LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Is there a vested right in the rules of evidence?

No, because the rules of evidence are subject to change by the SC pursuant to its powers to promulgate rules
concerning pleading, practice and procedure.

What is the rule regarding the change in the rules of evidence?

It is subject to the constitutional limitation on the enactment of ex post facto laws

How shall the Rules of Court be construed?

The Rules of Court should be liberally construed in order to promote their objective of securing a just, speedy and
inexpensive disposition of every action and proceeding (Sec. 6, Rule 1)

What is the Rule-Making Power of the Supreme Court?

Section 5 (5), Art. VIII of the Constitution provides that the Supreme Court shall have the power to 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. Such rules shall
provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of
the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts
and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

Limitations of the Rule-making Power of the Supreme Court

(1) The rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases
(2) They shall be uniform for all courts of the same grade
(3) They shall not diminish, increase, or modify substantive rights (Sec. 5[5], Art. VIII, Constitution).
(4) The power to admit attorneys to the Bar is not an arbitrary and despotic one, to be exercised at the pleasure of
the court, or from passion, prejudice or personal hostility, but is the duty of the court to exercise and regulate it by
a sound and judicial discretion. (Andres vs. Cabrera, 127 SCRA 802)

Is a respondent entitled to be furnished with evidence submitted by his co-respondents during the preliminary
investigation conducted by the ombudsman?

No. It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine or cross-examine (Estrada vs.
Ombudsman, G.R. Nos. 212140-41, January 21, 2015)

Do MTC judges have authority to issue hold departure orders?

No. Supreme Court Cir. No. 39-97 dated June 19, 1997 limits the authority to issue hold departure orders to the RTCs
in criminal cases within their exclusive jurisdiction. Consequently, MTC judges have no authority to issue hold-
departure orders, following the maxim, express mention implies the exclusion. Neither does he have authority to
cancel one which he issued (Huggland vs. Lantin, AM MTJ-98-1153, Feb. 29, 2000).

Page 1 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

What is the exception to the principle of Judicial Hierarchy?

Under the principle of hierarchy of courts, direct recourse to this Court is improper because the Supreme Court is a
court of last resort and must remain to be so in order for it to satisfactorily perform its constitutional functions,
thereby allowing it to devote its time and attention to matters within its exclusive jurisdiction and preventing the
overcrowding of its docket. Nonetheless, the invocation of this Court's original jurisdiction to issue writs
of certiorari has been allowed in certain instances on the ground of special and important reasons clearly stated in
the petition, such as, (1) when dictated by the public welfare and the advancement of public policy; (2) when
demanded by the broader interest of justice; (3) when the challenged orders were patent nullities; or (4) when
analogous exceptional and compelling circumstances called for and justified the immediate and direct handling of
the case (Dy vs. Bibat Palamos, GR No. 196200, Sep 11, 2013).

What is the right of a third party claimant in filing of Terceria?

The right of a third-party claimant to file a terceria is founded on his title or right of possession. Corollary thereto,
before the court can exercise its supervisory power to direct the release of the property mistakenly levied and the
restoration thereof to its rightful owner, the claimant must first unmistakably establish his ownership or right of
possession thereon. In Spouses Sy v. Hon. Discaya, we declared that for a third-party claim or a terceria to prosper,
the claimant must first sufficiently establish his right on the property: If the claimant's proofs do not persuade the
court of the validity of his title or right of possession thereto, the claim will be denied. Tax Declaration and possession
cannot simply be overthrown by alleged mistake committed by the assessor’s office in registering the property in
the name of another (Villasi vs. Garcia, G.R. No. 190106, January 15, 2014).

Exception to the Doctrine of Exhaustion of Administrative Remedies

The doctrine of exhaustion of administrative remedies and the corollary doctrine of primary jurisdiction, which are
based on sound public policy and practical considerations, are not inflexible rules. There are many accepted
exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b) where the
challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is unreasonable
delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount involved is relatively
small so as to make the rule impractical and oppressive; (e) where the question involved is purely legal and will
ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent; (g) when its
application may cause great and irreparable damage; (h) where the controverted acts violate due process; (i) when
the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there is no other plain,
speedy and adequate remedy; (k) when strong public interest is involved; and, (l) in quo warranto proceedings
(Additional Hills Mandaluyong Civic & Social Organization, Inc. vs. Megaworld, G.R. No. 175039, April 18, 2012).

How to contest actionable document if pleaded in the answer?

When an action or defense is founded upon a written instrument, copied in or attached to the corresponding
pleading as provided in the preceding section, the genuineness and due execution of the instrument shall be deemed
admitted unless the adverse party, under oath, specifically denies them, and sets forth what he claims to be the
facts; but this provision does not apply when the adverse party does not appear to be a party to the instrument or
when compliance with an order for an inspection of the original instrument is refused. THEREFORE, IF ACTIONABLE
DOCUMENT IS PLEADED IN AN ANSWER, THE PLAINTIFF MUST FILE A REPLY SPECIFICALLY DENYING UNDER OATH
SUCH DOCUMENT; OTHERWISE THE GENUINENESS AND DUE EXECUTION OF SUCH DOCUMENT IS ADMITTED.

Page 2 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Extra Territorial Service

Section 15, Rule 14, it is apparent that there are only four instances wherein a defendant who is a non-resident and
is not found in the country may be served with summons by extraterritorial service, to wit: (1) when the action
affects the personal status of the plaintiffs; (2) when the action relates to, or the subject of which is property, within
the Philippines, in which the defendant claims a lien or an interest, actual or contingent; (3) when the relief
demanded in such action consists, wholly or in part, in excluding the defendant from any interest in property located
in the Philippines; and (4) when the defendant non-resident's property has been attached within the Philippines. In
these instances, service of summons may be effected by (a) personal service out of the country, with leave of court;
(b) publication, also with leave of court; or (c) any other manner the court may deem sufficient (NM Rothschild vs.
Lepanto, G.R. No. 175799, November 28, 2011).

Chain of custody in relation to Comprehensive Drug Act of 2002

The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so
confiscated, seized and/or surrendered, for proper disposition in the following manner:

(a)The apprehending team having initial custody and control of the drugs shall, immediately after seizure and
confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from
whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the DOJ, and any elected public official who shall be required to sign the copies of the inventory and be
given a copy thereof;
(b) Within 24 hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled
precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same
shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;
(c) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic
laboratory examiner, shall be issued within 24 hours after the receipt of the subject item/s: Provided, that when the
volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals
does not allow the completion of testing within the time frame, a partial laboratory examination report shall be
provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory:
Provided, however, that a final certification shall be issued on the completed forensic laboratory examination on the
same within the next 24 hours;
(d) After the filing of the criminal case, the Court shall, within 72 hours, conduct an ocular inspection of the
confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled
precursors and essential chemicals, including the instruments/ paraphernalia and/or laboratory equipment, and
through the PDEA shall within 24 hours thereafter proceed with the destruction or burning of the same, in the
presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her
representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public
official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s
which shall be borne by the offender: Provided, that those item/s of unlawful commerce, as determined by the
Board, shall be donated, used or recycled for legitimate purposes: Provided further, that a representative sample,
duly weighed and recorded is retained;
(e) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s
which, together with the representative sample/s in the custody of the PDEA, shall be submitted to the court having
jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as
determined by the Board; and
(f) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above
proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused
refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within 71
hours before the actual burning or destruction or the evidence in question, the SOJ shall appoint a member of the
PAO to represent the former;

Page 3 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

(g) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented
as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall
request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and
destruction within 24 hours from receipt of the same.

Revised rules on summary procedure (subject matter)

1. Civil cases:
a. All cases of forcible entry and unlawful detainer, irrespective of amount of damages or unpaid rentals sought to
be recovered provided when attorney’s fees are awarded, the same shall not exceed P20,000.00; and
b. All other civil cases, except probate proceedings, where the total amount of the plaintiff’s claim does
not exceed P100,000 or P200,000 in Metropolitan Manila, exclusive of interest and costs (As amended by A.M. No.
02-11-09-SC effective Nov. 5, 2002)

2. Criminal cases:
a. Violations of traffic laws, rules and regulations;
b. Violations of rental law;
c. Violations of municipal or city ordinances;
d. All other criminal cases where the penalty prescribed by law for the offense charged is imprisonment not
exceeding 6 months or a fine not exceeding P1,000.00, or both, irrespective of other imposable penalties, accessory
or otherwise, or of the civil liability arising there from. Provided however, that in offenses involving damage to
property through criminal negligence, this Rule shall govern where the imposable fine does not exceed P10,000.00
and

3. Violation of bouncing checks law (Sec. 1).

In case of failure of the defendant to answer, the court, motu proprio or on motion of the plaintiff, shall render
judgment as may be warranted by the facts alleged in the complaint and limited to what is prayed for (Sec 6). This
is without prejudice to the applicability of Sec. 4, Rule 18 of the Rules of Court, stating that the non-appearance of
the party in a pre-trial may be excused if valid cause is shown or a representative authorized in writing appears in
his behalf.

Officers authorized to conduct preliminary investigation:

(a) Provincial or city prosecutors and their assistants;

(b) National and Regional State Prosecutors; and
(c) Other officers as may be authorized by law (COMELEC, PCGG, Ombudsman)
Their authority to conduct preliminary investigation shall include all crimes cognizable by the proper court in their
respective territorial jurisdictions (Sec. 2, as amended by AM 05-8-26-SC, Oct. 3, 2005).

Requisites for arrest warrant issued by a RTC judge under Sec. 5, Rule 112:

(a) Within 10 days from the filing of the complaint or information

(b) The judge shall personally evaluate the resolution of the prosecutor and its supporting evidence.
(c) If he finds probable cause, he shall issue a warrant of arrest
(d) In case of doubt on the existence of probable cause
 The judge may order the prosecutor to present additional evidence within 5 days from notice; and
 The issue must be resolved by the court within 30 days from the filing of the complaint of information.

Requisites for issuing search warrant under Sec. 4, Rule 126:

(a) It must be issued upon probable cause in connection with one specific offense;

Page 4 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

(b) The probable cause must be determined by the judge himself and not by the applicant or any other person;
(c) In the determination of probable cause, the judge must examine under oath or affirmation, the complainant and
the witness he may produce; and
(d) The warrant issued must particularly describe the place to be searched and the things to be seized which may be
anywhere in the Philippines.

Rules on verification and certification against forum shopping:

For the guidance of the bench and bar, the Court restates in capsule form the jurisprudential pronouncements . . .
respecting non-compliance with the requirement on, or submission of defective, verification and certification against
forum shopping:
1) A distinction must be made between non-compliance with the requirement on or submission of defective
verification, and non-compliance with the requirement on or submission of defective certification against
forum shopping.
2) As to verification, non-compliance therewith or a defect therein does not necessarily render the pleading
fatally defective. The court may order its submission or correction or act on the pleading if the attending
circumstances are such that strict compliance with the Rule may be dispensed with in order that the ends of
justice may be served thereby.
3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth
of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition
have been made in good faith or are true and correct.
4) As to certification against forum shopping, non-compliance therewith or a defect therein, unlike in
verification, is generally not curable by its subsequent submission or correction thereof, unless there is a
need to relax the Rule on the ground of “substantial compliance” or presence of “special circumstances or
compelling reasons.”
5) The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; otherwise,
those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances,
however, as when all the plaintiffs or petitioners share a common interest and invoke a common cause of
action or defense, the signature of only one of them in the certification against forum shopping substantially
complies with the Rule.
6) Finally, the certification against forum shopping must be executed by the party-pleader, not by his counsel.
If, however, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a
Special Power of Attorney designating his counsel of record to sign on his behalf (Altres vs. Empleo, G.R. No.
180986, December 10, 2008)

Hypothetical Admission Rule

No other principle in remedial law is more settled than that when a motion to dismiss is filed, the material allegations
of the complaint are deemed to be hypothetically admitted. This hypothetical admission, according to View master
Construction Corporation v. Roxas, 335 SCRA 540 (2000) and Navoa v. Court of Appeals, 251 SCRA 545 (1995) extends
not only to the relevant and material facts well pleaded in the complaint, but also to inferences that may be fairly
deduced from them. Thus, where it appears that the allegations in the complaint furnish sufficient basis on which
the complaint can be maintained, the same should not be dismissed regardless of the defenses that may be raised
by the defendants. Stated differently, where the motion to dismiss is predicated on grounds that are not indubitable,
the better policy is to deny the motion without prejudice to taking such measures as may be proper to assure that
the ends of justice may be served ( Municipality of Hagonoy, Bulacan vs. Dumdum, Jr., 616 SCRA 315, G.R. No.
168289, March 22, 2010).

Page 5 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Omnibus Motion Rule

As a basic principle, courts look with disfavor on piecemeal arguments in motions filed by the parties. Under the
omnibus motion rule, a motion attacking a pleading, order, judgment, or proceeding shall include all objections then
available. The purpose of this rule is to obviate multiplicity of motions and to discourage dilatory motions and
pleadings. Party litigants should not be allowed to reiterate identical motions, speculating on the possible change of
opinion of the courts or of the judges thereof (Tung Ho Steel Enterprises Corporation vs. Ting Guan Trading
Corporation, 720 SCRA 707, G.R. No. 182153 April 7, 2014).

How many motion to dismiss is allowed by the court?

The Rules of Court only allows the filing of a motion to dismiss once. Ting Guan’s filing of successive motions to
dismiss, under the guise of “supplemental motion to dismiss” or “motion for reconsideration,” is not only improper
but also dilatory. Ting Guan’s belated reliance on the improper service of summons was a mere afterthought, if not
a bad faith ploy to avoid the foreign arbitral award’s enforcement which is still at its preliminary stage after the lapse
of almost a decade since the filing of the complaint (Tung Ho Steel Enterprises Corporation vs. Ting Guan Trading
Corporation, 720 SCRA 707, G.R. No. 182153 April 7, 2014)

Computation of time of filing of pleadings

We emphasized in Bank of the Philippine Islands v. Court of Appeals, 490 SCRA 168 (2006), that non-working days
(Saturdays, Sundays, and legal holidays) are excluded from the counting of the period only when the last day of the
period falls on such days. Rule 22 does not provide for any other circumstance in which non-working days would
affect the counting of a prescribed period (Leynes vs. Former Tenth Division of the Court of Appeals, 640 SCRA 25,
G.R. No. 154462 January 19, 2011)

Bail

Bail is a matter of right before final conviction, but the rule is not absolute. The exception is when a person is charged
with a capital offense when the evidence of guilt is strong, or when the offense for which on is charged is punishable
by reclusion perpetua. The exception to this rule, however, is even if a person is charged with a capital offense where
the evidence of guilt is strong, if the accused has failing health, hence, for humanitarian reasons, he may be admitted
to bail, but that is discretionary on the part of the court (De La Ramos vs. People‘s Court, 77 Phil. 461; Catiis vs. CA,
487 SCRA 71)

Difference of production order under the Amparo Rule from search warrant for law enforcement under Article III,
Section 2 of the 1987 Constitution

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. This 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(Secretary of National Defense vs. Manalo, 568 SCRA 1, G.R.
No. 180906 October 7, 2008)

Disqualifications of Witnesses

Absolute disqualification:

Page 6 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

(a) Those who cannot perceive (Sec. 20) ;

(b) Those who can perceive but cannot make their perception known (Sec. 20) ;
(c) Mentally incapacity – Those whose mental condition, at the time of their production for examination, is such that
they are incapable of intelligently making known their perception to others (Sec. 21) ;
(d) Mentally immaturity – Children whose mental maturity is such as to render them incapable of perceiving the
facts respecting which they are examined and of relating them truthfully (Sec. 21) ;
(e) Marital disqualification – During their marriage, neither the husband nor the wife may testify for or against the
other without the consent of the affected spouse, except in a civil case by one against the other, or in a criminal case
for a crime committed by one against the other or the latter's direct descendants or ascendants (Sec. 22) .
(f) Parental and filial privilege -- No person may be compelled to testify against his parents, other direct ascendants,
children or other direct descendants (Sec. 25).

Relative disqualification:

(a) Dead Man‘s Statute – Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted,
against an executor or administrator or other representative of a deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of such deceased person or against such person of unsound mind,
cannot testify as to any matter of fact occurring before the death of such deceased person or before such person
became of unsound mind (Sec. 23).
(b) Disqualification by reason of privileged communication (Sec. 24) :
 The husband or the wife, during or after the marriage, cannot be examined without the consent of the
other as to any communication received in confidence by one from the other during the marriage except in
a civil case by one against the other, or in a criminal case for a crime committed by one against the other
or the latter's direct descendants or ascendants;
 An attorney cannot, without the consent of his client, be examined as to any communication made by the
client to him, or his advice given thereon in the course of, or with a view to, professional employment, nor
can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his
employer, concerning any fact the knowledge of which has been acquired in such capacity;
 A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent
of the patient, be examined as to any advice or treatment given by him or any information which he may
have acquired in attending such patient in a professional capacity, which information was necessary to
enable him to act in that capacity, and which would blacken the reputation of the patient;
 A minister or priest cannot, without the consent of the person making the confession, be examined as to
any confession made to or any advice given by him in his professional character in the course of discipline
enjoined by the church to which the minister or priest belongs;
 A public officer cannot be examined during his term of office or afterwards, as to communications made to
him in official confidence, when the court finds that the public interest would suffer by the disclosure.
(c) Newsman‘s privilege -- Without prejudice to his liability under the civil and criminal laws, the publisher, editor,
columnist or duly accredited reporter of any newspaper, magazine or periodical of general circulation cannot be
compelled to reveal the source of any news-report or information appearing in said publication which was related
in confidence to such publisher, editor or reporter unless the court or a House or committee of Congress finds that
such revelation is demanded by the security of the State (RA 1477) ;
(d) Bank deposits -- All deposits of whatever nature with banks or banking institutions in the Philippines including
investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities,
are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by
any person, government official, bureau or office, except upon written permission of the depositor, or in cases of
impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in
cases where the money deposited or invested is the subject matter of the litigation (RA 1405) .
(e) Sanctity of the ballot – voters may not be compelled to disclose for whom they voted.

Page 7 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

(f) Trade secrets.

(g) Information contained in tax returns (RA 2070, as amended by RA 2212)

What are the rules as regards the discharge of an accused as a State Witness?

General Rule: The discharge of an accused to be state witness amounts to an acquittal and is bar to future
prosecution for the same offense. If the accuse was discharged to be a state witness, and he testifies, the court is
not precluded from re-including him in the information or for being charged again for the same offense or an attempt
or frustration thereof if the discharge is found to be erroneous due to non-compliance with the conditions of the
discharge.

Exceptions:
 If accused fails or refuses to testify against the co-accused;
 If he was granted immunity but fails to keep his part of the agreement, his confession of his participation in
the commission of the offense is admissible as evidence against him.

Can the discharge of an accused as State Witness be revoked when not all requisites were met?

No. As long as he testified according to what was expected of him (People vs. Aninon, GR No. L-39083, March 16,
1983)

General Rule: Party may not impeach his own witness.

Exception: with respect to witnesses referred to in paragraphs (d) and (e) of Section 10, the party producing a
witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so
declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having
misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness
who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by
the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the
adverse party, but such cross examination must only be on the subject matter of his examination-in-chief.

Can injunction be a main action?

Yes. Jurisdiction over an action for injunction is vested exclusively in the Regional Trial Court because the subject of
the litigation is incapable of pecuniary estimation. In the main action for injunction, the petitioner may apply for the
issuance of a writ of preliminary injunction (Garcia vs. Adeva, GR 161338, April 27, 2007).

Doctrine of Estoppel

Under the Doctrine of Estoppel, an admission or representation is rendered conclusive upon the person making it,
and cannot be denied or disproved as against the person relying thereon. A party may not go back to his own acts
and representations to the prejudice of the other party who relied upon them. In the law of evidence, whenever a
party has by his own declaration, act or omission, intentionally and deliberately led another to believe a particular
thing to be true, and to act upon such belief, he cannot, in any litigation arising out of such declaration, act, or
omission, be permitted to falsify it (Sps. Manzanilla v. Waterfields Industries Corporation [2014]).

Page 8 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

What are the effect of estoppel on objection to jurisdiction?

(1) The active participation of a party in a case is tantamount to the recognition of that court‘s jurisdiction and will
bar a party from impugning the court‘s jurisdiction. Jurisprudence however, did not intend this statement to lay
down the general rule. (Lapanday Agricultural & Development Corp. v. Estita, 449 SCRA 240; Mangaiag v. Catubig-
Pastoral, 474 SCRA 153). The Sibonghanoy applies only to exceptional circumstances. The general rule remains: a
court‘s lack of jurisdiction may be raised at any stage of the proceedings even on appeal (Francel Realty Corp. v.
Sycip, 469 SCRA 424; Concepcion v. Regalado, GR 167988, 02/06/2007).
(2) The doctrine of estoppel by laches in relation to objections to jurisdiction first appeared in the landmark case of
Tijam vs. Sibonghanoy, 23 SCRA 29, where the SC barred a belated objection to jurisdiction that was raised only after
an adverse decision was rendered by the court against the party raising the issue of jurisdiction and after seeking
affirmative relief from the court and after participating in all stages of the proceedings. This doctrine is based upon
grounds of public policy and is principally a question of the inequity or unfairness of permitting a right or claim to be
enforced or asserted.
(3) The SC frowns upon the undesirable practice of submitting one‘s case for decision, and then accepting the
judgment only if favorable, but attacking it for lack of jurisdiction if it is not (BPI v. ALS Mgt. & Devt. Corp., 427 SCRA
564).

Are hearsay evidence admissible?

Hearsay evidence is inadmissible according to the general rule. The real basis for the exclusion appears to lie in the
fact that hearsay testimony is not subject to the tests which can ordinarily be applied for the ascertainment of the
truth of testimony, since the declarant is not present and available for cross-examination. In criminal cases the
admission of hearsay evidence would be a violation of the constitutional provision that the accused shall enjoy the
right of being confronted with the witnesses testifying against him and to cross-examine them. Moreover, the court
is without the opportunity to test the credibility of hearsay statements by observing the demeanor of the person
who made them (20 Am. Jur. 400).

Exceptions to the hearsay rule:

1) Waiver
2) Independently relevant evidence
3) Dying declaration
4) Declaration against interest
5) Act or declaration about pedigree
6) Family reputation or tradition regarding pedigree
7) Common reputation 8) Part of the res gestae
9) Verbal acts
10) Entries in the course of business
11) Entries in official records
12) Commercial lists and the like
13) Learned treatises
14) Testimony or deposition at a former proceeding
Note: All such exceptions are NOT absolute; still subject to cross examination; only testimonies so they may NOT be
credible

Page 9 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Requisites for admissibility of hearsay evidence as to res gestae:

1) Statements made by a person either

a. While a startling occurrence is taking place or
b. Immediately prior or
c. Immediately subsequent thereto
2) With respect to the circumstances thereof

Requisites for admissibility of hearsay evidence as to verbal acts:

1) Statements accompanying an equivocal act

2) Material to the issue
3) Giving it a legal significance

Requirements of a corporation executing the verification/certification on non-forum shopping

A juridical entity, unlike a natural person, can only perform physical acts through properly delegated individuals. The
certification against forum shopping where the plaintiff or a principal party is a juridical entity like a corporation may
be executed by properly authorized persons. This person may be the lawyer of a corporation. As long as he is duly
authorized by the corporation and has personal knowledge of the facts required to be disclosed in the certification
against forum shopping, the certification may be signed by the authorized lawyer (National Steel Corp. vs. CA, 388
SCRA 85).

What are matters that an expert could testify on?

 Those that he will give an opinion on matters that he has personal knowledge of. Ex. medico legal officer
who conducted an autopsy. He can give an opinion on the fatality of the wound.
 Although he doesn’t have personal knowledge of the facts, the facts are hypothetically presented to me
but those facts have a relation on the facts in issue, meaning that the hypothetical facts are not foreign and
irrelevant. And based on the facts presented, the expert can give an opinion. Ex. there is a victim and the
person who conducted the autopsy is already dead. Could the autopsy report be examined by another
expert in order to give an opinion on whether the facts as presented to him can produce a reasonable
opinion based on the facts.

General Rule: Experts can give opinion (with knowledge, skill, experience, and training)
Exception: witnesses can testify on identity, handwriting, mental sanity and impressions:

 It is best to have bio-data marked.

 Qualification of an expert may be dispensed with through stipulation of the parties and then proceed with
questioning.

Experts testify in either of 2 ways:

a) Within his personal knowledge

 Identify his own report or findings
b) NOT within his personal knowledge
 Facts are presented to him and he is to make an opinion or assessment (hypothetically)

Page 10 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Does the Judicial Affidavit Rule apply in criminal actions?

Yes. But only in the following cases:

 Where the maximum of the imposable penalty does not exceed 6 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 are involved.

Until when can cases provisionally dismissed be revived?

The one or two-year period allowed for reviving a criminal case that has been provisionally dismissed shall be
reckoned from the issuance of the order of the dismissal. The dismissal shall become automatically permanent if the
case is not revived within the required period. Such permanent dismissal shall amount to an adjudication of the case
on the merits (Section 14, A.M. No. 12-11-2-SC)

Grounds for issuance of writ of attachment

At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper party may
have the property of the adverse party attached as security for the satisfaction of any judgment that may be
recovered in the following cases:
(a) In an action for the recovery of a specified amount of money or damages, other than moral and exemplary, on a
cause of action arising from law, contract, quasi-contract, delict or quasi-delict against a party who is about to depart
from the Philippines with intent to defraud his creditors;
(b) In an action for money or property embezzled or fraudulently misapplied or converted to his own use by a public
officer, or an officer of a corporation, or an attorney, factor, broker, agent or clerk, in the course of his employment
as such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or converted, when
the property, or any party thereof, has been concealed, removed, or disposed of to prevent its being found or taken
by the applicant or an authorized person;
(d) In an 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;
(e) In an action against a party who has removed or disposed of his property, or is about to do so, with intent to
defraud his creditors; or
(f) In an action against a party who does not reside and is not found in the Philippines, or on whom summons may
be served by publication.

An order of attachment shall be granted only when it appears by the affidavit of the applicant, or of some other
person who personally knows the facts:

(a) That a sufficient cause of action exists,

(b) That the case is one of those mentioned in Section1,
(c) That there is no other sufficient security for the claim sought to be enforced by the action, and
(d) That 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

Order of satisfaction of judgment of attached property:

(1) Perishable or other property sold in pursuance of the order of the court;
(2) Property, real or personal, as may be necessary to satisfy the balance;

Page 11 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

(3) Collecting from debtors of the judgment obligor;

(4) Ordinary execution

What is a Status Quo Order?

Status quo order is merely intended to maintain the last, actual, peaceable and uncontested state of things which
preceded the controversy, not to provide mandatory or injunctive relief. In this case, it cannot be applied when the
respondent was already removed prior to the filing of the case. The directive to reinstate respondent to her former
position as school director and curriculum administrator is a command directing the undoing of an act already
consummated which is the exclusive province of prohibitory or mandatory injunctive relief and not of a status quo
order. (Bro. Bernard Oca v. Custodio, GR No. 174996, 12/03/2014).

Permanent Environmental Protection Order (PEPO) in writ of continuing mandamus

1) In the judgment, the court may convert the TEPO to a permanent EPO or issue a writ of continuing mandamus
directing the performance of acts which shall be effective until the judgment is fully satisfied. The court may, by itself
or through the appropriate government agency, monitor the execution of the judgment and require the party
concerned to submit written reports on a quarterly basis or sooner as may be necessary, detailing the progress of
the execution and satisfaction of the judgment. The other party may, at its option, submit its comments or
observations on the execution of the judgment.
2) In this provision, continuing mandamus is made available as a final relief. As a remedy, continuing mandamus is
decidedly an attractive relief. Nevertheless, the monitoring function attached to the writ is decidedly taxing upon
the court. Thus, it is meant to be an exceptional remedy. Among others, the nature of the case in which the judgment
is issued will be a decisive factor in determining whether to issue a writ of continuing mandamus. A TEPO may be
converted into a writ of continuing mandamus should the circumstances warrant.

Difference between Preliminary Injunction and Temporary Restraining 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 refrain from a particular act or acts. It may also require the
performance of a particular act or acts, in which case it shall be known as a preliminary mandatory injunction. A TRO
is issued to preserve the status quo until the hearing of the application for preliminary injunction. The judge may
issue a TRO with a limited life of 20 days from date of issue. If before the expiration of the 20 day period, the
application for preliminary injunction is denied, the TRO would be deemed automatically vacated. If no action is
taken by the judge within the 20 day period, the TRO would automatically expire on the 20th day by the sheer force
of law, no judicial declaration to that effect being necessary (Bacolod City Water District vs. L abayen, 446 SCRA 110).

When is a matter collateral?

A matter is collateral when it is on a “parallel or diverging line, merely “additional” or “auxiliary.” This term connotes
an absence of a direct connection between the evidence and the matter in dispute. For instance, the motive of a
person and in some instances, his reputation are matters that may be considered collateral to the subject of a
controversy. A very strong motive to kill the victim does not ipso facto make motive relevant to the issue of guilt or
innocence because the person with absolutely no motive to kill could be the culprit.

Page 12 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Are collateral matters allowed? Is this rule absolute?

As a rule, evidence on a collateral matte is not allowed. It is not allowed because it does not have the direct relevance
to the issue of the case. No. A collateral matter may be admitted if it ends in any reasonable degree to establish the
probability or improbability of the fact in issue.

What is the function of judicial notice?

To abbreviate litigation by the admission of matters that need no evidence because judicial notice is a substitute for
formal proof of a matter by evidence. It takes the place of proof and is of equal force. Evidence shall be dispensed
with because the matter is so well known and is of common knowledge not to be disputable.

Note: Judicial notice cannot be used to fill in the gaps in the party’s evidence. It should not be used to deprive an
adverse party of the opportunity to prove a disputed fact.

When judicial notice is discretionary?

A court may take judicial notice of matters which are of public knowledge, or are capable of unquestionable
demonstration, or ought to be known to judges because of their judicial functions (Sec. 2, Rule 129).

Can a court take judicial notice of a factual matter in controversy?

No. Before taking such judicial notice, the court must “allow the parties to be heard thereon” (Herrera v. Bollos, 374
SCRA 107).

What do you mean by palpable mistake?

The mistake that would relieve the party from the effects of his admission is not any mistake. It must be one that is
palpable, a mistake that is clear to the mind or plain to see. It is a mistake that is readily perceived by the senses or
the mind.

When can a party use the admission that there is no such admission?

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. Here, what he denies is the meaning attached to his statement, a
meaning made to appear by the adverse party as an admission.

May the plea of guilty be withdrawn?

Yes, Sec. 2 of Rule 116 allows the accused, at arraignment, to plead guilty to a lesser offense with the consent of the
offended party and the prosecutor provided that the lessor offense is necessarily included in the offense charged.
He may also plead guilty to a lesser offense even after the arraignment after withdrawing his plea of not guilty.

Note: In case the accused withdraws his guilty plea, that plea of guilty later withdrawn, is not admissible in evidence
against the accused who made the plea.

Page 13 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

What if the plea of guilty to a lesser offense is not accepted?

The rule does not provide for an adverse consequence of the unaccepted plea. On the contrary, the rule provides
that an unaccepted plea of guilty to a lesser offense, is not admissible in evidence against the accused who made
the plea or offer.

What is the rule regarding questions concerning the credibility of witnesses?

They are best left to the sound discretion of the trial court as it is in the best position to observe his demeanor and
bodily movements.

General rule: The findings of the trial courts on the credibility of witnesses deserve a high degree of respect and will
not be disturbed

Exception: When the trial court had overlooked, misunderstood, or misapplied some facts or circumstances of
weight and substance which could reverse a judgment of conviction.

What is the reason for the general rule?

The trial courts had observed the witnesses’ deportment and manner of testifying, the furtive glance, blush of
conscious shame, hesitation, flippant or sneering tone, calmness, sigh, or the scant or full realization of an oath—all
of these are useful aids for an accurate determination of a witness’ honesty and sincerity.

What is the rule regarding the Examination of a Child Witness?

The examination of a child witness presented in a hearing or any proceeding shall be done in open court. The answer
of the witness shall be given orally, unless the witness is incapacitated to speak, or the question calls for a different
mode of answer. The court may exclude the public and persons who do not have a direct interest in the case,
including the members of the press.

What shall be the order?

It shall be determined by the court on the record to testify in open court would cause psychological harm to him,
hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear
or timidity.

When is a presumptive conclusive?

When the presumption becomes irrebuttable upon the presentation of the evidence and any evidence tending to
rebut the presumption is not admissible. This is a rule of substantive law. It is an inference which the law makes so
peremptory that it will not allow them to be overturned by any contrary proof however strong.

When is a presumption disputable or rebuttable?

It may be contradicted or overcome by other evidence. They are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence.

Note: A presumption is an inference which is mandatory unless rebutted

Page 14 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Where to file motion to quash a search warrant or to suppress evidence?

A motion to quash search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon
only by the court where it has been instituted. If no criminal action has been instituted, the motion may be filed in
and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a
criminal case is subsequently filed in another court, the motion shall be resolved by te latter court

When is counterclaim compulsory?

1.) A compulsory counterclaim is one which is cognizable by the court of justice.

2.) 2) A counterclaim should be connected with the transaction which constitutes the basis of the action of the
plaintiff against the defendant.
3.) This counterclaim does not require for its adjudication the presence of a third person over whom the court
does not require jurisdiction.
4) This counterclaim is within the jurisdiction of the court except that where the counterclaim is a money claim
and the action is filed in the RTC irrespective of the amount whether within or not within the jurisdiction of the
court, the counterclaim is compulsory.

Are text messages admissible as evidence?

As to the admissibility of the text messages, the RTC admitted them in conformity with the Court’s earlier Resolution
applying the Rules on Electronic Evidence to criminal actions. Text messages are to be proved by the testimony of a
person who was a party to the same or has personal knowledge of them. Here, PO3 Cambi, posing as the accused
Enojas, exchanged text messages with the other accused in order to identify and entrap them. As the recipient of
those messages sent from and to the mobile phone in his possession, PO3 Cambi had personal knowledge of such
messages and was competent to testify on them. (People vs. Enojas, 718 SCRA 313, G.R. No. 204894 March 10, 2014)

Does the CTA have jurisdiction over petitions for certiorari assailing interlocutory orders issued by the RTC?

While it is clearly stated that the CTA has exclusive appellate jurisdiction over 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,
there is no categorical statement under RA 1125 as well as the amendatory RA 9282, which provides that the CTA
has jurisdiction over petitions for certiorari assailing interlocutory orders issued by the RTC in local tax cases filed
before it. The prevailing doctrine is that the authority to issue writs of certiorari involves the exercise of original
jurisdiction which must be expressly conferred by the Constitution or by law and cannot be implied from the mere
existence of appellate jurisdiction. Thus, in the cases of Pimentel v. COMELEC, 101 SCRA 769 (1980), Garcia v. De
Jesus, 206 SCRA 779 (1992), Veloria v. COMELEC, 211 SCRA 907 (1992); Department of Agrarian Reform Adjudication
Board v. Lubrica, 457 SCRA 800 (2005), and Garcia v. Sandiganbayan, 237 SCRA 552185 (1994), this Court has ruled
against the jurisdiction of courts or tribunals over petitions for certiorari on the ground that there is no law which
expressly gives these tribunals such power. It must be observed, however, that with the exception of Garcia v.
Sandiganbayan, 237 SCRA 552 (1994), these rulings pertain not to regular courts but to tribunals exercising quasi-
judicial powers. With respect to the Sandiganbayan, Republic Act No. 8249 now provides that the special criminal
court has exclusive original jurisdiction over petitions for the issuance of the writs of mandamus, prohibition,
certiorari, habeas corpus, injunctions, and other ancillary writs and processes in aid of its appellate jurisdiction. (City
of Manila vs. Grecia-Cuerdo, 715 SCRA 182, G.R. No. 175723 February 4, 2014)

Page 15 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

As a general rule, the probate court cannot pass upon the issue of ownership arising during the probate
proceeding, except in the following cases:

(a) When the heirs agree to submit the question of determination of ownership of properties to the probate court
without prejudice to third persons (Trinidad vs. CA, 1987) ;
(b) For purposes of determining whether the property should be included in the inventory, the probate court may
decide prima facie the ownership of said property, but the determination is not final and without prejudice to the
right of interested parties to ventilate the question of ownership in a proper action (Paz vs. Madrigal [1956]; Pobre
vs. Gonong, 148 SCRA).

Extrajudicial partition of the estate shall be valid when the following conditions concur:

(a) The decedent left no will;

(b) The decedent left no debts, or if there were debts left, all had been paid;
(c) The heirs are all of age or if they are minors, the latter are represented by their judicial guardian or legal
representative;
(d) The partition was made by means of a public instrument or affidavit duly filed and/or registered with the Register
of Deeds; and
(e) The fact of the extrajudicial settlement or administration shall be published in a newspaper of general circulation
once a week for three consecutive weeks.

Except those enumerated as exceptions under Sec. 408, RA 7160, the following cases are cognizable with the
Katarungang Pambarangay:

(a) Disputes between persons actually residing in the same barangay;

(b) Those involving actual residents of different barangays within the same city or municipality;
(c) All disputes involving real property or any interest therein where the real property or the larger portion thereof
is situated;
(d) Those arising at the workplace where the contending parties are employed or at the institution where such
parties are enrolled for study, where such workplace or institution is located.

Difference between Writ of Continuing Mandamus (WCM) and Writ of Kalikasan (WOK)

Subject matter: WCM is directed against the unlawful neglect in the performance of an act which the law specifically
enjoins as a duty resulting from an office, trust or station in connection with the enforcement or violation of an
environmental law rule or regulation or a right therein; or (a) the unlawful exclusion of another from the use or
enjoyment of such right and in both instances, there is no other plain, speedy and adequate remedy in the ordinary
course of law. A writ of Kalikasan is available against unlawful act or omission of a public official or employee, or
private individual or entity, involving environmental damage of such magnitude as to prejudice the life, health or
property of inhabitants in two or more cities or provinces. In addition, magnitude of environmental damage is a
condition sine qua non in a petition for the issuance of a writ of Kalikasan and must be contained in the verified
petition.

Who may file: A writ of continuing mandamus is available to a broad range of persons such as natural or juridical
person, entity authorized by law, people‘s organization, NGO, or any public interest group accredited by or registered
with any government agency, on behalf of persons whose right to a balanced and healthful ecology is violated or
threatened to be violated.

Page 16 of 17
 LAST MINUTE LECTURE NOTES IN REMEDIAL LAW

Respondent: The respondent in a petition for continuing mandamus is only the government or its officers, unlike in
a petition for writ of Kalikasan, where the respondent may be a private individual or entity.

Exemption from docket fees: Both application is exempted from the payment of docket fees.

Venue: A petition for the issuance of a writ of continuing mandamus may be filed in the following: (a) the RTC
exercising jurisdiction over the territory where the actionable neglect or omission occurred; (b) the CA; or (c) the SC.
Given the magnitude of the damage, the application for the issuance of a writ of Kalikasan can only be filed with the
SC or any station of the CA.

Discovery measures: The Rule on the WCM does not contain any provision for discovery measures, unlike the Rule
on WOK which incorporates the procedural environmental right of access to information through the use of
discovery measures such as ocular inspection order and production order.

Damages for personal injury: The WCM allows damages for the malicious neglect of the performance of the legal
duty of the respondent, identical Rule 65. In contrast, no damages may be awarded in a petition for the issuance of
a WOK consistent with the public interest character of the petition. A party who avails of this petition but who also
wishes to be indemnified for injuries suffered may file another suit for the recovery of damages since the Rule on
WOK allows for the institution of separate actions.

Page 17 of 17