
(Agustin v. De la Fuente, G.R. No. L-2345, Aug. 31, 1949).
Q: Is exhaustion of administrative remedy necessary in
order for an action for prohibition to lie?
A: Yes. In order for prohibition to lie against an executive
officer, the petitioner must first exhaust all administrative
remedies, as prohibition is available only when there are no
171 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
other plain, speedy and adequate remedies in the ordinary It is tantamount to removal without cause and is contrary
course of law (Cabedo, et. al vs. Dir. Of Lands, et. al. L- to fundamental guarantee on non-removal except for
12777, May 23, 1961; Regalado, Remedial Law cause. Considering that Richard continued to occupy the
th
Compendium, Vol. I, p. 801, 10 ed.). position and exercise his functions therein, the proper
remedy is quo warranto and not mandamus.
Q: Distinguish Prohibition from Injunction
Q: Will mandamus issue despite the availability of
A: administrative remedies?
PROHIBITION INJUNCTION
Directed to court itself, Directed only to the A: GR: No. Mandamus will not issue when administrative
commanding it to cease party litigants, remedies are still available.
from the exercise of a without in any
jurisdiction to which it has manner interfering XPNs:
no legal claim. (Esquivel v with the court. (Farin 1. If the party is in estoppel (Vda. de Tan v. Veterans
Ombudsman,GR No v De Los Angeles, Backpay Commission, G.R. No. L-12944, Mar. 30,
137237, Sept. 17, 2002) 47519R, Aug. 20, 1959); or
1971) 2. Only questions of law are raised. (Madrigal v. Lecaroz,
Mandamus G.R. No. L-46218, Oct. 23, 1990)

Q: What is mandamus? Q: May mandamus be used to compel a discretionary

duty?
A: It is a writ issued in the name of the State, to an inferior
tribunal, corporation, board or person, commanding the A: GR: Mandamus is only applicable to a ministerial duty.
performance of an act which the law enjoins as a duty However, mandamus can be used to the extent of requiring
resulting from an office, trust or station. the performance of a discretionary duty to act but not to
require performance of such duty in a particular manner.
Note: It is commenced by a verified petition accompanied by a
sworn certification of non-forum shopping (Sec. 3, Rule 65). XPN:
1. There has been gross abuse of discretion;
Q: What are the grounds for the issuance of mandamus? 2. Manifest injustice; or
3. Palpable excess of authority (Kant Wong v. PCGG, G.R.
A: No. 79484, Dec. 7, 1987).
1. When any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting Q: Distinguish discretionary act from ministerial act
from an office, trust or station; or
2. When any tribunal, corporation, board, officer or A:
person unlawfully excludes another from the use and Discretionary Ministerial Act
enjoyment of a right or office to which the other is Act
entitled (Sec. 3, Rule 65). Requires the So clear and specific as to leave
exercise of no room for the exercise of
Note: Generally, mandamus will not lie to enforce purely private judgment. discretion in its performance.
contract rights, and will not lie against an individual unless some Law imposes a An act or duty in which an
obligation in the nature of a public or quasi-public duty is imposed.
duty and gives a officer or tribunal performs in a
To preserve its prerogative character, mandamus is not used for
the redress of private wrongs, but only in matters relating to the right to decide given state of facts, in a
public (Uy Kiao Eng vs. Nixon Lee, GR No. 176831, Jan. 15, 2010). how or when prescribed manner, in
the duty shall be obedience to the mandate of
Q: Albert was appointed Election Registrar of the performed. legal authority, without regard
Municipality of Sevilla supposedly to replace the to the exercise of his own
respondent Election Registrar Richard who was judgment upon the propriety or
transferred to another municipality without his consent impropriety of act done
and who refused to accept his aforesaid transfer, as in fact (Symaco v. Aquino, G.R. No. L-
he continued to occupy his aforesaid position and exercise 14535, Jan. 30, 1960).
his functions thereto. Albert then filed a petition for
mandamus against Richard but the trial court dismissed Q: Roldan was charged with illegal possession of shabu
Albert's petition contending that quo warranto is the before the RTC. Although bail was allowable under his
proper remedy. Is the court correct in its ruling? Why? indictment, he could not afford to post bail, and so he
(2001 Bar Question) remained in detention at the City Jail. For various reasons,
the arraignment of Roldan was postponed 19 times over a
A: Yes. Mandamus will not lie. This remedy applies only period of 2 years. Twice during that period, Roldans
where petitioners right is founded clearly in law, not when counsel filed motions to dismiss, invoking the right of the
it is doubtful. Richard was transferred without his consent. accused to a speedy trial. Both motions were denied by

UNIVERSITY OF SANTO TOMAS 172

2013 GOLDEN NOTES
 CIVIL PROCEDURE
the RTC. Can Roldan file a petition for mandamus? Reason Petition for quo Available when one is
briefly. (2007 Bar Question) warranto is directed unlawfully excluded
against the person who from the use or
A: Yes. Roldan can file a petition for mandamus, invoking actually holds the said enjoyment of an office.
the right to a speedy trial. Mandamus is a proper recourse office (Burguete v. Complaint for
for citizens who seek to enforce a public right and to Mayor, G.R. No. L-6538, mandamus is against
compel the performance of a public duty, most especially May 10, 1954). the persons who
when the public right involved is mandated by the exclude the plaintiff
Constitution. Besides, it has long been established in this from the office in
jurisdiction that the writ of mandamus is available to the question (Riano, Civil
accused to compel a dismissal of the case. Here, the Procedure: A
arraignment of Roldan was postponed 19 times over a Restatement for the
period of 2 years. Hence, the petition for mandamus is Bar, pp. 667, 2009 ed.)
proper in this case (Symaco v. Aquino, G.R. No. L-14535,
Jan. 30, 1960). Note: Mandamus may be combined with quo warranto.

Q: May the CA award damages in mandamus

proceedings?
Q: Distinguish mandamus from Injunction
A: Yes. The CA, in resolving a petition for mandamus, is
authorized to award civil damages in the same petition A:
(Vital-Gozon v. CA, G.R. No. 101428, Aug. 3 1992). Mandamus Injunction
Preventive; To prevent
Remedial; To perform
Q: Fotokina filed with the RTC a petition for mandamus to an act to maintain status
positive legal duty. It is
compel the COMELEC to implement a contract it had with quo between parties. It
a special civil action
the former regarding the automation of the elections. The is an ordinary civil action
Office of the Solicitor General (OSG), representing To set in motion and to
COMELEC Chairman Go, opposed the petition on the compel action To restrain motion or to
ground that mandamus does not lie to enforce contractual (active);Directed enforce inaction
obligations. During the proceedings, the majority against a tribunal, (conservative);directed
Commissioners filed a manifestation that Chairman Go corporation board, or against a litigant
was not authorized by the COMELEC En Banc to oppose officer
the petition. Motion to dismiss Additional ground for
1. May the OSG represent Chairman Go before the RTC Rules 16 and 17 MTD Sec. 6, Rule 58
notwithstanding that his position is contrary to that
of the majority? INJUNCTIVE RELIEF
2. Is a petition for mandamus an appropriate remedy to
enforce contractual obligations? (2006 Bar Question) Q: When is injunctive relief proper?

A: A: The court in which the petition is filed may issue orders

1. Yes, the OSG can represent Chairman Go before the expediting the proceedings, and it may also grant a
RTC. The OSG is an independent office. Its hands are temporary restraining order or a writ of preliminary
not shackled to the cause of its client agency. In the injunction for the preservation of the rights of the parties
discharge of its tasks, the primordial concern of the pending such proceedings. (Sec. 7, Rule 65) The public
OSG is to see to it that the best interest of the respondent shall proceed with the principal case within ten
government is upheld. (10) days from the filing of a petition for certiorari with a
higher court or tribunal, absent a Temporary Restraining
2. No, the COMELEC cannot be compelled by a writ of Order (TRO) or a Writ of Preliminary Injunction, or upon its
mandamus to discharge a duty that involves the expiration. (AM 07-7-12-SC, Dec. 12, 2007).
exercise of judgment and discretion, especially where
disbursement of public funds is concerned (COMELEC Q: In an action for specific performance in the MTC,
v. Quijano-Padilla, G.R. No. 151992, Sept. 18, 2002). defendant Sarah filed a motion to dismiss the action
based on lack of jurisdiction over the subject matter.
Q: Distinguish quo warranto from mandamus Sarahs motion to dismiss was denied. Sarah filed a
petition for certiorari with the RTC. Vince then filed with
A: the MTC a motion to declare Sarah in default. The motion
Quo Warranto Mandamus was opposed by Sarah on the ground that his petition for
Designed to try the Does not lie to try certiorari was still pending. Resolve the motion to declare
right or title to the disputed titles but only the defendant in default. (2003 Bar Question)
office, if the right to the to enforce legal duties.
office itself is disputed. A: The court can declare Sarah in default because she did
not obtain a writ of preliminary injunction or a temporary
restraining order from the RTC prohibiting the judge from
173 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
proceeding in the case during the pendency of the petition
for certiorari (Diaz v. Diaz, G.R. No. 135885, Apr. 28, 2000).
EXCEPTIONS TO FILING OF MOTION FOR
RECONSIDERATION BEFORE FILING PETITION
Q: Is a motion for reconsideration (MR) required before a
party may resort to the remedies of certiorari, prohibition
and mandamus? (1989, 1996 Bar Question)
A: GR: Yes. It is a form of a plain, speedy, and adequate
remedy which gives courts the opportunity to correct itself.
XPNs:
1. If the assailed judgment/order is a patent nullity;
2. When there is urgent necessity for the resolution of
the question;
3. If the question raised in the certiorari proceeding have
been duly raised and passed upon by the lower court
or are the same as those raised and passed upon in the
lower court;
4. If the issue raised is one purely of law or where public
interest is involved;
5. Petitioner is deprived of due process
6. MR would be useless;
7. In criminal case, relief from an order of arrest is urgent
and the granting of such relief by the trial court is
improbable;
8. The proceeding in the lower court is a nullity for lack of
due process; and
9. The proceeding was ex parte or in which the petitioner
had no opportunity to object.
RELIEFS PETITIONER IS ENTITLED TO
Q: What are the reliefs a petitioner is entitled to with this
action?
A: The primary relief will be the annulment or modification
of the judgment, order, or resolution or proceeding subject
of the petition. It may also include such other Incidental
reliefs as law and justice may require (Sec. 1, Rule 65). The
court may also award damages in its judgment and the
execution of the award for damages or costs shall follow
the procedure in sec 1 of rule 39 (Sec. 9, Rule 65).
Q: What should the public respondent do if no temporary
restraining order or writ of preliminary injunction was
issued by the court hearing the petition for certiorari,
prohibition or mandamus?
A: The public respondent shall proceed with the principal
case within 10 days from the filing of a petition for
certiorari with a higher court or tribunal, absent a
temporary restraining order or a preliminary injunction, or
upon its expiration. Failure of the public respondent to
proceed with the principal case may be a ground for an
administrative charge (Sec. 7 as amended by A.M. No. 07-7-
12-SC)
. mandamus be filed?
ACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the rule on acts or omissions of the MTC or RTC
regarding election cases?
A: In election cases involving an act or an omission of a
municipal or a regional trial court, the petition shall be filed
exclusively with the Commission on Elections, in aid of its
appellate jurisdiction (Sec.4, Rule 65, As amended by AM
No. 07-7-12-SC, Dec. 12, 2007).
WHERE AND WHEN TO FILE
Q: When and where to file petition for certiorari,
prohibition or mandamus?
A:
1. Supreme Court- Subject to the doctrine of hierarchy of
courts and only when compelling reasons exist for not
filing the same with the lower courts.
2. Court of Appeals only- If the petition involves an act or
an omission of a quasi-judicial agency, unless otherwise
provided by law or rules.
3. Court of Appeals and Sandiganbayan- Whether or not in
aid of appellate jurisdiction.
4. Regional Trial Court- If the petition relates to an act or
an omission of an MTC, corporation, board, officer or
person.
5. COMELEC- In election cases involving an act or an
omission of an MTC or RTC
Q: May a petition for certiorari, prohibition or mandamus
against lower courts be filed directly with the SC? If not,
where should it be filed?
A: No. By virtue of the amendment introduced by A.M. No.
07-7-12-SC to Sec. 4, Rule 65, a petition for certiorari,
prohibition or mandamus may not be filed directly with the
SC anymore.
Note: If the petition relates to an act or an omission of a municipal
trial court or of a corporation, a board, an officer or a person, it
shall be filed with the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Supreme Court. It may
also be filed with the Court of Appeals or with the Sandiganbayan,
whether or not the same is in aid of the courts appellate
jurisdiction. If the petition involves an act or an omission of a quasi-
judicial agency, unless otherwise provided by law or these rules,
the petition shall be filed with and be cognizable only by the Court
of Appeals (Sec. 4, as amended by A.M. No. 07-7-12-SC).
Q: When should petition for certiorari, prohibition or
A: It shall be filed not later than sixty (60) days from notice
of the judgment, order or resolution. In case a motion for
174
 CIVIL PROCEDURE
reconsideration or new trial is timely filed, whether such
motion is required or not, the petition shall be filed not
later than sixty (60) days counted from the notice of the
denial of the motion (Sec. 4, as amended by A.M. No. 07-7-
12-SC).
Q: What are the effects of filing a petition for certiorari,
prohibition or mandamus to the principal case?
A: It does not:
1. Interrupt the course of the principal action;
2. Affect the running of the reglementary periods
involved in the proceedings (Fuentes v.
Sandiganbayan, G.R. No. 164664, July 20, 2006); and
3. Stay the execution of judgment, unless a temporary
restraining order or writ of preliminary injunction has
been issued.
Q: When does the court acquire jurisdiction over the
person of the respondent in original actions for certiorari,
prohibition and mandamus?
A:
1. If the action is filed with the RTC Follow the rules on
ordinary civil actions. Jurisdiction is acquired by the
service of summons to the respondent or by his
voluntary appearance in court.
2. If the action is filed with the CA or the SC The court
acquires jurisdiction over the respondents with the
service on them of its orders indicating its initial action
on the petition or by voluntary submission to such
jurisdiction
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION
Q: What is the effect of a petition for certiorari,
prohibition or mandamus which is patently without merit,
prosecuted manifestly for delay, or raises questions which
are too unsubstantial to require consideration?
A: The court may dismiss the petition. In such event, the
court may award in favor of the respondent treble costs
solidarily against the petitioner and counsel, in addition to
subjecting counsel to administrative sanctions under Rules
139 and 139-B.
The Court may impose motu proprio, based on res ipsa
loquitur, other disciplinary sanctions or measures on erring
lawyers for patently dilatory and unmeritorious petitions
for certiorari (Sec. 8, as amended by A.M. No. 07-7-12-SC).
Q: James mortgaged his property to Peter. James failed to
pay his obligation and Peter filed an action for foreclosure
of mortgage. After trial, the court issued an order granting
Peter's prayer for foreclosure of mortgage and ordering
James to pay Peter the full amount of the mortgage debt
not later than 120 days from date of receipt of the order.
James received the order on August 10, 1999. No other
proceeding took place thereafter. On December 20, 1999,
James tendered the full amount adjudged by the court to
Peter but the latter refused to accept it on the ground that
the amount was tendered beyond the 120-day period
granted by the court. James filed a motion in the same
175
court praying that Peter be directed to receive the amount
tendered by him on the ground that the order does not
comply with the provisions of Sec. 2, Rule 68 of the Rules
of Court which gives James 120 days from entry of
judgment, and not from date of receipt of the order. The
court denied his motion on the ground that the order had
already become final and can no longer be amended to
conform with Sec. 2, Rule 68. Aggrieved, James files a
petition for certiorari against the court and Peter. Will the
petition for certiorari prosper? Explain. (2000 Bar
Question)
A: Yes. The court erred in issuing the order. The court
should have rendered a judgment which is appealable.
Since no appeal was taken, the judgment became final on
August 25, 1999 which is the date of the entry of judgment.
Hence, James had up to December 24, 1999 within which to
pay the amount due. The court gravely abused its discretion
amounting to lack or excess of jurisdiction in denying
James motion praying that Peter be directed to receive the
amount tendered.
QUO WARRANTO (RULE 66)
Q: What is quo warranto?
A: It is a proceeding or writ issued by the court to
determine the right to use an office, position or franchise
and to oust the person holding or exercising such office,
position or franchise if his right is unfounded or if a person
performed acts considered as grounds for forfeiture of said
exercise of position, office or franchise.
Note: It is commenced by a verified petition brought in the name
of the Republic of the Philippines or in the name of the person
claiming to be entitled to a public office or position usurped or
unlawfully held or exercised by another (Sec. 1, Rule 66).
Q: What is the nature and purpose of quo warranto?
A: It literally means by what authority and the object is to
determine the right of a person to the use or exercise of a
franchise or office and to oust the holder from its
enjoyment, if his claim is not well-founded, or if he has
forfeited his right to enjoy the office (Tecson v. Comelec,
424 SCRA 227).
DISTINGUISH FROM QUO WARRANTO IN OMNIBUS
ELECTION CODE
A:
Quo Warranto Under Quo Warranto In Electoral
Rule 66 Proceedings
Issue is legality of the Issue is eligibility of the
occupancy of the office by person elected (Riano, Civil
virtue of a legal Procedure: A Restatement
appointment (Riano, Civil for the Bar, pp.
Procedure: A Restatement 672, 2009 ed.).
for the Bar, pp.
672, 2009 ed.).
Grounds: usurpation, Grounds: ineligibility or
forfeiture, or illegal disqualification to hold the
association (Sec 1, Rule office (sec 253, Omnibus
66, Rules of Court) Election Code)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Presupposes that the
respondent is already
actually holding office and
action must be
commenced within 1 year
from cause of ouster or
from the time the right of
petitioner to hold office
arose.
Petitioner is person
entitled to office (Riano,
Civil Procedure: A
Restatement for the Bar,
pp.
672, 2009 ed.).
Person adjudged entitled
to the office may bring a
separate action against
the respondent to recover
damages. (Sec 11, Rule 66,
Rules of Court)
Petition must be filed
within 10 days from the
proclamation of the
candidate. (Riano, Civil
Procedure: A Restatement
for the Bar, pp.
672, 2009 ed.).
Petitioner may be any
voter even if he is not
entitled to the office.
(Riano, Civil Procedure: A
Restatement for the Bar,
pp.
672, 2009 ed.).
Actual or compensatory
damages are recoverable in
quo warranto proceedings
under the Omnibus
Election Code.
3. An association which acts as a corporation within the
Philippines without being legally incorporated or
without lawful authority so to act (de facto
corporation) (Sec. 1, Rule 66).
Note: Actions of quo warranto against corporations now fall under
the jurisdiction of the RTC acting as Special Commercial Courts
(Sec. 5.2, Securities Regulations Code). Quo warranto will only lie
against DE FACTO corporations.
WHEN INDIVIDUAL MAY COMMENCE AN ACTION
A person claiming to be entitled to a public office or
position usurped or unlawfully held or exercised by another
may bring an action therefor in his own name (Sec. 5, Rule
66).
Such person may maintain action without the intervention
of the Solicitor General and without need for any leave of
court. He must show that he has a clear right to the office
allegedly being held by another (Cuevas vs. Bacal, 347 SCRA
338).

Note: The Solicitor General or public prosecutor may commence

Note: If the dispute is as to the counting of votes or on matters
the action at the instance of another person. In this case, leave of
connected with the conduct of the election, quo warranto is not
court is necessary (Sec. 3, Rule 66).
the proper remedy but an election protest (Cesar v. Garrido, G.R.
No. 30705, Mar. 25, 1929).
Q: In general, who may commence the action?
Q: Distinguish quo warranto in elective office from an
appointive office. A:
1. Solicitor General
A: 2. Public Prosecutor
Elective Office Appointive Office 3. Individual claiming to be entitled to the office or
Issue: eligibility of the Issue: validity of the position usurped or unlawfully held or exercised by
respondent appointment another (Sec. 5 Rule 66)
Occupant declared Court will oust the
Note: By analogy with provisions of Sec. 5, it has been held that a
ineligible/disloyal will person illegally public utility may bring a quo warranto action against another
be unseated but appointed and will public utility which has usurped the rights of the former granted
petitioner will not be order the seating of the under franchise (Cui v. Cui, 60 PHIL 57, April 9, 1934; Regalado,
declared the rightful person who was legally Remedial Law Compendium, Vol. I, p. 821, 10th ed.).
occupant of the office. appointed and entitled
(Nuval v Guray, 52 Phil to the office; The Court Q: What are the classifications of quo warranto
653 on the resolution of has to declare who the proceedings?
the motion for person entitled to the
reconsideration) office is if he is a A:
petitioner (Nuval v 1. Mandatory brought by the Solicitor General or Public
Guray, 52 Phil 653 on prosecutor when:
the resolution of the a. directed by the President;
motion for b. upon complaint or when he has reason to believe
reconsideration). that the cases for quo warranto can be
established by proof (Sec. 2, Rule 66)
WHEN GOVERNMENT MAY COMMENCE AN ACTION 2. Discretionary brought by the Solicitor General or a
AGAINST INDIVIDUALS public prosecutor at the request and upon the relation
of another person, provided there must be:
An action for the usurpation of a public office, position or a. leave of court
franchise may be commenced by a verified petition brought b. at the request and upon the relation of another
in the name of the Republic of the Philippines against: person
1. A person who usurps, intrudes into, or unlawfully c. indemnity bond (Sec. 3, Rule 66)
holds or exercises a public office, position or franchise;
2. A public officer who does or suffers an act which, by Q: Where is quo warranto proceeding filed?
the provision of law, constitutes a ground for the
forfeiture of his office; and A:

UNIVERSITY OF SANTO TOMAS 176

2013 GOLDEN NOTES
 CIVIL PROCEDURE
1. It can be brought only in the Supreme Court, the Court
of Appeals, or in the Regional Trial Court exercising
jurisdiction over the territorial area where the
respondent or any of the respondents resides;
Note: The petition may be brought in the SB in certain cases
but when in aid of its appellate jurisdiction. (PD 1606, Sec. 4
as amended by R.A No. 8249, Sec. 4; Riano, Civil Procedure: A
Restatement for the Bar, p. 670, 2009 ed)
2. When the Solicitor General commences the action, it
may be brought in a Regional Trial Court in the City of
Manila, in the Court of Appeals, or in the Supreme
Court (Sec. 7, Rule 66).
speedily as practicable (Torres v. Quintos, G.R. No. L-3304, April 5,
1951).
The court may reduce the period provided by these Rules for filing
pleadings and for all other proceedings in the action in order to
secure the most expeditious determination of the matters involved
therein consistent with the rights of the parties. Such action may
be given precedence over any other civil matter pending in the
court (Sec. 8, Rule 66).
Q: Is recovery of damages against the usurper of office
allowed?
A: Yes. If the petitioner is adjudged to be entitled to the
office, he may sue for damages against the alleged usurper
within 1 year from entry of judgment establishing his right
to the office in question (Sec. 11, Rule 66).

Q: What are the contents of a petition for quo against

JUDGMENT IN QUO WARRANTO ACTION
usurpation?
Q: What is the effect of a judgment in Quo Warranto case?
A: The petition shall set forth the following:
1. The name of the person who claim to be entitled
A: When the respondent is found guilty of usurping,
thereto;
intruding into, or unlawfully holding or exercising a public
2. If any, with an averment of his right to the same and
office, position or franchise, judgment shall be rendered
that the respondent is unlawfully in possession
that such respondent be ousted and altogether excluded
thereof;
therefrom, and that the petitioner or relator, as the case
3. All persons who claim to be entitled to the public
may be, recover his costs. Such further judgment may be
office, position or franchise may be made parties, and
rendered determining the respective rights in and to the
their respective rights to such public office, position or
public office, position or franchise of the parties to the
franchise determined, in the same action (Sec. 6, Rule
action as justice requires (Sec. 9, Rule 66).
66).
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC
Q: Within what period should a person ousted from office
OFFICE
file a petition for quo warranto?
If judgment be rendered in favor of the person averred in
A: GR: An action for quo warranto must be commenced
the complaint to be entitled to the public office, he may,
within one (1) year after the cause of such ouster, or the
after taking the oath of office and executing any official
right of the petitioner to hold such office or position, arose
bond required by law:
(Sec. 11, Rule 66). The failure to institute the same within
1. take upon himself the execution of the office;
the reglementary period constitutes more than a sufficient
2. may immediately thereafter demand all the
basis for its dismissal (Alejo v. Marquez, 37 SCRA 76), since
books and papers in the respondents custody or
it is not proper that the title to a public office be subjected
control appertaining to the office to which the
to continued uncertainty (Villegas v. De la Cruz, 15 SCRA
judgment relates; and
720).
3. may bring an action against the respondent to
recover damages sustained by such persons by
XPN: If the failure to file the action can be attributed to the
reason of usurpation (Sec. 10, Rule 66).
acts of a responsible government officer and not of the
dismissed employee (Conchita Romualdez-Yap v. CSC, et. Note: A quo warranto proceeding is one of the instances where
al., GR No. 104226, Aug. 12, 1993). exhaustion of administrative remedies is not required (Celestial vs.
Cachopero, G.R. No. 142595, Oct. 15, 2003, Riano, Civil Procedure:
Note: The periods within which quo warranto action should be A Restatement for the Bar, p. 671, 2009 ed.).
brought are a condition precedent to the existence of a cause of
action. EXPROPRIATION (RULE 67)
The pendency of administrative remedies does not operate to
suspend the period of one year within which a petition for quo Q: What is the power of eminent domain?
warranto should be filed. While it may be desirable that
administrative remedies be first resorted to, no one is compelled A: It is the right of the State to acquire private property for
or bound to do so, and as said remedies neither are pre-requisite public use upon the payment of just compensation.
to nor bar the institution of quo warranto proceedings, they should
not be allowed to suspend the period of one year. Public interest Note: The scope of the power of eminent domain as exercised by
requires that the right to a public office should be determined as the congress is plenary and is as broad as the police power. Such

177 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
power however, may also be delegated to local political
subdivisions and public utilities. (Riano, Civil Procedure: A
Restatement for the Bar, p. 675, 2009 ed)
Q: What is expropriation?
A: It is the procedure for enforcing the right of eminent
domain.
Q: How it is commenced?
A: It is commenced by a verified complaint stating the right
and purpose of expropriation, describing the property
sought to be expropriated, and joining as defendants all
persons owning or claiming to own any part thereof or
interest therein (Sec. 1, Rule 67).
Note: It is the actual filing of complaint for expropriation which
binds the land, and not a mere notice of the intent to expropriate.
However, the owner of the land may still dispose of said property,
despite the filing of the action, as the grantee would merely be
substituted in his place and holds the land subject to the results of
the action. (Regalado, Remedial Law Compendium, Vol. I, p. 830,
10th ed)
Q: What are the requisites of the exercise of a valid
expropriation?
A:
1. Due process of law;
2. Payment of just compensation; and
3. Taking must be for public use.
Q: When is expropriation proper?
A: It is proper only when:
1. The owner refuses to sell or,
2. If the latter agrees, agreement as to the price cannot
be reached.
Note: By reason of expediency, counterclaim, cross-claim or third-
party complaint shall be alleged or allowed in the answer or any
subsequent pleading.
Q: What are the properties that are subject to
expropriation?
A: All properties can be expropriated, except money and
choses in action.
Note: Choses in action - A right to personal things of which the
owner has not the possession, but merely a right of action for their
possession (Black Laws Dictionary).
Q: Is expropriation limited only to the acquisition of title
over the property expropriated?
A: Expropriation is not limited to the acquisition of real
property with a corresponding transfer of title or
possession. The right-of-way easement resulting in a
restriction or limitation on property rights over the land
traversed by transmission lines also falls within the ambit of
the term "expropriation" (National Power Corporation vs.
Vda. De Capin, G.R. No. 175176, October 17, 2008).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: Where is an action for expropriation filed?
A: It is filed with RTC because it is an action incapable of
pecuniary estimation regardless of the value of the subject
property.
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
The right of eminent domain shall be exercised by the filing
of a verified complaint, which shall:
1. state with certainty the right and purpose of
expropriation;
2. describe the real or personal property sought to be
expropriated, and
3. join as defendants all persons owning or claiming to
own, or occupying, any part thereof or interest
therein, showing, so far as practicable, the separate
interest of each defendant.
4. If the title to any property sought to be expropriated
appears to be in the Republic of the Philippines,
although occupied by private individuals, or if the title
is otherwise obscure or doubtful so that the plaintiff
cannot with accuracy or certainty specify who are the
real owners, averment to that effect shall be made in
the complaint (Sec. 1, Rule 67).
Note: Expropriation by the local government requires an
authorizing ordinance before it may be accomplished. Under Rule
67 and RA 8974 there is no need for legislative authorization
before the Government may proceed with a particular exercise of
eminent domain (Riano, Civil Procedure: A Restatement for the Bar,
pp. 678-679, 2009 ed.).
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION
Q: What are the stages in expropriation proceedings?
A:
1. Determination of the authority of the plaintiff to
expropriate. This determination includes an inquiry
into the propriety of the expropriation its necessity
and the public purpose.
Note: The first stage will end in the issuance of an order of
expropriation if the court finds for plaintiff or in dismissal
of the complaint if it finds otherwise.
2. Determination of just compensation through the court-
appointed commissioners (Riano, Civil Procedure: A
Restatement for the Bar, p. 677, 2009 ed.).
Q: The City of Iloilo (petitioner) represented by Mayor
Treas filed a complaint for eminent domain against
Javellana seeking to expropriate two parcels of land.
Mayor Treas filed a motion for issuance of writ of
possession alleging that it had deposited 10% of the
amount of compensation which the court issued. A writ of
possession was subsequently issued, and petitioner was
able to take physical possession of the properties. After
which, the expropriation proceedings remained dormant.
16 years later, Javellana filed an ex parte
motion/manifestation, where he alleged that when he
sought to withdraw the money, he discovered that no
deposit was made. Thus, Javellana filed a complaint for
178
 CIVIL PROCEDURE
recovery of possession, fixing and recovery of rental and
damages. The City of Iloilo argues that Javellana could no
longer bring an action for recovery since the subject
property was already taken for public use. The trial court
in its orders and amended orders maintained that the
assailed orders issued by it were interlocutory in character
and as such are always subject to modification and
revision by the court anytime. Is the order of
expropriation final?
current relevant zonal valuation of the Bureau of internal
Revenue (BIR), whichever is higher and the value of the
improvements and/or structures using the replacement
cost method.
Note: The intent of RA 8974 to supersede the system of deposit
under Rule 67 with the scheme of immediate payment in cases
involving national government infrastructure projects is indeed
very clear (MCWD v. J. King and Sons, G.R. No. 175983, April 16,
2009).

A: An order of condemnation or dismissal is final, resolving

the question of whether or not the plaintiff has properly
and legally exercised its power of eminent domain. Once
the first order becomes final and no appeal thereto is
taken, the authority to expropriate and its public use can no
longer be questioned. Thus, it has become final, and the
Q: Distinguish the system of deposit in Sec. 2, Rule 67
petitioners right to expropriate the property for a public
from RA 8974
use is no longer subject to review (City of Iloilo v. Hon.
Lolita Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).
A:
Sec. 2, Rule 67 RA 8974
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO
The government is required The government is required
POSSESSION OF THE REAL PROPERTY, IN RELATION TO
only to make an initial to make immediate
R.A. 8974
deposit with an authorized payment to the property
government depositary to owner upon filing of the
Whenever it is necessary to acquire real property for the
be entitled to a writ of complaint to be entitled to a
right-of-way or location for any national government
possession. writ of possession.
infrastructure project through expropriation, the
appropriate implementing agency shall initiate the The initial deposit is As the relevant standard for
expropriation proceedings before the proper court under equivalent to the assessed initial compensation, the
the following guidelines: value of the property for market value of the
the purposes of taxation. property as stated in the tax
1. Upon the filing of the complaint, and after due notice declaration or the current
to the defendant, and payment to the owner of the relevant zonal valuation of
property the amount equivalent to the value of the BIR, whichever is higher and
property based on the current relevant zonal valuation the value of the
of the Bureau of Internal Revenue (BIR); and (2) the improvements and/or
value of the improvements and/or structures; structures using the
2. In provinces, cities, municipalities and other areas replacement cost method
where there is no zonal valuation, the BIR is hereby (Riano, Civil Procedure: A
mandated within the period of sixty (60) days from the Restatement for the Bar, p.
date of the expropriation case, to come up with a 683, 2009 ed.)
zonal valuation for said area; and Applies to expropriation by Applies to expropriation by
3. In case the completion of a government infrastructure Government for purposes Government for purposes of
project is of utmost urgency and importance, and other than national national infrastructure
there is no existing valuation of the area concerned, infrastructure. projects.
the implementing agency shall immediately pay the
owner of the property its proffered value taking into Note: RA 8974 An act to facilitate the acquisition of right-of-way,
site or location for national government infrastructure projects and
consideration the standards prescribed by the law.
for other purposes.

Upon compliance with the guidelines abovementioned, the

Q: What are the requisites in order that plaintiff may be
court shall immediately issue to the implementing agency
authorized to immediately enter into property under Rule
an order to take possession of the property and start the
67?
implementation of the project (Sec. 4, Rule 8974).
A: Upon the:
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
1. filing of complaint, serving notice to defendant and
COMPENSATION
after depositing the assessed value of property for
taxation purposes with the authorized government
RA 8974 provides a modification of Sec. 2, Rule 67 where
depositary (Sec. 2, Rule 67); and
the Government is required to make immediate and direct
2. Tender, or payment with legal interest from the taking
payment to the property owner upon the filing of the
of possession of the property, of compensation fixed
complaint to be entitled to a writ of possession. As a
by the judgment and payment of costs by plaintiff (Sec.
relevant standard for initial compensation, the market
10, Rule 67).
value for the property as stated in the tax declaration or the
179 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: Once the preliminary deposit has been made, the
expropriator is entitled to a writ of possession as a matter of right,
and the issuance of said writ becomes ministerial on the part of the
trial court. (Biglang-Awa v. Bacalla, G.R. Nos. 139927-36, Nov. 22,
2000) The defenses by the owner against immediate possession
can be considered during trial on the merits. (NAPOCOR v. Jocson,
206 SCRA 520; Riano, Civil Procedure: A Restatement for the Bar, p.
682, 2009 ed)
Q: How is the value of the property ascertained?
A:
1. Personal property Provisionally ascertained and fixed
by court
2. Real property Assessed value in tax return
Q: What are the purposes of preliminary deposit?
A:
1. It serves as an advanced payment to the owner of the
property should the court decide in favor of the
plaintiff.
2. It shall serve as indemnity against any damage which
the owner may have sustained (Visayan Refining
Company vs. Camus, 40 Phil. 550).
Note: The preliminary deposit is only necessary if the plaintiff
desires entry on the land upon its institution of the action.
(Regalado, Remedial Law Compendium, Vol. I, p. 831, 10th ed)
DEFENSES AND OBJECTIONS
Q: What must be filed when defendant has an objection?
A: If a defendant has any objection to the filing of or the
allegations in the complaint, or any objection or defense to
the taking of his property, he shall serve his answer within
the time stated in the summons. The answer shall
specifically designate or identify the property in which he
claims to have an interest, state the nature and extent of
the interest claimed, and adduce all his objections and
defenses to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged or
allowed in the answer or any subsequent pleading (Sec. 3,
Rule 67).
Note: If there are no objections, he must file and serve a notice of
appearance and manifestation to that effect. And thereafter, shall
be entitled to notice of all proceedings (Sec. 3, Rule 67).
Q: What remedy does the defendant have in the event he
omits some defenses?
A: If the answer omits some defenses, the remedy, in order
to prevent a waiver of those defenses not alleged, is to seek
leave to amend the answer within 10 days from the filing
thereof (Sec. 3, Rule 67, Riano, Civil Procedure: A
Restatement for the Bar, p. 680, 2009 ed).
Q: What is the duty of the court if the defendant waives
his defenses or objections?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: If a defendant waives all defenses and objections not so
alleged, the court, in the interest of justice, may permit
amendments to the answer to be made not later than ten
(10) days from the filing thereof.
However, at the trial of the issue of just compensation,
whether or not a defendant has previously appeared or
answered, he may present evidence as to the amount of
the compensation to be paid for his property, and he may
share in the distribution of the award (Sec. 3, Rule 67).
Q: May the defendant be declared in default?
A: No. Failure to file an answer would not bar the court
from rendering judgment on the right to expropriate
without prejudice to the defendants right to present
evidence on just compensation and to share in the
distribution of the award (Sec. 3, Rule 67).
ORDER OF EXPROPRIATION
Q: What is an order of expropriation?
A: An order of expropriation (or order of condemnation)
will be issued declaring that the plaintiff has a lawful right
to take the property for the public use or purpose described
in the complaint upon the payment of just compensation in
the event the objections of the defendant are overruled or
when no party appears to object to or to defend against the
expropriation (Sec 4, Rule 67).
Note: After the rendition of the order of expropriation, the plaintiff
shall not be permitted to dismiss or discontinue the proceeding
except upon such terms as the court deems just and equitable. (Sec
4, Rule 67).
Q: What is the effect if the order of condemnation was
reversed?
A: If on appeal the appellate court determines that the
plaintiff has no right of expropriation, judgment shall be
rendered ordering the Regional Trial Court to enforce the
restoration to the defendant of the possession of the
property, and to determine the damages which the
defendant sustained and may recover by reason of the
possession taken by the plaintiff (Sec. 11, Rule 67).
Q: How may appeal be taken from an order of
expropriation by the party aggrieved?
A: It may be appealed by the defendant by record on
appeal. This is an instance when multiple appeals are
allowed because they have separate and/or several
judgments on different issues e.g. issue on the right to
expropriate or issue of just compensation.
Note: An appeal does not delay the right of the plaintiff to enter
upon the property of the defendant and appropriate the same for
public use. (Sec. 11, Rule 67). An appeal from judgment shall not
prevent the court from determining the just compensation to be
paid (Sec. 4 Rule 67).
Q: May the trial court decide conflicting claims of
ownership in the same case?
180
 CIVIL PROCEDURE
A: Yes. There is no need for an independent action since
the person entitled thereto will be adjudged in the same
proceeding. However, the court may order any sum(s)
awarded as compensation for the property to be paid to
the court for the benefit of the person that will be adjudged
as entitled thereto (Sec. 9, Rule 67).
ASCERTAINMENT OF JUST COMPENSATION
Q: May Congress enact a law providing that a 5,000 square
meter lot, a part of the UST compound in Sampaloc,
Manila, be expropriated for the construction of a park in
honor of former City Mayor Arsenio Lacson, and as
compensation to UST, the City of Manila shall deliver its 5-
hectare lot in Sta. Rosa, Laguna originally intended as a
residential subdivision for the Manila City Hall employees?
Explain. (2006 Bar Question)
A: Congress may enact a law to expropriate property but it
cannot limit just compensation. The determination of just
compensation is a judicial function and Congress may not
supplant or prevent the exercise of judicial discretion to
determine just compensation. Under Sec. 5, Rule 67 of the
Rules of Court, the ascertainment of just compensation
requires the evaluation of 3 commissioners.
Q: What is just compensation?
A: Just compensation is defined as the full and fair
equivalent of the property sought to be expropriated. The
measure is not the takers gain but the owners loss. The
compensation, to be just, must be fair not only to the
owner but also to the taker. Even as undervaluation would
deprive the owner of his property without due process, so
too would its overvaluation unduly favor him to the
prejudice of the public (National Power Corporation vs. De
la Cruz, G.R. No. 156093, Feb. 2, 2007).
Q: How does the court determine just compensation?
A: The trial court should first ascertain the market value of
the property, to which should be added the consequential
damages after deducting therefrom the consequential
benefits which may arise from the expropriation. If the
consequential benefits exceed the consequential damages,
these items should be disregarded altogether as the basic
value of the property should be paid in every case.
The market value of the property is the price that may be
agreed upon by parties willing but not compelled to enter
into the contract of sale. Not unlikely, a buyer desperate to
acquire a piece of property would agree to pay more, and a
seller in urgent need of funds would agree to accept less,
than what it is actually worth.
Among the factors to be considered in arriving at the fair
market value of the property are the cost of acquisition, the
current value of like properties, its actual or potential uses,
and in the particular case of lands, their size, shape,
location, and the tax declarations thereon (National Power
Corporation vs. De la Cruz, G.R. No. 156093, Feb. 2, 2007).
Q: What is the formula for the determination of just
compensation?
A:
JC = FMV + CD - CB
If CB is more than CD then,
JC = FMV
JC Just compensation
FMV Fair market value
CD Consequential damages
CB Consequential benefits
Note: Sentimental value is not computed.
Q: What is a consequential benefit?
A: It refers to actual benefits derived by the owner on the
remaining portion of his land which are the direct and
proximate results of the improvements consequent to the
expropriation, and not the general benefits which he
receives in common with community. (Regalado, Remedial
th
Law Compendium, Vol. I, p. 843, 10 ed)
Q: What is the reckoning point for determining just
compensation?
A: The value of just compensation shall be determined as of
the date of the taking of the property or the filing of the
complaint, whichever came first (Sec. 4, Rule 67).
GR: When the taking of the property sought to be
expropriated coincides with the commencement of the
expropriation proceedings, or takes place subsequent to
the filing of the complaint for eminent domain, the just
compensation should be determined as of the date of
the filing of the complaint (City of Iloilo v. Hon. Lolita
Contreras-Besana, G.R. No. 168967, Feb. 12, 2010).
XPNs:
1. Grave injustice to the property owner
Air Transportation Office cannot conveniently
invoke the right of eminent domain to take
advantage of the ridiculously low value of the
property at the time of taking that it arbitrarily
chooses to the prejudice of the land owners
(Heirs of Mateo Pidacan & Romana Eigo v. Air
Transportation Office, G.R. No. 162779, June 15,
2007).
2. The taking did not have color of legal authority
To allow NAPOCOR to use the date it constructed
the tunnels as the date of valuation would be
grossly unfair. First, it did not enter the land
under warrant or color of legal authority or with
intent to expropriate the same. It did not bother
to notify the owners and wrongly assumed it had
the right to dig those tunnels under their
property. Secondly, the improvements
introduced by NAPOCOR, the tunnels, in no way
contributed to an increase in the value of the
land. The trial court rightly computed the
181 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
valuation of the property as of 1992, when the
owners discovered the construction of the huge
underground tunnels beneath their lands and
NAPOCOR confirmed the same and started
negotiations for their purchase but no agreement
could be reached (NAPOCOR v. Ibrahim, G.R. No.
168732, June 29, 2007).
3. The taking of the property was not initially for
expropriation
There was no taking of the property in 1985 by
Public Estates Authority (PEA) for purposes of
expropriation. As shown by the records, PEA filed
with the RTC its petition for expropriation on
Sept. 22, 2003. The trial court was correct in
ordering the Republic, through PEA, upon the
filing of its complaint for expropriation, to pay
Tan just compensation on the basis of the BIR
zonal valuation of the subject property (Tan v.
Republic, G.R. No. 170740, May 25, 2007).
4. The owner will be given undue increment
advantages because of the expropriation
The value of the property in question was greatly
enhanced between the time when the extension
of the street was laid out and the date when the
condemnation proceedings were filed. The
owners of the land have no right to recover
damages for this unearned increment resulting
from the construction of the public improvement
for which the land was taken. To permit them to
do so would be to allow them to recover more
than the value of the land at the time when it was
taken, which is the true measure of the damages,
or just compensation, and would discourage the
construction of important public improvements
(Provincial Govt of Rizal v. Caro de Araullo, G.R.
No. L-36096, Aug. 16, 1933).
Note: Under Sec. 19 of the Local Government code the amount to
be paid for the expropriation of the expropriated property shall be
determined based on the fair market value at the time of the
taking of the property (Riano, Civil Procedure: A Restatement for
the Bar, p. 692, 2009 ed.).
Q: What is the effect of non-payment of just
compensation?
A: Nonpayment of just compensation does not entitle the
private landowner to recover possession of the
expropriated lots.
However, in case where the government failed to pay just
compensation within 5 years from the finality of judgment
in the expropriation proceedings, the owners concerned
shall have the right to recover possession of their property
(Republic vs. Lim, GR No. 161656, Jun.29, 2005).
Note: If the compensation is not paid when the property is taken,
but is postponed to a later date, the interest awarded is actually
part of just compensation, which takes into account such delay
(Benguet Consolidated vs. Republic, GR No. 712412, Aug. 15, 1986).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
APPOINTMENT OF COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION UPON COMMISSIONERS REPORT
Q: When may the court appoint a commissioner in
expropriation proceedings?
A: Upon the rendition of the order of expropriation, the
court shall appoint not more than three (3) competent and
disinterested persons as commissioners to ascertain and
report to the court the just compensation for the property
sought to be taken. The order of appointment shall
designate the time and place of the first session of the
hearing to be held by the commissioners and specify the
time within which their report shall be submitted to the
court (Sec. 5, Rule 67).
Note: Objections to the order of appointment must be filed within
10 days from service of the order and shall be resolved within 30
days after all the commissioners received the copies of the
objections (Sec. 5, Rule 67).
Q: May the court dispense with the assistance of
commissioners in the determination of just compensation
in expropriation proceedings?
A: No. The appointment of commissioners to ascertain just
compensation for the property sought to be taken is a
mandatory requirement in expropriation cases. Where the
principal issue is the determination of just compensation, a
hearing before the commissioners is indispensable to allow
the parties to present evidence on the issue of just
compensation.
While it is true that the findings of commissioners may be
disregarded and the trial court may substitute its own
estimate of the value, the latter may only do so for valid
reasons, that is, where the commissioners have applied
illegal principles to the evidence submitted to them, where
they have disregarded a clear preponderance of evidence,
or where the amount allowed is either grossly inadequate
or excessive. (National Power Corporation vs. De la Cruz,
G.R. No. 156093, February 2, 2007)
Q: What are the matters taken in determining just
compensation by the commissioner?
A: The parties may introduce their evidence before the
commissioners and they may argue their case either by
themselves or by counsel. The commissioners shall assess
the consequential damages to the property not taken and
deduct from such consequential damages the
consequential benefits to be derived by the owner from the
public use or purpose of the property taken, the operation
of its franchise by the corporation or the carrying on of the
business of the corporation or person taking the property.
But in no case shall the consequential benefits assessed
exceed the consequential damages assessed, or the owner
be deprived of the actual value of his property so taken
(Sec. 6, Rule 67; Riano, Civil Procedure: A Restatement for
the Bar, p. 687, 2009 ed.).
Q: When should the commissioners make a report?
182
 CIVIL PROCEDURE
A: As a rule, the commissioners shall make their report
within 60 days from the date they were notified of their
appointment. This period may be extended in the discretion
of the court.
Upon the filing of such report, the clerk of the court shall
serve copies thereof on all interested parties, with notice
that they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire.
(Sec. 7, Rule 67; Riano, Civil Procedure: A Restatement for
the Bar, p. 687, 2009 ed)
The court may order the commissioners to report when any
particular portion of the real estate shall have been passed
upon by them, and may render judgment upon such partial
report, and direct the commissioners to proceed with their
work as to subsequent portions of the property sought to
be expropriated, and may from time to time so deal with
such property. The commissioners shall make a full and
accurate report to the court of all their proceedings, and
such proceedings shall not be effectual until the court shall
have accepted their report and rendered judgment in
accordance with their recommendations (Sec. 7 Rule 67).
RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT
After payment of just compensation, as determined in the
judgment, the plaintiff shall have the right to enter upon
the property expropriated and to appropriate the same for
the public use or purpose defined in the judgment or to
retain possession already previously made in accordance
with Sec. 2 (Entry of plaintiff upon depositing value with
authorized government depositary) (Sec. 10 Rule 67).
Q: What is the remedy of the plaintiff if the defendant
declines to receive the amount tendered?
A: If the defendant and his counsel absent themselves from
the court, or decline to receive the amount tendered, the
same shall be ordered to be deposited in court and such
deposit shall have the same effect as actual payment
thereof to the defendant or the person ultimately adjudged
entitled thereto (Sec. 10, Rule 67).
Note: The payment shall involve the amount fixed in the judgment
and shall include legal interest from the taking of possession of the
property. (Sec. 10, Rule 67)
EFFECT OF RECORDING OF JUDGMENT
When real estate is expropriated, a certified copy of such
judgment shall be recorded in the registry of deeds of the
place in which the property is situated, and its effect shall
be to vest in the plaintiff the title to the real estate so
described for such public use or purpose. (Sec 13, Rule 67)
FORECLOSURE OF REAL ESTATE MORTGAGE (RULE 68)
Q: What is Real Estate Mortgage (REM)?
A: An accessory contract executed by a debtor in favor of a
creditor as security for principal obligation (Riano, Civil
Procedure: A Restatement for the Bar, p. 694, 2009 ed.).
183
Q: What is foreclosure of REM?
A: It is the remedy used for the satisfaction of any
monetary obligation, which a person owes to another, by
proceeding against the property used to secure said
obligation.
Q: How is an action for foreclosure of REM commenced?
A: It is commenced by a complaint setting forth the date
and due execution of the mortgage; the names and
residences of the mortgagor and the mortgagee; a
description of the mortgaged property; date of the note or
other documentary evidence of the obligation secured by
the mortgage, the amount claimed to be unpaid thereon;
and the names and residences of all persons having or
claiming an interest in the property subordinate in right to
that of the holder of the mortgage (Sec. 1, Rule 68).
Q: What are the requisites of a valid foreclosure of REM?
A:
1. A finding of the amount due the plaintiff including
interest, cost and other charges approved by the
court;
2. Order to defendant to pay said amount within a period
of not less than 90 days nor more than 120 days from
entry of judgment; and
3. If the defendant defaults, the court should order the
sale at public auction of the mortgaged property (Sec.
2, Rule 68).
Q: What court has jurisdiction over foreclosure of REM?
A: RTC of the province where the land or any part thereof is
situated.
Note: Foreclosure of REM is incapable of pecuniary estimation
because the court in this action would have to resolve the issue of
whether or not there is a legal basis for foreclosure (Riano, Civil
Procedure: A Restatement for the Bar, p. 696, 2009 ed.).
Q: What are the matters alleged in the complaint for
foreclosure of REM?
A: The complaint shall contain the following:
1. the date and due execution of the mortgage;
2. the names and residences of the mortgagor and the
mortgagee;
3. a description of the mortgaged property;
4. date of the note or other documentary evidence of the
obligation secured by the mortgage, the amount
claimed to be unpaid thereon; and
5. the names and residences of all persons having or
claiming an interest in the property subordinate in
right to that of the holder of the mortgage (Sec. 1, Rule
68).
Q: What is the cause of action in a foreclosure suit?
A: Generally, non-payment of the mortgage loan, but it may
be on other grounds which under the contract warrant the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
foreclosure, such as the violation of some of other
conditions therein (Regalado, Remedial Law Compendium,
th
Vol. I, p. 851, 10 ed.).
Q: In a foreclosure action, who are the defendants that
must be joined?
A:
1. The persons obligated to pay the mortgage debt;
2. The persons who own, occupy or control the
mortgaged premises;
3. The transferee or grantee of the property; and
4. The second mortgagee or junior encumbrancer, or any
person claiming a right or interest in the property
subordinate to the mortgage sought to be foreclosed;
but if the action is by the junior encumbrancer, the
first mortgagee may also be joined as defendant
(Regalado, Remedial Law Compendium, Vol. I, p. 852,
th
10 ed)
Q: What is the effect if the junior encumbrancer is not
impleaded?
A: His equity or right of redemption is not affected or
barred by the judgment of the court because he is merely a
necessary party not an indispensable party (Sunlife
Insurance v. Diez, G.R. No. 29027, Oct. 25, 1928).
Note: The remedy of the senior encumbrancer is to file an
independent proceeding to foreclose the right to redeem by
requiring the junior encumbrancer to pay the amount stated in the
order of execution or to redeem the property in a specified time.
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE
It is the judgment of the court ordering the debtor to pay
within a period not less than 90 days nor more than 120
days from the entry of judgment after ascertaining the
amount due to the plaintiff (Sec. 2, Rule 68).
Note: The judgment of the court is considered a final adjudication
of the case and hence, is subject to challenge by the aggrieved
party by appeal or by other post judgment remedies (Riano, Civil
Procedure: A Restatement for the Bar, p. 701, 2009 ed.).
Q: What is foreclosure sale?
A: When the defendant fails to pay the amount of the
judgment within the period specified therein, the court,
upon motion, shall order the property to be sold in the
manner and under the provisions of Rule 39 and other
regulations governing sales of real estate under executions
(Sec. 3, Rule 68).
SALE OF MORTGAGED PROPERTY; EFFECT
Q: When is the sale of mortgaged property proper and
how must it be effected?
A: If the mortgagor fails to pay the sum due within the
period (90-120 days) stated by the court in its judgment,
upon motion of the mortgagee, the court shall order the
property to be sold in the manner and under the provisions
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
of Rule 39 and other regulations governing sales of real
estate under execution (Sec. 3, Rule 68).
Q: What is the effect of sale of mortgaged property?
A: The purchaser in a foreclosure sale is entitled to a writ of
possession and that, upon an ex parte motion of the
purchaser, it is ministerial upon the court to issue writ of
possession in his favor. He is not required to bring a
separate action for possession after the redemption period
has expired.
However, where the parties in possession claim ownership
thereof and, it may be added, if there is some plausibility in
their claim, that issue must first be ventilated in a proper
hearing of the merits thereof (Regalado, Remedial Law
th
Compendium, Vol. I, p. 856, 10 ed.).
Q: Does the mortgagor have the right to a notice of sale?
A: The mortgagor does not have the right to a notice of sale
after his failure to pay the debt because said notice is not
litigable and the issuance thereof is ministerial.
Note: The mortgagor is entitled to a notice of hearing of the
confirmation of the sale; otherwise, the order is void. Due process
requires that said notice be given so that the mortgagor can resist
the motion and be informed that his right to redeem is cut-off
(Tiglao v. Botones, G.R. No. L-3619, Oct. 29, 1951). The order of
confirmation is appealable.
Q: What is the effect of order of confirmation?
A: It shall operate to divest the rights in the property of all
the parties to the action and to vest their rights in the
purchaser, subject to such rights of redemption as may be
allowed by law (Sec. 3, Rule 68). It is said that title vests in
the purchaser upon a valid confirmation of the sale and
retroacts to the date of the sale (Binalgan Estate vs.
Gatuslao 74, Phil 128, Riano, Civil Procedure: A Restatement
for the Bar, p. 707, 2009 ed)
Q: What is the remedy if the mortgagor refuses to vacate?
A: The purchaser may ask for a writ of possession.
DISPOSITION OF PROCEEDS OF SALE
Q: How is the disposition of the proceeds of the sale
done?
A: The proceeds of the sale of the mortgaged property
shall, after deducting the costs of the sale, be paid to the
person foreclosing the mortgage, and when there shall be
any balance or residue after paying off the mortgage debt
due, the same shall be paid to junior encumbrances in the
order of their priority. If there be any further balance after
paying them or if there be no junior encumbrances, the
same shall be paid to the mortgagor or any person entitled
thereto (Sec. 4, Rule 68).
Q: What claims shall be satisfied from the proceeds of the
public sale of the mortgaged property (in order)?
184
 CIVIL PROCEDURE
A:
1. Costs incurred in the sale of property;
2. Claim of the person foreclosing the property;
3. Claims of junior encumbrancers in the order of their
priority;
4. Residue goes to the mortgagor or his authorized agent,
or any other person entitled to it.
DEFICIENCY JUDGMENT
Q: What is deficiency judgment?
A: It is the judgment rendered by the court holding the
defendant liable for any unpaid balance due to the
mortgagee if the proceeds from the foreclosure sale do not
satisfy the entire debt.
Q: May the plaintiff recover deficiency?
A: If there is a balance due to the plaintiff after applying the
proceeds of the sale, the court, upon motion, shall render
judgment against the defendant for any balance for which,
by the record of the case, he may be personally liable to the
plaintiff. Execution may issue immediately if the balance is
all due at the time of the rendition of the judgment. If not
due, the plaintiff shall be entitled to execution at such time
as the balance remaining becomes due under the terms of
the original contract, which time shall be stated in the
judgment (Sec. 6, Rule 68; Riano, Civil Procedure: A
Restatement for the Bar, p. 709, 2009 ed.).
Q: In case of deficiency judgment, what is the liability of a
rd
3 party mortgagor?
A: If such third person did not assume personal liability for
the payment of the debt, the extent of recovery in the
judgment of foreclosure shall be limited to the purchase
price at the foreclosure sale and no deficiency judgment
can be recovered against said person (Phil. Trust Co. vs. Tan
Suisa, 52 Phil 852; Regalado, Remedial Law Compendium,
th
Vol. I, p. 859, 10 ed.).
INSTANCES WHEN COURT CANNOT RENDER DEFICIENCY
JUDGMENT
A: When the:
1. Case is covered by the Recto Law (Art. 1484, NCC);
2. Mortgagor is a non-resident and who at the time of
the filing of the action for foreclosure and during the
pendency of the proceedings was outside the
Philippines, unless there is attachment;
3. Mortgagor dies, the mortgagee may file his claim with
the probate court under Sec. 7, Rule 86; and
4. Mortgagee is a third person but not solidarily liable
with the debtor.
Q: Arlene borrowed P1 million from GAP Bank (GAP)
secured by the titled land of her friend Gretchen who,
however, did not assume personal liability for the loan.
Arlene defaulted and GAP filed an action for judicial
foreclosure of the real estate mortgage impleading Arlene
and Gretchen as defendants. The court rendered
185
judgment directing Arlene to pay the outstanding account
of P1.5 million (principal plus interest) to GAP. No appeal
was taken by Arlene. Arlene failed to pay the judgment
debt within the period specified in the decision. At the
foreclosure sale, the land was sold to GAP for P1.2 million.
The sale was confirmed by the court, and the confirmation
of the sale was registered with the Registy of Deeds on
January 5, 2002.
On January 10, 2003, GAP filed an ex-parte motion with
the court for the issuance of a writ of possession to oust
Gretchen from the land. It also filed a deficiency claim for
P800,000 against Arlene and Gretchen. The deficiency
claim was opposed by Arlene and Gretchen.
1. Resolve the motion for the issuance of a writ of
possession.
2. Resolve the deficiency claim of the bank. (2003 Bar
Question)
A:
1. In judicial foreclosure by banks such as GAP, the
mortgagor or debtor whose real property has been sold
on foreclosure has the right to redeem the property
within 1 year after the sale (or registration of the sale).
However, under Sec. 47 of the General Banking Law of
2000, the purchaser at the auction sale has the right to
obtain a writ of possession after the finality of the order
confirming sale. The motion for writ of possession,
however, cannot be filed ex parte. There must be a
notice of hearing.
2. The deficiency claim of the bank may be enforced
against the mortgage debtor Arlene, but it cannot be
enforced against Gretchen, the owner of the mortgaged
property, who did not assume personal liability of the
loan.
Judicial foreclosure versus extrajudicial foreclosure
Q: What are the modes of foreclosure?
A:
1. Judicial foreclosure (Rule 68)
2. Extrajudicial foreclosure (Act. 3135 as amended by Act
4188)
Q: Distinguish judicial foreclosure from extrajudicial
foreclosure
A:
Judicial Foreclosure Extrajudicial
Foreclosure
Requires court No court intervention
intervention necessary
There is only an equity Right of redemption
of redemption except exists
when the mortgagee is
a bank
Governed by Rule 68 Governed by Act 3135
Note: A mortgagee may bring a personal action for the amount
due, instead of a foreclosure suit, in which case, he will be deemed
to have waived his right to proceed against the property in a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
foreclosure proceeding (Movido v. RFC, G.R. No. L-11990, May 29, 4. When property is not subject to physical division and
1959). to do so would render it unserviceable for the use for
which it is intended (Art. 495, NCC); or
EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION 5. When the condition imposed upon voluntary heirs
before they can demand partition has not yet been
Equity of Redemption Right of Redemption fulfilled (Art. 1094, NCC).
Right of the defendant Right of the debtor, his
mortgagor to successor in interest or any WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
extinguish the judicial creditor or judgment DEFENDANTS
mortgage and retain creditor of said debtor or
ownership of the any person having a lien on The action shall be brought by the person who has a right
property by paying the the property subsequent to to compel the partition of real estate (Sec. 1, Rule 69) or of
debt within a period of the mortgage or deed of an estate composed of personal property, or both real and
not less than 90 nor trust under which the personal property (Sec. 13, Rule 69). The plaintiff is a
more than 120 days property is sold to redeem person who is supposed to be a co-owner of the property
from the entry of the property within 1 year or estate sought to be partitioned. The defendants are all
judgment or even after from the registration of the the co-owners.
the foreclosure sale but Sheriffs certificate of Note: All the co-owners are indispensible parties. (Riano, Civil
prior to confirmation foreclosure sale Procedure: A Restatement for the Bar, p. 713, 2009 ed)
Governed by Rule 68 Governed by Secs. 29-31,
Rule 39 Q: What is the effect of non-inclusion of a co-owner in an
action for partition?
Note: In extrajudicial foreclosure, the mortgagor has the right to
redeem the property within one year from the registration of the A:
deed of sale. However, Sec. 47 of the General Banking Act provides 1. Before judgment not a ground for a motion to
that in case of extrajudicial foreclosure, juridical persons shall have
dismiss. The remedy is to file a motion to include the
the right to redeem the property until, but not after, the
registration of the certificate of foreclosure sale which in no case party.
shall be more than 3 months after foreclosure, whichever is earlier. 2. After judgment makes the judgment therein void
The pendency of the action stops the running of the right of because co-owners are indispensable parties.
redemption. Said right continues after perfection of an appeal until
the decision of the appeal (Consolidated Bank and Trust Corp. v. Note: Creditors or assignees of co-owners may intervene and
IAC, G.R. No. 73341, Aug. 21, 1987). object to a partition affected without their concurrence. But they
cannot impugn a partition already executed unless there has been
PARTITION (RULE 69) fraud or in case it was made notwithstanding a formal opposition
presented to prevent it (Sec. 12, Rule 69).
Q: What is partition and how it is commenced?
MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION
A: It is a process of dividing and assigning property owned
in common among the various co-owners thereof in A: The plaintiff shall state in his complaint the following:
proportion to their respective interests in said property. It 1. The nature and extent of his title,
is commenced by a complaint. (Sec. 1, Rule 69) 2. An adequate description of the real estate of which
partition is demanded, and
Q: What are the requisites of a valid partition? 3. Shall join as defendants all other persons interested in
the property (Sec. 1, Rule 69).
A: 4. He must also include a demand for the accounting of
1. Right to compel the partition; the rents, profits and other income from the property
2. Complaint must state the nature and extent of which he may be entitled to.
plaintiff's title and a description of the real estate of
which partition is demanded; These cannot be demanded in another action because they
3. All other persons interested in the property must be are parts of the cause of action for partition. They will be
joined as defendants (Sec. 1, Rule 69). barred if not set up in the same action pursuant to the rule
against splitting a single cause of action. (Riano, Civil
Q: What are the instances when a co-owner may not Procedure: A Restatement for the Bar, p. 713, 2009 ed)
demand partition?
Note: When the allegations of the complaint allege that the
plaintiff asserts exclusive ownership of the party sought to be
A:
partitioned, the nature of the action is not one for partition. It is an
1. There is an agreement among the co-owners to keep action for recovery of property. (De la Cruz vs. Court of Appeals,
the property undivided for a certain period of time but 412 SCRA 282; Riano, Civil Procedure: A Restatement for the Bar, p.
not exceeding ten years (Art. 494, NCC); 713, 2009 ed)
2. When partition is prohibited by the donor or testator
for a period not exceeding 20 years (Art. 494; Art. TWO STAGES IN EVERY ACTION FOR PARTITION
1083, NCC);
3. When partition is prohibited by law (Art. 494, NCC);
UNIVERSITY OF SANTO TOMAS 186
2013 GOLDEN NOTES
 CIVIL PROCEDURE
1. Propriety of partition - whether co-ownership exists;
and
2. How to actually partition the property and accounting.
Q: What stages in an action for partition could be the
subject of appeal?
A:
1. Order determining the propriety of the partition
2. Judgment as to the fruits and income of the property
3. Judgment of partition (Riano, Civil Procedure: A
Restatement for the Bar, p. 717, 2009 ed.).
Note: The mode of appeal is record on appeal. This is one of the
instances when the rules allow multiple appeals. A judgment
declaring the existence of co-ownership is immediately appealable.
Judgment directing an accounting is appealable regardless of
whether the accounting is the principal relief sought or a mere
incident, and becomes final and executory within the reglementary
period (Miranda v. CA, G.R. No. L- 33007, June 18, 1976).
ORDER OF PARTITION AND PARTITION BY AGREEMENT
Q: What are the modes of partition?
A:
1. By agreement of the parties; or
2. By judicial proceedings under Rule 69 (order of
partition) (Art. 494 NCC, Figuracion-Gerilla vs. Vda. De
Figuracion, GR No. 154322, Aug. 22, 2006; Riano, Civil
Procedure: A Restatement for the Bar, p. 712, 2009
ed.).
Note: Nothing in this Rule shall be construed to restrict or prevent
persons holding real estate jointly or in common from making an
amicable partition thereof by agreement and suitable instruments
of conveyance without recourse to an action (Sec. 12, Rule 69). If
the co-owners cannot agree on the partition of the property, the
only recourse is the filing of an action for partition (Riano, Civil
Procedure: A Restatement for the Bar, p. 712, 2009 ed.).
Q: What is an order of partition?
A: It is an order that directs the parties or co-owners to
partition the property
Note: The primary issue to be determined in an action for partition
is whether or not the plaintiff has the right to partition (Riano, Civil
Procedure: A Restatement for the Bar, p. 714, 2009 ed.).
Q: When does the court issue the order of partition?
A: During the trial, the court shall determine whether or
not the plaintiff is truly a co-owner of the property, that
there is indeed a co-ownership among the parties, and that
a partition is not legally proscribed thus may be allowed. If
the court so finds that the facts are such that a partition
would be in order, and that the plaintiff has a right to
demand partition, the court will issue an order of partition.
Q: When is partition by agreement proper?
A: After the order of partition they may, if they are able to
agree, make the partition among themselves by proper
187
instruments of conveyance, and the court shall confirm the
partition so agreed upon by all the parties, and such
partition, together with the order of the court confirming
the same, shall be recorded in the registry of deeds of the
place in which the property is situated (Sec. 2, Rule 69).
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS, COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS REPORT
Q: When can there be appointment of commissioners?
A: If co-owners are unable to agree upon the partition of
the property, the next stage in the action is the
appointment of commissioners (Riano, Civil Procedure: A
Restatement for the Bar, p. 716, 2009 ed.).
Q: What is the duty of the court in the event that the co-
owners do not agree in the partition?
A: If parties cannot agree, the court shall appoint not more
than 3 commissioners of competent and disinterested
persons to make partition. They shall make full and
accurate report to the court of all their proceedings as to
the partition for the parties (Sec. 3 Rule 69).
Q: Can the appointment of commissioners be dispensed
with in an action for partition?
A: The appointment of commissioners is mandatory unless
there is an extrajudicial partition between the parties. They
have the power to effect the partition but not to inquire
into question of ownership or possession.
Q: When can there be assignment of real estate by
commissioners?
A: When it is made to appear to the commissioners that the
real state, or a portion thereof, cannot be divided without
prejudice to the interests of the parties, the court may
order it assigned to one of the parties willing to take the
same, provided he pays to the other parties such amount as
the commissioners deem equitable (Sec. 5 Rule 69).
Q: If one of the interested parties asks that the property
be sold instead of being assigned, what should the court
do?
A: The court shall order the commissioners to sell the real
estate at public sale under such conditions and within such
time as the court may determine (Sec. 5, Rule 69).
Q: What are the duties of the commissioners in an action
for partition?
A: The commissioners shall:
1. Make a full and accurate report to the court of all their
proceedings as to the partition; or
2. The assignment of real estate to one of the parties; or
3. The sale of the same.
Upon the filing of such report, the clerk of court shall serve
copies thereof on all the interested parties with notice that
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
they are allowed ten (10) days within which to file
objections to the findings of the report, if they so desire
(Sec. 6, Rule 69).
Q: Is the court bound by the report of the commissioner?
A: No. The court may, upon hearing, accept the report and
render judgment in accordance with the same; recommit
the same to the commissioners for further report of the
facts; accept or reject the report in part; or render
judgment that shall effectuate a fair and just partition of
the real estate (Sec. 7, Rule 69).
Note: The rule mandates that a hearing must be conducted before
a rendition of a judgment.
JUDGMENT AND ITS EFFECTS
Q: What should the judgment contain and its effects?
A:
1. If actual partition of property is made, the judgment
shall state definitely:
(a) The metes and bounds and adequate description;
and
(b) The particular portion of the real estate assigned
to each party
2. If the whole property is assigned to one of the parties
upon his paying to the others the sum or sums ordered
by the court, the judgment shall state the fact of such
payment, and of the assignment of the real estate to
the party making the payment.
3. If the property is sold and the sale confirmed by the
court, the judgment shall state:
(a) the name of the purchaser or purchasers;
(b) and a definite description of the parcels of real
estate sold to each purchaser.
Note: A certified copy of the judgment shall in either case be
recorded in the registry of deeds of the place in which the real
estate is situated, and the expenses of such recording shall be
taxed as part of the costs of the action (Sec. 11 Rule 69).
PARTITION OF PERSONAL PROPERTY
Q: What is the rule on partition of personal property?
A: The provisions of this Rule shall apply to partitions of
estates composed of personal property, or of both real and
personal property, in so far as the same may be
applicable (Sec. 13, Rule 69).
PRESCRIPTION OF ACTION
Prescription of action does not run in favor of a co-owner or
co-heir against his co-owner or co-heirs as long as there is a
recognition of the co-ownership expressly or impliedly (Art.
494, NCC).
GR: Action to demand partition of a co-owned property
does not prescribe.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
XPN: a co-owner may acquire ownership thereof by
prescription where there exists a clear repudiation of the
co-ownership and the co-owners are apprised of the claim
of adverse and exclusive ownership (Heirs of Restar vs.
Heirs of Cichon, 475 SCRA 731; Riano, Civil Procedure: A
Restatement for the Bar, p. 712, 2009 ed.).
FORCIBLE ENTRY AND UNLAWFUL DETAINER (RULE 70)
DEFINITIONS AND DISTINCTIONS
Q. What is forcible entry and how is it commenced?
A: It is an action to recover possession founded upon illegal
possession from the beginning when one is deprived of
physical possession of real property by means of force,
intimidation, threat, strategy, or stealth. It is commenced
by a verified complaint (Sec. 1, Rule 70).
Q: What are the requisites of forcible entry?
A:
1. A person is deprived of possession of any land or
building by force, intimidation, threat, strategy, or
stealth; and
2. Action is brought within 1 year from the unlawful
deprivation (Sec. 1, Rule 70).
Q: What are the questions to be resolved in an action for
forcible entry?
A:
1. Who has actual possession over the real property;
2. Was the possessor ousted therefrom within one year
from the filing of the complaint by force, intimidation,
strategy, threat or stealth; and
3. Does the plaintiff ask for the restoration of his
possession (Dizon v. Concina, G.R. No. 23756, Dec. 27,
1969).
Q: What is unlawful detainer and how is it commenced?
A: It is where one illegally withholds possession after the
expiration or termination of his right to hold possession
under any contract, express or implied. (Riano, Civil
Procedure: A Restatement for the Bar, p. 719, 2009 ed). It is
commenced by a verified complaint. (Sec. 1, Rule 70)
Q: What are the requisites of unlawful detainer?
A:
1. Possession of any land or building is unlawfully
withheld from a lessor, vendor, vendee, or other
person after the expiration or termination of the right
to hold possession by virtue of any contract express or
implied;
2. Action is brought within 1 year after such unlawful
deprivation or withholding of possession; and
3. Demand to pay or comply with the conditions of the
lease and to vacate is made upon the lessee (Sec. 1,
Rule 70).
188
 CIVIL PROCEDURE

be counted from the violation of the

Note: If the complaint does not allege facts showing compliance demand to vacate upon conditions of the lease
with the prescribed one year period to file an action for unlawful learning of the stealth (Riano, Civil Procedure: A
detainer, then it cannot properly qualify as such action over which (Riano, Civil Procedure: A Restatement for the Bar,
the MTCC can exercise jurisdiction. Such allegations are
Restatement for the Bar, p. 725, 2009 ed.)
jurisdictional and crucial. It may then be an accion publiciana or
accion reivindicatoria (Estate of Manantan vs. Somera, GR No. p. 725, 2009 ed.)
145867, April 7, 2009).

Q: Is formal contract a prerequisite in unlawful detainer?

A: No. Even if there is no formal contract between the

parties, there can still be an unlawful detainer because
implied contracts are covered by ejectment proceedings.
Possession by tolerance creates an implied promise to
vacate the premises upon the demand of the owner (Peran Distinguished from accion publiciana and accion
v. CFI of Sorsogon, G.R. No. 57259, Oct. 13, 1983). reivindicatoria

Q: Does the amount of rents and damages prayed for in an Q: What are the actions available to recover possession of
action for forcible entry and unlawful detainer affect the real property?
jurisdiction of the courts?
A:
A: No. The amount of rents and damages claimed does not 1. Accion Interdictal (ejectment);
affect jurisdiction of the MTCs because the same are only 2. Accion Publiciana; and
incidental or accessory to the main action (Lao Seng Hian v. 3. Accion Reinvindicatoria
Lopez, G.R. No. L-1950, May 16, 1949).
Q: Distinguish from each other the 3 possessory actions
Note: If only rents or damages are claimed in an ordinary action,
the action is personal and the amount claimed determines whether
A:
it falls within the jurisdiction of the RTC or the MTC.
Accion Accion Accion
Q: Distinguish forcible entry from unlawful detainer Interdictal Publiciana Reivindicatoria
Summary A plenary action An action for the
A: action for the for the recovery recovery of
Forcible Entry Unlawful Detainer recovery of of the real right ownership, which
(Detentacion) (Desahucio) physical of possession necessarily
possession when the includes the
Possession of the land by Possession is inceptively
where the dispossession recovery of
the defendant is lawful but it becomes
dispossession has lasted for possession.
unlawful from the illegal by reason of the
has not lasted more than 1
beginning as he acquires termination of his right
for more than year.
possession by force, to the possession of the
1 year.
intimidation, strategy, property under his
threat contract with the All cases of RTC has RTC has
or stealth. plaintiff. forcible entry jurisdiction if jurisdiction if the
and unlawful the value of the value of the
Demand to vacate is not Demand is jurisdictional
detainer property property exceeds
required before the filing if the ground is non-
irrespective of exceeds P20,000 P20,000 or
of the action because payment of rentals or
the amount of or P50,000 in P50,000 in Metro
occupancy is illegal from failure to comply with
damages or Metro Manila. Manila.
the very beginning the lease contract.
unpaid rentals
(Riano, Civil Procedure: A
sought to be MTC has MTC has
Restatement for the Bar,
recovered jurisdiction if jurisdiction if the
p. 725, 2009 ed.).
should be the value of the value of the
The plaintiff must prove The plaintiff need not
brought to the property does property does not
that he was in prior have been in prior
MTC. not exceed the exceed the above
physical possession of physical possession.
above amounts. amounts.
the premises until he
was deprived thereof by
the defendant. Q: What rule should govern the proceedings of accion
GR: The 1 year period is Period is counted from interdictal?
counted from the date of the date of the last
actual entry on the land. demand or last letter of A: GR: Ejectment cases are summary proceedings intended
demand in case of non- to provide an expeditious means of protecting actual
XPN: When entry is by
payment of rentals or possession or right to possession of property.
stealth, the period must

189 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
XPN: When the decision of the MTC is appealed to the RTC,
the applicable rules are those of the latter court (Refugia v.
CA, G.R. No. 118284, July 5, 1996).
Note: Ejectment suits can be maintained with respect to all kinds
of land, but agricultural lands under tenancy are now subject to the
land reform laws, and cases arising thereunder are within the
jurisdiction of Regional Trial Court acting as Special Agrarian Court
(Regalado, Remedial Law Compendium, Vol. I, p. 871, 10th ed.).
HOW TO DETERMINE JURISDICTION IN ACCION
PUBLICIANA AND ACCION REIVINDICATORIA
Q: In which court may accion publiciana and accion
reinvindicatoria be filed?
A: The actions of forcible entry and unlawful detainer are
within the exclusive and original jurisdiction of the MTC,
MeTC and MCTC (Sec. 33[2], BP 129; RA 7691) and shall be
governed by the rules on summary procedure irrespective
of the amount of damages or rental sought to be recovered
(Sec. 3, Rule 70). In case of accion publiciana and accion
reivindicatoria, RTC has jurisdiction if the value of the
property exceeds P20,000 or exceeds P50,000 in Metro
Manila. MTC has jurisdiction if the value of the property
does not exceed the above amounts.
Q: What are matters alleged in action for forcible entry?
A: In order for the municipal court to acquire jurisdiction
the following must be alleged:
1. Plaintiffs prior physical possession of the property;
and
2. He was deprived of possession of any land or building
by force, intimidation, threat, strategy, or stealth
(Riano, Civil Procedure: A Restatement for the Bar, p.
722, 2009 ed.).
Q: What is the effect of the pendency of an action
involving ownership on an action for forcible entry and
unlawful detainer?
A: It does not bar the filing of an ejectment suit, nor
suspend the proceedings. The underlying reason for this
rule is to prevent the defendant from trifling with the
summary nature of an ejectment suit by the simple
expedient of asserting ownership over the disputed
property (Tecson v. Gutierrez, G.R. No. 152978, March 4,
2005).
Note: Ejectment suits are not suspended or barred by other
actions. (Wilson Auto Supply Corp. v. CA, G.R. No. 97637, Apr. 10,
1992)
WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST
WHOM THE ACTION MAY BE MAINTAINED
Q: Who may institute the action?
A:
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
1. A person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or
2. other persons against whom the possession of any
land or building is unlawfully withheld after the
expiration or termination of the right to hold
possession, by virtue of any contract, express or
implied, or the legal representatives or assigns of any
such lessor, vendor, vendee, or other person, may, at
any time within one (1) year after such unlawful
deprivation or withholding of possession, bring an
action in the proper Municipal Trial Court against the
person or persons unlawfully withholding or depriving
of possession, or any person or persons claiming under
them, for the restitution of such possession, together
with damages and costs (Sec. 1 Rule 70).
Q: When can a lessor proceed against the lessee?
A: Unless otherwise stipulated, such action by the lessor
shall be commenced only after demand to pay or comply
with the conditions of the lease and to vacate is made upon
the lessee, or by serving written notice of such demand
upon the person found on the premises if no person be
found thereon, and the lessee fails to comply therewith
after fifteen (15) days in the case of land or five (5) days in
the case of buildings (Sec. 2, Rule 70).
PLEADINGS ALLOWED
Q: What are the pleadings allowed?
A: The only pleadings allowed to be filed are the complaint,
compulsory counterclaim and cross-claim pleaded in the
answer, and the answers thereto. All pleadings shall be
verified (Sec. 4, Rule 70).
Note: Within 10 days from service of summons, the defendant
shall file his answer to the complaint and serve a copy thereof on
the plaintiff. Affirmative and negative defenses not pleaded therein
shall be deemed waived, except lack of jurisdiction over the subject
matter. Cross-claims and compulsory counterclaims not asserted in
the answer shall be considered barred. The answer to
counterclaims or cross-claims shall be served and filed within ten
(10) days from service of the answer in which they are pleaded
(Sec. 6, Rule 70).
ACTION ON THE COMPLAINT
Q: What action will the court make upon receipt of the
complaint?
A: The court may, from an examination of the allegations in
the complaint and such evidence as may be attached
thereto, dismiss the case outright on any of the grounds for
the dismissal of a civil action which are apparent therein. If
no ground for dismissal is found, it shall forthwith issue
summons (Sec. 5, Rule 70).
WHEN DEMAND IS NECESSARY
Unless there exists a stipulation to the contrary, an
unlawful detainer case shall be commenced only after the
demand to pay or comply with the conditions of the lease
190
 CIVIL PROCEDURE
and to vacate is made upon the lessee (Sec. 2, Rule 70). The
requirement for a demand implies that the mere failure of
the occupant to pay rentals or his failure to comply with the
conditions of the lease does not ipso facto render his
possession of the premises unlawful. It is the failure to
comply with the demand that vests upon the lessor a cause
of action.
Q: What may constitute a demand in unlawful detainer?
A:
1. To pay and to vacate If the suit is based on
defendants failure to pay the rentals agreed upon.
2. To comply and to vacate If suit is predicated upon
the defendants non-compliance with the conditions of
the lease contract (Riano, Civil Procedure: A
Restatement for the Bar, p. 727, 2009 ed.)
Note: The notice giving the lessee the alternative either to pay the
increased rental or otherwise vacate the land is not the demand
contemplated by the Rules of Court in unlawful detainer cases.
When after such notice, the lessee elects to stay, he thereby
merely assumes the new rental and cannot be ejected until he
defaults in said obligation and necessary demand is first made
(Peas, Jr. vs. Court of Appeals G.R. No. 112734 July 7, 1994).
Q: In what form should the demand be made?
A: The demand may be in the form of a written notice
served upon the person found in the premises. The demand
may also be made by posting a written notice on the
premises if no person can be found thereon (Sec. 2, Rule
70). It has been ruled, however, that the demand upon a
tenant may be oral (Jakihaca vs. Aquino, 181 SCRA 67).
Sufficient evidence must be adduced to show that there
was indeed a demand like testimonies from disinterested
and unbiased witnesses.
Q: What is the effect of non-compliance with the demand?
A: If the lessee fails to comply therewith after fifteen (15)
days in the case of land or five (5) days in the case of
buildings, the lessor may now proceed against the lessee
(Sec. 2, Rule 70).
Q: When is prior demand in unlawful detainer not
required?
A:
1. Where the purpose of the action is to terminate the
lease by reason of expiry of its term;
2. Where the purpose of the suit is not for ejectment but
for the reinforcement of the terms of the contract; or
3. When the defendant is not a tenant but a mere
intruder.
4. When there is stipulation dispensing with a demand
(Art. 1169 NCC, Sec. 2 Rule 70).
Q: Ben sold a parcel of land to Del with right to repurchase
within 1 year. Ben remained in possession of the property.
When Ben failed to repurchase the same, title was
consolidated in favor of Del. Despite demand, Ben refused
to vacate the land, constraining Del to file a complaint for
unlawful detainer. In his defense, Ben averred that the
case should be dismissed because Del had never been in
possession of the property. Is Ben correct? (2008 Bar
Question)
A: No. In an action for unlawful detainer, it is not required
that the plaintiff be in prior physical possession of the land
subject of the action. In this action by the vendee a retro
against a vendor a retro who refused to vacate the property
even after title has been consolidated in the vendee, the
latter, in contemplation of law, steps into the shoes of the
vendor and succeeds to his rights and interest (Pharma
Industries Inc. v. Hon. Pajarillaga, G.R. No. L-53788, Oct. 17,
1980).
Q: What is the rule in case of tacita reconduccion in
relation to unlawful detainer?
A: Under Art. 1670 of NCC, if at the end of lease, the lessee
continues to enjoy the property leased for 15 days with
consent of the lessor, and no notice to the contrary has
been given, it is understood that there is an implied new
lease.
When there is tacit reconduccion, the lessee cannot be
deemed as unlawfully withholding the property. There is no
unlawful detainer (Riano, Civil Procedure: A Restatement for
the Bar, p. 730, 2009 ed.).
PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
Q: What is the remedy of the plaintiff in order to obtain
possession of the premises during the pendency of an
action?
A: The plaintiff may, within 5 days from filing of the
complaint file a motion in the same action for the issuance
of a writ of preliminary mandatory injunction to restore him
his possession. This motion shall be resolved within 30 days
from its filing (Sec. 15, Rule 70; Riano, Civil Procedure: A
Restatement for the Bar, p. 733, 2009 ed.).
Q: Can the court grant injunction while the case is
pending?
A: The court may grant preliminary injunction, in
accordance with the provisions of Rule 58 (Preliminary
Injunction), to prevent the defendant from committing
further acts of dispossession against the plaintiff. A
possessor deprived of his possession through forcible entry
or unlawful detainer may, within five (5) days from the
filing of the complaint, present a motion in the action for
forcible entry or unlawful detainer for the issuance of a writ
of preliminary mandatory injunction to restore him in his
possession. The court shall decide the motion within thirty
(30) days from the filing thereof (Sec. 15, Rule 70).
Note: If judgment is appealed to the Regional Trial Court, said
court may issue a writ of preliminary mandatory injunction to
restore the plaintiff in possession if the court is satisfied that the
defendant's appeal is frivolous or dilatory or that the appeal of the
plaintiff is prima facie meritorious (Sec. 20, Rule 70).
191 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
RESOLVING DEFENSE OF OWNERSHIP
Q: May the MTC determine the issue of ownership in
forcible entry and unlawful detainer cases?
A: Yes. In cases where defendant raises the question of
ownership in the pleadings and the question of possession
cannot be resolved without deciding the issue of
ownership, the court may proceed and resolve the issue of
ownership but only for the purpose of determining the
issue of possession. However, the disposition of the issue
of ownership is not final (provisional determination only),
as it may be the subject of separate proceeding specifically
brought to settle the issue (De la Rosa vs. Roldan, GR No.
133882, Sept. 5, 2006).
Note: The only issue involved in ejectment proceedings is as to
who is entitled to the physical or material possession of the
premises, that is, possession de facto and not possession de jure
(Regalado, Remedial Law Compendium, Vol. I, p. 874, 10th ed.).
Q: Is the judgment in forcible entry and unlawful detainer
cases conclusive as to the title to the property?
A: No. The judgment rendered in an action for forcible
entry or detainer is conclusive only as to possession of the
property. Said judgment does not bind the title or affect the
ownership of the land or building. A distinct and separate
action between the same parties respecting title to the land
or building may be had (Sec. 18, Rule 70).
Note: The assertion by the defendant of ownership over the
disputed property does not serve to divest the inferior court of its
jurisdiction. The defendant cannot deprive the court of jurisdiction
by merely claiming ownership of the property involved (Rural Bank
of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs. Cruz, 404
SCRA 487).
HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT
As a rule, judgment of the MTC against the defendant in
ejectment proceedings is immediately executory. However
in order to stay the immediate execution of judgment
defendant must take the following steps:
1. Perfect an appeal (in the same manner as in
ordinary civil actions, Rule 40);
2. File a supersedeas bond to pay for the rents,
damages and costs accruing down to the time of the
judgment appealed from; and
3. Deposit periodically with the RTC, during the
pendency of the appeal, the adjudged amount of rent
due under the contract or if there be no contract, the
reasonable value of the use and occupation of the
premises (Sec. 19, Rule 70).
Note: The order for the issuance of a writ of execution to
immediately enforce the judgment of the inferior court is
interlocutory and not appealable. Immediate execution is proper if
the judgment is in favor of the plaintiff. If the judgment is in favor
of the defendant with an award for damages under his
counterclaims, such judgment is not immediately executory and
can be executed only after the lapse of the 15-day period to appeal
without the plaintiff having perfected his appeal (Regalado,
Remedial Law Compendium, Vol. I, p. 901, 10th ed.).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: When is supersedeas bond not required?
A: Where the:
1. monetary award in the judgment of the inferior court
has been deposited with the court; or
2. Judgment of the lower court did not make findings
with respect to any amount in arrears, damages, or
costs against the defendant.
Q: Against whom is the judgment binding?
A: GR: Judgment in an ejectment case is binding only upon
the parties properly impleaded and given an opportunity to
be heard.
XPN: It becomes binding on anyone who has not been
impleaded in certain instances as in the following:
1. A sublessee is bound by the judgment against the
lessee because his right to the premises is merely
subsidiary to that of the lessee;
2. A guest or a successor in interest, the members of the
family of the lessee or his servants and employees are
likewise bound by the judgment even if not impleaded
in the suit for ejectment;
3. Trespassers, squatters or agents of the defendant
fraudulently occupying the property to frustrate the
judgment; and
4. Transferees pendente lite and other privies of the
defendant (Riano, Civil Procedure: A Restatement for
the Bar, p. 737, 2009 ed.).
Q: May an inferior court adjudicate and award actual
damages beyond the jurisdictional limit in ordinary civil
actions?
A: Yes. The amount of monetary award is immaterial to its
jurisdiction, the restoration of possession being primary
relief sought and to be granted (Regalado, Remedial Law
th
Compendium, Vol. I, p. 896, 10 ed.).
Note: The plaintiff, in ejectment cases, is entitled to damages
caused by his loss of the use and possession of the premises, but
not for damages caused on the land or building, which latter items
of damages should be recovered by plaintiff, if he is the owner, in
an ordinary action (Santos vs. Santiago, 38 Phil 575). However, it
has been held that plaintiff can recover from defendant liquidated
damages stipulated in the lease contract. (Gozon vs. Vda. De
Barrameda, L-17473, June 30, 1964; Regalado, Remedial Law
Compendium, Vol. I, p. 896, 10th ed)
SUMMARY PROCEDURE, PROHIBITED PLEADINGS
Q: What is the nature of actions for forcible entry and
unlawful detainer?
A: Forcible entry and unlawful detainer actions are
summary in nature designed to provide for an expeditious
means of protecting actual possession or the right to
192
 CIVIL PROCEDURE
possession of the property involved (Tubiano vs. Riazo, 335 tenant relation and therefore, not within the jurisdiction of
SCRA 531). ordinary courts.

This action shall both fall under the coverage of the Rules of CONTEMPT (RULE 71)
Summary Procedure irrespective of the amount of damages
or unpaid rental sought to be recovered (Sec. 3, Rule 70). Q: What is contempt?

Q: Do the rules of res judicata and conclusiveness of A: It is disobedience to the court by acting in opposition to
judgment apply in ejectment case? its authority, justice and dignity. It signifies not only willful
disregard or disobedience of courts orders, but such
A: Yes. But subject to the qualification that judgment is conduct as tends to bring the authority of court and
conclusive with respect to the right of possession under administration of law into disrepute or in some manner to
and by virtue of a contract the existence of which has been impede the due administration of justice (Regalado vs. Go,
proved in said ejectment suit (Penas vs. Tuason, 22 Phil GR No. 167988, Febraury 6, 2007, Riano, Civil Procedure: A
303; Regalado, Remedial Law Compendium, Vol. I, p. 897, Restatement for the Bar, p. 738, 2009 ed.).
th
10 ed.).
Q: What are the functions of contempt proceedings:
Q: What are the prohibited pleadings and motions under
Rule 70? A:
1. Vindication of public interest by punishment of
A: contemptuous conduct;
1. Motion to dismiss the complaint except on the ground 2. Coercion to compel the contemnor to do what the law
of lack of jurisdiction over the subject matter, or requires him to uphold the power of the court, and
failure to comply with a referral to the Lupon also to secure the rights of the parties to a suit
Tagapamayapa in cases covered by the LGC; awarded by the court (Regalado vs. Go, GR No.
2. Motion for a bill of particulars; 167988, Febraury 6, 2007, Riano, Civil Procedure: A
3. Motion for new trial, or for reconsideration of a Restatement for the Bar, p. 738, 2009 ed.).
judgment, or for reopening of trial;
4. Petition for relief from judgment; KINDS OF CONTEMPT
5. Motion for extension of time to file pleadings,
affidavits or any other paper; Q: What are the kinds of contempt?
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition A:
against any interlocutory order issued by the court; 1. According to nature (depending on the nature and
8. Motion to declare the defendant in default; effect of the contemptuous act)
9. Dilatory motions for postponement; a. Civil
10. Reply; b. Criminal
11. Third-party complaints; 2. According to the manner of commission
12. Interventions a. Direct
b. Indirect
Q: Aries filed an unlawful detainer case against Patrick
before the appropriate MTC. In his answer, Patrick avers PURPOSE AND NATURE
as a special and affirmative defense that he is a tenant of
Aries deceased father in whose name the property Q: What is the nature of contempt power?
remains registered. What should the court do? Explain
briefly. (2007 Bar Question) A: The power to punish for contempt is inherent in all
courts; its existence is essential to the preservation of order
A: The court should hold a preliminary conference not later in judicial proceedings and to the enforcement of
than 30 days after the defendants answer was filed, since judgments, orders and mandates of the courts, and,
the case is governed by summary procedure under Rule 70 consequently, to the due administration of justice.
of the Rules of Court, where a reply is not allowed. The
court should receive evidence to determine the allegations Q: Distinguish Criminal contempt from Civil Contempt?
of tenancy. If tenancy had in fact been shown to be the real
issue, the court should dismiss the case for lack of A:
jurisdiction. Criminal Contempt Civil Contempt
It is a conduct It is the failure to do
If it would appear that Patricks occupancy of the subject directed against the something ordered to be
property was one of agricultural tenancy, which is governed authority and dignity done by a court or a judge
by agrarian laws, the court should dismiss the case because of the court or a for the benefit of the
it has no jurisdiction over agricultural tenancy cases. judge acting judicially; opposing party therein and
Patricks allegation that he is a tenant of plaintiffs it is a conduct is therefore, an offense
deceased father suggests that the case is one of landlord- obstructing the against the party in whose

193 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

administration of behalf the violated order someone who has

justice which tends to was made (Riano, Civil pecuniary interest in the
bring the court into Procedure: A Restatement right to be protected
disrepute or for the Bar, p. 738, 2009 Proof required is Proof required is more than
disrespect (Riano, ed.). proof beyond mere preponderance of
Civil Procedure: A reasonable doubt. evidence
Restatement for the Note: If the purpose is to If accused is If judgment is for
Bar, p. 738, 2009 ed.). punish, it is criminal in nature acquitted, there can respondent, there can be an
but if to compensate, then it is
be no appeal. appeal
civil.

Purpose is to Purpose is to provide a

vindicate the remedy for an injured suitor
authority of the court and to coerce compliance
and protect its with an order for the
outraged dignity. preservation of the rights of
private persons
Proceedings should Proceedings are generally
be conducted in held to be remedial and civil
accordance with the in nature that is, for the
principles and rules enforcement of some duty,
applicable to criminal and essentially a remedy
cases, in so far as resorted to, to preserve and
such procedure is enforce the rights of a
consistent with the private party to an action
summary nature of and to compel obedience to
contempt a judgment intended to
proceedings. benefit such party litigant.
Punitive in nature Remedial in nature
Intent is necessary Intent is not necessary
State is the real Instituted by the aggrieved
prosecutor party or his successor or

Q: Distinguish direct contempt from indirect contempt

A:
Direct Contempt Indirect Contempt
Definition
A person guilty of misbehavior in the presence of or so Committed by a person who does the following acts:
near a court as to obstruct or interrupt the proceedings 4. Disobedience or resistance to a lawful writ, process,
before the same, including disrespect toward the court, order or judgment of a court;
offensive personalities toward others, or refusal to be 5. Any abuse of or any unlawful interference with the
sworn or to answer as a witness, or to subscribe an processes or proceedings of a court not constituting
affidavit or deposition when lawfully required to do so direct contempt; and
(Sec. 1, Rule 71). 6. Any improper conduct tending, directly or indirectly, to
impede, obstruct or degrade the administration of
justice (Siy vs, NLRC, GR No. 158971, Aug. 25, 2005).
Committed in the presence of or so near a court. Not committed in the presence of the court.
Summary in nature Punished after being charged and heard
Contempt in facie curiae Constructive contempt
Grounds
a. Misbehavior in the presence of or so near a court as to a. Misbehavior of an officer of a court in the
obstruct or interrupt the proceedings; performance of his official duties or in his official
b. Disrespect towards the court; transactions;
c. Offensive personalities toward others; or b. Abuse or any unlawful interference with the
d. Refusal to be sworn or to answer as a witness, or to proceedings not constituting direct contempt.
subscribe an affidavit or deposition when lawfully c. Disobedience of or resistance to a lawful writ, process,
required to do so (Sec. 1, Rule 71). order, or judgment of a court or unauthorized
intrusion to any real property after being ejected.

UNIVERSITY OF SANTO TOMAS 194

2013 GOLDEN NOTES
 CIVIL PROCEDURE
Penalty
The penalty for direct contempt depends upon the court
to which the act was committed;
a) If the act constituting direct contempt was
committed against an RTC or a court of
equivalent or higher rank, the penalty is a fine
not exceeding 2,000 pesos or imprisonment not
exceeding 10 days, or both;
b) If the act constituting direct contempt was
committed against a lower court, the penalty is a
fine not exceeding 200 pesos or imprisonment
not exceeding one (1) day, or both (Sec. 1, Rule
71);
c) If the contempt consists in the refusal or
omission to do an act which is yet within the
power of the respondent to perform, he may be
imprisoned by order of the court concerned until
he performs it.
Remedy
The person adjudged in direct contempt by any court may
not appeal therefrom, but may avail himself of the
remedies of special civil action of certiorari or prohibition
directed against the court, which adjudged him in direct
contempt (Sec. 2, Rule 71).
Pending the resolution of the petition for certiorari or
prohibition, the execution of the judgment shall be
suspended, provided such person files a bond fixed by the
court which rendered the judgment and conditioned that
he will abide by and perform the judgment should the
petition be decided against him (Sec. 2, Rule 71, Canada v.
Suerte, 474 SCRA 379).
How contempt proceedings are commenced
No formal proceeding is required to cite a person in direct 1. May be initiated motu proprio by the court against
contempt. The court against which the contempt is
directed may summarily adjudge a person in direct
contempt (Sec. 1 Rule 71; Encinas v. National Bookstore
Inc., 464 SCRA 572).
d. Failure to obey a subpoena duly served.
e. Assuming to be an attorney or an officer of the court
without authority.
f. Rescue or attempted rescue, of a person or property
in the custody of an officer.
g. Any improper conduct tending to degrade the
administration of justice (Sec. 3, Rule 71).
The punishment for indirect contempt depends upon the
level of the court against which the act was committed;
(a) Where the act was committed against an RTC or a
court of equivalent or higher rank, he may be punished by
a fine not exceeding 30,000 pesos or imprisonment not
exceeding 6 months, or both;
(b) Where the act was committed against a lower court,
he may be punished by a fine not exceeding 5,000 pesos
or imprisonment not exceeding one month, or both. Aside
from the applicable penalties, if the contempt consists in
the violation of a writ of injunction, TRO or status quo
order, he may also be ordered to make complete
restitution to the party injured by such violation of the
property involved or such amount as may be alleged and
proved (Sec. 7, Rule 71);
(c) Where the act was committed against a person or
entity exercising quasi-judicial functions, the penalty
imposed shall depend upon the provisions of the law
which authorizes a penalty for contempt against such
persons or entities.
Appeal (by notice of appeal)
The person adjudged in indirect contempt may appeal from
the judgment or final order of the court in the same manner
as in criminal cases. The appeal will not however have the
effect of suspending the judgment if the person adjudged in
contempt does not file a bond in an amount fixed by the
court from which the appeal is taken. This bond is
conditioned upon his performance of the judgment or final
order if the appeal is decided against him (Sec. 11, Rule 71).
which the contempt was committed by order or other
formal charge by the court requiring the respondent to
show cause why he should not be punished for
contempt; or
Note: This procedure appies only when the indirect contempt
is committed against a court of judge possessed and clothed
with contempt powers.
2. By a verified petition with supporting particulars and
certified true copies of the necessary documents and
papers (independent action; must comply with
requirements of an initiatory pleadings) (Sec. 4, Rule
71).
Note: If the contempt charges arose out of or are related to a
195 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Lawyer Mendoza, counsel for the accused in a criminal
case, was cited for direct contempt by Judge Tagle and
was sentenced to 10 days imprisonment. Lawyer Mendoza
was placed in prison immediately. Lawyer Mendoza
manifested his readiness to post a bond and to appeal the
order by certiorari to stay its execution but Judge Tagle
said that the order is immediately executory. Is Judge
Tagle correct?
A: No. An order of direct contempt is not immediately
executory or enforceable. The contemner must be afforded
a reasonable remedy to extricate or purge himself of the
contempt. Under Sec. 2, Rule 71, of the Rules of Court, a
person adjudged in direct contempt by any court may not
appeal therefrom, but may avail himself of the remedies of
certiorari or prohibition. The execution of the judgment
shall be suspended pending resolution of such petition,
provided such person files a bond fixed by the court which
rendered the judgment and conditioned that he will abide
by and perform the judgment should the petition be
decided against him (Tiongco v. Judge Salao, A.M. No. RTJ-
06-2009, July 27, 2006).
Q: What are the procedural requisites before the accused
may be punished for indirect contempt?
A:
1. A charge in writing to be filed;
2. An opportunity for the person charged to appear and
explain his conduct; and
3. To be heard by himself or counsel (Regalado v. Go,
G.R. No. 167988, Feb. 6, 2007).
Note: If a person charged with indirect contempt fails to appear on
that date after due notice without justifiable reason, the court may
order his arrest, just like the accused in a criminal case. The court
does not declare the respondent in default (Riano, Civil Procedure:
A Restatement for the Bar, p. 749, 2009 ed.).
Q: Where may the charge for indirect contempt be filed?
A: It depends upon the level of the court against which the
contempt was committed
1. Where the act was committed against a RTC or a court
of equivalent or higher rank, or against an officer
appointed by it, the charge may be filed with such
court.
2. Where the act was committed against a lower court,
the charge may be filed with the RTC in which the
lower court is sitting. It may also be filed in lower court
against which the contempt was allegedly committed.
The decision of the lower court is subject to appeal to
RTC.
3. Where the act was committed against persons or
entities exercising quasi-judicial functions, the charge
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
principal action pending in the court, the petition for contempt shall
allege that fact but said petition shall be docketed, heard and
decided separately, unless the court in its discretion orders the
consolidation of the contempt charge and the principal action for
joint hearing and decision (Sec. 4, Rule 71).
shall be filed in RTC of the place wherein the contempt
was committed (Sec. 12, Rule 71, (Riano, Civil
Procedure: A Restatement for the Bar, p. 749, 2009
ed.).
Q: May a non-party be held for contempt?
A: No, unless he is guilty of conspiracy with any one of the
parties in violating the courts orders (DesaEnt., Inc. v. SEC,
G.R. No. L-45430, Sept. 30, 1982).
Q: Ray, through Atty. Velasco, filed a complaint for
quieting of title against Chiz. Chiz, however, interposed
the defense that the documents relied upon by Ray and
Atty. Velasco were forged and falsified. Finding that the
said documents were indeed forged and falsified, Judge
Victoria cited Ray and Atty. Velasco for direct contempt
and ordered them to serve 10 days of detention at the
Municipal Jail. Ray and Atty. Velasco filed a motion for bail
and a motion to lift the order of arrest. But they were
denied outright by Judge Victoria. Is Judge Victoria
correct?
A: No. Direct contempt is a contumacious act done facie
curiae and may be punished summarily without hearing.
Indirect or constructive contempt, in turn, is one
perpetrated outside of the sitting of the court.
Here the use of falsified and forged documents is a
contumacious act. However, it constitutes indirect
contempt not direct contempt. The imputed use of a
falsified document, more so where the falsity of the
document is not apparent on its face, merely constitutes
indirect contempt, and as such is subject to such defenses
as the accused may raise in the proper proceedings. Thus,
following Sec. 3, Rule 71, a contemner may be punished
only after a charge in writing has been filed, and an
opportunity has been given to the accused to be heard by
himself and counsel.
Moreover, settled is the rule that a contempt proceeding is
not a civil action, but a separate proceeding of a criminal
nature in which the court exercises limited jurisdiction.
Thus, the modes of procedure and the rules of evidence in
contempt proceedings are assimilated as far as practicable
to those adapted to criminal prosecutions. Thus, the judge
erred in declaring summarily that Ray and Judge Velasco
are guilty of direct contempt and ordering their
incarceration. He should have conducted a hearing with
notice to Ray and Judge Velasco (Judge Espaol v. Formoso,
G.R. No. 150949, June 21, 2007).
196
 CIVIL PROCEDURE

A: The rules on contempt apply to contempt committed

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT
Q: What are the acts which are deemed punishable as
indirect contempt?
A: After a charge in writing has been filed, and an
opportunity given to the respondent to comment thereon
within such period as may be fixed by the court and to be
heard by himself or counsel, a person guilty of any of the
following acts may be punished for indirect contempt:
1. Misbehavior an officer of a court in the performance
of his official duties or in his official transactions;
2. Disobedience of or resistance to a lawful writ, process,
order, or judgment of a court, including the act of a
person who, after being dispossessed or ejected from
any real property by the judgment or process of any
court of competent jurisdiction, enters or attempts or
induces another to enter into or upon such real
property, for the purpose of executing acts of
ownership or possession, or in any manner disturbs
the possession given to the person adjudged to be
entitled thereto;
3. Any abuse of or any unlawful interference with the
processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
4. Any improper conduct tending, directly or indirectly,
to impede, obstruct, or degrade the administration of
justice;
5. Assuming to be an attorney or an officer of a court,
and acting as such without authority;
6. Failure to obey a subpoena duly served;
7. The rescue, or attempted rescue, of a person or
property in the custody of an officer by virtue of an
order or process of a court held by him (Sec. 3, Rule
71).
against persons or entities exercising quasi-judicial
functions or in case there are rules for contempt adopted
for such bodies or entities pursuant to law, Rule 71 shall
apply suppletorily. Quasi-judicial bodies that have the
power to cite persons for indirect contempt can only do so
by initiating them in the proper RTC. It is not within their
jurisdiction and competence to decide the indirect
contempt cases. The RTC of the place where contempt has
been committed shall have jurisdiction over the charges for
indirect contempt that may be filed (Sec. 12, Rule 71; LBP
vs. Listana, GR No. 152611, Aug. 5, 2003).
Note: Other acts or violations cannot be punished as contumacious
conduct by administrative or quasi-judicial entities unless the
governing law specifically defines such violation as contempt of
court , or it unequivocally authorizes said official or body to punish
contempt, providing at the same time the corresponding penalty
(People vs. Mendoza, et. al, 92 Phil 570; Regalado, Remedial Law
Compendium, Vol. I, p. 922, 10th ed.).
Q: Does a city council have the power to subpoena
witness and to punish non-attendance for contempt?
A: A city council does not have the power since there is
neither a constitutional nor statutory conferment on it of
such powers. Unlike Congress whose contempt power is sui
generis and inheres in it as a coordinate branch of the
government, no such power can be implied in the
legislative functions delegated to local legislative bodies,
especially since the contempt power is essentially of a
judicial nature (Negros Oriental II Electric Cooperative, Inc.,
et. al., vs. Sangguniang Panlungsod of Dumaguete, et. al.,
GR No. 72492. Nov. 5, 1987; Regalado, Remedial Law
th
Compendium, Vol. I, p. 922, 10 ed.).

Note: Failure by counsel to inform the court of the

death of his client constitutes indirect contempt within
the purview of Sec. 3, Rule 71, since it constitutes an
improper conduct tending to impede the administration
of justice.

WHEN IMPRISONMENT SHALL BE IMPOSED

Q: When shall imprisonment be imposed?

A: When the contempt consists in the refusal or omission to

do an act which is yet in the power of the respondent to
perform, he may be imprisoned by order of the court
concerned until he performs it (Sec.8, Rule 71). Indefinite
incarceration may be resorted to where the attendant
circumstances are such that the non-compliance with the
court order is an utter disregard of the authority of the
court which has then no other recourse but to use its
coercive power.

CONTEMPT AGAINST QUASI-JUDICIAL BODIES

Q: What is the rule on contempt against quasi-judicial

bodies?

197 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW

Q: Distinguish an Ordinary action and Special Civil Action from a special proceeding.
A:
Ordinary Action
To protect or enforce a
right or prevent or redress
a wrong
Involves 2 or more parties
plaintiff and defendant petitioner because it is an application
Governed by ordinary
rules, supplemented by
special rules
Initiated by a complaint,
and parties respond
through an answer
Heard by courts of general
jurisdiction
Issues or disputes are
stated in the pleadings of
the parties
Adversarial
Based on a cause of action
Q: What are the subject matters of special proceedings?
A:
Rules Special Proceeding
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
REMEDIAL LAW
SPECIAL PROCEEDINGS
Special Proceeding Special Civil Action
Involves the establishment of a right, Civil Action subject to specific
status, or fact rules.
May involve only one party only Involves two or more parties
for relief against the whole world or a
proceeding in rem, not an action to
enforce a right against a particular
individual, except for correction or
cancellation of entries under Rule 108,
in which case, the Local Civil Registrar
should be impleaded as a respondent
Governed by special rules, Ordinary rules apply primarily
supplemented by ordinary rules if but subject to specific rules
applicable like rule on payment of
docket fees and the requirement of
certification against forum shopping
(Sheker v. Estate of Alice Sheker, G.R.
157912 [2007])
Initiated by a petition and parties Some are initiated by
respond through an opposition complaint, while some are
initiated by petition
Heard by courts of limited jurisdiction Heard by courts of general
jurisdiction
Issues are determined by law Issues or disputes are stated in
the pleadings of the parties
Not adversarial except for correction or Some are adversarial while
cancellation of entries under Rule 108 some are not adversarial
(it may be summary or adversarial
depending on what is sought to be
rectified)
Not based on a cause of action except Some special civil action does
habeas corpus not require a cause of action
Jurisdiction Venue
198
 SPECIAL PROCEEDINGS
Rules 73-90 Settlement of Estate RTC - Gross value of the
of Deceased Persons estate exceeds P300,000 if
outside Metro Manila or
P400,000 if within Metro
Manila
MTC - Gross value of the
estate is P300,000 or less if
outside Metro Manila or
P400,000 or less if within
Metro Manila (Sec. 3, RA
7691)
Note: MTC jurisdiction is
exclusive of interest, damages of
whatever kind, attorneys fees,
litigation expenses and costs
Rule 91 Escheat RTC (Sec. 1, Rule 91, Rules of
Court)
Rules 92-97; Guardianship Family Court In case of
A.M. No. 03- minors (Sec. A.M. No. 03-02-
02-05-SC 05-SC)
RTC In cases of
incompetents other than
minors (Sec. 1,Rule 92, Rules
of Court)
Rule 98 Trustees RTC - Gross value of the
estate exceeds P300,000 if
outside Metro Manila or
P400,000 if within Metro
Manila
MTC - Gross value of the
estate is P300,000 or less if
outside Metro Manila or
P400,000 or less if within
Metro Manila
Rule 103 Change of name RTC (Sec. 1)
Rule 108 Cancellation or RTC (Sec.1)
correction of entries
199
1. If resident of the
Philippines (whether
citizen or alien)- Court of
the province/ city where
the deceased resides at the
time of death
2. If non- resident - court of
any province/ city wherein
he had estate
1. Ordinary escheat
proceedings: RTC
a. If resident- place where
the deceased last resided
b. If non-resident- place
where he had estate
2. Reversion of land to the State
for violation of the
Constitution/ Laws- RTC
where the land lies in whole
or in part
3. Unclaimed deposits (for 10
years) - RTC of the city/ province
where the bank is located
Note: All banks located in 1
province where the court is
located may be made party-
defendant in an action.
1. If resident- place where
minor/ incompetent
resides
2. If non-resident- place
where minor/ incompetent
has property
Where the will was allowed or
where the property or
portion thereof affected by
the trust is situated
Where petitioner resides for the
last 3 years prior to the filing of
the petition
Where the corresponding civil
registry is located
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

in the civil registry

RA 9048 as 1. Administrative Local civil registry/Consul Local civil registry office where
amended by correction of general (Sec. 3) the record is kept/where the
R.A. No. entry/change of first interested party is presently
10172 name or nickname residing or domiciled
effective 2. Correction of date
August 15, of birth with regard
2012 to day and month of
birth but not the
year of birth
3. Change of sex of a
person where it is
patently clear that
there was a clerical
or typographical
error or mistake in
the entry
4. Clerical or
typographical errors
which can be
corrected by the
civil registry.
Rule 107 Declaration of RTC (Sec.1) Where the absentee resided
absence and death before his disappearance
A.M. No. 00- Corporate RTC designated as Where principal office of the
8-10-SC rehabilitation commercial court corporation is situated
B.P. 68 Voluntary SEC (Sec. 118-120, Where principal office of
(Corporation dissolution of Corporation Code) corporation is situated
Code) corporation
Rule 101 Hospitalization of RTC (Sec. 1) Where such insane person may
insane person be found
A.M. No. 02- Domestic Adoption Family Court (Sec. 6) Where the adopter resides
06-02-SC
A.M. No. 02- Rescission of Family Court (Sec. 20) Where the adoptee resides
6-02-SC Adoption
A.M. No. 02- Inter-country Family Court or the Inter- Where the adopter resides
6-02-SC Adoption Country Adoption Board
A.M. No. 03- Custody of Minors Family Court (Sec. 3) Where petitioner resides or
04-04-SC where the minor may be found
Rule 105 Judicial Approval of Family Court (Sec. 1) Where the child resides
Voluntary
Recognition of
Minor Natural
Children
A.M. No.02- Declaration of Family Court (Sec. 3[b]) Where petitioner or respondent
11-10-SC nullity of void has been residing for at least 6
marriage/ months prior to the date of filing
Annulment of In case of non-resident
marriage respondent, where he may be
found at the election of the
petitioner
A.M. No. 02- Legal Separation Family Court (Sec. 2[c]) Where petitioner or respondent
11-11-SC has been residing for at least 6
months prior to the date of filing
In case of non-resident
respondent, where he may be
found at the election of the
petitioner
Art. 40, Petition for judicial RTC Where the petitioner resides
Family Code permission to marry

UNIVERSITY OF SANTO TOMAS 200

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

Family Code Summary Family Court (Sec.5, R.A. Where the petitioner resides or
Proceedings 8369) where the child resides if it
involves minors
R.A. 8369 Actions mentioned in the Family Courts Act
1. Petitions on Family Court Where petitioner or respondent
Foster care and has been residing for at least 6
Temporary months prior to the date of
Custody filing
2. Declaration of In case of non-resident
Nullity of respondent, where he may be
Marriage found at the election of the
3. Cases of petitioner
Domestic
Violence
Against Women
and Children
Rule 102 Habeas Corpus SC, CA, RTC, MTC in the Where the aggrieved party is
province or city in case there detained (RTC)
is no RTC judge; SB only in aid
of its appellate jurisdiction
(Sec. 2)
A.M. No. Habeas Corpus in Where the petitioner resides or
03-04-04- Relation to Custody Family Court, CA, SC (Sec. 20) where the minor may be found
SC of Minors ( Note: petition may be filed
with the regular court in the
absence of the presiding judge
of the Family Court, provided,
however, that the regular
court shall refer the case to
the Family Court as soon as its
presiding judge returns to
duty)
A.M. No. Writ of Amparo RTC, SB, CA or SC or any Where the threat, act or
07-9-12-SC justice thereof (Sc. 3) omission was committed or any
of its elements occurred
A.M. No. Writ of habeas data RTC, SB, CA or SC or any Where the petitioner or
08-1-16-SC justice thereof (Sec. 3) respondent resides, or that
which has jurisdiction over the
place where the data or
information is gathered,
collected or stored, at the
option of the petitioner
A.M. No. Writ of Kalikasan SC or any stations of CA (Sec. Where the unlawful act,
09-6-8-SC 3, Rule 7) omission or threat was
committed

Q: What is the publication requirement in special proceedings?

A:
Special Proceeding Publication of Order of Hearing
Clerical or typographical errors;administrative change of first Once a week for 2 consecutive weeks
name or nickname, the day and month in the date of birth or
sex of a person where it is patently clear that there was a
clerical or typographical error or mistake in the entry
Corporate rehabilitation
Settlement of estate of deceased persons Once a week for 3 consecutive weeks
Judicial change of name
Judicial cancellation or correction of entries in the civil registry
Domestic adoption
Inter-country adoption
Voluntary dissolution of corporation
(Except shortening of corporate term)

201 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Declaration of absence Once a week for 3 consecutive weeks

Note: The declaration of absence shall not take effect until six (6)
months after its publication in a newspaper of general circulation.
Escheat Once a week for 6 consecutive weeks
Guardianship None
Trustees
Custody of minors
Hospitalization of insane person
Rescission of adoption
Correction of clerical or typographical error
Habeas corpus
Writ of amparo
Writ of habeas data
Writ of kalikasan
1. Petitions on foster care and temporary custody
2. Cases of domestic violence against women and children
Summary proceedings

Note: In declaration of nullity or annulment of marriage or legal separation, service of summons may be through publication once a week for 2
consecutive weeks.

Q: Who should be notified in special proceedings?

A:
Special proceeding To whom notice must be given
Settlement of estate of deceased persons Executor/administrator/any interested party
Trustees All persons interested on the trust
Hospitalization of insane person On the person alleged to be insane and to the one having
charge of him or any of his relatives
Judicial change of name Interested parties/Solicitor General
Judicial cancellation or correction of entries in the civil registry Persons named in the petition/Solicitor General/Civil Registrar
impleaded as respondent
Declaration of absence and death Heirs/legatees/devisees/creditors/other interested persons
Corporate rehabilitation Creditors/Debtors
Voluntary dissolution of corporation Creditors
Administrative correction of entry/ change of first name or Interested parties
nickname
Guardianship The minor if above 14 years of age/incompetent
himself/Interested parties on the property of the ward.
General or special notice may be given.
Domestic Adoption Biological parents/Solicitor General
Rescission of Adoption Adopter
Inter-country Adoption Biological parents, if any/guardian
Custody of Minors Biological parents/guardian if any
Habeas corpus To the person to which the writ is directed
Writ of amparo Respondent
Writ of habeas data Respondent
Writ of kalikasan Respondent
Summary proceedings Respondent and interested party
1. Petitions on foster care and temporary custody Solicitor General/Public Prosecutor
2. Cases of domestic violence against women and
children
Declaration of nullity of void marriage / Annulment of City/Provincial Prosecutor/ Respondent
marriage
Legal separation City/Provincial prosecutor/ Respondent
Escheat None

UNIVERSITY OF SANTO TOMAS 202

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

SETTLEMENT OF ESTATE OF DECEASED PERSONS, VENUE parties as by entering into extrajudicial partition of the
AND PROCESSES estate (Sandoval v. Santiago, L- 1723, May 30, 1949); or by
filing another petition for settlement in a proper court of
WHICH COURT HAS JURISDICTION concurrent venue (De Borja v. Tan, 77 Phil 872).

Regional Trial Court Metropolitan Trial Note: The prohibition of filing an action relating to the estate
Court other than in the probate court where the petition for the
settlement of estate was filed refers only to courts in the
Gross value of the Gross value of the
Philippines and does not include foreign courts. Hence, in no
estate exceeds estate is P300,000 or way can it be validly maintained that the District Court of Hawaii
P300,000 (outside less (outside Metro has encroached upon, or impinged on, the jurisdiction of the
Metro Manila) or Manila) or P400,000 probate court by the issuance of an order directing the
exceeds P400,000 (within Metro Manila) investigation of the alleged commission of torture during the
(within Metro Manila) Marcos administration for a claim against his estate (Republic v.
Villarama Jr. G.R. No. 117733, September 5, 1997).
VENUE IN JUDICIAL SETTLEMENT OF ESTATE
XPN: Estoppel by Laches
Resident Non-Resident
Note: The rule applies to both testate and intestate proceedings
Court of the Court of the
(Intestate Estate of Wolfson, 45 SCRA 381 June 15, 1972).
province/city where the province/city wherein
deceased resided at the he had estate
EXTENT OF JURISDICTION OF PROBATE COURT
time of death, whether
a citizen or alien
Q: May probate courts determine issues of ownership in a
proceeding for the settlement of estate of decedent?
Q: Is venue waivable? Explain.
A: Yes. Wrong venue is a waivable procedural defect, and A: GR: No, because probate courts are courts of limited
such waiver may occur by laches where a party had been jurisdiction.
served notice of the filing of the probate petition for a year
and allowed the proceedings to continue for such time XPNS:
before filing a motion to dismiss. 1. Provisionally, for the sole purpose of including the
property in the inventory, without prejudice to its
Note: Jurisdiction under Rule 73 does not relate to jurisdiction per
final determination in a separate action;
se but to venue. Hence institution in the court where the decedent
is neither an inhabitant nor had his estate may be waived (Uriarte 2. When all the parties agreed to submit the issue of
v. CFI, G.R. Nos. L-21938-39, May 29, 1970). ownership to the probate court, provided that no
rights of third persons are prejudiced;
Q: What constitutes residence? 3. If the question is one of collation or advancement
(Agpalo, Handbook on Special Proceedings, pp. 10-
A: It is the personal, actual, physical habitation, his actual 12, 2003 ed.).
residence or place of abode (Fule v. CA, G.R. No. L-40502,
Nov. 29, 1976) not his permanent legal residence or Q: The probate court ordered the inclusion of a parcel of
domicile. land registered in the name of Richard in the inventory of
the properties of the deceased Anna. Richard opposed the
Q: What is the Principle of Preferential Jurisdiction? inclusion arguing that the probate court cannot determine
the issue of the ownership of the parcel of land inasmuch
A: GR: The probate court first taking cognizance of the as the same was registered in his name. Is Richard
settlement of the estate of the decedent shall exercise correct?
jurisdiction to the exclusion of all other courts (Sec. 1 of
Rule 73). It has exclusive jurisdiction over said estate and no A: Yes. In probate proceedings, if a property covered by
other special proceedings involving the same subject Torrens title is involved, the presumptive conclusiveness of
matter may be filed before any other court. It cannot be such title should be given due weight, and in the absence of
divested of such jurisdiction by the subsequent acts of the strong compelling evidence to the contrary, the holder

203 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
thereof should be considered as the owner of the property
in controversy until his title is nullified or modified in an
appropriate ordinary action, particularly, when as in the
case at bar, possession of the property itself is in the
persons named in the title (Luy Lim v. CA, G.R. No. 124715,
Jan. 24, 2000).
Q: What may the court do in the exercise of its probate
jurisdiction?
A: It may issue warrants and processes to compel the
attendance of witnesses or carry into effect their orders
and judgments and all other powers granted them by law
(Sec. 3, Rule 73).
Q: May the probate court issue a writ of execution?
A: GR: No, because its orders usually refer to the
adjudication of claims against the estate which the
executor or administrator may satisfy without the necessity
of resorting to a writ of execution.
XPNS:
1. To satisfy the contributive share of the devisees,
legatees and heirs when the latter had entered prior
possession over the estate (Sec. 6, Rule 88);
2. To enforce payment of the expenses of partition (Sec.
3, Rule 90); and
3. To satisfy the costs when a person is cited for
examination in probate proceedings (Sec. 13, Rule 142)
Q: Can a declaration of heirship be made in an
independent action?
A:
1. If the special proceedings are pending, or if there are
no special proceedings filed but there is a need to file
one, then the determination of heirship should be
raised and settled in said special proceedings.
2. If the special proceeding had been instituted but had
been finally closed and terminated, or if a putative heir
has lost the right to have himself declared in the
special proceedings as co-heir and he can no longer
ask for its re-opening, then an ordinary civil action can
be filed for his declaration as heir in order to bring
about the annulment of the partition or distribution or
adjudication of properties belonging to the estate of
the deceased (Portugal and Portugal, Jr. v. Portugal-
Beltran, G.R. No. 155555, Aug. 16, 2005).
Q: Where should the estate be settled if the marriage is
dissolved by death of either spouse or both?
A: When the marriage is dissolved by the death of the
husband or wife, the community property shall be
inventoried, administered and liquidated, and the debts
thereof paid, in the testate or intestate proceedings of the
deceased spouse. If both spouses have died, the conjugal
partnership shall be liquidated in the testate or intestate
proceedings of either (Sec. 2, Rule 73).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: If separate proceedings have been instituted for each estate,
both proceedings may be consolidated if they were filed in the
same court. The rule on consolidation in settlement proceedings
for husband and wife exclusively applies to them. It does not apply
to siblings, parents and child or other relatives no matter how close
(Benigno v. de la Pea, G.R. No. L-38036, Oct. 15, 1932).
POWERS AND DUTIES OF PROBATE COURT
Q: What are the powers and duties of a Probate Court?
A: In probate proceedings, the court:
1. Orders the probate of the will of the decedent
2. Grants letters administration
3. Supervises and controls all acts of administration
4. Hears and approves claims against the estate of the
deceased
5. Orders payment of lawful debts
6. Authorizes sale, mortgage or any encumbrance of real
estate
7. Orders the payment of taxes and other charges
8. Directs the delivery of the estate to those entitled
thereto.
Note: The court acts as a trustee and as such must jealously guard
the estate and see to it that it is wisely and economically
administered, not dissipated (Timbol v. Cano, 111 Phil 923, 926).
Q: What are the specific powers and duties of a probate
court?
A:
1. To pass upon the issue regarding the validity of the will
(i.e. formalities required by law)
2. Distribute shares
3. Determine who are the legal heirs
4. Issue warrants and processes to secure attendance of
witnesses
5. Determine and rule upon issues relating to settlement
of the estate, such as administration, liquidation, and
distribution of the estate
6. Determine the following:
a. Heirs of the decedent;
b. Recognition of an illegitimate child;
c. Validity of disinheritance effected by testator;
d. Status of a person who claims to be the lawful
spouse of the decedent ;
e. Validity of waiver of hereditary heirs;
f. Status of each heir;
g. Whether property in the inventory is conjugal or
exclusive property of deceased spouse; or
h. Matters incidental or collateral to the settlement
and distribution of the estate.
MODES OF SETTLEMENT OF ESTATES
Q: What are different modes of settlement of estate of a
deceased person?
A:
1. Extrajudicial settlement Where the decedent left no
will and no debts and heirs are all of age, or the minors
are represented by their representatives duly
204
 SPECIAL PROCEEDINGS
authorized for the purpose, court proceedings are no
longer necessary, but the formal requisites must be
complied with (Sec. 1, Rule 74).
2. Judicial settlement where proceedings in court is
necessary, and includes the following:
a. Summary settlement of estate of small value
Whenever the gross value of the estate of a
deceased person, whether he died testate or
intestate, does not exceed P10,000, the court
may proceed summarily, without the
appointment of an executor or administrator
(Sec. 2, Rule 74).
b. Testate proceedings When the decedent left a
last will and testament (Rules 75-79).
c. Intestate proceedings When the decedent died
without a will, or died with a will but was found
invalid and thereafter disallowed (Rule 79).
d. Partition When there is no will and the parties
entitled to the estate would agree on the project
of partition (Rule 69).
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT BETWEEN
HEIRS, WHEN ALLOWED
Q: When is extra judicial settlement by agreement
between the heirs allowed? (Substantial Requisites)
A: When the decedent:
1. Left no will and no debts; and the heirs are all of
age; and
2. The minors are represented by their judicial or legal
representatives duly authorized for the purpose
(Sec. 1, Rule 74).
Note: While the Rules of Court provide that the decedent
must not have left any debts, it is sufficient if any debts he
may have left have been paid at the time the extrajudicial
settlement is entered into (Guico v. Bautista, G.R. No. L-
14921, Dec. 31, 1960). It is a disputable presumption that the
decedent left no debts if no creditor files a petition for letters
of administration within two years after the death of the
decedent.
Q: What are the procedural requisites for making an
extrajudicial settlement of estate?
A:
1. Settlement is made in a public instrument or by
affidavit of adjudication in the case of a sole heir;
Note: In case of disagreement of heirs, they may state their
oppositions in an ordinary action of partition.
2. Filed with the Register of Deeds;
3. Fact of settlement must be published in a newspaper
of general circulation once a week for 3 consecutive
weeks; and
4. Bond filed with the Register of Deeds equivalent to the
value of personal property (Sec. 1, Rule 74).
Note: If the estate consists of real property, no bond is required
because it will be subjected to a lien in favor of creditors, heirs or
205
other persons for a period of 2 years from distribution.
Furthermore, such lien cannot be substituted by a bond.
Q: Is a public instrument necessary for the validity of the
extrajudicial settlement?
A: No, the requirement of public instrument is not
constitutive of the validity but is merely evidentiary in
nature (Hernandez v. Andal, G.R. No. L-273, Mar. 23, 1947).
Even a private instrument, oral agreement of partition or
compromise agreement entered into without previous
authority from the court is valid. However, reformation of
the instrument may be compelled (Borja vs. Vda. De Borja,
46 SCRA 577).
Note: An extrajudicial settlement made in a private document can
be used to compel the other heirs to execute a public instrument
to transfer title over the property since a public instrument is
required in the transfer and registration of title to the heirs.
Q: What is the effect of an extra-judicial partition
executed without the knowledge and consent of the other
co-heirs?
A: It shall not prejudice the co-heir who had no knowledge
nor consented to the same. He shall have the right to
vindicate his inheritance. Such heir or such other person
deprived of his lawful participation payable in money may
compel the settlement of the estate in courts for the
purpose of satisfying such lawful participation (Sec. 4, Rule
74).
Note: This provision only applies to compulsory heirs entitled to a
share in the estate, but not to those excluded by heirs in the direct
line/descending line according to the rules of succession.
Q: Why is publication of the extrajudicial settlement
necessary?
A: To notify and bind the whole world of the extrajudicial
settlement and give the concerned parties a chance to
come forward and challenge the same (Sec. 1, Rule 74).
Note: Publication alone does not suffice to bind the excluded heirs
to the extrajudicial settlement unless he participated in the
proceedings.
Q: What is the effect if the provisions on notice and
participation have been strictly complied with?
A: It bars the distributees or heirs from objecting to an
extrajudicial partition after the expiration of two years from
such extrajudicial partition (Sampilo v. CA, 103 Phil.71)
Q: When can settlement of estates in courts be
compelled?
A:
1. The existence of debts against the estate;
2. If there is undue deprivation of lawful participation
payable in money (Sec. 4, Rule 74).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

the filing of the public MTC

TWO-YEAR PRESCRIPTIVE PERIOD instrument with the
Register of Deeds.
Q: When does the two year period rule apply? The value of the estate is Gross value of the estate
immaterial must not exceed P10,000
A: After the expiration of two years from the extrajudicial Allowed only in intestate Allowed in both testate
partition, distributees or heirs are barred from objecting to succession and intestate succession
an extra- judicial partition. However, the two year There must be no Available even if there are
prescriptive period applies only: outstanding debts of the debts. it is the court which
1. To persons who have participated or taken part or had estate at the time of the will make provision for its
notice of the extrajudicial partition; and settlement payment
2. When all the persons or heirs of the decedent have Resorted at the instance May be instituted by any
taken part in the extrajudicial settlement or are and by agreement of all interested party even a
represented by themselves or through their guardians. heirs creditor of the estate
without the consent of all
Q: Does the two-year period apply for a claim of minor or the heirs
incapacitated person? Amount of bond is equal Amount of bond is to be
to the value of personal determined by the court
A: No. If on the date of the expiration of the period of two property. If it is a real irrespective of whether the
years prescribed, the person authorized to file a claim is a property, it is subject to estate consists of real or
(1) minor or (2) mentally incapacitated, or (3) is in prison or a lien for a period of 2 personal property
(4) outside the Philippines, he may present his claim within years
one year after such disability is removed (Sec. 5, Rule 74).
Publication of notice of Publication of notice once
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE HEIR
the fact of extrajudicial a week for 3 consecutive
settlement once a week weeks; court may likewise
An affidavit required by Sec.1, Rule 74 to be executed by
for three consecutive order that notice be given
the sole heir of a deceased person in adjudicating to
weeks in a newspaper of to persons as the court
himself the entire estate left by the decedent.
general circulation may direct.
SUMMARY SETTLEMENT OF ESTATES OF SMALL VALUE
There is also a hearing to
be held not less than one
It is a judicial proceeding, without appointment of executor
month nor more than 3
or administrator, and without delay, wherein the
months from the date of
competent court summarily proceeds to estimate the value
last publication of notice.
of estate of the decedent; allow his will if any; declare his
heirs, devisees, and legatees; distribute his net estate
among them, who shall thereupon be entitled to receive
and enter into the possession of the parts of the estate so
awarded to them, respectively.

Note: The date of hearing shall be set by the court not less than
one month, nor more than 3 months from the date of publication
of last notice and the order of hearing shall be published once a
week for 3 consecutive weeks in a newspaper of general
circulation.

Q: When is summary settlement of estates of small value

allowed?

A: When gross estate does not exceed P10,000, irrespective

of whether there is a will or none. Moreover, such amount
is jurisdictional (Sec. 2, Rule 74).

Q: What is the difference between an extrajudicial

settlement and a summary settlement of estate of small
value?

A:
EXTRA JUDICIAL SUMMARY SETTLEMENT
SETTLEMENT OF ESTATE
No court intervention. Requires summary
There is compliance by adjudication filed with the
UNIVERSITY OF SANTO TOMAS 206
2013 GOLDEN NOTES

REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-JUDICIAL SETTLEMENT OF ESTATE AND SUMMARY SETTLEMENT OF ESTATE
CLAIM AGAINST THE BOND OR
REAL ESTATE
COMPEL THE SETTLEMENT OF
ESTATE IN COURTS
ORDINARY ACTION BUT NOT
AGAINST THE BOND
ACTION FOR RESCISSION
(APPLICABLE IN BOTH
EXTRAJUDICIAL SETTLEMENT OR
SUMMARY SETTLEMENT)
ACTION FOR RECONVEYANCE OF
REAL PROPERTY
(APPLICABLE IN BOTH
EXTRAJUDICIAL SETTLEMENT OR
SUMMARY SETTLEMENT)
ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL SETTLEMENT OR
JUDGMENT IN SUMMARY
SETTLEMENT
REOPENING OF THE
PROCEEDINGS BY MOTION IN
SUMMARY SETTLEMENT
SPECIAL PROCEEDINGS
OF SMALL VALUE
GROUNDS: (Section 4, Rule 74)
a. If there is undue deprivation of lawful participation in the estate;
b. Existence of debts against the estate.
Should be brought within 2 years after settlement and distribution of the estate
Should be brought within 2 years after settlement and distribution of the estate
If the order of closure has already become final and executory, the heir must file an
independent civil action of accion reivindicatoria to recover his deprived share.
Note: It must be brought within 10 years from the time the right of action accrues [Art. 1144(c)].
After the lapse of two years an ordinary action may be instituted against the distributees
within the statute of limitations but not against the bond.
Also applicable in judicial proceedings not covered by summary settlement of estate of
small value.
If there is preterition of compulsory heir tainted with bad faith (Art 1104, NCC).
It must be availed of within 5 years from the time the cause of action accrues (Art. 1149,
NCC).
Also applicable in judicial proceedings not covered by summary settlement of estate of
small value.
GR: It is based on an implied or constructive trust due to fraud which prescribes in 10
years from the date of registration or date of issuance of certificate of title or from actual
discovery of fraud if the registration was made in bad faith. (Lagujum v. Viola)
XPN: Within 4 years from discovery of fraud if the heir adversely held the property such as
obtaining a title and if title is registered from date of registration (Gerona v. De Guzman). If
there is no adverse possession, then the action is imprescriptible (Villamor v. Court of
Appeals).
Also applicable in judicial proceedings not covered by summary settlement of estate of
small value.
On the ground of fraud which should be filed within 4 years from the discovery of fraud.
Upon motion of a person who either:
a. Has a legal interest in the matter in litigation;
b. Has such legal interest in the success of either of the parties, or an interest against
both; or
c. Is so situated as to be adversely affected by the distribution of property in the
custody of the court or of an officer.
May be availed of after judgment but before the finality of the closure order
207 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Also applicable in judicial proceedings not covered by summary settlement of estate of

small value.
PETITION FOR REOPENING OF If proceedings are already closed and the heir is excluded, within a prescriptive period of
PROCEEDINGS 10 years.
(SUMMARY SETTLEMENT)
Also applicable in judicial proceedings not covered by summary settlement of estate of
small value.
MOTION TO DELIVER SHARE If the heir is not excluded but failed to receive his share
(EXTRAJUDICIAL SETTLEMENT
AND SUMMARY SETTLEMENT) Also applicable in judicial proceedings not covered by summary settlement of estate of
small value.
On grounds of fraud, accident, mistake, and excusable negligence within 60 days after
PETITION FOR RELIEF (SUMMARY petitioner learns of the judgment, final order or other proceeding to be set aside, and not
SETTLEMENT) more than 6 months after such judgment or final order was entered (Rule 38). Also
applicable in judicial proceedings.

Q: May an order denying probate of will be overturned make a partition of his property by an act inter vivos or by
after period to appeal has lapsed? Why? (2002 Bar will, such partition shall stand in so far as it does not
Question) prejudice the legitime of the forced heir (Mang- Oy v. CA, G.R.
No. L-27421, 1986).
A: Yes. A petition for relief may be filed on the grounds of
3. IMPRESCRIPTIBLE- because of the public policy to obey
fraud, accident, mistake or excusable negligence within a
the will of the testator
period of 60 days after the petitioner learns of the
judgment or final order and not more than 6 months after
4. DOCTRINE OF ESTOPPEL DOES NOT APPLY- The probate
such judgment or final order was entered (Secs. 1&3, Rule
of the will is mandatory. The presentation and probate of
38). An action for annulment may also be filed on the
the will is required by public policy. It involves public
ground of extrinsic fraud within 4 years from its discovery,
interest (Fernandez v. Dimagiba, L- 23638, 1967).
and if based on lack of jurisdiction, before it is barred by
laches or estoppel (Secs. 2&3, Rule 47).
5. RES JUDICATA once allowed, by the court, it can no
longer be questioned, irrespective of any erroneous
PRODUCTION AND PROBATE OF WILL
judgment because it serves as the law of the case (Balais v.
Balais, L-33924, 1988).
NATURE OF PROBATE PROCEEDING
Q: Does the probate court look into the intrinsic validity of
Q: What is probate?
the will?
A: Probate is the act of proving before a competent court
A: GR: No. The jurisdiction of probate court is limited to
the due execution and validity of a will by a person
the examination and resolution of the extrinsic validity of a
possessed of testamentary capacity, as well as the approval
will.
thereof by said court (also known as Allowance of Will)
nd
(Tabingan, Special Proceedings, p. 75, 2 Ed)
XPNS: Principle of practical considerations wherein the
court may pass upon the intrinsic validity of the will:
Q: Why is probate necessary?
1. If the case where to be remanded for probate of the
will, it will result to waste of time, effort, expense, plus
A: To settle all questions concerning the capacity of the
added anxiety; as in the case of absolute preterition
testator and the proper execution of his will, irrespective of
without any provision in favor of any devises or
whether its provisions are valid and enforceable (Fernandez
legatee (Nuguid v. Nuguid, G.R. No. L-23445, June 23,
v. Dimagiba, G.R. No. L-23638, Oct. 12, 1967).
1966).
2. Where the entire or all testamentary dispositions are
Q: What is the nature of a probate proceeding?
void and where the defect is apparent on its face
(Nepomuceno v. CA, G.R. No. L-62952, Oct. 9, 1985).
A:
1. IN REM- It is binding upon the whole world (Tabingan,
nd Q: What should the court do if, in the course of intestate
Special Proceedings, p. 76, 2 Ed.).
proceedings, a will is found and it is submitted for
probate? Explain. (2002 Bar Question)
2. MANDATORY- No will shall pass either real or personal
property unless it is proved and allowed in the proper court
A: The intestate proceeding will be suspended until the will
(Sec.1, Rule 75).
is probated, thereby giving priority to the testate
proceedings. Consequently, all the powers of the
Note: However, a will may be sustained on the basis of Article
1080 of the NCC which states that, if the testator should administrator shall cease and the administrator shall

UNIVERSITY OF SANTO TOMAS 208

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

forthwith surrender the letters to the court and render his

account within such time as the court directs. Q: How should a will be proved?

WHO MAY PETITION FOR PROBATE A:

Will Uncontested Contested
1. Executor (Sec. 1, Rule 76);
Notarial The court may All the subscribing
2. Devisee or legatee named in the will (Sec. 1, Rule 76);
will grant allowance witnesses and the
3. Person interested in the estate; e.g. heirs
thereof on the notary public must
testimony of one testify as to due
Note: An interested party is one who would be benefited by
the estate, such as an heir, or one who has a claim against the
of the execution and
estate such as a creditor (Sumilang v. Ramagosa, G.R. No. L- subscribing attestation of the
23135, Dec. 26, 1967). witnesses only, if will (Sec. 11, Rule
such witness 76).
4. Testator himself during his lifetime (Sec. 1, Rule 76); or testifies that the
5. Any creditor as preparatory step for filing of his claim will was
therein. executed as is
required by law
Q: Who are the people entitled to notice in a probate (Sec. 5, Rule 76).
hearing? Holographic At least one The will shall be
will witness who allowed if at least
A: knows the three witnesses
1. Designated or known compulsory heirs, legatees and handwriting and who know the
devisees of the testator resident in the Philippines at signature of the handwriting of the
their places of residence, at least 20 days before the testator testator explicitly
hearing, if such places of residence be known. explicitly declare that the will
2. Person named executor, if he not the petitioner. declares that the and signature are in
3. To any person named as co-executor not petitioning, if will and the handwriting of
their places of residence be known. signature are in the testator (Sec.
4. If the testator asks for the allowance of his own will, the handwriting 11, Rule 76).
notice shall be sent only to his compulsory heirs (Sec. of the testator
4, Rule 76). (Sec. 5, Rule 76).

ALLOWANCE OR DISALLOWANCE OF A WILL
CONTENTS OF PETITION FOR ALLOWANCE FOR WILL
1. Jurisdictional facts:
i. Death of the testator and
ii. His residence at the time of his death
iii. If non- resident, the province where the estate
was left
2. The names, ages and residences of the heirs, legatees
and devisees of the testator or decedent.
3. The probable value and character of the property of
the estate.
4. The name of the persons for whom letters are prayed.
5. The name of the person having custody of the will if it
has not been delivered to the court (Sec. 2, Rule 76).
Note: No defect in the petition shall render void the allowance of
the will or the issuance of letters testamentary or of administration
with the will annexed (Ibid.).
Q: What is the effect of the allowance of a will?
A: The judgment or decree of the court allowing the will is:
1. Conclusive as to its extrinsic validity;
2. Not subject to collateral attack and it stands as final, if
not modified, set aside, or revoked by a direct
proceeding, or reversed on appeal by a higher court;
and
3. Conclusive on the whole world (Yuseco v. CA, G.R. Nos.
L-40719-21, Dec. 29, 1975).
Note: In the absence of competent witness, and if the court deems
it necessary, expert testimony may be resorted to (Sec. 5, Rule 76).
Q: What is the remedy if none of the subscribing
witnesses resides in the province where probate is being
conducted?
A: A motion for taking of deposition of one or more of them
(Sec. 7, Rule 76).
Note: The court may also authorize photographic copy of the will
to be made and to be presented to the witness on his examination,
who may be asked questions with respect to matters pertaining to
the will (Sec. 7, Rule 76).
Q: What are the instances when the court may admit the
testimony of witnesses other than the subscribing
witnesses?
A:
1. The subscribing witnesses are dead or insane; or
2. None of them resides in the Philippines (Sec. 8, Rule
76).
Q: What matters shall be testified on by the other
witnesses?
A:
1. The sanity of the testator; and
2. Due execution of the will (Sec 8, Rule 76).

209 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What proof is necessary if the testator himself files the Q: What is the Substantial Compliance Rule?
petition for probate of his holographic will and no contest
is filed? A: If the will has been executed in substantial compliance
with the formalities of the law, and the possibility of bad
A: The fact that he affirms that the holographic will and the faith and fraud is obviated, said will should be admitted to
signature are in his own handwriting shall be sufficient probate (Art. 809, NCC).
evidence of the genuineness and due execution thereof. In
such case, the burden of disproving the genuineness and Note: Separate wills which contain essentially the same provisions
due execution thereof shall be on the contestant. The and pertain to properties which in all probability are conjugal in
testator may, in his turn, present such additional proof as nature, practical considerations dictate their joint probate (Vda. de
Perez v. Tolete, GR 76714, June 2, 1994).
may be necessary to rebut the evidence for the contestant
(Sec. 12, Rule 76).
REPROBATE; REQUISITES BEFORE WILL PROVED OUTSIDE
ALLOWED IN THE PHILIPPINES
Q: What is the rule on proof of lost or destroyed will?
Q: What is reprobate?
A: If it is a notarial will, it shall not be proved as a lost or
destroyed will unless the execution and validity of the same
A: It is a special proceeding to establish the validity of a will
be established, and the will is proved to have been in
proved in a foreign country (Bernardo, Special Proceedings,
existence at the time of death of the testator, or is shown
p. 48, 2006 ed.).
to have been fraudulently or accidentally destroyed in the
lifetime of the testator without his knowledge, nor unless
Q: What are the requisites before a will proven outside
its provisions are clearly and distinctly proved by at least
the Philippines be allowed here?
two (2) credible witnesses (Sec. 6, Rule 76, Rules of Court).
In this case, a photostatic or machine copy of the will
A:
coupled with the testimonies of the attesting witnesses will
1. The testator was domiciled in a foreign country;
suffice.
2. The will has been admitted to probate in such country;
3. The foreign court is, under the laws of said foreign
If holographic will, a photostatic copy or xerox copy of the
country, a probate court with jurisdiction over the
lost will would not suffice. But if there are no other copies
proceedings;
available then a photostatic or machine copy would suffice
4. Proof of compliance with the law on probate
to serve as a comparison to the standard writings of the
procedure in said foreign country;
testator. No testimonies of witnesses is allowed because
5. The legal requirements in said foreign country for the
the will was made entirely by the testator himself (Bonilla
valid execution of the will have been complied with;
vs. Aranz, G.R. No. L-58509, Dec. 7, 1982).
6. Filing a petition in the Philippines with copy of the will
and of its decree of allowance; and
Q: What are the requisites for allowance of a lost or
7. Notice and hearing (PCIB v. Escolin, G.R. No. 76714,
destroyed will?
June 2, 1994).
A: No will shall be proved as a lost or destroyed will unless:
Note: Under the doctrine of processual presumption, there must
1. Its execution and validity is established; be evidence to prove the existence of foreign law, otherwise the
2. It must have been in existence at the time of the death court should presume that the law of the foreign country is the
of the testator, or is shown to have been fraudulently same as Philippine laws.
or accidentally destroyed during the lifetime of the
testator without his knowledge; and The necessity of presenting evidence on the foreign laws upon
3. Its provisions must be clearly and distinctly proved by which the probate in the foreign court is based is impelled by the
at least 2 credible witnesses (Sec. 6, Rule 76). fact that our courts cannot take judicial notice of them (Salud
Teodoro Vda. de Perez v. Hon. Zotico A. Tolete, 232 SCRA 722).
GROUNDS FOR DISALLOWING A WILL
EFFECTS OF REPROBATE
1. If not executed and attested as required by law;
Q: What are the effects of reprobate?
2. If the testator was insane, or otherwise mentally
incapable to make a will, at the time of its execution;
A:
3. If it was executed under duress, influence of fear, or
1. The will shall have the same effect as if originally
threats;
proved and allowed in the Philippines (Sec. 3, Rule 77);
4. If it was procured by undue and improper pressure or
2. Letters testamentary or administration with a will
influence, on the part of the beneficiary, or of some
annexed shall extend to all estates of the testator in
other person for his benefit; or
the Philippines (Sec. 4, Rule 77); and
5. If the signature of the testator was procured by fraud
3. Such estate, after the payment of just debts and
or trick, and he did not intend that the instrument
expenses of administration, shall be disposed of
should be his will at the time of fixing his signature
according to the will, so far as such will, may operate
thereto (Sec. 9, Rule 76).
upon it, and the residue, if any, shall be disposed of as
provided by law in cases of estates in the Philippines
UNIVERSITY OF SANTO TOMAS 210
2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

belonging to persons who are inhabitants of another after he knows of the

country (Sec. 4, Rule 77). death of the testator or
after he knew that he
Note: As a general rule, administration extends only to the assets was appointed as
of the decedent found within the state or country where it was executor (if he obtained
granted, so that an administrator appointed in one state or country such knowledge after
has no power over property in another state or country (Herrera,
the death of the
Remedial Law, Vol. III-A, p. 77, 2005 ed.).
testator), unless the will
Q: What is Ancillary Administration? has reached the court in
any manner
A: When a person dies intestate owning property in the Testator may provide Bond is always required
country of his domicile as well as in a foreign country, that he may serve unless exempted by
administration shall be had in both countries. That which is without a bond (BUT law.
granted in the jurisdiction of the decedents domicile is court may direct him to
termed the principal administration, while any other give a bond conditioned
administration is termed ancillary administration (Ibid.). only to pay debts)
Compensation may be Compensation is
provided for by the governed by Sec. 7,
testator in the will, Rule 85
LETTERS TESTAMENTARY AND OF ADMINISTRATION otherwise Sec 7, Rule 85
will be followed
WHEN AND TO WHOM THE LETTERS OF ADMINISTRATION
GRANTED Q: What are the bases of compensation of the executor or
administrator?
Q: Who can administer the estate?
A:
A: 1. GR: That provided by the will, in case of an executor;
1. Executor named by the testator in his will for the
administration of his property after his death; XPN: Unless there is a written instrument filed in the
2. Administrator appointed by the court in accordance court which he renounces all claim to the
with the Rules or governing statutes to administer and compensation provided by law.
settle the intestate testate; or
3. Administrator with a will annexed appointed by the 2. If there is no compensation provided, the
court in cases when, although there is a will, the will compensation shall be either:
does not appoint any executor, or if appointed, said a. P4.00 per day for the time actually and
person is either incapacitated or unwilling to serve as necessarily employed;
such. b. Commission upon the value of so much of the
estate as comes into his possession and finally
Note: Any competent person may serve as executor or disposed of by him; or
administrator. There may be several executors named in the will. c. 2% of the first P5,000, 1% in excess of P5,000 up
Letters testamentary may issue to such of them as are competent, to P3,000, % in excess of P30,000 up to
accept and give bond (Sec. 4, Rule 78). If the named executor does P100,000 and % in excess of P100,000 (Sec. 7,
not qualify, then an administrator may be appointed (Sec. 6, Rule Rule 85).
78).
Q: How will the compensation be apportioned if there are
Q: What are the differences between an executor and an two or more executors or administrators?
administrator?
A: It shall be apportioned among them by the court
A: according to the services actually rendered by them
EXECUTOR ADMINISTRATOR respectively (Sec. 7, Rule 85).
Nominated by the Appointed by the court
testator and appointed in case the testator did Q: Can an administrator recover attorneys fees from the
by court not appoint an executor estate?
or if the executor
refused appointment A: No because his compensation is fixed by the rule and
(administration with a such compensation is in the nature of executors or
will annexed) or if the administrators commissions, and never as attorneys fees
will was disallowed or if (Sec. 7, Rule 85).
the person did not make
a will (intestate Q: What is the remedy of a lawyer who was hired by
succession) executor/administrator in collecting attorneys fees?
Must present will to the No such duty.
court within 20 days A:

211 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

1. Request the administrator to make payment and file
an action against him in his personal capacity and not
as administrator should he fail to pay; or
2. Petition in the testate or intestate proceeding asking
the court, after notice to all persons interested, to
allow his claim and direct the administrator to pay it as
an expense of administration (Occena v. Marquez, G.R.
No. L-28693, Sept. 30, 1974).
3. Such other person as the court may select if there is no
such creditor competent and willing to serve (Sec. 6,
Rule 78).
Note: Order of preference may be disregarded for a valid cause.
Administration may be granted to such other person as the court
may appoint in case the persons who have the preferential rights
to be appointed are not competent or are unwilling to serve
(Villamor v. CA, 162 SCRA 574).

Q: Who are incompetent to serve as executor or

Q: What is the rationale behind the order of preference in
administrator?
appointing an administrator?
A:
A: The underlying assumption behind this rule is that those
1. Minors;
who will reap the benefits of a wise, speedy and
2. Non-residents of the Philippines; and
economical administration of the estate or on the other
3. Those who, in the opinion of the court, are unfit to
hand, suffer the consequences of waste, improvidence or
execute the duties of the trust by reason of
mismanagement, have the higher interest and most
drunkenness, improvidence, want of understanding or
influential motive to administer the estate correctly
integrity, or conviction of an offense involving moral
(Gonzales v. Aguinaldo, G.R. No. 74769, Sept. 28, 1990).
turpitude (Sec. 1, Rule 78).
4. Executor of an executor over the estate of the first
This is likewise the same consideration which the law takes
testator (Sec., Rule 78).
into account in establishing the preference of the widow to
administer the estate of her husband upon the latters
Q: What authority is issued to the person who administers
death, because she is supposed to have an interest therein
the estate?
as a partner in a conjugal partnership [De Guzman v.
Limcolioc, 67 Phil 404 (1939)].
A:
1. Letters testamentary authority issued to an executor
Q: When may co-administrators be appointed?
named in the will to administer the estate;
2. Letters of administration authority issued by the
A:
court to a competent person to administer the estate
1. To have the benefit of their judgment and perhaps at
of the deceased who died intestate; or
all times to have different interests represented
3. Letters of administration with a will annexed
(Gonzales vs. Aguinaldo et al., 140 SCRA 112 (1990));
authority issued by the court to a competent person to
2. Where justice and equity demand that opposing
administer the estate of the deceased if the executor
parties or factions be represented in the management
named in the will refused to accept the office, or is
of the estate of the deceased (Vda. De Dayrit vs.
incompetent.
Ramolete, 117 SCRA 608 (1982));
3. Where the estate is large or, from any cause, an
ORDER OF PREFERENCE
intricate and perplexing one to settle (Herrera,
Remedial Law, Vol. III-A, p. 86, 2005 ed);
Q: State the order of preference in granting letters of
4. To have all interested persons satisfied and the
administration.
representatives to work in harmony for the best
interest of the estate (ibid); or
A: If no executor is named in the will, or the executors are
5. When a person entitled to the administration of an
incompetent, refuse the trust, or fail to give the bond, or a
estate desires to have another competent person
person dies intestate, administration shall be granted to:
associated with him in the office (Gabriel v. CA, G.R.
1. The surviving spouse or next of kin, or both, in the
No. 101512, Aug. 7, 1992).
discretion of the court, or to such person as such
surviving spouse or next of kin, requests to have Note: The purpose of having co-administrators is to have the
appointed, if competent and willing to serve benefit of their judgment and perhaps at all times to have different
interests represented, especially considering that in this
Next of kin are the heirs entitled to receive a just share proceeding they will respectively represent the legitimate and
in accordance with the rule on distribution of the illegitimate groups of heirs to the estate (Gabriel v. CA, 212 SCRA
estate. 413, Aug. 7,1992).

2. The principal creditors, if competent and willing to
serve, if the surviving spouse or next of kin, or the
person selected by them be incompetent or unwilling
or if the surviving spouse or next of kin neglects for 30
days after the death of the person to apply for
administration or to request that administration be
granted to some other person
OPPOSITION TO ISSUANCE OF LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF PETITION FOR
ADMINISTRATION
Q: Who may oppose the issuance of letters testamentary
or administration?

UNIVERSITY OF SANTO TOMAS 212

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS
A: Any person interested in the will may file a written
opposition (Sec. 1, Rule 79).
Note: In order to be a party, a person must have material and
direct, not indirect or contingent. (Herrera, Remedial Law, Vol. III-A
2005 ed., p. 91)
Q: What are the grounds for opposing a petition for
administration?
A: Any interested person may, by filing a written
opposition, contest the petition on the ground of the:
1. Incompetency of the person for whom letters are
prayed therein; or
2. Contestant's own right to the administration (Sec. 4,
Rule 79).
Note: Letters of administration may be granted to any qualified
applicant, though it appears that there are other competent
persons having better right to the administration, if such persons
fail to appear when notified and claim the issuance of letters to
themselves (Sec. 6, Rule 79).
Q: Is the order of Appointment of Regular Administrator
final and appealable?
A: Yes. The order of appointment of a regular administrator
is appealable. Where no notice is required by Sec. 3, Rule
79 of the Rules of Court has been given to persons believed
to have an interest in the estate of the deceased person;
the proceeding for the settlement of the estate is void and
should be annulled. The requirement as to notice is
essential to the validity of the proceeding in order that no
person may be deprived of his right to property without
due process of law (Herrera, Remedial Law, Vol. III-A, p. 94,
2005 ed.).
Q: When is bond required to be filed?
A: GR: Before an executor or administrator enters upon the
execution of his trust (Sec. 1, Rule 81).
Note: The term and effectivity of the bond do not depend on
payment of premium and does not expire until the
administration is closed. As long as the probate court retains
jurisdiction of the estate, the bond contemplates a continuing
liability (Luzon Surety v. Quebrar, G.R. No. L-40517, Jan. 31,
1984).
XPN: The executor may serve without a bond if the testator
so directs, or with only his individual bond, conditioned
only to pay the debts of the testator (Sec. 2, Rule 81).
Q: What are the conditions of the bonds?
A:
1. Make within 3 months a true and complete inventory
of the property of the deceased which came to his
knowledge and possession;
2. Administer the estate and pay and discharge all debts,
legacies and charges, including dividends declared by
the court from the proceeds;
3. Render a true and just account within 1 year and when
required by the court;
4. Perform all orders of the court (Ibid.).
213
Q: When may the court require a further bond?
A: The court may require further bond when there is:
1. Change in circumstances of the executor or
administrator or for other sufficient cause (Sec. 2, Rule
81);
2. Sale, mortgage, or encumbrance of the property of the
estate conditioned that such administrator or executor
will account for the proceeds of the sale or
encumbrance (Sec. 7, Rule 89).
Q: May the probate court order the forfeiture of the
administrators bond?
A: Yes, because the execution or forfeiture of an
administrators bond is deemed to be necessary and an
incident of administration proceedings, as much as its filing
and the fixing of its amount. Therefore, the probate court
may have the bond executed in the same proceedings (Phil.
Trust Co. v. Luzon Surety Co., G.R. No. L-13031, May 30,
1961).
Q: State the rule on bonds in case of joint executors or
administrators.
A: The court may take separate bonds from each or a joint
bond from all (Sec. 3, Rule 81).
POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS; RESTRICTIONS ON THE POWERS
Q: What are the general powers of an administrator or an
executor?
A:
1. In case of a deceased partner:
a) To have access to, and examine and take copies
of books and papers relating to the partnership
b) To examine and make invoices of the property
belonging to the partnership
2. To maintain in tenantable repairs, houses and other
structures and fences and to deliver the same in such
repair to the heirs or devisees when directed so to do
by the court
3. To make improvements on the properties under
administration with the necessary court approval
except for necessary repairs
4. To possess and manage the estate when necessary for
the payment of debts; and payment of expenses of
administration (Rule 84).
Q: What should be done by the executor or administrator
to freely exercise his rights and duties?
A: He shall submit a written application to the court having
jurisdiction of the estate (Sec. 1, Rule 84).
Q: What are the restrictions on the powers of
administrator or executor?
A:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

1. He cannot acquire by purchase, even at public or

judicial action, either in person or mediation of
another, the property under administration (Art. 1491
NCC, par. 3);
2. He cannot borrow money without authority from the
court;
3. He cannot speculate with funds under administration;
4. He cannot lease the property under administration for
more than 1 year;
Note: The administrator has the power to enter into lease
contracts involving the properties of the estate even without
prior judicial authority and approval (Mananquil v. Villegas,
A.M. No. 2430, Aug. 30, 1990), only if the period of such lease
contract do not extend beyond one year.
5. He cannot continue the business of the deceased
unless authorized by the court; and
6. He cannot profit by the increase or decrease in the
value of the property under administration;
7. He cannot exercise the right of legal redemption over
a portion of the property owned in common sold by
one of the other co-owners.
APPOINTMENT OF SPECIAL ADMINISTRATOR
A: The appointment should be within the sound discretion
of the court. The fundamental and legal principles
governing the choice of a regular administrator should also
be taken into account in the appointment of a special
administrator (Herrera, Vol. III-A, p. 99, 2005 ed.).
Note: Notice through publication is still necessary for the
appointment of a special administrator as mandated by Sec. 3, Rule
79 of Rules of Court. (De Guzman v. Angeles, L-78590 [1988])
Q: What are the powers and duties of a special
administrator?
A:
1. Possess and take charge of the goods, chattels, rights,
credits and estate of the deceased;
2. Preserve the same;
3. Commence and maintain suit for the estate;
Note: While a special administrator may commence and
maintain suits under Sec. 2 Rule 80, he cannot be sued by a
creditor for the payment of the debts of the deceased (De
Gala v. Gonzales, et al. 53 Phil 104). Such suit must await the
appointment of a regular administrator.

Q: When may a probate court appoint a special 4. Sell only:

administrator? a. Perishable property; and
b. Other property ordered sold by the court;
A: 5. Pay debts only as may be ordered by the court (Sec. 2,
1. When there is delay in granting letters testamentary or Rule 80).
of administration by any cause including an appeal 6. Submit an inventory and render an accounting of his
from the allowance or disallowance of a will (Sec. 1, administration as required by the terms of his bond
Rule 80); or (Sec 4, Rule 81).
2. When the executor or administrator is a claimant
against the estate he represents (Sec. 6, Rule 86). The Q: When do the powers of special administrator cease?
special administrator shall have the same powers as
that of a general administrator. A: After the questions causing the delay are resolved and
letters testamentary or administration are granted to
Note: Only one special administrator at a time may be appointed, executor or regular administrator (Sec. 1, Sec. 80).
since the appointment is merely temporary. When appointed, a
special administrator is regarded, not as a representative of the Q: Does the order of preference in the appointment of
agent of the parties suggesting the appointment, but as the regular administrators apply to the appointment of special
administrator in charge of the estate, and in fact, as an officer of administrators?
the court subject to the supervision and control of the probate
court (Corona v. CA, 116 SCRA 316).
A: No, but such order of preference may be followed by the
judge in the exercise of sound discretion (Matias v.
Q: Why is there a need for appointing a special
Gonzales, G.R. No. L- 13391, May 25, 1960).
administrator?
Q: What are the differences between a regular
A: The principal object is to preserve the estate until it can
administrator and a special administrator?
pass into the hands of persons fully authorized to
administer it for the benefit of the creditors and heirs (De
A:
Guzman v. Guadiz, G.R. No. L-48585, Mar. 31, 1980).
REGULAR ADMINISTRATOR SPECIAL ADMINISTRATOR
Note: The order appointing a special administrator is an
Order of appointment may Order of appointment is
interlocutory order and the court making the appointment retains be the subject of an appeal interlocutory and hence not
control over it to modify, rescind, or revoke the same on sufficient appealable
grounds at any time before final judgment. No appeal lies from the One of the obligations is to Cannot pay the debts of the
appointment of a special administrator. (Esler v. Tad-y, G.R. No. L- pay the debts of the estate estate unless ordered by
20902, Oct. 9, 1923; Herrera, Remedial Law, Vol. III-A, p. 102, 2005 the court
ed)
Appointed when the Appointed when there is
deceased died intestate or delay in granting letters
Q: What are the qualifications of a special administrator? did not appoint an executor testamentary or

UNIVERSITY OF SANTO TOMAS 214

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

in the will or the will was administration
disallowed
GROUNDS FOR REMOVAL OF ADMINISTRATOR
Q: What are the grounds for the removal of an executor or
administrator?
A:
1. Neglect to render an account and settle the estate
according to law;
2. Neglect to perform an order or judgment of the court,
or a duty expressly provided by the Rules;
3. When he absconds;
4. When he becomes insane; or
5. When he becomes incapable or unsuitable to
discharge the trust (Sec. 2, Rule 82).
Note: These grounds are not exclusive. The position of the
administrator is one of confidence and when the court finds that
the administrator is not entitled to such confidence, it is justified in
withdrawing the appointment and giving no valid efficacy thereto.
(Cobarrubias v. Dizon, G.R. No. L-225, Feb. 26, 1946)
Q: What are the other grounds for removal of an executor
or administrator?
A:
1. Death;
2. Resignation;
3. An administrator who disbursed funds of the estate
without judicial approval. (Cotia vs. Jimenez, 104 Phil.
960);
4. False representation by an administrator in securing
his appointment (Cabarubbias vs. Dizon, 76 Phil. 209);
5. An administrator who holds an interest adverse to that
of the estate or by his conduct showing his unfitness to
discharge the trust (Garcia vs. Vasquez, 32 SCRA 490);
6. An administrator who has the physical inability and
consequent unsuitability to manage the estate (De
Borja vs. Tan, 93 Phil. 167).
Q: What is the status of the act made prior to the
revocation, resignation, or removal of an executor or
administrator?
A: The effect of revocation of letters testamentary or of
administration is to terminate the authority of the executor
or administrator, but the acts of the executor or
administrator, done in good faith prior to the revocation of
the letters will be protected, and similar protection will be
extended to rights acquired under a previous grant of
administration [Vda. de Bacaling v. Laguda, et al., 54 SCRA
243 (1973)].
Note: The rules provide for same grounds for removal/revocation
between executor and administrator except in case of the ground
of revocation of administration if a will of decedent is discovered
(Sec. 1, Rule 82, Rules of Court).
Q: What are the duties of administrator upon revocation
of the letters?
A:
1. Surrender the letters to the court; and
2. Render his account within such time as the court may
direct (Sec. 1, Rule 82).
Q: What are the powers of a new executor or
administrator after the first one resigns or is removed?
A:
1. To collect and settle the estate not administered;
2. To prosecute or defend actions commenced by or
against the former executor or administrator; and
3. To recover execution on judgments in the name of
former executor or administrator.
An authority granted by the court to the former executor or
administrator for the sale or mortgage of real estate may
be renewed in favor of such person without further notice
or hearing (Sec. 4, Rule 82).
Q: Is the executor or administrator chargeable with all the
estate and income of the deceased?
A: GR: The executor or administrator is accountable for the
whole estate of the deceased.
XPN: He is not accountable for properties which never
came to his possession.
XPN to the XPN: When through untruthfulness to
the trust or his own fault or for lack of necessary
action, the executor or administrator failed to
recover part of the estate which came to his
knowledge (Sec. 1, Rule 85).
Q: When is the executor or administrator liable for
damages?
A: The executor or administrator is liable for damages
when:
1. He neglects or unreasonably delays to raise money, by
collecting the debts or selling the real or personal
estate of the deceased (Sec. 5, Rule 85);
2. He neglects to pay over the money he has in his hands;
3. The value of the estate is lessened;
4. Unnecessary cost or interest accrues; and
5. The persons interested suffer loss (Sec. 6, Rule 85).
Q: What are expenses of administration?
A: They refer to those necessary for the management of the
property, for protecting it against destruction or
deterioration, and possibly for the production of fruits (De
Guzman v. De Guzman-Carillo, G.R. No. L-29466, May 18,
1978).
Note: The following are not considered as necessary expenses:
1. Expenses on the anniversary of the death of the deceased;
2. Expenses incurred by a presumptive heir for her appearance
and that of her witnesses at the trial to oppose the probate of
an alleged will;
3. Expenses for the settlement of the question as who are
entitled to the estate left by the deceased;
4. Expenses incurred by the executor or administrator to
procure a bond;

215 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
5. Personal expenses of the occupant of the heir of the family
residences;
6. Expenses for stenographic notes, unexplained representation
expenses (Herrera, Remedial Law, Vol. III-A, p.122, 2005 ed.)
CLAIMS AGAINST THE ESTATE
Q: What is a claim?
A: These are money claims of a pecuniary nature which
could have been enforced against the deceased in his
lifetime and could have been reduced to simple money
judgments.
Q: What claims against the estate of the decedent must be
presented in the settlement court in the testate or
intestate proceedings?
A: Only the following, which survive, must be presented:
1. All claims for money against the decedent, arising from
contract, express or implied, whether the same be
due, not due, or contingent;
2. All claims for funeral expenses;
3. Expenses for the last sickness of the decedent; or
4. Judgment for money against the decedent (Sec. 5, Rule
86).
Note: If the defendant dies during the pendency of the action
against him, the rule on substitution of parties will be followed and
any adverse decision against him may be filed by the plaintiff as a
claim against the estate.
If the defendant dies after an adverse decision was rendered
against him without having levied any property, then the plaintiff
may file his claim against the estate.
If the defendant dies after an adverse decision was rendered
against him, and after a levy was made, then execution shall
proceed, without the need of filing a claim against the estate.
Q: What is an absolute claim?
A: It is one which, if contested between living persons,
would be the proper subject of immediate legal action and
would supply a basis of judgment for a sum certain (Moran,
1980 Ed. 487).
Q: What is contingent claim?
A: It is a conditional claim, which is subject to the
happening of a future uncertain event (Buan v. Laya, G.R.
No. L-7840, Dec. 24, 1957).
Q: When must the court issue a notice to file claims
against the estate?
A: It is the duty of the court after granting letters
testamentary or of administration to issue a notice
requiring all persons having money claims to file them in
the office of the clerk of court (Sec. 1, Rule 86).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: The purpose of presentation of claims against decedents of
the estate in the probate court is to protect the estate of the
deceased. Further, its primary object is to apprise the
administrator and the probate court of the existence of the claim
so that a proper and timely arrangement may be made for its
payment in full or by pro rata portion in the due course of the
administration. (Herrera, Remedial Law, Vol. III-A, p. 131, 2005 ed)
Q: Jericho loaned P5 Million from Carina. Said loan was
secured by a real estate mortgage over a parcel of land
owned by Jericho. Thereafter, Jericho died without
satisfying the loan secured by the said mortgage. What are
the remedies available to Carina to enforce her mortgage
credit?
A:
1. Waive the mortgage and claim the entire debt from
the estate of the mortgagor as an ordinary claim;
2. Foreclose the mortgage judicially and prove any
deficiency as an ordinary claim;
3. Rely on the mortgage exclusively, foreclosing the same
judicially or extra judicially at any time before it is
barred by prescription without the right to claim for
any deficiency (Sec. 7, Rule 86).
Note: The above remedies are alternative (Herrera, Remedial Law,
Vol. III-A, p. 154, 2005 ed.).
TIME WITHIN WHICH CLAIMS SHALL BE FILED; EXCEPTIONS
Q: What is the time within which claims shall be filed?
A: It should not be less than six (6) months nor more than
twelve (12) months from the day of the first publication of
the notice thereof. Such period when fixed by the probate
court becomes mandatory and any action not filed within
the period shall be barred forever, unless otherwise falling
within any of the exceptions.
Note: The period prescribed in the notice to creditors is not
exclusive because money claims against the estate may be allowed
at any time before an order of distribution is entered, at the
discretion of the court for cause and upon such terms as are
equitable. (Quisumbing vs. Guison, 76 Phil 730)
Q: What is the purpose of the law in fixing the period
within which to file the claims against the estate?
A: The fixing of the period is intended to insure a speedy
settlement of the affairs of the deceased person and the
early delivery of the property to the person entitled to the
same (Santos v. Manarang, 27 Phil 209, 203, citing Re:
Estate of De Dios, 24 Phil 574).
STATUTE OF NON-CLAIMS
Q: What is the statute of non-claims?
A: It is a period fixed by the courts for the filing of claims
against the estate for examination and allowance (Herrera,
Remedial Law, Vol. III-A, p. 132, 2005 ed.).
Q: What are the exceptions to the statute of non-claims?
216
 SPECIAL PROCEEDINGS

A: Belated claims may be filed even beyond the period fixed
by the court:
1. On application of a creditor who has failed to file his
claim within the time previously limited, at any time
before an order of distribution is entered, the court
may, for just causes, allow such claim to be filed for a
period not exceeding 1 month from the order allowing
the filing of the belated claims; or (Sec. 2 , Rule 86)
2. Where the estate filed a claim against the creditor or
claimant who failed to present his claim against the
estate within the period fixed by the probate court for
the settlement of such claims, the creditor will be
allowed to set up the same as a counterclaim to the
action filed by the estate against him.
administration, all persons having money claims against the
decedent are mandated to file or notify the court and the
estate administrator of their respective money claims;
otherwise, they would be barred, subject to certain
exceptions. A money claim is only an incidental matter in
the main action for the settlement of the decedent's estate;
more so if the claim is contingent since the claimant cannot
even institute a separate action for a mere contingent
claim. Hence, Alans contingent money claim, not being an
initiatory pleading, does not require a certification against
non-forum shopping. (Sheker v. Estate of Alice O. Sheker,
G.R. No.157912, Dec. 13, 2007)

Note: Statute of non-claims supersedes the Statute of Limitations

insofar as the debts of deceased persons are concerned because if Q: Should taxes due and assessed after the death of the
a creditor fails to file his claim within the time fixed by the court in decedent be presented in the form of a claim?
the notice, then the claim is barred forever. However, both statute
of non-claims and statute of limitations must concur in order for a
creditor to collect. (Sikat vs. Vda. De Villanueva, G.R. No. L-35925, A: No. The court in the exercise of its administrative control
Nov. 10, 1932). over the executor or administrator may direct him to pay
such taxes. Moreover, heirs even after distribution are
Q: A borrowed from B a sum of money in the year 1990 as liable for such taxes (Vera v. Fernandez, G.R. No. L-31364,
evidenced by a written contract of loan. A died in 2001. Mar. 30, 1979.)
During the probate proceedings of A, the court ordered
that all claims against the estate must be filed from June CLAIMS EXTINGUISHED ACTIONS WHICH
2001 to January 2002. When B filed his claim on July 2001, BY DEATH SURVIVE
the court granted the same. Is the allowance of the claim Personal to either of the Those claims which can
correct? parties be filed either against the
estate or the executor
A: No, because the period to collect has already prescribed. The claim can no longer Claim is not extinguished
When A died in 2001, the prescriptive period of 10 years be prosecuted by reason by death but shall be
from the time A borrowed money from B in 1990 has of the death of the party prosecuted as a money
already lapsed. Thus, even if the claim was filed within the claim against the estate
statute of non claims, the statute of limitations has already of the deceased or
barred the filing of the claim. against the executor or
administrator
Q: What claims against the estate of the decedent are Examples: legal Example: contractual
covered by the statute of non claims? separation, annulment money claim, action to
of marriage, declaration recover real property
A: Only the following, which survive, must be presented: of nullity of marriage
1. All claims for money against the decedent, arising from
contract, express or implied, whether the same be CLAIM OF EXECUTOR OR ADMINISTRATOR AGAINST THE
due, not due, or contingent; ESTATE
2. All claims for funeral expenses;
3. Expenses for the last sickness of the decedent; or Q: What should be the action of the executor or
4. Judgment for money against the decedent (Sec. 5, Rule administrator if he has a claim against the estate?
86).
A: He shall give notice to the court in writing and the court
Q: The trial court admitted to probate the holographic will shall thereafter appoint a special administrator (Sec. 8, Rule
of Alice and thereafter issued an order for all the creditors 86).
to file their respective claims against the estate. Alan filed
a contingent claim for agent's commission due him in the Note: This is one of the instances where a special administrator is
event of the sale of certain parcels of land belonging to appointed. The special administrator will have authority to act only
the estate and reimbursement for expenses incurred. The with respect to the claim of the regular administrator of the
executrix of the estate moved for the dismissal of said executor (Regalado, Vol. 2, p. 83, 11th ed.).
money claim against the estate on the grounds that Alan
failed to attach a certification against non-forum
shopping. The trial court dismissed the case. Is the trial
court correct?

A: No. Under Sections 1 and 5, Rule 86 of the Rules of

Court, after granting letters of testamentary or of

217 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What is the procedure in filing claims?

A:
Deliver the claim with necessary vouchers to the clerk of court

Serve a copy on the executor/administrator

Claim is due: Supported by affidavit stating the Claim is not due or is contingent:
amount due and the fact that no payments have Supported by affidavit stating the
been made thereon or offsets particulars thereof

Executor/Administrator must file his answer to the claim within 15 days after service of a copy of the claim

Service of answer to the claimant

Claim admitted entirely Claim contested

Court, in its discretion, Court may approve

orders that known heirs, it without hearing
devisees, legatees be
notified and heard

If there is opposition, 15
Trial
days to file an answer

Claim may be referred to

commissioner

Judgment

Appeal: Record on appeal

filed within 30 days from
notice of judgment

PAYMENT OF DEBTS
Note: If there is still a deficiency, it shall be met by
Q: How should the debts of the estate be paid? contributions of devisees, legatees, or heirs who have
entered into possession of portions of the estate before
the debts and expenses have been settled and paid (Secs.
A: GR: The payment of the debts of the estate must be
2, 3, and 6, Rule 88).
taken from the following order:
1. Portion or property designated in the will XPNS: On application by executor or administrator,
2. Personal property; with written notice to persons interested, and after
3. Real property (Sec. 2, Rule 88). hearing, real properties can be charged first even

UNIVERSITY OF SANTO TOMAS 218

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS
though the personal properties are not exhausted
when:
1. The personal property is not sufficient to pay the
debts, expenses of administration and legacies
(Sec. 3, Rule 88);
2. The sale of such personal property would be
detrimental to the participants of the estate (Sec.
3, Rule 88);
3. Sale of personal property may injure the business
or other interests of those interested of the estate
(Sec. 2, Rule 89);
4. The testator has not made sufficient provision for
payment of such debts, expenses or legacies (Sec.
2, Rule 89);
5. The decedent was, in his lifetime, under contract,
binding in law, to deed real property to a
beneficiary (Sec. 8, Rule 89);
6. The decedent during his lifetime held real property
in trust for another person (Sec. 9, Rule 89).
Q: When would payment of the debt of the estate be
made?
A: When it appears that there are sufficient assets to pay
the debts, the executor or administrator shall pay the same
within the time limited for that purpose (Sec. 1,Rule 88)
Q: How shall the proceeds from sale of personal property
be used?
A:
1. To pay the debts and expenses of administration;
2. To pay legacies; and
3. To cover expenses for the preservation of the estate
(Sec. 1, Rule 89).
Q: How should contingent claims be paid?
A: If the court is satisfied that a contingent claim duly filed
is valid, it may order the executor or administrator to retain
in his hands sufficient estate to pay such contingent claim
when the same becomes absolute, or if the estate is
insolvent, sufficient estate to pay a portion equal to the
dividend of the other creditors (Sec. 4, Rule 88).
Q: What must be satisfied before a contingent claim may
be allowed by the court?
A:
1. Duly filed within the 2 year period allowed for the
creditors to present claims;
2. The claim is valid; and
3. The claim became absolute (Sec. 5, Rule 88).
Q: What is the consequence if the contingent claim is not
presented within the 2 year period after it becomes
absolute?
A: The assets retained in the hands of the executor or
administrator, not exhausted in the payment of claims,
shall be distributed by the order of the court to the persons
entitled to the same (Sec. 4, Rule 88). However, the assets
219
so distributed may still be applied to the payment of the
claim when established, and the creditor may maintain an
action against the distributees to recover the debt, and
such distributees and their estates shall be liable for the
debt in proportion to the estate they have respectively
received from the property of the deceased (Sec. 5, Rule
88).
Note: The contingent claims must first have been established and
allowed in the probate court before the creditors can file an action
directly against the distributees (De Bautista v. De Guzman, L-
28298, Nov. 25, 1983).
Q: What is the order of payment if estate is insolvent or
assets are insufficient?
A: The executor or administrator shall pay the debts
according to the concurrence and preference of credits
provided by Articles 1059 and 2239-2251 of the NCC (Sec. 7,
Rule 88).
Q: How should the estate in the Philippines of an insolvent
non-resident be disposed of?
A: It shall be disposed of in a manner where his creditors in
and outside the Philippines may receive an equal share, in
proportion to their respective credits (Sec. 9, Rule 88).
Q: When and how should claims proved outside the
Philippines against insolvent residents estate be paid?
A: Claims proven outside the Philippines where the
executor had knowledge and opportunity to contest its
allowance may be added to the list of claims proved against
the decedent in the Philippines and the estate will be
distributed equally among those creditors (Sec. 10, Rule
88).
Note: The benefits in the above provision shall not be extended to
the creditors in another country if the property of such deceased
person there found is not equally apportioned to the creditors
residing in the Philippines and the other creditors, according to
their respective claims (Sec. 10, Rule 88).
Q: When should the court authorize sale, mortgage or
other encumbrance of estate to pay debts and legacies in
other countries?
A: When it appears from records and proceedings of a
probate court of another country that the estate of the
deceased in foreign country is not sufficient to pay debts
and expenses, the court here may authorize the executor or
administrator to sell, mortgage or encumber the property
in the same manner as for the payment of debts and
legacies in the Philippines (Sec. 5, Rule 89).
ACTIONS BY AND AGAINST EXECUTORS AND
ADMINISTRATORS
ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS
AND ADMINISTRATORS
Those claims which can proceed independently of the
settlement proceeding such as:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

1. Actions to recover real or personal property, or

an interest therein, from the estate; A:
2. Enforcement of a lien; 1. There is a deficiency of assets in the hands of an
3. Actions to recover damages for an injury to executor or administrator for the payment of debts
person or property, real or personal (Sec. 1, Rule and expenses of administration;
87). 2. In his lifetime, the deceased had made or attempted
to make a fraudulent conveyance of his property or
Note: When the demand is in favor of the administrator and the had so conveyed such property that by law, the
party against whom it is enforced is a third party, not under the conveyance would be void as against his creditors;
courts jurisdiction, the demand cannot be made by mere motion 3. The subject of the attempted conveyance would be
by the administrator, but an independent action against the third
liable to attachment in his lifetime;
person. The demand cannot be made because third persons, not
under the jurisdiction of the court are involved (Paula v. Ecsay, 97 4. The executor or administrator has shown no desire to
Phil 617; Vide De la Cruz v. Camon, 16 SCRA 886, 888-889). file the action or failed to institute the same within a
reasonable time;
Q: What action may be brought by the executor or 5. Leave is granted by the court to the creditor to file the
administrator? action;
6. A bond is filed by the creditor; and
A: Recovery or protection of the property or rights of the 7. The action by the creditor is in the name of the
deceased, action for causes which survive (Sec. 2, Rule 87). executor or administrator (Sec. 10, Rule 87).

Note: When an executor or administrator is appointed and
assumes the trust, no action to recover the title or possession of
lands or for damages done shall be maintained against him by an
heir or devisee until there is an order of the court assigning the
lands to such heir or devisee or until the time allowed for paying
debts has expired (Sec. 3, Rule 87). The prohibition applies only to
heirs or devisees and not to a donee inter vivos who may file an
action to compel the administrator to deliver the property donated
(Del Rosario v. Del Rosario, 2 Phil 321; Lopez v Olbes, 15 Phil 540).
Note: The last 3 requisites are unnecessary where the grantee is
the executor or administrator himself, in which event, the action
should be in the name of all the creditors (Sec. 10; Herrera,
Remedial Law, Vol. III-A, p. 175, 2005 ed.).
The creditor cannot directly file the action in court. It is only after
the executor/administrator failed to file the action that the
creditor is authorized to file the action, but it must still be in the
name of the executor/administrator.

Q: What is the rule with respect to the right of the heirs to DISTRIBUTION AND PARTITION
sue for the recovery of property of the estate during the
pendency of administration proceedings? LIQUIDATION

A: GR: The heirs have no legal standing to sue for recovery Q: What is liquidation?
of property of the estate (Herrera, Remedial Law, Vol. III-A,
p. 167, 2005 ed.). A: Liquidation means the determination of all assets of the
estate and payment of all debts and expenses.
XPN:
1. If the executor or administrator is unwilling or
refuses to bring suit; and
2. When the administrator is alleged to have
participated in the act complained of and he is
made a party defendant

REQUISITES BEFORE CREDITOR MAY BRING AN ACTION

FOR RECOVERY OF FRAUDULENTLY CONVEYED BY THE
DECEASED

Q: What are the requisites in order that an

executor/administrator may commence and prosecute an
action for the recovery of property in the name of the
creditors, in case of fraudulent conveyance?

A:
1. Application of the creditors;
2. Payment of cost and expenses by the creditors; and
3. Giving of security by the creditors in favor of the
executor or administrator (Sec. 9, Rule 87).

Q: What are the requisites before a creditor may bring an

action for recovery of property fraudulently conveyed by
the deceased?

UNIVERSITY OF SANTO TOMAS 220

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

Q: Discuss the process for the distribution of the residue of the estate.

A:

Note: Even if the testator stated in his will that he owes a certain person and ordered that the same be paid, if the estate is insolvent, the creditor
shall not enjoy priority over other claimants. The provision in the will should only establish the claim of the creditor against the estate. He must
still file his claim according to Section 9, Rule 86 and must comply with the statute of non-claims.

Q: When is the order for distribution of residue made?

221 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: GR: Order of distribution shall be made after payments
of all debts, funeral expenses, expenses for administration,
allowance of widow and inheritance tax (Sec. 1, Rule 90).
XPN: If the distributees or any of them gives a bond
conditioned for the payment of said obligation, the
order of distribution may be made even before the
payment of all debts, etc. (par. 2, Sec. 1, Rule 90).
Note: The probate court loses jurisdiction over the settlement
proceedings only upon payment of all debts and expenses of the
obligor and delivery of the entire estate to all the heirs (Guilas v.
Judge of CFI of Pampanga, G.R. No. L- 26695, Jan. 31, 1972).
Q: When should declaration of heirship be made?
A: The declaration of heirship must be made before the
residue of the estate should be distributed. It must be
made in the same proceedings, either intestate or testate
and not a separate action. The declaration of heirship is
important before distribution to determine who are
entitled to the residue to be distributed (Section 1, Rule 90)
Note: The provision is not mandatory because it is the distribution
of the residue of the estate before its obligations are paid which
the court is enjoined to do but not the declaration of heirs prior to
the satisfaction of these obligations. The court may therefore
make a declaration of heirship even before the payment of its
obligations (Ngo The Hua v. Chung kiat Hua, 118 Phil 956, 9 SCRA
113).
Q: What should the executor or administrator do if all the
claims are paid or settled?
A: The executor or administrator shall prepare the project
of partition reflecting the residue of the estate and how it is
to be distributed. However, this is not mandatory (Herrera,
Remedial Law, Vol. III-A, p. 213, 2005 ed.).
PROJECT OF PARTITION
Q: What is project of partition?
A: It is a document prepared by the executor or
administrator setting forth the manner in which the estate
of the deceased is to be distributed among the heirs (Solivio
v. CA, G.R. No. 83308, Feb. 12, 1990).
Q: May an heir of the deceased sell his undivided share
during the pendency of the estate proceedings without
the prior approval of the probate court?
A: Yes. An heir has the right to sell his undivided or ideal
share of the estate, he being the co-owner with other heirs
of the estate. Court approval is necessary only if specific
property of the estate is sold (Heirs of Pedro Escanlar v. CA,
G.R. No. 119777, Oct. 23, 1997).
Q: Does the finality of the approval of the project of
partition by itself alone terminate the probate
proceeding?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: No. As long as the order of the distribution of the estate
has not been complied with, the probate proceedings
cannot be deemed closed and terminated (Estate of Ruiz v.
CA, G.R. No. 118671, Jan. 29, 1996).
Note: A decree of distribution of the estate of a deceased person
vests the title to the land of the estate in the distributees, which, if
erroneous may be corrected by a timely appeal. Once it becomes
final, its binding effect is like any other judgment in rem. However,
in exceptional cases, a final decree of distribution of the estate may
be set aside for lack of jurisdiction or fraud. Further, in Ramon v.
Ortuzar, the Court ruled that a party interested in a probate
proceeding may have a final liquidation set aside when he is left
out by reason of circumstances beyond his control or through
mistake or inadvertence not imputable to negligence (Ancheta v.
Guersey-Dalaygon, 490 SCRA 140).
REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT NOT
GIVEN HIS SHARE
Q: What is the remedy of an heir who is entitled to the
residue but was not given his share?
A:
1. MOTION TO SET ASIDE THE DISTRIBUTION - If an heir
appears after the court approved the project of
partition, the heir must file a Motion to set aside the
distribution with the court so that the court will not
proceed with the distribution of the residue. The
probate court shall determine whether such heir has a
right to participate in the distribution of the residue. If
it is proven that the heir has a right, the court may
order the revision of the project of partition for its
adjustment.
2. MOTION TO DELIVER SHARE If the heir was not
excluded from the proceedings but was not able to
receive his share
3. MOTION FOR THE RE- OPENING OF THE SETTLEMENT
PROCEEDINGS - If the distribution has already been
made, a motion for closure has already been granted,
the heir must file a Motion for the re-opening of the
settlement proceedings within the reglementary
period, provided the order of closure has not yet
become final and executory. The period is within 30
days from the date the order of closure of the
administration proceeding was served on the executor
or administrator (Divinagracia vs. Rovira, 72 SCRA
307).
Note: When motion to intervene is made by illegitimate
children, there must be proof beyond allegations in such
motion to show the interest of the private movants. In the
absence thereof, the action taken by the judge allowing said
intervention could be considered premature (Jerez v. Nietes,
G.R. No. L-26876 [1969])
222
 SPECIAL PROCEEDINGS

4. PETITION FOR THE RE-OPENING OF THE SETTLEMENT

PROCEEDINGS Although closed and terminated, the
preterited heir who was excluded from the settlemtn
proceedings can still file a petition to reopen within a
period of 10 years (Art. 1144, NCC; Solvino v. CA, 182
SCRA 119).
5. ACCION REIVINDICATORIA - If the order of closure has
already become final and executory, the remedy is to
file an independent suit against the parties and all the
other heirs for his/her share (Nunal v. CA, 221 SCRA
26).
Q: When is title to property vested in the heirs?
A: It is vested from finality of order of distribution. (Herrera,
Remedial Law, Vol. III-A, p.214, 2005 ed.).
Note: It is limited only to specific property or subject.
Q: Can a trustee under the Rules of Court be appointed
based on an implied trust?
A: No. The provision of the Rules of Court refers to a judicial
trust constituted only based on an express trust either from
a will or any other written instrument.
Note: The trustee has the legal title over the property while the
beneficial title is with the cestui que trust. Therefore, unlike an
executor or administrator, the trustee can validly make
conveyances of the property held by him in trust, subject to the
right of the beneficiary against the trustee but not against the
buyer.

Note: The order that determines distributive share is appealable.

(Herrera, Remedial Law, Vol. III-A, p.214, 2005 ed)

INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF

EXECUTION DISTINGUISHED FROM EXECUTOR/ADMINISTRATOR

Q: Is execution the proper remedy to satisfy an approved EXECUTOR/ TRUSTEE

claim? ADMINISTRATOR
Accounts are NOT under Accounts must be UNDER
A: No, because: oath and except for initial OATH and filed ANNUALLY
1. A writ of execution is not allowed by the Rules of Court and final submission of
for the payment of debts and expenses of accounts, they shall be filed
administration; only at such times as may
2. The proper procedure is for the court to order the sale be required by the court
of the property of the deceased to satisfy the claim Court that has jurisdiction Court which has jurisdiction
and in case of refusal to comply with the order, the may be MTC or RTC is the RTC if appointed to
court may cite him in contempt carry into effect provisions
of a will; if trustee dies,
resigns or is removed in a
Q: What are the instances when the probate court may contractual trust, RTC has
issue writ of execution? jurisdiction in the
A: appointment of new
1. To satisfy the distributive shares of the devisees, trustee
legatees and heirs in possession of the decedents May sell, encumber or May sell or encumber
assets (Sec. 6, Rule 88); mortgage property if it is property of the estate held
2. To enforce payment of the expenses of partition (Sec. necessary for the purpose in trust if necessary or
3, Rule 90); and of paying debts, expenses expedient or upon order of
3. To satisfy the costs when a person is cited for of administration or the court
examination in probate proceedings (Sec. 13, Rule legacies or for the
142). preservation of property or
if sale will be beneficial to
TRUSTEES heirs, legatees or devisees
(Upon application to the
Q: What is a trust? court with written notice to
the heirs)
A: A legal relationship between one person having an Within 1 year, the authority Order of sale has no limit
equitable ownership in property and another person to sell prescribes
owning the legal title to such property. Approved by the court to Appointed to carry into
settle estate of the effect the provisions of a
Q: Who is a trustee? decedent will or written instrument
(contractual trust)
A: A trustee is one who is appointed to carry out the NOT EXEMPTED from filing May be EXEMPTED from
provision of the will or any written instrument executed by a bond even if such filing a bond if provided in
the trustor. exemption is provided in the will or if beneficiaries

223 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

the will (Bond may still be requested such exemption A:

required for payment of 1. Petition filed by parties beneficially interested;
debts) 2. Notice to trustee; and
Services of executors or Trusteeship is terminated 3. Hearing (Sec. 8, Rule 98).
administrator is terminated upon TURNING OVER THE
UPON PAYMENT OF DEBTS PROPERTY to beneficiary GROUNDS FOR REMOVAL AND RESIGNATION OF A
of the estate and after expiration of the trust TRUSTEE
DISTRIBUTION of property (period may be provided
to the heirs for in the will or trust Q: What are the grounds for removal or resignation of a
contract) trustee?
MUST PAY the debts of the NO OBLIGATION TO PAY
estate the debts of the A:
beneficiaries or trustor 1. Removal appears essential in the interest of
petitioners;
CONDITIONS OF THE BOND 2. Insanity;
3. Incapability of discharging the trust; or
Q: Is the trustee required to file a bond? 4. Unsuitability (Sec. 8, Rule 98).

A: GR: Yes. Neglect of trustees to file a bond will be Note: A trustee may resign his trust if it appears to the court to be
proper to allow such resignation (Sec. 8, Rule 98).
interpreted by the court as resignation or decline to accept
the trust.

XPN: If requested by the testator or by all persons

beneficially interested in the trust, the trustee may be EXTENT OF AUTHORITY OF TRUSTEE
exempted from filing a bond. But the court may cancel
such exemption anytime (Sec. 5, Rule 98). Q: What is the extent of authority of a trustee?

Q: What are the conditions of the bond?
A:
1. That the trustee will make and return to the court, at
such time as it may order, a true inventory of all the
estate belonging to him as trustee, which at the time
of the making of such inventory shall have come to his
possession or knowledge;
A: The powers of a trustee appointed by a Philippine court
cannot extend beyond the confines of the territory of the
Republic of the Philippines. This is based on the principle
that his authority cannot extend beyond the jurisdiction of
the Republic of the Philippines, under whose courts he was
appointed. Remotely, the rule is also based on the rule in
international law of the sovereign equality of states.
(Herrera, Remedial Law, Vol. III-A, p. 452, 2005 ed)

Note: When the trustee is appointed as a successor to a prior
trustee, the court may dispense with the making and return
of an inventory if one has already been filed.
2. That he will manage and dispose of all such estate, and
faithfully discharge his trust in relation thereto,
according to law and the will of the testator or the
provisions of the instrument or order under which he
is appointed;
3. That he will render under oath at least once a year
until his trust is fulfilled a true account of the property
in his hands and of the management and disposition
thereof, and such other accounts as the court may
order; and
4. That at the expiration of his trust he will settle his
accounts in court and pay over and deliver all the
estate remaining in his hands, or due from him on such
settlement, to the persons entitled thereto (Sec. 6,
Rule 98).
REQUISITES FOR THE REMOVAL AND RESIGNATION OF A
TRUSTEE
Q: What are the requisites for the removal or resignation
of a trustee?
Q: When is there a testamentary trust?
A: If a testator has omitted in will to appoint a trustee in
the Philippines, and if such appointment is necessary to
carry into effect the provisions of the will. The proper RTC
may the appoint a trustee after notice to all persons
interested, who shall have the same rights, powers, and
duties, and in whom the estate shall vest, as if he had been
appointed by the testator.
Note: The power to appoint a trustee is discretionary with the
court before whom application is made, and the appellate court
will decline to interfere except in cases of clear abuse (Herrera,
Remedial Law, Vol. III-A, p. 449, 2005 ed.).
Q: Are notice to and consent of beneficiaries essential for
the creation of the trust?
A: No. The fact that beneficiaries were not notified of the
existence of the trust or that the latter have not been given
an opportunity to accept it is of no importance for it is not
essential to the existence of a valid trust and to the right of
the beneficiaries to enforce the same that they had
knowledge thereof at the time of its creation. Neither is it
necessary that the beneficiary should consent to the
creation of the trust (De Leon, et. al v. Molo-Peckson, et al.,
G.R. No.L-17809, Dec. 29, 1962).

UNIVERSITY OF SANTO TOMAS 224

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS
Q: When is there a contractual trust?
A: When a trustee under a written instrument declines,
resigns, dies, or is removed before the objects of the trust
are accomplished, and no adequate provision is made in
such instrument for supplying the vacancy after due notice
to all persons interested, the proper RTC may appoint a
new trustee to act alone or jointly with the others, as the
case may be.
Q: Will the non-acceptance by trustee result in the failure
of the trust?
A: GR: No. A trust will never fail for want of a trustee.
XPN: Where the trust is purely personal (Herrera,
Remedial Law, Vol. III-A, p. 451, 2005 ed.).
Q: Can the possession of the trustee of the property ripen
into ownership?
A: GR: An action to compel a trustee to convey property
registered in his name in trust for the benefit of the cestui
qui trust does not prescribe. The trustees possession is not
adverse because of the specific duties imposed upon him
by the Rules and therefore cannot ripen into title by
prescription.
XPN: Prescription may arise where there is adverse
possession of the property. To constitute adverse
possession, the following must be present:
1. That the trustee has performed unequivocal acts
amounting to an ouster of the cestui qui trust;
2. That such positive acts of repudiation had been
made known to the cestui qui trust; and
3. That the evidence thereon should be clear and
conclusive (Ceniza vs. CA, 181 SCRA 552).
ESCHEAT
Q: What is escheat?
A: It is a French or Norman term meaning chance or
accident. Escheat is a proceeding whereby the real or
personal property of a deceased person in the Philippines,
becomes the property of the State upon his death, without
leaving any will or legal heirs (Herrera, Vol. III-A, p. 225,
2005 ed.).
Note: Escheat is a special proceeding commenced by petition. It is
a substantial right of the State, being the last heir in the line of
succession, and is not a claim based on charity, gratuity or
unearned benefit (Ibid.).
Q: Is the right to escheat waivable?
A: Yes. The right to escheat may be waived, either expressly
or impliedly (Herrera, Vol. III-A, p. 229, 2005 ed.).
Q: What is the basis of the states right to receive property
in escheat proceedings?
A: In the order of succession under the Civil Code, the State
is the last heir of the decedent.
Q: Who and where may an escheat proceeding be filed?
A: The Solicitor General or his representative in behalf of
the Republic of the Philippines, may file a petition in the
RTC of the province where the deceased last resided or in
which he had an estate, if he resided out of the Philippines,
setting forth the facts, and praying that the estate of the
deceased be declared escheated (Sec. 1, Rule 91).
WHEN TO FILE
Q: What are the three instances of escheat?
A:
1. When a person dies intestate leaving no heir but
leaving property in the Philippines (Sec. 1, Rule 91);
2. Reversion proceedings where sale of property is made
in violation of the Constitutional provision; and
3. Dormant accounts for 10 years (Unclaimed Balance Act
of Banking Laws).
Note: A petition for escheat proceedings maybe made, upon
showing that an intestate decedent left some properties but no
heir, by the Solicitor General or his representatives in behalf of the
Republic of the Philippines (Sec. 1, Rule 91).
Q: To whom will the property escheated be assigned?
A:
1. If personal property, to the municipality or city where
he last resided.
2. If real property, to the municipality or city where the
property is situated
3. If deceased never resided in the Philippines, to the
municipality or city where the property may be found
Q: What purposes may the estate assigned be used for?
A: (1) The estate assigned shall be for the benefit of public
schools, and public charitable institutions and centers, in
such municipalities or cities. The court shall distribute the
estate as the respective needs of each beneficiary.
(2) The court, at the instance of an interested party, or on
its own motion, may order the establishment of a
permanent trust, so that only the income from the property
shall be used. (Art. 1013, Civil Code).
REQUISITES FOR FILING OF PETITION
Q: What are the requisites for filing a petition?
A:
1. A person died intestate;
2. He left no heirs or persons by law entitled to the same;
and
3. The deceased left properties in the Philippines (Sec. 1,
Rule 91).
225 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Can the court convert escheat proceedings into
settlement of the estate?
A: No, once the court acquires jurisdiction to hear the
petition for escheat by virtue of the publication of the
petition for escheat, this jurisdiction cannot be converted
into one for the distribution of the properties of the
decedent (Herrera, Vol. III-A, p. 227, 2005 ed.) Each special
proceeding must be governed by their respective rules
separate from each other.
Note: For the distribution of the estate to be instituted, the proper
petitions must be presented and the proceedings should comply
with the requirements of the Rules of Court (Municipality of
Magallon v. Bezore, G.R. No. L-14157, Oct. 26, 1960).
REMEDY OF RESPONDENT AGAINST PETITION; PERIOD
FOR FILING A CLAIM
Q: What is the remedy of the respondent against the
petition for escheat?
A:
1. When the petition does not state the facts which
entitle the petitioner to the remedy prayed for, or
even admitting them hypothetically, the respondent
may file a MOTION TO DISMISS, and in such case the
Motion to dismiss plays the role of a demurrer to
evidence (Herrera, Vol. III-A, p. 227, 2005 ed.).
2. File a claim against the estate within the period
prescribed by the Rules
Q: What is the period for filing a claim?
A: If a person legally entitled to the estate of the decedent
appears, he should file a claim with the court within five (5)
years from the date the property was delivered to the
State. Otherwise, the claim shall forever be barred (Art.
1401, Civil Code; Sec. ,4 Rule 91, Rules of Court).
Q: Can the court where the escheat proceedings is
pending still allow the filing of a claim against the estate
when it has not acquired jurisdiction?
A: No. Such court has no jurisdiction to grant the remedy
enabling the devisee, legatee, heir, widow, widower or
other person entitled to the estate to appear within a
specific period from the date of the decree of escheat and
file a claim to the estate (Divino v. Municipality of Guianga,
62 Phil 926).
GUARDIANSHIP
Q: What is guardianship?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: It is the power of protective authority given by law and
imposed on an individual who is free and in the enjoyment
of his rights, over one whose weakness on account of his
age or other infirmity which renders him incapable to
protect himself. (Herrera, Vol. III-A, pg. 235, 2005 ed.).
It may also describe the relation subsisting between the
guardian and the ward. It involves the taking of possession
and management of, the estate of another unable to act for
himself (Ibid).
Note: Guardianship of minors is now governed by the Rule on
Guardianship of Minors (AM No. 03-02-05-SC) which took effect on
May 1, 2003 while guardianship of incompetents who are not
minors is still governed by the provisions of the Rules of Court on
Guardianship (Rule 92- 97).
Q: What is the basis of guardianship?
A: Parens patriae The State has the duty of protecting
the rights of persons or individuals who because of age or
incapacity are in an unfavorable position vis-a-vis other
persons (Ibid.).
Q: What is ancillary guardianship?
A: It refers to the guardianship in a State other than that in
which guardianship is originally granted (Herrera, Vol. III-A,
pg. 276, 2005 ed)
Note: Authority of the guardian may extend only to the property of
the minor or incompetent within such State.
Q: What are the kinds of guardians?
A:
1. According to scope
a. Guardian of the person has been lawfully
invested with the care of the person of the minor
or incompetent;
b. Guardian of the property appointed to have the
management of the estate of a minor or
incompetent; or
c. General guardian appointed to have the care
and custody of the person and of all the property
of the ward.
2. According to constitution
a. Legal guardian a guardian by provision of law
without the need of judicial appointment, as in
the case of parents over the persons of their
minor children, or the father, or in his absence,
the mother (the parent shall only furnish the
necessary bond if the property of minor child
exceeds P50,000);
b. Guardian ad litem any competent person
appointed by the court to prosecute or defend a
minor or incompetent in an action in court;
c. Judicial guardian a competent person appointed
by the court over the person or property of the
ward to represent the latter in all his civil acts and
transactions (Herrera, Vol. III-A, pg. 237, 2005
ed.).
226
 SPECIAL PROCEEDINGS
Note: If an issue arises as to who has the better right or title to the
properties conveyed in the guardianship proceeding, such issue
should be threshed out in a separate ordinary action as it is beyond
the jurisdiction of the guardianship court, unless the wards right or
title to the property is clear and undisputable.
Q: Who are considered incompetents?
A:
1. Those suffering the penalty of civil interdiction;
2. Hospitalized lepers;
3. Prodigals;
4. Deaf and dumb who are unable to read and write;
5. Those who are of unsound mind, even though they
have lucid intervals; and
6. Persons not being of unsound mind, but by reason of
age, disease, weak mind, and other similar causes,
cannot, without outside aid, take care of themselves
and manage their property, becoming thereby an easy
prey for deceit and exploitation (Sec. 2, Rule 92).
Q: What court has jurisdiction on a guardianship
proceeding for incompetents?
A: The guardianship proceedings may be instituted in the
RTC of the province where he resides and if he resides in a
foreign country, in the RTC of the province wherein his
property or part thereof is situated; provided, however,
that where the value of the property of such incompetent
exceeds the jurisdiction of the MTC, the proceedings shall
be instituted in the RTC (Sec. 1, Rule 92)
Note: In view of the Rule on Guardianship of Minors, the Rules on
General Guardian and Guardianship in the Rules of Court should be
limited in its application to guardianship of the person or estate of
an incompetent.
Q: In a petition for guardianship, what are the
jurisdictional facts which must appear in the application
which gives the court authority to act over it?
A:
1. The minority or incompetence of the person for whom
guardianship is sought;
2. His domicile.
Note: In a petition for appointment of guardian of the property of
the minor or incompetent, it is a jurisdictional fact and should be
alleged therein, that the minor has property needing the care and
attention of a guardian.
Q: Who may file a petition for guardianship of
incompetents?
A:
1. Any relative, friend, or other person on behalf of
incompetent who has no parent or lawful guardian;
2. Secretary of DOH in favor of an insane person who
should be hospitalized; or
3. Anyone interested in the estate of non-resident
incompetent (Sec. 1 & 6, Rule 93).
227
Q: Give the proper venue for a petition for the
appointment of an administrator over the land and
building left by an American citizen residing in California,
who had been declared an incompetent by an American
court. (1997 Bar Question)
A: The venue for the appointment of an administrator over
such land and building is the RTC of the place where his
property or part thereof is situated (Sec. 1, Rule 92).
Q: What are the grounds for opposition to petition of
guardianship of incompetent?
A:
1. Competency of alleged incompetent; or
2. Unsuitability of the person for whom letters are
prayed for(Sec. 4, Rule 93).
GENERAL POWERS AND DUTIES OF GUARDIANS
Q: What are the general powers and duties of guardians?
A:
1. To have the care and custody of the person of the
ward, and/or the management of his estate;
2. Pay the debts of the ward;
3. To settle accounts, collect debts, and appear in actions
for the ward;
4. Manage the estate of the ward frugally, and apply the
proceeds to the maintenance of the ward;
5. Render a verified inventory within 3 months after his
appointment and annually thereafter, and upon
application of interested persons;
6. Render to court for its approval an accounting of the
property for 1 year from his appointment and as often
thereafter as may be required, and upon application of
interested persons
7. Consent to a partition of real or personal property
owned by ward jointly or in common with others (Secs.
1-8, Rule 96; Sec. 17, A.M. No. 03-02-05-SC).
Note: Unlike trustees, the accounting made by the guardian is not
under oath, and not made annually (Sec. 6 (c), Rule 98 in relation
to Sec. 8, Rule 96, Rules of Court.
Furthermore, the duties of trustees may cover a wider range than
those of executors or administrators of the estate of deceased
persons (Araneta v. Perez, G.R. Nos. L-16185-86 [1962])
Q: When may the guardian of a minor sell the property of
his ward?
A:
1. When the income of a property under guardianship is
insufficient to maintain and educate the ward, and his
family; or
2. When it is for the benefit of the ward that his personal
or real property or any part thereof be sold,
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
mortgaged or otherwise encumbered, and the
proceeds invested in safe and productive security, or
in the improvement or security of other real property
(Sec. 19, A.M. No. 03-02-05-SC).
Q: What is the requirement before the guardian can sell,
mortgage or encumber the property of the ward?
A: The guardian must seek authority from the court. The
authority to sell or encumber shall not extend beyond one
(1) year unless renewed by the court.
Q: Can the guardian be allowed to invest the proceeds of
the sale, mortgage, or encumbrance?
A: The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances, and any
other of his ward's money in his hands, in real estate or
otherwise, as shall be for the best interest of all concerned,
and may make such other orders for the management,
investment, and disposition of the estate and effects, as
circumstances may require (Sec. 5, Rule 95).
CONDITIONS OF THE BOND OF THE GUARDIAN
Q: What are the conditions of the bond of the guardian?
A:
1. To make and return to the court, within 3 months, a
true and complete inventory of all the estate of his
ward which shall come to his possession or knowledge
or to the possession or knowledge of any other person
for him;
2. To faithfully execute the duties of his trust, manage
and dispose of the estate according to the rules for the
best interests of the ward, and to provide for the
proper care, custody, and education of the ward;
3. To render a true and just account of all the estate of
the ward in his hands, and of all proceeds or interest
derived therefrom, and of the management and
disposition of the same, at the time designated by the
rules and such other times as the court directs;
4. At the expiration of his trust, settle his accounts with
the court and deliver and pay over all the estate,
effects, and moneys remaining in his hands, or due
from him on such settlement, to the person lawfully
entitled thereto; and
5. To perform all orders required by the court (Sec. 1,
Rule 94; Sec.14, A.M. No. 03-02-05-SC).
Q: What is the purpose of the bond?
A: It is for the protection of the property of the minor or
incompetent to the end that he may be assured of an
honest administration of his funds (Herrera, Vol. III-A, p.
281, 2005 ed.)
Note: The bond of the guardian is a continuing one against the
obligors and their estates until all of its conditions are fulfilled. The
mere fact that defendant was removed as guardian did not relieve
her or her bondsmen from liability during the time she was duly
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
acting as such guardian. (Guerrero v. Teran, G.R. No. L-4898, Mar.
19, 1909)
Q: Is there any requirement before the parents can
exercise legal guardianship over their minor children?
A: No. The father and the mother shall jointly exercise legal
guardianship over the person and property of their
unemancipated common child without the necessity of a
court appointment (Sec. 1, A.M. No. 03-02-05-SC).
Q: Does the requirement of posting a bond extend to
parents who are the legal guardians of their minor
children? Explain.
A: GR: No, if the market value or annual income of the child
is P 50,000 or below.
XPN: If the market value of the property or the annual
income of the child exceeds P50,000, the parent
concerned shall furnish a bond in such amount as the
court may determine, but in no case less than 10% of
the value of such property or annual income, to
guarantee the performance of the obligations
prescribed for general guardians (Sec. 16, A.M. No. 03-
02-05-SC).
Q: Discuss the procedure in the appointment of guardians
of minor or incompetent.
A:
Petition for the appointment of a guardian
Court order fixing the time and date of hearing
Notice of hearing
Opposition, if any
Case study report of the minor and prospective
guardian conducted by a social worker submitted at
least three (3) days before the scheduled hearing
Hearing and appointment of guardian
Filing of bond by the guardian
Service of judgment on the Local Civil Registrar
of the place where the minor or incompetent
resides and Register of Deeds where his
property or part thereof is situated
Termination of guardianship
228
 SPECIAL PROCEEDINGS

2. Suspension, deprivation or termination of parental

Note: The procedure for the appointment of guardian of a minor or authority;
incompetent is similar except for the case study report which is 3. Remarriage of surviving parent, if the latter is found
applicable only to appointment of guardian of a minor. unsuitable to exercise parental authority; or
4. When the best interests of the minor so require (Sec.
Q: What are the grounds for REMOVAL of guardianship 4, A.M. No. 03-02-05-SC).
over minors and incompetents?
Q: What are the factors to be considered for the
A: appointment of guardian of minors?
1. Insanity;
2. Incapability or unsuitability for discharging his trust; A:
3. Wastage or mismanagement of the property of the 1. Moral character;
ward; or 2. Physical, mental, and psychological condition;
4. Failure to render an account or make a return for 30 3. Financial status;
days after it is due (Sec. 24, A.M. No. 03-02-05-SC; Sec. 4. Relationship of trust with the minor;
2, Rule 97). 5. Availability to exercise the powers and duties of a
guardian for the full period of the guardianship;
Q: What are the grounds for TERMINATION of 6. Lack of conflict of interest with the minor; and
guardianship over minors or incompetents? 7. Ability to manage the property of the minor (Sec. 5,
A.M. No. 03-02-05-SC).
A:
1. Ward has come of age; Note: The court shall order a social worker to conduct a case study
2. Death of the ward; of the minor and all the prospective guardians and submit his
3. Competency of alleged incompetent; report and recommendation to the court for its guidance before
4. Guardianship is no longer necessary (Sec. 25, A.M. No. the scheduled hearing(Sec.9, A.M. No. 03-02-05-SC).
03-02-05-SC; Sec. 1, Rule 97). Q: Who may be appointed as guardian of a minor?

RULE ON GUARDIANSHIP OVER A MINOR A: In default of parents or a court-appointed guardian, the

Q. Who are considered minors?
A: Those who are below eighteen (18) years old (Herrera,
Vol. III-A, pg. 239, 2005 ed.).
Q: Where can a petition for guardianship for minor be
filed?
A: A petition for guardianship over the person or property,
or both, of a minor may be filed in the Family Court of the
province or city where the minor actually resides. If he
resides in a foreign country, the petition shall be filed with
the Family Court of the province or city where his property
or any part thereof is situated (Sec. 3, A.M. No. 03-02-05-SC
2003-05-01).
court may appoint a guardian of the person or property, or
both, of a minor, observing, as far as practicable, the
following order of preference:
1. Surviving grandparent and, in case several
grandparents survive, the court shall select any of
them taking into account all relevant considerations;
2. Oldest brother or sister of the minor over 21 years of
age, unless unfit or disqualified;
3. Actual custodian of the minor over 21 years of age,
unless unfit or disqualified;
4. Any other person, who in the sound discretion of the
court would serve the best interests of the minor (Sec.
6, A.M. No. 03-02-05-SC).
Q: What are the grounds for opposition to petition of
guardianship of minors?

Q: Who may file a petition for guardianship of minors? A:

A:
1. Any relative or other person on behalf of the minor;
2. The minor himself if 14 years or over; or
3. The secretary of DSWD and DOH in case of insane
minor who needs to be hospitalized (Sec. 2, A.M. No.
03-02-05-SC).
Note: While allegation as to the names, ages and residences of the
minors relatives is jurisdictional, the same may not be necessary
where the petition was filed by the minors relatives themselves.
Q: What are the grounds for the appointment of a
guardian over the person or property, or both, of a minor?
A:
1. Death, continued absence, or incapacity of his parents;
1. Majority of the alleged minor; or
2. Unsuitability of the person for whom letters are
prayed for (Sec. 10, A.M. No. 03-02-05-SC).
Q: How may a petition for guardianship of minors or
incompetents be opposed?
A: Any interested person may contest the petition by filing
a written opposition and pray that the petition be denied,
or that letters of guardianship issue to himself, or to any
suitable person named in the opposition (Sec. 10, A.M. No.
03-02-05-SC; Sec. 4, Rule 93).
Note: If the interested person is a creditor and mortgagee of the
estate of the minor, he cannot be appointed guardian of the
person and property of the latter.

229 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: May courts appoint a guardian for non-resident minors

or incompetents? Explain.

A: Yes, but only insofar as to the property of the non-

resident minor found in the Philippines is concerned. Any
relative or friend of such minor, or anyone interested in his
property, in expectancy or otherwise, may petition the
Family Court/RTC for the appointment of a guardian over
the property. (Sec. 12, A.M. No. 03-02-05-SC; Sec.6, Rule 93)

Note: Publication is required in case of a petition for guardianship

over the property of a non resident minor unlike in the case of a
resident minor where no publication is required.
ADOPTION
Republic Act No. 8552; Republic Act No. 8043
A.M. No. 02-06-02-SC

Q: What is adoption?
A: Domestic adoption refers to the juridical act, a
proceeding in rem, which creates between two persons a
relationship similar to that which results from legitimate
paternity and filiation.

Inter-country adoption refers to the socio-legal process of

adopting a Filipino child by a foreigner or a Filipino citizen
permanently residing abroad where the petition is filed, the
supervised trial custody is taken, and the decree ofadoption
is issued outside of the Philippines [Sec. 3(a), R.A. 8043].

Q: What is the State policy on adoption?

A: It is the policy of the State to ensure that every child

remains under the care of his or her parent/s and be
provided with love, care, understanding and security
towards the full and harmonious development of his
personality [Sec. 2(b)(i), A.M. No. 02-6-02].

Q: What are the paramount considerations on adoption?

A: The best interests and welfare of children are the

paramount considerations (Herrera, Vol. III-A, pg. 320, 2005
ed.).

DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION

DOMESTIC INTER-COUNTRY
Jurisdiction Family Court where adopter resides Inter-Country Adoption Board
[Petition may also be filed with Family Court
where adoptee resides; FC to endorse
petition to Inter-Country Adoption Board
(ICAB)]
Who May adopt (1) Any Filipino citizen A foreigner must meet the following
requirements in order to be qualified to
a. of legal age, adopt in the Philippines under the Inter-
Country Adoption Act:
b. in possession of full civil capacity and
legal rights, a) GR: at least twenty-seven (27) years of
age and at least sixteen (16) years older
c. of good moral character, than the child to be adopted, at the
time of application;
d. has not been convicted of any crime

UNIVERSITY OF SANTO TOMAS 230

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS
involving moral turpitude;
e. who is emotionally and psychologically
capable of caring for children,
f. who is in a position to support and
care for his children in keeping with the
means of the family and
g. at least sixteen (16) years older than
the adoptee. This requirement of a 16-
year difference may be waived when
the:
i. adopter is the biological parent of
the adoptee or
ii. adopter is the spouse of the
adoptees biological parent;
(2) Any alien possessing the same
qualifications as above-stated for Filipino
nationals: Provided,
a. that his country has diplomatic
relations with the Republic of the
Philippines,
b. that he has been living in the
Philippines for at least three (3)
continuous years prior to the filing of the
petition for adoption and maintains such
residence until the adoption decree is
entered,
c. that he has been certified by his
diplomatic or consular office or any
appropriate government agency to have
the legal capacity to adopt in his country,
and
d. that his government allows the
adoptee to enter his country as his
adopted child.
The requirements on residency and
certification of the aliens qualification to
adopt in his country may be waived for
the following:
(i) A former Filipino citizen who
seeks to adopt a relative within
the fourth (4th) degree of
consanguinity or affinity;
(ii) One who seeks to adopt the
legitimate child of his Filipino
spouse;
(iii) One who is married to a Filipino
citizen and seeks to adopt jointly
with his spouse a relative within
the fourth (4th) degree of
consanguinity or affinity of the
Filipino spouse.
231
XPN: if the adopter is the parent by
nature of the child to be adopted or the
spouse of such parent, he/she is not
required to meet the above age
requirement;
b) If married, his/her spouse must jointly
file for the adoption;
c) With capacity to act and assume all
rights and responsibilities of parental
authority under his national laws, and
has undergone the appropriate
counseling from an accredited
counselor in his/her country;
d) Not convicted of a crime involving moral
turpitude;
e) Eligible to adopt under his/her national
law;
f) In a position to provide the proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
g) Agrees to uphold the basic rights of the
child as embodied under Philippine
family laws, the U.N. Convention on the
Rights of the Child, and to abide by the
rules and regulations issued to
implement the provisions of this Act;
h) Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and
that adoption is allowed under his/her
national laws; and
i) Possesses all the qualifications and
none of the disqualifications provided
herein and in other applicable
Philippine laws.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

(3) The guardian with respect to the ward

after the termination of the guardianship
and clearance of his financial
accountabilities.

Husband and wife shall jointly adopt, except

in the following cases:

(i) If one spouse seeks to adopt the

legitimate child of the other
spouse; or
(ii) If one spouse seeks to adopt his
own illegitimate child: Provided,
however, That the other spouse
has signified his consent thereto;
or
(iii) If the spouses are legally
separated from each other.

In case husband and wife jointly adopt or

one spouse adopts the illegitimate child of
the other, joint parental authority shall be
exercised by the spouses.
Supervised Trial Within the Philippines (6 month period Within the country of the adopter
Custody discretionary upon the court to shorten (Mandatory; all expenses borne by adopter)
period or exempt parties from trial custody
like when the adopter is the biological parent
of the adoptee)
Petition for May include N/A
adoption 1. Prayer for change of name
2. Rectification of simulated birth
3. Declaration that child is abandoned,
dependent or neglected child or
foundling

Note: This is the only instance where

different special proceedings may be
consolidated
Who may be 1. Child legally available for adoption A Child legally free for adoption Efforts
adopted child below 18 years of age who has should first be exhausted in order that a child
been administratively declared available declared legally available for adoption be
for adoption placed under domestic adoption. It is only
2. The legitimate son or daughter of one after such efforts have been exhausted and
spouse to be adopted by the other still the child cannot be placed under
spouse; domestic adoption that he/she will be
3. An illegitimate son or daughter by a considered legally free in order to be
qualified adopter to improve his status available for inter-country adoption.
to that of legitimacy;
4. A person of legal age, if prior to the Note: Child under the Inter-country adoption
adoption, said person has been act refers to those below 15 years of age
consistently considered and treated
by the adopter/s as his or her own child
since minority;
5. A child whose adoption has been
previously rescinded; or
6. A child whose biological or adoptive
parent/s has died, provided, no
proceedings shall be initiated within 6
months from the time of death of said
parent/s (Sec. 5).

UNIVERSITY OF SANTO TOMAS 232

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS
Supporting N/A 1. Income Tax Returns
Documents 2. Police Clearance
3. Character Reference
4. Family Picture
5. Birth Certificate of adopter
Publication 3 successive weeks in a newspaper of N/A
general circulation in the province or city
where the court is situated
Where to file Family Court which has jurisdiction May be made through foreign placement
application agency which will then submit application to
the ICAB
\

Domestic Adoption Act

Rule on Domestic Adoption
Q: What is the requirement in order that the child may be
declared legally available for adoption?
A: There must be a certification which shall be issued by the
DSWD in lieu of a judicial order, thus making the entire
process administrative in nature. The certification shall be,
for all intents and purposes, the primary evidence that the
child is legally available in a domestic adoption and in an
inter-country adoption proceeding (Sec. 8 R.A. 9523, An Act
requiring certification of DSWD to declare a child legally
available for adoption as a prerequisite for adoption
proceedings).
Q: Whose written consent is necessary to the adoption?
A:
1. Adoptee, if ten years of age or over;
2. Biological parent(s) of the child, if known, or the legal
guardian, or the proper government instrumentality;
3. Legitimate and adopted child, ten years of age or over,
of the adopter and adoptee, if any;
4. Illegitimate child, ten years of age or over, of the
adopter if living with said adopter and the latters
spouse;
5. Spouse, if any, of the person adopting or to be
adopted (Sec. 9, R.A. 8552).
Q: Is the written consent of the natural parent to adoption
indispensable?
A: GR: Yes, it is expressly provided under the law on
domestic adoption [Sec. 9(c), R.A. 8552].
XPN: In case of abandonment. The act of abandonment
imports "any conduct of the parent which evinces a
settled purpose to forego all parental duties and
relinquish all parental claims to the child." It means
"neglect or refusal to perform the natural and legal
obligations of care and support which parents owe their
children (Cang v. CA, G.R. No. 105308, Sept. 25, 1998).
A: A child who has no proper parental care or
guardianship, or whose parent(s) have deserted him/her for
a period of at least three (3) continuous months, which
includes a foundling [Sec. 2(3),].
Q: Who is a neglected child?
A: A child whose basic needs have been deliberately
unattended or inadequately attended within a period of
three (3) continuous months [Sec. 2(4), Ibid.]. Neglect may
occur in two (2) ways:
1. There is physical neglect when the child is
malnourished, ill-clad, and without proper shelter. A
child is unattended when left by himself/herself
without proper provisions and/or without proper
supervision [Sec. 2(4)(a), Ibid.].
2. There is emotional neglect when the child is
maltreated, raped, seduced, exploited, overworked, or
made to work under conditions not conducive to good
health; or is made to beg in the streets or public
places; or when children are in moral danger, or
exposed to gambling, prostitution, and other vices
[Sec. 2(4)(b), Ibid.].
Q: May the petition for adoption include a change of
name?
A: Yes, the Rules on Adoption authorizes that the petition
for adoption may include an allegation and prayer for
change of name.
Q: In case the petition for adoption includes a change of
name, what must the title or caption contains?
A:
1. Registered name of the child;
2. Aliases or other names by which the child has been
known; and
3. Full name by which the child is to be known (Sec. 10,
A.M. No. 02-06-02).

Q: Who is an abandoned child?

233 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What is the procedure under the Domestic Adoption

Act?

A:

Petition for Adoption

Publication of order of hearing at least

once a week for 3 consecutive weeks

At the discretion of the court, copies of the order of hearing

shall be furnished to the office of the SolGen through the
provincial or city prosecutor, the DSWD and the biological
parents of the adoptee, if known.

If a change of name of the adoptee is prayed for in the

petition, notice to the SolGen is mandatory

Child and Home Study Reports

1. A social worker verifies with the Civil Registry the real
identity of the adoptee, and the fact that he is legally
available for adoption
2. He may make recommendations to the court if he
finds some grounds to deny the petition

Hearing
GR: To be held within 6 months from the date of issuance
of order of hearing
XPN: If the petition includes a change of name, hearing
must not be within 4 months after last publication, nor
within 30 days prior to an election Q: What is the effect of the petition for adoption in
relation to use of surnames?

GR: Supervised trial custody for a period of at least 6 A: Pursuant to Art. 189 of the Family Code which states that
months the adopted child shall acquire the reciprocal rights and
XPN: Same as exceptions from requirements of residency obligations arising from the relationship of a parent and
and certification child, including the right of the adopted to use the surname
of the adopter, the adoptee has both the right and
obligation to use the surname of the adopter, and that
Decree of Adoption upon reaching the age of majority, he may file a petition for
Note: In case of change of name, the decree shall be submitted
to the Civil Registrar where the court issuing the same is
situated
UNIVERSITY OF SANTO TOMAS 234
2013 GOLDEN NOTES

Entry in Book of Adoption

 SPECIAL PROCEEDINGS
a change of surname, as the use by the adoptee of the
surname of the adopter is more an incident rather than the
object of adoption proceedings(Republic v. CA, G.R. No.
97906, May 21, 1992).
Note: This ruling may imply that what may be included in a petition
for adoption is only the first or given name of the adoptee and not
the surname, for he has the right and obligation, at least initially to
use the surname of the adopter (Agpalo, Handbook on Special
Proceedings, p. 193, 2003 ed.).
Q: On June 25, 1990, spouses Samuel R. Dye, Jr. and
Rosalina Due Dye filed a petition before the RTC of
Angeles City to adopt Maricel and Alvin, younger siblings
of Rosalina. Samuel R. Dye, Jr. a member of the United
States Air Force is an American citizen who resided at the
Clark Air Base in Pampanga. His wife Rosalina is a former
Filipino who became a naturalized American. Both Maricel
and Alvin Due, as well as their natural parents, gave their
consent to the adoption. The RTC granted the petition for
adoption. Is the trial court correct?
A: No, Samuel Robert Dye, Jr. who is an American and,
therefore, an alien is disqualified from adopting the minors
Maricel and Alvin under Art. 184 of the Family Code. He is
not a former Filipino citizen who seeks to adopt a relative
by consanguinity. Nor does he seek to adopt his wife's
legitimate child. Although he seeks to adopt with his wife
her relatives by consanguinity, he is not married to a
Filipino citizen, for Rosalina was already a naturalized
American at the time the petition was filed, thus excluding
him from the coverage of the exception. The law here does
not provide for an alien who is married to a former Filipino
citizen seeking to adopt jointly with his or her spouse a
relative by consanguinity, as an exception to the general
rule that aliens may not adopt.
On her own, Rosalina Dye cannot adopt her brother and
sister for the law mandates joint adoption by husband and
wife, subject to exceptions. Article 29 of P.D. 603 (Child and
Youth Welfare Code) retained the Civil Code provision that
husband and wife may jointly adopt. The Family Code
amended this rule by scrapping the optional character of
joint adoption and making it now mandatory. Article 185 of
the Family Code provides: Husband and wife must adopt,
except in the following cases: (1) When one spouse seeks to
adopt his own illegitimate child; (2) When one spouse seeks
to adopt the legitimate child of the other. None of the
above exceptions applies to Samuel and Rosalina Dye, for
they did not petition to adopt the latter's child but her
brother and sister (Republic v. Vergara, G.R. No. 95551,
Mar. 20, 1997).
EFFECTS OF ADOPTION
Q: What are the effects of adoption?
A:
1. All legal ties between the biological parents and the
adoptee shall be severed and the same shall then be
vested on the adopter/s, except where the biological
parent is the spouse of the adopter;
235
2. The adoptee shall be considered the legitimate child of
the adopter/s for all intents and purposes and shall be
entitled to all the rights and obligations provided by
law to legitimate children born to them without
discrimination of any kind; and
3. In legal and intestate succession, the adopter/s and
the adoptee shall have reciprocal rights of succession
without distinction from legitimate filiation. However,
if the adoptee and his biological parent/s had left a
will, the law on testamentary succession shall govern
(Secs. 16-18, R.A. 8552).
Note: The adoptee is no longer entitled to any legitime
or share in the estate of the biological parent since all
the legal ties are severed, except only through testate
succession where a legacy or devise is given in his
favor.
Note: The decree of adoption shall order the Civil Registrar where
the adoption was registered to issue a certificate of birth which
shall not bear that it is a new or amended certificate and shall state
among others, the following: registry number, registration date,
name of child, sex, date of birth, place of birth, name and
citizenship of adoptive mother and father, and the date and place
of their marriage, when applicable[Sec. 16, 3(b), A.M. No. 02-06-
02].
Q: When should the decree of domestic adoption take
effect?
A: It shall take effect as of the date of filing of the original
petition (Sec. 16, Ibid.).
Q: Who has the burden of proof in establishing adoption?
A: Upon the person claiming such relationship. (Vda. de
Jacob v. CA, G.R. No.135216, Aug. 17, 1999)
Q: What is the nature of adoption proceedings and its
records?
A: All hearings in adoption cases, after compliance with the
jurisdictional requirements shall be confidential and shall
not be open to the public. All records, books, and papers
relating to the adoption cases shall be strictly confidential
(Sec. 18, A.M. No. 02-06-02).
Q: What is the duty of the court if it finds that the
disclosure of the information to a third person is
necessary for security reasons upon proper motion?
A: The court may order the necessary information to be
released, restricting the purposes for which it may be used
(par. 2, Sec. 18, Ibid.).
Q: What are the prohibited acts under domestic adoption?
A:
1. Obtaining consent for an adoption through coercion,
undue influence, fraud, improper material
inducement, or other similar acts;
2. Non-compliance with the procedures and safeguards
provided by law for adoption;
3. Subjecting or exposing the child to be adopted to
danger, abuse or exploitation;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
4. Fictitious registration of the birth of a child under the
name of person(s) who is not his/her biological
parent(s);
5. Cooperation of physician or nurse or hospital
personnel in simulation of birth; and
6. Violation of confidentiality and integrity of adoption
processes (Sec. 21, R.A. 8552).
Q: What is simulation of birth?
A: It refers to the tampering of the civil registry to make it
appear in the birth records that a certain child was born to
a person who is not his biological mother, thus causing such
child to lose his true identity and status [Sec. 3(s), A.M. No.
02-06-02].
Note: The mere registration of a child in his or her birth
certificates as the child of the supposed parents is not a valid
adoption. It does not confer upon the child the status of an
adopted child and legal rights of such child (Rivera v. Villanueva,
G.R. No. 141501 [2006]).
INSTANCES WHEN ADOPTION MAY BE RESCINDED
Q: What are the grounds for rescission of adoption?
A: Upon the petition of the adoptee, with the assistance of
the DSWD if a minor or though over 18 is incapacitated, on
any of the following grounds committed by the adopter/s:
1. Repeated physical and verbal maltreatment by
the adopter/s despite having undergone
counseling;
2. Attempt on the life of the adoptee;
3. Sexual assault or violence; or
4. Abandonment and failure to comply with parental
obligations (Sec. 19, Ibid.).
Note: Only the adoptee can rescind the decree of adoption.
However, the adopter is not left without any remedy as he may
deny to an adopted child his legitime and by will, may freely
exclude him from having a share in the disposable portion of his
estate. The new law had already abrogated or repealed the right of
an adopter under the Civil and Family Codes to rescind a decree of
adoption (Lahom v. Sibulo, G.R. No. 1439889, July 14, 2003).
Q: What is the period to file for rescission of adoption?
A: The adoptee, if incapacitated, must file the petition for
rescission within 5 years after he reaches the age of
majority, or if he was incompetent, within 5 years after
recovery from such incompetency. (Sec. 21, A.M. No. 02-06-
02)
EFFECTS OF RESCISSION OF ADOPTION
Q: What are the effects of rescission of adoption?
A:
1. The parental authority of the adoptee's biological
parent/s, if known, or the legal custody of the DSWD
shall be restored if the adoptee is still a minor or
incapacitated;
2. The reciprocal rights and obligations of the adopter/s
and the adoptee to each other shall be extinguished;
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
3. The court shall order the Civil Registrar to cancel the
amended certificate of birth of the adoptee and
restore his or her original birth certificate;
4. The successional rights shall revert to its status prior to
adoption, but only as of the date of judgment of
judicial rescission; and
5. The vested rights acquired prior to judicial rescission
shall be respected (Sec. 23, Ibid.).
INTER-COUNTRY ADOPTION
WHEN ALLOWED
Q: When may inter-country adoption be allowed?
A: It shall only be allowed when all the possibilities for
domestic adoption of the child have been exhausted and
that inter-country adoption is in the best interest of the
child (Sec. 27a, A.M. No. 02-06-02).
Q: What is the rule on family selection?
A: No child shall be matched to a foreign adoptive family
unless it is satisfactorily shown that the child cannot be
adopted locally (Sec. 11, R.A. 8043).
Q: What is matching?
A: It refers to the judicious pairing of the adoptive child and
the applicant to promote a mutually satisfying parent-child
relationship [Sec. 3(g), R.A. 8043].
Q: What is the role of DFA in inter-country adoption?
A: It shall set-up a system by which Filipino children sent
abroad for trial custody are monitored and checked as
reported by the authorized and accredited inter-country
adoption agency as well as the repatriation to the
Philippines of a Filipino child whose adoption has not been
approved (par. 3, Sec. 14; R.A. 8043).
Q: What is the duty of the ICAB upon receipt of applicants
matching proposal and confirmation of the pre-adoptive
placement plans by foreign agency?
A: It shall issue the placement authority within 5 working
days. The copy of the placement authority shall be
transmitted to the DFA and to the foreign adoption agency
(Sec. 39, Rules and Regulations of R.A. 8043).
Q: When does the trial custody of the child starts?
A: Upon the actual physical transfer of the child to the
applicant who, as actual custodian shall exercise substitute
parental authority over the person of the child (Sec. 44,
Rules and Regulations of R.A. 8043).
Q: What is the duty of the foreign adoption agency during
the trial custody period?
A: It shall notify the ICAB of any incident that may have
resulted in a serious impairment of the relationship
236
 SPECIAL PROCEEDINGS
between the applicant and the child or any serious ailment
or injury suffered by the child as soon as possible but not
later than 72 hours after the incident or the ailment of the
child (Sec. 46, Rules and Regulations of R.A. 8043).
Q: What are the grounds for termination of pre-adoptive
relationship?
A:
1. If the relationship is unsatisfactory to the child or
applicant; or
2. The continued placement is not in the best interest of
the child (Sec. 47, Rules and Regulations of R.A. 8043).
Note: No termination of pre-adoptive relationship shall be made
unless it is shown that the foreign adoption agency has exhausted
all the means to remove cause of unsatisfactory relationship.
Q: What is the last resort if the ICAB in coordination with
the foreign adoption agency fails to find a new placement
for the child within reasonable time?
A: Repatriation of the child (Sec. 49, Rules and Regulations
of R.A. 8043).
Q: Whose consent is necessary if a satisfactory pre-
adoptive relationship is formed between the applicant
and the child?
A: DFAs consent which must be transmitted by the ICAB to
the foreign agency within thirty (30) days after receipt of
the latters request (Sec. 50, Rules and Regulations of R.A.
8043).
Q: After the completion of trial custody period, what must
the applicant do?
A: He shall file the petition for adoption with the proper
court or tribunal in the country where the applicant resides
within six (6) months (Sec. 51, Rules and Regulations of R.A.
8043).
FUNCTIONS OF THE RTC
Q: What is the function of the RTC in inter-country
adoption?
A: The RTC merely receives applications from foreign
adoption agencies evaluate and assess the qualifications of
the proposed adopter, and the court must submit its
findings and the application papers to the ICAB. The
supervised trial custody is conducted and the decree of
adoption is issued by the court in the place of the adopter
abroad (Sec. 10, R.A. 8043).
Q: When is an adoption presumed illegal?
A:
1. The consent for an adoption was acquired through, or
attended by coercion, fraud, or improper material
inducement;
2. There is no authority from the ICAB to effect adoption;
237
3. The procedures and safeguards placed under the laws
for adoption were not complied with; or
4. If the child to be adopted is subject or exposed to
danger, abuse and exploitation (Sec. 16, R.A. 8043).
Q: What are the other acts which constitute violations of
inter-country adoption act?
A:
1. Violation of confidentiality; (Sec. 55, Rules and
Regulations of R.A. 8043)
2. Child trafficking (Sec. 57 (c), Rules and Regulations of
R.A. 8043).
BEST INTEREST OF THE MINOR STANDARD
Q: What is the Best Interest of the Minor Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival, protection,
and feelings of security of the minor and most encouraging
to his physical, psychological and emotional development.
It also means the least detrimental available alternative for
safeguarding the growth and development of the minor
(Sec. 14, AM No. 03-04-04-SC).
WRIT OF HABEAS CORPUS
Q: What is the writ of habeas corpus?
A: It is a writ directed to the person detaining another and
commanding him to produce the body of the prisoner at a
certain time and place with the day and the cause of his
caption and detention to do, submit to and receive
whatsoever, the court or judge awarding the writ shall
consider in that behalf.
Note: It is regarded as palladium of liberty, a prerogative writ
which does not issue as a matter of right but in the sound
discretion of the court or judge.
Q: When does the court acquire jurisdiction over the
person of the respondent?
A: The writ itself plays the role of summons in ordinary
actions; the court acquires jurisdiction over the person of
the respondent by mere service of the writ. (Sec. 7, Rule
102)
Q: To what instances may habeas corpus extend?
A:
1. Cases of illegal confinement or detention by which a
person is deprived of his liberty; and
2. Cases by which the rightful custody of the person is
withheld from the person entitled thereto (Sec. 1, Rule
102).
Note: To justify the grant of the petition, the restraint of liberty
must be an illegal and involuntary deprivation of freedom of
action. The illegal restraint of liberty must be actual and effective,
not merely nominal or moral (Ilusorio v. Bildner, G.R. Nos.135789-
90, May 16, 2000).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: In 1978, Pete was convicted by the then CFI of Cavite on
the sole basis of his extrajudicial confession. The decision
soon became final and Pete has since been serving
sentence until now, although to this day, he insists that he
is innocent and that his confession had been coerced. He
later learned of the SCs decision in People v. Galit in
which the Court reversed a conviction that had been
based solely on an uncounselled confession. He forthwith
caused a petition for habeas corpus to be filed, alleging
that his confinement has all along been illegal. The
Government opposed the petition on the ground that the
decision of conviction had long become final and may no
longer be reopened and that he is in fact serving sentence.
Will habeas corpus lie? Reasons. (1988 Bar Question)
A: Yes because once a deprivation of a constitutional right
is shown to exist, the court that rendered the judgment is
deemed ousted of jurisdiction and habeas corpus is the
appropriate remedy to assail the legality of the detention
(Gumabon v. Director of Prisons, G.R. No. L-30026, Jan. 30,
1971).
Q: Luis Ramos initiated a complaint-affidavitfor
deportation before the Bureau of Immigration and
Deportation (BID) against Jimmy Go alleging that the
latter is an illegal and undesirable alien. The complaint for
deportation was dismissed but was subsequently reversed
by the Board of Commissioners; hence the corresponding
Charge Sheet was filed against Jimmy, charging him of violating
the Philippine Immigration Act of 1940. The Board of
Commissioners issued a warrant of deportation which led
to the apprehension of Jimmy. Jimmy commenced a
petition for habeas corpus. Should the petition be
granted?
A: No, once a person detained is duly charged in court, he
may no longer question his detention through a petition for
issuance of a writ of habeas corpus. His remedy would be
to quash the information and/or the warrant of arrest duly
issued. The writ of habeas corpus should not be allowed
after the party sought to be released had been charged
before any court. The term court in this context includes
quasi-judicial bodies of governmental agencies authorized
to order the persons confinement, like the Deportation
Board of the Bureau of Immigration(Carlos Go Sr. v. Luis
Ramos, G.R. No. 167569; Jimmy Go v. Luis Ramos, G.R. No.
167570; Hon. Alipio Fernandez v. Jimmy Go, G.R. No.
171946, Sept. 4, 2009).
Q: May a petition for writ of habeas corpus be properly
filed together with a petition for certiorari?
A: Yes. The writ of habeas corpus and certiorari may be
ancillary to each other where necessary to give effect to the
supervisory powers of the higher courts. A writ of habeas
corpus reaches the body and the jurisdictional matters, but
not the record. A writ of certiorari reaches the record but
not the body. Hence, a writ of habeas corpus may be used
with the writ of certiorari for the purpose of review (Galvez
v. CA, G.R. No. 114046, Oct. 24, 1994).
Q: A municipal trial judge, who is related within the third
degree of consanguinity to Archie, complainant, has
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
conducted an ex parte preliminary investigation without
affording Ben, accused, opportunity to be heard and
thereafter issued a warrant of arrest, pursuant to which
Ben has been detained, and subsequently forwarded the
records of the case to the provincial prosecutor for
appropriate action. Will habeas corpus and certiorari lie?
A: Yes, a petition for habeas corpus to relieve Ben under
the illegal warrant of arrest, and for certiorari to assail the
warrant of arrest may be filed, and the judge may properly
be made respondent, even though the accused has been in
physical custody of the Provincial warden, as the judge has
constructive custody of the accused. For the illegal order
and warrant of arrest issued by the judge subsists and Ben
is offered no speedy, adequate remedy or appeal in the
ordinary course of law. The writ of habeas corpus, although
not designed to interrupt the orderly administration of
justice, can be invoked, in fine, by the attendance of special
circumstance that requires immediate action (Calvan v. CA,
G.R. No.140823, Oct. 3, 2000).
Q: What is the nature of the petition?
A: It is an inquisition by the government at the suggestion
and instance of an individual, most probably, but still in the
name and capacity of the sovereign. It is a proceeding in
rem that is instituted for the purpose of fixing the status of
a person and that there can be no judgment entered
against anybody since there is no real plaintiff and
defendant (Alimpoos v. CA, G.R. No. L-27331, July 30, 1981).
Note: In habeas corpus cases, the judgment in favor of the
applicant cannot contain a provision for damages.
CONTENTS OF THE PETITION
Q: What should a verified petition for a writ of habeas
corpus contain?
A:
1. That the person in whose behalf the application is
made is imprisoned or restrained of his liberty;
2. The officer or name of the person by whom he is
so imprisoned or restrained; or, if both are unknown
or uncertain, such officer or person may be described
by an assumed appellation, and the person who is
served with the writ shall be deemed the person
intended;
3. The place where he is so imprisoned or
restrained, if known;
4. A copy of the commitment or cause of detention
of such person, if it can be procured without impairing
the efficiency of the remedy; or, if the imprisonment
or restraint is without any legal authority, such fact
shall appear (Sec. 3, Rule 102).
CONTENTS OF THE RETURN
When the person to be produced is imprisoned or
restrained by an officer, the person who makes the return
shall state therein, and in other cases the person in whose
custody the prisoner is found shall state, in writing to the
238
 SPECIAL PROCEEDINGS
court or judge before whom the writ is returnable, plainly
and unequivocally:
1. Whether he has or has not the party in his custody
or power, or under restraint;
2. If he has the party in his custody or power, or under
restraint, the authority and the true and whole
cause thereof, set forth at large, with a copy of the
writ, order, execution, or other process, if any, upon
which the party is held;
3. If the party is in his custody or power or is
restrained by him, and is not produced, particularly
the nature and gravity of the sickness or infirmity of
such party by reason of which he cannot, without
danger, be brought before the court or judge;
4. If he has had the party in his custody or power, or
under restraint, and has transferred such custody or
restraint to another, particularly to whom, at what
time, for what cause, and by what authority such
transfer was made (Sec. 10, Rule 102).
Q: Is the return considered as evidence?
A: If it appears that the prisoner is in the custody of a public
officer under a warrant of commitment in pursuance of
law, the return shall be considered prima facie evidence of
the validity of the restraint
If he is restrained of his liberty by an alleged private
authority, the return shall be considered only as a plea of
the facts therein set forth, and the party claiming the
custody must prove such facts (Sec. 13, Rule 102).
Q: When the soldiers defense to a petition for habeas
corpus is that they released the detainees for whom the
petition was filed, but the allegation of release is disputed
by the parents of the detainees, and it is not denied that
the detainees have not been seen or heard from since
their supposed release, do the parents have the burden in
law of proving that the their children are still detained by
the soldiers or does the burden shifts to the soldiers?
A: The general rule in the number of cases is that the
release of a detained person renders moot and academic
the petition for habeas corpus. The cited general rule
postulates that the release of the detainees is an
established fact and not in dispute, and they do not
constitute to be missing persons. Where, however, there
are grounds for grave doubts about the alleged release of
the detainees, where the standard and prescribed
procedure has not been followed, then the burden of
proving by clear and convincing evidence the alleged
release is shifted to the soldiers, as the respondents to the
petition (Dizon v. Eduardo, G.R. No. L-59118, Mar. 3, 1988).
DISTINGUISH PEREMPTORY WRIT FROM PRELIMINARY
CITATION
Q: What is the difference between a preliminary citation
and a peremptory writ?
A:
1. Preliminary citation is issued when a government
officer has the person in his custody, the illegality of
which is not patent, to show cause why the writ of
habeas corpus should not issue.
2. Peremptory writ is issued when the cause of the
detention appears to be patently illegal and the non-
compliance therewith is punishable (Lee Yick Hon v.
Collector of Customs, G.R. No. 16779, Mar. 30, 1921).
Q: What are the grounds for the issuance of writ of habeas
corpus in judicial proceeding?
A:
1. There has been a deprivation of a constitutional right
resulting in restraint of person;
2. The court has no jurisdiction to impose the sentence;
3. An excessive penalty has been imposed, the sentence
being void as to excess; or
4. Where the law is amended, as when the penalty is
lowered (Feria v. CA, G.R. No. 122954, Feb. 15, 2000).
Q: Rita Labriaga was caught selling two tea bags of
marijuana in Daraga, Albay in a buy-bust operation
conducted by the Narcotics Command. Rita was found in
possession of 115 grams of marijuana. Rita was convicted
for violation of R.A. 6425 and was sentenced for life
imprisonment. Rita filed a motion for reconsideration with
modification of sentence. Rita prays for the retroactive
application to her case of R.A. 7659 which imposes
imprisonment of prision correccional for less than 250
grams of marijuana and for her eventual release from
confinement at the Correctional Institution for Women in
Mandaluyong as a consequence of the application of the
new law to her case. It appears that she already served
sentence for a more than a year. Should the motion be
granted?
A: Yes. The appropriate remedy is to file a petition for
habeas corpus considering that the decision in this case is
final. However, in accordance with the ruling in Angeles v.
Bilibid Prison G.R. No. 117568, Jan. 4, 1995 and People v.
Agustin, G.R. No. 98362, Sept. 5, 1995, in which the SC held
that the rules on habeas corpus should be liberally applied
in cases which are sufficient in substance, the motion in this
case must be treated as a substantial compliance with the
rules on habeas corpus. Rita Labriaga, having served more
than the maximum imposable penalty of prision
correccional, should be released (People v. Labriaga, G.R.
No. 92418, Nov. 20, 1995).
WHEN NOT PROPER/APPLICABLE
Q: When is habeas corpus not applicable?
A: It is not applicable when the purpose is to:
1. enforce a right of service;
2. determine whether a person has committed a crime;
3. determine a disputed interstate boundary line;
4. punish respondent;
5. recover damages or other money award;
6. assert or vindicate denial of right to bail (In re: Azucena
Garcia, G.R. No. 141443, Nov. 18, 2000); and
239 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
7. correct errors in appreciation of facts or law.
WHEN WRIT DISALLOWED/DISCHARGE
Q: In what instances shall a writ be disallowed or
discharged?
A:
1. In cases of supervening events such as issuance of a
process and filing of an information (Velasco v. CA,
G.R. No. 118844, July 7, 1995);
2. In cases of improper arrest or lack of preliminary
investigation (Paredes v. Sandiganbayan, G.R. No.
89989, Jan. 28, 1991);
Note: proper remedy incase of improper arrest or lack
of preliminary investigation is to quash warrant and
conduct or direct preliminary investigation.
3. In cases of invalid arrest due to deportation cases
cured by filing of the deportation proceedings (Santos
v. Commissioner of Immigration, G.R. No.L-25694, Nov.
29, 1976).
4. Petition for habeas corpus is not the appropriate
vehicle for asserting a right to bail or vindicating its
denial (Galvez v. Court of Appeals, G.R. No. 114046
[1994]).
5. Habeas corpus does not lie where the petitioner has
the remedy of appeal or certiorari because it will not
be permitted to perform the functions of a writ of
error or appeal for the purpose of reviewing mere
errors or irregularities in the proceedings (Galvez v.
Court of Appeals, G.R. No. 114046 [1994]).
Note: In all petitions for habeas corpus, the court must inquire into
every phase and aspect of petitioners detention, from the
moment petitioner was taken into custody up to the moment the
court passes upon the merits of the petition and only after such a
scrutiny can the court satisfy itself that the due process clause of
the Constitution has been satisfied (Bernarte v. CA, G.R. No.
107741, Nov. 18, 1996).
Q: What is the effect if the person arrested is judicially
charged within 3 days from his detention during the
suspension of the writ?
A: It may preclude the inquiry into the legality of the arrest
or detention in the petition for habeas corpus and justifies
its dismissal, as the question of the legality of the arrest or
detention should be raised in the pending criminal case,
either in a motion to quash the warrant of arrest or the
information itself (Bernarte v. CA, supra.).
Q: Mariano was convicted by the RTC for raping Victoria
and meted the penalty of reclusion perpetua. While
serving sentence, Mariano and Victoria got married.
Mariano filed a motion in said court for his release from
the penitentiary on his claim that under R.A. 8353, his
marriage to Victoria extinguished the criminal action
against him for rape, as well as the penalty imposed on
him. The court denied the motion on the ground that it
had lost jurisdiction over the case after its decision had
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
become final and executory. What remedy/ies should the
counsel of Mariano take to secure his proper and most
expeditious release from the National Penitentiary?
Explain. (2005 Bar Question)
A: His counsel should file a petition for habeas corpus for
the illegal confinement of Mariano or a motion in the court
which convicted Mariano to nullify the execution of his
sentence or the order of his commitment on the ground
that a supervening development had occurred.
Q: Is an application or admission to bail constitutes a
waiver to object on accounts of illegal arrest, lack or
irregular preliminary investigation?
A: No, an application or admission to bail shall not bar the
accused from challenging the validity of the his arrest, or
the legality of warrant issued therefore, or from assailing
the regularity or questioning the absence of a preliminary
investigation of the charge against him, provided that he
raises them before entering his plea (Sec. 26, Rule 114;
A.M. No.00-5-03-SC).
Q: Edward Serapio is under detention pursuant to the
order of arrest issued by the Sandiganbayan on April 25,
2001 after the filing by the Ombudsman of the amended
information for plunder against Serapio and his co-
accused. Edward had in fact voluntarily surrendered
himself to the authorities on April 25, 2001 upon learning
that a warrant for his arrest had been issued. He filed a
petition for habeas corpus contending that he is entitled
to the issuance of said writ because the State, through the
prosecution's refusal to present evidence and by the
Sandiganbayan's refusal to grant a bail hearing, has failed
to discharge its burden of proving that as against him,
evidence of guilt for the capital offense of plunder is
strong. He also maintains that the issuance by the
Sandiganbayan of new orders cancelling the bail hearings
which it had earlier set did not render moot and academic
the petition for issuance of a writ of habeas corpus, since
said orders have resulted in a continuing deprivation of
Serapio's right to bail. Should the petition for habeas
corpus be granted?
A: No. The general rule that habeas corpus does not lie
where the person alleged to be restrained of his liberty is in
the custody of an officer under process issued by a court
which had jurisdiction to issue the same applies. Moreover,
a petition for habeas corpus is not the appropriate remedy
for asserting one's right to bail. It cannot be availed of
where accused is entitled to bail not as a matter of right but
on the discretion of the court and the latter has not abused
such discretion in refusing to grant bail, or has not even
exercised said discretion. The proper recourse is to file an
application for bail with the court where the criminal case is
pending and to allow hearings thereon to proceed.
The issuance of a writ of habeas corpus would not only be
unjustified but would also preempt the Sandiganbayan's
resolution of the pending application for bail of Serapio.
The recourse of Serapio is to forthwith proceed with the
240
 SPECIAL PROCEEDINGS
hearing on his application for bail (Serapio
Sandiganbayan, G.R. No. 148468, Jan. 28, 2003).
Q: After Alma had started serving her sentence for
violation of B.P. 22, she filed a petition of writ of habeas
corpus, citing Vaca v. CA where the sentence of
imprisonment of a party found guilty of violation of B.P.
22 was reduced to a fine equal to double the amount of
the check involved. She prayed that her sentence be
similarly modified and that she be immediately released
from detention. In the alternative, she prayed that
pending determination on whether the Vaca ruling applies
to her, she be allowed to post bail pursuant to Sec. 14,
Rule 102, which provides that if a person is lawfully
imprisoned or restrained on a charge of having committed
an offense not punishable by death, he may be admitted
to bail in the discretion of the court. Accordingly, the trial
court allowed Alma to post bail and then ordered her
release. In your opinion, is the decision of the trial court
correct?
1. Under Rule 102?
2. Under the Rules of Criminal Procedure? (2008 Bar
Question)
A:
1. No. Section 4, Rule 102 of the Rules of Court (habeas
corpus) does not authorize a court to discharge by writ
of habeas corpus a person charged with or convicted
of an offense in the Philippines, or of a person
suffering imprisonment under lawful judgment.
2. No. The trial courts ordering releasing Alma on bail
even after judgment against her has become final and
in fact she has started serving sentence, is a brazen
disregard of the mandate in Section 24, Revised Rules
of Criminal Procedure that: In no case shall bail be
allowed after the accused has commenced to serve
sentence (People v. Fitzgerald, G.R. No. 149723, Oct.
27, 2006).
Q: May the person released by virtue of habeas corpus be
imprisoned again for the same offense?
A: GR: No.
XPN: By the lawful order or process of a court having
jurisdiction of the cause or offense (Sec. 17, Rule 102).
Q: Does the applicants temporary release render the
petition moot and academic?
A: Yes, unless there are certain restraints which preclude
freedom of action. (Villavicencio v. Lukban, G.R. No. L-
14639, Mar. 25, 1919)
Q: Upon a complaint that he is issuing fake Alien
Certificate Registration, Morgan, a British national was
arrested by the Bureau of Immigration and Deportation
(BID). The Board of Commissioners (BOC) of the BID issued
a deportation order against Morgan. A week after, Elisa,
Morgans wife, filed a petition for the issuance of a writ of
habeas corpus with the Manila RTC naming the
Immigration Commissioner as respondent. After trial, the
v. RTC dismissed Elisas petition on the ground that a
petition for the issuance of a writ of habeas corpus is not
the proper remedy. Is the RTC correct?
A: Yes, the power to deport aliens is vested on the
President of the Philippines, subject to the requirements of
due process. The Immigration Commissioner is vested with
authority to deport aliens under Section 37 of the
Philippine Immigration Act of 1940, as amended. Thus, a
party aggrieved by a Deportation Order issued by the BOC
is proscribed from assailing said order in the RTC via a
petition for a writ of habeas corpus.
In case such motion for reconsideration is denied by the
BOC, the aggrieved party may appeal to the Secretary of
Justice and, if the latter denies the appeal, to the Office of
the President of the Philippines. The party may also choose
to file a petition for certiorari with the CA under Rule 65 of
the Rules of Court, on the ground that the Secretary of
Justice acted with grave abuse of discretion amounting to
excess or lack of jurisdiction in dismissing the appeal, the
remedy of appeal not being an adequate and speedy
remedy. In case the Secretary of Justice dismisses the
appeal, the aggrieved party may also resort to filing a
petition for review under Rule 43 of the Rules of Court, as
amended (Johnson v. Makalino, G.R. No. 139255, Nov. 24,
2003).
Q: Roxanne, a widow, filed a petition for habeas corpus
with the CA against Major Amor who is allegedly detaining
her 18-year old son Bong without authority of law. After
Major Amor had filed a return alleging the cause of
detention of Bong, the CA promulgated a resolution
remanding the case to the RTC for a full-blown trial due to
the conflicting facts presented by the parties in their
pleadings. In directing the remand, the CA relied on Sec. 9
(1), in relation to Sec. 21 of B.P. 129 conferring upon said
court the authority to try and decide habeas corpus cases
concurrently with the RTCs. Did the CA act correctly in
remanding the petition to the RTC? Why? (1993 Bar
Question)
A: No, because while the CA has original jurisdiction over
habeas corpus concurrent with the RTC, it has no authority
to remand to the latter original actions filed with the
former. On the contrary, the CA is specifically given the
power to receive evidence and perform any and all acts
necessary to resolve factual issues raised in cases falling
within its original jurisdiction (Sec. 9, BP 129, as amended
by EO 33, s. 1986).
Q: What is the period of appeal in habeas corpus cases?
A: Under B.P. 129, the period of appeal in habeas corpus
cases shall be forty-eight (48) hours from the notice of the
judgment appealed from.
241 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

DISTINGUISH WRIT OF HABEAS CORPUS FROM WRIT OF AMPARO, HABEAS DATA AND KALIKASAN

HABEAS CORPUS AMPARO HABEAS DATA KALIKASAN

Literal interpretation
You have the body To protect You have the data It is a Filipino word which
means nature in English
Description
Writ directed to the Remedy available to Remedy available to any Special remedy available
person detaining any person whose person whose right to to a natural or juridical person,
another, commanding right to life, liberty, privacy in life, liberty or entity authorized by law,
him to produce the and security is security is violated or peoples organization, non-
body of the prisoner at violated or threatened by an unlawful governmental organization, or
a designated time and threatened with act or omission of a public any public interest group
place, with the day violation by an official or employee, or of a accredited by or registered
and cause of his unlawful act or private individual or entity with any government agency,
capture and detention, omission of a public engaged in the gathering, on behalf of persons whose
to do, submit to, and official or employee, collecting, or storing of constitutional right to a
receive whatsoever or of a private data or information balanced and healthful ecology
the court or judge individual or entity. regarding the person, is violated, or threatened with
awarding the writ shall family, home and violation by an unlawful act or
consider in that behalf. correspondence of the omission of a public official or
aggrieved party. employee, or private individual
or entity, involving
environmental damage of such
magnitude as to prejudice the
life, health or property of
inhabitants in two or more

UNIVERSITY OF SANTO TOMAS 242

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

cities or provinces.
Office of the Remedy
To direct the person To direct the public To order the disclosure or To order the protection of the
detaining another to officers involved to destruction of data relating constitutional right to a
produce the body of conduct an to the right to life, liberty balanced and healthful ecology
the person being investigation as to or security of a person. and restrain further acts that
detained and show the the whereabouts and cause environmental damage
cause of detention. legality of the of such a magnitude that
detention of a prejudices the right to life,
missing person. health or property of
inhabitants in two or more
cities or provinces.
Coverage
Involves the right to Involves the right to It protects the image, Constitutional right to a
liberty of and rightful life, liberty, and privacy, honor, balanced and healthful
custody by the security of the information, self- ecology.
aggrieved party. aggrieved party and determination and
covers extralegal freedom of information of
killings and enforced a person.
disappearances.
Where to file
RTC or any judge RTC of the place RTC where the petitioner In SC or any stations of the CA.
thereof, CA or any where the threat, act or respondent resides, or
member thereof in or omission was that which has jurisdiction
instances authorized committed or any of over the place where the
by law; Sandiganbayan its elements data or information is
in aid of its appellate occurred; SB or any gathered, collected or
jurisdiction, or SC or justice thereof; CA or stored, at the option of the
any member thereof. any justice thereof; petitioner; or with SC, CA
SC or any justice or SB when the action
thereof. concerns public data files
or government offices.

Who may file a petition

1. Party for whose In the following 1. Any aggrieved party; A natural or juridical person,
relief it is order: 2. However, in cases of entity authorized by law,
intended; or 1. Any member of extralegal killings and peoples organization, non-
the immediate enforced governmental organization, or
2. Any person on his family disappearances: any public interest
behalf 2. Any ascendant, a. Any member of group accredited by or
descendant, or the immediate registered with any
collateral family government agency.
relative of the b. Any ascendant,
aggrieved party descendant, or
th
within the 4 collateral relative
civil degree of of the aggrieved
consanguinity or party within the
th
affinity 4 civil degree of
3. Any concerned consanguinity or
citizen, affinity
organization,
association or
institution
Respondent
May or may not be an Public official or Public official or employee Public official or employee,
officer. employee or a or a private individual or private individual or entity.
private individual or entity engaged in the
entity. gathering, collecting or
storing of data or
information regarding the

243 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

person, family, home and

correspondence of the
aggrieved party.
Enforceability of the writ
If granted by SC or CA: Enforceable Enforceable anywhere in Enforceable anywhere in the
enforceable anywhere anywhere in the the Philippines Philippines
In the Philippines; Philippines
regardless of who
If granted by RTC: issued the same
enforceable only
within the judicial
district
Docket fees
Payment is required Petitioner is Payment is required. Petitioner is exempted from
exempted from payment
Note: Rule on indigent payment Note: Rule on indigent
petitioner applies. petitioner applies.
Service of writ
Served upon the Served upon the Served upon the Served upon the respondent
person to whom it is respondent respondent personally; or personally; or substituted
directed, and if not personally; or substituted service service.
found or has not the substituted service
prisoner in his
custody, to the other
person having or
exercising such
custody
Person who makes the return
Officer by whom the Respondent Respondent Respondent
prisoner is imprisoned
or the person in whose
custody the prisoner is
found
When to file a return
On the day specified in Within 5 working The respondent shall file a Within non- extendible period
the writ days after service of verified written return of 10 days after the service of
the writ, the together with supporting writ.
respondent shall file affidavits within 5 working
a verified written days from service of the
return together with writ, which period may be
supporting affidavits. reasonably extended by
the Court for justifiable
reasons.
Return
If granted by the SC or If issued by RTC: If issued by RTC: returnable If issued by SC, returnable
CA: returnable before returnable before before such court; before such court or CA.
the court or any such court;
member or before RTC If issued by SB or CA or any
or any judge thereof; If issued by SB or CA of their justices: returnable
or any of their before such court or to any
If granted by RTC: justices: returnable RTC of the place where the
returnable before such before such court or petitioner or respondent
court to any RTC of the resides or that which has
place where the jurisdiction over the place
In writ of habeas threat, act or where the data or
corpus in relation to omission was information is gathered,
custody of minors, the committed or any of collected or stored;
writ may be made its elements
returnable to a Family occurred; If issued by SC or any of its
Court or to any regular justices: returnable before
court within the region If issued by SC or any such court, or before SB,
where the petitioner of its justices: CA, or to any RTC of the

UNIVERSITY OF SANTO TOMAS 244

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

resides or where the returnable before place where the petitioner

minor may be found such court, or before or respondent resides or
for hearing and SB, CA, or to any RTC that which has jurisdiction
decision on the merits of the place where over the place where the
(Sec. 20, A.M. No. 03- the threat, act or data or information is
04-04-SC). omission was gathered, collected or
committed or any of stored
its elements occurred
General denial
Not prohibited. Not allowed. Not allowed. Not allowed.
Liability of the person to whom the writ is directed if he refuses to make a return
Forfeit to the Imprisonment or fine Imprisonment or fine for Indirect contempt.
aggrieved party the for committing committing contempt.
sum of P1000, and contempt.
may also be punished
for contempt.
Hearing
Date and time of Summary hearing Summary hearing shall be The hearing including the
hearing is specified in shall be conducted conducted not later than preliminary conference shall
the writ. not later than 7 days 10 working days from the not extend beyond sixty (60)
from the date of date of issuance of the days and shall be given the
issuance of the writ. writ. same priority as petitions for
the writs of habeas corpus,
amparo and habeas data.
Period of appeal
Within 48 hours from 5 working days from 5 working days from the Within fifteen (15) days from
notice of the judgment the date of notice of date of notice of the the date of notice of the
or final order appealed the adverse judgment or final order. adverse judgment or denial of
from. judgment. motion for reconsideration.

Prohibited pleadings
None 1. Motion to dismiss; 1. Motion to dismiss;
2. Motion for extension of time to file 2. Motion for extension of
opposition, affidavit, position paper and other time to file return;
pleadings; 3. Motion for
postponement;
Note: In writ of amparo, motion for extension of time 4. Motion for a bill of
to file the return is no longer a prohibited pleading, particulars;
as it may be granted by the court on highly 5. Counterclaim or cross-
meritorious cases.
claim;
6. Third-party complaint;
3. Dilatory motion for postponement;
7. Reply; and
4. Motion for a bill of particulars;
8. Motion to declare
5. Counterclaim or cross - claim;
respondent in default.
6. Third - party complaint;
7. Reply;
8. Motion to declare respondent in default;
9. Intervention;
10. Memorandum;
11. Motion for reconsideration of interlocutory
orders or interim relief orders; and
12. Petition for certiorari, mandamus or
prohibition against any interlocutory order.

RULES ON CUSTODY OF MINORS AND WRIT OF HABEAS

CORPUS IN RELATION TO CUSTODY OF MINORS Q: Who may file a petition for custody of minor?

245 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: A verified petition for the rightful custody of a minor may
be filed by any person claiming such right. The party against
whom it may be filed shall be designated as the respondent
(Sec. 2, AM No. 03-04-04-SC).
Q: Where should a petition for custody of minor be filed?
A: Family courts in the province or city where the petitioner
resides or where the minor may be found (Sec. 3, AM No.
03-04-04-SC).
Q: Do the Family Courts have concurrent jurisdiction with
the Supreme Court and the Court of Appeals in petitions
where the custody of minors is at issue?
A: Yes. The Court of Appeals and Supreme Court have
concurrent jurisdiction with Family courts in habeas corpus
cases where the custody of minors is involved. The
provisions of RA 8369 must be read in harmony with RA
7029 and BP 129 that Family courts have concurrent
jurisdiction with the Court of Appeals and the Supreme
Court in petitions for habeas corpus where the custody of
minors is at issue (Thornton v. Thornton, G.R. No. 154598,
Aug. 16, 2004).
Q: What are the contents of the verified petition?
A:
1. The personal circumstances of the petitioner and of
the respondent.
2. The name, age and present whereabouts of the minor
and his or her relationship to the petitioner and the
respondent.
3. The material operative facts constituting deprivation
of custody.
4. Such other matters which are relevant to the custody
of the minor.
5. Certificate of Non-Forum Shopping signed personally
by the petitioner (Sec. 4, AM No. 03-04-04-SC).
Q: To whom should the custody of the child be given?
A: Under Article 213 (2) of the Family Code, no child under
7 years of age shall be separated from the mother, unless
the court finds compelling reasons to order otherwise.
Q: When will the court take into consideration the choice
of the child?
A: The child, who is over 7 years of age, may choose which
parent he prefers to live with, unless the parent so chosen
is unfit to take charge of the child by reason of moral
depravity, habitual drunkenness, incapacity, or poverty
(Art. 213, Family Code).
Note: If both parents are unfit, the court may designate other
persons or an institution to take charge of the child, such as the
paternal or maternal grandparent of the child, or his oldest brother
or sister, or some reputable and discreet person.
Q: What should be considered in awarding the custody of
minor?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: The court shall consider the best interests of the minor
and shall give paramount consideration to his material and
moral welfare (Sec. 14, AM No. 03-04-04-SC).
Q: What is the Best Interest Standard?
A: It refers to the totality of the circumstances and
conditions as are most congenial to the survival, protection,
and feelings of security of the minor and most encouraging
to his physical, psychological and emotional development.
It also means the least detrimental available alternative for
safeguarding the growth and development of the minor
(Sec. 14, Ibid.).
Q: Husband H files a petition for declaration of nullity of
marriage before the RTC of Pasig City. Wife W files a
petition for habeas corpus before the RTC of Pasay City,
praying for custody over their minor child. H files a motion
to dismiss the wifes petition on the ground of the
pendency of the other case. Rule (2007 Bar Question)
A: The motion to dismiss the petition for habeas corpus
should be granted to avoid multiplicity of suits. The
question of who between the spouses should have custody
of their minor child could also be determined in the petition
for declaration of nullity of their marriage which is already
pending in the RTC of Pasig City. In other words, the
petition filed in Pasay City, praying for custody of the minor
child is unnecessary and violates only the cardinal rule of
procedure against multiplicity of suits. Hence, the latter suit
may be abated by a motion to dismiss on the ground of litis
pendentia (Yu v. Yu, G.R. No. 164915, March 10, 2006).
Q: In a petition for habeas corpus which he filed before
the Court of Appeals, Joey sought custody of his minor son
from his former live-in partner, Loreta. Joey alleged that
the child's mother was abroad most of the time and thus,
he should be given joint custody over their son. The CA
however denied the petition, and on the basis of Art. 213,
par (2) of the FC, awarded custody of the child in favor of
the mother. Was the CA correct in denying Joeys petition
for habeas corpus for the custody of his minor son?
A: Yes. Under Art. 176 of the FC, parental authority over an
illegitimate child is vested solely in the mother, and this is
true notwithstanding that the child has been recognized by
the father as his offspring. At most, such recognition by the
father would be a ground for ordering the latter to give
support to, but not custody of, the child (David v. Court of
Appeals, 250 SCRA 82). Custody over the minor in this case
was therefore awarded correctly to the mother, and this is
all the more so in view of Art. 213 of the FC which lays
down the Maternal Preference Rule. There is also no
showing that Joey was able to show proof of any
compelling reason to wrest from the mother parental
authority over their minor child.
Q: In a petition for habeas corpus that was filed by Loran
against his estranged wife, as well as against his parents-
in-law whom he alleged were unlawfully restraining him
from having custody of his child, the trial court issued an
order directing the aforesaid persons to appear in court
246
 SPECIAL PROCEEDINGS
and produce the child in question and to show cause why
the said child should not be discharged from restraint.
Does the trial court's order run counter to Art. 213 of the
FC?
A: No. The assailed order of the trial court did not grant
custody of the minor to any of the parties but was merely a
procedural directive addressed to the petitioners for them
to produce the minor in court and explain why they are
restraining his liberty. Moreover, Art. 213 of the FC deals
with the adjudication of custody and serves as a guideline
for the proper award of-custody by the court. While the
petitioners can raise it as a counter argument in the
custody suit, it may not however be invoked by them to
prevent the father from seeing the child.
Note: Habeas corpus may be resorted to in cases where rightful
custody is withheld from a person entitled thereto. Under Art. 211
of the FC, both parents in this case have joint parental authority
over their child and consequently joint custody over him. Further,
although the couple is separated de facto, the issue of custody has
yet to be adjudicated by the court. In the absence of a judicial
grant of custody, both parents are still entitled to the custody of
their child (Salientes, et al. v. Abanilla, et al.,G.R. No. 162734, Aug.
29, 2006).
Q: What are the stages in the pre-trial?
A:
1. First stage the parties may agree on the custody of
the minor.
2. Second stage the trial court will direct the parties to
secure the services of a mediator if the parties do not
agree on the custody of the minor (Sec. 12, AM No. 03-
04-04-SC).
Note: If the second stage does not produce an amicable
settlement, the court will proceed with the pre-trial conference.
Pre-trial is mandatory (Sec. 12, Ibid.).
Q: What is the order of preference in awarding provisional
custody?
A: As far as practicable, the order of preference shall be
observed:
1. Both parents jointly;
2. Either parent, taking into account all relevant
considerations, especially the choice of the minor over
seven years of age and of sufficient discernment,
unless the parent chosen is unfit;
3. The grandparent, or if there are several grandparents,
the grandparent chosen by the minor over seven years
of age and of sufficient discernment, unless the
grandparent chosen is unfit or disqualified;
4. The eldest brother or sister over twenty-one years of
age, unless he or she is unfit or disqualified;
5. The actual custodian of the minor over twenty-one
years of age, unless the former is unfit or disqualified;
or
6. Any other person or institution the court may deem
suitable to provide proper care and guidance for the
minor (Sec. 13,Ibid.).
247
Q: May the court award temporary visitation rights in the
provisional custody order?
A: Yes, the court shall provide in its order awarding
provisional custody appropriate visitation rights to the non-
custodial parent or parents, unless the court finds said
parent or parents unfit or disqualified (Sec. 15,Ibid.).
Q: What should the court award after the hearing?
A:
1. Care, custody and control of each child as will be for
his best interest.
2. Court may order either or both parents to support or
help support the child, irrespective of who may be its
custodian. The fact that the father has recognized the
child may be a ground for ordering him to give
support, but not for giving him custody of the child.
3. Court may permit the parent who is deprived of care
and custody to visit the child or have temporary
custody thereof in an order that is just and reasonable
(Sec. 18, AM No. 03-04-04-SC).
Q: May the court award the custody of the minors based
merely on psychiatric report and agreement of the
parties?
A: No, the court should conduct thorough trial on all
matters relevant to the welfare and interests of the child
(Laxamana v. Laxamana, G.R. No. 144763, Sept. 3, 2002).
Q: Can the minor child be brought out of the country
without leave from court while the petition is pending?
A: No. The minor child subject of the petition shall not be
brought out of the country without prior order from the
court while the petition is pending.
The court, motu proprio or upon application under oath,
may issue ex parte a hold departure order, addressed to the
Bureau of Immigration and Deportation, directing it not to
allow the departure of the minor from the Philippines
without the permission of the court (Sec. 16, AM No. 03-04-
04-SC).
WRIT OF AMPARO
A.M. NO. 07-9-12-SC
Q: What is writ of amparo?
A: It is a remedy available to any person whose right to life,
liberty and security is violated or threatened with violation
by an unlawful act or omission of a public official or
employee, or of a private individual or entity. The writ
shall cover extralegal killings and enforced disappearances
or threats thereof (Sec. 1, A.M. No. 07-9-12-SC).
Note: The remedy provides rapid judicial relief as it partakes of a
summary proceeding that requires only substantial evidence to
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
make the appropriate reliefs available to the petitioner; it is not an
action to determine criminal guilt requiring proof beyond
reasonable doubt, or liability for damages requiring preponderance
of evidence, or administrative responsibility requiring substantial
evidence that will require full and exhaustive proceedings
(Deliberations of the Committee on the Revision of the Rules of
Court, Aug. 10, 2007, Aug. 24, 2007, Aug. 31, 2007 and Sept. 20,
2008).
Q: How is right to life, liberty and security defined?
A:
1. The right to life guarantees essentially the right to be
alive- upon which the enjoyment of all other rights is
preconditioned - the right to security of person is a
guarantee of the secure quality of this life, viz: The life
to which each person has a right is not a life lived in
fear that his person and property may be
unreasonably violated by a powerful ruler. Rather, it is
a life lived with the assurance that the government he
established and consented to, will protect the security
of his person and property.
2. The right to liberty as guaranteed by the Constitution
was defined by Justice Malcolm to include the right to
exist and the right to be free from arbitrary restraint or
servitude. The term cannot be dwarfed into mere
freedom from physical restraint of the person of the
citizen, but is deemed to embrace the right of man to
enjoy the facilities with which he has been endowed
by his Creator, subject only to such restraint as are
necessary for the common welfare.
3. The right to security includes the following:
a. Freedom from fear - is the right and
any threat to the rights to life, liberty or
security is the actionable wrong. Fear is a
state of mind, a reaction; threat is a
stimulus, a cause of action. In
the amparo context, it is more correct to say
that the right to security is actually
the freedom from threat. Viewed in this
light, the threatened with violation Clause
in the latter part of Section 1 of
theAmparo Rule is a form of violation of the
right to security mentioned in the earlier
part of the provision.
b. Guarantee of bodily and psychological
integrity or security - Physical injuries
inflicted in the context of extralegal killings
and enforced disappearances constitute
more than a search or invasion of the
body. It may constitute dismemberment,
physical disabilities, and painful physical
intrusion. As the degree of physical injury
increases, the danger to life itself
escalates. Notably, in criminal law, physical
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
injuries constitute a crime against persons
because they are an affront to the bodily
integrity or security of a person.
c. Guarantee of protection of ones rights by
the government - The right to security of
person in this third sense is a corollary of the
policy that the State guarantees full respect
for human rights under Article II, Section 11
of the 1987 Constitution. As the government
is the chief guarantor of order and security,
the Constitutional guarantee of the rights to
life, liberty and security of person is
rendered ineffective if government does not
afford protection to these rights especially
when they are under threat. Protection
includes conducting effective investigations,
organization of the government apparatus to
extend protection to victims of extralegal
killings or enforced disappearances (or
threats thereof) and/or their families, and
bringing offenders to the bar of justice.
(Reyes v. Court of Appeals, G.R. No. 182161,
December 3, 2009)
Q: What are extralegal killings?
A: These are killings committed without due process of law,
legal safeguards or judicial proceedings (Secretary of
National Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008).
Q: On December 11, 2009, Congress enacted Republic Act
No. 9851 entitled PHILIPPINE ACT ON CRIMES AGAINST
INTERNATIONAL HUMANITARIAN LAW, GENOCIDE, AND
OTHER CRIMES AGAINST HUMANITY. What is its effect on
the rule of writ of amparo?
A: The Rule on the Writ of Amparo is now a procedural law
anchored, not only on the constitutional rights to the rights
to life, liberty and security, but on a concrete statutory
definition as well of what an enforced or involuntary
disappearance is. Therefore, A.M. No. 07-9-12-SCs
reference to enforced disappearances should be construed
to mean the enforced or involuntary disappearance of
persons contemplated in Section 3(g) of RA No. 9851.
(Navia et al v. Pardico, GR 184467, June 19, 2012 citing
Rubrico v. Macapagal Arroyo).
Q: What is an enforced disappearance?
A: The arrest, detention, or abduction of persons by, or
with the authorization, support or acquiescence of, a State
or a political organization followed by a refusal to
acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons,
with the intention of removing from the protection of the
law for a prolonged period of time (Section 3(g) of RA No.
9851).
Q: What are the elements of enforced disappearance?
A: AA-RR
248
 SPECIAL PROCEEDINGS

military or police commanders on the ground that the

(a) That there be an arrest, detention, abduction or any
form of deprivation of liberty;
(b) That it be carried out by, or with the authorization,
support or acquiescence of, the State or a political
organization;
complained acts in the petition were committed with their
direct or indirect acquiescence. They may be impleaded
not actually on the basis of command responsibilitybut
rather on the ground of their responsibility, or at least
accountability (Roxas v. Macapagal Arroyo, G.R. No.
189155, September 7, 2010).

(c) That it be followed by the State or political Note: If command responsibility were to be invoked and applied to
organizations refusal to acknowledge or give information these proceedings, it should, at most, be only to determine the
on the fate or whereabouts of the person subject of author who, at the first instance, is accountable for, and has the
duty to address, the disappearance and harassments complained
the amparo petition; and,
of, so as to enable the Court to devise remedial measures that may
be appropriate under the premises to protect rights covered by the
(d) That the intention for such refusal is to remove the writ of amparo. Thus, the doctrine of command responsibility does
subject person from the protection of the law for a not determine criminal, civil or administrative liabilities but is to be
prolonged period of time. (Navia et al v. Pardico, GR applied merely to ascertain responsibility and accountability of the
184467, June 19, 2012). persons involved. (Rodriguez v. Macapagal Arroyo, G.R.
No. 191805, November 15, 2011).
Q: Is State participation an indispensable element for the
Note: The rule is the same with respect to habeas data
issuance of a writ of amparo?
Q: Is the concept of responsibility the same as
A: Yes. Proof of disappearance alone is not enough. It is
accountability under an amparo proceedings?
likewise essential to establish that such disappearance was
carried out with the direct or indirect authorization,
A: No. Responsibility refers to the extent the actors have
support or acquiescence of the government. While the writ
been established by substantial evidence to
may lie if the person sought to be held accountable or
have participated in whatever way, by action or omission,
responsible in an amparo petition is a private individual or
in an enforced disappearance while Accountability refers to
entity, still, government involvement in the disappearance
the measure of remedies that should be addressed to those
remains an indispensable element. This hallmark of State
(i) who exhibited involvement in the enforced
participation differentiates an enforced disappearance case
disappearance without bringing the level of their complicity
from an ordinary case of a missing person (Navia et al v.
to the level of responsibility defined above; or (ii) who are
Pardico, GR 184467, June 19, 2012).
imputed with knowledge relating to the enforced
disappearance and who carry the burden of disclosure; or
Q: Is an amparo proceeding criminal in nature?
(iii) those who carry, but have failed to discharge, the
burden of extraordinary diligence in the investigation of the
A: No. While the principal objective of its proceedings is the
enforced disappearance (Razon, Jr. v. Tagitis G.R. No.
initial determination of whether an enforced
182498, December 3, 2009).
disappearance, extralegal killing or threats thereof had
transpiredthe writ does not fix liability for such
Q: Can a writ of amparo be issued when the protection
disappearance, killing or threats, whether that may be
being asked for involves a property right?
criminal, civil or administrative under the applicable
substantive law (Roxas v. Macapagal Arroyo, G.R. No.
A: No. The writ of amparo was originally conceived as a
189155, September 7, 2010).
response to the extraordinary rise in the number of killings
It partakes of the nature of a prerogative writ that does not
and enforced disappearances, and to the perceived lack of
determine guilt nor pinpoint criminal culpability for the
available and effective remedies to address these
disappearance; rather, it determines responsibility, or at
extraordinary concerns. It is intended to address violations
least accountability, for the enforced disappearance for
of or threats to the rights to life, liberty or security, as an
purposes of imposing the appropriate remedies to address
extraordinary and independent remedy beyond those
the disappearance (Razon, Jr. v. Tagitis G.R. No. 182498,
available under the prevailing Rules, or as a remedy
December 3, 2009).
supplemental to these Rules. What it is not, is a writ to
protect concerns that are purely property or commercial
Q: Can the concept of command responsibility be applied
(Tapuz v. Del Rosario, G.R. No. 182484, June 17, 2008).
in proceedings for a writ of amparo?
Note: The rule is the same with respect to habeas data
A: No. The application of command responsibility
presupposes an imputation of individual liability, it is more
Q: How about in a labor dispute?
aptly invoked in a full-blown criminal or administrative case
rather than in a summary amparo proceeding (Roxas v.
A: Still, the writ will not be issued. Employment constitutes
Macapagal Arroyo, G.R. No. 189155, September 7, 2010).
a property right under the context of the due process
clause of the Constitution and does not constitute an
It must be clarified, however, that the inapplicability of the
unlawful violation of the right to life, liberty, or security.
doctrine of command responsibility in an amparo
(Meralco v Lim, G.R. No. 184769 October 5 2010).
proceeding does not, by any measure, preclude impleading

249 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: The rule is the same with respect to habeas data
Q: Is the mere inclusion of a name of a person in the
militarys order of battle sufficient reason for the issuance
of the writ of amparo?
A: No. It is true that the writ covers even threatened
violations against a persons right to life, liberty or security.
Further, threat and intimidation that vitiate the free will
although not involving invasion of bodily integrity
nevertheless constitute a violation of the right to security in
the sense of freedom from threat. It must be stressed,
however, that such threat must find rational basis on the
surrounding circumstances of the case. Mere inclusion in
the militarys order of battle which is not supported by
independent and credible evidence stands on nebulous
grounds. The liberality accorded to amparo cases does not
mean that a claimant is dispensed with the onus of proving
his
(Saez v. Macapagal Arroyo, G.R. No. 183533 September 25,
2012).
Note: The rule is the same with respect to habeas data
DIFFERENCES BETWEEN AMPARO AND SEARCH WARRANT
In the Oct. 7, 2008 decision of the Supreme Court in the
case of The Secretary of National Defense vs. Manalo, the
Court said that the production order under
the Amparo Rule pertained to a civil procedure that
cannot be identified or confused with unreasonable
searches prohibited by the Constitution. It should not be
confused with a search warrant for law enforcement under
Article III, Section 2 of the 1987 Constitution because it is
likened to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure which
provides in relevant part, viz:
Section 1. Motion for production or inspection order.
Upon motion of any party showing good cause
therefor, the court in which an action is pending may
order any party to produce and permit the inspection
and copying or photographing, by or on behalf of the
moving party, of any designated documents, papers,
books of accounts, letters, photographs, objects or
tangible things, not privileged, which constitute or
contain evidence material to any matter involved in
the action and which are in his possession, custody or
control.
A search warrant is a court order issued by a judge or
magistrate judge that authorizes the law enforcement
officers to conduct a search of a person or location for
evidence of a crime and to confiscate evidence if it is found.
This serves as a protection of the people from the
unreasonable intrusion of the government, while a writ of
amparo is broader in scope as it protects the constitutional
rights to life, liberty and security.
WHO MAY FILE
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: Who may file the petition?
A: Any aggrieved party may file the petition. It may also be
filed by any qualified person or entity in the following
order:
1. Any member of the immediate family, namely: the
spouse, children and parents of the aggrieved party;
2. Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those
mentioned in the preceding paragraph; or
3. Any concerned citizen, organization, association or
institution, if there is no known member of the
immediate family or relative of the aggrieved party
(Sec. 2, A.M. No. 07-9-12-SC).
Note: The filing of a petition by the aggrieved party suspends the
right of all other authorized parties to file similar petitions.
Likewise, the filing of the petition by an authorized party on behalf
case. of the aggrieved party suspends the right of all others, observing
the order established herein. (Sec. 2, Ibid.).
Q: Can the writ of amparo be filed on Saturdays and
Sundays?
A: Yes. The petition may be filed on any day, including
holidays and also at any time from morning to evening,
considering that such is the protection of the mother of all
rights, the right to life
(http://sc.judiciary.gov.ph/Annotation_amparo.pdf).
Q: Does the rule allowing the filing of the petition before
the RTC require that the RTC have jurisdiction OVER THE
OFFENSE complained of?
A: No. Jurisdiction can only be conferred by Congress. The
rule merely establishes a procedure to enforce the right to
life, liberty or security of a person which requires the filing
of the petition before the RTC of the place where the
threat, act or omission was committed or any of its
elements.
The intent is to prevent the filing of the petition in some
far-flung area to harass the respondent. Moreover,
allowing the amparo petition to be filed in any Regional
Trial Court may prejudice the effective dispensation of
justice, as in most cases, the witnesses and the evidence
are located within the jurisdiction of the Regional Trial
Court where the act or omission was committed.
(http://sc.judiciary.gov.ph/Annotation_amparo.pdf)
CONTENTS OF THE RETURN
Q: What is the content of the verified return?
A: Within five (5) days after service of the writ, the
respondent shall file a verified written return together with
supporting affidavits which shall, among other things,
contain the following:
1. The lawful defenses to show that the respondent
did not violate or threaten with violation the right to
250
 SPECIAL PROCEEDINGS
life, liberty and security of the aggrieved party,
through any act or omission;
2. The steps or actions taken by the respondent to
determine the fate or whereabouts of the aggrieved
party and the person or persons responsible for the
threat, act or omission;
3. All relevant information in the possession of the
respondent pertaining to the threat, act or omission
against the aggrieved party; and
4. If the respondent is a public official or employee,
the return shall further state the actions that have
been or will still be taken:
a. to verify the identity of the aggrieved party;
b. to recover and preserve evidence related to
the death or disappearance of the person
identified in the petition which may aid in the
prosecution of the person or persons
responsible;
c. to identify witnesses and obtain statements
from them concerning the death or
disappearance;
d. to determine the cause, manner, location and
time of death or disappearance as well as any
pattern or practice that may have brought
about the death or disappearance;
e. to identify and apprehend the person or
persons involved in the death or
disappearance; and
f. to bring the suspected offenders before a
competent court.
5. Other matters relevant to the investigation, its resolution
and the prosecution of the case (Sec. 9, A.M. No. 07-9-12-
SC as amended).
Note: The failure to file a return cannot be extended except on
highly meritorious grounds. Thus, a motion for extension of time to
file a return upon showing of a highly meritorious ground is no
longer a prohibited pleading.
EFFECTS OF FAILURE TO FILE RETURN
Q: What happens when the respondent fails to file a
return?
A: The court, justice or judge shall proceed to hear the
petition ex parte. The hearing should
not be delayed by the failure of the respondent to file a
return, otherwise the
right to life, liberty and security of a person would be easily
frustrated. (Sec. 12, Ibid.).
OMNIBUS WAIVER RULE
Q: What is the Omnibus Waiver Rule?
A: The omnibus waiver rules states that all defenses not
raised in the return (answer) are deemed waived (Sec. 10,
Ibid.).
Note: This is to be distinguished from the Omnibus Motion Rule
which states that defenses not raised in a Motion to Dismiss are
deemed waived.
251
A motion to dismiss is a prohibited pleading in an application for a
writ of amparo
Q: Is a motion to dismiss on the ground of lack of
jurisdiction over the subject matter a prohibited motion in
a petition for a writ of amparo?
A: Yes. The filing of a motion to dismiss even on the ground
of lack of jurisdiction over the subject matter and the
parties is proscribed to avoid undue delay. The grounds of a
motion to dismiss should be included in the return and
resolved by the court, using its reasonable discretion as to
the time and merit of the motion. (Sec. 11, Ibid.).
PROCEDURE FOR HEARING
Q: What is the nature of the hearing on the petition?
A: It shall be summary. However, the court, justice or judge
may call for a preliminary conference to simplify the issues
and determine the possibility of obtaining stipulations and
admissions from the parties (Sec. 13, Ibid.).
Q: How long should the hearing last?
A: The hearing shall be from day to day until completed and
given the same priority as petitions for habeas corpus (Sec.
13, Ibid.).
INSTITUTION OF SEPARATE ACTION
Q: May a separate action be filed after filing a petition for
a writ of amparo?
A: Yes. It does not preclude the filing of separate criminal,
civil or administrative actions (Sec. 21, Ibid.). However, if
the evidence so warrants, the amparo court may refer the
case to the Department of Justice for criminal prosecution
(http://sc.judiciary.gov.ph/Annotation_amparo.pdf).
Q: Once a criminal action is filed, can there be an
independent action for a writ of amparo?
A: No. An independent action for amparo is improper once
criminal proceedings have been commenced. Validity of the
arrest or the proceedings conducted thereafter is a defense
that may be set up by respondents during trial and not
before a petition for writ of amparo. The reliefs afforded by
the writs may, however, be made available to the
aggrieved party by motion in the criminal proceedings
(Castillo v. Cruz G.R. No. 182165 November 25, 2009).
Note: The rule is the same with respect to habeas data
Q: Fr. Reyes was arrested and charged with rebellion.
Consequently, the DOJ Secretary issued Hold Departure
Order (HDO) No. 45 ordering the Commissioner of
Immigration to include in the hold departure list the name
of Fr. Reyes. The RTC dismissed the charge but the HDO
No. 45 still subsisted. Thus, Fr. Reyes filed a petition for
writ of amparo to the SC claiming that the continued
restraint on his right to travel is illegal. Should the petition
be granted?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: No. The right to travel refers to the right to move from
one place to another. As stated in Marcos v.
Sandiganbayan, G.R. Nos. 115132-34, Aug. 9, 1995, a
persons right to travel is subject to the usual constraints
imposed by the very necessity of safeguarding the system
of justice. The restriction on Fr. Reyes right to travel as a
consequence of the pendency of the criminal case filed
against him was not unlawful. Fr. Reyes has failed to
establish that his right to travel was impaired in the manner
and to the extent that it amounted to a serious violation of
his right to life, liberty and security.
Under Sec. 22, A.M. No. 07-9-12-SC (effect of filing of
criminal action), Fr. Reyes should have filed with the RTC-
Makati, where the information for rebellion was filed, a
motion to lift HDO No. 45 (Rev. Fr. Robert Reyes v. CA, G.R.
No. 182161, Dec. 3, 2009).
CONSOLIDATION
Q: When can a petition for a writ of amparo be
consolidated with a criminal action?
A: (a) When a criminal action is filed subsequent to the
filing of the petition of the writ and (b) when a separate
civil action and a criminal action was filed subsequent to
the petition for the writ of amparo.
INTERIM RELIEFS AVAILABLE TO PETITIONER AND
RESPONDENT
Q: What are the interim reliefs available?
A:
Petitioner Respondent
1. Temporary 1. Inspection order;
protection 2. Production order
order; (Sec. 15)
2. Inspection
order;
3. Production
order;
4. Witness
protection order
(Sec. 14)
Note: Temporary protection and witness protection orders may be
issued motu proprio by the court unlike inspection and protection
orders which may be issued only upon verified petition by the
party.
Q: What allegations must a party make in order to be
entitled to an inspection order?
A: A basic requirement before an amparo court may grant
an inspection order is that the place to be inspected is
reasonably determinable from the allegations of the party
seeking the order. While the Amparo Rule does not require
that the place to be inspected be identified with clarity and
precision, it is, nevertheless, a minimum for the issuance of
an inspection order that the supporting allegations of a
party be sufficient in itself, so as to make a prima facie case
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
(Roxas v. Macapagal Arroyo, G.R. No. 189155, September 7,
2010).
Q: Can an interim relief still be granted independently
even when a writ of amparo has already been issued?
A: No. Provisional reliefs are intended to assist the
court before it arrives at a judicious determination of
the amparo petition. The privilege of the writ of amparo,
once granted, necessarily entails the protection of the
aggrieved party (Yano v. Sanchez, G.R. No. 186640,
February 11, 2010).
QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF
WRIT OF AMPARO
Q: What is the quantum of evidence required in a petition
for a writ of amparo?
A: The parties shall establish their claims by substantial
evidence. (Sec. 17, A.M. No. 07-9-12-SC).
Q: Is the standard of diligence required between a private
individual or entity and a public official or employee
different?
A: Yes. Public officials and employees must prove that
extraordinary diligence was exercised in the performance of
duty while only ordinary diligence is required for private
individual or entity. Public officials or employees are
charged with a higher standard of conduct because it is
their legal duty to obey the Constitution, especially its
provisions protecting the right to life, liberty and security.
(Sec. 17, A.M. No. 07-9-12-SC).
Note: Same provision provides that respondent public official or
employee cannot invoke the presumption that official duty has
been regularly
performed to evade responsibility or liability.
Q: When is a petition for writ of amparo sufficient in form
and substance?
A: The pleader must state the ultimate facts constituting
the cause of action, omitting the evidentiary details.
However, in an amparo petition, this requirement must be
read in light of the nature and purpose of the proceeding,
which addresses a situation of uncertainty; the petitioner
may not be able to describe with certainty how the victim
exactly disappeared, or who actually acted to kidnap,
abduct or arrest him or her, or where the victim is detained,
because these information may purposely be hidden or
covered up by those who caused the disappearance. In this
type of situation, to require the level of specificity, detail
and precision is to make the Rule a token gesture of judicial
concern for violations of the constitutional rights to life,
liberty and security.
The test in reading the petition should be to determine
whether it contains the details available to the petitioner
under the circumstances, while presenting a cause of action
showing a violation of the victims rights to life, liberty and
252
 SPECIAL PROCEEDINGS
security through State or party action (Razon, Jr. v. Tagitis
G.R. No. 182498, December 3, 2009).
Q: What is the doctrine of totality of evidence in amparo
cases?
A: The doctrine of totality of evidence in amparo cases
means that the court must consider all the pieces of
evidence adduced in their totality, not in isolation with
each other, and to consider any evidence otherwise
inadmissible under our usual rules to be admissible if it is
consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of
reason i.e., to the relevance of the evidence to the issue
at hand and its consistency with all other pieces of
adduced evidence. Thus, even hearsay evidence can be
admitted if it satisfies this basic minimum test (Razon, Jr. v.
Tagitis G.R. No. 182498, December 3, 2009).
Q: What should the courts do if the petitioner fails to
appear due to valid cause such as threats on his life?
A: The court shall not dismiss the petition, but shall archive
it, if upon its determination it cannot proceed for a valid
cause. A periodic review of the archived cases shall be
made by the amparo court that shall, motu proprio or upon
motion by any party, order their revival when ready for
further proceedings. (Sec. 20).
Note: The petition shall be dismissed with prejudice upon failure to
prosecute the case after the lapse of 2 years from notice to the
petitioner of the order archiving the case. (Sec. 20.).
Q: How may an appeal be taken against an adverse
decision in a petition for a writ of amparo?
A: Any party may appeal from the final judgment or order
to the SC under Rule 45. The appeal may raise not only
questions of law but also questions of fact or both because
its subject is extralegal killings or enforced disappearances,
which might necessitate a review of errors of fact (Sec. 19,
Ibid.).
WRIT OF HABEAS DATA
A. M. NO. 08-1-16-SC
Q: What is writ of habeas data?
A: It is a remedy available to any person whose right to
privacy in life, liberty or security is violated or threatened
by an unlawful act or omission of a public official or
employee, or of a private individual or entity engaged in the
gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of
the aggrieved party. (Sec. 1, A.M. No. 08-1-16-SC).
Note: The writ of habeas data was conceptualized as a judicial
remedy enforcing the right to privacy, most especially the right to
informational privacy of individuals. The writ operates to protect a
persons right to control information regarding himself, particularly
in the instances where such information is being collected through
unlawful means in order to achieve unlawful ends ((Roxas v.
Macapagal Arroyo, G.R. No. 189155, September 7, 2010).
Q: What is the nature of the hearing on the petition?
253
A: It shall be summary. However, the court, justice or judge
may call for a preliminary conference to simplify the issues
and determine the possibility of obtaining stipulations and
admissions from the parties. (Sec. 15, Ibid.).
SCOPE OF THE WRIT
Q: What is the scope of the writ?
A: The writ of habeas data provides a judicial remedy to
protect a persons right to control information regarding
oneself, particularly in instances where such information is
being collected through unlawful means in order to achieve
unlawful ends.
As an independent and summary remedy to protect the
right to privacy especially the right to informational
privacy the proceedings for the issuance of the writ
of habeas data does not entail any finding of criminal, civil
or administrative culpability. If the allegations in the
petition are proven through substantial evidence, then the
Court may (a) grant access to the database or information;
(b) enjoin the act complained of; or (c) in case the database
or information contains erroneous data or information,
order its deletion, destruction or rectification (Rodriguez v.
Macapagal Arroyo, G.R. No. 191805, November 15, 2011).
Q: Who may file the petition?
A: Any aggrieved party may file a petition for the writ of
habeas data. However, in cases of extralegal killings and
enforced disappearances, the petition may be filed by:
1. Any member of the immediate family of the aggrieved
party, namely: the spouse, children and parents; or
2. In default thereof, any ascendant, descendant or
collateral relative of the aggrieved party within the
fourth civil degree of consanguinity or affinity (Sec. 2,
A.M. No. 08-1-16-SC).
CONTENTS OF THE PETITION
Q: What are the contents of the verified petition?
A:
1. The personal circumstances of the petitioner and the
respondent
2. The manner the right to privacy is violated or
threatened and how it affects the right to life, liberty
or security of the aggrieved party
3. The actions and recourses taken by the petitioner to
secure the data or information
4. The location of the files, registers or databases, the
government office, and the person in charge, in
possession or in control of the data or information, if
known
5. The reliefs prayed for, which may include the
updating, rectification, suppression or destruction of
the database or information or files kept by the
respondent. In case of threats, the relief may include a
prayer for an order enjoining the act complained of.
6. Such other relevant reliefs as are just and equitable,
(Sec. 6, Ibid.)
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: A petition for habeas data was filed alleging as follows:
"1. [ ] Similarly, a petition for a WRIT OF HABEAS DATA
is prayed for so that the PNP may release the report on
the burning of the homes of the petitioners and the acts of
violence employed against them by the private
respondents, furnishing the Court and the petitioners with
copy of the same;
[ ]
66. Petitioners apply for a WRIT OF HABEAS DATA
commanding the Philippine National Police [PNP] to
produce the police report pertaining to the burning of the
houses of the petitioners in the land in dispute and
likewise the investigation report if an investigation was
conducted by the PNP."
Does this constitute sufficient compliance for the petition
for habeas data?
A: No. A petition for habeas data is fatally deficient when
there are no concrete allegations of unjustified or unlawful
violation of the right to privacy related to the right to life,
liberty or security, has not demonstrated any need for
information under the control of police authorities, and
has not shown the necessity or justification for the
issuance of the writ, based on the insufficiency of previous
efforts made to secure information. In such case, the prayer
for the issuance of a writ of habeas data is nothing more
than the "fishing expedition" that this Court - in the course
of drafting the Rule on habeas data - had in mind in
defining what the purpose of a writ of habeas data is not.
(Tapuz et al v. Judge del Rosario et al G.R. No. 182484, June
17, 2008).
CONTENTS OF RETURN
Q: What should the respondent allege in his verified
return?
A: The respondent, within 5 working days from the service
of the writ, unless reasonably extended by the Court, shall
allege:
1. The lawful defenses such as national security, state
secrets, privileged communication, confidentiality of
the source of information of media and others;
2. In case of respondent in charge, in possession or in
control of the data or information subject of the
petition:
a. A disclosure of the data or information about
the petitioner, the nature of such data or
information, and the purpose for its
collection;
b. The steps or actions taken by the respondent
to ensure the security and confidentiality of
the data or information; and
c. The currency and accuracy of the data or
information held; and
3. Other allegations relevant to the resolution of the
proceeding (Sec. 10, Ibid.).
Note: A general denial of the allegations in the petition shall not be
allowed (Sec. 10, Ibid.).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
INSTANCES WHEN PETITION MAY BE HEARD IN
CHAMBERS
Q: What are the instances when a petition for a writ of
habeas data may be heard in chambers?
A: It may be conducted where the respondent invokes the
defense that the release of the data or information in
question shall compromise national security or State
secrets, or when the data or information cannot be
divulged to the public due to its nature or privileged
character (Sec. 12, Ibid.).
Q: What reliefs may be granted by the court if the
allegations in the petition are proven by substantial
evidence?
A: The court shall enjoin the act complained of, or order the
deletion, destruction, or rectification of the erroneous data
or information and grant other relevant reliefs as may be
just and equitable (Sec. 16, Ibid.).
Q: How may an adverse decision in habeas data
proceedings be appealed?
A: Any party may appeal from the final judgment or order
to the SC under Rule 45. The appeal may raise questions of
fact or law or both (Sec. 19, Ibid.).
CONSOLIDATION
Q: What happens when a criminal and/or civil action is
filed after the filing of the petition for writ of habeas
data?
A:
1. When a subsequent criminal action is filed, the
Petition for the writ of Habeas Data shall be
consolidated with the criminal action.
2. When a criminal action and a separate civil action are
filed subsequent to a petition for a writ of habeas
data, the petition shall be consolidated with the
criminal action.
Note: After consolidation, the procedure under the Rule shall
continue to govern the disposition of the reliefs in the petition
(Sec. 21, Ibid.).
EFFECT OF FILING OF A CRIMINAL ACTION
Q: What is the effect of an institution of a criminal action?
A: No separate petition for the writ shall be filed. The reliefs
under the writ shall be available to an aggrieved party by
motion in the criminal case (Sec. 22, Ibid.).
INSTITUTION OF SEPARATE ACTION
Q: Does the filing of a petition for the writ of habeas data
prohibit the filing of separate criminal, civil or
administrative actions?
254
 SPECIAL PROCEEDINGS

A: The filing of a petition for the writ of habeas data shall under his or her own hand, information and grant
not preclude the filing of separate criminal, civil or and may deputize any other relevant reliefs as
administrative actions (Sec. 20, Ibid.). officer or person to serve may be just and
it. The writ shall also set
equitable; otherwise,
the date and time for
QUANTUM OF PROOF IN APPLICATION FOR ISSUANCE OF summary hearing of the the privilege of the writ
WRIT OF HABEAS DATA petition which shall not be shall be denied.
later than ten (10) work
Q: What is the quantum of evidence required in a petition days from the date of its
for a writ of habeas data? issuance (10) days from the
time the petition is
A: If the allegations in the petition are proven by substantial submitted for decision
evidence, the court shall enjoin the act complained of, or
order the deletion, destruction, or rectification of the
erroneous data or information and grant other relevant
reliefs as may be just and equitable; otherwise, the
privilege of the writ shall be denied (Sec. 16, Ibid.).

Q: What is the difference between the issuance of the writ

and the privilege of the writ?

A:
Issuance of the writ
Issued upon the filing of
the petition if on its face
it ought to issue
Note: Sec. 7. Upon the
filing of the petition, the
court, justice or judge shall
immediately order the
issuance of the writ if on
its face it ought to issue.
The clerk of court shall
issue the writ under the
seal of the court and cause
it to be served within three
(3) days from its issuance;
or, in case of urgent
necessity, the justice or
judge may issue the writ
Privilege of the writ
Issued after hearing, in
the form of a judgment
Note: The court shall
render judgment within
ten (10) days from the
time the petition is
submitted for decision.
If the allegations in the
petition are proven by
substantial evidence,
the court shall enjoin
the act complained of,
or order the deletion,
destruction, or
rectification of the
erroneous data or
CHANGE OF NAME

DIFFERENCES UNDER RULE 103, R.A.9048 as amended by R.A. 10172 AND RULE 108

Rule 103 R.A. 9048 as amended by R.A. 10172 Rule 108

Change of first name or surname.
Judicial; hearing is necessary.
Verified petition.
RTC of the province where the
petitioner resides at least 3
months prior to the filing of the
Scope
Clerical or typographical errors; change of first Correction of or substantial errors of
name or nickname, the day and month in the date entries in the Civil Registry/
of birth or sex of a person where it is patently clear cancellation of entries.
that there was a clerical or typographical error or
mistake in the entry, which can be corrected or
changed by the concerned city or municipal civil
registrar or consul general.
Nature
Administrative; hearing is not necessary. Summary Judicial; hearing is necessary.
as it merely involves clerical errors. Adversarial since it involves
substantial errors.
Initiated by
Sworn affidavit. Verified petition.
Where to file
Local Civil Registry office where the record is RTC where the corresponding civil
kept/Consul General. registry is located.

255 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

petition.
Where to appeal , in case of adverse decision
CA under Rule 41 Civil Registrar General under (Rule 14, IRR of RA CA under Rule 41
9048)
Who may file
Filed by the person desiring to Petition is filed by the person of legal age who Any person interested in the act,
change his name. must have a direct and personal interest in the event, decree or order concerning the
correction: civil status of persons.
1. Owner of the record;
2. Owners spouse, children, parents, brothers,
sisters, grandparents, guardian; or
3. Anyone authorized by law or owner of the
record.
Who must be notified
Solicitor General/ Interested Interested parties/Solicitor General need not be Civil registrar impleaded as
parties. notified. respondent; Solicitor General/
Interested parties.
Publication
Order for hearing shall be Order for hearing in case of change of first Order for hearing shall be published
published once a week for 3 name/nickname, the day and month in the date of once a week for 3 consecutive weeks.
consecutive weeks. birth or sex of a person where it is patently clear
that there was a clerical or typographical error or
mistake shall be published once a week for 2
consecutive weeks.

GROUNDS FOR CHANGE OF NAME
Q: What are the grounds justifying a change of name?
A:
1. When the name is ridiculous, dishonorable or
extremely difficult to write or pronounce;
2. When the change will avoid confusion;
3. When one has been continuously used and been
known since childhood by a Filipino name, and was
unaware of alien parentage;
4. When the surname causes embarrassment and there
is no showing that the desired change of name was for
a fraudulent purpose or that the change of name will
prejudice public interest
5. When the change is a legal consequence of
legitimation or adoption
6. When the change is based on a sincere desire to adopt
a Filipino name to erase signs of former alienage, all in
good faith and without prejudice to anybody (People v.
Hernandez 253 SCRA 509)
4. All names and aliases of petitioner (Republic v. Marcos,
G.R. L-31065, Feb. 15, 1990).
Q: What is the nature of petition for change of name?
A: It is a special proceeding to establish the status of a
person involving his relation with others, that is, his legal
position in, or with regard to, the rest of the community. It
is a proceeding in rem and, as such, strict compliance with
jurisdictional requirements, particularly in publication, is
essential in order to vest the court with jurisdiction
therefore (Republic v. CA, G.R. No. 97906, May 21, 1992).
Q: What are the Jurisdictional requirements in a petition
for change of name?
A:
1. Publication for 3 successive weeks in some newspaper
of general circulation in the province
2. Both title or caption of the petition and its body shall
recite:
a. The name or names or aliases of the applicant;
b. The cause for which the change of name is sought
c. The new name asked for.

Q: What are the requisites for a valid publication?

Q: What should the petition for change of name contain? A:

1. The petition and the copy of the order indicating the
A: date and place for the hearing must be published;
1. That the petitioner has been a bona fide resident of 2. The publication must be at least once a week for three
the province where the petition is filed for at least 3 successive weeks; and,
years prior to the date of such filing; 3. The publication must be in some newspaper of general
2. The cause for which the change of the petitioner's circulation published in the province, as the court shall
name is sought; deem best.
3. The name asked for (Sec. 2, Rule 103); and 4. Another validating ingredient relates to the caveat
against the petition being heard within 30 days prior to
UNIVERSITY OF SANTO TOMAS 256
2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS
an election or within four (4) months after the last
publication of the notice of the hearing.
Q: Pernito, also known in the community as Peregrine,
filed a petition for change of name to Pedro. The name
Peregrine appeared in the body of the petition but not in
the caption. When the petition was published, the caption
and the body of the petition were merely lifted verbatim,
so that as published, the petitions caption still did not
contain Peregrine as the petitioners alias. The
government lawyer filed a motion to dismiss on the
ground that, notwithstanding publication for the requisite
number of times, the court did not acquire jurisdiction
over the petition because petitioners alias-Peregrine did
not appear on the published caption. The court denied the
motion to dismiss with the ruling that there was
substantial compliance with the law and that the omission
of the alias was clearly set forth in the petition itself. Was
the court correct in denying the motion to dismiss?
Explain. (1992 Bar Question)
A: No. The failure of the petitioner to include his alias,
Peregrine, in the caption is a jurisdictional defect and its
inclusion in the body of the petition does not cure said
defect. The reason for the rule is that the ordinary reader
only glances fleetingly at the caption in a special proceeding
and only if the caption strike him does he proceed to read
the body of the petition; hence, he will probably not notice
the other names or aliases of the petitioner (Gil Go v.
Republic, G.R. No. L-31760, May 25, 1977).
Note: Failure to comply with all the requirements and to spell
correctly the names in the order and in the petition will preclude
the trial court from acquiring jurisdiction. (Jayme Tan v. Republic,
G.R. No. 16384, Apr. 26, 1962)
Q: Why should the Solicitor General be notified?
A: The State has an interest in the names borne by
individuals for purposes of identification, and that changing
ones name is a privilege and not a right. Accordingly, a
person can be authorized to change his name appearing in
either his certificate of birth or civil registry upon showing
not only of reasonable cause, or any compelling reason
which may justify such change, but also that he will be
prejudiced by the use of his true and official name (Republic
of the Philippines v. Bolante, G.R. No. 160597, July 20,
2006). The interest of the State which is represented by the
Solicitor General is paramount over personal right to
choose a name. The State must identify its subjects (Ong
Peng Oan v. Republic, G.R. No. L-80035, Nov. 29, 1975).
Q: A petition for change of name was filed on October 18,
2000 and set for hearing on February 20, 2001. The notice
of hearing was published in the November 23, and 30,
2000 and December 7, 2000 issues of the Norluzonian
Courier. However, since Sec. 3 of Rule 103 requires that
the date set for the hearing shall not be within thirty (30)
days prior to an election nor within four (4) months after
the last publication of the notice, and realizing that the
date of the hearing falls within the 4 month prohibitive
period, the hearing was moved to September 25, 2001.The
Solicitor General was also fully apprised of the changes of
the date. Did the court acquire jurisdiction even if there
was no republication of the new date of hearing?
A: Yes. It cannot be over-emphasized that in a petition for
change of name, any interested person may appear at the
hearing and oppose the petition. Likewise, the Solicitor
General or his deputy shall appear on behalf of the
Government. The government, as an agency of the people,
represents the public and, therefore, the Solicitor General,
who appears on behalf of the government, effectively
represents the public. As it were, the Solicitor General was
fully apprised of the new dates of the initial hearing.
Accordingly, there was no actual need for a republication of
the initial notice of the hearing. The peculiar circumstances
obtaining in this case and the requirements of fair dealing
demand that we accord validity to the
proceedings a quo. (Republic of the Philippines v. Bolante,
G.R. No. 160597, July 20, 2006).
Q: What is the effect of change of name?
A: A change of name does not define or effect a change of
ones existing family relations or in the rights and duties
flowing there from. It does not alter ones legal capacity,
civil status or citizenship; what is altered is only the name.
(Republic v. CA, G.R. No. 97906, May 21, 1992)
ABSENTEES (RULE 107)
PURPOSE OF THE RULE
Q: What is the purpose of this Rule?
A: It is to appoint an administrator over the properties of
the absentee. This is proper only where the absentee has
properties to be administered.
Note: If the absentee left no properties, such petition is not
necessary. (Reyes v. Alejandro, G.R. No. L-46187,Jan. 16, 1986)
WHO MAY FILE
Q: Who may file a petition for declaration of absence and
appointment of administrator/trustee?
A:
1. Spouse present;
2. Heirs instituted in the will;
3. Relatives who will succeed by intestacy; or
4. Those who have over the property of the absentee
some right subordinated to the condition of his death
(Sec. 2, Rule 107).
Note: Petition to declare the husband an absentee and the petition
to place the management of the conjugal properties in the hands
of the wife could be combined and adjudicated in the same
proceedings.
WHEN TO FILE
Q: When should a petition for declaration of absence and
appointment of administrator/trustee be filed?
257 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

A: years Representative (unless the

1. After 2 years: absentee left an agent to
a. From his disappearance and without any news administer his property)
about the absentee; or 5 years in case he Petition for Declaration of
b. From the last news about the absentee. left an agent Absence and Appointment of
2. After 5 years If he left an administrator of his Administrator or Trustee may
property (Sec. 2, Ibid.). be filed
Beyond 7 years Considered dead for all intents
Q: Where should the petition for the appointment of an (or 4 years under and purposes except for
absentee be filed? extraordinary purposes of succession (if
circumstances) disappeared under
A: It should be filed in the RTC where the absentee resided extraordinary circumstance,
before his disappearance (Sec. 1, Ibid.). considered dead for all
purposes even succession)

Note: Extraordinary circumstance

Q: What should the court do upon filing? is as follows: 1) A person on board
a vessel lost during a sea voyage,
A: or an aircraft which is missing,
who has not been heard of for
1. Issue an order setting forth the date and place of the
four years since the loss of the
hearing; vessel or aircraft; (2) A member of
2. Direct that notice must be sent to known interested the armed forces who has taken
persons at least 10 days before the hearing; and part in armed hostilities, and has
3. Order the publication once a week for 3 consecutive been missing for four years; (3) A
weeks in a newspaper of general circulation in the person who has been in danger of
province or city where the absentee resides (Sec. 4, death under other circumstances
Ibid.). and whose existence has not been
known for four years;

Q: Who may be appointed as administrator of the
property of the absentee?
A: The spouse present shall be preferred in the
appointment of a representative or administrator of
property of the absentee provided they are not legally
separated. If the absentee left no spouse or if the spouse
present is incompetent, any competent person may be
appointed by the court (Sec. 7, Ibid.).
Q: When does the declaration of absence take effect?
A: It takes effect six (6) months after publication of the
judgment on declaration of absence in a newspaper of
general circulation and in the Official Gazette. The order
must also be recorded in the Civil Registry of the place
where the absentee last resided. (par. 2, Sec. 6, Ibid.).
Q: What are the grounds for termination of the
administration?
A:
1. Absentee appears personally or through an agent;
2. Absentees death is proved and heirs appear; or
3. Third person appears showing that he acquired title
over the property of the absentee (Sec. 8, Ibid.).
Q: What are the periods of absence and their
corresponding consequence?
A:
Period of Consequence
Absence
After lapse of 2 Petition for Appointment of
Considered dead for the purpose
of opening his succession after an
absence of 10 years. If he
disappeared after the age of 75,
the absence of 5 years is
sufficient.
Marriage: if the spouse was
absent for 4 years (or 2 years
under extraordinary
circumstances) and the spouse
present has a well - founded belief
that the absent spouse is already
dead, the spouse present must
institute a summary proceeding
for the declaration of presumptive
death for the purposes of
contracting a subsequent
marriage [Arts. 41-43, FC; Sec. 3
(w)(4), Rule 131].
Q: May the wife who is appointed as an administrator
alienate or encumber the husbands property?
A: Yes, provided she secures first a judicial authority. (Art.
388, NCC).
CANCELLATION OR CORRECTION OF ENTRIES IN THE CIVIL
REGISTRY
Q: Who may file a petition for cancellation or correction of
entries?
A: 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

UNIVERSITY OF SANTO TOMAS 258

2013 GOLDEN NOTES
 SPECIAL PROCEEDINGS

the cancellation or correction of any entry relating thereto, the birth certificate was registered in the civil registry. (Lee
with the RTC of the province where the corresponding civil v. CA, supra.).
registry is located (Sec. 1, Rule 108).
Q: Celine files a petition for cancellation of the birth
Q: What is the nature of proceedings in Rule 108? certificate of her daughter Jeanie on the ground of
falsified material entries therein made by Celines
A: Rule 108, when all the procedural requirements husband as the informant. The RTC sets the case for
thereunder are followed, is the appropriate adversary hearing and directs the publication of the order once a
proceeding to effect substantial correction and changes in week for 3 consecutive weeks in a newspaper of general
the entries of civil register (Lee v. CA, G.R. No. L-118387, circulation. Summons was served on the Civil Registrar but
Oct. 11, 2001). there was no appearance during the hearing. The RTC
granted the petition. Jeanie filed a petition for annulment
Note: An adversarial in nature - one which has opposing parties; of judgment before the CA, saying that she was not
one of which the party seeking relief has given legal warning to the notified of the petition and hence, the decision was issued
other party, and afforded the latter an opportunity to contest it in violation of due process. Celine opposed saying that the
(Republic v. Valencia, G.R. No. L-32181, Mar. 5, 1986).
publication of the court order was sufficient compliance
with due process. Rule. (2007 Bar Question)
Q: What are the requisites of adversarial proceedings?
A: It should not be granted. The publication of an order of
A:
hearing under Section 4 of Rule 108 cured the failure to
1. Proper petition is filed where the Civil Registrar and all
implead an indispensable party. A petition for correction is
parties interested are impleaded;
an action in rem, an action against a thing and not against a
2. The order of hearing must be published once a week
person. The decision on the petition binds not only the
for three consecutive weeks;
parties thereto but the whole world. An in rem proceeding
3. Notice must be given to the Civil Registrar and all
is validated essentially through publication. Publication is
parties affected thereby;
notice to the whole world that the proceeding has for its
4. The civil registrar and any person interested, may
object to bar indefinitely all who might be minded to make
within 15 days from notice or from the last date of
an objection of any sort against the right sought to be
publication, files his opposition thereto; and
established. It is the publication of such notice that brings
5. Full blown trial. (Republic v. Valencia, supra.).
in the whole as a party in the case and vests the court with
jurisdiction to hear and decide it (Republic v. Kho, G.R. No.
ENTRIES SUBJECT TO CANCELLATION OR CORRECTION
170340, June 29, 2007; Alba v. CA, G.R. No. 164041, July 29,
UNDER RULE 108
2005; Barco v. CA, G.R. No. 120587, Jan. 20, 2004).
Q: What are the entries subject to cancellation or
Q: Helen is the daughter of Eliza, a Filipina, and Tony, a
correction under Rule 108?
Chinese, who is married to another woman living in China.
Her birth certificate indicates that Helen is the legitimate
A:
child of Tony and Eliza and that she is a Chinese citizen.
1. Births;
Helen wants her birth certificate corrected by changing
2. Marriages;
her filiation from "legitimate" to "illegitimate" and her
3. Deaths;
citizenship from Chinese" to "Filipino" because her
4. Legal separations;
parents were not married. What petition should Helen file
5. Judgments of annulments of marriage;
and what procedural requirements must be observed?
6. Judgments declaring marriages void from the
Explain. (2005 Bar Question)
beginning;
7. Legitimations;
A: A petition has to be filed in a proceeding under Rule 108
8. Adoptions;
of the Rules of Court. A petition to change the record of
9. Acknowledgments of natural children;
birth by changing the filiation from legitimate to
10. Naturalization;
illegitimate and petitioners citizenship from Chinese to
11. Election, loss or recovery of citizenship;
Filipino does not involve a simple summary correction
12. Civil interdiction;
which could otherwise be done under the authority of R.A.
13. Judicial determination of filiation; and
9048. Procedural requirements include: (a) filing a verified
14. Change of name (Sec. 2, Rule 108).
petition; (b) naming as parties all persons who have or
claim any interest which would be affected; (c) issuance of
Q: Within what period may a petition for correction or
an order fixing the time and place of hearing; (d) giving
cancellation of entries be filed?
reasonable notice to the parties named in the petition; and
(e) publication of the order once a week for 3 consecutive
A: The law did not fix a period within which the petition for
weeks in a newspaper of general circulation.
correction under Rule 108 in relation to Art. 412 of Civil
Code may be filed. Accordingly, such petition may be filed
within 5 years from the time the petitioner discovered the REPUBLIC ACT NO. 9048 as amended by R.A. 10172
ADMINISTRATIVE CORRECTION OF CLERICAL OR
error or mistake in the civil registry, and not from the date
TYPOGRAPHICAL ERROR IN AN ENTRY AND/OR

259 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
CHANGE OF FIRST NAME OR NICKNAME IN THE CIVIL
REGISTER
Q: What changes can be made under R.A. 9048?
A: Where it is patently clear that there was a clerical or
typographical error or mistake in the entry, which can be
corrected or changed by the concerned city or municipal
civil registrar or consul general
1. Correction of clerical or typographical errors
2. Change of first name or nickname,
3. Change of the day and month in the date of birth,
4. Change of sex of a person (Sec. 1 of R.A. 9048 as
amended by R.A. 10172)
Note: R.A. 10172 which was approved on August 15, 2012 now
allows the correction of the day and month of the date of birth and
sex of a person unlike in R.A. 9048. Moreover, the grounds
enumerated are subject to the qualification that the error or
mistake to be corrected must be patently clear and it must be
within the competence of the local civil registrar or consul general.
Note: The obvious effect is to remove from the ambit of Rule 108
the correction or changing of such errors in the entries of civil
register. Hence, what is left for the scope of operation of Rule 108
are substantial changes and corrections in entries of the civil
register (Lee v. CA, G.R. No. 118387, Oct. 11, 2001). The intent of
the law is to exclude from the coverage of Rules 103 and 108
change of first name, until and unless an administrative petition for
change of name is first filed and denied (Silverio v. Republic)
Q: What is clerical or typographical error?
A: It refers to a mistake committed in the performance of
clerical work in writing, copying, transcribing or typing an
entry in the civil register that is harmless and innocuous,
such as misspelled name or misspelled place of birth,
mistake in the entry of day and month in the date of birth
or the sex of the person or the like, which is visible to the
eyes or obvious to the understanding, and can be corrected
or changed only by reference to other existing record or
records: Provided, however, That no correction must
involve the change of nationality, age (correction on year
of birth), or status of the petitioner. [Sec. 2(3), R.A. 9048 as
amended by R.A. 10172; NSO Administrative Order No. 1
Series of 2012].
Note: Correction is allowed only on the day and month of birth but
not on the year of birth because this will already alter the age of
the petitioner.
Q: What are the grounds for a change of first name under
R.A. 9048?
A:
1. The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult
to write or pronounce;
2. The new first name or nickname has been habitually
and continuously used by the petitioner and he has
been publicly known by that first name or nickname in
the community; or
3. The change will avoid confusion (Sec. 4).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: Where should the petition for correction of entry or
change of name under R.A. 9048 be filed?
A:
1. Resident of the Philippines - Local Civil Registry Office
(city or municipal civil registrar) of the city or
municipality where the record being sought to be
corrected or changed is kept.
2. Migrant Petition (Petitioner has migrated to another
place within the Philippines and it is not practical for
such party, in terms of transportation expenses, time
and effort to appear before the local civil registrar of
the place of birth) Local Civil Registry Office (city or
municipal civil registrar) of the place where the
petitioner is residing or domiciled.
3. Migrant Petition (Petitioner is one whose birth record
was reported abroad and presently residing in the
Philippines) - Local Civil Registry Office (city or
municipal civil registrar) of the place of residence.
Note: Place of domicile is not included under this portion
because it is understood that his domicile is abroad, his birth
record having been reported therein, and under which
Philippine laws do not apply.
4. Citizens of the Philippines who are presently residing
or domiciled in foreign countries - Nearest Philippine
consulate (Consul General) (Sec. 3; NSO Administrative
Order No. 1 Series of 2012)
Q: Julio, born male, underwent a sex reassignment
surgeryin Bangkok, Thailand. After the successful medical
operation, Julio filed a petition to have his name in his
birth certificate changed from Julio to Julia, and his
sex from male to female with the RTC Manila. After
hearing, the RTC Manila granted Julios petition. The
Office of the Solicitor General filed a petition for certiorari
in the CA alleging that there is no law allowing the change
of entries in the birth certificate by reason of sex
alteration. The CA granted the petition for certiorari and
reversed the RTC Manilas order. Is the CA correct?
A: Yes. First, RTC Manila does not have the jurisdiction to
allow the petition filed by Julio. R.A. 9048 now governs the
change of first name. It vests the power and authority to
entertain petitions for change of first name to the city or
municipal civil registrar or consul general concerned.
Jurisdiction over applications for change of first name is
now primarily lodged with the aforementioned
administrative officers. The intent and effect of the law is to
exclude the change of first name from the coverage of
Rules 103 and 108, until and unless an administrative
petition for change of name is first filed and subsequently
denied.
Second, the ground relied upon by Julio on his petition for
change of name is not among those enumerated by R.A.
9048. Julios basis in praying for the change of his first name
was his sex reassignment. However, a change of name does
not alter ones legal capacity or civil status. R.A. 9048 does
260
 SPECIAL PROCEEDINGS

not sanction a change of first name on the ground of sex

reassignment. (Silverio v. Republic, G.R. No. 174689, Oct.
22, 2007).

Note: The State has an interest in the names borne by individuals

and entitled for purposes of identification. A change of name is a
privilege, not a right. Petitions for change of name are controlled
by statutes.

Q: Carla was born with two genitals, one for male and one
for female. Only after maturity did his male dominant
features becomes manifest. Carla filed a petition for
change of name to Carlo. The available evidence
presented in court including the fact that Carla thinks of
himself as a male and as to the statement made by the
doctor that Carlas body produces high levels of male
hormones, which is preponderant biological support for
considering him as male. Should the petition be granted?

A: Yes. Compassionate calls for recognition of the various

degrees of intersex as variations should not be subject to
outright denial. The court must give respect to (1) the
diversity of nature; and (2) how an individual deals with
what nature has handed out. His congenital condition and
his mature decision to be a male must be taken into
account. Life is already difficult for the ordinary person. A
change of name is not a matter of right but of judicial
discretion, to be exercised in the light of the reasons and
the consequences that will follow. (Republic v. Cagandahan,
G.R. No. 166676, Sept. 12, 2008).

Procedure for Petition for administrative corrections under R.A. 9048 as amended by R.A. 10172 and
Administrative Order No. 1 Series of 2012 in relation to Administrative Order No. 1 Series of 2001

Sworn affidavit with supporting documents (3 copies city or municipal

registrar or consul general; Office of the Civil Registrar General; petitioner)

Correction of a clerical or
typographical error
The particular erroneous entry
or entries sought to be corrected
shall be stated, supported by the
following documents:
(1) A certified true machine copy
of the certificate or of the page
of the registry book containing
the entry or entries sought to be
corrected or changed;
(2) At least two (2) public or
private documents showing the
correct entry or entries upon
Change of first name or nickname
The particular erroneous entry or
entries sought to be changed shall
be stated, supported by the
following documents:
(1) A certified true machine copy of
the certificate or of the page of the
registry book containing the entry
or entries sought to be corrected or
changed;
(2) At least two (2) public or private
documents showing the 261 correct
entry or entries upon which the
correction or change shall be based;
Correction of erroneous entry
concerning the day and moth
in the date of birth
The particular erroneous entry
or entries sought to be
corrected shall be stated,
supported by the following
documents:
(1) Earliest school record or
earliest school documents
(2) Medical records,
U N I V E R S I T Y O F S A N T O T O M (3)
(3) Baptismal F Acertificate
C U L T Y O F and
C I V I L L Aother
other documents issued by
Correction of erroneous ent
concerning the sex of a pers
The particular erroneous en
or entries sought to
corrected shall be stat
supported by the follow
documents:
(1) Earliest school record
earliest school documents
(2) Medical records,
A S Baptismal certificate a
W documents issued
religious authorities
 REMEDIAL LAW

Publication of the petition for at least once a week for two (2) consecutive weeks in a newspaper of general
circulation proven by an affidavit of publication from the publisher and a copy of the newspaper clipping

Posting for ten (10) consecutive days in a conspicuous place

Note: In the case of migrant petitioner, the petition shall be posted first at the office of the Petition Receiving Civil Registrar for ten (10)
consecutive days before sending it to the Record Keeping Civil Registrar. Upon receipt, the Record Keeping Civil Registrar shall post again the
petition in his office for another ten (10) consecutive days. When the petition is for a change of first name, the migrant petitioner shall
publish the petition in a newspaper of general and national circulation.
In the case where a person's civil registry record or records were registered in the Philippines or in any of the Philippine Consulates, but the
person presently resides or is domiciled in a foreign country, posting and/or publication, as the case may be, shall be done in the place where
the petition is filed and in the place where the record sought to be corrected is kept.

Registrar or Consul General acts on the petition and shall render

decision not later than five (5) working days after the completion of
the posting and/or publication requirement

Grants Denies

Transmits the decision Appeal to the Civil Registrar General

and the records to the within ten (10) working days from
Civil Registrar General receipt of the decision

Civil Registrar General impugns the

decision by way of an objection If not impugned,
within ten (10) working days from on decision becomes final
theUfollowing 262
S I T Y O F S A N T O T O M A S and executory
N I V E R grounds
2013 GOLDEN NOTES
(1) The error is not clerical or
typographical;
Notify the local civil
 SPECIAL PROCEEDINGS

Motion for File appropriate petition with the court

Reconsideration 1. On questions of fact, of law, or mixed questions of facts and law:
with the Civil Petition for review with the Court of Appeals under Rule 43
Registrar General 2. Only questions of law: Petition for review on certiorari with the
Supreme Court under Rule 45
3. Grave abuse of discretion: Petition for certiorari with the Court of
Appeals under Rule 65

APPEALS IN SPECIAL PROCEEDING (RULE 109)
JUDGMENTS AND ORDERS FROM WHICH APPEAL MAY BE
TAKEN
Q: What are the orders or judgments from which appeal
may be taken?
A: An interested person may appeal when such order or
judgment:
1. Allows or disallows a will;
2. Determines who are the lawful heirs of a deceased
person, or the distributive share of the estate to which
such person is entitled;
3. Allows or disallows, in whole or in part, any claim
against the estate of a deceased person, or any claim
presented on behalf of the estate in offset to a claim
against it;
4. Settles the account of an executor, administrator,
trustee or guardian;
5. Constitutes, in the proceedings relating to the
settlement of the estate of a deceased person, or the
administration of a trustee or guardian, a final
determination in the lower court of the rights of the
party appealing, except that no appeal shall be
allowed from the appointment of a special
administrator;
6. Is the final order or judgment rendered in the case,
and affects the substantial rights of the person
appealing, unless it be an order granting or denying a
motion for new trial or for reconsideration (Sec. 1,
Rule 109).
Note: A stranger having neither material nor direct interest in a
testate or intestate estate has no right to appeal from any order
issued therein. (Panis v. Yangco, G.R. No. L-29460, Dec. 22, 1928).
Q: Who are allowed to appeal?
A:

263 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
1. A surety of an executor or administrator, made a party
to an accounting made by such executor or
administrator, from an order approving or
disapproving such accounting.
2. An heir, legatee or devisee who has been served with
notice as to a money claim against the estate admitted
by the executor or administrator, from an order of the
court approving such claim;
3. A creditor who is allowed by the court to bring an
action for recovery of property; and
4. A special administrator, from an order disallowing a
will (Herrera, Vol. III-A, pp. 578-580, 2005).
Q. What are the orders that are not appealable?
A: The following are the orders that are not appealable:
1. Order directing administrator to take action to recover
amount due to the estate;
2. Order made in administration proceedings relating to
inclusion or exclusion of items of property in the
inventory of executor or administrator;
3. Order appointing special administrator (Herrera, Vol.
III-A, pg. 585, 2005 ed.).
WHEN TO APPEAL
Q: When should the appeal in special proceedings be
filed?
A: GR: The period of appeal shall be thirty (30) days, a
record on appeal being required (Sec. 2(a), Rule 41, Rules of
Court).
.
XPN: In habeas corpus cases, the appeal therein must be
filed within 48 hours from the service of judgment. In writ
of amparo and habeas data cases, the period of appeal is 5
working days from the date of notice of the adverse
judgment. In writ of kalikasan, the period of appeal is
within 15 days from the notice of adverse judgment or
denial of motion for reconsideration.
4. Rule 45 (Appeal by certiorari to the SC) By filing of
verified petition for review on certiorari and payment
of fees which shall raise questions of law only but in
cases of amparo and habeas data cases, questions of
fact may also be entertained
5. Rule 65 (Petition for certiorari) By filing of verified
petition for certiorari on the ground that the court
acted without or in excess of jurisdiction or with grave
abuse of discretion.
RULE ON ADVANCE DISTRIBUTION
Q: What is the rule on advance distribution?
A: A part of the estate as may not be affected by the
controversy or appeal may be distributed among the heirs
or legatees, upon compliance with the conditions set forth
in Rule 90 (Sec. 2, Rule 109).
Q: What are the conditions set forth under Rule 90?
A: Notwithstanding a pending controversy or appeal in
probate proceedings to settle the estate of a decedent, the
court may, in its discretion and upon terms as it may deem
just and proper, permit that such part of the estate as may
not be affected by the controversy or appeal be distributed
among heirs or legatees, provided that estate obligations
be either:
a) Paid or provided for, or,
b) Secured by a bond conditioned for the payment
of said obligations

Note: Appeals in special proceedings are termed "multiple

appeals."

MODES OF APPEAL

Q: What are the modes of appeal, how perfected and their

grounds?

A:
1. Rule 40 (Appeal from MTC to RTC) By filing a record
on appeal and payment of appeal fees on questions of
law or fact or both (settlement of estate);
2. Rule 41 (Appeal from the RTC to CA in exercise of its
original jurisdiction) By ordinary appeal by filing a
record on appeal and payment of appeal fees on
questions of law or fact or both (settlement of estate,
habeas corpus, guardianship, trustees, absentees,
change of name under Rule 103,
correction/cancellation of entries under Rule 108);
3. Rule 42 (Petition for review from the RTC to the CA in
exercise of its appellate jurisdiction) By filing a record
on appeal and payment of appeal fees on questions of
law or fact or both; (settlement of estate)

UNIVERSITY OF SANTO TOMAS 264

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
GENERAL MATTERS

Q: What is criminal procedure?

A: It is the method prescribed by law for the apprehension

and prosecution of persons accused of any criminal offense,
and for their punishment, in case of conviction (Herrera,
Remedial Law, Vol. IV, p. 1, 2007 ed.; Pamara, Revised Rules
of Criminal Procedure, Annotated, 2010 ed.).

Q: Distinguish criminal law from criminal procedure.

A:
Criminal Law Criminal Procedure
Substantive Remedial
It declares what acts are It provides how the act
punishable is to be punished
It defines crimes, treats It provides for the
of their nature and method by which a
provides for their person accused of a
punishment crime is arrested, tried
or punished.

Q: What is criminal jurisdiction?

A: It is the authority to hear and try a particular offense and

impose the punishment for it (People v. Mariano, 71 SCRA
605).

Q: What are the elements of criminal jurisdiction?

A:
1. Penalty attached The jurisdiction of a Court in criminal
cases is determined by the penalty imposable, and not by
the penalty ultimately imposed (Guevarra v. Almodovar,
169 SCRA 476)
2. Nature of the offense charged
3. Territorial jurisdiction over place of commission of the
crime.

Note: The absence of any of these elements may be challenged by

an accused at any stage of the proceedings in the court below or
on appeal. Filing to comply with anyone of them, the resulting
judgment is void (Uy v. Court of Appeals, 276 SCRA 374).

DISTINGUISH JURISDICTION OVER SUBJECT MATTER FROM

JURISDICTION OVER THE PERSON OF THE ACCUSED

Jurisdiction Over the Jurisdiction Over the

Subject Matter Person of the Accused
Derived from the law. It May be acquired by
can never be acquired consent of the accused
solely by consent of the or by waiver of
accused. objections.
Objection that the court If he fails to make his
has no jurisdiction over objection on time, he
the subject matter may will be deemed to have
be made at any stage of waived it.
the proceeding, and the
right to make such
objection is never
CRIMINAL PROCEDURE waived.
Jurisdiction over the Jurisdiction over the

265 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

subject matter is person of the accused amendment, in which case the court where the
determined upon the is acquired by action is pending is ousted of jurisdiction and the
allegations made in the voluntary appearance pending action will have to be transferred to the
complaint, irrespective or surrender of the court having jurisdiction by virtue of the
of whether the plaintiff accused or by his amendatory law (Binay v. Sandiganbayan GR No.
is entitled or not, to arrest. 120011, Oct. 1, 1999).
recover upon the claim
asserted therein, a JURISDICTION OF CRIMINAL COURTS
matter resolved only
after and as a result of Q: How is jurisdiction determined?
the trial.
A: It is determined by the allegations in the complaint or
REQUISITES FOR EXERCISE OF CRIMINAL JURISDICTION information not by the results of proof or by the trial
courts appreciation of the evidence presented (Buaya v.
Q: What are the requisites for the valid exercise of Polo, G.R. No. 75097, Jan. 26, 1989).
criminal jurisdiction?
Q: If fine is the only penalty, how is jurisdiction
A: determined?
1. Jurisdiction over the subject matter This is the power
to hear and determine cases of general class to which A: In cases where the only penalty provided by law is a fine,
the proceeding in question belongs. The offense, by the amount thereof shall determine the jurisdiction of the
virtue of the imposable penalty or its nature, is one court:
which the court is by law authorized to take 1. The RTC has jurisdiction where the fine is more than
cognizance of. P4,000 including offenses committed by public officers
2. Jurisdiction over the territory The offense must have and employees in relation to their office, where the
been committed or any of its essential ingredients amount of the fine does not exceed P6,000 (SC Court
took place within the territorial jurisdiction of the Circular No. 09-94) except in cases of criminal
court. It cannot be waived and where the place of the negligence involving damage to property which falls
commission was not specifically charged, the place under the exclusive original jurisdiction of the MTC.
may be shown by evidence. 2. The MTC has jurisdiction where the fine is 4,000 pesos
3. Jurisdiction over the person of the accused The or less. Accessory penalties and civil liabilities are no
person charged with the offense must have been longer determinative of criminal jurisdiction.
brought to its presence for trial, forcibly by warrant of
arrest or upon his voluntary submission to the court. Q: In complex crimes, how is the jurisdiction of a court
determined? (2003 Bar Question)
Note: G.R. Questions of jurisdiction may be raised at any stage of
the proceedings. A: It is lodged with the trial court having jurisdiction to
impose the maximum and most serious penalty imposable
XPN: The party raising the question is guilty of estoppels or laches of an offense forming part of the complex crime. It must be
(Tijam v. Sibonghanoy, 23 SCRA 29)
prosecuted integrally and must not be divided into
component offenses which may be made subject of
Q: What determines jurisdiction of the court in criminal
multiple information brought in different courts (Cuyos v.
cases?
Garcia, G.R. No. L-46934, Apr. 15, 1988).
A:
Q: Which court has jurisdiction over continuing crimes?
1. The geographical limits of its territory;
2. Determined by the allegations in the complaint or
A: Continuing offenses are consummated in one place, yet
information not by the results of proof or by the trial
by the nature of the offense, the violation of the law is
courts appreciation of the evidence presented;
deemed continuing (e.g. estafa and libel). As such, the
3. Determined by the nature of the offense and/ or
courts of the territories where the essential ingredients of
penalty attached thereto and not what may be meted
the crime took place have concurrent jurisdiction. But the
out after trial; and
court which first acquires jurisdiction excludes the other
4. Determined by the law in force at the time of the
courts.
institution of the criminal action and not at the time of
its commission. ONCE VESTED IT CANNOT BE
Q: Which court has jurisdiction over crimes punishable by
WITHDRAWN BY:
destierro?
a. Subsequent valid amendment of the information
(People v. Chipeco, G.R. No. 1968, March 31,
A: Where the imposable penalty is destierro, the case falls
1964); or
within the exclusive jurisdiction of the Municipal Trial
b. Subsequent statutory amendment of the rules of
Court, considering that in the hierarchy of penalties under
jurisdiction unless the amendatory law expressly
Art. 71 of the RPC, destierro follows arresto mayor which
provides otherwise or is construed that it is
involves imprisonment (People v. Eduarte, G.R. No. 88232,
intended to operate to actions pending before its
Feb. 26, 1990).

UNIVERSITY OF SANTO TOMAS 266

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE

Q: Photokina Marketing Corporation filed a complaint for CRIMINAL ACTIONS, HOW INSTITUTED
libel against Justice Alfredo Benipayo, then chairman of
the COMELEC. Information against Justice Benipayo was Q: What is criminal action?
filed before the RTC despite the challenge on the
jurisdiction of the Office of the City Prosecutor over his A: It is one by which the State prosecutes a person for an
person being a public official. Benipayo contends that it is act or omission punishable by law.
the Sandiganbayan who has jurisdiction. Do the
Sandiganbayan and RTC having concurrent jurisdiction Q: How is criminal action instituted?
over libel or written defamation cases?
A: Criminal actions are instituted by:
A: No, the grant to the Sandiganbayan of jurisdiction over 1. Filing the complaint with the proper officer for the
offenses committed in relation to office, did not divest the purpose of conducting the requisite preliminary
RTC of its exclusive and original jurisdiction to try written investigation for offenses where a preliminary
defamation cases regardless of whether the offense is investigation is required;
committed in relation to office (People v. Benipayo, G.R. 2. For all other offenses, by filing the complaint or
Nos. 154473 and 155573, Apr. 24, 2009). information directly with the Municipal Trial Courts
and Municipal Circuit Trial Courts, or the complaint
WHEN INJUNCTION MAY BE ISSUED TO RESTRAIN with the office of the prosecutor (Sec. 1, Rule 110);
CRIMINAL PROSECUTION
Note: For Metro Manila and other chartered cities, the complaint
Q: Will injunction lie to restrain the commencement of a shall be filed with the prosecutor regardless of the imposable
criminal action? Explain. (1999 Bar Question) penalty (Sec 1b, Rule 110), while cases falling within the jurisdiction
of the RTC are always commenced by information filed by the
prosecutor.
A: GR: Injunction cannot lie to restrain the commencement
of a criminal action because public interest requires that
Q: Can the complaint or information be directly filed in the
criminal acts be immediately investigated and prosecuted
Regional Trial Court or Metropolitan Trial Court or other
for the protection of society.
chartered cities?
XPNs:
A: There is NO DIRECT FILING of an information or
1. To afford adequate protection to the
complaint with the RTC because its jurisdiction covers
constitutional rights of the accused;
offenses which require preliminary investigation.
2. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
There is likewise NO DIRECT FILING with the Metropolitan
actions;
Trial Court because in Manila, including other chartered
3. When there is a prejudicial question which is
cities, as a rule, the complaint shall be filed with the office
subjudice;
of the prosecutor, unless otherwise provided by their
4. When the acts of the officer are without or in
charters. In case of conflict between a city charter and a
excess of authority;
provision of the Rules of Court, the former, being
5. Where the prosecution is under an invalid law,
substantive law, prevails.
ordinance or regulation;
6. When double jeopardy is clearly apparent;
Q: What is the effect of institution of the criminal action?
7. Where the court has no jurisdiction over the
offense;
A: GR: It interrupts the running of the period of prescription
8. Where it is a case of persecution rather than
of the offense charged (Sec. 1, Rule 110).
prosecution;
9. Where the charges are manifestly false and
XPN: Prescriptive periods of violations of special laws
motivated by lust for vengeance;
and municipal ordinances governed by Act No. 3326 (An
10. When there is clearly no prima facie case against
Act to Establish Periods of Prescription for Violations
the accused and a motion to quash on that
Penalized by Special Laws and Municipal Ordinances
ground has been denied; and
and to Provide When Prescription shall Begin to Run)
11. Preliminary injunction has been issued by the SC
shall only be interrupted by the filing of a complaint or
to prevent the threatened unlawful arrest of
information in court. The filing of a complaint with the
petitioners (Domondon v. Sandiganbayan, G.R.
prosecutor or the proper officer for purposes of
No 129904, Mar. 16, 2002).
conducting a preliminary investigation will not interrupt
the prescriptive period (Zaldivia v. Reyes, Jr., G.R. No.
102342, July 3, 1992).

Q: In offenses punishable by imprisonment not exceeding

6 years, may the offended party go directly to court to file
a criminal action?
PROSECUTION OF OFFENSES
RULE 110

267 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: GR: No. Before a complaint is filed in court, there should
have been a confrontation between the parties before the
Lupon chairman. The Lupon secretary must certify that no
conciliation or settlement was reached, attested to by the
Lupon chairman. The complaint may also be filed if the
settlement is repudiated by the parties.
XPNs:
1. Where the accused is under detention;
2. Where a person has otherwise been deprived of
personal liberty calling for habeas corpus
proceedings;
3. Where actions are coupled with provisional
remedies; and
4. Where the action may be barred by the statute of
limitations.
Q: What is the rule regarding the prescriptive periods of
cases falling under the authority of the Lupon?
A: The prescriptive period shall be suspended from the time
of the filing of complaint with the Punong Barangay which
suspension shall not exceed 60 days. The prescriptive
period shall resume upon receipt of the certificate of
repudiation or certificate to file action (Sec. 410(c), LGC).
WHO MAY FILE THEM, CRIMES THAT CANNOT BE
PROSECUTED DE OFFICIO
Q: What is the concept of an offense or crime that cannot
be prosecuted de officio?
A: These are crimes or offenses which cannot be
prosecuted except on complaint filed by the offended party
or if the offended party is a minor, by the parents,
grandparents or the guardian.
Note: These are also known as private crimes.
Q: Are all criminal actions initiated by complaint or
information filed by the prosecutor?
A: GR: Yes.
XPN: Private crimes which may only be prosecuted by a
complaint filed by the private offended party, i.e.:
1. Adultery and concubinage;
2. Seduction, abduction and acts of lasciviousness;
and
3. Criminal actions for defamation imputing the
abovementioned offenses (Sec. 5, Rule 110).
Q: Who can legally file a complaint for adultery or
concubinage?
A: Only the offended spouse may file a complaint for
adultery or concubinage (Sec. 5, Rule 110).
Note: The offended spouse cannot institute a criminal action for
adultery without including the guilty parties if both are alive; or if
the offended party has consented to the offense or pardoned the
offenders (Sec. 5, Rule 110). If the complainant has already been
divorced, he can no longer file the complaint (Pilapil v. Somera,
G.R. No. 80116, June 30, 1989). This is considered as lack of status.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: Who may file a complaint for seduction, abduction or
acts of lasciviousness?
A:
1. The offended party;
2. Offended partys parents;
3. Offended partys grandparents; or
4. Offended partys guardian (Sec. 5, Rule 110).
Note: Such crimes cannot be prosecuted if the offender has
been expressly pardoned by any of the abovementioned
parties (Sec. 5, Rule 110).
Q: Are there instances where the State may initiate the
action for seduction, abduction or acts of lasciviousness in
behalf of the offended party?
A: Yes, when the offended party:
1. Dies or becomes incapacitated before a complaint
is filed; or
2. Has no known parents, grandparents or guardian
(Sec. 5, Rule 110).
Note: This is pursuant to the doctrine of parens patriae.
Q: Who may file a complaint on cases of unlawful acts in
RA 7610 (Special Protection of Children against Child
Abuse, Exploitation and Discrimination Act)?
A: The complaint may be filed by the following:
1. Offended party;
2. Parents or guardians;
3. Ascendant or collateral relative within the third degree
of consanguinity;
4. Officer, social worker or representative of a licensed
child-caring institution;
5. Officer or social worker of the Department of Social
Welfare and Development;
6. Barangay chairman; or
7. At least three (3) concerned, responsible citizens
where the violation occurred (Sec. 27, RA 7160)
Q: May a minor file a complaint for seduction, abduction,
or acts of lasciviousness?
A: GR: Yes, the offended party, even if a minor, has the
right to initiate the prosecution of such offenses
independently of his parents, grandparents or guardian.
XPN: If the minor is:
1. Incompetent; or
2. Incapable of doing so (Sec. 5, Rule 110).
Note: If the minor fails to file a complaint, his parents,
grandparents or guardian may file the same. The right granted to
the latter shall be excusive and successive in the order herein
provided (Sec. 5, Rule 110).
Q: Fey, a minor orphan was subjected to acts of
lasciviousness performed by her uncle Polo. She informed
her grandparents but was told not to file charges. Fey now
268
 CRIMINAL PROCEDURE
asks you as counsel how she could make her uncle liable.
What would your advice be? Explain.
Suppose the crime committed against Fey by her uncle is
rape, witnessed by your mutual friend Isay. But this time,
Fey was prevailed upon by her grandparents not to file
charges. Isay asks you if she can initiate the complaint
against Polo. Would your answer be the same? Explain.
(2000 Bar Question)
A: I would advise the minor to file the complaint herself
independently of her grandparents, because she is not
incompetent or incapable to doing so upon grounds other
than her minority (Sec. 5, Rule 110).
Since rape is now classified as a crime against persons
under the Anti-Rape Law of 1997 or R.A. 8353, I would
advise Isay to initiate the complaint against Polo.
Q: In cases of seduction, abduction or acts of
lasciviousness may a minor extend pardon?
A: Yes, but the pardon to be effective as to prevent
prosecution of the accused must be given by both parents
and the offended party (U.S. v. Luna, 1 Phil. 360; People v.
Arguelles, G.R. 612).
Q: Distinguish pardon from consent.
A:
Pardon Consent
Refers to past acts Refers to future acts
In order to absolve the
In order to absolve the
accused from liability, it
accused from liability, it
is sufficient even if
must be extended to
granted only to the
both offenders
offending spouse
Q: Who can give pardon?
A:
A. Concubinage and adultery only the offended
spouse, not otherwise incapacitated.
B. Seduction, abduction and acts of lasciviousness:
1. The offended minor, if with sufficient
discretion, can validly pardon the accused by
herself if she has no parents or where the
accused is her own father and her mother is
dead;
2. The parents, grandparents or guardian of the
offended minor, in that order, extend a valid
pardon in said crimes without the conformity
of the offended party, even if the latter is a
minor; or
3. If the offended woman is of age and not
otherwise incapacitated, only she can extend a
valid pardon.
Note: The pardon refers to pardon before filing of the criminal
complaint in court. Pardon effected after the filing of the complaint
in court does not prohibit the continuance of the prosecution of
the offense.
269
Q: Does the subsequent marriage of the accused and
offended party extinguish the criminal liability?
A: GR: The subsequent marriage between the party and the
accused, even after the filing of the complaint, extinguishes
the criminal liability of the latter, together with that of the
co-principals, accomplices and accessories.
XPNs:
1. Where the marriage was invalid or contracted in
bad faith in order to escape criminal liability;
2. In private libel or the libelous imputation of the
commission of the crimes of concubinage,
adultery, seduction, abduction, rape or acts of
lasciviousness and in slander by deed; and
3. In multiple rape, in so far as the other accused in
the other acts of rape committed by them are
concerned.
Q: What is the effect of desistance made by the offended
party in private crimes?
A: It does not bar the People from prosecuting the criminal
action, but it operates as a waiver of the right to pursue
civil indemnity.
Note: GR: Since it is the State who is the real offended
party in a criminal case, it is the prosecutor or the
Ombudsman as the case may be, or the Solicitor General in
cases before the CA or SC, who has the personality and
authority prosecute and file a petition in behalf of the
State.
XPN: An offended party in a criminal case has
sufficient personality to file a special civil action for
certiorari, even without the imprimatur of the State. In
so doing, the complainant should not bring the action
in the name of the People of the Philippines. The
action may be prosecuted in the name of the said
complainant (Perez v. Hagonoy Rural Bank, Inc., G.R.
No. 126210, Mar. 9, 2000).
Q: What is the effect of death by the offended party to the
criminal action?
A: Death of the complainant:
1. Will not be sufficient justification for the dismissal of
the information, if prior to the filing of a case in court,
a complaint was already filed by the offended party
with the prosecutor (People v. Ilarde, G.R. No. L-57288,
Apr. 30, 1984); or
2. During the pendency of the case, will not extinguish
the criminal liability of the accused whether total or
partial (Donio-Teves v. Vamenta, G.R. No. L-38308,
Dec. 26, 1984).
CONTROL OF PROSECUTION
Q: Who prosecutes criminal actions?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: GR: The public prosecutor shall prosecute, direct and
control all criminal actions commenced by a complaint or Note: Once a complaint or information is filed in Court any
information. disposition of the case as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although
the fiscal retains the direction and control of the prosecution of
XPN: The private prosecutor (private counsel) may
criminal cases even while the case is already in Court he cannot
prosecute the case in the event and provided that: impose his opinion on the trial court. The determination of the
1. The public prosecutor has heavy work schedule; case is within its exclusive jurisdiction and competence. A motion
or to dismiss the case filed by the fiscal should be addressed to the
2. There is lack of public prosecutors; Court who has the option to grant or deny the same. It does not
3. The private prosecutor must be authorized in matter if this is done before or after the arraignment of the
writing by the Chief Prosecution Office or accused or that the motion was filed after a reinvestigation or
Regional State Prosecution; and upon instructions of the Secretary of Justice who reviewed the
records of the investigation (Crespo v. Mogul, GR L-53373 June 30,
4. Such will be subject to the courts approval (Sec.5,
1987).
Rule 110.)
Q: Who shall review the decisions of the prosecutor?
Note: The institution of a criminal action depends upon the sound
discretion of the prosecutor. But once the case is already filed in
court, the same can no longer be withdrawn or dismissed without A:
the tribunals approval (Herrera, Remedial Law, Vol. IV, p. 79, 2007 1. The Secretary of Justice who exercises supervision and
ed.). control over his actions and who may sustain, modify
or set aside his resolution on the matter. The
Q: How long will the authority of the private prosecutor Resolution of the Secretary of Justice may be appealed
last? to the Office of the President only in offenses
punishable by death or reclusion perpetua (Balindong
A: The authority of the private prosecutor shall continue v. CA, 447 SCRA 208)
until the end of the trial unless the authority is revoked or 2. In appropriate cases, by the courts when he acts with
withdrawn (Sec. 5, Rule 110). grave abuse of discretion amounting to lack of
jurisdiction (Herrera, Remedial Law, Vol. IV, p. 75, 2007
Q: What are the matters within the control and ed.).
supervision of the prosecutor?
Q: May a prosecutor be compelled by mandamus to file a
A: complaint regarding a complaint filed which he previously
1. What charge to file; dismissed for lack of merit after preliminary investigation?
2. Whom to prosecute; (1999 Bar Question)
3. Manner of prosecution; and
4. Right to withdraw information before arraignment A: No. This is because the determination of probable cause
even without notice and hearing. is within the discretion of the prosecutor. The remedy is an
appeal to the Secretary of Justice.
Q: What are the matters within the control of the Court
after the case is filed? SUFFICIENCY OF COMPLAINT OR INFORMATION

A: Q: Distinguish information from complaint.

1. Suspension of arraignment;
2. Reinvestigation; A:
3. Prosecution by the fiscal; INFORMATION COMPLAINT
4. Dismissal of the case; and Information is an Complaint is a sworn
5. Downgrading of offense or dropping of accused even accusation in writing written statement
before plea. charging a person charging a person with
with an offense, an offense, subscribed by
Q: What are the limitations of control by the Court? subscribed by the the offended party, any
prosecutor and filed peace officer, or other
A: by him with the court public officer charged
1. Prosecution is entitled to notice of hearing; (Sec. 4, Rule 110). with the enforcement of
2. Prosecutions stand to maintain prosecution the law violated (Sec. 3).
should be respected by the court
3. The court must make its own independent
assessment of evidence in granting or dismissing Note: The complaint contemplated under Sec. 3 is different from
motion to dismiss. Otherwise, the judgment is the complaint filed with the Prosecutors office. It refers to the one
void. filed in court for the commencement of the criminal prosecution
4. Court has authority to review the Secretary of i.e. private crimes.
Justices recommendation and reject it if there is
grave abuse of discretion (Villanueva v. Secretary Q: What is the form of a valid complaint or information?
of Justice, 475 SCRA 511)
A: The complaint or information shall be:

UNIVERSITY OF SANTO TOMAS 270

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
1. In writing;
2. In the name of the People of the Philippines; and
3. Against all persons responsible for the offense
involved (Sec. 2, Rule 110).
Q: When is a complaint or information sufficient?
A: It is sufficient if it states the:
1. Name of the accused;
2. Designation of the offense given by the statute;
3. Acts or omissions complained of as constituting the
offense;
4. Name of the offended party;
5. Approximate date of the commission of the offense;
and
6. Place where the offense was committed (Sec. 6, Rule
110).
When an offense is committed by more than one person,
all of them shall be included in the complaint or
information (Sec. 6, Id,)
Note: In case of variance between, the complaint filed by the
offended party and the information in crimes against chastity, the
complaint controls.
Q: What is the rule with regard to the name of the
accused?
A: The complaint or information must state the name and
surname of the accused or any appellation or nickname by
which he has been or is known. If the name cannot be
ascertained, he must be described under a fictitious name
with a statement that his true name is unknown (Sec. 7,
Rule 110).
Note: If the true name of the accused is thereafter disclosed or
appears in some other manner, such true name shall be inserted in
the information or complaint in record (Sec. 7, Rule 110).
Q: Is the mistake in the name of the accused equivalent to
a mistake in his identity?
A: No. A mistake in the name of the accused is not
equivalent, and does not necessarily amount to, a mistake
in the identity of the accused especially when sufficient
evidence is adduced to show that the accused is pointed to
as one of the perpetrators of the crime (People v. Amodia,
GR No. 173791).
Q: What is the rule regarding the name of the offended
party?
A: The complaint or information must state the name and
surname of the persons against whom or against whose
property the offense was committed or any appellation or
nickname by which such person has been or is known and
if there is no better way of identifying him, he must be
described under a fictitious name.
1. In crimes against property, if the name of the offended
party is unknown, the property must be described with
such particularity as to properly identify the particular
offense charged.
271
2. If the true name of the offended party is thereafter
disclosed or ascertained, the court must cause such
true name to be inserted in the complaint or
information in record.
3. If the offended party is a juridical person, it is sufficient
to state its name, or any name or designation by which
it is known or may be identified, without need of
averring that it is a juridical person (Sec. 12, Rule 110).
Q: Must the complaint or information state with
particularity the date of the commission of the offense?
A: GR: It is not required. It suffices that the allegation
approximates or be as near the actual date when the
offense was committed (Sec. 11, Rule 110).
XPN: If the date of the commission of the offense
constitutes an essential element of the offense (e.g.
infanticide, abortion, bigamy) (Sec. 11, Rule 110).
Note: The remedy against an indictment that fails to allege the
time of commission of the offense with sufficient definiteness is a
motion for bill of particulars under Sec. 10, Rule 116; the failure to
move for specification or quashal of the information on any of the
grounds provided for in the Rules deprives the accused of the right
to object to evidence which could be lawfully introduced and
admitted under an information of more or less general terms but
which sufficiently charges the accused with a definite crime.
Besides, the exact date of the commission of the crime is not an
essential element of the crime (People v. Elpedes, G.R. Nos.
137106-07, Jan. 31, 2001).
Q: What must be alleged if the crime is committed in
relation to his office?
A: Mere allegation in the information that the offense was
committed by the accused public officer in relation to his
office is not sufficient. The phrase is merely a conclusion of
law, not a factual averment that would show close
intimacy between the offense charged and the discharge of
the accuseds official duties. What is controlling is the
specific actual allegations in the information (Lacson v.
Executive Secretary, G.R. No. 128006, Jan. 20, 1999).
Note: An offense is deemed committed in relation to public office
when the office is a constituent element of the offense. The test
is whether the offense cannot exist without the office (Crisostomo
v. Sandiganbayan, G.R. No. 152398, Apr. 14, 2005).
DESIGNATION OF OFFENSE
Q: What is the rule with regard to the designation of the
offense?
A: The designation of the offense given by the statute must
be stated in the complaint or information with the
averment of acts or omissions constituting the offense and
specify the qualifying and aggravating circumstances. If
there is no designation of the offense, reference shall be
made to the section or subsection of the statute punishing
it (Sec. 8).
Q: Accused was charged with the offense of Estafa
through Falsification of Public Documents under Article
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
315 in relation to Article 171 of the Revised Penal Code in
an Information filed by the prosecutor before the RTC of
Quezon City. Accused assailed the Information claiming
that the Information is invalid because the word "fraud"
or "deceit" was not alleged in the Information. Decide the
case.
A: Any error in the Information, with regard to the
specification of the particular mode of estafa, allegedly
committed by petitioners will not result in its invalidation
because the allegations therein sufficiently informed
petitioners that they are being charged with estafa through
falsification of public document.
The Revised Rules of Criminal Procedure provides that an
information shall be deemed sufficient if it states, among
others, the designation of the offense given by the statute
and the acts of omissions complained of as constituting the
offense. However, the Court has clarified in several cases
that the designation of the offense, by making reference to
the section or subsection of the statute punishing, it is not
controlling; what actually determines the nature and
character of the crime charged are the facts alleged in the
information (Batulanon v. People, G.R. No. 139857, Sept.
15, 2006).
CAUSE OF ACCUSATION
Q: Which shall prevail in case of conflict between the
designation of the crime and the recital of the facts
constituting the offense?
A: The title of the information or designation of the offense
is not controlling. It is the actual facts recited in the
information that determines the nature of the crime
(Santos v. People, G.R. No. 77429, Jan. 29, 1990).
Q: May the accused be convicted of a crime more serious
than that named in the information?
A: GR: Yes. The accused may be convicted of a crime more
serious than that named in the title or preliminary part if
such crime is covered by the facts alleged in the
information and its commission is established by evidence
(Buhat v. CA, G.R. No. 120365, Dec. 17, 1996).
XPN: An accused could not be convicted under one act
when he is charged with a violation of another if the
change from the statute to the other:
1. Involves change in the theory of the trial;
2. Requires of the defendant a different defense; or
3. Surprises the accused in any way (U.S. v. Panlilio,
G.R. No. L-9876, Dec. 8, 1914).
Q: What is the effect if one or more elements of the
offense have not been alleged in the information?
A: The accused cannot be convicted of the offense charged,
even if the missing elements have been proved during the
trial. Even the accuseds plea of guilty to such defective
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
information will not cure the defect, nor justify his
conviction of the offense charged.
Q: What are the purposes of requiring that every element
must be alleged?
A:
1. To enable the court to pronounce the proper
judgment;
2. To furnish the accused with such a description of the
charge as to enable him to make a defense; and
3. As a protection against further prosecution for the
same cause (Herrera, Remedial Law, Vol. IV, p. 108,
2007 ed.).
Q: Must the qualifying and aggravating circumstances be
stated?
A: Yes, they must be stated in ordinary and concise
language and not necessarily in the language used in the
statute but in terms sufficient to enable a person of
common understanding to know what the offense is being
charged as well as the qualifying and aggravating
circumstances (Sec. 9, Rule 110).
Note: The qualifying and aggravating circumstances must be
specified in the information. They must not only be proven but
they must also be alleged, otherwise, they should not be
considered (Catiis v. CA, G.R. 153979, February 9, 2006).
Q: What is the rule regarding negative averments?
A: GR: Where the statute alleged to have been violated
prohibits generally acts therein defined and is intended to
apply to all persons indiscriminately, but prescribes certain
limitation or exceptions from its violation, the complaint or
information is sufficient if it alleges facts which the offender
did as constituting a violation of law, without explicitly
negating the exception, as the exception is a matter of right
which the accused has to prove.
XPN: Where the statute alleged to have been violated
applies only to specific classes of persons and special
conditions and the exemptions from its violations are
incorporated in the language defining the crime that the
ingredients of the offense cannot be accurately and
clearly set forth if the exemption is omitted, then the
indictment must show that the accused does not fall
within the exemptions (Herrera, Remedial Law, Vol. IV,
p. 130, 2007 ed.).
Q: What must be alleged if the crime is committed in
relation to his office?
A: Mere allegation in the information that the offense was
committed by the accused public officer in relation to his
office is not sufficient. The phrase is merely a conclusion of
law, not a factual averment that would show close
intimacy between the offense charged and the discharge of
the accuseds official duties. What is controlling is the
specific actual allegations in the information (Lacson v.
Executive Secretary, G.R. No. 128006, Jan. 20, 1999).
272
 CRIMINAL PROCEDURE
Q: When is an offense deemed committed in relation to Amendment Substitution
public office? May involve either Involves substantial
formal or substantial change from the
A: An offense is deemed committed in relation to public changes original charge
office when the office is a constituent element of the Amendment before the It must be with leave of
offense. The test is whether the offense cannot exist plea is entered can be court as the original
without the office (Crisostomo v. Sandiganbayan, G.R. No. effected without leave information has to be
152398, Apr. 14, 2005). The offense need not be connected of court. dismissed.
with official duties. It is enough that it is in relation to office An amendment as to Substitution of the
(Lecaroz v. Sandiganbayan, 128 SCRA 324) form will not require information entails
another preliminary another preliminary
Q: Must the complaint or information state with investigation and investigation and plea
particularity the date of the commission of the offense? retaking of plea of the to the new information.
accused.
A: GR: It is not required. It suffices that the allegation An amended Requires or
approximates or be as near the actual date when the information refers to presupposes that the
offense was committed (Sec. 11, Rule 110). the same offense new information
charged in the original involves a different
XPN: If the date of the commission of the offense information or to an offense which does not
constitutes an essential element of the offense (e.g. offense which include or is not
infanticide, abortion, bigamy) (Sec. 11, Rule 110). necessarily includes or necessarily included in
is necessarily included the original charge;
Note: The remedy against an indictment that fails to allege the
in the original charge, hence the accused
time of commission of the offense with sufficient definiteness is a
motion for bill of particulars under Sec. 10, Rule 116; the failure to hence substantial cannot claim double
move for specification or quashal of the information on any of the amendments to the jeopardy.
grounds provided for in the Rules deprives the accused of the right information after the
to object to evidence which could be lawfully introduced and plea has been taken
admitted under an information of more or less general terms but cannot be made over
which sufficiently charges the accused with a definite crime. the objection of the
Besides, the exact date of the commission of the crime is not an
accused, for if the
essential element of the crime (People v. Elpedes, G.R. Nos.
original would be
137106-07, Jan. 31, 2001).
withdrawn, the accused
DUPLICITY OF OFFENSES; EXCEPTION could invoke double
jeopardy.
Q: May the complaint or information allege more than
one offense? Q: What may be amended?

A: GR: No. A complaint or information must charge only
one offense.
XPN: When the law prescribes a single punishment for
various offenses (Sec. 13, Rule 110), e.g.:
1. Complex crimes;
2. Special complex crimes;
3. Continuous crimes or delicto continuado;
4. Crimes susceptible of being committed in various
modes; and
5. Crimes of which another offense is an ingredient.
Note: Should there be duplicity of offense in the information
unless a single punishment for various offenses is prescribed, the
accused must move for the quashal of the same before
arraignment (Sec. 3, Rule 117). Otherwise, he is deemed to have
waived the objection and may be found guilty of as many offenses
as those charged and proved during the trial (Sec. 3, Rule 120).
AMENDMENT OR SUBSTITUTION OF COMPLAINT OR
INFORMATION
Q: Distinguish amendment from substitution
A:
A: Only valid information may be amended. An Information
filed before the effectivity of the law punishing the offense
may not be amended after the law had come into effect
(Herrera, Remedial Law, Vol. IV, p. 162, 2007 ed.).
Q: What are the tests to determine the propriety of
amendment after plea?
A:
1. Whether a defense under the information as it originally
stood would be available after the amendment is made;
and
2. Whether any evidence defendant might have would be
equally applicable to the information in the one form as in
the other. An amendment to an information which does
not change the nature of the crime alleged therein does not
affect the essence of the offense or cause surprise or
deprive the accused of an opportunity to meet the new
averment had each been held to be one of form and not of
substance. (Ricarze v. CA, G.R. No. 160451, Feb. 9, 2007).
Note: After plea, by leave and at the discretion of the court,
amendments in form, but not substance may be allowed as long as
it will not prejudice the accused.

273 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What constitutes formal amendment? circumstance of disregard of rank alleged in the
Information which public respondent registered as having
A: Where: qualified the crime to Murder.
1. It neither affects nor alters the nature of the offense Acting upon such Order, the prosecutor entered his
charged; or amendment by crossing out the word Homicide and
2. The charge does not deprive the accused of a fair instead wrote the word Murder in the caption and in
opportunity to present his defense; or the opening paragraph of the Information. The accusatory
3. It does not involve a change in the basic theory of the portion remained exactly the same as that of the original
prosecution. Information for Homicide. Petitioner argued that the
amendment and/or correction ordered by the respondent
Note: The following have been held to be mere formal judge was substantial; and under Section 14, Rule 110 of
amendments: the Revised Rules of Criminal Procedure, this cannot be
1. New allegations which relate only to the range of the done, since petitioner had already been arraigned and he
penalty that the court might impose in the event of
would be placed in double jeopardy. Decide the case.
conviction;
2. An amendment which does not charge another offense
different or distinct from that charged in the original A: In the present case, the change of the offense charged
one; from Homicide to Murder is merely a formal amendment
3. Additional allegations which do not alter the and not a substantial amendment or a substitution. There
prosecutions theory of the case so as to cause surprise was no change in the recital of facts constituting the
to the accused and affect the form of defense he has or offense charged or in the determination of the jurisdiction
will assume; of the court.
4. An amendment which does not adversely affect any
substantial right of the accused; and
5. An amendment that merely adds specifications to Section 14, Rule 110 also provides that in allowing formal
eliminate vagueness in the information and not to amendments in cases in which the accused has already
introduce new and material facts, and merely states pleaded, it is necessary that the amendments do not
with additional precision something which is already prejudice the rights of the accused. The test of whether the
contained in the original information and which adds rights of an accused are prejudiced by the amendment of a
nothing essential for conviction for the crime charged complaint or information is whether a defense under the
(Ricarze v. CA, G.R. No. 160451, February 9, 2007). complaint or information, as it originally stood, would no
longer be available after the amendment is made; and
Q: What is the effect of a formal amendment? when any evidence the accused might have would be
inapplicable to the complaint or information. Since the facts
A: There is no need for another preliminary amendment alleged in the accusatory portion of the amended
and retaking of the plea of the accused if such were already Information are identical with those of the original
conducted. Information for Homicide, there could not be any effect on
the prosecution's theory of the case; neither would there
Q: When is there an amendment in substance? be any possible prejudice to the rights or defense of
petitioner (Pacoy v. Cajigal, G.R. No. 157472, Sept. 28,
A: There is an amendment in substance where it covers 2007).
matters involving the recital of facts constituting the
offense charged and determinative of the jurisdiction of the Q: How may amendment be effected?
court.
A:
Q: Is substantial amendment possible after the When Kind of Amendment How
arraignment? Made to be Made Amendment is
Made
A: After arraignment, a substantial amendment is
Before 1. Formal Without leave
proscribed except if the same is beneficial to the accused
plea amendment of court
(Ricarze v. CA, G.R. No. 160451, February 9, 2007).
2. Substantial
Substantial amendment after the plea has been taken
amendment
cannot be made over the objection of the accused, for if
3. Substantial 1. Upon a
the original would be withdrawn, the accused could invoke
amendment motion by
double jeopardy (Pacoy v. Cajical, G.R. No. 1574772,
which: the
September 28, 2007).
a. Downgrades prosecutor;
the nature of 2. With notice
the offense to the
Q: An Information for Homicide was filed in the
charged; or accused;
RTC against petitioner. Upon arraignment, petitioner, duly
b. Excludes any and
assisted by counsel de parte, pleaded not guilty to the
accused from 3. With leave
charge of Homicide. However, on the same day and after
the complaint of court
the arraignment, the respondent judge issued another
or
Order directing the trial prosecutor to correct and amend
information
the Information to Murder in view of the aggravating
After Formal amendment 1. With leave

UNIVERSITY OF SANTO TOMAS 274

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
plea of court;
and and
during Without
the trial causing
prejudice to the
rights of the
accused (Sec.
14, Rule 110).
Q: What steps should be taken by the prosecution so that
an amended information which downgrades the nature of
the offense may be validly made? Why? (2001 Bar
Question)
A: The prosecution should file a motion for leave of court
with notice to the offended party. This is for the protection
of the interest of the offended party and to prevent
possible abuse by the prosecution.
Q: Can the prosecutor amend the information which
changes the nature of the crime after the arraignment?
A: GR: No. The prosecutor can no longer amend the
information after arraignment as it would prejudice the
substantial rights of the accused.
XPN: When a fact supervenes which changes the nature
of the crime charged in the information or upgrades it
to a higher crime, the prosecutor, with leave of court,
may amend the information to allege such supervening
fact and upgrade the crime charged to the higher crime
brought about by such supervening fact.
Q: Arthur was accused of homicide for the killing of
Bebang. During the trial, the public prosecutor received a
copy of the marriage certificate of Arthur and Bebang. Can
the public prosecutor move for the amendment of the
information to charge Arthur with the crime of parricide?
Suppose instead of moving for the amendment of the
information, the public prosecutor presented in evidence
the marriage certificate without objection on the part of
the defense, could Arthur be convicted of parricide? .
(1997 Bar Question)
A:
1. No. The information cannot be amended to change
the offense charged from homicide to parricide.
Firstly, the marriage is not a supervening fact arising
from the act constituting the charge of homicide.
Secondly, after plea, amendments may be done only
as to matters of form. The amendment is substantial
because it will change the nature of the offense
(Dionaldo v. Dacuycuy, G.R. No. L-55357, Oct. 30,
1981).
2. No. Arthur can be convicted only of homicide not of
parricide which is a graver offense. The accused has
the constitutional rights of due process and to be
informed of the nature and the cause of the
accusation against him
Q: When is substitution proper?
275
A: If it appears anytime before judgment that a mistake has
been made in charging the proper offense, the court shall
dismiss the original complaint or information upon the filing
of a new one charging the proper offense, provided the
accused shall not be placed in double jeopardy (Sec. 14,
Rule 110).
Q: What are the limitations to the rule on substitution?
A:
1. No judgment has yet been rendered;
2. The accused cannot be convicted of the offense
charged or of any other offense necessarily included
therein; and
3. The accused would not be placed in double jeopardy
(Herrera, Remedial Law, Vol. IV, p. 176, 2007 ed.).
VENUE OF CRIMINAL ACTIONS
Q: Where should a criminal action be instituted?
A: GR: Subject to existing laws, criminal action shall be
instituted and tried in the court of the municipality or
territory where the offense was committed or any of its
essential ingredients occurred (Sec. 15, Rule 110).
XPNs:
1. An offense was committed on a railroad train, in
an aircraft, or in any other public or private
vehicle in the course of trip the criminal action
may be instituted and tried in the court of any
municipality or territory where such train, aircraft
or other vehicle passed during such trip, including
the place of departure and arrival;
2. Where the offense is committed on board a vessel
on its voyage the criminal action may be
instituted and tried in the proper court of the first
port of entry or of any municipality or territory
through which the vessel passed during such
voyage subject to the generally accepted
principles of international law;
3. Felonies under Art. 2 of the RPC shall be
cognizable by the proper court where the criminal
action was first filed (pars. b, c and d, Sec. 15);
4. Continuous or transitory crimes such offenses
may be tried by the court of any jurisdiction
wherever the offender may be found, but the
complainant should allege that the offense was
committed within the jurisdiction of the court
(Herrera, Vol. IV, p. 184, 2007 ed.).
5. Piracy the venue of piracy, unlike all other
crimes, has no territorial limits. It is triable
anywhere;
6. Libel the action may be instituted at the election
of the offended or suing party in the municipality
or city where:
a. The libelous article is printed and first
published;
b. If one of the offended parties is a private
individual, where said private individual
actually resides at the time of the commission
of the offense;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
c. If the offended party is a public official,
where the latter holds office at the time of the
commission of the offense.
7. B.P. 22 cases the criminal action shall be filed at
the place where the check was dishonored or
issued. In case of crossed check, the place of the
depositary or the collecting bank.
Q: Where is the proper venue for the filing of information
in the following cases?
1. The theft of a car in Pasig City which was
brought to Obando, Bulacan, where it was
cannibalized.
2. The theft by Carl, a bill collector of ABC
Company, with main offices in Makati City, of his
collections from customers in Tagaytay City. In
the contract of employment, Carl was detailed
to the Calamba branch office, Laguna, where he
was to turn in his collections.
3. The malversation of public funds by a Philippine
consul detailed in the Philippine Embassy in
London (1997 Bar Question)
A:
1. The proper venue is in Pasig City where the theft of
the car was committed, not in Obando where it was
cannibalized. Theft is not a continuing offense (People
v Mercado, G.R. No. L-2760, Feb. 11, 1950).
2. If the crime charged is theft, the venue is in Calamba
where he did not turn in his collections. If the crime of
Carl is estafa, the essential ingredients of the offense
took place in Tagaytay City where he received his
collections, in Calamba where he should have turned
in his collections, and in Makati City where the ABC
Company was based. The information may therefore
be filed in Tagaytay City or Calamba or Makati which
have concurrent territorial jurisdiction (Catingub v. CA,
G.R. No. L-29365, Mar. 25, 1983).
Alternative Answer:
The information may be filed either in Calamba or in
Makati City, not in Tagaytay City where no offense had
as yet been committed.
3. The proper court is the Sandiganbayan which has
jurisdiction over crimes committed by a consul or
higher official in the diplomatic service [Sec. 4(c), PD
1606, as amended by R.A. 7975]. The Sandiganbayan is
a national court (Nunez v. Sandiganbayan, G.R. Nos. L-
50581 - 50617, Jan. 30 1982). It has only one venue at
present, which is in Metro Manila, until R.A. 7975,
providing for two other branches in Cebu and in
Cagayan de Oro, is implemented.
Alternative Answer:
Assuming that the Sandiganbayan has no jurisdiction,
the proper venue is the first RTC in which the charge is
filed (Sec. 15 (d), Rule 110).
Q: What is the rule regarding the allegation as to the place
of the commission of the offense?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: GR: The complaint or information is sufficient if it
appears from the allegation that the offense was
committed or some of its essential ingredients occurred at
some place, within the territorial jurisdiction of the court.
XPN: When the place of commission is an essential
element of the offense, the place of the commission
must be alleged with particularity (e.g. trespass to
dwelling, destructive arson, robbery in an inhabited
house) (Sec. 10).
Q: May conviction be had even if it appears that the crime
was committed not in the place alleged in the
information?
A: GR: Yes, provided that the place of actual commission
was within the jurisdiction of the court.
XPN: The particular place of commission is an essential
element of the offense charged.
Q: Mike was charged with libel. The information however
failed to allege that complainant Roy was a resident of the
place over which the court has jurisdiction. May Mike file
a motion to quash based on such defect in the
information?
A: Yes, in libel cases, failure to allege in the information that
the offended party is a resident of the place over which the
court where the information was filed has jurisdiction and
the fact that the articles were first published and printed in
said place is a substantial defect that can be a proper
ground for a motion to quash on the ground of lack of
jurisdiction. Such defect is not merely as to form which can
be properly amended (Agustin v. De Leon, G.R. No.164938,
Aug. 22, 2005).
INTERVENTION OF OFFENDED PARTY
Q: Can the offended party intervene in the criminal
action?
A: GR: The offended party has the right to intervene by
counsel in the prosecution of the criminal action where the
civil action for the recovery of civil liability is instituted in
the criminal action pursuant to Rule 111 (Sec. 16, Rule 110).
XPN: Where:
1. from the nature of the crime and the law defining
or punishing it, no civil liability arises in favor of
the offended party, e.g. sedition, rebellion,
treason (crimes against national security);
2. the offended party waived the right to civil
indemnity; or
3. the offended party had already instituted
separate action.
Q: X requested the Ombudsman to investigate the
petitioner, Retired Brig. Gen. Jose S. Ramiscal, Jr., then
President of the Armed Forces of the Philippines
Retirement and Separation Benefits System, (AFP-RSBS)
together with twenty-seven (27) other persons for
allegedly conspiring in misappropriating AFP-RSBS funds
276
 CRIMINAL PROCEDURE
and in defrauding the government millions of pesos in
capital gains and documentary stamp taxes. Special
Prosecutor Joy C. Rubillar-Arao filed twenty-four (24)
separate Informations with the Sandiganbayan against the
petitioner and several other accused. Ramiscal filed an
Urgent Manifestation and Motion to Suspend
Proceedings, because of the pendency of his motion for
reinvestigation with the Office of the Ombudsman.
Pending resolution of the aforementioned motions, the
law firm of Albano & Associates filed a Notice of
Appearance as private prosecutors. The notice of
appearance was apparently made conformably to the
letter-request of Retired Commodore Ismael Aparri and
Retired Brig. Gen. Pedro Navarro, who are members
Association of Generals and Flag Officers, Inc. (AGFOI).
Petitioner opposed the appearance of the law firm of
Albano & Associates as private prosecutors, contending
that the charges brought against him were purely public
crimes which did not involve damage or injury to any
private party; thus, no civil liability had arisen.
Is the contention of petitioner tenable?
A: Yes. The court agreed with the contention of the
petitioner that the AGFOI, and even Commodore Aparri and
Brig. Gen. Navarro, are not the offended parties envisaged
in Section 16, Rule 110, in relation to Section 1, Rule 111 of
the Revised Rules of Criminal Procedure. Under Section 5,
Rule 110 of the Rules, all criminal actions covered by a
complaint or information shall be prosecuted under the
direct supervision and control of the public prosecutor. The
prosecution of offenses is a public function.
Under Section 16, Rule 110 of the Rules of Criminal
Procedure, the offended party may intervene in the
criminal action personally or by counsel, who will act as
private prosecutor for the protection of his interests and in
the interest of the speedy and inexpensive administration
of justice. However, the offended party is the government,
which was allegedly deprived by the petitioner and the
other accused of the capital gains and documentary stamp
taxes, based on the actual and correct purchase price of the
property stated therein in favor of the AFP-RSBS. The
AGFOI was not involved whatsoever in the sales subject of
the crimes charged; neither was it prejudiced by the said
transactions, nor is it entitled to the civil liability of the
petitioner for said cases. Thus, it is not the offended party
in the said cases (Ramiscal Jr., v. Sandiganbayan, G.R. No.
140576-99, December 13, 2004).
PROSECUTION OF CIVIL ACTIONS
RULE 111
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION WITH
CRIMINAL ACTION
Q: Does the institution of a criminal action include the civil
action as well?
A: GR: Yes. The institution or filing of the criminal action
includes the institution therein, of the civil action for
recovery of civil liability arising from the offense charged.
XPN: When the offended party:
1. waives the civil action;
2. reserves his right to file a separate civil action; or
3. institutes a civil action prior to the criminal action
(Sec. 1, Rule 111).
Q: When should reservation of the right to file civil action
be made?
A: The reservation of the right to institute separately the
civil action shall be made before the prosecution starts
presenting the evidence, and under circumstances
affording the offended party a reasonable opportunity to
make the reservation (Sec.1(2), Rule 111).
Q: Should the reservation to file a separate action be
expressed?
A: No, jurisprudence instructs that the reservation may not
be necessarily expressed but may be implied, which may be
inferred not only from the acts of the offended party but
also from acts other than those of the latter (Herrera,
Remedial Law Vol. IV, p. 228, 2007 ed.).
Note: Failure of the court to pronounce judgment as to the civil
liability amounts to the reservation of the right to a separate civil
action (Herrera, Remedial Law, Vol. IV, p. 228, 2007 ed.).
Q: What is the effect of reserving the right to file a
separate civil action?
A: The prescriptive period of the civil action that was
reserved shall be tolled (Sec. 2, Rule 111).
Q: What are the instances wherein the reservation to file a
separate civil action shall not be allowed?
A:
1. Criminal action for violation of B.P. 22 (Sec. 1(b), Rule
111);
2. A claim arising from an offense which is cognizable by
the Sandiganbayan (Herrera, Remedial Law, Vol. IV, p.
231, 2007 ed.); and
3. Tax cases.
Q: In an action for violation of B.P. 22, the court granted
the accused's demurrer to evidence filed without leave of
court. However, the accused was required to pay private
complainant the face value of the check. The accused filed
a motion for reconsideration regarding the order to pay
the face value of the check on the ground that the
demurrer to evidence applied only to the criminal aspect
of the case. Resolve the motion for reconsideration. (2003,
2001 Bar Question)
A: The motion for reconsideration should be denied. The
ground that the demurrer to evidence applied only to the
criminal aspect of the case was not correct. Under Rule 111,
the criminal action for violation of B.P. 22 shall be deemed
277 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
to include the corresponding civil action. No reservation to
file such civil action separately shall be allowed.
Q: X was charged before the City Court of Cebu with the
offense of Serious Physical Injuries Thru Reckless
Imprudence, for having allegedly sideswiped A along M. C.
Briones St., Cebu City while X was driving a jeepney
owned and registered in the name of Y who is Xs
employer. While the criminal case was pending, A filed a
separate civil action for damages based on culpa aquiliana
against X and the latter's employer, Y. X and Y filed a
motion to dismiss the civil case on the ground that the
complaint for damages was filed without the proper
reservation in the criminal action to institute a separate
and independent civil action. Rule on the motion.
A: There is no need to make a reservation of As right to file
a separate civil action inasmuch as the civil action
contemplated is not derived from the criminal liability of
the accused but one based on culpa aquiliana. The
confusion lies in the failure to distinguish between the civil
liability arising out of criminal negligence governed by the
Penal Code on one hand, and the responsibility for culpa
aquiliana or quasi-delict on the other, the latter being
separate and distinct from the civil liability arising from
crime. It is thus clear that the plaintiff-appellant's action,
being one for culpa aquiliana (Article 2176) may not be
classified as a civil action arising from the criminal offense
to be suspended "until judgment in the criminal case has
been rendered (Bordas v. Canadalla, G.R. No. L-30036, April
15, 1988).
WHEN CIVIL ACTION MAY PROCEED INDEPENDENTLY
Q: What civil actions are not deemed impliedly instituted
in the criminal action?
A: Those which are:
1. Arising from breach of contract; and
2. Independent civil actions or those based on Arts. 32,
33, 34 and Art. 2176 of the New Civil Code or quasi-
delict (Herrera, Remedial Law, Vol. IV, pp. 216-217,
2007 ed.).
Note: The failure to reserve the right to file the enumerated
actions does not amount to a waiver to institute a separate civil
action. (Herrera,Remedial Law, Vol. IV, p. 217, 2007 ed)
Q: May the offended party compromise the civil aspect of
a crime?
A: Yes, provided it must be entered before or during the
litigation and not after final judgment.
Q: Is the consolidation of civil action and criminal action
arising from the same offense allowed?
A: Yes. Before judgment on the merit is rendered in the civil
action, the same may, upon motion of the offended party,
be consolidated with the criminal action in the court trying
the criminal action (Sec. 2, Rule 111).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the effect of the consolidation of the civil and
criminal actions with regard to the evidence in each case?
A: In cases where the consolidation is given due course, the
evidence presented and admitted in the civil case shall be
deemed automatically reproduced in the criminal action
without prejudice to admission of additional evidence and
right to cross examination (Sec. 2, Rule 111).
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
Q: When is a separate civil action suspended?
A: GR: If the civil action is instituted before the criminal
action and the criminal action is subsequently commenced,
the pending civil action, in whatever stage it may be found,
shall be suspended until final judgment of the criminal
action has been rendered (Sec. 2, Rule 111).
XPNs:
1. In cases of independent civil actions based on
Arts. 32, 33, 34 and 2176 of the Civil Code;
2. In cases where the civil action presents a
prejudicial question; and
3. Where the civil action is not one intended to
enforce the civil liability arising from the offense.
Q: When may civil action proceed independently of the
criminal action?
A: The institution of an independent civil action based on
Arts. 32 33, 34 and 2176 of the Civil Code against the
offender may proceed independently of the criminal case at
the same time without the suspension of either proceeding
(Sec. 3, Rule 111).
Note: It requires only a preponderance of evidence and the
offended party is entitled only to the bigger award when the
awards in the cases vary. Recovery of civil liability under Arts. 32,
33, 34 and 2176 of the Civil Code may be prosecuted separately
even without reservation (DMPI Employees Credit Cooperative v.
Velez, G.R. No. 129282, Nov. 29, 2001). In no case, however, may
the offended party recover damages twice for the same act or
omission charged in the criminal action.
Q: Does the extinction of the penal action carry with it the
extinction of the civil action?
A: GR: The extinction of the penal action does not
extinguish the civil action.
XPN: When there is a finding in a final judgment in the
criminal action that the act or omission from which the
civil liability might arise did not exist (Sec. 2, Rule 111).
Note: The civil action that is extinguished refers exclusively to civil
liability arising from the crime and does not include civil actions:
1. Based on quasi-delict
2. Based on Arts. 32, 33 and 34 of the NCC (independent
civil actions) or
3. Civil obligation not based on the criminal offense
(Herrera, Remedial Law, Vol. IV, p. 249, 2007 ed.).
278
 CRIMINAL PROCEDURE
Q: What is the effect of the acquittal of the accused on his
civil liability?
A:
1. If the acquittal is based on the ground that he was not
the author of the crime, it will extinguish his civil
liability which may arise from the offense; or
2. If the acquittal is based on reasonable doubt on the
guilt of the accused, the civil liability of the accused
arising from the crime may be proved by
preponderance of evidence (Herrera, Remedial Law,
Vol. IV, p. 245, 2007 ed.).
Note: When the trial court acquits the accused based on
reasonable doubt, it could make a pronouncement on the civil
liability of the accused (Lontoc v. Jarantilla, G.R. No. 80194, Mar.
21, 1989). The court may be compelled to include in the judgment
of acquittal the civil liability through a petition for mandamus.
(Maximo v. Gerochi, G.R. Nos. L-47994-97, Sept. 24, 1986)
Q: When does the acquittal of the accused not bar the
continuation of the civil case?
A:
1. Acquittal based on reasonable doubt;
2. The decision contains a declaration that the liability of
the accused is not criminal but only civil in nature; and
3. The civil liability is not derived from or based on the
criminal act of which the accused is acquitted (Sanchez
v. Far East Bank and Trust Company, G.R. No. 155309,
Nov. 15, 2005).
Q: Can an employer be held civilly liable for quasi-delict in
a criminal action filed against his employee?
A: The employer cannot be held civilly liable for quasi-delict
since quasi-delict is not deemed instituted with the criminal
action. If at all the only civil liability of the employer would
be his subsidiary liability under the Revised Penal Code.
Noteworthy is the fact that the subsidiary liability
established in Arts. 102 and 103 of the Revised Penal Code
may be enforced in the same criminal case by filing in said
criminal action a motion for execution against the person
subsidiarily liable (Maniago v. CA, G.R. No. 101809, Feb. 20,
1996).
EFFECT OF DEATH OF THE ACCUSED OR CONVICT ON CIVIL
ACTION
Q: How does the death of the accused affect the civil
aspect of the case?
A: If the accused died:
1. After arraignment and during the pendency of the
criminal action
GR: The civil liability of the accused based on the
crime is extinguished.
XPN:
Independent civil action based on Arts. 32 33, 34
and 2176 of the Civil Code; and
279
Civil liability predicated on other sources of
obligations, i.e. law, contract, and quasi-contract,
which is subsequently instituted;
2. Before arraignment the offended party may file
the civil action against the estate of the deceased
(Sec. 4, Rule 111).
3. Pending appeal
a. Civil liability arising from the crime is
extinguished
b. Civil liability predicated from another
source survives i.e. civil liability arising
from law, contracts, quasi-contract and
quasi-delict.
Note: In nos. 1 and 3(b), the civil action may be continued against
the estate or legal representative of the accused after proper
substitution, as the case may be (Sec. 4, Rule 111). Where the civil
liability survives, it may be pursued by the filing of a separate civil
action unless otherwise waived, reserved or instituted prior to the
institution of the criminal action (Herrera, Remedial Law, Vol. IV, p.
257, 2007 ed.).
Q: Allan and Boyet were charged with murder committed
in conspiracy. After trial, Allan and Boyet were convicted
as charged. While the case was pending in the CA, Allan
died. Should the appeal still continue despite the death of
Allan?
A: Yes. Notwithstanding the death during the pendency of
the criminal action of one of two accused charged with and
convicted for murder committed in conspiracy, the appeal
should continue to determine criminal and civil liability.
Here, the death of Allan extinguished his criminal and civil
liability arising from the offense, but Boyet may still be
found criminally and civilly liable (People v. Tumayao, G.R.
No. L-35442, Mar. 4, 1932).
Q: Does a judgment in favor of the defendant in a civil
action bar a criminal action for the same act?
A: No, final judgment rendered in a civil action absolving
the defendant from civil liability is not a bar to criminal
action against the defendant for the same act or omission
subject of the civil action (Sec. 5, Rule 111) unless the civil
action is a prejudicial question which involves an issue
similar or intimately related to the issue raised in the
criminal, the resolution of which determines whether or
not the criminal action may proceed.
PREJUDICIAL QUESTION
Q: What is a prejudicial question? (1999 Bar Question)
A: It is an issue involved in a civil action which is similar or
intimately related to the issue raised in a criminal action,
the resolution of which determines whether or not the
criminal action may proceed.
Q: What are the elements of a prejudicial question?
A:
1. The civil action must be instituted prior to the criminal
action;
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
2. The civil action involves an issue similar or intimately
related to the issue raised in the subsequent criminal
action; and
3. The resolution of such issue determines whether or
not the criminal action may proceed (Sec. 7, Rule 111).
Note: For the principle of prejudicial question to apply, it is
essential that there be two cases involved, invariably a civil case
and a criminal case. If the two cases are both civil or if they are
both criminal, the principle does not apply. The law limits a
prejudicial question to a previously instituted civil action not to a
subsequent one.
Q: Is the resolution of the action for annulment of
marriage a prejudicial question that warrants the
suspension of the criminal case for frustrated parricide?
A: No There is a prejudicial question when a civil action and
a criminal action are both pending, and there exists in the
civil action an issue which must be preemptively resolved
before the criminal action may proceed because the issue
raised in the civil action is resolved would be determinative
of the guilt or innocence of the accused in the criminal case.
The issue in the annulment of marriage is not similar or
intimately related to the issue in the criminal case for
parricide. Further, the relationship between the offender
and the victim is not determinative of the guilt or
innocence of the accused. Even if the marriage between
petitioner and respondent is annulled, petitioner could still
be held criminally liable since at the time of the
commission of the alleged crime, he was still married to
respondent (Pimentel v. Pimentel, G.R. No. 172060,
September 13, 2010).
Q: Andrew allegedly sold to Brian a parcel of land which
Andrew later also sold to Xavier. Brian brought a civil
action for nullification of the second sale and asked that
the sale made by Andrew in his favor be declared valid.
Andrew claims that he never sold the property to Brian
and his purported signatures appearing in the first deed of
sale were forgeries. Thereafter, an information for estafa
was filed against Andrew based on the same double sale
that was the subject of the civil action. Andrew filed a
"motion for suspension of action" in the criminal case,
contending that the resolution of the issues in the civil
case would necessarily be determinative of his guilt or
innocence. Is the suspension of the criminal action in
order? Explain. (1999 Bar Question)
A: Yes. The suspension of the criminal action is in order
because the defense of Andrew in the civil action, that he
never sold the property to Brian and that his purported
signatures in the first deed of sale were forgeries, is a
prejudicial question the resolution of which is
determinative of his guilt or innocence. If the first sale is
null and void, there would be no double sale and Andrew
would be innocent of the offense of estafa.
Q: Where should the petition for suspension by reason of
prejudicial question be filed?
A:
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
1. Office of the prosecutor; or
2. Court where the criminal action has been filed for trial
at any time before the prosecution rests (Sec. 6, Rule
111).
Q: Ana, for failure to remit to Bong the money collected
and instead deposited the same to the latters personal
account, was charged with estafa. Ana filed a motion to
suspend the proceedings pending resolution of a civil case
earlier filed for accounting and damages regarding the
same subject matter. How should the prosecutor oppose
the motion? (2000 Bar Question)
A: The civil case filed by Bong against Ana for accounting
and damages does not involve an issue similar to or
intimately related to the issue of estafa raised in the
criminal action. The resolution of the issue in the civil case
for accounting will not determine whether the criminal
action for estafa may proceed.
Q: Atty. Alfred obtained a loan from Bing covered by
several postdated checks. The checks were dishonored by
the bank when Bing tried to encash them. Bing filed a case
for violation of B.P. 22 before the MTC. Bing also filed a
disbarment case. Atty. Alfred argues that the criminal
prosecution constitutes a prejudicial question in the
administrative proceedings for his disbarment. Is Atty.
Alfred correct?
A: No. Administrative cases against lawyers are sui generis.
They are distinct from and may proceed independently of
criminal cases. The burden of proof in a criminal case is
guilt beyond reasonable doubt while in an administrative
case only substantial evidence is required. Thus, a criminal
prosecution will not constitute a prejudicial question even if
the same facts and circumstances are attendant in the
administrative proceedings (Yu v. Palaa, 558 SCRA 21).
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION
Q: What are the rules regarding filing fees of civil action
deemed instituted with the criminal action?
A:
1. Actual damages
GR: No filing fee is required.
XPN: B.P. 22 cases, wherein the amount of the
filing fees shall be equivalent to the amount of
the check involved
2. Liquidated, moral, nominal, temperate or exemplary
damages The filing fee shall be based on the amount
alleged in the complaint or information (Sec. 1(4), Rule
111).
Note: If the amount of the damages claimed is not specifically
alleged in the complaint or information, but the court subsequently
awards such, the filing fees based on the amount awarded shall
constitute a first lien on the judgment (Sec. 1(3), Rule 111).
PRELIMINARY INVESTIGATION
RULE 112
280
 CRIMINAL PROCEDURE
NATURE OF THE RIGHT
Q: What is preliminary investigation?
A: It is an inquiry or proceeding to determine whether
there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial (Sec. 1).
It is merely inquisitorial and a means of determining the
persons who may be reasonably charged with a crime. It is
not a trial of the case on the merits. (Herrera, Remedial
Law, Vol. IV, p. 273, 2007 ed)
Note: A preliminary investigation is in effect a realistic judicial
appraisal of the merits of the case. Sufficient proof of the guilt of
the accused must be adduced so that when the case is tried, the
trial court may not be bound as a matter of law to order an
acquittal (Cojuangco, Jr. vs. PCGG, et. al, as held in Uy v.
Ombudsman, G.R. Nos. 156399-400, June 27, 2008).
Q: Is preliminary investigation considered part of the trial?
A: No, it is not part of the trial of the criminal action in
court. Nor is its record part of the record of the case in the
RTC. The dismissal of the case by the investigator will not
bar the filing of another complaint for the same offense,
but if re-filed, the accused is entitled to another preliminary
investigation (US v. Marfori, G.R. No. 10905, Dec. 9, 1916).
Q: What brings about the start of a preliminary
investigation?
A: By the filing of the complaint before the investigating
officer
Q: What should accompany the complaint?
A: It shall be accompanied by
1. The affidavits of the complainant;
2. The affidavits of his witnesses; and
3. Other supporting documents that would establish
probable cause (Sec. 3(a) Rule 112).
Q: Before whom shall the complaint be subscribed and
sworn?
A: The affidavits that shall accompany the complaint shall
be subscribed and sworn to before:
1. Any prosecutor;
2. Before any government official authorized to
administer oaths; or
3. In the absence or unavailability of the above
mentioned, the affidavits may be subscribed and
sworn to before a notary public.
Note: The officer or notary public before whom the affidavits were
subscribed and sworn to must certify that he personally examined
the affiants and that he is satisfied that they voluntarily executed
and understood their affidavits (Sec. 3(a), Rule 112).
Q: What is the duty of the investigating officer?
281
A: From the filing of the complaint, the investigating officer
has ten (10) days within which to decide on which of the
following options to take:
1. To dismiss the complaint if he finds no ground to
conduct the investigation; or
2. To issue a subpoena in case he finds the need to
continue with the investigation, in which case the
subpoena shall be accompanied with the complaint
and its supporting affidavits and documents (Sec. 3(b),
Rule 112).
Q: What kind of pleading is allowed to be submitted by
the respondent?
A: Within 10 days from receipt of subpoena, he is required
to submit his counter-affidavit, the affidavits of his
witnesses and the supporting documents relied upon for his
defense (Sec. 3(c) Rule 112)
Note: Despite the subpoena, if the respondent does not submit his
counter-affidavit within the ten-day period granted him, the
investigating officer shall resolve the complaint based on the
evidence presented by the complainant. The same rule shall apply
in case the respondent cannot be subpoenaed (Sec. 3(d) Rule 112).
Q: Is a motion to dismiss allowed during preliminary
investigation?
A: GR: In preliminary investigation, a motion to dismiss is
not an accepted pleading for it merely alleges the
innocence of the respondent without rebutting or
repudiating the evidence of the complainant.
XPN: When it contains countervailing evidence or defenses
and evidence which rebuts or repudiates the charges; in
which case it will be treated as a counter-affidavit.
Note: If one files a motion to dismiss and he only asserts that the
case should be dismissed, then the motion to dismiss is a mere
scrap of paper. If the respondent does not later on submit a
counter-affidavit, it will constitute a waiver on his part to file a
counter-affidavit.
Q: Is clarificatory hearing a mandatory requirement?
A: No. A hearing may be set by the investigating officer only
when there are facts and issues to be clarified either from a
party or a witness, which shall be conducted within ten
days from the submission of the counter-affidavit, other
affidavits and documents filed by the respondent.
Q: Are parties allowed to cross-examine the witness?
A: No. The parties do not have the right to examine or
cross-examine each other or the witnesses. If they have
questions to ask, they shall submit the questions to the
investigating officer who shall ask the questions (Sec. 3(e),
Rule 112).
Q: What is the duty of the prosecutor after the
termination of investigation?
A: Within ten days from the termination of the
investigation, the investigating prosecutor shall determine
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
whether or not there is sufficient ground to hold the
respondent for trial (Sec. 3(f), Rule 112). Afterwards, if the
investigating officer finds cause to hold the respondent for
trial, he shall prepare the resolution and information.
Otherwise, he shall recommend the dismissal of the
complaint. (Sec. 4, Rule 112)
Q: What shall the information contain?
A: The information shall contain a certification by the
investigating officer under oath in which he shall certify the
following:
1. That he, or as shown by the record, an authorized
officer, has personally examined the complainant and
his witnesses;
2. That there is reasonable ground to believe that a crime
has been committed;
3. That the accused is probably guilty thereof
4. That the accused was informed of the complaint and
of the evidence submitted against him; and
5. That he was given an opportunity to submit
controverting evidence (Sec. 4, Rule 112)
Note: Within five days from his resolution, he shall forward the
record of the case to the provincial or city prosecutor or chief state
prosecutor, or to the Ombudsman or his deputy in cases of
offenses cognizable by the Sandiganbayan in the exercise of its
original jurisdiction. They shall act on the resolution within ten days
from their receipt thereof and shall immediately inform the parties
of such action (Sec. 4, Rule 112).
Q: When is preliminary investigation required to be
conducted?
A: GR: Before the filing of a complaint or information for an
offense where the penalty prescribed by law is
imprisonment of at least 4 years, 2 months and 1 day
without regard to the imposable fine. (Sec.1, Rule 112).
XPNs:
1. Where an information or complaint is filed
pursuant to Sec. 7, Rule 112, i.e. the complaint or
information is filed directly in court (Sec. 1, Rule
112); or
2. For cases requiring preliminary investigation,
when a person is lawfully arrested without a
warrant provided that inquest was made in
accordance with Rule 112 (Sec. 6, Rule 112).
Note: Cases falling under summary procedure or punishable with a
penalty of imprisonment less than 4 yrs., 2 months and 1 day does
not require preliminary investigation.
PURPOSES OF PRELIMINARY INVESTIGATION
Q: What are the purposes of conducting a preliminary
investigation?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A:
1. For the investigating prosecutor to determine if the
crime has been committed;
2. To protect the accused from inconvenience, expense
and burden of defending himself in a formal trial
unless probability of his guilt is first ascertained by a
competent officer;
3. To secure the innocent against hasty, malicious, and
oppressive prosecution and to protect him from an
open and public accusation of a crime and anxiety of a
public trial;
4. To protect the State from having to conduct useless
and expensive trial; and
5. To determine the amount of bail, if the offense is
bailable (Herrera, Remedial Law, Vol. IV, p. 273, 2007
ed.).
Q: Can the right to preliminary investigation be waived?
A: Yes. While the right to preliminary investigation is a
substantive right and not a mere formal or technical right of
the accused, nevertheless, the right to preliminary
investigation is deemed waived when the accused fails to
invoke it before or at the time of entering a plea at
arraignment (People v. Buluran, G.R. No. 113940. Feb. 15,
2000).
It shall be deemed waived by:
1. Express waiver or by silence (Herrera, Remedial
Law, Vol. IV, p. 278, 2007 ed.);
2. Failure to invoke it during arraignment (People v.
De Asis, G.R. No. 105581, Dec. 7, 1993); and
3. Consenting to be arraigned and entering a plea of
not guilty without invoking the right to
preliminary investigation (People v. Bulosan, G.R.
No. 58404, Apr. 15, 1988);
Note: The waiver, whether express or implied, must be in a clear
and unequivocal manner (Herrera, Remedial Law, Vol. IV, p. 278,
2007 ed.). The right to preliminary investigation cannot be raised
for the first time on appeal (Pilapil v. Sandiganbayan, G.R. No.
101978, Apr. 7, 1993).
Q: What is the effect of absence of preliminary
investigation?
A: Absence of a preliminary investigation does not:
1. Become a ground for a motion to quash the complaint
or information as it does not impair the validity of the
information or affect the jurisdiction of the trial court
(Sec. 3, Rule 117 People v. Buluran, G.R. No. 113940,
February 15, 2000);
2. Affect the courts jurisdiction but merely the regularity
of the proceedings (People v. De Asis, G.R. No. 105581,
Dec. 7, 1993);
3. Impair the validity of the information or render it
defective; and
4. Justify the release of the respondent or nullify the
warrant of arrest against him (Larranaga v. CA, G.R.
No. 130644, Mar. 13, 1998).
Q: What is the effect if the accused raises the issue of lack
of preliminary investigation before entering a plea?
282
 CRIMINAL PROCEDURE
A: The court, instead of dismissing the information, should
conduct the preliminary investigation or order the
prosecutor to conduct it (Larranaga v. CA, G.R. No. 130644,
Mar. 13, 1998).
Q: What is the effect of lack of preliminary investigation
raised in a proceeding pending before the Sandiganbayan?
A: The proceeding will be held in abeyance and case should
be remanded to the Office of the Ombudsman or the
Special Prosecutor to conduct the preliminary investigation
(Ong v. Sandiganbayan, G.R. No. 126858, Sept. 26, 2005).
Q: What are the rights of the respondent in a preliminary
investigation?
A: The respondent has the right to:
1. Submit a counter affidavit;
Note: The prosecutor is not mandated to require the
submission of counter-affidavits. Probable cause may then be
determined on the basis alone of the affidavits and
supporting documents of the complainant, without infringing
on the constitutional rights of the petitioners. (Borlongan, Jr.
v. Pena, G.R. No. 143591, Nov. 23, 2007)
2. Examine the evidence submitted by the complainant
at his own expense; and
Note: Object evidence need not to be furnished but is
available for examination, copying or photographing at the
expense of the requesting party (Sec. 3, Rule 112).
3. Be present during the clarificatory hearing (Sec. 3, Rule
112).
WHO MAY CONDUCT DETERMINATION OF EXISTENCE OF
PROBABLE CAUSE
Q: Who are authorized to conduct a preliminary
investigation?
A:
1. Provincial or City prosecutors and their assistants;
2. National and Regional State Prosecutors; and
3. Other officers as may be authorized by law (e.g.
Ombudman; authorized officer deputized by COMELEC
for election offenses).
Note: Their authority to conduct preliminary investigation shall
include all crimes cognizable by the proper court in their respective
territorial jurisdiction (Sec. 2).
Q: May prosecutors conduct preliminary investigation of
offenses falling within the original jurisdiction of the
Sandiganbayan?
A: No, the Ombudsman has primary authority to investigate
and exclusive authority to file and prosecute
Sandiganbayan cases (Ledesma v. CA, G.R. 161629, July 29,
2005). The Ombudsman is authorized to take over at any
283
stage, from any investigatory agency of the government,
the investigation of such cases (Sec. 15, R.A. 6770).
Q: Who may conduct preliminary investigation of election
cases?
A: The Commission on Elections is vested the power to
conduct preliminary investigations; it may deputize other
prosecuting arms of the government to conduct preliminary
investigation and prosecute offenses (People v. Basilla, G.R.
No. 83938-40, Nov. 6, 1989).
RESOLUTION OF INVESTIGATING PROSECUTOR
Q: Are the findings or resolution of the investigating
prosecutor final?
A: No, the resolution of the investigating prosecutor is
merely recommendatory. No complaint or information may
be filed or dismissed by an investigating prosecutor without
the prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the
Ombudsman or his deputy (Sec. 4, Rule 112).
Q: When should the investigating prosecutor submit his
resolution for approval?
A: Within 5 days from the issuance his resolution, he shall
forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman
or his deputy (Sec. 4, Rule 112).
Q: What is the extent of the authority of the Ombudsman
in the conduct of preliminary investigation?
A: The power to investigate and to prosecute granted to
the Ombudsman is plenary and unqualified. It pertains to
any act or omission of any public officer or employee when
such act or omission appears to be illegal, unjust, improper
or inefficient. The law does not make a distinction between
cases cognizable by the Sandiganbayan and those
cognizable by the regular courts (Office of the Ombudsman
v. Breva, G.R. No. 145938, Feb. 10, 2006).
Note: This however does not include administrative cases of court
personnel because the 1987 Constitution vests in the SC
administrative supervision over all courts and court personnel.
Q: Regional Director August of the DPWH was charged
with violation of Sec. 3(e) of R.A. 3019 in the Office of the
Ombudsman. An administrative charge was likewise filed
against him in the same office. The Ombudsman assigned
a team composed of investigators from the Office of the
Special Prosecutor and from the Office of the Deputy
Ombudsman for the Military to conduct a joint
investigation of the criminal case and administrative
cases. The team of investigators recommended to the
Ombudsman that August be preventively suspended for a
period not exceeding 6 months on its finding that the
evidence of guilt is strong. The Ombudsman issued the
said order as recommended by the investigators.
August moved to reconsider the order on the following
grounds: (a) the Office of the Special Prosecutor had
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
exclusive authority to conduct a preliminary investigation
of the criminal case; (b) the order for his preventive
suspension was premature because he had yet to file his
answer to the administrative complaint. Resolve with
reasons the motion of respondent August. (2005 Bar
Question)
A: The motion should be denied for the following reasons:
1. The Office of the Special Prosecutor does not have
exclusive authority to conduct a preliminary
investigation of the criminal case. It may participate in
the investigation together with the Deputy
Ombudsman for the Military who can handle cases of
civilians;
2. The order of preventive suspension need not wait for
the answer to the administrative complaint and the
submission of countervailing evidence (Garcia v.
Mojica, G.R. No. 13903, Sept. 10, 1999);
3. In Lastimosa v. Vasquez, G.R. No. 116801, Apr. 6, 1995,
the SC ruled that preventive suspension pursuant to
Sec. 24 of the Ombudsman Act of 1989 shall continue
until termination of the case but shall not exceed six
months except in relation to R.A. 3019 (Anti-Graft and
Corrupt Practices) and P.D. 807 (statute providing for
the organization of CSC in accordance with the
provision of the Constitution prescribing the powers
and functions and other purposes). As a career
executive officer, his preventive suspension under the
Civil Service Law may only be for a maximum period of
3 months. The period of suspension under the Anti-
Graft Law shall be the same pursuant to the equal
protection clause (Garcia v. Mojica, supra).
Q: What must be done when the investigating prosecutor
recommends the dismissal of the complaint but his
findings are reversed by the superior prosecutor or
Ombudsman on the ground that probable cause exists?
A: The superior prosecutor or Ombudsman may by
himself, file the information against the respondent, or
direct another assistant prosecutor to do so without
conducting another preliminary investigation (Sec. 4, Rule
112).
Q: What degree of proof is necessary to warrant the filing
of an information or complaint in court?
A: Probable cause. It need not be based on evidence
establishing guilt beyond reasonable doubt but only such as
may engender a well-founded belief that an offense has
been committed and that the accused is probably guilty
thereof.
Probable cause is defined as the existence of such facts and
circumstances as would excite the belief in a reasonable
mind, acting on the facts within the knowledge of the
prosecutor, that the person charged was guilty of the crime
for which he was prosecuted. (Vergara vs. Ombudsman,
G.R. No. 174567, March 12, 2009).
REVIEW
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the remedy of the aggrieved party from the
resolution of the investigating prosecutor as approved by
his superior?
A: An aggrieved party may appeal by filing a verified
petition for review with the Secretary of Justice and by
furnishing copies thereof to the adverse party and
prosecution office issuing the appealed resolution. The
appeal shall be taken within 15 days from receipt of the
resolution or of the denial of the motion for
reconsideration/reinvestigation if one has been filed within
15 days from receipt of the assailed resolution. Only one
motion for reconsideration shall be allowed. Unless the
Secretary directs otherwise, the appeal SHALL NOT STAY
the filing of the corresponding information in court on the
basis of the finding of probable cause in the assailed
decision. If 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 (Sec. 4, Rule 112).
Note: The Secretary of Justice may also motu proprio
reverse or modify the resolution of provincial or city
prosecutor or chief state prosecutor. The Secretary of
justice may review resolutions of his subordinates in
criminal cases despite the information being filed in court
(Community Rural Bank of Guimba v. Talavera, A.M. No.
RTJ-05-1909, Apr. 6, 2005). The Secretary of Justice
exercises the power of direct control and supervision over
prosecutors, and may thus affirm, nullify, reverse or modify
their rulings. In reviewing resolutions of state prosecutors,
the Secretary of Justice is not precluded from considering
errors, although unassigned, for the purpose of
determining whether there is probable cause for filing cases
in court.
Q: What is the remedy of an aggrieved party against the
resolution of the Secretary of Justice?
A: The resolution of the DOJ is appealable administratively
before the Office of the President, and the decision of the
latter may be appealed before the CA pursuant to Rule 43
(De Ocampo v. Sec. of Justice, G.R. No. 147392, Jan. 25,
2006). However, if there is grave abuse of discretion
resulting to lack or excess of jurisdiction, a petition for
certiorari under Rule 65 may be filed (Ching v. Sec.of
Justice, G.R. No. 164317, Feb. 6, 2006).
Q: What is the remedy against the resolution of the
Ombudsman?
A: The resolution of the Ombudsman in administrative
cases may be subject of petition for review via Rule 43
before the CA (Section 7, Rule III of the Rules of Procedure
of the Office of the Ombudsman) or a special civil action for
certiorari via Rule 65 before the SC in criminal cases
(Mendoza-Arce v. Ombudsman, G.R. No. 149148, April 5,
2002)
284
 CRIMINAL PROCEDURE
Q: What is the effect of the filing of a petition for review
before the DOJ if the information was already filed in
court?
A: Should the information be already filed in court but the
accused filed a petition for review of the findings of the
prosecutors with the DOJ, the court is bound to suspend
the arraignment of the accused for a period not exceeding
60 days (Sec. 11, Rule 116).
Q: Does the SC and CA have the power to review
preliminary investigation?
A: Yes, The SC and CA have the power to review the
findings of prosecutors in preliminary investigations. Courts
should never shirk from exercising their power, when the
circumstances warrant, to determine whether the
prosecutors findings are supported by the facts, or by the
law. In so doing, courts do not act as prosecutors but as
organs of the judiciary, exercising their mandate under the
Constitution, relevant statutes, and remedial rules to settle
cases and controversies. The exercise of this Courts review
power ensures that, on the one hand, probable criminals
are prosecuted and, on the other hand, the innocent are
spared from baseless prosecution. (Social Security System v.
DOJ, G.R. No. 158131, Aug. 8, 2007).
Note: Even the RTCs can also make its own determination, upon
proper motion, whether probable cause exists to hold the accused
for trial ( Ladlad v. Velasco, G.R. Nos. 172070-72, 1 June 2007).
Q: Does the amendment of information warrant a new
preliminary investigation?
A: Yes. If the amendment of the information changes the
nature of the crime charged (Luciano v. Mariano, G.R. No. L-
32950, July 30, 1971); or when on its face the information is
null and void for lack of authority to file the same and
cannot be cured or revived by an amendment (Cruz, Sr. v.
Sandiganbayan, G.R. No. 94595, Feb. 26, 1995).
Q: Cite instances where a new preliminary investigation is
not necessary?
A: A new preliminary investigation is not necessary when:
1. Amendment to information is not substantial (Villaflor
v. Vivar, G.R. No. 134744, Jan. 16, 2001);
2. The court orders the filing of correct information
involving a cognate offense (Sy Lim v. CA, G. R. No. L-
37494, Mar. 30,1982); and
3. If the crime originally charged is related to the
amended charge such that an inquiry into one would
elicit substantially the same facts that an inquiry to
another would reveal (Orquinaza v. People, G.R. No.
165596, Nov. 15, 2005; Herrera, Vol. IV, p. 281, 2007
ed).
WHEN WARRANT OF ARREST MAY ISSUE
Q: What actions may the judge take upon the filing of the
complaint or Information?
A: Within ten (10) days from the filing of the complaint or
Information, the judge shall personally evaluate the
resolution of the prosecutor. In conducting the evaluation
of the resolution, the judge shall look into supporting
evidence (Sec. 5 Rule 112).
Q: What are the options of the judge upon filling of
information?
A: The RTC judge, upon the filing of an Information, has the
following options:
1. Dismiss the case if the evidence on record clearly
failed to establish probable cause;
2. If he or she finds probable cause, issue a warrant of
arrest or issue a commitment order of the accused jas
already beeb arrested pursuant to a warrant of arrest
or lawfully arrested without warrant; and
3. In case of doubt as to the existence of probable cause,
order the prosecutor to present additional evidence
within five days from notice, the issue to be resolved
by the court within thirty days from the filing of the
information.
Note: It bears stressing that the judge is required to personally
evaluate the resolution of the prosecutor and its supporting
evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. (Ong v. Genio,
G.R. No. 182336, Dec. 23, 2009).
Q: What if the complaint was already filed pursuant to a
lawful warrantless arrest?
A: The court shall issue a commitment order instead of a
warrant of arrest. In case the judge doubts the existence of
probable cause, the judge may order the prosecution to
submit additional evidence within five (5) days from notice.
The issue must be resolved by the court within thirty (30)
days from the filing of the complaint or Information. (Sec. 5,
Rule 122, Rules of Court as amended by A.M. 05-08-26-SC,
August 30, 2005).
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
Q: When is preliminary investigation not required?
A:
1. When the penalty prescribed by law for the offense
involves an imprisonment of less than four (4) years,
two (2) months, and one (1) day;
2. If a person is arrested lawfully without a warrant
involving an offense which requires preliminary
investigation, an Information or complaint may be
filed against him without need for a preliminary
investigation provided an inquest has been conducted
in accordance with existing rules. (Sec. 6 Rule 112 as
amended by A.M. No. 05-08-26-SC, August 30, 2005).
Thus if a person is arrested by a police officer in
flagrante delicto while robbing the victim, the arrest is
a lawful one and a preliminary investigation is not
required even if the penalty for robbery is more than 4
years, 2 months, and 1 day. Riano, Civil Procedure: A
Restatement for the Bar, p. 161, 2011 ed).
285 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: How are cases not requiring preliminary investigation
instituted?
A: There are two (2) ways:
1. By filing the complaint directly with the prosecutor; or
2. By filing the complaint or Information with the
municipal trial court (Sec. 8 Rule 112).
A: It is an informal and summary investigation conducted
by a public prosecutor in criminal cases involving persons
arrested and detained without the benefit of a warrant of
arrest issued by the court for the purpose of determining
whether or not said persons should remain under custody
and correspondingly be charged in court (Sec. 1, DOJ
Circular No. 61).

REMEDIES OF ACCUSED IF THERE WAS NO PRELIMINARY
INVESTIGATION
Q: When is the proper time to question the lack of
preliminary investigation?
A: He must do so before he enters his plea. The court shall
resolve the matter as early as practicable but not later than
the start of the trial. An application for or admission of the
accused to bail does not bar him from raising such question
(Sec. 26, Rule 114). Failure to invoke the right before
entering a plea will amount to a waiver.
Q: What are the duties of an inquest officer?
A: Under DOJ Circular No. 61, dated 21 September 1993,
the initial duty of the inquest officer is to determine if the
arrest of the detained person was valid, Should the Inquest
Officer find that the arrest was not made in accordance
with the Rules, he shall (a) recommend the release of the
person arrested or detained; (b)note down the disposition
on the referral document; (c)prepare a brief memorandum
indicating the reasons for the action taken; and (d) forward
the same, together with the record of the case, to the City
or Provincial Prosecutor for appropriate action.

Q: What remedies may the accused avail of if there was no Where the recommendation is approved by the City or
preliminary investigation conducted pursuant to a lawful Provincial Prosecutor but the evidence on hand warrant the
warrantless arrest? conduct of a regular preliminary investigation, the order of
release shall be served on the officer having custody of said
A: detainee and shall direct the said officer to serve upon the
1. Before the complaint or Information is filed, the detainee the subpoena or notice of preliminary
person arrested may ask for a preliminary
Commences
investigation but he must sign a waiver of the by a receipt by
provisions of Art. 125 of the RPC, as amended, in the inquest officer
presence of his counsel; from the law
2. The waiver by the person lawfully arrested of the enforcer of
provisions of Art. 125 of the RPC does not preclude complaint/
referral
him from applying for bail; documents
3. After the filing of the complaint or Information in court
without a preliminary investigation, the accused may, Inquest
within five (5) days from the time he learns of its filing, officer
ask for a preliminary investigation with the same right shall first
to adduce evidence in his evidence as provided in this determine
if the
Rule (Sec. 6 Rule 112). arrest is
valid
Q: The accused was arrested lawfully without a warrant
for carnapping and detained at Camp Crame in Quezon
City. He asked for a preliminary investigation and signed a If the arrest is valid,
If not valid, he shall
waiver of the provisions of Art. 125 of the RPC. However, detainee shall be asked if
proceed with the
the assisting judge of the Marikina RTC approved the bail the detainee wants a new
inquest but shall preliminary investigation,
bond for the accused who was being held in Quezon City. recommend the and if he does, he shall
Was the approval of the bail bond proper? release to be be made to execute a
approved by the city or waiver of the provision of
A: No. The bail must be, applied for and issued by the court provincial prosecutor Art. 125 of RPC
in the province, city, or municipality where the person
arrested is held. In this case, the bail application should
have been filed with a Quezon City court which has the When the Otherwise, Inquest
authority to grant the bail and not Marikina court (Ruiz v. recommendation for proper shall be
Beldia, Jr., A.M. No. RTJ-02-1731, 16 February 2005). release is approved,
but the evidence
conducted
warrants the conduct
of a preliminary
investigation, the said
order shall be served If the inquest officer finds
INQUEST
on the officer having probable cause, he must
custody of the prepare a
Q: What is inquest? detainee and shall complaint/information
direct the said officer with recommendation to
to serve upon the be filed in court,
detainee the otherwise recommend
subpoena or notice of the release of person
UNIVERSITY OF SANTO TOMAS 286 preliminary (Part II, manual for
2013 GOLDEN NOTES investigation Prosecutor).
 CRIMINAL PROCEDURE
investigation, together with the copies of the charge sheet
or complaint, affidavit or sworn statements of the
complainant and his witnesses and other supporting
evidence.
Q: Who may conduct preliminary investigation?
A: The preliminary investigation may be conducted by the
Inquest Officer himself or by any other Assistant Prosecutor
to whom the case may be assigned by the City or Provincial
Prosecutor, which investigation shall be terminated within
fifteen (15) days from its inception (Sec. 10 Part II Manual
for Prosecutors).
Note: If the Inquest Officer finds that probable cause exists, he
shall forthwith prepare the corresponding complaint/information
with the recommendation that the same be filed in court (Sec. 13
Part II Manual for Prosecutors). If the Inquest Officer finds no
probable cause, he shall recommend the release of the arrested or
detained person (Sec. 15 Part II Manual for Prosecutors).
Q: How is an inquest proceeding conducted?
A:
Q: What shall the referral document include?
A: it shall include:
1. Affidavit of arrest;
2. Investigation report;
3. The statement of the complainant and witnesses; and
4. Other supporting evidence gathered by the police in
the course of the latter's investigation of the criminal
incident involving the arrested or detained person.
Note: The Inquest Officer shall, as far as practicable, cause the
affidavit of arrest and statements/affidavits of the complainant and
the witnesses to be subscribed and sworn to before him by the
arresting officer and the affiants. (Sec. 3, Part II, Manual for
Prosecutors)
Q: When may the production of the detained person
before the inquest officer may be dispensed with?
A: It may be dispensed with if:
1. If he is confined in a hospital;
2. If he is detained in a place under maximum security;
3. If production of the detained person will involve
security risks; or
287
4. If the presence of the detained person is not feasible
by reason of age, health, sex and other similar factors.
(Sec.6, Part II, Manual for Prosecutors).
Q: Leo was arrested without a warrant following the
issuance by PGMA of PP 1017. On the eve of his arrest,
Leo was subjected to an inquest at the Quezon City Hall of
Justice for Inciting to Sedition (Art. 142 of the RPC) based
on a speech he allegedly gave during a rally. The inquest
was based on a joint affidavit of Leos arresting officers
who claimed to have been present at the rally. The
inquest prosecutor filed the corresponding Information
with the MeTC. Several days after the first inquest, he was
again subjected to a second inquest but this time for
rebellion allegedly committed based on the letters of CIDG
investigators claiming that Leo was the leader/ promoter
of an alleged plot to overthrow the Arroyo government.
The panel of prosecutors from the DOJ which conducted
the second inquest subsequently issued a resolution
finding probable cause to indict Leo as leader/ promoter
of alleged rebellion. The panel filed an Information with
the RTC of Makati. The court sustained the finding of
probable cause against Leo. Leo filed a Petition to set
aside the orders finding probable cause and the denial of
the MR to enjoin his prosecution. Was the second inquest
valid?
A: No. Inquest proceedings are proper only when the
accused has been lawfully arrested without
warrant. Section 5, Rule 113 of the Revised Rules of
Criminal Procedure provides the instances when such
warrantless arrest may be effected.
The joint affidavit of Leos arresting officers states that the
officers arrested Leo, without a warrant, for Inciting to
Sedition, and not for Rebellion. Thus, the inquest
prosecutor could only have conducted as he did conduct
an inquest for Inciting to Sedition and no other.
Consequently, when another group of prosecutors
subjected Leo to a second inquest proceeding for Rebellion,
they overstepped their authority rendering the second
inquest void (Crispin Beltran v. People and Secretary
Gonzales, G.R. No. 175013, June 1, 2007).
ARREST
RULE 113
Q: What is arrest?
A: It 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).
Q: Who are persons not subject to arrest?
A:
1. A senator or member of the House of Representatives
shall, in all offenses punishable by not more than 6
years imprisonment, be privileged from arrest while
Congress is in session (Sec. 11, Art. VI, 1987
Constitution);
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: The privilege of a senator or congressman will not
apply when the offense is:
a. Punishable by imprisonment of more than 6 years
even if Congress is in session (People v. Jalosjos,
G.R. No. 132875-76, Feb. 3, 2000) ; or
b. If the offense is punishable by imprisonment of
not more than 6 years, the privilege does not
apply if Congress is not in session.
2. Under the generally accepted principles of
international law, sovereign and other chiefs of state,
ambassadors, ministers plenipotentiary, ministers
resident, and charges daffaires are immune from the
criminal jurisdiction of the country of their assignment
and are therefore immune from arrest;
3. The arrest of duly accredited ambassadors, public
ministers of a foreign country, their duly registered
domestics, subject to the principle of reciprocity (Sec.
4 and 7, RA 75).
ARREST, HOW MADE
Q: How is arrest made?
A: It is made by an actual restraint of a person to be
arrested, or by his submission to the custody of the person
making the arrest (Sec. 2 Rule 113).
Note: Arrest may be made on any day, at any time of the day or
night (Sec.6, Rule 113).
Q: What is a lifetime warrant of arrest?
A: A valid warrant of arrest remains valid until arrest is
effected or the warrant is lifted (Albano citing Mamangon
v. CFI August 30, 1990)
Q: Within what period must a warrant of arrest be served?
A: There is no limitation of period. A warrant of arrest is
valid until the arrest is effected or the warrant lifted.
The head of the office to whom the warrant was
delivered must cause it to be executed within 10 days
from its receipt, and the officer to whom it is assigned
must make a report to the judge who issued the warrant
within 10 days from the expiration of the period. If he
fails to execute it, he should state the reasons
therefore. (Sec. 4, Rule 113).
ARREST WITHOUT WARRANT, WHEN LAWFUL
Q: When is warrant of arrest not necessary?
A: When the:
1. accused is already under detention;
2. complaint or information was filed pursuant to a valid
warrantless arrest; and
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
3. complaint or information is for an offense penalized by
fine only (Sec. 5 (c), Rule 112).
Q: What are the instances of a valid warrantless arrest?
A:
1. When in the presence of the arresting person, the
person to be arrested has committed, is actually
committing or is attempting to commit an offense (in
flagrante delicto arrest);
2. When an offense has in fact been committed and the
arresting person has probable cause to believe based
on personal knowledge of facts and circumstances that
the person to be arrested has committed it (doctrine
of hot pursuit);
Note: There must be compliance with the element of
immediacy between the time of the commission of the crime
and the time of arrest (People v Salvatiera, 276 SCRA 55).
3. When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where he
is serving final judgment or temporarily confined while
his case is pending or has escaped while being
transferred from one confinement to another (Sec. 5,
Rule 113).
Q: On his way home, a member of the Caloocan City police
force witnessed a bus robbery in Pasay City and effects the
arrest of the suspect. Can he bring the suspect to Caloocan
City for booking since that is where he is stationed?
Explain briefly. (2007 Bar Question)
A: No. It shall be the duty of the officer executing the
warrant to arrest the accused and to deliver him to the
nearest police station or jail without unnecessary delay
(Sec. 3, Rule 113). This rule equally applies to situations of
warrantless arrests. Here, the arrest was made in Pasay
City. Hence, the suspect should be brought to the police
station in Pasay City for booking and not in Caloocan City.
METHOD OF ARREST
Q: What are the modes of effecting arrest?
A:
1. By actual restraint of the person to be arrested;
2. By his submission to the custody of the person making
the arrest.
Q: How may arrest be effected?
A:
Method of arrest Exception to the rule on
giving information
Arrest by officer by virtue of a warrant
(Sec. 7, Rule 113)
The officer shall inform the 1. When the person to
288
 CRIMINAL PROCEDURE

person to be arrested the be arrested flees; 1. the person to be arrested is or reasonably believed to
cause of the arrest and the 2. When he forcibly be in the said building;
fact that the warrant has resists before the 2. the officer has announced his authority and purpose
been issued for his arrest. officer has an for entering therein;
opportunity to inform 3. he has requested and been denied admittance (Sec.
Note: The officer need not him; and 11, Rule 113).
have the warrant in his 3. When the giving of
possession at the time of the such information will Note: A lawful arrest may be made anywhere, even on a private
arrest but must show the same property or in a house. This rule is applicable both where the arrest
imperil the arrest.
after the arrest, if the person is under a warrant, and where there is a valid warrantless arrest.
arrested so requires.
Arrest by officer without a warrant Q: What can be confiscated from the person arrested?
(Sec. 8, Rule 113)
The officer shall inform the 1. when the person to be A:
person to be arrested of his arrested is engaged in 1. Objects subject of the offense or used or intended to
authority and the cause of the commission of an be used in the commission of the crime;
the arrest w/out a warrant offense or is pursued 2. Objects which are fruits of the crime;
immediately its 3. Those which might be used by the arrested person to
commission; commit violence or to escape; and
2. when he has escaped, 4. Dangerous weapons and those which may be used as
flees, or forcibly resists evidence in the case.
before the officer has
an opportunity to so Note: Arrest must precede the search, the process cannot be
inform him; and reversed. Nevertheless, a search substantially contemporaneous
3. when the giving of such with an arrest can precede the arrest at the outset of the search.
information will imperil Reliable information alone is not sufficient to justify a warrantless
the arrest. arrest under Sec. 5, Rule 113.
Arrest by a private person (Sec. 9, Rule 113)
Q: Jose, Alberto and Romeo were charged with murder.
The private person shall 1. when the person to be
Upon filing of the information, the RTC judge issued the
inform the person to be arrested is engaged in
warrants of arrest. Learning of the issuance of the
arrested of the intention to the commission of an
warrants, the 3 accused jointly filed a motion for
arrest him and the cause of offense or is pursued
reinvestigation and for the recall of the warrants of arrest.
the arrest. immediately its
On the date set for hearing of their motion, none of the
commission;
Note: The private person must 2. when he has escaped,
accused showed up in the court for fear of being arrested.
deliver the arrested person to The RTC judge denied their motion. Did the RTC rule
flees, or forcibly resists
the nearest police station or correctly? (2008 Bar Question)
before the officer has
jail, otherwise, he may be held
an opportunity to so
criminally liable for illegal A: The RTC ruled correctly in denying the motion for
detention. inform him; and
reinvestigation and recall of the warrants of arrest because
3. when the giving of such
the accused have not surrendered their persons to the
information will imperil
court. Jurisdiction over the person of the accused can only
the arrest.
be obtained through arrest or voluntary surrender
(Dimatulac v. Villon, G.R. No. 127107, Oct. 12, 1998).
BY OFFICER WITH WARRANT
BY OFFICER WITHOUT WARRANT
Q: What amount of force shall be used in effecting an
arrest?
Q: What is a buy-bust operation?
A: No violence or unnecessary force shall be used in making
A: A form of entrapment which has been repeatedly
an arrest. The person arrested shall not be subject to a
accepted to be a valid means of arresting violators of the
greater restraint than is necessary for his detention (Sec. 2,
Dangerous Drugs Law. The violator is caught in flagrante
Rule 113).
delicto and the police officers conducting the operation are
not only authorized but duty-bound to apprehend the
XPN: If necessary to secure and detain the offender,
violator and to search him for anything that may have been
overcome his resistance, prevent his escape, recapture him
part of or used in the commission of the crime (People v.
and protect himself from bodily harm (Albano p. 1076 citing
Juatan, G.R. No. 104378, Aug. 20, 1996).
People v. Delima, 46 Phil. 738)
Q: What are the elements of hot pursuit arrest?
Q: May an officer break into a building or enclosure to
effect an arrest?
A:
1. An offense has been committed (close proximity
A: Yes, provided that:
between the arrest and the time of commission of the
crime) (Pamaran, Revised Rules of Criminal Procedure

289 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
by pp.251-252, 2007 ed);
2. The offense has just been committed; and
3. Probable cause based on personal knowledge on the
part of the person making the arrest, of facts or
circumstances that the person/s to be arrested
committed it (Herrera, Remedial Law, Vol. IV, p. 418,
2007 ed.)
Q: The officers went to the scene of the crime where they
found a piece of wood and a concrete hollow block used
by the killers in bludgeoning the victim to death. A
neighbor of the accused who witnessed the killing,
pointed to Roberto as one of the assailants. Roberto was
arrested three hours after the killing. Is the arrest a valid
warrantless arrest?
A: Yes. Under the abovementioned circumstances, since the
policemen had personal knowledge of the violent death of
the victim and of facts indicating that Roberto and two
others had killed him, they could lawfully arrest Roberto
without a warrant. If they had postponed his arrest until
they could obtain a warrant, he would have fled the law as
his two companions did (People v. Gerente, 219 SCRA 756).
Q: What is meant by personal knowledge?
A: It means actual belief or reasonable grounds of suspicion
that the person to be arrested is probably guilty of the
offense based on actual facts.
Note: Personal gathering of information is different from personal
knowledge. The rule requires that the arrest immediately follows
the commission of the offense (People v Manlulu, 231 SCRA 701).
Q: How can an arresting officer have personal knowledge
of facts when he was not present when the crime was
committed?
A: Personal knowledge has no reference to the actual
commission of the crime but to personal knowledge of facts
leading to probable cause.
Q: What is the obligation of the arresting officer after the
warrantless arrest?
A: He must comply with the provisions of Art. 125 of the
RPC, otherwise, he may be held criminally liable for
arbitrary detention under Art. 124 of the RPC. Jurisdiction
over the person arrested must be transferred to the judicial
authorities. Art. 125 is a procedural requirement in case of
warrantless arrest. A case must be filed in court.
Q: When must officers deliver the person detained under
Art. 125 of the RPC?
A: The person must be delivered to the judicial authorities
within the period specified in Art. 125 (Delay in the delivery
of detained persons to the proper judicial authorities).
1. Light penalties 12 hours
2. Correctional penalties 18 hours
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
3. Afflictive or capital penalties 36 hours
Note: The accused should be brought to the prosecutor for inquest
proceedings wherein existence of probable cause will be
determined. Then the judge shall issue a commitment order (order
issued by the judge when the person charged with a crime is
already arrested or detained) and not a warrant.
Q: Fred was arrested without a warrant. After preliminary
investigation, an information was filed in court. He
pleaded not guilty during arraignment. After trial on the
merits, he was found guilty by the court. On appeal he
claims that judgment was void due to his illegal arrest. As
Solicitor General, how would you refute said claim? (2000
Bar Question)
A: Any objection to the illegality of the arrest of the
accused without a warrant is deemed waived when he
pleaded not guilty at the arraignment without raising the
question. It is too late to complain about a warrantless
arrest after trial is commenced and completed and a
judgment of conviction rendered against the accused
(People v. Cabiles, G.R. No. 112035, Jan. 16, 1998).
Note: An accused who enters his plea of not guilty and participates
in the trial waives the illegality of the arrest. Objection to the
illegality must be raised before arraignment, otherwise it is
deemed waived, as the accused, in this case, has voluntarily
submitted himself to the jurisdiction of the court (People v.
Macam, G.R. Nos. L-91011-12, Nov. 24, 1994).
Q: How may an illegal arrest be cured?
A: Illegality of warrantless arrest maybe cured by filing of
information in court and the subsequent issuance by the
judge of a warrant of arrest.
Q: May an accused who has been duly charged in court
question his detention by a petition for habeas corpus?
A: No. Once a person has been duly charged in court, he
may no longer question his detention by petition for habeas
corpus. His remedy is to quash the information and/or the
warrant of arrest.
Q: What are the consequences of illegal arrests?
A:
1. The documents, things or articles seized following the
illegal arrest are inadmissible in evidence;
2. The arresting person may be held criminally liable for
illegal arrest under Art. 269, RPC;
3. Arresting officer may be held civilly liable for the
damages under Art. 32, NCC; and
4. He may also be held administratively liable.
Q: Albert was killed by Bobot during a quarrel over a guest
relations officer in a nightclub. Two days after the
incident, and upon complaint of the widow of Albert, the
police arrested Bobot without a warrant of arrest and
searched his house without a search warrant.
1. Can the gun used by Bobot in shooting Albert,
which was seized during the search of the house
of Bobot, be admitted in evidence?
290
 CRIMINAL PROCEDURE
2. Is the arrest of Bobot legal? (1997 Bar Question)
A:
1. No. The gun seized during the search of the house of
Bobot without a search warrant is not admissible in
evidence [Secs. 2 and 3(2), Art. III, 1987 Constitution].
Moreover, the search was not an incident to a lawful
arrest of a person under Sec. 12, Rule 126.
2. No. A warrantless arrest requires that the crime has in
fact just been committed and the police arresting has
personal knowledge of facts that the person to be
arrested has committed it (Sec. 5, Rule 113). Here, the
crime has not just been committed since a period of
two days had already lapsed, and the police arresting
has no such personal knowledge because he was not
present when the incident happened (Go v. CA, G.R.
No. 106087, Jan. 11, 1995).
Q: May authorities resort to warrantless arrest in cases of
rebellion?
A: Yes, since rebellion has been held to be a continuing
crime, authorities may resort to warrantless arrests of
persons suspected of rebellion, as provided under Sec. 5,
Rule 113. However, this doctrine should be applied to its
proper context i.e., relating to subversive armed
organizations, such as the New Peoples Army, the avowed
purpose of which is the armed overthrow of the organized
and established government. Only in such instance should
rebellion be considered a continuing crime (People v.
Suzuki, G.R. No. 120670, Oct. 23, 2003).
BY A PRIVATE PERSON
Q: What are the instances when a private person may
make an arrest?
A:
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 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
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.
Note: In cases falling under paragraphs (a) and (b) above, the
person arrested without a warrant shall be forthwith delivered to
the nearest police station or jail and shall be subjected to an
inquest proceeding.
REQUISITES OF A VALID WARRANT OF ARREST
Q: What is warrant of arrest?
291
A: It is a legal process issued by a competent authority,
directing the arrest of a person or persons upon the
grounds stated therein (Herrera, Vol. IV, p. 345, 2007 ed.).
Q: Who may issue a warrant of arrest?
A: The 1987 Constitution speaks of judges which means
judges of all levels. This power may not be limited much
less withdrawn by Congress. The power to determine the
existence of probable cause to issue a warrant of arrest is a
function of the judge and such power lies in the judge alone
(People v. Inting, G.R. No. 85866, July 24, 1990).
Note: The exceptions is in case of deportation of illegal and
undesirable aliens, whom the President or the Commissioner of
Immigration may order arrested following a final order of
deportation for the purpose of deportation (Salazar v Achacoso,
183 SCRA 145).
Q: What are the essential requisites of a valid warrant of
arrest?
A: For an arrest warrant to be valid, it must be:
1. Issued upon probable cause;
2. Probable cause is to be determined personally by the
judge after examination under oath of the
complainant and the witnesses he may produce;
3. The judge must personally evaluate the report of the
prosecutor and the evidence adduced during the
preliminary examination (Soliven v. Makasiar GR No L-
82585, November 14, 1988);
Note: A warrant of arrest issued based only on the
prosecutors findings and recommendation like the
information and resolution finding a probable cause, without
the court determining on its own the issue of probable cause
based on evidence is null and void. (Ho vs. People, 280 SCRA
365; Pamaran, Revised Rules of Criminal Procedure, p. 237,
2007 ed)
4. The warrant must particularly describe the person to
be arrested; and
5. It must be in connection with specific offense or crime.
Q: What is the period of validity of a warrant of arrest?
A: No time limit is fixed for the validity of a warrant of
arrest, unlike a search warrant, which is effective only for
10 days (Pamaran, Revised Rules of Criminal Procedure
Annotated, p.247, 2001 ed.). It remains valid until arrest is
effected or the warrant is lifted. (Manangan v. CFI, G.R.
82760, Aug. 30, 1990)
DETERMINATION OF PROBABLE CAUSE FOR ISSUANCE OF
WARRANT OF ARREST
Q: What is probable cause?
A: It refers to facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an
offense has been committed by the persons involved. It
need not be based on clear and convincing evidence of
guilt. Neither is it based on evidence establishing guilt
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
beyond reasonable doubt or on evidence establishing
absolute certainty of guilt. It simply implies probability of
guilt and requires more than bare suspicion but less than
evidence which would justify a conviction. A finding of
probable cause need only rest on evidence showing that
more likely than not a crime has been committed and was
committed by the suspects (The Presidential Ad-Hoc Fact-
Finding Committee on Behest Loans v. Desierto, G.R. No.
136225, Apr. 23, 2008).

Q: What is the procedure in determining the existence of probable cause?

DISTINGUISH PROBABLE CAUSE OF FISCAL FROM THAT OF
A JUDGE
Probable Cause as Probable Cause as
determined by the determined by the
Prosecutor Judge
Purpose For the filing of an For the issuance of
information in warrant to
court by determine whether
determining there is a necessity
whether there is for placing the
reasonable ground accused under
to believe that the immediate custody
accused is guilty of in order not to
the offense frustrate the ends of
charged and should justice (P/Supt. Cruz
be held for trial v. Judge Areola, A.M.
No. RTJ-01-1642,
March 6, 2002)
Function Executive function Judicial function
Basis Reasonable ground The report and the
to believe that a supporting
crime has been documents
committed submitted by the
fiscal during the
preliminary
investigation and the
supporting affidavits
that may be
required to be
submitted.
Q: What is the remedy for warrants improperly issued?
A: Where a warrant of arrest was improperly issued, the
proper remedy is a petition to quash it, NOT a petition for
habeas corpus, since the court in the latter case may only
order his release but not enjoin the further prosecution or
the preliminary examination of the accused (Alimpoos v.
Court of Appeals, GR No L-27331, July 30, 1981)
BAIL
RULE 114
It is the security given for the release of a person in custody
of the law, furnished by him or a bondsman, to guarantee
his appearance before any court as required under the
conditions prescribed under the rules (Sec. 1, Rule 114).
Q: What are the conditions attached to the grant of bail?
A: All kinds of bail are subject to the following conditions:
(a) The undertaking shall be effective upon approval, and
unless cancelled, shall remain in form at all stages of
the case until promulgation of the judgment of the
Regional Trial Court, irrespective of whether the case
was originally filed in or appealed to it;
(b) The accused shall appear before the proper court
whenever required by the court or these Rules;
(c) The failure of the accused to appear at the trial
without justification and despite due notice shall be
deemed a waiver of his right to be present thereat. In
such case, the trial may proceed in absentia; and

UNIVERSITY OF SANTO TOMAS 292

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
(d) The bondsman shall surrender the accused to the
court for execution of the final execution.
Note: The original papers shall state the full name and
address of the accused, the amount of the undertaking and
the conditions required by this section. Photographs
(passport size) taken within the last six (6) months showing
the face, left and right profiles of the accused must be
attached to the bail (Rule 114, Sec. 2).
Note: When the court finds that there is likelihood of the accused
jumping bail or committing other harm to the citizenry is feared,
the court may grant other conditions in granting bail (Almeda v.
Villaluz, G.R. No. L-31665, Aug. 6, 1975).
The court however may not impose additional obligations upon the
bondsmen other than those provided by law. The obligation
imposed upon the bondsmen cannot be greater nor of a different
character than those imposed upon the accused (Bandoy v. Judge
of CFI of La Laguna, GR. No. L-5200, March, 11, 1909)
By filing forged bail bonds, appellants are considered not merely to
have jumped bail, but for all intents and purposes to have escaped
from detention. Hence, their pending appeal should be dismissed,
subject to the filing of the proper criminal cases against the parties
responsible therefor (People of the Philippines v. Del Rosario, G.R.
Nos. 107297-98. December 19, 2000).
Q: What is the nature of the liability of the surety or
bondsmen?
A: It is inherently civil in nature. The liability of the
bondsmen on the bail bond arises not from the violation of,
or an obligation to comply with, a penal provision of law. It
emerges instead from a contract, the bond subscribed
jointly by the accused and the surety or bondsmen.
The obligation of the accused on the bond is different from
the surety in that the former can be made to suffer a
criminal penalty for failure to comply with the obligations
on the bail bond. However, the surety is not under a similar
path of punishment, as its liability on the bail bond would
merely be civil in character (Reliance Surety and Insurance
Co. v. Amante Jr., et. al., G.R. No. 150994, June 30, 2005).
NATURE
Q: What is the nature of bail proceedings?
A: The hearing of an application for bail should be summary
or otherwise in the discretion of the court.
Note: By 'summary hearing' means such brief and speedy method
of receiving and considering the evidence of guilt as is practicable
and consistent with the purpose of the hearing which is merely to
determine the weight of the evidence for the purpose of bail
(Ocampo v. Bernabe, 77 Phil. 55)
Q: What are the purposes of bail?
A:
1. To relieve an accused from the rigors of imprisonment
until his conviction and yet secure his appearance at
293
the trial (Almeda v. Villaluz GR No L-31665, August 6,
1975);
2. To honor the presumption of innocence until his guilt
is proven beyond reasonable doubt;
3. To enable him to prepare his defense without being
subjected to punishment prior to conviction.
Q: What is the basis of the right to bail?
A: The right to bail is a constitutional right which flows from
the presumption of innocence in favor of every accused
who should not be subjected to the loss of freedom. Thus,
the right to bail only accrues when a person is arrested or
deprived of his liberty. The right to bail presupposes that
the accused is under legal custody (Paderanga v. Court of
Appeals, 247 ACRS 741).
Q: Andrew was charged with the crime of estafa in the
RTC of Manila. A warrant of arrest was issued by Judge
Matias. Before the warrant of arrest could be served,
Judge Matias issued a recall order of the warrant of arrest
issued against Andrew in view of the approval of his bail
bond by the Executive Judge of the RTC of Manila. Was
the application for bail of Andrew validly approved?
A: No. The right to bail can only be availed of by a person
who is in custody of the law or otherwise deprived of his
liberty and it would be premature to file a petition for bail
for someone whose freedom has yet to be curtailed. Here,
the bail application of Andrew was approved before the
warrant for his arrest could be served (Alva v. CA, G.R. No.
157331, April 12, 2006).
Q: Where should bail be filed?
A:
1. In the court where the case is pending; or
2. In the absence or unavailability of the judge thereof,
with any RTC judge, MTC judge, or MCTC judge in the
province, city, or municipality.
Note: Where the grant of bail is a matter of discretion, or the
accused seeks to be released on recognizance, the application may
only be filed in the court where the case is pending, whether on
preliminary investigation, trial, or on appeal.
When bail is filed with a court other than where the case is
pending, the judge who accepted the bail shall forward it, together
with the order of release and other supporting papers, to the court
where the case is pending (Sec. 19, Rule 114).
Q: What are other instances when bail is filed?
A:
1. If the accused is arrested in a province, city, or
municipality other than where the case is pending, bail
may also be filed with any RTC of said place, or if no
judge thereof is available, with any MTC judge, MCTC
therein; or
2. Any person in custody who is not yet charged in court
may apply for bail with any court in the province, city,
or municipality where he is held (Sec. 17, Rule 114).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: If an information was filed in the RTC Manila charging
Mike with homicide and he was arrested in Quezon City,
in what court or courts may he apply for bail? Explain.
(2002 Bar Question)
A: Mike may apply for bail in RTC Manila where the
information was filed or in the RTC Quezon City where he
was arrested, or if no judge thereof is available, with any
MTC judge or MCTC judge therein.
Q: Is bail available during preliminary investigation?
A: Yes, when a person lawfully arrested without a warrant
asks for preliminary investigation before the complaint or
information is filed in court, he may apply for bail (Sec. 6,
Rule 112).
Q: Where should the accused file bail upon conviction by
the RTC of an offense not punishable by death, reclusion
perpetua or life imprisonment?
A: Bail should be filed with the trial court despite the filing
of a notice of appeal provided that it has not yet
transmitted the original record to the appellate court. If the
decision of the trial court convicting the accused changed
the nature of the offense from non-bailable to bailable,
then bail must be filed with the appellate court (Sec. 5, Rule
114).
Q: What are the rules provided by law with regard to
juveniles in conflict with the law with respect to bail of
non-capital offenses?
A:
1. The privileged mitigating circumstances of minority
shall be considered. (Sec. 34, R.A. 9344, Juvenile and
Justice Act of 2006)
2. Where a child is detained, the court shall order the:
a. release of the minor on recognizance to his/her
parents and other suitable person;
b. release of the child in conflict with the law on
bail; or
c. transfer of the minor to a youth detention
home/youth rehabilitation center (Sec. 35, R.A.
9344).
Note: The court shall not order the detention of a child in a
jail pending trial or hearing of his/her case (Sec. 35, R.A.
9344).
Q: What if the minor is unable to furnish bail?
A: The minor shall be, from the time of his arrest,
committed to the care of the DSWD or the local
rehabilitation center or upon recommendation of DSWD or
other agencies authorized by the court may, in its discretion
be released on recognizance (Sec. 36, R.A. 9344).
Q: Is bail available on court martial offenses?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: No. An accused military personnel triable by courts
martial or those charged with a violation of the Articles of
War does not enjoy the right to bail.
Q: Ana is the lone eyewitness to the brutal murder of
Bruno allegedly committed by accused Carlo. She
deliberately refuses to appear on the scheduled dates for
the taking of her testimony for fear of reprisal from Carlo's
die-hard followers.
1. May the court motu proprio order her to post bail?
2. How shall Ana be proceeded against if she refuses to
give bail?
3. What protection may Ana avail if in case she decides
to testify at the trial? (1994 Bar Question)
A:
1. No. The rules require that the order to post bail is
upon motion of either party.
2. If Ana refuses to post bail, the court shall commit her
to prison until she complies or is legally discharged
after her testimony has been taken (Sec. 14, Rule 119).
3. Ana may avail of the benefits under the Witness
Protection Act.
Note: The court may require a witness to post bail if he is a
material witness and bail is needed to secure his appearance.
When the court is satisfied, upon proof or oath, that a material
witness will not testify when required, and he or she is a lone
eyewitness to the crime, it may, upon motion of either party, order
the witness to post bail in such sum as may be deemed proper.
Upon refusal to post bail, the court shall commit him to prison until
he complies or is legally discharged after his testimony is taken.
Q: May a prosecution witness be required to post bail?
A: Yes. A prosecution witness may be required to post bail
to ensure his appearance at the trial of the case where:
1. There is substitution of information (Section 14, Rule
110); and
2. Where the court believes that a material witness may
not appear at the trial (Section 14, Rule 119)
WHEN A MATTER OF RIGHT; EXCEPTIONS
WHEN A MATTER OF DISCRETION
Q: When is bail a matter of right and when is it a matter of
discretion?
A:
1. Bail is a matter of right
a. Before or after conviction by the metropolitan
and municipal trial courts, and
b. Before conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment (Sec. 4, Rule 114).
c. Before final conviction by all children in conflict
with the law for an offense not punishable by
reclusion perpetua or life imprisonment.
2. Bail is a matter of discretion
a. Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment
294
 CRIMINAL PROCEDURE
b. Regardless of the stage of the criminal
prosecution, a person charged with a capital
offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence of
guilt is not strong (Sec. 7, Rule 114); and
c. A child in conflict with the law charged with an
offense punishable by death, reclusion perpetua
or life imprisonment when evidence of guilt is
not strong (Sec. 28, A.M. No. 02-1-18-SC).
Note: The prosecution cannot adduce evidence for the denial of
bail where it is a matter of right. However where the grant of bail is
discretionary, the prosecution may show proof to deny the bail.
Q: What are the guidelines regarding the effectivity of
bail?
A: The Supreme Court en banc laid the following policies
concerning the effectivity of the bail of the accused:
1. When the accused is charged with an offense which is
punishable by a penalty lesser than reclusion perpetua
at the time of the commission of the offense, or the
application for bail and thereafter he is convicted of a
lesser offense than that charged, he may be allowed to
be released on the same bail he posted, pending his
appeal provided, he does not fall under any conditions
of bail.
2. The same rule applies if he is charged with a capital
offense but later on convicted of a lesser offense, that
is, lower than that charged.
3. If on the other hand, he is convicted of that offense
which was charged against him, his bail shall be
cancelled and he shall thereafter be placed in
confinement.
Note: Bail in these circumstances is still not a matter of right but
only a matter of sound discretion of the court (Herrera, Remedial
Law Vol. IV, p. 470, 2007 ed.).
Q: What are the grounds for denial of bail if the penalty
imposed by the trial court exceeds 6 years?
A: 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:
1. That he is a recidivist, quasi-recidivist or habitual
delinquent, or has committed the crime aggravated by
the circumstance of reiteration;
2. That he previously escaped from legal confinement,
evaded sentence, or has violated the conditions of his
bail without valid justification;
3. That he committed the offense while on probation,
parole, or under conditional pardon;
4. That the circumstances of his case indicate the
probability of flight if released on bail; or
5. That there is undue risk that during the pendency of
the appeal, he may commit another crime (Sec. 5, Rule
114).
Q: Is notice of hearing required?
295
A: Whether bail is a matter of right or of discretion,
reasonable notice of hearing is required to be given to the
prosecutor or fiscal, or at least he must be asked for his
recommendation.
Q: Why is recommendation necessary?
A: It is necessary because in fixing the amount of bail, the
judge is required to take into account a number of factors
such as the applicants character and reputation, forfeiture
of other bonds or whether he is a fugitive from justice.
Q: What is the remedy of the accused when bail is
discretionary? (1999 Bar Question)
A: When bail is discretionary, the remedy of the accused is
to file a petition for bail. Once a petition for bail is filed, the
court is mandated to set a hearing. The purpose of the
hearing is to give opportunity to the prosecution to prove
that the evidence of guilt is strong. If strong, bail will be
denied. If weak, the bail will be granted.
Q: In what forms may bail be given?
A:
1. Corporate surety/ Bail bond;
a. An obligation under seal given by the accused
with one or more sureties and made payable to
the proper officer with the condition to be void
upon performance by the accused of such acts as
he may be legally required to perform;
b. The accused goes to an authorized bonding
company and he will pay a premium for the
service which is a percentage of the total amount
of bail. The bonding company will then go to the
court and execute an undertaking, or "security
bond" in the amount of the bail bond in behalf of
the accused, that if the accused is needed, the
bonding company will bring him before the court;
c. If the accused jumps bail, the bond will be
cancelled and the bonding company will be given
sufficient time to locate the whereabouts of the
accused who posted bail but later on jumps bail.
Notice to bonding company is notice to the
accused. Notice is usually sent to the bonding
company in order to produce the body of the
accused.
Note: Liability of surety/bondsman covers all three stages: trial,
promulgation, and execution of sentence.
2. Property bond;
a. The title of the property will be used as security
for the provisional liberty of the accused which
shall constitute a lien over the property;
b. The accused shall cause the annotation of the lien
within 10 days after approval of the bond before
the:
i. Registry of Deeds if the property is
registered; or
ii. Registration Book in the Registry of Deeds of
the place where the land lies and before the
provincial, city or municipal assessor on the
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
corresponding tax declaration if property is
not registered (Sec. 11, Rule 114);
c. The person who undertakes the conditions of a
regular bond will be the custodian of the accused
during the time that he is under provisional
liberty.
Note: In all cases, the surety of properties must be worth the
amount specified in his own undertaking over and above all just
debts, obligations and properties exempt from execution (Sec. 12,
Rule 114).
A: It refers to an offense which, under the law existing at
the time of its commission and of the application for
admission to bail, may be punished with death (Sec. 6,
Rule 114).
Note: RA 9346: An Act Prohibiting the Imposition of Death Penalty
in the Philippines, abolished the death penalty.
Q: May a person charged with a capital offense be
admitted to bail?

3. Cash deposit/ Cash bond;
a. It is the deposited by the accused himself or any
person acting in his behalf;
b. Cash shall be in the amount fixed by the court or
recommended by the prosecutor who
investigated the case;
c. It is to be deposited before the:
i. Nearest collector of internal revenue;
ii. Provincial, city or municipal treasurer; or
iii. Clerk of court where the case is pending;
d. No further order from the court is necessary for
the release of the accused if the conditions
prescribed were complied with (Sec. 14, Rule
114);
e. If the accused does not appear when required,
the whole amount of the cash bond will be
forfeited in favor of the government and the
accused will now be arrested.
A: It depends. No person charged with a capital offense, or
an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of
guilt is strong, regardless of the stage of the criminal
prosecution (Sec. 7, Rule 114).
Q: In an Information charging them with murder,
policemen Ian, Paul and Steve were convicted of
homicide. Ian appealed from the decision but Paul and
Steve did not. Paul started serving his sentence but Steve
escaped and is at large. In the CA, Ian applied for bail but
was denied. Finally, the CA rendered a decision acquitting
Ian on the ground that the evidence pointed to the NPA as
the killers of the victim.
1) Was the Court of Appeal's denial of Ian's application
for bail proper?
2) Can Paul and Steve be benefited by the decision of
the CA? (1998 Bar Question)

4. Recognizance A:
a. An obligation of record, entered into before some 1. Yes, the CA properly denied Ian's application for bail.
court or magistrate duly authorized to take it with The court had the discretion to do so. Although Ian
the condition to do some particular act. It is an was convicted of homicide only, since he was charged
undertaking of a disinterested person with high with a capital offense, on appeal he could be convicted
credibility wherein he will execute an affidavit of of the capital offense (Obosa v. CA, G.R. No. 114350,
recognizance to the effect that when the Jan. 16, 1997).
presence of the accused is required in court, the
custodian will bring him to that court. Alternative Answer:
b. This is allowed for light felonies only. Under Circular No. 2-92, Ian is entitled to bail because
he was convicted of homicide and hence the evidence
Note: If the accused does not appear despite notice to the of guilt of murder is not strong.
custodian, or the person who executed the recognizance does not
produce the accused, he may be cited for contempt of court. This is
the remedy because no money is involved in recognizance. 2. Paul, who did not appeal, can benefit from the
decision of the CA which is favorable and applicable to
Q: Distinguish Bail Bond from Recognizance. him [Sec. 11(a) Rule 122]. The benefit will also apply to
Steve even if his appeal is dismissed because of his
A: escape
BAIL BOND RECOGNIZANCE
An obligation under seal An obligation of record GUIDELINES IN FIXING AMOUNT OF BAIL
given by the accused with entered into before some
one or more sureties, and court or magistrate duly Q: What are the primary considerations in fixing the
made payable to the proper authorized to take it with reasonable amount of bail?
officer with the condition to the condition to do some
be void upon performance particular act, the most A:
by the accused of such acts usual condition in criminal 1. Financial ability of the accused to give bail;
as he may legally be cases being the appearance 2. Nature and circumstances of the offense;
required to perform. of the accused for trial. 3. Penalty of the offense charged;
4. Character and reputation of the accused;
HEARING OF APPLICATION FOR BAIL IN CAPITAL OFFENSES 5. Age and health of the accused;
6. Weight of evidence of the accused;
Q: What is a capital offense? 7. Probability of the accused to appear in trial;

UNIVERSITY OF SANTO TOMAS 296

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
8. Forfeiture of other bail;
9. The fact that the accused was a fugitive from justice
when arrested; or
10. Pendency of other cases when the accused is on bail
(Sec. 9, Rule 114).
Q: What is the principal factor to consider in bail fixing?
A: The principal factor to the determination of which most
other factors are directed is the probability of the
appearance of the accused, or of his flight to avoid
punishment (Villasenor v Abano, 21 SCRA 312).
BAIL WHEN NOT REQUIRED
Q: What are the instances where bail is not necessary or
when recognizance is sufficient?
A:
1. When the offense charged is for violation of an
ordinance, a light, or a criminal offense, the imposable
penalty of which does not exceed 6 months
imprisonment and/or P2,000 fine, under
circumstances provided under R.A. 6036 (An Act
providing that bail shall not, with certain exceptions,
be required In cases of violations of municipal or city
ordinances and in light offenses);
2. Where a person has been in custody for a period equal
to or more than the minimum of the imposable
principal penalty, without application of the
Indeterminate Sentence Law or any modifying
circumstance, in which case the court, in its discretion,
may allow his release on a reduced bail or on his own
recognizance (Sec. 16, Rule 114);
3. Where the accused has applied for probation, pending
the resolution of the case but no bail was filed or the
accused is incapable of filing one (Sec. 24, Rule 114);
4. In case of a youthful offender held for a physical and
mental examination, trial, or appeal, if he is unable to
furnish bail and under circumstances envisaged in P.D.
603 (Child and Youth Welfare Code) as amended.
5. Before final conviction, all juveniles charged with
offenses falling under the Revised Rule on Summary
Procedure shall be released on recognizance to the
custody of their parents or other suitable person who
shall be responsible for the juveniles appearance in
court whenever required (Sec. 15, A.M. No. 02-1-18-
SC).
Q: What are the duties of the trial judge if an application
for bail is filed?
A:
1. Reasonably notify the prosecutor of the hearing of the
application for bail or require him to submit his
recommendation (Sec. 18, Rule 114);
2. 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, Rule 114);
3. Decide whether the evidence of guilt of the accused is
strong based on the summary of evidence of the
297
prosecution (Baylon v. Sison, A.M. No. 92-7-360-0, Apr.
6, 1995);
4. If the guilt of the accused is not strong, discharge the
accused upon the approval of the bailbond. Otherwise,
petition should be denied (Sec. 19, Rule 114)
Q: Who has the burden of proof in bail applications?
A: It is the prosecution who has the burden of showing that
evidence of guilt is strong at the hearing of an application
for bail filed by a person who is charged for the commission
of a capital offense or offense punishable by reclusion
perpetua or life imprisonment (Sec. 8, Rule 114).
Q: What is the effect of a grant of bail?
A: The accused shall be released upon approval of the bail
by the judge (Sec. 19, Rule 114).
Q: Domingo was charged with murder, a capital offense.
After arraignment, he applied for bail. The trial court
ordered the prosecution to present its evidence in full on
the ground that only on the basis of such presentation
could it determine whether the evidence of Domingo's
guilt was strong for purposes of bail. Is the ruling correct?
(2002 Bar Question)
A: No. At the hearing of an application for bail filed by a
person who is in custody for the commission of an offense
punishable by death, reclusion perpetua, or life
imprisonment, the prosecution has the burden of showing
that evidence of guilt is strong. The prosecution is only
required to present as much evidence as is necessary to
determine whether the evidence of Domingos guilt is
strong for purposes of bail (Sec. 8, Rule 114).
INCREASE OR REDUCTION OF BAIL
Q: May the amount of bail be reduced or increased?
A: Yes, after the accused is admitted to bail, the court may,
upon good cause, either increase or reduce its amount.
When increased, the accused may be committed to custody
if he does not give bail in the increased amount within a
reasonable period (Sec. 20, Rule 114).
Note: A motion to reduce the amount of bail likewise requires a
hearing before it is granted in order to afford the prosecution the
chance to oppose it (Sec. 18, Rule 114).
Note: Excessive bail may not be imposed because that is
tantamount to denying bail
Q: When the accused is entitled as a matter of right to
bail, may the court refuse to grant him bail on the ground
that there exists a high degree of probability that he will
abscond or escape? Explain. (1999 Bar Question)
A: No. Where the offense is bailable, the mere probability
that the accused will escape or if he had previously escaped
while under detention does not deprive him of his right to
bail. The remedy is to increase the amount of bail, provided
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
the amount is not excessive (Sy Guan v. Amparo, G.R. No. L-
1771, Dec. 4, 1947).
Q: May bail still be filed after final judgment?
A: No. Bail may not be filed once there is already a final
judgment (Sec. 24, Rule 114).
XPN:
Even after conviction by the MTC, bail is still a matter of
right.
Note: If before such finality, the accused applies for probation, he
may be allowed temporary liberty under his bail. In no case shall
bail be allowed after the accused has commenced to serve
sentence.
FORFEITURE AND CANCELLATION OF BAIL
Q: What are the effects of the failure of the accused to
appear in court when so required?
A:
1. The bail shall be declared forfeited; or
2. The bondsman is given 30 days within which to:
a. produce their principal or give the reason for his
non-production; and
b. explain why the accused did not appear before
the court when first required to do so.
Q: What is the liability of the bondsmen if they fail to
produce their principal, give the reason for his non-
production, or explain why the accused did not appear
when required?
A: If the bondsmen fail to comply with their obligations, the
court will render judgment against the bondsmen jointly
and severally if there are more than one bondsman (Sec.
21, Rule 114).
Note: The court shall not reduce or mitigate the liability of the
bondsmen unless the accused has been surrendered or is acquitted
(Sec. 21, Rule 114). The 30 day period granted to the bondsmen to
comply with the two requisites for the lifting of the order of
forfeiture cannot be shortened by the court but may be extended
for good cause shown.
Q: When may bail be cancelled?
A: Upon the application of the bondsmen with due notice
to the prosecutor, bail may be cancelled upon:
1. surrender of the accused; and
2. proof of death of the accused (Sec. 22, Rule 114).
Q: When is bail deemed automatically cancelled?
A: Upon:
1. Acquittal of the accused;
2. Dismissal of the case; and
3. Execution of judgment of conviction (Sec. 22, Rule
114).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: In all instances of cancellation of bail, automatic or
otherwise, it shall be without prejudice to any liability on the part
of the surety.
Q: Distinguish Order of Forfeiture from Order of
Cancellation.
A:
ORDER OF ORDER OF CANCELLATION
FORFEITURE
Conditional and Not independent of the
interlocutory. It is order of forfeiture. It is a
not appealable judgment ultimately
determining the liability of
the surety thereunder and
therefore final. Execution
may issue at once.
Q: What is the remedy of the accused when bail is denied
by the trial court?
A: File a petition for certiorari under Rule 65 based on grave
abuse of discretion amounting to lack or excess of
jurisdiction in issuing such order. Such petition must take
into account the hierarchy of courts. In the meantime
however, while the case is pending, the accused may not be
released (Caballes v. CA, G.R. No. 163108, Feb. 23, 2005).
Q: Is bail proper if the accused is suffering from poor
health condition?
A: No, if continued confinement of the accused would be
detrimental or dangerous to his health, the remedy would
be to submit him to medical treatment or hospitalization.
APPLICATION FOR BAIL IS NOT A BAR TO OBJECTIONS IN
ILLEGAL ARREST; LACK OF OR IRREGULAR PRELIMINARY
INVESTIGATION
Q: Is an application for bail a bar to questions of illegal
arrest by reason of irregularity or lack of preliminary
investigation?
A: No, provided that he raises them before entering his
plea. The court shall resolve the matter as early as possible,
not later than the start of the trial on the case (Sec. 26, Rule
114).
Q: Paolo was charged with estafa. Thereafter, he was
arrested by virtue of a warrant of arrest issued by the RTC.
Before arraignment, Paolo filed an application for bail.
Paolo then filed a motion to quash information on the
ground that it charges more than one offense. RTC denied
bail to Paolo on the ground that an application for bail and
a motion to quash are inconsistent remedies. Is the RTC
correct?
A: No. There is no inconsistency in filing an application of an
accused for bail and his filing of a motion to quash. The
purpose of bail is to obtain the provisional liberty of a
person charged with an offense until his conviction while at
the same time securing his appearance at the trial. On the
other hand, a motion to quash an information is the mode
298
 CRIMINAL PROCEDURE
by which an accused assails the validity of a criminal
complaint or information filed against him for insufficiency
on its face in point of law, or for defects which are apparent
on the face of the information.
These two reliefs have objectives which are not necessarily
antithetical to each other. The right of an accused to seek
provisional liberty when charged with an offense not
punishable by death, reclusion perpetua or life
imprisonment, or when charged with an offense punishable
by such penalties but after due hearing, evidence of his
guilt is found not to be strong, does not preclude his right
to assail the validity of the information charging him with
such offense. It must be conceded, however, that if a
motion to quash a criminal complaint or information on the
ground that the same does not charge any offense is
granted and the case is dismissed and the accused is
ordered released, the petition for bail of an accused may
become moot and academic (Serapio v. Sandiganbayan,
G.R. Nos. 148468, 148769 & 149116, Jan. 28, 2003).
Q: Is arraignment required before the court grants bail?
A: No, for the following reasons:
1. The trial court could ensure the presence of the
accused at the arraignment precisely by granting bail
and ordering his presence at any stage of the
proceedings (Section 2(b), Rule 114); and
2. The accused would be placed in a position where he
has to choose between filing a motion to quash and
thus delay his release on bail, and foregoing the filing
of a motion to quash so that he can be arraigned at
once and thereafter be released on bail (Lavides v.
Court of Appeals, GR No. 129670, February 1, 2000).
Q: Bobby was charged with plunder before the
Sandiganbayan. Thereafter, he was arrested by virtue of a
warrant of arrest. He then filed an application for bail. The
Sandiganbayan refused to resolve his application for bail
until after his arraignment. He argues that his arraignment
is not a pre-condition to his application for bail. Is Bobby
correct? Explain.
A: Yes, the arraignment of an accused is not a prerequisite
to the conduct of hearings on his petition for bail. A person
is allowed to petition for bail as soon as he is deprived of
his liberty by virtue of his arrest or voluntary surrender. An
accused need not wait for his arraignment before filing a
petition for bail.
Note: If the court finds in such case that the accused is entitled to
bail because the evidence against him is not strong, he may be
granted provisional liberty even prior to arraignment; for in such a
situation, bail would be "authorized" under the circumstances
(Serapio v. Sandiganbayan, G.R. Nos. 148468, 148769 & 149116,
Jan. 28, 2003).
Q: Charged with murder, Leviste was convicted with the
crime of homicide and was sentenced to suffer an
indeterminate penalty of six years and one day of prision
mayor as minimum to 12 years and one day of reclusion
temporal as maximum. Pending appeal he applied for bail,
but the same was denied by the CA. Petitioners theory is
299
that, where the penalty imposed by the trial court is more
than six years but not more than 20 years and the
circumstances mentioned in the third paragraph of
Section 5 are absent, bail must be granted to an appellant
pending appeal. In an application for bail pending appeal
by an appellant sentenced to a penalty of imprisonment
for more than six years, does the discretionary nature of
the grant of bail pending appeal mean that bail should
automatically be granted absent any of the circumstances
mentioned in the third paragraph of Section 5, Rule 114 of
the Rules of Court?
A: In an application for bail pending appeal by an appellant
sentenced for more than six years, the discretionary nature
of the grant of bail pending appeal does not mean that bail
should automatically be granted absent any of the
circumstances mentioned in the third paragraph of Section
5, Rule 114 of the Rules of Court.
The third paragraph of Section 5 of Rule 114 applies to two
scenarios where the penalty imposed on the appellant
applying for bail is imprisonment exceeding 6 years. The
first scenario involves the absence of any of the
circumstances enumerated in the said paragraph deals with
the circumstances enumerated in the said paragraph NOT
being present. The second scenario contemplates the
existence of AT LEAST ONE of the said circumstances.
In the first situation, bail is a matter of SOUND JUDICIAL
DISCRETION. This means that, if none of the circumstances
rd
mentioned in the 3 paragraph of Sec. 5 Rule 114 is
present, the appellate court has the discretion to grant or
deny bail. An application for bail pending appeal may be
denied even if the bail-negating circumstances in the third
paragraph of Section 5, Rule 114 are absent.
On the other hand on the second situation, the appellate
court exercises a more stringent discretion, that is, to
carefully ascertain whether any of the enumerated
circumstances in fact exists. If it so determines, it has no
other option except to deny or revoke bail pending appeal.
Thus a finding that none off the said circumstances is
present will not automatically result in the grant of bail.
Such finding will simply authorize the court the less
stringent sound discretion approach (Leviste v. CA, GR No.
189122, March 17, 2010).
HOLD DEPARTURE ORDER AND BUREAU OF IMMIGRATION
WATCHLIST
Q: What is a Hold Departure Order?
A: A Hold Departure Order or HDO is an order issued by the
Secretary of Justice or the proper RTC commanding the
Commissioner of the Bureau of Immigration to prevent the
departure for abroad of Filipinos and/ or aliens named
therein by including them in the Bureaus Hold Departure
List (DOJ Department Order No. 17).
Note: The proper court may issue a hold departure order or direct
the Department of Foreign Affairs to cancel the passport of the
accused. This is a case of a valid restriction on a persons right to
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
travel so that he may be dealt with in accordance with the law
(Silverio v. Court of Appeals GR No. 94284, April 8, 1991).
Q: Who may issue a Hold Departure Order?
A: A hold departure order (HDO) may be issued either by:
1. The Regional Trial Court pursuant to SC Circular 39-97;
2. By the RTC sitting as a Family Court pursuant to A.M.
No. 02-11-12-SC; or
3. By the Department of Justice pursuant to Department
Order No. 41.
Note: SC Circular 39-97 dated June 19, 1997, "limits the authority
to issue hold departure orders to the Regional Trial Courts.
Considering that only the RTC is mentioned in said Circular and by
applying the rule on legal hermeneutics of express mention implied
exclusion, courts lower than the RTC such as the MeTC, MTC,
MTCC and MCTC has no authority to issue hold departure orders
in criminal cases (A.M. No. 99-9-141-MTCC Nov. 25, 1999).
Q: When may the RTC issue a Hold Departure Order?
A: Hold-Departure Orders shall be issued only in criminal
cases within the exclusive jurisdiction of the Regional Trial
Courts (SC Circular 39-97) upon proper motion of the party.
Q: What is the effect of the acquittal of the accused or
dismissal of the case to the hold departure order issued by
the RTC?
A: Whenever [a] the accused has been acquitted; or [b] the
case has been dismissed, the judgment of acquittal or the
order of dismissal shall include therein the cancellation of
the Hold-Departure Order issued. The Court concerned
shall furnish the Department of Foreign Affairs and the
Bureau of Immigration with a copy each of the judgment of
acquittal promulgated or the order of dismissal issued
within twenty-four [24] hours from the time of
promulgation/issuance and likewise through the fastest
available means of transmittal.
Q: In what cases may the DOJ issue a Hold Departure
Order?
A: The Secretary of Justice may issue an HDO under any of
the following instances:
1. Against an accused irrespective of nationality, in
criminal case falling within the jurisdiction of courts
below the RTCs;
Note: If the case against the accused is pending trial, the
application under oath of an interested party must be
supported by: a) certified true copy of the complaint or
information; and b) a certification from the Clerk of Court
concerned that the criminal case is pending.
If the accused has jumped bail or has become a fugitive of
justice, the application under oath of an interested party
must be supported by: a) a certified true copy of the
complaint or information; b) a certified true copy of the
warrant or order of arrest; and c) a certification from the
Clerk of Court concerned that the warrant or order of arrest
was returned unserved.
2. Against an alien whose presence is required either as a
defendant, respondent or a witness in a civil or labor
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
case pending litigation, or any case before an
administrative agency;
3. Against any person motu proprio, or upon the request
of the Head of a Department of the Government, head
of a constitutional body or commission; the Chief
Justice of the Supreme Court for the Judiciary; the
Senate President or the House Speaker for the
legislature; when the adverse party is the Government
or any of its agencies or instrumentalities, or in the
interest of national security, public safety or public
health. (DOJ Department Circular No. 41).
Note: An HDO issued by the DOJ shall be valid for 5 years from the
date of its issuance unless sooner terminated (Section 4, DOJ
Circular No. 41).
Q: When may an HDO issued by the DOJ be lifted or
cancelled?
A: The HDO may be lifted under any of the following
grounds:
1. When the validity of the HDO has already expired;
2. When the accused subject of the HDO has been
allowed to leave the country during the pendency of
the case, or has been acquitted of the charge, or the
case in which the warrant/ order of arrest has been
recalled; or
3. When the civil or labor case or case before an
administrative agency of the government wherein the
presence of the alien subject of the HDO/WLO has
been dismissed by the court or by appropriate
government agency, or the alien has been discharged
as a witness therein, or the alien has been allowed to
leave the country. (Section 5, DOJ Department Order
No. 41).
4. When the HDO/WLO was issued by the Secretary of
Justice either motu proprio or upon request of
government functionaries/ agencies, when the
adverse party is the Government or any of its agencies
or instrumentalities, or in the interest of national
security, public safety or public health, may be lifted or
recalled ANYTIME if the application is favorably
indorsed by the Government functionaries/ offices
who requested the issuance of the HDO/ WLO (Section
5, DOJ Department Circular No. 41).
Q: When may a Watch List Order (WLO) be issued?
A: The Secretary of Justice may issue a WLO under any of
the following circumstances:
1. Against the accused, irrespective of nationality in
criminal cases pending trial before the RTC or before
courts below the RTCs;
2. Against the respondent, irrespective of nationality in
criminal cases pending Preliminary Investigation,
Petition for Review or Motion for Reconsideration
BEFORE the DOJ or any of its provincial or city
prosecution offices;
3. The Secretary of Justice may likewise issue a WLO
against any person, either motu proprio or upon
request of any government agencies, including
commissions, task forces or similar entities created by
the Office of the President, pursuant to the Anti-
300
 CRIMINAL PROCEDURE
Trafficking of Persons Act of 2003 (RA 9208) and/ or
in connection with any investigation being conducted
by it, or in the interest of national security, public
safety or public health (Section 2, DOJ Department
Order 41).
Q: What is the validity of a WLO?
A: A WLO issued shall be valid for sixty (60) days unless
sooner terminated or extended, for a non-extendible
period of not more than sixty (60) days (Section 4, DOJ
Department Order No. 41).
Q: Where should permission to leave the country be filed?
A: Permission to leave the country should be filed in the
same court where the case is pending because they are in
the best position to judge the propriety and implication of
the same (Santiago v. Vasquez, G.R. No. 99289-90, January
27, 1993).
Q: What is the remedy against an HDO/ WLO?
A: A WLO may be attacked by filing a motion for
cancellation or by getting an Allow Departure Order from
the DOJ or by filing a Motion to Lift Hold Departure Order.
Q: What is an Allow Departure Order (ADO)?
A: An Allow Departure Order is a directive that allows the
traveler to leave the territorial jurisdiction of the
Philippines. This is issued upon application to the
Commissioner of Immigration and the appropriate
government agency (An outline of Philippine Immigration
and Citizenship Laws, Volume I, Atty. Rolando P. Ledesma,
p. 34).
Q: When is ADO issued?
A: Any person subject of an HDO/ WLO pursuant to
Department Order No. 41, who intends, for some
exceptional reasons, to leave the country may, upon
application under oath with the Secretary of Justice, be
issued an ADO upon submission of the following
requirements:
1. Affidavit stating clearly the purpose, inclusive period of
the intended travel, and undertaking to immediately
report to the DOJ upon return; and
2. Authority to travel or travel clearance from the court
or appropriate government office where the case upon
which the issued HDO/ WLO was based is pending or
from the investigating prosecutor in charge of the
subject case.
Q: What is the remedy of a person who is not the same
person whose name appears in the HDO/ WLO?
A: Any person who is prevented from leaving the country
because his/ her name appears to be the same as the one
that appears in the HDO/ WLO may upon application under
oath obtain a Certification to the effect that said person is
not the same person whose name appears in the issued
HDO/ WLO upon submission of the following requirements:
1. Affidavit of Denial;
2. Photocopy of the page of the passport bearing the
personal details;
3. Latest clearance from the National Bureau of
Investigation; and
4. Clearance from the court or appropriate government
agency when applicable.
Q: Is the right to bail available in extradition cases?
Discuss.
A: Yes.
1. While our extradition law does not provide for the
grant of bail to an extraditee, however, there is no
provision prohibiting him or her from filing a motion
for bail, a right to due process under the constitution.
2. While extradition is not a criminal proceeding, it still
entails a deprivation of liberty on the part of the
potential extraditee and furthermore, the purpose of
extradition is also the machinery of criminal law.
3. The Universal Declaration of Human Rights applies to
deportation cases, hence, there is no reason why it
cannot be invoked in extradition cases.
4. The main purpose of arrest and temporary detention
in extradition cases is to ensure that the potential
extraditee will not abscond.
5. Under the principle of pacta sunt servanda, the
Philippines must honor the Extradition Treaty it
entered into with other countries. Hence, as long as
the requirements are satisfactorily met, the extraditee
must not be deprived of his right to bail (Government
of Hong Kong Special Administrative Region v. Olalia,
G.R. No. 153675, Apr. 19, 2007).
Note: The required proof of evidence is clear and convincing
evidence and not preponderance of evidence nor proof beyond
reasonable doubt. The burden of proof lies with the extraditee.
(Government of Hong Kong Special Administrative Region v. Olalia,
G.R. No. 153675, Apr. 19, 2007)
Q: Is bail available in deportation proceedings?
A: Yes, however bail in deportation proceedings is WHOLLY
DISCRETIONARY.
RIGHTS OF THE ACCUSED
RULE 115
The rule enumerates the rights of a person accused of an
offense which are both constitutional as well as statutory,
save the right to appeal, which is purely statutory in
character.
RIGHTS OF ACCUSED AT THE TRIAL
Q: What are the rights of the accused at the trial?
A: The accused has the right:
1. to be presumed innocent;
2. to be informed of the nature and the cause of the
accusation against him;
3. to be present and defend in person and by counsel at
every stage of the proceeding;
301 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
4. to counsel;
5. to testify as a witness in his own behalf;
6. against self-incrimination;
7. to confront and cross examine witnesses against him
at trial;
8. to compulsory process;
9. to a speedy, impartial and public trial; and
10. to appeal on all cases allowed by law and in the
manner prescribed by law (Sec. 1, Rule 115).
Q: What is the meaning of the right of presumption of
innocence?
A: The right means that the presumption must be
overcome by evidence of guilt beyond reasonable doubt.
The burden lies on the prosecution to overcome such
presumption of innocence by presenting the quantum of
evidence required. Conviction should be based on the
strength of the prosecution and not on the weakness of the
defense. The significance of this is that accusation is not
synonymous with guilt. (People v. Angus, GR No. 178778,
August 3, 2010).
Q: What is reasonable doubt?
A: It is the doubt engendered by an investigation of the
whole proof and an inability, after such investigation, to let
the mind rest easy upon the certainty of guilt. Absolute
certainty is not demanded by law to convict of any criminal
charge but moral certainty is required as to every
proposition of proof requisite to constitute the offense
(Sec. 2, Rule 133).
Q: What is the equipoise rule?
A: Where the evidence of the parties in a criminal case is
evenly balanced, the constitutional presumption of
innocence should tilt in favor of the accused who must be
acquitted (People v. Erguiza, GR No. 171348, Nov. 26,
2008).
Q: What are the exceptions to the presumption of
innocence?
A:
1. In cases of self-defense, the person invoking self
defense is presumed guilty. In this case, a reverse trial
will be held.
2. The legislature may enact that when certain facts have
been proved, they shall be prima facie evidence of the
existence of guilt of the accused and shift the burden
of proof provided there be a rational connection
between the facts proved and the ultimate fact
presumed so that the inference of the one from proof
of the other is not an unreasonable and arbitrary
experience (People v. Mingoa, G.R. No. L-5371, Mar.
26, 1953).
Q: What is a reverse trial?
A: A reverse trial happens if the accused admits the killing
but claims self-defense. He must first establish the
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
elements of self-defense in order to overturn the
presumption that he was guilty of the offense.
Q: In a case of rape, the court ordered the accused to
present evidence ahead of the prosecution. Is the court
order correct? Why?
A: No, because it violated the right of the accused to be
presumed innocent and the right to due process. In fact, it
violated the order of the presentation of evidence. The
accused has the right not to take the witness stand (Albano
P. 1114 citing Alejandro v. Pepito)
Q: What is meant by the accuseds right to be informed?
A: The right requires that the information should state the
facts and circumstances constituting the crime charged in
terms sufficient to enable a person of common
understanding to know what offense is being charged.
Q: May the right to be informed be waived?
A: No, the right to be informed may not be waived. It is a
basic constitutional right of the accused to be informed of
the nature and cause of accusation against them.
Q: Noque was convicted for the crime of selling and
possessing methamphetamine hydrochloride. On appeal,
Noque claimed that his conviction violated his right to be
informed of the nature and cause of the accusations
against him since the charges in the Information are for
selling and possessing methamphetamine hydrochloride
but what was established and proven was the sale and
possession of ephedrine. Is the appellants right to be
informed of the nature and cause of accusation violated?
A: No. The Information filed was for the crimes of illegal
sale and illegal possession of regulated drugs. Ephedrine
has been classified as a regulated drug; it is classified as the
raw material of shabu. Under Sections 4 and 5, Rule 120 of
the Rules of Court, 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. At any rate, a minor variance
between the information and the evidence does not alter
the nature of the offense, nor does it determine or qualify
the crime or penalty, so that even if a discrepancy exists,
this cannot be pleaded as a ground for acquittal (People v.
Noque GR No. 175319, January 15, 2010).
Q: In a criminal proceeding, when is the presence of the
accused required?
A:
1. During arraignment (Sec.1b, Rule 116);
2. Promulgation of judgment except when the conviction
is for a light offense, in which case, it may be
pronounced in the presence of his counsel or a
representative (Sec.6 Rule 120); and
3. When ordered by the court for purposes of
identification (Sec.1, Rule 115)
302
 CRIMINAL PROCEDURE
Note: Such requirement has no application to the proceedings or
to the entry and promulgation of the judgments before the CA and
SC. The defendant need not be present during the hearing of the
appeal (Sec. 9, Rule 124).
Q: May the right to be present during the trial be waived?
A: Yes, by:
1. a waiver pursuant to the stipulation set forth in his
bail;
2. absence of the accused without justifiable cause at the
trial of which he had notice shall be considered a
waiver of his right to be present thereat; and
3. if the accused jumps bail, such shall be an automatic
waiver of the right to be present on all subsequent
trial dates until custody over him is regained (Sec. 1(c),
Rule 115).
A: GR: The right covers only testimonial compulsion and not
the compulsion to produce real and physical evidence using
the body of the accused (Schmerber v. California, 384 US
757).
XPN: Immunity statutes such as:
1. forfeiture of illegally obtained wealth (R.A. 1379)
2. bribery and graft cases (R.A. 749) (Herrera, Vol.
IV, p. 563, 2007 ed.).
Note: The right against self-incrimination is available not only in
criminal cases but also in government proceedings, civil, and
administrative proceedings where there is a penal sanction
involved.
Q: What is the purpose of the right against self-
incrimination?

Note: The accused may be compelled to be present despite waiver A: The privilege is intended to prevent the State, with all its
for purposes of identification, but if the accused manifests in open coercive powers, from extracting from the suspect
court that he is indeed the accused, such shall also be considered a testimony that may convict him and to avoid a person
waiver thereof.
subject to such compulsion to perjure himself for his own
protection (People v. Bersonia, 422 SCRA 210).
Q: What are the effects of waiver of the right to appear by
the accused?
Q: Is the right of the accused against self-incrimination
waivable?
A:
1. It is also a waiver to present evidence;
A: Yes. It may be waived by the failure of the accused to
2. Prosecution can present evidence despite the absence
invoke the privilege after the incriminating question is
of the accused; and
asked and before his answer.
3. The court can decide even without accuseds evidence.
Q: Does the right against self-incrimination include the
Q: As counsel of an accused charged with homicide, you
furnishing of a signature specimen?
are convinced that he can be utilized as a State witness.
What procedure will you take? Explain. (2006 Bar
A: Yes, because writing is not a purely mechanical act for it
Question)
involves the application of intelligence and attention. If
such person is asked whether the writing in a document is
A: As counsel for the accused, I will advise my client to ask
his or not, and he says it is not, he is deemed to have
for a reinvestigation and convince the prosecutor for him to
waived his right. On the other hand, if the accused simply
move for the discharge of my client as a State witness or
refused to answer the question inquiring about the
the accused can apply as a State witness with the
handwriting, no waiver of the right took place (Beltran v.
Department of Justice pursuant to R.A. 6981, the Witness
Samson G.R. No. 32025, Sept. 23, 1929).
Protection, Security and Benefit Act. The right to prosecute
Q: What does the right of the accused to confront and
vests the prosecutor with a wide range of discretion,
cross-examine a witness against him contemplate?
including what and whom to charge.
A: Confrontation is the act of setting a witness face-to-face
Q: What is the effect if the accused refuses to testify?
with the accused so that the latter may make any objection
he has to the witness which must take place in the court
A: GR: The silence of the accused should not be used
having jurisdiction to permit the privilege of cross-
against him.
examination. In addition, the accused is entitled to have
compulsory process issued to secure the attendance of
XPN:
witness and production of other evidence in his behalf [Sec.
1. When the prosecution has already established a
1 (g), Rule 115].
prima facie case, the accused must present proof
to overturn the evidence; and Note: The main purpose of this right to confrontation is to secure
2. If the defense of the accused is alibi and he does the opportunity of cross-examination and the secondary purpose is
not testify, the inference is that the alibi is not to enable the judge to observe the demeanor of witness.
believable.

Q: What is the scope of the right against self- Q: Is the right to cross-examination waivable?
incrimination?
A: Yes, the right is a personal one which may be waived
expressly or impliedly by conduct amounting to a

303 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
renunciation of the right of cross-examination. Thus, where
a party has had the opportunity to cross-examine a witness
but failed to avail himself of it, he necessarily forfeits the
right to cross-examine and the testimony given on direct
examination of the witness will be received or allowed to
remain in the record (Equitable PCI Banking Corporation v.
RCBC Capital Corporation, GR No. 182248, December 18,
2008; People v. Abatayo, 433 SCRA 562).
Q: Does the right to confrontation cover witnesses who
did not appear or was not presented at the trial?
A: No, the right to confrontation applies only to witnesses
who appear before the court; the witness must be present
for the right to confrontation to attach. What is important
is that the accused is given the right to cross-examine the
witness presented. (People v. Honrada, G.R. Nos. 112178-
79, Apr. 21, 1995)
Q: What is the rule with respect to the testimony of a
witness who dies or becomes unavailable?
A: If the other party had the opportunity to cross-examine
the witness before he died or became unavailable, the
testimony may be used as evidence. However, if the other
party did not have the opportunity to cross-examine before
the death or unavailability of the witness, the testimony
will have no probative value.
Q: What does the right to compulsory process mean?
A: The accused may move for the issuance of subpoena ad
testificandum or subpoena duces tecum in his behalf in
order to compel the attendance of witnesses and the
production of other evidence.
Note: If a witness refuses to testify when he is required, the Court
should order the witness to give bail or order his arrest, if
necessary. Failure to obey a subpoena amounts to contempt of
court.
Q: What are the facts to be considered to determine if the
right to speedy trial has been violated?
A:
1. Length of the delay;
2. Reason for the delay;
3. The accuseds assertion or non assertion of the right;
and
4. Prejudice to the accused resulting from the delay.
(Ombudsman v. Jurado, G.R. No. 154155, Aug. 6, 2008;
Tan v. People, G.R. No. 173637, April 21, 2009)
Note: There is no violation of the right where the delay is
imputable to the accused.
Q: What are the remedies available to the accused when
his right to speedy trial is violated?
A:
1. Ask for the trial of the case;
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
2. Unreasonable delay of the trial of a criminal case as to
make the detention of defendant illegal gives ground
for habeas corpus as a remedy for obtaining release;
3. Mandamus proceeding to compel the dismissal of the
information; or
4. Ask for the trial of the case and then move to dismiss
(Gandicela v. Lutero, G.R. No. L-4069, Mar. 5, 1951).
Q: Is the rule that the trial should be public absolute?
A: No. The court may bar the public in certain cases, such as
when the evidence to be presented may be offensive to
decency or public morals; or in rape cases, where the
purpose of some persons in attending is merely to ogle at
the parties.
The judge may, motu proprio, exclude the public from the
courtroom if the evidence to be produced during the trial is
offensive to decency or public morals. He may also, on
motion of the accused, exclude the public from the trial
except court personnel and the counsel of the parties. (Sec.
21, Rule 119)
Q: What is the rule regarding trial by publicity?
A: The right of the accused to a fair trial is not incompatible
with free press. Pervasive publicity is not per se prejudicial
to the right to a fair trial. To warrant the finding of
prejudicial publicity, there must be allegations and proof
that judges have been unduly influenced, not simply that
they might be due to the barrage of publicity (People v.
Teehankee, G.R. Nos. 111206-08, Oct. 6, 1995).
Q: What is the nature of the right to appeal?
A: The right to appeal from a judgment of conviction is
fundamentally of statutory origin. It is not a matter of
absolute right independently of constitutional or statutory
provision allowing such appeal.
Q: Can the right to appeal be waived?
A: GR: The right to appeal can be waived expressly or
impliedly.
XPN: Where the death penalty is imposed, such right
cannot be waived as the review of the judgment by the CA
is automatic and mandatory pursuant to Administrative
Circular No. 20-2005 which is an order directing regional
trial courts to directly forward to the Court of Appeals
records of criminal cases which are subject of automatic
review or regular appeals.
RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION
Q: What is custodial investigation?
A: It is the questioning initiated by law enforcement
authorities after a person is taken into custody or otherwise
deprived of his freedom of action in any significant manner.
It is only after the investigation ceases to be a general
inquiry into an unsolved crime and begins to focus on a
particular suspect, the suspect is taken into custody, and
304
 CRIMINAL PROCEDURE
the police carries out a process of interrogations that lend appointed by the court upon petition of the person
itself to eliciting incriminating statements, that the rule arrested or one acting in his behalf;
begins to operate (Aquino v. Paiste, G.R. No. 147782, June 5. That whether or not the person arrested has a lawyer,
25, 2008). he must be informed that no custodial investigation in
any form shall be conducted except in the presence of
Note: Sec. 2(f) of RA 7438 expanded the meaning of custodial his counsel or after a valid waiver has been made;
investigation to include the practice of issuing an invitation to a 6. The person arrested must be informed that, at any
person who is investigated in connection with an offense he is time, he has the right to communicate or confer by the
suspected to have committed, without prejudice to the liability of
most expedient means - telephone, radio, letter or
the inviting officer for any violation of law.
messenger - with his lawyer (either retained or
appointed), any member of his immediate family, or
Q: When do the rights in custodial investigation attach?
any medical doctor, priest or minister chosen by him
or by any one from his immediate family or by his
A: The rights begin to operate at once as soon as the
counsel, or be visited by/confer with duly accredited
investigation ceases to be a general inquiry into an
national or international non-government
unsolved crime and direction is then aimed upon a
organization. It shall be the responsibility of the officer
particular suspect who has been taken into custody and to
to ensure that this is accomplished;
whom the police would then direct interrogatory question
7. He must be informed that he has the right to waive
which tend to elicit incriminating statements (People v. Jose
any of said rights provided it is made voluntarily,
Ting LanUy, G.R. No. 157399, Nov. 17, 2005). It includes the
knowingly and intelligently and ensure that he
practice of issuing an invitation to a person who is
understood the same;
investigated in connection with an offense he is suspected
8. In addition, if the person arrested waives his right to a
to have committed.
lawyer, he must be informed that it must be done in
writing AND in the presence of counsel, otherwise, he
Q: What are the requisites for a valid custodial
must be warned that the waiver is void even if he insist
investigation report?
on his waiver and chooses to speak;
9. That the person arrested must be informed that he
A: RA No. 7438 provides for the following requisites for a
may indicate in any manner at any time or stage of the
valid custodial investigation report:
process that he does not wish to be questioned with
1. The report shall be reduced to writing by the
warning that once he makes such indication, the police
investigating officer;
may not interrogate him if the same had not yet
2. If the person arrested or detained does not know how
commenced, or the interrogation must cease if it has
to read or write, it shall be read and adequately
already begun;
explained to him by his counsel or by the assisting
10. The person arrested must be informed that his initial
counsel in the language or dialect known to such
waiver of his right to remain silent, the right to counsel
arrested or detained person. This is to be done before
or any of his rights does not bar him from invoking it at
the report is signed. If this procedure is not done, the
any time during the process, regardless of whether he
investigation report shall be null and void and of no
may have answered some questions or volunteered
effect whatsoever.
some statements;
11. He must also be informed that any statement or
Q: What are the rights of persons under Custodial
evidence, as the case may be, obtained in violation of
Investigation?
any of the foregoing, whether inculpatory or
exculpatory, in whole or in part, shall be inadmissible
A:
in evidence (People v. Mahinay, G.R. No. 122485, Feb.
1. The person arrested, detained, invited or under
1, 1999).
custodial investigation must be informed in a language
known to and understood by him of the reason for the
Q: What is the importance of the right to counsel in
arrest and he must be shown the warrant of arrest, if
custodial investigation?
any; every other warnings, information or
communication must be in a language known to and
A: The importance of the right to counsel is so vital that
understood by said person;
under existing law, in the absence of any lawyer, no
2. He must be warned that he has a right to remain silent
custodial investigation shall be conducted and the
and that any statement he makes may be used as
suspected person can only be detained by the investigating
evidence against him;
officer in accordance with the provisions of Art. 125 of the
3. He must be informed that he has the right to be
Revised Penal Code (Section 3(c), RA 7438).
assisted at all times and have the presence of an
independent and competent lawyer, preferably of his
Note: The purpose of providing counsel to a person under
own choice; custodial investigation is to curb the uncivilized practice of
4. He must be informed that if he has no lawyer or extracting a confession (People v. Duenas, Jr. 426 SCRA 666).
cannot afford the services of a lawyer, one will be
provided for him; and that a lawyer may also be
engaged by any person in his behalf, or may be Q: Distinguish the right to counsel during trial from right
to counsel during custodial investigation?

305 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Right to counsel during trial means the right of the
accused to an effective counsel. Counsel is not to prevent
the accused from confessing but to defend the accused.
On the other hand, right to counsel during custodial
investigation requires the presence of competent and
independent counsel who is preferably the choice of the
accused. The reason for such right is that in custodial
investigation, there is a danger that confessions can be
exacted against the will of the accused since it is not done
in public.
Q: May the right to counsel during trial be waived?
A: Yes. It can be waived when the accused voluntarily
submits himself to the jurisdiction of the court and
proceeds with his defense. The accused may defend himself
in person only if the court is convinced that he can properly
protect his rights even without the assistance of counsel.
The defendant cannot raise the question of his right to have
an attorney for the first time on appeal.
This right may be waived but to insure that the waiver is
voluntary and intelligent, the waiver must be in writing and
in the presence of the counsel of the accused (People v. Del
Castillo, 439 SCRA 601). The right to a competent and
independent counsel is one of the rights of the accused
guaranteed under Sec. 12(1) of Art. III of the Philippine
Constitution.
Q: May an accused defend himself without the assistance
of counsel?
A: Yes, but only when it sufficiently appears that he can
properly protect his right without the assistance of counsel
[Sec. 1(c), Rule 115].
Q: Is the statement signed by the accused admissible if
during the investigation, the assisting lawyer leaves, or
comes and goes?
A: No. It is inadmissible because the lawyer should assist his
client from the time the confessant answers the first
question asked by the investigating officer until the signing
of the extrajudicial confession (People v. Morial, G.R. No.
129295, Aug. 15, 2001).
Note: The right to counsel covers the period beginning from
custodial investigation until rendition of judgment and even on
appeal (People v. Serzo, Jr., G.R. No. 118435, June 20, 1997).
Q: An affidavit was made by the accused without the
presence of counsel during preliminary investigation,
admitting the commission of a crime. When presented
during trial as evidence, the accused objected claiming
that there was a violation of his right to a competent and
independent counsel. Is the accused correct?
A: No. The constitutional right to a competent and
independent counsel exists only in custodial interrogations,
or in-custody interrogation of accused persons. A
preliminary investigation is an inquiry or a proceeding to
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
determine whether there is sufficient ground to engender a
well-founded belief that a crime has been committed, and
that the respondent is probably guilty thereof and should
be held for trial. Evidently, a person undergoing preliminary
investigation before the public prosecutor cannot be
considered as being under custodial investigation (People v.
Ayson, G.R. No. L-28508-9, July 7, 1989).
Q: What are the requisites for the validity of an
extrajudicial confession made by a person arrested,
detained or under custodial investigation?
A: For an extrajudicial confession to be valid the following
requisites must concur:
1. It shall be in writing and signed by the person arrested,
detained or under custodial investigation;
2. It must be signed in the presence of his counsel or in
the latters absence, upon a valid waiver and;
3. In the presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor, the
municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him. (Sec. 2(d), RA
7438)
Q: Two suspects during police investigation orally waived
their right to remain silent and to counsel. They freely
answered under oath the questions asked by the police
desk officer. They later signed their sworn statements
before the police captain who is also a lawyer. They both
admitted their guilt. In due course, proper charges were
filed by the City Prosecutor against both arrestees before
the MM RTC. May the written statements signed and
sworn by them be admitted by the trial court as evidence
for the prosecution? (2004 Bar Question)
A: No. It will not be admitted in evidence because they
were not assisted by counsel. Even if the police captain
before whom they signed the statements was a lawyer, he
cannot be considered as an independent counsel. Waiver of
the right to a lawyer must be done in writing and in the
presence of an independent and competent counsel.
ARRAIGNMENT AND PLEA
RULE 116
Q: What is arraignment?
A: It is the formal mode of implementing the constitutional
right of the accused to be informed of the nature of the
accusation against him. (People v. Pangilinan, 518 SCRA
358, March 14, 2007).
Arraignment is the proceeding in a criminal case, whose
object is to fix the identity of the accused, to inform him of
the charge and to give him an opportunity to plead, or to
obtain from the accused his answer, in other words, his
plea to the information.
Note: The purpose of arraignment is, thus, to apprise the accused
of the possible loss of freedom, even of his life, depending on the
nature of the crime imputed to him, or at the very least to inform
him of why the prosecuting arm of the State is mobilized against
him. (Borja v. Mendoza, 77 SCRA 422).
306
 CRIMINAL PROCEDURE
Q: Is right to counsel de parte during arraignment and trial
absolute?
A: No. While the right to be represented by counsel is
immutable, his option to secure the services of counsel de
parte, however, is not. The court may restrict the accuseds
option to retain a counsel de parte if the accused insists on
an attorney he cannot afford, or chooses a counsel who is
not a member of the bar, or when the attorney declines to
represent the accused for a valid reason, such as conflict of
interests (People v. Servo, G.R. No. 119217, Jan. 19, 2000).
Q: Who may be appointed as counsel de officio?
A:
1. Members of the bar with good standing;
2. Has the ability, experience and competence to defend
the accused; and
3. In localities where such members of the bar are not
available, the court may appoint any person who is a
resident of such province with good repute for probity
and ability, to defend the accused (Sec. 7, Rule 116).
Note: Whenever a counsel de officio is appointed by the court, he
shall be given reasonable time to consult with the accused as to his
plea before proceeding with arraignment (Sec. 8, Rule 116).
Q: What are the duties of a counsel de officio where the
accused is imprisoned?
A:
1. Promptly undertake to obtain the presence of the
prisoner for trial, or cause a notice to be served on the
person having custody of the prisoner requiring such
person to so advise the prisoner of his right to demand
trial.
2. Upon receipt of the notice, the person having custody
of the prisoner shall promptly advise the prisoner of
the charge and of his right to demand trial. If at any
time thereafter the prisoner informs his custodian that
he demands such trial, the latter shall cause notice to
that effect to be sent promptly to the public attorney.
3. Upon receipt of such notice, the public attorney shall
promptly seek to obtain the presence of the prisoner
for trial.
Note: Public Attorneys referred to in this section are
those attorneys of the Public Attorneys Office of the
Department of Justice who are assisting accused who
are not financially capable to have a counsel of their
own. These public attorneys enter their appearance in
behalf of the accused upon his request or that of his
relative or upon being appointed as counsel de officio
by the court.
4. When the person having custody of the prisoner
receives from the attorney a properly supported
request for the availability of the prisoner for purposes
of the trial, the prisoner shall be made available
accordingly (Sec. 7, Rule 119).
Q: What are the options of the accused before
arraignment and plea?
A: Before arraignment and plea, the accused may avail of
any of the following:
a. Bill of Particulars- The accused may, before
arraignment, move for a bill of particulars to
enable him to properly plead and prepare for
trial.
Note: The motion shall:
a. alleged defects of the complaint or information, and
b. details desired. (Sec. 9, Rule 116)
b. Suspension of arraignment- Upon motion, the
proper party may ask for the suspension of the
arraignment in the following cases:
1. That the accused appears to be suffering
from an unsound mental condition which
effectively renders him unable to fully
understand the charge against him and to
plead intelligently thereto. In such case, the
court shall order his mental examination
and, if necessary his confinement for such
purpose. Aside from suspension of the
arraignment, the trial court is mandated to
order the confinement of an accused who is
mentally unsound at the time of the trial in
one of the hospitals or asylums established
for persons thus afflicted (People v. Mala,
411 SCRA 327);
2. That there exists a prejudicial question; and
3. There is a petition for review of the
resolution of the prosecutor which is
pending at either the Department of Justice,
or of the Office of the President; Provided,
That The period of suspension shall not
exceed sixty (60) days counted from the
filing of the petition with the reviewing
office. (Sec. 11, Rule 116)
c. Motion to Quash At any time before entering
his plea, the accused may move to quash the
complaint or information on any of the grounds
under Section 3, Rule 117 in relation to Section 1
of the same rule;
d. Challenge the validity of the arrest or legality of
the warrant issued or assail the regularity or
question the absence of preliminary investigation
of the charge otherwise the objection is deemed
waived. An objection against an arrest or the
procedure in the acquisition by the court of
jurisdiction over the person of an accused should
be made at or before the arraignment, otherwise
the objection is deemed waived (People v.
Lozada, 406 SCRA 494).
Q: How may the accused ask for the production or
inspection of material evidence in possession of the
prosecution?
307 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Upon motion of the accused, showing good cause and
with notice to the parties (Sec. 10, Rule 116).
Note: The court may order the prosecution to produce and permit
the inspection and copying or photographing of such material
evidence to prevent surprise, suppression, or alteration thereof
(Sec. 10, Rule 116).
Q: What are the pieces of evidence that may be subject of
the inspection or production?
A: Those which constitute or contain evidence material to
any matter involved in the case and which are in the
possession or under control of the prosecution, police or
other law investigating agencies including any:
1. written statement given by the complainant and other
witnesses in any investigation of the offense,
conducted by the prosecution or any investigating
officer; and
2. designated documents, papers, books, accounts,
letters, photographs, object or tangible things
provided it is not otherwise privileged (Sec. 10, Rule
116)
ARRAIGNMENT AND PLEA, HOW MADE
Q: What is a plea?
A: It pertains to the matter which the accused, on his
arraignment, alleges in answer to the charge against him.
Q: How is arraignment made?
A: Arraignment is made:
1. In open court where the complaint or information
has been filed or assigned for trial;
2. By the judge or clerk of court;
3. By furnishing the accused with a copy of the complaint
or information;
4. Reading it in a language or dialect known to the
accused; (People v. Albert 251 SCRA 136).
5. Asking accused whether he pleads guilty or not guilty
(Sec.1(a), Rule 116);
6. Both arraignment and plea shall be made of record
but failure to enter of record shall not affect the
validity of the proceedings (Sec. 1(b), Rule 116).
Note: The accused must be arraigned before the court where the
complaint or information was filed or assigned for trial (Sec. 1(a)).
Q: When is arraignment made?
A: GR: Under the Rules of Court, the arraignment shall be
made within thirty (30) days from the date the court
acquires jurisdiction over the person of the accused.
(Section 1(g), Rule 116).
XPNs:
1. When an accused is under preventive detention,
his case should be raffled within 3 days from filing
and accused shall be arraigned within 10 days
from receipt by the judge of the records of the
case (RA 8493 Speedy Trial Act)
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
2. Where the complainant is about to depart from
the Philippines with no definite date of return,
the accused should be arraigned without delay.
3. Cases under RA 7610 (Child Abuse Act), the trial
shall be commenced within 3 days from
arraignment.
4. Cases under the Dangerous Drugs Act.
5. Cases under SC AO 104-96 ie., heinous crimes,
violations of the Intellectual Property Rights law,
these cases must be tried continuously until
terminated within 60 days from commencement
of the trial and to be decided within 30 days from
the submission of the case.
Q: Is the presence of the accused required during
arraignment?
A: Yes. The accused must be present at the arraignment
and personally enter his plea (Section 1b, Rule 116).
Note: Both arraignment and plea shall be made in record but
failure to do so shall not affect the validity of the proceedings [Sec.
1b, Rule 116].
Q: Is the presence of the offended party required in
arraignment?
A: The private offended party shall be required to appear in
the arraignment for the following purposes:
a. Plea bargaining;
b. Determination of civil liability; and
c. Other matters requiring his presence (Sec. 1(f), Rule
116).
Note: In case the offended party fails to appear despite due notice,
the court may allow the accused to enter a plea of guilty to a lesser
offense which is necessarily included in the offense charged with
the conformity of the trial prosecutor alone (Section 1(f), Rule 116).
Q: What are the different rules on arraignment?
A:
1. Trial in absentia may be conducted only after valid
arraignment.
2. Accused must personally appear during arraignment
and enter his plea (counsel cannot enter plea for
accused)
3. Accused is presumed to have been validly arraigned in
the absence of proof to the contrary.
4. Generally, judgment is void if accused has not been
validly arraigned.
6. If accused went into trial without being arraigned,
subsequent arraignment will cure the error provided
that the accused was able to present evidence and
cross examine the witnesses of the prosecution during
trial.
WHEN SHOULD PLEA OF NOT GUILTY BE ENTERED
Q: When should a plea of NOT guilty be entered?
308
 CRIMINAL PROCEDURE
c. The lesser offense is necessarily included in the
A: offense charged; and
1. When the accused so pleaded; d. The plea must have the consent of the prosecutor
2. When he refuses to plead (Sec. 1c); and the offended party (Sec. 2, Rule 116)
3. Where in admitting the act charged he sets up matters
of defense or with lawful justification; Note: No amendment of complaint or information is
4. When he enters a conditional plea of guilty (Sec. 1c); necessary (Sec. 2). A conviction under this plea shall be
5. Where after a plea of guilty but presents exculpatory equivalent to a conviction of the offense charged for
purposes of double jeopardy (People v. Magat, GR No.
circumstances, his plea shall be deemed withdrawn
130026, May 31, 2000).
and a plea of not guilty shall be entered for him (Sec.
1d);
3. After prosecution rests allowed only when the
6. When the plea is indefinite or ambiguous.
prosecution does not have sufficient evidence to
establish guilt for the crime charged.
Q: X was charged with murder attended by treachery and
evident premeditation. During arraignment, X, assisted by
Q: Luis was charged with homicide. Upon arraignment,
counsel, pleaded guilty with qualification hindi ko
however, the parties, with the acquiescence of the Public
sinadya patayin. Xs counsel assured the court that he
Prosecutor and the consent of the offended party, entered
fully apprised X of the information, the nature of the
into plea bargaining where it was agreed that the accused
charge, and the consequences of his plea. X even waived
would plead guilty to the lesser offense of attempted
the prosecutions presentation of evidence against him.
homicide instead of consummated homicide as originally
The court convicted X of murder. Was the plea of guilty
charged in the information. Consequently, Judge Berde
entered valid? (1996 Bar Examination)
found Luis guilty beyond reasonable doubt of the lesser
crime of attempted homicide in accordance with the plea
A: No, the plea of guilty by X with the qualification Hindi
bargaining agreement. Is Judge Berde correct?
ko sinadya patayin was a conditional plea of guilty and
hence a plea of not guilty should be entered for him. (Sec.
A: No. One accused of homicide cannot be allowed to plead
1-C of Rule 116). Also, when the accused pleads guilty to a
guilty to attempted or frustrated homicide, although the
capital offense, the court shall conduct a searching inquiry
lesser offense is necessarily included in the offense
into the voluntariness and full comprehension of the
charged. The reason is that the crime of homicide as
consequences of his plea. The court should not rely on the
defined in Art. 249 of the Revised Penal Code necessarily
assurance of the counsel of the accused for this purpose
produces death; attempted homicide does not. (Amatan v.
(Sec. 3 of Rule 116).
Aujero, A.M. No. RTJ-93-956, Sept. 27, 1995)
WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A
Q: D was charged with theft of an article worth
LESSER OFFENSE
P15,000.00. Upon being arraigned he pleaded not guilty to
the offense charged. Thereafter, before trial commenced,
Q: What is plea bargaining?
he asked the court to allow him to change his plea of not
guilty to a plea of guilty but only to estafa involving P5,
A: Plea bargaining in criminal cases is a process whereby
000.00. Can the court allow D to change his plea? Why?
the accused and the prosecution work a mutually
(2002 Bar Examination)
satisfactory disposition of the case subject to court
approval. It usually involves the defendants pleading guilty
A: No, because a plea of guilty to a lesser offense may be
to a lesser offense or to only one or some of the counts of a
allowed if the lesser offense is necessarily included in the
multi- count indictment in return for a lighter sentence
offense charged. (Rule 116, Sec. 2). Estafa involving P5,
than that for the graver charge (Daan v. Sandiganbayan GR
000.00 is not necessarily included in theft of an article
No. 163972-77, March 28, 2008).
worth P15, 000.00.
Q: May the accused enter a plea of guilty to a lower
ACCUSED PLEADS GUILTY TO CAPITAL OFFENSE, WHAT
offense?
THE COURT SHOULD DO
A: Yes:
Q: What is the effect of a plea of guilty?
1. During arraignment
a. If the offended party is present, the latter must
A: GR: A plea of guilty admits the truth of all material facts
consent with the prosecutor to the plea; and
alleged in the information, including all the aggravating
b. That the lesser offense is necessarily included in
circumstance mentioned therein (People v. Koloh Pohong,
the offense charged.
GR No. L-32332, August 15, 1973)
2. After arraignment but before trial provided the Note: A plea of guilty is a judicial confession of guilt (People v,
following requisites are present: Comendador, GR No. L-38000, September 19, 1980). It is an
a. The plea of guilty is withdrawn; unconditional plea of guilt which admits of the crime and all
b. The plea of not guilty and the withdrawal of the the attendant circumstances alleged in the information
previous guilty plea shall be made before trial; including the allegations of conspiracy and warrants
judgment of conviction without need of further evidence.

309 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
XPNs:
1. Where the plea of guilt was compelled by
violence or intimidation;
2. When the accused did not fully understand the
meaning and consequences of his plea;
3. Where the information is insufficient to sustain
conviction of the offense charged;
4. Where the information does not charge an
offense, any conviction thereunder being void;
5. Where the court has no jurisdiction.
XPN to the XPN: If what the accused would prove is an
exempting circumstance, it would amount to a withdrawal
of his plea of not guilty.
Note: For non-capital offenses, the reception of evidence is merely
discretionary on the part of the court (Sec. 4). If the information or
complaint is sufficient for the judge to render judgment on a non-
capital offense, he may do so. But if the case involves a capital
offense, the reception of evidence to prove the guilt and degree of
culpability of the accused is mandatory in which case, the accused
may present evidence in his behalf and the court shall conduct a
searching inquiry into the voluntariness and full comprehension of
the consequences of his plea (Sec. 3, Rule 116).
Q: What is the duty of the court after the accused pleads
guilty to a capital offense?
A: When the accused pleads guilty to a capital offense, the
court shall:
1. Conduct a searching inquiry into the:
a. Voluntariness of the plea, and
b. Full comprehension of the consequences of the
plea;
2. Require the prosecution to prove guilt and the precise
degree of his culpability;
3. Ask the accused if he desires to present evidence in his
behalf and allow him to do so if he desires. However,
the defendant after pleading guilty may not present
evidence as would exonerate him completely from
criminal liability such as proof of self-defense.
Note: This procedure is mandatory, and a judge who fails to
observe it commits grave abuse of discretion. The reason for this
strictness is to assure that the State makes no mistake in taking life
except the life of the guilty. (People v. Diaz, 254 SCRA 735).
Q: Why is the presentation of evidence required after the
plea of guilty?
A: To preclude any room for reasonable doubt in the mind
of either the trial court or of the Supreme Court, on review,
as to the possibility that there might have been
misunderstanding on the part of the accused as to the
nature of the charges to which he pleaded guilty; and to
ascertain the circumstances attendant to the commission of
the crime which justify or require the exercise of greater or
lesser degree of severity in the imposition of prescribed
penalties (People v. Basa, 51 SCRA 317).
Q: May the plea of guilty be collaterally attacked?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: No. A plea of guilty entered by one who is fully aware of
the direct consequences, including the actual value of any
commitments made to him by court, the prosecutor or his
own counsel must stand.
Note: It is only when the consensual character of the plea is called
into question that the validity of a guilty plea may be impaired.
SEARCHING INQUIRY
Q: What are the objectives of a searching inquiry?
A: To determine the voluntariness of the plea and whether
the accused understood fully the consequence of his plea.
Q: What is the meaning of the duty of the judge to
conduct a searching inquiry?
A: In all cases, the judge must convince himself that:
1. The accused is entering the plea voluntarily and
intelligently;
2. There exists a rational basis for finding of guilt based
on accuseds testimony
3. Inform the accused of the exact length of
imprisonment and the certainty that he will serve it in
a national penitentiary
Note: The case of People v. Pastor (379 SCRA 181) provided the
following as guidelines on how judges must conduct a searching
inquiry:
1. Ascertain from the accused himself (1) how he was
brought into custody of the law; (2) whether he had the
assistance of a competent counsel during the custodial
and preliminary investigations; and (3) under what
conditions he was detained and interrogated during the
investigations.
2. Ask the defense counsel a series of questions as to
whether he had conferred with, and completely
explained to, the accused the meaning and
consequences of a plea of guilty.
3. Elicit information about the personality profile of the
accused.
4. Inform the accused of the exact length of imprisonment
or nature of the penalty under the law and the certainty
that he will serve such sentence.
5. Inquire if the accused knows the crime with which he is
charged and fully explain to him the elements of the
crime.
6. All questions posed to the accused should be in a
language known and understood by the latter.
7. The trial judge must satisfy himself that the accused is
truly guilty.
Q: Crisanto is charged with murder. At his arraignment the
prosecution witnesses appeared in court together with
the heirs of the victim. Realizing the gravity of the offense
and the number of witnesses against him Crisanto
consulted his counsel de officio who explained to him the
nature of the charge and the consequences of his plea.
Crisanto then manifested his readiness for arraignment.
The information was read to him in a language he clearly
understood after which he pleaded guilty. To be sure, the
judge forthwith asked him if he indeed fully understood
the implications of his plea and Crisanto readily and
without hesitation answered in the affirmative. The judge,
fully convinced that the plea of the accused was made
310
 CRIMINAL PROCEDURE
with the latters full knowledge of the meaning and
consequences of his plea, then pronounced sentence on
the accused.
1. Comment on the action of the judge. Explain.
2. Suppose Crisanto with the assistance of counsel waives
the presentation of evidence by the prosecution saying
that, after all, he has already entered his plea, may the
court insist on the presentation of the evidence for the
prosecution? Explain.
3. Suppose upon plea bargaining Crisanto decides to plead
guilty to the lesser offense of homicide, may the court
still require presentation of evidence? Explain.
4. After the information was read to Crisanto upon
arraignment and he pleaded guilty to the charge but the
facts did not sufficiently constitute an offense, did his
plea of guilt which has already been entered in the
records, have the effect of supplying what was not
alleged in the information to complete the elements of
the offense to justify his conviction? Explain. (1995 Bar
Examination)
A:
1. The judge erred in pronouncing sentence on the
accused without previously conducting a searching
inquiry into the voluntariness and full comprehension
of the consequences of the plea of guilty and requiring
the prosecution to prove the guilt and the precise
degree of culpability. (Sec. 3, Rule 116)
2. Yes, in accordance with the above rule
3. Although Crisanto pleads guilty to a non-capital
offense the court may still require evidence to
determine the penalty to be imposed. (Sec. 4, Rule
116).
4. No, his plea of guilty did not have the effect of
supplying what was not alleged in the information to
complete the elements of the offense to justify his
conviction. His plea merely admits the truth of the
facts alleged in the information.
Q: Charged with teh crime of murder before the Regional
Trial Court of Bulacan, teh accused, assisted by counsel,
pleaded guilty to teh charge. Thereupon, the trial court
rendered judgment convicting the accused for the crime of
murder adn sentencing him to suffer reclusion perpetua
adn to pay civil indemnity to teh heirs of the victim. Did
the trial court act properly? Why?
A: No. Sec. 3, Rule 16 applies not only to those cases in
which death penalty is imposed but covers also cases in
wihch reclusion perpetua is imposed. Thus, the
requirement under Sec. 3, of Rule 116 must be complied
with.
IMPROVIDENT PLEA
Q: What is an improvident plea?
A: It is a plea without information as to all the
circumstances affecting it. It is based upon a mistaken
assumption or misleading information or advice.
Q: Enumerate the instances of improvident plea.
A:
1. Plea of guilty was compelled by violence or
intimidation;
2. The accused did not fully understand the meaning and
consequences of his plea;
3. Insufficient information to sustain conviction of the
offense charged;
4. Information does not charge an offense; or
5. Court has no jurisdiction.
Q: When may an improvident plea be withdrawn?
A: The court may permit an improvident plea of guilty to be
withdrawn, at any time before the judgment of conviction
becomes final, and be substituted by a plea of not guilty.
Note: The withdrawal of a plea of guilty is not a matter of right to
the accused but addressed to the sound discretion to the trial court
(Sec. 5, Rule 116).
Q: What is the effect of such withdrawal?
A: The court shall set aside the judgment of conviction and
re-open the case for new trial.
GROUNDS FOR SUSPENSION OF ARRAIGNMENT
Q: May arraignment be suspended?
A: Yes, upon motion by the proper party on the following
grounds:
1. The accused appears to be suffering from an unsound
mental condition which effectively renders him unable
to fully understand the charge against him and to
plead intelligently thereto;
2. There exists a valid prejudicial question;
3. A petition for review of the resolution of the
prosecutor is pending at the Department of Justice or
the Office of the President (Sec. 11)provided that the
period of suspension shall not exceed 60 days counted
from the filing of the petition;
4. There are pending incidents such as:
a. Motion to Quash
b. Motion for Inhibition
c. Motion for Bill of Particulars
Note: The period of suspension shall not exceed sixty (60) days
counted from the filing of the petition with the reviewing office
(Sec. 11, Rule 116).
MOTION TO QUASH
RULE 117
311 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What is a motion to quash?
A: It is a special pleading filed by the defendant before
entering his plea, which hypothetically admits the truth of
the facts spelled out in the complaint or information at the
same time that it sets up a matter which, if duly proved,
would preclude further proceedings.
Q: When may a motion to quash an information or
complaint be filed?
A: GR: At any time BEFORE entering his plea, the accused
may move to quash the information or complaint (Sec. 1,
Rule 117).
XPN: Instances where a motion to quash may be filed
AFTER plea:
1. The facts charged do not constitute an offense
2. Lack of jurisdiction over the offense charged
3. The criminal action or liability has been
extinguished
4. Double Jeopardy (Sec. 9, Rule 117)
Note: The right to file a motion to quash belongs only to the
accused. The court is not authorized to motu proprio initiate a
motion to quash by issuing an order requiring an explanation why
the information should not be quashed. The court, though, has the
discretion to dismiss the case if the information is not sufficient or
on any ground provided by law, or to dismiss the information for a
different one.
Q: What is the purpose of Motion to Quash?
A: The designated purpose of a motion to quash is to assail
the validity of the criminal information for defects or
defenses apparent on the face of the information (Galzole y
Soriaga v. Briones and People, G.R. No. 164682, Sept. 14,
2001)
Q: What are the requirements for a valid motion to
quash?
A: The motion to quash must be:
1. in writing;
2. signed by the accused or his counsel; and
3. specify distinctly the factual and legal grounds on
which it is based (Sec. 2).
Note: The court shall not consider any other ground other than
those specifically stated in the motion to quash except lack of
jurisdiction over the offense charged and when the information
does not charge an offense (Sec. 2, Rule 117).
GROUNDS
Q: What are the grounds for a motion to quash the
complaint or information? (1998 Bar Examination)
A:
1. That the facts charged do not constitute an offense;
2. That the court trying the case has no jurisdiction over
the offense charged;
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
3. That the court has no jurisdiction over the person of
the accused;
4. That the officer who filed the information had no
authority to do so;
5. That the information does not conform substantially to
the prescribed form;
6. That more than one offense is charged except when a
single punishment for various offense is prescribed by
law;
7. That the criminal action or liability has been
extinguished;
8. That it contains various averments which if true would
constitute legal excuse or justification;
9. That the accused has been previously convicted or
acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without
his express consent (double jeopardy) (Sec. 3, Rule
117).
Note: The enumeration given is exclusive.
1. The Facts charged do NOT constitute an offense
It is fundamental that the complaint or information must
state every fact necessary to make out an offense for the
Constitution guarantees that in all criminal prosecutions the
accused should be informed of the nature and cause of the
accusation against him (Section 14 (2) Article III).
It is required that the acts or omissions complained of as
constituting the offense must be stated in ordinary and
concise language so as to enable a person of common
understanding to know what offense is intended to be
charged, and to enable the court to pronounce judgment
(Sec. 9, Rule 110).
2. Jurisdiction over the offense charged
If the trial court has no jurisdiction, but the case was tried
and decided upon the theory that it had jurisdiction, the
parties are not barred, on appeal, from assailing such
jurisdiction, for the same must exist as a matter of law, and
may not be conferred by consent of the parties or by
estoppel.
3. Jurisdiction over the territory
In criminal proceedings, no one should be held to answer
for any crime committed by him except in the jurisdiction
where it was committed.
4. Jurisdiction over the person of the accused
Jurisdiction over the person is that acquired by the
voluntary appearance of a party in court and his submission
to its authority, or by the coercive power of legal process
exerted over the person through an arrest. Unlike
jurisdiction over the subject matter and territory,
jurisdiction over the person of the accused may be waived,
either expressly or by implication.
Q: What is the test of the courts jurisdiction?
312
 CRIMINAL PROCEDURE
A: GR: What determines the jurisdiction of the court in
criminal cases is the extent of the penalty which the law
imposes the misdemeanor, crime or violation of law
charged.
XPN:
1. Jurisdiction of the Sandiganbayan which is not
based on the penalty provided by law, but on the
salary grade of the public official.
2. Libel, which is within the exclusive jurisdiction of
the RTC although the imposable penalty does not
exceed 6 years.
3. Those offenses cognizable by the family court
where the determining factor is the minority of
any of the parties
4. The offense of slight physical injuries is cognizable
by the Metropolitan, Municipal or Municipal
Circuit Trial Court, but where the victim is a
minor, the case is to be filed in the Regional Trial
Court.
5. Lack of authority of the officer to file information
Criminal prosecutions are brought by authority of the
sovereign, and, therefore, only the officers possessed of
legal power to do so must be allowed to file criminal
information.
Note: The law invests the authority to file and prosecute criminal
cases to the following:
a. Provincial fiscals and their assistants (Section 1686,
Revised Administrative Code)
b. Chief State Prosecutor and his deputies
c. Tanodbayan and his deputies in special cases (PD No.
1607)
d. A lawyer appointed by the Minister of Justice (Section
1686, Revised Administrative Code)
Lack of substantial compliance with the requirements for a
good complaint or information required under Section 3 to
13, Rule 110 renders the accusatory pleading quashable.
Note: But mere defects in matters of form may be cured by
amendment.
7. Multiplicity of offenses charged
A complaint or information must charge but one offense,
except only in those cases in which the existing laws
prescribe a single punishment for various offenses (M.
Pamaran, Revised Rules on Criminal Procedure Annotated,
424 (2010)).
Q: The information filed against A charged more than one
offense. A has not yet been arraigned. If you were the
lawyer of A, would you file a motion to quash or a motion
for bill of particulars? Explain. (1996 Bar Examination)
A: I would file a motion to quash on the ground that more
than one offense is charged. A motion for bill of particulars
is not proper because there are no defects or details in the
information that need clarification.
8. Extinction of criminal action or liability
Q: What are the grounds for extinction of criminal
liability?
A: Under Article 89 of the Revised Penal Code, it is provided
that criminal liability is totally extinguished by:
1. The death of the convict,
as to personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death
of the offender occurs before final judgment;

Q: What are the instances where there is an unauthorized Note: The death of the offended party before final
filing of information? conviction will not abate prosecution where the
offense charged is one against the State involving
A: peace and order as well as in private crimes (People v.
1. Officer filing is irregularly appointed. It does not Misola, G.R. No. L-3606, Dec. 29, 1950).
necessarily invalidate the information if such officer
may be considered de facto; 2. Service of the sentence;
2. Officer is disqualified from appointment to such 3. Amnesty, which completely extinguishes the penalty
position. The information is invalid and the court does and all its effects;
not acquire jurisdiction to try the accused thereon 4. Absolute pardon;
(Villa vs. Banez, G.R. No. L-4313, March 20, 1951); 5. Prescription of the crime;
3. Officer filed the information without the approval 6. Prescription of the penalty; and
by the head / Chief prosecutor (Sec. 4, Rule 112); 7. The marriage of the offended woman, as provided in
4. Information is filed without the complaint in Article 344 of the Revised Penal Code.
cases involving private crimes.
Q: Distinguish pardon from amnesty.
Note: An infirmity in the information caused by the lack of
authority of the officer signing it cannot be cured by silence, A:
acquiescence, or even by express consent. An invalid information is Pardon Amnesty
no information at all. No criminal proceeding may prosper
therefrom, thus, it is subject to quashal (Romualdez vs. Proclaimed by the
Sandiganbayan, G.R. Nos. 143618-41, July 30, 2002).
President, but it has to
Granted by the Chief
be with the
6. Complaint of Information does not conform to the Executive.
concurrence of
prescribed form
Congress.

313 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

It is a private act which

must be pleaded and Note: Where the last day of the prescriptive period for
It is a public act which
proved by the person filing an information is a Sunday or legal holiday, the
the courts have to take
pardoned because the information can no longer be filed on the next working day.
judicial notice of.
courts take no notice of The remedy is for the fiscal or prosecution to file the
it. information on the last working day before the criminal
offense prescribes (Yapdiangco v. Buencamino, G.R. No. L-
Granted to classes of 31442, June 24, 1983).
persons or communities
who may be guilty of Q: What does prescription of the penalty mean?
political offenses,
Granted to one after generally before or A: Prescription of the penalty is the loss of right to demand
conviction. after the institution of the service of the penalty imposed.
the criminal
prosecution and Q: What is the rule on the period of prescription of
sometimes after penalties?
conviction.
A: The period of penalties commences to run from the date
Relieves the offender when the culprit should evade the service of his sentence
from the consequences and is interrupted if the defendant should give himself up,
of the offense of which be captured, should go to some foreign country with which
he is convicted. It only Abolishes and puts into the Philippines has no extradition treaty, or should commit
serves as a relief from oblivion the offense another crime before the expiration of the period of
the punishment but it itself. It is as though the prescription (People vs. Pontillas, 65 Phil. 658).
does not restore the offense was never
political rights of the committed. Q: What is nolle prosequi?
person, unless it is
expressly provided for A: It is a Latin term for we shall no longer prosecute. It is
in the pardon. a dismissal of the criminal case by the government before
the accused is placed on trial and before he is called to
plead, with the approval of the court in the exercise of its
Q: What is the computation of prescriptive period of judicial discretion. It partakes of a non-user or
offenses? discontinuance in a civil suit and leaves the matter in the
same condition in which it was before the commencement
A: The period of prescription commences to run from the of the prosecution. It is not an acquittal; it is not a final
day on which the crime is discovered by the offended party, disposition of the case; and it does not bar a subsequent
the authorities of their agents, and shall be interrupted by prosecution for the same offense. Thus, it can be refiled
the filing of the complaint or information, and commences (Galvez v. CA, G.R. No. 120715, Mar. 29, 1996).
to run again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably Note: Nolle prosequi is not the same as quashal, although both
stopped for any reason not imputable to him. The term of have the same result the dismissal of the case. A nolle prosequi is
prescription does not run when the offender is absent from initiated by the prosecutor while a quashal is upon motion to
the Philippines (Article 91, Revised Penal Code). quash filed by the accused.

Q: What interrupts the period of prescription?
A: The filing of a complaint or information interrupts the
running of the period of prescription but commences to run
again when such proceedings terminate without the
accused being convicted or acquitted, or are unjustifiably
stopped for any reason not imputable to him (Article 91,
Revised Penal Code; People vs. Yamzon, 10 Phil 385).
Q: In cases of violation of special laws, when will the
prescriptive period begin to run?
A: Violation of special law is malum prohibitum, hence, the
applicable statute requires that if violation of special law is
not known at the time, the prescriptive period begins to run
only from the discovery thereof, which includes discovery
of the unlawful nature of the constitutive acts which
requires the evidence to be shown. (People v. Duque, G.R.
No. 100285, Aug. 18, 1992)
Q: When a criminal case is dismissed on nolle prosequi,
can it later be refiled? (2003 Bar Examination)
A: As a general rule, when a criminal case is dismissed on
nolle prosequi before the accused is place on trial and
before he is called on to plead, this is not equivalent to an
acquittal and does not bar a subsequent prosecution for
the same offense (Galvez v. Court of Appeals, 237 SCRA
685).
9. That it contains averments, which if true, would
constitute a legal excuse or justification
Only exempting circumstances constitute a legal excuse or
justification. Justifying circumstances such as self-defense
must be proven.
10. Double Jeopardy

UNIVERSITY OF SANTO TOMAS 314

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
Q: What are the requisites of double jeopardy? EVIDENCE
Filed before the Filed after the
A: It attaches only (1) upon a valid indictment, (2) before a defendant enters his prosecution has rested
competent court, (3) after arraignment, (4) when a valid plea its case
plea has been entered, and (5) when the defendant was Does not go into the Based upon the
convicted or acquitted, or the case was dismissed or merits of the case but is inadequacy of the
otherwise terminated without the express consent of the anchored on matters evidence adduced by
accused. not directly related to the prosecution in
the question of guilt or support of the
Q: What are the instances when double jeopardy will not innocence of the accusation
attach? accused
Governed by Rule 117 Governed by Rule 119 of
A: of the Rules on Criminal the Rules on Criminal
1. The dismissal of a case during preliminary investigation Procedure Procedure
does not constitute double jeopardy, preliminary Does not require a prior May be filed by the
investigation not being part of the trial (Flores v leave of court accused either with
Montemayor, G.R. No. 170146, June 8, 2011). leave or without leave of
court
2. When the Court finds that the criminal trial was a
sham because the prosecution representing the EFFECTS OF SUSTAINING THE MOTION TO QUASH
sovereign people in the criminal case was denied
due process (Galman v. Sandiganbayan, 144 SCRA 43). Q: What are the effects of granting a motion to quash?

3. A void judgment for having been issued without A:

jurisdiction. No double jeopardy attaches because a
void judgment is, in legal effect, no judgment at all. By
it no rights are divested. Through it, no rights can be
attained. Being worthless, all proceedings founded
upon it are equally worthless. It neither binds nor bars
anyone (People v. Court of Appeals, 101 SCRA 450).
4. Dismissal is with the express consent of the accused
EXCEPT on the following:
a.) The dismissal is based on insufficiency of evidence
or
b.) The case is dismissed for violation of the accuseds
right to speedy trial (Benares v. Lim, G.R. No. 173421,
December 14, 2006)
Q: What is the effect of failure to move to quash or failure
to allege a ground before he pleads to the complaint or
information?
A: GR: It shall be deemed a waiver of any objections.
XPN: Grounds based on:
1. the facts charged do not constitute an offense;
2. the court trying the case has no jurisdiction over the
offense charged;
3. criminal liability has been extinguished; and
4. that the accused has been previously convicted or
acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without
his express consent (Sec. 9, Rule 117).
1. If the court sustains the motion, the accused remains
in custody if, at the time, he is under detention, unless
he is admitted to bail.
2. If NO ORDER to that effect is made, or if so made, NO
INFORMATION is filed within the time specified in the
order or within such further time allowed upon
showing a good cause, the accused must be set free,
unless he is also under custody by reason of some
other charge.
3. If the motion to quash is sustained upon any of the
following grounds, the court must state, in its order
granting the motion, the release of the accused if he is
in custody, or the cancellation of his bond if he is out
on bail
a. That a criminal action or liability has been
extinguished;
b. That it contains averments which, if true,
would constitute a legal excuse or
justification; or
c. That the accused has been previously
convicted or acquitted of the offense
charged.
4. If the ground upon which the motion to quash was
sustained is that the court has no jurisdiction over the
offense, the better practice is for the court to remand
or forward the case to the proper court, not to quash
the complaint or information.
5. If the ground of the motion is either:
a. that the facts charged do not constitute an
offense;
b. that the officer who filed the information
had no authority to do so; or;
c. that it does not conform substantially to the
prescribed form; or
d. that more than one offense is charged

DISTINGUISHED FROM DEMURRER TO EVIDENCE then the court should order the prosecution to file
another information or an amendment thereof, as the
MOTION TO QUASH DEMURRER TO

315 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
case may be, with a definite period, the order further
stating that in case of failure to comply therewith, the
accused if he is in custody shall be discharged, or his
bond cancelled if he is bonded (M. Paramaran, Revised
Rule on Criminal Procedures Annotated, 447-448
(2010)).
Q: Is the order denying the motion to quash appealable?
A: GR: No. It is interlocutory and not appealable. Certiorari
and prohibition are not the correct remedies against an
order denying a motion to quash. The defendant should
instead go to trial and raise the special defense he had
invoked in his motion. And if after trial on the merits, an
adverse decision is rendered, remedy is to appeal in the
manner authorized by law (Bulaong v. CA, G.R. No. 78555,
Jan. 30, 1990).
XPNs:
1. The act has ceased to be an offense
2. When intervention by higher court is required for
the orderly administration of justice or in the
interest of both the accused and the public.
3. It is unfair and unjust to make the accused go to
trial
4. When the circumstances warrant that
technicalities of procedure should be set aside.
5. If the court denying the motion to quash acted
without or in excess of jurisdiction or with grave
abuse of discretion.
Q: What is the procedure if the motion to quash is denied?
A:
1. The accused should plead;
2. Accused should go to trial without prejudice to the
special defenses he invoked in the motion;
3. Appeal from the judgment of conviction, if any, and
interpose the denial of the motion as an error
Q: After the requisite proceedings, the Provincial
Prosecutor filed and Information for homicide against X.
The latter however, timely filed a Petition for Review of
the Resolution of the Provincial Prosecutor with the
Secretary of Justice who, in due time, issued a Resolution
reversing the resolution of the Provincial Prosecutor and
directing him to withdraw the Information. Before the
Provincial Prosecutor could comply with the directive of
the Secretary of Justice, the court issued a warrant of
arrest against X. The Public Prosecutor filed a Motion to
Quash the Warrant of Arrest and to Withdraw the
Information, attaching to it the Resolution of the
Secretary of Justice. The court denied the motion. Was
there a legal basis for the court to deny the motion? (2002
Bar Question)
A: Yes, there is a legal basis for the court to deny the
motion to quash the warrant of arrest and to withdraw the
information. The court is not bound by the Resolution of
the Secretary of Justice. This is because once an
information is filed in court, any disposition of the case as
its dismissal or the conviction or acquittal of the accused
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
rests in the sound discretion of the court (Crespo v. Mogul,
151 SCRA 462).
Q: BC is charged with illegal possession of firearms under
an Information signed by the Provincial Prosecutor. After
arraignment but before pre-trial, BC found out that the
Provincial Prosecutor had no authority to sign and file the
Information as it was the City Prosecutor who has such
authority. During the pre-trial, BC moves that the case
against him be dismissed on the ground that the
information is defective because the officer signing it
lacked the authority to do so.The Provincial Prosecutor
opposes the motion on the ground of estoppels as BC did
not move to quash the Information before arraignment. If
you are the counsel for BC, what is your argument to
refute the opposition of the Provincial Prosecutor? (2000
Bar Question)
A: I would argue that since the Provincial Prosecutor had no
authority to file the information, the court did not acquire
jurisdiction over the person of the accused and over the
subject matter of the offense charged. Hence, this ground is
not waived if not raised in a motion to quash and could be
raised at the pre-trial (People v. Hon. Zeida Aurora Garfin,
G.R. No. 153176, March 29, 2004)
Q: Chato is charged with the murder of Velay. Before
arraignment, you, as counsel de officio of Chato,
discovered that the information failed to allege any
qualifying circumstances.
1. How may you properly object of the insufficiency of
the information, and on what ground?
2. May you still avail of that remedy after Chato has
entered her plea?
3. What course or courses of action may the court take
if it sustains the remedy you seek? (1994 Bar
Question)
A:
1. As counsel de officio for the accused, I can file a
motion to quash based on the ground that the facts
charged do not constitute the crime of murder there
being no qualifying circumstances alleged (Sec. 3 (a),
Rule 117)
2. After Chato has entered her plea, she may still move to
quash because she is not deemed to have waived such
objection (Sec. 9, Rule 117)
3. If the court sustains the motion to quash, the court
may order that another information be filed. If the
accused is in custody, he shall remain so unless he
shall be admitted to bail. If the information is not filed
within the time specified, or within the time specified
in the order, or within such further time as the court
may allow for good cause shown, the accused, if in
custody, shall be discharged therefrom unless he is
also in custody on some other charge (Sec. 5, Rule 117)
EXCEPTION TO THE RULE THAT SUSTAINING THE MOTION
TO QUASH IS NOT A BAR TO ANOTHER PROSECUTION
316
 CRIMINAL PROCEDURE
Q: Is an order granting a motion to quash a bar to another Q: Can a person convicted by a court-martial be
prosecution? prosecuted again in the civil court?

A: GR: An order sustaining the motion to quash is not a bar
to another prosecution for the same offense.
XPNs:
1. Double jeopardy; or
2. Criminal liability is extinguished (Sec. 6, Rule 117).
DOUBLE JEOPARDY (RES JUDICATA IN PRISON GREY)
A: No. A person convicted by a court-martial cannot, for the
same offense, be prosecuted again the civil court. A court
martial is a court, and the prosecution of an accused before
it is criminal, not administrative; thus it would be, under
certain conditions, a bar to another prosecution of the
defendant for the same offense, because the latter would
place the accused in double jeopardy (Marcos vs. Chief of
Staff, 89 Phil. 477).

It means that when a person is charged with an offense and
the case is terminated either by acquittal or conviction or in
any other manner without the consent of the accused, the
latter cannot again be charged with the same or identical
offense.
Q: What is the purpose of the right against double
jeopardy?
A: The purpose is to set the effects of the first prosecution
forever at rest, assuring the accused that he shall not
thereafter be subjected to the danger and anxiety of a
second charge against him for the same offense (Caes v.
Intermediate Appellate Court, 179 SCRA 54). It protects the
accused not against the peril of second punishment but
against being tried again.
Q: Is there double jeopardy when the complaint or
information was dismissed before the defendant has been
arraigned and had pleaded thereto?
A: No. The requirement that the accused must have been
arraigned and pleaded to the charge rests upon the idea
that it is only from that moment that the issues for trial are
deemed joined. Before that, the accused is not in danger of
being validly convicted (People vs. Apostol, 64 Phil. 676).
Q: D and E were charged with homicide in one
information. Before they could be arraigned, the
prosecution moved to withdraw the information
altogether and its motion was granted. Can the
prosecution re-file the information although this time for
murder? (2002 Bar Question)

Q: What are the kinds of double jeopardy? A: Yes the prosecution can re-file the information for
murder in substitution of the information for homicide
A: because no double jeopardy has as yet attached. (Galvez v.
1. No person shall be put twice in jeopardy for the SAME Court of Appeals, 237 SCRA 685).
OFFENSE.
2. When the act punished by a law and an ordinance, Q: D was charged with slight physical injuries in the MTC.
conviction or acquittal under either shall be a bar to He pleaded not guilty and went to trial. After the
another prosecution for the SAME ACT (Sec. 21, Art. III. prosecution has presented its evidence, the trial court set
1987 Constitution). the continuation of the hearing on another date. On the
date scheduled for hearing, the prosecutor failed to
Q: What are the requirements in order for the first appear, whereupon the court, on motion of D, dismissed
jeopardy to attach? the case. A few minutes later, the prosecutor arrived and
opposed the dismissal of the case. The court reconsidered
A: its order and directed D to present his evidence. Before
1. Competent Court the next date of trial came, however, D moved that the
2. Valid jurisdiction last order be set aside on the ground that the
3. Accused was arraigned reinstatement of the case had placed him twice in
4. Accused pleaded jeopardy. Acceding to this motion, the court again
dismissed the case. The prosecutor then filed an
Q: When does the second jeopardy attach? information in the RTC, charging D with direct assault
based on the same facts alleged in the information for
A: slight physical injuries but with the added allegation that
1. When the accused was acquitted; D inflicted the injuries out of resentment for what the
2. When there is final conviction; complainant had done in the performance of his duties as
3. Dismissal on the merits chairman of the board of election inspectors. D moved to
4. Dismissal without express consent quash the second information on the ground that its filing
had placed him in double jeopardy. How should Ds
Note: The prohibition against double jeopardy refers to the same motion to quash be resolved? (2002 Bar Question)
offense and not to the same act. The offense charged in the two
prosecutions must be the same in law and in fact, because the A: Ds motion to quash should be granted on the ground of
same acts may be violative of two or more provisions of the
double jeopardy because the first offense charged is
criminal law.
necessarily included in the second offense charged.
Although the dismissal of the first case was upon motion of
the accused, double jeopardy attached since the dismissal

317 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
was due to failure to proseccutewhich amounts to an
acquittal (People v. Clobel, 11 SCRA 805; Esmene v. Pogoy,
102 SCRA 851)
Q: What are the tests in determining the identity of the
offenses for the purpose of applying the rule on double
jeopardy?
A: Same offense test whether the offense charged in the
first information is the same offense in the second charge,
or whether the second offense necessarily includes or is
necessarily included in the first offense charged in the
former complaint or information.
Same-evidence test- whether the facts alleged in the
second information, if proved, would have been sufficient
to sustain the former information, or from which the
accused may have been acquitted or convicted.
Q: What is the identity rule?
A: There is identity between two offenses not only when
the second offense is exactly the same as the first, but also
when the second offense includes or is necessarily included
in the first offense or an attempt or frustration thereof, or
when it necessarily includes or is necessarily included in the
offense charged in the first information.
Q: When does an offense include or is included in
another?
A: An offense charged NECESSARILY INCLUDES the offense
proved when some of the essential ingredients or
ingredients of the former as alleged in the complaint or
information constitute the latter.
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.
Q: What are the exceptions to the identity rule?
A:
1. The graver offense developed due to supervening facts
arising out of the same act or omission constituting the
former charge. (Sec. 7 (a), Rule 117)
2. The facts constituting the graver offense became
known or were discovered only after a plea was
entered in the former complaint or information. (Sec.
7 (b), Rule 117)
3. The plea of guilty to a lesser offense was made
without the consent of the prosecutor and the
offended party (Sec. 7 (c), Rule 117)
4. The second offense was not in existence at the time of
the first prosecution for the simple reason that in such
case, there is no possibility for the accused, during the
first prosecution, to be convicted for an offense that
was then inexistent (Melo v. People, 85 Phil 766).
Note: In any of the foregoing cases, where the accused satisfies or
serves in whole or in part the judgment, he shall be credited with
the same in the event of conviction for the graver offense.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the doctrine of supervening fact?
A: If, after the first prosecution, a new fact supervenes on
which the defendant may be held liable, altering the
character of the crime and giving rise to a new and distinct
offense, the accused cannot be said to be in second
jeopardy if indicted for the new offense.
Q: What is the effect of double jeopardy on the civil aspect
of the case?
A: The offended party and the accused may appeal the civil
aspect of the case because the concept of double jeopardy
evidently has reference only to the criminal case and has no
effect on the civil liability of the accused (Riano, Criminal
Procedure 2011 p. 475)
Q: Is the concept of double jeopardy applicable to
administrative cases?
A: No. The rule on double jeopardy does not apply to a
controversy where one is an administrative case and the
other is criminal in nature (Riano, Criminal Procedure 2011
p. 487 citing Icasiano v. Sandiganbayan, 209 SCRA 377).
Q: As a result of vehicular mishap, petitioner was charged
before the MTC of two separate offenses in two
informations:
a. reckless imprudence resulting in slight physical
injuries; and
b. reckless imprudence resulting in homicide and
damage to property for the death of the husband of
the respondent and damage to the vehicle.
Petitioner pleaded guilty to the first information and was
punished only be public censure. Invoking such conviction
petitioner now moves for the quashal of the other
information on the ground of double jeopardy. Does
double jeopardy apply to quasi offenses?
A: Yes. The two charges arose from the same facts and
were prosecuted under the same provision of the Revised
Penal Code, namely Article 365. The doctrine is that
reckless imprudence under Art. 365 is a single quasi-
offense by itself and not merely a means to commit other
crimes. Hence, conviction or acquittal of such quasi offense
bars subsequent prosecution for the same quasi offense,
regardless of its various resulting acts (Ivler v. Modesto- San
Pedro, GR No. 172716, Nov. 17, 2010)
Q: For firing a machine gun which caused panic among the
people present and physical injuries to one, two separate
informations (one for serious public disturbance and the
other for reckless imprudence resulting in physical
injuries) were filed against the accused. As he pleaded
guilty to the charge of reckless imprudence resulting in
physical injuries, the accused was convicted and
sentenced accordingly.
Later, the accused sought to dismiss the charge of serious
public disturbance on the ground of double jeopardy. Is
there double jeopardy? Why? (1993 Bar Question)
318
 CRIMINAL PROCEDURE
A: No, because the protection against double jeopardy is jeopardy in another prosecution therefore OR where the
only for the same offense. A single act may be an offense case was reinstated on a motion for reconsideration by the
against two different provisions of law and if one provision prosecution.
requires proof of an additional fact which the other does
not, an acquittal or conviction under one does not bar Note: The concept of provisional dismissal contemplates that the
prosecution under the other. In this case, the act of firing a dismissal of the criminal action is not permanent and can be
revived within the period set by the Rules of Court.
machine gun violated two articles of the Revised Penal
Code. Consequently, conviction for one does not bar
XPNs: The dismissal amounts to an acquittal even if the
prosecution for the other.
dismissal was ordered at the instance of the defendant if it
is based on:
Q: Distinguish dismissal from acquittal
1. Lack or insufficiency of evidence
2. If the same was predicated upon the right of the
A:
accused to a speedy trial, hence, even if the accused
Dismissal Acquittal
gave his express consent to such dismissal or moved
Does not decide on the Always based on the
for dismissal, such consent would be immaterial as
merits, does not merits. Defendant is
such dismissal is actually an acquittal
determine the acquitted because guilt
defendants guilt or was not proven beyond
3. There is variance between the proof and the
innocence reasonable doubt
allegations in the complaint or information
Double jeopardy will Double jeopardy always
not always attach attaches
Q: When does a provisional dismissal become permanent?
Q: What are the instances wherein dismissal of the case is A: The dismissal shall become permanent if:
tantamount to an acquittal? 1. The case is not revived within one (1) year after the
issuance of the order of provisional dismissal with
A: respect to offenses punishable by imprisonment not
1. Insufficiency of evidence of the prosecution (demurrer exceeding six (6) years or a fine of any amount or both;
to evidence). or
2. Dismissal due to violation of right to speedy trial (even 2. The case is not revived within two (2) years after the
if dismissal was upon motion of the accused or with his issuance of the order of provisional dismissal with
express consent). respect to offenses punishable by imprisonment of
more than six (6) years (Sec 8, Rule 117)
Q: What are the rules regarding the application of double
jeopardy on State witnesses? Thus, within the periods stated, the prosecution has to
revive the case if it desires to prevent the provisional
A: An order discharging an accused as a State witness dismissal becoming permanent and the revival of the
amounts to an acquittal, hence double jeopardy will apply. case being time-barred.
However, if he fails or refuses to testify against his co-
accused in accordance with his sworn statement, he may be This is known as the TIME BAR RULE. If no revival of
prosecuted again. the case is made within the prescribed period, the
dismissal shall be removed from being provisional and
PROVISIONAL DISMISSAL becomes permanent.
Q: What are the essential requisites for a valid provisional Note: The State may revive a criminal case beyond the one-year or
dismissal? two-year periods, provided there is justifiable necessity for the
delay, and subject to the right of the accused to oppose the same
A: on the ground of double jeopardy, or that such revival or refiling is
1. There must be a motion by the prosecution with the barred by the statute of limitations (People v. Lacson, G.R. No.
express conformity of the accused, or by the accused 149453, Oct. 7, 2003).
himself, or by both the prosecution and the accused
for a provisional dismissal of the case; Q: What does express consent mean?
2. The offended party is notified of the motion for a
provisional dismissal of the case; A: It must be a positive, direct, unequivocal consent
3. The court issues an order granting the motion and requiring no inference or implication to supplying its
dismissing the case provisionally; meaning. The mere inaction or silence of the accused or his
4. The public prosecutor is served with a copy of the failure to object to a provisional dismissal of the case does
order of provisional dismissal of the case (People v. not amount to express consent.
Panfilo Lacson, et. al., G.R. No. 149453, promulgated
on April 1, 2003, 400 SCRA 267). Q: In a prosecution for robbery against D, the prosecutor
Q: What is the rule on provisional dismissal of a case? moved for the postponement of the first scheduled
hearing on the ground that he had lost his records of the
A: GR: Where the case was dismissed PROVISIONALLY with case. The court granted this motion but, when the new
the consent of the accused, he CANNOT invoke double date of trial arrived, the prosecutor alleging that he could

319 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
not locate his witnesses, moved for the provisional A: After arraignment and within thirty (30) days from the
dismissal of the case. If Ds counsel does not object, may date the court acquires jurisdiction over the person of the
the court grant the motion of the prosecutor? Why? (2002 accused unless a shorter period is provided by special laws
Bar Question). or circulars of the Supreme Court (Sec. 1, Rule 118).

A: No, because a case cannot be provisionally dismissed Q: Give the distinctions between a pre-trial in a criminal
except upon the express consent of the accused and with case and a pre-trial in a civil case. (1997 Bar Question)
notice to the offended party.
A:
Q: Before the arraignment for the crime of murder, the Pre-trial in Civil Cases Pre-trial in Criminal Cases
private complainant executed an Affidavit of Desistance Is set when the plaintiff Pre-trial is ordered by the
stating the she was not sure if the accused was the man moves ex parte. court and no motion to set
who killed her husband. The public prosecutor filed a the case for pre-trial is
Motion to Quash the Information on the ground that with required from either the
private complainants desistance, he did not have prosecution or the defense.
evidence sufficient to convict the accused. On 02 January (Sec. 1, Rule 118)
2001, the court without further proceedings granted the The motion to set the case The pre-trial is ordered by
motion and provisionally dismissed the case. The accused for pre-trial is made after the court after arraignment
gave his express consent to the provisional dismissal of the last pleading has been and within 30 days from the
the case. The offended party was notified of the dismissal served and filed. (Sec. 1, date the court acquires
but she refused to give her consent. Rule 18) jurisdiction over the person
of the accused. (Sec. 1 Rule
Subsequently, the private complainant urged the public 118)
prosecutor to refile the murder charge because the Considers the possibility of Does not include the
accused failed to pay the consideration which he had an amicable settlement or considering of the possibility
promised for the execution of the Affidavit of Desistance. compromise of amicable settlement of a
The public prosecutor obliged and refiled the murder criminal liability as one of its
charge against the accused on 01 February 2003. The purpose. (Sec. 1, Rule 118)
accused filed a Motion to Quash the Information on the The agreements and All agreements or
ground that the provisional dismissal of the case had admissions may be admissions made or entered
already become permanent. Was the provisional dismissal contained in the record of during the pre-trial
of the case proper? (2003 Bar Question). pre-trial and pre-trial order. conference shall be reduced
The Minutes of Preliminary in writing and signed by
A: The provisional dismissal of the case was proper because Conference, may be signed both the accused and
the accused gave his express consent thereto and the by either the party or his counsel, otherwise, they
offended party was notified. It was not necessary for the counsel. cannot be used against the
offended party to give her consent thereto (Sec. 8, Rule accused.
117). A pre-trial brief is required A pre-trial brief is not
to be submitted. (Sec. 6, specifically required.
PRE-TRIAL Rule 18)
RULE 118 (Riano, Civil Procedure: A Restatement for the Bar, p. 373,
2009 ed.).
Q: What is the importance of a pre-trial?
Q: What must the order for pre-trial conference contain?
A:
1. It covers not only that period technically defined in A: It must contain orders:
Rule 118 but also that period from filing of the 1. Requiring the private offended party to appear thereat
information up to the actual conduct of trial; for purposes of plea-bargaining and for other matters
2. It encompasses many legal remedies such as the filing requiring his presence;
of Motion to Quash (Rule 117), Motion to Suppress 2. Referring the case to the branch clerk of court, if
Evidence (Sec, 14, Rule 126), Motion for Determination warranted, for a preliminary conference to be set at
of Probable Cause (Rule 126) least three (3) days prior to the pre-trial to mark the
documents or exhibits to be presented by the parties
and copies thereof to be attached to the records after
comparison and to consider other matters as may aid
in its prompt disposition; and
3. Informing the parties that no evidence shall be
allowed to be presented and offered during the trial
MATTERS TO BE CONSIDERED DURING PRE-TRIAL other than those identified and marked during the pre-
trial except when allowed by the court for good cause
Q: When is pre-trial held? shown. In mediatable cases, the judge shall refer the
parties and their counsel to the Philippine Mediation

UNIVERSITY OF SANTO TOMAS 320

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
Center unit for purposes of mediation if available
(A.M. No. 03-1-09-SC).
Q: What is the form of a valid pre-trial agreement?
A: The pre-trial agreement must be in writing and signed by
both the accused and his counsel. If the required form is
not observed, the pre-trial agreement cannot be used
against the accused (Sec. 2, Rule 118).
Note: The agreements covering the matters in the pre-trial
conference shall be approved by the court.
Q: What are the matters considered during pre-trial?
A:
1. Plea bargaining;
2. Stipulation of facts;
3. Marking for identification of evidence of parties;
4. Waiver of objections to admissibility of evidence;
5. Modification of the order of the trial if one of the
accused admits the charge but interposes a lawful
defense (reverse trial); and
6. Such other matters as will promote a fair and
expeditious trial of the civil and criminal aspects of the
case (Sec. 1).
Note: During the preliminary conference, the branch clerk of court
shall assist the parties in reaching a settlement of the civil aspect of
the case, mark the documents to be presented as exhibits and
copies thereof attached to the records after comparison, ascertain
from the parties the undisputed facts and admissions on the
genuineness and due execution of documents marked as exhibits
and consider such other matters as may aid in the prompt
disposition of the case. The proceedings during the preliminary
conference shall be recorded in the minutes of preliminary
conference to be signed by both parties and counsel.
The minutes of preliminary conference and the exhibits shall be
attached by the branch clerk of court to the case record before the
pre-trial (A.M. No. 03-1-09-SC). If the accused has pleaded not
guilty to the crime charged, he may state whether he interposes 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 such defense by
clear and convincing evidence (Sec. 3, Speedy Trial Act).
Q: What is plea bargaining?
A: Plea bargaining is the process whereby the accused, the
offended party and the prosecution work out a mutually
satisfactory disposition of the case subject to court
approval. It usually involves the defendants pleading guilty
to a lesser offense or to only one or some of the counts of a
multi- count indictment in return for a lighter sentence
than that for the graver charge.
Q: When is plea bargaining not applicable?
A: In violations of the Dangerous Drugs Act regardless of
the imposable penalty (Sec. 23, RA 9165).
Q: What shall the court do if the plea bargaining fails?
A: The court shall:
1. Adopt the minutes of preliminary conference as part
of the pre-trial proceedings, confirm markings of
exhibits or substituted photocopies and admissions on
the genuineness and due execution of documents and
list object and testimonial evidence;
2. Scrutinize every allegation of the information and the
statements in the affidavits and other documents
which form part of the record of the preliminary
investigation and other documents identified and
marked as exhibits in determining further admissions
of facts, documents and in particular as to the
following:
a. The identity of the accused;
b. Courts territorial jurisdiction relative to the
offense/s charged;
c. Qualification of expert witness;
d. Amount of damages;
e. Genuineness and due execution of documents;
f. The cause of death or injury, in proper cases;
g. Adoption of any evidence presented during the
preliminary investigation;
h. Disclosure of defenses of alibi, insanity, self-
defense, exercise of public authority and
justifying or exempting circumstances; and
i. Such other matters that would limit the facts in
issue.
3. Define factual and legal issues;
4. Ask parties to agree on the specific trial dates and
adhere to the flow chart determined by the court
which shall contain the time frames for the different
stages of the proceeding up to promulgation of
decision and use the time frame for each stage in
setting the trial dates;
5. Require the parties to submit to the Branch COC the
names, addresses and contact numbers of witnesses
that need to be summoned by subpoena; and
6. Consider modification of order of trial if the accused
admits the charge but interposes a lawful defense
(A.M. No. 03-1-09-SC).
WHAT THE COURT SHOULD DO WHEN PROSECUTION AND
OFFENDED PARTY AGREE TO THE PLEA OFFERED BY THE
ACCUSED
Q: What is the effect if the prosecution and the offended
party agree to the plea offered by the accused?
A: The court shall:
1. issue an order which contains the plea bargaining
arrived at;
2. proceed to receive evidence on the civil aspect of the
case; and
3. render and promulgate judgment of conviction,
including the civil liability or damages duly established
by the evidence (A.M. No. 03-1-09-SC).
PRE-TRIAL AGREEMENT
Q: What is pre- trial agreement?
321 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: All agreements or admissions made or entered into
during the pre- trial conference shall be reduced to writing
and signed by the accused and counsel, otherwise the same
shall not be used as evidence against the accused.
Q: What are the requisites before a pre-trial agreement
may be used as evidence?
A:
1. They are reduced to writing;
2. The pre-trial agreement is signed by the accused AND
his counsel
The agreements in relation to matters referred to in Section
2, i.e, Plea bargaining, Stipulation of Facts, Marking for
Identification of evidence of parties, Waiver of objections to
admissibility of evidence, and Other matters as will promote
a fair and expeditious trial are subject to the approval of
the court. Provided, that the agreement on the plea of the
accused to a lesser offense may only be revised, modified,
or annulled by the court when the same is contrary to law,
public morals, or public policy (Sec. 3 Speedy Trial Act of
1998).
Note: The requirement of Section 2 is intended to safeguard the
right of the accused against improvident or unauthorized
agreements or admissions which his counsel may have entered
into, or which any person may have ascribe to the accused without
his knowledge, as he may have waived his presence at the pre-trial
conference (People vs. Uy, G.R. No. 128046. March 7, 2000).
NON-APPEARANCE DURING PRE-TRIAL
Q: What is the effect of non-appearance of counsel for the
accused or the prosecutor during the pre-trial without
valid justification?
A: Where counsel for the accused or the prosecutor does
not appear at the pre-trial conference and does not offer an
acceptable excuse for his lack of cooperation, the court
may impose proper sanctions or penalties. The court may
impose proper sanctions or penalties in the form of
reprimand, fines or imprisonment if he does not offer an
acceptable excuse for his lack of cooperation (Sec. 3, Rule
118; Sec. 5, Speedy Trial Act).
Q: What is the reason why accused is not included in the
mandatory appearance during pre-trial?
A: The principal reason why the accused is not included in
the mandatory appearance is the fear that to include him is
to violate his constitutional right to remain silent (Section
12, par. 1, Article III, 1987 Constitution).
Note: Unless otherwise required by the court, personal appearance
of the accused at the conference is not indispensible. This is aside
from the consideration that the accused may waive his presence at
all stages of the criminal action, except at the arraignment,
promulgation of judgment or when required to appear for
identification (Regalado, Remedial Law Compendium, Vol. 2, p.
541, 2008 ed.).
PRE-TRIAL ORDER
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is pre-trial order?
A: It is an order issued by the court reciting the actions
taken, the facts stipulated and the evidence marked during
the pre-trial conference (Sec. 4).
Q: What is the purpose and effect of the pre-trial order?
A: Such order shall bind the parties, limit the trial to those
matters not disposed of, and control the course of the
action during the trial, unless modified by the court to
prevent manifest injustice. (Sec 4 Rule 118; Sec 5, Speedy
Trial Act of 1998)
Note: To prevent manifest injustice, however, the pre-trial order
may be modified by the court, upon its own initiative or at the
instance of any party.
Q: When shall the trial judge issue a pre-trial order and
what are its contents?
A: It must be issued within ten (10) days after the
termination of the pre-trial. It shall set forth the following:
1. Actions taken during the pre-trial conference;
2. Facts stipulated;
3. Admissions made;
4. Evidence marked; and
5. Number of witnesses to be presented and the
schedule of trial (Sec. 4, rule 118).
REFERRAL FOR SOME CASES FOR COURT ANNEXED
MEDIATION AND JUDICIAL DISPUTE RESOLUTION
(A.M. No, 11-1-6-SC-PHILJA)
Q: What is the purpose of Court Annexed Mediation and
Judicial Dispute Resolution?
A: The diversion of pending court cases both to Court-
Annexed Mediation (CAM) and to Judicial Dispute
Resolution(JDR) is plainly intended to put an end to pending
litigation through a compromise agreement of the parties
and thereby help solve the ever-pressing problem of court
docket congestion. It is also intended to empower the
parties to resolve their own disputes and give practical
effect to the State Policy expressly stated in the ADR Act of
2004 (R.A. No. 9285), to wit:
to actively promote party autonomy in the resolution of
disputes or the freedom of the parties to make their own
arrangement to resolve disputes. Towards this end, the
State shall encourage and actively promote the use of
Alternative Dispute Resolution (ADR) as an important
means to achieve speedy and impartial justice and de-clog
court dockets.
Q: What is the judges role in mediation?
A: The pre-trial judge will rule on the compromise
agreement reached through mediation. If court-annexed
322
 CRIMINAL PROCEDURE
mediation fails, the pre-trial judge takes on the role of
conciliator, neutral evaluator and mediator.
The judge will sit down with counsel and their parties to
hear a summary of the case and will attempt to conciliate
the differences between the parties. As a neutral evaluator,
the judge will be free to express his views on the chances of
each party in the case. At this point, if the parties agree to
reconsider and undergo mediation, the judge will facilitate
the settlement as a mediator. If the parties still refuse
mediation, however, the judge will then issue an order
referring the case to another judge. The order will specify
that both court-annexed mediation and JDR have failed.
Q: What are the three stages of diversion of cases to Court
Annexed Mediation and Judicial Dispute Resolution?
A:
1. The first stage is the Court-Annexed Mediation (CAM)
where the judge refers the parties to the Philippine
Mediation Center (PMC) for the mediation of their
dispute by trained and accredited mediators.
2. Upon failing to secure a settlement of the dispute during
the first stage, a second attempt is made at the JDR
stage. There, the JDR judge sequentially becomes a
mediator conciliator-early neutral evaluator in a
continuing effort to secure a settlement. Still failing that
second attempt, the mediator-judge must turn over the
case to another judge (a new one by raffle or
nearest/pair judge) who will try the unsettled case. The
trial judge shall continue with the pre-trial proper and,
thereafter, proceed to try and decide the case.
3. The third stage is during the appeal where covered cases
are referred to the PMC-Appeals Court Mediation
(ACM) unit for mediation.
Q: What are the cases covered by Court Annexed
Mediation and Judicial Dispute Resolution?
A: The following cases shall be 1) referred to Court-
Annexed Mediation (CAM) and 2) be the subject of Judicial
Dispute Resolution (JDR) proceedings:
1. All civil cases and the civil liability of criminal cases
covered by the Rule on Summary Procedure, including
the civil liability for violation of B.P. 22, except those
which by law may not be compromised;
2. Special proceedings for the settlement of estates;
3. All civil and criminal cases filed with a certificate to file
action issued by the Punong Barangay or the Pangkat
ngTagapagkasundo under the Revised Katarungang
Pambarangay Law;
4. The civil aspect of Quasi-Offenses under Title 14 of the
Revised Penal Code;
5. The civil aspect of less grave felonies punishable by
correctional penalties not exceeding 6 years
imprisonment where the offended party is a private
person;
6. The civil aspect of estafa, theft and libel;
7. All civil cases and probate proceedings, testate and
intestate, brought on appeal from the exclusive and
original jurisdiction granted to the first level courts
under Section 33, par. (1) of the Judiciary
Reorganization Act of 1980;
323
8. All cases of forcible entry and unlawful detainer brought
on appeal from the exclusive and original jurisdiction
granted to the first level courts under Section 33, par.
(2) of the Judiciary Reorganization Act of 1980;
9. All civil cases involving title to or possession of real
property or an interest therein brought on appeal from
the exclusive and original jurisdiction granted to the
first level courts under Section 33, par.(3) of the
Judiciary Reorganization Act of 1980; 13 and
10. All habeas corpus cases decided by the first level courts
in the absence of the Regional Trial Court judge, that
are brought up on appeal from the special jurisdiction
granted to the first level courts under Section 35 of the
Judiciary Reorganization Act of 1980.
Q: Distinguish court-annexed mediation (CAM) from court
referred mediation (CRM)?
A:
CAM CRM
Any mediation process A mediation ordered by
conducted under the a court to be conducted
auspices of the court in accordance with the
that has acquired agreement of the
jurisdiction of the parties when an action
dispute. is prematurely
commenced in violation
of such agreement
Q: What are those cases which cannot be referred to
Court Annexed Mediation and Judicial Dispute Resolution?
A: The following cases shall not be referred to CAM and
JDR:
1. Civil cases which by law cannot be compromised
(Article 2035, New Civil Code);
2. Other criminal cases not covered under paragraphs 3
to 6 above;
3. Habeas Corpus petitions;
4. All cases under Republic Act No. 9262 (Violence
against Women and Children); and
5. Cases with pending application for Restraining
Orders/Preliminary Injunctions. However, in cases
covered under 1, 4 and 5 where the parties inform the
court that they have agreed to undergo mediation on
some aspects thereof, e.g., custody of minor children,
separation of property, or support pendent lite, the
court shall refer them to mediation.
Q: What is appellate court mediation (ACM)?
A: It is a mediation program in the Court of Appeals,
corollary to court-annexed mediation in the lower courts. It
provides a conciliatory approach in conflict resolution.
Through ACM, the CA promotes a paradigm shift in
resolving disputes from a right-based (judicial) to an
interest-based (mediation) process.
Q: Who is qualified to serve as mediator in appellate court
mediation?
A: Only an Appellate Mediator who is trained and
accredited by the Philippine Judicial Academy (PHILJA) can
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
mediate in the CA. As a basic qualification, he/she must be
a retired justice, judge, senior member of the Bar, or senior
law professor, who possesses creative problem-solving
skills and has strong interest in mediation.

Q: Discuss the process in appellate court mediation.

A:

UNIVERSITY OF SANTO TOMAS 324

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE

I. Selection of Division Clerk of court Petitioner or appellant If the case is

Cases identifies the pending cases specifies that the case eligible for
to be approved by the is qualified for mediation, the
(ponente) Justice in charge, mediation. ponente refers the
for decision. case to PMC-CA

Ponente issues a resolution The resolution also

II. Resolution to directing the parties to appear suspends the running
AppearFiling at the PMC-CA without of the period to file the
counsel to consider the appellees brief.
possibility of mediation.

Upon agreement of the parties to

III. Agreement to mediate, the PMC-CA requires Parties choose a mediator and
mediate the parties to execute an the date and time of the initial
Agreement to Mediate mediation conference

Mediator completes the Individual litigants are required to attend

IV. Mediation proceedings within 30 days
Proceedings from date of initial conference,
with extendible period of 30
days if there is a justifiable
ground.
mediation conferences in person;
corporate parties must be represented by
a corporate officer duly authorized by
Board resolution.

If the parties agree to a full or partial Parties/counsel and mediator

V. Disposition compromise, the mediator drafts sign the compromise agreement
of Cases written terms with the concurrence which is transmitted to the
of the parties / counsel. Court.

Court approves the In case of full settlement, the

compromise parties agree to withdraw the
agreement and appeal and enter into a mutual
makes an satisfaction of claims and
immediate entry of counterclaims. Upon receipt,
judgment. the Court renders an order of
dismissal.

If the parties fail to reach a settlement, the

mediator returns the case to the Division of
origin. He then makes a confidential report to
the PMC-CA on the reasons for the failure.

Q: Explain the judicial dispute resolution (JDR) process.

A:

325 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Lupon Tagapamayapa

Reaches a compromise agreement Failure to mediate

Filing of Case

Non-mediatable

Trial
Mediatable

Decision
Court-annexed mediation

Failure to appear Compromise Settlement cannot be

agreement reached

Complainant Defendant Judicial Dispute

Pre-trial judge will
rule on the Resolution
compromise Pre-trial judge as
Dismiss agreement mediator
Complainant
the case presents his
case
Reaches Fails
a
Decision settlement
Refer the
case to
Judgment another
based on judge for trial
compromise

Decision

Appellate
Court
Mediation:
Appeal to
CA

Reaches a Fails
settlement

Decision

Q: Distinguish appellate court mediation (ACM) from A:

court-annexed mediation (CAM) and judicial dispute CAM JDR ACM
resolution (JDR)? A case eligible for The mediation The case has
mediation at a process is also in been tried and

UNIVERSITY OF SANTO TOMAS 326

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE

First Level Court the lower courts judgment has Q: What is the effect of the referral of the case to CAM
or RTC during the and mediation is been rendered and JDR?
pre-trial stage is conducted just at the lower
referred by the like in Court - courts but has A: The period during which the case is undergoing
presiding judge Annexed been appealed mediation shall be excluded from the regular and
to the Philippine Mediation. If to the CA. mandatory periods for trial and rendition of judgment in
Mediation Center mediation fails ordinary cases and in cases under summary proceedings.
Unit for or the parties
mediation. refuse Q: What is the procedure after the parties reached a
Mediation is mediation, the settlement?
successful if the case goes back
parties enter into to the judge A: If full settlement of the dispute is reached, the parties,
a Compromise who does not assisted by their respective counsels, shall draft the
Agreement, and yet try the case. compromise agreement which shall be submitted to the
the judge renders The judge, court for judgment upon compromise or other appropriate
a decision based acting action.
on this sequentially as
agreement. If it Conciliator, Where compliance is forthwith made, the parties shall
fails or the Neutral instead submit a satisfaction of claims or a mutual
parties refuse to Evaluator and withdrawal of the case and, thereafter, the court shall enter
undergo Mediator or a an order dismissing the case. If partial settlement is
mediation, the combination of reached, the parties shall, with the assistance of counsel,
case goes back to the three, submit the terms thereof for the appropriate action of the
court for trial. attempts to court, without waiting for resolution of the unsettled part.
convince the
parties to settle Q: What will happen if the other party does not comply
their case with the agreement reached?
amicably. If the
parties still A: The court which approved the compromise agreement
refuse to settle, must be informed immediately for it to issue an order to
the case goes comply. Sanctions will be imposed for non-compliance.
back to court for The aggrieved party may also apply for a writ of execution.
trial.
Q: What is the remedy if the case is not resolved during
Q: What is the duration of mediation in the Philippine JDR?
Mediation Center?
A:
A: The Mediator shall have a period of not exceeding thirty 1. MULTIPLE SALA COURT- If the case is not resolved
(30) days to complete the mediation process. Such period during the JDR, the case shall be raffled to another
shall be computed from the date when the parties first branch for the pre- trial proper until judgment.
appeared for the initial conference as stated in the Order to
appear. An extended period of another thirty (30) days may For cases with pending applications for restraining
be granted by the court, upon motion filed by the orders/preliminary injunctions, the judge to whom the
Mediator, with the conformity of the parties. case was raffled shall rule on the said applications.
During the pre-trial stage, the judge refers the case to
Q: May a case be referred to JDR even during trial? CAM, but if the parties do not settle at CAM, the case
will be raffled to another branch for JDR. If the parties
A: Yes. Cases may be referred to JDR even during the trial do not settle at JDR, the case will be returned to the
stage upon written motion of one or both parties indicating branch that ruled on the applications for the pre-trial
willingness to discuss a possible compromise. If the motion proper and up to judgment.
is granted, the trial shall be suspended and the case
referred to JDR, which shall be conducted by another judge 2. SINGLE SALA COURT- Unless otherwise agreed upon as
through raffle in multiple sala courts. provided, the JDR proceedings will be conducted by
the judge of the pair court, if any, otherwise, by the
Q: Can one party refuse mediation? judge of the nearest court as determined by the
concerned Executive Judge. The JDR proceedings shall
A: No. Once the court determines that the case is be conducted at the station where the case was
mediatable, the parties are compelled to appear before the originally filed. The result of the JDR proceedings shall
Philippine Mediation Center (PMC) unit. If the complainant be referred to the court of origin for appropriate
fails to appear for mediation, the case may be dismissed. If action, e.g. approval of the compromise agreement,
the defendant is absent, the court will then decide the case trial, etc.
on the basis of what was presented by the plaintiff alone.

327 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
Notwithstanding the foregoing, before the
commencement of the JDR proceedings, the parties
may file a joint written motion requesting that the
court of origin conduct the JDR proceedings and trial.
3. FAMILY COURTS- Unless otherwise agreed upon as
provided below, the JDR proceedings in areas where
only one court is designated as a family court, shall be
conducted by a judge of another branch through
raffle. However, if there is another family court in the
same area, the family court to whom the case was
originally raffled shall conduct JDR proceedings and if
no settlement is reached, the other family court shall
conduct the pre-trial proper and trial.
Notwithstanding the foregoing, before
commencement of the JDR proceedings, the parties
may file a joint written motion requesting that the
family court to which the case was originally raffled
shall conduct the JDR proceedings and trial.
Despite the non-mediatable nature of the principal
case, like annulment of marriage, other issues such as
custody of children, support, visitation, property
relations and guardianship, may be referred to CAM
and JDR to limit the issues for trial.
4. COMMERCIAL, INTELLECTUAL PROPERTY AND
ENVIRONMENTAL COURTS- Unless otherwise agreed
upon as provided below, the JDR proceedings in areas
where only one court is designated as
commercial/intellectual property/environmental
court, hereafter referred to as special court, shall be
conducted by another judge through raffle and not by
the judge of the special court. Where settlement is not
reached, the judge of the special court shall be the
trial judge. Any incident or motion filed before the pre-
trial stage shall be dealt with by the special court that
shall refer the case to CAM.
Notwithstanding the foregoing, before
commencement of the JDR proceedings, the parties
may file a joint written motion requesting that the
special courts to which the case was originally raffled
shall conduct the JDR proceedings and trial.
TRIAL
RULE 119
Q: What is a trial?
A: Trial is the examination before a competent tribunal
according to the laws of the land, of facts put in issue in a
case for the purpose of determining such issue.
After a plea of not guilty is entered, the accused shall have
at least fifteen (15) days to prepare for trial. The trial shall
commence within 30 days from receipt of pre-trial order
(Sec. 1, Rule 119).
Note: Denial of right to prepare is reversible error; the proper
remedy from a judgment of conviction under such case is appeal
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
and not certiorari nor habeas corpus (Montilla v. Arellano, G.R. No.
123872, Jan. 30, 1998).
Q: What is a hearing?
A: Hearing is not confined to trial, but embraces several
stages of litigation including the pre- trial stage. A hearing
does not necessarily imply the presentation of oral or
documentary evidence in open court but that the parties
are afforded an opportunity to be heard (Republic v.
Sandiganbayan, 416 SCRA 133, 2003).
Q: How must trial proceed?
A: The trial once commenced, shall continue from day to
day as far as practicable until terminated. However, it may
be postponed for a reasonable period of time for good
cause. (Sec. 2, Rule 119)
Note: The granting or refusal of an application for continuance or
postponement of the trial lies within the sound discretion of the
court and the discretion will not be interfered with by mandamus
or by appeal, unless there is grave abuse of discretion.
Q: What is the purpose of the continuous trial system?
A: The purpose of the system is to expedite the decision or
resolution of cases in the trial courts considering the
mandate of Section 12, Article XVIII of the 1987
Constitution. Supreme Court Circular No. 1-89 requires that
the judge shall conduct the trial with utmost dispatch, with
judicious exercise of the court's power to control the trial to
avoid delay and that a strict policy on postponements
shall be observed.
Note: The SC adopted the continuous trial system as a mode of
judicial fact-finding and adjudication conducted with speed and
dispatch so that trials are held on the scheduled dates without
postponement, the factual issues for a trial well defined at pre-trial
and the whole proceedings terminated and ready for judgment
within ninety (90) days from the date of initial hearing, unless for
meritorious reasons an extension is permitted.
Q: Petitioner assails the decision of the Court of Appeals
affirming the decision of the trial court in denying his
petition for postponement of the trial on account of the
absence of his witnesses to appear during trial. In deciding
the case against petitioner, the Court of Appeals held that
the trial court did not act in grave abuse of its discretion as
the petitioner failed to substantiate his motion for
postponement as required by the Rules. Is the Court of
Appeals correct?
A: Yes, as it is a well-settled rule that motions for
postponement are addressed to the sound discretion of the
court and this discretion would not be interfered with
unless it has been clearly abused. In order for the absence
of a witness to justify the postponement of a trial, the
following must be shown: First, that the witness is really
material and appears to the court to be so; second, that the
party who applies has been guilty of no neglect; and third,
that the witness can be held at the time to which the trial
has been deferred, and, incidentally, that no similar
evidence could be obtained. Further, the affidavit should
328
 CRIMINAL PROCEDURE

contain a statement that the facts to which it is claimed the

absent witness would testify cannot be proved by any other Note: The order of the trial may be modified when the accused
witnesses who are available, or by the exercise of diligence, admits the act or omission charged in the complaint or information
could have been made available to the applicant at the but interposes a lawful defense (Sec. 11(e), Rule 119; Sec 1(e), Rule
118).
trial. (Casilan vs. Gancayco, et. al., G.R. No. L-10525, August
29, 1958)
Q: What is reverse trial and when may it be resorted to?
Explain briefly. (2007 Bar Question)
Q: In an action to declare null and void the order of
respondent judge in dismissing the criminal cases,
A: When the accused admits the act or omission charged in
petitioner claims that said judge has lost jurisdiction over
the complaint or information but interposes a lawful
the criminal cases by failure of the interested parties to
defense, the trial court may allow the accused to present
secure a written authority from the Chief Justice of the
his defense first and thereafter give the prosecution an
Supreme Court authorizing the adjournment of the trial
opportunity to present its rebuttal evidence. A departure
thereof beyond the three-month period provided in Rule
from the order of the trial is not reversible error as where it
22, section 3 of the Revised Rules of Court. Is the petition
was agreed upon or not seasonably objected to, but not
meritorious?
where the change in order of the trial was timely objected
by the defense.
A: No, as the applicable rule on adjournments and
postponements in criminal cases is found not in Rule 22,
Where the order of the trial set forth was not followed by
section 3 but in Rule 119, section 2. The only limitation
the court to the extent of denying the prosecution an
expressed in Rule 119 is that the postponement of the trial
opportunity to present evidence, the judgment is a nullity.
of a criminal case must be for 'good cause' shown and for
If there is not enough evidence to prove the accuseds guilt
such period of the time as 'the ends of justice and the right
beyond reasonable doubt, then the defense should file
of the defendant to a speedy trial require. The greater
demurrer to evidence.
flexibility of the rule on postponements in criminal actions
was obviously based on the criterion in the early case of
Q: May the court, in the furtherance of justice, grant
U.S. v. Ramirez that the trial court is in criminal proceedings
either party the right and opportunity to adduce
"the guardian of the rights of the accused as well as those
additional evidence?
of the people at large, and should not unduly force him to
trial, nor for light causes jeopardize the rights or interests of
A: Yes. If the judge is not satisfied with the evidence
the public" and that "the discretion which the trial court
adduced in criminal cases, he may, on his motion, call
exercises must be judicial and not arbitrary" consistent with
witnesses or recall some of the same witnesses for the
the ends of justice and the granting of sufficient time and
purpose of satisfying his mind with the reference to
opportunity to both prosecution and defense to present
particular facts involved in the case.
their witnesses and the right of the accused to a speedy
trial. (People vs. Catolico, 38 SCRA 389, 1971)
Q: When is the case deemed submitted for decision?
Q: What is the order of trial in criminal cases?
A: Upon the admission of the parties evidence-in-chief,
rebuttal and sur-rebuttal proof, the case is deemed
A: In criminal cases, unless the accused admits the act or
submitted for decision unless the court directs them to
omission charged in the complaint or information but
argue their respective memoranda.
interposes a lawful defense, the trial shall proceed in the
following order:
INSTANCES WHEN PRESENCE OF THE ACCUSED REQUIRED
1. The prosecution shall present evidence to prove the
charge and, in the proper case, the civil liability.
Q: What are the instances when the presence of the
2. The accused may present evidence to prove his
accused is required by law?
defense, and damages, if any, arising from the
issuance of a provisional remedy in the case.
A: The only instances when the presence of the accused is
3. The prosecution and the defense may, in that order,
required:
present rebuttal and sur-rebuttal evidence unless the
1. Upon arraignment and in entering plea;
court, in furtherance of justice, permits them to
2. During trial when his presence is necessary for the
present additional evidence bearing upon the main
purpose of identification;
issue.
Note: Rebuttal evidence is any competent evidence to 3. Upon promulgation of judgment except for light
explain, repel, counteract or disprove the adversarys proof. It offenses
is receivable only where new matters have been developed 4. When the court with due notice requires so (People v.
by the evidence of one of the parties and is generally limited Joven De Grano, et. al, GR No. 167710, June 5, 2009).
to a reply to new points.
Q: Is there a time limit for the trial of criminal cases?
4. Upon admission of the evidence of the parties, the
case shall be deemed submitted for decision unless A: GR: Trial shall not exceed 180 days from the first day of
the court directs them to argue orally or to submit trial.
written memoranda (Sec. 11, Rule 119).

329 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

XPNs: b. proceedings with respect to other criminal

1. Those governed by the rules on summary
procedure;
2. Those where the penalty prescribed by law does
not exceed 6 months imprisonment or a fine of
P1,000 or both; and
3. Those authorized by the Chief Justice of the SC
(Sec. 6, R.A. 8493, Speedy Trial Act).
Note: Commencement of trial may be extended based on the
following conditions:
1. For the 180 days, for the first 12 calendar month period
from the effectivity of the law.
2. 120 days for the second 12 month period.
3. 80 days for the third 12 month period. (Sec. 9, R.A.
8493)
Q: What is the effect if the court failed to comply with the
mandates of the Speedy Trial Act to terminate the case
within the 180 day period?
A: The judge may be charged administratively, or may be
fined, suspended or removed unless his failure to comply
with the speedy trial act is for reasons not attributable to
him.
Q: What are the cases where the time limitation is
inapplicable?
A:
1. Criminal cases covered by the Rule on Summary
Procedure;
2. When the offended party is about to depart with no
definite date of return;
3. Child abuse cases (Sec. 32, R.A. 7610 or The Child
Abuse Act);
4. Violations of Dangerous Drugs Law; and
5. Kidnapping, robbery by a band, robbery against
banking or financial institution, violation of Carnapping
Act and other heinous crimes (Herrera, Vol. IV, p. 796,
2007 ed.).
charges against the accused;
c. extraordinary remedies against interlocutory
orders;
d. pre-trial proceedings; provided, that the delay
does not exceed thirty (30) days;
e. orders of inhibition, or proceedings relating to
change of venue of cases or transfer from other
courts;
f. a finding of the existence of a prejudicial
question;
g. reasonably attributable to any period, not to
exceed thirty (30) days, during which any
proceeding concerning the accused is actually
under advisement.
2. Any period of delay resulting from the absence or
unavailability of an essential witness;
3. Any period of delay resulting from the mental
incompetence or physical inability of the accused to
stand trial;
4. If the information is dismissed upon motion of the
prosecution and thereafter a charge is filed against the
accused for the same offense, any period of delay
from the date the charge was dismissed to the date
the time limitation would commence to run as to the
subsequent charge had there been no previous
charge;
5. A reasonable period of delay when the accused is
joined for trial with a co-accused over whom the court
has not acquired jurisdiction, or, as to whom the time
for trial has not run and no motion for separate trial
has been granted; and
6. Any period of delay resulting from a continuance
granted by any court motu proprio, or on motion of
either the accused or his counsel, or the prosecution, if
the court granted the continuance on the basis of its
findings set forth in the order that the ends of justice
served by taking such action outweigh the best
interest of the public and the accused in a speedy trial
(Sec. 3, Rule 119).

Q: What are the duties of the Presiding Judge under the Q: In a petition assailing the validity of the order of the
continuous trial system? trial court, the petitioner insists that the judge acted with
grave abuse of discretion when it dismissed the criminal
A: case against the accused on the ground that that the 30-
1. Adhere faithfully to the session hours prescribed by day time limit set by Rule 119 had been breached. It is,
laws; further, claimed by the petitioner that their pending
2. Maintain full control of the proceedings; petition for transfer of venue should interrupt
3. Effectively allocate and use time and court resources proceedings and, therefore, halt the running of the 30-day
to avoid court delays; and time limit. Is the petition meritorious?
4. Continuous trial on a weekly or other short-term trial
calendar at earliest possible time. A: No, as the delay that may be excluded from the time
limit in Sec. 3 of Rule 119 within which trial must
commence are those resulting from proceedings
Q: What are the exclusions in computation of time within concerning the accused. The time involved in the
which trial must commence? proceedings in a petition for transfer of venue can only be
excluded from said time limit if it was the accused who
A: instituted the same. Further, the petition for transfer of
1. Any periods of delay resulting from other proceedings venue cannot interrupt proceedings unless a TRO or writ of
concerning the accused, including but not limited to preliminary injunction has been issued in accordance with
the following: Section 7 of Rule 65 as said petition is akin to a petition for
a. examination of the physical and mental condition certiorari. (Mari vs. Gonzales, G.R. No. 187728, September
of the accused; 12, 2011)

UNIVERSITY OF SANTO TOMAS 330

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE

2. Files a motion solely for delay, knowing it to be

Q: What are the factors for granting continuance? frivolous and without merit;
3. Knowingly makes a false statement in order to obtain
A: Whether or not: continuance which he knows to be false and which is
1. The failure to grant continuance would make a material to the granting of a continuance; and
continuation of the proceeding impossible or result in 4. Willfully fails to proceed to trial without justification
a miscarriage of justice; or (Sec. 8, Rule 119).
2. the case, as a whole, is novel, unusual and complex, or
it is unreasonable to expect adequate preparation Q: Distinguish examination of defense witness from
within the periods of time established therein (Sec. 4, examination of prosecution witness before trial.
Rule 119).
A:
Q: What are the prohibited grounds for a continuance? Examination of Defense Examination of
Witness Prosecution Witness
A:
1. congestion of the courts calendar or due to lack of The accused may have Conducted in the
diligent preparation; his witness examined presence of the accused
2. failure to obtain available witnesses on the part of the conditionally in his unless he waived his
prosecutor (Sec. 4, Rule 119) behalf before trial upon right after reasonable
motion with notice to notice.
Q: What is the time limit following an order for new trial? all other parties.

A: GR: If the accused is to be tried again pursuant to an Grounds: Grounds:

order for a new trial, the trial shall commence within 30
days from notice of order. 1. Witness is so sick 1. The witness is
to afford too sick to
XPN: If the 30-day period becomes impractical due to reasonable ground appear at trial
unavailability of the witnesses and other factors, it may to believe that he
be extended by the court but in no case should it exceed will not be able to 2. He has to
180 days from notice of said order for new trial (Sec. 5, attend the trial leave the
Rule 119). Philippines
2. He resides more with no
Q: What are the duties of the public attorney where than 100 definite date
accused is imprisoned? kilometers and has of return;
no means to
A: It shall be his duty to do the following: attend the same, (Sec. 15, Rule 119)
1. Shall promptly undertake to obtain the presence of
the prisoner for trial or cause a notice to be served on 3. Other similar
the person having custody of the prisoner requiring circumstances
such person to so advice the prisoner of his right to exist that would
demand trial. make him
2. Upon receipt of that notice, the custodian of that unavailable or
prisoner shall promptly advice the prisoner of the prevent him from
charge and of his right to demand trial. If at any time attending trial (Sec.
thereafter the prisoner informs his custodian that he 12, Rule 119)
demands such trial, the latter shall cause notice to that
effect to be sent promptly to the public attorney. Conducted before any Conducted only before
3. Upon receipt of such notice, the public attorney shall judge, member of bar in the judge or the court
promptly seek to obtain the presence of the prisoner good standing or before where the case is
for trial. any inferior court. pending.
4. When the custodian of the prisoner receives from the
public attorney a properly supported request for the No right to cross Right to cross-examine.
availability of the prisoner for purposes of trial, the examine Hence such statements
prisoner shall be made available accordingly (Section 7, of the prosecution
Rule 119). witnesses may
thereafter be admissible
Q: What are the acts of a counsel, attorney, or prosecutor in behalf of or against
which would warrant a sanction? the accused.

May be made if the

A:
witness resides more
1. Knowingly allowing the case to be set on trial without
than 100 km from the
disclosing that a necessary witness would be
place of trial. (Secs. 13
unavailable for trial;

331 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
and 15, Rule 119)
Q: What is deposition?
A: It is the testimony of a witness taken upon oral questions
or written interrogatories, in open court, but in pursuance
of a commission to take testimony issued by a court, or
under a general law or court rule on the subject, and
reduced to writing and duly authenticated and intended to
be used in preparation and upon the trial of a civil or
criminal prosecution.
Q: What are the purposes of taking deposition?
A:
1. Greater assistance to the parties in ascertaining the
truth and checking and preventing perjury;
2. Provide an effective means of detecting and exposing
false, fraudulent claims and defenses;
3. Make available in a simple, convenient and
inexpensive way, facts which otherwise could not be
proved except with greater difficulty;
4. Educate the parties in advance of trial as to the real
value of their claims and defenses thereby
encouraging settlements,
5. Expedite litigation;
6. Prevent delay;
7. Simplify and narrow the issues; and
8. Expedite and facilitate both preparation for and trial.
Q: How is the trial of several accused conducted?
A: GR: When two or more persons are jointly charged with
an offense, they shall be tried jointly. This rule is so
designed as to preclude a wasteful expenditure of judicial
resources and to promote an orderly and expeditious
disposition of criminal prosecutions.
XPN: The court, upon motion of the prosecutor or any
of the defendants, may order a separate trial for one or
more accused (Sec. 16, Rule 119).
Note: In the interest of justice, a separate trial may be granted
even after the prosecution has finished presenting its evidence in
chief (Joseph v. Villaluz, G.R. No. L-45911, Apr. 11, 1979). If a
separate trial is granted, the testimony of one accused imputing
the crime to his co-accused is not admissible against the latter. In
joint trial, it would be admissible if the latter had an opportunity
for cross-examination.
REQUISITE BEFORE TRIAL CAN BE SUSPENDED ON
ACCOUNT OF ABSENCE OF WITNESS
Q: What are the requisites before a trial can be suspended
on account of the absence of a witness?
A: That the:
1. witness is material and appears to the court to be so;
2. party who applies has been guilty of no neglect;
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
3. witnesses can be had at the time to which the trial is
deferred and no similar evidence could be obtained;
and
4. affidavit showing the existence of the above
circumstances must be filed.
Q: What are the remedies of the accused where a
prosecuting officer without just cause secures
postponements of the trial against his protest beyond a
reasonable period of time?
A:
1. Mandamus to compel a dismissal of the information;
or
2. If he is restrained of his liberty, by habeas corpus to
obtain his freedom.
TRIAL IN ABSENTIA
Q: May a trial proceed in the absence of the accused?
A: Yes. Section 14 (2), Article 3 of the Constitution provides
that trial may proceed notwithstanding the absence of the
accused provided that he has been duly notified and his
failure to appear is unjustifiable. (Parada v. Veneracion,
A.M. No.RTJ-96-1353, March 11, 1997)
Q: What are the requisites for trial in absentia?
A:
1. The accused has been arraigned;
2. He has been notified of the trial; and
3. His failure to appear is unjustified (Sec. 14(2), Art. III,
1987 Constitution of the Phiippines; Bernardo v.
People, 520 SCRA 332, April 4, 2007)
Q: What are the effects of trial in absentia?
A: The accused waives the right to present evidence and
cross-examine the witnesses against him. The accuseds
waiver does not mean, however, that the prosecution is
deprived of the right to require the presence of the accused
for purposes of identification by the witnesses which is vital
for conviction of the accused, except where he
unqualifiedly admits in open court after his arraignment
that he is the person named as defendant in the case on
trial.
Q: Assailing the validity of the decisions of both trial and
appellate court, the petitioner questions the decisions of
both courts convicting him for violation of B.P.22 on the
ground that he was denied due process of law as the trial
court proceeded with his trial and promulgated the
assailed decision in absentia. Is the petition meritorious?
A: No, as the holding of trial in absentia is authorized by
law. Under Section 14 (2), Article III of the 1987
Constitution, after arraignment, trial may proceed
332
 CRIMINAL PROCEDURE
notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is
unjustifiable. The failure of the accused to appear before
the court in spite of notice has been considered a waiver of
their right to be present at their trial, and the inability of
the court to notify them of the subsequent hearings did not
prevent it from continuing with their trial. They were
deemed to have received notice. Thereafter, the trial court
had the duty to rule on the evidence presented by the
prosecution against all the accused and to render its
judgment accordingly (Bernardo vs. People, G.R. No.
166980, April 4, 2007).
REMEDY IF ACCUSED IS NOT BROUGHT TO TRIAL WITHIN
THE PRESCRIBED PERIOD
Q: What is the remedy available to the accused if he is not
brought to trial within the period prescribed by the Rules
of Court?
A: The information may be dismissed on motion of the
accused on the ground of denial of his right to speedy trial.
The dismissal shall be subject to the rules on double
jeopardy (Sec. 9, Rule 119). 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 Sec. 3 of Rule 119.
REQUISITES FOR THE DISCHARGE OF THE ACCUSED TO
BECOME A STATE WITNESS
Q: Who is a State witness?
A: He is one of two or more persons jointly charged with
the commission of a crime but who is discharged with his
consent as such accused so that he may be a witness for
the State (People v. Ferrer, G.R. No. 102062, Mar. 14, 1996).
Q: Who may be admitted to the program of witness
protection, security and benefit act (RA 6981)?
A: Any person who has witnessed or has knowledge or
information on the commission of a crime and has testified
or is testifying or about to testify before any judicial or
quasi-judicial body, or before any investigating authority,
may be admitted into the Program, Provided, That:
1. the offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code,
or its equivalent under special laws;
2. his testimony can be substantially corroborated in its
material points;
3. he or any member of his family within the second civil
degree of consanguinity or affinity is subjected to
threats to his life or bodily injury or there is a
likelihood that he will be killed, forced, intimidated,
harassed or corrupted to prevent him from testifying,
or to testify falsely, or evasively, because or on
account of his testimony; and
4. he is not a law enforcement officer, even if he would
be testifying against the other law enforcement
officers. In such a case, only the immediate members
of his family may avail themselves of the protection
provided for under this Act (Sec. 3, RA 6981).
Q: What are the requisites before an accused may become
a State witness?
A:
1. There is absolute necessity for the testimony of the
accused whose discharge is requested;
The discharge or exclusion of a co-accused from the
information in order that he may be utilized as state
witness is expedient that must be availed of only when
there is absolute necessity for the testimony of the
accused whose discharge is requested, and not when
his testimony would simply corroborate or otherwise
strengthen the evidence in the hands of the
prosecution. (People v. Borja, 106 Phil. 1111).
2. There is no other direct evidence available for the proper
prosecution of the offense committed, except the
testimony of the said accused;
It is essential, before a defendant is discharged from the
information for the purpose of utilizing him as a witness
for the government, that there is no other direct
evidence available for the proper prosecution of the
offense committed, except the testimony of said
accused (U.S. vs. Mandangan, 52 Phil. 62).
3. The testimony of said accused can be substantially
corroborated in its material points;
The testimony of the accused sought to be discharged
must be susceptible of substantial corroboration in its
material points. An example of this is where the
testimony of the discharged witness was amply
supported by the fact that various articles of the stolen
property were found secreted in the place where he
indicated them to be. (U.S. vs. Mananquil, 25 Phil. 75).
4. Said accused does not appear to be the most guilty; and
The discharged defendant need not be the least guilty;
all the law requires, in order to discharge an accused
and to use him as a state witness, is that the defendant
whose exclusion is requested does not appear to be the
most guilty, not necessarily that he was the least guilty
(People vs. Faltado, 84 Phil. 89).
5. Said accused has not at any time been convicted of any
offense involving moral turpitude (Sec. 17, Rule 119).
Moral turpitude includes any act done contrary to
justice, honesty, modesty or good morals. It is an act of
baseness, vileness, or depravity in the private and social
duties which a man owes his fellowmen and to society
in general contrary to the accepted and customary rule
of right and duty between man and woman or conduct
contrary to justice, honesty, modesty, or good morals.
Q: Petitioner claims that the public respondent judge
erred when it ordered the discharge of private
respondents as state witnesses when the latter were
already charged along with the other accused, including
333 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

him, before they were admitted to the Witness Protection
under Rep. Act No. 6981. Petitioner argues that if this
were to be allowed, the same is tantamount to permitting
the prosecution to supplant with its own the courts
exercise of discretion on how a case over which it has
acquired jurisdiction, will proceed. Is the petition
meritorious?
2. Evidence adduced in support of the discharge shall
automatically form part of the trial (People v. Feliciano,
G.R. No. 136258, Oct. 10, 2001); and
3. If the court denies the motion to discharge the
accused as State witness, his sworn statement shall be
inadmissible in evidence (People v. Feliciano, G.R. No.
136258, Oct. 10, 2001)

A: No, as the discharge of an accused under Rep. Act No. XPNs:

6981 is separate and distinct from Rule 119. Rule 119 does
not support the proposition that the power to choose who
shall be a state witness is an inherent judicial prerogative.
The Rules of Court have never been interpreted to be
beyond change by legislation designed to improve the
administration of our justice system. R.A. No. 6981 is one of
the much sought penal reform laws to help government in
its uphill fight against crime. What is only required under
Rep. Act No. 6981 is compliance with Sec. 14 of Rule 110
requiring that the exclusion of the accused be made only
upon motion by the prosecutor, with notice to the offended
party and with leave of court. (Yu vs. Judge RTC of Tagaytay
City, G.R. No. 142848, June 30, 2006)
Q: Is the discharge of an accused as a state witness
necessary before the prosecution be allowed to present
him as a prosecution witness?
A: No, as there is nothing in the rules that require that the
accused be discharged first as a state witness before he
becomes a prosecution witness. While it is true that an
accused cannot be made a hostile witness for the
prosecution, for to do so would compel him to be a witness
against himself, he may, however, testify against a co-
defendant where he has agreed to do so, with full
knowledge of his right and the consequences of his acts.
There is a difference between testifying as state witness
and testifying as a co-accused. In the first, the proposed
state witness has to qualify as a witness for the state, after
which he is discharged as an accused and exempted from
prosecution. In the second, the witness remains an accused
and can be made liable should he be found guilty of the
criminal offense. (People vs. Chaves, G.R. No. 131377,
February 11, 2003)
1. When the accused fails or refuses to testify
against his co-accused in accordance with his
sworn statement constituting the basis of his
discharge (Sec. 18, Rule 119).
2. Failure to testify refers exclusively to defendants
will or fault,
3. Where an accused who turns states evidence on
a promise of immunity but later retracts and fails
to keep his part of the agreement, his confession
of his participation in the commission of the
crime is admissible as evidence against him
(People v. Beberino GR No L-23213 Oct. 28, 1977).
Note: Discharge under this rule is only one of the modes to be a
State witness. Other modes are:
1. The Witness Protection Program of R.A. 6981;
2. The power of the Ombudsman to grant immunity under
Sec. 17, R.A. 6770.
3. Immunity under Presidential Decree No. 749
4. Immunity under Executive Order No. 14-A
5. Immunity under the Comprehensive Dangerous Drugs
Act of 2002, R.A. 9165
6. Immunity and Protection under the Human Security Act
of 2007, R.A. 9372
Q: What are the effects if the discharged accused retracts
or fails to comply with his part of the agreement?
A: If the retraction or failure to testify is solely his fault, his
confession of his participation in the commission of the
crime is admissible as evidence (People v. Beberino, G.R. No.
L-23092, Oct. 28, 1977).
Q: Distinguish Witness Protection Program from Sec. 17,
Rule 119 of the Rules of Court.

Q: When should the application for discharge of the state A:

witness be made? Witness Protection Rules of Court
Program
A: It should be made upon motion of the prosecution The offense in which It has no qualification. It
before resting its case. the testimony is to be applies to all felonies.
used is limited only to
grave felony under the
RPC or its equivalent
under special law.
EFFECTS OF DISCHARGE OF ACCUSED AS STATE WITNESS Any member of the This is not required.
family of the person
Q: What are the effects of the order discharging the applying for admission
accused as a State witness? within the second civil
degree of consanguinity
A: GR: or affinity is subjected
1. Discharge of accused operates as an acquittal and bar to threat of his life or
to further prosecution for the same offense (Sec. 18, bodily injury or there is
Rule 119) a likelihood that he will
be killed, forced,

UNIVERSITY OF SANTO TOMAS 334

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE

intimidated, harassed or DEMURRER TO EVIDENCE

corrupted to prevent
him from testifying or Q: What is demurrer to evidence?
to testify falsely or
evasively on account of A: It is an objection by one of the parties in an action to the
his testimony. effect that the evidence which his adversary produced is
There is no such insufficient in point of law, whether true or not, to make
The witness applying is limitation. One can be out a case or sustain the issue. (Nicolas v. Sandiganbayan,
not a law enforcement discharged as a witness 544 SCRA 324, Feb. 11, 2008)
officer. whether he is a law
enforcement officer or Note: A demurrer to evidence, is actually a motion to dismiss that
not. is filed by the accused after the prosecution has rested its case.
(Bar 1994)
The immunity is granted The immunity is granted
by DOJ. by the court.
Q: What is the rule on demurrer of evidence?
The witness is The witness so
automatically entitled discharged must still A:
to certain rights and apply for the enjoyment How made
benefits. of said rights and 1. Court on its own initiative; or
benefits in the DOJ. 2. Upon filing of the accused for demurrer of
The witness need not He is charged in court evidence:
be charged elsewhere. as one of the accused as a. With leave of court; or
stated in the b. Without leave of court
information. When made
No information may The charges against him After the prosecution rests its case
thus be filed against the shall be dropped and Ground
witness. the same operates as an Insufficiency of evidence
acquittal. Effect
The court may dismiss the case (Sec. 23, Rule 119)
Note: Both requires that there is absolute necessity for the
testimony and that there is no other direct evidence available for Note: If the demurrer is sustained by the court, the order of
the prosecution of the offense committed dismissal is tantamount to an acquittal, hence it is NOT appealable.
On the other hand, the order of denial of the demurrer to evidence
Q: When will discharge of an accused operate as an is not reviewable by appeal or certiorari before judgment, unless
acquittal? the denial is attended by grave abuse of discretion, in which case
such denial may be assailed through a petition for certiorari.
A: GR: The discharge of the accused shall amount to an
acquittal and shall be a bar to future prosecution for the Q: Distinguish the effect of filing a demurrer with leave of
same offense. court from filing a demurrer without leave?

XPN: If the accused fails or refuses to testify against his A:

co-accused in accordance with his sworn statement Demurrer With Leave Demurrer Without
constituting the basis of the discharge (Sec. 18, Rule of Court Leave of Court
119). If leave of court is If demurrer is denied, it
denied, the accused is tantamount to a
Q: What shall be done when mistake has been made in may proceed with waiver of the accuseds
charging the proper offense? presenting his evidence right to present
evidence and as a
A: When it becomes manifest at any time before judgment consequence the case
that a mistake has been made in charging the proper will be submitted for
offense and the accused cannot be convicted of the offense judgment on the basis
charged or any other offense necessarily included therein, of the evidence for the
the accused shall not be discharged if there appears to be a prosecution.
good cause to detain him. In such case, the court shall The motion for leave of If demurrer is granted,
commit the accused to answer for the proper offense and court to file a demurrer the case will be
dismiss the case upon filing of the proper information (Sec. to evidence shall dismissed, and will
19, Rule 119). specifically state its result to an acquittal of
grounds and shall be the accused (Sec.23,
Note: This rule is predicated on the fact that an accused has the filed within a non- Rule 119).
right to be informed of the nature and cause of the accusation extendible period of
against him, and to convict him of an offense different from that five (5) days after the
charged in the complaint or information would be an unauthorized prosecution rests its
denial of that right.
case. The prosecution

335 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

may oppose the motion the law pronounced by the court on the action or question
within a non-extendible before it (Sec. 1, Rule 120).
period of five (5) days
from its receipt. REQUISITES OF A JUDGMENT

If leave of court is Q: What are the requisites of judgment?

granted, the accused
may file the demurrer A: It must be:
to evidence within ten 1. Written in official language;
(10) days. The 2. Personally and directly prepared by the judge;
prosecution may 3. Signed by the judge; and
however, oppose the 4. Contain clearly and distinctly a statement of the facts
demurrer to evidence and the law upon which it is based (Sec. 1, Rule 120).
within a non-extendible
period of ten (10) days Note: The jurisdictional requirements before a judgment may be
from the receipt of the validly rendered are jurisdiction over the subject matter, territory
demurrer. and the person of the accused. (Antiporda, Jr. v. Garchitorena, 321
SCRA 551).
(Sec. 23, Rule 119)
Q: What is the difference between a judgment and a ratio
Q: What is the purpose of leave of court in demurrer to
decidendi?
evidence?
A: A judgment pronounces the disposition of the case;
A: To determine whether or not the defendant in a criminal
while a ratio decidendi provides the basic reason for such
case has filed the demurrer merely to stall the proceedings
determination.
(People v. Mahinay, G.R. No. 109613, July 17, 1995).
Q: How is entry of judgment made?
Q: What is the distinction between demurrer to evidence
and motion to dismiss?
A: The recording of the judgment or order in the book of
entries of judgments shall constitute its entry. The record
A:
shall contain the dispositive part of the judgment order and
Demurrer to Evidence Motion to Dismiss
shall be signed by the clerk, with a certificate that such
Assumes that the It is based on the denial judgment or order has become final and executory (Sec. 2,
prosecution has already of the accuseds right to Rule 36).
rested its case filed by speedy trial
the accused with or characterized by Q: What is mittimus?
without leave of court unreasonable, vexatious
and submits the case and oppressive delay A: It is a process issued by the court after conviction to
for judgment on the without fault of the carry out the final judgment, such as commanding a prison
evidence of the accused, or by warden to hold the accused in accordance with the terms
prosecution. unjustified statements of judgment.
that unreasonably
prolonged the trial. Q: What is reasonable doubt?
It may be filed in good It is filed without leave
faith with or without of court and before the A: Reasonable doubt is defined as the state of the case
leave of court. prosecution has rested which, after full consideration of all evidence, leaves the
its case. mind of the judge in such a condition that he cannot say
that he feels an abiding conviction to a moral certainty of
the truth of the charge.

JUDGMENT Q: What is acquittal?

RULE 120
Q: What is judgment?
A: It is an adjudication by the court that the accused is
guilty or not guilty of the offense charged and the
imposition of the proper penalty and civil liability, if any. It
is a judicial act which settles the issues, fixes the rights and
liabilities of the parties, and is regarded as the sentence of
A: An acquittal is a finding of not guilty based on the merits,
that is, the accused is acquitted because the evidence does
not show that his guilt is beyond reasonable doubt, or a
dismissal of the case after the prosecution has rested its
case upon motion of the accused on the ground that the
evidence fails to show beyond reasonable doubt that the
accused is guilty.

UNIVERSITY OF SANTO TOMAS 336

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
Note: It is well settled that acquittal, in a criminal case is
immediately final and executory upon its promulgation, and that
accordingly, the State may not seek its review without placing the
accused in double jeopardy (Barbers v. Laguio Jr., AM No. RTJ-00-
1568, February 15, 2001).
Q: Is there a maximum duration for the courts sentence?
A: Yes. In the service of sentence, the maximum duration of
the courts sentence shall not be more than three-fold the
length of time corresponding to the most severe of the
penalties imposed upon the accused, and such maximum
shall in no case exceed forty years.
CONTENTS OF JUDGMENT
Q: What are the contents of the judgment?
A: The judgment must state:
1. If of conviction
a. Legal qualification of the offense constituted by
the acts committed by the accused, and the
aggravating or mitigating circumstances attending
its commission;
b. Participation of the accused whether as principal,
accomplice or accessory;
c. Penalty imposed upon the accused; and
d. Civil liability or damages caused by the wrongful
act or omission unless a separate civil action has
been reserved or waived. (Sec.2, Rule 120)
2. If of acquittal
a. Whether the evidence of the prosecution
absolutely failed to prove the guilt of the accused
or merely failed to prove his guilt beyond
reasonable doubt; and
b. In either case, the judgment shall determine if the
act or omission from which the civil liability might
arise did exist (Sec. 2, Rule 120).
Q: Can the courts impose penalties in the alternative?
A: No. It is true that under many of the provisions of the
penal law, the court has the discretion or alternative of
imposing one or another of different penalties; but
certainly it cannot be argued that, because the judge has
the discretion of fixing one or another penalty, he can
impose both in the alternative. He must fix positively and
with certainty the particular penalty (U.S. vs. Chong Ting, 23
Phil. 120).
Q: What is the rule regarding award of indemnity to
offended party in spite of acquittal?
A: In case of acquittal, unless there is a clear showing that
the act from which the civil liability might arise did not
exist, the judgment must make a finding on the civil liability
of the accused in favor of the offended party (Section 2,
par. 2, Rule 120).
Note: The judgment of acquittal extinguishes the liability of the
accused for damages only when it includes a declaration that the
facts from which the civil liability might arise did not exist. Thus,
the civil liability is not extinguished by acquittal where the acquittal
is based on reasonable doubt (PNB vs. Catipon, 98 Phil. 286).
Q: What is the rule regarding a judgment for two or more
offenses charged in the complaint or information?
A: When two or more offenses are charged in a single
complaint or information but the accused fails to object to
it before trial, the court may convict him of as many
offenses as are charged and proved, and impose on him the
penalty of each offense, setting out separately the findings
of the fact and law in each offense (Sec. 3, Rule 120).
Note: Failure of the accused to object to the duplicity of offense
charged in the complaint or information, is deemed a waiver
thereof. (Herrera, Vol. IV, p. 882, 2007 ed)
Q: What is the rule regarding a judgment in case of
variance between the offense charged and proved?
A: GR: An accused can be convicted of an offense only
when it is both charged and proved; if it is not charged
although proved, or if it is not proved although charged, the
accused CANNOT be convicted thereof.
XPN: Where there is a variance between the offense
charged in the complaint or information and that
proved AND the offense as charged is included in or is
necessarily includes the offense proved, the accused
shall be convicted of the offense proved which is
included in the offense charged, or of the offense
charged which is included in the offense proved (Sec.
4).
Note: An accused cannot be convicted of an offense not charged or
included in the information for this will be in violation of the
constitutional right of the accused to be informed of the nature of
the offense charged against him (Herrera, Vol. IV, p. 882, 2007 ed.).
Q: What is the effect of the judgment of conviction upon a
minor?
A: The courts shall promulgate the sentence and ascertain
any civil liability which the accused may have incurred. The
sentence, however, shall be suspended without need of
application pursuant to P.D. 603 or the Child and Youth
Welfare Code. In which case, the child shall have been
committed under the care of the DSWD or any other
accredited government institution until he reaches the age
of twenty one (21) or until the court so determines (Sec. 40,
R.A. 9344, Juvenile Justice and Welfare Act of 2006).
Q: What are the exceptions for suspension of sentence of
youthful offenders?
A: When such minor offender:
1. has enjoyed previous suspension of sentence;
2. is convicted of a crime punishable by death or life
imprisonment;
3. is convicted by a military tribunal; or
4. is already of age at the time of sentencing even if he
was a minor at the time of the commission of the
crime (Declarador v. Gubaton, G.R. No. 159208, Aug.
18, 2006).
337 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What if the minor already reached the age of majority
upon the promulgation of his sentence?
A: He is no longer entitled to the suspension of sentence.
However, the time he spent during the period of his
confinement shall be credited to his actual service of
sentence. Furthermore, he shall still be entitled to the
privileged mitigating circumstance of minority (People v.
Francisco, G.R. No. 102976, Oct. 25, 1995; R.A. 9344,
Juvenile Justice and Welfare Act of 2006).
PROMULGATION OF JUDGMENT; INSTANCES OF
PROMULGATION OF JUDGMENT IN ABSENTIA
Q: What is promulgation of judgment?
A: It is the official proclamation or announcement of
judgment. It consists of reading the judgment or sentence
in the presence of the accused and any judge of the court
rendering the judgment. (Sec. 6, Rule 120)
Q: How is judgment promulgated?
A: It is promulgated by reading it in the presence of the
accused and any judge of the court which it was rendered,
or when the judgment is one of conviction for a light
offense, in the presence of the defendants counsel or
representative (Sec. 6, Rule 120).
Note: A judgment or sentence does not become a
judgment or sentence in law until the same has been read
or announced to the defendant or has become a part of the
record of the court (U.S. vs. CFI of Manila, 24 Phil. 321).
Q: Who promulgates the judgment?
A: GR: The judge of the court who renders the judgment.
XPNs: When:
1. The judge is absent or outside the province or city
judgment may be promulgated by the clerk of
court; and
2. Accused is confined or detained in another city
judgment may be promulgated by the executive
judge of the RTC having jurisdiction over the place
of confinement or detention (Sec. 6, Rule120).
Note: Where there is not merely physical absence of the judge who
penned the decision, but the cessation or termination of his
incumbency as such judge, there is no judgment validly entered in
such a case (Ong Siu vs. Paredes, 17 SCRA 661).
Q: Is the presence of the accused indispensable in the
promulgation of judgment?
A: No. The promulgation shall still be made by: (1)
recording such judgment in the criminal docket, and (2)
serving him a copy thereof in his last known address or
through his counsel. If judgment is one of conviction and
the accused is absent without justifiable cause, the court
shall order his arrest and he shall lose the remedies
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
available in the rules against judgment and his bail shall be
forfeited.
However, the accused may surrender and file a motion for
leave of court to avail of these remedies within fifteen (15)
days from the promulgation of judgment. If such motion is
granted, he may avail of these remedies within fifteen (15)
days from notice of such order granting the motion (Sec. 6,
Rule 120). He must however, state the reasons for his
absence at the promulgation and prove that his absence
was for a justifiable cause.
Q: What are the instances when judgment may be
promulgated even if the accused is not present?
A:
1. A judgment of acquittal.
2. Judgment is for a light offense, in which case judgment
may be promulgated in the presence of the counsel for
the accused or a representative.
3. Accused fails to attend the promulgation despite due
notice or if he jumped bail or escaped from prison.
Notice must be given to the bondsmen, warden,
accuseds bailor and counsel (Sec. 6, Rule 120).
Q: What is the rule on modification of judgment?
A: A judgment of conviction may, upon motion of the
accused, be modified or set aside before it becomes final or
before appeal is perfected. (Sec.7, Rule 120)
Note: A judgment of acquittal becomes final immediately after
promulgation and cannot be recalled for correction or amendment
(People vs. Sison, 105 Phil. 1248).
Q: What is the remedy if the judgment fails to award civil
liability?
A:
1. Appeal;
2. Certiorari; or
3. Mandamus
WHEN DOES JUDGMENT BECOME FINAL
Q: When does judgment become final?
A: Judgment becomes final:
1. After the lapse of time for perfecting an appeal
XPN: Death penalty is imposed. The Court of Appeals
shall automatically review the judgment before it
becomes final.
2. When the sentence has been partially or totally
satisfied
3. When the accused has expressly waived in writing his
right to appeal
4. When the accused has applied for probation (Sec 7,
Rule 120)
Q: When may the trial court lose jurisdiction even before
the lapse of the 15 day period to appeal?
338
 CRIMINAL PROCEDURE

A: The trial court loses jurisdiction even before the lapse of

the 15 day period when:
1. The defendant voluntarily submits to the execution
of the judgment;
2. When the defendant perfects an appeal;
3. Defendant withdraws his appeal;
4. Accused expressly waives in writing his right to
appeal;
5. Accused files for probation.

NEW TRIAL OR RECONSIDERATION

RULE 121
GROUNDS

New trial Reconsideration

Rehearing of a case already decided but before the judgment of May be filed in order to correct errors of law or fact in the
conviction therein rendered has become final, whereby errors of law judgment. It does not require any further proceeding.
or irregularities are expunged from the record or new evidence is
introduced, or both steps are taken
Grounds: Grounds:
1. Errors of law or irregularities prejudicial to the substantial rights
of the accused have been committed during the trial. 1. Errors of law; or
2. New and material evidence has been discovered which the 2. Errors of fact (Sec. 3, Rule121).
accused could not, with reasonable diligence, have discovered
and produced at the trial and which if introduced and admitted Note: The principle underlying this rule is to afford the trial court
would probably change the judgment (Sec. 2, Rule121). the opportunity to correct its own mistakes and to avoid
3. Other grounds which the court may consider in the exercise of unnecessary appeals from being taken. The grant by the court of
reconsideration should require no further proceedings, such as
its jurisdiction :
taking of additional proof.
a. Negligence or incompetency of counsel or mistake which is
so gross amounting to deprivation of the substantial rights
of the accused and due process (Aguilar v. Court of
Appeals GR No. 114282, November 28, 1995);
b. Recantation of a witness where there is no evidence
sustaining the judgment of conviction other than the
testimony of such witness (Tan Ang Bun v. Court of
Appeals GR No.L- 47747);
c. Improvident plea of guilty which may be withdrawn;
d. Disqualification of attorney de officio to represent accused
in trial.
e. Interest of justice (Sec. 6, Rule 121 )

Q: When should a motion for new trial or consideration be newly discovered evidence maybe filed in the appellate
filed? court.

A: It should be filed with the trial court within 15 days from REQUISITES BEFORE A NEW TRIAL MAY BE GRANTED ON
the promulgation of the judgment. If an appeal has already GROUND OF NEWLY DISCOVERED EVIDENCE
been perfected, a motion for new trial on the ground of

339 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What are the requisites before a new trial may be

granted on the ground of newly discovered evidence ? A:
Recantation Affidavit of Desistance
A: Berry Rule: A witness who previously The complainant states that
1. The evidence was discovered after trial; gave a testimony he did not really intend to
2. Such evidence could not have been discovered and subsequently declares that institute the case and he is
produced at the trial even with the exercise of his statements are untrue no longer interested in
reasonable diligence; publicly (People v. testifying or prosecuting.
3. It is material, not merely cumulative, corroborative or Ballabare, G.R. No. 108871,
impeaching; and Nov. 19, 1996).
4. The evidence is of such a weight that it would probably GR: It is not a ground for It is not by itself a ground
change the judgment if admitted (Herrera, Vol. IV, p. granting a new trial and are for dismissal of the action
935, 2007 ed.). hardly given weight (People v. Ramirez, G.R.
Nos. 150079-80, June 10,
Note: A new trial may be granted at any time before the judgment XPN: When there is no 2004). It is merely an
of conviction becomes final: evidence sustaining the additional ground to
1. on motion of the accused
judgment of conviction buttress the defense and
2. on motion of the court but with consent of the accused.
other than the testimony of not a sole consideration for
the recanting witness (Tan acquittal (People v.
Q: May errors or ignorance of counsel be a ground for new
Ang Bun v. CA, G.R. No. L- Ballabare, G.R. No. 108871,
trial or reconsideration?
47747, Feb. 15, 1990). Nov. 19, 1996).
A: GR: Mistakes or errors of counsel in the conduct of his
case are not grounds for new trial. This rule is the same EFFECTS OF GRANTING A NEW TRIAL OR
whether the mistakes are the result of ignorance, RECONSIDERATION
inexperience, or incompetence.
Q: What are the effects of granting a new trial or
XPN: If the incompetence, ignorance or inexperience reconsideration?
of counsel is so great and the error committed as a
result thereof is so serious that the client, who A: In all cases, when the court grants a new trial or
otherwise has a good cause, is prejudiced and denied reconsideration, the original judgment shall be set aside or
his day in court, the litigation may be reopened to give vacated and a new judgment rendered accordingly.
the client another chance to present his case
(Abrajano v. CA, G.R. No. 114282, Oct. 13, 2000). In addition, when new trial is granted on the ground of:
1. Errors of law or irregularities committed during
Q: What should be the form of a motion for new trial or the trial
reconsideration? a. All proceedings and evidence not affected by
such errors and irregularities shall stand;
A: The motion must: b. Those affected shall be set aside and taken
1. be in writing; anew; and
2. be filed in court; c. In the interest of justice, the court may allow
3. state the grounds on which it is based; and the introduction of additional evidence.
4. if the motion for new trial is based on newly
discovered evidence, it must be supported by the 2. Newly discovered evidence
affidavits of the witness by whom such evidence is a. The evidence already taken shall stand;
expected to be given or duly authenticated copies of b. Newly discovered and other evidence as the
documents which it is proposed to introduce in court may, in the interest of justice, allow to
evidence (Sec. 4, Rule 121). be introduced, shall be taken and considered
together with the evidence already in the
Note: While the rule requires that an affidavit of merit be attached record (Sec. 6, Rule121).
to support a motion for new trial based on newly discovered
evidence, the rule also allows that the defect of lack of merit may Note: The effect of granting a new trial is not to acquit the accused
be cured by the testimony under oath of the defendant at the of the crime of which the judgment finds him guilty but precisely to
hearing of the motion (Paredes v. Borja, G.R. No. L-15559, Nov. 29, set aside said judgment so that the case may be tried de novo as if
1961). no trial had been had before.

Q: What is recantation? Q: Distinguish new trial from reopening of the case.

A: Recantation is the public and formal withdrawal by a A:

witness of his prior statement (People v. Ballabare, G.R. No. New Trial Re-opening of the Case
108871, Nov. 19, 1996). Filed after judgment is Made by the court
rendered but before the before the judgment is
Q: Distinguish recantation from desistance. finality thereof. rendered in the exercise

UNIVERSITY OF SANTO TOMAS 340

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
of sound discretion.
Made by the court on Does not require the
motion of the accused consent of the accused;
or at its own instance may be at the instance
but with the consent of of either party who can
the accused. thereafter present
additional evidence.
APPLICATION OF NEYPES DOCTRINE IN CRIMINAL CASES
Q: What is the effect of filing a motion for new trial or
reconsideration on the period of perfecting an appeal?
A: A fresh period of fifteen (15) days to appeal is counted
from the denial of the motion for reconsideration or new
trial (Neypes v. CA, G.R. No. 141524, Sept. 14, 2005).
Q: Does the fresh period rule apply to criminal cases?
A: Yes. The raison dtre for the "fresh period rule" is to
standardize the appeal period provided in the Rules and do
away with the confusion as to when the 15-day appeal
period should be counted. The Court held in the case of Yu
v. Samson-Tatad, G.R. No. 170979, Feb. 9, 2011 that the
pronouncement of a fresh period to appeal should
equally apply to the period for appeal in criminal cases
under Section 6 of Rule 122, for the following reasons:
First, BP 129, as amended, the substantive law on
which the Rules of Court is based, makes no distinction
between the periods to appeal in a civil case and in a
criminal case.
Second, the provisions of Section 3 of Rule 41 of the
1997 Rules of Civil Procedure and Section 6 of Rule 122
of the Revised Rules of Criminal Procedure mean
exactly the same. There is no substantial difference
between the two provisions insofar as legal results are
concerned the appeal period stops running upon the
filing of a motion for new trial or reconsideration and
starts to run again upon receipt of the order denying
said motion for new trial or reconsideration. It was this
situation that Neypes addressed in civil cases. No
reason exists why this situation in criminal cases
cannot be similarly addressed.
Third, while the Court did not consider in Neypes the
ordinary appeal period in criminal cases under Section
6, Rule 122 of the Revised Rules of Criminal Procedure
since it involved a purely civil case, it did include Rule
42 of the 1997 Rules of Civil Procedure on petitions for
review from the RTCs to the Court of Appeals (CA), and
Rule 45 of the 1997 Rules of Civil Procedure governing
appeals by certiorari to this Court, both of which also
apply to appeals in criminal cases, as provided by
Section 3 of Rule 122 of the Revised Rules of Criminal
Procedure.
APPEAL
RULE 122
Q: What is an appeal?
A: It is a proceeding for review by which the whole case is
transferred to the higher court for a final determination. It
is not an inherent right of a convicted person. The right of
appeal is statutory. Only final judgments and orders are
appealable.
Q: Who may appeal?
A: Any party may appeal from a judgment or final order,
unless the accused will be placed in double jeopardy (Sec. 1,
Rule 122).
Q: When should appeal be taken?
A: It must be taken within fifteen (15) days from
promulgation of judgment or from notice of final order
appealed from (Sec. 6, Rule122).
EFFECT OF AN APPEAL
Q: What is the effect of an appeal?
A: An appeal in a criminal case opens the whole case for
review and this includes the review of penalty, indemnity,
and the damages involved. Consequently, on appeal, the
appellate court may increase the penalty and indemnity of
damages awarded by the trial court although the offended
party had not appealed from said award, and the party who
sought a review of the decision was the accused.
Q: What are the modes of appeal that may be taken from
a judgment convicting the accused?
A:
1. The accused may seek a review of said judgment
as regards both criminal and civil actions; or
2. The complainant may appeal only with respect to
the civil action either because the lower court has
refused or failed to award damages or because the
award made is unsatisfactory to him.
WHERE TO APPEAL
Q: Where is the appeal taken?
A: To the:
1. RTC, in cases decided by the MTC, MTCC, MeTC, or
MCTC;
2. CA or to the SC in the proper cases provided by law, in
cases decided by the RTC;
3. SC, in cases decided by the CA (Sec. 2, Rule122).
Q: May the prosecution appeal a judgment of acquittal?
A: GR: No, because the accused would be subjected to
double jeopardy.
XPNs:
1. If the dismissal is made upon motion or with the
express consent of the accused.
341 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

XPNs to the XPN:

a. Insufficiency of the prosecution evidence; or
b. Violation of the accuseds right to speedy
trial.

2. If the dismissal is not an acquittal or based upon

consideration of the evidence on the merits;
3. If the question is purely legal so that should the
dismissal be found incorrect, the case shall be
remanded for further proceedings to determine
the guilt or innocence of the accused; and
4. If there is a showing of grave abuse of discretion
amounting to lack or excess of jurisdiction,
certiorari under Rule 65 may be available

HOW IS APPEAL TAKEN (AMENDED BY AM 00-5-03-SC, October 3, 2002)

Q: How is appeal taken?

A:
Appeal to From decision of How taken
RTC MTC 1. File a notice of appeal with the
MTC;
2. Serve a copy of the notice to the
adverse party.
CA RTC 1. File a notice of appeal with the RTC;
1. Exercising its original jurisdiction for 2. Serve a copy of the notice to the
offenses with imposable penalties less than adverse party.
reclusion perpetua or life imprisonment
2. Exercising its appellate jurisdiction File a petition for review under Rule 42.
3. Where the imposable penalty is: 1. File a notice of appeal with the RTC;
a. life imprisonment or reclusion 2. Serve a copy of the notice to the
perpetua; or adverse party.
b. a lesser penalty for offenses
committed on the same occasion or
which arose from the same occurrence
that gave rise to the offense
punishable reclusion perpetua or life
imprisonment
4. Where the imposable penalty is death Automatic review to CA (Sec. 10, Sec.
122)
SC 1. All other appeals except: Petition for review on certiorari via Rule
a. Decision of RTC where the imposable 45
penalty is life imprisonment or
reclusion perpetua or a lesser penalty
for offenses committed on the same
occasion or which arose from the same
occurrence that gave rise to the
offense punishable by reclusion
perpetua or life imprisonment; and
b. Decisions of RTC imposing the penalty
of death.
2. CA Automatic review (Sec. 13, Rule 124)

UNIVERSITY OF SANTO TOMAS 342

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE

a. When it finds that death penalty

should be imposed
b. Where it imposes reclusion perpetua, Notice of appeal (Sec. 13, Rule 124)
life imprisonment or a lesser penalty
3. Sandiganbayan File a notice of appeal
a. Exercising its appellate jurisdiction for
offenses where the imposable penalty
is reclusion perpetua or life
imprisonment
b. Exercising its original jurisdiction for File a notice of appeal (Sec. 13, Rule 124;
offenses where the imposable penalty Sec. 5, PD 1606 as amended by R.A.
is reclusion perpetua and life 8249)
imprisonment
c. Cases not falling in paragraphs a and b Petition for review on certiorari via Rule
above 45

Note: By virtue of R.A. 9346, the imposition of death penalty is prohibited.

Q: What are the modes of review recognized by the Rules a. He voluntarily submits to the jurisdiction of the
of Court? court; or
b. He is otherwise arrested within fifteen (15) days
A: from notice of judgment against him.
1. Ordinary appeal;
2. Petition for review; EFFECT OF APPEAL BY ANY OF SEVERAL ACCUSED
3. Petition for review on certiorari;
4. Automatic appeal. Q: What are the effects of appeal by any of the several
accused?
Q: How is notice of appeal served?
A:
A: GR: Through personal service made upon the adverse 1. An appeal taken by one or more of several accused
party or his counsel. shall not affect those who did not appeal, except
insofar as the judgment of the appellate court is
XPN: If personal service cannot be made, through: favorable and applicable to the latter;
1. registered mail; or 2. The appeal of the offended party from the civil aspect
2. by substituted service pursuant to Secs. 7 and 8, shall not affect the criminal aspect of the judgment or
Rule 13 (Sec. 4, Rule122). order appealed from; and
3. By publication, made in a newspaper of general 3. Upon perfection of the appeal, the execution of the
circulation in the vicinity once a week for a period judgment or final order appealed from shall be stayed
not exceeding 30 days. (Pamaran, p.636) as to the appealing party (Sec. 11, Rule122).

Note: The appellee may waive his right to notice of appeal.
However, the appellate court may, in its discretion, entertain an
appeal notwithstanding failure to give such notice if the interests
of justice so require (Sec. 5, Rule122).
Q: What is the effect of perfection of appeal with regard
to the jurisdiction of the court?
A: Once an appeal in a case, whether civil or criminal, has
been perfected, the court a quo loses jurisdiction over the
case both over the record and over the subject of the case
(Director of Prisons v. Teodoro, G.R. No. L-9043, July 30,
1955). Failure to serve a copy to the prosecutor is not a
defect which can nullify the appeal or prejudice the
unquestionable rights of the accused.
Note: In People v. Olivo, G.R. No. 177768, July 27, 2009, an accused
has benefitted from the acquittal of his co-accused despite the
formers failure to appeal from the judgment.
Q: When may appeal be withdrawn?
A:
1. An appellant may withdraw his appeal before the
record has been forwarded by the clerk of court to the
proper appellate court as provided by Sec. 8, Rule 122,
in which case the judgment shall become final (Sec.
12).
2. The court may also, in its discretion, allow the
appellant to withdraw his appeal, provided a motion
to that effect is filed before the rendition of the
judgment in the case on appeal (Sec. 12, Rule122).

Q: What are the effects of failure to prosecute an appeal? GROUNDS FOR DISMISSAL OF APPEAL

A: Q: What are the grounds for the dismissal of an appeal?

1. Judgment of the court becomes final.
2. Accused cannot be afforded the right to appeal unless: A:

343 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

1. Failure of the record on appeal to show on its face that A: It is a warrant issued for more than one offense. It is
the appeal was taken within the period fixed by these invalid because it violates the Constitution.
Rules;
2. Failure to file the notice of appeal or the record on Note: There must be strict compliance with the constitutional and
appeal within the period prescribed by these Rules; statutory requirements. Otherwise, it is void. No presumptions of
3. Failure of the appellant to pay the docket and other regularity are to be invoked in aid of the process when an officer
undertakes to justify it (People v. Veloso, G.R. No. 23051, Oct. 20,
lawful fees as provided in section 5 of Rule 40 and
1925). It will always be construed strictly without going the full
section 4 of Rule 41; length of requiring technical accuracy.
4. Unauthorized alterations, omissions or additions in the
approved record on appeal as provided in section 4 of NATURE OF SEARCH WARRANT
Rule 44;
5. Failure of the appellant to serve and file the required It is in the nature of a criminal process and may be invoked
number of copies of his brief of memorandum within only in furtherance of public prosecutions. Search warrants
the time provided by these Rules; have no relation to civil process or trials and are not
6. Absence of specific assignment of errors in the available to individuals in the course of civil proceedings,
appellants brief, or of page references to the record nor for the maintenance of a mere private right. It is
as required in section 13, paragraphs (a), (c), (d) and (f) interlocutory in character because it leaves something
of Rule 44; more to be done, which is the determination of the guilt of
7. Failure of the appellant to take the necessary steps for the accused.
the correction or completion of the record within the
time limited by the court in its order; DISTINGUISH FROM WARRANT OF ARREST
8. Failure of the appellant to appear at the preliminary
conference under Rule 48 or to comply with orders, Warrant of Arrest Search Warrant
circulars, or directives of the court without justifiable
Order directed to the Order in writing in the
cause; and
peace officer to execute name of the People of
9. The fact that the order or judgment appealed from is
the warrant by taking the Philippines signed by
not appealable (Rule 50, Rule122)
the person stated the judge and directed to
therein into custody so the peace officer to
SEARCH AND SEIZURE
that he may be bound to search personal property
RULE 126
answer for the described therein and to
commission of the bring it to court.
Q: What is search warrant?
offense.
Does not become stale. Validity is for 10 days
A: It is an:
only.
1. order in writing issued in the name of the People of
May be served on any To be served only in
the Philippines;
day and at any time of daytime unless the
2. signed by a judge;
day or night. affidavit alleges that the
3. directed to a peace officer, commanding him to search
property is on the person
for personal property described therein; and
or in the place to be
4. bring it before the court (Sec. 1, Rule 126).
searched.
Note: The warrant must name the person upon whom it is to be Searching examination of The judge must
served except in those cases where it contains a descriptio witnesses is not personally conduct an
personae such as will enable the officer to identify the person. The necessary. examination of the
description must be sufficient to indicate clearly the proper person complainant and the
upon whom it is to be served (People v. Veloso GR No L-23051, witnesses.
October 20, 1925). Judge is merely called Examination must be
upon to examine and probing. Not enough to
Q: What is a general warrant? evaluate the report of merely adopt the
the prosecutor and the questions and answers
A: A general warrant is a search warrant which vaguely evidence asked by a previous
describes and does not particularize the personal investigator
properties to be seized without a definite guidelines to the
searching team as to what items might be lawfully seized, Note: In general, the requirements for the issuance of a search
thus giving the officers of the law discretion regarding what warrant are more stringent than the requirements for the issuance
articles they should seize. of a warrant of arrest. The violation of the right to privacy produces
a humiliating effect which cannot be rectified anymore. This is why
Note: A general warrant is not valid as it infringes on the there is no other justification for a search, except a warrant. On the
constitutional mandate requiring particular description of the other hand, in a warrant of arrest, the person to be arrested can
things to be seized. always post bail to prevent the deprivation of liberty.

Q: What is scatter-shot search warrant? Q: Distinguish search from seizure.

UNIVERSITY OF SANTO TOMAS 344

2013 GOLDEN NOTES
 CRIMINAL PROCEDURE
A: Search is an examination of a mans house or other
buildings or premises or of his person for the discovery of
contraband or illicit or stolen property or some evidence of
guilt to be used in the prosecution of a criminal action for
some offense with which he is charged. Seizure on the
other hand is the physical taking of a thing into custody.
APPLICATION FOR SEARCH WARRANT, WHERE FILED
Q: Where should an application for a search warrant be
filed?
A: GR: It should be filed with the court within whose
territorial jurisdiction the crime was committed.
XPNs:
1. For compelling reasons, any court within the
judicial region where the crime was committed if
the place of the commission of the crime is
known, or any court within the judicial region
where the warrant shall be enforced
2. However, if the criminal action has been filed, the
application shall only be made in the court where
the criminal action is pending (Sec. 2, Rule126);
3. In case of search warrant involving heinous
crimes, illegal gambling, illegal possession of
firearms and ammunitions as well as violations of
the Comprehensive Dangerous Drugs Act of 2002,
the Intellectual Property Code, the Anti- Money
Laundering Act of 2001, the Tariff and Customs
Code, the Executive judges and whenever they
are on official leave of absence or are not
physically present in the station, the Vice- Judges
of RTCs of Manila and Quezon City shall have the
authority to act on the application filed by the
NBI, PNP and the Anti- Crime Task Force (ACTAF)
(Administrative Matter No. 99-10-09-SC).
Note: The application shall be personally endorsed by
the heads of such agencies and shall particularly
describe therein the places to be searched and/ or the
property or things to be seized as prescribed in the
Rules of Court. The Executive Judges and the Vice-
Exceutive Judges concerned shall issue the warrants if
justified, which may be served outside the territorial
jurisdiction of said courts (Sps. Marimla v. People, G.R.
No. 158467, Oct. 16, 2009).
Q: Barney filed a complaint with the NBI against Ted
alleging that the latter was engaged in the reproduction
and distribution of counterfeit products originally
produced by Barney. Said products, allegedly, was
produced in Cavite but sold in Manila. Thus, NBI applied
with the RTC of Manila for warrants to search Teds
premises in Cavite. The RTC of Manila issued a search
warrant covering Teds premises at Cavite. The NBI served
the search warrants on Teds premises and seized the said
counterfeit products. Thereafter, Ted filed a motion to
quash the search warrant questioning the propriety of the
venue where the warrant was enforced. Should the
motion to quash be granted?
A: No. As a general rule, search warrants issued by courts
may be effectuated only within their territorial jurisdiction.
Thus, the RTC of Manila does not have the authority to
issue a search warrant for offenses committed in Cavite.
Nonetheless, this case involves a transitory or continuing
offense of unfair competition.
Teds imitation of the general appearance of Barneys
goods was done allegedly in Cavite. It sold the goods
allegedly in Metro Manila. The alleged acts would
constitute a transitory or continuing offense. Thus, clearly,
under Sec. 2 (b), Rule 126; Sec. 168, R.A. 8293 and Art. 189
(1), RPC, Barney may apply for a search warrant in any
court where any element of the alleged offense was
committed, including any of the courts within the NCR
(Sony Computer Entertainment, Inc. v. Supergreen, Inc., G.R.
No. 161823, Mar. 22, 2007).
Q: What are the requisites before a search warrant may
issue?
A:
1. It must be issued upon probable cause;
2. Probable cause must be determined by the issuing
judge personally;
3. The judge must have personally examined, in the form
of searching questions and answers, the applicant and
his witnesses;
4. The search warrant must particularly describe or
identify the property to be seized as far as the
circumstances will ordinarily allow;
5. The warrant issued must particularly describe the
place to be searched and the persons or things to be
seized;
6. It must be in connection with one specific offense;
7. The sworn statements together with the affidavits
submitted by witnesses must be attached to the
record. (Prudente v. Dayrit, G.R. No. 82870, Dec. 14,
1989)
Note: The warrant must not have been issued more than ten (10)
days prior to the search made pursuant thereto.
PROBABLE CAUSE
Q: What is probable cause?
A: It refers to the facts and circumstances which could lead
a reasonably discreet and prudent man to believe that an
offense has been committed and that the objects sought in
connection with the offense are in the place sought to be
searched (Burgos v. Chief of Staff, G.R. No. L-65334, Dec.
26, 1984).
Q: What is the basis of probable cause?
A: The basis must be the personal knowledge of the
complainant or the witnesses he may produce and not
based on mere hearsay. The test of sufficiency of a
deposition or affidavit is whether it has been drawn in a
manner that perjury could be charged thereon and the
affiant be held liable for damage caused.
345 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Mere affidavits of the complainant and his witnesses are
not sufficient. The judge has to take the depositions of the
complainant and the witnesses in writing and attach them
to the record (Mata v. Bayona, G.R. No. L-50720, Mar. 26,
1984).
Q: What are the factors to be considered in the
determination of probable cause?
A:
1. Time of the application in relation to the alleged
offense committed. The nearer the time at which the
observation of the offense is alleged to have been
made, the more reasonable the conclusion of
establishment of probable cause (Asian Surety
Insurance v. Herrera, G.R. No. L-25232, Dec. 20, 1973).
2. There must be competent proof of particular acts or
specific omissions but only the best evidence under
the circumstances is required (People v. Judge Estrada,
G.R. No. 124461, Sept. 26, 1998).
Q: What does the multi-factor balancing test in
determining probable cause require?
A: It requires the officer to weigh the manner and intensity
of the interference on the right of the people, the gravity of
the crime committed, and the circumstances attending the
incident.
Q: Does the absence of probable cause on a particular
article invalidate the entire search warrant?
A: No. Such particular article may be severed from the rest
of the search warrant, provided that the remaining parts
meet the requirements of probable cause and particularity.
PERSONAL EXAMINATION BY JUDGE OF THE APPLICANT
AND WITNESS
Q: What are the requisites of personal examination by the
judge?
A:
1. The judge must examine the witness personally;
2. The examination must be under oath;
3. The examination must be reduced to writing in the
form of searching questions and answers (Marinas v.
Siochi, G.R. Nos. L-25707 & 25753-25754, May 14,
1981);
4. It must be probing and exhaustive, not merely
routinary or pro forma (Roan v. Gonzales, G.R. No.
71410, Nov. 25, 1986); and
5. It is done ex-parte and may even be held in the secrecy
of chambers (Mata v. Bayona, G.R. No. L-50720, Mar.
26, 1984).
Q: What is the form of search warrant?
A: The search warrant must be in writing and must contain
such particulars as the name of the person against whom it
is directed, the offense for which it was issued, the place to
be searched and specific things to be seized.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: The warrant must name the person upon whom it is to be
served except in those cases where it contains a descriptio
personae such as will enable the officer to identify the person. The
description must be sufficient to indicate clearly the proper person
upon whom it is to be served (People v. Veloso, G.R. No. L-23051,
Oct. 20, 1925).
Q: What is the lifetime of a search warrant?
A: A warrant is valid for ten (10) days from the date of its
issue. After such time, it is void (Sec. 10). A search warrant
can be used only once, thereafter it becomes functus oficio,
except when the search conducted on one day was
interrupted, in which case the same may be continued
under the under the same warrant the following day if not
beyond the ten (10) day period.
Q: What is the rule with respect to the time of making a
search?
A: GR: A search warrant must be served at day time.
XPN: A search warrant may be made at night when it is
positively asserted in the affidavit that the property is on
the person or in the place ordered to be searched. The
affidavit making such assertion must itself be sufficient as
to the fact so asserted, for if the same is based upon
hearsay, the general rule shall apply. A search warrant
conducted at night without direction to that effect is an
unlawful search. The same rule applies where the warrant
left blank the time for making the search.
Q: What is the knock and announce principle? Discuss.
A: It states that officers implementing a search warrant
must announce their presence, identify themselves to the
accused and to the persons who rightfully have possession
of the premises to be searched, and show to them the
search warrant to be implemented by them and explain to
them said warrant in a language or dialect known to and
understood by them. The requirement is not a mere
procedural formality but is of the essence of the substantial
provision which safeguards individual liberty.
Note: A lawful entry is the indispensable predicate of a reasonable
search. A search would violate the constitutional guarantee against
unreasonable search and seizure if the entry was illegal, whether
accomplished by force, or by threat or show of force or obtained
by stealth, or coercion.
Q: When is an unannounced intrusion into the premises
permissible?
A: When:
1. a party whose premises or is entitled to the possession
thereof refuses, upon demand, to open it;
2. such person in the premises already knew of the
identity of the officers and of their authority and
persons;
3. the officers are justified in the honest belief that there
is an imminent peril to life or limb; or
346
 CRIMINAL PROCEDURE
4. those in the premises, aware of the presence of
someone outside, are then engaged in activity which
justifies the officers to believe that an escape or the
destruction of evidence is being attempted.
Note: The exceptions above are not exclusive or conclusive. There
is no formula for the determination of reasonableness. Each case is
to be decided on its own facts and circumstances (People v. Huang
Zhen Hua, G.R. No. 139301, Sept. 29, 2004).
Q: What are the rules to be observed in case of search of a
house or room?
A: In order to insure that the execution of the warrant will
be fair and reasonable, and in order to insure that the
officer conducting the search shall not exceed his authority
or use unnecessary severity in executing the search
warrant, as well as for the officers own protection against
unjust accusations, it is required that the search be
conducted in the presence of the:
1. Lawful occupant of the place to be searched;
2. Any member of his family;
3. In their absence, in the presence of two (2) witnesses
of sufficient age and discretion residing in the same
locality (Sec. 8, Rule126).
Note: A public officer or employee who exceeds his authority or
uses unnecessary severity in executing the warrant is liable under
Art. 129, RPC.
PARTICULARITY OF PLACE TO BE SEARCHED AND THINGS
TO BE SEIZED
Q: What are the tests to determine particularity of the
place to be searched?
A:
1. When the description therein is as specific as the
ordinary circumstance will allow (People v. Rubio, GR
No L-35500, Oct. 27, 1932);
2. When the description express a conclusion of fact, not
of law which the warrant officer may be guided in
making the search and seizure;
3. When the things described therein are limited to those
which bear direct relation to the offense for which the
warrant is being issued.
Q: What is the purpose of describing with particularity the
place to be searched and the persons or things to be
seized?
A: The purpose of the rule is to leave the officers of the law
with no discretion regarding what articles they shall seize,
to the end that unreasonable searches and seizures may
not be made- that abuses may not be committed (Stonehill
v. Diokno, G.R. No. L-19550, June 19, 1967).
PERSONAL PROPERTY TO BE SEIZED
Q: What are the kinds of personal properties to be seized
by virtue of a search warrant?
A:
1. Subject of the offense;
2. Stolen or embezzled and other proceeds or fruits of
the offense; and
3. Used or intended to be used as the means of
committing an offense (Sec. 3, Rule126).
Note: It is not required that the property to be seized should be
owned by the person against whom the search warrant is directed.
It is sufficient that the person against whom the warrant is directed
has control or possession of the property sought to be seized
(Burgos v. Chief of Staff, G.R. No. L-65332, Dec. 26, 1984).
Q: What may be seized during a search incidental to an
arrest of a person even without a search warrant?
A:
1. Dangerous weapons; and
2. Anything which may be used as proof of the
commission of an offense.
EXCEPTIONS TO SEARCH WARRANT REQUIREMENT
Q: What are instances of a valid warrantless search?
A:
1. Search incident to lawful arrest This includes
searching the person who is arrested, in order to find
and seize the things connected with the crime as fruits
or as the means by which it was committed.
Note: Search made without warrant cannot be justified as an
incident of arrest unless the arrest itself was lawful.
Immediate control test A search incidental to a lawful
warrantless arrest may extend beyond the person
where the exigencies of the situation justify a
warrantless search for dangerous weapons and to
prevent the arrestee from destroying evidence of the
crime within reach (People v. Musa, G.R. No. 95329,
Jan. 27, 1993)
2. Consented search (waiver of right) Consent cannot
be presumed simply because the accused failed to
object to the search. To constitute a waiver, the
following requisites must concur:
a. The right exists;
b. The person involved had knowledge, actual or
constructive, of the existence of such rights; and
c. Actual intention to relinquish such rights (People
v. Burgos, G.R. No. 92739, Aug. 2, 1991).
3. Search of moving vehicle May validly be made
without a search warrant because the vessel or aircraft
can quickly move out of the jurisdiction before such
warrant could be secured (People v. Lo Ho Wing, G.R.
No. 88017, Jan. 21, 1991).
4. Checkpoints; body checks in airport Searches
conducted in checkpoints are valid for as long as they
are warranted by the exigencies of public order and
are conducted in a way least intrusive to motorists. For
as long as the vehicle is neither searched nor its
occupants subjected to a body search, and the
inspection of the vehicle is limited to a visual search,
said routine checks cannot be regarded as violative of
347 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
an individuals right against unreasonable search
(People v. Vinecario, G.R. No. 141137, Jan. 20, 2004).
In body checks in airports, passengers attempting to
board an aircraft routinely pass through metal
detectors; their carry-on baggage as well as checked
luggage are routinely subjected to x-ray scans. Should
these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine
what the objects are. There is little question that such
searches are reasonable, given their minimal
intrusiveness, the gravity of the safety interests
involved, and the reduced privacy expectations
associated with airline travel. Indeed, travelers are
often notified through airport public address systems,
signs, and notices in their airline tickets that they are
subject to search and, if any prohibited materials or
substances are found, such would be subject to
seizure. These announcements place passengers on
notice that ordinary constitutional protections against
warrantless searches and seizures do not apply to
routine airport procedures (People v. Johnson, G.R. No.
138881, Dec. 18, 2000).
5. Plain view situation The plain view doctrine
authorizes a search and a seizure without a warrant.
For the doctrine to apply, the following requisites must
be met:
a. There must have been a legal presence in
the place where the search is made;
b. The evidence was discovered inadvertently
by an officer with a right to be where he is;
c. The evidence is immediately apparently
illegal; and
d. There is no need for any further search to
obtain the evidence (People v. Concepcion,
361 SCRA 540; People v. Sarap, 399 SCRA
503; People v. Go; 411 SCRA 81)
6. Stop and frisk situations This is a limited protective
search of the outer clothing of a person to determine
the presence of weapons. Probable cause is not
required but a genuine reason (not mere suspicion)
must exist, in the light of the officers experience and
surrounding circumstances, to warrant the belief that
the persons has concealed weapons (Malacat v. Court
of Appeals, 283 SCRA 159). Its object is either to:
a. determine the identity of a suspicious
individual; or
b. maintain the status quo momentarily while
the police officer seeks to obtain more
information.
Note: The officer may search the outer clothing of the person
in an attempt to discover weapons which might be used to
assault him (Manalili v. CA, G.R. No. 113447, Oct. 9, 1997).
7. Enforcement of custom laws
Q: The search warrant authorized the seizure of
undetermined quantity of shabu. During the service of
the search warrant, the raiding team also recovered a kilo
of dried marijuana leaves wrapped in newsprint. The
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
accused moved to suppress the marijuana leaves as
evidence for the violation of Sec. 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were not covered
by the search warrant. The State justified the seizure of
the marijuana leaves under the plain view doctrine.
There was no indication of whether the marijuana leaves
were discovered and seized before or after the seizure of
the shabu. If you are the judge, how would you rule the
motion to suppress? (2008 Bar Question)
A: It should be granted. The search warrant violates the
constitutional and statutory requirement that should
particularly describe the person or things to be seized (Sec.
2, Art. III, 1987 Constitution; Sec. 2, Rule 126). The plain
view doctrine cannot be invoked because the marijuana
leaves were wrapped in newsprint. Besides the marijuana
leaves are not the subject of the search warrant. There was
no evidence as to whether the marijuana leaves were
discovered and seized before or after the seizure of the
shabu. If they were discovered after the seizure of the
shabu, then they could not have been seized in plain view.
The confiscation of the marijuana leaves must not be
upheld, hence rendering the same inadmissible in evidence
against the accused.
REMEDIES FROM UNLAWFUL SEARCH AND SEIZURE
Q: Who may question the validity of search and seizure?
A: It can be contested only by the party whose rights have
been impaired thereby, and that the objection to an
unlawful search and seizure is purely personal and cannot
be availed by third parties (Stonehill v. Diokno, G.R. L-
19550, June 19, 1967).
Q: What are the remedies against an unlawful search?
A:
1. Motion to quash the search warrant;
2. Motion to suppress as evidence the objects illegally
taken (exclusionary rule any evidence obtained
through unreasonable searches and seizures shall be
inadmissible for any purpose in any proceeding);
3. Replevin, if the objects are legally possessed; and
4. Certiorari, where the search warrant is a patent nullity.
Note: The remedies are alternative. If a motion to quash is denied,
a motion to suppress cannot be availed consequently. The illegality
of the search warrant does not call for the return of the things
seized, the possession of which is prohibited by law. However,
those personalties seized in violation of the constitutional
immunity whose possession is not illegal or unlawful per se ought
to be returned to their rightful owner or possessor.
Q: In what court may a motion to quash search warrant be
filed?
A:
1. It may be filed and acted upon only by the court where
the action has been instituted;
2. If no criminal action has been instituted, it may be filed
in and resolved by the court that issued the search
warrant. However, if such court failed to resolve the
motion and a criminal case is subsequently filed in
348
 CRIMINAL PROCEDURE

another court, the motion shall be resolved by the

latter court (Sec. 14, Rule 126). Q: What are the cases wherein attachment in available?

Q: State the rule with respect to waiver of legality and A:

admissibility of a search warrant.
A: Objection to the legality of the search warrant, or as to
the admissibility of the evidence obtained is deemed
waived where no objection of the search warrant was
raised during the trial of the case nor to the admissibility of
the evidence obtained through said warrant (Demaisip v.
CA, G.R. No. 89393, Jan. 25, 1991).
PROVISIONAL REMEDIES IN CRIMINAL CASES
RULE 127
NATURE
1. When the accused is about to abscond from the
Philippines
2. When the criminal action is based on a claim for
money or property embezzled or fraudulently
misapplied or converted to the use of the accused who
is a public officer, or any officer of a corporation, or an
attorney, factor, broker, agent, or clerk, in the course
of his employment as such, or by any person in a
fiduciary capacity, or for a willful violation of a duty;
3. When the accused has concealed, removed or
disposed of his property or is about to do so;
4. When the accused resides outside the Philippines
(Sec. 2, Rule127).

Q: What are provisional remedies?

A: They are those to which parties may resort for the

preservation or protection of their rights or interests and
for no other purposes during the pendency of the action.
They are applied to a pending litigation for the purpose of
securing the judgment or preserving the status quo; and in
some cases after judgment, for the purpose of preserving
or disposing of the subject matter (Cala v. Roldan, G.R. No.
L-252, Mar. 30, 1946).

KINDS OF PROVISIONAL REMEDIES

Q: What provisional remedies are available in criminal

cases?

A: As far as applicable, provisional remedies under the Civil

Procedure are available (Sec. 1) such as:
1. Attachment (Rule 57);
2. Preliminary injunction (Sec. 58);
3. Receivership (Rule 59);
4. Delivery of personal property (Rule 60);
5. Support pendente lite (Rule 61).

Q: What is attachment?

A: It is a remedy afforded to the offended party to have the

property of the accused attached as security for satisfaction
of any judgment that may be recovered from the accused.

Q: Who may apply for attachment?

A: The aggrieved party in whose behalf the civil aspect of

the criminal action is prosecuted may apply for the issuance
of a writ of preliminary attachment, he being the person
primarily and directly interested thereby. The prosecutor in
the criminal action may make such an application in behalf
of or for the protection of the interest of the offended
party.
EVIDENCE A: Evidence is the means, sanctioned by the Rules of Court,
of ascertaining in a judicial proceeding the truth respecting
GENERAL PRINCIPLES a matter of fact (Sec. 1, Rule 128).

Q: What is evidence? Q: What are the four component elements?

349 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A:
1. Means of ascertainment includes not only the
procedure or manner of ascertainment but also the
evidentiary fact from which the truth respecting a
matter of fact may be ascertained
2. Sanctioned by the rules not excluded by the Rules of
Court
3. In a judicial proceeding contemplates an action or
proceeding filed in a court of law
4. The truth respecting a matter of fact refers to an
issue of fact and is both substantive (determines the
facts needed to be established) and procedural
(governs the manner of proving said facts).
Note: The truth referred in the definition is not necessarily
the actual truth but one aptly referred to as the judicial or
the legal truth.
Q: Why is evidence required?
A: It is required because of the presumption that the court
is not aware of the veracity of the facts involved in a case. It
is therefore incumbent upon the parties to prove a fact in
issue thru the presentation of admissible evidence (Riano,
Evidence: A Restatement for the Bar, p. 2, 2009 ed.).
Q: When is evidence not required?
A:
1. Where no factual issue exists in a case.
2. Where the case presents only a question of law,
such question is resolved by the mere application
of the relevant statutes.
3. When the pleadings in a civil case do not tender
an issue in fact.
4. When the parties agree upon the facts of the
case.
5. When matters are of judicial notice.
6. When matters are judicially admitted by the
parties
Q: What are the classifications of evidence?
A:
1. As to FORM:
a. Object (Real) - is directly addressed to the
senses of the court. These are tangible things
exhibited or demonstrated.
b. Documentary - consist of writing or any
material containing letters, words, numbers,
figures, symbols or other modes of written
expression offered as proof of their
contents.
c. Testimonial - one which consists of the
narration or deposition by one who has
observed or has personal knowledge of that
to which he is testifying.
2. As to QUALITY:
a. Relevant evidence having any value in reason as
tending to prove any matter probable in an
action.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
b. Material evidence is directed to prove a fact in
issue as determined by the rule of substantive law
and pleadings.
Note: Materiality is determined by whether the fact it
intends to prove is in issue or not. As to whether the
fact in issue or not is in turn determined by substantive
law, the pleadings, pre-trial and by admission and
confession on file.
c. Competent evidence one that is not excluded by
Rules, law or Constitution.
3. As to its ABILITY TO ESTABLISH THE FACT IN DISPUTE:
a. Direct Is that which proves the fact in
dispute without the aid of any interference
or presumption.
b. Circumstantial proof of a fact or facts from
which, taken singly or collectively, the
existence of the particular fact in dispute
may be inferred as a necessary or probable
consequence.
4. As to the DEGREE OF ITS VALUE IN ESTABLISHING A
DISPUTED FACT:
a. Cumulative evidence one which is of the same
kind and character as that already given and
tends to prove the same point.
b. Corroborative evidence additional evidence of a
different kind and character as that already given
and tends to prove the same proposition.
5. As to REQUIREMENT OF FURTHER PROOF
a. Prima facie evidence that which standing
alone unexplained or uncontradicted, is
sufficient to maintain the position affirmed.
b. Conclusive evidence one which the law
does not allow to be contradicted.
6. As to its WEIGHT AND ACCEPTABILITY:
a. Primary or best evidence that which the law
regards as affording the greatest certainty of the
fact in question.
b. Secondary or substitutionary evidence that
which is inferior to primary evidence and is
permitted by law only when the best evidence is
not available.
7. As to WHETHER AN EVIDENCE AFFIRMS OR DENIES A
FACT
a. Positive Evidence when witness affirms
that a fact did or did not occur.
b. Negative When the witness states he did
not see or know of the occurrence of a fact
(Regalado, Remedial Law Compendium, Vol.
th
1. p. 701-703, 10 ed.).
8. Rebuttal and Sur-rebuttal is that which is given to
explain, repel, counteract or disprove facts given in
evidence by adverse party.
SCOPE OF THE RULES OF EVIDENCE
350
 EVIDENCE

The rules of evidence shall be the same in all courts and in An offer of GR: An offer of
all trials and hearings, except as otherwise provided by law compromise is not an compromise by the
or by the Rules of Court. (Sec. 2, Rule 128) It is therefore admission of any accused may be
guided by the principle of uniformity. liability, and is not received in evidence
admissible in evidence as an implied
Q: In what cases will the Rules on Evidence not apply? against the offeror admission of guilt
(Sec. 27, Rule 130);
A: XPN: There is no
1. Election Cases; admission of guilt in
2. Land Registration; compromises offered
3. Cadastral; in quasi-offenses or
4. Naturalization; those allowed by law
5. Insolvency proceedings; and to be compromised
(Sec. 27, Rule 130);
6. Other cases, except by analogy or in suppletory
The concept of The accused enjoys
character and whenever practicable and convenient
presumption of the constitutional
(Sec. 4, Rule 1, Rules of Court).
innocence does not presumption of
Note: The Rules of Evidence are specifically applicable only in apply (Riano p. 9) innocence
judicial proceedings. In quasi-judicial proceedings, the same apply (Sec. 14, Art. III,
by analogy, or in suppletory character. Constitution of the
Phils.)
Q: Are there vested rights under the Rules of Evidence? The parties attend by The accused attend by
accord. compulsion. (Evidence,
A: No. There are no vested rights in the rules of evidence Francisco 1996, p. 7)
because these are subject to change by the Supreme Court
pursuant to its powers to promulgate rules concerning PROOF VERSUS EVIDENCE
pleading, practice and procedure. Hence, evidence
inadmissible according to the laws in force at the time the Proof Evidence
action was instituted may be admitted if the same is The effect when the The mode and manner
admissible at the time of trial. The change in the rules of requisite quantum of of proving competent
evidence is however, subject to the constitutional limitation evidence of a particular facts in judicial
on the enactment of ex post facto laws. (Francisco, fact has been duly proceedings
Evidence, p. 8, 1996 ed; Riano, Evidence: A Restatement for admitted and given
the Bar, p. 47, 2009 ed) weight (Regalado p. 699)

Q: Is waiver of the Rules of Evidence allowed? The probative effect of The means of proof
evidence (Riano p. 10)
A: Yes. The Rules of Evidence may be waived. When an
otherwise objectionable evidence is not objected to, the FACTUM PROBANS VERSUS FACTUM PROBANDUM
evidence becomes admissible because of waiver. However,
if the rule of evidence waived by the parties has been Q: What is a fact?
established by law on grounds of public policy, the waiver is
void. Accordingly, the waiver of privilege against the A: It is a thing done or existing. Whether a thing was done
disclosure of state secrets is void. (Francisco, Evidence, p. 9, or does not exist, is a question of fact for the court.
1996 ed)
Q: Distinguish factum probans from factum probandum

A:
Factum Probans Factum Probandum
The ultimate fact
The evidentiary fact or
sought to be
EVIDENCE IN CIVIL CASES VERSUS EVIDENCE IN CRIMINAL the fact by which the
established. The fact in
CASES factum probandum is
issue and to which
to be established.
evidence is directed.
Civil Cases Criminal Cases Materials which
Proposition to be
The party having the The guilt of the establish the
established (Riano p.
burden of proof must accused has to be proposition (Regalado
28)
prove his claim by a proven beyond p. 699)
preponderance of reasonable doubt (Sec. Existent Hypothetical
evidence (Sec. 1, Rule 2, Rule 133);
133); Note: Every evidentiary question involves the relationship between
the factum probandum and factumprobans.

351 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

calculated, according to the prevailing standards of

ADMISSIBILITY OF EVIDENCE reasoning.

Q: Distinguish admissibility of evidence from probative Note: Components of relevancy:

value of evidence. a. Materiality whether the evidence is offered
upon a matter properly in issue.
b. Probativeness the tendency to establish the
A:
proposition for which it is offered as evidence.
Admissibility Probative Value/
Evidentiary Weight 2. Axiom of competency facts having rational probative
Question of whether Question of whether value are admissible unless some specific rule forbids
certain pieces of the admitted evidence their admission. The rules of exclusion are rules of
evidence are to be proves an issue. exception to the general admissibility of all that is
considered at all. rational and probative. (Regalado, Vol. II, p.704, 2008
Depends on its relevance Tendency to convince ed)
and competence or persuade
Q: When is the admissibility of evidence determined?
Note: Thus, a particular item of evidence may be admissible, but its
evidentiary weight depends on judicial evaluation within the A: It is determined at the time it is offered to the court (Sec.
guidelines provided by the rules of evidence. (Heirs of Sabanpan v.
35, Rule 132).
Comorposa, G.R. No. 152807, Aug. 12, 2003; Riano, Evidence: Bar
Lecture Series, p. 70, 2009 ed)
Q: When is a speech by means of radio broadcast
REQUISITES FOR ADMISSIBILITY OF EVIDENCE admissible in evidence?

Q: What are the requisites for admissibility of evidence?
A: In order that evidence may be admissible, the two
requisites must concur, namely:
1. Relevancy such a relation to the fact in issue as to
induce belief in its existence or non-existence (Sec. 4
Rule 128).
2. Competency if not excluded by law or by the rules
(Sec. 3, Rule 128).
Q: What is the test to determine the relevancy and
competency of evidence?
A: Relevancy is determinable by the rules of logic and
human experience, while competency is determined by the
prevailing exclusionary rules of evidence (Regalado, Vol. II,
p704, 2008 ed.).
Note: Competence, in relation to evidence in general, refers to the
eligibility of an evidence to be received as such. However, when
applied to witness, the term competent refers to his eligibility to
take the stand and to testify.
Q: What is the doctrine of Fruit of the Poisonous Tree?
A: Under this exclusionary rule, once the primary source
(the tree) is shown to have been unlawfully obtained, any
secondary or derivative evidence (the fruit) derived from
it is also inadmissible (People vs. Alicando, 251 SCRA 293).
Q: What are the two axioms of admissibility according to
Wigmore?
A:
1. Axiom of relevancy none but facts having rational
probative value are admissible.
It prescribes merely that whatever is presented, as
evidence shall be presented on the hypothesis that it is
A: Evidence of a message or a speech by means of radio
broadcast is admissible as evidence when the identity of
the speaker is established either by the testimony of a
witness who saw him broadcast his message or speech, or
by the witness recognition of the voice of the speaker.
(Francisco, Evidence, p. 13, 1996 ed)
Q: Mark filed a complaint for annulment of marriage
against Kris on the ground of lack of marriage license
and/or psychological incapacity. Among the exhibits
offered by Mark were three cassette tapes of alleged
telephone conversations between Kris and unidentified
persons, which were obtained without Kris knowledge.
She submitted her objection but the trial court still
admitted such pieces of evidence. Are the assailed
cassette tapes admissible in evidence?
A: No. The Constitution explicity provides that the privacy
of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public
safety or order requires otherwise, as prescribed by law.
Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the
inadmissibility of the subject tapes is mandatory under R.A.
4200. (Salcedo-Ortanez v. CA, G.R. No. 110662, Aug. 4,
1994)
Q: What are the exempted acts under R.A. 4200?
A:
1. Use of such record or any copies thereof as evidence in
any civil, criminal investigation or trial of offenses
mentioned below (par. 2, Sec. 1);
2. Any peace officer authorized by a written order of the
court in cases involving:
a. Treason;
b. Espionage;

UNIVERSITY OF SANTO TOMAS 352

2013 GOLDEN NOTES
 EVIDENCE
c. Provoking war and disloyalty in cases of war;
d. Piracy;
e. Mutiny in the high seas;
f. Rebellion;
g. Conspiracy and proposal to commit rebellion;
h. Inciting to rebellion;
i. Sedition
j. Conspiracy to commit sedition;
k. Inciting to sedition;
l. Kidnapping as defined by the rpc;
m. Violations of commonwealth act no. 616
punishing espionage; and
n. Other offenses against national security.
3. The provisions of Republic Act No. 4200 to the contrary
notwithstanding, a police or law enforcement official and
the members of his team may, upon a written order of the
Court of Appeals, listen to, intercept and record, with the
use of any mode, form, kind or type of electronic or other
surveillance equipment or intercepting and tracking
devices, or with the use of any other suitable ways and
means for that purpose, any communication, message,
conversation, discussion, or spoken or written words
between members of a judicially declared and outlawed
terrorist organization, association, or group of persons or of
any person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism.
Provided, That surveillance, interception and recording of
communications between lawyers and clients, doctors and
patients, journalists and their sources and confidential
business correspondence shall not be authorized. (Sec. 7,
R.A. 9372)
Q: What shall the order allowing a peace officer to make
recordings specify?
A: It shall specify the following:
1. The identity of the person or persons whose
communications, conversations, discussions, or spoken
words are to be overheard, intercepted, or recorded
and, in the case of telegraphic or telephonic
communications, the telegraph line or the telephone
number involved and its location;
2. The identity of the peace officer authorized to
overhear, intercept, or record the communications,
conversations, discussions, or spoken words;
3. The offense or offenses committed or sought to be
prevented; and
4. The period of the authorization. (Sec. 3)
Q: What are the pieces of evidence considered
inadmissible if obtained in violation of the Anti-Wire
Tapping Law?
A:
1. Any communication or spoken word; and
2. The existence, contents, substance, purport, effect or
meaning of the communication or spoken word or any
part thereof (Sec. 4, R.A. 4200).
RELEVANCE OF EVIDENCE AND COLLATERAL MATTERS
353
Q: What is meant by relevance of evidence?
A: Evidence must have such a relation to the fact in issue as
to induce belief in its existence or non-existence (Sec. 4,
Rule 128).
Q: Gaston Walangawa was charged with the crime of
statutory rape of a five year old child. Denial was
presented as a defense. According to the accused, he
cajoled the child while throwing her up and down, his
right hand holding the child and his left hand covering her
vagina. Upon lifting up the child, his left ring finger was
accidentally inserted into the vagina of the child since his
finger was long and the child was not wearing any
underwear. Consequently the child began to cry because
her vagina began to bleed. However, it was established by
the prosecution that the child was wearing shorts at that
time. Was the testimony of the accused relevant to the
fact in issue?
A: No. Sec. 4, Rule 128 of the Rules of Court provides that
"evidence must have such a relation to the fact in issue as
to induce belief in its existence or nor-existence." This
simply means that relevancy is determinable by the rules of
logic and human experience. There is no precise and
universal test of relevancy provided by law. The contention
of the accused raises serious doubts to his credibility. He
failed to explain how his finger accidentally came in contact
with the genitalia of the child, while it was established by
the prosecution that at that time the child was wearing
shorts. Even assuming ex gratia argument that she was
panty less, how could it be possible for his finger to
penetrate to the vagina for about one-fourth of an inch
when she was in shorts. (People v. Joeral Galleno, G.R. No.
123546, July 2, 1998)
Q: What is evidence on collateral matters?
A: These are matters other than the facts in issue and
which are offered as basis for inference as to the existence
or non-existence of the facts in issue. This term connotes an
absence of direct connection between the evidence and the
matter in dispute (Regalado, Remedial Law Compendium,
Vol II, p. 708, 2008 ed.).
Q: Is evidence on collateral matters allowed?
A: GR: Evidence on collateral matters shall not be allowed
XPN: When it tends in any reasonable degree to
establish the probability or improbability of the fact in
issue (Sec. 4, Rule 128).
Note: Collateral matters will be admitted if it has the
tendency to corroborate or supplement facts
established previously by direct evidence, or to induce
belief as to the probability or improbability of a fact in
issue (Riano, Evidence: Bar Lecture Series, p. 69, 2009
ed.). What the rules prohibit is evidence of irrelevant
collateral facts.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: Give the concept of Prospectant collateral matters, requirements of law for its
Concomitant collateral matters, and Retrospectant admissibility therefor. (Regalado,
collateral matters. Remedial Law Compendium, Vol. II,
p.706, 2008 ed.).
A: CONDITIONAL Where the evidence at the time of
PROSPECTANT Are those preceding of the fact in its offer appears to be immaterial
issue but pointing forward to it, or irrelevant unless it is connected
like moral character, motive, with the other facts to be
conspiracy, etc; subsequently proved, such
CONCOMITANT Are those accompanying the fact in evidence may be received on
issue and pointing to it, like alibi, or condition that the other facts will
opportunity and incompatibility; be proved thereafter, otherwise
RETROSPECTANT Are those succeeding the fact in evidence already given will be
issue but pointing backward to it, stricken out, provided further, that
like flight and concealment, there should be no bad faith on the
behavior of the accused upon part of the proponent. (People v.
being arrested, fingerprints or Yatco, etc., et al., 97 Phil 940;
footprints, articles left at the scene Regalado, Remedial Law
of the crime which may identify Compendium, Vol. II, p.705, 2008
the culprit (1 Wigmore 442-43, ed.)
Albano, Remedial Law Reviewer, p.
1199, 2010 ed.). Note: Conditions: (1) to state the
supposed connecting facts and (2)
Q: What is motive? to promise to evidence them later
(Francisco, Evidence, p. 12, 1996
A: It is the moving power which impels one to action for a ed.)
definite result (The Revised Penal Code [Book One] by L. CURATIVE Evidence that is otherwise
Reyes, p.57, 2001 ed.). improper is admitted (despite
objection from the other party) to
Q: When is evidence of motive relevant? contradict improper evidence
presented or introduced by the
A: other party, to cure, contradict or
1. Where the identity of the assailant is in question; neutralize such improper evidence.
2. To determine the voluntariness of the criminal act or (Regalado, Remedial Law
the sanity of the accused; Compendium, Vol. II, p.706, 2008
3. To determine from which side the unlawful aggression ed.)
commenced, as where the accused invoked self-
defense wherein unlawful aggression on the part of his Q: What are the three theories on curative admissibility?
opponent is an essential element;
4. To determine the specific nature of the crime A:
committed; 1. American Rule the admission of such incompetent
5. To determine whether a shooting was intentional or evidence, without objection by the opponent does not
accidental, the fact that the accused had personal justify such opponent in rebutting it by similar
motives to shoot the victim being weighty; and incompetent evidence;
6. Where the accused contends that he acted in defense
of a stranger, since it is essential, for such defense to 2. English Rule if a party has presented inadmissible
prosper, that the accused was not induced by revenge, evidence, the adverse party may resort to similar
resentment or other evil motive (Regalado, Vol. II, pp. inadmissible evidence;
893-894, 2008 ed.).
3. Massachusetts Rule the adverse party may be
MULTIPLE ADMISSIBILITY, CONDITIONAL ADMISSIBILITY, permitted to introduce similar incompetent evidence
CURATIVE ADMISSIBILITY In order to avoid a plain and unfair prejudice cause by
the admission of the other partys evidence (Regalado,
Q: What are the kinds of admissibility of evidence? Remedial Law Compendium, Vol. II, p.706-707, 2008
ed)
A:
MULTIPLE Where the evidence is relevant and Q: What are the factors considered in determining the
competent for two or more application of the rule of curative admissibility?
purposes, such evidence should be
admitted for any or all the A:
purposes for which it is offered 1. Whether the incompetent evidence was seasonably
provided it satisfies all the objected to; and

UNIVERSITY OF SANTO TOMAS 354

2013 GOLDEN NOTES
 EVIDENCE

2. Regardless of the objection, whether the admission of
such evidence shall cause a plain and unfair prejudice
to the party against whom it is admitted (Regalado,
Remedial Law Compendium, Vol. II, p.707, 2008 ed.).
DIRECT AND CIRCUMSTANTIAL EVIDENCE
Q: When is negative evidence admissible?
A: It is admissible only if it tends to contradict positive
evidence of the other side or would tend to exclude the
existence of fact sworn to by the other side. (Francisco,
Evidence, p. 2 , 1996 ed)

DIRECT EVIDENCE CIRCUMSTANTIAL EVIDENCE Note: The rule does not apply where two witnesses with equal
opportunity for knowledge contradict each other as to the
Establishes the Is the proof of facts from
existence or non-existence of fact. (ibid.)
existence of a fact which, taken collectively, the
in issue without existence of the particular
COMPETENT AND CREDIBLE EVIDENCE
the aid of any fact in dispute may be
inference or inferred as a necessary or
COMPETENT CREDIBLE
presumption. probable consequence
Evidence is not excluded Refers to worthiness of
(Regalado, Vol. II, (Francisco, Evidence, p. 2,
by the rules belief (believability)
p.702, 2008 ed.) 1996 ed.)
It is that quality which
renders a witness
Q: When is circumstantial evidence sufficient to convict
worthy of belief
the accused? th
(Blacks, 5 Ed., 330)
A: It is sufficient for conviction if:
Q: Distinguish rules of exclusion from exclusionary rules.
1. There is more than one circumstance;
2. The facts from which the inferences are derived are
A:
proven; and
Rules of Exclusion Exclusionary Rules
3. The combination of all the circumstances is such as to
produce a conviction beyond reasonable doubt (Sec. 4, Governed by the rules Commonly used for
Rule 133; People vs Sevilleno, G.R. No. 152954, March on evidence evidence excluded by the
11, 2004). Constitution
e.g. Best Evidence Scope
Q: Is direct proof of previous agreement to commit a Rule, Parol Evidence
crime necessary to prove conspiracy? Rule & Hearsay Rule 1. Right against
unreasonable
A: No. Considering the difficulty in establishing the search and seizure
existence of conspiracy, settled jurisprudence finds no need (Sec. 2)
to prove it by direct evidence (Fernan, Jr. and Torrevillas v. 2. Right to privacy and
People, G.R. No. 145927, Aug. 24, 2007). It may be deduced inviolability of
from the acts of the perpetrators before, during and after communication
the commission of the crime which are indicative of a (Sec. 3)
common design, concerted action and concurrence of 3. Right of a person
sentiments. (Serrano v. CA, G.R. No. 123896, June 25, 2003) under investigation
for an offense (Sec.
POSITIVE AND NEGATIVE EVIDENCE 12)
4. Right against self-
Q: What is positive and negative evidence? incrimination (Sec.
17)
A:
1. Positive when a witness affirms that a certain fact did
or did not occur. It is entitled to greater weight since
the witness represents of his personal knowledge the
presence or absence of a fact.

Note: In Philippine jurisprudence, a positive testimony BURDEN OF PROOF AND BURDEN OF EVIDENCE
normally enjoys more weight than a negative testimony.
(People v. Cerilla, G.R. No. 177147, Nov. 28, 2007) Q: What is burden of proof?

2. Negative when the witness states that he did not see
or know of the occurrence of a fact and there is total
disclaimer of personal knowledge. Such is admissible
only if he has to contradict positive acts of the other
side or would tend to exclude the existence of fact
sworn to by the other side (Regalado, Remedial Law
Compendium, Vol. II, p.703, 2008 ed.).
A: It is the duty of a party to present evidence to establish
his claim or defense by the amount of evidence required by
law (Sec. 1, Rule 131). It is also called onus probandi. It
means the burden of establishing a case, whether by a
preponderance of evidence, or beyond reasonable doubt,
or by substantial evidence (Francisco, Evidence, p. 382,
1996 ed.).

355 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What is meant by burden of evidence? Q: What is the test to determine where the burden of
proof lies?
A: It is the duty of a party to provide evidence at any stage
of the trial until he has established a prima facie case, or A: The test is to ask which party to an action or suit will fail
the like duty of the adverse party to meet and overthrow if he offers no evidence competent to show the facts
that prima facie case thus established. In both civil and averred as the basis for the relief he seeks to obtain. If the
criminal cases, the burden of evidence lies on the party defendant has affirmative defenses, he bears the burden of
who asserts an affirmative allegation (Regalado, Remedial proof as to those defenses which he sets up in answer to
Law Compendium Vol. II, p. 817, 2008 ed.). the plaintiffs cause of action. (Bank of the Philippine Islands
v. Spouses Royeca, G.R. No. 176664, July 21, 2008)
Q: What are the two concepts of burden of proof?
Q: Who has the burden of proof?
A:
1. Burden of evidence (or burden of going forward with A:
the evidence) Partys obligation of producing CIVIL CASE
evidence. Plaintiff Defendant
2. Burden of persuasion The burden of persuading the The plaintiff has the If he raises an
trier of fact that the burdened party is entitled to burden of proving the affirmative defense, i.e
prevail material allegations of avoidance of claim
the complaint, which
Q: Distinguish burden of proof from burden of evidence. are denied by the
(2004 Bar Question) answer.

A: To show the truth of his

BURDEN OF PROOF BURDEN OF EVIDENCE allegations if the
Whether it shifts throughout the proceedings defendant raises a
Does not shift as it Shifts to the other party negative defense.
remains throughout when one party has CRIMINAL CASE
the entire case exactly produced sufficient Prosecution Accused
where the pleadings evidence to be entitled to The prosecution has the When he admits the
originally placed it a ruling in his favor burden to prove offense/crime charged
What determines it beyond reasonable but raises justifying,
Generally determined Generally determined by doubt, the essential exempting
by the pleadings filed the developments at the elements of the circumstances, or
by the party; and trial, or by the provisions offenses with which the absolutory causes.
whoever asserts the of the substantive law or accused is charged
affirmative of the issue procedural rules which because of the
has the burden of proof may relieve the party presumption of
from presenting evidence innocence
on the fact alleged
Effect of a legal presumption Q: Where is burden of proof fixed?
It does not shift the It creates a prima facie
burden of proof. case and thereby sustains A: The Burden of proof is fixed by the pleadings. The claim
However, the one who the said burden of of the plaintiff, which he must prove, is spelled out in his
has the burden of proof evidence on the point complaint. The defendants defenses which he must
is relieved from the which it covers, shifting it likewise prove are to be found in his answer to the
time being, from to the other party. It complaint. The burdens of proof of both parties do not shift
introducing evidence in relieves those favored during the course of the trial (Riano, Evidence, p. 407, 2009
support of his thereby of the burden of ed.).
averment because the proving the fact
presumption stands in presumed. Q: What are the degrees of proof necessary to satisfy the
the place of evidence. burden of proof?
(Francisco, p. 356, 1992
ed.) A:
1. Civil case Preponderance of evidence
Note: The burden of proof is on the party who asserts the 2. Administrative, agrarian and labor case Substantial
affirmative of the issue at the beginning of the case and continues evidence
on him throughout the case. Eiincumbit probatio qui dicit, no qui
3. Criminal case:
negat - he who asserts, not he who denies, must prove.
(Homeowners Savings & Loan Bank v. Dailo, G.R. No. 153802, Mar. a. During preliminary investigation Well founded
11, 2005) belief of the fact of commission of a crime
b. Issuance of warrant of arrest Probable cause

UNIVERSITY OF SANTO TOMAS 356

2013 GOLDEN NOTES
 EVIDENCE

c. To convict an accused Evidence of guilt beyond burden of going forward with evidence to meet or rebut the
reasonable doubt presumption. (Bautista, Basic Evidence, (2004) at 283 citing
d. Accused claims justifying/exempting Mueller and Kirkpatrick, 3.4.).
circumstances Clear and convincing evidence
Q: What are matters which need not be proved?
Q: Who has the burden of proof if the accused seeks
dismissal under the Speedy Trial Act? A:
1. Facts admitted or not denied provided they have been
A: If the accused is not brought to trial within the time sufficiently alleged (Sec. 11, Rule 8);
required, the Information shall be dismissed upon motion 2. Agreed and admitted facts (Sec. 4, Rule 129);
of the accused. In such a case, the burden of proof of 3. Facts subject to judicial notice and judicial admission
supporting his motion is with the accused (Sec. 13, R.A. (Sec. 3, Rule 129); and
8493). 4. Facts legally presumed (Secs. 2 & 3, Rule 131).

Q: Who has the burden of proof in self-defense? Q: Distinguish presumption from inference.

A: It is well-settled in this jurisdiction that once an accused A:

has admitted that he inflicted the fatal injuries on the PRESUMPTION INFERENCE
deceased, it is incumbent upon him in order to avoid It is mandated by law and It is a factual conclusion
criminal liability, to prove the justifying circumstance establishes a legal relation that can rationally be
claimed by him with clear, satisfactory and convincing between or among the facts. drawn from other facts
evidence. He cannot rely on the weakness of the (Riano, Evidence, p. 427,
prosecution but on the strength of his own evidence, for 2009 ed.).
even if the evidence of the prosecution were weak it could Is a deduction directed by It is a permissive deduction
not be disbelieved after the accused himself had admitted law (Francisco, p. 401)
the killing (Cabuslay v. People and Sandiganbayan, G.R.
No. 129875, Sept. 30, 2005). Q: Distinguish the classes of presumptions.

Q: What is the Principle of Negative Averments? A:

PRESUMPTION OF LAW PRESUMPTION OF
A: GR: Negative allegations need not be proved, whether in (Praesumptiones Juris) FACT
civil or criminal cases. (Praesumptiones
Hominis)
XPN: Where such negative allegations are essential It is a deduction which the It is a deduction which
parts of the cause of action or defense in a civil case, or law expressly directs to be reason draws from the
are essential ingredients of the offense in a criminal made from particular facts. facts proved without an
case or the defenses thereto, negative allegations express direction from
should be proved (Industrial Finance Corp., v.Tobias, law to that effect.
G.R. No. L-41555, July 27, 1977). A certain inference must be Discretion is vested in
made whenever the facts the tribunal as to
XPN to the XPN: In civil cases, even if the appear which furnish the drawing the inference
negative allegation is an essential part of the basis of the inference
cause of action or defense, it does not have to be Reduced to fixed rules and Derived wholly and
proved if it is only for the purpose of denying the form a part of the system of directly from the
existence of a document which should properly jurisprudence circumstances of the
be in the custody of the adverse party (Regalado, particular case by means
Vol. II, p. 818, 2008 ed.). of the common
experience of mankind
Need not be pleaded or Has to be pleaded and
proved if the facts on which proved
they are based are duly
averred and established
PRESUMPTIONS Q: What is the effect of presumption?

Q: What is a presumption?
A: It is an inference of the existence or non-existence of a
fact which courts are permitted to draw from the proof of
other facts (In the matter of the Intestate Estates of
Delgado and Rustia, G.R. No. 175733, Jan. 27, 2006).
A: A party in whose favor the legal presumption exists may
rely on and invoke such legal presumption to establish a
fact in issue. One need not introduce evidence to prove the
fact for a presumption is prima facie proof of the fact
presumed (Diesel Construction, Inc v. UPSI property
Holdings, Inc., GR No. 154937, March 24, 2008).

Note: A presumption shifts the burden of going forward with the Q: What are the kinds of presumptions of law?
evidence. It imposes on the party against whom it is directed the

357 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A:
1. Conclusive presumptions (presumptions juris et de
jure)
2. Disputable presumptions (presumptions juris tantum)
(Rule 131; Regalado Vol. II, pp. 819, 2008 ed.)
CONCLUSIVE PRESUMPTIONS
Conclusive presumptions are those which are irrebuttable
upon the presentation of the evidence and any evidence
tending to rebut the presumption is not admissible. This
presumption is in reality a rule of substantive law (Riano,
Evidence: A Restatement for the Bar, p. 429, 2009 ed.).
Q: What are the classes of conclusive presumptions?
A:
1. Estoppel in pais (Equitable Estoppel) Whenever a
party has, by his own declaration, act or omission,
intentionally and deliberately led another to believe a
particular thing to be true, and to act upon such belief,
he cannot, in any litigation arising out of such
declaration, act or omission, be permitted to falsify it
[Sec. 2, (par. a), Rule 131].
2. Estoppel by deed A party to a property deed is
precluded from asserting, as against another party to
the deed, any right or title in derogation of the deed,
or from denying the truth of any material fact asserted
in the deed e.g. The tenant is not permitted to deny
the title of his landlord at the time of the
commencement of the relation of landlord and tenant
between them [Sec. 2 (par. b), Rule 131]
Note: Estoppel may attach even though the landlord
does not have title at the commencement of the
relations. It may inure in favor of the successor (Golden
Horizon Realty Corporation vs. St Chuan, 365 SCRA 593
citing Geminiano vs. CA, 259 SCRA 344). If the title
asserted is one that is alleged to have been acquired
subsequent to the commencement of that relation, the
presumption will not apply (Santos vs. NSO, G.R. No.
171129 April 6, 2011 citing Herrera, Remedial Law,
Volume VI, 1999 Ed., p. 49.).
Q: What is estoppel?
A: Is a bar which precludes a person from denying or
asserting anything to the contrary of that which has, in
contemplation of law, been established as the truth, either
by the acts of judicial or legislative officers or by his own
deed or representations, either express or implied
(Francisco, Evidence, p. 402, 1996 ed.).
Q: Distinguish Estoppel from waiver
A: A waiver is a voluntary and intentional abandonment or
relinquishment of a known right. It must be supported by
an agreement founded upon a valid consideratipn. An
equitable estoppel may arise however, in the absence of
any intention on the part of the person estopped to
relinquish or change any existing right, and it need not be
supported by any consideration, agreement, or legal
obligation (Francisco, Evidence, p. 402, 1996 ed.).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the basis of Estoppel in pais?
A: It is founded upon principles of morality and fair dealing
and is, intended to promote the ends of justice. It always
presupposes error on one side and fault or fraud upon the
other and some defect of which it would be equitable for
the party against whom the doctrine is asserted to take
advantage (19 Am. Jur. 640-642; Francisco p. 404).
Q: What is the effect of estoppel in pais?
A: The effect of an estoppel in pais, is to prevent the
assertion of what would otherwise be an unequivocal right
or to preclude what would otherwise be a good defense.
Such estoppel operates always as a shield, never as a
sword.
Q: What are the requisites for a party to be estopped?
A:
1. Conduct amounting to false representation or
concealment of material facts; or at least calculated to
convey the impression that the facts are otherwise
than, and inconsistent with, those which the party
subsequently attempts to assert;
2. Intent, or at least, expectation, that this conduct shall
be acted upon by, or at least influence, the other
party; and
3. Knowledge, actual or constructive, of the real facts
(Riano, Evidence: A Restatement for the Bar, p. 431,
2009 ed.).
Q: What are the requisites before estoppel may be
claimed?
A:
1. Lack of knowledge and of the means of knowledge of
the truth as to the facts in question;
2. Reliance, in good faith, upon the conduct or
statements of the party to be estopped; and
3. Action or inaction based thereon of such character as
to change the position or status of the party claiming
the estoppel, to his injury, detriment or prejudice.
(Kalalo v. Luz, G.R. No. L-27782, July 31, 1970)
Q: What are the other forms of estoppel akin to estoppel
in pais?
A:
(a) Estoppel by silence - where a person, who by force of
circumstances is under a duty to another to speak,
refrains from doing so and thereby leads the other to
believe in the existence of a state of facts in reliance
on which he acts to his prejudice. Silence may support
an estoppel whether the failure to speak is intentional
or negligent (Pasion vs. Melegrito, G.R. No. 166558,
March 28, 2007).
(b) Estoppel by laches is unreasonable delay to seek or
to enfore a right at a proper time. A neglect to do
something which one should do or to seek to enforce a
right at a proper time.
358
 EVIDENCE
(c) Promissory estoppel- may arise from the making of a
promise, even though without consideration, if it was
intended that the promise should be relied upon and
in fact relied upon, and if a refusal to enforce it would
be virtually to sanction the perpetration of fraud or
would result in other injustice.
(d) Estoppel on question of jurisdiction A party is
barred from assailing the legality of an order issued at
his own motion since a person cannot be allowed to
take advantage of his own wrong when such would
work substantial injury to the other party (21 C.J. 1152,
Francisco, Evidence, p. 407-408, 1996 ed.).
Q: What is the reason for the rule on estoppel by deed?
A: The doctrine is founded in public convenience and policy,
because it tends to encourage honesty and good faith
between landlord and tenant. (32 Am. Jur. 109; Francisco p.
412)
Q: What are the requisites of estoppel by deed?
A:
(a) The recitals should be clear and unambiguous;
(b) There should be distinct and precise admission of
facts;
(c) The deed must be delivered; and
(d) That it must be a valid instrument (Francisco, Evidence,
p. 412, 1996 ed.).
DISPUTABLE PRESUMPTIONS
Q: What are disputable presumptions?
A: Those which are satisfactory if uncontradicted, but may
be contradicted and overcome by other evidence (Sec. 3,
Rule 131).
Q: What are the disputable presumptions under Section 3
of Rule 131?
A:
(a) A person is innocent of a crime or wrong.
Note: It applies to both civil and criminal cases.
Presumption of innocence of the accused accompanies
him until the rendition of judgment and disappears
after conviction, such that upon appeal, the appellate
court will then presume the guilt of the accused. The
prosecutions case must rise and fall on its own merits
and cannot draw strength from the weakness of the
defense (People vs. Mingming, G.R. No. 174195, Dec.
10, 2008).
(b) Unlawful act is done with an unlawful intent.
(c) Person intends the ordinary consequences of his
voluntary act.
(d) Person takes ordinary care of his concerns.
Note: All people are sane and normal and moved by
359
substantially the same motives. When of age and sane, they
must take care of themselves. Courts operate not because
one person has been defeated or overcome by another but
because that person has been defeated or overcome illegally.
There must be a violation of the law (Vales v. Villa, G.R. No.
10028, Dec. 16, 1916).
(e) Evidence willfully suppressed would be adverse if
produced.
The requisites for the presumption to apply are:
a. The evidence is material;
b. The party had the opportunity to produce it;
and
c. The evidence is available only to the said
party.
The presumption will not be applicable when:
a. Suppression of evidence is not willful;
b. Evidence suppressed or withheld is merely
corroborative or cumulative;
c. Evidence is at the disposal of both parties;
and
d. Suppression is by virtue of an exercise of
privilege.
Note: Failure of the prosecution to present a
certain witness and to proffer a plausible
explanation does not amount to willful
suppression of evidence since the prosecutor has
the discretion/prerogative to determine the
witnesses he is going to present (People v.
Jalbuena, G.R. No. 171163, July 4, 2007).
(f) Money paid by one to another was due to the latter.
(g) Thing delivered by one to another belonged to the
latter.
(h) Obligation delivered up to the debtor has been paid.
(i) Prior rents or installments had been paid when a
receipt for the later ones is produced.
(j) A person found in possession of a thing taken in the
doing of a recent wrongful act is the taker and doer of
the whole act; otherwise, that things which a person
possesses or exercises acts of ownership over, are
owned by him.
Note: In order to raise the presumption, the following must
be proved:
1. That a crime was committed;
2. That it was committed recently;
3. That the stolen property was found in the possession of
the defendant; and that the defendant is unable to
explain his possession satisfactorily (U.S v. Espia 16 Phil
506).
(k) That a person in possession of an order for the
payment of the money, or the delivery of anything, has
paid the money or delivered the thing accordingly;
(l) Person acting in public office was regularly appointed
or elected to it.
Ratio: It would cause great inconvenience if in the first
instance strict proof were required of appointment or
election to office in all cases where it might be
collaterally in issue.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: However the presumption of a regular appointment
does not apply to a public officer seeking to recover salary
attached to the office, or the benefits of a pension system (31
C.J.S, 787-788)
(m) Official duty has been regularly performed.
Note: All things are presumed to have been done regularly
and with due formality until the contrary is proved (Omnia
praesumuntur rite et solemniter esse acta donec probetur in
contrarium).This presumption extends to persons who have
been appointed pursuant to a local or special statute to act in
quasi-public or quasi-official capacities and to professionals
like lawyers and surgeons.
GR: Presumption applies to both civil as well as
criminal cases.
XPNs:
(1) Petition for writ of amparo presumption
may not be invoked by the respondent
public officer or employee (Rule on the Writ
of Amparo, A.M. No. 17-9-12-SC);
(2) The presumption does not apply during in-
custody investigation (People vs. Camat, 256
SCRA 52);
(3) When the official conduct in question is
irregular on its face (People v. Obmiranis, GR.
No. 181492, Dec. 16, 2008);
(n) A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the lawful
exercise of jurisdiction.
Note: Lawful exercise of jurisdiction is presumed in all cases,
be it superior or inferior courts, whether in the Philippines or
elsewhere, unless the record itself shows that jurisdiction has
not been acquired or the record itself shows the absence of
jurisdiction, in which case jurisdiction to render a judgment
may not be presumed.
(o) All the matters within an issue raised in a case were
laid before the court and passed upon by it; all matters
within an issue raised in a dispute submitted for
arbitration were laid before arbitrators and passed
upon by them.
(p) Private transactions have been fair and regular.
(q) Ordinary course of business has been followed.
(r) There was a sufficient consideration for a contract.
(s) Negotiable instrument was given or indorsed for a
sufficient consideration.
(t) An endorsement of negotiable instrument was made
before the instrument was overdue and at the place
where the instrument is dated.
Note: Except where an indorsement bears date after the
maturity of the instrument, every negotiation is deemed
prima facie to have been effected before the instrument was
overdue (Sec. 45, Act. No. 2031).
(u) A writing is truly dated.
(v) Letter duly directed and mailed was received in the
regular course of the mail.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: For this presumption to arise, it must be proved that
the letter was properly addressed with postage pre-paid and
that it was actually mailed.
(w) Presumption of Death
(1) Absence of 7 years- it being unknown whether or
not, the absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession
(2) Absence of 10 years- The absentee shall be
considered dead for the purpose of opening his
succession only after an absence of 10 years.; and
if he disappeared after the age of 75, absence of
only 5 years is sufficient.
(3) The following shall be considered dead for all
purposes including the division of estate among
the heirs:
a. Person on board a vessel lost during a sea
voyage, or an aircraft which is missing, who
has not been heard of for 4 years since the
loss of the vessel or aircraft;
b. Member of the armed forces who has taken
part in armed hostilities, and has been
missing for 4 years;
c. Person who has been in danger of death
under other circumstances and whose
existence has not been known for 4 years;
d. If a married person has been absent for 4
consecutive years, the spouse present may
contract a subsequent marriage if he or she
has well-founded belief that the absent
spouse is already dead; 2 years in case of
disappearance where there is danger of
death under the circumstances hereinabove
provided. Before marrying again, the spouse
present must institute a summary
proceeding as provided in the Family Code
and in the rules for declaration of
presumptive death of the absentee, without
prejudice to the effect of re-appearance of
the absent spouse.
(x) Acquiescence resulted from a belief that the thing
acquiesced in was conformable to the law or fact.
(y) Things have happened according to the ordinary
course of nature and ordinary habits of life.
(z) Persons acting as co-partners have entered into a
contract of co-partnership.
(aa) A man and woman deporting themselves as husband
and wife have entered into a lawful contract of
marriage.
(bb) Property acquired by a man and a woman who are
capacitated to marry each other and who live
exclusively with each other as husband and wife
without the benefit of marriage or under void
marriage, has been obtained by their joint efforts,
work or industry.
(cc) In cases of cohabitation by a man and a woman who
are not capacitated to marry each other and who have
acquired properly through their actual joint
contribution of money, property or industry, such
contributions and their corresponding shares including
joint deposits of money and evidences of credit are
360
 EVIDENCE

equal.
(dd) If the marriage is terminated and the mother
contracted another marriage within 300 hundred days
after such termination of the former marriage, these
rules shall govern in the absence of proof to the
contrary:

Presumptions of paternity:
a. A child born before 180 days after the
subsequent marriage is conceived during the
former marriage, provided it is born within
300 days after the termination of the former
marriage.
b. A child born after 180 days following the
subsequent marriage is considered to have
been conceived during the subsequent
marriage, even though it be born within the
300 days after the termination of the former
marriage.

Note: There is no presumption of legitimacy or illegitimacy

when a child is born after 300 days following dissolution of
marriage or the separation of the spouses. Whoever alleges
the legitimacy or illegitimacy of such child must prove his
allegation (Sec. 4, rule 131).

no presumption of
legitimacy or illigitimacy
conceived during the
subsequent marriage
conceived during the
former marriage

termination of subsequent marriage 180 days after the 300 days after termination of 1st
1st marriage subsequent marriage marriage

(ee) A thing once proved to exist continues as long as is (jj) Except for purposes of succession, when 2 persons
usual with things of that nature. perish in the same calamity, and it is not shown who
(ff) The law has been obeyed. died first, and there are no particular circumstances
(gg) A printed or published book, purporting to be printed from which it can be inferred, the survivorship is
or published by public authority, was so printed or determined from the probabilities resulting from the
published. strength and age of the sexes, according to the
(hh) A printed or published book, purporting to contain following rules:
reports of cases adjudged in tribunals of the country
where the book is published, contains correct reports Presumed To
First Person Second Person
of such cases. Have Survived
(ii) A trustee or other person whose duty it was to convey < 15 yrs old < 15 yrs old older
real property to a particular person has actually
conveyed it to him when such presumption is > 60 yrs old > 60 yrs old younger
necessary to perfect the title of such person or his < 15 > 60 yrs old < 15
successor in interest. >15 and < 60 >15 and < 60 The male

361 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

male female evenly balanced or there is doubt on which side the

>15 and < 60 >15 and < 60 evidence preponderates. In this case the decision should be
The older against the party with the burden of proof (Marubeni Corp.
female female
The one vs. Lirag, GR No. 130998, Aug. 20, 2001). However in
< 15 or > 60 15-60 between those criminal cases, the equipose rule provides that where the
ages evidence is evenly balanced, the constitutional
presumption of innocence tilts the scales in favor of the
(kk) That if there is a doubt, as between two or more accused (People v. Erquiza, GR No. 171348, Nov. 26, 2008).
persons who are called to succeed each other, as to
which of them died first, whoever alleges the death of Q: What is the hierarchy of quantum of evidence?
one prior to the other, shall prove the same; in the
absence of proof, they shall be considered to have A:
died at the same time (Sec. 3, Rule 131).

LIBERAL CONSTRUCTION OF THE RULES OF EVIDENCE

Q: How are the rules on evidence construed?

A: The rules of evidence must be liberally construed (Sec. 6,

Rule 1). The Rules of Procedure are mere tools intended to
facilitate rather than to frustrate the attainment of justice.
A strict and rigid application of the rules must always be
avoided if it would subvert their primary objective of
enhancing substantial justice (Alcantara vs. PCIB, G.R. No.
151349, October 20, 2010). Procedural rules must be
liberally interpreted and applied so as not to frustrate
substantial justice (Quiambao vs. Court of Appeals, 454
SCRA 17, March 28, 2005). However, to justify relaxation of
the rules, a satisfactory explanation and a subsequent
fulfillment of the requirements have always been required
(Barcenas vs Tomas, 454 SCRA 593, March 31, 2005).

QUANTUM OF EVIDENCE (WEIGHT AND SUFFICIENCY OF

EVIDENCE) (RULE 133)

Q: What is meant by weight of evidence?

A: It is the probative value given by the court to particular

evidence admitted to prove a fact in issue.

Q: What is the degree of evidence required in order to

disprove the prima facie case established by the party
having the burden of proof?

A: A prima facie case need not be countered by a

preponderance of evidence nor by evidence of greater
weight. Defendant's evidence which equalizes the weight of Note: Evidence, to be worthy of credit, must not only proceed from
plaintiff's evidence or puts the case in equipoise is a credible source but must also be credible in itself. It must be
sufficient. As a result, plaintiff will have to go forward with natural, reasonable and probable as to make it easy to believe
the proof. Should it happen that at the trial the weight of (People v. Peruelo, G.R. No. 50631, June 29, 1981).
evidence is equally balanced or at equilibrium and
presumptions operate against plaintiff who has burden of
proof, he cannot prevail (People v. Santiago, G. R. Nos.
137542-43, Jan. 20, 2004). Q: When is evidence credible?

Q: What is Equipoise Rule or Equiponderance Doctrine and
cite its constitutional basis?
A: The doctrine is based on the principle that no one shall
be deprived of life, liberty or property without due process
of law. (Sec. 1, Art. III, 1987 Constitution) The doctrine
refers to a situation where the evidence of the parties are
A: It is credible if it is admissible and believable and worthy
of belief, such that it can be used by the courts in deciding a
case.
Q: What are the guidelines in the assessment of credibility
of a witness?
A:

UNIVERSITY OF SANTO TOMAS 362

2013 GOLDEN NOTES
 EVIDENCE
1. A witness who testified in clear, positive and
convincing manner and remained consistent in cross-
examination is a credible witness (People v. Comanda,
G.R. No. 175880, July 6, 2007); and
2. Findings of fact and assessment of credibility of a
witness are matters best left to the trial court that had
the front-line opportunity to personally evaluate the
demeanor, conduct, and behavior of the witness while
testifying (Sps. Paragas v. Heirs of Balacano, G.R. No.
168220, Aug. 31, 2005).
Q: May the trial courts findings as to the credibility of
witnesses be disturbed on appeal?
A: The trial courts findings of fact will not be disturbed on
appeal, unless there is a clear showing that it plainly
overlooked matters of substance which, if considered,
might affect the results of the review. The credibility of
witnesses is best determined by the trial judge, who has the
direct opportunity to observe and evaluate their demeanor
on the witness stand (People v. Pacuancuan, G.R. No.
144589, June 16, 2003).
Q: May the uncorroborated testimony of an accused who
turned into a State witness suffice to convict his co-
accused?
A: Yes. It may suffice to convict his co-accused if it is given
unhesitatingly and in a straightforward manner and is full of
details which by their nature could not have been the result
of deliberate afterthought, otherwise, it needs
corroboration, the presence or lack of which may ultimately
decide the case of the prosecution and the fate of the
accused (People v. Sunga, G.R. No. 126029, Mar. 27, 2003).
Note: Requisites to be admitted as a State Witness:
a) the offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code or
its equivalent under special laws;
b) there is absolute necessity for his testimony;
c) there is no other direct evidence available for the
proper prosecution of the offense committed;
d) his testimony can be substantially corroborated on its
material points;
e) he does not appear to be most guilty; and
f) he has not at any time been convicted of any crime
involving moral turpitude.
An accused discharged from an information or criminal
complaint by the court in order that he may be a State
Witness pursuant to Section 9 and 10 of Rule 119 of the
Revised Rules of Court may upon his petition be admitted
to the Program if he complies with the other requirements
of this Act. Nothing in this Act shall prevent the discharge of
an accused, so that he can be used as a State Witness under
Rule 119 of the Revised Rules of Court. (Sec. 10, RA 6981)
Q: Is the testimony of only one witness sufficient to
convict the accused?
A: Yes. In determining the sufficiency of evidence, what
matters is not the number of witnesses but the credibility
and the nature and quality of their testimonies. The
testimony of a lone witness is sufficient to support a
conviction if found positive and credible (Ceniza-Manantan
v. People, G.R. No. 156248, Aug. 28, 2007).
Q: What is the Rule on Partial Credibility of a witness?
A: The testimony of a witness may be believed in part and
disbelieved in another part, depending on the probabilities
and improbabilities of the case (People v. Tan, G.R. No.
176526, Aug. 8, 2007).
Note: If the testimony of the witness on a material issue is willfully
false and given with an intention to deceive, the court may
disregard all the witness testimony. Falsus in uno, falsus in
omnibus (False in one thing, false in everything)(Riano, Evidence: A
Restatement for the Bar, pp. 10, 2009 ed.). This is not a mandatory
rule of evidence but is applied by the courts in its discretion. It
deals only with the weight of evidence and not a positive rule of
law. The witnesses false or exaggerated statements on other
matters shall not preclude the acceptance of such evidence as is
relieved from any sign of falsehood. The court may accept and
reject portions of the witness testimony depending on the
inherent credibility thereof (Regalado, Remedial Law, Vol. II, p.
883, 2008 ed.).
Q: What are the requirements for the maxim of falsus in
uno, falsus in omnibus to apply?
A:
1. That the false testimony is as to one or more material
points; and
2. That there should be conscious and deliberate
intention to falsity (People vs. Pacapac, 248 SCRA 77).
Q: What is alibi?
A: It is a defense where an accused claims that he was
somewhere else at the time of the commission of the
offense. It is one of the weakest defenses an accused may
avail because of the facility with which it can be fabricated,
just like a mere denial (People v. Esperanza, G.R. Nos.
139217-24, June 27, 2003). When this is the defense of the
accused, it must be established by positive, clear and
satisfactory evidence.
Note: A categorical and positive identification of an accused,
without any showing of ill-motive on the part of the eyewitness
testifying on the matter, prevails over an alibi (People v. Gingos
and Margote, G.R. No. 176632, Sept. 11, 2007). For the defense of
alibi to prosper, the accused must show that:
1. He was somewhere else; and
2. It was physically impossible for him to be at the
scene of the crime at the time of its commission.
(People v. Gerones, et.al., G.R. No. L-6595, Oct. 29,
1954)
Q: What is Out-of-Court Identification?
A: It is a means of identifying a suspect of a crime and is
done thru:
1. Show-ups: where the suspect alone is brought face to
face with the witness for identification;
Note: Eyewitness identification is often decisive of the
conviction or acquittal of an accused. Identification of an
accused through mug shots is one of the established
procedures in pinning down criminals. However, to avoid
363 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
charges of impermissible suggestion, there should be nothing
in the photograph that would focus attention on a single
person. (People v. Villena, G.R. No. 140066, Oct. 14, 2002)
2. Mug shots: where photographs are shown to the
witness to identify the suspect; or
3. Line-ups: where a witness identifies the suspect from a
group of persons lined up for the purpose (People v.
Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6,
1995).
Note: A police line-up is merely a part of the investigation
process by police investigators to ascertain the identity of
offenders or confirm their identification by a witness to the
crime. Police officers are not obliged to assemble a police
line-up as a condition sine qua non to prove the identity of an
offender. If on the basis of the evidence on hand, police
officers are certain of the identity of the offender, they need
not require any police line-up anymore. (Tapdasan, Jr. v.
People, G.R. No. 141344, Nov. 21, 2002)
Q: When is out-of-court identification admissible and
reliable?
A: It is admissible and reliable when it satisfies the totality
of circumstances test. Under the totality of
circumstances test, the following factors are considered:
1. Witness opportunity to view the criminal at the time
of the crime;
2. Witness degree of attention at that time;
3. Accuracy of any prior description given by the witness;
4. Level of certainty demonstrated by the witness at the
identification;
5. Length of time between the crime and the
identification; and
6. Suggestiveness of the identification procedure (People
v. Claudio Teehankee, Jr., G.R. Nos. 111206-08, Oct. 6,
1995)
Q: What is corpus delicti?
A: It is the actual commission by someone of the particular
crime charged. It refers to the fact of the commission of the
crime, not to the physical body of the deceased or to the
ashes of a burned building. The corpus delicti may be
proven by the credible testimony of a sole witness, not
necessarily by physical evidence (Rimorin v. People, G.R. No.
146481, Apr. 30, 2003).
Q: What are the elements of corpus delicti?
A:
1. Proof of the occurrence of a certain event; and
2. A persons criminal responsibility for the act (People v.
Corpuz, G.R. No. 148919, Dec. 17, 2002).
Note: The identity of the accused is not a necessary element of the
corpus delicti.
Q: Is a plea of guilty in open court sufficient without proof
of corpus delicti?
A: Yes. A plea of guilty at the arraignment in open court,
which is a confession of guilt by the defendant, is sufficient
to support a conviction without necessity of proof aliunde
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
of corpus delicti. In contrast, an extrajudicial confession
made by defendant does not warrant a conviction unless
corroborated by independent evidence of corpus delicti
(Francisco Evidence, p. 532, 1996 ed.).
Q: Jose Mariposa was charged with violation of Sec. 4, Art.
2 of the Dangerous Drugs Act of 1972. He was
apprehended thru a buy-bust operation. During trial the
prosecution failed to produce the marijuana sticks that
Mariposa sold during the entrapment operation. Is there a
need to produce the marijuana sticks in order to convict
the accused?
A: Yes. The elements necessary for a charge of illegal sale of
marijuana are: (1) the identity of the buyer and the seller,
the object, and consideration; and (2) the delivery of the
thing sold and the payment therefore. It is indispensable
that the identity of the marijuana which constitutes the
corpus delicti must be established before the court. During
the trial, the sticks of marijuana were never presented as
evidence to prove that appellant indeed sold the same
during the entrapment operation. It is an entrenched rule
in our jurisprudence that indispensable in every
prosecution for illegal sale of marijuana, a prohibited drug,
is the submission of proof that the sale for the illicit drug
took place between the poseur-buyer and the seller
thereof, and the presentation further of the marijuana, the
corpus delicti, as evidence in court (People v. Rigodon, G.R.
No. 111888, Nov. 8, 1994).
Q: What is the doctrine of res ipsa loquitur?
A: It literally means the thing speaks for itself. This doctrine
provides that the fact of the occurrence of an injury, taken
with the surrounding circumstances, may permit an
inference or raise a presumption of negligence, or make out
a plaintiff's prima facie case, and present a question of fact
for defendant to meet with an explanation. Where the
thing which caused the injury complained of is shown to be
under the management of the defendant or his servants
and the accident is such as in ordinary course of things does
not happen if those who have its management or control
use proper care, it affords reasonable evidence, in the
absence of participation by the defendant, that the
accident arose from or was caused by the defendant's want
of care (Ramos v. CA, G.R. No. 124354, Dec. 29, 1999).
Q: Does the application of the doctrine dispense with the
requirement of proof of negligence?
A: No. It is considered merely as evidentiary or in the
nature of procedural rule. It is simply in the process of such
proof, permitting the plaintiff to present enough of the
attending circumstances to invoke the doctrine, creating an
inference or presumption of negligence and thereby place
on the defendant the burden of going forward with the
proof to the contrary (Ramos, et. al. v. CA, G.R. No. 124354,
Dec. 29, 1999)
PROOF BEYOND REASONABLE DOUBT
Proof beyond reasonable doubt does not mean such a
degree of proof as, excluding possibility of error, produces
364
 EVIDENCE
absolute certainty. Moral certainty only is required, or that
degree of proof which produces conviction in an
unprejudiced mind (Sec. 2, Rule 133).
Note: Moral certainty is that degree of certainty which will justify
the trial judge in grounding on it his verdict. It is a certainty that
convinces and directs the understanding and satisfies the reason
and judgment of those who are bound to act conscientiously upon
it.
Q: What is meant by reasonable doubt?
A: It is that state of the case which, after the entire
comparison and consideration of all the evidence leaves the
mind of the judge in that condition that he cannot say that
he feels an abiding conviction to a moral certainty of the
truth of the charge. (People v. Calma, G.R. No. 127126,
Sept. 17, 1998).
Q: Must the identity of the accused be proved beyond
reasonable doubt?
A: Yes. When the identity of the accused is not established
beyond reasonable doubt, acquittal necessarily follows.
Conviction for a crime rests on the strength of the
prosecutions evidence, never on the weakness of that of
the defense (People vs. Jalon, G.R. No. 93729, Nov. 13,
1992).
Note: In every criminal prosecution, the prosecution must prove
two things:
1. The commission of the crime; and
2. The identification of the accused as the perpetrator of
the crime. What is needed is positive identification
made with moral certainty as to the person of the
offender (People v. Maguing, G.R. No. 144090, June 26,
2003).
PREPONDERANCE OF EVIDENCE
It is the weight, credit, and value of the aggregate evidence
on either side and is usually considered to be synonymous
with the term greater weight of the evidence or greater
weight of the credible evidence. It is a phrase which, in the
last analysis, means probability of the truth, evidence which
is more convincing to the court as worthy of belief than
that which is offered in opposition thereto (Philippine
Commercial International Bank vs. Balmaceda, 658 SCRA
33).
Note: However, even if the evidence adduced by the plaintiff
appears to be stronger than that presented by the defendant, a
judgment cannot be entered in the plaintiffs favor if his evidence
still does not suffice to sustain his cause of action. (Ibid.)
Q: What are the matters that the court may consider in
determining whether or not there is preponderance of
evidence?
A:
1. All the facts and circumstances of the case;
2. The witnesses' manner of testifying, their intelligence,
their means and opportunity of knowing the facts to
which they are testifying, the nature of the facts to
which they testify, the probability or improbability of
their testimony;
3. The witnesses interest or want of interest, and also
their personal credibility so far as the same may
legitimately appear upon the trial; and
4. The number of witnesses, though the preponderance
is not necessarily with the greater number (Sec. 1, Rule
133).
Note: To persuade by the preponderance of evidence is not to take
the evidence quantitatively but qualitatively (Riano, Evidence, p.
413, 2009 ed)
SUBSTANTIAL EVIDENCE
That amount of relevant evidence which a reasonable mind
might accept as adequate to justify a conclusion (Sec. 5,
Rule 133).
CLEAR AND CONVINCING EVIDENCE
It is that degree of evidence that produces in the mind of
the trier of fact a firm belief or conviction as to allegations
sought to be established; It is intermediate, being more
than preponderance, but not to the extent of such certainty
as is required beyond reasonable doubt as in criminal cases
th
(Blacks Law Dictionary. 5 ed., 227).
Q: What are the instances when clear and convincing
evidence is required as quantum of proof?
A:
1. Granting or denial of bail in extradition proceedings
(Government of Hong Kong Special Administrative
Region v. Olalia, Jr., G.R. No. 153675, April 19, 2005);
2. When proving a charge of bias and partiality against a
judge (Rivera v. Mendoza, A.M. No. RTJ-06-2013, Aug.
4, 2006);
3. When proving fraud (Alonso v. Cebu Country Club, Inc.,
G.R. No. 130876, Dec. 5, 2003)
XPN: Under Art. 1387 of the New Civil Code, certain
alienations of property are presumed fraudulent.
4. When proving forgery (Citibank, N.A. v. Sabeniano, G.R.
No. 156132, Feb. 6, 2007);
5. When proving ownership over a land in annulment or
reconveyance of title (Manotok Realty, Inc. v. CLT Realty
Development Corp., G.R. No. 123346, Dec. 14, 2007);
6. When invoking self-defense, the onus is on the accused-
appellant to establish by clear and convincing evidence
his justification for the killing (People v. Tomolin, G.R.
No. 126650, July 28, 1999);
7. When proving the allegation of frame-up and extortion
by police officers in most dangerous drug cases (People
v. Boco, G.R. No. 129676, June 23, 1999);
8. When proving physical impossibility for the accused to
be at the crime scene when using alibi as a defense
(People v. Cacayan, G.R. No.180499, July 9, 2008);
9. When using denial as a defense like in prosecution for
violation of the Dangerous Drugs Act (People v.
Mustapa, G.R. No. 141244, Feb. 19, 2001);
365 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
10. To overcome the presumption of due execution of
notarized instruments (Viaje v. Pamintel, G.R. No.
147792, Jan. 23, 2006);
11. When proving bad faith to warrant an award of moral
damages (Resolution of the SC in Cual v. Leonis
Navigation, G.R. No. 167775, Oct. 10, 2005);
12. When proving that the police officers did not properly
perform their duty or that they were inspired by an
improper motive (People v. Concepcion, G.R. No.
178876, June 27, 2008); or
13. When a person seeks confirmation of an imperfect or
incomplete title to a piece of land on the basis of
possession by himself and his predecessors-in-interest,
he must prove with clear and convincing evidence
compliance with the requirements of the applicable
law. (Republic v. Imperial Credit Corp., G.R. No. 173088,
June 25, 2008)(List of cases: Riano, Evidence: A
Restatement for the Bar, pp. 422-426, 2009 ed.)
JUDICIAL NOTICE AND JUDICIAL ADMISSIONS
WHAT NEED NOT BE PROVED
Q: What are the facts that need not be proved?
A:
1. Those of which the courts may take judicial notice
(Rule 129);
2. Those that are judicially admitted (Rule 129);
3. Those that are conclusively presumed (Rule 131);
4. Those that are disputably presumed but
uncontradicted (Rule 131);
5. Immaterial allegations; and
6. Facts admitted or not denied provided they have been
sufficiently alleged (Sec. 1, Rule 8).
Q: What are the requisites of judicial notice?
A:
1. The matter must be one of common and general
knowledge;
2. It must be well and authoritatively settled and not
doubtful or uncertain; and
3. It must be one which is not subject to a reasonable
dispute in that it is either:
a. Generally known within the territorial jurisdiction
of the trial court; or
b. Capable of accurate and ready determination by
resorting to sources whose accuracy cannot
reasonably be questionable (Expertravel & Tours,
Inc. v. CA, G.R. No. 152392, May 26, 2005).
Note: The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety (Ibid.). The test
of notoriety is whether the fact involved is so notoriously known as
to make it proper to assume its existence without proof.
Q: What is meant by matters of public knowledge?
A: They are those matters coming to the knowledge of men
generally in the course of ordinary experiences of life, or
they may be matters which are generally accepted by
mankind as true and are capable of ready and
unquestioned demonstration.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: Judicial notice is not judicial knowledge. The mere personal
knowledge of the judge is not the judicial knowledge of the court,
and he is not authorized to make his individual knowledge of a fact,
not generally or professionally known, the basis of his action.
Judicial cognizance is taken only of those matters which are
"commonly" known (State Prosecutors vs. Muro, A.M. No. RTJ-92-
876 Sept. 19, 1994).
Q: What is meant by matters which are capable of
unquestionable demonstration?
A: These are facts, theories and conclusions which have
come to be established and accepted by the specialists in
the areas of natural science, natural phenomena,
chronology, technology, geography, statistical facts and
other fields of professional and scientific knowledge
(Francisco, Evidence, p. 28, 1996 ed.).
MATTERS OF JUDICIAL NOTICE
It is the cognizance of certain facts which judges may
properly take and act upon without proof because they are
supposed to be known to them. It is based on
considerations of expediency and convenience. It displaces
evidence, being equivalent to proof (Regalado, Remedial
Law Compendium, Volume II, p. 833, 2008 ed.).
Q: What is the function of Judicial Notice?
A: Judicial Notice dispenses the presentation of evidence
and fulfills the purpose for which the evidence is designed
to fulfill (Moran, Comments on the Rules of Court, p.38 ,
1980, citing Alzua vs. Johnson, 21 Phil. 308).Its function is to
abbreviate litigation by admission of matters that needs no
evidence because judicial notice is a substitute for formal
proof of a matter by evidence (Riano, Evidence, p. 79, 2009
ed.).
Q: What are the kinds of judicial notice?
A:
1. Mandatory insofar as those matters enumerated
under Sec. 1, Rule 129;
2. Discretionary on matters which are of public
knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges
because of their functions (Sec. 2, Rule 129).
Q: At what stage may the court take judicial notice of
a fact?
A: Judicial notice of a fact may be taken:
1. During trial;
2. After trial and before judgment; or
3. Appeal.
In all instances, the court may act on its own initiative
or on request of a party (Sec. 3, Rule 129).
366
 EVIDENCE

Q: In discretionary judicial notice, when is hearing establishments (Commander Realty, Inc. v. CA, 168 SCRA
necessary? 181)

A: JUDICIAL ADMISSIONS
DURING TRIAL AFTER TRIAL BUT
BEFORE JUDGMENT OR Q: What is judicial admission?
ON APPEAL
The court on its own The proper court, on its A: It is an admission, verbal or written, made by a party in
initiative, or on own initiative or on the course of the proceedings in the same case, which does
request of a party, request of a party, may not require proof (Sec. 4, Rule 129).
may announce its take judicial notice of any
Note: Judicial admissions are conclusive and no evidence is
intention to take matter and allow the
required to prove the same. (Solivio vs. CA, 182 SCRA 119).
judicial notice of any parties to be heard
matter and allow the thereon if such matter is
Q: What are the elements of judicial admission?
parties to be heard decisive of a material
thereon (Sec. 3, Rule issue in the case (ibid).
A:
129).
1. It must be made by a party to the case or his counsel;
2. It must be made in the course of the proceedings in
Note: Hearing is necessary in the foregoing instances to afford the
parties reasonable opportunity to present information relevant to the same case; and
the propriety of taking such judicial notice or the tenor of the 3. It can be verbal or written admission. There is no
matter to be judicially noticed. particular form required. (Regalado, Remedial Law
Compendium, Volume II, p. 836, 2008 ed)
MANDATORY
Q: Distinguish judicial admission from extrajudicial
Q: What is mandatory notice? admission.

A: If the fact sought to be proved are: A:

1. Existence and territorial extent of States; JUDICIAL ADMISSIONS EXTRAJUDICIAL
2. Political history, forms of government and symbols of ADMISSIONS
nationality; Those made in the Those made out of
3. Law of nations; course of the proceeding court or in a judicial
4. Admiralty and maritime courts of the world and their in the same case proceeding other than
seals; the one under
5. Political constitution and history of the Philippines; consideration
6. Official acts of legislative, executive and judicial Do not require proof and Regarded as evidence
departments of the Philippines; may be contradicted only and must be offered as
7. Laws of nature; by showing that it was such, otherwise the
8. Measure of time; and made through palpable court will not consider
9. Geographical divisions. (Sec. 1, Rule 129) mistake or that no such it in deciding the case.
admission was made
DISCRETIONARY (Sec. 4, Rule 129).
Judicial admissions need Requires formal offer
Q: What is meant by discretionary notice? not be offered in for it to be considered
evidence since it is not
A: A court may take judicial notice of matters which are: evidence. It is superior
1. Of public knowledge; to evidence and shall be
2. Capable of unquestionable demonstration; or considered by the court
3. Ought to be known to judges because of their judicial as established.
functions (Sec. 2, Rule 129). Conclusive upon the Rebuttable
admitter
Note: Examples of public knowledge: Admissible even if self- Not admissible if self-
1. The court may take judicial notice of the existence and serving serving
location within the territory over which they exercise Subject to cross- Not subject to cross-
jurisdiction of great rivers and lakes, and their relation to
examination examination
provincial boundaries, of navigability of streams,
constituting highway commerce and notorious facts
concerning the same (Banatao v. Tuliao, 38 Phil. 612). Q: When are judicial admissions made?
2. The Supreme Court took judicial notice that financial
problem is a factor that beset the sugar industry; that A: It may be made by the party himself or by his counsel:
there is crisis in the sugar industry (Hilado v. Leogardo, Jr., 1. In the pleadings filed by the parties;
142 SCRA 286) 2. In the course of the trial either by verbal or written
3. The Supreme Court took judicial notice of the general manifestations or stipulations, including depositions,
increase in rentals of real estate especially of business written interrogatories and requests for admissions; or

367 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

3. In other stages of the judicial proceedings, as in pre- document is a forgery because the genuineness of document is
trial (Binarao vs. Plus Builders, Inc., 491 SCRA 49). impliedly admitted. (Acabal v. Acabal, 454 SCRA 555; PNB v.
Refrigeration Industries, Inc, ibid.)
Q: What are the different forms of judicial admission?
Note: When an action or defense is founded upon a written
instrument, copied in or attached to the corresponding pleading as
A: provided by Sec. 7, the genuineness and due execution of the
1. Verbal verbal waiver of proof made in open court, a instrument shall be deemed admitted unless the adverse party,
withdrawal of contention, or disclosure made before under oath, specifically denies them, and sets forth what he claims
the court, or admission made by witness in his to be the facts; but the requirement of an oath does not apply
testimony or deposition; when the adverse party does not appear to be a party to the
2. Writing pleading, bill of particulars, stipulation of instrument or when compliance with an order for an inspection of
the original instrument is refused. (Sec. 8, Rule 8)
facts, request for admission, or a judicial admission
contained in an affidavit used in the case. (31 C.J.S
Q: What is the rule in case of admissions made in
1069; Programme Inc. v. Province of Bataan, GR No.
amended pleadings?
144635, June 26, 2006)
A: Admissions in a pleading which had been withdrawn or
Q: What remedy is available to a party who gave a judicial
superseded by an amended pleading, although filed in the
admission?
same case, are considered as extrajudicial admissions. The
original must be proved by the party who relies thereon by
A:
formally offering it in evidence (Torres v. CA, G.R. Nos. L-
1. Written admission File a motion to withdraw such
37420-21, July 31, 1984). Pleadings that have been
pleading, or any other written instrument containing
amended disappear from the record, lose their status as
such admission.
pleadings and cease to be judicial admissions, and to be
2. Oral admission The counsel may move for the
utilized as extrajudicial admission, they must, in order to
exclusion of such admission.
have such effect, be formally offered in evidence (Ching v.
Court of Appeals 331 SCRA 16).
Q: What are the two ways in which admissions are made
in pleadings?
Q: What is self-serving evidence?
A:
A: It refers to the extrajudicial statement of a party which is
1. Actual Admission when a party categorically admits a
being urged for admission in court (Regalado,Vol. II, p. 755,
material allegation made by the adverse party.
2008 ed.).
2. Implied Admission when the admission is inferred
from the failure to specifically deny the material
Q: Is a guilty plea made by the accused during his
allegations in the other partys pleadings.
arraignment considered as an admission?
Q: What are the rules on admissions made in pleadings
A: No. A plea of guilty entered by the accused may be later
which were not filed with the court?
withdrawn at any time before the judgment of conviction
becomes final. Such plea is not admissible in evidence
A: Admissions made therein are not judicial admissions
against the accused and is not even considered as an
1. If signed by the party litigant himself considered as
extrajudicial admission.
extrajudicial admission.
2. If signed by the counsel not admissible because a
EFFECT OF JUDICIAL ADMISSIONS
counsel only binds his client with respect to
admissions in open court and in pleadings actually filed
Q: What are the consequences of judicial admissions?
with the court (Riano, Evidence, p. 102, 2009 ed.).
A:
Q: What is the effect of an invalid and ineffective denial of
1. A party who judicially admits a fact cannot later
actionable documents attached to the complaint?
challenge that fact as judicial admissions constitute
waiver of proof; production of evidence is dispensed
A: When an action or defense is founded upon an
with (Riano, Evidence: A Restatement for the Bar, p.
actionable document, the genuineness and due execution
110, 2009 ed. Citing Alfelor v. Halasan, G.R. No.
of the same instrument shall be deemed admitted unless it
165987, March 31, 2006);
is specifically denied under oath. The failure to deny the
2. No evidence is needed to prove a judicial admission
genuineness and due execution of said document amounts
and it cannot be contradicted unless it is shown to
to a judicial admission. (PNB v. Refrigeration Industries, Inc.
have been made through palpable mistake or that no
GR No. 156178, Jan. 20, 2006)
such admission was made (Riano, Evidence: A
Note: But the failure to deny the genuineness and due execution of Restatement for the Bar, p. 110, 2009 ed. Citing
an actionable document does not preclude a party from arguing Arroyo, Jr. vs. Taduran, 421 SCRA 423).
against the document by evidence of fraud, mistake, compromise,
payment, statute of limitations, estoppel and want of HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
consideration. He is however, precluded from arguing that the

UNIVERSITY OF SANTO TOMAS 368

2013 GOLDEN NOTES
 EVIDENCE
Q: How can judicial admissions be contradicted?
A: They may be contradicted by showing:
1. That it was made through palpable mistake;
2. That no such admission was made (Sec. 4)
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS
AND MUNICIPAL ORDINANCE
Q: May courts take judicial notice of foreign laws?
A: GR: Courts cannot take judicial notice of foreign laws.
They must be alleged and proved.
XPN: When said laws are within the actual knowledge
of the court and such laws are:
1. Well and generally known;
2. Actually ruled upon in other cases before it; and
none of the parties claim otherwise (PCIB v.
Escolin, 56 SCRA 266).
Q: Suppose a foreign law was pleaded as part of the
defense of the defendant but no evidence was presented
to prove the existence of said law, what is the
presumption to be taken by the court as to the wordings
of said law? (1997 Bar Question)
A: The doctrine of processual presumption applies. The
presumption is that the wordings of the foreign law are the
same as the local law (Northwest Orient Airlines v. CA, G.R.
No. 83033, June 8, 1990; Moran, Vol. 6, p. 34, 1980 ed.). In
the absence of evidence of the law of the foreign country,
Philippine laws should be applied under this doctrine
(Laureano v. Court of Appeals, 324 SCRA 414).
Note: When foreign law refers to law of nations, said law is subject
to mandatory judicial notice under Sec. 1 Rule 129. Under the
Constitution, the Philippines adopts the generally accepted
principles of International Law as part of the law of the land (Sec. 2,
Art. II, 1987 Constitution). Being part of the law of the land, they
are in nature of local laws (Riano, Evidence, p. 89, 2009 ed.).
Q: What are the rules with regard to judicial notice of
ordinances?
A:
1. MTCs are required to take judicial notice of the
ordinances of the municipality or city wherein they sit.
2. RTCs must take judicial notice of ordinances in force in
the municipalities within their jurisdiction only:
a. When expressly authorized to do so by
statute; or
b. In case on appeal before them and wherein
the inferior court took judicial notice of an
ordinance involved in the same case.
3. Appellate courts may also take judicial notice of
ordinances not only because the lower courts took
judicial notice thereof but because these are facts
capable of unquestionable demonstration (Riano,
Evidence: A Restatement for the Bar, pp. 90-91, 2009
ed.)
369
Q: What is the rule on judicial notice of records of another
case previously tried?
A: GR: Courts are not authorized to take judicial notice of
the contents of the records of other cases, even when such
cases have been tried or are pending in the same court, and
notwithstanding the fact that both cases may have been
heard or are actually pending before the same judge
(Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, Apr. 28,
2005).
XPNs:
1. When in the absence of any objection, with the
knowledge of the opposing party, the contents of
said other cases are clearly referred to by title and
number in a pending action and adopted or read
into the record of the latter;
2. When the original record of the other case or any
part of it is actually withdrawn from the archives at
the courts discretion upon the request, or with the
consent, of the parties, and admitted as part of the
record of the pending case (Jumamil v. Cafe, G.R.
No. 144570, Sept. 21, 2005).
3. When the action is closely interrelated to another
case pending between the same parties;
4. Where the interest of the public in ascertaining the
truth are of paramount importance;
5. In cases seeking to determine what is reasonable
exercise of discretion or whether or not the
previous ruling is applicable in a case under
consideration; or
6. Where there is finality of a judgment in another
case that was previously pending determination and
therefore, res judicata (Herrera, Vol. V, pp. 89-90,
1999 ed.).
Q: Anna and Badong were accused of killing Cathy.
However, only Anna was arrested since Badong went into
hiding. After trial, Anna was acquitted of the charge in a
decision rendered by Judge Santos. Subsequently, Badong
was arrested and brought to trial. After trial, Badong was
found guilty of homicide in a decision rendered by Judge
Yantok, the judge who replaced Judge Santos after the
latter retired. On appeal, Badong argues that Judge
Yantok should have taken judicial notice of the acquittal
of Anna rendered by Judge Santos. Is Badong correct?
A: No. The appreciation of one judge of the testimony of a
certain witness is not binding on another judge who heard
the testimony of the same witness on the same matter.
Each magistrate who hears the testimony of a witness is
called upon to make his own appreciation of the evidence.
It is, therefore, illogical to argue that because one judge
made a conclusion in a certain way with respect to one or
more of the accused; it necessarily dictates that the
succeeding judge who heard the same case against the
other accused should automatically make the same
conclusion (People v. Langit, G.R. Nos. 134757-58, Aug. 4,
2000).
Q: May judicial notice be taken of the financial condition
of the government?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Judicial notice could be taken of the fact that
government is and has for many years been financially
strapped, to the point that even the most essential services
have suffered serious curtailment (La Bugal-BLaan Tribal
Assoc. v. Ramos, 445 SCRA 1).
Q: May judicial notice be taken of the practice of banks in
conducting background checks on borrowers and sureties?
A: Yes. While courts are not mandated to take judicial
notice of this practice under Sec. 1, Rule 129, they
nevertheless may do so under Rule on discretionary judicial
notice (Sec. 2, Rule 129) which provides that the court may
take judicial notice of matters which are of public
knowledge, or ought to be known to judges because of
their judicial functions (Solidbank Corporation v. Mindanao
Ferroally Corpo., 464 SCRA 409).
OBJECT (REAL) EVIDENCE
NATURE OF OBJECT EVIDENCE
Q: What is object evidence?
A: Object evidence, also known as real evidence,
demonstrative evidence, autoptic preference and physical
evidence, is that evidence which is addressed to the senses
of the court (Sec. 1, Rule 130). It is not limited to the view of
an object. It extends to the visual, auditory, tactile,
gustatory, and olfactory. It is considered as evidence of the
highest order.
Note: When physical evidence runs counter to testimonial
evidence, conclusion as to physical evidence must prevail (People
vs. Aguinaldo, 316 SCRA 819).
Q: What are the purposes of authentication of object
evidence?
A:
1. Prevent the introduction of an object different from
the one testified about; and
2. Ensure that there have been no significant changes in
the objects condition.
Q: What is paraffin test?
A: A test which can establish the presence or absence of
nitrates or nitrites on the hand but the test alone cannot
determine whether the source of the nitrates or nitrites
was discharge of a firearm.
Note: The paraffin test is merely corroborative evidence, neither
proving nor disproving that a person did indeed fire a gun. The
positive or negative results of the test can be influenced by certain
factors such as the wearing of gloves by the subject, perspiration of
the hands, wind direction, etc., (People v. Buduhan, G.R. 178196,
August 6, 2008)
Q: Ron was charged with murder for shooting Carlo. After
trial, Ron was found guilty as charged. On appeal, Ron
argued that the trial court should have acquitted him as
his guilt was not proved beyond reasonable doubt. He
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
argues that the paraffin test conducted on him 2 days
after he was arrested yielded a negative result. Hence, he
could not have shot Carlo. Is Ron correct?
A: No. While the paraffin test was negative, such fact alone
did not ipso facto prove that Ron is innocent. A negative
paraffin result is not conclusive proof that a person has not
fired a gun. It is possible to fire a gun and yet be negative
for nitrates, as when the culprit is wearing gloves or he
washes his hands afterwards. Here, since Ron submitted
himself for paraffin testing only two days after the
shooting, it was likely he had already washed his hands
thoroughly, thus removing all traces of nitrates therefrom
(People v. Brecinio, G.R. No. 138534, Mar. 17, 2004).
Q: What is a polygraph test?
A: it is an electromechanical instrument that
simultaneously measures and records certain physiological
changes in the human body that are believed to be
involuntarily caused by an examinees conscious attempt to
deceive the questioner (wests legal thesaurus dictionary,
special deluxe edition, 1986).
REQUISITES FOR ADMISSIBILITY
Q: What are the requisites for the object evidence to be
admissible?
A: It must be
1. relevant and competent;
2. authenticated;
3. authenticated by a competent witness before it is
admitted;
4. offered formally in evidence (Riano, Evidence: A
Restatement for the Bar, p. 147, 2009 ed.).
Q: What does object evidence include?
A:
1. Any article or object which may be known or perceived
by the use of the senses;
2. Examination of the anatomy of a person or of any
substance taken therefrom;
3. Conduct of tests, demonstrations or experiments; and
4. Examination of representative portrayals of the object
in question (e.g. maps, diagrams)
5. Documents, if the purpose is to prove their existence
or condition, or the nature of the handwriting thereon
or to determine the age of the paper used, or the
blemishes or alterations (Regalado,Vol. II, p. 717, 2008
ed.).
6. A persons appearance, where relevant (People vs.
Rullepa, 398 SCRA 567).
Q: May the courts refuse the introduction of object or real
evidence and rely on testimonial evidence alone?
A: Yes, but only if:
1. Its exhibition is contrary to public morals or decency;
Note: But if the exhibition of such object is necessary in the
interest of justice, it may still be exhibited, and the court may
370
 EVIDENCE

exclude the public from such view. Such exhibition may not
be refused if the indecent or immoral objects constitute the
very basis of the criminal or civil action. (Moran, p. 73)
2. To require its being viewed in court or in ocular
inspection would result in delays, inconvenience, or
unnecessary expenses which are out of proportion to
the evidentiary value of such object;
3. Such object evidence would be confusing or
misleading, as when the purpose is to prove the
former condition of the object and there is no
preliminary showing that there has been no
substantial change in said condition; or
4. The testimonial or documentary evidence already
presented clearly portrays the object in question as to
render a view thereof unnecessary (Regalado, Vol. II,
p. 716, 2008 ed).
from the [accused]'s own lips, against his will, admission of
his guilt. It does not apply to the instant case where the
evidence sought to be excluded is not an incriminating
statement but an object evidence. Infractions on the so-
called Miranda rights render inadmissible only the
extrajudicial confession or admission made during custodial
investigation. The admissibility of other evidence is not
affected even if obtained or taken in the course of custodial
investigation. Concededly, Thor was not informed of his
rights during the custodial investigation. Neither did he
execute a written waiver of these rights in accordance with
the constitutional prescriptions. Nevertheless, these
constitutional shortcuts do not affect the admissibility of
the victim's wallet and its contents (People v. Malimit, G.R.
No. 109775, Nov. 14, 1996).
CATEGORIES OF OBJECT EVIDENCE

Q: In a criminal case for murder, the prosecution offered Q: What are the categories of object evidence for
as evidence, photographs showing the accused mauling purposes of authentication?
the victim with several of the latters companions. The
person who took the photograph was not presented as a A:
witness. Be that as it may, the prosecution presented the 1. Unique objects those that have readily identifiable
companions of the victim who testified that they were the marks (e.g. a calibre 40 gun with serial number
ones in the photographs. The defense objected to the XXX888)
admissibility of the photographs because the person who 2. Objects made unique those that are made readily
took the photographs was not presented as witness. Is the identifiable (e.g. a bolo knife used to hack a victim
contention of the defense tenable? which could be identified by a witness in court)
3. Non-unique objects those which have no identifying
A: No. Photographs, when presented in evidence, must be marks and cannot be marked (e.g. drops of blood)
identified by the photographer as to its production and (Riano, Evidence: A Restatement for the Bar, p. 148,
testified as to the circumstances under which they were 2009 ed.).
produced. The value of this kind of evidence lies in its being
a correct representation or reproduction of the original, DEMONSTRATIVE EVIDENCE
and its admissibility is determined by its accuracy in
portraying the scene at the time of the crime. Real evidence Demonstrative Evidence
Tangible object that Tangible evidence that
The photographer, however, is not the only witness who played some actual role merely illustrates a
can identify the pictures he has taken. The correctness of in the matter that gave matter of importance in
the photograph as a faithful representation of the object rise to the litigation the litigation
portrayed can be proved prima facie, either by the
Intends to prove that Intends to show that the
testimony of the person who made it or by other
the object is used in the demonstrative object
competent witnesses who can testify to its exactness and
underlying event fairly represents or
accuracy, after which the court can admit it subject to
illustrates a real evidence
impeachment as to its accuracy. Here, the photographs are
admissible as evidence inasmuch as the correctness thereof
Illustration : Where a
was testified to by the companions of the victim (Sison v.
drawing is presented to
People, G.R. Nos. 108280-83, Nov. 16, 1995).
illustrate the relative
positions of the
Q: Appellant Thor was charged with and convicted of the
protagonists and
special complex crime of robbery with homicide by the
witnesses to the killing,
trial court. On his appeal, he asseverates that the
the foundation for
admission as evidence of victim's wallet together with its
demonstrative evidence
contents, violates his right against self-incrimination.
will normally consist of
Likewise, Thor sought for their exclusion because during
the testimony of an
the custodial investigation, wherein he pointed to the
eyewitness or investigator
investigating policemen the place where he hid the
stating that the drawing
victim's wallet, he was not informed of his constitutional
was indeed fairly
rights (Miranda rights). Decide the case.
represents the position of
those present in the event
A: The right against self-incrimination guaranteed under
(Francisco, Evidence, p.
our fundamental law finds no application in this case. This
40, 1996 ed.).
right is simply a prohibition against legal process to extract

371 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

VIEW OF AN OBJECT OR SCENE transfer of custody were made in the course of safekeeping
and used in court as evidence and the final disposition (Sec.
Q: When is it proper for the court to go to the place where 1, DDB Reg. No. 1, Series of 2002).
the object in question is and observe it?

A: Where the object in question cannot be produced in

court because it is immovable or inconvenient to remove, it
is proper for the tribunal to go to the object in its place and
there observe it (Francisco, Evidence, p. 52, 1996 ed.). An
ocular inspection conducted by the judge without the
presence of the parties or due notice is not valid, as an
ocular inspection is part of the trial (Regalado, Volume II p.
715, 2008 ed. citing Adan vs. Abucejo-Luzano, etc., A.M. No.
MTJ-00-1298, Aug. 3, 2000).

Note: In cases involving violations of the Dangerous Drugs Act,

CHAIN OF CUSTODY IN RELATION TO SECTION 21 OF THE credence is given to prosecution witnesses who are police officers
COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002 for they are presumed to have performed their duties in a regular
manner, unless there is evidence to the contrary suggesting ill-
Q: What is the chain of custody? motive on the part of the police officers (People vs. Unisa, 368
SCRA 305).
A: It is the duly recorded authorized movements and
Q: What is the purpose of establishing a chain of custody?
custody of seized drugs or controlled chemicals or plant
sources of dangerous drugs or laboratory equipment of
A: To guarantee the integrity of the physical evidence and
each stage, (1) from the time of seizure/confiscation to (2)
to prevent the introduction of evidence which is not
receipt in the forensic laboratory to (3) safekeeping to (4)
authentic but where the exhibit is positively identified the
presentation in court for destruction. Such record of
chain of custody of physical evidence is irrelevant.
movements and custody of seized item shall include the
identity and signature of the person who held temporary
custody of the seized item, the date and time when such

UNIVERSITY OF SANTO TOMAS 372

2013 GOLDEN NOTES
 EVIDENCE
Q: What is the rule in case of non-compliance with the
procedure?
A: Non-compliance with the procedure shall not render
void and invalid the seizure of and custody of the drugs only
when:
1. Such non-compliance was under justifiable grounds;
and
2. The integrity and the evidentiary value of the seized
items are properly preserved by the apprehending
team. (People v. Dela Cruz, G.R. No. 177222, Oct.
29,2008; People v. Rivera, G.R. No. 182347, Oct. 17,
2008; Sec. 21 (a), Art. II, IRR of RA 9165).
Note: What is of utmost importance is the preservation of the
integrity and evidentiary value of the seized items, as the same
would be utilized in the determination of the guilt or innocence of
the accused. The existence of the dangerous drug is a condition
sine qua non for conviction for the illegal sale of dangerous drugs.
The dangerous drug itself constitutes the very corpus delicti of the
crime and the fact of its existence is vital to a judgment of
conviction. The chain of custody requirement performs the
function of ensuring that the integrity and evidentiary value of the
seized items are preserved, so much so that unnecessary doubts as
to the identity of the evidence are removed (People v. Rivera,
ibid.).
Q: When is there a need to establish a chain of custody?
A: It is necessary when the object evidence is non-unique as
it is not readily identifiable, was not made identifiable or
cannot be made identifiable, e.g. drops of blood or oil,
drugs in powder form, fiber, grains of sand and similar
objects. (Riano, Evidence: A Restatement for the Bar, p. 149,
2009 ed)
RULE ON DNA EVIDENCE
(A.M. NO. 06-11-5- SC)
Q: In what situations does the Rule on DNA Evidence
apply?
A: It shall apply whenever DNA evidence is offered, used, or
proposed to be offered or used as evidence in all criminal
and civil actions as well as special proceedings (Sec. 1, AM
No. 06-11-5-SC).
MEANING OF DNA
Q: What is DNA?
A: DNA (deoxyribonucleic acid) is the chain of molecules
found in every nucleated cell of the body (Sec. 3, AM No.
06-11-5-SC). It is the fundamental building block of a
persons entire genetic make-up, which is found in all
human cells and is the same in every cell of the same
person (People v. Umanito, G.R. No. 172607, Oct. 26, 2007).
Q: What is DNA profile?
373
A: Is the genetic information derived from DNA testing of a
biological sample obtained from a person, which biological
sample is clearly identifiable as originating from that person
(Sec. 3(d), AM No. 06-11-5-SC).
Q: What is DNA evidence?
A: It constitutes the totality of the DNA profiles, results and
other genetic information directly generated from DNA
testing of biological samples (Sec. 3(c), AM No. 06-11-5-SC).
Q: What is DNA testing?
A: It means verified and credible scientific methods which
include the extraction of DNA from biological samples, the
generation of DNA profiles and the comparison of the
information obtained from the DNA testing of biological
samples for the purpose of determining, with reasonable
certainty, whether or not the DNA obtained from two or
more distinct biological samples originates from the same
person (direct identification) or if the biological samples
originate from related persons (Kinship Analysis) (Sec. 3(e),
AM No. 06-11-5-SC).
Note: The scientific basis of this test comes from the fact that our
differences as individuals are due to the differences in the
composition of our genes. These genes comprise a chemical
substance, the deoxyribonucleic acid or DNA [The Court Systems
Journal (1999)].
Q: What is the significance of DNA?
A: The significance lies in the uniqueness of the totality of
the DNA of a person. It is a scientific fact that the totality of
individuals DNA is unique for the individual, except
identical twins (Sec. 3, AM No. 06-11-5-SC).
Q: During Alexis trial for rape with murder, the
prosecution sought to introduce DNA evidence against
him, based on forensic laboratory matching of the
materials found at the crime scene and Alexis hair and
blood samples. Alexis counsel objected, claiming that
DNA evidence is inadmissible because the materials taken
from Alexis were in violation of his constitutional right
against self-incrimination as well as his right of privacy
and personal integrity. Should the DNA evidence be
admitted or not? Reason. (2004 Bar Question)
A: The DNA evidence should be admitted. It is not in
violation of the constitutional right against self-
incrimination or his right of privacy and personal integrity.
The right against self-incrimination is applicable only to
testimonial evidence. Extracting a blood sample and cutting
a strand from the hair of the accused are purely mechanical
acts that do not involve his discretion nor require his
intelligence.
APPLICABLE FOR DNA TESTING ORDER
Q: How may an order for DNA testing be obtained?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: A person who has a legal interest in the litigation may file
an application before the appropriate court, at any time
(Sec. 4, AM No. 06-11-5-SC).
The order for a DNA testing shall not however, be issued as
a matter of course and from the mere fact that the person
requesting for the testing has a legal interest in the
litigation. For the order to be issued, there must be a
further showing that:
1. A biological sample exists that is relevant to the
case;
2. The biological sample:
a. was not previously subjected to the type of
DNA testing now requested; or
b. was previously subjected to DNA testing, but
the results may require confirmation for good
reasons;
3. The DNA testing uses a scientifically valid technique;
4. The DNA testing has the scientific potential to
produce new information that is relevant to the proper
resolution of the case; and
5. The existence of other factors, if any, which the
court may consider as potentially affecting the accuracy
or integrity of the DNA testing (Sec. 4 AM No. 06-11-5-
SC).
Finding that the above requirements have been complied
with, the court shall now issue an order, if appropriate to:
a. take biological samples from any person or crime
scene evidence;
b. impose reasonable conditions on the testing to
protect integrity of the biological sample and the
reliability of the test results (Sec. 5, AM No. 06-
11-5-SC).
Q: Is a court order always required before undertaking a
DNA testing?
A: No. The Rules on DNA Evidence allows a testing without
prior court order if done before a suit or proceeding is
commenced at the behest of any party including law
enforcement agencies. This also means that a litigation
need not exist prior to DNA testing. Thus, a court order
shall be required only if there is a pending litigation but not
before the litigation (Sec. 4, AM No. 06-11-5-SC).
Q: Is the order granting the DNA testing appealable?
A: No. An order granting the DNA testing shall be
immediately executory and shall not be appealable. Any
petition for certiorari initiated therefrom shall not, in any
way, stay the implementation thereof, unless a higher court
issues an injunctive order (Sec. 5, AM No. 06-11-5-SC).
Q: Is the result of DNA testing automatically admitted as
evidence in the case in which it was sought for?
A: No. The grant of a DNA testing application shall not be
construed as an automatic admission into evidence of any
component of the DNA evidence that may be obtained as a
result thereof (Sec. 5, AM No. 06-11-5-SC).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What should the courts consider in evaluating DNA
testing results?
A:
1. The evaluation of the weight of matching DNA
evidence or the relevance of mismatching DNA
evidence;
2. The results of the DNA testing in the light of the
totality of the other evidence presented in the case;
and
3. DNA results that exclude the putative parent from
paternity shall be conclusive proof of non-paternity
(Sec. 9, AM No. 06-11-5-SC).
Q: If a DNA test was conducted, what are the possible
results that it may yield?
A:
1. The samples are similar, and could have originated
from the same source (Rule of Inclusion). In such a
case, the analyst proceeds to determine the statistical
significance of the similarity.
2. The samples are different hence it must have
originated from different sources (Rule of Exclusion).
This conclusion is absolute and requires no further
analysis;
3. The test is inconclusive. This might occur due to
degradation, contamination, failure of some aspect of
protocol, or some other reasons. Analysis might be
repeated to obtain a more conclusive result (People v.
Vallejo, G.R. No. 144656, May 9, 2002).
Q: Are the DNA profiles of a person open to public
scrutiny?
A: DNA profiles and all results or other information
obtained from DNA testing shall be confidential. Except
upon order of the court, a DNA profile and all results or
other information obtained from DNA testing shall only be
released to any of the following, under such terms and
conditions as may be set forth by the court:
1. Person from whom the sample was taken;
2. Lawyers of private complainants in a criminal
action;
3. Duly authorized law enforcement agencies; and
4. Other persons as determined by the court
(Sec.11).
Note: Whoever discloses, utilizes or publishes in any form any
information concerning a DNA profile without the proper court
order shall be liable for indirect contempt of the court wherein
such DNA evidence was offered, presented or sought to be offered
and presented. (Ibid.)
DNA TESTING IN DETERMINING PATERNITY
1. DNA analysis that excludes the putative father from
paternity should be conclusive proof of non-paternity.
2. If the value of Probability of Paternity is less than 99.9%,
the results of the DNA analysis should be considered as
corroborative evidence.
374
 EVIDENCE
3. If the value of Probability of Paternity is 99.9% or higher,
then there is refutable presumption of paternity.
This refutable presumption of paternity should be
subjected to the Vallejo standards. (Herrera v. Alba, G.R.
No. 148220, June 15, 2005)
Q: What is the Vallejo Standard?
A: In assessing the probative value of DNA evidence,
therefore, courts should consider, among others things, the
following data:
a. how the samples were collected,
b. how they were handled,
c. the possibility of contamination of the samples,
d. the procedure followed in analyzing the samples,
e. whether the proper standards and procedures were
followed in conducting the tests, and
f. the qualification of the analyst who conducted the
tests. (People vs. Vallejo, G.R. No. 144656 May 9,
2002)
POST-CONVICTION DNA TESTING; REMEDY
Q: To whom is the post-conviction DNA testing available?
A: Post-conviction DNA testing may be available, without
need of prior court order, to the prosecution or any person
convicted by final and executory judgment (Sec. 6, Rules on
DNA Evidence).
Q: What are the requisites for the applicability of the Post-
conviction DNA testing?
A:
1. Existing biological sample;
2. Such sample is relevant to the case; and
3. The testing would probably result in the reversal or
modification of the judgment of conviction (Sec. 6).
Q: What is the remedy of the convict if the post-conviction
DNA testing result is favorable to him?
A: Either the convict or the prosecution may file a petition
for a writ of habeas corpus in the court of origin. In case the
court, after due hearing, finds the petition to be
meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless
continued detention is justified for a lawful cause (Sec. 10).
The petition shall be filed in the court of origin as a rule.
However, the rule also allows the petition to be filed either
in the CA or in the SC, or with any member of said courts. A
hearing may be conducted by the latter courts or by any
member thereof or instead of conducting a hearing, may
instead remand the petition to the court of origin and issue
the appropriate orders (Sec. 10).
ASSESSMENT OF PROBATIVE VALUE OF DNA EVIDENCE
AND ADMISSIBILITY
Q: What should the courts consider in determining the
probative value of DNA evidence?
375
A:
1. The chain of custody, including how the biological
samples were collected, how they were handled, and
the possibility of contamination of the samples;
2. The DNA testing methodology, including the
procedure followed in analyzing the samples, the
advantages and disadvantages of the procedure, and
compliance with the scientifically valid standards in
conducting the tests;
3. The forensic DNA laboratory, including accreditation
by any reputable standards-setting institution and the
qualification of the analyst who conducted the tests. If
the laboratory is not accredited, the relevant
experience of the laboratory in forensic casework and
credibility shall be properly established; and
4. The reliability of the testing result (Sec. 7, AM No. 06-
11-5-SC).
Note: The provisions of the Rules of Court concerning the
appreciation of evidence shall apply suppletorily. (Ibid.)
RULES ON EVALUATION OF RELIABILITY OF THE DNA
TESTING METHODOLOGY
Q: What are the things to be considered in evaluating
whether or not the DNA testing methodology is reliable?
A:
1. The falsifiability of the principles or methods used,
that is, whether the theory or technique can be and
has been tested;
2. The subjection to peer review and publication of the
principles or methods;
3. The general acceptance of the principles or methods
by the relevant scientific community;
4. The existence and maintenance of standards and
controls to ensure the correctness of data generated;
5. The existence of an appropriate reference population
database; and
6. The general degree of confidence attributed to
mathematical calculations used in comparing DNA
profiles and the significance and limitation of statistical
calculations used in comparing DNA profiles (Sec. 8)
DOCUMENTARY EVIDENCE
MEANING OF DOCUMENTARY EVIDENCE
Q: What is a document?
A: A document is a deed, instrument or other duly
notarized paper by which something is proved, evidenced
or set forth.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Note: Any instrument notarized by a notary public or a competent A:

public official, with the solemnities required by law, is a public
document. Pleadings filed in a case and in the custody of the clerk
of court are public documents. All other documents are private
documents (Bermejo vs. Barrios, 31 SCRA 764).
1. The documents should be authenticated and proved in
the manner provided in the Rules of Court; (Chua v. CA,
G.R. No. 88383 February 19, 1992)

2. The documents should be indentified and marked; and

Q: What does document as evidence mean?
3. They should be formally offered to the court and shown
A: Documents as evidence consist of writings or any
to the opposing party so that the latter may have the
material containing letters, words, numbers, figures,
opportunity to object thereto (Ramcar, Inc. vs. Hi-power
symbols, or other modes of written expressions, offered as
Marketing, 495 SCRA 375).
proof of their contents (Sec. 2 Rule 130).
Q: When Linda died, her common law husband, Lito and
Q: How may the contents of a document be proved?
their alleged daughter, Nes, executed an extrajudicial
partition of Lindas estate. Thereafter, the siblings of Linda
A: They may be proved by the testimony of:
filed an action for partition of Lindas estate and
1. Any person who signed the document;
annulment of titles and damages with the RTC. The RTC
2. Any person who read it;
dismissed the complaint and ruled that Nes was the
3. Any person who heard when the document was being
illegitimate daughter of the decedent and Lito based
read;
solely on her birth certificate, which on closer
4. Any person who was present when the contents of the
examination, reveals that Nes was listed as adopted by
document were talked over by the parties to such an
both Linda and Lito. Is the trial court correct?
extent as to give him reasonably full information of the
contents; or
A: No. A record of birth is merely a prima facie evidence of
5. Any person to whom the parties have stated or
the facts contained therein. It is not conclusive evidence of
confessed the contents thereof.
the truthfulness of the statements made there by the
interested parties. Nes should have adduced evidence of
Q: What are the two categories of documents as
her adoption, in view of the contents of her birth
evidence?
certificate. The mere registration of a child in his or her
birth certificate as the child of the supposed parents is not
A:
a valid adoption, does not confer upon the child the status
1. Writings;
of an adopted child and the legal rights of such child, and
2. Any other material containing modes of written
even amounts to simulation of the child's birth or
expressions the material contains letters, words,
falsification of his or her birth certificate, which is a public
numbers, figures, symbols or other modes of written
document. The records however are bereft of any such
expression and offered as proof of their contents.
evidence (Rivera v. Heirs of Villanueva, G.R. No. 141501,
(Riano, ibid., p. 176)
July 21, 2006).
Q: When may a tape-recording be considered as
BEST EVIDENCE RULE
documentary evidence?
MEANING OF THE RULE
A: if a tape recording is played in order to show that
particular words were uttered it will constitute a
Q: What is best evidence rule?
documentary evidence. However if it is played to simply
show that words were uttered in a particular accent, then it
A: It provides that when the subject of the inquiry is the
is an object evidence (Francisco, Evidence, p.54, 1996).
contents of the document, no evidence shall be admissible
other than the original document itself.
Q: May a private document be offered and admitted in
evidence both as documentary evidence and object
XPNs:
evidence? (2005 Bar Question)
1. When the original has been lost or destroyed, or
cannot be produced in court, without bad faith on
A: Yes. It is object evidence, when it is addressed to the
the part of the offeror;
senses of the court or when it is presented in order to
establish certain physical evidence or characteristics that
Note: Secondary evidence may be presented
are visible on the paper and the writings that comprise the provided the offeror proves the following:
document. It is considered as documentary evidence when
it is offered as proof of its contents. 1. Execution or existence of the original
document;
REQUISITES FOR ADMISSIBILITY 2. The cause of its unavailability; and
3. The unavailability of the original is not due to
Q: What is the procedure in presenting documentary bad faith on his part. (Sec. 5, Rule 130)
evidence in court?
2. When the original is in the custody or under the
control of the party against whom the evidence is

UNIVERSITY OF SANTO TOMAS 376

2013 GOLDEN NOTES
 EVIDENCE
offered, and the latter fails to produce it after
reasonable notice;
Note: Secondary evidence may be presented
provided that the requisites for its admissibility
are followed:
a. The original is in the possession or under the
control of the opponent;
b. Demand or notice is made to him by the
proponent signifying that the document is
needed;
c. Failure or refusal of opponent to produce
document in court; and
d. Satisfactory proof of existence of original
document (Sec. 6, Rule 130).
3. When the original consists of numerous accounts
or other documents which cannot be examined in
court without great loss of time and the fact
sought to be established from them is only the
general result of the whole;
Note: A summary of the documents or a chart may
then be presented as evidence.
4. When the original is a public record in the custody
of a public officer or is recorded in a public office
(Sec. 3, Rule 130).
Note: Written official acts, or records of the
official acts of the sovereign authority, official
bodies and tribunals, and public officers, e.g. a
written foreign law, may be evidenced by:
a. If it is within the Philippines
i. An official publication thereof; or
ii. By a copy attested by the officer
having the legal custody of the
record, or by his deputy.
b. If it is kept in a foreign country
i. An official publication thereof; or
ii. By a copy attested by the officer
having the legal custody of the
record, or by his deputy and
accompanied with a certificate
that such officer has the custody.
The certificate may be made by a
secretary of the embassy or
legation, consul general, consul,
vice consul, or consular agent or
by any officer in the foreign
service of the Philippines
stationed in the foreign country in
which the record is kept, and
authenticated by the seal of his
office (Sec. 24, Rule 132).
Note: Where the issue is only as to whether such a document was
actually executed, or exists, or on the circumstances relevant to or
surrounding its execution or delivery (external facts), the best
evidence rule does not apply and testimonial evidence is
admissible (5 Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78).
Q: Valencia was charged with dishonesty, it was alleged
that his SALN was not reflective of his actual net worth. In
the proceedings with the Office of the Ombudsman, the
evidence that were presented were photocopies of his
377
credit card transactions. He was dismissed by the
Ombudsman. Can photocopies be the basis of his
conviction in the administrative case to establish
substantive evidence?
A: In an administrative proceeding, the law does not
require evidence beyond reasonable doubt or
preponderance of evidence. Substantial evidence is
enough. This presupposes, however, that the evidence
proffered is admissible under the rules. With respect to
photocopied private documents, the rule is that before it
can be considered admissible in evidence, its due execution
or genuineness should first be shown. Failing in this, the
photocopies are inadmissible in evidence; at the very least,
it has no probative value. (Office of the Ombudsman, vs.
Manuel P. Valencia, G.R. No. 183890, April 13, 2011)
Q: What is the reason underlying the adoption of the best
evidence rule? (1998 Bar Question)
A: There is a need to present to the court the exact words
of a writing where a slight variation of words may mean a
great difference in rights. It is also for the prevention of
fraud or mistake in the proof of the contents of a writing.
Q: Why is the best evidence rule often described as a
misnomer?
A: Despite the word best, the rule does not proclaim itself
as the highest and most reliable evidence in the hierarchy
of evidence. The term best has nothing to do with the
degree of its probative value in relation to other types of
evidentiary rules. It is not intended to mean the most
superior evidence. More accurately, it is the original
document rule, or primary evidence rule (Riano, Evidence,
p. 183, 2009 ed.).
Q: What is collateral facts rule?
A: A document or writing which is merely collateral to the
issue involved in the case on trial need not be proved.
Where the purpose of presenting a document is not to
prove its contents, but merely to give coherence to, or to
make intelligible the testimony of a witness regarding a fact
contemporaneous to the writing, the original of the
document need not be presented.
WHEN APPLICABLE
Q: When is the best evidence rule applicable?
A: For the best evidence rule to apply, the following
requisites must concur:
1. The subject matter must involve a document; and
2. The subject of the inquiry is the contents of the
document.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Note: When the truth of the document is in issue and not the Q: When Anna loaned a sum of money to Blair, Anna
contents thereof, the best evidence rule will not be applicable. In typed a single copy of the promissory note, which they
such case, it is the hearsay rule that will apply (Riano, Evidence: A both signed. Anna made two photocopies of the
Restatement for the Bar, p. 190, 2009 ed).
promissory note, giving one copy to Blair and retaining the
other copy. Anna entrusted the typewritten copy to his
Q: At a trial for violation of the Dangerous Drugs Act, the
counsel for safekeeping. The copy with Anna's counsel
prosecution offers in evidence a photocopy of the marked
was destroyed when the law office was burned.
P100.00 bills used in the buy-bust operation. The
1. In an action to collect on the promissory note, which
accused objects to the introduction of the photocopy on
is deemed to be the "original" copy for the purpose
the ground that the best evidence rule prohibits the
of the best evidence rule?
introduction of secondary evidence in lieu of the original.
2. Can the photocopies in the hands of the parties be
1. Is the photocopy real (object) evidence or
considered "duplicate original copies"?
documentary evidence?
3. As counsel for Anna, how will you prove the loan
2. Is the photocopy admissible in evidence? (1994 Bar
given by Anna to Blair? (1997 Bar Question)
Question)
A:
A:
1. The copy that was signed and lost is the only "original"
1. It is real (object) evidence, because the contents of the
copy for purposes of the best evidence rule (Sec. 4 [b],
marked bills are not in issue.
Rule 130).
2. Yes, it is admissible in evidence, because the best
2. No, because they are merely photocopies which were
evidence rule does not apply to object or real
not signed (Mahilum v. CA, G.R. No. L-17970, July 10,
evidence. The best evidence rule is inapplicable since
1966). They constitute secondary evidence (Sec. 5,
such secondary evidence is only intended to establish
Rule 130).
the existence of a transaction and not the contents of
the document.
3. It may be proved by secondary evidence through the
photocopies of the promissory note. When the original
MEANING OF ORIGINAL
document is lost or destroyed, or cannot be produced
in court, the offeror, upon proof of its execution or
Q: What is original document?
existence and the cause of its unavailability without
bad faith on his part, may prove its contents by a copy,
A: There are three concepts of original document:
or by a recital of its contents in some authentic
1. The original of a document is one the contents of
document, or by the testimony of witnesses in the
which are the subject of inquiry;
order stated (Sec. 5, Rule 130).
2. When a document is in two or more copies executed
at or about the same time, with identical contents,
REQUISITES FOR INTRODUCTION OF SECONDARY
including signed carbon copies, all such copies are
EVIDENCE
equally regarded as originals; or
Q: What is secondary evidence?
Note: When carbon sheets are inserted between two
or more sheets of writing paper so that the writing of a
A: Secondary evidence refers to evidence other than the
contract upon the outside sheet, including the
original instrument or documents itself. It is the class of
signature of the party to be charged thereby, produces
evidence that is relevant to the fact in issue, it being first
a facsimile upon the sheets beneath, such signature
shown that the primary evidence of the fact is not
being thus reproduced by the same stroke of pen
obtainable. It performs the same functions as that of
which made the surface or exposed impression, all of
primary evidence (EDSA Shangri-La Hotel and Resort, Inc., v.
the sheets so written on are regarded as duplicate
BF Corporation, GR 145873, June 27, 2008; Francisco, p. 68,
originals and either of them may be introduced in
1992 ed.).
evidence as such without accounting for the
nonproduction of the others (Trans-pacific Industrial Note: All duplicates or counter parts of such document must first
supplies v. CA, G.R. No. 109172 Aug. 19, 1994). be accounted before one can resort to secondary evidence. It must
appear that all of them have been lost or destroyed or cannot be
3. When an entry is repeated in the regular course of produced in court. The non-production of the original document,
business, one being copied from another at or near unless it falls under any of the exceptions in Sec. 3, Rule 130, gives
the time of the transaction, including entries in rise to the presumption of suppression of evidence (De Vera, et al.
journals and ledgers, all the entries are likewise vs. Aguilar, et al. G.R. No. 83377, Feb. 9, 1993).
equally regarded as originals (Sec. 4, Rule 130).
Q: What are the requisites before the contents of the
Note: Writings with identical contents made by printing, original document may be proved by secondary evidence?
mimeographing, lithography and other similar methods
executed at the same time are considered as original A: The offeror must prove the following:
document. Thus, each newspaper sold in the stand is an a. Execution or existence of the original document;
original in itself (Riano, Evidence, p. 202, 2009 ed.). b. The cause of its unavailability; and

UNIVERSITY OF SANTO TOMAS 378

2013 GOLDEN NOTES
 EVIDENCE
c. The unavailability of the original is not due to bad faith
on his part. (Sec. 5, Rule 130)
Accordingly, the correct order of proof is as follows:
EXISTENCE, EXECUTION, LOSS, AND CONTENTS. This order
may be changed if necessary at the sound discretion of the
court (Citibank N.A. Mastercard v. Teodoro, G.R. No.
150905, Sept. 23, 2003).
Note: Intentional destruction of the originals by a party who acted
in good faith does not preclude the introduction of secondary
evidence of the contents thereof (Regalado, Remedial Law
Compendium, Vol II, p. 724, 2008 ed. Or 10th ed.).
Q: How may the due execution of the document be
proved?
A: It may be proved through the testimony of:
1. The person who executed it;
2. The person before whom its execution was
acknowledged;
3. Any person who was present and saw it executed and
delivered;
4. Any person who thereafter saw and recognized the
signature;
5. One to whom the parties, thereto had previously
confessed the execution thereof; or
6. By evidence of the genuineness of the signature or
handwriting of the maker (Sec. 20, Rule 132).
Q: How may the loss or destruction be proved?
A: It may be proved by:
1. Any person who knew of such fact;
2. Anyone who, in the judgment of the court, had made
sufficient examination in the places where the
document or papers of similar character are usually
kept by the person in whose custody the document
was and has been unable to find it; or
3. Any person who has made any other investigation
which is sufficient to satisfy the court that the
document is indeed lost.
Q: Is it necessary to prove the loss of the document
beyond all possibility of mistake?
A: No. A reasonable probability of its loss is sufficient, and
this may be shown by a bona fide and diligent search,
fruitlessly made, in places where it is likely to be found
(Paylago v. Jarabe, 22 SCRA 1247).
Q: What is the order of presentation of secondary
evidence in order to prove the contents thereof?
A: Upon proof of its execution and loss of the original
document, its contents may be proved by:
CORWIT
1. Copy of the original;
2. Recital of the contents of the document in some
authentic document; or
3. By the testimony of witnesses (Sec. 5, Rule 130)
379
Note: The hierarchy of preferred secondary evidence must strictly
followed.
Q: What is definite evidentiary rule?
A: Where the law specifically provides for the class and
quantum of secondary evidence to establish the contents of
a document, or bars secondary evidence of a lost
document, such requirement is controlling. E.g. Evidence of
a lost notarial will should consist of a testimony of at least
two credible witnesses who can clearly and distinctly
establish its contents. (Sec. 6, Rule 76; Regalado, Remedial
Law Compendium, Vol II, p. 724, 2008 ed)
Q: May the presentation or the offer of the original be
waived?
A: Yes, if the party against whom the secondary evidence is
offered does not object thereto when the same is offered in
evidence, the secondary evidence becomes primary
evidence. But even admitted as primary evidence, its
probative value must still meet the various tests by which
its reliability is to be determined. Its admissibility should
not be confused with its probative value (Heirs of Teodoro
De la Cruz v. CA, G.R. No. 117384, Oct. 21, 1998).
Q: What facts must be shown by the party offering
secondary evidence if the original is in the custody of the
adverse party?
A:
1. The original is in the possession or under the control of
the opponent;
2. Demand or notice is made to him by the proponent
signifying that the document is needed;
Note: There is no particular form of notice is required, to be
given to the adverse party, as long as it fairly appraises the
other party as to what papers are desired. Even an oral
demand in open court for such production at a reasonable
time thereafter will suffice. Such notice must, however, be
given to the adverse party, or his attorney, even if the
document is in the actual possession of a third person.
(Regalado, Vol. II, p. 726, 2008 ed)
3. Failure or refusal of opponent to produce document in
court; and
Note: A justified refusal or failure of the adverse party to
produce the original document will not give rise to the
presumption of suppression of evidence, or create an
unfavorable inference against him. It only authorizes the
presentation of secondary evidence. (Regalado, Vol. II, p. 727,
2008 ed)
4. Satisfactory proof of existence of original document
(Sec. 6, Rule 130).
Q: Paula filed a complaint against Lynette for the recovery
of a sum of money based on a promissory note executed
by the latter. During the hearing, Paula testified that the
original note was with Lynette and the latter would not
surrender to Paula the original note which Lynette kept in
a place about one day's trip from where she received the
notice to produce the note and in spite of such notice to
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

produce the same within 6 hours from receipt of such
notice, Lynette failed to do so. Paula presented a copy of
the note which was executed at the same time as the
original and with identical contents. Over the objection of
Lynette, can Paula present a copy of the promissory note
and have it admitted as valid evidence in her favor? Why?
(2001 Bar Question)
A: Yes. Although the failure of Lynette to produce the
original of the note is excusable since she was not given
reasonable notice, a requirement under the Rules before
secondary evidence may be presented, the copy in
possession of Paula is not a secondary evidence but a
duplicate original because it was executed at the same
time as the original and with identical contents. Hence,
being the best evidence, the rule on secondary evidence
need not be complied with.
Note: The promissory note is an actionable document and the
original or a copy thereof should have been attached to the
complaint (Sec. 7, Rule 8). In such a case, the genuineness and due
execution of the note, if not denied under oath, would be deemed
admitted (Sec. 8, Rule 9).
Q: What is the effect of not offering a document in
evidence after calling for its production and inspection?
A: If the party who calls for the production of a document
does not offer the same in evidence, no unfavorable
inference may be drawn from such failure. This is because a
party who calls for the production of a document is not
required to offer it (Sec. 8, Rule 130).
1. The original must consist of numerous accounts or
other documents;
2. They cannot be examined in court without great loss
of time; and
3. The fact sought to be established from them is only
the general result of the whole (Sec. 3c, Rule 130)
Note: The production of the original writings and their examination
in court would result in great loss of time considering that the
evidence desired from the voluminous accounts is only the general
result of the whole like a summary of the accounts.
Q: What secondary evidence may be offered in lieu of
document consists of numerous accounts to prove its
contents?
A: A witness may be allowed to offer a summary of a
number of documents, or summary of the contents may be
admitted if documents are so voluminous and intricate as
to make an examination of all of them impracticable. They
may also be presented in the form of charts or calculations
(Riano, Evidence, p. 200, 2009 ed.).
Note: Voluminous records must be made accessible to the adverse
party so that the correctness of the summary of the voluminous
records may be tested on cross-examination (Compania Maritima
v. Allied Free Workers Union, et. al, G.R. No. L-28999, May 24,
1977).
Q: How may the contents of the document be proved
when the original is a public record or in the custody of a
public officer?

Q: What are the distinctions between the production of A: The contents may be proved by:
documents under Sec. 8, Rule 130 and Rule 27 (mode of 1. A certified copy issued by the public officer in custody
discovery)? thereof (Sec. 7, Rule 130); and
2. Official publication (Herrera, Vol. V, p. 203, 1999 ed.).
A:
Note: Public records are generally not to be removed from the
Sec. 8, Rule 130 Rule 27
places where they are recorded and kept (Sec. 26, Rule 132).
Procured by mere The production of Hence, proof of the contents of a document which forms part of a
notice to the adverse document is in the public record may be done by secondary evidence.
party, which is a nature of a mode of
condition precedent for discovery and can be
the subsequent sought only by proper
introduction of motion in the trial court
secondary evidence by and is permitted only
the proponent. upon good cause shown.
Presupposes that the Contemplates a situation
document to be wherein the document is
produced is intended as either assumed to be
evidence for the favorable to the party in
proponent who is possession thereof or
presumed to have that the party seeking its RULES ON ELECTRONIC EVIDENCE (REE)
knowledge of its production is not A.M. No. 01-7-01-SC
contents. sufficiently informed of
the contents of the SCOPE; COVERAGE; MEANING OF ELECTRONIC EVIDENCE;
same. ELECTRONIC DATA MESSAGE

Q: What are the requisites for the admission of secondary Q: In what cases do the Rules on Electronic Evidence
evidence when the original consists of numerous applies?
accounts?
A: It shall apply to all civil actions and proceedings, as well
A: as quasi-judicial and administrative cases (Sec. 2, Rule 1).

UNIVERSITY OF SANTO TOMAS 380

2013 GOLDEN NOTES
 EVIDENCE

Note: The Supreme Court issued a resolution on Sept. 24,
2002, which took effect on October 14, 2002, to include
criminal proceedings in the coverage of A.M. No. 01-7-01-SC.
Note: In the case of Ang v. Court of Appeals, G.R. No. 182835,
April 20, 2010, it held that the rules on electronic evidence is
not applicable to criminal actions. However, the RTC decided
the case in 2001. Thus, following the maxim that laws and
rules should be interpreted in favor of the accused, the SC did
not apply the amendment which took effect on October
2002.
Q: State the rule on the admissibility of electronic
evidence.
which a right is established or an obligation extinguished, or
by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed,
retrieved or produced electronically. It includes digitally
signed documents and any print-out or output, readable by
sight or other means, which accurately reflects the
electronic data message or electronic document (Sec. 1(h),
Rule 2, REE).
Note: Electronic documents are the functional equivalents of
paper-based documents (Sec. 1, Rule 3, REE).
Q: What is Electronic Data Message?

A: Whenever a rule of evidence refers to the term writing,
document, record, instrument, memorandum or any other
form of writing, such term shall be deemed to include an
electronic document as defined in these Rules (Sec. 1 of
Rule 3, REE). An electronic document is admissible in
evidence if it complies with the rules on admissibility
prescribed by the Rules of Court and related laws and is
authenticated in the manner prescribed by these Rules.
(Sec. 2 of Rule 3,Id.).
Note: The authenticity of any private electronic document must be
proved by evidence that it had been digitally signed and other
appropriate security measures have been applied. (Sec.2 of Rule 5,
Id.)
Q: What is Electronic Evidence?
A: It is information stored in electronic form that is
relevant to the issues in a particular litigation (Overly).
According to Black's Law Dictionary, evidence is "any
species of proof, or probative matter, legally presented at
the trial of an issue, by the act of the parties and through
the medium of witnesses, records, documents, exhibits,
concrete objects, etc. for the purpose of inducing belief in
the minds of the court or jury as to their contention."
Electronic information (like paper) generally is admissible
into evidence in a legal proceeding.
Q: May a facsimile transmission be considered as
electronic evidence?
A: No. In enacting R.A. 8792 (E-Commerce Act of 2000),
Congress intended virtual or paperless writings to be the
functional equivalent and to have the same legal function
as paper-based documents. The terms electronic data
message and electronic document, as defined under R.A.
8792, do not include a facsimile transmission. Accordingly,
a facsimile transmission cannot be considered as electronic
evidence. It is not the functional equivalent of an original
under the best evidence rule and is not admissible as
electronic evidence (MCC Industrial Sales Corporation v.
Sangyong Corp., G.R. No. 170633, Oct. 17, 2007).
Q: What is Electronic Document?
A: Refers to information or the representation of
information, data, figures, symbols or other modes of
written expression, described or however represented, by
A: Electronic data message refers to information generated,
sent, received or stored by electronic, optical or similar
means (Sec.1 (g), Rule 2, REE).
Q: When is electronic evidence regarded as being the
equivalent of an original document under the best
evidence rule?
A: If it is a printout or output readable by sight or other
means, shown to reflect the data accurately (Sec. 1, Rule 4).
As to copies equivalent of the originals, electronic evidence
is an original document when it is:
1. In 2 or more copies executed at or about the same
time with identical contents;
2. A counterpart produced by the same impression as the
original;
3. From the same matrix;
4. By mechanical or electronic re-recording;
5. By chemical reproduction; or
6. By other equivalent techniques which accurately
reproduces the original (Sec. 2, Rule 4; 2003 Bar
Question)
Note: In all matters not specifically covered by the rules on
evidence, the Rules of Court and pertinent provisions of statutes
containing rules on evidence shall apply. Thus the confidential
character of a privileged communication is not lost solely on the
ground that it is in the form of an electronic document. (Sec. 3,
Rule 3, REE)
Q: During the hearing of a case, Jeff, a party litigant
therein, offered as evidence photocopies of documents
with information most of which were originally manually
written and signed. The court ordered Jeff to present the
original of the documents but he refused to do so. Jeff
argued that the photocopies of documents he presented
are considered as electronic documents and, hence,
equivalent to original ones. Is Jeff correct?
A: No. Photocopies of documents do not constitute the
electronic evidence defined in Section 1 of Rule 2 of the
Rules on Electronic Evidence. Here, the information in the
photocopies of documents offered by Jeff was not received,
recorded, retrieved or produced electronically. Moreover,
such electronic evidence must be authenticated, which Jeff
failed to do. Finally, the required affidavit to prove the
admissibility and evidentiary weight of the alleged
electronic evidence was not executed, much less presented
in evidence (NPC v. Codilla, G.R. No. 170491, Apr. 4, 2007).

381 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
PROBATIVE VALUE OF ELECTRONIC DOCUMENTS OR
EVIDENTIARY WEIGHT; METHOD OF PROOF
Q: What are the factors to be considered in assessing
evidentiary weight of an electronic document?
A:
1. The reliability of the manner or method in which it was
generated, stored or communicated, including but not
limited to input and output procedures, controls, tests
and checks for accuracy and reliability of the electronic
data message or document, in the light of all the
circumstances as well as any relevant agreement;
2. The reliability of the manner in which its originator
was identified;
3. The integrity of the information and communication
system in which it its recorded or stored, including but
not limited to the hardware and computer programs
or software used as well as programming errors;
4. The familiarity of the witness or the person who made
the entry with the communication and information
system;
5. The nature and quality of the information which went
into the communication and information system upon
which the electronic data message document was
based; or
6. Other factors which the court may consider as
affecting accuracy or integrity of the electronic
document or electronic data message (Sec. 1, Rule 7).
Note: Matters relating to the admissibility and evidentiary weight
of an electronic document may be established by an affidavit
stating facts of direct personal knowledge of the affiant or based
on authentic records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained
therein (Sec. 1, Rule 9).
AUTHENTICATION OF ELECTRONIC DOCUMENTS AND
ELECTRONIC SIGNATURES
Q: Who has the burden of proving the authenticity of
electronic evidence?
A: The person seeking to introduce an electronic document
in any legal proceeding has the burden of proving its
authenticity in the manner provided in this Rule (Sec. 1,
Rule 5, REE).
Q: How is an electronic DOCUMENT authenticated?
A:
1. By evidence that it had been digitally signed by the
person purported to have signed the same;
2. By evidence that other appropriate security
procedures or devices as may be authorized by the
Supreme Court or by law for authentication of
electronic documents were applied to the document;
or
3. By other evidence showing its integrity and reliability
to the satisfaction of the judge (Sec. 2, Rule 5).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: Sec. 2 Rule 5 applies only when the document is a private
electronic document and when it is offered as authentic. It is not
applicable when the electronic document is offered simply for
what it is or for what it is claimed to be without regard to whether
or not it is authentic (Riano, Evidence: A Restatement for the Bar, p.
180, 2009 ed).
Q: How is an electronic or digital SIGNATURE
authenticated?
A:
1. By evidence that a method or process was utilized to
establish a digital signature and verify the same;
2. By any other means provided by law; or
3. By any other means satisfactory to the judge as
establishing the genuineness of the electronic
signature (Sec. 2, Rule 6).
Q: What is the effect of authentication of an electronic
signature?
A: Upon authentication, it shall be presumed that:
1. The electronic signature is that of the person to whom
it correlates;
2. The electronic signature was affixed by that person
with the intention of authenticating or approving the
electronic document to which it is related or to
indicate such persons consent to the transaction
embodied therein; and
3. The methods or processes utilized to affix or verify the
electronic signature operated without error or fault
(Sec. 3, Rule 6).
Q: What is the effect of authentication of digital
signatures?
A: Upon authentication, it shall be presumed that:
1. The information contained in a certificate is correct;
2. The digital signature was created during the
operational period of a certificate;
3. No cause exists to render a certificate invalid or
revocable;
4. The message associated with a digital signature has
not been altered from the time it was signed; and
5. A certificate had been issued by the certification
authority indicated therein (Sec. 4, Rule 6).
ELECTRONIC DOCUMENTS vis a vis THE HEARSAY RULE
Q: When is the hearsay rule not applicable to electronic
documents?
A: A memorandum, report, record or data compilation of
acts, events, conditions, opinions, or diagnoses, made by
electronic, optical or other similar means at or near the
time of or from transmission or supply of information by a
person with knowledge thereof, and kept in the regular
course or conduct of a business activity, and such was the
regular practice to make the memorandum, report, record,
382
 EVIDENCE
or data compilation by electronic, optical or similar means,
all of which are shown by the testimony of the custodian or
other qualified witnesses, is excepted from the rule on
hearsay evidence (Sec. 1, Rule 8).
Note: The presumption provided by the rules may be overcome by
evidence of the untrustworthiness of the source of information or
the method or circumstances of the preparation, transmission or
storage thereof (Sec. 2, Rule 8).
AUDIO, PHOTOGRAPHIC, VIDEO AND EPHEMERAL
EVIDENCE
Q: What is ephemeral electronic communication?
A: It refers to telephone conversations, text messages, chat
room sessions, streaming audio, streaming video, and other
electronic forms of communication the evidence of which is
not recorded or retained [Sec. 1(k)].
Q: May parties present audio, photographic or video
evidence?
A: Yes. Audio, photographic and video evidence of events,
acts or transactions shall be admissible provided it shall be
shown, presented or displayed to the court and shall be
identified, explained or authenticated by the person who
made the recording or by some other person competent to
testify on the accuracy thereof (Sec. 1, Rule 11).
Q: How shall ephemeral electronic communication be
proven?
A: It shall be proven by the testimony of a person who was
a party to the same or has personal knowledge thereof. In
the absence or unavailability of such witnesses, other
competent evidence be admitted. A recording of the
telephone conversation or ephemeral electronic
communication shall be covered by the immediately
preceding section. If the foregoing communications are
recorded or embodied in an electronic document, then the
provisions of Rule 5 regarding Authentication of Electronic
Documents shall apply (Sec. 2, Rule 11).
Q: Are text messages admissible as evidence?
A: Yes. Text messages have been classified as ephemeral
electronic communication under Section 1(k), Rule 2 of the
Rules on Electronic Evidence, and shall be proven by the
testimony of a person who was a party to the same or has
personal knowledge thereof (Vidallon-Magtolis v. Cielito
Salud, A.M. No. CA-05-20-P, Sept. 9, 2005).
PAROL EVIDENCE RULE
Q: What is parol evidence?
A: It is any evidence aliunde (extrinsic evidence) which is
intended or tends to vary or contradict a complete and
enforceable agreement embodied in a document
(Regalado, Vol. II, p. 730, 2008 ed.). It may refer to
testimonial, real or documentary evidence.
383
Note: Among the evidentiary rules, it is the parol evidence rule
that has direct application to the law on contracts. The rule applies
only to contracts which the parties have decided to set forth in
writing. Hence, parol evidence does not apply to oral contracts
(Riano, Evidence: A Restatement for the Bar, p. 209, 2009 ed).
Q: What does the Parol Evidence Rule state?
A: It states that 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 (Sec. 9,
Rule 130).
Note: The parol evidence rule does not apply, and may not
properly be invoked by either party to the litigation against the
other, where at least one party to the suit is not a party or privy of
a party to the written instrument in question and does not base a
claim or assert a right originating in the instrument of the relation
established thereby. Thus, if one of the parties to the case is a
complete stranger to the contract involved therein, he is not bound
by this rule and can introduce extrinsic evidence against the
efficacy of the writing. (Lechugas v. CA, et.al, G.R. Nos. L-39972 & L-
40300, Aug. 6, 1986)
Q: Can the parol evidence rule be waived?
A: Yes, failure to invoke the benefits of the rule constitutes
as waiver of the rule. Inadmissible evidence may be
rendered admissible by failure to object (Riano, Evidence: A
Restatement for the Bar, p. 229, 2009 ed).
Note: However, even if the parol evidence is admitted, it does not
mean that the court would give probative value to the parol
evidence. Admissibility is not the equivalent of probative value or
credibility (Riano, Evidence: A Restatement for the Bar, p. 230,
2009 ed).
Q: What is the underlying reason for the adoption of the
parol evidence rule? (1998 Bar Question)
A: It is designed to give certainty to a transaction which has
been reduced to writing, because written evidence is much
more certain and accurate than that which rests on fleeting
memory only (Francisco, Rules of Court Vol. VII, Part I. p.
154). Moreover, it gives stability to written statements,
removes the temptation and possibility of perjury and
prevents possible fraud.
Q: May a condition precedent and a condition subsequent
be established by parol evidence?
A: Condition precedent may be established by parol
evidence because there is no varying of the terms of the
written contract by extrinsic agreement for the reason that
there is no contract in existence. There is nothing in which
to apply the excluding rule. Conditions subsequent may not
be established by parol evidence since a written contract
already exists.
APPLICATION OF THE PAROL EVIDENCE RULE
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

Q: What are the requisites for the application of the parol
evidence rule?
A:
1. There must be a valid contract;
2. The terms of the agreement must be reduced to
writing;
Note: Agreement includes wills.
3. The dispute is between the parties or their successors-
in-interest; and
4. There is dispute as to the terms of the agreement.
Note: Parol evidence is evidence outside of the agreement of the
parties while the parol evidence rule prevents the presentation of
such parol evidence.
WHEN PAROL EVIDENCE CAN BE INTRODUCED
Q: What are the exceptions to the parol evidence rule?
A: A party may present evidence to modify, explain or add
to the terms of the written agreement if he puts in issue in
his pleadings the following:
1. An intrinsic ambiguity, mistake or imperfection in the
written agreement;
Note: The mistake contemplated is one which is a mistake of
fact mutual to both parties (Bernardo, Evidence Annotated
2008, pg. 38 citing Gurango vs. IAC, 215 SCRA 332). Parol
evidence may only be allowed, if any of the foregoing matters
is put in issue in the pleadings.
2. Failure of the written agreement to express the true
intent of the parties thereto;
3. Validity of the written agreement; or
4. Existence of other terms agreed to by the parties or
their successors in interest after the execution of the
written agreement (Sec. 9, Rule 130).
Q: Distinguish the kinds of ambiguities.
extrinsic
ambiguity
which serves as
an exception to
the parol
evidence rule
(Regalado, Remedial Law Compendium, Vol II, p. 733, 2008
ed)
Q: Paula filed a complaint against Lynette for the recovery
of a sum of money based on a promissory note executed
by the latter. Paula alleged in her complaint that although
the promissory note says that it is payable within 120
days, the truth is that the note is payable immediately
after 90 days but that if Paula is willing, she may, upon
request of Lynette give the latter up to 120 days to pay
the note. During the hearing, Paula testified that the truth
is that the agreement between her and Lynette is for the
latter to pay immediately after 90 days time. Also, since
the original note was with Lynette and the latter would
not surrender to Paula the original note which Lynette
kept in a place about one day's trip from where she
received the notice to produce the note and in spite of
such notice to produce the same within 6 hours from
receipt of such notice, Lynette failed to do so. Paula
presented a copy of the note which was executed at the
same time as the original and with identical contents.
Over the objection of Lynette, will Paula be allowed to
testify as to the true agreement or contents of the
promissory note? Why? (2001 Bar Question)
A: Yes. As an exception to the parol evidence rule, a party
may present evidence to modify, explain or add to the
terms of the written agreement if he puts in issue in his
pleading the failure of the written agreement to express
the true intent and agreement of the parties thereto. Here,
Paula has alleged in her complaint that the promissory note
does not express the true intent and agreement of the
parties.
DISTINCTIONS BETWEEN THE PAROL EVIDENCE RULE AND
THE BEST EVIDENCE RULE

A: Parol Evidence Rule Best Evidence Rule

Intrinsic or Extrinsic or Intermediate Presupposes that the The original document is
Latent Patent original document is not available or there is a
On its face, the Ambiguity is Ambiguity available in court dispute as to whether
writing appears apparent on consists in the said writing is original
clear and the face of the use of Prohibits the varying of Prohibits the
unambiguous writing and equivocal the terms of a written introduction of
but there are requires that words agreement secondary evidence in
collateral something be susceptible of lieu of the original
matters which added to make two or more document regardless of
make the the meaning interpretation whether or not it varies
meaning certain the contents of the
uncertain original
Curable by Cannot be Curable by Applies only to Applies to all kinds of
evidence cured by evidence documents which are writings
aliunde evidence aliunde contractual in nature
aliunde including wills
because it is Can be invoked only Can be invoked by any
only intrinsic when the controversy is party to an action
ambiguity not between the parties to whether or not he has

UNIVERSITY OF SANTO TOMAS 384

2013 GOLDEN NOTES
 EVIDENCE

the written agreement, participated in the except last wills and

their privies, or any party writing involved testaments; and
affected thereby like a 3. Public records, kept in the
cestui que trust Philippines, of private
(Regalado, Remedial Law Compendium, Vol II, p. 731, 2008 documents required by law
ed) to be entered therein (Sec.
19, Rule 132).
AUTHENTICATION AND PROOF OF DOCUMENTS
As to authenticity and admissibility as evidence
MEANING OF AUTHENTICATION Admissible as evidence without Before any private
need of further proof of its document offered as
Q: What is authentication? genuineness and due execution authentic is received in
evidence, its due
A: It is proving the due execution and genuineness of the execution and
document. authenticity must first
be proved
Note: A document is a deed, instrument or other duly authorized As to persons bound
paper by which something is proved, evidenced or set forth Evidence even against third Binds only the parties
(Bermejo v. Barrios, G.R. No. L-23614, Feb. 27, 1970). persons, of the fact which gave who executed them or
rise to its due execution and to their privies, insofar as
Q: When is authentication of documents not required? the date of the latter due execution and date
of the document are
A: concerned
1. The writing is an ancient document (Sec. 21, Rule 132); As to validity of certain transactions
2. The writing is a public document or record (Sec. 19, Certain transactions must be
Rule 132); contained in a public document;
otherwise they will not be given
Note: A private document required by law to be recorded, any validity.
while it is transformed into a public document by the public
record thereof, is not included in this enumeration. Such
Note: Church registries of births, marriages and deaths are no
recording does not make the private writing itself a public
longer public writings nor are they kept by duly authorized public
document so as to make it admissible without authentication.
officials. They are private writings and their authenticity must
i.e. birth certificate recorded in the NSO is a public record,
therefore be proved, as are all other private writings in accordance
but it is still a private document
with the rules (Llemos v. Llemos G.R. No. 150162, January 26,
2007).
3. The writing is a notarial document acknowledged,
proved or certified (Sec. 30, Rule 132); WHEN A PRIVATE WRITING REQUIRES AUTHENTICATION;
4. The authenticity and due execution of the document PROOF OF A PRIVATE WRITING
has been expressly admitted or impliedly admitted by
failure to deny the same under oath; or Q: How is the due execution and authenticity of private
5. When such genuineness and due execution are documents proved?
immaterial to the issue.
A: It must be proved
(a) By anyone who saw the document executed or written;
or
(b) By evidence of the genuineness of the signature or
handwriting of the maker.

Any other private document need only be identified as that

which it is claimed to be, i.e. ancient documents.

PUBLIC AND PRIVATE DOCUMENTS Note: In addition to the modes of authenticating a private
document under Sec. 20, Rule 132, American Jurisprudence also
Public Document Private Document recognizes the doctrine of self-authentication - where the facts in
What comprises it writing could only have been known by the writer; and the rule of
1. The written official acts, or All other writings are authentication by the adverse party - where the reply of the
adverse party refers to and affirms the sending to him and his
records of the official acts private (Sec. 19, Rule
receipt of the letter in question, a copy of which the proponent is
of the sovereign authority, 132). offering as evidence (Regalado, Remedial Law Compendium 2010
official bodies and tribunals, ed.).
and public officers, whether
of the Philippines, or of a Q: Is the testimony of a handwriting expert indispensable
foreign country; to the examination or the comparison of handwritings in
2. Documents acknowledged cases of forgery?
before a notary public

385 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: No. A finding of forgery does not depend entirely on the
testimonies of handwriting experts, because the judge must
conduct an examination of the questioned signature in
order to arrive at a reasonable conclusion as to its
authenticity. The opinions of handwriting experts are not
binding upon courts, especially when the question involved
is mere handwriting similarity or dissimilarity, which can be
determined by a visual comparison of specimens of the
questioned signatures with those of the currently existing
ones (Pontaoe v. Pontaoe, G.R. No. 15958, Apr. 22, 2008).
WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE
WRITING IS NOT REQUIRED (ANCIENT DOCUMENTS)
Q: What are the requisites for an ancient document to be
exempt from proof of due execution and authenticity (rule
on ancient document/authentic document rule)?
A:
1. That the private document be more than 30 years old;
2. That it be produced from a custody in which it would
naturally be found if genuine; and
3. That it is unblemished by any alteration or
circumstances of suspicion (Sec. 21, Rule 132).
Note: This rule applies only if there are no other witnesses to
determine authenticity.
HOW TO PROVE GENUINENESS OF A HANDWRITING
Q: How is the genuineness of a persons handwriting
proved?
A:
1. It may be proved by any witness who actually saw the
person writing the instrument;
2. By any person who is familiar or has acquired
knowledge of the handwriting of such person, his
opinion as to the handwriting being an exception to
the opinion rule under Secs. 48 & 50 of Rule 130;
3. By a comparison of the questioned handwriting from
the admitted genuine specimens thereof; or
4. By expert witness (Secs. 20 & 22, Rule 132; Sec. 49,
Rule 130).
PUBLIC DOCUMENTS AS EVIDENCE; PROOF OF OFFICIAL
RECORD
Q: How are public records proved?
A: Written official acts, or records of the official acts of the
sovereign authority, official bodies and tribunals, and public
officers, e.g. a written foreign law, may be evidenced by:
1. If it is within the Philippines
a. An official publication thereof; or
b. By a copy attested by the officer having the legal
custody of the record, or by his deputy.
2. If it is kept in a foreign country
a. An official publication thereof; or
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
b. By a copy attested by the officer having the legal
custody of the record or by his deputy and
accompanied with a certificate that such officer
has the custody. The certificate may be made by a
secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or
by any officer in the foreign service of the
Philippines stationed in the foreign country in
which the record is kept, and authenticated by
the seal of his office (Sec. 24, Rule 132).
Note: Upon failure to comply with the above-
mentioned requirements, courts will apply the doctrine
of processual presumption.
Q: May a public record be removed from its office?
A: GR: No. Any public record must not be removed from
the office in which it is kept.
XPN: Upon order of a court where the inspection
of the record is essential to the just
determination of a pending case (Sec. 26, Rule
132).
Q: What is the probative value of documents consisting of
entries in public records?
A: They are prima facie evidence of the facts stated therein
if entered by a public officer in the performance of a duty.
All other public documents are evidence, even against a
third person, of the fact which gave rise to their execution
and of the date of the latter (Sec. 23, Rule 132).
Q: Is a special power of attorney executed and
acknowledged before a notary public in a foreign country
authorizing a person to file a suit against certain persons
in the Philippines admissible in evidence?
A: No, because a notary public in a foreign country is not
one of those who can issue the certificate mentioned in
Sec. 24, Rule 132 of Rules of Court. Non-compliance with
the said rule will render the SPA inadmissible in evidence.
Not being duly established in evidence, the SPA cannot be
used to file a suit in representation of another. The failure
to have the SPA authenticated is not a mere technicality
but a question of jurisdiction (Heirs of Medina v. Natividad,
G.R. No. 177505, Nov. 27, 2008).
ATTESTATION OF A COPY
Q: What must the attestation of a copy state?
A: Whenever a copy of a document or record is attested for
the purpose of evidence, the attestation must state, in
substance:
1. That the copy is a correct copy of the original, or a
specific part thereof, as the case may be;
2. It must be under the official seal of the attesting
officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court (Sec. 25,
Rule 132).
386
 EVIDENCE
PUBLIC RECORD OF A PUBLIC DOCUMENT
Q: How may a public record of a private document be
proved?
A: Any of the following:
1. By the original record; or
2. By a copy thereof, attested by the legal custodian of
the record, with an appropriate certificate that such
officer has the custody (Sec. 27, Rule 132).
PROOF OF LACK OF RECORD
Q: How may the absence of a record be proven?
A: Proof of lack of record of a document consists of written
statement signed by an officer having custody of an official
record or by his deputy. The written statement must
contain the following matters:
1. There has been a diligent search of the record;
2. That despite the diligent search, no record of entry of a
specified tenor is found to exist in the records of his
office.
Note: The written statement must be accompanied by a certificate
that such officer has the custody of official records (Sec. 28, Rule
132).
HOW A JUDICIAL RECORD IS IMPEACHED
Q: How may a judicial record be impeached?
A: It may be impeached by evidence of:
1. Want of jurisdiction in the court or judicial officer;
2. Collusion between the parties; or
3. Fraud in the party offering the record, in respect to the
proceedings (Sec. 29, Rule 132).
Q: Lino was charged with illegal possession of firearm.
During trial, the prosecution presented in evidence a
certification of the PNP Firearms and Explosives Office
attesting that the accused had no license to carry any
firearm. The certifying officer, however, was not
presented as a witness. Is the certification of the PNP
Firearm and Explosives Office without the certifying
officer testifying on it admissible in evidence against Lino?
(2003 Bar Question)
A: Yes. Section 28, Rule 130 of the Rules of Court provides
that a written statement signed by an officer having the
custody of an official record or by his deputy that after
diligent search, no record or entry of a specified tenor is
found to exist in the records of his office, accompanied by a
certificate as above provided, is admissible as evidence that
the records of his office contain no such record or entry.
The records of the PNP Firearm and Explosives Office are a
public record. Hence, notwithstanding that the certifying
officer was not presented as a witness for the prosecution,
the certification he made is admissible in evidence against
Lino.
PROOF OF NOTARIAL DOCUMENTS
Q: How are notarial documents proved?
A: The document may be presented in evidence without
further proof, the certificate of acknowledgment being
prima facie evidence of the execution of the instrument or
document involved (Sec. 30, Rule 132).
Note: The identification documents which may be presented as
competent evidence of identity by signatories to documents or
instruments to be notarized include, but are not limited to:
passports, drivers licenses, Professional Regulations Commission
identification cards, NBI clearances, police clearances, postal IDs,
voters IDs, Barangay certifications, GSIS e-cards, SSS cards,
Philhealth cards, senior citizens cards, Overseas Workers Welfare
Administration (OWWA) IDs, OFW IDs, seamans books, alien
certificate of registrations/immigrant certificate of registrations,
government office IDs, certifications from the National Council for
the Welfare of Disabled Persons (NCWDP), and DSWD
certifications.
Q: What is the evidentiary weight given to a notarial
document?
A: Notarial documents celebrated with all the legal
requisites under a notarial certificate is evidence of a high
character, and to overcome its recitals, it is incumbent
upon the party challenging it to prove his claim with clear,
convincing and more than mere preponderant evidence.
A notarized document carries the evidentiary weight
conferred upon it with respect to its due execution, and it
has in its favor the presumption of regularity which may
only be rebutted by evidence so strong and convincing as to
exclude all controversy as to the falsity of the certificate.
Absent such, the presumption must be upheld. The burden
of proof to overcome the presumption of due execution of
a notarial document lies on the one contesting the same
(Pan Pacific Industrial Sales Co. v. CA, G.R. No.125283, Aug.
9, 2005).
HOW TO EXPLAIN ALTERATIONS IN A DOCUMENT
Q: How should documents with alterations be presented
as evidence for it to be admissible?
A: A party producing a document as genuine which has
been altered and appears to have been altered after its
execution must account for the alteration. He may show
that the alteration:
1. was made by another, without his concurrence;
2. was made with the consent of the parties affected by
it;
3. was otherwise properly or innocently made; or
4. that the alteration did not change the meaning or
language of the instrument.
Note: Failure to do at least one of the above will make the
document inadmissible in evidence (Sec. 31, Rule 132).
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE
Documents written in an unofficial language shall not be
admitted as evidence unless accompanied with a
translation into English or Filipino (Sec. 33, Rule 132).
387 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

1. To Observe the testimonial quality of perception;

TESTIMONIAL EVIDENCE 2. To Remember the testimonial quality of memory;
3. To Relate the testimonial quality of narration; and
It is sometimes called viva voce evidence which literally 4. To Recognize a duty to tell the truth the testimonial
means living voice or by word of mouth. In this kind of quality of sincerity.
evidence, a human being (witness) is called to the stand, is
asked questions, and answers the question asked of him Q: What factors cannot be considered as grounds for
(Riano. Evidence, p. 244, 2009 ed.). disqualification of a witness?

QUALIFICATION OF A WITNESS A: GR:

1. Religious or political belief;
Q: What is the presumption regarding the qualification of 2. Interest in the outcome of the case; or
nd
a witness? 3. Conviction of a crime (Sec. 20, Rule 130,2 par).

A: Generally, a person who takes the witness stand, is XPNs: Unless otherwise provided by law, like the
presumed to be qualified to testify. A party who desires to following:
question the competence of a witness must do so by 1. Those convicted of falsification of document,
making an objection as soon as the facts tending to show perjury or false testimony are prohibited from
incompetency are apparent (Jones on Evidence, Vol. 3, Sec. being witnesses to a will (Art. 821, NCC).
796). 2. Those convicted of an offense involving moral
turpitude cannot be discharged to become a State
Q: Who are qualified to be witnesses? witness (Sec. 17, Rule 119; Sec. 10, R.A. 6981).
3. Those who fall under the disqualification provided
A: All persons who: under Secs. 21-24, Rule 130.
1. Can perceive and in perceiving;
2. Can make known their perception to others (Sec. 20, COMPETENCY VERSUS CREDIBILITY OF A WITNESS
Rule 130);
Q: Distinguish competency from credibility of the witness
Note: The ability to make known the perception of the (2004 Bar Question)
witness to the court involves two factors: (a) the ability to
remember what has been perceived; and (b) the ability to A:
communicate the remembered perception. It is of common
Competency of Witness Credibility of Witness
reason to realize that a witness is presented to testify on a
matter he has perceived. If he cannot remember, he cannot Refers to a witness who Refers to a witness
be a competent witness. (Riano, Evidence: A Restatement for can perceive, and in whose testimony is
the Bar, p. 248-249, 2009 ed) perceiving, can make believable.
known his perception to
3. Must take either an oath or an affirmation (Sec. 1, Rule others.
132; Riano, Evidence: A Restatement for the Bar, p. Is a matter of law or a Refers to the weight
245, 2009 ed.); and matter of rule and trustworthiness or
4. Must not possess the disqualifications imposed by law reliability of the
or the rules (Riano, Evidence: A Restatement for the It also includes the testimony.
Bar, p. 246, 2009 ed.). absence of any of the
disqualifications imposed
Q: Distinguish oath from affirmation? upon a witness.

A: An oath signifies that he is swearing to the Creator to tell
the truth and nothing but the truth and that if he does not,
he will later on answer for all the lies he is guilty of while an
affirmation is a formal declaration of truth in the absence
of swearing to a Creator. It is a declaration about something
to be true.
Note: The judge must determine first whether the witness
understands the nature of the oath, realizes the moral duty to tell
the truth and understands the prospect of being punished for a
falsehood. A person is not qualified to be a witness if he is
incapable of understanding the duty to tell the truth. (Riano,
Evidence: The Bar Lectures Series, pp. 246, 2009 ed)
Q: What are the qualifications of a witness?
A: A prospective witness must show that he has the
following abilities:
Note: Inconsistency in the affidavit and those made in the witness
stand will not discredit him, because it is a matter of judicial
experience that an affidavit being taken ex parte, is almost always
incomplete and often inaccurate.
XPN: The credibility of a witness will be impaired if (1)
the omission in the affidavit refers to a very important
detail of the incident that one relating the incident as
an eyewitness would not be expected to fail to
mention and (2) when the narration in the sworn
statement substantially contradicts the testimony in
court. The point of inquiry is whether the omission is
important or substantial (People vs. Calegan, 233 SCRA
537)
In relation to the credibility of a witness, a testimony must
not only come from a credible witness, but must be
credible in itself, tested by human experience, observation,

UNIVERSITY OF SANTO TOMAS 388

2013 GOLDEN NOTES
 EVIDENCE

common knowledge and accepted conduct that has evolved c. Doctor-patient privilege;
through the years (People vs. Mirandilla Jr., July 27, 2011) d. Minister-penitent privilege; or
e. Public officer as regards communications made in
Q: What is the rule on competency of witness? official confidence.

A: GR: A person who takes the witness stand is presumed Note: The qualifications and disqualifications of witnesses are
to possess the qualifications of a witness (Presumption of determined as of the time they are produced for examination in
competency). court or at the taking of the depositions. Blood relationship does
not disqualify a witness (Bernardo, Evidence Annotated 2008, pg.
49 citing Angelo vs. CA 210 SCRA 402).
XPN: There is prima facie evidence of incompetency in
the following:
Absolute Disqualification Relative Disqualification
1. The fact that a person has been recently found of
The proposed witness is The proposed witness is
unsound mind by a court of competent
prohibited to take the prohibited to testify only
jurisdiction; or
witness stand on certain matters
2. That one is an inmate of an asylum for the insane.
specified under the Rules
(Torres v. Lopez 48 Phil. 722)
1. Disqualification by 1. Disqualification by
Q: Does mental unsoundness of the witness, at the time reason of mental reason of death or
the facts to be testified to occurred, affect his incapacity or insanity of the adverse
competency? immaturity (Sec. 21, party (dead mans
Rule 130). statute) (Sec. 23, Rule
A: No, it only affects his credibility. Nevertheless, as long as 2. Disqualification by 130).
the witness can convey ideas by words or signs and give reason of marriage 2. Disqualification by
sufficiently intelligent answers to questions propounded, (Sec. 22, Rule 130). reason of privileged
she is a competent witness even if she is feeble-minded or communication (Sec.
is mental retardate or is a schizophrenic (People v. De Jesus, 24, Rule 130).
G.R. No. L-39087, Apr. 27, 1984; People v. Gerones, G.R. No.
91116, Jan. 24, 1991; People v. Baid, G.R. No. 129667, July DISQUALIFICATION BY REASON OF MENTAL INCAPACITY
31, 2000). OR IMMATURITY (Sec. 21, Rule 130)

Note: Testimony of children whose mental maturity is such as to
render them incapable of perceiving the facts respecting which
they are examined and of relating them truthfully does not only
affect his/her credibility but his/her competence.
Questions concerning the credibility of a witness are best
addressed to the sound discretion of the trial court as it is in the
best position to observe his demeanor and bodily movements
(Llanto v. Alzona, 450 SCRA 288). The findings of the trial courts
carry great weight and respect and, generally, the appellate courts
will not overturn the said findings.
XPNs:
1. The lower court has reached conclusions that are
clearly unsupported by evidence,
2. It has overlooked some facts or circumstances of
weight and influence which, if considered, would
affect the result of the case (People vs. Dalag,
G.R. No. 129895. April 30, 2003).
Q: Who are disqualified by reason of mental incapacity or
immaturity?
A:
1. Mental incapacity those whose mental condition, at
the time of their production for examination, is such
that they are incapable of intelligently making known
their perception to others
2. Mental immaturity children whose mental maturity
is such as to render them incapable of perceiving the
facts respecting which they are examined and of
relating them truthfully (Sec. 21, Rule 130).
Q: What are the tests considered in determining insanity
of a person?

DISQUALIFICATION OF A WITNESS A:
1. The test of cognition, which is a complete deprivation
Q: Who are disqualified to be witnesses under the rules? of intelligence; and

A: Those who are: 2. The test of volition, which is the total deprivation of
1. Disqualified by reason of mental incapacity or the freedom of the will.
immaturity (Sec. 21, Rule 130); Note: The test of cognition is the applicable test in the Philippines
2. Disqualified by reason of marriage(sec. 22, Rule 130); (People vs. Pascual, 220 SCRA 440).
3. Disqualified by reason of death or insanity of adverse
party (Sec. 23, Rule 130); and Q: When must the incompetence of the witness by reason
4. Disqualified on the ground of privileged of mental incapacity or immaturity exist?
communication (Sec. 24, Rule 130):
a. Marital privilege; A:
b. Attorney-client privilege; Mental Incapacity Mental Immaturity

389 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

The incompetence of the her sister in Pasig City. For unknown reasons, the house of
witness must exist not at Ivys sister was burned, killing the latter. Ivy survived. Ivy
The incompetence of
the time of his perception saw her husband in the vicinity during the incident. Later,
the witness must
of the facts but at the Bob was charged with arson in an Information filed with
occur at the time the
time he is produced for the RTC, Pasig City. During the trial, the prosecutor called
witness perceives the
examination, and consists Ivy to the witness stand and offered her testimony to
event including his
in his inability to prove that her husband committed arson. Can Ivy testify
incapability to relate
intelligently make known over the objection of her husband on the ground of
his perceptions
what he has perceived. marital privilege? (2006 Bar Question)
truthfully.
(Riano, Evidence: A
(Ibid.)
Restatement for the Bar, A: Yes. The marital disqualification rule is aimed at
p. 255, 2009 ed.) protecting the harmony and confidences of marital
relations. Hence, where the marital and domestic relations
Q: Cyrus, a deaf-mute, was presented as a witness in a are so strained that there is no more harmony to be
criminal case. The accused objected to the presentation of preserved nor peace and tranquility which may be
the testimony of Cyrus on the ground that, being a deaf- disturbed, the marital disqualification no longer applies.
mute, he was not a competent witness. Is the contention
of the accused correct? The act of Bob in setting fire to the house of his sister-in-
law, knowing fully well that his wife was there, is an act
A: No. A deaf-mute is not incompetent as a witness. Deaf- totally alien to the harmony and confidences of marital
mutes are competent witnesses where they can: relation which the disqualification primarily seeks to
1. understand and appreciate the sanctity of an oath; protect. The criminal act complained of had the effect of
2. comprehend facts they are going to testify on; and directly and vitally impairing the conjugal relation. It
3. communicate their ideas through a qualified interpreter underscored the fact that the marital and domestic
(People v. Tuangco, G.R. No. 130331, Nov. 22, 2001). relations between her and the accused-husband have
become so strained that that there is no more harmony,
DISQUALIFICATION BY REASON OF MARRIAGE (MARITAL peace or tranquility to be preserved (Alvarez v. Ramirez,
DISQUALIFICATION RULE; SEC. 22) G.R. No. 143439, Oct. 14, 2005)

Q: What are the requisites in order for the spousal
immunity to apply?
A:
1. That the spouse for or against whom the testimony is
offered is a party to the case;
2. That the spouses are validly married;
3. The testimony is one that is given or offered during the
existence of the marriage (Riano, Evidence: A
Restatement for the Bar, p. 266, 2009 ed); and
4. The case is not one of the exceptions provided in the
rule (Herrera, Vol. V, p. 302, 1999 ed.).
Q: What is the purpose of this disqualification?
A: The rule forbidding one spouse to testify for or against
the other is based on principles which are deemed
important to preserve the marriage relation as one of full
confidence and affection, and that this is regarded as more
important to the public welfare than the exigencies of the
lawsuits which authorize domestic peace to be disregarded
for the sake of ferreting out facts within the knowledge of
strangers. (Alvarez vs. Ramirez, G.R. No. 143439, Oct. 14,
2005)
Q: Who can claim spousal immunity
disqualification)?
A: The spouse who can object is the spouse-party and not
the spouse-witness.
Q: Ivy was estranged from her husband Bob for more than
a year due to Bobs suspicion that she was having an affair
with Jeff, their neighbor. Ivy was temporarily living with
Q: Can spousal immunity be waived?
A: Yes, it can be waived just like any other objection to the
competency of other witnesses, through failure to
interpose timely objection at the time the other spouse is
called as a witness (People vs. Francisco, 78 Phil. 694).
Q: What kind of testimony is covered by the prohibition?
A: The prohibition extends not only to a testimony adverse
to the spouse but also to a testimony in favor of the
spouse. It also extends to both criminal and civil cases and
not only consists of utterances but also the production of
documents. (State vs. Bramlet, 114 S.C. 389,103 S.E. 755;
Riano, Evidence: A Restatement for the Bar, p. 266, 2009
ed)
Q: May a spouse testify in a trial where the party-spouse is
a co-accused?
A: Yes. The spouse could testify in a murder case against
the other co-accused, which was jointly tried with accused-
spouses case. This testimony cannot, however, be used
against accused-spouse directly or through the guise of
taking judicial notice of the proceedings in the murder case
(marital without violating the marital disqualification rule, if the
testimony is properly objected. What cannot be done
directly cannot be done indirectly. (People v. Quidato, 297
SCRA 1)
Q: What are the exceptions to the spousal immunity?
A:
1. Consent is given by the party-spouse;

UNIVERSITY OF SANTO TOMAS 390

2013 GOLDEN NOTES
 EVIDENCE
2. In a civil case filed by one against the other;
3. In a criminal case for a crime committed by one
against the other or the latters direct descendants or
ascendants (Sec. 22,Rule 130); or
4. Where the testimony was made after the dissolution
of the marriage.
Q: Alex and Bianca are legally married. Alex is charged in
court with the crime of serious physical injuries
committed against Carding, son of Bianca and step-son of
Alex. Bianca witnessed the infliction of the injuries on
Carding by Alex. The public prosecutor called Bianca to the
witness stand and offered her testimony as an eyewitness.
Counsel for Alex objected on the ground of the marital
disqualification rule under the Rules of Court.
1. Is the objection valid?
2. Will your answer be the same if Biancas testimony
is offered in a civil case for recovery of personal
property filed by Carding against Alex? (2000, 2004
Bar Question)
A:
1. No. While neither the husband nor the wife may
testify against each other without the consent of the
affected spouse, one exception is if the testimony of
the spouse is in a criminal case for a crime committed
by one against the other or the latters direct
descendants or ascendants. Here, Carding is the direct
descendant of Bianca, the wife of Alex. Hence, the
testimony of Bianca falls under the exception to the
marital disqualification rule.
2. No. The marital disqualification rule applies this time.
The exception provided by the rules is in a civil case by
one spouse against the other. Here, the case involves a
case by Carding for the recovery of personal property
against Biancas spouse Alex.
DISQUALIFICATION BY REASON OF DEATH OR INSANITY OF
THE ADVERSE PARTY (DEAD MAN STATUTE/SURVIVING
PARTY RULE)
Q: What are the elements for the application of the rule?
A:
1. The defendant in the case is the executor or the
administrator or a representative of the deceased or
the person of unsound mind;
2. The suit is upon the claim by the plaintiff against the
estate of said deceased or person of unsound mind;
3. The witness is the plaintiff, or an assignor of that party,
or a person in whose behalf the case is prosecuted;
and
4. The subject of the testimony is as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind (Sec. 23,
Rule 130).
Note: The persons entitled to invoke the protection of the Dead
Mans Statute are the executor, administrator and any other
representative of a deceased person, when they are the
defendants in a claim against the estate of the deceased. The
protection may likewise be invoked by a person of unsound mind
in a claim filed against them. (Riano, Evidence, pp. 260-261, 2009
ed)
Q: What is covered by the disqualification by reason of
death or insanity of the adverse party?
A: It constitutes a partial disqualification of a witness
wherein he is prohibited from testifying as to any matter of
fact occurring before the death or insanity of a party to the
transaction (Regalado, Remedial Law Compendium, Vol. II,
p. 743, 2008 ed.).
Q: What is the reason underlying the adoption of the dead
man statute?
A: If death has closed the lips of one party, the policy of the
law is to close the lips of the other party (Goni v. CA, G.R.
No. L-77434, Sept. 23, 1986). This is to prevent the
temptation to perjury because death has already sealed the
lips of one party.
Note: As the statutes are designed to protect the interest of a
deceased or insane person, they do not exclude testimonies, which
are favorable to the representative of such person.
Q: When is the privilege to invoke the Dead Mans Statute
deemed waived by the defendant?
A: The privilege is deemed waived when
1. He does not timely object to the admission of such
evidence or testifies on prohibited matters (Asturias
vs. CA, L-17895, Sept. 30, 1963);
2. He cross-examines the plaintiff (Tongco v. Vianzon, 50
Phil 698); or
3. He files a counter claim against the plaintiff (Goni v.
CA, G.R. No. L-77434, Sept. 23, 1986).
Q: What are the cases not covered by the Dead mans
statute?
A:
1. Testimony of mere witnesses who are neither party
plaintiffs, nor their assignors, nor persons in whose
behalf a case is prosecuted, nor to a nominal party,
nor to officers and stockholders of a plaintiff
corporation (Lichauco v. Atlantic Gulf & Pacific Co. of
Manila, G.R. No. L-2016, Aug. 23, 1949);
2. Where a counterclaim has been interposed by the
defendant as the plaintiff would thereby be testifying
in his defense (Sunga-Chan v. Chua, G.R. No. 143340,
Aug. 15, 2001);
3. Where the deceased contracted with the plaintiff
through an agent and said agent is alive and can
testify, but the testimony of the plaintiff should be
limited to acts performed by the agent (Goni et. al. v.
CA et. al., G.R. No. L-27434, Sept. 23, 1986);
391 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

4. Land registration cases instituted by the deceaseds other or in a criminal

representative, where the oppositor is considered as case for a crime
defendant (Nanagas v. Mun. of San Francisco, et.al., committed by one
53 Phil. 719) or in cadastral cases where there are no spouse against the
oppositors (Tongco v. Vianzon, G.R. No. 27498, Sept. other or the latters
20, 1927); direct descendants or
5. When there is waiver as the defendant does not timely ascendants
object to the admission of such evidence or testifies on The rule prohibits The rule prohibits
the prohibited matters (Asturias v. CA et. al., G.R. No. testimony that is testimony that is
L-17895, Sept. 30, 1963) or cross-examines thereon; against the estate of the against or for the party-
6. If the plaintiff is the executor or administrator or other deceased. spouse.
representative of a deceased person, or the person of
unsound mind; (Razon v. IAC, G.R. No. 74306, Mar. 16, DISQUALIFICATION BY REASON OF PRIVILEGED
1992) COMMUNICATION
7. When the testimony refers to fraudulent transactions
committed by the persons mentioned in the rule (Ong Q: Who may assert the privilege?
Chua v. Carr, G.R. No. L-29512, Jan, 17, 1929),
provided such fraud is first established by evidence A: The holder of the privilege, authorized persons and
aliunde (Babao v. Perez, G.R. No. L-8334, Dec. 28, persons to whom privileged communication were made can
1957); assert the privilege.
8. Negative testimony, that is, testimony that a fact did
not occur during the lifetime of the deceased Note: The disqualification by reason of privileged communication
(Mendezona v. Vda. De Goitia, G.R. No. L-31739, Mar. applies to both civil and criminal cases except as to the doctor-
11, 1930); patient privilege, which is applicable only in civil cases. Unless
9. Testimony on the present possession by the witness of waived, the disqualification under Sec. 24 remains even after the
various relationships therein have ceased to exist.
a written document signed by the deceased because
such fact exists even after the death of decedent (4
Marital Privilege
Martin, op. cit., p. 164);
10. When the defendant/s, though heirs of the deceased,
Q: What are the requisites for the application of this
are sued in their personal and individual capacities;
privilege?
and
11. In actions against a partnership.
A:
1. There must be a valid marriage;
Q: True or False. The surviving parties rule bars Maria
2. There is a communication received in confidence by
from testifying for the claimant as to what the deceased
one from the other;
Jose had said to her, in a claim filed by Pedro against the
3. The confidential communication was received during
estate of Jose. Explain. (2001, 2007 Bar Question)
the marriage; and
4. There is no consent to disclose the information (Sec.
A: False. For the survivorship disqualification rule or the
24, par. A. Rule 130).
dead mans statute to apply, one of the requisites is that
the witness being offered is either a party plaintiff, or his
assignor or a person in whose behalf a case is prosecuted.
Here, Maria is a mere witness. Hence, Maria does not fall
Q: What is the reason for the rule on privileged marital
within the prohibition and is not barred from testifying.
disqualification?
Q: Distinguish dead mans statute from marital
disqualification rule
A: The society has a deeply rooted interest in the
preservation for peace of the families and its strongest
A:
safeguard is to preserve with jealous care any violations of
Dead Mans Statute Marital Disqualification
those hallowed confidences inherent in, and inseparable
Rule
from the marital status. The law insures absolute freedom
Only a partial A complete and
of communication between the spouses by making it
disqualification as the absolute disqualification
privileged (Francisco, Evidence, p. 145, 1996 ed.; Zulueta v.
witness is not
CA, 253 SCRA 699, Feb. 20, 1996).
completely disqualified
but is only prohibited
Q: Distinguish spousal immunity from marital privilege.
from testifying on the
matters therein
A:
specified
Disqualification By Disqualification By
Applies only to a civil GR: Applies to a civil or
Reason Of Marriage (Sec. Reason Of Marital
case or special criminal case.
22) Privilege (Sec. 24)
proceeding over the
Can be invoked only if Can be claimed
estate of a deceased or XPN: In a civil case by
one of the spouses is a whether or not the
insane person one spouse against the

UNIVERSITY OF SANTO TOMAS 392

2013 GOLDEN NOTES
 EVIDENCE

party to the action other spouse is a A: No. The law requires that both the marital
party to the action disqualification rule under Sec. 22 and the marital privilege
Applies only if the Can be claimed even rule under Sec. 24 can only be invoked by spouses who are
marriage is existing at the after the marriage is validly married to each other. In this case, the bigamous
time the testimony is dissolved marriage between A and C is void.
offered
Applies to information Applies only to Q: When is the privilege inapplicable?
received prior to confidential
marriage as long as such communications A:
is offered during the received during the 1. In a civil case by one against the other; or
marriage marriage between the 2. In a criminal case for a crime committed by one
spouses against the other or the latters direct ascendants or
The married witness The married person is descendants (Sec. 24, par A. Rule 130).
would not be allowed to on the stand but the 3. Information acquired by a spouse before the marriage
take the stand at all objection of privilege even if received confidentially will not fall squarely
because of the is raised when with the privilege.
disqualification. Even if confidential marital
the testimony is, for or communication is Q: James, an alien, was criminally charged of promoting
against the objecting inquired into and facilitating child prostitution and other sexual abuses
spouse, the spouse- under R.A. 7610. The principal witness against him was his
witness cannot testify Filipina wife, Conching. Earlier, she had complained that
James hotel was being used as a center for sex tourism
Q: In June 1998, A told B that he killed C. After a year, A and child trafficking. The defense counsel for James
married B. Upon the offer of testimony of B for the alleged objected to the testimony of Conching at the trial of the
killing of C, can A validly make an objection? child prostitution case and the introduction of the
affidavits she executed against her husband as a violation
A: Yes. Irrespective of the fact that B was informed of the of spousal confidentiality and marital privilege rule. It
killing before her marriage to A, still, the testimony was turned out that Patring, the minor daughter of Conching
offered during their marriage, which brings it into the ambit by her first husband who was a Filipino, was molested by
of the marital disqualification rule under Sec. 22. James earlier. Thus, Conching had filed for legal separation
against James since last year. May the court admit the
Q: Supposed in the above problem, the testimony was testimony and affidavits of the wife, Conching, against her
offered at the time the marriage between A and B was husband, James, in the criminal case involving child
already terminated, can A still validly object, this time on prostitution? Reason (2004 Bar Question)
the ground of marital privilege rule under Sec. 24?
A: Yes. The court may admit the testimony and affidavits of
A: No. The testimony even if confidential was not the wife against her husband in the criminal case where it
communicated to B during the time of marriage, but before involves child prostitution of the wife's daughter. It is not
the marriage. covered by the marital privilege rule. One exception is
where the crime is committed by one against the other or
Q: Supposed in the above problem, the information the latter's direct descendants or ascendants (Sec. 24, Rule
received by B was communicated to A during their 130). A crime by the husband against the daughter is a
marriage, can A validly object to the testimony of B if it crime against the wife and directly attacks or vitally impairs
was offered after the dissolution of their marriage on the the conjugal relation (Ordono v. Daquigan, G.R. No. L-
ground of marital disqualification rule under Sec. 22? 39012, Jan. 31, 1975).

A: No. He can only object based on the marital
disqualification rule if the testimony was offered during
their marriage and not to testimony offered after the
dissolution of the marriage. The proper objection must be
based on marital privilege rule under Sec. 24 because such
defense is applicable even after the dissolution of marriage
provided that the communication was made confidentially
to B during their marriage.
Q: A was prosecuted and convicted for bigamy for
allegedly contracting a second marriage with C.
Thereafter, C was presented as a witness to testify against
A for the alleged killing of D. A objected on the ground
that the matters to be testified by C were communicated
to her during their marriage. Is he correct?
Q: Are third persons who overheard the communication
between the spouses bound by the privilege?
A: GR: Third persons who, without the knowledge of the
spouses, overhear the communication are not disqualified
to testify.
XPN: When there is collusion and voluntary disclosure
to a third party, that third party becomes an agent and
cannot testify.
Attorney-Client Privilege
Q: What are the requisites for the application of the
privilege?

A:

393 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
1. Attorney-client relation;
2. The privilege is invoked with respect to a confidential
communication or advice between them in the course
of or with a view to professional employment; and
3. The client has not given his consent to the attorneys
testimony; or if the attorneys secretary, stenographer
or clerk is sought to be examined, that both the client
and the attorney have not given their consent
(Regalado, Vol. II, p. 749, 2008 ed.).
Note: This rule does not require a perfected attorney client
relationship. It is enough that the communication or advice be with
a view to professional employment (Sec. 24b, rule 130).
This rule shall apply to similar communications made to or received
by a law student, acting for the legal clinic (Sec. 3, Rule 138-A).
Note: Communication in furtherance of crime or fraud is not
privileged (8 Wigmore, Evidence) or for the purpose of committing
a crime or a tort or those made in furtherance of an illicit activity.
Q: What is the purpose of this privilege?
A: To encourage full disclosure by client to his attorney of
all pertinent matters as to further the administration of
justice and to protect the client from possible breach of
confidence as a result of a consultation with a lawyer
(Hadjula v. Mdianda A.C. No. 6711, July 3, 2007).
Q: What is the test in applying the attorney-client
privilege?
A: The test is whether the communication made is with the
view of obtaining from the lawyer his professional
assistance or advice regardless of the existence or absence
of a pending litigation.
Q: What is meant by confidential communication?
A: It refers to information transmitted by voluntary act of
disclosure between attorney and client in confidence and
by means which, so far as the client is aware, discloses the
information to no third person other than one reasonably
necessary for the transmission of the information or the
accomplishment of the purpose for which it was given
(Mercado v. Vitriolo, A.C. No. 5108, May 26, 2005).
Q: When is the privilege inapplicable?
A: It does not apply to communications which are:
1. Intended to be made public;
2. Intended to be communicated to others;
3. Intended for an unlawful purpose;
4. Received from third persons not acting in behalf or as
agents of the client; or
5. Made in the presence of third parties who are
strangers to the attorney-client relationship (Regalado,
Remedial Law Compendium, Vol. II, p. 750, 2008 ed.).
Q: May a lawyer refuse to divulge the identity of his
clients?
A: GR: Lawyers may not invoke the privilege and refuse to
divulge the name or identity of their client.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
XPNs:
1. Where a strong possibility exists that revealing
the clients name would implicate the client in the
very activity for which he sought the lawyers
advice;
2. Where disclosure would open the client to civil
liability; or
3. Where the prosecutors have no case against the
client unless by revealing the clients name, the
said name would furnish the only link that would
form the chain of testimony necessary to convict
an individual for a crime (Regala vs.
Sandiganbayan, G.R. No. 105938, Sept. 20, 1996).
Q: On August 15, 2008, Edgardo committed estafa against
Petronilo in the amount of 3 million pesos. Petronilo
brought his complaint to the National Bureau of
Investigation, which found that Edgardo had visited his
lawyer twice, the first time on August 14, 2008 and the
second August 16, 2008; and that both visits concerned
the swindling of Edgardo.
During the trial, the RTC issued a subpoena ad
testificandum to Edgardos lawyer for him to testify the
conversations during their first and second meetings. May
the subpoena be quashed on the ground of privileged
communication? Explain fully. (2008 Bar Question)
A: No. The subpoena may not be simply quashed on the
allegation that the testimony to be elicited constitutes
privileged communication. It may be noted that the
accused committed the crime swindling on August 15,
2008, whereas he first visited his lawyer on August 14, 2008
or before he committed the swindling.
Clearly the conversations the accused had with his lawyer
during such first visit, before he committed the swindling
cannot be protected by the privilege between attorney and
client because the crime had not been committed yet and it
is no part of a lawyers professional duty to assist or aid in
the commission of a crime; hence not in the course of
professional employment.
The second visit by accused Edgardo to his lawyer on the
next day (Aug. 16, 2008) after the swindling was committed
may also suffer from the same infirmity as the
conversations had during their first meeting inasmuch as
there could not be a complaint made immediately after the
estafa was committed. The privilege covering a lawyer-
client relation under Sec. 24, par(b), Rule 130, may not be
invoked, as it is not a ground for quashal of a subpoena ad
testificandum under Sec. 4, Rule 21 of the Rules of Court.
Q: A tugboat owned by Speedy Port Service, Inc. (SPS)
sank in Manila Bay while helping to tow another vessel,
drowning 5 of the crew in the resulting shipwreck. At the
maritime board inquiry, the 4 survivors testified. SPS
engaged Atty. Ely to defend against potential claims and
to sue the company owning the other vessel for damages
to the tug. Ely obtained signed statements from the
survivors. He also interviewed other persons, in some
394
 EVIDENCE
instance making memoranda. The heirs of the 5 victims
filed an action for damages against SPS.
The counsel of the heirs of the 5 victims sent written
interrogatories to Ely, asking whether statements of the
witnesses may be obtained if written, copies were to be
furnished; if oral, the exact provisions were to be set forth
in detail. Ely refused to comply, arguing that the
documents and information asked are privileged
communication. Is the contention tenable? Explain. (2008
Bar Question)
A: Yes, the contention of Ely, as counsel for SPS, is tenable
considering that he was acting in his professional capacity
in bringing about the statement he obtained from the
witnesses and the memoranda he made. The notes,
memoranda, and writings made by the counsel in
pursuance of his professional duty, form part of his private
and confidential files in the cases handled by him; hence
privileged (Air Philippines Corp v. Penswell, Inc., G.R. No.
172835, Dec. 13, 2007).
Note: The weight of authority supports the view that when
the client and attorney become embroiled in a controversy
between themselves, as in action filed for payment of
attorneys fee, the privilege is removed fron the attorneys
lips. (Riano, Evidence, pp. 285, 2009 ed)
Q: May this rule be waived?
A: Yes. The privilege is personal and belongs to the client. If
the client waives the privilege such as client reveals the
confidential communication during cross-examination and
if the client does not object to his attorneys testimony on
the communication, no one else including the attorney can
invoke it (In Re Youngs Estate, 33 Utah 382; Riano,
Evidence, p. 285, 2009 ed.).
Physician and Patient Privilege
Q: What are the requisites for the application of the
privilege?
A:
1. The action involves a civil case;
Note: This privilege cannot be claimed in a criminal case
presumably because the interest of the public in criminal
prosecution should be deemed more important than the
secrecy of the communication. (Riano, Evidence: A
Restatement for the Bar, p. 290, 2009 ed)
2. The relation of physician and patient existed between
the person claiming the privilege or his legal
representative and the physician;
3. The advice or treatment given by him or any
information was acquired by the physician while
professionally attending to the patient;
4. The information was necessary for the performance of
his professional duty; and
5. The disclosure of the information would tend to
blacken the reputation of the patient.
Q: What is the purpose of this privilege?
A: The privilege is intended to facilitate and make safe, full
and confidential disclosure by patient to doctor of all facts,
circumstances, and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure
and publication on the witness stand, to the end that the
physician may form a correct opinion, and be enabled
safely and efficaciously to treat his patient.
Q: When is the privilege inapplicable?
A: It does not apply to communications which are:
1. Not given in confidence;
2. Irrelevant to the professional employment;
3. Made for an unlawful purpose;
4. Intended to be made public; or
5. Waived either by contract or law (Regalado, Remedial
Law Compendium, Vol. II, p. 751, 2008 ed.).
Q: What are the pieces of information which cannot be
disclosed?
A:
1. Any advice given to the client;
2. Any treatment given to the client;
3. Any information acquired in attending such patient
provided that the advice, treatment or information
was made or acquired in a professional capacity and
was necessary to enable him to act in that capacity;
and
4. That the information sought to be disclosed would
tend to blacken the reputation of the patient (Sec.
24(c), Rule 130).
Q: Is it necessary that the professional relationship exists
between the doctor and patient when the communication
was made?
A: Yes. It is essential that at the time the communication
was made, the professional relationship is existing, that is,
while the doctor was attending to the patient for curative,
preventive or palliative treatment. It is not however
necessary that the relationship was created through the
voluntary act of the patient. The treatment may have been
given at the behest of another, the patient being in
extremis (Ibid.).
Q: Can such privilege be waived?
A: Yes. The waiver may be made expressly or impliedly. The
waiver may be by a contract as in medical or life insurance.
When there is disclosure by the patient of the information,
there is necessarily, a waiver. When the patient answers
questions under cross-examination on matters which are
395 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

supposedly privileged, the waiver also exists. There could 1. The confession must have been made to the priest in
also be waiver by operation of law (Sec. 4, Rule 28) his professional character according to the discipline of
the church to which the priest or minister belongs
Q: In a proceeding for annulment of marriage on the [Sec. 24(d)]; and
ground of psychological incapacity, the husband 2. Communications made must be confidential and must
presented a confidential psychiatric report prepared by a be penitential in character e.g., under the seal of the
physician after examining his wife, but without the confessional (Regalado, Remedial Law Compendium,
knowledge of the physician. Can the wife invoke the Vol. II, p. 752, 2008 ed.)
physician patient privilege?
Note: This rule is not limited to confessions made by a penitent but
A: No. The person against whom the privilege is claimed is also to any advice given by the minister or priest (Riano, Evidence:
not one duly authorized to practice medicine, surgery, or A Restatement for the Bar, p. 293, 2009 ed). The advice given as a
result of confession must be made in the ministers professional
obstetrics. He is simply the patient's husband who wishes
character. (ibid.)
to testify on a document executed by medical practitioners.
Neither can his testimony be considered a circumvention of
Q: When is the privilege inapplicable?
the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who
A: When the communication is not penitential in character
examined the patient and executed the report. The proper
as when what is divulged is the plan to commit a crime or
objection should be hearsay and not privileged
where the penitent discussed business arrangements with
communication. (Krohn v. Court of Appeals, 233 SCRA 146)
the priest (ibid.).
Q: Aimee sought to offer as evidence the testimony of Dr.
Q: What is the purpose of this privilege?
Naval to prove that Bob is not the illegitimate son of
Yuring as the latter was sterile. Bob objected to the
A: To allow and encourage individuals to fulfill their
admissibility of the said testimony arguing that the same
religious, emotional or other needs by protecting
is covered by the physician-patient privilege because the
confidential disclosures to religious practitioners (Peralta,
testimony would blacken the reputation of Yuring. It was
Jr.,Perspectives of Evidence, p. 220, 2005 ed., citing
alleged that Yuring became sterile because he contracted
Evidence, Oregon State Bar Committee on Continuing Legal
gonorrhea. Aimee argues that Yuring is long dead and, as
Education).
such, the privilege may not be invoked.
1. Is the testimony of Dr. Naval covered by the
Public Officer As Regards Communications Made In
physician-patient privilege?
Official Confidence
2. Does the fact that Yuring is long dead bar the
application of the physician-patient privilege?
Q: What are the requisites for its application?
A:
A:
1. Yes. Yuring's sterility arose when he contracted
1. The communication was given to the public officer in
gonorrhea, a fact which most assuredly blackens his
official confidence;
reputation. In fact, given that society holds virility at a
2. The public interest would suffer by the disclosure of
premium, sterility alone, without the attendant
the communication;
embarrassment of contracting a sexually-transmitted
3. The holder of the privilege is the government, acting
disease, would be sufficient to blacken the reputation
through a public officer;
of any patient (Gonzales v. CA, G.R. No. 117740, Oct.
4. The communication was given during the term of
30, 1998).
office of the public officer but the privilege may be
invoked not only during the term of office of the public
2. No. The privilege of secrecy is not abolished or
officer but also after (Regalado, Vol. II, p. 752, 2008
terminated because of death. The purpose of the law
ed.)
would be thwarted and the policy intended to be
promoted thereby would be defeated, if death
Q: When is the privilege inapplicable?
removed the seal of secrecy, from the communications
and disclosures which a patient should make to his
A: If what is asked:
physician. After one has gone to his grave, the living
1. Is useful evidence to vindicate the innocence of an
are not permitted to impair his name and disgrace his
accused;
memory by dragging to light communications and
2. Lessen the risk of false testimony;
disclosures made under the seal of the statute
3. Is essential to the proper disposition of the litigation;
(Gonzales v. CA, G.R. No. 117740, Oct. 30, 1998).
or
4. The benefit to be gained by a correct disposition of the
Priest-Penitent Privilege
litigation was greater than any injury which could inure
to the relation by a disclosure of the information
Q: What are the requisites for its application?
(Francisco, Evidence, p. 171, 1992 ed.).
A:
Q: Is the privilege applicable to public officers in general?

UNIVERSITY OF SANTO TOMAS 396

2013 GOLDEN NOTES
 EVIDENCE
A: No. The privilege only applies to communications to such
officers who have a responsibility or duty to investigate or
to prevent public wrongs, and not to officials in general
(Francisco, Evidence, p. 139, 1992 ed.).
Note: The court, not the witness, will determine the necessity of
regarding the communication as privileged (Francisco, Evidence, p.
143, 1992 ed)
Q: What is the concept of executive privilege?
A: Certain types of information like military, diplomatic and
other national security matters may be withheld from the
public.
Q: Secretary of Fisheries Nenito Abesamis received an
invitation for questioning in a hearing from the Senate of
the Philippines regarding the Fish Feeds Scam. During the
hearing, Abesamis didnt answer the questions
propounded to him by Senator Renato Pamintuan
claiming that his position entitles him to invoke the
executive privilege. Is his contention correct?
A: No. As held in the case of Senate of the Philippines vs.
Ermita, G.R. No. 169777, April 25, 2006), the Court upheld
the doctrine of executive privilege but it found E.O. 464
partly constitutionally defective, specifically Secs. 2(b) and 3
which required government officials below the heads of
executive departments to secure consent from the
President before appearing in congressional hearings and
investigations. The Court noted that E.O. 464 covers
persons, which is a misuse of the doctrine because the
privilege is to be properly invoked in relation to specific
categories of information and not categories of persons
(Riano, Evidence, 2009 ed., p. 298).
Parental and Filial Privilege
Q: What is the rule on parental privilege?
A: A person may not be compelled to testify against his/her
children or other direct descendants (Sec. 25, Rule 130). It is
therefore a privilege granted and which can be invoked
only by the parent or other direct ascendant.
Q: What is the rule on filial privilege?
A: A person may not be compelled to testify against his/her
parents or other direct ascendants (Sec. 25, Rule 130). It is
therefore a privilege granted and which can be invoked
only by the child or other direct descendant.
Note: Under the Family Code, the general rule is that no
descendant shall be compelled, in a criminal case, to testify against
his parents and grandparents. As an exception, a descendant may
be compelled to give his testimony in the following instances:
a. when such testimony is indispensable in a crime committed
against said descendant or
b. in a crime committed by one parent against the other (Art.
215, Family Code; credibility (Riano, Evidence: A Restatement
for the Bar, p. 307, 2009 ed.)
Q: A was convicted of raping his own daughter. His son, an
8 year old boy testified against him. Can he object to the
testimony on the ground of filial privilege and invoke the
incompetence of the child?
A: No. The competency of his son is not affected by the filial
privilege Rule. The Rule is not strictly speaking a
disqualification but refers to a privilege not to testify, which
can be invoked and waived like other privileges. The son
was not compelled to testify against his father but chose to
waive that filial privilege when he voluntarily testified
against the accused. (People v. Invencion, 398 SCRA 592)
Q: A married to B killed the latter. One of the witnesses
was C, the mother of B, who was being compelled to
testify against A. Can A object on the ground of parental
privilege?
A: No. C is not a direct ascendant of A but that of B, being
the mother of the latter. Thus, the privilege does not
belong to A.
Q: C is the child of the spouses H and W. H sued his wife W
for judicial declaration of nullity of marriage under Article
36 of the Family Code. In the trial, the following testified
over the objection of W: C, H and D, a doctor of medicine
who used to treat W. Rule on W's objections which are the
following:
1. H cannot testify against her because of the rule on
marital privilege;
2. C cannot testify against her because of the doctrine
on parental privilege; and
3. D cannot testify against her because of the doctrine
of privileged communication between patient and
physician. (1998 Bar Question)
A:
1. The rule of marital privilege cannot be invoked in the
annulment case under Rule 36 of the Family Code
because it is a civil case filed by one against the other
(Sec. 22, Rule 130).
2. The doctrine of parental privilege cannot likewise be
invoked by W because she is not being compelled to
testify. It is filial privilege which can be invoked only by
C, not W, who may not be compelled to testify but is
free to testify against her (Sec. 25, Rule 130; Art. 215,
Family Code).
3. D, as a doctor who used to treat W, is disqualified to
testify against W over her objection as to any advice or
treatment given by him or any information which he
may have acquired in his professional capacity [Sec. 24
(c), Rule 130].
Other Privileged Matters
Q: What other matters are considered privileged?
A:
1. The guardian ad litem shall not testify in any
proceeding concerning any information, statement, or
397 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
opinion received from the child in the course of
serving as a guardian ad litem, unless the court finds it
necessary to promote the best interests of the child
[Sec. 5 (e), Rule on Examination of a Child Witness];
2. Editors, publisher, or duly accredited reporter of any
newspaper, magazine or periodical of general
circulation cannot be compelled to reveal the source
of any news report or any information given to him in
confidence, unless a court or a House or a committee
of Congress finds that such revelation is demanded for
State security (R.A. 1477);
3. Voters may not be compelled to disclose for whom
they voted;
4. Trade secrets cannot be disclosed although this is not
absolute as the court may compel disclosure where it
is indispensable for doing justice (Francisco, p. 335,
1992 ed.);
5. Bank deposits are absolutely confidential in nature
except upon written permission of the depositor, or in
cases of impeachment, or upon lawful order of a
competent court (R.A. 1405; Francisco, p. 335, 1992
ed.);
6. Conciliators and similar officials shall not testify in any
court or body regarding any matter taken up at the
conciliation proceedings conducted by them (Art. 233,
Labor Code); and
7. Informers, for the protection of their identity, cannot
be compelled to testify by the prosecutor when their
testimony would merely be cumulative and
corroborative (Herrera, Vol. V, p. 353, 1999 ed.).
8. Information in tax census returns (Air Philippines
Corporation v. Pennswell Inc., G.R. No. 172835,
December 13, 2007)
Q: Can a privileged information be otherwise disclosed
upon a production order issued by the court pursuant to
Rule 27 of the Rules of Court?
A: No. Rule 27 sets an unequivocal proviso that the
documents, papers, books, accounts, letters, photographs,
objects or tangible things that may be produced and
inspected should not be privileged. On the ground of
public policy, the rules providing for production and
inspection of books and papers do not authorize the
production or inspection of privileged matter; that is, books
and papers which, because of their confidential and
privileged character, could not be received in
evidence. Such a condition is in addition to the requisite
that the items be specifically described, and must
constitute or contain evidence material to any matter
involved in the action and which are in the partys
possession, custody or control. (Air Philippines Corporation
v. Pennswell Inc., G.R. No. 172835, December 13, 2007)
EXAMINATION OF A WITNESS
Q: How is the examination of witnesses done?
A: The examination of witnesses presented in a trial or
hearing shall be done in open court and under oath or
affirmation. The answers of the witness shall be given orally
unless the witness is incapacitated to speak, or the question
calls for a different mode of answer (Sec. 1, Rule 132).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the purpose of having the witness answer be
given orally in open court?
A: The purpose is to enable the court to judge the
credibility of the witness by the witness manner of
testifying, intelligence and appearance.
Q: What are the exceptions to the rule that the testimony
of the witness must be given in open court?
A:
1. In civil cases, by depositions pursuant to and under the
limitations of Rules 23 and 24;
2. In criminal cases, by depositions or conditional
examination, pursuant to Secs. 12-15, Rule 119, and
Sec. 1, Rule 123, or by the records of the preliminary
investigation, under the circumstances of Sec. 1(f) of
Rule 115;
3. In criminal cases covered by the Rule on Summary
Procedure where the affidavits of the parties
witnesses constitute their direct testimonies subject
however to cross-examination, re-direct or re-cross
examination;
4. In civil actions covered by the Rule on Summary
Procedure where no examination of witnesses is even
required or allowed; and
5. In agrarian cases where the parties submit affidavits of
their witnesses subject to cross-examination.
6. In cases falling under the judicial affidavit rule where
the direct examination is substituted for the affidavit
of the party and witnesses, without prejudice to cross
examination by the opposing party and re direct
examination. In every case, the court shall take active
part in examining the witness to determine his
credibility as well as the truth of his testimony and to
elicit the answers that it needs for resolving the issues.
Q: What is an oath?
A: It is an outward pledge given by the person taking it that
his attestation or promise is made under an immediate
sense of responsibility to God.
Note: The purpose is to affect the conscience of the witness to
compel him to speak the truth, and for the witness to be punished
for perjury should he willfully falsify the truth.
In order that one may be competent as a witness, it is not
necessary that he has a definite knowledge of the difference
between his duty to tell the truth after being sworn and before, or
that he is able to state it, but it is necessary that he be conscious
that there is a difference (People v. Bisda, 406 SCRA 454).
Q: May the right to have the witness sworn be waived?
A: Yes. If a party admits proof to be taken in a case without
an oath, after the testimony has been acted upon by the
court, and made the basis of a judgment, such party can no
longer object to the admissibility of the testimony (People
v. Bisda, 406 SCRA 454).
Q: What are the matters to be recorded during trial?
398
 EVIDENCE

A: The entire proceedings of a trial or hearing, including: A:

1. Questions propounded to a witness and his answers Use and Fruit Immunity Transactional
thereto; and Immunity
2. The statements made by the judge or any of the Prohibits the use of the Grants immunity to
parties, counsel, or witness with reference to the case witness' compelled the witness from
(Sec. 2, Rule 132). testimony and its fruits in prosecution for an
any manner in offense to which his
Note: These shall be recorded by means of shorthand or stenotype connection with the compelled testimony
or by other means of recording found suitable by the court (Ibid.). criminal prosecution of relates. It is an
the witness. It is immunity from
Q: What is the relevance of the transcript of stenographic immunity from using the prosecution by reason
notes (TSN)? testimony of the witness. or on the basis of the
testimony (Galman v.
A: The TSN, certified as correct by the official stenographer, Pamaran, 138 SCRA)
steno typist or recorder shall be deemed prima facie the
correct statement of the proceedings (Ibid.). Q: May a witness refuse to answer questions material to
the inquiry?
Q: How should the questions be propounded to the
witness? A: GR: No. A witness cannot refuse to answer questions.
The witness has the obligation to answer questions,
A: Questions propounded to a witness should not be: although his answer may tend to establish a claim against
1. irrelevant; him (Sec. 3, Rule 132).
2. indefinite or uncertain;
3. argumentative; XPNs: A witness may validly refuse to answer under
4. calling for conclusion of law; the following:
5. calling for opinion or hearsay evidence; 1. Right against self-incrimination if his answer will
6. calling for illegal answer; tend to subject him to punishment for an offense;
7. calling for self-incriminating testimony; or
8. leading;
9. misleading; Note: The constitutional assurance of the right against
10. degrading to the reputation of witness; self-incrimination is a prohibition against the use of
11. repetitious; and physical or moral compulsion to extort communications
12. calling for a narration. from the accused. It is simply a prohibition against legal
process to extract from the accuseds own lips, against
RIGHTS AND OBLIGATIONS OF A WITNESS his will, admission of his guilt (Ong v. Sandiganbayan &
Office of the Ombudsman, G.R. No. 126858, Sept. 16,
2005).
Q: What are the rights of a witness?
2. Right against self-degradation if his answer will
A:
have a direct tendency to degrade his character.
1. To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
XPNs to the XPNs: A witness may not invoke the
2. Not to be detained longer than the interests of justice
right against self-incrimination nor the right
require;
against self-degradation if:
3. Not to be examined except only as to matters
1. Such question is directed to the very fact at
pertinent to the issue;
issue or to a fact from which the fact at
4. Not to give an answer which will tend to subject him to
issue would be presumed; or
a penalty for an offense unless otherwise provided by
2. If it refers to his previous final conviction
law (right against self-incrimination)
for an offense (Regalado, Vol. II, pp. 841-
842, 2008 ed.).
Note: This refers to immunity statutes wherein the witness is
granted immunity from criminal prosecution for offenses
admitted in his testimony, e.g. under Sec. 8, R.A. 1379, the Note: A witness invited by the Senate who refused to testify and
law providing for the forfeiture of unlawfully acquired arrested for contempt, cannot invoke right against self-
property; and under P.D. 749, in prosecutions for bribery and incrimination in a petition for certiorari and prohibition. The said
graft. right may only be invoked when the incriminating question is being
asked, since he has no way of knowing in advance the nature or
effect of the questions to be asked. That this right may possibly be
5. Not to give an answer, which will tend to degrade his violated or abused is no ground for denying respondent senate
reputation, unless it be to the very fact at issue or to a committees their power of inquiry (In Re: Sabio, G.R. No. 174340,
fact from which the fact in issue would be presumed. Oct. 17, 2006).
But a witness must answer to the fact of his previous
final conviction for an offense (Sec. 3, Rule 132). Q: Distinguish the right against self-incrimination of the
accused from that of an ordinary witness.
Q: What are the classifications of immunity statutes?
A:

399 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Accused Ordinary Witness that he will be killed, forced, intimidated, harassed or

Cannot be compelled to May be compelled to corrupted to prevent him from testifying, or to testify
testify or produce testify by subpoena, falsely, or evasively, because or on account of his
evidence in the criminal having only the right testimony; and
case in which he is the to refuse to answer a 4. he is not a law enforcement officer, even if he would
accused or one of the particular be testifying against the other law enforcement
accused, he cannot be incriminating officers. In such a case, only the immediate members
compelled to do so even question at the time of his family may avail themselves of the protection
by subpoena or other it is put to him. provided for under the Act (Sec. 3, R.A. 6981).
process or order of the
court. He cannot be Q: Can a State witness be liable for contempt or criminal
required either for the prosecution?
prosecution, for co-
accused or even for A: Yes, if he fails or refuses to testify or to continue to
himself. testify without just cause when lawfully obliged to do so, he
shall be prosecuted for contempt. If he testifies falsely or
Q: May a witness refuse to take the witness stand? evasively, he shall be liable to prosecution for perjury. If a
State witness fails or refuses to testify, or testifies falsely or
A: GR: A witness may not refuse to take the witness stand. evasively, or violates any condition accompanying such
immunity without just cause, as determined in a hearing by
XPNs: the proper court, his immunity shall be removed and he
1. An accused in a criminal case; or shall be subject to contempt or criminal prosecution.
2. In civil and administrative cases that partake the Moreover, the enjoyment of all rights and benefits under
nature of or analogous to a criminal R.A. 6981 shall be deemed terminated. The witness may,
proceeding. As long as the suit is criminal in however, purge himself of the contumacious acts by
nature, the party thereto can decline to take testifying at any appropriate stage of the proceedings (Sec.
the witness stand. It is not the character of the 13, R.A. 6981).
suit involved but the nature of the proceedings
that controls (Rosete, et. al. v. Lim, et. al., G.R.
No. 136051, June 8, 2006).

Q: Is the right against self-incrimination available to a

witness who has been admitted to the Witness Protection
Program?

A: Any witness admitted into the program of the Witness

Protection, Security and Benefit Act cannot refuse to testify
or give evidence or produce books, documents, records or
writings necessary for the prosecution of the offense or
offenses for which he has been admitted into the Program
on the ground of the constitutional right against self- ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS
incrimination but he shall enjoy immunity from criminal
prosecution and cannot be subjected to any penalty or Q: What is the order in the examination of an individual
forfeiture for any transaction, matter or thing concerning witness?
his compelled testimony or books, documents, records and
writings produced (Sec. 14, R.A. 6981). A:

Q: Who may be admitted to the Witness Protection,

Security and Benefit Program?

A: Any person who has witnessed or has knowledge or

information on the commission of a crime and has testified
or is testifying or about to testify before any judicial or
quasi-judicial body, or before any investigating authority
may be admitted provided that:
1. the offense in which his testimony will be used is a
grave felony as defined under the Revised Penal Code,
or its equivalent under special laws;
2. his testimony can be substantially corroborated in its
material points;
3. he or any member of his family within the second civil
degree of consanguinity or affinity is subjected to
threats to life or bodily injury or there is a likelihood

UNIVERSITY OF SANTO TOMAS 400

2013 GOLDEN NOTES
 EVIDENCE

2. English rule Where a witness is called to testify to a

particular fact, he becomes a witness for all purposes
and may be fully cross-examined upon all matters
material to the issue, the examination not being
confined to the matters inquired about in the direct
examination.

Note: The English rule is observed in our jurisdiction, except

with respect to cross-examination of the accused, or a hostile
witness.

Note: Cross-examination of a witness is the absolute right, not a

mere privilege, of the party against whom he is called; and with
regard to the accused, it is a right granted by the Constitution. Sec.
14(2), Art. III thereof provides that the accused shall enjoy the right
to meet the witnesses face to face.

Q: What is the effect of death or absence of a witness

after the direct examination by the proponent?

A:
1. If the witness was not cross-examined because of
causes attributable to the cross-examining party and
the witness had always made himself available for
cross-examination, the direct testimony of the witness
shall remain on record and cannot be stricken off
because the cross-examiner is deemed to have waived
his right to cross-examine (Dela Paz v. IAC, G.R. No.
75860, Sept. 17, 1987).
2. If the witness was partially cross-examined but died
before the completion of his cross-examination, his
testimony on direct may be stricken out but only with
respect to the testimony not covered by the cross-
Q: What are the purposes of each stage of the examination (People v. Seeris, G.R. No. L-48883, Aug.
examination? 6, 1980).
3. The absence of a witness is not sufficient to warrant
A: the striking out of his testimony for failure to appear
1. Direct examination To establish the case of the for further cross-examination where the witness has
proponent of the witness. already been sufficiently cross-examined, and the
2. Cross examination matter on which cross-examination is sought is not in
a. To impeach the credibility of the testimony; controversy (Ibid.).
b. To impeach the credibility of the witness;
c. To elicit admissions; and Q: What is the Doctrine of Incomplete Testimony?
d. To clarify certain matters.
3. Redirect examination A: GR: When cross-examination cannot be done or
a. To afford opportunity to the witness to explain or completed due to causes attributable to the party who
amplify his testimony during cross-examination; offered the witness, the incomplete testimony is rendered
and incompetent and should be stricken from the record.
b. To explain any apparent contradiction or
inconsistency in his statements. XPN: Where the prosecution witness was extensively
4. Re-cross examination cross-examined on the material points and thereafter
a. To overcome the proponents attempt failed to appear and cannot be produced despite a
to rehabilitate the witness; and warrant of his arrest. (People v. Gorospe, G.R. No.
b. To rebut damaging evidence brought 51513, May 15, 1984).
out during redirect examination.
Q: Is the party who offered the testimony of a witness
Q: What is the scope of a cross-examination? bound by such testimony?

A: A: GR: Yes, he is bound by the testimony.

1. American rule Cross-examination is restricted to
facts and circumstances which are connected with the XPN: When the witness is the:
matters that have been stated in the direct 1. adverse party;
examination of the witness. 2. hostile witness;

401 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
3. unwilling witness; or
4. a witness required by law to be presented (forced
witness).
Q: What is the rule on recalling of a witness?
A: GR: A witness cannot be recalled without leave of court
as the recalling of a witness is a matter of judicial discretion
(Sec. 9, Rule 132).
XPNs:
1. The examination has not been concluded; or
2. If the recall of the witness was expressly
reserved by a party with the approval of the
court. In these two cases the recall of a
witness is a matter of right (Regalado, Vol. II,
p. 848, 2008 ed.).
Note: Something more than the bare assertion of the need to
propound additional questions is essential before the court's
discretion may rightfully be exercised to grant or deny recall. There
must be a satisfactory showing of some concrete, substantial
ground for instance, that particularly identified material points
were not covered in the cross-examination, or that particularly
described vital documents were not presented to the witness
whose recall is prayed for, or that the cross-examination was
conducted in so inept a manner as to result in a virtual absence
thereof. Absent such particulars, to repeat, there would be no
foundation for a trial court to authorize the recall of any witness
(People v. Rivera, G.R. No. 98376, Aug. 16, 1991).
LEADING AND MISLEADING QUESTIONS
Q: What is a leading question?
A: It is one which suggests to the witness the answer which
the examining party desires. It is not allowed except:
1. On cross-examination;
2. On preliminary matters;
3. When there is difficulty in getting direct and intelligible
answers from a witness who is ignorant, or a child of
tender years, or is of feeble mind or a deaf-mute;
4. To unwilling witness or hostile witness;
Note: A witness may be considered as unwilling or hostile
only if so declared by the court upon adequate showing of his
adverse interest, unjustified reluctance to testify or his having
misled the party into calling him to the witness stand. (Sec.
12, Rule 132)
5. Witness is an adverse party or an officer, director, or
managing agent of a public or private corporation or of
a partnership or association which is an adverse party
(Sec. 10, Rule 132); or
6. In all stages of examination of a child if the same will
further the interests of justice (Sec. 20, AM 004-07-SC).
Q: When is a question preliminary?
A: When the question does not touch on any issue.
Q: Why are leading questions allowed during cross-
examination?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: The witness is not the cross-examining partys witness.
He is expected to be adverse or hostile to the cross-
examiner. He is not expected to cooperate.
Q: What is a misleading question?
A: It is one which assumes as true a fact not yet testified to
by the witness, or contrary to that which he has previously
stated. It is not allowed (Sec. 10, Rule 132) unless waived or
when asking hypothetical questions to an expert witness.
Note: The adverse party should object thereto or ask the court to
expunge the answer from the records, if he has already given his
answer.
METHODS OF IMPEACHMENT OF ADVERSE PARTYS
WITNESS
Q: What is impeachment of a witness?
A: It is a technique employed usually as part of cross-
examination to discredit a witness testimony by attacking
his credibility (Riano, Evidence: A Restatement for the Bar,
p. 323, 2009 ed.).
Q: What is meant by impeachment of the adverse party as
a witness?
A: That the witness is the adverse party does not
necessarily mean that the calling party will not be bound by
the formers testimony. The fact remains that it was at his
instance that his adversary was put on the witness stand.
He is not bound only in the sense that he may contradict
him by introducing other evidence to prove a state of facts
contrary to what the witness testifies. Unlike an ordinary
witness, the calling party may impeach an adverse witness
in all respects as if he had been called by the adverse party,
except by evidence of his bad character. Under a rule
permitting the impeachment of an adverse witness,
although the calling party does not vouch for the witness
veracity, he is nonetheless bound by his testimony if it is
not contradicted or remains unrebutted (Gaw v. Chua, G.R.
No. 160855, April 16, 2008).
Q: May a witness be impeached by evidence of particular
wrongful acts?
A: GR: No. A witness may not be impeached by evidence of
particular wrongful acts.
XPN: If it may be shown by the examination of the
witness, or the record of the judgment, that he has
been convicted of an offense (Sec. 11, Rule 132).
Q: What are the ways of impeaching an adverse partys
witness?
A:
1. By contradictory evidence;
2. By evidence that the general reputation for truth,
honesty or integrity of the witness is bad and
3. By prior inconsistent statements (Sec. 11, Rule 132).
402
 EVIDENCE

or in writing, to give the witness a change to reconcile his

Note: The other modes of impeaching a witness are: conflicting declaration.
1. By showing improbability or unreasonableness of
testimony; Note: The following is the procedure for impeaching a witness by
2. By showing bias, prejudice, and hostility; evidence of prior inconsistent statements:
3. By prior inconsistent acts or conduct;
4. By showing intent and motive;
5. By showing social connections, occupation and manner 1. The witness must be confronted with such statements with
of living; or the circumstances of the times, places and the persons
6. By showing interest (Francisco, pp. 480-481, 1992 ed.). present in which they were made;
2. The witness must be asked whether he made such
By By evidence By prior statements, and if so, allowed to explain them; and
contradictory that his inconsistent 3. If the statement be in writing it must be shown to the witness
before any question is put to him concerning them (Sec. 13,
evidence general statements
Rule 132).
reputation for laying the
truth, predicate" Q: What are the elements of laying the predicate?
honesty, or
integrity of A:
the witness is 1. The alleged statements must be related to the witness
bad including the circumstances of the times and places
Refers to the Since the Refer to and the persons present. If the statements are in
prior testimony weight of the statements, writing they must be shown to him
of the same witness oral or 2. He must be asked whether he made such statements
witness or testimony documentary and also to explain them if he admits making those
other evidence depends on made by the statements (Riano, Evidence: A Restatement for the
presented by his credibility, witness Bar, p. 327, 2009 ed).
him in the same he may be sought to be
case, but not impeached by impeached on Q: When is the rule on laying the predicate inapplicable?
the testimony impairing his occasions
of other credibility by other than the A: It is inapplicable if the prior inconsistent statement
witness showing his trial in which appears in a deposition of the adverse party, and not a
not pleasing he is testifying mere witness, that adverse party who testifies may be
reputation but impeached without laying the predicate as such prior
only as statements are in the nature of admissions of said adverse
regards his party (Regalado, Remedial Law Compendium, Vol. II, p. 852,
reputation for 2008 ed.).
truth, honesty
or integrity Note: The reasons for such inaplicability are:
1. to avoid unfair surprise to the adversary;
2. to save time, as an admission by the witness may make the
Q: May a party impeach his own witness? extrinsic proof necessary; and
3. to give the witness, in fairness to him, a chance to explain the
A: GR: No. By calling a witness, the party certifies his discrepancy.
credibility.
Q: Distinguish laying the predicate from laying the
XPN: The witness is an: foundation or basis.
1. unwilling or adverse witness so declared by the
court; A:
2. adverse party; or Laying The Laying The Foundation or
3. officer of the adverse party who is a juridical Predicate Basis
person (Sec. 12, Rule 132). Refers only to Refers to a situation where
impeachment of a evidence which is otherwise
Note: In these instances, such witnesses may be impeached
witness through incompetent will be
by the party presenting him in all respects as if he had been
called by the adverse party, except by evidence of his bad
prior inconsistent introduced into evidence
character. statements because it falls under the rules
HOW THE WITNESS IS IMPEACHED BY EVIDENCE OF of exclusion. E.g. under the
INCONSISTENT STATEMENTS best evidence rule, a party
(LAYING THE PREDICATE) must first prove that a writing
was duly executed and that
Q; What is meant by laying the predicate? the original has been lost or
destroyed. Without first laying
A: Laying the predicate means that it is the duty of a party the foundation, secondary
trying to impugn the testimony of a witness by means of evidence will not be admitted
prior or subsequent inconsistent statements, whether oral by the court.

403 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

A witness may be allowed A witness may also

EVIDENCE OF THE GOOD CHARACTER OF A WITNESS to refresh his memory testify from such
respecting a fact, by writing or record,
Q: Is evidence of good character of a witness admissible? anything written or though he retains no
recorded by himself or recollection of the
A: No, except when such character has been impeached. under his direction at the particular facts, if he
(Sec. 14, Rule 132) time when the fact is able to swear that
occurred, or immediately the writing or record
Q: When can evidence of good moral character of the thereafter, or later so long correctly stated the
accused be presented? as the fact was fresh in his transaction when
memory and he knew that made, but such
A: The accused may prove his good moral character when it was correctly recorded evidence must be
pertinent to the moral trait involved in the offense charged received with caution
(Sec.51 [a][1], Rule 130). Memory is obscure but There is no
there is still memory recollection
Note: In contrast, in a criminal case, the prosecution cannot prove The main evidence is the The main evidence is
the bad moral character of the accused in its evidence-in-chief. It testimony of the witness the memorandum
can only do so in rebuttal. (Sec. 51 (a)(2), Rule 130)
No need to swear since Witness must swear
the witness simply that the writing
Q: When can evidence of character of the offended party
testifies that he knows correctly states the
be proved?
that the memorandum is transaction
correctly written by him
A: The good or bad moral character of the offended party
or under his direction
may be proved by the accused if it tends to establish in any
reasonable degree the probability or improbability of the
Q: Tony states on direct examination that he once knew
offense charged (Sec. 51 [a][3], Rule 130, Rules of Court).
the facts being asked but he cannot recall them now.
Also, not every good or bad moral character of the
When handed a written record of the facts, he testifies
offended party may be proved under this provision but only
that the facts are correctly stated, but that he has never
those which would establish the probability or
seen the writing before. Is the writing admissible as past
improbability of the offense charged.
recollection recorded? Explain. (1996 Bar Question)
Q: May a judge exclude a witness during the course of the
A: No, because for the written record to be admissible as
trial?
past recollection recorded, it must have been written or
recorded by Tony or under his direction at the time when
A: GR: Yes, the judge may exclude from the court any
the fact occurred, or immediately thereafter, or at any
witness not at the time under examination, so that he may
other time when the fact was fresh in his memory and he
not hear the testimony of other witnesses. The judge may
knew that the same was correctly written or recorded (Sec.
also cause witnesses to be kept separate and to be
16). But in this case Tony has never seen the writing before.
prevented from conversing with one another until all shall
have been examined (Sec. 15).
Q: What is the theory of indivisibility (rule on
completeness)?
XPN: The following may not be excluded:
1. Parties in a civil case;
A: When part of an act, declaration, conversation, writing
2. Expert witness;
or record is given in evidence by one party, the whole of
3. Agent of the party, when the presence of such
the same subject may be inquired into by the other; and
agent is necessary, as when the agent has
when a detached act, declaration, conversation, writing, or
gained such familiarity with the facts that this
record is given in evidence, any other act, declaration,
presence is necessary for the proper
conversation, writing or record necessary to its
management of the action or defense;
understanding may also be given in evidence (Sec. 17, Rule
4. Complaining witness; or
132).
5. Accused (Francisco, pp. 492-293, 1992 ed.)
Q: What is the rule on recantation of a witness?

A: The court must not automatically exclude the original

Q: When may a witness refer to memorandum?
statement based solely on the recantation. It should
determine which statement should be given credence
A:
through a comparison of the original and the new
Present Recollection Past Recollection statements, applying the general rules of evidence (PLDT v.
Revived Recorded Bolso, G.R. No. 159701, Aug. 17, 2007).

Q: What is the right of the adverse party when a writing is

shown to a witness?

UNIVERSITY OF SANTO TOMAS 404

2013 GOLDEN NOTES
 EVIDENCE
A: The adverse party has a right to inspect it to enable him
to cross-examine the witness (Sec. 18, Rule 132).
JUDICIAL AFFIDAVIT RULE
A.M. No. 12-8-8-SC
Q: What is the effect of the judicial affidavit rule as to
direct examination of witnesses?
A: The judicial affidavits of the witnesses shall take the
place of such witnesses direct testimonies (Sec. 2).
Moreover, the party presenting the judicial affidavit of his
witness in place of direct testimony shall state the purpose
of such testimony at the start of the presentation of the
witness (Sec. 6).
Q: What must the judicial affidavit contain?
A: A judicial affidavit shall be prepared in the language
known to the witness and, if not in English or Filipino
accompanied by a translation in English or Filipino, and
shall contain the following:
(a) The name, age, residence or business address, and
occupation of the witness;
(b) The name and address of the lawyer who conducts or
supervises the examination of the witness and the place
where the examination is being held;
(c) A statement that the witness is answering the questions
asked of him, fully conscious that he does so under oath,
and that he may face criminal liability for false testimony or
perjury;
(d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
(i) Show the circumstances under which the witness
acquired the facts upon which he testifies;
(ii) Elicit from him those facts which are relevant to the
issues that the case presents; and
(iii) Identify the attached documentary and object
evidence and establish their authenticity in accordance
with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law
to administer the same (Sec. 3)
Q: What is the duty of the lawyer who conducted the
examination of a witness?
A: The judicial affidavit shall contain a sworn attestation at
the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect
that:
(1) He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers that the
witness gave; and
(2) Neither he nor any other person then present or
assisting him coached the witness regarding the latter's
answers (Sec. 4).
Q: What is the effect of the failure to comply with the
content requirements under Sec. 3 and the attestation
requirement under Sec. 4?
A: The court shall not admit those judicial affidavits as
evidence. The court may however allow only once the
subsequent submission of the complaint replacement
affidavits before hearing or trial provided the delay is for a
valid reason and would not unduly prejudice the opposing
party and provided further, that public or private counsel
responsible for their preparation and submission pays a fine
of not less than P1,000.00 nor more than P5,000.00, at the
discretion of the court.
Q: What proper actions may be maintained by the adverse
party against the judicial affidavit of a witness?
A:
a. The adverse party may move to disqualify the witness or
strike out his affidavit or any answers found in it on the
ground of inadmissibility (Sec. 6).
Note: The court shall promptly rule on the motion and, if
granted, shall cause the marking of any excluded answer by
placing it in brackets under the initials of an authorized court
personnel, without prejudice to the tender of excluded
evidence under Sec. 40, Rule 132.
b. The adverse party shall have the right to cross-examine
the witness on his judicial affidavit and on the exhibits
attached to the same without prejudice to a re-direct
examination that may be conducted by the party who
presented the witness (Sec. 7).
Note: In every case, the court shall take active part in
examining the witness to determine his credibility as well as
the truth of his testimony and to elicit the answers that it
needs for resolving the issues.
Q: Can a party immediately present documentary
evidence after the testimony of the last witness?
A: Yes. Upon the termination of the testimony of his last
witness, a party shall immediately make an oral offer of
evidence of his documentary or object exhibits, piece by
piece, in their chronological order, stating the purpose or
purposes for which he offers the particular exhibit.
After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
respecting that exhibit (Sec. 8).
ADMISSIONS AND CONFESSIONS
Q: What is admission?
A: It is an act, declaration or omission of a party as to a
relevant fact which may be given in evidence against him
(Sec. 26, Rule 130).
405 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What is a confession?
A: It is a categorical acknowledgment of guilt made by an
accused of the offense charged or of any offense
necessarily included therein, without any exculpatory
statement or explanation (Sec. 33, Rule 130; Regalado, Vol.
II, p. 764, 2008 ed.).
Q: Is an offer of compromise an admission of any liability?
A: If the offer of compromise was made in a CIVIL case, it is
NOT an admission of any liability and is NOT admissible
against the offeror.
If the offer was made by the accused in a CRIMINAL case,
the general rule is that it may be received in evidence as an
IMPLIED ADMISSION of his guilt. The exceptions to this rule
are the following:
1. In quasi offenses where there is no criminal intent
(negligence) such as reckless imprudence
2. In criminal cases allowed by law to be compromised such
as:
a. NIRC (Sec. 7c) the CIR has the power to
compromise minor criminal violations as may be
determined by the Secretary of Finance
b. LGC (Sec. 408) Allowed in minor offenses whose
penalties do not exceed one year
c. RPC (Art. 266-C) In cases of marital rape, where
subsequent forgiveness by the wife extinguishes the
criminal action or penalty (Suarez and De la Banda,
Evidence: A Lawyers Companion, 2006 ed.)
Note: No compromise is valid in the following cases:
1. Civil status of persons;
2. Validity of a marriage or legal separation;
3. Any ground for legal separation;
4. Future support;
5. Jurisdiction of courts;
6. Future legitime;
7. Habeas corpus; and
8. Election cases.
Q: What is the underlying reason for the adoption of the
rule against the admission of an offer of compromise in
civil cases? (1998 Bar Question)
A: The reason for the rule against the admission of an offer
of compromise in civil case as an admission of any liability is
that parties are encouraged to enter into compromises.
Courts should endeavor to persuade the litigants in a civil
case to agree upon some fair compromise. (Art. 2029, Civil
Code). During pre-trial, courts should direct the parties to
consider the possibility of an amicable settlement. (Sec.
1[a] of former Rule 20: Sec. 2 [a] of new Rule 16).
Q: Distinguish offer of compromise from ordinary
admission.
A:
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Offer of Compromise Ordinary Admission
Tentative only; any To admit the liability
statement made in and to seek or secure
connection with the relief against a liability
proposal is merely recognized as such
hypothetical; it is in
contemplation of mutual
concessions
Q: Berting was accused of having raped Lisa. Rule on the
admissibility of an offer of Berting to marry Lisa. (1998 Bar
Question)
A: Berting's offer to marry Lisa is admissible in evidence as
an implied admission of guilt because rape cases are not
allowed to be compromised (Sec. 27, Rule 130).
Q: Accused was charged with rape. Among the witnesses
of the prosecution was the father of the complainant who
testified that the relatives of the accused sought a
compromise agreement of the case. Is the offer admissible
in evidence?
A: Yes, the offer of settlement made by the relatives of the
accused to the complainants father militates against the
innocence of the accused. Indeed, an offer of compromise
by the accused in criminal cases, except those involving
quasi-offenses or those allowed by law to be compromised
may be received in evidence as an implied admission of
guilt (People v. Salvador, 396 SCRA 298)
Note: An offer of compromise made by the parents of the accused
without his participation cannot be considered as an implied
admission. Following the principle of res inter alios acta, the
actions of his parents cannot prejudice accused, since he was not a
party to the conversation nor was it shown that he was privy to the
offer of compromise. They cannot be considered as evidence
against the accused (People v. Gaudia, 423 SCRA 520)
Q: Lloydie, while driving his car, ran over Bea. Lloydie
visited Bea at the hospital and offered to pay for her
hospitalization expenses. After the filing of the criminal
case against Lloydie for serious physical injuries through
reckless imprudence, Lloydies insurance carrier offered to
pay for the injuries and damages suffered by Bea. The
offer was rejected because Bea considered the amount
offered as inadequate.
1. Is the offer by Lloydie to pay the hospitalization
expenses of Bea admissible in evidence?
2. Is the offer by Lloydie's insurance carrier to pay
for the injuries and damages of Bea admissible in
evidence? (1997 Bar Question)
A:
1. It is not admissible in evidence to prove his guilt in
both the civil and criminal cases (Sec. 27, par. 4).
2. No. It is irrelevant. The obligation of the insurance
company is based on the contract of insurance and is
not admissible in evidence against the accused
because it was not offered by the accused but by the
insurance company which is not his agent.
406
 EVIDENCE

Q: What are the other rules on admissibility in cases of contract on the ground that when she went on a European
offer or plea? tour, there was no European tour manager, the Filipino
guide was a first timer, and the hotels where they were
A: billeted were not first class. Kenstar contended that the
Offer or Plea Admissibility tour was satisfactory because out of 18 participants, only
Plea of guilty later Not admissible in Mau actually complained. Can the fact that the other
withdrawn by the evidence agains tthe participants in the tour filed no case against Kenstar be
accused accused who made the used as evidence to show that B has no cause of action?
plea
Offer by the accused to Not admissible in A: No. Rule 130, Sec. 28 of the Rules of Court provides that
plead guilty to a lesser evidence agains tthe the rights of a party cannot be prejudiced by an act,
offense but unaccepted accused who made the declaration or omission of another. The failure of the other
by prosecution offer participants to file and action should not prejudice Mau
Offer to pay or Not admissible in (Geraldez v. Court of Appeals, 230 SCRA 320).
payment of medical, evidence as proof of
hospital or other civil or criminal liability ADMISSION BY A PARTY
expenses occasioned by for the injury (Suarez
injury (Good Samaritan and De la Banda, Q: What is admission?
Rule) Evidence: A Lawyers
Companion, 2006 ed.) A: It is an act, declaration or omission of a party as to a
relevant fact which may be given in evidence against him
RES INTER ALIOS ACTA RULE (Sec. 26, Rule 130). Facts alleged in the complaint are
deemed admissions of the plaintiff and binding upon him.
Q: What is the principle of res inter alios acta alteri nocere These are also conclusive as against the pleader. (Del
non debet? Rosario v. Gerry Roxas Foundation, June 8, 2011)

A: This principle literally means things done between Q: What are the requisites for an admission to be
strangers ought not to injure those who are not parties to admissible?
it. It has two branches:
A:
1. The rights of a party cannot be prejudiced by an act, 1. Must involve matters of fact and not of law;
declaration, or omission of another (Sec. 28). 2. Must be categorical and definite;
2. Evidence that one did or did not do a certain thing at 3. Must be knowingly and voluntarily made; and
one time is not admissible to prove that he did or did 4. Must be adverse to the admitters interests (Ibid.).
not do the same or similar thing at another time (Sec.
34, Rule130). Q: What is a self-serving declaration?

Q: What are the exceptions to the res inter alios acta rule
(first branch)?
A:
1. Admission by a co-partner or agent (Sec. 29, Rule 130);
2. Admission by a co-conspirator (Sec. 30, Rule 130); and
3. Admission by privies (Sec. 31, Rule 130).
Note: The rule has reference to extrajudicial declarations. Hence,
statements made in open court by a witness implicating persons
aside from him are admissible as declarations from one who has
personal knowledge of the facts testified to.
Q: What is the reason for the rule on res inter alios acta?
A: On principle of good faith and mutual convenience, a
mans own acts are binding upon himself and are evidence
against him. So are his conduct and declarations. It would
not only be rightly inconvenient but also manifestly unjust,
that a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or
conduct be used as evidence against him (People v. Vda. De
Ramos, 403 SCRA 167)
Q: Mau sued Kenstar Travel Corporation for breach of
A: It is one which has been made extra-judicially by the
party to favor his interest. It is not admissible in evidence
because they are inherently untrustworthy, and would
open the door to fraud and fabrication of testimony.
Note: Self-serving evidence are inadmissible because the adverse
party is not given the opportunity for cross-examination, and their
admission would encourage fabrication of testimony (Hernandez
vs. CA, 228 SCRA 429). Statements in affidavits are not sufficient to
prove the existence of agricultural tenancy. It is self-serving. It will
not suffice to prove consent of the owner. Independent evidence is
necessary (Rodriguez vs. Salvador, G.R. No. 171972, June 8, 2011).
Q: After working as a laborer for 43 years, A resigned from
Rufina Patis Factory. Thereafter, he availed of his pension
from the SSS and executed an affidavit stating that he was
never re-employed. However, when he filed a claim for
retirement benefits from his employer before the NLRC,
he alleged that he continued working for Rufina Patis
Factory for 4 more years. Can Rufina Patis Factory use As
affidavit executed before the SSS as an admission against
his interest?
A: Yes. The document is the best evidence which affords
greater certainty of the facts in dispute. While the affidavit
may have facilitated the release of the retirement benefits
from SSS, hence, beneficial to him at that time, it may still

407 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

be considered as admission against interest since the as established.

disserving quality of the admission is judged as of the time
it is used or offered in evidence and not when such
admission was made. Thus, it matters not that the
admission was self serving at the time it was made, so long
as it is against As present claim (Rufina Patis Factory v.
Alusitain, 434 SCRA 419).
Q: What are the classifications of admissions?
A:
1. Express it is a positive statement or act.
2. Implied it is one which may be inferred from the
declarations or acts of a person.
3. Judicial when made in the course of a judicial
proceeding.
4. Extrajudicial when made out of court or even in a
proceeding other than the one under consideration.
5. Adoptive It is a partys reaction to a statement or
action by another person when it is reasonable to treat
the partys reaction as an admission of something
stated or implied by the other person. A third persons
statement becomes the admission of the party
embracing or espousing it. Adoptive admission may
occur when a party:
a. Expressly agrees to or concurs in an oral
statement made by another;
b. Hears a statement and later on essentially repeats
it;
c. Utters an acceptance or builds upon the assertion
of another;
d. Replies by way of rebuttal to some specific points
raised by another but ignores further points
which he or she has heard the other make; or
e. Reads and signs a written statement made by
another (Riano, Evidence: A Restatement for the
Bar, p. 117, 2009 ed; Republic v. Kendrick
Development Corp., G.R. No. 149576, Aug. 8,
2006).
Conclusive upon the Rebuttable
admitter
Admissible even if self- Not admissible if self-
serving serving
Subject to cross- Not subject to cross-
examination examination
Q: What is meant by the principle of adoptive admission?
A: It states that a party may, by his words or conduct,
voluntarily adopt or ratify anothers statement. Where it
appears that a party clearly and unambiguously assented to
or adopted the statements of another, evidence of those
statements is admissible against him. (Riano, Evidence: A
Restatement for the Bar, p. 117, 2009 ed)
It is a partys reaction to a statement or action by another
person when it is reasonable to treat the partys reaction as
an admission of something stated or implied by the other
person. The basis for admissibility of admissions made
vicariously is that arising from the ratification or adoption
by the party of the statements which the other person had
made. (Estrada v. Desierto, G.R. Nos. 146710-15, April 3,
2001).
Note: One good example of adoptive admission is the alleged
admissions made by President Estrada when his options had
dwindled when, according to the Angara Diary, the Armed Forces
withdrew its support from him as President and Commander-in-
Chief. Thus, Angara had to allegedly ask Senate President Pimentel
to advise Estrada to consider the option of dignified exit or
resignation. Estrada did not object to the suggested option but
simply said he could never leave the country. According to the
court, his silence on this and other related suggestions can be
taken as adoptive admissions by him (Estrada v. Desierto, G.R. Nos.
146710-15, Apr. 3, 2001).

Q: Distinguish judicial admission from extrajudicial Q: What is the rationale for the rule on admission against
admission. interest?

A: A: The rationale for the rule is based on the presumption

JUDICIAL ADMISSIONS
Those made in the
course of the proceeding
in the same case
Do not require proof and
may be contradicted only
by showing that it was
made through palpable
mistake or that no such
admission was made
(Sec. 4, Rule 129).
Judicial admissions need
not be offered in
evidence since it is not
evidence. It is superior
to evidence and shall be
considered by the court
EXTRAJUDICIAL that no man would declare anything against himself unless
ADMISSIONS such declaration was true. Thus, it is fair to presume that
Those made out of the declaration corresponds to the truth, and it is his fault if
court or in a judicial it is not (Rufina Patis Factory v. Alusitain, 434 SCRA 419).
proceeding other than
the one under Q: Anabelle Gutierrez borrowed money from Ligaya
consideration Santos for which she issued 5 checks as guarantee for the
Regarded as evidence loan; however, these were dishonored for the reason
and must be offered as closed account. Later, Anabelle executed a document
such, otherwise the which states that: I, Anabelle Rama Gutierrez certify that
court will not consider I received all my old checks from Mrs. Ligaya Santos in
it in deciding the case. exchange to the new ones I gave her. In agreement, Mrs.
Ligaya agreed to drop her case against me. The
replacement checks were subsequently honored except
Requires formal offer for one check. Thus, trial ensued and Anabelle was found
for it to be considered guilty for violation of BP 22 based solely on the document
she executed. Did the trial court acted correctly?
A: No. the trial court misconstrued and misapplied the rule
with regard to admissions in criminal cases. An admission is

UNIVERSITY OF SANTO TOMAS 408

2013 GOLDEN NOTES
 EVIDENCE
a mere acknowledgment of a fact or of circumstance from
which guilt may be inferred, tending to incriminate the
speaker, but not in itself sufficient to establish guilt beyond
reasonable doubt. By itself, the letter acknowledging that
Anabelle issued the checks and that she was replacing them
does not prove beyond reasonable doubt her culpability
under BP 22. It is indispensable that the checks she issued
be offered in evidence because the gravamen of the
offense charged is the act of knowingly issuing a check with
insufficient funds (Gutierrez v. Palattao, 292 SCRA 26).
ADMISSION BY A THIRD PARTY
Q: What is the rule with respect to admission made by a
third party?
A: GR. The act, declaration or omission made out of court
of a party as to a relevant fact may be given in evidence
against him but may not be given in evidence against
another person.
XPN. The act or omission of one party made out of court
may be used as evidence against another when its
admission is made by:
a. A partner
b. An agent
c. A joint owner
d. A joint debtor
e. A person jointly interested with the party
f. A conspirator
g. A privy or successor in interest (Suarez and De la Banda,
Evidence: A Lawyers Companion, 2006 ed.)
Q: Francisco was charged with violating PD No. 1612 or
the Anti Fencing Decree. Among the evidence submitted
against him was the testimony of Jovita in a previous
criminal case wherein the accused therein, Pacita, was
convicted of theft and where she stated that Francisco
bought stolen jewelries from her. Can the admission in the
previous case be used against Francisco?
A: No. It bears stressing that Francisco was not a party to
the previous criminal case where Pacita was the accused.
The rule is that the acts, or declarations of a person are not
admissible against a third party. Only parties to a case are
bound by a judgment of the trial court (Francisco v. People,
434 SCRA 122). Without presenting Jovita to testify on her
admission during the previous criminal case, even if made
in a previous judicial proceeding, it remains an extrajudicial
admission without any effect, insofar as the present action
against Francisco is concerned.
ADMISSION BY A CO-PARTNER OR AGENT
Q: What are the requisites for an admission of a partner to
bind his co-partners or an agent to bind his principal?
A:
409
1. The act or declaration of a partner or agent of the
party must be within the scope of his authority;
2. The admission was made during the existence of the
partnership or agency; and
3. The existence of the partnership or agency is proven
by independent evidence other than such act or
declaration (Sec. 29). The Articles of Incorporation or a
Special Power of Attorney may be presented for such
purpose (Suarez and De la Banda, Evidence: A Lawyers
Companion, 2006 ed.)
Note: The same rule applies to an act or declaration of a joint
owner, joint debtor or other person jointly interested with the
party.
Q: The Republic of the Philippines filed a forfeiture case
against the heirs of the late former President Marcos. In
one of her manifestations before the Sandiganbayan,
Imelda Marcos admitted that she owned 90% of the Swiss
bank deposits and only 10% belongs to the estate of the
late President Marcos. The other heirs also made separate
admissions in their pleadings. What is the value of these
admissions?
A: The individual and separate admissions of each
respondent bind all of them pursuant to Sec. 29 of Rule 130
of the Rules of Court. The declaration of a party is
admissible against a party whenever a privity of estate
exists between the declarant and the party. It generally
denotes a succession of rights. Without doubt, privity exists
among the respondents in this case. Where several co-
parties exists who are jointly interested in the subject
matter of the controversy, the admission of one is
competent against all (Republic v. Sandiganbayan, 406
SCRA 190).
Q: Are admissions made after a partnership has been
dissolved fall within the exception?
A: GR: No, because such are made when the partnership
ceased to exist.
XPN: Where the admissions are made in connection
with the winding up of the partnership affairs, said
admissions are still admissible as the partner is acting
as an agent of his co-partner in said winding up.
(Regalado, Vol. II, p. 759, 2008 ed.)
ADMISSION BY A CONSPIRATOR
Q: When does conspiracy exist?
A: It exists when two or more persons come to an
agreement concerning the commission of a felony and
decide to commit it.
Note: Once conspiracy is proven, the act of one is the act of all. The
statement therefore of one may be admitted against the other co-
conspirators as an exception to the rule of res inter alios acta.
Q: What are the requisites of an admission by a
conspirator?
A:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

1. The declaration or act be made or done during the De la Banda, Evidence: A Lawyers Companion, 2006
existence of the conspiracy; ed.).
2. The declaration or act must relate to the purpose and
object of the conspiracy; and Q: Del Monte Development Corporation filed a case to be
3. The conspiracy must be shown by evidence other than adjudged owner of a piece of land against Ababa claiming
the declaration or act (evidence aliunde) (Sec. 30). that it acquired a lot from Lucero in 1964. As a defense,
Ababa presented a document executed by Lucero in 1968
Note: This rule applies only to extrajudicial acts or admission and to settle the controversy. Can the document bind Del
not to testimony at trial where the party adversely affected has the Monte as successor in interest of Lucero?
opportunity to cross-examine the witness. (People vs. Baharan,
Jan. 10, 2011).
A: No. The admission of a former owner of a property must
have been made while he was the owner thereof in order
Q: A was convicted of robbery with homicide. Among the
that such admission may be binding upon the present
evidence used to convict her was the extrajudicial
owner. Hence, Luceros act of executing the 1968
confession of her co-accused, an alleged co-conspirator,
document have no binding effect on Del Monte, the
which confession was made with the assistance of
ownership of the land having passed to it in 1964 (Gevero v.
counsel. Can such admission be used against A?
IAC, 189 SCRA 201).
A: No. In order for such admission to be admissible in
ADMISSION BY SILENCE
evidence, there must be independent evidence aside from
the extrajudicial confession to prove conspiracy. There
Q: When is there an admission by silence?
being no independent evidence to prove conspiracy, As
culpability was not sufficiently established (People v. Vda.
A: There is admission by silence when a party does or says
De Ramos, 403 SCRA 167).
nothing when he hears or observes an act or declaration
made in his presence when such act or declaration is such
Q: Are extrajudicial admissions made by a conspirator
as naturally to call for action or comment if not true, and
after the conspiracy had been terminated and even before
when proper and possible for him to do so. Such may be
trial, be admissible against the co-conspirator?
given in evidence against him (Sec. 32, Rule 130).
A: No, except in the following cases:
Q: What are the requisites of an admission by
1. If made in the presence of the co-conspirator who
silence/adoptive admission?
expressly or impliedly agreed therein;
2. Where the facts in said admission are confirmed in the
A:
individual extrajudicial confessions made by the co-
1. He must have heard or observed the act or declaration
conspirator after their apprehension;
of the other person;
3. As a circumstance to determine the credibility of the
2. He must have had the opportunity to deny it;
witness; or
3. He must have understood the statement;
4. As circumstantial evidence to show the probability of
4. He must have an interest to object, such that he would
the co-conspirators participation in the offense.
naturally have done so, if the statement was not true;
(Regalado, Vol. II, p. 761, 2008 ed.)
5. The facts were within his knowledge; and
6. The fact admitted or the inference to be drawn from
ADMISSION BY PRIVIES
his silence is material to the issue (Sec. 32, Rule 130;
People v. Paragsa, G.R. No. L-44060, July 20, 1978).
Q: Who are privies?
Note: The rule on admission by silence does not apply when a
A: Privies refer to those who have mutual or successive person is under an official investigation. For the silence of a person
relationship to the same rights of property or subject under a custodial investigation for the commission of an offense
matter such as personal representatives, heirs, devisees, should not be construed as an admission by silence because a
legatees, assigns, voluntary guarantees or judgment person has the right to remain silent and to be informed of that
creditors or purchasers from them with notice of the facts. right. (Sec. 12, Art. III, 1987 Constitution; Riano, Evidence: A
Restatement for the Bar, p. 126, 2009 ed) However, if it is not the
Q: What are the elements of an admission by privies? police investigators who confronted the accused but the owner of a
carnapped vehicle, the silence of one after being implicated by the
other accused serves as an admission by silence as he did not refute
A: the statements of his co-accused despite having heard of them (See
1. One (successor in interest) derives title to property People v. Garcia, 400 SCRA 229)
from another (predecessor in interest) through any
legal means of transfer
2. A statement, act or declaration is made by the
predecessor in interest in relation to the property and CONFESSIONS
while holding the title thereof
3. Said statement, act or declaration is evidence against Q: What is a confession?
his successor in interest (Sec. 31, Rule 130; (Suarez and

UNIVERSITY OF SANTO TOMAS 410

2013 GOLDEN NOTES
 EVIDENCE

A: It is a categorical acknowledgment of guilt made by an the cadaver and brought to the police station. The crime
accused of the offense charged or of any offense laboratory determined that the woman had been raped.
necessarily included therein, without any exculpatory While in police custody, Carlito broke down in the
statement or explanation (Sec. 33, Rule 130; Regalado, Vol. presence of an assisting counsel and orally confessed to
II, p. 764, 2008 ed.). the investigator that he had raped and killed the woman,
detailing the acts he had performed up to his dumping of
Note: If the accused admits having committed the act in question the body near the creek. He was genuinely remorseful.
but alleges a justification therefor, such as absence of criminal During the trial, the State presented the investigator to
intent, the same is merely an admission (Ibid.). testify the oral confession of Carlito. Is the oral confession
admissible as evidence of guilt? (2008 Bar Question)
Q: What are the classifications of confession?
A: No. The oral confession is not admissible as evidence of
A: guilt of Carlito because he was already under arrest and in
1. Judicial confession is one made by the accused police custody when he made the extrajudicial confession
before an open court in which the case is pending and and he was not informed of his right to be warned and the
in the course of legal proceedings therein and, by Miranda rights particularly the right to remain silent.
itself, can sustain conviction and is admissible against Additionally, it does not appear that the counsel present is
ones co-accused. It is governed by Secs., 1, 3 & 4 of his counsel of his choice.
Rule 116.
2. Extrajudicial confession is one made in any other Q: Distinguish admission from confession
place or occasion other than the court where the case
is pending and cannot sustain a conviction unless A:
corroborated by evidence of corpus delicti. It is Admission Confession
generally binding only upon the confessant and is not
A statement of fact A statement of fact
admissible against his co-accused. It is governed by
which does not involve which involves an
Sec. 33 of Rule 130 (Regalado, Remedial Law
an acknowledgment of acknowledgment of
Compendium, Vol. II, p. 765, 2008 ed.).
guilt or liability guilt or liability
May be made by third Can be made only by
Q: What are the requisites for a confession to be
persons and in certain the party himself and, in
admissible as evidence?
cases, are admissible some instances, are
against a party admissible against his
A:
co-accused
1. It must involve an express and categorical
Applies to both criminal Applies only to criminal
acknowledgement of guilt;
and civil cases cases
2. Facts admitted must be constitutive of a criminal
May be express or Always express
offense;
implied
3. It must have been given voluntarily;
4. It must have been intelligently made, the accused
realizing the importance or legal significance of his act; Q: What are the requirements in order that an
ADMISSION OF GUILT of an accused during a custodial
and
investigation be admitted in evidence? (2006 Bar
5. There must have been no violation of Sec, 12 (Miranda
rights), Art. III (Bill of Rights) of the 1987 Constitution Question)

Note: A confession to a person, who is not a police officer, is A:

admissible in evidence. The declaration acknowledging his 1. The admission must be voluntary.
guilt of the offense charged, or of any offense necessarily 2. The admission must be in writing.
included therein, may be given in evidence against the 3. The admission must be made with the assistance of
declarant. Such admissions are not covered by Sections 12 (1) competent, independent counsel.
and (3) of Article III of the Constitution, because they were 4. The admission must be express (People vs. Prinsipe,
not extracted while he was under custodial investigation. G.R. No. 135862, May 2, 2002).
(People v. Davao, et. al, G.R. No. 174660, May 30, 2011)
5. In case the accused waives his rights to silence and to
counsel, such waiver must be in writing, executed with
6. It must be in writing and signed by such person in the
the assistance of competent, independent counsel.
presence of his counsel or in the latters absence, upon
a valid waiver and in the presence of any of the
parents, elder brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school
supervisor or priest or minister of the gospel as chosen
Q: What is the reason for the adoption of the rule against
by him (Sec. 2d, R.A. 7438;(Regalado, Vol. II, p. 765,
the admission of illegally obtained extrajudicial
2008 ed.).
confession? (1998 Bar Question)
Q: The mutilated cadaver of a woman was discovered near
a creek. Due to witnesses attesting that he was the last
A: An illegally obtained extrajudicial confession nullifies the
person seen with the woman when she was still alive,
intrinsic validity of the confession and renders it unreliable
Carlito was arrested within 5 hours after the discovery of

411 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
as evidence of the truth. (Moran, vol. 5, p. 257) It is the fruit
of a poisonous tree.
Q: May the extra-judicial confession of an accused be
admitted in evidence against his co-accused?
A: GR: An extrajudicial confession is not admissible against
the confessors co-accused. Said confession is hearsay
evidence and violative of the res inter alios acta rule.
XPN: It may be admitted in evidence against his co-
accused in the following cases:
1. In case of implied acquiescence of the co-accused
to the extrajudicial confession;
2. In case of interlocking confessions;
3. Where the accused admitted the facts stated by
the confessant after being apprised of such
confession;
4. If they are charged as co-conspirators of the
crime which was confessed by one of the accused
and said confession is used only as corroborating
evidence;
5. Where the confession is used as circumstantial
evidence to show the probability of participation
by the co-conspirator;
6. When the confessant testified for his co-
defendant; and
7. Where the co-conspirators extrajudicial
confession is corroborated by other evidence on
record (Regalado, Vol. II, pp. 772-773, 2008 ed.).
Q: What is the doctrine of interlocking confessions?
A: It states that extrajudicial confessions independently
made without collusion which are identical with each other
in their essential details and corroborated by other
evidence against the persons implicated, are admissible to
show the probability of the latters actual participation in
the commission of the crime.
Q: 4 of the 6 suspects in the crime of kidnapping with
double murder executed separate extrajudicial statements
confessing to the crime and implicating the others. The
statements were independently executed but are identical
with each other in their material details. There are also
distinct similarities in the narration of events leading to
the killings. Is the extrajudicial confession admissible
against the others?
A: Yes. The rule that an extrajudicial statement is evidence
only against the person making it, also recognizes various
exceptions. One such exception is the rule on interlocking
confessions where several extrajudicial statements had
been made by several persons charged with an offense and
there could have been no collusion with reference to said
several confessions bu the fact that the statements are in
all material respects identical, is (1) confirmatory of the
confession of the co-defendants and is admissible against
other persons implicated therein. (2) They are also
admissible as circumstantial evidence against the person
implicated therein to show the probability of the latters
actual participation in the commission of the crime and (3)
may likewise serve as corroborative evidence if it is clear
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
from other facts and circumstances that other persons had
participated in the perpetration of the crime charged and
proved (People v. Lising, 285 SCRA 595)
SIMILAR ACTS AS EVIDENCE
nd
2 Branch of the Res Inter Alios Acta Rule (Sec. 34, Rule
130)
Q: What does the rule prohibit?
A: It prohibits the admission of the so-called propensity
evidence and decrees that evidence that one did or did not
do a certain thing at one time is NOT admissible to prove
that he did or did not do the same or a similar thing at
another time.
Q: What is the purpose of the Rule?
A: 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 relevant issues, and diverts the attention of the court
from the issues immediately before it. Hence, the
evidentiary rule guards the practical inconvenience of trying
collateral issues and protracting the trial, and prevents
surprise or other mischief prejudicial to litigants (Cruz v. CA,
G.R. No. 126713, July 27, 1998).
Q: When is evidence of similar acts or previous conduct
admissible?
A: It is admissible where such evidence may prove:
1. Specific intent
2. Knowledge
3. Identity
4. Plan
5. System
6. Scheme
7. Habit
8. Custom
9. Usage and
10. The like (Sec. 34, Rule 130),
Q: Accused was charged with 2 counts of kidnapping.
Since the 2 incidents happened almost simultaneously, the
cases were consolidated and joint trial ensued. In the first
case, accused tied the hands of the 2 victims and pointed
their guns at them. In the second case, however, it
appears that the 2 victims were not physically threatened
or tied. Can evidence in the first case be used in the
second to prove that accused had the intent to deprive
the victims of liberty?
A: Yes. The evidence shows the intent of the accused. That
the victims hands were not tied nor guns poked at their
sides when they were taken by the accused in the second
case do not conclusively preclude the deprivation of liberty.
The circumstances surrounding the taking of the victims in
the first case, particularly the previous conduct of accused
in kidnapping them, plainly demonstrates their intent to
likewise deprive the victims in the other case, of their
liberty (People v. Dadles, 278 SCRA 393).
412
 EVIDENCE
Q: What is the rule on unaccepted offer?
A: An offer in writing to pay a particular sum of money or
to deliver a written instrument or specific personal
property is, if rejected without valid cause, equivalent to
the actual production and tender of the money, instrument,
or property (Sec. 35, Rule 130).
HEARSAY
MEANING OF HEARSAY
Q: Define hearsay evidence (1999 Bar Question)
A: It signifies all evidence which is not founded upon the
personal knowledge of the witness from whom it is elicited
and which consequently does not depend for its credibility
and weight upon the confidence which the court may have
in him. It is information relayed from another person to the
witness before it reaches the court (Go v. CA, G.R. No.
112550, Feb. 5, 2001). It also includes all assertions where,
though derived from personal knowledge, the adverse
party is not given an opportunity to cross-examine.
The testimony of a witness regarding a statement made by
another person, if intended to establish the truth of the
facts asserted in the statement, is clearly hearsay evidence,
it is otherwise if the purpose of placing the statement in the
record is merely to establish the fact that the statement
was made or the tenor of such statement.
Q: What is the hearsay rule? (2007 Bar Question)
A: It states that a witness can testify only to those facts
which he knows of based on his personal knowledge or
those which are derived from his own perception (Sec. 36,
Rule 130).
Q: What are the elements of hearsay evidence?
A:
1. There must be an out-of-court statement; and
2. The statement made out of court, is repeated and
offered by the witness in court to prove the truth of
the matters asserted by the statement (Riano,
Evidence: A Restatement for the Bar, p. 348, 2009 ed.).
Note: Newspaper clippings are hearsay and of no evidentiary value
at all whether objected to or not, unless offered for a purpose
other than proving the truth of the matter asserted. (Feria vs. CA,
325 SCRA 525)
Medical certificates cannot be admitted in the absence of the
testimony of the physician who examined the complaint for alleged
torture wounds.
Affidavits are inadmissible unless the affiants themselves are
placed in the witness stand to testify therefrom.
Q: What are the two concepts of hearsay evidence?
A:
1. Any evidence, whether oral or documentary, is
hearsay if its probative value is not based on the
personal knowledge of the witness but on the
413
knowledge of some other person not on the witness
stand (Regalado, Vol. II, p. 776, 2008 ed.).
2. It also includes all assertions which have not been
subjected to cross-examination by the adverse party at
the trial in which they are being offered against him
(Herrera, Vol. V, p. 581, 1999 ed.).
Q: What is double hearsay?
A: It is a testimony based on third hand information related
to the witness by someone who heard it from others.
Q: Romeo is sued for damages for injuries suffered by the
plaintiff in a vehicular accident. Julieta, a witness in court,
testifies that Romeo told her that he heard Antonio, a
witness to the accident, gives an excited account of the
accident immediately after its occurrence. Is Julietas
testimony admissible against Romeo over proper and
timely objection? Why? (2002 Bar Question)
A: No, because while the excited account of Antonio, a
witness to the accident, was told to Romeo, it was only
Romeo who told Julieta about it, which makes it hearsay.
REASON FOR EXCLUSION OF HEARSAY EVIDENCE
Q: What is the rationale of excluding hearsay evidence?
A: There is no opportunity for cross-examination hence, it is
not subject to the test of truth since the declarant is not
available and available for cross-examination.
In criminal cases, its admission would be a violation of the
constitutional provision that the accused shall enjoy the
right of being confronted with the witnesses testifying
against him and to cross-examine them. Moreover, the
court is without opportunity to test the credibility of
hearsay statements by observing the demeanor of the
person who made them.
Q: What are the classifications of out-of-court statements?
A:
1. Hearsay Its probative force depends, in whole or in
part, on the competency and credibility of some
persons other than the witness by whom it is sought to
produce it. It is inadmissible as evidence when the
purpose for introducing the out-of-court statement is
to prove the truth of the facts asserted therein
(Estrada v. Desierto, G.R. Nos. 146710-15 & 146738,
Apr. 3, 2001).
2. Non-hearsay This occurs when the purpose for
introducing the statement is not to prove the truth of
the facts asserted therein but only the making of the
statements and are admissible in evidence when the
making of the statement is relevant. These are the so-
called independently relevant statements.
3. Exceptions to the hearsay rule Those which are
hearsay but are considered as exceptions to the
hearsay rule and are therefore admissible (Secs. 37-47,
Rule 130).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: What are independently relevant statements?
A: These are statements which are relevant independently
of whether they are true or not. They are neither hearsay
nor an exception to the hearsay rule as the purpose thereof
is not to prove the truth of the declaration or document
(Estrada v. Desierto, G.R. Nos. 146710-15 & 146738, Apr. 3,
2001).
Q: What are the classifications of independently relevant
statements?
A:
1. Those statements which are the very facts in issue;
2. Those statements which are circumstantial evidence of
the fact in issue. It includes the following:
a. Statements of a person showing his state of mind,
that is, his mental condition, knowledge, belief,
intention, ill-will and other emotions;
b. Statements of a person which show his physical
condition, as illness and the like;
c. Statements of a person from which an inference
may be made as to the state of mind of another,
i.e., the knowledge, belief, motive, good or bad
faith, etc. of the latter;
d. Statements which may identify the date, place
and person in question; and
e. Statements showing the lack of credibility of a
witness. (Estrada v. Desierto, etc. et al., G.R. Nos.
146710-15, April 3, 2001).
Q: Annie overheard Billy call Rocky a thief. In an action for
defamation filed by Rocky against Billy, is the testimony of
Annie offered to prove the fact of utterance i.e., that Billy
called Rocky a thief, admissible in evidence? Explain.
(1999 Bar Question)
A: Yes. The testimony of Annie is admissible in evidence as
an independently relevant statement. It is offered in
evidence only to prove the tenor thereof, not to prove the
truth of the facts asserted therein. Independently relevant
statements include statements which are on the very facts
in issue or those which are circumstantial evidence thereof.
The hearsay rule does not apply.
Q: Are statements made through an interpreter hearsay?
A: Yes, if a witness is offered to testify to the statements of
another person, spoken in a language not understood by
him, but translated for him by an interpreter, such witness
is not qualified, because he does not speak from personal
knowledge. All that he can know as to the testimony is from
the interpretation thereof which is in fact given by another
person.
XPN: In cases where the interpreter had been selected:
1. By common consent of the parties endeavoring to
converse;
2. By a party against whom the statements of the
interpreter where offered in evidence (Principal-Agent
Rule).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is non-human evidence?
A: It is the testimony of a witness as to statements made by
a non-human declarant (e.g. machines and computers). It
does not violate the rule on hearsay, hence not covered by
the Rule. Machines and animals, unlike humans, lack
conscious motivation to tell falsehoods. The workings of the
machines can be explained by human witnesses who may
then be cross-examined (Herrera, Vol. V, p. 581, 1999 ed.).
EXCEPTIONS TO THE HEARSAY RULE
Q: What are the exceptions to the hearsay rule? (1999 Bar
Question)
A:
1. Dying declaration (Sec. 37);
2. Declaration against interest (Sec. 38);
3. Act or declaration about pedigree (Sec. 39);
4. Entries in the course of business (Sec. 43);
5. Testimony or deposition at a former proceeding (Sec.
47);
6. Family reputation or tradition regarding pedigree (Sec.
40);
7. Common reputation (Sec. 41);
8. Parts of Res gestae (Sec. 42);
9. Entries in official records (Sec. 44);
10. Commercial lists and the like (Sec. 45);
11. Learned treatises (Sec. 46);
Note: Items 1 to 5 requires death or unavailability of declarant.
It is not correct to say that the exceptions to the hearsay rule are
not hearsay. They are hearsay evidence but they are deemed
admissible by reason of necessity and trustworthiness.
Q: What are the reasons for the admissibility of these
exceptions?
A: They are admissible by reason of relevancy, necessity
and trustworthiness. (Estrada vs. Desierto, G.R. No. 146710-
15, April 3, 2001)
DYING DECLARATION
Q: Define dying declaration
A: These are ante mortem statements made by a person
after the mortal wound has been inflicted under the belief
that the death is certain, stating the fact concerning the
cause of and the circumstances surrounding the attack.
Note: Where the elements of both a dying declaration and a
statement as part of the res gestae are present, the statement may
be admitted as a dying declaration and at the same time as part of
res gestae (People vs. Gado, 298 SCRA 466).
Q: What are the reasons for its admissibility?
A: Necessity and trustworthiness. Necessity, because the
declarants death renders it impossible his taking the
witness stand, and it often happens that there is no other
414
 EVIDENCE
equally satisfactory proof of the crime; allowing it prevents
a failure of justice.
Trustworthiness, because the declaration is made in
extremity, when the party is at the point of death and when
every motive to falsehood is silenced and the mind is
induced by the most powerful considerations to speak the
truth. (Evidence, the bar lecture Series, Riano p. 363)
(People v. Cerilla)
Q: What are the requisites for a dying declaration to be
considered as an exception to the hearsay rule?
A:
1. The declaration is one made by a dying person;
2. The declaration was made by said dying person under
a consciousness of his impending death;
3. The declaration refers to the cause and circumstances
surrounding the death of the declarant and not of
anyone else;
4. The declaration is offered in a case wherein the
declarants death is the subject of the inquiry; and
5. The declarant is competent as a witness had he
survived. (Geraldo v. People, G.R. No. 173608, Nov. 20,
2008)
6. That the statement is complete in itself Doctrine of
Completeness (People vs. De Joya, G.R. No. 75028,
Nov. 8, 1991)
7. The declarant should have died (if he survives, his
declaration may be admissible as part of the res
gestae).
Q: Is it necessary that the declarant immediately dies after
making the declaration?
A: No. The intervening time from the making of a dying
declaration up to the time of death is immaterial in its
admissibility, as long as it was made under the
consciousness of death.
XPN: If there is retraction made by the declarant before he
died or his declaration is ambiguous. However, the interval
of time between the declaration and the death of the
declarant may be taken into account where the declaration
is ambiguous as to whether the declarant believed that his
death was imminent when he made such declaration.
Q: What factors should be considered in determining
whether the declarant is conscious of his impending
death?
A:
1. Utterances;
2. Actual character and seriousness of his wounds; and
3. By the declarants conduct and the circumstances at
the time he made the declaration, whether he
expected to survive his injury (Regalado, Remedial Law
Compendium, Vol. II, p. 779, 2008 ed.).
Q: Sam was charged with robbery and homicide. Kitchie,
the vcictim, suffered several stab wounds. It appears that
11 hours after the crime, while Kitchie was being brought
to the hospital in a jeep, with his brother and a policeman
as companions, Kitchie was asked certain questions which
she answered, pointing to Sam as her assailant. Her
answers were put down in writing, but since she was in a
critical condition, her brother and the policeman signed
the statement. Is the statement admissible as a dying
declaration? Explain. (1999 Bar Question)
A: Yes. The statement is admissible as a dying declaration if
the victim subsequently died and her answers were made
under the consciousness of an impending death. The fact
that she did not sign the statement pointing to the accused
as her assailant because she was in a critical condition does
not affect its admissibility as a dying declaration. (People v.
Viovicente, G.R. No. 118707, Feb. 2, 1998).
Note: A dying declaration may be oral or written. If oral, the
witness who heard it may testify thereto without the necessity of
reproducing the word of the decedent, if he is able to give the
substance thereof. An unsigned dying declaration may be used as a
memorandum by the witness who took it down (People v. Boller,
G.R. Nos. 144222-24, Apr. 3, 2002).
Q: How do you assail a dying declaration?
A: The declaration may be attacked in the same manner as
one would do a testimony in open court. The declarant
himself may be impeached through the normal methods
provided for under the rules.
DECLARATION AGAINST INTEREST
Q: What are the requisites for the admissibility of
declaration against interest?
A:
1. The declarant is dead or unable to testify
Note: The inability to testify must be serious.
2. Declaration relates to a fact against the interest of the
declarant
3. At the time he made said declaration, he was aware
that the same was contrary to his interest and
4. Declarant had no motive to falsify and believed such
declaration to be true
Q: What are the reasons for its admissibility?
A: Necessity, as such declaration, act, or omission is
frequently the only mode of proof available and
trustworthiness, because of the first presumption that men
will neither falsify nor commit mistakes when such
falsehood or mistake would be prejudicial to their own
pecuniary interest, and because of the fact that any
fraudulent motive for making the statement may be shown.
Q: Alejandro Cuenca was charged with the crime of
kidnapping Hector Ocampo. One of the testimonies
presented by the prosecution was that of Maribelle
Magdayao, who testified that Hector confided to her that
he and Alejandros wife Rubi were having an affair.
Undoubtedly, his wife's infidelity was ample reason for
Alejandro to contemplate revenge. Consequently, the trial
court convicted Alejandro based on the testimonies of the
415 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

witnesses. Was the testimony of Maribelle admissible as Note: Such declarations are natural expressions of persons who
evidence? must know the truth. Although hearsay, it is best that the nature of
the case admits and because greater evil might arise from the
rejection of such proof than from its admission.
A: Yes. Hectors revelation to Maribelle regarding his illicit
relationship with Alejandros wife is admissible in evidence,
Q: What does pedigree include?
pursuant to Section 38, Rule 130 of the Revised Rules on
Evidence. With the deletion of the phrase "pecuniary or
A: It includes:
moral interest" from the present provision, it is safe to
1. Relationship;
assume that "declaration against interest" has been
2. Family genealogy;
expanded to include all kinds of interest, that is, pecuniary,
3. Birth;
proprietary, moral or even penal. Hector having been
4. Marriage;
missing since his abduction, cannot be called upon to
5. Death;
testify. His confession to Maribelle, definitely a declaration
6. Dates when and the place where these facts occurred;
against his own interest, since his affair with Rubi was a
7. Names of the relatives; and
crime, is admissible in evidence because no sane person will
8. Facts of family history intimately connected with
be presumed to tell a falsehood to his own detriment
pedigree (Sec. 39, Rule 130)
(People v. Bernal, G.R. No. 113685, June 19, 1997).
Note: The relationship between the declarant and the person
Q: Distinguish declaration against interest from admission subject of the inquiry must be legitimate unless the issue is the
against interest legitimacy itself.

A: FAMILY REPUTATION OR TRADITION REGARDING

Declaration Against Admission Against PEDIGREE
Interest Interest
Made by a person who is Made by a party to a Q: What are the requisites for the admissibility of family
neither a party nor in litigation or by one in reputation or tradition regarding pedigree?
privity with a party to privity with or
the suit is a secondary identified in legal A:
evidence interest with such 1. There is controversy in respect to the pedigree of any
party. member of the family;
Secondary evidence and Primary evidence and 2. The reputation or tradition of the pedigree of the
admissible only when admissible whether or person concerned existed previous to the controversy;
the declarant is already not the declarant is and
dead or unavailable to available as a witness. 3. The statement is about the reputation or tradition of
testify as a witness. the family in respect to the pedigree of any member of
Exception to the hearsay Covered by the the family.
rule hearsay rule 4. The witness testifying to the reputation or tradition
Must have been made May be made at any regarding pedigree of the person concerned must be a
ante litem motam, i.e. time, before or during member of the family of said person either by
before the controversy the trial. consanguinity or affinity (Sec. 40, Rule 130).
May be admitted against Used only against the
himself or successors-in- party admitting Q: What are the ways to establish family reputation or
interest and against third tradition in respect to ones pedigree?
persons
A:
ACT OR DECLARATION ABOUT PEDIGREE 1. Through testimony in open court of a witness who
must be a member of the family either by
Q: What are the requisites for the admissibility of acts or consanguinity or affinity;
declarations about pedigree? 2. Through entries in:
a. Family bible;
A: b. Family books or charts;
1. The declarant is dead or unable to testify; c. Engravings on rings; or
2. The pedigree should be in issue; d. Family portraits and the like.
3. The declarant must be a relative of the person whose
pedigree is in question, either by birth or marriage; Note: These are admissible by reason of necessity since tradition is
4. The declaration must be made ante litem motam or often the sole method by which proof of matters of pedigree can
be obtained.
before the controversy occurred; and
5. The relationship between the declarant and the
person whose pedigree is in question must be shown Q: Distinguish Sec. 39 (act or declaration about pedigree)
from Sec. 40 (family reputation regarding pedigree)
by evidence other than such act or declaration (Tecson
v. COMELEC, G.R. No. 161434, Mar. 3, 2004).
A:
Section 39 Section 40

UNIVERSITY OF SANTO TOMAS 416

2013 GOLDEN NOTES
 EVIDENCE

Act or declaration Family reputation or a. The supposition that the public is conversant with
about pedigree tradition regarding the subject to be proved because of their
pedigree general interest therein; and
Act or declaration Family reputation or b. The fact that the falsity or error of such evidence
about pedigree tradition regarding could be exposed or corrected by other
pedigree testimony since the public are interested in the
Witness need not be a Witness is a member of same (Francisco, pp. 296-297, 1992 ed.).
member of the family the family
Relation of the The witness is the one Q: What can be established by Common reputation?
declarant and the to whom the fact
person subject of the relates, it is not A:
inquiry must be necessary for him to 1. Matters of public and general interest more than 30
established by establish by years old;
independent evidence independent evidence 2. Matters respecting marriage or moral character and
his relationship to the related facts; and
family (Francisco, p. 3. Individual moral character.
292, 1992 ed.)
Testimony is about Testimony is about Note: Marriage, if not proven through an act or declaration about
what the declarant has family reputation or pedigree may be proven through common reputation (Trinidad v.
CA, G.R. 118904).
said concerning the tradition covering
pedigree of the family matters of pedigree
Q: What is the difference between matters of public
interest and matters of general interest?
COMMON REPUTATION
A: Matters of public interest involve those which are
Q: What is common reputation?
common to all citizen of the state or to the entire people
while matters of general interest involve those which are
A: It is the definite opinion of the community in which the
common only to a single community or to a considerable
fact to be proved is known or exists. It means the general or
number of persons forming part of the community.
substantially undivided reputation, as distinguished from a
partial or qualified one, although it need not be unanimous.
PART OF RES GESTAE
(Regalado, Vol. II, p. 787, 2008 ed)
Q: What is the meaning of res gestae?
Note: As a general rule, the reputation of a person should
be that existing in the place of his residence; it may also be
A: It is a Latin phrase which literally means "things done."
that existing in the place where he is best known (Ibid.).
As an exception to the hearsay rule, it refers to those
Character is what a man is, and reputation is what he is
exclamations and statements by either the participants,
supposed to be in what people say he is (Lim vs. CA, 214
victims, or spectators to a crime immediately before, during
SCRA 273).
or immediately after the commission of the crime, when
the circumstances are such that the statements were made
Q: What are the requisites for the admissibility of
as spontaneous reactions or utterances inspired by the
common reputation?
excitement of the occasion, and there was no opportunity
for the declarant to deliberate and fabricate a false
A:
statement (Capila v. People, G.R. No. 146161, July 17,
1. The facts must be of public or general interest and
2006).
more than 30 years old;
2. The common reputation must have been ancient, i.e.
Q: What are the requisites for the admission of evidence
30 years old;
of part of res gestae?
3. The reputation must have been one formed among a
class of persons who were in a position to have some
A:
sources of information and to contribute intelligently
1. That the principal act, the res gestae, be a startling
to the formation of the opinion; and
occurrence;
4. The common reputation must have been existing
2. That the statements were made before the declarant
previous to the controversy.
had time to contrive or devise; and
3. That the statements must concern the occurrence in
Q: What are the reasons for the admissibility of common
question and its immediately attending circumstances
reputation?
(Sec. 42, Rule 130; People vs. Balbas, 122 SCRA 859).
A: Note: The test for the admissibility of evidence as part of the res
1. Necessity arising from the inherent difficulty of gestae is whether the act, declaration, or exclamation is so
obtaining any other evidence than that in the nature intimately interwoven or connected with the principal fact or event
of common reputation; and that it characterizes as to be regarded a part of the principal fact or
2. Trustworthiness of the evidence arising from: event itself, and also whether it clearly negates any premeditation

417 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

or purpose to manufacture testimony (People vs. Villarico Sr., April Verbal act must be May be prior to,
4, 2011). contemporaneous with or simultaneous with, or
must accompany the subsequent to the startling
Q: Distinguish part of res gestae from dying declaration. equivocal act to be occurrence
admissible
A:
Part of Res Gestae Dying Declaration Q: What are the requisites of Spontaneous Statements?
It is the event itself A sense of impending
which speaks death takes the place of A:
an oath and the law 1. T
regards the declarant as here must be a startling occurrence;
testifying 2. T
May be made by the Can be made by the he statement must relate to the circumstances of the
killer after or during the victim only startling occurrence or that the statement must
killing or that of a third concern the occurrence in question and its immediate
person attending circumstances;
May precede, or Confined to matters 3. T
accompany or follow occurring after the he statement must be spontaneous and were made
the principal act homicidal act before the declarant had the time to contrive or devise
Justification is the Justification is the a falsehood. (Talidano v. Falcom Maritime & Allied
spontaneity of the trustworthiness, being Services, Inc., G.R. No. 172031, July 14, 2008)
statement given by the person who
was aware of his Note: The reason for the admissibility of spontaneous statements
impending death is trustworthiness and necessity, because statements are made
instinctively, and because said natural and spontaneous utterances
Q: What is the reason for the rule on part of res gestae? are more convincing than the testimony of the same person on the
stand.
A: The reason for the rule is human experience. It has been
Q: What are the requisites for the admissibility of verbal
shown that under certain external circumstances of
acts?
physical or mental shock, the state of nervous excitement
which occurs in a spectator may produce a spontaneous
A:
and sincere response to the actual sensations and
1. The principal act to be characterized must be
perceptions produced by the external shock.
equivocal;
2. The equivocal act must be material to the issue;
As the statements or utterances are made under the
3. The statement must accompany the equivocal act;
immediate and uncontrolled domination of the senses,
4. The statement gives a legal significance to the
rather than reason and reflection, such statements or
equivocal act. (Talidano v. Falcom Maritime & Allied
utterances may be taken as expressing the real belief of the
Services, Inc., G.R. No. 172031, July 14, 2008)
speaker as to the facts he just observed. The spontaneity of
the declaration is such that the declaration itself may be
Note: The reason for the admissibility of verbal acts is that the
regarded as the event speaking through the declarant motive, character and object of an act are frequently indicated by
rather than the declarant speaking for himself (Ibid.). what was said by the person engaged in the act.

Q: What are the two types of res gestae?
A:
Verbal Acts
Utterances which
accompany some act or
conduct to which it is
desired to give legal effect;
When such act has
intrinsically no definite legal
significance, or only an
ambiguous one, its legal
purport or tenor may be
ascertained by considering
the words accompanying it,
and these utterances thus
enter merely as verbal part
of the act.
The res gestae is the
equivocal act
Spontaneous Statements
Statements or exclamations
made immediately after
some exciting occasion by a
participant or spectator and
asserting the circumstances
of that occasion as it is
observed by him
The res gestae is the
startling occurrence
Q: What are the factors that should be considered in
determining whether statements offered in evidence as
part of the res gestae have been made spontaneously or
not?
A:
1. The time that has elapsed between the occurrence of
the act and transaction and the making of the
statement;
2. The place where the statement was made;
3. The condition of the declarant when he made the
statement;
4. The presence or absence of intervening occurrences
between the occurrence and the statement relative
thereto; and
5. The nature and circumstances of the statement itself
(Francisco, pp. 315-317, 1992 ed.).
Q: Sam raped Reyna. After raping Reyna, Sam fled. Reyna
then rushed to the police station and told Police Officer

UNIVERSITY OF SANTO TOMAS 418

2013 GOLDEN NOTES
 EVIDENCE

Buloy what had happened. Sam was charged with rape.
During the trial, Reyna can no longer be located. If the
prosecution presents Buloy to testify on what Reyna had
told him, would such testimony of Buloy be hearsay?
Explain. (2005 Bar Question)
the book of the Church during the course of its business (Heirs of
Conti vs. Court of Appeals, G.R. No. 118464. December 21, 1998)
Q: Is there an instance where business entries may be
admitted in evidence even when the declarant is alive?

A: No. It is part of res gestae. It is also an independently
relevant statement. Buloy testified based on his personal
knowledge; that is, he was testifying to the fact that Reyna
told him that she was raped by Sam and not to the truth of
Reynas statement (People v. Gaddi, G.R. No. 74065, Feb.
27, 1989).
A: The entries will not be admitted as an exception to the
hearsay rule, but they may nevertheless be availed of by
said entrant as a memorandum to refresh his memory
while testifying on the transactions reflected therein.
ENTRIES IN OFFICIAL RECORDS

ENTRIES IN THE COURSE OF BUSINESS or THE SHOP-BOOK Q: What is an official record?

RULE
Q: What are the requisites for the admissibility of entries
in the course of business?
A:
1. The person who made the entry must be dead or
unable to testify;
2. The entries were made at or near the time of the
transactions to which they refer;
3. The entrant was in a position to know the facts stated
in the entries;
4. The entries were made in his professional capacity or
in the performance of a duty, whether legal,
contractual, moral or religious; and
5. The entries were made in the ordinary or regular
course of business or duty (Regalado, Vol. II, pp. 791-
792, 2008 ed.)
Q: What is the reason for its admissibility?
A: Necessity and trustworthiness. What a man has actually
done and committed to writing when under obligation to
do the act, it being in the course of the business he has
undertaken, and he being dead, there seems to be no
danger in submitting to the consideration of the court.
Note: Reliability is furnished by the fact that regularly kept records
typically have a high degree of accuracy. The law does not fix any
precise moment when the entries should be made. It is sufficient if
the entry was made within a reasonable period of time so that it
may appear to have taken place while the memory of the facts was
unimpaired.
A: The original document that is legally recognized and thus
ensuring the quality of a fact when it is established. It may
be a:
1. Register;
2. Cash book; or
3. An official return or certificate (Regalado, Vol. II, p.
793, 2008 ed.).
Q: What are the requisites for the admissibility of entries
in official records?
A:
1. Entries were made by a public officer in the
performance of his duties or by a person in the
performance of a duty especially enjoined by law;
2. Entrant had personal knowledge of the facts stated by
him or such facts were acquired by him from reports
made by persons under a legal duty to submit the
same; and
3. Such entries were duly entered in a regular manner in
the official records (Ibid.).
Q: Should entries in the police blotter be given probative
value?
A: No, as they are not conclusive evidence of the truth of
the contents but merely of the fact that they were recorded
(People v. Cabrera, Jr., G.R. No. 138266, Apr. 30, 2003).

Q: How is regularity of the entries proved?

A: It may be proved by the form in which they appear as

entries in the books/ledgers. There is no need to present
Q: Distinguish entries in official record from entries in the
for testimony the clerk who manually made the entries. The
course of business
person who supervised such clerk is competent to testify
that:
A:
1. The account was prepared under his supervision; and
Entries in Official Entries in the Course of
2. That the entries were regularly entered in the ordinary
Record Business
course of business (Regalado, Remedial Law
The entrant, if a private It is sufficient that the
Compendium Vol. II, p. 792, 2008 ed)
individual, must have entrant made the
Note: Baptismal certificates are admissible as entries in the
acted pursuant to a entries pursuant to a
ordinary course of business, even absent the testimony of the specific legal duty duty be it legal,
officiating priest or official recorder because it is one of its specially enjoined by contractual, moral or
transactions in the exercise of ecclesiastical duties and recorded in law. religious.

419 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

Entrant need not be Entrant must be dead the same parties or those representing the same
dead or unable to or unable to testify. interests;
testify 3. Former case involved the same subject as that in the
Need not be Needs authentication present case, although on different causes of action;
authenticated 4. Issue testified to by the witness in the former trial is
Exception to the best Best evidence rule the same issue involved in the present case; and
evidence rule applies 5. Adverse party had an opportunity to cross-examine
(irremovability of the witness in the former case (Regalado, Remedial
public records) Law Compendium, Vol. II, p. 797, 2008 ed.).

COMMERCIAL LISTS AND THE LIKE Q: What are the grounds, aside from death, which make a
witness unable to testify in a subsequent case?
Q: What are the requisites for the admissibility of
commercial lists and the like? A:
1. Insanity or mental incapacity or the former witness
A: loss of memory through old age or disease;
1. Statements of matters of interest to persons engaged 2. Physical disability by reason of sickness or advanced
in an occupation; age;
2. Statements must be contained in a list, register, 3. The fact that the witness has been kept away by
periodical, or other published compilation; contrivance of the opposite party; or
3. Compilation is published for use by persons engaged in 4. The fact that after diligent search the former witness
that occupation; and cannot be found (Francisco, p. 342, 1992 ed.).
4. Such is generally relied upon by them.
Q: How may former testimony be proved in the
Q: What are the examples of commercial lists and the subsequent action?
like?
A:
A: 1. If reduced to writing, such writing is the primary
1. Trade journals reporting current prices and other evidence thereof and should be used;
market data; 2. The stenographic notes or a copy thereof.
2. Mortality tables compiled for life insurance;
3. Abstracts of title compiled by reputable title examining Note: The judges notes are not evidence of what the witness said,
institutions or individuals; or and, as a rule, they can be used only to refresh the memory of a
witness.
4. Business directories, animal pedigree registers, and
the like (Francisco, p. 339, 1992 ed.).
OPINION RULE
LEARNED TREATIES
Q: What is an opinion?
Q: When are learned treatises admissible?
A: A person's thought, belief, or inference, especially a
witness's view about facts in dispute, as opposed to
A:
personal knowledge of the facts themselves (Blacks Law
1. When the court can take judicial notice of them; or th
Dictionary, 8 ed., 2004).
2. When an expert witness testifies that the author of
such is recognized as expert in that profession (Sec. 46,
Q: What is the rule on the admissibility of opinion as
Rule 130).
evidence?
Q: What are the examples of learned treatises?
A: GR: The opinion of a witness is not admissible. The
witness must testify to facts within their knowledge and
A:
may not state their opinion, even on their cross-
1. Historical works;
examination.
2. Scientific treatises; or
3. Law (Francisco, pp. 340-341, 1992 ed.).
XPNs:
1. Opinion of expert witness
TESTIMONY OR DEPOSITION AT A FORMER TRIAL
2. Opinion of ordinary witnesses
Q: What are the requisites for the admissibility of
Note: Opinion testimony involving questions of law or the ultimate
testimony or deposition at a former proceeding? fact in issue is not admissible.

A: Q: Distinguish hearsay evidence and opinion evidence.

1. Witness whose testimony is offered in evidence is (2004 Bar Question)
dead or unable to testify;
2. The testimony or deposition was given in a former A:
case or proceeding, judicial or administrative, between

UNIVERSITY OF SANTO TOMAS 420

2013 GOLDEN NOTES
 EVIDENCE
Hearsay Evidence Opinion Evidence
Consists of testimony Expert evidence based on
that is not based on the personal knowledge,
personal knowledge skill, experience or training
of the person of the person testifying
testifying and evidence of an
ordinary witness on
limited matters.
OPINION OF EXPERT WITNESS
Q: What is the rule on the opinion of an expert witness?
A: The opinion of a witness on a matter requiring special
knowledge, skill, experience or training which he shown to
posses, may be received in evidence (Sec. 49, Rule 130).
Note: The use of the word may, signifies that the use of opinion of
expert witness is permissive and not mandatory on the part of the
courts. It only assists the court in the determination of the issue
before it, and is for the court to adopt or not to adopt depending
on its appreciation of the attendant facts and the applicable law
(Tabao vs. People, July 20, 2011).
Q: Who is an expert witness?
A: He is one who belongs to the profession or calling to
which the subject matter of the inquiry relates and who
possesses special knowledge on questions on which he
proposes special knowledge to express an opinion
(Regalado, Vol. II, p. 802, 2008 ed.). Before one may be
allowed to testify as an expert witness, his qualification
must first be established by the party presenting him, i.e.,
he must be shown to possess the special skill or knowledge
relevant to the question to which he is to express an
opinion (People vs. Fundano, 291 SCRA 356). Expert
testimony is not admissible as to a matter not in issue.
Q: Is there a definite standard of determining the degree
of skill or knowledge that a witness must possess in order
to testify as an expert?
A: None. It is sufficient that the following factors are
present:
1. Training and education
2. Particularity, first-hand familiarity with the facts of the
case
3. Presentation of authorities or standards upon which
his opinion is based (People v. Abriol, G.R. No. 123137,
Oct. 17, 2001).
Note: An expert witness may base his opinion either on the first-
hand knowledge of the facts or on the basis of hypothetical
questions where the facts are presented to him hypothetically and
on the assumption that they are true, formulates his opinion on
such hypothesis.
The probative force of the testimony of an expert does not lie in a
mere statement of his theory or opinion, but rather in the aid that
he can render to the courts in showing the facts which serve as a
basis for his criterion and the reasons upon which the logic of his
conclusion is founded. (Dizon v. Tuazon, G.R. No. 172167, July 9,
2008)
Q: What is expert evidence?
421
A: It is the testimony of a person (expert witness)
possessing knowledge not usually acquired by other
persons in a particular subject matter.
Note: It is admissible when the matter to be established requires
expertise and the witness have been qualified as an expert.
Q: What is the test in determining whether there is a need
to resort to expert evidence?
A: The test is whether the opinion called for will aid the
court in resolving an issue.
Q: In a case where the issue involves forgery, two expert
witness were presented by the plaintiff, the NBI official
and a handwriting expert from the PNP. The NBI official
testified that the signatures in the deed of sale and the
other sample signatures are the same. However, the PNP
handwriting expert declared that the person who signed
are not the same person. The lower court gave credit and
based the ruling on the testimony of the PNP handwriting
expert on the fact that the said witness has better
credentials than the NBI witness. Is the ruling valid,
because of the fact that the court based the ruling on the
credentials?
A: While credentials of an expert witness play a factor in
the evidentiary and persuasive weight of his testimony, the
same cannot be the sole factor in determining its value. The
judge must conduct his own independent examination of
the signatures under scrutiny (Tamani et al vs. Roman
Salvador and Filomena Bravo, G.R. No. 171497, April 4,
2011).
OPINION OF ORDINARY WITNESS
Q: What is the rule on the admissibility of opinion of an
ordinary witness as evidence?
A: The opinion of a witness for which proper basis is given,
may be received in evidence regarding:
1. The identity of a person about whom he has
adequate knowledge;
2. A handwriting with which he has sufficient
familiarity;
3. The mental sanity of a person with whom he is
sufficiently acquainted; and
4. The witness impressions of the emotion,
behavior, condition or appearance of a person
(Sec. 50, Rule 130).
CHARACTER EVIDENCE
Q: Define Character
A: Character is the aggregate of the moral qualities which
belong to and distinguish an individual person; the general
result of ones distinguishing attributes (Blacks Law
nd
Dictionary, 2 ed.).
Q: What is the rule on the admissibility of character in
evidence?
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

A:
A: As a general rule, character evidence is not admissible in 1. Cross-examination
evidence, subject to certain exceptions in criminal cases, 2. Independent evidence of bad character
civil cases and in case the character of a witness has been Note: Personal opinion as to the moral character of the accused
previously impeached. and the specific conduct of the part exhibiting character is
excluded as evidence. However, reputation in the community is
Note: The reason for this is that the evidence of a persons admissible.
character does not prove that such person acted in conformity with
such character or trait in a particular occasion. Q: When can the proponent of a witness impeach his own
witness?
CRIMINAL CASES
A:
Q: In criminal cases, is there an exception to the rule that 1. When the witness is the adverse party himself
character evidence is not admissible in evidence?
2. When the witness turned hostile. (Proponent must ask
A: Yes. the court that he would treat the proponent as hostile)
As to the As to the As to the
Accused Prosecution Offended Party Q: What are the requirements provided by the rules with
He may prove his They may not His good or bad respect to the nature or substance of the character
good moral prove the bad moral character evidence which may be admissible?
character which moral character may be proved as
is pertinent to of the accused long as it tends to A:
the moral trait which is pertinent establish in any 1. With respect to the accused, such character evidence
involved in the to the moral trait reasonable must be pertinent to the moral trait involved in the
offense charged involved in the degree the offense charged.
offense charged, probability or 2. With respect to the offended person, it is sufficient
unless in rebuttal improbability of that such character evidence may establish in any
when the accused the offense reasonable degree the probability or improbability of
opens the issue charged the offense charged.
by introducing 3. With respect to the witness, such character evidence
evidence of his must refer to his general reputation for truth,
good moral honesty or integrity, that is affecting his credibility
character (Regalado, Remedial Law Compendium, Vol. II, p. 814,
2008 ed.)
Note: In criminal cases, character evidence is inadmissible under
the following situations: Q: Don was prosecuted for homicide for allegedly beating
up Vilma to death with an iron pipe. May the prosecution
1. In rebuttal, proof of the bad character of the victim is not introduce evidence that Vilma had a good reputation for
admissible if the crime was committed through treachery and peacefulness and non-violence? Why? (2002 Bar Question)
premeditation; and
2. In rape cases, the evidence of complainants past sexual A: The prosecution may introduce evidence of the good or
conduct, or reputation or opinion thereof shall not be
even bad moral character of the victim if it tends to
admitted unless and only to the extent that the court finds
that such evidence is material and relevant to the case (Rape establish in any reasonable degree the probability or
shield or Sexual Abuse Shield, Sec. 6, R.A. 8505). improbability of the offense charged. In this case, the
evidence is not relevant.

CIVIL CASES RULE ON EXAMINATION OF A CHILD WITNESS (A.M. No.

004-07-SC)
Q: In civil cases, when can character evidence be
admissible? APPLICABILITY OF THE RULE

A: The moral character of either party thereto cannot be
proved unless it is pertinent to the issue of character
involved in the case (Sec. 51).
Note: Evidence of good moral character of a witness whether in a
civil or criminal case is not admissible, unless such character has
been impeached (Sec. 14, Rule 132).
Q: How can one prove bad character?
Q: In what cases is the Rule on Examination of a Child
Witness applicable?
A: It shall apply in all criminal and non-criminal proceedings
involving child witnesses. This Rule shall govern the
examination of child witnesses who are victims of crime,
accused of a crime, and witnesses of a crime (Sec. 1).
Q: When are the provisions of the Rules of Court
applicable in the examination of a child witness?

UNIVERSITY OF SANTO TOMAS 422

2013 GOLDEN NOTES
 EVIDENCE

A: The provisions of the Rules of Court on deposition,

conditional examination of witnesses, and evidence shall be A: It is determined by the totality of the circumstances and
applied in a suppletory character (Sec. 32). conditions as are most congenial to the survival, protection
and feelings of security of the child and most encouraging
MEANING OF CHILD WITNESS to his physical, psychological and emotional development.
It also means the least detrimental available alternative for
Q: Who is a child witness? safeguarding the growth and development of the child [Sec.
4(g)].
A: A child witness is any person who at the time of giving
testimony is below the age of 18 years. In child abuse COMPETENCY OF A CHILD WITNESS
cases, a child includes one over 18 years but is found by the
court as unable to fully take care of himself or protect Q: What is the rule on the competency of a child witness?
himself from abuse, neglect, cruelty, exploitation, or
discrimination because of a physical or mental disability or A: Every child is presumed qualified to be a witness.
condition [Sec. 4(a)]. However, the court shall conduct a competency
examination of a child, motu proprio or on motion of a
Q: What is the difference between a child witness and an party, when it finds that substantial doubt exists regarding
ordinary witness? the ability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or
A: appreciate the duty to tell the truth in court (Sec. 6).
Child Witness Ordinary Witness
Only the judge is Opposing counsels are Q: What are the requirements of a childs competency as a
allowed to ask allowed to ask questions witness?
questions to a child during preliminary
witness during examination A:
preliminary 1. Capacity of observation
examination 2. Capacity of recollection; and
Testimony in a Testimony in a narrative 3. Capacity of communication. (People v. Nang, 289 SCRA
narrative form is form is not allowed 16)
allowed
Leading questions are Leading questions are Note: A mere allegation that a witness is of tender age is not
allowed generally not allowed sufficient to disqualify him from sitting on the witness stand
(People vs. Santos 183 SCRA 25).
The child witness is An ordinary witness is
assisted by a support not assisted by a
Q: What is voir dire examination?
person support person
A: It is a French phrase meaning to speak the truth. It may
Q: What is an in-depth investigative interview or
refer to a preliminary examination to ascertain whether he
disclosure interview?
possesses the required qualifications, being sworn to make
true answers (State v. Fox, 149 S.E. 735, 1929).
A: It is an inquiry or proceeding conducted by duly trained
members of a multidisciplinary team or representatives of
Note: If a party against whom a witness is presented believes that
law enforcement or child protective services for the the witness is incompetent or is not aware of his obligation and
purpose of determining whether child abuse has been responsibility to tell the truth and the consequence of him
committed. [Sec. 4(i)] testifying falsely, such party may pray for leave to conduct a voire
dire examination on such witness to test his competency. The court
may also motu proprio conduct the voir dire examination. In United
States v. Buncad, the Court held that when a child of tender age is
Q: When may the court appoint a guardian ad litem for a presented as a witness, it is the duty of the judge to examine the
child to determine his competency (People v. Bisda y Gaupo, G.R.
child?
No. 140895, July 17, 2003).

A: The court may appoint a guardian ad litem for a child

Q: What must a party seeking competency examination
who is a victim of, accused of, or a witness to a crime to
present?
promote the best interests of the child. In making the
appointment, the court shall consider the background of
A: He must present proof of necessity of competency
the guardian ad litem and his familiarity with the judicial
examination. The age of the child by itself is not a sufficient
process, social service programs, and child development,
basis for a competency examination. [Sec. 6(a)]
giving preference to the parents of the child, if qualified
[Sec. 5(a)]. Note: The burden of proof lies on the party challenging the
competency of the child [Sec. 6(b)].
Note: A person who is a witness in any proceeding involving the
child cannot be appointed as a guardian ad litem (ibid).
Q: Who are the persons allowed at a competency
examination?
Q: What determines the best interests of the child?

423 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
A: Only the following are allowed at a competency
examination:
1. The judge and necessary court personnel;
2. The counsel for the parties;
3. The guardian ad litem, if any;
4. One or more support persons for the child; and
5. The defendant, unless the court determines that
competence can be fully evaluated in his absence [Sec.
6(c)].
Note: Such competency examination shall be conducted only by
the judge but the counsel for the parties can submit questions to
the judge that he may, in his discretion, ask the child [Sec. 6(d)].
Q: What are the appropriate questions to be asked to the
child during competency examination?
A: The questions to be asked are:
1. Appropriate to the age and developmental level of the
child;
2. Not related to the issues at trial; and
3. Shall focus on the ability of the child to remember,
communicate, distinguish between truth and
falsehood, and appreciate the duty to testify truthfully
[Sec. 6(e)].
Q: What is meant by developmental level?
A: It refers to the specific growth phase in which most
individuals are expected to behave and function in relation
to the advancement of their physical, socio-emotional,
cognitive, and moral abilities [Sec. 4(h)].
Q: What is the duty of the court regarding the competency
of the child?
A: It has the duty of continuously assessing the competence
of the child throughout his testimony [Sec. 6(f)].
Q: In case of a child witness, what should the court
consider in determining his competency?
A: The court must consider his capacity:
1. At the time the fact to be testified to occurred such
that he could receive correct impressions thereof;
2. To comprehend the obligation of an oath; and
3. To relate those facts truly at the time he is offered as a
witness. The court should take into account his
capacity for observation, recollection and
communication. (Regalado, Remedial Law
Compendium, Vol. II, pp. 739-740, 2008 ed.)
EXAMINATION OF A CHILD WITNESS
Q: How is an examination of a child witness conducted?
A: it shall be done in open court and unless the witness is
incapacitated to speak or the question calls for different
mode of answer, the answers of the witness shall be given
orally (Sec. 8).
Q: Who is a facilitator?
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
A: He is a person appointed by the court to pose questions
to a child. [Sec. 4(c)]
Q: Who is a support person?
A: He is a person chosen by the child to accompany him to
testify at or attend a judicial proceeding or deposition to
provide emotional support for him [Sec. 4(f)]
Q: Does the testimony of child witness need
corroboration?
A: Corroboration shall not be required for the testimony of
a child. His testimony, if credible by itself, shall be sufficient
to support a finding of fact, conclusion, or judgment subject
to the standard of proof required in criminal and non-
criminal cases (Sec. 22).
Q: Budoy was charged with rape of his 10 year old
stepdaughter, Angie, to which he pleaded not guilty. For
the prosecution, it presented as witnesses the victim and
a Medico Legal Certificate issued by Dr. Luna, the results
of which showed that the victim suffered hymenal
laceration. For the defense, he vehemently denied the
charges and presented an alibi. RTC, affirmed with
modification by the CA convicted the accused. Should the
testimony of the child be given full weight and credit?
A: Testimonies of child victims are given full weight and
credit, for when a woman or a girl-child says that she has
been raped; she says in effect all that is necessary to show
that rape was indeed committed. Youth and immaturity are
generally badges of truth and sincerity (People v. Sobusa,
G.R. No. 181083, Jan. 21, 2010).
Q: When may the public be excluded from the courtroom
wherein a child testifies?
A: When a child testifies, the court may order the exclusion
from the courtroom of all persons, including members of
the press, who do not have a direct interest in the case.
Such an order may be made to protect the right to privacy
of the child or if the court determines on the record that
requiring the child to testify in open court would cause
psychological harm to him, hinder the ascertainment of
truth, or result in his inability to effectively communicate
due to embarrassment, fear, or timidity.
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS
Q: When may the court order that the testimony of the
child be taken by live-link television? Explain. (2005 Bar
Question)
A: The court may order that the testimony of the child be
taken by live-link television if there is a substantial
likelihood that the child would suffer trauma from testifying
in the presence of the accused, his counsel or the
prosecutor as the case may be. The trauma must be of a
kind which would impair the completeness or truthfulness
of the testimony of the child (Sec. 25).
424
 EVIDENCE
VIDEOTAPED DEPOSITION OF A CHILD WITNESS
Q: When may the court order that the testimony of the
child be taken by videotaped deposition?
A: If the court finds that the child will not be able to testify
in open court at trial, it shall issue an order that the
deposition of the child be taken and preserved by
videotape (Sec. 27[b]) .
Note: The rights of the accused during trial, especially the right to
counsel and to confront and cross-examine the child, shall not be
violated during the deposition (Sec. 27[d]). After the original
videotaping but before or during trial, any party may file any
motion for additional videotaping on the ground of newly
discovered evidence. The court may order an additional
videotaped deposition to receive the newly discovered evidence.
(Sec. 27[j])
Q: Who are the persons allowed to preside and be present
in the videotaped deposition?
A: The judge shall preside at the videotaped deposition of a
child. Objections to deposition testimony or evidence, or
parts thereof, and the grounds for the objection shall be
stated and shall be ruled upon at the time of the taking of
the deposition. The other persons who may be permitted to
be present at the proceeding are:
1. The prosecutor;
2. The defense counsel;
3. The guardian ad litem;
4. The accused, subject to sub-section (e);
Note: Sub-section (e) provides that if the order of the court is
based on the evidence that the child is unable to testify, the
physical presence of the accused, the court may direct the
latter to be excluded from the room in which the deposition
is conducted.
5. Other persons whose presence is determined by the
court to be necessary to the welfare and well-being of
the child;
6. One or both of his support persons, the facilitator and
interpreter, if any;
7. The court stenographer; and
8. Persons necessary to operate the videotape
equipment (Sec. 27c).
HEARSAY EXCEPTION IN CHILD ABUSE CASES
Q: Does the hearsay rule apply in child abuse cases?
A: A statement made by a child describing any act or
attempted act of child abuse, not otherwise admissible
under the hearsay rule, may be admitted in evidence in any
criminal or non-criminal proceeding subject to the following
rules:
1. Before such hearsay statement maybe admitted, its
proponent shall make known to the adverse party the
intention to offer such statement and its particulars to
provide him a fair opportunity to object.
a. If the child is available, the court shall, upon
motion of the adverse party, require the child to
be present at the presentation of the hearsay
425
statement for cross-examination by the adverse
party.
b. When the child is unavailable, the fact of such
circumstance must be proved by the proponent
(Sec. 28a).
Note: When the child witness is unavailable, his hearsay
testimony shall be admitted only if corroborated by other
admissible evidence (Sec. 28d).
2. In ruling on the admissibility of such hearsay
statement, the court shall consider the time, content
and circumstances thereof, based on various factors
provided by the law, which provide sufficient indicia of
reliability (Sec. 28b).
SEXUAL ABUSE SHIELD RULE
Q: What is sexual abuse shield rule?
A: GR: It states that the following evidence is not admissible
in any criminal proceeding involving alleged child sexual
abuse:
1. Evidence offered to prove that the alleged victim
engaged in other sexual behavior; and
2. Evidence offered to prove the sexual predisposition of
the alleged victim [Sec. 30(a)].
XPN: Evidence of specific instances of sexual behavior
by the alleged victim to prove that a person other than
the accused was the source of semen, injury, or other
physical evidence shall be admissible [Sec. 30(b)].
PROTECTIVE ORDERS
Q: What are the other measures provided under the rule
for the protection of the privacy and safety of a child
witness?
A:
1. Confidentiality of records Any record regarding a
child shall be confidential and kept under seal. The
records may be released only to the following upon
written request and order of the court:
a. Members of the court staff for administrative use;
b. The prosecuting attorney;
c. Defense counsel;
d. The guardian ad litem;
e. Agents of investigating law enforcement
agencies; and
f. Other persons as determined by the court
2. Protective order Any videotape or audiotape of a
child that is part of the court record shall be under a
protective order that provides as follows:
a. Tapes may be viewed only by parties, their
counsel, their expert witness, and the guardian
ad litem;
b. No tape, or any portion thereof, shall be divulged
by any person mentioned in sub-section (a) to any
other person, except as necessary for the trial;
c. No person shall be granted access to the tape, its
transcription or any part thereof unless he signs a
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
written affirmation that he has received and read
a copy of the protective order; that he submits to
the jurisdiction of the court with respect to the
protective order; and that in case of violation
thereof, he will be subject to the contempt power
of the court;
d. Each of the tape cassettes and transcripts thereof
made available to the parties, their counsel, and
respective agents shall bear the following
cautionary notice:
"This object or document and the contents thereof
are subject to a protective order issued by the
court in (case title), (case number). They shall not
be examined, inspected, read, viewed, or copied
by any person, or disclosed to any person, except
as provided in the protective order. No additional
copies of the tape or any of its portion shall be
made, given, sold, or shown to any person
without prior court order. Any person violating
such protective order is subject to the contempt
power of the court and other penalties prescribed
by law."
e. No tape shall be given, loaned, sold, or shown to
any person except as ordered by the court.
f. Within thirty (30) days from receipt, all copies of
the tape and any transcripts thereof shall be
returned to the clerk of court for safekeeping
unless the period is extended by the court on
motion of a party.
g. This protective order shall remain in full force and
effect until further order of the court. [Sec. 31(b)].
3. Additional protective orders The court may, motu
proprio or on motion of any party, the child, his
parents, legal guardian, or the guardian ad litem, issue
additional orders to protect the privacy of the child
[Sec. 31(c)].
4. Publication of identity contemptuous:
Whoever publishes or causes to be published in any format
the name, address, telephone number, school, or other
identifying information of a child who is or is alleged to be a
victim or accused of a crime or a witness thereof, or an
immediate family of the child shall be liable to the
contempt power of the court (Sec. 31[d]).
5. Physical safety of child; exclusion of evidence A child
has a right at any court proceeding not to testify
regarding personal identifying information, including
his name, address, telephone number, school, and
other information that could endanger his physical
safety or his family.
XPN: The court may, however, require the child to
testify regarding personal identifying information in
the interest of justice [Sec. 31(e)].
6. Destruction of videotapes and audiotapes Videotapes
and audiotapes produced under the provisions of this
Rule or otherwise made part of the court record shall
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
be destroyed after 5 years have elapsed from the date
of entry of judgment [Sec. 31(f)].
7. Records of youthful offender: confidential
a. Where he has been charged before any
prosecutor or before any municipal judge and the
charges have been ordered dropped, all the
records of the case shall be considered as
privileged and may not be disclosed directly or
indirectly to anyone for any purpose whatsoever.
b. Where he has been charged and the court acquits
him, or dismisses the case or commits him to an
institution and subsequently releases him, all the
records of his case shall also be considered as
privileged and may not be disclosed except:
i. To determine if a defendant may have his
sentence suspended under Art. 192 of P.D.
603 or if he may be granted probation
under the provisions of P.D. 968; or
ii. To enforce his civil liability, if said liability
has been imposed in the criminal action
8. The youthful offender concerned shall not be held
under any provision of law to be guilty of perjury or of
concealment or misrepresentation by reason of his
failure to acknowledge the case or recite any fact
related thereto in response to any inquiry made to him
for any purpose [Sec. 31(g)].
OFFER AND OBJECTION
Q: What evidence shall be considered by the court?
A: GR: The court shall consider only the evidence which has
been formally offered. The purpose for which the evidence
is offered must be specified (Sec. 34).
XPNs:
1. Marked exhibits not formally offered may be
admitted provided it complies with the following
requisites:
a. must be duly identified by testimony duly
recorded; and
b. must have been incorporated in the records
of the case (Ramos v. Dizon, G.R. No.
137247, Aug. 6, 2006);
2. Under the Rule on Summary Procedure, where no
full blown trial is held in the interest of speedy
administration of justice;
3. In summary judgments under Rule 35 where the
judge based his decisions on the pleadings,
depositions, admissions, affidavits and
documents filed with the court;
4. Documents whose contents are taken judicial
notice of by the court;
5. Documents whose contents are judicially
admitted; or
6. Object evidence which could not be formally
offered because they have disappeared or have
become lost after they have been marked,
identified and testified on and described in the
record and became the subject of cross-
examination of the witness who testified on them
426
 EVIDENCE
during the trial (Tabuena vs. CA, 196 SCRA 650;
People vs. Napat-a, 179 SCRA 403)
7. Documents and affidavits used in deciding quasi-
judicial or administrative cases (Bantolino vs.
Coca-Cola Bottlers Inc., 403 SCRA 699).
Q: During the pre-trial of a civil case, the parties presented
their respective documentary evidence. Among the
documents marked by the plaintiff Rina was the Deed of
Absolute Sale of the property in litigation (Exh. "C"). In the
course of the trial on the merits, Exh. "C was identified by
Rina, who was cross-examined thereon by Rey's counsel;
furthermore, the contents of Exh. "C" were read into the
records by Rina. However, Exh. "C" was not among those
formally offered in evidence by her. May the trial court
consider Exh. "C" in the determination of the action?
Why? (1993 Bar Question)
A: Yes, because not only was the Deed of Absolute Sale
marked, identified and Rina was cross-examined by Reys
counsel. Furthermore, the contents of Exh. "C" were read
into the records. Hence, the trial court could properly
consider Exh. "C" in the determination of the action even
though it was not formally offered in evidence. This is an
exception to the rule that the court shall consider no
evidence which has not been formally offered. (Sec. 35)
OFFER OF EVIDENCE
Q: What are the purposes of offer of evidence?
A:
1. To notify the party of possible objection, and for the
offeror to make necessary correction at the trial level
to meet the objection;
2. To allow the trial judge to rule properly;
3. To lay basis for appeal so that the appellate court can
decide intelligently.
Note: A formal offer is necessary, since judges are required to base
their findings of fact and their judgment solely and strictly upon the
evidence offered by the parties at the trial.
To allow parties to attach any documents to their pleadings and
then expect the court to consider it as evidence, even without
formal offer and admission, may draw unwarranted consequences.
Opposing parties will be deprived of their chance to examine the
document and to object to its admissibility. On the other hand, the
appellate court will have difficulty reviewing the documents not
previously scrutinized by the court below. (Candido v. Court of
Appeals, G.R. No. 107493, February 1, 1996)
Q: What are the rationales in stating the purpose for
which the evidence is being offered?
A:
1. For the court to determine whether that piece of
evidence should be admitted or not;
2. Evidence submitted for one purpose may not be
considered for any other purpose; and
3. For the adverse party to interpose the proper
objection.
427
Note: It is basic in the law of evidence that the court shall consider
evidence solely for the purpose for which it was offered. (Ragudo
vs. Fabella Estate Tenants Asso. Inc., 466 SCRA 136)
Q: Gizel filed a complaint for recovery of possession and
damages against Fara. In the course of the trial, Gizel
marked his evidence but his counsel failed to file a formal
offer of evidence. Fara then presented in evidence tax
declarations in the name of his father to establish that his
father is a co-owner of the property. The court ruled in
favor of Fara, saying that Gizel failed to prove sole
ownership of the property in the face of Faras evidence.
Was the court correct? Explain briefly. (2007 Bar Question)
A: Yes. The court shall consider no evidence which has not
been formally offered. The trial court rendered judgment
considering only the evidence offered by Fara. The offer is
necessary because it is the duty of the judge to rest his
findings of fact and his judgment only and strictly upon the
evidence offered by the parties at the trial. (People v.
Pecardal, G.R. No. 71381, Nov. 24, 1986)
Q: Eidene sued ABC, a shipping company, based on a
contract of carriage contained in a bill of lading. The bill of
lading, an actionable document, was pleaded and
attached to the complaint. ABC, without alleging anything
else, merely assailed the validity of the agreement in the
bill of lading for being contrary to public policy. After
presenting evidence, Eidene did not formally offer for the
bill of ladings admission. The court ruled for Eidene. On
motion for reconsideration, ABC alleged that Eidene failed
to prove his action as the bill of lading was not formally
offered. Decide. (1996 Bar Question)
A: The motion for reconsideration should be denied. There
was no need to formally offer for admission the bill of
lading, because the failure of ABC to deny under oath the
genuineness and due execution of the bill of lading which
was an actionable document constituted an admission
thereof.
Q: Aiza and Matet were charged with murder. Upon
application of the prosecution, Matet was discharged from
the Information to be utilized as a State witness. The
prosecutor presented Matet as witness but forgot to state
the purpose of his testimony much less offer it in
evidence. Matet testified that she and Aiza conspired to
kill the victim but it was Aiza who actually shot the victim.
The testimony of Matet was the only material evidence
establishing the guilt of Aiza. Matet was thoroughly cross-
examined by the defense counsel. After the prosecution
rested its case, the defense filed a motion for demurrer to
evidence based on the following grounds:
1. The testimony of Matet should be excluded because
its purpose was not initially stated and it was not
formally offered in evidence; and
2. Matet's testimony is not admissible against Aiza
pursuant to the rule on "res inter alios acta".(2003
Bar Question)
Rule on the motion for demurrer to evidence on the above
grounds.
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW

A:
1. The demurrer to evidence should be denied because
the defense counsel did not object to her testimony
despite the fact that the prosecutor forgot to state its
purpose and offer it in evidence. Moreover, the
defense counsel thoroughly cross-examined Matet and
thus waived the objection.

2. The res inter alios acta rule does not apply because
Matet testified in open court and was subjected to
cross-examination.

WHEN TO MAKE OFFER

Q: When should a party make the offer of evidence?

A:
Testimonial Evidence
Q: What are the stages in the presentation of Offer must be made at
documentary evidence? the time the witness is
called to testify.
A:
Every time a new witness
is called to testify, there
must be an offer of
evidence
Documentary and
Object Evidence
Must be made after
the presentation of
partys testimonial
evidence, and before
resting his case.
The evidence is only
offered once, after all
the testimonial
evidence are offered
and prior to the resting
of the case for a party.

Note: The presentation of

a documentary or object
evidence for marking and
identification during the

UNIVERSITY OF SANTO TOMAS 428

2013 GOLDEN NOTES
 EVIDENCE

course of trial is not the

offer contemplated in the A: It requires that a specific and timely objection be made
rules (Riano, Evidence, to the admission of evidence. Objections to the admission
2009 ed.)
of evidence must be made seasonably, at the time it is
introduced or offered, otherwise they are deemed waived,
Note: The offer shall be done orally unless allowed by the court to
and will not be entertained for the first time on appeal
be in writing (Sec. 35, Rule 132)
(People vs. Banares, 145 SCRA 680).
OBJECTION
Q: What is the difference between a "broadside" objec-
tion and a specific objection to the admission of
Q: What are the ways of impeaching the evidence of the
documentary evidence? (1994 Bar Question)
proponent?
A: A broadside objection is a general objection such as
A:
incompetent, irrelevant and immaterial and does not
1. By objection and without objection, the objection is
specify any ground; while a specific objection is limited to a
waived and the evidence is admitted. (Sec. 36 Rule
particular ground.
132)
2. By motion to strike. (Sec. 39 Rule 132)
Q: What are the two kinds of objections? Give an example
of each (1997 Bar Question).
Q: What are the purposes of objections?
A:
A:
1. Irrelevant The evidence being presented is not
1. To keep out inadmissible evidence that would cause
relevant to the issue (e.g. when the prosecution offers
harm to a clients cause;
as evidence the alleged offer of an insurance company
2. To protect the record, i.e. to present the issue of
to pay for the damages suffered by the victim in a
inadmissibility of the offered evidence in a way that if
homicide case); and
the trial court rules erroneously, the error can be
2. Incompetent The evidence is excluded by law or rules
relied upon as a ground for a future appeal;
(Sec. 3, Rule 138) (e.g. evidence obtained in violation
3. To protect a witness from being embarrassed on the
of the Constitutional prohibition against unreasonable
stand or from being harassed by the adverse counsel;
searches and seizures).
4. To expose the adversarys unfair tactics like his
consistently asking obviously leading questions; and
Alternative Answers:
5. To give the trial court an opportunity to correct its
1. Specific objections e.g. parol evidence and best
own errors and at the same time warn the court that a
evidence rule.
ruling adverse to the objector may supply a reason to
2. General objections e.g. continuing objections (Sec.
invoke a higher courts appellate jurisdiction (Riano,
37).
Evidence: A Restatement for the Bar, p. 462, 2009 ed.)
a. objection to a question propounded in the
6. To avoid a waiver of the inadmissibility of an otherwise
course of the oral examination of the
inadmissible evidence.
witness; and
b. objection to an offer of evidence in writing
Q: When should an objection be made?
Note: Objections to admissibility of evidence cannot be raised for
A: Objection to evidence offered orally must be made the first time on appeal. When a party desires the court to reject
immediately after the offer is made. Objection to a question the evidence offered he must so state in the form of objection.
propounded in the course of the oral examination of a Without objection he cannot raise the question for the first time on
witness shall be made as soon as the grounds therefore appeal. (People vs. Salak, March 14, 2011)
shall become reasonably apparent. An offer of evidence in
writing shall be objected to within 3 days after notice of the REPETITION OF AN OBJECTION
offer unless a different period is allowed by the court. In
any case, the grounds for objection must be specified (Sec. Q: What is the rule on continuing objections?
36).
A: GR: When it becomes reasonably apparent in the course
Testimonial Evidence Documentary and of the examination that the questions asked are of the
Object Evidence same class as those to which objection has been made
st
1 : When the offer was made; When the document is (whether sustained or overruled), it shall not be necessary
nd
2 : When an objectionable offered in evidence. to repeat the objection, it being sufficient for the adverse
question is asked of the witness. party to record his continuing objection to such class of
questions (Sec. 37, Rule 132).
Note: As a rule, failure to specify the grounds for the objection is in
effect a waiver of the objection, except where the evidence could XPNs:
not have been legally admitted for any purpose whatsoever. 1. Where the question has not been answered, it is
necessary to repeat the objection when the
Q: What does the Contemporaneous Objection Rule
require?

429 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
evidence is again offered or the question is again
asked;
2. Incompetency is shown later;
3. Where objection refers to preliminary question,
objection must be repeated when the same
question is again asked during the introduction of
actual evidence;
4. Objection to evidence was sustained but
reoffered at a later stage of the trial;
5. Evidence is admitted on condition that its
competency or relevance be shown by further
evidence and the condition is not fulfilled, the
objection formerly interposed must be repeated
or a motion to strike out the evidence must be
made; and
6. Where the court reserves the ruling on objection,
the objecting party must request a ruling or
repeat the objection.
RULING
Q: When should the court make its ruling on the
objection?
A: It must be given immediately after the objection is made,
unless the court desires to take a reasonable time to inform
itself on the question presented; but the ruling shall always
be made during the trial and at such time as will give the
party against whom it is made an opportunity to meet the
situation presented by the ruling (Sec. 38, Rule 132).
STRIKING OUT OF AN ANSWER
Q: What are the modes of excluding inadmissible
evidence?
A:
1. Objection when the evidence is offered.
Note: Objections may be waived because the right to object
is merely a privilege which the party may waive. (People v.
Martin, G.R. No. 172069, Jan. 30, 2008) However, such waiver
only extends to the admissibility of the evidence. It does not
involve an admission that the evidence possesses the weight
attributed to it by the offering party (Riano, Evidence: A
Restatement for the Bar, p. 471, 2009 ed.).
2. Motion to strike out or expunge:
a. When the witness answers prematurely before
there is reasonable opportunity for the adverse
party to object, and such objection is found to be
meritorious;
b. When the answers are incompetent, irrelevant, or
improper (Sec. 39, Rule 132);
c. When the witness becomes unavailable for cross-
examination through no fault of the cross-
examining party;
d. When the answer is unresponsive;
e. When the testimony was allowed conditionally
and the condition for its admissibility was not
fulfilled (Riano, Evidence: A Restatement for the
Bar, p. 467, 2009 ed.);
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
f. When a witness has volunteered statements in
such a way that the party has not been able to
object thereto;
g. When a witness testifies without a question being
addressed to him; or
h. When a witness testifies beyond the ruling of the
court prescribing the limits within which he may
answer.
i. Uncompleted testimonies where there is no
opportunity for the other party to cross-
examination.
Q: May a direct testimony given and allowed without a
prior formal offer be expunged from the record?
A: No. When such testimony is allowed without any
objection from the adverse party, the latter is estopped
from questioning the non-compliance with the
requirement.
TENDER OF EXCLUDED EVIDENCE
Q: What is tender of excluded evidence or offer of proof?
A: When an attorney is not allowed by the court to present
testimony which he thinks is competent, material and
necessary to prove his case, he must make an offer of
proof. This is the method properly preserving the record to
the end that the question may be saved for purposes of
review (Caraig, Revised Rules of Evidence 2004 ed., p. 337).
Note: This rule is in preparation in the filing of an appeal.
Moreover, the rule is that the offeror must preserve such excluded
evidence on his record and stating the purpose of such
preservation, i.e. knowing that it is relevant and must be admitted.
Q: How is tender of excluded evidence made?
A:
1. As to documentary or object evidence: It may have the
same attached to or made part of the record.
Note: The party should ask that evidence ruled out at
the trial be attached to the record of case in order that
same may be considered on appeal (Banez vs. CA, 59
SCRA 15).
2. As to oral evidence: It may state for the record the
name and other personal circumstances of the witness
and the substance of the proposed testimony.
Q: How is an offer of evidence made?
A:
1. Before the court has ruled on the objection, in which
case its function is to persuade the court to overrule
the objection or deny the privilege invoked;
2. After the court has sustained the objection, in which
case its function is to preserve for the appeal the
evidence excluded by the privilege invoked;
3. Where the offer of proof includes the introduction of
documents, or any of the physical evidence, the same
should be marked for identification so that they may
430
 EVIDENCE

become part of the record (Herrera, Vol. VI, p. 344). Note: We follow the harmless error rule, for in dealing with
evidence improperly admitted in the trial, courts examine its
Q: When is offer or proof not required? damaging quality and its impact to the substantive rights of the
litigant. If the impact is slight and insignificant, appellate courts
disregard the error as it will not overcome the weight of the
A: properly admitted evidence against the prejudiced part (People v.
1. When the question to which an objection has been Teehankee Jr. G.R. Nos. 111206-08, October 6, 1995).
sustained clearly reveals on its face the substance,
purpose and relevancy of the excluded evidence;
2. When the substance, purpose and relevancy of the
excluded evidence were made known to the court
either in the court proceedings and such parts appear
on record;
3. Where evidence is inadmissible when offered and
excluded, but thereafter becomes admissible, it must
be re-offered, unless the court indicates that a second
offer would be useless (Herrera, Vol. VI, p. 344-345).

Q: What are the purposes of tender of excluded evidence?

A:
1. To allow the court to know the nature of the
testimony or the documentary evidence and convince
the trial judge to permit the evidence or testimony;
and
2. To create and preserve a record for appeal, should the
judge be not persuaded to reverse his earlier ruling
(Riano, Evidence: A Restatement for the Bar, p. 477,
2009 ed.).

Q: Distinguish offer of proof from offer of evidence.

A:
Offer of
Proof/Tender of Offer of Evidence
Excluded Evidence
Refers to testimonial,
documentary or object
Only resorted to if evidence that are
admission is refused presented or offered in
by the court for court by a party so that
purposes of review the court can consider his
on appeal evidence when it comes to
the preparation of the
decision

Q: Distinguish English Exchequer rule from harmless error

rule.

A:
English Exchequer
Harmless Error Rule
Rule
The apellate court will
It provides that a trial
disregard an error
court's error as to the
committed by the trial
admission of evidence
court in the admission of
was presumed to have
evidence unless in its
caused prejudice and
opinion, some
therefore, almost
substantial wrong or
automatically required
miscarriage of justice has
new trial.
been occasioned.

431 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW

UNIVERSITY OF SANTO TOMAS 432

2013 GOLDEN NOTES
 REVISED RULES ON SUMMARY PROCEDURE
REVISED RULES ON SUMMARY PROCEDURE
CASES COVERED BY THE RULE
Q: In what cases do the Revised Rules on Summary
Procedure apply?
A:
1. Civil cases:
1. All cases of forcible entry and unlawful detainer,
irrespective of amount of damages or unpaid
rentals sought to be recovered provided when
attorneys fees are awarded, the same shall not
exceed P20,000.00; and
2. All other civil cases, except probate proceedings,
where the total amount of the plaintiffs claim
does not exceed P100,000 or P200,000 in
Metropolitan Manila, exclusive of interest and
costs (As amended by A.M. No. 02-11-09-SC
effective Nov. 5, 2002).
2. Criminal cases:
a. Violations of traffic laws, rules and regulations;
b. Violations of rental law;
c. Violations of municipal or city ordinances;
d. All other criminal cases where the penalty
prescribed by law for the offense charged is
imprisonment not exceeding 6 months or a fine
not exceeding P1,000.00, or both, irrespective of
other imposable penalties, accessory or
otherwise, or of the civil liability arising there
from. Provided however, that in offenses
involving damage to property through criminal
negligence, this Rule shall govern where the
imposable fine does not exceed P10,000.00; and
e. Violation of Bouncing checks law/BP 22 (Sec. 1,
Revised Rules on Summary Procedure).
Q. What are the pleadings allowed in civil cases?
A: The only pleadings allowed to be filed are the
complaints, compulsory counterclaims and cross-claims
pleaded in the answer, and the answers thereto. (Sec. 3(a),
ibid.)
Q. How is a criminal case commenced?
A: The filing of criminal cases falling within the scope of this
Rule shall be either by complaint or by information:
Provided, however, that in Metropolitan Manila and in
Chartered Cities, such cases shall be commenced only by
information, except when the offense cannot be
prosecuted de officio.
The complaint or information shall be accompanied by the
affidavits of the complainant and of his witnesses in such
number of copies as there are accused plus two (2) copies
for the court's files. If this requirement is not complied with
within five (5) days from date of filing, the case may be
dismissed (Sec. 11, ibid.).
433
Q: What are the prohibited pleadings and motions in both
civil and criminal cases?
A: The following pleadings, motions or petitions shall not be
allowed:
1. Motion to dismiss the complaint or to quash the
complaint or information except on the ground of lack
of jurisdiction over the subject matter, or failure to
refer the case to the Lupon Tagapamayapa in cases
covered by the Katarungang Pambarangay Law.
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third party complaints;
12. interventions (Sec. 19, Ibid.).
EFFECT OF FAILURE TO ANSWER
Q: What is the effect of failure of the defendant to
answer?
A: The court, motu proprio or on motion of the plaintiff,
shall render judgment as may be warranted by the facts
alleged in the complaint and limited to what is prayed for
(Sec 6, Ibid).
Note: This is without prejudice to the applicability of Sec. 4, Rule
18 of the Rules of Court, stating that the non-appearance of the
party in a pre-trial may be excused if valid cause is shown or a
representative authorized in writing appears in his behalf.
PRELIMINARY CONFERENCE AND APPEARANCES OF THE
PARTIES
Q: Is preliminary conference in civil cases mandatory?
A: Yes. Not later than 30 days after the last answer is filed,
a preliminary conference shall be held. The rules on pre-
trial in ordinary cases shall be applicable to the preliminary
conference unless inconsistent with the provisions of this
Rule (Riano, Civil Procedure: A Restatement for the Bar, pp.
778, 2005 ed.).
Q: What is the duty of the court after conducting the
preliminary conference?
A: Within five (5) days after the termination of the
preliminary conference, the court shall issue an order
stating the matters taken up therein, including but not
limited to:
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
(a) Whether the parties have arrived at an amicable
settlement, and if so, the terms thereof;

(b) The stipulations or admissions entered into by the

parties;

(c) Whether, on the basis of the pleadings and the

stipulations and admissions made by the parties, judgment
may be rendered without the need of further proceedings,
in which event the judgment shall be rendered within thirty
(30) days from issuance of the order;

(d) A clear specification of material facts which remain

controverted; and

(e) Such other matters intended to expedite the disposition

of the case (Sec. 8).

Q: What is the effect of the plaintiffs failure to appear in

the preliminary conference?

A: The failure of the plaintiff to appear in the preliminary

conference shall be a cause for the dismissal of his
complaint. The defendant who appears in the absence of
the plaintiff shall be entitled to judgment on his
counterclaim as may be warranted and limited to what is
prayed for therein. All cross claims shall be dismissed (Sec.
7, Ibid.).

Q: What is the effect of the defendants failure to appear

during the preliminary conference?

A: If a sole defendant shall fail to appear, the plaintiff shall

be entitled to judgment in accordance with Sec. 6. This Rule
shall not apply where one of two or more defendants sued
under a common cause of action who had pleaded a
common defense shall appear at the preliminary
conference (Sec. 7, Ibid.).

Q: Is preliminary conference in criminal cases mandatory?

A: Yes. Before conducting the trial, the court shall call the
parties to a preliminary conference during which a
stipulation of facts may be entered into, or the propriety of
allowing the accused to enter a plea of guilty to a lesser
offense may be considered, or such other matters may be
taken up to clarify the issues and to ensure a speedy
disposition of the case.

However, no admission by the accused shall be used

against him unless reduced in writing and signed by the
accused and his counsel. A refusal or failure to stipulate
shall not prejudice the accused (Sec. 14, Ibid.).

Note: Trial is necessary only in criminal cases covered by the Rules

on Summary Procedure. In civil cases covered by the Rule, there is
no trial involved but only the submission of the affidavits of
witnesses of the parties and other evidence on the factual issues
defined in the order, together with their position papers setting
forth the law and the facts relied upon by them which shall be
submitted within 10 days from receipt of the order issued by the
court after the preliminary conference (Sec. 9).

UNIVERSITY OF SANTO TOMAS 434

2013 GOLDEN NOTES
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
KATARUNGANG PAMBARANGAY
CASES COVERED
Q: What is The Katarungang Pambarangay Law?
A: The Katarungang Pambarangay Law provides for the
settlement of disputes between individual residents of the
same city or municipality, thru mediation, arbitration, or
conciliation, before the Katarungang Pambarangay.
Compliance therewith is a condition precedent to the filing
of a complaint or information in court or before the Fiscals
Office, and its absence is a ground for dismissal of the
complaint for prematurity or absence of a cause of action
(Albano, Remedial Law Reviewer, 2010 ed).
Q: What is the composition of Lupong Tagapamayapa?
A: It is composed of the punong barangay as chairman and
10 to 20 members (Sec. 399, RA 7160).
Q: What is the object of the Katarungang Pambarangay
Law? (1999 Bar Question)
A: Its object is to effect an amicable settlement of disputes
among family and barangay members at the barangay level
without judicial recourse and consequently help relieve the
courts of docket congestion (Preamble of P.D. 1508, the
former and the first Katarungang Pambarangay Law).
Q: What are the cases covered by the Katarungang
Pambarangay Law?
A: As a rule, cases involving the following should first be
filed before the Katarungang Pambarangay before
resorting to courts or government offices:
1. Disputes between persons actually residing in the
same barangay;
2. Those involving actual residents of different barangays
within the same city or municipality;
3. All disputes involving real property or any interest
therein where the real property or the larger portion
thereof is situated;
4. Those arising at the workplace where the contending
parties are employed or at the institution where such
parties are enrolled for study, where such workplace
or institution is located.
Note: The compulsory process of arbitration is a pre-condition for
the filing of the complaint in court. Where the complaint (a) did
not state that it is one of excepted cases, or (b) it did not allege
prior availment of said conciliation process, or (c) did not have a
certification that no conciliation had been reached by the parties,
the case should be dismissed (Agbayani v. Court of Appeals, G.R.
No. 183623, June 25, 2012).
Q: What are the exceptions to the above rule?
A:
1. Where one party is the government, or any subdivision
or instrumentality thereof;
2. Where one party is a public officer or employee, and the
dispute relates to the performance of his official functions;
3. Where the dispute involves real properties located in
different cities and municipalities, unless the parties
thereto agree to submit their difference to amicable
settlement by an appropriate Lupon;
4. Any complaint by or against corporations, partnerships or
juridical entities, since only individuals shall be parties to
Barangay conciliation proceedings either as complainants
or respondents (Sec. 1, Rule VI, Katarungang Pambarangay
Rules);
5. Disputes involving parties who actually reside in
barangays of different cities or municipalities, except where
such barangay units adjoin each other and the parties
thereto agree to submit their differences to amicable
settlement by an appropriate Lupon;
6. Offenses for which the law prescribes a maximum
penalty of imprisonment exceeding one (1) year or a fine
over five thousand pesos (P5,000.00);
7. Offenses where there is no private offended party;
8. Disputes where urgent legal action is necessary to
prevent injustice from being committed or further
continued, specifically the following:
a. Criminal cases where accused is under police
custody or detention (See Sec. 412 (b)(1), Revised
Katarungang Pambarangay Law);
b. Petitions for habeas corpus by a person illegally
deprived of his rightful custody over another or a
person illegally deprived of his liberty or one acting in
his behalf;
c. Actions coupled with provisional remedies such as
preliminary injunction, attachment, delivery of
personal property and support during the pendency of
the action; and
d. Actions which may be barred by the Statute of
Limitations.
9. Any class of disputes which the President may determine
in the interest of justice or upon the recommendation of
the Secretary of Justice;
10. Where the dispute arises from the Comprehensive
Agrarian Reform Law (CARL) (Secs. 46 & 47, R.A. 6657);
11. Labor disputes or controversies arising from
employer-employee relations (Montoya vs. Escayo, et al.,
171 SCRA 442; Art. 226, Labor Code, as amended, which
grants original and exclusive jurisdiction over conciliation
and mediation of disputes, grievances or problems to
certain offices of the Department of Labor and
Employment);
12. Actions to annul judgment upon a compromise,
which may be filed directly in court (See Sanchez vs. Tupaz,
158 SCRA 459)
(Supreme Court Administrative circular no. 14-93)
435 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Francis filed a complaint for recovery of possession of
real property against Round Corporation with the RTC.
Round Corporation moved to dismiss the complaint filed
by Francis on the ground that there had been no barangay
conciliation proceedings as required by the Katarungang
Pambarangay Law and, hence, a condition precedent for
the filing of the complaint with the courts has not been
complied with. Is Round Corporation correct? Explain.
A: No. Under Sec. 1, Rule VI of the Katarungang
Pambarangay Rules implementing the Katarungang
Pambarangay Law, only individuals may be parties to the
proceedings under the Katarungang Pambarangay Law
either as complainants or respondents. Further, no
complaint by or against corporations, partnerships or other
juridical entities may be filed, received or acted upon. Here,
being a corporation, defendant cannot be impleaded as a
party to a barangay conciliation proceeding (Universal
Robina Sugar Milling Corporation v. Heirs of Angel Teves,
G.R. No. 128574, Sept. 18, 2002).
Q: Reynold and Franco, brothers and both residents of
Marikina, Metro Manila, had opposing and exclusive
claims of ownership over a parcel of land located in
Morong, Rizal. They consulted with their uncle and
requested him to try to amicably settle their dispute. The
uncle failed, despite earnest efforts of all concerned to
arrive at a compromise. Reynold thereupon filed suit for
title or ownership without, however, bringing the dispute
to the Lupong Tagapamayapa, for settlement and without
alleging in the complaint that previous earnest efforts
towards a compromise had been exerted by him but had
failed. Franco moved to dismiss on the ground of failure of
the complaint to state a cause of action in that: (1) it did
not aver that Reynold had previously taken earnest but
futile efforts towards a compromise and (2) it did not
allege that proceedings for settlement had been filed
before the Lupon but no settlement reached, both of
which, according to Franco, are conditions precedent to a
cause of action in favor of Reynold.
If you were counsel for Reynold, what steps would you
take and what arguments will you advance to meet the
motion to dismiss based on the asserted: (1) failure to
exert efforts at a compromise; and (2) failure to observe
the Katarungang Pambarangay Law? Explain.
A: Franco's motion to dismiss is well founded because
Reynold and Franco are both residents of Marikina and
prior recourse to barangay conciliation is a pre condition to
the filing of a complaint (Tavora v. Veloso, G.R. No. L-60367,
Sept. 30, 1982)
As counsel of Reynold, I would file an opposition to Francos
motion to dismiss by submitting an affidavit of their uncle,
or presenting him as a witness, to show that earnest efforts
were made by all concerned to arrive at a compromise, but
without success. I would also argue that prior recourse to
barangay conciliation would have been futile in view of the
failure of the uncle to amicably settle the dispute.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
It is not necessary for me to amend the complaint to allege
earnest but futile efforts towards a compromise and prior
recourse to barangay conciliation, because if the defendant
does not raise these grounds in a motion to dismiss or
answer, they are deemed waived (Sec. 2, Rule 9; Ebol v.
Amin, G.R. No. L-70237, Mar. 18, 1985).
Q: Is the prescriptive period tolled while the dispute is
under mediation?
A: Yes. While the dispute is under mediation, conciliation,
or arbitration, the prescriptive periods for offenses and
cause of action under existing laws shall be interrupted
upon filing of the complaint with the Punong barangay. The
prescriptive periods shall resume upon receipt by the
complainant of the certificate of repudiation or of the
certification to file action issued by the lupon or pangkat
secretary; provided however, that such interruption shall
not exceed 60 days from the filing of the complaint with the
punong barangay (Sec. 410, RA 7160).
Q: May summons be issued and hearing conducted in the
proceeding?
A: Yes. The pangkat shall convene not later than 3 days
from its constitution, on the day and hour set by the lupon
chairman, to hear both parties and their witnesses, simplify
issues, and explore all possibilities for amicable settlement.
For this purpose, the pangkat may issue summons for the
personal appearance of parties and witnesses (Sec. 410, RA
7160).
Q: Are all proceedings open to the public?
A: GR: All proceedings for settlement shall be public and
informal.
XPN: The lupon chairman or the pangkat chairman as
the case may be, may motu proprio or upon request of
a party, exclude the public from the proceedings in the
interest of privacy, decency or public morals (Sec. 414,
RA 7160).
SUBJECT MATTER OF AMICABLE SETTLEMENT
Q: What is the subject matter for amicable settlement?
A: The lupon of each barangay shall have authority to bring
together the parties actually residing in the same
municipality or city for amicable settlement of all
disputes, except in cases enumerated in Supreme Court
Administrative circular no. 14-93 supra.
Note: The court in which non-criminal cases not falling within the
authority of the lupon under the Code are filed may, at any time
before trial, motu propio refer the case to the lupon concerned for
amicable settlement. (Sec. 408, LGC).
Q: May a lawyer appear before the Lupon as counsel or
representative?
A: No. In all katarungang pambarangay proceedings, the
parties must appear in person without the assistance of
436
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
counsel or representatives, except for minors and
incompetents who may be assisted by their next-of-kin who
are not lawyers. (Section 415, RA 7160)
Q: What is the difference, if any, between the conciliation
proceedings under the Katarungang Pambarangay Law
and the negotiations for an amicable settlement during
the pre-trial conference under the Rules of Court? (1999
Bar Question)
A: Under the conciliation proceedings in the Katarungang
Pambarangay Law, lawyers are prohibited from appearing
for the parties. The parties must appear in person only
except minors or incompetents who may be assisted by
their next of kin who are not lawyers.
Q: Francisco was dismissed on charges of payroll padding,
selling cane points without the knowledge and consent of
management and misappropriating the proceeds thereof,
and renting out Bacolod-Talisay Realty and Development
Corporation (BTRD) tractor for use in another farm and
misappropriating the proceeds thereof. Francisco
admitted his wrongdoings and asked for forgiveness; and
while a confrontation about the matter was held before
the barangay council, no settlement was reached. Hence,
a complaint for illegal dismissal was filed against BTRD.
The Labor Arbiter, affirmed by the NLRC, ruled in favor of
the BTRD. CA reversed the NLRC ruling that the dismissal
of the Francisco was without due process. Does the
confrontation before the barangay constitute first notice
in compliance with the twin notice rule?
A: The confrontation before the barangay council did not
constitute the first notice to give the employee ample
opportunity to be heard with the assistance of counsel, if
he so desires. Hearings before the barangay council do not
afford the employee ample opportunity to be represented
by counsel if he so desires because Sec. 415 of the LGC
mandates that in all katarungang pambarangay
proceedings, the parties must appear in person without the
assistance of counsel or his representatives, except for
minors and incompetents who may be assisted by their
next-of-kin who are not lawyers (Bacolod-Talisay Realty
and Development Corporation v. Romeo Dela Cruz, G.R.
No. 179563, Apr. 30, 2009).
VENUE
Q: What are the rules on venue under the law on
Katarungang Pambarangay?
A:
1. For disputes between residents of the same barangay,
the dispute must be brought for settlement in the said
barangay;
2. For disputes between residents of different barangays,
within the same city or municipality or where any of
the respondents reside at the election of the
complainant;
3. For disputes involving real property or any interest
therein, the dispute shall be brought in the barangay
where the real property or larger portion thereof is
situated; and
4. For disputes arising at the workplace where the
contending parties are employed or at the institution
where such parties are enrolled for study, they shall be
brought in the barangay where such workplace or
institution is located (Sec. 409, RA 7160).
Note: Objections to venue shall be raised in the mediation
proceedings before the punong barangay; otherwise, the same
shall be deemed waived. Any legal question which may confront
the punong barangay in resolving objections to venue herein
referred to may be submitted to the Secretary of Justice, or his
duly designated representative, whose ruling thereon shall be
binding (ibid.)
WHEN PARTIES MAY DIRECTLY GO TO COURT
Q: When may a party directly file an action in court
notwithstanding the fact that said action falls within the
authority of the lupon ng tagapamayapa?
A: Those enumerated under Supreme Court Administrative
circular no. 14-93, supra.
Note: In conciliation among members of indigenous cultural
communities, their customs and traditions shall be applied in
settling disputes between members of the cultural communities
(Sec. 412, RA 7160).
Q: Spouses Frank and Rona begot a child named James
aged 7 years old. Due to irreconcilable differences, the
wife Rona filed a Petition for Dissolution of Conjugal
Partnership and Partition of Conjugal Partnership
Properties in the CFI of Makati. Frank filed a motion to
dismiss the petition on jurisdictional grounds, claiming
that it should have been filed first in the Lupon
Tagapamayapa as provided in P.D. 1508, because both
are residents of the same Municipality of Makati. The
judge denied the motion to dismiss. Hence, Frank filed a
petition for certiorari on the grounds that the judge
exceeded its authority in assuming jurisdiction over the
case without prior referral to the Lupon and also in
declaring that issues of support pendente lite and delivery
of personal property belonging to the conjugal partnership
of the parties are essentially involved in the petition,
hence, the parties could go directly to court without
passing through the Lupon, as provided in Section 6 of P.D.
1508. Decide.
A: The issues of support pendente lite and delivery of
personal properties belonging to the conjugal partnership,
although not 'coupled' in the strict sense of the word with
the instant petition, are essentially involved in the petition
because of the minority of the daughter, and because the
resolution or decision of the court on the pending petition
would be incomplete without a clear cut disposition on the
partition of the personal and real properties of the conjugal
partnership. Hence, the dispute can proceed directly to the
courts even without compliance with PD 1508 (Blardony v.
Coscolluela, G.R. No. 70261, Feb. 28, 1990).
Q: Riza and Francia entered into a contract of lease. When
Francia failed to pay the rent, Riza instituted a complaint
437 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
for unlawful detainer against Francia. Francia moved to
dismiss because Riza failed to refer the issue first to the
Lupon and undergo conciliation proceedings before filing a
case in court. Riza insisted that P.D. 1508 is inapplicable
because at the time of the institution of the action, the
plaintiffs are temporarily residing in the place where the
action was instituted and they are permanent residents of
another province. Does P.D. 1508 apply in this case?
A: No. P.D. 1508 is not applicable. The primary purpose of
P.D. 1508 is to provide conciliation mechanism, as an
alternative to litigations in dispute settlement, to members
of the corresponding barangays who are actually residing
therein. Residence alone, without membership in said
barangays would not be an accurate and reliable criterion,
considering that such residence may be actual but be
merely temporary, transient or categorized into other
permutations as in the case of a house guest or a sojourner
on a visit of a day or two. On the other hand, mere
membership in a barangay, without actual residence
therein, should not suffice since absentee membership
would not subserve the avowed purpose of P.D. 1508 for
lack of the common bond and sense of belonging generally
fostered in members of an identified aggroupment (Bejer v.
CA, G.R. No. 79404, Jan. 27, 1989).
Note: Even when the parties reside in different cities, barangay
conciliation may still be done if the barangays wherein the parties
reside are adjacent to one another. (Albano, Remedial Law
Reviewer, 2010 ed)
EXECUTION
Q: What is the period to arrive at a settlement?
A: The pangkat shall arrive at a settlement or resolution of
the dispute within 15 days from the day it convenes. This
period shall, at the discretion of the pangkat, be extendible
for another period which shall not exceed 15 days, except
in clearly meritorious cases (Sec. 410, RA 7160).
Q: How is the arbitration award or amicable settlement
enforced?
A: The amicable settlement or arbitration award may be
enforced by execution by the lupon within six (6) months
from the date of the settlement. After the lapse of such
time, the settlement may be enforced by action in the
appropriate city or municipal court (Sec. 417, RA 7160). If
the award does not exceed P100,000, it may be enforced
under the Rules on Small Claims, otherwise, it will fall under
the provisions of the Rules of Court.
Note: The timeline in Sec. 417 should be construed to mean that if
the obligation in the settlement to be enforced is due and
demandable on the date of the settlement, the six-month period
should be counted from the date of the settlement, otherwise, if
the obligation to be enforced is due and demandable on a date
other than the date of the settlement, the six-month period should
be counted from the date the obligation becomes due and
demandable (Vidal, et al. v. Escueta, et al., G.R. No. 156228, Dec.
10, 2003).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Q: What is the effect of amicable settlement and
arbitration award?
A: GR: The amicable settlement and arbitration award shall
have the force and effect of a final judgment of a court
upon the expiration of 10 days from the date thereof,
unless repudiation of the settlement has been made or a
petition to nullify the award has been filed before the
proper city or municipal court.
XPN: If a civil case not falling within the authority of
the lupon is referred by the court to the lupon
concerned for amicable settlement, the compromise
settlement agreed upon by the parties before the
lupon chairman or the pangkat chairman shall be
submitted to the court and upon approval thereof,
have the force and effect of a judgment of said court
(Sec. 416 in relation to Sec. 408 RA 7160).
Q: How is the arbitration award complied with?
A: The parties, may, at any stage of the arbitration
proceedings, agree in writing that they shall abide by the
arbitration award of the lupon chairman or the pangkat
chairman. Such agreement to arbitrate may be repudiated
within 5 days from the date thereof on the grounds stated
in Sec. 418. The arbitration award shall be made after the
lapse of the period of repudiation and 10 days thereafter.
Q: An amicable settlement was signed before a lupon
tagapamayapa on January 3, 2001. On July 6, 2001, the
prevailing party asked the lupon to execute the amicable
settlement because of the non-compliance by the other
party of the terms of the agreement. The lupon concerned
refused to execute the settlement/agreement.
1. Is the lupon correct in refusing to execute the
settlement/agreement?
2. What should be the course of action of the prevailing
party in such a case? (2001 Bar Question)
A:
1. Yes. The execution sought is already beyond the
period of 6 months from the date of settlement within
which the lupon is authorized to execute.
2. After the 6-month period, the prevailing party should
move to execute the settlement/agreement in the
appropriate city or municipal court.
REPUDIATION
Q: What is the rule on repudiation of settlement?
A: Any party to the dispute may, within ten (10) days from
the date of the settlement, repudiate the same by filing
with the lupon chairman a statement to that effect sworn
to before him, where the consent is vitiated by fraud,
violence, or intimidation. Such repudiation shall be
sufficient basis for the issuance of the certification for filing
a complaint before the court (Sec. 418, RA 7160).
Q: Randy filed before the Barangay Captain a complaint
for reimbursement of expenses. After several hearings,
438
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
the parties executed an amicable settlement entitled
Kasunduan sa Pagbabayad. Ten days from the date of its
execution passed and neither of the parties repudiated
nor sought to repudiate the settlement agreement. A writ
of execution was filed to enforce the settlement
agreement and was granted. However, the judge, after a
few days, recalled the writ of execution. Is the judge
correct?
A: No. The judge was guilty of ignorance of the law and
dereliction of duty. Under Sec. 11 of P.D. 1508, the
amicable settlement here had the force and effect of a final
judgment of a court upon the expiration of ten days from
the date thereof, no repudiation of that settlement having
been made during that period. It was, therefore, the clear
ministerial duty of the judge to implement and enforce the
amicable settlement agreement. Enforcement of the writ of
execution may, of course, be suspended in certain
exceptional circumstances. In the instant case, no
exceptional circumstance existed. The contention of the
judge that he had suspended execution of the amicable
settlement because he merely wanted to mediate between
the parties, is completely devoid of merit and quite
incomprehensible for the parties had already amicably
settled their case on the barangay level, which settlement
had resulted in the preparation and execution of the
amicable settlement (Santos v. Isidro, A.M. No. MTJ-89-30,
Aug. 16, 1991).
RULE OF PROCEDURE FOR SMALL CLAIM CASES (AM No.
08-8-7-SC)
Q: What is the Rule of Procedure for Small Claims Cases?
A: It is a special rule of procedure adopted by the Supreme
Court pursuant to its rule-making power to govern small
claims. This rule allows a plaintiff to sue a defendant
without the need of a lawyer.
Q: Does the new rule on small claims cases create new
courts?
A: No. It simply provides a procedure for prosecuting,
defending, and adjudicating small claims cases, which by
law are already within the jurisdiction of first level courts.
SCOPE AND APPLICABILITY OF THE RULE
Q: What is the scope of this Rule?
A: The Rule governs the procedure in actions for money
claims before the Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts where the value of the claim does not exceed
One Hundred Thousand Pesos (P100,000.00), exclusive of
interest and costs.
Q: In what actions does the rule on small claims apply?
A:
1. Those which are purely civil in nature where the claim
or relief prayed for by the plaintiff is solely for
payment or reimbursement of sum of money;
2. The civil aspect of criminal actions either filed before
the institution of the criminal action or reserved upon
the filing of a criminal action in court, pursuant to Rule
111 of the Revised Rules of Criminal Procedure (Sec.
4); and
3. The enforcement of a barangay amicable settlement
or an arbitration award involving money claims
covered by the Rule, pursuant to Sec. 417 of the Local
Government Code of 1991.
Q: What should the claims or demands consist of?
A: The claims or demands may be:
1. For money owed under any of following:
a. Contract of lease;
b. Contract of loan;
c. Contract of services;
d. Contract of sale; or
e. Contract of mortgage.
2. For damages arising from any of the following:
a. Fault or negligence;
b. Quasi-contracts; and
c. Contracts.
3. The enforcement of a barangay amicable settlement
or an arbitration award involving a money claim
covered by this rule pursuant to Sec. 417 of the Local
Government Code of 1991 (Sec. 4, A.M. No. 08-8-7-SC).
Q: What is the jurisdictional amount for small claims?
A: The value of the claim prayed for must not exceed one
hundred thousand pesos (P100, 000.00) exclusive of
interest and costs (Sec. 2, A.M. No. 08-8-7-SC).
COMMENCEMENT OF SMALL CLAIMS ACTION; RESPONSE
Q: How does one start a small claims case?
A: The plaintiff must first accomplish a verified Statement
of Claim and certify the information provided, stating that
he has not filed any action involving the very same issue in
any other court, tribunal or agency through a verification
and certification of non-forum shopping.
The Statement of Claim must be accompanied by certified
duplicate photocopies of all supporting documents.
The plaintiff then files the Statement of Claim with its
accompanying documents with the office of the clerk of
court of the small claims court, personally or through mail,
and pays the correct docket and filing fees prescribed under
Rule 141 of the Revised Rules of Court
No evidence shall be allowed during the hearing which was
not attached to the claim unless good cause is shown for
the admission of the evidence (Sec. 5, A.M. No. 08-8-7-SC).
If one is an indigent, he may apply to the small claims court
to qualify as an indigent, and once qualified, he is exempt
from payment of such fees (Sec. 8, A.M. No. 08-8-7-SC).
Note: In no case shall a party, even if declared an indigent, be
exempt from the payment of P1,000.00 fee for service of summons
439 UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
and processes in civil cases (Sec. 8, A.M. No. 08-8-7-SC, as amended
in October 2008).
Plaintiff may join in a single statement of claim one or more
separate small claims against a defendant provided that the
total amount claimed, exclusive of interest and costs, does
not exceed 100,000 (Sec. 6, A.M. No. 08-8-7-SC).
Q: When should the defendant file a response?
A: The defendant shall file with the court and serve on the
plaintiff a duly accomplished and verified response within a
non-extendible period of ten (10) days from receipt of
summons.
The response shall be accompanied by certified
photocopies of documents, as well as affidavits of
witnesses and other evidence in support thereof. No
evidence shall be allowed during the hearing which was not
attached to or submitted together with the Response,
unless good cause is shown for the admission of additional
evidence (Sec. 11, A.M. No. 08-8-7-SC).
Q: Instead of filing a response, can a defendant file a
motion to dismiss the claim?
A: No. The filing of a motion to dismiss instead of a
response is prohibited.
Q: What is the effect if the defendant failed to file a
response within the required period?
A: The court by itself shall render judgment as may be
warranted by the facts alleged in the Statement of Claims
limited to what is prayed for. The court however, may, in its
discretion reduce the amount of damages for being
excessive or unconscionable (Sec. 12, A.M. No. 08-8-7-SC).
Q: Are counterclaims allowed under this rule?
A: Yes. If at the time the action is commenced, the
defendant in his Response may file as counterclaim a claim
against the plaintiff that:
1. is within the coverage of this Rule, exclusive of interest
and costs;
2. arises out of the same transaction or event that is the
subject matter of the plaintiffs claim;
3. does not require for its adjudication the joinder of
third parties; and
4. is not a subject of another pending action (Sec. 13,
A.M. No. 08-8-7-SC).
Note: The defendant may also elect to file a counterclaim against
the plaintiff that does not arise out of the same transaction or
occurrence, provided that the amount and nature thereof are
within the coverage of this Rule and the prescribed docket and
other legal fees are paid.
Q: What happens when a defendant fails to include a
counterclaim in his/her Response?
A: If the counterclaim is compulsory, it must be raised in
the same case. Otherwise, it will be barred (Sec.13, A.M.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
No. 08-8-7-SC).
PROHIBITED PLEADINGS AND MOTIONS
Q: What are the prohibited pleadings, motions and
petitions?
A:
1. Motion to dismiss the complaint
Note: the amended rules on small claim removed the
exception on motion to dismiss based on lack of jurisdiction.
The grounds for the dismissal of the claim, under rule 16 of
the rules of court, should be pleaded (Sec. 11, A.M. No. 08-8-
7-SC, as amended).
2. Motion for a bill of particulars;
3. Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
4. Petition for relief from judgment;
5. Motion for extension of time to file pleadings,
affidavits, or any other paper;
6. Memoranda;
7. Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the court;
8. Motion to declare the defendant in default;
9. Dilatory motions for postponement;
10. Reply;
11. Third-party complaints; and
12. Interventions (Sec. 14, A.M. No. 08-8-7-SC as
amended).
APPEARANCES
Q: Who are required to appear at the hearing?
A: The parties shall appear at the hearing personally or
through a representative they may authorize under a
Special Power of Attorney to enter into an amicable
settlement, to submit to Judicial Dispute Resolution (JDR)
and to enter into stipulations or admissions of facts and of
documentary exhibits (Sec. 16, A.M. No. 08-8-7-SC).
Note: Appearance through a representative must be for a valid
cause. The representative of an individual-party must not be a
lawyer, and must be related to or next-of-kin of the individual-
party. Juridical entities shall not be represented by a lawyer in any
capacity (Sec. 16, A.M. No. 08-8-7-SC).
Q: What is the effect of non-appearance of a party?
A:
1. If the plaintiff does not appear, the claim shall be
dismissed without prejudice. The defendant who
appears shall be entitled to judgment on a permissive
counterclaim.
2. If the defendant does not appear, the effect will be the
same as failure to file a Response. This shall not apply
where one of two or more defendants who are sued
under a common cause of action and have pleaded a
common defense appears at the hearing
440
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
3. If both parties do not appear, the claim and
counterclaim shall be dismissed with prejudice (Sec.
18, A.M. No. 08-8-7-SC).
Q: What then is the remedy of a party when the decision
Q: Are lawyers allowed at the hearing? is final and unappealable?

A: No, lawyers are not allowed to appear at the hearing
unless they are the plaintiff or the defendant. However,
since the process is still a legal process, the parties and
their authorized representatives can still consult with a
lawyer to assist them to prepare for the hearing or for
other matters outside the hearing (Sec. 17, A.M. No. 08-8-7-
SC).
Note: The court, in its discretion, may allow another individual who
is not a lawyer to assist the party (Sec. 17, A.M. No. 08-8-7-SC).
A: The rule does not preclude a party from filing a petition
for certiorari under Rule 65 when there is grave abuse of
discretion amounting to lack or excess of jurisdiction in
relation to a judgment in a small claims action (such a
petition is prohibited with regard to interlocutory orders).
Further, the aggrieved party can also file an action for
annulment of judgment when the requirements under the
Rules of Civil Procedure are complied with.

HEARING; DUTY OF THE JUDGE

Q: What is the duty of the court at the beginning of the

court session?

A: At the beginning of the court session, the judge shall

read aloud a short statement explaining the nature,
purpose and the rule of procedure of small claims cases
(Sec. 20, A.M. No. 08-8-7-SC)

Q: What is the duty of the judge at the hearing?

A: The judge shall exert efforts to bring the parties to an

amicable settlement of their dispute. Any settlement or
resolution of the dispute shall be reduced into writing,
signed by the parties and submitted to the court for
approval.

Note: There is no trial under the Rules on Small Claims. Under Sec.
22, if efforts at settlement fail, the hearing shall proceed in an
informal and expeditious manner and be terminated within one (1)
day. Either party may move in writing to have another judge hear
and decide the case. The reassignment of the case shall be done in
accordance with existing issuances.
The referral by the original judge to the Executive Judge shall be
made within the same day the motion is filed and granted, and by
the Executive Judge to the designated judge within the same day of
the referral. The new judge shall hear and decide the case within
five (5) working days from receipt of the order of reassignment.

Q: When is postponement of a hearing allowed?

A: It may be granted only upon proof of the physical
inability of the party to appear before the court on the
scheduled date and time. A party may avail of only 1
postponement (Sec. 19, A.M. No. 08-8-7-SC).

FINALITY OF JUDGMENT

Q: Is an appeal of a decision allowed?

A: No. A decision in small claims cases is final and

unappealable (Sec. 23, A.M. No. 08-8-7-SC). The declaration
that the decision is final and unappealable is in line with the
nature of small claims which is designed to preclude
unmeritorious appeals that result in long drawn litigation
for cases of this nature, pursuant to the Supreme Courts
constitutional mandate to enact rules of procedure.

441 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
RULES OF PROCEDURE FOR ENVIRONMENTAL CASES (A.M.
No. 09-6-8-SC)
SCOPE AND APPLICABILITY OF THE RULE
Q: What is the scope of the Rule on Environmental Cases?
A: These Rules shall govern the procedure in civil, criminal
and special civil actions before the Regional Trial Courts,
Metropolitan Trial Courts, Municipal Trial Courts in Cities,
Municipal Trial Courts and Municipal Circuit Trial Courts
involving enforcement or violations of environmental and
other related laws, rules and regulations such as but not
limited to the following:
(a) Act No. 3572, Prohibition Against Cutting of Tindalo,
Akli, and Molave Trees;
(b) P.D. No. 705, Revised Forestry Code;
(c) P.D. No. 856, Sanitation Code;
(d) P.D. No. 979, Marine Pollution Decree;
(e) P.D. No. 1067, Water Code;
(f) P.D. No. 1151, Philippine Environmental Policy of
1977;
(g) P.D. No. 1433, Plant Quarantine Law of 1978;
(h) P.D. No. 1586, Establishing an Environmental Impact
Statement System Including Other Environmental
Management Related Measures and for Other
Purposes;
(i) R.A. No. 3571, Prohibition Against the Cutting,
Destroying or Injuring of Planted or Growing Trees,
Flowering Plants and Shrubs or Plants of Scenic Value
along Public Roads, in Plazas, Parks, School Premises or
in any Other Public Ground;
(j) R.A. No. 4850, Laguna Lake Development Authority
Act;
(k) R.A. No. 6969, Toxic Substances and Hazardous Waste
Act;
(l) R.A. No. 7076, Peoples Small-Scale Mining Act;
(m) R.A. No. 7586, National Integrated Protected Areas
System Act including all laws, decrees, orders,
proclamations and issuances establishing protected
areas;
(n) R.A. No. 7611, Strategic Environmental Plan for
Palawan Act;
(o) R.A. No. 7942, Philippine Mining Act;
(p) R.A. No. 8371, Indigenous Peoples Rights Act;
(q) R.A. No. 8550, Philippine Fisheries Code;
(r) R.A. No. 8749, Clean Air Act;
(s) R.A. No. 9003, Ecological Solid Waste Management
Act;
(t) R.A. No. 9072, National Caves and Cave Resource
Management Act;
(u) R.A. No. 9147, Wildlife Conservation and Protection
Act;
(v) R.A. No. 9175, Chainsaw Act;
(w) R.A. No. 9275, Clean Water Act;
(x) R.A. No. 9483, Oil Spill Compensation Act of 2007; and
(y) Provisions in C.A. No. 141, The Public Land Act; R.A.
No. 6657, Comprehensive Agrarian Reform Law of
1988; R.A. No. 7160, Local Government Code of 1991;
R.A. No. 7161, Tax Laws Incorporated in the Revised
Forestry Code and Other Environmental Laws
(Amending the NIRC); R.A. No. 7308, Seed Industry
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Development Act of 1992; R.A. No. 7900, High-Value
Crops Development Act; R.A. No. 8048, Coconut
Preservation Act; R.A. No. 8435, Agriculture and
Fisheries Modernization Act of 1997; R.A. No. 9522,
The Philippine Archipelagic Baselines Law; R.A. No.
9593, Renewable Energy Act of 2008; R.A. No. 9637,
Philippine Biofuels Act; and other existing laws that
relate to the conservation, development, preservation,
protection and utilization of the environment and
natural resources (Sec. 2, Rule 1, AM No. 09-6-8-SC).
Note: The rules remain consistent with prevailing jurisprudence
regarding the doctrine of exhaustion of administrative remedies
and primary jurisdiction (AM No. 09-6-8-SC, Annotation to the
Rules of Procedure for Environmental Cases).
CIVIL PROCEDURE
PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Q: Can a court issue a writ of preliminary injunction or
temporary restraining order to prevent the government
from enforcing environmental laws or prevent violations
thereof?
A: As a general rule, no court can issue a TRO or writ of
preliminary injunction against lawful actions of government
agencies that enforce environmental laws or prevent
violations thereof. Only the Supreme Court can issue such
orders (Sec. 10, Rule 2, AM No. 09-6-8-SC).
Note: The judge shall report any action taken on a TEPO, EPO, TRO
or a preliminary injunction, including its modification and
dissolution within ten (10) days from the action taken to the
Supreme Court, through the Office of the Court Administrator (Sec
11, Rule 2, AM No. 09-6-8-SC).
Q: What is the difference between a TEPO and the
prohibition against issuance of TRO?
A: A TEPO is premised on the violation of an environmental
law or a threatened damage or injury to the environment
by any person, even the government and its agencies while
the prohibition against the issuance of a TRO or preliminary
injunction is premised on the presumption of regularity on
the government and its agencies in enforcing
environmental laws and protecting the environment
(Annotation to the Rules of Procedure for Environmental
Cases).
PRE-TRIAL CONFERENCE; CONSENT DECREE
Q: When may the court issue a notice of pre-trial?
A: Within two (2) days from filing an answer to the
counterclaim of cross-claim, if any, the clerk of court shall
issue a notice of pre-trial to be held not later than one (1)
month from the filing of the last pleading (Sec. 1, Rule 3,
AM No. 09-6-8-SC).
Note: The court shall schedule the pre-trial and set as many pre-
trial conferences as may be necessary within a period of two (2)
months counted from the date or the first pre-trial conference
(Ibid.).
442
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
answers to request for admissions by the adverse party
The judge shall put the parties and their counsels under oath, and under Rule 26. The branch clerk of court may also require
they shall remain under oath in all pre-trial conferences. The judge the production of documents or things requested by a party
shall exert best efforts to persuade the parties to arrive at a
under Rule 27 and the results of the physical and mental
settlement of the dispute. Evidence not presented during the pre-
trial, except newly discovered evidence, shall be deemed waived. examination of persons under Rule 28.
(Sec. 5 Rule 3)
Note: The sole purpose for the use of depositions at pre-trial is to
obtain admissions. This excludes the presentation of evidence.
Q: Is mediation mandatory?
Q: What is a Consent Decree?
A: At the start of the pre-trial conference, the court shall
inquire from the parties if they have settled the dispute
A: It is a judicially-approved settlement between concerned
otherwise, the court shall immediately refer the parties or
parties based on public interest and public policy to protect
their counsel, if authorized by their clients, to the Philippine
and preserve the environment [Sec 4(b), Rule 1, AM No. 09-
Mediation Center (PMC) unit for purposes of mediation. If
6-8-SC].
not available, the court shall refer the case to the clerk of
court or legal researcher for mediation (Sec 3, Rule 3, AM Note: The judge may issue a consent decree approving the
No. 09-6-8-SC). agreement between the parties in accordance with law, morals,
public order and public policy to protect the right of the people to
Note: If the parties have not settled their dispute at this stage, the a balanced and healthful ecology (Sec. 5, Rule 3, AM No. 09-6-8-
provision makes it mandatory for the judge to refer the parties to SC).
mediation (Annotation to the Rules of Procedure for Environmental
Cases). A consent decree derives its contractual nature from the fact of
their being entered into by the parties themselves through which
Q: What happens if mediation fails? they arrive at a certain compromise with respect to the issues
involved in the case, whereas their judicial feature is acquired
A: The court will schedule the continuance of the pre-trial. through the approval of the court. It has a number of advantages:
Before the scheduled date of continuance, the court may
(1) It encourages the parties (the government and the violators) to
refer the case to the branch clerk of court for a preliminary come up with comprehensive, mutually acceptable solutions to the
conference for the following purposes: environmental problem, and since the agreement was arrived at
voluntarily, there is a greater possibility of actual compliance
(a) To assist the parties in reaching a settlement (2) It is open to public scrutiny
(b) To mark the documents or exhibits to be presented by (3) It allows the parties to address issues other than those
the parties and copies thereof to be attached to the records presented to the court and
after comparison with the originals (4) It is still subject to judicial approval and can be enforced
through a court order.
(c) To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of the
Q: What is the duty of the judge during the pre-trial
documents marked as exhibits
conference?
(d) To require the parties to submit the depositions taken
under Rule 23 of the Rules of Court, the answers to written
A:
interrogatories under Rule 25, and the answers to request
1. Put the parties and their counsels under
for admissions by the adverse party under Rule 26
oath and they shall remain under oath in all pre-trial
(e) To require the production of documents or things
conferences;
requested by a party under Rule 27 and the results of the
2. Exert best efforts to persuade parties to
physical and mental examination of persons under Rule 28
arrive at an amicable settlement; or
(f) To consider such other matters as may aid in its prompt
3. Issue a consent decree (Sec 5, Rule 3,
disposition
AM No. 09-6-8-SC).
(g) To record the proceedings in the Minutes of
Q: What is the effect of failure to appear at pre-trial?
Preliminary Conference to be signed by both parties or
A: The court shall not dismiss the complaint, except upon
their counsels
repeated and unjustified failure of the plaintiff to appear.
(h) To mark the affidavits of witnesses which shall be in
The dismissal shall be without prejudice, and the court may
question and answer form and shall constitute the direct
proceed with the counterclaim. On the other hand, if the
examination of the witnesses and
defendant fails to appear at the pre-trial, the court shall
(i) To attach the minutes together with the marked exhibits
receive evidence ex parte (Sec. 7, Rule 3, AM No. 09-6-8-
before the pre-trial proper.
SC).
The parties or their counsel must submit to the branch clerk
PROHIBITED PLEADINGS AND MOTIONS
of court the names, addresses and contact numbers of the
affiants.
Q: What are the prohibited pleadings and motions under
this Rules Civil Procedure?
During the preliminary conference, the branch clerk of
court shall also require the parties to submit the
A:
depositions taken under Rule 23 of the Rules of Court, the
1. Motion to dismiss the complaint;
answers to written interrogatories under Rule 25 and the

443 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
2. Motion for a bill of particulars;
3. Motion for extension of time to file pleadings, except
to file answer, the extension not to exceed fifteen (15)
days;
4. Motion to declare the defendant in default;
5. Reply and rejoinder; and
6. Third party complaint (Sec. 2, Rule 2, AM No. 09-6-8-
SC).
Note: Petition for certiorari is permitted since it raises
fundamentally questions of jurisdiction and the Supreme Court
may not be deprived of its certiorari jurisdiction under Article VIII,
5(2) of the Constitution (Annotation to the Rule of Procedure for
Environmental Cases).
Q: When is a motion for postponement, motion for new
trial and petition for relief from judgment allowed?
A: It shall only be allowed in highly meritorious cases or to
prevent miscarriage of justice (Annotation to the Rule of
Procedure for Environmental Cases).
TEMPORARY ENVIRONMENTAL PROTECTION ORDER
(TEPO)
Q: When should a Temporary Environmental Protection
order be issued?
A: If it appears from the verified complaint with a prayer for
the issuance of an Environmental Protection Order (EPO)
that the matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury (Sec. 8, Rule 2,
AM No. 09-6-8-SC).
Note: It is effective for only seventy-two (72) hours from date of
the receipt of the TEPO by the party or person enjoined. Within
said period, the court where the case is assigned, shall conduct a
summary hearing to determine whether the TEPO may be
extended until the termination of the case. The court where the
case is assigned shall periodically monitor the existence of acts that
are the subject matter of the TEPO even if issued by the executive
judge, and may lift the same at any time as circumstances may
warrant (Sec. 8, Rule 2, AM No. 09-6-8-SC).
Q: May a TEPO be issued ex parte?
A: Yes. While it may be issued ex parte, this is an exception.
The general rule of due process of conducting a hearing
remains (Sec. 2, Rule 8, AM No. 09-6-8-SC).
Q: Is the applicant required to post a bond?
A: No. The applicant shall be exempted from the posting of
a bond for the issuance of a TEPO (Sec. 8, Rule 2, AM No.
09-6-8-SC).
Q: May the TEPO be dissolved?
A: The TEPO may be dissolved if it appears after hearing
that its issuance or continuance would cause irreparable
damage to the party or person enjoined while the applicant
may be fully compensated for such damages as he may
suffer and subject to the posting of a sufficient bond by the
party or person enjoined (Sec. 9, Rule 2, AM No. 09-6-8-SC).
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
Note: The grounds for motion to dissolve a TEPO shall be
supported by affidavits of the party or person enjoined which the
applicant may oppose, also by affidavits (Sec. 9, Rule 2, AM No. 09-
6-8-SC). A TEPO may be converted into a writ of continuing
mandamus should the circumstances warrant.
JUDGMENT AND EXECUTION; RELIEFS IN A CITIZENS SUIT
Q: What is a citizen suit?
A: It is an action to enforce rights or obligations under
environmental laws, which any Filipino citizen in
representation of others, including minors or generations
yet unborn, may file. (Sec. 5, Rule 2, AM No. 09-6-8-SC)
Note: It is intended to encourage the protection of the
environment. The provision liberalizes standing for all cases filed
enforcing environmental laws on the principle that humans are
stewards of nature (Annotation to the Rules of Procedure for
Environmental Cases).
Q: Is there a need for publication?
A: No. Upon the filing of a citizen suit, the court shall issue
an order which shall contain a brief description of the cause
of action and the reliefs prayed for, requiring all interested
parties to manifest their interest to intervene in the case
within fifteen (15) days from notice thereof. The plaintiff
may publish the order once in a newspaper of a general
circulation in the Philippines or furnish all affected
barangays copies of said order. This adopts the features of
the general rule on publication found in cases in rem, and is
meant to reflect the distinct nature of environmental cases.
In this Rule, however, publication is permissive and non-
jurisdictional and is meant only to encourage public
participation.
Q: What are the reliefs in a citizen suit?
A: If warranted, the court may grant to plaintiff proper
reliefs which shall include:
1. Protection, preservation or rehabilitation of
the environment and the payment of
attorneys fees, costs of suit and other
litigation expenses;
2. It may also require the violator to submit a
program of rehabilitation or restoration of
the environment, the costs of which shall be
borne by the violator; or
3. Require the violator to contribute to a
special trust fund for that purpose subject to
the control of the court (Sec. 1, Rule 5, AM
No. 09-6-8-SC).
Note: In a citizen suit, the court shall defer the payment of filing
and other legal fees that shall serve as first lien on the judgment
award (Sec. 12, Rule 2, AM No. 09-6-8-SC).
Q: May damages be awarded in a citizen suit?
A: No. A party or person who suffers damage or injury
arising from an environment prejudice, which is also the
same subject of citizen suit, cannot claim for damages in a
citizen suit since it is the environment that is vindicated in
444
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
the action. Based on this, a citizen suit can take place
simultaneously with the filing of an individual complaint
(Annotation to the Rules of Procedure for Environmental
Cases).
Q: Can a judgment be stayed by appeal?
A: GR: No. Any judgment directing the performance of acts
for the protection, preservation or rehabilitation of the
environment shall be executory pending appeal unless
restrained by the appellate court (Sec. 2, Rule 5, AM No. 09-
6-8-SC).
XPN: If the appellate court acted with great abuse of
discretion refusing to act on the application for a TRO,
a petition for certiorari under Rule 65 can be brought
before the Supreme Court.
Q: When is there a need to refer to a commissioner?
A: The court may motu proprio, or upon motion of the
prevailing party, order that the enforcement of the
judgment or order be referred to a commissioner to be
appointed by the court. The commissioner shall file with
the court written progress reports on a quarterly basis or
more frequently when necessary (Sec. 4, Rule 5, AM No. 09-
6-8-SC).
Q: When shall the judgment be deemed executed?
A: The process of execution shall terminate upon a
sufficient showing that the decision or order has been
implemented to the satisfaction of the court in accordance
with Section 14, Rule 39 of the Rules of Court (Sec. 5, Rule
5, AM No. 09-6-8-SC).
PERMANENT ENVIRONMENTAL PROTECTION ORDER;
WRIT OF CONTINUING MANDAMUS
Q: What is a writ of Continuing Mandamus?
A: It is a writ issued by a court in an environmental case
directing any agency or instrumentality of the government
or officer thereof to perform an act or series of acts
decreed by final judgment which shall remain effective until
judgment is fully satisfied [Sec. 4 (c), Rule 1, AM No. 09-6-8-
SC].
Q: What is an Environmental Protection Order?
A: It is an order issued by the court directing or enjoining
any person or government agency to perform or desist
from performing an act in order to protect, preserve or
rehabilitate the environment [Sec. 4(d), Rule 1, AM No. 09-
6-8-SC].
Q: When may the court convert a TEPO to a permanent
EPO? When may the court issue a writ of continuing
mandamus?
A: In the judgment, the court may convert the TEPO to a
permanent EPO or issue a writ of continuing mandamus
445
directing the performance of acts which shall be effective
until the judgment is fully satisfied.
Note: The court may, by itself or through the appropriate
government agency, monitor the execution of the
judgment and require the party concerned to submit
written reports on a quarterly basis or sooner as may be
necessary, detailing the progress of the execution and
satisfaction of the judgment. The other party may, at its
option, submit its comments or observations on the
execution of the judgment (Sec. 3, Rule 5, AM No. 09-6-8-
SC).
STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION
Q: What is a Strategic Lawsuit Against Public Participation
(SLAPP)?
A: It is a legal action filed to harass, vex, exert undue
pressure or stifle any legal recourse that any person,
institution or the government has taken or may take in the
enforcement of environmental laws, protection of the
environment or assertion of environmental rights (Sec. 1,
Rule 6, AM No. 09-6-8-SC).
Note: The nature of the hearing on the defense of a SLAPP shall be
summary in nature. The parties must submit all available evidence
in support of their respective positions (Sec. 3, Rule 6, AM No. 09-6-
8-SC).
Q: Can the defendant raise SLAPP as a legal defense?
A: Yes, the defendant may file an answer interposing as a
defense that the case is a SLAPP and shall be supported by
documents, affidavits, papers and other evidence; and, by
way of counterclaim, pray for damages, attorneys fees and
costs of suit (Sec. 1, Rule 6, AM No. 09-6-8-SC).
Note: The plaintiff or adverse party has non-extendible period of
five (5) days from receipt of notice that an answer has been filed,
to file an opposition. The defense of a SLAPP shall be set for
hearing by the court after issuance of the order to file an
opposition within fifteen (15) days from filing of the comment or
the lapse of the period (Sec. 2, Rule 6, AM No. 09-6-8-SC).
This provision applies not only to suits that have been filed in the
form of a countersuit, but also to suits that are about to be filed
with the intention of discouraging the aggrieved person from
bringing a valid environmental complaint before the court.
Q: What is the quantum of proof required?
A: The party seeking the dismissal of the case must prove
by substantial evidence that his act for the enforcement of
environmental law is a legitimate action for the protection,
preservation and rehabilitation of the environment.
The party filing the action assailed as a SLAPP shall prove by
preponderance of evidence that the action is not a SLAPP
and is a valid claim (Sec. 3, Rule 6, AM No. 09-6-8-SC).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: How many days does the court have to resolve the
issue of the defense of SLAPP?
A: Within 30 days, the court shall resolve the question of
SLAPP (Sec. 3, Rule 6, AM No. 09-6-8-SC).
Q: What is the effect of the dismissal of the action?
A: If the court dismisses the action, the court may award
damages, attorneys fees and costs of suit under a
counterclaim if such has been filed. The dismissal shall be
with prejudice (Sec. 4, Rule 6, AM No. 09-6-8-SC). The
dismissal of the SLAPP suit constitutes res judicata and is a
bar to the refiling of a similar case.
Q: What happens to the evidence adduced in case the
court rejects the defense of a SLAPP?
A: It shall be treated as evidence of the parties on the
merits of the case. And the action shall proceed in
accordance with the Rules of Court (Sec. 4, Rule 6, AM No.
09-6-8-SC).
Q: Can SLAPP be raised as a defense in criminal cases?
A: Yes. The accused may file a motion to dismiss on the
ground that the action is a SLAPP upon the filing of an
information in court and before arraignment (Sec. 1, Rule
19, AM No. 09-6-8-SC).
Note: The court shall grant the motion if the accused establishes in
the summary hearing that the criminal case has been filed with
intent to harass, vex, exert undue pressure or stifle any legal
recourse that any person, institution or the government has taken
or may take in the enforcement of environmental laws, protection
of the environment or assertion of environmental rights (Sec. 3,
Rule 19, AM No. 09-6-8-SC).
If the court denies the motion, it shall immediately proceed with
the arraignment of the accused (Sec. 3, Rule 19, AM No. 09-6-8-SC).
SPECIAL CIVIL ACTION
WRIT OF KALIKASAN
Q: What is the Writ of Kalikasan?
A: It is a special remedy available to a natural or juridical
person, entity authorized by law, peoples organization,
non-governmental organization, or any public interest
group accredited by or registered with any government
agency, on behalf of persons whose constitutional right to a
balanced and healthful ecology is violated, or threatened
with violation by an unlawful act or omission of a public
official or employee, or private individual or entity,
involving environmental damage of such magnitude as to
prejudice the life, health or property of inhabitants in two
or more cities or provinces (Sec. 1, Rule 7).
Q: Who may avail of the writ?
A: The petition can be filed by the following:
a. A natural or juridical person;
b. Entity authorized by law; or
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
c. POs, NGOs or any public interest group accredited by
or registered with any government agency on behalf of
persons whose constitutional right to a balanced and
healthful ecology is violated (Sec. 1, Rule , AM No. 09-
6-8-SC 7).
Q: What is the magnitude of environmental damage in a
writ of kalikasan?
A: It must be of environmental damage of such magnitude
as to prejudice the life, health or property of inhabitants in
two or more cities or provinces (Sec. 1, Rule 7, AM No. 09-6-
8-SC).
Q: Is the petitioner required to pay docket fees?
A: No, the petitioner is exempt from payment of docket
fees (Sec. 4, Rule , AM No. 09-6-8-SC 7). The exemption
encourages public participation of availing the remedy.
Q: Within what time should the issuance of the writ is
made?
A: Within three (3) days from the date of filing of the
petition, if the petition is sufficient in form and substance,
the court shall give an order: (a) issuing the writ; and (b)
requiring the respondent to file a verified return as
provided in Section 8 of Rule 8 (Sec. 5, Rule 7, AM No. 09-6-
8-SC).
Q: On what grounds may a respondent be cited for
contempt?
A: The court may after hearing punish the respondent who
refuses or unduly delays the filing of a return, or who
makes a false return, or any person who disobeys or resists
a lawful process or order of the court for indirect contempt
under Rule 71 of the Rules of Court (Sec. 13, Rule 7, AM No.
09-6-8-SC).
Note: This section is similar to Sec. 16 of the Rule on the Writ of
Amparo.
PROHIBITED PLEADINGS AND MOTIONS
Q: What are the prohibited pleadings and motions?
A:
1. Motion to dismiss;
2. Motion for extension of time to file return;
3. Motion for postponement;
4. Motion for a bill of particulars;
5. Counterclaim or cross-claim;
6. Third-party complaint;
7. Reply; and
8. Motion to declare respondent in default (Sec. 9,
Rule 7, AM No. 09-6-8-SC).
446
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
DISCOVERY MEASURES
Q: What are the interim reliefs available to the petitioner
upon filing a verified motion?
A:
1. Ocular inspection; or
2. Production or inspection of documents or things (Sec.
12, Rule 7, AM No. 09-6-8-SC).
Q: What are the requisites for granting an ocular
inspection?
A: The motion must show:
1. that an ocular inspection order is necessary to
establish the magnitude of the violation or the threat
as to prejudice the life, health or property of
inhabitants in two or more cities or provinces;
2. it shall state in detail the place or places to be
inspected; and
3. It shall be supported by affidavits of witnesses having
personal knowledge of the violation or threatened
violation of environmental law [Sec. 12(a), Rule 7, AM
No. 09-6-8-SC].
Q: What does the ocular inspection order contain?
A: The order shall specify the person or persons authorized
to make the inspection and the date, time, place and
manner of making the inspection and may prescribe other
conditions to protect the constitutional rights of all parties
[Sec. 12(a), Rule 7, AM No. 09-6-8-SC].
Q: What must the motion asking for the issuance of a
production order or inspection of documents?
A: The motion must show that a production order is
necessary to establish the magnitude of the violation or the
threat as to prejudice the life, health or property of
inhabitants in two or more cities or provinces [Sec. 12(b),
Rule 7, AM No. 09-6-8-SC].
Q: What must the production order state?
A: The production order shall specify the person or persons
authorized to make the production and the date, time,
place and manner of making the inspection or production
and may prescribe other conditions to protect the
constitutional rights of all parties (Sec. 12(b), Rule 7, AM
No. 09-6-8-SC).
Note: After hearing, the court may order any person in possession,
custody or control of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, or
objects in digitized or electronic form, which constitute or contain
evidence relevant to the petition or the return, to produce and
permit their inspection, copying or photographing by or on behalf
of the movant [Sec. 12(b), Rule 7, AM No. 09-6-8-SC].
The court may after hearing punish the respondent who refuses or
unduly delays the filing of a return, or who makes a false return, or
any person who disobeys or resists a lawful process or order of the
court for indirect contempt under Rule 71 of the Rules of Court
(Sec. 13, Rule 7, AM No. 09-6-8-SC).
447
WRIT OF CONTINUING MANDAMUS
Q: What is a writ of continuing mandamus?
A: It is a writ issued by a court in an environmental case
directing any agency or instrumentality of the government
or officer thereof to perform an act or series of acts
decreed by final judgment which shall remain effective until
judgment is fully satisfied [Sec. 4(c), Rule 1, AM No. 09-6-8-
SC].
Q: When may an aggrieved party file a verified petition for
the issuance of a writ of continuing mandamus?
A:
1. When any agency or instrumentality of the
government or officer thereof to perform such acts
who unlawfully neglects the performance of an act
which the law specifically enjoins as a duty resulting
from an office, trust or station in connection with the
enforcement or violation of an environmental law rule
or regulation or a right therein, or unlawfully excludes
another from the use or enjoyment of such right; and
2. When there is no other plain, speedy and adequate
remedy in the ordinary course of law (Sec. 1, Rule 8,
AM No. 09-6-8-SC).
Q: What should the verified petition contain?
A: It must contain the following:
1. Allegation of facts;
2. Specific allegation that the petition concerns an
environmental law, rule or regulation;
3. Prayer that judgment be rendered commanding the
respondent to do an act or series of acts until the
judgment is fully satisfied;
4. Prayer for payment of damages sustained by the
plaintiff due to malicious neglect to perform legal
duties; and
5. Sworn certification of non-forum shopping (Sec. 1,
Rule 8, AM No. 09-6-8-SC).
Q: Where should the petition be filed?
A: The petition shall be filed with the Regional Trial Court
exercising jurisdiction over the territory where the
actionable neglect or omission occurred or with the Court
of Appeals or the Supreme Court (Sec. 2, Rule 8, AM No. 09-
6-8-SC).
Q: Are docket fees required to be paid?
A: No. The petitioner is exempt from payment of docket
fees (Sec. 3, Rule 8, AM No. 09-6-8-SC).
Q: What does the court do if the petition is sufficient in
form and substance?
A: The court shall issue the writ and require the respondent
to comment on the petition within 10 days from receipt of
a copy thereof (Sec. 4, Rule 8, AM No. 09-6-78-SC).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Note: The order to comment shall be served on the respondents in
such manner as the court may direct, together with a copy of the
petition and any annexes thereto (Sec. 4, Rule 8, AM No. 09-6-8-
SC).

Q: How may the court expedite the proceedings?

A:
1. Issue such orders to expedite the proceedings; and
2. Grant a TEPO for the preservation of the rights of the
parties pending such proceedings (Sec. 5, Rule 8, AM
No. 09-6-8-SC).

Q: What is the nature of the hearing?

A: It is summary in nature. The court, after the comment is

filed or the time for the filing thereof has expired, shall
require the parties to submit memoranda (Sec. 6, Rule 8,
AM No. 09-6-8-SC).

Q: When should the petition be resolved?

A: The petition shall be resolved without delay within sixty

(60) days from the date of the submission of the petition
for resolution (Sec. 6, Rule 8, AM No. 09-6-8-SC).

Q: When can the court grant the privilege of the writ of

continuing mandamus?

A: If warranted, the court shall grant the privilege of the

writ of continuing mandamus requiring respondent to
perform an act or series of acts until the judgment is fully
satisfied and to grant such other reliefs as may be
warranted resulting from the wrongful or illegal acts of the
respondent (Sec. 7, Rule 8, AM No. 09-6-8-SC).

Q: What is required of the respondent upon judgment?

A: The court shall require the respondent to submit

periodic reports detailing the progress and execution of the
judgment, and the court may, by itself or through a
commissioner or the appropriate government agency,
evaluate and monitor compliance (Sec. 7, Rule 8, AM No.
09-6-8-SC).

Q; What may the petitioner do after the execution of

judgment?

A: The petitioner may submit its comments or observations

on the execution of the judgment (Sec. 7, Rule 8, AM No.
09-6-8-SC).

Q: When must return of the writ be made?

A: Upon full satisfaction of judgment a final return of the

writ shall be made by the respondent (Sec. 8, Rule 8, AM
No. 09-6-78-SC).

Note: If the court finds that judgment has been fully implemented,
the satisfaction of judgment shall be entered in the court docket
(Sec. 8, Rule 8, AM No. 09-6-8-SC).

UNIVERSITY OF SANTO TOMAS 448

2013 GOLDEN NOTES
 RULE OF PROCEDURE FOR ENVIRONMENTAL CASES
Q: Distinguish Writ of Continuing Mandamus from Writ of Kalikasan
A:
Writ of Continuing Mandamus
Subject matter Directed against (a) the unlawful
neglect in the performance of an act
which the law specifically enjoins as a
duty resulting from an office, trust or
station in connection with the
enforcement or violation of an
environmental law rule or regulation or
a right therein; or (b) the unlawfully
exclusion of another from the use or
enjoyment of such right and in both
instances, there is no other plain,
speedy and adequate remedy in the
ordinary course of law.
Who May File Available only to one who is personally
aggrieved by the unlawful act or
omission.
Respondent Only the government or its officers
Exemption from Exempted
docket fees.
Venue May be filed in the following: (a) the
Regional Trial Court exercising
jurisdiction over the territory where
the actionable neglect or omission
occurred; (b) the Court
of Appeals; or (c) the Supreme Court
Discovery measures Does not contain any provision for
discovery measures
Damages for Allows damages for the malicious
personal injury neglect of the performance of the legal
duty of the respondent, identical to
Rule 65, Rules of Court
(Annotation to the Rules of Procedure for Environmental Cases)
CRIMINAL PROCEDURE
WHO MAY FILE
Q: Who may file a criminal complaint under this Rule?
A: Any offended party, peace officer or any public officer
charged with the enforcement of an environmental law
(Sec. 1, Rule 9, AM No. 09-6-8-SC).
449
Writ of Kalikasan
A Writ of Kalikasan is available against an
unlawful act or omission of a public
official or employee, or private individual
or entity, involving environmental
damage of such magnitude as to
prejudice the life, health or property of
inhabitants in two or more cities or
provinces. In addition, magnitude of
environmental damage is a condition sine
qua non in a petition for the issuance of a
Writ of Kalikasan and must be contained
in the verified petition.
Available to a broad range of persons
such as natural or juridical person, entity
authorized by law, peoples organization,
non-governmental organization, or any
public interest group accredited by or
registered with any government agency,
on behalf of persons whose right to a
balanced and healthful ecology is
violated or threatened to be violated.
May be a private individual or entity
Exempted
Can only be filed the in Supreme Court or
any of the stations of the Court of
Appeals
Uses discovery measures such as ocular
inspection order and production order
No damages may be awarded in a
petition for the issuance of a Writ of
Kalikasan consistent with the public-
interest character of the petition. A party
who avails of this petition but who also
wishes to be indemnified for injuries
suffered may file another suit for the
recovery of damages since the Rule on
the Writ of Kalikasan allows for the
institution of separate actions
Q: Will an action prosper without a private offended
party?
A: Yes. In criminal cases, where there is no private offended
party, a counsel whose services are offered by any person
or organization may be allowed by the court as special
prosecutor, with the consent of and subject to the control
and supervision of the public prosecutor (Sec. 3, Rule 9, AM
No. 09-6-8-SC).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
INSTITUTION OF CIVIL AND CRIMINAL ACTION
Q: Can the complainant institute a civil action for recovery
of damages separately from the criminal action?
A: Yes.
1. Complainant can institute civil action for recovery of
damages before the criminal action.
2. Complainant can reserve right to separately institute
the civil action from the criminal action.
Note: This right may be waivced by the complainant. (Sec 1,
Rule 10, AM No. 09-6-8-SC).
Q: When should the reservation be made?
A: During arraignment except when the civil action has
been instituted prior to the criminal action (Sec 1, Rule 10,
AM No. 09-6-8-SC).
Q: To whom are the damages awarded?
A: The private offended party. If there is none, the damages
less the filing fees, shall accrue to the funds of the agency
charged with the implementation of the environmental law
violated (Sec. 1, Rule 10, AM No. 09-6-8-SC).
Note: The awarded damages shall be used for the restoration and
rehabilitation of the environment adversely affected (Sec. 1, Rule
10, AM No. 09-6-8-SC).
ARREST WITHOUT WARRANT, WHEN VALID
Q: When is an arrest without a warrant lawful?
A:
1. When, in his presence, the person to be arrested has
committed, is actually committing or is attempting to
commit an offense; or
2. When an offense has just been committed, and he has
probable cause to believe based on personal
knowledge of facts or circumstances that the person to
be arrested has committed it.
Individuals deputized by the proper government agency
who are enforcing environmental laws shall enjoy the
presumption of regularity under Section 3(m), Rule 131 of
the Rules of Court when effecting arrests for violations of
environmental laws (Sec. 1, Rule 11, AM No. 09-6-8-SC).
PROCEDURE IN THE CUSTODY AND DISPOSITION OF
SEIZED ITEMS
Q: What procedure takes place in the absence of
applicable laws or rules promulgated by the concerned
government agency?
A:
1. The apprehending officer having initial custody
and control of the seized items, equipment,
paraphernalia, conveyances and instruments shall
physically inventory and whenever practicable,
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
photograph the same in the presence of the person
from whom such items were seized.
2. Thereafter, the apprehending officer shall submit
to the issuing court the return of the search warrant
within five (5) days from date of seizure or in case of
warrantless arrest, submit within five (5) days from
date of seizure, the inventory report, compliance
report, photographs, representative samples and
other pertinent documents to the public prosecutor
for appropriate action.
3. Upon motion by any interested party, the court
may direct the auction sale of seized items,
equipment, paraphernalia, tools or instruments of the
crime. The court shall, after hearing, fix the minimum
bid price based on the recommendation of the
concerned government agency. The sheriff shall
conduct the auction.
4. The auction sale shall be with notice to the
accused, the person from whom the items were
seized, or the owner thereof and the concerned
government agency.
5. The notice of auction shall be posted in three
conspicuous places in the city or municipality where
the items, equipment, paraphernalia, tools or
instruments of the crime were seized.
6. The proceeds shall be held in trust and deposited
with the government depository bank for disposition
according to the judgment (Sec. 2, Rule 12, AM No. 09-
6-8-SC).
Q: What are the two aspects of seizure emphasized in the
provisions?
A: The first aspect concerns the chain of custody of the
seized items, equipment, paraphernalia, conveyances, and
instruments. Subparagraphs (a) and (b) are meant to assure
the integrity of the evidence after seizure, for later
presentation at the trial. The second aspect deals with the
disposition of the seized materials. This addresses the
concern of deterioration of the materials, most of which are
perishable, while in custodia legis (Annotation to the Rules
of Procedure for Environmental Cases).
BAIL
Q: Where must bail be filed?
A: It is filed with the court where the case is pending, or in
the absence or unavailability of the judge thereof, with any
regional trial judge, metropolitan trial judge, municipal trial
judge or municipal circuit trial judge in the province, city or
municipality.
If the accused is arrested in a province, city or municipality
other than where the case is pending, bail may also be filed
with any Regional Trial Court of said place, or if no judge
thereof is available, with any metropolitan trial judge,
municipal trial judge or municipal circuit trial judge therein.
If the court grants bail, the court may issue a hold-
departure order in appropriate cases (Sec. 1, Rule 14, AM
No. 09-6-8-SC).
450
 JUDICIAL AFFIDAVIT RULE
Q: What must the court do before granting the bail
application?
A: The judge must read the information to the accused in a
language known to and understood by the accused (Sec. 2,
Rule 14, AM No. 09-6-8-SC).
Q: What are the contents of the written undertaking
which the accused must sign?
A:
1. To appear before the court that issued the
warrant of arrest for arraignment purposes on the
date scheduled, and if the accused fails to appear
without justification on the date of arraignment,
accused waives the reading of the information and
authorizes the court to enter a plea of not guilty on
behalf of the accused and to set the case for trial;
2. To appear whenever required by the court where
the case is pending; and
3. To waive the right of the accused to be present at
the trial, and upon failure of the accused to appear
without justification and despite due notice, the trial
may proceed in absentia (Sec. 2, Rule 14, AM No. 09-6-
8-SC).
Note: A key innovation in this section is the execution of an
undertaking by the accused and counsel, empowering the judge to
enter a plea of not guilty, in the event the accused fails to appear
at the arraignment (Annotation to the Rules of Procedure for
Environmental Cases).
ARRAIGNMENT AND PLEA
Q: When shall the court set the arraignment of the
accused?
A: Within 15 days from the time it acquires jurisdiction over
the accused (Sec. 1, Rule 15, AM No. 09-6-8-SC).
Note: Notice that plea bargaining will be entertained on the date
of arraignment must be sent to the public prosecutor, the offended
party and the government agency concerned.
Q: What is the duty of the court when the prosecution and
offended party or concerned government agency agree to
the plea offered by the accused?
A:
1. Issue an order which contains the plea-bargaining
arrived at;
2. Proceed to receive evidence on the civil aspect of
the case, if any; and
3. Render and promulgate judgment of conviction,
including the civil liability for damages (Sec. 2, Rule 15,
AM No. 09-6-8-SC).
PRE-TRIAL
Q: When should the pre-trial conference take place?
A: It shall take place within 30 days from arraignment. The
court may also refer the case to the branch clerk of court
451
for preliminary conference at least 3 days before the pre-
trial conference (Sec. 1, Rule 16, AM No. 09-6-8-SC).
Q: What are the purposes of the preliminary conference?
A:
1. To assist the parties in reaching a settlement of the
civil aspect of the case;
2. To mark the documents to be presented as exhibits;
3. To attach copies thereof to the records after
comparison with the originals;
4. To ascertain from the parties the undisputed facts and
admissions on the genuineness and due execution of
documents marked as exhibits;
5. To consider such other matters as may aid in the
prompt disposition of the case;
6. To record the proceedings during the preliminary
conference in the Minutes of Preliminary Conference
to be signed by the parties and counsel;
7. To mark the affidavits of witnesses which shall be in
question and answer form and shall constitute the
direct examination of the witnesses; and
8. To attach the Minutes and marked exhibits to the case
record before the pre-trial proper.
Q: What is the duty of the court during pre-trial?
A:
1. Place the parties and their counsels under oath;
2. Adopt the minutes of the preliminary conference as
part of the pre-trial proceedings, confirm markings of
exhibits or substituted photocopies and admissions on
the genuineness and due execution of documents, and
list object and testimonial evidence;
3. Scrutinize the information and the statements in the
affidavits and other documents which form part of the
record of the preliminary investigation together with
other documents identified and marked as exhibits to
determine further admissions of facts as to:
a. The courts territorial jurisdiction relative to the
offense(s) charged;
b. Qualification of expert witnesses; and
c. Amount of damages;
4. Define factual and legal issues;
5. Ask parties to agree on the specific trial dates and
adhere to the flow chart determined by the court
which shall contain the time frames for the different
stages of the proceeding up to promulgation of
decision;
6. Require the parties to submit to the branch clerk of
court the names, addresses and contact numbers of
witnesses that need to be summoned by subpoena;
and
7. Consider modification of order of trial if the accused
admits the charge but interposes a lawful defense
(Sec. 13, Rule 16, AM No. 09-6-8-SC).
Q: To whom should the questions be directed?
A: The court (Sec 14, Rule 16, AM No. 09-6-8-SC).
UNIVERSITY OF SANTO TOMAS
FACULTY OF CIVIL LAW
 REMEDIAL LAW
Q: Can an agreement or admission made or entered
during the pre-trial conference not reduced into writing
and signed by the accused and counsel be used against the
accused?
A: No (Sec. 5, Rule 16, AM No. 09-6-8-SC).
Note: The agreements covering the matters referred to in
Section 1, Rule 118 of the Rules of Court shall be approved
by the court.
Q: Should the proceedings be recorded?
A: All proceedings during the pre-trial shall be recorded, the
transcripts prepared and the minutes signed by the parties
or their counsels (Sec. 6, Rule 16, AM No. 09-6-8-SC).
Q: What does the pre-trial order contain?
A: Within 10 days after termination of the pre-trial, the
court shall issue a pre-trial order containing:
1. The actions taken during the pre-trial conference;
2. The facts stipulated;
3. The admissions made;
4. Evidence marked;
5. Number of witnesses to be presented; and
6. Schedule of trial (Sec. 7, Rule 16, AM No. 09-6-8-SC).
SUBSIDIARY LIABILITIES
Q: When may subsidiary liability be recovered?
A: Under Art. 102 and 103 of the RPC, liability may be
enforced the person or corporation subsidiarily liable upon
motion of the person entitled to recover such award in case
of conviction of the accused (Sec. 1, Rule 18, AM No. 09-6-
8-SC).
Q: What are the factors that the courts may consider in
applying the precautionary principle?
A:
1. Threats to human life or health;
2. Inequity to present or future generations; or
3. Prejudice to the environment without legal
consideration of the environmental rights of those
affected (Sec. 2, Rule 20, AM No. 09-6-8-SC).
DOCUMENTARY EVIDENCE
Q: When are photographs, videos and other similar
evidence admissible under this Rule?
A: Photographs, videos and similar evidence of events, acts,
transactions of wildlife, wildlife by-products or derivatives,
forest products or mineral resources subject of a case shall
be admissible when authenticated by the person who took
the same, by some other person present when said
evidence was taken, or by any other person competent to
testify on the accuracy thereof (Sec. 1, Rule 21, AM No. 09-
6-8-SC).
Q: Are entries in official records prima facie evidence of
the facts stated therein?
A: Entries in official records made in the performance of his
duty by a public officer of the Philippines, or by a person in
performance of a duty specially enjoined by law, are prima
facie evidence of the facts therein stated (Sec. 2, Rule 21,
AM No. 09-6-8-SC).

Note: This provision codifies the ratio decidendi in Philippine Rabbit

Bus Lines v. Court of Appeals (G.R. No. 147703, April 14, 2004) and
applies the principle therein to environmental criminal cases, to
facilitate recovery of damages and other relief from persons
subsidiarily liable in the event of insolvency of the accused
(Annotation to the Rules of Procedure for Environmental Cases).

EVIDENCE

PRECAUTIONARY PRINCIPLE

Q: What is the precautionary principle?

A: The court in upholding the constitutional right of the

people to a balanced and healthful ecology shall give the
evidence presented the benefit of the doubt even when
there is a lack of full scientific certainty in establishing a
causal link between human activity and the environmental
effect (Sec. 1, Rule 20, AM No. 09-6-8-SC).

Note: For purposes of evidence, the precautionary principle should

be treated as a principle of last resort, where application of the
regular Rules of Evidence would cause in an inequitable result for
the environmental plaintiff (Annotation to the Rules of Procedure
for Environmental Cases).

UNIVERSITY OF SANTO TOMAS 452

2013 GOLDEN NOTES
 JUDICIAL AFFIDAVIT RULE
JUDICIAL AFFIDAVIT RULE
A.M. No. 12-8-8-SC (5) The special courts and quasi-judicial bodies, whose rules
of procedure are subject to disapproval of the Supreme
Scope Court, insofar as their existing rules of procedure
contravene the provisions of this Rule (Sec. 1).
Q: What is the effect of the judicial affidavit rule (JAR) in
our judicial system? Note: While in civil cases (with the exception of small claims) the
application of the JAR is mandatory regardless of the amount of
A: It signals a dramatic shift from a dominantly adversarial money claimed, in criminal cases, its application is limited to those
offenses punishable by a maximum of 6 years or less, unless the
system to a mix adversarial and inquisitorial system
accused agrees to its use.
(Associate Justice Roberto Abad, UST Law Review Chief
Justice Andres Narvasa Honorary Lecture, February 15,
Q: What are the requirements of the judicial affidavit rule
2013, Faculty of Civil Law, UST).
which the parties are bound to follow?
Q: What are the notable changes made by the judicial
A: The parties shall file with the court and serve on the
affidavit rule?
adverse party, personally or by licensed courier service, not
later than five days before pre-trial or preliminary
A:
conference or the scheduled hearing with respect to
1. Testimonies are now allowed to be taken and kept in the
motions and incidents, the following:
dialect of the place provided they are subsequently
translated into English or Filipino. These will be quoted in
(1) The judicial affidavits of their witnesses, which shall take
pleadings in their original version with the English or
the place of such witnesses' direct testimonies; and
Filipino translation in parenthesis provided by the party,
subject to counter translation by opposing side.
(2) The parties' documentary or object evidence, if any,
which shall be attached to the judicial affidavits and marked
2. In civil actions, the judicial affidavit rule requires the
as Exhibits A, B,
parties to lay their cards on the table before pre-trial by
C, and so on in the case of the complainant or the plaintiff,
submitting the judicial affidavits and documents of the
and as Exhibits 1, 2, 3, and so on in the case of the
parties and their witnesses and serving copies on the
respondent or the defendant (Sec. 2).
adverse party at least 5 days before the pre-trial. No
further stipulations of facts are needed at the pre-trial
Q: Is an original copy required to be always attached as
since, by comparing the judicial affidavits of the opposing
documentary evidence?
sides, the court will already see what matters they agree
and on what matters they dispute.
A: No. A party or a witness may keep the original document
or object evidence in his possession after the same has
3. The court will already take active part in examining the
been identified, marked as exhibit, and authenticated, but
witnesses. The judge will no longer be limited to asking
he must warrant in his judicial affidavit that the copy or
clarificatory questions; he can also ask questions that will
reproduction attached to such affidavit is a faithful copy or
determine the credibility of the witness, ascertain the truth
reproduction of that original. In addition, the party or
of his testimony and elicit the answers that the judge needs
witness shall bring the original document or object
for resolving issues (Associate Justice Roberto Abad, UST
evidence for comparison during the preliminary conference
Law Review Chief Justice Andres Narvasa Honorary
with the attached copy, reproduction, or pictures, failing
Lecture, February 15, 2013, Faculty of Civil Law, UST).
which the latter shall not be admitted (Sec. 2).
Q: In what cases is the judicial affidavit rule applicable?
Contents and Procedure
A: It shall be applicable to all actions, proceedings, and
Q: What must a judicial affidavit contain?
incidents requiring the reception of evidence before:
A: A judicial affidavit shall be prepared in the language
(1) The Metropolitan Trial Courts, the Municipal Trial Courts
known to the witness and, if not in English or Filipino,
in Cities, the Municipal Trial Courts, the Municipal Circuit
accompanied by a translation in English or Filipino, and
Trial Courts, and the Shari' a Circuit Courts but shall not
shall contain the following:
apply to small claims cases
(a) The name, age, residence or business address, and
(2) The Regional Trial Courts and the Shari' a District Courts;
occupation of the witness;
(3) The Sandiganbayan, the Court of Tax Appeals, the Court
(b) The name and address of the lawyer who conducts or
of Appeals, and the Shari' a Appellate Courts;
supervises the examination of the witness and the place
where the examination is being held;
(4) The investigating officers and bodies authorized by the
Supreme Court to receive evidence, including the
(c) A statement that the witness is answering the questions
Integrated Bar of the
asked of him, fully conscious that he does so under oath,
Philippine (IBP); and

453 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
and that he may face criminal liability for false testimony or
perjury;
(d) Questions asked of the witness and his corresponding
answers, consecutively numbered, that:
(i) Show the circumstances under which the witness
acquired the facts upon which he testifies;
(ii) Elicit from him those facts which are relevant to the
issues that the case presents; and
(iii) Identify the attached documentary and object
evidence and establish their authenticity in accordance
with the Rules of Court;
(e) The signature of the witness over his printed name; and
(f) A jurat with the signature of the notary public who
administers the oath or an officer who is authorized by law
to administer the same (Sec. 3)
Q: What is the duty of the lawyer who conducted the
examination of a witness?
A: The judicial affidavit shall contain a sworn attestation at
the end, executed by the lawyer who conducted or
supervised the examination of the witness, to the effect
that:
(1) He faithfully recorded or caused to be recorded the
questions he asked and the corresponding answers that the
witness gave; and
(2) Neither he nor any other person then present or
assisting him coached the witness regarding the latter's
answers (Sec. 4).
Q: How is trial conducted under the judicial affidavit rule?
A: After submitting to the court and serving the adverse
party a copy of the judicial affidavits of the witnesses of a
party and attaching therein documentary or object
evidence not later than five days before pre-trial or
preliminary conference or the scheduled hearing with
respect to motions and incidents trial shall commence as
follows:
a. The party presenting the judicial affidavit of his witness in
place of direct testimony shall state the purpose of such
testimony at the start of the presentation of the witness
(Sec.6).
b. The adverse party may move to disqualify the witness or
to strike out his affidavit or any of the answers found in it
on ground of inadmissibility.
Note: The court shall promptly rule on the motion and, if
granted, shall cause the marking of any excluded answer by
placing it in brackets under the initials of an authorized court
personnel, without prejudice to the tender of excluded
evidence under Sec. 40, Rule 132.
UNIVERSITY OF SANTO TOMAS
2013 GOLDEN NOTES
c. The adverse party shall have the right to cross-examine
the witness on his judicial affidavit and on the exhibits
attached to the same (Sec. 7).
d. The party who presents the witness may examine him on
re-direct (Sec. 7).
Note: In every case, the court shall take active part in
examining the witness to determine his credibility as well as
the truth of his testimony and to elicit the answers that it
needs for resolving the issues.
e. Upon the termination of the testimony of his last
witness, a party shall immediately make an oral offer of
documentary evidence, piece by piece, in their
chronological order, stating the purpose or purposes for
which he offers the particular exhibit (Sec. 8).
f. After each piece of exhibit is offered, the adverse party
shall state the legal ground for his objection, if any, to its
admission, and the court shall immediately make its ruling
respecting that exhibit (Sec. 8).
Note: Since the documentary or object exhibits form part of
the judicial affidavits that describe and authenticate them, it
is sufficient that such exhibits are simply cited by their
markings during the offers, the objections, and the rulings,
dispensing with the description of each exhibit (Sec. 8).
Application to Criminal Actions
The judicial affidavit rule shall apply to all criminal actions:
(1) Where the maximum of the imposable penalty does not
exceed six years;
(2) Where the accused agrees to the use of judicial
affidavits, irrespective of the penalty involved; or
(3) With respect to the civil aspect of the actions, whatever
the penalties involved are (Sec. 9).
Q: Can a party filing a criminal action cognizable by the
Regional Trial Court be mandated to follow the JAR?
A: No. The jurisdiction of the Regional Trial Court in criminal
cases includes offenses where the imposable penalty
exceeds 6 years, thus, as a rule the JAR has no application
except when the accused agrees to its use.
Q: When must the judicial affidavit be submitted by the
prosecution?
A: The prosecution shall submit the judicial affidavits of its
witnesses not later than five days before the pre-trial,
serving copies of the same upon the accused. The
complainant or public prosecutor shall attach to the
affidavits such documentary or object evidence as he may
have, marking them as Exhibits A, B, C, and so on. No
further judicial affidavit, documentary, or object evidence
shall be admitted at the trial (Sec. 9).
454
 JUDICIAL AFFIDAVIT RULE
Q: Is it likewise mandatory on the part of the accused to
submit a judicial affidavit?
A: No. If the accused desires to be heard on his defense
after receipt of the judicial affidavits of the prosecution, he
shall have the option to submit his judicial affidavit as well
as those of his witnesses to the court within ten days from
receipt of such affidavits and serve a copy of each on the
public and private prosecutor, including his documentary
and object evidence previously marked as Exhibits 1, 2, 3,
and so on. These affidavits shall serve as direct testimonies
of the accused and his witnesses when they appear before
the court to testify (Sec. 9).
3. The court shall not admit as evidence judicial affidavits
that do not conform to the content requirements of Section
3 and the attestation requirement of Section 4 above. The
court may, however, allow only once the subsequent
submission of the complaint replacement affidavits before
the hearing or trial provided the delay is for a valid reason
and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible
for their preparation and submission pays a fine of not less
than P1,000.00 nor more than P5,000.00, at the discretion
of the court (Sec. 10).
Effect on other Rules

Q: The JAR took effect last January 1, 2013, but with some As to Rules of Court and rules of procedure governing
modification as to its applicability to criminal cases. What investigating officers and bodies authorized by the
are these modifications? Supreme Court to receive evidence

A: The JAR is modified until December 31, 2013 only with They are repealed or modified insofar as they are
respect to actions filed by public prosecutors, subject to the inconsistent with the provisions of the judicial affidavit rule
following conditions: (Sec. 11).

1. For the purpose of complying with the Judicial Affidavit As to Rules of procedure governing quasi judicial bodies
Rule, public prosecutors in the first and second level courts which are inconsistent with it
shall use the sworn statements that the complainant and
his or her witnesses submit during the initiation of the They are thereby disapproved (Sec. 11)
criminal action before the office of the public prosecutor or
directly before the trial court.

2. Upon presenting the witness, the attending public

prosecutor shall require the witness to affirm what the
sworn statement contains and may only ask the witness
additional direct examination questions that have not been
amply covered by the sworn statement.

3. This modified compliance does not apply to criminal

cases where the complainant is represented by a duly
empowered private prosecutor. The private prosecutor
shall be charged in the applicable cases the duty to prepare
the required judicial affidavits of the complainant and his or
her witnesses and cause the service of the copies of the
same upon the accused. (Unsigned Res., AM No 12-8-8-
SC, Judicial Affidavit Rule, January 8, 2012)

Effect of non-compliance with the Judicial Affidavit Rule

1. A party who fails to submit the required judicial affidavits

and exhibits on time shall be deemed to have waived their
submission. The court may, however, allow only once the
late submission of the same provided, the delay is for a
valid reason, would not unduly prejudice the opposing
party, and the defaulting party pays a fine of not less than
P1,000.00 nor more than P5,000.00, at the discretion of the
court.

2. The court shall not consider the affidavit of any witness

who fails to appear at the scheduled hearing of the case as
required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's
right to confront by cross-examination the witnesses there
present.

455 UNIVERSITY OF SANTO TOMAS

FACULTY OF CIVIL LAW
 REMEDIAL LAW
EFFICIENT USE OF PAPER RULE b. In the Court of Appeals and the Sandiganbayan, one
A.M. No. 11-9-4-SC original (properly marked) and two copies, with their
annexes;
Q: Under this rule, what are the format and style to be
followed when filing a pleading, motion or similar papers c. In the Court of Tax Appeals, one original (properly
(court bound papers) before the court? marked) and two copies, with annexes. On appeal to the En
Banc, one original (properly marked) and eight copies with
A: They shall be written in annexes; and

a. Single space with a one and- a-half space between d. In other courts, one original (properly marked) with the
paragraphs, stated annexes attached to it (Sec. 5).

b. Easily readable font style of the party's choice,
c. 14-size font, and
d. on a 13-inch by 8.5-inch white bond paper (Sec. 3)
e. Every page must be consecutively numbered with the
parties observing the following margins:
i. a left hand margin of 1.5 inches from the edge;
ii. an upper margin of 1.2 inches from the edge;
iii. a right hand margin of 1.0 inch from the edge;
iv. a lower margin of 1.0 inch from the edge. (Sec. 4)
Q: What other papers are covered by the Rule aside from
pleadings filed by a party?
A: All decisions, resolutions, and orders issued by courts
and by quasi-judicial bodies under the administrative
supervision of the Supreme Court shall comply with these
requirements. Similarly covered are the reports submitted
to the courts and transcripts of stenographic notes (Sec. 3).
Note: In preparation for the eventual establishment of an e-filing
paperless system in the Judiciary, the Supreme Court, through its
Management Information System Office, has set up the e-mail
address efile@sc.judiciary.gov.ph.E-filing, under the Rule, requires
parties before the Supreme Court to submit, simultaneously with
their court-bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by e-mail to the Courts e-
mail address or by compact disc (CD).
Q: What is the rule on service of annexes on the adverse
party?
A: A party required by the rules to serve a copy of his court-
bound paper on the adverse party need not enclose copies
of those annexes that based on the record of the court such
party already has in his possession. In the event a party
requests a set of the annexes actually filed with the court,
the party who filed the paper shall comply with the request
within five days from receipt (Sec. 6).

Q: How many copies of court bound papers must be filed?

A: Unless otherwise directed by the court, the number of

court bound papers that a party is required or desires to file
shall be as follows:

a. In the Supreme Court, one original (properly marked) and

four copies, unless the case is referred to the Court En
Banc, in which event, the parties shall file ten additional
copies. (It is therefore a total of 14 copies and one original)

For the Division and En Banc, the parties need to

submit only two sets of annexes, one attached to the
original and an extra copy. All members of the Court shall
share the extra copies of annexes in the interest of
economy of paper.

Parties to cases before the Supreme Court are

further required, on voluntary basis for the first six months
following the effectivity (it took effect last January 1, 2013)
of this Rule and compulsorily afterwards unless the period
is extended, to submit, simultaneously with their court-
bound papers, soft copies of the same and their annexes
(the latter in PDF format) either by email to the Court's e-
mail address or by compact disc (CD). This requirement is in
preparation for the eventual establishment of an e-filing
paperless system in the judiciary.

UNIVERSITY OF SANTO TOMAS 456

2013 GOLDEN NOTES