2019 LAST MINUTE POINTERS

IN REMEDIAL LAW
Associate Dean Christian G. Villasis

CIVIL PROCEDURE
JURISDICTION VS. VENUE: (a) Jurisdiction is the authority to hear and determine a case; venue is the place
where the case is to be heard or tried; (b) Jurisdiction is a matter of substantive law; venue, of procedural law; (c)
Jurisdiction establishes a relation between the court and the subject matter; venue, a relation between plaintiff and
defendant, or petitioner and respondent; and (d) Jurisdiction is fixed by law and cannot be conferred by the parties; venue
may be conferred by the act or agreement of the parties. (Nocum, et al. vs. Tan).

THE METC CAN NOW ASSUME JURISDICTION OVER ACCION PUBLICIANA CASES. (BF CITILAND CORPORATION
vs. MARILYN B. OTAKE, G.R. No. 173351, July 29, 2010, CARPIO)

AN ACTION FOR DECLARATION OF THE VALIDITY OF DEED OF SALE AND FOR SPECIFIC PERFORMANCE IS
A REAL ACTION. The averments in petitioners' Complaint and the characters of the relief prayed therein reveals that the
action primarily involves title or possession of real property. The court which has jurisdiction over the subject matter of the
case is determined by the assessed value of the subject property. (HEIRS OF SPS. ALEJANDRO RAMIRO AND FELICISIMA
LLAMADA v. SPS. ELEODORO AND VERNA BACARON, G.R. NO. 196874, FEBRUARY 6, 2019, JARDELIZA)

(2017 BAR) PRINCIPLE OF JUDICIAL HIERARCHY OF COURTS: Although this Court, the Court of Appeals and the
Regional Trial Courts have concurrent jurisdiction to issue writs of certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction, such concurrence does not give the petitioner unrestricted freedom of choice of court forum.
(UNITED CLAIMANTS ASSOCIATION OF NEA (UNICAN), ET.AL., VS. NATIONAL ELECTRIFICATION ADMINISTRATION (NEA),
NEA BOARD, ET. AL., [2012]).

EXCEPTIONS:
1. 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, (i) when dictated by the
public welfare and the advancement of public policy; (ii) when demanded by the broader interest of justice; (iii) when the
challenged orders were patent nullities; or(iv) when analogous exceptional and compelling circumstances called for and
justified the immediate and direct handling of the case. (DY vs. HON. BIBAT- PALAMOS, [2013]).
2. PURE QUESTIONS OF LAW: A regard for judicial hierarchy most certainly indicates that petitions for the
issuance of extraordinary writs against first level courts should be filed in the RTC and those against the latter should be filed
in the Court of Appeals (Chavez v. National Housing Authority, G.R. No. 164527, 15 August 2007, 530 SCRA 235, 285 citing
People v. Cuaresma, G.R. No. 133250, 9 July 2002, 384 SCRA 152). This rule, however, may be relaxed when pure questions
of law are raised. A question of law exists when the doubt or difference centers on what the law is on a certain state of facts.
(MIAQUE vs. PATAG, [2009]).
3. TRANSCENDENTAL INTEREST OR IMPORTANCE TO THE PUBLIC (NATIONAL INTEREST OR MATTERS
OF SERIOUS IMPLICATIONS) (CHAMBER OF REAL ESTATE AND BUILDERS' ASSOCIATIONS, INC. (CREBA) vs. ERC and
MERALCO, [2010]). (ALLIANCE OF QUEZON CITY HOMEOWNER’S ASSOCIATION, INC. vs. THE QUEZON CITY GOVERNMENT,
G.R. No. 230651, September 18, 2018, PERLAS-BERNABE).

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF JUDICIAL STABILITY: No court can interfere by

injunction with the judgments or orders of another court of concurrent jurisdiction having the power to grant the relief
sought by the injunction. (ELDEFONSO G. DEL ROSARIO & JOSEFINO R. ORTIZ vs. CRISTINA OCAMPO-FERRER, G.R. No.
215348, June 20, 2016 PERLAS-BERNABE)

EXCEPTION: A writ of preliminary injunction secured by a third-party claimant from a court of equal grade
may not be considered as interference or violates the jurisdiction of another court of equal grade since the third party
complainant has the right to vindicate his claim by any third party action. (Abiera vs. CA 45 SCRA 314)

KATARUNGAN PAMBARANGAY LAW:

SEC. 408. SUBJECT MATTER FOR AMICABLE SETTLEMENT; EXCEPTION THERETO. The lupon of each
barangay shall have authority to bring together the parties actually residing in the same city or municipality for amicable
settlement of all disputes except: (a) Where one party is the government, or any subdivision or instrumentally thereof; (b)
Where one party is a public officer or employee, and the dispute relates to the performance of his official functions; (c)
Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding Five thousand pesos (P5,000.00); (d)
Offenses where there is no private offended party; (e) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to amicable settlement by an appropriate lupon; (f)
Disputes involving parties who actually reside in barangays of different cities or municipalities, except where such barangay
units adjoin each other and the parties thereto agree to submit their differences to amicable settlement by an appropriate
lupon; (g) Such other classes of disputes which the President may determine in the interest of justice or upon the
recommendation of the Secretary of Justice. The court in which non-criminal cases not falling within the authority of the
lupon under this code are filed may, at any time before trial, motu proprio refer the case to the lupon concerned for amicable
settlement.

The parties may go directly to court in the following instances: (1) Where the accused is under detention; (2) Where a
person has otherwise been deprived of personal liberty calling for habeas corpus proceedings; (3) Where actions are coupled
with provisional remedies such as preliminary injunction, attachment, delivery of personal property, and support pendente
lite; and (4) Where the action may otherwise be barred by the statute of limitations.

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 RULES ON SUMMARY PROCEDURE:
PLEADINGS ALLOWED: The only pleadings allowed to be filed are the complaints, compulsory counterclaims and
cross-claims pleaded in the answer and the answers thereto. All of the pleadings must be verified (Sec 3 Rule on Summary
Procedure)

SEC. 19. PROHIBITED PLEADINGS AND MOTIONS. The following pleadings, motions or petitions shall not be
allowed in the cases covered by this rule: (a) 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 the preceding section; (b) Motion for a
bill of particulars; (c) Motion for new trial, or for reconsideration of a judgment, or for opening of trial; (d) Petition for relief
from judgment; (e) Motion for extension of time to file pleadings, affidavits or any other paper; (f) memoranda; (g) Petition for
certiorari, mandamus or prohibition against any interlocutory order issued by the court; (h) Motion to declare the defendant
in default; (i) Dilatory motions for postponement; (j) Reply; (k) Third party complaints; (l) Interventions.

RULES OF PROCEDURE ON SMALL CLAIMS A.M. No. 08-8-7-SC

(As amended on April 1, 2019)

SEC. 2.Scope.- These Rules shall govern the procedure in actions before the Metropolitan Trial Courts (MeTCs),
Municipal Trial Courts in Cities (MTCCs), Municipal Trial Courts (MTCs) and Municipal Circuit Trial Courts (MCTCs) for
payment of money where the value of the claim does not exceed Four Hundred Thousand Pesos (P400,000.00)exclusive of
interest and costs.

SEC. 5. 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 that are purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or reimbursement of sum of money. The claim or demand may be: (a)
For money owed under any of the following: 1. Contract of Lease; 2. Contract of Loan; 3. Contract of Services; 4. Contract
of Sale; or 5. Contract of Mortgage; (b) For liquidated damages arising from contracts; (c) The enforcement of a
barangay amicable settlement or an arbitration award involving a money claim covered by this Rule pursuant to Sec.
417 of Republic Act 7160, otherwise known as The Local Government Code of 1991.

SEC. 7. Venue: The regular rules on venue shall apply. However, if the plaintiff is engaged in the business of
lending, banking and similar activities, and has a branch within the municipality or city where the defendant resides,
the Statement of Claim/s shall be filed where that branch is located.

APPEARANCE: The parties shall personally appear on the designated date of hearing. Appearance through a
representative must be for a valid cause. The representative of an individual-party must not be a lawyer, and must be related
to or next-of-kin of the individual-party. Juridical entities shall not be represented by a lawyer in any capacity. The
representative must be authorized under a Special Power of Attorney (Form 7-SCC) to enter into an amicable settlement of the
dispute and to enter into stipulations or admissions of facts and of documentary exhibits.

SEC. 24. Decision.- After the hearing, the court shall render its decision based on the facts established by the
evidence (Form 11-SCC), within twenty-four (24) hours from termination of the hearing. The decision shall immediately be
entered by the Clerk of Court in the court docket for civil cases and a copy thereof forthwith served on the parties. The
decision shall be final, executory and unappealable.

REMEDY: THE PROSCRIPTION ON APPEALS IN SMALL CLAIMS CASES, SIMILAR TO OTHER PROCEEDINGS
WHERE APPEAL IS NOT AN AVAILABLE REMEDY, DOES NOT PRECLUDE THE AGGRIEVED PARTY FROM FILING A
PETITION FOR CERTIORARI UNDER RULE 65 OF THE RULES OF COURT. The petitioner correctly availed of the remedy
of certiorari to assail the propriety of the MTCC Decision in the subject small claims case. (A.L. ANG NETWORK, INC. vs.
MONDEJAR, G.R. No. 200804, January 22, 2014, PERLAS-BERNABE)

FAILURE TO STATE A CAUSE OF ACTION VS. LACK OF CAUSE OF ACTION The former refers to the insufficiency
of the allegations in the pleading, while the latter to the insufficiency of the factual basis for the action. Dismissal for failure
to state a cause of action may be raised at the earliest stages of the proceedings through a motion to dismiss under Rule 16
of the Rules of Court, while dismissal for lack of cause of action may be raised any time after the questions of fact have been
resolved on the basis of stipulations, admissions or evidence presented by the plaintiff under Rule 33 of the Rules of Court.
(ZUÑIGA-SANTOS vs. SANTOS-GRAN, G.R. No. 197380, October 08, 2014, PERLAS-BERNABE)

JOINDER OF CAUSES OF ACTION (1999 BAR): Joinder of causes of action is the assertion of as many causes of
action as a party may have as against another in one pleading alone. It is the process of uniting two or more demands or
rights of action in one action. The rule on joiner of causes of action is that a party may in one pleading assert, in
alternative or otherwise, as many action as he may have against an opposing party, provided that the (i) rule on joinder
of parties is complied with (Section 3, Rule 3); (ii) that the joinder shall not include special civil actions governed by special
rules, (iii) but may include causes of action pertaining to different venues or jurisdiction provided that one cause of action
falls within the jurisdiction of the RTC and venue lies therein; and (iv) that the aggregate amount claimed shall be the test of
jurisdiction where the claims in all the causes of action are principally for recovery of money. (Sec. 5 Rule 2)

Section 6, Rule 3: Permissive joinder of parties. — All persons in whom or against whom any right to relief in
respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally, or in
the alternative, may, except as otherwise provided in these Rules, join as plaintiffs or be joined as defendants in one
complaint, where any question of law or fact common to all such plaintiffs or to all such defendants may arise in the action;
but the court may make such orders as may be just to prevent any plaintiff or defendant from being embarrassed or put to
expense in connection with any proceedings in which he may have no interest. (6n)

TOTALITY RULE: In cases of joinder of causes of action, where the claim in all the causes of action involves
recovery of money, the test of jurisdiction shall be the aggregate sum of all the claims.

CLASS SUIT: When the subject matter of the controversy is one of common or general interest to many persons so
numerous that it is impracticable to join all as parties, a number of them which the court finds to be sufficiently numerous
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and representative as to fully protect the interests of all concerned may sue or defend for the benefit of all. Any party in
interest shall have the right to intervene to protect his individual interest. (Rule 3, Section 12)

NON-JOINDER OF INDISPENSABLE PARTIES: FAILURE TO IMPLEAD AN INDISPENSABLE

PARTY IS NOT A GROUND FOR THE DISMISSAL OF AN ACTION, AS THE REMEDY IN SUCH
CASE IS TO IMPLEAD THE PARTY CLAIMED TO BE INDISPENSABLE, CONSIDERING THAT
PARTIES MAY BE ADDED BY ORDER OF THE COURT, ON MOTION OF THE PARTY OR ON ITS
OWN INITIATIVE AT ANY STAGE OF THE ACTION. (Living @ Sense, Inc. vs. Malayan Insurance
Company, Inc., 682 SCRA 59, G.R. No. 193753, 26 September 2012, PERLAS-BERNABE)
VENUE OF PERSONAL ACTIONS: AN ACTION TO RECOVER THE DEFICIENCY AFTER AN EXTRAJUDICIAL
FORECLOSURE OF A REAL PROPERTY MORTGAGE IS A PERSONAL ACTION BECAUSE IT DOES NOT AFFECT TITLE
TO OR POSSESSION OF REAL PROPERTY, OR ANY INTEREST THEREIN.. (BPI FAMILY SAVINGS BANK INC., vs. SPS.
BENEDICTO & TERESITA YUJUICO [2015]).

CERTIFICATION AGAINST FORUM SHOPPING. — The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action or claim is
pending therein; (b) if there is such other pending action or claim, a complete statement of the present status thereof; and (c)
if he should thereafter learn that the same or similar action or claim has been filed or is pending, he shall report that fact
within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed. Failure to
comply with the foregoing requirements shall not be curable by mere amendment of the complaint or other initiatory pleading
but shall be cause for the dismissal of the case without prejudice, unless otherwise provided, upon motion and after
hearing. The submission of a false certification or non-compliance with any of the undertakings therein shall constitute
indirect contempt of court, without prejudice to the corresponding administrative and criminal actions. If the acts of the
party or his counsel clearly constitute willful and deliberate forum shopping, the same shall be ground for summary
dismissal with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions. (Section 5,
Rule 7, ROC)

GUIDELINES WITH RESPECT TO NON-COMPLIANCE WITH THE REQUIREMENTS ON OR SUBMISSION OF A

DEFECTIVE VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING: 1) 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; 2) 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; 3) 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; 4) 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; 5) 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.

EXCEPTION: Where the plaintiffs or petitioners share a common interest and invoke a common cause of action or
defense the rule requiring all such plaintiffs or petitioners to sign the certification against forum shopping may be relaxed.
(Fernandez vs. Norma Villegas G.R. NO. 200191, August 20, 2014, PERLAS-BERNABE)

CORPORATIONS: The following officials or employees of the company can sign the verification and certification
without need of a board resolution: (1) the Chairperson of the Board of Directors, (2) the President of a corporation, (3)
the General Manager or Acting General Manager, (4) Personnel Officer, and (5) an Employment Specialist in a labor
case. (COLEGIO MEDICO-FARMACEUTICO DE FILIPINAS, INC. v. LIM, G.R. NO. 212034, JULY 2, 2018). 6. Vice-President; 7.
Assistant Vice President; 8. Officer-in-Charge of the Corporation (BOARD OF INVESTMENTS v. SR METALS, INC., G.R. NO.
219927, OCTOBER 3, 2018)

COMPULSORY VS. PERMISSIVE COUNTERCLAIM

(i) DOCKET FEES. No docket fees are required to be paid on a compulsory counterclaim, while docket fees need to be
paid on a permissive counterclaim filed with the RTC. (BAR)
(ii) FILING OF AN ANSWER. A compulsory counterclaim as a rule need not be answered while a permissive
counterclaim should be answered otherwise the plaintiff could be declared in default in respect thereof. (BAR)
(iii) REQUIREMENT OF CERTIFICATION AGAINST FORUM SHOPPING. A compulsory counterclaim need not be
accompanied by a certification against forum shopping while a permissive counterclaim must be so accompanied. (BAR)
(iv) RULES ON SUMMARY PROCEDURE: A compulsory counterclaim is allowed while a permissive counterclaim is
not allowed.
(V) NOT SET UP IN THE ANSWER: Compulsory – barred except Rule 11, Section 10; Permissive – not barred
GENERAL RULE: A MOTION TO INTERVENE MAY BE FILED AT ANY TIME BEFORE RENDITION OF
JUDGMENT BY THE TRIAL COURT. (OMBUDSMAN VS. SISON [2010]).

EXCEPTIONS: Although Rule 19 is explicit on the period when a motion to intervene may be filed, the Court allowed
exceptions in several cases, viz: This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also been granted to afford
indispensable parties, who have not been impleaded, the right to be heard even after a decision has been rendered by the
trial court, when the petition for review of the judgment has already been submitted for decision before the Supreme Court,

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and even where the assailed order has already become final and executory. In Lim v. Pacquing, the motion for intervention
filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice and injury and to settle once
and for all the substantive issues raised by the parties. In fine, the allowance or disallowance of a motion for
intervention rests on the sound discretion of the court after consideration of the appropriate circumstances. We stress again
that Rule 19 of the Rules of Court is a rule of procedure whose object is to make the powers of the court fully and completely
available for justice. Its purpose is not to hinder or delay, but to facilitate and promote the administration of justice.
(RODRIGUEZ vs. CA [2013]).

REMEDIES WHEN A PARTY IS DECLARED IN DEFAULT (BAR): The following are the remedies available: a. Motion
for reconsideration; b. Motion for new trial; c. Appeal; d. Petition for relief from a judgment of default; e. Annulment of
judgment under Rule 47; and f. Certiorari under Rule 65.

SUMMONS: In Manotoc v. Court of Appeals, the Court detailed the requisites for a valid substituted service of
summons, summed up as follows: (1) impossibility of prompt personal service – the party relying on substituted service or
the sheriff must show that the defendant cannot be served promptly or there is impossibility of prompt service; (2) specific
details in the return – the sheriff must describe in the Return of Summons the facts and circumstances surrounding the
attempted personal service; (3) a person of suitable age and discretion – the sheriff must determine if the person found in
the alleged dwelling or residence of defendant is of legal age, what the recipient’s relationship with the defendant is, and
whether said person comprehends the significance of the receipt of the summons and his duty to immediately deliver it to the
defendant or at least notify the defendant of said receipt of summons, which matters must be clearly and specifically
described in the Return of Summons; and (4) a competent person in charge, who must have sufficient knowledge to
understand the obligation of the defendant in the summons, its importance, and the prejudicial effects arising from inaction
on the summons. (Planters Development Bank, vs. Chandumal [2012]). Non-compliance with the prerequisites for valid
substituted service, the trial court does not acquire jurisdiction over the persons of the defendant and any proceedings held
and judgment therefrom must be annulled. (GO V. SPS. RICHARD AND POLLY CHUA, G.R. NO. 236075, NOVEMBER 5, 2018)

Partition of estate is an action quasi in rem. Jurisprudence is replete with pronouncements that for the court to
acquire jurisdiction in actions quasi in rem, it is necessary only that it has jurisdiction over the res. However, in the cas e of
De Pedro v. Romansan Development Corporation, the High Court Clarified that while this is so, “to satisfy the requirements of
due process, jurisdiction over the parties in in rem or quasi in rem action is required.” Thus, regardless of the nature of the
action, proper service of summons is imperative and that a decision rendered without proper service of summons
suffers a defect in jurisdiction. (HEIRS OF ERNESTO MORALES VS. ASTRID MORALES AGUSTIN, June 6, 2018, Reyes)

RULES ON SERVICE OF SUMMONS IN RELATION TO THE NATURE OF AN ACTION IN PERSONAM, IN REM OR

QUASI IN REM: In an action in personam, jurisdiction over the person of the defendant is necessary for the court to validly
try and decide the case. Jurisdiction over the person of a resident defendant who does not voluntarily appear in court can be
acquired by personal service of summons as provided under Section 7, Rule 14 of the Rules of Court. If he cannot be
personally served with summons within a reasonable time, substituted service may be made in accordance with Section 8 of
said Rule. If he is temporarily out of the country, any of the following modes of service may be resorted to: 1.
substituted service set forth in Section 8; 2. personal service outside the country, with leave of court; 3. service by
publication, also with leave of court; or 4. any other manner the court may deem sufficient. However, in an action in
personam wherein the defendant is a non-resident who does not voluntarily submit himself to the authority of the
court, personal service of summons within the state is essential to the acquisition of jurisdiction over her person. This
method of service is possible if such defendant is physically present in the country. If he is not found therein, the court
cannot acquire jurisdiction over his person and therefore cannot validly try and decide the case against him. An exception
was laid down in Gemperle vs. Schenker wherein a non-resident was served with summons through his wife, who was a
resident of the Philippines and who was his representative and attorney-in-fact in a prior civil case filed by him; moreover,
the second case was a mere offshoot of the first case. On the other hand, 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 that the court
acquires jurisdiction over the res. Nonetheless, summons must be served upon the defendant not for the purpose of
vesting the court with jurisdiction but merely for satisfying the due process requirements. Thus, where the defendant is a
non-resident who is not found in the Philippines and (1) the action affects the personal status of the plaintiff; (2) the
action relates to, or the subject matter of which is property in the Philippines in which the defendant has or claims a lien or
interest; (3) the action seeks the exclusion of the defendant from any interest in the property located in the Philippines; or (4)
the property of the defendant has been attached in the Philippines, 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 (SPS. BELEN, ET. AL., vs. HON. CHAVEZ, ET AL. [2008]).

SECTION 12, RULE 14 OF THE RULES OF COURT ON SERVICE OF SUMMONS UPON FOREIGN PRIVATE
JURIDICAL ENTITY (2015 BAR) “When the defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose,
or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents
within the Philippines. x x x If the foreign private juridical entity is not registered in the Philippines or has no
resident agent, service may, with leave of court, be effected out of the Philippines through any of the following means: (a)
By personal service coursed through the appropriate court in the foreign country with the assistance of the Department of
Foreign Affairs; (b) by publication once in a newspaper of general circulation in the country where the defendant may be found
and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; (c) by
facsimile or any recognized electronic means that could generate proof of service; or (d) by such other means as may be
warranted in the discretion of the court” (AM. NO. 11-3-6-SC OR NEW RULE ON SERVICE OF SUMMONS ON FOREIGN
JURIDICAL ENTITIES: MARCH 15, 2011).

GROUNDS IN FILING A MOTION TO DISMISS: "Within the time for but before filing the answer to the complaint or
pleading asserting a claim, a motion to dismiss may be made on any of the following grounds: (a) That the court has no
jurisdiction over the person of the defending party; (b) That the court has no jurisdiction over the subject matter of the claim;
(c) That venue is improperly laid; (d) That the plaintiff has no legal capacity to sue; (e) That there is another action pending
between the same parties for the same cause; (f) That the cause of action is barred by a prior judgment or by the statute of
limitations; (g) That the pleading asserting the claim states no cause of action; (h) That the claim or demand set forth in the
plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; (i) That the claim on which the action is
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founded is unenforceable under the provisions of the statute of frauds; (j) That a condition precedent for filing the claim has
not been complied with. (Section 1, Rule 16)

IF THE REASON FOR THE DISMISSAL IS BASED ON PARAGRAPHS (F), (H), OR (I) (I.E., RES
JUDICATA, PRESCRIPTION, EXTINGUISHMENT OF THE CLAIM OR DEMAND, AND UNENFORCEABILITY UNDER THE
STATUTE OF FRAUDS) THE DISMISSAL, UNDER SECTION 5, OF RULE 16, IS WITH PREJUDICE AND THE REMEDY OF
THE AGGRIEVED PARTY IS TO APPEAL THE ORDER GRANTING THE MOTION TO DISMISS. (UNITED ALLOY
PHILIPPINES CORP., v. UCPB AND/OR PDIC [2015].

PRE-TRIAL
Pre-trial in Criminal cases Pre-trial in Civil cases
(Rule 118) (Rule 18)

Mandatory (Sec. 1) Mandatory (Sec. 2)

No compromise allowed. However, Plea bargaining is
allowed. (Sec. 2)
All Agreements or admissions made during the pre-
trial conference should be reduced into writing and
signed by the accused and his counsel, otherwise it
cannot be used against the accused. (Sec. 2)
The presence of the accused is not indispensable unless
required by the court, he is just required to sign the written
agreement arrived at the pre-trial if he is in conformity
therewith.
Possibility of compromise is discussed and encouraged. (Sec.
2)
Agreements or admissions by the parties are included in the
pre-trial order. (Sec. 7)
The presence of the defendant is required unless he is duly
represented by his counsel with authority to enter into a
compromise agreement, failure of which the case would
proceed as if the defendant has been declared in default.

The offended party is not required to be present at the pre-
trial but must appear at the arraignment for the purpose of
plea bargaining, determination of civil liability and other
matters requiring his presence. (If the offended party fails
to appear, and the accused offer to plea to a lesser offense,
the same may be allowed with the conformity of the
prosecutor alone.
Does not require filing of pre-trial brief but attendance only
in a pre-trial conference to consider the matters stated in
Sec 2, Rule118
The presence of the plaintiff is required at the pre-trial
unless excused or represented by person fully authorized in
writing to perform the acts specified in Sec.4, Rule 18.
Failure of which the case may be dismissed with or without
prejudice.
A pre-trial brief is required

EFFECT OF FAILURE TO APPEAR (BAR): The failure of the plaintiff to appear when so required pursuant to the
next preceding section shall be cause for dismissal of the action. The dismissal shall be with prejudice, unless otherwise
ordered by the court. A similar failure on the part of the defendant shall be cause to allow the plaintiff to present, his
evidence ex parte and the court to render judgment on the basis thereof.” It shall be the duty of the parties and their
counsel to appear at the pre-trial. The non-appearance of a party may be excused only if a valid cause is shown therefor or if
a representative shall appear in his behalf fully authorized in writing to enter into an amicable settlement, to submit to
alternative modes of dispute resolution, and to enter into stipulations or admissions of facts and of documents. (Rule 18, Sec.
4)

Describe briefly at least five (5) modes of discovery under the Rules of Court. (2000 BAR)
A: Five modes of discovery under the Rules of Court are:
(1) DEPOSITION. By leave of court after jurisdiction has been obtained over any defendant or over property which is
the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a
party or not, may be taken, at the instance of any party, by the deposition upon oral examination or written interrogatories.
(Sec. 1, Rule 23, 1997 Rules of Civil Procedure.)
(2) INTERROGATORIES TO PARTIES. Under the same conditions specified in section 1 of Rule 23, any party shall
file and serve upon any adverse party written interrogatories regarding material and relevant facts to be answered by the
party served. (Sec. 1, Rule 25, 1997 Rules of Civil Procedure.)
(3) ADMISSION BY ADVERSE PARTY. At any time after issues have been joined, a party may file and serve upon
any other party a written request for the admission by the latter of the genuineness of any material and relevant document or
of the truth of any material and relevant matter of fact. (Sec.1, Rule 26, 1997 Rules of Civil Procedure.)
(4) PRODUCTION OR INSPECTION OF DOCUMENTS OR THINGS. Upon motion of any part showing good cause
therefor, a court may order any party to produce and permit the inspection and copying or photographing of any designated
documents, etc. or order any party to permit entry upon surveying, or photographing the property or any designated relevant
object or operation thereon. (Sec. 1, Rule 27, 1997 Rules of Civil Procedure.)
(5) PHYSICAL AND MENTAL EXAMINATION OF A PERSONS. In an action in which the mental or physical
condition of a party is in controversy, the court in which the action is pending may in its discretion order him to submit to a
physical or mental examination by a physician. (Sec. 1, Rule 28, 1997 Rules of Civil Procedure.)

USES OF DEPOSITIONS PENDING ACTION: At trial or during the hearing of a motion or an interlocutory
proceeding, any part or all of the deposition, as may be allowed by the rules on evidence, may be used against any party who
was present or represented at the taking of the deposition or who had due notice thereof. Under Section 4(a) Rule 23, any
deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a
witness. The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds:
(1) that the witness is dead; (2) 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; (3) that the witness is unable to attend or testify because of age, sickness, infirmity, or
imprisonment; (4) that the party offering the deposition has been unable to procure the attendance of the witness by
subpoena; or (5) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the

5
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. (Rule 23, Sec. 4 (c), Rules of Court).

Failure of party to attend or serve answers. — If a party or an officer or managing agent of a party wilfully fails to
appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers
to interrogatories submitted under Rule 25 after proper service of such interrogatories, 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 5, Rule 29)

REVERSE TRIAL (BAR): A reverse trial is one where the defendant or the accused present evidence ahead of the
plaintiff or prosecution and the latter is to present evidence by way of rebuttal to the former’s evidence. This kind of trial may
take place in civil case when the defendant’s Answer pleads new matters by way of affirmative defense, to defeat or evade
liability for plaintiff’s claim which is not denied but controverted. In a criminal case, a reverse trial may take place when the
accused made known to the trial court, on arraignment, that he is to adduce affirmative defense of a justifying or exempting
circumstance and thus impliedly admitting the act imputed to him. The trial court may then require the accused to present
evidence first, proving the requisites of the justifying or exempting circumstance he is invoking, and the prosecution to
present rebuttal evidence controverting the same.

ONE-DAY EXAMINATION OF WITNESS RULE (BAR): Par. 5(i) of Supreme Court A.M. No. 03-1-09-SC requires that
a witness has to be fully examined in one (1) day only. This rule shall be strictly adhered to subject to the courts’
discretion during trial on whether or not to extend the direct and/or cross-examination for justifiable reasons. On the last
hearing day allotted for each party, he is required to make his formal offer of evidence after the presentation of his last
witness and the opposing party is required to immediately interpose his objection thereto. Thereafter, the judge shall make
the ruling on the offer of evidence in open court. However, the judge has the discretion to allow the offer of evidence in writing
in conformity with Section 35, Rule 132.

DIFFERENCE BETWEEN EFFECTS OF DENIAL OF DEMURRER OF EVIDENCE IN CIVIL AND CRIMINAL CASE.
The following are the distinctions in effects of demurrer to the evidence in criminal cases from that in civil cases: In criminal
cases, demurrer to the evidence requires prior leave of court, otherwise the accused would lose his right to present defense
evidence if filed and denied; in civil cases, no leave of court is required for filing such demurrer. In criminal cases, when
such demurrer is granted, the dismissal of the case is not appealable inasmuch as the dismissal would amount to an
acquittal, unless made by a court acting without or in excess of jurisdiction; in civil cases, when such demurrer is granted,
the dismissal of the case can be appealed by the plaintiff. In criminal cases, the accused loses his right to present his
defense-evidence in the trial court when he filed the demurrer without leave of court; while in civil cases, the defendant
loses his right to present his defense-evidence only if the plaintiff appealed such dismissal and the case is before the
appellate court already since the case would be decided only on the basis of plaintiff’s evidence on record.

DISTINCTION BETWEEN JUDGMENT ON THE PLEADINGS AND SUMMARY JUDGMENT: Judgment on the
pleadings is proper where an answer fails to tender an issue, or otherwise admits the material allegations of the adverse
partys pleading. Summary judgment, on the other hand, will be granted if the pleadings, supporting affidavits, depositions,
and admissions on file, show that, except as to the amount of damages, there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law. We have elaborated on the basic distinction between
summary judgment and judgment on the pleadings, thus: The existence or appearance of ostensible issues in the
pleadings, on the one hand, and their sham or fictitious character, on the other, are what distinguish a proper case for
summary judgment from one for a judgment on the pleadings. In a proper case for judgment on the pleadings, there is no
ostensible issue at all because of the failure of the defending party’s answer to raise an issue. On the other hand, in the case
of a summary judgment, issues apparently exist i.e. facts are asserted in the complaint regarding which there is as yet no
admission, disavowal or qualification; or specific denials or affirmative defenses are in truth set out in the answer but the
issues thus arising from the pleadings are sham, fictitious or not genuine, as shown by affidavits, depositions, or admissions.
An answer would fail to tender an issue if it does not deny the material allegations in the complaint or admits said material
allegations of the adverse party’s pleadings by confessing the truthfulness thereof and/or omitting to deal with them at all.
Now, if an answer does in fact specifically deny the material averments of the complaint and/or asserts affirmative defenses
(allegations of new matter which, while admitting the material allegations of the complaint expressly or impliedly, would
nevertheless prevent or bar recovery by the plaintiff), a judgment on the pleadings would naturally be improper. On the other
hand, whether x x x the issues raised by the Answer are genuine is not the crux of inquiry in a motion for judgment on the
pleadings. It is so only in a motion for summary judgment. In a case for judgment on the pleadings, the Answer is such
that no issue is raised at all. The essential question in such a case is whether there are issues generated by the pleadings. A
genuine issue is an issue of fact which requires the presentation of evidence as distinguished from a sham, fictitious,
contrived or false claim. When the facts as pleaded appear uncontested or undisputed, then there is no real or genuine issue
or question as to the facts, and summary judgment is called for. (Teofilo B. Adolfo vs. Fe T. Adolfo, G.R. No. 201427, March 18,
2015, DEL CASTILLO)

APPEALS:
GENERAL RULE: 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. (MARMO VS. ANACAY [2009]).
EXCEPTIONS: (a) An order denying a petition for relief or any similar motion seeking relief from judgment; (b) An
interlocutory order; (c) An order disallowing or dismissing an appeal; (d) 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;(e)
An order of execution; (f) 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 (g) An order dismissing an action without prejudice. Remedy: File the appropriate special civil action under
Rule 65. (Sec. 1, Rule 41, Rules of Court; December 27, 2007)

6
 FRESH PERIOD RULE: To standardize the appeal periods and afford litigants fair opportunity to appeal their cases,
the Supreme Court ruled in Neypes vs. Court of Appeals that litigants must be given a fresh period of 15 days within
which to appeal, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration under
Rules 40, 41, 42, 43 and 45 of the Rules of Court. In Fil-Estate Properties, Inc. vs. Homena-Valencia, the Supreme
Court held that the principle retroactively applies even to cases pending prior to the promulgation of Neypes on September
14, 2005, there being no vested rights in the rules of procedure. (DUARTE VS. MIGUEL SAMUEL, A.E. DURAN [2011])

RULE 45
Kind of action A mode of appeal, wherein court
exercises its appellate jurisdiction
Basis Must be based on question of law
Parties Lower court is not impleaded
Requisites Motion for reconsideration is not
required
When filed Within 15 days from notice of
judgment or final order or
resolution appealed from
Effect Stays the judgment appealed from
RULE 65
A special civil action wherein court exercises its original
jurisdiction and resorted only when there is no appeal, plain
and speedy remedy in the ordinary course of law
Must be based on whether or not tribunal, board or officer
exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction.
Lower court is impleaded as a party respondent
Motion for reconsideration or new trial is required (Subject to
certain exceptions)
Within 60 days from notice of judgment or final order or
resolution appealed from
Does not stay the judgment appealed from except when a
motion for reconsideration or a temporary restraining order is
issued.

IF INDEED SUMMONS WAS NOT PROPERLY SERVED ON RESPONDENT SPOUSE IN A PETITION FOR
ANNULMENT OF MARRIAGE, THEN HIS REMEDY IS TO FILE A PETITION FOR ANNULMENT OF JUDGMENT UNDER
RULE 47 OF THE RULES OF COURT. An action for the annulment of judgment is an equitable recourse that is independent
of the case and is allowed only in exceptional cases, such as when there is no more available or other adequate remedy.
(TORTAL v. TANIGUCHI, G.R. NO. 212683, NOVEMBER 12, 2018)

EXECUTION:

a) Execution of a judgment or 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.

REQUISITES: In order to grant execution pending appeal Section 2, Rule 39 of the Rules, the following requisites
must concur: (a) there must be a motion by the prevailing party with notice to the adverse party; (b) there must be a good
reason for execution pending appeal; and (c) the good reason must be stated in a special order. The requirement of "good
reasons" must be premised on solid footing so as to ensure that the "superior circumstance" which would impel immediate
execution is not merely contrived or based on speculation. (GSIS vs. PRUDENTIAL GUARANTEE AND ASSURANCE, INC., G.R.
No. 165585, November20, 2013, PERLAS-BERNABE)

A. PROCEDURE FOR EXECUTION OF JUDGMENTS FOR MONEY

1. IMMEDIATE PAYMENT ON DEMAND: The officer shall demand 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 judgment obligee. If the
judgment obligee or his duly authorized representative is present at the time of payment, the judgment obligor shall pay
directly to the judgment obligee or representative.Otherwise the judgment obligor shall deliver the payment to the executing
sheriff.
2. SATISFACTION BY LEVY: The officer shall levy upon the properties of the judgment obligor giving the tatter
the option to immediately choose which 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.
3. GARNISHMENT OF DEBTS AND CREDITS: 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. 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 garnishee shall
make a written report to the court within 5 days from service of the notice of garnishment. 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 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. (Section 9, Rule 39).
4. EXAMINATION OF JUDGMENT OBLIGOR WHEN JUDGMENT RETURNED UNSATISFIED. In case the
judgment is returned unsatisfied, the judgment obligee is entitled to an order from the court which rendered the judgment,
requiring the judgment obligor to appear and be examined concerning his property and income and proceedings may be had
for the application of the property and income of the judgment obligor towards the satisfaction of the judgment. (Section 36,
Rule 39).
5. EXAMINATION OF OBLIGOR OF JUDGMENT OBLIGOR. The court may by order require the obligor of the
judgment obligor to appear before the court or commissioner appointed by it for examination. The person indebted to the
judgment obligor may pay to the sheriff holding the writ of execution the amount of his debt and this shall constitute a
sufficient discharge of the debt. (Sections 37 &39, Rule 39).
6. ORDER FOR APPLICATION OF PROPERTY AND INCOME TO SATISFACTION OF JUDGMENT. If upon
investigation of his current income and expenses, it appears that the earnings of the judgment obligor for his personal

7
services are more than necessary for the support of his family, the court may order that he pay the judgment in fixed monthly
installments, and upon his failure to pay any such installment when due without good excuse, may punish him for contempt.
(Section 40, Rule 39).
7. APPOINTMENT OF RECEIVER: 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. (Section 41, Rule 39).

B. ENFORCEMENT OF A JUDGMENT FOR THE 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 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. (Section 10[c], Rule 39). NOTE: When the
property subject of the execution contains improvements constructed or planted by the judgment obligor or his agent, the
officer can destroy, demolish, or remove said improvements upon special order of the court, issued upon motion of the
judgment obligee after due hearing and after the judgment obligor or his agent has failed to remove the same within a
reasonable time fixed by the court. (Section 10 (d), Rule 39).

C. PROCEEDINGS WHERE PROPERTY CLAIMED BY THIRD PERSON: If the property levied on is claimed by
any person other than the judgment obligor or his agent, and such person makes an affidavit of his title thereto or right to
the possession thereof, stating the grounds of such right or title, and serves the same upon the officer making the levy and a
`copy thereof upon the judgment obligee, the officer shall not be bound to keep the property, unless such judgment obligee,
on demand of the officer, files a bond approved by the court to indemnify the third-party claimant in a sum not less than the
value of the property levied on. In case of disagreement as to such value, the same shall be determined by the court issuing
the writ of execution.No claim for damages for the taking or keeping of the property may be enforced against the bond unless
the action therefor is filed within one hundred twenty (120) days from the date of the filing of the bond. The officer shall not
be liable for damages for the taking or keeping of the property, to any third-party claimant if such bond is filed. Nothing
herein contained shall prevent such claimant or any third person from vindicating his claim to the property in a separate
action, or prevent the judgment obligee from claiming damages in the same or a separate action against a third-party
claimant who filed a frivolous or plainly spurious claim (Section 16, Rule 39)

THIRD-PARTY CLAIM OR TERCERIA: A remedy afforded to a third-party with a claim to property levied, attached,
or seized by virtue of court order, wherein the third-party makes an affidavit of his title or right of possession to the property
and serves the affidavit upon the court officer and a copy upon the judgment obligee. It is available to a third-party in cases
of levy on execution (Section 16, Rule 39), attachment (Section 14, Rule 57), and replevin (Sec. 7, Rule 60).

SINCE THE RECOGNITION OF A FOREIGN JUDGMENT ONLY REQUIRES PROOF OF FACT OF THE
JUDGMENT, IT MAY BE MADE IN A SPECIAL PROCEEDING FOR CANCELLATION OR CORRECTION OF ENTRIES IN
THE CIVIL REGISTRY UNDER RULE 108 OF THE RULES OF COURT. Rule 1, Section 3 of the Rules of Court provides that
“[a] special proceeding is a remedy by which a party seeks to establish a status, a right, or a particular fact.” Rule
108 creates a remedy to rectify facts of a person’s life which are recorded by the State pursuant to the Civil Register Law or
Act No. 3753. These are facts of public consequence such as birth, death or marriage, which the State has an interest in
recording. As noted by the Solicitor General, in Corpuz v. Sto. Tomas this Court declared that “[t]he recognition of the
foreign divorce decree may be made in a Rule 108 proceeding itself, as the object of special proceedings (such as that
in Rule 108 of the Rules of Court) is precisely to establish the status or right of a party or a particular fact.” (Minoru
Fujiki vs. Maria Paz Galela Marinay, G.R. No. 196049, June 26, 2013)

Q: What are the essential requisites of res judicata? (Question No. IV-b, 2000 BAR)
A: The essential requisites of res judicata are: (1) the judgment or order rendered must be final; (2) the court
rendering the same must have jurisdiction of the subject matter and of the parties; (3) it must be a judgment or order on the
merits; and (4) there must be between the two cases identity of parties, identity of subject matter, and identity of causes of
action. (San Diego v. Cardona, 70 Phil. 281 [1940]).

BAR BY PRIOR JUDGMENT VS. CONCLUSIVENESS OF JUDGMENT (BAR): Bar by prior judgment is the
doctrine of res judicata, which bars a second action when there is identity of parties, subject matter and cause of action.
(Sec. 49[b] of former Rule of 39; Sec. 47[b] of new Rule 39). Conclusiveness of judgment precludes the relitigation of a
particular issue in another action between the same parties on a different cause of action. (Sec. 49[c] of former Rule 39;
Sec. 47[c] of new Rule 39). There is “bar by prior judgment” when, as between the first case where the judgment was
rendered, and the second case that is sought to be barred, there is identity of parties, subject matter, and causes of
action. But where there is identity of parties and subject matter in the first and second cases, but no identity of causes of
action, the first judgment is conclusive only as to those matters actually and directly controverted and determined and not
as to matters merely involved therein. On the other hand, under the doctrine of conclusiveness of judgment, facts and
issues actually and directly resolved in a former suit cannot again be raised in any future case between the same parties,
even if the latter suit may involve a different claim or cause of action. The identity of causes of action is not required but
merely identity of issues. (PHILIPPINE NATIONAL BANK VS. SIA, G.R. NO. 165836, FEBRUARY 18, 2009, SECOND DIVISION,
QUISUMBING, J.).

LAW OF THE CASE DOCTRINE: IT APPLIES IN A SITUATION WHERE AN APPELLATE COURT HAS MADE A
RULING ON A QUESTION ON APPEAL AND THEREAFTER REMANDS THE CASE TO THE LOWER COURT FOR
FURTHER PROCEEDINGS; THE QUESTION SETTLED BY THE APPELLATE COURT BECOMES THE LAW OF THE CASE
AT THE LOWER COURT AND IN ANY SUBSEQUENT APPEAL. (VIOS VS. PANTANGCO, JR., G.R. NO. 163103, FEBRUARY 6,
2009, SECOND DIVISION, BRION, J.).

DOCTRINE OF IMMUTABILITY OF JUDGMENT: A decision that has acquired finality becomes immutable and
unalterable, and may no longer be modified in any respect, even if the modification is meant to correct erroneous conclusions
of fact and law, and whether it be made by the court that rendered it or by the Highest Court of the land. (Sangguniang
Barangay of Pangasugan vs Exploration Permit Application (EXPA000005-VIII) of Philippine National Oil Company, G.R. No.
162226, September 2, 2013, PERLAS-BERNABE).
8
 EXCEPTIONS: This principle has exceptions, namely: (1) the correction of clerical errors; (2) the so-called nunc pro
tunc entries which cause no prejudice to any party; (3) void judgments; and (4) whenever circumstances transpire after the
finality of the decision rendering its execution unjust and inequitable. x x x x
One of the exception to this is if the issues posed by the case are of transcendental importance. The matter
before us is of transcendental importance to the nation because of the subject matter involved agrarian reform. The
Supreme Court held in many cases that: A final and executory judgment can no longer be attacked by any of the parties or be
modified, directly or indirectly, even by the highest court of the land. However, this Court has relaxed this rule in order to
serve substantial justice considering (a) matters of life, liberty, honor or property, (b) the existence of special or compelling
circumstances, (c) the merits of the case, (d) a cause not entirely attributable to the fault or negligence of the party favored by
the suspension of the rules, (e) a lack of any showing that the review sought is merely frivolous and dilatory, and (f) the o ther
party will not be unjustly prejudiced thereby. x x xx Truly, agrarian reform is so important to the national agenda that the
Solicitor General, no less, pointedly linked agricultural lands, its ownership and abuse, to the idea of revolution (Apo Fruits
Corporation and Hijo Plantation, Inc. vs. The Hon. Court of Appeals, and Land Bank of the Philippines, GR NO. 164195
December 4, 2009)

SPECIAL CIVIL ACTIONS

CERTIORARI: A special petition for certiorari under Rule 65 of the Rules of Court is availed of when a "tribunal,
board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with
grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law." It is intended to correct errors of jurisdiction only or grave abuse of
discretion amounting to lack or excess of jurisdiction. Its primary purpose is to keep an inferior court within the parameters
of its jurisdiction or to prevent it from committing such grave abuse of discretion amounting to lack or excess of jurisdiction.
The essential requisites for a petition for certiorari under Rule 65 are: (1) the writ is directed against a tribunal, a board, or
an officer exercising judicial or quasi-judicial functions; (2) such tribunal, board, or officer has acted without or in excess of
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or an y
plain, speedy, and adequate remedy in the ordinary course of law. (REPUBLIC vs. ROQUE [2013], Perlas-Bernabe)

APPLICATION OF CERTIORARI UNDER RULE 65 TO JUDGMENTS OF THE COMELEC AND COA

Rule 64 Rule 65
Directed only to the judgments, final orders or resolutions of Directed to any tribunal, board, or officer exercising
COMELEC and COA judicial or quasi-judicial functions
Filed within 30 days from notice of the judgment Filed within 60 days from notice of the judgment
The filing of a MR or a Motion for New Trial if allowed, The period within which to file the petition if the MR or
interrupts the period for the filing of the petition for certiorari. new trial is denied, is 60 days from notice of the denial of
the motion.
If the motion is denied, the aggrieved party may file the
petition within the remaining period, but which shall not
be less than 5 days reckoned from the notice of denial.

MANDAMUS IS NOT A PROPER REMEDY TO COMPEL THE PHILIPPINE MILITARY ACADEMY (PMA) TO
CONFER TO A GRADUATING CADET HIS DIPLOMA AND AWARD. Mandamus cannot be granted on the basis of academic
freedom. The powers to confer degrees at the PMA, grant awards and commission officers in the military service are
discretionary acts on the part of the President as the AFP Commander-in-chief. There are standards that must be met. There
are policies to be pursued. Discretion appears to be of the essence (First Class Cadet Aldrin Jeff Cudia vs. The Superintendent
of the Philippine Military Academy [2015]).

MANDAMUS VS. QUO WARRANTO: Where the respondent merely excludes the petitioner from an office without
usurping, intruding into, or unlawfully holding the office, the proper remedy is mandamus. If the respondent however claims
any right to the office and usurps, intrudes into, or unlawfully holds it against the petitioner, the proper remedy would be
quo warranto. (Burguete v. Mayor, 94 Phil. 930).

ACCION INTERDICTAL ACCION PUBLICIANA ACCION REIVINDICATORIA

Summary action for the recovery of A plenary action (full trial An action for the recovery of ownership,
physical possession where the proceeding) for the recovery of the which necessarily includes the recovery of
dispossession has not lasted more REAL right of possession when the possession
than one year dispossession has lasted for more
than one year
Under MTC’s jurisdiction only RTC’s jurisdiction if the value of RTC’s jurisdiction if the value of property
property exceeds P20,000, or exceeds P20,000, or P50,000 in Metro
P50,000 in Metro Manila Manila

FORCIBLE ENTRY VS. UNLAWFUL DETAINER

FORCIBLE ENTRY UNLAWFUL DETAINER

Possession becomes unlawful right from the very start.
The deprivation of physical possession of land and
building is effected through force, intimidation,
strategy, threat or stealth (FISTS).
The issue centers on who was in prior possession de
facto.
Previous demand upon defendant to vacate not
required.
The plaintiff must allege and prove that he was in
prior physical possession of the premises until deprived
Possession was lawful at first but later becomes illegal.
The unlawful withholding of possession is made after the
expiration or termination of the right to hold possession under
any contract, express or implied.
The issue centers on whether the defendant’s right to possess
has expired or not.
Previous demand to vacate required (jurisdictional).
The plaintiff need not be in prior physical possession.

9
 thereof.
1-year period counted from date of actual entry on the 1-year period counted from date of last demand or last letter of
land. demand.

A BOUNDARY DISPUTE MUST BE RESOLVED IN THE CONTEXT OF ACCION REIVINDICATORIA, NOT AN

EJECTMENT CASE. The boundary dispute is not about possession, but encroachment, that is, whether the property claimed
by the defendant formed part of the plaintiff’s property. A boundary dispute cannot be settled summarily under Rule 70
of the Rules of Court, the proceedings under which are limited to unlawful detainer and forcible entry. (NOTE:
Consider the assessed value of the property). In unlawful detainer, the defendant unlawfully withholds the possession of the
premises upon the expiration or termination of his right to hold such possession under any contract, express or implied. The
defendant’s possession was lawful at the beginning, becoming unlawful only because of the expiration or termination of his
right of possession. In forcible entry, the possession of the defendant is illegal from the very beginning, and the issue centers
on which between the plaintiff and the defendant had the prior possession de facto. (MANALANG VS. BIENVENIDO AND
MERCEDES BACANI [2015]).

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT IN EJECTMENT

GENERAL RULE: If judgment is rendered against a defendant, execution shall issue immediately.
EXCEPTION: Appeal has been duly perfected by the defendant and bond has been posted.

PROCEDURE FOR STAYING THE EXECUTION OF JUDGMENT:

1. defendant perfects his appeal in due time;
2. defendant files a sufficient supersedeas bond approved by the Municipal Trial Court; and
3. 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, Section19]. 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 defendant’s appeal is frivolous or
dilatory, or that the appeal of the plaintiff is prima facie meritorious. [Rule 70, Section 20]

JUDICIAL FORECLOSURE EXTRAJUDICIAL FORECLOSURE

Governed by the Rules of Court
Involves the filing of an independent action
Equity of redemption EXCEPT if the foreclosure is in
favor of banks as mortgagees, a Right of redemption
exists
No right of redemption except when mortgagee is a
banking institution; equity of redemption only (90 to
120 days, and any time before confirmation of
foreclosure sale)
There could be a deficiency judgment
Mortgagee can move for deficiency judgment in the
same action
Recovery of deficiency is by mere motion for a
deficiency judgment
Complaint is filed with the courts
Buyer at public auction becomes absolute owner only
after confirmation of the sale
Governed by Act 3135 as amended
Does not require filing of an action
Right of redemption
Mortgagor has a right of redemption for one year from
registration of the sale
No deficiency judgment because there is no judicial
proceeding
BUT deficiency can be recovered
Mortgagee has to file a separate action to recover any
deficiency
Recovery of deficiency is by an independent action.
No complaint is filed
Buyer at public auction becomes absolute owner only
after finality of an action for consolidation of ownership

EQUITY OF REDEMPTION VS. RIGHT OF REDEMPTION: In relation to mortgage, the right of redemption exists in
extra-judicial foreclosure; while equity of redemption exists only in judicial foreclosure.In extrajudicial foreclosure, the
mortgagor may exercise his right of redemption within 1 year from the registration of the sale in the Office of the Registry of
Deeds; In judicial foreclosure, the mortgagor may exercise his equity of redemption during the period of not less than 90
days nor more than 120 days from entry of judgment of foreclosure or even after the foreclosure sale but before the judicial
confirmation of the sale. There is no right of redemption in judicial foreclosure of mortgage, except only if the mortgagee is
the Philippine National Bank or any banking institution. Thus, in judicial foreclosure of mortgage where the mortgagee is
the Philippine National Bank or any banking institution, there exist both equity of redemption and right of redemption.
(Huerta Alba Resort v. CA [2000]).

Direct Contempt Indirect Contempt

In general is committed in the presence of or so near the
court or judge as to obstruct or interrupt the proceedings
before it;
Any of the following acts constitutes direct
contempt:
(a) Misbehavior in the presence of or so near the court
as to obstruct or interrupt the proceedings before the
same;
(b) Disrespect toward the court;
(c) Offensive personalities towards others;
It is not committed in the presence of the court, but done at a
distance which tends to belittle, degrade, obstruct or embarrass
the court and justice;
Acts constituting indirect contempt are:
(a) Misbehavior an officer of a court in the performance of his
official duties or in his official transactions;
(b) Disobedience of or resistance to a lawful writ, process, order, or
judgment of a court, including the act of a person who, after being
dispossessed or ejected from any real property by the judgment or
process of any court of competent jurisdiction, enters or attempts
or induces another to enter into or upon such real property, for
the purpose of executing acts of ownership or possession, or in
any manner disturbs the possession given to the person adjudged

10
(d) Refusal to be sworn as a witness or to answer as a to be entitled thereto;
witness, (c) Any abuse of or any unlawful interference with the processes or
proceedings of a court not constituting direct contempt under
(e) Refusal to subscribe an affidavit or deposition section 1 of this Rule;
when lawfully required to do so (Sec. 1, Rule 71, Rules (d) Any improper conduct tending, directly or indirectly, to
of Court). impede, obstruct, or degrade the administration of justice;
(e) Assuming to be an attorney or an officer of a court, and acting
f) Acts of a party or a counsel which constitute willful as such without authority;
and deliberate forum shopping (Sec. 1, Rule 7); (f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the
g) Unfounded accusations or allegations or words in custody of an officer by virtue of an order or process of a court
a pleading tending to embarrass the court or to bring held by him (Sec. 3);
it into disrepute (Re: Letter dated 21 Feb. 2005 of Atty.
Noel Sorreda, 464 SCRA 32); Note: Nothing in this section shall be so construed as to
prevent the court from issuing process to bring the respondent
into court, or from holding him in custody pending such
proceedings. (Sec. 3 Rule 71)

EXPROPRIATION is incapable of pecuniary estimation. Thus, it falls within the jurisdiction of RTC, regardless of the
value of the subject property. The subject of an expropriation case is the determination of the government's right to take
private property for public use. (Brgy. San Roque v. Pastor, [2000]).

R.A. 8974 OR OTHERWISE KNOWN AS “AN ACT TO FACILITATE THE ACQUISITION OF RIGHT-OF-WAY, SITE OR
LOCATION FOR NATIONAL GOVERNMENT INFRASTRUCTURE PROJECTS AND FOR THE PURPOSES”:

Sec. 4. of RA 8974 otherwise known as “An Act to facilitate the acquisition of right-of-way, site or location for national
government infrastructure projects and for the purposes”: [w]henever it is necessary to acquire real property for the right-of-
way or location for any national government infrastructure project through expropriation, the appropriate
implementing agency shall initiate the expropriation proceedings before the proper court under the following guidelines:
1. Upon the filing of the complaint, and after due notice to the defendant, the implementing agency shall
immediately pay the owner of the property the amount equivalent to the sum of (1) 100% of the value of the property
based on the current relevant zonal valuation of the Bureau of Internal Revenue (BIR); and (2) the value of the
improvements and/or structures as determined under Section 7 hereof;
2. In provinces, cities, municipalities and other areas where there is no zonal valuation, the BIR is hereby
mandated within the period of sixty (60) days from the date of the expropriation case, to come up with a zonal
valuation for said area;
3. In case the completion of a government infrastructure project is of utmost urgency and importance, and
there is no existing valuation of the area concerned, the implementing agency shall immediately pay the owner of the
property its proffered value taking into consideration the standards prescribed in Section 5 hereof. Upon compliance
with the guidelines above-mentioned, the court shall immediately issue to the implementing agency an order to take
possession of the property and start the implementation of the project.

DISTINCTION BETWEEN RULE 67 AND R.A. 8974: While Rule 67 merely requires the Government to deposit with
an authorized government depositary the assessed value of the property for the expropriation for it to be entitled to a writ of
possession, Rep. Act No. 8974 requires that the government make a direct payment to the property owner before the writ
may issue. Moreover, such payment is based on the zonal valuation of the BIR in the case of land, the value of the
improvements or structures under the replacement cost method, or if no such valuation is available and in cases of utmost
urgency, the proffered value of the property to be seized. “Rep. Act 8974, which provides for a procedure eminently more
favorable to the property owner than the Rule 67, inescapably applies in instances when the national government
expropriates property “for national government infrastructure projects.” Thus, if expropriation is engaged in by the national
government for purposes other than national infrastructure projects, the assessed value standard and the deposit mode
prescribed in Rule 67 continues to apply. The intent of R.A. 8974 to supersede the system of deposit under Rule 67 with the
scheme of “immediate payment” in cases involving national government infrastructure projects is indeed very clear (Republic
vs. Gingoyon [2005]).

PARTITION MTC HAS JURISDICTION OVER A PARTITION OF A REAL PROPERTY WITH AN ASSESSED VALUE
OF P8,000.00 LOCATED IN BACOLOD CITY. (BARRIDO VS. NONATO, OCT. 20, 2014

GENERAL RULE: A CO-OWNER IS ALLOWED TO FILE A PETITION FOR PARTITION ANY TIME. The Civil Code
provides that “NO co-owner shall be obliged to remain in the co-ownership.”
EXCEPTIONS:
1. When partition is prohibited by law (example: party wall) [Art. 494 CC];
2. Existence of an agreement among co-owners to retain the property undivided for not exceeding ten years [Art.
494 CC];
3. When partition is prohibited by the donor or testator for a period not exceeding 20 years [Art. 494, 1083 CC];
4. When the condition imposed upon voluntary heirs before they can demand partition has not yet been
fulfilled. [Art. 1084, NCC];
5. When the property cannot be subject to a physical division and to do so would render it unserviceable for
the use for which is it intended [Art. 495, NCC].

ALL CO-HEIRS ARE INDISPENSABLE PARTIES: All the co-heirs and persons having an interest in the property are
indispensable parties; as such, an action for partition will not lie without the joinder of the said parties. The mere fact that
Pedro Sepulveda, Sr. has repudiated the co-ownership between him and the respondent does not deprive the trial court of
jurisdiction to take cognizance of the action for partition, for, in a complaint for partition, the plaintiff seeks, first, a
declaration that he is a co-owner of the subject property; and, second, the conveyance of his lawful shares. [Sepulveda v.
Pelaez [2005]).

11
 QUIETING OF TITLE: AN ACTION FOR QUIETING OF TITLE IS A REAL ACTION. THUS, JURISDICTION IS
DETERMINED BY THE ASSESSED VALUE OF THE REAL PROERTY. IT MAY BE FILED THEREFORE IN THE MTC OR
RTC DEPENDING ON THE ASSESSED VALUE OF THE REAL PROPERTY. (Heirs of Spouses Reterta vs. Spouses Mores, 655
SCRA 580)

QUO WARRANTO (OEC) QUO WARRANTO (RULE 66)

Governed by election laws Governed by the rules of Court
Issue is the eligibility or ineligibility of the person elected or Issue is the legality or illegality of the occupancy of the
his loyalty or disloyalty to the Republic office by virtue of an appointment
Petition is filed within 10 days after the proclamation of the Filed within one year from the time the cause of ouster, or
results of the election the right of the petitioner to hold office arose
Petition is brought in the COMELEC, RTC, or MTC Petition is brought in the SC, CA or RTC
Petitioner may be any voter even if he is not entitled to the Petitioner is the person claiming to be entitled to office
office
Subject of the petition is in relation to an appointive office;
Subject of the petition is in relation to an elective office;
When the tribunal declares the candidate-elect as The court has to declare who the person entitled to the office
ineligible, he will be unseated but the person occupying is if he is the petitioner.
the second place will not be declared as the one duly
elected because the law shall consider only the person who,
having duly filed his certificate of candidacy, received a
plurality of votes.

FOR A QUO WARRANTO PETITION TO BE SUCCESSFUL, THE PRIVATE PERSON SUING MUST SHOW A CLEAR
RIGHT TO THE CONTESTED OFFICE. In fact, not even a mere preferential right to be appointed thereto can lend a
modicum of legal ground to proceed with the action. In the present case, petitioner presented no sufficient proof of a clear
and indubitable franchise to the office of an Associate Justice of the Sandiganbayan. He in fact concedes that he was never
entitled to assume the office of an Associate Justice of the Sandiganbayan. In the instance in which the Petition for Quo
Warranto is filed by an individual in his own name, he must be able to prove that he is entitled to the controverted public
office, position, or franchise; otherwise, the holder of the same has a right to the undisturbed possession thereof. In actions
for Quo Warranto to determine title to a public office, the complaint, to be sufficient in form, must show that the
plaintiff is entitled to the office. In Garcia v. Perez, this Court ruled that the person instituting Quo Warranto proceedings
on his own behalf, under Section 5, Rule 66 of the Rules of Court, must aver and be able to show that he is entitled to the
office in dispute. Without such averment or evidence of such right, the action may be dismissed at any stage.
(TOPACIO, vs. ASSOC. JUSTICE OF THE SANDIGANBAYAN GREGORY SANTOS ONG and THE OFFICE OF THE SOLICITOR
GENERAL [2008]).

EXCEPTION: PRESCRIPTION DOES NOT LIE AGAINST THE STATE IN QUO WARRANTO PROCEEDINGS.

Republic of the Philippines v. Maria Lourdes Sereno

G.R. No. 237428, 11 May 2018
Associate Justice Noel Tijam

PRESCRIPTION DOES NOT LIE AGAINST THE STATE. THE ONE-YEAR LIMITATION IS NOT APPLICABLE WHEN
THE PETITIONER IS NOT A MERE PRIVATE INDIVIDUAL PURSUING A PRIVATE INTEREST, BUT THE GOVERNMENT
ITSELF SEEKING RELIEF FOR A PUBLIC WRONG AND SUING FOR PUBLIC INTEREST. In the three instances
enumerated by Rules of Court, the Solicitor General is mandated under the Rules to commence the necessary quo warranto
petition, as seen in the use of the word “must.” In Agcaoili v. Suguitan, “As a general principle it may be stated that
ordinary statutes of limitation, civil or penal, have no application to quo warranto proceeding brought to enforce a
public right.” In effect, when the government is the real party in interest, and is proceeding mainly to assert its rights, there
can be no defense on the ground of laches or prescription. Indubitably, the basic principle that “prescription does not lie
against the State” which finds textual basis under Article 1108 (4) of the Civil Code, applies in this case. That prescription
does not lie in this case can also be deduced from the very purpose of an action for quo warranto, which is to prevent
a continuing exercise of an authority unlawfully asserted. The Republic, then, cannot be faulted for questioning
Respondent’s qualification for office only upon discovery of the cause of ouster. Respondent cleverly hid the fact of
non-filing by stating that she should not be required to submit the said documents as she was considered to be coming from
private practice; that it was not feasible to retrieve most of her records in the academe considering that the same are more
than fifteen years old; and that U.P. already cleared her of “all academic/administrative responsibilities, money and property
accountabilities and from administrative charges”. She has never been clear on whether she had filed the required SALNs or
not. Given the foregoing, there can be no acquiescence or inaction, in this case, on the part of the Republic as would amount
to an abandonment of its right to seek redress against a public wrong and vindicate public interest. (Republic v. Sereno
[2018]).

INTERPLEADER: An action for interpleader is a special civil action which is filed whenever conflicting claims upon
the same subject matter are or maybe against a person who claims no interest whatever in the subject matter, or an interest
which in whole or in part is not disputed by the claimants, in which case, he may bring the action against the conflicting
claimants to compel them to interplead and litigate their several claims among themselves.

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 PROVISIONAL REMEDIES
KINDS OF INJUNCTION
1. PRELIMINARY PROHIBITORY (PREVENTIVE) INJUNCTION: It 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. (Sec.1 Rule 58) Preliminary preventive injunction prohibits the performance of a particular act or acts
2. PRELIMINARY MANDATORY INJUNCTION: It requires the performance of a particular act or acts. (Sec.1, Rule
58) REQUISITES: 1. Invasion of the right is material and substantial; 2. Right of the complainant is clear and unmistakable;
3. Urgent and paramount necessity for the writ to prevent serious damage; 4. The effect would not be to create a new relation
between the parties.
3. FINAL INJUNCTION: It perpetually restraining the party or person enjoined from the commission or
continuance of the act or acts or confirming the preliminary mandatory injunction: (a) Granted if, after the trial of the
action, it appears that the applicant is entitled to have the act or acts complained of permanently enjoined; (b) May
perpetually restrain the party or person enjoined from the commission or continuance of the act or acts or confirming the
preliminary mandatory injunction. (Section 9, Rule 58 of the Rules of Court).

Status Quo Order Temporary Restraining Order

Does not directly direct the doing or undoing of
acts as it seeks to maintain the status quo. It is a
“cease and desist order”
Without prescriptive period. It last only when it is
revoked
May be issued without a bond
May be extended upon agreement of the parties
Mandates or prohibits the doing or the undoing of an act or acts
directly
Dies after the period wherein it is allowed. It is provisional
As a general rule, must be issued with a bond unless exempted
by the trial court.
Not extendible.

2. SECTION 5, RULE 58 OF THE RULES OF COURT EXPRESSLY PROHIBITS THE GRANT OF

PRELIMINARY INJUNCTION WITHOUT HEARING AND PRIOR NOTICE TO THE PARTY OR PERSON SOUGHT TO BE
ENJOINED. However, courts are authorized to issue ex parte a TRO effective only for seventy-two (72) hours if it should
appear from the facts shown by affidavits or by the verified petition that great or irreparable injury would result to the
applicant before the matter could be heard on notice. Within the aforesaid period of time, the Court should conduct a
summary hearing to determine if a TRO shall be issued. The TRO, however, shall be effective only for a period of twenty (20)
days from notice to the party or person sought to be enjoined. During the 20-day period, the judge must conduct a hearing
to consider the propriety of issuing a preliminary injunction. At the end of such period, the TRO automatically terminates
without need of any judicial declaration to that effect, leaving the court no discretion to extend the same. (MAYOR SAMPIANO
VS. JUDGE INDAR [2009]).

TRO ISSUED BY EFFECTIVITY

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 R.A. NO. 8975, BAN ON ISSUANCE OF TRO OR WRIT OF INJUNCTION IN CASES INVOLVING
GOVERNMENT INFRASTRUCTURE PROJECTS: Except for the Supreme Court, no 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’s discretion, to restrain, prohibit, or compel the following acts:
1. Acquisition, clearance, and development of the right-of-way and/or site or location of any national government project; 2.
Bidding or awarding of contract/project of the national government; 3. Commencement, prosecution, execution,
implementation, or operation of any such contract or project; 4. Termination or rescission of any such contract/project; and
5.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:1.When the matter is of extreme urgency involving a constitutional issue, such that unless a TRO is issued, grave
injustice and irreparable injury will arise; and 2. Upon the filing of a bond by the applicant, the amount which is to be fixed
by the court and shall accrue in favor of the government if the court should finally decide that the applicant was not entitled
to the relief sought. (Section 3 of R.A. 8975) Any TRO, preliminary injunction, or preliminary mandatory injunction issued in
violation of Sec. 3 is void and of no force and effect. (Section 4 of R.A. 8975) Any judge who shall issue the same in violation
of Section 3 shall suffer the penalty of suspension of at least 60 days without pay, in addition to any civil or criminal
liabilities he or she may incur under existing laws. (Section 6 of R.A. 8975)

GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT (BAR): 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 employm ent 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 part 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;

13
 (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. (Sec. 1 Rule 57)

RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF SUMMONS: “No levy on attachment pursuant to the writ
issued under section 2 hereof shall be enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, and the
order and writ of attachment, on the defendant within the Philippines. . .”

EXCEPTIONS TO CONTEMPORANEOUS SERVICE OF SUMMONS:

1. Summons could not be served personally or by substituted service despite diligent efforts, or
2. Defendant is a resident of the Philippines temporarily absent therefrom, or
3. Defendant is a non-resident, or
4.The action is in rem or quasi in rem. (Section 5, Rule 57 of the Rules of Court)

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.

CASES WHEN RECEIVER MAY BE APPOINTED: Upon a verified application, one or more receivers of the property
subject of the action or proceeding may be appointed by the court where the action is pending, or by the Court of Appeals or
by the Supreme Court, or a member thereof, in the following cases:
(a) When it appears from the verified application, and such other proof as the court may require, that the party
applying for the appointment of a receiver 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;
(b)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 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;
(c) After judgment, to preserve the property during the pendency of an appeal, or to dispose of it according to the
judg­ment, or to aid execution 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;
(d) 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.
NOTE: During the pendency of an appeal, the appellate court may allow an application for the appointment of a
receiver to be filed in and decided by the court of origin and the receiver appointed to be subject to the control of said court.
(1a)

REQUISITES FOR ISSUANCE OF A WRIT 0F REPLEVIN: The applicant must show by his own affidavit or that of
some other person who personally knows the facts:
(a) That the applicant is the owner of the property claimed, particularly describing it, or is entitled to the possession
thereof;
(b) That the property is wrongfully detained by the adverse party, alleging the cause of detention thereof according to
the best of his knowledge, information, and belief;
(c) That the property has not been distrained or taken for a tax assessment or a fine pursuant to law, or seized under
a writ of execution or preliminary attachment, or otherwise placed under custodia legis, or if so seized, that it is exempt from
such seizure or custody; and
(d) The actual market value of the property.

The applicant must also give a bond, executed to the adverse party in double the value of the property as stated in
the affidavit aforementioned, for the return of the property to the adverse party if such return be adjudged, and for the
payment to the adverse party of such sum as he may recover from the applicant in the action. (Section 2, Rule 60)

IF A MORTGAGOR EXECUTES A CHATTEL MORTGAGE OVER A PARTICULAR MACHINE AND TREATED THE
SAME AS A PERSONAL PROPERTY, HE IS ESTOPPED FROM ARGUING THAT THE SAID MACHINERY IS ACTUALLY A
REAL PROPERTY WHICH CANNOT BE A SUBJECT OF A CHATTEL MORTGAGE AND REPLEVIN. Under the principle of
estoppel, a party to a contract is ordinarily precluded from denying the truth of any material averment of fact found therein.
(Serg's Products Inc. v. PCI Leasing & Finance Co. [2000]).

SPECIAL PROCEEDINGS
JURISDICTION IN PROBATE PROCEEDINGS: In all matters of probate, both testate and intestate, where the gross
value of the estate exceeds Three hundred thousand pesos (P300,000.00) or, in probate matters in Metro Manila, where such
gross value exceeds Four hundred thousand pesos (400,000.00), the petition should be filed before the Regional Trial Court;
Otherwise, before the MTC. (Section 19. B.P.129 as amended by R.A. 7691).Simply put, the determination of which court
exercises jurisdiction over matters of probate depends upon the gross value of the estate of the decedent. Hence, the
court may be the MTC or RTC. (Rufina Luy Lim vs. Court of Appeals, et al., G.R. No. 124715 , January 24, 2000, BUENA, J.)

VENUE IN JUDICIAL SETTLEMENT OF ESTATE: The residence of the decedent at the time of his death is
determinative of the venue of the proceeding. If the decedent is an inhabitant of the Philippines at the time of his death,
whether a citizen or an alien, his will shall be proved, or letters of administration granted, and his estate settled, in the
RTC OR MTC in the province in which he resides at the time of his death. If he is an inhabitant of a foreign country, the
Regional Trial Court of any province in which he had estate. (Sec.1 Rule 73)

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 PRINCIPLE OF PREFERENTIAL JURISDICITON (VENUE): THE COURT FIRST TAKING COGNIZANCE OF THE
SETTLEMENT OF ESTATE OF A DECEDENT SHALL EXERCISE JURISDICTION TO THE EXCLUSION OF ALL OTHER
COURTS. (S1 R73).

THE LAW FAVORS TESTACY OVER INTESTACY. HENCE, THE PROBATE OF THE WILL CANNOT BE
DISPENSED WITH. (SEC. 5, RULE 75). THERE IS PREFERENTIAL JURISDICTION WHERE TESTATE PROCEEDINGS
ARE FILED.

(BAR) If a will is found in the course of intestate proceedings and it is submitted for probate, the intestate
proceedings will be suspended until the will is probated. Upon the probate of the will, the intestate proceedings will
be terminated (Rule 82, Sec. 1).

General Rule: ESTATE OF THE DECEASED SHOULD BE JUDICIALLY ADMINISTERED THRU AN

ADMINISTRATOR OR EXECUTOR. When a person dies leaving property, the same should be JUDICIALLY ADMINISTERED
and the competent court should appoint a qualified administrator, in the order established in Section 6, Rule 78, in case the
deceased left no will, or in case he had left one, should he fail to name an executor therein. (Pereira vs CA, G.R. No. L-81147
June 20, 1989)

EXCEPTIONS:
1. Extrajudicial settlement (Section 1, Rule 74)
2. Affidavit of Self Adjudication
3. Summary settlement of estates of small value (Section 2, Rule 74)

A. EXTRA-JUDICIAL SETTLEMENT OF ESTATE: The decedent left no will and no debts or if there are debts,
all have paid; the heirs are all of age or the minors are represented by their judicial or legal representative duly authoriz ed for
the purpose; the partition was made by means of s public instrument or Affidavit duly filed with the Registry of Deeds (Heirs
of Joaquin Teves vs. CA, October 13, 1999) (Question No. 6-1, 1994 BAR; No. XV-2, 2001 BAR; No. V-2, 2005 BAR)

EFFECT OF EXCLUSION OF HEIRS.

Neri, at al. vs. Heirs of Hadji Yusop Uy and Julpha Ibrahim Uy.,
G.R. No. 194366, October 10, 2012,
PERLAS-BERNABE

Section 1 of Rule 74 does not apply to the partition in question which was null and void as far as the plaintiffs were
concerned. The rule covers only valid partitions. Under the rule “no extrajudicial settlement shall be binding upon any person
who has not participated therein or had no notice thereof.” In the execution of the Extra-Judicial Settlement of the Estate with
Absolute Deed of Sale in favor of spouses Uy, all the heirs of Anunciacion should have participated. Considering that
Eutropia and Victoria were admittedly excluded and that then minors Rosa and Douglas were not properly
represented therein, the settlement was not valid and binding upon them and consequently, a total nullity. Section 1,
Rule 74 of the Rules of Court provides: SECTION 1. Extrajudicial settlement by agreement between heirs. – x x x no
extrajudicial settlement shall be binding upon any person who has not participated therein or had no notice thereof.
x x x Thus, the partition was a total nullity and did not affect the excluded heirs. (Neri, at al. vs. Heirs of Hadji Yusop Uy and
Julpha Ibrahim Uy., G.R. No. 194366, October 10, 2012, PERLAS-BERNABE)

GENERAL RULE: PROBATE COURT CANNOT PASS UPON ISSUE OF OWNERSHIP:

EXCEPTION:
Where interested parties are all heirs and the rights of third parties are not impaired. Probate Court (PC) can
decide question of ownership (Coca vs. Pangilinan, 81 SCRA 278 (1987) With consent of all the parties, without prejudice
to third persons (TRINIDAD vs. CA, 202 SCRA 106 (1991)

However, provisionally, ownership may be determined for the purpose of including the property in the inventory
without prejudice in its final determination in a separate action. Furthermore, when the parties are all heirs of the
decedent, they may submit the issue of ownership to the probate court, provided no third persons are prejudiced.
Thus, when the parties are all heirs of the decedent, it is optional upon them to submit to the probate court the question
of title to property and, when so submitted, the probate court may definitely pass judgment thereon. The probate court in
the inclusion incident could not determine the question of title. (Valero Vda. de Rodriquez vs. Court of Appeals, L-39532,
July 20, 1979, 91 SCRA 540). (Francisco E. Pobre vs. Hon. Judge Arsenio M. Gonong et al., G.R. No. L-60575, March 16, 1987,
ALAMPAY, J.).

PROBATE COURT: ISSUES THAT MAY BE RESOLVED BY THE PROBATE COURT: In testament to this, it has
been held that it is within the jurisdiction of the probate court to (1) approve the sale of properties of a deceased person by
his prospective heirs before final adjudication; (2) to determine who are the heirs of the decedent; (3) the recognition of a
natural child; (4) the status of a woman claiming to be the legal wife of the decedent; (5) the legality of disinheritance of an
heir by the testator; and (6) to pass upon the validity of a waiver of hereditary rights. (Romero vs CA, G.R. No. 188921, April
18, 2012)

POWERS OF PROBATE COURTS

1. Issue warrants and processes necessary to compel the attendance of witnesses or to carry into effect their
orders and judgments, and all other powers granted them by law. (Sec.3, Rule 73);
2. Issue warrant for the apprehension and imprisonment of persons who defies a probate order until he
performs such order or judgment or is released. (Sec.3, Rule 73).
3. Order the probate of the will of the decedent. (Sec.3, Rule 77);
4. Grant letters of administration of the party best entitled thereto or to any qualified applicant. (Sec. 5, Rule
79);
5. Hear and approve claims against the estate of the deceased. (Sec.11, Rule 86);
6. Order payment of lawful debts. (Sec.11, Rule 88);
7. Authorize sale, mortgage or any encumbrance of real estate. (Sec.2, Rule 89);
15
 8. Direct the delivery of the estate to those entitled thereto. (Sec.1, Rule 90);
9. Supervise and control all acts of administration.

PROBATE OF WILL: THE AUTHORITY OF THE PROBATE COURT IS LIMITED TO ASCERTAINING WHETHER
THE TESTATOR, BEING OF SOUND MIND, FREELY EXECUTED THE WILL IN ACCORDANCE WITH THE FORMALITIES
PRESCRIBED BY LAW.THE PROBATE OF A WILL BY THE COURT HAVING JURISDICTION THEREOF IS CONSIDERED
AS CONCLUSIVE AS TO ITS DUE EXECUTION AND TESTAMENTARY CAPACITY OF THE TESTATOR (Mercado vs.
Santos, No. 45629, 22 September 1938).

THE PROBATE OF A WILL IS MANDATORY. “NO WILL SHALL PASS EITHER REAL OR PERSONAL PROPERTY
UNLESS IT IS PROVED AND ALLOWED IN THE PROPER COURT.” (ART. 838 NCC AND SEC.1 RULE 75 OF THE RULES
OF COURT)

CONTENTS OF PETITION FOR ALLOWANCE OF WILL 1.The jurisdictional facts; 2. The names, ages, and
residences of the heirs, legatees, and devisees of the testator or decedent; 3. The probable value and character of the property
of the estate; 4. The name of the person for whom letters are prayed; 5. If the will has not been delivered to the court, the
name of the person having custody of it. NOTE: But no defect in the petition shall render void the allowance of the will,
or the issuance of letters testamentary or of administration with the will annexed. (Sec. 2, Rule 76)

JURISDICTIONAL FACTS THAT MUST BE ALLEGED IN A PETITION FOR PROBATE OF A WILL: The
jurisdictional facts in a petition for probate are: (1) that a person died leaving a will; (2) in case of a resident, that he resided
within the territorial jurisdiction of the court; and (3) in the case of a non-resident, that he left an estate within such
territorial jurisdiction. The jurisdictional facts shall be contained in a petition for allowance of will.(Question No. 10 (c), 2012
BAR EXAMINATION)

REQUISITES IN ORDER THAT A LOST OR DESTROYED WILL MAY BE ALLOWED? (Question No. XI, 1999 BAR
Examination) (1) the execution and validity of the same should be established; (2) the will must have been in existence at the
time of the death of the testator, or shown to have been fraudulently or accidentally destroyed in the lifetime of the testator
without his knowledge; and (3) its provisions are clearly and distinctly proved by at least two credible witnesses. (Sec. 6, Rule
76 of the Rule of Court).

GROUNDS FOR DISALLOWING A WILL: 1. If not executed and attested as required by law; 2. If the testator was
insane, or otherwise mentally incapable to make a will, at the time of its execution; 3. If it was executed under duress, or the
influence of fear, or threats; 4. If it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit; 5. If the signature of the testator was procured by fraud or trick, and he
did not intend that the instrument should be his will at the time of fixing his signature thereto(Section 9, Rule 76 of Rules of
court); 6. The testator acted by mistake or did not intend that the instrument he signed should be his will at the time of
affixing his signature thereto. (Art 839, New Civil Code) These lists are exclusive; no other grounds can serve to disallow a
will.

SUBSTANTIAL COMPLIANCE RULE: If the Will is executed in substantial compliance with formalities of law, and
possibility of bad faith is obviated - it should be admitted to probate (De Jesus vs. De Jesus, 134 SCRA 245).

THE LAW DOES NOT PROHIBIT THE PROBATE OF WILLS EXECUTED BY FOREIGNERS ABROAD ALTHOUGH
THE SAME HAVE NOT AS YET BEEN PROBATED AND ALLOWED IN THE COUNTRIES OF THEIR EXECUTION (2014
BAR EXAMINATION) Article 816 of the Civil Code states that the will of an alien who is abroad produces effect in
the Philippines if made in accordance with the formalities prescribed by the law of the place where he resides, or according to
the formalities observed in his country. (Palaganas vs. Palaganas, G.R. No. 169144, January 26, 2011, Abad, J.)

REQUISITES FOR REPROBATE OF A WILL: 1.Testator is domiciled in a foreign country; 2. Due execution of the
will in accordance with foreign laws or Proof of compliance with the foreign procedure; 3.Will is admitted to probate in such
country; 4. Foreign court or tribunal is a probate court with jurisdiction over the proceedings; and 5. Law of the foreign
country for the valid execution of the will. In the absence of proof of the foreign law, it is presumed that it is the same a s that
in the Philippines (Doctrine of Processual Presumption).

ORDER OF PREFERENCE IN THE APPOINTMENT OF AN ADMINISTRATOR: If no executor is named in the will, or

the executor or executors are incompetent, refuse the trust, or fail to give bond, or a person dies intestate, administration
shall be granted: (a) To the surviving husband or wife, as the case may be, or next of kin, or both, in the discretion of the
court, or to such person as such surviving husband or wife, or next of kin, requests to have appointed, if competent and
willing to serve; (b) If such surviving husband or wife, as the case may be, or next of kin, or the person selected by them, be
incompetent or unwilling, or if the husband or widow, or next of kin, neglects for thirty (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; (c) If there is no such creditor competent and willing
to serve, it may be granted to such other person as the court may select. (Sec. 6, Rule 78)

APPOINTMENT OF SPECIAL ADMINISTRATOR: The court may appoint a special administrator to take possession
and charge of the estate when: 1. There is a delay in the grant of letters due to any cause including appeal in the probate of
the will; (Sec. 1, Rule 80); 2. The executor or administrator has a claim against the estate he represents. (Sec. 8, Rule 86) The
principal object of the appointment of a temporary administrator is to preserve the estate until it can pass into the hands of a
person fully authorized to administer it for the benefit of creditors and heirs. (Tan vs. Hon. Gedorio, Jr., [2008]).

Q: WHO ARE INCOMPETENT TO SERVE AS EXECUTORS OR ADMINISTRATORS

A: No person is competent to serve as executor or administrator who: (a) Is a minor;
(b) Is not a resident of the Philippines; and (c) Is in the opinion of the court unfit to execute the duties of the trust by
reason of i.) drunkenness, ii.) improvidence, or iii.) want of understanding or integrity, or iv.) by reason of conviction of an
offense involving moral turpitude. (Section 1, Rule 78) v.) Antagonistic Interest. "(I)n this jurisdiction, one is considered to
be unsuitable for appointment as administrator when he has adverse interest of some kind of hostility to those immediately
interested in the estate.". (Medina vs. CA, G.R. No. L-34760, September 28, 1973)
16
 REGULAR ADMINISTRATOR SPECIAL ADMINISTRATOR

1. Appointment may be the subject of appeal. 1. Appointment is an interlocutory order and may not be
2. One of the obligations is to pay the debts of the the subject of an appeal.
estate. 2. Cannot pay the debts of the estate.
3. Appointed when decedent died intestate or did 3. Appointed when there is delay in granting letters
not appoint an executor in the will or will was testamentary or administration.
disallowed.

GROUNDS FOR REMOVAL OF ADMINISTRATOR: If an executor or administrator neglects to render his account
and settle the estate according to law, or to perform an order or judgment of the court, or a duty expressly provided by these
rule., or absconds, or becomes insane, or otherwise incapable or unsuitable to discharge the trust, the court may remove
him, or, in its discretion, may permit him to resign. When an executor or administrator dies, resigns, or is removed, the
remaining executor. or administrator may administer the trust alone, unless the court grants letters to someone to act with
him. If there is no remaining executor or administrator, administration may be granted to any suitable person. (Sec. 2,
Rule82)

STATUTE OF NON-CLAIMS: After the Court has granted letters testamentary or administration, it shall immediately
issue a notice requiring all persons having money claims against the decedent to file them in the office of the clerk of court.
(Rule 86, Sec. 1, Rules of Court). The Notice shall state the time for the filing of claims against the estate, which shall not be
more than twelve (12) nor less than six (6) months after the date of the first publication of the notice. (Rule 86, Sec. 2, Rules of
Court).

PERIOD TO FILE THE CLAIMS: In the notice provided in Sec. 1 Rule 86, the court shall state the time for the
filing of claims against the estate, which shall not be more than twelve (12) nor less than six (6) months after the date
of the first publication of the notice.However, at any time before an order of distribution is entered, on application of
a creditor who has failed to file his claim within the time previously limited, the court may, for cause shown and on such
terms as are equitable, allow such claim to be filed within a time not exceeding one (1) month, called BELATED
CLAIMS. (Sec. 2, Rule 86)

CLAIMS THAT ARE REQUIRED TO BE FILED: All claims for money against the decedent, arising from contract,
express or implied, whether the same be due, not due, or contingent, all claims for funeral expenses and expenses for the last
sickness of the decedent, and judgment for money against the decedent, must be filed within the time limited in the notice;
OTHERWISE they are barred forever, except that they may be set forth as counterclaims in any action that the executor or
administrator may bring against the claimants (Sec. 5, Rule 86)

ACTIONS THAT MAY BE BROUGHT AGAINST EXECUTORS AND ADMINISTRATORS: The only actions that may
be instituted against the executor or administrator independently of the testate or intestate proceedings are: 1) Recovery of
real or personal property or any interest therein from the estate; 2) Enforcement of a lien thereon; 3) Action to recover
damages for an injury to person or property, real or personal; and 4) Action to recover damages for breach of contract entered
into by the decedent, but committed by the administrator, which is personal to him (Gutierrez vs. Barreto-Datu, G.R. No. L-
17175, July 31, 1962).

THE SECURED CREDITOR HAS THREE REMEDIES/OPTIONS THAT HE MAY ALTERNATIVELY ADOPT FOR
THE SATISFACTION OF HIS INDEBTEDNESS IF THE MORTGAGOR DIES DURING THE PENDENCY OF THE
MORTGAGE. In particular, he may choose to: (a) waive the mortgage and claim the entire debt from the estate of the
mortgagor as an ordinary claim; (b) foreclose the mortgage judicially and prove the deficiency as an ordinary claim; and (c)
rely on the mortgage exclusively, or other security and foreclose the same before it is barred by prescription, without
the right to file a claim for any deficiency. (SECTION 7, RULE 86) It must, however, be emphasized that these remedies are
distinct, independent and mutually exclusive from each other; thus, the election of one effectively bars the exercise of the
others. (HEIRS OF MAGLASANG vs. MANILA BANKING [2013]).

REMEDIES OF HEIR ENTITLED TO RESIDUE BUT NOT GIVEN HIS SHARE:

1. REOPENING OF PROCEEDINGS before finality of closure order if an heir was excluded in the proceedings;
2. MOTION TO DELIVER HIS SHARE – if not excluded but failed to receive his share;
3. REOPENING – if proceedings already closed within the prescriptive period (10 years).
4. ACTION FOR RECISSION/ANNULMENT OF JUDICIAL PARTITION on the ground of lesion
5. REINVINDICATORY ACTION AGAINST CO-HEIRS BASED ON CONSTRUCTIVE OR IMPLIED TRUST DUE TO
FRAUD

REMEDY OF PRETERITED HEIR: The intestate proceedings, although closed and terminated, can still be opened
within the prescriptive period upon petition by the preterited heir (Solivio vs. CA, G.R. No. 83484 February 12, 1990) NOTE:
Prescriptive period – 10 years.

ESCHEAT: 1. A person died intestate; 2. He left no heirs or persons by law entitled to such property; 3.The deceased
left real/personal properties; 4. Petition filed by Solicitor General or his representative in behalf of the Republic of the
Philippines. (Sec. 1, Rule 91)

ESCHEAT OF UNCLAIMED BALANCES: Unclaimed balances which include credits or deposits of money, bullion,
security or other evidence of indebtedness of any kind, and interest thereon with banks in favor of any person unheard from
for a period of ten (10) years of more, together with the interest and proceeds thereof shall be deposited with the Insular
Government of the Philippines as the Philippine Legislature may direct (Act No. 3936, Unclaimed Balances Act, Sec. 1)
(Republic vs. Court of First Instance of Manila and Pres.. Roxas Rural Bank, Inc., G.R. No. L-30381, August 30, 1988)

Action to recover unclaimed balances shall be commenced by the Solicitor General in an action for escheat in the
name of the People of the Philippines in the Regional Trial Court of the province where the bank is located, in which
shall be joined as parties the bank and such creditors or depositors. All or any member of such creditors or depositors or
17
banks, may be included in one action. Suffice it to say that Section 2(b) of Rule 4 of the Revised Rules of Court
cannot govern escheat proceedings principally because said section refers to personal actions. Escheat proceedings
are actions in rem which must be brought in the province or city where the rem in this case the dormant deposits, is
located. (REPUBLIC OF THE PHILIPPINES vs. COURT OF FIRST INSTANCE OF MANILA, G.R. No. L-30381 August 30, 1988,
FERNAN, C.J.).

A CLAIMANT TO AN ESCHEATED PROPERTY MUST FILE HIS CLAIM WITHIN FIVE (5) YEARS FROM THE
DATE OF JUDGMENT IN THE ESCHEAT PROCEEDING. THEREAFTER, SUCH PERSON SHALL HAVE POSSESSION AND
TITLE TO THE SAID ESCHEATED PROPERTIES, OR IF SOLD, THE MUNICIPALITY OR CITY SHALL BE ACCOUNTABLE
TO THE CLAIMANT FOR THE PROCEEDS, AFTER DEDUCTING CHARGES FOR THE CARE OF THE ESTATE; BUT A
CLAIM NOT MADE WITHIN THE SAID PERIOD SHALL BE BARRED FOREVER. (Republic vs. Court of Appeals [2002]).

BOND OF PARENTS AS GUARDIANS OF PROPERTY OF MINOR: In the case of guardianship over the person of
the minor child, the parents are not required to furnish a bond. In the case of guardianship over the property of the
minor child, the parents are required to furnish a bond if the market value of the property or the annual income of the
child exceeds P50,000. The parent concerned shall furnish a bond in such amount as the court may determine, but in no
case less than 10% of the value of such property or the annual income, to guarantee the performance of the obligations
prescribed for general guardians. (SECTION 16 RGM; Art. 225, Family Code). A verified petition for approval of the bond shall
be filed in the Family Court of the place where the child resides or, if the child resides in a foreign country, in the Family
Court of the place where the property or any part thereof shall be situated. The petition shall be docketed as a summary
judicial proceeding. (Id.) Hence the judgment therein shall be immediately final and executory. (Art. 247, Family Code).

THE WRIT OF HABEAS CORPUS 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 A PERSON IS BEING
WITHHELD FROM THE ONE ENTITLED THERETO. (IN THE MATTER OF THE PETITION OF HABEAS CORPUS OF EUFEMIA
E. RODRIGUEZ, FILED BY EDGARDO E. VELUZ VS. VILLANUEVA [2008]).

HABEAS CORPUS AS A POST-CONVICTION REMEDY: As a post-conviction remedy, it may be allowed when, as a

consequence of a judicial proceeding, any of the following exceptional circumstances is attendant: (1) there has been a
deprivation of a constitutional right resulting in the restraint of a person; (2) the court had no jurisdiction to impose
the sentence; or (3) the imposed penalty has been excessive, thus voiding the sentence as to such excess. (In the
Matter of the Application for the Writ of Habeas Corpus Reclassifying Sentence to R.A. NO. 8353 in Behalf of Rogelio Ormilla vs.
The Director, Bureau of Corrections [2007]).

HABEAS CORPUS IN RELATION POST-CONVICTION DNA TESTING RESULTS: Sec. 10 of the DNA Evidence
Rule (A.M. No. 06-11-5-SC, October 15, 2007) provides for the rule on the post- conviction DNA Testing results and the
remedy if favorable. It states that:“SEC. 10. Post-conviction DNA Testing. Remedy if the Results Are Favorable to the
Convict.— The convict or the prosecution may file a petition for a writ of habeas corpus in the court of origin if the
results of the post-conviction DNA testing are favorable to the convict.

In case the court, after due hearing, finds the petition to be meritorious, it shall reverse or modify the judgment of
conviction and order the release of the convict, unless continued detention is justified for a lawful cause. A similar petition
may be filed either in the Court of Appeals or the Supreme Court, or with any member of said courts, which may conduct a
hearing thereon or remand the petition to the court of origin and issue the appropriate orders.”

HABEAS CORPUS IS THE PROPER REMEDY FOR A PERSON DEPRIVED OF LIBERTY DUE TO MISTAKEN
IDENTITY. In such cases, the person is not under any lawful process and is continuously being illegally detained. A person
who is illegally arrested and detained because of a mistaken identity can avail himself of a Petition for Habeas Corpus. It is
undisputed that petitioner Salibo presented himself before the Datu Hofer Police Station to clear his name and to
prove that he is not the accused Butukan S. Malang. When petitioner Salibo was in the presence of the police officers of
Datu Hofer Police Station, he was neither committing nor attempting to commit an offense. The police officers had no
personal knowledge of any offense that he might have committed. Petitioner Salibo was also not an escapee prisoner. The
police officers, therefore, had no probable cause to arrest petitioner Salibo without a warrant. They deprived him of his right
to liberty without due process of law, for which a petition for habeas corpus may be issued. (In the Matter of Petition for
Habeas Corpus of Datukan Malang Salibo, v. Warden, Quezon City Jail, G.R. No. 197597, April 8, 2015, LEONEN)

HOLD DEPARTURE ORDER: The minor child subject of the petition shall not be brought out of the country without
prior order from the court while the petition is pending. (Sec.16) The hold departure order directing the Bureau of
Immigration and Deportation not to allow the departure of the minor from the Philippines without the permission of the
court, may be issued motu proprio or upon application under oath.

THE PETITION FOR A WRIT OF AMPARO IS A REMEDY AVAILABLE TO ANY PERSON WHOSE RIGHT TO LIFE,
LIBERTY AND SECURITY IS VIOLATED OR THREATENED WITH VIOLATION BY AN UNLAWFUL ACT OR OMISSION OF
A PUBLIC OFFICIAL OR EMPLOYEE, OR OF A PRIVATE INDIVIDUAL OR ENTITY. THE WRIT SHALL COVER
EXTRALEGAL KILLINGS AND ENFORCED DISAPPEARANCES OR THREATS THEREOF. (Section 1, A.M. No. 07-9-12-SC)

THE WRIT OF AMPARO IS NOT A WRIT TO PROTECT CONCERNS THAT ARE PURELY PROPERTY OR
COMMERCIAL. NEITHER IS IT A WRIT THAT SHALL ISSUE ON AMORPHOUS AND UNCERTAIN GROUNDS. (Tapuz vs.
Del Rosario [2008]).

WRIT OF AMPARO NOT AVAILABLE IN CASE OF DEMOLITION OF DWELLING OF SQUATTERS BY FINAL

JUDGMENT:

The threatened demolition of a dwelling by virtue of a final judgment of the court, which in this case was
affirmed with finality, is not included among the enumeration of rights as stated in the above-quoted Section 1 for
which the remedy of a writ of amparo is made available. (ARMANDO Q. CANLAS, MIGUEL D. CANLAS, MARRIETA PIA VS.
NAPICO HOMEOWNERS ASS’N - XIII, INC., ET AL. G.R. NO. 182795, JUNE 5, 2008, REYES, R.T. J.).
18
 RATHER THAN ACTS OF TERRORISM THAT POSE A CONTINUING THREAT TO THE PERSONS OF THE
PETITIONERS, THE VIOLENT INCIDENTS ALLEGED APPEAR TO BE PURELY PROPERTY-RELATED AND FOCUSED ON
THE DISPUTED LAND.

A WRIT OF AMPARO WILL NOT ISSUE IN FAVOR OF THE FR. ROBERT REYES, IF THE COURT ISSUED A HOLD
DEPARTURE ORDER AGAINST HIM AS A RESULT OF THE CRIMINAL CASE FOR REBELLION IN CONNECTION WITH
THE MANILA PENINSULA HOTEL SIEGE ON 30 NOVEMBER 2007. The rights that fall within the protective mantle of the
Writ of Amparo under Section 1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and (3) right to
security. The restriction on petitioner’s right to travel as a consequence of the pendency of the criminal case filed against him
was not unlawful.Petitioner has also failed to establish that his right to travel was impaired in the manner and to the extent
that it amounted to a serious violation of his right to life, liberty and security, for which there exists no readily available legal
recourse or remedy. (REVEREND FATHER ROBERT P. REYES VS. COURT OF APPEALS, G. R. NO. 182161, DECEMBER 3, 2009,
LEONARDO-DE CASTRO, J.)

WHO MAY FILE:

The petition may be filed by the aggrieved party or by any qualified person or entity in the following order:
(a) Any member of the immediate family, namely: the spouse, children and parents of the aggrieved party;
(b) Any ascendant, descendant or collateral relative of the aggrieved party within the fourth civil degree of
consanguinity or affinity, in default of those mentioned in the preceding paragraph; or
(c) Any concerned citizen, organization, association or institution, if there is no known member of the
immediate family or relative of the aggrieved party.

The filing of a petition by the aggrieved party suspends the right of all other authorized parties to file similar
petitions. Likewise, the filing of the petition by an authorized party on behalf of the aggrieved party suspends the right of all
others, observing the order established herein. (Sec. 2)

INSTITUTION OF SEPARATE ACTIONS. This Rule shall not preclude the filing of separate criminal, civil or
administrative actions. (Section 21, A.M. No. 07-9-12-SC)

EFFECT OF FILING OF A CRIMINAL ACTION. When a criminal action has been commenced, no separate petition
for the writ shall be filed. The reliefs under the writ shall be available by motion in the criminal case. The procedure under
this Rule shall govern the disposition of the reliefs available under the writ of amparo. (Section 22, A.M. No. 07-9-12-SC)

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 in the
petition. (Section 23, A.M. No. 07-9-12-SC)

WHERE TO FILE. The petition may be filed on any day and at any time with the Regional Trial Court of the place
where the threat, act or omission was committed or any of its elements occurred, or with the Sandiganbayan, the Court of
Appeals, the Supreme Court, or any justice of such courts. The writ shall be enforceable anywhere in the Philippines.

When issued by a Regional Trial Court or any judge thereof, the writ shall be returnable before such court or judge.

When issued by the Sandiganbayan or the Court of Appeals or any of their justices, it may be returnable before such
court or any justice thereof, or to any Regional Trial Court of the place where the threat, act or omission was committed or
any of its elements occurred.

When issued by the Supreme Court or any of its justices, it may be returnable before such Court or any justice
thereof, or before the Sandiganbayan or the Court of Appeals or any of their justices, or to any Regional Trial Court of the
place where the threat, act or omission was committed or any of its elements occurred. (Section 3, A.M. No. 07-9-12-SC)

INTERIM RELIEFS AVAILABLE TO PETITIONER AND RESPONDENT

FOR THE PETITIONER: Upon filing of the petition or at anytime before final judgment, the court, justice or judge
may grant any of the following reliefs:

(a) Temporary Protection Order

(b) Inspection Order
(c) Production Order
(d) Witness Protection Order

FOR THE RESPONDENT. Upon verified motion of the respondent and after due hearing, the court, justice or judge
may issue an inspection order or production order under paragraphs (b) and (c) of Section 14 on the Rule of the Writ of
Amparo.

A motion for inspection order shall be supported by affidavits or testimonies of witnesses having personal
knowledge of the defenses of the respondent. (Sec. 15)

19
 DOCTRINE OF TOTALITY OF EVIDENCE OR RELAXED ADMISSIBILITY OF EVIDENCE: The doctrine of totality
of evidence in amparo cases was first laid down in this Courts ruling in Razon,[94] to wit: The fair and proper rule, to our
mind, is to consider all the pieces of evidence adduced in their totality, and to consider any evidence otherwise
inadmissible under our usual rules to be admissible if it is consistent with the admissible evidence adduced. In other
words, we reduce our rules to the most basic test of reason i.e., to the relevance of the evidence to the issue at hand
and its consistency with all other pieces of adduced evidence. Thus, even hearsay evidence can be admitted if it
satisfies this basic minimum test. In the case at bar, we find no reason to depart from the factual findings of the Court of
Appeals, the same being supported by substantial evidence. A careful examination of the records of this case reveals that the
totality of the evidence adduced by Rodriguez indubitably prove the responsibility and accountability of some respondents in
G.R. No. 191805 for violating his right to life, liberty and security. (IN THE MATTER OF THE PETITION FOR THE WRIT OF
AMPARO AND HABEAS DATA IN FAVOR OF NORIEL RODRIGUEZ, s. GLORIA MACAPAGALARROYO, ET. AL., G.R. No. 191805,
November 15, 2011)

WRIT OF HABEAS DATA is an independent and summary remedy designed to protect the image, privacy, honor,
information, and freedom of information of an individual, and to provide a forum to enforce one’s right to the truth and to
informational privacy. It seeks to protect a person’s right to control information regarding oneself, particularly in instances in
which such information is being collected through unlawful means in order to achieve unlawful ends.

WHO MAY FILE: Any aggrieved party may file a petition for the writ of habeas data. However, in cases of extralegal
killings and enforced disappearances, the petition may be filed by (a) Any member of the immediate family of the
aggrieved party, namely: the spouse, children and parents; or (b) Any ascendant, descendant or collateral relative of the
aggrieved party within the fourth civil degree of consanguinity or affinity, in default of those mentioned in the
preceding paragraph. (Sec. 2)

WHERE TO FILE. The petition may be filed with the Regional Trial Court where the petitioner or respondent resides,
or that which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of
the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the
action concerns public data files of government offices. (Section 3, A.M. No. 08-1-16-SC)

AN EMPLOYEE CANNOT INVOKE THE REMEDIES AVAILABLE UNDER THE RULE ON THE WRIT OF HABEAS
DATA WHERE AN EMPLOYER DECIDES TO TRANSFER HER WORKPLACE ON THE BASIS OF COPIES OF AN
ANONYMOUS LETTER POSTED THEREIN – IMPUTING TO HER DISLOYALTY TO THE COMPANY AND CALLING FOR
HER TO LEAVE. Castillo v. Cruz, 605 SCRA 628, underscores the emphasis laid down in Tapuz v. del Rosario, 554 SCRA 768,
that the writs of amparo and habeas data will NOT issue to protect purely property or commercial concerns nor when the
grounds invoked in support of the petitions therefor are vague or doubtful. Employment constitutes a property right under
the context of the due process clause of the Constitution. It is evident that respondent’s reservations on the real reasons f or
her transfer – a legitimate concern respecting the terms and conditions of one’s employment – are what prompted her to
adopt the extraordinary remedy of habeas data. Jurisdiction over such concerns is inarguably lodged by law with the NLRC
and Labor Arbiters. (MERALCO, et.al. vs. Lim, G.R. No. 184769, October 5, 2010, J. Carpio Morales)

DR. JOY MARGARET LEE VS. P/SUPT. NERI A. ILAGAN,

October 8, 2014
PERLAS-BERNABE

FACTS: RESPONDENT DR. LEE (FORMER LIVE IN PARTNER OF THE PETITIONER) DISCOVERED IN THE
CAMERA OF THE PETITIONER P/SUPT. ILAGAN AN ALLLEGED SEX VIDEO OF THE LATTER WITH ANOTHER
WOMAN. SHE CONFRONTED THE LATTER IN HIS OFFICE. RESPONDENT FILED CRIMINAL AND ADMINISTRATIVE
COMPLAINTS AGAINST THE PETITIONER AND UTILIZED THE ALLLEGED SEX VIDEO AS EVIDENCE. SHE ALSO
REPRODUCED IT AND THREATENED TO DISTRIBUTE THE SAME TO THE UPPER ECHELONS OF THE PETITIONER IN
THE NAPOLCOM, AND EVEN UPLOAD THE SAID SEX VIDEO ON THE INTERNET. PETITIONER CLAIMS THAT
RESPONDENT’S ACTIONS VIOLATED NOT ONLY HIS RIGHT TO LIFE, LIBERTY AND SECURITY AND PRIVACY BUT
ALSO THAT OF THE OTHER WOMEN, AND THUS THE ISSUANCE A WRIT OF HABEAS DATA IS WARRANTED. SHOULD
THE COURT ISSUE THE WRIT OF HABEAS DATA IN FAVOR OF ILAGAN?

A: No. Section 6 of the Habeas Data Rule essentially requires that the petition sufficiently alleges, among others,
“[t]he manner the right to privacy is violated or threatened and how it affects the right to life, liberty or security of
the aggrieved party.”
In other words, the petition must adequately show that there exists a nexus between the right to privacy on the one
hand, and the right to life, liberty or security on the other.
Corollarily, the allegations in the petition must be supported by substantial evidence showing an actual or
threatened violation of the right to privacy in life, liberty or security of the victim.
In this relation, it bears pointing out that the writ of habeas data will not issue to protect purely property or
commercial concerns nor when the grounds invoked in support of the petitions therefor are vague and doubtful.
In this case, the Court finds that Ilagan was not able to sufficiently allege that his right to privacy in life,
liberty or security was or would be violated through the supposed reproduction and threatened dissemination of the
subject sex video.
While Ilagan purports a privacy interest in the suppression of this video – which he fears would somehow find
its way to Quiapo or be uploaded in the internet for public consumption – he failed to explain the connection
between such interest and any violation of his right to life, liberty or security.
Indeed, courts cannot speculate or contrive versions of possible transgressions. As the rules and existing
jurisprudence on the matter evoke, alleging and eventually proving the nexus between one’s privacy right to the cogent rights
to life, liberty or security are crucial in habeas data cases, so much so that a failure on either account certainly renders
a habeas data petition dismissible, as in this case.
In fact, even discounting the insufficiency of the allegations, the petition would equally be dismissible due to
the inadequacy of the evidence presented.
As the records show, all that Ilagan submitted in support of his petition was his self-serving testimony which
hardly meets the substantial evidence requirement as prescribed by the Habeas Data Rule.
20
 This is because nothing therein would indicate that Lee actually proceeded to commit any overt act towards
the end of violating Ilagan’s right to privacy in life, liberty or security.
Nor would anything on record even lead a reasonable mind to conclude that Lee was going to use the subject
video in order to achieve unlawful ends – say for instance, to spread it to the public so as to ruin Ilagan’s reputation.
Contrastingly, Lee even made it clear in her testimony that the only reason why she reproduced the subject
video was to legitimately utilize the same as evidence in the criminal and administrative cases that she filed against
Ilagan.
Hence, due to the insufficiency of the allegations as well as the glaring absence of substantial evidence, the
Court finds it proper to reverse the RTC Decision and dismiss the habeas data petition. (DR. JOY MARGARET LEE VS.
P/SUPT. NERI A. ILAGAN, October 8, 2014).

(a) The lawful defenses such as national security, state secrets, privileged communications,
confidentiality of the source of information of media and others;

INSTANCES WHEN PETITION BE HEARD IN CHAMBERS

A hearing in chambers may be conducted where the respondent invokes the defense that the release of the data or
information in question shall compromise national security or state secrets, or when the data or information cannot be
divulged to the public due to its nature or privileged character. (Sec. 12).

WRIT OF HABEAS
WRIT OF AMPARO WRIT OF HEAS DATA
CORPUS

LEGAL BASIS RULE 102 OF THE A.M. No. 07-9-12-SC A. M. No. 08-1-16-SC
REVISED RULES OF
COURT

DATE OF
July 1, 1997 October 24, 2007 February 2, 2008
EFFECTIVITY

A remedy available to
any person whose right to
A command directed privacy in life, liberty or
to the person detaining security is violated or
A remedy available to any person
another, requiring him to threatened by an unlawful act
whose right to life, liberty and security
produce the body of the or omission of a public official
is violated or threatened with violation
DEFINITION person detained at a or employee, or of a private
by an unlawful act or omission of a
designated time and place, individual or entity engaged in
public official or employee, or of a
and to produce and to show the gathering, collecting or
private individual or entity.
cause and to explain the storing of data or information
reason for detention. regarding the person, family,
home and correspondence of
the aggrieved party.

1. To all cases of violation or

1. To all cases of illegal
confinement or detention by
which any person is
SCOPE
deprived of his liberty;
disappearances or threats thereof.
2. To all cases where the
rightful custody of any
person is withheld thereto.
threat to the privacy of a
person, his family, home and
correspondence
Extralegal killings and enforced
2. To all habeas corpus and
amparo cases. (It complements
the two writs by helping
produce or correct data that is
relevant to protect the rights of
a person who disappeared or is
a victim of extrajudicial killing)

21

The most basic criterion for
the issuance of the writ,
therefore, is that the
individual seeking such
relief be illegally deprived of
his freedom of movement or
placed under some form of
WHO MAY illegal restraint. If an
FILE individual's liberty is
restrained via some legal
process, the writ of habeas
corpus is unavailing. (In Re
Reynaldo De Villa, G.R.
No. 158802, November
17, 2004)
The petition may be filed by the
aggrieved party or by any qualified
person or entity in the following order:
(a) Any member of the immediate
family, namely: the spouse, children
and parents of the aggrieved party;
(b) Any ascendant, descendant or The writ of habeas data is a
collateral relative of the aggrieved party remedy available to any
within the fourth civil degree of person whose right to
consanguinity or affinity, in default of privacy in life, liberty or
those mentioned in the preceding security is violated or
paragraph; or threatened by an unlawful
(c) Any concerned citizen, organization, act or omission of a public
association or institution, if there is no official or employee or of a
known member of the immediate family private individual or entity
or relative of the aggrieved party. engaged in the gathering,
collecting or storing of data
The exclusive and successive order or information regarding the
mandated by the above-quoted person, family, home and
provision must be followed to prevent correspondence of the
the indiscriminate and groundless filing aggrieved party.
of petitions for amparo which may even
prejudice the right to life, liberty or
security of the aggrieved party." (Boac,
Et.Al. vs.. Cadapan & Empeno, G.R.
Nos. 184461-62 , May 31, 2011)

1. RTC where the petitioner or

respondent resides, or that
1. Regional Trial Court which has jurisdiction over the
1. RTC of the place where the threat, act
place where the data or
or omission was committed or any of its
2. Court of Appeals or any information is gathered,
WHERE TO elements occurred.
member thereof collected or stored, at the
FILE
option of the petitioner.
2. Sandiganbayan,
3. Supreme Court or any
3. CA or any of its Justices
member thereof 2. SC or the CA or the
4. SC or any of its Justices
Sandiganbayan when the
action concerns public data
files of government offices.

Within 5 working days from

WHEN TO -NOTHING IS STATED IN Within 72 hours after service of the service of the writ, with
FILE THE RULE- writ, with supporting affidavit supporting affidavit (may be
extended by the Court for
justifiable reasons)

PUNISHMENT Forfeit to the party

FOR REFUSAL aggrieved the sum of one Imprisonment or Fine for
OR FILING OF thousand pesos (P1000) or Imprisonment or Fine for Contempt Contempt
FALSE have the party failing to file
RETURN the return be cited for
Contempt.

RULES OF PROCEDURE FOR ENVIRONMENTAL CASE

(A.M. NO. 09-6-8-SC)
ISSUANCE OF TEMPORARY ENVIRONMENTAL PROTECTION ORDER (TEPO):

If it appears from the verified complaint with a prayer for the issuance of an Environmental Protection Order
(EPO) that the matter is of extreme urgency and the applicant will suffer grave injustice and irreparable injury, the executive
judge of the multiple-sala court before raffle or the presiding judge of a single-sala court as the case may be, may issue
22
ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of the TEPO by the party or person
enjoined.

Within said period, the court where the case is assigned, shall conduct a summary hearing to determine whether the
TEPO may be extended until the termination of the case.

The court where the case is assigned, shall periodically monitor the existence of acts that are the subject
matter of the TEPO even if issued by the executive judge, and may lift the same at any time as circumstances may
warrant.

BOND: The applicant shall be exempted from the posting of a bond for the issuance of a TEPO. (Section 8 of
Rule 2, A.M. No. 09-6-8-SC also known as Rules of Procedure for Environmental Cases)

DISSOLUTION: (ACTION FOR DISSOLUTION OF TEPO)

The grounds for motion to dissolve a TEPO shall be supported by affidavits of the party or person enjoined which
the applicant may oppose, also by affidavits.

The TEPO may be dissolved if it appears after hearing that its issuance or continuance would cause irreparable
damage to the party or person enjoined while the applicant may be fully compensated for such damages as he may suffer
and subject to the posting of a sufficient bond by the party or person enjoined. (Section 9 of Rule 2, A.M. No. 09-6-8-SC also
known as Rules of Procedure for Environmental Cases)

PROHIBITION AGAINST TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION: Except the
Supreme Court, no court can issue a TRO or writ of preliminary injunction against lawful actions of government agencies
that enforce environmental laws or prevent violations thereof. (Section 10 of Rule 2, A.M. No. 09-6-8-SC also known as Rules
of Procedure for Environmental Cases)

“CONSENT DECREE: A CONSENT DECREE REFERS TO A JUDICIALLY-APPROVED SETTLEMENT BETWEEN

CONCERNED PARTIES BASED ON PUBLIC INTEREST AND PUBLIC POLICY TO PROTECT AND PRESERVE THE
ENVIRONMENT.

WRIT OF CONTINUING MANDAMUS:

When any agency or instrumentality of the government or officer thereof unlawfully neglects the performance of an
act which the law specifically enjoins as a duty resulting from an office, trust or station in connection with the enforcement or
violation of an environmental law rule or regulation or a right therein, or unlawfully excludes another from the use or
enjoyment of such right and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person
aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty, attaching thereto
supporting evidence, specifying that the petition concerns an environmental law, rule or regulation, and praying that
judgment be rendered commanding the respondent to do an act or series of acts until the judgment is fully satisfied,
and to pay damages sustained by the petitioner by reason of the malicious neglect to perform the duties of the
respondent, under the law, rules or regulations. The petition shall also contain a sworn certification of non-forum shopping.
(Section 1 of Rule 8, A.M. No. 09-6-8-SC also known as Rules of Procedure for Environmental Cases)

WRIT OF CONTINUING MANDAMUS: A SPECIAL CIVIL ACTION UNDER THE RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES THAT MAY BE AVAILED OF TO COMPEL THE PERFORMANCE OF AN ACT SPECIFICALLY
ENJOINED BY LAW AND WHICH PROVIDES FOR THE ISSUANCE OF A TEPO AS AN AUXILIARY REMEDY PRIOR TO
THE ISSUANCE OF THE WRIT ITSELF.

The Rationale of the said Rules explains the writ in this wise: “Thus, a government agency’s inaction, if any, has
serious implications on the future of environmental law enforcement. Private individuals, to the extent that they seek to
change the scope of the regulatory process, will have to rely on such agencies to take the initial incentives, which may require
a judicial component.

Accordingly, questions regarding the propriety of an agency’s action or inaction will need to be analysed. This point is
emphasized in the availability of the remedy of the writ of mandamus, which allows for the enforcement of the conduct of the
tasks to which the writ pertains: the performance of a legal duty. (Boracay Foundation, Inc. vs. Province of Aklan, et.al.,
G.R. No. 196870, June 26, 2012, J. Leonardo-De Castro)

THE WRIT OF CONTINUING MANDAMUS PERMITS THE COURT TO RETAIN JURISDICTION AFTER JUDGMENT
IN ORDER TO ENSURE THE SUCCESSFUL IMPLEMENTATION OF THE RELIEFS MANDATED UNDER THE COURTS
DECISION AND, IN ORDER TO DO THIS, THE COURT MAY COMPEL THE SUBMISSION OF COMPLIANCE REPORTS
FROM THE RESPONDENT AGENCIES AS WELL AS AVAIL OF OTHER MEANS TO MONITOR COMPLIANCE WITH ITS
DECISION. (Boracay Foundation, Inc. vs. Province of Aklan, et.al., G.R. No. 196870, June 26, 2012, J. Leonardo-De Castro)

STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (SLAPP)

A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse that any person,
institution or the government has taken or may take in the enforcement of environmental laws, protection of the
environment or assertion of environmental rights shall be treated as a SLAPP and shall be governed by these Rules.
(Section 1 of Rule 6, A.M. No. 09-6-8-SC also known as Rules of Procedure for Environmental Cases)

23
 Writ of continuing mandamus
Subject matter Directed against:
(1) 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
Writ of Kalikasan
Available against an unlawful act or omission
of a public official or employee, or private
individual or entity, involving environmental
damage of such magnitude as to prejudice
the life, health or property of inhabitants
in two or more cities or provinces

(2) the unlawful exclusion of another from

the use or enjoyment of such right and in
both instances, there is no other plain,
speedy or adequate remedy in the
ordinary course of law.

WRIT OF KALIKASAN: The Writ of Kalikasan is a remedy available to a natural or juridical person, entity authorized
by law, people’s organization, non-governmental organization, or any public interest group accredited by or registered with
any government agency, on behalf of persons whose constitutional right to a balanced and healthful ecology is violated, or
threatened with violation by an unlawful act or omission of a public official or employee, or private individual or entity,
involving environmental damage of such magnitude as to prejudice the life, health or property of inhabitants in two or more
cities or provinces (Section 1 of Rule 7, A.M. No. 09-6-8-SC also known as Rules of Procedure for Environmental Cases).

The following reliefs may be included under the writ of kalikasan: (a) Directing respondent to permanently cease and
desist from committing acts or neglecting the performance of a duty in violation of environmental laws resulting in
environmental destruction or damage; (b) Directing the respondent public official, government agency, private person or
entity to protect, preserve, rehabilitate or restore the environment; (c) Directing the respondent public official, governmen t
agency, private person or entity to monitor strict compliance with the decision and orders of the court; (d) Directing the
respondent public official, government agency, or private person or entity to make periodic reports on the execution of the
final judgment; and (e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the
protection, preservation, rehabilitation or restoration of the environment, except the award of damages to individual
petitioners. (Sec. 15, Rule 7, Ibid.)

The rules also provide interim reliefs in favor of the petitioner upon filing a verified motion, namely: (i) Ocular
inspection; or (ii) Production or inspection of documents or things (Sec. 12, Rule 7, A.M. No. 09-6-8-SC also known as Rules of
Procedure for Environmental Cases).

Moreover, the petition for writ of kalikasan is more advantageous compared to a complaint for damages before the
RTC because it may be filed directly with the Supreme Court or with any of the stations of the Court of Appeals.

Unlike a complaint for damages before the RTC which can only be filed by a real-party-in-interest as defined in Rule
3(2) of the Rules of Court, the rule on locus standing is relaxed in petitions for writ of kalikasan which allows the petition to
be filed by parties as citizen suit.

In addition, any of the following may file a petition for writ of kalikasan: (a) natural or juridical person; (b) entity
authorized by law; or (c) POs, NGOs or any public interest group accredited by or registered with any government agency on
behalf of persons whose constitutional right to a balanced and healthful ecology is violated (Sec. 1, Rule 7, A.M. No. 09-6-8-SC
7).

The petition for writ of kalikasan is exempted from the payment of docket fees.

The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of separate civil, criminal
or administrative actions. Thus, the organization can later file a complaint for damages with the Regional Trial Court, should
they desire to do so.

At any rate, the rules provide that judgment must be rendered within sixty (60) days from the time the petition is
submitted for decision which expedites the proceedings significantly considering the urgency of situation the in the instant
case.

JUSTICE MAGDANGAL DE LEON: SPECIAL PROCEEDINGS

Rule 103 Rule 108 R.A. 9048

Rule or Law Change of Name Cancellation/ Correction Clerical Error Act
of Entries in the Civil
Registry
Subject Matter Change of full name or Cancellation or Change of first name or nickname and
family name (substantial correction of civil registry corrrection of civil registry entries (only
corrections) entries (substantial typographical or clerical errors)
corrections)
Who may File A person desiring to change Any person interested in Any person having direct and personal
his name. (Section 1) any act, event, order or interest in the correction of a clerical or
decree concerning the typographical error in an entry and/or
civil status of persons change of first name or nickname. (Section
which has been recorded 3)
24

Venue RTC of the province in which RTC of city or province
petitioner resided for 3 years where the corresponding municipality where the record being sought
prior to filing. civil registry is located. to be corrected or changed is kept;
Contents of petition (a) That petitioner has been a
bona fide resident of the
province where the petition
is filed for at least three (3)
years prior to the date of
such filing;
(b) The cause for which the
change of petitioner's name
is sought;
(c) The name asked for.
(Section 2)
Grounds 1. Name is ridiculous,
tainted with dishonor and
extremely difficult to write of
pronounce;
2. Consequence of change of
status;
3. Necessity to avoid
confusion;
4. Having continuously used
and been known since
childhood by a Filipino
name, unaware of her alien
parentage;
5. A sincere desire to adopt a
Filipino name to erase signs
of former alienage all in good
faith and without prejudicing
anybody.
Kind of proceeding Judicial Proceeding
What to file File a signed and verified
petition.
Notice and At least once a week for
Publication three consecutive weeks in a
newspaper circulation (notice
of hearing)
in the civil register.
(Section 1)
1. Local civil registry office of the city or
2. Local civil registrar of the place where
the interested party is presently residing or
domiciled;
3. Philippine Consulate
(a) Facts necessary to establish the merits
of petition;
(b) Particular erroneous entry or entries,
which are sought to be corrected and/or
the change sought to be made.
Petition shall be supported by the following
documents:
(1) A certified true machine copy of the
certificate or of the page of the registry
book containing the entry or entries sought
to be corrected or changed;
(2) At least two (2) public or private
documents showing the correct entry or
entries upon which the correction or
change shall be based; and
(3) Other documents which petitioner or
the city or municipal civil registrar or the
consul general may consider relevant and
necessary for the approval of petition.
(Section 5)
Upon good and valid 1. Petitioner finds the first name or
grounds. nickname to be ridiculous, tainted with
dishonor or extremely difficult to write or
pronounce;
2. The new first name or nickname has
been habitually and continuously used by
petitioner and he has been publicly known
by that first name or nickname in the
community; or
3. The change will avoid confusion.
(Section 4)
Judicial Proceeding Administrative Proceeding
Adversarial in nature
because involves
substantial changes and
affects the status of an
individual
File a verified petition for File an affidavit.
the cancellation or
correction of any entry.
At least once a week for At least once a week for two consecutive
three consecutive weeks weeks (publish the whole affidavit) – in
in a newspaper of change of first name or nickname
general circulation
(notice of hearing)
25
Posting No posting
Who participates on The Solicitor General or the
the part of the proper provincial or city
Government fiscal shall appear on behalf
of the Government of the
Republic.
Where to appeal: Appeal decision to the Court
of Appeals.
No posting Duty of the civil registrar or Consul to post
petition in a conspicuous place for 10
consecutive days
The Civil Registrar. The CivilRegistrar or Consul.
Appeal decision to the Appeal decision to the Civil Registrar
Court of Appeals. General (head of NCSO).

Grounds for change of name:

1) Name is ridiculous, dishonorable, or extremely difficult to write or pronounce;
2) Change results as a legal consequence, as in legitimation;
3) Change will avoid confusion;
4) When one has continuously used and been known since childhood by a Filipino name, and was unaware of alien
parentage;
5) Sincere desire to adopt Filipino name to erase signs of former alienage, all in good faith and without prejudicing
anybody;
6) Surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent
purpose or that the change of name would prejudice public interest.

REPUBLIC ACT NO. 10172]

“SECTION 1. Authority to Correct Clerical or Typographical Error and Change of First Name or Nickname. –
No entry in a civil register shall be changed or corrected without a judicial order, except for 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. 2. Section 2, paragraph (3) of the Act is likewise amended to read as follows:

“SEC. 2. Definition of Terms. – As used in this Act, the following terms shall mean:
(1) xxx xxx
(2) xxx xxx

(3) ‘Clerical or typographical error’ refers to a mistake committed in the performance of clerical work in
writing, copying, transcribing or typing an entry in the civil register that is harmless and innocuous, such as misspelled
name or misspelled place of birth, mistake in the entry of day and month in the date of birth or the sex of the person
or the like, which is visible to the eyes or obvious to the understanding, and can be corrected or changed only by
reference to other existing record or records: Provided, however, That no correction must involve the change of nationality,
age, or status of the petitioner.”

“SEC. 5. Form and Contents of the Petition. – The petition for correction of a clerical or typographical error, or
for change of first name or nickname, as the case may be, shall be in the form of an affidavit, subscribed and sworn to
before any person authorized by law to administer oaths.

The affidavit shall set forth facts necessary to establish the merits of the petition and shall show affirmatively that
the petitioner is competent to testify to the matters stated.

The petitioner shall state the particular erroneous entry or entries, which are sought to be corrected and/or the
change sought to be made.

The petition shall be supported with the following documents:

(1) A certified true machine copy of the certificate or of the page of the registry book containing the entry or
entries sought to be corrected or changed;

(2) At least two (2) public or private documents showing the correct entry or entries upon which the correction or
change shall be based; and

(3) Other documents which the petitioner or the city or municipal civil registrar or the consul general may
consider relevant and necessary for the approval of the petition.

No petition for correction of erroneous entry concerning the date of birth or the sex of a person shall be entertained
except if the petition is accompanied by earliest school record or earliest school documents such as, but not limited to,
medical records, baptismal certificate and other documents issued by religious authorities; nor shall any entry involving
change of gender corrected except if the petition is accompanied by a certification issued by an accredited government
physician attesting to the fact that the petitioner has not undergone sex change or sex transplant.

The petition for change of first name or nickname, or for correction of erroneous entry concerning the day and month
in the date of birth or the sex of a person, as the case may be, shall be published at least once a week for two (2) consecutive
weeks in a newspaper of general circulation.

26
 Furthermore, the petitioner shall submit a certification from the appropriate law enforcements, agencies that he has
no pending case or no criminal record.

The petition and its supporting papers shall be filed in three (3) copies to be distributed as follows: first copy to the
concerned city or municipal civil registrar, or the consul general; second copy to the Office of the Civil Registrar General; and
third copy to the petitioner.”
Approved: AUGUST 15, 2012

CRIMINAL PROCEDURE
RIGHT AGAINST UNREASONABLE SERCHES AND SEIZURES: The right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose
shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce,
and particularly describing the place to be searched and the persons or things to be seized. (Article 3, Section 2, 1987
Constitution)

Q: May a confession of the accused given to the barangay chairman, without assistance of counsel, be
used as evidence against him? Is the barangay chairman a law enforcement officer?

A: No. To be admissible in evidence against the accused, the extrajudicial confession must satisfy the following
requirements: 1. It must be voluntary; 2. It must be made with the assistance of competent and independent counsel; It must
be express; It must be in writing. Barangay Tanods, including Barangay Chairman, may be deemed as law enforcement
officers for the purpose of applying Art. III Sec 12 (1) and (3) of the Constitution. Thus the confession of the accused to the
Barangay Chairman is inadmissible in evidence as such was obtained in violation of his constitutional rights (People v
Malingan 503 SCRA 294 (September 26, 2006))

WARRANTLESS ARREST: INSTANCES WHEN A PERSON MAY BE ARRESTED WITHOUT A WARRANT: A peace
officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; (b) When an offense has just been committed and
he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place
where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another. (Sec. 5, Rule 113 of the Rules on Criminal Procedure)

PRIOR JUSTIFICATION FOR INTRUSION OR PRIOR LAWFUL INTRUSION IS NOT AN `ELEMENT OF AN

ARREST IN FLAGRANTE DELICTO: Thus, even granting arguendo that the apprehending officers had no legal right to be
present in the dwelling of Sultan, it would not render unlawful the arrest of Ambre, who was seen sniffing shabu with Castro
and Mendoza in a pot session by the police officers. Accordingly, PO2 Masi and PO1 Mateo were not only authorized but were
also duty-bound to arrest Ambre together with Castro and Mendoza for illegal use of methamphetamine hydrochloride in
violation of Section 15, Article II of R.A. No. 9165. (Ambre v. People, August 15, 2012).

A. ARREST IN FLAGRANTE DELICTO: Section 5(a) is what is known as arrest in flagrante delicto. For this
type of warrantless arrest to be valid, two requisites must concur: "(1) 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, (2) such overt
act is done in the presence or within the view of the arresting officer. A common example of an arrest in flagrante
delicto is one made after conducting a buy-bust operation. (People vs. Marcelino Collado, G.R. No. 185719, June 17, 2013)

B. HOT PURSUIT: FOR THE WARRANTLESS ARREST UNDER SECTION 5 (B) RULE 113 OF THE
RULES OF CRIMINAL PROCEDURE TO BE VALID, TWO REQUISITES MUST CONCUR: (1) the offender has just committed
an offense (close proximity or immediacy between the arrest and the time of commission of the crime); and (2) the
arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has
committed it.

SEARCH WARRANT DISTINGUISH FROM WARRANT OF ARREST:

(1) Warrant of arrest is an order directed to the peace officer to execute the warrant by taking the person stated
therein into custody that he may be bound to answer for the commission of the offense. Search Warrant is an Order in
writing in the name of the Republic of the Philippines signed by the judge and directed to the peace officer to search personal
property described therein and to bring it bring it to court. (Sec.1, Rule 126, Rules of Court); (2) Warrant of arrest does not
become stale. Search Warrant is valid for 10 days only (Sec. 9, Rule 126, Rules of Court); (3) Warrant of arrest may be
served on any day and at any time of day or night (Sec. 6, Rule 113, Rules of Court). Search warrant is to be served only in
daytime unless the affidavit alleges that the property is on the person or in the the place to be searched. (Sec. 9, Rule 126,
Rules of Court); (4) In issuing warrant of arrest, searching examination of witnesses is not necessary. In search warrant,
the judge must personally conduct an examination of the complainant and the witnesses; (5) In issuing warrant of arrest,
the judge is merely called upon to examine and evaluate the report of the fiscal and the evidence. In search warrant, the
examination by the judge must be probing. Not enough to merely adopt the questions and answers asked by a previous
investigator.

HUMAN REMAINS CAN BE A SUBJECT OF A SEARCH WARRANT: "Personal property" in the foregoing context actually
refers to the thing’s mobility, and not to its capacity to be owned or alienated by a particular person. Article416 of the Civil
Code,54 which Laud himself cites, states that in general, all things which can be transported from place to place are deemed
to be personal property. Considering that human remains can generally be transported from place to place, and considering
further that they qualify under the phrase "subject of the offense" given that they prove the crime’s corpus delicti, it follows
that they may be valid subjects of a search warrant under the above-cited criminal procedure provision. (RETIRED SP04
BIENVENIDO LAUD vs.PEOPLE OF THE PHILIPPINES, G.R. No. 199032, November 19, 2014)

27
 Q: Can a Municipal Trial Court (MTC) issue a search warrant involving an offense in which it has no
jurisdiction?
A: YES. A search warrant may be issued by any court pursuant to Section 2, Rule 126 of the Rules of Court
and the resultant case may be filed in another court that has jurisdiction over the offense committed. What controls
here is that a search warrant is merely a process, generally issued by a court in the exercise of its ancillary
jurisdiction, and not a criminal action to be entertained by a court pursuant to its original jurisdiction. Thus, in certain
cases when no criminal action has yet been filed, any court may issue a search warrant even though it has no
jurisdiction over the offense allegedly committed, provided that all the requirements for the issuance of such
warrant are present. In this case, the application for search warrant was applied within the same judicial region
where the crime was allegedly committed. For compelling reasons, the MTC of Gattaran Cagayan has the authority to
issue search warrant and seize the dangerous drugs stated in the application thereof in Appari Cagayan, a place that
is the within the same judicial region. (PEOPLE v. CASTILLO, ET. AL., G.R. No. 204419, November 7, 2016)
WHEN IS BAIL A MATTER OF RIGHT: All persons in custody shall be admitted to bail as a matter of right, with
sufficient sureties, or released on recognize as prescribed by law or this Rule (a) before or after conviction by the
Metropolitan Trial Court, Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and
(b) before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life
imprisonment.

NOTE: After conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua
or life imprisonment, bail is a matter of discretion (Sections 4 and 5, Rule 114, Rules of Court).

WHEN IS BAIL DISCRETIONARY: Upon conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment, admission to bail is discretionary. The application for bail may be filed and
acted upon by the trial court despite the filing of a notice of appeal, provided it has not transmitted the original record to the
appellate court. However, if the decision of the trial court convicting the accused changed the nature of the offense from non-
bailable to bailable, the application for bail can only be filed with and resolved by the appellate court. Should the court grant
the application, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the
same bail subject to the consent of the bondsman. If the penalty imposed by the trial court is imprisonment exceeding six
(6) years, the accused shall be denied bail, or his bail shall be cancelled upon a showing by the prosecution, with notice to
the accused, of the following or other similar circumstances: (a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the circumstance of reiteration; (b) That he has previously escaped
from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification; (c) That he
committed the offense while under probation, parole, or conditional pardon; (d) That the circumstances of his case indicate
the probability of flight if released on bail; or (e) That there is undue risk that he may commit another crime during the
pendency of the appeal. The appellate court may, motu proprio or on motion of any party, review the resolution of the Regional
Trial Court after notice to the adverse party in either case. (5a)

DOJ ORDER NO. 41 IS UNCONSTITUTIONAL BECAUSE RULE MAKING POWER IS EXCLUSIVE TO THE SUPREME
COURT. THUS, THE SECRETARY OF JUSTICE HAS NO AUTHORITY TO ISSUE HOLD DEPARTURE ORDERS, WATCH LIST
ORDERS AND ALLOW DEPARTURE ORDERS. IN ADDITION, DOJ CIRCULAR NO. 41 IS UNCONSTITUTIONAL BECAUSE IT
IS VIOLATIVE OF THE RIGHT TO TRAVEL. THE RIGHT TO TRAVEL MAY BE RESTRICTED ONLY BASED ON GROUNDS OF
NATIONAL SECURITY, PUBLIC SAFETY, AND PUBLIC HEALTH AS MAY BE PROVIDED BY LAW. NONETHELESS, DOJ
CIRCULAR NO. 41 IS NOT A LAW. (GENUINO V. DE LIMA, APRIL 17, 2018)

A.M. No. 18-07-05-SC Rule on Precautionary Hold Departure Order

Section 1. PRECAUTIONARY HOLD DEPARTURE ORDER – is an order in writing issued by a court commanding the Bureau
of Immigration to prevent any attempt by a person suspected of a crime to depart from the Philippines, which shall be issued
ex-parte in cases involving crimes where the minimum penalty prescribed by law is at least six (6) years and one (1) day or
when the offender is a foreigner regardless of the imposable penalty.

Section 2. WHERE FILED – The application for a precautionary hold departure order may be filed by a prosecutor with any
regional trial court within those territorial jurisdiction the alleged crime was committed: Provided, that for compelling
reasons, it can be filed with any regional trial court within the judicial region where the crime was committed if the place of
the commission of the crime is known; Provided, further, that the regional trial courts in the City of Manila, Quezon City,
Cebu City Iloilo City, Davao City and Cagayan De Oro City shall also have the authority to act on applications filed by the
prosecutor based on complaints instituted by the National Bureau of Investigation, regardless where the alleged crime was
committed..

Section 4. GROUNDS FOR ISSUANCE- A precautionary departure order shall not issue except upon determination by the
judge, in whose court the application is filed, that probable cause exists, and there is high probability that the respondent
will depart from the Philippines to evade arrest and prosecution of a crime against him or her. The judge shall personally
examine under oath or affirmation, in the form of searching questions and answers in writing, the applicant and the
witnesses he or she may produce on facts personally known to them and attaching to the record their sworn statements.

If the judge finds that probable cause exists and there is a high probability that the respondent will depart, he or she shall
issue the PHDO and direct the Bureau of Immigration to hold and prevent the departure of respondent at any Philippine
airport or ports. Otherwise, the judge shall order the dismissal of the application.

Section 5. PRELIMINARY FINDING OF PROBABLE CAUSE- Since the finding of probable cause by the judge is solely based
on the complaint and is specifically issued for the purpose of issuing the PHDO, the same shall be without prejudice to the
resolution of the prosecutor of the criminal complaint considering the complaint-affidavit, counter-affidavit, reply-affidavit,
and the evidence presented by both parties during the preliminary investigation. If the prosecutor after preliminary
investigation dismisses the criminal complaint for lack of probable cause then the respondent may use the dismissal as a
ground for the lifting of the PHDO with the regional trial court that issued the order. If the prosecutor finds probable cause

28
and files the criminal information, the case with the court that issued the PHDO, on motion of the prosecutor shall be
consolidated with the court where the criminal information is filed.

Section 6. FORM AND VALIDITY OF THE PRECAUTIONARY HOLD DEPARTURE ORDER- The precautionary hold
departure order shall indicate the name of the respondent, his or her alleged crime, the time and place of its commission, and
the name of the complainant. A copy of the application, personal details, passport number, photograph of the respondent, if
available, shall be appended to the order. The order shall be valid until lifted by the issuing court as may be warranted by the
result of the preliminary investigation. The court shall furnish the Bureau of Immigration with a duly certified copy of the
hold departure order within twenty-four (24) hours from issuance.

Section 7. LIFTING OF THE ORDER- The respondent may file a verified motion before the issuing court for the temporary
lifting of PHDO on meritorious ground; that, based on the complaint-affidavit and the evidence that he or she will present,
there is doubt that probable cause exists to issue the PHDO or it is shown that he or she is not a flight risk: Provided, that
the respondent posts a bond; Provided, further, that the lifting of the PHDO is without prejudice to the resolution of the
preliminary investigation against the respondent.

Section 8. BOND- Respondent may ask the issuing court to allow him or her to leave the country upon posting of a bond in
an amount to be determined by the court subject to the conditions set forth in the Order granting the temporary lifting of the
PHDO.

FOUR (4) KINDS OF PROBABLE CAUSE: In the Philippines, there are four instances in the Revised Rules of
Criminal Procedure where probable cause is needed to be established:
(i) In Sections 1 and 3 of Rule 112: By the investigating officer, 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. A preliminary investigation is required before the filing of a complaint or information for an offense where the
penalty prescribed by law is at least four years, two months and one day without regard to the fine;
(ii) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a commitment
order, if the accused has already been arrested, shall be issued and that there is a necessity of placing the respondent under
immediate custody in order not to frustrate the ends of justice;
(iii) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an
offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
(iv) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only upon
probable cause in connection with one specific offense to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched
and the things to be seized which may be anywhere in the Philippines. In all these instances, the evidence necessary to
establish probable cause is based only on the likelihood, or probability, of guilt. (SENATOR JINGGOY EJERCITO ESTRADA VS.
OMBUDSMAN [2015]).

PROBABLE CAUSE CAN BE ESTABLISHED WITH HEARSAY EVIDENCE, AS LONG AS THERE IS SUBSTANTIAL
BASIS FOR CREDITING THE HEARSAY. Hearsay evidence is admissible in determining probable cause in a preliminary
investigation because such investigation is merely preliminary, and does not finally adjudicate rights and obligations of
parties. However, in administrative cases, where rights and obligations are finally adjudicated, what is required is
“substantial evidence” which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as
substantial evidence because substantial evidence excludes hearsay evidence while substantial basis can include
hearsay evidence. (SENATOR JINGGOY EJERCITO ESTRADA VS. OMBUDSMAN [2015]).

Q: What is the prevailing rule on appeals process in the National Prosecution Service with regard to
complaints subject of preliminary investigation?
A: (a) If the complaint is filed outside the NCR and is cognizable by the MTCs/MeTCs/MCTCs, the
ruling of the OPP may be appealable by way of petition for review before the ORSP, which ruling shall be with finality;
(b) If the complaint is filed outside the NCR and is not cognizable by the MTCs/MeTCs/MCTCs, the ruling
of the OPP may be appealable by way of petition for review before SOJ, which ruling shall be with finality;
(c) If the complaint is filed within the NCR and is cognizable by the MTCs/MeTCs/MCTCs, the ruling of the
OCP may be appealable by way of petition for review before the Prosecutor General, whose ruling shall be with finality;
(d) If the complaint is filed within the NCR and is not cognizable by the MTCs/MeTCs/MCTCs, the ruling of
the OCP may be appealable by way of petition for review before the SOJ, whose ruling shall be with finality;
(e) Provided, that in instances covered by (a) and (c ), the SOJ may, pursuant to his power of control and
supervision over the entire National Prosecution Service, review, modify, or reverse the ruling of the ORSP or the
Prosecutor General, as the case may be. (CARIAGA vs. SAPIGAO G.R. No. 223844; June 28, 2017, PERLAS-BERNABE)

WHEN A PERSON IS LAWFULLY ARRESTED WITHOUT A WARRANT INVOLVING AN OFFENSE WHICH

REQUIRES A PRELIMINARY INVESTIGATION, THE COMPLAINT OR INFORMATION MAY BE FILED BY A PROSECUTOR
WITHOUT NEED OF SUCH INVESTIGATION PROVIDED AN INQUEST HAS BEEN CONDUCTED IN ACCORDANCE WITH
EXISTING RULES. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended
party or a peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or
person. Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended,
in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated
within fifteen (15) days from its inception.After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his defense as provided in this Rule. (Section 6, Rule 112)

29
 DE LIMA VS. GUERRERO
OCTOBER 10, 2017

Q: SECTION 90 OF R.A. 9165 VS. SECTION 4 (b) OF P.D. 1606 (SANDIGANBAYAN LAW)
A: RTC HAS JURISDICTION. SECTION 90 OF R.A. 9165 WHICH CONFERS TO THE REGIONAL TRIAL COURT
ORIGINAL JURISDICTION OVER DRUGS CASES WILL PREVAIL OVER SECTION 4(b) BECAUSE THE FORMER IS A
SPECIAL LAW THAT WILL PREVAIL OVER A GENERAL LAW. EVEN IF THE ILLEGAL DRUG TRADING WERE OFFICE-
RELATED, IT IS THE REGIONAL TRIAL COURT NOT THE SANDIGANBAYAN THAT HAS JURISDICTION OVER THE
CHARGES AGAINST THE ACCUSED.

D. JURISDICTION OF SANDIGANBAYAN: The Sandiganbayan has exclusive original jurisdiction over the
following cases (see PD 1606, R.A. No. 7975, and R.A. No. 8249):

1. Violation of RA 3019 (Anti-Graft and Corrupt Practices), RA 1379 (unlawfully acquired property), and the
Revised Penal Code (Book II, Title VII, Chapter II, Section 2), where one of the accused is an official occupying the
following positions (permanent or interim) at the time of the commission of the offense:

(1) 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:
a) Provincial governors, vice-governors, members of the Sangguniang Panlalawigan and provincial treasurers,
assessors, engineers and other provincial department heads;
(b) City mayors, vice-mayors, members of the Sangguniang Panlungsod, city treasurers, assessors, engineers and
other city department heads;
(c) Officials of the diplomatic service occupying the position of consul and higher;
(d) Philippine army and air force colonels, naval captains, and all officers of higher rank;
(e) Officers of the Philippine National Police while occupying the position of provincial director and those holding the
rank of senior superintendent or higher;
(f) City and provincial prosecutors and their assistants, and officials and prosecutors in the Office of the Ombudsman
and special prosecutor;
(g) Presidents, directors or trustees, or managers of government-owned or -controlled corporations, state universities
or educational institutions or foundations;

(2) Members of Congress and officials thereof classified as Grade '27' and up under the Compensation and
Position Classification Act of 1989;
(3) Members of the judiciary without prejudice to the provisions of the Constitution;
(4) Chairmen and members of Constitutional Commissions, without prejudice to the provisions of the
Constitution; and
(5) All other national and local officials classified as Grade '27' and higher under the Compensation and
Position Classification Act of 1989.

2. Other offenses or felonies, whether simple or complexed with other crimes, committed by the
abovementioned public officials and employees mentioned in relation to their office.

REQUISITES: (a) accused is a public official under subsection (a), Section 4 of RA8249, Grade 27 or higher; (b)
accused commits any other offense or felony than those in subsection (a), whether simple or complexed with other crimes,
and commits it in relation to his office.

3. Civil and criminal cases filed pursuant to and in connection with Executive Order Nos. 1, 2, 14 and
14-A, issued in 1986. 23

NOTES:

1. In cases where none of the of the accused are occupying positions corresponding to Salary Grade 27 or
higher, or Military or PNP officers mentioned above, exclusive original jurisdiction thereof shall be vested in the proper
RTC or MTC as the case may be, under B.P. 129.

2. Please note that the officials enumerated in Section (4) (A) (i) of R.A. No. 8249, i.e. members of the
Sangguniang Panlungsod, city treasurers, assessors, etc., are subject to the jurisdiction of the Sandiganbayan
regardless of salary grade (Inding v. Sandiganbayan, 434 SCRA 388). Thus, if the accused does not belong to the national
and local officials enumerated, in order for the Sandiganbayan to acquire jurisdiction over the offense, the same must be
committed by officials classified as Grade 27 and higher, aside from other officials, expressly covered. Instructive is the ruling
of the Court in Inding: “Clearly, therefore, Congress intended these officials regardless of their salary grades, to be specifically
included within the Sandiganbayan's original jurisdiction, for had it been otherwise, then there would have been no need for
such enumeration (italics supplied). x x x x "This conclusion is further bolstered by the fact that some of the officials
enumerated in "a" to "g" are not classified as SG 27 or higher under the x x x Position Titles and Salary Grades of the
Department of Budget and Management x x x."

Note: Amendment introduced by R.A. 10660 which took effect on May 5, 2015:

“Provided, That the Regional Trial Court shall have exclusive original jurisdiction where the
information:

(a) does not allege any damage to the government or any bribery; or
(b) alleges damage to the government or bribery arising from the same or closely related
transactions or acts in an amount not exceeding One million pesos (P1,000,000.00).

30
 “Subject to the rules promulgated by the Supreme Court, the cases falling under the jurisdiction
of the Regional Trial Court under this section shall be tried in a judicial region other than where the
official holds office.
“In cases where none of the accused are occupying positions corresponding to Salary Grade ’27’ or higher, as
prescribed in the said Republic Act No. 6758, or military and PNP officers mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional trial court, metropolitan trial court, municipal trial court, and
municipal circuit trial court, as the case may be, pursuant to their respective jurisdictions as provided in Batas Pambansa
Blg. 129, as amended."

PREVENTIVE SUSPENSION

Sec. 24. Preventive Suspension. – “The Ombudsman or his deputy may preventively suspend any officer or
employee under his authority pending an investigation. If in his judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; (b) the charges would warrant removal from the service; or (c) the respondent’s continued stay
in office may prejudice the case filed against him. The preventive suspension shall continue until the case is terminated
by the Office of the Ombudsman but not more than six months, without pay, except when the delay in the disposition of
the case by the Office of the Ombudsman is due to the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.” (R.A. 6770, Ombudsman Law; Question No. XVIII, 2005
BAR)

THE IMPOSITION OF THE PREVENTIVE SUSPENSION IS NOT AUTOMATIC OR SELF-OPERATIVE. There must
first be a valid information, determined at a pre-suspension hearing (Layus M.D. vs. Sandiganbayan, G.R. No. 134272,
December 8, 1999). Upon the filing of such information, the trial court should issue an order with proper notice
requiring the accused officer to show cause at a specific date of hearing why he should not be ordered suspended from
office.Where either the prosecution seasonably files a motion for an order of suspension, or the accused in turn files a
motion to quash the information or challenges the validity thereof, such show-cause order of the trial court would no
longer be necessary. (Miguel vs. Hon. Sandiganbayan, G.R. No. 172035, July 04, 2012).

PREVENTIVE SUSPENSION IS MANDATORY REGARDLESS OF THE RESPONDENT'S CHANGE IN POSITION.

Under Section 13 of RA No. 3019, an incumbent public officer against whom any criminal prosecution under a valid
information for graft-related crime such as malversation is pending in court, shall be suspended from office. The word
“office”, from which the public officer charged shall be preventively suspended, could apply to any office, which he might
currently be holding and not necessarily the particular office under which he was charged. The preventive suspension of
the following public officers was sustained: (1) a mayor, who was charged with acts committed as a government auditor of
the Commission on Audit (Bayot vs. Sandiganbayan, G.R. No. L-61776 to L-61861, March 23, 1984) (2) a public officer, who
was already occupying the office of governor and not the position of municipal mayor that he held previously when
charged with having violated the Anti-Graft Law (Deloso vs. Sandiganbayan, G.R. No. 86899, May 15, 1989); and (3) a Vice-
Governor, whose suspension is predicated on his acts supposedly committed while still a member of the Sangguniang Bayan
(Libanan vs. Sandiganbayan, G.R. No. 112386, June 14, 1994).
(BAR) RULE ON PROSECUTION OF PRIVATE CRIMES:
The crimes of ADULTERY AND CONCUBINAGE shall not be prosecuted except upon a complaint filed by the
offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both alive,
nor, in any case, if the offended party has consented to the offense or pardoned the offenders (MAY BE EXPRESS OR
IMPLIED).
The offenses of SEDUCTION, ABDUCTION AND ACTS OF LASCIVIOUSNESS shall not be prosecuted except upon a
complaint filed by the offended party or her parents, grandparents or guardian, nor, in any case, if the offender has been
EXPRESSLY PARDONED by any of them. If the offended party dies or becomes incapacitated before she can file the
complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her
behalf.
(2000 BAR) The offended party, even if a minor, has the right to initiate the prosecution of the offenses of
seduction, abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she
is incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her parents,
grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents or guardian shall
be exclusive of all other persons and shall be exercised successively in the order herein provided, except as stated in the
preceding paragraph.
No criminal action for defamation which consists in the imputation of the offenses mentioned above shall be
brought except at the instance of and upon complaint filed by the offended party. (5a) The prosecution for violation of special
laws shall be governed by the provisions thereof. (n)

Amendment Substitution of information or complaint

NATURE OF THE Involves either formal or substantial Involves substantial change from original
CHANGES INVOLVED changes charge
LEAVE OF COURT Can be made without leave of court if made Must be made with leave of court since the
before plea has been entered. original information must be dismissed.
PRELIMINARY There is NO need for preliminary There is a NEED for another preliminary
INVESTIGATION OR investigation or the retaking of the plea of investigation and the accused has to plea to
THE TAKING OF NEW the accused if amendment is only as to form the new information
PLEA
NATURE OF OFFENSE Refers to the same offense charged in the Requires that the information involves a
original information or to an offense which different offense which does not include or
necessarily includes or is necessarily is not necessarily included in the original
included in the original charge. charge.
DOUBLE JEOPARDY Yes since it is basically the same offense as No, since the substituted information is a
it involves an offense that includes or is different offense.
necessary included in the original offense

31
 EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL ACTION:

(a) AFTER ARRAIGNMENT AND DURING THE PENDENCY OF THE CRIMINAL ACTION such death extinguishes
the civil liability arising from delict, except where civil liability is predicated on other sources of obligations such as law,
contract, quasi- contract and quasi-delict (Sec. 4, Rule 111, Rules of Court);
(b) BEFORE ARRAIGNMENT, the case shall be dismissed without prejudice to any civil action the offended party
may file against the estate of the deceased;
(c) PENDING APPEAL OF HIS CONVICTION such death extinguishes his criminal liability as well as the civil liability
based solely thereon;
(d) PRIOR TO FINAL JUDGMENT, terminates his criminal liability and only the civil liability directly arising
from and based solely on the offense committed;
(e) AFTER FINAL APPEAL, the pecuniary liabilities of the accused are not extinguished. Claims shall be filed against
the estate of the accused.

DEATH OF ACCUSED PENDING APPEAL OF HIS CIONVICTION IN B.2. CASES

GENERAL RULE: The civil liability based on delict is deemed instituted with the criminal action unless the offended
party waives the civil action, reserves the right to institute it separately, or institutes the civil action prior to the criminal
action.

EXCEPTION: In BP 22, the criminal action shall be deemed to include the corresponding civil actions arising from
crime, law, quasi delict, quasi contract, contract. No reservation is allowed.

BAYOTAS DOCTRINE: Upon the death of the accused pending appeal, the criminal and civil action arising from the
crime shall be dismissed. The offended party must file a separate civil action based on law, quasi delict, quasi contract,
contract against the executor, administrator or estate of the accused. The statute of limitations is deemed interrupted during
the pendency of the criminal case.

MODIFICATION OF THE BAYOTAS DOCTRINE: Upon the death of the accused pending appeal in B.P. 22, the
criminal action shall be dismissed and the civil liability based on delict shall be extinguished. However, the civil liability
based on law, quasi delict, quasi contract, contract shall survive and shall not be dismissed. In other words, despite the
death of the accused, the court shall still determine the liability arising from law, quasi delict, quasi contract,
contract. Ergo, The independent civil liability based on contract, which was deemed instituted in the criminal action for B.P.
22, may still be enforced against her estate in the present case. (PAZ T. BERNARDO v. PEOPLE, G.R. No. 182210, October 05,
2015, BRION)

PREJUDICIAL QUESTION: A prejudicial question generally exists in a situation where a civil action and a criminal
action are both pending, and there exists in the former an issue that must be pre-emptively resolved before the latter may
proceed, because howsoever the issue raised in the civil action is resolved would be determinative Juris et de Jure of the guilt
or innocence of the accused in the criminal case. The rationale behind the principle is to avoid two conflicting decisions, and
its existence rests on the concurrence of two essential elements: (i) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal
action may proceed. (Teodoro A. Reyes vs. Ettore Rossi, G.R. No. 159823, February 18, 2013, BERSAMIN, J.)

GROUNDS IN FILING A MOTION TO QUASH: The motion to quash is the mode by which an accused, before
entering his plea, challenges the complaint or information for insufficiency on its face in point of law, or for defects appa rent
on its face. Section 3, Rule 117 of the Rules of Court enumerates the grounds for the quashal of the complaint or
information, as follows: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction
over the offense charged; (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who
filed the information had no authority to do so; (e) the complaint or information does not conform substantially to the
prescribed form; (f) more than one offense is charged except when a single punishment for various offenses is prescribed by
law; (g) the criminal action or liability has been extinguished; (h) the complaint or information contains averments which, if
true, would constitute a legal excuse or justification; and (i) the accused has been previously convicted or acquitted of the
offense charged, or the case against him was dismissed or otherwise terminated without his express consent. (ENRILE VS.
HON. MANALASTAS [2014]).
A. PRIOR CONVICTION OR ACQUITTAL OF RECKLESS IMPRUDENCE BARS SUBSEQUENT PROSECUTION
FOR THE SAME QUASI-OFFENSE REGARDLESS OF ITS VARIOUS RESULTING ACTS:

RECKLESS IMPRUDENCE IS A SINGLE CRIME AND THAT ITS CONSEQUENCES ON PERSONS AND PROPERTY
ARE MATERIAL ONLY TO DETERMINE THE PENALTY. OTHERWISE STATED, RECKLESS IMPRUDENCE UNDER
ARTICLE 365 IS A SINGLE QUASI-OFFENSE BY ITSELF AND NOT MERELY A MEANS TO COMMIT OTHER CRIMES
SUCH THAT CONVICTION OR ACQUITTAL OF SUCH QUASI-OFFENSE BARS SUBSEQUENT PROSECUTION FOR THE
SAME QUASI-OFFENSE, REGARDLESS OF ITS VARIOUS RESULTING ACTS. (JASON IVLER y AGUILAR vs. HON. MARIA
ROWENA MODESTO-SAN PEDRO, G.R. No. 172716, November 17, 2010, CARPIO, J.).

B. CHARGING THE OFFENDER UNDER SECTION 7 OF THE CYBERCRIME AND ONLINE LIBEL UNDER
THE REVISED PENAL CODE WOULD BE A BLATANT VIOLATION OF THE CONSTITUTIONAL PROSCRIPTION AGAINST
DOUBLE JEOPARDY: If the published material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two offenses, one a violation of Article 353 of the Revised
Penal Code and the other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same elements and are in fact
one and the same offense.Hence, charging the offender under both laws would be a blatant violation of the
constitutional proscription against double jeopardy. (Disini, Jr. et al. v. Secretray of Justice, G.R. No. 203335, February 18,
2014)

Note: Libel by means of writing or “similar means” is already punishable under the RPC. Cybercrime
Law merely establishes the computer system as another means of publication, hence, online libel is not a new
crime.

32
 C. CHARGING THE OFFENDER UNDER BOTH THE CYBERCRIME LAW AND ANTI-CHILD PORNOGRAPHY
ACT (ACPA) WOULD BE TANTAMOUNT TO A VIOLATION OF THE CONSTITUTIONAL PROHIBITION AGAINST DOUBLE
JEOPARDY: Under the Cybercrime Law, online child pornography is defined as the prohibited acts under the Anti-Child
Pornography Act committed through a computer system; while online libel is defined as the libel defined under Article 355 of
the Revised Penal Code committed through a computer system or any other similar means. The online child pornography is
already penalized under the ACPA. Thus, Cybercrime Law merely expands the scope of the Anti-Child Pornography Act of
2009 (ACPA) in order to include identical activities in cyberspace. ACPA’s definition of child pornography in fact already
covers the use of “electronic, mechanical, digital, optical, magnetic or any other means.” Clearly, charging the offender under
both the Cybercrime Law and ACPA would likewise be tantamount to a violation of the constitutional prohibition against
double jeopardy. (Disini, Jr. et al. v. Secretray of Justice, G.R. No. 203335, February 18, 2014)

D. THE DOCTRINE OF SUPERVENING EFFECT DOES NOT BAR ANOTHER PROSECUTION OF THE
ACCUSED. SECTION 7. FORMER CONVICTION OR ACQUITTAL; DOUBLE JEOPARDY: When an accused has been
convicted or acquitted, or the case against him dismissed or otherwise terminated without his express consent by a court of
competent jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and substance to
sustain a conviction and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the
dismissal of the case shall be a bar to another prosecution for the offense charged, or for any attempt to commit the
same or frustration thereof, or for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.

EXCEPTIONS: However, the conviction of the accused shall not be a bar to another prosecution for an offense which
necessarily includes the offense charged in the former complaint or information under any of the following instances:
(a) the graver offense developed due to supervening facts arising from the same act or omission constituting
the former charge;
(b) the facts constituting the graver charge became known or were discovered only after a plea was entered in the
former complaint or information; or
(c) the plea of guilty to the lesser offense was made without the consent of the prosecutor and of the offended
party except as provided in section 1 (f) of Rule 116. In any of the foregoing cases, where the accused satisfies or serves in
whole or in part the judgment, he shall be credited with the same in the event of conviction for the graver offense.
(7a)

PROVISIONAL DISMISSAL: In Peop1e vs. Lacson, 400 SCRA 267 (April 1, 2003), the Supreme Court modified the
requisites for a provisional dismissal, to wit: (a) the prosecution with the expressed consent of the accused moves for a
provisional dismissal of the case; or both the accused and the prosecution move for the provisional dismissal; (b) the
offended party is notified of the motion for provisional dismissal of the case; (c) the court issues an order granting the
motion and dismissing the case provisionally; and (d) the public prosecutor is served with a copy of the order of
provisional dismissal. The foregoing requirements are conditions sine qua non to the application of the time-bar in the
second paragraph of the new rule.

Under Sec. 8 of Rule 117, the one -year and two- year time line shall be counted from "the date of the issuance of
the order of dismissal". In People vs. Lacson, the reckoning period starts from "the service of the order of dismissal on
the public prosecutor who has control of the prosecution'. Accordingly, the public prosecutor cannot be expected to
comply with the timeline unless he is served with a copy of the order of dismissal. It also ruled that the time-bar is a special
procedural limitation qualifying the right of the State to prosecute, making the time-bar an essence of the given right or as an
inherent part thereof, so that the lapse of the time-bar operates to extinguish the right of the State to prosecute the
accused. (LOS BAÑOS VS. PEDRO, G.R. NO. 173588, APRIL 22, 2009, EN BANC, BRION, J.).
B. WILLIAM CO CASE: While Section 8 Rule 117 states that the order of dismissal shall become permanent
one year after the issuance thereof without the case having been revived, the provision should be construed to mean that the
order of dismissal shall become permanent one year after service of the order of dismissal on the public prosecutor who has
control of the prosecution without the criminal case having been revived. If the offended party is represented by a private
counsel the rule is that the reckoning period should commence to run from the time such private counsel was
actually notified of the order of provisional dismissal. When a party is represented by a counsel, notices of all kinds
emanating from the court should be sent to the latter at his/her given address. (William Co v. New Prosperity Plastic Products,
Inc., 30 June 2014).

Under the Administrative Code of 1987, a year is composed of 12 calendar months. Hence, the fact that
February 2004 had 29 days is irrelevant since the law speaks of calendar months. Hence a motion to revive was within 12
calendar months. (Co v. New Prosperity Plastic Products, Inc., 30 June 2014).

NATURE OF TIME BAR RULE: The time-bar is a special procedural limitation qualifying the right of the State to
prosecute, making the time-bar an essence of the given right or as an inherent part thereof, so that the lapse of the time-bar
operates to extinguish the right of the State to prosecute the accused. (LOS BAÑOS vs. SAN PEDRO [2009]).

WHEN MAY ACCUSED ENTER A PLEA OF GUILTY TO A LESSER OFFENSE:

(1) During arraignment the accused may be allowed to plead guilty to a lesser offense provided the following
requisites concur: (a) the lesser offense to be pleaded is necessarily included in the offense charge; (b) there must be consent
of the prosecutor and the private offended party (Sec. 2, Rule 116, Rules of Court). (Sec. 1 (f), Rule 116, Rules of Court).
(2) After arraignment but before trial, the accused may still be allowed to plead guilty to lesser offense after
withdrawing his plea of not guilty. No amendment of complaint or information is necessary (Sec. 2, Rule 116, Rules of Court).

CAPITAL OFFENSE: WHEN THE ACCUSED PLEADS GUILTY TO A CAPITAL OFFENSE, THE COURT SHALL
CONDUCT A SEARCHING INQUIRY INTO THE VOLUNTARINESS AND FULL COMPREHENSION OF THE
CONSEQUENCES OF HIS PLEA AND REQUIRE THE PROSECUTION TO PROVE HIS GUILT AND THE PRECISE DEGREE
OF HIS CULPABILITY. The accused may also present evidence on his behalf. Under the foregoing Rule, three things are
enjoined upon the trial court when a plea of guilty to a capital offense is entered: (1) the court must conduct a searching
inquiry into the voluntariness of the plea and the accused's full comprehension of the consequences thereof; (2) the court
33
must require the prosecution to present evidence to prove the guilt of the accused and the precise degree of his culpability;
and (3) the court must ask the accused if he desires to present evidence on his behalf and allow him to do so if he desires.
(PEOPLE VS. LOPIT [2008])

A. PROSECUTION’S WITNESS:

DEPOSITION OF A PROSECUTION’S WITNESS IN A CRIMINAL CASE MUST BE MADE BEFORE THE COURT, OR
AT LEAST BEFORE THE JUDGE, WHERE THE CASE IS PENDING: The Rules of Court allows the taking of depositions in
civil cases, either upon oral examination or written interrogatories, before any judge, notary public or person authorized to
administer oaths at any time or place within the Philippines; or before any Philippine consular official, commissioned officer
or person authorized to administer oaths in a foreign state or country, with no additional requirement except reasonable
notice in writing to the other party. But for purposes of taking the deposition in criminal cases, more particularly of a
prosecution witness who would forseebly be unavailable for trial, the testimonial examination should be made before the
court, or at least before the judge, where the case is pending as required by the clear mandate of Section 15, R119. To do
otherwise would violate the accused's right to confront the witnesses against him. (Go v. People, July 18, 2012).

DEFENSE WITNESSES:

In WEBB V. DE LEON (August 17, 1995): The trial court’s disallowance of the deposition taking was sustained only
because there was no necessity for the procedure as the matter sought to be proved by way of deposition was considered
merely corroborative of the evidence of the defense. As to the applicability of Rule 23 in criminal actions, it was held that
depositions of defense witnesses residing abroad must be allowed on grounds of due process and constitutional right
of the accused to have compulsory process issued to secure the attendance of witnesses in his behalf.

RIGHTS OF THE ACCUSED AT THE TRIAL (RULE115):"In all criminal prosecutions the accused shall be entitled to
the following rights:" (a) to be presumed innocent until the contrary is proved; (b) to be informed of the nature and cause of
accusation against him; (c) to be present and defend in person and by counsel at every stage of the proceedings, from
arraignment to promulgation of the judgment; (d) to testify as witness in his own behalf but subject to cross-examination on
matters covered by direct examination. His silence shall not in any manner prejudice him; (e) to be exempt from being
compelled to be a witness against himself; (f) to confront and cross-examine the witnesses against him at the trial; (g) to have
compulsory process issued to secure the attendance of the witnesses and production of other evidence in his behalf; (h) to
have speedy, impartial, and public trial; (i) to appeal in all cases allowed and in a manner prescribed by law.

BARKER BALANCING TEST IN INORDINATE DELAY: It provides that courts must consider the following factors
when determining the existence of inordinate delay: (a) length of delay; (b) the reason for the delay; (c) the defendant’s
assertion or non-assertion of his or her right; and (d) prejudice to the defendant as a result of the delay. (MATAAS CAGANG
VS. SANDIGANBAYAN, JULY 31, 2018, LEONEN)

NOTE: These are also the factors that must be considered in determining whether the accused has been deprived of
his right to a speedy disposition of the case and to a speedy trial, (JACOB VS. SANDIGANBAYAN [2010])

RIGHT TO SPEEDY TRIAL MAY ONLY BE INVOKED IN CRIMINAL PROSECUTIONS AGAINST COURTS OF LAW.
RIGHT TO SPPEDY DISPOSITION OF CASES MAY BE INVOKED BEFORE ANY TRIBUNAL, WHETHER JUDICIAL OR
QUASI-JUDICIAL (MATAAS CAGANG VS. SANDIGANBAYAN, JULY 31, 2018, LEONEN)

DOCTRINE OF INORDINATE DELAY: INORDINATE DELAY IN RESOLVING A CRIMINAL COMPLAINT, BEING

VIOLATIVE OF THE CONSTITUTIONALLY GUARANTEED RIGHT TO DUE PROCESS AND TO THE SPEEDY
DISPOSITION OF CASES, WARRANTS THE DISMISSAL OF THE CRIMINAL CASE.

EXCLUDE FACT FINDING PERIOD IN THE APPLICATION OF THE DOCTRINE OF INORDINATE DELAY:

THE PERIOD TAKEN FOR FACT-FINDING INVESTIGATIONS PRIOR TO THE FILING OF THE FORMAL COMPLAINT
SHALL NOT BE INCLUDED IN THE DETERMINATION OF WHETHER THERE HAS BEEN ORDINATE DELAY. THE
RECKONING POINT SHOULD BE FROM PRELIMINARY INVESTIGATION. THUS, DELAYS BEYOND FROM THE
PRELIMINARY INVESTIGATION WIL BE TAKEN AGAINST THE PROSECUTION. (MATAAS CAGANG VS. SANDIGANBAYAN,
JULY 31, 2018, LEONEN)

DEMURRER TO EVIDENCE: A demurrer to evidence is filed after the prosecution has rested its case and the trial
court is required to evaluate whether the evidence presented by the prosecution is sufficient enough to warrant the conviction
of the accused beyond reasonable doubt. If the court finds that the evidence is not sufficient and grants the demurrer
to evidence, such dismissal of the case is one on the merits, which is equivalent to the acquittal of the accused. After the
prosecution rests its case, the court may dismiss the action on the ground of insufficiency of evidence (1) on its own
initiative after giving the prosecution the opportunity to be heard; or (2) upon demurrer to evidence filed by the accused
with or without leave of court. If the court denies the demurrer to evidence filed with leave of court, the accused may
adduce in his defense. When the demurrer to evidence is filed without leave of court, the accused waives the right to present
evidence and submits the case for judgment on the basis of the evidence for the prosecution. The motion for leave of court to
file demurrer to evidence shall specifically state its grounds and shall be filed within a non-extendible period of five (5) days
after the prosecution rests its case. The prosecution may oppose the motion within a non-extendible period of five (5) days
from its receipt. If leave of court is granted, the accused shall file the demurrer to evidence within a non-extendible period
of ten (10) days from notice. The prosecution may oppose the demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment.”
REMEDY TO AN ORDER DENYING A DEMURRER TO EVIDENCE:

GENERAL RULE: The special civil action for certiorari is generally not proper to assail such an interlocutory order
issued by the trial court because of the availability of another remedy in the ordinary course of law. Moreover, Section 23,

34
Rule 119 of the Rules of Court expressly provides, “the order denying the motion for leave of court to file demurrer to
evidence or the demurrer itself shall not be reviewable by appeal or by certiorari before judgment.”

EXCEPTION: Notwithstanding the interlocutory character and effect of the denial of the demurrer to
evidence, the petitioner as the accused could avail herself of the remedy of certiorari when the denial was tainted
with grave abuse of discretion. “In the exercise of our superintending control over other courts, we are to be guided by all
the circumstances of each particular case ‘as the ends of justice may require.’ So it is that the writ will be granted where
necessary to prevent a substantial wrong or to do substantial” (Macapagal-Arroyo vs. People, G.R. No. 220598, July 19, 2016,
BERSAMIN, J.)

DISCHARGE OF AN ACCUSED TO BECOME A STATE WITNESS: When two or more persons are jointly charged
with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more
of the accused to be discharged with their consent so that they may be witnesses for the state when, after requiring the
prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the
discharge, the court is satisfied that: (a) There is absolute necessity for the testimony of the accused whose discharge is
requested; (b) There is no other direct evidence available for the proper prosecution of the offense committed, except the
testimony of said accused; (c) The testimony of said accused can be substantially corroborated in its material points; (d)
Said accused does not appear to be the most guilty; and (e) Said accused has not at any time been convicted of any
offense involving moral turpitude. Evidence adduced in support of the discharge shall automatically form part of the trial.
If the court denies the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in
evidence. (Section 17, Rule 119)

TWO MODES BY WHICH A PARTICIPANT IN THE COMMISSION OF A CRIME MAY BECOME A STATE WITNESS:
The two modes by which a participant in the commission of a crime may become a state witness are, namely: (a) by
discharge from the criminal case pursuant to Section 17 of Rule 119 of the Rules of Court; and (b) by the approval of
his application for admission into the Witness Protection Program of the DOJ in accordance with Republic Act No.
6981 (The Witness Protection, Security and Benefit Act)

Under Section 17, Rule 119 of the Rules of Court, the discharge by the trial court of one or more of several
accused with their consent so that they can be witnesses for the State is made upon motion by the Prosecution before resting
its case. The trial court shall require the Prosecution to present evidence and the sworn statements of the proposed witnesses
at a hearing in support of the discharge. The trial court must ascertain if the following conditions fixed by Section 17 of Rule
119 are complied with, namely: (a) there is absolute necessity for the testimony of the accused whose discharge is requested;
(b) there is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said
accused; (c) the testimony of said accused can be substantially corroborated in its material points; (d) said accused does not
appear to be most guilty; and (e) said accused has not at any time been convicted of any offense involving moral turpitude.

On the other hand, Section 10 of Republic Act No. 6981 provides: Section 10. State Witness. — Any person who
has participated in the commission of a crime and desires to be a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be admitted into the Program whenever the following circumstances are
present: a. the offense in which his testimony will be used is a grave felony as defined under the Revised Penal Code
or its equivalent under special laws; b. there is absolute necessity for his testimony; c. there is no other direct evidence
available for the proper prosecution of the offense committed; d. his testimony can be substantially corroborated on its
material points; e. he does not appear to be most guilty; and f. he has not at any time been convicted of any crime involving
moral turpitude.

NOTE: By jurisprudence, “most guilty” refers to the highest degree of culpability in terms of participation in
the commission of the offense and does not necessarily mean the severity of the penalty imposed. While all the
accused may be given the same penalty by reason of conspiracy, yet one may be considered to have lesser or the least guilt
taking into account his degree of participation in the commission of the offense.

If conviction is for a light offense . . . the judgment may be pronounced in the presence of his
counsel or representative.
When the judge is absent or outside the province or . . . the judgment may be promulgated by the clerk of court.
city
If the accused is confined or detained in another . . . the judgment may be promulgated by the executive judge
province or city of the Regional Trial Court having jurisdiction over the place of
confinement or detention upon request of the court which
rendered judgment
In case the accused fails to appear at the scheduled . . . the promulgation shall be made by recording the judgment
date of promulgation of judgment despite notice in the criminal docket and serving him a copy thereof at his
last known address or through his counsel.

If the judgment is for conviction and the failure of the . . . he shall lose the remedies available in the rules
accused to appear was without justifiable cause against the judgment and the court shall order his arrest.
Within fifteen (15) days from promulgation of judgment,
however, the accused may surrender and file a motion for
leave of court to avail of these remedies. He shall state
the reasons for his absence at the scheduled promulgation
and if he proves that his absence was for a justifiable
cause, he shall be allowed to avail of said remedies within
fifteen (15) days from notice.

35
 APPEAL TO FROM THE DECISION OF HOW
RTC MTC, from a case decided in its original jurisdiction File a notice of appeal with the MTC and
serve a copy of the notice to the adverse
party

CA RTC in the exercise of its original jurisdiction for an File a notice of appeal with the RTC and
imposed penalty less than reclusion perpetua, life serve a copy of the notice to the adverse
imprisonment and death party

CA RTC in the exercise of its appellate jurisdiction File a petition for review with the CA under
Rule 42
CA RTC where the penalty imposed is reclusion By filing a notice of appeal with the Court
perpetua or life imprisonment, OR where a lesser of Appeals.
penalty is imposed for offenses committed on the
same occasion or which arose out of the same
occurrence that gave rise to the offense punishable
by death, reclusion perpetua or life imprisonment

EVIDENCE

BURDEN OF PROOF BURDEN OF EVIDENCE

It is the duty of a party to present evidence to It is the duty of a party to go forward with the evidence to
establish his claim or defense by the amount of overthrow the prima facie evidence against him.
evidence required by law.
Does not shift and remains throughout the entire case Shifts from party to party depending upon the exigencies of the
exactly where the pleadings originally placed it. case in the course of the trial.
Generally determined by the pleadings filed by the party. Generally determined by the developments of the trial; or by
the provisions of substantive law or procedural rules which
may relieve the party from presenting evidence on the facts
alleged.
EQUIPONDERANCE OF EVIDENCE RULE: The "equiponderance of evidence" rule states that when the scale shall
stand upon an equipoise and there is nothing in the evidence which shall incline it to one side or the other, the court will find
for the defendant. Under this principle, the plaintiff must rely on the strength of his evidence and not on the weakness of the
defendant's claim; even if the evidence of the plaintiff may be stronger than that of the defendant, there is no preponderance
of evidence on his side if such evidence is insufficient in itself to establish his cause of action. (Valbueco, Inc. vs. Province of
Bataan [2013]).

REQUISITES FOR ADMISSIBILITY OF EVIDENCE: Evidence is admissible when it is relevant to the issue and is not
excluded by the law or these rules. (Sec. 3 Rule 128)

WIGMORE'S TWO (2) AXIOMS OF ADMISSIBILITY: (a) That none but facts having rational probative value are
admissible as evidence (axiom of relevancy); and (b) That all facts having rational probative value are admissible unless some
specific rule forbids (axiom of competency).

NEW STANDARD OF RELAXED ADMISSIBILITY OF EVIDENCE IN AMPARO PETITIONS: In Razon, Jr. vs.
Tagitis, G.R. No. 182498, December 3, 2009, the Supreme Court laid down a new standard of relaxed admissibility of
evidence to enable amparo petitioners to meet the required amount of proof showing the State's direct or indirect involvement
in the purported violations and found it a fair and proper rule in amparo cases “to consider all the pieces of evidence
adduced in their totality” and “to consider any evidence otherwise inadmissible under our usual rules to be
admissible if it is consistent with the admissible evidence adduced. Put simply, evidence is not to be rejected outright
because it is inadmissible under the rules for as long as it satisfies “the most basic test of reason – i.e., relevance of the
evidence to the issue at hand and its consistency with all other pieces of adduced evidence. (In The Matter of the
Petition for the Issuance of A Writ of Amparo in Favor of Lilibeth O. Ladaga [2012]).
CLEAR AND CONVINCING EVIDENCE SHOULD BE USED IN GRANTING BAIL IN EXTRADITION CASES: An extradition
proceeding being sui generis, the standard of proof required in granting or denying bail can neither be the proof beyond
reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. While administrative
in character, the standard of substantial evidence used in administrative cases cannot likewise apply given the object of
extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. In his Separate Opinion
in Purganan, then Associate Justice, now Chief Justice Reynato S. Puno, proposed that a new standard which he termed
"clear and convincing evidence" should be used in granting bail in extradition cases. According to him, this standard
should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. The potential
extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and
processes of the extradition court. (Government of Hong Kong Special Administrative Region vs. Olalia, Jr., [2007]).

MANDATORY JUDICIAL NOTICE: A court shall take judicial notice, without the introduction of evidence, of the
existence and territorial extent of states, their political history, forms of government and symbols of nationality, the law of
nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the
Philippines, the official acts of legislative, executive and judicial departments of the Philippines, the laws of nature, the
measure of time, and geographical divisions.” (Question Nos. 19-a, 1997 BAR; XVII a,b,c,d,e, 2005 BAR)

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)
36
 General rule: COURTS CANNOT TAKE JUDICIAL NOTICE OF FOREIGN LAWS:

As held in Garcia v. Recio, 418 Phil. 723, 723-735 (2001), divorce obtained abroad is proven by the divorce decree
itself. Indeed the best evidence of a judgment is the judgment itself. The decree purports to be a written act or record of
an act of an official body or tribunal of a foreign country. x x x x It is well-settled in our jurisdiction that our courts cannot
take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not
among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must
be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative (ENRIQUEZ VDA.
DE CATALAN VS. CATALAN-LEE [2012]).

EXCEPTIONS: INSTANCES WHEN A PHILIPPINE COURT CAN TAKE JUDICIAL NOTICE OF A FOREIGN LAW:
Three instances when a Philippine Court can take judicial notice of a foreign law are:

(1) when the Philippine courts are evidently familiar with the foreign law;
(2) when the foreign law refers to the law of nations; and

JUDICIAL NOTICE OF THE LAWS OF NATIONS: The law of nations is subject to a mandatory judicial notice.
Under the 1987 Philippine Constitution, the Philippines adopt the generally accepted principles of international law as
part of the law of the land (Sec. 2, Art. II, Constitution of the Philippines).

(3) when it refers to a published treaties, periodical or pamphlet on the subject of law if the court takes judicial notice
of the fact that the writer thereof is recognized in his profession or calling as expert on the subject.

The RTC may not generally take judicial notice on foreign laws (In re Estate of Johnson, 39 Phil. 156 [1918];
Fluemer v. Hix 54 Phil. 610 [1930]), which must be proved like any other matter of fact (Sy Joc Lieng v. Sy Quia, 16 Phil.
137 [1910]) except in a few instances, when the court in the exercise of its sound judicial discretion, may take notice on
foreign laws where Philippine courts are evidently familiar with them, such as the Spanish Civil Code, which had taken
effect in the Philippines, and other allied legislation (Pardo v. Republic, 85 Phil. 324 [1950]; Delgado v. Republic, L-2546,
[January 28 1950]).

DOCTRINE OF PRESUMED-IDENTITY APPROACH OR PROCESSUAL PRESUMPTION: It is hornbook principle that

the party invoking the application of a foreign law has the burden of proving the law. In international law, the party who
wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated
as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign
law. He is presumed to know only domestic or forum law. x x x Where a foreign law is not pleaded or, even if pleaded, is
not proved, the presumption is that foreign law is the same as ours. (ATCI OVERSEAS CORPORATION vs. ECHIN [2010]).

CHAIN OF CUSTODY RULE: The term "chain of custody" as the duly recorded authorized movements and custody of
the seized drugs at each stage, from the moment of confiscation to the receipt in the forensic laboratory for examination, until
it is presented in court. (PEOPLE vs. ALVIN JUGO Y VILLANUEVA G.R. No. 231792, January 29, 2018, PERLAS-BERNABE)

As a general rule, the apprehending team must strictly comply with the procedure laid out in Section 21 of RA 9165
and the IRR. However, their failure to do so does not ipso facto render the seizure and custody over the items as void and
invalid if: (a) there is justifiable ground for non-compliance; and (b) the integrity and evidentiary value of the seized items are
properly preserved. In this case, it was not explained how the drugs were submitted to the superintendent. (People vs. Placido
Goco, G.R. No. 219584, October 17, 2016 , PERLAS-BERNABE)

The Chain of Custody Rule requires that the apprehending team shall, immediately after seizure and confiscation
conduct a physical inventory and photograph the seized items in the presence of the accused or the person from whom the
items were seized, his representative or counsel, a representative from the media and the Department of Justice, and any
elected public official who shall be required to sign the copies of the inventory and be given a copy of the same, and the seized
drugs must be turned over to the PNP Crime Laboratory within twenty-four (24) hours from confiscation for examination. The
plurality of the breaches of procedure committed by the police officers, unacknowledged and unexplained by the State,
militate against a finding of guilt beyond reasonable doubt against the accused, as the integrity and evidentiary value of the
corpus delicti had been compromised. It has been repeated in jurisprudence that the procedure in Section 21 of RA 9165 is a
matter of substantive law, and cannot be brushed aside as a simple procedural technicality; or worse, ignored as an
impediment to the conviction of illegal drug suspects. (People vs. Macapundag, 820 SCRA 204, G.R. No. 225965, 13 March
2017 and People vs. Geronimo G.R. No. 225500, 11 September 2017, PERLAS-BERNABE)

THE CHAIN OF CUSTODY IS DIVIDED INTO FOUR (4) LINKS: first, the seizure and marking, if practicable, of the
illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the
apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the
forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized by the
forensic chemist to the court. (People vs. Calibod, G.R. No. 230230, November 20, 2017, PERLAS-BERNABE)

BEST EVIDENCE RULE

Gen. Rule: When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the
original document itself.

Meaning of original: The following are considered as original of a document:

a. One the contents of which are the subject of inquiry;
b. When a document is in two or more copies executed at or about the same time with identical contents, all such copies
are equally regarded as originals DUPLICATE/MULTIPLICATE ORIGINALS;
37
 c. When an entry is repeated in the regular course of business, one being copied from another at or near the time of the
transaction, all the entries are equally regarded as originals. REGULARLY REPEATED BUSINESS ENTRIES. (Section 4, Rule
130)

ANGARA DIARY AS PUBLISHED IN THE PHILIPPINE DAILY INQUIRER: In Estarda vs. Desierto, the Supreme
Court held that there was no violation of the best evidence rule when the trial court relied not upon the original but only
upon a copy of the Angara Diary as published in the Philippine Daily Inquirer on February 4-6, 2001. The Court noted that
the "Production of the original may be dispensed with, in the trial court's discretion, whenever in the case in
hand the opponent does not bona fide dispute the contents of the document and no other useful purpose will be
served by requiring production. (Wigmore, Evidence, Estrada v. Desierto cited in CITIBANK, N.A. (Formerly First National City
Bank) and Investors' Finance Corporation, doing business under the name and style of FNCB Finance vs. Sabeniano [2006]).

Q: Respondents opened a US savings account at BPI-Gapan Branch and deposited therein the total amount of
US$ 16,264.00, in US Treasury Check payable to "Ma. Marcos Vda. de Mendoza". After the lapse of the thirty day
clearing period, respondents withdrew the amount from the US savings account, leaving only US$20.00 for bank
charges. On June 26, 1997, BPI received a notice from its correspondent bank, Bankers Trust that the subject check
was dishonored due to "amount altered", as evidenced by a photocopy of the subject check with a notation
"endorsement cancelled" by Bankers Trust as the original copy of the subject check was allegedly confiscated by US
government.

This prompted BPI to inform respondents of such dishonor and to demand reimbursement. According to
Amado, he would have been willing to pay BPI, if only the latter presented proper and authenticated proof of the
dishonor of the subject check. However, since the bank failed to do so, Amado argued that BPI had no cause of action
against him and his mother, Maria. Is the presentation of a mere photocopy of the subject check in violation of the
Best Evidence Rule?

A: No, applying the exception to the Best Evidence Rule, the presentation of the photocopy of the subject check as
secondary evidence was permissible. While the Best Evidence Rule under Section 3, Rule 130 of the Rules of Court states
that generally, the original copy of the document must be presented whenever the content of the document is under inquiry,
the rule admits of certain exceptions, such as "when the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror." In order to fall under the aforesaid exception, it is crucial that the offeror proves:
(a) the existence or due execution of the original; (b) the loss and destruction of the original, or the reason for its non-
production in court; and (c) the absence of bad faith on the part of the offeror to which the unavailability of the original can
be attributed.

In this case, BPI sufficiently complied with the foregoing requisites. First, the existence or due execution of the
subject check was admitted by both parties. Second, the reason for the non-presentation of the original copy of the subject
check was justifiable as it was confiscated by the US government for being an altered check. The subject check, being a US
Treasury Warrant, is not an ordinary check, and practically speaking, the same could not be easily obtained. Lastly, absent
any proof to the contrary and for the reasons already stated, no bad faith can be attributed to BPI for its failure to present the
original of the subject check. Thus, applying the exception to the Best Evidence Rule, the presentation of the photocopy of the
subject check as secondary evidence was permissible. (BPI vs. MENDOZA, G.R. No. 198799, March 20, 2017, PERLAS-
BERNABE)

EXCEPTION:

SECONDARY EVIDENCERULE

Secondary evidence is that which may be used to prove the contents of a document where the original is lost,
destroyed, or cannot be produced, or where the original is in the custody or control of the party against whom the
evidence is offered, and who fails to produce it after reasonable notice.

SEC. 3. ORIGINAL DOCUMENT MUST BE PRODUCED; EXCEPTIONS.“When the subject of inquiry is the contents
of a document, no evidence shall be admissible other than the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the
offeror;
(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the
latter fails to produce it after reasonable notice;
(c) When the original documents consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general result of the whole; and
(d) When the original is a public record in the custody of a public officer or is recorded in a public office.”

ORDER IN THE PRESENTATION OF SECONDARY EVIDENCE:

(a) a copy of the original;
(b) if there is no copy, then a recital of its contents in some authentic document;
(c) in default of the above, by the testimony of witnesses (Rule 130, Sec. 5, Rules of Court).

WHEN PAROL EVIDENCE CAN BE INTRODUCED

GENERAL RULE: SEC. 9. Evidence of written agreements.—When the terms of an agreement have been reduced to
writing, it is considered as containing all the terms agreed upon, and there can be, between the parties and their successors in
interest, no evidence of such terms other than the contents of the written agreement.

EXCEPTIONS: However, a party may present evidence to modify, explain or add to the terms of the written agreement
if he puts in issue in his pleading:

38
 (a) An intrinsic ambiguity, mistake or imperfection in written agreement;
(b) The failure of the written agreement to express the true intent and agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their successors in interest after the execution of the written
agreement.

The term "agreement" includes wills. (SPS. LEQUIN vs. SPS. VIZCONDE [2009]).
Q: Can a mental retardate or feeble-minded person be a witness?

A: Yes. A mental retardate or feeble-minded person qualifies as a competent witness if she can perceive and,
perceiving, can make known her perception to others. (People v. Tablang, G.R. No. 174859, October 30, 2009).

PRIVILEGED COMMUNICATION RULE

Section 24. Disqualification by reason of privileged communication. — The following persons cannot testify as
to matters learned in confidence in the following cases:

(a) 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;

(b) 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;

(c) 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 capacity, and which would
blacken the reputation of the patient;

(d) 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

(e) 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. (21a)

Marital Disqualification Rule Marital Privilege Rule

Can only be invoked if one of the spouses is a party
to the action.
Applies only if marriage is existing at the time the
testimony is offered.
Constitutes a total prohibition against any testimony
for or against the spouse of the witness.
Can be claimed whether or not the spouse is a party to
the action.
Can be claimed even after the marriage had been
dissolved.
Applies only to confidential communications between
the spouses.

EXCEPTION: DOCTRINE OF STRAINED RELATIONSHIP:

WHEN AN OFFENSE DIRECTLY ATTACKS OR DIRECTLY AND VITALLY IMPAIRS THE CONJUGAL RELATION,
IT COMES WITHIN THE EXCEPTION TO THE STATUTE THAT ONE SHALL NOT BE A WITNESS AGAINST THE OTHER
EXCEPT IN A CRIMINAL PROSECUTION FOR A CRIME COMMITTED BY ONE AGAINST THE OTHER. (PEOPLE V.
CASTANEDA {8 SCRA 562, 1979})

CONFESSIONS TO THE MEDIA: The statements spontaneously made by a suspect to news reporters on a televised
interview are deemed voluntary and are admissible in evidence. (People vs. Hipona [2010]).

GOOD SAMARITAN RULE: An offer to pay or the payment of medical, hospital or other expenses occasioned by an
injury is not admissible in evidence as proof of civil or criminal liability for the injury. (Sec. 27, Rule 130)

RES INTER ALIOS ACTA RULE:

PRINCIPLE OF RES INTER ALIOS ACTA ALTERI NOCERE NON DEBET: The principle of res inter alios acta alteri
nocere non debet expressed in Section 28, Rule 130 of the Rules of Court: Sec. 28. Admission by third-party. – The rights of a
party cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided. Clearly thus, an
extrajudicial confession is binding only on the confessant. It cannot be admitted against his or her co-accused and is
considered as hearsay against them. Tamargo v. Awingan elaborated on the reason for this rule, viz: On a principle of
good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that a man should be bound
by the acts of mere unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their
acts or conduct be used as evidence against him. The exception provided under Sec. 30, Rule 130 of the Rules of Court to the
rule allowing the admission of a conspirator requires the prior establishment of the conspiracy by evidence other than the
confession. x x x This Court, however, has previously stressed that mere association with the principals by direct
participation, without more, does not suffice. Relationship, association and companionship do not prove conspiracy.
(SALAPUDDIN, vs. CA, GOV. AKBAR, and INDANAN [2013]).

39
 TWO BRANCHES OF THE RES INTER ALIOS ACTA RULE:

(a) the rule that the rights of a party cannot be prejudiced by an act, declaration, or omission of another (Sec.
28, Rule 130, Rules of Court);

(b) the rule that evidence of previous conduct or similar acts at one time is not admissible to prove that one did or
did not do the same act at another time (Rule 132, Sec. 34, Rules of Court).

EXCEPTION: The testimony of the accused against his c-accused in open court is considered as admissible testimony and
not subject of the Res inter alios acta rule since such testimony is subject to cross examination. (BAR)

EXCEPTIONS TO RES INTER ALIOS ACTA RULE

1. Co-partner.
2. Agent.
3. Joint owner, joint debtor, or other person jointly interested with the party.
4. Co-conspirator.
5. Privies.

SIMILAR ACTS AS EVIDENCE

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 but it may be received to prove a specific intent or knowledge,
identity, plan, system, scheme, habit, custom or usage and the like (Rule 130, Sec. 34, Rules of Court).

DOCTRINE OF ADOPTIVE ADMISSION: Adoptive admission is where a party, by his words or conduct, voluntarily
adopts or ratifies another's statement. Evidence of the statement would then be admissible against the party. (Republic v.
Kenrick Dev't Corp., G.R. No. 149576, 8 August 2006). An adoptive admission is a party’s reaction to a statement or
action by another person when it is reasonable to treat the party’s reaction as an admission of something stated or
implied by the other person. Jones explains that the “basis for admissibility of admissions made vicariously is that arising
from the ratification or adoption by the party of the statements which the other person had made.” To use the blunt
language of Mueller and Kirkpatrick, “this process of attribution is not mumbo jumbo but common sense.” In the Angara
Diary, the options of the petitioner started to dwindle when the armed forces withdrew its support from him as President and
commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President Pimentel to advise petitioner to consider
the option of “dignified exit or resignation.” Petitioner did not object to the suggested option but simply said he could
never leave the country. Petitioner’s silence on this and other related suggestions can be taken as an admission by
him. (Estrada vs. Desierto [2001]).

MULTIPLE (DOUBLE) HEARSAY: Double or multiple hearsay occurs when a hearsay declaration is embedded in
another with the result that there are two or more levels of hearsay. This frequently happens where a party seeks to
introduce a written report by a declarant (first level) of another declarant's out-of-court statement (second level). Hearsay
included within hearsay is not excluded under the hearsay rule if each level of hearsay conforms with an exception to the
hearsay rule.

Under the doctrine of independently relevant statements, only the fact that such statements were made is relevant,
and the truth or falsity thereof is immaterial. The doctrine on independently relevant statements holds that conversations
communicated to a witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were
actually made. (Gubaton vs. Amador A.C. No. 8962, July 9, 2018) , PERLAS-BERNABE)

REQUISITES: The Rules of Court states that a dying declaration is admissible as evidence if the following
circumstances are present:

"(a) it concerns the cause and the surrounding circumstances of the declarant’s death;
(b) it is made when death appears to be imminent and the declarant is under a consciousness of impending death;
(c) the declarant would have been competent to testify had he or she survived; and
(d) the dying declaration is offered in a case in which the subject of inquiry involves the declarant’s death." (PEOPLE
vs. MAGLIAN [2011]).

Dying Declaration

Q: SPO2 Borre was shot outside his residence by two men who immediately fled. While he was being brought to
hospital by his companion PO3 Zapanta and his grandson Ramil, SPO2 Borre told them that it was Palanas who shot
him. This statement was repeated to his wife, Resurreccion, who followed him at the hospital. SPO2 Borre died due
to gunshot wounds on his head and trunk. The RTC convicted Palanas of Murder, on the strength of SPO2 Borre's
statements that Palanas shot him which constituted as an ante mortem statement and formed part of the res gestae,
and, thus, admissible as evidence against Palanas. On appeal, the CA affirmed the ruling of the RTC. Was the
statement of SPO2 Borre admissible as evidence against Palanas

A: Yes. SPO2 Borre's statements constitute a dying declaration, given that they pertained to the cause and circumstances of
his death and taking into consideration the number and severity of his wounds, it may be reasonably presumed that he
uttered the same under a fixed belief that his own death was already imminent. SPO2 Borre's statements may likewise be
deemed to form part of the res gestae since it refer to a startling occurrence, i.e., him being shot by Palanas. While on his way
to the hospital, SPO2 Borre had no time to contrive the identification of his assailants, hence, his utterance was made in
spontaneity and only in reaction to the startling occurrence (PEOPLE vs. PALANAS, G.R. No. 214453, June 17, 2015) ,
PERLAS-BERNABE)

40
 PART OF RES GESTAE (BAR):

Statements made by a person while a starting occurrence is taking place or immediately prior or
subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of res gestae.

So, also, statements accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae (Rule 130, Sec. 42, Rules of Court).

A. SPONTANEOUS STATEMENTS: Res gestae refers to statements made by the participants or the victims of, or the
spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or
utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statemen t. An
important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to
divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation .

REQUISITES: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the
declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately
attending circumstances. (People vs. Fallones [2011]).

B. VERBAL ACTS: Statements accompanying an accompanying an equivocal act material to the issue and giving it a
legal significance may be received in evidence as part of the res gestae.

REQUISITES: i. The act or occurrence characterized must be equivocal; ii. Verbal acts must characterize or explain
the equivocal act; iii. Equivocal act must be relevant to the issue; iv. Verbal acts must be contemporaneous with the
equivocal act.
ENTRIES IN OFFICIAL RECORDS:

Q: Is the certification of the PNP Firearm and Explosives Office without the certifying officer testifying
on it admissible in evidence against X? (Question no. 18, 2003 BAR).

A: Yes the PNP certification is admissible in evidence against X.

Under the Rules on Evidence, excepted from the hearsay rule are entries in official records made in the performance
of his duty by a public officer. There is no requirement that the entrant is dead or unavailable to testify. (S44 R130). The PNP
certification is an official record which is excepted from the hearsay rule and thus admissible in evidence even
without accounting for the non-presentation of the entrant.

SECTION 38. DECLARATION AGAINST INTEREST (BAR)

The declaration made by a person deceased, or unable to testify, against the interest of the declarant, if the fact is
asserted in the declaration was at the time it was made so far contrary to declarant's own interest, that a reasonable man in
his position would not have made the declaration unless he believed it to be true, may be received in evidence against himself
or his successors in interest and against third persons. (32a)

To render a statement admissible as a declaration against interest, the following requisites must be present:
a. That the declarant is dead or unable to testify;
b. That it relates to a fact against the interest of the declarant;
c. That at the time he made said declaration the declarant was aware that the same was contrary to his
aforesaid interest; and
d. That the declarant had no motive to falsify and he believed such declaration to be true

METHODS OF IMPEACHMENT OF ADVERSE PARTY'S WITNESS: A witness may be impeached by the party
against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or
integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony,
but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record
of the judgment, that he has been convicted of an offense. (Sec.11 Rule 132)

OPINION RULE (BAR)

GENERAL RULE: As a general rule, the opinion of a witness is not admissible. An opinion is an inference or
conclusion drawn from facts observed.

EXCEPTIONS:

1. OPINION OF ORDINARY WITNESS: The opinion of a witness for which proper basis is given, may he
received in evidence regarding: (a) the identity of a person about whom he has adequate knowledge; (b) a handwriting
with which he has sufficient familiarity; and (c) the mental sanity of a person with whom he is sufficiently
acquainted. The witness may also testify on his impressions of the emotion, behavior, condition or appearance of a person
(Rule 130, Sec. 50, Rules of Court).

2. OPINION OF EXPERT WITNESS: The opinion of a witness on a matter requiring special knowledge, skill,
experience or training which he is shown to possess, may be received in evidence (Rule 130, Sec. 49, Rules of Court).

CHARACTER EVIDENCE

Character is what the person really is, reputation is what he is supposed to be in accordance with what
people say he is, and is dependent on how people perceive a person to be. Character evidence is, as a rule, not
admissible (Rule 130, Sec. 51, Rules of Court)

41
 A. CRIMINAL CASES

Character evidence not generally admissible; exceptions:—

A. IN CRIMINAL CASES:
(1) The accused may prove his good moral character which is pertinent to the moral trait involved in the offense
charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which is pertinent to the
moral trait involved in the offense charged.
(3) The good or bad moral character of the offended party may be proved if it tends to establish in any
reasonable degree the probability or improbability of the offense charged. (Sec. 51 Rule 130)

RAPE SHIELD RULE: In prosecutions for rape, evidence of complainant's past sexual conduct, opinion thereof or of
his/her reputation shall not be admitted unless, and only to the extent that the court finds, that such evidence is material
and relevant to the case. (R.A. No. 8505, Sec. 6).

B. CIVIL CASES: Evidence of the moral character of a party in a civil case is admissible only when pertinent
to the issue of character involved in the case (Rule 130, Sec 51(b), Rules of Court).

WHEN A PRIVATE WRITING REQUIRES AUTHENTICATION; PROOF OF A PRIVATE WRITING:

Before any private document offered as authentic is received in evidence, its due execution and authenticity must be
proved either by:
(a) anyone who saw the document executed or written; or
(b) evidence of the genuineness of the signature or handwriting of the maker (Rule 132, Sec. 20, Rules of Court).

Any other private document need only be identified as that which it is claimed to be. (Sec.20 Rule 132)

WHEN EVIDENCE OF AUTHENTICITY OF A PRIVATE WRITING IS NOT REQUIRED: The requirement of

authentication of a private document is excused only in four instances, specifically:
(a) when the document is an ancient one within the context of Section 21, Rule 132 of the Rules;
(b) when the genuineness and authenticity of the actionable document have not been specifically denied under oath
by the adverse party;
(c) when the genuineness and authenticity of the document have been admitted; or
(d) When such genuineness and due execution are immaterial to the issue;

REQUISITES OF AN ANCIENT DOCUMENT:

1. The private document is more than 30 years old;
2. It is produced from a custody in which it would naturally be found if genuine;
3. It is unblemished by any alterations or circumstances of suspicious.

Public documents are admissible without further proof of their due execution and genuineness. Under Section
24 of Rule 133 of the Rules, the following can be used to prove official record:

1. If it is a domestic record, it may be evidenced by:

a. An official publication

b. A copy thereof attested by the officer having the custody of the record or his deputy with a certificate that
such officer has the custody.

2. If it is a foreign record, by the officer having the custody of the record or his deputy, accompanied by a
certificate that such officer has the custody, which may be made by the secretary of the embassy or legation, consul-
general, consul, vice-consul, or consular agent or foreign service officer and with a seal of his office.

ADMISSIBILITY OF FOREIGN PUBLIC DOCUMENTS: Absent the attestation of the officer having the legal
custody of the records and the certificate to that effect by a Philippine foreign service officer, a mere copy of the foreign
document is NOT admissible as evidence to prove foreign law. (Wildvalley Shipping Co. Ltd. v. CA [2000]).

PROVING FOREIGN LAWS: To prove these foreign law it must be prove either:
1] by its official publication, or
2] by its duly attested and authenticated copy, pursuant to Secs. 24 and 25 of Rule 132 of the ROC which states:

PEOPLE VS. NOEL ENOJAS

G.R. NO. 204894, MARCH 10, 2014

The text messages are admissible applying the Rules on Electronic Evidence to criminal actions for murder.
(A.M. No. 01-7-01-SC, RE: Expansion of the Coverage of the Rules on Electronic Evidence, September 24, 2002)

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.

42
 1. The term "electronic data message" or "electronic document" under the Electronic Document Act of 2000
does not include a facsimile transmission. It is not the functional equivalent of an electronic document. When the
Congress drafted the law, it excluded the earlier forms of technology like telegraph, telex, and telecopy (except computer-
generated faxes) when the law defined electronic data message (MCC Industrial Sales Corporation vs. Ssangyong Corporation,
G.R. No. 170633, October 17, 2007).

2. SINCE A FACSIMILE TRANSMISSION IS NOT AN "ELECTRONIC DATA MESSAGE" OR AN "ELECTRONIC

DOCUMENT," AND CANNOT BE CONSIDERED AS ELECTRONIC EVIDENCE BY THE COURT, WITH GREATER REASON
IS A PHOTOCOPY OF SUCH A FAX TRANSMISSION NOT ELECTRONIC EVIDENCE. In the present case, therefore, Pro
Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of
the original fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate
courts (MCC Industrial Sales Corporation vs. Ssangyong Corporation, G.R. No. 170633, October 17, 2007, Nachura, J.)

3. THE SUPREME COURT FOUND INADMISSIBLE IN EVIDENCE THE FILING OF PLEADINGS THROUGH
FAX MACHINES (ELLERY MARCH G. TORRES VS. PHIL. AMUSEMENT AND GAMING CORPORATION, G.R. NO. 193531,
DECEMBER 14, 2011, PERALTA, J.).

ELECTRONIC DOCUMENTS
VIS-À-VIS
THE HEARSAY RULE

Under the Rules on Electronic Evidence, a memorandum, report, record or data compilation of acts, events,
conditions, opinions, or diagnoses, made by electronic (known as electronic business records) is an exception to the
hearsay rule provided that it is:

1. Made at or near the time of or from the transmission or supply of information;

2. Made by a person with knowledge thereof;
3. Kept in the regular course or conduct of business activity;
4. Such was the regular practice.

5. EPHEMERAL EVIDENCE

EPHEMERAL ELECTRONIC COMMUNICATION pertains 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. (Rule 2, Sec. 1 (k) Rules on Electronic Evidence)

Communications of this type shall be proven by the testimony of a person who was a party to the same or has
personal knowledge thereof in the absence of the availability of such witnesses, other competent evidence may be admitted.

Q: When is an electronic evidence regarded as being the equivalent of an original document under the Best
Evidence Rule? (Question No. XIX, 2003 BAR Examination)

An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule if
it is a printout or output readable by sight or other means, shown to reflect the data accurately. (Sec. 1 of Rule 4).

JUDICIAL AFFIDAVIT RULE (A.M. NO. 12-8-8-SC)

SCOPE AND WHERE APPLICABLE: This Rule shall apply to all actions, proceedings, and incidents requiring the
reception of evidence before: (1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the Municipal
Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts but shall not apply to small claims
cases under A.M. 08-8-7-SC; (2) The Regional Trial Courts and the Shari'a District Courts; (3) The Sandiganbayan, the
Court of Tax Appeals, the Court of Appeals, and the Shari'a Appellate Courts; (4) The investigating officers and bodies
authorized by the Supreme Court to receive evidence, including the Integrated Bar of the Philippine (IBP); and (5) The
special courts and quasi-judicial bodies, whose rules of procedure are subject to disapproval of the Supreme Court, insofar
as their existing rules of procedure contravene the provisions of this Rule. For the purpose of brevity, the above courts,
quasi-judicial bodies, or investigating officers shall be uniformly referred to here as the "court." (Section 1 of A.M. No. 12-8-
8-SC also known as Judicial Affidavit Rule)

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:

Note: Submission of judicial affidavit before trial is not violative of due process (Ng Meng Tam vs. Chanabank)
No conflict between JAR and Demurrer to evidence (lagon v. Hon, Velasco, Feb 14, 2018)

(1) The judicial affidavits of their witnesses, which shall take the place of such witnesses' direct testimonies; and
(2) The parties' documentary or object evidence, if any, which shall be attached to the judicial affidavits and marked
as Exhibits A, B, C, and so on in the case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the cas e of
the respondent or the defendant.

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.

43
 If the government employee or official, or the requested witness, who is neither the witness of the adverse
party nor a hostile witness, unjustifiably declines to execute a judicial affidavit or refuses without just cause to make
the relevant books, documents, or other things under his control available for copying, authentication, and eventual
production in court, the requesting party may avail himself of the issuance of a subpoena ad testificandum or duces
tecum under Rule 21 of the Rules of Court.

Judicial Affidavit Rule NOT APPLICABLE TO: Hostile witness, Adverse party and Child witness. Section 5 of the
JAR expressly excludes from its application adverse party and hostile witnesses. For the presentation of these types of
witnesses, the provisions on the Rules of Court under the Revised Rules of Evidence and all other correlative rules including
the modes of deposition and discovery rules shall apply. (Ng Men Tam vs. China Banking Corp., G.R. No. 214054, August 5,
2015 )

APPLICATION TO CRIMINAL ACTIONS:

(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the penalty involved; or
(3) With respect to the civil aspect of the criminal 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. (Section 9 of A.M. No. 12-8-8-SC also known as
Judicial Affidavit Rule)

EFFECT OF NON-COMPLIANCE: A party who fails to submit the required judicial affidavits and exhibits on
time shall be deemed to have waived their submission. The court may, however, allow only once the late submission of
the same provided, the delay is for a valid reason, would not unduly prejudice the opposing party, and the defaulting party
pays a fine of not less than P 1,000.00 nor more than P 5,000.00 at the discretion of the court. The court shall not consider
the affidavit of any witness who fails to appear at the scheduled hearing of the case as required. Counsel who fails to appear
without valid cause despite notice shall be deemed to have waived his client's right to confront by cross-examination the
witnesses there present. The court shall not admit as evidence judicial affidavits that do not conform to the content
requirements of Section 3 and the attestation requirement of Section 4 above.

SWORN ATTESTATION OF THE LAWYER (SEC. 4)

(a) The judicial affidavit shall contain a sworn attestation at the end, executed by the lawyer who conducted
or supervised the examination of the witness, to the effect that: (1) He faithfully recorded or caused to be
recorded the questions he asked and the corresponding answers that the witness gave; and (2) Neither he nor any other
person then present or assisting him coached the witness regarding the latter's answers.

(b) A false attestation shall subject the lawyer mentioned to disciplinary action, including disbarment.

The court may, however, allow only once the subsequent submission of the complaint replacement affidavits
before the hearing or trial provided the delay is for a valid reason and would not unduly prejudice the opposing party and
provided further, that public or private counsel responsible for their preparation and submission pays a fine of not less than
P 1,000.00 nor more than P 5,000.00, at the discretion of the court. (Section 10 of A.M. No. 12-8-8-SC also known as Judicial
Affidavit Rule)

A.M.No 17-11-03-SC
RULE ON CYBERCRIME WARRANTS

Section 2.1. Venue of Criminal Actions. - The criminal actions for violation of Section 4 (Cybercrime offenses)
and/or Section 5 (Other offenses), Chapter II of RA 10175, shall be filed before the designated cybercrime court of the
province or city where the offense or any of its elements is committed", or where any part of the computer system used is
situated, or where any of the damage caused to a natural or juridical person took place: Provided, that the court where the
criminal action is first filed shall acquire jurisdiction to the exclusion of the other courts.

All other crimes defined and penalized by the Revised Penal Code, as amended, and other special laws, committed by,
through, and with the use of ICT, as provided under Section 6, Chapter II of RA 10175, shall be filed before the regular or
other specialized regional trial courts, as the case may be.

Section 2.2. Where to File an Application for a Warrant. - An application for a warrant under this Rule concerning a
violation of Section 4 (Cybercrime Offenses) and/or Section 5 (Other Offenses), Chapter II of RA 10175 shall be filed by the
law enforcement authorities before any of the designated cybercrime courts of the province or the city where the offense or
any of its elements has been committed, is being committed, or is about to be committed, or where any part of the computer
system used is situated, or where any of the damage caused to a natural or juridical person took place.

However, the cybercrime courts in Quezon City, the City of Manila, Makati City, Pasig City, Cebu City, Iloilo City,
Davao City and Cagayan De Oro City shall have the special authority to act on applications and issue warrants which
shall be enforceable nationwide and outside the Philippines.

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On the other hand, an application for a warrant under this Rule for violation of Section 6, Chapter II of RA 10175 (all crimes
defined and penalized by the Revised Penal Code, as amended, and other special laws, if committed by, through, and with the
use of ICT) shall be filed by the law enforcement authorities with the regular or other specialized regional trial courts, as the
case may be, within its territorial jurisdiction in the places above-described.

Q: what are the 4 kinds of warrant under the Rule on Cyber warrants?
A:
1. Warrant to Disclose Computer Data (WDCD). - A WDCD is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to issue
an order to disclose and accordingly, require any person or service provider to disclose or submit subscriber's information,
traffic data, or relevant data in his/her or its possession or control.

2. Warrant to Intercept Computer Data (WICD). - A WICD is an order in writing issued in the name of the
People of the Philippines, signed by a judge, upon application of law enforcement authorities, authorizing the latter to carry
out any or all of the following activities: (a) listening to, (b) recording, (c) monitoring, or (d) surveillance of the content of
communications, including procuring of the content of computer data, either directly, through access and use of a computer
system or indirectly, through the use of electronic eavesdropping or tapping devices, at the same time that the
communication is occurring.

3. Warrant to Search, Seize and Examine Computer Data (WSSECD). - A Warrant to Search, Seize and
Examine Computer Data (WSSECD) is an order in writing issued in the name of the People of the Philippines, signed by a
judge, upon application of law enforcement authorities, authorizing the latter to search the particular place for items to be
seized and/or examined.

4. Examination where lawful possession of device is obtained; Warrant to Examine Computer Data
(WECD). - Upon acquiring possession of a computer device or computer system via a lawful warrantless arrest, or by any
other lawful method, law enforcement authorities shall first apply for a warrant before searching the said computer device or
computer system for the purpose of obtaining for forensic examination the computer data contained therein. The warrant
therefor shall be denominated as a Warrant to Examine Computer Data (WECD).

Off-site and On-site Principle; Return of Items Seized Off-site. — Law enforcement authorities shall, if the
circumstances so allow, endeavor to first make a forensic image of the computer data on-site as well as limit their search to
the place specified in the warrant. Otherwise, an off-site search may be conducted, provided that a forensic image is,
nevertheless, made, and that the reasons for the said search are stated in the initial return.

A person whose computer devices or computer system have been searched and seized off-site may, upon motion, seek the
return of the said items from the court issuing the WSSECD: Provided, that a forensic image of the computer data subject of
the WSSECD has already been made. The court may grant the motion upon its determination that no lawful ground exists to
otherwise withhold the return of such items to him.

REVISED GUIDELINES FOR

CONTINUOUS TRIAL OF CRIMINAL CASES

I. Applicability

The Revised Guidelines for Continuous Trial of Criminal Cases (Revised Guidelines) shall apply to all newly-filed criminal
cases, including those governed by Special Laws and Rules (Comprehensive Dangerous Drugs Act of 2002,. Cybercrime
Prevention Act of 2012, Rules of Procedure for Environmental Cases, Rules of Procedure for Intellectual Property Rights Cases,
and Criminal Cases cognizable by Family Courts and Commercial Courts.), in the First and Second Level Courts, the
Sandiganbayan and the Court of Tax Appeals as. of effectivity date. The Revised Guidelines shall also apply to pending
criminal cases with respect to the remainder of the proceedings.

Unless otherwise specifically provided herein, the Revised Guidelines shall not apply to criminal cases filed
under the Rule on Summary Procedure.

2. Motions

(a) Motion for Inhibition, - Motions for inhibition based on grounds provided for under Rule 137 shall be resolved
immediately or within two (2) calendar days from date of their filing.

(b) Prohibited Motions.'- Prohibited motions shall be denied outright before the scheduled arraignment without need of
comment and/or opposition.

The following motions are prohibited:

i. Motion for judicial determination of probable cause.

ii. Motion for preliminary investigation filed beyond the five (5)-day reglementary period in inquest
proceedings under Sec 6, Rule 112, or when preliminary investigation is required under Sec 8, Rule 112, or
allowed in inquest proceedings and the accused failed to participate in the preliminary investigation despite
due notice.

iii. Motion for reinvestigation of the prosecutor recommending the filing of information once the information
has been filed before the court (1) if the motion is filed without prior leave of court, (2) when prehtnrnary
investigation is not required under Sec. 8, Rule 112; and (3) when the regular preliminary investigation is
required and has been actually conducted, and the grounds relied upon in the motion are not meritorious,
such as issues of credibility, admissibility of evidence, innocence of the accused, or lack of due process when
the accused was actually notified, among others.
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 iv. Motion to quash information when the ground is not one of those stated in Sec. 3, Rule 117.

v. Motion for bill of particulars that does not conform to Sec. 9, Rule 116.

vi. Motion to suspend the arraignment based on grounds not stated under Sec. 11, Rule 116.

vii. Petition to suspend the criminal action on the ground of prejudicial question, when no civil case has been
filed, pursuant to Sec. 7, Rule 111.

(c) Meritorious Motions. - Motions that allege plausible grounds supported by relevant documents and/or competent
evidence, except those that are already covered by the Revised Guidelines, are meritorious motions, such as:

i. Motion to withdraw information, or to downgrade the charge in the original information, or to exclude an
accused originally charged therein, filed by the prosecution as a result of a reinvestigation, reconsideration,
and review;

ii. Motion to quash warrant of arrest;

iii. Motion to suspend arraignment on the ground of an unsound mental condition under Sec. 11(a), Rule
116;

iv. Motion to suspend proceedings on the ground of a prejudicial question where a civil case was filed prior to
the criminal case under Sec. 11(a), Rule 116;

v. Motion to quash information 'on the grounds that the facts charged do not constitute an offense, lack of
jurisdiction, extinction of criminal action or liability, or double jeopardy under Sec 3, par. (a), (b), (g), and (i),
Rule 117;

vi. Motion to discharge accused as a state witness under Sec. 17, Rule 119;

vii. Motion to quash search warrant Under Sec 14, Rule 126, or motion to suppress evidence; and

viii. Motion to dismiss on the ground that the criminal case is a Strategic Law Suit Against Public
Participation (SLAPP) under Rule 6 of the Rules of Procedure for Environmental Cases.

The comment of the adverse party shall be filed within a non-extendible period of ten (10) calendar
days from notice/receipt of the order of the court to file the same, and the court shall resolve the motion
within a non-extendible period of ten (10) calendar days from the expiration of the ten (10)-day period, with
or without comment The court, at its discretion, may set the motion for hearing within a non- extendible
period of ten (10) calendar days from the expiration of the ten (10)-day period to file comment, in which case
the same j shall be submitted for resolution after the termination of the hearing, and shall be resolved within
a non-extendible period of ten (10) calendar days thereafter. Reply and memorandum need not be submitted.

In case of a motion to discharge accused as state witness under Sec 17, Rule 119, where the
prosecution is required to present evidence in support thereof, such motion shall be submitted for resolution
from the termination of the hearing, and shall be resolved within a non-extendible period of ten (10) calendar
days thereafter.

The motion for reconsideration of the resolution of a meritorious motion shall be filed within a non-
extendible period of five (5) calendar days from receipt of such resolution, and the adverse party shall be
given an equal period of five (5) calendar days from receipt of the motion for reconsideration within which to
submit its comment
Thereafter, the motion for reconsideration shall be resolved by the court within a non-extendible period of
five (5) calendar days from the expiration of the five (5)-day period to submit the comment.

Motions that do not conform to the requirements stated above shall be considered unmeritorious and
shall be denied outright.'

(d) Motion for postponement. - A motion for postponement is prohibited, except if it is based on acts of God,
force majeure or physical inability of the witness to appear and testify. If the motion is granted based on such
exceptions, the moving party shall be warned that the presentation of its evidence must still be finished on
the dates previously agreed upon.

A motion for postponement, whether written or oral, shall at all time.es be accompanied by the
original official receipt from the Office of the Clerk of Court. evidencing payment of the postponement fee
under Sec 21 (b), Rule 141, to be submitted either at the time of the filing of said motion or not later than the
next hearing date. The Clerk of Court shall, not accept the motion unless accompanied by the original
receipt.

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