CIVIL PROCEDURE

Actions........................................................14
ACTION VS CAUSE OF ACTION......................14
General Principles.......................2
CONCEPT OF REMEDIAL LAW.........................2 MEANING OF ORDINARY CIVIL ACTIONS....14
CONCEPT....................................................................2
APPLICABILITY...........................................................2 MEANING OF SPECIAL CIVIL ACTIONS........14
PROSPECTIVITY/RETROACTIVITY............................... 2
MEANING OF CRIMINAL ACTIONS.................14
SUBSTANTIVE LAW AS DISTINGUISHED FROM
REMEDIAL LAW.....................................................2 CIVIL ACTIONS VERSUS
REMEDIAL LAW OR PROCEDURAL LAW......................2 SPECIAL PROCEEDINGS..................................14
DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL
SUBSTANTIVE LAW..................................................... 2
PROCEEDINGS.......................................................... 14

RULE-MAKING POWER OF THE SUPREME COURT2

LIMITATIONS ON THE RULE-MAKING POWER OF THE
PERSONAL ACTIONS AND REAL ACTIONS 15
IMPORTANCE OF DISTINCTION..................................15
SUPREME COURT....................................................... 2
POWER OF THE SUPREME COURT TO AMEND AND SUSPEND
LOCAL AND TRANSITORY ACTIONS.............15
PROCEDURAL RULES................................................. 2

NATURE OF PHILIPPINE COURTS...................3 Cause of Action.............................16

MEANING OF A COURT............................................... 3
COURT AS DISTINGUISHED FROM A JUDGE............... 3
CLASSIFICATION OF PHILIPPINE COURTS...................3
COURTS OF ORIGINAL AND APPELLATE JURISDICTION. .4
COURTS OF GENERAL AND SPECIAL JURISDICTION. .4
CONSTITUTIONAL AND STATUTORY COURTS.............4
COURTS OF LAW AND EQUITY....................................4
PRINCIPLE OF JUDICIAL HIERARCHY......................... 4
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF
JUDICIAL STABILITY................................................... 4
Jurisdiction..............................................4
JURISDICTION.......................................................4
JURISDICTION IN GENERAL.............................4
JURISDICTION OVER THE PARTIES.............................4
JURISDICTION OVER THE SUBJECT MATTER.............5
JURISDICTION OVER THE ISSUES...............................6
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
SPECIFIC JURISDICTION....................................7
JURISDICTION OF COURTS.........................................7
MEANING OF CAUSE OF ACTION..................16
ELEMENTS OF A CAUSE OF ACTION............16
RIGHT OF ACTION VERSUS CAUSE OF ACTION . 16
FAILURE TO STATE A CAUSE OF ACTION...17
TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION...................................................................17
SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS................................................................17
EFFECTS OF SPLITTING A CAUSE OF ACTION...........17
BASIS........................................................................17
PURPOSE.................................................................. 17
JOINDER AND MISJOINDER OF CAUSES OF
ACTION...................................................................17
6 JOINDER OF CAUSE OF ACTION................................17
PURPOSES................................................................17
REQUISITES...............................................................17
MISJOINDER OF CAUSES OF ACTION........................ 17

JURISDICTION OVER SMALL CLAIMS, CASES Parties to Civil Actions........18

COVERED BY THE RULES ON SUMMARY
PROCEDURE AND BARANGAY CONCILIATION . 13
DEFINITION................................................................13
PURPOSE.................................................................. 13
SCOPE.......................................................................13
APPLICABILITY..........................................................13
PROHIBITED PLEADINGS.......................................... 14
TOTALITY RULE.........................................................14
REQUIREMENTS FOR A PERSON TO BE A PARTY
TO A CIVIL ACTION.............................................18
PARTIES TO A CIVIL ACTION...........................19
REAL PARTIES IN INTEREST; INDISPENSABLE
PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS..........................19
REAL PARTY IN INTEREST.........................................19
INDISPENSABLE PARTIES.........................................20
REPRESENTATIVE AS PARTIES.................................20
NECESSARY PARTY..................................................20
INDIGENT PARTY......................................................20
ALTERNATIVE DEFENDANTS.................................... 20
COMPULSORY AND PERMISSIVE JOINDER OF
PARTIES.................................................................21
COMPULSORY JOINDER OF INDISPENSABLE PARTIES
..................................................................................21
PERMISSIVE JOINDER............................................... 21
MISJOINDER AND NON-JOINDER
OF PARTIES.........................................................21
CLASS SUIT..........................................................21
REQUISITES...............................................................21
CLASS SUIT AND DERIVATIVE SUIT, COMPARED......22
SUITS AGAINST ENTITIES WITHOUT JURIDICAL
PERSONALITY.....................................................22
REQUISITES..............................................................22
EFFECT OF DEATH OF PARTY LITIGANT....22
SUBSTITUTION OF PARTIES......................................22
ACTION ON CONTRACTUAL MONEY CLAIMS............22
TRANSFER OF INTEREST DURING THE PENDENCY OF THE
ACTION.....................................................................22
Venue..........................................................23
VENUE VERSUS JURISDICTION....................23
DISTINCTIONS BETWEEN VENUE AND JURISDICTION
.................................................................................23
VENUE OF REAL ACTIONS..............................23
VENUE OF PERSONAL ACTIONS..................23
VENUE OF ACTIONS
AGAINST NON-RESIDENTS.............................24
WHEN THE RULES ON VENUE
DO NOT APPLY....................................................24
EFFECTS OF STIPULATIONS ON VENUE....24
OTHER RULES ON VENUE..............................24
Pleadings..............................................24
DEFINITION..........................................................24
KINDS OF PLEADINGS......................................25
PLEADINGS ALLOWED..............................................25
COMPLAINT..............................................................25
ANSWER...................................................................25
COUNTERCLAIMS.....................................................25
CROSS-CLAIMS.........................................................27
THIRD (FOURTH, ETC.) PARTY COMPLAINTS............27
COMPLAINT-IN-INTERVENTION.................................28
REPLY.......................................................................28
PLEADINGS ALLOWED IN SMALL CLAIM CASES
AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE..................................28
PROHIBITED PLEADINGS, MOTIONS OR PETITIONS. 28
FORMS USED UNDER THE RULE OF PROCEDURE UNDER
SMALL CLAIMS CASES.............................................29
PROHIBITED PLEADINGS AND MOTIONS.................. 29
PARTS OF A PLEADING....................................29
CAPTION...................................................................29
BODY........................................................................29
SIGNATURE AND ADDRESS...................................... 29
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING................................................................29
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING 30
ALLEGATIONS IN A PLEADING......................30
MANNER OF MAKING ALLEGATIONS........................30
PLEADING AN ACTIONABLE DOCUMENT...................31
SPECIFIC DENIALS.................................................... 31
EFFECT OF FAILURE TO PLEAD....................32
FAILURE TO PLEAD DEFENSES AND OBJECTIONS...32
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM...........................................................32
DEFAULT...............................................................32
WHEN A DECLARATION OF DEFAULT IS PROPER......32
EFFECT OF AN ORDER OF DEFAULT.........................32
RELIEF FROM AN ORDER OF DEFAULT..................... 33
EFFECT OF A PARTIAL DEFAULT...............................33
EXTENT OF RELIEF...................................................33
ACTIONS WHERE DEFAULT ARE NOT ALLOWED.......33
FILING AND SERVICE OF PLEADINGS.........34
DEFINITION...............................................................34
PAPERS REQUIRED TO BE FILED AND SERVED........34
PAYMENT OF DOCKET FEES.....................................34
FILING VERSUS SERVICE OF PLEADINGS.................35
PERIODS OF FILING OF PLEADINGS......................... 35
MANNER OF FILING.................................................. 35
MODES OF SERVICE.................................................36
AMENDMENT........................................................37
HOW TO AMEND PLEADINGS....................................37
AMENDMENT AS A MATTER OF RIGHT......................38
AMENDMENTS BY LEAVE OF COURT........................38
FORMAL AMENDMENT..............................................38
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE..................................38
DIFFERENT FROM SUPPLEMENTAL PLEADINGS.......38
EFFECT OF AMENDED PLEADING.............................39
Summons..............................................39
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM............................................39
PURPOSE................................................................. 39
ISSUANCE OF SUMMONS..........................................39
CONTENTS OF SUMMONS.........................................39
VOLUNTARY APPEARANCE............................39
GENERAL RULE........................................................39
EXCEPTION...............................................................39
WHO SERVES THE SUMMONS..................................40
RETURN OF SUMMONS............................................40
ALIAS SUMMONS......................................................40
MODES OF SERVICE OF SUMMONS..........................40
PERSONAL SERVICE........................................40
SERVICE IN PERSON ON DEFENDANT......................40
SUBSTITUTED SERVICE..................................40
RATIONALE..............................................................40
CONSTRUCTIVE SERVICE
(BY PUBLICATION).............................................41
REQUISITES..............................................................41
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES 41
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS
ARE UNKNOWN.........................................................41
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES..............................................................41
EXTRA-TERRITORIAL SERVICE,
WHEN ALLOWED................................................41
REQUISITES..............................................................41
MODES OF SERVICE..................................................41
SERVICE UPON PRISONERS AND MINORS 41
SERVICE UPON PRISONER........................................41
SERVICE UPON MINORS AND INCOMPETENTS..........41
PROOF OF SERVICE..........................................41
RETURN OF SERVICE................................................41
PROOF OF SERVICE..................................................41
EFFECT OF NON-SERVICE OF SUMMONS................. 42
WAIVER OF SERVICE OF SUMMONS......................... 42
SERVICE OF SUMMONS UPON
DIFFERENT ENTITIES (ANNEX A).............................. 42
Motions.....................................................42
MOTIONS IN GENERAL.....................................42
DEFINITION OF A MOTION.........................................42
MOTIONS VERSUS PLEADINGS.................................42
CONTENTS AND FORM OF MOTIONS........................ 42
NOTICE OF HEARING AND HEARING OF MOTIONS....43
OMNIBUS MOTION RULE...........................................43
LITIGATED AND EX PARTE MOTIONS........................43
PRO-FORMA MOTIONS............................................. 43
MOTIONS FOR BILL OF PARTICULARS.......43
BILL OF PARTICULARS............................................. 43
PURPOSE AND WHEN APPLIED FOR........................44
ACTIONS OF THE COURT.........................................44
COMPLIANCE WITH THE ORDER AND EFFECT OF NON-
COMPLIANCE...........................................................44
EFFECT ON THE PERIOD TO FILE
A RESPONSIVE PLEADING.......................................44
MOTION TO DISMISS.........................................45
DEFINITION...............................................................45
TYPES OF DISMISSAL OF ACTION.............................45
GROUNDS.................................................................45
RESOLUTION OF MOTION.........................................48
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED...............................................................48
REMEDIES OF THE DEFENDANT
WHEN THE MOTION IS DENIED.................................48
EFFECT OF DISMISSAL OF
COMPLAINT ON CERTAIN GROUNDS........................48
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES . 48
BAR BY DISMISSAL..................................................48
DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER
RULE 33...................................................................49
Dismissal of Actions..............49
DISMISSAL UPON NOTICE BY PLAINTIFF; TWO-
DISMISSAL RULE...............................................49
DISMISSAL UPON PLAINTIFFS NOTICE.................... 49
DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT
ON EXISTING COUNTERCLAIM......................49
DISMISSAL UPON PLAINTIFFS MOTION...................49
DISMISSAL DUE TO THE FAULT OF PLAINTIFF 49
DISMISSAL DUE TO PLAINTIFFS FAULT...................49
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM
OR THIRD-PARTY COMPLAINT......................50
Pre-Trial..................................................50
CONCEPT OF PRE-TRIAL................................50
DEFINITION...............................................................50
NATURE AND PURPOSE..................................50
PURPOSE..........................................................50
NOTICE OF PRE-TRIAL ..................................... 51
APPEARANCE OF PARTIES; EFFECT OF FAILURE
TO APPEAR ......................................................
APPEARANCE OF PARTIES .......................................
FAILURE TO APPEAR AT PRE-TRIAL ...........................
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
APPEAR ...........................................................
52
52
PRE-TRIAL BRIEF ..................................................
52
RECORD OF PRE-TRIAL ...........................................
52
CALENDAR OF CASES .............................................
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE ................ 52
ALTERNATIVE DISPUTE RESOLUTION (ADR) [RA
9285] ...............................................................
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM ? . 53
POLICY BEHIND THE ADR ......................................... 53
EXCEPTION TO THE APPLICATION OF RA 9285: ............ 53
MODES OF ALTERNATIVE DISPUTE RESOLUTIONS : ........ 53
Intervention ......................... 54
DEFINITION OF INTERVENTION .......................
WHO MAY INTERVENE .....................................
MEANING OF LEGAL INTEREST .......................
REQUISITES FOR INTERVENTION ....................
HOW INTERVENTION IS DONE ...................................
FACTORS CONSIDERED IN ALLOWING INTERVENTION ....
PLEADINGS IN INTERVENTION ..................................
TIME TO INTERVENE ........................................
REMEDY FOR THE DENIAL OF MOTION TO
INTERVENE ......................................................
REMEDIES ...........................................................
Subpoena ........................... 55
TYPES (AND DEFINITION) OF SUBPOENA ........
BY WHOM ISSUED ............................................
FORM AND CONTENTS OF SUBPOENA ............
SUBPOENA DUCES TECUM ..............................
SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER FOR
PRODUCTION OR INSPECTION (ANNEX B) ...................
SUBPOENA AD TESTIFICANDUM .....................
SERVICE OF SUBPOENA ...................................
COMPELLING ATTENDANCE OF WITNESSES;
CONTEMPT...........................................................56
PERSONAL APPEARANCE IN COURT........................56
51 APPLICATION FOR SUBPOENA TO PRISONER..........56
51 REMEDY IN CASE OF WITNESS FAILURE TO ATTEND
51 .................................................................................56
QUASHING OF SUBPOENA.............................56
GROUNDS FOR QUASHING.......................................57
Modes of Discovery...............57
DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL.....57
DEPOSITIONS UNDER RULE 23.................................57
WRITTEN INTERROGATORIES UNDER RULE 23........59
DEPOSITIONS BEFORE ACTION UNDER RULE 24.....60
DEPOSITIONS PENDING APPEAL UNDER RULE 24...60
53
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES................................................................60
PURPOSE.................................................................60
PROCEDURE............................................................. 61
ANSWER....................................................................61
EFFECT OF OBJECTIONS TO INTERROGATORIES.....61
NUMBER OF INTERROGATORIES...............................61
54 SCOPE OF INTERROGATORIES..................................61
54 USE OF INTERROGATORIES...................................... 61
FAILURE TO FILE WRITTEN INTERROGATORIES........61
54 CONSEQUENCES OF REFUSAL TO ANSWER.............61
55
REQUEST FOR ADMISSION............................. 61
PURPOSE.................................................................. 61
55
WHEN MAY REQUEST BE MADE................................62
55
IMPLIED ADMISSION BY ADVERSE PARTY................ 62
55
DEFERMENT OF COMPLIANCE................................. 62
55 EFFECT OF ADMISSION............................................ 62
WITHDRAWAL........................................................... 62
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION...............................................................62
55
55
PRODUCTION OR INSPECTION OF DOCUMENTS
OR THINGS...........................................................62
PROCEDURE.............................................................62
WHAT THE COURT MAY ORDER................................ 62
55
56
PHYSICAL AND MENTAL EXAMINATION OF
56 PERSONS..............................................................63
MOTION REQUESTING EXAMINATION.......................63
56 COURT TO ISSUE THE ORDER FOR
EXAMINATION IN ITS DISCRETION............................ 63
REPORT OF FINDINGS.............................................. 63
56 WAIVER OR PRIVILEGE.............................................63
56 PHYSICIAN-PATIENT PRIVILEGE............................... 63
56 CONSEQUENCES OF REFUSAL TO COMPLY WITH
MODES OF DISCOVERY (ANNEX C).................63

Trial.................................................................63
TRIAL, DEFINED..................................................63
NOTICE OF TRIAL..............................................63
ADJOURNMENTS AND POSTPONEMENTS 63
REQUISITES OF MOTION
TO POSTPONE TRIAL.......................................63
SUBPOENA...............................................................64
AGREED STATEMENT OF FACTS..................64
ORDER OF TRIAL; REVERSAL OF ORDER. 64
CONDUCT OF TRIAL................................................. 64
GENERAL ORDER OF TRIAL..................................... 64
CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL..............................................................64
CONSOLIDATION OF TRIAL.......................................64
SEVERANCE OF TRIAL..............................................64
STATEMENT OF JUDGE.............................................65
SUSPENSION OF ACTIONS........................................65
DELEGATION OF RECEPTION OF EVIDENCE
.................................................................................65
TRIAL BY COMMISSIONERS...........................65
KINDS OF TRIAL BY COMMISSIONER........................65
REFERENCE BY CONSENT OR ORDERED ON MOTION
.................................................................................65
POWERS OF THE COMMISSIONER............................65
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT....................................... 65
Demurrer to Evidence.......66
GROUND...............................................................66
DEFINITION...............................................................66
EFFECT OF DENIAL; EFFECT OF GRANT...66
WAIVER OF RIGHT TO PRESENT EVIDENCE
.................................................................................67
DEMURRER TO EVIDENCE IN A CIVIL CASE V.
DEMURRER TO EVIDENCE IN
A CRIMINAL CASE..............................................67
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL
CASES......................................................................67
Judgments and
Final Orders.......................................67
JUDGMENT...........................................................67
REQUISITES OF A VALID JUDGMENT........................ 67
KINDS OF JUDGMENT...............................................67
JUDGMENT WITHOUT TRIAL..........................68
WHEN TRIAL IS NOT NECESSARY.............................68
CONTENTS OF A JUDGMENT.........................68
PARTS OF A JUDGMENT...........................................68
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE
COURT......................................................................69
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY
OF THE DECISION.....................................................69
JUDGMENT ON THE PLEADINGS..................69
GROUNDS.................................................................69
CANNOT BE RENDERED MOTU PROPRIO.................69
WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY . 69
EFFECTS...................................................................69
SUMMARY JUDGMENTS.................................. 69
DEFINITION, NATURE................................................69
GENUINE ISSUE........................................................69
PROCEDURE.............................................................70
FOR THE CLAIMANT................................................. 70
FOR THE DEFENDANT.............................................. 70
WHEN THE CASE NOT FULLY ADJUDICATED............70
AFFIDAVITS AND ATTACHMENTS..............................70
JUDGMENT ON THE PLEADINGS VERSUS
SUMMARY JUDGMENTS...................................71
RENDITION OF JUDGMENTS
AND FINAL ORDERS..........................................71
FORM OF JUDGMENT................................................ 71
DEFINITION OF RENDITION OF JUDGMENT................71
PERIOD WITHIN WHICH DECISION IS TO BE RENDERED
..................................................................................71
INTERPRETATION OF THE JUDGMENT.......................71
ENTRY OF JUDGMENT AND FINAL ORDER 71
DEFINITION OF ENTRY OF JUDGMENT.......................71
ENTRY OF JUDGMENTS AND FINAL ORDERS............71
AMENDMENTS TO JUDGMENT.................................. 72
Post-Judgment Remedies . 72
REMEDIES BEFORE
FINALITY OF JUDGMENT.................................72
MOTION FOR NEW TRIAL OR RECONSIDERATION
72
MOTION FOR RECONSIDERATION.............................72
GROUNDS................................................................. 72
WHEN TO FILE...........................................................72
DENIAL OF THE MOTION; EFFECT.............................73
GRANT OF THE MOTION; EFFECT.............................74
REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY PERIOD
RULE........................................................................74
APPEALS IN GENERAL....................................74
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL
.................................................................................74
MATTERS NOT APPEALABLE....................................75
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE
NOT APPEALABLE....................................................75
MODES OF APPEAL..................................................75
ISSUES TO BE RAISED ON APPEAL..........................84
PERIOD OF APPEAL.................................................84
PERFECTION OF APPEAL.........................................86
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE MTC.....................................86
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE RTC.....................................88
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE CA.......................................89
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE CTA.....................................89
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE COA.....................................89
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE COMELEC...........................90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE CSC.....................................90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE OMBUDSMAN......................90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE NLRC..................................90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF QUASI-JUDICIAL AGENCIES.......91
RELIEF FROM JUDGMENTS, ORDERS AND OTHER
PROCEEDINGS.................................................... 91
GROUNDS FOR AVAILING OF THE REMEDY..............92
TIME TO FILE PETITION.............................................92
CONTENTS OF PETITION...........................................92
ANNULMENT OF JUDGMENTS OR FINAL ORDERS
AND RESOLUTIONS..........................................92
GROUNDS FOR ANNULMENT....................................92
PERIOD TO FILE ACTION...........................................93
EFFECTS OF JUDGMENT OF ANNULMENT................93
COLLATERAL ATTACK OF JUDGMENTS....................93
REMEDIES FROM A VOID JUDGMENT........................93
WHAT IS A VOID JUDGMENT?...................................93
HOW DO YOU ATTACK A VOID JUDGMENT?..............93
WHAT ARE YOUR REMEDIES?.................................. 93
SOME JURISPRUDENTIAL BASIS.............................. 93
Execution, Satisfaction and
Effect of Judgments..............94
DIFFERENCE BETWEEN FINALITY OF JUDGMENT
FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION..........................................................94
WHEN EXECUTION SHALL ISSUE.................94
EXECUTION AS A MATTER OF RIGHT (ANNEX D).....95
DISCRETIONARY EXECUTION (ANNEX E).................95
HOW A JUDGMENT IS EXECUTED................96
EXECUTION BY MOTION OR BY INDEPENDENT ACTION .. 96
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION
.................................................................................96
EXECUTION OF JUDGMENTS FOR MONEY................96
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS. . .98
EXECUTION OF SPECIAL JUDGMENTS.....................99
EFFECT OF LEVY ON THIRD PERSONS..................... 99
PROPERTIES EXEMPT FROM EXECUTION 99
PROCEEDINGS WHERE PROPERTY IS CLAIMED
BY THIRD PERSONS.........................................101
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND
REPLEVIN................................................................ 101
RULES ON REDEMPTION...............................102
EFFECTS OF REDEMPTION..................................... 102
RECOVERY OF PURCHASE PRICE AND
REVIVAL OF JUDGMENT..........................................103
EXAMINATION OF JUDGMENT OBLIGOR WHEN
JUDGMENT IS UNSATISFIED........................104
WHEN EXAMINATION MAY BE MADE.......................104
HOW.......................................................................104
EXAMINATION OF OBLIGOR OF JUDGMENT
OBLIGOR............................................................104
DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS
AFTER THE PROMULGATION OF FINAL AND EXECUTORY
JUDGMENT?...........................................................104
REMEDIES OF JUDGMENT CREDITOR
IN AID OF EXECUTION.............................................104
ENTRY OF SATISFACTION.......................................104
EFFECT OF JUDGMENT OR FINAL ORDERS
...............................................................................104
RES JUDICATA IN JUDGMENTS IN REM................... 105
RES JUDICATA IN JUDGMENTS IN PERSONAM........105
CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES
(AUTER ACTION PENDANT).................................... 105
REQUISITES OF RES JUDICATA...............................105
RES JUDICATA V. LAW OF THE CASE V. STARE DECISIS 105
ENFORCEMENT AND EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS................105
EFFECT OF FOREIGN JUDGMENTS.........................105
Provisional Remedies.....106
NATURE OF PROVISIONAL REMEDIES......106
DEFINITION.............................................................106
JURISDICTION OVER
PROVISIONAL REMEDIES..............................106
PRELIMINARY ATTACHMENT........................106
DEFINITION.............................................................106
PURPOSES..............................................................106
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT .. 106
REQUISITES............................................................107
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT ;
AFFIDAVIT AND BOND.............................................107
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS...............................................................107
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;
WHEN PROPERTY ATTACHED IS CLAIMED BY
THIRD PERSON.......................................................108
DISCHARGE OF ATTACHMENT AND
THE COUNTER-BOND.............................................109
SATISFACTION OF JUDGMENT
OUT OF PROPERTY ATTACHED................................110
PRELIMINARY INJUNCTION............................111
DEFINITIONS AND DIFFERENCES: DRELIMINARY INJUNCTION
AND TEMPORARY RESTRAINING ORDER; STATUS QUO ANTE
ORDER......................................................................111
REQUISITES..............................................................111
KINDS OF INJUNCTION.............................................112
WHEN WRIT MAY BE ISSUED....................................113
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION 113
GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF
INJUNCTION OR RESTRAINING ORDER....................113
DURATION OF A TEMPORARY RESTRAINING ORDER
................................................................................ 114
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR
WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS.................................114
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO ATTACHMENT...............114
RECEIVERSHIP...................................................115
NATURE................................................................... 115
PURPOSE.................................................................115
CASES WHEN RECEIVER MAY BE APPOINTED.........115
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER 115
POWERS OF A RECEIVER.........................................115
TWO (2) KINDS OF BOND.........................................116
TERMINATION OF RECEIVERSHIP............................116
REPLEVIN............................................................ 116
WHEN MAY WRIT BE ISSUED....................................116
REQUISITES.............................................................117
AFFIDAVIT AND BOND; REDELIVERY BOND..............117
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY......117
Special Civil Actions.............118
NATURE OF SPECIAL CIVIL ACTIONS.........118
HOW COMMENCED.................................................. 118
ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL
ACTIONS.............................................................. 118
JURISDICTION AND VENUE............................118
INTERPLEADER.................................................118
DEFINITION..............................................................118
PURPOSE.................................................................118
REQUISITES FOR INTERPLEADER............................119
WHEN TO FILE......................................................... 119
DECLARATORY RELIEFS AND
SIMILAR REMEDIES..........................................119
WHO MAY FILE THE ACTION.....................................119
REQUISITES OF ACTION FOR DECLARATORY RELIEF
................................................................................120
WHEN COURT MAY REFUSE TO
MAKE JUDICIAL DECLARATION...............................120
CONVERSION TO ORDINARY ACTION......................120
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
................................................................................120
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTION OF THE COMELEC AND COA
................................................................................ 121
SCOPE..................................................................... 121
PROCEDURE............................................................121
DISTINCTION IN THE APPLICATION OF RULE 65 TO
JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS
AND OFFICERS........................................................123
CERTIORARI, PROHIBITION
AND MANDAMUS.............................................. 123
WHEN PETITION FOR CERTIORARI, PROHIBITION AND
MANDAMUS IS PROPER (ANNEX F).........................124
INJUNCTIVE RELIEF................................................ 125
CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI ;
PROHIBITION AND MANDAMUS DISTINGUISHED FROM
INJUNCTION; WHEN AND WHERE TO FILE PETITION
................................................................................125
EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION
BEFORE FILING PETITION....................................... 125
RELIEFS PETITIONER IS ENTITLED TO....................125
FACTIONS/OMISSIONS OF MTC/RTC
IN ELECTION CASES...............................................126
WHERE TO FILE PETITION.......................................126
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION .. 126
QUO WARRANTO..............................................126
DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS
ELECTION CODE.....................................................126
WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST
INDIVIDUALS........................................................... 126
WHEN INDIVIDUAL MAY COMMENCE AN ACTION.....127
JUDGMENT IN QUO WARRANTO ACTION.................127
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC
OFFICE.................................................................................. 127
EXPROPRIATION ............................................ 127
MATTERS TO ALLEGE IN
COMPLAINT FOR EXPROPRIATION ............................ 127
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION .... 127
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO
POSSESSION OF THE REAL PROPERTY, IN RELATION TO
RA
8974 ............................................................... 128
NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
COMPENSATION ................................................. 128
DEFENSES AND OBJECTIONS ................................. 128
ORDER OF EXPROPRIATION .................................. 129
ASCERTAINMENT OF JUST COMPENSATION .............. 129
APPOINTMENT OF COMMISSIONERS ; COMMISSIONERS
REPORT; COURT ACTION
UPON COMMISSIONERS REPORT ........................... 129
RIGHTS OF PLAINTIFF UPON JUDGMENT
AND PAYMENT .................................................... 130
EFFECT OF RECORDING OF JUDGMENT ..................... 130
FORECLOSURE OF
REAL ESTATE MORTGAGE ............................. 130
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE . 130
SALE OF MORTGAGED PROPERTY; EFFECT ................ 130
DISPOSITION OF PROCEEDS OF SALE ......................... 131
DEFICIENCY JUDGMENT ......................................... 131
JUDICIAL FORECLOSURE V.
EXTRAJUDICIAL FORECLOSURE ................................ 131
EQUITY OF REDEMPTION VERSUS
RIGHT OF REDEMPTION ......................................... 132
PARTITION ...................................................... 132
PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY
INJUNCTION
...............................................................................
140
RESOLVING DEFENSE OF OWNERSHIP
...............................................................................
140
HOW TO STAY THE IMMEDIATE
EXECUTION OF JUDGMENT
...............................................................................
140
SUMMARY PROCEDURE, PROHIBITED PLEADINGS
................................................................................
141
CONTEMPT
................................................................................
141
KINDS OF CONTEMPT
................................................................................
141
PURPOSE AND NATURE OF EACH
................................................................................
141
REMEDY AGAINST DIRECT CONTEMPT; PENALTY. .142
REMEDY AGAINST INDIRECT CONTEMPT;
PENALTY (ANNEX G)..............................................142
HOW CONTEMPT PROCEEDINGS ARE COMMENCED
................................................................................142
ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT
................................................................................142
WHEN IMPRISONMENT SHALL BE IMPOSED...........143
CONTEMPT AGAINST QUASI-JUDICIAL BODIES......143

WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE ANNEX A..............................................................144

DEFENDANTS ......................................................
MATTERS TO ALLEGE IN THE
COMPLAINT FOR PARTITION ...................................
TWO (2) STAGES IN EVERY ACTION FOR PARTITION ......
ORDER OF PARTITION AND PARTITION
BY AGREEMENT ...................................................
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS, COMMISSIONERS REPORT; COURT
134
ACTION UPON COMMISSIONERS REPORT ..................
135
JUDGMENT AND ITS EFFECTS ..................................
135
PARTITION OF PERSONAL PROPERTY ........................
135
PRESCRIPTION OF ACTION ......................................
FORCIBLE ENTRY AND UNLAWFUL DETAINER 136
DEFINITIONS AND DISTINCTION ............................... 135
DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION
REINVINDICATORIA .............................................. 136
HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA
AND ACCION REINVINDICATORIA .............................
WHO MAY INSTITUTE THE ACTION AND WHEN...................;AGAINST
WHOM THE ACTION MAY BE MAINTAINED
PLEADINGS ALLOWED ...........................................
ACTION ON THE COMPLAINT ...................................
WHEN DEMAND IS NECESSARY ................................
132 ANNEX B..............................................................145
ANNEX C..............................................................146
133 ANNEX D..............................................................148
133 ANNEX E..............................................................149
ANNEX F..............................................................150
133 ANNEX G
................................................................................
151
CRIMINAL PROCEDURE
General Matters........................153
DISTINGUISH JURISDICTION OVER SUBJECT
MATTER FROM JURISDICTION OVER PERSON OF
THE ACCUSED...................................................153
JURISDICTION OVER SUBJECT MATTER.................153
JURISDICTION OVER THE PERSON OF THE ACCUSED
136 ................................................................................153
136
REQUISITES FOR EXERCISE OF CRIMINAL
137 JURISDICTION...................................................153
137
137 JURISDICTION OF CRIMINAL COURTS......153
CRIMINAL JURISDICTION OF COURTS.....................153
MILITARY COURTS.................................................. 155

Prosecution of Offenses .. 155

CRIMINAL ACTIONS, HOW INSTITUTED....155
IN GENERAL............................................................155
INSTITUTION AND COMMENCEMENT OF ACTIONS. .155
EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE
PRESCRIPTIVE PERIOD...........................................155

WHO MAY FILE THEM, CRIMES THAT CANNOT BE

PROSECUTED DE OFFICIO............................155
CASES THAT CANNOT BE PROSECUTED DE OFICIO
................................................................................155
WHO MAY FILE A COMPLAINT?...............................155
EFFECT OF.........................................................155
DEATH OF OFFENDED PARTY................................. 155
DESISTANCE BY OFFENDED PARTY........................155
PARDON BY OFFENDED PARTY...............................155
CRIMINAL ACTIONS, WHEN ENJOINED.....156
CONTROL OF PROSECUTION.......................156
EXTENT OF THE PROSECUTORS CONTROL .. 156
PRIOR TO THE FILING OF THE CASE.......................156
AFTER A CASE IS FILED.......................................... 156
LIMITATIONS OF CONTROL BY THE COURT.............156
EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN
THE TRIAL...............................................................157
SUFFICIENCY OF COMPLAINT
OR INFORMATION.............................................157
COMPLAINT DEFINED..............................................157
INFORMATION DEFINED...........................................157
FORM & SUBSTANCE..............................................157
DESIGNATION OF OFFENSE..........................157
CAUSE OF THE ACCUSATION.......................157
WHAT TO ALLEGE....................................................157
DUPLICITY OF THE OFFENSE; EXCEPTION
................................................................................158
DUPLICITY OF OFFENSE......................................... 158
SEVERAL MODES OF COMMITTING OFFENSE NOT
DUPLICITOUS..........................................................158
AMENDMENT OR SUBSTITUTION OF COMPLAINT
OR INFORMATION............................................ 158
AMENDMENTS IN FORM AND
SUBSTANCE BEFORE PLEA....................................158
AMENDMENTS MADE AFTER PLEA
AND DURING TRIAL.................................................158
VENUE OF CRIMINAL ACTIONS....................159
INTERVENTION OF OFFENDED PARTY......159
Prosecution of
Civil Action........................................160
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION
WITH CRIMINAL ACTION................................160
HOW INSTITUTED....................................................160
WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY..............................................160
SEPARATE ACTION FILED BY THE ACCUSED..........160
WHEN SEPARATE
CIVIL ACTION IS SUSPENDED......................160
EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL
ACTION...................................................................160
PREJUDICIAL QUESTION................................161
EFFECT....................................................................161
ELEMENTS OF PREJUDICIAL QUESTION..................161
WHERE TO FILE PETITION FOR SUSPENSION IS FILED .. 161
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION
................................................................................ 161
FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN
CRIMINAL ACTION....................................................161
Preliminary Investigation .. 161
NATURE OF RIGHT............................................161
PRELIMINARY INVESTIGATION, DEFINED.................161
NATURE OF THE RIGHT TO
PRELIMINARY INVESTIGATION.................................161
RIGHT TO PRELIMINARY INVESTIGATION................162
INSTANCES WHEREIN
THE RIGHT TO PI IS DEEMED WAIVED:...................162
INSTANCES WHEREIN
THE RIGHT TO PI IS NOT DEEMED WAIVED............162
PURPOSES OF
PRELIMINARY INVESTIGATION....................162
SCOPE OF PI......................................................162
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE............162
PROCEDURE FOR PRELIMINARY INVESTIGATION ....163
RESOLUTION OF
INVESTIGATING PROSECUTOR....................163
REVIEW...................................................................163
REMEDY OF AN AGGRIEVED PARTY AGAINST THE
RESOLUTION OF THE DOJ SECRETARY.................164
WHEN WARRANT OF ARREST MAY ISSUE
................................................................................164
CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION.................................................164
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
NOR COVERED BY RULE ON SUMMARY PROCEDURE
................................................................................164
REMEDIES OF ACCUSED IF THERE WAS NO
PRELIMINARY INVESTIGATION....................164
EFFECT OF DENIAL OF RIGHT TO PRELIMINARY
INVESTIGATION.......................................................164
IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED 165
INQUEST..............................................................165
DEFINITION.............................................................165
PROCEDURE FOR INQUEST PROCEEDINGS............165
Arrest........................................................166
DEFINITION.........................................................166
IMMUNITY FROM ARREST........................................166
ARREST, HOW MADE.......................................166
MODES OF EFFECTING ARREST..............................166
NO UNNECESSARY VIOLENCE................................ 166
TIME TO MAKE ARREST...........................................166
ARREST WITHOUT WARRANT, WHEN LAWFUL 166
RULES ON ILLEGALITY OF ARREST.........................167
METHOD OF ARREST.......................................167
BY OFFICER WITH WARRANT..................................167
BY OFFICER WITHOUT WARRANT........................... 168
BY PRIVATE PERSON.............................................. 168
REQUISITES OF A
VALID WARRANT OF ARREST......................168
ESSENTIAL REQUISITES OF A VALID ARREST WARRANT 168
INSTANCES WHEN JUDGE ISSUES
WARRANT OF ARREST............................................168
DETERMINATION OF PROBABLE CAUSE FOR
ISSUANCE OF WARRANT OF ARREST.......169
DISTINGUISH PROBABLE CAUSE OF FISCAL
FROM THAT OF A JUDGE...............................169
Bail................................................................169
NATURE...............................................................169
DEFINITION.............................................................169
PURPOSES..............................................................169
AS REGARDS THE REQUIREMENT OF CUSTODY.....169
WHEN A MATTER OF RIGHT; EXCEPTIONS
................................................................................169
BAIL AS A MATTER OF RIGHT..................................169
WHEN BAIL NOT AVAILABLE...................................169
WHEN A MATTER OF DISCRETION..............170
WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL
BE DENIED..............................................................170
HEARING OF APPLICATION FOR
BAIL IN CAPITAL OFFENSES........................170
CONVICTION........................................................... 170
PROSECUTION HAS BURDEN OF PROOF................ 170
REGARDING MINORS CHARGED
WITH A CAPITAL OFFENSE......................................170
DUTY OF JUDGE TO CONDUCT HEARING.................171
WHERE THE APPLICATION IS FILED.........................171
GUIDELINES IN FIXING
AMOUNT OF BAIL.....................................................171
BAIL WHEN NOT REQUIRED..........................171
INCREASE OR REDUCTION OF BAIL........................172
INCREASED BAIL.....................................................172
REDUCED BAIL........................................................172
FORFEITURE AND CANCELLATION OF BAIL
................................................................................172
FORFEITURE OF BAIL..............................................172
CANCELLATION OF BAIL......................................... 172
APPLICATION NOT A BAR TO OBJECTIONS IN
ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION.....................172
HOLD DEPARTURE ORDER & BUREAU OF
IMMIGRATION WATCHLIST.............................172
Rights of the Accused.......173
RIGHTS OF ACCUSED AT THE TRIAL.........173
TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE DOUBT................ 173
TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION AGAINST HIM.....................................174
TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL
AT EVERY STAGE OF THE PROCEEDINGS................174
TO TESTIFY AS WITNESS IN HIS BEHALF.................174
RIGHT AGAINST SELF-INCRIMINATION....................174
RIGHT TO CONFRONTATION.................................... 175
RIGHT TO COMPULSORY PROCESS.........................175
RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL 175
RIGHT TO APPEAL...................................................175
RIGHTS OF PERSONS UNDER
CUSTODIAL INVESTIGATION.........................175
TO BE ASSISTED BY COUNSEL AT ALL TIMES.........176
TO REMAIN SILENT..................................................176
TO BE INFORMED, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT
AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL ,
PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL
TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION....................................................... 176
TO BE ALLOWED VISITS BY OR CONFERENCES WITH
................................................................................176
CONSEQUENCES OF VIOLATION OF
CUSTODIAL RIGHTS................................................ 176
Arraignment and Plea.......176
ARRAIGNMENT AND PLEA, HOW MADE....176
DEFINITION..............................................................176
DUTY OF THE COURT BEFORE ARRAIGNMENT........177
BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY
AVAIL OF ANY OF THE FOLLOWING:........................177
HOW ARRAIGNMENT MADE.....................................177
SPECIFIC RULES ON ARRAIGNMENT.......................178
WHEN SHOULD PLEA OF NOT GUILTY BE
ENTERED.............................................................178
INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED
FOR THE ACCUSED.................................................178
WHEN ACCUSED MAY ENTER A PLEA OF GUILTY
TO A LESSER OFFENSE..................................179
PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT .. 179
PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT
BEFORE TRIAL........................................................ 179
PLEA TO A LESSER OFFENSE
AFTER TRIAL HAS BEGUN.......................................179
ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE,
WHAT THE COURT SHOULD DO...................179
DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A
CAPITAL OFFENSE.................................................. 179
SEARCHING INQUIRY......................................179
PLEA OF GUILTY TO A CAPITAL OFFENSE...............179
IMPROVIDENT PLEA OF GUILTY TO A CAPITAL
OFFENSE.............................................................179
DEFINITION..............................................................179
WHEN IMPROVIDENT PLEAMAY BE WITHDRAWN....179
GROUNDS FOR SUSPENSION
OF ARRAIGNMENT........................................... 179
UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE
TIME OF THE ARRAIGNMENT...................................179
PREJUDICIAL QUESTION EXISTS............................180
PENDING PETITION FOR REVIEW OF THE RESOLUTION OF
THE PROSECUTOR WITH THE DOJ OR OFFICE OF THE
PRESIDENT.............................................................180
PENDING MOTION TO QUASH.................................180
Motion to Quash......................180
GROUNDS...........................................................180
FACTS CHARGED DO NOT CONSTITUTE
AN OFFENSE.......................................................... 180
COURT HAS NO JURISDICTION OVER
THE OFFENSE CHARGED.........................................181
COURT HAS NO JURISDICTION OVER
THE PERSON OF THE ACCUSED.............................. 181
OFFICER WHO FILED INFORMATION HAD
NO AUTHORITY TO DO SO........................................181
COMPLAINT/INFORMATION DOES NOT CONFORM
SUBSTANTIALLY TO THE PRESCRIBED FORM..........181
MORE THAN ONE OFFENSE IS CHARGED...............182
CRIMINAL ACTION OR LIABILITY
HAS BEEN EXTINGUISHED......................................182
CONTAINS AVERMENTS WHICH, IF TRUE, WOULD
CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION 182
DISTINGUISH FROM
DEMURRER TO EVIDENCE............................182
EFFECTS OF SUSTAINING THE MOTION TO
QUASH.................................................................183
EXCEPTION TO THE RULE THAT SUSTAINING THE
MOTION IS NOT A BAR TO ANOTHER
PROSECUTION..................................................183
DOUBLE JEOPARDY........................................183
RULE OF DOUBLE JEOPARDY.................................183
KINDS OF DOUBLE JEOPARDY................................183
SAME OFFENSE...................................................... 183
SAME ACT...............................................................184
REQUISITES TO SUCCESSFULLY
INVOKE DOUBLE JEOPARDY...................................184
REQUISITES FOR FIRST JEOPARDY TO ATTACH.....184
WITHOUT EXPRESS CONSENT............................184
DISMISSAL = ACQUITTAL........................................184
DISMISSAL VS. ACQUITTAL.....................................184
PROVISIONAL DISMISSAL.............................184
DEFINITION.............................................................184
WHEN DISMISSAL BECOMES PERMANENT:
TIME BAR RULE...................................................... 185
HOW TO REVIVE A CASE.........................................185
REQUISITE PROCEDURE.........................................185
Pre-trial..................................................185
JUDICIAL
AFFIDAVIT RULE...............................................185
MATTERS TO BE CONSIDERED DURING PRE-
TRIAL....................................................................185
COVERAGE............................................................. 185
PERIOD...................................................................185
THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES 186
ROLE OF THE JUDGE..............................................186
STIPULATION OF FACTS..........................................186
MARKING FOR IDENTIFICATION OF THE EVIDENCE OF
PARTIES..................................................................186
WHAT THE COURT SHOULD DO WHEN
PROSECUTION AND OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE ACCUSED
................................................................................186
PLEA BARGAINING..................................................186
EFFECT WHEN THE PROSECUTION AND THE OFFENDED
PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED 186
PRE-TRIAL AGREEMENT................................186
FORM......................................................................186
REQUIRED FORM OF PRE-TRIAL AGREEMENT........186
EFFECT................................................................... 186
NON-APPEARANCE DURING PRE-TRIAL. .187
PRE-TRIAL ORDER...........................................187
ISSUANCE...............................................................187
CONTENTS.............................................................. 187
EFFECT................................................................... 187
REFERRAL OF SOME CASES FOR COURT
ANNEXED MEDIATION AND JUDICIAL DIPUTE
RESOLUTION......................................................187
A.M. NO. 03-1-09-SC RE: PROPOSED RULE ON
GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE
CONDUCT OF PRE- TRIAL AND USE OF
DEPOSITION-DISCOVERY MEASURES
RESOLUTION......................................................187
Trial..............................................................187
INSTANCES WHEN PRESENCE OF ACCUSED IS
REQUIRED BY LAW..........................................187
PRESENCE IS MANDATORY.....................................187
REQUISITES BEFORE TRIAL CAN BE SUSPENDED
ON ACCOUNT OF ABSENCE OF WITNESS
................................................................................188
ABSENCE OR UNAVAILABILITY OF
AN ESSENTIAL WITNESS.........................................188
CONDITIONAL EXAMINATION.................................. 188
TRIAL IN ABSENTIA.........................................188
REQUISITES............................................................188
REMEDY WHEN ACCUSED IS NOT BROUGHT TO
TRIAL WITHIN THE PRESCRIBED PERIOD 188
EFFECT OF DELAY.................................................. 188
REQUISITES FOR DISCHARGE OF ACCUSED TO
BECOME A STATE WITNESS......................... 188
DISCHARGE OF A CO-ACCUSED.............................188
REQUISITES............................................................189
EFFECTS OF DISCHARGE OF
ACCUSED AS STATE WITNESS....................189
EFFECT OF DISCHARGE..........................................189
DEMURRER TO EVIDENCE............................189
DEFINITION.............................................................189
HOW INITIATED....................................................... 189
MOTION FOR LEAVE TO FILE DEMURRER...............189
EFFECT OF GRANTING DEMURRER........................189
EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE
DEMURRER.............................................................190
RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER
DEMURRER IS DENIED............................................190
Judgment...........................................190
REQUISITES OF A JUDGMENT.....................190
FORM......................................................................190
JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE
WHO HEARD THE CASE..........................................190
CONTENTS OF JUDGMENT...........................190
CONVICTION........................................................... 190
ACQUITTAL............................................................. 192
PROMULGATION OF JUDGMENT; INSTANCES OF
PROMULGATION OF JUDGMENT IN ABSENTIA 192
PROMULGATION..................................................... 192
NOTICE FOR PROMULGATION.................................192
WHEN DOES JUDGMENT BECOME FINAL 193
JUDGMENT BECOMES FINAL.................................. 193
New trial
or Reconsideration...............194
GROUNDS FOR NEW TRIAL..........................194
GROUNDS FOR RECONSIDERATION........................194
REQUISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE...........................................................194
REQUISITES............................................................194
EXCEPTIONS...........................................................194
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION.........................................194
IN ALL CASES......................................................... 194
REMEDY AGAINST GAD IN GRANTING MNT/MFR.....195
APPLICATION OF NEYPES DOCTRINE IN
CRIMINAL CASES.............................................195
FRESH PERIOD TO APPEAL
AFTER DENIAL OF MNT/MR.....................................195
Appeal.....................................................195
EFFECT OF AN APPEAL.................................195
WHERE TO APPEAL.................................................195
HOW APPEAL TAKEN......................................195
WHO MAY APPEAL.................................................. 195
PROCEDURE IN THE CA.......................................... 196
PROMPT DISPOSITION OF APPEAL..........................197
REVERSAL / MODIFICATION OF JUDGMENT ON APPEAL 197
SCOPE OF CAS JUDGMENT....................................197
CAS POWER TO RECEIVE EVIDENCE..................... 198
QUORUM IN THE CA................................................198
CERTIFICATION OR APPEAL OF CASES TO THE SC.198
JUDGMENT TRANSMITTED AND FILED IN TC...........198
MNT DURING THE PENDENCY OF APPEAL IN THE CA
................................................................................198
MFR OF CA JUDGMENT...........................................198
APPLICABLE CIVIL PROCEDURE RULES.................199
PROCEDURE IN THE SC.......................................... 199
EFFECT OF APPEAL BY ANY OF \SEVERAL
ACCUSED...........................................................200
GROUNDS FOR DISMISSAL OF APPEAL..200
WHEN APPEAL BY THE PEOPLE WILL NOT LIE......200
Search and Seizure............201
NATURE OF SEARCH WARRANT.................201
DEFINITION.............................................................201
NATURE OF A SEARCH WARRANT.......................... 201
BASIS: CONSTITUTIONAL SAFEGUARD AGAINST
UNREASONABLE SEARCH AND SEIZURES..............201
CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC
OFFICERS ACTS, NOT PRIVATE PERSONS.............201
DISTINGUISH FROM
WARRANT OF ARREST...................................201
APPLICATION FOR SEARCH WARRANT, WHERE
FILED...................................................................202
APPLICATION.........................................................202
ISSUANCE AND FORM OF SEARCH WARRANT.......203
VALIDITY OF SEARCH WARRANT...........................203
SERVICE OF SEARCH WARRANT............................203
POST-SERVICE.......................................................203
PROBABLE CAUSE.........................................204
WARRANTS GENERALLY
ISSUED UPON PROBABLE CAUSE..........................204
PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST AND
WARRANTLESS SEARCH........................................204
PERSONAL EXAMINATION BY JUDGE OF THE
APPLICANT AND WITNESSES......................204
EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE
JUDGE; DETERMINED BY JUDGE HIMSELF............204
PARTICULARITY OF PLACE TO BE SEARCHED
AND THINGS TO BE SEIZED.........................205
PARTICULARITY OF PLACE
TO BE SEARCHED...........................................205
PARTICULARITY OF THINGS TO BE SEIZED............205
PERSONAL PROPERTY TO BE SEIZED.....205
WHAT MAY BE SEIZED............................................205
RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC...205
EXCEPTIONS TO SEARCH WARRANT
REQUIREMENT.................................................205
SEARCH INCIDENTAL TO LAWFUL ARREST............205
CONSENTED SEARCH............................................206
SEARCH OF MOVING VEHICLE...............................206
CHECK POINTS; BODY CHECKS IN AIRPORT..........206
PLAIN VIEW SITUATION...........................................207
STOP AND FRISK SITUATION.................................. 207
ENFORCEMENT OF CUSTOM LAWS........................207
OTHER EXCEPTIONS..............................................207
REMEDIES FROM UNLAWFUL SEARCH AND
SEIZURE.............................................................208
WHO MAY AVAIL OF REMEDIES..............................208
REMEDIES..............................................................208
CRIMINAL LIABILITY...............................................209
CIVIL LIABILITIES...................................................209
Provisional Remedies....209
NATURE..............................................................209
KINDS OF PROVISIONAL REMEDIES.........209
PRELIMINARY ATTACHMENT................................... 210
EVIDENCE
General Principles of
Evidence..............................................212
CONCEPT OF EVIDENCE................................212
SCOPE OF THE RULES OF EVIDENCE.......212
APPLICABILITY........................................................212
EVIDENCE IN CIVIL CASES VS.
EVIDENCE IN CRIMINAL CASES...................212
PROOF VS. EVIDENCE.....................................212
FACTUM PROBANS VS.
FACTUM PROBANDUM....................................212
CLASSIFICATION OF EVIDENCE...............................212
ADMISSIBILITY OF EVIDENCE...................... 213
REQUISITES FOR ADMISSIBILITY OF EVIDENCE......213
WHEN DETERMINED................................................213
RELEVANCE OF EVIDENCE & COLLATERAL MATTERS
................................................................................213
DOCTRINES OF ADMISSIBILITY................................213
BURDEN OF PROOF AND
BURDEN OF EVIDENCE..................................214
WHERE BURDEN OF PROOF IS FIXED.....................214
EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE...214
PRESUMPTIONS................................................214
LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE...........................................................215
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE).......................215
PROOF BEYOND REASONABLE DOUBT..................215
PREPONDERANCE OF EVIDENCE............................215
SUBSTANTIAL EVIDENCE........................................215
CLEAR AND CONVINCING EVIDENCE......................215
Judicial Notice and
Judicial Admissions.............215
WHAT NEED NOT BE PROVED.....................215
JUDICIAL NOTICE....................................................215
MATTERS OF JUDICIAL NOTICE..................215
MANDATORY...........................................................215
DISCRETIONARY..................................................... 216
REQUISITES............................................................216
JUDICIAL ADMISSIONS...................................216
WHERE JUDICIAL ADMISSIONS MAY BE MADE........216
HOW JUDICIAL ADMISSIONS MAY BE OBTAINED.....216
EFFECT OF JUDICIAL ADMISSIONS......................... 216
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
................................................................................216
CONCLUSIVE PRESUMPTIONS................................216
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND
MUNICIPAL ORDINANCES........................................218
FOREIGN LAWS.......................................................218
LAW OF NATIONS....................................................219
MUNICIPAL ORDINANCES........................................219
Object (Real) Evidence. 219
NATURE OF OBJECT EVIDENCE..............................219
REQUISITES FOR ADMISSIBILITY...............219
RELEVANT...............................................................219
COMPETENT........................................................... 219
CATEGORIES OF OBJECT EVIDENCE...................... 219
UNIQUE OBJECTS................................................... 219
OBJECTS MADE UNIQUE.........................................219
NON-UNIQUE OBJECTS...........................................219
DEMONSTRATIVE EVIDENCE........................219
EPHEMERAL ELECTRONIC COMMUNICATIONS......220
VIEW OF AN OBJECT OR SCENE................220
CHAIN OF CUSTODY...............................................220
CHAIN OF CUSTODY.......................................220
MEANING OF CHAIN OF CUSTODY.........................220
IN RELATION TO DRUG CASES...............................220
PURPOSE OF ESTABLISHING CHAIN OF CUSTODY 220
RULE ON DNA EVIDENCE..............................220
MEANING OF DNA..................................................220
APPLICATION FOR DNA TESTING ORDER...............220
POST-CONVICTION TESTING...................................221
ASSESSMENT AND PROBATIVE VALUE OF
DNA EVIDENCE AND ADMISSIBILITY........................221
RULES ON EVALUATION OF RELIABILITY OF THE DNA
TESTING METHODOLOGY........................................221
Documentary Evidence. 221
MEANING OF DOCUMENTARY EVIDENCE. 221
REQUISITES FOR ADMISSIBILITY...............222
BEST EVIDENCE RULE...................................222
MEANING OF THE RULE..........................................222
APPLICABILITY.......................................................222
MEANING OF ORIGINAL DOCUMENT...................222
REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE
(EXCEPTIONS TO BER)...........................................222
RULES ON ELECTRONIC EVIDENCE..........222
APPLICABILITY.......................................................222
MEANING OF ELECTRONIC DEVICE; ELECTRONIC DATA
MESSAGE............................................................... 222
METHOD OF PROOF................................................222
AUTHENTICATION OF ELECTRONIC DOCUMENTS &
ELECTRONIC SIGNATURES.....................................223
ELECTRONIC DOCUMENTS & THE HEARSAY RULE 224
AUDIO, PHOTOGRAPHIC, VIDEO &
EPHEMERAL EVIDENCE.........................................224
PAROL EVIDENCE............................................224
MEANING OF PAROL EVIDENCE.............................224
APPLICATION OF THE PAROL EVIDENCE RULE......224
WHEN PAROL EVIDENCE CAN BE INTRODUCED.....224
DISTINCTIONS BETWEEN BEST EVIDENCE RULE & PAROL
EVIDENCE RULE.....................................................224
AUTHENTICATION AND PROOF
OF DOCUMENTS...............................................225
MEANING OF AUTHENTICATION..............................225
PUBLIC AND PRIVATE DOCUMENTS........................225
ATTESTATION OF A COPY....................................... 226
PROOF OF LACK OF RECORD.................................226
WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD .. 226
PROOF OF NOTARIAL DOCUMENTS........................226
ALTERATIONS IN A DOCUMENT..............................226
DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE.........................................226
Testimonial Evidence.......227
WITH RESPECT TO A WITNESS...................227
QUALIFICATIONS OF A WITNESS................227
WHEN DETERMINED...............................................227
IN CASE A PERSON IS CONVICTED OF A CRIME......227
COMPETENCY VS. CREDIBILITY
OF A WITNESS...................................................227
DISQUALIFICATIONS OF A WITNESS.........227
BY REASON OF MENTAL INCAPACITY OR IMMATURITY . 227
BY REASON OF MARRIAGE.....................................227
BY REASON OF DEATH OR INSANITY OF
ADVERSE PARTY....................................................228
PRIVILEGED COMMUNICATIONS.............................228
EXAMINATION OF WITNESSES....................230
RIGHTS AND OBLIGATIONS OF A WITNESS............230
ORDER IN THE EXAMINATION OF
AN INDIVIDUAL WITNESS.......................................230
LEADING AND MISLEADING QUESTIONS................. 231
METHODS OF IMPEACHMENT OF ADVERSE PARTY S
WITNESS.................................................................231
JUDICIAL AFFIDAVIT RULE......................................232
WITH RESPECT TO THE TESTIMONY.........233
ADMISSIONS & CONFESSIONS....................233
ADMISSIONS OF A PARTY.......................................233
CONFESSIONS........................................................234
RES INTER ALIOS ACTA RULE.................................234
HEARSAY RULE................................................235
MEANING OF HEARSAY.......................................... 235
REASON FOR EXCLUSION OF HEARSAY EVIDENCE
...............................................................................235
GENERAL RULE ON HEARSAY................................235
EXCEPTIONS.......................................................... 235
OPINION RULE..................................................239
OPINION OF EXPERT WITNESS............................... 239
OPINION OF ORDINARY WITNESS...........................239
CHARACTER EVIDENCE................................239
CRIMINAL CASES....................................................239
CIVIL CASES...........................................................239
RULE ON EXAMINATION OF A
CHILD WITNESS................................................239
MEANING OF CHILD WITNESS.............................239
APPLICABILITY OF THE RULE.................................239
COMPETENCY OF A CHILD WITNESS......................239
EXAMINATION OF A CHILD WITNESS.......................239
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS....240
VIDEOTAPED DEPOSITION OF A CHILD WITNESS...240
HEARSAY EXCEPTION IN CHILD ABUSE CASES.....240
SEXUAL ABUSE SHIELD RULE................................240
PROTECTIVE ORDERS............................................240
Offer and Objection...........240
OFFER OF EVIDENCE.....................................240
CONCEPT...............................................................240
AS DISTINGUISHED FROM IDENTIFICATION OF
DOCUMENTARY EVIDENCE..................................... 241
RATIONALE WHY FORMER OFFER IS NEEDED........241
WHEN OFFER IS NOT REQUIRED.............................241
WHEN TO MAKE AN OFFER..........................241
WHEN TO MAKE AN OFFER..........................241
OBJECTION........................................................241
CONCEPT................................................................241
PURPOSES OF OBJECTION.....................................241
FORMAL VS. SUBSTANTIVE OBJECTIONS..............242
REPETITION OF AN OBJECTION.................242
RULING...............................................................242
STRIKING OUT OF AN ANSWER..................242
MOTION TO STRIKE................................................242
TENDER OF EXCLUDED EVIDENCE...........242
HOW TO TENDER EVIDENCE..................................242
RATIONALE............................................................242
2 METHODS OF MAKING THE TENDER...................242
ERRONEOUS WAY OF MAKING TENDER.................242
SPECIAL PROCEEDINGS
Preliminary Matters............244
SPECIAL PROCEEDINGS...............................244
APPLICABLE RULES......................................244
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES.............................................244
DIFFERENCE BETWEEN ACTION AND SPECIAL
PROCEEDING....................................................244
VENUES AND JURISDICTIONS FOR SPECIAL
PROCEEDINGS.................................................244
MODES OF SETTLEMENT
OF ESTATE [HERRERA].................................245
Settlement of Estate of
Deceased Persons, Venue
And Process.................................245
WHICH COURT HAS JURISDICTION...........245
JURISDICTION OF RTCS.........................................245
JURISDICTION OF MTCS.........................................245
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS OF THE SAME ESTATE. 246
VENUE IN JUDICIAL
SETTLEMENT OF ESTATE.............................246
RULE 73 RELATES TO VENUE AND
NOT TO JURISDICTION...........................................246
MEANING OF TERM RESIDES..............................246
EXTENT OF JURISDICTION
OF PROBATE COURT.....................................246
PROBATE COURT IS OF LIMITED JURISDICTION.....246
POWERS AND DUTIES OF PROBATE COURT .. 246
Summary Settlement of
Estates..................................................246
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN HEIRS, WHEN ALLOWED..........246
REQUISITES...........................................................246
PROCEDURE...........................................................247
BOND REQUIREMENT............................................. 247
NOT BINDING ON ANY PERSON WHO......................247
VALIDITY OF ORAL PARTITION................................247
VALIDITY OF COMPROMISE AGREEMENT...............247
NO PRECLUSION FROM INSTITUTING ADMINISTRATION
PROCEEDINGS....................................................... 247
TWO-YEAR PRESCRIPTIVE PERIOD..........247
PRESUMPTION OF NO DEBTS.................................247
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE
HEIR......................................................................247
BOND REQUIREMENT............................................. 247
SUMMARY SETTLEMENT OF ESTATES OF SMALL
VALUE..................................................................247
WHEN ALLOWED.................................................... 247
PROCEDURE..........................................................248
REMEDIES OF AGGRIEVED PARTIES AFTER EXTRA-
JUDICIAL SETTLEMENT OF ESTATE ... 248
CLAIM AGAINST THE BOND OR THE ESTATE WITHIN TWO
YEARS....................................................................248
ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL PARTITION...................................249
NEW ACTION TO ANNUL SETTLEMENT WITHIN
REGLEMENTARY PERIOD OF TWO YEAR................249
REOPENING BY INTERVENTION BEFORE RENDITION OF
JUDGMENT WITHIN THE REGLEMETARY PERIOD OF TWO
YEARS....................................................................249
PETITION FOR RELIEF ON THE GROUND OF FRAUD,
ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE
...............................................................................249
RESCISSION IN CASE OF PRETERITION.................249
Production and Probate of
Will..............................................................249
NATURE OF PROBATE PROCEEDING.......249
EFFECT OF PROBATE OF WILL...............................249
WHO MAY PETITION FOR PROBATE; PERSONS
ENTITLED TO NOTICE....................................249
PETITIONER FOR THE ALLOWANCE OF THE WILL..249
MEANING OF INTEREST IN ESTATE........................249
JURISDICTION, HOW ACQUIRED.............................250
Allowance or Disallowance of
Will..............................................................250
CONTENTS OF PETITION FOR ALLOWANCE OF
WILL.....................................................................250
DEFECT IN PETITION..............................................250
GROUNDS FOR DISALLOWING A WILL.....250
REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES;
EFFECTS OF PROBATE.................................250
REPROBATE...........................................................250
REQUISITES FOR ALLOWANCE..................250
EFFECT..................................................................250
Letters Testamentary and of
Administration............................250
WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED.......................250
WHO ARE INCOMPETENT TO SERVE......................250
ORDER OF PREFERENCE..............................251
ORDER OF PREFERENCE IN THE GRANT OF
ADMINISTRATION....................................................251
REASON FOR ORDER OF PREFERENCE..................251
30-DAY PERIOD MAY BE WAIVED............................251
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION................251
MEANING OF INTERESTED PERSON........................251
GROUNDS............................................................... 251
CONTENTS..............................................................251
JURISDICTIONAL FACTS......................................... 251
PUBLICATION AND NOTICE.....................................251
SIMULTANEOUS FILING OF OPPOSITION AND PETITION 252
POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS; RESTRICTIONS ON THE
POWERS.............................................................252
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS.................................................. 252
RESTRICTIONS ON POWERS OF EXECUTORS AND
ADMINISTRATORS.................................................. 252
APPOINTMENT OF
SPECIAL ADMINISTRATOR............................253
WHEN APPOINTED..................................................253
PROCEDURE FOR APPOINTMENT...........................253
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR
...............................................................................253
WHEN SPECIAL ADMINISTRATOR CEASES DUTIES. 253
GROUNDS FOR
REMOVAL OF ADMINISTRATOR...................253
REVOCATION OF ADMINISTRATOR.........................253
REMOVAL OF EXECUTOR OR ADMINISTRATOR......253
EFFECT OF REMOVAL, DEATH, OR RESIGNATION. .254
Claims against
the Estate.........................................254
ESTATE BURDENED WITH
LIEN OF CREDITORS......................................254
PURPOSE OF PRESENTATION OF CLAIMS
AGAINST ESTATE............................................254
TIME WITHIN WHICH CLAIMS SHALL BE FILED;
EXCEPTIONS.....................................................254
STATUTE OF NON-CLAIMS............................254
CLAIMS COVERED (EXCLUSIVE)............................254
CONTINGENT CLAIM WHEN ALLOWED...................254
IF DISPUTED...........................................................254
CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE...................................255
PROCEDURE TO FOLLOW IF THE EXECUTOR OR
ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE
REPRESENTS.........................................................255
PAYMENT OF DEBTS......................................255
DEBTS PAID IN FULL IF ESTATE SUFFICIENT..........255
PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION
MADE BY WILL.......................................................255
PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN
REALTY..................................................................255
ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS............................................255
PAYMENT OF CONTINGENT CLAIM.........................255
COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES ,
LEGATES, OR HEIRS HAVE BEEN IN POSSESSION. 255
ORDER OF PAYMENT IF ESTATE IS INSOLVENT......256
DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS
...............................................................................256
INSOLVENT NON-RESIDENT...................................256
INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND
FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY
...............................................................................256
ORDER OF PAYMENT OF DEBTS.............................256
APPEAL TAKEN FROM A DECISION OF THE COURT
CONCERNING THE CLAIM.......................................256
FROM TIME TO TIME FURTHER
ORDERS OF DISTRIBUTION....................................256
CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF
ORDER...................................................................256
COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A
TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND
LEGACIES..............................................................256
Actions by and against
Executors
and Administrators...............257
ACTIONS THAT MAY BE BROUGHT AGAINST
EXECUTORS AND ADMINISTRATORS........257
ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT
AGAINST THE EXECUTOR OR ADMINISTRATOR......257
ACTIONS WHICH MAY NOT BROUGHT AGAINST
ADMINISTRATORS.................................................. 257
EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND
ACTIONS WHICH SURVIVE...................................... 257
WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED
BY DECEASED MAY BE RECOVERED......................257
DUTY OF EXECUTOR/ADMINISTRATOR...................257
REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR
RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY
THE DECEASED......................................................257
ALLOWED IN TWO INSTANCES...............................257
EFFECT..................................................................258
Distribution and
Partition...............................................258
LIQUIDATION.....................................................258
PROJECT OF PARTITION...............................258
EFFECT OF FINAL DECREE OF DISTRIBUTION 258
REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
NOT GIVEN HIS SHARE..................................258
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF
EXECUTION............................................................258
Trustees..............................................259
DISTINGUISHED FROM EXECUTOR OR
ADMINISTRATOR..............................................259
CONDITIONS OF THE BOND.........................259
WHEN EXEMPT.......................................................259
CONDITIONS...........................................................259
REQUISITES FOR THE REMOVAL AND
RESIGNATION OF A TRUSTEE.....................259
GROUNDS FOR REMOVAL AND RESIGNATION OF
A TRUSTEE........................................................259
GROUNDS FOR REMOVAL......................................259
GROUNDS FOR RESIGNATION................................259
EXTENT OF AUTHORITY OF TRUSTEE......259
NATURE OF POSSESSION......................................259
TERRITORIALITY OF AUTHORITY OF TRUSTEE......259
Escheat...............................................260
WHEN TO FILE..................................................260
REQUISITES FOR FILING OF PETITION.....260
PROCEDURE..........................................................260
REMEDY OF RESPONDENT AGAINST PETITION;
PERIOD FOR FILING A CLAIM......................260
PERIOD TO APPEAL AND CLAIM THE ESTATE........260
FILED BY WHOM.....................................................260
PERIOD FOR FILING CLAIM....................................260
Guardianship.................................261
GUARDIAN..........................................................261
BASIS: PARENS PATRIAE..............................261
KINDS OF GUARDIANS...........................................261
GUARDIANSHIP OF INCOMPETENT............261
PROCEDURE........................................................... 261
GENERAL POWERS AND
DUTIES OF GUARDIANS.................................261
REIMBURSEMENT OF REASONABLE EXPENSES....262
PAYMENT OF COMPENSATION................................262
EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF
WARDS PROPERTIES.............................................262
ORDER TO SHOW CAUSE....................................... 262
ORDER FOR SALE OR ENCUMBRANCE..................262
INVESTMENT OF PROCEEDS AND MANAGEMENT OF
PROPERTY..............................................................262
CONDITIONS OF THE BOND OF THE GUARDIAN
262
RULE ON GUARDIANSHIP OVER MINORS 263
PETITION FOR APPOINTMENT OF GUARDIAN.........263
THE GUARDIAN......................................................264
REMOVAL, RESIGNATION, AND TERMINATION OF
GUARDIANSHIP......................................................264
Adoption ........................... 265
DISTINGUISH DOMESTIC ADOPTION FROM
INTER-COUNTRY ADOPTION (ANNEX A). .265
DOMESTIC ADOPTION ACT..........................265
PROCEDURE..........................................................265
EFFECTS OF ADOPTION.........................................265
INSTANCES WHEN ADOPTION MAY BE RESCINDED
...............................................................................266
RESCISSION OF ADOPTION OF THE ADOPTEE.......266
INTER-COUNTRY ADOPTION........................266
WHEN ALLOWED....................................................266
INTER-COUNTRY ADOPTION AS THE LAST RESORT; BEST
INTEREST OF THE CHILD AS OBJECTIVE.............266
FUNCTIONS OF THE RTC........................................266
Writ of Habeas Corpus. 266
VITAL PURPOSES............................................266
WHO MAY ISSUE THE WRIT..........................267
TEMPORARY RELEASE MAY CONSTITUTE
RESTRAINT -ELEMENTS................................267
NATURE...............................................................267
WHC MAY BE USED WITH WRIT OF CERTIORARI
FOR PURPOSES OF REVIEW........................267
WHC IS NOT THE PROPER REMEDY FOR THE
CORRECTION OF ERRORS OF FACT OR LAW . 267
WHC IS NOT PROPER.....................................268
WHC IS PROPER..............................................268
CONTENTS OF THE PETITION.....................268
REQUISITES OF APPLICATION................................268
PROCEDURE..........................................................268
CONTENTS OF THE RETURN.......................268
WHEN THE RETURN CONSIDERED EVIDENCE , AND WHEN
ONLY A PLEA..........................................................268
DISTINGUISH PEREMPTORY WRIT FROM
PRELIMINARY CITATION................................268
WHEN WRIT NOT PROPER OR APPLICABLE .. 268
WHEN DISCHARGE NOT AUTHORIZED.....269
DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF 269
DISTINGUISHED FROM WRIT OF AMPARO AND
HABEAS DATA (ANNEX B)...............................269
CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC)...................................269
APPLICABILITY.......................................................269
PETITION FOR RIGHTFUL CUSTODY.......................269
WHERE TO FILE......................................................269
CONTENTS.............................................................269
ANSWER TO THE PETITION....................................269
MANDATORY PRE-TRIAL.........................................270
INTERIM RELIEFS....................................................270
JUDGMENT..............................................................271
WRIT OF HABEAS CORPUS IN RELATION TO IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY
CUSTODY OF MINORS.....................................271 . 275

Writ of Amparo.............................271
COVERAGE.........................................................271
WRIT OF AMPARO....................................................271

DISTINGUISH FROM WRIT OF HABEAS CORPUS

AND HABEAS DATA (ANNEX C)...................272
DISTINGUISH WRIT OF AMPARO FROM SEARCH
WARRANT...........................................................272

WHO MAY FILE..................................................272

RATIO FOR PREFERENCE.......................................272
WHERE TO FILE...................................................... 272
CONTENTS..............................................................272

CONTENTS OF RETURN.................................273
CONTENTS..............................................................273
TO WHOM RETURNABLE.........................................273

OMNIBUS WAIVER RULE................................273

DEFENSES NOT PLEADED DEEMED WAIVED ..........273

EFFECT OF FAILURE TO FILE A RETURN. 273

PROCEDURE FOR HEARING ON THE WRIT

................................................................................273
SUMMARY HEARING................................................273
PROHIBITED PLEADINGS AND MOTIONS.................273
JUDGMENT..............................................................273
ARCHIVING AND REVIVAL OF CASES...................... 273

INSTITUTION OF SEPARATE ACTIONS......273

EFFECT OF FILING OF A CRIMINAL ACTION
................................................................................273

CONSOLIDATION..............................................274

INTERIM RELIEFS AVAILABLE TO THE

PETITIONER.......................................................274
TEMPORARY PROTECTION ORDER.........................274
INSPECTION ORDER............................................... 274
PRODUCTION ORDER............................................. 274
WITNESS PROTECTION ORDER.............................. 275

INTERIM RELIEFS AVAILABLE TO THE

RESPONDENT...................................................275
REQUISITES............................................................275

QUANTUM OF PROOF IN APPLICATION FOR

ISSUANCE OF WRIT:
SUBSTANTIAL EVIDENCE..............................275
IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE .. 275
Change of Name and
Cancellation or Correction of
Entries In
the Civil Registry.....................275
DIFFERENCES UNDER THE APPLICABLE RULES
(RULE 103, RULE 108, RA 9048)...................275
GROUNDS FOR CHANGE OF NAME (ANNEX D) 275
JURISPRUDENCE.............................................275

Absentees.........................................276
PURPOSE OF THE RULE................................276

WHO MAY FILE; WHEN TO FILE...................276

WHEN TERMINATED........................................276

Cancellation or Correction of
Entries in
the Civil Registry.....................277
ENTRIES SUBJECT TO CANCELLATION OR
CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048................................................................277
SUBSTANTIAL CHANGE.......................................... 277
APPROPRIATE ADVERSARY PROCEEDING..............277
PROCEDURAL REQUIREMENTS OF AN ADVERSARY
PROCEEDING..........................................................277

Appeals in Special
Proceeding.......................................277
JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN..................................................277
WHEN TO APPEAL...........................................278
MODES OF APPEAL.........................................278
RULE ON ADVANCE DISTRIBUTION...........278

ANNEX A.............................................................279
ANNEX B.............................................................282
ANNEX C.............................................................283
ANNEX D.............................................................289
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

PAGE 1
UP COLLEGE OF LAW
General Principles
CONCEPT OF REMEDIAL LAW
CONCEPT
Remedial statute or statutes:
0 relating to remedies or modes of procedure;
1 do not take away or create vested rights;
2 BUT operate in furtherance of rights already
existing. [Riano citing Systems Factor
Corporation v NLRC (2000)]
The Rules of Court, promulgated by authority of law,
have the force and effect of law, if not in conflict with
positive law [Inchausti & Co v de Leon (1913)]. The rule
is subordinate to the statute, and in case of conflict, the
statute will prevail. [Shioji v Harvey (1922)].
APPLICABILITY
The Rules of Court is applicable in ALL
COURTS, except as otherwise provided by the
SC [Rule 1, Sec. 2].
It governs the procedure to be observed in civil or
criminal actions and special proceedings [Rule 1,
Sec. 3]. It does not apply to the following cases:
[ELCINO]
0 Election cases,
1 Land registration cases,
2 Cadastral cases,
3 Naturalization cases,
4 Insolvency proceedings
5 Other cases not herein provided for
Except by analogy or in a suppletory character and
whenever practicable and convenient [Rule 4, Sec. 4]
PROSPECTIVITY/RETROACTIVITY
The Rules of Court are not penal statutes and cannot
be given retroactive effect [Bermejo v Barrios (1970)].
Rules of procedure may be made applicable to
actions pending and undetermined at the time of
their passage, and are deemed retroactive in
that sense and to that extent. [In the Matter to
Declare in Contempt of Court Hon. Simeon
Datumanong (2006)].
SUBSTANTIVE LAW AS DISTINGUISHED
FROM REMEDIAL LAW
REMEDIAL LAW OR PROCEDURAL LAW
0 provides a method of enforcing the rights
established by substantive law;
1 prescribes the method of enforcing rights or
obtaining redress for their invasion. [Bustos v
Lucero (1948)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
118
Judicial process for enforcing rights and duties
recognized by substantive law and for justly
administering remedy and redress for a disregard
or infraction of them. [Fabian v Desierto (1998)]
SUBSTANTIVE LAW
That part of the law which creates, defines and
regulates rights concerning life, liberty, or
property, or the powers of agencies or
instrumentalities for the administration of public
affairs [Bustos v Lucero (1948)]
RULE-MAKING POWER OF THE SUPREME COURT
5888 The Rules of Court was adopted and
promulgated by the Supreme Court pursuant
to the provisions of Sec 5(5) of Art. VIII of the
Constitution, vesting in it the power to:
5888 Promulgate rules concerning the
protection and enforcement of constitutional
rights, pleading, practice and procedure in
all courts, the admission to the practice of
law, the Integrated Bar, and legal assistance
to the underprivileged.
5889 The power to promulgate rules of
pleading, practice, and procedure is no
longer shared by the Supreme Court with
Congress, more so with the executive
[Riano citing Echegaray v Secretary of
Justice (1999)]
LIMITATIONS ON THE RULE-MAKING POWER OF THE
SUPREME COURT
Sec 5(5) of Art. VIII of the Constitution sets forth
the limitations to the power: [SUS]
0 that the rules shall provide a simplified and
inexpensive procedure for speedy disposition
of cases;
1 that the rules shall be uniform for courts of
the same grade; and
2 that the rules shall not diminish, increase or
modify substantive rights.
POWER OF THE SUPREME COURT TO AMEND AND
SUSPEND PROCEDURAL RULES
Power to amend remedial laws
0 The constitutional faculty of the Court to
promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)].
1 The SC has the sole prerogative to amend, repeal,
or even establish new rules for a more simplified
and inexpensive process, and the speedy
disposition of case [Neypes v CA (2005)]
PAGE 2
UP COLLEGE OF LAW CIVIL PROCEDURE
Power to suspend remedial laws
0 It is within the inherent power of the Supreme
Court to suspend its own rules in a particular case
in order to do justice [De Guia v De Guia (2001)].
1 When the operation of rules will lead to an
injustice or if their application tends to
subvert and defeat instead of promote and
enhance justice, their suspension is justified
[Republic v CA (1978)].
2 There is no absolute rule as to what
constitutes good and sufficient cause that will
merit suspension of the rules. The matter is
discretionary upon the Court [Republic v
Imperial Jr. (1999)].
3 The bare invocation of "the interest of substantial
justice" is not a magic wand that will automatically
compel this Court to suspend procedural rules
[Ramos v Sps Lavendia (2008)].
4 Procedural rules are not to be belittled or
dismissed simply because their non-
observance may have resulted in prejudice to a
party's substantive rights. Like all rules, they are
required to be followed except only for the most
persuasive of reasons when they may be
relaxed to relieve a litigant of an injustice not
commensurate with the degree of his
thoughtlessness in not complying with the
procedure prescribed. [Polanco v Cruz (2009)].
NOTE: Although not laws in the technical sense
of the term, Rules of Court, promulgated by
authority of law, have the force and effect of law.
[Riano citing Shioji v Harvey (1922)]
Applicability: Prospective
The Rules of Court shall govern cases brought
after they take effect, and also all further
proceedings then pending, EXCEPT to the
extent that in the opinion of the Court their
application would not be feasible or would work
injustice. [Riano citing Rule 114]
NATURE OF PHILIPPINE COURTS
MEANING OF A COURT
Definition
5888 A court is an organ of the government
belonging to the judicial department, the
function of which is the application of the
laws to controversies brought before it (and)
as well as the public administration of justice.
5889 Generally, the term describes an organ of the
government consisting of one person or of several
persons, called upon and authorized to administer
justice. It is also the place where justice is
administered. [Riano citing Blacks and
Am. Jur. and C. J. S.]
PAGE 3
BAR OPERATIONS COMMISSION
COURT AS DISTINGUISHED FROM A JUDGE
Court Judge
Tribunal officially
assembled under Simply an officer of such
authority of law tribunal
An organ of the Person who sits in court
government with a
personality separate and
distinct from judge
An office A public officer [Riano]
The circumstances of the court are not affected by
the circumstance that would affect the judge. The
continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the judge
presiding over it. In other words, the judge may
resign, become incapacitated, or be disqualified to
hold office, but the court remains. The death of the
judge does not mean the death of the court [Riano
citing ABC Davao Auto Supply v. CA (1998)].
CLASSIFICATION OF PHILIPPINE COURTS
Note: Please see succeeding subsections for
discussions on a to d.
0 Courts of law and equity
1 Courts of Original and Appellate jurisdiction
2 Courts of General and Special jurisdiction
3 Constitutional and statutory courts
4 Superior and Inferior courts
4.0Superior courts Courts which have the
power of review or supervision over
another and lower court.
4.1Inferior courts Those which, in relation to
another court, are lower in rank and
subject to review and supervision by the
latter. [Regalado]
5 Courts of record and not of record
5.0 Courts of record Those whose proceedings
are enrolled and which are bound to keep a
written record of all trials and proceedings
handled by them. [Regalado] One attribute of a
court of record is the strong presumption as to
the veracity of its records that cannot be
collaterally attacked except for fraud. All
Philippine courts, including inferior courts, are
now courts of record. [Riano]
5.1Courts not of record Courts which are
not required to keep a written record or
transcript of proceedings held therein.
UP COLLEGE OF LAW
COURTS OF ORIGINAL AND APPELLATE JURISDICTION
0 Courts of original jurisdiction Those courts
in which, under the law, actions or
proceedings may be originally commenced.
1 Courts of appellate jurisdiction Courts which
have the power to review on appeal the
decisions or orders of a lower court. [Regalado]
COURTS OF GENERAL AND SPECIAL JURISDICTION
5888 Courts of general jurisdiction Those
competent to decide their own jurisdiction and
to take cognizance of all kinds of cases, unless
otherwise provided by the law or Rules.
5889 Courts of special or limited jurisdiction
Those which have no power to decide their
own jurisdiction and can only try cases
permitted by statute. [Regalado]
CONSTITUTIONAL AND STATUTORY COURTS
0 Constitutional courts Those which owe their
creation and existence to the Constitution
and, therefore cannot be legislated out of
existence or deprived by law of the
jurisdiction and powers unqualifiedly vested
in them by the Constitution. e.g. Supreme
Court; Sandiganbayan is a constitutionally-
mandated court but created by statute.
1 Statutory courts Those created, organized
and with jurisdiction exclusively determined
by law. [Regalado]
COURTS OF LAW AND EQUITY
Philippine courts are both courts of law and
equity. Hence, both legal and equitable
jurisdiction is dispensed with in the same
tribunal [U.S. v. Tamparong (1998)]
PRINCIPLE OF JUDICIAL HIERARCHY
0 The judicial system follows a ladderized scheme
which in essence requires that lower courts
initially decide on a case before it is considered by
a higher court. Specifically, under the judicial
policy recognizing hierarchy of courts, a higher
court will not entertain direct resort to it unless the
redress cannot be obtained in the appropriate
courts. [Riano citing Santiago v. Vasquez (1993)]
1 The principle is an established policy necessary to
avoid inordinate demands upon the Courts time
and attention which are better devoted to those
matters within its exclusive jurisdiction, and to
preclude the further clogging of the Courts docket
[Lim v. Vianzon (2006)].
2 When the doctrine/principle may be disregarded:
A direct recourse of the Supreme Courts original
jurisdiction to issue writs (referring to the writs of
certiorari, prohibition, or mandamus) should be
allowed only when there are special and
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
important reasons therefor, clearly and
specifically set out in the petition. [Mangahas
v. Paredes (2007)]. The Supreme Court may
disregard the principle of hierarchy of courts
if warranted by the nature and importance of
the issues raised in the interest of speedy
justice and avoid future litigations [Riano].
DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF
JUDICIAL STABILITY
0 The principle holds that courts of equal and
coordinate jurisdiction cannot interfere with each
others orders [Lapu-lapu Development and Housing
Corp. v. Group Management Corp.(2002)] The
principle also bars a court from reviewing or
interfering with the judgment of a co-equal court over
which it has no appellate jurisdiction or power of
review [Villamor v. Salas (1991)].
1 The doctrine of non-interference applies with
equal force to administrative bodies. When the
law provides for an appeal from the decision of
an administrative body to the SC or CA, it
means that such body is co-equal with the RTC
in terms of rank and stature, and logically
beyond the control of the latter [Phil Sinter
Corp. v. Cagayan Electric Power (2002)].
Jurisdiction
JURISDICTION
Jurisdiction is defined as the authority to try, hear
and decide a case [Tolentino v. Leviste (2004)].
Judicial power includes the duty of the courts of
justice: [Art 8, Sec. 1, Constitution]
0 To settle actual controversies involving rights
which are legally demandable and enforceable;
1 To determine WON there has been a grave
abuse of discretion amounting to lack or
excess of jurisdiction on the part of any
government branch/ instrumentality.
All courts exercise judicial power. Only the
Supreme Court is the court created by the
Constitution [Art 8, Sec. 1, Constitution]. The
Sandiganbayan is a Constitutionally mandated
court, but it is created by statute. [PD 1486]
JURISDICTION IN GENERAL
JURISDICTION OVER THE PARTIES
Note: The mode of acquisition of jurisdiction
over the plaintiff and the defendant applies both
to ordinary and special civil actions.
PAGE 4
UP COLLEGE OF LAW
How jurisdiction over the plaintiff is acquired
Jurisdiction over the plaintiff is acquired by filing
of the complaint or petition. By doing so, he
submits himself to the jurisdiction of the court
[Davao Light & Power Co., Inc. v CA (1991)].
How jurisdiction over the defendant is
acquired Acquired by the
0 voluntary appearance or submission by the
defendant or respondent to the court or
1 by coercive process issued by the court to
him, generally by the service of summons [de
Joya v. Marquez (2006), citing Regalado]
In an action in personam, jurisdiction over the
person is necessary for the court to validly try
and decide the case, while in a proceeding in
rem or quasi in rem, jurisdiction over the person
of the defendant is not a prerequisite to confer
jurisdiction on the court provided the latter has
jurisdiction over the res [Alba v. CA (2005)].
JURISDICTION OVER THE SUBJECT MATTER
Meaning of jurisdiction over the subject matter
Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action,
and means not simply jurisdiction of the particular
case then occupying the attention of the court but
jurisdiction of the class of cases to which the
particular case belongs (Riano citing CJS).
It is the power to hear and determine cases of
the general class to which the proceedings in
question belong [Reyes v. Diaz (1941)]
How conferred and determined
0 It is conferred only by the Constitution or the law.
1 Jurisdiction CANNOT be:
1.0 fixed by agreement of the parties;
1.1 cannot be acquired through, or waived,
enlarged or diminished by, any act or
omission of the parties;
1.2neither can it be conferred by the
acquiescence of the court [Regalado
citing De Jesus v Garcia (1967)].
1.3cannot be subject to compromise [Civil
Code, Art 2035]
2 Jurisdiction over the subject matter is determined
by the allegations of the complaint and the reliefs
prayed for. [Gulfo v. Ancheta (2012)]
3 It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
0 Once attached to a court, it cannot be ousted
by subsequent statute.
Exception: The statute itself conferring new
jurisdiction expressly provides for retroactive
effect. [Southern Food v. Salas (1992)]
1 The filing of the complaint or appropriate initiatory
pleading and the payment of the prescribed
docket fee vest a trial court with jurisdiction over
the subject matter or the nature of the action [CB
v. CA (1992)](2008 Bar Exam).
Exception: Non-payment of docket fee does
not automatically cause the dismissal of the
case on the ground of lack of jurisdiction as
long as the fee is paid within the applicable
prescriptive or reglementary period, more so
when the party involved demonstrates a
willingness to abide by the rules prescribing
such payment. [Go v. Tong (2003)]
Jurisdiction versus the exercise of jurisdiction
0 Jurisdiction: the authority to hear
and determine a cause the right to act in a
case. [Arranza v. BF Homes (2000)].
Exercise of Jurisdiction.: the exercise of this
power or authority
1 Jurisdiction is distinct from the
exercise thereof. Jurisdiction is the authority
to decide a case and not the decision
rendered therein. When there is jurisdiction
over the subject matter, the decision on all
other questions arising in the case is but an
exercise of jurisdiction. [Herrera v. Baretto et
al (1913)]
Error of jurisdiction as distinguished from
error of judgment
Error of jurisdiction Error of judgment
It is one where the act It is one which the court
complained of was issuedmay commit in the
by the court without or in
exercise of its
excess of jurisdiction
jurisdiction [Cabrera v.
[Cabrera v. Lapid (2006)].
Lapid (2006)].
It includes errors of
procedure or mistakes in
the courts mistakes in
the courts findings
[Banco Filipino Savings
v. CA (2000)]
Correctible only by the Correctible by appeal
PAGE 5
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

Error of jurisdiction Error of judgment the filing or service of an answer. Lack of

extraordinary writ of
certiorari [Cabrera v Lapid
(2006)]
Renders a judgment void
or voidable [Rule 16 Sec.
1, Rule 65]
[Cabrera v Lapid (2006)]
Ground for reversal only
if it is shown that
prejudice has been
caused [Banco Espaol-
Filipino v Palanca (1918)]
jurisdiction over subject matter is a ground for
a motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised
as an affirmative defense in the answer.
[Riano citing Sec. 1(b) and 6 of Rule 16].
0 Jurisdiction over subject matter may be raised
at any stage of proceedings, even for the first
time on appeal [Calimlim v. Ramirez (1982)]
Effect of estoppel on objections to jurisdiction

How jurisdiction is conferred and determined Jurisdiction by estoppel

Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement of
the action determines the jurisdiction of the court.
Doctrine of primary jurisdiction
0 Courts cannot and will not resolve a
controversy involving a question which is within
the jurisdiction of an administrative tribunal,
especially where the question demands the
exercise of sound administrative discretion
requiring the special knowledge, experience
and services of the administrative tribunal to
determine technical and intricate matters of fact
[Paloma v. Mora (2005)].
1 Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency has
determined some question or some aspect of
some question arising in the proceeding before
the court [Riano citing Omictin v. CA (2007)]
Doctrine of adherence of jurisdiction
0 Also known as doctrine of continuity of jurisdiction
1 The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes of
the case [Bantua v. Mercader (2001)].
2 As a consequence, jurisdiction is not affected
by a new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
3 where there is an express provision in the statute
4 the statute is clearly intended to apply to
actions pending before its enactment [Riano
citing People v. Cawaling (1998)].
5 Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement
of the action determines the jurisdiction of the
court. [Municipality of Kananga v Madrona (2003)]
Objections to jurisdiction over the subject matter
0 The Court may ex mero motu, or on its own
initiative take cognizance of lack of
jurisdiction [Fabian v. Desierto (1998)].
1 Earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause
of action. Jurisdiction is conferred by law. Where
there is none, no agreement of the parties can
provide one. Settled is the rule that the decision of
a tribunal not vested with appropriate jurisdiction is
null and void. [SEAFDEC-AQD v. NLRC (1992)]
Exception: Participation in all stages of the case
before the trial court, that included invoking its
authority in asking for affirmative relief, effectively
barred petitioner by estoppel from challenging the
courts jurisdiction. [Soliven v. Fastforms (2004)]
JURISDICTION OVER THE ISSUES
0 The power of the court to try and decide
issues raised in the pleadings of the parties
[Reyes v. Diaz (1941)]
1 How conferred & determined:
1.0 Pleadings filed by the parties,
1.1Agreement in a pre-trial order or
stipulation [Rule 18, Sec. 2], or
1.2Implied consent as by the failure of a party to
object to evidence on an issue not covered by
the pleadings in Rule 10, Sec. 5. [Regalado]
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION
0 Refers to the courts jurisdiction over the thing or
the property which is the subject of the litigation.
1 Acquired either by
0 actual or constructive seizure by the court
of the thing in question, thus placing it in
custodia legis (e.g. attachment or
garnishment) or
1 by provision of law which recognizes in the
court the power to deal with the property or
subject-matter within its territorial jurisdiction
(e.g. land registration) [Regalado]

PAGE 6
UP COLLEGE OF LAW
SPECIFIC JURISDICTION
JURISDICTION OF COURTS
Supreme Court
The judicial power shall be vested in one SC
and in such lower courts as may be established
by law. [Art. 8, Sec. 1, Constitution]
Powers of the Supreme Court [Art. 8, Sec. 5,
Constitution]
4 Such findings are contrary to the
admissions of both parties.
0 EXERCISE original
jurisdiction over:
0 Cases affecting ambassadors and other
public ministers and consuls;
RTC also has concurrent jurisdiction
1 Petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas
corpus.
examination of the
probative value of the
1 Review/revise/reverse/modify/affirm
on appeal or certiorari, final judgments/orders of
lower courts in:
0 All cases in which the constitutionality/validity
of any treaty, international or executive
agreement,law,presidential
decree/proclamation/order/ instruction,
ordinance or regulation is in question;
Note: power of review contemplates the ff.
courts: CA, Sandiganbayan, CTA, RTC,
and other courts authorized by law.
1 All cases involving the legality of any tax/
impost/ assessment/ toll, or any penalty
imposed in relation thereto;
2 All cases in which the jurisdiction of any
lower court is in issue;
(4) All criminal cases in which the penalty
imposed is reclusion perpetua or higher;
0 All cases in which only errors/questions of
law are involved.
Exceptions: [Josefa v. Zhandong (2003)]
0 The conclusion is grounded on
speculations/ surmises /conjectures;
1 The inference is manifestly
mistaken/absurd/impossible;
2 There is grave abuse of discretion;
3 The judgment is based on a
misapprehension of facts;
4 The findings of fact are conflicting;
5 There is no citation of specific evidence
on which the factual findings are based;
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
0 The finding of absence of facts is
contradicted by the presence of
evidence on record;
1 The findings of the CA are contrary to
those of the trial court;
2 The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a
different conclusion;
3 The findings of the CA are beyond the
issues of the case;
Distinction between Questions of Law and Fact
Question of law Question of fact
There is a question of
law when the doubt or There is a question of
difference arises as to fact when the doubt or
what the law is on a controversy arises as to
certain state of facts, and the truth or falsity of the
which does not call for an alleged facts [Republic v.
Medida (2012)]
evidence presented by
the parties-litigants.
[Republic v. Medida
(2012)]
0 Assign temporarily judges of lower courts to
other stations as public interest may require,
which shall not last 6 six months without the
consent of the judge concerned.
1 Order a change of venue or place of trial to
avoid a miscarriage of justice.
2 Promulgate rules on:
0 Protection and enforcement of
constitutional rights;
1 Pleading/practice/procedure in all courts;
2 Admission to the practice of law;
3 The Integrated Bar;
4 Legal assistance to the under-privileged.
Guidelines on the rules:
(1) Provide a simplified and inexpensive procedure
for the speedy disposition of cases;
0 Uniform for all courts of the same grade;
1 Not diminish/increase/modify substantive
rights.
2 Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the SC.
PAGE 7
UP COLLEGE OF LAW CIVIL PROCEDURE
0 Appoint all Judiciary officials/employees in
accordance with the Civil Service Law.
Constitutional commissions
0 COMELEC and COA Unless otherwise
provided by this Constitution or by law, any
decision/order /ruling of each Commission may
be brought to the SC on certiorari by the
aggrieved party, within 30 days from receipt of a
copy thereof. [Art. 9-A, Sec. 7, Constitution]
1 CSC - Judgments/decisions/orders are within the
exclusive appellate jurisdiction of the CA through
Rule 43. [BP 129, as amended by RA 7902]
2 Sandiganbayan
0 Decisions and final orders of the
Sandiganbayan shall be subject to review
on certiorari by the SC in accordance with
Rule 45 of the Rules.
1 Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for review
and judgment. [PD 1606 Sec 7]
Court of Appeals [Sec. 9, BP 129]
Original Jurisdiction
To issue writs of mandamus, prohibition,
certiorari, habeas corpus and quo warranto, and
auxiliary writs/processes, whether or not in aid of
its appellate jurisdiction.
Note: former rule only allowed the CA to issue
auxiliary writs and processes in aid of jurisdiction.
The power is concurrent with the SC.
Exclusive Original Jurisdiction
Annulment of RTC judgments.
Exclusive Appellate Jurisdiction
0 Final
judgments/decisions/resolutions/orders/awards
of:
0 RTCs;
1 Quasi-judicial agencies/instrumentalities/
boards/commissions including:
0 SEC;
1 Social Security Commission;
2 ECC;
3 CSC.
Exception: Those falling within the SCs appellate
jurisdiction of the Supreme Court in accordance with:
0 The Constitution;
1 Labor Code;
2 BP 129;
PAGE 8
BAR OPERATIONS COMMISSION
0 Sec. 17, Par. 3(1) and Par. 4(4) of the
Judiciary Act of 1948.
Review of decisions by the NLRC: [St.
Martins Funeral Home v. NLRC (1998)]
Supposed appeals from the NLRC to the SC are
interpreted and hereby declared to mean and
refer to Petitioners for Certiorari under Rule 65.
All such petitions should be initially filed in the
CA in strict observance of the doctrine on the
hierarchy of courts.
All special civil actions arising out of any decision
or final resolution or order of the NLRC filed with
the SC after June 1, 1999 shall not longer be
referred to the CA, but shall forthwith be dismissed.
Powers of the Court of Appeals
0 Try cases and conduct hearings;
1 Receive evidence
2 Perform any and all acts necessary to resolve
factual issues raised, including the power to grant
and conduct new trials or further proceedings.
Trials or hearings must be continuous and must
be completed within 3 months, unless extended
by the Chief Justice.
Court of Tax Appeals [Sec. 7, RA 1125, as
amended by RA 9282]
Exclusive appellate jurisdiction to review by appeal
0 Decisions of the Commissioner of Internal
Revenue in cases involving disputed
assessments, refunds of internal revenue taxes,
fees or other charges, penalties in relation thereto,
or other matters arising under the National Internal
Revenue or other laws administered by the BIR;
1 Inaction by the Commissioner of Internal Revenue
in cases involving disputed assessments, refunds
of internal revenue taxes, fees or other charges,
penalties in relations thereto, or other matters
arising under the National Internal Revenue Code
or other laws administered by the BIR, where the
National Internal Revenue Code provides a
specific period of action, in which case the inaction
shall be deemed a denial;
2 Decisions, orders or resolutions of the RTCS
in local tax cases originally decided or
resolved by them in the exercise of their
original or appellate jurisdiction;
3 Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees
or other money charges, seizure, detention or
release of property affected, fines, forfeitures or
other penalties in relation thereto, or other
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Exclusive appellate jurisdiction in criminal offenses:
0 Over appeals from the judgments, resolutions or
orders of the RTCs in tax cases originally decided
by them, in their respected territorial jurisdiction.
matters arising under the Customs Law or other 1 Over petitions for review of the judgments,
laws administered by the Bureau of Customs; resolutions or orders of the RTCs in the exercise
256 of their appellate jurisdiction over tax cases

Decisions of the
Central Board of Assessment Appeals 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;
257

Decisions of the Secretary

of Finance on customs cases elevated to him
automatically for review from decisions of the
Commissioner of Customs which are adverse to
the Government under Section 2315 of the Tariff
and Customs Code;
258

Decisions of the
Secretary of Trade and Industry, in the case of
nonagricultural product, commodity or article,
and the Secretary of Agriculture in the case of
agricultural product, commodity or article,
involving dumping and countervailing duties
under Sec 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.

Jurisdiction over cases involving criminal

offenses: General rule: Exclusive original
jurisdiction over all criminal offenses arising from
violations of the National Internal Revenue Code or
Tariff and Customs Code and other laws
administered by the BIR or the Bureau of Customs

BUT, offenses or felonies where the principal

amount of taxes and fees, exclusive of charges
and penalties, claimed is less than P1,000,000.00
or where there is no specified amount claimed
shall be tried by the regular Courts and the
jurisdiction of the CTA shall be appellate.

Any provision of law or the Rules of Court to the

contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of
civil liability for taxes and penalties shall at all
times be simultaneously instituted with, and
jointly determined in the same proceeding by the
CTA, the filing of the criminal action being
deemed to necessarily carry with it the filing of
the civil action, and no right to reserve the filling
of such civil action separately from the criminal
action will be recognized.

originally decided by the MeTCs, MTCs and
MCTCs in their respective jurisdiction.
Jurisdiction over tax collection cases as herein
provided: General rule: Exclusive original jurisdiction
in tax collection cases involving final and executory
assessments for taxes, fees, charges and penalties:
BUT, collection cases where the principal amount
of taxes and fees, exclusive of charges and
penalties, claimed is less than P1,000,000.00 shall
be tried by the proper MTC, MeTC and RTC
Exclusive appellate jurisdiction in tax
collection cases: Over appeals from the
judgments, resolutions or orders of the RTCs in
tax collection cases originally decided by them,
in their respective territorial jurisdiction.
Over petitions for review of the judgments,
resolutions or orders of the RTCs in the Exercise
of their appellate jurisdiction over tax collection
cases originally decided by the MeTCs, MTCs
and MCTCs, in their respective jurisdiction."
NOTE: RA 9282 elevated CTAs rank to the level of
the Court of Appeals with special jurisdiction.
PAGE 9
Sandiganbayan [Sec.4 of RA 8249]
0 Decisions and final orders of the
Sandiganbayan shall be subject to review on
certiorari by the Supreme Court in
accordance with Rule 45 of the Rules.
1 Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for
review and judgment. [PD 1606 Sec 7]
Original Exclusive Jurisdiction
0 Violations of RA 3019 (Anti-graft and Corrupt
Practices Law);
1 RA 1379 (Forfeiture of Illegally Acquired Wealth);
2 Crimes by public officers or employees embraced
in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes
committed by Public Officers) namely:
0 Direct Bribery under Art. 210 as amended
by BP 871, May 29, 1985;
1 Indirect Bribery under Art. 211 as
amended by BP 871, May 29, 1985;
2 Qualified Bribery under Art. 211-A as
amended by RA 7659, Dec. 13, 1993;
3 Corruption of public officials under Art. 212
where one or more of the accused are officials
occupying the following positions in the
government whether in a permanent, acting
UP COLLEGE OF LAW CIVIL PROCEDURE
or interim capacity, at the time of the
commission of the offense:
0 Officials of the executive branch
occupying the positions of regional
director and higher, otherwise
classified as Grade 27 and higher, of
the Compensation and Position
Classification Act of 1989 Republic Act
No. 6758) specifically including:
1 Provincialgovernors,vice-governors,
membersofthesangguniang
panlalawigan, provincial treasurers,
assessors, engineers and other
provincial department heads;
2 City mayors, vice-mayors, members of
the sangguniang panglungsod, city
treasurers, assessors, engineers and
other department heads;
3 Officials of the diplomatic service
occupying the position of consul and
higher;
4 Philippine Army and Air force colonels,
naval captains and all officers of higher
rank;
5 Officers of the PNP while occupying
the position of Provincial Director and
those holding the rank of Senior
Superintendent or higher;
6 City and provincial prosecutors and
their assistants; officials and the
prosecutors in the Office of the
Ombudsman and special prosecutor ;
7 President, directors or trustees or
managers of government owned or
controlled corporations, state universities
or educational institutions or foundations;
0 Members of Congress and Officials thereof
classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
1 Members of the Judiciary without prejudice
to the provision of the Constitution;
2 Chairmen and members of Constitutional
Commissions, without prejudice to the
provision of the Constitution;
3 All other national and local officials
classified as Grade 27 and higher under
the Compensation and Position
Classification Act of 1989.
0 Other offenses or felonies whether simple or
complexed with other crimes committed in
relation to their office by the public officials
and employees mentioned above;
1 Civil and Criminal Cases filed pursuant to and in
connection with EO 1, 2, 14 & 14-A issued in 1986
2 Petitions for issuance of Writ of mandamus,
prohibition, certiorari, habeas corpus, injunction
PAGE 10
BAR OPERATIONS COMMISSION
and other ancillary writs and processes in aid
of its appellate jurisdiction;
0 Provided, jurisdiction is not exclusive of the
Supreme Court
1 Petitions for Quo Warranto arising or that
may arise in cases filed or that may be filed
under EO 1, 2, 14 & 14- A
2 OTHERS provided the accused belongs to
Salary Grade 27 or higher:
0 Violation of RA 6713 - Code of Conduct
and Ethical Standards
1 Violation of RA 7080 The Plunder Law
2 Violation of RA 7659 - The Heinous Crime Law
3 RA 9160 - Violation of The Anti-Money
Laundering Law when committed by a
public officer
4 PD 46 referred to as the gift-giving decree
which makes it punishable for any official or
employee to receive directly or indirectly and
for the private person to give or offer to give
any gift, present or other valuable thing on any
occasion including Christmas, when such gift,
present or valuable thing is given by reason of
his official position, regardless of whether or
not the same is for past favors or the giver
hopes or expects to receive a favor or better
treatment in the future from the public official or
employee concerned in the discharge of his
official functions. Included within the prohibition
is the throwing of parties or entertainment in
honor of the official or employee or his
immediate relatives.
5 PD 749 which grants immunity from
prosecution to any person who voluntarily
gives information about any violation of
Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the
Customs and Tariff Code and other
provisions of the said Codes penalizing
abuse or dishonesty on the part of the public
officials concerned and other laws, rules and
regulations penalizing graft, corruption and
other forms of official abuse and who
willingly testifies against the public official or
employee subject to certain conditions.
NOTE: Private individuals can be sued in cases
before the Sandiganbayan if they are alleged to
be in conspiracy with the public officer.
Appellate Jurisdiction
Over final judgments, resolutions or orders of the
RTC whether in the exercise of their original or
appellate jurisdiction over crimes and civil cases
falling within the original exclusive jurisdiction of
the Sandiganbayan but which were committed by
public officers below Salary Grade 27.
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Note: The Sandiganbayan has jurisdiction to
grant petitions for the issuance writ writs of
mandamus, prohibition, certiorari, habeas
corpus, injunctions, and other ancillary writs and
processes in aid of its appellate jurisdiction. [RA
7975, as amended][asked in 2009 BAR]
Regional Trial Courts
Exclusive Original Jurisdiction in Civil Cases [Sec.
19, BP 129, Asked in the 2002 Bar Examinations]
Incapable of pecuniary estimation (2000 Bar Exam);
6 Rescission is a counterpart of
specific performance therefore also incapable of
pecuniary estimation. [Lapitan v. Scandia (1968)]
7 Action for declaration of nullity
of a deed of partition is incapable of
pecuniary estimation. [Russel v. Vestil
(1999)]
8 An action for expropriation is
incapable of pecuniary estimation. [Bardillon v.
Masili (2003)]

Title to, or possession of, real property (or any interest

0 If the action is primarily for the therein) where the propertys assessed value exceeds
recovery of a sum of money, the claim is P20K or P50K (for civil actions in Metro Manila);
considered capable of pecuniary estimation,
and jurisdiction over the action will depend on
the amount of the claim. [RCPI v. CA (2002)]

1 If the basic issue is something other

than the right to recover a sum of money, if the
money claim is purely incidental to, or a
consequence of, the principal relief sought, the
action is one where the subject of the litigation
may not be estimated in terms of money. [Soliven
v. Fastforms (1992)]

2 If the thing sought to be

deposited or consigned is a sum of money,
the amount of the debt due is determinable
and capable of pecuniary estimation. [Ascue
v. CA (1991)]

3 Action for support is incapable of

pecuniary estimation because the court is
asked to determine first WON the plaintiff is
indeed entitled to support. [Baito v. Sarmiento
(1960)]

4 Action for specific performance

is incapable of pecuniary estimation.
[Manufacturers Distributors v. Yu Siu Liong
(1966)]

5 The jurisdiction of the

respective courts is determined by the value
of the demand and not the value of the
transaction out of which the demand arose.
(1) The alternative prayer for specific
performance is also of the same value, for
the alternative prayer would not have been
made in the complaint if one was more
valuable than the other. [Cruz v. Tan (1950)]

Exception: Forcible entry into and unlawful
detainer of lands/buildings
Admiralty and maritime jurisdiction where the
demand/claim exceeds P300K or P400K (in
Metro Manila);
0 Maritime and admiralty cases involve trade and
transactions in the sea. Maritime jurisdiction
includes maritime tort. [Negre v. Cabahug (1966)]
Probate (testate and intestate) where the gross
value of the estate exceeds P300K or P400K (in
Metro Manila);
Marriage contract and marital relations;
General Original Jurisdiction
All cases not within the exclusive jurisdiction of
any court/tribunal/person/ body exercising
judicial or quasi-judicial functions;
Within the exclusive original jurisdiction of a
Juvenile and Domestic Relations Court and of
the Court of Agrarian Relations;
All other cases where the demand (exclusive of
interest, damages of whatever kind, attorney's
PAGE 11
fees, litigation expenses and costs) or the value
of the property in controversy exceeds P300K or
P400K in Metro Manila.
0 The exclusion of the term damages of
whatever kind in determining the jurisdictional
amount under Sec. 19(8) and Sec. 33 (1) of BP
129, as amended by RA 7691, applies to cases
where the damages are merely incidental to or
a consequence of the main cause of action.
However, if 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.[Admin
Circ. 09-94]
1 Actions for damages based on quasi-delicts are
primarily and effectively actions for the recovery of
a sum of money for the damages suffered
because of the defendants alleged tortious acts.
This money claim is the principal relief sought, and
is not merely incidental thereto or a consequence
thereof. [Iniego v. Purganan (2006)]
Original Jurisdiction [Sec. 21, BP 129]
0 Certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be
enforced in any part of their respective regions;
CONCURRENT jurisdiction with SC and CA
UP COLLEGE OF LAW
causes of action, WON the causes of action
4 Actions affecting ambassadors and
other public ministers and consuls.
CONCURRENT jurisdiction with SC
Exclusive Appellate Jurisdiction [Sec. 22, BP 129]
All cases decided by MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions. Metropolitan,
Municipal and Municipal Circuit Trial Courts
Family Courts
Exclusive Original Jurisdiction
0 Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
1 Petitions for adoption of children and
revocation thereof;
2 Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property
relations of husband and wife or those living
together under different status and
agreements, and petitions for dissolution of
conjugal partnership of gains;
3 Petitions for support and/ or acknowledgement;
4 Summary judicial proceedings brought under
the Family Code;
5 Petitions for declaration of status of children as
abandoned, dependent or neglected children,
for voluntary or involuntary commitment of
children, and for suspension, termination or
restoration of parental authority under PD 603,
EO 56 s. 1986 and other related laws;
6 Cases for domestic violence against women
and children, as defined therein but which do
not constitute criminal offenses subject to
criminal prosecution and penalties.
Metropolitan Trial Courts/Municipal Trial Courts
Exclusive Original Jurisdiction [Sec. 33, BP 129]
0 Civil actions and probate proceedings (testate and
intestate), including the grant of provisional remedies,
where the value of the personal property, estate or
amount of the demand does not exceed P300K or
P400K (in Metro Manila) (value excludes of interest,
damages of whatever kind, attorneys fees, litigation
expenses, and costs);
0 Interest, damages of whatever kind,
attorney's fees, litigation expenses and
costs shall be included in the
determination of the filing fees.
1 If there are several claims or causes of actions
between the same/different parties in the same
complaint, the amount of the demand shall be
the totality of the claims in all the
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
arose out of the same/different transactions.
23 Forcible entry and unlawful detainer
4 If the defendant raises the
question of ownership in his pleadings and
the question of possession cannot be
resolved without deciding the issue of
ownership, the issue of ownership shall be
resolved only to determine the issue of
possession.
5 That the MeTC has jurisdiction
even in cases where the issue of possession is
closely intertwined with the issue of ownership
is now a settled doctrine in ejectment
proceedings. [Heirs of B. Hernandez v. Vergara
(2006)]
6 The authority granted to the MeTC
to preliminarily resolve the issue of ownership
to determine the issue of possession ultimately
allows it to interpret and enforce the contract or
agreement between the plaintiff and the
defendant. However, MeTCs ruling on the
rights of the parties based on its interpretation
of their contract is, of course, not conclusive,
but is merely provisional and is binding only
with respect to the issue of possession. [Union
Bank v. Maunlad Homes (2012)]
24 All civil actions that involve title to, or
possession of, real property (or any interest
therein) where the assessed value of the
property (or interest therein) does not exceed
P20K or P50K (in civil actions in Metro Manila).
4 Value excludes interest,
damages of whatever kind, attorneys
fees, litigation expenses and costs
5 If land is not declared for taxation
purposes, the value of such property shall be
determined by the assessed value of the
adjacent lots.
25 All civil cases subject to summary procedure.
Delegated Jurisdiction in Cadastral and Land
Registration Cases [Sec. 34, BP 129]
0 Lots where there is no controversy/ opposition; or
1 Contested lots the value of which does not
exceed P100K.
0 The value is to be ascertained:
0 By the claimants affidavit;
1 By agreement of the respective
claimants, if there are more than one;
2 From the corresponding tax declaration of
the real property.
1 MTC decisions in cadastral and land
registration cases are appealable in the
same manner as RTC decisions.

PAGE 12
UP COLLEGE OF LAW
Shariah Courts
Original Jurisdiction [Article 143, CMPL]
0 All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
1 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;
2 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;
3 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
4 All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all
other auxiliary writs and processes in aid of
its appellate jurisdiction.
Concurrent Jurisdiction with Civil Courts
23 Petitions by Muslim for the constitution of a
family home, change of name and commitment
of an insane person to an asylum;
24 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
25 All special civic actions for interpleader or
declaratory relief wherein the parties are
Muslims or the property involved belongs
exclusively to Muslims
Sharia Circuit Courts are courts where Muslims
can file cases involving the following:
0 Offenses defined and punished under PD 1083
1 Disputes relating to :
1.0 Marriage
1.1 Divorce
1.2 betrothal or breach of contract to marry
1.3 customary dower (mahr)
1.4 disposition and distribution of property
upon divorce
1.5maintenance and support and consolatory
gifts (muta)
1.6 restitution of marital right
1.7 Disputes relative to communal
properties
NOTE: The Sharia District Court or the Sharia Circuit
Court may constitute an Agama Arbitration Council
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
to settle certain cases amicably and without
formal trial.
The Council is composed of the Clerk of Court
as Chairperson and a representative of each of
the conflicting parties.
JURISDICTION OVER SMALL
CLAIMS, CASES
COVERED BY THE RULES ON SUMMARY
PROCEDURE AND BARANGAY CONCILIATION
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small
Claims Cases effective October 1, 2008]
DEFINITION
Small claims courts are courts of limited
jurisdiction that hear civil cases between private
litigants [Rationale of Proposed Rule].
PURPOSE
The purpose of small claims process is to
provide an inexpensive and expeditious means
to settle disputes over small amounts [Riano].
SCOPE
This rule governs the procedure in actions before
the Metropolitan trial Courts, Municipal Trial Courts
in Cities, Municipal Trial Courts and Municipal
Circuit Trial Courts for payment of money where
the value of the claim does not exceed One
Hundred Thousand Pesos (P100,000.00) exclusive
of interest and costs. [Sec. 2, Scope]
APPLICABILITY
The Metropolitan Trial Courts, Municipal Trial
Courts in Cities, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall apply this
Rule in all actions which are:
0 purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment
or reimbursement of sum of money, and
1 the civil aspect of criminal action, or reserved
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules
of Criminal Procedure.
These claims or demands may be:
23 For money owed under any of the following;
23 Contract of Lease;
24 Contract of Loan;
25 Contract of Services;
26 Contract of Sale; or
27 Contract of Mortgage;
24 For damages arising from any of the following;
23 Fault or negligence;
24 Quasi-contract; or
25 Contract;
PAGE 13
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

Cause of action Action

0 The enforcement of a barangay amicable
settlement or an arbitration award involving a
money claim covered by this Rule pursuant (a) A cause of action is Ordinary suit in a court of
to Sec. 417 of RA 7160, otherwise known as the basis of the justice, by which one
the Local Government Code of 1991. [Sec. 4, action filed [Rule 2, party prosecutes another
Applicability] Sec.1] for the enforcement or
(b) Fact or combination protection of a right, or
PROHIBITED PLEADINGS of facts which affords the prosecution or
The following pleadings, motions, and petitions shall a party a right to redress of a wrong
not be allowed in the cases covered by this Rule: judicial interference
0 Motion to dismiss the compliant except on the in his behalf. [Into v.
ground of lack of jurisdiction; Valle (2005)]
1 Motion for a bill of particulars;
2 Motion for new trial, or for reconsideration of a MEANING OF ORDINARY CIVIL ACTIONS
judgment, or for reopening of trial; An ordinary civil action is one that is governed by the
3 Petition for relief from judgment; rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]
4 Motion for extension of time to file pleadings,
affidavits, or any other paper; MEANING OF SPECIAL CIVIL ACTIONS
5 Memoranda; A special civil action is one that is subject to the
6 Petition for certiorari, mandamus, or specific rules prescribed for a special civil action;
prohibition against any interlocutory order it is also governed by the rules for ordinary civil
issued by the court; actions [Rule 1, Sec. 3(a) par 2]
7 Motion to declare the defendant in default;
8 Dilatory motions for postponement; MEANING OF CRIMINAL ACTIONS
9 Reply; A criminal action is one by which the State
10 Third-party complaints; and prosecutes a person for an act or omission
11 Interventions. [Sec. 14, Prohibited pleadings punishable by law. [Rule 1, Sec. 3(b)]
and motions]
CIVIL ACTIONS VERSUS SPECIAL
TOTALITY RULE PROCEEDINGS A civil action is one by which a
Where there are several claims or causes of party sues another for the enforcement or
actions between the same or different parties, protection of a right, or the prevention or redress
embodied in the same complaint, the amount of of a wrong. [Rule 1, Sec. 3(a) par 1]
the demand shall be the totality of the claims in
all the causes of action, irrespective of whether A special proceeding is a remedy by which a
the causes of action arose out of the same or party seeks to establish a status, a right, or a
different transaction [Riano citing Pantranco particular fact. [Rule 1, Sec. 3 (c)]
North Express v Standard Insurance (2005)]
DISTINCTIONSBETWEEN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS (Asked in the 1998 Bar Exam)
Action Special Proceeding
Actions
As to Parties
Actions, in general: An ordinary suit in a court of Involves 2 or more parties Involves at least 1 party
justice by which one party prosecutes another or 2 or more
for the enforcement/ protection of a right or the parties in proper cases
prevention/redress of a wrong [Santos v. Vda. As to cause of action
De Caparas, (1959)] Involves a right and a May involve a right, but
violation of such right by there need not be a
ACTION VS CAUSE OF ACTION the defendant which violation of this right
(Asked in the 1999 Bar Exam) causes some
Cause of action Action damage/prejudice upon
the plaintiff
As to formalities

PAGE 14
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

Action Special Proceeding Real action Personal Mixed action

action
Ownership or Personal Both real and
Requires the application Requires no such possession of property is personal
of legal remedies in formalities, as it real property is sought to be properties are
accordance with the may be granted upon involved recovered or involved
prescribed rules application damages for
As to governing rules breach of
Ordinary rules of Special rules of Contract or the
procedure procedure enforcement of
As to appeal from an interlocutory a contract are
Order sought
Founded on Founded on Founded on
Cannot be directly and Can be immediately
immediately appealed to and directly appealed privity of real privity of both
the appellate court until to the appellate court estate contract
after final judgment on Filed in the Filed in the The rules on
the merits
court where the
court where the venue of real
PERSONAL ACTIONS AND REAL ACTIONS property (or any
plaintiff or any actions govern
Real Actions: Actions affecting title to or portion thereof)
of the
possession of real property, or interest therein. is situated defendants
[Rule 4, Sec. 1 par 1] resides, at the
plaintiffs
Personal Actions: All other actions are personal option
actions. [Rule 4, Sec.2] LOCAL AND TRANSITORY ACTIONS

IMPORTANCE OF DISTINCTION: for purposes of Local action Transitory action

determining the venue of the action (Riano) (a) One that could be (a) One that could be
23 Real actions shall be commenced and tried in instituted in one prosecuted in any one
the proper court which has jurisdiction over the specific place [Manila of several places
area wherein the real property involved, or a Railroad v. Attorney- [Manila Railroad v.
portion thereof, is situated. [Rule 4, Sec.1] General (1911)] Attorney-General
24 Personal actions may be commenced and (b) Venue depends upon (1911)]
tried where the plaintiff or any of the principal the location of the (b) Its venue depends
plaintiffs resides, or where the defendant or property involved in upon the residence of
any of the principal defendants resides, or in the litigation (Riano) the plaintiff or the
the case of a non-resident defendant, where defendant at the
he may be found, at the election of the option of the plaintiff
plaintiff. [Rule 4, Sec.2] (Riano)
Note: Not every action involving a real property is a Actions in rem, in personam and quasi in rem
real action because the realty may only be incidental [Riano citing Domagas v. Jensen, (2005) and Biaco
to the subject matter of the suit. To be a real action, it v. Philippine Countryside Rural Bank, (2007)]
is not enough that the action must deal with real
property. It is important that the matter in litigation Action in rem Action in Action
must also involve any of the following issues: title to, personam quasi in rem
ownership, possession, paritition, foreclosure or Directed Directed Directed
mortgage or any interest in real property. (Riano) against the against against
thing itself particular particular
Real action Personal Mixed action persons persons
action

PAGE 15
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Action in rem Action in Action Action in rem Action in Action

personam quasi in rem personam quasi in rem
Jurisdiction Jurisdiction Jurisdiction Ex: Accion Ex: Action for Ex: Action for
over the person over the person over the person reivindicatoria; specific partition; action
of the of the of the annulment of performance; to foreclose
defendant is defendant is defendant is marriage; action to real estate
NOT required required not required as naturalization recover money mortgage
long as proceedings or property
jurisdiction over (real or
the res is personal)
acquired
A proceeding to An action to A proceeding to The question of whether the trial court has
determine the impose subject the jurisdiction depends on the nature of the action,
state/condition responsibility or interest of a i.e., whether the action is in personam, in rem,
of a thing liability upon a named or quasi in rem. [Riano citing Biaco v. Philippine
person directly defendant over Countryside Rural Bank (2007)]
a particular
property to an The distinction is important to determine whether
obligation/lien or not jurisdiction over the person of the
burdening it defendant is required and consequently to
Deal with the determine the type of summons to be employed.
[Riano citing Gomez v. Court of Appeals (2004)]
status,
ownership or
liability of a
particular
property but Cause of Action
which are
intended to MEANING OF CAUSE OF ACTION
operate on A cause of action is the act or omission by which a
these questions party violates a right of another. [Rule 2, Sec.2]
only as
between the ELEMENTS OF A CAUSE OF ACTION [cited in
particular Riano]
parties to the 768Plaintiffs legal right;
proceedings 769Defendants correlative obligation to respect
and not to plaintiffs right;
ascertain or 770Defendants act/omission in violation of
cut-off the plaintiffs right [Ma-ao Sugar Central v. Barrios
rights or (1947)] (Asked in the 1997 Bar Exam).
interest of all
possible Every ordinary civil action must be based on a
claimants cause of action [Rule 2, Sec. 1]
[Domagas v.
Jensen (2005)] A cause of action stems from the sources of
Judgment is Judgment is Judgment is obligations under Art. 1156, CC - Law, Contract,
binding on the binding only binding upon Quasi-contract, Acts and omissions punishable
whole world upon parties particular by law and Quasi-delict. [Sagrada Orden etc v.
impleaded or persons National Coconut Corporation (1952)]
their successors
in interest

PAGE 16
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RIGHT OF ACTION VERSUS CAUSE OF

ACTION [Regalado] The act of dividing a single or indivisible cause
Right of action Cause of action of action into several parts or claims and
bringing several actions thereon. (Regalado)

The remedial right or The delict or wrongful EFFECTS OF SPLITTING A CAUSE OF ACTION : [Taken
right to relief granted by act or omission from 2011 Reviewer]
law to a party to institute committed by the 0 The filing of one or a judgment upon the
an action against a defendant in violation of merits in any one is available as a ground for
person who has the primary rights of the the dismissal of the others. [Rule 2, Sec.4]
committed a delict or plaintiff 1 Filing of the 1st complaint may be pleaded in
wrong against him abatement of the 2nd complaint, on the
Right to sue as a The delict or wrong ground of litis pendentia; or
consequence of the 2 A judgment upon the merits in any of the
delict complaints is available as ground for
Whether such acts give Determined by the dismissal of the others based on res judicata.
him right of action averments in the 3 A MTD under Rule 16 Sec. 1(e) or (f) may be filed
determined by pleading regarding the in order that the complaint may be dismissed.
substantive law acts committed by the
defendant BASIS: A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3]
Note: There can be no right of action without a
cause of action being first established [Regalado PURPOSE [City of Bacolod v. SM Brewery (1969)]
citing Espaol v. The Chairman of PVA (1985)] 5888 To prevent repeated litigation between
the same parties in regard to the same
FAILURE TO STATE A CAUSE OF ACTION subject or controversy;
0 There is a failure to state a cause of action if 5889 To protect the defendant from
the pleading asserting the claim states no unnecessary vexation. Nemo debet vexare
cause of action. This is a ground for a motion pro una et eadem causa (No man shall be
to dismiss. [Rule 16, Sec.1(g)] twice vexed for one and the same cause);
1 It is submitted that the failure to state a cause 5890 To avoid the costs and expenses
of action does not mean that the plaintiff has incident to numerous suits.
no cause of action. It only means that the
plaintiffs allegations are insufficient for the A single act/omission can be violative of various rights
court to know that the rights of the plaintiff at the same time, as when the act constitutes
were violated by the defendant. [Riano] juridically a violation of several separate and distinct
2 There is a failure to state a cause of action if legal obligations. However, where there is only one
allegations in the complaint taken together, delict/wrong, there is but a single cause of action
do not completely spell out the elements of a regardless of the number of rights that may have
particular cause of action. [Riano] been violated belonging to one person. The
singleness of a cause of action lies in the singleness
3 A failure to state a cause of action is not the
of the delict/wrong violating the rights of a person. If
same as an absence or a lack of cause of
only 1 injury resulted from several wrongful acts, only
action. The former refers to an insufficiency in
1 cause of action arises. [Joseph v. Bautista (1989)]
the allegations of the complaint while the latter
refers to the failure to prove or to establish by
evidence ones stated cause of action. [Riano] For a single cause of action or violation of a right,
the plaintiff may be entitled to several reliefs. It is
TEST OF THE SUFFICIENCY OF A CAUSE OF the filing of separate complaints for these several
ACTION reliefs that constitutes splitting up of the cause of
Whether or not admitting the facts alleged, the court action which is proscribed by Rule 2, Sec. 3 and 4.
could render a valid verdict in accordance with the [City of Bacolod v. SM Brewery (1969)]
prayer of the complaint [Santos v. de Leo (2005)]
JOINDER AND MISJOINDER OF CAUSES OF
SPLITTING A SINGLE CAUSE OF ACTION ACTION
JOINDER OF CAUSE OF ACTION: It is the assertion of as
AND ITS EFFECTS
Definition: The act of instituting two or more suits on many causes of action as a party may have against
the basis of the same cause of action. [Rule 2, Sec.4] another in one pleading alone. It is also the process

PAGE 17
UP COLLEGE OF LAW
of uniting 2 or more demands or rights of action in
one action. [Riano citing Rule 2, Sec. 5 and CJS]
By a joinder of actions, or more properly, a joinder
of causes of action is meant the uniting of two or
more demands or rights of action in one action, the
statement of more than one cause of action in a
declaration [Ada v. Baylon (2012)]
PURPOSES: To avoid a multiplicity of suits and to
expedite disposition of litigation at minimum cost
[Ada v. Baylon (2012)]
The rule however is purely permissive as the
plaintiff can always file separate actions for each
cause of action. [Baldovi v. Sarte, (1917)]
Joinder shall not include special civil actions
governed by special rules. [Ada v. Baylon (2012)]
REQUISITES [Rule 2, Sec. 5]:
0 The party joining the causes of action must
comply with the rules on joinder of parties;
1 The joinder shall not include special civil
actions or actions governed by special rules;
2 Where causes of action are between the same
parties but pertain to different
venues/jurisdictions, the joinder may be
allowed in the RTC provided one of the
causes of action are within the RTCs
jurisdiction and the venue lies therein;
3 TOTALITY RULE - Where the claims in all
the causes of action are principally for
recovery of money, the aggregate amount
claimed shall be the test of jurisdiction.
MISJOINDER OF CAUSES OF ACTION [Rule 2, Sec. 6]
5888 Misjoinder of causes of action is not a
ground for dismissal of an action. A misjoined
cause of action may, on motion or motu propio, be
severed and proceeded with separately. However,
if there is no objection to the improper joinder or
the court did not motu proprio direct a severance,
then there exists no bar in the simultaneous
adjudication of all the erroneously joined causes of
action. However, this rule exists only when the
court trying the case has jurisdiction over all of the
causes of action therein notwithstanding the
misjoinder of the same. This is because if the
court has no jurisdiction to try the misjoined action,
then the same must be severed and if not so
severed, any adjudication rendered by the court
with respect to the same would be a nullity. [Ada v.
Baylon (2012)]
5889 There is no sanction against non-joinder of
separate causes of action since a plaintiff needs
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
only a single cause of action to maintain an
action (Regalado).
Parties to Civil Actions
REQUIREMENTS FOR A PERSON TO BE A
PARTY TO A CIVIL ACTION:
0 THE MUST BE EITHER [Rule 1, Sec.3]:
0 A natural person;
1 A juridical person;
0 The State and its political subdivisions;
1 Other corporations, institutions and
entities for public interest or purpose,
created by law; and
2 Corporations, partnerships and associations
for private interest or purpose to which the
law grants a juridical personality, separate
and distinct from that of each shareholder,
partner or member [Art. 44, CC]
2 An entity authorized by law.
0 The estate of a deceased person [Limjoco
v. Intestate Estate of Fragante (1948)];
1 A political party incorporated under Act
1459 [now BP 68 (Corporation Code)];
2 A corporation by estoppel is precluded from
denying its existence and the members
thereof can be sued and be held liable as
general partners. [Riano citing Sec. 21, BP68,
The Corporation Code of the Philippines]
3 A contract of partnership having a capital
of P3,000.00 or more but which fails to
comply with the registration requirements
is nevertheless liable as a partnership to
third persons. [Riano citing Art. 1772 in
rel. to Art. 1768, Civil Code]
4 A registered labor union [Sec. 243, PD 442
(Labor Code)], with respect to its property.
5 A legitimate labor organization may sue
and be sued in its registered name.
[Riano citing Art. 2429(e), Labor Code]
6 The Roman Catholic Church has legal
capacity to sue. As to its properties, the
archbishop or diocese to which they
belong may be a party. [Barlin v. Ramirez
(1906); Riano citing Barlin v. Ramirez
and Versoza v. Fernandez(1926)].
7 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. [Riano citing Sec.
122, Corporation Code]
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(B) HE MUST HAVE THE LEGAL CAPACITY TO SUE;

PARTIES TO A CIVIL ACTION
5888 HE MUST BE THE REAL PARTY IN 0 Plaintiff One having interest in the matter of
INTEREST. [Berman v. Cheng (2005)] the action or in obtaining the relief demanded;
5888 Only natural or juridical persons the claiming party or the original claiming party
or entities authorized by law may be and is the one who files the complaint [Riano];
parties in a civil case. does not exclusively apply to the original
5889 A sole proprietorship is not plaintiff [Riano]; may refer to the claiming party,
vested with juridical personality and the counter-claimant, the cross-claimant, or the
cannot sue or file or defend an action. third (fourth, etc.)-party plaintiff [Rule 3, Sec.1]
5890 There is no law authorizing sole 1 Defendant One claiming an interest in the
proprietorship to file a suit. controversy or the subject thereof adverse to the
5891 A sole proprietorship does not plaintiff. The term may also include [Rule 3, Sec 1):
possess a judicial personality separate 0 Unwilling Co-Plaintiff A party who should
and distinct from the personality of the be joined as plaintiff but whose consent
owner of the enterprise. [Rimbunan v. cannot be obtained. He may be made a
Oriental (2005)] defendant and the reason therefore shall be
5892 An unlicensed foreign corporation stated in the complaint. [Rule 3, Sec. 10]
is nonetheless permitted to bring suit in 1 The original plaintiff becoming a defendant
the Philippines if it is suing on an isolated to the original defendants counterclaim; also
transaction. refers to the cross-defendant, or the third
5893 Thus, the ascertainment of whether (fourth, etc.)-party defendant. [Rule 3, Sec 1]
a foreign corporation is merely suing on an
isolated transaction or is actually doing REAL PARTIES IN INTEREST; INDISPENSABLE
business in the Philippines requires the PARTIES; REPRESENTATIVES AS PARTIES;
elicitation of at least a preponderant set of NECESSARY PARTIES; INDIGENT PARTIES;
facts. ALTERNATIVE DEFENDANTS
Note: A foreign corporation may be party to an REAL PARTY IN INTEREST [Rule 3, Sec.2]
action in Philippine courts: 5888 The party who stands to be
0 If licensed to engage in business in the benefited/injured by the judgment in the suit;
Philippines, it may sue or be sued in our courts; 5889 The party entitled to the avails of the
1 If not licensed, it cannot sue, but it may be suit.
sued in our courts;
2 If not engaged in business in the Philippines, Rules:
it may sue in courts on a single isolated
0 Every action must be prosecuted or defended
transaction, but it cannot be sued in our
in the name of the real party in interest. [Rule
courts on such transaction.
3, Sec.2]
Note: Interest within the meaning of the Rules of
1 The partys interest must be direct, substantial
Court means material interest or an interest in issue and material [Sumalo v. Litton (2006)].
to be affected by the decree or judgment of the case, 2 Husband and wife shall sue and be sued jointly,
as distinguished from mere curiosity about the except as provided by law [Rule 3, Sec. 4]
question involved. [Ang v. Sps. Ang (2012)] 3 A minor or a person alleged to be incompetent
may sue or be sued, with the assistance of his
Lack of legal capacity to Lack of legal personality father, mother, guardian, or if he has none, a
sue to sue guardian ad litem. [Rule 3, Sec. 5]
The plaintiffs general The plaintiff is not the 4 Minors (represented by their parents) are real
disability to sue, such as real party in interest parties in interest under the principle of
on account of minority, intergenerational responsibility. [Oposa v.
insanity, incompetence, Factoran (1993)]
lack of juridical 5 If a party becomes incompetent/ incapacitated
personality or any other during the pendency of the action, the action
general disqualifications survives and may be continued by/against the
It can be a ground for a It can be used as ground incompetent/ incapacitated assisted by his legal
MTD [Rule 16 (1) (d)] for a MTD based on the guardian or guardian ad litem [Rule 3, Sec. 18]
failure of complaint to
state a cause of action.
[Rule 16 (1) (g)]

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INDISPENSABLE PARTIES Indispensable parties Necessary parties [Rule 3,

5888 An indispensable party is a real party-in- [Rule 3, Sec. 7] Sec. 8]
interest without whom no final determination such an interest in the presence is necessary to
can be had of an action. [Rule 3, Sec.7] controversy that a final adjudicate the whole
5889 A party who has such an interest in the decree would controversy but whose
controversy or subject matter that a final necessarily affect their interests are so far
adjudication cannot be made, in his absence, rights so that the court separable that a final
without injuring or affecting that interest. [Riano] cannot proceed without decree can be made in
5890 The joinder of a party becomes their presence. their absence without
compulsory when the one involved is an affecting them.
indispensable party. [Riano citing Rule 3,
Sec.7] 5888 Whenever in any pleading in which a
5891 A person is NOT an indispensable party if claim is asserted a necessary party is not
his interest in the controversy or subject matter joined, the pleader is under obligation to: (i)
is separable from the interest of the other set forth the name of the necessary party, if
parties, so that it will not necessarily be directly known, and (ii) state the reason why the
or injuriously affected by a decree which does necessary party is omitted. [Riano citing Rule
not complrete justice between them. [Riano] 3, Sec. 9 par 1]
5889 The non-inclusion of a necessary party
REPRESENTATIVE AS PARTIES [Rule 3, Sec. 3] does not prevent the court from proceeding in
0 Those acting in fiduciary capacity, such as a the action, and the judgment rendered
trustee/guardian/executor/administrator or a therein shall be without prejudice to the rights
party authorized by law or ROC. of such necessary party [Rule 3, Sec. 9 par
1 The beneficiary shall be included in the title 3]
of the case and shall be deemed to be the
real party in interest. INDIGENT PARTY [Rule 3, Sec. 21]
2 An agent acting in his own name and for the 0 indigent One who has no money or
benefit of an undisclosed principal may sue property sufficient and available for food,
or be sued without joining the principal. shelter and basic necessities.

Exception: If the contract involves things 1 While the authority to litigate as an indigent party
belonging to the principal. [Art. 1883, CC] may be granted upon an ex parte application and
hearing, it may be contested by the adverse party
NECESSARY PARTY [Rule 3, Sec. 8] at any time before judgment is rendered.
0 One who is not indispensable but ought to be
joined as a party if complete relief is to be If the court determines after hearing that the
accorded as to those already parties, or for a party declared indigent has sufficient income
complete determination or settlement of the or property, the proper docket and other
claim subject of the action lawful fees shall be assessed and collected
1 Indispensable parties v. Necessary parties by the clerk of court.
[taken from 2011 Reviewer and Riano]
2 The authority to litigate as an indigent shall
Indispensable parties Necessary parties [Rule 3, include an exemption from:
[Rule 3, Sec. 7] Sec. 8] o Payment of docket fees and other
Must be joined under Should be joined lawful fees;
any and all conditions,whenever possible; the o Payment of TSN.
his presence being a action can proceed even 3 The amount of docket and other lawful fees is a
sine qua non for the in their absence because lien on any judgment rendered in favor of
exercise of judicial
their interest is separable indigent party, unless court otherwise provides.
power from that of the
indispensable party ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13]
No valid judgment if The case may be Where the plaintiff is uncertain against whom of
indispensable party is determined in court but several persons he is entitled to relief, he may
not joined. the judgment therein will join any or all of them in the alternative, although
not resolve the entire a right to relief against one may be inconsistent
controversy if a necessary with a right to relief against the other.
party is not joined
They are those with They are those whose

PAGE 20
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[Rule

8 The rule on misjoinder or non-joinder of parties

does not comprehend whimsical and irrational
dropping or adding of parties in a complaint.

COMPULSORY AND PERMISSIVE JOINDER OF PARTIES

COMPULSORY JOINDER OF INDISPENSABLE PARTIES

3, Sec. 7]
Parties in interest without whom no final
determination can be had of an action shall be
joined either as plaintiffs or defendants

PERMISSIVE JOINDER [Rule 3, Sec. 6]

Parties can be joined, as plaintiffs or defendants,
in one single complaint or may themselves
maintain or be sued in separate suits.

Requisites [Regalado]:
Right to relief arises out of the same transaction
or series of transactions;

Note: SERIES OF TRANSACTIONS Transactions

connected with the same subject matter of the suit.

There is a question of law or fact common to all

the plaintiffs or defendants;

Such joinder is not otherwise proscribed by the

rules on jurisdiction and venue.

MISJOINDER AND NON-JOINDER OF PARTIES

0 A party is misjoined when he is made a party to
the action although he should not be impleaded. A
party is not joined when he is supposed to be
joined but is not impleaded in the action. (Riano)
1 Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action. [Rule 3, Sec. 11]
2 Parties may be dropped or added by order of
the court on motion of any party or on its own
initiative at any stage of the action and on
such terms as are just. [Rule 3, Sec.11]
3 Any claim against a misjoined party may be
severed and proceeded with separately.
[Rule 3, Sec. 11]
4 Non-joinder of an indispensable party is not a
ground for outright dismissal. Reasonable
opportunity must be given for his inclusion by
amendment of the complaint [Cortez v Avila
(1957)].
5 Objections to defects in parties should be
made at the earliest opportunity.
6 The moment such defect becomes apparent,
a motion to strike the names of the parties
must be made.
7 Objections to misjoinder cannot be raised for
the first time on appeal [Lapanday Agricultural
& Development Corporation v. Estita (2005)].

What it really contemplates is erroneous or
mistaken non-joinder and misjoinder or
parties. The rule presupposes that the
original inclusion had been made in the
honest conviction that it was proper and the
subsequent dropping is requested because it
has turned out that such inclusion was a
mistake. [Riano citing Lim Tan Hua v.
Ramolete(1975)]
CLASS SUIT
REQUISITES [Rule 3, Sec. 12]
5888 Subject matter of the controversy is
one of common/general interest to many
persons;
5889 The persons are so numerous that it is
impracticable to join them all as parties (i.e.
impracticable to bring them all before the
court);
5890 Parties bringing the class suit are
sufficiently numerous and representative of
the class and can fully protect the interests of
all concerned;
5891 The representative sues/defends for
the benefit of all.
Any party in interest shall have the right to
intervene to protect his individual interest. [Rule 3,
Sec. 12]
PAGE 21
If a class suit is improperly brought, the action is
subject to dismissal regardless of the cause of
action [Rule 16, Sec 1 (d)].
A taxpayer's suit or a stockholder's derivative suit is in
the nature of a class suit, although subject to the
other requisites of the corresponding governing law
especially on the issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover damages in
behalf of individual sugar planters for an allegedly
libelous article in an international magazine. There is
no common or general interest in reputation of a
specific individual. Each of the sugar planters has a
separate and distinct reputation in the community not
shared by the others. [Riano citing Newsweek, Inc. v.
Intermediate Appellate court (1986)]
A class suit does not require a commonality of
interest in the questions involved in the suit.
What is required by the Rules is a common or
general interest in the subject matter of the
litigation. [Riano citing Mathay v. Consolidated
Bank &Trust Company (1974)]
Class Suit Permissive Joinder of
Parties
There is a single cause of There are multiple
action pertaining to causes of action
numerous persons. separately belonging to
several persons.
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

CLASS SUIT AND DERIVATIVE SUIT, Counsels duty:

COMPARED (Asked in the 2005 Bar 5888 Inform court within 30 days after such
Examination) death of the fact thereof;
5889 Give the name and address of the legal
Class Suit Derivative Suit representatives.

Note: Failure to comply with this duty is a ground

When the subject matter An action brought by for disciplinary action.
of the controversy is one minority shareholders in
of common or general the name of the 0 The heirs may be substituted for the
interest to many persons, corporation to redress deceased without requiring the appointment
and the parties are so wrongs committed of an executor or administrator.
numerous that it is against it, for which the
impracticable to bring directors refuse to sue. 1 The court may appoint a guardian ad litem for
them all before the the minor heirs.
court, one or more may It is a remedy designed
sue or defend for the by equity and has been 2 The court shall order the legal
benefit of all. [Rule 3, the principal defense of representative(s) to appear and be
Sec. 12] the minority substituted within 30 days from notice.
shareholders against
abuses by the majority. 3 If no legal representative is named or if the
In a derivative action, the one so name shall fail to appear within the
specified period, the court may order the
real party in interest is opposing party to procure the appointment of
the corporation itself, not an executor or administrator for the estate.
the shareholders who
actually instituted it [Lim 4 The substitute defendant need not be
v. Lim Yu (2001)) summoned. The order of substitution shall be
served upon the parties substituted for the court
to acquire jurisdiction over the substitute party
SUITS AGAINST ENTITIES WITHOUT [Ferreria v Vda de Gonzales (1986)].
JURIDICAL PERSONALITY
REQUISITES [Rule 3, Sec.15] Death or separation of a party who is a
0 There are 2 or more persons not organized public officer [Rule 3, Sec. 17]
as a juridical entity;
1 They enter into a transaction; Requisites:
2 A wrong is committed against a 3rd person in 0 Public officer is a party to an action in his
the course of such transaction. official capacity;
1 During the pendency of the action, he either
Effect: Persons associated in an entity without
dies/resigns or otherwise ceases to hold office;
juridical personality may be sued under the name by 2 It is satisfactorily shown to the court by any party,
which they are generally/commonly known, but they within 30 days after the successor takes office,
cannot sue under such name. [Rule 3, Sec. 15] 0 that there is a substantial need to
continue/maintain the action and
The service of summons may be effected upon all the
1 The successor adopts/continues (or
defendants by serving upon any of them, or upon the
threatens to do so) his predecessors action
person in charge of the office or place of business
3 The party or officer affected was given
maintained under such name. [Rule 14, Sec. 8]
reasonable notice of the application therefore
and accorded an opportunity to be heard.
EFFECT OF DEATH OF PARTY LITIGANT
ACTION ON CONTRACTUAL MONEY CLAIMS [Rule 3,
SUBSTITUTION OF PARTIES
Sec. 20]
Death of a party, where the claim is not
extinguished by the death of the party (e.g.
Requisites:
cases involving property and property rights
5888 The action must primarily be for
[Bonilla v Barcena (1976)]); [Rule 3, Sec. 16]
recovery of money/debt or interest thereon;
(Asked in the 1998 and 1999 Bar Exams)
5889 The claim arose from express/implied
contract;

PAGE 22
UP COLLEGE OF LAW CIVIL PROCEDURE
0 Defendant dies before the entry of final judgment
in the court in which the action was pending.
0.0The defendants death will not result in the
dismissal of the action.
0.1 The deceased shall be substituted by his
legal representatives in the manner
provided for in Rule 3, Sec. 16, and the
action will continue until the entry of final
judgment (Asked in the 2000 Bar Exam)
0.2However, execution shall not issue in favor
of the winning plaintiff. It should be filed as
a claim against the decedents estate
without need of proving the claim.
TRANSFER OF INTEREST DURING THE PENDENCY OF THE
ACTION [Rule 3, Sec. 19]
General rule: The rule does not consider the
transferee an indispensable party. Hence, the action
may proceed without the need to implead him.
Exception: When the substitution by or joinder of
the transferee is ordered by court.
The case will be dismissed if the plaintiffs interest
is transferred to defendant unless there are several
plaintiffs, in which case the remaining plaintiffs can
proceed with their own cause of action.
Venue
Venue is the place, or the geographical area where
an action is to be filed and tried. In civil cases, it
relates only to the place of the suit and not to the
jurisdiction of the court. [Riano citing Manila
Railroad Company v. Attorney General (1911)]
Choosing the venue of an action is not left to a
plaintiffs caprice; the matter is regulated by the
Rules of Court. [Ang v. Sps. Ang (2012)]
VENUE VERSUS JURISDICTION [Riano]
DISTINCTIONS BETWEEN VENUE AND JURISDICTION
(Asked in the 2006 and 2008 Bar Exams)
Venue Jurisdiction
Place where the action is Power of the court to
instituted hear and decide a case
May be waived Jurisdiction over the
subject matter and over
the nature of the action
is conferred by law and
cannot-be waived
PAGE 23
BAR OPERATIONS COMMISSION
Venue Jurisdiction
Procedural Substantive
May be changed by the Is fixed by law and
written agreement of the cannot be the subject of
parties the agreement of the
parties
Establishes a relation Establishes a relation
between plaintiff and between the court and
defendant, or petitioner the subject matter
and respondent
Not a ground for a motu Lack of jurisdiction over
propio dismissal (except the subject matter is a
in cases of summary ground for a motu
procedure; Rule 4, Rule proprio dismissal.
on Summary Procedure)
VENUE OF REAL ACTIONS
5888 Shall be commenced and tried in the
proper court which has jurisdiction over the
area wherein the real property involved, or a
portion thereof is situated. [Rule 4, Sec. 1(1)]
5889 Forcible entry and detainer actions shall
be commenced and tried in the municipal
court of the municipality or city wherein the
real property involved, or a portion thereof, is
situated. [Rule 4, Sec. 1(2)]
5890 If the property is located at the
boundaries of 2 places, file the case in either
place (at the plaintiffs option).
5891 If the case involves 2 properties located
in 2 different places:
1024 If the properties are the object of
the same transaction, file it in any of the 2
places;
1025 If they are the objects of 2 distinct
transactions, separate actions should be
filed in each place unless properly joined.
VENUE OF PERSONAL ACTIONS
At the plaintiffs election: [Rule 4, Sec. 2]
0 Where the plaintiff or any of the principal
plaintiffs resides;
1 Where the defendant or any of the principal
defendants resides;
2 In case of a non-resident-defendant, where
he may be found.
Note: The plaintiff or the defendant must be
residents of the place where the action has been
instituted at the time the action is commenced.
[Ang v. Sps. Ang (2012)]
UP COLLEGE OF LAW
VENUE OF ACTIONS AGAINST NON-
RESIDENTS [Rule 5, Sec. 3]
Non-resident found in the Philippines
5888 For personal actions Where the plaintiff
resides;
5889 For real actions Where the property is
located.
Non-resident not found in the Philippines An
action may be filed only when the case involves:
0 Personal status of plaintiff - Where plaintiff
resides;
1 Any property of said defendant located in the
Phil. - Where the property (or any portion
thereof) is situated/found.
WHEN THE RULES ON VENUE DO NOT
APPLY [Rule 4, Sec. 4]
0 If a specific rule/law provides otherwise (e.g.
action for damages arising from libel);
1 Stipulations as to Venue is permitted if the
parties have validly agreed
0 in writing
1 before the filing of the action
2 on the exclusive venue
In the absence of qualifying restrictive words (e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the stipulated
venue is in addition to the venue provided for in the
rules. [Polytrade Corp. v. Blanco (1969)]
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties must
be able to show that such stipulation is exclusive.
In the absence of qualifying or restrictive words,
the stipulation should be deemed as merely an
agreement on an additional forum, not as limiting
venue to the specified place. [Riano citing Spouse
Lantin v. Lantion, (2006)]
EFFECTS OF STIPULATIONS ON VENUE
5888 To be binding, the parties must have
agreed on the exclusive nature of the venue
of any prospective action between them. The
agreement of parties must be restrictive and
not permissive. [Regalado]
5889 In the absence of qualifying restrictive words
(e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue
provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
5890 The court may declare agreements on
venue as contrary to public policy if such
stipulation unjustly denies a party a fair
opportunity to file suit in the place designated
by the Rules
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
[Regalado, citing Hoechst Philippines v
Torres (1978)].
OTHER RULES ON VENUE
0 Improper Venue: The Court may not motu
propio dismiss an action on the ground of
improper venue. [Dacoycoy v. IAC (1991)]
Exception: In summary procedures.
1 Change of Venue: The SC has the power to
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti]
2 Waiver Of Venue:
0 Until and unless the defendant objects to the
venue in a motion to dismiss prior to a
responsive pleading, the venue cannot truly
be said to have been improperly laid since
for all intents and purposes, the venue
though technically wrong may yet be
considered acceptable to the parties for
whose convenience the rules on venue had
been devised. Although venue is mandatory,
it is waivable. [Diaz v. Adiong (1993)]
1 Means of waiving venue:
1.0 Where parties validly agreed in writing
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4
(b)]; and
1.1 Failure to raise improper venue as
affirmative defense or in motion to dismiss
Pleadings
DEFINITION
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate judgment
[Rule 6, Sec. 1]
Pleading Motion
Purpose: To submit a Purpose: To apply for an
claim/defense for order not included in the
appropriate judgment judgment
May be initiatory Cannot be initiatory as
they are always made in
a case already filed in
court.
Always filed before May be filed even after
judgment judgment
PAGE 24
UP COLLEGE OF LAW
KINDS OF PLEADINGS
PLEADINGS ALLOWED [Rule 6, Sec. 2]
5888 Complaint;
5889 Answer;
5890 Counterclaim;
5891 Cross-claim;
5892 3rd-party Complaint,
5893 Complaint-in-intervention;
5894 Reply;
COMPLAINT [Rule 6, Sec. 3]
Definition
The pleading alleging the plaintiffs cause/s of
action. It should contain a concise statement of the
ultimate facts constituting the plaintiffs cause/s of
action, not evidentiary facts or legal conclusions.
It shall contain:
0 in a methodical and logical form
1 a plain, concise and direct statement of ultimate
facts on which the plaintiff relies for his claim,
2 omitting statement of mere evidentiary facts.
[Rule 8, Sec. 1]
Its function is to inform the defendant clearly and
definitely of claims made against him so that he
may be prepared to meet the issues at trial.
It should inform the defendant of all material facts
on which the plaintiff relies to support his demand.
It should state the theory of a cause of action
which forms the bases of plaintiffs claim of
liability. [Tantuico v. Republic (1991)]
Ultimate Facts Essential facts constituting the
plaintiffs cause of action. A fact is essential if it
cannot be stricken out without leaving the
statement of the cause of action insufficient.
[Remitere v. Montinola (1966)]
Not ultimate facts:
5888 Evidentiary or immaterial facts;
5889 Legal conclusions, conclusions or
inferences of facts from facts not stated, or
incorrect inferences or conclusions from facts
stated;
5890 Conclusions of law alleged in the
complaint are not binding on the court.
5891 The details of probative matter or
particulars of evidence, statements of law,
inferences and arguments.
Test of sufficiency of the facts alleged in the
complaint: WON upon the averment of facts, a
valid judgment may be properly rendered
[Pamintan v. Costales (1914)].
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ANSWER [Rule 6, Sec. 4]
Definition
The pleading where the defendant sets forth his
affirmative/negative defenses. It may also be the
response to a counterclaim or a cross-claim.
Two kinds of defenses that may be set forth
in the answer [Rule 6, Sec. 5]
0 Negative Defenses Specific denials of the
material facts alleged in the pleading of the
claimant essential to his cause of action.
Negative Pregnant - Denial pregnant with an
admission. It is a denial pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied. It is
in effect an admission of the averment it is
directed to. [Philamgen v. Sweet Lines (1993)]
1 Affirmative Defenses Allegations of new
matters which, while hypothetically admitting
the material allegations in the claimants
pleading, would nevertheless prevent/bar
recovery by him. It includes fraud,
prescription, release, payment and any other
matter by way of confession and avoidance.
COUNTERCLAIMS [Rule 6, Sec. 6]
Definition
Any claim which a defending party may have
against an opposing party.
0 A counterclaim is in the nature of a cross-
complaint. Although it may be alleged in the
answer, it is not part of the answer.
1 Upon its filing, the same proceedings are had
as in the original complaint.
2 For this reason, it must be answered 10 days
from service [Rule 11, Sec 4] (Asked in the
2002 and 2008 Bar Exams).
How to raise counterclaims
Included in the answer:
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer
shall be contained therein. [Rule 11, Sec. 8]
Exception: Pleadings may be amended under Rule 11,
Sec. 10:
0 By leave of court;
1 Before judgment;
2 On the grounds of:
0 Oversight;
1 Inadvertence;
2 Excusable neglect;
3 When justice requires.
PAGE 25
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After the answer [Rule 11, Sec. 9] 0 It must arise out of, or be necessarily connected
0 Counterclaims/cross-claims arising after the with, the transaction/occurrence that is the
answer, subject matter of the opposing party's claim;
1 with the courts permission, 1 It does not require for its adjudication the
2 may be presented as a counterclaim/cross-claim presence of 3rd parties of whom the court
by supplemental pleading before judgment. cannot acquire jurisdiction;
2 It must be within the courts jurisdiction both
Rules on counterclaims as to the amount and the nature. [Regalado,
0 In an original action before the RTC, the citing Quintanilla v CA (1997)]
counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7] General rule: A compulsory counterclaim not set
1 In the case of Agustin v. Bacalan (1985), if a up in the answer is deemed barred.
counterclaim is filed in the MTC in excess of
its jurisdictional amount, the excess is Exception: If it is a counterclaim which either
considered waived. matured or was acquired by a party after serving
2 But in Calo v. Ajax (1968), the remedy where his answer. In this case, it may be pleaded by
a counterclaim is beyond the jurisdiction of filing a supplemental answer or pleading before
the MTC is to set off the claims and file a judgment. [Rule 11, Sec. 9]
separate action to collect the balance.
Note:
Kinds of counterclaims 0 The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible
Compulsory counterclaim Permissive counterclaim remedies.
1 In the event that a defending party has a ground
for dismissal and a compulsory counterclaim at
One which arises out of It does not arise out of
the same time, he must choose only one remedy.
or is necessarily nor is it necessarily
2 If he decides to file a MTD, he will lose his
connected with the connected with the
counterclaim. But if he opts to set up his
transaction or subject matter of the
counterclaim, he may still plead his ground for
occurrence -that is the opposing party's claim.
dismissal as an affirmative defense in his answer.
subject matter of the
opposing party's claim. 3 If any of the grounds to dismiss under Rule
17, Sec. 3 arise, the proper recourse for a
Does not require for its May require for its
defendant who desires to pursue his
adjudication the adjudication the
compulsory counterclaim in the same
presence of third parties presence of third parties
proceeding is not a MTD.
of whom the court over whom the court
cannot acquire cannot acquire 4 Instead, he should only move to have the
jurisdiction. jurisdiction. plaintiff declared non-suited on the complaint so
that the latter can no longer present his
Barred if not set up in Not barred even if not
evidence thereon, and simultaneously move
the action. set up in the action.
that he be declared as in default on the
Need not be answered; Must be answered,
compulsory counterclaim, and reserve the right
no default. otherwise, the defendant
to present evidence ex parte on his compulsory
can be declared in
counterclaim. [BA Finance v. Co (1993)]
default.
0 A permissive counterclaim requires the payment of Permissive counterclaim
docket fees. [Sun Insurance v. Asuncion (1989)] [NOTE: Please also refer to table comparing
1 A plaintiff who fails or chooses not to answer compulsory and permissive counterclaims]
a compulsory counterclaim may not be
declared in default, principally because the Test to determine whether a counterclaim is
issues raised in the counterclaim are deemed compulsory or permissive
automatically joined by the allegations in the Logical Relationship Test: Where conducting
complaint. [Gojo v. Goyala (1970)] separate trials of the respective claims would
entail substantial duplication of effort and time
Compulsory counterclaim and involves many of the same factual and legal
Requisites of a compulsory counterclaim [Rule issues. [Meliton v. CA (1992)]
6, Sec 7] (Asked in the 1998 bar exam)

PAGE 26
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Effect on the Counterclaim when the

complaint is dismissed
Under Section 3, Rule 17, dismissal of action
due to plaintiffs fault shall be without prejudice
to the defendants right to prosecute his
counterclaim in the same/separate action.
CROSS-CLAIMS [Rule 6, Sec. 8]
Requisites for cross-claim
0 A claim by one party against a co-party;
1 It must arise out of the subject matter of the
complaint or of the counterclaim;
2 The cross-claimant is prejudiced by the claim
against him by the opposing party.
0 Counter-Cross-claim - A
claim filed against an original cross-claimant.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS [Rule 6,
Sec. 11]
[NOTE: See also table in immediately preceding
subsection]
Definition: It is a claim that a defending party may,
with leave of court, file against a person not a party to
the action for contribution, indemnity, subrogation or
any other relief, in respect of his opponent's claim.

General rule: A cross-claim is always There could also be a 4th/etc.-party complaint

compulsory. A cross-claim not set up shall be with the same purpose and function.
barred. [Rule 9, Sec. 2]
3rd-party complaint Complaint in intervention
Exceptions:
0 When it is outside the courts jurisdiction;
1 If the court cannot acquire jurisdiction over 3rd Brings into the action a Same
parties whose presence is necessary for the 3rd person who was not
adjudication of said cross-claim. In this case, originally a party
the cross-claim is considered permissive. Initiative is with the Initiative is with a non-
person already a party to party who seeks to join
The dismissal of the complaint carries with it the action the action
the dismissal of a cross-claim which is purely
defensive, but not a cross-claim seeking an
affirmative relief. [Torres v. CA (1973)] 3rd-party complaint Counterclaim

Cross Claim, Counterclaim and Third Party

Complaint (Asked in the 1997 and 1999 Bar Exams) Need not be within the Must be within the
Cross-claim Counterclaim 3rd Party jurisdiction of the court jurisdiction of the court
complai trying the main case trying the main case
nt Diminishes/defeats the Need not
Against a co- Against an Against a recovery sought by the diminish/defeat the
party opposing party person not a opposing party recovery sought by the
party to the opposing party
action Cannot exceed the May exceed in amount
Must arise May arise out of or Must be in amount stated in the or be different in kind
out of the be necessarily respect of the original complaint from that sought in the
transaction connected with opponents original complaint
that is the the transaction or (plaintiffs)
Tests to determine whether the 3rd-party complaint is in
subject the subject matter claim
respect of plaintiff's claim [Capayas v. CFI (1946)]
matter of the of the opposing
original partys claim 0 WON it arises out of the same transaction on
action or of a (compulsory which the plaintiff's claim is based, or although
counterclaim counterclaim), or it arising out of another/different transaction, is
therein may not connected with the plaintiffs claim;
(permissive 1 WON the 3rd-party defendant would be liable to
counterclaim) the plaintiff or to the defendant for all/part of the
plaintiffs claim against the original defendant;
Counter-counterclaims and counter-cross- 2 WON the 3rd-party defendant may assert any
claims [Rule 6, Sec. 9] defenses which the 3rd-party plaintiff has or
0 Counter-Counterclaim - A claim asserted may have to the plaintiffs claim.
against an original counter-claimant.

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UP COLLEGE OF LAW
Note:
23 Leave of court to file a 3rd-party complaint
may be obtained by motion under Rule 15.
24 Summons on 3rd (4th/etc.) party defendant must
be served for the court to obtain jurisdiction over
his person, since he is not an original party.
25 Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the
3rd-party complaint, regardless of the amount
involved as a 3rd-party complaint is merely
auxiliary to and is a continuation of the main
action. [Republic v. Central Surety (1968)]
26 A 3rd-party complaint is not proper in an
action for declaratory relief.
COMPLAINT-IN-INTERVENTION
Pleadings in intervention [Rule 19, Sec. 3]
0 Complaint-in-intervention If intervenor asserts a
claim against either or all of the original parties.
1 Answer-in-intervention If intervenor unites
with the defending party in resisting a claim
against the latter.
Definition
INTERVENTION is a remedy by which a third
party, not originally impleaded in a proceeding,
becomes a litigant therein to enable him to
protect or preserve a right or interest which may
be affected by such proceeding.
Its purpose is "to settle in one action and by a
single judgment the whole controversy (among)
the persons involved." [First Philippine Holdings
v. Sandiganbayan (1996); Rule 19]
When allowed
Intervention shall be allowed when a person has:
0 a legal interest in the matter in litigation;
1 or in the success of any of the parties;
2 or an interest against the parties; and
3 when he is so situated as to be adversely affected
by a distribution or disposition of property in the
custody of the court or of an officer thereof. [First
Philippine Holdings v. Sandiganbayan (1996)]
Not an independent action
Intervention is not an independent action, but
is ancillary and supplemental to an existing
litigation. [First Philippine Holdings v.
Sandiganbayan (1996)]
23 It is neither compulsory nor mandatory but only
optional and permissive. [Mabayo v. CA (2002)]
24 The Court has full discretion in permitting or
disallowing intervention, which must be
exercised judiciously and only after
consideration of all the circumstances
obtaining in the case. [Mago v. CA (1999)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
0 It is not an absolute right as it can be secured
only in accordance with the terms of
applicable statute or rule. [Office of
Ombudsman v. Samaniego (2010)]
Requisites for valid intervention
0 There must be a motion for intervention filed
before rendition of judgment by the trial court.
1 Movant must show in his motion that he has a:
0 legal interest in (1) the matter of litigation,
(2) the success of either of the parties in
the action or (3) against both parties.
1 that the movant is so situated as to be
adversely affected by a distribution or
other disposition of property in the custody
of the court or an officer thereof
2 that the intervention must not unduly delay
or prejudice the adjudication of the rights
of the original parties and that the
intervenors rights may not be fully
protected in a separate proceeding.
Meaning of legal interest
Interest must be of a direct and immediate
character so that the intervenor will either gain
or lose by the direct legal operation of the
judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
must not be indirect and contingent, indirect and
remote, conjectural, consequential or collateral.
[Virra Mall Tenants v. Virra Mall (2011)]
Remedy for denial of motion for intervention
The movant may file a motion for
reconsideration since the denial of a motion
for intervention is an interlocutory order.
Alleging grave abuse of discretion, movant can
also file a certiorari case.
REPLY [Rule 6, Sec. 10]
Definition: The plaintiffs response to the
defendant's answer,
the function of which is to deny or allege facts in
denial or in avoidance of new matters alleged
by way of defense in the answer and
thereby join or make issue as to such new
matters.
Effect of failure to reply (Asked in the 2000 bar
exam)
General rule: Filing a reply is merely optional. New
facts that were alleged in the answer are deemed
controverted should a party fail to reply thereto.
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UP COLLEGE OF LAW
Exception: Reply is required:
Where the answer is based on an actionable
document. [Rule 8, Sec. 8]
Where the answer alleges the defense of usury.
[Rule 8, Sec. 11]
PLEADINGS ALLOWED IN SMALL CLAIM
CASES AND CASES COVERED BY THE
RULES ON SUMMARY PROCEDURE
Under the Revised Rules on Summary Procedure
the only pleadings allowed to be filed are [Sec. 3]:
complaints;
compulsory counterclaims and cross-claims
pleaded in the answer; and
the answers thereto.
PROHIBITED PLEADINGS, MOTIONS OR PETITIONS
[Sec.
19]:
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 comply with required
barangay conciliation proceedings;
Motion for a bill of particulars;
Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
Petition for relief from judgment;
Motion for extension of time to file pleadings,
affidavits or any other paper;
Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
Motion to declare the defendant in default;
Dilatory motions for postponement;
Reply;
Third party complaints; and
Interventions.
FORMS USED UNDER THE RULE OF PROCEDURE
UNDER SMALL CLAIMS CASES:
Instead of filing complaint, a Statement of Claim
using Form 1-SCC shall be filed [Sec. 5]
Answer shall be filed by way of a Response
using Form 3-SCC [Sec. 10]
Defendant may file counterclaim if he possesses
a claim against the plaintiff that
is within the coverage of this Rule, exclusive
of interest and costs;
arises out of the same transaction or event
that is the subject matter of the plaintiffs
claim;
does not require for its adjudication the
joinder of third parties; and
is not the subject of another pending action, the
claim shall be filed as a counterclaim in the
Response; otherwise, the defendant shall be
barred from suit on the counterclaim.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
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.
Note: Courts decision shall be contained in Form
13-SCC
PROHIBITED PLEADINGS AND MOTIONS:
Motion to dismiss the complaint except on the
ground of lack of jurisdiction;
Motion for a bill of particulars;
Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
Petition for relief from judgment;
Motion for extension of time to file pleadings,
affidavits, or any other paper;
Memoranda;
Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
Motion to declare the defendant in default;
Dilatory motions for postponement;
Reply;
Third-party complaints; and
Interventions.
PARTS OF A PLEADING [Rule 7, Secs. 1 to 3]
CAPTION
Caption - Courts name, actions title (i.e.
parties names) and docket number.
Body - Pleadings designation, allegations of
party's claims/defenses, relief prayed for and
pleadings date.
Paragraphs must be numbered, and each
paragraph number must contain a single set
of circumstances
Headings: if more than one cause of action, use
"1st cause of action," 2nd cause of action," etc.
Specify relief sought, but it may add a general
prayer for such further/other relief as may be
deemed just/equitable.
Every pleading shall be dated.
SIGNATURE AND ADDRESS
Pleading must be signed by the party/counsel.
State address (not PO box) in either case.
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING [Rule 7, Sec. 4]
Verification
Pleadings need not be verified, unless otherwise
provided by the law/rules.
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UP COLLEGE OF LAW
How a Pleading is Verified [Rule 7, Sec 4]
By an affidavit:
That the affiant read the pleading;
That the allegations therein are true and correct
of his personal knowledge or based on
authentic documents.
Certification of Non-Forum Shopping (CNFS)
[Rule 7, Sec. 5]
Definition: The filing of multiple suits in different
courts, simultaneously or successively, involving
the same parties, to ask the courts to rule on the
same/related causes and/or to grant the same or
substantially the same relief. [T'Boli Agro-
Industrial Development, Inc. (TADI) v. Solidapsi
(2002)] (Asked in the 2006 Bar Exam)
Test to Determine WON there is Forum Shopping
(ASKED IN THE 2002 BAR EXAM) - WON in the 2 or
more cases pending, there is identity of:
Parties;
Rights or causes of action;
Relief sought.
The CNFS is to be executed by the petitioner,
not by the counsel.
CNFS is required only for complaints or initiatory
pleadings (e.g. permissive counterclaim, cross-
claim etc.).
CNFS is not required in a compulsory
counterclaim. A counterclaim is not an initiatory
pleading. [UST Hospital v. Surla (1998)]
The lack of certification against forum shopping is
not curable by mere amendment of a complaint,
but shall be a cause for the dismissal of the case
without prejudice. The general rule is that
subsequent compliance with the requirements will
not excuse a party's failure to comply in the first
instance. [Ramirez v. Mar Fishing (2012)]
Effect of Submission of False CNFS or Non-
Submission of CNFS
Indirect contempt;
Administrative and criminal actions.
Effect of Willful and Deliberate Forum Shopping
(Asked in the 2006 and 2007 Bar Exams)
Ground for summary dismissal of the case with
prejudice;
Direct contempt and administrative sanctions.
Pleadings as well as remedial laws should be
liberally construed
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
in order that the litigant may have ample
opportunity to prove their respective
claims, and possible denial of substantial
justice, due to technicalities, may be
avoided. [Gerales v. CA (1993)]
Requirements of a corporationexecuting the
verification/certification of non-forum shopping
Only individuals vested with authority by a valid board
resolution may sign the certificate of non-forum
shopping in behalf of a corporation. In addition, the
Court has required that proof of said authority must
be attached. Failure to provide a certificate of non-
forum shopping is sufficient ground to dismiss the
petition. Likewise, the petition is subject to dismissal
if a certification was submitted unaccompanied by
proof of the signatorys authority. [PAL v. FASAP
(2006)]
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING
Counsels signature is a certification that:
He has read the pleading;
To the best of his knowledge, information and
belief there is good ground to support it;
It is not interposed for delay.
An unsigned pleading produces no legal effect.
However, the court may allow such deficiency to be
remedied if it shall appear that the same was due
to inadvertence and not intended for delay.
ALLEGATIONS IN A PLEADING
MANNER OF MAKING ALLEGATIONS
In general [Rule 8, Sec. 1]
In a methodical and logical form.
Plain, concise and direct statement of the
ultimate facts on which the party pleading
relies for his claim/defense.
Omit evidentiary facts.
If defense relied on is based on law, cite the
provisions and their applicability.
Condition precedent - a general averment of
the performance or occurrence of all conditions
precedent shall be sufficient [Rule 8, Sec. 3]
Fraud, mistake, malice, intent, knowledge and other
condition of the mind, judgments, official documents
or acts - Circumstances constituting fraud or mistake
must be stated with particularity while malice, intent,
knowledge or other condition of the mind of a person
may be averred generally [Rule 8, Sec. 5]
Facts that may be Averred Generally
Conditions precedent; but there must still be an
allegation that the specific condition precedent has
been complied with, otherwise it will be
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UP COLLEGE OF LAW CIVIL PROCEDURE
dismissed for lack of cause of action; [Rule 8,
Sec. 3]
Capacity to sue or be sued;
Capacity to sue or be sued in a representative
capacity; [Rule 8, Sec. 4]
Legal existence of an organization;
A party desiring to raise an issue as to the
legal existence or capacity of any party to
sue or be sued in a representative capacity
shall do so by specific denial which shall
include supporting particulars within the
pleader's knowledge. [Rule 8, Sec 4]
Malice/intent/knowledge or other condition of
the mind; [Rule 8, Sec. 5]
Judgments of domestic/foreign courts,
tribunals, boards or officers (without need to
show jurisdiction); [Rule 8, Sec. 6]
Official documents/acts. [Rule 8, Sec. 9]
Facts that must be Averred Particularly
Circumstances showing fraud/mistake in all
averments of fraud/mistake [Rule 8, Sec. 5]
PLEADING AN ACTIONABLE DOCUMENT
Actionable document
A document which is really the basis of the
cause of action (or defense), and not merely
evidentiary thereof. [Rule 8, Sec. 7]
Genuineness and due execution of an
actionable instrument shall be deemed admitted
unless the adverse party, under oath, specifically
denies them, and sets forth what he claims to be
the facts. [Rule 8, Sec. 8]
Exception to the requirement of an oath:
when the adverse party does not appear to be a
party to the instrument. [Donato v. CA (1993)]
How an action or defense may be based on a
document:
By copying a substantial portion of the document
into the pleading;
By annexing /incorporating the document into
the pleading;
By both copying and annexing document into
the pleading.
SPECIFIC DENIALS
Three Ways of Making a Specific Denial
Specific absolute denial by specifically denying
the averment and, whenever practicable,
setting forth the substance of the matters
relied upon for such denial.
Partial specific denial part admission and part
denial;
PAGE 31
BAR OPERATIONS COMMISSION
Disavowal of knowledge by an allegation of
lack of knowledge or information sufficient to
form a belief as to the truth of the averment in
the opposing party's pleading. This does not
apply where the fact as to which want of
knowledge is asserted is, to the knowledge of
the court, so plain and necessarily within the
defendant's knowledge that his averment of
ignorance must be palpably untrue.
Note:
General rule: Allegations not specifically denied
are deemed admitted [Rule 8, Sec. 11]
Exceptions:
Allegations as to the amount of unliquidated
damages;
Allegations immaterial to the cause of action;
Allegations of merely evidentiary or immaterial facts
may be expunged from the pleading or may be
stricken out on motion. [Rule 8, Sec. 12]
Conclusion of law.
Kinds of denial (Asked in the 2004 Bar Exam)
Specific denial Specifies each material
allegation of fact the truth of which he does
not admit, and sets forth the substance of the
matters upon which he relies to support his
denial. [Rule 8, Sec. 10]
Denial with qualification - Specifies so much of it as is
true and material, and deny the remainder.
Specific denial for lack of knowledge/information
sufficient to form as belief as to the truth of a
material averment made in the complaint.
Specific denial under oath - Contests the
authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]
Disciplinary Action on Counsel Regarding
Pleadings [Rule 7, Sec. 3]
Deliberately filing an unsigned pleading;
Deliberately signing a pleading in violation of the
Rules;
Alleging scandalous/Indecent matter in the
pleading;
Failing to promptly report a change of his
address.
Effect of failure to make specific denials
General rule: Defenses and objections not
pleaded either in a MTD or in the answer, are
deemed waived. [Rule 9, Sec. 1]
Exceptions:
Lack of jurisdiction over the subject matter;
Litis pendentia;
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

(Asked in the 1999

Issued by the court on Rendered by the court

plaintiffs motion, for following a default order
failure of the defendant or after it received ex
to file his responsive parte plaintiffs evidence
Res judicata; pleading seasonably
Prescription Interlocutory -Not Final Appealable
appealable
When a specific denial requires an oath -
Contests the authenticity or due execution of an
actionable document. [Rule 8, Sec. 8]

EFFECT OF FAILURE TO PLEAD

FAILURE TO PLEAD DEFENSES AND OBJECTIONS

General rule: Defenses and objections not

pleaded in answer or motion to dismiss are
deemed waived. (Omnibus Motion Rule) [Rule 9]

Exceptions:
Lack of jurisdiction over the subject matter;
Litis pendentia between same parties for the
same cause
Res judicata
Action barred by statute of limitations.

FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM

AND CROSS-CLAIM

Compulsory counterclaim
General Rule: A compulsory counterclaim not
set up is considered barred. [Rule 9, Sec. 2]

Exception: If due to oversight, inadvertence,

excusable neglect, etc. the compulsory
counterclaim, with leave of court, may be set up by
amendment before judgment. [Rule 11, Sec. 10]

Cross-claim
A cross-claim is always compulsory. A cross-
claim not set up shall be barred. [Rule 9, Sec. 2]

DEFAULT [Rule 9, Sec. 3]

Definition: Failure of the defendant to answer
within the proper period. It is not his failure to
appear nor his failure to present evidence
(Asked in the 2000 and 2001 Bar Exams)

Order of default Judgment by default


WHEN A DECLARATION OF DEFAULT IS PROPER
Court validly acquired jurisdiction over the
defendants person, either by service of
summons or voluntary appearance;
Defendant fails to answer within the time allowed
therefor;
Motion to declare the defendant in default;
Notice to the defendant by serving upon him a
copy of such motion;
Proof of such failure to answer.
EFFECT OF AN ORDER OF DEFAULT Bar
Exam) [Rule 9, Sec 3(a)]
A defendant who fails to file an answer may, upon
motion, be declared by the court in default. Loss of
standing in court, the forfeiture of ones right as a
party litigant, contestant or legal adversary, is the
consequence of an order of default. A party in default
loses his right to present his defense, control the
proceedings, and examine or cross-examine
witnesses. He has no right to expect that his
pleadings would be acted upon by the court nor may
be object to or refute evidence or motions filed
against him. [Ortero v. Tan (2012)]
PAGE 32
The court shall proceed to render judgment
granting the claimant relief as his pleading may
warrant, unless the court in its discretion requires
the claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.
The party in default shall be entitled to notice of
subsequent proceedings but not to take part in
the trial.
A defendant declared in default cannot take part in the
trial, but he cannot be disqualified from testifying
as a witness in favor of non-defaulting defendants.
[Cavili v. Florendo (1987)]
A party in default is entitled to notice of:
Motion to declare him in default;
Order declaring him in default;
Subsequent proceedings;
Service of final orders and judgments.
Note: A defending party declared in default retains
the right to appeal from the judgment by default.
However, the grounds that may be raised in such
an appeal are restricted to any of the following:
the failure of the plaintiff to prove the material
allegations of the complaint;
the decision is contrary to law; and
the amount of judgment is excessive or different in
kind from that prayed for. [Ortero v. Tan (2012)]
UP COLLEGE OF LAW CIVIL PROCEDURE
RELIEF FROM AN ORDER OF DEFAULT [Rule 9, Sec 3(b)]
Before judgment, a party declared in default may
file a motion under oath to set aside the order
of default upon proper showing that:
His failure to answer was due to fraud,
accident, mistake or excusable
negligence; and that
He has a meritorious defense.
In such case, the order of default may be set aside on
terms and conditions as justice requires.
Remedies of a party declared in default
Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
have ample opportunity to prove their
respective claims, and possible denial of
substantial justice. [Gerales v. CA (1993)]
Dulos v. CA (1990)
At any time after the discovery
of default and before judgment,
defendant may file a motion
Motion to Set under oath to set aside order of
Aside Order of default on the ground that his
Default [Rule 9, failure to file an answer or
Sec. 3(B)] appear on the date set for the
pre-trial was due to fraud,
accident mistake of law, and
excusable negligence and that
he has a meritorious defense
(a) If the judgment has already
been rendered when the
defendant discovered the
default, but before the same
became final and executory.
(b) It should be filed within the
Motion for New period for perfecting an
Trial [Rule 37, Sec. appeal. Timely filing thereof
1(A)] interrupts the 15-day
reglementary period for an
appeal.
It is required that defendant file
first a motion to lift order of
default to regain his
standing. [Tan v. CA (1997)]
Petition for Relief If the defendant discovered the
from Order, default after the judgment has
Judgment or Other become final and executory
Proceedings [Rule
38, Sec. 1 And 2]
The defendant may also appeal
from the judgment rendered
Appeal from the against him as contrary to the
RTC [Rule 41, Sec. evidence or the law, even if he
1] did not present a petition to set
aside the order of default
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BAR OPERATIONS COMMISSION
An order of default is an interlocutory order which is not
appealable. A judgment by default is a final
disposition of the case and is appealable.
[MERALCO v. La Campana Food Products (1995)]
A petition for certiorari under Rule 65, although
not a substitute for an available or lost
appeal, may be invoked while the orders of
the lower court are issued without or in
excess of jurisdiction.
Judgment by default being appealable, appeal
should be perfected within 15 days from receipt
of copy of order denying MFR of default
judgment. [Oriental Media v. CA (1995)]
A satisfactory showing by the movant of the
existence of fraud, accident, mistake or
excusable neglect is an indispensable
requirement for the setting aside of a
judgment of default or an order of default.
A meritorious defense is only one of the two
conditions. The meritorious defense must concur
with the satisfactory reason for the non-
appearance of the defaulted party. If there is no
such reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2. [Ramnani
CA (1993)]
The jurisdiction was properly acquired by the TC
over the defendants person; he was
therefore properly declared in default for not
having filed any answer.
Despite his failure to file a motion to set aside
the declaration of default, he has the right to
appeal the default judgment.
But in the appeal, only the evidence of the petitioner
may be considered, respondent not having
adduced any defense evidence. [Boticano
Chu (1987)]
EFFECT OF A PARTIAL DEFAULT [Rule 9, Sec 3(c)]
If the pleading asserting a claim states a common
cause of action against several defending parties,
and some of the defending parties answer while
the others fail, the court shall try the case against
all defendants upon the answers filed and render
judgment upon the evidence presented.
Exception: If the defense is personal to the one
who answered; in which case, it will not benefit
those who did not answer.
EXTENT OF RELIEF
Extent of relief to be awarded
The award shall not exceed the amount or be
different in kind from that prayed for; nor award
unliquidated damages.
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Rationale: It is presumed that where the relief

demanded is greater or different in kind,
defendant would not have allowed himself to be
declared in default.
Datu Samad Mangelen v. CA (1992): In a
judgment based on evidence presented ex
parte, judgment should not exceed the amount
or be different in kind from that prayed for.
On the other hand, in a judgment where an
answer was filed but defendant did not appear at
the hearing, the award may exceed the amount
or be different in kind from that prayed for.
ACTIONS WHERE DEFAULT ARE NOT ALLOWED
Cases where no defaults are allowed [Rule 9, Sec 3(e)]
Annulment of marriage; Declaration of nullity of
marriage; Legal Separation;
Lesaca v. CA (1992): A defendant who already filed
an answer cannot be declared in default. Only when
the defendant fails to file an answer to the complaint
may the court proceed to render judgment.
Bayog v. Natino (1996): The Revised Rules on
Summary Procedure does not provide that an
answer filed after the reglementary period
should be expunged from the records.
As a matter of fact, there is no provision for an entry
of default if a defendant fails to file his answer.
The defense of LOJ may have even been raised
by the defendant in a MTD as an exception to
the rule on prohibited pleadings in the Revised
Rule on Summary Procedure. Such a motion is
allowed under Sec. 19(a) thereof.

Here, the court shall order the prosecuting
attorney to investigate WON parties are colluding
and, if there is no collusion, to intervene from the
State to ensure that evidence is not fabricated.
Special civil actions of certiorari, prohibition and
mandamus, where comment (instead of an
answer) is required to be filed.
Failure to appear at pre-trial
Who fails to Effect appear
Malanyaon v. Sunga (1992): Where the failure
to appear at the pre-trial hearing was
uncontrovertedly due to illness, the default order
may be set aside on the ground of accident over
which petitioner had no control.
Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order.
Acquisition of jurisdiction

Plaintiff Cause for dismissal of the FILING AND SERVICE OF PLEADINGS

action which will be with
prejudice, unless otherwise
ordered by the court
Defendant Cause to allow plaintiff to
present evidence ex parte,
and court to render judgment
on the basis thereof
DEFINITION
Filing The act of presenting the pleading or other
paper to the clerk of court. [Rule 13, Sec. 2]
Service The act of providing a party or his
counsel with a copy of the pleading or paper
concerned. [Rule 13, Sec. 2]

Default by defendant As in default PAPERS REQUIRED TO BE FILED AND SERVED [Rule

(Rule 9, Sec. 3) (failure to appear by 13, Sec. 4]
plaintiff) (Rule 18, Sec. 5) Pleading subsequent to the complaint;
Upon motion and notice Not required Appearance;
to defendant. Written Motion;
Requires proof of failure Not required Notice;
to answer Order;
Court to render Court to allow plaintiff Judgment;
judgment, unless it to present evidence ex Demand;
requires submission of parte, then the court Offer of Judgment;
Resolution;
evidence shall render judgment
Similar papers.
Relief awarded must be Relief awarded may be
the same in nature and of different nature and
PAYMENT OF DOCKET FEES
amount as prayed for in amount from the relief
As a rule, the court acquires jurisdiction over the
the complaint prayed for
case only upon payment of prescribed fees

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General rule: Without payment, case is
considered not filed. Payment of docket fees is
mandatory and jurisdictional.
It is not simply the filing of the complaint or
appropriate initiatory pleading but the payment
of the prescribed docket fee, that vests a trial
court with jurisdiction over the subject matter or
nature of the action [Proton Pilipinas v. Banque
National de Paris (2005)]
Effect of Failure to Pay Docket Fees at Filing
Manchester v. CA (1987) [Old Rule]:
AUTOMATIC DISMISSAL. Any defect in the
original pleading resulting in underpayment of
the docket fees cannot be cured by amendment,
such as by the reduction of the claim as, for all
legal purposes, there is no original complaint
over which the court has acquired jurisdiction
Modification by Sun Insurance v. Asuncion (1989):
NOT AUTOMATIC DISMISSAL BUT Court may
allow payment of fees within reasonable period of
time. Note that payment should always be within
the prescriptive period of the action filed.
Further Modification by Heirs of Hinog v. Melicor
(2005): FEES AS LIEN. Where the trial court
acquires jurisdiction over a claim by the filing of
the pleading and the payment of the prescribed
filing fee, BUT SUBSEQUENTLY, the judgment
awards a claim not specified in the pleading, or
cannot then be estimated, or a claim left for
determination by the court, then the additional
filing fee shall constitute a lien on the judgment.
Note: Appellate docket and other lawful fees must be
paid within the same period for taking an appeal. Non-
payment is a valid ground for dismissal of an appeal.
[M.A. Santander v. Villanueva (2004)] However, delay
in the payment of docket fees confers upon the court
discretionary and not mandatory power to dismiss an
appeal. [Villamor v. CA (2004)]
FILING VERSUS SERVICE OF PLEADINGS
Filing is the act of presenting the pleading or other
papers to the clerk of court. [Rule, 13, Sec. 2]
Service is the act of providing a party with a copy of
the pleading or paper concerned. [Rule, 13, Sec. 2]
PERIODS OF FILING OF PLEADINGS
Answer to the complaint - The defendant shall
file his answer to the complaint within fifteen (15)
days after service of summons, unless a different
period is fixed by the court. [Rule 11, Sec. 1]
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BAR OPERATIONS COMMISSION
within thirty (30) days after receipt of summons
of the foreign entity where the defendant is a
foreign private juridical entity and service of
summons is made on the government official
designated by law to receive the same, the
answer shall be filed [Rule 11, Sec. 2]
Answer to amended complaint - Where the plaintiff
files an amended complaint as a matter of right, the
defendant shall answer the same within fifteen (15)
days after being served with a copy thereof.
Where its filing is not a matter of right, the defendant
shall answer the amended complaint within ten (10)
days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
Note that this Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.) party complaint, and
amended complaint-in-intervention. [Rule 11, Sec. 3]
Answer to counterclaim or cross-claim - A
counterclaim or cross-claim must be answered
within ten (10) days from service. [Rule 11, Sec. 4]
Answer to third (fourth, etc.)- party complaint - Same
rule as the answer to the complaint. [Rule 11, Sec. 5]
Reply - within ten (10) days from service of the
pleading responded to. [Rule 11, Sec. 6]
Answer to supplemental complaint - within ten (10)
days from notice of the order admitting the same,
unless a different period is fixed by the court.
Note that the answer to the complaint shall serve
as the answer to the supplemental complaint if no
new or supplemental answer is filed.
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 may also, upon like terms,
allow an answer or other pleading to be filed after the
time fixed by these Rules. [Rule 11, Sec. 11]
MANNER OF FILING
Manner of filing [Rule 13, Sec. 3] (Asked in the
2005 Bar particularly in comparison with filing in
criminal actions)
Personally.
By personally presenting the original to the
clerk of court.
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The pleading is deemed filed upon the receipt of 10 days after mailing, Affidavit of the person
the same by the clerk of court who shall unless otherwise mailing of facts showing
endorse on it the date and hour of filing. provided by the court compliance with Sec. 7 of
If a party avails of a private carrier, the date Rule 13.
of the courts actual receipt of the pleading Service by registered mail
(not the date of delivery to the private Whichever is earlier: Affidavit of the person
carrier) is deemed to be the date of the (a) Actual receipt by mailing of facts showing
filing of that pleading. [Benguet Electric the addressee compliance with Sec. 7 of
Cooperative v. NLRC (1992)] 5 days after the Rule 13
By registered mail. addressee received
Filing by mail should be through the registry 1st postmaster's AND
service (i.e. by depositing the pleading in notice
the post office). Registry receipt issued by
The pleading is deemed filed on the date it the post office
was deposited with the post office.

MODES OF SERVICE [Rule 13, Sec. 5] Service of judgments, final orders or

Personal service [Rule 13, Sec. 6] resolutions [Rule 13, Sec. 9]
Delivering personally a copy to the party or his By personal service;
counsel. By registered mail;
Leaving a copy in counsel's office with his clerk By publication at the expense of the prevailing
or with a person having charge thereof. party if party was summoned by publication and
If no person is found in his office, or if his office is has failed to appear in the action.
unknown, or if he has no office Leaving the copy
between 8am and 6pm at the party's or counsel's Priorities in modes of service and filing [Rule
residence (if known) with a person of sufficient 13, Sec. 11]
age and discretion then residing therein.
General rule: Personal filing and service. Resort
Service by (registered) mail [Rule 13, Sec. 7] to other modes of filing and service must be
By depositing the copy in the office, in a sealed accompanied by an explanation why the
envelope, plainly addressed to the party or his service/filing was not done personally. If there is
counsel at his office or at his residence (if no written explanation, the paper is considered
known), with postage fully pre-paid, and with not filed.
instructions to the postmaster to return the mail
to the sender after 10 days if undelivered. Exception: Papers emanating from the court.
If no registry service is available in the locality of
either sender or addressee, service may be When service is deemed complete
done by ordinary mail. Personal service is deemed complete upon
actual delivery [Rule 13, Sec. 10]
Substituted service [Rule 13, Sec. 8] Service by registered mail is complete upon
By delivering the copy to the clerk of court, with proof actual receipt by the addressee or after 5
of failure of both personal service and service by mail days from the date he received the first
notice of the postmaster, whichever date is
Completeness of service Proof of service (Rule 13 earlier. [Rule 13, Sec. 10]
(Rule 13 Sec. 10) Sec. 13) Service by ordinary mail is complete upon the
Personal service expiration of 10 days after mailing, unless the
Upon actual delivery Written admission of the court otherwise provides [Rule 13, Sec. 10]
party served, OR Substituted service is complete at the time of delivery
Official return of the server of the copy to the clerk of court together with the
OR proof of failure of both personal service and
Affidavit of the party service by mail. [Rule 13, Sec. 8]
serving, with a full
statement of the Purpose of the rule on completeness of service
date/place/manner of for service by registered mail: To make sure that
service. the party being served with the pleading, order or
Service by ordinary mail judgment is duly informed of the same so that such
party can take steps to protect the interests, i.e.,

PAGE 36
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enable to file an appeal or apply for other
appropriate reliefs before the decision becomes
final. [MINTERBRO v,CA (2012)]
Proof of filing and service
Proof of filing
Filing is proved by its existence in the record of
the case [Rule 13, Sec. 12].
If it is not in the record [Rule 13, Sec. 12].
When pleading is deemed Proof of filing
filed
Personally
Upon receipt of the Written/stamped
pleading by the clerk of acknowledgment by the
court clerk of court
By registered mail
On the date the Registry receipt, and
pleading was deposited affidavit of the person
with the post office who did the mailing
with:
Full statement of the
date/place
depositing the mail
in the post office in a
sealed envelope
addressed to the
court
Postage fully paid
Instructions to the
postmaster to
return the mail to
the sender after 10
days if undelivered
Notice of lis pendens [Rule 13, Sec. 14]
Lis Pendens - Notice of a pendency of the
action between the parties involving title to or
right of possession over real property.
Requisites: [AFP Mutual Benefit Association v.
CA (2001)]
(a) Action affects the title or the right of possession
of the real property;
(b) Affirmative relief is claimed;
(c) Notice shall contain the name of the parties and
the object of the action/defense and a description
of the property affected thereby;
(d) Action in rem.
(1) The notice serves as a warning to all persons,
prospective purchasers or encumbrancers of
the property in litigation to keep their hands
off the property in litigation unless they are
prepared to gamble on the result of the
proceedings.
(2) The defendant may also record a notice of lis
pendens when he claims an affirmative relief
of in his answer.
(3) The notice of cannot be cancelled on an ex
parte motion or upon the mere filing of a bond
by the party on whose title the notice is
annotated, as Sec. 14 provides that such
cancellation may be authorized only upon
order of court, after proper showing that:
[Roxas v. CA (1993)]
(4) The notice is for the purpose of molesting the
adverse party; or
(5) It is not necessary to protect the rights of the
party who caused it to be recorded

Proof of Service [Rule 13, Sec. 13]
(a) Proof of personal service shall consist of:
(1)a written admission of the party served, or
the official return of the server, OR
the affidavit of the party serving,
Content: full statement of the date, place
and manner of service.
Proof of service by ordinary mail:
(1)an affidavit of the person mailing
Content: facts showing compliance with
Rule 13, Sec. 7
Proof of service by registered mail
an affidavit of the person mailing containing
the facts showing compliance with Rule
13, Sec. 7, AND
the registry receipt issued by the mailing
office.
the registry return card which shall be filed
immediately upon its receipt by the sender, or
in lieu thereof of the unclaimed letter together
with the certified or sworn copy of the notice
given by the postmaster to the addressee.
Amended and supplemental pleadings
AMENDMENT
HOW TO AMEND PLEADINGS [Rule 10, Sec. 1]
Adding an allegation of a party;
Adding the name of a party;
Striking out an allegation of a party;
Striking out the name of a party;
Correcting a mistake in the name of a party; and
Correcting a mistaken or inadequate allegation
or description in any other respect.
Purpose: That the actual merits of the
controversy may speedily be determined,
without regard to technicalities, and in the most
expeditious and inexpensive manner.
Barfel Development v. CA (1993): As a general
policy, liberality in allowing amendments is
greatest in the early stages of a law suit,
decreases as it progresses and changes at
times to a strictness amounting to a prohibition.

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This is further restricted by the condition that the
amendment should not prejudice the adverse
party or place him at a disadvantage.
Form [Rule 10, Sec. 7]
A new copy of the entire pleading, incorporating
the amendments, which shall be indicated by
appropriate marks, shall be filed.
AMENDMENT AS A MATTER OF RIGHT
Substantial Amendments once, made at any
time before a responsive pleading is served. If it
is a reply, once, made at any time within 10 days
after it is served. [Rule 10, Sec. 2] (Asked in the
2003 Bar Exam)
AMENDMENTS BY LEAVE OF COURT
Substantial Amendments - If as a matter of
discretion, requires leave of court if:
It is substantial; and
A responsive pleading has already been served.
[Rule 10, Sec. 3]
Requisites for amendments by leave of court
Motion filed in court;
Notice to the adverse party;
Opportunity to be heard afforded to the adverse
party.
(Note: In the 2008 Bar Exam, a question was
asked on amendment of complaint to implead
additional parties)
When amendment by leave of court may not
be allowed
If the cause of action, defense or theory of the
case is changed.
If amendment is intended to confer jurisdiction to
the court.
If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property.
[PNB v. Florendo (1992)]
If amendment is for curing a premature or non-
existing cause of action.
If amendment is for purposes of delay.
Note:
Admitting an amended complaint in intervention is
a matter addressed to the courts discretion,
subject only to the limitations that amendments
should not substantially change the cause of
action or alter the theory of the case or made to
delay the action.
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BAR OPERATIONS COMMISSION
Once exercised, it cannot be disturbed on appeal,
except in case of abuse thereof. [Metropolitan
Bank v. Presiding Judge (1990)]
FORMAL AMENDMENT [Rule 10, Sec. 4]
A defect in the designation of the parties and
other clearly clerical errors may be summarily
corrected by the court motu proprio or by
motion at any stage of the action.
Provided that no prejudice is caused to the
adverse party.
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE [Rule 10, Sec. 5]
(Asked in the 2004 Bar Exam)
If issues not raised by the pleadings are tried
with the express/implied consent of the
parties, they shall be treated in all respects
as if they had been raised in the pleadings.
Amendment of pleadings as may be necessary to
cause them to conform to the evidence and to
raise these issues, may be made upon motion of
any party, any time (even after judgment).
But failure to amend does not affect the result
of the trial of these issues.
If evidence is objected to at the trial on the ground
that it is not within the issues made by the
pleadings, the court may allow the pleadings to be
amended and shall do so with liberality if the
presentation of the merits of the action and the
ends of substantial justice will be subserved
thereby. The court may grant a continuance to
enable the amendment to be made.
Amendments vis--vis supplemental pleadings
IFFERENT FROM SUPPLEMENTAL PLEADINGS
Supplemental pleadings (ASKED IN THE 2000
BAR EXAM)
Definition: One which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
Purpose: to bring into the records new facts
which will enlarge or change the kind of relief to
which the plaintiff is entitled [Ada v. Baylon
(2012), citing Young v. Spouses Yu]
It is made upon motion of a party with
reasonable notice and upon terms as are just.
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The cause of action stated in the supplemental

complaint must be the same as that stated in the Summons
original complaint. Otherwise, the court should
not admit the supplemental complaint. [Asset Definition: A coercive force issued by the court
Privatization Trust v. CA (1998)] to acquire jurisdiction over the person of the
defendant (asked in the 1999 Bar Exam)
A supplemental complaint/pleading supplies
deficiencies in aid of an original pleading, not to NATURE AND PURPOSE OF SUMMONS IN
entirely substitute the latter. RELATION TO ACTIONS IN PERSONAM, IN
REM AND QUASI IN REM
Unlike in an amended complaint, the original
complaint exists side by side with the supplemental PURPOSE
complaint. [Shoemart v. CA (1990)] To acquire jurisdiction over the person of the
defendant in a civil case;
A supplemental pleading may raise a new cause To give notice to the defendant that an action
of action as long as it has some relation to the has been commenced against him.
original cause of action set forth in the original
complaint. [Ada v. Baylon (2012)] ISSUANCE OF SUMMONS
Upon the filing of the complaint and the payment
A supplemental pleading may properly allege of legal fees, the clerk of court shall issue the
transactions, occurrences or events which had corresponding summons to the defendants.
transpired after the filing of the pleading sought [Rule 14, Sec. 1]
to be supplemented, even if the said
supplemental facts constitute another cause of
action. [Ada v. Baylon (2012)] CONTENTS OF SUMMONS [Rule 14, Sec. 2]
Summons must be directed to the defendant, signed
Amendments Supplemental pleadings by the clerk of the court under seal, and contain:
Name of the court and names of the parties;
Direction that the defendant answer within the
Reason for the Grounds for the time fixed;
amendment is available supplemental pleading Notice that unless the defendant so answers,
at time of the 1st arose after the 1st plaintiff will take judgment by default and may
pleading pleading was filed be granted the relief applied for.
Either as a matter of Always a matter of
right or a matter of discretion A copy of the complaint and order for appointment
discretion of guardian ad litem (if any) shall be attached to
Supersedes the pleading Supplements the the original and each copy of the summons.
pleading (i.e. Exists side NOTE that jurisdiction over person of defendant may
by side with the original also be acquired through voluntary appearance.
pleading)
When an amended A supplemental VOLUNTARY APPEARANCE
GENERAL RULE: Defendant's voluntary appearance in
pleading is filed, a new pleading does not
copy of the entire require the filing of a the action shall be equivalent to service of summons;
pleading must be filed new copy of the entire
EXCEPTION: Special appearance to file a MTD.
pleading

EFFECT OF AMENDED PLEADING

Effect [Rule 10, Sec. 8]
Amended pleading supersedes the pleading that
it amends.
Claims and defenses in superseded pleading
which are not incorporated in the amended
pleading are deemed waived.
Admissions made in the superseded pleading
may still be received in evidence against the
pleader.
BUT inclusion in the MTD of grounds other than
LOJ over the defendants person, is not deemed
a voluntary appearance.
Any mode of appearance in court by a defendant
or his lawyer is equivalent to service of summons,
absent any indication that the appearance of
counsel for petitioner is precisely to protest the
jurisdiction of the court over the person of the
defendant. [Delos Santos v. Montesa (1993)]

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WHO SERVES THE SUMMONS [Rule 14, sec. 3]
The sheriff or his deputy;
Other proper court officers;
For justifiable reasons, any suitable person
authorized by the court issuing the summons.
Officer having management of a jail or institution
deputized as special sheriff when defendant
is a prisoner [Rule 14, sec. 9]
RETURN OF SUMMONS [Rule 14, sec. 4]
When the service has been completed, the
server shall, within 5 days therefrom, serve a
copy of the return (personally or by registered
mail) to the plaintiff's counsel, and shall return
the summons to the clerk who issued it,
accompanied by proof of service.
ALIAS SUMMONS [Rule 14, sec. 5]
Upon plaintiffs demand, the clerk may issue an
alias summons if either:
Summons is returned without being served on
any/all of the defendants.
Summons was lost.
The server shall also serve a copy of the return
on the plaintiff's counsel within 5 days therefrom,
stating the reasons for the failure of service.
MODES OF SERVICE OF SUMMONS
Any application to the court under Rule 14 for
leave to effect service in any manner for which
leave of court is necessary shall be made by:
motion in writing,
supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds
for the application. [Rule 14, Sec. 17]
PERSONAL SERVICE
SERVICE IN PERSON ON DEFENDANT
By handing a copy of summons to him;
By tendering it to him, if he refuses to receive
and sign for it. [Rule 14, Sec. 6]
SUBSTITUTED SERVICE [Rule 14, Sec. 7]
(asked in the 2004 Bar Exam)
RATIONALE: Enjoyment of the privileges of
residence within the state, and the attendant right
to invoke the protection of its laws, are inseparable
from the various incidences of state citizenship.
One such incident of domicile is amenability to
suit within the state even during sojourns without
the state, where the state has provided and
employed a reasonable method for apprising
such an absent party of the proceedings against
him. [Northwest v. CA (1995)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
For a valid substituted service of summons, the
following must be established in the proof of
service: [Sps. Ventura v. CA (1987)]
Impossibility of the personal service of summons
within a reasonable time;
Efforts made to find the defendant personally
and the fact that such efforts failed; [Laus v.
CA (1993)]
Service by leaving copy of summons either:
With some person of suitable age and
discretion then residing in the defendants
residence;
With some competent person in charge of the
defendants office or regular place of business.
For a substituted service to be valid, summons
served at the defendant's residence must be
served at his residence at the time of such
service and not at his former place of residence.
"Dwelling house" or "residence" refer to the
place where the person named in the summons
is living at the time when the service is made,
even though he may be temporarily out of the
country at the time. [Sps. Ventura v. CA (1987)]
Substituted service must be used only as prescribed
and in the circumstances authorized by statute.
Statutes prescribing modes other than personal
service of summons must be strictly complied with to
give the court jurisdiction, and such compliance must
appear affirmatively in the return. [Laus v. CA (1993)]
While the sheriff's return carries with it the
disputable presumption of regularity in the sense
that the entries therein are deemed correct, it
does not necessarily follow that an act done in
relation to the official duty for which the return is
made was not done simply because it is not
disclosed therein. [Mapa v. CA (1992)]
Proof of substituted service of summons must
indicate the impossibility of service of summons
within a reasonable time;
specify the efforts exerted to locate the
defendant; and
state that the summons was served upon a
person of sufficient age and discretion who is
residing in the address, or who is in charge of
the office or regular place of business, of the
defendant. It is likewise required that the
pertinent facts proving these circumstances
be stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar (2012)]
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CONSTRUCTIVE SERVICE (BY
PUBLICATION) [Rule 14, Sec. 14]
REQUISITES
The action is in rem or quasi in rem;
Defendant's identity or whereabouts are unknown and
cannot be ascertained by diligent inquiry;
There must be leave of court.
Summons by publication in a personal action
cannot confer upon the court jurisdiction over the
person of the defendant, who does not voluntarily
submit himself to the authority of the court.
The proper recourse for the plaintiff is to locate
properties of the defendant whose address is
unknown and cause them to be attached.
[Consolidated Plywood v. Breve (1988)]
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES
See Annex A.
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN
[Rule 14, Sec. 14]
With leave of court, by publication in a
newspaper of general circulation
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES [Rule 14, Sec. 16]
With leave of court, may serve extraterritorially
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
[Rule 14, Sec.
from any interest in any property within the
Philippines;
Has defendants property in the Philippines,
attached.
MODES OF SERVICE
With leave of court, serve outside the Philippines
by personal service; or
With leave of court, serve by publication in a
newspaper of general circulation, in which
case copy of the summons and order of the
court must also be sent by registered mail to
the defendants last known address;
Any other manner the court deems sufficient
The court order granting extraterritorial service
shall specify a period of at least 60 days within
which the defendant must answer.
SERVICE UPON PRISONERS AND MINORS
SERVICE UPON PRISONER [Rule 14, Sec. 9]
Serve upon the officer having management of the jail/prison
Service of summons upon different entities
Summons is validly served if it is left with some
person of suitable age and discretion then
residing in the defendant's residence, even if
defendant was abroad at that time. The fact that
the defendant did not actually receive the
summons did not invalidate the service of such
summons. [Montalban v. Maximo (1963)]
 SERVICE UPON MINORS AND
EXTRA-TERRITORIAL SERVICE, WHEN INCOMPETENTS 10]
ALLOWED [Rule 14, Sec. 15] Serve upon the minor/incompetent and on his
legal guardian.
REQUISITES: (Asked in the 1997 and 2008 Bar Exam) If there is no guardian, plaintiff may apply for the
Defendant does not reside or is not found in the appointment of a guardian ad litem.
Philippines; If minor, may serve on his parents.
Action either:
Affects the plaintiffs personal status; PROOF OF SERVICE
Relates to or the subject matter of which is RETURN OF SERVICE [Rule 14, Sec. 4]
property within the Philippines in which When service has been completed, the server shall
defendant has a lien/interest; serve a copy of the return within 5 days (personally
Demands a relief which consists or by registered mail) to the plaintiff's counsel, and
wholly/partially in excluding the defendant shall return the summons to the clerk who issued it,
accompanied with the proof of service.

General rule: Return of service of summons

immediately shifts burden of evidence from
plaintiff to defendant since there is a
presumption of regularity.
Without return of service: Burden is on plaintiff.
In the case of Mapa v. CA (1992) though, while there
was a return, return was patently irregular, thus no
presumption of regularity could be had.

Exception: Doctrine of substantial compliance

If defendant actually received summons and
complaint despite all these technicalities.

PROOF OF SERVICE
If personal or substituted service: In writing by the
server and shall: [Rule 14, Sec. 18]
(1) Set forth the manner/place/date of service;

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Specify any papers which have been served SERVICE OF SUMMONS UPON DIFFERENT ENTITIES
with the process and the name of the person See Annex A.
who received the same;
Be sworn to when made by a person other than
a sheriff or his deputy.

If by publication: [Rule 14, Sec. 19]

Motions
Affidavit of the printer, his foreman, principal clerk, or
the editor, business/advertising manager, with a
MOTIONS IN GENERAL
copy of the publication attached,
DEFINITION OF A MOTION
AND
Affidavit showing the deposit of a copy of the An application for relief other than by a pleading
summons and order for publication in the post
[Rule 15, Sec. 1]
office, postage prepaid, directed to the defendant
by registered mail to his last known address.
Motion day [Rule 15, Sec. 7]
Except for urgent motions, motions are
EFFECT OF NON-SERVICE OF SUMMONS (asked in
scheduled for hearing:
the 2006 Bar Exam) On Friday afternoons;
Unless the defendant voluntarily submits to the
Afternoon of the next working day, if Friday is a
jurisdiction of the court,non-service or irregular
non-working day.
service of summons renders null and void all
subsequent proceedings and issuances in the Motion for leave to file a pleading/motion
action from the order of default up to and including [Rule 15, Sec. 9]
the judgment by default and the order of execution. Must be accompanied by the pleading/motion
sought to be admitted
If the defendant has already been served with
summons on the original complaint, no further Motions not acted upon
summons is required on the amended complaint Parties and counsel should not assume that
if it does not introduce new causes of action. courts are bound to grant the time they pray for.
[Ong Peng v. Custodio (1961)] After all, a motion that is not acted upon in due
time is deemed denied. [Orosa v. CA (1996)]
But if the defendant was declared in default on the
original complaint and the plaintiff subsequently filed MOTIONS VERSUS PLEADINGS
an amended complaint, new summons must be Motion Pleading
served on the defendant on the amended complaint,
as the original complaint was deemed withdrawn
upon such amendment. [Atkins v. Domingo (1923)] Contains allegations of Contains allegations of
facts the ultimate facts
Prays for a relief Prays for a relief
WAIVER OF SERVICE OF SUMMONS [Rule 14, Sec. 20] Grant of the relief does Grant of relief
General rule: Defendant's voluntary appearance in the not extinguish the action extinguishes the action
action shall be equivalent to service of summons; (interlocutory relief) (final relief)
Generally in writing (with Always in writing
Exception: Special appearance to file a MTD. some exceptions)

Inclusion in the MTD of grounds other than LOJ General rule: A motion cannot pray for judgment.
over the defendants person, is not deemed a
voluntary appearance. Any mode of appearance in Exception:
court by a defendant or his lawyer is equivalent to Motion for judgment on the pleadings.
service of summons, absent any indication that the Motion for summary judgment.
appearance of counsel for petitioner is precisely to Motion for judgment on demurrer to evidence.
protest the jurisdiction of the court over the person
of the defendant. [Delos Santos v. Montesa (1993)] CONTENTS AND FORM OF MOTIONS
Contents [Rule 15, Sec. 3]
Relief sought to be obtained
Grounds upon which it is based

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If it is required/necessary to prove facts alleged
in a motion, it shall be accompanied by
supporting affidavits and other papers.
Motions raising factual issues must be
supported by affidavits.
Form of motions [Rule 15,
Sec. 2] General rule: In writing.
Exception: Oral motions:
Made in open court;
In the course of a hearing/trial.
NOTICE OF HEARING AND HEARING OF MOTIONS
Requisites of motions (not made in open
court or in the course of hearing/trial)
In writing; [Rule 15, Sec. 2]
Hearing on the motion set by the applicant Notice of
hearing shall be addressed to all parties, and shall
specify the time and date of the hearing which
shall not be later than 10 days from the filing of the
motion. [Rule 15, Sec. 5]
Notice must be addressed to the counsels. A
notice of hearing addressed to the clerk of
court, and not to the parties, is no notice at all.
Accordingly, a motion that does not contain a
notice of hearing to the adverse party is nothing
but a mere scrap of paper, as if it were not filed;
hence, it did not suspend the running of the
period to appeal. [Provident International
Resources v. CA (1996)]
Motion and notice of hearing must be served at
least 3 days before the date of hearing; [Rule
15, Sec. 4]
Purpose: To prevent surprise upon the adverse
party and to enable the latter to study and meet
the arguments of the motion.
Exceptions:
Ex parte motions;
Urgent motions;
Motions agreed upon by the parties to be heard
on shorter notice, or jointly submitted by the
parties;
Motions for summary judgment which must be
served at least 10 days before its hearing.
Proof of service [Rule 15, Sec. 6]
General rule: A written motion set for hearing will not
be acted upon by the court if there is no proof of
service thereof.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
What may be proof:
If by registered mail: Affidavit or registry receipt
or postmark on envelope or return card, with
an explanation.
If by personal service: Affidavit or acknowledgment
of receipt by the other party.
Exceptions:
If the motion is one which the court can hear ex
parte.
If the court is satisfied that the rights of the
adverse parties are not affected by the motion.
If the party is in default because such a party is
not entitled to notice.
OMNIBUS MOTION RULE [Rule 15, Sec. 8]
Definition: A motion attacking a pleading/ order/
judgment/ proceeding must include all objections
then available. All objections not included in the
motion are deemed waived.
Exception: When the courts jurisdiction is in issue:
LOJ over subject-matter;
Litis pendentia;
Res judicata;
Prescription.
LITIGATED AND EX PARTE MOTIONS
Kinds of Motion
Motion Ex Parte - Made without notification to
the other party because the question
generally presented is not debatable.
Litigated Motion - Made with notice to the
adverse party so that an opposition thereto
may be made.
Motion Of Course - Motion for a kind of relief/remedy
to which the movant is entitled to as a matter of
right, Allegations contained in such motion do not
have to be investigated/verified.
Special Motion - Discretion of the court is
involved. An investigation of the facts alleged
is required.
PRO-FORMA MOTIONS
Pro forma motion A motion failing to indicate
time and date of the hearing
MOTIONS FOR BILL OF PARTICULARS
BILL OF PARTICULARS (ASKED IN THE 2003
BAR EXAM)
Definition: It is a detailed explanation respecting any
matter which is not averred with sufficient
definiteness/particularity in the complaint as to
enable a party to properly prepare his responsive
pleading or to prepare for trial. [Rule 12, Sec. 1]
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PURPOSE AND WHEN APPLIED FOR BOP or definite statement filed either as a
It is filed by the plaintiff pursuant to a court order separate pleading or as an amended
issued upon granting a motion for BOP filed by pleading, a copy of which must be served on
the defendant before the latter files an answer. the adverse party.

In said motion, the defendant prays for a more
definite statement of matters which are not averred
with sufficient definiteness in the complaint.
An action cannot be dismissed on the ground that the
complaint is vague/indefinite. The remedy of the
defendant is to move for a BOP or avail of the proper
mode of discovery. [Galeon v. Galeon (1973)]
Purpose
To inform the adverse party more specifically of
the precise nature and character of the cause of
action or defense alleged in the pleading, with
the view of enabling him to prepare properly his
responsive pleading or to prepare for trial.
Effect of non-compliance [Rule 12, Sec. 4]
In case of non -compliance or insufficient
compliance with the order for BOP, the court:
May order the striking out of the pleading (or portion
thereof) to which the order is directed; OR
Make such order as it may deem just.
If the plaintiff fails to obey, his complaint may be
dismissed with prejudice unless otherwise ordered
by the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]
If defendant fails to obey, his answer will be stricken
off and his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff. [Rule
9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

The purpose of a BOP is to define/ clarify/ EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING
particularize/ limit/ circumscribe the issues in the [Rule 12, Sec. 5]
case to expedite the trial and assist the court.
A Motion for BOP interrupts the period to file a
The only question to be resolved in a motion for responsive pleading.
a BOP is WON the allegations in the complaint
are averred with sufficient definiteness/ The period to which the movant is entitled at the
particularity to enable the movant to properly time of filing of the motion, which shall not be
prepare his responsive pleading and to prepare less than 5 days in any event.
for trial. [Tantuico, Jr. v. Republic (1991)]
NOTE the following distinctions:
A BOP becomes part of the pleading for which it
was intended. [Rule 12, Sec. 6] Bill of Particulars (BOP) Intervention

When applied for [Rule 12, Sec. 1]

Before responding to a pleading Purpose is to enable a Purpose is to enable a
If the pleading is a reply, within 10 days from party bound to respond person not yet a party to
service thereof to a pleading to get an action, yet having a
What a motion for bill of particulars should more details about certain right or interest in
point out [Rule 12, Sec. 1] matters which are such action, the
The defects complained of; alleged generally or opportunity to appear
The paragraph wherein they are contained; which are indefinite and and be joined so he
The details desired. vague, so as to properly could assert or protect
guide such party in such right or interest
ACTIONS OF THE COURT [Rule 12, Sec. 2] answering the pleading
Deny; and to avoid surprise in
Grant the motion outright; the trial of the case
Allow the parties the opportunity to be heard. Available to the Available to any person
defendant before he files not yet a party to the
COMPLIANCE WITH THE ORDER AND EFFECT OF NON- his responsive pleading action at any time after
COMPLIANCE the commencement of
Compliance with order [Rule 12, Sec. 3] an action, even during
If motion for BOP is granted wholly/partially: the proceeding, but not
Within 10 days from notice of order, BOP or a after the trial has been
more definite statement should be submitted concluded
(unless court fixes a different period).

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Terminating the action before trial
MOTION TO DISMISS
DEFINITION
A remedy of the defendant, or the responding
party in general, which attacks the entire
pleading and seeks its dismissal based on:
Grounds which are patent on the face of the
complaint;
Defenses available to the defendant at the time
of the filing of the complaint
It hypothetically admits the facts stated in the
complaint.
It is not a responsive pleading. It is not a
pleading at all. It is subject to the omnibus
motion rule since it is a motion that attacks a
pleading. Hence, it must raise all objections
available at the time of the filing thereof.
General rule: A court may not motu propio dismiss a
case, unless a motion to that effect is filed by a party.
Exception:
Cases where the court may dismiss a case motu
propio; [Rule 9, Sec. 1]
Failure to prosecute; [Rule 17, Sec. 3]
Sec. 4, Revised Rule on Summary Procedure.
TYPES OF DISMISSAL OF ACTION
MTD before answer under Rule 16;
MTD under Rule 17:
Upon notice by plaintiff;
Upon motion by plaintiff;
Due to fault of plaintiff.
Demurrer to evidence after plaintiff has
completed the presentation of his evidence
under Rule 33;
Dismissal of an appeal.
Note:
A MTD shall be proved/disproved according to
the rules of evidence.
The hearing shall be conducted as an ordinary
hearing and the parties shall be allowed to present
evidence, except when the motion is based upon
failure of the complaint to state a cause of action.
When the MTD is based on facts not appearing
of record, the court may hear the matter on
affidavits/depositions.
GROUNDS [Rule 16, Sec. 1] (Asked in the 2008 Bar
Exam)
LOJ over the defendants person
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
LOJ over the subject matter of the claim
Improper venue
Plaintiffs lack of legal capacity to sue
Litis pendentia
Res judicata
Prescription
Failure to state a cause of action
Extinguished claim
Unenforceable claim under the Statute of Frauds
Non-compliance with a condition precedent for
filing claim
LOJ over the defendants person
The objection of LOJ over the person on
account of lack of service or defective service of
summons, must be raised:
At the very first opportunity;
Before any voluntary appearance is made.
If a defendant had not been properly summoned, the
period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
jurisdiction of the court. [Laus v. CA (1993)]
Appearance of counsel is equivalent to summons,
unless such is made to protest the jurisdiction of
the court over the person of the defendant. If
grounds other than invalid service of summons are
raised, it cannot be considered as a special
appearance. [De los Santos v. Montesa (1993)]
LOJ over the subject matter of the claim
If the complaint shows on its face LOJ, the court
may dismiss the case outright instead of hearing
the motion.
A MTD on the ground of LOJ over the subject
matter may be raised either:
Before answer;
After answer is filed;
After hearing had commenced;
At any stage of the proceeding, even for the first
time on appeal and even if no such defense
is raised in the answer.
Improper venue
Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading, the
venue cannot truly be said to have been improperly
laid since, for all practical intents and purposes, the
venue though technically wrong may yet be
considered acceptable to the parties for whose
convenience the rules on venue had been devised.
Improper venue may be waived and such waiver
may occur by laches. [Diaz v. Adiong (1993)]
A stipulation between the parties as to venue does
not preclude the filing of suits in the residence of
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plaintiff/defendant under Rule 4, Sec. 2(b). In the
absence of qualifying/restrictive words which would
indicate that a specific place alone is the venue, an
agreement as to venue is merely permissive and
there is no waiver of right to pursue remedy in
other courts. [HSBC v. Sherman (1989)]
If the court erroneously denies the MTD, the
remedy is prohibition.
Plaintiffs lack of legal capacity to sue
The plaintiff lacks legal capacity to sue:
When he does not possess the necessary
qualification to appear at the trial (e.g. when
he plaintiff is not in the full exercise of his civil
rights);
When he does not have the character which he
claims, which is a matter of evidence (e.g.
when he is not really a duly appointed
administrator of an estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue
refers to the fact that the plaintiff is not a real
party in interest, in which case the ground for
dismissal would be that the complaint states no
cause of action.
Litis pendentia
Requisites: [Anderson Group v. CA (1997)
Asked in the 2007 Bar Exam]
Identity of parties;
identity of rights asserted and relief prayed for;
Relief founded on the same facts and the same
basis;
Identity in the 2 proceedings should be such that
any judgment which may be rendered in the
other action will amount to res judicata on the
action under consideration.
It is not required to allege that there be a prior
pending case. It is sufficient to allege and prove
the pendency of another case, even if same had
been brought later.
It does not require that the later case be
dismissed in favor of the earlier case. To
determine which case should be abated, apply:
The More Appropriate Action Test;
The Interest of Justice Test, taking into account:
Nature of the controversy;
Comparative accessibility of the court to the
parties;
Other similar factors.
In both tests, the parties good faith shall be
taken into consideration.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
The 1st case shall be abated if it is merely an
anticipatory action or defense against an
expected suit. The 2nd case will not be abated if
it is not brought to harass. [Vitrionics Computers
v. RTC (1993)]
Res judicata
Requisites (Asked in the 2000 Bar Exam):
Former judgment rendered by a court having
jurisdiction over the subject matter and over
the parties;
Judgment must be a final judgment;
Judgment must be on the merits;
There can be res judicata without a trial, such
as in a judgment on the pleadings (Rule 34);
a summary judgment (Rule 35); or an order
of dismissal under Rule 17, Sec. 3.
There must be identity of parties, of subject
matter and of the causes of action.
For res judicata to apply, absolute identity of
parties is not required because substantial identity
is sufficient. Inclusion of additional parties will not
affect the application of the principle of res judicata.
The test of identity of cause of action lies not in the
form of the action but on WON the same evidence
would support and establish the former and the
present causes of action. [DBP v. Pundogar (1993)]
Rationale: The sum and substance of the whole
doctrine is that a matter once judicially decided
is finally decided because of:
Public policy and necessity makes it the interest
of the State that there should be an end to
litigation;
The hardship on the individual that he should be
vexed twice for the same cause. [Nabus v.
CA (1991)]
Two concepts of res judicata [ABALOS V. CA
1993, ASKED IN THE 1997 BAR EXAM)]
Bar by prior judgment Judgment on the merits
in the 1st case constitutes an absolute bar to
the subsequent action not only as to every
matter which was offered and received to
sustain or defeat the claim/demand, but also
to any other admissible matter which might
have been offered for that purpose and to all
matters that could have been adjudged in
that case. (Asked in the 2002 Bar Exam)
Conclusiveness of judgment Where the 2nd action
between the parties is upon a different
claim/demand, the judgment in the 1st case
operates as an estoppel only with regard to those
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issues directly controverted, upon the
determination of which the judgment was
rendered.
Note: A single act or omission that causes damage
to an offended party may give rise to two separate
civil liabilities on the part of the offender (1) civil
liability ex delicto, that is, civil liability arising from
the criminal offense under Article 100 of the
Revised Penal Code, 52 and (2) independent
civil liability, that is, civil liability that may be
pursued independently of the criminal proceedings.
Because of the distinct and independent nature of
the two kinds of civil liabilities, jurisprudence holds
that the offended party may pursue the two types
of civil liabilities simultaneously or cumulatively,
without offending the rules on forum shopping, litis
pendentia, or res judicata.[Lim v. Co (2012)]
On naturalization: A decision or order granting
citizenship will not even constitute res judicata to any
matter or reason supporting a subsequent judgment
cancelling the certification of naturalization already
granted, on the ground that it had been illegally or
fraudulently procured. [Republic v. Ong (2012)]
Statute of limitations
Prescription applies only when the complaint on
its face shows that indeed the action has already
prescribed.
If the fact of prescription is not indicated on the
face of the complaint and the same may be
brought out later, the court must defer decision
on the motion until such time as proof may be
presented on such fact of prescription.
Prescription Laches
Concerned with the fact Concerned with the
of delay effect of delay
A matter of time A matter of equity
Statutory Not statutory
Applies in law Applies in equity
Based on fixed time Not based on fixed time
Complaint states no cause of action
Failure to state a cause of action (not lack of cause
of action) is the ground for a MTD. The former
means there is insufficiency in the allegations in
the pleading. The latter means that there is
insufficiency in the factual basis of the action.
The failure to state a cause of action must be
evident on the face of the complaint itself.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Test: Assuming the allegations and statements to be
true, does the plaintiff have a valid cause of action?
A MTD based upon the ground of failure to state a
cause of action imports a hypothetical admission by
the defendant of the facts alleged in the complaint.
If the court finds the allegations of the complaint to
be sufficient but doubts their veracity, it must deny
the MTD and require the defendant to answer and
then proceed to try the case on its merits.
A complaint containing a premature cause of
action may be dismissed for failure to state a
cause of action.
If the suit is not brought against the real party-in-
interest, a motion to dismiss may be filed on the
ground that the complaint states no cause of
action. [Tanpinco v. IAC (1992)]
Extinguished claim
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or
otherwise extinguished.
Unenforceable claim under the statute of
frauds Article 1403 (2) CC requires certain
contracts to be evidenced by some note or
memorandum in order to be enforceable, to wit:
An agreement that by its terms is not to be performed
within a year from the making thereof;
A special promise to answer for the debt,
default, or miscarriage of another;
An agreement made in consideration of marriage,
other than a mutual promise to marry;
An agreement for the sale of goods, chattels or
things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in
action, or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in
his sales book, at the time of the sale, of the
amount and kind of property sold, terms of sale,
price, names of the purchasers and person on
whose account the sale is made, it is a
sufficient memorandum;
An agreement for the leasing for a longer period
than one year, or for the sale of real property
or of an interest therein;
A representation as to the credit of a third person.
Non-compliance with a condition precedent
Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the
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case on the ground of non-compliance with a
condition precedent.
RESOLUTION OF MOTION
During the hearing of the motion, parties shall
submit: [Rule 16, Sec. 2]
Their arguments on questions of law;
Their evidence on questions of fact.
Exception: Those not available at that time.
If the case goes to trial, such evidence
presented shall automatically be part of the
evidence of the party presenting the same.
After the hearing, the court may either: [Rule 16,
Sec. 3]
Dismiss the action/claim;
Deny the MTD;
Order the amendment of pleadings.
The court cannot defer the resolution of the MTD
for the reason that the ground relied upon is not
indubitable.
The courts resolution on the MTD must clearly
and distinctly state the reasons therefor.
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED
Remedies of plaintiff when motion to dismiss
is granted
If the motion is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in
character, the plaintiff has several options:
Depending upon the ground for the dismissal of
the action, the plaintiff may refile the
complaint, e.g when ground for dismissal is
anchored on improper venue.
He may appeal from the order of dismissal
where the ground relied upon is one which
bars refilling of complaint e.g.
Res judicata
Prescription
Extinguishment of the obligation
Violation of Statutes of Fraud
The plaintiff may also avail of a petition for
certiorari, alleging grave abuse of discretion.
[Riano]
REMEDIES OF THE DEFENDANT WHEN THE MOTION IS
DENIED
The movant shall file his answer within the balance
of the period described in Rule 11 to which he
was entitled at the time of serving his motion,
but not less than 5 days in any event.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Appeal is not a remedy since denial of a
motion to dismiss is an interlocutory order. As
a general rule, defendant files his answer and
then may appeal an adverse judgment.
Another remedy is to file a certiorari, case under
Rule 65 alleging grave abuse of discretion.
[Riano]
EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN
GROUNDS
Of dismissal: [Rule 16, Sec.5]
General rule: The action/claim may be re-filed.
Exception: The action cannot be re-filed
(although subject to appeal) if it was dismissed
on any of the following grounds:
Res judicata;
Prescription;
Extinguishment of the claim/demand;
Unenforceability under the Statute of Frauds.
[Rule 16, Sec. 1 (f),(h),(i)]
On periods for pleading: [Rule 16, Sec.4]
If MTD is denied Movant must file his answer
within the balance of the period under Rule 11 to
which he was entitled at the time of serving his
MTD (but not less than 5 days) computed from
the his receipt of notice of the denial.
If pleading is ordered to be amended movant
must file his answer within the period under Rule
11, counted from service of the amended pleading
(unless the court gives a longer period).
On other grounds and omnibus motion rule:
MTD based on the following grounds may be
filed even after filing an answer: [Rule 9, Sec. 1]
LOJ over subject-matter;
Litis pendentia;
Res judicata;
Prescription.
Dismissal of the complaint under Rule 16, Sec. 6
is without prejudice to the prosecution (in the
same or in a separate action) of a counterclaim
pleaded in the answer.
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES
[Rule 16, Sec. 6]
If no MTD was filed, the grounds in Rule 16, Sec. 1
may be pleaded as an affirmative defense and the
court may conduct a preliminary hearing thereon
as if a MTD was filed.
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BAR BY DISMISSAL
Subject to the right of appeal, an order granting
a motion to dismiss based on paragraphs:
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
That the claim or demand set forth in the
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished; and
- That the claim on which the action is founded is
enforceable under the provisions of the
statute of frauds
shall bar the refiling of the same action or claim.
[Rule 16, Sec. 5]
Upon plaintiffs filing of notice, the court shall issue
an order dismissing the case. (i.e. the court has no
discretion on WON to dismiss the case).
General rule: The dismissal is without prejudice.
Exceptions:
If the notice of dismissal provides that it is
with prejudice.
The dismissal is still with prejudice even it the
notice of dismissal does not so provide,
where such notice is premised on the fact of
payment by the defendant of the claim
involved. [Serrano v. Cabrera (1953)]

DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER Two-Dismissal Rule

RULE 33 If the plaintiff has previously dismissed an action
MTD under Rule 16 MTD under Rule 33 based on or including the same claim, the notice
(Demurrer to evidence) operates as an adjudication upon the merits.
Based on preliminary Based on insufficiency
objections of evidence DISMISSAL UPON MOTION BY PLAINTIFF;
May be filed by any May be filed only by the EFFECT ON EXISTING COUNTERCLAIM
defending party against defendant against the
whom a claim iscomplaint of the DISMISSAL UPON PLAINTIFFS MOTION [Rule 17,
asserted in the action plaintiff Sec. 2] Here, dismissal of the complaint is subject
Should be filed within May be filed only after to the courts discretion and upon such terms and
the time for, but prior to, the plaintiff has conditions as may be deemed proper by court
the filing of thecompleted the
defending partyspresentation of his Leave of court for the dismissal is necessary because
answer to the pleading evidence the motion is made after a responsive pleading or a
asserting the claim motion for summary judgment has been served.
against him
If denied, defendant If denied, defendant If defendant pleaded a counterclaim prior to the
answers; else, he may be may present evidence. service upon him of the plaintiffs motion for
declared in default. dismissal, the dismissal shall be without
If granted, plaintiff prejudice to the defendants right to either:
Prosecute his counterclaim in a separate action;
If granted, plaintiff may appeals and the order
appeal or if a of the dismissal is Have the counterclaim resolved in the same
subsequent reversed; the defendant action, by manifesting such preference within
case is not barred, he loses his right to 15 days from being notified of plaintiffs
may re-file the case present evidence. motion for dismissal.

Dismissal here is without prejudice, unless

otherwise provided in the order.

Dismissal of Actions Court approval of the court is necessary in the

DISMISSAL UPON NOTICE BY PLAINTIFF;
TWO-DISMISSAL RULE
DISMISSAL UPON PLAINTIFFS NOTICE [Rule 17, Sec.
1] Dismissal here is effected not by motion but by
mere notice before the service of either:
The answer;
A motion for summary judgment.
dismissal/compromise of a class suit.
DISMISSAL DUE TO THE FAULT OF
PLAINTIFF DISMISSAL DUE TO PLAINTIFFS FAULT
[Rule 17, Sec. 3] The case may be dismissed motu
proprio or upon the defendants motion if, without
justifiable cause, plaintiff fails either:
To appear on the date of the presentation of his
evidence-in-chief on the complaint;
The plaintiffs failure to appear at the trial
after he has presented his evidence and

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rested his case does not warrant the res judicata. Res judicata, however, is not applicable
dismissal of the case on the ground of since the court held that it did not acquire jurisdiction
failure to prosecute. due to non-payment of docket fees.
It is merely a waiver of his right to cross-
examine and to object to the admissibility Dismissal on the ground of LOJ does not constitute
of evidence. [Jalover v. Ytoriaga (1977)] res judicata, there being no consideration and
To prosecute his action for an unreasonable adjudication of the case on the merits. Neither is
length of time (nolle prosequi); there litis pendentia. [Meliton v. CA (1992)]
The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances,
the plaintiff is chargeable with want of due
diligence in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
Pre-Trial
To comply with the ROC or any court order.
CONCEPT OF PRE-TRIAL
DEFINITION
The dismissal has the effect of an adjudication on the
A mandatory conference and personal confrontation
merits, unless the court declares otherwise, without
before the judge between the parties litigant and their
prejudice to the right of the defendant to prosecute his
representative counsels, called by the court after the
counter-claim in the same or separate action.
joinder of issues in a case or after the last pleading
has been filed and before trial, for the purpose of
Rule 17, Sec. 2 Rule 17, Sec. 3
settling the litigation expeditiously or simplifying the
issues without sacrificing the necessary demands of
justice (Asked in the 1999 Bar Examination, Examiner
Dismissal is at the Dismissal is not procured
asked to compare this with proceedings in the
plaintiffs instance by plaintiff, although
Katarungang Pambarangay).
justified by causes
imputable to him
NATURE AND PURPOSE
Dismissal is a matter of Dismissal is a matter of PURPOSE
procedure, without evidence, an To consider: [Rule 18, Sec. 2]
prejudice unless adjudication on the Possibility of an amicable settlement or of a
otherwise stated in the merits submission to alternative modes of dispute
court order or on resolution;
plaintiffs motion for Simplification of the issues;
dismissal of his own Necessity/desirability of amendments to the
complaint. pleadings;
Dismissal is without Dismissal is without Possibility of obtaining stipulations or
prejudice to the prejudice to the admissions of facts and of documents to
defendants right to defendants right to avoid unnecessary proof;
prosecute his prosecute his Limitation of the number of witnesses;
counterclaim in a counterclaim in the Advisability of a preliminary reference of issues
separate action (unless same or in a separate to a commissioner;
within 15 days from action Propriety of rendering judgment on the
notice of the motion he pleadings, or summary judgment, or of
manifests his intention dismissing the action should a valid ground
to have his counterclaim therefor be found to exist;
resolved in the same Advisability/necessity of suspending the
action). proceedings; and
Other matters that may aid in the prompt
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM disposition of the action.
OR THIRD-PARTY COMPLAINT [Rule 17, Sec. 4]
Note:
This Rule applies to the dismissal of counterclaims, Pre-trial is primarily intended to make certain
cross-claims or 3rd-party complaints. that all issues necessary to the disposition of
a case are properly raised.
Where a counterclaim is made the subject of a Thus, to obviate the element of surprise, parties are
separate suit, it may be abated upon a plea of auter expected to disclose at a pre-trial conference
action pendentia and/or dismissal on the ground of (PTC) all issues of law and fact which they intend

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to raise at the trial, except such as may Citibank v. Chua (1993): SC admonishes the courts
involve privileged or impeaching matters. The against precipitate orders of default as they have the
determination of issues at a pre-trial effect of denying the party the chance to be heard.
conference bars the consideration of other
questions on appeal. [Caltex v. CA (1992)] There are instances when parties may properly
When conducted: After the last pleading has be defaulted, but such is the exception rather
been served and filed, it shall be the plaintiffs than the rule and should be used only in clear
duty to move ex parte that the case be set for cases of obstinate refusal or inordinate neglect
pre-trial. [Rule 18, Sec. 1] to comply with court orders.
A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading FAILURE TO APPEAR AT PRE-TRIAL
may be the plaintiff's reply, except where the Who fails to Effect
period to file the last pleading has lapsed. appear
Discretion to declare a party non-suited in PTC Plaintiff Cause for dismissal of the
must not be abused. Unless a party is so action which will be with
negligent, irresponsible, contumacious, or prejudice, unless otherwise
dilatory as to provide substantial grounds for ordered by the court
dismissal for non-appearance, the court Defendant Cause to allow plaintiff to
should consider lesser sanctions which would present evidence ex parte, and
still amount to achieving the end desired. court to render judgment on
[Calalang v. CA (1993)] the basis thereof
NOTICE OF PRE-TRIAL [Rule 18, Sec. 3] Default by defendant As in default
Notice of pre-trial shall be served on counsel, or (Rule 9, Sec. 3) (failure to appear by
on the party who has no counsel. plaintiff) (Rule 18, Sec. 5)
Upon motion and notice Not required
Counsel served with such notice has a duty to to defendant.
notify the party he represents.
Requires proof of failure Not required
to answer
At the start of the preliminary conference, the judge
Court to render Court to allow plaintiff
is mandated to refer the parties and/or their
judgment, unless it to present evidence ex
counsels to the mediation unit of the Philippine
Mediation Center (PMC) for purposes of mediation.
requires submission of parte, then the court
If the mediation fails, the judge will schedule the evidence shall render judgment
continuance of the preliminary conference. This Relief awarded must be Relief awarded may be
rule applies to Metro Manila, Cebu Davao City, and the same in nature and of different nature and
other place where PMC Units may be further amount as prayed for in amount from the relief
organized and designated. [Admin, Circular No. the complaint prayed for
20-2002; Admin. Circular No. 50-2005, April 26,
2005] A defendant who already filed an answer cannot
be declared in default. Only when the
APPEARANCE OF PARTIES; EFFECT OF defendant fails to file an answer to the
FAILURE TO APPEAR complaint may the court proceed to render
APPEARANCE OF PARTIES [Rule 18, Sec. 4] judgment. [Lesaca v. CA (1992)]
It is the duty of the parties and their counsel to The Revised Rules on Summary Procedure
appear at the pre-trial. does not provide that an answer filed after
the reglementary period should be expunged
A partys non-appearance may be excused only from the records.
if either: As a matter of fact, there is no provision for an
Valid cause is shown for it; entry of default if a defendant fails to file his
A representative appears in his behalf, fully answer.
authorized in writing: The defense of LOJ may have even been raised
To enter into an amicable settlement; by the defendant in a MTD as an exception to
To submit to alternative modes of dispute the rule on prohibited pleadings in the
resolution; Revised Rule on Summary Procedure.
To enter into stipulations/admissions of facts Such a motion is allowed under Sec. 19(a)
and of documents. thereof. [Bayog v. Natino (1996)]

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Where the failure to appear at the pre-trial hearing
was uncontrovertedly due to illness, the default
order may be set aside on the ground of
accident over which petitioner had no control.
Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order. [Malanyaon
v. Sunga (1992)]
If despite all efforts exerted by the TC and the
parties the settlement conference still fails,
then the action should have continued as if
no suspension had taken place. [Goldloop
Properties v. CA (1992)]
Note: AM 03-1-09-SC (No termination of pre-trial
for failure to settle)

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO CALENDAR OF CASES

APPEAR Under the direct supervision of the judge, the
PRE-TRIAL BRIEF [Rule 18, Sec. 6] clerk of court shall keep a calendar of cases
Parties shall file and serve their respective pre-trial for pre-trial, for trial, those whose trials were
briefs, ensuring receipt by adverse party at adjourned/postponed, and those with motions
least 3 days before the date of the pre-trial. to set for hearing. [Rule 20, Sec. 1]
Pre-trial briefs contents (Asked in the 2001 Bar Preference shall be given to habeas corpus cases,
Exam): election cases, special civil actions, and those
Statement of their willingness to enter into so required by law. [Rule 20, Sec. 1]
amicable settlement or alternative modes The assignment of cases to the different
of dispute resolution, indicating the branches of a court shall be done exclusively
desired terms thereof; by raffle. The assignment shall be done in
Summary of admitted facts and proposed open session of which adequate notice shall
stipulation of facts; be given so as to afford interested parties the
Issues to be tried/resolved; opportunity to be present. [Rule 20, Sec. 2]
Documents/exhibits to be presented, stating
the purpose thereof; DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
Manifestation of their having availed or their CASE AND PRE-TRIAL IN CRIMINAL CASE (Bar
intention to avail themselves of discovery 1997, Riano)
procedures or referral to commissioners;
Number and names of the witnesses, and the Civil Case Criminal Case
substance of their respective testimonies.
[AM No. 03-1-09-SC]
Set when the plaintiff Ordered by the court and
Note: Failure to file the pre-trial brief shall have the moves ex parte to set the no motion to set the case
same effect as failure to appear at the pre-trial. case for pre-trial [Rule for pre-trial is required
18, Sec. 1] from either the
RECORD OF PRE-TRIAL [Rule 18, Sec. 6] prosecution or the
The pre-trial proceedings shall be recorded. defense [Rule 118, Sec. 1]
Upon termination of such proceedings, the Made after the pleading Ordered by the court
court shall issue the pre-trial order. has been served and after arraignment and
Pre-trial orders contents: filed [Rule 18, Sec. 1] within 30 days from the
Matters taken up in the conference; sate the court acquired
Action taken thereon; jurisdiction over the
Amendments allowed on the pleadings; person of the accused
Agreements/admissions made by the parties [Rule 118, Sec. 1]
as to any matters considered; Considered the Does not include the
Should the action proceed to trial, the explicit possibility of an considering of the
definition and limit of the issues to be tried. amicable settlement as possibility of amicable
Consequence: The contents of the order shall an important objective settlement of ones
control the subsequent course of the action, [Rule 118, Sec. 2(a)] criminal liability as one
unless modified before trial to prevent of its purposes [Rule 118,
manifest injustice. Sec. 1]
Upon manifestation of the parties of their The arrangements and (Stricter procedure)
willingness to discuss a compromise, the TC admissions in the pre- All agreements or
should order the suspension of the proceedings trial are not required to admissions made or
to allow them reasonable time to discuss and be signed by both parties entered during the pre-
conclude an amicable settlement. and their counsels. trial conference shall be

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Civil Case Criminal Case thereof or to submit the case to any of the alternative
modes of dispute resolution [AM No. 03-1-09-SC]

Under the Rules, they reduced in writing and EXCEPTION TO THE APPLICATION OF RA 9285:
are instead to be signed by both the labor disputes covered by the Labor Code;
contained in the record accused and counsel; the civil status of persons;
of pre-trial and pre-trial otherwise, they cannot validity of a marriage;
order [Rule 18, Sec. 7] be used against the any ground for legal separation;
accused. [Rule 118, Sec. the jurisdiction of courts;
[AM No. 03-1-09] - 2] future legitime;
requires the proceedings criminal liability; and
during the preliminary those which by law cannot be compromised.
conference to be
recorded in the Minutes MODES OF ALTERNATIVE DISPUTE RESOLUTIONS:
of Preliminary Arbitration [RA, 9285, Section 1]
Conference to be signed A voluntary dispute resolution process in which
by both parties and/or one or more arbitrators, appointed in
counsel. accordance with the agreement of the parties, or
(Note: either party or his rules promulgated pursuant to this Act, resolve a
counsel is allowed to dispute by rendering an award\
sign)
The sanctions for non- Sanctions are imposed Note: A court before which an action is brought in a
appearance are imposed upon the counsel for the matter which is the subject matter of an arbitration
upon the plaintiff and accused or the agreement shall, if at least one party so requests
the defendant [Rule 18, prosecutor [Rule 118, not later that the pre-trial conference, or upon the
Sec. 4] Sec. 3] request of both parties thereafter, refer the parties
A pre-trial brief is A pre-trial brief is not to arbitration unless it finds that the arbitration
specifically required to specifically required. agreement is null and void, inoperative or
be submitted [Rule 18, incapable of being performed. [RA 9285, Sec. 24]
Sec. 6]
Different Kinds:
Domestic Arbitration an arbritration that is not
ALTERNATIVE DISPUTE RESOLUTION
international; governed by RA 876
(ADR) [RA 9285] (Arbitration Law) [RA 9285, Sec. 32]
WHAT IS ALTERNATIVE DISPUTE RESOLUTION
International Arbitration - An arbitration is
SYSTEM? Means any process or procedure used to
international if:
resolve a dispute or controversy, other than by
the parties to an arbitration agreement have,
adjudication of a presiding judge of a court or an
at the time of the conclusion of that
officer of a government agency, as defined in this
agreement, their places of business in
Act, in which a neutral third party participates to
different States; or
assist in the resolution of issue [RA 9285, Sec. 3]
one of the following places is situated outside
the State in which the parties have their
POLICY BEHIND THE ADR: to actively promote party
places of business:
autonomy in the resolution of disputes or the
the place of arbitration if determined in, or
freedom of the party to make their own
pursuant to, the arbitration agreement;
arrangements to resolve their disputes [RA 9285, any place where a substantial part of the
Sec. 2] obligations of the commercial relationship
is to be performed or the place with which
Notes: the subject-matter of the dispute is most
At the start of the pre-trial conference, the judge closely connected; or
shall immediately refer the parties and/or their the parties have expressly agreed that the
counsel if authorized by their clients to the PMC subject matter of the arbitration
mediation unit for purposes of mediation if agreement relates to more than one
available.[AM No. 03-1-09-SC] country [Article 3, Model Law on
International Commercial Arbritration]
The pre-trial briefs of parties must include the parties
statement of their willingness to enter into an
amicable settlement indicating the desired terms

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Mediation [RA, 9285, Sec. 1]
a voluntary process in which a mediator, selected
by the disputing parties, facilitates
communication and negotiation, and assist
the parties in reaching a voluntary agreement
regarding a dispute
includes conciliation
Mini-trial [RA, 9285, Sec. 1]
A structured dispute resolution method in which the
merits of a case are argued before a panel
comprising senior decision makers with or without
the presence of a neutral third person after which
the parties seek a negotiated settlement
Early Neutral Evaluation [RA, 9285, Sec. 1]
An ADR process wherein parties and their
lawyers are brought together early in a pre-trial
phase to present summaries of their cases and
receive a nonbinding assessment by an
experienced, neutral person, with expertise in
the subject in the substance of the dispute
Combination of Alternative Dispute
Resolution [RA, 9285, Sec. 1]
Example: Med-Arb: step dispute resolution
process involving both mediation and arbitration
Intervention
DEFINITION OF INTERVENTION (Asked in the
2003 Bar Exam) [Rule 19, Sec. 1]
A legal remedy whereby a person is permitted to
become a party in a case, by either:
Joining the plaintiff;
Joining the defendant;
Asserting his right against both plaintiff and
defendant, considering that either:
He has a legal interest in the subject matter
of the action;
He has legal interest in the success of either
of the parties
He has legal interest against both of the
parties
He is going to be adversely affected by the
disposition of the property in the custody
of the court
Metropolitan Bank v. Presiding Judge (1990):
Intervention is a proceeding in a suit/action by which a
3rd person is permitted by the court to make himself a
party, either joining plaintiff in claiming what is sought
by the complaint, or uniting with
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
defendant in resisting the claims of plaintiff, or
demanding something adversely to both of them.
Cario v. Ofilada (1993): It is the
act/proceeding by which a 3rd person becomes
a party in a suit pending between others.
It is the admission, by leave of court, of a person
not an original party to pending legal proceedings,
by which such person becomes a party thereto for
the protection of some right of interest alleged by
him to be affected by such proceedings.
An intervenor is a party to the action as the
original parties are, and to make his right
effectual he must necessarily have the same
powers as the original parties. He is entitled to
have the issues raised between him and the
original parties tried and determined.
Intervention is never an independent action, but is
ancillary and supplemental to the existing litigation.
Its purpose is to afford one not an original party, yet
having a certain right/interest in the pending case,
the opportunity to appear and be joined so he
could assert or protect such right/interest.
Hence, the final dismissal of the principal action
results into the dismissal of said ancillary action.
WHO MAY INTERVENE [Rule 19, Sec. 1]
One who has a legal interest in the matter in
litigation;
One who has a legal interest in the success of
either of the parties;
One who has an interest against both parties;
One who is so situated as to be adversely
affected by a distribution/disposition of
property in the courts custody.
MEANING OF LEGAL INTEREST
Interest must be of a direct and immediate character
so that the intervenor will either gain or lose by the
direct legal operation of the judgment. The interest
must be actual and material, a concern which is
more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral. [Virra Mall Tenants v.
Virra Mall (2011)]
When the title to the property if declared void by final
judgment, intervention will not revive or reinstate
the movants title derived from the title declared
void. [Firestone Ceramics v. CA (1999)]
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The assignee of a property who assumed
payment of whatever amount may be finally
adjudged against the assignor, may intervene
in a proceeding involving the execution of the
property pursuant to a judgment. [Robles v.
Timario (1962)]
complaint, without the establishment of which
plaintiff could not recover.
PLEADINGS IN INTERVENTION [Rule 19, Sec. 3]
Complaint-in-intervention If intervenor asserts
a claim against either or all of the original parties.

In an action for foreclosure of mortgage, the Answer-in-intervention If intervenor unites

alleged owners of the land sought ot be with the defending party in resisting a claim
foreclosed may intervene. [Roxas v. against the latter.
Dinglasan (1969)]
Answer to complaint-in-intervention [Rule 19,
Note: Notwithstanding the presence of a legal Sec. 4] It must be filed within 15 days from notice
interest, permission to intervene is subject to the of the order admitting the complaint-in-intervention,
sound discretion of the court, the exercise of unless a different period is fixed by the court.
which is limited by considering "whether or not
the intervention will unduly delay or prejudice the Intervention Interpleader
adjudication of the rights of the original parties
and whether or not the intervenors rights may
be fully protected in a separate proceeding. An ancillary action An original action
[Virra Mall Tenants v. Virra Mall (2011)] Proper in any of the four
Presupposes that the
situations mentioned in plaintiff has no interest
REQUISITES FOR INTERVENTION Rule 19 in the subject matter of
HOW INTERVENTION IS DONE the action or has an
By a motion to intervene, with the pleading-in- interest therein, which in
intervention attached. Must also serve copy of whole or in part is not
the pleading-in-intervention on the original disputed by the other
parties. [Rule 19, Sec. 2] parties to the action
There is already a Defendants are being
General rule: Allowance of intervention is defendant among the sued precisely to
discretionary with the court. original parties to the implead them
pending suit
Exception: When the intervenor is an
indispensable party. TIME TO INTERVENE
Intervention is allowed any time before TC
FACTORS CONSIDERED IN ALLOWING INTERVENTION renders judgment. [Rule 19, Sec. 2]
WON intervention will unduly delay or prejudice
the adjudication of the rights of the original REMEDY FOR THE DENIAL OF MOTION TO
parties. INTERVENE
REMEDIES
WON the intervenor's rights may be fully For denial of intervention:
protected in a separate proceeding. Appeal.
Mandamus, if there is GAD.
Carino v Ofilada (1993): The interest must be For improper granting of intervention: Certiorari.
actual and material, direct and immediate; not
simply contingent or expectant.

It must be in the matter in litigation and of such

direct and immediate character that the Subpoena
intervenor will either gain or lose by the direct
legal operation and effect of the judgment. Subpoena is a process issued by court which is
either:
Magsaysay-Labrador v. CA (1989): Interest in the
subject means a direct interest in the cause of action TYPES (AND DEFINITION) OF SUBPOENA
as pleaded and which would put the intervenor in a [Rule 21, Sec. 1]
legal position to litigate a fact alleged in the Subpoena duces tecum
Subpoena ad testificandum

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[Rule 21, Sec.

See Annex B.

BY WHOM ISSUED [Rule 21, Sec. 2]
The court before whom the witness is required
to attend;
The court of the place where the deposition is to
be taken;
The officer/body authorized by law to do so in
connection with investigations conducted by
said officer/body;
Any SC/CA Justice in any case or investigation
pending within the Philippines.
SUBPOENA AD TESTIFICANDUM
Process directed to a person, requiring him to
attend and to testify at the hearing/trial of an action
or at any investigation conducted by competent
authority, or for the taking of his deposition.
SERVICE OF SUBPOENA [Rule 21, Sec. 6]
Same manner as personal or substituted service
of summons.
The original shall be exhibited and a copy
delivered to person on whom it is served,
with tender of fees for one days attendance
and kilometrage.

FORM AND CONTENTS OF SUBPOENA [Rule

21, Sec. 3]
Name of court;
Title of action/investigation;
Directed to a person whose attendance is
required
If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court
prima facie relevant.

Subpoena for depositions [Rule 21, Sec. 5]

Proof of service of a notice to take a deposition
is sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
Issued by the clerk of court of the place in which
the deposition is to be taken.
However, subpoena duces tecum for depositions
cannot be issued without court order.

SUBPOENA DUCES TECUM

Process directed to a person, requiring him to
bring with him any books/documents/things
under his control. (Asked in the 1997 Bar Exam)

SUBPOENA DUCES TECUM DISTINGUISHED FROM

ORDER FOR PRODUCTION OR INSPECTION

Exception: Tender not required if subpoena is
issued by or on behalf of the Republic or an
officer/agency thereof.
For subpoena duces tecum, also tender the
reasonable cost of producing the
books/documents/things demanded.
Service must be made so as to allow the witness
reasonable time for preparation and travel to
the place of attendance
COMPELLING ATTENDANCE
WITNESSES; CONTEMPT
PERSONAL APPEARANCE IN COURT [Rule 21, Sec. 7]
A person present in court before a judicial officer may
be required to testify as if he were in attendance upon
a subpoena issued by such court/officer.
APPLICATION FOR SUBPOENA TO
PRISONER 2]
The judge/officer shall examine and study the
application carefully to determine WON it is
made for a valid purpose.
However, no prisoner sentenced to death,
reclusion perpetua or life imprisonment and
who is confined in a penal institution shall be
brought outside for appearance/attendance in
any court unless authorized by the SC.
REMEDY IN CASE OF WITNESS FAILURE TO ATTEND
Upon proof of service of subpoena and of witness
failure to attend, the court/judge issuing the subpoena
may issue a warrant to the sheriff to arrest the witness
and bring him before the court/officer where his
attendance is required. [Rule 21, Sec. 8]
The cost of warrant and seizure shall be paid by
the witness if the court determines that the failure
to attend was willful and without just excuse.
Such failure shall be deemed a contempt of the
court which issued the subpoena. [Rule 21, Sec. 9]
OF
If subpoena was not issued by a court, the
disobedience shall be punished by applicable
law or ROC.
Exception: Arrest warrant and contempt not
applicable to: [Rule 21, Sec. 10]
A witness who resides more than 100km from his
residence to the place where he is to testify.
A detention prisoner, if there is no permission
from the court in which his case is pending.
QUASHING OF SUBPOENA [Rule 21, Sec. 4]
Upon motion promptly made, at/before the time
specified in the subpoena.
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GROUNDS FOR QUASHING:
Subpoena duces tecum:
It is unreasonable and oppressive;
The relevancy of the books/documents/ things
does not appear;
The person in whose behalf the subpoena is
issued fails to advance the reasonable cost
of production;
Witness fees and kilometrage were not tendered
when subpoena was served.
Subpoena ad testificandum:
That the witness is not bound thereby;
That witness fees and kilometrage were not
tendered when the subpoena was served.
Modes of Discovery
DEPOSITIONS PENDING ACTION;
DEPOSITIONS BEFORE ACTION OR
PENDING APPEAL [Rules 23 and 24]
DEPOSITIONS UNDER RULE 23
Meaning and purpose of deposition
Deposition is chiefly a mode of discovery, the
primary function of which is to supplement
the pleadings for the purpose of disclosing
the real points of dispute between the parties
and affording an adequate factual basis
during the preparation for trial.
The liberty of a party to avail of such modes of
discovery is unrestricted if the matters
inquired into are relevant and not privileged,
and the inquiry is made in good faith and
within the bounds of the law.
Limitations would arise if the examination is
conducted in bad faith; or in such a manner as
to annoy, embarrass or oppress the person
under examination; or when the inquiry touches
upon the irrelevant or encroaches upon the
recognized domains of privilege.
Under certain conditions and for certain limited
purposes, it may be taken even after trial has
commenced and may be used without the
deponent being actually called to the witness
stand. [Jonathan Landoil v Mangudadatu (2006)]
Scope of examination
Unless otherwise provided by the court, the
deponent may be examined regarding any
matter not privileged, which is relevant to the
pending action, whether relating to the claim or
defense of any party
including the existence, description, nature,
custody, condition and location of any books,
documents, or other tangible things and the
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identity of any persons having knowledge of
relevant facts. [Rule 23, sec. 2]
Uses of deposition pending action
Dasmarias Garments,Inc. v. Reyes (1993):
General Rule: A deposition is not generally supposed
to be a substitute for the actual testimony in open
court of a party or witness. If the witness is available
to testify, he should be presented in court to testify. If
available to testify, a partys or witness deposition is
inadmissible in evidence for being hearsay.
Exception: [Rule 23, Section 4]
Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
The deposition of a party or of any one who at
the time of taking the deposition was an
officer, director, or managing agent of a
public or private corporation, partnership, or
association which is a party may be used by
an adverse party for any purpose;
The deposition of a witness, whether or not a
party, may be used by any party for any
purpose if the court finds:
that the witness is dead; or
that the witness resides at a distance more
than one hundred (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; or
that the witness is unable to attend to testify
because of age, sickness, infirmity, or
imprisonment; or
that the party offering the deposition has
been unable to procure the attendance of
the witness by subpoena; or
upon application and notice, that such
exceptional circumstances exist as to make
it desirable, in the interest of justice and with
due regard to the importance of presenting
the testimony of witnesses orally in open
court, to allow the deposition to be used; and
If only part of a deposition is offered in evidence
by a party, the adverse party may require him
to introduce all of it which is relevant to the
part introduced, and any party may introduce
any other parts.
Before whom taken
General Rule: Depositions may be taken before
any judge, notary public, or the person referred
to in section 14 (which refers to any person
authorized to administer oaths designated by the
parties by stipulation).
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Exceptions: In our jurisdiction, depositions in
foreign countries may be taken:
on notice before a secretary of embassy or legation,
consul general, consul, vice consul, or consular
agent of the Republic of the Philippines;
before such person or officer as may be appointed by
commission or under letters rogatory; or
before any person authorized to administer
oaths as stipulated in writing by the parties.
Commission Letters Rogatory
Addressed to whom
Any authority in a A judicial authority in the
foreign country foreign country
authorized therein to
take down depositions
Rules that govern the deposition
Rules laid down by the Rules laid down by such
court issuing the foreign judicial authority
commission
When issued
Preferred over letters Generally resorted to
rogatory since the when there is difficulty or
process is simpler impossibility of obtaining
(generally, no need to the deposition
resort to diplomatic commission (Regalado)
channels unlike in
letters rogatory)
No deposition shall be taken before a person who is:
[Rule 23, sec. 13]
a relative within the sixth degree of
consanguinity or affinity, or
employee or counsel of any of the parties, or
who is a relative within the same degree, or
employee of such counsel; or
who is financially interested in the action.
Procedure
A party desiring to take the deposition of any
person upon oral examination shall give
reasonable notice in writing to every party to the
action stating the time and place for taking the
deposition and the name and address of each
person to be examined. [Rule 23, Sec. 15]
After the notice is served, the court may make
any order for the protection of the parties and
the deponent. [Rule 23, Sec. 16]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
The attendance of the witnesses may be compelled
by the use of subpoenas. [Rule 23, Sec. 1]
The deponent may be examined or cross
examined following the procedures for witnesses
in a trial. He may be asked questions on direct,
cross, re-direct or re-cross. He has the same
rights as a witness and may be impeached like a
court witness because Sections 3 to 18 of Rule
132 apply to deponent. [Rule 23, Sec. 3]
The officer before whom the deposition is
being taken has no authority to rule on
objections interposed during the course of the
deposition although any objections shall be
noted by him upon the deposition. Any
evidence that is objected to shall still be taken
but subject to the objection. [Rule 23, Sec. 17]
When may taking of deposition be terminated or its
scope limited
The court in which the action is pending or the RTC
of the place where the deposition is being taken
by may order the officer conducting the examination to
cease from taking the deposition, or may limit the
scope and manner of taking the deposition
When: At any time during the taking of the
deposition, on the motion or petition of any party
or of the deponent
Ground: that the examination is being
conducted in bad faith or in such a manner as
unreasonably to annoy, embarrass or oppress
the deponent or party [Rule 23, Sec. 18]
If the order made terminates the examination, it
shall be resumed only upon the order of the
court in which the action is pending.
When may objections to errors and
irregularities be made [Rule 23, sec. 29]
Objection When Made
As to notice to Waived, unless written
parties objection is promptly served
upon party giving notice
Deposition officer is Waived, unless made before
disqualified the taking of the deposition
orassoonasthe
disqualification becomes
known or could be discovered
PAGE 58
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

Objection When Made Leave of court [Rule 23, Sec. 1]

Leave of court is NOT required after an answer
has been served.
with reasonable certainty It is required before the service of an answer but
Lack of relevance, NOT waived by failure to after jurisdiction has been acquired over the
materiality and make them before or during defendant or over the property subject of the
competence of the the taking of the deposition, action.
deposition to the unless the ground for the Only instance when one always needs leave of
action objection is one which might court before taking depositions: Where the
have been obviated or deponent is in jail.
removed if presented at that
time WRITTEN INTERROGATORIES UNDER RULE 23
Error in the manner Waived, unless reasonable A deposition need not be conducted through an
of taking the objection is made at the oral examination. It may be conducted
deposition taking of the deposition through written interrogatories which shall be
Error in the form of Waived, unless served in served upon every other party.
written writing upon the party The party served may also serve cross-
interrogatories propounding them within the interrogatories upon the party proposing to take
time allowed for serving the deposition within 10 days from service of
succeeding cross or other the written interrogatories. The latter may, within
interrogatories and within 3 5 days serve re-direct interrogatories and within
days after service of the last 3 days the other party may serve re-cross
interrogatories interrogatories [Rule 23, Sec. 25]
Error in the manner Waived, unless a motion to Copies of all these interrogatories shall be
of preparing the suppress the deposition or delivered to the officer before whom the
deposition some part thereof is made deposition is taken and who shall take the
with reasonable promptness responses and prepare the record. [Rule 23,
Sec. 26]
after such defect is, or with
reasonable diligence might
have been, ascertained People v. Hubert Webb (1999): DEPOSITION, WHEN
AVAILABLE IN CRIMINAL CASES: A deposition, in
Other rules keeping with its nature as a mode of discovery, should be
Effect of substitution of parties [Rule 23, Sec. 5] taken BEFORE AND NOT DURING TRIAL.
Substitution of parties does not affect the right to
use depositions previously taken; In fact, rules on criminal practice - particularly on
and, when an action has been dismissed and the defense of alibi, which is respondents main
another action involving the same subject is defense in the criminal proceedings against him in
afterward brought between the same parties or the court below - states that when a person intends
their representatives or successors in interest, to rely on such a defense, that person must move
all depositions lawfully taken and duly filed in the for the taking of the deposition of his witnesses
former action MAY BE USED IN THE LATTER AS within the time provided for filing a pre-trial motion.
IF ORIGINALLY TAKEN THEREFOR.
The use of discovery procedure in criminal cases is
Effect of taking deposition [Rule 23, Sec. 7] directed to the sound discretion of the trial judge.
A party shall not be deemed to make a person his The deposition taking cannot be based nor can it
own witness for any purpose by taking his deposition. be denied on flimsy reasons. Discretion has to be
exercised in a reasonable manner and in
Effect of using deposition [Rule 23, Sec. 8] consonance with the spirit of the law.
General Rule: Introduction in evidence of
deposition or any part thereof for any purpose Dasmarias Garments v. Reyes (1993): Any
makes the deponent the witness of the party deposition offered to prove the facts therein at the trial
introducing the deposition. of the case, in lieu of actual testimony of the deponent
in court, may be opposed and excluded for being
Exception: if the purpose is to contradict or hearsay save in specific instances under the Rules.
impeach the deponent.

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DEPOSITIONS BEFORE ACTION UNDER RULE 24
Purpose
To perpetuate the testimony of witnesses for
probable use in the event of further proceedings
in said court.
Procedure
FILE A VERIFIED PETITION IN THE COURT
OF THE PLACE OF THE RESIDENCE OF
ANY EXPECTED ADVERSE PARTY.
The petition shall be entitled in the name of
the petitioner and shall show:
that 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;
the subject matter of the expected action
and his interest therein;
the facts which he desires to establish by
the proposed testimony and his reasons
for desiring to perpetuate it;
the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
the names and addresses of the persons to
be examined and the substance of the
testimony which 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.
NOTICE AND SERVICE to 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.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
ORDER AND EXAMINATION: If the court is
satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination
and whether the depositions shall be taken upon
oral examination or written interrogatories.
Note: Procedure for taking deposition by oral
examination or written interrogatories will be
governed by Rule 23 on depositions de bene esse.
DEPOSITIONS PENDING APPEAL UNDER RULE 24
J. Regalado believes that the following procedure
is applicable to civil and criminal cases.
Procedure:
DURING THE PENDENCY OF AN APPEAL,
the court in which the judgment was rendered
may allow the taking of depositions of
witnesses to perpetuate their testimony in the
event of further proceedings in the said court.
The party who desires to perpetuate the
testimony may make a motion in the said court
for leave to take the depositions, upon the same
notice and service thereof as if the action was
pending therein. The motion shall state:
the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
the reason for perpetuating their testimony.
ORDER ALLOWING THE DEPOSITION: 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 deposition to be taken.
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES [Rule 25]
PURPOSE
This mode of discovery is availed of by the party
to the action for the purpose of eliciting material
and relevant facts from any of the adverse party.
[Rule 25, Sec. 1]
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PROCEDURE
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, 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.
Note: Interrogatories under RULE 25 are served
directly upon the adverse party unlike written
interrogatories under RULE 23 which are delivered to
the officer before whom the deposition is to be taken.
ANSWER
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. [Rule 25, Sec. 2]
EFFECT OF OBJECTIONS TO INTERROGATORIES
When objections to any interrogatories is
presented to the court within 10 days after
service thereof, with notice as in case of a
motion, the answer shall be deferred until the
objections are resolved [Rule 25, Sec. 3]
NUMBER OF INTERROGATORIES
No party may, without leave of court, serve more
than one set of interrogatories to be answered
by the same party. [Rule 23, Sec. 4]
SCOPE OF INTERROGATORIES
Any matter
not privileged, and
relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
knowledge of relevant facts.
USE OF INTERROGATORIES
Same as Rule 23, Sec. 4 mutatis mutandis.
PAGE 61
BAR OPERATIONS COMMISSION
FAILURE TO FILE WRITTEN INTERROGATORIES
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, UNLESS allowed by the court for
good cause shown and to prevent failure of justice.
CONSEQUENCES OF REFUSAL TO ANSWER
The party serving the interrogatories may apply to
the court for an order to compel an answer.
If court 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
ATTORNEY'S FEES [Rule 29, Sec. 1].
Refusal to comply with an order of the court to
compel an answer may be considered
CONTEMPT of that court [Rule 29, Sec. 2]
The subject of discovery shall be DEEMED ADMITTED
OR ESTABLISHED [Rule 29 Sec. 3(a)].
The disobedient party shall be prohibited from
introducing CONTRADICTORY EVIDENCE
[Rule 29, Sec. 3(b)]
STRIKING OUT OF PLEADINGS OR PARTS
THEREOF [Rule 29, Sec. 3(c)]
STAYING FURTHER PROCEEDINGS UNTIL THE
ORDER IS OBEYED [Rule 29, Sec. 3(c)]
DISMISSING THE ACTION OR PROCEEDING OR
ANY PART THEREOF [Rule 29, Sec. 3(c)]
RENDERING A JUDGMENT BY DEFAULT
AGAINST THE DISOBEDIENT PARTY; AND
[Rule 29, Sec. 3(c)]
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 [Rule 29, Sec. 3(c)]
REQUEST FOR ADMISSION [Rule 26]
PURPOSE
To allow one party to request the adverse in
writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial.
To avoid unnecessary inconvenience to the parties in
going through the rigors of proof, before the trial, a
party may request the other to:
admit the genuineness of any material and
relevant document described in and
exhibited with the request; or
admit the truth of any material and relevant
matter of fact set forth in the request [Rule
26, Sec. 1]
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WHEN MAY REQUEST BE MADE good cause shown and

At any time after issues have been joined. to prevent a failure of justice,
a party who fails to file and serve a request for admission
Duque v. CA (2002): The request for admission on the adverse party of material and relevant facts at
MUST BE SERVED ON THE PARTY and NOT issue which ARE, OR OUGHT TO BE,
ON THE COUNSEL. This is an exception to the WITHIN THE PERSONAL KNOWLEDGE OF
general rule that notices shall be served upon THE LATTER [Rule 26, Sec. 5]
counsel and not upon the party.
PRODUCTION OR INSPECTION OF
IMPLIED ADMISSION BY ADVERSE PARTY
DOCUMENTS OR THINGS [Rule 27]
EACH OF THE MATTERS OF WHICH AN
PROCEDURE
ADMISSION IS REQUESTED SHALL BE
DEEMED ADMITTED unless, A motion must be filed by the party seeking the
within a period designated in the request, which production or inspection of documents and
shall not be less than 15 days after service things and the motion must show good cause
thereof, or within such further time as the supporting the same. [Rule 27, Sec. 1]
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 The court in which the action is pending shall
denying specifically the matters of which an issue an order:
admission is requested, or which shall specify the time, place and
setting forth in detail the reasons why he manner of making the inspection and
cannot truthfully either admit or deny those taking copies and photographs, and
matters. which may prescribe such terms and
conditions as are just. [Rule 27, Sec. 1]
DEFERMENT OF COMPLIANCE
To avoid the implied admission, the party requested
WHAT THE COURT MAY ORDER
may have the compliance of the filing and service of
To PRODUCE and PERMIT THE INSPECTION
the sworn statement be deferred by filing with court
and copying or photographing, by or on behalf
objections to the request for admission.
of the moving party, of any documents, papers,
books, accounts, letters, photographs, objects
Compliance shall be deferred until such objections
or tangible things, not privileged, which
are resolved by the court. [Rule 26, Sec. 2 par. 2]
constitute or contain evidence material to any
matter involved in the action and which are in
EFFECT OF ADMISSION
the possession, custody or control of the party
Any admission made by a party pursuant to such
to whom the order is addressed.
request is for the purpose of the pending action only
To PERMIT ENTRY upon designated land or other
and shall not constitute an admission by him for any
property in the position or control of the party to
other purpose nor may the same be used against him
whom the order is addressed for the purpose of
in any other proceeding. [Rule 26, Sec. 3]
inspecting, measuring, surveying, or
photographing the property or any
WITHDRAWAL
designated relevant object or operation
The court may allow the party making an
thereon. [Rule 27, Sec. 1]
admission, whether express or implied under the
Rule to withdraw or amend it upon such terms
Note: This mode of discovery does not mean that the
as may be just.
person who is required to produce the document or
the thing will be deprived of its possession even
The admitting party must file a motion to be
temporarily. It is enough that the requesting party be
relieved of the effects of his admissions.
given the opportunity to inspect or copy or photograph
the document or take a look at the thing. (Regalado)
EFFECT OF FAILURE TO FILE AND SERVE REQUEST
FOR ADMISSION
(Asked in the 2002 Bar Exam)
General rule: The party who fails to file a request
shall not be permitted to present evidence on such
facts.

Exception: Unless otherwise allowed by the court for:

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PHYSICAL AND MENTAL EXAMINATION OF
PERSONS [Rule 28]
MOTION REQUESTING EXAMINATION
Requisites
The physical or mental condition of a party (NOT
A WITNESS!) is in controversy
Motion must be filed showing good cause
Notice given to the party to be examined and to
all other parties
Notice must specify the time, place, manner,
conditions and scope of examination
Notice must also specify person/s who will make
the examination
COURT TO ISSUE THE ORDER FOR EXAMINATION IN
ITS DISCRETION.
REPORT OF FINDINGS
If requested by the party examined, the party
causing the examination to be made shall
deliver to him a copy of a detailed written
report of the examining physician setting out
his findings and conclusions.
After such request and delivery, 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 or thereafter made,
of the same mental or physical condition.
If the party examined refuses to deliver such
report, the court on motion and notice may
make an order requiring delivery on such
terms as are just
If it is the physician who fails or refuses to make
such a report the court may exclude his
testimony if offered at the trial. [Rule 28, Sec. 3]
WAIVER OR PRIVILEGE
By requesting and obtaining a report of the
examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him in respect of the
same mental or physical examination.
PHYSICIAN-PATIENT PRIVILEGE
Inapplicable because the results of the
examination are intended to be made public.
Such examination is not necessary to treat or cure the
patient but to assess the extent of injury or to
evaluate his physic al or mental condition.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
CONSEQUENCES OF REFUSAL TO COMPLY
WITH MODES OF DISCOVERY
See Annex C.
Trial
TRIAL, DEFINED
A trial is the judicial process of investigating and
determining the legal controversies, starting with the
production of evidence by the plaintiff and ending with
his closing arguments [Acosta v. People (1962)].
A hearing is a broader term. It is not confined to
the trial and presentation of the evidence
because it actually embraces several stages in
the litigation. It includes the pre-trial and the
determination of granting or denying a motion.
[Trocio v. Labayo (1973)]
NOTICE OF TRIAL [Rule 30, Sec. 1]
Upon entry of a case in the trial calendar, the
clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date.
ADJOURNMENTS AND POSTPONEMENTS
[Rule 30, Sec. 2]
General rule: The court may adjourn a trial from day
to day to any stated time, as the expeditious and
convenient transaction of business may require.
Exception: Court may not adjourn for longer than
1 month for each adjournment, nor more than 3
months in all.
Exception to exception: When authorized in
writing by the SC Court Administrator.
Note: Postponement is not a matter of right. It is
addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela (1989)]
REQUISITES OF MOTION TO POSTPONE TRIAL
for absence of evidence
for illness of party or counsel
Ground for
postponement Requisite for motion to
postpone of trial
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Ground for
postponement Requisite for motion to postpone
of trial
For absence of Affidavit showing:
evidence [Rule (a) The materiality/relevancy of
30, Sec. 3] such evidence;
(b) That duediligence has been
used to procure the evidence
But if the adverse party admits
the facts to be given in evidence,
trial shall not be postponed even
if he objects or reserves the right
to object to their admissibility.
For illness of Affidavit or sworn certification:
party/counsel (a) That the presence of such
[Rule 30, Sec. 4] party/counsel at the trial is
indispensable;
(b) That the character of his
illness is such as to render his
non-attendance excusable.
SUBPOENA
See separate part for Subpoena BUT please take note
that Subpoenas are issued within the context of a Trial
and taking depositions under Modes of Discovery.
AGREED STATEMENT OF FACTS [Rule 30, Sec. 6]
Parties may agree in writing upon the facts
involved in the litigation, and submit the case
for judgment without introduction of evidence.
If the parties agree to only some of the facts in
issue, trial shall be held as to the disputed facts
in such order as the court shall prescribe.
ORDER OF TRIAL; REVERSAL OF ORDER
CONDUCT OF TRIAL [Rule 30, Sec. 5]
General rule: Trial shall be limited to the issues
stated in the pre-trial order.
Exception:
Provisions on separate trials in Rule 31, Sec. 2
When for special reasons the court directs
otherwise.
GENERAL ORDER OF TRIAL
Plaintiff shall adduce evidence in support of his
claim;
Defendant shall adduce evidence in support of
his defense, counterclaim, cross-claim and 3rd-
party complaint;
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
3rd-party defendant (if any) shall adduce
evidence of his defense, counterclaim, cross-
claim and 4th-party complaint;
4th-party (and so forth) shall adduce evidence
of the material facts pleaded by them;
Parties whom any counterclaim or cross-claim has
been pleaded, shall adduce evidence in support of
their defense, in the order prescribed by the court.
Parties may respectively adduce rebutting
evidence only.
Exception: When the court permits them to
adduce evidence upon their original case, for
good reasons and in furtherance of justice.
Upon admission of evidence, the case shall be
deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.
If several defendants or 3rd-party defendants
having separate defenses appear by different
counsel, the court shall determine the relative
order of presentation of their evidence.
CONSOLIDATION OR SEVERANCE OF
HEARING OR TRIAL
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1]
When actions involving common question of
law/fact are pending before the court, it may:
Order a joint hearing/trial of any/all the matters
in issue in the actions;
Order all the actions consolidated;
Make such orders concerning the proceedings as
to avoid unnecessary costs or delay.
Where a case has been partially tried before one
judge, the consolidation of the same with another
related case pending before another judge who
had no opportunity to observe the demeanor of the
witness during trial makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]
SEVERANCE OF TRIAL [Rule 31, Sec. 2]
The court may issue separate trials for
convenience or to avoid prejudice:
Of any claim, cross-claim, counterclaim or 3rd-
party complaint;
PAGE 64
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Of any separate issue;
Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues.
STATEMENT OF JUDGE [Rule 30, Sec. 7]
During the hearing/trial of the case, any
statement made by the judge shall be made of
record in the TSN if made with reference to the
case/parties/witnesses/ counsels.
SUSPENSION OF ACTIONS [Rule 30, Sec. 8]
Governed by the CC provisions
DELEGATION OF RECEPTION OF EVIDENCE
[Rule 30, Sec. 9]
General rule: The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties.
Exception: The court may delegate the reception
of evidence to its clerk of court who is a member
of the bar in:
Default hearings;
Ex parte hearings;
Cases where parties agree in writing.
However, the clerk of court has no power to rule on
objections to any question/admission of exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within
10 days from termination of the hearing.
TRIAL BY COMMISSIONERS
COMMISSIONER Includes a referee, an
auditor or an examiner. [Rule 32, Sec. 1]
KINDS OF TRIAL BY COMMISSIONER [Rule 32, Secs. 1 & 2]
Reference by consent of both parties.
Reference ordered on motion when:
Trial of an issue of fact requires the examination
of a long account on either side
Taking of an account is necessary for the
courts information before judgment, or for
carrying judgment/order into effect.
A question of fact, other than upon the
pleadings, arises in any stage of a case or
for carrying a judgment/order into effect.
REFERENCE BY CONSENT OR ORDERED ON MOTION
Order of reference [Rule 32, Sec. 2 to 12]
ORDER OF REFERENCE: When a reference is
made, the clerk shall furnish the commissioner
with a copy of the order of reference.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
MEETING: The commissioner shall set a
time/place for the first meeting and shall notify
parties/counsels.
REPORT: Upon completion of the trial/hearing,
the commissioner shall file a written report with
the court.
NOTICE: The clerk shall notify parties of the
filing of the report. The parties have 10 days to
object to the reports findings.
HEARING: After the 10 days, the report shall be
set for hearing. The court may issue an order
adopting/modifying/rejecting the report or part of it.
When parties stipulate that the Commissioner's
findings of fact are final, only questions of law
shall thereafter be considered.
POWERS OF THE COMMISSIONER [Rule 32, Sec. 3]
When a reference is made, the clerk shall
forthwith furnish the commissioner with a copy of
the order of reference. The order may:
Specify/limit the commissioners power
Direct him to report only upon particular issues,
to do/perform particular acts, or direct him to
receive and report evidence only
May fix the date for beginning and closing the
hearings and for the filing of his report.
Powers of the Commissioner:
Regulate the proceedings in every hearing
before him [subject to other specifications &
limitations in the order]
Power to do all acts and take all measures necessary
or proper for the efficient performance of his duties
under the order [subject to other specifications &
limitations in the order]
He may issue subpoenas and subpoenas duces
tecum, swear witnesses.
He may rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference.
The trial or hearing before him shall proceed in
all respects as it would if held before the court.
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT
Report of commissioner [Rule 32, Sec. 9]
Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file
with the court his report in writing upon the matters
submitted to him by the order of reference.
PAGE 65
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When his powers are not specified or limited, he Grant of demurrer Denial of demurrer
shall set forth his findings of fact and
conclusions of law in his report.
The case shall be The defendant shall have
He shall attach thereto all exhibits, affidavits, dismissed the right to present
depositions, papers and the transcript, if any, of evidence
the testimonial evidence presented before him. The court should set the

Notice to parties of the filing of report [Rule date for the reception of
32, Sec. 10] the defendants
Upon the filing of the report, the parties shall be evidence-in-chief
notified by the clerk, and they shall be allowed 10 [Northwest Airlines v. CA
days within which to signify grounds of objections (1998)]
to the findings of the report, if they so desire. Plaintiff's remedy would xxx
be to appeal.
Objections to the report based upon grounds which However, if the order
were available to the parties during the
proceedings before the commissioner, other than granting the demurrer is
objections to the findings and conclusions therein, reversed on appeal, the
set forth, shall not be considered by the court defendant loses his right
unless they were made before the commissioner. to present evidence.
[Rule 33, Sec 1; Republic
Hearing on the report [Rule 32, Sec. 11] v. Tuvera (2007)]
Upon the expiration of the 10-day period in Rule The appellate court
32, Sec. 10, the report shall be set for HEARING.
should render judgment
After which the court shall issue an ORDER: on the basis of the
Adopting (in whole or in part), evidence submitted by
Modifying (in whole or in part) the plaintiff.
Rejecting the report (in whole or in part), [Radiowealth Finance v.
Recommitting the report with instructions, or Del Rosario (2000)]
Requiring the parties to present further evidence Equivalent to judgment An interlocutory order
before the commissioner or the court. (i.e. based on the merits and not appealable.
of the evidence However, it may be the
presented so far) subject of a petition for
certiorari for GAD under
Demurrer to Evidence Rule 65 [Katigbak v.
Sandiganbayan (2003)]
GROUND
DEFINITION: A species of MTD that may be invoked MTD Demurrer
based on insufficiency of evidence (i.e. upon the
facts and the law the plaintiff has shown no right to
relief). [Rule 33, Sec. 1] When to File
Before the service and After the plaintiff rests
It is invoked after the plaintiff has presented all filing of the answer his case
the evidence available to him. Ground
Those enumerated in Only ground: The
EFFECT OF DENIAL; EFFECT OF GRANT Rule 16 plaintiff has shown no
Grant of demurrer Denial of demurrer right to relief (i.e.
evidence is insufficient)
Effect
If a MTD is granted,
the complaint is
likewise dismissed.
But, depending on the
ground, the complaint
may be re-filed

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Parties must have been given an opportunity to

MTD Demurrer adduce evidence in their behalf;
Evidence must have been considered by the
tribunal in deciding the case; [Acosta v.
If the MTD is denied, COMELEC (1998)]
the defendant shall file Judgment must be in writing, personally and
his responsive directly prepared by the judge;
pleading Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan (2004)]
WAIVER OF RIGHT TO PRESENT EVIDENCE Judgment must state clearly the facts and the
If the order granting the demurrer is reversed on appeal, law upon which the decision is based, signed
the defendant loses his right to present evidence. [Rule by the judge and filed with the clerk of court.
33, Sec .1; Republic v. Tuvera (2007)] [Rule 35, Sec. 1]

DEMURRER TO EVIDENCE IN A CIVIL CASE V. A decision need not be a complete recital of the
DEMURRER TO EVIDENCE IN A CRIMINAL CASE evidence presented. So long as the factual and
legal bases are distinctly and clearly set forth,
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND the judgment is valid. [People v. Baring (2002)]
CRIMINAL CASES (Asked in the 2003 and 2007
Bar Exams) KINDS OF JUDGMENT
Demurrer in civil cases Demurrer in criminal JUDGMENT UPON COMPROMISE - It is one
cases conferred on the basis of a compromise
Defendant need not ask May be filed with or agreement entered into between the parties.
for leave of court without leave of court. It is immediately executory in the absence of
Note: Leave of court is a motion to set aside on the ground of FAME.

necessary so that the JUDGMENT UPON CONFESSION - It is one

accused can present his rendered by the court when a party expressly
evidence in case the agrees to the other partys claim or acknowledges
demurrer is denied [Rule the validity of the claim against him.
119, Sec. 23]
If the demurrer is The order of dismissal is Judgment upon Judgment by confession
granted, the order of not appealable because
dismissal is appealable it will constitute double compromise
jeopardy
If a demurrer is denied, The accused may adduce The provisions and terms An affirmative and
the defendant may his evidence only if the are settled by the parties voluntary act of the
proceed to present his demurrer is field with to the action. The defendant himself. The
evidence leave of court judgment is entered in court exercises a certain
the record by consent of amount of supervision
the court. over the entry of
judgment.
Judgments and Final Orders
Kinds of judgment by confession:
JUDGMENT JUDGMENT BY COGNOVIT ACTIONEM After
The final ruling by a court of competent service, the defendant, instead of entering a
jurisdiction regarding the rights and obligations plea, acknowledged and confessed that the
of the parties or other matters submitted to it in plaintiffs cause of action was just and rightful.
an action/proceeding [Macahilig v. Heirs of JUDGMENT BY CONFESSION RELICTA
Magalit (2000)] VERIFICATIONE After pleading and before trial,
the defendant both: (a) confessed the plaintiffs
REQUISITES OF A VALID JUDGMENT [Rule 36, Sec. 1; cause of action and (b) withdrew his plea or other
Art. 8, Sec. 14, 1987 Constitution] [AJOEWS] allegations, whereupon judgment was entered
Court/tribunal must be with authority to hear and against him without proceeding to trial.
determine the matter before it;
Court must have jurisdiction over the parties and Remedy against judgment by consent, confession
the subject matter; or compromise is to first file a motion to set it

PAGE 67
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aside; if denied, file the appropriate petition
under Rule 65.
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. A judgment is on the merits
when it amounts to a legal declaration of the
respective rights and duties of the parties,
based upon the disclosed facts
CLARIFICATORY JUDGMENT - It is rendered to
clarify an ambiguous judgment or one
difficult to comply with.
JUDGMENT NUNC PRO TUNC - Literally, now
for then. It is a judgment intended to enter
into the record the acts which had already
been done, but which do not appear in the
records. [Lichauco v. Tan Pho (1923)]
JUDGMENT SIN PERJUICIO - It may refer to a
dismissal of a case without prejudice to it
being re-filed.
CONDITIONAL JUDGMENT - It is one the
effectivity of which depends upon the
occurrence or non-occurrence of an event.
Such a judgment is generally void because
of the absence of a disposition [Cu-Unjieng
v. Mabalacat Sugar Co. (1940)]
SEVERAL JUDGMENT - It is one rendered by a
court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, Sec. 4] It
is proper when the liability of each party is
clearly separate and distinct from his co-
parties such that the claims against each of
them could have been the subject of separate
suits, and the judgment for or against one of
them will not necessarily affect the other.
SEPARATE JUDGMENT - 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 that is the subject matter of said
claim. [Rule 36, Sec. 5] It is proper when more
than one claim for relief is presented in an
action for the determination as to the issues
material to the claim has been made.
The judgment shall terminate the action with
respect to the claims disposed of, and shall
proceed as to the remaining claims. The court
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
may stay its enforcement until rendition of
subsequent judgments, and may prescribe
conditions to secure the judgments benefits.
Judgment may be given for/against one or
more of several plaintiffs/defendants. The
court may require the parties on each side to
file adversary pleadings as between
themselves. [Rule 36, Sec. 3]
If judgment is rendered against 2 or more
persons sued as an entity without juridical
personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec. 6]
PROMULGATION - The process by which a
decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel.
MEMORANDUM DECISION - A decision of the
appellate court which adopts the findings
and conclusions of the TC.
A judgment is considered rendered upon the
filing of the signed decision.
This includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.
JUDGMENT WITHOUT TRIAL
WHEN TRIAL IS NOT NECESSARY PSADSA (Asked
in the 1996 Bar Exams) [Riano]
The pleadings of the parties tender no issue at all
judgment on the pleadings may be directed
by the court [Rule 34]
There is actually no genuine issue from the
pleadings, affidavits, depositions and other
papers court may render a summary
judgment [Rule 35]
Parties entered into a compromise or an amicable
settlement either during the pre-trial or during
the trial [Rule 18; Art. 2028 Civil Code]
Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7,
Sec. 5 (last par.)]
Case falls under the Rules on Summary
Procedure
Agreed statement of facts [Rule 30, Sec. 6]
CONTENTS OF A JUDGMENT
PARTS OF A JUDGMENT
Body, Ratio decidendi, or Opinion of the court
It contains the findings of facts and
conclusions of law;
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Fallo, or Disposition of the case It is the
dispositive part of the judgment that actually
settles and declares the rights and
obligations of the parties, finally, definitively,
and authoritatively [Light Rail Transit
Authority v. CA] (2004); The part of the
judgment that is subject to execution [Riano]
Signature of the judge.
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE
COURT (ASKED IN THE 2006 BAR EXAM)
A judgment (or FALLO) must be distinguished
from an opinion.
The latter is the informal expression of the views
of the court and cannot prevail against its
final order or decision.
While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
So there is a distinction between the findings
and conclusions of a court and its judgment.
While they may constitute its decision and
amount to a rendition of a judgment they are
not the judgment itself.
They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman
on Judgments, Vol. I, 5th Edition, page 6,
quoted in Casilan v. Salcedo (1969)]
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND
BODY OF THE DECISION
Rule: Where there is a conflict between the fallo
and the body of the decision, the fallo controls.
Qualification: This rule applies only when the
dispositive part is definite, clear, and unequivocal
[Union Bank v. Pacific Equipment Corporation (2008)]
Basis: The fallo is the final order. The opinion in
the body is merely a statement ordering nothing
[Poland Industrial Limited v. National
Development Company (2005)]
JUDGMENT ON THE PLEADINGS [Rule 34]
(Asked in the 1999 and 2005 Bar Exams)
GROUNDS:
If the answer either
Fails to tender an issue;
Note: An answer fails to tender an issue due
to either:
General denial of the material allegations of
the complaint;
Insufficient denial of the material allegations
of the compliant.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Admits the material allegations of the adverse
partys pleading.
CANNOT BE RENDERED MOTU PROPRIO
A judgment on the pleadings can be done only upon
MOTION to that effect filed by the appropriate party. It
cannot be rendered by the court motu proprio.
Exception: If at pre-trial the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio. [Rule 18, Sec. 2(g)]
WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY
Declaration of nullity of marriage;
Annulment of marriage;
Legal separation.
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must
always be proved
EFFECTS
By moving for judgment on the pleadings, the
plaintiff waives his claim for unliquidated
damages (because claims for such damages
must be alleged and proved).
One who prays for the judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party
an opportunity to introduce evidence must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment upon those allegations taken
together with such of his own as are admitted in
the pleadings. [Falcasantos v. How Suy Ching
(1952)]
SUMMARY JUDGMENTS [Rule 35] (Asked in
the 1986, 1989, 1996 and 1999 Bar Exams)
DEFINITION, NATURE
A judgment granted by the court for the prompt
disposition of civil actions, if it clearly appears (after
the issues had been joined and on the basis of the
pleadings and papers filed) that there exists no
genuine issue/controversy as to any material fact,
except as to the amount of damages. [Ley
Construction v. Union Bank (2000); Agbada v Inter-
Urban Developers (2002); Raboca v. Velez (2000)]
Also called accelerated judgment.
GENUINE ISSUE
An issue of fact which calls for the presentation of
evidence; as distinguished from an issue which
is sham, fictitious, contrived and patently
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insubstantial so as not to constitute a
genuine issue for trial.
When the facts as pleaded appear uncontested
or undisputed, then there is no real/genuine
issue as to the facts.
The TC cannot motu propio issue a summary
judgment. A party must move for summary
judgment. [Riano]
PROCEDURE [Rule 35, Sec. 3]
Movant files a motion for summary judgment with
supporting affidavits, depositions or admission
Service to the adverse party at least 10 days
the hearing
Adverse party may serve opposing affidavits,
depositions or admissions at least 3 days
before the hearing
Hearing Court shall determine if a genuine issue
as to any material fact exists and if the movant is
entitled to a summary judgment as a matter of law
Judgment
FOR THE CLAIMANT [Rule 35, Sec. 1]
FOR THE DEFENDANT [Rule 35, Sec. 2]
Who may file the When
motion
Claimant May file the motion only after
the answer has been served
Defendant May file the motion any time
Filing of a motion for summary judgment does
not interrupt the running of the period for filing
an answer. Hence, the movant must also file a
Motion for Extension of Time to File Answer.
Bases of summary judgment: When, upon the
following, no genuine issue as to any material
fact exists:
Affidavits made on personal knowledge;
Depositions of the adverse or a 3rd party; (Rule
23)
Admissions of the adverse party; (Rule 26)
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BAR OPERATIONS COMMISSION
(d) Answers to interrogatories. (Rule 25)
WHEN THE CASE NOT FULLY ADJUDICATED
Partial summary judgment (Asked in the 2004
Bar Exam)
Applies when for some reason there can be no
full summary judgment. Trial should deal only
with the facts not yet specified or established.
Duty of Court [Rule 35, Sec. 4]
Ascertain what material facts exist without
substantial controversy and what are actually
and in good faith controverted based on:
An examination of the pleadings and
evidence before it
Interrogation of the counsel
Make an order specifying the facts and the
extent of the amount of damages that appear
without substantial controversy
Direct further proceedings as are just
Conduct trial on the controverted facts
accordingly
Effect
A partial summary judgment is not a final judgment,
but merely a pre-trial adjudication that said issues
in the case shall be deemed established for the
trial of the case. [Guevarra v. CA (1983)]
AFFIDAVITS AND ATTACHMENTS
Form of affidavits and supporting papers
[Rule 35, Sec. 5]
Made on personal knowledge
Shall set forth such facts as would be admissible
in evidence
Shall show affirmatively that the affiant is
competent to testify to the matters stated
therein.
Attachments [Rule 35, Sec. 5]
Certified true copies of all papers or parts
thereof referred to in the affidavit shall be
attached thereto OR served therewith.
Affidavits in bad faith [Rule 35, Sec. 5]
Definition Affidavits presented under this Rule
which appear to the court at any time as presented
in bad faith or solely for the purpose of delay
Effects:
Court shall order the offending party or counsel to
pay the other party amount of reasonable
expenses which the filing of the affidavits
caused him to incur, including attorneys fees
Court may adjudge the offending party or
counsel guilty of contempt, after hearing
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[1987

[Rule 36, Sec.

the material
allegations
Available to Generally Available to the
both plaintiff available only plaintiff alone
JUDGMENT ON THE PLEADINGS VERSUS and defendant to the
SUMMARY JUDGMENTS plaintiff,
Summary Judgment on Judgment by unless the
judgment the pleadings default defendant
Based on the Based solely Based on the presents a
pleadings, upon the complaint and counterclaim
depositions, pleadings evidence, if court 10-day notice 3-day notice 3-day notice rule
admissions requires its required required applies
and affidavits presentation May be On the merits On the merits
There is no The answer No issues as no interlocutory or
genuine issue fails to tender answer is filed by on the merits
between the an issue or the defending Usually Available in Available in any
parties there is an party available in any action, action, except
admission of
actions to except annulment of
recover a debt, annulment of marriage or legal
or for a marriage or separation cases
liquidated sum legal
of money, or separation
for declaratory cases PERIOD WITHIN WHICH DECISION IS TO BE
relief RENDERED Constitution, Art. VIII, Sec. 15]
All cases filed must be decided or resolved by
RENDITION OF JUDGMENTS AND FINAL the Supreme Court within 24 months from the
ORDERS FORM OF JUDGMENT [Rule 36, Sec. 1] date of their submission for decision.
In writing Unless reduced by the SC, within 12 months for
Personally and directly prepared by the judge lower collegiate courts and within 3 months for
Stating clearly & distinctly the facts and the law all other lower courts.
on which it is based A case is deemed submitted for resolution upon
Signed by the judged the filing of the last pleading, brief or memorandum
Filed with the clerk of court. required by the Rules of Court or by the court.

DEFINITION OF RENDITION OF JUDGMENT An extension of the period may be set by the SC

It is the filing of the judgment with the clerk of
court. It is not the pronouncement of the judgment
in open court that constitutes the rendition. 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 (1962)]
upon request by the judge concerned on
account of heavy caseload or by other
reasonable excuse [Arap v Mustafa (2002)]
INTERPRETATION OF THE JUDGMENT
Where the judgment is difficult to execute because
of ambiguity in its terms, the remedy of the party is
to file a motion for clarificatory judgment and not to
assail the judgment as void. [Poland Industrial
Limited v National Development Company (2005)]

ENTRY OF JUDGMENT AND FINAL ORDER

DEFINITION OF ENTRY OF JUDGMENT
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 after the same has become
final and executory. [Riano]

Rendition of judgment Entry of judgment

Filing of the judgment

with the clerk of court Act of clerk of court in
entering the dispositive
portion of the judgment
in the book of entries of
judgment

ENTRY OF JUDGMENTS AND FINAL

ORDERS 2]
If there is no appeal/MNT/MFR filed within the
prescribed periods, the clerk of court shall enter
the judgment or final order in the book of entries
of judgments.

Date of finality of the judgment = Date of its

entry in the book

Note: the periods for filing the following pleadings

are reckoned from the date of entry of judgment
Execution of a judgment by motion (5 years from
entry) [Rule 39, Sec. 6]

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(Asked in the 2008 Bar

Petition for relief (as one of its periods, not more Rule 65. It does not apply to cases that fall
than 6 months from entry of the judgment or under Summary Procedure.
final order) [Rule 38, Sec. 3]
GROUNDS
The record: Motion for New Trial
Shall contain the judgments dispositive part Appeal
Shall be signed by the clerk of court with a
certificate that the judgment has become final MOTION FOR NEW TRIAL OR
and executory. RECONSIDERATION
MOTION FOR RECONSIDERATION
AMENDMENTS TO JUDGMENT A motion for reconsideration under Rule 37 is
Exams) directed against a judgment or final order. It is not
The power to amend judgments is inherent to the the motion for reconsideration of interlocutory
court before judgment becomes final and executory. order, which often precedes a petition for certiorari
under
General rule: The court cannot amend the
judgment once it has become final and executory.

Exception:
To make corrections of clerical errors, not
substantial amendments, as by an
amendment non pro tunc;
To clarify an ambiguity which is borne out by and
justifiable in the context of the decision;
In judgments for support, which can always be
amended from time to time.

Amended/clarified Supplemental decision

judgment
An entirely new decision Does not take the place
and supersedes the of or extinguish the
original judgment original judgment
Court makes a thorough Serves to add to the
study of the original original judgment
judgment and renders
the amended and
clarified judgment only
after considering all the
factual and legal issues

Post-Judgment Remedies
REMEDIES BEFORE FINALITY OF JUDGMENT
Motion for Reconsideration
Rule 37, Sec.1. Grounds of and period for filing
motion for new trial or reconsideration.Within the
period for taking an appeal, the aggrieved party
may move the trial court to set aside the judgment
or final order and grant a new trial for one or more
of the following causes materially affecting the
substantial rights of said party:
Fraud, accident, mistake or excusable negligence which
ordinary prudence could not have guarded against
and by reason of which such aggrieved party has
probably been impaired in his rights; or
Newly discovered evidence, which could not, with
reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
Within the same period, the aggrieved party may
also move for reconsideration upon the grounds
that the damages awarded are excessive, that the
evidence is insufficient to justify the decision or
final order, or that the decision or final order is
contrary law.
Grounds for a motion for reconsideration
The evidence is insufficient to justify the decision;
The damages awarded are excessive;
PAGE 72
The decision or final order is contrary to law.
Form and content of a motion for
reconsideration Motion for reconsideration
must be in writing, a written notice of which must
be served on the adverse party.
It is not sufficient to mention the ground relied upon. It
is necessary for the motion for reconsideration to
point out specifically the findings or conclusions of the
judgment or final order which are not supported by
the evidence or which are contrary to law, making
express reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.
Non-compliance with this requirement would
reduce the motion to a mere pro forma motion,
which shall not toll the period for appeal.
Grounds for motion for new trial
The aggrieved party may move the trial court to
set aside the judgment or final order and grant a
new trial for one or more of the following causes
materially affecting the substantial rights of the
said party:
UP COLLEGE OF LAW CIVIL PROCEDURE
FAME (Extrinsic Fraud, Accident, Mistake or
Excusable Negligence) which ordinary
prudence could not have guarded against
and by reason of which the aggrieved party
has probably been impaired in his rights.
The motion shall be supported by affidavits of
merit. Non-compliance with this
requirement would reduce the motion to a
mere pro forma motion.
The affidavits of merit must show the facts
(not mere conclusions or opinions)
constituting the valid cause of action or
defense which the movant may prove in
case a new trial is granted. Otherwise, if
the complaint is after all groundless or the
defense is ineffective, a new trial would
serve no purpose.
Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
The motion shall be supported by: affidavits
of the witnesses by whom such evidence
is expected to be given; and/or duly
authenticated documents which are
proposed to be introduced in evidence.
Non-compliance with this requirement would
reduce the motion to a mere pro forma
motion.
Tumang v. CA (1989): Newly discovered
evidence may and does commonly refer to
evidence already in existence prior to or during
trial but which could not have been secured and
presented during the trial despite reasonable
diligence on the part of the litigant.
Extrinsic fraud: any fraudulent scheme executed
by the prevailing party outside of the trial against
the losing party who, because of such fraud, was
prevented from presenting his side of the case.
Intrinsic fraud: acts of a party during the trial
which does not affect the presentation of the case.
Accident: an event that occurs without ones
foresight or expectation.
Mistake: generally, mistakes of facts or law where,
in good faith, the defendant was misled in a case.
WHEN TO FILE
The motion must be filed within the period for
appeal.
The period for appeal is within 15 days after notice
to the appellant of the judgment or final order
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BAR OPERATIONS COMMISSION
appealed from. The 15-day period is deemed to
commence upon receipt by the counsel of record,
which is considered notice to the parties. Service
upon the parties themselves is prohibited and is
not considered as official receipt of judgment.
No motion for extension of time shall be allowed.
Where a record on appeal is required, the
appellant shall file:
a notice of appeal, and
record on appeal within 30 days from notice of
the judgment or final order.
A record on appeal is required only in:
Special proceedings;
Other cases of multiple or separate appeals.
Resolution of the motion
Rule 37, Sec. 4. Resolution of motion. A motion for
new trial or reconsideration shall be resolved within
30 days from the time it is submitted for resolution.
Effect of filing
The filing of a timely motion interrupts the period
to appeal.
The 30-day period to resolve the motion is held
to be mandatory [Gonzales v. Bantolo (2006)]
Rule 37, Sec. 3. Action upon motion for new trial
or reconsideration.The trial court may set aside
the judgment or final order and grant a new trial,
upon such terms as may be just, or may deny the
motion. If the court finds that excessive damages
have been awarded or that the judgment or final
order is contrary to the evidence or law, it may
amend such judgment or final order accordingly.
DENIAL OF THE MOTION ; EFFECT Denial
of motion for reconsideration
The judgment or final order shall stand as is.
Rule 37, Sec. 7. Partial new trial or reconsideration.
If the grounds for a motion under this Rule appear to
the court to affect the issues as to only a part, or less
than all of the matter in controversy, or only one, or
less than all, of the parties to it, the court may order a
new trial or grant reconsideration as to such issues if
severable without interfering with the judgment or final
order upon the rest.
Single motion rule
Rule 37, Sec. 5. Second motion for new trial.A
motion for new trial shall include all grounds then
available and those not so included shall be deemed
waived. A second motion for new trial based on a
UP COLLEGE OF LAW
ground not existing or available when the first
motion was made, may be filed within the time
herein provided excluding the time during which
the first motion had been pending.
No party shall be allowed a second motion for
reconsideration of a judgment or final order.
The prohibition on a second motion does not
apply to a motion for reconsideration of an
interlocutory order.
Denial of motion for new trial
The judgment or final order shall stand as is.
Rule 37, Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered
retried, the court may either enter a judgment or
final order as to the rest, or stay the enforcement of
such judgment or final order until after the new
trial.
When there is an order for partial new trial, the
court may either enter a judgment or final order
as to the rest, or stay the enforcement of such
judgment or final order until after the new trial.
When a second motion for new trial is permissible:
When a ground for new trial was not existing or
available when the first motion was made.
GRANT OF THE MOTION ; EFFECT Grant
of motion for reconsideration
The court may amend the judgment or final
order accordingly. The amended judgment is in
the nature of a new judgment, which supersedes
the original judgment.
Grant of motion for new trial
The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at
the new trial without retaking them (if they are
material and competent).
REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY
PERIOD RULE
Rule 37, Sec. 9. Remedy against order denying a
motion for new trial or reconsideration. An order
denying a motion for new trial or reconsideration is
now appealable. (As modified by AM 07-7-12)
Remedy if motion is denied
To appeal from the judgment or final order itself.
The order denying the motion for new trial or
reconsideration may itself be assailed by a
petition for certiorari under Rule 65.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Habaluyas v. Japson (1986) : A motion for new
trial or reconsideration is not a prerequisite to an
appeal, a petition for review or a petition for review
on certiorari. And since the purpose is to expedite
the final disposition of cases, a strict but
prospective application of said ruling is in order.
Fresh period rule
Neypes v. CA (2005): If the motion is denied,
the movant has a fresh period of 15 days from
receipt or notice of the order denying the motion
for new trial or motion for reconsideration within
which to file an appeal.
This fresh period rule shall also apply to:
Rule 40 governing appeals from the Municipal Trial
Courts to the Regional Trial Courts;
Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies
to the Court of Appeals; and
Rule 45 governing appeals by certiorari to the
Supreme Court.
The new rule aims to regiment or make the
appeal period uniform, to be counted from
receipt of the order denying the motion for new
trial, motion for reconsideration (whether full or
partial) or any final order or resolution.
APPEALS IN GENERAL
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL
Rule 41 [as amended by A.M. 07-7-12 (2007)]
SECTION 1. Subject of appeal. An appeal may be
taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.
No appeal may be taken from:
An order denying a petition for relief or any
similar motion seeking relief from judgment;
An interlocutory order;
An order disallowing or dismissing an appeal;
An order denying a motion to set aside a judgment
by consent, confession or compromise on the
ground of fraud, mistake or duress, or any other
ground vitiating consent;
An order of execution;
A judgment or final order for or against one or more of
several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending, unless
the court allows an appeal therefrom; and
An order dismissing an action without prejudice.
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In any of the foregoing circumstances, the
aggrieved party may file an appropriate special
civil action as provided in Rule 65.
Significance of the amendment
An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
Final Order Interlocutory Order
Disposes of the matter Does not dispose of a
in its entirety, leaving case completely but
nothing more to be done leaves something more
but to enforce execution to be decided upon.
Appealable Not appealable except
through a petition for
certiorari under Rule 65
Must clearly and No need to comply with
distinctly state the law such a requirement
and the facts on which it
is based
MATTERS NOT APPEALABLE
Not appealable under Rule 41
Order denying motion for new trial or
reconsideration;
Order denying petition for review or any similar
motion seeking relief from judgment;
Interlocutory order;
Order disallowing/dismissing appeal;
Order denying motion to set aside judgment by
consent or confession or compromise on
ground of fraud or mistake or duress or any
other vitiation of consent;
Order of execution;
While the case is pending, judgment or final
order:
For/against one or more of several parties;
In separate claims, counterclaims, cross-
claims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.
Note: An interlocutory order is one that does not
finally dispose of the case, and does not end the
court's task of adjudicating the parties contentions
and determining their rights and liabilities as
regards each other, but obviously indicates that
other things remain to be done. [BPI v. Lee (2012)]
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH
ARE NOT APPEALABLE
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action
under Rule 65. [Rule 41, Sec. 1]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
MODES OF APPEAL
Ordinary appeal
Procedure in the Court of
Appeals Ordinary appealed
cases
Rule 44, Sec. 1. Title of cases. In all cases appealed
to the Court of Appeals under Rule 41, the title of the
case shall remain as it was in the court of origin, but the
party appealing shall be further referred to as the
appellant and the adverse party as the appellee.
Counsels and guardians
Rule 44, Sec. 2. Counsel and guardians. The
counsel and guardians ad litem of the parties in the
court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of
Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
adverse party and filed with the court.
Order of transmittal of record
Rule 44, Sec. 3. Order of transmittal of record.
If the original record or the record on appeal
is not transmitted to the Court of Appeals within
30 days after the perfection of appeal, either
party may file a motion with the trial court, with
notice to the other, for the transmittal of such
record or record on appeal.
Case docketing
Rule 44, Sec. 4. Docketing of case. Upon
receiving the original record or the record on
appeal and the accompanying documents and
exhibits transmitted by the lower court, as well as
the proof of payment of the docket and other lawful
fees, the clerk of court of the Court of Appeals shall
docket the case and notify the parties thereof.
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court approved record on appeal
Any unauthorized alteration, omission or
addition in the approved record in appeal shall
be a ground for dismissal of the appeal.
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file In the Court of
Appeals, one original (properly marked) and two
copies with their annexes [Efficient Use of Paper
Rule, AM 11-9-4-SC, Section 5]
A party required by the rules to serve a copy of his
court-bound on the adverse party need not enclose
copies of those annexes that based on the record of
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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
part who filed the paper shall comply with the
request within five days from receipt. [Efficient
Use of Paper Rule, AM 11-9-4-SC, Section 6]
Record completion
Rule 44, Sec. 5. Completion of record. Where the
record of the docketed case is incomplete, the clerk of
court of the Court of Appeals shall so inform the court
and recommend to it measures necessary to
complete the record. It shall be the duty of said court
to take appropriate action towards the completion of
the record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record.
Where the completion of the record could not be
accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely difficult
cases, the court, on its own motion or on motion of an
of the parties, may declare that the record and its
accompanying transcripts and exhibits so far available
are sufficient to decide the issues raised in the
appeal, and shall issue an order explaining the
reasons for such declaration.
The failure of appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order is a ground for dismissal of the appeal.
Appellants brief
Rule 44, Sec.7. Appellants brief. It shall be
the duty of the appellant to file with the court,
within 45 days from receipt of the notice of the
clerk that all the evidence, oral and
documentary, are attached to the record
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file In the Court of
Appeals, one original (properly marked) and two
copies with their annexes [Efficient Use of Paper
Rule, AM 11-9-4-SC, Section 5]
A party required by the rules to serve a copy of his
court-bound 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 part
who filed the paper shall comply with the request
within five days from receipt. [Efficient Use of
Paper Rule, AM 11-9-4-SC, Section 6]
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Contents of appellants brief
Rule 44, Sec. 13. Contents of appellants brief.
The appellants brief shall contain, in the
order herein indicated, the following:
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;
An assignment of errors intended to be urged,
which errors shall be separately, distinctly
and concisely stated without repetition and
numbered consecutively;
Under the heading Statement of the Case, a
clear and concise statement of the nature of
the action, a summary of the proceedings,
the appealed rulings and orders of the court,
the nature of the judgment and any other
matters necessary to an understanding of the
nature of the controversy, with page
references to the record;
Under the heading Statement of Facts, a clear
and concise statement in a narrative form of
facts admitted by both parties and of those in
controversy, together with the substance of
proof relating thereto in sufficient detail to
make it clearly intelligible, with page
references to the record;
A clear and concise statement of the issues of
fact or law to be submitted to the court for its
judgment;
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.
Under the heading Relief, a specification of the
order of judgment which the appellant seeks; and
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.
Rule 44, Sec. 15. Questions that may be raised on
appeal. Whether or not the appellant has filed a
motion for new trial in the court below, he may include
in his assignment of errors any question of law or fact
that has been raised in the court below and which is
within the issues framed by the parties.
Rule 124, Sec. 7. Contents of brief. The briefs in
criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A certified
true copy of the decision or final order appealed from
shall be appended to the brief of the appellant.
UP COLLEGE OF LAW
Appellees brief
Rule 44, Sec. 8. Appellees brief. Within 45 days
from receipt of the appellants brief, the appellee shall
file with the court copies of his legibly type-written,
mimeographed or printed brief, with proof of service of
2 copies thereof upon the appellant.
Note: Rules that apply, as regards the number of
copies to be filed, with the appellants brief apply
with the appellees brief.
Contents of appellees brief
Rule 44, Sec. 14. Contents of appellees brief.
The appellees brief shall, in the order herein
indicated, the following:
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;
Under the heading Statement of Facts, the
appellee shall state that the 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
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.
Reply brief
Rule 44, Sec. 9. Appellants reply brief. Within
20 days from receipt of the appellants brief, the
appellee shall file with the court copies of his
legibly typewritten, mimeographed or printed brief,
with proof of service upon the appellant.
Note: Note: Rules that apply, as regards the
number of copies to be filed, with the appellants
brief apply in this case.
Memoranda in special cases
Rule 44, Sec. 10. Time for memoranda in special
cases. In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties shall
file, in lieu of briefs, their respective memoranda
within a non-extendible period of 30 days from receipt
of the notice issued by the clerk that all the
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
evidence, oral or documentary, is already
attached to the record.
The failure of the appellant to file his
memorandum within the period therefore may be
a ground for dismissal of the appeal.
Several or plurality of appellants, appellees
and/or counsel
Rule 44, Sec. 11. Several appellants or appellees or
several counsel for each party.Where there are
several appellants or appellees, each counsel
representing one or more but not all of them shall be
served with only one copy of the briefs. When several
counsel represent one appellant or appellee, copies
of the brief may be served upon any of them.
Extension of time for filing briefs
Rule 44, Sec. 12. Extension of time for filing briefs.
Extension 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.
The Brief
De Liano v. CA (2001): The purpose of the brief is
to present to the court in concise form the points
and questions 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.
The brief should be so prepared as to minimize the
labor of the court in the examination of the record
upon which the appeal is heard and determined.
Failure to comply with required contents of appellants
brief is cause for dismissal of the petition.
Dismissal of appeal
Rule 50, Sec. 1. Grounds for dismissal of
appeal. An appeal may be dismissed by the
Court of Appeals, on its own motion or on that of
appellee, on the following grounds:
Failure of the record on appeal to show on its
face that the appeal was taken within the
period fixed by these Rules;
Failure to file the notice of appeal of the record
on appeal within the period prescribed by
these Rules;
Failure of the appellant to pay the docket and
other lawful fees as provide in section 5 of
Rule 40 and Section 4 of Rule 41;
Unauthorized alterations, omission or additions
in the approved record on appeal as provided
in section 4 of Rule 44;
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Failure of the appellant to serve and file the
required number of copies of his brief or
memorandum within the time provided by
these Rules;
Absence of specific assignment of errors in the
appellants brief, or of page references to the
record as required in section 13, paragraphs
(a), (c), (d) and (f) of Rule 44;
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;
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
The fact that the order or judgment appealed
from is not appealable.
PNB v. Philippine Milling (1969): CA has
discretion to dismiss or not to dismiss appeal.
Although said discretion must be a sound one,
to be exercised in accordance with the tenets of
justice and fair play, having in mind the
circumstances obtaining in each case, the
presumption is that it has been so exercised.
Padasdas v. CA (1974): Failure to file
appellants brief within the reglementary period
need not necessarily cause dismissal of appeal
where the same was due to force majeure.
Dismissal of improper appeal
Rule 50, Sec. 2. Dismissal of improper appeal
to the Court of Appeals. An appeal under
Rule 41 taken from the Regional Trial Court to
the Court of Appeals raising only questions of
law shall be dismissed, issues purely of law not
being reviewable by said court. Similarly, an
appeal by notice of appeal instead of by petition
for review from the appellate judgment of a
Regional Trial Court shall be dismissed.
An appeal erroneously taken to the Court of
Appeals shall not be transferred to the
appropriate court but shall be dismissed outright.
Atlas Consolidated v. CA (1991): Circular No. 2 -90
now prohibits the transfer of appeals erroneously
taken to the SC or CA to whichever of these tribunals
has appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound discretion
and considering the attendant circumstances, either
itself take cognizance of and
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
decide such issues or refer them to CA for
determination.
Cu-unjieng v. CA (2006): Nonpayment of the
appellate court docket and other lawful fees within the
reglementary period as provided under Rule 41, Sec.
4 is a ground for the dismissal of an appeal under
Rule 50, Sec. 1(c). The Supreme Court has invariably
sustained the Court of Appeals dismissal on technical
grounds under the afore-quoted provision unless
considerations of equity and substantial justice
present cogent reasons to hold otherwise. True, the
rules may be relaxed but only for persuasive and
weighty reasons, to relieve a litigant of an injustice
commensurate with his failure to comply with the
prescribed procedure.
Withdrawal of appeal
Rule 50, Sec. 3. Withdrawal of appeal. An
appeal may be withdrawn as of right at any time
before the filing of the appellees brief.
Thereafter, the withdrawal may be allowed in the
discretion of the court.
Stay of execution
See next page.
General rule: If judgment is rendered
against the defendant, execution shall issue
immediately upon motion.
Exception: Immediate execution of
judgment may be stayed if the following
requisites concur:
an appeal has been perfected
the defendant files a sufficient supersedeas
bond, approved by the MTC and executed in
favor of the plaintiff to pay the rents,
damages and costs accruing down to the
time of the judgment appealed from
during the pendency of the appeal, the
defendant deposits with the appellate court
the amount of rent due from time to time
under the contract; in the absence of a
contract, he shall deposit with the RTC the
reasonable value of the use and occupation
of the premises for the preceding month or
period at the rate determined by the
judgment of the lower court on or before the
10th day of each succeeding month or period
The supersedeas bond shall be transmitted by
the MTC, with the other papers, to the clerk of
the RTC to which the action is appealed.
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All amounts so paid to the appellate court
shall be deposited with said court or
authorized government depositary bond, and
shall be held there until the final disposition of
the appeal, UNLESS the court:
by agreement of the interested parties, or
in the absence of reasonable grounds of
opposition to a motion to withdraw, or
for justifiable reasons, shall decree otherwise.
Should the defendant fail to make the
payments, the appellate court, upon motion of
the plaintiff, and upon proof of such failure,
shall order the execution of the judgment
appealed from with respect to the restoration
of possession, but such execution shall not be
a bar to the appeal taking its course until the
final disposition thereof on the merits.
After the case is decided by the Regional Trial
Court, any money paid to the court by the
defendant for purposes of the stay of
execution shall be disposed of in accordance
with the provisions of the judgment of the
Regional Trial Court.
In any case wherein it appears that the defendant
has been deprived of the lawful possession of land
or building pending the appeal by virtue of the
execution of the judgment of the Municipal Trial
Court, damages for such deprivation of possession
and restoration of possession may be allowed the
defendant in the judgment of the Regional Trial
Court disposing of the appeal.
Habere Facias Possessionem; definition
The name of the process commonly resorted to by
the successful party in an action for ejectment, for
the purpose of being placed by the sheriff in the
actual possession of the land recovered.
San Pedro v. CA (1994): Judgments in
ejectment cases which are favorable to the
plaintiff are immediately executory. They can be
stayed by the defendant only by:
perfecting an appeal;
filing a supersedeas bond; and
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
making a periodic deposit of the rental or the
reasonable compensation for the use and
occupation of the property during the
pendency of the appeal.
These requisites must concur.
Puncia v. Gerona (1996): A stay of execution
may also be warranted once the writ is issued:
where the delay in the deposit is due to fraud,
accident, mistake, or excusable negligence; or,
where supervening events occurring subsequent
to the judgment bring about a material
change in the situation of the parties which
makes execution inequitable
where there is no compelling urgency for the
execution because it is not justified by the
prevailing circumstances
Rule 39, Sec. 2. Discretionary execution.
Execution of a judgment or a final order pending
appeal.On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the
time of the filing of such motion, said court may,
in its discretion, order execution of a judgment
or final order even before the expiration of the
period to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be
filed in the appellate court.
Discretionary execution may only issue upon
good reasons to be stated in a special order
after due hearing.
Execution of several, separate or partial judgments.
A several, separate or partial judgment
may be executed under the same terms and
conditions as execution of a judgment or final
order pending appeal.
Sec. 21, Revised Rules on Summary Procedure.
Appeal. The judgment or final order shall be
appealable to the appropriate RTC which shall
decide the same in accordance with Sec. 22 of BP
The decision of the regional trial court in civil cases
governed by this Rule, including forcible entry and
unlawful detainer, shall be immediately executory,
without prejudice to a further appeal that may be
taken therefrom. Section 10 of Rule 70 shall be
deemed repealed.
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Rule 43, Sec. 12. Effect of appeal.The appeal
shall not stay the award, judgment, final order or
resolution sought to be reviewed unless the
Court of Appeals shall direct otherwise upon
such terms as it may deem just.
Rule 39, Sec. 4. Judgments not stayed by appeal.
Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as
are not or may hereafter be declared to be
immediately executory shall be enforceable after their
rendition and shall not be stayed by an appeal taken
therefrom, unless otherwise ordered by the trial court.
On appeal therefrom, the appellate court in its
discretion may make an order suspending, modifying,
restoring or granting the injunction, receivership,
accounting, or award of support.
General rule: In ordinary appeals, execution is stayed.
Exceptions
Decision in forcible entry and unlawful detainer.
Exception to exception: If appellant stays
immediate execution by filing a notice of
appeal, supersedeas bond and depositing in
court a monthly rental or compensation for
the occupation as fixed by the court which
rendered the decision.
Decision of the MeTC, MTC or MCTC or the
RTC where execution pending appeal has
been granted by the court of origin or in a
proper case by the appellate court upon good
reasons to be stated in the order.
Decision of the RTC rendered in the exercise of its
appellate jurisdiction on cases tried and decided
by the court of origin under Summary Procedure.
Decision of a quasi-judicial agency under the
Rule 43, Sec. 12, UNLESS otherwise
provided by the Court CA;
Decision in cases of injunction, receivership,
support and accounting.
Service Specialists v. Sheriff of Manila (1986):
An appeal from the order denying the petition for
relief does not stay the judgment from which relief
is sought. In order to stay execution, it is necessary
to obtain a writ of preliminary injunction.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted
for judgment.A case shall be deemed
submitted for judgment:
In ordinary appeals.
Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or
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memorandum required by the Rules or by the court
itself, or the expiration of the period for its filing.
When such hearing is held, upon its termination or
upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.
In original actions and petitions for review.
Where no comment is filed, upon the expiration
of the period to comment.
Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
Where a hearing on the merits of the main case
is held, upon its termination or upon the filing of
the last pleading or memorandum as may be
required or permitted to be filed by the court, or
the expiration of the period for its filing.
Judgment
Rule 51, Sec. 2. By whom rendered. The
judgment shall be rendered by the members of
the court who participated in the deliberation on
the merits of the case before its assignment to a
member for the writing of the decision.
Rule 51, Sec. 3. Quorum and voting in the court.
The participation of all three Justices of a
division shall be necessary at the deliberation and
the unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or
final resolution. If the three Justices do not reach a
unanimous vote, the clerk shall enter the votes of
the dissenting Justices in the record. Thereafter,
the Chairman of the division shall refer the case,
together with the minutes of the deliberation, to the
Presiding Justice who shall designate two Justices
chosen by raffle from among the other members of
the court to sit temporarily with them, forming a
special division of five Justices. The participation of
all the five members of the special division shall be
necessary for the deliberation required in section 2
of this Rules and the concurrence of a majority of
such division shall be required for the
pronouncement of a judgment or final resolution.
Rule 51, Sec. 4. Disposition of a case.The
CA, in the exercise of its appellate jurisdiction,
may affirm, reverse, or modify the judgment or
final order appealed from, and may direct a new
trial or further proceedings to be had.
UP COLLEGE OF LAW CIVIL PROCEDURE
Sec.40, BP 129. Form of decision in appealed
cases. Every decision or final resolution of a
court in appealed cases shall clearly and distinctly
state the findings of fact and the conclusion of law
on which it is based, which may be contained in the
decision or final resolution itself, or adopted by
reference from those set forth in the decision,
order, or resolution appealed from.
Rule 51, Sec. 5. Form of decision.Every
decision or final resolution of the court in appealed
cases shall clearly and distinctly state the finding of
fact and the conclusions of law on which it is
based, which may be contained in the decision or
final resolution itself, or adopted from those set
forth in the decision, order, or resolution appealed
from.
The body of the judgment must contain the reasons or
conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
what actually constitutes the resolution of the court
which is the subject of the execution is the dispositive
portion of the fallo. [Olac v. CA]
Rule 51, Sec. 6. Harmless error.No error in either
the admission or the exclusion of evidence and no
error or defect in any ruling or order or in anything
done or omitted by the trial court or by any of the
parties is ground for granting a new trial or for setting
aside, modifying, or otherwise disturbing a judgment
or order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The
court at every stage of the proceedings must
disregard any error or defect which does not affect the
substantial rights of the parties.
Rule 51, Sec. 7. Judgment where there are
several parties.In all actions or proceedings, an
appealed judgment may be affirmed as to some of
the appellants, and revered as to others, and the
case shall thereafter be proceeded with, so far as
necessary, as of separate actions had been begun
and prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs may
be adjudged in such cases, as the court shall
deem proper.
Rule 51, Sec. 8. Questions that may be
decided.No error which does not affect the
jurisdiction over the subject matter or the validity
of the judgment appealed from or the
proceedings therein will be considered unless
stated in the assignment of errors, or closely
related to or dependent on an assigned error
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Rule 51, Sec. 9. Promulgation and notice of
judgment.After the judgment or final resolution
and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true
copies thereof to be served upon the parties or
their counsel.
Petition for review [Rule 42]
Mode of appeal in cases decided by the
Regional Trial Court in the exercise of its
appellate jurisdiction [Rule 41, Sec. 2]
Procedure:
Time for filing [Rule 42, Sec. 1]: The petition shall
be filed and served within fifteen (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.
Note: Time for filing the petition may be extended
(additional 15 days) by the CA 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.
However, no further extension shall be granted
except for the most compelling reason and in no
case to exceed fifteen (15) days.
Amount of costs: Php 500 [Rule 42, Sec. 1]
Petition for Review Form and Content [Rule 42, Sec. 2]:
Petition must state:
full names of the parties to the case w/o
impleading the lower courts or the judges
indicate material dates showing filed on time
set forth statement of the matters involved and the
issues raised, specification of errors of
fact/law/both and the reasons or arguments
relied upon for the allowance of the appeal
It must also be accompanied by legible duplicate
original/true copies of the judgments/orders,
certified correct by the CoC, the requisite
number of copies and of the pleadings and other
material portions of the record supporting the
allegations of the petition
Copies to be filed:
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file In the Court of
Appeals, one original (properly marked) and two
copies with their annexes [Efficient Use of Paper
Rule, AM 11-9-4-SC, Section 5]
UP COLLEGE OF LAW
A party required by the rules to serve a copy of his
court-bound 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 part
who filed the paper shall comply with the request
within five days from receipt. [Efficient Use of
Paper Rule, AM 11-9-4-SC, Section 6]
A Certification under oath shall also be submitted.
The certification must state:
that he has not theretofore commenced any
other action involving the same issues in the
SC, CA, or any other tribunal or agency;
if there is such other action or proceeding, he
must state the status of the same; and if he
should thereafter learn that a similar action or
proceeding has been filed or is pending
before the SC, CA, or any other tribunal or
agency, he undertakes to promptly inform the
aforesaid courts and other tribunal or agency
thereof within five (5) days therefrom
Note: Failure to comply with the requirements
shall be a ground for dismissal [Rule 42, Sec. 3]
Action of the Court [Rule 42, Sec. 4]: Court may
REQUIRE RESPONDENT TO SUBMIT COMMENT
within 10 days from notice or DISMISS the petition
Possible Grounds for dismissal:
patently without merit,
prosecuted manifestly for delay, or
questions raised are too unsubstantial to
require consideration
Form and Content of Comment [Rule 42, Sec.
5]: Comment must be in one original (properly
marked) and two copies with their annexes
(Efficient Use of Paper Rule, Section 5),
accompanied by certified true copies of such
material portions of the record; stating:
whether or not he accepts the statement of
matters involved in the petition
point out such insufficiencies or inaccuracies as
he believes exist in petitioners statement of
matters involved but without repetition
reasons why the petition should not be given
due course
If the CA finds that there is a prima facie that the
lower court has committed an error of fact or law that
will warrant a reversal or modification of the appealed
decision, it may accordingly give due course to the
petition. [Rule 42, Sec. 6]. The CA may
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
also order the elevation of the original record
from the RTC to the CA.
Effect of Perfection of Appeal [Rule 42, Sec. 8]:
RTC loses jurisdiction
Note: Before the CA gives due course to the
petition, the RTC has authority to do the
following:
issue orders for the protection and
preservation of the rights of the parties
which do not involve any matter litigated
by the appeal
approve compromises
permit appeals of indigent litigants
order execution pending appeal in
accordance with Sec. 2 of Rule 39, and
allow withdrawal of the appeal
Appeal shall stay the judgment or final
order Exceptions:
In civil cases decided under the Summary
Procedure
CA, law or ROC provided otherwise
Action of the Court after petition is given due
course [Rule 42, Sec. 9]: CA may:
Set the case for oral argument; or
Require parties to submit memoranda within a
period of fifteen (15) days from notice
When case is deemed submitted for
decision: upon filing of the last
pleading/memorandum [Rule 42, Sec. 9]
Petition for review on certiorari
Procedure in the Supreme Court (Appealed Cases)
Mode of appeal
Rule 56, Sec. 3. Mode of appeal. An appeal
to the Supreme Court may be taken only by a
petition for review on certiorari, except in
criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment.
Procedure
Rule 56, Sec. 4. Procedure. The appeal shall
be governed by and disposed of in accordance
with the applicable provisions of the
Constitution, laws, Rules 45, 48, sections 1, 2
and 5 to 11 of Rules 51, 52 and this Rule.
Grounds for dismissal of appeal
Rule 56, Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:
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Failure to take the appeal within the
reglementary period;
Lack of merit in the petition;
Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
Failure to comply with the requirements
regarding proof of service and contents of
and the documents which should accompany
the petition;
Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
Error in the choice or mode of appeal; and
The fact that the case is not appealable to the
Supreme Court.
Improper appeal
Rule 56, Sec. 6. Disposition of improper appeal.
Except as provided in section 3, Rule 122
regarding appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment, an appeal taken to the Supreme
Court by notice of appeal shall be dismissed.
An appeal by certiorari taken to the Supreme
Court from the Regional Trial Court submitting
issues of fact may be referred to the Court of
Appeals for decision or appropriate action. The
determination of the Supreme Court on whether
or not issues of facts are involved shall be final.
Rule 122, Sec. 3. How appeal taken.
The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its
original jurisdiction, shall be by notice of appeal
filed with the court which rendered the judgment
or final order appealed from and by serving a
copy thereof upon the adverse party.
The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be
by petition for review
under Rule 42.
The appeal in cases where the penalty imposed by
the Regional Trial Court is reclusion perpetua or
life imprisonment, or where a lesser penalty is
imposed but for offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall be
by notice of appeal to the Court of Appeals in
accordance with paragraph (a) of this Rule.
No notice of appeal is necessary in cases where the
Regional Trial Court imposed the death
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
penalty. The Court of Appeals shall
automatically review the judgment as
provided in Section 10 of this Rule.
Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review
on certiorari under Rule 45.
General rule: An appeal taken to the Supreme
Court by notice of appeal shall be dismissed.
Exception: Appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or
life imprisonment.
Equally divided
Rule 56, Sec. 7. Procedure if opinion is equally
divided.Where the court en banc is equally divided
in opinion, or the necessary majority cannot be had,
the case shall again be deliberated on, and if after
such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed from
shall stand affirmed; and on all incidental matters, the
petition or motion shall be denied.
Questions of Fact v. Questions of Law
Agote v. Lorenzo (2005): A question of law does
not involve an examination of the probative value
of the evidence presented by any of the litigants.
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 the doubt or difference arises as to
the truth or the falsehood of the facts alleged.
Alsua-Betts v. CA (1979):
General rule: CAs findings of fact are final and
conclusive and cannot be reviewed on appeal to
the SC, provided they are borne out by the
record or are based on substantial evidence.
Exception: CAs findings of fact may be reviewed
by the SC on appeal by certiorari when:
Conclusion is a finding grounded entirely on
speculations, surmises or conjectures
[Joaquin v. Navarro (1953)].
Inference made is manifestly mistaken, absurd or
impossible [Luna v. Linatok (1942)].
There is grave abuse of discretion in the
appreciation of facts [Buyco v. People (1954)].
Judgment is based on a misapprehension of
facts [De la Cruz v. Sosing (1953).
The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].
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The Court of Appeals, in making its findings, went
beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
The Court of Appeals manifestly overlooked certain
relevant facts not disputed by the parties and
which, if properly considered, would justify a
different conclusion [Abellana v. Dosdos (1965)].
The Court of Appeals findings of fact are contrary to
those of the trial court, or are mere conclusions
without citation of specific evidence, or where the
facts set forth by the petitioner are not disputed by
the respondent, or where the findings of fact of the
Court of Appeals are premised on absence of
evidence but are contradicted by the evidence of
record [Manlapaz v. CA (1987)].
Perez-Rosario v. CA (2005): Rule 65 cannot
cure the failure to appeal thru Rule 45.
ISSUES TO BE RAISED ON APPEAL
Cognizable judgments/issues
The appellate court has no jurisdiction to review
a judgment which is immediately final and
executory by express provision of law. [Republic
v. Bermudez-Lorino (2005)]
Rationale: Appeal is merely a privilege conferred
by law upon the litigants.
A party cannot change the theory on appeal.
Only issues pleaded in the lower court and
properly raised may be resolved by the appellate
court. [Medina v. CA (1992)]
However, issues which are inferred from or
necessarily connected with the issue properly
raised and pleaded may be resolved by the
appellate court. [Espina v. CA (1992)]
Notice of appeal
The notice of appeal shall indicate the parties to
the appeal, the judgment or final order or part
thereof appealed from, and state the material
dates showing the timeliness of the appeal.
Record of appeal
Required only in:
Special proceedings;
Multiple or separate appeals where the law or
the Rules of Court so requires.
Rule 40, Sec.2. When to appeal.The appeal is
taken by filing a notice of appeal with the court that
rendered the judgment or final order appealed from.
Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal
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BAR OPERATIONS COMMISSION
within 30 days after notice of the judgment or
final order.
The period of appeal shall be interrupted by a
timely motion for new trial or reconsideration. No
motion for extension of time to file a motion for
new trial or reconsideration shall be allowed.
Neypes v. CA (2005) on the fresh period rule:
Definition: Period of appeal is interrupted by a
timely motion for new trial or reconsideration.
Motion for extension of time to file motion for
new trial or reconsideration is not allowed.
Applicability:
Rule 40 on appeals from MTC to RTC.
Rule 42 on petitions for review from RTC to CA.
Rule 43 on appeals from QJA to CA.
Rule 45 on appeals by certiorari to SC.
Rationale: To standardize the appeal periods
provided in the Rules of Court and to afford
litigants fair opportunity to appeal their cases,
the court deems it practical to allow a fresh
period of 15 days within which to file the notice
of appeal in the Regional Trial Court, counted
from receipt of the order dismissing a motion for
new trial or reconsideration.
PERIOD OF APPEAL
From MTC to RTC and from RTC (original) to CA
By notice of appeal: 15 days from notice of the
judgment or final order
By record of appeal: 30 days from notice of the
judgment or final order
From MTC to RTC (appellate) to CA: 15 days
from notice of the judgment or final order but
the Court of Appeals may grant a 15 day
extension. No further extension shall be
granted except for the most compelling
reasons and in no case longer than 15 days.
From RTC (original) to CA to SC and from
MTC to RTC (appellate) to CA to SC and from
CA to SC and from QJA to CA to SC
15 days from notice of judgment or final order or
from denial of petitioners motion for
reconsideration or new trial. The SC may grant a
30 day extension for justifiable reasons.
From QJA to CA
15 days from notice of the award, judgment, final
order or resolution or from date of last
publication if required by law. The CA may grant
a 15 day extension. No further extension shall
be granted except for the most compelling
reasons and in no case longer than 15 days.
 UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

Distinctions between Rule 45 and Rule 45 Appeal by Certiorari Rule 65 Original Action
Rule 65 Based on J. Regalados Commentary

(Asked in the 1999 and 2008 Bar Exams) for Certiorari

(5) Parties Involved The parties are the
Rule 45 Appeal by Certiorari Rule 65 Original Action Original Parties to the aggrieved party against
action remain the same the lower court/Quasi-
for Certiorari
during appeal (albeit with judicial agency and the
(1) Issues Raised Grave Abuse of
the corresponding prevailing parties, who
Questions of Law Discretion Amounting to
appellation of appellant thereby respectively
Lack or Excess of
and appellee), the lower become the petitioner
Jurisdiction
court or quasi-judicial and the respondents.
(2) Against What Court Directed Against an agency is not to be
Action Directed Interlocutory Order of the impleaded.
Review of the judgment, court prior to appeal
Requirement of Motion MR is a CONDITION
award or final order on from the judgment, or
for Reconsideration PRECEDENT subject
the merits where there is no appeal
For purposes of appeal, only to certain
or any other plain speedy
MR is not required exceptions.
and adequate remedy
(7) Exercise of Jurisdiction Higher Court exercises
(3) Reglementary Period Not later than sixty (60)
The Appellate Court original jurisdiction under
Must be filed within the days from notice of the
exercises its appellate its power of control and
reglementary period for judgment, order or
jurisdiction and power of supervision over the
appeal. resolution sought to be
review proceedings of lower
assailed.
courts.
(4) Effect on the Proceedings No effect (i.e.,
Below proceedings below
Judgment, award or continue) unless a writ of
order appealed from is preliminary injunction or
stayed by the Appeal a temporary restraining
order has been issued
Matrix of Periods
Period to Appeal Extensions Effect of MR or MNT

By notice of appeal - 15 days No extensions allowed Interrupts the period to

from notice of the judgment or
MTC to RTC final order
By record of appeal 30 days
from notice of the judgment or
final order
By notice of appeal - 15 days
from notice of the judgment or
RTC to CA final order
By record of appeal 30 days
from notice of the judgment or
final order
15 days from notice of the
MTC to RTC to judgment or final order OR
from denial of MR or MNT
CA
15 days from notice of the
award, judgment, final order or
QJA to CA resolution or from date of last
publication if required by law
OR from denial of MR or MNT
RTC to SC 15 days from notice of judgment
RTC to CA to or final order OR from denial of
No extensions allowed
The CA may grant a 15 day
extension. No further extension
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The CA may grant a 15 day
extension. No further extension
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The SC may grant a 30 day
extension for justifiable reasons.
appeal
Interrupts the period to
appeal
Fresh period to appeal
from denial MR or MNT
Fresh period to appeal
from denial MR or MNT
Fresh period to appeal
from denial MR or MNT

PAGE 85
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SC petitioners MR or MNT.
CA to SC
This fresh period rule shall also apply to:
Rule 40 governing appeals from the Municipal Trial
Courts to the Regional Trial Courts;
Rule 42 on petitions for review from the
Regional Trial Courts to the Court of Appeals;
Rule 43 on appeals from quasi-judicial agencies
to the Court of Appeals; and
Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment
or make the appeal period uniform, to be
counted from receipt of the order denying the
motion for new trial, motion for reconsideration
(whether full or partial) or any final order or
resolution. [Neypes v. CA, (2005)]
A party litigant may now file his notice of appeal
either within fifteen days from receipt of the original
decision or within fifteen days from the receipt of
the order denying the motion for reconsideration.
Being procedural in nature, Neypes is deemed
to be applicable to actions pending and
undetermined at the time of its effectivity and is
thus retroactive in that sense and to that extent.
[First Aqua Sugar v. BPI (2007)]
PERFECTION OF APPEAL
Perfection of an appeal in the manner and within
the period laid down by law is mandatory and
jurisdictional. [Balgami v. CA (2004)]
Rationale: Appeal is merely a statutory privilege,
and may be exercised only in the manner and in
accordance with the provisions of the law. It is
neither a natural right nor a part of due process.
Effect of failure to perfect appeal
Defeats a partys right to appeal.
Precludes appellate court from acquiring
jurisdiction.
Camposagrado v. Camposagrado (2005):
Failure to pay the appellate court docket fee
within the reglementary period confers only a
discretionary (not mandatory) power to dismiss
the proposed appeal. Such discretion should
consider all attendant circumstances and must
be exercised with a view to substantial justice.
Republic v. Bermudez-Lorino (2005):
Appellate court has no jurisdiction to review a
judgment which is immediately final and
executory by express provision of law.
Medina v. CA (1992): A party cannot change the
theory on appeal. Only issues pleaded in the
lower court and properly raised may be resolved
by the appellate court.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Espina v. CA (1992): However, issues which
are inferred from or necessarily connected with
the issue properly raised and pleaded may be
resolved by the appellate court.
Appeal from MTC to RTC: the rules on
perfection of appeal from RTC to CA applies.
From the Regional Trial Court to CA:
By notice of appeal: perfected as to party who filed
notice upon filing of the same in due time
The court loses jurisdiction over the case
upon perfection of appeal AND expiration of
time to appeal of the other parties.
By record on appeal: perfected as to the party
who filed appeal and with respect to the
subject matter thereof upon approval of the
record filed in due time
The court loses jurisdiction upon approval of
the records on appeal AND expiration of the
time to appeal of the other parties
From MTC to RTC (appellate jurisdiction) to CA: upon
timely filing of a petition for review and the payment of
the corresponding docket and other lawful fees.
The RTC loses jurisdiction upon perfection of
appeals filed in due time AND the expiration of
time to appeal of other parties.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC
MTC to RTC
Rule 40, Sec.1. Where to appeal. An appeal from
a judgment or final order of a MTC may be taken to
the RTC exercising jurisdiction over the area to which
the former pertains. The title of the case shall remain
as it was in the court of origin, but the party appealing
the case shall be further referred to as the appellant
and the adverse party the appellee.
The other provisions governing appeal from RTC
to CA so long as they are not inconsistent are
applicable to appeal from MTC to RTC.
MTC to RTC to CA
File a verified petition for review with the CA,
paying at the same time to the clerk of said
court the corresponding docket and other
lawful fees, depositing the amount of P500
for costs and furnishing the RTC and the
adverse party with a copy of the petition.
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UP COLLEGE OF LAW
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
MNT or MR filed in due time after judgment.
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 CA may grant
an additional period of 15 days only within
which to file the petition for review. No further
extension shall be granted except for the most
compelling reason and in no case to exceed
15 days. [Rule 42, Sec. 1]
(Asked in the 1999 and 2002 Bar Exam)
Petition for review from RTC to CA [Rule 42]
Applicability. Appeal of RTC decision rendered in
exercise of appellate jurisdiction [Rule 42, Sec. 1]
Certificate of Non-Forum Shopping (CNFS).
Petitioner in a petition for review in CA/SC
must submit a CNFS with the petition. However,
this rule is relaxed where there is need to
conduct a review. In those instances, petitioner
may comply with the requirement after he has
filed the petitions. [Rule 42, Sec.1]
MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.In all
cases where only questions of law are raised or
involved, the appeal shall be to the SC by petition
for review on certiorari in accordance with Rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.A party desiring to appeal by certiorari
from a judgment or final order or resolution of
the CA, the Sandiganbayan, the RTC or other
courts whenever authorized by law, may file with
the SC a verified petition for review on certiorari.
The petition may include an application for a writ
of preliminary injunction or other provisional
remedies and shall raise only questions of law
which must be distinctly set forth. The petitioner
may seek the same provisional remedies by
verified motion filed in the same action or
proceeding at any time during its pendency.
(Asked in the 2002 Bar Exams)
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Applicability of Rule 45
Rule 45, Sec.9. Rule applicable to both civil and
criminal cases.The mode of appeal prescribed
in this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where
the penalty imposed is death, reclusion perpetua
or life imprisonment.
Filing of Petition
File with the SC a verified petition for review on
certiorari.
Unless otherwise directed by the court, the number
of court- bound papers that a party is required
or desires to file 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. For the En Banc, the parties
need to submit only two sets of annexes, one
attached to the original and an extra copy. For
the Division, the parties need to submit also two
sets of annexes, one attached to the original
and an extra copy. All members of the Court
shall share the extra copies of annexes in the
interest of economy of paper.
Parties to cases before the Supreme Court are
further required, on voluntary basis for the first
six months following the effectivity of this Rule
and compulsorily afterwards unless the period
is extended, to submit, simultaneously with their
court-bound papers, soft copies of the same
and their annexes (the latter in PDF format)
either by email to the Courts 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.
(Efficient Use of Paper Rule, Section 5)
Petition shall raise only questions of law which
must be distinctly set forth.
Contents of Petition [Rule 45, Sec. 4]
Full name of the appealing party (petitioner) and
the adverse party (respondent).
Without impleading the lower court or judges as
petitioners/respondents.
Material dates:
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 the
denial thereof was received.
Concise statement of the matters involved, and
the reasons/arguments relied on for the
allowance of the petition;
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A clearly legible duplicate original, or a certified
true copy of the judgment or final order or
resolution certified by the clerk of court of the
court a quo and the requisite number of plain
copies thereof, and such material portions of
the record as would support the petition;
Certificate of non-forum shopping.
File petition within 15 days from notice:
of the judgment or final order or resolution
appealed from, or
of the denial of the petitioner's motion for
new trial or reconsideration filed in due
time after notice of the judgment.
On motion duly filed and served, with full
payment of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the
SC may for justifiable reasons grant an
extension of 30 days only within which to
file the petition. [Rule 45, Sec. 2]
Rule 45, Sec.3. Docket and other lawful fees;
proof of service of petition. Unless he has
theretofore done so, the petitioner shall pay the
corresponding docket and other lawful fees to the
clerk of court of the Supreme Court and deposit the
amount of P500.00 for costs at the time of the filing
of the petition. Proof of service of a copy thereof on
the lower court concerned and on the adverse
party shall be submitted together with the petition.
Dismissal or denial of petition
Rule 45, Sec.5. Dismissal or denial of petition.
The failure of the petitioner to comply with
any of the foregoing requirements regarding the
payment of the docket and other lawful fees,
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.
The SC may on its own initiative deny the
petition on the ground that the appeal is without
merits, or is prosecuted manifestly for delay, or
that the questions raised therein are too
unsubstantial to require consideration.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Review is discretionary
A review is not a matter of right, but of sound
judicial discretion, and will be granted only when
there are special and important reasons therefore.
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:
When the court a quo has decided a question of
substance, not theretofore determined by the
SC, or has decided it in a way probably not in
accord with law or with the applicable
decisions of the SC; or
When the court a quo has so far departed from
the accepted and usual course of judicial
proceedings, or so far sanctioned such
departure by a lower court, as to call for an
exercise of the power of supervision.
May Require Pleadings and Documents
Rule 45, Sec. 7. Pleadings and documents that may
be required; sanctions. For purposes of
determining whether the petition should be dismissed
or denied pursuant to sec.5 of this Rule, or where the
petition is given due course under Sec.8 hereof, the
SC may require or allow the filing of such pleadings,
briefs, memoranda or documents as it may deem
necessary within such periods and under such
conditions as it may consider appropriate, and impose
the corresponding sanctions in case of non-filing or
unauthorized filing of such pleadings and documents
or non-compliance with the conditions therefor.
Due Course and Elevation of Records
Rule 45, Sec. 8. Due course; elevation of records.
If the petition is given due course, the SC may require
the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.
MTC to SC
The remedy is a petition for certiorari under Rule
65.
This is not an appeal.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC
RTC to CA
Under Rule 41, an appeal of judgment or final
order under that completely disposes of either:
The case;
A particular matter in the case, when declared
by ROC to be appealable.
Not appealable under Rule 41
Order denying motion for new trial or
reconsideration;
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Order denying petition for review or any similar
motion seeking relief from judgment;
Interlocutory order;
Order disallowing/dismissing appeal;
Order denying motion to set aside judgment by
consent or confession or compromise on
ground of fraud or mistake or duress or any
other vitiation of consent;
Order of execution;
While the case is pending, judgment or final
order:
For/against one or more of several parties;
In separate claims, counterclaims, cross-
claims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.
In the 8 cases not appealable under Rule 41, the
aggrieved party may file a special civil action
under Rule 65.
Interlocutory order
Definition: If it does not dispose of the case but
leaves something else to be done by the trial
court on the merits of the case. [Investments,
Inc. v. CA (1987)]
For purposes of appeal, an order is final if it
disposes of the entire case. An order for partial
summary judgment is an interlocutory order
which cannot be appealed from. The trial court
had not yet rendered a complete final judgment.
[GSIS v. Phil. Village Hotel (2004)]
Multiple appeals
Civil cases which admit of multiple appeals:
Judgment in an action for recovery or for
partition of property is separately appealable
from the proceedings on that part of the
judgment wherein accounting for receipts
from the property is ordered as a primary or
incidental relief. When such accounting is
submitted and either approved or rejected by
the trial court, another appeal lies therefrom.
Special civil actions:
Expropriation; (Rule 67)
Judicial partition; (Rule 69)
Judicial foreclosure of mortgage; (Rule 68)
Special proceedings also admit of multiple appeals.
Ko v. PNB (2006): The order of dismissal due to
failure to prosecute is appealable by notice of
appeal under Rule 41.
Philexport v. PI (2004): But an order of dismissal
without prejudice is not appealable under Rule 41.
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Lanaria v. Planta (2007): Submission of a
document together with the motion for
reconsideration constitutes substantial
compliance with compliance with Section 2, Rule
42 or the requirement that relevant or pertinent
documents be submitted along with the petition,
and calls for the relaxation of procedural rules
RTC to CA to SC
The remedy is a petition for review on certiorari
under Rule 45.
RTC to SC
The remedy is a petition for certiorari under Rule
65.
This is not an appeal.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA
CA to SC
The remedy is a petition for review on certiorari
under Rule 65.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA
RA 9282: Decisions of the CTA are now
appealable to the SC by petition for review on
certiorari under Rule 45.
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
THE COA
The remedy is a petition for certiorari under Rule
65. [Rule 64, Section 2]
Time to file: petition shall be filed within thirty
(30) days from notice of the judgment or final
order or resolution
Note: If allowed under the Rules of the
Commission concerned, the filing of a motion for
new trial/reconsideration shall interrupt the period
Copies to be filed: Unless otherwise directed by
the 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. [AM 11-9-4-SC, Section 5(a)]
Contents:
State the facts with certainty, present clearly the
issues involved, set forth the grounds and brief
arguments relied upon for review, and pray for
judgment annulling or modifying the questioned
judgment, final order or resolution. Findings of fact
of the Commission supported by substantial
evidence shall be final and non-reviewable.
Accompanied by a clearly legible duplicate
original or certified true copy of the judgment,
UP COLLEGE OF LAW
final order or resolution subject thereof,
together with certified true copies of such
material portions of the record as are referred
to therein and other documents relevant and
pertinent thereto.
For the Division, the parties need to submit also
two sets of annexes, one attached to the original
and an extra copy. All members of the Court shall
share the extra copies of annexes in the interest of
economy of paper. Parties to cases before the
Supreme Court are further required, on voluntary
basis for the first six months following the effectivity
of this Rule and compulsorily afterwards unless the
period is extended, to submit, simultaneously with
their court-bound papers, soft copies of the same
and their annexes (the latter in PDF format) either
by email to the Courts 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.
State the specific material dates showing that it
was filed within the period fixed herein, and
shall contain a sworn certification against
forum shopping as provided in the third
paragraph of section 3, Rule 46.
Accompanied by proof of service of a copy
thereof on the Commission concerned and
on the adverse party, and of the timely
payment of docket and other lawful fees.
Note: The failure of petitioner to comply with any
of the foregoing requirements shall be sufficient
ground for the dismissal of the petition.
Effect of Filing: The filing of a petition
for certiorari shallnot stay the execution of the
judgment or final order or resolution sought to be
reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just.
If the SC finds finds the petition sufficient in form
and substance, it shall order the respondents to
file their comments on the petition within ten (10)
days from notice; otherwise, it may dismiss the
petition outright. [Rule 64, Section 6]
Aside from the comment, No other pleading may
be filed by any party unless required or allowed
by the Court. [Rule 64, Section 7]
Unless the Court sets the case for oral argument, or
requires the parties to submit memoranda, the case
shall be deemed submitted for decision upon the filing
of the comments on the petition, or of such
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
other pleadings or papers as may be required or
allowed, or the expiration of the period to do so.
[Rule 64, Section 9]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
THE COMELEC
[same with COA (Rule 64)]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
THE CSC
The remedy of an aggrieved party from a
resolution issued by the CSC is to file a petition
for review thereof under Rule 43 of the Rules of
Court within fifteen days from notice of the
resolution. [DECS v. Cuanan (2008)]
OREVIEW OF FINAL JUDGMENTS OR FINAL ORDERS
OF THE OMBUDSMAN
When CA has Jurisdiction
In administrative cases: Where the respondent is
absolved of the charge, and in case of conviction
where the penalty imposed is public censure or
reprimand, suspension of not more than one month,
or a fine equivalent to one month salary , the decision
shall be unappealable. In all other cases, the decision
may be appealed to the CA on a verified petition for
review under the requirements and conditions set
forth in Rule 43 of the Rules of Court, within 15 days
from receipt of the written Notice of the Decision or
Order denying the Motion for Reconsideration. [AO 7,
Rule III, Section 7]
Note: An appeal shall not stop the decision from
being executory.
When the SC has Jurisdiction
In cases in which it is alleged that the Ombudsman
has acted with grave abuse of discretion amounting to
lack or excess of jurisdiction, a special civil action of
certiorariunder Rule 65 may be filed with this Court to
set aside the Ombudsmans order or resolution.
[Nava v. NBI (2005)]
Court has jurisdiction over such petitions
questioning resolutions or orders of the Office of
the Ombudsman in criminal cases. [Kuizon v.
Desierto (2001)]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
THE NLRC
Rule 43, Sec.2. Cases not covered.This Rule
shall not apply to judgments or final orders
issued under the Labor Code of the Philippines.
NLRC judgments and final orders or resolutions are
now reviewable, in the first instance, by the Court of
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Appeals on certiorari under Rule 65, but those of
the Employees Compensation Commission should
be brought to the Court of Appeals through a
petition for review under this Rule. Also, appeals
from the Office of the Ombudsman in
administrative disciplinary cases are now covered
by this Rule. [Fabian v. Desierto (1998)]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF
QUASI-JUDICIAL AGENCIES
QJA to CA
Applicability
Appeals from judgments or final orders of the
CTA and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)
Agricultural Inventions Board (AIB);
Board of Investments (BOI);
Bureau of Patents, Trademarks and Technology
Transfer (BPTTT);
Central Board of Assessment Appeals (CBAA);
Civil Aeronautics Board (CAB);
Civil Service Commission (CSC);
Construction Industry Arbitration Commission;
Department of Agrarian Reform (DAR under RA
6657)
Employees Compensation Commission (ECC);
Energy Regulatory Board (ERB);
Government Service Insurance System (GSIS);
Insurance Commission;
Land Registration Authority (LRA);
National Electrification Administration (NEA);
National Telecommunications Commission
(NTC);
Office of the President (OP);
Philippine Atomic Energy Commission (PAEC);
Securities and Exchange Commission (SEC);
Social Security Commission (SSC);
Voluntary arbitrators authorized by law.
A resolution of the DOJ Secretary is not
appealable under Rule 43. Recourse should be
to the President, instead of the CA, under the
established principle of exhaustion of
administrative remedies. [Orosa v. Roa (2006)]
Exhaustion of Administrative Remedies
If an appeal/remedy obtains or is available within the
administrative machinery, this should be resorted to
before resort can be made to the courts.
Under Rule 43, Sec. 4 the petition should be
filed within 15 days from:
(a) Notice of the final order; or
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
The date of its last publication, if publication is
required by law for its effectivity; or
The denial of the petitioners MFR duly filed
according to the governing law of the court or
agency a quo. [Villorente v. Laiya (2005)]
Under Rule 43, there is no need to implead the
lower court or agency which rendered the
assailed decision. [Basmayor v. Atencio (2005)]
Submission of the duplicate original or certified true
copy of judgment, order, resolution or ruling subject
of a petition for certiorari is essential to determine
whether or not the court, body or tribunal which
rendered the same indeed committed grave abuse
of discretion. Either a legible duplicate original or
certified true copy thereof shall be submitted. If
what is submitted is a copy, then it is required that
the same is certified by the proper officer of the
court, tribunal, agency or office involved. This is to
assure that such copy is a faithful reproduction of
the judgment, order, resolution or ruling subject of
the petition. [Coca-cola v. Cabalo (2006)]
Recourse to a petition for certiorari under Rule
65 renders the petition dismissible for being the
wrong remedy. Nonetheless, there are
exceptions to this rule:
when public welfare and the advancement of
public policy dictates;
when the broader interest of justice so requires;
when the writs issued are null and void; or
when the questioned order amounts to an
oppressive exercise of judicial authority.
[DECS v. Cuanan (2008)]
QJA to CA to SC
Remedy is a petition for review on certiorari
under Rule 45.
QJA to SC
Remedy is a petition for certiorari under Rule 65,
which is not an appeal.
RELIEF FROM JUDGMENTS, ORDERS AND
OTHER PROCEEDINGS
Definition: It is a legal remedy whereby a party seeks
to set aside a judgment rendered against him by a
court whenever he is unjustly deprived of a hearing or
was prevented from taking an appeal because of
fraud, accident, mistake or excusable negligence.
Francisco v. Puno (1981): A party who has filed a
timely motion for new trial or motion for
reconsideration can no longer file a petition for relief
from judgment after his motion has been denied.
These remedies are mutually exclusive. It is only in
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appropriate cases where a party aggrieved by
the judgment has not been able to file a motion
for new trial or motion for reconsideration that a
petition for relief can be filed.
GROUNDS FOR AVAILING OF THE REMEDY
Rule 38, Sec. 1. Petition for relief from
judgment, order, or other proceedings. When
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, he may file a petition in
such court and in the same case praying that the
judgment, order or proceeding be set aside.
The relief provided for by Rule 38 is of equitable
character and is only allowed in exceptional cases,
that is where there is no other available or
adequate remedy. A petition for relief is not
regarded with favor and judgment will not be
disturbed where the party complaining has or by
his exercising proper diligence would have had an
adequate remedy at law, as where petitioner could
have proceeded by appeal to vacate or modify the
default judgment. [Manila Electric v. CA (1990)]
Petition for relief under Rule 38 is an admission
that the period to appeal from the decision had
already expired. [David v. CA (1992)]
TIME TO FILE PETITION
Rule 38, Sec.3. Time for filing petition; contents and
verification. A petition provided for in either of the
preceding sections of this Rules must be verified, filed
within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set
aside, and not more than 6 months after such
judgment or final order was entered, or such
proceeding was taken; and must be accompanied
with affidavits showing the fraud, accident, mistake, or
excusable negligence relied upon, and the facts
constituting the petitioners good and substantial
cause of action or defense, as the case may be.
Both periods must concur. They are also non-
extendible and never interrupted.
CONTENTS OF PETITION
Rule 38, Sec.2. Petition for relief from denial of
appeal.When a judgment of final order is rendered
by any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a
petition in such court and in the same case praying
that the appeal be given due course.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Under both grounds, the petition shall be filed in
the same court which rendered the judgment
and in the very same case.
Prayer in Petition for Relief from Judgment
That the judgment/order/proceeding be set
aside;
That the appeal be given due course.
Form and content of petition
Must be verified;
Must be accompanied by an affidavit showing
the fraud, accident, mistake or excusable
negligence relied upon;
The affidavit of merit accompanying the petition
must also show the facts constituting the
petitioners good and substantial cause of
action or defense.
An affidavit of merit serves as the jurisdictional
basis for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant denial of
the petition so long as the facts required to be set
out also appear in the verified petition.
When an Affidavit of Merit is Not Necessary
When there is lack of jurisdiction over the
defendant;
When there is lack of jurisdiction over the
subject matter;
When judgment was taken by default;
When judgment was entered by mistake or was
obtained by fraud; or
Other similar cases.
Two Hearings an a Petition for Relief from Judgment
Hearing to determine whether or not the
judgment should be set aside;
If option a) is in the affirmative, hearing upon the
merits of the case.
Other Remedies After Finality of Judgment
Action to Annul a Judgment
Certiorari
Collateral Attack of a Judgment that is Void on
its Face
ANNULMENT OF JUDGMENTS OR FINAL
ORDERS AND RESOLUTIONS
GROUNDS FOR ANNULMENT [Rule 47, Section 2]
Grounds for Annulment
Extrinsic Fraud
Extrinsic fraud - any fraudulent act of the prevailing
party in the litigation which is committed outside of the
trial of the case, whereby the unsuccessful party
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has been prevented from exhibiting fully his
case. [Tolentino v. Leviste (2004)]
Fraud is regarded as extrinsic where it prevents
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 judgment
itself but to the manner in which it is procured.
[Tolentino v. Leviste (2004)]
Rationale: Party is prevented from having his
day in court [Tolentino v. Leviste (2004)]
Note: Extrinsic fraud shall not be a valid ground
if it was availed of, or could have been availed
of, in a motion for new trial or petition for relief.
[Rule 47, Sec. 2]
Lack of Jurisdiction
General Rule: Before a party can avail of the
reliefs provided for by Rule 47, it is a condition sine
qua non that one must have failed to move for new
trial in, or appeal from, or file a petition for relief
against said issuances or take other appropriate
remedies thereon, through no fault attributable to
him. If he failed to avail of those cited remedies
without sufficient justification, he cannot resort to
the action for annulment, for otherwise he would
benefit from his own inaction or negligence.
[Lazaro v. Rural Bank of Francisco Balagtas
(2003)]
Exception: Stringent rules of procedures may be
relaxed to serve the demands of substantial
justice and in the Court's exercise of equity
jurisdiction [Almelor v. RTC of Las Pias (2008)]
PERIOD TO FILE ACTION [Rule 47, Sec. 3]
The period to file action for annulment of
judgment is dependent on the grounds:
If it is based on extrinsic fraud, the action must
be filed within 4 years from its discovery
If it is based on lack of jurisdiction, the action
must be filed before it is barred by laches or
estoppels
EFFECTS OF JUDGMENT OF ANNULMENT [Rule 47, Sec. 7]
Effect: The judgment of annulment shall:
set aside the questioned judgment or final order
or resolution; and
render the same null and void
Note: The judgment is without prejudice to the original
action being refiled in the proper court. Also, where
the judgment or final order or resolution is set aside
on the ground of extrinsic fraud, the court may on
motion order the trial court to try the case as if a
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
timely motion for new trial had been granted
therein.
COLLATERAL ATTACK OF JUDGMENTS
REMEDIES FROM A VOID JUDGMENT (Asked in the 2004
Bar Exams)
WHAT IS A VOID JUDGMENT?
A void judgment is no judgment at all. It cannot be
the source of any right nor the creator of any
obligation. All acts performed pursuant to it and all
claims emanating from it have no legal effect.
Hence, it can never become final and any writ of
execution based on it is void. [Polystyrene
Manufacturing v. Privatization Management (2007)]
A void judgment may be likened to a lawless thing
which can be treated as an outlaw and slain at
sight, or ignored wherever and whenever it rears its
head. [Banco Espanol-Filipino v. Palanca (1918)]
A judgment may be void for lack of due process of
law. [Spouses Benatiro v. Heirs of Cuyos (2008))
HOW DO YOU ATTACK A VOID JUDGMENT?
It may be assailed anytime, collaterally or in a
direct action or by resisting such judgment or
final order in any action or proceeding whenever
it is invoked, unless barred by laches. [Spouses
Benatiro v. Heirs of Cuyos (2008))
WHAT ARE YOUR REMEDIES?
If the reglementary period for appeal has not yet
lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and
Other Appropriate Remedies such as Certiorari
may also be used.
If the appropriate remedies are no longer
available without the fault of the petitioner, the
equitable and extraordinary remedy of Petition
for Annulment of Judgment may be resorted to.
When all else fails, there is jurisprudence to the
effect that a patently void judgment may be dealt
with by a Main Action for Injunction. [See
Barrameda v. Moir (1913)]
SOME JURISPRUDENTIAL BASIS
Remedial Law Jurisprudence such as Spouses
Benatiro v. Heirs of Cuyos, (2008) and Agustin v.
Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against
a void judgment. This remedy, however, should
be availed of only when the appropriate
remedies are no longer available without fault on
the part of the petitioner.
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Although Section 2 of Rule 47 of the Rules of Court
provides that annulment of a final judgment or order
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction," jurisprudence
recognizes denial of due process as additional ground
therefore (Spouses Benatiro Case).
Montinola v. Judge Gonzales (1989): a void
judgment is like an outlaw which may be slain at
sight wherever or whenever it exhibits its head.
The proper remedy in such case, after the time for
appeal or review has passed, is for the aggrieved
party to bring an action to enjoin the judgment.
Assuming the judgment to have been void as
alleged by the proponent of this motion, the proper
remedy was by an original proceeding and not by
motion in the cause" [Banco Espanol v. Palanca
(1918)]. A final judgment may be annulled on the
ground of lack of jurisdiction, fraud, or that it is
contrary to law. [Panlilio v. Garcia (1982)]
Execution, Satisfaction
and Effect of Judgments
DIFFERENCE BETWEEN FINALITY OF
JUDGMENT FOR PURPOSES OF APPEAL;
FOR PURPOSES OF EXECUTION
The term finality of judgment for purposes of
appeal refers to interlocutory orders which:
are not decisions within the constitutional
definition [Armargo v. CA (1973)]
are those that determine incidental matters that do
not touch on the merits of the case or put an
end to proceedings. The following are
examples of an interlocutory order:
an order denying a motion to dismiss;
an order granting an extension of time to file a
pleading, or one authorizing an amendment
thereof;
order granting or denying applications for
postponement or inspection of documents.
[Riano]
The word interlocutory refers to something
intervening between the commencement and the
end of a suit which decides some point or matter
but is not a final decision of the whole controversy.
[Ramiscal, Jr. v. Sandiganbayan (2004)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
A final judgment or order is one that finally disposes of
a case, leaving nothing more to be done by the Court
in respect thereto, e.g., an adjudication on the merits
which, on the basis of the evidence presented at the
trial, declares categorically what the rights and
obligations of the parties are and which party is in the
right; or a judgment or order that dismisses an action
on the ground, for instance, of res judicata or
prescription. Once rendered, the task of the Court is
ended, as far as deciding the controversy or
determining the rights and liabilities of the litigants is
concerned. Nothing more remains to be done by the
Court except to await the parties' next move (which
among others, may consist of the filing of a motion for
new trial or reconsideration, or the taking of an
appeal) and ultimately, of course, to cause the
execution of the judgment once it becomes 'final or, to
use the established and more distinctive term, 'final
and executory.
The proper remedy to question an improvident
interlocutory order is a petition for certiorari
under Rule 65, not Rule 45. A petition for review
under Rule 45 is the proper mode of redress to
question only final judgments. [Investments, Inc.
v. Court of Appeals(1987)]
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. [Rule 39, Sec. 1]
It can be noted that the Supreme Court made a
hairline distinction between finality of order for
appeals and for execution. It is submitted that upon
courts issuance of a judgment touching upon the
merits of a case, it is final for the purposes of an
appeal, but NOT for execution. Finality for the
purposes of execution refers to the expiration of
the period to appeal and no appeal was perfected.
WHEN EXECUTION SHALL ISSUE
General rule: When the judgment or order
becomes executory, the court cannot refuse to
issue a writ of execution.
Exceptions: The issuance of a writ of execution
which issues as a matter of right can be countered
in any of the following cases (R-I-N-S-E-D):
When a PETITION FOR RELIEF or an action to
enjoin judgment is filed and a preliminary
injunction is prayed for and granted (Rule 38,
Sec. 5);
When the judgment turns out to be INCOMPLETE OR
IS CONDITIONAL since as a matter of law, such
judgment CANNOT BE FINAL;
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When the judgment has been NOVATED BY
THE PARTIES
When SUBSEQUENT FACTS AND
CIRCUMSTANCES transpire as to render
such execution unjust or impossible
On EQUITABLE GROUNDS as when there has
been a change in the situation of the parties
which makes execution INEQUITABLE.
When the judgment becomes DORMANT, the 5-
year period under Rule 39.6 having expired
without the judgment having been revived.
AEXECUTION AS A MATTER OF RIGHT
See Annex D.
General rule: An ex parte motion for the
issuance of the writ of execution would suffice
since the trial court may take judicial notice of
the record of the case to determine the propriety
of the issuance thereof.
Exception: However when the losing party shows that
subsequent facts had taken place which would render
the execution unjust, a hearing on the motion should
be held. [Luzon Surety v. Beson (1976)]
General rule: An appeal seasonably perfected
shall stay the execution of the judgment, unless
discretionary execution is granted by the court.
Exceptions: However, judgments in the following
action, despite perfection of an appeal, shall be
executed, unless the court orders otherwise:
injunction
receivership
accounting
support
such other judgments as shall now or may
hereafter be declared to be immediately
executory
Judgments in these actions shall be enforceable
after their rendition and shall not, be stayed by an
appeal taken therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.
General rule: A final and executory judgment or
order may be executed on motion within five (5)
years from the date of its entry. [Rule 39, Sec. 6]
After the lapse of such time, and before it is
barred by the statute of limitations, a judgment
may be enforced by action.
The revived judgment may also be enforced by
motion within five (5) years from the date of its entry
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
and thereafter by action before it is barred by the
statute of limitations.
The maximum period within which a final and
executory judgment may be executed is 20
years [Rule 39, Sec. 6 in relation to New Civil
Code provision on prescription of judgment]
Exceptions:
Judgments for support WHICH DO NOT BECOME
DORMANT AND WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez (1984)] except
for support in arrears beyond 10 years from the
date they become due;
Contempt orders by reason of unauthorized
reentry on the land by the ejected defendant
[Azotes v. Blanco (1947)];
Issuance of writs of possession in FORECLOSURE
CASES within the statute of limitations;
Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT OF
POSSESSION THEREIN NEVER PRESCRIBES
DISCRETIONARY EXECUTION
See Annex E.
General rule: Under the Rule on Discretionary
Execution (also called execution pending appeal),
the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal (Asked in the 2002 Bar
Exam). It is the execution of a judgment or final
order before it attains finality. The court which
rendered the decision can grant an execution
pending appeal if it still retains jurisdiction over the
case and is in possession of the records at the
time of the filing of the motion; otherwise, the
motion shall be acted upon by the appellate court.
To be valid, there should be a good reason to
justify the execution of the judgment pending
appeal, the same to be stated in the order granting
it.
Exception: This rule, however, is inapplicable in
the case of the Court of Appeals.
(a) The Rule on Discretionary Execution
contemplates a situation where a judgment or
final order rendered in the exercise of its
original jurisdiction and the prevailing party in
said decision seeks immediate execution
during the pendency of an appeal.
The CA has no authority to issue IMMEDIATE
EXECUTION PENDING APPEAL OF ITS OWN
DECISIONS THEREIN.
Discretionary execution is allowed pending appeal of
judgment or final order of the trial court upon good
reasons to be stated in a special order.
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Heirs of Justice J.B.L. Reyes v. CA (2000): A
judgment of the ca cannot be executed pending
appeal. It is acquired either by the arrest of the
accused or by his voluntary appearance in court.
General rule: The filing of a supersedeas bond is
sufficient to stay the enforcement of a
discretionary execution.
Exception: However, THE FILING OF SUPERSEDEAS
BOND does not entitle the judgment debtor to the
suspension of execution as a MATTER OF RIGHT.
Where the needs of the prevailing party are URGENT,
the Court can order immediate execution despite such
SUPERSEDEAS BOND. [Regalado]
HOW A JUDGMENT IS EXECUTED
EXECUTIONBY MOTION OR BY INDEPENDENT ACTION
[Rule 39, Sec. 6]
When judgment/order may be executed by
motion Within 5 years from the date of its entry
When judgment/order may be executed by
independent action
After the lapse of 5 years from date of its entry and
before it is barred by the statute of limitations
Note: The revived judgment may be enforced by
motion within five (5) years from the date of its
entry and thereafter by action before it is barred
by the statute of limitations.
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION
[Rule 39, Sec. 8]
Writ of Execution
Issued in the name of of the Republic of the
Philippines from the court which granted the
motion;
state the name of the court, the case number
and title, the dispositive part of the subject
judgment or order; and
require the sheriff or other proper officer to
whom it is directed to enforce the writ
according to its terms
Manner of Execution
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;
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;
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
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;
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
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 movant.
EXECUTION OF JUDGMENTS FOR MONEY (asked in
the 2007 Bar Exam)
Immediate payment on
demand Procedure
The sheriff or executing officer demands from
the judgment obligor the immediate payment of
the full amount stated in the writ of execution
and all lawful fees.
The judgment obligor shall pay in cash, certified
bank check payable to the judgment obligee, or
ANY OTHER FORM OF PAYMENT
ACCEPTABLE TO THE LATTER (e.g., dacion
en pago), the amount of the judgment debt
under proper receipt directly to the judgment
obligee or his authorized representative if
present at the time of payment.
The lawful fees shall be handed under proper
receipt to the executing sheriff who shall turn
over the said amount within the same day to the
clerk of court of the court that issued the writ.
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If the judgment obligee or his authorized
representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within
the same day to the clerk of court of the
court that issued the writ, or if the same is
not practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the Regional Trial Court
of the locality.
The clerk of said court shall thereafter
arrange for the remittance of the deposit to
the account of the court that issued the writ
whose clerk of court shall then deliver said
payment to the judgment obligee in
satisfaction of the judgment.
The excess, if any, shall be delivered to the
judgment obligor while the lawful fees shall
be retained by the clerk of court for
disposition as provided by law. In no case
shall the executing sheriff demand that any
payment by check be made payable to him.
If the judgment obligor cannot pay all or part
of the obligation in cash, certified bank check
or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon:
the properties of the judgment obligor of
every kind and nature whatsoever which
may be disposed, of for value, and
not otherwise exempt from execution
The sheriff gives the judgment obligor the
option as to which of the property or part
thereof may be levied upon, sufficient to
satisfy the judgment.
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 judgment.
The sheriff shall sell only a sufficient portion of
the personal or real property of the judgment
obligor which has been levied upon.

Satisfaction by levy
Nature
Levy means the act or acts by which an officer
sets apart or appropriates a part or the whole of
the property of the judgment debtor for purposes
of the prospective execution sale [Llenares v.
Vandevella (1966)].
When there is more property of the judgment
obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of the
personal or real property as is sufficient to satisfy
the judgment and lawful fees.

If susceptible of appropriation, the officer

removes and takes the property for safekeeping; Levy Garnishment
otherwise the same is placed under sheriffs
guards. Without valid levy having been made,
any sale of the property thereafter is void. seizure of property, the process of notifying a
personal and/or real, third person (the
belonging to the garnishee) to retain and
Procedure judgment debtor for attach the property he
subsequent execution has in his possession or
sale to satisfy judgment under his control
Garnishment is belonging to the
judgment debtor, to
make disclosure to the
court concerning the
same, and to dispose of

PAGE 97
UP COLLEGE OF LAW CIVIL PROCEDURE
Levy Garnishment
the same as the court
shall direct to satisfy the
judgment. (Sec. 9, Rule
39)
Garnishment of debts and
credits Definition
Garnishment has been defined as a specie of
attachment for reaching credits belonging to the
judgment debtor and owing to him from a
stranger to the litigation [BPI v. Lee (2012)]
Scope
The officer may levy on debts due the judgment
obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other
personal property not capable of manual delivery in
the possession or control of third parties.
The process of levying shall be called garnishment
if the property involved is money, stocks, or other
incorporeal property in the HANDS OF THIRD
PERSONS. Garnishment merely sets apart such
funds but does not constitute the creditor as owner
of the garnished property.
Garnishment is not a violation of RA 1405 on the
secrecy of bank deposits. [Chinabank v. Ortega
(1973)]
Notes: Upon service of the writ of garnishment, the
garnishee becomes a virtual party or forced
intervenor to the case and the trial court thereby
acquires jurisdiction to bind the garnishee to comply
with its orders and processes. [BPI v. Lee (2012)]
UPs funds, being government funds, are not subject
to garnishment. Moreover, The execution of the
monetary judgment against the UP was within the
primary jurisdiction of the COA. [UP v. Dizon (2012)]
Procedure
Levy shall be made by SERVING NOTICE
UPON THE PERSON OWING SUCH DEBTS
OR HAVING IN HIS POSSESSION OR
CONTROL SUCH CREDITS TO WHICH THE
JUDGMENT OBLIGOR IS ENTITLED. The
garnishment shall cover only such amount as
will satisfy the judgment and all lawful fees.
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BAR OPERATIONS COMMISSION
The garnishee shall make a WRITTEN
REPORT to the court within five (5) days
from service of the notice of garnishment
stating whether or not the judgment obligor
has sufficient funds or credits to satisfy the
amount of the judgment. If not, the report
shall state how much funds or credits the
garnishee holds for the judgment obligor.
The garnished amount in cash, or certified
bank check issued in the name of the
judgment obligee, shall BE DELIVERED
DIRECTLY TO THE JUDGMENT OBLIGEE
within ten (10) working days from service of
notice on said garnishee requiring such
delivery, except the lawful fees which shall be
paid directly to the court.
In the event there are two or more garnishees
holding deposits or credits sufficient to satisfy
the judgment, the judgment obligor, if available,
shall have the right to indicate the garnishee or
garnishees who shall be required to deliver the
amount due, otherwise, the choice shall be
made by the judgment obligee.
The executing sheriff shall observe the
same procedure under IMMEDIATE
PAYMENT ON DEMAND with respect to
delivery of payment to the judgment obligee.
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS
Conveyance, delivery of deeds, or other specific
acts Under this situation, there is a judgment which
directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other
documents, or to perform, any other specific act IN
CONNECTION THEREWITH.
If the party so ordered fails to comply within a
specified period, there are two possible
remedies. Either:
the court may DIRECT THE ACT TO BE DONE AT
THE COST OF THE DISOBEDIENT PARTY by
some other person appointed by the court and
the act when so done shall have like effect as if
done by the party, or
UP COLLEGE OF LAW
if real or personal property is situated within the
Philippines, the court in lieu of directing a
conveyance thereof may by an order divest
the title of any party and vest it in others,
which shall have the force and effect of a
conveyance executed in due form of law.
Sale of real or personal property
If judgment is rendered ordering the sale of real or
personal property, an order for execution shall be
issued describing such property as may be ordered
sold, selling it, and applying the proceeds in
conformity with the judgments instructions.
Delivery or restitution of real property
The officer shall demand of the person against
whom the judgment for the delivery or restitution of
real property is rendered and all persons claiming
rights under him to peaceably vacate the property
within three (3) working days, and restore
possession thereof to the judgment obligee.
Otherwise, the officer shall oust all such persons
therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to
retake possession, and place the judgment
obligee in possession of such property.
Any costs, damages, rents or profits awarded by
the judgment shall be satisfied in the same
manner as a judgment for money.
Removal of improvements on property
subject of execution
When the property subject of the execution contains
improvements constructed or planted by the judgment
obligor or his agent, the officer shall not destroy,
demolish or remove said improvements except upon
special order of the court, issued upon motion of the
judgment obligee after the hearing and after the
former has failed to remove the same within a
reasonable time fixed by the court.
Delivery of personal property
In judgment for the delivery of personal property, the
officer shall take possession of the same and
forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided.
EXECUTION OF SPECIAL JUDGMENTS
When a judgment requires the performance of any
act other than those mentioned in the two preceding
sections (execution of judgment for money and
specific acts), 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
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
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.
Special judgments are those which can be complied
with by the judgment obligor because of his personal
qualifications or circumstances (e.g., a judgment
ordering a partner to render an accounting, a
judgment ordering a party to comply with his
recording contract otherwise, pay damages).
Note the difference with sections 9 and 10 (on
execution of money judgments and specific acts)
where contempt is not a remedy against
disobedience by a party.
EFFECT OF LEVY ON THIRD PERSONS [Rule 39, Sec. 12]
Effect
The levy on execution shall create a lien in favor
of the judgment obligee over the right, title and
interest of the judgment obligor in such property
at the time of the levy, subject to liens and
encumbrances then existing.
PROPERTIES EXEMPT FROM EXECUTION
General rule: Except as otherwise expressly provided
by law, the following property, and no other, shall be
exempt from execution: (FOTNUP-LBS-GMRE)
The judgment obligor's family home as provided
by law, or the homestead in which he
resides, and land necessarily used in
connection therewith;
Ordinary tools and implements personally used by
him in his trade, employment, or livelihood;
Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment
obligor may select necessarily used by him in
his ordinary occupation;
His necessary clothing and articles for ordinary
personal use, excluding jewelry;
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 one hundred thousand pesos;
Provisions for individual or family use sufficient
for four months;
The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists,
engineers, surveyors, clergymen, teachers, and
other professionals, not exceeding three hundred
thousand pesos in value;
One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;
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UP COLLEGE OF LAW
So much of the salaries, wages, or earnings of the
judgment obligor for his personal services
within the four months preceding the levy as
are necessary for the support of his family;
Lettered gravestones;
Monies, benefits, privileges, or annuities
accruing or in any manner growing out of
any life insurance;
The right to receive legal support, or money or
property obtained as such support, or any
pension or gratuity from the Government;
Properties specially exempted by law. (e.g.,
property mortgaged to the DBP [Section 26,
CA 458]; savings of national prisoners
deposited with the POSTAL SAVINGS BANK
[Act 2489]; benefits from private retirement
systems of companies and establishments
with limitations [RA 4917]; laborers wages
except for debts incurred for food, shelter,
clothing and medical attendance [ART 1708,
CIVIL CODE]; benefit payments from SSS
[Section 16, RA 1161 AS AMENDED])
Exception: However, no article or species of property
mentioned in this section shall be exempt from:
execution issued upon a judgment recovered for
its price, or
upon a judgment of foreclosure of a mortgage
thereon.
Herrera v. Mcmicking (1909): The exemptions
MUST BE CLAIMED, otherwise they are
deemed waived. It is not the duty of the sheriff to
set off the exceptions on his own initiative.
Return of Writ of Execution
The writ of execution shall be returnable to the
court issuing it immediately after the judgment
has been satisfied in part or in full.
If the judgment cannot be satisfied in full within
thirty (30) days after his receipt of the writ, the
officer shall report to the court and state the
reason therefor.
Such writ shall continue in effect during the
period within which the judgment may be
enforced by motion.
The officer shall make a report to the court every
thirty (30) days on the proceedings taken
thereon until the judgment is satisfied in full, or
its effectivity expires.
The returns or periodic reports shall set forth the
whole of the proceedings taken, and shall be filed
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
with the court and copies thereof promptly
furnished the parties. [Rule 39, Sec. 12]
Notice Requirement
Before the sale of property on execution, notice
thereof must be given as follows:
In case of perishable property, by posting written
notice of the time and place of the sale in three
(3) public places, preferably in conspicuous
areas of the (CPM) municipal or city hall, post
office and public market in the municipality or
city where the sale is to take place, for such
time as may be reasonable, considering the
character and condition of the property;
In case of other personal property, by posting a
similar notice in the three (3) public places
above-mentioned for not less than five (5) days;
In case of real property, by posting for twenty (20)
days in the three (3) public places
abovementioned a similar notice particularly
describing the property and stating where the
property is to be sold, and if the assessed value
of the property exceeds fifty thousand
(P50,000.00) pesos, by publishing a copy of the
notice once a week for two (2) consecutive
weeks in one newspaper selected by raffle,
whether in English, Filipino, or any major
regional language published, edited and
circulated or, in the absence thereof, having
general circulation in the province or city;
In all cases, written notice of the sale shall be
given to the judgment obligor, at least three
(3) days before the sale, except as provided
in paragraph (a) hereof where notice shall be
given the same manner as personal service
of pleadings and other papers as provided by
section 6 of Rule 13.
The notice shall specify the place, date and exact
time of the sale which should not be earlier than
nine o'clock in the morning and not later than two
o'clock in the afternoon (9am-2pm).
The place of the sale MAY BE AGREED UPON BY
THE PARTIES. In the absence of such agreement,
the sale of the property or personal property not
capable of manual delivery shall be held in the office
of the clerk of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of or which
was designated by the appellate court.
In the case of personal property capable of manual
delivery, the sale shall be held in the place where
the property is located. [Rule 39, Sec. 15]
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UP COLLEGE OF LAW CIVIL PROCEDURE
PENALTIES
(Selling without notice and defacing notice)
An officer selling without A person willfully
the notice prescribed by removing or defacing the
section 15 of this Rule notice posted
pay punitive damages in if done before the sale, or
the amount of P5,000 before the satisfaction of
to any person injured the judgment if it be
thereby, in addition to satisfied before the sale,
his actual damages, shall be liable to pay
both to be recovered by P5,000 to any person
motion in the same injured by reason thereof,
action in addition to his actual
damages, to be
recovered by motion in
the same action
Preventing Execution Sale
At any time before the sale of property on execution,
the judgment obligor may prevent the sale by paying
the amount required by the execution and the costs
that have been incurred therein. [Rule 39, Sec. 18]
This is akin to the equitable right of redemption under
Rule 68, which is available to the judgment obligor
in judicial foreclosure of mortgage.
The difference lies in the fact that under Rule 68,
a definite period is given.
Concluding the Execution Sale
When the purchaser is the judgment obligee,
and no third-party claim has been filed, he need
not pay the amount of the bid if it does not
exceed the amount of his judgment. If it does, he
shall pay only the excess. [Rule 39, Sec. 21]
By written consent of the judgment obligor and
obligee, or their duly authorized representatives, the
officer may adjourn the sale to any date and time
agreed upon by them. Without such agreement, he
may adjourn the sale from day to day if it becomes
necessary to do so for lack of time to complete the
sale on the day fixed in the notice or the day to which
it was adjourned [Rule 39, Sec. 22]. Written consent is
essential, otherwise the adjournment will be void
[Abrozar v. IAC (1988)]
Upon a sale of real property, the officer must give
to the purchaser a certificate of sale containing:
A particular description of the real property sold;
The price paid for each distinct lot or parcel;
The whole price paid by him;
A statement that the right of redemption expires one
(1) year from the date of the registration of the
certificate of sale. Such certificate must be
registered in the registry of deeds of the place
where the property is situated. [Rule 39, Sec. 25]
PAGE 101
BAR OPERATIONS COMMISSION
How property sold on execution (See table on
Service of summons upon different entities)
PROCEEDINGS WHERE PROPERTY IS
CLAIMED BY THIRD PERSONS
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT
AND REPLEVIN
Remedies of a Third-Party Claimant
Summary hearing before the court which
authorized the execution
Terceria or third-party claim filed with the
sheriff
Action for damages on the bond posted by the
judgment creditor
Independent reivindicatory action
The aforementioned are cumulative remedies and
may be resorted to by a third-party claimant
independently of or separately from and without need
of availing of the others. [Sy v. Discaya (1990)]
Rules regarding terceria (third-party claims)
(asked in the 2000 & 2005 bar exams)
The third person whose property was levied
on must make an affidavit of his title thereto
or right to the possession thereof stating the
grounds of such right or title. He must serve
the same upon the officer making the levy
and copy thereof upon the judgment obligee.
The officer shall not be bound to keep the
property as a general rule.
Sheriff is bound to keep the property when the
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 of
the bond, the same shall be determined by
the court issuing the writ of execution.
Apart from Rule 39, the only other provisions of
the Rules of Court dealing with terceria or third
party claims are Rule 57, Sec. 14 on preliminary
attachment and Rule 60, Sec. 7 on replevin.
Northern Motors v. Coquia (1975): The third party
claimant CANNOT APPEAL NOR AVAIL OF
UP COLLEGE OF LAW
CERTIORARI AS A REMEDY in the event that
his claim was denied since HE IS A NONPARTY
to the original action.
Intervention by a third-party claimant whose
property had been levied upon by the sheriff in
the action from which the writ pursuant to which
the levy was made was issued must be made
before rendition of judgment by the trial court.
He can no longer intervene once the trial court
already issues a writ of execution. [Bautista]
RULES ON REDEMPTION
There is no right of redemption where the property
sold at judicial sale is personal property.
Real property sold or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:
The judgment obligor; or his successor in
interest in the whole or any part of the
property;
A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor
is termed a redemptioner. [Rule 39, Sec. 27]
Redemption can be made by either:
JUDGMENT OBLIGOR, within one year from
the date of registration of the certificate of
sale
REDEMPTIONER, within one year from the
date of registration of the certificate of
sale; or within 60 days from the last
redemption by another redemptioner.
BUT IN ALL CASES, the judgment obligor
shall have the entire period of 1 YEAR
from the date of registration of the sale to
redeem the property.
IF THE JUDGMENT OBLIGOR REDEEMS,
no further redemption is allowed and he is
restored to his estate.
THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED by an action to annul the
foreclosure sale.
If the certificate of sale is not registered, the period
for redemption does not run [Garcia v. Ocampo
(1959)]. But where parties agreed on the date
of redemption, the statutory period for legal
redemption was converted into one of
conventional redemption and the period binding
on them is that agreed upon. [Lazo v. Republic
Surety & Insurance Co., Inc (1970)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
The right of redemption is transferable and may be
voluntarily sold [Gomez v. La Germinal (1918)]
but said right cannot be levied upon by the
judgment creditor. The creditor may not deprive
the debtor of any further rights to the property
[Lichauco v. Olegario (1922)]
In effecting redemption, the mortgagor has the duty of
tendering payment (actual tender of payment of
the redemption price) before the redemption
period expires. [Banco Filipino Savings and
Mortgage Bank v. CA (2005)] However, neither to
make an offer to redeem nor to make tender of
payment of the repurchase price is necessary
when the right to redeem is exercised through the
filing of a complaint to redeem. The filing of an
action to redeem within that period is equivalent to
a formal offer to redeem. [Vda. de Panaligan v. CA
(1996)]
Redemption price varies depending on who the
redemptioner is:
If judgment obligor: Purchase price
1 % interest thereon up to the time of
redemption
Any amount of assessments or taxes which the
purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate.
If the purchaser be also a creditor having
prior lien to that of the redemptioner,
other than the judgment under which
such purchase was made, the amount of
such other lien, with interest.
If redemptioner: Amount paid on the last
redemption
2% interest thereon.
Any amount of assessments or taxes which
the last redemptioner may have paid
thereon after redemption by him with
interest on such last named amount;
Amount of any liens held by said last
redemptioner prior to his own with interest
EFFECTS OF REDEMPTION
[Rule 39, Sec. 29]
If the judgment obligor redeems he must make
the same payments as are required to effect
a redemption by a redemptioner, whereupon,
no further redemption shall be allowed and
he is restored to his estate.
The person to whom the redemption payment is made
must execute and deliver to him a certificate of
redemption acknowledged before a notary public
or other officer authorized to take
PAGE 102
UP COLLEGE OF LAW CIVIL PROCEDURE
acknowledgments of conveyances of real
property.
Such certificate must be filed and recorded in
the registry of deeds of the place in which the
property is situated and the registrar of deeds
must note the record thereof on the margin of
the record of the certificate of sale.
The payments mentioned in this and the last
preceding sections may be made to the
purchaser or redemptioner, or for him to the
officer who made the sale.
[Rule 39, Sec. 30]
A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and
serve with his notice to the officer
a copy of the judgment or final order under
which he claims the right to redeem, certified
by the clerk of the court wherein the
judgment or final order is entered, OR,
if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified
by the registrar of deeds, OR
an original or certified copy of any assignment
necessary to establish his claim; AND
an affidavit executed by him or his agent,
showing the amount then actually due on the
lien.
[Rule 39, Sec. 31]
Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on
the property by injunction, on the application
of the purchaser or the judgment obligee,
with or without notice;
but it is not waste for a person in possession of the
property at the time of the sale, or entitled to
possession afterwards, during the period allowed
for redemption, to continue to use it in the same
manner in which it was previously used, or to use
it in the ordinary course of husbandry; or to make
the necessary repairs to buildings thereon while
he occupies the property.
The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and
income of the property sold on execution, or the
value of the use and occupation thereof when
such property is in the possession of a tenant.
All rents, earnings and income derived from the
property pending redemption shall belong to
the judgment obligor until the expiration of his
period of redemption. In all, the judgment
debtor shall exercise the following rights:
Remain in possession of the property
He cannot be ejected;
PAGE 103
BAR OPERATIONS COMMISSION
Use the property in the same manner it was
previously used;
Make Necessary repairs to buildings thereon
while he occupies the property
Use it in the ordinary course of husbandry
Collect rents, earnings and income derived
from the property until the expiration of
period of redemption.
[Rule 39, Sec. 33]
If no redemption be made within one (1) year from
the date of the registration of the certificate of
sale, the purchaser is entitled to a conveyance
and possession of the property; or,
if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time for
redemption has expired, the last redemptioner
is entitled to the conveyance and possession;
but in all cases the judgment obligor shall have
the entire period of one (1) year from the date
of the registration of the sale to redeem the
property.
The deed shall be executed by the officer
making the sale or by his successor in office,
and in the latter case shall have the same
validity as though the officer making the sale
had continued in office and executed it.
Upon the expiration of the right of redemption, the
purchaser or redemptioner shall be substituted
to and acquire all the rights, title, interest and
claim of the judgment obligor to the property as
of the time of the levy.
The possession of the property shall be given to
the purchaser or last redemptioner by the
same officer unless a third party IS
ACTUALLY HOLDING THE PROPERTY
adversely to the judgment obligor.
RECOVERY OF PURCHASE PRICE AND REVIVAL OF
JUDGMENT:
A judgment co-debtor may compel a contribution
from the others:
When property liable to an execution against
several persons is sold thereon, and
more than a due proportion of the judgment is
satisfied out of the proceeds of the sale of
the property of one of them, or
one of them pays, without a sale, more than
his proportion,
A surety may compel repayment from the
principal:
When a judgment is upon an obligation of one of
them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of
his property or before sale. [Section 35, Rule 39].
UP COLLEGE OF LAW
EXAMINATION OF JUDGMENT OBLIGOR WHEN
JUDGMENT IS UNSATISFIED [Rule 39, Sec. 36]
WHEN EXAMINATION MAY BE MADE
Any time after a return, stating that the judgment
remains unsatisfied, in whole or in part, is made
HOW
Court issued an order requiring the judgment
obligor to appear and be examined concerning
his property and income before such court or
before a commissioner appointed by it, at a
specified time and place; and proceedings may
thereupon be had for the application of the
property and income of the judgment obligor
towards the satisfactions of the judgment.
Note: Judgment obligor may not be required to
appear before a court or commissioner outside
the province or city in which such obligor resides
or is found.
EXAMINATION OF OBLIGOR OF JUDGMENT
OBLIGOR
DOES A PARTY LITIGANT ENJOY ANY DISCOVERY
RIGHTS AFTER THE PROMULGATION OF FINAL AND
EXECUTORY JUDGMENT?
Yes. See Secs. 36-38, Rule 39 [Bautista]
REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION
[Secs. 36-43]
(Asked in the 2008 Bar Exam particularly steps
to be taken if writ of execution is unsatisfied)
If the execution is returned unsatisfied, he may
cause the examination of the judgment
debtor as to his property and income [Sec.
36] (asked in the 2002 bar exam)
He may cause examination of the debtor of the
judgment debtor as to any debt owed by him
or to any property of the judgment debtor in
his possession [Sec. 37].
If after examination, the court finds the property
of the judgment debtor either in his own
hands or that of any person, the court may
order the property applied to the satisfaction
of the judgment.
A party or other person may be compelled by an order
or subpoena to attend before the court or
commissioner to testify as provided in sect 36-37.
if the court finds the earnings of the judgment
debtor are more than sufficient for his
familys needs, it may order payment in
installments [Sec. 40]
the court may appoint a receiver for the
property of the judgment debtor not exempt
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
from execution or forbid a transfer or
disposition or interference with such
property [Sec. 41]
if the court finds the judgment debtor had an
ascertainable interest in real property either
as mortgagor, mortgagee or otherwise, and
his interest can be ascertained without
controversy, the court may order a sale of
such interest [Sec. 42].
if the person alleged to have the property of
the judgment debtor or be indebted to him,
claims an adverse interest in the property
or denies the debt, the court may
authorize the judgment creditor to institute
an action to recover the property, forbid its
transfer and may punish disobedience for
contempt [Sec. 43]
ENTRY OF SATISFACTION
Satisfaction of a judgment shall be entered by
the clerk of court in the court docket, and in the
execution book,
upon the return of a writ of execution showing
the full satisfaction of the judgment, or
upon the filing of an admission to the satisfaction
of the judgment executed and acknowledged
in the same manner as a conveyance of real
property by the judgment obligee or by his
counsel
UNLESS a revocation of his authority is filed, or upon
the endorsement of such admission by the
judgment obligee or his counsel, on the face of the
record of the judgment. [Rule 39, Sec. 44]
Whenever a judgment is satisfied in fact, or
otherwise than upon an execution on demand of
the judgment obligor,
the judgment obligee or his counsel must
execute and acknowledge, or indorse an
admission of the satisfaction as provided in
the last preceding section,
and after notice and upon motion the court may
order either the judgment obligee or his
counsel to do so, or may order the entry of
satisfaction to be made without such
admission. [Rule 39, Sec. 45]
EFFECT OF JUDGMENT OR FINAL ORDERS
RES JUDICATA IN JUDGMENTS IN REM
Judgments or final order Conclusive as to
Against a specific thing Title of the thing
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(Asked in the 2005 Bar

to any other matter that could have been missed

Judgments or final order Conclusive as to
Probate of a will or The will or
administration of the administration. However,
estate of a deceased the probate of a will or
person granting of letters of
administration shall only
be prima facie evidence
of the death of the
testator or intestate;
IN RESPECT TO THE Condition, status or
PERSONAL, political, or relationship of the
legal condition or status person,
of a particular person or
his relationship to
another
RES JUDICATA IN JUDGMENTS IN PERSONAM
In other cases, the judgment or final order is,
with respect to the matter directly adjudged or as
in relation thereto, 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
under the same title and in the same capacity.
CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF
ISSUES (AUTER ACTION PENDANT)
In any other litigation between the same parties or
their successors in interest, that only is deemed to
have been adjudged in a former judgment or final
order which appears upon its face to have been so
adjudged, or which was actually and necessarily
included therein or necessary thereto.
Bar by former judgment Conclusiveness of
(res judicata) judgment
There is identity of Identity of parties and
parties, subject matter subject matter.
and causes of action
The first judgment The first judgment is
constitutes an absolute conclusive only as to
bar to all matters matters directly
directly adjudged and adjudged and actually
those that might have litigated in the first
been adjudged. action. Second action
can be prosecuted. it must be a judgment on the merits
there must be, between the first and second
REQUISITES OF RES JUDICATA actions, identity of parties, subject matter and
finality of the former judgment; causes of action [Perez v. CA (2005)]
the court which rendered it had jurisdiction over
the subject matter and the parties RES JUDICATA V. LAW OF THE CASE V. STARE DECISIS
[Ayala Corporation V. Rosa-Diana Realty, (2000)]
Res Judicata Law of the Stare Decisis
Case
The ruling in Operates only in
one case is the particular
carried over and single case
to another where the ruling
case between arises and is not
the same carried into
parties other cases as a
precedent
The ruling
Once a point of
adhered to
law has in
been
the particular
established by
case need not
the court, that
be followed as a
point of law will,
precedent
generally, inbe
subsequent
followed by the
litigation
same court and
between other
by all courts of
parties
lower rank in
subsequent
cases where the
same legal issue
is raised
ENFORCEMENT AND EFFECT OF FOREIGN

JUDGMENTS OR FINAL ORDERS

EFFECT OF FOREIGN JUDGMENTS

Exam)
In case of a judgment or final order upon a
specific thing, the judgment or final order, is
conclusive upon the title to the thing [Rule
39, Sec. 48]
In case of a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as between
the parties and their successors in interest by
a subsequent title [Rule 39, Sec. 48]
In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction, want
of notice to the party, collusion, fraud, or clear
mistake of law or fact [Rule 39, Sec. 48]
Such limitation on the review of foreign judgment
is adopted in all legal systems to avoid
repetitive litigation on claims and issues,
prevent harassment of the parties and avoid
undue imposition on the courts.
This policy of preclusion rests on principles of
comity, utility and convenience of nations.

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UP COLLEGE OF LAW CIVIL PROCEDURE
As a generally accepted principle of international law,
it is part of the law of the Philippines by virtue of
the Incorporation Clause [Section 2, Article II of
the 1987 Constitution] [Regalado]
Provisional Remedies
NATURE OF PROVISIONAL REMEDIES
DEFINITION
Writs and processes available during the pendency of
the action which may be resorted to by a litigant for
the preservation or protection of their rights and
interests therein pending rendition, and for purposes
of the ultimate effects, of a final judgment in the case;
also known as ancillary or auxiliary remedies.
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. [Calo v. Roldan (1946)]
Orders granting or denying provisional remedies
are merely interlocutory and cannot be the
subject of an appeal. They may however be
challenged before a superior court through a
petition for certiorari under Rule 65.
JURISDICTION OVER PROVISIONAL
REMEDIES All inferior courts can grant appropriate
provisional remedies provided that the main action
is within their jurisdiction. [B.P. 129, Section 33]
PRELIMINARY ATTACHMENT (Asked in the 2002
Bar Exam)
DEFINITION
A provisional remedy issued upon order of the
court where an action is pending to be levied
upon the property of the defendant so the
property may be held by the sheriff as security
for the satisfaction of whatever judgment may be
rendered in the case [Davao Light v CA ](1991)
A preliminary attachment may be applied for
at the commencement of the action or
at any time before the entry of judgment.
It may be applied for by the plaintiff OR any proper
party (including a defendant who filed a counterclaim,
cross-claim, or a third party complaint)
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BAR OPERATIONS COMMISSION
PURPOSES
To seize the property of the debtor in advance of
final judgment and to hold it for purposes of
satisfying the said judgment.
To enable the court to acquire jurisdiction over the
action by the actual or constructive seizure of
the property in those instances where personal
service of summons on the creditor cannot be
effected. [Quasha v. Juan (1982)]
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT
[Rule 57, Sec. 1] (Asked in 2001 and 2005)
There are only specific situations where
preliminary attachment may issue:
Action for recovery of a specified amount of
money or damages, EXCEPT 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 with intent to defraud his
creditors;
Action for money or property, embezzled or
fraudulently misapplied or converted to his
own use by either:
a public officer, an officer of a corporation, an
attorney, factor, broker, agent, or clerk, in
the course of his employment as such,
OR by any other person in a fiduciary
capacity, or for a willful violation of duty;
Action 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;
NOTE: rule makes no distinction between
real and personal property [Riano]
Action 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;
NOTE: the delivery of counterfeit money or
knowingly issuing a bounced check are
considered as grounds under this rule [Riano]
Action against a party who has removed or
disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or
UP COLLEGE OF LAW
Action against a party who does not reside and is
not found in the Philippines, OR on whom
summons may be served by publication.
Note: the rule also refers to persons on whom
summons may be served by publication and
against whose property, preliminary attachment
may be availed of such as:
Residents defendants whose identity or whose
whereabouts are unknown [Rule 14, Sec. 14]
Resident defendants who are temporarily out
of the country [Rule 14, Sec. 16]
Note: A writ of preliminary attachment is too harsh
a provisional remedy to be issued based on mere
abstractions of fraud. Rather, the rules require that
for the writ to issue, there must be a recitation of
clear and concrete factual circumstances
manifesting that the debtor practiced fraud upon
the creditor at the time of the execution of their
agreement in that said debtor had a
preconceived plan or intention not to pay the
creditor. [Equitable v. Special Steel (2012)]
Stages in the grant of preliminary attachment
The court issues the order granting the
application
The writ of attachment issues pursuant to the
order granting the writ
The writ is implemented
For the first two stages, jurisdiction over the
person of the defendant is NOT necessary.
However, once the implementation of the writ
commences, the court must have acquired
jurisdiction over the defendant. [Cuartero, supra]
REQUISITES
Case must be any of those where preliminary
attachment is proper
Applicant must file a motion (ex parte or with
notice and hearing)
Applicant must show by affidavit (under oath)
that there is no sufficient security for the
claim sought to be enforced;
Applicant must post an attachment bond executed
to the adverse party (Rule 57, Sec. 3)
ISSUANCE AND CONTENTS OF ORDER OF
ATTACHMENT; AFFIDAVIT AND BOND
Issuance and contents of order of
attachment [Rule 57, Sec. 2]
An order of attachment may be issued EITHER
ex parte or
upon motion with notice and hearing
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
by the court in which the action is pending,
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
applicant's demand, EXCEPT if such party
makes deposit or gives bond in an amount equal
to that fixed in the order. The amount may be
sufficient to satisfy applicants demand, or
the value of the property to be attached,
exclusive of costs.
Several writs may be issued at the same time to the
sheriffs of the courts of different judicial regions.
Contents of affidavit of applicant [Rule 57, Sec. 3]
An order of attachment shall be granted only
when it appears in the affidavit that:
a sufficient cause of action exists
the case is one of those mentioned in Rule 57.1
there is no other sufficient security for the claim
sought to be enforced by the action
the amount due to the applicant or the value of
the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims.
The affidavit and the bond must be filed with the
court before the order issues.
Condition of applicants bond [Rule 57, Sec.
4] Applicant must give a bond executed to the
adverse party in the amount fixed by the court in
its order granting the issuance of the writ
conditioned that the applicant will pay:
all the costs which may be adjudged to the
adverse party and
all damages which the adverse party may
sustain by reason of the attachment if the
court shall finally adjudge that the applicant
was not entitled thereto.
Note: the bond shall only be applied to all
damages sustained due to the attachment. It
cannot answer for those that do not arise by
reason of the attachment [Riano].
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE
OF SUMMONS
General Rule: A writ of attachment may be
issued ex parte even before the summons is
served upon the defendant. BUT a writ may not
be implemented until jurisdiction over the person
is acquired by service of summons. Otherwise,
the implementation is null and void. [Riano]
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UP COLLEGE OF LAW
Exceptions to Contemporaneous Service of
Summons: [Rule 57, Sec. 5]
Summons could not be served personally or by
substituted service despite diligent efforts, or
Defendant is a resident of the Philippines
temporarily absent therefrom, or
Defendant is a non-resident, or
The action is in rem or quasi in rem.
Sheriffs Return [Rule 57, Sec. 6]
The sheriff, after enforcing the writ, shall make a
return to the court which issued the writ stating
the ff:
a full statement of his proceedings under the writ
a complete inventory of the property attached,
together with any counter-bond given by the
party against whom attachment is issued
The sheriff shall serve copies of the return to the
applicant.
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY ;
WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON
Manner of attaching property [Rule 57, Sec. 5]
The sheriff enforcing the writ shall attach only so
much of the property in the Philippines of the adverse
party not exempt from execution as may be sufficient
to satisfy the applicants demand, UNLESS
Party against whom writ is issued makes a
deposit with the court from which the writ is
issued, or
He gives a counter-bond executed to the
applicant
The levy on attachment shall be preceded or
contemporaneously accompanied by service on
the defendant within the Philippines of:
summons
copy of complaint
application for attachment
affidavit and bond of applicant
order and writ of attachment.
Manner of attachment of real and personal property
[Rule 57, Sec. 7]:
Real property, or growing crops thereon, or
any interest therein
filing with the registry of deeds:
a copy of the order, together with a
description of the property attached,
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,
leaving a copy of such order, description, and
notice with the occupant of the property, if
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
any, or with such other person or his agent
if found within the province.
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.
Personal property capable of manual delivery
by taking and safely keeping it in the sheriffs
custody, after issuing the corresponding
receipt therefor;
Stocks or shares, or an interest in stocks or
shares, of any corporation or company
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;
Debts and credits, including bank deposits, financial
interest, royalties, commissions, and other personal
property not capable of manual delivery
by leaving with the person owing such debts,
or having in his possession or under his
control, such credits or other personal
property, or with his agent,
a copy of the writ, and
A notice that the debts owing by him to the
party against whom attachment is issued,
and the credits and other personal
property in his possession, or under his
control, belonging to said party, are
attached in pursuance of such writ;
Interest of the party whom attachment is issued in property
belonging to the estate of the decedent
by serving the executor or administrator or
other personal representative of the
decedent with a copy of the writ and notice
that said interest is attached and
By filing a copy of the writ and notice in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.
Note:
Property in custodia legis may be attached by:
PAGE 108
UP COLLEGE OF LAW
filing a copy of the writ of attachment with the
proper court or quasi-judicial agency
Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec. 7]
A previously attached property may also be
subsequently attached. But the first attachment
shall have priority over subsequent attachments.
[Riano]
Proceedings Where Attached Property
Claimed By Third Person
A third person who has a claim to the property
attached may avail of the following remedies:
By terceria making an affidavit of his title or
right to possession, stating the grounds of
such right or title. The affidavit must be
served upon the sheriff and the attaching
procedure [Rule 57, Sec. 14]
Note: the same procedure under Rule 39, Sec.
16 is followed
Motion for summary hearing on his claim
File a separate action to nullify the levy with
damages due to the unlawful levy and seizure.
The remedies stated are CUMULATIVE and any
one of them may be resorted to without availing
of the other remedies [Ching v. CA (2004)]
Effects of attachment
Attachment of debts, credits and all other
similar personal property [Rule 57, Sec. 8]
All persons
having in their possession or under their control
any credits or other similar personal property
belonging to the adverse party, or
owing any debts to him, at the time of service upon
them of the copy of the writ of attachment and
notice shall be liable to the applicant for the
amount of such credits, debts or other similar
personal property, until the attachment is
discharged, or any judgment recovered by him
is satisfied, unless such property is delivered or
transferred, or such debts are paid, to the clerk,
sheriff, or other proper officer of the court
issuing the attachment.
Garnishment. A species of attachment for
reaching the property or credits pertaining or
payable to a judgment debtor (asked in the 1999
Bar Exams in comparison with Attachment). It is
a warning to a person who has in possession
property or credits of the judgment debtor not to
pay the money nor deliver the property to latter
but to appear and answer the plaintiffs suit.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Perla Compania v. Ramolete, 1991: Service of
summons upon the garnishee is not necessary. All
that is necessary is the service upon him of the writ of
garnishment, as a consequence of which he becomes
a virtual party or a forced intervenor in the case.
Attachment of interest in property belonging
to the estate of a decedent [Rule 57, Sec. 9]
The attachment of the interest of an heir,
legatee, or devisee in the property belonging to
the estate of a decedent shall not impair the
power of the executor, administrator, or other
personal representative of the decedent over
such property for the purpose of administration.
When any petition for distribution is filed, such
personal representative shall report the attachment
to the court, and in the order made upon such
petition, distribution may be awarded to such heir,
legatee, or devisee, but the property attached shall
be ordered delivered to the sheriff making the levy,
subject to the claim of such heir, legatee, or
devisee, or any person claiming under him.
Sale of attached property
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 party attached is perishable, or that
the interests of all the parties to the action will be
will be subserved by the sale thereof,
the court may order such property to be sold at public
auction in such manner as it may direct, and the
proceeds of such sale to be deposited in court to
abide the judgment in the action. [Rule 57, Sec. 11]
NOTE: This is an exception to the general rule
that the issuance of a writ of attachment is only
a provisional remedy, thus no sale of the
property should be made during the pendency of
the action. [Riano]
DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND
Discharge of attachment
After a writ of attachment has been enforced,
the party whose property has been attached, or
the person appearing on his behalf, may move
for the discharge of the attachment wholly or in
part on the security given.
Grounds for discharge
Debtor has posted a counter-bond or has made the
requisite cash deposit [Rule 57, Sec. 12];
Attachment was improperly or irregularly issued [Rule
57, Sec. 13] as where there is no ground for
PAGE 109
UP COLLEGE OF LAW CIVIL PROCEDURE
attachment, or affidavit and/or bond filed
therefore are defective or insufficient;
Attachment is excessive but the discharge shall be
limited to the excess [Rule 57, Sec. 13];
Property attached is exempt from execution
[Rule 57, Sec. 2 and Rule 57, Sec. 5];
Judgment is rendered against the attaching
creditor [Rule 57, Sec. 19].
SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED
The sheriff may cause judgment to be satisfied
out of the property attached if it be sufficient for
that purpose in the following manner:
By paying to the judgment obligee the proceeds off all
sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
If any balance remains due, by selling so much of
the property, real or personal, as may be
necessary to satisfy the balance, if enough for
that purpose remain in the sheriffs hands, or in
those the clerk of the court;
By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the
time of the attachment of such credits or
debts, the amount of such credits or debts as
determined by the court in the action, and
stated in the judgment, and paying the
proceeds of such collection over to the
judgment obligee. [Rule 57, Sec. 15]
Balance due collected upon an execution;
excess delivered to the judgment obligor
If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment, any balance shall
remain due, the sheriff must proceed to collect
such balance as upon ordinary execution.
Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return
to the judgment obligor the attached property
remaining in his hands, and any proceeds of
the sale of the property attached not applied to
the judgment. [Rule 57, Sec. 16]
Recovery Upon the Counter-Bond; Disposition
of Deposit/ Attached Property After Judgment
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
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BAR OPERATIONS COMMISSION
or sureties after notice and summary hearing
in the same action. [Rule 57, Sec. 17]
Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under
the direction of the court to the satisfaction of
any judgment rendered in favor of the
attaching party, and after satisfying the
judgment the balance shall be refunded to
the depositor or his assignee.
If the judgment is in favor of the party against
whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. [Rule 57, Sec. 18]
If judgment be rendered against the attaching
party, 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 officer's
hands, shall be delivered to the party against
whom attachment was issued, and the order
of attachment discharged. [Rule 57, Sec. 19]
Improper, Irregular or Excessive Attachment
(Asked in the 2008 bar exam)
An application for damages must be filed before
the trial, or before appeal is perfected, or before
the judgment becomes executory.
Such damages may be awarded only after
hearing and shall be included in the judgment on
the main case. [Rule 57, Sec. 20]
Procedure for claiming damages is EXCLUSIVE.
Such claims for damages cannot be the subject
of an independent action.
Exceptions:
Where the principal case was dismissed for lack of
jurisdiction by the trial court without giving
opportunity to the party whose property was
attached to apply for and prove his claim; and
Where the damages by reason of the
attachment was sustained by a third person
who was not a party to the action wherein
such writ was issued. [Santos v. CA (1954)]
UP COLLEGE OF LAW CIVIL PROCEDURE
PRELIMINARY INJUNCTION
DEFINITIONS AND DIFFERENCES: DRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER;
STATUS QUO ANTE ORDER
A preliminary injunction is an order granted at
any stage of an action or proceeding prior to the
judgment or final order, requiring a party or a
court, agency or a person to either
refrain from a particular act or acts or
require the performance of a particular act or
acts, in which case it shall be known as a
preliminary mandatory injunction
A suit for injunction is an action in personam. It
is an ancillary or preventive remedy that is
meant to be temporary and subject to the final
disposition of the principal action [Riano]
Purpose
To prevent future injury and maintain the status
quo (i.e. the last actual, peaceable, uncontested
status which preceded the pending controversy)
for [Knecht v. CA, (1993)]
Note: the injunction should not establish new relations
between the parties but merely re-establish the pre-
existing relationship between them.
TRO vs. Injunction
TRO Injunction
May be granted ex parte Cannot begranted
if great and irreparable without noticeand
injury would result hearing
otherwise
A TRO is issued in order to preserve the status
quo until the hearing of the application for
preliminary injunction. [Bacolod City Water v.
Labayen (2004)]
Same requirements for application as
preliminary injunction.
An application for a TRO shall be acted upon
only after all parties are heard in a summary
hearing, which shall be conducted within 24
hours after the sheriff's return of service
and/or the records are received by the
branch selected by raffle. [Rule 58, Sec.4]
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Status Quo Order vs. Injunction (Asked in the
2006 bar exams)
A status quo order is in the nature of a cease and
desist order. It is resorted to when the projected
proceedings in the case made the conservation of
the status quo desirable or essential, but the
affected party neither sought such relief nor did the
allegations in his pleading sufficiently make out a
case for a temporary restraining order.
It does NOT direct the doing or undoing of acts
but is an order to maintain the last, actual,
peaceable and uncontested state of things
which preceded the controversy.
Status Quo Ante Order
Directs the maintenance of the condition prevailing
before the promulgation of the assailed decision.
It has the nature of a TRO. [Dojillo v.
COMELEC, 2006]
REQUISITES
Requirements for Preliminary Injunction
[Rule 58, Sec. 4]
There must be a verified application
The application must show facts entitling the
applicant to the relief demanded.
It must establish he has a right and the act
against which the injunction is directed is
violative of such right [PNB v. Timbol (2005)]
A bond must be filed, unless exempted, in the
court where the action/proceeding is pending,
in an amount to be fixed by the court (asked
in the 2006 Bar exam)
Prior notice and hearing for the party/person
sought to be enjoined.
Exceptions:
Great or irreparable injury would result to the
applicant before the matter can be heard on
notice.
The court may issue a TRO effective for 20
days from service on the party sought to
be enjoined.
Injury is irreparable if it is of such constant
and frequent recurrence that no fair or
reasonable redress can be had therefore
in court of law or where there is no
standard by which their amount can be
measured with reasonable accuracy.
Matter is of extreme urgency and the applicant will
suffer grave injustice and irreparable injury
Judge may issue ex parte a TRO effective for
72 hours from issuance.
UP COLLEGE OF LAW
Within 72 hours, judge shall conduct a summary
hearing to determine whether the TRO shall
be extended until the application for
preliminary injunction can be heard.
Maximum period of effectivity of TRO = 20
days (including 72 hrs)
If the application for preliminary injunction is
denied or not resolved within said period, the
TRO is deemed automatically vacated.
KINDS OF INJUNCTION
Preliminary Preventive Injunction
prohibits the performance of a particular act or acts
When preventive injunction does not lie
To restrain collection of taxes [Valley Trading v.
CA](1989), except where there are special
circumstances that bear the existence of
irreparable injury. [Churchill & Tait v. Rafferty
(1915)]
To restrain the sale of conjugal properties where
the claim can be annotated on the title as a
lien, such as the husbands obligation to give
support. [Saavedra v. Estrada (1931)]
To restrain a mayor proclaimed as duly elected
from assuming his office. [Cereno v. Dictado
(1988)]
To restrain registered owners of the property
from selling, disposing and encumbering their
property just because the respondents had
executed Deeds of Assignment in favor of
petitioner. [Tayag v. Lacson (2004)]
Against consummated acts. [PNB v. Adi (1982);
Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]
Exception: If the act is of continuing nature and in
derogation of plaintiffs right at the outset.
Against disposing of the case on the merits
[Ortigas and Company Limited Partnership v.
CA (1988)]
To stop the execution of judgment where the
judgment was already executed. [Meneses v.
Dinglasan (1948)]
Exception: But where the lower court enforced its
judgment before a party against whom the
execution was enforced could elevate her appeal
in an injunction suit, which was instituted to
prevent said execution, an independent petition for
injunction in the Court of Appeals is justified.
[Manila Surety and Fidelity v. Teodoro (1967)]
The CFI has no power to issue a writ of injunction
against the Register of Deeds if its effect is to
render nugatory a writ of execution issued by
the National Labor Relations Commission.
[Ambrosio v. Salvador (1978)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Transfer of possession of property to party with
disputed legal title via preliminary injunction
Exceptions:
Forcible entry and unlawful detainer cases in
which the court may issue preliminary
mandatory injunction [Rule 70, Sec. 15]
Property covered by Torrens Title when there is a
clear finding of ownership and possession of
the land. [GSIS v. Florendo(1989)]
Other instances where writ is not available:
Sec. 78, RA 9136: the implementation of the
provisions of the Electric Power Industry Reform
Act of 2001 shall not be restrained or enjoined
except by an order issued by the Supreme Court.
Sec. 1, PD 605: no court of the Philippines shall
have jurisdiction to issue any restraining order,
preliminary injunction or preliminary mandatory
injunction in any case involving or growing out
of the issuance, approval or disapproval,
revocation or suspension of, or any action
whatsoever by the proper administrative official
or body on concessions, licenses, permits,
patents, or public grants of any kind in
connection with the disposition, exploitation,
utilization, exploration, and/or development of
the natural resources of the Philippines.
Sec. 2, PD 385: no restraining order, temporary or
permanent injunction shall be issued by the court
against any government financial institution in any
action taken by such institution in compliance with
the mandatory foreclosure whether such
restraining order, temporary or permanent
injunction is sought by the borrower(s) or any third
party or parties, except after due hearing in which
it is established by the borrower and admitted by
the government financial institution concerned that
twenty percent (20%) of the outstanding
arrearages has been paid after the filing of
foreclosure proceedings.
Preliminary Mandatory Injunction
Requires the performance of a particular act or acts
Requisites of mandatory injunction
Invasion of the right is material and substantial
Right of the complainant is clear and
unmistakable
Urgent and paramount necessity for the writ to
prevent serious damages [Bautista v.
Barcelona (1957)]
The effect would not be to create a new relation
between the parties [Alvaro v. Zapata, (1982)]
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Mandatory injunction does not lie in the following
instances:
to compel cohabitation [Arroyo v. Vasquez (1921)]
cancellation of attachment [Levy Hermanos v.
Lacson (1940)]
release imported goods pending hearing before
the Commissioner of Customs.
[Commissioner of Customs v. Cloribel (1967)]
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 (1974)]
Injunction Prohibition
Generally directed Directed against
against a party in the court/tribunal/person
action exercising judicial
powers
Does not involve the may be on the ground
courts jurisdiction that the court against
whom the writ is sought
acted without/in excess
of jurisdiction
May be the main action Always a main action
itself, or just a pending the decision of the case on the merits. .
provisional remedy in the
main action
WHEN WRIT MAY BE ISSUED
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION
[Rule 58, Sec. 3] (Asked in the 2006 bar exam)
Applicant is entitled to the relief demanded, and
the relief consists in
restraining the commission or continuance of
the acts or acts complained of, or
in requiring performance of an act or acts;
Commission, continuance or non-performance of the
acts complained of during the litigation would
probably work injustice to the applicant; or
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 render
the judgment ineffectual.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Rule 58 Provides for both a Main Action for
Injunction and an Ancillary Writ of Preliminary
Injunction (Asked in the 2006 Bar Exam)
Injunction Preliminary injunction
Main action Ancillary; exists only as
part or incident of an
independent action or
proceeding
seeks a judgment sole object of which is to
embodying a final preserve the status quo
injunction until the merits can be
heard
Based on all evidence based solely on initial
gathered by court to and incomplete evidence
determine main action
a
As a matter of course, in an action for injunction,
the auxiliary remedy of preliminary injunction,
whether prohibitory or mandatory, may issue.
The evidence needed to establish the requisites for
a preliminary injunction need not be conclusive or
complete. It is generally based on initial,
incomplete evidence that gives the court an idea of
the justification for the preliminary injunction
Note: It does not necessarily proceed that when
a writ of preliminary injunction is issued, a final
injunction will follow [Urbanes v. CA (2001)]
GROUNDS FOR OBJECTION TO, OR FOR THE
DISSOLUTION OF INJUNCTION OR RESTRAINING ORDER
Grounds for Objection to/Motion for Dissolution
of Injunction/Restraining Order [Rule 58, Sec. 6]
Insufficiency of application
other grounds (e.g. applicants bond is
insufficient/defective), upon affidavits of the
party or person enjoined
if it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof would cause irreparable damage to the
party/person enjoined, while the applicant can
be fully compensated for such damages as he
may suffer, provided the former files a bond
If it appears that the extent of the preliminary
injunction or restraining order granted is too
great, it may be modified.
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Global Injunction of a Foreign Court (Asked
in the 2007 Bar Exam)
A global injunction issued by a foreign court to
prevent dissipation of funds against the
defendant who has assets in the Philippines
may be enforced in our jurisdiction, subject to
our procedural laws (Suggested Answers to the
2007 Bar Exam, UP Law Center)
As a general rule, no sovereign is bound to give
effect within its dominion to a judgment or order
of a tribunal of another country.
However, under the rules of comity, utility and
convenience, nations have established a usage
among civilized states by which final judgments
of foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious
under certain conditions that may vary in
different countries. [St. Aviation Services v.
Grand International Airways (2006)]
Note: In Pangalangan and Coquias book on
Conflict of Laws (2000), citing Cheshire, it was
stated that an interlocutory or provisional
judgment of a foreign court, creates no
obligation on the forum court to enforce it.
DURATION OF A TEMPORARY RESTRAINING ORDER
General rule: TRO is effective only for a period
of 20 days from service on the party or person
sought to be enjoined
Exceptions: If the matter is of extreme urgency
and the applicant will suffer grave injustice and
irreparable injury: effective for only 72 hours
from issuance [Rule 58, Sec.5]
Issued Effectivity:
by:
RTC 20 days, non-extendible (including the
original 72 hours)
CA May be effective for 60 days from service
on the party or person sought to be
enjoined.
SC May be effective until further orders
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO
OR WRIT OF INJUNCTION IN CASES INVOLVING
GOVERNMENT INFRASTRUCTURE PROJECTS
Sec. 3, RA 8975: No court, except the Supreme
Court, shall issue any TRO, preliminary injunction
or preliminary mandatory injunction against the
government, or any of its subdivisions, officials or
any person or entity, whether public or private
acting under the government direction, to restrain,
prohibit or compel the following acts:
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Acquisition, clearance and development of the
right-of-way and/or site or location of any
national government project;
Bidding or awarding of contract/ project of the
national government as defined under
Section 2 hereof;
Commencement prosecution, execution,
implementation, operation of any such
contract or project;
Termination or rescission of any such
contract/project; and
The undertaking or authorization of any other
lawful activity necessary for such
contract/project.
This prohibition shall apply in all cases, disputes
or controversies instituted by a private party,
including but not limited to cases filed by bidders
or those claiming to have rights through such
bidders involving such contract/project.
This prohibition shall NOT APPLY when the matter
is of extreme urgency involving a constitutional
issue, such that unless a temporary restraining
order is issued, grave injustice and irreparable
injury will arise. The applicant shall file a bond, in
an amount to be fixed by the court, which bond
shall accrue in favor of the government if the court
should finally decide that the applicant was not
entitled to the relief sought.
Any TRO, preliminary injunction, or preliminary
mandatory injunction issued in violation of Sec.
3 is void and of no force and effect. [Sec 4]
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE
OF SUMMONS IN RELATION TO ATTACHMENT
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 applicant's affidavit and
bond, upon the adverse party in the Philippines.
Exception:
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. [Rule 58, Sec.4] The executive judge of a
UP COLLEGE OF LAW CIVIL PROCEDURE
multiple-sala court or the presiding judge of a single
sala court may issue ex parte a TRO effective for only
72 hours from ISSUANCE if the matter is of extreme
urgency and the applicant will suffer grave injustice
and irreparable injury. However, he shall immediately
comply with the provisions of Rule 38, Sec. 4 as to
service of summons and the documents to be served
therewith. [Rule 38, Sec. 5]
RECEIVERSHIP (Asked in the 2001 Bar Exam)
NATURE
Receiver.
person appointed by the court in behalf of all the
parties to the action for the purpose of preserving
and conserving the property in litigation and
prevent its possible destruction or dissipation if it
were left in the possession of any of the parties.
PURPOSE
The purpose of a receivership as a provisional
remedy is 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 execution
has been returned unsatisfied. 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 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. Receivership under Rule 59 is ancillary
to the main action. (Riano).
Commodities Storage v. CA (1997): The
guiding principle is the prevention of imminent
danger to the property. If an action by its nature,
does not require such protection or preservation,
said remedy cannot be applied for and granted.
Arranza v. B.F. Homes (2000): Receivership is
aimed at the preservation of, and at making more
secure, existing rights; it cannot be used as an
instrument for the destruction of those rights.
CASES WHEN RECEIVER MAY BE APPOINTED
When it appears from the verified application and
other proof that the applicant has an interest in
the property or fund which is the subject of the
action or proceeding, and that such property or
fund is in danger of being lost, removed, or
materially injured unless a receiver be
appointed to administer and preserve it;
When it appears in an action by the mortgagee for
the foreclosure of a mortgage that the property
is in danger of being wasted or
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BAR OPERATIONS COMMISSION
dissipated or materially injured, and that its
value is probably insufficient to discharge the
mortgage debt, or that the parties have so
stipulated in the contract of mortgage;
After judgment, to preserve the property during the
pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or
otherwise to carry the judgment into effect;
Whenever in other cases it appears that the
appointment of a receiver is the most
convenient and feasible means of preserving,
administering, or disposing of the property in
litigation. [Rule 59, Sec. 1]
Specific situations when a receiver may be appointed
If a spouse without just cause abandons the other or
fails to comply with his/her obligations to the
family, the aggrieved spouse may petition the
court for receivership. [Family Code, Article 101]
The court may appoint a receiver of the property
of the judgment obligor; and it may also
forbid a transfer or other disposition of, or any
interference with, the property of the
judgment obligor not exempt from execution.
[Rule 39, Sec. 41]
After the perfection of an appeal, the trial court
retains jurisdiction to appoint a receiver of the
property under litigation since this matter does
not touch upon the subject of the appeal. [Rule
41, Sec. 9; Acua v. Caluag (1957)]
After final judgment, a receiver may be appointed as
an aid to the execution of judgment. [Philippine
Trust Company v. Santamaria (1929)]
Appointment of a receiver over the property in
custodia legis may be allowed when it is justified
by special circumstances, as when it is reasonably
necessary to secure and protect the rights of the
real owner. [Dolar v. Sundiam (1971)]
Alcantara v. Abbas (1963): The general rule is
that neither party to the litigation should be
appointed as a receiver without the consent of
the other because a receiver is supposed to be
an impartial and disinterested person.
Abrigo v. Kayanan (1983): A clerk of court
should not be appointed as a receiver as he is
already burdened with his official duties.
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER
Requisites and Procedure
Verified application filed by the party requesting for
the appointment of the receiver;
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Applicant must have an interest in the property
or funds subject of the action;
Applicant must show that the property or funds is in
danger of being lost, wasted, or dissipated;
Application must be with notice and must be set
for hearing;
Before appointing a receiver, the court shall require
applicant to post a bond in favor of the adverse
party. When the receiver is appointed, the
receiver shall file a bond then take his oath.
Before entering upon his duties, the receiver
must be sworn to perform his duties faithfully.
Who appoints receiver
Court where the action is pending
CA
SC
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. [Rule 59, Sec. 1]
Denial of application or discharge of receiver
If the appointment sought or granted is without
sufficient cause
Adverse party files a sufficient bond to answer
for damages [Rule 59, Sec. 3]
Bond posted by the applicant for grant of
receivership is insufficient
Bond of receiver is insufficient
Liability for refusal or neglect to deliver
property to receiver
Contempt; and
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. [Rule 59, Sec. 7]
TWO (2) KINDS OF BOND
Applicants bond
Receivers bond
TERMINATION OF RECEIVERSHIP
Ground
The necessity for a receiver no longer exists
Procedure
Motu proprio or on motion of either party
Notice to all interested parties and hearing [Rule
59, Sec. 8]
Effect
Settle accounts of receiver
Delivery of funds to person entitled
Discharge of receiver
Receiver entitled to reasonable compensation to
be taxed as costs against defeated party.

POWERS OF A RECEIVER REPLEVIN (Asked in the 1999 Bar Exam)

Bring and defend in such capacity actions in his
own name with leave of court WHEN MAY WRIT BE ISSUED
Take and keep possession of the property in Nature
controversy Replevin may be a main action or provisional remedy.
Receive rents As a principal action its ultimate goal is to recover
Collect debts due to himself as receiver or to the personal property capable of manual delivery
fund, property, estate, person, or corporation wrongfully detained by a person. Used in this sense, it
of which he is the receiver is considered as a suit in itself. Replevin under Rule
Compound for and compromise the same 60 is the provisional remedy. [Riano]
Make transfers
Pay outstanding debts Replevin Preliminary Attachment
Divide the money and other property that shall
remain among the persons legally entitled to
receive the same Available only where the Available even if the
Generally, to do such acts respecting the principal relief sought in recovery of personal
property as the court may authorize the action is recovery of property is only an
Invest funds in his hands, ONLY by order of the personal property, the incidental relief sought
court upon the written consent of all the other reliefs (e.g. in the action.
parties. [Rule 59, Sec. 6] damages) being merely
incidental thereto.
No action may be filed against a receiver without Can be sought only May be resorted to even
leave of the court which appointed him. where the defendant is if the personalty is in the
in actual or constructive custody of a third
possession of the person.
personalty involved.

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Replevin Preliminary Attachment thereof according to the best of his

knowledge, information, and belief;
That the property has not been distrained or
Extends only to personal Extends to all kinds of taken for a tax assessment or a fine pursuant
property capable of property, whether real, to law, or seized under a writ of execution or
manual delivery. personal or incorporeal. preliminary attachment, or otherwise placed
Available to recover To recover the under custodia legis, or if so seized, that it is
personal property even if possession of personal exempt from such seizure or custody; and
the same is not property unjustly The actual market value of the property. [Rule
concealed, removed or detained (presupposed 60, Sec. 2]
disposed of. that the same is being
concealed, removed or Bond
disposed of to prevent its The applicant must also give a bond, executed to
being found or taken by the adverse party in double the value of the
the applicant. property as stated in the affidavit. [Rule 60, Sec.2]
Cannot be availed of if Can still be resorted to
the property is in even if the property is in Redelivery bond
custodia legis (e.g. under custodia legis. The adverse party may, at any time before the
attachment, seized delivery of the property to the applicant, require the
under a search warrant). return of the property by filing with the court where
the action is pending a bond executed to the
Except: applicant, in double the value of the property as
when the seizure is illegal; stated in the applicants affidavit. [Rule 60, Sec. 5]
[Bagalihog v.
Fernandez (1991)] and Order of Replevin
where there is reason to Upon the filing of affidavit and approval of the
believe that the bond, the court shall issue an order and the
seizure will not corresponding writ of replevin describing the
anymore be followed personal property alleged to be wrongfully detained
by the filing of the and requiring the sheriff forthwith to take such
criminal action in property into his custody. [Rule 60, Sec. 3]
court or there are
conflicting claims. A writ of replevin may be served anywhere in the
[Chua v. CA (1993)] Philippines.

REQUISITES SHERIFFS DUTY IN THE IMPLEMENTATION OF THE

Application
Who may apply: party praying for the recovery of
possession of personal property. Applicant need
not be the owner. It is enough that he has right
to its possession. [Yang v. Valdez (1989)]
When:
at the commencement of the action or
before the answer [unlike attachment, injunction
and support pendente lite (anytime before
final judgment) and receivership (anytime
even after final judgment)].
AFFIDAVIT AND BOND; REDELIVERY BOND
The applicant must show by his own affidavit or
that of some other person who personally
knows the facts:
That the applicant is the owner of the property
claimed, particularly describing it, or is
entitled to the possession thereof;
That the property is wrongfully detained by the
adverse party, alleging the cause of detention
WRIT; WHEN PROPERTY IS CLAIMED BY THIRD PARTY
Disposition of Property by Sheriff
The sheriff shall retain the property for 5 days.
The adverse party may object to the
sufficiency of the bond or surety or he may
file a redelivery bond.
If after 5 days and the adverse party failed to
object or his redelivery bond is insufficient,
the sheriff shall deliver the property to the
applicant. [Rule 60, Sec. 6]
The defendant is entitled to the return of the
property under a writ of replevin if:
He seasonably posts a redelivery bond [Rule
60, Sec. 5]
Plaintiffs bond is found to be insufficient or
defective and is not replaced with proper bond
Property is not delivered to the plaintiff for
any reason [Rule 60, Sec. 6]
Where Property Claimed by Third Person

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When third party claims the property and such person
makes affidavit of his title thereto stating his grounds,
and serves such affidavit upon the sheriff while the
latter has possession of the property and a copy upon
the applicant, the sheriff SHALL NOT BE BOUND to
keep property under replevin or deliver property to the
applicant UNLESS the applicant files a bond
approved by the court in favor of the third person (the
bond should not be less than the value of stated
under Sec. 60, Sec. 2; the court shall determine the
value in case of disagreement).
No claim for damages for the taking or keeping
of the property may be enforced against the
bond UNLESS the action is filed within 120 days
from filing of the bond.
Special Civil Actions
NATURE OF SPECIAL CIVIL ACTIONS
Rules on ordinary civil actions shall apply to
special civil actions insofar as they are not
inconsistent with or may supplement the rules
governing the latter. [Rule 1, Sec. 3]
Since a civil action in general is one by which a
party sues another for the enforcement of a
right, or the prevention or redress of a wrong, a
special civil action is generally brought or filed
for the same purpose. [Riano]
HOW COMMENCED:
COMPLAINT
interpleader
expropriation
foreclosure of real estate mortgage
partition
forcible entry and unlawful detainer
PETITION
declaratory relief
review of adjudications of Constitutional
commissions
certiorari
prohibition
mandamus
quo warranto
contempt
Writs of injunction, mandamus, certiorari,
prohibition, quo warranto and habeas corpus
issued by RTCs are enforceable within their
respective judicial regions. [B.P. 129, Section 21]
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ORDINARY CIVIL ACTIONS VERSUS
SPECIAL CIVIL ACTIONS
The fact that an action is subject to special rules
other than those applicable to ordinary civil actions
is what makes a civil action special. [Riano]
Ordinary Civil Action Special Civil Action
Governed by ordinary Also governed by
rules ordinary rules but
subject to specifically
prescribed rules (Rules
62 to 71)
Some concepts applicable to ordinary civil actions
are not applicable in special civil actions. E.g.:
the definition of a cause of action requiring
violation of a right does not appear to be
relevant to the special civil action of
declaratory relief and interpleader;
ordinary civil actions may be filed initially in MTC or
RTC depending on jurisdictional amount while
some special civil actions can only be filed in MTC
(forcible entry and unlawful detainer) and some
cannot be commenced in MTC (certiorari,
prohibition, mandamus). [Riano]
JURISDICTION AND VENUE
Venue is governed by the general rules on
venue, except as otherwise indicated in the
particular rules for special civil actions.
3 special civil actions within the jurisdiction of
inferior courts:
interpleader, provided the amount involved is
within its jurisdiction [Makati Development
Corp. v. Tanjuatco (1969)]
ejectment suits [Rule 70]
contempt [Rule 71]
INTERPLEADER
DEFINITION
A remedy whereby a person who has property in
his possession or has an obligation to render
wholly or partially, without claiming any right in
both, comes to court and asks that the defendants
who have made conflicting claims upon the same
property or who consider themselves entitled to
demand compliance with the obligation be required
to litigate among themselves in order to determine
who is entitled to the property or payment or the
obligation [Beltran v. PHHC, (1969)]
PURPOSE
To compel conflicting claimants to interplead and
litigate their several claims among
themselves. [Rule 62, Sec. 1]
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To protect a person against double vexation in
respect of one liability [Beltran, supra]
REQUISITES FOR INTERPLEADER
There must be two or more claimants with
adverse or conflicting interests to a property
in the custody or possession of the plaintiff.
The plaintiff has NO CLAIM upon the subject
matter of the adverse claims, or if he has an
interest at all, such interest is NOT
DISPUTED by the claimants.
The subject matter of the adverse claims must
be one and the same.
Procedure
Complaint filed by the person against whom
conflicting claims are or may be made. [ibid]
The docket and other lawful fees paid by the
complainant, and costs and litigation expenses
shall constitute a lien or charge upon the subject
matter of the action, unless otherwise ordered
by the court. [Rule 62, Sec. 7]
Court order requiring the conflicting
claimants to interplead with one another. If
the interests of justice so require, the court
may direct that the subject matter be paid or
delivered to the court. [Rule 62, Sec. 2]
Summons, copy of complaint and order served
upon the conflicting claimants. [Rule 62, Sec. 3]
Each claimant shall file his answer within 15
days from service of the summons, serving a
copy thereof upon each of the other conflicting
claimants, who may file their reply thereto.
If claimant fails to plead within the time herein
fixed, the court may, on motion, declare him in
default and render judgment barring him from
any claim in respect to the subject matter.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Within the time for filing an answer, each
claimant may file a motion to dismiss.
Grounds:
impropriety of the interpleader action, or
other appropriate grounds specified in
Rule 16
The period to file the answer shall be tolled.
If the motion is denied, an answer may be
filed within the remaining period, in no
case less than 5 days (reckoned from
notice of denial) [Rule 62, Sec. 4].
The parties may file counterclaims, cross-
claims, third-party complaints and responsive
pleadings thereto. [Rule 62, Sec. 5]
Pre-trial
Court shall determine conflicting claimants
respective rights and adjudicate their
several claims. [Rule 62, Sec. 6]
WHEN TO FILE
Whenever conflicting claims upon the same
subject matter are or may be made against a
person who claims no interest in the subject
matter or an interest which is not disputed by the
claimants. [Rule 62, Sec. 1]
Cannot be availed of to resolve the issue of breach
of undertakings made by defendants, which should
be resolved in an ordinary action for specific
performance or other relief [Beltran, supra].
DECLARATORY RELIEFS AND SIMILAR REMEDIES
WHO MAY FILE THE ACTION
a person interested under a deed, will, contract
or other written instrument
a person whose rights are affected by a statute,
executive order or regulation, ordinance or any
other governmental regulation [Rule 63, Sec. 1]
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UP COLLEGE OF LAW
Parties
all persons who have or claim any interest which
would be affected by the declaration [Rule
63, Sec. 2]
If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor
General shall be notified. [Rule 63, Sec. 3]
If action involves the validity of a local
government ordinance, the
prosecutor/attorney of the LGU involved shall
be notified. [Rule 63, Sec. 4]
Subject Matter Notice Given To
Validity of a statute, EO Sol Gen
or regulation, or any
governmental regulation
Validity of a local Prosecutor or attorney of
government ordinance the LGU
Constitutionality of a Sol Gen
local government
ordinance
Baguio Citizens Action v. City Council of
Baguio (1983): Non-joinder of interested persons
is not a jurisdictional defect; but persons not joined
shall not be prejudiced in their interests unless
otherwise provided by the Rules.
Commission of Customs v. Cloribel (1977): A
third-party complaint is not available in a
declaratory relief.
Visayan Packing v. Reparations Commission
(1987): A compulsory counterclaim may be set
up in a petition for declaratory relief.
Where filed
in the proper RTC [Rule 63, Sec. 1]
not within the original jurisdiction of the Supreme
Court, even if pure questions of law are
involved. [Remotigue v. Osmea (1967)]
REQUISITES OF ACTION FOR DECLARATORY RELIEF
subject matter of the controversy must be a
deed, will, contract or other written
instrument, statute, executive order or
regulation, or ordinance [Rule 63, Sec. 1];
the terms of said documents and the validity
thereof are doubtful and require judicial
construction [Santos v. Aquino (1953)]
no breach of the documents in question. [Reparations
Commission v. Northern Lines (1970)] Otherwise, an
ordinary civil action is the remedy.
Concept of a cause of action in ordinary civil
actions does not apply.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
If before the final termination of the case, a
breach or violation of an instrument or a
statute, etc. should take place, the action
may be converted into an ordinary action.
[Rule 63, Sec. 6]
actual justiciable controversy [Velarde v. SJS
(2004)]
adverse interests between the parties
A declaratory relief is not available for a
declaration of citizenship [Villa-Abrille v. Republic
(1956)] or the validity of a registration certificate
[Obiles v. Republic (1953)] as they are unilateral in
nature and without conflicting adverse interests.
issue must be ripe for judicial determination
[Velarde v. SJS (2004)]
adequate relief is not available through other
means or other forms of action or
proceedings. [Ollada v. Central Bank (1962)]
A court decision cannot be the subject of a
declaratory relief since there exists other
remedies, i.e., appeal or a motion for
clarificatory judgment [Tanda v. Aldaya (1956)]
WHEN COURT MAY REFUSE TO MAKE JUDICIAL
DECLARATION
where a decision would not terminate the
uncertainty or controversy which gave rise to
the action, or
where the declaration or construction is not
necessary and proper under the
circumstances. [Rule 63, Sec. 5]
CONVERSION TO ORDINARY ACTION
Requisites
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
Effect
The parties shall be allowed to file such pleadings
as may be necessary or proper. [Rule 63.6]
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES
Reformation of an instrument [Arts. 1359-
1369 Civil Code]
Definition
Art. 1359, Civil Code. When, there having been a
meeting of the minds of the parties to a contract, their
true intention is not expressed in the instrument
purporting to embody the agreement, by reason of
mistake, fraud, inequitable conduct or accident, one
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of the parties may ask for the reformation of the An aggrieved party may bring the questioned
instrument to the end that such true intention judgment, etc. directly to the SC on certiorari
may be expressed. under Rule 65. [Rule 64, Sec. 2]

If mistake, fraud, inequitable conduct, or accident Such petition for certiorari shall not stay the
has prevented a meeting of the minds of the execution of the judgment, etc. sought to be
parties, the proper remedy is not reformation of the reviewed unless otherwise directed by the
instrument but annulment of the contract. Supreme Court [Rule 64, Sec. 8]

Art.1369, Civil Code. The procedure for the PROCEDURE

reformation of instrument shall be governed by rules See next page.
of court to be promulgated by the Supreme Court

Consolidation of ownership [Art. 1607 Civil

Code] [Rule 63, Sec. 1(2)]

Definition
Art. 1607, Civil Code. In case of real property, the
consolidation of ownership in the vendee by virtue
of the failure of the vendor to comply with the
provisions of article 1616 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 [Arts. 476-481

Civil Code]

Definition
Art. 476, Civil Code. Whenever there is a cloud on
title to real property or any interest therein, by
reason of any instrument, record, claim,
encumbrance or proceeding which is apparently
valid or effective but is in truth and in fact invalid,
ineffective, voidable, or unenforceable, and may be
prejudicial to said title, an action may be brought to
remove such cloud or to quiet the title.

An action may also be brought to prevent a

cloud from being cast upon title to real property
or any interest therein.

Art. 481, Civil Code. The procedure for the

quieting of title or the removal of a cloud
therefrom shall be governed by such rules of
court as the Supreme Court shall promulgated.

REVIEW OF JUDGMENTS AND FINAL ORDERS

OR RESOLUTION OF THE COMELEC AND COA

SCOPE
Applicable only to judgments and final orders of
the COMELEC and COA [Rule 64, Sec. 1]
Judgments/orders of the Civil Service Commission
are now reviewable by the Court of Appeals
under Rule 43, eliminating recourse to the
Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]

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File a petition for review.
When [Rule 64, Sec. 3]:
Within 30 days from notice of judgment/final
order/resolution sought to be reviewed
Filing of motion for reconsideration/new trial with
Constitutional commission interrupts the 30-day
period. If motion is denied, aggrieved party may
file petition within remaining period, which shall
not be less than 5 days from notice of denial.
Form [Rule 64, Sec. 5]: verified and
accompanied by (annexes):
a clearly legible duplicate original or certified true
copy of the subject judgment, etc.
certified true copies of such material portions of
the record referred to in the petition
other documents relevant and pertinent to the
petition
proof of service of a copy of the petition on the
Commission and the adverse party
proof of the timely payment of the docket and
other lawful fees
in 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. (containing plain copies of all documents
attached to the original copy of the petition)
Parties to cases before the Supreme Court are
further required, on voluntary basis for the first six
months following the effectivity of this Rule and
compulsorily afterwards unless the period is
extended, to submit, simultaneously with their court-
bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to
the Courts 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. [Efficient Use of Paper Rule, Section 5]
Contents [Rule 64, Sec. 5]:
name of aggrieved party (petitioner)
respondents: Commission concerned and
person(s) interested in sustaining the
judgment a quo
facts
issues involved
grounds and brief arguments relied upon for
review
prayer for judgment annulling or modifying the
question judgment, etc.
material dates showing that it was filed on time
certification against non-forum shopping
Findings of fact of the Commission supported by
substantial evidence shall be final and non-
reviewable.
Failure to comply with foregoing requirements
shall be sufficient ground for dismissal.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Order to Comment [Rule 64, Sec. 6]
If the SC finds the petition sufficient in form
and substance, it shall order the respondents
to file their comments on the petition within 10
days from notice thereof.
Grounds for dismissal:
Petition not sufficient in form and substance
Petition was filed manifestly for delay
the questions raised are too unsubstantial to
warrant further proceedings.
Comments of Respondents [Rule 64, Sec. 7]
Requirements:
original copy with certified true copies of
material portions of the record as are
referred to in the comment and certified
true copies of other supporting papers
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
(with plain copies of all documents
attached to the original)
Parties to cases before the Supreme Court are
further required, on voluntary basis for the first
six months following the effectivity of this Rule
and compulsorily afterwards unless the period
is extended, to submit, simultaneously with their
court-bound papers, soft copies of the same
and their annexes (the latter in PDF format)
either by email to the Courts 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.
[Efficient Use of Paper Rule, Section 5]
Copy of the comment shall be served on the
Decision [Rule 64, Sec. 9]
Case is deemed submitted for decision upon:
filing of the comments on the petition, and such
other pleadings or papers as may be
required or allowed.
expiration of the period to file the pleadings.
Exceptions: SC sets the case for oral argument
or requires parties to submit memoranda.
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Application of Rule 65 under Rule 64 is read in relation to Section 3, Rule 46, which
states that failure to comply with any of the
DISTINCTION IN THE APPLICATION OF RULE 65 TO documentary requirements, such as the
JUDGMENTS OF THE COMELEC AND COA AND THE attachment of relevant pleadings, shall be
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, sufficient ground for the dismissal of the petition.
PERSONS AND OFFICERS [Radio Philippines Network v. Yap (2012)]

Rule 64 Rule 65 Note: (In the 2005 and 2008 Bar Exams, bar
examinees were asked to compare Petition for
review on Certiorari and Certiorari)
Directed only to the Directed to any tribunal,
judgments, final orders board, or officer Certiorari
or resolutions of exercising judicial or Suarez v. NLRC (1998): Questions of fact cannot
COMELEC and COA quasi-judicial functions be raised in an original action for certiorari. Only
Filed within 30 days Filed within 60 days established or admitted facts may be considered.
from notice of the from notice of the
judgment judgment Medran v. CA (1949): Findings of fact of CA are not
The filing of a MR or a The period within which binding upon SC in an original action for certiorari.
Motion for New Trial if to file the petition if the
allowed, interrupts the MR or new trial is Republic v. St. Vincent de Paul (2012): Time for
period for the filing of denied, is 60 days from filing: Under Section 4, Rule 65 of the Rules of
the petition for certiorari. notice of the denial of Court and as applied in Laguna Metts Corporation,
If the motion is denied, the motion. the general rule is that a petition for certiorari must
the aggrieved party may be filed within sixty (60) days from notice of the
file the petition within judgment, order, or resolution sought to be
the remaining period, assailed. Under exceptional circumstances,
but which shall not be however, and subject to the sound discretion of the
less than 5 days Court, said period may be extended
reckoned from the notice
of denial. Prohibition
Prohibition is a preventive remedy. However, to
CERTIORARI, PROHIBITION AND MANDAMUS prevent the respondent from performing the act
The original action of certiorari is not a substitute sought to be prevented during the pendency of
for appeal. [Lobite v. Sundiam (1983)] the proceedings for the writ, the petitioner
should obtain a restraining order and/or writ of
Exceptions: preliminary injuction. [Regalado]
appeal is not a speedy and adequate remedy
[Salvadores v. Pajarillo (1947)] Enriquez v. Macadaeg (1949) : Prohibition is
the orders were issued either in excess of or the remedy where a motion to dismiss is
without jurisdiction [Aguilar v. Tan (1970)] improperly denied.
special considerations, i.e., public welfare or
public policy [Jose v. Zulueta (1961)]
the order is a patent nullity [Marcelo v. De Mandamus
A writ of mandamus will not issue to control the
Guzman (1982)]
exercise of official discretion or judgment, or to alter
the decision in the certiorari case will avoid
or review the action taken in the proper exercise of
future litigations [St. Peter Memorial Park v.
the discretion of judgment, for the writ cannot be used
Campos (1975)]
as a writ of error or other mode of direct review.
when the broader interest of justice so requires
[Mendez v. CA (2012)]
However, in extreme situations generally in criminal
when the writs issued are null and void [Mendez
cases, mandamus lies to compel the performance
v. CA (2012)]
of the fiscal of discretionary functions where his
when the questioned order amounts to an
actuations are tantamount to a wilful refusal to
oppressive exercise of judicial authority
perform a required duty. [Regalado]
[Mendez v. CA (2012)]

The requirement in Section 1 of Rule 65 of the Rules

General rule: In the performance of an official duty
or act involving discretion, such official can only be
of Court to attach relevant pleadings to the petition

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directed by mandamus to act but not to act in

one way or the other. ORDER TO COMMENT
Exception: gross abuse of discretion, manifest If the petition is sufficient in form and
injustice, palpable excess of authority [Kant substance to justify such process, the
Wong v. PCGG (1987)] court shall issue an order requiring the
respondent(s) to comment on the
Mandamus can be availed of only by the party petition within 10 days from receipt of
who has direct legal interest in the right sought a copy thereof.
to be enforced. HOWEVER, if the question is
one of public right, it is sufficient to show that the Such order shall be served on the
petitioner is a citizen. [Tanada v. Tuvera (1985)] respondents in such manner as the
court may direct, together with a
WHEN PETITION FOR CERTIORARI, PROHIBITION AND copy of the petition and any annexes
MANDAMUS IS PROPER thereto. [Rule 65, Sec. 6]
See Annex F.

Procedure
HEARING OR MEMORANDA
FILE PETITION FOR
After the comment or other pleadings
CERTIORARI/ PROHIBITION /
required by the court are filed, or the time
MANDAMUS.
for the filing thereof has expired, the court
When filed:
may hear the case or require the parties to
Not later than 60 days from notice of
submit memoranda. [Rule 65, Sec. 8]
judgment/order/resolution
If a motion for reconsideration/new trial is
filed, the 60-day period shall be
counted from notice of denial of motion.
Extension may be granted for compelling
JUDGMENT
reasons, not exceeding 15 days.
If after such hearing or submission of
[Rule 65, Sec. 4]
memoranda or the expiration of the period
for the filing thereof, the court finds that the
Where filed:
allegations of the petition are true, it shall
Supreme Court
render judgment for the relief prayed for or
Court of Appeals
to which the petitioner is entitled.
If it involves the acts of a quasi-
judicial agency, the petition shall be
The court, however, may dismiss the
filed only in the CA, unless otherwise
petition if it finds the same to be (1)
provided by law or the Rules.
patently without merit, (2) prosecuted
Regional Trial Court, if it relates to acts /
manifestly for delay, or that (3) the
omissions of a lower court /
questions raised therein are too
corporation / board / officer / person.
unsubstantial to require consideration.
Sandiganbayan, if it is in aid of its
[Rule 65, Sec. 8]
appellate jurisdiction. [Rule 65, Sec. 4]

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Mandamus Distinguished From Injunction

SERVICE AND ENFORCEMENT OF Mandamus Injunction
ORDER OR JUDGMENT Special civil action Ordinary civil action
A certified copy of the judgment rendered Directed against a Directed against a
shall be served upon the court, quasi- tribunal, corporation litigant
judicial agency, tribunal, corporation, board, board or officer
officer or person concerned in such manner Purpose is for the Purpose is for the
as the court may direct, and disobedience tribunal, corporation, defendant either to
thereto shall be punished as contempt. board or officer to refrain from an act or to
perform a ministerial perform not necessarily a
An execution may issue for any damages and legal duty legal and ministerial duty
or costs awarded in accordance with Purpose is to perform a Purpose is to prevent an
section 1 of Rule 39. [Rule 65, Sec. 9] positive legal duty and act to maintain the
not to undo what has status quo between the
been done parties
INJUNCTIVE RELIEF
Rule 65, Sec. 7 provides for the issuance of a EXCEPTIONS TO FILING OF MOTION FOR
temporary restraining order, and not only for a RECONSIDERATION BEFORE FILING PETITION
writ of preliminary injunction, but such order General rule: A motion for reconsideration must first
shall be subject to the rules on the grounds and be availed of before certiorari to enable the lower
duration thereof. [Regalado] court to correct its mistakes without the intervention of
the lower courts. [BA Finance v. Pineda (1982)]
CERTIORARI DISTINGUISHED FROM APPEAL BY
CERTIORARI; PROHIBITION AND MANDAMUS Exceptions:
DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO the order is a patent nullity [Vigan Elec. Light v.
FILE PETITION Public Service Commission (1964)]
Certiorari Distinguished From Appeal the questions raised in the certiorari have been
duly raised and passed upon by the lower court
Certiorari Appeal [Fortich-Celdran v. Celdran (1967)] or are the
Proper to correct errors Proper where error is not same as those raised and passed upon in the
of jurisdiction committed one of jurisdiction but an lower court [Pajo v. Ago (1960)]
by lower courts, grave error of law or fact which there is an urgent necessity for the resolution of the
abuse of discretion which is a mistake of judgment question and delay would prejudice the interests of
is tantamount to lack of the government [Vivo v.Cloribel (1966)]
jurisdiction the MR would be useless [People v. Palacio
Certiorari invokes Appeal when filed (1960)]
original jurisdiction of the invokes the appellate the petitioner was deprived of due process and
court jurisdiction of the court there is extreme urgency for relief [Luzon
Within 60 days from Filed within period of Surety v. Marbella (1960)]
notice of judgment, order appeal the proceeding was ex parte in which the
or resolution petitioner had no opportunity to object
An original and Continuation of the [Republic v. Maglanoc (1963)]
independent action original case the issue raised is purely a question of law or
Impleads the tribunal, Parties to an appeal are where the public interest is involved [PALEA
court, board or officer the original parties of the v. PAL (1982)]
case
RELIEFS PETITIONER IS ENTITLED TO
Prohibition Distinguished From Injunction Petitioner may be entitled to:
Injunctive relief Court may may issue orders
Prohibition Injunction
expediting the proceedings, and it may also
Directed to the court or Directed against a party
grant a temporary restraining order or a writ of
tribunal directing it to to the action
preliminary injunction for the preservation of the
refrain from the
rights of the parties [Rule 65, Sec. 7]
performance of acts Incidental reliefs as law and justice may require
which it has no [Rule 65, Secs. 1 and 2]
jurisdiction to perform Other reliefs prayed for or to which the petitioner
is entitled [Rule 65, Sec. 8]

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DISTINGUISH FROM QUO WARRANTO IN THE

FACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES
OMNIBUS ELECTION CODE
Jurisdiction in Election Cases
[Omnibus Election ROC Rule 66 OEC Sec. 253
Code, Sec. 268]: Filed by whom
Solicitor General or Public Any voter
RTC: has the exclusive original jurisdiction to try Prosecutor in behalf of the
and decide any criminal action or proceedings Republic; Individual
for violation of the Omnibus election Code Where filed
By SolGen: RTC Manila, COMELEC, if against
Exception: those relating to the offense of failure CA or SC; Otherwise, RTC election of a Member
to register or failure to vote which shall be under withjurisdiction over of Congress, Regional,
the jurisdiction of the metropolitan or municipal territorial area where Provincial or City
trial courts. respondent resides, CA or Officer;
SC appropriate RTC or
From the decision of the courts, appeal will lie
the same as in other criminal cases. MTC, if against a
municipal or barangay
Note: RA 7691 which expanded the jurisdiction officer
of the MTC, did not divest the RTC of its Period for filing
jurisdiction over the said offenses, even if the Within 1 year from ouster, Within 10 days after
imposable penalty is not more than 6 years of or from the time the right proclamation of
imprisonment [COMELEC v. Noynay (1998)] to the position arose results
Against whom, grounds
WHERE TO FILE PETITION [Rule 65, Sec. 4] A person, who usurps, Ineligibility or
The petition shall be filed: intrudes into or unlawfully disloyalty to the
In the SC; or holds or exercises a public Republic
In the RTC exercising jurisdiction over the office, position or
territorial area , if it relates to the acts or franchise;
omissions of a lower court or of a
corporation, board, officer or person; A public officer, who does
In the CA, whether or not the same is in aid of its or suffers an act which, by
appellate jurisdiction; or provision of law,
In the Sandiganbayan, if it is in aid of its constitutes a ground for
appellate jurisdiction. forfeiture of office

Note: If it involves the acts or omissions of a How commenced

quasi-judicial agency, and unless otherwise
provided by law or these rules, the petition shall
be filed in and cognizable only by the CA.
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION
[Rule 65, Sec. 8]
The court, however, may 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.
QUO WARRANTO
Quo warranto is the remedy to try disputes with
respect to the title to a public office.
By a verified petition [Rule 66, Sec. 1]
WHEN THE GOVERNMENT COMMENCES AN ACTION
AGAINST INDIVIDUALS
By Government, brought in the name of the
Republic of the Philippines, against:
A person who usurps, intrudes into, or
unlawfully holds or exercises a public
office, position or franchise
A public officer who does not or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office
An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so
to act [Rule 66, Sec. 1]

When Solicitor General or public prosecutor

MUST commence action:
When directed by the President of the
Philippines.

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UP COLLEGE OF LAW
When upon complaint or otherwise, he has
good reason to believe that any case
specified in Sec. 1 can be established by
proof. [Rule 66, Sec. 2]
When Solicitor General or public prosecutor
MAY commence action:
with permission of the court
at the request and upon the relation of
another person
Officer bringing such action may first require an
indemnity for the expenses and costs of the
action in an amount approved by and
deposited in court. [Rule 66, Sec. 3]
WHEN INDIVIDUAL MAY COMMENCE AN ACTION
By a person claiming to be entitled to a public office or
position, brought in his own name, against another
who usurped or unlawfully held or exercised such
public office or position [Rule 66, Sec. 5]
JUDGMENT IN QUO WARRANTO ACTION
When the respondent is found guilty of usurping,
intruding into, or unlawfully holding or exercising
a public office, position, or franchise, judgment
shall be rendered that such respondent be
ousted and altogether excluded therefrom, and
that the petitioner or relator recover his costs.
[Rule 66, Sec. 9]
RIGHTS OF A PERSON ADJUDGED ENTITLED TO
PUBLIC OFFICE
If judgment be rendered in favor of the person
averred in the complaint to be entitled to the
public office he may, after taking the oath of
office and executing any official bond required
by law, take upon himself the execution of the
office, and may immediately thereafter demand
of the respondent all the books and papers in
the respondent's custody or control appertaining
to the office to which the judgment relates.
The person adjudged entitled to the office may
also bring action against the respondent to
recover the damages sustained by such person
by reason of the usurpation. [Rule 66, Sec. 10]
EXPROPRIATION
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION
The complaint for expropriation must be VERIFIED.
Contents:
The right and purpose of expropriation
Description of the real or personal property
sought to be expropriated;
The complaint shall join as defendants all persons
owning or claiming to own, or occupying
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
any part thereof or any interest therein,
showing as far as practicable the separate
interest of each defendant.
The following must be clearly stated in the
complaint , if applicable:
If the title to any property sought to be
expropriated appears to be in the Republic
of the Philippines, although occupied by
private individuals;
If the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners.
[Rule 67, Sec. 1]
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION
Determination of the authority of the plaintiff to
exercise the power of eminent domain and the
propriety of its exercise in the context of the facts.
This stage is terminated by either an order of
dismissal of the action or order of the condemnation
declaring that expropriation is proper and legal. These
orders are final and therefore appealable.
[Municipality of Bian v. Garcia (1989)]
It includes an inquiry into the propriety of the
expropriation its necessity and public purpose.
[Riano]
Determination of just compensation.
This is done with the assistance of not more
than three (3) commissioners.
The order fixing just compensation is also final
and appealable (Ibid). Just compensation is to
be determined as of the date of the taking of the
propriety or the filing of the complaint, whichever
comes first.
Ansaldo v. Tantuico (1990): There is taking when
the owner is actually deprived or dispossessed of his
property; when there is a practical destruction or a
material impairment of the value of his property or
when he is deprived of the ordinary use thereof.
Bardillon v. Bgy. Masili (2003): An expropriation
suit is incapable of pecuniary estimation.
Accordingly, it falls within the jurisdiction of RTCs,
regardless of the value of the subject property.
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WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO Rule 67 RA 8974

POSSESSION OF THE REAL PROPERTY, IN RELATION depositary
TO RA 8974 Amount for deposit Amount to be paid is:

equivalent to 100% 100% of the value of
Sec. 4. of RA 8974 otherwise known as An Act assessed value of the the land as stated in
to facilitate the acquisition of right-of-way, site or property for purposes of the tax declaration or
location for national government infrastructure taxation. current zonal
projects and for the purposes: [w]henever it is valuation, whichever
necessary to acquire real property for the right- is higher, and the
of-way or location for any national government value of
infrastructure project through expropriation, the improvements, OR

appropriate implementing agency shall initiate in the case of utmost
the expropriation proceedings before the proper urgency, the proffered
court under the following guidelines: value of the property
to be seized
(a) Upon the filing of the complaint, and after due
notice to the defendant, the implementing NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL
agency shall immediately pay the owner of the JUST COMPENSATION
property the amount equivalent to the sum of (1) See table of comparison under the preceding
100% of the value of the property based on the subsection, column of RA 8974.
current relevant zonal valuation of the Bureau of
Internal Revenue (BIR); and (2) the value of the DEFENSES AND OBJECTIONS
improvements and/or structures as determined No Objection Or Defense Has Objection Or
under Section 7 hereof; To The Taking Defense To The Taking
(b) In provinces, cities, municipalities and other areas
where there is no zonal valuation, the BIR is What to file and serve
hereby mandated within the period of sixty (60) Notice of appearance Answer to the
days from the date of the expropriation case, to and manifestation complaint
come up with a zonal valuation for said area; and
(c) In case the completion of a government Period to file
infrastructure project is of utmost urgency and Time stated in the summons
importance, and there is no existing valuation of Contents
the area concerned, the implementing agency Manifestation to the Specifically
shall immediately pay the owner of the property effect that he has no designating/identifying
its proffered value taking into consideration the objection or defense; the property in which he
standards prescribed in Section 5 hereof. claims to have an
Specifically interest in and the
Upon compliance with the guidelines above- designating/identifying nature and extent of
mentioned, the court shall immediately issue to the property in which he the interest;
the implementing agency an order to take claims to be interested
possession of the property and start the ALL his objections and
implementation of the project. defenses to the
complaint or any
Riano opines that Sec. 2 of Rule 67 is deemed allegation therein
modified by RA 8974. He noted the following Prohibited
differences:
Counterclaim, cross-
claim, third party
Rule 67 RA 8974
complaint in any
Before issuance of writ of Upon filing of the pleading
possession complaint
Expropriation Right-of-way, site or A foreclosure action must be brought in the RTC
proceedings initiated by location of national of the province where the land or any part
the national government government thereof is situated.
infrastructure projects
A defendant waives all defenses and objections not
Initial deposit with an Immediate payment to so alleged, but the court, in the interest of justice,
authorized government the property owner

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may permit amendments to the answer not to be
made later than ten (10) days from filing thereof.
At the trial of the issue of just compensation,
whether the 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. [Rule 66, Sec. 3]
ORDER OF EXPROPRIATION
It declares that the plaintiff has a lawful right to take
the property sought to be expropriated for the public
use or purpose described in the complaint, upon
payment of just compensation to be determined as of
the date of the taking of the property or the filing of
the complaint whichever is earlier.
It is issued by the court in which the complaint
for expropriation is filed when:
objections or defenses of the defendant have
been overruled, or
the defendant raised no such defense or
objection, or
No party appears to defend. [Rule 67, Sec. 4]
ASCERTAINMENT OF JUST COMPENSATION
Just Compensation
is defined as the full and fair equivalent of the
property taken from its owner by the expropriator.
Determined as of the date of taking of the
property, or the filing of the complaint, whichever
came first. [Rule 67, Sec. 4]
The measure is not the takers gain, but the owners
loss. To compensate is to render something which is
equal in value to that taken or received.
The word just is used to intensify the meaning of
the word compensation; to convey the idea that
the equivalent to be rendered for the property
taken shall be real, substantial, full, and ample.
In eminent domain or expropriation proceedings,
the general rule is that the just compensation
which the owner of condemned property is
entitled to is the market value.
Market Value
Is that sum of money which a person desirous but
not compelled to buy, and an owner willing but not
compelled to sell, would agree on as a price to be
given and received therefore. [BPI v. CA (2004)]
Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
and report to the court the just compensation for
the property sought to be taken. [Rule 67, Sec. 5]
APPOINTMENT OF COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION UPON COMMISSIONERS REPORT
Order of appointment to be served on the
parties. Objections to the appointment of any of
the commissioners shall be filed in court within
ten (10) days, and shall be resolved within thirty
(30) days after all the commissioners have
received copies of the objections.
Powers and duties of commissioners:
Parties can present evidence before the
commissioners and the latter have the power
to administer oaths or hearings before them;
They can, after due notice to the parties to
attend, view and examine the property
sought to be expropriated and its
surroundings and may measure the same;
Exception: when the parties agree otherwise,
the commissioners cannot view and examine
the property
The commissioners shall assess the
consequential damages to the property
taken and deduct from such consequential
damages the consequential benefits
derived by the owner from the public use
or purpose of the property taken, the
operation of its franchise by the
corporation or person taking the property.
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. [Rule 67, Sec. 6]
The commissioners shall make full and accurate
report to the court of all their proceedings.
The report shall be filed within 60 days from
the date the commissioners were notified
of their appointment.
Upon filing of the report, the clerk of 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
the parties desire. [Rule 67, Sec. 7]
After the 10-day period for objecting to the
commissioners report, the court, after
hearing, may:
ACCEPT the report and render JUDGMENT
in accordance therewith;
RECOMMIT the report to the commissioners
for further report of facts;
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SET ASIDE the report and APPOINT new
commissioners;
ACCEPT the report IN PART and REJECT it
IN PART;
And make such order or render judgment as shall
secure to the plaintiff the property essential to the
exercise of his right of expropriation and to the
defendant just compensation for the property so
taken. [Rule 67, Sec. 8]
RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT
Right to enter upon the property expropriated and
appropriate it for the public use or purpose as
stated. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from the
taking of the possession of the property, or after
tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the
right to enter upon the property expropriated
and to appropriate it for the public use or
purpose defined in the judgment, or to retain it
should he have taken immediate possession
thereof under Sec. 2. [Rule 67, Sec. 10]
Right to enter upon the property even pending
appeal. The right of the plaintiff to enter upon
the property of the defendant and appropriate
the same for public use or purpose shall not be
delayed by an appeal from the judgment.
The judgment entered in expropriation proceedings
shall state definitely, by an adequate description, the
particular property or interest therein expropriated,
and the nature of the public use or purpose for which
it is expropriated. [Rule 67, Sec. 13]
EFFECT OF RECORDING OF JUDGMENT
When real estate is expropriated, a certified
copy of the judgment entered in expropriation
proceedings shall be recorded in the registry of
deeds of the place in which the property is
situated, and its effect shall be to vest to plaintiff
the title to the real estate so described for such
public use or purpose. [Rule 67, Sec. 13]
FORECLOSURE OF REAL ESTATE
MORTGAGE
(Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is
generally the non-payment of the mortgage loan,
but it may be on other grounds which under the
contract warrant the foreclosure, such as the
violation of the other conditions therein.
Foreclosure may be made:
(a) judicially governed by Rule 68
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BAR OPERATIONS COMMISSION
Extrajudicially proper only when so provided in
contracts in accordance with Act. No. 3135;
governed by A.M. No. 99-10-05-0.
Monte de Piedad v. Rodrigo (1931) : A foreclosure
action must be brought in the RTC of the province
where the land or any part thereof is situated.
If a mortgage contract covers several distinct
parcels of land situated in different provinces, the
action may be brought in the RTC of any of the
provinces and the judgment will be enforceable
against any of the parcels of land involved.
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE
Judgment
Payment
If upon the trial, the court shall find the facts set
forth in the complaint to be true, it shall ascertain
the amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other
charges as approved by the court, and costs, and
shall render judgment for the sum so found due
and order that the same be paid to the court or to
the judgment obligee within a period of not less
than 90 days nor more than 120 days from the
entry of judgment (equity of redemption).
Sale
In default of such payment the property shall be
sold at public auction to satisfy the judgment.
[Rule 68, Sec. 2]
SALE OF MORTGAGED PROPERTY; EFFECT
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 execution.
It is the ministerial duty of the court to order the
foreclosure of the property when the debt is
not paid within the period specified.
A motion for such order of sale is non-litigable
and may be made ex parte. [Govt of P.I. v
De las Cajigas (1931)]
Such sale shall not affect the rights of persons
holding prior encumbrances upon the
property or a part thereof, and
When confirmed by an order of the court, also
upon motion, 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.
UP COLLEGE OF LAW CIVIL PROCEDURE BAR OPERATIONS COMMISSION

Possession: Upon the finality of the order of

confirmation or upon the expiration of the If the debtor dies, the deficiency may be filed as
period of redemption when allowed by law, a claim against his estate. [Rule 86, Sec. 7]
the purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the Exceptions:
possession of the property, unless a third Third Party Mortgagor - No deficiency judgment
party is actually holding the same adversely may be rendered where the mortgage was
to the judgment obligor. executed by a third person to secure the
The said purchaser or last redemptioner may obligation of a debtor, such third person not
secure a writ of possession, upon motion, having assumed personal liability for the
from the court which ordered the foreclosure. debt. The remedy is an ordinary action
[Rule 68, Sec. 3] against the debtor. [Philippine Trust Co. v.
The purchaser is entitled to a writ of possession Echaus Tan Siusa (1929)]
and it is ministerial upon the court to issue a
writ of possession in his favor upon an ex parte Extrajudicial Foreclosure - There can be no
motion. [Barican, et al v Caguioa, et al, (1986)] deficiency judgment because there was no
judicial proceeding in the foreclosure.
DISPOSITION OF PROCEEDS OF SALE Recovery can be made through a separate
Claims to be satisfied by the proceeds of the action. [DBP v Mirang (1975); DBP v
public sale of mortgaged property (in order): Zaragosa, (1978); PNB v CA (1999)]
Costs incurred in the sale of property
Claim of the person foreclosing the property Instances when court cannot render
Claims of junior encumbrancers in the order of deficiency judgment
their priority
JUDICIAL FORECLOSURE V. EXTRAJUDICIAL FORECLOSURE
If proceeds of the sale exceeds the cost of the sale as Judicial Foreclosure Extrajudicial Foreclosure
well as the claims of the person foreclosing the Governed by the Rules of Governed by Act 3135 as
property and junior encumbrancers, the residual Court amended
amount shall be given to the mortgagor or his agent, Involves the filing of an Does not require filing of
or to the person entitled to it. [Rule 68, Sec. 4] independent action an action
If the proceeds of the sale is less than the amount of Equity of redemption Right of redemption
the claims to be satisfied, the person foreclosing the EXCEPT if the
property may move for a DEFICIENCY JUDGMENT foreclosure is in favor of
from the court confirming the foreclosure sale, to banks as mortgagees, a
recover the amount of the deficiency in his claim. Right of redemption
exists
DEFICIENCY JUDGMENT There could be a
No deficiency judgment
Definition: A judgment against a debtor for the deficiency judgment because there is no
unpaid balance of the debt if a foreclosure sale or judicial proceeding
a sale of repossessed personal property fails to BUT deficiency can be
yield the full amount of the debt due; also termed a recovered
deficiency decree. (Blacks Law Dictionary) Recovery of deficiency is Recovery of deficiency is
by mere motion for a by an independent
General rule: Sec. 6 provides for a deficiency deficiency judgment action
judgment which shall be rendered, on motion,
when the foreclosure sale did not produce Registration [Rule 68, Sec. 7]
proceeds sufficient to satisfy the judgment. A CERTIFIED COPY of the final order confirming the
sale shall be registered in the Registry of Deeds.
In extrajudicial foreclosure, the mortgagee can
also recover by action any deficiency in the If No Right Of If A Right Of Redemption
mortgage account which was not realized in the Redemption Exists Exists
foreclosure sale. [PNB v. CA (1999)] The Certificate of Title The Certificate of Title in
in the name of the the name of the
A motion for deficiency judgment may be made
mortgagor shall be mortgagor shall NOT be
only after the sale and after it becomes known that
cancelled, and a new cancelled, but the
a deficiency exists. [Governor of the Philippine
one issued in the name Certificate of Sale and
Islands v. Torralba Vda. de Santos (1935)]
of the purchaser. the order confirming the

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sale shall be registered Equity Of Redemption Right Of Redemption

and a brief where the mortgagee is
memorandum thereof the Philippine National
shall be made by the Bank or a bank or
Registrar of Deeds upon banking institution.
the certificate of title [Huerta Alba Resort, Inc.
v. CA (2000)]
If The Property Is If The Property Is Not
Redeemed Redeemed Confirmation of the sale of mortgaged real property
The Deed of The FINAL Deed of vests title in the purchaser including the equity of
Redemption shall be Sale executed by the redemption, it retroacts to the date of the sale. It
registered with the sheriff in favor of the cuts off all the rights or interests of the mortgagor
Registry of Deeds and a purchaser at the and of the mortgagee. [Lozame v Amores (1985]].
brief memorandum foreclosure sale shall
thereof shall be made be registered with the The motion for the confirmation of the sale
by the Registrar of Registry of Deeds. requires a hearing to grant an opportunity to the
Deeds on said mortgagor to show cause why the sale should
certificate of title. The Certificate of Title not be confirmed [Tiglao v Botones, 90 Phil 275],
in the name of the as by proof of irregularities therein or of gross
mortgagor shall be inadequacy of the price. Lack of notice vitiates
cancelled and a new the confirmation of the sale.
one shall be issued in
the name of the PARTITION
purchaser. Partition of property may be:
EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION Extrajudicial by agreement
Judicial compulsory; governed by Rule 69
Equity Of Redemption Right Of Redemption
Right of the defendant Right of redemption is Even if the parties resorted to judicial partition,
mortgagor to extinguish the right granted to the they may still make an amicable partition of the
the mortgage and retain debtor-mortgagor, his property. [Secs. 2 and 12]
ownership of the successor-in-interest or
property by paying the any judicial creditor of WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
amount fixed in the said debtor-mortgagor DEFENDANTS
decision of the court or any person having a Filed by person having the right to compel the
within 90 to 120 days lien in the property partition of real estate, [Sec. 1], or of personal
after entry of judgment subsequent to its property, or of both real and personal property.
or even after the mortgage or deed of [Sec. 13]
foreclosure sale but prior trust, under which the
to its confirmation. property is sold, to The plaintiff is the person who is supposed to be a
[Limpin v. Intermediate redeem the property co-owner of the property. The defendants are all
Appellate Court (1988)] within 1 year from the the co-owners, who are indispensable parties.
registration of the
sheriffs certificate of Sepulveda v. Pelaez (2005): All persons
foreclosure sale. [De considered as co-owners and interested in the
Castro v. Intermediate property to be partitioned are indispensable
Appellate Court [1988)] parties to the action and must be impleaded.
The mortgagor may The right of redemption
exercise his equity of in relation to a mortgage Exceptions to the Right to Ask for Partition
redemption in judicial is understood in the When there is a stipulation against it, not
foreclosure before the sense of a prerogative to exceeding 10 years [Art. 494, Civil Code]
sale is confirmed by the re-acquire mortgaged When partition is prohibited by the donor or
court (Raymundo v property after testator for a period not exceeding 20 years
Sunico, 1913; Rosales v registration of the [Art. 494, 1083 Civil Code]
Suba, 2003). foreclosure sale. It exists When partition is prohibited by law (e.g. ACP,
No right of redemption is only in the case of the party wall) [Art. 494, Civil Code]
recognized in a judicial extrajudicial foreclosure When the property is not subject to a physical
foreclosure, except only of the mortgage. division and to do so would render it

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UP COLLEGE OF LAW
unserviceable for the use for which is it
intended [Art. 495 Civil Code] or
When the condition imposed upon voluntary
heirs before they can demand partition has
not yet been fulfilled. [Art. 1084 Civil Code]
MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION
Contents of complaint for partition
Nature and extent of the complainants title
Adequate description of the real estate of which
the partition is demanded
All other persons interested in the property must
be impleaded. [Rule 69, Sec. 1]
TWO (2) STAGES IN EVERY ACTION FOR PARTITION
Determination of the propriety of partition
This involves a determination of whether the
subject property is owned in common and whether
all the co-owners are made parties in the case.
The order may also require an accounting of
rents and profits recovered by the defendant.
This order of partition is appealable. [Miranda v.
Court of Appeals (1976)]
If not appealed, then the parties may partition the
common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
meantime be executed. [De Mesa v. CA (1994)]
The actual partitioning of the subject property
This is also a complete proceeding and the
order or decision is appealable.
When there was a prior partition, the fact that the
share of each co-heir has not been technically
described and the title over the whole lot remains
uncancelled does not negate such partition.
There can be no partition again because there is
no more common property. [Noceda v. CA (1999)]
Crucillo v. IAC, 1999: Oral partition of land
when the same is fully consummated is valid
and binding upon the parties thereto.
Maglucot-aw et al. v. Maglucot et al. (2000): Parties
to a partition proceeding, who elected to take under
partition, and who took possession of the portion
allotted to them, are estopped to question title to
portion allotted to another party. A person cannot
claim both under and against the same instrument. In
other words, they accepted the lands awarded them
by its provisions, and they cannot accept the decree
in part, and repudiate it in part.
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
They must accept all or none. Parties who had
received the property assigned to them are
precluded from subsequently attacking its
validity of any part of it.
Partition may be inferred from circumstances
sufficiently strong to support the presumption.
Thus, after a long possession in severalty, a
deed of partition may be presumed.
Recitals in deeds, possession and occupation of
land, improvements made thereon for a long
series of years, and acquiescence for 60 years,
furnish sufficient evidence that there was an
actual partition of land either by deed or by
proceedings in the probate court, which had
been lost and were not recorded.
Where a tract of land held in common has been
subdivided into lots, and one of the lots has long been
known and called by the name of one of the tenants in
common, and there is no evidence of any subsequent
claim of a tenancy in common, it may fairly be inferred
that there has been a partition and that such lot was
set off to him whose name it bears.
Venue
Actions for partition should be filed in the RTC of
the province where the property or part thereof
is situated.
If several distinct parcels of land are situated in
different provinces, venue may be laid in the RTC of
any of said provinces. [Pancho v. Villanueva,(1956)]
ORDER OF PARTITION AND PARTITION BY AGREEMENT
Order of partition
After trial, if the court finds that the plaintiff has
the right to the property subject of partition, it
shall issue an order demanding the partition of
the real estate among all the parties in interest.
[Sec. 2] (Refers to 1st stage of partition)
Partition by Agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves
If they agree, proper instruments of conveyance
will be executed to effect the partition.
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pays to the other parties such amounts as the

After the execution of instruments of
conveyance, the court shall confirm the
partition through a final order.
The final order of partition and the
instruments of conveyance shall be
registered with the Registry of Deeds where
the property is situated. [Rule 69, Sec. 2]
If they do not agree, there will be a partition
by commissioners.
A party shall recover from another his just share
of rents and profits received by such other party
from the real estate in question, and the
judgment shall include an allowance for such
rents and profits. [Rule 69, Sec. 8]
A final order decreeing partition and accounting
may be appealed by any party aggrieved
thereby. [Rule 69, Sec. 2]
commissioners deem equitable
Exception: if one of the parties asks that the
property be sold instead of being so assigned,
then 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. [Rule 69, Sec. 5]
Commissioners Report
The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the
parties or the sale of the same.
Upon filing the report, the clerk of court shall
serve copies thereof on all interested parties
with notice that they are allowed 10 days
within which to file objections to the findings
of the report, if they so desire.

PARTITION BY COMMISSIONERS; APPOINTMENT OF

COMMISSIONERS, COMMISSIONERS REPORT; COURT
No proceeding had before or conducted by the
ACTION UPON COMMISSIONERS REPORT
commissioners shall pass the title to the
Appointment of commissioners property or bind the parties until the court
If the parties are unable to agree upon the accepts the commissioners report and
partition, the court shall appoint not more than 3 rendered judgment thereon. [Rule 69, Sec. 6]
competent and disinterested persons as
commissioners to make the partition, commanding
them to set off to the plaintiff and to each party in
interest such part and proportion of the property as
the court shall direct. [Rule 69, Sec. 3]

Duties of Commissioners [Rule 69, Sec. 4]:

view and examine the real estate, after due
notice to the parties to attend at such view
and examination
hear the parties as to their preference in the
portion of the property to be set apart to them
and the comparative value thereof
set apart the same to the parties in lots or parcels as
will be most advantageous and equitable, having
due regard to the improvements, situation and
quality of the different parts thereof.

General rule: If the commissioners should determine

that the real estate cannot be divided without
prejudice to the interests of the parties, the court may
order that the property be assigned to one of the
parties willing to take the same PROVIDED he

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Upon the expiration of the 10-day period, or PARTITION OF PERSONAL PROPERTY

even before the expiration of such period The provisions of Rule 69 shall apply to partitions
but after the interested parties filed their of estates composed of personal property, or of
objections to the report/statement of both real and personal property, in so far as the
agreement, the court, upon hearing, may: same may be applicable. [Rule 69, Sec. 13]
ACCEPT the commissioners report and
render JUDGMENT based upon it. PRESCRIPTION OF ACTION
RECOMMIT the report to the The right of action to demand partition does not
commissioners for further report of prescribe [De Castro v. Echarri (1911)], EXCEPT
facts if there is cause to do the same where one of the interested parties openly and
SET ASIDE the report and APPOINT adversely occupies the property without recognizing
new commissioners the co-ownership [Cordova v. Cordova (1958)] in
ACCEPT the report IN PART and which case, acquisitive prescription may set in.
REJECT it IN PART
Make such order and render such If a co-owner repudiates the co-ownership and
judgment as shall effectuate a fair and makes known such repudiation to the other co-
just partition of the real estate or of its owners, then partition is no longer a proper
value, if the property is assigned or remedy of the aggrieved co-owner. He should
sold between the several owners file an accion reivindicatoria, which is
thereof. [Rule 69, Sec. 7] prescriptible. [Roque v. IAC (1988)]

FORCIBLE ENTRY AND UNLAWFUL DETAINER

(Asked in the 2000 Bar Exam in Relation to a
JUDGMENT AND ITS EFFECTS
Pending Action for Specific Performance)
Contents of Judgment Effects of Judgment
DEFINITIONS AND DISTINCTION
If Actual Partition Is Properly Made Forcible Entry
Judgment shall state Judgment shall vest (a) Resorted to when a person is deprived of
definitely, by metes and in each party to the possession of any land or building by (1) force, (2)
bounds and adequate action in severalty intimidation, (3) strategy, (4) threat, or (5) stealth.
description, the particular the portion of the (FISTS)
portion of the real estate real estate assigned (b) Must be brought at any time within 1 year after
assigned to each party. to him. such unlawful deprivation in the proper MTC
If The Whole Property Is Assigned To One Of The against the person unlawfully depriving him of
Parties After Payment possession or against any person or persons
Judgment shall state the Judgment shall vest claiming under them.
fact of such payment and in the party making (c) Action must be for the restitution of possession of
of the assignment of the the payment the property together with damages and costs. [Rule
real estate to the party whole of the real 70, Sec. 1]
making the payment. estate free from any (d) The owners of a property have no authority to use
interest on the part force and violence to eject alleged usurpers who
of the other parties. were in prior physical possession of it.
If Property Is Sold And Sale Is Confirmed By The Court (e) They must file the appropriate action in court and
Judgment shall state the Judgment shall vest should not take the law into their own hands.
name of the purchaser or the real estate in the [Laurora v. Sterling Technopark (2003)]
purchasers and a definite purchaser(s),
description of the parcels of making the Unlawful Detainer
real estate sold to each payment(s) free Resorted to when a lessor, vendor, vendee, or
purchaser from the claims of other person against whom the possession of
any parties to the any land or building is unlawfully withheld,
action. after the expiration or termination of the right
to hold possession by virtue of an express or
implied contract.
A certified copy of the judgment shall in either case May also be brought by the legal representative
be recorded in the registry of deeds of the place in or assigns of any such lessor, vendor,
which the real estate is situated. [Rule 69, Sec. 11] vendee, or other persons.

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Must be brought at any time within 1 year after (e) in the proper MTC or MeTC
the unlawful withholding of possession in the
proper Municipal Trial Court against the Nature:
person unlawfully withholding possession or special civil action involving realty;
persons claiming under them. subject to the Rules on Summary Procedure;
Action must be for the restitution of possession [Rule 70, Sec. 3]
of property together with damages and costs. under the original exclusive jurisdiction of first
[Rule 70.1] level courts;
nature of the action is determined by the
Forcible Entry Unlawful Detainer allegation of the complaint and the character
Possession becomes Possession was lawful at of the relief sought; [Abrin v. Campos (1991)]
unlawful right from the first but later becomes one co-owner may institute the action.
very start (i.e. from the illegal, as when the lease
time of entry) as he contract has expired and Accion Publiciana
acquires possession by the lessee refuses to A plenary action for recovery of the right to
FISTS. vacate the premises possess and which should be brought in the proper
despite demand. regional trial court when the dispossession has
The deprivation of The unlawful withholding lasted for more than one year.
physical possession of of possession is made
land and building is after the expiration or Accion Reivindicatoria
effected through force, termination of the right to Also called accion de reivindicacion, it seeks the
intimidation, strategy, hold possession under recovery of ownership and includes the jus
threat or stealth any contract, express or utendi and the jus fruendi, which must be
(FISTS). implied. brought in the proper regional trial court.
The issue centers on The issue centers on
who was in prior whether the defendants It is thus an action whereby plaintiff alleges ownership
possession de facto. right to possess has over a parcel of land and seeks recovery of its full
expired or not. possession. [Javier v. Veridiano (1994)]
Previous demand upon Previous demand to
defendant to vacate not vacate required HOW TO DETERMINE JURISDICTION IN ACCION
PUBLICIANA AND ACCION REINVINDICATORIA
required. (jurisdictional).
The plaintiff must allege The plaintiff need not be A/P and A/R are actions involving title to or
and prove that he was in in prior physical possession of real property or an interest therein
prior physical possession. RTC has jurisdiction where the assessed value of
possession of the the property exceeds P20K or, in MM, P50k
premises until deprived MTC has jurisdiction if the assessed value does
thereof. not exceed said amounts
1-year period counted 1-year period counted
WHO MAY INSTITUTE THE ACTION AND WHEN ;
from date of actual from date of last demand
AGAINST WHOM THE ACTION MAY BE MAINTAINED
entry on the land. or last letter of demand.
Who may File, When, Against
DISTINGUISHED FROM ACCION PUBLICIANA AND
Whom Who
ACCION REINVINDICATORIA
A person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
Accion Interdictal
stealth, or a lessor, vendor, vendee, or other
(a) the summary action for forcible entry
person against whom the possession of any land
(detentacion) or building is unlawfully withheld after the
where the defendants possession of property is expiration or termination of the right to hold
illegal ab initio, or possession, by virtue of any contract, express or
the summary action for unlawful detainer implied, or the legal representatives or assigns of
(desahucio) where the defendants possession any such lessor, vendor, vendee, or other person
was originally lawful but ceased to be so by the
expiration of his right to possess,
When
both of which must be brought within one year
At any time within 1 year after such unlawful
from the date of actual entry to the land, in
deprivation or withholding of possession in the
case of forcible entry, and from the date of
proper MTC
last demand, in case of unlawful detainer,

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Against Whom
The person or persons unlawfully withholding or
depriving of possession, OR any person or
persons claiming under them [Rule 70, Sec. 1]
PLEADINGS ALLOWED
Pleadings must be verified. [Rule 70, Sec. 4]
Allowed pleadings [Rule 70, Sec. 4]:
Complaint
Compulsory Counterclaim pleaded in the answer
Cross-claim pleaded in the answer
Answer
ACTION ON THE COMPLAINT
From the examination of the allegations in the
complaint and such evidence as may be
attached thereto, the court may:
DISMISS the case outright based on the
grounds for dismissal for ordinary civil actions
apparent in the complaint, or
ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70, Sec. 5]
Cases requiring referral to conciliation, where there
is no showing of compliance with such
requirement, shall be dismissed without prejudice,
and may be revived only after that requirement
have been complied with. [Rule 70, Sec. 12]
WHEN DEMAND IS NECESSARY
In cases of unlawful detainer, the 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, or
by posting such notice on the premises if no person be
found thereon, and the lessee fails to comply
therewith after 15 days in the case of land or 5 days
in the case of buildings. [Rule 70, Sec. 2]
Exceptions (prior demand not required):
Where purpose of the action is to terminate the
lease by reason of the expiry of its term, and is
not for failure to pay rentals or comply with the
terms of the lease contract. [Arquelada v.
Philippine Veterans Bank (2000) ]
When the purpose of the suit is not for ejectment
but for the enforcement of the terms of the
contract. [Guanson v. Ban (1946)]
When the defendant is not a tenant but a mere
intruder. [id]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Jakihaca v. Aquino (1990): Demand upon a
tenant may be oral.
Dakudao v. Consolacion (1983): A person who
occupies the land of another at the latter's tolerance
or permission, without any contract between them is
necessarily bound by an implied promise that he will
vacate upon demand, failing which, an action for
unlawful detainer may be instituted against him.
Muoz v. CA (1992): This rule as to tolerance does
not hold true in a case where there was forcible entry
at the start, but the lawful possessor did not attempt
to oust the intruder for over 1 year, and only thereafter
filed forcible entry suit following demand to vacate.
Refugia v. CA (1996): Tolerance must be
presented right from the start of possession
sought to be recovered to categorize a cause of
action as one of unlawful detainer.
Zobel v. Abreu (1956): When failure to pay rent or
comply with the condition of lease is the ground for
ejectment, plaintiff should give 2 demands (which
may be embodied in 1 demand letter):
demand to pay rental or comply with conditions of
the lease, and if this is not complied with,
demand to vacate
Yap v. Cruz (1992): Notice and demand to
vacate is required on a lease on a month-to-
month period to render effective the termination
of the lease upon the expiration of the month,
and prevent an implied renewal of the lease.
Penas, Jr. v. CA (1994): An alternative demand to
either renew the expired lease contract at a higher
rental rate or vacate is not a definite demand to
vacate and therefore, insufficient basis for the filing
of an action for unlawful detainer.
Uy v. CA (1989): Refusal to collect or accept rentals
is not a defense. There must be consignation.
Procedure
Filing of complaint.
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UP COLLEGE OF LAW
After the court has examined the allegations
in the complaint and supporting evidence
attached to the same, the court may:
DISMISS the case outright based on the
grounds for dismissal for ordinary civil
actions apparent in the complaint, or
ISSUE SUMMONS, if no ground for dismissal
is found. [Rule 70, Sec. 5]
Cases requiring referral to conciliation, where there
is no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70, Sec. 12]
The defendant shall file his ANSWER and serve
a copy of it to the plaintiff within 10 days from
service of summons. [Rule 70, Sec. 6]
Failure of the defendant to answer within the
period provided above shall give power to the
court, motu propio or on motion, to render
judgment as may be warranted by the facts
alleged in the complaint and limited to what is
prayed for therein. [Rule 70, Sec. 7]
Affirmative and negative defenses and cross-
claims and compulsory counterclaims not
pleaded in the answer are deemed waived.
Exception: lack of jurisdiction over the
subject matter.
Answers to the counterclaims or cross-claims
shall be served and filed within 10 days from
service of the answer in which they are pleaded.
Where there is a defense of tenancy, there
must be a preliminary hearing on the question
of tenancy relations. [Bayog v. Natino (1996)]
If there is a prima facie showing of tenancy,
the court should dismiss the case for lack of
jurisdiction (jurisdiction belongs to the
DARAB). [Baranda v. Padios (1987)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Not later than 30 days after the last answer
is filed, a PRELIMINARY CONFERENCE
shall be held.
Rule 18 applicable. Effects of failure to appear:
When the plaintiff does not appear
It shall be a cause for dismissal of his
complaint
All cross-claims shall be dismissed
The defendant who appears in the
absence of the plaintiff shall be entitled
to the judgment on his counterclaim
When the defendant does not appear
The plaintiff shall be entitled to judgment
(This is true when there is only one
defendant or when all of the defendants
did not appear)
General rule: No postponement of the
preliminary conference shall be granted.
Exception: Highly meritorious grounds and
without prejudice to such sanctions as the
court in the exercise of sound discretion may
impose on the movant. [Rule 70, Sec. 8]
The court shall issue an ORDER stating matters
taken up during the preliminary conference within
5 days after the termination of the same.
Contents of the Order:
Whether the parties have arrived at an amicable
settlement, and if so, terms thereof;
The stipulations or admissions entered into
by the parties;
Whether, on the basis of the pleadings and the
stipulations and admissions made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered within
30 days from issuance of the order;
A clear specification of material facts which
remain controverted;
Such other matters intended to expedite the
disposition of the case. [Rule 70, Sec. 9]
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UP COLLEGE OF LAW
The parties shall submit affidavits of their
witnesses 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 within 10 days from
receipt of the order. [Rule 70, Sec. 10]
Affidavits required to be submitted shall state
only facts of direct personal knowledge of the
affiants which are admissible in evidence,
and shall show their competence to testify to
the matters stated therein.
Violation of this requirement may subject the
party or the counsel who submits the same to
disciplinary action and shall be cause to
expunge the inadmissible affidavit or portion
thereof from the records. [Rule 70, Sec. 14]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
Judgment
General Rule: The court shall render
judgment within 30 days from the date of
its receipt of the affidavits and position
papers OR the expiration of the period for
filing the same. [Rule 70, Sec. 11]
Exception: Should the court find it necessary
to clarify certain material facts, it may during
the 30-day period issue an ORDER
specifying the matters to be clarified and
require the parties to submit affidavits or
other evidence on the said matters within 10
days from receipt of said order. Judgment
shall be rendered within 15 days after receipt
of the last affidavit or the expiration of the
period for filing the same. [Ibid.]
The court shall not resort to the foregoing
procedure just to gain time for the
rendition of the judgment. [Id.]
If the trial court finds that the allegations of
the complaint are TRUE, it shall render
judgment in favor of the plaintiff for
restitution of the premises,
the just sum due as arrears of rent or
reasonable compensation for the use
and occupation of the premises.
attorneys fees and costs. [Rule 70, Sec. 17]
If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render
judgment for the defendant to recover his
costs. [Ibid.]
The judgment rendered in an action for forcible
entry shall be conclusive with respect to the
possession only, and it shall not in any way
affect the title or ownership of the land or
building. Hence, such judgment shall not bar an
action between the same parties with respect to
the title of the land or building.
The judgment or final order shall be
appealable to the appropriate RTC. [Rule
70, Sec. 18]
Execution of judgment
General Rule: If judgment is rendered against
a defendant, execution shall issue immediately.
[Rule 70, Secs. 19 and 21]
Exception: Appeal has been duly perfected by
the defendant and bond has been posted.
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UP COLLEGE OF LAW
Lu v. Siapno (2000): Although immediately
executory, the judge should not order immediate
execution in his decision.
Kaw v. Anunciacion (1995): There must be
notice of the judgment and a motion with notice
to the adverse party.
PRELIMINARY INJUNCTION AND PRELIMINARY
MANDATORY INJUNCTION
Preliminary injunction
The court may grant preliminary injunction in
accordance with Rule 58 to prevent the
defendant from committing further acts of
dispossession against the plaintiff.
A possessor deprived of his possession may move
for a preliminary mandatory injunction within 5 days
to restore him in his possession of the property.
The court then shall decide the motion within 30
days from the filing thereof. [Rule 70, Sec. 15]
RESOLVING DEFENSE OF OWNERSHIP
When ownership is raised as a defense, the
court may resolved the issue of ownership but
only under these conditions:
When the issue of possession cannot be resolved
without resolving the issue of ownership; and
The issue of ownership shall be resolved only to
determine the issue of possession [Rule 70,
Sec. 16].
When the defendant asserts ownership over the
property, the inferior court is not divested of its
jurisdiction [Rural Bank of Sta. Ignacia, Inc v
Dimatulac (2003)]
The judgment rendered in an action for forcible
entry or unlawful detainer shall be conclusive with
respect to the possession only, and it shall not in
any way affect the title or ownership of the land or
building. Hence, such judgment shall not bar an
action between the same parties with respect to
the title of the land or building. [Rule 70, Sec. 18]
Matters Not Constituting Prejudicial Question
to Ejectment [Arcal v. Court of Appeals (1998)]
Injunction suits instituted in the RTC by defendants
in ejectment actions in the municipal trial courts
or other courts of the first level [Nacorda v.
Yatco (1996)] do not abate the latter, and
neither do proceedings on consignation of
rentals [Lim Si v. Lim (1956)]
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
An accion publiciana does not suspend an
ejectment suit against the plaintiff in the
former [Ramirez v. Bleza (1981)].
A writ of possession case where ownership is
concededly the principal issue before the Regional
Trial Court does not preclude nor bar the
execution of the judgment in an unlawful detainer
suit where the only issue involved is the material
possession or possession de facto of the premises
[Heirs of F. Guballa, Sr. v CA (1988)].
An action for quieting of title to the property is not a
bar to an ejectment suit involving the same
property [Quimpo v. de la Victoria (1972)].
Suit for specific performance with damages do not
affect ejectment actions (e.g., to compel renewal
of lease contract) [Desamito v. Cuyegkeng
(1966)]; (Asked in the 2000 Bar Exam)
An action for reformation of instrument (e.g. from
deed of absolute sale to one of sale with
pacto de retro ) does not suspend an
ejectment suit between the same parties
[Judith v. Abragan (1975)].
An action for reconveyance of property or
accion reivindicatoria also has no effect on
ejectment suits regarding the same property
[Del Rosario v. Jimenez (1963)].
Neither do suits for annulment of sale, or title, or
document affecting property operate to abate
ejectment actions respecting the same property
[Salinas v. Navarro - annulment of deed of sale
with assumption of mortgage and/or to declare the
same an equitable mortgage (1983); Ang Ping v.
RTC - annulment of sale of title (1987); Caparros
v. C.A. - annulment of title (1989); Dante v. Sison -
annulment of sale with damages 174 SCRA 517;
Galgala v. Benguet Consolidated, Inc. - annulment
of document (1989)].
HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT
General Rule: If judgment is rendered against a
defendant, execution shall issue immediately.
[Rule 70, Sec. 19 and 70.21]
Exception: Appeal has been duly perfected by
the defendant and bond has been posted.
Procedure for staying the execution of judgment:
defendant perfects his appeal in due time;
defendant files a sufficient supersedeas bond
approved by the Municipal Trial Court; and
during the pendency of the appeal, he deposits
with the appellate court the amount of rent
due from time to time under the contract, if
any, on or before the 10th day of each
succeeding month. [Rule 70, Sec. 19]
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UP COLLEGE OF LAW
BUT upon motion of the plaintiff within 10 days from
the perfection of the appeal to the RTC, the court may
still issue a preliminary mandatory injunction to
restore the plaintiff in possession if the court is
satisfied that the defendants appeal is frivolous or
dilatory, or that the appeal of the plaintiff is prima facie
meritorious. [Rule 70, Sec. 20]
SUMMARY PROCEDURE, PROHIBITED PLEADINGS
Prohibited pleadings and motions [Rule 70, Sec. 13]:
Motion to dismiss
Exceptions:
Motion to dismiss based on lack of
jurisdiction over the subject matter
Motion to dismiss for failure to comply with
section 12 (referral to Lupon for conciliation)
Motion for a Bill of Particulars
Motion for New Trial
Motion for reconsideration of a judgment
Motion for reopening of trial
Petition for relief from judgment
Motion for extension of time to file pleadings,
affidavits or other papers
Memoranda
Petition for Certiorari, Mandamus or Prohibition
against any interlocutory order issued by the
court
Motion to declare defendant in default
Dilatory motions for postponement
Reply
Third-party complaints
Interventions
CONTEMPT
Definition
Contempt of court
Is a defiance of the authority, justice or dignity of
the court, such conduct as tends to bring the
authority and administration of the law into
disrespect of, to interfere with, or prejudice
parties litigant or their witnesses during litigation.
It is defined as a disobedience to the court by setting
up an opposition to its authority, justice and dignity.
It signifies not only a willful disregard or
disobedience to the courts order but such conduct
as tends to bring the authority of the court and the
administration of law into disrepute or in some
manner to impede the due administration of justice.
[Heirs of Trinidad de Leon Vda. de Ramos v. Court
of Appeals (2004)]
KINDS OF CONTEMPT
According to the Manner of Commission
Direct
Indirect
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
According to Nature
Civil
Criminal
PURPOSE AND NATURE OF EACH
Direct Contempt (Contempt In Facie Curiae)
A misbehavior committed in the presence of or so
near a court or judge so as to obstruct or interrupt
the proceedings before the same, including:
disrespect toward the court
offensive personalities toward others
refusal to be sworn or to answer as a witness or
to subscribe an affidavit/deposition when
lawfully required to do so.
It can be punished summarily without hearing. It
is conduct directed against or assailing the
authority and dignity of the court or a judge, or in
the doing of a forbidden act. [Encinas v. National
Bookstore (2005); Rule 71, Sec. 1]
Indirect Contempt (Constructive Contempt)
A misbehavior perpetrated outside of the sitting
of the court. [Patricio v. Suplico (1991)]
Acts of indirect contempt:
Misbehavior of an officer of the court in the
performance of his official duties or in his
official transactions;
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 to 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;
Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
Assuming to be an attorney or an officer of the
court, and acting as such without authority;
Failure to obey a subpoena duly served;
The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue
of an order or process of a court held by him.
[Rule 71, Sec. 3]
Two Aspects of Contempt Of Court
Civil Contempt is the failure to do something ordered
to be done by a court or a judge for the benefit of the
opposing party therein. [People v. Godoy, 1995];
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remedial or compensatory in nature; instituted Radio Phils Network v. Yap (2012):_To be

for the benefit of private party.
Criminal Contempt is conduct directed against the
authority and dignity of a court or of a judge, as in
unlawfully assailing or discrediting the authority
and dignity of a court or a judge or in doing a
forbidden act [People v. Godoy, 1995]; punitive in
nature, thus, the proceedings are to be conducted
in accordance with the principles and rules
applicable to criminal cases [SEC v. Recto, 1999].
considered contemptuous, an act must be clearly
contrary to or prohibited by the order of the court or
tribunal. A person cannot, for disobedience, be
punished for contempt unless the act which is
forbidden or required to be done is clearly and
exactly defined, so that there can be no reasonable
doubt or uncertainty as to what specific act or thing
is forbidden or required.
REMEDY AGAINST DIRECT CONTEMPT; PENALTY

SEC v. Recto (1999): The violation of a TRO REMEDY AGAINST INDIRECT CONTEMPT; PENALTY
issued by the SEC or any quasi-judicial tribunal
is criminal contempt so that acquittal of the HOW CONTEMPT PROCEEDINGS ARE COMMENCED
respondents is unappealable. See Annex G.

Crucillo v. IAC (1999): A writ of execution Procedure for Indirect Contempt

issued by a court after 5 years from entry of final [Secs. 4-6]
judgment is void, and disobedience thereto does Who Court Motu Propio Party
not constitute indirect contempt. Initiates
How it is By ORDER or any By a VERIFIED
Panado v. CA (1998): The power to declare a initiated WRITTEN CHARGE PETITION with
person in contempt of court serves to protect requiring supporting
and preserve the dignity of the court, the respondent to show particulars and
solemnity of the proceedings therein and the cause why he certified true
administration of justice. should not be held copy of
in contempt. documents or
But this must be wielded sparingly. For this papers involved
and full
power should be exercised on the preservative
and not on the vindictive principle. Where it is When the contempt is directed against
initiated an RTC or equivalent or higher rank:
Only occasionally should the court invoke its inherent Same court
power in order to retain that respect without which the When the contempt is directed against
administration of justice must falter or fail. a lower court:
(a) RTC of the place where the lower
LandBank v. Listana (2003): Only the court which court is sitting; or
rendered the order commanding the doing of a (b) in same lower court subject to
certain act is vested with the right to determine appeal to higher court
whether or not the order has been complied with, Hearing If hearing is not immediately conducted,
or whether a sufficient reason has been given for and Bail respondent may be released upon filing
non-compliance, and, therefore, whether a of BOND in the amount fixed by the
contempt has been committed. court.
Appeal Appeal may be taken in proper courts
The power to determine the existence of as in criminal cases.
contempt of court rests exclusively with the court Execution Execution of judgment shall not be
contemned. No court is authorized to punish a of suspended even by appeal UNLESS
contempt against another. Judgment bond is filed conditioned upon the
performance by the respondent of that
Quasi-judicial agencies that have the power to cite judgment should it be decided against
persons for indirect contempt pursuant to Rule 71 him on appeal.
can only do so by initiating them in the proper RTC.
It is not within their jurisdiction and competence to ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT
decide the indirect contempt cases. These matters Misbehavior of an officer of the court in the
are still within the province of the RTCs. performance of his official duties or in his
official transactions;

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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 to 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;
Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
Assuming to be an attorney or an officer of the
court, and acting as such without authority;
Failure to obey a subpoena duly served;
The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue
of an order or process of a court held by him.
[Rule 71, Sec. 3]
WHEN IMPRISONMENT SHALL BE IMPOSED
When the contempt consists in the refusal or
omission to do an act which is yet in the power
of the respondent to perform, he may be
imprisoned by order of the court concerned until
he performs it. [Rule 71, Sec. 8].
The respondent carried the keys to his prison in
his own pocket. [Galvez v. Republic Surety &
Insurance Co., Inc. (1959)]
Only the judge who ordered the confinement of the
person for contempt of court can issue the Order of
Release. [Inoturan v Limsiaco, Jr. (2005)]
Rule 71, Sec. 8 does not apply to tenants who
refused or failed to pay their rentals to the special
CIVIL PROCEDURE BAR OPERATIONS COMMISSION
administratrix of the property. The non-payment
of rentals, which is a civil debt, is covered by the
constitutional guarantee against imprisonment.
[Regalado]
CONTEMPT AGAINST QUASI-JUDICIAL BODIES
Rule 71 applies to contempt committed against
persons, entities, bodies or agencies exercising
quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted
pursuant to authority granted to them by law to
punish for contempt.
Where to file: RTC of the place wherein the
contempt has been committed. [Rule 71, Sec. 12]
It is not within the jurisdiction and competence of
quasi-judicial bodies to decide indirect contempt
cases. The requirement for a verified petition
must also be complied with (e.g. DARAB has no
power to decide the contempt charge filed
before it). [Land Bank v Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on all
Quasi-Judicial entities or supplements their rules,
unless the applicable law provides otherwise.
Acts or violations against quasi-judicial bodies
punishable as contempt: where a person, without
lawful excuse, fails to appear, make oath, give
testimony or produce documents when required to do
so by the official or body exercising such powers.
Other acts or violations cannot be punished as
contempt unless specifically defined in the governing
law as contempt of court or if it authorizes the quasi-
judicial body to punish for contempt, and providing the
corresponding penalty. [People v. Mendoza (1953),
13, Ch. 3, Bk VII, Admin Code of 1987]
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ANNEX A
(1) Service on person associated in If sued under the name by which they are commonly known Serve upon
an entity without juridical either:
personality [Rule 14, Sec. 8] (a) Any/all the defendants;
(b) Person in charge of the office
The service does not bind individually any person whose connection with the
entity was already severed before the service
(2) Service upon minors and Serve upon the minor/incompetent and on his legal guardian.
incompetents [Rule 14, Sec. 10] (a) If there is no guardian, plaintiff may apply for the appointment of a
guardian ad litem.
If minor, may serve on his parents.
Service upon prisoner [Rule 14, Serve upon the officer having management of the
jail/prison Sec. 9]
(4) Service upon domestic private Serve upon either the:
juridical entity [Rule 14, Sec. 11] (1) President
(2) Managing partner
(3) General manager
(4) Corporate secretary
(5) Treasurer
(6) In-house counsel
(5) Service upon foreign private Serve upon the resident agent;
juridical entity [Rule 14, Sec. 12] Otherwise, upon either:
(1) Government official designated by law;
(2) Any officer or agent of the corporation within the Philippines
(6) Service upon public corporations If the defendant is the Republic of the Philippines Serve upon the OSG
[Rule 14, Sec. 13] If the defendant is a province/city/municipality or like public corporations

Serve upon the executive head or other officers as the law/court may direct
(7) Extraterritorial service [Rule 14, Requisites: (Asked in the 1997 and 2008 Bar Exam)
Sec. 15] (1) Defendant does not reside or is not found in the Philippines;
(2) Action either:
(a) Affects the plaintiffs personal status;
(b) Relates to or the subject matter of which is property within the
Philippines in which defendant has a lien/interest;
(c) Demands a relief which consists wholly/partially in excluding the
defendant from any interest in any property within the Philippines;
(d) Has defendants property in the Philippines, attached.
Modes of service:

(1) With leave of court, serve outside the Philippines by personal service; or
(2) With leave of court, serve by publication in a newspaper of general
circulation, in which case copy of the summons and order of the court
must also be sent by registered mail to the defendants last known
address;
(3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period of at
least 60 days within which the defendant must answer.
(8) Service upon a resident With leave of court, may serve extraterritorially
temporarily out of the
Philippines [Rule 14, Sec. 16]
(9) Service upon a defendant whose With leave of court, by publication in a newspaper of general circulation
identity or whereabouts are
unknown [Rule 14, Sec. 14]

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ANNEX B
Subpoena Duces Tecum OrdeffFor Production or Inspection

Nature
Process requiring a person to bring with him any Order any party to produce and permit the
books, documents, documents, or other things inspection and copying or photographing, by or on
under his control or possession. behalf of the moving party,
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

Order any party to 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.
To whom directed
To any person Only to a party
When it may be asked
Only during trial Before and/or during trial
Issued by whom
Issued by a court before whom the witness is required Issued by the court where the action is pending
to attend, or court where the deposition is to be taken
or clerk or body authorized by law or any justice of the
Supreme Court or CA in any case or investigation
pending within the Philippines
When issued
Issued upon request to the clerk (no notice) Issued upon motion (application with notice to the
other party)
W/N it is necessary to show good cause
NO YES
Grounds for quashal

unreasonable, oppressive, irrelevant, or No good cause shown
the person in whose behalf the subpoena is
issued fails to advance the reasonable costs
of the production thereof
Consequence of disobedience
Constitutes contempt of the court from which the See Rule 29, Sec. 3
subpoena is issued

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ANNEX C
Provision Highlights Applicability

Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to PARTY OR DEPONENT /WITNESS IN
answer any question upon oral examination (a) RULE 23 (depositions de bene
(a) the examination may be completed on other matters or esse),
(b) adjourned as the proponent of the question may prefer. (b) RULE 24 (depositions in perpetua
The proponent may thereafter apply (i.e., by MOTION FOR THE rei memoriam)
ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court (c) RULE 25. INTERROGATORIES TO
of the place where the deposition is being taken, for an order to compel PARTIES
an answer.
IF THE APPLICATION IS GRANTED

(a) the court shall require the refusing party or deponent to answer the
question or interrogatory, and
(b) 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 attorney's 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 attorney's fees.
Section 2. Contempt of court. If a party or other witness PARTY OR WITNESS IN
(a) refuses to BE SWORN OR (a) RULE 23 (depositions de bene
(b) refuses to answer any question esse),
(b) RULE 24 (depositions in perpetuam
after being directed to do so by the court of the place in which the rei memoriam)
deposition is being taken, the refusal may be considered a contempt of
that court.
Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY PARTY or an OFFICER OR MANAGING
FOR: AGENT OF A PARTY in RULE 23, 24,
25 who refuses to obey an order made
An order under RULE 29 Section 1
(a) that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the PARTY who refuses to obey an order
paper, or the physical or mental condition of the party, under RULE 27 to produce any
(b) or any other designated facts shall be taken to be established for the document or other thing for inspection,
purposes of the action in accordance with the claim of the party or to permit entry upon land
obtaining the order;
PARTY who refuses to obey an order
An order made under RULE 28 requiring him to
(a) refusing to allow the disobedient party to support or oppose take a physical examination
designated claims or defenses or
(b) prohibiting him from introducing in evidence designated documents (APPLIES TO all modes of discovery
or things or items of testimony, or except RULE 26 ON REQUEST FOR
(c) from introducing evidence of physical or mental condition; ADMISSION BY AN ADVERSE PARTY)

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; and

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.
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Provision Highlights Applicability

Section 4. Expenses on refusal to admit. PARTY SERVED WITH A REQUEST

If a party after being served with a request under Rule 26 RULE 26 ADMISSION BY AN
(a) refuses to admit the genuineness of any document or the truth of any ADVERSE PARTY
matter of fact and
serves a sworn denial thereof, and
if the party requesting the admissions thereafter proves the genuineness
of such document or the truth of any such matter of fact
he may apply to the court for an order requiring the other party to
pay him the reasonable expenses incurred in making such
proof, including attorney's fees.

Unless the court finds THAT THERE WERE GOOD REASONS FOR THE
DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL
IMPORTANCE, SUCH ORDER SHALL BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS. PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY
If a party or an officer or managing agent of a party RULE 23 (depositions de bene esse),
wilfully fails to appear before the officer who is to take his deposition, RULE 24 (depositions in perpetuam rei
after being served with a proper notice, or memoriam)
fails to serve answers to interrogatories submitted under Rule 25 after RULE 25 INTERROGATORIES TO
proper service of such interrogatories, PARTIES
The court on motion and notice, may

strike out all or any part of any pleading of that party, or

dismiss the action or proceeding or any part thereof, or
enter a judgment by default against that party,
and in its discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES. Applies to all provisions in Rule 29
requiring a noncompliant party or
Expenses and attorney's fees are not to be imposed upon the Republic of witness (who represents the Republic
the Philippines under this Rule in an official capacity) to pay.

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ANNEX D
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding)

If no appeal has been perfected, or the

If an appeal has been perfected and
period of appeal has expired duly resolved, there are two ways by
which execution can be carried out

Prevailing Party applies (by motion) for a

writ of execution, which is granted by the Prevailing party files a The appellate court
judge since it is a matter of right motion in the court of may, on motion in the
origin, submitting same case, when the
therewith certified true interest of justice so
copies of the judgment or requires, direct the
judgments or final order court of origin to issue
or orders sought to be the writ of execution.
enforced and of the entry
thereof, with notice to
the adverse party1.

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ANNEX E
Situation 1: Trial Court still has Situation 2: Trial court has lost
jurisdiction over the case and is in jurisdiction
possession of either the original
record or the record on appeal, as
the case may be.

In Situation1, prevailing party files a MOTION WITH

NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situation2, prevailing party files the motion
for execution pending appeal in the appellate court.

Discretionary execution may be

granted only for GOOD REASONS to
be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the
proper court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against
whom it 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

IN CASE the judgment w hich was executed pending appeal is reversed

totally or partially, or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of damages as
equity and justice may w arrant under the circumstances

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ANNEX F
Certiorari Prohibition Mandamus
(Asked In 2000 And 2006 Bar (Asked In The 2006 Bar Exam)
Exams)
Grounds
(a) When any tribunal, board or (a) When the proceedings of any (a) When any tribunal, corporation,
officer exercising judicial or tribunal, corporation, board, board, officer or person
quasi-judicialfunctionshas officer or person, whether (1) unlawfully neglects the
acted: exercising judicial, quasi- performance of an act which
(1) without or in excess of its judicial, or ministerial functions, the law specifically enjoins as
jurisdiction; or are a duty resulting from an
(2) with grave abuse of discretion (1) without or in excess of its or office, trust or station; or
amounting to lack or excess his jurisdiction; or (2) unlawfully excludes another
of its or his jurisdiction1 (2) with grave abuse of discretion from the use and enjoyment
(b) AND there is no appeal, or any amounting to lack or excess of a right or office to which
plain, speedy, and adequate of its or his jurisdiction such other is entitled
remedy2 in the ordinary course of (b) AND there is no appeal or any (b) AND there is no other plain,
law. (Rule 65, Sec. 1) other plain, speedy, and speedy and adequate remedy in
adequate remedy in the ordinary the ordinary course of law. (Rule
course of law. (Rule 65, Sec. 2) 65, Sec. 3)
Purpose
To correct an act performed by the To prevent the commission or To compel the performance of the
respondent carrying out of an act act desired
Act sought to be controlled
Discretionary acts Discretionary and ministerial acts Ministerial acts
Petitioner
Aggrieved person Aggrieved person Aggrieved person
Respondent3
Those exercising judicial or quasi- Those exercising judicial and/or Those exercising judicial and/or
judicial functions non-judicial functions non-judicial functions
Form of petition
(a) Verified (a) verified (a) verified
(b) alleging the facts with certainty (b) alleging the facts with certainty (b) alleging the facts with certainty
(c) PRAYER: that judgment be (c) PRAYER: that judgment be (c) PRAYER: that judgment be
rendered annulling or modifying rendered commanding the rendered commanding the
the proceedings of such tribunal, respondent to desist from respondent, immediately or
etc., and granting such incidental further proceedings in the action some other time to be specified
reliefs as law and justice may or matter specified therein, or by the court, to do the act
require. otherwise granting such required to be done to protect
(d) accompanied by a certified true incidental reliefs as law and the rights of the petitioner, and
copy of the subject judgment, justice may require. to pay the damages sustained by
etc., copies of all relevant (d) accompanied by a certified true the petitioner by reason of the
pleadings and documents, and a copy of the subject judgment, wrongful acts of the respondent.
certification of non-forum etc., copies of all relevant (d) contains a certificate of non-
shopping. pleadings and documents, and a forum shopping.
certification of non-forum
shopping.

Without jurisdiction If respondent does not have the legal power to determine the case
Excess of jurisdiction If respondent has the legal power to determine the case but oversteps such power
Grave abuse of discretion If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of his judgment
A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts
of the lower court or agency. [Silvestre v. Torres (1946)]
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or
person, the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or
persons interested in sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and
defend, both in his or their own behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx

If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65, Sec. 5]
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ANNEX G
Direct Contempt Indirect Contempt

How Committed
Can be committed only in the presence of or so near a Can be committed anywhere as long as the acts
court or judge. mentioned in Sec. 3 are done.
Nature of Proceedings
The person guilty of misbehavior is summarily adjudged The person guilty of misbehavior may be punished
by the court against which the contempt was only after charge in writing has been filed, and an
committed at the very moment of the perpetration. opportunity given to the accused to be heard by himself
[Rule 71, Sec. 1] or counsel [Rule 71, Sec. 3]
Punishment
If the contempt is directed against an RTC, a court of equivalent or higher rank:
FINE = not exceeding P2,000; or FINE = not exceeding P30,000; or
IMPRISONMENT = not exceeding 10 days; or both IMPRISONMENT = not exceeding 6 months; or both
If the contempt is directed against a lower court:
FINE = not exceeding P200; or FINE = not exceeding P5,000; or
IMPRISONMENT = not exceeding 1 day; or both IMPRISONMENT = not exceeding 1 month; or both
[Rule 71, Sec. 1] [Rule 71, Sec. 7]
How proceedings commenced
Summarily adjudged by the court against which the (a) By the court motu propio thru an ORDER or any
contempt is directed and punished there and then. formal charge
[Rule 71, Sec. 1] (b) In all other cases, by a VERIFIED PETITION.
(If the contempt charges arose out of or are related to
a 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.)
[Rule 71, Sec. 4]
Remedy
No appeal, but subject to certiorari or May be appealed to the proper court as in
prohibition. [Rule 71, Sec. 2] criminal cases, but execution shall not be
suspended until BOND is filed. [Rule 71, Sec. 11]

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General Matters
DISTINGUISH JURISDICTION OVER
SUBJECT MATTER FROM JURISDICTION
OVER PERSON OF THE ACCUSED
JURISDICTION OVER SUBJECT MATTER
The right to act or the power and authority to
hear and determine a cause [Gomez v.
Montalban (548 SCRA 693)]
General Rule: It is conferred by law and
determined by the allegations of the complaint
[People v. Catalan (2012)]
Principle of adherence of jurisdiction/continuing
jurisdiction- Once a court acquires jurisdiction
over a controversy, it shall continue to exercise
such jurisdiction until the final determination of
the case. [Palana v. People (2007)]
Exception: Where the succeeding statute
expressly provides, or is construed that it is
intended to operate to actions pending before its
enactment [Palana v. People (2007)]
JURISDICTION OVER THE PERSON OF THE ACCUSED
Acquired either by [Antiporda vs Garchitorena
(1999), citing Arula vs Espino (1969)]:
ARREST of accused; or
VOLUNTARY APPEARANCE/SUBMISSION of the
accused to the jurisdiction of the court
Voluntary appearance of the accused is
accomplished by:
By filing pleadings seeking affirmative relief
Exception: Special appearance to challenge
the jurisdiction of the court over the person is
not voluntary submission [Garcia v.
Sandiganbayan (2009)];
Jurisdiction Over the Jurisdiction Over The
Subject Matter Person of the Accused
Conferred by law; May be acquired by
Can never be acquiredconsent of the accused or
solely by consent of the by waiver of objections.
accused.
Right to object is never Right to object may be
waived waived
The absence of courts Failure of the accused to
jurisdiction over themake objection in time
subject matter may bewould constitute a waiver
raised at any stage of the of the objection.
proceeding.
REQUISITES FOR EXERCISE OF CRIMINAL
JURISDICTION
SUBJECT MATTER JURISDICTION - WON the
court has jurisdiction over the offense by
virtue of the imposable penalty and its nature;
Jurisdiction over the PERSON of the accused;
TERRITORIAL JURISDICTION - WON the
action has been filed within the
TERRITORIAL JURIDICTION of the court:
Refers to VENUE (see below) or the place
where the case is to be tried. The action should
be instituted and tried in the municipality or
territory where offense has been committed or
where any one of the essential ingredients
thereof took place. [Sec 15(a), Rule 110]
For transitory/ continuing offenses, the courts of
the territories where the essential ingredients of
the crime took place have concurrent jurisdiction.
The first court taking cognizance of the case will
exclude the others [People vs Grospe (1988)].

By giving Bail

JURISDICTION OF CRIMINAL COURTS

CRIMINAL JURISDICTION OF COURTS

MTC/MeTC/MCTC RTC SANDIGANBAYAN

(1) Exclusive original jurisdiction over (1) Exclusive original jurisdiction in (1) Exclusive original jurisdiction
all violations of city/municipal all criminal cases not within the in those cases expressly
ordinances committed within their exclusive jurisdiction of any enumerated in PD 1606, as
respective territorial jurisdiction. court/tribunal/body. [Sec. 20, BP amended by RA 8249:
[Sec. 32(1), BP 129] 129] violations of RA 3019, RA 1379,
(2) Exclusive original jurisdiction over (2) Exclusive appellate jurisdiction and Chapter II, Section 2, Title
all offenses punishable with over all cases decided by the VII, Book II of the RPC

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MTC/MeTC/MCTC
imprisonment not exceeding 6
years irrespective of the amount of
fine, and regardless of other
imposable accessory or other
penalties, including the civil
liability arising from such offenses
or predicated thereon, irrespective
of kind, nature, value, or amount
thereof. [Sec. 32(2), BP 129]
(3) Exclusive original jurisdiction over
offenses involving damage to
property through criminal
negligence they shall have
exclusive original jurisdiction
thereof. [Sec. 32(2), BP 129; RA
7691]
Exception (for Nos. 1-3): Cases falling
within the exclusive jurisdiction of the
RTC and of the Sandiganbayan
(4) Cases classified under the Revised
Rules on Summary Procedure: [SC
Resolution, October 15, 1991]
(a) Violations of traffic laws/rules/
regulations;
(b) Violations of rental law;
(c) Cases where the penalty
prescribed by law for the
offense charged is
imprisonment not exceeding 6
months, or a fine not exceeding
P1,000, or both, irrespective of
other imposable penalties,
accessory or otherwise, or of
the civil liability arising
therefrom
(d) Offenses involving damage to
property through criminal
negligence(imposable fine
does not exceed P10,000)
(5) Violations of BP 22 [A.M. No. 00-
11-01-SC (2003)]
(6) Special jurisdictionto decide on
applications for bail in criminal
cases in the absence of all RTC
judges in a province or city [Sec.
35, BP 129]
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
RTC SANDIGANBAYAN
MTC within its territorial Officials enumerated are the ff:
jurisdiction [Sec. 22, BP 129] (a) Officials of the executive
(3) Criminal cases where one or branch occupying the
more of the accused is below 18 positions of regional director
years of age but not less than 15 and higher, otherwise
years, or where one or more of classified as Grade '27' and
the victims is a minor at the time higher, of the Compensation
of the commission of the offense and Position Classification
[RA 9344] Act of 1989 (RA 6758)
(4) Cases against minors cognizable (b) Members of Congress and
under the Dangerous Drugs Act, officials thereof classified as
as amended [RA 8369, Family Grade'27'and up under the
Courts Act of 1997] Compensation and Position
(5) Violations of Republic Act No. Classification Act of 1989
7610, the Child Abuse Act. (c) Members of the judiciary
(6) Cases of domestic violence without prejudice to the
against women and children. If provisions of the Constitution
an act committed against women (d) Chairmen and members of
and children likewise constitute a Constitutional Commissions,
criminal offense, the accused or without prejudice to the
batterer shall be subject to provisions of the Constitution
criminal proceedings and the (e) All other national and local
corresponding penalties. [RA officials classified as Grade
8369, Family Courts Act of 1997] 27
(7) Violations of intellectual
property rights [A.M. No. 03-03- (2) Other offenses or felonies
03-SC (2003); RA 8293] whether simple or complexed
(8) Money Laundering Cases [RA with other crimes committed
9160] by public officials and
Exception: those committed by employees in relation to their
public officers and private office
persons who are in conspiracy
with such public officers shall be Requisites:
under the jurisdiction of the (a) Accused is any one of the
Sandiganbayan public officials enumerated
in subsection (a) of Sec. 4 of
RA 8249, grade 27 or higher
(b) Accused commits any other
offense or felony, than those
specified in subsec. (a),
whether simple or
complexed with other
crimes
(c) The offender commits such
other offense or felony in
relation to his office
(3) Cases filed in pursuant to and
in connection with EO 1, 2, 14,
14-A, issued in 1986
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UP COLLEGE OF LAW
MILITARY COURTS
General rule: Ordinary courts will have jurisdiction
over cases involving members of the armed forces,
and other persons subject to military law,
regardless of who the co-accused or victims are.
Exception: When the offense is service-oriented, then
it will be tried by the court martial. PROVIDED: the
President may, in the interest of justice, order/direct at
any time before arraignment that any such
crimes/offenses be tried by the proper civil courts
Prosecution of Offenses
CRIMINAL ACTIONS, HOW INSTITUTED (BAR
1999)
IN GENERAL
A criminal action is commenced by the filing of a
complaint or information. The complaint may be
filed either with the MTC or with a public
prosecutor for purposes of conducting a
preliminary investigation.
INSTITUTION AND COMMENCEMENT OF ACTIONS
The criminal action is commenced when the
complaint or information is filed in court
For offenses which require a preliminary
investigation (Section 1 of Rule 112: where the
penalty prescribed by law is at least four years,
two months and one day), the criminal action is
instituted by filing the complaint with the
appropriate officer for PI. [Sec. 1(a), Rule 110]
For all other offenses, or in offenses cognizable by
inferior courts (Municipal Trial Courts or Municipal
Circuit Trial Courts), the complaint or information is
filed directly with said courts or the complaint is
filed with the fiscal. [Sec. 1(b), Rule 110]
In Metropolitan Manila and other chartered
cities, the complaint shall be filed with the office
of the public prosecutor unless otherwise
provided in their charters. [Sec. 1(b), Rule 110]
EFFECT OF THE INSTITUTION OF CRIMINAL ACTION
ON THE PRESCRIPTIVE PERIOD (BAR 1993)
General Rule: The institution of a criminal action shall
interrupt the running of the period of prescription of
the offense charged unless otherwise provided in
special laws. [Sec. 1, Rule 110]
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
In People v. Pangilinan, G.R No. 152662, June
13, 2012, the Court made a pronouncement to
the effect that there is no more distinction
between cases under the RPC and those
covered by special laws with respect to the
interruption of the period of prescription.
WHO MAY FILE THEM, CRIMES THAT CANNOT BE
PROSECUTED DE OFFICIO (BAR 1990, 2000)
CASES THAT CANNOT BE PROSECUTED DE OFICIO
Adultery/concubinage [Sec. 5, Rule 110]
Seduction, abduction, acts of lasciviousness
Defamation which consists of imputation of any
of the foregoing offenses.
WHO MAY FILE A COMPLAINT?
Adultery and concubinage The offended spouse.
Both guilty parties should be included if both are alive.
[Sec 5, Rule 110] However, prosecution will not
prosper if the offended party consented to the offense.
Seduction, abduction and acts of lasciviousness
The offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been
expressly pardoned by them. [Sec 5, Rule 110]
General rule: If the offended party is a
MINOR, he or she has the right to
initiate the prosecution of such offenses
independently of his/her parents,
grandparents, or guardians
Exceptions: If the minor is:
Incompetent, or
Incapable of doing so
Oral defamation can only be brought upon
instance and upon complaint of the offended party.
EFFECT OF:
DEATH OF OFFENDED PARTY
Death after filing the complaint would not
deprive the court of the jurisdiction.
The State shall initiate the action on behalf of the
offended party in case of his death/incapacity AND
he has no known parents/grandparents/ guardians.
In adultery/concubinage, death does not
extinguish the criminal liability of accused.
DESISTANCE BY OFFENDED PARTY
It does not bar the People of the Philippines from
prosecuting the criminal action, but it operates as a
waiver of the right to pursue civil indemnity.
PARDON BY OFFENDED PARTY
In rape, seduction, abduction and acts of
lasciviousness of a minor The pardon will be
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UP COLLEGE OF LAW
effective if given by both parents and the
offended party.
(b) In seduction, abduction and acts of lasciviousness
Express pardon by the offended party,
parents, grandparents or guardian will
prevent prosecution. [Rule 110, Sec. 5]
The parents/grandparents/guardian of the
offended minor (in that order) cannot extend
a valid pardon without conformity of the
offended party, even if the latter is a minor.
[US v. Luna (1902)]
If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.
General rule: Pardon must be made before the
filing of the criminal complaint in court.
Exception: In rape, where marriage between the
offender and the offended party would be
effective as pardon even when the offender has
already commenced serving his sentence.
If there is more than one accused, the pardon
must be extended to all offenders.
Pardon or desistance extinguishes civil liability.
Pardon or express condonation has the effect of
waiving the civil liability with regard to the
interest of the injured party. Liability arising from
an offense is extinguished in the same manner
as other obligations.
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
must be extended to both sufficient even if granted
offenders only to the offending
spouse
CRIMINAL ACTIONS, WHEN ENJOINED
General rule: The prosecution of a criminal case
may not be enjoined by prohibition/injunction.
[Domingo v. Sandiganbayan, 1986]
Exceptions (Bar 1999):
To afford protection to the constitutional rights of
the accused;
Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
There is a prejudicial question which is sub judice;
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
The acts of the officer are without or in excess of
authority;
The prosecutions is under an invalid
law/ordinance/regulation;
When double jeopardy is clearly apparent;
The court has no jurisdiction over the offense;
A case of persecution rather than prosecution;
The charges are manifestly false and motivated
by the lust for vengeance;
There is clearly no prima facie case against the
accused and MTQ on that ground has been
denied; [Samson vs Guingona (2000)]
Preliminary injunction has been issued by the SC to
prevent the threatened unlawful arrest of petitioners.
CONTROL OF PROSECUTION
General Rule: All criminal actions commenced
by a complaint or information shall be
prosecuted under the DIRECTION and
CONTROL of the prosecutor. [Sec. 5, Rule 110]
Exception: In case of heavy work schedule of
the public prosecutor OR in the event of lack of
public prosecutors,
The private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or
the Regional State Prosecutor to prosecute the
case SUBJECT to the approval of the court.
However, the criminal action is still prosecuted
under the direction and control of the public
prosecutor. [Riano]
EXTENT OF THE PROSECUTORS CONTROL
PRIOR TO THE FILING OF THE CASE
Matters within the control and supervision of the
prosecutor:
What case to file
Whom to prosecute
Manner of prosecution
Right to withdraw information before
arraignment even without notice and hearing
AFTER A CASE IS FILED
It is the prosecutors duty to proceed with the
presentation of his evidence.
The prosecutor has no power to dismiss the
action without the courts consent.
LIMITATIONS OF CONTROL BY THE COURT
Prosecution is entitled to notice of hearing
Court must await for petition for review
(maximum of 60 days)
Prosecutions stand to maintain prosecution
should be respected by the court
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The court must make its own independent
assessment of evidence in granting or
dismissing motion to dismiss. Otherwise, the
judgment is void.
EFFECTS OF THE LACK OF INTERVENTION BY THE
FISCAL IN THE TRIAL
Although the private prosecutor had previously
been authorized by the special counsel to present
the evidence for the prosecution, in view of the
absence of the City Fiscal at the hearing, it cannot
be said that the prosecution of the case was under
the control of the City Fiscal. It follows that the
evidence presented by the private prosecutor at
said hearing could not be considered as evidence
for the plaintiff [People v. Beriales, (1976)].
SUFFICIENCY OF COMPLAINT OR INFORMATION
COMPLAINT DEFINED
A sworn written statement charging a person with an
offense, subscribed by the offended party, any peace
officer or other public officer charged with the
enforcement of the law violated. [Sec. 3, Rule 110]
INFORMATION DEFINED
An accusation in writing, charging a person with an
offense, subscribed by the prosecutor and filed with
the court. [Sec. 4, Rule 110; People vs Cinco (2009)]
FORM & SUBSTANCE
Sufficiency of complaint or information
A complaint or information is sufficient if it states:
the name of the accused;
the designation of the offense given by the
statute;
the acts or omissions complained of as
constituting the offense;
the name of the offended party;
the approximate date of the commission of the
offense; and
the place where the offense was committed.
[Sec. 6, Rule 110]
Test for sufficiency of the complaint or information
is whether the crime is described in intelligible
terms with such particularity as to apprise the
accused with reasonable certainty of the offense
charged. [Lazarte, Jr. vs Sandiganbayan (2009)]
An accused is deemed to have waived his right to
assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
participated in the trial. [Frias v. People (2007)]
Consequently, objections as to form cannot be made
for the first time on appeal. The accused should have
moved for a bill of particulars or for quashal of
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
information before arraignment, otherwise he is
deemed to have waived his objections to such a
defect. [People v. Teodoro (2009)]
DESIGNATION OF OFFENSE
Aver the acts and omissions constituting the offense.
Specify the qualifying and aggravating
circumstances [Sec. 8 and 9,Rule 110)](Bar 2001)
This is a procedural requirement to safeguard
the right of the accused to be informed of the
nature and cause of the accusation against him.
Specific acts of accused do not have to be described
in detail in the information, as it is enough that the
offense be described with sufficient particularity to
make sure the accused fully understands what he is
being charged with. [Guy v. People (2009)]
CAUSE OF THE ACCUSATION
WHAT TO ALLEGE
Where the law prescribes exceptions
General rule: Where the law alleged to have been
violated prohibits generally acts therein defined AND
is intended to apply to all persons indiscriminately,
BUT prescribes certain limitations/exceptions from its
violation, the indictment/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 defense
which the accused has to prove.
Exception: Where the statute alleged to have
been violated applies only to specific classes of
persons and special conditions and the
exemptions from its violation are so 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.
Qualifying and aggravating circumstances must be
alleged; otherwise, they are not to be considered
even if proven during the trial. [Sec. 8, Rule 110]
Where exceptions form as ingredients of offense
If the exception is needed for defining the
offense, then the information should negate the
exception. [US vs Chan Toco (1908)]
Where complex crime is charged
Where what is alleged in the information is a complex
crime and the evidence fails to support the charge as
to one of the component offenses, the
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UP COLLEGE OF LAW CRIMINAL PROCEDURE
defendant can only be convicted of the offense
proven.
DUPLICITY OF THE OFFENSE; EXCEPTION
(BAR 2005)
DUPLICITY OF OFFENSE in an information or
complaint means the joinder of two or more
separate and distinct offenses in one and the same
information or complaint.
General rule: The information must charge only
one offense.[Sec. 13, Rule 110]
Objection to a complaint or information which
charges more than one offense must be timely
interposed before trial. [Sec 3, Rule 120] Failure to
do so constitutes a waiver, [People v Tabio (2008)]
and the court may convict him of as many offenses
as are charged and proved, and impose on him the
penalty for each offense. [Sec 3, Rule 120]
Exception: When the law prescribes a single
punishment for various offenses
Remedy: The filing of a motion to quash is the
remedy in case of duplicity of offense in an
information
Waiver: Should there be duplicity of offense in the
information, the accused must move for the quashal
of the same before arraignment.Otherwise, he is
deemed to have waived the objection
SEVERAL MODES OF COMMITTING OFFENSE NOT
DUPLICITOUS
General rule: In case of crimes susceptible of
being committed in various modes, the
allegations in the information of the various ways
of committing the offense would be regarded as
a description of only one offense and information
is not rendered defective.
Exceptions:
Complex crimes
Special complex crimes
Continuous crimes
Crimes susceptible of being committed in
various modes
Crimes which another offense is an ingredient
[People v. Camerino (1960)]
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BAR OPERATIONS COMMISSION
AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION [SEC. 14,
RULE 110] (BAR 2001, 2002)
AMENDMENTS IN FORM AND SUBSTANCE BEFORE PLEA
General rule: It must be made BEFORE the
accused enters his plea.
Exception: If the amendment downgrades the nature
of the offense charged in, or excludes any accused
from, the complaint/information, it can be made only
upon motion of the prosecutor, with notice to the
offended party and with leave of court. The court is
mandated to state its reasons in resolving the motion
of the prosecutor and to furnish all parties, especially
the offended party, of copies of its order.
AMENDMENTS MADE AFTER PLEA AND DURING TRIAL
Formal can only be made under two conditions
Leave of court must be secured
It does not cause prejudice to the rights of the
accused. [Sec 14, Rule 110] The test as to
WON a defendant is prejudiced by the
amendment of information is:
WON a defense under the information as it
originally stood would be available after
the amendment is made, and
WON any evidence defendant might have
would be equally applicable to the
information in the one form as in the other.
[People vs Casey (1981)]
An amendment is only in form
Substantial proscribed. [People vs. Zulueta
(1951)] Substantial matter in a complaint is the
recital of facts constituting the offense charged
and determinative of the jurisdiction of the court.
All other matters are merely of form. [Almeda vs
Villaluz (1975)]
Exception: if it is beneficial to the accused.
[Ricarzevs CA (2007)]
Substitution a complaint or information may
be substituted if it appears at any time before
judgment that a mistake has been made in
charging the proper offense, the court shall
dismiss the original complaint or information
upon the filing of a new one charging the proper
offense, provided the accused would not be
placed in double jeopardy. [Sec 14, Rule 110]
Subject to the Sec 19, Rule 119, when it becomes
manifest at any time before judgment that a mistake
has been made in charging the proper offense and
the accused cannot be convicted of the offense
charged or any other offense necessarily included
UP COLLEGE OF LAW CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION

therein, the accused shall not be discharged if General Rule: Principle of Territoriality
there appears good cause to detain him. The Subject to existing laws, in all criminal prosecutions,
court shall commit the accused to answer the the action must be instituted and tried in the courts of
proper offense and dismiss the original case the municipality or territory where the offense was
upon the filing of the proper information. committed or any of its essential ingredients occurred
(Sec. 15(a), Rule 110).
Limitations:
No judgment has yet been rendered Exceptions:
The accused cannot be convicted of the offense Felony Venue
charged or of any other offense necessarily
included therein Felonies under Art. 2, RPC Cognizable by the proper
The accused would not be placed in double court where criminal
jeopardy action was first filed
Committed on a railroad May be instituted and
Distinction between substitution and
train, aircraft, or any other tried in the court of any
amendment (Bar 1994)
public or private vehicle in municipality or territory
Amendment Substitution the court of its trip where such train, aircraft,
Formal or SubstantialSubstantial change form or other vehicle passed
during such trip, including
changes original
place of departure and
Can be effected withoutMust be with leave of arrival
leave of court court
Committed on board a May be instated and tried
Only as to form, there is Another PI is entailed and vessel in the course of its in the proper court of the
no need for another PI accused has to plead voyage first port of entry or of any
and retaking of plea anew municipality or territory
Amended informationInvolves a different through which vessel
refers to the same offense offense which does not passed, subject to the
charged in the original include those provided in generally accepted
information or to anthe original charge; principles of international
offense which is included cannot invoke double law
in the original charge; can jeopardy Piracy Venue of piracy has not
invoke double jeopardy territorial limits. It may be
tried anywhere. [People v.
VENUE OF CRIMINAL ACTIONS Place Lol-lo GR No. 17958,
where action is to be instituted February 27, 1922]
Criminal actions shall be instituted and tried in Libel May be instituted at the
the court of the municipality or territory
where the offense was committed; or
election of the offended
part or suing party in the
where any of its essential ingredients occurred.
province or city, subject to
[Sec. 15(a), Rule 110]
Art. 360, RPC
Venue is jurisdictional In cases filed under BP 22 Action shall be filed in the
The court has no jurisdiction to try an offense place where the check
committed outside its territorial jurisdiction. It was dishonored or issued.
cannot be waived, or changed by agreement of In case of a cross-check, in
the parties, or by the consent of the defendant. the place of the
depositary or collecting
How venue or jurisdiction determined bank
Venue in criminal cases is jurisdictional. In exceptional To ensure a fair trial and
One cannot be held to answer for any crime circumstances impartial inquiry, the SC
committed by him except in the jurisdiction where it shall have the power to
was committed or where an essential ingredient order a change of venue
thereof took place. The place where the accused was or place of trial to avoid
arrested is of no moment. [People vs Enriquez] miscarriage of justice
(Sec. 5(4), Art. VII, 1987

PAGE 159
UP COLLEGE OF LAW CRIMINAL PROCEDURE
Felony Venue
Constitution)
INTERVENTION OF OFFENDED PARTY [SEC.
16, RULE 110]
General rule: An offended party has the right to
intervene in the prosecution of a crime
Note: This is still subject to the control of the
prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]
Exceptions:
Where, from the nature of the crime and the law
defining and punishing it, no civil liability
arises in favor of a private offended party.
Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has
waived the same or has expressly reserved
his right to institute a separate civil action or
he has already instituted such action.
Offended party has already instituted action for
civil claims
Prosecution of Civil Action
RULE ON IMPLIED INSTITUTION OF CIVIL
ACTION WITH CRIMINAL ACTION
HOW INSTITUTED
General rule: The civil action for the recovery of civil
liability arising from the offense charged is deemed
instituted with the criminal action. [Sec. 1, Rule 111]
Exception [Sec. 1, Rule 111]: If the offended party:
Waives the civil action;
Institutes the civil action prior to the criminal
action; or
Reserves the right to institute it separately
WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY
Under the Rules, only civil liability ARISING FROM
the crime charged is deemed instituted, hence, the
civil actions under the Civil Code, specifically Arts.
32, 33, 34, and 2176, remain separate, distinct,
and independent of any criminal prosecution
although based on the same act. [Philippine Rabbit
Bus Lines Inc. v. People (2004)]
When reservation is made: The reservation of the
right to institute separately the civil action shall be
PAGE 160
BAR OPERATIONS COMMISSION
made before the prosecution starts presenting
its evidence and under circumstances affording
the offended party a reasonable opportunity to
make such reservation [Sec. 1, Rule 111]
SEPARATE ACTION FILED BY THE ACCUSED
No counterclaim, cross-claim or 3rd-party
complaint may be filed by the accused in the
criminal case, but any cause of action which could
have been the subject thereof may be litigated in a
separate civil action. [Sec. 1, Rule 111]
WHEN SEPARATE CIVIL ACTION IS SUSPENDED
After the criminal action has been commenced,
the separate civil action arising therefrom cannot
be instituted until final judgment has been
entered in the criminal action. [Sec 2, Rule 111]
The civil action, which should be suspended
after the institution of the criminal action, is that
arising from delict or crime.
Civil actions under Arts. 32-34 and 2176 of the
Civil Code are exempted from the rule that after
a criminal action has been commenced, the civil
action which has been reserved cannot be
instituted until final judgment has been rendered
in the criminal action. [Sec. 3, Rule 111]
EFFECT OF THE DEATH OF ACCUSED OR
CONVICT ON CIVIL ACTION [SEC. 4, RULE 111]
Criminal liability is extinguished [Art. 89, RPC]
As regards civil liability:
Death is before arraignment: Dismissal of case
without prejudice to filing of civil action against
estate of the deceased
Death is after arraignment and during pendency
of criminal action: Extinguishes civil liability
arising from the delict
Death during pendency of appeal: Criminal
liability and civil liability based thereon [People
vs Ayochok (2010)]
Exception: Independent civil actions instituted under
Arts. 32, 33, 34 and 2176 of the Civil Code, or those
instituted to enforce liability arising from other sources
of obligation may be continued against the estate or
legal representative of the accused after proper
substitution or against his estate.
UP COLLEGE OF LAW
As regards the parties in the civil action:
The heirs of the accused may be substituted without
requiring the appointment of an
executor/administrator.
Court may appoint guardian ad litem for the minors.
Court shall order legal representative/s to appear and
be substituted within 30 days from notice.
PREJUDICIAL QUESTION (1999 BAR) [SECS.
6 AND 7, RULE 111]
ELEMENTS OF PREJUDICIAL QUESTION
Prejudicial Question: is that which arises in a
case the resolution of which is a logical
antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal.
When a civil action may be considered prejudicial:
the civil case involves facts intimately related to
those upon which the criminal prosecution
would be based;
in the resolution of the issue/s raised in the civil
action, the guilt/innocence of the accused
would necessarily be determined;
jurisdiction to try the action is lodged in another
tribunal [Basis of a) to c): Magestrado v.
People (2009)]
Action is instituted prior to the institution of the
criminal action [Pimentel v. Pimentel (2010)]
Rationale: to avoid two conflicting decisions in
the civil case and in the criminal case. [Sy
Thiong Siou vs Sy Chim (2009)]
EFFECT (BAR 1995, 1999, 2010)
General rule: Where both a civil and a criminal case
arising from the same facts are filed in court, the
criminal case takes precedence [Sec 2, Rule 111]
Exception: If there exists a prejudicial question
which should be resolved first before an action
could be taken in the criminal case.
WHERE TO FILE PETITION FOR SUSPENSION IS FILED [SEC.
6, RULE 111]
Office of the prosecutor (in the PI
stage); Court conducting the PI; or
Court where criminal action has been filed for
trial, at any time before the prosecution rests.
Note: The Rule precludes a motu proprio
suspension of the civil action. [Riano]
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION
FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN
CRIMINAL ACTION
Filing fees apply when damages are being
claimed by the offended party.
General Rule: The actual damages claimed or
recovered by the offended party are not included in
the computation of the filing fees. [Sec. 1, Rule 111]
When the amount of damages, other than
actual, is specified in the complaint or
information filed in court, then the corresponding
filing fees shall be paid by the offended party
upon the filing thereof in court for trial;
In any other casei.e., when the amount of
damages is not so alleged in the complaint or
information filed in court, the corresponding filing
fees need not be paid and shall simply constitute a
first lien on the judgment, except on an award for
actual damages. [General vs Claravall (1991)]
Exceptions: In criminal actions for violation of
BP22, the amount of the check involved shall be
considered as the actual damages for which no
separate civil action is allowed. In estafa cases,
the filing fees shall be paid based on the amount
involved. [A.M. No. 04-2-04]
When paid: Upon the filing of the criminal action
Preliminary Investigation
NATURE OF RIGHT
PRELIMINARY INVESTIGATION, DEFINED
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, Rule 112]
NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION
It is a statutory right in those instances where it
is required, and to withhold it would violate the
constitutional right to due process. [People vs.
Oandasa (1968)]
Not a mere formal or technical right but a
substantial right.
PAGE 161
UP COLLEGE OF LAW CRIMINAL PROCEDURE
RIGHT TO PRELIMINARY INVESTIGATION
The right to preliminary investigation is a
personal right which the accused may waive
either expressly or by implication.
When the accused waives his right to
preliminary investigation, the fiscal may forthwith
file the corresponding information with the
proper court. [People vs Perez (1960)]
An application for or admission to bail shall not
bar the accused from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him provided
that he raises the challenge before entering his
plea [Sec. 26, Rule 114].
INSTANCES WHEREIN THE RIGHT TO PI IS DEEMED
WAIVED:
Express waiver or by silence [Herrera, Vol. IV, p.
278, 2007 ed.]
Failure to invoke it during arraignment [People v.
De Asis, GR No. 105581, Dec. 7, 1993]; and
Consenting to be arraigned and entering a plea of not
guilty without invoking the right to PI [People v.
Bulosan, GR No. 58404, April 15, 1988]
The waiver, whether express or implied, must be
in a clear and unequivocal manner [Herrera, Vol.
IV, p.278, 2007 ed.]
The right to PI cannot be raised for the first time
on appeal [Pilapil v. Sandiganbayan, GR No.
101978, April 7, 1993]
INSTANCES WHEREIN THE RIGHT TO PI IS NOT
DEEMED WAIVED:
Failure to appear before the prosecutor during the
clarificatory hearing or when summoned,w hen the
right was invoked at the start of the proceeding
[Larranaga v. CA, GR No. 130644, March 13,
1998]; or
When the accused filed an application for bail and
was arraigned over his objection and the accused
demand that preliminary investigation be conducted
[Go v. CA, GR No. 101837, Feb. 11, 1992]
PURPOSES OF PRELIMINARY INVESTIGATION
To determine whether or not a crime has been
committed and whether or not there is probable
cause to believe that the accused is guilty. [Raro
vs. Sandiganbayan (2000)]
To secure the innocent against hasty, malicious and
oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the
trouble, expense, anxiety of a public trial, and also
PAGE 162
BAR OPERATIONS COMMISSION
protect the state from useless and expensive
trials. [Tandoc vs. Resultan (1989)]
SCOPE OF PI
A PI is merely inquisitorial, and it is often the
only means of discovering the persons who may
reasonably be charged with a crime, to enable
the prosecutor to prepare his complaint or
information. It is not a trial of the case on the
merits and does not place the persons against
whom it is taken in jeopardy.
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE
Probable cause
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
Generally [Rule 112, Sec. 2 as amended by
A.M. No. 05-8-26-SC]
Provincial/city prosecutors and their assistants;
National and regional state prosecutors;
Other officers as may be authorized by law.
The prosecutor
If the determination of probable cause is for
purposes of indictment; such finding will not be
disturbed by the court unless there is finding of
grave abuse of discretion
The Court
If the determination of probable cause is for
purposes of issuance of warrant of arrest
COMELEC, when vested
COMELEC may conduct investigation as
regards election offenses. [Sec. 2(6), Art. IX-C,
Consti; Sec. 265, Omnibus Election Code]
Ombudsman
The Ombudsman and his Deputies, as protectors
of the people, shall act promptly on complaints filed
in any form or manner against public officials or
employees of the Government, or any subdivision,
agency or instrumentality thereof, including
GOCCs and shall, in appropriate cases, notify the
complainants of the action taken and the result
thereof. [Sec. 12, Art. XI, Constitution]
The Ombudsman is authorized to conduct
preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction of
 UP COLLEGE OF LAW
the Sandiganbayan, but also those within the
jurisdiction of regular courts as well.
Note: RTC judges have NO power to conduct PI; and
MTC judges cannot conduct PI anymore after A.M.
No. 05-8-26-SC eliminated judges of the MTC and
Filing of the complaint [Sec. 3(a), Rule 112]
(1) Stating the respondents name and address
Include the affidavits of complainant and the
witnesses, and other documents to establish
probable cause, which must be subscribed and
sworn to before a prosecutor or government official
authorized to administer oath or notary public
In such number of copies as there are respondents,
plus 2 copies for the official file
Action of the investigating officer [Sec. 3(b), Rule 112]
Within 10 days after the filing of the complaint, the
investigating officer will either:
Dismiss, if he finds no ground to continue; or
Issue a subpoena to the respondent, attaching the
complaint and other documents.If subpoena is not
possible, the investigating officer shall decide based
on what complainant presented.
Respondent has the right to examine the evidence
submitted by complainant, and copy evidence at his
expense.
Defendants counter-affidavit
Must be made within 10 days from receipt of complaint,
and must comply with the same requirements as a
complaint. [Sec. 3(c), Rule 112]
If not made within 10 days, the investigating officer shall
resolve the complaint based on the evidence presented
by the complainant [Sec. 3(d), Rule 112]
Clarificatory Hearing [Sec. 3(e), Rule 112]
The investigator must conduct a hearing within 10 days
from receipt of the counter-affidavit. The hearing must be
finished in 5 days.
Hearing is conducted only if there are such facts and
issues to be clarified from a party or a witness.
Parties may be present evidence, but they have no right
to examine or cross-examine. Questions of parties shall
be submitted to the investigating officer.
Within 10 day after the investigation, the officer shall
determine WON there is sufficient ground to hold
respondent for trial.
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
MCTC from those authorized to conduct a PI
effective October 3, 2005.
PROCEDURE FOR PRELIMINARY INVESTIGATION [Sec.
3, Rule 112 of Rules of Criminal Procedure]
RESOLUTION OF INVESTIGATING PROSECUTOR
[SEC. 4, RULE 112]
If he finds probable cause to hold respondent for
trial, he shall prepare a resolution and certify
under oath in the information that:
He or an authorized officer has personally
examined the complainant and his
witnesses;
That there is reasonable ground to believe that
a crime has been committed and that the
accused is probably guilty thereof;
That the accused was informed of the
complaint and evidences against him;
That he was given opportunity to submit
controverting evidence
If he finds no probable cause, he shall
recommend the dismissal of the complaint
REVIEW [SEC. 4, RULE 112]
Within 5 days from resolution, the investigating
officer will forward the case to the prosecutor or
to the Ombudsman in cases cognizable by
the Sandiganbayan in the exercise
of its original jurisdiction.
Within 10 days from receipt of the resolution,
the prosecutor/Ombudsman will act on the case.
No complaint/information may be filed or
dismissed by an investigating prosecutor without
the prior written authority or approval of the
prosecutor or Ombudsman.
In case the investigation officer recommends the
dismissal of the complaint but the
prosecutor/Ombudsman disagrees, the latter may file
the information himself or any deputy or order any
prosecutor to do so without conducting a new PI.
PAGE 163
UP COLLEGE OF LAW CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION

Follow the procedure outlined in Sec. 3(a), Rule 112

Note: The DOJ Secretary may file the information
without conducting another PI or dismiss the
information filed by the prosecutor. The DOJ
Secretary may review resolutions, via petition for
review to the Secretary of Justice, of his
subordinates in criminal cases despite the
information being filed in court (Community Rural
Bank of Guimba v. Talavera, AM No. RTJ-05-1909,
April 6, 2005) See also DOJ Circular No. 70
REMEDY OF AN AGGRIEVED PARTY AGAINST THE
RESOLUTION OF THE DOJ SECRETARY
Such resolution may be nullified in a petition for
certiorari under Rule 65 on grounds of grave
abuse of discretion resulting to lack or excess of
jurisdiction [Ching v. Sec. of Justice, 2006]
above.
Within 10 days after the filing of the
complaint/information, if the judge finds no PC after
personally evaluating the evidence or after personally
examining in writing and under oath the complainant
and his witnesses in the form of searching questions
and answers, he shall dismiss the same.
The judge may require submission of additional
evidence within 10 days from notice, to determine
the existence of PC.

The DOJ resolution is appealable administratively If the judge still finds no If the judge finds PC, he
before the Office of the President and the decision of PC despite the additional shall issue a warrant of
the latter may be appealed before the CA pursuant to evidence, he shall dismiss arrest or a commitment
Rule 43 [De Ocampo v. Sec, of Justice, 2006] the case within 10 days order (if the accused had
from its submission or already been arrested)
WHEN WARRANT OF ARREST MAY ISSUE expiration of said period. and hold him for trial.
If the judge finds probable cause, he shall issue
a warrant of arrest, or a commitment order if the
accused has already been arrested, and hold
him for trial.
If the judge is satisfied
The PI conducted by the prosecutor is that there is no need to
EXECUTIVE in nature, it is for the purpose of place the accused
determining whether or not there exists sufficient under custody, he may
ground for the filing of information; issue summons instead.

The PI conducted by the judge which is properly

called PRELIMINARY EXAMINATION is for the
determination of probable cause for the issuance
of warrant of arrest [P/Supt. Cruz v. Judge Areola,
AM No. RTJ-01-1642, March 6, 2002]
CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
NOR COVERED BY RULE ON SUMMARY PROCEDURE
[SEC. 8, RULE 112]
Cases punishable by imprisonment of less than
4 years, 2 months and 1 day, filed with the
prosecutor or MTC/MCTC
REMEDIES OF ACCUSED IF THERE WAS NO
PRELIMINARY INVESTIGATION
EFFECT OF DENIAL OF RIGHT TO PRELIMINARY
INVESTIGATION
The absence of PI:
does not impair the validity of the information or
otherwise render it defective;
neither does it affect the jurisdiction of the court;
nor constitute a ground for quashing the
information.
The trial court, instead of dismissing the
information, should hold in abeyance the
proceedings and order the public prosecutor to
conduct a PI. [Villaflor v. Vivar(2001)]

PAGE 164
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IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED
Injunction and writs of restraint
General rule: The power of the Fiscal to
investigate crimes committed within his
jurisdiction will, ordinarily, not be restrained.
Exception: Extreme cases may exist where relief in
equity may be availed of to stop a purported
enforcement of a criminal law where it is necessary
for the orderly administration of justice; (b) to
prevent the use of the strong arm of the law in
an oppressive and vindictive manner; (c) to
avoid multiplicity of actions; (d) to afford
adequate protection to constitutional rights; and
(e) in proper cases, because the statute relied
upon is unconstitutional, or was "held invalid."
[Ladlad v. Velasco (2007)]
INQUEST
DEFINITION
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
PROCEDURE FOR INQUEST PROCEEDINGS
Considered commenced upon receipt by the Inquest
Officer from the law enforcement authorities of the
complaint/referral documents which should include:
affidavit of arrest, investigation report, statement of
the complainant and witnesses, all of which must
be subscribed and sworn to before him
INQUEST
No Accused
Probable wants PI
Cause and is
willing to
waive Art.
125
Dismiss For PI
the case
PAGE 165
BAR OPERATIONS COMMISSION
should remain under custody and correspondingly
be charged in court. (DOJ-NPS Manual)
General rule: PI is required to be conducted
before a complaint/ information is filed for an
offense where the penalty prescribed by law is at
least 4 years, 2 months and 1 day, without
regard to the fine. [Sec. 1, Rule 112]
Exception: When a person is lawfully arrested
without a warrant involving an offense that
requires a PI, a complaint/information may be
filed without conducting the PI if the necessary
inquest is conducted.
However, before the complaint or information is filed,
the person arrested may ask for a PI, but he must
sign a waiver of the provisions of Art. 125, RPC in the
presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be
terminated within 15 days from its inception.
After the filing of the complaint/ information in court
without a PI, the accused may within 5 days from
the time he learns of its filing, ask for a PI with the
same right to adduce evidence in his defense as
provided in Rule 112. [Sec. 6, Rule 112]
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.
It must be terminated within the period
prescribed under the provisions of Article 125 of
the RPC, as amended.
Warrantless There is PC
arrest as not and arrest
valid was valid
Release File
for regular information
PI
UP COLLEGE OF LAW
Arrest
DEFINITION
The taking of a person into custody in order that
he may be bound to answer for the commission
of an offense. (Rule 113, Sec. 1)
IMMUNITY FROM ARREST
Parliamentary Immunity
Senators and Members of the House of
Representatives, while Congress is in session and
for offenses punishable by not more than 6 years
imprisonment. (Art. VI, Sec. 11, 1987 Constitution)
Diplomatic Immunity
Ambassadors and ministers of foreign countries
and their duly registered domestics subject to
the principle of reciprocity (RA 75)
ARREST, HOW MADE
MODES OF EFFECTING ARREST
By an actual restraint of a person to be arrested.
By his submission to the custody of the person
making the arrest. (Rule 113, Sec. 2, Par. 1)
It is enough that there be an intent on the part of
one of the parties to arrest the other and an
intent on the part of the other to submit, under
the belief and impression that submission is
necessary. [Sanchez v. Demetriou (1993)]
NO UNNECESSARY VIOLENCE
No violence or unnecessary force shall be used
in making an arrest. (Rule 113, Sec. 2, Par. 2)
Application of actual force, manual touching of
the body, physical restraint or a formal
declaration of arrest is not required.
TIME TO MAKE ARREST
An arrest may be made on any day and at any
time of the day or night. (Rule 113, Sec. 6)
ARREST WITHOUT WARRANT, WHEN
LAWFUL (1997, 2000, 2003, 2004 BAR)
General rule: No peace officer or person has the
power or authority to arrest anyone without a
warrant except in those cases expressly
authorized by law. [Umil v. Ramos (1991)]
Exceptions (Rule 113, Sec. 5)
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
In flagrante delicto
When the person to be arrested:
has committed,
is actually committing, or
is attempting to commit
an offense in the presence of the peace officer
OR private person who arrested him. (Rule
113, Sec. 5(a))
Requisites:
The person to be arrested must execute an
OVERT act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and
Such overt act is done in the presence or within the
view of the arresting officer [ Zalameda v.
People (2009); People v. Laguio (2007)]
In his presence means: [People v. Evaristo
(1992)] He sees the offense, even though at a
distance; He hears the disturbances created by
the offense and proceeds at once to the scene; or
Offense is continuing or has been
consummated at the time arrest is made.
Entrapment
An arrest made after an entrapment does not
require a warrant inasmuch as it is considered a
valid warrantless arrest pursuant to Rule 113, Sec.
5(a) of the Rules of Court. [Teodicio v. CA (2004)]
Buy-bust operation
When the appellant is caught in flagrante as a
result of the buy-bust operation, the policemen are
not only authorized but are also under obligation to
apprehend the drug pusher even without a warrant
of arrest. [People v. de Lara (1994)]
Hot pursuit arrest
When an offense has just been committed and
the officer or private person has probable cause
to believe, based on PERSONAL knowledge of
facts or circumstances, that the person to be
arrested has committed it (Rule 113, Sec. 5(b))
Requisites:
(i) An offense has just been committed; and
There must be a large measure of immediacy
between the time the offense was committed
and the time of the arrest. If there was an
appreciable lapse of time between the arrest
and the commission of the crime, a warrant of
arrest must be secured [People v. del Rosario
(1999); People v. Agojo (2009)];
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UP COLLEGE OF LAW CRIMINAL PROCEDURE
The person making the arrest has probable cause to
believe, based on personal knowledge of facts,
that the person to be arrested has committed it.
Probable cause must be based on personal
knowledge which means an actual belief or
reasonable grounds of suspicion [Abelita III v.
Doria (2009)].
Arrest of escaped prisoner
When the person to be arrested is a prisoner
who has escaped: (Rule 113, Sec. 5(c))
From a penal establishment or place where he is
serving final judgment OR temporarily
confined while his case is pending; or
While being transferred from one confinement to
another.
Escapee may be immediately pursued or re-
arrested without a warrant at any time and in any
place within the Philippines. (Rule 113, Sec. 13)
Rationale: At the time of arrest, the escapee is in
continuous commission of a crime (i.e. evasion
of service of sentence).
Notes: Where a warrantless arrest is made under
the in flagrante and hot pursuit exceptions, the
person arrested without a warrant shall forthwith
arrested delivered to the nearest police station or
jail. (Rule 113, Sec. 5, last par.)
A WARRANTLESS arrest maybe made not only
by a peace officer but also by a private person.
Other lawful warrantless arrest
Where a person who has been lawfully arrested
escapes or is rescued (Rule 113, Sec. 13) Any
person may immediately pursue or retake him
without a warrant at any time and in any place
within the Philippines.
By the bondsman, for the purpose of surrendering
the accused. (Rule 114, Sec. 23)
Where the accused who is released on bail
attempts to leave the country without
permission of the court where the case is
pending. (Rule 114, Sec. 23)
RULES ON ILLEGALITY OF ARREST
Effect of illegal arrest
The legality of the arrest affects only the
jurisdiction of the court over the person of the
accused [People v. Nuevas (2007)].
A waiver of the right to question an illegal
warrantless arrest does not also mean a waiver of
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BAR OPERATIONS COMMISSION
the inadmissibility of evidence seized during an illegal
warrantless arrest [People v. Nuevas, supra].
Waiver of the illegality of the arrest
Any objection involving the arrest or the procedure
in the courts acquisition of jurisdiction over the
person of an accused must be made BEFORE he
enters his plea; otherwise the objection is deemed
waived [Zalameda v. People (2009)].
There is waiver if the accused voluntarily enters his
plea and participates during trial, WITHOUT
previously invoking his objections thereto [Leviste v.
Hon Alameda (2010_); Borlongan v. Pea (2010)].
There must be clear and convincing proof that
the accused had an actual intention to relinquish
his right to question the existence of probable
cause [Leviste v. Hon Alameda, supra;
Borlongan v. Pea, supra].
An application for or admission to bail shall not
bar the accused from challenging the validity of
his arrest or the legality of the warrant issued,
provided that he raises the objection before he
enters his plea. (Rule 114, Sec. 26).
When cured
When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People
(2009); People v. Alunday (2008)].
By the filing of an information in court and the
subsequent issuance by the judge of a warrant
of arrest [Sanchez v. Demetriou (1993)
METHOD OF ARREST
BY OFFICER WITH WARRANT
Duties of the arresting officer
(1) Execution of warrant (Rule 113, Sec. 4)
The head of the office to whom the warrant of
arrest was delivered shall cause the warrant to
be executed within 10 days from its receipt.
The officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant within 10 days after
expiration of the period to execute.
In case of the officers failure to execute, he
shall state the reasons therefor.
The officer shall inform the person to be arrested of
(1) the cause of the arrest and (2) the fact that a
UP COLLEGE OF LAW
warrant has been issued for his arrest. (Rule
113, Sec. 7)
Exceptions:
When he flees;
When he forcibly resists before the officer
has opportunity to so inform him;
When the giving of such information will
imperil the arrest.
The officer need not have the warrant in his
possession at the time of the arrest BUT after
the arrest, if the person arrested so requires,
the warrant shall be shown to him as soon as
practicable. (Rule 113, Sec. 7)
This is not a case of a warrantless arrest but
merely an instance of an arrest effected by
the police authorities without having the
warrant in their possession at that precise
moment. [Mallari v. CA (1996)]
The officer executing the warrant shall arrest the
accused and deliver him to the nearest police
station or jail without unnecessary delay
(Rule 113, Sec. 3)
No violence or unnecessary force shall be used in
making an arrest. (Rule 113, Sec. 2, last par.).
Rights of the arresting officer
(1) To summon assistance (Rule 113, Sec. 10)
He may orally summon as many persons as
he deems necessary to assist him in effecting
the arrest.
To break into building or enclosure (Rule 113,
Sec. 11)
Requisites:
The person to be arrested is or is reasonably
believed to be in said building;
He has announced his authority and purpose
of entering therein; and
He has requested and been denied
admittance.
Also applicable where there is a valid arrest
without a warrant.
To break out from the building/enclosure when
necessary to liberate himself (Rule 113, Sec.
12) Also applicable where there is a valid
warrantless arrest.
To search the person arrested for dangerous
weapons or anything which may have been
used or constitute proof in the commission of an
offense without a warrant (Rule 126, Sec. 13)
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
BY OFFICER WITHOUT WARRANT
Duties of arresting officer without warrant
The officer shall inform the person to be arrested of
his authority and (2) the cause of the arrest. (Rule
113, Sec. 8)
Exceptions:
When the person to be arrested is engaged in
the commission of the offense;
When he is pursued immediately after its
commission;
When he has escaped, flees or forcibly resists
before the officer has the opportunity to so
inform him; or
When the giving of such information will imperil
the arrest.
BY PRIVATE PERSON (CITIZENS ARREST)
Duties of private person effecting an arrest
The private person shall inform the person to be
arrested of (1) the intention to arrest him and
(2) the cause of the arrest. (Rule 113, Sec. 9)
Exceptions: Same as those for arrest by an
officer without a warrant.
The private person must deliver the arrested
person to the nearest police station or jail, and
he shall be proceeded against in accordance
with Rule 112, Sec. 7. Otherwise, the private
person may be held liable for illegal detention.
REQUISITES OF A VALID WARRANT OF ARREST
ESSENTIAL REQUISITES OF A VALID ARREST
WARRANT (ART. III, SEC. 2, 1987 CONSTITUTION)
Must be issued upon probable cause determined
PERSONALLY by the judge after examination
under oath or affirmation of the complainant and
the witnesses he may produce; and
The warrant must particularly describe the
person to be arrested.
INSTANCES WHEN JUDGE ISSUES WARRANT OF ARREST
Upon the filing of the information by the public
prosecutor and after personal evaluation by the
judge of the prosecutors resolution and
supporting evidence. (Rule 112, Sec. 5(a))
The judge does not have to personally examine
the complainant and his witnesses. Established
doctrine provides:
He shall personally evaluate the report and the
supporting documents submitted by the fiscal
PAGE 168
UP COLLEGE OF LAW
regarding the existence of probable cause and, on
the basis thereof, issue a warrant of arrest; OR
If on the basis thereof he finds NO probable cause,
he may disregard the fiscals report and require the
submission of supporting affidavits of witnesses.
[People v. Gray (2010); AAA v. Carbonell
(2007))]
DETERMINATION OF PROBABLE CAUSE
FOR ISSUANCE OF WARRANT OF ARREST
Probable cause test
Probable cause, in connection with the issuance of a
warrant of arrest, assumes the existence of facts and
circumstances that would lead a reasonably discreet
and prudent man to believe that a crime has been
committed and that it was likely committed by the
person sought to be arrested. [People v. Tan (2009)]
Probable cause demands more than suspicion
but it requires less than evidence that would
justify conviction. [People v. Gabo (2010)]
DISTINGUISH PROBABLE CAUSE
FISCAL FROM THAT OF A JUDGE
Fiscal Judge
Executive determinationJudicial determination of
of PC PC
Determination of PC toDetermination of PC to
hold a person for trial issue a warrant of arrest
W/N there is reasonable W/N a warrant of arrest
ground to believe that the should be issued
accused is guilty of the
offense charged and
should be held for trial
Rule: The determination of probable cause for
issuing a warrant of arrest is made by the judge.
The preliminary investigation proper---whether
or not there is a reasonable ground to believe
that the accused is guilty of the offense
charged---is the function of the investigating
prosecutor [AAA v. Carbonell (2007)].
Bail
NATURE
DEFINITION
Bail is the security given for the release of a person in
custody of the law, furnished by him or a bondsman,
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
to guarantee his appearance before any court as
required under conditions hereinafter specified.
[Rule 114, Sec. 1]
PURPOSES
To relieve an accused from imprisonment until his
conviction and yet secure his appearance at the
trial. [ People v. The Hon. Donato (2011)]
To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt [Art.
III, Sec. 14, Const]; and
To enable him to prepare his defense without
being subject to punishment prior to
conviction [Cortes v. Judge Catral (1997)].
AS REGARDS THE REQUIREMENT OF CUSTODY
General Rule: Custody of the law is required
before the court can act on an application for
bail [Miranda v. Tuliao (2006)]
Exceptions (When witness/es post bail):
When bail is required to guarantee the
appearance of a material witness [Sec. 14,
Rule 119];
OF When bail is required to guarantee the
appearance of a prosecution witness in
cases where there is substitution of the
information [Riano, citing Sec. 14, Rule 110]
WHEN A MATTER OF RIGHT; EXCEPTIONS
BAIL AS A MATTER OF RIGHT
When bail is a matter of right [Rule114, Sec. 4]
Before or after conviction pending appeal by the
MTC.
Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua.
WHEN BAIL NOT AVAILABLE
When evidence of guilt is strong in capital
offenses or those punishable by death,
reclusion perpetua or life imprisonment.
Exception: When the accused is a minor, he is
entitled to bail regardless of whether the
evidence of guilt is strong.
Capital Offense
An offense which under the law existing at the time
of commission and of the application for admission
to bail is punishable by death. [Rule 114, Sec. 6]
The capital nature of the offense is determined
by the penalty prescribed by law and not the one
actually imposed.
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UP COLLEGE OF LAW CRIMINAL PROCEDURE
Note: R.A. 9346 (An Act Prohibiting the
Imposition of in the Philippines) enacted on June
24, 2006 (which repealed R.A. No. 8177 and R.
A. No. 7659) prohibited the imposition of death
penalty. Under R.A. 9346, it stated that:
Section 7. Capital offense or an offense punishable
by reclusion perpetua or life imprisonment
Bail in extradition proceedings
Basis: [Gov. of USA vs Purganan & Jimenez (2002)]
General Rule: Right to bail is available only in
criminal proceedings and does not apply to
extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
Exception: Only upon a clear and convincing
evidence:
that once granted, the applicant will not be flight
risk or will not pose danger to the community;
and
that there exists special humanitarian and
compelling circumstances.
Note: Bail is a matter of discretion in extradition
proceedings [Government of Hong Kong Special
Administrative Region v. Olalia (2007)]
Right to bail is not available:
To military personnel accused under general courts
martial [Comendador v. de Villa (1991)]
After a judgment of conviction has become final
If he applied for probation before finality, he
may be allowed temporary liberty under his
bail [Rule 114, Sec. 24].
After the accused has commenced to serve his
sentence [Rule 114, Sec. 24]
WHEN A MATTER OF DISCRETION [RULE
114, SEC. 5]
Before conviction, in offenses punishable by death,
reclusion perpetua or life imprisonment and
evidence of guilt is not strong
Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or
life imprisonment.
It may be filed in and acted upon by the RTC
despite the filing of notice of appeal, provided
that it has not transmitted the original record
to the appellate court.
If the RTC decision changed nature of the offense
from non-bailable to bailable, the application for
bail can be resolved only by the appellate court.
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BAR OPERATIONS COMMISSION
Note: In hearing the petition for bail, the
prosecution has the burden of showing that the
evidence of guilt is strong. [Rule 114, Sec. 8]
In deportation proceedings, bail is discretionary
upon the Commissioner of Immigration and
Deportation. [Harvey v. Defensor-Santiago (1990)]
WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL
BE DENIED:
If the penalty imposed by the trial court is
imprisonment exceeding 6 years, the accused
shall be denied bail or his bail shall be cancelled
upon showing by the prosecution, with notice to
the accused, of any of the following:
Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused.
The accused previously escaped from legal
confinement, evaded sentence or violated
bail conditions without valid justification.
Commission of offense while under probation,
parole or conditional pardon by the accused.
Probability of flight.
Undue risk that the accused may commit
another crime during pendency of appeal.
HEARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES [SEC. 8, RULE 114]
Note: RA 9346, Section 7. Capital offense or an
offense punishable by reclusion perpetua or life
imprisonment or life imprisonment
CONVICTION
This refers to conviction by the trial court, which
has not become final, as the accused still has
the right to appeal. After conviction by the trial
court, the accused convicted of a capital offense
is no longer entitled to bail, and can only be
released when the conviction is reversed by the
appellate court. [Section 13, Article III, Const.]
PROSECUTION HAS BURDEN OF PROOF
At the hearing of an application for bail filed by a
person in custody for the commission of an
offense punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.
Evidence of Guilt in the Constitution and the
Rules refers to a finding of innocence or culpability,
regardless of the modifying circumstances.
REGARDING MINORS CHARGED WITH A CAPITAL OFFENSE
If the person charged with a capital offense is
admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that
UP COLLEGE OF LAW CRIMINAL PROCEDURE
prescribed by law, he is entitled to bail regardless of
whether the evidence of guilt is strong. The reason for
this is that one who faces a probable death sentence
has a particularly strong temptation to flee.
This reason does not hold where the accused
has been established without objection to be
minor who by law cannot be sentenced to death.
DUTY OF JUDGE TO CONDUCT HEARING
Duties of the trial judge in a petition for bail
Notify the prosecutor of the hearing and require
him to submit his recommendation;
Conduct a hearing of the application regardless
of whether or not prosecution refuses to
present evidence to show that the guilt of the
accused is strong;
Decide whether the evidence of guilt of the
accused is strong based on the summary of
the evidence of the prosecution;
If the guilt of the accused is not strong,
discharge the accused upon the approval of
the bail bond. Otherwise, petition should be
denied. [Riano, citing Narciso v. Santa
Romana-Cruz, 328 SCRA 505]
Note: Evidence presented during the bail
hearing are automatically reproduced at the trial
[Sec. 8, Rule 114]
WHERE THE APPLICATION IS FILED: [SEC. 17, RULE 114; AS
AMENDED BY AM 05-08-26]
General Rule: The application may be filed with
the court where the case is pending.
Exceptions:
If the judge of the court where the case is pending is
absent or unavailable, the application may be
filed with any RTC/MTC/MeTC/MCTC judge in
the province, city or municipality.
Where the accused is arrested in a province,
city/municipality other than where the case
is pending, the application may be filed with
any RTC of the said place. If no judge is
available, then with any MeTC/MTC/MCTC
judge in the said place. Judge who accepted
the application shall forward it, together with
the order of release and other supporting
papers where the case is pending
When a person is in custody but not yet charged,
he may apply with any court in the province or
city/municipality where he is held.
Note: Where the grant of bail is a matter of
discretion, or the accused seeks to be released on
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BAR OPERATIONS COMMISSION
recognizance, the application may only be filed in the
court where the case is pending, on trial, or appeal.
GUIDELINES IN FIXING AMOUNT OF BAIL
[RULE 114, SEC. 9]
Primarily, but not limited to, the following factors:
Financial ability of the accused
Nature and circumstances of the offense
Penalty for the offense charged
Character and reputation of the accused
Age and health of the accused
Probability of the accused appearing at the trial
Forfeiture of other bail
Fact that accused was a fugitive from justice
when arrested
Forfeiture of other bail
Pendency of other cases where the accused is on
bail.
BAIL WHEN NOT REQUIRED [SEC. 16, RULE
114] When a person has been in custody for a
period equal to or more than the possible
maximum imprisonment of the offense charged
to which he may be sentenced.
If the maximum penalty is destierro, he shall be
released after 30 days of preventive imprisonment.
In cases filed with the MTC/MCTC for an offense
punishable by an imprisonment of less than 4 yrs,
2 mos. and 1 day, and the judge is satisfied that
there is no necessity for placing the accused under
custody. [Riano, citing Sec. 8, Rule 112]
In cases where a person is charged with violation of a
municipal/city ordinance, a light felony and/or criminal
offense, the penalty of which is not higher than 6mos
imprisonment and/or a fine of 2000 or both where it is
established that he is unable to post the required cash
or bail bond. [Sec. 1, RA 6036]
Exceptions:
Caught committing the offense in flagrante
When accused confesses to the commission of the
offense unless he later repudiates the same in
a sworn statement or in open court as having
been extracted through force or intimidation
Found to have previously escaped legal
confinement, evaded sentence, or jumped bail
Found to have violated Sec. 2 of RA 6036 which
provides that the violation of the accused of the
sworn statement (required instead of bail) shall
justify the court to order his immediate arrest, if
the accused failure to report is not justified
Accused is a recidivist or habitual delinquent or
has been previously convicted for an offense to
UP COLLEGE OF LAW CRIMINAL PROCEDURE
which the law/ordinance attaches an
equal/greater penalty or for two/more
offenses to which it attaches a lighter penalty
Accused committed the offense while on parole
or under conditional pardon
Accused has previously been pardoned for
violation of municipal/city ordinance for at least
two times [Riano, citing Sec. 1, RA 6036]
INCREASE OR REDUCTION OF BAIL
After the accused is admitted to bail and for
good cause, the court may increase or decrease
the amount.
INCREASED BAIL
Accused may be committed to custody if he
does not give bail in the increased amount within
a reasonable period of time. [Rule 114, Sec. 20]
REDUCED BAIL
Person in custody for a period equal to or more
than the minimum of the principal penalty
prescribed for the offense charged may be
released on a reduced bond. [Rule 114, Sec. 16]
FORFEITURE AND CANCELLATION OF BAIL
FORFEITURE OF BAIL [RULE 114, SEC. 21]
If the accused failed to appear in person as required,
bondsmen are given 30 days within which to:
Produce the body of the principal or give reason
for the non-production. Bondsmen may:
Arrest the accused;
Cause him to be arrested by a police officer
or any other person of suitable age or
discretion upon written authority endorsed on
a certified copy of the undertaking.
Explain why the accused failed to appear.
If the bondsmen fail to do these, judgment
is rendered against them, jointly and
severally, for the amount of the bail.
Bondsmens liability cannot be mitigated or
reduced, unless the accused has been
surrendered or is acquitted.
CANCELLATION OF BAIL [RULE 114, SEC. 22]
Application by bondsmen
Upon application of the bondsmen with due notice
to the prosecutor, bail may be cancelled upon:
surrender of the accused; OR
proof of his death
Hold Departure Order
When it may issue Against the accused, irrespective of Against the accused, irrespective of
nationality, in criminal cases falling within nationality, in criminal cases pending
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BAR OPERATIONS COMMISSION
Automatic Cancellation
Upon acquittal of the accused
Upon dismissal of the case
Upon execution of judgment of conviction
APPLICATION NOT A BAR TO OBJECTIONS
IN ILLEGAL ARREST, LACK OF OR
IRREGULAR PRELIMINARY INVESTIGATION
Bail is no longer a waiver of these objections
[Rule 114, Sec. 26; Leviste v. Alameda (2011)].
Provided that the proper objections are timely
raised (i.e., before accused enters a plea), an
application or an admission to bail shall NOT bar
the accused from challenging or questioning the:
Validity of his arrest.
Legality of the arrest warrant.
Regularity of preliminary investigation
Absence of preliminary investigation
The court shall resolve the objections as early
as practicable but not later than the start of the
trial of the case.
HOLD DEPARTURE ORDER & BUREAU OF
IMMIGRATION WATCHLIST
Bondsmen can prevent accused from leaving
country by arresting him or asking for him to be
re-arrested by a police officer upon written
authority. [Rule 114, Sec. 23]
The accused may be prohibited from leaving the
country during the pendency of his case. [PP v.
Uy Tuising (1935); Manotoc v. CA (1986)] If the
accused released on bail attempts to depart
from the Philippines without the permission of
the court where his case is pending, he may be
re-arrested without warrant. [Rule 114, Sec. 23]
Hold-Departure/ Watchlist/ Allow Departure Orders
A hold-departure order may be issued only by the
RTCs in criminal cases within their exclusive
jurisdiction. [SC Circular No. 39-97 (June 19, 1997)]
SC Circular 39-97 deals with criminal cases pending
in the RTC. This created a void, as to those cases
pending in the MTC as well as those under
preliminary investigation. Thus the DOJ promulgated
DOJ Circular No. 41 governing the issuance of HDO,
Watchlist Orders, and Allow Departure Orders.
[Whereas clause of DOJ Circular No. 41]
Watchlist Order
UP COLLEGE OF LAW CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION

the jurisdiction of first-level courts (MeTC, before the RTC

MTC, MCTC) Against the respondent, irrespective of

Against the alien whose presence is nationality, in criminal cases pending

required either as a defendant, preliminary investigation, PFR, or MR
respondent, or witness in a civil or labor before the DOJ or any of its prosecution
case pending litigation, or any case before offices
an administrative agency of the
government. Against any person pursuant to the Anti-
Trafficking in Persons Act of 2003 (RA
Against any person, either motu proprio, 9208) or in the interest of national
or upon the request by the Head of a security, public safety or public health
Department of the Government, 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.
Validity 5 years reckoned from the date of its 60 days reckoned from the date of its
issuance, unless sooner terminated issuance, unless sooner terminated or
extended for a non-extendible period of
not more than 60 days
Groundsfor liftingor When the validity period has already When the validity period has already
cancellation expired expired
When the accused has been allowed to When the accused has been allowed by

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 was issued has
been dismissed or the warrant/order of
arrest has been recalled.
the court to leave the country during the
pendency of the case, or has been
acquitted of the charge
When the PI is terminated, or when the
PFR or MR has been denied and/or
dismissed

When Allow Departure Orders (ADOs) may
issue: for exceptional reasons to allow the person
to leave upon submission of the following:
An affidavit of purpose, including an undertaking to
report to the DOJ immediately upon return
Authority to travel or travel clearance from the
court or appropriate government office or
from the investigating prosecutor

The Rules or the law may, however, provide for

Rights of the Accused a presumption of guilt. [Hizon v. CA (2009)]

RIGHTS OF ACCUSED AT THE TRIAL [RULE 115]
TO BE PRESUMED INNOCENT UNTIL THE CONTRARY
IS PROVED BEYOND REASONABLE DOUBT
The presumption of regularity in the performance of
official duty cannot by itself overcome the
presumption of innocence nor constitute proof beyond
reasonable doubt. [People v. Sanchez (2008)]
In Hizon v. Court of Appeals (2009), the Court
stressed that the statutory presumption is merely
prima facie. At no instance can the accused be
denied the right to rebut the presumption.
Proof beyond reasonable doubt does not mean such
a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is

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required, or that degree of proof which produces
convinction in an unprejudiced mind. [Rule 133, Sec.2]
Where the evidence in a criminal case is evenly
balanced, the constitutional presumption of
innocence titlts the scales in favor of the
accused [People v. Erguioza (2008)]. This is the
equipoise rule.
TO BE INFORMED OF THE NATURE AND
CAUSE OF ACCUSATION AGAINST HIM
An accused cannot be convicted of an offense,
unless it is clearly charged in the complaint or
information. [People v. Ortega (1997)]
Charge must be set forth with sufficient particularity
to enable the accused to intelligently prepare his
defense. [Balitaan v. CFI of Batangas (1982)]
The purpose is served by arraignment. [Borja v.
Mendoza (1977)] The title of the complaint, or
the designation of the offense charged or the
particular law violated is not controlling. No
information for a crime will be sufficient if it does
not accurately and clearly allege the elements of
the crime charged. [People v. Dimaano (2005)]
TO BE PRESENT AND DEFEND IN PERSON AND BY
COUNSEL AT EVERY STAGE OF THE PROCEEDINGS
Right to be present
General Rule: Presence of the accused during
the criminal action is not required and shall be
based on his sole discretion.
Exception: Presence of the accused is mandatory:
For purposes of identification;
At arraignment; [Rule 116, Sec. 1(b)]
At the promulgation of judgment;
Exception: If the conviction is for a light offense.
[Rule 120, Sec. 6]
This right may be waived when:
The accused is absent without just cause at the
trial of which he had notice; or
The accused under custody escapes, until
custody over him is regained.
Trial in absentia
Requisites: [Parada v. Veneracion (1997)]
Prior arraignment;
Proper notice of the trial;
Failure to appear is unjustifiable.
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Effects: Waiver of right to be present, right to
present evidence and right to cross-examine
witnesses. [Gimenez v. Nazareno (1988)]
Right to counsel
It means reasonably effective legal assistance.
[Gideon v. Wainright (1963)]
It is absolute and may be invoked at all times,
even on appeal. [Telan v. CA (1991)]
Duty to appoint counsel de oficio is mandatory
only at the time of arraignment. [Sayson v.
People (1988)]
Violation of this right entitles the accused to new trial.
[People v. Serzo (1997)]The right to counsel 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 (2004)]. It must also not be
contrary to law, public order, public policy, morals
or good customs.
Even a person under investigation for an offense
shall the right to have a competent and
independent counsel preferably of his own
choice Included in this right is the right to be
informed of his right to counsel [Sec. 12[1], Art.
II, 1987 Constitution; Sec 2(b) RA 7438].
Right to defend in person
Only when it sufficiently appears that he can
protect his rights without the assistance of
counsel [Sec. 1[b], Rule 115, Rules of Court]
TO TESTIFY AS WITNESS IN HIS BEHALF
But subject to cross-examination on any matter
covered by his direct examination. (Sec. 1[d]. Rule
115) Silence will not, in any manner, prejudice him.
RIGHT AGAINST SELF-INCRIMINATION (2005 BAR)
The right against self-incrimination has no
application to juridical persons. [BASECO v.
PCGG (1987)]
The constitutional guaranty, that no person shall be
compelled in any criminal case to be a witness
against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The
corollary to the proposition is that, an ocular
inspection of the body of the accused is
permissible. [Villafor vs. Summers (1920)] The
proviso is that torture of force shall be avoided.
The right is applicable to one who is compelled to
produce a document, and one who is compelled to
furnish a specimen of his handwriting, for in both
cases, the witness is required to furnish evidence
against himself. [People v. Nicandro (1986)]
UP COLLEGE OF LAW CRIMINAL PROCEDURE
An accused occupies a different tier of protection
from an ordinary witness. He is entitled 1) to be
exempt from being a witness against himself, and
2) to testify as witness in his own behalf; BUT if he
offers himself as a witness he may be cross-
examined as any other witness; however, his
neglect or refusal to be a witness shall not in any
manner prejudice or be used against him. [People
v. Judge Ayson (1989)]
Thus, the right may be waived by the failure to timely
assert the right, that is, by answering an incriminating
question [Beltran v. Samson (1929)] when the
accused testifies in his own behalf and is cross-
examined on matters covered by the direct
examination. [Sec. 1(f), Rule 115] The questions on
cross examination should be on matters related to his
direct examination. [People v. Judge Ayson, supra]
RIGHT TO CONFRONTATION
Applies to any witness against the accused at
the trial.
Where the adverse party is deprived of the right
to cross-examine the persons who executed the
affidavits, said affidavits are generally rejected
for being hearsay. [Estrella v. Robles, Jr. (2007)]
HOWEVER, either party may utilize as part of its
evidence the testimony of a witness who is
deceased, out of or cannot with due diligence be
found in the Philippines, unavailable or otherwise
unable to testify, given in another case or
proceeding, judicial or administrative, PROVIDED
they involve the same parties and subject matter
and the adverse party had the opportunity to cross-
examine him. [Sec. 1(f), Rule 115]
This right is waived by non-appearance.
[Carredo v. People (1990)]
The right does not apply in a preliminary
investigation. They parties may, however, submit
to the investigating officers questions which may
be asked to the party or witness concerned.
[Sec. 3(e), Rule 112]
Identification by a witness of the accused is
inadmissible if the accused had no opportunity
to confront witness. [People v. Lavarias (1968)]
RIGHT TO COMPULSORY PROCESS
This right may be invoked by the accused to
secure the attendance of witnesses and the
production of witnesses in his behalf.
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BAR OPERATIONS COMMISSION
If a subpoena is issued and the witness failed to
appear, the court should order the arrest of the
witness if necessary. [People v. Montejo (1967)]
RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL
In determining whether or not the right to speedy
disposition of cases has been violated, this
Court has laid down the following guidelines
[Tan v. People (2009); Olbes v. Buemio (2009)]:
Length of the delay;
Reasons for such delay;
Assertion or failure to assert such right by the
accused; and
Prejudice caused by the delay.
Remedy against denial of right:
Motion to Dismiss [Corpuz v Sandiganbayan
(2004)]
The accused is not entitled to a dismissal where
such delay was caused by proceedings or motions
instituted by him.A dismissal based on a violation
of the right to speedy trial is equivalent to an
acquittal and double jeopardy may attach even if
the dismissal is with the consent of the accused.
[Condrada v. People (2003)]
Mandamus. [Lumanlao v. Hon. Peralta (2006)]
RIGHT TO APPEAL
In all criminal prosecutions, the accused shall
have the right to appeal in the manner
prescribed by law. [Hilario v. People (2008)]
An appeal in criminal case opens the ENTIRE case
for review and the appellate court may correct
even unassigned errors. [People v. Tambis (2008)]
The right to appeal is a statutory right and the
requirements must be complied with; otherwise,
the right is lost. [People v. Sabellano (1991)]
If the accused escapes from confinement, appeal
is not allowed unless he voluntarily surrenders
within period for appeal. [People v. Omar (1991)]
The right to appeal is lost by the unjustified
failure to appear at the promulgation of judgment
of conviction [Villena v. People, (2011)]
RIGHTS OF PERSONS UNDER CUSTODIAL
INVESTIGATION [SEC. 2, RA 7438]
Custodial Investigation involves any questioning
initiated by law enforcement officers after a
person has been taken into custody or otherwise
deprived of his freedom of action in any
significant way. [Aquino v Paiste (2008)]
UP COLLEGE OF LAW
It shall include the practice of issuing an
invitation to a person who is investigated in
connection with an offense he is suspected to
have committed, without prejudice to the liability
of the inviting officer for any violation of law.
TO BE ASSISTED BY COUNSEL AT ALL TIMES
Waiver of the right to counsel must be made with the
assistance of counsel. [Art. 3, Sec. 12(1), Constitution]
Specifically in the following instances:
Signing of the written custodial report;
Signing of the written extra-judicial confession
(2008 Bar)
Requisites for the validity of an extrajudicial
confession made by a person arrested, detained
or under custodial investigation:
It shall be in writing and signed by such
person; and
It must be signed in the presence of his
counsel
OR, in the latters absence, upon a valid waiver;
In the event of a valid waiver, it must be signed 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.
Signing of the waiver to the provisions of Art.
125, RPC.
The modifier competent and independent in the
1987 Constitution is not an empty rhetoric. It
stresses the need to accord the accused, under
the uniquely stressful conditions of a custodial
investigation, an informed judgment on the
choices explained to him by a diligent and
capable lawyer [Lumanog v. People (2010)]
If he cannot afford to have his own counsel, he
must be provided with a competent and
independent counsel by the investigating officer.
Assisting counsel may be any lawyer, except those:
Directly affected by the case;
Charged with conducting preliminary
investigation;
Charged with the prosecution of crimes. [Sec. 3,
RA 7438)
TO REMAIN SILENT
TO BE INFORMED, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
AND TO HAVE COMPETENT AND INDEPENDENT
COUNSEL, PREFERABLY OF HIS OWN CHOICE, WHO
SHALL AT ALL TIMES BE ALLOWED TO CONFER
PRIVATELY WITH THE PERSON ARRESTED , DETAINED
OR UNDER CUSTODIAL INVESTIGATION
TO BE ALLOWED VISITS BY OR CONFERENCES WITH:
Any member of his immediate family
("Immediate family" includes his or her spouse,
fianc or fiance, parent or child, brother or
sister, grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward), or
Any medical doctor or
Priest or religious minister, chosen by him or by
any member of his immediate family or by his
counsel, or by any national NGO duly accredited
by the Commission on Human Rights or by any
international NGO duly accredited by the Office
of the President.
CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS
Failure to inform
Any arresting public officer or employee, or any
investigating officer, shall suffer a fine of P6,000.00
or a penalty of imprisonment of not less than 8
years but not more than 10 years, or both.
The investigating officer who has been previously
convicted of a similar offense shall suffer the
penalty of perpetual absolute disqualification.
Obstruction, prevention or prohibition of
right to visits or conferences
Any person guilty thereof shall suffer the penalty
of imprisonment of not less than 4 years nor
more than 6 years and a fine of P4,000.00
Arraignment and Plea
ARRAIGNMENT AND PLEA, HOW MADE
DEFINITION
The stage where the accused is formally informed
of the charge against him by reading before him
the information/complaint and asking him whether
he pleads guilty or not guilty. [Rule 116, Sec. 1(a)]
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja v.
Mendoza (1977)]
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DUTY OF THE COURT BEFORE ARRAIGNMENT The Court shall issue an order directing the
The court shall [Rule 116, Sec. 6]: public prosecutor to submit the record of the PI
Inform the accused of his right to counsel; to the branch COC for the latter to attach the
Ask him if he desires to have one; and same to the record of the case.
Must assign a counsel de officio to defend him;
unless the accused:
Is allowed to defend himself in person; or The court shall inform the accused of his right to
Has employed a counsel of his choice. counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
BEFORE ARRAIGNMENT AND PLEA , THE ACCUSED person or has employed counsel of his choice, the
MAY AVAIL OF ANY OF THE FOLLOWING: court must assign a counsel de oficio to defend him.
Bill of particulars to enable him to properly
plead and prepare for trial
Suspension of arraignment upon motion, the proper Arraignment
party may ask for suspension of arraignment to
pursue a petition for review before the DOJ If accused pleads Not Guilty
Secretary under Sec. 11, Rule 116; period of
suspension shall not exceed 60 days from filing of
petition with the reviewing office Affirmative defense (admits the
Motion to Quash at anytime before entering his plea, charge but raises exempting or
the accused may move to quash the complaint or justifying circumstances), then
information on any of the grounds under Sec. 3, Rule Reverse Order of Trial
117 in relation to Sec. 1, Rule 117
Challenge the validity of the arrest or legality of Negative defense (denies the
the warrant or assail the regularity or charge), then proceed to
question the absence of preliminary regular trial
investigation of the charge,
If accused pleads Guilty
PROVIDED that if the accused does not
question the legality of the arrest or search, this
objection is deemed waived. For Non-Capital Offenses,
promulgate judgment of
HOW ARRAIGNMENT MADE
conviction
In general
For Capital Offenses, the
prosecution is still required to
prove guilt beyond reasonable

If accused does not enter ANY plea, a

plea of Not Guilty is entered by the Court
Note: The time of the pendency of a motion to quash
or for a bill of particulars or other causes justifying
suspension of the arraignment shall be excluded in
computing the period. [Rule 116, Sec. 1(g)]

PAGE 177
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How Arraignment is Made
In open court where the complaint or information
has been filed or assigned for trial
By the judge or clerk of court
By furnishing the accused with a copy of the
complaint or information
Reading it in a language or dialect known to the
accused
Asking the accused whether he pleads guilty or
not guilty
When Arraignment Should be Held
General Rule: Accused should be arraigned
within 30 days from the date the court acquires
jurisdiction over his person.
Exception: Unless a shorter period is provided
for by law:
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)
Where the complainant is about to depart from
the Philippines with no definite date of return,
the accused should be arraigned without
delay (RA 4908)
Cases under RA 7610 (Child Abuse Act), the trial
shall be commenced within 3 days from
arraignment
Cases under the Dangerous Drugs Act
Cases under SC AO 104-96, i.e. 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
In case of failure of the OFFENDED PARTY to appear
despite due notice, the court may allow the accused
to enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the
conformity of the trial prosecutor alone. [Sec. 1(f),
Rule 116; SC AM No. 03-1-09-SC Part B(2)]
In case of failure of ACCUSED to appear despite
due notice, there is NO ARRAIGNMENT IN
ABSENTIA [Nolasco v. Enrile (1985)] - The
presence of the accused is not only a personal
right but also a public duty, irrespective of the
gravity of the offense and the rank of the court.
There can be no trial in absentia without
first arraigning the accused; otherwise,
the judgment is null and void.
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BAR OPERATIONS COMMISSION
If the accused is under preventive detention
The case shall be raffled and its records transmitted
to the judge to whom the case was raffled within 3
days from the filing of the information or complaint.
The accused shall be arraigned within 10 days
from the date of the raffle.
SPECIFIC RULES ON ARRAIGNMENT
Trial in absentia may be conducted only after
valid arraignment.
Accused must personally appear during
arraignment and enter his pleal; counsel
cannot enter plea for the accused.
Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary.
Generally, judgment is void if accused has not
been validly arraigned.
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.
If an information is amended in substance which
changes the nature of the offense, arraignment
on the amended information is MANDATORY.
EXCEPT if the amendment is only as to form
See Teehankee, Jr. v. Madayag, GR No.
103102, March 6, 1992
WHEN SHOULD PLEA OF NOT GUILTY BE
ENTERED
INSTANCES WHEN A PLEA OF NOT GUILTY TO BE
ENTERED FOR THE ACCUSED [RULE 116, SEC. 1(C)]
When the accused so pleaded
When he refuses to plead
When he makes a conditional or qualified plea of
guilt
When the plea is indefinite or ambiguous
When he pleads guilty but presents exculpatory
evidence
If the accused who pleaded guilty presents
exculpatory evidence, his plea of guilt is withdrawn.
The judge must order the accused to plead again
or at least direct that a new plea of not guilty be
entered for him, otherwise there shall be no
standing plea for the accused. This is significant
because if there is no standing plea, the accused
cannot invoke double jeopardy later on.
UP COLLEGE OF LAW
WHEN ACCUSED MAY ENTER A PLEA OF GUILTY TO
A LESSER OFFENSE [RULE 116, SEC. 2]
PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT
At arraignment, the accused, with the consent of the
offended party and prosecutor, may be allowed by the
trial court to plead guilty to a lesser offense which is
necessarily included in the offense charged.
PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT
BUT BEFORE TRIAL
After arraignment but before trial, the accused
may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty.
No amendment of the complaint or information is
necessary.
PLEA TO A LESSER OFFENSE AFTER TRIAL HAS BEGUN
After the prosecution has rested its case, a change
of plea to a lesser offense may be granted by the
judge, with the approval of the prosecutor and the
offended party if the prosecution does not have
sufficient evdiecne to establish the guilt of the
accused for the crime charged. The judge cannot
on its own grant the change of plea.
ACCUSED PLEAD GUILTY TO CAPITAL
OFFENSE, WHAT THE COURT SHOULD DO
[SEC. 3, RULE 116]
DUTY OF THE COURT WHEN ACCUSED PLEADS
GUILTY TO A CAPITAL OFFENSE
Conduct a searching inquiry into the voluntariness
and full comprehension of the consequences of the
pleas
Require prosecution to present evidence to
prove the guilt and precise degree of culpability
of the accused
Ask the accused if he desires to present evidence in
behalf and allow him to do so if he desires
SEARCHING INQUIRY
PLEA OF GUILTY TO A CAPITAL OFFENSE [RULE 116, SEC.
3]
The procedure in Sec. 3, Rule 116 is mandatory.
The plea must be clear, definite and unconditional.
It must be based on a free and informed judgment.
The judge must ask whether the accused was
assisted by counsel during CI and PI; ask
questions on age, educational attainment and
socio-economic status; and ask the defense
counsel WON he conferred with the accused.
[People v. Nadera (2000)]
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
Rationale: To proceed with more care where the
possible punishment is in its severest form; to
avoid improvident pleas of guilt.[People v.
Samontanez (2000)]
IMPROVIDENT PLEA OF GUILTY TO A
CAPITAL OFFENSE
DEFINITION
Plea without proper information as to all the
circumstances affecting it; based upon a
mistaken assumption or misleading
information/advice. [Blacks Law Dictionary]
General rule: An improvident plea should not be
accepted. If accepted, it should not be held to be
sufficient to sustain a conviction. [People v. De
Ocampo Gonzaga (1984)] The case should be
remanded to the lower court for further proceedings.
Exception: If the accused appears guilty beyond
reasonable doubt from the evidence adduced by
the prosecution and defense.
WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN
At any time before judgment of conviction
becomes final, the court may permit an
improvident plea of guilty to be withdrawn and
be substituted by a plea of not guilty.
The withdrawal of a plea of guilty is not a matter of
right of the accused but of sound discretion of the
trial court [People v. Lambino, 103 Phil 504, 1958]
The reason for this is that trial has already begun
and the withdrawal of the plea will change the
theory of the case and put all past proceedings to
waste. Moreover, at this point, there is a
presumption that the plea was made voluntarily
GROUNDS FOR SUSPENSION OF
ARRAIGNMENT [RULE 116, SEC. 11]
UNSOUND MENTAL CONDITION OF THE ACCUSED AT
THE TIME OF THE ARRAIGNMENT
When the accused can neither comprehend the
full import of the charge nor can he give an
intelligent plea.
The court shall order his mental examination
and, if necessary, his confinement.
The need for suspension may be determined
from physical and outward manifestations at
the time of arraignment indicative of a
mental disorder which the court had
observed and defense counsel had called
attention to. [People v. Alcalde (2002)]
PAGE 179
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OFFICE OF THE
3 major criteria to determine insanity: [People v.
Dungo (1991)]
DELUSION TEST Insanity is manifested by a
false belief for which there is no reasonable
basis and which would be incredible under
the given circumstances.
IRRESISTIBLE IMPULSE TEST The accused has
lost the power to choose between right and
wrong, to avoid the act in question, his free
agency being at that time destroyed.
RIGHT AND WRONG TEST A perverted
condition of mental and mortal faculties
as to render him incapable of
distinguishing between right and wrong
Tests to determine insanity: [People v. Pascual
(1993)]
TEST OF COGNITION Complete
deprivation of intelligence in committing
the criminal act. It is the test adopted in
this jurisdiction.
TEST OF VOLITION A total deprivation of
free will.
PREJUDICIAL QUESTION EXISTS
Rationale: A prejudicial question would be
determinative of guilt or innocence.
BAR OPERATIONS COMMISSION
It may be raised during PI. If the information is
filed in court, it may be raised as ground to
suspend the arraignment.
PENDING PETITION FOR REVIEW OF THE RESOLUTION OF
THE PROSECUTOR WITH THE DOJ
OR PRESIDENT.
The accused should file a motion to suspend
and to secure a ruling on his petition for review
within 60 days from the filing of the petition.
(DOJ Circular No. 70)
Rationale: Need to observe judicial courtesy and
to avoid legal complications in case the
resolution would be different from the offense for
which the accused was arraigned, especially if it
would upgrade the offense.
With the arraignment of the accused, the DOJ
Secretary can no longer entertain the appeal or
petition for review because petitioner had
already waived or abandoned the same.
[Gandarosa v. Flores, July 17, 2007]
PENDING MOTION TO QUASH
If petition for review is not resolved within 60
days, court may insist on arraigning already

Motion to Quash
Time for Filing: Any time before the accused
enters his plea [Sec. 1, Rule 117]
Form and Contents
Must be in writing;
Signed by the accused/his counsel; and
Distinctly specify the factual and legal grounds.
[Sec. 2, Rule 117]
In case of Summary Procedure
MTQ is allowed only if made on the grounds of
lack of jurisdiction or failure to comply with
barangay conciliation proceedings. [Sec. 19,
Rules on Summary Procedure]
GROUNDS [RULE 117, SEC. 3] (1998 BAR)
The following grounds for MTQ are EXCLUSIVE:
Facts charged do not constitute an offense
Court trying the case has no jurisdiction over the
offense charged.
Court trying the case has no jurisdiction over the
person of the accused.
Officer who filed the information had no authority
to do so.
PAGE 180
The information does not conform substantially
to the prescribed form.
More than one offense is charged
Exception: When a single punishment for
various offenses is prescribed by law
Criminal action or liability has been extinguished.
Averments which, if true, would constitute a
legal excuse or justification.
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 Rule)
Note: Although the rule is that grounds not
asserted in the motion to quash are waived, the
following objections are not subject to waiver:
Facts charged do not constitute an offense
Court trying the case has no jurisdiction over the
offense charged
Criminal action or liability has been extinguished
Double jeopardy
FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE
An information which does not charge an offense or
does not allege essential elements of a crime is void.
Test: WON the facts alleged, if hypothetically
admitted, would establish the essential elements of
the offense, as defined by law without considering
matters aliunde. [People v. Romualdez (2008)]
UP COLLEGE OF LAW
That a) the missing element may be proved
during the trial or that b) the prosecution has
presented evidence to establish the same
cannot have the effect of validating the void
information or of proving an offense which does
not exist. [People v. Asuncion (1988)]
Instead of dismissing, the court should give the
prosecution an opportunity to amend the
information. [Rule 117, Sec. 4]
Should the prosecutor fail to make the
amendment or should the information suffer from
the same defect despite amendment, the MTQ
shall be granted. [Rule 117, Sec. 4]
When the prosecutor dismisses the case, the
prosecutor should file a valid information, not a
petition for review for certiorari.
The defect is not cured by a failure to move to quash
or by a plea of guilty. [Suy Sui v. People (1953)]
General Rule: In a MTQ, facts other than those
alleged in the complaint/information may NOT
be considered by the court.
Exceptions:
Facts already admitted by the prosecution [People
Navarro];
Undisputed facts apparent from the records of the PI
and not denied by the prosecutor. [Salonga
Pano (1985)]
Undisputed or undeniable facts that destroy the
prima facie truth accorded to allegations of the
information. [People v. de la Rosa (1988)]
ROC expressly permits the investigation of facts
alleged. [People v. Alagao (1966)] [Rule 117,
Sec. 2(f)(h), 4 & 5]
COURT HAS NO JURISDICTION OVER THE OFFENSE
CHARGED
Jurisdiction over the subject matter: The power
to adjudge concerning the general question
involved (See Discussion on Jurisdiction)
In a criminal prosecution, the place where the
offense was committed not only determines
venue, but is an essential element of jurisdiction.
[Rule 110, Sec. 15; Lopez v. City Judge (1966)]
In private crimes, the complaint of the offended
party is necessary to confer authority to the court.
The court had jurisdiction over the case since, for
as long as he continues to evade the service of his
sentence, he is deemed to continue committing the
crime, and may be arrested without warrant at any
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
place where he may be found. [Parulan v.
Director of Prisons (1968)]
COURT HAS NO JURISDICTION OVER THE PERSON OF
THE ACCUSED
How jurisdiction is acquired
By arrest of the accused; or
By his voluntary appearance in court.
It is waivable expressly or by implication, unlike
jurisdiction over the territory and the subject matter.
When the accused files a MTQ based on this
ground, he must do so only on this ground. If he
raises other grounds, he is deemed to have
submitted his person to the jurisdiction of the
court. [Sanchez v. Demetriou (1993)]
When the objection is raised, the court should
resolve it before conducting trial to avoid
unnecessary expenditure of time and money.
[Mead v. Argel (1982)]
OFFICER WHO FILED INFORMATION HAD NO
AUTHORITY TO DO SO
Authority to file and prosecute criminal cases is
vested in:
Provincial fiscals and their assistants.
City fiscals and their assistants.
Chief State Prosecutor and his deputies
Other officers authorized by law (Ombudsman,
COMELEC, etc.)
The prosecutor who signed the information must
have territorial jurisdiction to conduct preliminary
investigation of the offense. [Cudia v. CA (1998)]
An Information filed in the Sandiganbayan must
be signed by a graft investigating officer with
prior approval of the Ombudsman.
Election Offenses: Must be signed by the duly
deputized prosecutors and legal officers of the
COMELEC.
Lack of authority of the officer to is not cured by
silence, acquiescence, express consent or even
by amendment.
COMPLAINT/INFORMATION DOES NOT CONFORM
SUBSTANTIALLY TO THE PRESCRIBED FORM
The formal and substantial requirements are
provided for in Rule 110, Sec. 6-12.
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General Rule: Lack of substantial compliance

renders the accusatory pleading nugatory.
Exception: Mere defects in matter of form may
be cured by amendment.
Objections not raised are deemed waived, and
the accused cannot seek affirmative relief on
such ground nor raise it for the first time on
appeal. [People v. Garcia (1997)]
Protection from prosecution under a statute of
limitation is a substantive right. [People v.
Sandiganbayan (1992)]
CONTAINS AVERMENTS WHICH, IF TRUE, WOULD
CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION
Justifying Circumstances [Art 11, RPC]

Vague or broad allegations are generally not Exempting Circumstances [Art 12, RPC]
grounds for a MTQ. The correct remedy is to file DISTINGUISH FROM DEMURRER TO EVIDENCE
for a bill of particulars. [Rule 116, Sec. 9]
Motion to Quash Demurrer to Evidence
MORE THAN ONE OFFENSE IS CHARGED
General Rule: The complaint or information must Filed before entering plea Filed after the prosecution
charge only one offense. [Rule 110, Sec. 13] has rested its case
Does not go into the Based upon the
Exception: Those cases in which existing laws merits of the case inadequacy of the
prescribe a single punishment for various offenses. evidence adduced by the
Complex and compound crimes, EXCEPT where one prosecution
offense was committed to conceal another.
An offense INCIDENTAL to the gravamen of the Grounds are stated in Ground is insufficiency of
offense charged. Rule 117 evidence to convict
A specific crime set forth in various counts, each Does not require a prior May be filed either with
of which may constitute a distinct offense. The leave of court leave or without leave of
narration of the specific of the specific acts is court
considered a bill of particular of facts upon which
Granting does not Granting is deemed an
the inference of guilt of the accused may be
necessarily follow a acquittal and would
based [People v. Yap (1968)]
dismissal (Court may preclude the filing of
order the filing of a new another information or
This ground is waivable. The accused may be
complaint or information) appeal by the prosecution
convicted of all the offenses alleged and proved
if he goes to trial without objecting to the If the court, in denying the The order denying the
inclusion of 2 or more separate offenses in the motion to quash acts with motion for leave to file a
same information. [People v. Villamor (1998)] grave abuse of discretion, demurrer shall not be
then certiorari or reviewable by appeal or
If the criminal acts are committed on different prohibition lies by certiorari before
occasions, each constitutes a separate offense. judgment
If the court denies the
CRIMINAL ACTION OR LIABILITY HAS BEEN EXTINGUISHED
demurrer to evidence filed
How criminal liability is extinguished with leave of court, the
Death of the accused - Liability for pecuniary accused may adduce
penalties is extinguished only if death occurs evidence in his defense.
before final judgment. When the demurrer is
Service of Sentence - Execution must be by filed without leave, the
virtue of a final judgment and in the form accused waives the right
prescribed by law. to present evidence and
Amnesty submits the case for
Absolute pardon judgment [Sec. 23, Rule
Prescription of the crime 119]
Prescription of the penalty
Pardon in private offenses

Enjoyment of an accrued right cannot forever be left

on a precarious balance. [People v. Reyes (1989)]

PAGE 182
UP COLLEGE OF LAW CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION

EFFECTS OF SUSTAINING THE MOTION TO Consequence: Consequence:

QUASH (Prosecution): Amend
Court order sustaining motion Arraignment
information if possible
General Rule: Court may order that another
complaint or information be filed. [Rule 117, Sec. 5] Note: The remedy for an order denying a MTQ is to
go to trial, without prejudice to reiterating the special
Exception: If MTQ was based on the following: defenses invoked in their MTQ. [Serana v.
Criminal action or liability has been extinguished
Sandiganbayan (2008)] However, if the court in
Double jeopardy denying the motion to quash acts without or in excess
of jurisdiction or with grave abuse of discretion, then
General Rule: If in custody, the accused shall certiorari or prohibition lies. [Lazarte v.
not be discharged unless admitted to bail. [Rule Sandiganbayan; Javier v. Sandiganbayan (2009)]
117, Sec. 5] The order must state either release
of the accused or cancellation of his bond. EXCEPTION TO THE RULE THAT
SUSTAINING THE MOTION IS NOT A BAR TO
Exception: When there is no order sustaining the ANOTHER PROSECUTION (BAR 1994)
motion is made OR if there is one, no new General Rule: A MTQ will not be a bar to another
information is filed within the time specified in prosecution for the same offense. [Rule 117, Sec. 6]
the order or within such further time as the court
may allow for good cause. Exception: If the ground for the quashal is either:
The criminal action or liability has been
Exception to the exception: If he is in custody for extinguished; OR
another charge. The accused has been previously convicted, or
in jeopardy of being convicted, or acquitted of
Remedies of the prosecution the offense charged.
General Rule: To amend the information to
correct the defects if the TC makes the order, DOUBLE JEOPARDY
and thereafter prosecute on the basis of the The right against double jeopardy prohibits the
amended information. [Rule 117, Sec. 4] prosecution for a crime of which he has been
previously convicted or acquitted [Caes v. IAC,
Exception: Prosecution is precluded where the 179 SCRA 54]
ground for quashal would bar another
prosecution for the same offense. RULE OF DOUBLE JEOPARDY

Prosecution may appeal from the order of

quashal to the appellate court.

If the information was quashed because it did

not allege the elements of the offense, but the
facts so alleged constitute another offense under
a specific statute, the prosecution may file a
complaint for such specific offense where
dismissal is made prior to arraignment and on
MTQ. [People v. Purisima (1978)]

Order denying MTQ Order granting MTQ

Interlocutory Final Order

Not appealable absent a Immediately appealable
showing of GAD. If there
but subject to rules on
is GAD, then file petition
double jeopardy
for certiorari
Does not dispose of the Disposes of the case upon
case upon its merits its merits
Proper remedy: appeal Proper remedy: appeal
after the trial the order
When a person is charged with an offense and the
case is terminated either by acquittal or conviction or in
any other manner without the express consent of the
accused, the latter cannot again be charged with the
same or identical offense. [Rule 117, Sec. 3(i)]
KINDS OF DOUBLE JEOPARDY [Art III, Sec. 21, Consti]
No person shall be put twice in jeopardy for the
SAME OFFENSE.
When an act punished by a law and an ordinance,
conviction or acquittal under either shall be a bar to
another prosecution for the SAME ACT.
PAGE 183
SAME OFFENSE
The offenses are penalized either by different
sections of the same law or by different statutes.
Must examine the essential elements of each:
Test: WON evidence that proves one offense would
likewise prove the other. [People v. Ramos (1961)]
It is not necessary to have absolute identity.
[People v. Relova (1987)]
UP COLLEGE OF LAW CRIMINAL PROCEDURE
SAME ACT
An offense penalized by ordinance is, by definition,
different from an offense penalized under a statute.
Hence, they would never constitute double jeopardy.
However, the second sentence of the constitutional
protection was precisely intended to extend to
situations not covered by the first sentence. Although
the prior offense charged under an ordinance be
different from the offense charged under a national
statute, the constitutional protection is available
provided that both arise from the same act or set of
acts. [People v. Relova (1987)]
Liability is produced both under an ordinance
and a national statute.
REQUISITES TO SUCCESSFULLY INVOKE DOUBLE JEOPARDY
A first jeopardy must have attached;
The first jeopardy must have been validly
terminated; and
The second jeopardy must be for the same offense
OR the second offense necessarily includes or
is necessarily included in the offense charged in
the first information, or is an attempt to commit
the same or a frustration thereof [People v.
Espinosa, 409 SCRA 256]
REQUISITES FOR FIRST JEOPARDY TO ATTACH
The accused has been convicted/acquitted, OR the
case against him was dismissed/terminated
without his express consent;
That the conviction, acquittal or dismissal was
made by the court with competent jurisdiction;
There is a valid complaint or information or other
formal charge is sufficient in form and
substance to sustain conviction;
The accused pleaded to the charge. [Riano, citing
several cases People v. Honrales (2010)]
Exception: A dictated, coerced and scripted verdict
of acquittal is a void judgment. It neither binds nor
bars anyone. [Galman v. Sandiganbayan (1986)]
WITHOUT EXPRESS CONSENT
It refers only to dismissal or termination of the
case. It does NOT refer to the conviction or
acquittal. [People v. Labatete (1960)]
If consent is not express, dismissal will be
regarded as final i.e. with prejudice to refilling.
[Caes v. IAC (1989)]
Exception: Dismissal has the effect of acquittal even
with the consent of the accused when predicated on
insufficiency of the prosecutions evidence or (2)
denial of the right to a speedy trial. [Alamario v.
CA (2001)]
PAGE 184
BAR OPERATIONS COMMISSION
DISMISSAL = ACQUITTAL
Demurrer to evidence
Dismissal due to violation of right to speedy trial
(even if dismissal was upon motion of the
accused or with his express consent)
DISMISSAL VS. ACQUITTAL
Dismissal Acquittal
Does not decide the case Always based on the
on the merits. Does not merits. Defendants guilt
determine innocence or was not proven beyond
guilt reasonable doubt.
Double jeopardy will not Double jeopardy always
always attach attaches
Tests for determining whether the two offenses
are identical: There is IDENTITY between the
two offenses not only when the second offense
is exactly the same as the first, but also when
the second offense is an attempt to or frustration
of or is necessarily included in the offense
charged in the first information.
Exception to the Identity Rule:
The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge.
The facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complaint or information.
The plea of guilty to the lesser offense was made
without the consent of the prosecutor and of the
offended party EXCEPT when offended party
failed to appear during such arraignment.
PROVISIONAL DISMISSAL (BAR 2003) [SEC.
8, RULE 117]
DEFINITION
A case is dismissed without prejudice to its
being refiled or revived.
Rule: Cases are provisionally dismissed where
there has already been arraignment and the
accused consented to a provisional dismissal.
Grounds for provisional dismissal
Section 8 does not state the grounds for provisional
dismissal. However, according to the case of Los
Baos v. Pedro (2007), the delimitation of the grounds
available in a MTQ suggests that where the grounds
cited are those listed under Section 3, then the
appropriate remedy is to file a motion to quash,
UP COLLEGE OF LAW
and not any other remedy. Conversely, where a
ground does not appear under Section 3, then a
motion to quash is not a proper remedy. A
motion for provisional dismissal may then apply
if the conditions required by Section 8 obtain.
WHEN DISMISSAL BECOMES PERMANENT: TIME BAR RULE
One year after issuance of the order without the
case having been revived for offenses
punishable: [Rule 117, Sec. 8]
By imprisonment not exceeding 6 yrs
By fine of any amount
By both
2 yrs after issuance of the order without the case
having been revived for offenses punishable by
imprisonment of more than 6 yrs.
The State may revive beyond the periods provided
there is a justifiable necessity for the delay.
The Court is not mandated to apply Sec. 8
retroactively simply because it is favorable to
the accused. The time-bar under the new rule
was fixed for the benefit of the State and the
accused, and not for the accused only.
[People v. Lacson (2003)]
Conditions sine qua non to the application of
the time-bar rule:
The prosecution with the express conformity of
the accused OR the accused moves for the
provisional (sin perjucio) dismissal of the case;
OR both the prosecution and the accused move
for a provisional dismissal of the case;
The offended party is notified of the motion for
the provisional dismissal of the case
The court issues an order granting the motion
and dismissing the case provisionally;
The public prosecutor is served with a copy of
the order of provisional dismissal of the case.
[People v. Lacson (2003)]
HOW TO REVIVE A CASE:
Refiling of the information
Filing of a new information for the same offense
or one necessarily included in the original
offense charged.
REQUISITE PROCEDURE [RULE 117, SEC. 8]
Motion can be made:
By the prosecution, with the express conformity of
the accused
By the accused
By both
Requisites for Provisional Dismissal (See
Conditions sine qua non for time-bar rule):
Consent of the prosecutor
Consent of the accused
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
(3) Notice to the offended party
Pre-trial
JUDICIAL AFFIDAVIT RULE (A.M. No. 12-8-8-SC):
Sec. 9: Application of rule to criminal actions.
This rule shall apply to all criminal actions:
Where the maximum of the imposable penalty
does not exceed six years;
Where the accused agrees to the use of
judicial affidavits, irrespective of the
penalty involved; or
With respect to the civil aspect of the actions,
whatever the penalties involved are.
The prosecution shall submit the judicial affidavits of
its witnesses not later than five days before the
pre-trial, serving copies if the same upon the
accused. The complainant or public prosecutor
shall attach to the affidavits such documentary or
object evidence as he may have, marking them as
Exhibits A, B, C, and so on. No further judicial
affidavit, documentary, or object evidence shall be
admitted at the trial.
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.
MATTERS TO BE CONSIDERED DURING
PRE-TRIAL
Section 1. Pre-trial; mandatory in criminal
cases Pre-trial is MANDATORY in all criminal
cases. Its main objective is to achieve an
expeditious resolution of the case.
COVERAGE [RULE 118, SEC. 1]
The court shall order pre-trial in ALL criminal
cases cognizable by the Sandiganbayan, RTC
and MTC or MTCC or MCTC or MeTC.
PERIOD [RULE 118, SEC. 1]
General Rule: After arraignment and within 30
days from the time the court acquires jurisdiction
over the person of the accused.
PAGE 185
UP COLLEGE OF LAW CRIMINAL PROCEDURE
Exception: If a shorter period is provided by
special or SC circulars.
THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES
[RULE 118, SEC. 1]
Plea bargaining
Stipulation of facts
Marking for identification of evidence
Waiver of objections to admissibility of evidence
Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial)
Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case
ROLE OF THE JUDGE
During the pre-trial, the judge shall be the one to ask
questions on issues raised therein and all questions
must be directed to him to avoid hostilities between
the parties. [SC AM 03-1-09-SC]
STIPULATION OF FACTS
This is no longer prohibited in criminal cases.
[People vs Hernandez (1996)]
However, in a case of rape with the allegation that
victim is below 12 yrs of age which qualifies said
crime and increases its penalty to death, nothing short
of proof beyond reasonable doubt of every fact
necessary to constitute the elements of the crime
must be established. Circumstances that qualify a
crime and increases its penalty to death cannot be the
subject of stipulation. [People vs Sitao (2002)]
MARKING FOR IDENTIFICATION OF THE EVIDENCE OF
PARTIES
Proffer of exhibits is not allowed. It ought to be
done at the time a party closes the presentation
of evidence.
WHAT THE COURT SHOULD DO WHEN
PROSECUTION AND OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE ACCUSED
PLEA BARGAINING
It is the process in criminal process whereby the 1)
accused, 2) offended party, and the 3) prosecution
work out a mutually satisfactory disposition of the
case subject to court approval. [See also DOJ
Circular No. 35 (June 31, 1990), as amended by
Circular No. 55 for the guidelines on plea
bargaining as well as note on Rule 116]
It usually involves the defendants pleading guilty to a
lesser offense or to one or some of the counts of a
PAGE 186
BAR OPERATIONS COMMISSION
multi-count indictment in return for a lighter
sentence than that for the graver charge.
[People v. Mamarion (2003)]
The conviction of the accused of the lesser offense
precludes the filing and prosecution of the offense
originally charged in the information, EXCEPT when
the plea of guilty to a lesser offense is without the
consent of the offended party and the prosecutor.
[People v. De Luna (1989); Rule 117, Sec. 7 (c)]
Rule 116, Section 2: Plea of guilty to a lesser
offense. At arraignment, the accused, with the
consent of the offended party and the prosecutor,
may be allowed by the trial court to plead guilty to
a lesser offense which is necessarily included in
the offense charged. After arraignment but before
trial, the accused may still be allowed to plead
guilty to said lesser offense after withdrawing his
plea of not guilty. No amendment of the complaint
or information is necessary.
EFFECT WHEN THE PROSECUTION AND THE OFFENDED
PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED
The Court shall:
Issue an order which contains the plea
bargaining arrived at;
Proceed to receive evidence on the civil aspect
of the case; and
Render and promulgate judgment of conviction,
including the civil liability or damages duly
established by the evidence [SC AM 03-1-09-SC]
PRE-TRIAL AGREEMENT
FORM
General Rule: Court approval is required.
Exception: Agreements not covering matters referred
to in Rule 118, Sec. 1. [SC A.M. No. 03-1-09-SC]
REQUIRED FORM OF PRE-TRIAL AGREEMENT
Must be in writing
Signed by the accused
Signed by his counsel
If this is not followed, the admissions cannot be
used against the accused (i.e. inadmissible in
evidence). The constitutional right to present
evidence is waived expressly.
EFFECT
The stipulations become binding on the parties
who made them. They become judicial admissions
of the fact or facts stipulated. (2008 Bar)
UP COLLEGE OF LAW CRIMINAL PROCEDURE
Even if placed at a disadvantageous position, a party
may not be allowed to rescind them unilaterally; he
must assume the consequences of the disadvantage.
[Bayas vs Sandiganbayan (2002)]
NON-APPEARANCE DURING PRE-TRIAL
[RULE 118, SEC. 3]
The court may impose proper sanctions or
penalties (reprimand, fine or imprisonment), if
counsel for the accused or the prosecutor:
does not appear at the pre-trial conference; and
does not offer an acceptable excuse,
Rationale: to enforce the mandatory requirement
of pre-trial in criminal cases. [Rule 118, Sec. 1]
Note: The accused is not included because his
constitutional right to remain silent may be violated.
The accused is not required to attend (unless
ordered by the court) and is merely required to sign
the written agreement arrived at in the pre-trial
conference, if he agrees to the contents of such.
Complainant is also not required to appear
during pre-trial. It is the prosecutor who is
required to appear at the pre-trial.
PRE-TRIAL ORDER [RULE 118, SEC. 4]
ISSUANCE
Issued by the court
Within 10 days after the pre-trial. [SC AM 03-1-
09-SC]
Judgment of acquittal based on pre-trial despite
disputed documents and issues of fact
amounts to grave error and renders the
judgment void. [People vs Santiago (1989)]
CONTENTS
Actions taken;
Facts stipulated;
Evidence marked;
Admissions made;
The number of witnesses to be presented; and
The schedule of trial.
Note: Letters (d) to (f) are added by SC AM 03-1-
09-SC to the requirements under Rule 118, Sec. 4
EFFECT
Binds the Parties
The procedure is substantially the same in
civil cases, except that any modification of
the pre-trial order in civil cases must be made
before the trial. No such limitation is provided
for in criminal cases. (1997 Bar)
PAGE 187
BAR OPERATIONS COMMISSION
Limits the trial to those matters not disposed of
Control the course of the action during trial
Exception: If modified by the court to prevent
manifest injustice.
REFERRAL OF SOME CASES FOR COURT
ANNEXED MEDIATION AND JUDICIAL
DIPUTE RESOLUTION
A.M. No. 03-1-09-SC
RE: PROPOSED RULE ON GUIDELINES TO
BE OBSERVED BY TRIAL COURT JUDGES
AND CLERKS OF COURT IN THE CONDUCT
OF PRE- TRIAL AND USE OF DEPOSITION-
DISCOVERY MEASURES RESOLUTION
CRIMINAL CASES
After the arraignment, the court shall forthwith set
the pre-trial conference within thirty days from the
date of arraignment, and issue an order:
Requiring the private offended party to appear
thereat for purposes of plea-bargaining except
for violations of the Comprehensive
Dangerous Drugs Act of 2002, and for other
matters requiring his presence;
Referring the case to the Branch COC, if
warranted, for a preliminary conference to
be set at least three days prior to the pre-
trial to mark the documents or exhibits to be
presented by the parties and copies thereof
to be attached to the records after
comparison and to consider other matters as
may aid in its prompt disposition; and
Informing the parties that no evidence shall be
allowed to be presented and offered during
the trial other than those identified and
marked during the pre-trial except when
allowed by the court for good cause shown.
In mediatable cases, the judge shall refer
the parties and their counsel to the PMC unit
for purposes of mediation if available.
Trial
INSTANCES WHEN PRESENCE OF
ACCUSED IS REQUIRED BY LAW
PRESENCE IS MANDATORY:
During trial, for purposes of identification;
At arraignment; [Rule 116, Sec. 1(b)]
At the promulgation of judgment;
Exception: If the conviction is for a light
offense. [Rule 120, Sec. 6]
UP COLLEGE OF LAW
REQUISITES BEFORE TRIAL CAN BE
SUSPENDED ON ACCOUNT OF ABSENCE
OF WITNESS
The witness must be either absent or unavailable
The absent or unavailable witness must be
essential [Riano]
ABSENCE OR UNAVAILABILITY OF AN ESSENTIAL WITNESS
Absent means that his whereabouts are unknown
or cannot be determined by due diligence.
Unavailable means that his whereabouts are
known but presence for trial cannot be obtained
by due diligence.
Essential witness: indispensible, necessary, or
important in the highest degree [Blacks Law
Dictionary]
The period of delay resulting from the absence
or unavailability of an essential witness shall be
excluded in computing the time within which trial
must commence. [Rule 119, Sec. 3]
However, in any case in which:
Counsel for the accused, the public prosecution or
public attorney,
KNOWINGLY allows the case to be set for trial
WITHOUT disclosing the fact that a
necessary witness would be unavailable for
trial OR otherwise willfully fails to proceed to
trial without justification consistent with the
provisions of this Act,
The court may, without prejudice to any appropriate
criminal and/or administrative charges to be
instituted by the proper party against the erring
counsel if and when warranted, punish any such
counsel or attorney. (Speedy Trial Act)
CONDITIONAL EXAMINATION [RULE 119, SEC. 15]
When it satisfactorily appears that a witness for
the prosecution is too sick or infirm to appear at
the trial as directed by the court, or has to leave
the Philippines with no definite date of returning,
he may forthwith be conditionally examined
before the court where the case is pending.
Such examination, in the presence of the
accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same
manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination after notice shall be considered a
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
waiver. The statement taken may be admitted in
behalf of or against the accused.
TRIAL IN ABSENTIA (1998 BAR)
REQUISITES
Accused has been arraigned;
He was duly notified of trial;
His failure to appear is unjustified.
Purpose: To speed up disposition of cases.
General rule: The right to be present at ones
trial may be waived.
Exceptions: At certain stages: [Lavides v. CA (2000)]
Arraignment and plea
Promulgation of sentence, unless for light offense
During trial whenever necessary for ID purposes
Exception to the ID purposes exception: If
the accused unqualifiedly admits in open
court after arraignment that he is the person
named as the defendant in the case on trial.
REMEDY WHEN ACCUSED IS NOT BROUGHT
TO TRIAL WITHIN THE PRESCRIBED PERIOD
EFFECT OF DELAY [RULE 119, SEC. 9]
On motion of the accused, the information may
be dismissed on the ground of denial of his right
to speedy trial. (2007 Bar)
Factors to consider: (a) duration of the delay; (b)
reason therefor; (c) assertion of the right or failure
to assert it; and (d) prejudice caused by such
delay. [Mari and People v. Hon. Gonzales (2011)]
Must be raised prior to trial; otherwise, the right
to dismiss is considered waived under Rule 119,
section 9.
Burden of Proof
The accused has the burden of proving the
ground of denial of right to speedy trial for
the motion.
The prosecution has the burden of going forward
with the evidence to establish the exclusion
of time under Rule 119, Sec. 3.
Subject to the rules on double jeopardy. Hence, if with
prejudice, the case cannot be revived anymore.
REQUISITES FOR DISCHARGE OF ACCUSED
TO BECOME A STATE WITNESS
DISCHARGE OF A CO-ACCUSED
General rule: It is the duty of the prosecutor to include
all the accused in the complaint/information.
PAGE 188
UP COLLEGE OF LAW CRIMINAL PROCEDURE
Exception: Prosecutor may ask the court to discharge
one of them after complying with the conditions
prescribed by law. [Rule 119, Sec. 17] This applies only
when the information has already been filed in court.
REQUISITES [RULE 119, SEC. 17]
Two or more persons are jointly charged with the
commission of any offense.
Upon motion of the prosecution before resting its
case
Petition for discharge is filed before the defense has
offered its evidence. [People v. Anion (1988)]
Hearing in support of the discharge where the
prosecution is to present evidence and the sworn
statement of each proposed state witness.
The court is satisfied of the following:
Absolute necessity for the testimony of the
accused whose discharge is requested;
He alone has the knowledge of the crime,
and not when his testimony would simply
corroborate or strengthen the evidence in
the hands of the prosecution. [Flores v.
Sandiganbayan (1983)]
There is no other direct evidence available for
the proper prosecution of the offense,
except the testimony of the said accused;
The testimony can be substantially
corroborated in its material points;
The accused does not appear to be the most
guilty;
The accused has not, at any time, been
convicted of any offense involving moral
turpitude
Note: The evidence adduced in support of the
discharge shall automatically form part of the trial.
EFFECTS OF DISCHARGE OF ACCUSED AS
STATE WITNESS
EFFECT OF DISCHARGE
General rule: The order of discharge shall: [Rule
119, Sec. 18]
Amount to an acquittal of the discharged
accused;
Bar future prosecutions for the same offense.
Exception: If the accused fails/refuses to testify
against his co-accused in accordance with his sworn
statement constituting the basis for his discharge.
Any error in asking for and in granting the
discharge cannot deprive the discharged of the
acquittal and the constitutional guaranty against
double jeopardy. [People v. Verceles (2002)]
PAGE 189
BAR OPERATIONS COMMISSION
Conviction of the accused against whom
discharged state witness testified is NOT required.
Subsequent amendment of the information does
not affect discharge. [People v. Taruc (1962)]
DEMURRER TO EVIDENCE (1998, 2001, 2004
BAR)
DEFINITION
Objection by one of the parties to the effect that the
evidence which his adversary produced is insufficient
in point of law, whether true or not, to make out a
case or sustain the issue. [Gutib v. CA (1999)]
General Rule: An order granting the accuseds
demurrer to evidence amounts to an acquittal.
Exception: When there is a finding that there
was grave abuse of discretion on the part of the
trial court in dismissing a criminal case by
granting the accuseds demurrer to evidence.
[Hon. Mupas v. People (2011)]
The order granting the demurrer is not appealable
but may be reviewed via certiorari (Rule 65).
[People v. Sandiganbayan, Marcos, et al. (2012)]
Purpose: to prevent the filing of demurrer based
on frivolous and flimsy grounds.
HOW INITIATED [RULE 119, SEC. 23]
By the court motu proprio, after giving the
prosecution the opportunity to be heard;
Upon demurrer to evidence filed by the accused:
With leave of court;
Without leave of court.
MOTION FOR LEAVE TO FILE DEMURRER [RULE 119, SEC.
23]
It must specifically state its grounds.
It must be filed within a non-extendible period of 5
days after the prosecution rests (i.e. after the court
shall have ruled on the prosecutions formal offer).
Prosecution may then oppose within a non-
extendible period of 5 days from receipt.
If leave of court is granted, the demurrer must
be filed within a non-extendible period of 10
days from notice. Prosecution may oppose
within a similar period.
EFFECT OF GRANTING DEMURRER
The court dismisses the action on the ground of
insufficiency of evidence. [Rule 119, Sec. 23]
UP COLLEGE OF LAW CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION

Sufficient evidence for frustrating a demurrer is

evidence that proves: [Gutib v. CA (1999)] Judgment
Commission; and
Precise degree of participation. REQUISITES OF A JUDGMENT

EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE
DEMURRER
Accused should choose to insist on filing demurrer
even without leave (see consequences below)
OR to present evidence for his defense
Order denying the motion for leave or order
denying the demurrer itself, is not
reviewable by appeal or by certiorari before
judgment. [Rule 119, Sec. 23]
It is interlocutory, but it may be assigned as error
and reviewed in the appeal that may be
taken from the decision on the merits [Cruz
v. People (1999)]
RIGHT OF THE ACCUSED TO PRESENT EVIDENCE
AFTER DEMURRER IS DENIED [RULE 119, SEC. 23]
FORM [RULE 120, SEC. 1]
(a) Written in official language.
If given verbally, it is incomplete. [People v.
Catolico (1972)]
Personally and directly prepared by the judge.
Signed by the judge.
The judge who presided over the entire trial
would be in a better position to ascertain the
truth or falsity of the testimonies.
But the judge who only took over can render a
valid decision by relying on the transcript. It does
not violate due process. [People v. Badon (1999)]

Contains clearly and distinctly a statement of

Filed with Leave of Court Filed without Leave of Court facts proved and the law upon which
May adduce evidence Waives the right to present judgment is based.
in his defense evidence
There is sufficient compliance if the decision
Purpose: To determine Submits the case for summarizes the evidence of both parties,
WON demurrer was judgment on the basis of the synthesizes the findings and concisely
filed merely to stall the evidence for the prosecution narrates how the offense was committed.
proceedings
Implied leave of court If there are 2 or more accused Failure on the part of the TC to make a
is no longer sufficient and only one presents a finding of fact is a revocable error.
and prevents accused demurrer without leave of
from presenting court, JUDGE WHO PENNED THE DECISION NEED NOT BE
evidence [e.g. accused THE ONE WHO HEARD THE CASE
files motion with General rule: The court may The fact alone that the judge who heard the evidence
reservationto present defer resolution until decision was not the one who rendered the judgment but
evidence in case is rendered on the other merely relied on the record of the case does not
motion is denied] accused render his judgment erroneous or irregular, especially
Exception: If it can be shown when the evidence on record is sufficient to support
its conclusion. [People v. Alfredo (2010)]
from the decision that the
resolution on the demurrer CONTENTS OF JUDGMENT
was rendered not only on the
basis of the prosecutions CONVICTION [SEC. 2, RULE 119]
evidence but also on the The judgment of conviction shall state:
evidence adduced by his co- The legal qualification of the offense constituted by
accused the acts committed by the accused and the
aggravating/mitigating circumstances which
attended its commission.
The participation of the accused in the offense,
whether as principal, accomplice or
accessory after the fact.
The penalty imposed upon the accused.
The penalty should not be imposed in the
alternative. There should be no doubt as to the

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UP COLLEGE OF LAW
offense committed and the penalty for it.
The civil liability or damages caused by his
wrongful act/omission to be recovered from the
accused by the offended party, if there is any,
unless the enforcement of the civil liability by a
separate civil action has been reserved/waived.
Proof Beyond Reasonable Doubt
Degree of proof which produces conviction in an
unprejudiced mind. [People v. Bacalzo (1991)]
Judgment for two or more offenses [Sec. 3,
Rule 120] General Rule: Complaint/information
must charge only one offense [Sec. 13, Rule 110]
Exception: Cases in which existing laws
prescribe a single punishment for various
offenses [Sec. 13, Rule 110]
General Rule: Duplicitous information is subject
to a motion to quash [Sec. 3(f), Rule 117]
Exception: Defect is waived when accused fails
to move for quashal.
THUS, where the accused fails to object to 2 or
more offenses charged in a single
information/complaint before trial, the court may:
Convict him of as many offenses as are charged
and proved; and
Exception: One of the offenses has been a
necessary means for committing the other
offense and where both have been the result
of a single act.
Impose on him the penalty for each offense,
setting out separately the findings of fact and
law in each offense.
Exception: Maximum duration of offense: Follow
the three-fold rule on the service of penalty.
Judgment in case of variance between
allegation and proof [Sec. 4, Rule 120]
General rule: The defendant can be convicted
only of the crime with which he is charged.
Rationale: He has the right to be informed of the
nature of the offense with which he is charged
before he is put on trial. [People v. Guevarra]
However, minor variance between the
information and the evidence:
Does not alter the nature of the offense;
Does not determine or qualify the crime or
penalty;
Cannot be ground for acquittal.
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
Exception: He can be convicted of an offense
proved provided it is included in the charge, or of
an offense charged which is included in that
which is proved. [Rule 120, Sec. 4]
The accused can be convicted of an offense
only when it is both charged and proven.
The mere fact that the evidence presented would
indicate that a lesser offense outside the courts
jurisdiction was committed does not deprive the
court of its jurisdiction, which had vested in it
under the allegations in the information.
Exception to the exception: Where there are facts
that supervened after the filing of the information
which change the nature of the offense.
When an offense includes or is included in
another [Rule 120, Sec. 5]
The offense charged necessarily includes the offense
proved when some of the essential
elements/ingredients of the former, as alleged in
the complaint/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.
Effect
The accused shall be convicted of: [Rule 120, Sec. 4]
The offense proved which is included in the
offense charged; or
The offense charged which is included in the
offense proved
The right to be informed of the charges has not
been violated because where an accused is
charged with a specific crime, he is duly
informed also of lesser crimes/offenses included
therein. [People v. Villamar (1998)]
Where a complex crime is charged and the
evidence fails to support the charge as to one of
the component offenses, the accused can be
convicted of the one which is proven.
State liability for unjust conviction
The DOJ Board of Claims is authorized to
receive/evaluate/process/investigate claims of
victims of unjust imprisonment/detention and
victims of violent crimes. [RA 7309]
Requirements for compensation:
Unjust accusation;
Unjust conviction; and
It is the same as knowingly rendering an unjust
judgment - It is contrary to law or is not
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UP COLLEGE OF LAW
supported by the evidence and the same is
made with conscious and deliberate intent to
do an injustice. [Art. 204, RPC]
(3) Unjust imprisonment.
ACQUITTAL
Definition
A finding of not guilty based on the merits, either:
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 and upon motion of the
accused on the ground that the evidence fails
to show beyond doubt that accused is guilty.
Reasonable Doubt
Doubt engendered by an investigation of the whole
proof and an inability, after such investigation, to let
the mind rest upon the certainty of guilt.
Acquittal [Rule 120] Dismissal [Rule 117]
Terminates the case
Decision on the merits Not on the merits but no
based on a finding that finding that accused is not
the accused is not guilty guilty
The judgment shall state whether:
The evidence of the prosecution absolutely
failed to prove the guilt of the accused; or
It merely failed to prove his guilt beyond
reasonable doubt.
In either case, the judgment shall determine if
the act or omission from which the civil liability
might arise did not exist [Sec. 2, Rule 120]
Number 2 does not extinguish the civil liability
arising from his acts, since the civil liability arose
not from a crime but from the damage caused by
such acts, which can be proven by a lower
quantum of evidence.
General rule: The court has authority to express
disapproval of certain acts even if judgment is
for acquittal.
Exception: The court is not permitted to censure
the accused in a judgment for acquittal no
matter how light, a censure is still a punishment.
Acquittal based on reasonable ground does not
bar a separate civil action based on quasi-delict.
[Lontoc v. MD Transit (1988)]
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
The Court may hold accused civilly liable even
when it acquits him. Acquittal extinguishes civil
liability only when the judgment includes a
declaration that the facts from which the civil
liability might arise did not exist.
The court may nonetheless hold the accused civilly
liable in favor of the offended party, or it may
deny the award of civil damages expressly or
impliedly by being silent on the matter.
The losing party may appeal the ruling on the civil
liability, as in any other ordinary appeal, in his
name and not in the name of the People
The Judge acquitting an accused cannot punish
him at the same time.
PROMULGATION OF JUDGMENT;
INSTANCES OF PROMULGATION OF
JUDGMENT IN ABSENTIA (1997 BAR)
PROMULGATION
An official proclamation or announcement of a
judgment or order.
Requisites for the valid promulgation of a
court decision:
There must be a judge or judges legally
appointed or elected and actually acting
either de jure or de facto, and
The said judgment must be duly signed and
promulgated during the incumbency of
the judge who signed it. [Miguel v
Municipal Trial Court (1986)]
Judgment/sentence does not become a
judgment/sentence in law until it is:
Read and announced to the defendant; or
Has become a part of the record of the court.
[US v. CFI of Manila, 24 Phil 321]
Where there is no promulgation of judgment, no
right to appeal accrues.
NOTICE FOR PROMULGATION
Clerk of Court gives notice to accused personally
or through bondsman or warden and counsel.
If the accused jumps bail or escapes from prison
and was tried in absentia, notice will be served
in last known address. [Rule 120, Sec. 6]
Sin perjuicio judgment
A judgment without a statement of the facts in
support of its conclusion to be later supplemented
by the final judgment. [Dizon v. Lopez (1997)]
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UP COLLEGE OF LAW CRIMINAL PROCEDURE
Merely reading the dispositive portion of the
decision is not sufficient.
Judgment must state the facts and the law on
which it is based.
While SC has expressed approval of the
practice of some judges withholding the
dispositive portion from their opinions until the
very last moment of promulgation in order to
prevent leakage, such refers to the preparation
of the decision and not to promulgation.
There is no more reason to keep it a secret at
the stage of promulgation.
Promulgation where judge is absent [Rule
120, Sec. 6]
The judgment may be promulgated by the
clerk of court when the judge is absent or
outside the province or city.
Presence of accused required; exception
[Rule 120, Sec. 6]
General rule: Presence of the accused is mandatory.
Exception: Convictions for light offenses.
Conviction for light He may appear through
offense counsel/representative
Promulgation in To prevent subversion of
judicial process and enable
absentia
enforcement of civil liability
No appeal is necessary;
judgment is final and
executory.
Verdict of acquittal Note the old rule that
presence of the accused
during promulgation of
judgment is required only in
case of conviction
If the judgment is for conviction and the failure of the
accused to appear was without justifiable cause, he
shall lose the remedies available in the ROC against
the judgment and the court shall order his arrest.
However, within 15 days from promulgation of
judgment, he may surrender and file a motion for
leave of court to avail of these remedies. He
shall state the reasons for his absence.
If he proves his absence was for a justifiable
cause, shall be allowed to avail of the remedies
within 15 days from notice. [Sec. 6, Rule 120;
People v. De Grano (2009)]
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Promulgation when accused is
confined/detained in another city
It will be done in the RTC who has jurisdiction over
the place of confinement. In this case, the court
promulgating the judgment shall have authority to
accept notice of appeal and to approve the bail
bond pending appeal. [Sec. 6, Rule 120]
Failure to appear at the scheduled date of
promulgation
Promulgation is made by recording the judgment
in the criminal docket and serving a copy at the
accuseds last known address or through
counsel. [Sec. 6, Rule 120]
Promulgation date where judge no longer a
judge is void.
If at the time of the promulgation, the judge
penning the decision has ceased being a judge
of the court, the decision would not be an act of
the court. [People v. Dimalanta]
Promulgation by a succeeding judge produces
no legal effect since it cannot restore validity to a
document already void.
WHEN DOES JUDGMENT BECOME FINAL
[RULE 120, SEC. 7]
JUDGMENT BECOMES FINAL:
After the lapse of the period for perfecting an
appeal;
When the sentence has been partially/totally
satisfied or served;
The accused has expressly waived in writing his
right to appeal, or
When the accused applies for probation, and
thereby waives right to appeal.
Judgment also becomes final when judgment is an
acquittal. [People v. Sandiganbayan (2010)]
Exception to finality of judgment if of acquittal:
Cases where death penalty was imposed
automatic review; judgment does not become final
after the promulgation and by the TCs issuance of
a commitment order. [Sec, 10, Rule 122]
Note: Before the judgment becomes final, the
TC has plenary power to make, either on motion
or motu proprio, such amendment or alterations
as it may deem best, within the frame of law, to
promote the ends of justice.
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After finality, the TC is divested of authority to REQUISITES

amend/alter the judgment, except to correct
clerical errors.
New trial or Reconsideration
GROUNDS FOR NEW TRIAL [RULE 121, SEC. 2]
That errors of law or irregularities prejudicial to
the substantial rights of the accused have been
committed during the trial;
That the evidence: [Jose v. CA (1997)]
Was discovered after the trial;
Could not have been discovered and produced
at the trial even with the exercise of
reasonable diligence. [US v. Pico (1982)]
Burden of proving this is on the accused. [US v.
Torrente (1922)]
Is material, not merely
cumulative/corroborative/impeaching; and
Is of such weight that it would probably change
the judgment if admitted.
It must be of weighty influence and will affect
the result of the trial. [People v. Alfaro (2003)]

General rule: Error of the defense counsel in the EXCEPTIONS

conduct of the trial is neither an error of law nor
an irregularity.
Exception: Acquittal would in all probability have
followed the introduction of certain testimony which
was not submitted at the trial under improper or
injudicious advice of incompetent counsel.
Irregularities must be with such seriousness as
to affect prejudicially the substantial rights of the
accused.
That new and material evidence has been
discovered which the accused could not with
reasonable diligence have discovered and
produced at the trial and which if introduced and
admitted would probably change the judgment.
[Estino v. People (2007)]. The determinative test
is the presence of due or reasonable diligence to
locate the thing to be used as evidence in the
trial. [Briones v. People (2009)]
Interest of justice as gauge for
introduction of new evidence:
In People v. Almendras (2003), the court ruled that
a motion for a new trial may be granted on a
ground not specifically provided in the rules,
provided that it is sought in the interest of justice.
In that case, the relief of a new trial was granted to
a client who has suffered by reason of his/her
counsels gross mistake and negligence.
When there is variance in 2 reports:
In People v. del Mundo (1996), the court allowed
the presentation in a new trial of a police report,
not new, and which could have been discovered
with due diligence, because the evidence
contained in such was at such variance with the
health officers report at trial, that its contents
raised doubts to the guilt of the accused.
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION [RULE 121, SEC. 6]

GROUNDS FOR RECONSIDERATION IN ALL CASES:

Errors of law OR fact in the judgment, which
requires no further proceedings. [Rule 121, Sec. 3]
REQUISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON GROUND OF NEWLY
DISCOVERED EVIDENCE
The original judgment set aside or vacated;
A new judgment is rendered accordingly.
Specific effects when granted upon different
grounds:

Ground Effect The Court may:

Errors of law or irregularities All proceedings and evidence affected shall be Allow introduction of additional
committed during the trial set aside and taken anew evidence in the interest of justice
If error or irregularity goes into the jurisdiction,

the entire proceeding is void and must be set

aside
Newly-discovered evidence Evidence already adduced shall stand and the Allow introduction of other such
newly-discovered and such other evidence evidence in the interest of justice

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Ground Effect The Court may:

shall be taken and considered together with

the evidence already in the record

REMEDY AGAINST GAD IN GRANTING MNT/MFR Appeal For cases decided by

Certiorari or prohibition. Otherwise, the prosecution The SC RTC
may no longer have opportunity to question the (a) If it involves questions of law
order if accused is acquitted after a new trial is only
conducted (because there will be double jeopardy). (b) If it involves constitutionality or
[Luciano v. Estrella (1970)] validity of any
treaty/law/ordinance/EO/
APPLICATION OF NEYPES DOCTRINE IN regulation or the jurisdiction of
CRIMINAL CASES the inferior court
(c) In criminal cases involving
FRESH PERIOD TO APPEAL AFTER DENIAL OF MNT/MR offenses for which the penalty
imposed is death or life
Neypes Doctrine: The Court allows a fresh imprisonment
period of 15 days within which to file the notice f (d) Other offenses, which,
appeal in the RTC, counted from receipt of the although not so punished,
order dismissing a MNT or MR. arose out of the same
occurrence or which may have
Henceforth, this fresh period rule shall also apply to been committed by the
Rule 40 governing appeals from the Municipal Trial accused on the same occasion,
Courts to the Regional Trial Courts; Rule 42 on as that giving rise to the more
petitions for review from the Regional Trial Courts to serious offense
the Court of Appeals; Rule 43 on appeals from quasi- The SC CA or Sandiganbayan
judicial agencies to the Court of Appeals and Rule 45
governing appeals by certiorari to the Supreme Court. HOW APPEAL TAKEN
(Neypes v. CA, 2005) Note: The right to appeal is not a natural right
nor a part of due process but merely a statutory
privilege and may be exercised only in the
manner and in accordance with the provisions of
Appeal the law. [Estarija v. People (2009)]

EFFECT OF AN APPEAL WHO MAY APPEAL

An appeal in a criminal proceeding throws the General Rule: Any party may appeal from a
whole case open for review and it becomes the judgment or final order [Section 1, Rule 122]
duty of the appellate court to correct an error as Exceptions:
may be found in the appealed judgment, WON it Party may not appeal if the accused will be placed in
is made the subject of assignment of errors. double jeopardy by such action [Section 1, Rule
[People v. Calayca (1999)] 122]
If the judgment is for conviction and the accused fails
WHERE TO APPEAL [RULE 122, SEC. 2] to appear without justifiable cause, he would lose
Appeal For cases decided by the remedy to appeal [Sec. 6,Rule 120]
The RTC MTC/MeTC/MCTC
The RTC or MTC/MeTC/MCTC (if it is [Rule 122, Sec. 6 and 9]
Sandiganbayan government duty-related - i.e. filed
under EO 1, 2, 4 and 14-A) When appeal to be taken
The CA RTC (if it involves questions of fact Within 15 days from promulgation of the judgment
and of law) or from notice of the final order appealed from.

The period to appeal shall be suspended from

the time a MNT or MR is filed until notice of the
order overruling the motion has been served
upon the accused or his counsel.

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Cases governed by the Revised Rules on
Transmission of record to RTC
Within 5 days from perfection of the appeal, the
COC shall transmit the original record to the
appropriate RTC.
Notification of parties
Upon receipt of the complete record, TSN and
evidence of the case, the RTC COC shall notify
the parties of such fact.
Submission of memoranda/briefs
Within 15 days from receipt of said notice, the
parties may submit memoranda/briefs, or may
be required by the RTC to do so.
Decision
After submission of such memoranda/briefs or
upon the expiration of the period to file the
same, the RTC shall decide the case on the
basis of the entire record of the case and of
such memoranda/briefs as may have been filed.
[Rule 123, Sec. 1]
General rule: The procedure to be observed in
the MeTC/MTC/MCTC shall be the same as that
in the RTC.
Exceptions:
Where a particular provision applies only to either
of said courts;
Criminal cases governed by the Revised Rules
on Summary Procedure.
Offenses falling under the MTC/MCTCs Jurisdiction:
[Salcedo v. Nobles-Bans (1985)]
Notwithstanding the uniform procedure rule, if the
offense falls under the jurisdiction of the MTC/MCTC,
complaint/information may be filed directly with said
courts or with the City Prosecutors Office.
Offensesfalling under the MeTCs Jurisdiction:
[Salcedo v. Nobles-Bans (1985)]
In Metro Manila and other chartered cities,
criminal cases shall be commenced only by
information; thus, the complaint may be filed
only with the Office of the City Prosecutor
If the case is directly filed with the court, the
case should not be dismissed. The court should
just refer it to the City Prosecutor for the filing of
the corresponding information.
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Summary Procedure
PROCEDURE IN THE CA
Parties and title [Rule 124, Sec. 1]
In all criminal cases appealed to the CA:
APPELLANT The party appealing; APPELLEE
The party adverse to the appellant.
The title of the case shall remain as it was in
the court of origin (i.e. People v. John Doe).
Appointment of counsel de oficio [Rule 124, Sec. 2]
Brief for appellant [Rule 124, Sec. 3]
Appellant shall file 7 copies of his brief with
the clerk of court, accompanied by proof of
service of 2 copies on the appellee.
It shall be filed within 30 days from receipt by
the appellant (his counsel) of the CA clerk of
courts notice that the evidence is already
attached to the record.
Brief for appellee [Rule 124, Sec. 4]
Appellee shall file 7 copies of his brief with
the clerk of court, accompanied by proof of
service of 2 copies on the appellant.
It shall be filed within 30 days from receipt of
the appellants brief.
Reply to appelles brief [Rule 124, Sec. 4]
Appellant may (i.e. optional) file a reply brief
covering matters raised in the appellees brief
but not in the brief of the appellant.
It must be filed within 20 days from receipt of
the appellees brief.
Extension of time for filing briefs [Rule 124, Sec. 5]
General Rule: Extension of time for the filing
of briefs is not allowed.
Exception: for good and sufficient cause
It is sought through a motion for extension,
which must be filed before the expiration of
the time sought to be extended.
Court may grant as many extensions as may
be asked. [Gregorio v. CA (1976) ]
Form of briefs [Rule 124, Sec. 6]
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
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Mimeographed copies are not allowed.
(h) Contents of brief
The briefs in criminal cases shall have the same
contents as provided in Rule 44, Sec. 13-14.
[Rule 124, Sec. 7]
Appellants brief: [Rule 44, Sec. 13]
(a) SUBJECT INDEX
(b) ASSIGNMENT OF ERRORS
(c) STATEMENT OF THE CASE
(d) STATEMENT OF FACTS
(e) ISSUES
(f) ARGUMENTS
(g) RELIEF
(h) ATTACHMENT
Appellees brief: [Rule 44, Sec. 14]
(a) SUBJECT INDEX
STATEMENT OF FACTS; or COUNTER-
STATEMENT OF FACTS
ARGUMENTS
Dismissal of appeal for abandonment or
failure to prosecute [Rule 124, Sec. 8]
Grounds:
(A)Appellant fails to file his brief within the
prescribed time;
Exception: Where the appellant
represented by a counsel de oficio.
If failure to file brief on time is the ground,
appellant must be given NOTICE to give him
opportunity to reason out why his appeal
should not be dismissed.
However, dismissal is proper despite lack of
notice:
If appellant has filed a MFR or motion to set
aside the order dismissing the appeal, in
which he stated the reason why he failed to
file his brief on time and the appellate court
denied the motion after considering reason.
[Baradi v. People (1948)]
If appeal was dismissed without notice but
appellant took no steps to have the appeal
reinstated. Such action amounts to
abandonment. [Salvador v. Reyes (1949)]
(B)If the appellant escapes from prison/confinement,
jumps bail or flees to a foreign country during the
pendency of the appeal.
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
Likewise, when accused flees after the case
has been submitted for decision, he is
deemed to have waived his right to appeal.
[People v. Ang Gioc (1941)]
Exception: Appeal will not be dismissed
despite escape:
In one exceptional case, the appellant took
advantage of a mass jailbreak (because,
according to his counsel de oficio he was
innocent and wanted to elude an unjust
punishment) but was recaptured 2 hours
after, the SC said circumstances were not
sufficient to justify dismissal of the appeal.
[People v. Valencia (1949)]
If there was absolutely no evidence against the
accused as found by the appellate court, he
should be acquitted in order to prevent an
injustice by technicalities. [People v.
Buenaventura (1994)]
In case of automatic review. [People v.
Cornelio (1971)]
CA may dismiss the appeal upon appellees
motion or motu proprio.
PROMPT DISPOSITION OF APPEAL [Rule 124, Sec.
9] Appeals of accused who are under detention are
given precedence in their disposition over other
appeals.
The accused need not be present in court during
is the hearing of the appeal.
REVERSAL / MODIFICATION OF JUDGMENT ON
APPEAL [Rule 124, Sec. 10]
General rule: No judgment shall be
reversed/modified.
Exception: When the CA, after an examination of the
record and of the parties evidence, is of the opinion
that error was committed and such error injuriously
affected the appellants substantial rights.
When it involves credibility of witnesses, appellate
courts will not generally disturb the TCs findings.
Rationale: The TC is in a better position to decide
the question, having seen and heard the witnesses
themselves. [People v. Cabiling (1976)]
SCOPE OF CAS JUDGMENT [Rule 124, Sec. 11]
The CA may:
Reverse/affirm/modify the judgment;
Increase/reduce the penalty imposed by the TC;
Remand the case to the RTC for new trial or
retrial;
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UP COLLEGE OF LAW
Dismiss the case.
When the accused appeals from the sentence
of the TC, he waives the constitutional
safeguard against double jeopardy and throws
the whole case open to the review of the
appellate court, which is then called upon to
render such judgment as law and justice
dictate, WON favorable to the accused and
WON made the subject of assignment of errors.
[Ko Bu Lin v. CA (1982)]
CAS POWER TO RECEIVE EVIDENCE [Rule 124, Sec.
12] The CA has power to try cases and conduct
hearings, receive evidence and perform any and all
acts necessary to resolve factual issues in cases:
Falling within its original jurisdiction;
Involving claims for damages arising from
provisional remedies;
Where the court grants a new trial based only on
the ground of newly-discovered evidence.
CAs trials and hearings must be continuous and
completed within 3 months, unless extended by
the Chief Justice.
QUORUM IN THE CA [Sec. 11, BP 129]
3 CA Justices constitute a quorum for the
sessions of a division.
The unanimous vote of the 3 Justices of a
division is necessary for the pronouncement
of a judgment or final resolution
Decision is reached through a consultation
before the writing of the opinion by a member
of the division.
If there is lack of unanimity, the Presiding Justice
shall direct the CA raffle committee to
designate 2 additional Justices to sit
temporarily with them. They shall then form a
special division of 5 members.
The concurrence of a majority of that special
division is necessary for the pronouncement of a
judgment or final resolution.
Designation of the additional Justices shall be
made strictly by raffle and rotation among all
other CA Justices.
CERTIFICATION OR APPEAL OF CASES TO THE SC [Rule
124, Sec. 13]
If the CA finds that death penalty should be
imposed:
AUTOMATIC REVIEW CA shall render
judgment but refrain from making an entry of
judgment. It shall then certify the case and
elevate its entire record to the SC for review.
The accused does not have to do anything.
Note: Death penalty has been abolished.
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
If the judgment also imposes a lesser penalty for
offenses committed on the same occasion or
which arose from the same occurrence that
gave rise to the more severe offense for which
death is imposed, and the accused appeals:
The appeal shall be automatically included in
the case certified for review in the SC
If the CA imposes reclusion perpetua, life
imprisonment or a lesser penalty:
It shall render and enter judgment imposing
such penalty.
Appeal here is not automatic. The accused has
to file a notice of appeal with the CA.
JUDGMENT TRANSMITTED AND FILED IN TC
When the CAs entry of judgment is issued, a
certified true copy of the judgment shall be
attached to the original record. These shall be
remanded to the clerk of the court from which
the appeal was taken. [Rule 124, Sec. 17]
This copy of the entry serves as the formal notice
to the court from which the appeal was taken of the
disposition of the case in the appellate court, so
that the judgment may be executed and/or placed
or noted in the proper file.
MNT DURING THE PENDENCY OF APPEAL IN THE CA
[Rule 124, Sec. 14]
Appellant may file MNT on the ground of newly
discovered evidence material to his defense
any time:
After the appeal from the lower court has been
perfected, but
Before the CA judgment convicting him
becomes final.
The motion shall conform to Rule 121, Sec. 4.
If the CA grants a MNT, it may either: [Rule 124,
Sec. 15]
Conduct the hearing and receive evidence;
Refer the trial to the court of origin.
MFR OF CA JUDGMENT [Rule 124, Sec. 16]
MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party.
The mittimus shall be stayed during the MFRs
pendency.
General rule: No party shall be allowed a 2nd MFR
of a judgment or final order. [Sec. 11, BP 129]
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Exception: Where the 1st MFR resulted in a
reversal or substantial modification of the
original decision or final resolution.
In this case, the party adversely affected by the
reversal/modification may himself file a MFR of the
latest judgment of the court, because with respect
to him, said motion is a first pleading of that nature.
APPLICABLE CIVIL PROCEDURE RULES [Rule 124,
Sec. 18] Provisions of Rules 42, 44- 46 and 48- 56
relating to procedure in the CA and the SC in
original and appealed civil cases, shall be applied
to criminal cases insofar as they are applicable and
not inconsistent with the provision of this Rule.
PROCEDURE IN THE SC
(a) Uniform procedure [Rule 125, Sec. 1]
General rule: The procedure in the SC in original and
in appealed cases shall be the same as in the CA.
Exception: If the Constitution or law provides
otherwise.
(b) What the SC may do on review
In a criminal case, an appeal to the SC throws
open the whole case for review and it becomes
its duty to correct such errors as may be found
in the judgment appealed from, WON they were
assigned as errors. [People v. Olfindo (1924)]
It may examine the judgment as to the
qualification of the crime and the degree of the
penalty imposed. [Macali v. Revilla (1926)]
It may also assess and award civil indemnity.
[Quemel v. CA (1946)]
Ways by which a case may reach the
Supreme Court
Automatic review
It is not a matter of right on the part of the
accused, but a matter of law.
When available:
When the RTC judgment upon the accused
imposes death penalty. [Rule 122, Sec. 10]
When the RTC decision is appealed to CA and the
latter is of the opinion that the penalty imposed
should be death or life imprisonment. CA
judgment is imposed but no entry of judgment is
made; instead, the case is certified and the
entire record is elevated to the SC for review.
[Rule 124, Sec. 13]
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Ordinary appeal
When available:
When the penalty imposed by the RTC is life
imprisonment, decision is appealable directly
to the SC by filing a notice of appeal with the
RTC. [Rule 122, Sec. 3]
When an accused was charged with 2 or more
offenses committed on the same occasion or
arising out of the same occurrence, and in one
of those 2 cases, he was sentenced to life
imprisonment or death penalty, the appeal with
respect to the others, though punished with a
lesser penalty, is to the SC. [Rule 122, Sec. 3]
When the penalty of reclusion perpetua or death is
imposed on some of the defendants and a lesser
penalty on the other co-defendants, on account of
their varying degree of participation in the
commission of the offense or due to the presence
of modifying circumstances, in which case the
decision on the non-life convicts is directly
appealable to the SC. [People v. Carino]
In these cases, the SC reviews not only errors of
law but also the findings of fact by the TC.
Petition for review on certiorari
When available:
When constitutionality/validity of any treaty,
executive agreement, law, ordinance or
executive order or regulation is in question.
When validity of law is questioned by an accused
convicted under it by the TC, the SC cannot
review the evidence or pass upon any other
question of law which may appear on the record,
but will only confine itself to the question of the
in/validity of that law. [Trinidad v. Sweeney (1904)]
When the jurisdiction of any inferior court is in
issue.
When only an error or question of law is involved.
On decisions of the CA and the Sandiganbayan.
As a rule, review here is limited to errors of law.
General rule: Certiorari is used to correct only
errors of jurisdiction and not errors of
judgment of an inferior court. For errors of
judgment, ordinary appeal is available.
Exception: Cases where certiorari is granted
despite existence of the remedy of appeal:
Where public welfare and advancement of public
policy so dictate.
Where the broader interests of justice so require.
Where the orders complained of were found to
be completely null and void.
Where appeal was not considered as the
appropriate remedy.
UP COLLEGE OF LAW CRIMINAL PROCEDURE
(d) Failure to specify appellate court
Failure of appellant to specify in his notice of
appeal the court to which the appeal is being
made is not fatal. [RA 296]
(e) Erroneous choice / mode of appeal
In the case of People v. Resuello (1969), the
contention of the adverse party that the ordinary
appeal filed by appellant shall be dismissed because
the proper remedy is petition for review on certiorari
(only questions of law were involved) was rejected.
The SC said that in cases similarly situated, and as
long as the steps formally required for the perfection
of an appeal were taken in due time, appeal may be
given due course, without prejudice to requiring the
appellant to file the necessary petition for review on
certiorari which is also a form of appeal.
(f) Review of CA decisions
The procedure for the review by the SC of CA
decisions on criminal shall be the same as in
civil cases. [Rule 125, Sec. 2]
General rule: The SCs appellate jurisdiction in cases
brought to it from the CA is limited to reviewing and
revising the errors of law incurred by the latter.
The CAs findings of fact are final.
If an appeal in the SC involves questions of
facts, the SC has no jurisdiction and should
dismiss appeal. [Guico v. Mayuga (1963)]
Exception: [Vargas v. CA; Napolis v. CA (1972)]
When the conclusion is a finding founded entirely
on speculations/surmises/conjectures;
When the inference made is manifestly
mistaken/absurd/impossible;
When there is GAD;
When the judgment is based on a
misapprehension of facts;
When the findings of facts are conflicting;
When the CA, in making its findings, went beyond the
issues of the case and the same are contrary to
the admissions of both appellant and appellee.
Decisions if opinion is equally divided [Rule
125, Sec. 3]
When the SC en banc is equally divided in
opinion or the necessary majority cannot be had
on WON to acquit the appellant, the case shall
again be deliberated upon.
If no decision is reached after re-deliberation,
the lower courts judgment of conviction shall be
reversed and the accused is acquitted.
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If case is decided by a division of the SC whose
members are equally divided, the case shall be
heard and decided by the SC en banc.
Constitutional provisions on SC composition
[Art. 8, Sec. 4, Consti]
SC Composition: 1 Chief Justice + 14 Associate
Justices.
SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
No doctrine or principle of law laid down by the
SC in a decision rendered en banc or in
division may be modified/reversed.
EFFECT OF APPEAL BY ANY OF SEVERAL
ACCUSED [RULE 122, SEC. 11]
General rule: An appeal taken by one or more of
several accused shall not affect those who did
not appeal.
As to the appealing party, the execution of
judgment appealed from is stayed upon the
perfection of the appeal.
As to the co-accused who did not appeal, the
judgment of the TC insofar as it relates to him
becomes final and the appellate court has no
power to interfere with it. [Salvatierra v. CA (1996)]
Exception: Insofar as the judgment of the
appellate court is favorable and applicable to
those who did not appeal or who withdrew his
appeal. [People v. Gandia (2008)]
The appeal of the offended party from the civil
aspect shall not affect the criminal aspect of the
judgment or order appealed from.
GROUNDS FOR DISMISSAL OF APPEAL
WHEN APPEAL BY THE PEOPLE WILL NOT LIE
The People/State cannot appeal when it will put
the accused in double jeopardy. The
constitutional mandate against double jeopardy
prohibits not only a subsequent prosecution in a
new and independent cause but extends also to
appeal in the same case by the prosecution after
jeopardy had attached. [Republic v. CA]
The prosecution cannot appeal from a judgment
of acquittal
Rationale: A verdict of that nature is immediately
final and to try on the merits, even in an
appellate court, places the accused in double
jeopardy. [Central Bank v. CA (1989)]
UP COLLEGE OF LAW CRIMINAL PROCEDURE
Dismissal of case upon filing of demurrer by the
accused was held to be final even though based
on erroneous interpretation of the law. Hence, an
appeal therefrom by the prosecution would
constitute double jeopardy. [US v. Kilayko (1916)]
Where the TC has jurisdiction but mistakenly
dismisses the complaint/information on the
ground of lack of it, the order of dismissal is
unappealable. [People v. Duran (1960)]
An appeal by the People will not lie if the
purpose is to correct the penalty imposed by the
trial court or to include in a judgment a penalty
erroneously omitted. [People v. Paet (1956)]
The preclusion against appeal by the State from
judgments or final orders having the effect of
acquittal, applies even though accused did not raise
question of jeopardy. [People v. Ferrer (1956)]
Search and Seizure
NATURE OF SEARCH WARRANT
DEFINITION
It is an order in writing; issued in the name of the
People of the Philippines; signed by a judge; and
directed to a peace officer, commanding him to
search for personal property described in the warrant
and bring it before the court. (Rule 126, Sec. 1)
If it is without the judges signature: it is fatally
defective.
NATURE OF A SEARCH WARRANT
A search warrant (SW) is in the nature of a
criminal process akin to a writ of discovery,
employed by the state to procure relevant
evidence of a crime. [Malaloan v. CA (1994)]
They are not available to individuals in the
course of civil proceedings.
It is interlocutory in character -- it leaves
something more to be done, which is the
determination of the guilt of the accused.
BASIS: CONSTITUTIONAL SAFEGUARD AGAINST
UNREASONABLE SEARCH AND SEIZURES
No search warrant or warrant of arrest shall issue
except upon probable cause to be determined
personally by the judge after the examination under
oath/affirmation of the complaint and the witness he
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may produce, and particularly describing the
place to be searched, and the things/persons to
be seized. (Art. III, Sec. 2, 1987 Const.)
Exclusionary rule: Any evidence obtained in violation
of this or the preceding section (Art. III, Sec. 2) shall
be INADMISSIBLE for any purpose in any
proceeding. (Art. III, Sec. 3, Par. 2, 1987 Const.)
Doctrine of attenuation: Despite the illegality in
obtaining evidence, such evidence may be
admissible if the connection between the
evidence and the illegal method is sufficiently
remote or attenuated so as to dissipitate the
taint [Wong Sun v. US (1963)]
This constitutional guarantee is NOT a blanket
prohibition against ALL searches and seizures. It
operates only against unreasonable searches
and seizures.
What constitutes a reasonable or unreasonable
search or seizure in any particular case is purely a
judicial question. [Rodriguez v. Villamiel (1937)]
CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC
OFFICERS ACTS, NOT PRIVATE PERSONS
People v. Marti (1991); also People v.
Bongcarawan (2002): Search and seizure
clauses are restraints upon the government and
its agents, not upon private individuals.
However, if the private person is acting upon
orders of government officials, the principle of
agency applies, because in fact such private
person is acting in the interest of government,
and is therefore subject to the prohibition against
unreasonable searches and seizures.
General rule: Search of property is
unreasonable unless it has been authorized by a
valid search warrant.
Exceptions: Valid warrantless searches.
DISTINGUISH FROM WARRANT OF ARREST
Search Warrant Warrant of Arrest
Nature
Order in writing in the Order directed to the
name of the RP signed by peace officer to execute
the judge and directed to the warrant by taking the
the peace officer to search person stated therein into
personal property custody that he may be
described therein and to bound to answer for the
bring it to court. (Rule 126, commission of the
UP COLLEGE OF LAW CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION

Search Warrant Warrant of Arrest

Exception: (Malaloan v. CA [1994] subject to
Sec. 1) offense. Rule 126, Sec. 1)
Determination of Probable Cause If a case has not yet been filed, it may be filed in
a court with a territorial jurisdiction other than
The judge mustThe judge does not have that where the illegal articles sought to be seized
personally examine theto personally examine the are located.
complainant andcomplainant and his
witnesses in the form of witnesses. Instead, he This is aside from the consideration that a
searching questions andmay opt to personally criminal action may be filed in different venues
answers. (Rule 126, Sec.5) evaluate the report and under the rules for continuing crimes, or where
supporting documents different trial courts have concurrent original
submitted by the jurisdiction over the same criminal offense.
prosecutor [AAA v.
Carbonell (2007)]. The ruling may be applicable:
When the crime is found to have been committed in a
The examination must be Examination must be
particular place WITHIN the judicial region.
under oath or affirmation under oath.
of the complainant and Where a particular court, by reason of its
his witnesses. territorial area, has jurisdiction.
And where prosecutor, who filed the complaint
Form of Writ or information in said court, has territorial
It must particularly It must particularly describe jurisdiction different from the court within the
same judicial region which actually issued the
the place to be describe the person to be
searched and the things arrested. warrant.
to be seized.
A.M. No. 03-8-02-SC
When Executed The Executive Judges and, whenever they are
Generally served in the May be made at any time on official leave of absence or are not physically
day time, unless there be of the day or night. present in the station, the Vice-Executive Judges
(Rule a direction in the warrant 113, Sec. 2) that of Manila and Quezon City RTCs of Manila City
it may be served at shall have authority to act on applications for
any time of the day or search warrants involving:
night. (Rule 126, Sec. 9) heinous crimes;
illegal gambling;
Period of Validity illegal possession of firearms and ammunitions
Valid for ten (10) days Does not expire (No violations of the Comprehensive Dangerous
(Rule 126, Sec. 9). terminal life). Drugs Act of 2000;
the Intellectual Property Code, the
the Anti-Money Laundering Act of 2001,
APPLICATION FOR SEARCH WARRANT,
the Tariff and Customs Code; and,
WHERE FILED
other relevant laws that may hereafter be
enacted by Congress, and included herein by
APPLICATION
the Supreme Court.
Where filed (Rule 126, Sec. 2)
Any court within whose territorial jurisdiction the
Substance of application
crime was committed.
Requisites for issuing a search warrant (Rule
126, Sec. 4)
For compelling reasons stated in the application: A Search Warrant shall NOT issue EXCEPT:
If the place of the commission of the crime is
Upon probable cause in connection with one
known, any court within the judicial region
specific offense;
where the crime was committed. To be determined personally by the judge;
Any court within the judicial region where the After examination under oath or affirmation of the
warrant shall be enforced. complainant and the witness he may produce;
Particularly describing the place to be searched
However, if the criminal action has already been and the things to be seized which may be
filed, the application shall only be made in the anywhere in the Philippines.
court where the criminal action is pending.

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that an escape or the destruction of evidence

ISSUANCE AND FORM OF SEARCH WARRANT
If the judge is satisfied of the existence of facts upon
which the application is based or that there is
probable cause to believe that they exist, he shall
issue the warrant, which must be substantially in the
form prescribed by these Rules. (Rule 126, Sec. 6)
SW must be in writing and contain:
Name of person against whom it is directed;
Offense for which it was issued;
The place to be searched and
The description of the specific things to be seized;
A directive to law enforcement officers to search
and seize;
And for them to bring in court the things seized;
Signature of the judge issuing it.
VALIDITY OF SEARCH WARRANT
Period of validity: 10 days from its date.
Thereafter, it shall be void. (Rule 126, Sec. 10)
Lifetime of SW ends when a return has already
been made. [Mustang Lumber v. CA (1996)]
is imminent.
Search of house, room, or premise, to be
made in presence of two witnesses
No search of a house, room, or any other
premises shall be made except in the presence
of the lawful occupant thereof or any member of
his family or in the absence of the latter, two
witnesses of sufficient age and discretion
residing in the same locality. (Rule 126, Sec. 8)
Time of making search
Day time, unless the affidavit asserts that the
property is on the person or in the place ordered
to be searched, in which case a direction may
be inserted that it be served at any time of the
day or night. (Rule 126, Sec. 9)
A SW violates Rule 126, Sec. 9 if the time for making
the search is left blank, thus enabling the officers to
conduct the search in the evening of the appointed
search, causing untold conveniences to the person
searched. [Asian Surety v. Herrera (1973)]

SERVICE OF SEARCH WARRANT Where a search is to be made during the night

time, the authority for executing the same at that
Right to break door or window to effect search time should appear in the directive on the face of
The officer, if refused admittance to the place of the SW. [Asian Surety, supra]
directed search after giving notice of his purpose and
authority, may break open any outer or inner door or POST-SERVICE
window of a house or any part of a house or anything Receipt of property seized
therein to execute the warrant to liberate himself or
How receipt is given (Rule 126, Sec. 1)
any person lawfully aiding him when unlawfully
detained therein. (Rule 126, Sec. 7) If lawful occupant was The officer seizing the
present property under the SW
Knock and announce principle must give a detailed
Generally, officers executing a search must do receipt for the same to the
the following acts: lawful occupant of the
Announce their presence; premises in whose
Identify themselves to the accused and to the presence the search and
persons who rightfully have possession of the seizure were made.
premises to be searched; If he was not present The officer seizing the
Show to them the search warrant; and property under the SW
Explain the warrant in a language or dialect must, in the presence of
known and understood by them. at least 2 witnesses of
sufficient age and
When unannounced intrusion is permissible discretion residing in the
Person in the premises refuses to open it upon same locality, leave a
demand; receipt in the place in
Person in the premises already knew of the
which he found the seized
identity and authority of the officers;
property.
When the officers have an honest belief that
there is an imminent danger to life and limb;
When those in the premises, aware of the presence of
someone outside, are then engaged in activities
which justifies the officers to believe

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Delivery of property and inventory thereof to
court (Rule 126, Sec. 12)
The officer must forthwith deliver the property seized
to the judge who issued the warrant, together with a
true inventory thereof duly verified under oath.
10 days after issuance of the search warrant,
the issuing judge shall ascertain if the return has
been made, and if none, shall summon the
person to whom the warrant was issued and
require him to explain why no return was made.
If the return has been made, the judge shall
ascertain whether Sec. 11 of Rule 126 has been
complied with and shall require that the property
seized be delivered to him. The judge shall see
to it that delivery has been complied with.
The return on the search warrant shall be filed and
kept by the custodian of the log book on search
warrants who shall enter therein the date of the
return, the result, and other actions of the judge.
Goods seized remain under the courts custody
and control until the institution of the appropriate
criminal action with the proper court. [Tenorio v.
CA (2003)]
PROBABLE CAUSE
WARRANTS GENERALLY ISSUED UPON PROBABLE CAUSE
Probable cause: Such facts and circumstances
which would lead a reasonably discreet and
prudent man to believe that an offense has been
committed, and that objects sought in connection
with the offense are in the place sought to be
searched. [Santos v. Pryce Gases Inc. (2007)
This probable cause must be shown to be within
the personal knowledge of the complainant or
the witnesses he may produce and not based on
mere hearsay.
The probable cause must refer only to one
specific offense. [Roan v. Gonzales (1986)]
A probable cause to arrest does not necessarily
involve a probable cause to search and vice-versa.
PROBABLE CAUSE JUSTIFYING WARRANTLESS
ARREST AND WARRANTLESS SEARCH
This implies probability of guilt and requires
more than bare suspicion but less than evidence
which would justify conviction. It is not
determined by a fixed formula but is resolved
according to the facts of each case.
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PERSONAL EXAMINATION BY JUDGE OF
THE APPLICANT AND WITNESSES
Aside from the requirements mandated by Rule
126, Sec. 4, the rule requires the judge to
comply with a specific procedure in the conduct
of the examination of the complainant and the
witnesses he may produce. (Rule 126, Sec. 5):
The examination must be PERSONALLY
conducted by the judge;
The examination must be in the form of
searching questions and answers;
The complainant and the witnesses shall be
examined on those facts personally known to
them;
The statements must be in writing and under
oath; and
The sworn statements of the complainant and
the witnesses, together with the affidavits
submitted, shall be attached to the record.
EXAMINATION MUST BE PERSONALLY CONDUCTED
BY THE JUDGE; DETERMINED BY JUDGE HIMSELF
Searching questions and answers
Such questions which have the tendency to
show the commission of a crime and the
perpetrator thereof. [Luna v. Plaza (1968)]
In search cases, the application must be supported
by substantial evidence: that the items sought are
in fact seizable by virtue of being connected with
criminal activity and the items will be found in the
place to be searched. [People v. Tuan (2010)]
A search warrant issued by a judge who did not
ask searching questions but only leading ones and
in a general manner is invalid. [Uy v. BIR (2000)]
Although there is no hard-and-fast rule governing how
a judge should conduct his investigation, it is
axiomatic that the examination must be probing and
exhaustive, not merely routinary, general, peripheral,
perfunctory or pro forma. The judge must not simply
rehash the contents of the affidavit but must make his
own inquiry on the intent and justification of the
application. [Yao v. People (2007)]
Judge must examine under oath or affirmation the
complainant and the witness he may produce
A warrant NOT based on personal knowledge is void.
Examination under oath
Oath: Includes any form of attestation by which
a party signifies that he is bound in conscience
to perform an act faithfully and truthfully.
UP COLLEGE OF LAW
The oath required must refer to the truth of facts
within the personal knowledge of the petitioner
or his witnesses. [Alvarez v. CFI (1937)]
Mere affidavits of the complainant or his witnesses
are not sufficient. The examining judge has to take
depositions in writing of the complaint or his
witnesses, and attach the same to the record.
[Prudente v. Judge Dayrit (1989), citing Roan]
PARTICULARITY OF PLACE TO BE
SEARCHED AND THINGS TO BE SEIZED
Warrant issued must particularly describe the place
to be searched and the persons to be seized.
PARTICULARITY OF PLACE TO BE SEARCHED
Description of place to be searched is sufficient
if the officer with the SW can, with reasonable
efforts, ascertain and identify the place intended.
[People v. Veloso (1925)]
An apparent typographical error will not
necessarily invalidate the SW, as long as the
application contains the correct address.
[Burgos v. Chief of Staff (1984)]
PARTICULARITY OF THINGS TO BE SEIZED
Scope
Personal property only. SW does not issue for
seizure of immovable properties.
Ownership of the property seized is immaterial.
It is sufficient that the person against whom SW
is directed has control/possession of the
property. [Yao v. People (2007)]
General rule: Things to be seized must be
described particularly. General search warrants
are not allowed. Otherwise, the search and seizure
of the items in the implementation of such SW is
illegal and the items seized are inadmissible in
evidence. Art. III, Sec. 2 of the 1987 Const.)
SWs authorizing the seizure of books of
accounts and records showing all the
business transactions of certain persons,
regardless of whether the transactions were
legal or illegal, are general warrants
prohibited by law. [Stonehill v. Diokno (1967)]
Likewise, a description of things to be seized as
subversive documents, propaganda materials,
FAs, printing paraphernalia and all other
subversive materials hardly provided a
definite guideline to the executing officers.
[Dizon v. Hon. Castro (1985)]
And where the language used is too all-embracing as
to include all the paraphernalia of petitioner in the
operation of its business, the SW
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
is constitutionally objectionable. [Columbia
Pictures v. Flores (1993)]
Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather general, it is
not required that a technical description be
given, for this would mean that no SW could
issue. [People v. Rubio (1932)]
The general description of the documents listed
in the SW does not render the SW void if the
SW is severable, and those items not
particularly described may be cut off without
destroying the whole SW. [Uy v. BIR (2001)]
PERSONAL PROPERTY TO BE SEIZED
WHAT MAY BE SEIZED (RULE 126, SEC. 3)
Personal property subject of the offense.
Personal property stolen/embezzled and other
proceeds/fruits of the offense.
Personal property used or intended to be used
as the means of committing an offense.
The rule does not require 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 of possession of the property sought to be
seized. [Burgos v. Chief of Staff (1984)]
RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC
(OCTOBER 2, 2007)
The appropriate court may, at any time, either
motu proprio or on application of any person who
has a legal interest in the matter in litigation, order
a DNA testing. Such order shall issue after due
hearing and notice to the parties. (Sec. 4)
In a search incidental to an arrest even
WITHOUT a warrant, the person arrested may
be searched for (Rule 126, Sec. 13)
Dangerous weapons.
Anything which may have been used or constitute
proof in the commission of the offense.
EXCEPTIONS TO SEARCH WARRANT
REQUIREMENT
SEARCH INCIDENTAL TO LAWFUL ARREST
Warrantless searches allowed as an incident
of lawful arrest
A person lawfully arrested may be searched for
(1) dangerous weapons or (2) anything which
may have been used or (3) constitute proof in
the commission of an offense without a search
warrant. (Rule 126, Sec. 13)
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The arrest must precede the search; generally,
the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an
arrest can precede the arrest at if the police
have probable cause to make the arrest at the
outset of the search. [Riano (2011)]
The rule assumes that the arrest is legal. If the
arrest is illegal, then the search is illegal and as
a result, the things seized are inadmissible as
evidence. [People v. Aruta (1998)]
The search is confined to his person, but as an
incident of an arrest, the place or premises where
the arrest was made can also be searched without
a search warrant. The extent and reasonableness
of the search must be decided on its own facts and
circumstances. [Nolasco v. Pao (1985);
Where a search is first undertaken, and an
arrest was effected based on evidence produced
by such search, both search and arrest are
illegal. [Lui v. Matillano (2004)]
CONSENTED SEARCH
Consented warrantless search
Jurisprudence requires that in case of consented
searches or waiver of the constitutional guarantee
against obtrusive searches, it must first appear that
the right exists;
the person involved had knowledge, either actual or
constructive, of the existence of such right; and
the said person had an actual intention to
relinquish the right. [People v. Nuevas (2007)]
Consent to a search is not to be lightly inferred, but
must be shown by clear and convincing evidence.
It is the State which has the burden of proving, by
clear and positive testimony, that the necessary
consent was obtained and that it was freely and
voluntarily given. [Valdez v. People (2007)]
A peaceful submission to a search or seizure is
not a consent or an invitation thereto, but is
merely a demonstration of regard for the
supremacy of the law. [People v. Nuevas (2007)]
When is consented search reasonable: Only if
kept within the bounds of the actual consent.
A persons consent may limit the extent/scope of
a warrantless search in the same way that the
specifications of a warrant limit the search
pursuant thereto.
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BAR OPERATIONS COMMISSION
SEARCH OF MOVING VEHICLE
Search of moving vehicle
Rationale: Peace officers may lawfully conduct
searches of moving vehicles without need of a
warrant as it is impracticable to secure a judicial
warrant before searching a vehicle since it can
be quickly moved out of the locality or
jurisdiction in which the warrant may be sought.
[People v. Tuazon (2007)]
However, these searches would be limited to visual
inspection and the vehicles or their occupants
cannot be subjected to physical or body searches,
except where there is probable cause to believe
that the occupant is a law offender or the contents
of the vehicles are instruments or proceeds of
some criminal offense.
The search and seizure without warrant of
vessel and aircrafts for violation of customs laws
has been a traditional exception to the
requirement of SW. [Roldan v. Hon. Arca (1975)]
Nonetheless, in all cases falling under this
category, there must be a showing of a PC of a
violation of the law. [Caroll v. US (1924)]
CHECK POINTS; BODY CHECKS IN AIRPORT
Searches conducted in checkpoints [People
v. Vinecario (2004)]
They are valid as long as they are warranted by
the exigencies of public order and conducted in
a way least intrusive to motorists.
The vehicle is neither searched nor its occupants
subjected to a body search (i.e. inspection of the
vehicle is limited to a visual search).
Routine inspections are not regarded as violative
of an individuals right against unreasonable
search:
Where the officer merely draws aside the curtain
of a vacant vehicle which is parked on the
public fair grounds;
Officer simply looks into a vehicle;
Officer flashes a light therein without opening
cars doors;
Occupants not subjected to a physical search;
Inspection is limited to usual search or
inspection; or
Routine check is conducted in a fixed area [People
CA (2002)]
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PLAIN VIEW SITUATION
Plain view doctrine (2008 Bar)
Requisites (PIA): [People v. Valdez (1999),
People v. Salanguit (2001)]
A prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are legally
present in the pursuit of their official duties;
Evidence was inadvertently discovered by the
police who have a right to be where they are;
Evidence must be immediately apparently illegal
(i.e., drug paraphernalia);
Plain view justified mere seizure of evidence
without further search.
Limitations: [People v. Musa (1993)]
It may not be used to launch unbridled searches
and indiscriminate seizures.
Does not extend to a general exploratory search
made solely to find evidence of defendants guilt.
The doctrine is usually applied where a police
officer is not searching for evidence against the
accused, but nonetheless inadvertently comes
across an incriminating object.
Even if an object is in plain view, before it can be
seized without a SW, its incriminating nature
must first be apparent.
Where police officers are on the premises pursuant to
a valid consent to a search, an item falling into their
plain view may properly be seized even if the item is
not connected with their purpose in entering.
STOP AND FRISK SITUATION
A limited protective search of outer clothing for
weapons. [Malacat v. CA (1997)]
Where a police officer observes unusual conduct,
which leads him reasonably to conclude in the light
of his experience that criminal activity may be
afoot, and that a person with whom he is dealing
may be armed and presently dangerous,
Where in the course of investigating this behavior
he identifies himself as a policeman and makes
reasonable inquiry, and where nothing in the initial
stage of the encounter serves to dispel his
reasonable fear for his own or others safety, he is
entitled for the protection of himself and others in
the area to conduct a carefully limited search of
outer clothing of such persons in an attempt to
discover weapons which might be used to assault
him. [Terry v. Ohio (1968)]
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BAR OPERATIONS COMMISSION
Under this theory, PC is not required to conduct a
stop and frisk BUT, nevertheless, mere
suspicion/hunch will not validate a stop and frisk.
Test: Genuine reason - Reasonable belief based
on genuine reason and in the light of the officers
experience and the surrounding circumstances,
that a crime has either taken place or is about to
take place and the person to be stopped is
armed and dangerous.
ENFORCEMENT OF CUSTOM LAWS
Customs search
For the enforcement of customs duties and tariff
laws, the Collector of Customs is authorized to
effect searches and seizure. [General Travel
Services v. David (1966)]
The Tariff Code authorizes customs officers to:
Enter, pass through or search any land,
enclosure, warehouse;
Inspect/search/examine any vessel/aircraft and
any trunk/package/box/envelope or any
person on board, or stop and examine any
vehicle/beast/person suspected of
holding/conveying any dutiable/prohibited
article introduced into the Philippines contrary
to law.
General rule: The Tariff and Customs Code does
not require a warrant for such searches.
Exception: In the search of a dwelling house,
SW is required.
OTHER EXCEPTIONS
Exigent and Emergency Circumstances
Example: There was a prevailing general chaos
and disorder because of an ongoing coup, and
the raid of the office/building was precipitated by
an intelligence report that said office was being
used as HQ by the RAM. Also, the surveillance
team before the raid was fired upon by the
people inside. The raiding team had no
opportunity to apply for warrant as the court then
was closed. [People v. de Gracia (1994)]
Buy-bust Operation: No need for SW (or
warrant of arrest) because the accused is
caught in flagrante delicto.
A form of entrapment legally employed by peace
officers as an effective way of apprehending
drug dealers in committing an offense.
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Entrapment: Employment of such ways and
means for the purpose of trapping or capturing a
lawbreaker
Private Searches and State Expansion of
Private Search
The evidence was obtained by a private person acting
in a private capacity without state participation and
intervention. It was company SOP. Constitutional
rights cannot be invoked when there is no
government interference. [People v. Marti (1999)]
Compliance with procedural and substantial
requisites.
Matters of defense are to be raised in the
criminal action. [DOH v. Sy Chi Siong (1989)]
File a motion to return seized things.
This is the remedy used if the search was
already conducted and goods were seized as a
consequence thereof.
Where the motion will be filed follows the same
rules as 2(c) above.

REMEDIES FROM UNLAWFUL SEARCH AND Motion to quash a search warrant or to

SEIZURE
WHO MAY AVAIL OF REMEDIES
Only the party whose rights have been impaired
thereby; the objection to an unlawful search and
seizure is purely personal and cannot be availed
of by third parties. [Stonehill v. Diokno (1967);
Santos v. Pryce Gases, Inc. (2007)]
suppress evidence. (2005, 2007 Bar)
A motion to suppress as evidence the objects
illegally taken (exclusionary rule) any evidence
obtained through unreasonable searches and
seizures shall be inadmissible for any purpose in
any proceeding.
Rule 126, Sec. 14 Where to file

REMEDIES If criminal action has been Court where the action

Employ any means to prevent the search. filed has been instituted.
Without a SW, the officer cannot insist on
If no criminal action has Court that issued SW.
entering a citizens premises. If he does so, he
been instituted
becomes an ordinary intruder.
If no criminal action is Court where the
The person to be searched may resist the filed and motion is first subsequent criminal
search and employ any means necessary to filed with the court that action has been
prevent it, without incurring any criminal liability. issued the SW, but it instituted.
[People v. Chan Fook (1921)] failed to resolve the
motion and a criminal
File criminal action against officer. case is subsequently filed
A public officer/employee who procures a SW in another court
without just cause is criminally liable under Art.
129, RPC (Search warrants maliciously obtained Grounds for a Motion to Quash [Bache & Co.
and abuse in the service of those legally obtained). v. Ruiz (1971)]
No personal examination by the judge.
File a Motion to Quash the illegal SW. More than one specific offense.
This remedy is employed if search is not yet No particular description.
conducted.
Who may file
General rule: The motion must be filed before the sala Person injured.
of the judge who issued it. Only the court that issued Person searched.
the SW may order revocation of SW or release of Owner of the property.
things seized. [Pagkalinawan v. Gomez (1967)]
An accused may file a Motion to Suppress
Exception: Where the SW is issued by one court and Evidence if he is not among the persons who
the criminal action based on the results of the search can file a Motion to Quash.
is afterwards filed in another court, the motion may be
filed in either court. [People v. CA (1999)] Effect of failure to quash warrant
Where no MTQ the SW was filed in or resolved by the
What may be raised in the MTQ. issuing court, the interested party may move in the
Existence or non-existence of probable cause at court where the criminal case is pending for the
the time of issuance of the SW;

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suppression of the personal property seized IF the
same is offered therein as evidence (REGALADO).
The MTQ a SW and Motion to Suppress Evidence
are alternative, not cumulative remedies.
Effects of illegal search
Illegally seized evidence may not be admitted in
evidence in any proceeding. (Art. III, Sec. 2,
1987 Const.)
DISPOSITION OF ILLEGALLY SEIZED PROPERTY
General rule: Goods seized by virtue of an illegal
warrant must be returned. [Castro v. Pabalan (1976)]
Exception: If possession of the things seized is
prohibited by law, they should not be returned.
However, where the accused obtained goods from
another through payment of bouncing checks and
thereafter sold said goods to a buyer in good faith, but
said goods were taken from the purchaser with the
use of a SW although the criminal case for estafa
against the accused was still pending, the goods
should be returned to the buyer. The buyer is entitled
to possession of goods until restitution is ordered by
the court in the criminal case. [Yu v. Honrado (1980)]
Waiver of immunity against unreasonable
searches and seizure. [Pasion v. Locsin (1938)]
The constitutional immunity against unreasonable
searches and seizure is a personal right that may
be waived expressly/impliedly ONLY by the person
whose right is being invaded or one who is
expressly authorized to do so in his behalf.
Requisites of a valid waiver
It must appear that the right exists;
That the person involved had knowledge, (actual or
constructive) of the existence of such right;
That the person had an actual intention to
relinquish the right.
CRIMINAL LIABILITY
Violation of the following:
Violation of domicile (RPC Art. 128)
SW maliciously obtained (Art. 129)
Searching domicile without witnesses (Art. 130)
Unjust interlocutory order (Art. 206)
Grounds:
Against public officer or employer:
Entering without authority; against the will;
refuses to leave.
SW procured without just cause or if with just
cause, exceeds his authority or uses
unnecessary severity of force.
CRIMINAL PROCEDURE BAR OPERATIONS COMMISSION
Conducting the search without the required
witnesses.
Against judge:
For knowingly rendering an unjust interlocutory
order.
Inexcusable negligence or ignorance.
CIVIL LIABILITIES
Violation of the following:
Violation of rights and liberties (Art. 32 [9], CC)
Malicious prosecution and acts referred to Art.
32. (Art. 2218, CC)
Malice or bad faith is not required.
Not only official actions, but makes all persons
who are responsible for the violation liable for
damages [MHP Garments v. CA (1994)]
Provisional Remedies
NATURE
Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
connection with the civil action deemed instituted
with the criminal action. [Rule 127, Sec. 1]
Where the civil action has actually been instituted,
or proceeded independently of the criminal action,
these provisional remedies cannot be availed of in
the criminal action but may be applied for in the
separate civil action. (Regalado)
If the civil action is suspended on account of
filing of the criminal action
The court with which the civil case is filed is not
thereby deprived of its authority to issue
auxiliary writs that do not go into the merits of
the case. [Ramcar Inc v. de Leon]
Not available when:
Offended party has waived the civil claim.
Offended party has reserved the civil claim.
Offended party has already instituted a separate
civil action.
Criminal action carries with it no civil liability.
KINDS OF PROVISIONAL REMEDIES
Reference to provisional remedies in Rule 127 is
made in general terms, hence preliminary injunction,
preliminary attachment, receivership, replevin or
support pendent lite may be availed of. (Riano)
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The accused may present evidence to prove his Issuance and implementation of the writ
defense and damages, if any, arising from the [Gonzalez v. State Properties (2001)]
issuance of a provisional remedy in the case.
[Rule 119, Sec. 11(b)]
When
PRELIMINARY ATTACHMENT Issuance of writ May be done before
When proper [Rule 127, Sec. 2] acquisition of jurisdiction
When the civil action is properly instituted in the over the accused; may be
criminal action, the offended party may have the ex-parte
property of the accused attached as security for
the satisfaction of any judgment that may be Enforcement of writ Only after acquisition of
recovered from the accused in the following cases: jurisdiction over the
When the accused is about to abscond from the person of the defendant
Philippines
When the criminal action is based on a claim for money No notice to the adverse party, or hearing on the
or property embezzled or fraudulently misapplied application is required before a writ of preliminary
or converted to the use of the accused who is a attachment may issue as a hearing would defeat
public/corporate officer, attorney, factor, broker, agent the purpose of the provisional remedy. The time
or clerk, in the course of his employment as such, or which such hearing would take could be enough to
by any other person in a fiduciary capacity, or for a enable the defendant to abscond or dispose of his
willful violation of duty property before a writ of attachment may issue
When the accused has concealed, removed or [Mindanao Savings etc. v. CA, 172 SCRA 480]
disposed of his property, or is about to do so
When the accused resides outside the Philippines

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General Principles on the accused [Sec. 14,

Art. III]
of Evidence PROOF vs. EVIDENCE

CONCEPT OF EVIDENCE Proof Evidence

The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth Result or effect ofMode and manner of
respecting a matter of fact [Sec. 1, Rule 128] evidence [Regalado]proving competent facts
in judicial proceedings
SCOPE OF THE RULES OF EVIDENCE [Bustos v. Lucero, 81 Phil
General rule: Principle of uniformity 640]
Rules of evidence shall be the same in all courts FACTUM PROBANS vs. FACTUM PROBANDUM
and in all trials and hearings. [Sec. 2, Rule 128]

Exception: If otherwise provided by: Civil Cases Criminal Cases

Law (e.g., 1987 Constitution, statutes); Facts or material The proposition to be
Rules of Court. [Sec. 2, Rule 128] evidencing the established
proposition
APPLICABILITY
The rules of evidence are specifically applicable The evidentiary fact The ultimate fact sought
only in judicial proceedings. [Sec. 1, Rule 128] tending to prove the fact to be established
in issue
In quasi-judicial proceedings, the same apply by Facts or material The proposition to be
analogy [Sec. 4, Rule 1], except in cases where evidencing the established
the governing law in the particular proceeding proposition
specifically adopts the rules of evidence in the [Source: Regalado]
Rules of Court. [Regalado]
CLASSIFICATION OF EVIDENCE
Administrative investigations shall be conducted Object, documentary and testimonial evidence
without necessarily adhering strictly to the technical Object Documentary Testimonial
rules of procedure and evidence applicable to
judicial proceedings [Dela Cruz v. Malunao (2012)] Addressed to Consist of Testimony or
the senses of the
writings or any deposition of a
Note: There is a different rule for Rules on court. [Sec. 1,
material witness
Electronic Evidence since it covers quasi-judicial Rule 130] containing
and administrative bodies [Sec, 2, Rule 1, Rules letters, words,
on Electronic Evidence] numbers,
figures, symbols
EVIDENCE IN CIVIL CASES vs. EVIDENCE IN or other modes
CRIMINAL CASES of written
Civil Cases Criminal Cases expressions
offered as proof
Preponderance of Proof beyond reasonable
of their contents
evidence [Sec. 1, Rule 133] doubt [Sec. 2, Rule 133] [Sec. 2, Rule 130]
Offer of compromise NOT Offer of compromise by Cumulative and corroborative evidence
an admission of any the accused may be
liability [Sec. 27, Rule 130] received in evidence as an
Cumulative Corroborative
implied admission of guilt
(except for quasi-offenses Evidence of the same Additional evidence of a
or those allowed by law kind and to the same different character to the
to be compromised) [Sec. state of facts same point
27, Rule 130] Prima facie and conclusive evidence
Presumption of Presumption of
innocence does NOT innocence a Prima facie Conclusive
apply constitutional guarantee

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Standing alone, unexplained Class of evidence Exclusionary rules of evidence by law are either
or uncontradicted, is which the law does constitutional or statutory, as such:
sufficient to maintain the not allow to be
proposition affirmed contradicted Constitutional Statutory

Unreasonable searchesLack of documentary

Primary and secondary evidence
Primary Secondary and seizures; privacy ofstamp tax to documents
communication andrequired to have one
(a) Best Evidence (a) Substitutionary correspondence. [Secs. makes such document
(b) That which the law Evidence 2-3, Art. III] inadmissible as evidence
regards as affording (b) Inferior to primary; in court until the requisite
the greatest permitted only when stamp/s shall have been
certainty of the fact the best evidence is affixed thereto and
in question not available cancelled. [Sec. 201, NIRC]
Miranda Rights: right to Any communication
counsel, prohibition of obtained by a person, not
ADMISSIBILITY OF EVIDENCE torture, force, violence, being authorized by all the
REQUISITES FOR ADMISSIBILITY OF EVIDENCE threat, intimidation orparties to any private
Evidence is admissible when it is: other means whichcommunication, by
Relevant to the issue and vitiate the free will; tapping any wire/cable or
Not excluded by law or the ROC. [Sec. 3, Rule 128] prohibition of secret using any other
detention places,device/arrangement to
WHEN DETERMINED solitary, incommunicado. secretly
Admissibility is determined at the time it is [Sec. 12, Art. III] overhear/intercept/record
offered to the court [Sec. 35, Rule 132] such information by using
any device, shall not be
RELEVANCE OF EVIDENCE & COLLATERAL MATTERS admissible in evidence in
Relevancy any judicial/quasi-
Evidence must have such a relation to the fact in judicial/legislative/
issue as to induce belief in its existence or non- administrative hearing or
existence. [Sec. 4, Rule 128] investigation. [Secs. 1 and
4, R.A. 4200 (Wire-
Collateral matters Tapping Act)]
Matters other than the fact in issue which are No person shall be Rules on Electronic
offered as a basis for inference as to the existence compelled to be a Evidence [Sec. 1,Rule 9,]
or non-existence of the facts in issue [Regalado] witness against himself.
[Sec.17, Art.III]
General Rule: Evidence on collateral matters is
NOT allowed. [Sec. 4, Rule 128]
Under the ROC, Rule 130 is the applicable rule
Exception: When it tends in any reasonable degree in determining the admissibility of evidence.
to establish the probability or improbability of the
fact in issue. [Sec. 4, Rule 128]
Note: Evidence illegally obtained is inadmissible
on a timely motion or action to suppress
Note: What is prohibited by the Rules is not [Stonehill v. Diokno (1967)]
evidence of all collateral matters, but evidence
DOCTRINES OF ADMISSIBILITY
of irrelevant collateral facts. [Regalado]
Multiple admissibilityWhere the evidence is
Competence relevant and competent for two or more
Evidence not excluded by: purposes, such evidence shall be admitted
Law, or for any or all the purposes for which it is
The ROC [Sec. 3, Rule 128] offered, provided it satisfies all the requisites
Determined by the prevailing exclusionary rules of law for its admissibility therefor. [Regalado]
of evidence [Regalado]
Conditional admissibilityWhere the evidence at
the time of its offer appears to be immaterial or
irrelevant unless it is connected with the other

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facts to be subsequently proved, such evidence Burden of Proof Burden of Evidence

may be received, on condition that the other
facts will be proved thereafter; otherwise, the evidence that he has
evidence already given shall be stricken out. presented) that he (the
potential proponent) has
Note: This is applied in the case of People v. to overcome. That factum
Yatco (97 Phil 940) subject to the probandum may, but does
qualification that there should be no bad faith not have to be, nor is
on the part of the proponent. The qualification limited to a "prima facie
appears to avoid unfair surprises. [Regalado] presumption." Likewise, a
party will not have any
Curative admissibilityWhere the court has burden of evidence at all if
admitted incompetent evidence adduced by the adverse party has not
the adverse party, a party has a right to established any factum
introduce the same kind of evidence in probandum in the first
his/her behalf. [Regalado] place. (Prof. Victoria A.
Avena)
Direct evidence vs. circumstantial evidence
Does not shift Shifts from party to party
Direct Circumstantial throughout the trial depending upon the
Proves the fact in dispute Proof of a fact/s from exigencies of the case in
without the aid of any which, taken either singly the course of the trial
inference or presumption or Generally determined by Generally determined by
collectively, the the pleadings filed by the the developments at the
existence of a particular party trial, or by the provisions
fact in dispute may be of substantive or
inferred as a necessary or procedural law
probable consequence
WHERE BURDEN OF PROOF IS FIXED
Positive evidence vs. negative evidence The burden of proof is fixed by pleadings. [Riano]
Positive Negative
EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE
Witness affirms that a Witness states he/she did The doctrine refers to the situation where the
fact did or did not occur not see or know of the evidence of the parties are evenly balanced or
occurrence of a fact (e.g., there is doubt on which side the evidence
denial) preponderates. In this case, the decision should be
Competence vs. credibility against the party with the burden of proof. [Rivera
v. CA (284 SCRA 672); Marubeni v. Lirag (2001)]
Competence Credibility
In criminal cases, the equipoise rule provides
Eligibility of evidence to Worthiness of belief; that where the evidence is evenly balanced, the
be received as such believability constitutional presumption of innocence tilts the
scales in favor of the accused. [Malana v.
BURDEN OF PROOF AND BURDEN OF EVIDENCE People (2008)]

PRESUMPTIONS
Burden of Proof Burden of Evidence
Conclusive Disputable
Duty of a party to present A party will have the Inferences which the law Satisfactory if
evidence on the facts in burden of evidence only makes so peremptory uncontradicted, but may
issue necessary to (i.e., will have to be a that it will not allow them be contradicted and
establish his/her claim or proponent) if there is any to be overturned by any overcome by other
defense by the amount factum probandum contrary proof however evidence [Sec. 3, Rule 131]
of evidence required by (whether evidentiary or strong [Datalift Movers v.
law [Sec. 1, Rule 131] otherwise) that the Belgravia Realty (2006)]
adverse party has already
established (whether by
law, rule, or by virtue of

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LIBERAL CONSTRUCTION OF THE RULES
OF EVIDENCE
Like all other provisions under the ROC, rules of
evidence must be liberally construed. [Sec. 6, Rule 1]
Rules on Electronic Evidence shall likewise be
construed liberally. [Sec. 2, Rule 2, Rules on
Electronic Evidence]
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE)
PROOF BEYOND REASONABLE DOUBT
Applicable quantum of evidence in criminal
cases [Sec. 2, Rule 133]
Only moral certainty is required that degree of
proof which produces conviction in an
unprejudiced mind. [Sec. 2, Rule 133]
The burden is on the prosecution to prove guilt
beyond reasonable doubt, NOT on the accused to
prove his/her innocence. [Boac v People (2008)]
The prosecution must not rely on the weakness
of the evidence of the defense. [Ubales v People
(2008); People v Hu (2008)]
PREPONDERANCE OF EVIDENCE
Applicable quantum of evidence in civil cases
[Sec. 1, Rule 133]
Means that the evidence adduced by one side
is, as a whole, superior to or has greater weight
than that of the other. [Habagat Grill v. DMC-
Urban Property Developer, Inc.(2005); Bank of
the Philippine Islands v Reyes (2008)]
In determining preponderance of evidence, the
court may consider:
All the facts and circumstances of the case;
The witnesses manner of testifying, their
intelligence, their means and opportunity of
knowing the facts to which they testify, the
nature of the facts to which they testify, the
probability or improbability of their testimony;
The witnesses interest or want of interest, and also
their personal credibility so far as the same may
legitimately appear upon the trial;
Number of witnesses (although preponderance is
not necessarily equated with the number of
witnesses). [Sec. 1, Rule 133]
SUBSTANTIAL EVIDENCE
Degree of evidence required in cases filed before
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EVIDENCE BAR OPERATIONS COMMISSION
administrative or quasi-judicial bodies [Sec. 5,
Rule 133]
The amount of relevant evidence which a
reasonable mind might accept as adequate to
support a conclusion [Sec. 5, Rule 133]
CLEAR AND CONVINCING EVIDENCE
Standard of proof required in granting or denying
bail in extradition cases [Government of Hongkong
Special Administrative Region v Olalia, Jr. (2007)]
Intermediate in character lower than proof
beyond reasonable doubt, but higher than
preponderance of evidence
Judicial Notice and
Judicial Admissions
WHAT NEED NOT BE PROVED
Facts of Judicial Notice
Judicial Admissions
Conclusive Presumptions
JUDICIAL NOTICE
Judicial notice is the cognizance of certain facts
that judges may properly take and act on without
proof because these facts are already known to
them. Put differently, it is the assumption by a court
of a fact without need of further traditional
evidentiary support. The principle is based on
convenience and expediency in securing and
introducing evidence on matters which are not
ordinarily capable of dispute and are not bona fide
disputed. [Republic v. Sandiganbayan (2011)]
MATTERS OF JUDICIAL NOTICE
MANDATORY
Needs no introduction of evidence [Sec. 1, Rule 129]:
Existence and territorial extent of states;
Their political history, forms of government, and
symbols of nationality;
Law of nations;
Admiralty and maritime courts of the world and
their seals;
Political constitution and history of the
Philippines;
Official acts of the legislative, executive and
judicial departments of the Philippines;
Laws of nature;
Measure of time; and
Geographical divisions.
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Note: It would be error for the court not to take
judicial notice of an amendment to the Rules of
Court [Riano citing Siena Realty v. Gal-lang (428
SCRA 422)]
DISCRETIONARY
Matters of public knowledge;
Matters capable of unquestionable
demonstration; and
Matters ought to be known to judges because of
their judicial functions. [Sec. 2, Rule 129]
REQUISITES
For the court to take judicial notice, three
material requisites should be present:
The matter must be one of common and general
knowledge;
It must be well and authoritatively settled and
not doubtful or uncertain;
It must be known to be within the limits of the
jurisdiction of the court. [State Prosecutors v,
Muro (1994)]
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 v. Muro (1994)]
With Respect to Courts Own Acts and Records
A court MAY take judicial notice of its own acts
and records in the same case. [Republic v Court
of Appeals (1997)]
With Respect to Records of Other Cases
General Rule: Courts CANNOT take judicial notice
of the contents or records of other cases even if
both cases may have been tried or are pending
before the same judge. [Prieto v. Arroyo (1965)]
Exceptions:
When there is no objection, with the knowledge of
the opposing party, the contents of said other
case are clearly referred to and adopted or read
into the record of the latter; or
When the original or part of the records of the
case 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
[Tabuena v. CA (1991)]
The principal guide in determining what facts may be
assumed to be judicially known is that of notoriety. It
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is either 1) 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. [Riano]
JUDICIAL ADMISSIONS
To be a judicial admission, the same:
Must be made by a party to the case;
Must be made in the course of the proceedings
in the same case; and
May be verbal or written. [Sec. 4, Rule 129]
As regards judicial admissions made in the trial of
another case: the same would be considered an
extrajudicial admission for the purpose of the other
proceeding where such admission is offered. [Riano]
WHERE JUDICIAL ADMISSIONS MAY BE MADE
Pleadings filed by the parties (including
admissions made in pleadings which are
withdrawn/superseded by an amended
pleading [Regalado])
The course of the trial either by verbal/written
manifestations/stipulations
Other stages of judicial proceedings
HOW JUDICIAL ADMISSIONS MAY BE OBTAINED
Depositions
Written interrogatories
Request for admissions [Regalado; see also
Civil Procedure Rules]
There are averments made in pleadings which
are not deemed admissions even if the adverse
party fails to make a specific denial of the same
like immaterial allegations (Sec. 11, Rule 8),
conclusions, non-ultimate facts in the pleading
(Sec. 1, Rule 8) as well as the amount of
liquidated damages (Sec. 11, Rule 8). [Riano]
Although an admission made during the pre-trial
is deemed to have been made in the course of
the judicial proceeding and is necessarily a
judicial admission, an admission made by the
accused in the pre-trial of a criminal case is not
necessarily admissible against him. To be
admissible, it must comply with the conditions
set forth under Sec. 2, Rule 118 [Riano]
EFFECT OF JUDICIAL ADMISSIONS
It does NOT require proof. [Sec. 4, Rule 129]
It is conclusive upon the party making it, and
hence, CANNOT be contradicted. [Sec. 4,
Rule 129]
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An original complaint, after being amended, loses
its character as a judicial admission, which would
have required no proof. It becomes merely an
extra-judicial admission requiring a formal offer to
be admissible. [Torres v CA (1984)].
A party who judicially admits a fact cannot later
challenge that fact as judicial admissions are a
waiver of proof; production of evidence is
dispensed with. [Alfelor v Halasan (2006)]
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED
As an exception to the general rule, judicial
admissions may be contradicted only by
showing that:
It was made through palpable mistake; [Sec. 4,
Rule 129]
No such admission was made. [Sec. 4, Rule 129] This
may be invoked when the statement of a party is
taken out of context or that his statement was
made not in the sense it is made to appear by the
other party [Phil. Health Care Providers v.
Estrada, 2008 citing Atillo, III v. CA, 1997]
CONCLUSIVE PRESUMPTIONS
Instances of Conclusive
Presumptions [Sec. 2, Rule 131]
(1)Whenever a party has, by his own
declaration/act/omission, intentionally and
deliberately led another to believe a particular
thing is true and to act upon such belief, he
cannot, in any litigation arising out of such
declaration/act/omission, be permitted to
falsify it.
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.
As Distinguished from Disputable
Presumptions [Sec. 3, Rule 131]
Person is innocent of a crime or wrong;
Unlawful act is done with an unlawful intent;
Person intends the ordinary consequences of
his voluntary act;
Person takes ordinary care of his concerns;
Evidence willfully suppressed would be adverse
if produced;
Money paid by one to another was due to the
latter;
Thing delivered by one to another belonged to
the latter;
Obligation delivered up to the debtor has been
paid;
Prior rents or installments had been paid when a
receipt for the later ones is produced;
A person found in possession of a thing taken in the
doing of a recent wrongful act is the taker
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and doer of the whole act; otherwise, that
things which a person possesses or exercises
acts of ownership over, are owned by him;
Person in possession of an order on himself for
the payment of the money or the delivery of
anything has paid the money or delivered
the thing accordingly;
Person acting in public office was regularly
appointed or elected to it;
Official duty has been regularly performed;
A court or judge acting as such, whether in the
Philippines or elsewhere, was acting in the
lawful exercise of jurisdiction;
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;
Private transactions have been fair and regular;
Ordinary course of business has been followed;
There was a sufficient consideration for a
contract;
Negotiable instrument was given or indorsed for
a sufficient consideration;
An indorsement of negotiable instrument was
made before the instrument was overdue and
at the place where the instrument is dated;
A writing is truly dated;
Letter duly directed and mailed was received in
the regular course of the mail;
Presumptions concerning absence:
Ordinary but continued absence of:
7 years, it being unknown WON the
absentee still lives, he is considered
dead for all purposes, except for
those of succession
10 yearsthe absentee shall be
considered dead for the purpose of
opening his succession; but if he
disappeared after the age of 75
years, an absence of 5 years shall
be sufficient to open his succession
4 consecutive yearsthe spouse present
may contract a subsequent marriage if
s/he has a well-founded belief that the
absent spouse is already dead; but
where there is danger of death, an
absence of only 2 years shall be
sufficient for remarriage
Qualified absence
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
A member of the armed forces who has
taken part in armed hostilities, and has
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been missing for 4 years reports of cases adjudged in tribunals of the

A person who has been in danger of country where the book is published,
death under other circumstances contains correct reports of such cases;
and whose existence has not been A trustee or other person whose duty it was to
known for 4 years convey real property to a particular person has
Acquiescence resulted from a belief that the actually conveyed it to him when such
thing acquiesced in was conformable to the presumption is necessary to perfect the title of
law/fact; such person or his successor in interest;
Things have happened according to the ordinary Presumptions regarding survivorship: (Applicable for
course of nature and ordinary nature habits all purposes except succession)
of life; When 2 persons perish in the same
Persons acting as copartners have entered into calamity,
a contract of co-partnership; And it is not shown who died first,
A man and woman deporting themselves as And there are no particular circumstances from
husband and wife have entered into a lawful which it can be inferred,
contract of marriage; The survivorship is determined from the
Property acquired by a man and a woman who are probabilities resulting from the strength
capacitated to marry each other and who live and the age of the sexes:
exclusively with each other as husband and
wife without the benefit of marriage or under a Situation Person presumed to have survived
void marriage, has been obtained by their joint
efforts, work or industry; Both < 15 y/o The older
In cases of cohabitation by a man and a woman who
Both > 60 y/o The younger
are not capacitated to marry each other and who
have acquired property through their actual joint One < 15 y/o,
contribution of money, property or industry, such the other > 60 The one <15
contributions and their corresponding shares y/o
including joint deposits of money and evidences Both > 15 and <
of credit are equal;
60 y/o, of The male
Presumptions governing children of women who different sexes
contracted another marriage within 300 days
after termination of her former marriage (in the Both > 15 and
absence of proof to the contrary): <60 y/o, of the The older
same sex
When child was born Presumption
As between 2 or more persons called to succeed
Before 180 days Considered to have been each other: If there is a doubt as to which of
after the conceived during the former them died first, whoever alleges the death of
solemnization of the marriage, provided it be born one prior to the other, shall prove the same. In
subsequent within 300 days after the the absence of proof, they shall be considered
marriage termination of the former to have died at the same time.
marriage
JUDICIAL NOTICE OF FOREIGN LAWS, LAW
After 180 days Considered to have been
OF NATIONS AND MUNICIPAL ORDINANCES
following the conceived during the
celebration of the subsequent marriage, even FOREIGN LAWS
subsequent though it be born within the General Rule: Courts cannot take judicial notice
marriage 300 days after the termination
of foreign laws. [Yao-Kee v. Sy-Gonzales (1988)]
of the former marriage.
Exceptions: The court may take judicial notice
A thing once proved to exist continues as long of the foreign law:
as is usual with things of the nature; Where the foreign law is within the actual
The law has been obeyed; knowledge of the court such as when the law is
A printed/published book, purporting to be generally well-known, had been ruled upon in
printed/published by public authority, was so previous cases before it and none of the parties
printed/published; claim otherwise [PCIB v Escolin (1974)]
A printed/published book, purporting to contain

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When the foreign law is part of a published
treatise, periodical or pamphlet and the writer
is recognized in his/her profession or calling
as expert in the subject [Sec. 46, Rule 130]
Under the Doctrine of Processual Presumption:
In the absence of proof, the foreign law will be
presumed to be the same as the laws of the
jurisdiction hearing the case. [Northwest Orient
Airlines v Court of Appeals (1995)]
LAW OF NATIONS
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 therefore
in the nature of local laws, and hence, subject to
mandatory judicial notice under Sec. 1 of Rule 129.
MUNICIPAL ORDINANCES
Municipal trial courts are required to take judicial
notice of the ordinances of the municipality or city
wherein they sit. [(US v. Blanco, 37 Phil 126)]
However, in the case of the RTC, they must take such
judicial notice only (a) when required to do so by
statute (City of Manila v. Garcia (1967)); and b) in a
case of appeal before them wherein the inferior court
took judicial notice of an ordinance involved in said
case [(US v. Blanco, 37 Phil 126)] [Regalado]
Object (Real) Evidence
NATURE OF OBJECT EVIDENCE
Those addressed to the senses of the court
[Sec. 1, Rule 130]
The right against self-incrimination CANNOT be
invoked against object evidence. [People v.
Malimit, (1996)]
REQUISITES OF ADMISSIBILITY
Evidence must be relevant;
Evidence must be authenticated;
Authentication must be made by a competent
witness; and
Object must be formally offered [Sec. 34, Rule
132]
RELEVANT
General Rule: When an object is relevant to the
fact in issue, it may be exhibited to, examined or
viewed by the court. [Sec. 1, Rule 130]
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Exceptions: Court may refuse exhibition of object
evidence and rely on testimonial evidence alone if:
Exhibition is contrary to public policy, morals or
decency;
It would result in delays, inconvenience, unnecessary
expenses, out of proportion to the evidentiary value
of such object; [People v. Tavera]
Evidence would be confusing or misleading.
[People v. Saavedra]
COMPETENT
Evidence be Authenticated
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
Authentication be Made by Competent Witness
To authenticate the object, the witness must
have the capacity to identify the object as the
very thing involved in the litigation.
A witness can testify to those facts which he/she
knows of his/her personal knowledge; that is,
which are derived from his/her own perception.
[Sec. 36, Rule 130]
CATEGORIES OF OBJECT EVIDENCE
The thing itself
UNIQUE OBJECTS
Objects that have readily identifiable marks, e.g.,
a caliber 45 pistol by virtue of its serial number
OBJECTS MADE UNIQUE
Objects with no unique characteristic but are made
readily identifiable, e.g., a typical kitchen knife with
identifying marks placed on it by the witness
NON-UNIQUE OBJECTS
Objects with no identifying marks and cannot
be marked, e.g., narcotic substances
DEMONSTRATIVE EVIDENCE
Not the actual thing, rather it represents or
demonstrates the real thing, e.g., photographs,
motion pictures and recordings [Riano]
Audio, photographic and video evidence of
events, acts or transactions shall be admissible
provided they shall be:
Shown, presented or displayed to the court; and
Identified, explained or authenticated:
(a) By the person who made the recording, or
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By some other person competent to testify on
the accuracy thereof [Sec. 1, Rule 11,
Rules on Electronic Evidence]
EPHEMERAL ELECTRONIC COMMUNICATIONS
Refers to telephone conversations, text messages,
chatroom sessions, streaming audio, streaming
video, and other electronic forms of communication
the evidence of which is not recorded or retained.
[Sec. 1(k), Rule 2, Rules on Electronic Evidence]
How proven:
By the testimony of a person who was a party to
the same;
By the testimony of a person who has personal
knowledge thereof; or
In the absence or unavailability of such witnesses,
by other competent evidence [Sec. 2, Rule 11,
Rules on Electronic Evidence]
When recorded, the communication ceases to be
ephemeral and shall be proven in the same manner
as proving audio, photographic and video evidence
[Sec. 2, Rule 11, Rules on Electronic Evidence].
VIEW OF AN OBJECT OR SCENE
When an object is relevant to the fact in issue, it
may be viewed by the court. [Sec. 1, Rule 130]
Court has an inherent power to order view when there
is a need to do so. [Riano, citing Sec. 1, Rule 130]
Inspection may be made inside or outside the
courtroom. An inspection outside should be made
in the presence of the parties or at least with the
previous notice to them. [Riano, citing Moran]
CHAIN OF CUSTODY
In relation to Sec. 21 of the Comprehensive
Dangerous Drugs Act of 2002
MEANING OF CHAIN OF CUSTODY
A method of authenticating evidence which requires
that the admission of an exhibit be preceded by
evidence sufficient to support a finding that the matter
in question is what the proponent claims it to be
[Lopez v People (2008), as cited in People v Dela
Cruz (2008) and People v Agulay (2008)]
IN RELATION TO DRUG CASES
The apprehending team having initial custody
and control of the drugs shall:
Physically inventory, and
Photograph the same,
In the presence of
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Accused or the person/s from whom the
drugs were seized, or his/her
representative or counsel
Representative from the media and the
Department of Justice
Any elected public official
Who shall be required to sign the copies of the
inventory and be given a copy thereof. [Sec.
21, Art. II, R.A. 9165 or the Comprehensive
Dangerous Drugs Act of 2002]
Non-compliance with Sec. 21 of R.A. 9165,
particularly the making of the inventory and their
photographing of the drugs confiscated will not
render the drugs inadmissible in evidence. The
issue if there is non-compliance with the law is not
admissibility, but of weight evidentiary merit or
probative value. [People v Del Monte (2008)]
PURPOSE OF ESTABLISHING CHAIN OF CUSTODY
To guaranty the integrity of the physical
evidence and to prevent the introduction of
evidence which is not authentic. [Riano]
Note: A unique characteristic of narcotic substances
is that they are not readily identifiable. Hence, in
authenticating the same, a more stringent standard
than that applied to readily identifiable objects is
necessary. This exacting standard entails a chain of
custody of the item with sufficient completeness to
render it improbable for the original item to be
exchanged with another, contaminated or tampered
with [Lopez v. People (2008)]
RULE ON DNA EVIDENCE
[A.M. No. 06-11-5-SC]
MEANING OF DNA
The totality of the DNA profiles, results and other
genetic information directly generated from DNA
testing of biological samples. [Sec. 3c]
APPLICATION FOR DNA TESTING ORDER
With prior court order
The appropriate court may, at any time, either (i)
motu proprio or (ii) on application of any
person who has a legal interest in the matter
in litigation, order a DNA testing.
Such order shall issue after due hearing and
notice to the parties upon a showing of the
following:
A biological sample exists that is relevant to
the case;
The biological sample: (i) was not previously
subjected to the type of DNA testing now
requested; or (ii) was previously subjected to
UP COLLEGE OF LAW
DNA testing, but the results may require
confirmation for good reasons;
The DNA testing uses a scientifically valid
technique;
The DNA testing has the scientific potential to
produce new information that is relevant to
the proper resolution of the case; and
The existence of other factors, if any, which
the court may consider as potentially
affecting the accuracy of integrity of the
DNA testing. [Sec. 4]
Without prior court order
This Rule shall not preclude a DNA testing,
without need of a prior court order, at the behest
of any party. [Sec. 4]
POST-CONVICTION DNA TESTING
How obtained:
Without need of prior court order
Available to the prosecution or any person
convicted by final and executory judgment
Requisites:
A biological sample exists
Such sample is relevant to the case
The testing would probably result in the reversal
or modification of the judgment of conviction.
[Sec. 6]
Remedy if Results Favorable to the Convict
Convict or the prosecution may file a petition for
a writ of habeas corpus in the court of origin, CA
or SC or any member of said courts. [Sec. 10]
General Rule: If the court, after due hearing,
finds the petition meritorious, it shall reverse or
modify the judgment of conviction and order the
release of the convict. [Sec. 10]
Exception: If continued detention is justified for a
lawful cause. [Sec. 10]
ASSESSMENT AND PROBATIVE VALUE OF DNA
EVIDENCE AND ADMISSIBILITY
Factors in assessing the probative
value of DNA evidence
Chain of custody
How the biological samples were collected
How they were handled
Possibility of contamination
DNA testing methodology
Procedure followed in analyzing the samples
Advantages and disadvantages of the
procedure
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(c) Compliance with scientifically valid
standards in conducting the tests
Forensic DNA laboratory
Accreditation by any reputable standards-
setting institution
Qualification of the analyst who conducted
the tests
If not accredited, relevant experience of the
laboratory in forensic work and its credibility
Reliability of the testing result [Sec. 7]
Vallejo Standard
In assessing the probative value of DNA
evidence, courts should consider the following:
How the samples were collected
How they were handled
The possibility of contamination of the samples
The procedure followed in analyzing the
samples, whether the proper standards and
procedures were followed
Qualification of the analyst who conducted the
tests [People v. Vallejo (2002)]
RULES ON EVALUATION OF RELIABILITY OF
THE DNA TESTING METHODOLOGY
Factors that determine the reliability of the
DNA Testing Methodology
Falsifiability of the principles or methods used
Subject to peer review and publication of the
principles or methods
General acceptance of the principles or methods
by the scientific community
Existence and maintenance of standards and
controls to ensure the correctness of data
generated
Existence of an appropriate reference population
database
General degree of confidence attributed to
mathematical calculations used in
comparing DNA profiles
Significance and limitation of statistical
calculations used in comparing DNA profiles
Documentary Evidence
MEANING OF DOCUMENTARY EVIDENCE
Consist of writings or any material containing
letters, words, numbers, figures, symbols or
other modes of written expressions offered as
proof of their contents [Rule 130, Sec. 2]
UP COLLEGE OF LAW
To be deemed documentary evidence, such
writings or materials must be offered as proof of
their contents. If offered for some other purpose,
they constitute OBJECT EVIDENCE.
REQUISITES FOR ADMISSIBILITY
Relevant
Competent
Document be Authenticated
Authenticated by Competent Witness
Formally Offered in Evidence
BEST EVIDENCE RULE
MEANING OF THE RULE
When the subject of inquiry is the contents of a
document, no evidence shall be admissible other
than the original document itself. [Rule 130, Sec. 3]
APPLICABILITY
Only when the subject of inquiry is the contents
of a document [Rule 130, Sec. 3]
The BER does not apply when the issue is only
as to WON such document was actually
executed or in the circumstances relevant to its
execution. [People v Tandoy (1990)]
As applied in the case of affidavits and depositions:
Affidavits and depositions are considered as not
being the best evidence, hence not admissible if
the affiants or deponents are available as
witnesses. [Regalado citing 4 Martin, op cit., p. 82]
MEANING OF ORIGINAL DOCUMENT
One the contents of which are the subject of
inquiry
All such copies executed at or about the same
time, and with identical contents
Note: Carbon copies are deemed duplicate
originals. [People v Tan (1959)]
All such entries made and repeated in the
regular course of business, at/near the time
of the transaction [Rule 130, Sec. 4]
REQUISITES FOR INTRODUCTION OF SECONDARY
EVIDENCE (EXCEPTIONS TO BER)
When the original has been lost or destroyed, or
cannot be produced in court, without bad
faith on the offerors part
Proponent must prove due execution, loss,
destruction or unavailability of the original
(Rule 130, Sec. 5) and reasonable diligence
and good faith in the search for/attempt to
produce the original [Tan v. CA (1985)]
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ALL duplicates or counterparts must be
accounted for before using copies [De Vera
v. Aguilar (1993)]
How to prove contents:
Copy,
Recital of its contents in some authentic
document, or
Testimony of witnesses (in the order
stated) [Section 5, Rule 130]
How to prove loss/destruction: Through the
testimony of:
The person or persons who executed it;
The person before whom its execution
was acknowledged; or
Any person who was present and saw it
executed and delivered, or who, after its
execution and delivery, saw it and
recognized the signatures, or by a person
to whom the parties to the instruments had
previously confessed the execution thereof.
[Director of Lands v. CA (1971)]
When the original is in the custody or under the
control of the party against whom it is offered,
and the latter fails to produce it after
reasonable notice
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
When the original is a public record in the custody of
a public officer or is recorded in a public office
When the original is outside the jurisdiction of
the court, secondary evidence is admissible
[PNB v. Olila (98 Phil 1002)]
RULES ON ELECTRONIC
EVIDENCE [A.M. NO. 01-7-01- SC]
APPLICABILITY
The Rules on Electronic Evidence applies only to civil
actions, quasi-judicial proceedings and
administrative proceeding, not to criminal action.
[Ang v. CA (2010)]
MEANING OF ELECTRONIC DEVICE;
ELECTRONIC DATA MESSAGE
Electronic document
Information or the representation of information,
data, figures, symbols or other modes of
written expression,
Described or however represented, by which a right is
established or an obligation extinguished, or by
which a fact may be proved and affirmed,
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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.
For purposes of these Rules, the term
electronic document may be used
interchangeably with electronic data message.
Electronic data message
Information generated, sent, received or stored
by electronic, optical or similar means
PROBATIVE VALUE OF ELECTRONIC DOCUMENTS
OR EVIDENTIARY WEIGHT; METHOD OF PROOF
Factors in assessing evidentiary weight of
electronic evidence [Rule 7, Sec. 1]
In assessing the evidentiary weight of an electronic
document, the following factors may be considered:
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;
The reliability of the manner in which its
originator was identified;
The integrity of the information and communication
system in which it is recorded or stored,
including but not limited to the hardware and
computer programs or software used as well as
programming errors;
Whether the information and communication
system or other similar device was operated
in a manner that did not affect the integrity of
the electronic document, and there are no
other reasonable grounds to doubt the
integrity of the information and
communication system [Rule 7, Sec. 2];
Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that
of the party using it [Rule 7, Sec. 2]; or
Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a person
who is not a party to the proceedings and
who did not act under the control of the
party using it [Rule 7, Sec. 2]
The familiarity of the witness or the person who
made the entry with the communication and
information system;
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The nature and quality of the information which
went into the communication and information
system upon which the electronic data
message or electronic document was based; or
Other factors which the court may consider as
affecting the accuracy or integrity of the electronic
document or electronic data message.
In any dispute involving the integrity of the
information and communication system in which
an electronic document or electronic data
message is recorded or stored, the court may
consider, among others, the following factors:
Whether the information and communication
system or other similar device was operated in
a manner that did not affect the integrity of the
electronic document, and there are no other
reasonable grounds to doubt the integrity of the
information and communication system;
Whether the electronic document was recorded or
stored by a party to the proceedings with
interest adverse to that of the party using it; or
Whether the electronic document was recorded
or stored in the usual and ordinary course of
business by a person who is not a party to
the proceedings and who did not act under
the control of the party using it.
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. Salud (2005)]
Method of Proof
Affidavit of Evidence [Rule 9, Sec. 1]
Must state facts:
Of direct personal knowledge, or
Based on authentic records
Must affirmatively show the competence of
the affiant to testify on the matters
contained in the affidavit
Cross-Examination of Deponent [Rule 9, Sec. 2]
Affiant shall affirm the contents of the affidavit
in open court.
Affiant may be cross-examined as a matter of
right by the adverse party.
AUTHENTICATION OF ELECTRONIC
DOCUMENTS & ELECTRONIC SIGNATURES
[Rule 5, secs. 1 to 3; Rule 11, secs. 1 to
2, Rules on electronic evidence]
Of Electronic Documents
Burden of proving authenticity: The person seeking to
introduce the electronic document [Rule 5, Sec. 1]
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Manner of Authentication:
By evidence that it had been digitally signed by the
person purported to have signed the same;
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
By other evidence showing its integrity and
reliability to the satisfaction of the judge.
[Rule 5, Sec. 2]
Of Electronic Signatures [Rule 6, Sec. 2]
By evidence that a method or process was
utilized to establish a digital signature and
verify the same;
By any other means provided by law; or
By any other means satisfactory to the judge
ELECTRONIC DOCUMENTS & THE HEARSAY RULE
Business Records as Exception to the Hearsay Rule
What Constitute Business Records: Records of
any business, institution, association,
profession, occupation, and calling of every kind,
whether or not conducted for profit, or for
legitimate purposes [Rule 2, Sec. 1b]
Requisites
Made by electronic, optical or other similar means
Made at or near the time of or from transmission
or supply of information
Made by a person with knowledge thereof
Kept in the regular course or conduct of a
business activity,
Such was the regular practice to make the
memorandum, report, record, or data compilation
by electronic, optical or similar means
Abovementioned facts shown by the testimony
of the custodian or other qualified witnesses
[Rule 8, Sec. 1]
Exception to the Exception
Untrustworthiness of the source of information
Untrustworthiness of the method of the
preparation, transmission or storage thereof
Untrustworthiness of the circumstances of the
preparation, transmission or storage thereof
[Rule 8, Sec. 2]
AUDIO, PHOTOGRAPHIC, VIDEO & EPHEMERAL EVIDENCE
If the foregoing communications are recorded or
embodied in an electronic document, then the
provisions of Rule 5 (Authentication of
Electronic Documents) shall apply.
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EVIDENCE BAR OPERATIONS COMMISSION
PAROL EVIDENCE
MEANING OF PAROL EVIDENCE
Any evidence aliunde, whether oral or written,
which is intended or tends to vary or contradict a
complete and enforceable agreement embodied
in a document. [Regalado]
APPLICATION OF THE PAROL EVIDENCE RULE
General Rule
When the terms of an agreement (including wills)
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. [Rule 130, Sec. 9]
Exception
It does not apply when 3rd parties are involved.
[Lechugas v. CA (1986)]
WHEN PAROL EVIDENCE CAN BE INTRODUCED
When a party presents parol evidence to modify,
explain or add to the terms of a written
agreement
Ground/s for presenting parol evidence is put in
issue in the pleading
Grounds for presenting parol evidence:
An intrinsic ambiguity, mistake or imperfection in
the written agreement
Intrinsic ambiguity writing admits of two
constructions both of which are in harmony
with the language used
Note: If ambiguity is intermediate (both latent
and patent), parol evidence is admissible
[Regalado citing 20 Am. Jur 1011]
Mistake refers to mistake of fact which is
mutual to the parties [BPI v. Fidelity and
Surety, Co, 1927]
Imperfection includes inaccurate statement in
the agreement or incompleteness in the
writing or the presence of inconsistent
provisions [Regalado]
Failure of the written agreement to express the
true intent and agreement of the parties
thereto Purpose: To enable court to ascertain
the true intention of the parties [Tolentino v.
Gonzales Sy Chiam (1927)]
Validity of the written agreementParol
Evidence may be admitted to show:
True consideration of a contract
Want/Illegality of consideration
Incapacity of parties
Fictitious/simulated contract
Fraud in inducement [Regalado]
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Existence of other terms agreed to by the parties Private Public

or their successors in interest after the
execution of the written agreement. and authenticity must be execution and
proved authenticity
Collateral agreements
General Rule: Parol evidence rules apply Private documents
Exceptions: General Rule: When offered as authentic,
Collateral agreement is not inconsistent with the authentication is necessary
terms of the written contract
Collateral agreement has not been integrated in How to Prove Due Execution and Authenticity
and is independent of the written contract By anyone who saw the document executed or
Collateral agreement is subsequent to and written; OR
novatory of the written contract By evidence of the genuineness of the signature or
Collateral agreement constitutes a condition handwriting of the maker [Rule 132, Sec. 20]
precedent which determines whether the written
contract may become operative or effective Additional Modes of Authentication under
(does not apply to conditions subsequent not American Jurisprudence [Regalado]
stated in the agreement) [Regalado] Doctrine of Self-Authentication
Where the facts in writing could only have been
DISTINCTIONS BETWEEN BEST EVIDENCE RULE & known by the writer
PAROL EVIDENCE RULE Rule of Authentication by Adverse Party
Best evidence rule Parol evidence rule Where the reply of the adverse party refers to and
affirms the transmittal to him and his receipt of
Contemplates situationPresupposes that the the letter in question, a copy of which the
wherein original writing is original document is proponent is offering as evidence
not available and/oravailable in court
there is a dispute as to When evidence of authenticity of a private
whether said writing is writing is not required
the original Ancient Documents Authentication NOT
Prohibits introduction ofProhibits the varying of necessary provided that private document be:
substitutionary evidencethe terms of a written More than 30 years old;
in lieu of original agreement Produced from the custody in which it would
document regardless of naturally be found if genuine; and
whether it varies the Unblemished by any alterations or circumstances of
contents of the original suspicion. [Rule 132, Sec. 21]
Note: Other instances when authentication
Applies to all kinds of Applies only to is not required:
documents documents contractual in Writing is a public document/record [Rule
nature (Exception: Wills) 132, Sec. 19]
Can be invoked by any Can be invoked only Notarial document acknowledged,
party to an action when the controversy is proved/certified [Rule 132, Sec. 30]
regardless of whether or between the parties to When authenticity and due execution has
not such party the written agreement, been admitted [See Rule 8, Sec. 8]
participated in the writing their privies or any party That which it is claimed to be: Authentication
involved directly affected thereby not necessary [Rule 132, Sec. 20]

AUTHENTICATION AND PROOF OF DOCUMENTS How to prove genuineness of handwriting

MEANING OF AUTHENTICATION By any witness who believes it to be the
Preliminary step in showing the handwriting of such person because:
admissibility of evidence He has seen the person write;
He has seen writing purporting to be his upon
PUBLIC AND PRIVATE DOCUMENTS
which the witness has acted or been charged,
and has thus acquired knowledge of the
Private Public handwriting of such person [Rule 132, Sec. 22]
When offered as Admissible without A comparison by the witness or the court of the
authentic, due execution further proof of its due questioned handwriting, and admitted genuine
specimens thereof or proved to be genuine to the

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satisfaction of the judge [Rule 132, Sec.
22] (3) Expert evidence [Rule 130, Sec. 49]
Public documents
Kinds of public documents
Written official acts or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines or of a foreign country
Public records, kept in the Philippines, of private
documents required by law to be entered therein
Notarial documents (except last wills and
testaments) [Rule 132, Sec. 19]
Proof of public documents
Records of Official Acts [Rule 132, Sec. 24]
By an official publication thereof; or
By an attested copy of the document
Note: Documents without documentary stamp affixed
thereto, unless specifically exempted by law, may not
be admitted or used in evidence in any court until the
requisite stamp shall have been affixed. [Sec. 201,
NIRC] Also, there is a presumption that the requisite
stamps have been affixed in the original copy when
only the carbon copies of the same are available.
[Mahilum v CA (1966)]
ATTESTATION OF A COPY
[RULE 132, SEC. 25]
Must be made by the officer having the legal
custody of the record, or by his deputy
Must state that the copy is a correct copy of the
original or a specific part thereof, as the case
may be
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
If the record is not kept in the Philippines, attested
copy must be accompanied with a certificate, which
May be made by a secretary of the
embassy/legation, consul-general, consul, vice-
consul, consular agent or any officer in the
foreign service of the Philippines stationed in
the foreign country in which the record is kept;
Must state that such officer has the custody; and
Must be authenticated by the seal of his office.
PROOF OF LACK OF RECORD
[RULE 132, SEC. 28]
Written statement
Signed by an officer having the custody of an
official record or by his deputy
Must state that after diligent search, no
record or entry of a specified tenor is
found to exist in the records of his office
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EVIDENCE BAR OPERATIONS COMMISSION
Certificate
Accompanying the written statement
Must state that that such officer has the
custody
WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD
[RULE 132, SEC. 29]
Want of jurisdiction in the court or judicial officer;
Collusion between the parties; OR
Fraud in the party offering the record, with
respect to the proceedings
PROOF OF NOTARIAL DOCUMENTS
Notarial Documents (except last wills and
testaments) [Rule 132, Sec. 30]
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.
Such notarized documents are evidence, even
against 3rd persons, of the facts which gave
rise to their execution and of the date of
execution. [Rule 132, Sec. 23]
ALTERATIONS IN A DOCUMENT
[RULE 132, SEC. 3]
Requisites
Document is being presented as genuine;
Document has been altered and appears to
have been altered;
Alteration was made after execution of the
document; and
Alteration is in a part material to the question in
dispute
What to Show about the Alteration
Was made by another, without his concurrence;
Was made with the consent of the parties
affected by it;
Was otherwise properly or innocently made; or
Did not change the meaning or language of the
instrument.
Whose Burden of Proof
Party producing the document must account for
the alteration. Failure to do so would result in the
inadmissibility of evidence.
DOCUMENTARY EVIDENCE IN AN UNOFFICIAL LANGUAGE
[RULE 132, SEC. 33]
NOT admissible unless accompanied by a
translation into English or Filipino.
Parties or their attorneys are directed to have
the translation prepared before trial.
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Effect if Witness Has Interest in the Subject Matter

Testimonial Evidence A person is not disqualified (except if covered

by the Dead Mans statute). The effect is only
on credibility, but not competency.
WITH RESPECT TO A WITNESS
Relationship
QUALIFICATIONS OF A WITNESS Mere relationship does not impair credibility. To
[RULE 130, SEC. 20] warrant rejection, it must be clearly shown:
All persons who can perceive, and, perceiving, Testimony was inherently improbable or defective
can make their known perception to others, may Improper/evil motives had moved the witness
be witnesses. to incriminate falsely
Religious/political belief, interest in the outcome BY REASON OF MENTAL INCAPACITY OR IMMATURITY
of the case, or conviction of a crime unless Mental Incapacity [Rule 130, Sec. 21a]
otherwise provided by law, shall not be ground Requisites:
for disqualification. Person must be incapable of intelligently making
known his perception to others
WHEN DETERMINED His incapability must exist at the time of his
At the time the said witness are produced for production for examination
examination/at the taking of their depositions
A mental retardate is not for this reason alone
Note: With respect to children of tender years, disqualified from being a witness. Acceptance of
competence at the time of the occurrence is also his testimony depends on its nature and
taken into account. credibility or, otherwise put, the quality of his
perceptions and the manner he can make them
IN CASE PERSON IS CONVICTED OF A CRIME known to the court. [People v. Salomon (1993)]
General Rule: Not disqualified
Exceptions: If the person is convicted of: Immaturity [Rule 130, Sec. 21b]
Falsification of documents, Requisites:
Perjury, or Mental maturity of the witness (child) must
False testimony render him incapable of perceiving the facts
respecting which he is examined.
COMPETENCY VS. CREDIBILITY OF A WITNESS He is incapable of relating his perception
Competency Credibility truthfully.

A matter of law and of Has nothing to do with Incapacity must occur at the time the witness
rules the law or rules perceives the event.
Refers to the basic Refers to the weight and
qualifications of a witness trustworthiness or Unsound mind
as his capacity to perceive reliability of the testimony (a) Includes any mental aberration
and his capacity to (organic/functional), induced by
communicate his drugs/hypnosis
perception to others Not disqualified as long as the witness can
convey ideas by words/signs
DISQUALIFICATIONS OF A WITNESS
Deaf-Mutes
Disqualification by reason of mental incapacity
Not disqualified when they can understand and
or immaturity;
appreciate sanctity of oath, can comprehend
Disqualification by reason of marriage;
facts that they are going to testify to and
Disqualification by reason of death or insanity of
communicate through a qualified interpreter
adverse party;
Disqualification by reason of privileged
Child Witness
communication;
Must have capacity for observation,
Disqualification by reason of parental and filial
recollection and communication
privilege
BY REASON OF MARRIAGE
Also known as Marital Disqualification Rule or
Spousal Immunity

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Requisites
Marriage is valid and existing as of the time of
the offer of testimony.
Other spouse is a party to the action.
Exceptions [Rule 130, Sec. 22]
Spouse MAY testify for or against the other even
without the consent of the latter:
In a civil case by one against the other
In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants.
Rationale [Alvarez v. Ramirez (2005)]
There is identity of interests between husband
and wife;
If one were to testify for or against the other,
there is a consequent danger of perjury;
Policy of the law is to guard the security and
confidence of private life, and to prevent
domestic disunion and unhappiness; and
Where there is want of domestic tranquility, there
is danger of punishing one spouse through
the hostile testimony of the other.
If the husband imputed the conviction to the
wife, then marital disqualification is waived.
If the spouse is a co-accused, he/she cannot be
called as an adverse party witness under this Rule.
BY REASON OF DEATH OR INSANITY OF ADVERSE PARTY
Also known as Dead Mans Statute or
Survivorship Rule
Requisites [Rule 130, Sec. 23]
Defendant is the executor or administrator or a
representative of the deceased or of the
person of unsound mind;
Suit is upon a claim by the plaintiff against the
estate of said deceased or person of
unsound mind;
Witness is the plaintiff, or an assignor of that
party, or a person in whose behalf the case is
prosecuted; and
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.
When the Dead Mans Statute Is Inapplicable
The survivor may testify against the estate of the
deceased where the latter was guilty of fraud
which fraud was established by evidence
other than the testimony of the survivor. [Ong
Chua v. Carr (1929)]
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EVIDENCE BAR OPERATIONS COMMISSION
He may also testify where he was the one sued by the
decedents estate since the action then is not
against the estate. [Tongco v. Vianzon (1927)]
He may likewise testify where the estate had
filed a counterclaim against him or where the
estate cross-examined him as to matters
occurring during the lifetime of the deceased.
[Goi v. CA (1986)]
No application to a mere witness
No application to nominal parties, officers and
stockholders against corporations
Cannot be used in a negative testimony
If the testimony is offered to prove a claim less
than what is written
If the defendant did not object
When there is an existence of fraud
When the party cross-examines the witness
Rationale
To discourage perjury and protect the estate
from fictitious claims
Note: On applicabilityThe DMS is still applicable
even if the property has already been judicially
adjudicated to the heirs regardless whether the
deceased died before or after the suit.
PRIVILEGED COMMUNICATIONS
Husband and wife (marital privilege) [Rule 130,
Sec. 24a]
Attorney and client [Sec. 24(b), Rule 130]
Physician and patient [Sec. 24(c), Rule 130]
Priest and penitent [Sec. 24(d), Rule 130]
Other privileged communication not in the ROC
Newsmans privilege
Information in conciliation proceedings
Data Privacy Act
Parental and filial privilege rule [Sec. 25, Rule 130]
Husband and wife
Rationale
Confidential nature of the privilege; to
preserve marital and domestic relations
Requisites
There must be a valid marriage between the
husband and wife;
There is a communication received in
confidence by one from the other; and
The confidential communication was received
during the marriage.
A widow of a victim allegedly murdered may testify
as to her husbands dying declaration as to how he
died the since the same was not intended to be
confidential. [US v. Antipolo (1918)]
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When the communication was intended for an

When Not Applicable
When the communication was not intended to
be kept in confidence
When the communication was made prior to the
marriage
When the communication was overheard/comes
into the hands of a third party whether legally
or not
Waiver of the privilege
In a civil case by one against the other
In a criminal case for a crime committed by one
against the other or the latter's direct
descendants/ascendants.
unlawful purpose
When the communication was received from third
persons not acting in behalf/as agents of clients
When the communication was made in the
presence of third parties stranger to the
attorney-client relationship
When the communication has something to do with
a clients contemplated criminal act [People v.
Sandiganbayan (1997)] [Regalado]
General Rule: The attorney-client privilege may
not be invoked to refuse to divulge the identity of
the client.

In Contrast to Marital Disqualification Exceptions [Regala v. Sandiganbayan (1996)]:

Marital Disqualification Marital Privilege When a strong probability exists that revealing
the name would implicate that person in the
One spouse should be a Neither of the spouses very same activity for which he sought the
party to the case; needs to be a party; lawyers advice;
When disclosure would open the client to liability;
Applies only if the Does not cease even after
When the name would furnish the only link that
marriage is existing at the the marriage is dissolved;
would form the chain of testimony necessary
time the testimony is and
to convict.
offered; and
Constitutes a total Prohibition is limited to Physician and patient
prohibition on any testimony on confidential Requisites
testimony for or against communications between Physician is authorized to practice medicine,
the spouse of the witness. spouses. surgery or obstetrics;
Information was acquired or the advice or
Attorney and client treatment was given by him in his
Requisites professional capacity for the purpose of
There must be a communication made by the treating and curing the patient;
client to the attorney or an advice given by Information, advice or treatment, if revealed, would
the attorney to his client; blacken the reputation of the patient; and
The communication must have been given in Privilege is invoked in a civil case, whether or
confidence; and not the patient is a party thereto.
The communication or advice must have been
given either in the course of the professional Where Applicable:
employment or with a view to professional All forms of communication, advice or treatment
employment. Information acquired by the physician from his
personal observations and examination of the
Attorneys secretary, stenographer, or clerk are patient
also covered by the rule and cannot be examined
concerning any fact the knowledge of which has Physician-patient relationship need not be
been acquired in such capacity without the consent entered into voluntarily.
of the client AND their employer.
When Not Applicable:
When Not Applicable Communication was not given in confidence
When the communication made was not for the Communication was irrelevant to the
purpose of creating relationship (even if professional employment
afterwards he become counsel) Communication was made for an unlawful
When the communication was intended to be purpose
made public Communication was intended for the
When the communication was intended to be commission/concealment of a crime
communicated to others Communication was intended to be made
public/divulged in court

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When there was a waiver
When the doctor was presented as an expert
witness and only hypothetical problems were
presented to him. [Lim v. CA (1992)]
Priest and penitent
Requisites
Confession was made to, or advice given by him
pursuant to a religious duty enjoined in the
course of discipline of the sect or
denomination of the priest.
Confession or advice was confidential and
penitential in character.
Public officers
Requisites
Communication was made to the public officer in
official confidence; and
Public interest would suffer by the disclosure of
such communication.
Elements of presidential communications privilege
Must relate to a quintessential and non-
delegable presidential power;
Must be authored or solicited and received by
a close advisor of the President or the
President himself; and
Privilege may be overcome by a showing of
adequate need such that the information sought
likely contains important evidence and by
the unavailability of the information
elsewhere. [Neri v. Senate (2008)]
Other Privileged Communication not in the ROC:
Newsmans Privilege [RA 53, as amended by RA
1477] General Rule: Publisher, editor or duly accredited
reporter cannot be compelled to reveal the source of any
news report or information related in confidence
Exception: Court/House/Committee in Congress
finds that such revelation is demanded by
security of the State
Information in Conciliation Proceedings
All information and statements made at conciliaton
proceedings shall be treated as privileged
communications. [Art. 233, Labor Code]
Data Privacy Act
Personal information controllers may invoke the
principle of privileged communication over
privileged information that they lawfully control
or process. Subject to existing laws and
regulations, any evidence gathered on privileged
information is inadmissible. [Sec. 15, RA 10173]
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EVIDENCE BAR OPERATIONS COMMISSION
Parental and filial privilege rule
General Rule: A person cannot be compelled to
testify against his parents (parental privilege),
other direct ascendants, children or other direct
descendants (filial privilege).
Exception [Art. 215, Family Code]: Descendant
may be compelled to give his testimony:
In a criminal case; and
When such testimony is indispensable in a crime
committed against said descendant; or
In a crime committed by one parent against the
other.
EXAMINATION OF WITNESSES
RIGHTS AND OBLIGATIONS OF A WITNESS
[RULE 132, SEC. 3]
Obligation of a witness
To answer questions, although his answer may
tend to establish a claim against him.
Rights of a witness
To be protected from irrelevant, improper, or
insulting questions, and from harsh or
insulting demeanor
Not to be detained longer than the interests of
justice require
Not to be examined except only as to matters
pertinent to the issue
Not to give an answer which will tend to subject
him to a penalty for an offense unless
otherwise provided by law, e.g., Sec. 8, RA
1379 and other immunity statutes which grant
the witness immunity from criminal
prosecution for offenses admitted
Not to give an answer which will tend to degrade his
reputation, unless it to be the very fact at issue or
to a fact from which the fact in issue would be
presumed. But a witness must answer to the fact
of his previous final conviction for an offense.
One-Day Examination of Witness
Rule [AM 03-1-09-SC] [2009 BAR]
A witness has to be fully examined in one (1)
day only. It shall be strictly adhered to subject
to the courts' discretion during trial on
whether or not to extend the direct and/or
cross-examination for justifiable reasons.
ORDER IN THE EXAMINATION OF AN INDIVIDUAL WITNESS
[RULE 132, SEC. 4]
Direct examination
Cross examination
Re-direct examination
Re-cross examination
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Direct Examination [Rule 132,
Sec. 4] Who conducts: Proponent
Why conducted: Examination-in-chief of a
witness by the party presenting him, on
the facts relevant to the issue.
Cross Examination [Rule 132,
Sec. 6] Who conducts: Opponent
When conducted: Upon the termination of the
direct examination
Why conducted: To test the witnesss accuracy
and truthfulness, and freedom from interest
or bias, or the reverse, and to elicit all
important facts bearing upon the issue
What matters are covered: Any matters
stated in the direct examination, or
connected therewith
Re-Direct Examination [Rule 132,
Sec. 7] Who conducts: Proponent
When conducted: After cross-examination
of the witness
Why conducted: To explain or supplement his
answers given during the cross-examination
What matters are covered: Those stated in
the cross-examination, and matters not
dealt with, if allowed by the Court
Re-Direct Examination [Rule 132,
Sec. 7] Who conducts: Opponent
When conducted: Upon the conclusion of
the re-direct examination
What matters are covered: Those stated in
his re-direct examination, and also on
such other matters as may be allowed by
the court in its discretion.
Recalling the Witness [Rule 132,
Sec. 9] Who conducts: Either party
When conducted: After both sides have
concluded the examination of a witness,
and with leave of court
Why conducted:
Particularly identified material points were
not covered in cross-examination
Particularly described vital documents
were not presented to the witness
Cross-examination was conducted in so
inept a manner as to result in a virtual
absence thereof [People v. Rivera (1991)]
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LEADING AND MISLEADING QUESTIONS
[RULE 132, SEC. 10]
Questions not allowed
Misleading Questions [Sec. 10, Rule 132]
Questions that assume as true a fact not yet
testified to by the witness, or contrary to
that which he has previously stated.
NEVER allowed
Leading Questions
Questions that suggest to the witness the
answer, which the examining party desires.
General Rule: Leading questions are not allowed.
Exceptions:
On cross examination;
On preliminary matters;
When there is a difficulty is 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;
On an unwilling or hostile witness;
A witness may be considered hostile only
when declared by the court, upon adequate
showing of his: [Sec. 12, Rule 132]
Adverse interest;
Unjustified reluctance to testify;
His having misled the party into calling him
to the witness stand.
On a witness who is an adverse party or an
officer/director or managing agent of a
public/private corporation or of a
partnership/association which is an adverse
party.
METHODS OF IMPEACHMENT OF ADVERSE
PARTYS WITNESS
[RULE 132, SEC. 11]
By contradictory evidence;
By evidence that his general reputation for truth,
honesty or integrity is bad;
By evidence that he has made at other times
statements inconsistent with his present
testimony.
How the Witness Is Impeached by
Evidence of Inconsistent Statements
(Laying the Predicate) Elements
The alleged statements must be related to the
witness including the circumstances of the
times and places and the persons present. If
the statements are in writing they must be
shown to him.
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Witness may be asked whether he made such
statements and also to explain them if he
admits making those statements.
Purpose
To allow the witness to admit or deny the prior
statement and afford him an opportunity to
explain the same.
Evidence of the good character of a witness
Evidence of the witness good character is not
admissible until such character has been
impeached [Sec. 14, Rule 132]
JUDICIAL AFFIDAVIT RULE
[AM 12-8-8-SC]
Scope [Sec. 1]
Applies to all actions and proceedings, and
incidents requiring the reception of evidence before
the courts, quasi-judicial bodies, whose rules of
procedure are subject to disapproval of the
Supreme Court, insofar as their existing rules of
procedure contravene the provisions of this Rule,
and investigating officers and bodies authorized by
the SC to receive evidence, including the IBP
Submission of Judicial Affidavits and Exhibits
in Lieu of Direct Testimonies. [Sec. 2]
The parties shall file with the court and serve on
the adverse party, personally or by licensed
courier service, not later than five days before
pre-trial or preliminary conference or the
scheduled hearing with respect to motions and
incidents, the following:
The judicial affidavits of their witnesses, which
shall take the place of such witnesses' direct
testimonies; and
The parties' documentary or object evidence,
if any, shall be marked and attached to the
judicial affidavits
Should a party or a witness desire to keep the original
document or object evidence in his possession, he
may, after the same has been identified, marked
as exhibit, and authenticated, warrant in his
judicial affidavit that the copy or reproduction
attached to such affidavit is a faithful copy or
reproduction of that original. In addition, the party
or witness shall bring the original document or
object evidence for comparison during the
preliminary conference with the attached copy,
reproduction, or pictures, failing which the latter
shall not be admitted
This is without prejudice to the introduction of
secondary evidence in place of the original when
allowed by existing rules.
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Content [Sec. 3]
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:
The name, age, residence or business address,
and occupation of the witness;
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;
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;
Questions asked of the witness and his
corresponding answers, consecutively
numbered, that:
Show the circumstances under which the
witness acquired the facts upon which he
testifies;
Elicit from him those facts which are relevant to
the issues that the case presents; and
Identify the attached documentary and object
evidence and establish their authenticity;
The signature of the witness over his printed
name; and
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.
The judicial affidavit shall also contain a sworn
attestation executed by the lawyer who
conducted or supervised the examination of the
witness, to the effect that:
He faithfully recorded or caused to be recorded the
questions he asked and the corresponding
answers that the witness gave; and
Neither he nor any other person then present or
assisting him coached the witness regarding
the latter's answers. [Sec. 4]
A false attestation shall subject the lawyer
mentioned to disciplinary action, including
disbarment. [Sec. 4]
How to Offer [Sec. 6]
State the purpose of such testimony at the
start of the presentation of the witness
Objection [Sec. 6]
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
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Offer and Objections to Exhibits WITH RESPECT TO THE TESTIMONY

[Sec. 8] Offer
When made: Upon the termination of the ADMISSIONS & CONFESSIONS
testimony of his last witness ADMISSIONS OF A PARTY
Admission
How made: Party shall immediately make an oral Any statement of fact made by a party against
offer of evidence of his documentary or object his interest/unfavorable to the conclusion for
exhibits, piece by piece, in their chronological which he contends/is inconsistent with the facts
order, stating the purpose or purposes for alleged by him
which he offers the particular exhibit.
It must:
Objection Involve matters of fact, not of law
Made after each piece of exhibit is offered Be categorical and definite
How made: Party shall state the legal ground for Knowingly and voluntarily made
his objection, if any, to its admission.
By Act, Declaration or Omission
The court shall immediately make its ruling Requisites for Admissibility
respecting that exhibit. Made by a party;
Outside of court;
Note: It is sufficient that the exhibits are simply Relates to a relevant fact; and
cited by their markings during the offers, the Is against admitters interest. [Sec. 26, Rule 130]
objections, and the rulings, dispensing with the
description of each exhibit. Effect
May be given in evidence against the admitter
Effect of Non-compliance [Sec. 10] [Sec. 26, Rule 130]
Party who fails to submit is deemed to have
waived the submission of the same. The court, Note: Flight from justice is an admission by
however, may allow, only once, late submission, conduct and circumstantial evidence of
provided the delay is for a valid reason and the consciousness of guilt. [US v. Sarikala (1918)]
defaulting party pays a fine.
Rationale
Court shall not consider affidavit of witness who No man would make any declaration against himself
fails to appear at the scheduled hearing. unless it is true. [Republic v. Bautista (2007)]
Counsel who failed to appear shall be deemed
to have waived his clients right to cross- As Distinguished from Judicial Admissions
examine the witnesses there present.
Judicial Extrajudicial
Judicial affidavits that do not conform with the
Made in connection with Any other admission [Rule
requirements cannot be admitted as evidence.
judicial proceeding in 130, Secs. 26 and 32]
which it is offered [Rule
Issuance of Subpoena [Sec. 5] 129, Sec. 4]
If the government employee or official, or the
requested witness, who is neither the witness of
the adverse party nor a hostile witness, By Silence
unjustifiably declines to execute a judicial affidavit Requisites for Admissibility:
or refuses without just cause to make the relevant When silence is deemed an admission: [People
books, documents, or other things under his v. Paragsa (84 SCRA 105)]
control available for copying, authentication, and Person heard or understood the statement;
eventual production in court, the requesting party That he was at a liberty to make a denial;
may avail himself of the issuance of a subpoena ad That the statement was about a matter affecting his
testificandum or duces tecum under Rule 21 of the rights or in which he was interested and which
Rules of Court. The rules governing the issuance naturally calls for a response;
of a subpoena to the witness in this case shall be That the facts were within his knowledge; and
the same as when taking his deposition except that That the fact admitted from his silence is
the taking of a judicial affidavit shall be understood material to the issue
to be ex parte.

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UP COLLEGE OF LAW
When not applicable:
Statements adverse to the party were made in the
course of an official investigation, neither asked to
reply nor comment[Sec. 2(b), R.A. 7438]
Party had justifiable reason to remain silent, ex.
Acting on advice of counsel [Regalado]
CONFESSIONS
A declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
necessarily included therein [Sec. 33, Rule 130]
Requisites
Express and categorical acknowledgement of
guilt
Facts admitted constitutive of a criminal offense
Given voluntarily
Intelligently made, realizing the importance or
legal significance of the act
No violation of Secs. 12 and 17, Art. III of the
Constitution [Regalado]
If the accused admits having committed the act
in question but alleges a justification therefore,
the same is merely an admission. [Ladiana v.
People (393 SCRA 419)]
Any confession, including a re-enactment,
without admonition of the right to silence and to
counsel, and without counsel chosen by the
accused is inadmissible in evidence. [People v.
Yip Wai Ming (1996)]
General Rule: An extra-judicial confession made
by an accused is not a sufficient ground for
conviction. [Sec. 3, Rule 133]
Exception: When corroborated by evidence of
the actual commission of a particular crime
(corpus delicti). [Sec. 3, Rule 133]
Effect of Extrajudicial Confession of Guilt:
General Rule: Not sufficient for conviction [Sec,
3, Rule 133]
Exception: Sufficient if corroborated by evidence
of corpus delicti [Sec. 3, Rule 133]
Corpus Delicti
Substance of the crime; the fact that a crime has
actually been committed [People v. Gutierrez
(258 SCRA 70); People v. De Leon (2009)]
As Distinguished from Admissions of a Party
Admission Confession
Merely a statement of Acknowledgment of guilt
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EVIDENCE BAR OPERATIONS COMMISSION
Admission Confession
fact or liability
Maybe express or tacit Must be express
Maybe made by 3rd Can be made only by the
parties, and in certain party himself, and
cases, admissible against admissible against his co-
a party accused in some
instances
RES INTER ALIOS ACTA RULE
With Respect to Admissions by a Third Party
General Rule: Inadmissible. The rights of a party
cannot be prejudiced by an act, declaration or
omission of another. (1st Branch) [Sec. 28, Rule 130]
Exceptions:
Partners or agents admission [Sec. 29, Rule 130]
Co-Conspirators admission [Sec. 30, Rule 130]
Admission by privies [Sec. 31, Rule 130]
Partners or Agents Admission
The requisites are the following:
Act or declaration must be within the scope of
the authority of the partner or agent;
Act or declaration must have been made during the
existence of the partnership or agency; and
Partnership or agency must be shown by
evidence other than the act or declaration.
Co-Conspirators Admission
The requisites are the following:
Act or declaration must relate to the conspiracy;
It must have been made during the existence of
the conspiracy; and
Conspiracy must be shown by evidence other
than such act/declaration.
Existence of the conspiracy may be inferred from
the acts of the accused. [People v. Belen (1963)]
Rule 130, Sec. 30 applies only to extra-judicial
statements, not to testimony given on the stand.
[People v. Serrano (1959)]
As regards extrajudicial admissions after
termination of conspiracy, before trial. General
Rule: These admissions are not admissible.
Exceptions:
Made in the presence of the co-conspirator who
expressly/impliedly agreed (tacit admission)
Facts in admission are confirmed in the
independent extrajudicial confessions made
by the co-conspirators after apprehension
UP COLLEGE OF LAW
As a circumstance to determine credibility of
witness
Circumstantial evidence to show the probability of
the latters participation [Regalado]
Doctrine of Interlocking confessions
[Regalado]. Extrajudicial statements of co-
accused may be taken into consideration in
judging testimony of the witness, provided:
Statements are made by several accused
Identical in all material respects
There could have been no collusion
They are admissible as:
Circumstantial evidence to show probability of
participation
Corroborative evidence if it is clear from other
facts and circumstances that other persons
had participated in the perpetration of the
crime charged and proved
Admission by Privies
Privies. Persons who are partakers or have
an interest in any action or thing, or any relation
to another [Riano citing Blacks Law Dictionary]
The requisites are the following:
There must be an act, declaration or an
omission by a predecessor-in-interest;
Act, declaration or omission must have occurred
while he was holding (not after) the title to the
property; and
Act, declaration or omission must be in relation
to the property.
With Respect to Similar Acts
General Rule: Evidence that one did or did not do a
certain thing at one time is NOT ADMISSIBLE to prove
that he did or did not do the same or similar thing at
another time. (2 nd
Branch) [Sec. 34, Rule 130]
Exceptions: Said evidence may be received to prove:
Specific intent or knowledge;
Identity;
Plan, system, or scheme;
Habit;
Custom, usage and the like.
HEARSAY RULE
MEANING OF HEARSAY
Out-of-court statement
Offered by the witness in court to prove the truth
of the matters asserted by the statement
Any evidence, whether oral or documentary, if its
probative value is not based on personal knowledge
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EVIDENCE BAR OPERATIONS COMMISSION
of witness but on knowledge of some other
person not on witness stand [Regalado 11th ed.]
Doctrine of Independently Relevant Statements
Statements or writings attributed to a person not on
the witness stand, which are being offered not to
prove the truth of the facts stated therein, but only
to prove that such were actually made.
They are called as such because the statements are
admissible for some relevant reason independent of
their truth or falsity [Riano citing Am Jur]
These are NOT covered by the hearsay rule
[People v. Cusi (1965)]
REASON FOR EXCLUSION OF HEARSAY EVIDENCE
Lack of opportunity to cross-examine the outside
declarant
GENERAL RULE ON HEARSAY
A witness can testify only as to those facts which he
knows of his personal knowledge, or those derived
from his own perception. [Rule 130, Sec. 36]
The hearsay rule is not limited to oral testimony
or statements; it applies to written, as well as
oral statements. [Consunji v. CA (2001)]
If a party does not object to hearsay evidence,
the same is admissible, as a party can waive his
right to cross-examine [People v. Ola (1987)]
Repeated failure to cross-examine is an implied
waiver [Savory Luncheonette v. Lakas ng
Manggagawang Pilipino (1975)]
EXCEPTIONS
Dying declaration
Declaration against interest
Act or declaration against pedigree
Family reputation or tradition regarding pedigree
Common reputation
Part of the res gestae [Sec. 42, Rule 130]
Entries in the course of business
Entries in official records
Commercial lists and the like
Learned treaties
Testimony or deposition at a former trial
Exception to the hearsay rule on examination of
child witness
Dying Declaration
Also known as antemortem statement or
statement in articulo mortis [Sec. 37, Rule 130]
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Requisites for Admissibility

Declaration is one made by a dying person; Inability to testify means that the person is dead,
Declaration was made under the consciousness mentally incapacitated or physically incompetent.
of an impending death; Mere absence from the jurisdiction does not make
Declaration refers to cause and surrounding him ipso facto unavailable. [Fuentes v. CA (1996)]
circumstances of such death;
Declaration is offered in any case wherein his Declaration against interest made by the
death is the subject of inquiry; deceased, or by one unable to testify, is admissible
Declarant is competent as a witness had he even against the declarants successors-in-interest
survived [Geraldo v People (2008)]; and or even against third persons [Sec. 38, Rule 130]
Declarant should have died. [People v.
Macandog (2001)] As Distinguished from Admissions
Admission Declaration against
Rationale for Admissibility interest
As a general rule, when a person is at the point
of death, every motive to falsehood is silenced. Admitter is a party Declarant is neither a
[People v Bacunawa (2001)] himself, or in privity with party nor in privity with a
such party; party;
The law considers the point of death as a situation so Admissible whether or Admissible only when
solemn and awful as creating an obligation equal to not admitter is available declarant is unavailable
that which is imposed by an oath administered by the as a witness as a witness;
court. [People v. Cerilla (539 SCRA 251)] Can be made any time, Must have been made
even during trial; ante litem motam;
The foreboding may be gleaned from surrounding
circumstances, such as the nature of the Admissible only against Admissible even against
declarants injury and conduct that would justify a the admitter; and 3rd persons; and
conclusion that there was consciousness of Admissible NOT as an Admissible as an
impending death. [People v. Latayada (2004)] If the exception to any rule exception to the hearsay
declarants statement is made under rule
consciousness of impending death, a subsequent
belief in recovery before his actual death does not
bar admissibility of his statement [Riano citing Act or Declaration Against
People v. Black (1979), 96 CA3d 846, 158 CR 449] Pedigree Meaning of
Pedigree
Objections to the dying declaration: May be Relationship;
premised on any of the requisites for its Family genealogy;
admissibility embodied in Sec. 37 of Rule 130. Birth;
Counsel who wants a dying declaration excluded Marriage;
must have to deal with the primary question of Death;
whether or not the evidentiary foundations for the Dates when these facts occurred;
introduction where met. [Riano]
Places where these facts occurred;
Names of relatives; and
Dying declarations are admissible in favor of the Facts of family history intimately connected with
defendant as well as against him. [US v. pedigree. [Sec. 39, Rule 130]
Antipolo (37 Phil 726)]
Requisites for Admissibility
Declaration Against Interest Declarant is dead or unable to testify;
Requisites for Admissibility Declarant must be related by birth or marriage to
Declarant is dead or unable to testify; the person whose pedigree is in issue;
Declaration relates to a fact against the interest Declaration was made before the controversy;
of the declarant; and
At the time he made said declaration, declarant Relationship between the declarant and the
was aware that the same was contrary to his person whose pedigree is in question must
interest; and be shown by evidence other than such
Declarant had no motive to falsify and believed declaration. [Sec. 39, Rule 130]
such declaration to be true [Sec. 38, Rule
130; Ong v. Court of Appeals (1980)]

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Family Reputation or Tradition Regarding
Pedigree Requisites for Admissibility
Witness must be a member, by consanguinity or
affinity, of the same family as the subject; and
Such reputation or tradition must have existed in that
family ante litem motam. [Sec. 40, Rule 130]
Other Admissible Evidence
Entries in family bibles or other family books;
Charts;
Engravings on rings;
Family portraits and the like [Sec. 40, Rule 130]
This enumeration, by ejusdem generis, is limited
to "family possessions," or those articles which
represent, in effect, a family's joint statement of
its belief as to the pedigree of a person. [Jison v.
CA (1998)]
A persons statement as to his date of birth and
age, as he learned of these from his parents or
relatives, is an ante litem motam declaration of a
family tradition. [Gravador v. Mamigo (1967)]
Common Reputation
Requisites for Admissibility
Reputation pertains to:
Facts of public or general interest more than
30 years old,
Marriage, or
Moral character
Common reputation existed ante litem motam.
[Sec. 41, Rule 130]
Other Admissible Evidence
Monuments
Inscriptions in public places [Sec. 41, Rule 130]
Pedigree may be established by reputation in
the family, but NOT in the community. [Rule 130,
Secs. 40-41]
Common reputation is hearsay like any other
exception to the hearsay rule, but is admissible
because of trustworthiness. [Riano citing Reg. v.
Bedforshire, 4 E & B 535, 82 ECL 535, 542]
Part of the Res Gestae [Sec. 42,
Rule 130] Admissible Statements
Spontaneous statements - Statements made by a
person while a startling occurrence is taking place
or immediately prior or subsequent thereto, with
respect to the circumstances thereof
Principal act be a startling occurrence
Statement made before declarant had
opportunity to contrive [Talidano v. Falcom
Maritime (2008)]
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EVIDENCE BAR OPERATIONS COMMISSION
Statement refer to occurrence in question
and attending circumstances (Sec. 42,
Rule 130) or that the statements must
concern the occurrence in question and its
immediate attending circumstances
[Talidano v. Falcom Maritime (2008)]
Verbal acts - Statements, which accompany an
equivocal act material to the issue and give it
a legal significance
Principal act must be equivocal
Act must be material to the issue
Statement must accompany the equivocal act
Statement gives legal significance to
equivocal act [Talidano v. Falcom Maritime
(2008)]
Must be made at the time, not after, the
equivocal act was being performed
A dying declaration can be made only by the
victim after the attack while a statement as part
of the res gestae may be that of the killer himself
after or during the killing. [People v. Reyes]
A statement not admissible as dying declaration
because it was not made under consciousness
of impending death, may still be admissible as
part of res gestae if made immediately after the
incident. [People v. Reyes]
Entries in the course of business
Requisites for Admissibility [Sec. 43, Rule 130]
Entries were made at, or near the time of the
transactions referred to;
Such entries were made in the ordinary or
regular course of business or duty;
Entrant was in a position to know the facts
stated in the entries;
Entrant did so in his professional capacity, or in
the performance of duty and in the regular
course of business; and
Entrant is now dead or unable to testify.
[Northwest Airlines v. Chiong (2008)]
If the entrant is available as a witness, the
entries will not be admitted, but they may
nevertheless be availed of by said entrant as a
memorandum to refresh his memory while
testifying on the transactions reflected therein.
[Cang Yui v. Gardner (1916)]
Business records are exempt from the hearsay
rule. [Rule 8, Sec. 1, Rules on Electronic Evidence]
Entries in the payroll, being entries in the course
of business, enjoy the presumption of regularity
[Sapio v. Undaloc Construction (2008)]
UP COLLEGE OF LAW
Entries in official records
Requisites for Admissibility
Entries were made by a public officer in the
performance of his duties or by a person in
the performance of a duty specially enjoined
by law [Sec. 44, Rule 130];
Entrant must have personal knowledge of the facts
stated by him or such facts acquired by him
from reports made by persons under a legal
duty to submit the same [Salmon, Dexter &
Co. v. Wijangco (1924)]; and
Entries were duly entered in a regular manner in
the official records.
Entries in official records, just like entries in the
course of business, are merely prima facie evidence
of the facts therein stated. [secs. 43-44, Rule 130]
Entries in a police blotter are not conclusive proof of
the truth of such entries. [People v. Cabuang (1993)]
Baptismal certificates or parochial records of
baptism are not official records. [Fortus v.
Novero (1968)]
Commercial lists and the like
Requisites for Admissibility [Sec. 45, Rule 130]
Such statements are contained in a list;
Compilation is published for use by persons
engaged in that occupation; and
It is generally used and relied upon by them.
Learned treaties
Requisites for Admissibility [Sec. 46, Rule 130]
Published treatise, periodical or pamphlet is on a
subject of history, law, science, or art; and
Court takes judicial notice of it, or
Witness expert in the subject testifies that the
writer of the statement in the treatise,
periodical or pamphlet is recognized in his
profession or calling as expert in the subject
Testimony or deposition at a former trial
Requisites for Admissibility [Sec. 47, Rule
130; Manliclic v. Calaunan (2007)]
Witness is dead or unable to testify;
His testimony or deposition was given in a
former case or proceeding, judicial or
administrative, between the same parties or
those representing the same interests;
Former case involved the same subject as that
in the present case although on different
causes of action;
Issue testified to by the witness in the former
trial is the same issue involved in the present
case; and
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EVIDENCE BAR OPERATIONS COMMISSION
Adverse party had the opportunity to cross-
examine the witness in the former case.
Exception to the Hearsay Rule on
Examination of Child Witness
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, maybe
admitted in evidence in any criminal or non-
criminal proceeding subject to the following rules:
Before such hearsay statement may be admitted,
its proponent shall make known to the adverse
party the intention to offer such statement and
its particulars to provide him a fair opportunity
to object. If the child is available, the court shall,
upon motion of the adverse party, require the
child to be present at the presentation of the
hearsay statement for cross-examination by the
adverse part. When the child is unavailable, the
fact of such circumstance must be proved by
the proponent.
In ruling on the admissibility of such hearsay
statement, the court shall consider the time,
content and circumstances thereof which
provide sufficient indicia of reliability. It shall
consider the following factors:
Whether there is a motive to lie;
The general character of the declarant child;
Whether more than one person heard the
statement;
Whether the statement was spontaneous;
The timing of the statement and the
relationship between the declarant child
and witness;
Cross-examination could not show the lack of
knowledge of the declaration child;
The possibility of faulty recollection of the
declarant of child is remote; and
The circumstances surrounding the statement
are such that there is no reason to suppose
the declarant child misrepresented the
involvement of the accused.
The child witness shall be considered
unavailable under the following situations:
Is deceased, suffers from physical infirmity, lack
of memory, mental illness, or will be exposed
to severe psychological injury; or
Is absent from the hearing and the proponent of
his statement has been unable to procure
his attendance by process or other
reasonable means.
When the child witness is unavailable, his
hearsay testimony shall be admitted only if
corroborated by other admissible evidence.
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OPINION RULE 51(b), Rule 130]

General Rule: The opinion of a witness Evidence of the witness good character is not
is not admissible. [Sec. 48, Rule 130] admissible until such character has been
impeached. [Sec. 14, Rule 130]
Exceptions:
Expert witness RULE ON EXAMINATION OF A CHILD WITNESS
Ordinary witness A.M. No. 004-07-SC

OPINION OF EXPERT WITNESS MEANING OF CHILD WITNESS

Expert witness is one who belongs to the Any person who at the time of giving testimony
profession or calling which the subject matter is less than 18 years;
of the inquiry relates and who possesses In child abuse cases, a child includes one over
special knowledge. [Sec. 49, Rule 130] 18 years but is found by the court as
Unable to fully take care of himself, or
Opinion is: Protect himself from abuse, neglect, cruelty,
On a matter requiring exploitation, or discrimination
Special knowledge, Because of a physical or mental disability or
Skill, condition.
Experience, or
Training APPLICABILITY OF THE RULE
Which he is shown to possess Shall apply in all criminal proceedings and non-
criminal proceedings involving child
OPINION OF ORDINARY WITNESS witnesses. [Sec. 1]
Admissible if [Sec. 50, Rule 130]: The ROC provisions on deposition, conditional
Proper basis is given, and examination of witnesses and evidence shall be
Regarding: applied suppletorily. [Sec. 32]
Identity of a person about whom he has
adequate knowledge; COMPETENCY OF A CHILD WITNESS
Handwriting with which he has sufficient Every child is presumed qualified to be a witness.
familiarity; To rebut the presumption of competence enjoyed
Mental sanity of a person with whom he is by a child, the burden of proof lies on the party
sufficiently acquainted; and challenging his competence. [Sec. 6(b)]
Impressions of the
Emotion, Requisites of Competency of a Child as
Behavior, Witness [People v. Mendoza (1996)]:
Condition, or Capacity of observation;
Appearance of a person. Capacity of recollection;
Capacity of communication.
CHARACTER EVIDENCE
General Rule: Character evidence is not admissible. When the court finds that substantial doubt
exists regarding the ability of the child to
Exceptions: perceive/remember/ communicate, distinguish
CRIMINAL CASES truth from falsehood, or appreciate the duty to
[RULE 130, SEC.51(A)] tell the truth in court, a competency exam shall
Accused May prove his good moral character, be conducted.
which is pertinent to the moral trait involved
in the offense charged. The age of the child by itself is not a sufficient
Prosecution May not prove the bad moral basis for a competency examination. [Sec. 6(a)]
character of the accused, except in rebuttal.
Offended Party His/her good or bad moral The court has the duty of continuously
character may be proved if it tends to establish assessing the competence of the child
in any reasonable degree the probability or throughout his testimony. [Sec. 6(f)]
improbability of the offense charged.
EXAMINATION OF A CHILD WITNESS
CIVIL CASES In open court [Sec. 11]
Moral character is admissible only when pertinent to the Alternative Modes
issue of character involved in the case. [Sec.

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Live-Link TV Testimony, in Criminal Cases where
Child is a Victim or a Witness [Sec. 25]
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.
Trauma must be of a kind which would
impair the completeness or truthfulness
of the childs testimony.
Videotaped Deposition of a Child Witness
[Sec. 27]
If the court finds that the child will not be able
to testify in open court at trial, it shall issue
an order that the deposition of the child be
taken and preserved by videotape.
The 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.
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS
[SEC. 25]
Live-link television testimony, in criminal
cases where the child is a victim or a witness
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.
The trauma must be of a kind which would
impair the completeness/truthfulness of the
childs testimony.
If it is necessary for the child to identify the
accused at trial, the court may allow the child to
enter the courtroom for the limited purpose of
identifying the accused, or the court may allow
the child to identify the accused by observing the
image of the latter on a television monitor.
VIDEOTAPED DEPOSITION OF A CHILD WITNESS
[SEC. 27]
If the court finds that the child will not be able to
testify in open court at trial, it shall issue an
order that the deposition of the child be taken
and preserved by videotape.
The 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.
HEARSAY EXCEPTION IN CHILD ABUSE CASES
[Sec. 28]
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Proponent of hearsay statement shall make
known to the adverse party the intention to offer
such statement and its particulars.
If the child is available, court shall require the
child to be present at the presentation of the
hearsay statement for cross-examination by the
adverse party.
If unavailable, the fact of unavailability must be
proved by the proponent and his hearsay testimony
must be corroborated by other admissible evidence.
SEXUAL ABUSE SHIELD RULE
General Rule [Sec. 30(a)]: The following are
INADMISSIBLE in any criminal proceeding
involving alleged child sexual abuse:
Evidence offered to prove that the alleged victim
engaged in other sexual behavior;
Evidence offered to prove the sexual
predisposition of the alleged victim.
Exception [Sec. 30(b)]: 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
PROTECTIVE ORDERS
Video/audio tapes that are part of the court record
may be viewed only by parties, their counsel, their
expert witness and the guardian ad litem. [Sec. 31(b)]
The court may issue additional orders to protect
the childs privacy. [Sec. 31(c)]
Publication (or causing it) in any format any
identifying information of a child who is or is
alleged to be a victim/accused of a crime or a
witness thereof, or an immediate family of the child,
shall be liable for contempt of court. [Sec. 31(d)]
A child has a right at any court proceeding not to
testify regarding personal identifying information
that could endanger his physical safety or his
family. [Sec. 31(e)]
Offer and Objection
OFFER OF EVIDENCE
CONCEPT [Sec. 34, Rule 132]
Court shall consider no evidence which has not
been formally offered
Purpose for which the evidence is offered must
be specified
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Kind of Evidence When to Offer

AS DISTINGUISHED FROM IDENTIFICATION OF
DOCUMENTARY EVIDENCE evidence
[Interpacific Transit v. Aviles (1990)]
Offer shall be done orally unless allowed by the
Identification of Formal Offer of Exhibit court to be done in writing.
Documentary Evidence
Done in the course of the Done only when the party
trial and accompanied by rests his/her case Absence of an offer is a defect which is waived when
the marking of the a party fails to object when the ground became
evidence reasonably apparent, as when the witness is called to
testify without any prior offer. [Catuira v. CA (1994)]

RATIONALE WHY FORMER OFFER IS NEEDED The defect caused by the absence of formal offer
There is a need for a formal offer of evidence because of exhibits can be cured by the identification of the
without such offer, the court cannot determine whether exhibits by testimony duly recorded and the
the evidence is admissible or not. [Riano] incorporation of the said exhibits in the records of
the case. [People v. Mate (1981)]
No evidentiary value can be given to pieces of
evidence not formally offered. [Dizon v, CTA (2008)] OBJECTION
CONCEPT
However, where the absence of an offer of What to object to When to object
testimonial evidence was not objected to as when
the witness was cross-examined by the adverse Testimonial evidence Immediately after offer is
party despite failure to make an offer of the made
testimony, the court must consider the testimony Question propounded in As soon as the grounds
the course of oral become reasonably
The provisions of the ROC on the inclusion on examination apparent
appeal of documentary evidence or exhibits in
Offer done in writing Within 3 days after notice
the records, cannot be stretched as to include
such pleadings or documents not offered at the of the offer, unless a
hearing of the case [Candido v. CA, 1996)] different period is allowed
by the court
WHEN OFFER IS NOT REQUIRED The grounds for objection must be specified in
In a summary proceeding because it is a any case.
proceeding where there is no full-blown trial;
Documents judicially admitted or taken judicial PURPOSES OF OBJECTION
notice of; [RIANO]
Documents, affidavits, and depositions used in Made to keep out inadmissible evidence that
rendering a summary judgment; would cause harm to clients cause (rules of
Documents or affidavits used in deciding quasi- evidence are not self-operating)
judicial or administrative cases [Bantolino v. Coca To protect the record (for future appeal)
Cola Bottlers, 2003 citing Rabago v. NLRC, 1991] To protect witness from being embarrassed or
Lost objects previously marked, identified, described harassed
in the record, and testified to by witness who had To expose adversarys unfair tactics
been subjects of cross-examination in respect to To give trial court an opportunity to correct its
said objects [Tabuena v. CA, 1991 citing People v. own errors and at the same time warn the
Napat-a, 1989] [Riano] court that a ruling adverse to the objector
may supply a reason to invoke a higher
WHEN TO MAKE AN OFFER courts appellate jurisdiction; and
[Sec. 35, Rule 132] To avoid a waiver of inadmissibility
Kind of Evidence When to Offer
Objections must be specific enough to
Testimonial At the time the witness is adequately inform the court the rule of evidence
called to testify or of substantive law that authorizes the
Documentary and Object After the presentation of exclusion of evidence [Riano]
a partys testimonial

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General Objections Do not clearly indicate to Incompetent,

the judge the ground upon which the objections are Irrelevant or
predicated. In cases where the incompetency of Otherwise improper.
the evidence is so palpable that a mere general
objection is deemed sufficient and where the TENDER OF EXCLUDED EVIDENCE
portion of the evidence objected to is clearly [Rule 132, Sec. 40]
pointed out, and its illegality is apparent on its face, Documents marked as exhibits during the hearing but
then the objection must be allowed. [Riano] which were not formally offered in evidence cannot be
considered as evidence nor shall they have
FORMAL VS. SUBSTANTIVE evidentiary value. [Vda. De Flores v. WCC (1977)]
OBJECTIONS [RIANO]
FormalOne directed against the alleged defect in HOW TO TENDER EVIDENCE
the formulation of the question Kind of evidence How to tender the
SubstantiveObjections made and directed against evidence
the very nature of the evidence
Documentary Offeror may have the
REPETITION OF AN OBJECTION same attached or made
[Sec. 37, Rule 132] part of the record
When it becomes reasonably apparent in the Testimonial Offeror may state for the
course of the examination of a witness that the record the name and
questions being propounded are of the same class other personal
as those to which objection has been made, circumstances of the
whether such objection was sustained or overruled, witness and the
it shall be sufficient for the adverse party to record substance of the
his continuing objection to such class of questions. proposed testimony

A court may, motu proprio, treat the objection as RATIONALE

a continuing one. [Keller v. Ellerman & Bucknall To allow the court to know the nature of the
Steamship] testimony or the documentary evidence and
convince the trial judge to permit the
RULING evidence or testimony; and
[Sec. 38, Rule 132] Even if he is not convinced to reverse his earlier
Should be given immediately after the objection ruling, the tender is made to create and
is made, unless the court desires to take a preserve a record for appeal [Riano]
reasonable time to inform itself on the
question presented. 2 METHODS OF MAKING THE
Reason for sustaining or overruling an objection TENDER [Riano]
need not be stated. However, if the objection is Where the counsel tells the court what the
based on two or more grounds, a ruling proposed testimony would be;
sustaining the objection on one or some of By using the question and answer form
them must specify the ground/s relied upon.
Reservation of a ruling by the court on an objection to
ERRONEOUS WAY OF MAKING TENDER
the admissibility of evidence, without subsequently To make a mere general offer of proof without
excluding the same, amounts to a denial of an producing the witness or stating the evidence
objection. [People v. Tavera] where by the fact in issue is to be proved. [Riano]
STRIKING OUT OF AN ANSWER
MOTION TO STRIKE
[Sec. 39, Rule 132]
Court may sustain an objection and order the
answer given to be stricken off the record if:
Witness answers the question before the
adverse party had the opportunity to
object, and
Such objection is found to be meritorious.
The court may also, upon motion, order the
striking out of answers, which are

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UP COLLEGE OF LAW SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION

Judicial approval of voluntary recognition of

Preliminary Matters minor natural children
Constitution of family home
SPECIAL PROCEEDINGS Declaration of absence and death
A remedy by which a party seeks to establish a Cancellation of correction of entries in the civil
status, right or a particular fact [Rule 1, Sec. 3(c)]. registry. [Sec. 1, Rule 72]
APPLICABLE RULES In the absence of special provisions, the rules
If special rules are provided, they shall apply. provided for in ordinary actions shall be, as far
But in the absence of such special provisions, as practicable, applicable in special
the rules applicable in special proceedings shall proceedings. [Sec. 2, Rule 72]
be applied [Rule 72, Sec. 2].
DIFFERENCE BETWEEN ACTION AND
There are special proceedings which are not part of SPECIAL PROCEEDING
the ROC (e.g. Writs of amparo and habeas data). Action Special Proceeding
The distinction between final and interlocutory To protect/enforce a right To establish a
orders in civil actions for purposes of determining or prevent/ redress a right/status/fact
the issue of applicability is not strictly applicable to wrong
orders in special proceedings. Rule 109 specifies
the orders from which appeals may be taken Involves 2 or more parties May involve only 1 party
[Regalado]. Rule 33 regarding judgment on Governed by ordinary Governed by special rules,
demurrer to evidence is applicable to special rules supplemented by supplemented by ordinary
proceedings [Matute v. CA (1969)]. special rules rules
SUBJECT MATTER AND APPLICABILITY OF Initiated by pleading, and Initiated by petition,
GENERAL RULES parties respond through parties respond through
Rules of special proceedings are provided an answer an opposition
for in the following cases:
Settlement of estate of deceased persons ACTION - formal demand of ones right in a court of
Escheat justice in the manner prescribed by the court or by
Guardianship and custody of children the law.
Trustees
Adoption SPECIAL PROCEEDING - application or proceeding to
Rescission and revocation of adoption establish the status or right of a party, or particular
Hospitalization of insane persons fact. No formal pleadings are required, unless the
Habeas corpus statute expressly so provides.
Change of name
Voluntary dissolution of corporations

VENUES AND JURISDICTIONS FOR SPECIAL PROCEEDINGS

Settlement of the Estate of Residence of the decedent MTC if gross value of the
a Deceased Person If non-resident, place where he had an estate estate does not exceed
P300,000, or does not
exceed P400,000 in
Metro Manila
otherwise, RTC
Escheat Person dies intestate leaving no heir Residence of the RTC
decedent or if non-resident, place where he had estate
Reversion where land lies in whole or in part RTC
Unclaimed Balances Act where deposits are located RTC
Appointment of Guardians Where minor resides Family Court
Where incompetent resides RTC
Appointment of Trustees Where will was allowed or RTC
Where the property or portion thereof affected by the
trust is situated
Adoption Domestic where adopter resides Family Court

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Rescission of Adoption
Habeas Corpus
Habeas Data
Amparo
Change of Name
Appointment of
Representative of
Absentee/ Declaration of
Absence
Cancellation / Correction of
Entries in Civil Registries
Petition for declaration of
nullity, annulment, legal
separation
MODES OF SETTLEMENT OF ESTATE [HERRERA]
(1) Extrajudicial Settlement of Estate [Rule 73,
Section 1]
(2) Summary Settlement of Estate of Small Value
[Rule 74, Section 2]
(3) Partition [Rule 69]
(4) Probate of Will [Rule 75-79]
(5) Petition for Letters of Administration [Rule 79]
Settlement of Estate of
Deceased Persons, Venue
and Process
WHICH COURT HAS JURISDICTION
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Inter-country Adoption ICAB or, where adoptee resides ICAB or Family Court
if filed with the Family Court
Where adoptee resides Family Court
If filed with RTC, where detainee is detained SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
For the custody of minors, where petitioner resides or Family Court, CA, SC
where minor may be found
Where the petitioner or respondent resides, or that which RTC generally
has jurisdiction over the place where the data or If concerning public data
information is gathered, collected, or stored, at the option files or government
of the petitioner offices, SC, CA or
Sandigabayan
Where the threat, act or omission was committed or any RTC, Sandiganbayan,
of its elements occurred CA, SC or any justice
thereof
Judicial - where petitioner resides RTC
Administrative: Local Civil Registry/
(a) Local civil registry where the record sought to be Philippine consulate
changed is kept
(b) Local civil registry of the place of residence of the
interested party (only if petitioner migrated to another
place in the Philippines and it is impractical to file
where records sought to be changed are kept)
(c) Philippine consulates only for non-resident citizen
Where Absentee resides before his disappearance RTC
Judicial - Where corresponding civil registry is located RTC
Administrative - Same as change of name Local Civil Registry/
Philippine consulate
Where petitioner or respondent has been residing for at Family Court
least 6 months prior to the date of filing
If non-resident petitioner, where he may be found at the
election of the petitioner
JURISDICTION OF RTCS
When the value of the estate exceeds P300,000 or
P400,000 in Metro Manila. [SC Circular 21-99]
JURISDICTION OF MTCS
When the value of the estate does not exceed
P300,000 or P400,000 in Metro Manila. [SC Circular
21-99]
inhabitant of the Inhabitant of foreign
Philippines at time of country
death (citizen/alien)
RTC of the province in RTC of any province in
which he resides which he had estate
Court first taking cognizance shall exercise
jurisdiction to the exclusion of all other courts and
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cannot be divested by subsequent act of intervening in the administration thereof in order

interested parties. [Sandoval v. Santiago (1949)] to remedy or repair any injury that may be done
thereto. [Dariano vs. Fernandez Fidalgo (1909)]
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS OF THE SAME ESTATE. There seems, however, to be a general tendency, in
Thus, if in the course of intestate proceedings the absence of express and specific restrictions to the
pending before a court of first instance, it is found that contrary, to uphold the exercise by the probate court
the decedent had left a last will, proceedings for the of such incidental powers as are, within the purview of
probate of the latter should replace the intestate their grant of authority, reasonably necessary to
proceedings even if at that stage an administrator had enable them to accomplish the objects for which they
already been appointed, the latter being required to were invested with jurisdiction and to perfect the
render final account and turn over the estate in his same. [In Re: Baldomero Cosme (1937)]
possession to the executor subsequently appointed.
This, however, is understood to be without prejudice;
that should the alleged last will be rejected or is
disapproved, the proceeding shall continue as an
intestacy. [Uriarte vs. CFI (1970)] General Rule: Summary Settlement
Jurisdiction assumed by a court shall not be
contested in a suit or proceeding,
of Estates
General Rule: Judicial Settlement
Exceptions:
In an appeal from that court, in the original case, Exception:
OR Extrajudicial Settlement of Estate
When the want of jurisdiction appears on the Summary Settlement of Estate of Small Value
record.
Court intervention not Summary judicial
VENUE IN JUDICIAL SETTLEMENT OF ESTATE required adjudication needed
RULE 73 RELATES TO VENUE AND NOT TO No will (intestate) Will may or may not exist
JURISDICTION The place of residence of the (intestate/testate)
deceased in settlement of estates, probate of will,
and issuance of letters of administration does not No debts Debts may or may not
constitute an element of jurisdiction over the exist
subject matter. It is only constitutive of venue. Heirs are all of age, or
minors are represented by
MEANING OF TERM RESIDES judicial or legal reps
Resides - in the section is viewed in its popular sense,
meaning, the personal, actual or physical habitation of
Gross value of estate may
a person, actual residence of place of abode and not
to his permanent residence or domicile.
not exceed P10,000
Bond filed at Register of Bond filed at and to be
EXTENT OF JURISDICTION OF PROBATE COURT deed in the amount equal determined by the
PROBATE COURT IS OF LIMITED JURISDICTION court to the value of the
General rule: Probate court cannot decide personal property
questions as to ownership of property alleged to be
part of the estate of the deceased but claimed by EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
some other person to be his property. BETWEEN HEIRS, WHEN ALLOWED
REQUISITES
Exceptions: Decedent died intestate
In a provisional manner to determine whether No debts OR the heirs have already paid such at
said property should be included or excluded the time of partition
in the inventory, without prejudice to final Heirs are all of age or the minors are represented by
determination of title in a separate action their judicial or legal representatives
With consent of all the parties, without prejudice to Settlement made in public instrument filed with
third persons [Trinidad v. CA (1991)] the register of deeds
If the question is one of collation or advancement Fact of the extrajudicial settlement shall be published
in a newspaper of general circulation 3 times a
POWERS AND DUTIES OF PROBATE COURT week, once each week. [Sec. 1, Rule 74]
It is the duty of courts of probate jurisdiction to guard
jealously the estates of the deceased person by

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PROCEDURE
Death of the decedent VALIDITY OF COMPROMISE AGREEMENT
Such is VALID, binding upon the parties as
Division of estate in public instrument or affidavit individuals, upon the perfection of the contract, even
of adjudication without previous authority of the court to enter into
such agreement. [Borja v. Vda. De Borja (1972)]

Filing of the public instrument, or affidavit of NO PRECLUSION FROM INSTITUTING ADMINISTRATION
adjudication if there is only one heir, with the proper PROCEEDINGS
Registry of Deeds Sec. 1, Rule 74 does not preclude the heirs from
instituting administration proceedings, even if the
Publication of notice of the fact of extrajudicial estate has no debts or obligations, if they do not
settlement once a week for 3 consecutive weeks in desire to resort for good reasons to an ordinary
a newspaper of general circulation in the province, action for partition. While Sec. 1 allows the heirs to
and after such other notice to interested persons divide the estate among themselves as they may
as the court may direct see fit, or to resort to an ordinary action for
partition, the said provision does not compel them
Hearing to be held not less than 1 month nor more to do as if theyhave good reasons to take a
than 3 months from the date of the last publication different course of action. [Pereira v CA (1989)]
of notice
TWO-YEAR PRESCRIPTIVE PERIOD
Claim by creditors and deprived heirs must be
Filing of bond equivalent to the value of personal
filed within 2 years from the time of distribution/
property
publication.

PRESUMPTION OF NO DEBTS
If there is no The parties may divide the estate It shall be presumed that the decedent left no
disagreement among themselves by means of a debts if no creditor files a petition for letters of
between the public instrument filed in the office administration within 2 years after the death of
heirs of register of deeds. the decedent. [Sec. 4, Rule 74]
If there is They may divide the estate in an
disagreement ordinary action of partition. AFFIDAVIT OF SELF-ADJUDICATION BY
He may adjudicate to himself the SOLE HEIR
If only one heir entire estate by means of an Affidavit of Self-adjudication by sole heir
affidavit filed in the Registrar of If there is only one heir, he may adjudicate to himself
Deeds. the entire estate by means of an affidavit filed in the
office of register of deeds. [Sec. 1, Rule 74]
BOND REQUIREMENT
Required only if personal property is involved BOND REQUIREMENT
because real estate is subject to lien File a bond equal to the value of the personal
File a bond equal to the value of the personal property involved as certified to under oath by
property involved as certified to under oath by the parties, conditioned upon the payment of
the parties, conditioned upon the payment of any just claim that may be filed [Sec. 1, Rule 74]
any just claim that may be filed of deprived heirs
and creditors. [Sec. 1, Rule 74] SUMMARY SETTLEMENT OF ESTATES OF
SMALL VALUE
NOT BINDING ON ANY PERSON WHO: WHEN ALLOWED
Has not participated in the extrajudicial Gross value of estate does not exceed P10,000
settlement; or Fact is made to appear to the RTC
Had no notice thereof. [Sec. 1, Rule 74] Through petition of an interested person
Upon hearing
VALIDITY OF ORAL PARTITION Held not less than 1 month nor more than 3
Such is VALID, because there is no law that months
requires partition among heirs to be in writing to Counted from the date of the last publication
be valid. [Pada Kilario v. CA (2000)] of a notice
Notice
Requirement under Rule 74.1 is merely for the Which shall be published once a week for 3
protection of creditors and the heirs themselves consecutive weeks
against tardy claims. Where there are no
creditors, the requirements no longer apply.

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In a newspaper of general circulation in the
province
It is not required that publication be for a
complete 21 days. What is required is that
it be published for once a week for 3
consecutive weeks.
Notice to interested persons as the court may
direct. [Sec. 2, Rule 74]
Upon fulfillment of the requisites, the court may
proceed summarily without the appointment of
an executor/administrator and without delay,
to grant, if proper, allowance of the will, if any
there be
to determine who are persons legally entitled to
participate in the estate
to apportion and divide among them after the
payment of such debts of the estate
persons in own right if of lawful age, or their
guardians, will be entitled to receive and enter
into possession of the portions of the estate so
awarded to them respectively. [Sec. 2, Rule 74]
PROCEDURE
Death of the decedent
Application for summary settlement with an
allegation that the gross value of the estate does
not exceed P10K
Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks
in a newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may direct
Hearing to be held not less than 1 month nor
more than 3 months from the date of the last
publication of notice
Court to proceed summarily, without appointing an
executor/administrator (executor/administrator), and
to make orders as may be necessary
Grant allowance of the will, if any
Determine persons entitled to estate
Pay debts of estate which are due
Filing of bond fixed by the court
Partition of estate
Notes: There is no requirement regarding the lack
of debts (unlike extrajudicial partition) in summary
settlement of estates of small value since the court
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will make provisions for such in its resolution of
the proceedings.
REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRA-JUDICIAL SETTLEMENT OF ESTATE
CLAIM AGAINST THE BOND OR THE ESTATE WITHIN
TWO YEARS
Bond and real estate remain charged
Rule: bond and real estate shall remain
charged with a liability to creditor, heirs or other
persons for the full period of 2 years after such
distribution, notwithstanding any transfers of
real estate that may have been made.
When applicable: There is an heir or other
person who
has been unduly deprived of his lawful
participation in the estate:
He shall have a right to compel the
settlement of the estate in the courts for
the purpose of satisfying such lawful
participation.
has been unduly deprived of his lawful
participation payable in money: The court
having jurisdiction of the estate may, by
order for that purpose, after hearing,
settle the amount of such debts or lawful
participation, and
order how much and in what manner each
distributee shall contribute in the
payment thereof, and
may issue execution against the bond or
against the real estate belonging to the
deceased, or both.
When not applicable:
To persons who have participated or taken part or
had notice of the extrajudicial partition
When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or heirs
of the decedent have taken part in the
extrajudicial settlement or are represented by
themselves or through guardians)
This is only a Bar against the parties who
had taken part in the extrajudicial
proceedings, but not against third persons
not parties thereto
Period for Claim of Minor or Incapacitated Person
If on the date of the expiration of the period of 2
years, the person authorized to file a claim is:
a minor or mentally incapacitated, or is in
prison or
outside the Philippines,
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
He may present his claim within 1 year after
such disability is removed. [Sec. 5, Rule 74]
After the two years has passed, claimant
must file an ordinary action against the
distributees within the statute of limitations.
ACTION TO ANNUL A DEED OF EXTRAJUDICIAL
PARTITION
Prescriptive period: within 4 years from the discovery
of the fraud (deemed to have taken place when said
instrument was filed with the Register of Deeds and
new certificates of title were issued in the name of
respondents). [Gerona v. De Guzman, 11 SCRA 154
(1964)] Note, this was decided before the New Civil
Code took effect.
HOWEVER in Amerol v. Bagumbaran (1987),
the Court applied Article 1144 (NCC) which
stated that actions upon an obligation created
by law must be brought within 10 years from
the time the right of action accrues. Since
implied or constructive trusts are obligations
created by law, then the prescriptive period to
enforce the same prescribes in 10 years.
Thus, an action for reconveyance based on
an implied or constructive trust must perforce
prescribe in 10 years and not otherwise.
Optional: See also separate opinion of
Justice Padilla re Amerol v. Bagumbayan,
which distinguishes between dolo causante
(4 years) and dolo incidente (10 years).
NEW ACTION TO ANNUL SETTLEMENT WITHIN
REGLEMENTARY PERIOD OF TWO YEAR
REOPENING BY INTERVENTION BEFORE RENDITION
OF JUDGMENT WITHIN THE REGLEMETARY
PERIOD OF TWO YEARS
PETITION FOR RELIEF ON THE GROUND OF FRAUD ,
ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE
within 60 days after the petitioner learns of the
judgment, final order or other proceedings to be
set aside and not more than 6 months after
such judgment or order is entered or taken
RESCISSION IN CASE OF PRETERITION
Production and Probate
of Will
NATURE OF PROBATE PROCEEDING
In Rem
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Mandatory
Imbued with public policy, thus imprescriptible and
the doctrine of estoppel does not apply
General Rule: A probate proceeding only looks
at extrinsic validity.
Extrinsic validity - due execution of the will
(whether or not the testator, being of sound
mind, freely executed the will in accordance with
the formalities prescribed by law)
Exception:
Principle of Practical Consideration
The probate court may pass upon the intrinsic
validity of the will because there is apparent
defect in its face this is also known as the
principle of practical consideration
[Nepomuceno v CA (1985)]. (Ex. When on the
face of the will the petitioner appears to be
preterited)
But the remedy of certiorari is available, where
the grounds for dismissal are indubitable (e.g.
grave abuse of discretion of the judge when
there is clearly preterition and the said judge still
continues the probate proceedings)
EFFECT OF PROBATE OF WILL
Decree of probate is conclusive as to its due
execution, subject to the right of appeal. (Thus,
no suit for forgery of a will, which has been duly
probated and such order becoming final)
[Rodelas v Aranza (1982)]:
General Rule: If a holographic will has been lost
or destroyed and no other copy is available, the
will cannot be probated because the best and
only evidence is the handwriting of the testator
in said will.
Exception: A photostatic copy or Xerox of the
holographic will may be allowed because
comparison can be made with the standard
writings of the testator.
WHO MAY PETITION FOR PROBATE;
PERSONS ENTITLED TO NOTICE
PETITIONER FOR THE ALLOWANCE OF THE WILL
Executor
Devisee
Legatee
Other person interested in the estate
Testator himself, during his lifetime [Sec. 1, Rule
76]
MEANING OF INTEREST IN ESTATE
An interested party is one who would be benefited
by the estate such as an heir or one who has claim
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against the estate like a creditor. [Sumilang v. instrument should be his will at the time of
Ramagosa (1967)] fixing his signature thereto [Sec. 9, Rule 76]

JURISDICTION, HOW ACQUIRED Note: The grounds for disallowance of will are
Attaching a mere copy of will to the petition or exclusive.
Delivery of will, even if no petition is filed or
Filing of the original petition and compliance with REPROBATE; REQUISITES BEFORE WILL
Sec 3-4 Rule 76. PROVED OUTSIDE ALLOWED IN THE
Publication for 3 weeks of the order PHILIPPINES; EFFECTS OF PROBATE
Notice to all interested persons (If by mail, 20
days before hearing; if through personal REPROBATE
service, 10 days before hearing) Wills proved and allowed in a foreign country,
according to the laws of such country, may be
If testator files for probate of his will, no allowed, filed, and recorded by the proper Court
publication is required and notice is only to the of First Instance in the Philippines (now RTC).
compulsory heirs. [Sec. 3, Rule 76] [Sec. 1, Rule 77]

REQUISITES FOR ALLOWANCE

Copy of the will
Allowance or Order or decree of the allowance in foreign
country
Disallowance of Will Filed with a petition for allowance in the Philippines by
executor or other person interested
Court having jurisdiction shall fix a time and
CONTENTS OF PETITION FOR place for the hearing
ALLOWANCE OF WILL Cause notice thereof to be given as in case of
Jurisdictional facts an original will presented for allowance. [Sec.
Death of the decedent 2, Rule 77]
Residence at the time of death in the
province where the probate court is sitting
EFFECT
Or if he is an inhabitant of a foreign country, his
The will shall have the same effect as if originally
leaving his estate in such province
proved and allowed in such court.
Names, ages, and residences of the heirs, legatees,
and devisees of the testator or decedent
Probable value and character of the property of
the estate
Name of the person for whom letters are prayed
If the will has not been delivered to the court, the
Letters Testamentary and
name of the person having custody of it. of Administration
[Sec. 2, Rule 76]
WHEN AND TO WHOM LETTERS
DEFECT IN PETITION OF ADMINISTRATION GRANTED
Defect in petition will not void the allowance of the Letters Testamentary issued to the executor named
will, or the issuance of letters testamentary or of in the will, if s/he is competent, accepts the trust, and
administration with the will annexed. [Sec. 2, Rule 76] gives the required bond. [Sec. 4, Rule 78]

GROUNDS FOR DISALLOWING A WILL Letters of Administration issued to an

If not executed and attested as required by law administrator when
If the testator was insane, or otherwise mentally No executor named or
incapable to make a will, at the time of its Executor or executors are incompetent, refuse
execution the trust, or fail to give bond or
If executed under duress, or the influence of Or person dies intestate. [1st par., Sec. 6, Rule 78]
fear, or threats
If procured by undue and improper pressure and WHO ARE INCOMPETENT TO SERVE
influence, on the part of the beneficiary, or of Minor
some other person for his benefit Non-resident
If the signature of the testator was procured by One who, in the opinion of the court, is unfit to
fraud or trick, and he did not intend that the exercise the duties of the trust by reason of
drunkenness,improvidence,wantof

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understanding or integrity or conviction of an
offense involving moral turpitude. [Sec. 1, Rule 78]
An executor of an executor cannot administer
the estate of the first testator. [Sec. 2, Rule 78]
ORDER OF PREFERENCE
ORDER OF PREFERENCE IN THE
GRANT OF ADMINISTRATION
Surviving spouse or next of kin, or both, or to
such person as the surviving spouse, or next
of kin requests to have appointed, if
competent and willing to serve.
If those in (a) be incompetent or unwilling, or if the
husband or widow, 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, it may be granted
to one or more of the principal creditors, if
competent and willing to serve.
If there is no (b), it may be granted to such other
person as the court may select. [Sec. 6, Rule 78]
Next of kin are those entitled by law to receive
the decedent properties. [Gonzalez v. Aguinaldo,
et al., (1990)]
REASON FOR ORDER OF PREFERENCE
Those who would reap the benefit of a wise,
speedy and economical administration of the
estate, or, on the other hand, suffer the
consequences of waste, improvidence or
mismanagement, have the highest interest and
most influential motive to administer the estate
correctly. [Gonzalez v. Aguinaldo, et al., (1990)]
Mere failure to apply for letters of administration
does not remove preference. [1 ALR 1247]
General Rule: The court cannot set aside order
of preference
Exceptions: If the person enjoying such
preferential rights is
Unsuitable
Incompetent
Unwilling
Neglect to apply for letters 30 days after the
death of the decedent
Court may reject order of preference when
circumstances warrant. [Villamor v. Court of
Appeals, (1988)]
The order of preference is not absolute for it
depends on the attendant facts and
circumstances of each case. The selection of an
administrator lies in the sound discretion of the
trial court. [In Re Suntay, (2007)]
PAGE 251
BAR OPERATIONS COMMISSION
30-DAY PERIOD MAY BE WAIVED
Just as the order of preference is not absolute
and may be disregarded for valid cause, so may
the 30-day period be likewise waived under the
permissive tone in paragraph (b) of said rule
which merely provides that said letters as an
alternative, may be granted to one or more of
the principal creditors. [Herrera]
Co-administrators may be appointed. [Matute v.
Court of Appeals (1969)]
OPPOSITION TO ISSUANCE OF LETTERS
TESTAMENTARY; SIMULTANEOUS FILING
OF PETITION FOR ADMINISTRATION
Who may oppose: Any person interested in will
[Sec. 1, Rule 79]
MEANING OF INTERESTED PERSON
One who would be benefited by the estate, such as
an heir, or one who has a claim against the estate,
such as a creditor; thus interest must be immaterial
and direct, not merely indirect or contingent.
[Saguinsin v. Lindayag, 6 SCRA 874]
GROUNDS
Incompetency of the person/s named in the
will as executor/s, or
Contestants right to the administration [Sec.
4, Rule 79]
Form required: State in writing the grounds why letter
should not issue; the court shall then hear and pass
upon sufficiency of such grounds. [Sec. 1, Rule 79]
CONTENTS
Jurisdictional facts
Name, age and residence of heirs and the name
and age of creditors
Probable value of the estate
Name of person to whom letter is prayed [Sec.
2, Rule 79]
JURISDICTIONAL FACTS
Death of the testator
His/her residence at the time of death in the
province where the probate court is sitting or,
If an inhabitant of a foreign country, his/her
having left his estate in such province [Diez
v. Serra, (1927)]
PUBLICATION AND NOTICE
Publication of notice for 3 weeks successively
and notice to heirs, creditors and interested
persons are jurisdictional. [Sec. 3, Rule 79 and
Secs. 3 & 4, Rule 76]
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SIMULTANEOUS FILING OF OPPOSITION AND
PETITION: A petition may, at the same time, be filed
for letters of administration to himself, or to any
competent person or person named in the
opposition. [Sec. 4, Rule 79]
Lack of interest in the proceedings is equal to lack
of legal capacity to institute proceedings. [Herrera]
Appointment of Regular Administrator is final
and thus, appealable.
POWERS AND DUTIES OF EXECUTORS
AND ADMINISTRATORS;
RESTRICTIONS ON THE POWERS
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS
Have Access to Partnership Books and Property
at All Times
Have access to, and may examine and take
copies of, books and papers relating to
the partnership business,
Examine and make invoices of the property
belonging to such partnership
The surviving partner or partners, on request,
shall exhibit to him all such books, papers,
and property in their hands or control.
[Sec. 1, Rule 84]
Failure to freely permit the exercise of the
may subject any partner for contempt.
Keep Buildings in Tenantable Repair
Houses and other structures and fences
belonging to the estate, and
Deliver the same in such repair to the heirs or
devisees when directed so to do by the
court. [Sec. 2, Rule 84]
Right to Possession and Management of the
Real and Personal Properties
So long as it is necessary for the payment of the
debts and the expenses of administration
Administrator cannot exercise the right of legal
redemption over a portion of the property
owned in common sold by one of the other co-
owners since this is not within the powers of
administrator. [Sec. 3, Rule 84]
Note: When the estate of a deceased is already
subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction
involving it without any prior approval of the
Court. [Estate of Olave v. Reyes (1983)]
PAGE 252
BAR OPERATIONS COMMISSION
RESTRICTIONS ON POWERS OF EXECUTORS AND
ADMINISTRATORS
Executor or Administrator Chargeable with all
Estate and Income
Chargeable in his account with the whole of
the estate which has come into his
possession, at the value of the appraisement
contained in the inventory:
With all the interest,
Profit
Income of such estate and
With the proceeds of as much of the estate
as is sold by him, at the price at which it
was sold. [Sec. 1, Rule 85]
Prohibited from Profiting by Increase or Losing
by Decrease in Value
(a) No executor/administrator shall profit by
the increase, or suffer loss by the
decrease or destruction, without his fault,
of any part of the estate
(b) Account for the excess (when sold for more)
(c) If sold for less, not responsible for loss, if
justly made
(d) If settled claim for less - He is entitled to
charge in his account only the amount he
actually paid on the settlement [Sec. 2,
Rule 85]
(e) Not accountable for debts due the
deceased which remain uncollected
without his fault [Sec. 3, Rule 85]
Accountable for Income from Realty Used by Him If
the executor/administrator uses or occupies any
part of the real estate himself, he shall account for
it as may be agreed upon between him and the
parties interested, or adjusted by the court with
their assent and if the parties do not agree upon
the sum to be allowed, the same may be
ascertained by the court, whose determination in
this respect shall be final. [Sec. 4, Rule 85]
Accountable if He Neglects or Delays to Raise
or Pay Money
(a) Neglects or unreasonably delays to raise
money, by collecting the debts or selling the
real or personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer loss.
(c) Damages sustained may be charge and
allowed against executor or administrator
in his/her account; liable on his/her bond.
[Sec. 5, Rule 95]
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Only Necessary Expenses shall be allowed
The amount paid by an
executor/administrator for costs awarded
against him shall be allowed in his
administration account [Sec. 6, Rule 85]
Unless it appears that the action or
proceeding in which the costs are taxed
was prosecuted or resisted without just
cause, and not in good faith.
When the executor is an attorney, cannot
charge against estate any professional fees
for legal services rendered. [Sec. 7, Rule 85]
Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the estate
and for its management for purpose of
liquidation, payment of debts, and distribution
of the residue among persons entitled
thereto. [Hermanos v. Abada (1919)]
Attorneys fees as expenses of administration
Administrator may not recover attorneys fees
from estate.
Executor or Administrator to Make Inventory and
Render Account
Accounting mandatory
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Sec. 8, Rule 85]
The fact that the heirs of the estate have entered
into an extrajudicial settlement and partition in
order to put an end to their differences cannot in
any way be interpreted as a waiver of the
objections of the heirs to the accounts submitted
by the administrator. [Joson v. Joson (1961)]
Examination on Oath by Court
As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof [Sec. 9, Rule 85]
The heirs, legatees, distributees, and creditors
of the estate shall have the same privilege as
the executor/administrator of being examined
on oath on any matter relating to an
administration account. [Sec. 9, Rule 85]
APPOINTMENT OF SPECIAL ADMINISTRATOR
WHEN APPOINTED
When there is delay in granting letters
testamentary or administration, or
By any cause, including an appeal from allowance or
disallowance of a will. [Sec. 1, Rule 80]
PAGE 253
BAR OPERATIONS COMMISSION
PROCEDURE FOR APPOINTMENT
There must first be notice and publication. Notice
through publication of the petition is a jurisdictional
requirement even in the appointment of a special
administrator. [De Guzman v. Angeles (1988)]
Appointment of special administrator lies entirely
in the sound discretion of the court. [De Gala v.
Gonzales, 53 Phil. 104 (1929)]
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR
Take possession and charge of the goods,
chattels, rights, credits, and estate of the
deceased, and
Preserve the same for the executor/administrator
afterwards appointed, and
For that purpose may commence and maintain
suits as administrator.
May sell only such perishable and other property
as the court orders sold.
Not liable - to pay any debts of the deceased unless
so ordered by the court. [Sec. 2, Rule 80]
WHEN SPECIAL ADMINISTRATOR CEASES DUTIES
When letters testamentary/administration are
granted on the estate of the deceased
He shall deliver to the executor/administrator the
goods, chattels, money, and estate of the
deceased in his hands.
The executor/administrator may prosecute to
final judgment suits commenced by such SA.
[Sec. 3, Rule 80]
Appointment of Special Administrator is
interlocutory and is not appealable. [Garcia v.
Flores, 101 Phil. 781 (1957)]
GROUNDS FOR REMOVAL OF ADMINISTRATOR
REVOCATION OF ADMINISTRATOR
When the decedents will is allowed and proved
after a letters of administration has been issued,
the administration is deemed revoked.
REMOVAL OF EXECUTOR OR ADMINISTRATOR
Grounds
Neglects to:
Render his account
Settle the estate according to law
Perform an order or judgment of the court, or a
duty expressly provided by these rules
Absconds
Becomes insane or
Becomes incapable or unsuitable to discharge
the trust. [Sec. 2, Rule 82]
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EFFECT OF REMOVAL, DEATH, OR RESIGNATION
The remaining executor/administrator may
administer the trust alone, unless the court
grants letters to someone to act with him.
If there is no remaining executor/administrator,
administration may be to any suitable person.
[Sec. 2, Rule 82]
Acts of the executor/administrator before
removal/resignation are valid. [Sec. 3, Rule 82]
Claims against the Estate
ESTATE BURDENED WITH LIEN OF CREDITORS
Upon the death of the person, all his property is
burdened with all his debts, his debts creating an
equitable lien thereon for the benefit of the creditors.
And such lien continues until the debts are
extinguished either by the payment, prescription, or
satisfaction in one of the modes recognized by law.
[Suiliong & Co. v. Chio Tayaan, 12 Phil. 13]
PURPOSE OF PRESENTATION OF CLAIMS
AGAINST ESTATE
To protect the estate of the deceased.
Executor/administrator will be able to examine
each claim, determine whether it is a proper
one which should be allowed.
To appraise 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. [Estate of Olave v.
Reyes (1983)]
TIME WITHIN WHICH CLAIMS SHALL BE
FILED; EXCEPTIONS
General Rule: Claims must be filed within the
time specified by the court in its notice which
shall not be less than 6 months nor more than
12 months from the date of the first publication
of the notice. [Sec. 2, Rule 86]
Exception:
Belated Claims
The Court has the discretion, for cause and upon
such terms as are equitable, to allow contingent
claims presented beyond the period previously
fixed provided they are filed within 1 month from
the expiration of such period but in no case beyond
the date of entry of the order of distribution. [Danan
v. Buencaminao (1981); Sec. 2, Rule 86]
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Publication for 3 consecutive weeks and posting
in 4 public places in the province and in 2 public
places in the municipality where the decedent
last resided. [Sec. 4, Rule 86]
STATUTE OF NON-CLAIMS
CLAIMS COVERED (EXCLUSIVE)
Claims for money against the decedent arising
from contract
Express or implied
Due or not
Contingent or not
Claims for funeral expenses
Expenses for the last sickness
Judgment for money against the decedent.
[Sec. 5, Rule 86]
The period, once fixed by the courts, is mandatory.
General Rule: Failure to make the claim within
the time fixed by the Courts will result in barring
any recovery. [Sec. 5, Rule 86]
Purpose: to settle the estate with dispatch, so
that the residue may be delivered to the persons
entitled thereto without their being afterwards
called upon to respond in actions for claims.
Exception:
When set forth as counterclaims in any action
that the executor/administrator may bring
against the claimants
If the decedent is a creditor and the executor or
administrator commences an action or
continues the action - the debtor may set
forth by answer the claims he has against the
decedent, instead of presenting them
independently to the court. [Sec. 5, Rule 86]
CONTINGENT CLAIM WHEN ALLOWED
When it becomes absolute;
Presented to the court or executor/administrator
within 2 years from the time limited for other
creditors to present their claims; and
Not disputed by executor/administrator
IF DISPUTED
It may be proved and allowed or disallowed by the
court as the facts may warrant [Sec. 5, Rule 88]
Mutual claims may be set off against each other
in such action.
Effect if a debtor obtains a favorable judgment
against the estate: the amount shall be considered
the true balance against the estate, as though the
claim had been presented directly before the court
in the administration proceedings
PAGE 254
UP COLLEGE OF LAW
The presentation of money claim may be waived.
[Ignacio v. Pampanga Bus co., Inc., (1967)]
If obligation solidary - file claim against decedent
as if he is the only debtor
If obligation joint - claim confined to the portion
belonging to the decedent [Sec. 6, Rule 86]
CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE
PROCEDURE TO FOLLOW IF THE EXECUTOR OR
ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE
REPRESENTS [Sec. 8, Rule 86]
Executor/Administrator shall give notice thereof,
in writing, to the court
The court shall appoint a special administrator
who shall have the same powers and liabilities
as the general executor/administrator in the
adjustment of such claim.
The court may order the executor or
administrator to pay to the special administrator
necessary funds to defend such claim.
PAYMENT OF DEBTS
DEBTS PAID IN FULL IF ESTATE SUFFICIENT
After all money claims heard and ascertained;
and
It appears that there are sufficient assets to pay
the debts
Executor/administrator shall pay the same within
the time limited for that purpose. [Sec. 1, Rule 88]
The probate court may hold in abeyance
intestate proceedings pending determination of
a civil case against the administrator.
The heirs of the estate may not demand the closing of
an intestate proceeding at anytime where there is a
pending case against the administrator of the estate.
The court can rightfully hold in abeyance until the civil
case is settled. [Dinglasan v. Chia, (1956)]
PART OF ESTATE FROM WHICH DEBT PAID WHEN
PROVISION MADE BY WILL
Testator provided for payment of debt
Expenses of administration, or family expenses
shall be paid according to such provisions
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
If not sufficient
The part of the estate not disposed of by will shall
be appropriated for the purpose [Sec. 2,Rule 88]
PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN
REALTY
General Rule: Personal estate not disposed of by
will shall be FIRST chargeable [Sec. 3, Rule 88]
Exception
Not sufficient for the purpose; or
Its sale will redound to the detriment of the
participants for the estate
In which case
The whole of the real estate not dispose of by will, or
so much thereof as is necessary, may be sold,
mortgaged, or otherwise encumbered for that
purpose by the executor/administrator,
Court approval must be obtained first
Any deficiency shall be met by contributions in
accordance with the provisions of S6 of this
rule. [Sec. 3, Rule 88]
ESTATE TO BE RETAINED TO MEET CONTINGENT CLAIMS
If court is satisfied that such claim is valid:
It may order the executor/administrator to retain
in his hands sufficient estate
For the purpose of paying the contingent claim
when such becomes absolute.
If estate insolvent - Retain a portion equal to the
dividend of the other creditors. [Sec. 4, Rule 88]
PAYMENT OF CONTINGENT CLAIM
If allowed - Creditor shall receive payment to the
same extent as the other creditors if the estate
retained by the executor/administrator is sufficient.
Claim not presented after becoming absolute
and allowed within 2 year period
The assets retained in the hands of the
executor/administrator, not exhausted in the
payment of claims, shall be distributed by the
order of the court to the persons entitled
But the assets so distributed may still be applied
to the payment of the claim when established,
and the creditor may maintain an action against
the distributees to recover the debt, and such
distributees and their estates shall be liable for
the debt in proportion to the estate they have
respectively received. [Sec. 5, Rule 88]
COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES ,
LEGATES, OR HEIRS HAVE BEEN IN POSSESSION
Possession before debts and
expenses paid Court shall
PAGE 255
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Hear and settle the amount of their several
liabilities
Order how much and in what manner each
shall contribute
May issue execution as circumstances
require. [Sec. 6, Rule 88]
Liability of heirs and distributes
Heirs are not required to respond with their own
property for the debts of their deceased
ancestors. But after partition of an estate, the
heirs and distributees are liable individually for
the payment of all lawful outstanding claims
against the estate in proportion to the amount
or value of the property they have respectively
received from the estate. [Govt of P.I. v.
Pamintuan, 55 Phil. 13 (1930)]
ORDER OF PAYMENT IF ESTATE IS INSOLVENT
Executor/administrator pays the debts against
the estate, observing the provisions of Articles
1059 and 2239 to 2251 of the Civil Code.
(Preference of Credits) [Sec. 7, Rule 88]
DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS
If no assets sufficient to pay credits of any one class
of creditors after paying preferred credits, Each
creditor within such class shall be paid dividend in
proportion to his claim. No creditor of any one class
shall receive any payment until those of the preceding
class are paid. [Sec. 8, Rule 88]
INSOLVENT NON-RESIDENT
His estate found in the Philippines shall be so
disposed of that his creditors here and elsewhere
may receive each an equal share, in proportion to
their respective credits. [Sec. 9, Rule 88]
INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND
FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY
Executor/administrator in the Philippines had
knowledge of the presentation of such claims
in such country; and
Executor/administrator had opportunity to
contest such allowance
The court shall:
Receive a certified list of such claims, when
perfected in such country,
And add the same to the list of claims proved
against the deceased person in the Philippines
So that a just distribution of the whole estate
may be made equally among all its creditors
But the benefit of this and the preceding sections 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
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
residing in the Philippines and the other creditor,
according to their respective claims. [Sec. 10,
Rule 88]
ORDER OF PAYMENT OF DEBTS
Before the expiration of the time limited for the
payment of the debts
The court shall order the payment thereof, and
the distribution of the assets received by the
executor/administrator for that purpose
among the creditors,
As the circumstances of the estate require and
in accordance with the provisions of this rule
[Sec. 11, Rule 88]
APPEAL TAKEN FROM A DECISION OF THE COURT
CONCERNING THE CLAIM
The court may:
Suspend the order for payment or order the
distribution among creditors whose claims
are definitely allowed
Leave in the hands of executor/administrator
sufficient assets to pay the claim disputed
and appealed.
When a disputed claim is finally settled court
shall order the claim to be paid out of the assets
retained to the same extent and in the same
proportion with the claims of other creditors.
[Sec. 12, Rule 88]
FROM TIME TO TIME FURTHER ORDERS OF DISTRIBUTION
Whole of the debts not paid on first distribution;
and
If the whole assets not distributed or other assets
afterwards come to the hands of
executor/administrator. [Sec. 13, Rule 88]
CREDITORS TO BE PAID IN ACCORDANCE WITH
TERMS OF ORDER
When an order is made for the distribution of
assets among creditors, the executor or
administrator shall, as soon as the time of payment
arrives, pay the creditors the amounts of their
claims, or the dividend thereon, in accordance with
the terms of such order.[Sec. 14, Rule 88]
COURT SHALL ALLOW EXECUTOR OR
ADMINISTRATOR A TIME FOR DISPOSING THE ESTATE
AND PAYING DEBTS AND LEGACIES
Period allowed to original or executor or
administrator
Not exceeding 1 year
Two years when special circumstances require
[Sec. 15, Rule 88]
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Extension allowed to successor of Dead
Executor or Administrator
Not exceeding 6 months at a time and not
exceeding six months beyond the time allowed
to original executor or administrator or
Not exceeding two years and a half.
[Moran 525, 1980 Ed.; Sec. 16, Rule 88]
Ground for Extension
Original executor/administrator dies
New administrator appointed
Requisites
Executor/administrator must apply.
Notice of the time and place of hearing.
Court must hear the application.
Actions by and against
Executors and Administrators
ACTIONS THAT MAY BE BROUGHT AGAINST
EXECUTORS AND ADMINISTRATORS
ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT
AGAINST THE EXECUTOR OR ADMINISTRATOR
Actions to be brought against Administrators
Recover real or personal property or interest
therein
Or to enforce a lien thereon and
Actions to recover damages for an injury to a
person or property [Aguas v. Llenos (1962)]
Claims against the administrator may be
presented in the administration proceedings but
not against third persons.
ACTIONS WHICH MAY NOT BROUGHT AGAINST
ADMINISTRATORS
Claim for the recovery of money or debt or interest
cannot be brought against
executors/administrators. [Aguas v. Llenos (1962)]
EXECUTOR OR ADMINISTRATOR MAY BRING OR
DEFEND ACTIONS WHICH SURVIVE
For the recovery or protection of the property or
rights of the deceased [Sec. 2, Rule 87]
Covers injury to property i.e. not only limited to
injuries to specific property, but extends to other
wrongs by which personal estate is injured or
diminished. [Javier v. Araneta, 93 Phil. 1115;
Aguas v. Llenos, supra]
PAGE 257
BAR OPERATIONS COMMISSION
WHEN RECOVERY OF PROPERTY FRAUDULENTLY
CONVEYED BY DECEASED MAY BE RECOVERED
There is deficiency of assets and the deceased,
in his lifetime, had conveyed real or personal
property, right or interest therein, or debt or
credit with intent to defraud his creditors or
avoid any right, debt or duty; or
Had so conveyed such property, right, interest,
debt or credit that by law the conveyance would
be void as against the creditors; and
The subject of the attempted conveyance would
be liable to attachment by any of them in his
lifetime. [Sec. 9, Rule 87]
DUTY OF EXECUTOR/ADMINISTRATOR
Commence and prosecute to final judgment an action
for the recovery of such property, right, interest,
debt or credit for benefit of the creditors
Provided, creditors make an application and pay
such part of the costs and expenses or give
security therefor. [Sec. 9, Rule 87]
If a person before granting letters testamentary
or administration
Embezzles or alienates
Any of the money, goods, chattels, or effects of
such deceased
Consequence: Such person shall be liable to an
action in favor of the executor/administrator of
the estate for double the value of the property
sold, embezzled, or alienated, to be recovered
for the benefit of such estate. [Sec. 8, Rule 87]
REQUISITES BEFORE CREDITOR MAY BRING AN
ACTION FOR RECOVERY OF PROPERTY
FRAUDULENTLY CONVEYED BY THE DECEASED
Any creditor may commence and prosecute to final
judgment a like action for the recovery of the
subject of the conveyance or attempted
conveyance if the following requisites are satisfied:
ALLOWED IN TWO INSTANCES
If executor/administrator failed to commence
such action
With court permission
In the name of the executor/administrator
He files a bond, conditioned to indemnify the
executor/administrator against the cost and
expenses incurred by such action
If conveyance or attempt is made in favor of
executor/administrator
No need for court permission
No need for Bond.
Action shall be brought in the name of all the
creditors
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
EFFECT
Such creditor shall have a lien upon any
judgment recovered by him in the action for such
costs and other expenses incurred therein as
the court deems equitable. [Sec. 10, Rule 87]
Distribution and Partition
Before there could be a distribution of estate, the
following stages must be followed:
Liquidation of the estate i.e. payment of
obligations of the deceased.
Collation and Declaration of heirs : to
determine to whom the residue of the estate
should be distributed.
Determination the right of a natural child
Determination of proportionate shares of
distributes.
Afterwards, the residue may be distributed and
delivered to the heirs. [Herrera]
LIQUIDATION
General Rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral expenses and expenses of
administration, allowances, taxes, etc.,
chargeable to the estate have been paid.
Exception: The distributees give a bond conditioned
on the payment of above obligations [Sec. 1, Rule 90]
PROJECT OF PARTITION
A project of partition is merely a proposal for the
distribution of the hereditary estate which the court
may accept or reject. [Solivio v. CA, (1990)]
The executor/administrator has no duty to
prepare and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the
condition of the estate. [3 Moran 541, 1980 Ed.]
It is the court that makes that distribution of the
estate and determines the persons entitled thereto
On application of executor/administrator or
person interested in the estate
Notice
Hearing
Court shall assign the residue of the estate to the
persons entitled to the same, naming them and the
proportions, or parts, to which each is entitled.
Such persons may demand and recover their
respective shares from the executor/administrator,
PAGE 258
BAR OPERATIONS COMMISSION
or any other person having the same in his
possession.
If there is a controversy as to who are heirs or shares
heard and decided as in ordinary cases. [Sec. 1, Rule
90]
EFFECT OF FINAL DECREE OF DISTRIBUTION
In rem and binding against the whole world.
All persons having interest in the subject matter
involved, whether they are notified or not, are
equally bound. [Philippine Savings Bank v.
Lantin (1983)]
The court acquires jurisdiction over all persons
interested, through the publication of the
notice prescribed and any order that may be
entered therein is binding against all of them.
[Ramon v. Ortuzar (1951)]
The only instance where a party interested in a
probate proceeding may have a final liquidation
set aside is when he is left out by reason of
circumstances beyond his control or through
mistake or inadvertence not imputable to
negligence. [Vda. De Alberto v. CA (1989)]
REMEDY OF AN HEIR ENTITLED TO
RESIDUE BUT NOT GIVEN HIS SHARE
The better practice for the heir who has not received
his share is to demand his share through a proper
motion in the same probate or administrative
proceedings, or for reopening of the probate or
administrative proceedings if it had already been
closed, and not through an independent action.
[Guilas v. Judge of the CFI of Pampanga, (1972)]
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT
OF EXECUTION
General Rule: Writ of Execution is not allowed in
probate proceedings [Vda de Valera v. Ofilada,
59 SCRA 96]
Exceptions:
To satisfy the contributive shares of devisees,
legatees and heirs in possession of the
decedents assets [Sec. 6, Rule 88]
To enforce payment of expenses of partition,
provided:
No sufficient effects are retained in the hands
of the executor or administrator at the time
of distribution
Expenses of partition are to be paid by
interested parties in proportion to their
respective shares or interest
Such apportionment are settled and allowed
by the court
Any person interested in the partition does
not pay his/her proportion or share [Sec.
3, Rule 90]
UP COLLEGE OF LAW
To satisfy the costs when a person is cited for
examination in probate proceedings [Sec. 13,
Rule 142]
Trustees
DISTINGUISHED FROM
EXECUTOR OR ADMINISTRATOR
Araneta v. Perez (1962): A trustee, like an
executor/administrator, holds an office of trust,
particularly when the trustee acts as such under
judicial authority.
The duties of executor/administrator are
however, fixed and/or limited by law whereas
those of the trustee of an express trust are,
usually governed by the intention of the trustor
or the parties, if established by contract.
Besides, the duties of trustees may cover a
wider range than those of executor/administrator
of the estate of deceased persons.
CONDITIONS OF THE BOND
Trustee must file bond before performing duties
Filed with the clerk of court
Amount fixed by the judge
Payable to the government of Philippines
Sufficient and available for the protection of any
party in interest
If the trustee fails to furnish a bond as required
by the court, he fails to qualify as such.
Nonetheless, the trust is not defeated by such a
failure to give bond, he is considered to have
declined or resigned the trust. [Sec. 5, Rule 98]
WHEN EXEMPT
When testator has directed such exemption; or
All persons beneficially interested in the trust,
request such exemption
Exemption may be cancelled by the court at any
time. [Sec. 5, Rule 98]
CONDITIONS
Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time
of the making of such inventory shall have
come to his possession or knowledge.
Exemption from inventory:
When trustee is not the original trustee
appointed
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Courts discretion
If an inventory has already been filed
Faithful management
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
Accounting
That he will render upon oath at least once a year
until his trust is fulfilled, unless he is excused in
any year by the court, a true account of the
property in his hands and the management and
disposition thereof, and will render such other
accounts as the court may order
Settlement of account and delivery of estate.
That at the expiration of his trust he will settle
his account in court and pay over and deliver
all the estate remaining in his hands, or due
from him on such settlement, to the person or
persons entitled to thereto. [Sec. 6, Rule 98]
REQUISITES FOR THE REMOVAL
AND RESIGNATION OF A TRUSTEE
Petition by parties beneficially interested
Due notice to the trustee
Hearing
GROUNDS FOR REMOVAL AND
RESIGNATION OF A TRUSTEE
GROUNDS FOR REMOVAL
Removal appears essential in the interest of
petitioner;
Trustee is insane;
Otherwise incapable of discharging his trust; or
Evidently unsuitable
GROUNDS FOR RESIGNATION
He may resign but the court will determine if
resignation is proper
EXTENT OF AUTHORITY OF TRUSTEE
NATURE OF POSSESSION
The possession of the property by the trustee is
not an adverse possession, but only a possession
in the name and in behalf of the owner of the
same.
A trustee may acquire the trust estate by
prescription provided there is a repudiation of
the trust, such repudiation being open, clear and
unequivocal, known to the cestui que trust
[Salinas v. Tuazon (1931)].
TERRITORIALITY OF AUTHORITY OF TRUSTEE
The powers of a trustee appointed by a
Philippine court cannot extend beyond the
confines of the territory of the Republic.
PAGE 259
UP COLLEGE OF LAW
This is based on the principle that his authority
cannot extend beyond the jurisdiction of the
Republic, under whose courts he was appointed.
[Herrera]
Escheat
Escheat is a proceeding where the real and personal
property of a person deceased in the Philippines, who
dies without leaving any will and without any legal
heirs, becomes the property of the State.
It is an incident or attribute of sovereignty and
rests on the principle of ultimate ownership by
the state of all property within its jurisdiction.
WHEN TO FILE
Person dies intestate;
Left properties in the Philippines; and
Leaves no heir or person by law entitled to the
same [Sec. 1, Rule 91]
REQUISITES FOR FILING OF PETITION
A person died intestate
He left no heirs or persons by law entitled to the
same
Deceased left properties [City of Manila v.
Archbishop of Manila, 36 Phil. 815]
Note: Must be initiated by the Government
through the Solicitor General.
The Court must fix a date and place for hearing,
which shall not be more than 6 months after the
entry of the order
PROCEDURE
Solicitor General or his representative in behalf of
the Republic of the Philippines to file the petition:
Deceased was a resident of the Philippinesin the
RTC of the province where he last resided
Deceased was a non-residentin the RTC of
the province in which he had an estate
Actions for reversion or escheat of properties
alienated in violation of the Constitution or of
any statutein the province where the land
lies in whole or in part
If the petition is sufficient in form and substance,
the court shall fix a date and place for the hearing
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
The court shall direct a copy of the order to be
published before the hearing at least once a
week for 6 consecutive weeks in some
newspaper of general circulation published in
the province, as the court shall deem best
The court shall hear the case and judge
whether or not the estate shall be escheated
If the court rules in favor of the Republic,
It shall assign the personal estate to the
municipality or city where the deceased
last resided, and the real estate to the
municipalities or cities, respectively, in
which the same is situated.
If the deceased never resided in the
Philippines, the whole estate may be
assigned to the respective municipalities
or cities where the same is located.
Such estate shall be for the benefit of public
schools, and public charitable institutions
and centers in said municipalities or cities.
The right of escheat may be waived, either expressly
or impliedly. [Roman Catholic Archbishop of Manila v.
Monte de Peidad, et al., 68 Phil. 1]
REMEDY OF RESPONDENT AGAINST
PETITION; PERIOD FOR FILING A CLAIM
PERIOD TO APPEAL AND CLAIM THE ESTATE
Appeal must be made within 5 years from date of
judgment; otherwise, barred forever [Sec. 5, Rule 91]
FILED BY WHOM
Devisee, legatee, heir, widow, widower, or other
person entitled to such estate appears
Such person shall have possession of and title
to the same, or if sold, the municipality or city
shall be accountable to him for the proceeds
after deducting reasonable charges for the
care of the estate [Sec. 5, Rule 91]
PERIOD FOR FILING CLAIM
5 years from date the property was delivered to
the State [Sec. 5, Rule 91]
PAGE 260
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
Guardianship
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 renders him
unable to protect himself [Herrera].
GUARDIAN
A person lawfully invested with power and charged
with the duty of taking care of a person who for some
peculiarity or status or defect of age, understanding or
self-control is considered incapable of administering
his own affairs [Herrera].
BASIS: PARENS PATRIAE
It is the States duty to protect the rights of
persons/individuals who because of
age/incapacity are in an unfavorable position
vis--vis other parties [Nery v. Lorenzo (1972)].
KINDS OF GUARDIANS [Regalado]
Legal Guardian deemed as guardian by
provision of law, without need of court
appointment [Article 320, Civil Code; Article
225, Family Code]
Guardian ad Litem appointed by the court to
prosecute or defend a minor, insane or person
declared to be incompetent, in a court action.
Judicial Guardian appointed by the court in
pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased
war veterans and other incompetent persons.
Guardian over the person.
Guardian of the property.
General Guardian has custody and care of
the wards person and property.
The Rules on Guardianship in the Rules of Court
govern guardianship of incompetent. Guardianship
of minor is now governed by AM 03-02-05-SC.
GUARDIANSHIP OF INCOMPETENT
PROCEDURE
Filing of Petition
Court issues order setting time for hearing
Notice to the incompetent and persons mentioned
in the petition
Publication only if incompetent is a non-resident.
PAGE 261
BAR OPERATIONS COMMISSION
Hearing
If granted,s ervice of judgement to the Local Civil
Registrat and payment of bond to the guardian.
GENERAL POWERS AND DUTIES OF GUARDIANS
Care and custody of the person of his ward and
management of his property.
Management of his property only.
Management of property within the Philippines (in
case of non-resident ward). [Sec. 1, Rule 96]
Specific duties
To pay the just debts of the ward out of:
Personal property and the income of the real
property of the ward, if the same is
sufficient
Real property of the ward upon obtaining an
order for its sale or encumbrance. [Sec.
2, Rule 96]
To settle all accounts of his ward [Sec. 3, Rule
96]
To demand, sue for, receive all debts due him, or,
with the approval of the court, compound for
the same and give discharges to the debtor on
receiving a fair and just dividend of the
property and effects [Sec. 3, Rule 96]
To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that purpose
[Sec. 3, Rule 96]
To manage the property of the ward frugally and
without waste, and apply the income and profits
thereon, insofar as may be necessary, to the
comfortable and suitable maintenance of the
ward. If such income and profits be insufficient for
that purpose, to sell or encumber the real or
personal property, upon being authorized by the
court to do so [Sec. 4, Rule 96]
To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
Authority granted by the court after hearing
Notice to relatives of the ward, and
A careful investigation as to the necessity and
propriety of the proposed action. [Sec. 5,
Rule 96]
To submit to the court a verified inventory of the
property of the ward:
Within three months after his appointment
Annually, and
Whenever required upon the application of an
interested person. [Sec. 7, Rule 96]
To report to the court any property of the ward not
included in the inventory which is discovered, or
succeeded to, or acquired by the ward within
UP COLLEGE OF LAW
3 months after such discovery, succession,
or acquisition [Sec. 4, Rule 96]
To render to the court for its approval an
accounting of the property:
One year from his appointment
Every year thereafter, and
As often as may be required. [Secs. 7 & 8, Rule
96]
REIMBURSEMENT OF REASONABLE EXPENSES
The court may authorize reimbursement to the
guardian, other than a parent, of reasonable
expenses incurred in the execution of his trust.
[Sec. 8, Rule 96]
PAYMENT OF COMPENSATION
Court may order payment of reasonable
compensation not exceeding 10% of the net
income of the ward. [Sec. 8, Rule 96]
EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE
OF WARDS PROPERTIES
Complaint filed by Whom
The guardian or ward, or
Any person having actual or prospective interest
in the property of the ward.
Court Examination
The court may require any person suspected of
having embezzled, concealed, or disposed of
any money, goods or interest, or a written
instrument belonging to the ward or his property
to appear for examination concerning any
thereof and issue such orders as would secure
the property against such embezzlement,
concealment or conveyance [Sec. 6, Rule 96]
Selling and Encumbering the Property of
the Ward Grounds
When the income of a property under
guardianship is insufficient to maintain and
educate the ward
When it is for the benefit of the ward that his
personal or real property or any part thereof be
sold, mortgaged or otherwise encumbered, and
the proceeds invested in safe and productive
security, or in the improvement or security of
other real property. [Sec. 1, Rule 95]
How: Verified petition filed by the guardian.
ORDER TO SHOW CAUSE
The court shall order the wards next of kin and all
persons interested in the property to appear at a
reasonable time and place and show cause why the
petition should not be granted. [Sec. 2, Rule 95]
At the time and place designated in the order to show
cause, the court shall hear the allegations and
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
evidence of the petitioner and next of kin, and other
persons interested, together with their witnesses, and
grant or deny the petition as the best interests of the
ward may require. [Sec. 3, Rule 95]
ORDER FOR SALE OR ENCUMBRANCE
Contents:
Grounds for the sale or encumbrance.
Manner of sale (public or private)
Time and manner of payment
Security, if payment deferred
Additional bond from guardian, if required. [Sec.
4, Rule 95]
Duration: Not more than 1 year, unless renewed.
INVESTMENT OF PROCEEDS AND MANAGEMENT OF
PROPERTY
The court may authorize and require the guardian to
invest the proceeds of sales or encumbrances, and
any other money of his ward in his hands, in real or
personal property, for the best interests of the ward.
The court may make such other orders for the
management, investment, and disposition of the
property and effects, as circumstances may
warrant. [Sec. 1, Rule 95]
CONDITIONS OF THE BOND OF THE
GUARDIAN (Applicable for both Guardianship
of Minors and incompetents)
To make and return to the court, within three
months after the issuance of his letters of
guardianship, a TRUE AND COMPLETE
INVENTORY of all the real and personal
property of his ward which shall come to his
possession or knowledge or to the possession
or knowledge of any other person in his behalf
To FAITHFULLY EXECUTE THE DUTIES OF
HIS TRUST, to manage and dispose the
property according to this rule for the best
interests of the ward, and to provide for his
proper care, custody and education
To render a TRUE AND JUST ACCOUNT of all the
property of the ward in his hands, and of all
proceeds or interest derived from them, and of
the management and disposition of the same,
at the time designated by this rule and such
other times as the court directs and at the
expiration of his trust, to settle his accounts with
the court and deliver and pay over all the
property, effects, and monies remaining in his
hands, or due from him on such settlement, to
the person lawfully entitled thereto
To perform all orders of the court and such other duties
as may be required by law. [Sec. 1, Rule 94]
PAGE 262
UP COLLEGE OF LAW
RULE ON GUARDIANSHIP OVER MINORS (A.M.
No. 03-02-05-SC)
General Rule:
The father and the mother shall jointly exercise
legal guardianship over the property of their
unemancipated common child without the
necessity of a court appointment. [Sec. 3; also
Article 225, Family Code]
In case of disagreement, the fathers decision
shall prevail, unless there is a judicial order to
the contrary. [Article 225, Family Code]
However, if the market value of the property or the
annual Income of the child exceeds P50,000.00,
the parent concerned shall furnish a bond.
PETITION FOR APPOINTMENT OF GUARDIAN
Who may file
Resident minor
Any relative
Other person on behalf of a minor
The minor himself, if 14 years of age or over
The Secretary of DSWD or the Secretary of
DOH, in the case of an insane minor who
needs to be hospitalized. [Sec. 2]
Non-resident minor
Any relative or friend of such minor
Anyone interested in his property, in
expectancy or otherwise. [Sec. 12]
Where to file
Resident minor - Family Court of the province or
city where the minor actually resides
Non-resident minor - Family Court of the
province or city where his property or any part
thereof is situated [Sec. 3]
Grounds for Filing
Death, continued absence, or incapacity of his
parents
Suspension, deprivation or termination of
parental authority
Remarriage of his surviving parent, if the latter is
found unsuitable to exercise parental authority
When the best interests of the minor so require.
[Sec. 4]
Contents of Petition
Jurisdictional facts
Name, age and residence of the prospective ward
Ground rendering the appointment necessary or
convenient
Death of the parents of the minor or the
termination, deprivation or suspension of
their parental authority
Remarriage of the minors surviving parent
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Names, ages, and residences of relatives within
the 4th civil degree of the minor, and of
persons having him in their care and custody
Probable value, character and location of the
property of the minor
Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied
by a certification against forum shopping.
No defect in the petition or verification shall render
void the issuance of letters of guardianship. [Sec. 7]
Who may file Opposition
Any interested person [Sec. 10]
The social worker ordered to make the case
study report, if he finds that the petition for
guardianship should be denied. [Sec. 9]
How
If Interested person - by filing a written
opposition. [Sec. 10]
If social worker by filing an intervention if based
on finding the petition should be denied. [Sec. 9]
Grounds for Opposition
Majority of the minor
Unsuitability of the person for whom letters are
prayed.
Procedure
Court shall fix a time and place for hearing.
Filing of petition.
Notice requirement
Court shall cause reasonable notice to be
given to:
The persons mentioned in the petition
The minor, if he is 14 years of age or over
For non-resident minors, notice shall be
given to the minor by publication or any other
means as the court may deem proper.
The court may also direct other general or
special notice to be given.
PAGE 263
UP COLLEGE OF LAW
Case Study Report
Court shall order a social worker to conduct a
case study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance
before the scheduled hearing.
Hearing
Compliance with notice requirement must
be shown.
The prospective ward shall be presented to
the court. If the minor is non-resident, the
court may dispense with his presence.
At the discretion of the court, the hearing on
guardianship may be closed to the public.
The records of the case shall not be released
without court approval.
Issuance or denial of letters of guardianship.
Service of final and executory judgment or
order upon the Local Civil Registrar of the
municipality or city where the minor resides
and the Register of Deeds of the place where
his property or part thereof is situated, who
shall annotate the same in the corresponding
title, and report to the court their compliance
within fifteen days from receipt of the order.
THE GUARDIAN
Order of Preference of Appointment (in default
of parents or a court-approved guardian)
The surviving grandparent. In case several
grandparents survive, the court shall select
any of them taking into account all relevant
considerations.
The oldest brother or sister of the minor over 21
years of age, unless unfit or disqualified.
The actual custodian of the minor over 21 years
of age, unless unfit or disqualified.
Any other person, who in the sound discretion of
the court, would serve the best interests of
the minor
Qualifications
The court shall consider the guardians:
Moral character
Physical, mental and psychological condition
Financial status
Relationship of trust with the minor
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Availability to exercise the powers and duties of a
guardian for the full period of the guardianship
Lack of conflict of interest with the minor
Ability to manage the property of the minor.
[Secs. 5 & 10]
Grounds are not exhaustive. [Herrera]
Powers and Duties
In general
Guardian of resident minor: Care and custody of
the person of his ward and the management
of his property, or only the management of
his property.
Guardian of non-resident minor: Management of all
his property within the Philippines [Sec. 17]
Bonds of Guardians
Before a guardian enters upon the execution of his
trust, or letters of guardianship issue, he must file a
bond as determined by the Court. [Sec. 14]
Whenever necessary, the court may require the
guardian to post a new bond and may discharge
from further liability the sureties on the old bond.
[Sec. 15]
Liability: In case of breach of any of its conditions,
the guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any other
person legally interested in the property. [Sec. 15]
REMOVAL, RESIGNATION, AND TERMINATION OF
GUARDIANSHIP
Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
Becomes insane or otherwise incapable of
discharging his trust
Is found to be unsuitable
Wasted or mismanaged the property of the ward
Failed to render an account or make a return for
thirty days after it is due. [Sec. 14]
Resignation
Ground: Any justifiable cause.
Upon the removal or resignation of the guardian,
the court shall appoint a new one.
No motion for removal or resignation shall be
granted unless the guardian has submitted the
proper accounting of the property of the ward
and the court has approved the same. [Sec. 24]
Termination
Grounds
The ward has come of age.
The ward has died.
PAGE 264
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How
Court motu proprio terminates guardianship
Upon verified motion of any person allowed to
file a petition for guardianship.
The guardian shall notify the court of the fact of
coming of age or death of the ward within 10
days of its occurrence. [Sec. 25]
The final and executory judgment or order removing a
guardian or terminating the guardianship shall be
served upon the Local Civil Registrar of the
municipality or city where the minor resides and the
Register of Deeds of the province or city where his
property or any part thereof is situated, who shall
enter the final and executory judgment or order in the
appropriate books in their offices. [Sec. 26]
Adoption
A juridical act which creates between two persons
a relation similar to that which results from filiation.
[Prasnick v. Republic, 98 Phil. 669 (1956)]
Objective: Best interest of the child [Sec. 1]
DISTINGUISH DOMESTIC ADOPTION FROM
INTER-COUNTRY ADOPTION
See Annex A.
DOMESTIC ADOPTION ACT
RA 8552 (Domestic Adoption Act) and the Rule
on Adoption govern the domestic adoption of
Filipino children.
General Rule: Husband and wife shall adopt jointly
Exceptions:
If one spouse seeks to adopt the legitimate child
of other
If one spouse seeks to adopt his own illegitimate
child, provided the other spouse has signified
his/her consent
If spouses are legally separated [Sec. 7(c), RA
8552]
PROCEDURE
Order of Hearing
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Publication at least once a week for three
consecutive weeks in newspaper of general
circulation in province or city where the court is
situated. Court shall notify the Solicitor General if
the petition prays for a change of name.
Child and Home Study Report
Hearing within 6 months from issuance of Order
Supervised Trial Custody for at least 6 months
Decree of Adoption
Amendment of Birth Certificate
EFFECTS OF ADOPTION
Parental Authority
All legal ties between thr biological parents and
adoptee are severed, and the same shall be vested
on the adopter, except if the biological parent is the
spouse of the adopter [Sec. 16, RA 8552]
Legitimacy
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and
obligations provided by law to legitimate children
born to them without discrimination of any kind.
Adoptee is entitled to love, guidance, and
support. [Sec. 17, RA 8552]
Succession
Adopter and adoptee shall have reciprocal rights
of succession without distinction from legitimate
filiation, in legal and intestate succession. If
adoptee and his/her biological parents had left a
will, the law on testamentary succession shall
govern. [Sec. 18, RA 8552]
Book of Adoptions
The Clerk of Court shall keep a book of adoptions
showing the date of issuance of the decree in each
case, compliance by the Civil Registrar with the
courts order, and all incidents arising after the
issuance of the decree. [Sec. 17, Adoption Rule (AR)]
PAGE 265
UP COLLEGE OF LAW
Confidentiality of Adoption Proceedings
All hearings in adoption cases, after compliance
with the jurisdictional requirements shall be
confidential and shall not be open to the public.
If the court finds that the disclosure of the
information to a third person is necessary for
security reasons or for purposes connected with or
arising out of the adoption and will be for the best
interests of the adoptee, the court may, upon
proper motion, order the necessary information to
be released, restricting the purposes for which it
may be used. [Sec. 15, RA 8552]
INSTANCES WHEN ADOPTION MAY BE RESCINDED
RESCISSION OF ADOPTION OF THE ADOPTEE
Who May File
Adoptee who is over 18 years of age
If the adoptee is a minor, with the assistance of
the DSWD
If the adoptee is over 18 years of age but
incapacitated, by his guardian or counsel.
[Sec. 19, RA 8552]
Grounds: Committed by the adopter
Repeated physical and verbal maltreatment
despite having undergone counseling
Attempt on the life of the adoptee
Sexual assault or violence
Abandonment or failure to comply with parental
obligations.
Adoption, being in the best interests of the child,
shall not be subject to rescission by the adopter.
However, the adopter may disinherit the
adoptee for causes provided in Article 919 of
the Civil Code. [Sec. 19, RA 8552]
Where to file: Family Court of the city or province
where the adoptee resides. [Sec. 20, AR]
When to file:
Within 5 years after reaching age of majority
If he was incompetent at the time of the
adoption, within 5 years after recovery from
such incompetency. [Sec. 21, AR]
Effects of Rescission of Adoption
RESTORATION OF PARENTAL AUTHORITY to
original parent if adoptee is a minor.
RECIPROCAL RIGHTS AND OBLIGATIONS of
adopter and adoptee are EXTINGUISHED.
CANCELLATION of amended birth certificate and
RESTORE ORIGINAL.
SUCCESSIONAL RIGHTS SHALL REVERT to
its status PRIOR TO ADOPTION, as of the
date of final judgment of rescission.
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
VESTED RIGHTS shall be RESPECTED. [Sec.
20, RA 8552]
INTER-COUNTRY ADOPTION
RA 8043 (Inter-country Adoption Act) governs
the adoption of Filipino children by:
Foreign nationals, and
Filipino citizens permanently residing abroad.
[Sec. 3 (a)]
WHEN ALLOWED
INTER-COUNTRY ADOPTION AS THE LAST RESORT ;
BEST INTEREST OF THE CHILD AS OBJECTIVE
The Inter-country Adoption Board (ICAB) shall
ensure that all possibilities for adoption of the child
under the Family Code (domestic adoption) have
been exhausted and that inter-country adoption is
in the best interest of the child [Sec. 7, RA 8043]
FUNCTIONS OF THE RTC
Filing of petition may be made with the Family
Court having jurisdiction over the place where
the child resides or may be found. [Sec. 28, AM
02-6-02 SC or AR Part II]
Court shall determine whether or not petition is
sufficient in form and substance and a proper
case for inter-country adoption.
Transmit the petition to the ICAB for appropriate
action.
Writ of Habeas Corpus
Essentially a writ of inquiry, granted to test the
right under which a person is detained, and to
relieve a person if such restrain is illegal
Extends to all cases of illegal confinement or
detention by which any person is deprived of his
liberty, or by which the rightful custody of any
person is withheld from the person entitled
thereto. [Sec. 1, Rule 102]
Can only be suspended in cases of rebellion or
invasion and when public interest requires it
(Art. III Sec. 15)
VITAL PURPOSES:
In General
To obtain relief from illegal confinement
To liberate those who may be imprisoned
without sufficient cause
To deliver them from unlawful custody
[Villavicencio v. Lukban (1919)]
Prime specification of the application for a writ of
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UP COLLEGE OF LAW
habeas corpus is restraint of liberty. [Moncupa v.
Enrile (1986)]
In the case of minors
Prosecuted for the purpose of determining
the right of custody of a child.
Question of identity is relevant and material
and must be convincingly established.
[Tijing v. CA (2008)]
To resolve questions of custody of a minor
The underlying rationale is not the illegality of the
restraint but the right of custody. [Tijing v. CA (2001)]
WHO MAY ISSUE THE WRIT
The SC,CA, and RTC have concurrent
jurisdiction to issue WHC [Sec.2, Rule 102]
Family courts have jurisdiction to hear petitions for
custody of minors and the issuance of the WHC
in relation to custody of minors
TEMPORARY RELEASE MAY CONSTITUTE
RESTRAINT -ELEMENTS
Where a person continued to be unlawfully
denied one or more of his constitutional rights
Where there is present denial of due process
Where the restraint is not merely involuntary but
appear to be unnecessary
Where a deprivation of freedom originally valid
has in light of subsequent developments
become arbitrary [Moncupa v. Enrile (1986)]
General Rule: Release of detained person,
whether permanent or temporary, makes the
petition for habeas corpus moot.
Exception:
Doctrine of Constructive Restraint- Unless there
are restraints attached to his release which
precludes freedom of action in which case
the Court can still inquire into the nature of
his involuntary restraint
The essential object and purpose of the writ
of habeas corpus is to inquire into all manner
of involuntary restraint. Any restraint which
will preclude freedom of action is sufficient.
[Villavicencio v Lukban (1919)]
Violation of freedom from threat by the apparent
threat to life, liberty and security of their
person from the following facts:
Threat of killing their families if they tried to
escape
Failure of the military to protect them from
abduction
Failure of the military to conduct effective
investigation [Secretary of Justice v. Manalo]
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
NATURE
Not a suit between private parties, but an inquisition
by the government, at the suggestion and instance of
an individual, but still in the name and capacity of the
sovereign. [Alimpoos v. CA, 106 SCRA 159 (1981)]
Proceedings in habeas corpus are separate and
distinct from the main case from which the
proceedings spring.
Ex parte Bollman: the question whether one
shall be imprisoned is always distinct from the
question of whether the individual shall be
convicted or acquitted of the charge on which he
is tried, and therefore these questions are
separate, and may be decided in different courts
[Herrera, citing 4 Cranch, 75, 101]
In the case of People v. Valte (1922), it was
stated that the writ of habeas corpus is not
designed to interrupt the orderly administration
of the laws by a competent court acting within
the limits of its jurisdiction, but is available only
for the purpose relieving from illegal restraint.
Proceedings on habeas corpus to obtain release
from custody under final judgment being in the
nature of collateral attack, the writ deals only with
such radical defects as render the proceeding or
judgment absolutely void, and cannot have the
effect of appeal, writ of error or certiorari, for the
purpose of reviewing mere error and irregularities
in the proceedings. [People v. Valte (1922)]
WHC MAY BE USED WITH WRIT OF
CERTIORARI FOR PURPOSES OF REVIEW
The two writs may be ancillary to each other
where necessary to give effect to the
supervisory powers of higher courts.
WHC reaches the body of the jurisdictional matters,
but not the record. Writ of certiorari reaches the
record but not the body [Galvez v. CA (1994)]
While generally, the WHC will not be granted
when there is an adequate remedy like writ of
error, appeal, or certiorari, it may still be
available in exceptional cases [Herrera, citing 39
C.J.S. Habeas corpus 13, 486-488]
WHC IS NOT THE PROPER REMEDY FOR
THE CORRECTION OF ERRORS OF FACT OR
LAW Exception: Error affects courts jurisdiction
(making the judgment void) [Herrera]
WHC does not lie where the petitioner has the
remedy of appeal or certiorari. [Galvez v. CA (1994)]
PAGE 267
UP COLLEGE OF LAW
WHC IS NOT PROPER:
To assert or vindicate denial of right to bail
[Galvez v. CA (1994)]
For correcting errors in appreciation of fact or
law [Sotto v. Director of Prisons (1962)]
WHC IS PROPER:
Remedy for reviewing proceedings for deportation of aliens
[De Bisschop v. Galang, (1963)]
Where the court has no jurisdiction to impose
the sentence [Banayo v. President of San
Pablo, 2 Phil. 413 (1903)]
CONTENTS OF THE
PETITION Who May Apply
The party for whose relief it is intended, or
By some person on his behalf [Sec. 3, Rule 102]
Some person any person who has a legally justified
interest in the freedom of the person whose liberty is
restrained or who shows some authorization to make
the application [Velasco v. CA (1995)]
REQUISITES OF APPLICATION:
That the person in whose behalf the application is
made is imprisoned or restrained of his liberty
The officer or name of the person by whom he is
so imprisoned or retrained 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
The place where he is so imprisoned or
restrained, if known
A copy of the commitment or cause of detention of
such person, if it can be procured without any
legal authority, such fact shall appear.
PROCEDURE
Application for the writ by petition [Sec. 3, Rule
102]
Grant or disallowance by court or judge [Secs. 4
& 5, Rule 102]
Clerk of Court issues the writ under the seal of
court (in case of emergency, by the judge
himself) [Sec. 5. Rule 105]
Service:
By whom: sheriff or other proper officer
How: leaving the original with the person to
whom it is directed and preserving a copy
on which to make return
To whom: officer in custody or any officer
(when in custody of person other than an
officer) [Sec. 7, Rule 105]
Execution and return:
Officer brings the person before the judge,
and
Officer makes due return [Sec. 8, Rule 102]
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
CONTENTS OF THE RETURN
Made by the person or officer in whose custody
the prisoner is found:
Whether he has or has not the party in his
custody or power, or under restraint
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
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
bought before the court or judge
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]
The return or statement shall be signed by the person
who makes it; and shall also be sworn by him if the
prisoner is not produced, and in all other cases, unless
the return is made and signed by a sworn public officer in
his official capacity. [Sec. 11, Rule 102]
WHEN THE RETURN CONSIDERED EVIDENCE , AND
WHEN ONLY A PLEA
When the prisoner is in custody under a warrant
of commitment in pursuance of law, the
return shall be considered prima facie
evidence of the cause of restraint.
If he is restrained of his liberty by any 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]
DISTINGUISH PEREMPTORY WRIT FROM
PRELIMINARY CITATION
PRELIMINARY CITATION requires the respondent to
appear and show cause why the peremptory writ
should not be granted
PEREMPTORY WRIT unconditionally commands the
respondent to have the body of the detained person
before the court at a time and place therein specified
[Lee Yick Hon v. Collector of Customs, (1921)]
WHEN WRIT NOT PROPER OR
APPLICABLE WHC will not issue where:
The person alleged to be restrained of his liberty
is in custody of an officer
Under process issued by the court or judge
By virtue of a judgment or order of a court of
record
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UP COLLEGE OF LAW SPECIAL PROCEEDINGS
The Court or judge had jurisdiction to issue the
process, render the judgment or make the
order. [Sec. 4, Rule 102]
The operative act is detention or restraint (whether
or not physical). If there is none, no WHC will issue
despite the possibility of respondent being liable to
civil, criminal, or administrative action.
Judicial discretion is exercised in the issuance of
the writ, and will not issue as a matter of course
[Eugenio, Sr. v. Velez (1990)]
Improper arrest or lack of preliminary investigation
is not a valid ground for the issuance of WHC. The
proper remedy is a motion to quash the warrant of
arrest and/or information before the trial court
[Ilagan v. Enrile, 1985]
Posting of a bail is not a waiver of the right to
challenge the validity of the arrest, and therefore
the right to resort to WHC [Sec. 26, Revised
Rules of Criminal Procedure]
A person discharged on bail is not entitled to WHC,
because such person is not imprisoned or restrained
of his liberty in such a way as to entitle him to the
WHC. [Tan Me Nio v. Collector of Customs, (1916)]
WHEN DISCHARGE NOT AUTHORIZED
DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF:
Jurisdiction appears after the writ is allowed,
despite any informality or defect in the
process, judgment, or order.
Person is charged with or convicted of an
offense in the Philippines
Person is suffering imprisonment under lawful
judgment [Sec. 4, Rule 102]
If it appears that the prisoner was lawfully committed,
and is plainly and specifically charged in the
warrant of commitment with an offense punishable
by death [Sec. 14, Rule 102]
Even if the arrest of a person is illegal, due to
supervening events
Issuance of a judicial process
[Sayo v. Chief of Police of Manila (1948)]
Judicial process is defined as a writ, warrant,
subpoena, or other formal writing issued by
authority of law. [Malaloan v. CA (1994)]
The filing before a trial court a complaint
which issued a hold departure order and
denied motion to dismiss and to grant
bail [Velasco v. CA(1995)]
Filing of an information for the offense for
which the accused is detained bars the
availability of WHC [Velasco v. CA (1995)]
PAGE 269
BAR OPERATIONS COMMISSION
DISTINGUISHED FROM WRIT OF AMPARO
AND HABEAS DATA
See Annex B.
CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF
MINORS (A.M. NO. 03-04-04-SC)
APPLICABILITY
Applies to petitions for custody of minors and
writs of habeas corpus in relation thereto.
Rules of Court shall apply suppletorily. [Sec. 1]
PETITION FOR RIGHTFUL CUSTODY
Verified petition for the rightful custody of a minor
may be filed by any person claiming such right.
Party against whom it may be filed shall be
designated as the respondent. [Sec. 2]
WHERE TO FILE
Filed with the Family Court of the province or
city where the petitioner resides or where the
minor may be found. [Sec. 3]
CONTENTS:
The personal circumstances of the petitioner
and of the respondent
The name, age and present whereabouts of the
minor and his or her relationship to the
petitioner and the respondent
The material operative facts constituting
deprivation of custody
Such other matters which are relevant to the
custody of the minor [Sec. 4]
Verified and accompanied with a certificate
against forum shopping signed by the petitioner
personally. [Sec. 4]
If court is satisfied that the petition is sufficient in
form and substance, it shall direct the clerk of
court to issue summons, which shall be served
together with a copy of the petition personally on
the respondent. [Sec. 5]
ANSWER TO THE PETITION
General Rule: Motion to dismiss the petition is
not allowed. Any other ground that might warrant
the dismissal of the petition may be raised as an
affirmative defense in the answer.
Exception: On the ground of lack of jurisdiction
over the subject matter or over the parties. [Sec. 6]
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
Verified Answer Personally verified and filed
within 5 days after service of summons. [Sec. 7]
Case study upon the filing of the verified answer
or the expiration of the period to file it, the court
may order a social worker to make a case study of
the minor and the parties and to submit to the court
at least 3 days before pre-trial. [Sec. 8]
MANDATORY PRE-TRIAL
Notice - 15 days after the filing of the answer or
the expiration of the period to file answer, the
court shall issue an order:
Fixing a date for the pre-trial conference
Directing the parties to file and serve their
respective pre-trial briefs
Requiring the respondent to present the minor
before the court.
The notice of its order shall be served separately
on both the parties and their respective
counsels. [Sec. 9]
Pre-trial brief contains the following:
A statement of the willingness of the parties to
enter into agreements that may be allowed
by law, indicating its terms
A concise statement of their respective claims
together with the applicable laws and authorities
Admitted facts and proposed stipulations of facts
The disputed factual and legal issues
All the evidence to be presented
The number and names of the witnesses and
their respective affidavits
Such other matters as the court may require to
be included.
Failure to file the pre-trial brief or to comply with
its required contents has same effect as failure
to appear at the pre-trial. [Sec. 10]
If the petitioner fails to appear personally at the
pre-trial, the case shall be dismissed.
Unless his counsel or a duly authorized
representative appears in court and proves a
valid excuse for the non-appearance of the
petitioner. [Sec. 11]
If the respondent has filed his answer but fails to
appear at the pre-trial, the petitioner shall be allowed
to present his evidence ex parte. The Court shall then
render judgment on the basis of the pleadings and the
evidence thus presented. [Sec. 9]
At the pre-trial, the parties may agree on the custody
of the minor. If the parties fail to agree, the court may
refer the matter to a mediator who shall have 5 days
to effect an agreement between the parties. If
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BAR OPERATIONS COMMISSION
the issue is not settled through mediation, the
court shall proceed with the pre-trial. [Sec. 12]
Ater an answer has been filed or after expiration of
the period to file it, the court may issue a
provisional order awarding custody of the minor to:
Both parents jointly
Either parent
The grandparent, or if there are several
grandparents, the grandparent chosen by the
minor over 7 years of age and of sufficient
discernment
The eldest brother or sister over 21 years of age
The actual custodian of the minor over 21 years
of age
Any other person or institution the court may
deem suitable. [Sec. 13]
INTERIM RELIEFS
Temporary visitation rights - 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.
The temporary custodian shall give the court
and non custodial parent or parents at least 5
days' notice of any plan to change the residence
of the minor or take him out of his residence for
more than 3 days. [Sec. 15]
Hold Departure Order the minor child 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 (BID), directing it not to allow
the departure of the minor from the Philippines
without court permission.
The Family Court issuing the hold departure
order shall furnish the DFA and the BID of the
DOJ a copy of the hold departure order within 24
hours from its issuance.
The court may recall the hold departure order
motu proprio or upon verified motion of any of
the parties after summary hearing. [Sec. 16]
Protection Order (PO) - court may issue a PO
requiring any person:
To stay away from the home, school, business,
or place of employment of the minor, other
parent or any other party, or from any other
specific place
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
To cease and desist from harassing,
intimidating, or threatening such minor or the
other parent or any person to whom custody
of the minor is awarded
To refrain from acts or omission that create an
unreasonable risk to minor
To permit a parent, or a party entitled to visitation
by a court order or a separation agreement, to
visit the minor at stated periods
To permit a designated party to enter the residence
during a specified period of time in order to take
personal belongings not contested in a
proceeding pending with the Family Court
To comply with such other orders as are necessary for
the protection of the minor. [Sec. 17]
JUDGMENT
Court shall render judgment awarding the
custody of the minor to the proper party
considering the best interests of the minor.
If both parties are unfit to have the care and
custody of the minor, the court may designate
either the paternal or maternal grandparent of
the minor, or his oldest brother or sister, or any
reputable person to take charge of such minor,
or commit him to any suitable home.
Court may order either or both parents to give an
amount necessary for the support, maintenance and
education of the minor, irrespective of custodianship.
The court may also issue any order that is just
and reasonable permitting the parent who is
deprived of the care and custody of the minor to
visit or have temporary custody. [Sec. 18]
Appeal
Appeal from the decision shall be allowed, unless
the appellant has filed a motion for reconsideration
or new trial within 15 days from notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within 15
days from notice of the denial of the motion for
reconsideration or new trial and serving a copy
on the adverse parties. [Sec. 19]
WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS
A verified petition for a writ of habeas corpus
involving custody of minors filed with the Family
Court. The writ shall be enforceable within the
judicial region the Family Court belongs.
However, the petition may be filed with a regular
court in the absence of the presiding judge of the
Family Court provided that the regular court shall
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BAR OPERATIONS COMMISSION
refer the case to the Family Court as soon as its
presiding judge returns to duty.
Petition may also be filed with the appropriate
regular courts in places where there are no
Family Courts.
The petition may be filed with the SC, CA, or
with any of its members and shall be
enforceable anywhere in the Philippines. The
writ may be made returnable to a Family Court
or to any regular court within the region where
the petitioner resides or where the minor may be
found for hearing and decision on the merits.
Upon return of the writ, the court shall decide the
issue on custody of minors. [Sec. 20]
Writ of Amparo
Literally means to protect
Came originally from Mexico and evolved into
many forms
Amparo libertad for protection of personal
freedom
Amparo contra leyes for judicial review of
the constitutionality of statutes
Amaparo casacion judicial review of
constitutionality and legality of judicial
decisions
Amparo agrario for protection of peasants
rights
AM No 7-9-12-SC (Rules on the Writ of Amparo)
[Amparo Rule] was promulgated by the Supreme
Court by virtue of the 1987 Constitution stating
that the SC has the power to [p]romulgate rules
concerning the protection and enforcement of
constitutional rights (Art VIII Sec. 5)
Interpreted as the additional power to
promulgate rules to protect and enforce rights
guaranteed by the fundamental law of the land.
COVERAGE
WRIT OF AMPARO
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 (killings committed without
due process of law) and
Enforced disappearances [Sec. 1, Amparo Rule]
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
Elements of Enforced Disappearance:
An arrest, detention or abduction of a person by
a government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government
The refusal of the State to disclose the fate or
whereabouts of the person concerned or a refusal
to acknowledge the deprivation of liberty which
places such persons outside the protection of law
[Sec. of National Defense v. Manalo (2008)]
The writ applies only to the right to life, liberty
and security of persons and not the property.
Right to security as a guarantee of protection by
the government, is violated by the apparent threat
to the life, liberty and security of their person.
DISTINGUISH FROM WRIT OF HABEAS
CORPUS AND HABEAS DATA
See Annex C
DISTINGUISH WRIT OF AMPARO FROM
SEARCH WARRANT
Secretary of Defense v. Manalo (2008): The production
order under the Amparo Rule should not be confused
with a search warrant for law enforcement under Article
III, Section 2 of the 1987 Constitution.
The Constitutional provision is a protection of the
people from the unreasonable intrusion of the
government, not a protection of the government from
the demand of the people such as respondents.
Instead, the Amparo production order may be likened
to the production of documents or things under
Section 1, Rule 27 of the Rules of Civil Procedure i.e.
Upon motion of any party showing good cause
therefor, the court in which an action is pending may
(a) 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...
WHO MAY FILE
Aggrieved party
Any member of the immediate family namely:
the spouse, children and parents of the
aggrieved party
Any ascendant, descendant or collateral relative of
the aggrieved party within the fourth civil
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degree of consanguinity or affinity, in default of
those mentioned in the preceding paragraph or
Any concerned citizen, organization, association
or institution if there is no known member of
the immediate family or relative of the
aggrieved party.
The filing of a petition by the aggrieved party
suspends the right of all other authorized parties
to file similar petitions. [Sec. 2]
RATIO FOR PREFERENCE
Necessary for the prevention of indiscriminate and
groundless filing of petitions for amparo which
may even prejudice the right to life, liberty or
security of the aggrieved party
Untimely resort to the writ by a non-member of
the family may endanger the life of the
aggrieved party
WHERE TO FILE
RTC where the threat, act or omission was
committed or any of its element occurred
Sandiganbayanunlike the writ of habeas corpus,
because public officials and employees will be
respondents in amparo petitions
Court of Appeals
Supreme Court
Any justice of such courts [Sec. 3]
May be filed on any day, including Saturdays,
Sundays, and holidays; from morning until evening.
CONTENTS
The personal circumstances of the petitioner;
The name and personal circumstances of the
respondent responsible for the threat, actor
omission or if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of the
respondent, and how such threat or violation is
committed with the attendant circumstances
detailed in supporting affidavits;
The investigation conducted, if any, specifying the
names, the personal circumstances and
addresses of the investigating authority or
individuals, as well as the manner and conduct
of the investigation, together with any report;
The actions and recourses taken by the petitioner to
determine the fate or whereabouts of the
aggrieved party and the identity of the person
responsible for the threat, act or omission; and
The relief prayed for.
May include a general prayer and equitable reliefs.
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
Signed and verified [Sec. 5]
No docket fees and other lawful fees. [Sec. 4]
CONTENTS OF RETURN
Upon the filing of the petition, the court shall
order the issuance of the writ.
The respondent shall file a verified written return
together with supporting affidavits within 72
hours after service of the writ.
CONTENTS:
The lawful defenses to show that the respondent did
not violate or threaten with violation the right to
life, liberty and security of the aggrieved party,
through any act or omission
The steps or actions taken by the respondent to
determine the fate or whereabouts of the
aggrieved party and the person responsible
for the threat, act or omission
All relevant information in the possession of the
respondent pertaining to the threat, act or
omission against the aggrieved party and
If the respondent is a public official or employee
the return shall further state the actions that
have been or will still be taken.
The return shall also state matters relevant to
the investigation, its resolution and the
prosecution of the case.
No general denial allowed. [Sec. 9]
TO WHOM RETURNABLE
If filed with RTC, returnable to RTC or any judge
If filed with Sandiganbayan, CA or any justice,
returnable to such court or any justice or the
RTC where the threat, act or omission was
committed or any of its elements occurred.
If filed with the SC, returnable to the SC or any
justice, or to the CA, SB or any of its justices,
or the RTC where the threat, act or omission
was committed or any of its elements
occurred. [Sec. 3]
OMNIBUS WAIVER RULE
DEFENSES NOT PLEADED DEEMED WAIVED .
All defenses shall be raised in the return,
otherwise, they shall be deemed waived. [Sec. 10]
EFFECT OF FAILURE TO FILE A RETURN
In case the respondent fails to file a return, the
court, justice or judge shall proceed to hear the
petition ex parte.
PROCEDURE FOR HEARING ON THE WRIT
SUMMARY HEARING
Hearing on the petition shall be summary.
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BUT: 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]
PROHIBITED PLEADINGS AND MOTIONS
Motion to dismiss
Motion for extension of time to file return,
opposition, affidavit, position paper and
other pleadings
Dilatory motion for postponement
Motion for a bill of particulars
Counterclaim or cross-claim
Third-party complaint
Reply
Motion to declare respondent in default
Intervention
Memorandum
Motion for reconsideration of interlocutory orders
or interim relief orders and
Petition for certiorari, mandamus or prohibition
against any interlocutory order. [Sec. 11]
Allows motion for new trial and petition for relief
from judgment
JUDGMENT
The court shall render judgment within ten (10) days
from the time of petition is submitted for decision.
ARCHIVING AND REVIVAL OF CASES
If the case cannot proceed for valid cause, the
court shall not dismiss the petition but shall
archive it. If after the lapse of two (2) years from
the notice of archiving, the petition shall be
dismissed for failure to prosecute. [Sec. 20]
INSTITUTION OF SEPARATE ACTIONS
The Rule shall neither preclude the filing of
separate criminal, civil or administrative actions
nor suspend the filing of criminal, civil or
administrative actions. [Sec. 21]
But a claim for damages should instead be filed
in a proper civil action.
If the evidence so warrants, the amparo court
may refer the case to the Department of Justice
for criminal prosecution, because the amparo
proceeding is not criminal in nature and will not
determine the criminal guilt of the respondent.
EFFECT OF FILING OF A CRIMINAL ACTION
When a criminal action has been commenced, NO
SEPARATE PETITION for the writ shall be filed.
Reliefs under the writ shall be available by
motion in a criminal case.
UP COLLEGE OF LAW SPECIAL PROCEEDINGS
Procedure under this Rule shall govern the
disposition of the reliefs available under the writ
of amparo. [Sec. 22]
CONSOLIDATION
When a criminal action is filed subsequent to the
filing of a petition for the writ, the latter shall be
consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a writ
of amparo, the latter shall be consolidated with
the criminal action.
After consolidation, the procedure under this
Rule shall continue to apply to the disposition of
the reliefs on the petition. [Sec. 23]
Interim Reliefs Available to Petitioner and
Respondent
Upon filing of the petition or at any time before
final judgment
INTERIM RELIEFS AVAILABLE TO THE
PETITIONER
TEMPORARY PROTECTION ORDER. The court,
justice or judge, upon motion or motu proprio,
may order that the petitioner or the aggrieved
party and any member of the immediate family
be protected in a government agency or by an
accredited person or private institution capable
of keeping and securing their safety. If the
petitioner is an organization, association or
institution referred to in Section 3(c) of this
Rule, the protection may be extended to the
officers concerned.
The SC shall accredit the persons and private
institutions that shall extend temporary protection
to the petitioner or aggrieved party and any
member of the immediate family, in accordance to
the guidelines which it shall issue.
The accredited persons and private persons
and private institutions shall comply with the
rules and conditions that may be imposed by
the court, justice or judge. [Sec. 14(a)]
Different from the inspection and
production order in that the temporary
protection order and the witness protection
order do not need a verification and may be
issued motu proprio or ex parte.
INSPECTION ORDER. The court, justice or judge upon
verified motion and after due hearing may order
any person in possession or control of a
designated land or other property, to permit entry
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for the purpose of inspecting, measuring,
surveying, or photographing the property or
any relevant object or operation thereon.
The motion shall state in detail the place or
places to be inspected. It shall be supported by
affidavits or testimonies of witnesses having
personal knowledge of the enforced
disappearances or whereabouts of the
aggrieved party.
If the motion is opposed on the ground of
national security or of the privileged nature of
the information, the court, justice or judge
may conduct a hearing in chambers to
determine the merit of the opposition.
The movant must show that the inspection
order is necessary to establish the right of the
aggrieved party alleged to be threatened or
violated.
The inspection 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. The order shall expire five
(5) days after the day of its issuance, unless
extended for justifiable reasons. [Sec. 14(b)]
Requires hearing, may be availed of both the
petitioner and the respondent
If the court, justice or judge gravely abuses
his or her discretion in issuing the
inspection order, the aggrieved party is not
precluded from filing a petition for
certiorari with the Supreme Court
PRODUCTION ORDER. The court, justice or judge,
upon verified motion and after due hearing may
order any person in possession, custody or control
of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form
which constitute or contain evidence relevant to
the petition or the return, to produce and permit
their inspection, copying or photographing by or
on behalf of the movant.
Grounds for Opposition
National security
Privileged nature of the information
In which case the court, justice or judge may
conduct a hearing in chambers to determine
the merit of the opposition. [Sec. 14(c)]
Only granted upon motion and hearing
Not the same as search warrant for law
enforcement under Art. III, Sec. 2 of the
UP COLLEGE OF LAW
Constitution since the latter is a protection
of the people from unreasonable intrusion
of the government, not a protection of the
government from the demand of the people
such as respondents
More similar to production of documents or
things under Sec. 1 Rule 27 of Rules of
Civil Procedure
WITNESS PROTECTION ORDER. The court, justice or
judge, upon motion or motu proprio, may
refer the witnesses to
The Department of Justice for admission to
the Witness Protection, Security and
Benefit Program.
Other government agencies, or to accredited
persons or private institutions capable of
keeping and securing their safety. [Sec. 14(d)]
INTERIM RELIEFS AVAILABLE TO THE
RESPONDENT
Inspection Order
Production Order [Sec. 15]
REQUISITES
Verified motion of the respondent
Due hearing
Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent. [Sec. 15]
QUANTUM OF PROOF IN APPLICATION FOR
ISSUANCE OF WRIT: SUBSTANTIAL
EVIDENCE The parties shall establish their
claims by substantial evidence.
IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE
Must prove that extraordinary diligence as
required as required by the applicable laws,
rules and regulations was observed in the
performance of duty.
Cannot invoke the presumption that official duty
has been regularly performed to evade
responsibility or liability
IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY
Must prove that ordinary diligence as required
by applicable laws, rules and regulations was
observed in the performance of duty. [Sec. 17]
Sec. of Justice v. Manalo (supra): With the secret
nature of an enforced disappearance and the torture
perpetrated on the victim during detention, it logically
holds that much of the information and
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
evidence of the ordeal will come from the victims
themselves.
Their statements can be corroborated by other
evidence such as physical evidence left by the
torture or landmarks where detained.
Change of Name and
Cancellation or Correction of
Entries in the Civil Registry
DIFFERENCES UNDER THE APPLICABLE
RULES (RULE 103, RULE 108, RA 9048)
See Annex D
GROUNDS FOR CHANGE OF
NAME See Annex D
JURISPRUDENCE
Laperal vs. Republic (1962): Legal separation
is not a ground for the female spouse to apply
for a change of name under Rule 103.
No Yao Siong v. Republic (1966): The name that
can be changed is the name that appears in the
civil register, and not in the baptismal certificate or
that which the person is known in the community.
Ong Huan Tin v. Republic (1967): An alien
may petition for change of name but he must be
domiciled in the Philippines.
Oshito vs. Republic (1967): Verification is a
formal, not a jurisdictional, requirement. The lack
of verification is not a ground for dismissing the
petition. However, before setting the petition for
hearing, the court should have required the
petitioner to have the petition verified.
Go Chiung Beng vs. Republic (1972): All
aliases of the applicant must be set forth in the
petitions title. Such defect is fatal, even if said
aliases are contained in the body of the petition.
Secan Kok vs. Republic (1973): A change of
name granted by the court affects only a petitioner.
A separate petition for change of name must be
filed for his/her spouse and children.
Silverio vs. Republic (2007): A persons first name
cannot be changed on the ground of sex
reassignment. RA 9048 does not sanction a change
of first name on the ground of sex reassignment.
Before a person can legally change his given name,
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he must present proper or reasonable cause or
any compelling reason justifying such change. In
addition, he must show that he will be prejudiced
by the use of his true and official name. Silverio
failed to show, or even allege, any prejudice that
he might suffer as a result of using his true and
official name. Rather than avoiding confusion,
changing petitioners first name may only create
grave complications in the civil registry and the
public interest.
No law allows the change of entry in the birth
certificate as to sex on the ground of sex
reassignment. RA 9048 only allows correction of
clerical or typographical errors. A correction in the civil
registry involving the change of sex is not a mere
clerical or typographical error. The birth certificate of
petitioner contained no error. All entries therein,
including those corresponding to his first name and
sex, were all correct. No correction is necessary.
People vs. Cagandahan (2008): Intersexuality is a
valid ground for change of name and change of
entry of sex in the civil registry. Where the person
is biologically or naturally intersex the determining
factor in his gender classification would be what
the individual, having reached the age of majority,
with good reason, thinks of his sex. Sexual
development in cases of intersex persons makes
the gender classification at birth inconclusive. It is
at maturity that the gender of such persons is fixed.
Failure to implead the local civil registrar as well as all
persons who have or claim any interest did not render
the petition fatally defective. Cagandahan furnished
the local civil registrar a copy of the petition, the order
to publish, and all pleadings, orders or processes in
the course of the proceedings. There was therefore
substantial compliance of the provisions of Rules
103 and 108 of the Rules of Court.
Absentees
PURPOSE OF THE RULE
In Re: Petition for Declaration of Absence of Roberto L.
Reyes (1986): The declaration of absence made
in accordance with the provisions of the Civil
Code has for its SOLE PURPOSE to enable the
taking of the necessary precautions for the
administration of the estate of the absentee.
There is a need to have a person judicially
declared an absentee when:
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he has properties which have to be taken cared of
or administered by a representative appointed
by the Court [Article 384, Civil Code];
the spouse of the absentee is asking for separation of
property [Article 191, Civil Code]; or
his wife is asking the Court that the
administration of an classes of property in the
marriage be transferred to her [Article 196,
Civil Code].
General Rule: No independent action for declaration
of presumption of death [Nicolai v. Szatrow, 1948)]
Exception: For purpose of contracting a second
marriage [Article 41, Family Code]
WHO MAY FILE; WHEN TO FILE
Petition for Appointment of a Representative
[PAR] to provisionally represent absentee
When a person:
Disappears from his domicile, his whereabouts
being unknown
Has not left an agent to administer his property
or the power conferred upon the agent has
expired. [Sec. 1, Rule 107]
Who may file PAR
Any interested party
Relative
Friend [Sec. 1, Rule 107]
Petition for Declaration of Absence and
Appointment of Trustee or Administrator [PDA]
Filed after 2 years:
From the disappearance of and without any
news from the absentee OR
Since the receipt of the last news about him. Filed
after 5 years, if the absentee left an
administrator of his property. [Sec. 2, Rule 107]
Who may file PDA and be appointed
The spouse present
The heirs instituted in a will, who may present an
authentic copy of the same
The relatives who would succeed by the law of
intestacy
Those who have over the property of the
absentee some right subordinated to the
condition of his death. [Sec. 2, Rule 107]
WHEN TERMINATED
Absentee appears personally or through an agent
Absentees death is proved and heirs appear
Third person appears, showing that he acquired
title over the property of the absentee
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Cancellation or Correction of
Entries in the Civil Registry
ENTRIES SUBJECT TO CANCELLATION OR
CORRECTION UNDER RULE 108, IN
RELATION TO RA 9048
Under RULE 108: SUBSTANTIAL CHANGES in
entries in the civil registry, excluding name
(governed by Rule 103).
SUBSTANTIAL CHANGE change that affects the
civil status, citizenship, or nationality of a party.
Births
Marriage
Deaths
Legal separations
Judgments of annulments of marriage
Judgments declaring marriages void from the
beginning
Legitimations
Adoptions
Acknowledgments of natural children
Naturalization
Election, loss or recovery of citizenship
Civil interdiction
Judicial determination of filiation
Voluntary emancipation of a minor
Changes of name [Sec. 2, Rule 108]
Such changes have public interest implications and
must only be made upon approval of the Court.
Cancellation or correction of substantial errors is
allowed provided proceeding is adversary.
[Chiao Ben Lim v. Zosa (2004)]
APPROPRIATE ADVERSARY PROCEEDING
One where the trial court has conducted proceedings
where all relevant facts have been fully and properly
developed, where opposing counsel have been given
opportunity to demolish the opposite partys case, and
where the evidence has been thoroughly weighed and
considered. [Elosida v. Local Civil Registrar of
Quezon City (2002)]
PROCEDURAL REQUIREMENTS OF AN ADVERSARY
PROCEEDING
Parties Civil registrar and all persons who
have or claim any interest which would be
affected are made parties [Sec. 3, Rule 108]
Notice and publication Reasonable notice to
be given to the persons named in the
petition, and publication once a week for 3
consecutive weeks [Sec. 4, Rule 108]
Opposition 15 days from notice of petition, or
from last date of publication of notice [Sec. 5,
Rule 109]
SPECIAL PROCEEDINGS BAR OPERATIONS COMMISSION
Under RA 9048, as amended by RA 10172:
CLERICAL or TYPOGRAPHICAL ERRORS
General Rule: Entry in a civil register shall be
changed or corrected with a judicial order.
Exception:
Clerical or typographical errors and
Change of first name or nickname, the day and month
in the date of birth or sex of a person where it is
patently clear that there was a clerical or
typographical error or mistake in the entry, which
can be corrected or changed by the concerned
city or municipal civil registrar or consul general in
accordance with the provisions of this Act and its
implementing rules and regulations. [Sec. 1, RA
9048, as amended]
Clerical or typographical error: A mistake
committed in the performance of clerical work in
writing, copying, transcribing or typing an entry
in the civil register that:
Is harmless and innocuous.
Is visible to the eyes or obvious to the
understanding (Patent)
Can be corrected or changed only by reference
to other existing record or records
Does not involve the change of nationality, age,
status or sex of the petitioner. [Sec. 2(3), RA
9048, as amended]
Note: The procedure recited in Rule 103 regarding
change of name and in Rule 108 concerning the
cancellation or correction of entries in civil registry
are separate and distinct. They may not be
substituted one for the other. If both reliefs are to
be sought in the same proceedings all the
requirements of Rule 103 and 108 must be
complied with. [Republic v. Valencia (1986)]
Appeals in Special
Proceeding
JUDGMENTS AND ORDERS FOR WHICH
APPEAL MAY BE TAKEN
If it allows or disallows a will
If it wholly determines who are the lawful heirs or
the distributive shares
If it wholly or partially allows or disallows a claim
against a decedents estate, or any claim
presented on the decedents estate, or any
claim presented on the estates behalf on
offset to claim against it
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(4) If it settles the account of an controversy/appeal be distributed, upon

executor/administrator/trustee/guardian compliance with Rule 90. [Sec. 2, Rule 109]
If it constitutes a final determination in the lower
court of the rights of the party appealing in
proceedings relating to estate settlement or
administration of a trustee/guardian

Exception: Appointment of a special

administrator is not appealable

Remedy: Petition for certiorari under Rule 65,

if there is grave abuse of discretion.

If it is the final order/judgment rendered in the

case, and affects the substantial rights of the
person appealing [Sec. 1, Rule 109]

Exception: Orders granting/denying a MFR/MNT

While some of the items in Rule 109. Sec. 1 may be

considered as interlocutory under ordinary special
actions, the nature of special proceedings declares
them as appealable as exceptions to Rule 41, Sec. 1.

WHEN TO APPEAL
In a special proceeding, the period of appeal is 30
days. [Sec. 3, Rule 41]

The appeal period may be interrupted by the filing of

an MFR/MNT. Once the appeal period expires
without an appeal/MF/MNT, the order becomes
final.[Sec. 3, Rule 41]

However, habeas corpus, amparo and habeas data

cases have different periods of appeal. See Annex C

MODES OF APPEAL
NOTICE and RECORD ON APPEAL REQUIRED. [Sec.
3, Rule 41]

Rule 109 contemplates multiple appeals during the

pendency of special proceedings. A record on appeal
in addition to the notice of appeal is thus required
to be filed as the original records of the case should
remain with the trial court to enable the rest of the
case to proceed in the event that a separate and
distinct issue is resolved by said court and held to be
final. However, a record on appeal is not necessary
where no other matter remained to be heard and
determined by the trial court after it issued the
appealed order granting the petition for cancellation of
birth record and change of surname in the civil
registry. [Republic v. Nishina (2010)]

RULE ON ADVANCE DISTRIBUTION

Notwithstanding a pending controversy/appeal in
estate settlement proceedings, the court may permit
that the estates parts which are not affected by the

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ANNEX A
Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043)
Governing Body
DSWD Inter-country Adoption Board (ICAB)
When may adoption be resorted to
Adoption need not be the last resort Adoption only as last resort: No child shall be
matched to a foreign adoptive family unless it is
satisfactorily shown that the child cannot be adopted
locally [Sec.11]
Who may adopt
(1) Any FILIPINO CITIZEN (regardless of where (1) FILIPINO CITIZEN permanently residing abroad
residing) may file an application for inter-country adoption of a
(a) of legal age, Filipino child if he/she:
(b) at least sixteen (16) years older than the (a) is at least twenty-seven (27) years of age
adoptee, (may be waived when the adopter is (b) at least sixteen (16) years older than the child
the biological parent of the adoptee, or is the to be adopted, at the time of application
spouse of the adoptee's parent) unless the adopter is the parent by nature of
(c) in possession of full civil capacity and legal the child to be adopted or the spouse of such
rights, parent:
(d) of good moral character, has not been (c) has the capacity to act and assume all rights
convicted of any crime involving moral and responsibilities of parental authority under
turpitude, emotionally and psychologically his national laws, and has undergone the
capable of caring for children, appropriate counseling from an accredited
(e) who is in a position to support and care for counselor in his/her country;
his/her children in keeping with the means of (d) has not been convicted of a crime involving
the family. moral turpitude;
(e) is in a position to provide the proper care and
(2) Any ALIEN possessing the same qualifications as support and to give the necessary moral values
above stated for Filipino nationals: Provided, and example to all his children, including the
(a) that he/she has been living in the Philippines child to be adopted
for at least three (3) continuous years prior to (f) if married, his/her spouse must jointly file for
the filing of the application for adoption and the adoption;
maintains such residence until the adoption (g) is eligible to adopt under his/her national law;
decree is entered, (h) agrees to uphold the basic rights of the child
(b) that his/her country has diplomatic relations as embodied under Philippine laws, the U.N.
with the Republic of the Philippines, Convention on the Rights of the Child, and to
(c) he/she has been certified by his/her diplomatic abide by the rules and regulations issued to
or consular office or any appropriate implement the provisions of this Act;
government agency that he/she has the legal (i) comes from a country with whom the
capacity to adopt in his/her country, and Philippines has diplomatic relations and
(d) that his/her government allows the adoptee to whose government maintains a similarly
enter his/her country as his/her adopted authorized and accredited agency and that
son/daughter; adoption is allowed under his/her national
(e) that the requirements on residency and laws;
certification of the alien's qualification to adopt (j) possesses all the qualifications and none of the
in his/her country may be waived for the disqualifications provided herein and in other
following: applicable Philippine laws. [Sec. 9]
a former Filipino citizen who seeks to adopt (2) ALIEN with above qualifications
[Sec. 9] a relative within the fourth (4th) degree of
consanguinity or affinity; or
one who seeks to adopt the legitimate
son/daughter of his/her Filipino spouse; or
one who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a

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Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043)

relative within the fourth (4th) degree of

consanguinityor affinity of the Filipino
spouse; or
The GUARDIAN with respect to the ward after
the termination of the guardianship and clearance
of his/her financial accountabilities. [Sec. 7]
When 16 year difference may be waived:
If adopter is the biological parent of adoptee
If adopter is the spouse of adoptees parent
[Sec. 7]
Who may be adopted
(a) Any person below eighteen (18) years of age who (a) Filipino children [Sec. 3(a)]
has been administratively or judicially declared (b) Below 15 years of age [Sec. 3(b)]
available for adoption; (c) Who are legally free, meaning children who have
(b) The legitimate son/daughter of one spouse by the been voluntarily or involuntarily committed to the
other spouse; DSWD [Sec. 3(f) and Sec. 8]
An illegitimate son/daughter by a qualified IRR of 2004 adds that: Any child who has been adopter to
improve his/her status to that of voluntarily or involuntarily committed to the
legitimacy; Department as dependent, abandoned or neglected
A person of legal age if, prior to the adoption, said pursuant to the provisions of the Child and Youth
person has been consistently considered and Welfare Code may be the subject of Inter-Country
treated by the adopter(s) as his/her own child Adoption xxx [Sec. 26]
since minority;
A child whose adoption has been previously
rescinded; or
A child whose biological or adoptive parent(s) has
died: Provided, That no proceedings shall be
initiated within six (6) months from the time of
death of said parent(s). Sec. 8
Venue
Petition for adoption shall be filed with Family Court Either with the Philippine RTC having jurisdiction over of
the province or city where the prospective adoptive the child, or with the Inter-country Board through an
parents reside [Sec. 6, Adoption Rule] intermediate agency, in the country of the
adoptive parents [Sec. 10]

IRR of 2004 provides: Application shall be filed with

the Board or the Central Authority or the Foreign
Adoption Agency in the country where the applicant
resides. In case of foreign nationals who file petition
for adoption under RA 8552 or Domestic Adoption
Law, the Court after finding petition to be sufficient in
form and substance and proper case for inter-country
adoption shall immediately transmit the petition to
the board for appropriate action. (Sec. 30)
Trial Custody
Takes place in the Philippines Where adoptive parents reside [Sec. 14]
Rescission
Only upon petition of adoptee, never by adopters. No provision limiting act of rescission only to adoptee.
However, the adopter may disinherit the adoptee. In IRR, the procedure is provided for when adoption
[Sec. 19] process is terminated:
SECTION 47. DISRUPTION AND TERMINATION OF
PLACEMENT. - In the event of serious damage in the

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Domestic Adoption (RA 8552) Intercountry Adoption (RA 8043)

relationship between the child and the applicant/s

where the continued placement of the child is not in
his/her best interests, the Central Authority and/or
the FAA shall take the necessary measures to protect
the child, in particular, to cause the child to be
withdrawn from the applicant/s and to arrange for
his/her temporary care.

The Central Authority and/or FAA shall exhaust all

means to remove the cause of the unsatisfactory
relationship which impedes or prevents the creation of
a mutually satisfactory adoptive relationship. A
complete report should be immediately forwarded to
the Board with actions taken as well as
recommendations and appropriate plans. Based on
the report, the Board may terminate the pre-adoptive
relationship.

SEC. 48. NEW PLACEMENT FOR CHILD. - In the

event of termination of the pre-adoptive relationship,
the Board shall identify from the Roster of Approved
Applicants a suitable family with whom to place the
child. The Central Authority and/or the FAA may also
propose a replacement family whose application shall
be filed for the approval of the Board. No adoption
shall take place until after the Board has approved
the application of such replacement family.

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ANNEX B
HABEAS CORPUS (RULE 102) RULE ON CUSTODY AND HABEAS CORPUS FOR
MINORS (A.M. 03-04-04)
Rights involved
Right to liberty Petition for the rightful custody of a minor
Rightful custody of the aggrieved party
Situations applicable
Actual violation of the aggrieved partys right to Unlawful deprivation of rightful custody, or
liberty, or rightful custody [Sec. 1] A minor is being kept from a parent by the other
parent (e.g. which parent shall have the care and
custody of a minor, when such parent is in the midst
of nullity or legal separation proceedings). [Herrera.
Also Secs. 2 & 20]
Party authorized to file
Party for whose relief it is intended or by some person Any person claiming rightful custody this covers:
in his behalf [Sec. 1] (1) Unlawful deprivation of the custody of a minor
(2) Which parent shall have the care and custody of a
minor [Herrera]
Respondents
May or may not be an officer
Before which court or judicial authority filed
(1) RTC or any judge thereof A verified petition for a writ of habeas corpus involving
(2) CA or any member thereof in instances authorized custody of minors shall be filed with the Family Court.
by law The writ shall be enforceable within its judicial region
(3) SC or any member thereof [Sec. 2] to which the Family Court belongs.
Special jurisdiction given to first level courts in the However, the petition may be filed with the regular
absence of RTC judges in a province or city (Sec. 35, court in the absence of the presiding judge of the
BP 129) Family Court, provided, however, that the regular
(5) In aid of appellate jurisdiction of the court shall refer the case to the Family Court as soon
Sandiganbayan (RA 8249 further expanding its as its presiding judge returns to duty.
jurisdiction) The petition may also be filed with the appropriate
regular courts in places where there are no Family
Courts. [Sec. 20]
Contents of the petition
Signed, verified either by the party for whose relief it is The verified petition shall allege the following:
intended, or by some person in his behalf and shall (PRMO)
set forth: (PDIC) (1) The personal circumstances of the petitioner and of
(1) That the person in whose behalf the application is the respondent
made is imprisoned or restrained on his liberty; (2) The name, age and present whereabouts of the
The officer or name of the person by whom he is so minor and his or her relationship to the petitioner
and imprisoned or restrained or, if both are unknown or the respondent
uncertain, such officer or person may be described by (3) The material operative facts constituting
an assumed appellation, and the person who is served deprivation of custody and
with the writ shall be deemed the person intended; (4) Such other matters which are relevant to the
(3) The place where he is so imprisoned or restrained, custody of the minor.
if known; The verified petition shall be accompanied by a
(4) A copy of the commitment or cause of detention of certificate against forum shopping, which the
such person, if it can be procured without impairing petitioner must sign personally. [Sec. 4]
the efficiency of the remedy or, if the imprisonment or
restraint is without any legal authority, such fact shall
appear. [Sec. 3]
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ANNEX C

WRIT MATRIX (COMPARISON OF THE WRITS)

WHC Writ of Habeas Corpus WA Writ of Amparo
WD Writ of Habeas Data RWA - Rules on the Writ of Amparo
RWD Rules on Habeas Data SC Supreme Court
CA - Court of Appeals SB Sandiganbayan
RTC Regional Trial Court CoC Clerk of Court

Habeas Corpus Amparo Habeas Data

Nature, scope, function

All cases of illegal confinement and Involves right to life, liberty and
Involves the right to privacy in life,
detention which any person is security violated or threatened with
liberty or security violated or
deprived of his liberty or rightful violation by an unlawful act orthreatened by an unlawful act or
custody of any person is withheld omission of a public official or
omission of a public official or
from the person entitled [Sec. 1] employee or a private individual or
employee, or of a private individual or
entity. entity engaged in the gathering,
Actual violation before writ issues. collecting or storing of data or
Note Villavicencio v. Lukban on It covers extralegal killings and information regarding the person,
applicability of the writ in case of enforced disappearances or threatsfamily, home and correspondence of
constructive restraint. thereof. [Sec. 1] the aggrieved party. [Sec. 1]
Limitations
May be suspended in cases of Shall not diminish, increase or modify Shall not diminish, increase or modify
invasion or rebellion when public substantive rights [Sec. 23] substantive rights [Sec. 23]
safety requires it [Art. III Sec. 15, 1987
Const.]
Who may file
By a petition signed and verified by Petition filed by the aggrieved party Any aggrieved party may file a
the party for whose relief it is or by any qualified person or entity in petition for the WHD
intended, or by some person on his the following order:
behalf [Sec. 3] (1) Any member of the immediateHowever, in cases of extralegal
family killings and enforced disappearances,
(2) Any ascendant, descendant or the petition may be filed by (also
collateral relative of thesuccessive):
aggrieved within the 4th civil (1) Any member of the immediate
degree of consanguinity or family of the aggrieved
affinity (2) Any ascendant, descendant or
(3) Any concerned citizen, collateral relative of the aggrieved
organization, association or party within the fourth civil degree
institution of consanguinity or affinity [Sec.
2]
Filing by the aggrieved suspends the
right of all others [Sec. 2]
Where filed
Granted by: Filed on any day and at any time: Petition may be filed with RTC where
(1) SC or any member thereof, on any (1) SB, CA, SC, or any justice of such the petitioner or respondent resides
day and at any time courts or that which has jurisdiction over the
(2) CA or any member thereof in (2) RTC of place where the threat, place where the data or information
instances authorized by law act, or omission was committed or is gathered, collected or stored, at
(3) RTC or a judge thereof, on any any element occurred [Sec. 4] the option of petitioner
day and at any time, enforceable If public data files of government
only within his judicial district offices, petition shall be filed with the

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Habeas Corpus Amparo Habeas Data

[Sec. 2] SC, CA, or SB [Sec. 3]

MTC OR FIRST LEVEL COURTS in
the absence of RTC judges in a
judicial region [Sec. 35 BP 129]
Where enforceable
If SC or CA issued, anywhere in the Writ shall be enforceable anywhere in Writ shall be enforceable anywhere in
Philippines the Philippines [Sec. 4] the Philippines [Sec. 3]

If granted by the RTC or judge

thereof, it is enforceable in any part
of the judicial region [Sec 21, BP 129
which modified the term judicial
district in Sec 2, Rule 102 into judicial
region] where the judge sits
Where returnable
If the one that granted the writ: If the one that granted the writ: If issued by:
(1) Is the SC or CA, or a member (1) Is the SC or any of its justices, (1) The SC or any of its justices,
thereof, returnable before such returnable before such court or before such Court or any justice
court or any member thereof or an any justice thereof, or before the thereof, or CA or SB or any of its
RTC SB or CA or any of their justices, or justices, or the RTC of the place
(2) An RTC, or a judge thereof, to any RTC of the place where the where the petitioner or
returnable before himself [Sec. 2] threat, act or omission was respondent resides/has
committed or any of its elements jurisdiction over the place where
occurred the data or information is
(2) The SB or CA or any of their gathered, stored or collected
justices, returnable before such(2) The CA or SB or any of its justices,
court or any justice thereof, or to before such court or any justice
any RTC of the place where the thereof, or the RTC (same with
threat, act, or omission was scenario: SC issued and then
committed or any of its elements returned in RTC)
occurred (3) RTC, returnable before such court
(3) The RTC or any judge thereof, or judge [Sec. 4]
returnable before such court or
judge [Sec. 3]
Docket Fees
Upon the final disposition of such Petitioner shall be exempted fromNone for indigent petitioner
proceedings the court or judge shall the payment of the docket and other Petition shall be docketed and acted
make such order as to costs as the lawful fees upon immediately, without prejudice
case requires [Sec. 19] to subsequent submission of proof of
Court, justice or judge shall docket indigency not later than 15 days from
the petition and act upon it filing [Sec. 5]
immediately [Sec 4]
Essential allegations/ Contents of petition
Signed and verified either by the Signed and verified and shall allege: Verified and written petition shall
party for whose relief it is intended or (1) The personal circumstances of the contain:
by some person on his behalf, setting petitioner (1) Personal circumstances of
forth: (2) Name or appellation and petitioner and respondent
(1) The person in whose behalf whose circumstances of the respondent (2) Manner the right to privacy is
the application is made is(3) The right to life, liberty, and violated or threatened and its
imprisoned or restrained of his security violated or threatened effects
liberty with violation, (3) Actions and recourses taken by
(2) Name of the person detaining(4) The investigation conducted, if the petitioner to secure the data

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another or assumed appellation any, plus circumstances of each or information

(3) Place where he is imprisoned or (5) The actions and recourses taken (4) The location of the files, registers,
restrained of his liberty by the petitioner or databases, the government
(4) Cause of detention [Sec. 3] (6) Relief prayed for may include a office, and the person in charge or
general prayer for other just and control
equitable reliefs [Sec. 5] (5) The reliefs prayed for Such other
relevant reliefs as are just and
equitable [Sec. 6]
When proper
Court or judge must, when a petition Upon the filing of the petition, the Upon filing of the petition, the court,
is presented and it appears that it court, justice, or judge shall justice, or judge shall immediately
ought to issue, grant the same and immediately order the issuance of the order the issuance of the writ if on its
then: writ if on its face it ought to issue face it ought to issue.
the clerk of court (CoC) shall issue CoC shall issue the writ under the
the writ under the seal of the court or seal of the court or CoC shall issue the writ under the
in case of emergency, the judge may seal of the court and cause it to be
issue the writ under his own hand, In case of urgent necessity, the justice served within 3 days from issuance or
and may depute any officer or person or the judge may issue the writ under In case of urgent necessity, the justice
to serve it his or her own hand, and may or judge may issue the writ under his
deputize any officer or person to or her own hand, and may deputize
Also proper to be issued when the serve it. [Sec. 6] any officer or person to serve it [Sec.
court or judge has examined into the 7]
cause of restraint of the prisoner, and
is satisfied that he is unlawfully
imprisoned (Sec. 5]
How and who serves
Writ may be served in any province by The writ shall be served upon the The writ shall be served upon the
the (a) sheriff, (b) other proper officer,
respondent by a judicial officer or by respondent by a judicial officer or by
or (c) person deputed by the court or a person deputized by the court, a person deputized by the court,
judge justice or judge who shall retain a justice or judge who shall retain a
copy on which to make a return of copy on which to make a return of
Service is made by leaving the service service
original with the person to whom it is
directed and preserving a copy on In case the writ cannot be served In case the writ cannot be served
which to make return of service personally on the respondent, the personally on the respondent, the
rules on substituted service shall rules on substituted service shall
If that person cannot be found, or has apply [Sec. 8] apply [Sec. 9]
not the prisoner in his custody,
service shall be made on any other
person having or exercising such
custody [Sec. 7]
Respondent
May or may not be an officer [Sec. 6] Respondent is a public official or A public official or employee or a
employee or private individual or private individual or entity engaged in
entity [Sec. 1] gathering, collecting or storing data
[Sec. 1]
How executed and returned
The officer to whom the writ is Respondent files the return [Sec. 9] Respondent files the return [Sec. 10]
directed shall convey the person so
imprisoned or restrained before:
the judge allowing the writ, or
-in his absence or disability,

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before some other judge of the

same court on the day specified in
the writ, unless person directed to
be produced is sick or infirm, and
cannot, without danger, be
brought therein
(c) officer shall then make due return
of the writ, with the day and cause
of the caption and restraint
according to the command
thereof [Sec. 8]
When to file return
On the day specified on the writ [Sec. Within 5 working days after service of Same with WA [Sec. 10]
8] the writ [Sec. 9]
Contents of return
When the person to be produced is Within 5 working days after service of (1) Lawful defenses such as national
imprisoned or restrained by an the writ, the respondent shall file a security, state secrets, privileged
officer, the person who makes the verified written return together with communications, confidentiality
return shall state, and in other cases supporting affidavits which shall, of the source of information of
the person in whose custody the contain: media etc.
prisoner is found shall state in writing (1) Lawful defenses (2) In case of respondent in charge, in
to the court or judge before whom (2) The steps or actions taken to possession or in control of the
the writ is returnable: determine the fate or data or information subject of the
(1) Truth of custody/power over the whereabouts of the aggrieved petition:
aggrieved party party (a) A disclosure of the data or
(2) If he has custody or power, or (3) All relevant information in the information about the
under restraint, the authority and possession of the respondent petitioner, the nature of such
the cause thereof, with a copy of pertaining to the threat, act or data or information, and the
the writ, order, execution or other omission against the aggrieved purpose for its collection
process, if any upon which the party (b) The steps or actions taken by
party is held (4) If the respondent is a public the respondent to ensure the
(3) If the party is in his custody or official or employee, the return security and confidentiality of
power, and is not produced, shall further state acts: the data or information
particularly the nature and gravity (a) To verify identity of aggrieved (c) The currency and accuracy of
of the sickness or infirmity party the data or information held
(4) If he has had the party in his (b) To recover and preserve Other allegations relevant to the
custody or power, and has evidence resolution of the proceeding [Sec.10]
transferred such custody or (c) To identify and collect witness
restraint to another, particularly statements
to whom, at what time, for what (d) To determine cause, manner,
cause, and by what authority such location, and time of death or
transfer was made. [Sec. 10] disappearance
To identify and apprehend
persons involved
Bring suspected offenders
before a competent court
[Sec.9]
Is period of return extendable?
No, not even on highly meritorious Yes, by the court, for justifiable
grounds. reasons [Sec. 10]
Is a general denial allowed?
Not allowed [Sec. 9] Not allowed [Sec. 10]

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Habeas Corpus
As specified in the writ [Sec. 8]
In custody of minors: a motion to
dismiss, except on the ground of lack
of jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]
Clear and convincing evidence [Dizon Establish claims by substantial Substantial evidence required to
v. Eduardo (1988)]
Note: no provision in Rule but in
Dizon v. Eduardo, the SC used clear
and convincing evidence, a stricter (b) if public official or employee,
standard than preponderance of
evidence but less stricter that proof
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Defenses not pleaded
If not raised in return deemed waived
[Sec 10]
Effect of failure to file return
Court or justice shall proceed to hear Court, judge, or justice shall hear the
the petition ex parte [Sec. 12] motion ex parte, granting the
petitioner such reliefs as the petition
may warrant
Unless the court in its discretion
requires the petitioner to submit
evidence [Sec. 14]
Nature of Hearing
Summary. However, the court,Summary. With possibility of
justice, or judge may call for apreliminary conference similar to the
preliminary conference to simplify the WA [Sec. 14]
issues and look at possibility of
obtaining stipulations andHearing on chambers may be
admissions from the parties. conducted where respondent invokes
the defense of national security or
Hearing shall be from day to day until state secrets, or the data is of
completed same priority as petitions privileged character [Sec. 12]
for WHC [Sec. 13]
Date and time of hearing
As specified in the writ, not later than As specified in the writ, not later than
7 days from the issuance of the writ 10 working days from the date of
[Sec. 6] issuance writ [Sec. 7]
Prohibited pleadings
Motion to dismiss, Motion forSame as WA [RWD Sec. 13]
extension of time to file opposition,
affidavit, position paper and other
pleadings, Dilatory motion for
postponement, Motion for bill of
particulars, Counterclaims or cross-
claims, Third-party complaint, Reply,
Motion to declare respondent in
default, Intervention, Memorandum,
Motion for reconsideration of
interlocutory orders or interim relief
orders, petition for certiorari,
mandamus, or prohibition [Sec.11]
Burden of Proof/Standard of Diligence
evidence prove the allegations in the petition
(a) if respondent is a private [Sec. 16]
individual or entity, ordinary
diligence
extraordinary diligence [Sec. 17]
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beyond reasonable doubt.
Presumption of Official duty
Yes. Consonant with Sec. 13, stating Public official or employee cannot
that if warrant of commitment is in invoke the presumption that official
pursuance with law, serves as prima duty has been regularly performed
facie cause of restraint [Sec. 17]
Judgment
The court shall render judgment Within 10 days from the time the
within 10 days from the time the petition is submitted for decision
petition is submitted for[Sec. 16]
decision [Sec. 18]
Appeal
Within 48 hours from notice of the 5 working days from the date of 5 working days from the date of
judgment of final order appealed notice of adverse judgment to the SC notice of adverse judgment to the SC
[Sec. 39, BP 129] under Rule 45 [Sec. 19] under Rule 45 [Sec. 19]
Consolidation of actions
Consolidated with a criminal action Consolidated with a criminal action
filed subsequent to the petition [Sec.filed subsequent to the petition [Sec.
23] 21]
Effect of filing criminal action
No more separate petition shall be Same as WA [Sec. 21]
filed. Reliefs available by motion in
the criminal case [Sec. 22]

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ANNEX D
Rule 103 Rule 108 RA 9048
Applicability
Substantial Changes Substantial changes in entries in the Change of First Names or Nicknames
civil registry (other than name) Change brought about by clerical or
typographical errors
Nature
Judicial Judicial Administrative
Who May File
1.The person desiring to change his Natural person having direct and A natural person having direct and
name personal interest in the correction of personal interest in the change of
2.Some other person on his behalf error in an entry in the civil register first name or nickname in the civil
register.
Where Filed
A natural person having direct and RTC of the province where the civil The local civil registry office of the
personal interest in the change of registry is located city or municipality where the record
first name or nickname in the civil being sought to be
register. corrected/changed is kept.
EXCEPTIONS:

If the petitioner has already migrated

to another place in the country, the
petition shall be filed with local civil
registrar of the place where the
interested party is presently residing
or domiciled
If the petitioner is a Filipino citizen

presently residing or domiciled in a

foreign country, the petition shall be
filed in the nearest Philippine
Consulate.
Rationale: It would not be practical

for him, in terms of transportation

Not a party to the proceeding
No mention of notice to be sent
Title: In Re: Petition for Change of
Name of X, also known as Y and Z, to
expenses, time and effort, to appear
in person before the local civil
registrar (LCR) keeping the
documents to be corrected or
changed
Standing of the LCR
Made a party to the proceeding as a
respondent
Notice requirement
The court shall cause reasonable
notice to be given to persons named
in the petition
Contents of Petition
(1) Facts necessary to establish the
merits of the petition.

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Rule 103
ABC. X, Petitioner.
Names or Aliases of the Applicant
(must appear in the caption of the
petition)
Omission is fatal to the petition
To allow a reader of the published
petition to notice the said aliases
Petitioner has been a bona fide
resident of the province where the
petition is filed for at least 3 years
prior to the date of such filing.
Cause for which the change of the
petitioner's name is sought
Petitioner must show a proper or
compelling reason for the change of
name + the fact that he will be
prejudiced by the use of his official
name.
The petition shall be signed and Verified petition
verified.
(1) Filing of petition for change of (1) Filing of petition
name.
(2) Court shall promulgate an order
fixing a date and place for hearing
the petition. The date set for the
hearing shall NOT be:
Within 30 days prior to an election
AND
Within 4 months after the last
publication of the notice.
(3) Court shall direct a copy of the
order to be published before the
hearing
At least once a week for 3 successive
weeks
In some newspaper of general
circulation published in the
province.
(4) Hearing shall be conducted.
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(2) A showing that the petitioner is
competent to testify to the
matters stated.
(3) Particular erroneous entry or
entries which are sought to be
corrected and/or the change
sought to be made.
Form of Petition
(1) In the form of an affidavit
(2) Verified
(3) Subscribed and sworn to before
any person authorized by law to
administer oaths
Procedure for Changing of Name
(1) Filing of petition and its
supporting papers in 3 copies to
(2) Court shall promulgate an order be distributed to:
fixing the time and place for (a) The concerned city or
hearing the petition and cause municipal civil registrar or the
reasonable notice to be given to consul general
the persons named in the petition. (b) The Office of the Civil
Registrar General
Civil registrar and all persons who (c) The petitioner
have or claim any interest which
would be affected thereby shall (2) The City or Municipal Registrar or
be made parties to the the Consul General shall post the
proceeding petition in a conspicuous place for
ten 10 consecutive days after he
(3) Court shall direct a copy of the finds the petition and its
order to be published before the supporting documents sufficient
hearing in form and substance.
At least once a week for 3
successive weeks (3) The petition shall be published at
In some newspaper of general least once a week for 2
circulation published in the consecutive weeks in a newspaper
province. of general circulation.
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Rule 103 Rule 108 RA 9048

The SolGen or the proper
provincial or city fiscal shall (4) File opposition (4) The City or Municipal Registrar or
appear on behalf of the Within 15 days from notice of the the Consul General shall render a
Government of the Republic. petition or from the last date of decision not later than 5 working
publication days after the completion of the
(5) Judgment granting or denying the posting and/ or publication
change of name. (5) Hearing shall be conducted. requirement. He shall transmit a
Court may expedite the proceedings copy of his decision together with
(6) Copy of judgments shall be and also grant preliminary the records of the proceedings to
furnished the civil registrar of the injunction for preservation of the Office of the Civil Registrar
municipality or city where the rights of the parties General within 5 working days
court issuing the same is situated, from the date of the decision.
who shall forthwith enter the (6) Judgment granting or denying the
same in the civil register. change of name. Where the petition is denied by
the city or municipal civil registrar
(7) Copy of judgments shall be or the consul general, the
furnished the civil registrar petitioner may either appeal the
concerned who shall annotate the decision to the civil registrar
same in the records general or file the appropriate
petition with the proper court.
(5) The Civil Registrar General shall,

within 10 working days from

receipt of the decision granting a
petition, exercise the power to
impugn such decision by way of
an objection.
Grounds for objection

(a) The error is not clerical or

typographical
(b) The correction of an entry or
entries in the civil register is
substantial or controversial as it
affects the civil status of a
person
(c) The basis used in changing the
first name or nickname of a
person does not fall under one of
the valid grounds.
If the civil registrar general fails to

exercise his power to impugn the

decision of the city or municipal
registrar or of the consul general
within the period, such decision shall
become final and executory.
(6) The civil registrar general shall

immediately notify the city or

municipal civil registrar or the consul
general of the action taken on the
decision.
(7) Upon receipt of the notice thereof,

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Rule 103 Rule 108 RA 9048

the city or municipal civil registrar or

the consul general shall notify the
petitioner of such action.
(8) Appeal. The petitioner may seek

reconsideration with the civil

registrar general or file the
appropriate petition with the
proper court.
Opposition
Any interested person Civil registrar and any person having N/A
or claiming interest under the entry NOTE: The Civil Registrar General is
whose cancellation or correction is given the power to object to the
sought decision of the Local Civil Registrar
Grounds for Change of Name
Republic v. Hernandez: ValidEntries subject to cancellation or Sec. 4: Grounds for Change of
Grounds for Change of Name correction: FirstName or Nickname
(1) The name is ridiculous, tainted (1)Birth (1) The first name or nickname is
with dishonor or extremely(2)Marriage ridiculous, tainted with dishonor
difficult to write or pronounce. (3)Death or extremely difficult to write or
(2) Change results as a legal (4)Legal separation pronounce.
consequence of legitimation (5)Judgment of annulment (2) The new first name or nickname
(3) The change will avoid confusion. (6)Judgment declaring marriage null hasbeen habitually and
(4) A sincere desire to adopt a and void continuously used by the
Filipino name to erase signs of (7)Legitimation petitioner and he has been
former alienage (Ang Chay vs. (8)Adoption publicly known by the first name
Republic, 1970) (9)Acknowledgment of natural or nickname in the community.
(5) Having continuously used and children (3) The change will avoid confusion.
been known since childhood by a (10)Naturalization
Filipino name, having been(11)Election, loss or recovery of
unaware of alien parentage (Uy citizenship
vs. Republic, 1965) (12)Civil interdiction
(13)Judicial determination of filiation
(14)Voluntary emancipation of minor
(15)Changes of name

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