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2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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D an W& Riano
S'LLAB(S )OR 2011 BAR E*AMINATIONS

REMEDIAL LAW

I& + n ra$ ,rinci-$ s A. Concept of Remedial Law B. Substantive Law as Distinguished from Remedial Law C. Rule-making ower of the Supreme Court !. Limitations on the rule-making power of the Supreme Court ". ower of the Supreme Court to amend and suspend procedural rules D. #ature of hilippine Courts !. $eaning of a court ". Court as distinguished from a %udge &. Classification of hilippine courts '. Courts of original and appellate %urisdiction (. Courts of general and special %urisdiction ). Constitutional and statutor* courts +. Courts of law and e,uit* -. rinciple of %udicial hierarch* .. Doctrine of non-interference or doctrine of %udicial stabilit* II& .%ris#iction A. /urisdiction over the parties !. 0ow %urisdiction over the plaintiff is ac,uired ". 0ow %urisdiction over the defendant is ac,uired B. /urisdiction over the sub%ect matter !. $eaning of %urisdiction over the sub%ect matter ". /urisdiction versus the e1ercise of %urisdiction &. 2rror of %urisdiction as distinguished from error of %udgment '. 0ow %urisdiction is conferred and determined (. Doctrine of primar* %urisdiction ). Doctrine of adherence of %urisdiction +. 3b%ections to %urisdiction over the sub%ect matter -. 2ffect of estoppel on ob%ections to %urisdiction C. /urisdiction over the issues D. /urisdiction over the res or propert* in litigation 2. /urisdiction of Courts !. Supreme Court ". Court of Appeals &. Court of 4a1 Appeals '. Sandiganba*an (. Regional 4rial Courts ). 5amil* Courts +. $etropolitan 4rial Courts6$unicipal 4rial Courts -. Shariah Courts 5. /urisdiction over small claims7 cases covered b* the rules on Summar* rocedure and Baranga* Conciliation 8. 4otalit* Rule III& /i0i$ ,roc #%r A. Actions !. $eaning of ordinar* civil actions ". $eaning of special civil actions &. $eaning of criminal actions '. Civil actions versus Special proceedings (. ersonal actions and real actions ). Local and transitor* actions +. Actions in rem7 in personam and ,uasi in rem B. Cause of Action !. $eaning of cause of action ". Right of Action versus Cause of action &. 5ailure to state a cause of action '. 4est of the sufficienc* of a cause of action (. Splitting a single cause of action and its effects ). /oinder and mis%oinder of causes of action C. arties to Civil Actions !. Real arties in interest9 :ndispensable parties9 Representatives as parties9

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

#ecessar* parties9 :ndigent arties9 Alternative defendants ". Compulsor* and permissive %oinder of parties &. $is%oinder and non-%oinder of parties '. Class Suit (. Suits against entities without %uridical personalit* ). 2ffect of death of part* litigant D. ;enue !. ;enue versus /urisdiction ". ;enue of real actions &. ;enue of personal actions '. ;enue of actions against nonresidents (. <hen the Rules on ;enue Do not Appl* ). 2ffects of Stipulations on ;enue 2. leadings !. =inds of leadings a. Complaint b. Answer >!? #egative defenses >"? #egative pregnant >&? Affirmative Defenses c. Counterclaims >!? Compulsor* counterclaim >"? ermissive counterclaim >&? 2ffect on the Counterclaim when the complaint is dismissed d. Cross-claims e. 4hird >fourth7 etc.? part* complaints f. Complaint-in-intervention g. Repl* ". leadings allowed in small claim cases and cases covered b* the rules on summar* procedure &. arts of a pleading a. Caption b. Signature and address c. ;erification and certification against forum shopping >!? Re,uirements of a corporation e1ecuting the verification6certificati on of non-forum shopping d. 2ffect of the signature of counsel in a pleading '. Allegations in a pleading a. $anner of making allegations >!? Condition precedent

>"? 5raud7 mistake7 malice7 intent7 knowledge and other condition of the mind7 %udgments7 official documents or acts b. leading an actionable document c. Specific denials >!? 2ffect of failure to make specific denials >"? <hen a specific denial re,uires an oath (. 2ffect of failure to plead !. 5ailure to plead defenses and ob%ections ". 5ailure to plead a compulsor* counterclaim and cross-claim ). Default a. <hen a declaration of default is proper b. 2ffect of an order of default c. Relief from an order of default d. 2ffect of a partial default e. 21tent of relief f. Actions where default are not allowed +. 5iling and Service of pleadings :. a*ment of docket fees ::. 5iling versus service of pleadings :::. eriods of filing of pleadings :;. $anner of filing ;. $odes of service >!? ersonal service >"? Service b* mail >&? Substituted service >'? Service of %udgments7 final orders or resolutions >(? riorities in modes of service and filing >)? <hen service is deemed complete >+? roof of filing and service -. Amendment a. Amendment as a matter of right b. Amendments b* leave of court c. 5ormal amendment d. Amendments to conform to or authori@e presentation of evidence e. Different from supplemental pleadings f. 2ffect of amended pleading 5. Summons

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

!. #ature and purpose of summons in relation to actions in personam7 in rem and ,uasi in rem ". ;oluntar* appearance &. ersonal service '. Substituted service (. Constructive service >b* publication? a. Service upon a defendant where his identit* is unknown or where his whereabouts are unknown b. Service upon residents temporaril* outside the hilippines ). 21tra-territorial service7 when allowed +. Service upon prisoners and minors -. roof of service 8. $otions !. $otions in general a. Definition of a motion b. $otions versus pleadings c. Contents and form of motions d. #otice of hearing and hearing of motions e. 3mnibus motion rule f. Litigated and e1 parte motions g. ro-forma motions ". $otions for Bill of articulars a. urpose and when applied for b. Actions of the court c. Compliance with the order and effect of noncompliance d. 2ffect on the period to file a responsive pleading &. $otion to Dismiss a. 8rounds b. Resolution of $otion c. Remedies of plaintiff when the complaint is dismissed d. Remedies of the defendant when the motion is denied e. 2ffect of dismissal of complaint on certain grounds f. <hen grounds pleaded as affirmative defenses g. Bar b* dismissal h. Distinguished from demurrer to evidence under Rule && 0. Dismissal of Actions !. Dismissal upon notice b* plaintiff9 4wo-dismissal rule ". Dismissal upon motion b* plaintiff9 effect on e1isting counterclaim &. Dismissal due to the fault of plaintiff '. Dismissal of counterclaim7 crossclaim or third-part* complaint

:. re-trial !. Concept of pre-trial ". #ature and purpose &. #otice of pre-trial '. Appearance of parties9 effect of failure to appear (. re-trial brief9 effect of failure to appear ). Distinction between pre-trial in civil case and pre-trial in criminal case +. Alternative Dispute Resolution >ADR? /. :ntervention !. Re,uisites for intervention ". 4ime to intervene &. Remed* for the denial of motion to intervene =. Subpoena !. Subpoena duces tecum ". Subpoena ad testificandum &. Service of subpoena '. Compelling attendance of witnesses9 Contempt (. Auashing of subpoena L. $odes of Discover* !. Depositions pending action9 Depositions before action or pending appeal a. $eaning of deposition b. Bses9 Scope of e1amination c. <hen ma* ob%ections to admissibilit* be made d. <hen ma* taking of deposition be terminated or its scope limited ". <ritten interrogatories to adverse parties a. Conse,uences of refusal to answer b. 2ffect of failure to serve written interrogatories &. Re,uest for Admission a. :mplied admission b* adverse part* b. Conse,uences of failure to answer re,uest for admission c. 2ffect of admission d. 2ffect of failure to file and serve re,uest for admission '. roduction or inspection of documents or things (. h*sical and mental e1amination of persons ). Conse,uences of refusal to compl* with modes of discover* $. 4rial !. Ad%ournments and postponements ". re,uisites of motion to postpone trial a. for absence of evidence

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

b. for illness of part* or counsel &. Agreed statement of facts '. 3rder of trial9 reversal of order (. Consolidation or Severance of hearing or trial ). Delegation of reception of evidence +. 4rial b* commissioners a. Reference b* consent or ordered on motion b. owers of the commissioner c. CommissionerCs report9 notice to parties and hearing on the report #. Demurrer to 2vidence !. 8round ". 2ffect of denial &. 2ffect of grant '. <aiver of right to present evidence (. Demurrer to evidence in a civil case versus demurrer to evidence in a criminal case 3. /udgments and 5inal 3rders !. /udgment without trial ". Contents of a %udgment &. /udgment on the pleadings '. Summar* %udgments a. for the claimant b. for the defendant c. when the case not full* ad%udicated d. affidavits and attachments (. /udgment on the pleadings versus summar* %udgments ). Rendition of %udgments and final orders +. 2ntr* of %udgment and final order . ost /udgment Remedies

e. :ssues to be raised on appeal f. eriod of appeal g. erfection of appeal h. Appeal from %udgments or final orders of the $4C i. Appeal from %udgments or final orders of the R4C %. Appeal from %udgments or final orders of the CA k. Appeal from %udgments or final orders of the C4A l. Review of final %udgments or final orders of the C3A m. Review of final %udgments or final orders of the C3$2L2C n. Review of final %udgments or final orders of the CSC o. Review of final %udgments or final orders of the 3mbudsman p. Review of final %udgments or final orders of the #LRC ,. Review of final %udgments or final orders of ,uasi%udicial agencies &. Relief from %udgments7 orders and other proceedings a. 8rounds for availing of the remed* b. 4ime to file petition c. Contents of petition '. Annulment of /udgments or final orders and resolutions a. 8rounds for annulment b. eriod to file action c. 2ffects of %udgment of annulment (. Collateral attack of %udgments

!. $otion for #ew 4rial or reconsideration a. 8rounds b. <hen to file c. Denial of the motion9 effect d. 8rant of the motion9 effect e. Remed* when motion is denied7 5resh !(-da* period rule ". Appeals in 8eneral a. /udgments and final orders sub%ect to appeal b. $atters not appealable c. Remed* against %udgments and orders which are not appealable d. $odes of appeal >!? 3rdinar* appeal >"? etition for review >&? etition for review on certiorari

A. 21ecution7 Satisfaction and 2ffect of /udgments !. Difference between finalit* of %udgment for purposes of appeal9 for purposes of e1ecution ". <hen e1ecution shall issue a. 21ecution as a matter of right b. Discretionar* e1ecution &. 0ow a %udgment is e1ecuted a. 21ecution b* motion or b* independent action b. :ssuance and contents of a writ of e1ecution c. 21ecution of %udgments for mone* d. 21ecution of %udgments for specific acts e. 21ecution of special %udgments

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

f. 2ffect of lev* on third persons '. roperties e1empt from e1ecution (. roceedings where propert* is claimed b* third persons a. in relation to third part* claim in attachment and replevin ). Rules on Redemption +. 21amination of /udgment 3bligor <hen /udgment is unsatisfied -. 21amination of 3bligor of /udgment 3bligor .. 2ffect of /udgment or 5inal 3rders !D. 2nforcement and 2ffect of 5oreign /udgments or 5inal 3rders R. rovisional Remedies !. #ature of provisional remedies ". /urisdiction over provisional remedies &. reliminar* Attachment a. 8rounds for issuance of writ of attachment b. Re,uisites c. :ssuance and contents of order of attachment9 affidavit and bond d. Rule on prior or contemporaneous service of summons e. $anner of attaching real and personal propert*9 when propert* attached is claimed b* third person f. Discharge of attachment and the counter-bond g. Satisfaction of %udgment out of propert* attached '. reliminar* :n%unction a. Definitions and DifferencesE reliminar* :n%unction and 4emporar* Restraining 3rder b. Re,uisites c. =inds of :n%unction d. <hen writ ma* be issued e. 8rounds for issuance of preliminar* in%unction f. 8rounds for ob%ection to7 or for the dissolution of in%unction or restraining order g. Duration of 4R3 h. :n relation to RA -.+(7 Ban on issuance of 4R3 or <rit of :n%unction in cases involving government infrastructure pro%ects i. Rule on prior or contemporaneous service of summons in relation to attachment (. Receivership

a. Cases when receiver ma* be appointed b. Re,uisites c. Re,uirements before issuance of an 3rder d. 8eneral powers of a receiver e. 4wo >"? kinds of bonds f. 4ermination of receivership ). Replevin a. <hen ma* writ be issued b. Re,uisites c. Affidavit and bond9 Redeliver* Bond d. SheriffCs dut* in the implementation of the writ9 when propert* is claimed b* third part* S. Special Civil Actions !. #ature of special civil actions ". 3rdinar* civil actions versus special civil actions &. /urisdiction and venue '. :nterpleader a. Re,uisites for interpleader b. <hen to file (. Declarator* Reliefs and Similar Remedies a. <ho ma* file the action b. Re,uisites of action for declarator* relief c. <hen court ma* refuse to make %udicial declaration d. Conversion to ordinar* action e. roceedings considered as similar remedies A. Reformation of an instrument B. Consolidation of ownership C. Auieting of title to real propert* ). Review of /udgments and 5inal 3rders or Resolution of the C3$2L2C and C3A a. Application of Rule )( under Rule )' b. Distinction in the application of Rule )( to %udgments of the C3$2L2C and C3A and the application of Rule )( to other tribunals7 persons and officers +. Certiorari7 rohibition and $andamus a. Definitions and distinctions b. Re,uisites

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

c. <hen petition for certiorari7 prohibition and mandamus is proper d. :n%unctive relief e. Certiorari distinguished from Appeal b* Certiorari9 rohibition and $andamus distinguished from :n%unction9 when and where to file petition f. 21ceptions to filing of motion for reconsideration before filing petition g. Reliefs petitioner is entitled to h. Actions63missions of $4C6R4C in election cases i. <here to file petition %. 2ffects of filing of an unmeritorious petition -. Auo <arranto a. Distinguish from Auo <arranto in the 3mnibus 2lection Code b. <hen government commence an action against individuals c. <hen individual ma* commence an action d. /udgment in Auo <arranto action e. Rights of a person ad%udged entitled to public office .. 21propriation a. $atters to allege in complaint for e1propriation b. 4wo stages in ever* action for e1propriation c. <hen plaintiff can immediatel* enter into possession of the real propert*7 in relation to RA -.+' d. #ew s*stem of immediate pa*ment of initial %ust compensation e. Defenses and ob%ections f. 3rder of 21propriation g. Ascertainment of %ust compensation h. Appointment of Commissioners9 CommissionerCs report9 Court action upon commissionerCs report i. Rights of plaintiff upon %udgment and pa*ment %. 2ffect of recording of %udgment !D. 5oreclosure of Real 2state $ortgage

a. /udgment on foreclosure for pa*ment or sale b. Sale of mortgaged propert*9 effect c. Disposition of proceeds of sale d. Deficienc* %udgment >!? :nstances when court cannot render deficienc* %udgment e. /udicial foreclosure versus e1tra%udicial foreclosure f. 2,uit* of redemption versus right of redemption !!. artition a. <ho ma* file complaint9 who should be made defendants b. $atters to allege in the complaint for partition c. 4wo >"? stages in ever* action for partition d. 3rder of partition and partition b* agreement e. artition b* commissioners9 Appointment of commissioners7 CommissionerCs report9 Court action upon commissionerCs report f. /udgment and its effects g. artition of personal propert* h. rescription of action !". 5orcible 2ntr* and Bnlawful Detainer a. Definitions and Distinction b. Distinguished from accion publiciana and accion reinvindicatoria c. 0ow to determine %urisdiction in accion publiciana and accion reinvindicatoria d. <ho ma* institute the action and when9 against whom the action ma* be maintained e. leadings allowed f. Action on the complaint g. <hen demand is necessar* h. reliminar* in%unction and preliminar* mandator* in%unction i. Resolving defense of ownership %. 0ow to sta* the immediate e1ecution of %udgment k. Summar* procedure7 prohibited pleadings !&. Contempt a. =inds of contempt b. urpose and nature of each

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

c. Remed* against direct contempt9 penalt* d. Remed* against indirect contempt9 penalt* e. 0ow contempt proceedings are commenced f. Acts deemed punishable as indirect contempt g. <hen imprisonment shall be imposed h. Contempt against ,uasi%udicial bodies IV& S- cia$ ,roc #ings

5. Claims Against the 2state !. 4ime within which claims shall be filed9 e1ceptions ". Statute of #on-claims &. Claim of 21ecutor or administrator against the 2state '. a*ment of Debts 8. Actions b* and against 21ecutors and Administrators !. Actions that ma* be brought against e1ecutors and administrators ". Re,uisites before creditor ma* bring an action for recover* of propert* fraudulentl* conve*ed b* the deceased 0. Distribution and artition !. Li,uidation ". ro%ect of artition &. Remed* of an heir entitled to residue but not given his share '. :nstances when probate court ma* issue writ of e1ecution :. 4rustees !. Distinguished from e1ecutor6administrator ". Conditions of the Bond &. Re,uisites for the removal and resignation of a trustee '. 8rounds for removal and resignation of a trustee (. 21tent of authorit* of trustee /. 2scheat !. <hen to file ". Re,uisites for filing of petition &. Remed* of respondent against petition9 period for filing a claim =. 8uardianship !. 8eneral powers and duties of guardians ". Conditions of the bond of the guardian &. Rule on 8uardianship over minor L. Adoption !. Distinguish domestic adoption from inter-countr* adoption ". Domestic Adoption Act a. effects of adoption b. instances when adoption ma* be rescinded c. effects of rescission of adoption &. :nter-countr* Adoption a. when allowed b. functions of the R4C c. Fbest interest of the minorF standard $. <rit of 0abeas Corpus

A. Settlement of 2state of Deceased ersons7 ;enue and rocess !. <hich court has %urisdiction ". ;enue in %udicial settlement of estate &. 21tent of %urisdiction of robate Court '. owers and Duties of robate Court B. Summar* Settlement of 2states !. 21tra%udicial settlement b* agreement between heirs7 hen allowed ". 4wo-*ear prescriptive period &. Affidavit of Self-ad%udication b* sole heir '. Summar* settlement of estates of small value7 when allowed (. Remedies of aggrieved parties after e1tra-%udicial settlement of estate C. roduction and robate of <ill !. #ature of probate proceeding ". <ho ma* petition for probate9 persons entitled to notice D. Allowance or Disallowance of <ill !. Contents of petition for allowance of will ". 8rounds for disallowing a will &. Reprobate9 Re,uisites before will proved outside allowed in the hilippines9 effects of probate 2. Letters 4estamentar* and of Administration !. <hen and 4o whom letters of administration granted ". 3rder of preference &. 3pposition to issuance of letters testamentar*9 simultaneous filing of petition for administration '. owers and duties of 21ecutors and Administrators9 restrictions on the powers (. Appointment of Special Administrator ). 8rounds for removal of administrator

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

!. Contents of the petition ". Contents of the Return &. Distinguish peremptor* writ from preliminar* citation '. <hen not proper6applicable (. <hen writ disallowed6discharged ). Distinguish from writ of Amparo and 0abeas Data +. Rules on Custod* of $inors and <rit of 0abeas Corpus in Relation to Custod* of $inors >A$ #o. D&-D'-D'SC? #. <rit of Amparo >A$ #o. D+-.-!"-SC? !. Coverage ". Distinguish from habeas corpus and habeas data &. Differences between Amparo and search warrant '. <ho ma* file (. Contents of return ). 2ffects of failure to file return +. 3mnibus waiver rule -. rocedure for hearing .. :nstitution of separate action !D. 2ffect of filing of a criminal action !!. Consolidation !". :nterim reliefs available to petitioner and respondent !&. Auantum of proof in application for issuance of writ of Amparo 3. <rit of 0abeas Data >A$ #o. D--!-!)-SC? !. Scope of writ ". Availabilit* of writ &. Distinguish from 0abeas Corpus and Amparo '. <ho ma* file (. Contents of the petition ). Contents of return +. :nstances when petition be heard in chambers -. Consolidation .. 2ffect of filing of a criminal action !D. :nstitution of separate action !!. Auantum of proof in application for issuance of writ of Amparo . Change of #ame !. Differences under Rule !D&7 RA .D'- and Rule !D". 8rounds for change of name A. Absentees !. urpose of the Rule ". <ho ma* file9 when to file R. Cancellation or Correction of 2ntries in the Civil Registr* !. 2ntries sub%ect to cancellation or correction under Rule !D-7 in relation to RA .D'S. Appeals in Special roceeding

!. /udgments and orders for which appeal ma* be taken ". <hen to appeal &. $odes of appeal '. Rule on Advance Distribution V& /rimina$ ,roc #%r A. 8eneral $atters !. Distinguish /urisdiction over sub%ect matter from %urisdiction over person of the accused ". Re,uisites for e1ercise of criminal %urisdiction &. /urisdiction of Criminal courts '. <hen in%unction ma* be issued to restrain criminal prosecution B. rosecution of 3ffenses !. Criminal actions7 how instituted ". <ho ma* file them7 crimes that cannot be prosecuted de officio &. Criminal actions7 when en%oined '. Control of prosecution (. Sufficienc* of Complaint or :nformation ). Designation of 3ffense +. Cause of the Accusation -. Duplicit* of the 3ffense9 21ception .. Amendment or Substitution of complaint or information !D. ;enue of criminal actions !!. :ntervention of offended part* C. rosecution of Civil Action !. Rule on implied institution of civil action with criminal action ". <hen civil action ma* proceed independentl* &. <hen separate civil action is suspended '. 2ffect of the death of accused or convict on civil action (. re%udicial Auestion ). Rule on 5iling 5ees in civil action deemed instituted with the criminal action D. reliminar* :nvestigation !. #ature of right ". urposes of preliminar* investigation &. <ho ma* conduct determination of e1istence of probable cause '. Resolution of investigation prosecutor (. Review ). <hen warrant of arrest ma* issue +. Cases not re,uiring a preliminar* investigation -. Remedies of accused if there was no preliminar* investigation .. :n,uest

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

2. Arrest !. Arrest7 how made ". Arrest without warrant7 when lawful &. $ethod of arrest a. b* officer with warrant b. b* officer without warrant c. b* private person '. Re,uisites of a valid warrant of arrest (. Determination of robable Cause for issuance of warrant of arrest ). Distinguish probable cause of fiscal from that of a %udge 5. Bail !. #ature ". <hen a matter of right9 e1ceptions &. <hen a matter of discretion '. 0earing of application for bail in capital offenses (. 8uidelines in fi1ing amount of bail ). Bail when not re,uired +. :ncrease or Reduction of Bail -. 5orfeiture and Cancellation of bail .. Application not a bar to ob%ections in illegal arrest7 lack of or irregular preliminar* investigation !D. 0old Departure 3rder G Bureau of :mmigration <atchlist 8. Rights of the Accused !. Rights of accused at the trial ". Rights of persons under Custodial :nvestigation 0. Arraignment and lea !. Arraignment and lea7 how made ". <hen should plea of #34 8B:L4H be entered &. <hen ma* accused enter a plea of guilt* to a lesser offense '. Accused plead guilt* to capital offense7 what the court should do (. Searching :n,uir* ). :mprovident plea +. 8rounds for suspension of arraignment :. $otion to Auash !. 8rounds ". Distinguish from demurrer to evidence &. 2ffects of sustaining the motion to ,uash '. 21ception to the rule that sustaining the motion is not a bar to another prosecution (. Double /eopard* ). rovisional Dismissal /. re-trial !. $atters to be considered during pre-trial

". <hat the court should do when prosecution and offended part* agree to the plea offered b* the accused &. re-trial agreement '. #on-appearance during pre-trial (. re-trial order ). Referral of some cases for Court Anne1ed $ediation and /udicial Dispute Resolution =. 4rial !. :nstances when presence of accused is re,uired b* law ". Re,uisite before trial can be suspended on account of absence of witness &. 4rial in Absentia '. Remed* when accused is not brought to trial within the prescribed period (. Re,uisites for discharge of accused to become a state witness ). 2ffects of Discharge of accused as state witness +. Demurrer to 2vidence L. /udgment !. Re,uisites of a %udgment ". Contents of /udgment &. romulgation of %udgment9 instances of promulgation of %udgment in absentia '. <hen does %udgment become final >four instances? $. #ew 4rial or Reconsideration !. 8rounds for #ew 4rial ". 8rounds for Reconsideration &. Re,uisites before a new trial ma* be granted on ground of newl* discovered evidence '. 2ffects of granting a new trial or reconsideration (. Application of #e*pes Doctrine in Criminal Cases #. Appeal !. 2ffect of an Appeal ". <here to appeal &. 0ow appeal taken '. 2ffect of appeal b* an* of several accused (. 8rounds for dismissal of appeal 3. Search and Sei@ure !. #ature of search warrant ". Distinguish from warrant of arrest &. Application for search warrant7 where filed '. robable Cause (. ersonal e1amination b* %udge of the applicant and witnesses ). articularit* of place to be searched and things to be sei@ed +. ersonal propert* to be sei@ed

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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-. 21ceptions to search warrant re,uirement a. Search incidental to lawful arrest b. Consented Search c. Search of moving vehicle d. Check points9 bod* checks in airport e. lain view situation f. Stop and 5risk situation g. 2nforcement of Custom Laws .. Remedies from unlawful search and sei@ure . rovisional Remedies !. #ature ". =inds of provisional remedies VI& E0i# nc A. 8eneral rinciples !. Concept of 2vidence ". Scope of the Rules of 2vidence &. 2vidence in Civil Cases ;ersus 2vidence in Criminal Cases!avvphi! '. roof ;ersus 2vidence (. 5actum robans ;ersus 5actum robandum ). Admissibilit* of 2vidence a. Re,uisites for admissibilit* of evidence b. Relevance of evidence and collateral matters c. $ultiple admissibilit* d. Conditional admissibilit* e. Curative admissibilit* f. Direct and circumstantial evidence g. ositive and negative evidence h. Competent and credible evidence +. Burden of roof and Burden of 2vidence -. resumptions a. Conclusive presumptions b. Disputable presumptions .. Liberal Construction of the Rules of 2vidence !D. Auantum of 2vidence ><eight And Sufficienc* of 2vidence? a. roof be*ond reasonable doubt b. reponderance of evidence c. Substantial evidence d. Clear and convincing evidence B. /udicial #otice and /udicial Admissions !. <hat #eed #ot be roved ". $atters of /udicial #otice a. $andator* b. Discretionar* &. /udicial Admissions

a. 2ffect of %udicial admissions b. 0ow %udicial admissions ma* be contradicted '. /udicial #otice of 5oreign Laws7 Law of #ations and $unicipal 3rdinance C. 3b%ect >Real? 2vidence !. #ature of 3b%ect 2vidence ". Re,uisites for Admissibilit* &. Categories of 3b%ect 2vidence '. Demonstrative 2vidence (. ;iew of an 3b%ect or Scene ). Chain of Custod* in Relation to Section "! of the Comprehensive Dangerous Drugs Act of "DD" +. Rule on D#A 2vidence >A.$. #o. D)-!!-(-SC? a. $eaning of D#A b. Applicable for D#A testing order c. ost-conviction D#A testing9 remed* d. Assessment of probative value of D#A evidence and admissibilit* e. Rules on evaluation of reliabilit* of the D#A testing $ethodolog* D. Documentar* 2vidence !. $eaning of Documentar* 2vidence ". Re,uisites for Admissibilit* &. Best 2vidence Rule a. $eaning of the rule b. <hen applicable c. $eaning of original d. Re,uisites for introduction of secondar* evidence '. Rules on 2lectronic 2vidence >A.$. #o. D!-+-D!-SC? a. $eaning of electronic evidence9 electronic data massage b. robative value of electronic documents or evidentiar* weight9 method of proof c. Authentication of electronic documents and electronic signatures d. 2lectronic documents and the hearsa* rule e. Audio7 photographic7 video and ephemeral evidence (. arol 2vidence Rule a. Application of the parol evidence rule b. <hen parole evidence can be introduced c. Distinctions between the best evidence rule and parol evidence rule ). Authentication and roof of Documents a. $eaning of authentication

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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b. ublic and private documents c. <hen a private writing re,uires authentication9 proof of a private writing d. <hen evidence of authenticit* of a private writing is not re,uired >ancient documents? e. 0ow to prove genuineness of a handwriting f. ublic documents as evidence9 proof of official record g. Attestation of a cop* h. ublic record of a public document i. roof of lack of record %. 0ow a %udicial record is impeached k. roof of notarial documents l. 0ow to e1plain alterations in a document m. Documentar* evidence in an unofficial language 2. 4estimonial 2vidence !. Aualifications of a <itness ". Competenc* ;ersus Credibilit* of a <itness &. Dis,ualifications of <itnesses a. Dis,ualification b* reason of mental capacit* or immaturit* b. Dis,ualification b* reason of marriage c. Dis,ualification b* reason of death or insanit* of adverse part* d. Dis,ualification b* reason of privileged communications >!? 0usband and wife >"? Attorne* and client >&? h*sician and patient >&? and penitent >'? ublic officers arental and filial privilege rule '. 21amination of a <itness a. Rights and obligations of a witness b. 3rder in the e1amination of an individual witness >!? Direct e1amination >"? Cross e1amination >&? Re-direct e1amination >'? Re-cross e1amination >(? Recalling the witness

c. Leading and misleading ,uestions d. $ethods of impeachment of adverse part*Cs witness e. 0ow the witness is impeached b* evidence of inconsistent statements >la*ing the predicate? f. 2vidence of the good character of a witness (. Admissions and Confessions a. Res inter alios acta rule b. Admission b* a part* c. Admission b* a third part* d. Admission b* a co-partner or agent e. Admission b* a conspirator f. Admission b* privies g. Admission b* silence h. Confessions i. Similar acts as evidence ). 0earsa* Rule a. $eaning of hearsa* b. Reason for e1clusion of hearsa* evidence c. 21ceptions to the hearsa* rule >!? D*ing declaration >"? Declaration against interest >&? Act or declaration about pedigree >'? 5amil* reputation or tradition regarding pedigree >(? Common reputation >)? art of the res gestae >+? 2ntries in the course of business >-? 2ntries in official records >.? Commercial lists and the like >!D? Learned treaties >!!? 4estimon* or deposition at a former trial!avvphi! +. 3pinion Rule a. 3pinion of e1pert witness b. 3pinion of ordinar* witness -. Character 2vidence a. Criminal cases b. Civil cases .. Rule on 21amination of a Child <itness >A.$. #o. DD'-D+-SC? a. Applicabilit* of the rule b. $eaning of Fchild witnessF c. Competenc* of a child witness d. 21amination of a child witness e. Live-link 4; testimon* of a child witness

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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f. ;ideotaped deposition of a child witness g. 0earsa* e1ception in child abuse cases h. Se1ual abuse shield rule i. rotective orders 5. 3ffer and 3b%ection !. 3ffer of 2vidence ". <hen to $ake an 3ffer &. 3b%ection '. Repetition of an 3b%ection (. Ruling ). Striking 3ut of an Answer +. 4ender of 21cluded 2vidence 8. Supreme Court Rulings as of December "D!D VII& R 0is # R%$ s on S%mmary ,roc #%r A. Cases covered b* the Rule B. 2ffect of failure to answer C. reliminar* conference and appearances of parties VIII& 8atar%ngang ,am9arangay A. Cases covered B. Sub%ect matter for amicable settlement C. ;enue D. <hen parties ma* directl* go to court 2. 21ecution 5. Repudiation I*& R%$ o: ,roc #%r :or Sma$$ /$aims /as s ;AM No& 06<6<5<S/= A. Scope and applicabilit* of the Rule B. Commencement of small claims action9 Response C. rohibited pleadings and motions D. Appearances 2. 0earing9 dut* of the %udge 5. 5inalit* of %udgment *& R%$ s o: ,roc #%r :or En0ironm nta$ /as s ;AM No& 07<4<6<S/= A. Scope and Applicabilit* of the Rule B. Civil rocedure

!. rohibition against 4emporar* Restraining 3rder and reliminar* :n%unction ". re-trial Conference9 Consent Decree &. rohibited leadings and $otions '. 4emporar* 2nvironmental rotection 3rder >42 3? (. /udgment and 21ecution9 Reliefs in a citi@enCs suit ). ermanent 2nvironmental rotection 3rder9 <rit of continuing mandamus +. Strategic Lawsuit against ublic articipation C. Special !. ". &. '. roceedings <rit of =alikasan rohibited pleadings and motions Discover* measures <rit of Continuing $andamus

D. Criminal rocedure !. <ho ma* file ". :nstitution of criminal and civil action &. Arrest without warrant7 when valid '. rocedure in the custod* and disposition of sei@ed items (. Bail ). Arraignment and lea +. re-trial -. Subsidiar* liabilities 2. 2vidence !. recautionar* principle ". Documentar* evidence :$ 3R4A#4 #342E 4his bar coverage description is not intended and should not be used b* law schools as a s*llabus or course outline in the covered sub%ects. :t has been drawn up for the limited purpose of ensuring that candidates reviewing for the bar e1aminations are guided on what basic and minimum amounts of laws7 doctrines7 and principles the* need to know and be able to use correctl* before the* can be licensed to practice law. $ore is re,uired for e1cellent and distinguished work as members of the Bar.

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/IVIL ,RO/ED(RE
R%$ s 1 51

+ENERAL ,RIN/I,LES

prescribes the punishment for committing them7 as distinguished from remedial law which provides or regulates the steps b* which one who commits a crime is to be punished.

/ON/E,T O) REMEDIAL LAW R m #ia$ La" is that branch of law which prescribes the method of enforcing rights or obtaining redress for their invasion.

R(LE<MA8IN+ ,OWER O) T>E S(,REME /O(RT Section ( >(?7 Art. ;::: of the Constitution provides that the Supreme Court shall have the power toE a. promulgate rules concerning the protection and enforcement of constitutional rights7 pleading7 practice7 and procedure in all courts9 b. admission to the practice of law9 c. the :ntegrated Bar9 d. and legal assistance to the underprivileged

S(BSTANTIVE LAW AS DISTIN+(IS>ED )ROM REMEDIAL LAW S%9stanti0 $a" creates7 defines and regulates rights and duties regarding life7 libert* or propert* which when violated gives rise to a cause of action. R m #ia$ $a" prescribes the methods of enforcing those rights and obligations created b* substantive law b* providing a procedural s*stem for obtaining redress for the invasion of rights and violations of duties and b* prescribing rules as to how suits are filed7 tried and decided b* the courts. As applied to criminal law7 substantive law is that which declares what acts are crimes and

LIMITATIONS O) T>E R(LE<MA8IN+ ,OWER O) T>E S(,REME /O(RT

!? 4he rules shall provide a simplified and


ine1pensive procedure for the speed* disposition of cases

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"? 4he* shall be uniform for all courts of the


same grade &? 4he* shall not diminish7 increase7 or modif* substantive rights. '? 4he power to admit attorne*s to the Bar is not an arbitrar* and despotic one but is the dut* of the court to e1ercise and regulate it b* a sound and %udicial discretion. Rules of procedure of special courts and ,uasi-%udicial bodies shall remain effective unless disapproved b* the Supreme Court.

a. :t is an organ of government belonging to


the %udicial department the function of which is the application of the laws to the controversies brought before it as well as the public administration of %ustice. b. :t is a governmental bod* officiall* assembled under authorit* of law at the appropriate time and place for the administration of %ustice through which the State enforces its sovereign rights and powers. c. :t is a board or tribunal which decides a litigation or contest. /O(RT DISTIN+(IS>ED )ROM .(D+E a? A court is a tribunal officiall* assembled under authorit* of law9 a %udge is simpl* an officer of such tribunal9 b? A court is an organ of the government with a personalit* separate and distinct from the person or %udge who sits on it9 c? A court is a being in imagination comparable to a corporation7 whereas a %udge is a ph*sical person9 d? A court ma* be considered an office9 a %udge is a public officer9 and e? 4he circumstances of the court are not affected b* the circumstances that would affect the %udge. /LASSI)I/ATION O) ,>ILI,,INE /O(RTS Regular courts engaged in the administration of %ustice are organi@ed into four >'? levelsE >a? )irst L 0 $ ;MT/s? M T/s? M/T/s= J which tr* and decide >!? /rimina$ actions involvingE a. violations of cit* or municipal ordinances committed within their respective territorial %urisdiction9 and b. offenses punishable with imprisonment not e1ceeding si1 >)? *ears irrespective of the amount of fine and regardless of other imposable accessor* or other penalties7 and >"? /i0i$ actions including 2/2C4$2#4 CAS2S >52BD? and recover* of personal propert* with a value of not more than ,100?000 outside $$ or does not e1ceed ,200?000 in $$9 >b? S con# L 0 $ ;RT/s? )ami$y /o%rts= courts of general %urisdiction

,OWER O) T>E S(,REME /O(RT TO AMEND AND S(S,END ,RO/ED(RAL R(LES <hen compelling reasons so warrant or when the purpose of %ustice re,uires it I discretionar* upon courts. Reasons that would warrant the suspensionE !? the e1istence of special or compelling circumstances9 "? merits of the case9 &? cause not entirel* attributable to the fault or negligence of the part* favored b* the suspension of rules '? a lack of showing that the review sought is merel* frivolous and dilator*9 (? the other part* will not be un%ustl* pre%udiced thereb*. <here substantial and important issues await resolution.

<hen transcendental matters of life7 libert*


or state securit* are involved. 4he constitutional power of the Supreme Court to promulgate rules of practice and procedure necessaril* carries with it the power to overturn %udicial precedents on points of remedial law through the amendment of the Rules of Court. NAT(RE O) ,>ILI,,INE /O(RTS hilippine courts are both courts of law and e,uit*. 0ence7 both legal and e,uitable %urisdiction is dispensed with in the same tribunal. W>AT IS A /O(RT

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among the civil actions assigned to them b* law are those in which the sub%ect of litigation is a. actions incapable of pecuniar* estimation b. actions involving title to or possession of real propert* where the assessed value of the propert* e1ceeds ,20?000 outside $$ or e1ceeds ,30?000 in $$. c. where the demand e1clusive of interest7 damages of whatever kind7 attorne*Cs fees7 litigation e1penses7 and cost7 or the value of the personal propert* or controvers* e1ceeds ,100?000 outside $$ or e1ceeds ,200?000 in $$. e1ercise appellate %urisdiction Review cases appealed courts of the first level.

officers or emplo*ees including those in 83CCs in relation to their office. >d? )o%rt! L 0 $ ;S%-r m /o%rt=

/O(RTS O) ORI+INAL AND A,,ELLATE .(RISDI/TION A court is one with original %urisdiction when actions or proceedings are originall* filed with it. A court is one with appellate %urisdiction when it has the power of review over the decisions or orders of a lower court. $e4Cs7 $C4Cs and $4Cs are courts of original %urisdiction without appellate %urisdiction. R4C is likewise a court of original %urisdiction with respect to cases originall* filed with it9 and appellate court with respect to cases decided b* $4Cs within its territorial %urisdiction. (Sec. 22, BP 129). CA is primaril* a court of appellate %urisdiction with competence to review %udgments of the R4Cs and specified ,uasi-%udicial agencies (Sec. 9[3], BP 129). :t is also a court of original %urisdiction with respect to cases filed before it involving issuance of writs of certiorari7 mandamus7 ,uo warranto7 habeas corpus7 and prohibition. CA is a court of original and e1clusive %urisdiction over actions for annulment of %udgments of R4Cs (Sec. 9 [1],[2], BP 129). 4he SC is fundamentall* a court of appellate %urisdiction but it ma* also be a court of original %urisdiction over cases affecting ambassadors7 public ministers and consuls7 and in cases involving petitions for certiorari7 prohibition and mandamus (Sec. 5[1], Art. VIII, Constitution). 4he Supreme Court en banc is not an appellate court to which decisions or resolutions of a division of the Supreme Court ma* be appealed. /O(RTS O) +ENERAL AND S,E/IAL .(RISDI/TION Courts of general %urisdiction are those with competence to decide on their own %urisdiction and to take cogni@ance of all cases7 civil and criminal7 of a particular nature. Courts of special >limited? %urisdiction are those which have onl* a special %urisdiction for a particular purpose or are clothed with special powers for the performance

from

>c? T!ir# L 0 $ ;/o%rt o: A-- a$s? San#igan9ayan= CA is an appellate court a. reviewing cases appealed to it from the R4C on ,uestions of fact or mi1ed ,uestions of fact and law b. decisions of the R4C in the e1ercise of original %urisdiction i. as a matter of right ii. as a matter of discretion. 3ccasionall*7 CA ma* act as a trial court7 as in actions pra*ing for the annulment of final and e1ecutor* %udgments of R4Cs on the ground of e1trinsic fraud subse,uentl* discovered7 against which no other remedies lies. San#igan9ayan !as @%ris#iction over all criminal and civil cases involving graft and corrupt practices act such other offenses committed b* public officers and emplo*ees including those in 83CCs in relation to their office. :t also has e1clusive appellate %urisdiction over final %udgments7 resolutions7 or orders of R4Cs whether in the e1ercise of their own original or appellate %urisdiction over criminal and civil cases committed b* public

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of specified duties be*ond which the* have no authorit* of an* kind. A court ma* also be considered general if it has the competence to e1ercise %urisdiction over cases not falling within the %urisdiction of an* court7 tribunal7 person or bod* e1ercising %udicial or ,uasi-%udicial functions. :t is in the conte1t that the R4C is considered a court of general %urisdiction. /ONSTIT(TIONAL AND STAT(TOR' /O(RTS A constitutional court is one created b* a direct Constitutional provision. 21ample of this court is the SC7 which owes its creation from the Constitution itself. 3nl* the SC is a Constitutional court. A statutor* court is one created b* law other than the Constitution. All courts e1cept the SC are statutor* courts. SB was not directl* created b* the Constitution but b* law pursuant to a constitutional mandate. /O(RTS O) LAW A court of law decides a case according to the e1isting laws. /O(RTS O) EA(IT' A court of e,uit* ad%udicates a controvers* according to the common precepts of what is right and %ust without in,uiring into the terms of the statutes. ,RIN/I,LE O) .(DI/IAL >IERAR/>' 4his is an ordained se,uence of recourse to courts vested with concurrent %urisdiction7 beginning from the lowest7 on to the ne1t highest and ultimatel* to the highest. 4his hierarch* is determinative of the venue of appeals7 and is likewise determinative of the proper forum for petitions for e1traordinar* writs. 4his is an established polic* necessar* to avoid inordinate demands upon the CourtCs time and attention which are better devoted to those matters within its e1clusive %urisdiction7 and to preclude the further clogging of the CourtCs docket (Sec. 9[1], BP 129; Sec. 5[1], Art. VIII, Constitution of the Phi i!!ines). A higher court will not entertain direct resort to it unless the redress cannot be obtained in the appropriate courts. 4he SC is a court of last resort. :t cannot and should not be burdened with the task of deciding cases in the first instances. :ts %urisdiction to issue e1traordinar* writs should

be e1ercised onl* where absolutel* necessar* or where serious and important reasons e1ist. 4he doctrine of hierarch* of courts ma* be disregarded if warranted b* the nature and importance of the issues raised in the interest of speed* %ustice and to avoid future litigations7 or in cases of national interest and of serious implications. Bnder the principle of liberal interpretations7 for e1ample7 it ma* take cogni@ance of a petition for certiorari directl* filed before it. DO/TRINE O) NON<INTER)EREN/E OR DO/TRINE O) .(DI/IAL STABILIT' Courts of e,ual and coordinate %urisdiction cannot interfere with each otherCs orders. 4hus7 the R4C has no power to nullif* or en%oin the enforcement of a writ of possession issued b* another R4C. 4he principle also bars a court from reviewing or interfering with the %udgment of a co-e,ual court over which it has no appellate %urisdiction or power of review. 4his doctrine applies with e,ual force to administrative bodies. <hen the law provides for an appeal from the decision of an administrative bod* to the SC or CA7 it means that such bod* is co-e,ual with the R4C and logicall* be*ond the control of the latter.

.(RISDI/TION

/urisdiction J the power and authorit* of the court to hear7 tr* and decide a case. .(RISDI/TION OVER T>E ,ARTIES a? 4he manner b* which the court ac,uires %urisdiction over the parties depends on whether the part* is the plaintiff or the defendant b? /urisdiction over the plaintiff is ac,uired b* his filing of the complaint or petition. B* doing so7 he submits himself to the %urisdiction of the court. c? /urisdiction over the person of the defendant is obtained either b* a valid service of summons upon him or b* his voluntar* submission to the courtCs authorit*. d? 4he mode of ac,uisition of %urisdiction over the plaintiff and the defendant applies to both ordinar* and special civil actions like mandamus or unlawful detainer cases.

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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>OW .(RISDI/TION OVER ,LAINTI)) IS A/A(IRED Ac,uired when the action is commenced b* the filing of the complaint. 4his presupposes pa*ment of the docket fees. >OW .(RISDI/TION OVER DE)ENDANT IS A/A(IRED /urisdiction over the person of the defendant is re,uired onl* in an action in personam9 it is not a prere,uisite in an action in rem and ,uasi in rem. :n an action in personam7 %urisdiction over the person is necessar* for the court to validl* tr* and decide the case7 while in a proceeding in rem or ,uasi in rem7 %urisdiction over the person of the defendant is not a prere,uisite to confer %urisdiction on the court7 provided the latter has %urisdiction over the res. B* voluntar* appearance of the defendant7 without service of summons or despite a defective service of summons. 4he defendantCs voluntar* appearance in the action shall be e,uivalent to service of summons. :nstances when appearance of defendant is not tantamount to voluntar* submission to the %urisdiction of the courtE !? when defendant files the necessar* pleading9 "? when defendant files motion for reconsideration of the %udgment b* default9 &? when defendant files a petition to set aside the %udgment of default9 '? when the parties %ointl* submit a compromise agreement for approval of the court9 (? when defendant files an answer to the contempt charge9 )? when defendant files a petition for certiorari without ,uestioning the courtCs %urisdiction over his person. .(RISDI/TION OVER T>E S(B.E/T MATTER :t is the power to deal with the general sub%ect involved in the action7 and means not simpl* %urisdiction of the particular case then occup*ing the attention of the court but %urisdiction of the class of cases to which the particular case belongs. :t is the power or authorit* to hear and determine cases to which the proceeding is ,uestion belongs.

<hen a complaint is filed in court7 the basic ,uestions that i!so f"cto are to be immediatel* resolved b* the court on its ownE a? <hat is the sub%ect matter of their complaint filed before the courtK b? Does the court have %urisdiction over the said sub%ect matter of the complaint before itK Answering these ,uestions inevitabl* re,uires looking into the applicable laws conferring %urisdiction. .(RISDI/TION VERS(S E*ER/ISE O) .(RISDI/TION /urisdiction is the power or authorit* of the court. 4he e1ercise of this power or authorit* is the e1ercise of %urisdiction. ERROR O) .(RISDI/TION VS& ERROR O) .(D+MENT An 2RR3R 35 /BR:SD:C4:3# is one where the act complained of was issued b* the court without or in e1cess of %urisdiction. :t occurs when the court e1ercises a %urisdiction not conferred upon it b* law7 or when the court or tribunal although with %urisdiction7 acts in e1cess of its %urisdiction or with grave abuse of discretion amounting to lack or %urisdiction. An 2RR3R 35 /BD8$2#4 is one which the court ma* commit in the e1ercise of its %urisdiction. As long as the court acts within its %urisdiction7 an* alleged errors committed in the e1ercise of its discretion will amount to nothing more than mere errors of %udgment. 2rrors of %udgment include errors of procedure or mistakes in the courtLs findings. 2rrors of %udgment are correctible b* appeal9 errors of %urisdiction are correctible onl* b* the e1traordinar* writ of certiorari. An* %udgment rendered without %urisdiction is a total nullit* and ma* be struck down at an* time7 even on appeal9 the onl* e1ception is when the part* raising the issue is barred b* estoppel. >OW .(RISDI/TION IS /ON)ERRED AND DETERMINED /urisdiction is a matter of substantive law because it is conferred b* law. 4his %urisdiction which is a matter of substantive law should be construed to refer onl* to %urisdiction over the sub%ect matter. /urisdiction over the parties7 the issues and the res are matters of procedure. 4he test of %urisdiction is whether the court has the

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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power to enter into the in,uir* and not whether the decision is right or wrong. :t is the dut* of the court to consider the ,uestion of %urisdiction before it looks at other matters involved in the case. :f the court finds that it has %urisdiction7 it is the dut* of the court to e1ercise the %urisdiction conferred upon it b* law and to render a decision in a case properl* submitted to it. :t cannot decline to e1ercise its %urisdiction. 5ailure to do so ma* be enforced b* wa* of mandamus proceeding.

OB.E/TION TO .(RISDI/TION OVER T>E S(B.E/T MATTER <hen it appears from the pleadings or evidence on record that the court has no %urisdiction over the sub%ect matter7 the court shall dismiss the same. >Sec. !7 Rule .?. 4he court ma* on its 3<# :#:4:A4:;2 ob%ect to an erroneous %urisdiction and ma* e# $ero $otu take cogni@ance of lack of %urisdiction at an* point in the case and has a clearl* recogni@ed right to determine its own %urisdiction. /urisdiction over the sub%ect matter ma* be raised at an* stage of the proceedings7 even for the first time on appeal. <hen the court dismisses the complaint for lack of %urisdiction over the sub%ect matter7 it is common reason that the court cannot remand the case to another court with the proper %urisdiction. :ts onl* power is to dismiss and not to make an* other order. E))E/T O) ESTO,,EL ON OB.E/TION TO .(RISDI/TION 4he active participation of a part* in a case is tantamount to recognition of that courtCs %urisdiction and will bar a part* from impugning the courtCs %urisdiction. 4he general rule remainsE a courtCs lack of %urisdiction ma* be raised at an* stage of the proceedings even on appeal. 4he Sibonghano* applies onl* to e1ceptional circumstances. Doctrin o: sto-- $s 9y $ac! s (in re "tion to o%&ections to &uris'iction) I the SC barred a belated ob%ection to %urisdiction that was raised onl* after an adverse decision was rendered b* the court against the part* raising the issue of %urisdiction and after seeking affirmative relief from the court and after participating in all stages of the proceedings. 4he SC frowns upon the undesirable practice of submitting oneCs case for decision7 and then accepting the %udgment onl* if favorable7 but attacking it for lack of %urisdiction if it is not. .(RISDI/TION OVER T>E ISS(ES :t is the power of the court to tr* and decide issues raised in the pleadings of the parties. An issue is a disputed point or ,uestion to which parties to an action have narrowed down their several allegations and upon which the* are

#oteE /urisdiction over the sub%ect matter


is conferred by substantive law which ma* either be a Constitution or statute9 while %urisdiction over the sub%ect matter is determined by the allegations of the complaint regardless of whether or not the plaintiff is entitled to the claims asserted therein. DO/TRINE O) ,RIMAR' .(RISDI/TION Courts will not resolve a controvers* involving a ,uestion which is within the %urisdiction of an administrative tribunal7 especiall* where the ,uestion demands the e1ercise of sound administrative discretion re,uiring the special knowledge7 e1perience and services of the administrative tribunal to determine technical and intricate matters of fact. 4he ob%ective is to guide a court in determining whether it should refrain from e1ercising its %urisdiction until after an administrative agenc* has determined some ,uestion or some aspect of some ,uestion arising in the proceeding before the court. DO/TRINE O) AD>EREN/E O) .(RISDI/TION B /ONTIN(IT' O) .(RISDI/TION 3nce a court has ac,uired %urisdiction7 that %urisdiction continues until the court has done all that it can do in the e1ercise of that %urisdiction. 4his principle also means that once %urisdiction has attached7 it cannot be ousted b* subse,uent happenings or events and retains that %urisdiction until it finall* disposes of the case. 2ven the finalit* of the %udgment does not totall* deprive the court of %urisdiction over the case. <hat the court loses is the power to amend7 modif* or alter the %udgment. 2ven after the %udgment has become final7 the court retains %urisdiction to enforce and e1ecute it.

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desirous of obtaining a decision. <here there is no disputed point7 there is no issue. 8enerall*7 %urisdiction over the issues is conferred and determined b* the pleadings of the parties. 4he pleadings present the issues to be tried and determine whether or not the issues are of fact or law. a? ma* also be determined and conferred b* stipulation of the parties as when in the pre-trial7 the parties enter into stipulations of facts and documents or enter into agreement simplif*ing the issues of the case. b? ma* also be conferred b* waiver or failure to ob%ect to the presentation of evidence on a matter not raised in the pleadings. 0ere the parties tr* with their e1press or implied consent or issues not raised b* the pleadings. 4he issues tried shall be treated in all respects as if the* had been raised in the pleadings. .(RISDI/TION OVER T>E RES OR ,RO,ERT' IN LITI+ATION /urisdiction over the res refers to the courtCs %urisdiction over the thing or the propert* which is the sub%ect of the action. /urisdiction over the res ma* be ac,uired b* the court !? b* placing the propert* or thing under its custod* >custodia legis? >the sei@ure of the thing under legal process whereb* it is brought into actual custod* of law?. 21ampleE attachment of propert*. "? through statutor* authorit* conferring upon it the power to deal with the propert* or thing within the courtCs territorial %urisdiction >institution of a legal proceeding wherein the power of the court over the thing is recogni@ed and made effective?. 21ampleE suits involving the status of the parties or suits involving the propert* in the hilippines of nonresident defendants. .(RISDI/TION O) T>E S(,REME /O(RT /RIMINAL /ASES E*/L(SIVE ORI+INAL .(RISDI/TION etitions for certior"ri, !rohi%ition "n' $"n'"$us against CA and Sandiganba*an

/ON/(RRENT .(RISDI/TION a? <ith the CA and R4CE petitions for certior"ri, !rohi%ition "n' $"n'"$us against the $4C b? <ith the CAE petitions for certior"ri, !rohi%ition "n' $"n'"$us against the R4C c? with Sandiganba*anE petitions for mandamus7 prohibition7 certiorari7 habeas corpus7 in%unction and ancillar* writs in aid of its appellate %urisdiction and over petitions of similar nature7 including ,uo warranto arising or that ma* arise in cases filed or which ma* be filed. A,,ELLATE .(RISDI/TION a? from the R4C in all criminal cases involving offenses for which the penalt* is reclusion perpetua or life imprisonment7 and those involving other offenses which7 although not so punished7 arose out of the same occurrence or which ma* have been committed b* the accused on the same occasion9 b? Automatic review where death penalt* is imposed. c? B* petition for review on Certiorari from the CA7 Sandiganba*an and from the R4C where onl* error or ,uestion of law is involved

#oteE :n

vs. $ateo >"DD'?7 the SC held that while the 5undamental Law re,uires a mandator* review b* the SC of cases where the penalt* imposed is rec usion !er!etu"7 life imprisonment or death7 nowhere however7 has it proscribed an intermediate review. :f onl* to ensure utmost circumspection before the penalt* of rec usion !er!etu"7 life imprisonment or death is imposed7 the Court now deems it wise and compelling to provide in these cases a review b* the CA before the case is elevated to the SC. A prior determination b* the CA on7 particularl*7 the factual issues7 would minimi@e the possibilit* of an error of %udgment. :f the CA should affirm the penalt* of rec usion !er!etu"7 life imprisonment or death7 it could then render %udgment imposing the corresponding penalt* as the circumstances so warrant7 refrain from entering %udgment and elevate the entire records of the case to the SC for final disposition. /IVIL /ASES

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E*/L(SIVE ORI+INAL .(RISDI/TION in petitions for certiorari7 prohibition and mandamus against the CA7 C3$2L2C7 C3A7 C4A7 Sandiganba*an /ON/(RRENT .(RISDI/TION

!? <ith Court of Appeals in petitions for


certior"ri, !rohi%ition "n' $"n'"$us against the R4C7 CSC7 Central Board of Assessment Appeals7 #LRC7 Auasi-%udicial agencies7 and writ of kalikasan7 all sub%ect to the doctrine of hierarch* of courts. "? <ith the CA and R4C in petitions for certior"ri, !rohi%ition "n' $"n'"$us against lower courts and bodies and in petitions for (uo )"rr"nto, "n' )rits of h"%e"s cor!us7 all sub%ect to the doctrine of hierarch* of courts. &? <ith CA7 R4C and Sandiganba*an for petitions for )rits of "$!"ro "n' h"%e"s '"t" '? Concurrent original %urisdiction with the R4C in cases affecting "$%"ss"'ors, !u% ic $inisters "n' consu s. A,,ELLATE .(RISDI/TION !? b* wa* of - tition :or r 0i " on c rtiorari >appeal b* certiorari under Rule '(? against CA7 Sandiganba*an7 R4C on pure ,uestions of law and C4A in its decisions rendered en banc. "? in cases involving the constitutionalit* or validit* of a law or treat*7 international or e1ecutive agreement7 law7 presidential decree7 proclamation7 order7 instruction7 ordinance or regulation7 legalit* of a ta17 impost7 assessment7 toll or penalt*7 %urisdiction of a lower court9 and &? all cases in which the %urisdiction of an* court is in issue9 '? all cases in which an error or ,uestion of law is involved Exc -tions in which factual issues ma* be resolved b* the Supreme CourtE a? <hen the findings are grounded entirel* on speculation7 surmises or con%ectures9 b? <hen the inference made is manifestl* mistaken7 absurd or impossible9 c? <hen there is grave abuse of discretion9 d? <hen the %udgment is based on misapprehension of facts9 e? <hen the findings of facts are conflicting9 f? <hen in making its findings the CA went be*ond the issues of the case7 or its

findings are contrar* to the admissions of both the appellant and the appellee9 g? <hen the findings are contrar* to the trial court9 h? <hen the findings are conclusions without citation of specific evidence on which the* are based9 i? <hen the facts set forth in the petition as well as in the petitionerLs main and repl* briefs are not disputed b* the respondent9 %? <hen the findings of fact are premised on the supposed absence of evidence and contradicted b* the evidence on record9 and k? <hen the Court of Appeals manifestl* overlooked certain relevant facts not disputed b* the parties7 which7 if properl* considered7 could %ustif* a different conclusion. .(RISDI/TION O) T>E /O(RT O) A,,EALS ;47 .%stic s= /RIMINAL /ASES E*/L(SIVE ORI+INAL .(RISDI/TION a? Actions for annulment of %udgment of the R4Cs b? Crimes of 4errorism under 0uman Securit* Act of "DD+ /ON/(RRENT ORI+INAL .(RISDI/TION a? <ith the SCE petitions for certior"ri, !rohi%ition "n' $"n'"$us against the R4C b? <ith the SC and R4CE petitions for certior"ri, !rohi%ition "n' $"n'"$us against the $4C A,,ELLATE .(RISDI/TION Notic o: A-- a$C a? 5rom the R4C in the e1ercise of its original %urisdiction7 e1cept those appealable to the Sandiganba*an b? 5rom the R4C where penalt* imposed is rec usion !er!etu" or life imprisonment or where a lesser penalt* is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalt* of death7 reclusion perpetua or life imprisonment is imposed >Sec. 3, *u e 122 "s "$en'e' %+ A, -o. ../5/.3/ SC?.

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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A%tomatic R 0i " >i.e. no notice of

appeal is necessar*? from the R4C in cases wherein the death penalt* is imposed.

, tition :or R 0i " from the R4C in


cases appealed thereto from the lower courts and not appealable to the Sandiganba*an. /IVIL /ASES E*/L(SIVE ORI+INAL .(RISDI/TION in actions for the annulment of the %udgments of the R4C. /ON/(RRENT ORI+INAL .(RISDI/TION !? <ith SC to issue writs of certiorari7 prohibition and mandamus against the R4C7 CSC7 CBAA7 other ,uasi-%udicial agencies mentioned in Rule '&7 and the #LRC >however7 this should be filed first with the CA as per St. $artin 5uneral 0ome case?7 and writ of kalikasan. "? <ith the SC and R4C to issue writs of certiorari7 prohibition and mandamus >C $? against lower courts and bodies and writs of ,uo warranto7 habeas corpus7 whether or not in aid of its appellate %urisdiction7 and writ of continuing mandamus on environmental cases. &? <ith SC7 R4C and Sandiganba*an for petitions for writs of amparo and habeas data where the action involves public data or government office E*/L(SIVE A,,ELLATE .(RISDI/TION !? b* wa* of ordinar* appeal from the R4C and the 5amil* Courts. "? b* wa* of petition for review from the R4C rendered b* the R4C in the e1ercise of its appellate %urisdiction. &? b* wa* of petition for review from the decisions7 resolutions7 orders or awards of the CSC7 CBAA and other bodies mentioned in Rule '& and of the 3ffice of the 3mbudsman in administrative disciplinar* cases. '? over decisions of $4Cs in cadastral or land registration cases pursuant to its delegated %urisdiction9 this is because decisions of $4Cs in these cases are appealable in the same manner as decisions of R4Cs.

.(RISDI/TION O) T>E /O(RT O) TA* A,,EALS ;(NDER RA 7262 AND R(LE 3? AM 03 11 05/TA= E*/L(SIVE ORI+INAL OR A,,ELLATE .(RISDI/TION TO REVIEW B' A,,EAL

!? Decisions of C:R in cases involving disputed


assessments7 refunds of internal revenue ta1es7 fees or other charges7 penalties in relation thereto7 or other matters arising under the #:RC or other laws administered b* B:R9 :naction b* C:R in cases involving disputed assessments7 refunds of :R ta1es7 fees or other charges7 penalties in relation thereto7 or other matters arising under the #:RC or other laws administered b* B:R7 where the #:RC or other applicable law provides a specific period of action7 in which case the inaction shall be deemed an implied denial9 Decisions7 orders or resolutions of the R4Cs in local ta1es originall* decided or resolved b* them in the e1ercise of their original or appellate %urisdiction9 Decisions of the Commissioner of Customs a. in cases involving liabilit* for customs duties7 fees or other charges7 sei@ure7 detention or release of propert* affected7 fines7 forfeitures or other penalties in relation thereto7 or b. other matters arising under the Customs law or other laws7 part of laws or special laws administered b* B3C9 Decisions of the Central Board of Assessment Appeals in the e1ercise of its appellate %urisdiction over cases involving the assessment and ta1ation of real propert* originall* decided b* the provincial or cit* board of assessment appeals9 Decision of the secretar* of 5inance on customs cases elevated to him automaticall* for review from decisions of the Commissioner of Customs which are adverse to the government under Sec. "&!( of the 4ariff and Customs Code9 Decisions of Secretar* of 4rade and :ndustr* in the case of non-agricultural product7 commodit* or article7 and the Secretar* of Agriculture in the case of agricultural product7 commodit* or article7 involving dumping duties and counterveiling duties under Secs. &D! and &D"7 respectivel*7 of the 4ariff and Customs Code7 and safeguard measures under RA --DD7 where either part*

"?

&?

'?

(?

)?

+?

-ote0 1here is no "ction to "nnu the


'ecision of the CA.

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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ma* appeal the decision to impose or not to impose said duties. E*/L(SIVE ORI+INAL .(RISDI/TION !? 3ver all criminal cases arising from violation of the #:RC and the 4CC and other laws7 part of laws7 or special laws administered b* the B:R or the B3C where the principal amount of ta1es and fees7 e1clusive of charges and penalties claimed is less than !$ or where there is no specified amount claimed >the offenses or penalties shall be tried b* the regular courts and the %urisdiction of the C4A shall be appellate?9 "? :n ta1 collection cases involving final and e1ecutor* assessments for ta1es7 fees7 charges and penalties where the principal amount of ta1es and fees7 e1clusive of charges and penalties claimed is less than !$ tried b* the proper $4C7 $e4C and R4C. E*/L(SIVE A,,ELLATE .(RISDI/TION 1= In crimina$ o:: ns s a? over appeals from the %udgment7 resolutions or orders of the R4C in ta1 cases originall* decided b* them7 in their respective territorial %urisdiction7 and b? over petitions for review of the %udgments7 resolutions or orders of the R4C in the e1ercise of their appellate %urisdiction over ta1 cases originall* decided b* the $e4Cs7 $4Cs7 and $C4Cs in their respective %urisdiction. 2= In tax co$$ ction cas s a? over appeals from the %udgments7 resolutions or orders of the R4C in ta1 collection cases originall* decided b* them in their respective territorial %urisdiction9 and b? over petitions for review of the %udgments7 resolutions or orders of the R4C in the e1ercise of their appellate %urisdiction over ta1 collection cases originall* decided b* the $e4Cs7 $4Cs and $C4Cs in their respective %urisdiction. .(RISDI/TION O) T>E SANDI+ANBA'AN ORI+INAL .(RISDI/TION in all cases involving

&? Se,uestration cases >2.3. #os. !7"7!'7!'A?

'? Briber* >Chapter ::7 Sec. "7 4itle ;::7 Book


::7 R C? where one or more of the principal accused are occup*ing the following positions in the government7 whether in permanent7 acting or interim capacit* at the time of the commission of the offenseE a? 3fficials of the e1ecutive branch occup*ing the positions of regional director and higher7 otherwise classified as 8rade "+ and higher7 of the Compensation and osition Classification Act of !.-. >RA )+(-? b? $embers of Congress and officials thereof classified as 8-"+ and up under RA )+(c? $embers of the /udiciar* without pre%udice to the provisions of the Constitution d? Chairmen and $embers of the Constitutional Commissions without pre%udice to the provisions of the Constitution e? All other national and local officials classified as 8rade "+ and higher under RA )+(f? 3ther offenses or felonies committed b* the public officials and emplo*ees mentioned in Sec. '>a? of RA +.+( as amended b* RA -"'. in relation to their office g? Civil and criminal cases filed pursuant to and in connection with 23 #os. !7 "7 !'-A >Sec. '7 RA -"'.? #oteE <ithout the office7 the crime cannot be committed. A,,ELLATE .(RISDI/TION - from the R4C in cases under D !)D)7 as amended b* D !-)!7 whether or not the cases were decided b them in the e1ercise of their original or appellate %urisdictions. /ON/(RRENT ORI+INAL .(RISDI/TION WIT> S/? /A AND RT/ for petitions for writs of habeas data and amparo

4he re,uisites that the offender the

offender occupies salar* 8rade "+ and the offense must be intimatel* connected with the official function must concur for the SB to have %urisdiction J 2ustice ,"3'"n3" 4e 5eon .(RISDI/TION O) T>E RE+IONAL TRIAL /O(RTS

!? ;iolations of RA &D!. >Anti-8raft and


Corrupt ractices Act? "? ;iolations of RA !&+. >Anti-:ll-8otten <ealth Act?

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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/RIMINAL /ASES E*/L(SIVE ORI+INAL .(RISDI/TION

d? Demand for mone*

'? Cases not falling within the %urisdiction of


an* court7 tribunal7 person or bod* e1ercising %udicial or ,uasi-%udicial functions >g n ra$ @%ris#iction o: RT/?

!? 3ffenses punishable with imprisonment


which e1ceeds ) *ears imprisonment "? 3ffenses not within the e1clusive %urisdiction of an* court7 tribunal or bod*7 e1cept those falling under the e1clusive %urisdiction of the Sandiganba*an #oteE :n cases where the onl* penalt* is fine7 the amount thereof shall determine %urisdiction. :f the amount e1ceeds '7DDD7 the R4C has %urisdiction. &? 5amil* Court J Criminal Cases a? 3ne or more of the accused is6are below !- *ears old but not less than . *ears old9 b? <here one of the victims is a minor at the time of the commission of the offense9 c? Cases against minors cogni@able under the Dangerous Drugs Act9 d? ;iolations of RA +)!D7 otherwise known as the MSpecial rotection of Children Against Child Abuse7 21ploitation and Discrimination ActN as amended b* RA +)(-9 and e? Cases of domestic violation against women and their children. A,,ELLATE .(RISDI/TION All cases decided b* the $4C in their respective territorial %urisdiction. /IVIL /ASES E*/L(SIVE ORI+INAL .(RISDI/TION

(? All actions in0o$0ing t!

contract o: marriag an# :ami$y r $ations .(RISDI/TION O) )AMIL' /O(RTS ;RA 6147= a? etitions for guardianship7 custod* of children and habeas corpus involving children b? etitions for adoption of children and the revocation thereof c? Complaints for annulment of marriage7 declaration of nullit* of marriage and those relating to status and propert* relations of husband and wife or those living together under different status and agreements7 and petitions for dissolution of con%ugal partnership of gains d? etitions for support and6or acknowledgment e? Summar* %udicial proceedings brought under the provisions of 23 "D. >5amil* Code? f? etitions for declaration of status of children as abandoned7 dependent or neglected children7 petitions for voluntar* or involuntar* commitment of children7 the suspension7 termination or restoration of parental authorit* and other cases cogni@able under D )D&7 23 () >!.-)? and other related laws g? etitions for the constitution of the famil* home :n areas where there are no 5amil* Courts7 the above-enumerated cases shall be ad%udicated b* the R4C >RA -&).? )? 4o hear and decide intra<cor-orat contro0 rsi s Sec. ("7 Securities and Regulations Code?E a? Cases involving devises or schemes emplo*ed b* or an* acts7 of the board of directors7 business associates7 its officers or partnership7 amounting to fraud and misrepresentation which ma* be detrimental to the interest of the public and6or of the stockholders7 partners7 members of associations or organi@ations registered with the S2C

!? 4he action is inca-a9$

o: - c%niary stimation (such "s rescission of contr"ct, "ction to re6i6e &u'3$ent, 'ec "r"tor+ re ief (1st !"rt), su!!ort, e#!ro!ri"tion)

"? Tit$ to? -oss ssion o:? or int r st in?


r a$ -ro- rty with assessed value e1ceeding ,20?000 outside $etro $anila7 or e1ceeds ,30?000 in $etro $anila

&? :f

the amount involved e1ceeds ,100?000 outside $$ or e1ceeds ,200?000 in $$ in the following casesE a? Admiralt* and maritime cases b? $atters of robate >testate and intestate? c? 3ther actions involving personal propert*

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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b? Controversies arising out of intracorporate or partnership relations7 between and among stockholders7 members or associates9 between an* or all of them and the corporation7 partnership or association of which the* are stockholders7 members or associates7 respectivel*9 and between such corporation 7 partnership or association and the state insofar as it concerns their individual franchise or right to e1ist as such entit* c? Controversies in the election or appointments of directors7 trustees7 officers or managers of such corporations7 partnerships or associations d? etitions of corporations7 partnerships or associations to be declared in the state of suspension of pa*ments in cases where the corporation7 partnership of association possesses sufficient propert* to cover all its debts but foresees the impossibilit* of meeting them when the* respectivel* fall due or in cases where the corporation7 partnership of association has no sufficient assets to cover its liabilities7 but is under the management of a Rehabilitation Receiver or $anagement Committee. /ON/(RRENT .(RISDI/TION !? with the Supreme Court in actions affecting ambassadors7 other public ministers and consuls "? with the SC and CA in petitions for certiorari7 prohibition and mandamus against lower courts and bodies in petitions for ,uo warranto7 habeas corpus7 and writ of continuing mandamus on environmental cases &? with the SC7 CA and Sandigaba*an in petitions for writs of habeas data and amparo '? <ith :nsurance Commissioner J claims not e1ceeding !DD7DDD A,,ELLATE .(RISDI/TION over cases decided b* lower courts in their respective territorial %urisdictions e#ce!t 'ecisions of o)er courts in the e#ercise of 'e e3"te' &uris'iction. S,E/IAL .(RISDI/TION J SC ma* designate certain branches of R4C to tr* e1clusivel* criminal cases7 %uvenile and domestic relations cases7 agrarian cases7 urban land reform cases not falling within the %urisdiction of an* ,uasi-

%udicial bod* and other special cases in the interest of %ustice. .(RISDI/TION O) METRO,OLITAN TRIAL /O(RTSBM(NI/I,AL TRIAL /O(RTS /RIMINAL /ASES E*/L(SIVE ORI+INAL .(RISDI/TION !? Cases covered b* Summar* proceedings a? ;iolations of cit* or municipal ordinances including traffic laws b? ;iolation of rental law c? ;iolation of traffic laws7 rules and regulations d? ;iolation of B "" >Bouncing Check Law? effective April !(7 "DD& e? All other criminal cases where the penalt* is imprisonment not e1ceeding ) months and6or !DD7DDD fine irrespective of other penalties arising therefrom

"? offenses punishable with imprisonment


not e1ceeding si1 >)? *ears irrespective of the amount of fine7 and regardless of other imposable accessor* or other penalties7 including the civil liabilit* arising from such offenses or predicated thereon7 irrespective of the kind7 nature7 value or amount thereof9 provided however7 that in offenses involving damage to propert* through criminal negligence7 the* shall have e1clusive original %urisdiction thereof >Sec. "7 RA +).!?.

&? 3ffenses involving DA$A82 43 R3 2R4H


through CR:$:#AL #28L:82#C2 where the imposable fine is not e1ceeding !D7DDD #oteE :n cases where the onl* penalt* is fine7 the amount thereof shall determine %urisdiction. :f the amount does not e1ceed '7DDD7 the $4C has %urisdiction.

'? All offenses >e1cept violations of RA &D!.7


RA !&+. and Arts. "!D to "!"7 R C? committed b* public officers and emplo*ees in relation to their office7 including those emplo*ed in 83CCs7 and b* private individuals charged as co-principals7 accomplices or accessories7 punishable with imprisonment of not more than ) *ears 3R where none of the accused holds a position of salar* 8rade "+ and higher. /IVIL A/TIONS

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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E*/L(SIVE ORI+INAL .(RISDI/TION !? :f the amount involved does not e1ceed ,100?000 outside $$ or does not e1ceed ,200?000 in $$ in the following casesE a? Actions involving personal propert* b? robate roceeding >testate and intestate? based on gross value of the estate c? Admiralt* and maritime cases d? Demand for mone* -ote0 Do not include :nterest7 Damages of whatever kind7 Attorne*Cs fees7 Litigation 21penses7 and Costs >:DAL2C?. 0owever7 in cases where the claim or damages is the main cause of action7 or one of the causes of action7 the amount of such claim shall be considered in determining the %urisdiction of the court.

b. $unicipal 4rial Courts in Cities J situated


in cities c. $unicipal Circuit 4rial Court J composed of multi-sala d. $unicipal 4rial Courts J in one municipalit*

S>ARDIA> /O(RTS E*/L(SIVE .(RISDI/TION !? All cases involving custod*7 guardianship7 legitimac*7 paternit* and filiation arising under the Code of $uslim ersonal Laws9 "? All cases involving disposition7 distribution and settlement of estate of deceased $uslims7 probate of wills7 issuance of letters of administration of appointment administrators or e1ecutors regardless of the nature or aggregate value of the propert*9 &? etitions for the declaration of absence and death for the cancellation and correction of entries in the $uslim Registries9 '? All actions arising from the customar* contracts in which the parties are $uslims7 if the* have not specified which law shall govern their relations9 and (? All petitions for mandamus7 prohibition7 in%unction7 certiorari7 habeas corpus and all other au1iliar* writs and processes in aid of its appellate %urisdiction /ON/(RRENT .(RISDI/TION !? etitions of $uslim for the constitution of the famil* home7 change of name and commitment of an insane person to an as*lum "? All other personal and legal actions not mentioned in par ! >d? wherein the parties involved are $uslims e1cept those for forcible entr* and unlawful detainer7 which shall fall under the e1clusive %urisdiction of the $4C. &? All special civil actions for interpleader or declarator* relief wherein the parties are $uslims or the propert* involved belongs e1clusivel* to $uslims Cases that can be filesE !? 3ffenses defined and punished under !D-& "? Disputes relating toE a. $arriage b. Divorce D

"? Actions involving title to7 or possession of7


real propert*7 or an* interest therein where the assessed value of the propert* or interest therein does not e1ceed ,20?000 outside $$ or does not e1ceed ,30?000 in $$ &? :nclusion and e1clusion of voters '? 4hose governed b* the R%$ s on S%mmary ,roc #%r a? 5orcible entr* and unlawful detainer >52BD? <ith %urisdiction to resolve issue of ownership to determine 3#LH issue of possession (!ro6ision" on +) :rrespective of the amount of damages or unpaid rentals sought to be recover <here attorne*Cs fees are awarded7 the same shall not e1ceed "D7DDD b? 3ther civil cases7 e1cept probate proceeding7 where the total amount of the plaintiffCs claim does not e1ceed "DD7DDD in $$7 e1clusive of interests and costs. S,E/IAL .(RISDI/TION over petition for writ of habeas corpus 3R application for bail in criminal cases in the absence of all R4C %udges in the province or cit* DELE+ATED .(RISDI/TION to hear and decide cadastral and land registration cases where there is no contro6ers+ over the land or in case of contested lands7 the value does not e1ceed !DD7 DDD I "!!e" "% e to the CA 1st $ 0 $ co%rtsC a. $etropolitan 4rial Court J $etro $anila9

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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c. Betrothal or breach of contract to marr* d. Customar* dowr* >mahr? e. Disposition and distribution of propert* upon divorce f. $aintenance and support and consolator* gifts >mutCa? g. Restitution of marital rights &? Disputes relative to communal properties .(RISDI/TION OVER SMALL /LAIMS

/RIMINAL /ASES !? ;iolations of traffic law7 rules and regulations9 "? ;iolation of the rental law9 &? All other criminal cases where the penalt* prescribed is imprisonment not e1ceeding si1 >)? months7 or fine not e1ceeding !7DDD7 or both7 irrespective of other imposable penalties7 accessor* or otherwise7 or of the civil liabilit* arising therefrom7 provided7 that in offenses involving damage to propert* through criminal negligence7 RS shall govern where the imposable fine does not e1ceed !D7DDD.

!? $4Cs7 $e4Cs and $C4Cs shall have


%urisdiction over actions for pa*ment of mone* where the value of the claim does not e1ceed ,100?000 e1clusive of interest and costs >Sec. "7 A$ D----+-SC7 3ct. "+7 "DD.?. "? Actions covered are a? purel* civil in nature where the claim or relief pra*ed for b* the plaintiff is solel* for pa*ment or reimbursement of sum of mone*7 and b? the civil aspect of criminal actions7 either filed before the institution of the criminal action7 or reserved upon the filing of the criminal action in court7 pursuant to Rule !!! >Sec. '7 A$ D----+-SC?. 4hese claims ma* beE a? 5or mone* owed under the contracts of lease7 loan7 services7 sale7 or mortgage9 b? 5or damages arising from fault or negligence7 ,uasi-contract7 or contract9 and c? 4he enforcement of a baranga* amicable settlement or an arbitration award involving a mone* claim pursuant to Sec. '!+ of RA +!)D >L8C?. /ASES /OVERED B' R(LES ON S(MMAR' ,RO/ED(RE ;SE/& 1 RS,= /IVIL /ASES

RS does not appl* to a civil case where

the plaintiffLs cause of action is pleaded in the same complaint with another cause of action sub%ect to the ordinar* procedure9 nor to a criminal case where the offense charged is necessaril* related to another criminal case sub%ect to the ordinar* procedure.

/ASES /OVERED B' T>E R(LES ON BARAN+A' /ON/ILIATION 4he Lupon of each baranga* shall have the authorit* to bring together the parties actuall* residing in the same municipalit* or cit* for amicable settlement of all disputes e1ceptE !? <here one part* is the government or an* subdivision or instrumentalit* thereof "? <here one part* is a public officer or emplo*ee7 and the dispute relates to the performance of his official functions &? 3ffenses punishable b* imprisonment e1ceeding one >!? *ear or a fine e1ceeding (7DDD '? 3ffenses where there is no private offended part* (? <here the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement b* an appropriate lupon )? Disputes involving parties who actuall* reside in baranga*s of different cities or municipalities7 e1cept where such baranga* units ad%oin each other and the parties thereto agree to submit their differences to amicable settlement b* an appropriate lupon +? Such other classes of disputes which the resident ma* determine in the interest

!? All cases of forcible entr* and unlawful


detainer >52BD?7 irres!ecti6e of the "$ount of '"$"3es or un!"i' rent" s sought to be recovered. <here attorne*Ls fees are awarded7 the same shall not e1ceed "D7DDD9 "? All other cases7 e#ce!t !ro%"te !rocee'in3s )here the tot" "$ount of the ! "intiff7s c "i$ 'oes not e#cee' P100,000 (outsi'e ,,) or P200,000 (in ,,), e#c usi6e of interest "n' costs.

2011 Bar Examinations BERT NOTES in REMEDIAL LAW

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of %ustice or upon the recommendation of the Secretar* of /ustice -? An* complaint b* or against corporations7 partnerships7 or %uridical entities. 4he reason is that onl* individuals shall be parties to baranga* conciliation proceedings either as complainants or respondents .? Disputes where urgent legal action is necessar* to prevent in%ustice from being committed or further continued7 specificall*E a? A criminal case where the accused is under police custod* or detention b? A petition for habeas corpus b* a person illegall* detained or deprived of his libert* or one acting in his behalf c? Actions coupled with provisional remedies7 such as preliminar* in%unction7 attachment7 replevin and su!!ort !en'ente ite d? <here the action ma* be barred b* statute of limitation !D?Labor disputes or controversies arising from emplo*er-emplo*ee relationship !!? <here the dispute arises from the CARL !"?Actions to annul %udgment upon a compromise which can be directl* filed in court. :t is a condition precedent under Rule !)9 can be dismissed but without pre%udice TOTALIT' R(LE <here there are several claims or causes of actions between the same or different parties7 embodied in the same complaint7 the amount of the demand shall be the totality of the claims in all the claims of action7 irrespective of whether the causes of action arose out of the same or different transactions >Sec. &&O!P7 B !".?.

Action >s*non*mous with suit? is the legal and formal demand of oneCs right from another person made and insisted upon in a court of %ustice. 4he kinds of actions are ordinar* and special7 civil and criminal7 e1 contractu and e1 delicto7 penal and remedial7 real7 personal7 and mi1ed action7 action in personam7 in rem7 and ,uasi in rem. ORDINAR' /IVIL A/TIONS? S,E/IAL /IVIL A/TIONS? /RIMINAL A/TIONS Or#inary ci0i$ action is one b* which one part* sues another7 based on a cause of action7 to enforce or protect a right7 or to prevent or redress a wrong7 whereb* the defendant has performed an act or omitted to do an act in violation of the rights of the plaintiff. >Sec. &a? 4he purpose is primaril* compensator*. S- cia$ ci0i$ action J actions which while governed b* the rules for ordinar* civil actions7 are sub%ect to special rules provided for Special Civil Actions /rimina$ action is one b* which the State prosecutes a person for an act or omission punishable b* law >Sec. &ObP7 Rule !?. 4he purpose is primaril* punishment. /IVIL A/TIONS VERS(S S,E/IAL ,RO/EEDIN+S 4he purpose of an action is either to protect a right or prevent or redress a wrong. 4he purpose of special proceeding is to establish a status7 a right or a particular fact. ,ERSONAL A/TIONS AND REAL A/TIONS An action is R2AL when it affects title to or possession of real propert*7 or an interest therein. All other actions are personal actions. An action is real when it is founded upon the privit* of real estate7 which means that the realt* or an interest therein is the sub%ect matter of the action. 4he issues involved in real actions are title to7 ownership7 possession7 partition7 foreclosure of mortgage or condemnation of real propert*. #ot ever* action involving real propert* is a real action because the realt* ma* onl* be incidental to the sub%ect matter of the suit. 21ample is an action for damages to real propert*7 because although it involves real propert*7 it does not involve an* of the issues mentioned.

/IVIL ,RO/ED(RE
A/TIONS

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Real actions are based on the privit* of real estates9 while personal actions are based on privit* of contracts or for the recover* of sums of mone*. 4he distinction between real action and personal action is important for the purpose of determining the venue of the action. A real action is ML3CALN7 which means that its venue depends upon the location of the propert* involved in the litigation. A personal action is M4RA#S:43RHN7 which means that its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. LO/AL AND TRANSITOR' A/TIONS A $oca$ action is one founded on privit* of estates onl* and there is no privit* of contracts. A real action is a local action9 its venue depends upon the location of the propert* involved in litigation. MActions affecting title to or possession of real propert*7 or interest therein7 shall be commenced and tried in the proper court which has %urisdiction over the area wherein the real propert* involved7 or a portion thereof is situatedN (Sec. 1, *u e 8). Transitory action is one founded on privit* of contracts between the parties. A personal action is transitor*7 its venue depends upon the residence of the plaintiff or the defendant at the option of the plaintiff. A personal action Mma* be commenced and tried where the plaintiff or an* of the principal plaintiffs resides or where the defendant or an* of the principal defendants resides7 or in the case of non-resident defendant7 where he ma* be found7 at the election of the plaintiffN. (Sec. 2, *u e 8). Actions in r m? in - rsonam an# E%asi in r m (this is i$!ort"nt in ser6ice of su$$ons) An action in r m7 one instituted and enforced against the whole world. An action in - rsonam is one filed against a definite defendant. :t is intended to sub%ect the interest of defendant on a propert* to an obligation or lien. /urisdiction over the person >defendant? is re,uired. :t is a proceeding to enforce personal rights and obligations brought against the person7 and is based on the %urisdiction of the person7 although it ma* involve his right to7 or the e1ercise of ownership of7 specific propert*7 or seek to compel him to control or dispose of it in accordance with the mandate of the court. 4he purpose is to impose through the

%udgment of a court7 some responsibilit* or liabilit* directl* upon the person of the defendant. #o other than the defendant is liable7 not the whole world7 as in an action for a sum of mone* or an action for damages. An action E%asi in r m7 also brought against the whole world7 is one brought against persons seeking to sub%ect the propert* of such persons to the discharge of the claims assailed. An individual is named as defendant and the purpose of the proceeding is to sub%ect his interests therein to the obligation or loan burdening the propert*. :t deals with status7 ownership or liabilit* or a particular propert* but which are intended to operate on these ,uestions onl* as between the particular parties to the proceedings and not to ascertain or cut off the rights or interests of all possible claimants. 21amples of actions ,uasi in rem are action for partition7 action for accounting7 attachment7 foreclosure of mortgage. An action in personam is not necessaril* a personal action. #or is a real action necessaril* an action in rem. An in personam or an in rem action is a classification of actions according to foundation. 5or instance7 an action to recover7 title to or possession of real propert* is a real action7 but it is an action in personam7 not brought against the whole world but against the person upon whom the claim is made. SC sums up the basic rules in Bi"co 6s. Phi i!!ine Countr+si'e *ur" B"n9 (2..:)0 !? 4he ,uestion of whether the trial court has %urisdiction depends on the nature of the action J whether the action is in personam7 in rem7 or ,uasi in rem. 4he rules on service of summons under Rule !' likewise appl* according to the nature of the action. "? An action in personam is an action against a person on the basis of his personal liabilit*. And action in rem is an action against the thing itself instead of against the person. An action ,uasi in rem is one wherein an individual is named as defendant and the purpose of the proceeding is to sub%ect his interest therein to the obligation or lien burdening the propert*. &? /urisdiction over the person of the defendant is necessar* for the court to validl* tr* and decide a case against said defendant where the action is one in personam but not where the action is in

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rem or ,uasi in rem. /urisdiction over the res is ac,uired either a. b* the sei@ure of the propert* under legal process7 whereb* it is brought into actual custod* of the law9 or b. as a result of the institution of legal proceedings7 in which the power of the court is recogni@ed and made effective.

b? 4here is no right of action where there is no cause of actionQ )AIL(RE TO STATE /A(SE O) A/TION 4he mere e1istence of a cause of action is not sufficient for a complaint to prosper. 2ven if in realit* the plaintiff has a cause of action against the defendant7 the complaint ma* be dismissed if the complaint or the pleading asserting the claim Mstates no cause of actionN. 4his means that the cause of action must unmistakabl* be stated or alleged in the complaint or that all the elements of the cause of action re,uired b* substantive law must clearl* appear from the mere reading of the complaint. 4o avoid an earl* dismissal of the complaint7 the simple dictum to be followed isE M:f *ou have a cause of action7 then b* all means7 state itQN <here there is a defect or an insufficienc* in the statement of the cause of action7 a complaint ma* be dismissed not because of an absence or a lack of cause of action b* because the complaint states no cause of action. 4he dismissal will therefore7 be anchored on a Mfailure to state a cause of actionN. :t doesnLt mean that the plaintiff has no cause of action. :t onl* means that the plaintiffLs allegations are insufficient for the court to know that the rights of the plaintiff were violated b* the defendant. 4hus7 even if indeed the plaintiff suffered in%ur*7 if the same is not set forth in the complaint7 the pleading will state no cause of action even if in realit* the plaintiff has a cause of action against the defendant. TEST O) T>E S())I/IEN/' O) A /A(SE O) A/TION 4he test is whether or not admitting the facts alleged7 the court could render a valid verdict in accordance with the pra*er of the complaint. 4o be taken into account are onl* the material allegations in the complaint9 e1traneous facts and circumstances or other matter " iun'e are not considered but the court ma* consider in addition to the complaint the appended anne1es or documents7 other pleadings of the plaintiff7 or admissions in the records. :t is error for the court to take cogni@ance of e1ternal facts or to hold preliminar* hearings to determine its e1istence. S,LITTIN+ A SIN+LE /A(SE O) A/TION AND

#onetheless7 summons must be served


upon the defendant not for the purpose of vesting the court with %urisdiction but merel* for satisf*ing the due process re,uirements. /A(SE O) A/TION ;R%$ 2= MEANIN+ O) /A(SE O) A/TION A cause of action is the act or omission b* which a part* >defendant? violates the rights of another >plaintiff?. :t is the delict or wrong b* which the defendant violates the right or rights of the plaintiff. T! $ m nts ar C !? A right in favor of the plaintiff b* whatever means and under whatever law it arises or is created9 "? An obligation on the part of the named defendant to respect or not to violate such right9 and &? Act or omission on the part of such defendant in violation of the right of the plaintiff or constituting a breach of the obligation of the defendant to the plaintiff for which the latter ma* maintain an action for recover* of damages or other appropriate relief. RI+>T O) A/TION VERS(S /A(SE O) A/TION

a? A cause of action refers to the delict or


wrong committed b* the defendants7 whereas right of action refers to the right of the plaintiff to institute the action9 b? A cause of action is determined b* the pleadings9 whereas a right of action is determined b* the substantive law9 a? A right of action ma* be taken awa* b* the running of the statute of limitations7 b* estoppels or other circumstances9 which do not at all affect the cause of action9

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ITS E))E/TS :t is the act of instituting two or more suits for the same cause of action (Sec. 8, *u e 2). :t is the practice of dividing one cause of action into different parts and making each part the sub%ect of a separate complaint. :n splitting a cause of action7 the pleader divides a single cause of action7 claim or demand into two or more parts7 brings a suit for one of such parts with the intent to reserve the rest for another separate. 4his practice is #34 ALL3<2D b* the Rules because it breeds multiplicit* of suits7 clogs the court dockets7 leads to ve1atious litigation7 operates as an instrument of harassment7 and generates unnecessar* e1penses to the parties. 4he filing of the first ma* be pleaded in abatement of the other or others and a %udgment upon the merits in an* one is available as a bar to7 or a ground for dismissal of7 the others 4he r m #y of the defendant is to file a motion to dismiss. 0ence7 if the first action is pending when the second action is filed7 the latter ma* be dismissed based on itis !en'enci"7 there is another action pending between the same parties for the same cause. :f a final %udgment had been rendered in the first action when the second action is filed7 the latter ma* be dismissed based on res &u'ic"t"7 that the cause of action is barred b* prior %udgment. As to which action should be dismissed would depend upon %udicial discretion and the prevailing circumstances of the case. .OINDER AND MIS.OINDER O) /A(SES O) A/TIONS ;SE/S& 3 AND 4? (LE 2= .oin# r o: ca%s s o: action is the assertion of as man* causes of action as a part* ma* have against another in one pleading alone (Sec. 5, *u e 2). :t is the process of uniting two or more demands or rights of action in one action7 sub%ect to the following conditionsE a? 4he part* %oining the causes of action shall compl* with the rules on %oinder of parties (s"$e tr"ns"ction "' co$$on (uestion of ") "n f"ct); b? 4he %oinder shall not include special civil actions governed b* special rules9 c? <here the cause of action are between the same parties but pertain to different venues or %urisdictions7 the %oinder ma* be allowed in the R4C provided one of the causes of action falls within the

%urisdiction of said court and the venue lies therein9 and d? <here the claims in all the causes of action are principall* for recover* of mone*7 the aggregate amount claimed shall be the test of %urisdiction (totality rule). #oteE Restrictions on %oinder of causes of action areE %urisdiction7 venue7 and %oinder of parties. 4he %oinder shall not include special civil actions or actions governed b* special rules. <hen there is a mis@oin# r o: ca%s s o: action7 the erroneousl* %oined cause of action can be severed or separated from the other cause of action upon motion b* a part* or upon the courtLs own initiative. $is%oinder of causes of action is not a ground for the dismissal of the case. ,ARTIES IN /IVIL A/TION ;R%$ 1= REAL ,ART'<IN<INTEREST (e.3. ! "intiff "n' 'efen'"nt) is the part* who stands to be benefited or in%ured b* the %udgment in the suit7 or the part* entitled to the avails of the suit (Sec. 2, *u e 3). 4he interest must be real7 which is a present substantial interest as distinguished from a mere e1pectanc* or a future7 contingent subordinate or conse,uential. :t is an interest that is material and direct7 as distinguished from a mere incidental interest in. <hile ordinaril* one who is not a priv* to a contract ma* not bring an action to enforce it7 there are recogni@ed e1ceptions this ruleE a? Contracts containing sti!u "tions !our "trui or stipulations e1pressl* conferring benefits to a non-part* ma* sue under the contract provided such benefits have been accepted b* the beneficiar* prior to its revocation b* the contracting parties (Art. 1311, Ci6i Co'e). b? 4hose who are not principall* or subsidiaril* obligated in the contract7 in which the* had no intervention7 ma* show their detriment that could result from it. 5or instance7 Art. !&!&7 CC7 provides that Mcreditors are protected in cases of contracts intended to defrauded themN. 5urther7 Art. !&!-7 CC7 provides that contracts

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entered into in fraud of creditors ma* be rescinded when the creditors cannot in an* manner collect the claims due them. 1hus, " cre'itor )ho is not " !"rt+ to " contr"ct c"n sue to rescin' the contr"ct to re'ress the fr"u' co$$itte' u!on hi$. INDIS,ENSABLE ,ART' is a real part*-ininterest without whom no final determination can be had of an action (Sec. :, *u e 3). <ithout the presence of this part*7 the %udgment of a court cannot attain real %udgement. 4he presence of indispensable parties is a condition for the e1ercise of %uridical power and when an indispensable part* is not before the court7 the action should be dismissed. 4he absence of indispensable part* renders all subse,uent actions of the court null and void for want of authorit* to act7 not onl* to the absent parties but even as to those present. A person is not an : if his interest in the controvers* or sub%ect matter is separable from the interest of the other parties7 so that it will not necessaril* be directl* or in%uriousl* affected b* a decree which does complete %ustice between them. Also7 a person is not an : if his presence would merel* permit complete relief between him and those alread* parties to the action7 or if he has no interest in the sub%ect matter of the action. Although normall* a %oinder of action is permissive (Sec. ;, *u e 3)7 the %oinder of a part* becomes compulsor* when the one involved is an indispensable part*. Clearl*7 the rule directs a compulsor* %oinder of IP (Sec. :, *u e 3). NE/ESSAR' ,ART' is one who is not indispensable but ought to be %oined as a part* if complete relief is to be accorded as to those alread* parties7 of for a complete determination or settlement of the claim sub%ect of the action. But a necessar* part* ought to be %oined as a part* if complete relief is to be accorded as to those alread* parties (Sec. <, *u e 3). 4he non-inclusion of a necessar* part* does not prevent the court from proceeding in the action7 and the %udgment rendered therein shall be without pre%udice to the rights of such necessar* part* (Sec. 9, *u e 3). INDI+ENT ,ART' is one who is allowed b* the court to litigate his claim7 action or defense upon e1 parte application and hearing7 when the court

is satisfied that such part* has no mone* or propert* sufficient and available for food7 shelter7 basic necessities for himself and his famil* (Sec. 21, *u e 3). :f one is authori@ed to litigate as an indigent7 such authorit* shall include an e1emption from the pa*ment of docket fee7 and of transcripts of stenographic notes7 which the court ma* order to e furnished b* him. 0owever7 the amount of the docket and other fees7 which the indigent was e1empt from pa*ing7 shall be lien on the %udgment rendered in the case favorable to the indigent. A lien on the %udgment shall or arise if the court provides otherwise. RE,RESENTATIVES AS ,ARTIES pertains to the parties allowed b* the court as substitute parties to an action whereb* the original parties become incapacitated of incompetent (Sec. 1<, *u e 3). 4he substitution of a part* depends on the nature of the action. :f the action is personal7 and a part* dies !en'ent ite7 such action does not survive7 and such part* cannot be substituted. :f the action is real7 death of the defendant survives the action7 and the heirs will substitute the dead. A favorable %udgment obtained b* the plaintiff therein ma* be enforced against the estate of the deceased defendant (Sec. 1, *u e <:). :n case a part* becomes incapacitated or incompetent during the pendenc* of the action7 the court7 upon motion7 ma* allow the action to be continued b* or against the incapacitated or incompetent part* with the assistance of his legal guardian or guardian "' ite$ (Sec. 1<, *u e 2.). :n case of transfer7 the action ma* be continued b* or against the original part*7 unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or %oined with the original part* (Sec. 19, *u e 3). An agent ma* sue or be sued without %oining his principal e1cept when the contract involve things belonging to the principal (=here the "ction is " o)e' to %e !rosecute' "n' 'efen'e' %+ " re!resent"ti6e or so$eone "ctin3 in " fi'uci"r+ c"!"cit+, the %enefici"r+ sh" %e inc u'e' in the tit e of the c"se "n' sh" %e 'ee$e' to %e the re" !ro!ert+ in interest, Sec. 3, *u e 3). ALTERNATIVE DE)ENDANTS are those who ma* be %oined as such in the alternative b* the plaintiff who is uncertain from whom among them he is entitled to a relief7 regardless of

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whether or not a right to a relief against one is inconsistent with that against the other >Sec. 13, *u e 3). <here the plaintiff cannot definitel* identif* who among two or more persons should be impleaded as a defendant7 he ma* %oin all of them as defendants in the alternative. /ust as the rule allows a suit against defendants in the alternative7 the rule also allows alternative causes of action (Sec. 2, *u e <) and alternative defenses (Sec. 5[%], *u e ;). /OM,(LSOR' AND ,ERMISSIVE .OINDER O) ,ARTIES .oin# r o: -arti s is com-%$sory if there are parties without whom no final determination can be had of an action (Sec. :, *u e 3). .oin# r o: -arti s is - rmissi0 when there is a right or relief in favor of or against the parties %oined in respect to or arising out of the same transaction or series of transactions7 and there is a ,uestion of law or fact common to the parties %oined in the action (Sec. ;, *u e 3). MIS.OINDER AND NON<.OINDER O) ,ARTIES A part* is a. mis@oin # when he is made a part* to the action although he should not be impleaded b. not @oin # when he is supposed to be %oined but is not impleaded in the action Bnder the rules7 neither mis%oinder nor non%oinder of parties is a ground for the dismissal of an action but failure to obe* the order of the court to drop or add a part* is a ground for the dismissal of the complaint (Sec. 3, *u e 1:). arties ma* be dropped or added b* order of the court on motion of an* part* or on its own initiative at an* stage of the action and on such terms as are %ust (Sec. 11, *u e 3). $is%oinder of parties does not involve ,uestions of %urisdiction and not a ground for dismissal. /LASS S(IT A class suit is an action where one or more ma* sue for the benefit of all if the re,uisites for said action are complied with. A class interest <hat is general suit does not re,uire commonalit* of in the ,uestions involved in the suit. re,uired b* the Rules is a common or interest in the sub%ect matter of the

litigation. 4he sub%ect matter of the action means the ph*sical7 the things real or personal7 the mone*7 lands7 chattels7 and the like7 in relation to the suit which is prosecuted and not the direct or wrong committed b* the defendant. :t is not also a common ,uestion of law that sustains a class suit but a common interest in the sub%ect matter of the controvers*. 4here is no class suit when interests are conflicting. 0ence7 for a class suit to prosper7 the following re,uisites must concurE a? 4he sub%ect matter of the controvers* must be of common or general interest to man* persons9 b? 4he persons are so numerous that it is impracticable to %oin all as parties9 c? 4he parties actuall* before the court are sufficientl* numerous and representative as to full* protect the interests of all concerned9 and d? 4he representatives sue or defend for the benefit of all (Sec.12, *u e 3). :t shall not be dismissed or compromised without the approval of the court. S(ITS A+AINST ENTITIES WIT>O(T .(RIDI/AL ,ERSONALIT' A corporation being an entit* separate and distinct from its members has no interest in the individual propert* of its members unless transferred to the corporation. Absent an* showing of interests7 a corporation has no personalit* to bring an action for the purpose of recovering the propert*7 which belongs to the members in their personal capacities. An entit* without %uridical personalit* ma* be sued under a common name b* which it is commonl* known when it represents to the plaintiff under a common name7 and the latter relies on such representation. ersons associated in an entit* without %uridical personalit* ma*be sued under the name b* which the* are generall* or commonl* known7 but the* cannot sue under such name. E))E/T O) DEAT> O) ,ART' LITI+ANT 4he death of the client e1tinguishes the attorne*client relationship and divests a counsel of his authorit* to represent the client. Accordingl*7 a dead client has no personalit* and cannot be represented b* an attorne*. #either does he

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become the counsel of the heirs of the deceased unless his services are engaged b* said heirs. <here the claim is not e1tinguished b* the death of the litigant7 upon the receipt of the notice of death7 the court shall order the legal representative or representatives of the deceased to appear and be substituted for the deceased within thirt* >&D? da*s from notice (Sec. 1;, *u e 3). 4he substitution of the deceased would not be ordered b* the court in cases where the death of the part* would e1tinguish the action because substitution is proper onl* when the action survives. <here the deceased has no heirs7 the court shall re,uire the appointment of an e1ecutor or administrator. 4his appointment is not re,uired where the deceased left an heir because the heir under the new rule7 ma* be allowed to be substituted for the deceased. :f there is an heir but the heir is a minor7 the court ma* appoint a guardian "' ite$ for said minor heir (Sec. 13, *u e 3). 4he court ma* appoint an e1ecutor or administrator whenE a? the counsel for the deceased does not name a legal representative9 or b? there is a representative named but he failed to appear within the specified period (Sec. 1;, *u e 3). VEN(E ;R%$ 2= ;enue is the place or the geographical area where an action is to be filed and tried. :n civil cases7 it relates onl* to the place of the suit and not to the %urisdiction of the court. VEN(E VERS(S .(RISDI/TION a? /urisdiction is the authorit* to hear and determine a case9 venue is the place where the case is to be heard or tried9 b? /urisdiction is a matter of substantive law9 venue of procedural law9 c? /urisdiction establishes a relation between the court and the sub%ect matter9 venue7 a relation between plaintiff and defendant7 or petitioner and respondent9 d? /urisdiction is fi1ed b* law and cannot be conferred b* the parties9 venue ma* be conferred b* the act or agreement of the parties9 and

e? Lack of %urisdiction over the sub%ect matter is


a ground for a $otu !ro!io dismissal9 venue is not a ground for a motu propio dismissal e1cept in cases sub%ect to summar* procedure. VEN(E O) REAL A/TIONS Actions affecting title to or possession of real propert*7 or interest therein7 shall be commenced and tried in the proper court which has %urisdiction over the area wherein the real propert* involved or a portion thereof is situated. 5orcible entr* and detainer actions shall be commenced and tried in the municipal trial court of the municipalit* or cit* wherein the real propert* involved7 or a portion thereof7 is situated (Sec. 1, *u e 8). VEN(E O) ,ERSONAL A/TIONS All other actions ma* be commenced and triedE a? where the plaintiff or an* of the principal plaintiffs resides7 or b? where the defendant or an* of the principal defendants resides all at the option of the plaintiff (Sec. 2, *u e 8). VEN(E O) A/TIONS A+AINST NON< RESIDENTS :f an* of the defendants does not reside and is not found in the hilippines7 and the action affects the personal status of the plaintiff7 or an* propert* of said defendant located in the hilippines7 the action ma* be !? commenced and tried in the court of the place where the plaintiff resides7 or "? where the propert* or an* portion thereof is situated or found (Sec. 3, *u e 8?7 or &? at the place where the defendant ma* be found at the option of the plaintiff (Sec. 2). W>EN T>E R(LES ON VEN(E DO NOT A,,L' 4he Rules do not appl* a? in those cases where a specific rule or law provides otherwise >i.e. action for damages arising from libel?9 or b? where the parties have validl* agreed in writing before the filing of the action on the e1clusive venue thereof >Sec. '7 Rule '?. E))E/TS O) STI,(LATIONS ON VEN(E

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4he parties ma* stipulate on the venue as long as the agreement is a? in writing b? made before the filing of the action7 and c? e1clusive as to the venue (Sec. 8[%], *u e 8). :n interpreting stipulations as to venue7 there is a need to in,uire as to whether or not the agreement is restrictive or not. :f the stipulation is R2S4R:C4:;27 the suit ma* be filed onl* in the place agreed upon b* the parties. :t must be reiterated and made clear that under Rule '7 the general rules on venue of actions shall not appl* where the parties7 before the filing of the action7 have validl* agreed in writing on an e1clusive venue. 4he mere stipulation on the venue of an action7 however7 is not enough to preclude parties from bringing a case in other venues. :f the intention of the parties were to restrict venue7 there must be accompan*ing language clearl* and categoricall* e1pressing their purpose and design that actions between them be litigated onl* at the place named b* them. 4he parties must be able to show that such stipulation is 2RCLBS:;2. :n the absence of ,ualif*ing or restrictive words7 the stipulation should be deemed as merel* an agreement on an additional forum7 not as limiting venue to the specified place. ,LEADIN+S ;R%$ s 4 < 11= leadings are written statements of the respective claims and defenses of the parties submitted to the court for appropriate %udgment (Sec. 1, *u e ;). leadings aim to define the issues and foundation of proof to be submitted during the trial7 and to apprise the court of the rival claims of the parties. 8INDS O) ,LEADIN+S ;R(LE 4= A& /OM,LAINT Complaint is the pleading alleging the plaintiffCs cause or causes of action7 stating therein the names and residences of the plaintiff and defendant >Sec. &7 Rule )? and should contain a concise statement of the ultimate facts constituting the plaintiffCs cause of action. B& ANSWER

An answer is a pleading in which a defending part* sets forth his defenses (Sec. 3, *u e ;). :t ma* allege legal provisions relied upon for defense (Sec. 1, *u e <). :t ma* be an answer to the complaint7 counterclaim or a cross-claim7 third part* complaint or complaint-inintervention. T! # : n#ant may s t %- t"o Fin#s o: # : ns sC 1& NE+ATIVE DE)ENSES a? #egative defenses are the specific denials of the material fact or facts alleged in the pleading of the claimant essential to his cause or causes of action (Sec. 5["], *u e ;). b? <hen the answer sets forth negative defenses7 the burden of proof rests upon the plaintiff7 and when the answer alleges affirmative defenses7 the burden of proof devolves upon the defendant. c? 4here are three t*pes specific denialsE

!.

Absolute denial - when the defend ant specif* each material allegation of fact the truth of which he does not admit and whenever practicable sets forth the substance of the matters upon which he relies to support such denial.

".

Partial denial J when the defendant does not make a total denial of the material allegations in a specific paragraph7 den*ing onl* a part of the averment. :n doing so he specifies that part of the truth of which he admits and denies onl* the remainder.

&.

enial by disavowal of !nowledge J when the defendant alleges having no knowledge or information sufficient to form a belief as to the truth of a material averment made in the complaint. Such denial must be made in good faith. <hen the matter denied b* a disavowal of knowledge is plainl* and necessaril* within the defendantCs knowledge7 such claim shall not be considered as a specific denial.

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:f the denial does not fall within the scope of the abovementioned kinds of a specific denial7 it shall be considered a 3ener" 'eni" which is considered as "n "'$ission of the "6er$ent not s!ecific" + 'enie'.

2& NE+ATIVE ,RE+NANT #egative pregnant is an admission in avoidance which does not ,ualif* as a specific denial. :t is a form of negative e1pression which carries with it an affirmation or at least an implication of some kind favorable to the adverse part*. :t is a a? b? c? d? e? f? g? 5raud Statute of limitations Release a*ment :llegalit* Statute of frauds 2stoppel

denial pregnant with an admission of the substantial facts alleged in the pleading. <here a fact is alleged with ,ualif*ing or modif*ing language and the words of the allegation as so ,ualified or modified are literall* denied7 the ,ualif*ing circumstances alone are denied while the fact itself is admitted. :t is not a specific denial and is usuall* an admission. A))IRMATIVE DE)ENSES Affirmative defenses are allegations of new matters which7 while h*potheticall* admitting the material allegations in the pleading of the claimant7 would nevertheless prevent or bar recover* b* him. Affirmative defenses includeE h? 5ormer recover* i? Discharge in bankruptc* %? An* other matter b* wa* of confession and avoidance (Sec. 5[%], *u e ;) b? <hen a pleader fails to set up a counterclaim through oversight7 inadvertence7 e1cusable negligence7 or when %ustice re,uires7 he ma*7 b* leave of court7 set up the counterclaim b* amendment of the pleadings before %udgment. ,oints to consi# rC a? A compulsor* counterclaim if not set up is barred b? :t re,uires no pa*ment of the docket fee c? #eed not be answered d? Does not need a certificate against forum shopping 2& ,ERMISSIVE /O(NTER/LAIM ermissive counterclaim is a counterclaim which does not arise out of nor is it necessaril* connected with the sub%ect matter of the opposing part*Cs claim. :t is not barred even if not set up in the action.

/& /O(NTER/LAIM A counterclaim is an* claim which a defending part* ma* have against an opposing part* (Sec. ;, *u e ;). :t is in itself a claim or cause of action interposed in an answer. :t is either compulsor* or permissive. 1& /OM,(LSOR' /O(NTER/LAIM A compulsor* counterclaim is one which7 being cogni@able b* the regular courts of %ustice7 arises out of or is connected with the transaction or occurrence constituting the sub%ect matter of the opposing part*Cs claim and does not re,uire for its ad%udication7 the presence of third parties of whom the court cannot ac,uire %urisdiction. Such a counterclaim must be within the %urisdiction of the court7 both as to the amount and the nature thereof7 e1cept that in an original action before the R4C7 the counterclaim ma* be considered compulsor* regardless of the amount (Sec. :, *u e ;). 4he failure of the defendant to set up a compulsor* counterclaim shall bar its institution7 sub%ect to the following e1ceptionsE a? :f the counterclaim matured or was ac,uired after the defendant had served his answer. :n such case7 it ma* be pleaded b* filing a supplemental answer or pleading before %udgment9 and

T! r E%ir m nts o: a - rmissi0 co%nt rc$aim ar C !? :t does not re,uire for its ad%udication the presence of third parties of whom the court cannot ac,uire %urisdiction9

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"? :t must be within the %urisdiction of the court wherein the case is pending and is cogni@able b* the regular courts of %ustice9 and &? :t does not arise out of the same transaction or series of transactions sub%ect of the complaint. ,oints to consi# rC a? even if not set up is not barred because it doesnCt arise out of the same transaction as that of the complaint b? it can be brought as a separate action in itself c? docket fee must be paid d? it must be answered b* the adverse part* to prevent default e? it needs a certificate against forum shopping. 1& E))E/T ON T>E /O(NTER/LAIM W>EN T>E /OM,LAINT IS DISMISSED :f a counterclaim has alread* been pleaded b* the defendant prior to the service upon him of the plaintiffLs motion to dismiss7 and the court grants the said motion to dismiss7 the dismissal shall be limited to the complaint (Sec. 2, *u e 1:). 4he dismissal upon motion of plaintiff shall be without pre%udice to the right of the defendant to prosecute the counterclaim. 4he defendant if he so desires ma* prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action7 he must notif* the court of his preference within !( da*s from notice of the plaintiffLs motion to dismiss. Should he opt to prosecute his counterclaim in a separate action7 the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. 4he dismissal of the complaint under Sec. 3 >due to fault of plaintiff? is without pre%udice to the right of the defendant to prosecute his counterclaim in the same action or in a separate action. 4his dismissal shall have the effect of ad%udication upon the merits7 unless otherwise declared b* the court. 4he dismissal of the main action does not carr* with it the dismissal of the counterclaim (Sec. ;, *u e 1;). D& /ROSS</LAIMS

A cross-claim is an* claim b* one part* against a co-part* arising out of the transaction or occurrence that is the sub%ect matter either of the original action or of a counterclaim therein. Such cross-claim ma* include a claim that the part* against whom it is asserted is or ma* be liable to the cross-claimant for all of part of a claim asserted in the action against the crossclaimant (Sec. <, *u e ;). E& T>IRD ;)O(RT><ET/&= ,ART' /OM,LAINTS :t is a claim that a defending part* ma*7 with leave of court7 file against a person not a part* to the action7 called the third >fourth7 etc.?Jpart* defendant7 for contribution7 indemnit*7 subrogation or an* other relief7 in respect of his opponentLs claim. )& /OM,LAINT<IN<INTERVENTION Complaint-in-intervention is a pleading whereb* a third part* asserts a claim against either or all of the original parties. :f the pleading seeks to unite with the defending part* in resisting a claim against the latter7 he shall file an answerin-intervention. :f at an* time before %udgment7 a person not a part* to the action believes that he has a legal interest in the matter in litigation in a case in which he is not a part*7 he ma*7 with leave of court7 file a complaint-in-intervention in the action if he asserts a claim against one or all of the parties. +& RE,L' Repl* is a pleading7 the office or function of which is to den*7 or allege facts in denial or avoidance of new matters alleged b* wa* of defense in the answer and thereb* %oin or make issue as to such matters. 2ven if a part* does not file such repl*7 all the new matters alleged in the answer are deemed controverted (Sec. 1., *u e ;). But *ou need to file a repl* if there is an actionable document den*ing the due e1ecution of such document under oath ,LEADIN+S ALLOWED IN SMALL /LAIM /ASES AND /ASES /OVERED B' T>E R(LES ON S(MMAR' ,RO/ED(RE 4he onl* pleadings allowed under the Rules on Summar* rocedure are

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a? Complaint b? C3$ BLS3RH C3B#42RCLA:$ pleaded in the answer7 c? cross-claim pleaded in the answer7 d? answers these pleadings must be verified. 4he onl* pleadings allowed under small claim cases areE a? Statement of claim b? Response c? Counterclaim in the response ,ARTS O) A ,LEADIN+ ;R(LE 5= 4he parts of a pleading under Rule + areE the caption >Sec. !?7 the te1t or the bod* >Sec. "?7 the signature and address >Sec. &?7 the verification >Sec. '?7 and the certification against forum shopping >Sec. (?. /A,TION 4he caption must set forth the name of the court7 the title of the action7 and the docket number if assigned. 4he title of the action indicates the names of the parties. 4he* shall all be named in the original complaint or petition9 but in subse,uent pleadings7 it shall be sufficient if the name of the first part* on each side be stated with an appropriate indication when there are other parties. 4heir respective participation in the case shall be indicated. SI+NAT(RE AND ADDRESS 2ver* pleading must be signed b* the part* or counsel representing him7 stating in either case his address which should not be a post office bo1. 4he signature of counsel constitutes a certificate b* him that he has read the pleading9 that to the best of his knowledge7 information7 and belief there is good ground to support it9 and that it is not interposed for dela*. An unsigned pleading produces no legal effect. 0owever7 the court ma*7 in its discretion7 allow such deficienc* to be remedied if it shall appear that the same was due to mere inadvertence and not intended for dela*. Counsel who deliberatel* files an unsigned pleading7 or signs a pleading in violation of the Rule7 or alleges scandalous or

indecent matter therein7 or fails to promptl* report to the court a change of his address7 shall be sub%ect to appropriate disciplinar* action. :n ever* pleading7 counsel has to indicate his professional ta1 receipt > 4R? and :B receipt7 the purpose of which is to see to it that he pa*s his ta1 and membership due regularl*. VERI)I/ATION A verification of a pleading is "n "ffir$"tion un'er o"th %+ the !"rt+ $"9in3 the ! e"'in3 th"t he is !re!"re' to est"% ish the truthfu ness of the f"cts )hich he h"s ! e"'e' %"se' on his o)n !erson" 9no) e'3e. 4he general rule under7 Sec. '. Rule + is that7 pleading need not be under oath. 4his means that a pleading need not be verified. A pleading will be verified onl* when a verification is re,uired b* a law or b* a rule. A pleading is verified b* an affidavit7 which declares thatE a? the affiant has read the pleading7 and b? the allegations therein are true and correct to his personal knowledge or based on authentic records. 4he verification re,uirement is significant7 as it is intended to secure an assurance that the allegations in a pleading are true and correct and not the product of the imagination or a matter of speculation7 and that the pleading is filed in good faith. 4he absence of proper verification is cause to treat the pleading as unsigned and dismissible. :t is7 however7 been held that the absence of a verification or the non-compliance with the verification re,uirement does not necessaril* render the pleading defective. :t is onl* a formal and not a %urisdictional re,uirement. 4he re,uirement is a condition affecting onl* the form of the pleading (S"r$einto 6s. >"r"t"n, 2..:). 4he absence of verification ma* be corrected b* re,uiring an oath. 4he court ma* order the correction of the pleading or act on an unverified pleading if the attending circumstances are such that strict compliance would not full* serve substantial %ustice7 which after all7 is the basic aim for the rules of procedure (*o%ert 4e6e o!$ent Cor!. 6s. ?uit"in, 315 SC*A 15.). /ERTI)I/ATION A+AINST )OR(M<S>O,,IN+

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#eeded in initiator* pleadings 4he certification against forum shopping is a sworn statement certif*ing to the following mattersE !? 4hat the part* has #34 C3$$2#C2D or filed an* claim involving the same issues in an* court7 tribunal7 or ,uasi-%udicial agenc* and7 to the best of his knowledge7 no such other action or claim is pending9 "? 4hat if there is such other pending action or claim7 a complete statement of the present S4A4BS thereof9 and &? 4hat if he should therefore learn that the same or similar action or claim has been filed or is pending7 he shall R2 3R4 40A4 5AC4 within five >(? da*s therefrom to the court wherein his aforesaid complaint or initiator* pleading has been filed. 5ailure to compl* with the foregoing re,uirements shall not be curable b* mere amendment of the complaint or other initiator* pleading but shall be cause for the dismissal of the case without pre%udice7 unless otherwise provided7 upon motion and after hearing. 4he submission of a false certification or noncompliance with an* of the undertakings therein shall constitute indirect contempt of court7 without pre%udice to the corresponding administrative and criminal actions. :f the acts of the part* or his counsel clearl* constitute willful and deliberate forum shopping7 the same shall be ground for summar* dismissal with pre%udice and shall constitute direct contempt7 as well as a cause for administrative sanctions (Sec. 5, *u e :). ossible ;iolations >as per Dean Riano?E !? Non<com-$ianc "it! t! %n# rtaFing J dismissal without pre%udice "? )a$s / rti:ication indirect contempt7 administrative and criminal sanction &? Wi$:%$ an# # $i9 rat :or%m s!o--ing J ground for summar* dismissal with pre%udice without motion and hearing9 it has administrative but without criminal sanctions So7 if the dismissal is without pre%udice7 *our remed* is certior"ri; if with pre%udice7 the remed* is appeal (Sec. 1(3), *u e 81) 4he dismissal is not a sub%ect of appeal if the order

of dismissal is without pre%udice. 4he certification is mandator* under Sec. 5, *u e :, but not %urisdictional. 4here is forum shopping when a? as a result of an adverse opinion in one forum7 a part* seeks a favorable opinion7 other than b* appeal or certiorari in another forum b? a part* institutes two or more suits in different courts7 either simultaneousl* or successivel*7 in order to ask the courts to rule on the same or related causes and6or to grant the same or substantiall* the same reliefs on the supposition that one or the other court would make a favorable disposition or increase a part*Ls chances of obtaining a favorable decision or action c? the elements of litis pendentia are present or where a final %udgment in one case will amount to res %udicata in another. :t is an act of malpractice7 as the litigants trifle with the courts and abuse their processes. :t is improper conduct and degrades the administration of %ustice. :f the act of the part* or its counsel clearl* constitutes wilful and deliberate forum-shopping7 the same shall constitute direct contempt7 and a cause for administrative sanctions7 as well as a ground for the summar* dismissal of the case with pre%udice (,ontes 6s. CA,"+ 8, 2..;) It is t! -$ainti:: or -rinci-a$ -arty "!o x c%t s t! c rti:ication %n# r oat!? an# not t! attorn y. :t must be signed b* the part* himself and cannot be signed b* his counsels. As a general and prevailing rule7 a certification signed b* counsel is a defective certification and is a valid cause for dismissal. 4his is the general and prevailing rule. A certification b* counsel and not b* the principal part* himself is no certification at all. 4he reason for re,uiring that it must be signed b* the principal part* himself is that he has actual knowledge7 or knows better than an*one else7 whether he has initiated similar action6s in other courts7 agencies or tribunals. 4his certification is not necessar* when what is filed is a mere motion for e1tension7 or in criminal cases and distinct causes of action. REA(IREMENTS O) A /OR,ORATION E*E/(TIN+ T>E

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VERI)I/ATIONB/ERTI)I/ATION ON NON< )OR(M S>O,,IN+ A %uridical entit*7 unlike a natural person7 can onl* perform ph*sical acts through properl* delegated individuals. 4he certification against forum shopping where the plaintiff or a principal part* is a %uridical entit* like a corporation ma* be e1ecuted b* properl* authori@ed persons. 4his person ma* be the law*er of a corporation. As long as he is dul* authori@ed b* the corporation and has personal knowledge of the facts re,uired to be disclosed in the certification against forum shopping7 the certification ma* be signed b* the authori@ed law*er. E))E/T O) T>E SI+NAT(RE O) /O(NSEL IN A ,LEADIN+ CounselCs signature signifies thatE a? 0e has read the pleading9 b? 4hat to the best of his knowledge7 information and belief there is a good ground to support it9 and c? 4hat it is not interposed for dela*. ALLE+ATIONS IN A ,LEADIN+ 2ver* pleading shall contain in a mathematical and logical form7 a plain7 concise and direct statement of the ultimate facts on which the part* relies for his claim and defense7 as the case ma* be7 containing the statement of mere evidenciar* facts (Sec. 1, *u e <). MANNER O) MA8IN+ ALLE+ATIONS ;R(LE 6= ,LEADIN+ /ONDITION ,RE/EDENT Conditions precedents are matters which must be complied with before a cause of action arises. <hen a claim is sub%ect to a condition precedent7 the compliance of the same must be alleged in the pleading. 5ailure to compl* with a condition precedent is an independent ground for a motion to dismissE that a condition precedent for filing the claim has not been complied (Sec. 1[&], *u e 1;) (i.e. %"r"n3"+ conci i"tion, 'e$"n', etc) ,LEADIN+ A .(D+MENT :n pleading a %udgment or decision of a domestic or foreign court7 %udicial or ,uasi-%udicial tribunal7

or of a board or officer7 it is sufficient to aver the %udgment or decision without need of alleging matters showing the %urisdiction to render such decision. ,LEADIN+ )RA(D? MISTA8E? MALI/E? INTENT? 8NOWLED+E AND OT>ER /ONDITION O) T>E MIND .(D+MENTS O))I/IAL DO/(MENTS OR A/TS <hen making averments of 5RABD 3R $:S4A=27 402 C:RCB$S4A#C2S C3#S4:4B4:#8 SBC0 5RABD 3R $:S4A=2 must be stated with particularit* (Sec. 5, *u e <). :t is not enough therefore7 for the complaint to allege that he was defrauded b* the defendant. Bnder this provision7 the complaint must state with AR4:CBLAR:4H the fraudulent acts of the adverse part*. 4hese particulars would necessaril* include the time7 place and specific acts of fraud committed against him. $AL:C27 :#42#47 =#3<L2D82 3R 3402R C3#D:4:3#S 35 402 $:#D of a person ma* be averred 82#2RALLH (Sec. 5, *u e <). Bnlike in fraud or mistake7 the* need not be stated with particularit*. 4he rule is borne out of human e1perience. :t is difficult to state the particulars constituting these matters. 0ence7 a general averment is sufficient.

,LEADIN+ AN A/TIONABLE DO/(MENT An actionable document is a document relied upon b* either the plaintiff or the defendant. <henever an actionable document is the basis of a pleading7 the rule specificall* direct the pleader toE a? set forth in the pleading the substance of the instrument or the document9 or b? to attach the original or the cop* of the document to the pleading as an e1hibit and to be part of the pleading9 or c? to set forth in the pleading said cop* of the instrument or document (Sec. :, *u e <). 4his manner of pleading a document applies onl* to one which is the basis of action or a defense. 0ence7 if the document does not have the character of an actionable document7 as when it is merel* evidentiar*7 it need not be pleaded strictl*. S,E/I)I/ DENIALS

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4here are three modes of specific denial which are contemplated b* the Rules7 namel*E a? B* specif*ing each material allegation of the fact in the complaint7 the truth of which the defendant does not admit7 and whenever practicable7 setting forth the substance of the matter which he will rel* upon to support his denial9 b? B* specif*ing so much of the averment in the complaint as is true and material and den*ing onl* the remainder9 c? B* stating that the defendant is without knowledge or information sufficient to form a belief as to the truth of a material averment in the complaint7 which has the effect of denial. 4he purpose of re,uiring the defendant to make a specific denial is to make him disclose the matters alleged in the complaint which he succinctl* intends to disprove at the trial7 together with the matter which he relied upon to support the denial. 4he parties are compelled to la* their cards on the table. E))E/T O) )AIL(RE TO MA8E S,E/I)I/ DENIALS $aterial allegations7 e1cept unli,uidated damages7 not specificall* denied are deemed admitted (Sec. 11, *u e <). :f the allegations are deemed admitted7 there is no more triable issue between the parties and if the admissions appear in the answer of the defendant7 the plaintiff ma* file a motion for %udgment on the pleadings under Rule &'. An admission in a pleading cannot be controverted b* the part* making such admission because the admission is conclusive as to him. All proofs submitted b* him contrar* thereto or inconsistent therewith should be ignored whether an ob%ection is interposed b* a part* or not. Said admission is a %udicial admission7 having been made b* a part* in the course of the proceedings in the same case7 and does not re,uire proof. A part* who desires to contradict his own %udicial admission ma* do so onl* be either of two wa*sE a? b* showing that the admission was made through palpable mistake9 or b? that no such admission was made (Sec. 8, *u e 129).

4he following are not # m # a#mitt # b* the failure to make a specific denialE a? 4he amount of unli,uidated damages9 b? Conclusions in a pleading which do not have to be denied at all because onl* ultimate facts need be alleged in a pleading9 c? #on-material allegations7 because onl* material allegations need be denied. W>EN A S,E/I)I/ DENIAL REA(IRES AN OAT> Specific denials which must be under oath to be sufficient areE a? A denial of an actionable document (Sec. <, *u e <); b? A denial of allegations of usur* in a complaint to recover usurious interest (Sec. 11, *u e <). E))E/T O) )AIL(RE TO ,LEAD ;R(LE 7= )AIL(RE TO ,LEAD DE)ENSES AND OB.E/TIONS Defenses or ob%ections not pleaded either in a motion to dismiss or in the answer are deemed waived. 21ceptionsE a? Lack of %urisdiction over the sub%ect matter9 b? 4hat there is another action pending between the same parties for the same cause ( itis !en'enti"); c? 4hat the action is barred b* the statute of limitations (!rescri!tion); ') *es &u'ic"t". :n all these cases7 the court shall dismiss the claim. )AIL(RE TO ,LEAD A /OM,(LSOR' /O(NTER/LAIM AND /ROSS</LAIM A compulsor* counterclaim or a cross-claim not set up shall be barred >Sec. "7 Rule .?. DE)A(LT Default is a procedural concept that occurs when the defending part* fails to file his answer within the reglementar* period. :t does not occur from the failure of the defendant to attend either the pre-trial or the trial.

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W>EN A DE/LARATION O) DE)A(LT IS ,RO,ER :f the defending part* fails to ans" r within the time allowed therefor7 the court shall7 upon motion of the c$aiming -arty with notic to the # : n#ing -arty7 and -roo: o: s%c! :ai$%r 7 declare the defending part* in default (Sec. 3, *u e 9). :n order for the court to declare the defendant in default the following re,uisites must be presentE !. 4he court must have validl* ACAB:R2D /BR:SD:C4:3# over the person of the defendant either b* service of summons or voluntar* appearance9 ". 4he defendant 5A:LS 43 A#S<2R within the time allowed therefore9 &. 4here must be a MOTION to declare the defendant in default9 '. 4here must be #34:C2 to the defendant b* serving upon him a cop* of such motion9 (. 4here must be R335 of such failure to answer9 and ). 4here must be a 02AR:#8 to declare the defendant in default. :t is not correct to declare a part* in default of the defending part* filed an answer E))E/T O) AN ORDER O) DE)A(LT !? 4he part* declared in default loses his standing in court preventing him from taking part in the trial9 "? 4he part* in default shall still be entitled to notices of subse,uent proceedings as well as to receive notice that he was declared in default9 &? 4he declaration of default is not an admission of the truth or validit* of the plaintiffCs claims. RELIE) )ROM AN ORDER O) DE)A(LT REMED' )ROM T>E NOTI/E O) ORDER AND BE)ORE .(D+MENTC MOTION TO SET ASIDE ORDER O) DE)A(LT7 showing that a? the failure to answer was due to fraud7 accident7 mistake7 or e1cusable negligence7 and b? the defendant has a meritorious defenseSthere must be an affidavit of merit (Sec. 3[%], *u e 9).

REMED' A)TER .(D+MENT B(T BE)ORE )INALIT'C MOTION )OR NEW TRIAL (*u e 3:); MOTION )OR RE/ONSIDERATION9 or A,,EAL from the %udgment as being contrar* to the evidence or the law (*u e 81). Hou can directl* file an appeal without passing $R and $#49 or *ou can $R6$#4 and if denied7 then *ou can still file an appeal and have a new Mfresh !( da*N period of appeal >#e*pes doctrine? 4his #e*pes doctrine on Mfresh period of appealN applies to Rule '( and Sec. & >e? of Rule !"". 4he purpose of the doctrine standardi@e the period of appeal. is to

4he appeal shall be taken within fifteen

(1") days from notice of the #udgment or final order appealed from. <here a record on appeal is re,uired7 the appellant shall file a notice of appeal and a record on appeal within thirt* >&D? da*s from notice of the %udgment or final order.

So the period of appeal is 13 #ays :rom


notic o: @%#gm nt or 13 #ays :rom :ina$ or# r a-- a$ # :rom&

4he SC ruled in one case that this Mfresh


period of appealN is applicable in criminal cases ($udith %u vs. $udge &amson, 'eb. (, 2011) REMED' A)TER .(D+MENT BE/OMES )INAL AND E*E/(TOR'C ,ETITION )OR RELIE) )ROM .(D+MENT (*u e 3<); A/TION )OR N(LLIT' O) .(D+MENT (*u e 8:). I: t! or# r o: # :a%$t is 0a$i#? )ertiorari is not a0ai$a9$ . :f the default order was improvidentl* issued7 that is7 the defendant was declared in default7 without a motion7 or without having served with summons before the e1piration of the reglementar* period to answer7 certior"ri is available as a remed*. E))E/T O) A ,ARTIAL DE)A(LT

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<hen a pleading asserting a claim states a common cause of action against several defending parties7 some of whom answer and the others fail to do so7 the court shall tr* the case against all upon the answers thus filed and render %udgment upon the evidence presented (Sec. 33[c], *u e 9). Default is onl* against those defendant who didnCt file the answer but the* can also benefit from the answering defendants E*TENT O) RELIE) A %udgment rendered against a part* in default ma* not e1ceed the amount or be different from that pra*ed for nor include unli,uidated damages which are not awarded (Sec. 3[c], *u e 9). :n fact7 there can be no automatic grant of relief as the court has to weigh the evidence. 4he court ma* render %udgment before or after the presentation of evidence. So the court ma* award unli,uidated damages in case where the court default defendant in default after the presentation of the evidence. A/TIONS W>ERE DE)A(LT ARE NOT ALLOWED !? "? &? '? Annulment of marriage9 Declaration of nullit* of marriage9 Legal separation :n special civil actions of certiorari7 prohibition and mandamus where comment instead of an answer is re,uired to be filed9 and (? Summar* procedure. )ILIN+ AND SERVI/E O) ,LEADIN+S ;R(LE 11= ,A'MENT O) DO/8ET )EES :t is not simpl* the filing of the complaint or appropriate initiator* pleading but the pa*ments of the prescribed docket fee that vests a trial court with /BR:SD:C4:3# over the sub%ect matter or nature of the action. :n connection with the pa*ment of docket fees7 the court re,uires that all complaints7 petitions7 answers and similar pleadings must specif* the amount of damages being pra*ed for both in the bod* of the pleading and in pra*er therein and said damages shall be considered in the assessment of the filing fees9

otherwise such pleading shall not be accepted for filing or shall be e1punged from the record. An* defect in the original pleading resulting in underpa*ment of the docket fee cannot be cured b* amendment7 such as b* the reduction of the claim as7 for all legal purposes7 there is no original complaint over which the court has ac,uired %urisdiction. 4he rule on pa*ment of docket fee has7 in some instances7 been sub%ect to the rule on L:B2RAL :#42R R24A4:3#. 4hus7 in a case7 it was held that while the pa*ment of the re,uired docket fee is a %urisdictional re,uirement7 even its nonpa*ment at the time of filing does not automaticall* cause the dismissal of the case7 as long as the fee is paid within the applicable prescriptive or reglementar* period. Also7 if the amount of docket fees is insufficient considering the amount of the claim7 the part* filing the case will be re,uired to pa* the deficienc*7 but %urisdiction is not automaticall* lost. <ithin the period for taking an A 2AL7 the appellant shall pa* to the clerk of court which rendered the %udgment or final order appealed from7 the full amount of the appellate court docket and other lawful fees (Sec. 8, *u e 81). 0ence7 the Rule now re,uires that appellate docket and other lawful fees must be paid within the same period for taking an appeal. Such pa*ment of docket fee within the prescribed period is mandator* for the perfection of an appeal. <ithout such pa*ment7 the appellate court does not ac,uire %urisdiction over the sub%ect matter of the action and the decision sought to be appealed from becomes final and e1ecutor. 0ence7 nonpa*ment is a valid ground for the dismissal of an appeal. 0owever7 dela* in the pa*ment of the docket fees confers upon the court a discretionar*7 not a mandator* power to dismiss an appeal. )ILIN+ VERS(S SERVI/E O) ,LEADIN+S 5:L:#8 is the act of presenting the pleading or other paper to the clerk of court9 S2R;:C2 is the act of providing a part* with a cop* of the pleading or paper concerned (Sec. 2, *u e 13). ,ERIODS O) )ILIN+ O) ,LEADIN+S

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4he date of the mailing of motions7 pleadings7 or an* other papers or pa*ments or deposits7 as shown b* the post office stamp on the envelope or the registr* receipt7 shall be considered as the date of their filing7 pa*ment7 or deposit in court. 4he envelope shall be attached to the record of the case (Sec. 3, *u e 13) 402 )ILIN+ O) RES,ONSIVE ,LEADIN+S S>ALL >AVE T>E )OLLOWIN+ ,ERIODS

4he same periods shall appl* to answers filed on an amended counterclaim 7 cross claim and third part* complaint.

)? Answer to counterclaim or cross,


claim within !D da*s from service .) Answer to third,party complaint the period to answer shall be the same as the periods given in answering a complaint which shall either be !(7 &D or )D da*s as the case ma* be.

!? Answer to the complaint


within !( da*s after service of summons unless a different period is fi1ed b* the court. 2) Answer of a defendant foreign private #uridical entity a. :f it has a resident agent within !( da*s after service of summons to such agent. b. :f it has no resident agent but it has an agent or officer in the hilippines within !( da*s after service of summons to said agent or officer. c. :f it has no resident agent7 agent or officer the service of summons shall be made on the proper government office which will then forward it b* registered mail within !D da*s to the corporationCs office the answer must be filed within &D da*s from the receipt of the summons b* the home office. *) +hen the service is made by publication within the time specified in the order granting leave to serve summons b* publication which shall not be less than )Dm da*s after notice.

-? /eply
within !D da*s from the service of the pleading responded to. () Answer to supplemental complaint within !D da*s from notice of the order admitting the supplemental complaint unless a different period is fi1ed b* the court. MANNER O) )ILIN+ B* 2RS3#AL S2R;:C2 or b* R28:S42R2D $A:L. 4he filing of pleadings7 appearances7 motions7 notices7 orders7 %udgments and all other papers shall be made b* presenting the original copies thereof7 plainl* indicated as such7 personall* to the clerk of court or b* sending them b* registered mail >Registr* Service?. :n the first case7 the clerk of court shall endorse on the pleading the date and hour of filing. :n the second case7 the date of the mailing of motions7 pleadings7 or an* other papers or pa*ments or deposits7 as shown b* the post office stamp on the envelope or the registr* receipt7 shall be considered as the date of their filing7 pa*ment7 or deposit in court. 4he envelope shall be attached to the record of the case (Sec. 3, *u e 13). MODES O) SERVI/E 4here are two modes of service of pleadings7 %udgments7 motions7 notices7 orders7 %udgments and other papersE a? personall*7 or b? b* mail. 0owever7 if personal service and serviced b* mail cannot be made7 service shall be done b* substituted service. ,ERSONAL SERVI/E

'? +hen

the defendant is a non, resident on whom e-traterritorial service is made within )D da*s from such service. ") Answer to an amended complaint where the amendment is a matter of right7 within !( da*s from the service of amended complaint. :f the amendment is #34 a matter of right7 the answer must be filed within !D da*s from notice of the order admitting the same.

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:t is the preferred mode of service. :f another mode of service is used other than personal service7 the service must be accompanied b* a written e1planation wh* the service of filing was not done personall*. 21empt from this e1planation are papers emanating from the court. A violation of this e1planation re,uirement ma* be a cause for the paper to be considered as not having been filed (Sec. 11, *u e 13). ersonal service is made b*E a? delivering a cop* of the papers served personall* to the part* or his counsel7 or b? b* leaving the papers in his office with his clerk or a person having charge thereof7 or c? :f no person is found in the office7 or his office is not known or he has no office7 then b* leaving a cop* of the papers at the part*Cs or counselLs residence7 if known7 with a person of sufficient age and discretion residing therein between eight in the morning and si1 in the e6enin3 (Sec. ;, *u e 13). SERVI/E B' MAIL 4he preferred service b* mail is b* registered mail. :t is deemed complete upon actual receipt b* the addressee or after ( da*s from the date he received the first notice of the postmaster whichever is earlier. Service b* ordinar* mail ma* be done onl* if no registr* service is available in the localit* of either the sender or the addressee (Sec. :, *u e 13). :t shall be done b* depositing the cop* in the post office7 in a sealed envelope7 plainl* addressed to the part* or his counsel at his office7 if known7 or otherwise at his residence7 if known7 with postage full* prepaid7 and with instructions to the postmaster to return the mail to the sender after ten >!D? da*s if not delivered. S(BSTIT(TED SERVI/E ;)ILIN+= 4his mode is availed of onl* when there is failure to effect service personall* or b* mail. 4his failure occurs when the office and residence of the part* or counsel is unknown. :t is effected b* delivering the cop* to the clerk of court7 with proof of failure of both personal service and service b* mail >Sec. -7 Rule !&?. Substituted service is complete at the time of deliver* of the cop* to the clerk of court.

SERVI/E O) .(D+MENTS? )INAL ORDERS OR RESOL(TIONS 5inal orders or %udgments shall be served either personall* or b* registered mail. <hen a part* summoned b* publication has failed to appear in the action7 final orders or %udgments against him shall be served upon him also b* publication at the e1pense of the prevailing part* >Sec. .?. ,RIORITIES IN MODES O) SERVI/E AND )ILIN+ ersonal service is the preferred mode of service.

4he preferred service b* mail is b* registered mail.

4he following papers are re,uired to be


filed in court and served upon the parties affectedE >a? /udgments9 >b? Resolutions9 >c? 3rders9 >d? leadings subse,uent to the complaint9 >e? <ritten motions9 >f? #otices9 >g? Appearances9 >h? Demands9 >i? 3ffers of %udgment9 >%? Similar papers (Sec. 8, *u e 13). W>EN SERVI/E IS DEEMED /OM,LETE ersonal service is deemed complete upon the actual deliver* following the above procedure (Sec. 1., *u e 13). Service b* ordinar* mail is deemed complete upon the e1piration of ten >!D? da*s after mailing7 unless the court otherwise provides. 3n the other hand7 service b* registered mail is complete upon actual receipt b* the addressee7 or after five >(? da*s from the date he received the first notice of the postmaster7 whichever is earlier (Sec. <, *u e 13). Substituted service is complete at the time of deliver* of the cop* to the clerk of court. ,ROO) O) )ILIN+ AND SERVI/E ,ROO) O) )ILIN+ 4he filing of a pleading or paper is proved b* its e1istence in the record. :f it is not in the record !? :f filed 2RS3#ALLHE roved b* the written or stamped acknowledgement of its filing b* the clerk of court on a cop* of the same9 or "? :f filed b* R28:S42R2D $A:LE

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roved b* the registr* receipt A#D the affidavit of the person who did the mailing with a full statement ofE a? 4he date and place of depositing the mail in the post office in a sealed envelope assessed to the court9 b? <ith postage full* paid9 and c? <ith the instructions to the postmaster to return the mail to the sender after !D da*s if undelivered.

even if no responsive pleading has *et been served7 if the amendment is subse,uent to a previous amendment made as a matter of right7 the subse,uent amendment must be with leave of court. So *ou can amend the complaint to correct the error of %urisdiction as a matter of right >without leave of court? before a responsive pleading is served even though there is alread* a motion to dismiss filed for lack of %urisdiction. 4he court should den* the motion since such motion is not a responsive pleading. #oteE 4he amendment as a matter of right should be filed before the order to dismiss becomes final. AMENDMENTS B' LEAVE O) /O(RT Leave of court is re,uired for substantial amendment made after service of a responsive pleading (Sec. 3, *u e 1.). 4he plaintiff7 for e1ample7 cannot amend his complaint b* changing his cause of action or adding a new one without leave of court. After a responsive pleading is filed7 an amendment to the complaint ma* be substantial and will correspondingl* re,uire a substantial alteration in the defenses of the adverse part*. 4he amendment of the complaint is not onl* unfair to the defendant but will cause unnecessar* dela* in the proceedings. Leave of court is thus7 re,uired. <here no responsive pleading has *et been served7 no defenses would be altered. 4he amendment of the pleading will not then re,uire leave of court. )ORMAL AMENDMENT A defect in the designation of the parties and other clearl* clerical or t*pographical errors ma* be s%mmari$y corr ct # b* the court at an* stage of the action7 at its initiative or on motion7 provided no pre%udice is caused thereb* to the adverse part* (Sec. 8, *u e 1.). AMENDMENTS TO /ON)ORM TO OR A(T>ORIGE ,RESENTATION O) EVIDEN/E <hen issues not raised b* the pleadings are tried with the e1press or implied consent of the parties7 the* shall be treated in all respects as if the* had been raised in the pleadings. Such amendment of the pleadings as ma* be necessar* to cause them to conform to the evidence and to raise these issues ma* be made

,ROO) O) SERVI/E !? roof of personal service shall consist ofE the written admission of the part* served9 or 4he official return of the server9 or 4he affidavit of the part* serving >in case of refusal to receive?7 containing full information of the date7 place and manner of service (Sec. 13, *u e 13). "? roof of service b* registered mail Shall be shown b* the affidavit of the mailer showing compliance with Sec. :, *u e 13 and the registr* receipt issued b* the mailing office and present the document returned or the card. &? roof of service of ordinar* mail Service shall be proved b* affidavit of the mailer showing compliance with Sec. :, *u e 13 AMENDMENT ;R(LE 10= AMENDMENT AS A MATTER O) RI+>T A plaintiff has the right to amend his complaint onc at an* time 9 :or a r s-onsi0 -$ a#ing is s r0 # b* the other part* or in case of a repl* to which there is no responsive pleading7 at an* time within ten >!D? da*s after it is served (Sec. 2, *u e 1.). 4hus7 before an answer is served on the plaintiff7 the latter ma* amend his complaint as a matt r o: rig!t :or "!at 0 r r asons as it may 9 ? 0 n to corr ct t! rror o: @%#gm nt. 4he defendant ma* also amend his answer7 also as a matter of right7 before a repl* is served upon him. >Sec. 2 refers to "n "$en'$ent $"'e %efore the tri" court, not to "$en'$ents %efore the CA). 4he CA is vested with %urisdiction to admit or den* amended petitions filed before it. 0ence7

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upon motion of an* part* at an* time7 even after %udgment9 but failure to amend does not affect the result of the trial of these issues. :f evidence is ob%ected to at the trial on the ground that it is not within the issues made b* the pleadings7 the court ma* allow the pleadings to be amended and shall do so with liberalit* if the presentation of the merits of the action and the ends of substantial %ustice will be subserved thereb*. 4he court ma* grant a continuance to enable the amendment to be made (Sec. 5, *u e 1.). DI))ERENT )ROM S(,,LEMENTAL ,LEADIN+S A supplemental pleading is one which sets forth transactions7 occurrences7 or events which have happened since the date of the pleading sought to be supplemented. 4he filing of supplemental pleadings re,uires leave of court. 4he court ma* allow the pleading onl* upon such terms as are %ust. 4his leave is sought b* the filing of a motion with notice to all parties (Sec. ;, *u e 1.). A supplemental pleading does not e1tinguish the e1istence of the original pleading7 while an amended pleading takes the place of the original pleading. A supplemental pleading e1ists side with the original9 it does not replace that which it supplements it does not supersede the original but assumes that the original pleading remain as the issues to be tried in the action. A supplemental pleading supplies the deficiencies in aid of an original pleading7 not to entirel* substitute the latter. E))E/T O) AMENDED ,LEADIN+

S(MMONS ;R%$ 12= Summons is a writ or process issued and served upon the defendant in a civil action for the purpose of securing his appearance therein. 4he purpose of summons is to compl* with the constitutional rights on due process 4he service of summons enables the court to ac,uire %urisdiction over the person of the defendant. :f there is no service of summons7 an* %udgment rendered or proceedings had in a case are null and void7 e1cept in case of voluntar* appearance. 4he law re,uiring the manner of service of summons is %urisdictional. <hen the defendant is a corporation7 partnership or association organi@ed under the laws of the hilippines with a %uridical personalit*7 service ma* be made on the president7 managing partner7 general manager7 corporate secretar*7 treasurer7 or in-house counsel (Sec 11). :f a part* dies and there is substitute7 there is no need for summons but onl* an order for him tom appear. NAT(RE AND ,(R,OSE O) S(MMONS IN RELATION TO A/TIONS IN ,ERSONAM? IN REM AND A(ASI IN REM :n an action in - rsonam7 the purpose of summons is not onl* to notif* the defendant of the action against him but also to ac,uire %urisdiction over his person. 4he filing of the complaint does not enable the courts to ac,uire %urisdiction over the person of the defendant. B* the filing of the complaint and the pa*ment of the re,uired filing and docket fees7 the court ac,uires %urisdiction onl* over the person of the plaintiff7 not over the person of the defendant. Ac,uisition of %urisdiction over the latter is accomplished b* a valid service of summons upon him. Service of summons logicall* follows the filing of the complaint. #ote further that the filing of the complaint tolls the running of the prescriptive period of the cause of action in accordance with Article !!(( of the Civil Code. :n an action in r m or E%asi in r m7 %urisdiction over the defendant is not re,uired and the court ac,uires %urisdiction over an action as long as it ac,uires %urisdiction over the res. 4he purpose of summons in these actions is not the ac,uisition of %urisdiction over the defendant

An amended pleading supersedes the original

one which it amends (Sec. <, *u e 1.). 4he original pleading loses its status as a pleading7 is deemed withdrawn and disappears from the record. :t has been held that the original complaint is deemed superseded and abandoned b* the amendator* complaint onl* if the latter introduces a new or different cause of action. 4he defenses in the original pleadings not reproduced in the amended pleadings are waived. Admissions in the superseded pleading can still be received in evidence against the pleader.

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but mainl* to satisf* the re,uirement of due process.

constitutional

'? 4here should be at least & attempts in " da*s. :t ma* be resorted to if there are %ustifiable causes7 where the defendant cannot be served within a R2AS3#ABL2 4:$2 (for ! "intiff @ : '"+s; sheriff @ 15 A 3. '"+s). An e1ample is when the defendant is in hiding and resorted to it intentionall* to avoid service of summons7 or when the defendant refuses without %ustifiable reason to receive the summons. :n substituted service of summons7 actual receipt of the summons b* the defendant through the person served must be shown. :t further re,uires that where there is substituted service7 there should be a report indicating that the person who received the summons in defendantCs behalf was one with whom petitioner had a relation of confidence ensuring that the latter would receive or would be notified of the summons issued in his name. Substituted service is not allowed in service of summons on domestic corporations. /ONSTR(/TIVE SERVI/E ;B' ,(BLI/ATION= As a rule7 summons b* publication is available onl* in actions in rem or ,uasi in rem. :t is not available as a means of ac,uiring %urisdiction over the person of the defendant in an action in personam. Against a resident7 the recogni@ed mode of service is service in person on the defendant under Sec. ; *u e 18. :n a case where the defendant cannot be served within a reasonable time7 substituted service will "!! + (Sec. :, *u e 18)7 but no summons b* publication which is permissible however7 under the conditions set forth in Sec. 18, *u e 18. Against a non-resident7 %urisdiction is ac,uired over the defendant b* service upon his person while said defendant is within the hilippines. As once held7 when the defendant is a nonresident7 personal service of summons in the state is essential to the ac,uisition of %urisdiction over him. 4his is in fact the onl* wa* of ac,uiring %urisdiction over his person if he does not voluntaril* appear in the action. Summons b* publication against a nonresident in an action in personam is not a proper mode of service. ublication is notice to the whole world that the proceeding has for its ob%ect to bar indefinitel* all who might be minded to make an ob%ection of an* sort against the right sought to be

VOL(NTAR' A,,EARAN/E 4he defendantTs voluntar* appearance in the action shall be e,uivalent to service of summons. 4he inclusion in a motion to dismiss of other grounds aside from lack of %urisdiction over the person of the defendant shall not be deemed a voluntar* appearance (Sec. 2., *u e 18). /urisdiction over the defendant is ac,uired b*E a? ;alid service of summons9 or b? B* his voluntar* appearance or submission to the %urisdiction of the court. 4he defendantCs voluntar* appearance in the action shall be e,uivalent to service of summons. Lack of %urisdiction over oneCs person ma*be invoked in a motion to dismiss alleging such ground. :f no motion to dismiss is filed7 it ma* be raised as an affirmative defense in the answer. 4he inclusion in a motion to dismiss of other grounds aside from lack of %urisdiction over the person of the defendant shall not be deemed a voluntar* appearance. ,ERSONAL SERVI/E :t shall be served b* 0A#DL:#8 a cop* to the defendant in person7 or if he refuses it7 b* 42#D2R:#8 it to him >Sec. )7 Rule !'?. S(BSTIT(TED SERVI/E ;S(MMONS= :f the defendant cannot be served within a reasonable time7 service ma* be effectedE !? B* leaving copies of the summons at the defendantCs dwelling house or residence with some person of suitable age and discretion then residing therein9 or "? B* leaving copies at defendantCs office or regular place of business with some competent person in charge thereof (Sec. :). 4he following facts must first be shown for the service to be validE !? 4he impossibilit* of the personal service within a reasonable time "? 4he effort e1erted to locate the person to be served &? Service upon a person of sufficient age and discretion residing in the same place or some competent person in charge of his office or regular place of business

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established. :t is the publication of such notice that brings the whole world as a part* in the case and vests the court with %urisdiction to hear and decide it. SERVI/E (,ON A DE)ENDANT W>ERE >IS IDENTIT' IS (N8NOWN OR W>ERE >IS W>EREABO(TS ARE (N8NOWN <here the defendant is designated as unknown7 or whenever his whereabouts are unknown and cannot be ascertained despite a diligent in,uir*7 service ma*7 with prior leave of court7 be effected upon the defendant7 b* publication in a newspaper of general circulation. 4he place and the fre,uenc* of the publication is a matter for the court to determine (Sec. 18, *u e 18). 4he rule does not distinguish whether the action is in personam7 in rem or ,uasi in rem. 4he tenor of the rule authori@es summons b* publication whatever the action ma* be as long as the identit* of the defendant is unknown or his whereabouts are unknown. R(LES ON S(MMONS ON DE)ENDANT ;1= R si# nt >a? ,r s nt in the hilippines !? ersonal service >Rule !'7 Sec. )? "? Substituted service >Rule !'7 Sec. +? &? ublication7 but onl* if a? his identit* or whereabouts is unknown >Rule !'7 Sec. !'?9 and b? the action is in rem or ,uasi in rem >b? A9s nt from the hilippines !? Substituted service >Rule !'7 Sec. +? "? 21traterritorial service >Rule !'7 Sec. !) and !(?9 action need not be in rem or ,uasi in rem ;2= Non<r si# nt !. resent in the hilippines a? ersonal service >Sec. )7 Rule !'? b? Substituted service >Sec. +7 Rule !'? ". Absent from the hilippines a? Action in rem or ,uasi in rem J onl* 21traterritorial service >Rule !'7 Sec. !(? b? Action in personam7 and %udgment cannot be secured b* attachment >e.g. action for in%unction?

!? <ait for the defendant to come to the hilippines and to serve summons then "? <ait the defendant to voluntaril* appear in court >Rule !'7 Sec. "D? &? laintiff cannot resort to e1traterritorial service of summons SERVI/E (,ON RESIDENTS TEM,ORARIL' O(TSIDE T>E ,>ILI,,INES Service of summons upon a resident of the hilippines who is temporaril* out of the countr*7 ma*7 b* leave of court be effected out of the hilippines as under the rules on e1traterritorial service in Sec. 15, *u e 18 b* an* of the following modesE !? b* personal service as in Sec. ;7 "? b* publication in a news paper of general circulation together with a registered mailing of a cop* of the summons and the order of the court to the last known address of the defendant7 or &? b* an* manner the court ma* deem sufficient under Sec. 1;. Like in the case of an unknown defendant or one whose whereabouts are unknown7 the rule affecting residents who are temporaril* out of the hilippines applies in an* action. #ote also7 that summons b* publication ma* be effected against the defendant. 4he defendant ma* however7 also be served b* substituted service. 4his is because even if he is abroad7 he has a residence in the hilippines or a place of business and surel*7 because of his absence7 he cannot be served in person within a reasonable time. E*TRA<TERRITORIAL SERVI/E? W>EN ALLOWED Bnder Sec. 15, *u e 187 e1traterritorial service of summons is proper onl* in four >'? instances namel*E !? <hen the action affects the personal status of the plaintiffs9 "? <hen the action relates to7 or the sub%ect of which is7 propert* within the hilippines7 in which the defendant has or claims a lien or interest7 actual or contingent9 &? <hen the relief demanded in such action consists7 wholl* or in part7 in e1cluding

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the defendant from an* interest in propert* located in the hilippines9 and '? <hen the defendant non-residentCs propert* has been attached within the hilippines. 21traterritorial service of summons applies when the following re,uisites concurE !? 4he defendant is nonresident9 "? 0e is not found in the hilippines9 and &? 4he action against him is either in rem or ,uasi in rem. :f the action is in personam7 this mode of service will not be available. 4here is no e1traterritorial service of summons in an action in personam. 0ence7 e1traterritorial service upon a nonresident in an action for in%unction which is in personam is not proper (B"nco 4o Br"si 6s. CA, 333 SC*A 585). <hen the action is in personam7 %urisdiction over the person of the defendant is necessar* for the court to validl* tr* and decide the case. 0owever7 when the defendant is a nonresident7 personal service of summons in the state is essential to the ac,uisition of %urisdiction over him. SERVI/E (,ON ,RISONERS AND MINORS On a minor. Service shall be made on him personall* and on his legal guardian if he has one7 or if none7 upon his guardian "' ite$ whose appointment shall be applied for b* the plaintiff7 or upon a person e1ercising parental authorit* over him7 but the court ma* order that service made on a minor of !( or more *ears of age shall be sufficient (Sec. 1.); On -rison rs& :t shall be made upon him >!risoner? b* serving on the officer >%eco$es the 'e!ut+ sheriff? having the management of the %ail or institution who is deemed deputi@ed as a special sheriff for said purpose (Sec. 9). :f served b* the sheriff7 his deput*7 or other proper court officer7 there is no need to be sworn but this is needed if served b* other persons. ,ROO) O) SERVI/E <hen the service has been completed7 the server shall7 within five >(? da*s therefrom7 serve a cop* of the return7 personall* or b* registered mail7 to the plaintiffLs counsel7 and shall return the summons to the clerk who issued it7

accompanied b* proof of service (Sec. 8, *u e 18). 4he proof of service of summons shall be made in writing b* the server and shall set forth the manner7 place and date of service9 shall specif* an* papers which have been served with the process and the name of the person who received the same9 and shall be sworn to when made b* a person other than a sheriff or his deput* (Sec. 1<). :f the service has been made b* publication7 service ma* be proved b* the affidavit of the printer7 his foreman or principal clerk7 or of the editor7 business or advertising manager7 to which affidavit a cop* of the publication shall be attached and b* an affidavit showing the deposit of a cop* of the summons and order for publication in the post office7 postage prepaid7 directed to the defendant b* registered mail to his last known address (Sec. 19). MOTIONS ;R%$ 13= MOTIONS IN +ENERAL? DE)INITION O) MOTION A motion is an application for relief other than b* a pleading (Sec. 1, *u e 15). MOTIONS VERS(S ,LEADIN+S A pleading is a written statement of the respective claims and defenses of the parties submitted to the court for appropriate %udgment (Sec. 1, *u e ;). :t ma* be in the form of a complaint7 counterclaim7 cross-claim7 third-part* complaint7 or complaint-in-intervention7 answer or repl* (Sec. 2, *u e ;). A motion on the other hand is an application for relief other than a pleading (Sec. 1, *u e 15). A motion is not a pleading7 even when reduced to writing9 it relates generall* to procedural matters7 unlike pleadings which generall* states substantial ,uestions. $oreover7 a motion is not an independent remed*7 and thus cannot replace an action to enforce a legal right. /ONTENTS AND )ORM O) MOTIONS A motion shall state the order sought to be obtained7 and the grounds which it is based7 and if necessar* shall be accompanied b* supporting affidavits and other papers (Sec. 3).

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All motions must be in writing e1cept those made in open court or in the course of a hearing or trial (Sec. 2). NOTI/E O) >EARIN+ AND >EARIN+ O) MOTIONS 21cept for motions which the court ma* act upon without pre%udicing the rights of the adverse part*7 ever* written motion shall be set for hearing b* the applicant. 4he motion which contains the notice of hearing shall be served as to ensure its receipt b* the other part* at least three >&? da*s before the date of hearing7 unless the court for good cause sets the hearing on shorter notice. :t shall be addressed to all parties concerned7 and shall specif* the time and date of the hearing which must not be later than ten >!D? da*s after the filing of the motion (Sec. 8, *u e 15). OMNIB(S MOTION R(LE 4he rule is a procedural principle which re,uires that ever* motion that attacks a pleading7 %udgment7 order or proceeding shall include all grounds then available7 and all ob%ections not so included shall be deemed waived (Sec. <). Since the rule is sub%ect to the provisions of Sec. 1, *u e 9, the ob%ections mentioned therein are not deemed waived even if not included in the motion. 4hese ob%ections areE a? that the court has no %urisdiction over the sub%ect matter7 b? that there is another action pending between the same parties for the same cause >litis pendencia?7 c? that the action is barred b* a prior %udgment >res %udicata?7 and d? that the action is barred b* the statute of limitations >prescription? (Sec. 1, !"r. 2, *u e 9). 2ven if a motion to dismiss was filed and the issue of %urisdiction was not raised therein7 a part* ma*7 when he files an answer7 raise the lack of %urisdiction as an affirmative defense because this defense is not barred under the omnibus motion rule. A motion to dismiss is a t*pical e1ample of a motion sub%ect to omnibus motion rule7 since a motion to dismiss attacks a complaint which is a pleading.

Bnder the o$ni%us $otion ru e7 a motion attacking a pleading like a motion to dismiss shall include all grounds then available and all ob%ections not so included shall be deemed waived. :t can no longer be invoked as affirmative defense in the answer which the movant ma* file following the denial of his motion to dismiss. 4he defense of lack of %urisdiction over the sub%ect matter is however7 a defense not barred b* the failure to invoke the same in a motion to dismiss alread* filed. LITI+ATED AND E* ,ARTE MOTIONS A $itigat # motion is one which re,uires the parties to be heard before a ruling on the motion is made b* the court. Sec. 8 establishes the general rule that ever* written motion is deemed a litigated motion. A motion to dismiss (*u e 1;), a motion for %udgment for the pleadings (*u e 38)7 and a summar* %udgment (*u e 35), are litigated motions. An x -art motion is one which does not re,uire that the parties be heard7 and which the court ma* act upon without pre%udicing the rights of the other part*. 4his kind of motion is not covered b* the hearing re,uirement of the Rules (Sec. 2). An e1ample of an e1 parte motion is that one filed b* the plaintiff pursuant to Sec. 1, *u e 1<7 in which he moves promptl* that the case be set for !re/tri" . A $otion for e#tension of time is an e1 parte motion made to the court in behalf of one or the other of the parties to the action7 in the absence and usuall* without the knowledge of the other part* or parties. 21 parte motions are fre,uentl* permissible in procedural matters7 and also in situations and under circumstances of emergenc*9 and an e1ception to the rule re,uiring notice is sometimes made where notice or the resulting dela* might tend to defeat the ob%ective of the motion. Motion o: co%rs J a motion for a certain kind of relief or remed* to which the movant is entitled as a matter of right7 and not as a matter of discretion on the part of the court. $oreover7 the allegations contained in such a motion do not have to be investigated or verified. An e1ample would be a $otion fi e' out of ti$e7 because this motion ma* be disposed of the court on its own initiative. Another e1ample would be a $otion to se cert"in !ro!ert+ "fter the !erio' 3i6en %+ the court to the 'e%tor to !"+ h"s e "!se'7 and such previous order had specified that the propert* be sold in case of default. S- cia$ motion J the opposite of a motion of course7 here the discretion of the court is

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involved9 usuall* an investigation of the facts alleged is re,uired. ,RO<)ORMA MOTIONS 4he Court has consistentl* held that a motion which does not meet the re,uirements of Sections 8 "n' 5 of *u e 15 on hearing and notice of the hearing is a mere scrap of paper7 which the clerk of court has no right to receive and the trial court has no authorit* to act upon and one which will be treated as a motion intended to dela* the proceedings. Service of a cop* of a motion containing a notice of the time and the place of hearing of that motion is a mandator* re,uirement7 and the failure of movants to compl* with these re,uirements renders their motions fatall* defective. MOTIONS )OR BILL O) ,ARTI/(LARS ;R(LE 12= ,(R,OSE AND W>EN A,,LIED )OR 4he purpose of the motion is to seek an order from the court directing the pleader to submit a bill of particulars which avers matters with sufficient definitiveness or particularit* to enable the movant to prepare his responsive pleading (Sec. 1, *u e 12), not to enable the movant to prepare for trial. 4he latter purpose is the ultimate ob%ective of the discover* procedures from *u es 23 to 29 and ever of a pre-trial under *u e 1<. :n other words7 the function of a bill of particulars is to clarif* the allegations in the pleading so an adverse part* ma* be informed with certaint* of the e1act character of a cause of action or a defense. <ithout the clarifications sought b* the motion7 the movant ma* be deprived of the opportunit* to submit an intelligent responsive pleading. 4his is to avert the danger where the opposing part* will find difficult* in s,uarel* meeting the issues raised against him and plead the corresponding defenses which if not timel* raised in the answer will be deemed waived. A motion for a bill of particulars is to be filed before7 not after responding to a pleading (Sec. 1, *u e 12). 4hus7 where the motion for bill of particulars is directed to a complaint7 the motion should be filed within fifteen >!(? da*s after service of summons. :f the motion is directed to a counterclaim7 then the same must be filed within

ten >!D? da*s from service of the counterclaim which is the period provided for b* Sec. 8, *u e 11 to answer a counterclaim. :n case of a repl* to which no responsive pleading is provided for b* the Rules7 the motion for bill of particulars must be filed within ten >!D? da*s of the service of said repl* (Sec. 1, *u e 12). A/TIONS O) T>E /O(RT Bpon receipt of the motion which the clerk of court must immediatel* bring to the attention of the court7 the latter has three possible options7 namel*E !? to den* the motion outright7 "? to grant the motion outright or &? to hold a hearing on the motion. /OM,LIAN/E WIT> T>E ORDER AND E))E/T O) NON</OM,LIAN/E :f a motion for bill of particulars is granted7 the court shall order the pleader to submit a bill of particulars to the pleading to which the motion is directed. 4he compliance shall be effected within ten >!D? da*s from notice of the order7 or within the period fi1ed b* the court (Sec. 3, *u e 12). :n compl*ing with the order7 the pleader ma* file the bill of particulars either in a separate pleading or in the form or an amended pleading (Sec. 3, *u e 12). 4he bill of particulars submitted becomes part of the pleading for which it is intended (Sec. ;, *u e 12). I: t! or# r to :i$ a 9i$$ o: -artic%$ars is not o9 y #7 or in case of insufficient compliance therewith7 the court ma*E a? order the striking out of the pleading9 or b? the portions thereof to which the order was directed9 or c? make such other order as it deems %ust (Sec. 8). E))E/T ON T>E ,ERIOD TO )ILE A RES,ONSIVE ,LEADIN+ A motion for bill of particulars is not a pleading hence7 not a responsive pleading. <hether or not his motion is granted7 the movant ma* file his responsive pleading. <hen he files a motion for B3 7 the period to file the responsive pleading is sta*ed or interrupted. After service of the bill of particulars upon him or after notice of the denial of his motion7 he ma*

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file his responsive pleading within the period to which he is entitled to at the time the motion for bill of particulars is filed. :f he has still eleven >!!? da*s to file his pleading at the time the motion for B3 is filed7 then he has the same number of da*s to file his responsive pleading from the service upon him of the B3 . :f the motion is denied7 then he has the same number of da*s within which to file his pleading counted from his receipt of the notice of the order den*ing his motion. :f the movant has less than five >(? da*s to file his responsive pleading after service of the bill of particulars or after notice of the denial of his motion7 he nevertheless has five >(? da*s within which to file his responsive pleading. (Sec.5, *u e 12). A seasonable motion for a bill of particulars interrupts the period within which to answer. After service of the bill of particulars or of a more definite pleading7 or after notice of denial of his motion7 the moving part* shall have the same time to serve his responsive pleading7 if an* is permitted b* the rules7 as that to which he was entitled at the time of serving his motion7 but no less than five >(? da*s in an* event. MOTION TO DISMISS ;R(LE 14=

e? 4here is another action pending between


the same parties and for the same cause ( is !en'ens); f? 4he cause of action is barred b* a prior %udgment (res &u'ic"t") or b* the statute of limitations >prescription?9 g? 4he -$ a#ing ass rting t! c$aim stat s no ca%s o: action9 h? 4he claim or demand has been paid7 waived7 abandoned7 or otherwise e1tinguished9 i? 4he claim on which the action is founded is unenforceable under the provisions of the statute of frauds9 and %? A condition precedent for filing the action has not been complied with. 4he language of the rule7 particularl* on the relation of the words MabandonedN and Motherwise e1tinguishedN to the phrase Mclaim or demand deemed set forth in the plaintiffCs pleadingN is broad enough to include within its ambit the defense of bar b* laches. 0owever7 when a part* moves for the dismissal of the complaint based on laches7 the trial court must set a hearing on the motion where the parties shall submit not onl* their arguments on the ,uestions of law but also their evidence on the ,uestions of fact involved. 4hus7 being factual in nature7 the elements of laches must be proved or disproved through the presentation of evidence b* the parties. RESOL(TION O) MOTION After the hearing7 the court ma* dismiss the action or claim7 den* the motion7 or order the amendment of the pleading. 4he court shall not defer the resolution of the motion for the reason that the ground relied upon is not indubitable. :n ever* case7 the resolution shall state clearl* and distinctl* the reasons therefor (Sec. 3). REMEDIES O) ,LAINTI)) W>EN T>E /OM,LAINT IS DISMISSED <here the dismissal is final but is without pre%udice >interlocutor*?7 the plaintiff ma* simpl* r <:i$ the action depending upon the ground for the dismissal of the action. 5or instance7 if the ground for dismissal was anchored on improper venue7 the plaintiff ma* file the action in the proper venue. <here the dismissal is final and it bars the refiling of the case7 he ma* a-- a$ from the order of dismissal where the ground relied upon is one

A motion to dismiss is not a pleading. :t is

merel* a motion. :t is an application for relief other than b* a pleading (Sec. 1, *u e 15). 4he pleadings allowed under the Rules areE a? complaint7 >b? answer7 >c? counterclaim7 >d? cross-claim7 >e? third >fourth7 etc.? Jpart* complaint7 >f? complaint in intervention (Sec. 2, *u e ;), and repl* (Sec. 1., *u e ;). A motion is not one of those specificall* designated as a pleading. 5ailure to state a cause of action +RO(NDS Bnder Sec. 1, *u e 1;, a motion to dismiss ma* be filed on an* of the following groundsE a? Lack of %urisdiction over the person of the defending part*9 b? Lack of %urisdiction over the sub%ect matter of the claim9 c? 4he venue is improperl* laid9 d? 4he plaintiff has no legal capacit* to sue9

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which bars the refiling of the complaint like res &u'ic"t"7 prescription7 e1tinguishment of the obligation or violation of the statute of frauds (Sec. 5, *u e 1;). Since the complaint cannot be refiled7 the dismissal is with pre%udice. Bn'er Sec. 1[h], *u e 817 it is an order dismissing an action without pre%udice which cannot be appealed from. Conversel*7 where the dismissal is with pre%udice7 an appeal from the order of dismissal is not precluded. <here the dismissal is without pre%udice and the court gravel* abused its discretion in doing so7 the plaintiff ma* resort to certiorari (Sec. 1, *u e 81). REMEDIES O) T>E DE)ENDANT W>EN T>E MOTION IS DENIED

A writ of certiorari is not intended to correct ever* controversial interlocutor* ruling. :t is resorted to onl* to correct a grave abuse of discretion or a whimsical e1ercise of %udgment e,uivalent to lack of %urisdiction. :ts function is limited to keeping an inferior court within its %urisdiction and to relieve persons from arbitrar* acts7 acts which courts or %udges have no power or authorit* in law to perform. :t is not designed to correct erroneous findings and conclusions made b* the courts. 1= )i$ an a-- a$ 4his remed* is appropriate in the instances where the defendant is barred from refiling the same action of claim if the dismissal is based on the following groundsE a? 4he cause of action is barred b* a prior %udgment b? 4he cause of action is barred b* the statute of limitations c? 4he claim or demand has been paid7 waived7 abandoned or otherwise e1tinguished d? 4he claim on which the action is founded is unenforceable under the provisions of the statute of frauds.

!? )i$ ans" r "it!in t! 9a$anc o: t!


- rio# prescribed b* *u e 11 to which he was entitled at the time of serving his motion7 but not less than five >(? da*s in an* event (Sec. 8, *u e 1;). As a rule7 the filing of an answer7 going through the usual trial process7 and the filing of a timel* appeal from an adverse %udgment are the proper remedies against a denial of a motion to dismiss. 4he filing of an appeal from an order den*ing a motion to dismiss is not the remed* prescribed b* e1isting rules. 4he order of denial7 being interlocutor* is not appealable (Sec 1[c], *u e 8).

'? 4he denial of a motion to dismiss is


interlocutor*7 hence7 the remed* is to file an answer7 proceed to trial7 and await %udgment before interposing an appeal. 4he denial should be raised as an error of the trial court on appeal. E))E/T O) DISMISSAL O) /OM,LAINT ON /ERTAIN +RO(NDS <hen the complaint is dismissed on the grounds ofE a? prior %udgment b? b* the statute of limitations c? pa*ment7 waiver7 abandonment or e1tinguishment of the claim d? unenforceabilit* of the cause of action under the statute of frauds the dismissal shall bar the refiling of the same action or claim7 but this is without pre%udice to the right of the other part* to appeal from the order of dismissal because such dismissal is a final order7 not merel* interlocutor* (Sec. 5).

"? /i0i$ action %n# r R%$ 43 ()ertiorari)


:n order to %ustif* the grant of the e1traordinar* remed* of certiorari7 the must be a showing that the denial of the motion was tainted with grave abuse of discretion amounting to lack of %urisdiction. <ithout such showing7 Rule )( cannot be availed of as a remed*. 4he general rule is that the denial of a motion to dismiss cannot be ,uestioned in a special civil action for certiorari which is a remed* designed to correct errors of %urisdiction and not errors of %udgment. #either can a denial of a motion to dismiss be the sub%ect of an appeal unless and until a final %udgment or order is rendered.

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W>EN +RO(NDS ,LEADED AS A))IRMATIVE DE)ENSES :f no motion to dismiss has been filed7 an* of the grounds provided for dismissal ma* be pleaded as an affirmative defense in the answer and7 in the discretion of the court7 a preliminar* hearing ma* be had thereon as if a motion to dismiss has been filed (Sec. ;, *u e 1;). :mplied under Sec. ;, *u e 1; is that the grounds for a motion to dismiss are not waived even if the defendant fails to file a motion to dismiss because he ma* still avail of the defenses under *u e 1; as affirmative defenses in his answer. As a rule7 a preliminar* hearing is not authori@ed when a motion to dismiss has been filed. An e1ception previousl* carved out as if the trial court had not categoricall* resolved the motion to dismiss. Another e1ception would be %ustified under the liberal construction rule as when it is evident that the action is barred b* res %udicata. A strict application of Sec. ; would accordingl* lead to absurdit* when an obviousl* barred complaint continues to be litigated. 4he denial of a motion to dismiss does not preclude an* future reliance on the grounds relied thereupon. BAR B' DISMISSAL Res %udicata as a ground for dismissal is based on two grounds7 namel*E !? public polic* and necessit*7 which makes it to the interest of the State that there should be an end to litigation >re!u% ic"e ut sit itiu$?9 and "? the hardship on the individual of being ve1ed twice for the same cause (ne$o 'e%et %is 6e#"ri et e"'e$ c"us"). Accordingl*7 courts will simpl* refuse to reopen what has been decided. 4he* will not allow the same parties or their privies to litigate anew a ,uestion once it has been considered and decided with finalit*. Litigations must end and terminate sometime and somewhere. 4he effective and efficient administration of %ustice re,uires that once a %udgment has become final7 the prevailing part* should not be deprived of the fruits of the verdict b* subse,uent suits on the same issues filed b* the same parties. R s @%#icata com-r ! n#s t"o #istinct conc -tsC a= 9ar 9y a :orm r @%#gm nt

bars the prosecution of a second

action upon the same claim7 demand or cause of action. 9= conc$%si0 n ss o: @%#gm nt a fact or ,uestion which was in issue in a former suit and was there %udiciall* passed upon and determined b* a court of competent %urisdiction7 is conclusivel* settled b* the %udgment therein as far as the parties to that action and persons in privit* with them are concerned and cannot be again litigated in an* future action between such parties or their privies7 in the same court or an* other court of concurrent %urisdiction on either the same or different cause of action7 while the %udgment remains unreversed b* proper authorit*. DISTIN+(IS>ED )ROM DEM(RRER TO EVIDEN/E ;R(LE 11= Demurrer to evidence is a motion to dismiss filed b* the defendant after the plaintiff had rested his case on the ground of insufficienc* of evidence. :t ma* be filed after the plaintiff has completed the presentation of his evidence. :t is an aid or instrument for the e1peditious termination of an action similar to a motion to dismiss7 which the court or tribunal ma* either grant or den*. DistinctionsC a? A motion to dismiss should be filed within the time for but prior to the filing of the answer of the defending part* to the pleading asserting the claim against him9 a demurrer to evidence ma* be filed onl* after the plaintiff has completed the presentation of his evidence. b? A motion to dismiss is anchored on preliminar* ob%ections9 a demurrer is anchored on one groundSinsufficienc* of evidence9 and c? :f a motion to dismiss is denied7 the defendant ma* file his responsive pleading >answer? or else he ma* declared in default and if granted7 plaintiff ma* appeal or if subse,uent case is not barred7 he ma* re-file the case. d? :n a demurrer7 if denied7 the defendant ma* present his evidence and if granted7 plaintiff appeals and the order of dismissal is reversed7 the defendant loses his right to present evidence. Rule !+ is based on allegations9 while Rule && is based on evidence

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DISMISSAL O) A/TIONS ;R%$ 15=

!? DISMISSAL (,ON NOTI/E B' ,LAINTI))


At an* time before the service of an answer or the service of a motion for summar* %udgment7 a complaint ma* be dismissed b* the plaintiff b* filing a notice of dismissal. Bpon the filing of the notice of dismissal7 the court shall issue an order confirming the dismissal (Sec. 1, *u e 1:). 4his dismissal shall be without pre%udice to the re-filing of the complaint7 e1cept whenE !? 4he notice of dismissal provides that the dismissal is with pre%udice9 or "? 4he plaintiff has previousl* dismissed the same case in a court of competent %urisdiction. :t is not the order confirming the dismissal which operates to dismiss the complaint. As the name of the order implies7 said order merel* confirms a dismissal alread* effected b* the filing of the notice of dismissal. 4he court does not have to approve the dismissal because it has no discretion on the matter. Before an answer or a motion for summar* %udgment has been served upon the plaintiff7 the dismissal b* the plaintiff b* the filing of the notice is a matter of right. 4he dismissal occurs as of the date of the notice is filed b* the plaintiff and not the date the court issues the order confirming the dismissal. 4he dismissal as a matter of right ceases when an answer or a motion for summar* %udgment is served on the plaintiff and not when the answer or the motion is filed with the court. 4hus7 if a notice of dismissal is filed b* the plaintiff even after an answer has been filed in court but before the responsive pleading has been served on the plaintiff7 the notice of dismissal is still a matter of right. TWO<DISMISSAL R(LE 4he two-dismissal rule applies when the plaintiff hasE a? twice dismissed actions9

b? based on or including the same claim9 and c? in a court of competent %urisdiction. 4he second notice of dismissal will bar the refiling of the action because it will operate as an ad%udication of the claim upon the merits. 2= DISMISSAL (,ON MOTION B' ,LAINTI))

3nce either an answer or motion for summar* %udgment has been served on the plaintiff7 the dismissal is no longer a matter of right and will re,uire the filing of a motion to dismiss7 not a mere notice of dismissal. 4he motion to dismiss will now be sub%ect to the approval of the court which will decide on the motion upon such terms and conditions as are %ust (Sec. 2, *u e 1:) unless otherwise specified in the order7 the dismissal shall be without pre%udice. . 4he dismissal under Sec. 2 is no longer a matter of right on the part of the plaintiff but a matter of discretion upon the court.

E))E/T O) DISMISSAL (,ON E*ISTIN+ /O(NTER/LAIM :f a counterclaim has alread* been pleaded b* the defendant prior to the service upon him of the plaintiffCs motion to dismiss7 and the court grants said motion to dismiss7 the dismissal Mshall be limited to the complaintN (Sec. 2, *u e 1:). 4he dismissal of the complaint does not carr* with it the dismissal of the counterclaim7 whether it is a compulsor* or a permissive counterclaim because the rule makes no distinction. 4he defendant7 if he so desires ma* prosecute his counterclaim either in a separate action or in the same action. Should he choose to have his counterclaim resolved in the same action7 he must notif* the court of his preference within fifteen >!(? da*s from the notice of the plaintiffLs motion to dismiss. Should he opt to prosecute his counterclaim in a separate action7 the court should render the corresponding order granting and reserving his right to prosecute his claim in a separate complaint. DISMISSAL D(E TO T>E )A(LT O) ,LAINTI))

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A complaint ma* be dismissed b* the court $otu !ro!rio or upon a motion filed b* the defendant. 4he dismissal is this case will be through reasons attributed to his fault. Sec. 2, *u e 1: provides the following grounds for dismissalE a? 5ailure of the plaintiff7 without %ustifiable reasons7 to appear on the date on the date of the presentation of his evidence in chief9 b? 5ailure of the plaintiff to prosecute his action for an unreasonable length of time9 c? 5ailure of the plaintiff to compl* with the Rules of Court9 d? 5ailure of the plaintiff to obe* an* order of the court9 e? 5ailure to appear at the trial9 or f? Lack of %urisdiction. 4he dismissal shall have the effect of an ad%udication upon the merits and is thus with pre%udice to the re-filing of the action7 unless the court declares otherwise. DISMISSAL O) /O(NTER/LAIM? /ROSS< /LAIM OR T>IRD<,ART' /OM,LAINT 4he rule on the dismissal of a complaint applies to the dismissal of an* counterclaim7 cross-claim7 or third-part* claim. A voluntar* dismissal b* the claimant alone b* notice pursuant to Sec. 1, *u e 1: shall be made before a responsive pleading or a motion for summar* %udgment is served or7 if there is none7 before the introduction of evidence at the trial or hearing (Sec. 8). ,RE<TRIAL ;R%$ 16= /ON/E,T O) ,RE<TRIAL re-trial is a mandator* conference and personal confrontation before the %udge between the parties and their respective counsel. :t is conducted after the last pleading has been served and filed7 it shall be the dut* of the plaintiff to promptl* move e1 parte that the case be set for pre-trial ()ithin 5 '"+s fro$ the "st ! e"'in3 h"s %een fi e'). NAT(RE AND ,(R,OSE 4he conduct of a pre-trial is mandator*. re-trial is a procedural device intended to clarif* and

limit the basic issues between the parties. :t thus paves the wa* for a less cluttered trial and resolution of the case. :ts main ob%ective is to simplif*7 abbreviate and e1pedite trial7 or totall* dispense with it. :t is a basic precept that the parties are bound to honor the stipulations made during the pre-trial. 4he court shall consider the following maters in the pre-trialE !? 4he possibilit* of an amicable settlement or a submission to alternative modes of dispute resolution9 "? Simplification of issues9 &? #ecessit* or desirabilit* of amendments to the pleadings9 '? ossibilit* of obtaining stipulations or admissions of facts and of documents to avoid unnecessar* proof9 (? Limitation of the number of witnesses9 )? Advisabilit* of a preliminar* reference of issues to a commissioner9 +? ropriet* of rendering %udgment on the pleadings7 or summar* %udgment7 or of dismissing the action should a valid ground therefor be found to e1ist9 -? Advisabilit* or necessit* of suspending the proceedings9 and .? 3ther matters as ma* aid in the prompt disposition of the action (Sec. 2, *u e 1<). NOTI/E O) ,RE<TRIAL 4he notice of pre-trial shall be served on the counsel of the part* if the latter is represented b* counsel. 3therwise7 the notice shall be served on the part* himself. 4he counsel is charged with the dut* of notif*ing his client of the date7 time and place of the pre-trial (Sec. 3, *u e 1<). #otice of pre-trial is so important that it would be grave abuse of discretion for the court for e1ample7 to allow the plaintiff to present his evidence e1 parte for failure of the defendant to appear before the pre-trial who did not receive through his counsel a notice of pre-trial. :n one case7 the SC said that there is no legal basis for a court to consider a part* notified of the pre-trial and to consider that there is no longer a need to send notice of pre-trial merel* because it was his counsel who suggested the date of pre-trial. :f the plaintiff failed to move for pre-trial7 the clerk of court shall do so.

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A,,EARAN/E O) ,ARTIESH E))E/T O) )AIL(RE TO A,,EAR :t shall be the dut* of both the parties and their counsels to appear at the pre-trial (Sec. 8, *u e 1<). T! :ai$%r o: t! -$ainti:: to a-- ar s!a$$ 9 ca%s :or t! #ismissa$ o: t! action. 4his dismissal shall be with pre%udice e1cept when the court orders otherwise (Sec. 5, *u e 1<). Since the dismissal of the action shall be with pre%udice7 unless otherwise provided7 the same shall have the effect of an ad%udication on the merits thus7 final. 4he remed* of the plaintiff is to appeal from the order of dismissal. An order dismissing an action with pre%udice is appealable. Bnder the Rules7 it is onl* when the order of dismissal is without pre%udice7 that appeal cannot be availed of (Sec. 1[h], *u e 81). Since appeal is available7 certiorari is not the remed* because the application of a petition for certiorari under *u e ;5 is conditioned upon the absence of appeal or an* plain7 speed* and ade,uate remed* (Sec. 1, *u e ;5). T! :ai$%r o: t! # : n#ant to a-- ar s!a$$ 9 ca%s to a$$o" t! -$ainti:: to -r s nt !is 0i# nc x -art an# :or t! co%rt to r n# r @%#gm nt on t! 9asis o: t! 0i# nc -r s nt # 9y t! -$ainti:: (Sec. 5, *u e 1<). 4he order of the court allowing the plaintiff to present his evidence e1 parte does not dispose of the case with finalit*. 4he order is therefore7 merel* interlocutor*9 hence7 not appealable. Bnder Sec. 1(c) of *u e 817 no appeal ma* be taken from an interlocutor* order. 4he defendant who feels aggrieved b* the order ma* move for the reconsideration of the order and if the denial is tainted with grave abuse of discretion7 he ma* file a petition for certiorari. ,RE<TRIAL BRIE)H E))E/T O) )AIL(RE TO )ILE 4he parties shall file with the court their respective pre-trial briefs which shall be received at least three >&? da*s before the date of the pretrial. 4his pre-trial brief shall be served on the adverse part* (Sec. ;, *u e 1<). 4he pre-trial brief shall contain the following mattersE !? A statement of their willingness to enter into an amicable settlement or alternative modes of dispute resolution7 indicating the desired terms thereof9

"? A summar* of admitted facts and proposed stipulation of facts9 &? 4he issues to be tried or resolved9 '? 4he documents or e1hibits to be presented7 stating the purposes thereof9 (? A manifestation of their having availed of or their intention to avail of discover* procedures or referral to commissioners9 and )? 4he number and names of the witnesses7 and the substance of their respective testimonies (Sec.;, *u e 1<). 5ailure to file the pre-trial brief shall have the same effect as failure to appear at the pretrial. a. :f it is the plaintiff who fails to file a pre-trial brief7 such failure shall be cause for dismissal of the action. b. :f it is the defendant who fails to do so7 such failure shall be cause to allow the plaintiff to present his evidence e1 parte. A pre-trial brief is not re,uired in a criminal case. DISTIN/TION BETWEEN ,RE<TRIAL IN /IVIL /ASE AND ,RE<TRIAL IN /RIMINAL /ASE 4he pre-trial in a civil case is set when the plaintiff moves e1 parte to set the case for pretrial (Sec.1, *u e 1<). 4he pre-trial in criminal case is ordered b* the court and no motion to set the case for pre-trial is re,uired from either the prosecution or the defense (Sec. 1, *u e 11<). 4he motion to set the case for pre-trial in a civil case is made after the last pleading has been served and. :n a criminal case7 the pre-trial is ordered b* the court after arraignment and within thirt* >&D? da*s from the date the court ac,uires %urisdiction over the person of the accused. 4he pre-trial in a civil case considers the possibilit* of an amicable settlement as an important ob%ective. 4he pre-trial in a criminal case does not include the considering of the possibilit* of amicable settlement of criminal liabilit* as one of its purposes. :n a civil case7 the agreements and admissions made in the pre-trial are not re,uired to be signed b* the parties and their counsels. 4he* are to be contained in the record of pre-trial and the pre-trial order (Sec. :, *u e 1<). :n a criminal case7 all agreements or admissions made or entered during the pre-trial conference shall be

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reduced in writing and signed b* the accused and counsel9 otherwise7 the* cannot be used against the accuse (Sec. 2, *u e 11<). 4he sanctions for non-appearance in a pre-trial are imposed upon the plaintiff or the defendant in a civil case. 4he sanctions in a criminal case are imposed upon the counsel for the accused or the prosecutor. /IVIL ,RE<TRIAL $andator* resence of defendant and counsel mandator* /RIMINAL ,RE<TRIAL $andator* Accused need not be present7 but his counsel must be

Amicable settlement is discussed

Agreement included in pre-trial order need not be in writing

present7 otherwise he ma* be sanctioned Amicable settlement is not discussed7 unless the criminal case is covered b* summar* procedure Agreements or admissions must be written and signed b* the accused and counsel to be admissible against him.

ALTERNATIVE DIS,(TE RESOL(TION ;ADR=

4his third person who intervenes is one who is not originall* impleaded in the action. :ntervention is merel* a collateral or accessor* or ancillar* to the principal action ad not an independent proceeding. <ith the final dismissal of the original action7 the complaint in intervention can no longer be acted upon. REA(ISITES )OR INTERVENTION !? 4here must be a motion for intervention filed before rendition of %udgment b* the trial court. A motion is necessar* because leave of court is re,uired before a person ma* be allowed to intervene. "? 4he movant must show in his motion that he hasE a? A legal interest in the matter in litigation7 the success of either of the parties in the action7 or against both parties9 b? 4hat the movant is so situated as to be adversel* affected b* a distribution or other disposition of propert* in the custod* of the court or of an officer thereof9 and c? 4hat the intervention must not onl* undul* dela* or pre%udice the ad%udication of the rights of the original parties and that the intervenorCs rights ma* not be full* protected in a separate proceeding. d? 4he intervenorCs rights ma* not be full* protected in a separate proceeding. TIME TO INTERVENE

!? :f the case has alread* filed a complaint


with the trial court without prior recourse to arbitration7 the proper procedure to enable an arbitration panel to resolve the parties dispute pursuant to the contract is for the trial court to sta* the proceedings. After the arbitration proceeding has alread* been pursued and completed7 then the trial court ma* confirm the award made b* the arbitration panel. A part* has several %udicial remedies available at its disposal after the Arbitration Committee denied its $otion for ReconsiderationE !? :t ma* petition the proper R4C to issue an order vacating the award on the grounds provided for under Sec. 28 of the Ar%itr"tion 5"); "? 5ile a petition for review under *u e 83 with the Court of Appeals on ,uestions of fact7 of law7 or mi1ed ,uestions of fact and law (Sec. 81, A4*); &? 5ile a petition for certiorari under *u e ;5 on the ground that the Arbitration Committee acted without or in e1cess of its %urisdiction or with grave abuse of discretion amounting to lack or e1cess of %urisdiction. INTERVENTION ;R%$ 17= :ntervention is a legal proceeding b* which a person who is not a part* to the action is permitted b* the court to become a part* b* intervening in a pending action after meeting the conditions and re,uirements set b* the Rules.

4he motion to intervene ma* be filed at an* time before the rendition of %udgment b* the trial court (Sec. 2, *u e 1<). :ntervention after trial and decision can no longer be permitted.

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REMED' )OR T>E DENIAL O) MOTION TO INTERVENTION !? 4he appellate court ma* e1ercise sound %udicial discretion "? An indispensable part* can intervene even after the rendition of %udgment &? 4he remed* of the aggrieved part* is appeal. $andamus will not lie e1cept in case of grave abuse of discretion and if there is no other plain7 speed* and ade,uate remed*. S(B,OENA ;R%$ 21= Court cannot issue subpoena absent an* action Subpoena is a process directed to a person re,uiring him to attend and to testif* at the hearing or the trial of an action7 or at an* investigation conducted under the laws of the hilippines7 or for taking of his deposition (Sec. 1, *u e 21). S(B,OENA D(/ES TE/(M - is a process directed to a person re,uiring him to bring with him at the hearing or trial of an action an* books7 documents7 or other things under his control. S(B,OENA AD TESTI)I/AND(M J is a process directed to a person re,uiring him to attend and testif* at the hearing or the trial of the action7 or at an* investigation conducted b* the competent authorit*7 or for the taking of his deposition. SERVI/E O) S(B,OENA :t shall be made in the same manner as personal or substituted service of summons. !? 4he original shall be e1hibited and a cop* thereof delivered to the person on whom it is served. "? 4endering to him the fees for one da*Ls attendance and the kilometrage allowed b* the Rules7 e1cept that when a subpoena is issued b* or on behalf of the Republic7 or an officer or agenc* thereof7 the tender need not be made. &? 4he service must be made so as to allow the witness a reasonable time for preparation and travel to the place of attendance. '? :f the subpoena is 'uces tecu$7 the reasonable cost of producing the books7

documents or things demanded shall also be tendered. Service of a subpoena shall be made b* the sheriff7 b* his deput*7 or b* an* other person speciall* authori@ed7 who is not a part* and is not less than eighteen >!-? *ears of age (Sec. ;, *u e 21). /OM,ELLIN+ ATTENDAN/E O) WITNESSESH /ONTEM,T :n case of failure of a witness to attend7 the court or %udge issuing the subpoena7 upon proof of the service thereof and of the failure of the witness7 ma* issue a warrant to the sheriff of the province7 or his deput*7 to arrest the witness and bring him before the court or officer where his attendance is re,uired7 and the cost of such warrant and sei@ure of such witness shall be paid b* the witness if the court issuing it shall determine that his failure to answer the subpoena was wilful and without %ust cause (Sec. <). 5ailure b* an* person without ade,uate cause to obe* a subpoena served upon him shall be deemed a contempt of the court from which the subpoena is issued. :f the subpoena was not issued b* a court7 the disobedience thereto shall be punished in accordance with the applicable law or Rule (Sec. 9). 21ceptionsE a? <here the witness resides more than one hundred >!DD? kilometers from his residence to the place where he is to testif* b* the ordinar* course of travel (Vi"tor+ *i3ht)7 or b? <here the permission of the court in which the detained prisonerCs case is pending was not obtained. A(AS>IN+ O) S(B,OENA 4he court ma* ,uash a subpoena duces tecum upon motion promptl* made and7 in an* event7 at or before the time specified thereinE a? if it is unreasonable and oppressive7 or b? the relevanc* of the books7 documents or things does not appear7 or c? if the person is whose behalf the subpoena is issued fails to advance the reasonable cost of the production thereof. &ubpoena ad testificandum ma* be ,uashed on the ground that the witness is #34 B3B#D 402R2BH. :n either case7 the subpoena ma* be

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,uashed on the ground that the witness fees and kilometrage ()ithin 1.. 9i o$etr"3e un ess the )itness $"+%e cite' in'irect conte$!t) allowed b* the Rules were not tendered when the subpoena was served. MODES O) DIS/OVER' ;R%$ s 21 <26= Hou can use this at an* stage of the proceeding9 applicable also in special proceedings <ritten interrogatories to parties is used onl* for the purpose of calling the defendant to the witness stand MODES O) DIS/OVER'

e? 4o determine the ph*sical or mental condition of a part* when such is in controvers*. DE,OSITIONS ,ENDIN+ A/TION ;R(LE 21=H DE,OSITIONS BE)ORE A/TION OR ,ENDIN+ A,,EAL MEANIN+ O) DE,OSITION A deposition is the taking of the testimon* of an* person7 whether he be a part* or not7 but at the instance of a part* to the action. 4his testimon* is taken out of court. :t ma* be either b* oral e1amination7 or b* a written interrogator* (Sec. 1, *u e 23). (SES O) DE,OSITIONS ,ENDIN+ A/TION At the trial or upon the hearing of a motion or an interlocutor* proceeding7 an* part or all of a deposition7 so far as admissible under the rules of evidence7 ma* be used against an* part* who was present or represented at the taking of the deposition or who had due notice thereof. A deposition ma* be sought for use in a future action (*u e 28), during a pending action (*u e 23), or for use in a pending appeal (*u e 28).

!? Depositions pending action (*u e 23); "? Depositions before action or pending &? '? (? )?
appeal (*u e 28); :nterrogatories to parties (*u e 25) Admission b* adverse part* (*u e 2;); roduction or inspection of documents and things (*u e 2:); and h*sical and mental e1amination of persons (*u e 2<).

4he importance of the rules of discover* is that the* shorten the period of litigation and speed up ad%udication. 4he evident purpose is to enable the parties7 consistent with recogni@ed principles7 to obtain the fullest possible knowledge of the facts and issues before civil trials and thus prevent said trials from being carried on in the dark. 4he rules of discover* serve as >a? devices7 along with the pre-trial hearing under Rule !-7 to narrow and clarif* the basis issues between the parties9 and >b? devices for ascertaining the facts relative to those issues. 4he basic purposes of the rules of discover* areE a? 4o enable a part* to obtain knowledge of material facts within the knowledge of the adverse part* or of third parties through depositions9 b? 4o obtain knowledge of material facts or admissions from the adverse part* through written interrogatories9 c? 4o obtain admissions from the adverse part* regarding the genuineness of relevant documents or relevant matters of fact through re,uests for admissions9 d? 4o inspect relevant documents or ob%ects7 and lands or other propert* in the possession and control of the adverse part*9 and

deposition benne esse J taken for use deposition


during a pending action (*u e 23). in perpetuam rei memoriam J taken to perpetuate a testimon* for use in future proceedings as when it is sought before the e1istence of an action7 or for cases on appeal.

An* or all of the deposition7 so far as admissible under the rules of evidence7 ma* be used >a? against an* part* who was present or represented at the taking of the deposition7 or >b? against one who had due notice of the deposition (Sec. 8, *u e 23). 4he deposition ma* be used for the following purposesE !? 5or contradicting or impeaching the testimon* of the deponent as a witness9 "? 4he deposition of a part* or of an* one who at the time of taking the deposition was an officer7 director7 or managing agent of a public or private corporation7 partnership7 or association

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which is a part* ma* be used b* an adverse part* for an* purpose9 &? 5or an* purpose b* an* part*7 where the deponent is a witness if the court finds thatE a? 4he witness is dead9 b? 4he witness resides more than !DD kilometers from the place of trial or hearing7 or is out of the hilippines7 unless it appears that his absence was procured b* the part* offering the deposition9 c? 4hat the witness is unable to attend or testif* because of age7 sickness7 infirmit*7 or imprisonment9 or d? 4hat the part* offering the deposition has been unable to procure the attendance of witnesses b* subpoena9 or e? <hen e1ceptional circumstances e1ist (Sec. 8, *u e 23). S/O,E O) E*AMINATION Bnless otherwise ordered b* the court as provided b* Sec. 1; or 1<7 the deponent ma* be e1amined regardingE a? an* matter not privileged b? which is relevant to the pending action7 whether relating to the claim or defense of an* other part*7 including the e1istence7 description7 nature7 custod*7 condition7 and location of an* books7 documents7 or other tangible things and the identit* and location of persons having knowledge of relevant facts c? #ot restricted b* a protective order. W>EN MA' OB.E/TIONS TO ADMISSIBILIT' BE MADE 3b%ection ma* be made at the trial or hearing to receiving in evidence an* deposition or part thereof for an* reason which would re,uire the e1clusion of the evidence if the witness were then present and testif*ing (Sec. ;). W>EN MA' TA8IN+ O) DE,OSITION BE TERMINATED OR ITS S/O,E LIMITED At an* time during the taking of the deposition7 an* part* or deponent ma* ask for the termination or limiting of the scope of the deposition upon showingE

!? that the e1amination is being conducted in bad faith9 or "? that it is conducted in such manner as reasonabl* to anno*7 embarrass7 or oppress the deponent or part*. WRITTEN INTERRO+ATORIES TO ADVERSE ,ARTIES /ONSEA(EN/ES O) RE)(SAL TO ANSWER 4he part* who fails to serve his answer to written interrogatories ma* be the sub%ect of a %udgment b* default E))E/T O) )AIL(RE TO SERVE WRITTEN INTERRO+ATORIES A part* not served with written interrogatories ma* not be compelled b* the adverse part* to give testimon* in open court7 or to give deposition pending appeal7 unless allowed b* the court or to prevent a failure of %ustice (Sec. ;, *u e 25). 4his provision encourages the use of written interrogatories although a part* is not compelled to use this discover* procedure7 the rule imposes sanctions for his failure to serve written interrogatories b* depriving him of the privilege to call the adverse part* as a witness or to give a deposition pending appeal. REA(EST )OR ADMISSION ;R(LE 24= A part*7 although not compelled b* the Rules7 is advised to file and serve a written re,uest for admission on the adverse part* of those material and relevant facts at issue and actionable document ("s " resu t, +ou nee' not "uthentic"te it) which are7 or ought to be7 within the personal knowledge of said adverse part*. 4he part* who fails to file and serve the re,uest shall not be permitted to present evidence on such facts (Sec. 5, *u e 2;). IM,LIED ADMISSION B' ADVERSE ,ART' 2ach of the matters of which an admission is re,uested shall be deemed admitted unless7 within a period designated in the re,uest7 which shall not be less than fifteen >!(? da*s after service thereof7 or within such further time as the court ma* allow on motion7 the part* to whom the re,uest is directed files and serves upon the part* re,uesting the admission a sworn statement either den*ing specificall* the matters of which an admission is re,uested or setting

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forth in detail the reasons wh* he cannot truthfull* either admit or den* those matters. 3b%ections to an* re,uest for admission shall be submitted to the court b* the part* re,uested within the period for and prior to the filing of his sworn statement as contemplated in the preceding paragraph and his compliance therewith shall be deferred until such ob%ections are resolved7 which resolution shall be made as earl* as practicable. /ONSEA(EN/ES O) )AIL(RE TO ANSWER REA(EST )OR ADMISSION 2ach of the matters of which an admission is re,uested >facts or documents? shall be deemed admitted unless within a period designated in the re,uest which shall not be less than !( da*s after service thereof7 or within such further time as the court ma* allow on motion7 the part* to whom the re,uest is directed files and serves upon the part* re,uesting the admission a sworn statement either den*ing specificall* the matter of which an admission is re,uested or setting forth in detail the reason wh* he cannot truthfull* either admit or den* those matters. E))E/T O) ADMISSION An* admission made b* a part* pursuant to such re,uest is for the purpose of the pending action onl* and shall not constitute an admission b* him for an* other purpose nor ma* the same be used against him in an* other proceeding (Sec. 3). E))E/T O) )AIL(RE TO )ILE AND SERVE REA(EST )OR ADMISSION A part* who fails to file and serve a re,uest for admission on the adverse part* of material and relevant facts at issue which are7 or ought to be7 within the personal knowledge of the latter7 shall not be permitted to present evidence on such facts (Sec. 5). ,ROD(/TION OR INS,E/TION O) DO/(MENTS OR T>IN+S ;R(LE 25=

4his is prelude to the presentation of secondar* evidence. 4his Rule applies onl* to a pending action and the documents or things sub%ect of the motion should not be privileged and must be those within the possession7 control or custod* of a part*. 4he petition must be sufficientl* described and identified as well as material to an* matter involved in the pending action. ,>'SI/AL AND MENTAL E*AMINATION O) ,ERSONS ;R(LE 26= 4his mode of discover* applies to an action in which the mental or ph*sical condition of a part* is in controvers*. Re,uisites to obtain 3rder for 21aminationE a? A $34:3# must be filed for the ph*sical and mental e1amination9 b? 4he motion showing 8ood Cause for the e1amination9 c? #34:C2 to the part* to be e1amined and to all the other parties d? 4he motion shall S 2C:5H the time7 place7 manner7 condition and scope of the e1amination and the person or persons b* whom it is made. +aiver of privilege. <here the person e1amined re,uests and obtains a report or the results of the e1amination7 the conse,uences areE !? 0e has to furnish the other part* a cop* of an* previous or subse,uent e1amination of the same ph*sical and mental condition9 and "? 0e waives an* privilege he ma* have in that action or an* other involving the same controvers* regarding the testimon* of an* other person who has so e1amined him or ma* thereafter e1amine him.

/ONSEA(EN/ES O) RE)(SAL TO /OM,L' WIT> MODES O) DIS/OVER' ;R(LE 27= RE)(SAL TO /OM,L' WIT> MODES O) DIS/OVER' /efusal to answer any 0uestion SAN/TIONS 4he court ma*7 upon application7 compel a refusing deponent an answer. :f granted and refusal to answer is without substantial %ustification7

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/efusal to be &worn

/efusal to answer designated 0uestions or refusal to produce documents or to submit to physical or mental e-amination

the court ma* re,uire the refusing part* to pa* the proponent the amount of the reasonable e1penses incurred in obtaining the order7 including attorne*Ts fees. :f denied and filed without substantial %ustification7 the court ma* re,uire the proponent to pa* to the refusing part* or deponent the amount of the reasonable e1penses incurred in opposing the application7 including attorne*Ts fees. A refusal to answer after being directed b* the court to do so ma* be considered a contempt of that court. Cite the disobedient deponent in Contempt of court 4he court ma* make the following ordersE !? An order that the matters regarding which the ,uestions were asked7 or the character or description of the thing or land7 or the contents of the paper7 or the ph*sical or mental condition of the part*7 or an* other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the part* obtaining the order9 "? An order refusing to allow the disobedient part* to support or oppose designated claims or defenses or prohibiting him from introducing in evidence designated documents or things or items of testimon*7 or from introducing evidence of ph*sical or mental condition9 &? An order striking out pleadings or parts thereof7 or sta*ing further proceedings until the order is obe*ed7 or dismissing the action or proceeding or an* part thereof7 or rendering a %udgment b* default against the disobedient part*9 and '? :n lieu of an* of the foregoing orders or in addition thereto7 an order directing the arrest of an* part* or agent of a part* for disobe*ing an* of such orders e1cept an order to submit to a ph*sical or mental e1amination (Sec. 3, *u e 29). 4he court ma*7 upon application7 issue an order to pa* the proponent the amount of the reasonable e1penses incurred in obtaining the order7 including attorne*Ts fees. 4he court7 on motion and notice7 ma*E !? ma* strike out all or an* part of an* pleading of that part*9 "? dismiss the action or proceeding or an* part thereof9 &? enter a %udgment b* default against disobedient part*9 '? order to pa* reasonable e1penses incurred b* the other7 including attorne*Ts fees.

/efusal to admit actionable document

'ailure of party to attend or serve answers

TRIAL ;R%$ 10= A trial is the %udicial process of investigating and determining the legal controversies7 starting with the production of evidence b* the plaintiff and ending with his closing arguments. AD.O(RNMENTS AND ,OST,ONEMENTS 4he general rule is that a court ma* ad%ourn a trial from da* to da*7 and to an* stated time7 as the e1peditious and convenient transaction of business ma* re,uire (Sec. 2).

0owever7 the court has no power to ad%ourn a trial for a period longer than one month from each ad%ournment7 nor more than three >&? months in all7 e1cept when authori@ed in writing b* the Court Administrator. A motion for postponement should not be filed on the last hour especiall* when there is no reason wh* it could not have been presented earlier. ostponement is not a matter of right. :t is addressed to the sound discretion of the court.

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REA(ISITES O) MOTION TO ,OST,ONE TRIAL )OR ABSEN/E O) EVIDEN/E !? A motion for postponement stating the ground relied upon must be filed9 "? 4he motion must be supported b* an affidavit or sworn certification showingE a. the materialit* or relevanc* of the evidence9 and b. that due diligence has been used to procure it (Sec. 3). &? :f the adverse part* admits the facts given in evidence7 the trial shall not be postponed even if he reserves the right to ob%ect to the admissibilit* of the evidence. REA(ISITES O) MOTION TO ,OST,ONE TRIAL )OR ILLNESS O) ,ART' OR /O(NSEL !? A motion for postponement stating the ground relied upon must be filed9 "? 4he motion must be supported b* an affidavit or sworn certification showingE a. that the presence of the part* or counsel at the trial is indispensable9 and b. that the character of his illness is such as to render his non-attendance e1cusable (Sec. 8). A+REED STATEMENTS O) )A/TS 4he parties to an* action ma* agree in writing upon the facts involved in litigation d submit the case for %udgment on the facts agreed upon7 without the introduction of evidence. #o trial shall thus be held. :f the parties agree to onl* some facts in issue7 trial shall be held as to the disputed facts in such order as the court shall prescribe. 4he agreed statement of facts is conclusive on the parties7 as well as on the court. #either of the parties ma* withdraw from the agreement7 nor ma* the court ignore the same. ORDER O) TRIAL Sub%ect to the provisions of Sec. 2, *u e 31 (Se!"r"te tri" s), and unless the court for special reasons otherwise directs7 the trial shall be limited to the issues stated in the pre-trial order and shall proceed as followsE !? 4he plaintiff shall adduce evidence in support of his complaint9 "? 4he defendant shall then adduce evidence in support of his defense7

&?

'? (?

)?

+?

counterclaim7 cross-claim and third part* complaint9 4he third part* defendant7 if an*7 shall adduce evidence of his defense7 counterclaim7 cross-claim and fourthpart* complaint9 4he fourth part*7 and so forth7 if an*7 shall adduce evidence of the material facts pleaded b* them9 4he parties against whom an* counterclaim or cross-claim has been pleaded7 shall adduce evidence in support of their defense7 in the order to be prescribed b* the court9 4he parties ma* then respectivel* adduce rebutting evidence onl*7 unless the court7 for good reasons and in the furtherance of %ustice7 permits them to adduce evidence upon their original case9 and Bpon admission of the evidence7 the case shall be deemed submitted for decision7 unless the court directs the parties to argue or to submit their respective memoranda or an* further pleadings.

:f several defendants or third part* defendants and so forth having separate defenses appear b* different counsel7 the court shall determine the relative order of presentation of their evidence (Sec. 5). REVERSAL O) ORDER <hen the accused admits the act or omission charged in the complaint or information but interposes a lawful defense7 the order of trial ma* be modified (Sec. 11, *u e 119). Since the defendant admits the plaintiffCs claim but seeks to avoid liabilit* based on his affirmative defense7 he shall proceed first to prove his e1emption. /ONSOLIDATION OR SEVERAN/E O) >EARIN+ OR TRIAL ;R(LE 11= /onso$i#ation <hen actions involving a common ,uestion of law 3R facts are pending before the court7 it ma* order a %oint hearing or trial of an* or all the matters in issue in the actions9 it ma* order all the actions consolidated9 and it ma* make such orders concerning proceedings therein as ma* tend to avoid unnecessar* costs or dela* (Sec. 1). $odes of consolidating casesE

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a? B+ rec"stin3 the c"ses " re"'+ institute'


A reshaping of the case b* amending the pleading and dismissing some cases and retaining onl* one case. 4here must be %oinder of causes of action and of parties9 b? B+ conso i'"tion !ro!er or %+ conso i'"tin3 the e#istin3 c"ses A it is a %oint trial with a %oint decision7 the cases retaining their original docket numbers9 and c? B+ test/c"se $etho' A b* hearing onl* the principal case and suspending the hearing on the other cases until %udgement has been rendered in the principal case. 4he cases retain their original docket numbers. S 0 ranc ;S -arat = Tria$s& 4he court7 in furtherance of convenience or to avoid pre%udice7 ma* order a separate trial of an* claim7 crossclaim7 counterclaim7 or third part* complaint7 or of an* separate issue or of an* number of claims7 cross-claims7 counterclaim7 third part* complaints or issue (Sec. 2). #oteE Consolidation is not a remed* in case of forum shoppingQ DELE+ATION O) RE/E,TION O) EVIDEN/E As a general rule7 the %udge shall personall* receive the evidence to be adduced b* the parties. 0owever7 the reception of evidence ma* be delegated under the following conditionsE !? 4he delegation ma* be made onl* in 'ef"u t or e# !"rte he"rin3s7 and in an* case where the parties agree in writing9 "? 4he delegation ma* be made onl* b* the clerk of court who is a member of the bar9 &? Said clerk of court shall have no power to rule on of evidence ob%ections to an* ,uestion or to the admission of e1hibits9 and '? 0e shall submit his report and the transcripts of the proceedings7 together with the ob%ections to be resolved b* the court7 within ten >!D? da*s from termination of the hearing. TRIAL B' /OMMISSIONERS ;R(LE 12= Commissioner includes a referee7 an auditor and an e1aminer (Sec. 1) RE)EREN/E B' /ONSENT

B* written consent of both parties7 the court ma* order an* or all of the issues in a case to be referred to a commissioner to be agreed upon b* the parties or to be appointed b* the court. RE)EREN/E ORDERED ON MOTION <hen the parties do not consent7 the court ma*7 upon the application of either or on its own motion7 direct a reference to a commissioner in the following casesE !? <hen the trial of an issue of fact re,uires the e1amination of a L3#8 ACC3B#4 on either side7 in which case the commissioner ma* be directed to hear and report upon the whole issue or an* specific ,uestion involved therein9 "? <hen the taking of an account is necessar* for the information of the court before %udgment7 or for carr*ing a %udgment or order into effect9 &? <hen a ,uestion of fact7 other than upon the pleadings7 arises upon motion or otherwise7 in an* stage of a case7 or for carr*ing a %udgment or order into effect (Sec. 2). ,OWERS O) /OMMISSIONER Bnder the Rules7 the courtCs order ma* specif* or limit the powers of the commissioner. 0ence7 the order ma* direct him toE a? Report onl* upon particular issues9 b? Do or perform particular acts9 or c? Receive and report evidence onl*. 4he order ma* also fi1 the date for beginning and closing of the hearings and for the filing of his report. Sub%ect to such limitations stated in the order7 the commissionerE a? Shall e1ercise the power to regulate the proceedings in ever* hearing before him9 b? Shall do all acts and take all measures necessar* or proper for the efficient performance of his duties under the order9 c? $a* issue subpoenas and subpoenas duces tecum7 and swear witnesses9 and d? Rule upon the admissibilit* of evidence7 unless otherwise provided in the order of reference (Sec. 3, *u e 32). /OMMISSIONERDS RE,ORTH NOTI/E TO ,ARTIES AND >EARIN+ ON T>E RE,ORT

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4he commissionerCs report is not binding upon the court which is free to adopt7 modif*7 or re%ect7 in whole or in part7 the report. 4he court ma* receive further evidence or recommit the report with instructions (Sec. 11, *u e 32) #otice of the filing of the report must be sent to the parties for the purpose of giving them an opportunit* to present their ob%ections. 4he failure to grant the parties7 in due form7 this opportunit* to ob%ect7 ma*7 in some instances7 constitute a serious error in violation of their substantial rights. 4he rule7 however7 is not absolute. :n one case7 it was ruled that although the parties were not notified of the filing of the commissionerCs reports7 and the court failed to set said report for hearing7 if the parties who appeared before the commissioner were dul* represented b* counsel and given an opportunit* to be heard7 the re,uirement of due process has been satisfied7 and a decision on the basis of such report7 with the other evidence of the case is a decision which meets the re,uirements of fair and open hearing. :n the hearing to be conducted on the commissionerCs report7 the court will review onl* so much as ma* be drawn in ,uestion b* proper ob%ections. :t is not e1pected to rehear the case upon the entire record. DEM(RRER TO EVIDEN/E ;R%$ 11= Demurrer to evidence is a motion to dismiss filed b* the defendant after the plaintiff had rested his case on the ground of :#SB55:C:2#CH 35 2;:D2#C2. 4he provision of the Rules governing demurrer to evidence does not appl* to an election case. +RO(ND After plaintiff has finished presenting evidence7 the defendant ma* move for dismissal of the complaint on the ground upon the facts and the law7 the plaintiff shown no right to relief. his the that has

evidence is interlocutor* and is therefore7 not appealable. :t can however be the sub%ect of a petition for certiorari in case of grave abuse of discretion or an oppressive e1ercise of %udicial authorit*. :f the motion is granted and the order of dismissal is reversed on appeal 7 the movants loses his right to present the evidence on his behalf. 4he appellate court in case it reverses the grant of the motion7 should render the %udgment therein based on the evidence submitted b* the plaintiff. :t is not correct for the appellate court reversing the order granting the demurrer to remand the case to the trial court for further proceedings. 4he appellate court should7 instead of remanding the case7 render %udgment on the basis of the evidence submitted b* the plaintiff. WAIVER O) RI+>T TO ,RESENT EVIDEN/E :f the demurrer is granted but on appeal the order of dismissal is reversed7 the defendant is deemed to have waived his right to present evidence. DEM(RRER TO EVIDEN/E IN A /IVIL /ASE VERS(S DEM(RRER TO EVIDEN/E IN A /RIMINAL /ASE :n a civil case7 leave of court is not re,uired before filing a demurrer. :n a criminal case7 leave of court is filed with or without leave of court (Sec. 23, *u e 119). :n a civil case7 if the demurrer is granted7 the order of dismissal is appealableSsince the motion is interlocutor*. :n a criminal case7 the order of dismissal is not appealable because of the constitutional polic* against double %eopard* Sdenial is tantamount to ac,uittal7 final and e1ecutor*. :n civil case7 if the demurrer is denied7 the defendant ma* proceed to present his evidence. :n a criminal case7 the accused ma* adduce his evidence onl* if the demurrer is filed with leave of court. 0e cannot present his evidence if he filed the demurrer without leave of court (Sec. 23, *u e 119). :n civil case7 the plaintiff files a motion to den* motion to demurrer to evidence. :n criminal case7 the court ma* $otu !ro!rio den* the motion.

E))E/T O) DENIALH E))E/T O) +RANT :n the event his motion is denied7 the defendant does not waive his right to offer evidence. 4he defendant shll have the right to present his evidence. An order den*ing a demurrer to

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.(D+MENTS AND )INAL ORDERS ;R%$ s 12 14= .(D+MENT WIT>O(T TRIAL 4he theor* of summar* %udgment is that although an answer ma* on its face appear to tender issuesSre,uiring trialS*et if it is demonstrated b* affidavits7 depositions7 or admissions that those issues are not genuine7 but sham or fictitious7 the Court is %ustified in dispensing with the trial and rendering summar* %udgment for plaintiff. 4he court is e1pected to act chiefl* on the basis of the affidavits7 depositions7 admissions submitted b* the movants7 and those of the other part* in opposition thereto. 4he hearing contemplated >with !D-da* notice? is for the purpose of determining whether the issues are genuine or not7 not to receive evidence on the issues set up in the pleadings. A hearing is not thus 'e ri3uer. 4he matter ma* be resolved7 and usuall* is7 on the basis of affidavits7 depositions7 admissions. :n one case7 the summar* %udgment here was %ustified7 considering the absence of opposing affidavits to contradict the affidavits. /ONTENTS O) A .(D+MENT /udgment has two partsE !? the bod* of the %udgment or the r"tio 'eci'en'i, and "? the dispositive portion of the %udgment or f" o. 4he bod* of the decision (r"tio 'eci'en'i) is not the part of the %udgment that is sub%ect to e1ecution but the f" o because it is the latter which is the %udgment of the court. 4he importance of fallo or dispositive portion of a decision should state whether the complaint or petition is granted or denied7 the specific relief granted7 and the costs. :t is the dispositive part of the %udgment that actuall* settles and declares the rights and obligations of the parties7 finall*7 definitivel*7 and authoritativel*. 4he general rule is that where there is a conflict between the fallo and the ratio decidendi7 the

fallo controls. 4his rule rests on the theor* that the fallo is the final order while the opinion in the bod* is merel* a statement ordering nothing. <here the inevitable conclusion from the bod* of the decision is so clear that there was a mere mistake in the dispositive portion7 the bod* of the decision prevails. A %udgment must have the signature of the %udge. .(D+MENT ON T>E ,LEADIN+S ;R(LE 12= <here an answer fails to tender an issue7 or otherwise admits the material allegations of the adverse part*Ls pleading7 the court ma*7 on motion of that part*7 direct %udgment on such pleading. 4he following actions CA##34 be the sub%ect of a %udgment on the pleadingsE !? declaration of nullit* of marriage "? annulment of marriage &? legal separation :n cases of unli,uidated damages7 or admission of the truth of allegation of adverse part*7 the material facts alleged in the complaint shall alwa*s be proved. S(MMAR' .(D+MENTS ;R(LE 13= A summar* %udgment or accelerated %udgment is a procedural techni,ue to promptl* dispose of cases where the facts appear undisputed and certain from the pleadings7 depositions7 admissions and affidavits on record7 of for weeding out sham claims or defenses at an earl* stage of the litigation to avoid the e1pense and loss of time involved in a trial. $oreover7 said summar* %udgment must be premised on the absence of an* other triable genuine issues of fact. 3therwise7 the movants cannot be allowed to obtain immediate relief. A genuine issue is such issue of fact which re,uires presentation of evidence as distinguished from a sham7 fictitious7 contrived or false claim. 4he re,uisites areE !? there must be no genuine issue as to an* material fact7 e1cept for the amount of damages9 and

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"? the part* presenting the motion for summar* %udgment must be entitled to a %udgment as a matter of law. )OR T>E /LAIMANT A part* seeking to recover upon a claim7 counterclaim7 or cross-claim or to obtain a declarator* relief ma*7 at an* time after the pleading in answer thereto has been served7 move with supporting affidavits7 depositions or admissions for a summar* %udgment in his favor upon all or an* part thereof (Sec. 1). )OR T>E DE)ENDANT A part* against whom a claim7 counterclaim7 or cross-claim is asserted or a declarator* relief is sought ma*7 "t "n+ ti$e7 move with supporting affidavits7 depositions or admissions for a summar* %udgment in his favor as to all or an* part thereof (Sec. 2). W>EN T>E /ASE NOT )(LL' AD.(DI/ATED :f %udgment is not rendered upon the whole case7 the court shall ascertain what material facts e1ist without substantial controvers* and those that are controverted. 4he court shall then render a partial %udgement with trial to proceed on the matters that remain controverted. A))IDAVITS AND ATTA/>MENTS Supporting and opposing affidavits shall be made on personal knowledge7 shall set forth such facts as would be admissible in evidence7 and shall show affirmativel* that the affiant is competent to testif* to the matters stated therein. Certified true copies of all papers or parts thereof referred to in the affidavit shall be attached thereto or served therewith (Sec. 5). Should it appear to its satisfaction at an* time that an* of the affidavits presented pursuant to the Rules are presented in bad faith7 or solel* for the purpose of dela*7 the court shall forthwith order the offending part* or counsel to pa* to the other part* the amount of the reasonable e1penses which the filing of the affidavits caused him to incur7 including attorne*Ls fees. :t ma*7 after hearing7 further ad%udge the offending part* or counsel guilt* of contempt (Sec. ;). .(D+MENTS ON T>E ,LEADIN+S VERS(S S(MMAR' .(D+MENTS

a? :n the %udgment on the pleadings7 the answer


does not tender an issue9 in summar* %udgment7 there is an issue tendered in the answer7 but it is not genuine or real issue as ma* be shown b* affidavits and depositions that there is no real issue and that the part* is entitled to %udgment as a matter of right9 b? :n %udgment on the pleadings7 the movants must give a &-da* notice of hearing9 while in summar* %udgment7 the opposing part* is given !D da*s notice9 c? :n %udgment on the pleadings7 the entire case ma* be terminated9 while in summar* %udgment7 it ma* onl* be partial9 d? :n %udgment on the pleadings7 onl* the plaintiff or the defendants as far as the counterclaim7 cross-claim or third-part* complaint is concerned can file the same9 while in summar* %udgment7 either the plaintiff or the defendant ma* file it. RENDITION O) .(D+MENTS AND )INAL ORDERS R n#ition o: @%#gm nt is the filing of the same with the clerk of court. :t is #34 the pronouncement of the %udgment in open court that constitutes the rendition. 2ven if the %udgment has alread* been put in writing and signed7 it is still sub%ect to amendment if it has not *et been filed with the clerk of court and before its filing does not *et constitute the real %udgment of the court. :t is #34 the writing of the %udgment or its signing which constitutes rendition of the %udgment. A @%#gm nt or :ina$ or# r determining the merits of the case shall be in writing personall* and directl* prepared b* the %udge7 stating clearl* and distinctl* the facts and the law on which it is based7 signed b* him7 and filed with the clerk of the court (Sec. 1, *u e 3;). ENTR' O) .(D+MENT AND )INAL ORDER :f no appeal or motion for new trial or reconsideration is filed within the time provided in the Rules7 the %udgment or final order shall forthwith be entered b* the clerk in the book of entries of %udgments. 4he record shall contain the dispositive part of the %udgment or final order and shall be signed b* the clerk7 with a certificate that such %udgment or final order has become final and e1ecutor* (Sec. 2).

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4he entr* of %udgment refers to the ph*sical act performed b* the clerk of court in entering the dispositive portion of the %udgment in the book of entries of %udgment and after the same has become final and e1ecutor*. 4he date of finalit* of the %udgment or final order shall be deemed the date of its entr*. 4hus7 while there has been no physical entry of #udgment in the boo! of entries, it is deemed to have been constructively made at the time of the finality of the #udgment or final order. 4here are some proceedings the filing of which is reckoned from the date of the entr* of %udgmentE !? the e1ecution of a %udgment b* motion is within five >(? *ears from the entr* of the %udgment (Sec. ;, *u e 39); "? the filing of a petition for relief has7 as one of its periods7 not more than si1 >)? months from the entr* of the %udgment or final order (Sec. 3, *u e 3<). ,OST .(D+MENT REMEDIES ;R%$ s 15? 16? 2025? 32? 31= R m #i s 9 :or a @%#gm nt 9 com s :ina$ an# x c%tory a? $otion for reconsideration >prohibited in a case that falls under summar* procedure? (*u es 3:, 52); b? $otion for new trial (*u es 3:, 53); and c? Appeal (*u es 8., 81, 82, 83, 85) R m #i s a:t r @%#gm nt 9 com s :ina$ an# x c%tory a? etition for relief from %udgment9 b? Action to annul a %udgment9 c? Certiorari9 and d? Collateral attack of a %udgment. MOTION )OR NEW TRIAL OR RE/ONSIDERATION ;R(LE 15= +RO(NDS )OR A MOTION )OR NEW TRIAL

diligence7 have discovered and produced at the trial7 and which if presented would probabl* alter the result9 and &? Award of e1cessive damages7 or insufficienc* of the evidence to %ustif* the decision7 or that the decision is against the law (Sec. 1, *u e 3:). +RO(NDS )OR A MOTION )OR RE/ONSIDERATION !? 4he damages awarded are e1cessive9 "? 4he evidence is insufficient to %ustif* the decision or final order9 &? 4he decision or final order is contrar* to law.

"nd $R is not allowed e1cept in SC


W>EN TO )ILE

A motion for new trial should be filed within

the period for taking an appeal. 0ence7 it must be filed before the finalit* of the %udgment. #o motion for e1tension of time to file a motion for reconsideration shall be allowed. 4he period for appeal is within !( da*s after notice to the appellant of the @%#gm nt or :ina$ or# r appealed from. <here a record on appeal is re,uired7 the appellant shall file a notice of appeal and a record on appeal within &D da*s from notice of the %udgment or final order. A record on appeal shall be re,uired onl* in special proceedings and other cases of multiple or separate appeals (Sec. 3, *u e 8.). DENIAL O) T>E MOTIONH E))E/T

:f the motion is denied7 the movants has a

!? 5raud >e1trinsic?7 accident7 mistake >of fact


and not of law? or e1cusable negligence >5A$2#? which ordinar* prudence could not have guarded against and b* reason of which such aggrieved part* has probabl* been impaired in his rights9 "? #ewl* discovered evidence >Berr* Rule?7 which he could not7 with reasonable

1fresh period2 of fifteen days from receipt or notice of the order den*ing or dismissing the motion for reconsideration within which to file a notice of appeal of the %udgment or final order. $eaning7 the defendant is given a Mfresh periodN of !( da*s counted from the receipt of the order dismissing the motion for new trial or reconsideration. <hen the motion for new trial is denied on the ground of fraud7 accident7 mistake of fact or law7 or e1cusable negligence7 the aggrieved part* can no longer avail of the remed* of petition for relief from %udgment +RANT O) T>E MOTIONH E))E/T

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:f a new trial be granted7 the original

%udgment shall be vacated or set aside7 and the action shall stand for tri" 'e no6o9 but the recorded evidence taken upon the former trial so far as the same is material and competent to establish the issues7 shall be used at the new trial without retaking the same (Sec. ;). 4he filing of the motion for new trial or reconsideration interrupts the period to appeal (Sec. 2, *u e 8.; Sec. 3, *u e 81). :f the court grants the motion >e.g.7 it finds that e1cessive damages have been awarded or that the %udgment or final order is contrar* to the evidence or law?7 it ma* amend such %udgment or final order accordingl* (Sec. 3). 4he amended %udgment is in the nature of a new %udgment which supersedes the original %udgment. :t is not a mere supplemental decision which does not supplant the original but onl* serves to add something to it. :f the court finds that a motion affects the issues of the case as to onl* a part7 or less than all of the matters in controvers*7 or onl* one7 or less that all of the parties to it7 the order ma* grant a reconsideration as to such issues if severable without interfering with the %udgment or final order upon the rest (Sec. :). REMED' W>EN MOTION IS DENIED

4he part* aggrieved should appeal the

%udgment. 4his is so because a second motion for reconsideration is e1pressl* prohibited. An order den*ing a motion for reconsideration or new trial is not appealable7 the remed* being an appeal from the %udgment or final order un'er *u e 3<. 4he remed* from an order den*ing a motion for new trial is not to appeal from the order of denial. Again7 the order is not appealable. 4he remed* is to appeal from the %udgment or final order itself sub%ect of the motion for new trial (Sec. 9, ru e 3:). )RES> 13<DA' ,ERIOD R(LE

new trial has been filed but was denied or dismissed. 1his fresh !erio' ru e "!! ies on + to *u e 81 3o6ernin3 "!!e" s fro$ the *1C %ut " so to *u e 8. 3o6ernin3 "!!e" s fro$ ,1C to *1C, *u e 82 on !etitions for re6ie) fro$ the *1C to the CA, *u e 83 on "!!e" fro$ (u"si/ &u'ici" "3encies to the CA, "n' *u e 85 3o6ernin3 "!!e" s %+ certior"ri to the SC. Accordingl*7 this rule was adopted to standardi@e the appeal periods provided in the Rules to afford fair opportunit* to review the case and7 in the process7 minimi@e errors of %udgment. O90io%s$y? t! n " 13 #ay - rio# may 9 a0ai$ # o: on$y i: it! r motion is :i$ #H otherwise7 the decision becomes final and e1ecutor* after the lapse of the original appeal period provided in *u e 81 (-e+!es 6s. CA., Se!t. 18, 2..5). 4he #e*pes ruling shall not be applied where no motion for new trial or motion for reconsideration has been filed in which case the !(-da* period shall run from notice of the %udgment. 4he fresh period rule does not refer to the period within which to appeal from the order den*ing the motion for new trial because the order is not appealable under Sec. .7 Rule &+. 4he non-appealabilit* of the order of denial is also confirmed b* Sec. !>a?7 Rule '!7 which provides that no appeal ma* be taken from an order den*ing a motion for new trial or a motion for reconsideration. 4he SC ruled in one case that this Mfresh period of appealN is also applicable in criminal cases ($udith %u vs. $udge &amson, 'eb. (, 2011) A,,EALS IN +ENERAL

4he right to appeal is not part of due process but a mere statutor* privilege that has to be e1ercised onl* in the manner and in accordance with the provisions of law 4he general rule is that the remed* to obtain reversal or modification of %udgment on the merits is appeal. 4his is true even if the error7 or one of the errors7 ascribed to the court rendering the %udgment is its lack of %urisdiction over the sub%ect matter7 or the e1ercise of power in e1cess thereof7 or grave abuse of discretion in the findings of facts or of law set out in the decision. Certain rules on appealE

:f the motion is denied7 the movants has a


fresh period of !( da*s from receipt or notice of the order den*ing or dismissing the motion for reconsideration within which to file a notice to appeal. 4his new period becomes significant if either a motion for reconsideration or a motion for

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a? #o trial de novo an*more. 4he appellate


courts must decide the case on the basis of the record7 e1cept when the proceedings were not dul* recorded as when there was absence of a ,ualified stenographer. 4here can be no new parties. 4here can be no change of theor* (-"6" 6s. CA, 8<3 SC*A 1.2). 4here can be no new matters. 4here can be amendments of pleadings to conform to the evidence submitted before the trial court. 4he liabilit* of solidarit* defendant who did not appeal is not affected b* appeal of solidarit* debtor. Appeal b* guarantor does not inure to the principal. :n e%ectment cases7 the R4C cannot award to the appellant on his counterclaim more than the amount of damages be*ond the %urisdiction of the $4C. 4he appellate court cannot dismiss the appealed case for failure to prosecute because the case must be decided on the basis of the record.

the main case is pending7 unless the court allows an appeal therefrom9 and -? An order dismissing and action without pre%udice (Sec. 1, *u e 81). A ,uestion that was never raised in the courts below cannot be allowed to be raised for the first time on appeal without offending basic rules of fair pla*7 %ustice and due process. 5or an appellate court to consider a legal ,uestion7 it should have been raised in the court below. :t would be unfair to the adverse part* who would have no opportunit* to present evidence in contra to the new theor*7 which it could have done had it been aware of it at the time of the hearing before the trial court. :t is true that this rule admits of e1ceptions as in cases of lack of %urisdiction7 where the lower court committed plain error7 where there are %urisprudential developments affecting the issues7 or when the issues raised present a matter of public polic*. 4he court ma* consider an error not raised on appeal provided the same falls within an* of the following categoriesE !? :t is an error that affects the %urisdiction over the sub%ect matter9 "? :t is an error that affects the validit* of the %udgment appealed from9 &? :t is an error which affects the proceedings9 '? :t is an error closel* related to or dependent on an assigned error and properl* argued in the brief9 or (? :t is a plain and clerical error. REMED' A+AINST .(D+MENTS AND ORDERS W>I/> ARE NOT A,,EALABLE

b? d? e? f? g? h?

c?

i?

.(D+MENTS AND )INAL ORDERS S(B.E/T TO A,,EAL An appeal ma* be taken onl* from %udgments or final orders that completel* dispose of the case (Sec. 1, *u e 81). An interlocutor* order is not appealable until after the rendition of the %udgment on the merits. MATTERS NOT A,,EALABLE #o appeal ma* be taken fromE !? An order den*ing a motion for new trial or a motion for reconsideration9 "? An order den*ing a petition for relief or an* similar motion seeking relief from %udgment9 &? An interlocutor* order9 '? An order disallowing or dismissing an appeal9 (? An order den*ing a motion to set aside a %udgment b* consent7 confession or compromise on the ground of fraud7 mistake or duress7 or an* other ground vitiating consent9 )? An order of e1ecution9 +? A %udgment or final order for or against one or more of several parties or in separate claims7 counterclaims7 crossclaims7 and third-part* complaints7 while

:n those instances where the %udgment or

final order is not appealable7 the aggrieved part* ma* file the appropriate special civil action under *u e ;5. *u e ;5 refers to the special civil actions of certiorari7 prohibition and mandamus >C $?. racticall*7 it would be the special civil action of certiorari that would be availed of under most circumstances. 4he most potent remed* against those %udgments and orders from which appeal cannot be taken is to allege and prove that the same were issued without %urisdiction7 with grave abuse of discretion or in e1cess of %urisdiction7 all amounting to lack of %urisdiction.

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MODES O) A,,EAL ;SE/& 2? R(LE 21= >a? ORDINAR' A,,EAL 4he appeal to the CA in cases decided b* the R4C in the e1ercise of its original %urisdiction shall be taken b* :i$ing a notic o: a-- a$ with the court which rendered the %udgment or final order appealed from and serving a cop* thereof upon the adverse part*. #o record on appeal shall be re,uired e1cept in special proceedings and other cases of multiple or separate appeals where the law or the Rules so re,uire. :n such cases7 the record on appeal shall be filed and served in like manner. >b? ,ETITION )OR REVIEW 4he appeal to the CA in cases decided b* the R4C in the e1ercise of its appellate %urisdiction shall be b* - tition :or r 0i " in "ccor'"nce )ith *u e 82. >c? ,ETITION )OR REVIEW ON /ERTIORARI :n all cases where onl* ,uestions of law are raised or involved7 the appeal shall be to the SC b* - tition :or r 0i " on c rtiorari in "ccor'"nce )ith *u e 85. ISS(ES TO BE RAISED ON A,,EAL <hether or not the appellant has filed a motion for new trial in the court below7 he ma* include in his assignment or errors an* ,uestion of law or fact that has been raised in the court below and which is within the issues framed b* the parties (Sec. 15, *u e 88). !? :n an 3rdinary Appeal7 the appeal raises the ,uestions of fact or mi1ed ,uestions of fact and law. "? :n Petition for /eview7 the appeal raises ,uestions of fact7 of law or mi1ed ,uestions of fact and law. &? :n a Petition for /eview on )ertiorari7 the appeal raises purel* ,uestions of law. ,ERIOD O) A,,EAL ,ERIOD O) ORDINAR' A,,EAL (NDER R(LE 20 An appeal ma* be taken (fro$ ,1C to *1C) within !( da*s after notice to the appellant of the %udgment or final order

appealed from. <here a record on appeal is re,uired7 the appellant shall file a notice of appeal and a record on appeal within &D da*s after notice of the %udgment or final order. 4he period of appeal shall be interrupted b* a timel* motion for new trial or reconsideration. #o motion for e1tension of time to file a motion for new trial or reconsideration shall be allowed (Sec. 2). ,ERIOD O) ORDINAR' A,,EAL (NDER R(LE 21= 4he appeal shall be taken within !( da*s from notice of the %udgment or final order appealed from. <here a record on appeal is re,uired7 the appellants shall file a notice of appeal and a record on appeal within &D da*s from notice of the %udgment or final order. 0owever7 on appeal in habeas corpus cases shall be taken within '- hours from notice of the %udgment or final order appealed from (A, -o. .1/1/.3/SC, 2une 19, 2..1). 4he period of appeal shall be interrupted b* a timel* motion for new trial or reconsideration. #o motion for e1tension of time to file a motion for new trial or reconsideration shall be allowed (Sec. 3). :f the record on appeal is not transmitted to the CA within &D da*s after the perfection of appeal7 either part* ma* file a motion with the trial court7 with notice to the other7 for the transmittal of such record or record on appeal (Sec. 3, *u e 88). ,ERIOD O) ,ETITION )OR REVIEW (NDER R(LE 22 4he petition shall be filed and served within !( da*s from notice of the decision sought to be reviewed or of the denial of petitionerCs motion for new trial or reconsideration filed in due time after %udgment. 4he court ma* grant and additional period of !( da*s onl* provided the e1tension is sought a? upon proper motion7 and b? there is pa*ment of the full amount of the docket and other lawful fees and the deposit for costs before the e1piration of the reglementar* period.

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#o further e1tension shall be granted e1cept for the most compelling reason and in no case to e1ceed !( da*s. ,ERIOD O) A,,EAL B' ,ETITION )OR REVIEW (NDER R(LE 21 4he appeal shall be taken within !( da*s from notice of the award7 %udgment7 final order or resolution7 or from the date of its last publication7 if publication is re,uired b* law for its effectivit*7 or of the denial of petitionerCs motion for new trial or reconsideration dul* filed in accordance with the governing law of the court or agenc* a ,uo. 3nl* one >!? motion for reconsideration shall be allowed. Bpon proper motion and the pa*ment of the full amount of the docket fee before the e1piration of the reglementar* period7 the CA ma* grant an additional period of !( da*s onl* within which to file the petition for review. #o further e1tension shall be granted e1cept for the most compelling reason

and in no case to e1ceed !( da*s (Sec. 8). ,ERIOD O) A,,EAL B' ,ETITION )OR REVIEW ON /ERTIORARI (NDER R(LE 23 4he appeal which shall be in the form of a verified petition shall be filed within !( da*s from notice of the %udgment7 final order or resolution appealed from7 or within !( da*s from notice of the denial of the petitionerCs motion for new trail or motion for reconsideration filed in due time. 4he Supreme Court ma*7 for %ustifiable reasons7 grant an e1tension of &D da*s onl* within which to file the petition providedE a? there is a motion for e1tension of time dul* filed and served9 b? there is full pa*ment of the docket and other lawful fees and the deposit for costs9 and c? the motion is filed and served and the pa*ment is made before the e1piration of the reglementar* period. , rio# o: a-- a$ i: -arty :i$ s M)R or N " Tria$ (4eypes octrine) <ithin !( da*s from receipt of order den*ing motion for reconsideration or new trial 4he &D-da* to file the notice of appeal and record on appeal should reckoned from the receipt of the order den*ing the motion for new trial or motion for reconsi'er"tion (>"+co 6s. Ci$ o, A!ri 1;, 2..<) <ithin !( da*s from receipt of the order den*ing motion for reconsideration or new trial <ithin !( da*s from receipt of the order den*ing motion for reconsideration or new trial <ithin !( da*s from receipt of the order den*ing motion for reconsideration or new trial

MODE O) A,,EAL Or#inary A-- a$ (/ules 50, 51) a= Notic o: A-- a$ (/ule 50) 9= R cor# on A-- a$ (/ule 51)

,ERIOD O) A,,EAL

<ithin !( da*s from receipt of %udgment or final order <ithin &D da*s from receipt of %udgment or final order

, R , R

tition :or 0i " (/ule 52) tition :or 0i " (/ule 5*) 9y (/ule

A-- a$ / rtiorari 5")

<ithin !( da*s from receipt of %udgment <ithin !( da*s from receipt of %udgment or final order or of last publication <ithin !( da*s from receipt of %udgment or final order

,ER)E/TION O) A,,EALS )or Or#inary A-- a$s :rom MT/ to t! RT/ ;R%$ 20= an# :rom t! RT/ to t! /A ;R%$ 21=& A part*Cs appeal b* notice of appeal is deemed perfected as to him upon the filing of the notice of appeal in due time. Bpon such perfection or the e1piration of the same to appeal b* the other parties7

the court loses %urisdiction over the sub%ect matter thereof A part*Cs appeal b* record on appeal is deemed perfected as to him with respect to the sub%ect matter thereof upon the approval of the record on appeal filed in due time. 4he court has %urisdiction onl* over the sub%ect matter thereof upon such approval for the e1piration of the time to appeal of the other parties.

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:n either case7 prior to the transmittal of

the original record or the record on appeal7 the court ma* issue orders for the protection and preservation of the rights of the parties which do not involve an* matter litigated b* the appeal7 approve compromises7 permit appeals of indigent litigants7 order e1ecution pending appeal in accordance with Sec. 2, *u e 39, and allow withdrawal of the appeal (Sec. 9, *u e 81).

4he appeal is taken b* filing a notice of appeal with the court that rendered the %udgment or final order appealed from. 4he notice of appeal shall indicate the parties to the appeal7 the %udgment or final order or part thereof appealed from7 and state the material dates showing the timeliness of the appeal. A record on appeal shall be re,uired onl* in special proceedings and in other cases of multiple or separate appeals. A,,EAL )ROM .(D+MENTS OR )INAL ORDERS O) T>E RT/ 4here are three modes of appealing a %udgment or final order of the R4CE !? Or#inary A-- a$ (*u e 81) from the %udgment or final order of the R4C in the e1ercise of its original %urisdiction "? , tition :or R 0i " (*u e 82) from the %udgment or final order of the R4C to the CA in cases decided b* the R4C in the e1ercise of its appellate %urisdiction &? , tition :or R 0i " on / rtiorari (*u e 85) A,,EAL )ROM .(D+MENTS OR )INAL ORDERS O) T>E /A

, r: ction o: A-- a$ 9y , tition :or R 0i " %n# r R%$ 22& ;S c&6= Bpon the timel* filing of a petition for review and the pa*ment of the corresponding docket and other lawful fees7 the appeal is deemed perfected as to the petitioner. 4he R4C loses %urisdiction over the case upon the perfection of the appeals filed in due time and the e1piration of the time to appeal of the other parties. 0owever7 before the CA give due course to the petition7 the R4C ma* issue orders for the protection and preservation of the rights of the parties which do not involve an* matter litigated b* the appeal7 approve compromises7 permit appeals of indigent litigants7 order e1ecution pending appeal in accordance with Sec. 2, *u e 39, and allow withdrawal of the appeal. 21cept in civil cases decided under Rules on Summar* rocedure7 the appeal shall sta* the %udgment or final order unless the CA7 the law7 or the Rules provide otherwise. A,,EAL )ROM .(D+MENTS OR )INAL ORDERS O) T>E MT/ An appeal from a %udgment or final order of a $4C ma* be taken to the R4C e1ercising %urisdiction over the area over which the $4C sits. 4he title of the case shall remain as it was in the court of origin7 but the part* appealing the case shall be further referred to as the appellant and the adverse part* as the appellee (Sec. 1, *u e 8.). <here the $4C dismisses a case for lack of %urisdiction of such dismissal is made to the R4C7 should the latter affirm the dismissal and if it has %urisdiction over the sub%ect matter7 the R4C is obliged to tr* the case as if it were originall* filed with it.

a? Appeal from the %udgments or final orders of


the CA concerning purel* ,uestions of law which must be distinctl* set forth ma* be elevated to the SC b* wa* of *u e 850 , titions :or R 0i " on / rtiorari& b? 4he general rule is that the SC shall not entertain ,uestions of fact7 e1cept in the following casesE a? 4he conclusion of the CA is grounded entirel* on speculations7 surmises and con%ectures9 b? 4he inference made is manifestl* mistaken7 absurd or impossible9 c? 4here is grave abuse of discretion9 d? 4he %udgment is based on misapprehension of facts9 e? 4he findings of facts are conflicting9 f? 4he CA in making its findings went be*ond the issues of the case and the same is contrar* to the admissions of both appellant and appellee9 g? 4he findings are contrar* to those of the trial court9 h? 4he facts set forth in the petition as well as in the petitionerLs main and repl* briefs are not disputed b* the respondents9 i? 4he findings of fact of the CA are premised on the supposed absence of

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%?

evidence and contradicted b* the evidence on record9 or 4hose filed under <rits of amparo7 habeas data7 or kalikasan.

Appeals from decisions of the 3mbudsman in a#ministrati0 #isci-$inary actions should be brought to the CA under *u e 83. 4he CA has %urisdiction over orders7 directives and decisions of the 3ffice of the 3mbudsman in administrative cases onl* under *u e 83. But in cases in which it is alleged that the 3mbudsman has acted with grave abuse of discretion amounting to lack or e1cess of %urisdiction amounting to lack or e1cess of %urisdiction7 a special civil action of certiorari under *u e ;5 ma* be filed with the SC to set aside the 3mbudsmanCs order or resolution. In crimina$ or non<a#ministrati0 cas 7 the ruling of the 3mbudsman shall be elevated to the SC b* wa* of *u e ;5. 4he SCCs power to review over resolutions and orders of the 3ffice of the 3mbudsman is restricted on to determining whether grave abuse of discretion has been committed b* it. 4he Court is not authori@ed to correct ever* error or mistake of the 3ffice of the 3mbudsman other than grave abuse of discretion. 4he remed* is not a petition for review on certiorari under Rule '(. REVIEW O) )INAL ORDERS O) T>E NLR/ 4he remed* of a part* aggrieved b* the decision of the #ational Labor Relations Commission >#LRC? is to promptl* move for the reconsideration of the decision and if denied to timel* file a special civil action of certiorari under Rule )( within )D da*s from notice of the decision. :n observance of the doctrine of hierarch* of courts7 the petition for certiorari should be filed in the CA >St. ,"rtin Duner" Co$es 6s. -5*C, Se!t. 1;, 199<). Should the same be filed with the SC7 the latter shall dismiss the same instead of referring the action to the CA. REVIEW O) )INAL ORDERS O) T>E A(ASI< .(DI/IAL A+EN/IES Appeals from %udgments and final orders of ,uasi-%udicial bodies6agencies are now re,uired to be brought to the CA. 4his rule was adopted precisel* to provide a uniform rule of appellate procedure from ,uasi-%udicial bodies. 4he appeal under *u e 83 ma* be taken to the CA whether the appeal involves a

A,,EAL )ROM .(D+MENTS OR )INAL ORDERS O) T>E /TA Bnder Sec. 11 of *A 92<2, no civil proceeding involving matters arising under the #:RC7 the 4CC or the Local 8overnment Code shall be maintained7 e1cept as herein provided7 until and unless an appeal has been previousl* filed with the C4A and disposed of in accordance with the provisions of the Act. A part* adversel* affected b* a resolution of a Division of C4A on a motion for reconsideration or new trial7 ma* file a petition for review with the C4A en banc. Sec. 11 of *A 92<2 further provides that a part* adversel* affected b* a decision or ruling of the C4A en banc ma* file with the SC a verified - tition :or r 0i " on c rtiorari pursuant to *u e 85. REVIEW O) )INAL .(D+MENTS OR )INAL ORDERS O) T>E /OMELE/ A %udgment7 resolution or final order of the C3$2L2C ma* be brought b* the aggrieved part* to the SC on certiorari under *u e ;5 in relation to *u e ;8, b* filing the petition within &D da*s from notice. REVIEW O) )INAL ORDERS O) T>E /S/ A %udgment7 final order or resolution of the Civil Service Commission ma* be taken to the CA under *u e 83. -ote the 'ifference %et)een the $o'e of "!!e" fro$ " &u'3$ent of the CSC "n' the $o'e of "!!e" fro$ the &u'3$ents of other constitution" co$$issions. REVIEW O) )INAL ORDERS O) T>E /OA A %udgment7 resolution or final order of the Commission on Audit ma* be brought b* the aggrieved part* to the SC on certiorari under *u e ;5 in relation to *u e ;87 b* filing the petition within &D da*s from notice. REVIEW O) )INAL ORDERS O) T>E OMB(DSMAN

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,uestion of fact7 a ,uestion of law7 or mi1ed ,uestions of fact and law b* filing a verified petition for review with the CA. 4he appeal shall #34 sta* the award7 %udgment7 final order or resolution sought to be reviewed B#L2SS the CA shall direct otherwise upon such terms as it ma* deem %ust. RELIE)S )ROM .(D+MENTS (or petition for relief from denial of appeal) ORDERS AND OT>ER ,RO/EEDIN+S ;R(LE 16= A petition for relief from %udgment is an e,uitable remed* that is allowed onl* in e1ceptional cases when there is no other available or ade,uate remed*. A remed* where a part* seek to set aside a %udgment rendered against him b* a court whenever he was un%ustl* deprived of a hearing or was prevented from taking an appeal because of fraud7 accident7 mistake or e1cusable negligence. Bnder Sec. 5, *u e 3<7 the court ma* grant preliminar* in%unction to preserve the rights of the parties upon the filing of a bond in favor of the adverse part*. 4he bond is conditioned upon the pa*ment to the adverse part* of all damages and costs that ma* be awarded to such adverse part* b* reason of the issuance of the in%unction (Sec. 5). +RO(NDS )OR AVAILIN+ O) T>E REMED' ;,ETITION )OR RELIE)= <hen a %udgment or final order is entered7 or an* other proceeding is thereafter taken against a part* in an* court through >a? fraud7 >b? accident7 >c? mistake7 or >c? e1cusable negligence >5A$2#?7 he ma* file a petition in such court and in the same case pra*ing that the %udgment7 order or proceeding be set aside (Sec. 1, *u e 3<). <hen the petitioner has been prevented from taking an appeal b* fraud7 mistake7 or e1cusable negligence (Sec. 2). TIME TO )ILE ,ETITION A petition for relief from %udgment7 order or other proceedings must be verified7 filedE !? within )D da*s after the petitioner learns of the %udgment7 final order7 or other proceeding to be set aside7 and

"?

not more than si1 >)? months after such %udgment or final order was entered7 or such proceeding was taken. 4hese two periods must concur. Both periods are not e1tendible and are never interrupted. /ONTENTS O) ,ETITION 4he petition must be verified and must be accompanied with affidavits showing fraud7 accident7 mistake or e1cusable negligence relied upon and it must have an affidavit of merit showing the facts constituting the petitionerCs good and substantial cause of action or defense7 as the case ma* be. ANN(LMENT O) .(D+MENTS OR )INAL ORDERS AND RESOL(TIONS ;R(LE 25= 4he annulment of %udgment if a remed* independent of the case where the %udgment sought to be annulled was rendered and ma* be availed of though the %udgment ma* have been e1ecuted. :ts purpose is to have the %udgment set aside so that there will be a renewal of litigation where the ordinar* remedies of new trial7 appeal7 relief from %udgment are no longer available without the petitionerCs fault. +RO(NDS )OR ANN(LMENT (+ou shou ' %e " !"rt+ to the c"se)

!? 6-trinsic 'raud e1ists when there is a


fraudulent act committed b* the prevailing part* outside the trial of the case7 whereb* the defeated part* was prevented from presenting full* his side of the case b* deception practiced on him b* the prevailing part*. "? 7ac! of $urisdiction refers to either lack of %urisdiction over the person of the defendant or over the sub%ect matter of the claim. ,ERIOD TO )ILE A/TION :f based on 6-trinsic 'raud action must be filed within four >'? *ears from its discover* :f based on 7ac! of $urisdiction before it is barred b* laches or estoppels E))E/TS O) .(D+MENT O) ANN(LMENT

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!? 3n 6-trinsic 'raud
a? 4he court7 upon motion ma* order the trial court to tr* the case as if a motion for new trial had been granted. b? 4he prescriptive period shall not be suspended if the e1trinsic fraud is attributable to the plaintiff in the original action. "? 3n the ground of 7ac! of $urisdiction a? 4he ,uestioned %udgment7 order or resolution shall be set aside and rendered null and void. 4he nullit* shall be without pre%udice to the refiling of the original action in the proper court. b? 4he prescriptive period to re-file shall be deemed suspended from the filing of such original action until the finalit* of the %udgment of annulment. /OLLATERAL ATTA/8 O) .(D+MENTS A collateral attack is made when7 in another action to obtain a different relief7 an attack on the %udgment is made as an incident in said action. 4his is proper onl* when the %udgment7 on its face7 is null and void7 as where it is patent that the court which rendered said %udgment has no %urisdiction. E#"$! esE A petition for certiorari under *u e ;5 is a direct attack. :t is filed primaril* to have an order annulled. An action for annulment of a %udgment is likewise a direct attack on a %udgment. A motion to dismiss a complaint for collection of a sum of mone* filed b* a corporation against the defendant on the ground that the plaintiff has no legal capacit* to use is a collateral attack on the corporation. A motion to dismiss is incidental to the main action for sum of mone*. :t is not filed as an action intended to attack the legal e1istence of the plaintiff. E*E/(TION? SATIS)A/TION AND E))E/T O) .(D+MENTS ;R%$ 17= :ssuance of the writ is ministerial 8ranting of the writ is %udicial DI))EREN/E BETWEEN )INALIT' O)

.(D+MENT )OR ,(R,OSE O) A,,EALH )OR ,(R,OSES O) E*E/(TION 5or purposes of appeal7 an order is final if it disposes of the action as opposed to an interlocutor* order which leaves something to be done in the trial court with respect to the merits of the case. 5or purposes of e1ecution7 an order is final or e1ecutor* after the lapse of the reglementar* period to appeal and no such appeal has been perfected. W>EN E*E/(TION S>ALL ISS(EH E*E/(TION AS A MATTER O) RI+>T ;SE/& 1= 21ecution is a matter of right upon the e1piration of the period to appeal and no appeal was perfected from a %udgment or order that disposes of the action or proceeding. 3nce a %udgment becomes final and e1ecutor*7 the prevailing part* can have it e1ecuted as a matter of right7 and the issuance of a writ of e1ecution becomes the ministerial dut* of the court compellable b* mandamus e1cept in certain cases7 as when subse,uent events would render e1ecution of %udgment un%ust. /udgments and orders become final and e1ecutor b* operation of law and not b* %udicial declaration. 4he trial court need not even pronounce the finalit* of the order as the same becomes final b* operation of law. :ts finalit* becomes a fact when the reglementar* period for appeal lapses7 and no appeal is perfected within such period. 21ecution is a matter or right7 e1cept in the following casesE a? <here %udgment turns out to be incomplete or conditional9 b? /udgment is novated b* the parties9 c? 2,uitable grounds >i.e.7 change in the situation of the partiesSsupervening fact doctrine? d? 21ecution is en%oined >i.e.7 petition for relief from %udgment or annulment of %udgment with 4R3 or writ of preliminar* in%unction?9 e? /udgment has become dormant9 or f? 21ecution is un%ust or impossible. DIS/RETIONAR' E*E/(TION ;SE/& 2= J e1ecution pending appeal :t constitutes an e1ception to the general rule that a %udgment cannot be e1ecuted before the

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lapse of the period for appeal or during the pendenc* of an appeal. Bnder Sec. 1, *u e 397 e1ecution shall issue onl* as a matter of right upon a %udgment or final order that finall* disposes of the action or proceeding upon the e1ecution of the period to appeal therefrom if no appeal has been dul* perfected. A discretionar* e1ecution is called Mdiscretionar*N precisel* because it is not a matter of right. 4he e1ecution of a %udgment under this concept is addressed to the discretionar* power of the court and cannot be insisted upon but simpl* pra*ed and hoped for because a discretionar* e1ecution is not a matter of right. Re,uisites for discretionar* e1ecutionE !? 4here must be a motion filed b* the prevailing part* with notice to the adverse part*9 "? 4here must be a hearing of the motion for discretionar* e1ecution9 &? 4here must be good reasons to %ustif* the discretionar* e1ecution9 and '? 4he good reasons must be stated in a special order (Sec. 2, *u e 39). >OW A .(D+MENT IS E*E/(TED ;SE/& 2= /udgments in actions for in%unction7 receivership7 accounting and support7 and such other %udgments as are now or ma* hereafter be declared to be immediatel* e1ecutor*7 shall be enforceable after their rendition and shall not be sta*ed b* an appeal taken therefrom7 unless otherwise ordered b* the trial court. 3n appeal7 the appellate court in its discretion ma* make an order suspending7 modif*ing7 restoring or granting the in%unction7 receivership7 accounting7 or award of support. 4he sta* of e1ecution shall be upon such terms as to bond or otherwise as ma* be considered proper for the securit* or protection of the rights of the adverse part*. /udgments that ma* be altered or modified after becoming final and e1ecutor*E !? 5acts and circumstances transpire which render its e1ecution impossible or un%ust9 "? Support9 &? :nterlocutor* %udgment. E*E/(TION B' MOTION OR B' INDE,ENDENT A/TION ;SE/& 4=

a? 3nce revived7 then *ou can file a motion for e1ecution b? 21ecution b* $34:3# ma* be had if the enforcement of the %udgment is sought within ( *ears from the date of its entr*. c? 21ecution b* :#D2 2#D2#4 AC4:3# is when the ( *ear period has lapsed from the entr* of %udgment and before it is barred b* the statute of limitations. 4his action to revive the %udgment must be filed within !D *ears from the date the %udgment became final. ISS(AN/E AND /ONTENTS O) A WRIT O) E*E/(TION ;SE/& 6= 4his is onl* upon motion and its lifetime is ( *ears9 as a rule7 it is issued b* the court of original %urisdiction 4he writ of e1ecution shallE !? issue in the name of the Republic of the hilippines from the court which granted the motion9 "? state the name of the court7 the case number and title7 the dispositive part of the sub%ect %udgment or order9 and &? re,uire the S02R:55 (shou ' $"9e " re!ort e6er+ 3. '"+s) or other proper officer to whom it is directed to enforce the writ according to its term7 in the manner hereinafter providedE a? :f the e1ecution be against the propert* of the %udgment obligor7 to satisf* the %udgment7 with interest7 out of the real or personal propert* of such %udgment obligor9 b? :f it be against real or personal propert* in the hands of personal representatives7 heirs7 devisees7 legatees7 tenants7 or trustees of the %udgment obligor7 to satisf* the %udgment7 with interest7 out of such propert*9 c? :f it be for the sale of real or personal propert*7 to sell such propert*7 describing it7 and appl* the proceeds in conformit* with the %udgment7 the material parts of which shall be recited in the writ of e1ecution9 d? :f it be for the deliver* of the possession of real or personal propert*7 to deliver the possession of the same7 describing it7 to the part* entitled thereto7 and to satisf* an*

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costs7 damages7 rents7 or profits covered b* the %udgment out of the personal propert* of the person against whom it was rendered7 and if sufficient personal propert* cannot be found7 then out of the real propert*9 and e? :n all cases7 the writ of e1ecution shall specificall* state the amount of the interest7 costs7 damages7 rents7 or profits due as of the date of the issuance of the writ7 aside from the principal obligation under the %udgment. 5or this purpose7 the motion for e1ecution shall specif* the amounts of the foregoing reliefs sought b* the movants. E*E/(TION O) .(D+MENT )OR MONE' ;SE/& 7=

E*E/(TION O) .(D+MENT )OR S,E/I)I/ A/TS ;SE/& 10= :f the %udgment re,uires a person to perform a specific act7 said act must be performed but if the part* fails to compl* within the specified time7 the court ma* direct the act to be done b* someone at the cost of the disobedient part* and the act when so done shall have the effect as if done b* the part* :f the %udgment directs a conve*ance of real or personal propert*7 and said propert* is in the hilippines7 the court in lieu of directing the conve*ance thereof7 ma* b* an order divest the title of an* part* and vest it in others7 which shall have the force and effect of a conve*ance e1ecuted in due form of law. E*E/(TION O) S,E/IAL .(D+MENTS ;SE/& 11= <hen a %udgment re,uires the performance of an* act other7 a certified cop* of the %udgment shall be attached to the writ of e1ecution and shall be served b* the officer upon the part* against whom the same is rendered7 or upon an* other person re,uired thereb*7 or b* law7 to obe* the same7 and such part* or person ma* be punished for contempt if he disobe*s such %udgment. E))E/T O) LEV' ON T>IRD ,ERSONS 4he lev* on e1ecution shall create a lien in favor of the %udgment obligee over the right7 title and interest of the %udgment obligor in such propert* at the time of the lev*7 sub%ect to liens and encumbrances then e1isting. ,RO,ERTIES E*EM,T )ROM E*E/(TION ;SE/& 11= 2RC2 4 as otherwise e1pressl* provided b* law7 the following propert*7 and no other7 shall be e#e$!t fro$ e#ecution0 !? 4he %udgment obligorLs famil* home as provided b* law7 or the homestead in which he resides7 and the land necessaril* used in connection therewith9 "? 3rdinar* tools and implements personall* used b* him in his trade7 emplo*ment7 or livelihood9 &? 4hree horses7 or three cows7 or three carabaos7 or other beasts of burden7 such as the %udgment obligor ma* select necessaril* used b* him in his ordinar* occupation9

a? 8mmediate payment on demand 9 4he


officer enforcing the writ shall demand from the %udgment obligor the immediate pa*ment of the full amount stated in the %udgment including the lawful fees in cash7 certified check pa*able to the %udgment oblige or "n+ other for$ of !"+$ent "cce!t"% e to him (Sec. 9). the sheriff is re,uired to first make a demand on the obligor for the immediate pa*ment of the full amount stated in the writ of e1ecution

b? &atisfaction by levy 9 :f the %udgment


obligor cannot pa* all or part of the obligation in cash7 certified check or other mode of pa*ment7 the officer shall lev* upon the properties of the %udgment obligor. 4he %udgment obligor shall have the option to choose which propert* or part thereof ma* be levied upon. Should he fail to e1ercise the option7 the officer shall first lev* on the personal properties7 if an*7 and then on the real properties if the personal properties are insufficient to answer for the personal %udgment but the sheriff shall sell onl* so much of the propert* that is sufficient to satisf* the %udgment and lawful fees

c? :arnishment of debts and credits 9


4he officer ma* lev* on the debts due the %udgment obligor including bank deposits7 financial interests7 ro*alties7 commissions and other personal propert* not capable of manual deliver* in the possession or control of the third persons.

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'? 0is necessar* clothing and articles for ordinar* personal use7 e1cluding %ewelr*9 (? 0ousehold furniture and utensils necessar* for housekeeping7 and used for that purpose b* the %udgment obligor and his famil*7 such as the %udgment obligor ma* select7 of a value not e1ceeding !DD7DDD pesos. )? rovisions for individual or famil* use sufficient for four months9 +? 4he professional libraries and e,uipment of %udges7 law*ers7 ph*sicians7 pharmacists7 dentists7 engineers7 surve*ors7 clerg*men7 teachers7 and other professionals7 not e1ceeding &DD7DDD pesos9 -? 3ne fishing boat and accessories not e1ceeding the total value of !DD7DDD pesos owned b* a fisherman and b* the lawful use of which he earns his livelihood9 .? So much of the salaries7 wages7 or earnings of the %udgment obligor for his personal services with ' months preceding the lev* as are necessar* for the support of his famil*9 !D? Lettered gravestones9 !!? $onies7 benefits7 privileges7 or annuities accruing or in an* manner growing out of an* life insurance9 !"? 4he right to receive legal support7 or mone* or propert* obtained as such support7 or an* pension or gratuit* from the government9 and !&? roperties speciall* e1empted b* law (Sec. 13, *u e 39). :f the propert* is the sub%ect of e1ecution because of a %udgment for the recover* of the price or upon %udgment of foreclosure of a mortgage upon the propert*7 the propert* is not e1empt from e1ecution. ,RO/EEDIN+S W>ERE ,RO,ERT' IS /LAIMED B' T>IRD ,ERSONS ;SE/& 14= :f the propert* levied on is claimed b* an* person other than the %udgment obligor or his agent7 the officer shall not be bound to keep the propert*7 unless such %udgment obligee7 on demand of the officer7 files a bond approved b* the court to indemnif* the third-part* claimant in a sum not less than the value of the propert* levied on. 4he officer shall not be liable for damages for the taking or keeping of the propert*7 to an* thirdpart* claimant if such bond is filed. Re,uisites for a claim b* a third personE a? 4he propert* is levied9 b? 4he claimant is a person other than the %udgment obligor or his agent9

c? $akes an affidavit of his title thereto or right to the possession thereof stating the grounds of such right or title9 and d? Serves the same upon the officer making the lev* and the %udgment obligee. IN RELATION TO T>IRD ,ART' /LAIM IN ATTA/>MENT AND RE,LEVIN Remedies available to a third person not part* to the action but whose propert* is the sub%ect of e1ecutionE a= TER/ERIA B* making an affidavit of his title thereto or his right to possession thereof7 stating the grounds of such right or title. 4he affidavit must be served upon the sheriff and the attaching part* (Sec. 18, *u e 5:). Bpon service of the affidavit upon him7 the sheriff shall not be bound to keep the propert* under attachment e1cept if the attaching part* files a bond approved b* the court. 4he sheriff shall not be liable for damages for the taking or keeping of the propert*7 if such bond shall be filed.

b? E*/L(SION OR RELEASE O) ,RO,ERT'


Bpon application of the third person through a motion to set aside the lev* on attachment7 the court shall order a summar* hearing for the purpose of determining whether the sheriff has acted rightl* or wrongl* in the performance of his duties in the e1ecution of the writ of attachment. 4he court ma* order the sheriff to release the propert* from the erroneous lev* and to return the same to the third person. :n resolving the application7 the court cannot pass upon the ,uestion of title to the propert* with an* character of finalit* but onl* insofar as ma* be necessar* to decide if the sheriff has acted correctl* or not. c= INTERVENTION 4his is possible because no %udgment has *et been rendered and under the rules7 a motion for intervention ma* be filed an* time before the rendition of the %udgment b* the trial court (Sec. 2, *u e 19).

d? A//ION REINVINDI/ATORIA

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4he third part* claimant is not precluded


b* Sec. 18, *u e 5: from vindicating his claim to the propert* in the same or in a separate action. 0e ma* file a separate action to nullif* the lev* with damages resulting from the unlawful lev* and sei@ure. 4his action ma* be a totall* distinct action from the former case. R(LES ON REDEM,TION W>AT MA' BE REDEEMEDI 4he right of redemption is available onl* to real properties. <hen personal properties are sold in e1ecution their sale is absolute and no right of redemption ma* be e1ercised. W>O MA' REDEEMI a? /udgment obligor7 or his successor in interest in the whole or an* part of the propert*9 b? Redemptioner J a creditor having a lien b* virtue of an attachment7 %udgment or mortgage on the propert* sold7 or on some part thereof7 subse,uent to the lien under which the propert* was sold. W>EN TO REDEEMI a? B* the %udgment obligor - within ! *ear from the date of the registration of the certificate of sale. b? B* the redemptioner - within ! *ear from the date of the registration of the certificate of sale if he is the first redemptioner7 or c? <ithin )D da*s after the last redemption if he is a subse,uent redemptioner7 provided that the %udgment debtor has not e1ercised his right of redemption.

&. An* amount of assessments or ta1es which the purchaser ma* have paid thereon after purchase7 and interest on such last named amount at the same rate. :f the purchaser be also a creditor having a prior lien to that of the redemptioner7 other than the %udgment under which such purchase was made7 the amount of such other lien7 with interest. 9= By t! r # m-tion r !. Amount paid on the last redemption9 ". "U interest thereon &. An* amount of assessments or ta1es which the last previous redemptioner paid after the redemption b* him with interest on such last-named amount9 '. Amount of an* liens held b* the last redemptioner prior to his own7 with interest. 8enerall* in %udicial foreclosure sale7 there is no right of redemption7 but onl* e,uit* of redemption. :n sale of estate propert* to pa* off debts of the estate7 there is no redemption at all. 3nl* in e1tra%udicial foreclosure sale and sale on e1ecution is there the right of redemption. :f no redemption be made within one >!? *ear from the date of the registration of the certificate of sale7 the purchaser is entitled to a conve*ance and possession of the propert*9 or7 if so redeemed whenever si1t* >)D? da*s have elapsed and no other redemption has been made7 and notice thereof given7 and the time for redemption has e1pired7 the last redemptioner is entitled to the conve*ance and possession. Bpon the e1piration of the right of redemption7 the purchaser or redemptioner shall be substituted to and ac,uire all the rights7 title7 interest and claim of the %udgment obligor to the propert* as of the time of the lev*. 4he possession of the propert* shall be given to the purchaser or last redemptioner b* the same officer unless a third part* is actuall* holding the propert* adversel* to the %udgment obligor. E*AMINATION O) .(D+MENTS OBLI+OR W>EN .(D+MENT IS (NSATIS)IED ;SE/& 14= <hen the return of a writ of e1ecution issued against propert* of a %udgment obligor7 or an* one of several obligors in the same %udgment7

:n all cases the %udgment obligor shall


have the entire period of one >!? *ear from the date of the registration of the sale to redeem the propert*. If the &u'3$ent o% i3or re'ee$s, no further re'e$!tion is " o)e' "n' he is restore' to his est"te. REDEM,TION ,RI/E a= By t! @%#gm nt o9$igor !. urchase price ". !U interest thereon up to the time of redemption

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shows that the %udgment remains unsatisfied7 in whole or in part7 the %udgment obligee7 at an* time after such return is made7 shall be entitled to an order from the court which rendered the said %udgment7 re,uiring such %udgment obligor to appear and be e1amined concerning his propert* and income before such court or before a commissioner appointed b* it7 at a specified time and place9 and proceedings ma* thereupon be had for the application of the propert* and income of the %udgment obligor towards the satisfaction of the %udgment. But no %udgment obligor shall be so re,uired to appear before a court or commissioner outside the province or cit* in which such obligor resides or is found. E*AMINATION O) OBLI+OR O) .(D+MENT OBLI+OR ;SE/& 15= <hen the return of a writ of e1ecution against the propert* of a %udgment obligor shows that the %udgment remains unsatisfied7 in whole or in part7 and upon proof to the satisfaction of the court which issued the writ7 that person7 corporation7 or other %uridical entit* has propert* of such %udgment obligor or is indebted to him7 the court ma*7 b* an order7 re,uire such person7 corporation7 or other %uridical entit*7 or an* officer or member thereof7 to appear before the court or a commissioner appointed b* it7 at a time and place within the province or cit* where such debtor resides or is found7 and be e1amined concerning the same. 4he service of the order shall bind all credits due the %udgment obligor and all mone* and propert* of the %udgment obligor in the possession or in control of such person7 corporation7 or %uridical entit* from the time of service9 and the court ma* also re,uire notice of such proceedings to be given to an* part* to the action in such manner as it ma* deem proper. E))E/T O) .(D+MENT OR )INAL ORDERSC RES .(DI/ATA ;SE/& 25= :n case of a %udgment or final order against a specific thing7 or in respect to the probate of a will7 or the administration of the estate of a deceased person7 or in respect to the personal7 political7 or legal condition or status of a particular person or his relationship to another7 the %udgment or final order is conclusive upon the title to the thing7 the will or administration7 or the condition7 status or relationship of the person9 however7 the probate of a will or granting

of letters of administration shall onl* be prima facie evidence of the truth of the testator or intestate9 :n other cases7 the %udgment or final order is7 with respect to the matter directl* ad%udged or as to an* other matter that could have been raised in relation thereto7 conclusive between the parties and their successors in interest b* title subse,uent to the commencement of the action or special proceeding7 litigating for the same thing and under the same title and in the same capacit*9 and :n an* other litigation between the same parties or their successors in interest7 that onl* is deemed to have been ad%udged in a former %udgment or final order which appears upon its face to have been so ad%udged7 or which was actuall* and necessaril* included therein or necessar* thereto. EN)OR/EMENT AND E))E/T O) )OREI+N .(D+MENTS OR )INAL ORDERS ;SE/& 26= !? :n case of a %udgment or final order upon a specific thing7 the %udgment or final order is conclusive upon the title to the thing9 and "? :n case of a %udgment or final order against a person7 the %udgment or final order is presumptive evidence of a right as between the parties and their successors in interest b* a subse,uent title. :n either case7 the %udgment or final order ma* be repelled b* evidence of a want of %urisdiction7 want of notice to the part*7 collusion7 fraud7 or clear mistake of law or fact. A foreign %udgment on the mere strength of its promulgation is not *et conclusive7 as it can be annulled on the grounds of want of %urisdiction7 want of notice to the part*7 collusion7 fraud7 or clear mistake of law or fact. :t is likewise recogni@ed in hilippine %urisprudence and international law that a foreign %udgment ma* be barred from recognition if it runs counter to public polic*.

,ROVISIONAL REMEDIES
41=

;R%$ s 35<

NAT(RE O) ,ROVISIONAL REMEDIES

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rovisional remedies are temporar*7 au1iliar*7 and ancillar* remedies available to a litigant for the protection and preservation of his rights while the main action is pending. 4he* are writs and processes which are not main actions and the* presuppose the e1istence of a principal action. rovisional remedies are resorted to b* litigants for an* of the following reasonsE !? 4o preserve or protect their rights or interests while the main action is pending9 "? 4o secure the %udgment9 &? 4o preserve the status ,uo9 or '? 4o preserve the sub%ect matter of the action. ,ro0isiona$ r m #i s s- ci:i # %n# r t! r%$ s ar C !. reliminar* attachment (*u e 5:); ". reliminar* in%unction (*u e 5<); &. Receivership (*u e 59); '. Replevin (*u e ;.); and (. Support pendent lite (*u e ;1). .(RISDI/TION OVER ,ROVISIONAL REMEDIES 4he court which grants or issues a provisional remed* is the court which has %urisdiction over the main action. 2ven an inferior court ma* grant a provisional remed* in an action pending with it and within its %urisdiction. ,RELIMINAR' ATTA/>MENT ;R(LE 35= reliminar* attachment is a provisional remed* issued upon order of the court where an action is pending to be levied upon the propert* of the defendant so the propert* ma* be held b* the sheriff as securit* for the satisfaction of whatever %udgment ma* be rendered in the. <hen availed of and is granted in an action purel* in personam7 it converts the action to one that is ,uasi in rem. :n an action in rem or ,uasi in rem7 %urisdiction over the res is sufficient. /urisdiction over the person of the defendant is not re,uired. 4here is no separate action called preliminar* attachment. :t is availed of in relation to a principal action. reliminar* attachment is designed toE

!? Sei@e the propert* of the debtor before final %udgment and put the same in custodial egis even while the action is pending for the satisfaction of a later %udgment. "? 4o enable the court to ac,uire %urisdiction over the res or the propert* sub%ect of the action in cases where service in person or an* other service to ac,uire %urisdiction over the defendant cannot be affected. 4hree stages in the grant of the reliminar* Attachment !? 4he court issues the order granting the application "? 4he writ of attachment issues pursuant to the order granting the writ &? 4he writ if implemented 5or the " initial stages7 it is not necessar* that %urisdiction over the person of the defendant be first obtained. 0owever7 once the implementation of the writ commences7 the court must have ac,uired %urisdiction over the defendant for without such %urisdiction7 the court has no power or authorit* to act in an* manner against the defendant. ,RELIMINAR' ATTA/>MENT >AS T>REE T',ES >a? ,RELIMINAR' ATTA/>MENT J one issued at the commencement of the action or at an* time before entr* of %udgment as securit* for the satisfaction of an* %udgment that ma* be recovered. 0ere the court takes custod* of the propert* of the part* against whom attachment is directed. >b? +ARNIS>MENT J plaintiff seeks to sub%ect either the propert* of defendant in the hands of a third person >garnishee? to his claim or the mone* which said third person owes the defendant. 8arnishment does not involve actual sei@ure of propert* which remains in the hands of the garnishee. :t simpl* impounds the propert* in the garnisheeCs possession and maintains the status ,uo until the main action is finall* decided. 8arnishment proceedings are usuall* directed against personal propert*7 tangible or intangible and whether capable of manual deliver* or not. >c? LEV' ON E*E/(TION J writ issued b* the court after %udgment b* which the propert* of the %udgment obligor is taken into custod* of the court before the sale of the propert* on e1ecution for the satisfaction of a final %udgment.

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:t is the preliminar* step to the sale on e1ecution of the propert* of the %udgment debtor. 4he grant of the remed* is addressed to the discretion of the court whether or not the application shall be given full credit is discretionar* upon the court. :n determining the propriet* of the grant7 the court also considers the principal case upon which the provisional remed* depends. +RO(NDS )OR ISS(AN/E O) WRIT O) ATTA/>MENT At the commencement of the action or at an* time before entr* of %udgment7 a plaintiff or an* proper part* ma* have the propert* of the adverse part* attached as securit* for the satisfaction of an* %udgment that ma* be recovered in the following casesE !? :n an action for the recover* of a specified amount of mone* or damages7 other than moral and e1emplar*7 on a cause of action arising from law7 contract7 ,uasicontract7 delict or ,uasi-delict against a part* who is about to depart from the hilippines with intent to defraud his creditors9 "? :n an action for mone* or propert* embe@@led or fraudulentl* misapplied or converted to his own use b* a public officer7 or an officer of a corporation7 or an attorne*7 factor7 broker7 agent or clerk7 in the course of his emplo*ment as such7 or b* an* other person in a fiduciar* capacit*7 or for a willful violation of dut*9 &? :n an action to recover the possession of propert* un%ustl* or fraudulentl* taken7 detained or converted7 when the propert*7 or an* part* thereof7 has been concealed7 removed7 or disposed of to prevent its being found or taken b* the applicant or an authori@ed person9 '? :n an action against a part* who has been guilt* of a fraud in contracting the debt or incurring the obligation upon which the action the action is brought7 or in the performance thereof9 (? :n an action against a part* who has removed or disposed of his propert*7 or is about to do so7 with intent to defraud his creditors9 or )? :n an action against a part* who does not reside and is not found in the hilippines7 or on whom summons ma* be served b* publication (Sec. 1).

REA(ISITES 4he issuance of an order6writ of e1ecution re,uires the followingE !? 4he case must be an* of those where preliminar* attachment is proper9 "? 4he applicant must file a motion whether e# !"rte or )ith notice "n' he"rin39 &? 4he applicant must show b* affidavit (un'er o"th) that there is no sufficient securit* for the claim sought to be enforced9 that the amount claimed in the action is as much as the sum of which the order is granted above all counterclaims9 and '? 4he applicant must post a bond e1ecuted to the adverse part*. 4his is called an A44AC0$2#4 B3#D7 which answers for all damages incurred b* the part* against whom the attachment was issued and sustained b* him b* reason of the attachment. ISS(AN/E AND /ONTENTS O) ORDER O) ATTA/>MENT An order of attachment ma* be issued either e1 parte or upon motion with notice and hearing b* the court in which the action is pending7 or b* the CA or the SC. :t ma* issue e# !"rte and even before the summons is served upon the defendant. 0owever7 the writ ma* not be enforced and validl* implemented unless preceded or simultaneousl* served with the summons7 a cop* of the complaint7 application for attachment7 the order of attachment and the attachment bond. A))IDAVIT AND BOND 4he order of attachment shall be granted onl* when it appears b* the affidavit of the applicant that the re,uisites for a grant of attachment are present. 4he applicant must thereafter give a bond e1ecuted to the adverse part* in the amount fi1ed b* the court in its order granting the issuance of the writ7 conditioned that the latter will pa* all the costs which ma* be ad%udged to the adverse part* and all damages which he ma* sustain b* reason of the attachment7 if the court shall finall* ad%udge that the applicant was not entitled thereto

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R(LE ON ,RIOR OR /ONTEM,ORANEO(S SERVI/E O) S(MMONS

2nforcement of the writ or preliminar*

attachment must be preceded b* contemporaneousl* accompanied b* the service of summons7 cop* of the complaint7 application and affidavit of the attachment and the bond in favor of the adverse part*. 4he failure to ac,uire %urisdiction over the person of the adverse part* shall render the implementation of the writ void. 21ceptions to the re,uirementE !? <here the summons could not be served personall* or b* substituted service despite diligent efforts9 "? 4he defendant is a resident of the hilippines who is temporaril* out of the countr*9 &? 4he defendant is a non-resident9 or '? 4he action is one in rem or ,uasi in rem (Sec. 5). MANNER O) ATTA/>IN+ REAL AND ,ERSONAL ,RO,ERT' 4he sheriff enforcing the writ shall without dela* and with all reasonable diligence attach7 to await %udgment and e1ecution in the action7 onl* so much of the propert* in the hilippines of the part* against whom the writ is issued7 not e1empt from e1ecution7 as ma* be sufficient to satisf* the applicantTs demand. :n attaching R2AL R3 2R4H7 or growing crops thereon or an* interest therein7 a cop* of the order shall be filed with the registr* of deeds along with a description of the propert* attached and b* leaving a cop* of such order with the occupant of the propert*7 if an* or such other person or his agent if found within the province. :n attaching 2RS3#AL R3 2R4H capable of manual deliver* - b* taking and safel* keeping it in his custod* after issuing the corresponding receipt therefor. As to S43C=S 3R S0AR2S7 or an interest thereon7 b* leaving with the president or managing agent of the compan*7 a cop* of the writ7 and a notice stating that the stock or interest of the part* against whom the attachment is issued is attached in pursuance of such writ. D2B4S A#D CR2D:4S7 including bank deposits7 financial interest7 ro*alties7 commissions and

other personal propert* not capable of manual deliver* shall be attached b* leaving with the person owing such debts7 or in possession or control of such credits or other personal propert*7 or with his agent7 a cop* of the writ7 and notice that such properties are attached. As to interest of the part* against whom attachment is issued in propert* B2L3#8:#8 43 402 2S4A42 35 402 D2C2D2#4 are attached b* giving a cop* of the writ and notice to the e1ecutor or administrator and the office of the clerk of court where is the estate is being settled. :f the propert* to be attached is :# CBS1F4IA 5EGIS7 a cop* of the writ shall be filed with the proper court or ,uasi-%udicial agenc*7 and notice of the attachment served upon the custodian of such propert*. W>EN ,RO,ERT' ATTA/>ED IS /LAIMED B' T>IRD ,ERSON 4he third part* ma* resort to an* of the following remedies which are cumulative and thus could be resorted independentl* and separatel* from the othersE a? 0e ma* avail of the remed* of terceri" b* making an affidavit of his title thereto or his right to possession thereof7 stating the grounds of such right or title. 4he affidavit must be served upon the sheriff and the attaching part*. 4he sheriff shall not be bound to keep the propert* under attachment e1cept if the attaching part* files a bond approved b* the court. b? 4he third person ma* invoke the courtCs authorit* in the same case and move for a summar* hearing on his claim to decide if the sheriff has acted correctl* or not. c? 4he third part* ma* file a separate action to nullif* the lev* with damages resulting from the unlawful lev* and sei@ure. 4his action ma* be totall* distinct from the case in which the attachment was issued. >OW TO ,REVENT T>E ATTA/>MENT 4he part* whose propert* is sought to be attached7 m* prevent the attachment b* doing either of two thingsE !? B* depositing with the court an amount e,ual to the value of the propert* to be attached9 or "? B* giving a counter bond e1ecuted to the applicant7 in an amount e,ual to the bond posted b* the latter to secure the attachment.

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DIS/>AR+E O) ATTA/>MENT AND T>E /O(NTER<BOND :f the attachment has alread* been enforced7 the part* whose propert* has been attached ma* file a $34:3# to discharge the attachment. 4his motion shall be with notice and hearing. After due notice and hearing7 the court shall discharge the attachment if the movants makes a CAS0 D2 3S:4 or files a C3B#42R-B3#D e1ecuted to the attaching part* with the clerk of court where the application is made. Attachment ma* likewise be discharged without the need for filing of a counter-bond. 4his is possible when the part* whose propert* has been attached files a motion to set aside or discharge the attachment and during the hearing of the motion7 he proves thatE !? 4he attachment was improperl* or irregularl* issued or enforced9 or "? 4he bond of the attaching creditor is insufficient9 or &? 4he attachment is e1cessive and must be discharged as to the e1cess9 or '? 4he propert* is e1empt from e1ecution7 and as such is also e1empt from preliminar* attachment. M:mproperl*N >e.g. writ of attachment was not based on the grounds in Sec. !? M:rregularl*N >e.g. writ of attachment was e1ecuted without previous or contemporaneous service of summons? SATIS)A/TION O) .(D+MENT O(T O) ,RO,ERT' ATTA/>ED :f %udgment is rendered in favor of the attaching part* and e1ecution issued7 the sheriff ma* cause the %udgment to be satisfied out of the propert* attached7 if it be sufficient for that purpose. ,RELIMINAR' IN.(N/TION ;R(LE 36= Can be provisional remed* and can also an action DE)INITIONS AND DI))EREN/ESC ,RELIMINAR' IN.(N/TION AND TEM,ORAR' RESTRAININ+ ORDER A preliminary in#unction is an order granted at an* stage of an action or proceeding prior to the %udgment or final order7 re,uiring a part* or a

court7 agenc* or a person to either refr"in >prohibitor*? from or to !erfor$ >mandator*? a particular act or acts during the pendenc* of the action. 4emporar* restraining order >4R3? is issued is an order to maintain the status ,uo between and among the parties until the determination of the pra*er for a writ of preliminar* in%unction. 4he status ,uo is the last7 actual7 peaceable and uncontested situation which precedes a controvers*. 4he %udge ma* issue a 4R3 with a limited life of "D da*s from date of issue. :f before the e1piration of the "D da* period7 the application for preliminar* in%unction is denied7 the 4R3 would be deemed automaticall* vacated. :f no action is taken b* the %udge within the "D da* period7 the 4R3 would automaticall* e1pire on the "Dth da* b* the sheer force of law7 no %udicial declaration to that effect being necessar*. A writ of preliminar* in%unction cannot be granted without notice and hearing. A 4R3 ma* be granted e1 parte if it shall appear from facts shown b* affidavits or b* the verified application that great or irreparable in%ur* would result to the applicant before the matter can be heard on notice7 the court in which the application for preliminar* in%unction was made m* issue a 4R3 e1 parte for a period not e1ceeding "D da*s from service to the part* sought to be en%oined. REA(ISITES

!? 4here must be a verified petition7 "? 4he application must establish that he has a
right of relief or a right to be protected and that the act against which the in%unction is sought violates such right7 &? 4he applicant must establish that there is a need to restrain the commission of the continuance of the acts complained of and if not en%oined would work in%ustice to him7 '? A bond must be posted7 unless otherwise e1empted b* the court. (? 4he threatened in%ur* must be incapable of pecuniar* estimation. 8INDS O) IN.(N/TION ,RO>IBITOR' J its purpose is to prevent a person from the performance of a particular act which has not *et been performed. !? ,r $iminary J secured before the finalit* of %udgment.

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"? )ina$ J issued as a %udgment7 making the


in%unction permanent. :t perpetuall* restrains a person from the continuance or commission of an act and confirms the previous preliminar* in%unction. :t is one included in the %udgment as the relief or part of the relief granted as a result of the action7 hence7 granted onl* after trial and no bond is re,uired. MANDATOR' J its purpose is to re,uire a person to perform a particular positive act which has alread* been performed and has violated the rights of another. a? reliminar* b? 5inal Re,uisites for the issuance of mandator* preliminar* in%unction >a? 4he invasion of the right is material and substantial9 >b? 4he right of a complainant is clear and unmistakable9 >c? 4here is an urgent and permanent necessit* for the writ to prevent serious damage. W>EN WRIT MA' BE ISS(ED :t ma* be issued at an* stage prior to the %udgment or final order. +RO(NDS )OR ISS(AN/E O) ,RELIMINAR' IN.(N/TION !? 4he applicant is entitled to the relief demanded7 and the whole or part of such relief consists in restraining the commission or continuance of the act or acts complained of7 or in re,uiring the performance of an act or acts either for a limited period or perpetuall*9 or "? 4he commission7 continuance or nonperformance of the act or acts complained of during the litigation would probabl* work in%ustice to the applicant9 or &? A part*7 court7 agenc* or a person is doing7 threatening or is attempting to do7 or is procuring or suffering to be done7 some act or acts probabl* in violation of the rights of the applicant respecting the sub%ect of the action or proceeding7 and tending to render the %udgment ineffectual. +RO(NDS )OR OB.E/TION TO OR )OR T>E DISSOL(TION O) IN.(N/TION OR RESTRAININ+ ORDER

!? Bpon showing of insufficienc* of the application9 "? 3ther grounds upon affidavit of the part* or person en%oined9 &? Appears after hearing that irreparable damage to the part* or person en%oined will be caused while the applicant can be full* compensated for such damages as he ma* suffer7 and the part* en%oined files a counterbond9 '? :nsufficienc* of the bond9 (? :nsufficienc* of the suret* or sureties. D(RATION O) TRO 4he lifetime of a 4R3 is "D da*s7 which is none1tendible (A, .2/.2/.:/SC). :f it is shown that the applicant would suffer 3re"t or irre!"r"% e in&ur+ before the application for the writ of in%unction can be heard7 the court ma* issue a temporar* restraining order >4R ? e# !"rte which shall be effective for a period not e1ceeding twent* >"D? da*s from service on the part* sought to be en%oined. <ithin the said twent*-da* period7 the court must order said part* to show cause wh* the in%unction should not be granted7 determine within the same period whether or not the preliminar* in%unction shall be granted7 and accordingl* issue the corresponding order. :f the matter is of e1treme urgenc* and the applicant will suffer grave in%ustice and irreparable in%ur*7 the e1ecutive %udge of a multiple-sala court or the presiding %udge of a single sala court ma* issue e# !"rte a temporar* restraining order effective for onl* sevent*-two >+"? hours. <ithin such period7 the %udge shall conduct a summar* hearing to determine whether the temporar* restraining order shall be e1tended to "D da*s. 4he +" hours shall be included in the ma1imum "D da* period. :f a 4R3 is b* the Court of Appeals or a member thereof7 it shall be effective for si1t* >)D? da*s from notice to service part* to be en%oined. :f a 4R3 is issued b* the Supreme Court or a member thereof7 it shall be effective until further orders. BAN O) TRO OR WRIT O) IN.(N/TION IN /ASES INVOLVIN+ +OVERNMENT IN)RASTR(/T(RE ,RO.E/TSC RA 6753 #o court e1cept the SC shall issue an* or preliminar* in%unction or preliminar* mandator*

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in%unction against the government or it subdivisions7 officials or an* person or entit* whether public or private acting under the government direction7 to restrain7 prohibit or compel the following actsE !? Ac,uisition7 clearance and development of the right of wa* and6or site or location of an* government pro%ect7 "? Bidding or awarding of a contract or pro%ect of the national government7 &? Commencement7 prosecution7 e1ecution7 implementation7 operation of an* such contract or pro%ect7 '? 4ermination or rescission of an* such contract6pro%ect and (? 4he undertaking or authori@ation of an* other lawful activit* necessar* for such contract or pro%ect. An* 4R37 preliminar* in%unction and preliminar* mandator* in%unction issued in violation of the above prohibition shall be void. 21ceptions to the prohibitionE a? :n cases of e1treme urgenc*9 b? :f it involves constitutional issue9 c? 8rave in%ustice and irreparable in%ur* will arise unless a 4R3 is issued. :n one case7 the SC said that in%unction is not available to stop infrastructure pro%ects of the government including arrastre and stevedoring operations. R(LE ON ,RIOR OR /ONTEM,ORANEO(S SERVI/E O) S(MMONS IN RELATION TO ATTA/>MENT <hen an application for a writ of preliminar* in%unction or 4R3 is made in a complaint or other initiator* pleading7 the case7 if filed in a multisala court7 shall be raffled onl* after notice to and in the presence of the adverse part*. :n an* event7 such notice shall be preceded or contemporaneousl* accompanied b* a service of summons7 together with a cop* of the complaint or initiator* pleading and the applicantCs affidavit and bond7 upon the adverse part* in the hilippines. :t is not available where a? the summons could not be served personall* or b* substituted service despite diligent efforts or

b? where the adverse part* is a resident of the hilippines temporaril* absent therefrom or is a non-resident thereof. S(MMAR'BSTA+ES O) IN.(N/TION ;1= SEVENT'<TWO ;52= >O(R TEM,ORAR' RESTRAININ+ ORDER a? :f the matter is of e1treme urgenc* and the applicant will suffer grave in%ustice and irreparable in%ur*9 b? :ssued b* e1ecutive %udge of a multi-sala court or the presiding %udge of a single-sala court9 c? 4hereafter must i. Serve summons and other documents ii. Conduct summar* hearing to determine whether the 4R3 shall be e1tended to "D da*s until the application for preliminar* in%unction can be heard. ;2= TWENT' ;20= DA' TRO a? :f it shall appear from the facts shown b* affidavits or b* the verified application that great or irreparable in%ur* would result to the applicant before the matter can be heard on notice9 b? :f application is included in initiator* pleadingE !. #otice of raffle shall be preceded7 or contemporaneousl* accompanied7 b* service of summons7 together with a cop* of the complaint or initiator* pleading and the applicantLs affidavit and bond7 upon the adverse part* in the hilippines9 ". Raffled onl* after notice to and in the presence of the adverse part* or the person to be en%oined. c? :ssued with summar* hearing >to determine whether the applicant will suffer great or irreparable in%ur*? within "' hours after sheriffLs return of service and6or records are received b* the branch selected b* raffle9 d? <ithin "D-da* period7 the court must order said person to show cause wh* the in%unction should not be granted7 and determine whether or not the preliminar* in%unction shall be granted7 and accordingl* issue the corresponding order9 e? :ncluding the original +" hours7 total effectivit* of 4R3 shallE

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!. #ot e1ceed "D da*s7 if issued b* an R4C or $4C9 ". #ot e1ceed )D da*s7 if issued b* the CA or a member thereof9 &. Bntil further orders7 if issued b* the SC. f? 4R3 is automaticall* vacated upon e1piration of the period and without granting of preliminar* in%unction9 g? 2ffectivit* is not e1tendible without need of an* %udicial declaration to that effect9 h? #o court shall have authorit* to e1tend or renew the same on the same ground for which it was issued. ;1= ,RELIMINAR' IN.(N/TION a? 0earing and prior notice to the part* sought to be en%oined9 b? :f application is included in initiator* pleadingE !. #otice of raffle shall be preceded7 or contemporaneousl* accompanied7 b* service of summons7 together with a cop* of the complaint or initiator* pleading and the applicantTs affidavit and bond7 upon the adverse part* in the hilippines. ". Raffled onl* after notice to and in the presence of the adverse part* or the person to be en%oined c? Applicant posts a bond ;2= )INAL IN.(N/TION #ote that a bond is re,uired onl* in preliminar* in%unctions7 but is not re,uired in 4R3s. After lapse of the "D da* 4R37 the court can still grant a preliminar* in%unction. #ote that irreparable in%ur* is alwa*s a re,uisite in 4R3s. But in the +" hour 4R37 grave in%ustice must also be shown. :n the "D da* 4R37 the ground is great or irreparable in%ur*. <ithout a preliminar* in%unction7 a 4R3 issued b* the CA e1pires without necessit* of court action. 3nl* SC ca issue a Status Auo 3rder

Receivership is a provisional remed* wherein the court appoints a representative to preserve7 administer7 dispose of and prevent the loss or dissipation of the real or personal propert* during the pendenc* of an action. :t ma* be the principal action itself or a mere provisional remed*9 it can be availed of even after the %udgment has become final and e1ecutor* as it ma* be applied for to aid e1ecution or carr* %udgment into effect. /ASES W>EN RE/EIVER MA' BE A,,OINTED Bpon a verified application7 one or more receivers of the propert* sub%ect of the action or proceeding ma* be appointed b* the court where the action is pending or b* the Court of Appeals or b* the Supreme Court7 or a member thereof7 in the following casesE !. 4he part* appl*ing for the appointment of a receiver has an interest in the propert* or fund which is the sub%ect of the action or proceeding7 and that such propert* or fund is in danger of being lost7 or materiall* in%ured unless a receiver be appointed to administer and preserve it9 ". :n an action b* the mortgagee for the foreclosure of a mortgage that the propert* is in danger of being wasted or dissipated or materiall* in%ured7 and that its value is probabl* insufficient to discharge the mortgage debt7 or that the parties have so stipulated in the contract of mortgage9 &. After %udgment7 to preserve the propert* during the pendenc* of an appeal7 or to dispose of it according to the %udgment7 or to aid e1ecution when the e1ecution has been returned unsatisfied or the %udgment obligor refuses to appl* his propert* in satisfaction of the %udgment7 or otherwise to carr* the %udgment into effect9 '. <henever in other cases it appears that the appointment of a receiver is the most convenient and feasible means of preserving7 administering7 or disposing of the propert* in litigation. REA(ISITES !? ;erified application9 "? Appointed b* the court where the action is pending7 or b* the CA or b* the SC7 or a member thereof9 During the pendenc* of an appeal7 the appellate court ma* allow an application for the appointment of a receiver to be

RE/EIVERS>I, ;R(LE 37= Can be applied even %udgment is final and e1ecutor*

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filed in and decided b* the court of origin and the receiver appointed to be sub%ect to the control of said court. &? ApplicantCs bond conditioned on pa*ing the adverse part* all damages he ma* sustain b* the appointment of the receiver in case the appointment is without sufficient cause9 '? Receiver takes his oath and files his bond. REA(IREMENTS BE)ORE ISS(AN/E O) AN ORDER

"? R c i0 rDs Bon# >of the appointed receiver7


aside from oath? J 4o answer for receiverCs faithful discharge of his duties. 1= /o%nt r Bon# TERMINATION O) RE/EIVERS>I, <henever the court7 motu proprio or on motion of either part*7 shall determine that the necessit* for a receiver no longer e1ists7 it shall7 after due notice to all interested parties and hearing7 settle the accounts of the receiver7 direct the deliver* of the funds and other propert* in his possession to the person ad%udged to be entitled to receive them7 and order the discharge of the receiver from further dut* as such. 4he court shall allow the receiver such reasonable compensation as the circumstances of the case warrant7 to be ta1ed as costs against the defeated part*7 or apportioned7 as %ustice re,uires. Receivership shall also be terminated whenE a? its continuance is not %ustified b* the facts and circumstances of the case9 or b? court is convinced that the powers are abused. RE,LEVIN ;R(LE 40= :t is a proceeding b* which the owner or one who has a general or special propert* in the thing taken or detained seeks to recover possession in specie7 the recover* of damages being onl* incidental. Replevin ma* be a main action or a provisional remed*. As a principal action its ultimate goal is to recover personal propert* capable of manual deliver* wrongfull* detained b* a person. Bsed in this sense7 it is a suit in itself. :t is a provisional remed* in the nature of possessor* action and the applicant who seeks immediate possession of the propert* involved need not be the holder of the legal title thereto. :t is sufficient that he is entitled to possession thereof. W>EN MA' WRIT BE ISS(ED a? 4he provisional remed* of replevin can onl* be applied for before answer. b? A part* pra*ing for the recover* of possession of personal propert* ma*7 at the

!? Before issuing the order appointing a receiver


the court shall re,uire the applicant to file a bond e1ecuted to the part* against whom the application is presented7 in an amount to be fi1ed b* the court7 to the effect that the applicant will pa* such part* all damages he ma* sustain b* reason of the appointment of such receiver in case the applicant shall have procured such appointment without sufficient cause9 and "? 4he court ma*7 in its discretion7 at an* time after the appointment7 re,uire an additional bond as further securit* for such damages. +ENERAL ,OWERS O) A RE/EIVER !? 4o bring and defend7 in such capacit*7 actions in his own name "? 4o take and keep possession of the propert* in controvers* &? 4o receive rents '? 4o collect debts due to himself as receiver or to the fund7 propert*7 estate7 person7 or corporation of which he is the receiver (? 4o compound for and compromise the same )? 4o make transfer +? 4o pa* outstanding debts -? 4o divide the mone* and other propert* that shall remain among the persons legall* entitled to receive the same .? 4o do such acts respecting the propert* as the court ma* authori@e. !D? 0owever7 funds in the hands of a receiver ma* be invested onl* b* order of the court upon the written consent of all the parties to the action. #o action ma* be filed b* or against a receiver without leave of the court which appointed him. TWO ;2= 8INDS O) BONDS

!? A--$icantDs

Bon# >for appointment of receiver? J 4o pa* the damages the adverse part* ma* sustain b* reason of appointment of receiver9 and

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commencement of the action or at an* time before answer7 appl* for an order for the deliver* of such propert* to him. REA(ISITES 4he applicant must show b* his own affidavit or that of some other person who personall* knows the factsE !? A part* pra*ing for the provisional remed* must file an application for a writ of replevin. 0is application must be filed at the commencement of the action or at an* time before the defendant answers7 and must contain an affidavit particularl* describing the propert* to which he entitled of possession. "? 4he affidavit must state that the propert* is wrongfull* detained b* the adverse part*7 alleging therein the cause of the detention. :t must also state that the propert* has not been destrained or taken for ta1 assessment or a fine pursuant to law7 or sei@ed under a writ of e1ecution or preliminar* attachment7 or otherwise placed in custo'i" e3is. :f it has been sei@ed7 then the affidavit must state that it is e1empt from such sei@ure or custod*. &? 4he affidavit must state the actual market value of the propert*9 and '? 4he applicant must give a bond7 e1ecuted to the adverse part* and double the value of the propert*. A))IDAVIT AND BONDH REDELIVER' BOND Affidavit7 allegingE a? 4hat the applicant is the owner of propert* claimed7 describing it or entitled to its possession9 b? 4hat the propert* is wrongfull* detained b* the adverse part*7 alleging cause of its detention9 c? 4hat the propert* has not been distrained or taken for ta1 assessment or fine or under writ of e1ecution6attachment or placed under custo'i" e3is or if sei@ed7 that it is e1empt or should be released9 and d? 4he actual market value of the propert*. Bond7 which must be double the value of propert*7 to answer for the return of propert* if ad%udged and pa* for such sum as he ma* recover from the applicant.

:t is re,uired that the redeliver* bond be filed within the period of ( da*s after the taking of the propert*. 4he rule is $A#DA43RH. S>ERI))DS D(T' IN T>E IM,LEMENTATION O) T>E WRITH W>EN ,RO,ERT' IS /LAIMED B' T>IRD ,ART' Bpon receiving such order7 the sheriff must serve a cop* on the adverse part*7 together with a cop* of the application7 affidavit and bond7 and must take the propert* and retain it in his custod*. :f the propert* be concealed in a building or enclosure7 the sheriff must demand its deliver*7 and if it be not delivered7 he must cause the building or enclosure to be broken open and take the propert* into his possession. :f within five >(? da*s after the taking of the propert* b* the sheriff7 the adverse part* does not ob%ect to the sufficienc* of the bond or if the adverse part* so ob%ects and the court affirms its approval of the applicantTs bond or approves a new bond7 or if the adverse part* re,uires the return of the propert* but his bond is ob%ected to and found insufficient and he does not file an approved bond7 the propert* shall be delivered to the applicant. :f for an* reason the propert* is not delivered to the applicant7 the sheriff must return it to the adverse part*. A &rd part* claimant ma* vindicate his claim to the propert*7 and the applicant ma* claim damages against such &rd part*7 in the same or separate action. A claim on the indemnit* bond should be filed within !"D da*s from posting of such bond. :f the propert* taken is claimed b* a third person and make an affidavit of his title or right to the possession thereof and serves such affidavit upon the sheriff while the latter has possession of the propert* and a cop* thereof upon the applicant7 the sheriff shall not be bound to keep the propert* under replevin or deliver it to the applicant B#L2SS the applicant on demand of said sheriff7 shall file a bond approved b* the court to indemnif* the third-part* claimant in the sum not less than the value of the propert*. 4he sheriff shall not be liable for damages7 for the taking or keeping of such propert*7 to an* such third-part* claimant if such bond shall be filed.

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S,E/IAL /IVIL A/TIONS


51=

;R%$ s 42

NAT(RE O) S,E/IAL /IVIL A/TIONS Special civil actions are basicall* ordinar* civil proceedings9 what makes them special are the distinct peculiarities inherent in their ver* nature not found in ordinar* civil actions. 4he* are actions in themselves7 but possessing special matters that re,uired special procedures. 5or this reason7 these proceedings are classified as special civil actions. Sec. 1, *u e ;2 provides that rules provided for ordinar* civil actions are applicable in special civil proceedings7 which are not inconsistent with or ma* serve to supplement the provisions of the rules relating to such special civil actions. ORDINAR' /IVIL A/TIONS VERS(S S,E/IAL /IVIL A/TIONS Although both t*pes of actions are governed b* the rules for ordinar* civil actions7 there are certain rules that are applicable onl* to specific special civil actions. 4he fact that an action is sub%ect to special rules other than those applicable to ordinar* civil actions is what makes a civil action special. An ordinar* civil action must be based on a /A(SE O) A/TION. 4his means that the defendant must have performed an act or omitted to do an act in violation of the rights of another. 4hese definitions do not fit the re,uirements of a cause of action in certain special civil actions.

3rdinar* civil actions ma* be filed initiall* in either the $4C or the R4C depending upon the /BR:SD:C4:3#AL A$3B#4 3R 402 #A4BR2 of the action involved. 3n the other hand7 there are special civil actions which can onl* be filed in an $4C like the actions for forcible entr* and unlawful detainer. 4here are also special civil actions which cannot be commenced in the $4C7 foremost of which are the petitions for certiorari7 prohibition7 and mandamus. 4he ;2#B2 in ordinar* civil actions is determined b* either the residence of the parties where the action is personal or b* the location of the propert* where the action is real. 4his does not alwa*s appl* to a special civil action. <hile ordinar* civil actions when filed are denominated as complaints7 some special civil actions are not denominated as such but petitions. ;a= S- cia$ ci0i$ actions initiat # 9y :i$ing o: a , titionC !? Declarator* relief other than similar remedies9 "? Review of ad%udication of the C3$2L2C and C3A9 &? Certiorari7 prohibition and mandamus9 '? Auo warranto9 and (? Contempt ;9= S- cia$ ci0i$ actions initiat # 9y :i$ing o: a /om-$aintC !? :nterpleader9 "? 21propriation9 &? 5oreclosure of real estate mortgage9 '? artition9 and (? 5orcible entr* and unlawful detainer. .(RISDI/TION AND VEN(E 4he sub%ect matter of a petition for declarator* relief raises issues which are not capable of pecuniar* estimation and must be filed with the Regional 4rial Court. :t would be error to file the petition with the Supreme Court which has no original %urisdiction to entertain a petition for declarator* relief. INTER,LEADER ;R(LE 42= :t is a special civil action filed b* a person7 who has propert* in his possession or an obligation to render7 wholl* or partiall*7 against whom two conflicting claims are made upon the same sub%ect matter and over which he claims no

4he cause of action as defined and re,uired


of an ordinar* civil action finds no application to the special civil action of declarator* relief. :t finds no application also in a complaint for interpleader. :n this action7 the plaintiff ma* file a complaint even if he has sustained no actual transgression of his rights. :n fact7 he actuall* has no interest in the sub%ect matter of the action. 4his is not so in an ordinar* civil action.

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interest7 to compel the claimants to interplead and to litigate their conflicting claims among themselves. REA(ISITES )OR INTER,LEADER

deed7 contract7 statute7 ordinance or e1ecutive order or regulation. :t will not prosper when brought after a contract or a statute has alread* been breached or violated. :f there has alread* been a breach7 the appropriate ordinar* civil action and not declarator* relief should be filed. W>O MA' )ILE T>E A/TION !? An* person interested under a deed7 will7 contract or other written instrument or whose rights are affected b* a statute7 e1ecutive order or regulation7 ordinance or other governmental regulation ma* before breach or violation thereof7 bring an action in the R4C to determine an* ,uestion of construction or validit* arising and for a declaration of his rights or duties7 thereunder. "? 4hose who ma* sue under the contract should be those with interest under the contract like the parties7 the assignees and the heirs as re,uired b* substantive law. &? :f it be a statute7 e1ecutive order7 regulation or ordinance7 the petitioner is one whose rights are affected b* the same. 4he other parties are all persons who have or claim an* interest which would be affected b* the declaration. 4he rights of person not made parties to the action do not stand to be pre%udiced b* the declaration. REA(ISITES O) A/TION )OR DE/LARATOR' RELIE) !? 4he sub%ect matter must be a deed7 will7 contract or other written instrument7 statute7 e1ecutive order or regulation or ordinance9 "? 4he terms of said document or the validit* thereof are doubtful and re,uire %udicial construction9 &? 4here must have been no breach of said document9 '? 4here must be actual %usticiable controvers* or the ripening seeds of one >there is threatened litigation the immediate future?9 (? there must be allegation of an* threatened7 imminent and inevitable violation of petitionerCs right sought to be prevented b* the declarator* relief sought9 )? 4he controvers* is between persons whose interests are adverse9 +? 4he issue must be ripe for %udicial determination e.g. administrative remedies alread* e1hausted9 -? 4he part* seeking the relief has legal interest in the controvers*9 and .? Ade,uate relief is not available thru other means.

!? 4here must be two or more claimants with


adverse or conflicting interests to a propert* in the custod* or possession of the plaintiff9 "? 4he plaintiff in an action for interpleader has no claim upon the sub%ect matter of the adverse claims or if he has an interest at all7 such interest is not disputed b* the claimants9 &? 4he sub%ect matter of the adverse claims must be one and the same9 and '? 4he parties impleaded must make effective claims. W>EN TO )ILE <henever conflicting claims upon the same sub%ect matter are or ma* be made against a person who claims no interest whatever in the sub%ect matter7 or an interest which in whole or in part is not disputed b* the claimants7 he ma* bring an action against the conflicting claimants to compel them to interplead and litigate their several claims among themselves. DE/LARATOR' RELIE)S AND SIMILAR REMEDIES ;R(LE 41= An action for declarator* relief is brought to secure an authoritative statement of the rights and obligations of the parties under a contract or a statute for their guidance in the enforcement or compliance with the same. 4hus7 the purpose is to seek for a %udicial interpretation of an instrument or for a %udicial declaration of a personCs rights under a statute and not to ask for affirmative reliefs like in%unction7 damages or an* other relief be*ond the purpose of the petition as declared under the Rules. 4he sub%ect matter in a petition for declarator* relief is an* of the followingE a? Deed9 b? <ill9 c? Contract or other written instrument9 d? Statute9 e? 21ecutive order or regulation9 f? 3rdinance9 or g? An* other governmental regulation. 4he petition for declarator* relief is filed before the occurrence of an* breach or violation of the

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W>EN /O(RT MA' RE)(SE TO MA8E .(DI/IAL DE/LARATION 8rounds for the court to refuse to e1ercise declarator* relief9 a? A decision would not terminate the uncertaint* or controvers* which gave rise to the action9 or b? 4he declaration or construction is not necessar* and proper under the circumstances as when the instrument or the statute has alread* been breached. :n declarator* relief7 the court is given the discretion to act or not to act on the petition. :t ma* therefore choose not to construe the instrument sought to be construed or could refrain from declaring the rights of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an instrument is actuall* the functional e,uivalent of the dismissal of the petition. 3n the other hand7 the court does not have the discretion to refuse to act with respect to actions described as similar remedies. 4hus7 in an action for reformation of an instrument7 to ,uiet or to consolidate ownership7 the court cannot refuse to render a %udgment. /ONVERSION TO ORDINAR' A/TION :f before final termination of the case7 a breach should take place7 the action ma* be converted into ordinar* action to avoid multiplicit* of suits. 3rdinar* civil action J plaintiff alleges that his right has been violated b* the defendant9 %udgment rendered is coercive in character9 a writ of e1ecution ma* be e1ecuted against the defeated part*. Special civil action of declarator* relief J an impending violation is sufficient to file a declarator* relief9 no e1ecution ma* be issued9 the court merel* makes a declaration. ,RO/EEDIN+S /ONSIDERED AS SIMILAR REMEDIES Similar remedies areE >a? Action for reformation of an instrument9 >b? Action for ,uieting of title9 and >c? Action to consolidate ownership >Art. !)D+7 Civil Code?.

A& RE)ORMATION O) AN INSTR(MENT :t is not an action brought to reform a contract but to reform the instrument evidencing the contract. :t presupposes that there is nothing wrong with the contract itself because there is a meeting of minds between the parties. 4he contract is to be reformed because despite the meeting of minds of the parties as to the ob%ect and cause of the contract7 the instrument which is supposed to embod* the agreement of the parties does not reflect their true agreement b* reason of mistake7 ine,uitable conduct or accident. 4he action is brought so the true intention of the parties ma* be e1pressed in the instrument (Art. 1359, CC). 4he instrument ma* be reformed if it does not e1press the true intention of the parties because of lack of skill of the person drafting the instrument (Art. 13;3, CC). :f the parties agree upon the mortgage or pledge of propert*7 but the instrument states that the propert* is sold absolutel* or with a right of repurchase7 reformation of the instrument is proper (Art. 13;5, CC). <here the consent of a part* to a contract has been procured b* fraud7 ine,uitable conduct or accident7 and an instrument was e1ecuted b* the parties in accordance with the contract7 what is defective is the contract itself because of vitiation of consent. 4he remed* is not to bring an action for reformation of the instrument but to file an action for annulment of the contract (Art. 1359, CC). Reformation of the instrument cannot be brought to reform an* of the followingE !? Simple donation inter 6i6os wherein no condition is imposed9 "? <ills9 or &? <hen the agreement is void (Art. 1;;;, CC). B& /ONSOLIDATION O) OWNERS>I, 4he concept of consolidation of ownership under Art. 1;.:, Ci6i Co'e7 has its origin in the substantive provisions of the law on sales. Bnder the law7 a contract of sale ma* be e1tinguished either b* legal redemption (Art. 1;19) or conventional redemption (Art. 1;.1).

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Legal redemption (retr"cto e3" ) is a statutor* mandated redemption of a propert* previousl* sold. 5or instance7 a co-owner of a propert* ma* e1ercise the right of redemption in case the shares of all the other co-owners or an* of them are sold to a third person (Art. 1;2.). 4he owners of ad%oining lands shall have the right of redemption when a piece of rural land with a si@e of one hectare or less is alienated (Art. 1;21). Conventional redemption (!"cto 'e retro) sale is one that is not mandated b* the statute but one which takes place because of the stipulation of the parties to the sale. 4he period of redemption ma* be fi1ed b* the parties in which case the period cannot e1ceed ten >!D? *ears from the date of the contract. :n the absence of an* agreement7 the redemption period shall be four >'? *ears from the date of the contract (Art. 1;.;). <hen the redemption is not made within the period agreed upon7 in case the sub%ect matter of the sale is a real propert*7 Art. 1;.: !ro6i'es th"t the conso i'"tion of o)nershi! in the 6en'ee sh" not %e recor'e' in the *e3istr+ of Pro!ert+ )ithout " &u'ici" or'er, "fter the 6en'or h"s %een 'u + he"r'. T! action 9ro%g!t to conso$i#at o"n rs!i- is not :or t! -%r-os o: conso$i#ating t! o"n rs!io: t! -ro- rty in t! - rson o: t! 0 n# or 9%y r 9%t :or t! r gistration o: t! -ro- rty& 4he lapse of the redemption period without the seller a retro e1ercising his right of redemption consolidates ownership or title upon the person of the vendee b* operation of law. Art. 1;.: re,uires the filing of the petition to consolidate ownership because the law precludes the registration of the consolidated title without %udicial order. /& A(IETIN+ O) TITLE TO REAL ,RO,ERT' 4his action is brought to remove a cloud on title to real propert* or an* interest therein. 4he action contemplates a situation where the instrument or a record is apparentl* valid or effective but is in truth and in fact invalid7 ineffective7 voidable or unenforceable7 and ma* be pre%udicial to said title to real propert*. :t ma* also be brought as a preventive remed* to prevent a cloud from being cast upon title to real propert* or an* interest therein (Art. 8:;).

4he plaintiff need not be in possession of the real propert* before he ma* bring the action as long as he can show that he has a legal or an e,uitable title to the propert* which is the sub%ect matter of the action (Art. 8::). REVIEW O) .(D+MENTS AND )INAL ORDERS OR RESOL(TION O) T>E /OMELE/ AND /OA ;R(LE 42= A %udgment or final order or resolution of the Commission on 2lections and the Commission on Audit ma* be brought b* the aggrieved part* to the Supreme Court on certiorari. 4he filing of a petition for certiorari shall not sta* the e1ecution of the %udgment or final order or resolution sought to be reviewed7 unless the SC directs otherwise upon such terms as it ma* deem %ust. 4o prevent the e1ecution of the %udgment7 the petitioner should obtain a temporar* restraining order or a writ of preliminar* in%unction because the mere filing of a petition does not interrupt the course of the principal case. 4ecisions of the Ci6i Ser6ice Co$$ission sh" %e "!!e" e' to the Court of A!!e" s )hich h"s e#c usi6e "!!e "te &uris'iction o6er " &u'3$ents or fin" or'ers of such co$$ission (*A :9.2). 4he petition shall be filed within thirt* >&D? da*s from notice of the %udgment or final order or resolution sought to be reviewed. 4he filing of a motion for new trial or reconsideration of said %udgment or final order or resolution7 if allowed under the procedural rules of the Commission concerned7 shall interrupt the period herein fi1ed. :f the motion is denied7 the aggrieved part* ma* file the petition within the remaining period7 but which shall not be less than five >(? da*s in an* event7 reckoned from notice of denial. #ote that petition for review from decisions of ,uasi-%udicial agencies to the CA should be within !( da*s and does not sta* the decision appealed. etition for review from decisions of the R4C decided in its appellate %urisdiction filed to the CA should be filed within !( da*s and sta*s e1ecution7 unless the case is under the rules of Summar* rocedure. Special civil actions of certiorari7 prohibition7 and mandamus7 from Comelec and C3A should be filed within &D da*s7 and does not sta* the decision appealed. BottomlineE Decisions of ,uasi-%udicial bodies are not sta*ed b* appeal alone. Decisions of regular

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courts are sta*ed on appeal. Although in petition for review on certiorari to the SC via Rule '(7 there is no e1press provision on effect of appeal on e1ecution. 4he Mnot less than ( da*sN provision for filing a pleading applies onl* toE a? filing an answer after a denial of a $tD9 b? filing an answer after denial or service of a bill of particulars9 c? filing an special civil action for certiorari from a decision of the Comelec or CoA after denial of a $fR or $#4. :t does not appl* to filing appeal from decisions of other entities after denial of a $fR or $#4. :n such cases7 either the parties have a fresh !( da*s7 or the balance. A,,LI/ATION O) R(LE 43 (NDER R(LE 42 Sec. +7 Art. :R-A of the Constitution reads7 Munless otherwise provided b* the Constitution or b* law7 an* decision7 order or ruling of each commission ma* be brought to the Supreme Court on certiorari b* the aggrieved part* within &D da*s from receipt of a cop* thereof.N 4he provision was interpreted b* the Supreme Court to refer to certiorari under Rule )( and not appeal b* certiorari under Rule '(. 4o implement the above constitutional provision7 the SC promulgated Rule )'. DISTIN/TION IN T>E A,,LI/ATION O) R(LE 43 TO .(D+MENTS O) T>E /OMELE/ AND /OA AND T>E A,,LI/ATION O) R(LE 43 TO OT>ER TRIB(NALS? ,ERSONS AND O))I/ERS R%$ 42 Directed onl* to the %udgments7 final orders or resolutions of the C3$2L2C and C3A9 5iled within &D da*s from notice of the %udgment9 4he filing of a motion for reconsideration or a motion for new trial if allowed interrupts the period for the filing of the petition for certiorari. :f the motion is denied7 the aggrieved part* ma* file the petition within the remaining period7 R%$ 43 Directed to an* tribunal7 board or officers e1ercising %udicial or ,uasi-%udicial functions9 5iled within )D da*s from notice of the %udgment9 4he period within which to file the petition if the motion for reconsideration or new trial is denied is )D da*s from notice of the denial of the motion.

but which shall not be less than ( da*s reckoned from the notice of denial. (-da* Rule does not appl* in filing of notice of appeal /ERTIORARI? ,RO>IBITION AND MANDAM(S ;R(LE 43= / rtiorari is a remed* for the correction of errors of %urisdiction7 not errors of %udgment. :t is an original and independent action that was not part of the trial that had resulted in the rendition of the %udgment or order complained of. Since the issue is %urisdiction7 an original action for certiorari ma* be directed against an interlocutor* order of the lower court prior to an appeal from the %udgment. <here the error is not one of %urisdiction7 but of law or fact which is a mistake of %udgment7 the proper remed* should be appeal. 0ence7 if there was no ,uestion of %urisdiction involved in the decision and what was being ,uestioned was merel* the findings in the decision of whether or not the practice of the other part* constitutes a violation of the agreement7 the matter is a proper sub%ect of appeal7 not certiorari. 'iling of petition for certiorari does not interrupt the course of the principal action nor the running of the reglementary periods involved in the proceeding, unless an application for a restraining order or a writ of preliminary in#unction to the appellate court is granted. #either does it interrupt the reglementar* period for the filing of an answer nor the course of the case where there is no writ of in%unction. :n a summar* proceeding7 petitions for certiorari7 prohibition or mandamus against an interlocutor* order of the court are not allowed. Certiorari is not and cannot be made a substitute for an appeal where the latter remed* is available but was lost through fault or negligence. 4he remed* to obtain a reversal of %udgment on the merits is appeal. 4his holds true even if the error ascribed to the lower court is its lack of %urisdiction over the sub%ect matter7 or the e1ercise of power in e1cess thereof7 or grave abuse of discretion. 4he e1istence and availabilit* of the right to appeal prohibits the resort to certiorari because one of the

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re,uirements for certiorari is that there is no appeal. 21ceptions to the rule that certiorari is not available when the period for appeal has lapsed and certiorari ma* still be invoked when appeal is lost are the followingE !? Appeal was lost without the appellantCs negligence9 "? <hen public welfare and the advancement of public polic* dictates9 &? <hen the broader interest of %ustice so re,uires9 '? <hen the writs issued are null and void9 and /ERTIORARI Certiorari is an e1traordinar* writ A##BLL:#8 3R $3D:5H:#8 the proceedings of a tribunal7 board or officer e1ercising %udicial or ,uasi-%udicial functions when such tribunal7 board or officer has acted without or in e1cess of its or his %urisdiction7 or with grave abuse of discretion amounting to lack or e1cess of %urisdiction7 there being no appeal or an* other plain7 speed* and ade,uate remed* in the ordinar* course of law (Sec. 1, *u e ;5). Directed against a person e1ercising to %udicial or ,uasi%udicial functions 4he tribunal7 board or acted without7 or in %urisdiction or with discretion amounting e1cess or %urisdiction officer has e1cess of abuse of to lack or ,RO>IBITION

(? <hen the ,uestioned order amounts to an oppressive e1ercise of %udicial authorit*.

MANDAM(S $andamus is an e1traordinar* writ commanding a tribunal7 corporation7 board or person7 to do an act R2AB:R2D to be doneE a? <hen he unlawfull* neglects the performance of an act which the law specificall* en%oins as a dut*7 and there is no other plain7 speed* and ade,uate remed* in the ordinar* course of law9 or b? <hen one unlawfull* e1cludes another from the use and en%o*ment of a right or office to which the other is entitled (Sec. 3, *u e ;5). Directed against a person e1ercising ministerial duties :t must be the dut* of the defendant to perform the act7 which is ministerial and not discretionar*7 because the same is mandated b* law. 4he 'efen'"nt un ")fu + ne3 ects the !erfor$"nce of the 'ut+ en&oine' %+ ")9 3b%ect is to com- $ urpose is to co$!e !erfor$"nce of the "ct re(uire' "n' to co ect '"$"3es erson must have neglected a ministerial dut* or e1cluded another from a right or office 4he person aggrieved thereb* ma* file a verified petition in the

rohibition is an e1traordinar* writ C3$$A#D:#8 a tribunal7 corporation7 board or person7 whether e1ercising %udicial7 ,uasi-%udicial or ministerial functions7 43 D2S:S4 from further proceedings when said proceedings are without or in e1cess of its %urisdiction7 or with abuse of its discretion7 there being no appeal or an* other plain7 speed* and ade,uate remed* in the ordinar* course of law (Sec. 2, *u e ;5). Directed against a person e1ercising %udicial or ,uasi%udicial functions7 or ministerial functions 4he tribunal7 corporation7 board or person must have acted without or in e1cess of %urisdiction or with grave abuse of discretion amounting to lack of %urisdiction9 4here is no "!!e" or "n+ ! "in, s!ee'+ "n' "'e(u"te re$e'+ in the or'in"r+ course of "). 3b%ect is to -r 0 nt urpose is to sto! the !rocee'in3s erson or entit* must have acted without or in e1cess of %urisdiction7 or with grave abuse of discretion A person aggrieved thereb* ma* file a verified petition in the

4here is no "!!e" or "n+ ! "in, s!ee'+ "n' "'e(u"te re$e'+ in the or'in"r+ course of "). 3b%ect is to corr ct urpose is to "nnu or $o'if+ the !rocee'in3s erson or entit* must have acted without or in e1cess of %urisdiction7 or with grave abuse of discretion A person aggrieved thereb* ma* file a verified petition in the

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proper court7 alleging the facts with certaint* and pra*ing that %udgment be rendered annulling or modif*ing the proceedings of such tribunal7 board or officer7 and granting such incidental reliefs as law and %ustice ma* re,uire. 4he petition shall be accompanied b* a certified true cop* of the %udgment7 order or resolution sub%ect thereof7 copies of all pleadings and documents relevant and pertinent thereto7 and a sworn certification of non-forum shopping.

proper court7 alleging the facts with certaint* and pra*ing that %udgment be rendered commanding the respondent to desist from further proceedings in the action or matter specified therein7 or otherwise granting such incidental reliefs as law and %ustice ma* re,uire. 4he petition shall likewise be accompanied b* a certified true cop* of the %udgment7 order or resolution sub%ect thereof7 copies of all pleadings and documents relevant and pertinent thereto7 and a sworn certification of nonforum shopping.

proper court7 alleging the facts with certaint* and pra*ing that %udgment be rendered commanding the respondent7 immediatel* or at some other time to be specified b* the court7 to do the act re,uired to be done to protect the rights of the petitioner7 and to pa* the damages sustained b* the petitioner b* reason of the wrongful acts of the respondent. 4he petition shall also contain a sworn certification of non-forum shopping.

,RO>IBITION Alwa*s the main action Directed against a court7 a tribunal e1ercising %udicial or ,uasi-%udicial functions 8round must be the court acted without or in e1cess of %urisdiction ,RO>IBITION 4o prevent an act b* a respondent $a* be directed against entities e1ercising %udicial or ,uasi-%udicial7 or ministerial functions 21tends to discretionar* functions MANDAM(S Clarifies legal duties7 not legal titles Respondent7 without claiming an* right to the office7 e1cludes the petitioner

IN.(N/TION $a* be the main action or %ust a provisional remed* Directed against a part* Does not involve a ,uestion of %urisdiction MANDAM(S 4o compel an act desired $a* be directed against %udicial and non-%udicial entities 21tends onl* to ministerial functions A(O WARRANTO Clarifies who has legal title to the office7 or franchise Respondent usurps the office

$andamus can be issued to perform an act but not to approve a certain re,uest IN.(N/TIVE RELIE) 4he court in which the petition is filed ma* issue orders e1pediting the proceedings7 and it ma* also grant a temporar* restraining order or a writ of preliminar* in%unction for the preservation of the rights of the parties pending such proceedings. 4he petition shall not interrupt the course of the principal case unless a temporar* restraining order or a writ of preliminar* in%unction has been issued against the public respondent from further proceeding in the case. 4he public respondent shall proceed with the principal case within ten >!D? da*s from the filing of a petition for certiorari with a higher court or tribunal7 absent a 4emporar* Restraining 3rder >4R3? or a <rit of reliminar* :n%unction7 or upon its e1piration. 5ailure of the public respondent to proceed with the principal case ma* be a ground

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for an administrative charge (A, .:/:/12/SC, 4ec. 12, 2..:). /ERTIORARI AS A MODE O) A,,EAL ;R(LE 23= Called petition for review on certiorari7 is a mode of appeal7 which is but a continuation of the appellate process over the original case9 Seeks to review final %udgments or final orders9 Raises onl* ,uestions of law9 /ERTIORARI AS A S,E/IAL /IVIL A/TION ;R(LE 43= A special civil action that is an original action and not a mode of appeal7 and not a part of the appellate process but an independent action. $a* be directed against an interlocutor* order of the court or where not appeal or plain or speed* remed* available in the ordinar* course of law Raises ,uestions of %urisdiction because a tribunal7 board or officer e1ercising %udicial or ,uasi-%udicial functions has acted without %urisdiction or in e1cess of %urisdiction or with grave abuse of discretion amounting to lack of %urisdiction9 5iled not later than )D da*s from notice of %udgment7 order or resolution sought to be assailed and in case a motion for reconsideration or new trial is timel* filed7 whether such motion is re,uired or not7 the )D da* period is counted from notice of denial of said motion9 21tension no longer allowed9 $otion for Reconsideration is a condition precedent7 sub%ect to e1ceptions Does not sta* the %udgment or order sub%ect of the petition unless en%oined or restrained9 4he tribunal7 board7 officer e1ercising %udicial or ,uasi%udicial functions is impleaded as respondent $a* be filed with the Supreme Court7 Court of Appeals7 Sandiganba*an7 or Regional 4rial Court

5iled within !( da*s from notice of %udgment or final order appealed from7 or of the denial of petitionerLs motion for reconsideration or new trial9 21tension of &D da*s ma* be granted for %ustifiable reasons Does not re,uire a prior motion for reconsideration9 Sta*s the %udgment appealed from9 arties are the original parties with the appealing part* as the petitioner and the adverse part* as the respondent without impleading the lower court or its %udge9 5iled with onl* the Supreme Court SC ma* den* the decision $otu !ro!io on the ground that the appeal is without merit7 or is prosecuted manifestl* for dela*7 or that the ,uestions raised therein are too unsubstantial to re,uire consideration.

4he remedies of appeal and certiorari are


mutuall* e1clusive and not alternative or successive. 4he antithetic character of appeal and certiorari has been generall* recogni@ed and observed save onl* on

those rare instances when appeal is satisfactoril* shown to be an inade,uate remed*. 4hus7 a petitioner must show valid reasons wh* the issues raised in his petition for certiorari could not have been raised on appeal. IN.(N/TION $ain action for in%unction seeks to en%oin the defendant from the commission or continuance of a specific act7 or to compel a particular act in violation of the rights of the applicant. reliminar* in%unction is a provisional remed* to preserve the status ,uo and prevent

,RO>IBITION rohibition is an e1traordinar* writ commanding a tribunal7 corporation7 board or person7 whether e1ercising %udicial7 ,uasi-%udicial or ministerial functions7 to desist from further proceedings when said proceedings are without or in e1cess of its %urisdiction7 or

MANDAM(S $andamus is an e1traordinar* writ commanding a tribunal7 corporation7 board or person7 to do an act re,uired to be doneE >a? <hen he unlawfull* neglects the performance of an act which the law specificall* en%oins as a dut*7 and there is no other plain7 speed* and ade,uate remed* in

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with abuse of its discretion7 there being no appeal or an* other plain7 speed* and ade,uate remed* in the ordinar* course of law >Sec. "7 Rule )(?. Special civil action 4o prevent an encroachment7 e1cess7 usurpation or assumption of %urisdiction9 $a* be directed against entities e1ercising %udicial or ,uasi-%udicial7 or ministerial functions 21tends to discretionar* functions Alwa*s the main action $a* be brought in the Supreme Court7 Court of Appeals7 Sandiganba*an7 or in the Regional 4rial Court which has %urisdiction over the territorial area where respondent resides.

the ordinar* course of law9 or >b? <hen one unlawfull* e1cludes another from the use and en%o*ment of a right or office to which the other is entitled >Sec. &7 Rule )(?. Special civil action 4o compel the performance of a ministerial and legal dut*9 $a* be directed against %udicial and non-%udicial entities 21tends onl* functions to ministerial

future wrongs in order to preserve and protect certain interests or rights during the pendenc* of an action. 3rdinar* civil action 5or the defendant either to refrain from an act or to perform not necessaril* a legal and ministerial dut*9 Directed against a part*

Alwa*s the main action $a* be brought in the Supreme Court7 Court of Appeals7 Sandiganba*an7 or in the Regional 4rial Court which has %urisdiction over the territorial area where respondent resides.

Does not necessaril* e1tend to ministerial7 discretionar* or legal functions9 $a* be the main action or %ust a provisional remed* $a* be brought in the Regional 4rial Court which has %urisdiction over the territorial area where respondent resides.

E*/E,TIONS TO )ILIN+ O) MOTION )OR RE/ONSIDERATION BE)ORE )ILIN+ ,ETITION !? <hen the issue is one purel* of law9 "? <hen there is urgenc* to decide upon the ,uestion and an* further dela* would pre%udice the interests of the government or of the petitioner9 &? <here the sub%ect matter of the action is perishable9 '? <hen order is a patent nullit*7 as where the court a ,uo has no %urisdiction or there was no due process9 (? <hen ,uestions have been dul* raised and passed upon b* the lower court9 )? <hen is urgent necessit* for the resolution of the ,uestion9 +? <hen $otion for Reconsideration would be useless7 e.g. the court alread* indicated it would den* an* $otion for Reconsideration9 -? :n a criminal case7 where relief from order of arrest is urgent and the granting of such relief b* the trial court is improbable9 .? <here the proceedings was e1 parte or in which the petitioner had no opportunit* to ob%ect9

!D? <hen petitioner is deprived of due process and there is e1treme urgenc* for urgent relief9 and !!? <hen issue raised is one purel* of law or public interest is involved. RELIE)S ,ETITIONER IS ENTITLED TO 4he primar* relief will be annulment or modification of the %udgment7 order or resolution or proceeding sub%ect of the petition. :t ma* also include such other incidental reliefs as law and %ustice ma* re,uire. 4he court7 in its %udgment ma* also award damages and the e1ecution of the award for damages or costs. A/TIONSBOMISSIONS O) MT/BRT/ IN ELE/TION /ASES Bnder Rule )(7 the proper part* who can file a petition for certiorari7 prohibition or mandamus is the person aggrieved b* the action of a trial court or tribunal in a criminal case pending before it. 3rdinaril*7 the petition is filed in the name of the eople of the hilippines b* the Solicitor 8eneral. 0owever7 there are cases when such petition ma* be filed b* other parties who have been

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aggrieved b* the order or ruling of the trial courts. :n the prosecution of election cases7 the aggrieved part* is the Comelec7 who ma* file the petition in its name through its legal officer or through the Solicitor 8eneral if he agrees with the action of the Comelec. W>ERE TO )ILE ,ETITION S%-r m /o%rt Sub%ect to the doctrine of hierarch* of courts and onl* when compelling reasons e1ist for not filing the same with the lower courts R giona$ Tria$ :f the petition relates /o%rt to an act or an omission of an $4C7 corporation7 board7 officer or person /o%rt o: A-- a$s :f the petition involves on$y an act or an omission of a ,uasi-%udicial agenc*7 unless otherwise provided b* law or rules /o%rt o: A-- a$s <hether or not in aid or t! of appellate San#igan9ayan %urisdiction /ommission on :n election cases E$ ctions involving an act or an omission of an $4C or R4C As "$en'e' %+ A, -o. .:/:/12/SC, 4ec. 12, 2..: A petition for certiorari must be based on %urisdictional grounds because as long as the respondent acted with %urisdiction7 an* error committed b* him or it in the e1ercise thereof will amount to nothing more than an error of %udgment which ma* be reviewed or corrected b* appeal. E))E/TS O) )ILIN+ O) AN (NMERITORIO(S ,ETITION 4he Court ma* impose $otu !ro!rio, based on res i!s" o(uitur7 other disciplinar* sanctions or measures on erring law*ers for patentl* dilator* an unmeritorious petition for certiorari. 4he court ma* dismiss the petition if it finds the same patentl* without merit or prosecuted manifestl* for dela*7 or if the ,uestions raised therein are too unsubstantial to re,uire consideration.

:n such event7 the court ma* award in favor of the respondent treble costs solidaril* against the petitioner and counsel7 in addition to sub%ecting counsel to administrative sanctions. A(O WARRANTO ;R(LE 44= Auo warranto is a demand made b* the state upon some individual or corporation to show b* what right the* e1ercise some franchise or privilege appertaining to the state which7 according to the Constitution and laws the* cannot legall* e1ercise b* virtue of a grant and authorit* from the State. :t is a special civil action commenced b* a verified petition againstE a? a person who usurps a public office7 position or franchise9 b? a public officer who performs an act constituting forfeiture of a public office9 or c? an association which acts as a corporation within the hilippines without being legall* incorporated or without lawful authorit* to do so. A(O WARRANTO ;R(LE 44= Sub%ect of the petition is in relation to an appointive office9 4he issue is the legalit* of the occupanc* of the office b* virtue of a legal appointment9 etition is brought either to the Supreme Court7 the Court of Appeals or the Regional 4rial Court9 A(O WARRANTO ;ELE/TION /ODE= Sub%ect of the petition is in relation to an elective office9 8rounds relied upon areE >a? ineligibilit* to the position9 or >b? dislo*alt* to the Republic. $a* be instituted with the C3$2L2C b* an* voter contesting the election of an* member of Congress7 regional7 provincial or cit* officer9 or to the $e4C7 $4C or $C4C if against an* baranga* official9 5iled within ten >!D? da*s after the proclamation of the results of the election9

5iled within one >!? *ear from the time the cause of ouster7 or the right of the petitioner to hold the office or position arose9 etitioner is the

etitioner ma* be an*

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person entitled to the office9 4he court has to declare who the person entitled to the office is if he is the petitioner.

voter even if he is not entitled to the office9 <hen the tribunal declares the candidateelect as ineligible7 he will be unseated but the person occup*ing the second place will not be declared as the one dul* elected because the law shall consider onl* the person who7 having dul* filed his certificate of candidac*7 received a pluralit* of votes. 0R24 has %urisdiction involving member of Congress W>EN +OVERNMENT /OMMEN/E AN A/TION A+AINST INDIVID(ALS

Solicitor 8eneral and without need for an* leave of court. :n bringing a petition for ,uo warranto7 he must show that he has a clear right to the office allegedl* being held b* another. :t is not enough that he merel* asserts the right to be appointed to the office. .(D+MENT IN A(O WARRANTO A/TION

3f office7 position or franchise7 %udgment shall be rendered that such respondent be ousted and altogether e1cluded therefrom7 and that the petitioner recover his costs. Such further %udgment ma* be rendered determining the respective rights in and to the public office7 position or franchise of the parties to the action as %ustice re,uires. RI+>TS O) A ,ERSON AD.(D+ED ENTITLED TO ,(BLI/ O))I/E :f the petitioner is ad%udged to be entitled to office7 he ma* sue for damages against alleged usurper within one >!? *ear from entr* of %udgment establishing his right to office in ,uestion. E*,RO,RIATION ;R(LE 45= !? 4o be filed with the R4C9 this is action incapable of pecuniar* estimation "? 21propriation is an e1ercise of the StateCs power of eminent domain wherein the government takes a private propert* for public purpose upon pa*ment of %ust compensation. MATTERS TO ALLE+E IN /OM,LAINT )OR E*,RO,RIATION An e1propriation proceeding is commenced b* the filing of a verified complaint which shallE a? State with certaint* the right of the plaintiff to e1propriation and the purpose thereof9 b? Describe the real or personal propert* sought to be e1propriated9 and c? /oin as defendants all persons owning or claiming to own7 or occup*ing7 an* part of the propert* or interest therein showing as far as practicable the interest of each defendant. :f the plaintiff cannot with accurac* identif* the real owners7 averment to that effect must be made in the complaint. the the the the

Auo warranto is commenced b* a verified petition brought in the name of the 8overnment of the Republic of the hilippines b* the Solicitor 8eneral7 or in some instances7 b* a public prosecutor. <hen the action is commenced b* the Solicitor 8eneral7 the petition ma* be brought in the Regional 4rial Court of the Cit* of $anila7 the Court of Appeals or the Supreme Court. An action for the usurpation of a public office7 position or franchise ma* be commenced b* a verified petition brought in the name of the Republic of the hilippines thru the Solicitor 8eneral againstE !? A person who usurps7 intrudes into7 or unlawfull* holds or e1ercises a public office7 position or franchise9 "? A public officer who does or suffers an act which7 b* the provision of law7 constitutes a ground for the forfeiture of his office9 &? An association which acts a corporation within the hilippines without being legall* incorporated or without lawful authorit* so to act. W>EN INDIVID(AL MA' /OMMEN/E AN A/TION

4he petition ma* be commenced b* a private person in his own name where he claims to be entitled to the public office or position alleged to have been usurped or unlawfull* held or e1ercised b* another. Accordingl*7 the private person ma* maintain the action without the intervention of the

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TWO STA+ES IN EVER' A/TION )OR E*,RO,RIATION

include all ob%ections then available7 and all ob%ections not so included shall be deemed waived. :f a defendant has no ob%ection or defense to the action or the taking of his propert*7 he ma* file and serve a notice of appearance and a manifestation to that effect7 specificall* designating or identif*ing the propert* in which he claims to be interested7 within the time stated in the summons. 4hereafter7 he shall be entitled to notice of all proceedings affecting the same. :f a defendant has an* ob%ection to the filing of or the allegations in the complaint7 or an* ob%ection or defense to the taking of his propert*7 he shall serve his answer within the time stated in the summons. 4he answer shall specificall* designate or identif* the propert* in which he claims to have an interest7 state the nature and e1tent of the interest claimed7 and adduce all his ob%ections and defenses to the taking of his propert*. #o counterclaim7 cross-claim or thirdpart* complaint shall be alleged or allowed in the answer or an* subse,uent pleading. A defendant waives all defenses and ob%ections not so alleged but the court7 in the interest of %ustice7 ma* permit amendments to the answer to be made not later than ten >!D? da*s from the filing thereof. 0owever7 at the trial of the issue of %ust compensation7 whether or not a defendant has previousl* appeared or answered7 he ma* present evidence as to the amount of the compensation to be paid for his propert*7 and he ma* share in the distribution of the award. ORDER O) E*,RO,RIATION :f the ob%ections to and the defenses against the right of the plaintiff to e1propriate the propert* are overruled7 or when no part* appears to defend as re,uired b* this Rule7 the court ma* issue an order of e1propriation declaring that the plaintiff has a lawful right to take the propert* sought to be e1propriated7 for the public use or purpose described in the complaint7 upon the pa*ment of %ust compensation to be determined as of the date of the taking of the propert* or the filing of the complaint7 whichever came first. A final order sustaining the right to e1propriate the propert* ma* be appealed b* an* part* aggrieved thereb*. Such appeal7 however7 shall not prevent the court from determining the %ust compensation to be paid.

!? Determination of the authorit* of the plaintiff


to e1propriate ("!!e" "% e " re"'+ "t this st"3e) J this includes an in,uir* into the propriet* of the e1propriation7 its necessit* and the public purpose. 4his stage will end in the issuance of an order of e1propriation if the court finds for the plaintiff or in the dismissal of the complaint if it finds otherwise. "? Determination of %ust compensation through the court-appointed commissioners. W>EN ,LAINTI)) /AN IMMEDIATEL' ENTER INTO ,OSSESSION O) T>E REAL ,RO,ERT' IN RELATION TO RA 6752 21cept for the ac,uisition of right-of-wa*7 site or location for an* national government infrastructure pro%ect through e1propriation7 the e1propriator shall have the right to take or enter upon the possession of the real propert* involved if he deposits with the authori@ed government depositar* an amount e,uivalent to the assessed value of the propert* for purposes of ta1ation to be held b* such bank sub%ect to the orders of the court. such deposit shall be in mone*7 unless in lieu thereof the court authori@es the deposit of a certificate of deposit of a government bank of the hilippines pa*able on demand to the authori@ed government depositar*. NEW S'STEM O) IMMEDIATE ,A'MENT O) INITIAL .(ST /OM,ENSATION 5or the ac,uisition of right-of-wa*7 site or location for an* national government infrastructure pro%ect through e1propriation7 upon the filing of the filing of the complaint7 and after due notice to the defendant7 the implementing agenc* shall immediatel* pa* the owner of the propert* the amount e,uivalent to the sum ofE !? !DD 2RC2#4 of the value of the propert* based on the current relevant @onal valuation of the B:R9 and "? 4he value of the improvements and6or structures as determined un'er Sec. : of *A <9:8 (Sec. 8, *A <9:8). L8B J !(U market value DE)ENSES AND OB.E/TIONS 3mnibus $otion Rule S a motion attacking a pleading7 order7 %udgment or proceeding shall

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After the rendition of such an order7 the plaintiff shall not be permitted to dismiss or discontinue the proceeding e1cept on such terms as the court deems %ust and e,uitable. Appealable with the CA AS/ERTAINMENT O) .(ST /OM,ENSATION 4he order of e1propriation merel* declares that the plaintiff has the lawful to e1propriate the propert* but contains no ascertainment of the compensation to be paid to the owner of the propert*. So upon the rendition of the order of e1propriation7 the court shall appoint not more than three >&? commissioners to ascertain the %ust compensation for the propert*. 3b%ections to the appointment ma* be made within !D da*s from service of the order of appointment. 4he commissioners are entitled to fees and their fees shall be ta1ed as part of the costs of the proceedings7 and all costs shall be paid b* the plaintiff e1cept those costs of rival claimants litigating their claims. <here the principal issue is the determination of %ust compensation7 a hearing before the commissioners is indispensable to allow the parties to present evidence on the issue of %ust compensation. Although the findings of the commissioners ma* be disregarded and the trial court ma* substitute its own estimate of the value7 the latter ma* do so onl* for valid reasons7 that is where the commissioners have applied illegal principles to the evidence submitted to them7 where the* have disregarded a clear preponderance of evidence7 or where the amount allowed is either grossl* inade,uate or e1cessive. A,,OINTMENT O) /OMMISSIONERSH /OMMISSIONERDS RE,ORTH /O(RT A/TION (,ON /OMMISSIONERDS RE,ORT A--ointm nt& Bpon the rendition of the order of e1propriation7 the court shall appoint not more than three >&? competent and disinterested persons as commissioners to ascertain and report to the court the %ust compensation for the propert* sought to be taken. 4he order of appointment shall designate the time and place of the first session of the hearing to be held b* the commissioners and specif* the time within which their report shall be submitted to the court. Copies of the order shall be served on the parties. 3b%ections to the appointment of an* of

the commissioners shall be filed with the court within ten >!D? da*s from service7 and shall be resolved within thirt* >&D? da*s after all the commissioners shall have received copies of the ob%ections. R -ort& 4he court ma* order the commissioners to report when an* particular portion of the real estate shall have been passed upon b* them7 and ma* render %udgment upon such partial report7 and direct the commissioners to proceed with their work as to subse,uent portions of the propert* sought to be e1propriated7 and ma* from time to time so deal with such propert*. 4he commissioners shall make a full and accurate report to the court of all their proceedings7 and such proceedings shall not be effectual until the court shall have accepted their report and rendered %udgment in accordance with their recommendations. 21cept as otherwise e1pressl* ordered b* the court7 such report shall be filed within si1t* >)D? da*s from the date the commissioners were notified of their appointment7 which time ma* be e1tended in the discretion of the court. Bpon the filing of such report7 the clerk of the court shall serve copies thereof on all interested parties7 with notice that the* are allowed ten >!D? da*s within which to file ob%ections to the findings of the report7 if the* so desire. Action %-on t! r -ort& Bpon the e1piration of the period of ten >!D? da*s referred to in the preceding section7 or even before the e1piration of such period but after all the interested parties have filed their ob%ections to the report or their statement of agreement therewith7 the court ma*7 after hearing7 accept the report and render %udgment in accordance therewith9 or7 for cause shown7 it ma* recommit the same to the commissioners for further report of facts9 or it ma* set aside the report and appoint new commissioners9 or it ma* accept the report in part and re%ect it in part9 and it ma* make such order or render such %udgment as shall secure to the plaintiff the propert* essential to the e1ercise of his right of e1propriation7 and to the defendant %ust compensation for the propert* so taken. RI+>TS O) ,LAINTI)) (,ON .(D+MENT AND ,A'MENT After pa*ment of the %ust compensation as determined in the %udgment7 the plaintiff shall have the right to enter upon the propert* e1propriated and to appropriate the same for the public use or purpose defined in the %udgment or to retain possession alread* previousl* made.

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4itle to the propert* e1propriated passes from the owner to the e1propriator upon full pa*ment of %ust compensation. E))E/T O) RE/ORDIN+ O) .(D+MENT 4he %udgment entered in e1propriation proceedings shall state definitel*7 b* an ade,uate description7 the particular propert* or interest therein e1propriated7 and the nature of the public use or purpose for which it is e1propriated. <hen real estate is e1propriated7 a certified cop* of such %udgment shall be recorded in the registr* of deeds of the place in which the propert* is situated7 and its effect shall be to vest in the plaintiff the title to the real estate so described for such public use or purpose. )ORE/LOS(RE O) REAL ESTATE MORT+A+E ;R(LE 46= .(D+MENT ON )ORE/LOS(RE )OR ,A'MENT OR SALE :f after the trial7 the court finds that the matters set forth in the complaint are true7 it shall render a %udgment containing the following mattersE a? An ascertainment of the amount due to the plaintiff upon the mortgage debt or obligation7 including interest and other charges as approved b* the court7 as well as costs9 b? A %udgment of the sum found due9 c? An order that the amount found due be paid to the court or to the %udgment obligee within the period of not less than .D da*s nor more than !"D da*s from the entr* of %udgment9 and d? An admonition that in default of such pa*ment the propert* shall be sold at public auction to satisf* the %udgment. 4he %udgment of the court on the above matters is considered a final ad%udication of the case and hence7 is sub%ect to challenge b* the aggrieved part* b* appeal or b* other post-%udgment remedies. 4he period granted to the mortgagor for the pa*ment of the amount found due b* the court is not %ust a procedural re,uirement but s substantive right given b* law to the mortgagee as his first chance to save his propert* from final disposition at the foreclosure sale.

A real estate mortgage is an accessor*


contract e1ecuted b* a debtor in favor of a creditor as securit* for the principal obligation. 4his principal obligation is a simple loan or mutuum described in Art. 1953, Ci6i Co'e. 4o be a real estate mortgage7 the contract must be constituted on either immovables >real propert*? or inalienable real rights. :f constituted on movables7 the contract is a chattel mortgage (Art. 2128, CC). A mortgage contract ma* have a provision in which the mortgage is a securit* for past7 present and future indebtedness. 4his clause known as a DRA+NET /LA(SE OR BLAN8ET mortgage clause has its origins in American %urisprudence. 4he Supreme Court ruled that mortgages given to secure future advancements are valid and legal contracts (Pru'enti" B"n9 6s. A 6i"r, 8;8 SC*A 353). SALE O) MORT+A+ED ,RO,ERT'H E))E/T 4he confirmation of the sale shall divest the rights in the propert* of all parties to the action and shall vest their rights in the purchaser7 sub%ect to such rights of redemption as ma* be allowed b* law. 4he title vests in the purchaser upon a valid confirmation of the sale and retroacts to the date of sale. 4he import of Sec. 3 includes one vital effectE 4he e,uit* of redemption of the mortgagor or redemptioner is cut-off and there will be no further redemption7 unless allowed b* law >as in the case of banks as mortgagees?. 4he e,uit* of redemption starts from the ninet*da* period set in the %udgment of the court up to the time before the sale is confirmed b* an order of the court. Onc con:irm #? no E%ity o: r # m-tion may :%rt! r 9 x rcis #& 4he or'er of confir$"tion is "!!e" "% e and if not appealed within the period for appeal becomes final. Bpon the finalit* of the order of confirmation or upon the e1piration of the period of redemption when allowed b* law7 the purchaser at the auction sale or last redemptioner7 if an*7 shall be entitled to the possession of the propert* and he ma* secure a writ of possession7 upon7 motion7 from the court which ordered the foreclosure unless a third part* is actuall* holding the same adversel* to the %udgment obligor.

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DIS,OSITION O) ,RO/EEDS O) SALE 4he proceeds of the sale of the mortgaged propert* shall7 after deducting the costs of the sale7 be paid to the person foreclosing the mortgage7 and when there shall be an* balance or residue after pa*ing off the mortgage debt due7 the same shall be paid to %unior encumbrancers in the order of their priorit*. :f there be an* further balance after pa*ing them or if there be no %unior encumbrancers7 the same shall be paid to the mortgagor or an* person entitled thereto. DE)I/IEN/' .(D+MENT :f there be a balance due to the plaintiff after appl*ing the proceeds of the sale7 the court7 upon motion7 shall render %udgment against the defendant for an* such balance. 21ecution ma* issue immediatel* if the balance is all due the plaintiff shall be entitled to e1ecution at such time as the remaining balance shall become due and such due date shall be stated in the %udgment. #ote that the deficienc* %udgment is in itself a %udgment hence7 also appealable. #o independent action need be filed to recover the deficienc* from the mortgagor. 4he deficienc* %udgment shall be rendered upon motion of the mortgagee. 4he motion must be made onl* after the sale and after it is known that a deficienc* e1ists. Before that7 an* court order to recover the deficienc* is void. :t has been held that the mortgagor who is not the debtor and who merel* e1ecuted the mortgage to secure the principal debtorCs obligation is not liable for the deficienc* unless he assumed liabilit* for the same in the contract. Since a deficienc* %udgment cannot be obtained against the mortgagor who is not the debtor in the principal obligation7 mortgagee ma* have to file a separate suit against the principal debtor. INSTAN/ES W>EN /O(RT /ANNOT RENDER DE)I/IEN/' .(D+MENT <here the debtor-mortgagor is a non-resident and who at the time of the filing of the action for foreclosure and during the pendenc* of the proceedings was outside the hilippines7 it is believed that a deficienc* %udgment would not be procedurall* feasible. A 'eficienc+ &u'3$ent is %+ n"ture in !erson"$ "n' &uris'iction o6er the !erson is $"n'"tor+.

C"6in3 %een outsi'e the countr+, &uris'iction o6er his !erson cou ' not h"6e %een "c(uire'. E*TRA<.(DI/IAL )ORE/LOS(RE ;A/T 1113= #o complaint is filed9 4here is a right of redemption. $ortgagor has a right of redemption for ! *ear from registration of the sale9 .(DI/IAL )ORE/LOS(RE ;R(LE 46= Complaint is filed with the courts9 #o right of redemption e1cept when mortgagee is a banking institution9 e,uit* of redemption onl* >.D to !"D da*s7 and an* time before confirmation of foreclosure sale?9 $ortagagee can move for deficienc* %udgment in the same action Bu*er at public auction becomes absolute owner onl* after confirmation of the sale9 $ortgagee need not be given a special power of attorne*.

$ortgagee has to file a separate action to recover an* deficienc*9 Bu*er at public auction becomes absolute owner onl* after finalit* of an action for consolidation of ownership9 $ortgagee is given a special power of attorne* in the mortgage contract to foreclose the mortgaged propert* in case of default. EA(IT' O) REDEM,TION 4he right of defendant mortgagor to e1tinguish the mortgage and retain ownership of the propert* b* pa*ing the debt within .D to !"D da*s after the entr* of %udgment or even after the foreclosure sale but prior to confirmation.

RI+>T O) REDEM,TION A right granted to a debtor mortgagor7 his successor in interest or an* %udicial creditor or %udgment creditor or an* person having a lien on the propert* subse,uent to the mortgage or deed of trust under which the propert* is sold to repurchase the propert* within one *ear even after the confirmation of the sale and even after the registration of the

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$a* be e1ercised even after the foreclosure sale provided it is made before the sale is confirmed b* order of the court.

$a* also e1ist in favor or other encumbrances. :f subse,uent lien holders are not impleaded as parties in the foreclosure suit7 the %udgment in favor of the foreclosing mortgagee does not bind the other lien holders. :n this case7 their e,uit* of redemption remains unforeclosed. A separate foreclosure proceeding has to be brought against them to re,uire them to redeem from the first mortgagee or from the part* ac,uiring the title to the mortgaged propert*. :f not b* banks7 the mortgagors merel* have an e,uit* of redemption7 which is simpl* their right7 as mortgagor7 to e1tinguish the mortgage and retain ownership of the propert* b* pa*ing the secured debt prior to the confirmation of the foreclosure sale.

certificate of foreclosure sale. 4here is no right of redemption in a %udicial foreclosure of mortgage under Rule )-. 4his right of redemption e1ists onl* in e1tra%udicial foreclosures where there is alwa*s a right of redemption within one *ear from the date of sale (Sec. 3, Act 3135), but interpreted b* the Court to mean one *ear from the registration of the sale. 8eneral ruleE :n %udicial foreclosures there is onl* an e,uit* of redemption which can be e1ercised prior to the confirmation of the foreclosure sale. 4his means that after the foreclosure sale but before its confirmation7 the mortgagor ma* e1ercise his right of pa* the proceeds of the sale and prevent the confirmation of the sale.

be one *ear counted from the date of registration of the certificate in the Registr* of ropert*

,ARTITION ;R(LE 47= artition is the separation7 division and assignment of a thing held in common among those to whom it ma* belong. :t presupposes the e1istence of a co-ownership over a propert* between two or more persons. 4he rule allowing partition originates from a wellknown principle embodied in the Civil Code7 that no co-owner shall be obliged to remain the coownership. Because of this rule7 he ma* demand at an* time the partition of the propert* owned in common. :nstances when a co-owner ma* not demand partition at an* timeE !? 4here is an agreement among the coowners to keep the propert* undivided for a certain period of time but not e1ceeding ten *ears (Art. 898); "? <hen partition is prohibited b* the donor or testator for a period not e1ceeding "D *ears (Art. 898); &? <hen partition is prohibited b* law (Art. 898); '? <hen the propert* is not sub%ect to a ph*sical division and to do so would render it unserviceable for the use for which it is intended (Art. 895); (? <hen the condition imposed upon voluntar* heirs before the* can demand partition has not *et been fulfilled (Art. 1.<8). W>O MA' )ILE /OM,LAINTH W>O S>O(LD BE MADE DE)ENDANTS 4he action shall be brought b* the person who has a right to compel the partition of real estate or of an estate composed of personal propert*7 or both real and personal propert*. 4he plaintiff is a person who is supposed to be a co-owner of the propert* or estate sought to be partitioned. 4he defendants are all the co-owners. All the coowners must be %oined. Accordingl*7 an action will not lie without the %oinder of all co-owners and other persons having

21ceptionE there is a right of redemption if the foreclosure is in favor of banks as mortgagees7 whether the foreclosure be %udicial or e1tra%udicial. 4his right of redemption is e1plicitl* provided in Sec. 8: of the Gener" B"n9in3 5") of 2.... <hile the law mentions the redemption period to

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interest in the propert*. All the co-owners7 therefore7 are indispensable parties. MATTERS TO ALLE+E IN T>E /OM,LAINT )OR ,ARTITION 4he plaintiff shall state in his complaint7 the nature and e1tent of his title7 an ade,uate description of the real estate of which partition is demanded7 and shall %oin as defendants all other persons interested in the propert*. 0e must also include a demand for the accounting of the rents7 profits and other income from the propert* which he ma* be entitled to. 4hese cannot be demanded in another action because the* are parts of the cause of action for partition. 4he* will be barred if not set up in the same action pursuant to the rule against splitting a single cause of action. STA+ES IN EVER' A/TION )OR ,ARTITION A reading of the Rules will reveal that there are actuall* three >&? stages in the action7 each of which could be the sub%ect of appealE !? the order of partition where the propert* of the partition is determined9 "? the %udgment as to the accounting of the fruits and income of the propert*9 and &? the %udgment of partition. ORDER O) ,ARTITION AND ,ARTITION B' A+REEMENT During the trial7 the court shall determine whether or not the plaintiff is trul* a co-owner of the propert*7 that there is indeed a co-ownership among the parties7 and that a partition is not legall* proscribed thus ma* be allowed. :f the court so finds that the facts are such that a partition would be in order7 and that the plaintiff has a right to demand partition7 the court will issue an order of partition. 4he court shall order the partition of the propert* among all the parties in interest7 if after trial it finds that the plaintiff has the right to partition. :t was held that this order of partition including an order directing an accounting is final and not interlocutor* and hence7 appealable9 thus7 revoking previous contrar* rulings on the matter. A final order decreeing partition and accounting ma* be appealed b* an* part* aggrieved thereb*. ,artition 9y agr m nt& 4he order of partition is one that directs the parties or co-owners to partition the propert* and the parties ma* make

the partition among themselves b* proper instruments of conve*ance7 if the* agree among themselves. :f the* do agree7 the court shall then confirm the partition so agreed upon b* all of the parties7 and such partition7 together with the order of the court confirming the same7 shall be recorded in the registr* of deeds of the place in which the propert* is situated. 4here alwa*s e1ists the possibilit* that the co-owners are unable to agree on the partition. :f the* cannot partition the propert* among themselves7 the ne1t stage in the action will follow the appointment of commissioners. ,ARTITION B' /OMMISSIONERSH A,,OINTMENT O) /OMMISSIONERS /OMMISSIONERDS RE,ORTH /O(RT A/TION (,ON /OMMISSIONERDS RE,ORT :f the parties are unable to agree upon the partition7 the court shall appoint not more than three >&? competent and disinterested persons as commissioners to make the partition7 commanding them to set off to the plaintiff and to each part* in interest such part and proportion of the propert* as the court shall direct. <hen it is made to appear to the commissioners that the real estate7 or a portion thereof7 cannot be divided without pre%udice to the interests of the parties7 the court ma* order it assigned to one of the parties willing to take the same7 provided he pa*s to the other parties such amounts as the commissioners deem e,uitable7 unless one of the interested parties asks that the propert* be sold instead of being so assigned7 in which case the court shall order the commissioners to sell the real estate at public sale under such conditions and within such time as the court ma* determine. 4he commissioners shall make a full and accurate report to the court of all their proceedings as to the partition7 or the assignment of real estate to one of the parties7 or the sale of the same. Bpon the filing of such report7 the clerk of court shall serve copies thereof on all the interested parties with notice that the* are allowed ten >!D? da*s within which to file ob%ections to the findings of the report7 if the* so desire. #o proceeding had before or conducted b* the commissioners shall pass the title to the propert* or bind the parties until the court shall have accepted the report of the commissioners and rendered %udgment thereon. Bpon the e1piration of the period of ten >!D? da*s referred to in the preceding section7 or even before the e1piration of such period but after the

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interested parties have filed their ob%ections to the report or their statement of agreement therewith7 the court ma*7 upon hearing7 accept the report and render %udgment in accordance therewith9 or7 for cause shown7 recommit the same to the commissioners for further report of facts9 or set aside the report and appoint new commissioners9 or accept the report in part and re%ect it in part9 and ma* make such order and render such %udgment as shall effectuate a fair and %ust partition of the real estate7 or of its value7 if assigned or sold as above provided7 between the several owners thereof. .(D+MENT AND ITS E))E/TS 4he %udgment shall state definitel*7 b* metes and bounds and ade,uate description7 the particular portion of the real estate assigned to each part*7 the effect of the %udgment shall be to vest in each part* to the action in severalt* the portion of the real estate assigned to him. :f the whole propert* is assigned to one of the parties upon his pa*ing to the others the sum or sums ordered b* the court7 the %udgment shall state the fact of such pa*ment and of the assignment of the real estate to the part* making the pa*ment7 and the effect of the %udgment shall be to vest in the part* making the pa*ment the whole of the real estate free from an* interest on the part of the other parties to the action. :f the propert* is sold and the sale confirmed b* the court7 the %udgment shall state the name of the purchaser or purchasers and a definite description of the parcels of real estate sold to each purchaser7 and the effect of the %udgment shall be to vest the real estate in the purchaser or purchasers making the pa*ment or pa*ments7 free from the claims of an* of the parties to the action. A certified cop* of the %udgment shall in either case be recorded in the registr* of deeds of the place in which the real estate is situated7 and the e1penses of such recording shall be ta1ed as part of the costs of the action. ,ARTITION O) ,ERSONAL ,RO,ERT' 4he provisions of this Rule shall appl* to partitions of estates composed of personal propert*7 or of both real and personal propert*7 in so far as the same ma* be applicable. ,RES/RI,TION O) A/TION

rescription of action does not run in favor of a co-owner or co-heir against his coowner or co-heirs as long as there is a recognition of the co-ownership e1pressl* or impliedl*. 4he action for partition cannot be barred b* prescription as long as the co-ownership e1ists. But while the action to demand partition of a co-owned propert* does not prescribe7 a co-owner ma* ac,uire ownership thereof b* prescription where there e1ists a clear repudiation of the co-ownership and the coowners are apprised of the claim of adverse and e1clusive ownership. )OR/IBLE ENTR' AND (NLAW)(L DETAINER ;R(LE 50? 4he actions for forcible entr* and unlawful detainer belong to the class of actions known b* the generic name "ccion inter'ict" >e%ectment? where the issue is the right of ph*sical or material possession of the sub%ect real propert* independent of an* claim of ownership b* the parties involved. Accion 8nterdictal comprises two distinct causes of actionE )OR/IBLE ENTR' ( 6;64;A)834), where one is deprived of ph*sical possession of real propert* b* means of force7 intimidation7 strateg*7 threats or stealth ;)ISTS=H (NLAW)(L DETAINER ( 6&A<=8)3), where one illegall* withholds possession after the e1piration or termination of his right to hold possession under an* contract7 e1press or implied. )OR/IBLE ENTR' 4he possession of the defendant is unlawful from the beginning9 issue is which part* has prior de facto possession9 4he law does not re,uire previous demand for the (NLAW)(L DETAINER 4he possession of the defendant is lawful from the beginning becomes illegal b* reason of the e1piration or termination of his right to the possession of the propert*9 laintiff must first make such demand which is %urisdictional in nature9

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defendant vacate9

to 4he plaintiff need not have been in prior ph*sical possession9

4he plaintiff must prove that he was in prior ph*sical possession of the premises until he was deprived b* the defendant9 and 4he one *ear period is generall* counted from the date of actual entr* on the propert*. A//ION ,(BLI/IANA A plenar* ordinar* civil action for the recover* of the better right of possession >%uridical possession?7 must be filed after the e1piration of one *ear from the accrual of the cause of action or from the unlawful withholding of possession of the realt*. :n other words7 if at the time of the filing of the complaint more than one *ear had elapsed since defendant had turned plaintiff out of possession or defendantLs possession had become illegal7 the action will be not one of forcible entr* or unlawful detainer but an accion 4he basis of the recover* of possession is the plaintiffLs real right of possession or %us possessionis7 which is the right to the possession of the real propert* independent of

ownership. /urisdiction is based on the value of the of the propert* appl*ing "D= and (D= rule >OW TO DETERMINE .(RISDI/TION IN A//ION ,(BLI/IANA AND A//ION REINVINDI/ATORIA 4he actions of forcible entr* and unlawful detainer are within the e1clusive and original %urisdiction of the $4C7 $e4C and $C4C and shall be governed b* the rules on summar* procedure irrespective of the amount of damages or rental sought to be recovered. :n actions for forcible entr*7 two allegations are mandator* for the $4C to ac,uire %urisdictionE !? plaintiff must allege his prior ph*sical possession of the propert*9 and "? he must also allege that he was deprived of his possession b* force7 intimidation7 strateg*7 threat or stealth. :f the alleged dispossession did not occur b* an* of these means7 the proper recourse is to file not an action for forcible entr* but a plenar* action to recover possession. Both actions must be brought within one *ear from the date of actual entr* on the land7 in case of forcible entr*7 and from the date of last demand7 in case of unlawful detainer. /urisdiction is determined b* the allegations of the complaint. 4he mere raising of the issue of tenanc* does not automaticall* divest the court of %urisdiction because the %urisdiction of the court is determined b* the allegations of the complaint and is not dependent upon the defenses set up b* the defendant. W>O MA' INSTIT(TE T>E A/TION AND W>ENH A+AINST W>OM T>E A/TION MA' BE MAINTAINED A person deprived of the possession of an* land or building b* force7 intimidation7 threat7 strateg*7 or stealth7 or a lessor7 vendor7 vendee7 or other person against whom the possession of an* land or building is unlawfull* withheld after the e1piration or termination of the right to hold possession7 b* virtue of an* contract7 e1press or implied7 or the legal representatives or assigns of an* such lessor7 vendor7 vendee7 or other person7 ma*7 at an* time within one >!? *ear after such unlawful deprivation or withholding of possession7 bring an action in the proper

4he one-*ear period is counted from the date of last demand.

A//ION REINVINDI/ATORIA An action for the recover* of the e1ercise of ownership7 particularl* recover* of possession as an attribute or incident of ownership9

4he basis for the recover* of possession is ownership itself.

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$unicipal 4rial Court against the person or persons unlawfull* withholding or depriving of possession7 or an* person or persons claiming under them7 for the restitution of such possession7 together with damages and costs. Bnless otherwise stipulated7 such action b* the lessor shall be commenced onl* after demand to pa* or compl* with the conditions of the lease and to vacate is made upon the lessee7 or b* serving written notice of such demand upon the person found on the premises7 or b* posting such notice on the premises if no person be found thereon7 and the lessee fails to compl* therewith after fifteen >!(? da*s in the case of land or five >(? da*s in the case of buildings. ,LEADIN+S ALLOWED 4he onl* pleadings allowed to be filed are the complaint7 compulsor* counterclaim and crossclaim pleaded in the answer7 and the answers thereto. All pleadings shall be verified. A/TION ON T>E /OM,LAINT 4he court ma*7 from an e1amination of the allegations in the complaint and such evidence as ma* be attached thereto7 dismiss the case outright on an* of the grounds for the dismissal of a civil action which are apparent therein. :f no ground for dismissal is found7 it shall forthwith issue summons. W>EN DEMAND IS NE/ESSAR' Bnless there e1ists a stipulation to the contrar*7 an unlawful detainer case shall be commenced onl* after the demand to pa* or compl* with the conditions of the lease and to vacate is made upon the lessee. 4he re,uirement for a demand implies that the mere failure of the occupant to pa* rentals or his failure to compl* with the conditions of the lease does not ipso facto render his possession of the premises unlawful. :t is the failure to compl* with the demand that vests upon the lessor a cause of action. 4he demand ma* be in the form of a written notice served upon the person found in the premises. 4he demand ma* also be made b* posting a written notice on the premises if no person can be found thereon. :t has been ruled7 however7 that the demand upon a tenant ma* be oral. Sufficient evidence must be adduced to show that there was indeed a demand like

testimonies from disinterested and unbiased witnesses. ,RELIMINAR' IN.(N/TION AND ,RELIMINAR' MANDATOR' IN.(N/TION 4he court ma* grant preliminar* in%unction7 in accordance with the provisions of *u e 5<7 to prevent the defendant from committing further acts of dispossession against the plaintiff. A possessor deprived of his possession through forcible entr* or unlawful detainer ma*7 within five >(? da*s from the filing of the complaint7 present a motion in the action for forcible entr* or unlawful detainer for the issuance of a writ of preliminar* mandator* in%unction to restore him in his possession. 4he court shall decide the motion within thirt* >&D? da*s from the filing thereof. RESOLVIN+ DE)ENSE O) OWNERS>I, 4he assertion b* the defendant of ownership over the disputed propert* does not serve to divest the inferior court of its %urisdiction. 4he defendant cannot deprive the court of %urisdiction b* merel* claiming ownership of the propert* involved. <hen the defendant raises the issue of ownership7 the court ma* resolve the issue of ownership onl* under the following conditionsE !? <hen the issue of possession cannot be resolved without resolving the issue of ownership9 and "? 4he issue of ownership shall be resolved onl* to determine the issue of possession. Such %udgment would not bar an action between the same parties respecting title to the land or building. 4he resolution of the $e4C on the ownership of the propert* is merel* provisional or interlocutor*. An* ,uestion involving the issue of ownership should be raised and resolved in a separate action brought specificall* to settle the ,uestion with finalit*. >OW TO STA' T>E IMMEDIATE E*E/(TION O) .(D+MENT Defendant must take the following steps to sta* the e1ecution of the %udgmentE !? erfect an appeal9 "? 5ile a supersedeas bond to pa* for the rents7 damages and costs accruing down to the time of the %udgment appealed from9 and

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&? Deposit periodicall* with the R4C7 during


the pendenc* of the appeal7 the ad%udged amount of rent due under the contract or if there be no contract7 the reasonable value of the use and occupation of the premises. 21ceptions to the ruleE !? <here dela* in the deposit is due to fraud7 accident7 mistake7 or e1cusable negligence9 "? <here supervening events occur subse,uent to the %udgment bringing about a material change in the situation of the parties which makes e1ecution ine,uitable9 and &? <here there is no compelling urgenc* for the e1ecution because it is not %ustified b* the circumstances. S(MMAR' ,RO/ED(RE? ,RO>IBITED ,LEADIN+S 5orcible entr* and unlawful detainer actions are summar* in nature designed to provide for an e1peditious means of protecting actual possession or the right to possession of the propert* involved. 4hese actions shall both fall under the coverage of the Rules of Summar* rocedure irrespective of the amount of damages or unpaid rental sought to be recovered. rohibited pleadings and motionsE a? $otion to dismiss the complaint e1cept on the ground of lack of %urisdiction over the sub%ect matter7 or failure to compl* with section !"9 b? $otion for a bill of particulars9 c? $otion for new trial7 or for reconsideration of a %udgment7 or for reopening of trial9 d? etition for relief from %udgment9 e? $otion for e1tension of time to file pleadings7 affidavits or an* other paper9 f? $emoranda9 g? etition for certiorari7 mandamus7 or prohibition against an* interlocutor* order issued b* the court9 h? $otion to declare the defendant in default9 i? Dilator* motions for postponement9 %? Repl*9 k? 4hird-part* complaints9 l? :nterventions

Contempt is a disregard of7 or disobedience to the rules or orders of a %udicial bod*7 or an interruption of its proceedings b* disorderl* behavior or insolent language7 in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such bod*. Contempt of court is disobedience to the court b* acting in opposition to its authorit*7 %ustice and dignit*. :t signifies not onl* a willful disregard or disobedience of the courtLs orders but also conduct tending to bring the authorit* of the court and the administration of law into disrepute or7 in some manner to impede the due administration of %ustice. 4he reason for the power to punish for contempt is that respect of the courts guarantees the stabilit* of their institution. <ithout such guarantee7 said institution would be resting on shak* foundation. :t is inherent in all courts9 its e1istence is essential to the preservation of order in %udicial proceedings and to the enforcement of %udgments7 orders and mandates of the courts7 and conse,uentl*7 to the due administration of %ustice. /ont m-t -roc #ings !as #%a$ :%nctionC !? ;indication of public interest b* punishment of contemptuous conduct9 and "? Coercion to compel the contemnor to do what the law re,uires him to uphold the power of the Court7 and also to secure the rights of the parties to a suit awarded b* the Court. 8INDS O) /ONTEM,TH ,(R,OSE AND NAT(RE O) EA/> !? Civil or Criminal7 depending on the nature and effect of the contemptuous act. "? Direct or indirect7 according to the manner of commission. /IVIL /ONTEM,T :t is the failure to do something ordered to be done b* a court or a %udge for the benefit of the opposing part* therein and is therefore and offense against the part* in whose behalf the violated order was /RIMINAL /ONTEM,T :t is a conduct directed against the authorit* and dignit* of the court or a %udge acting %udiciall*9 it is an obstructing the administration of %ustice which tends to bring the court into disrepute or disrespect9

/ONTEM,T ;R(LE 51=

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made9 4he purpose is to compensate for the benefit of a part*9 4he rules of procedure governing contempt proceedings or criminal prosecutions ordinaril* are inapplicable to civil contempt proceedings.

4he purpose is to punish7 to vindicate the authorit* of the court and protect its outraged dignit*9 Should be conducted in accordance with the principles and rules applicable to criminal cases7 insofar as such procedure is consistent with the summar* nature of contempt proceedings. INDIRE/T /ONTEM,T

DIRE/T /ONTEM,T :n general is committed in the presence of or so near the court or %udge while performing the %udicial function as to obstruct or interrupt the proceedings before it9 Acts constitutin3 'irect conte$!t "re0 a? $isbehavior in the presence of or so near the court as to obstruct or interrupt the proceedings before it9 b? Disrespect toward the court9 c? 3ffensive personalities towards others9 d? Refusal to be sworn as a witness or to answer as a witness9 e? Refusal to subscribe an affidavit or deposition when lawfull*

:t is not committed in the presence of the court7 but done at a distance which tends to belittle7 degrade7 obstruct or embarrass the court and %ustice9

re,uired to do so9 f? Acts of a part* or a counsel which constitute willful and deliberate forum shopping9 g? Bnfounded accusations or allegations or words in a pleading tending to embarrass the court or to bring it into disrepute.

&?

'?

(?

Acts constitutin3 in'irect conte$!t "re0 After a charge in writing has been filed7 and an opportunit* given to the respondent to comment thereon within such period as ma* be fi1ed b* the court and to be heard b* himself or counsel7 a person guilt* of an* of the following acts ma* be punished for indirect contemptE !? $isbehavior an officer of a court in the performance of his official duties or in his official transactions9 "? Disobedience of or resistance to a lawful writ7 process7 order7 or %udgment of a court7 including the act of a person who7 after being dispossessed or e%ected from an* real propert*

)? +?

b* the %udgment or process of an* court of competent %urisdiction7 enters or attempts or induces another to enter into or upon such real propert*7 for the purpose of e1ecuting acts of ownership or possession7 or in an* manner disturbs the possession given to the person ad%udged to be entitled thereto9 An* abuse of or an* unlawful interference with the processes or proceedings of a court not constituting direct contempt under section ! of this Rule9 An* improper conduct tending7 directl* or indirectl*7 to impede7 obstruct7 or degrade the administration of %ustice9 Assuming to be an attorne* or an officer of a court7 and acting as such without authorit*9 5ailure to obe* a subpoena dul* served9 4he rescue7 or attempted rescue7 of a person or propert* in the custod* of an officer b* virtue of an order or process of a court held b* him.

5ailure b* counsel to inform the court of the death of his client constitutes indirect contempt within the purview of Sec. 3, *u e :1, since it constitutes an improper conduct tending to impede the administration of %ustice.

REMED' A+AINST INDIRE/T /ONTEM,TH ,ENALT' 4he punishment for indirect contempt depends upon the level of the court against which the act was committed9

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a? <here the act was committed against an R4C or a court of e,uivalent or higher rank7 he ma* be punished b* a fine not e1ceeding &D7DDD pesos or imprisonment not e1ceeding ) months7 or both9 b? <here the act was committed against a lower court7 he ma* be punished b* a fine not e1ceeding (7DDD pesos or imprisonment not e1ceeding one month7 or both. Aside from the applicable penalties7 if the contempt consists in the violation of a writ of in%unction7 4R3 or status ,uo order7 he ma* also be ordered to make complete restitution to the part* in%ured b* such violation of the propert* involved or such amount as ma* be alleged and proved9 c? <here the act was committed against a person or entit* e1ercising ,uasi-%udicial functions7 the penalt* imposed shall depend upon the provisions of the law which authori@es a penalt* for contempt against such persons or entities. 4he person ad%udged in indirect contempt ma* appeal from the %udgment or final order of the court in the same manner as in criminal cases. 4he appeal will not however have the effect of suspending the %udgment if the person ad%udged in contempt does not file a bond in an amount fi1ed b* the court from which the appeal is taken. 4his bond is conditioned upon his performance of the %udgment or final order if the appeal is decided against. >OW /ONTEM,T ,RO/EEDIN+S ARE /OMMEN/ED roceedings for indirect contempt ma* be initiated $otu !ro!rio b* the court against which the contempt was committed b* an order or an* other formal charge re,uiring the respondent to show cause wh* he should not be punished for contempt. :n all other cases7 charges for indirect contempt shall be commenced b* a verified petition with supporting particulars and certified true copies of documents or papers involved therein7 and upon full compliance with the re,uirements for filing initiator* pleadings for civil actions in the court concerned. :f the contempt charges arose out of or are related to a principal action pending in the

court7 the petition for contempt shall allege that fact but said petition shall be docketed7 heard and decided separatel*7 unless the court in its discretion orders the consolidation of the contempt charge and the principal action for %oint hearing and decision. W>EN IM,RISONMENT S>ALL BE IM,OSED <hen the contempt consists in the refusal or omission to do an act which is *et in the power of the respondent to perform7 he ma* be imprisoned b* order of the court concerned until he performs it. :ndefinite incarceration ma* be resorted to where the attendant circumstances are such that the non-compliance with the court order is an utter disregard of the authorit* of the court which has then no other recourse but to use its coercive power. <hen a person or part* is legall* and validl* re,uired b* a court to appear before it for a certain purpose7 and when that re,uirement is disobe*ed7 the onl* remed* left for the court is to use force to bring the person or part* before it. 4he punishment is imposed for the benefit of a complainant or a part* to a suit who has been in%ured aside from the need to compel performance of the orders or decrees of the court7 which the contemnor refuses to obe* although able to do so. :n effect7 it is within the power of the person ad%udged guilt* of contempt to set himself free.

/ONTEM,T A+AINST A(ASI<.(DI/IAL BODIES 4he rules on contempt appl* to contempt committed against persons or entities e1ercising ,uasi-%udicial functions or in case there are rules for contempt adopted for such bodies or entities pursuant to law7 *u e :1 shall appl* suppletoril*. Auasi-%udicial bodies that have the power to cite persons for indirect contempt can onl* do so b* initiating them in the proper R4C. :t is not within their %urisdiction and competence to decide the indirect contempt cases. 4he R4C of the place where contempt has been committed shall have %urisdiction over the charges for indirect contempt that ma* be filed. 107=

,E/IAL ,RO/EEDIN+S

;R%$ s 52 S%9@ ct Matt rs o: S- cia$ ,roc #ingsC

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/AT/> A+ED S>AR/

!? "? &? '? (? )? +? -?

Change of #ame Adoption 4rustees Constitution of 5amil* 0ome 0ospitali@ation of :nsane ersons Absence and Death7 Declaration of 8uardianship and Custod* of Children 2scheat

.? >;oluntar*? Dissolution of Corporation !D?Settlement of 2state of Deceased ersons !!?0abeas Corpus !"?>/udicial? Approval of ;oluntar* Recognition of
$inor #atural Children

!&?Rescission and Revocation of Adoption !'?Cancellation or Correction of 2ntries in the


Civil Registr* VEN(E IN .(DI/IAL SETTLEMENT O) ESTATE 4he residence of the decedent at the time of his death is determinative of the venue of the proceeding. :f he was a resident (inh"%it"nt, )hether citiHen or " ien) of the hilippines7 venue is laid e1clusivel* in the province of his residence at the time of his death. Residence means his personal7 actual7 or ph*sical habitation7 his actual residence or place of abode. :t is onl* where the decedent was a nonresident of the hilippines at the time of his death that venue lies in an* province in which he had an estate7 4he ,uestion of residence is determinative onl* of the venue and does not affect the %urisdiction of the court. ;enue is waivable. :f instituted in two courts7 the court in which the proceeding was first filed has e1clusive %urisdiction to resolve the issue. E*TENT O) .(RISDI/TION O) ,ROBATE /O(RT 4he main function of a probate court is to settle and li,uidate the estates of deceased person either summaril* or through the process of administration. 4he probate court e1ercises limited %urisdiction7 thus it has no power to take cogni@ance of and determine the issue of title to propert* claimed b* a third person adversel* to the decedent unless the claimant and all other parties have legal interest in the propert* consent7 e1pressl* or impliedl*7 to the submission of the ,uestion to the probate court. :n that case7 if the probate court allows the introduction of evidence on ownership it is for the sole purpose of determining whether the sub%ect properties

Special roceedings is an application or proceeding to establish the status or right of a part*7 or a particular fact7 generall* commenced b* application7 petition or special form of pleading as ma* be provided for b* the particular rule or law. SETTLEMENT O) ESTATE O) DE/EASED ,ERSONS ;R%$ s 51 71=

SETTLEMENT O) ESTATE O) DE/EASED ,ERSONS VEN(E AND ,RO/ESS ;R(LE 51= W>I/> /O(RT >AS .(RISDI/TION :f the decedent is an inhabitant of the hilippines at the time of his death7 whether a citi@en or an alien7 his will shall be proved7 or letters of administration granted7 and his estate settled7 in the R4C in the province in which he resides at the time of his death7 and if he is an inhabitant of a foreign countr*7 the R4C of an* province in which he had his estate. 4he court first taking cogni@ance of the settlement of the estate of a decedent7 shall e1ercise %urisdiction to the e1clusion of all other courts. Bnder RA +).!7 the law e1panding the %urisdiction of the inferior courts7 $4C7 $e4C and $C4C shall e1ercise e1clusive original %urisdiction over probate proceedings7 testate and intestate7 where the value of the estate does not e1ceed ,100?000 >outside $etro $anila? or where such estate does not e1ceed ,200?000 >in $etro $anila?. 4he %urisdiction of the R4C is limited to the settlement and ad%udication of properties of the deceased and cannot e1tend to collateral matters.

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should be included in the inventor*7 which is within the probate courtCs competence. 4he determination is onl* provisional sub%ect to a proper action in a separate action to resolve the title. 4he %urisdiction of the probate court merel* relates to matters having to do with the settlement of the estate and the probate of wills7 the appointment and removal of administrators7 e1ecutors7 guardians and trustees. 4he ,uestion of ownership is7 as a rule7 an e1traneous matter which the probate court cannot resolve with finalit*. ,OWERS AND D(TIES O) ,ROBATE /O(RT 4he powers and duties of a probate courtE !? Distribute shares9 "? Determine the legal heirs9 &? :ssue warrants and processes to secure attendance of witnesses9 '? Determine and rile upon issues relating to the settlement of the estate7 such as administration7 li,uidation7 and distribution of the estate9 and (? Determine the followingE a? 0eirs of the decedent9 b? Recognition of natural child9 c? ;alidit* of the disinheritance effected b* testator9 d? Status of a woman who claims to be the lawful wife of the decedent9 e? ;alidit* of waiver of hereditar* heirs9 f? Status of each heir9 g? <hatever propert* in inventor* is con%ugal or e1clusive propert* of deceased spouse9 and h? $atters incidental or collateral to the settlement and distribution of the estate. S(MMAR' SETTLEMENT O) ESTATES ;R(LE 52= Summar* settlement of estate is a %udicial proceeding wherein7 without the appointment of e1ecutor or administrator7 and without dela*7 the competent court summaril* proceeds to value the estate of the decedent9 ascertain his debts and order pa*ment thereof9 allow his will if an*9 declare his heirs7 devisee and legatees9 and distribute his net estate among his known heirs7

devisees7 and legatees7 who shall thereupon be entitled to receive and enter into the possession of the parts of the estate so awarded to them7 respectivel*. E*TRA.(DI/IAL SETTLEMENT B' A+REEMENT BETWEEN >EIRS W>EN ALLOWED :f the decedent left no will and no debts and the heirs are all of age7 or the minors are represented b* their %udicial or legal representatives dul* authori@ed for the purpose7 the parties ma*7 without securing letters of administration7 divide the estate among themselves as the* see fit b* means of a public instrument filed in the office of the register of deeds7 and should the* disagree7 the* ma* do so in an ordinar* action of partition. :f there is onl* one heir7 he ma* ad%udicate to himself the entire estate b* means of an affidavit filed in the office of the register of deeds. 4he parties to an e1tra%udicial settlement7 whether b* public instrument or b* stipulation in a pending action for partition7 or the sole heir who ad%udicates the entire estate to himself b* means of an affidavit shall file7 simultaneousl* with and as a condition precedent to the filing of the public instrument7 or stipulation in the action for partition7 or of the affidavit in the office of the register of deeds7 a bond with the said register of deeds7 in an amount e,uivalent to the value of the personal propert* involved as certified to under oath b* the parties concerned and conditioned upon the pa*ment of an* %ust claim that ma* be filed under section ' of this rule. 4he fact of the e1tra%udicial settlement or administration shall be published in a newspaper of general circulation in the manner provided in the ne1t succeeding section9 but no e1tra%udicial settlement shall be binding upon an* person who has not participated therein or had no notice thereof. 21tra%udicial partition of the estate shall be valid when the following conditions concurE !? 4he decedent left no will9 "? 4he decedent left no debts7 or if there were debts left7 all had been paid9 &? 4he heirs are all of age or if the* are minors7 the latter are represented b* their %udicial guardian or legal representative9 '? 4he partition was made b* means of a public instrument or affidavit dul* filed with the Register of Deeds9 and

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(? 4he fact of the e1tra%udicial settlement or administration shall be published in a newspaper of general circulation. TWO<'EAR ,RES/RI,TIVE ,ERIOD :t shall be presumed that the decedent left no debts if no creditor files a petition for letters of administration within two >"? *ears after the death of the decedent. :f it shall appear at an* time within two >"? *ears after the settlement and distribution of an estate in accordance with the provisions of either of the first two sections of this rule7 that an heir or other person has been undul* deprived of his lawful participation in the estate7 such heir or such other person ma* compel the settlement of the estate in the courts in the manner hereinafter provided for the purpose of satisf*ing such lawful participation. And if within the same time of two >"? *ears7 it shall appear that there are debts outstanding against the estate which have not been paid7 or that an heir or other person has been undul* deprived of his lawful participation pa*able in mone*7 the court having %urisdiction of the estate ma*7 b* order for that purpose7 after hearing7 settle the amount of such debts or lawful participation and order how much and in what manner each distributee shall contribute in the pa*ment thereof7 and ma* issue e1ecution7 if circumstances re,uire7 against the bond provided in the preceding section or against the real estate belonging to the deceased7 or both. Such bond and such real estate shall remain charged with a liabilit* to creditors7 heirs7 or other persons for the full period of two >"? *ears after such distribution7 notwithstanding an* transfers of real estate that ma* have been made. A))IDAVIT O) SEL)<AD.(DI/ATION B' SOLE >EIR :f there is onl* one heir7 he ma* ad%udicate to himself the entire estate b* means of an affidavit filed in the office of the register of deeds. S(MMAR' SETTLEMENT O) ESTATES O) SMALL VAL(EH W>EN ALLOWED <henever the gross value of the estate of a deceased person7 whether he died testate or intestate7 does not e1ceed ten thousand pesos7 and that fact is made to appear to the R4C having %urisdiction of the estate b* the petition of

an interested person and upon hearing7 which shall be held not less than >!? month nor more than three >&? months from the date of the last publication of a notice which shall be published once a week for three >&? consecutive weeks in a newspaper of general circulation in the province7 and after such other notice to interested persons as the court ma* direct7 the court ma* proceed summaril*7 without the appointment of an e1ecutor or administrator7 and without dela*7 to grant7 if proper7 allowance of the will7 if an* there be7 to determine who are the persons legall* entitled to participate in the estate7 and to apportion and divide it among them after the pa*ment of such debts of the estate as the court shall then find to be due9 and such persons7 in their own right7 if the* are of lawful age and legal capacit*7 or b* their guardians or trustees legall* appointed and ,ualified7 if otherwise7 shall thereupon be entitled to receive and enter into the possession of the portions of the estate so awarded to them respectivel*. 4he court shall make such order as ma* be %ust respecting the costs of the proceedings7 and all orders and %udgments made or rendered in the course thereof shall be recorded in the office of the clerk7 and the order of partition or award7 if it involves real estate7 shall be recorded in the proper registerTs office. 4he court7 before allowing a partition7 ma* re,uire the distributees7 if propert* other than real is to be distributed7 to file a bond in an amount to be fi1ed b* court7 conditioned for the pa*ment of an* %ust claim. REMEDIES O) A++RIEVED ,ARTIES A)TER E*TRA<.(DI/IAL SETTLEMENT O) ESTATE !? 4he creditor ma* ask for administration of enough propert* of the estate sufficient to pa* the debt7 but the heirs cannot prevent such administration b* pa*ing the obligation. "? <here the estate has been summaril* settled7 the unpaid creditor ma*7 within the two-*ear period7 file a motion in the court wherein such summar* settlement was for the pa*ment of his credit. After the lapse of the two-*ear period7 an ordinar* action ma* be instituted against the distributees within the statute of limitations7 but not against the bond. &? 4he action to annul a deed of e1tra%udicial settlement on the ground of fraud should be filed within four *ears from the discover* of the fraud.

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,ROD(/TION AND ,ROBATE O) WILL ;R(LE 53= NAT(RE O) ,ROBATE ,RO/EEDIN+ robate of a will is a proceeding in re$. :t cannot be dispensed with and substituted b* another proceeding7 %udicial or e1tra%udicial7 without offending public polic*. :t is mandator* as no will shall pass either real or personal propert* unless proved and allowed in accordance with the Rules. :t is imprescriptible7 because it is re,uired b* public polic* and the state could not have intended to defeat the same b* appl*ing thereto the statute of limitation of actions.

A petition for the allowance of a will must show7 so far as known to the petitionerE !? 4he %urisdictional facts9 "? 4he names7 ages7 and residences of the heirs7 legatees7 and devisees of the testator or decedent9 &? 4he probable value and character of the propert* of the estate9 '? 4he name of the person for whom letters are pra*ed9 (? :f the will has not been delivered to the court7 the name of the person having custod* of it. But no defect in the petition shall render void the allowance of the will7 or the issuance of letters testamentar* or of administration with the will anne1ed. +RO(NDS )OR DISALLOWIN+ A WILL 4he will shall be disallowed in an* of the following cases9 !? :f not e1ecuted and attested as re,uired b* law9 "? :f the testator was insane7 or otherwise mentall* incapable to make a will7 at the time of its e1ecution9 &? :f it was e1ecuted under duress7 or the influence of fear7 or threats9 '? :f it was procured b* undue and improper pressure and influence7 on the part of the beneficiar*7 or of some other person for his benefit9 (? :f the signature of the testator was procured b* fraud or trick )? :f the testator acted b* mistake or did not intend that the instrument he signed should be his will at the time of affi1ing his signature thereto. RE,ROBATEH REA(ISITES BE)ORE WILL ,ROVED O(TSIDE ALLOWED IN T>E ,>ILI,,INESH E))E/TS O) ,ROBATE <ill proved outside hilippines ma* be allowed here. <ills proved and allowed in a foreign countr*7 according to the laws of such countr*7 ma* be allowed7 filed7 and recorded b* the proper Court of 5irst :nstance in the hilippines. :f it appears at the hearing that the will should be allowed in the hilippines7 the court shall so allow it7 and a certificate of its allowance7 signed b* the %udge7 and attested b* the seal of the court7 to which shall be attached a cop* of the will7 shall be filed and recorded b* the clerk7 and the

W>O MA' ,ETITION )OR ,ROBATEH ,ERSONS ENTITLED TO NOTI/E An* e1ecutor7 devisee7 or legatee named in a will7 or an* other person interested in the estate7 ma*7 at an* time after the death of the testator7 petition the court having %urisdiction to have the will allowed7 whether the same be in his possession or not7 or is lost or destro*ed. 4he testator himself ma*7 during his lifetime7 petition the court for the allowance of his will. 4he court shall also cause copies of the notice of the time and place fi1ed for proving the will to be addressed to the designated or other known heirs7 legatees7 and devisees of the testator resident in the hilippines at their places of residence7 and deposited in the post office with the postage thereon prepaid at least twent* >"D? da*s before the hearing7 if such places of residence be known. A cop* of the notice must in like manner be mailed to the person named as e1ecutor7 if he be not be petitioner9 also7 to an* person named as co-e1ecutor not petitioning7 if their places of residence be known. ersonal service of copies of the notice at least ten >!D? da*s before the da* of hearing shall be e,uivalent to mailing. :f the testator asks for the allowance of his own will7 notice shall be sent onl* to his compulsor* heirs. ALLOWAN/E OR DISALLOWAN/E O) WILL ;R(LE 54= /ONTENTS O) ,ETITION )OR ALLOWAN/E O) WILL

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will shall have the same effect as if originall* proved and allowed in such court. <hen a will is thus allowed7 the court shall grant letters testamentar* or letters of administration with the will anne1ed7 and such letters testamentar* or of administration7 shall e1tend to all the estate of the testator in the hilippines. Such estate7 after the pa*ment of %ust debts and e1penses of administration7 shall be disposed of according to such will7 so far as such will ma* operate upon it9 and the residue7 if an*7 shall be disposed of as is provided b* law in cases of estates in the hilippines belonging to persons who are inhabitants of another state or countr*. :f the court is satisfied7 upon proof taken and filed7 that the will was dul* e1ecuted7 and that the testator at the time of its e1ecution was of sound and disposing mind7 and not acting under duress7 menace7 and undue influence7 or fraud7 a certificate of its allowance7 signed b* the %udge7 and attested b* the seal of the court shall be attached to the will and the will and certificate filed and recorded b* the clerk. Attested copies of the will devising real estate and of certificate of allowance thereof7 shall be recorded in the register of deeds of the province in which the lands lie. 4he general rule universall* recogni@ed is that administration e1tends onl* to the assets of the decedent found within the state or countr* where it was granted7 so that an administrator appointed in one state or countr* has no power over the propert* in another state or countr*. <hen a person dies intestate owning propert* in the countr* of his domicile as well as in foreign countr*7 administration shall be had in both countries. 4hat which is granted in the %urisdiction of the decedentCs domicile is termed the principal administration7 while an* other administration is termed ancillar* administration. 4he ancillar* administration is proper whenever a person dies leaving in a countr* other than that of his domicile7 propert* to be administered in the nature of assets of the decedent7 liable for his individual debts or to be distributed among his heirs. LETTERS TESTAMENTAR' AND O) ADMINISTRATION ;R(LE 56= Letters testamentar* is the appointment issued b* a probate court7 after the will has been admitted to probate7 to the e1ecutor named in

the will to administer the estate of the deceased testator7 provided the e1ecutor named in the will is competent7 accepts the trust and gives a bond. W>EN AND TO W>OM LETTERS O) ADMINISTRATION +RANTED #o person is competent to serve as e1ecutor or administrator whoE a? :s a minor9 b? :s not a resident of the hilippines9 and c? :s in the opinion of the court unfit to e1ecute the duties of the trust b* reason of drunkenness7 improvidence7 or want of understanding or integrit*7 or b* reason of conviction of an offense involving moral turpitude. 4he e1ecutor of an e1ecutor shall not7 as such7 administer the estate of the first testator. A married woman ma* serve as e1ecutri1 or administratri17 and the marriage of a single woman shall not affect her authorit* so to serve under a previous appointment. <hen a will has been proved and allowed7 the court shall issue letters testamentar* thereon to the person named as e1ecutor therein7 if he is competent7 accepts the trust7 and gives bond as re,uired b* these rules. <hen all of the e1ecutors named in a will cannot act because of incompetenc*7 refusal to accept the trust7 or failure to give bond7 on the part of one or more of them7 letters testamentar* ma* issue to such of them as are competent7 accept and give bond7 and the* ma* perform the duties and discharge the trust re,uired b* the will. :f no e1ecutor is named in the will7 or the e1ecutor or e1ecutors are incompetent7 refuse the trust7 or fail to give bond7 or a person dies intestate7 administration shall be grantedE a? 4o the surviving husband or wife7 as the case ma* be7 or ne1t of kin7 or both7 in the discretion of the court7 or to such person as such surviving husband or wife7 or ne1t of kin7 re,uests to have appointed7 if competent and willing to serve9 b? :f such surviving husband or wife7 as the case ma* be7 or ne1t of kin7 or the person selected b* them7 be incompetent or unwilling7 or if the husband or widow7 or ne1t of kin7 neglects for thirt* >&D? da*s after the death of the person to appl* for administration or to re,uest that administration be granted to some other

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person7 it ma* be granted to one or more of the principal creditors7 if competent and willing to serve9 c? :f there is no such creditor competent and willing to serve7 it ma* be granted to such other person as the court ma* select. ORDER O) ,RE)EREN/EH ,RIORIT' IN SELE/TIN+ AN ADMINISTRATOR !? Surviving spouse7 or ne1t of kin7 or both7 or person as such surviving spouse7 or ne1t of kin7 re,uests9 "? 3ne or more of the principal creditors J if such surviving spouse7 or ne1t of kin7 or the person selected7 be incompetent or unwilling7 or if the* neglect for &D da*s after the death of the decedent to appl* for administration or to re,uest that administration be granted to some other person7 it ma* be granted to7 if competent and willing to serve9 &? Such other person as the court ma* select. O,,OSITION TO ISS(AN/E O) LETTERS TESTAMENTAR'H SIM(LTANEO(S )ILIN+ O) ,ETITION )OR ADMINISTRATION An* person interested in a will ma* state in writing the grounds wh* letters testamentar* should not issue to the persons named therein e1ecutors7 or an* of them7 and the court7 after hearing upon notice7 shall pass upon the sufficienc* of such grounds. A petition ma*7 at the same time7 be filed for letters of administration with the will anne1ed. ,OWERS AND D(TIES O) E*E/(TORS AND ADMINISTRATORSH RESTRI/TIONS ON T>E ,OWERS ;R(LE 62= An 2R2CB43R is the person nominated b* a testator to carr* out the directions and re,uests in his will and to dispose of his propert* according to his testamentar* provisions after his death. An AD$:#:S4RA43R is person appointed b* the court7 in accordance with the governing statute7 to administer and settle intestate estate and such testate estate as no competent e1ecutor was designated b* the testator. 4he e1ecutor or administrator of the estate of a deceased partner shall at all times have access to7 and ma* e1amine and take copies of7 books and papers relating to the partnership business7 and ma* e1amine and make invoices of the propert* belonging to such partnership9 and the

surviving partner or partners7 on re,uest7 shall e1hibit to him all such books7 papers7 and propert* in their hands or control. 3n the written application of such e1ecutor or administrator7 the court having %urisdiction of the estate ma* order an* such surviving partner or partners to freel* permit the e1ercise of the rights7 and to e1hibit the books7 papers7 and propert*7 as in this section provided7 and ma* punish an* partner failing to do so for contempt. An e1ecutor or administrator shall maintain in tenantable repair the houses and other structures and fences belonging to the estate7 and deliver the same in such repair to the heirs or devisees when directed so to do b* the court. An e1ecutor or administrator shall have the right to the possession and management of the real as well as the personal estate of the deceased so long as it is necessar* for the pa*ment of the debts and the e1penses of administration. An administrator of an intestate cannot e1ercise the right of legal redemption over a portion of the propert* owned in common sold b* one of the other co-owners since this is not within the powers of administration. <here the estate of a deceased person is alread* the sub%ect of a testate or intestate proceeding7 the administrator cannot enter into an* transaction involving it without an* prior approval of the Court. 4he right of an e1ecutor or administrator to the possession and management of the real and personal properties of the deceased is not absolute and can onl* be e1ercised so long as it is necessar* for the pa*ment of the debts and e1penses of administration. A,,OINTMENT O) S,E/IAL ADMINISTRATOR <hen there is dela* in granting letters testamentar* or of administration b* an* cause including an appeal from the allowance or disallowance of a will7 the court ma* appoint a special administrator to take possession and charge of the estate of the deceased until the ,uestions causing the dela* are decided and e1ecutors or administrators appointed. +RO(NDS )OR REMOVAL O) ADMINISTRATOR Administration revoked if will discovered - :f after letters of administration have been granted on

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the estate of a decedent as if he had died intestate7 his will is proved and allowed b* the court7 the letters of administration shall be revoked and all powers thereunder cease7 and the administrator shall forthwith surrender the letters to the court7 and render his account within such time as the court directs. roceedings for the issuance of letters testamentar* or of administration under the will shall be as hereinbefore provided. :f an e1ecutor or administrator neglects to render his account and settle the estate according to law7 or to perform an order or %udgment of the court7 or a dut* e1pressl* provided b* these rules7 or absconds7 or becomes insane7 or otherwise incapable or unsuitable to discharge the trust7 the court ma* remove him7 or7 in its discretion7 ma* permit him to resign. <hen an e1ecutor or administrator dies7 resigns7 or is removed the remaining e1ecutor or administrator ma* administer the trust alone7 unless the court grants letters to someone to act with him. :f there is no remaining e1ecutor or administrator7 administration ma* be granted to an* suitable person (Sec. 2, *u e <2). /LAIMS A+AINST T>E ESTATE ;R(LE 64= Administration is for the purpose of li,uidation of the estate and distribution of the residue among the heirs and legatees. Li,uidation means the determination of all the assets of the estate and pa*ment of all debts and e1penses. 4he purpose of presentation of claims against decedents of the estate in the probate court is to protect the estate of deceased persons. 4hat wa*7 the e1ecutor or administrator will be able to e1amine each claim and determine whether it is a proper one which should be allowed. 5urther7 the primar* ob%ect of the provisions re,uiring presentation is to apprise the administrator and the probate court of the e1istence of the claim so that a proper and timel* arrangement ma* be made for its pa*ment in full or b* pro rata portion in the due course of the administration7 inasmuch as upon the death of a person7 his entire estate is burdened with the pa*ment of all his debts and no creditor shall en%o* an* preference or priorit*9 all of them shall share pro rata in the li,uidation of the estate of the deceased. TIME WIT>IN W>I/> /LAIMS S>ALL BE )ILEDH E*/E,TIONS

4he court shall state the time for the filing of claims against the estate7 which shall not be more than twelve >!"? nor less than si1 >)? months after the date of the first publication of the notice. 0owever7 at an* time before an order of distribution is entered7 on application of a creditor who has failed to file his claim within the time previousl* limited7 the court ma*7 for cause shown and on such terms as are e,uitable7 allow such claim to be filed within a time not e1ceeding one >!? month. STAT(TE O) NON</LAIMS A claim b* a person against the estate of deceased should be made in not less than ) months nor more than !" months since the first publication of allowance of the will. :f the said claims are not filed within the time limited in the notice7 the* are forever be barred. /LAIM O) E*E/(TOR OR ADMINISTRATOR A+AINST T>E ESTATE :f the e1ecutor or administrator has a claim against the estate he represents7 he shall give notice thereof7 in writing7 to the court7 and the court shall appoint a special administrator7 who shall7 in the ad%ustment of such claim7 have the same power and be sub%ect to the same liabilit* as the general administrator or e1ecutor in the settlement of other claims. 4he court ma* order the e1ecutor or administrator to pa* to the special administrator necessar* funds to defend such claim. ,A'MENT O) DEBTS ;R(LE 66= :f there are sufficient properties7 the debts shall be paid7 thusE !? All debts shall be paid in full within the time limited for the purpose >Sec. !?9 "? :f the testator makes provision b* his will7 or designates the estate to be appropriated for the pa*ment of debts the* shall be paid according to the provisions of the will7 which must be respected >Sec. "?9 &? :f the estate designated in the will is not sufficient7 such part of the estate as is not disposed of b* will shall be appropriated for the purpose >Sec. "?9 '? 4he personal estate not disposed of b* will shall be first chargeable with pa*ment of debts and e1penses >Sec. &?9

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(? :f the personal estate is not sufficient7 or its sale would be detrimental to the participants of the estate7 the real estate not disposed of b* will shall be sold or encumbered for that purpose >Sec. &?9 )? An* deficienc* shall be met b* contributions from devisees7 legatees and heirs who have entered into possession of portions of the estate before debts and e1penses have been paid >Sec. )?9 +? 4he e1ecutor or administrator shall retain sufficient estate to pa* contingent claims when the same becomes absolute >Sec. '?. :f the estate is insolvent7 the debts shall be paid in the following mannerE !? 4he e1ecutor or administrator shall pa* the debts in accordance with the preference of credits established b* the Civil Code >Sec. +?9 "? #o creditor of an* one class shall receive an* pa*ment until those of the preceding class are paid >Sec. -?9 &? :f there are no assets sufficient to pa* the credits of an* one class of creditors7 each creditor within such class shall be paid a dividend in proportion to his claim >Sec. -?9 '? <here the deceased was a nonresident7 his estate in the hilippines shall be disposed of in such a wa* that creditors in the hilippines and elsewhere ma* receive an e,ual share in proportion to their respective credits >Sec. .?9 (? Claims dul* proved against the estate of an insolvent resident of the hilippines7 the e1ecutor or administrator7 having had the opportunit* to contest such claims7 shall e included in the certified list of claims proved against the deceased. 4he owner of such claims shall be entitled to a %ust distribution of the estate in accordance with the preceding rules if the propert* of such deceased person in another countr* is likewise e,uall* apportioned to the creditors residing in the hilippines and other creditors7 according to their respective claims >Sec. !D?9 )? :t must be noted that the pa*ments of debts of the decedent shall be made pursuant to the order of the probate court >Sec. !!?. 3n granting letters testamentar* or administration the court shall allow to the e1ecutor or administrator a time for disposing of the estate and pa*ing the debts and legacies of

the deceased7 which shall not7 in the first instance7 e1ceed one >!? *ear9 but the court ma*7 on application of the e1ecutor or administrator and after hearing on such notice of the time and place therefor given to all persons interested as it shall direct7 e1tend the time as the circumstances of the estate re,uire not e1ceeding si1 >)? months for a single e1tension nor so that the whole period allowed to the original e1ecutor or administrator shall e1ceed two >"? *ears (Sec. 15). A/TIONS B' AND A+AINST E*E/(TORS AND ADMINISTRATORS ;R(LE 65= #o action upon a claim for the recover* of mone* or debts or interest thereon shall be commenced against the e1ecutor or administrator. A/TIONS T>AT MA' BE BRO(+>T A+AINST E*E/(TORS AND ADMINISTRATORS An action to recover real or personal propert*7 or an interest therein7 from the estate7 or to enforce a lien thereon7 and actions to recover damages for an in%ur* to person or propert*7 real or personal7 ma* be commenced against the e1ecutor or administrator. <henever a part* to a pending action dies7 and the claim is not thereb* e1tinguished7 it shall be the dut* of his counsel to inform the court within thirt* >&D? da*s after such death of the fact thereof7 and to give the name and address of his legal representative or representatives. 5ailure of counsel to compl* with this dut* shall be a ground for disciplinar* action. 4he heirs of the deceased ma* be allowed to be substituted for the deceased7 without re,uiring the appointment of an e1ecutor or administrator and the court ma* appoint a guardian ad litem for the minor heirs. 4he court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirt* >&D? da*s from notice. :f no legal representative is named b* the counsel for the deceased part*7 or if the one so named shall fail to appear within the specified period7 the court ma* order the opposing part*7 within a specified time7 to procure the appointment of an e1ecutor or administrator for the estate of the deceased and the latter shall immediatel* appear for and on behalf of the deceased. 4he court charges in procuring such appointment7 if defra*ed b* the opposing part*7 ma* be recovered as costs.

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<hen the action is for recover* of mone* arising from contract7 e1press or implied7 and the defendant dies before entr* of final %udgment in the court in which the action was pending at the time of such death7 it shall not be dismissed but shall instead be allowed to continue until entr* of final %udgment. A favorable %udgment obtained b* the plaintiff therein shall be enforced in the manner especiall* provided in these Rules for prosecuting claims against the estate of a deceased person. REA(ISITES BE)ORE /REDITOR MA' BRIN+ AN A/TION )OR RE/OVER' O) ,RO,ERT' )RA(D(LENTL' /ONVE'ED B' T>E DE/EASED !? 4here is a deficienc* of assets in the hands of an e1ecutor or administrator for the pa*ment of debts and e1penses of administration9 "? 4he deceased in his lifetime had made or attempted to make a fraudulent conve*ance of his real or personal propert*7 or a right or interest therein7 or a debt or credit7 with intent to defraud his creditors or to avoid an* right7 debt or dut*9 or had so conve*ed such propert*7 right7 debt7 or credit that b* law the conve*ance would be void as against his creditors9 &? 4he sub%ect of the attempted conve*ance would be liable to attachment b* an* of them in his lifetime9 '? 4he e1ecutor or administrator has shown to have no desire to file the action or failed to institute the same within a reasonable time9 (? Leave is granted b* the court to the creditor to file the action9 )? A bond is filed b* the creditor as prescribed in the Rules9 +? 4he action b* the creditor is in the name of the e1ecutor or administrator.

inheritance ta1 and all other obligations9 and c. when the pa*ment of the said ta1 and all other obligations has been provided for9 and "? Declaration of heirs J there must first be declaration of heirs to determine to whom the residue of the estate should e distributed. A separate action for the declaration of heirs is not proper. And likewise after7 not before the declaration of heirs is made ma* the residue be distributed and delivered to the heirs. 4he settlement of a decedentLs estate is a proceeding in rem which is binding against the whole world. All persons having interest in the sub%ect matter involved7 whether the* were notified or not7 are e,uall* bound. LIA(IDATION W! n or# r :or #istri9%tion o: r si#% ma# & <hen the debts7 funeral charges7 and e1penses of administration7 the allowance to the widow7 and inheritance ta17 if an*7 chargeable to the estate in accordance with law7 have been paid7 the court7 on the application of the e1ecutor or administrator7 or of a person interested in the estate7 and after hearing upon notice7 shall assign the residue of the estate to the persons entitled to the same7 naming them and the proportions7 or parts7 to which each is entitled7 and such person ma* demand and recover their respective shares from the e1ecutor or administrator7 or an* other person having the same in his possession. :f there is a controvers* before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law7 the controvers* shall be heard and decided as in ordinar* cases. #o distribution shall be allowed until the pa*ment of the obligations above mentioned has been made or provided for7 unless the distributees7 or an* of them7 give a bond7 in a sum to be fi1ed b* the court7 conditioned for the pa*ment of said obligations within such time as the court directs. A% stions as to a#0anc m nt to 9 # t rmin #& Auestions as to advancement made7 or alleged to have been made7 b* the deceased to an* heir ma* be heard and determined b* the court having %urisdiction of the estate proceedings9 and the final order of the court thereon shall be binding on the person raising the ,uestions and on the heir.

DISTRIB(TION AND ,ARTITION ;R(LE 70= Before there could be a distribution of the estate7 the following two stages must be followedE !? a*ment of obligations >li,uidation of estate? J under the Rules7 the distribution of a decedentLs assets ma* onl* be ordered under an* of the following three circumstancesE a. when the inheritance ta17 among other is paid9 b. when a sufficient bond is given to meet the pa*ment of the

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By "!om x- ns s o: -artition -ai#& :f at the time of the distribution the e1ecutor or administrator has retained sufficient effects in his hands which ma* lawfull* be applied for the e1penses of partition of the properties distributed7 such e1penses of partition ma* be paid b* such e1ecutor or administrator when it appears e,uitable to the court and not inconsistent with the intention of the testator9 otherwise7 the* shall be paid b* the parties in proportion to their respective shares or interest in the premises7 and the apportionment shall be settled and allowed b* the court7 and7 if an* person interested in the partition does not pa* his proportion or share7 the court ma* issue an e1ecution in the name of the e1ecutor or administrator against the part* not pa*ing for the sum assessed. ,RO.E/T O) ,ARTITION ro%ect of partition is a document prepared b* the e1ecutor or administrator setting forth the manner in which the estate of the deceased is to be distributed among the heirs. :f the estate is a testate estate7 the pro%ect of partition must conform to the terms of the will9 if intestate7 the pro%ect of partition must be in accordance with the provisions of the Civil Code. REMED' O) AN >EIR ENTITLED TO RESID(E B(T NOT +IVEN >IS S>ARE !? :f there is a controvers* before the court as to who are the lawful heirs of the deceased person or as to the distributive shares to which each person is entitled under the law7 the controvers* shall be heard and decided as in ordinar* cases. "? 4he better practice for the heir who has not received his share is to demand his share through a proper motion in the same probate or administration proceedings7 or for reopening of the probate or administrative proceedings if it had alread* been closed7 and not through an independent action7 which would be tried b* another court or %udge. &? :t has been held that an order which determines the distributive share of the heirs of a deceased person is appealable. :f not appealed within the reglementar* period7 it becomes final. '? 4he Court allowed the continuation of a separate action to annul the pro%ect of

partition b* a preterited heir7 since the estate proceedings have been closed and terminated for over three *ears7 and on the ground of lesion7 preterition and fraud. INSTAN/ES W>EN ,ROBATE /O(RT MA' ISS(E WRIT O) E*E/(TION a? 4o satisf* the contributive shares of devisees7 legatees and heirs in possession of the decedentLs assets9 b? 4o enforce pa*ment of e1penses of partition9 and c? 4o satisf* the costs when a person is cited for e1amination in probate proceedings. +ENERAL +(ARDIANS AND +(ARDIANS>I,

TR(STEES ;R(LE 76= Re,uisites for e1istence of a valid trustE !? 21istence of a person competent to create9 "? Sufficient words to create it9 &? A person capable of holding as trustee a specified or ascertainable ob%ect9 '? A definite trust res9 and (? A declaration of the terms of the trust TR(STEE An instrument or agent of the cestui (ue trust7 who ac,uires no beneficial interest in the estate9 he merel* took the legal estate onl* as the proper e1ecution of the trust re,uired9 and7 his estate ceases upon the fulfilment of the testatorLs wishes7 in which case7 the same vest absolutel* in the beneficiar*. E*E/(TOR B ADMINISTRATOR An e1ecutor is the person named in the will to administer the decedentLs estate and carr* out the provisions thereof. An administrator is the person appointed b* the court to administer the estate where the decedent died intestate7 or where the will was void and not allowed to probate7 or where no e1ecutor was named in the will7 or the e1ecutor named therein in incompetent or refuses to serve as such. An association or

An

association

or

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corporation authori@ed to conduct the business of a trust compan* in the hilippines ma* appointed as trustee of an estate in the same manner as an individual >Art. !D)D7 CC?.

Duties are usuall* governed b* the intention of the trustor or the parties if established b* a contract. Duties ma* cover a wider range. Groun's for re$o6" of trustee0 a? :nsanit*9 b? :ncapabilit* of discharging trust or evidentl* unsuitable therefor >Sec. -7 Rule .-?9 c? #eglect in the performance of his duties9 d? Breach of trust displa*ing a want of fidelit*7 not mere error in the administration of the trust9 e? Abuse and abandonment of the trust9 f? Refusal to recogni@e or administer the trust9 g? 5ailure or neglect or impropriet* in investment of the trust estate as to give rise to waste of trust propert*9 h? 5ailure to file accounts7 and failure of one co-trustee to keep himself informed of the conduct of the other in the administration REA(ISITES )OR T>E

corporation authori@ed to conduct the business of a trust compan* in the hilippines ma* appointed as e1ecutor or administrator of an estate in the same manner as an individual >Art. !D)D7 CC?. Duties are fi1ed and6or limited b* law >Rule -'?.

of the trust. /ONDITIONS O) T>E BOND A trustee appointed b* the court is re,uired to furnish a bond and the terms of the trust or a statute ma* provide that a trustee appointed b* a court shall be re,uired to furnish a bond in order to ,ualif* him to administer the trust. 0owever7 the court ma* until further order e1empt a trustee under a will from giving a bond when the testator has directed or re,uested such e1emption or when all persons beneficiall* interested in the trust7 being of full age7 re,uest the e1emption. Such e1emption ma* be cancelled b* the court at an* time7 and the trustee re,uired to forthwith file a bond. :f the trustee fails to furnish a bond as re,uired b* the court7 he fails to ,ualif* as such. #onetheless the trust is not defeated b* such a failure to give bond. 4he following conditions shall be deemed to be a part of the bond whether written therein or notE a? 4hat the trustee will make and return to the court7 at such time as it ma* order7 a true inventor* of all the real and personal estate belonging to him as trustee7 which at the time of the making of such inventor* shall have come to his possession or knowledge9 b? 4hat he will manage and dispose of all such estate7 and faithfull* discharge his trust in relation thereto7 according to law and the will of the testator or the provisions of the instrument or order under which he is appointed9 c? 4hat he will render upon oath at least once a *ear until his trust is fulfilled7 unless he is e1cused therefrom in an* *ear b* the court7 a true account of the propert* in his hands and of the management and disposition thereof7 and will render such other accounts as the court ma* order. 4hat at the e1piration of his trust he will settle his accounts in court and pa* over and deliver all the estate remaining in his hands7 or due from him on such settlement7 to the person or persons entitled thereto. But when the trustee is appointed as a successor to a prior trustee7 the court ma* dispense with the making and return of an inventor*7 if one has alread* been filed7 and in such case the condition of the bond shall be deemed to be altered accordingl*. RESI+NATION O) A TR(STEE

Groun's for re$o6" 0 a? #eglect to render an account and settle the estate according to law9 b? #eglect to perform an order or %udgment of the court9 c? #eglect to perform a dut* e1pressl* provided b* these rules9 d? Absconds7 or becomes insane7 or e? otherwise incapable or unsuitable to discharge trust9 f? >e? 5raud or misrepresentati on

REMOVAL AND

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A trustee ma* be removed upon petition to the proper R4C of the parties beneficiall* interested7 after due notice to the trustee and hearing7 if it appears essential in the interests of the petitioners. 4he court ma* also7 after due notice to all persons interested7 remove a trustee who is insane or otherwise incapable of discharging his trust or evidentl* unsuitable therefor. A trustee7 whether appointed b* the court or under a written instrument7 ma* resign his trust if it appears to the court proper to allow such resignation. A trustee whose acts or omissions are such as to show a want of reasonable fidelit* will be removed b* the court and where trust funds are to be invested b* the trustee7 neglect to invest constitutes of itself a breach of trust7 and is a ground for removal. +RO(NDS )OR REMOVAL AND RESI+NATION O) A TR(STEE 4he proper Regional 4rial Court ma*7 upon petition of the parties beneficiall* interested and after due notice to the trustee and hearing9 remove a trustee if such removal appears essential in the interests of the petitioners. 4he court ma* also7 after due notice to all persons interested7 remove a trustee who is insane or otherwise incapable of discharging his trust or evidentl* unsuitable therefor. A trustee7 whether appointed b* the court or under a written instrument7 ma* resign his trust if it appears to the court proper to allow such resignation. A trustee whose acts or omissions are such as to show a want of reasonable fidelit* will be removed b* the court and where trust funds are to be invested b* the trustee7 neglect to invest constitutes of itself a breach of trust7 and is a ground for removal. E*TENT O) A(T>ORIT' O) TR(STEE A trustee appointed b* the R4C shall have the same rights7 powers7 and duties as if he had been appointed b* the testator. #o person succeeding to a trust as e1ecutor or administrator of a former trustee shall be re,uired to accept such trust. Such new trustee shall have and e1ercise the same powers7 rights7 and duties as if he had been originall* appointed7 and the trust estate shall vest in him in like manner as it had vested or would have vested7 in the trustee in whose

place he is substituted9 and the court ma* order such conve*ance to be made b* the former trustee or his representatives7 or b* the other remaining trustees7 as ma* be necessar* or proper to vest the trust estate in the new trustee7 either alone or %ointl* with the others. ES/>EAT ;R(LE 71= 2scheat is a proceeding whereb* the real and personal propert* of a deceased person in the hilippines7 become the propert* of the state upon his death7 without leaving an* will or legal heirs. W>EN TO )ILE <hen a person dies intestate7 sei@ed of real or personal propert* in the hilippines7 leaving no heir or person b* law entitled to the same7 the Solicitor 8eneral or his representative in behalf of the Republic of the hilippines7 ma* file a petition in the Court of 5irst :nstance of the province where the deceased last resided or in which he had estate7 if he resided out of the hilippines7 setting forth the facts7 and pra*ing that the estate of the deceased be declared escheated. REA(ISITES )OR )ILIN+ O) ,ETITION a? 4hat a person died intestate9 b? 4hat he left no heirs or person b* law entitled to the same9 and c? 4hat the deceased left properties. REMED' O) RES,ONDENT A+AINST ,ETITIONH ,ERIOD )OR )ILIN+ A /LAIM :f a devisee7 legatee7 heir7 widow7 widower or other person entitled to such estate appears and files a claim thereto with the court within ( *ears from the date of such %udgment7 such person shall have possession of and title to the same7 or if sold7 the municipalit* or cit* shall be accountable to him for the proceeds7 after deducting reasonable charges for the care of the estate9 hence7 claim not made within such time limit shall forever be barred. +(ARDIANS>I, ;R(LES 72 75= 8uardianship is the power of protective authorit* given b* law and imposed on an individual who is free and in the en%o*ment of his rights7 over one

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whose weakness on account of his age or other infirmit* renders him unable to protect himself. 8uardianship ma* also describe the relation subsisting between the guardian and the ward. :t involves the taking of possession of an management of7 the estate of another unable to act for himself. A guardian is a person lawfull* invested with power and charged with the dut* of taking care of a person who for some peculiarit* or status or defect of age7 understanding or self-control is considered incapable of administering his own affairs. 8in#s o: g%ar#iansC !? According to scope or e1tent a? 8uardian of the person J one who has been lawfull* invested with the care of the person of minor whose father is dead. 0is authorit* is derived out of that of the parent9 b? 8uardian of the propert* J that appointed b* the court to have the management of the estate of a minor or incompetent person9 c? 8eneral guardians J those appointed b* the court to have the care and custod* of the person and of all the propert* of the ward. "? According to constitution a? Legal J those deemed as guardians without need of a court appointment >Art. ""(7 5amil* Court?9 b? 8uardian ad litem J those appointed b* courts of %ustice to prosecute or defend a minor7 insane or person declared to be incompetent7 in an action in court9 and c? /udicial J those who are appointed b* the court in pursuance to law7 as guardian for insane persons7 prodigals7 minor heirs or deceased was veterans and other incompetent persons. +ENERAL ,OWERS AND D(TIES O) +(ARDIANS ;R(LE 74= a? 4o have care and custod* over the person of his ward7 and6or the management of his estate >Sec. !?9 b? 4o pa* the %ust debts of his ward out of the latterLs estate >Sec. "?9 c? 4o bring or defend suits in behalf of the ward7 and7 with the approval of the court7 compound for debts due the ward and give discharges to the debtor >Sec. &?9

d? 4o manage the estate frugall* and without waste7 and appl* the income and profits to the comfortable and suitable maintenance of the ward and his famil* >Sec. '?9 e? 4o sell or encumber the real estate of the ward upon being authori@ed to do so >Sec. '?9 f? 4o %oin in an assent to a partition of real or personal estate held b* the ward %ointl* or in common with others >Sec. (?. /ONDITIONS O) T>E BOND O) T>E +(ARDIAN a? 4o file with the court complete inventor* of the estate of the ward within & months9 b? 4o faithfull* e1ecute the duties of his trust to manage and dispose of the estate according to the Rules for the best interests of the ward7 and to provide for the proper use7 custod*7 and education of the ward9 c? 4o render a true account of all the estate7 and of the management and disposition of the same9 d? 4o settle his accounts with the court and deliver over all the estate remaining in his hands to the person entitled thereto9 e? 4o perform all orders of the court b* him to be performed (Sec. 1; Sec. 18, A, .3/.2/.5/ SC). R(LE ON +(ARDIANS>I, OVER MINORS ;AM 01<02<03<S/= 4he father and mother shall %ointl* e1ercise legal guardianship over the person and propert* of their unemancipated common child without the necessit* of a court appointment. 4he Rule shall be suppletor* to the provisions of the 5amil* Code on guardianship. 3n grounds authori@ed b* law7 an* relative or other person on behalf of a minor7 or the minor himself if !' *ears of age or over7 ma* petition the 5amil* Court for the appointment of a general guardian over the person or propert*7 or both7 of such minor. 4he petition ma* also be filed b* the Secretar* of DS<D and of the D30 in the case of an insane minor who needs to be hospitali@ed. +ro%n#s o: - titionC a? Death7 continued absence7 or incapacit* of his parents9 b? Suspension7 deprivation or termination of parental authorit*9 c? Remarriage of his surviving parent7 if the latter is found unsuitable to e1ercise parental authorit*9 or

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d? <hen the best interest of the minor so re,uire. A%a$i:ications o: g%ar#iansC a? $oral character9 b? h*sical7 mental and ps*chological condition9 c? 5inancial status9 d? Relationship of trust with the minor9 e? Availabilit* to e1ercise the powers and duties of a guardian for the full period of the guardianship9 f? Lack of conflict of interest with the minor9 and g? Abilit* to manage the propert* of the minor. 3rder of preference in the appointment of guardian or the person and6or propert* of minorE a? 4he SBR;:;:#8 8RA#D AR2#4 and in case several grandparents survive7 the court shall select an* of them taking into account all relevant considerations9 b? 4he 3LD2S4 BR3402R 3R S:S42R of the minor over "! *ears of age7 unless unfit or dis,ualified9 c? 4he AC4BAL CBS43D:A# of the minor over "! *ears of age7 unless unfit or dis,ualified9 and d? An* 3402R 2RS3#7 who in the sound discretion of the court7 would serve the best interests of the minor. 5actors to consider in determining custod*E a? An* e1tra%udicial agreement which the parties ma* have bound themselves to compl* with respecting the rights of the minor to maintain direct contact with the non-custodial parent on a regular basis7 e1cept when there is an e1isting threat or danger of ph*sical7 mental7 se1ual or emotional violence which endangers the safet* and best interests of the minor9 b? 4he desire and abilit* of one parent to foster an open and loving relationship between the minor and the other parent9 c? 4he health7 safet* and welfare of the minor9 DOMESTI/ ADO,TION 8overned b* RA -(("7 the Domestic Adoption Act of !..-9 procedure governed b* A, -o. .2/.;/.2/SC, Au3. 22, 2..2. Applies to domestic adoption of 5ilipino children7 where the entire adoption process beginning from the filing of the petition up to the issuance of the adoption decree takes place in the hilippines.

d? An* histor* of child or spousal abuse b* the person seeking custod* or who has had an* filial relationship with the minor7 including an*one courting the parent9 e? 4he nature and fre,uenc* of contact with both parents9 f? 0abitual use of alcohol7 dangerous drugs or regulated substances9 g? $arital misconduct9 h? 4he most suitable ph*sical7 emotional7 spiritual7 ps*chological and educational environment for the holistic development and growth of the minor9 and i? 4he preference of the minor over + *ears of age and of sufficient discernment7 unless the parent chosen is unfit (Sec. 18, A, -o. .3/.8/.8/SC). 4he court shall order a social worker to conduct a case stud* of the minor and all the prospective guardians and submit his report and recommendation to the court for its guidance before the scheduled hearing. ADO,TION ;R(LES 77 100? S(,ERSEDED B' AM 02<4<02<S/= Adoption is a %uridical act which creates between two persons a relationship similar to that which results from legitimate paternit*. Adoption is a %uridical act7 a proceeding in rem7 which creates between the two persons a relationship similar to that which results from legitimate paternit* and filiation. Adoption is not an adversarial proceeding. An adversarial proceeding is one having opposing parties7 contested7 as distinguished from an e1 parte application7 one of which the part* seeking relief has given legal warning to the other part* and afforded the latter an opportunit* to contest it e1cludes an adoption proceeding. :n adoption7 there is no particular defendant to speak of since the proceeding involves the status of a person it being an action in rem.

INTER</O(NTR' ADO,TION 8overned b* *A <.837 the :nter-Countr* Adoption Act of !..(9 procedure governed b* the Amended :mplementing Rules and Regulations on :CAA. Applies to adoption of a 5ilipino child in a foreign countr*7 where the petition for adoption is filed7 the supervised trial custod* is undertaken and the decree of adoption is issued outside of the hilippines.

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W!o may 9 a#o-t # A child legall* available for adoption. Re,uisitesE a? Below !- *ears of age9 and b? /udiciall* declared available for adoption. c? 21ceptionsE d? Legitimate son6daughter of one spouse b* the other spouse9 e? :llegitimate sonI'"u3hter %+ " (u" ifie' "'o!ter; f? erson of legal age if7 prior to the adoption said person has been consistentl* considered and treated b* the adopter6s as his6her own child since minorit*. W!o may a#o-t

W!o may 9 a#o-t # 3nl* a legall* free child ma* be adopted. Re,uisitesE a? Below !( *ears of age9 and b? 0as been voluntaril* or involuntaril* committed to the DS<D in accordance with P4 ;.3.

W!o may a#o-t

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A& )ILI,INO /ITIGENS !? 3f legal age9 "? :n possession of full civil capacit* and legal rights9 &? 3f good moral character9 '? 0as not been convicted of an* crime involving moral turpitude9 (? 2motionall* and ps*chologicall* capable of caring for children9 )? :n a position to support and care for his6her children in keeping with the means of the famil*9 +? At least !) *ears older than the adoptee but this latter re,uirement ma* be waived if >a? the adopter is the biological parent of the adoptee9 or >b? the adopter is the spouse of the adopteeLs parent9 and -? ermanent resident of the hilippines. B& ALIENS !? Same ,ualifications as above7 and in additionE "? 0is6her countr* has diplomatic relations with the Republic of the hilippines9 &? 0is6her government allows the adoptee to enter his6her countr* as his6her adopted son6daughter9 '? 0as been living in the hilippines for at least & continuous *ears prior to the filing of the application for adoption and maintains such residence until the adoption decree is entered9 and (? 0as been certified b* his6her diplomatic or consular office or an* appropriate government agenc* that he6she has the legal capacit* to adopt in his6her countr*. 4his re,uirement ma* be waived if >a? a former 5ilipino citi@ens seeks to adopt a relative within the 'th degree of consanguinit* or affinit*9 >b? one seeks to adopt the legitimate son6daughter of his6her 5ilipino spouse9 >c? one who is married to a 5ilipino citi@en and seeks to adopt a relative within the 'th degree of consanguinit* or affinit* of the 5ilipino spouse.

A. )ILI,INO /ITIGENS !? ermanent resident of a foreign countr*9 "? 0as the capacit* to act and assume all rights and responsibilities of parental authorit* under hilippine laws9 &? 0as undergone the appropriate counseling from an accredited counselor in countr* of domicile9 '? 0as not been convicted of a crime involving moral turpitude9 (? 2ligible to adopt under hilippine laws9 )? :n a position to provide the proper care and support and to give the necessar* moral values and e1ample to all his children7 including the child to be adopted9 +? Agrees to uphold the basic rights of the child as embodied under hilippine laws7 the B# Convention on Rights of the Child7 and to abide b* the rules and regulations issued to implement the provisions of the :CAA9 -? Residing in a countr* with whom the hilippines has diplomatic relations and whose government maintains a similarl* authori@ed and accredited agenc* and that adoption is allowed in that countr*9 .? ossesses all the ,ualifications and none of the dis,ualifications provided in the :CAA and in other applicable hilippine laws9 !D? At least "+ *ears of age at the time of the application9 and !!? At least !) *ears older than the child to be adopted at the time of application7 unless >a? adopted is the parent b* nature of the child to be adopted9 or >b? adopter is the spouse of the parent b* nature of the child to be adopted. B& ALIENS !? At least "+ *ears of age at the time of the application9 "? At least !) *ears older than the child to be adopted at the time of application unless the adopter is the parent b* nature of the child to be adopted or the spouse of such parent9 &? 0as the capacit* to act and assume all rights and responsibilities of parental authorit* under his national laws9 '? 0as undergone the appropriate counseling from an accredited counselor in his6her countr*9 (? 0as not been convicted of a crime involving moral turpitude9 )? 2ligible to adopt under his6her national law9 +? :n a position to provide the proper care and support and to give the necessar* moral values and e1ample to all his children7 including the child to be adopted9 -? Agrees to uphold the basic rights of the child

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R E%ir m nt o: .oint A#o-tion 9y S-o%s s 8eneral ruleE husband and wife shall %ointl* adopt9 otherwise7 the adoption shall not be allowed. 21ceptionsE !? :f one spouse seeks to adopt the legitimate son6daughter of the other9 "? :f one spouse seeks to adopt his6her own illegitimate son6daughter but the other spouse must give his6her consent9 &? :f the spouses are legall* separated from each other. ,roc #%r

as embodied under hilippine laws7 the B# Convention on the Rights of the Child7 and to abide b* the rules and regulations issued to implement the provisions of the :CAA9 .? Comes from a countr* with whom the hilippines has diplomatic relations and whose government maintains a similarl* authori@ed and accredited agenc* and that adoption is allowed under his6her national laws9 and !D? ossesses all the ,ualifications and none of the dis,ualifications provided in the :CAA and in other applicable hilippine laws. R E%ir m nt o: .oint A#o-tion 9y S-o%s s RuleE if the adopter is married7 his6her spouse must %ointl* file for the adoption.

,roc #%r

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<here to file applicationE :n the 5amil* Court of the province or cit* where the prospective parents reside. After filingE 4he petition shall not be set for hearing without a case stud* report b* a licensed social worker. Supervised 4rial Custod*E a? 4emporar* parental authorit* is vested in prospective adopter9 b? eriod is at least ) months7 but ma* be reduced b* the court motu propio or upon motion9 c? :f adopter is alien7 the law mandatoril* re,uires completion of the )-month trial custod* and ma* not be reduced7 e1cept ifE !? a former 5ilipino citi@en seeks to adopt a relative within 'th degree of consanguinit* or affinit*9 "? one seeks to adopt the legitimate son6daughter of his6her 5ilipino spouse9 &? one who is married to a 5ilipino citi@en and seeks to adopt %ointl* with his6her spouse a relative within the 'th degree of consanguinit* or affinit* of the 5ilipino spouse. Decree of AdoptionE :ssued b* hilippine 5amil* Court. Consent Re,uiredE <ritten consent of the following to the adoption is re,uired7 in the form of affidavitE !? adoptee7 if !D *ears of age or over9 "? biological parent6s of the child7 if known7 or the legal guardian7 or the proper government instrumentalit* which has legal custod* of the child9 &? legitimate and adopted sons or daughters7 !D *ears of age or over7 of the adopter6s and adoptee7 if an*9 '? illegitimate sons6daughters7 !D *ears of age of over7 of the adopter if living with said adopter and the latterLs spouse7 if an*9 (? spouse7 if an*7 of the person adopting or to be adopted.

<here to file applicationE 2ither in >a? 5amil* Court having %urisdiction over the place where the child resides or ma* be found7 or >b? :nter-Countr* Adoption Board >:CAB? through an intermediate agenc*7 whether governmental or an authori@ed and accredited agenc*7 in the countr* of the prospective adoptive parents. After filingE a? if filed in the 5C7 court determines sufficienc* of petition in respect to form and substance7 after which7 petition is transmitted to :CAB9 b? if petition is alread* with :CAB7 it conducts matching of the applicant with an adoptive child9 c? after matchmaking7 the child is personall* fetched b* the applicant for the trial custod* which takes place outside of the hilippines. Supervised 4rial Custod*E a? 4his process takes place outside of the countr* and under the supervision of the foreign adoption agenc*9 b? 5or a period of ) months9 c? :f unsuccessful7 :CAB shall look for another prospective applicant. Repatriation of the child is to be resorted onl* as a last resort9 d? :f successful7 :CAB transmits a written consent for the adoption to be e1ecuted b* the DS<D7 and the applicant then files a petition for adoption in his6her countr*. Decree of AdoptionE :ssued b* a foreign court. Consent Re,uiredE !? <ritten consent of biological or adopted children above !D *ears of age7 in the form of sworn statement is re,uired to be attached to the application to be filed with the 5C or :CAB9 "? :f a satisfactor* pre-adoptive relationship is formed between the applicant and the child7 the written consent to the adoption e1ecuted b* the DS<D is re,uired.

DOMESTI/ ADO,TION A/T ;RA 6332H AM 02<04<02<S/= E))E/TS O) ADO,TION

Trans: r o: -ar nta$ a%t!ority J e1cept in cases where the biological parent is the spouse of the adopter7 the parental authorit* of the

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biological parents shall terminate and the same shall be vested in the adopters. L gitimacy J the adoptee shall be considered the legitimate son6daughter of the adopter>s? for all intents and purposes and as such is entitled to all the rights and obligations provided b* law to legitimate sons6daughters born to them without discrimination of an* kind. S%cc ssiona$ rig!ts a? :n legal and intestate succession7 the adopter>s? and the adoptee shall have reciprocal rights of succession without distinction from legitimate filiation9 b? 0owever7 if the adoptee and his6her biological parent>s? had left a will7 the law on testamentar* succession shall govern9 c? 4he adoptee remains an intestate heir of his6her biological parent. Iss%anc o: n " c rti:icat an# :irst nam an# s%rnam o: a#o-t a? 4he adoption decree shall state the name b* which the child is to be known. An amended certificate of birth shall be issued b* the Civil Registr* attesting to the fact that the adoptee is the child of the adopter>s? b* being registered with his6her surname9 b? 4he original certificate of birth shall be stamped McancelledN with the annotation of the issuance of an amended birth certificate in its place and shall be sealed in the civil registr* records. 4he new birth certificate to be issued to the adoptee shall not bear an* notation that it is an amended issue9 c? All records7 books7 and papers relating to the adoption cases in the files of the court7 the DS<D7 or an* other agenc* or institution participating in the adoption proceedings shall be kept strictl* confidential and the court ma* order its release under the following conditions onl*E >!? the disclosure of the information to a third person is necessar* for purposes connected with or arising out of the adoption9 >"? the disclosure will be for the best interest of the adoptee9 and >&? the court ma* restrict the purposes for which it ma* be used. INSTAN/ES W>EN ADO,TION MA' BE RES/INDED +ro%n#s :or r scissionC

a? Repeated ph*sical and verbal maltreatment b* the adopter>s? despite having undergone counselling9 b? Attempt on the life of the adoptee9 c? Se1ual assault or violence9 or d? Abandonment and failure to compl* with parental obligations. ,r scri-ti0 - rio#C a? :f incapacitated J within five >(? *ears after he reaches the age of ma%orit*9 b? :f incompetent at the time of the adoption J within five >(? *ears after recover* from such incompetenc*. E))E/TS O) RES/ISSION O) ADO,TION !? arental authorit* of the adopteeLs biological parent>s?7 if known7 or the legal custod* of the DS<D shall be restored if the adoptee is still a minor or incapacitated9 "? Reciprocal rights and obligations of the adopter>s? and the adoptee to each other shall be e1tinguished9 &? Cancellation of the amended certificate of birth of the adoptee and restoration of his6her original birth certificate9 and '? Succession rights shall revert to its status prior to adoption7 but onl* as of the date of %udgment of %udicial rescission. ;ested rights ac,uired prior to %udicial rescission shall be respected. INTER</O(NTR' ADO,TION ;RA 6021= :nter-Countr* Adoption refers to the socio-legal process of adopting a 5ilipino child b* a foreigner or a 5ilipino citi@en permanentl* residing abroad where the petition is filed7 the supervised trial custod* is undertaken7 and the decree of adoption is issued in the hilippines. W>EN ALLOWED :nter-countr* adoptions are allowed when the same shall prove beneficial to the childLs best interests7 and shall serve and protect his6her fundamental rights. :t is allowed when all the re,uirements and standards set forth under RA -D'& are complied with. )(N/TIONS O) T>E RT/ An application to adopt a 5ilipino child shall be filed either with the hilippine Regional 4rial Court having %urisdiction over the child7 or with the Board7 through an intermediate agenc*7

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whether governmental or an authori@ed and accredited agenc*7 in the countr* of the prospective adoptive parents7 which application shall be in accordance with the re,uirements as set forth in the implementing rules and regulations. JBEST INTEREST O) T>E MINORK STANDARD :n case of custod* cases of minor children7 the court after hearing and bearing in mind the best interest of the minor7 shall award the custod* as will be for the minorLs best interests. JB st int r sts o: t! c!i$#K - means the totalit* of the circumstances and conditions as are most congenial to the survival7 protection7 and feelings of securit* of the child and most encouraging to his ph*sical7 ps*chological7 and emotional development. :t also means the least detrimental available alternative for safeguarding the growth and development of the child.

of habeas corpus. 0is remed* then is the ,uashal of the information and6or the warrant of arrest dul* issued. 4he reason for the issuance of the writ even becomes more unavailing when the person detained files a bond for his temporar* release. 0abeas corpus ma* not be used as a means of obtaining evidence on the whereabouts of a person7 or as a means of finding out who has specificall* abducted or caused the disappearance of a certain person. 4he writs of habeas corpus and certiorari ma* be ancillar* to each other where necessar* to give effect to the supervisor* powers of the higher courts. A writ of habeas corpus reaches the bod* and the %urisdictional matters7 but not the record. A writ of certiorari reaches the record but not the bod*. 0ence7 a writ of habeas corpus ma* be used with the writ of certiorari for the purpose of review. 4he general rule is that the release7 whether permanent or temporar*7 of a detained person renders the petition for habeas corpus moot and academic7 unless there are restraints attached to his release which precludes freedom of action7 in which case the Court can still in,uire into the nature of his involuntar* restraint. etitionerCs temporar* release does not render the petition for writ moot and academic. Some instances when the writ ma* issueE !? 4o in,uire into the legalit* of an order of confinement b* a court martial. "? 4o test the legalit* of an alienCs confinement and proposed e1pulsion from the hilippines. &? 4o enable parents to regain custod* of a minor child7 even if the latter be in the custod* of a third person of her own free will. '? 4o obtain freedom for an accused confined for failure to post bail where the prosecuting officer unreasonabl* dela*s trial b* continued postponement. (? 4o give retroactive effect to a penal provision favorable to the accused when the trial %udge has lost %urisdiction b* virtue of the finalit* of the %udgment of conviction. )? 4o determine the constitutionalit* of a statute. +? 4o permit an alien to land in the hilippines. -? 4o put an end to an immoral situation7 as when a minor girl7 although preferring to

WRIT O) >ABEAS /OR,(S ;R(LE 102= <rit of habeas corpus is a writ which has been esteemed to the best and onl* sufficient defense of personal freedom having for its ob%ect the speed* release b* %udicial decree of persons who are illegall* restrained of their libert*7 or illegall* detained from the control of those who are entitled to their custod*. 4he writ of habeas corpus shall e1tend to all cases of illegal confinement or detention b* which an* person is deprived of his libert*7 or b* which the rightful custod* of an* person is withheld from the person entitled thereto. 4he function of the special proceeding of habeas corpus is to in,uire into the legalit* of oneCs detention. :n all petitions for habeas corpus7 the court must in,uire into ever* phase and aspect of the petitionerCs detention from the moment petitioner was taken into custod* up to the moment the court passes upon the merits of the petition and onl* after such scrutin* can the court satisf* itself that the due process clause of the Constitution has been satisfied. 0owever7 once the person detained is dul* charged in court7 he ma* no longer ,uestion his detention b* a petition for the issuance of a writ

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sta* with her emplo*er7 maintains illicit relationship with him. .? <hen a bond given b* an accused entitled thereto is not admitted or e1cessive bail is re,uired of him. !D? 4o determine the legalit* of an e1tradition. !!? 4o determine the legalit* of the action of a legislative bod* in punishing a citi@en for contempt. !"? 4o obtain freedom after serving minimum sentence when the penalt* under an old law has been reduced b* an amendator* law. (4ote> for )34;64;& 3' ;<6 P6;8;834 and )34;64;& 3' ;<6 /6;=/4 of <abeas )orpus, please see the table below) ,EREM,TOR' WRIT Bnconditionall* commands the respondent to have the bod* of the detained person before the court at a time and place therein specified9 ,RELIMINAR' /ITATION Re,uires the respondent to appear and show cause wh* the peremptor* writ should not be granted

a? 5or asserting or vindicating denial of right to bail9 b? 5or correcting errors in appreciation of facts or appreciation of law J where the trial court had no %urisdiction over the cause7 over the person of the accused7 and to impose the penalt* provided for b* law7 the mistake committed b* the trial court7 in the appreciation of the facts and6or in the appreciation of the law cannot be corrected b* habeas corpus9 c? 3nce a person detained is dul* charged in court7 he ma* no longer file a petition for habeas corpus. 0is remed* would be to ,uash the information or warrant. W>EN WRIT DISALLOWEDBDIS/>AR+ED :f it appears that the person alleged to be restrained of his libert* is in the custod* of an officer under process issued b* a court or %udge or b* virtue of a %udgment or order of a court of record7 and that the court or %udge had %urisdiction to issue the process7 render the %udgment7 or make the order7 the writ shall not be allowed9 or if the %urisdiction appears after the writ is allowed7 the person shall not be discharged b* reason of an* informalit* or defect in the process7 %udgment7 or order. #or shall an*thing in this rule be held to authori@e the discharge of a person charged with or convicted of an offense in the hilippines7 or of a person suffering imprisonment under lawful %udgment.

W>EN NOT ,RO,ERBA,,LI/ABLE :nstances when the writ of habeas corpus is not proper areE WRIT O) >ABEAS /OR,(S A remed* available to an* person7 it covers cases of illegal confinement or detention b* which an* person is deprived of his libert*7 or b* which the rightful custod* of an* person is withheld from the person entitled thereto.

WRIT O) AM,ARO A remed* available to an* person whose rig!t to $i: ? $i9 rty an# s c%rity is 0io$at # or t!r at n # with violation b* an unlawful act or omission of a public official or emplo*ee7 or of a private individual or entit*. 4he writ covers e1tra%udicial killings and enforced disappearances or threats thereof. :t is a form of constitutional relief.

WRIT O) >ABEAS DATA A remed* available to an* person whose rig!t to -ri0acy in $i: ? $i9 rty or s c%rity is 0io$at # or t!r at n # b* an unlawful act or omission of a public official or emplo*ee7 or of a private individual or entit* engaged in the gathering7 collecting or storing of data or information regarding the person7 famil*7 home and correspondence of the aggrieved part*.

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=ho $"+ fi e !etition0 B* the part* for whose relief it is intended7 or b* some person on his behalf.

=here to fi e0 R4C7 enforceable within its area of %urisdiction. CA or SC7 enforceable an*where in the hilippines.

=ho $"+ fi e (in or'er)0 a? An* member of the immediate famil*E spouse7 children and parents of the aggrieved part*9 b? An* ascendant7 descendant or collateral relative of aggrieved part* within the 'th civil degree of consanguinit* or affinit*9 c? An* concerned citi@en7 organi@ation7 association or institution7 if no known member of immediate famil*. Di in3 %+ the "33rie6e' !"rt+ sus!en's the ri3ht of " other "uthoriHe' !erson to fi e such !etition. =here to fi e0 R4C7 Sandiganba*an7 CA7 SC9 <rit is enforceable an*where in the hilippines.

=ho $"+ fi e (in or'er)0 a? An* member of the immediate famil*E spouse7 children and parents of the aggrieved part*9 b? An* ascendant7 descendant or collateral relative of aggrieved part* within the 'th civil degree of consanguinit* or affinit*.

=here to fi e0 R4C7 SC7 CA7 Sandiganba*an9 <rit is also enforceable an*where in the hilippines. =here is the 6enue0 :f filed in the R4CE a? in the place where the petitioner resides9 b? in the place where the respondents reside9 c? in the place where the data or information is gathered7 collected or stored. J At the option of the petitioner :ndigent petitioner is e1empted to pa* docket and other lawful fees. =hen issue'0 :mmediatel* if on its face it ought to be issued9 Served within & da*s from issuance9 Summar* hearing set not later than ten >!D? work da*s from date of issuance.

=hen issue'0 5orthwith when a petition therefor is presented and it appears that the writ ought to issue7

etitioner is e1empted to pa* docket and other lawful fees. =hen issue'0 :mmediatel* if on its face it ought to be issued9 Served immediatel*9 Summar* hearing set not later than seven >+? da*s from date of issuance.

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Contents of 6erifie' !etition0 a? 4hat the person in whose behalf the application is made is imprisoned or restrained of his libert*9 b? 4he officer or name of the person b* whom he is so imprisoned or restrained9 or7 if both are unknown or uncertain7 such officer or person ma* be described b* an assumed appellation7 and the person who is served with the writ shall be deemed the person intended9 c? 4he place where he is so imprisoned or restrained7 if known9 d? A cop* of the commitment or cause of detention of such person7 if it can be procured without impairing the efficienc* of the remed*9 or7 if the imprisonment or restraint is without an* legal authorit*7 such fact shall appear a? <hether he has or has not the part* in his b? :f he has the part* in his custod* or power7 or under restraint7 the authorit* and the true and whole cause thereof7 set forth at large7 with a cop* of the writ7 order7 e1ecution7 or other process7 if an*7 upon which the part* is held9 c? :f the part* is in his custod* or power or is restrained b* him7 and is not produced7 particularl* the nature and gravit* of the sickness or infirmit* of such part* b* reason of which he cannot7 without danger7 be brought before the court or %udge9 d? :f he has had the part* in his custod* or power7 or under restraint7 and has transferred such custod* or restraint to another7

Contents of 6erifie' !etition0 a? ersonal circumstances of petitioner and of respondent responsible for the threat7 act or omission9 b? ;iolated or threatened right to life7 libert* and securit* of aggrieved part*7 and how committed with attendance circumstances detailed in supporting affidavits9 c? :nvestigation conducted7 specif*ing names7 personal circumstances and addresses of investigating authorit* or individuals7 as well as manner and conduct of investigation together with an* report9 d? Actions and recourses taken b* petitioner to determine the fate or whereabouts of aggrieved part* and identit* of person responsible for the threat7 act or omission9 and e? 4he relief pra*ed for. f? $a* include general pra*er for other %ust and e,uitable reliefs. Contents of return0 <ithin +" hours after service of the writ7 respondent shall file a verified written return together with the supporting affidavits7 which shall containE a? Lawful defenses9 b? Steps or actions taken to determine whereabouts of aggrieved part*9 c? All relevant information pertaining to threat7 act or omission against aggrieved part*9 d? :f respondent is a public official or emplo*ee7 further stateE !? verif* the identit* of aggrieved9 "? recover and preserve evidence related to death or disappearance of person identified in petition9 &? identif* witnesses and their statements9 '? determine cause7

Contents of 6erifie' !etition0 a? ersonal circumstances of petitioner and respondent9 b? 4he manner the right to privac* is violated or threatened and how it affects the right to life7 libert* or securit* of aggrieved part*9 c? Actions and recourses taken b* petitioner to secure the data or information9 d? Location of files7 registers or databases7 government office7 and the person in charge7 in possession or in control of the data or information7 if known9 e? Reliefs pra*ed for7 which ma* include the updating7 rectification7 suppression or destruction of the database or information or files kept b* respondent9 f? :n case of threats7 relief ma* include a pra*er for an order en%oining the act complained of9 and g? Such other reliefs as are %ust and e,uitable.

Contents of return0 a? Lawful defenses such as national securit*7 state secrets7 privileged communications7 confidentialit* of source of information9 b? Disclosure of data6info about petitioner7 nature of data6info7 purpose of collection9 c? Steps or actions taken b* respondent to ensure securit* and confidentialit* of data or information9 d? Currenc* and accurac* of data or information9 e? 3ther allegations relevant to resolution of the proceedings. V A 3ener" 'eni" of the " e3"tions in the !etition is not " o)e'.

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particularl* to whom7 at what time7 for what cause7 and b* what authorit* such transfer was made.

manner7 location and time of death or disappearance as well as pattern or practice9 (? identif* and apprehend person6s involved in the death6disappearance9 )? bring suspected offenders before a competent court. Effects of f"i ure to fi e return0 4he court7 %ustice or %udge shall proceed to hear the petition e1 parte.

Proce'ure for he"rin30 4he hearing on the petition shall be summar*. 0owever the court7 %ustice or %udge ma* call for a preliminar* conference to simplif* the issues and determine the possibilit* of obtaining stipulations and admissions from the parties. 4he hearing shall be from da* to da* until completed and given the same priorit* as petitions for habeas corpus. Interi$ re iefs "6"i "% e %efore fin" &u'3$ent0 a? ? 4emporar* rotection 3rder J protected in a government agenc* of b* an accredited person or private institution capable of keeping and securing their safet*9 b? :nspection 3rder J with a lifetime of ( da*s which ma* be e1tended7 ma* be opposed on the ground of national securit* or privileged information7 allows entr* into and inspect7 measure7 surve* or photograph the propert*9 c? roduction 3rder J to re,uire respondents to produce and permit inspection7 cop*ing or photographing of documents7 papers7 books7 accounts7 letters7 photographs7 ob%ects or tangible things that contain

Effects of f"i ure to fi e return0 4he court7 %ustice or %udge shall proceed to hear the petition e1 parte7 granting the petitioner such relief as the petition ma* warrant unless the court in its discretion re,uires petitioner to submit evidence. Proce'ure for he"rin30 4he hearing on the petition shall be summar*. 0owever the court7 %ustice or %udge ma* call for a preliminar* conference to simplif* the issues and determine the possibilit* of obtaining stipulations and admissions from the parties.

>#ot applicable?

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evidence.

d? <itness rotection 3rder J


the court ma* refer the witnessed to the D3/ Effect of fi in3 cri$in" "ction0 A criminal action first filed e1cludes the filing of the writ9 relief shall be b* motion in the criminal case. A criminal case filed subse,uentl* shall be consolidated with the petition for the writ of amparo. A!!e" 0 4o the SC under Rule '(7 within ( da*s from notice of adverse %udgment7 to be given the same priorit* as habeas corpus cases. Effect of fi in3 cri$in" "ction0 A criminal action first filed e1cludes the filing of the writ9 relief shall be b* motion in the criminal case9 A criminal case filed subse,uentl* shall be consolidated with the petition for the writ of habeas data. A!!e" 0 An* part* ma* appeal the decision within ( working da*s from the final %udgment or order to the SC b* wa* of etition for Review on Certiorari under Rule '( on pure ,uestions of law and facts or both7 to be given the same priorit* as habeas corpus and amparo cases.

A!!e" 0 4o the SC under Rule '(7 within '- hours from notice of %udgment. A writ of habeas corpus does not lie where petitioner has the remed* of appeal or certiorari because it will not be permitted to perform the functions of a writ of error or appeal for the purpose of reviewing mere errors or irregularities in the proceedings of a court having %urisdiction over the person and the sub%ect matter.

?u"ntu$ of !roof0 B* substantial evidence. rivate respondent to prove ordinar* diligence was observed in the performance of dut*. ublic official6emplo*ee respondent to prove e1traordinar* diligence was observed7 and cannot invoke the presumption that official dut* has been regularl* performed to evade responsibilit* or liabilit*.

?u"ntu$ of !roof0 4he court shall render %udgment within !D da*s from the time the petition is submitted for decision. :f the allegations are proven b* substantial evidence7 the court shall en%oin the act complained of7 or the deletion7 destruction7 or rectification of the erroneous data or information and grant other reliefs as ma* be %ust and e,uitable9 otherwise the privilege shall be denied.

R(LES ON /(STOD' O) MINORS AND WRIT O) >ABEAS /OR,(S IN RELATION TO /(STOD' O) MINORS ;AM NO& 01<02<02<S/= 4he 5amil* Court has e1clusive original %urisdiction to hear petitions for custod* of minors and the issuance of the writ of habeas corpus in relation to custod* of minors. 4he Court is tasked with the dut* of promulgating special rules or procedure for the disposition of famil* cases with the best interests of the minor as primar* consideration7 taking into account the Bnited #ations Convention on the Rights of the

Child. :t should be clarified that the writ is issued b* the 5amil* Court onl* in relation to custod* of minors. An ordinar* petition for habeas corpus should be filed in the regular Court. 4he issue of child custod* ma* be tackled b* the 5amil* Court without need of a separate petition for custod* being filed. 4he Committee chose the phrase Man* person claiming custod*N as it is broad enough to cover the followingE >a? the unlawful deprivation of the custod* of a minor9 or >b? which parent shall have the care and custod* of a minor7 when such

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parent is in the midst of nullit*7 annulment or legal separation proceedings. 4he hearings on custod* of minors ma*7 at the discretion of the court7 be closed to the public and the records of the case shall not be released to non-parties without its approval. A motion to dismiss the petition is not allowed e1cept on the ground of lack of %urisdiction over the sub%ect matter or over the parties. An* other ground that might warrant the dismissal of the petition shall be raised as an affirmative defense in the answer. Bpon the filing of the verified answer of the e1piration of the period to file it7 the court ma* order a social worker to make a case stud* of the minor and the parties and to submit a report and recommendation to the court at least three da*s before the scheduled pre-trial. >o$# D -art%r Or# r J 4he minor child sub%ect of the petition shall not be brought out of the countr* without prior order from the court while the petition is pending. 4he court motu propio or upon application under oath ma* issue e1 parte a hold departure order addressed to the B:D of the D3/ a cop* of the hold departure order within "' hours from its issuance and through the fastest available means of transmittal. WRIT O) AM,ARO ;AM NO& 05<7<12<S/= (See table above? WRIT O) AM,ARO Issu"nce of the =rit. Bpon the filing of the petition7 the court7 %ustice or %udge shall immediatel* order the issuance of the writ if on its face it ought to issue. 4he clerk of court shall issue the writ under the seal of the court9 or in case of urgent necessit*7 the %ustice or the %udge ma* issue the writ in his or her own hand7 and ma* deputi@e an* officer or person to serve it. 4he writ shall also set the date and time for summar* SEAR/> WARRANT *e(uisites for issuin3 se"rch )"rr"nt A search warrant shall not issue e1cept upon probable cause in connection with one specific offense to be determined personall* b* the %udge after e1amination under oath or affirmation of the complainant and the witness he ma* produce7 and particularl* describing the place to be searched and the things to be sei@ed which ma* be an*where in the

hearing of the petition which shall not be later than seven >+? da*s from the date of its issuance.

hilippines.

OMNIB(S WAIVER R(LE Defenses #ot leaded Deemed <aived S All defenses shall be raised in the return7 otherwise7 the* shall be deemed waived. WRIT O) >ABEAS DATA ;AM NO& 06<1<14<S/= Scoo: "ritH A0ai$a9i$ity o: "ritH Disting%is! :rom >a9 as /or-%s an# Am-aroH W!o may :i$ H /ont nts o: t! - titionH /onso$i#ationH E:: ct o: :i$ing o: a crimina$ actionH Instit%tion o: s -arat action (&ee table above) INSTAN/ES W>EN ,ETITION BE >EARD IN />AMBERS A hearing in chambers ma* be conducted where the respondent invokes the defense that the release of the data or information in ,uestion shall compromise national securit* or state secrets7 or when the data or information cannot be divulged to the public due to its nature or privileged character. />AN+E O) NAME ;R(LE 101= A change of name is a special proceeding to establish the status of a person involving his relation with others7 that is7 his legal position in7 or with regard to7 the rest of the communit*. :t is proceeding in rem and as such7 strict compliance with %urisdictional re,uirements7 particularl* on publication7 is essential in order to vest the court with %urisdiction therefor. 5or this purpose7 the onl* name that ma* be changed is the true or official name as recorded in the civil register. A mere change of name would not cause in oneCs e1isting famil* relations7 nor create new famil* rights and duties where none e1ists before. #either would it affect a personCs legal capacit*7 civil status or citi@enship.

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A change of name granted b* the court affects onl* the petitioner. A separate R(LE 101 ()hange of 4ame) etition should be filed in the R4C where the petitioner resides Civil Registrar is not a part*. Solicitor 8eneral to be notified b* service of a cop* of petition.

petition for change of name must be filed b* his wife and children. R(LE 106 ()ancellation or correction of entries in the civil registry) ;erified petition filed in the R4C where the corresponding Civil Registr* is located Civil Registrar is an indispensable part*. :f not made a part*7 proceedings are null and void. ReasonE he is interested part* in protecting the integrit* of public documents. Solicitor 8eneral must also be notified b* service of a cop* of the petition. B* a person interested in an* acts7 event7 order or decree All cancellation or correction of entries ofE (see %e o) 3roun's or inst"nces) Substantial and adversar* if change affects the civil status7 citi@enship or nationalit* of a part*9 Summar* if involves mere clerical errors. Groun's0 Cancellation or correction of entries ofE >a? births9 >b? marriages9 >c? deaths9 >d? legal separation9 >e? %udgments or annulments of marriage9 >f? %udgments declaring marriages void from the beginning9 >g? legitimations9 >h? adoptions9 >i? acknowledgments of natural children9 >%? naturali@ations9 >k? election7 loss or recover* of citi@enship9 >l? civil interdiction9 >m? %udicial determination of filiation9 >n? voluntar* emancipation of a minor9 and >o? changes of name.

RA 7026 ()lerical 6rror Act) etitions filed with the cit* or municipal civil registrar7 or with consul general for citi@ens living abroad

etition is filed b* the person desiring to change his name :nvolves change of name onl* :nvolves substantial changes

;erified petition in the form of affidavit is filed b* an* person having direct and personal interest in the correction :nvolves first name and nickname :nvolves clerical t*pographical errors or

Groun's0 a? #ame is ridiculous7 dishonorable or e1tremel* difficult to write or pronounce9 b? Change is a legal conse,uence of legitimation or adoption9 c? Change will avoid confusion9 d? 3ne has continuousl* used and been known since childhood b* a 5ilipino name and was unaware of alien parentage9 e? Change is based on a sincere desire to adopt a 5ilipino name to erase signs of former alienage7 all in good faith and without pre%udice to an*bod*9 and f? Surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose7 or that the change of name would pre%udice public interest. 3rder for hearing to be published once a week for three consecutive

Groun's0 a? 5irst name or nickname is found to be ridiculous7 tainted with dishonor or e1tremel* difficult to write or pronounce9 b? 4he first name or nickname has been habituall* and continuous used b* petitioner publicl* known b* that first name or nickname in the communit*9 c? Change will avoid confusion.

etition shall be published at least once a week for two

3rder shall also be published once a week for three

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weeks in a newspaper of general circulation in the province.

consecutive weeks in a newspaper of general circulation. Also to be posted in a conspicuous place for ten consecutive da*s. 2ntr* is incorrect. An appropriate administrative proceeding. Does not order. re,uire %udicial

2ntr* is correct but petitioner desires to change the entr* An appropriate adversar* proceeding Re,uires %udicial order

Service of %udgment shall be upon the civil register concerned Appeal ma* be availed of if %udgment or final order rendered affects substantial rights of person appealing.

4ransmittal of decision to civil registrar general :n case denied b* the cit* or municipal civil registrar or the consul general7 petitioner ma* either appeal the decision to the civil register general or file appropriate petition with proper court b* petition for review under Rule '&.

consecutive weeks in a newspaper of general circulation in the province7 and court shall cause reasonable notice to persons named in the petition. Cancellation or correction of correct or incorrect entries An appropriate summar* or adversar* proceeding depending on effects Directed or changed b* the cit* or municipal civil registrar or consul general without %udicial order Service of %udgment shall be upon the civil register concerned Appeal ma* be availed of if %udgment or final order rendered affects substantial rights of person appealing7 to the R4C or to the CA.

+RO(NDS )OR />AN+E O) NAME (! e"se see t"% e "%o6e) ABSENTEES ;R(LE 105= Stag !? "? &? s o: a9s nc C provisional absence declaration of absence presumption of death ,(R,OSE O) T>E R(LE 4he purpose of the Rule is to allow the court to appoint an administrator or representative to take care of the propert* of the person who is sought to be %udiciall* declared absent. :t also aims to have the court appoint the present spouse as administrator or administratri1 of the absent spouseLs properties7 or for the separation of properties of the spouses. W>O MA' )ILEH W>EN TO )ILE 4he following ma* file an application for the declaration of absence of a personE a? Spouse present9 b? 0eirs instituted in a will7 who ma* present an authentic cop* of the same9

c? Relatives who would succeed b* the law of intestac*9 and d? 4hose who have over the propert* of the absentee some right subordinated to the condition of his death. e? 4hose who have over the propert* of the absentee some right subordinated to the condition of his death. After the lapse of two >"? *ears from his disappearance and without an* news about the absentee or since the receipt of the last news7 or of five >(? *ears in case the absentee has left a person in charge of the administration of his propert*7 the declaration of his absence and appointment of a trustee or administrator ma* be applied for. <hen a person disappears from his domicile7 his whereabouts being unknown7 and without having left an agent to administer his propert*7 or the power conferred upon the agent has e1pired7 an* interested part*7 relative or friend7 ma* petition the Court of 5irst :nstance of the place where the absentee resided before his disappearance for the appointment of a person to represent him provisionall* in all that ma* be necessar*. /AN/ELLATION OR /ORRE/TION O)

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ENTRIES IN T>E /IVIL RE+ISTR' ;R(LE 106= Entri s s%9@ ct to canc $$ation or corr ction %n# r R%$ 106? in r $ation to RA 7026 !? births9 "? marriages9 &? deaths9 '? legal separations9 (? %udgments of annulments of marriage9 )? %udgments declaring marriages void from the beginning9 +? legitimations9 -? adoptions9 Correction ma* be effected in two wa*s. 3ne is without %udicial authorit* or b* administrative proceeding7 which is governed b* RA .D'- on matters relating to correction of mere clerical or t*pographical errors. 4he other is through %udicial or court proceedings7 which is governed b* Rule !D-. 4he petition for change of first names or nicknames ma* be allowed when such names or nicknames are ridiculous7 tainted with dishonor or e1tremel* difficult to write or pronounce9 or the new name or nickname has been used habituall* and continuousl* petitioner and has been publicl* known b* that first name or nickname in the communit*9 or the change will avoid confusion. A,,EALS IN S,E/IAL ,RO/EEDIN+ ;R(LE 107= .(D+MENTS AND ORDERS )OR W>I/> A,,EAL MA' BE TA8EN An interested person ma* appeal in special proceedings from an order or %udgment rendered b* a Court of 5irst :nstance or a /uvenile and Domestic Relations Court7 where such order or %udgmentE a? Allows or disallows a will9 b? Determines who are the lawful heirs of a deceased person7 or the distributive share of the estate to which such person is entitled9 c? Allows or disallows7 in whole or in part7 an* claim against the estate of a deceased person7 or an* claim presented on behalf of the estate in offset to a claim against it9 d? Settles the account of an e1ecutor7 administrator7 trustee or guardian9 e? Constitutes7 in proceedings relating to the settlement of the estate of a deceased person7 or the administration of a trustee

Bpon good and valid grounds7 the following entries in the civil register ma* be cancelled or correctedE

.? acknowledgments of natural children9 !D? naturali@ation !!? election7 loss or recover* of citi@enship !"? civil interdiction9 !&? %udicial determination of filiation9 !'? voluntar* emancipation of a minor9 and !(? changes of name. or guardian7 a final determination in the lower court of the rights of the part* appealing7 e1cept that no appeal shall be allowed from the appointment of a special administrator9 and :s the final order or %udgment rendered in the case7 and affects the substantial rights of the person appealing7 unless it be an order granting or den*ing a motion for a new trial or for reconsideration. W>EN TO A,,EAL Appeals in special proceedings necessitate a record on appeal as the original record should remain with the trial court9 hence the reglementar* period of thirt* >&D? da*s is provided for the perfection of appeals in special proceedings. MODES O) A,,EAL

f?

<hile under the concept in ordinar* civil

actions some of the orders stated in Sec. ! ma* be considered interlocutor*7 the nature of special proceedings declares them as appealable orders7 as e1ceptions to the provisions of Sec., *u e 81. 4husE cases decided b* the R4C in the e1ercise of its original %urisdiction shall be taken b* filing a notice of appeal with the court which rendered the %udgment or final order appealed from and serving a cop* thereof upon the adverse part*. #o record on appeal shall be re,uired e1cept in special proceedings and other cases of multiple or separate appeals where the law or the Rules so re,uire. :n such cases7 the record on appeal shall be filed and served in like manner.

!? Or#inary a-- a$& 4he appeal to the CA in

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"? , tition :or r 0i "& 4he appeal to the CA in


cases decided b* the R4C in the e1ercise of its appellate %urisdiction shall be b* petition for review in accordance with Rule '".

R(LE ON ADVAN/E DISTRIB(TION #otwithstanding a pending controvers* or appeal in proceedings to settle the estate of a decedent7 the court ma*7 in its discretion and upon such terms as it ma* deem proper and %ust7 permit that such part of the estate as ma* not be affected b* the controvers* or appeal be distributed among the heirs or legatees7 upon compliance with the conditions set forth in Rule .D of these rules.

&? , tition :or r 0i " on c rtiorari& :n all


cases where onl* ,uestions of law are raised or involved7 the appeal shall be to the SC b* petition for review on certiorari in accordance with Rule '(.

R(LES O) /RIMINAL ,RO/ED(RE


+ENERAL MATTERS .(RISDI/TION OVER S(B.E/T MATTER Derived from the law. Does not depend upon the consent or omission of the parties to the action or an* of them9 3b%ection that the court has no %urisdiction over the sub%ect matter ma* be made at an* stage of the proceeding7 and the right to make such ob%ection is never waived. /urisdiction over the sub%ect matter is determined upon the allegations made in the complaint7 irrespective of whether the plaintiff is entitled or not7 to recover upon the claim asserted therein7 a matter resolved onl* after and as a result of the trial. .(RISDI/TION OVER ,ERSON O) T>E A//(SED $a* be conferred b* consent e1pressl* or impliedl* given7 or it ma*7 b* ob%ection7 be prevented from attaching or being removed after it is attached. :f he fails to make his ob%ections in time7 he will be deemed to have waived it.

;R%$ s 110 125=

.(RISDI/TION !? 4he offense if one which the court is b* law authori@ed to take cogni@ance of9 "? 4he offense must have been committed within its territorial %urisdiction9 and &? 4he person charged with the offense must have been brought into its forum for trial7 forcibl* or b* warrant of arrest or upon his voluntar* submission to the court. .(RISDI/TION O) /RIMINAL /O(RTS (see &uris'iction of courts in ci6i !ro) W>EN IN.(N/TION MA' BE ISS(ED TO RESTRAIN /RIMINAL ,ROSE/(TION 82#2RAL RBL2E Criminal prosecution ma* not be restrained or sta*ed b* in%unction. 2RC2 4:3#SE !? 4o afford ade,uate protection to the constitutional rights of the accused9 "? 4hen necessar* for the orderl* administration of %ustice or to avoid oppression or multiplicit* of actions9 &? <hen there is a pre-%udicial ,uestion which is su% &u'ice; '? <hen the acts of the officer are without or in e1cess of authorit*9 (? <here the prosecution is under an invalid law7 ordinance or regulation9 )? <hen double %eopard* is clearl* apparent9 +? <here the court has no %urisdiction over the offense9 -? <here it is a case of persecution rather than prosecution9 .? <here the charges are manifestl* false and motivated b* the lust for vengeance9

/urisdiction over the person of the accused b* voluntar* appearance or surrender of the accused or b* his arrest.

REA(ISITES )OR E*ER/ISE O) /RIMINAL

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!D? <hen there is clearl* no prima facie case against the accused and a motion to ,uash on that ground has been denied9 and !!? 4o prevent the threatened unlawful arrest of petitioners. ,ROSE/(TION O) O))ENSES R(LE 110= /RIMINAL A/TIONSH >OW INSTIT(TED

prosecutor or upon elevation of the case to the Regional 4rial Court. RIMES T>AT /ANNOT BE ,ROSE/(TED DE O)I/IO

!? A#%$t ry

!? 5or

offenses where a preliminar* investigation is re,uired pursuant to section ! of Rule !!"7 b* filing the complaint with the proper officer for the purpose of conducting the re,uisite preliminar* investigation. "? 5or all other offenses7 b* filing the complaint or information directl* with the $unicipal 4rial Courts and $unicipal Circuit 4rial Courts7 or the complaint with the office of the prosecutor. &? :n $anila and other chartered cities7 the complaint shall be filed with the office of the prosecutor7 unless otherwise provided in their charters. 4he institution of the criminal action shall interrupt the period of prescription of the offense charged unless otherwise provided in special laws.

an# conc%9inag J to be prosecuted upon a complaint filed b* the offended spouse7 impleading both guilt* parties7 if both alive7 unless he shall have consented or pardoned the offenders9 "? S #%ction? a9#%ction? or acts or $asci0io%sn ss J to be prosecuted upon a complaint filed b* the offended part* or her parents7 grandparents7 or guardian7 unless e1pressl* pardoned b* the above named persons >in such stated order?9 &? D :amation im-%ting a - rson any o: t! :o$$o"ing crim s o: conc%9inag ? a#%$t ry? s #%ction? a9#%ction or $asci0io%sn ss J can be prosecuted onl* b* the part* defamed. 4he offended part*7 even if a minor7 has the right to initiate the prosecution of the offenses of seduction7 abduction and acts of lasciviousness independentl* of her parents7 grandparents or guardian7 unless she is incompetent or incapable of doing so. <here the offended part*7 who is a minor7 fails to file the complaint7 her parents7 grandparents7 or guardian ma* file the same. 4he right to file the action granted to parents7 grandparents or guardian shall be e1clusive of all other persons and shall be e1ercised successivel* in the order herein provided7 e1cept as stated in the preceding paragraph. /ONTROL O) ,ROSE/(TION 3nl* the Solicitor 8eneral ma* represent the eople of the hilippines on appeal. 4he private offended part* or complainant ma* ,uestion such ac,uittal or dismissal or appeal therefrom onl* insofar as the civil aspect is concerned7 in the name of the petitioner or appellant and not in the name of the eople of the hilippines. 4he rule that the Solicitor 8eneral is the law*er of the eople in appellate courts admits an e1ception7 Jin " c"ses e e6"te' to the S"n'i3"n%"+"n "n' fro$ the S"n'i3"n%"+"n to the Su!re$e Court, the Fffice of the F$%u's$"n, throu3h its s!eci" !rosecutor, sh" re!resent the Peo! e of the Phi i!!ines, e#ce!t in c"ses fi e' !ursu"nt to EF 1, 2, 18 "n' 18/A, issue' in 19<;.K 4he prosecution determines the charges to be filed and how the legal and factual elements in the case shall be utili@ed as components of the

reliminar* investigation is re,uired for offenses punishable b* at least ' *ears7 " months7 and ! da*7 unless the accused was lawfull* arrested without a warrant7 in which case7 an in,uest must have been conducted. W>O MA' )ILE T>E /RIMINAL A/TION !? 3ffended part* "? An* peace officer9 or &? 3ther public officer charged with the enforcement of the law violated.

All criminal actions commenced b* complaint or information shall be prosecuted under the direction and control of the prosecutor. :n the $unicipal 4rial Courts or $unicipal Circuit 4rial Courts when the prosecutor assigned thereto or to the case is not available7 the offended part*7 an* peace officer7 or public officer charged with the enforcement of the law violated ma* prosecute the case. 4his authorit* shall cease upon actual intervention of the

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information. <henever a criminal case is prosecuted and the State is the offended part*7 the case must alwa*s be prosecuted under control and guidance of the State through the government prosecutors. 4he prosecution ma* however be allowed to a private prosecutor upon compliance with the following conditionsE !? 4he public prosecutor has a heav* work schedule or there is no public prosecutor assigned in the cit* or province9 "? 4he private prosecutor is authori@ed in writing b* the Chief of the rosecutor 3ffice or the Regional State rosecutor &? 4he authorit* of the private prosecutor must be approved b* the court9 '? 4he private prosecutor shall continue to prosecute the case until the end of the trial unless the authorit* is withdrawn or otherwise revoked9 (? :n case of the withdrawal or revocation of the authorit* of the private prosecutor7 the same must be approved b* court. S())I/IEN/' O) /OM,LAINT OR IN)ORMATION A complaint or information is sufficient if it statesE !? 4he name of the accused9 "? 4he designation of the offense given b* the statute9 &? 4he acts or omissions complained of as constituting the offense9 '? 4he name of the offended part*9 (? 4he appro1imate date of the commission of the offense9 and )? 4he place wherein the offense was committed. <hen an offense is committed b* more than one person7 all of them shall be included in the complaint or information. :f the prosecutor refuses to include one accused7 the remed* is mandamus. DESI+NATION O) O))ENSE 4he complaint or information shall state the designation of the offense given b* the statute7 aver the acts or omissions constituting the offense7 and specif* its ,ualif*ing and aggravating circumstances. :f there is no designation of the offense7 reference shall be made to the section or subsection of the statute punishing it.

/A(SE O) T>E A//(SATION 4he acts or omissions complained of as constituting the offense and the ,ualif*ing and aggravating circumstances must be stated in ordinar* and concise language and not necessaril* in the language used in the statute but in terms sufficient to enable a person of common understanding to know what offense is being charged as well as its ,ualif*ing and aggravating circumstances and for the court to pronounce %udgment. D(,LI/IT' O) T>E O))ENSEH E*/E,TION

A complaint or information must charge onl*

one offense7 2RC2 4 when the law prescribes a single punishment for various offenses >Sec. !&?. 21ceptionE 4he law prescribes a single punishment for various offenses7 such as in continuing and comple1 crimes. AMENDMENT OR S(BSTIT(TION O) /OM,LAINT OR IN)ORMATION A complaint or information ma* be amended7 in form or in substance7 without leave of court7 at an* time before the accused enters his plea. After the plea and during the trial7 a formal amendment ma* onl* be made with leave of court and when it can be done without causing pre%udice to the rights of the accused. 0owever7 an* amendment before plea7 which downgrades the nature of the offense charged in or e1cludes an* accused from the complaint or information7 can be made onl* upon motion b* the prosecutor7 with notice to the offended part* and with leave of court. 4he court shall state its reasons in resolving the motion and copies of its order shall be furnished all parties7 especiall* the offended part*. :f it appears at an* time before %udgment that a mistake has been made in charging the proper offense7 the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in accordance with Section 19, *u e 119, provided the accused would not be placed in double %eopard*. 4he court ma* re,uire the witnesses to give bail for their appearance at the trial (Sec. 18).

E#ce!tion0 <hen a fact supervenes which


changes the nature of the crime charged

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in the information or upgrades it to a higher crime7 a substantial amendment ma* be made with a need for a rearraignment of the accused under the amended information. AMENDMENT AND S(BSTIT(TION DISTIN+(IS>EDC !? Amendment ma* involve either formal or substantial changes9 substitution necessaril* involves a substantial change from the original charge9 "? Amendment before plea has been entered can be effected without leave of court9 substitution of information must be with leave of court7 as the original information has to be dismissed9 &? <here the amendment is onl* as to form7 there is no need for another preliminar* investigation and the retaking of the plea of the accused9 in substitution of information7 another preliminar* investigation is entailed and the accused has to plead anew to the new information9 and '? An amended information refers to the same offense charged in the original information or to an offense which necessaril* includes or is necessaril* included in the original charge9 hence substantial amendments to the information after the plea has been taken cannot be made over the ob%ection of the accused7 for if the original information would be withdrawn7 the accused could invoke double %eopard*. Substitution re,uires or presupposes that the new information involves different offense which does not include or is not necessaril* included in the original charge9 hence the accused cannot claim double %eopard*. VEN(E O) /RIMINAL A/TIONS 82#2RAL RBL2E 4he criminal action shall be instituted and tried in the court of the municipalit* or territor* where the offense was committed or where an* of its essential ingredients occurred. 2RC2 4:3#SE !? +here an offense is committed in a railroad train, aircraft, or other public or private vehicle in the course of its trip / the criminal action shall be instituted and tried in the court of an* municipalit* or territor* where said

"?

&?

'? (?

)?

+?

train7 aircraft or other vehicle passed during its trip7 including the place of its departure and arrival. +here an offense is committed on board a vessel in the course of its voyage - the criminal action shall be instituted and tried in the court of the first port of entr* or of an* municipalit* or territor* where the vessel passed during such vo*age7 sub%ect to the generall* accepted principles of international law. 'elonies under Article 2 of the /evised Penal )ode - shall be cogni@able b* the court where the criminal action is first filed. Piracy 9 the venue of pirac*7 unlike all other crimes7 has no territorial limits. :t ma* be tried an*where. 7ibel 9 the action ma* be instituted at the election of the offended or suing part* in the province or cit*E a? <here the libellous article is printed and first published9 b? :f one of the offended parties is a private individual7 where said individual actuall* resides at the time of the commission of the offense9 c? :f the offended part* is a public official7 where the latter holds office at the time of the commission of the offense9 8n e-ceptional cases A to ensure a fair and impartial in,uir*. 4he SC shall have the power to order a change of venue or place of trial to avoid the miscarriage of %ustice. 8n cases filed under ?P 22 9 the criminal action shall be filed in the place where the check was issued and bounced. :n case of crossed-check7 in the place of depositor*.

INTERVENTION O) O))ENDED ,ART' <here the civil action for recover* of civil liabilit* is instituted in the criminal action pursuant to *u e 111, the offended part* ma* intervene b* counsel in the prosecution of the offense. ,ROSE/(TION O) /IVIL A/TION ;R(LE 111= R(LE ON IM,LIED INSTIT(TION O) /IVIL A/TION WIT> /RIMINAL A/TION

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4he 82#2RAL RBL2 is that the institution or filing of the criminal action includes the institution therein of the civil action for recover* of civil liabilit* arising from the offense charged7 2RC2 4 in the following casesE !? 4he offended part* waives the civil action9 "? 0e reserves his right to institute the civil action separatel*9 or &? 0e institutes the civil action prior to the criminal action. 4he e1ception to the reservation re,uirement is a claim arising out of a dishonored check under B ""7 where no reservation to file such civil action separatel* shall be allowed7 which means that the filing of the criminal action for violation of B "" shall be deemed to include the corresponding civil action and that unless a separate civil action has been filed before the institution of the criminal action7 no such civil action can be instituted after the criminal action has been filed as the same has been included therein. Another instance where no reservation shall be allowed and where a civil action filed prior to the criminal action has to be transferred to the subse,uentl* filed criminal action for %oint hearing is a claim arising from an offense which is cogni@able b* the Sandiganba*an. W>EN SE,ARATE /IVIL A/TION IS S(S,ENDED a? :f criminal action has been commenced earlier J separate civil action cannot be instituted until final %udgment has been entered in the criminal action. b? :f the criminal action is filed after the separate civil action has alread* been instituted J a. Civil action suspended7 in whatever stage it ma* be found before %udgment on the merits7 until final %udgment is rendered in the criminal action. b. Civil action ma*7 upon motion of the offended part*7 be consolidated with the criminal action in the court tr*ing the criminal action c. 2vidence alread* adduced in the civil action shall be deemed automaticall* reproduced in the criminal action d. <ithout pre%udice to the right of the prosecution to cross-e1amine the witnesses presented b* the offended

part* in the criminal case and the parties to present additional evidence. c? 4he consolidated criminal and civil actions shall be tried and decided %ointl*. d? During the pendenc* of the criminal action7 the running of prescription of the civil action which cannot be instituted separatel* or whose proceeding has been suspended shall be tolled. 4he bar on the institution or suspension of the separate civil actions has the following e1ceptionE :n the cases provided for in Artic es 32, 33, 38 "n' 21:; of the Ci6i Co'e7 the independent civil action ma* be brought b* the offended part*. :t shall proceed independentl* of the criminal action and shall re,uire onl* a preponderance of evidence. :n no case7 however7 ma* the offended part* recover damages twice for the same act or omission charged in the criminal action. E))E/T O) T>E DEAT> O) A//(SED OR /ONVI/T ON /IVIL A/TION 4he death of the accused after arraignment and during the pendenc* of the criminal action shall e1tinguish the civil liabilit* arising from the delict. 0owever7 the independent civil action instituted under section 3 of this *u e (*u e 111) or which thereafter is instituted to enforce liabilit* arising from other sources of obligation ma* be continued against the estate or legal representative of the accused after proper substitution or against said estate7 as the case ma* be. 4he heirs of the accused ma* be substituted for the deceased without re,uiring the appointment of an e1ecutor or administrator and the court ma* appoint a guardian ad litem for the minor heirs. 4he court shall forthwith order said legal representative or representatives to appear and be substituted within a period of thirt* >&D? da*s from notice. A final %udgment entered in favor of the offended part* shall be enforced against the estate of the deceased. :f the accused dies before arraignment7 the case shall be dismissed without pre%udice to an* civil action the offended part* ma* file against the estate of the deceased. ,RE.(DI/IAL A(ESTION

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A petition for suspension of the criminal action based upon the pendenc* of a pre%udicial ,uestion in a civil action ma* be filed in the office of the prosecutor or the court conducting the preliminar* investigation. <hen the criminal action has been filed in court for trial7 the petition to suspend shall be filed in the same criminal action at an* time before the prosecution rests. 82#2RAL RBL2E Criminal precedence of civil actions. 2RC2 4:3#SE a? independent civil actions b? pre%udicial ,uestion re%udicial ,uestion which arises in a case the resolution of which is a logical antecedent of the issues involved in said cases7 and the cogni@ance of which pertains to another tribunal. T! $ m nts o: a -r @%#icia$ E% stion ar C a? the previousl* instituted civil action involves an issue similar or intimatel* related to the issue raised in the subse,uent criminal action7 and b? the resolution of such issue determines whether or not the criminal action ma* proceed. action takes

complaint or information7 the filing fees therefor shall constitute a first lien on the %udgment awarding such damages. <here the amount of damages7 other than actual7 is specified in the complaint or information7 the corresponding filing fees shall be paid b* the offended part* upon filing thereof in court. 21cept as otherwise provided in these Rules7 no filing fees shall be re,uired for actual damages. <ith respect to criminal actions for violations of B ""7 the offended part* shall pa* in full the filing fees based on the face value of the checks as the actual damages. ,RELIMINAR' INVESTI+ATION ;R(LE 112= reliminar* investigation is an in,uir* or proceeding for the purpose of determining whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the respondent is probabl* guilt* thereof7 and should be held for trial. NAT(RE O) RI+>T 4he right to preliminar* investigation is not a constitutional grant9 it is merel* statutor* and ma* be invoked onl* when specificall* created b* statute. :t is a component part of due process in criminal %ustice. reliminar* investigation is a function that belongs to the public prosecutor. :t is an e1ecutive function7 although the prosecutor7 in the discharge of such function7 is a ,uasi-%udicial authorit* tasked to determine whether or not a criminal case must be filed in court. 4he right to preliminar* investigation ma* be waived b* the accused either e1pressl* or impliedl*. 4he posting of a bond b* the accused constitutes such a waiver7 such that even if the warrant was irregularl* issued7 an* infirmit* attached to it is cured when the accused submits himself to the %urisdiction of the court b* appl*ing for bail. :t is also cured b* submitting himself to arraignment ,(R,OSES O) ,RELIMINAR' INVESTI+ATION 4he basic purpose of preliminar* investigation is to determine whether a crime has been

42S4E :t must appear not onl* that the civil case involves the same facts upon which the criminal prosecution is based7 but also that the resolution of the issues in said civil action would be necessaril* determinative of the guilt or innocence of the accused. A pre%udicial ,uestion can be interposed at the 3ffice of the rosecutor7 but9 !? 4he ,uestion can also be raised in court9 "? :f raised7 the court should merel* suspend the criminal case9 &? 4he court must wait for a motion7 otherwise7 that is a waiver9 '? 4he court cannot $otu !ro!io suspend the criminal case. R(LE ON )ILIN+ )EES IN /IVIL A/TION DEEMED INSTIT(TED WIT> T>E /RIMINAL A/TION <hen the offended part* seeks to enforce civil liabilit* against the accused b* wa* of moral7 nominal7 temperate or e1emplar* damages without specif*ing the amount thereof in the

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committed and whether there is probable cause to believe that the accused is guilt* thereof. 8enerall*7 preliminar* investigation has a threefold purposeE !? 4o in,uire concerning the commission of crime and the connection of accused with it7 in order that he ma* be informed of the nature and character of the crime charged against him7 and if there is probable cause for believing him guilt*7 that the state ma* take the necessar* steps to bring him to trial9 "? 4o preserve the evidence and keep the witnesses within the control of the state9 and &? 4o determine the amount of bail7 if the offense is bailable. W>O MA' /OND(/T DETERMINATION O) E*ISTEN/E O) ,ROBABLE /A(SE 3n the basis of the evidence before him7 the investigating office must decide whether to dismiss the case or to file the information in court. 4his involves the determination of probable cause. 4he Court has maintained the polic* of noninterference in the determination of the e1istence of probable cause7 provided there is no grave abuse in the e1ercise of such discretion. 4he rule is based not onl* upon respect for the investigator* and prosecutorial powers of prosecutors but upon practicalit* as well. O))I/ERS A(T>ORIGED TO /OND(/T ,RELIMINAR' INVESTI+ATION !? rovincial or cit* prosecutors and their assistants9 "? #ational and Regional State rosecutors9 and &? 3ther officers as ma* be authori@ed b* law >C3$2L2C7 C887 3mbudsman? 4heir authorit* to conduct preliminar* investigation shall include all crimes cogni@able b* the proper court in their respective territorial %urisdictions. RESOL(TION O) INVESTI+ATION ,ROSE/(TOR :f the investigating prosecutor finds cause to hold the respondent for trial7 he shall prepare the resolution and information. 0e shall certif* under oath in the information that he7 or as shown b* the record7 an authori@ed officer7 has personall*

e1amined the complainant and his witnesses9 that there is reasonable ground to believe that a crime has been committed and that the accused is probabl* guilt* thereof9 that the accused was informed of the complaint and of the evidence submitted against him9 and that he was given an opportunit* to submit controverting evidence. 3therwise7 he shall recommend the dismissal of the complaint. <ithin five >(? da*s from his resolution7 he shall forward the record of the case to the provincial or cit* prosecutor or chief state prosecutor7 or to the 3mbudsman or his deput* in cases of offenses cogni@able b* the Sandiganba*an in the e1ercise of its original %urisdiction. 4he* shall act on the resolution within ten >!D? da*s from their receipt thereof and shall immediatel* inform the parties of such action. #o complaint or information ma* be filed or dismissed b* an investigating prosecutor without the prior written authorit* or approval of the provincial or cit* prosecutor or chief state prosecutor or the 3mbudsman or his deput*. <here such the recommendation of dismissal was disapproved on the ground that a probable cause e1ists7 the chief prosecutor ma* file the information against the respondent7 or direct another assistant prosecutor or state prosecutor to do so without conducting another preliminar* investigation. REVIEW A preliminar* investigation falls under the authorit* of the state prosecutor who is given b* law the power to direct and control criminal actions. 0e is7 however7 sub%ect to the control6appeal to the Secretar* of /ustice7 which the latter ma* e1ercise $otu !ro!io or upon petition of the proper part*. 4he Secretar* of /ustice e1ercises the power of direct control and supervision over prosecutors7 and ma* thus affirm7 nullif*7 reverse or modif* their rulings. :n reviewing resolutions of state prosecutors7 the Secretar* of /ustice is not precluded from considering errors7 although unassigned7 for the purpose of determining whether there is probable cause for filing cases in court. An aggrieved part* ma* appeal b* filing a verified petition for review with the Secretar* and b* furnishing copies thereof to the adverse part* and prosecution office issuing the appealed resolution. 4he appeal shall be taken within !( da*s from receipt of the resolution or of the

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denial of the motion for reconsideration6reinvestigation if one has been filed within !(v da*s from receipt of the assailed resolution. 3nl* one motion for reconsideration shall be allowed. Bnless the Secretar* directs otherwise7 the appeal S0ALL #34 S4AH the filing of the corresponding information in court on the basis of the finding of probable cause in the assailed decision. :f the Secretar* of /ustice reverses or modifies the resolution of the provincial or cit* prosecutor or chief state prosecutor7 he shall direct the prosecutor concerned either to file the corresponding information without conducting another preliminar* investigation7 or to dismiss or move for dismissal of the complaint or information with notice to the parties. W>EN WARRANT O) ARREST MA' ISS(E ;a= By t! R giona$ Tria$ /o%rt <ithin ten >!D? da*s from the filing of the complaint or information7 the %udge shall personall* evaluate the resolution of the prosecutor and its supporting evidence. 0e ma* immediatel* dismiss the case if the evidence on record clearl* fails to establish probable cause. :f he finds probable cause7 he shall issue a warrant of arrest7 or a commitment order if the accused has alread* been arrested pursuant to a warrant issued b* the %udge who conducted the preliminar* investigation or when the complaint or information was filed pursuant to section ) of this Rule. :n case of doubt on the e1istence of probable cause7 the %udge ma* order the prosecutor to present additional evidence within five >(? da*s from notice and the issue must be resolved b* the court within thirt* >&D? da*s from the filing of the complaint or information. ;9= By t! M%nici-a$ Tria$ /o%rt <hen re,uired pursuant to the second paragraph of section ! of this Rule7 the : of cases falling under the original %urisdiction of the $4Cs shall be conducted b* the prosecutor. 1he !roce'ure for the issu"nce of " )"rr"nt of "rrest %+ the &u'3e sh" %e 3o6erne' %+ !"r"3r"!h (") of this section (Sec. 5, *u e112). ;c= W! n "arrant o: arr st not n c ssary A warrant of arrest shall not issue if the accused is alread* under detention

pursuant to a warrant issued b* the $unicipal 4rial Court in accordance with paragraph >b? of this section7 or if the complaint or information was filed pursuant to section ) of this Rule or is for an offense penali@ed b* fine onl*. 4he court shall then proceed in the e1ercise of its original %urisdiction (Sec. 5, "s "$en'e' %+ A, .5/</2;/SC). /ASES NOT REA(IRIN+ A ,RELIMINAR' INVESTI+ATION

!? Cases in which the imposable penalt*


D32S #34 2RC22D four >'? *ears7 two >"? months and one >!? da* "? <hen the accused has undergone in,uest proceeding. REMEDIES O) A//(SED I) T>ERE WAS NO ,RELIMINAR' INVESTI+ATION Refuse to enter a plea upon arraignment and ob%ect to further proceedings upon such grounds 4o hold in abe*ance the proceedings and order6insist the prosecutor to hold preliminar* investigation. Raised the lack of : as an error in appeal :f the case has been conducted7 the accused ma* within ( da*s from the time he learns of its filing ask for a preliminar* investigation. 4he five-da* period to file the motion for preliminar* investigation is mandator*7 and an accused is entitled to ask for preliminar* investigation b* filing the motion within the said period. 4he failure to file the motion within the five-da* period amounts to a waiver of the right to ask for preliminar* investigation. Apart from such waiver7 posting bail without previousl* or simultaneousl* demanding for a preliminar* investigation %ustifies denial of the motion for investigation. INA(EST :t is a summar* investigation conducted b* a public prosecutor in criminal cases involving persons arrested and detained without the benefit of a warrant of arrest issued b* the court for the purpose of determining whether or not said persons should remain under custod* and correspondingl* be charged in court. Such proceedings must terminate within the period prescribed under Art. 125 of the *e6ise' Pen" Co'e.

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Re,uired where the crime is punishable b* at least ' *ears7 " months and ! da*. ARREST ;R(LE 111= Arrest is the taking of a person into custod* in order that he ma* be bound to answer for the commission of an offense. >OW AN ARREST MADEI

4he officer need not have the warrant in his possession at the time of the arrest but after the arrest7 if the person arrested so re,uires7 the warrant shall be shown to him as soon as practicable. M t!o# o: arr st 9y o::ic r "it!o%t "arrant 4he officer shall inform the person to be arrested of his authorit* and the cause of the arrest7 unless the latter is either engaged in the commission of an offense7 is pursued immediatel* after its commission7 has escaped7 flees or forcibl* resists before the officer has opportunit* to so inform him7 or when the giving of such information will imperil the arrest. M t!o# o: arr st 9y -ri0at - rson A private person shall inform the person to be arrested of the intention to arrest him and cause of the arrest7 unless the latter is either engaged in the commission of an offense7 is pursued immediatel* after its commission7 or has escaped7 flees or forcibl* resists before the person making the arrest has opportunit* to so inform him7 or when the giving of such information will imperil the arrest. REA(ISITES O) A VALID WARRANT O) ARREST R E%isit s :or arr st "arrant iss% # 9y a RT/ @%#g under Sec. 5, *u e 1120 !? <ithin !D da*s from the filing of the complaint or information "? 4he %udge shall personall* evaluate the resolution of the prosecutor and its supporting evidence. &? :f he finds probable cause7 he shall issue a warrant of arrest '? :n case of doubt on the e1istence of probable cause a. 4he %udge ma* order the prosecutor to present additional evidence within ( da*s from notice9 and b. 4he issue must be resolved b* the court within &D da*s from the filing of the complaint of information. R E%isit s :or iss%ing s arc! "arrant under Sec. 8, *u e 12;0 !? :t must be issued upon probable cause in connection with one specific offense9

!? b* an actual restraint of a person to be


arrested7 3R "? b* his submission to the custod* of the person making the arrest. #o violence or unnecessar* force shall he used in making an arrest. 4he person arrested shall not be sub%ect to a greater restraint than is necessar* for his detention. ARREST WIT>O(T WARRANT?W>EN LAW)(L

!? <hen7 in his presence7 the person to be


arrested has committed7 is actuall* committing7 or is attempting to commit an offense9 <hen an offense has %ust been committed and he h"s !ro%"% e c"use to %e ie6e %"se' on his !erson" 9no) e'3e of f"cts or circu$st"nces th"t the !erson to %e "rreste' h"s co$$itte' the cri$e; <hen the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final %udgment or is temporaril* confined while his case is pending7 or has escaped while being transferred from one confinement to another. <here a person who has been lawfull* arrested escape or is rescued9 <hen the bondsmen arrests a prisoner out on bail for the purpose of bringing him to court9 <here the accused attempts to leave the countr* without the permission of the court. MET>OD O) ARREST M t!o# o: arr st 9y o::ic r 9y 0irt% o: "arrant 4he officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest7 e1cept when he flees or forcibl* resists before the officer has opportunit* to so inform him7 or when the giving of such information will imperil the arrest.

"?

&?

'? (? )?

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"? 4he probable cause must be determined b* the %udge himself and not b* the applicant or an* other person9 &? :n the determination of probable cause7 the %udge must e1amine under oath or affirmation7 the complainant and the witness he ma* produce9 and '? 4he warrant issued must particularl* describe the person to be arrested in connection with a specific offense or crime. DETERMINATION O) ,ROBABLE /A(SE )OR ISS(AN/E O) WARRANT O) ARREST :t is the %udge alone who determines the probable cause for the issuance of warrant of arrest. :t is not for the provincial fiscal or prosecutor to ascertain. DISTIN+(IS> ,ROBABLE /A(SE O) )IS/AL )ROM T>AT O) A .(D+E 4he 'eter$in"tion %+ the !rosecutor of probable cause is for the purpose of either filing an information in court or dismissing the charges against the respondent7 which is an e1ecutive function. 4he 'eter$in"tion %+ the &u'3e of probable cause begins onl* after the prosecutor has filed the information in court and the latterCs determination of probable cause is for the purpose of issuing an arrest warrant against the accused7 which is %udicial function. . A %udge cannot be compelled to issue a warrant of arrest if he or she believes honestl* that there is no probable cause for doing so. robable cause to hold a person for trial refers to the finding of the investigating prosecutor after the conduct of a preliminar* investigation7 that there is sufficient ground to hold a well-founded belief that a crime has been committed and that the respondent is probabl* guilt* thereof and should be held for trial. Based on such finding7 the investigating prosecutor files the corresponding complaint or information in the competent court against the accused. BAIL ;R(LE 112= NAT(RE All persons7 e1cept those charged with offenses punishable b* reclusion perpetua when evidence of guilt is strong7 shall before conviction7 be

bailable b* sufficient sureties7 or be released on recogni@ance as ma* be provided b* law. 4he right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. 21cessive bail shall not be re,uired (Sec. 13, Art. III, 1he Constitution). Bail is the securit* re,uired b* the court and given b* the accused to ensure that the accused appear before the proper court at the scheduled time and place to answer the charges brought against him. :t is awarded to the accused to honor the presumption of innocence until his guilt is proven be*ond reasonable doubt7 and to enable him to prepare his defense without being sub%ect to punishment prior to conviction. :ts main purpose is to relieve an accused from the rigors of imprisonment until his conviction and secure his appearance at the trial. 4he person seeking provisional release need not wait for a formal complaint or information to be filed against him as it is available to all persons where the offense is bailable7 so long as the applicant is in the custod* of the law. 8in#s o: 9ai$C a? /or-orat 9on# S one issued b* a corporation licensed to provide bail subscribed %ointl* b* the accused and an officer dul* authori@ed b* its board of directors. b? ,ro- rty 9on# S an undertaking constituted as a lien on the real propert* given as securit* for the amount of the bond. c? R cogniLanc S an obligation of record entered into usuall* b* the responsible members of the communit* before some court or magistrate dul* authori@ed to take it7 with the condition to do some particular act7 the most usual act being to assure the appearance of the accused for trial. d? /as! # -osit S the mone* deposited b* the accused or an* person acting on his behalf7 with the nearest collector of internal revenue7 or provincial7 cit* or municipal treasurer. Considered as bail7 it ma* be applied to the pa*ment of an* fees and costs7 and the e1cess7 if an*7 shall be returned to the accused or to whoever made the deposit. W>EN A MATTER O) RI+>TH E*/E,TIONS

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All persons in custod* shall be admitted to bail as a matter of right7 with sufficient sureties7 or released on recogni@anceE a? before or after conviction b* the $4C7 and b? before conviction b* the R4C of an offense #34 punishable b* death7 reclusion perpetua7 or life imprisonment and the evidence of guilt is strong. :f bail can be granted in deportation cases and e1tradition cases9 both are administrative proceedings where the innocence or guilt of the person detained is not in issue. Bail is a matter of right before final conviction7 but the rule is not absolute. 4he e1ception is when a person is charged with a capital offense when the evidence of guilt is strong7 or when the offense for which on is charged is punishable b* reclusion perpetua. 4he e1ception to this rule7 however7 is even if a person is charged with a capital offense where the evidence of guilt is strong7 if the accused has failing health7 hence7 for humanitarian reasons7 he ma* be admitted to bail7 but that is discretionar* on the part of the court. W>EN A MATTER O) DIS/RETION

a? 4hat he is a recidivist7 ,uasi-recidivist7 or habitual delin,uent7 or has committed the crime aggravated b* the circumstance of reiteration9 b? 4hat he has previousl* escaped from legal confinement7 evaded sentence7 or violated the conditions of his bail without valid %ustification9 c? 4hat he committed the offense while under probation7 parole7 or under conditional pardon9 d? 4hat the circumstances of his case indicate the probabilit* of flight if released on bail9 or e? 4hat there is undue risk that he ma* commit another crime during the pendenc* of the appeal. <here the grant of bail is a matter of discretion7 or the accused seeks to be released on recogni@ance7 the application ma* onl* be filed in the court where the case is pending7 whether on preliminar* investigation7 trial7 or on appeal. >EARIN+ O) A,,LI/ATION )OR BAIL IN /A,ITAL O))ENSES +(IDELINES IN )I*IN+ AMO(NT O) BAIL

!? Before conviction7 in case of offenses punishable b* reclusion perpetua7 life imprisonment or death9 :f it is determined that it is #34 strong7 then bail is a matter of right. 4here is no more discretion of the court in den*ing the bail7 the moment there is a determination that the evidence of guilt is not strong. "? After conviction b* the R4C of a noncapital offense. 4he application for bail ma* be filed and acted upon b* the trial court despite the filing of a notice of appeal7 provided it has not transmitted the original record to the appellate court. 0owever7 if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable7 the application for bail can onl* be filed with and resolved b* the appellate court. :f the penalt* imposed b* the trial court is imprisonment e1ceeding si1 >)? *ears7 the accused shall be denied bail7 or his bail shall be cancelled upon a showing b* the prosecution7 with notice to the accused7 of the following or other similar circumstancesE

A bail application in capital offense does not onl* involve the right of the accused to temporar* libert*7 but likewise the right of the State to protect the people and the peace of the communit* from dangerous elements. 4he prosecution must be given ample opportunit* to show that the evidence of guilt is strong7 because it is on the basis of such evidence that %udicial discretion is e1ercised in determining whether the evidence of guilt is strong is a matter of %udicial discretion. A hearing is absolutel* indispensable. :n receiving evidence on bail7 while a court is not re,uired to tr* the merits of the case7 he must nevertheless conduct a summar* hearing to determine the weight of the evidence for purposes of the bail. A %udge should not hear a petition for bail in capital offenses on the same da* that the petition was filed. 0e should give the prosecution a reasonable time within which to oppose the same. #either is he supposed to grant bail solel* on the belief that the accused will not flee during the pendenc* of the case b* reason of the fact that he had even voluntaril* surrendered. ;oluntar* surrender is merel* a mitigating circumstance in decreasing the penalt* but is not

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a ground for granting bail to an accused charged with a capital offense. a? 5inancial abilit* of the accused to give bail9 b? #ature and circumstances of the offense9 c? enalt* for the offense charged9 d? Character and reputation of the accused9 e? Age and health of the accused9 f? <eight of the evidence against the accused9 21cessive bail shall not be re,uired. BAIL W>EN NOT REA(IRED !? <hen the offense charged is a violation of an ordinance7 light felon* or a criminal offense the imposable penalt* does not e1ceed ) months of imprisonment and6or fine of "7DDD.DD under RA )D&). "? <here the accused has applied for probation and before the same has been resolved but no bail was filed or the accused is incapable of filing one7 in which case he ma* be released on recogni@ance. &? :n case of *outhful offender held for ph*sical or mental e1amination7 trial or appeal7 if unable to furnish bail and under the circumstances under P4 ;.3, "s "$en'e'. '? <hen the law or these Rules so provide. (? <hen a person has been in custod* for a period e,ual to or more than the possible ma1imum imprisonment prescribed for the offense charged7 he shall be released immediatel*7 without pre%udice to the continuation of the trial or the proceedings on appeal. )? A person accused of an offense with a ma1imum penalt* of destierro7 he shall be released after &D da*s of preventive imprisonment. IN/REASE OR RED(/TION O) BAIL After the accused is admitted to bail7 the court ma*7 upon good cause7 either increase or reduce its amount. <hen increased7 the accused ma* be committed to custod* if he does not give bail in the increased amount within a reasonable period. An accused held to answer a criminal charge7 who is released without bail upon filing of the complaint or information7 ma*7 at an* subse,uent stage of the proceedings whenever a strong showing of guilt appears to the court7 be re,uired to give bail in the amount fi1ed7 or in lieu thereof7 committed to custod*.

g?

robabilit* of the accused appearing at the trial9 h? 5orfeiture of other bail9 i? 4he fact that the accused was a fugitive from %ustice when arrested9 and %? endenc* of other cases where the accused is on bail. )OR)EIT(RE AND /AN/ELLATION O) BAIL <hen the presence of the accused is re,uired7 his bondsmen shall be notified to produce him on a given date and time. :f the accused fails to appear7 his bail shall be declared forfeited and the bondsmen given thirt* >&D? da*s within which to produce their principal and to show cause wh* no %udgment should be rendered against them for the amount of their bail. <ithin the said period7 the bondsmen mustE a? produce the bod* of their principal or give the reason for his non-production9 and b? e1plain wh* the accused did not appear before the court when first re,uired to do so. 5ailing in these two re,uisites7 a %udgment shall be rendered against the bondsmen7 %ointl* and severall*7 for the amount of the bail. 4he court shall not reduce or otherwise mitigate the liabilit* of the bondsmen7 unless the accused has been surrendered or is ac,uitted. Bpon application of the bondsmen7 with due notice to the prosecutor7 the bail ma* be cancelled upon surrender of the accused or proof of his death. 4he bail shall be deemed automaticall* cancelled upon ac,uittal of the accused7 dismissal of the case7 or e1ecution of the %udgment of conviction. :n all instances7 the cancellation shall be without pre%udice to an* liabilit* on the bail. A,,LI/ATION NOT A BAR TO OB.E/TIONS IN ILLE+AL ARREST? LA/8 O) OR IRRE+(LAR ,RELIMINAR' INVESTI+ATION 4he posting of the bail does not constitute a waiver of an* ,uestion on the irregularit* attending the arrest of person. 0e can still ,uestion the same before arraignment7 otherwise7 the right to ,uestion it is deemed waived.

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An application for or admission to bail shall not bar the accused from challenging the validit* of his arrest or the legalit* of the warrant issued therefor7 or from assailing the regularit* or ,uestioning the absence of a preliminar* investigation of the charge against him7 provided that he raises them before entering his plea. 4he arraignment of an accused is not a prere,uisite to the conduct of hearings on his petition for bail. A person is allowed to petition for bail as soon as he is deprived of his libert* b* virtue of his arrest or voluntar* surrender. Bail should be granted before arraignment9 otherwise the accused ma* be precluded from filing a motion to ,uash. >OLD DE,ART(RE ORDER M B(REA( O) IMMI+RATION WAT/>LIST Supreme Court Cir. -o. 39/9: '"te' 2une 19, 199: limits the authorit* to issue hold departure orders to the R4Cs in criminal cases within their e1clusive %urisdiction. Conse,uentl*7 $4C %udges have no authorit* to issue hold-departure orders9 neither does it has authorit* to cancel one which he issued. A court has the power to prohibit a person admitted to bail from leaving the hilippines. 4his is necessar* conse,uence of the nature and function of a bail bond. <here it appears that the accused had the propensit* to evade or disobe* lawful orders7 the issuance of a hold departure order is warranted. T! s cr tary o: @%stic may iss% a "atc!$ist or# r in t! :o$$o"ing circ%mstanc sC !? Against the accused7 irrespective of nationalit*7 in criminal cases pending trial before the R4C9 "? Against the respondent7 irrespective of nationalit*7 in criminal cases pending preliminar* investigation7 petition for review7 or motion for reconsideration before D3/ or an* of its provincial or cit* offices. &? Against an* person7 either motu proprio7 or upon re,uest of an* government agenc*7 including commissions7 task forces or similar entities created b* the office of the resident7 pursuant to Anti A1r"ffic9in3 in Persons Acts of 2..3, and6or in connection with an* investigation being conducted b* it7 or in the interest of national securit*7 public safet* of public health.

RI+>TS O) T>E A//(SED ;R(LE113= RI+>TS O) A//(SED AT T>E TRIAL !? 4o be R2SB$2D :##3C2#4 until the contrar* is proved be*ond reasonable doubt. "? 4o be :#53R$2D 35 402 #A4BR2 A#D CABS2 35 402 ACCBSA4:3# against him. &? 4o be R2S2#4 A#D D252#D :# 2RS3# A#D BH C3B#S2L A4 2;2RH S4A82 35 402 R3C22D:#8S7 from arraignment to promulgation of the %udgment. '? 4o 42S4:5H AS A <:4#2SS :# 0:S 3<# B20AL5 but sub%ect to cross-e1amination on matters covered b* direct e1amination. 0is silence shall not in an* manner pre%udice him9 (? 4o be 2R2$ 4 5R3$ B2:#8 C3$ 2LL2D 43 B2 A <:4#2SS A8A:#S4 0:$S2L5. )? 4o C3#5R3#4 A#D CR3SS-2RA$:#2 402 <:4#2SS2S against him at the trial. +? 4o have C3$ BLS3RH R3C2SS issued to secure the attendance of witnesses and production of other evidence in his behalf. -? 4o have S 22DH7 :$ AR4:AL A#D BBL:C 4R:AL. .? 4o appeal in all cases allowed and in the manner prescribed b* law. RI+>TS O) ,ERSONS (NDER /(STODIAL INVESTI+ATION !? 4o be informed of his rights to remain silent and to have competent and independent counsel preferabl* of his own choice. :f the person cannot afford the services of counsel7 he must be provided with one. 4hese rights cannot be waived e1cept in writing and in the presence of counsel9 "? #o torture7 force7 violence7 intimidation or an* other means which vitiate the free will shall be used against him. Secret detention places7 solitar*7 incommunicado7 or other similar forms of detention are prohibited9 &? An* confession or admission in violation of Self-:ncrimination Clause shall be inadmissible in evidence against him9 '? 4he law shall provide for penal and civil sanctions as well as compensation to aid rehabilitation of victims of torture or similar practice7 and their families. (NDER RA 5612 4he following are the rights of persons arrested7 detained or under custodial investigationE

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!? 4o be assisted b* counsel at all times9 "? Shall be informed 7 in a language known to and understood b* him7 of his right to remain silent and to have competent and independent counsel7 preferabl* of his own choice7 who shall at all times be allowed to confer privatel* with him9 &? 4he custodial investigation report shall be read and ade,uatel* e1plained to him b* his counsel or b* the assisting counsel in the language or dialect known him9 otherwise7 such investigation report shall be null and void9 '? An* e1tra%udicial confession made b* him shall be in writing and signed in the presence of his counsel or upon a valid waiver7 and in the presence of his an* immediate famil* members7 otherwise7 such e1tra%udicial confession shall be inadmissible in an* proceeding9 (? An* waiver under the provisions of Art. 125 of the *PC or under custodial investigation7 shall be in writing signed b* such person in the presence of his counsel9 otherwise such waiver shall be null and void and of no effect9 )? Shall be allowed visits b* his or conferences with an* member of his immediate famil*7 or an* medical doctor or priest or religious minister chosen b* him or b* his counsel7 or b* an* national #83 dul* accredited b* the 3ffice of the resident. T>REE RI+>TS ARE MADE AVAILABLE B' &6). 12(1)>

"? a ma*or7 unless the accused approaches him as counselor or adviser9 &? a baranga* captain9 '? an* other whose interest ma* be adverse to that of the accused.

c? 4he right to be informed of his rights


S the right guaranteed here is more than what is shown in television shows where the police routinel* reads out the rights from a note card9 he must also e1plain their effects in practical terms. /(STODIAL INVESTI+ATION 4he right to custodial investigation begins onl* when the investigation is no longer a general in,uir* into an unsolved crime but has begun to focus on a particular suspect7 the suspect has been taken into police custod*7 the police carr* out a process of interrogations that lends itself to eliciting incriminating statements. :t has e1tended to situations in which an individual has not been formall* arrested but has merel* been MinvitedN for ,uestioning. ARRAI+NMENT AND ,LEA ;R(LE 114= :t is the mode of implementing the constitutional right to be informed of the nature of the accusation against him7 and to fi1 the identit* of the accused. SOME R(LES ON ARRAI+NMENTC a? 4rial in absentia is allowed onl* after arraignment9 b? /udgment is generall* void if the accused has not been arraigned9 c? 4here can be no arraignment in absentia9 d? :f the accused went to trial without arraignment7 but his counsel had the opportunit* to cross-e1amine the witnesses of the prosecution and after prosecution7 he was arraigned7 the defect was cured. ARRAI+NMENT AND ,LEA? >OW MADE

a? 4he right to remain silent Bnder the right against

selfincrimination in Sec. 1:, onl* an accused has the absolute right to remain silent. A person who is not an accused ma* assume the stance of silence onl* when asked an incriminator* ,uestion. Bnder Sec. 12, however7 a person under investigation has the right to refuse to answer an* ,uestion. 0is silence7 moreover7 ma* not be used against him.

b? 4he right to counsel S 21ample of


those who are not impartial counsel areE !? Special counsel7 private or public prosecutor7 counsel of the police7 or a municipal attorne* whose interest is adverse to that of the accused9

a? 4he accused must be arraigned before the


court where the complaint or information was filed or assigned for trial. 4he arraignment shall be made in open court b* the %udge or clerk b* furnishing the accused with a cop* of the complaint or information7 reading the same in the language or dialect known to

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him7 and asking him whether he pleads guilt* or not guilt*. b? <hen the accused is under preventive detention7 his case shall be raffled and its records transmitted to the %udge to whom the case was raffled within three >&? da*s from the filing of the information or complaint. 4he accused shall be arraigned within ten >!D? da*s from the date of the raffle. 4he pre-trial conference of his case shall be held within ten >!D? da*s after arraignment. c? 4he private offended part* shall be re,uired to appear at the arraignment for purposes of plea-bargaining7 determination of civil liabilit*7 and other matters re,uiring his presence. :n case of failure of the offended part* to appear despite due notice7 the court ma* allow the accused to enter a plea of guilt* to a lesser offense which is necessaril* included in the offense charged with the conformit* of the trial prosecutor alone. d? 4he arraignment shall be held within thirt* >&D? da*s from the date the court ac,uires %urisdiction over the person of the accused. 4he time of the pendenc* of a motion to ,uash or for a bill of particulars or other causes %ustif*ing suspension of the arraignment shall be e1cluded in computing the period. W>EN S>O(LD ,LEA O) NOT +(ILT' BE ENTERED a? 4he accused so pleaded9 b? <hen he refuses to plead9 c? <here in admitting the act charged7 he sets up matters of defense or with a lawful %ustification9 d? <hen he enters a conditional plea of guilt9 e? <here7 after a plea of guilt7 he introduces evidence of self-defense or other e1culpator* circumstances 9 and f? <hen the plea is indefinite or ambiguous. W>EN MA' AN A//(SED ENTER A ,LEA O) +(ILT' TO A LESSER O))ENSE A4 ARRA:8#$2#47 the accused7 with the consent of the offended part* and the prosecutor7 ma* be allowed b* the trial court to plead guilt* to a lesser offense which is necessaril* included in the offense charged. A542R ARRA:8#$2#4 BB4 B253R2 4R:AL7 the accused ma* still be allowed to plead guilt* to said lesser offense after withdrawing his plea of

not guilt*. #o amendment of the complaint or information is necessar*. :t has been held that the accused can still plead guilt* to a lesser offense after the prosecution has rested. :f accused entered a plea to a lesser offense without the consent of the offended part* and the prosecutor and he was convicted7 his subse,uent conviction in the crime charged would not place him in double %eopard*. A//(SED ,LEAD +(ILT' TO /A,ITAL O))ENSE? W>AT T>E /O(RT S>O(LD DO 4he court should accomplish three >&? things9 !? :t should conduct searching in,uir* into the voluntariness and full comprehension of the conse,uences of the plea9 "? :t should re,uire the prosecution to prove the guilt of the accused and the precise degree of culpabilit*9 and &? :t should in,uire whether or not the accused wishes to present evidence on his behalf and allow him if he so desires. SEAR/>IN+ INA(IR' Searching ,uestion means more than informing cursoril* the accused that he faces a %ail term. :t also includes the e1act length* of imprisonment under the law and the certaint* that he will serve at the national penitentiar* or a penal colon*. :t is intended to undermine the degree of culpabilit* of the accused in order that the court ma* be guided in determining the proper penalt*. IM,ROVIDENT ,LEA :t is a plea without information as to all the circumstances affecting it9 based upon a mistaken assumption or misleading information or advise. Conviction based on an improvident plea of guilt* ma* set aside onl* when such plea is the sole basis of the %udgment. At an* time before the %udgment of conviction becomes final7 the court ma* permit the withdrawal of an improvident plea of guilt*7 to be substituted b* a plea of not guilt*7 even after %udgment has been promulgated but before the same becomes final. A plea of not guilt* can likewise be withdrawn so that the accused ma* instead plead guilt*

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to the same offense7 but for obvious reasons7 this must be done before promulgation of %udgment. <hen the accused pleads guilt* but presents e1culpator* evidence7 his plea shall be deemed withdrawn and a plea of not guilt* shall be entered for him. +RO(NDS )OR S(S,ENSION O) ARRAI+NMENT Bpon motion b* the proper part*7 the arraignment shall be suspended in the following casesE !? 4he accused appears to be suffering from an unsound mental condition which effectivel* renders him unable to full* understand the charge against him and to plead intelligentl* thereto. :n such case7 the court shall order his mental e1amination and7 if necessar*7 his confinement for such purpose. "? 4here e1ists a pre%udicial ,uestion9 and &? A petition for review of the resolution of the prosecutor is pending at either the D3/ or the 3ffice of the resident9 provided that the period of suspension shall not e1ceed si1t* >)D? da*s counted from the filing of the petition with the reviewing office. MOTION TO A(AS> ;R(LE 115= A motion to ,uash is a h*pothetical admission of the facts alleged in the information7 hence the court in resolving the motion cannot consider facts contrar* to those alleged in the information or which do not appear on the face of the information7 e1cept those admitted b* the prosecution. 4he motion to ,uash must be filed before the arraignment. 4hereafter7 no motion to ,uash can be entertained b* the court7 the onl* e1ceptions being those in Sec. 9 which adopts the omnibus motion rule7 sub%ect to said e1ceptions. Sec. 3 has been amended to separatel* refer to lack to %urisdiction over the offense7 not over the person of the accused since7 b* filing a motion to ,uash on other grounds7 the accused has submitted himself to the %urisdiction of the court. MOTION TO A(AS> Rule !!+ At an* time before accused enters plea

+RO(NDS !? 4hat the facts charged do not constitute an offense9 "? 4hat the court tr*ing the case has no %urisdiction over the offense charged9 &? 4hat the court tr*ing the case has no %urisdiction over the person of the accused9 '? 4hat the officer who filed the information had no authorit* to do so9 (? 4hat it does not conform substantiall* to the prescribed form9 )? 4hat more than one offense is charged e1cept when a single punishment for various offenses is prescribed b* law9 +? 4hat the criminal action or liabilit* has been e1tinguished a. B* the death of the convict7 as to the personal penalties9 as to pecuniar* penalties7 liabilit* therefor is e1tinguished onl* when the death of the offender occurs before final %udgment. b. B* service of the sentence9 c. B* amnest*7 which completel* e1tinguishes the penalt* and all its effects9 d. B* absolute pardon9 e. B* prescription of the crime9 f. B* prescription of the penalt*9 g. B* the marriage of the offended woman in i. Seduction ii. abduction or iii. acts of lasciviousness (Art. 388 *PC) -? 4hat it contains averments which7 if true7 would constitute a legal e1cuse or %ustification9 and .? 4hat the accused has been previousl* convicted or ac,uitted of the offense charged7 or the case against him was dismissed or otherwise terminated without his e1press consent. 8rounds that are not waived even if not allegedE a? 5ailure to charge an offense9 b? Lack of %urisdiction9 c? 21tinction of criminal action or liabilit*9 d? Double %eopard*.

=hen fi e'

DEM(RER TO EVIDEN/E Section "&7 Rule !!. After the prosecution rests its case

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Groun's

Effect 3r"nte'

if

Effect 'enie'

if

a? 4hat the facts charged do not constitute an offense9 b? 4hat the court tr*ing the case has no %urisdiction over the offense charged9 c? 4hat the court tr*ing the case has no %urisdiction over the person of the accused9 d? 4hat the officer who filed the information had no authorit* to do so9 e? 4hat it does not conform substantiall* to the prescribed form9 f? 4hat more than one offense is charged e1cept when a single punishment for various offenses is prescribed b* law9 g? 4hat the criminal action or liabilit* has been e1tinguished9 h? 4hat it contains averments which7 if true7 would constitute a legal e1cuse or %ustification9 and i? 4hat the accused has been previousl* convicted or ac,uitted of the offense charged7 or the case against him was dismissed or otherwise terminated without his e1press consent. :f the motion to ,uash is sustained7 the court ma* order that another complaint or information be filed e1cept as provided in section ; of this rule. :f the order is made7 the accused7 if in custod*7 shall not be discharged unless admitted to bail. :f no order is made or if having been made7 no new information is filed within the time specified in the order or within such further time as the court ma* allow for good cause7 the accused7 if in custod*7 shall be discharged unless he is also in custod* of another charge. 4he remed* of prosecution is to amend the information to correct the defects thereof7 e1cept on the grounds of (3) "n' (&); of the prosecution ma* appeal the ,uashal of information or complaint 4he usual course to take is for the accused to proceed with trial7 and in case of conviction7 to appeal therefrom and assign as error the denial of the motion to ,uash7

:nsufficienc* of evidence

:f leave of court is granted7 the accused shall file the demurrer to evidence within a non-e1tendible period of ten >!D? da*s from notice. 4he prosecution ma* oppose the demurrer to evidence within !D da*s from receipt of the motion.

*e$e'ies if 'enie'

4he order den*ing the motion to ,uash is interlocutor* and therefore not appealable7 nor can it be the sub%ect of a petition for certiorari.

An accused who files a demurrer to evidence with leave of court does not lose the right to present evidence in the event his motion is denied. 3n the other hand7 if he files the demurrer without leave of court and the same is denied7 he loses the right to present evidence7 in which event the case will be deemed submitted for decision. 4he order den*ing the motion for leave of court to file demurrer to evidence or to demur itself shall not be reviewable b* appeal or

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certiorari before %udgment. A special civil action ma* lie against an order of denial of a motion to ,uash7 as an e1ception to the general rule7 in an* of the following instancesE a? <here there is necessit* to afford protection to the constitutional rights of the accused9 b? <hen necessar* for the orderl* administration of %ustice or to avoid oppression or multiplicit* of actions9 c? <here there is pre%udicial ,uestion which is su% &u'ice; d? <hen the acts of the officer are without or in e1cess of authorit*9 e? <here the prosecution is under an invalid law7 ordinance or regulation9 f? <hen double %eopard* is clearl* apparent9 g? <here the court has no %urisdiction over the offense9 h? <here it is a case of persecution rather than prosecution9 i? <here the charges are manifestl* false and motivated b* the lust for vengeance9 %? <hen there is clearl* no prima facie case against the accused9 and k? 4o avoid multiplicit* of actions. E))E/TS O) S(STAININ+ T>E MOTION TO A(AS> :f the motion to ,uash is sustained7 the court ma* order that another complaint or information be filed e1cept as provided in section ; of this ru e. a? :f the order is made7 the accused7 if in custod*7 shall not be discharged unless admitted to bail. b? :f no order is made or if having been made7 no new information is filed within the time specified in the order or within such further time as the court ma* allow for good cause7 the accused7 if in custod*7 shall be discharged unless he is also in custod* of another charge. E*/E,TION TO T>E R(LE T>AT S(STAININ+ T>E MOTION IS NOT A BAR TO ANOT>ER ,ROSE/(TION e1tinguished and that the accused has been previousl* convicted or in %eopard* of being convicted7 or ac,uitted of the offense charged. "? An order den*ing a motion to ,uash is interlocutor* and not appealable and generall*7 such denial cannot be controlled b* certiorari9 and the denial of a motion to ,uash grounded on double %eopard* is not controllable b* mandamus DO(BLE .EO,ARD' #o person shall be twice put in %eopard* of punishment for the same offense. :f an act is punished b* a law and an ordinance7 conviction or ac,uittal under either shall constitute a bar to another prosecution for the same act (Sec. 21, Art. III, Constitution). T! r a? b? c? d? e? E%ir m nts o: #o%9$ @ o-ar#y ar C ;alid indictment9 Competent court9 ;alid arraignment9 ;alid plea entered9 Case is dismissed or terminated without the e1press consent of the accused.

<hen an accused has been convicted or ac,uitted7 or the case against him dismissed or otherwise terminated <:403B4 0:S 2R R2SS C3#S2#4 b* a court of competent %urisdiction7 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 charge7 the conviction or ac,uittal of the accused or the dismissal of the case shall be a bar to another prosecution for the offense charged7 or for an* attempt to commit the same or frustration thereof7 or for an* offense which necessaril* includes or is necessaril* included in the offense charged in the former complaint or information. 0owever7 the conviction of the accused shall not be a bar to another prosecution for an offense which necessaril* includes the offense charged in the former complaint or information under an* of the following instancesE !? the graver offense developed due to supervening facts arising from the same act or omission constituting the former charge9 "? the facts constituting the graver charge became known or were discovered onl*

!? An order sustaining the motion to ,uash is


not a bar to another prosecution for the same offense unless the motion was based on the grounds specified in Sec. 3(3) "n' (i) J that the criminal action or liabilit* has been

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after a plea was entered in the former complaint or information9 or &? the plea of guilt* to the lesser offense was made without the consent of the prosecutor and of the offended part* e1cept as provided in section !>f? of Rule !!). ,ROVISIONAL DISMISSAL

W>AT T>E /O(RT S>O(LD DO W>EN ,ROSE/(TION AND O))ENDED ,ART' A+REE TO T>E ,LEA O))ERED B' T>E A//(SED 4he agreements shall be approved b* the court. rovided that the agreement on the plea of the accused should be to a lesser offense necessaril* included in the offense charged. ,RE<TRIAL A+REEMENT All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed b* the accused and counsel9 otherwise7 the* cannot be used against the accused. NON<A,,EARAN/E D(RIN+ ,RE<TRIAL :f the counsel for the accused or the prosecutor does not appear at the pre-trial conference and does not offer an acceptable e1cuse for his lack of cooperation7 the court ma* impose proper sanctions or penalties. ,RE<TRIAL ORDER After the pre-trial conference7 the court shall issue an order reciting the actions taken7 the facts stipulated7 and evidence marked. Such order shall bind the parties7 limit the trial to matters not disposed of7 and control the course of the action during the trial7 unless modified b* the court to prevent manifest in%ustice. RE)ERRAL O) SOME /ASES )OR /O(RT ANNE*ED AND MEDIATION AND .(DI/IAL DIS,(TE RESOL(TION ;AM 11<1<4<S/ ,>IL.A= /ON/E,T O) /O(RT DIVERSION O) ,ENDIN+ /ASES 4he diversion of pending court cases both to Court-Anne1ed $ediation >CA$? and to /udicial Dispute Resolution >/DR? is plainl* intended to put an end to pending litigation through a compromise agreement of the parties and thereb* help solve the ever-pressing problem of court docket congestion. Cases that ma* be referredE !? All civil cases and the civil liabilit* of criminal cases covered b* the Rule on Summar* rocedure7 including the civil liabilit* for violation of B. . ""7 e1cept

!? A case shall not be provisionall* dismissed


e1cept with the e1press consent of the accused and with notice to the offended part*. "? 4he provisional dismissal of offenses punishable b* imprisonment not e1ceeding si1 >)? *ears or a fine of an* amount7 or both7 shall become permanent one >!? *ear after issuance of the order without the case having been revived. &? <ith respect to offenses punishable b* imprisonment of more than si1 >)? *ears7 their provisional dismissal shall become permanent two >"? *ears after issuance of the order without the case having been revived. '? 4he r"ison '7etre for the re,uirement of the e1press consent of the accused to a provisional dismissal of a criminal case is to bar him from subse,uentl* asserting that the revival of the criminal case will place him in double %eopard* for the same offense or for an offense necessaril* included therein. ,RE<TRIAL ;R(LE 116= 4he court shall7 after arraignment and within thirt* >&D? da*s from the date the court ac,uires %urisdiction over the person of the accused7 unless a shorter period is7 order a pre-trial conference. :ts main ob%ective is to achieve an e1peditious resolution of the case. MATTERS TO BE /ONSIDERED D(RIN+ ,RE TRIAL !? plea bargaining9 "? stipulation of facts9 &? marking for identification of evidence of the parties9 '? waiver of ob%ections to admissibilit* of evidence9 (? modification of the order of trial if the accused admits the charge but interposes a lawful defense9 and )? such matters as will promote a fair and e1peditious trial of the criminal and civil aspects of the

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those which b* law ma* not be compromised9 "? Special proceedings for the settlement of estates9 &? All civil and criminal cases filed with a certificate to file action issued b* the unong Baranga* or the angkat ng 4agapagkasundo under the Revised =atarungang ambaranga* Law9 '? 4he civil aspect of Auasi-3ffenses under 4itle !' of the Revised enal Code9 (? 4he civil aspect of less grave felonies punishable b* correctional penalties not e1ceeding ) *ears imprisonment7 where the offended part* is a private person9 )? 4he civil aspect of estafa7 theft and libel9 +? All civil cases and probate proceedings7 testate and intestate7 brought on appeal from the e1clusive and original %urisdiction granted to the first level courts9 -? All cases of forcible entr* and unlawful detainer brought on appeal from the e1clusive and original %urisdiction granted to the first level courts9 .? All civil cases involving title to or possession of real propert* or an interest therein brought on appeal from the e1clusive and original %urisdiction granted to the first level courts9 and !D? All habeas corpus cases decided b* the first level courts in the absence of the Regional 4rial Court %udge7 that are brought up on appeal from the special %urisdiction granted to the first level courts. 4he following CAS2S S0ALL #34 B2 R252RR2D 43 CA$ A#D /DRE !? Civil cases which b* law cannot be compromised9 "? 3ther criminal cases not covered under paragraphs & to ) above9 &? 0abeas Corpus petitions9 '? All cases under Republic Act #o. .")" >;iolence against <omen and Children?9 and (? Cases with pending application for Restraining 3rders6 reliminar* :n%unctions. 0owever7 in cases covered under !7 ' and ( where the parties inform the court that the* have agreed to undergo mediation on some aspects thereof7 e.g.7 custod* of minor children7 separation of propert*7 or support !en'ente ite7 the court shall refer them to mediation.

,RO/ED(RE /udicial proceedings shall be divided into two stagesE !? 5rom the filing of a complaint to the conduct of CA$ and /DR during the pretrial stage7 and "? pre-trial proper to trial and %udgment. 4he %udge to whom the case has been originall* raffled7 who shall be called the /DR /udge7 shall preside over the first stage. 4he %udge7 who shall be called the trial %udge7 shall preside over the second stage. At the initial stage of the pre-trial conference7 the /DR %udge briefs the parties and counsels of the CA$ and /DR processes. 4hereafter7 he issues an 3rder of Referral of the case to CA$ and directs the parties and their counsels to proceed to the $CB bringing with them a cop* of the 3rder of Referral. 4he /DR %udge shall include in said 3rder7 or in another 3rder7 the pre-setting of the case for /DR not earlier than fort*-five >'(? da*s from the time the parties first personall* appear at the $CB so that /DR will be conducted immediatel* if the parties do not settle at CA$. All incidents or motions filed during the first stage shall be dealt with b* the /DR %udge. :f /DR is not conducted because of the failure of the parties to appear7 the /DR %udge ma* impose the appropriate sanctions and shall continue with the proceedings of the case. :f the parties do not settle their dispute at CA$7 the parties and their counsels shall appear at the preset date before the /DR %udge7 who will then conduct the /DR process as mediator7 neutral evaluator and6or conciliator in order to activel* assist and facilitate negotiations among the parties for them to settle their dispute. As mediator and conciliator7 the %udge facilitates the settlement discussions between the parties and tries to reconcile their differences. As a neutral evaluator7 the %udge assesses the relative strengths and weaknesses of each part*Ts case and makes a non-binding and impartial evaluation of the chances of each part*Ts success in the case. 3n the basis of such neutral evaluation7 the %udge persuades the parties to a fair and mutuall* acceptable settlement of their dispute. 4he /DR %udge shall not preside over the trial of the case when the parties did not settle their dispute at /DR.

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/RIMINAL /ASES :f settlement is reached on the civil aspect of the criminal case7 the parties7 assisted b* their respective counsels7 shall draft the compromise agreement which shall be submitted to the court for appropriate action. Action on the criminal aspect of the case will be determined b* the ublic rosecutor7 sub%ect to the appropriate action of the court. :f settlement is not reached b* the parties on the civil aspect of the criminal case7 the /DR %udge shall proceed to conduct the trial on the merits of the case should the parties file a %oint written motion for him to do so7 despite confidential information that ma* have been divulged during the /DR proceedings. 3therwise7 the /DR /udge shall turn over the case to a new %udge b* reraffle in multiple sala courts or to the originating court in single sala courts7 for the conduct of pretrial proper and trial. ,RE<TRIAL ,RO,ER <here no settlement or onl* a partial settlement was reached7 and there being no %oint written motion submitted b* the parties7 as stated in the last preceding paragraphs7 the /DR %udge shall turn over the case to the trial %udge7 determined b* re-raffle in multiple sala courts or to the originating court in single sala courts7 as the case ma* be7 to conduct pre-trial proper7 as mandated b* *u es 1< "n' 11< of the *u es of Court. TRIAL ;R(LE117= Continuous trial is one where the courts are called upon to conduct the trial with utmost dispatch7 with %udicial e1ercise of the courtCs power to control the trial to avoid dela* and for each part* to complete the presentation of evidence with the trial dates assigned to him. INSTAN/ES W>EN ,RESEN/E O) A//(SED IS REA(IRED B' LAW 4he onl* instances when the presence of the accused is re,uired b* law and when the law ma* forfeit the bond if he fails to appear areE !? 3n arraignment9 "? 3n promulgation of %udgment e1cept for light offenses9 &? 5or identification purposes9 '? <hen the court with due notice re,uires so.

REA(ISITE BE)ORE TRIAL /AN BE S(S,ENDED ON A//O(NT O) ABSEN/E O) WITNESS 4o warrant postponement due to absence of a witness7 it must appearE a? 4hat the witness is reall* material and appears to the court to be so9 b? 4hat the part* who applies for postponement has not been guilt* of neglect9 c? 4hat the witness can be had at the time to which the trial has been deferred9 and d? 4hat no similar evidence could be obtained. 4he non-appearance of the prosecution at the trial7 despite due notice7 %ustifies a provisional dismissal or an absolute dismissal7 depending on the circumstances. An* period of dela* resulting from the absence or unavailabilit* of an essential witness shall be e1cluded in computing the time within which trial must commence. TRIAL IN ABSENTIA 4he Constitution permits trial in absentia of an accused after his arraignment who un%ustifiabl* fails to appear during the trial notwithstanding due notice. 4he purpose of trial in absentia is to speed up the disposition of criminal cases. 4he R2AB:S:42S 35 4R:AL :# ABS2#4:A areE a? 4he accused has been arraigned9 b? 0e has been dul* notified of the trial9 and c? 0is failure to appear is %ustified. 4he waiver of the accused of appearance or trial in absentia does not mean that the prosecution is thereb* deprived of its right to re,uire the presence of the accused for purposes of identification b* the witnesses which is vital for conviction of the accused7 e1cept where he un,ualifiedl* admits in open court after his arraignment that he is the person named as defendant in the case on trial. Such waiver does not mean a release of the accused from his obligation under the bond to appear in court whenever re,uired. 0e can still be subpoenaed to appear for identification purposes7 without violating his right against self-incrimination as he will not take the stand to testif* but merel* to be present in court7 where the prosecution witness ma*7 while in the witness stand7 point to him as the accused.

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REMED' W>EN A//(SED IS NOT BRO(+>T TO TRIAL WIT>IN T>E ,RES/RIBED ,ERIOD :f the accused is not brought to trial within the time limit7 the information ma* be dismissed on motion of the accused on the ground of denial of his right to speed* trial. 4he dismissal shall be sub%ect to the rules on double %eopard*. 5ailure of the accused to move for dismissal prior to trial shall constitute a waiver of the right to dismiss under this section. REA(ISITES )OR DIS/>AR+E O) A//(SED TO BE/OME A STATE WITNESS <hen two or more persons are %ointl* charged with the commission of an* offense7 upon motion of the prosecution before resting its case7 the court ma* direct one or more of the accused to be discharged with their consent so that the* ma* be witnesses for the state when7 after re,uiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge7 the court is satisfied thatE !? 4here is absolute necessit* for the testimon* of the accused whose discharge is re,uested9 "? 4here is no other direct evidence available for the proper prosecution of the offense committed7 e1cept the testimon* of said accused9 &? 4he testimon* of said accused can be substantiall* corroborated in its material points9 '? Said accused does not appear to be the most guilt*9 and (? Said accused has not at an* time been convicted of an* offense involving moral turpitude. 2vidence adduced in support of the discharge shall automaticall* form part of the trial. :f the court denies the motion for discharge of the accused as state witness7 his sworn statement shall be inadmissible in evidence. E))E/TS O) DIS/>AR+E O) A//(SED AS STATE WITNESS 4he order shall amount to an ac,uittal of the discharged accused and shall be a bar to future prosecution for the same offense7 unlessE a? 4he accused fails or refuses to testif* against his co-accused in accordance with

his sworn statement constituting the basis for his discharge. b? :f he was granted immunit* and fails to keep his part of the agreement7 his confession of his participation in the commission of the offense is admissible in evidence against him. 4he court shall order the discharge and e1clusion of the said accused from the information. Admission into such rogram shall entitle such State <itness to immunit* from criminal prosecution for the offense or offenses in which his testimon* will be given or used. DEM(RRER TO EVIDEN/E After the prosecution rests its case7 the court ma* dismiss the action on the ground of insufficienc* of evidence >!? on its own initiative after giving the prosecution the opportunit* to be heard or >"? upon demurrer to evidence filed b* the accused with or without leave of court. :f the court denies the demurrer to evidence filed with leave of court7 the accused ma* adduce evidence in his defense. <hen the demurrer to evidence is filed without leave of court7 the accused waives the right to present evidence and submits the case for %udgment on the basis of the evidence for the prosecution. 4he motion for leave of court to file demurrer to evidence shall specificall* state its grounds and shall be filed within a non-e1tendible period of five >(? da*s after the prosecution rests its case. 4he prosecution ma* oppose the motion within a non-e1tendible period of five >(? da*s from its receipt. :f leave of court is granted7 the accused shall file the demurrer to evidence within a none1tendible period of ten >!D? da*s from notice. 4he prosecution ma* oppose the demurrer to evidence within a similar period from its receipt. 4he order den*ing the motion for leave of court to file demurrer to evidence or the demurrer itself shall not be reviewable b* appeal or b* certiorari before %udgment. .(D+MENT ;R(LE 120= /udgment means the ad%udication b* the court that the accused is guilt* or is not guilt* of the offense charged7 and the imposition of the

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proper penalt* and civil liabilit* provided for b* law on the accused. $emorandum decision is one in which the appellate court ma* adopt b* reference7 the findings of facts and conclusions of law contained in the decision appealed from. REA(ISITES O) A .(D+MENT :t must be written in the official language7 personall* and directl* prepared b* the %udge and signed b* him and shall contain clearl* and distinctl* a statement of the facts and the law upon which it is based. /ONTENTS O) .(D+MENT :f the %udgment is of conviction7 it shall stateE !? the legal ,ualification of the offense constituted b* the acts committed b* the accused and the aggravating or mitigating circumstances which attended its commission9 "? the participation of the accused in the offense7 whether as principal7 accomplice7 or accessor* after the fact9 &? the penalt* imposed upon the accused9 and '? the civil liabilit* or damages caused b* his wrongful act or omission to be recovered from the accused b* the offended part*7 if there is an*7 unless the enforcement of the civil liabilit* b* a separate civil action has been reserved or waived. :n case the %udgment is of ac,uittal7 it shall state whether the evidence of the prosecution absolutel* failed to prove the guilt of the accused or merel* failed to prove his guilt be*ond reasonable doubt. :n either case7 the %udgment shall determine if the act or omission from which the civil liabilit* might arise did not e1ist. ,ROM(L+ATION O) .(D+MENTH INSTAN/ES O) ,ROM(L+ATION O) .(D+MENT IN ABSENTIA 4he %udgment is promulgated b* reading it in the presence of the accused and an* %udge of the court in which it was rendered. 0owever7 if the conviction is for a light offense7 the %udgment ma* be pronounced in the presence of his counsel or representative. <hen the %udge is absent or outside the province or cit*7 the %udgment ma* be promulgated b* the clerk of court.

:f the accused is confined or detained in another province or cit*7 the %udgment ma* be promulgated b* the e1ecutive %udge of the Regional 4rial Court having %urisdiction over the place of confinement or detention upon re,uest of the court which rendered the %udgment. 4he court promulgating the %udgment shall have authorit* to accept the notice of appeal and to approve the bail bond pending appeal9 provided7 that if the decision of the trial court convicting the accused changed the nature of the offense from non-bailable to bailable7 the application for bail can onl* be filed and resolved b* the appellate court. 4he proper clerk of court shall give notice to the accused personall* or through his bondsman or warden and counsel7 re,uiring him to be present at the promulgation of the decision. :f the accused was tried in absentia because he %umped bail or escaped from prison7 the notice to him shall be served at his last known address. :n case the accused fails to appear at the scheduled date of promulgation of %udgment despite notice7 the promulgation shall be made b* recording the %udgment in the criminal docket and serving him a cop* thereof at his last known address or thru his counsel. :f the %udgment is for conviction and the failure of the accused to appear was without %ustifiable cause7 he shall lose the remedies available in these rules against the %udgment and the court shall order his arrest. <ithin fifteen >!(? da*s from promulgation of %udgment7 however7 the accused ma* surrender and file a motion for leave of court to avail of these remedies. 0e shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a %ustifiable cause7 he shall be allowed to avail of said remedies within fifteen >!(? da*s from notice. W>EN DOES .(D+MENT BE/OME )INAL ;)O(R INSTAN/ES= a? After the lapse of the period for perfecting an appeal9 b? <hen the sentence has been partiall* or totall* satisfied or served9 c? <hen the accused has waived in writing his right to appeal9 or d? 0as applied for probation. MNT OR MR IN /RIMINAL /ASES MNT OR MR IN /IVIL /ASES

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2ither on motion of accused7 or the court motu proprio with consent of the accused Groun's for ,-1 J errors of law or irregularities committed during the trial7 or newl* discovered evidence Groun' for ,* J error of law or fact

$ust be upon motion of a part*7 canCt be motu proprio Groun's for ,-1 J 5A$27 or newl* discovered evidence

c? 4he evidence is material7 not merel* cumulative7 corroborative or impeaching9 d? :t must go to the merits as it would produce a different result if admitted. E))E/TS O) +RANTIN+ A NEW TRIAL OR RE/ONSIDERATION

a? <hen a new trial is granted on the ground of


errors of law or irregularities committed during the trial7 all the proceedings and evidence affected thereb* shall be set aside and taken anew. 4he court ma*7 in the interest of %ustice7 allow the introduction of additional evidence. b? <hen a new trial is granted on the ground of newl*-discovered evidence7 the evidence alread* adduced shall stand and the newl*discovered and such other evidence as the court ma*7 in the interest of %ustice7 allow to be introduced shall be taken and considered together with the evidence alread* in the record. c? :# ALL CAS2S7 when the court grants new trial or reconsideration7 the original %udgment shall be set aside or vacated and a new %udgment rendered accordingl*. A,,LI/ATION O) NE',ES DO/TRINE IN /RIMINAL /ASES 4his rule was adopted 43 S4A#DARD:W2 402 A 2AL 2R:3DS provided in the Rules to afford fair opportunit* to review the case and7 in the process7 minimi@e errors of %udgment. F%6ious +, the ne) 15 '"+ !erio' $"+ %e "6"i e' of on + if either $otion is fi e' "n' )"s 'enie'; other)ise, the 'ecision %eco$es fin" "n' e#ecutor+ "fter the "!se of the ori3in" "!!e" !erio' !ro6i'e' in *u e 81 :f the motion is denied7 the movants has a fresh period of !( da*s from receipt or notice of the order den*ing or dismissing the motion for reconsideration within which to file a notice to appeal. 4his fresh period rule applies onl* to Rule '! governing appeals from the R4C but also to Rule 'D governing appeals from $4C to R4C7 Rule '" on petitions for review from the R4C to the CA7 Rule '& on appeal from ,uasi-%udicial agencies to the CA7 and Rule '( governing appeals b* certiorari to the SC. #e*pes ruling shall not be applied where no motion for new trial or motion for reconsideration

5iled an* time before %udgment of conviction becomes final

Groun's for ,* J 21cessive damages7 insufficient evidence7 or decision is contrar* to law 5iled within the period for taking an appeal Should include all the grounds then available and those not so included shall be deemed waived. 4here ma* be partial grant

<hen granted7 the original %udgment is alwa*s set aside or vacated and a new %udgment rendered

+RO(NDS )OR NEW TRIAL

a? 4hat errors of law or irregularities pre%udicial


to the substantial rights of the accused have been committed during the trial9 b? 4hat new and material evidence has been discovered which the accused could not with reasonable diligence have discovered and produced at the trial and which if introduced and admitted would probabl* change the %udgment. +RO(NDS )OR RE/ONSIDERATION 4he court shall grant reconsideration on the ground of errors of law or fact in the %udgment7 which re,uires no further proceedings. REA(ISITES BE)ORE A NEW TRIAL MA' BE +RANTED ON +RO(ND O) NEWL' DIS/OVERED EVIDEN/E a? 4he evidence was discovered after trial9 b? 4he evidence could not have been discovered and produced at the trial even with e1ercise of reasonable diligence9

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has been filed in which case the !(-da* period shall run from notice of the %udgment. 4he fresh period rule does not refer to the period within which to appeal from the order den*ing the motion for new trial because the order is not appealable. :n the case of 2u'ith Lu 6s. 2u'3e S"$son, De%. 9, 2.11, the SC held that the #e*pes doctrine is applicable in criminal cases. A,,EAL ;R(LE 122= An appeal opens the whole case for review and this includes the review of the penalt*7 indemnit* and the damages involved. E))E/T O) AN A,,EAL Bpon perfection of the appeal7 the e1ecution of the %udgment or order appealed from is sta*ed as to the appealing part*. 4he civil appeal of the offended part* does not affect the criminal aspect of the %udgment or order appealed from. 4he trial court loses %urisdiction over the7 e1ceptE !? 4o issue orders for the protection and preservation of the rights of the parties which do not involve an* matter litigated b* the appeal9 "? 4o approve compromises offered b* the parties prior to the transmission of the records on appeal to the appellate court. W>ERE TO A,,EAL a? 4o the Regional 4rial Court7 in cases decided b* the $4Cs9 b? 4o the Court of Appeals or to the Supreme Court in the proper cases provided b* law7 in cases decided b* the R4C9 and c? 4o the Supreme Court7 in cases decided b* the Court of Appeals. >OW A,,EAL TA8EN

%urisdiction shall be b* 24:4:3# 53R R2;:2< under Rule '". c? 4he appeal to the SC in cases where the penalt* imposed b* the R4C is reclusion perpetua7 or life imprisonment7 or where a lesser penalt* is imposed but for offenses committed on the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for which the penalt* of death7 reclusion perpetua7 or life imprisonment is imposed7 shall be b* filing a #34:C2 35 A 2AL. d? #o notice of appeal is necessar* in cases where the death penalt* is imposed b* the R4C. 4he same shall be automaticall* reviewed b* the SC. 21cept as provided in the last paragraph of section 13, *u e 128, all other appeals to the Supreme Court shall be b* 24:4:3# 53R R2;:2< 3# C2R4:3RAR: under Rule '(. E))E/T O) A,,EAL B' AN' O) SEVERAL A//(SED a? An appeal taken b* one or more of several accused shall not affect those who did not appeal7 e1cept insofar as the %udgment of the appellate court is favorable and applicable to the latter. b? 4he appeal of the offended part* from the civil aspect shall not affect the criminal aspect of the %udgment or order appealed from. +RO(NDS )OR DISMISSAL O) A,,EAL a? 5ailure on the part of the appellant to file brief within the reglementar* period7 e1cept when he is repsented b* counsel de officio9 b? 2scape f the appellant from prison or confinement9 c? <hen the appellant %umps bail9 d? 5light of the appellant for a foreign countr* during the pendenc* of the appeal9 e? atentl* without merit9 f? rosecuted manifestl* for dela*9 or g? 4he ,uestions raised therein are too unsubstantial to re,uire consideration. SEAR/> AND SEIG(RE ;R(LE 124= NAT(RE O) SEAR/> WARRANT 4he constitutional right against unreasonable search and sei@ure refers to the immunit* of oneCs person7 whether a citi@en or alien7 from

a? 4he appeal to the R4C7 or to the CA in cases


decided b* the R4C in the e1ercise of its original %urisdiction7 shall be taken b* filing a #34:C2 35 A 2AL with the court which rendered the %udgment or final order appealed from and b* serving a cop* thereof upon the adverse part*. b? 4he appeal to the CA in cases decided b* the R4C in the e1ercise of its appellate

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interference b* government7 included in whish is his residence7 his papers and other possession. 4he overriding function of the constitutional guarantee is to protect personal privac* and human dignit* against unwarranted intrusion b* the State. 4he right of the people to be secure in their persons7 houses7 papers7 and effects against SEAR/> WARRANT ;R(LE 124= A search warrant is an order in writing issued in the name of the eople of the hilippines7 signed b* a %udge and directed to a peace officer7 commanding him to search for personal propert* described therein and bring it before the court (Sec. 1, *u e 12;). *e(uisites0 A search warrant shall not issue e1cept upon probable cause in connection with one specific offense to be determined personall* b* the %udge after e1amination under oath or affirmation of the complainant and the witness he ma* produce7 and particularl* describing the place to be searched and the things to be sei@ed which ma* be an*where in the hilippines (Sec. 8, *u e 12;).

unreasonable searches and sei@ures of whatever nature and for an* purpose shall be inviolable7 and no search warrant or warrant of arrest shall issue e1cept upon probable cause to be determined personall* b* the %udge after e1amination under oath or affirmation of the complainant and the witnesses he ma* produce7 and particularl* describing the place to be searched and the persons or things to be sei@ed (Sec. 2, Art. III, Constitution). WARRANT O) ARREST ;R(LE 111= Arrest is the taking of a person into custod* in order that he ma* be bound to answer for the commission of an offense (Sec. 1, *u e 113).

Se"rch or seiHure )ithout )"rr"nt, )hen ")fu 0 !? Consented search9 "? As an incident to a lawful arrest9 &? Searches of vessels and aircrafts for violation of immigration7 customs and drug laws9 '? Searches of moving vehicles9 (? Searches of automobiles at borders or constructive borders9 )? <here the prohibited articles are in plain view9 +? Searches of buildings and premises to enforce fire7 sanitar* and building regulations9 -? MStop and friskN operations9 .? 21igent and emergenc* circumstances (in ti$es of )"r "n' )ithin the "re" of $i it"r+ o!er"tion) A,,LI/ATION )OR SEAR/> WARRANT? W>ERE )ILED An application for search warrant shall be filed with the followingE

*e(uisites for "rrest )"rr"nt issue' %+ *1C &u'3e un'er Sec. 5, *u e 1120 a? <ithin !D da*s from the filing of the complaint or information b? 4he %udge shall personall* evaluate the resolution of the prosecutor and its supporting evidence. c? :f he finds probable cause7 he shall issue a warrant of arrest d? :n case of doubt on the e1istence of probable cause e? 4he %udge ma* order the prosecutor to present additional evidence within ( da*s from notice9 and f? 4he issue must be resolved b* the court within &D da*s from the filing of the complaint of information Arrest )ithout )"rr"nt, )hen ")fu 0 a? <hen7 in his presence7 the person to be arrested has committed7 is actuall* committing7 or is attempting to commit an offense9 b? <hen an offense has %ust 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 it9 and c? <hen the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final %udgment or is temporaril* confined while his case is pending7 or has escaped while being transferred from one confinement to another (Sec. 5, *u e 113). a? An* court within whose territorial %urisdiction a crime was committed. b? 5or compelling reasons stated in the application7 an* court within the %udicial region where the crime was committed if

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the place of the commission of the crime is known7 or an* court within the %udicial region where the warrant shall be enforced. 0owever7 if the criminal action has alread* been filed7 the application shall onl* be made in the court where the criminal action is pending. ,ROBABLE /A(SE robable cause is defined as such facts and circumstances which could lead a reasonabl* discreet and prudent man to believe that an offense has been committed and that the ob%ects sought in connection with the offense are in the place sought to be searched. R E%isit s :or iss%ing s arc! "arrant J A search warrant shall not issue e1cept upon probable cause in connection with one specific offense to be determined personall* b* the %udge after e1amination under oath or affirmation of the complainant and the witness he ma* produce7 and particularl* describing the place to be searched and the things to be sei@ed which ma* be an*where in the hilippines. Iss%anc an# :orm o: s arc! "arrant J :f the %udge is satisfied of the e1istence of facts upon which the application is based or that there is probable cause to believe that the* e1ist7 he shall issue the warrant7 which must be substantiall* in the form prescribed b* these Rules. ,ERSONAL E*AMINATION B' .(D+E O) T>E A,,LI/ANT AND WITNESSES 4he %udge must7 before issuing the warrant7 personall* e1amine in the form of searching ,uestions and answers7 in writing and under oath7 the complainant and the witnesses he ma* produce on facts personall* known to them and attach to the record their sworn statements7 together with the affidavits submitted. ,ARTI/(LARIT' O) ,LA/E TO BE SEAR/>ED AND T>IN+S TO BE SEIGED 4he warrant must particularl* describe the place to be searched and the persons or things to be sei@ed. 4he rule is that a description of the place to be searched is sufficient if the officer with the warrant can7 with reasonable effort7 ascertain and identif* the place intended to be searched. <here there are several apartments in the place

to be searched7 a description of the specific place can be determined b* reference to the affidavits supporting the warrant that the apartment to be searched is the one occupied b* the accused. 4he searching part* cannot go from one apartment to the other as the warrant will then become a general warrant. ,ERSONAL ,RO,ERT' TO BE SEIGED A search warrant ma* be issued for the search and sei@ure of personal propert*E a? Sub%ect of the offense9 b? Stolen or embe@@led and other proceeds7 or fruits of the offense9 or c? Bsed or intended to be used as the means of committing an offense. :t is not necessar* that the propert* to be searched or sei@ed should be owned b* the person against whom the search is issued9 it is sufficient that the propert* is under his control or possession. E*/E,TIONS TO SEAR/> WARRANT REA(IREMENT 1& SEAR/> IN/IDENTAL TO LAW)(L ARREST A person lawfull* arrested ma* be searched for dangerous weapons or an*thing which ma* have been used or constitute proof in the commission of an offense without a search warrant. 4he law re,uires that there first be a lawful arrest before a search can be made. 4he process cannot be reversed. 4hus7 in a bu*-bust operation conducted to entrap a drug pusher7 the law enforcement agents ma* sei@e the marked mone* found on the person of the pusher immediatel* after the arrest even without arrest and search warrants. 4his is absolutel* limit a warrantless search of a person who is lawfull* arrested to his or her person at the time of and incident to his or her arrest and to dangerous weapons or an*thing which ma* be used as proof of the commission of the offense. Such warrantless search obviousl* cannot be made in an* other than the place of arrest. 2& /ONSENTED SEAR/> Rights ma* be waived7 unless the waiver is contrar* to law7 public order7 morals7 or good customs7 or pre%udicial to a third person with a right recogni@ed b* law.

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4o constitute a valid waiver of a constitutional right7 it must appearE a? that the right e1ists7 b? the person involved had knowledge either actual or constructive7 of the e1istence of such right7 and c? said person has an actual intention to relin,uish the right. As the constitutional guarantee is not dependent upon an* affirmative act of the citi@en7 the courts do not place the citi@en in the position of either contesting an officerCs authorit* b* force7 or waiving his constitutional rights7 but instead the* hold that a peaceful submission and silence of the accused in a search or sei@ure is not a consent or an invitation thereto7 but is merel* a demonstration of regard to the supremac* of the law. 1& SEAR/> O) MOVIN+ VE>I/LE :n carr*ing out warrantless searches of moving vehicles7 peace officers are limited to routine checks7 that is7 the vehicles are neither reall* searched nor their occupants sub%ected to ph*sical or bod* searches7 the e1amination of the vehicles being limited to visual inspection. <arrantless search for moving vehicle is %ustified on the ground that it is not practicable to secure a warrant because the vehicle can be ,uickl* moved out of the localit* or %urisdiction in which the warrant must be sought. 2& />E/8 ,OINTSH BOD' />E/8S IN AIR,ORT A warrantless search conducted at police or militar* checkpoints has been upheld for as long as the vehicle is neither searched nor its occupants sub%ected to bod* search7 and the inspection of the vehicle is merel* limited to visual search. Routine inspections are not regarded as violative of an individualCs right against unreasonable search. 4he search is limited to the following instancesE !? where the officer merel* draws aside the curtain of a vacant vehicle which is parked on the public fair grounds9 "? simpl* looks into a vehicle9 &? flashes a light therein without opening the carCs doors9 '? where the occupants are not sub%ected to a ph*sical or bod* search9

(? where the inspection of the vehicles is limited to a visual search or visual inspection9 and )? where the routine check is conducted in a fi1ed area. 3& ,LAIN VIEW SIT(ATION :t recogni@es that ob%ects inadvertentl* falling in plain view of an officer who has the right to be in the position to have that view7 are sub%ect to sei@ure without warrant. :t is usuall* applied where a police officer is not searching for evidence against the accused7 but nonetheless inadvertentl* comes across an incriminating ob%ect. :t is also been suggested that even if an ob%ect is observed in plain view7 the sei@ure of the sub%ect will not be %ustified where the incriminating nature of the ob%ect is not apparent9 it must be immediatel* apparent to the police that the items that the* observe ma* be evidence of a crime7 contraband or otherwise sub%ect to sei@ure. 4he elements of Mplain viewNsei@ure areE !? prior valid intrusion based on the valid warrantless arrest in which the police are legall* present in the pursuit of their official duties9 "? the evidence was inadvertentl* discovered b* the police who had the right to be where the* are9 &? the evidence must be immediatel* apparent9 and '? Mplain viewN %ustified mere sei@ure of evidence without further search. 4& STO, AND )RIS8 SIT(ATION A person who was carr*ing a bag and acting suspiciousl* could be searched b* police officers and the unlicensed firearm sei@ed inside the bag is admissible in evidence7 being an incident of a lawful arrest. A person roaming around in a place where drug addicts usuall* are found7 whose e*es were red and who was wobbling like a drunk7 could be legall* searched of his person and the illegal drug sei@ed from him is admissible in evidence against him. A stop and frisk serves a two-fold interestE a? the general interest of effective criminal protection and detection which underlie

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the recognition that a police officer ma*7 under appropriate circumstances and in an appropriate manner7 approach a person for purposes of investigating possible criminal behavior even without probable cause9 and b? the more pressing interest of safet* and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadl* weapon that could une1pectedl* and fatall* be used against him. 5& EN)OR/EMENT O) /(STOM LAWS 4he intention is to prevent smuggling and to secure the collection of the legal duties7 ta1es and other charges. Bnder the 4ariff and Customs Code7 Customs officers are authori@ed to make arrest7 search and sei@ure of an* vessel7 aircraft7 cargo7 articles7 animals or other movable propert* when the same is sub%ect to forfeiture or liable for an* fine under the customs and tariff laws7 rules and regulations and ma* at an* time enter7 pass through or search an* land or inclosure or an* warehouse7 store or other building without being a dwelling house. A dwelling house ma* be entered or searched onl* upon warrants issued b* %udge upon sworn application showing probable cause and particularl* describing the placed to be searched and person or things to be searched. 6& SEAR/>ES O) A(TOMOBILES AT BORDERS OR /ONSTR(/TIVE BORDERS 7& SEAR/>ES O) B(ILDIN+S AND ,REMISES TO EN)OR/E )IRE? SANITAR' AND B(ILDIN+ RE+(LATIONS 10& E*I+ENT AND EMER+EN/' /IR/(MSTAN/ES 11& IN TERMS O) WAR WIT>IN T>E AREA O) MILITAR' O,ERATION REMEDIES )ROM (NLAW)(L SEAR/> AND SEIG(RE A motion to ,uash a search warrant and6or to suppress evidence obtained thereb* ma* be filed in and acted upon onl* b* the court where the

action has been instituted. :f no criminal action has been instituted7 the motion ma* be filed in and resolved b* the court that issued search warrant. 0owever7 if such court failed to resolve the motion and a criminal case is subse,uentl* filed in another court7 the motion shall be resolved b* the latter court. Alternative remedies of the accused adversel* affected b* a search warrant are the followingE !? $otion to ,uash the search warrant with the issuing court9 or "? $otion suppress evidence with the court tr*ing the criminal case. 4he remedies are alternative7 not cumulative. :f the motion to ,uash is denied7 a motion to suppress cannot be availed of subse,uentl*. Replevin ma* also be proper if the ob%ects are legall* possessed. ,ROVISIONAL REMEDIES ;R(LE 125= NAT(RE 4he provisional remedies in civil actions7 insofar as the* are applicable7 ma* be availed of in connection with the civil action deemed instituted with the criminal action. An application for recover* of damages on the bond posted for purposes of said provisional remedies shall be made in the same action and7 generall*7 cannot be the sub%ect of a separate action. 4he provisional remedies are proper onl* where the civil action for the recover* of civil liabilit* e# 'e icto has not been e1pressl* waived or the right to institute such civil action separatel* is not reserved7 in those cases where such reservation ma* be made. 8INDS O) ,ROVISIONAL REMEDIES ATTA/>MENT <hen the civil action is properl* instituted in the criminal action as provided in Rule !!!7 the offended part* ma* have the propert* of the accused attached as securit* for the satisfaction of an* %udgment that ma* be recovered from the accused in the following casesE !? <hen the accused is about to abscond from the hilippines9 "? <hen the criminal action is based on a claim for mone* or propert* embe@@led or

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fraudulentl* misapplied or converted to the use of the accused who is a public officer7 officer of a corporation7 attorne*7 factor7 broker7 agent or clerk7 in the course of his emplo*ment as such7 or b* an* other person in a fiduciar* capacit*7 or for a willful violation of dut*9 &? <hen the accused has concealed7 removed7 or disposed of his propert*7 or is about to do so9 and '? <hen the accused resides outside the hilippines.

*u e 5: on preliminar* attachment applies on


the procedure to secure an attachment in the cases authori@ed under *u e 12:. At the commencement of the action or at an* time before entr* of %udgment7 a plaintiff or an* proper part* ma* have the propert* of the adverse part* attached as securit* for the satisfaction of an* %udgment that ma* be recovered in the following casesE !? :n an action for the recover* of a specified amount of mone* or damages7 other than moral and e1emplar*7 on a cause of action arising from law7 contract7 ,uasicontract7 delict or ,uasi-delict against a part* who is about to depart from the hilippines with intent to defraud his creditors9

"? :n an action for mone* or propert* embe@@led or fraudulentl* misapplied or converted to his own use b* a public officer7 or an officer or a corporation7 or an attorne*7 factor7 broker7 agent7 or clerk7 in the course of his emplo*ment as such7 or b* an* other person in a fiduciar* capacit*7 or for a willful violation of dut*9 &? :n an action to recover the possession of propert* un%ustl* or fraudulentl* taken7 detained or converted7 when the propert*7 or an* part thereof7 has been concealed7 removed7 or disposed of to prevent its being found or taken b* the applicant or an authori@ed person9 '? :n an action against a part* who has been guilt* of a fraud in contracting the debt or incurring the obligation upon which the action is brought7 or in the performance thereof9 (? :n an action against a part* who has removed or disposed of his propert*7 or is about to do so7 with intent to defraud his creditors9 or )? :n an action against a part* who does not reside and is not found in the hilippines7 or on whom summons ma* be served b* publication.

EVIDEN/E ;R%$
/ON/E,T O) EVIDEN/E 2vidence is the means7 sanctioned b* the Rules of Court7 of ascertaining in a %udicial proceeding the truth respecting a matter of fact. :t is onl* a means of ascertaining the truth. 4his truth should depend upon the evidence submitted in a court in accordance with the rules. 8enerall*7 the manner of proving factual allegations is through witnesses who are placed in the witness stand to testif* on what the* personall* know or to identif* relevant documents. 4he* are presented voluntaril* or through the coercive process of su%!oen" 'uces tecu$.

s 126 112=

2vidence is also secured b* resorting to modes of discoveries7 such asE a? 4aking of depositions of an* person7 oral or written >Rule "&?9 b? Serving of interrogatories to parties >Rule "(?9 c? Serving of re,uests for admission b* the adverse part* >Rule "(?9 d? roduction and inspection of documents >Rule "+?9 and e? 21amination of ph*sical and mental conditions of persons >Rule "-?. A matter ma* also be proved b* means of affidavit7 such as in motions based on facts not

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Rules on Summar* rocedure7 and those filed in administrative or ,uasi-%udicial bodies. S/O,E O) T>E R(LES O) EVIDEN/E 4he rules of evidence are guided b* the !rinci! e of unifor$it+. As a general polic*7 the rules of evidence shall be the same in all courts and in all trials and hearings. EVIDEN/E IN /IVIL /ASES 4he part* having the burden of proof must prove his claim b* a preponderance of evidence. An offer of compromise is not an admission of an* liabilit*7 and is not admissible in evidence against the offeror. EVIDEN/E IN /RIMINAL /ASES 4he guilt of the accused has to be proven be*ond reasonable doubt. 21cept in cases of criminal negligence or those allowed b* law to be compromised7 an offer of compromise b* the accused ma* be received in evidence as an implied admission of guilt. 4he accused en%o*s the presumption of innocence.

ertains to the abilit* of the evidence to be allowed and accepted sub%ect to its relevanc* and competence

ertains to the effect of evidence admitted

REA(ISITES )OR ADMISSIBILIT' O) EVIDEN/E a? 4hat it is relevant to the issue9 and b? 4hat it is competent7 that is7 that it does not belong to that class of evidence which is e1cluded b* the law or the rules. RELEVAN/E O) EVIDEN/E AND /OLLATERAL MATTERS *e e6"nce / evidence must have such a relation to the fact in issue as to induce belief in its e1istence or non-e1istence. Co "ter" $"tters - evidence on collateral matters shall not be allowed7 e1cept when it tends in an* reasonable degree to establish the probabilit* or improbabilit* of the fact in issue or to corroborate or supplement facts established previousl* b* direct evidence. a? rospectant collateral matters J those preceding of the fact in issue but pointing forward to it7 like moral character7 motive7 conspirac*9 b? Concomitant collateral matters J those accompan*ing the fact in issue and pointing to it7 like alibi7 or opportunit* and incompatibilit*9 c? Retrospectant collateral matters J those succeeding the fact in issue but pointing backward to it7 like flight and concealment7 behavior of the accused upon being arrested7 fingerprints or footprints7 articles left at the scene of the crime which ma* identif* the culprit. M(LTI,LE ADMISSIBILIT' 4here are times when proffered evidence is admissible for two or more purposes. Sometimes it is admissible for one purpose but inadmissible for another or vice versa. :t ma* also be admissible against one part* but not against another. 4his kind of evidence is to b received provided it meets the relevanc* and competenc* tests for which it is offered. /ONDITIONAL ADMISSIBILIT' 2vidence which appears to be immaterial is admitted b* the court and the proponent ma*

8enerall*7 there is no presumption for or against a part*7 e1cept in some civil cases such as in a contractual suit against the carrier7 there e1ists a presumption against the defendant. EVIDEN/E $edium of proof $eans to the end )A/T(M ,ROBAND(M roposition to established

,ROO) 2ffect and result of evidence 6 2nd result. )A/T(M ,ROBANS $aterial evidencing the proposition

be

ADMISSIBILIT' O) EVIDEN/E 4wo a1ioms of admissibilit*E a? #one but facts having rational probative value are admissible >relevance?. b? All facts having rational probative value are admissible unless some specific rules forbid >competence?. ADMISSIBILIT' O) WEI+>T O)

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ask that the evidence be conditionall* admitted in the meantime sub%ect to the condition that he is going to establish its relevanc* and competenc* at a later time. :f a promise thus made is not fulfilled7 the court ma* strike out the evidence thus conditionall* admitted7 if a motion is made b* the opposite part*. /(RATIVE ADMISSIBILIT' :t refers to a situation where incompetent evidence was erroneousl* received b* the court despite ob%ection from the other part*. :t will not appl* where the evidence was admitted without ob%ection because of a waiver of the admissibilit* of the evidence. So7 where the ob%ection was incorrectl* overruled7 the court must allow the other part* to introduce evidence to contradict the evidence improperl* admitted. 4his is reasons of fairness. DIRE/T AND /IR/(MSTANTIAL EVIDEN/E DIRE/T EVIDEN/E is that which proves the fact in dispute without the aid of an* inference or presumption. 2vidence which if believed proves the e1istence of a fact in issue without interference or presumption. /IR/(MSTANTIAL EVIDEN/E is the proof of facts from which7 taken collectivel*7 the e1istence of the particular fact in dispute ma* be inferred as a necessar* or probable conse,uence. :n a criminal case7 circumstantial evidence is sufficient for conviction provided the following re,uisites concurE !? 4here is more than one circumstances9 "? 4he facts from which the inferences are derived are proven9 and &? 4he combination of all the circumstances is such as to produce a conviction be*ond reasonable doubt. ,OSITIVE AND NE+ATIVE EVIDEN/E 4estimon* is positive when the witness affirms that a fact did or did not e1ist and is entitled to greater weight. :t is negative when he sa*s that he did not see or know of the factual occurrence. :t is considered to be a ver* weak defense and can never overcome an affirmative or positive testimon* particularl* when it comes from the mouth of a credible witness. /OM,ETENT AND /REDIBLE EVIDEN/E

Competent evidence is one that is not e1cluded b* law or the rules. :f the test of relevance is logic and common sense7 the test of competence is the law or the rules. Competence7 in relation to evidence in general7 refers to e i3i%i it+ of "n e6i'ence to %e recei6e' "s such. A witness ma* be competent7 and *et give incredible testimon*9 he ma* be incompetent7 and *et his evidence7 if received7 be perfectl* credible. /OM,ETENT EVIDEN/E Competenc* is a ,uestion which arises before considering the evidence given b* the witness9 4enotes the !erson" (u" ific"tion of the )itness /REDIBLE EVIDEN/E Credibilit* concerns the degree of credit to be given to his testimon*9 Denotes the veracit* of the testimon*

B(RDEN O) ,ROO) Denotes the dut* of establishing the truth of a given proposition or issue b* such ,uantum of evidence as the law demands in the case in which the issue arises. :t remains with the part* alleging facts and never shifts to the other part*. 0e who alleges the affirmative of the issue has the burden of proof7 and the same never parts.

B(RDEN O) EVIDEN/E $eans the necessit* of going forward with the evidence to meet the prima facie case created against him :t shifts from side to side as the trial of the case progresses

,RES(M,TIONS A presumption is an assumption of fact resulting from a rule of law which re,uires such fact to be assumed from another fact or group of facts found or otherwise established in the action. :t is not evidence in itself but it is an assumption resulting from the evidence. 4he* merel* affect the burden of offering evidence. :n a sense7 it is an inference which is mandator* unless rebutted. A& /ON/L(SIVE ,RES(M,TIONS ($=/8& 6; 6 $=/6)

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:t is conclusive when the presumption becomes irrebuttable upon the presentation of the evidence tending to rebut the presumption is not admissible. 4his presumption is in realit* a rule of substantive law. 21amplesE <henever a part* has7 b* his own declaration7 act7 or omission7 intentionall* and deliberatel* led another to believe a particular thing true7 and to act upon such belief7 he cannot7 in an* litigation arising out of such declaration7 act or omission7 be permitted to falsif* itE 4he tenant is not permitted to den* the title of his landlord at the time of the commencement of a? 4hat a person is innocent of crime or wrong9 b? 4hat an unlawful act was done with an unlawful intent9 c? 4hat a person intends the ordinar* conse,uences of his voluntar* act9 d? 4hat a person takes ordinar* care of his concerns9 e? 4hat evidence willfull* suppressed would be adverse if produced (*u e 131, Sec 3). LIBERAL /ONSTR(/TION O) T>E R(LES O) EVIDEN/E 4he rules of evidence must be i%er" + construe'. Rules of procedure are mere tools intended to facilitate rather than to frustrate the attainment of %ustice. A strict and rigid application of the rules must alwa*s be eschewed if it would subvert their primar* ob%ective of enhancing substantial %ustice. :t means that the words should receive a fair and reasonable interpretation7 so as to secure a %ust7 speed* and ine1pensive disposition of ever* action or proceeding. A(ANT(M O) EVIDEN/E ;WEI+>T AND S())I/IEN/' O) EVIDEN/E NR(LE 111O= A& ,ROO) BE'OND REASONABLE DO(BT re,uired for conviction of an accused in criminal case the logical and inevitable result of the evidence on record7 e1clusive of an* other consideration7 of the moral certaint* of the guilt of the accused or that degree of proof which produces conviction in an unpre%udiced mind. :t does not mean such degree of proof as7 e1cluding possibilit* of error7 produces

the relation of landlord and tenant between them.

B& DIS,(TABLE ,RES(M,TIONS ($=/8& ;A4;=@) :t is disputable or rebuttable or it ma* be contradicted or overcome b* other evidence. <hen evidence that rebuts the presumption is introduced7 the force of the presumption disappears. absolute certaint*. $oral certaint* onl* is re,uired. B& /LEAR AND /ONVIN/IN+ EVIDEN/E that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. it is more than preponderance but not to the e1tent of such moral certaint* as is re,uired be*ond reasonable doubt as in criminal cases. :t is often said that to overcome a disputable presumption of law7 clear and convincing evidence is re,uired (use to contr"'ict the !resu$!tion of 6" i'it+ "n' re3u "rit+ in f"6or of " not"ri" or !u% ic 'ocu$ent; the ") enforcers h"6e re3u "r + !erfor$e' their 'uties re(uires th"t !roof of fr"$e/u!; "n "ccuse' )ho in6o9es se f/ 'efense). 4his standard should be lower than proof be*ond reasonable doubt but higher than preponderance of evidence. /& ,RE,ONDERAN/E O) EVIDEN/E re,uired in civil cases that which is of greater weight or more convincing than that which is offered in opposition to it9 s*non*mous with the terms Mgreater weight of evidenceN or Mgreater weight of credible evidence.N :t means probabl* the truth. :t is evidence which is more convincing to the court as worth* of belief than that which is offered in opposition thereto. D& S(BSTANTIAL EVIDEN/E

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re,uired in administrative proceedings or ,uasi-%udicial bodies such relevant evidence as a reasonable mind might accept as ade,uate to support a conclusion more than a scintilla but ma* be somewhat less than preponderance7 even if other reasonable minds might conceivabl* opine otherwise. (SC s"i' th"t in "'$inistr"ti6e c"ses "3"inst &u'3esIsherrifs "re hi3h + !en" in n"ture "n' re(uires !roof %e+on' re"son"% e 'ou%t). .(DI/IAL NOTI/E AND .(DI/IAL ADMISSIONS MATTERS O) .(DI/IAL NOTI/E 4here are matters which must be admitted without need for evidence. All these matters which the court ma* take cogni@ance of without evidence are called matters of M%udicial noticeN. 4he function of %udicial notice is to abbreviate litigation b* the admission of matters that need no evidence. :t takes the place of proof and is of e,ual force. :t displaces evidence and fulfils the purpose for which the evidence is designed to fulfil. a. MANDATOR' when the matter is sub%ect to a mandator* %udicial notice7 no motion of hearing is necessar* for the court to take %udicial notice of a fact. 4hese areE a? the e1istence and territorial e1tent of states9 b? the political histor*7 forms of government and s*mbols of nationalit* of states9 c? the law of nations9 d? the admiralt* and maritime courts of the world and their seals9 e? the political constitution and histor* of the hilippines9 f? the official acts of the legislative7 e1ecutive and %udicial departments of the hilippines9 g? the laws of nature9 h? the measure of time9 and i? the geographical divisions. b. DIS/RETIONAR' < A court ma* take %udicial notice of mattersE a? which are of public knowledge9 or b? capable of un,uestionable demonstration9 or c? ought to be known to %udges because of their %udicial functions.

4he principles of discretionar* %udicial notice will appl* here the following re,uisites are metE a? 4he matter must be of common knowledge9 b? 4he matter must be settled be*ond reasonable doubt >if there is na* uncertaint* about the matter7 then evidence must be adduced?9 and c? 4he knowledge must e1ist within the %urisdiction of the court. .(DI/IAL ADMISSIONS /udicial admissions are conclusive upon the part* making them7 while e1tra%udicial admissions or other admissions are7 as a rule7 and where the elements of estoppels are not present7 disputable and needs to be formall* offered in evidence. Declaration of a part* favorable to himself are not admissible as proof of the facts asserted. 4he* ma* be e1press or implied7 implied admissions b* a defendant of material facts alleged in a complaint include !? keeping silent on such material facts7 "? den*ing such material facts without setting forth the matters upon which he relies to support his denial7 and &? asserting lack of knowledge or information of the truth of the material allegations when the same is plainl* and necessaril* within the knowledge of defendant. E))E/T O) .(DI/IAL ADMISSIONS An admission7 verbal or written7 made b* a part* in the course of the proceedings in the same case7 does not re,uire proof. Bnder Sec. '7 Rule !".7 the following are the effects of %udicial admissionsE !? 4he* do not re,uire proof9 and "? 4he* cannot be contradicted because the* are conclusive upon the part* making it. >OW .(DI/IAL ADMISSIONS MA' BE /ONTRADI/TED /udicial admissions can be contradictedE !? 4hat it was made through palpable mistake9 or "? #o such admission was in fact made. 4hese e1ceptions ma* negate the admission. But %efore the court $"+

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" o) " !"rt+ to re ie6e hi$ of the effects of "'$issions or to )ith'r") therefro$, he h"s to sho), %+ !ro!er $otion, &ustifi"% e re"son or !" !"% e $ist"9e. .(DI/IAL NOTI/E O) )OREI+N LAWS? LAW O) NATIONS AND M(NI/I,AL ORDINAN/E 5oreign laws ma* not be taken %udicial notice of and have to be proven like an* other fact b* an official publication or b* a dul* attested and authenticated cop* thereof. :t must be alleged and proved. 1he !ro6isions of the forei3n ") $"+ " so %e the su%&ect of &u'ici" "'$ission un'er Sec. 8, *u e 129. A%sent "n+ of the fore3oin3 e6i'ence or "'$ission, the forei3n ") is !resu$e' to the s"$e "s th"t in the Phi i!!ines, un'er the so/c" e' 'octrine of !rocessu" !resu$!tion. 0owever7 the court ma* take %udicial notice of the treatise containing the foreign law. Law of nations is sub%ect to mandator* %udicial notice under Sec. 1, *u e 129. Bnder the hilippine Constitution7 the hilippines adopts the generall* accepted principles of international law as part of the law of the land. 1he+ "re therefore technic" + in the n"ture of oc" ")s "n' hence, "re su%&ect to " $"n'"tor+ &u'ici" notice. $4Cs must take %udicial notice of municipal ordinances in force in the municipalit* in which the* sit. R4Cs should also take %udicial notice of municipal ordinances in force in the municipalities within their %urisdiction but onl* when so re,uired b* law. (i.e. the ch"rter of Cit+ of ,"ni " re(uires " courts sittin3 therein to t"9e &u'ici" notice of " or'in"nces !"sse' %+ the cit+ counci .) Such court must take %udicial notice also of municipal ordinances on appeal to it from the inferior court in which the latter took %udicial. 4he CA ma* take %udicial notice of municipal ordinances because nothing in the Rules prohibits it from taking cogni@ance of an ordinance which is capable of un,uestionable demonstration. R(LES O) ADMISSIBILIT' ;R(LE 110= OB.E/T ;REAL= EVIDEN/EH NAT(RE O) OB.E/T EVIDEN/E

3b%ects as evidence are those addressed to the senses of the court. <hen an ob%ect is relevant to the fact in issue7 it ma* be e1hibited to7 e1amined or viewed b* the court. Real evidence is also called autoptic preference7 which is inspection b* the court of a thing itself and its conditions7 to enable the court to effectivel* e1ercise its %udicial power of receiving and weighing the evidence. :t is knowledge ac,uired b* the court from inspection or b* direct selfperception or autops* of the evidence. h*sical evidence is evidence of the highest order. :t speaks more elo,uentl* than a hundred witnesses. REA(ISITES )OR ADMISSIBILIT' O) ;REAL= EVIDEN/E

a? 4he ob%ect must be relevant to the fact in b? c?


issue (to %e re e6"nt, the e6i'ence $ust h"6e " re "tionshi! to the f"ct in issue); 4he ob%ect must be competent ($ust not %e e#c u'e' %+ the ru es); 4he ob%ect must be authenticated before it is admitted (it $ust %e sho)n th"t it is the 6er+ thin3 )hich is the su%&ect $"tter of the suit); 4he authentication must be made b* a competent witness9 and 4he ob%ect must be formall* offered in evidence.

d? e?

/ATE+ORIES O) OB.E/T EVIDEN/E 5or purposes of authentication of an ob%ect or for la*ing the foundation for the e1hibit7 ob%ect evidence ma* be classified into the followingE a? Bni(ue F%&ects - 3b%ect that have readil* identifiable marks ( i9e seri" nu$%er of " c" i%re 85 !isto ); b? F%&ects ,"'e Bni(ue / 3b%ects that are made readil* identifiable ( i9e " t+!ic" 9nife, )itness $"+ i'entif+ %+ ! "cin3 $"r9s on it); and c? -on/Bni(ue F%&ects / 3b%ects with no identif*ing marks and cannot be marked ( i9e 'ro! of % oo', oi , "n' 'ru3s, the !ro!onent $ust est"% ish " ch"in of custo'+). DEMONSTRATIVE EVIDEN/E Demonstrative evidence is tangible evidence that merel* illustrates a matter of importance in the litigation. Common t*pes of demonstrative

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evidence include photographs7 motion pictures and recordings7 1-ra* pictures7 scientific tests7 demonstrations and e1periments7 maps7 diagrams7 models7 summaries7 and other materials created especiall* for the litigation. :n contrast to demonstrative evidence7 ob%ect evidence is a tangible ob%ect that pla*ed some actual role in the matter that gave rise to the litigation. 5or instance7 the knife used in the altercation that forms the basis for the lawsuit. 4he foundation for demonstrative evidence does not involve showing that the ob%ect was the one used in the underl*ing event. Rather7 the foundation generall* involves showing that the demonstrative ob%ect fairl* represents or illustrates what it is alleged to illustrate. VIEW O) AN OB.E/T OR S/ENE 4he inspection ma* be made inside or outside the courtroom. An inspection or view outside the courtroom should be made in the presence of the parties or at least with previous notice to them. :t is error for the %udge for e1ample7 to go alone to the land in ,uestion7 or to the place where the crime was committed and take a view without the previous knowledge of the parties. Such inspection or view is part of the trial since evidence is thereb* being received. />AIN O) /(STOD' IN RELATION TO SE/TION 21 O) T>E /OM,RE>ENSIVE DAN+ERO(S DR(+S A/T O) 2002 4he purpose of chain of custod* is to guarant* the integrit* of the ph*sical evidence and to prevent the introduction of evidence which is not authentic. 4he D2A shall take charge and have custod* of all dangerous drugs7 plant sources of dangerous drugs7 controlled precursors and essential chemicals7 as well as instruments6paraphernalia and6or laborator* e,uipment so confiscated7 sei@ed and6or surrendered7 for proper disposition in the following mannerE !? 4he apprehending team having initial custod* and control of the drugs shall7 immediatel* after sei@ure and confiscation7 ph*sicall* inventor* and photograph the same in the presence of the accused and an* elected public official who shall be re,uired to sign the copies of the inventor* and be given a cop* thereof9

"? <ithin "' hours upon confiscation6sei@ure7 the same shall be submitted to the D2A 5orensic Laborator* for a ,ualitative and ,uantitative e1amination9 &? A certification of the forensic laborator* e1amination results7 which shall be done under oath b* the forensic laborator* e1aminer7 shall be issued within "' hours after the receipt of the sub%ect item6s9 '? After the filing of the criminal case7 the Court shall7 within +" hours7 conduct an ocular inspection of the confiscated7 sei@ed and6or surrendered dangerous drugs7 plant sources of dangerous drugs7 and controlled precursors and essential chemicals7 including the instruments6 paraphernalia and6or laborator* e,uipment7 and through the D2A shall within "' hours thereafter proceed with the destruction or burning of the same7 in the presence of the accused or the person6s from whom such items were confiscated and6or sei@ed7 or his6her representative or counsel7 a representative from the media and the D3/7 civil societ* groups and an* elected public official. (? 4he Board shall then issue a sworn certification as to the fact of destruction or burning of the sub%ect item6s which7 together with the representative sample6s in the custod* of the D2A7 shall be submitted to the court having %urisdiction over the case9 and )? 4he alleged offender or his6her representative or counsel shall be allowed to personall* observe all of the above proceedings and his6her presence shall not constitute an admission of guilt. :n case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his6her counsel within +! hours before the actual burning or destruction or the evidence in ,uestion7 the S3/ shall appoint a member of the A3 to represent the former9 +? After the promulgation and %udgment in the criminal case wherein the representative sample6s was presented as evidence in court7 the trial prosecutor shall inform the Board of the final termination of the case and7 in turn7 shall re,uest the court for leave to turn over the said representative sample6s to the D2A for proper disposition and destruction within "' hours from receipt of the same.

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!? <as not previousl* sub%ected to


R(LE ON DNA EVIDEN/E ;A&M& NO& 04<11<3< S/= 4otes> D#A report is a documentar* evidence D#A testing order is e1ecutor*7 unless there is an in%unction 4he Rule on D#A 2vidence is the primar* rule to be applied whenever D#A evidence is offered7 used or proposed to be offered or used as evidence in criminal and civil actions and special proceedings. MEANIN+ O) DNA D#A means deo1*ribonucleic acid7 which is the chain of molecules found in ever* nucleated cell of the bod*. 4he totalit* of an individualCs D#A is uni,ue for the individual7 e1cept identical twins. D#A evidence constitutes the totalit* of the D#A profiles7 results and other genetic information directl* generated from D#A testing of biological samples. DNA -ro:i$ means genetic information derived from D#A testing of a biological sample obtained from a person7 which biological sample is clearl* identifiable as originating from that person9 DNA t sting means verified and credible scientific methods which include the e1traction of D#A from biological samples7 the generation of D#A profiles and the comparison of the information obtained from the D#A testing of biological samples for the purpose of determining7 with reasonable certaint*7 whether or not the D#A obtained from two or more distinct biological samples originates from the same person >direct identification? of if the biological samples originate from related persons >kinship anal*sis?. A,,LI/ATION )OR DNA TESTIN+ ORDER 4he appropriate court ma*7 at an* time7 either $otu !ro!io or on application of an* person who has a legal interest in the matter in litigation7 order a D#A testing. Such order shall issue after due hearing and notice to the parties upon a showing of the followingE a? A biological sample e1ists that is relevant to the case9 b? 4he biological sampleE the t*pe of D#A testing now re,uested9 or "? <as previousl* sub%ected to D#A testing but the results ma* re,uire confirmation for good reasons9 c? 4he D#A testing uses a scientificall* valid techni,ue9 d? 4he D#A testing has the scientific potential to produce new information that is relevant to the proper resolution of the case9 and e? 4he e1istence of other factors7 if an*7 which the court ma* consider as potentiall* affecting the accurac* of integrit* of the D#A testing. 4his rule shall not preclude a D#A testing7 without need of prior court order7 at the behest of an* part*7 including law enforcement agencies7 before a suit or proceeding is commenced. ,OST</ONVI/TION DNA TESTIN+H REMED' ,ost<con0iction DNA t sting ma* be available7 without need of prior court order7 to the prosecution or an* person convicted b* final and e1ecutor* %udgment provided that a? a biological sample e1ists7 b? such sample is relevant to the case7 and c? the testing would probabl* result in the reversal or modification of the %udgment of conviction. Remed* - 4he convict or the prosecution ma* file for a writ of habeas corpus in the court of origin if he results of the post-conviction D#A testing are favorable to the convict. :n case the court7 after due hearing finds the petition to be meritorious7 it shall reverse or modif* the %udgment of conviction and order the release of the convict7 unless continued detention is %ustified for a lawful cause. ASSESSMENT O) ,ROBATIVE VAL(E O) DNA EVIDEN/E AND ADMISSIBILIT' 4he following are the guidelines to be used in assessing the probative value of the D#A evidenceE a? 0ow the samples were collected9 b? 0ow the* were handled9 c? 4he possibilit* of contamination of the samples9 d? 4he procedure followed in anal*@ing the samples9

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e? <hether the proper standards and procedures were followed in conducting the tests9 and f? 4he ,ualification of the anal*st who conducted the test. 4he determination of the probative value of the D#A evidence rests upon the sound %udicial assessment taking into considerations the following mattersE a? 4he chair of custod*7 including how the biological samples were collected7 how the* were handled7 and the possibilit* of contamination of the samples9 b? 4he D#A testing methodolog*7 including the procedure followed in anal*@ing the samples7 the advantages and disadvantages of the procedure7 and compliance with the scientificall* valid standards in conducting the tests9 c? 4he forensic D#A laborator*7 including accreditation b* an* reputable standardssetting institution and the ,ualification of the anal*st who conducted the tests. :f the laborator* is not accredited7 the relevant e1perience of the laborator* in forensic casework and credibilit* shall be properl* established9 and d? 4he reliabilit* of the testing result7 as herein after provided. 4he provisions of the Rules of Court concerning the appreciation of evidence shall appl* suppletoril*. R(LES ON EVAL(ATION O) RELIABILIT' O) T>E DNA TESTIN+ MET>ODOLO+' :n evaluating whether the D#A testing methodolog* is reliable7 the court shall consider the followingE a? 4he falsifiabilit* of the principles or methods used7 that is7 whether the theor* or techni,ue can be and has been tested9 b? 4he sub%ection to peer review and publication of the principles or methods9 c? 4he general acceptance of the principles or methods b* the relevant scientific communit*9 d? 4he e1istence and maintenance of standards and controls to ensure the correctness of data generated9 e? 4he e1istence of an appropriate reference population database9 and f? 4he general degree of confidence attributed to mathematical calculations used in comparing D#A profiles and the significance and limitation of statistical

calculations profiles.

used

in

comparing

D#A

DO/(MENTAR' EVIDEN/E Documentar* evidence is evidence supplied b* written instruments7 or derived from conventional s*mbols7 such as letters7 b* which ideas are represented on material substances9 documents produced for the inspection of the court or %udge. :t includes books7 papers accounts and the like. Documents as evidence consist of )ritin3 or "n+ $"teri" >not onl* writing? containing letters7 words7 numbers7 figures7 s*mbols or other modes of written e1pressions offered as -roo: o: t! ir cont nts& REA(ISITES )OR ADMISSIBILIT' a? 4he document must be relevant to the fact in issue b? 4he document must be competent c? 4he document must be authenticated before it is admitted d? 4he authentication must be made b* a competent witness9 and e? 4he document must be formall* offered in evidence. BEST EVIDEN/E R(LE MEANIN+ O) T>E R(LE :t re,uires the highest grade of evidence obtainable to prove a disputed fact. :t cannot be invoked unless t! cont nts o: "riting is t! s%9@ ct o: @%#icia$ inE%iry7 in which case the best evidence is the original writing itself. 4he best evidence refers to that which the law or the rules consider as the best evidence to prove the fact in dispute. 4he best evidence is the evidence which the case in its nature is susceptible and which is within the power of the part* to produce. 2vidence cannot be received which indicates on its face that it is secondar*7 that is7 merel* substitutionar* in its nature7 and that the original source of information is in e1istence and accessible. 4he underl*ing purpose is the prevention of fraud. W>EN A,,LI/ABLE <hen the sub%ect of in,uir* is the contents of a document7 no evidence shall be admissible other

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than the original document itself7 e1cept in the following casesE a? <hen the original has been lost or destro*ed7 or cannot be produced in court7 without bad faith on the part of the offeror9 b? <hen the original is in the custod* or under the control of the part* against whom the evidence is offered7 and the latter fails to produce it after reasonable notice9 c? <hen the original consists of numerous accounts or other documents which cannot be e1amined in court without great loss of time and the fact sought to be established from them is onl* the general result of the whole9 and d? <hen the original is a public record in the custod* of a public officer or is recorded in a public office. :t applies onl* to documentar* evidence. MEANIN+ O) ORI+INAL 4he original does not necessaril* mean the one first written9 its meaning is relative onl* to the particular issue. 4he original is the document whose contents are to be proved. Sec. 8, *u e 13. has clarified what constitutes the original of a documentE a? 4he original of a document is one the contents of which are the sub%ect of in,uir*9 b? <hen a document is in two or more copies e1ecuted at or about the same time7 with identical contents7 all such copies are e,uall* regarded as originals9 and c? <hen an entr* is repeated in the regular course of business7 one being copied from another at or near the time of the transaction7 all the entries are likewise e,uall* regarded as originals. REA(ISITES )OR INTROD(/TION O) SE/ONDAR' EVIDEN/E 4he offeror must satisf* first the re,uirements for la*ing the basis for the presentation of secondar* evidence. La*ing the basis involves e1plaining to the satisfaction of the court the reason for the inabilit* to offer the original of the document7 in the followingE !? 4he e1ecution or e1istence of the original9 "? 4he loss and destruction of the original or its nonproduction in court9

&? Bnavailabilit* of the original is not due to bad faith on the part of the offeror. :f the offeror has successfull* laid the basis for the presentation of the secondar* evidence7 then the original need not be presented. 0owever7 one must observe the order in which the secondar* evidence is to be offered. 4his is because not ever* secondar* evidence can be offered. 4he following order must therefore7 be observedE a? A cop* of the original9 b? :f there is no cop*7 then a recital of its contents in some authentic document9 c? :n default of hereof7 b* the testimon* of witnesses in the order stated. W! n origina$ #oc%m nt is %na0ai$a9$ <hen the original document has been lost or destro*ed7 or cannot be produced in court7 the offeror7 upon proof of its e1ecution or e1istence and the cause of its unavailabilit* without bad faith on his part7 ma* prove its contents b* a cop*7 or b* a recital of its contents in some authentic document7 or b* the testimon* of witnesses in the order stated. W! n origina$ #oc%m nt is in a#0 rs -artyPs c%sto#y or contro$ - :f the document is in the custod* or under the control of the adverse part*7 he must have reasonable notice to produce it. :f after such notice and after satisfactor* proof of its e1istence7 he fails to produce the document7 secondar* evidence ma* be presented as in the case of its loss. E0i# nc a#missi9$ "! n origina$ #oc%m nt is a -%9$ic r cor# - <hen the original of a document is in the custod* of a public officer or is recorded in a public office7 its contents ma* be proved b* a certified cop* issued b* the public officer in custod* thereof.

R(LES ON ELE/TRONI/ EVIDEN/E A&M& NO& 01<5<01<S/=

MEANIN+ O) ELE/TRONI/ EVIDEN/EH ELE/TRONI/ DATA MASSA+E

2lectronic evidence is that which use of


electronic data message as evidence.

2lectronic data message refers to information


generated7 sent7 received or stored electronic7 optical or similar means. b*

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2lectronic documents as functional e,uivalent of paper-based documents. <henever a rule of evidence to the term of writing7 document7 record7 instrument7 memorandum or an* other form of writing7 such term shall be deemed to include an electronic document. E$ ctronic #oc%m nt refers to information or the representation of information7 data7 figures7 s*mbols or other modes of written e1pression7 described or however represented7 b* which a right is established or an obligation e1tinguished7 or b* which a fact ma* be proved and affirmed7 which is received7 recorded7 transmitted7 stored7 processed7 retrieved or produced electronicall*. :t includes digitall* signed documents and an* print-out or output7 readable b* sight or other means7 which accuratel* reflects the electronic data message or electronic document. 4he term Melectronic documentN ma* be used interchangeabl* with electronic data message. ,ROBATIVE VAL(E O) ELE/TRONI/ DO/(MENTS OR EVIDENTIAR' WEI+>TH MET>OD O) ,ROO) An electronic document is admissible in evidence if it complies with the rules on admissibilit* prescribed b* the Rules and related laws and is authenticated in the manner prescribed b* the Rules on 2lectronic 2vidence. :n assessing the evidentiar* weight of an electronic document7 the following factors ma* be consideredE a? 4he reliabilit* of the manner or method in which it was generated7 stored or communicated7 including but not limited to input and output procedures7 controls7 tests and checks for accurac* and reliabilit* of the electronic data message or document7 in the light of all the circumstances as well as an* relevant agreement9 b? 4he reliabilit* of the manner in which its originator was identified9 c? 4he integrit* of the information and communication s*stem in which it is recorded or stored7 including but not limited to the hardware and computer programs or software used as well as programming errors9 d? 4he familiarit* of the witness or the person who made the entr* with the communication and information s*stem9

e? 4he nature and ,ualit* of the information which went into the communication and information s*stem upon which the electronic data message or electronic document was based9 or f? 3ther factors which the court ma* consider as affecting the accurac* or integrit* of the electronic document or electronic data message. MET>OD O) ,ROO)C a::i#a0it o: 0i# nc < All matters relating to the admissibilit* and evidentiar* weight of an electronic document ma* be established b* an affidavit stating facts of direct personal knowledge of the affiant or based on authentic records. 4he affidavit must affirmativel* show the competence of the affiant to testif* on the matters contained therein. MET>OD O) ,ROO)C cross< xamination o: # -on nt < 4he affiant shall be made to affirm the contents of the affidavit in open court and ma* be cross-e1amined as a matter of right b* the adverse part*. A(T>ENTI/ATION O) ELE/TRONI/ DO/(MENTS AND ELE/TRONI/ SI+NAT(RES 4he person seeking to introduce an electronic document in an* legal proceeding has the burden of proving its authenticit*. Before an* private electronic document offered as authentic is received in evidence7 its authenticit* must be proved b* an* of the following meansE a? B* evidence that it had been digitall* signed b* the person purported to have signed the same9 b? B* evidence that other appropriate securit* procedures or devices as ma* be authori@ed b* the Supreme Court or b* law for authentication of electronic documents were applied to the document9 or c? B* other evidence showing its integrit* and reliabilit* to the satisfaction of the %udge. A document electronicall* notari@ed in accordance with the rules promulgated b* the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court. An electronic signature or a digital signature authenticated in the manner prescribed hereunder is inadmissible in evidence as the

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functional e,uivalent of the signature or a person on a written document. An electronic signature ma* be authenticated in an* of the following mannersE a? B* evidence that a method or process was utili@ed to establish a digital signature and verif* the same9 b? B* an* other means provided b* law9 or c? B* an* other means satisfactor* to the %udge as establishing the genuineness of the electronic signature. Bpon the authentication of an electronic signature7 it shall be presumed thatE a? 4he electronic signature is that of the person to whom it correlates9 b? 4he electronic signature was affi1ed b* that person with the intention of authenticating or approving the electronic document to which it is related or to indicate such personLs consent to the transaction embodied therein9 and c? 4he methods or processes utili@ed to affi1 or verif* the electronic signature without error or fault. Bpon the authentication of a digital signature7 it shall be presumed7 in addition to those mentioned in the immediatel* preceding section7 thatE a? 4he information contained in a certificate is correct9 b? 4he digital signature was created during the operational period of a certificate9 c? 4he message associated with a digital signature has not been altered from the time it was signed9 and d? A certificate had been issued b* the certification authorit* indicated therein. ELE/TRONI/ DO/(MENTS AND T>E >EARSA' R(LE An electronic document shall be regarded as the e,uivalent of an original document under the Best 2vidence Rule if it is a printout or output readable b* sight or other means7 shown to reflect the data accuratel*. <hen a document is in two or more copies e1ecuted at or about the same time with identical contents7 or is a counterpart produced b* the same impression as the original7 or from the same matri17 or b* mechanical or electronic re-recording7 or b* chemical reproduction7 or b* other e,uivalent techni,ues which accuratel*

reproduces the original7 such copies or duplicates shall be regarded as the e,uivalent of the original. #otwithstanding the foregoing7 copies or duplicates shall not be admissible to the same e1tent as the original ifE a? A genuine ,uestion is raised as to the authenticit* of the original9 or b? :n the circumstances it would be un%ust or ine,uitable to admit a cop* in lieu of the original. A memorandum7 report7 record or data compilation of acts7 events7 conditions7 opinions7 or diagnoses7 made b* electronic7 optical or other similar means at or near the time of or from transmission or suppl* of regular course of conduct of a business activit*7 and such was the regular practice to make the memorandum7 report7 record7 or data compilation b* electronic7 optical or similar means7 all of which are shown b* the testimon* of the custodian or other ,ualified witnesses7 is e1cepted from the rule on hearsa* evidence. 4he presumption ma* be overcome b* evidence of the untrustworthiness of the source of information of the method or circumstances of the preparation7 transmission or storage thereof. A(DIO? ,>OTO+RA,>I/? VIDEO AND E,>EMERAL EVIDEN/E Audio7 photographic and video evidence of events7 acts or transactions shall be admissible provided it shall be shown7 presented or displa*ed to the court and shall be identified7 e1plained or authenticated b* the person who made the recording or b* some other person competent to testif* on the accurac* thereof. 2phemeral electronic communications shall be proven b* the testimon* of a person who was a part* to the same or has personal knowledge thereof. :n the absence or unavailabilit* of such witnesses7 other competent evidence ma* be admitted. :f the foregoing communications are recorded or embodied in an electronic document7 then the provisions of Rule ( >authentication of electronic documents? shall appl*. 2phemeral electronic communication refers to telephone conversations7 te1t messages7 chatroom sessions7 streaming audio7 streaming video7 and other electronic forms of

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communication the evidence of which is not recorded or retained.

,AROL EVIDEN/E R(LE ;R(LE 110= A,,LI/ATION O) T>E ,AROL EVIDEN/E R(LE <hen the terms of an agreement have been reduced to writing7 it is considered as containing all the terms agreed upon7 and there can be between the parties and their successors in interest7 no evidence of such terms other than the contents of the written agreement. :t seeks to preserve what the parties have reduced in writing and prohibits evidence " iun'e or oral testimonial evidence from being presented to var* the terms of7 or add stipulations to7 the written agreement. :n other words7 an* oral evidence of an agreement should be e1cluded when the e1isting agreement is alread* in writing. 3ral testimon* cannot prevail over a written agreement of the parties7 the purpose being to give stabilit* to written agreements and to remove the temptation and possibilit* of per%ur*7 which would be afforded if parol evidence were admissible. 4he rule is based on the presumption that the parties have made the written instrument the onl* repositor* and memorial of the truth and whatever is not found in the instrument must have been waived and abandoned b* the parties. 0ence7 parol evidence cannot serve the purpose of incorporation into the contract additional contemporaneous conditions which are not mentioned at all in the writing7 unless the case falls under an* of the e1ceptions to the rule. W>EN ,AROLE EVIDEN/E /AN BE INTROD(/ED :ntroducing parol evidence means offering e1trinsic or e1traneous evidence that would modif*7 e1plain or add to the terms of the written agreement. arol evidence can be introduced as long as the pleader puts in issue in the pleading an* of the matters set forth in the rule such asE a? An intrinsic ambiguit*7 mistake or imperfection in the written agreement9 b? 4he failure of the written agreement to e1press the true intent and agreement of the parties thereto9

c? 4he validit* of the written agreement9 or d? 4he e1istence of other terms agreed to b* the parties or their successors in interest after the e1ecution of the written agreement. 4he terms FagreementF includes wills. BEST EVIDEN/E R(LE 4he issue is contents of a writing. Secondar* evidence is offered to prove the contents of a writing7 which is not allowed unless the case falls under an* of the e1ceptions. ,AROL EVIDEN/E R(LE 4here is no issue as to contents of a writing. 4he purpose for the offer of parol evidence is to change7 var*7 modif*7 ,ualif*7 or contradict the terms of a complete written agreement7 which is not allowed unless the case falls under an* of the e1ceptions. #ot concerned with the primac* of evidence but presupposes that the original is available. recludes the admission of other evidence to prove the terms of a document other than the contents of the document itself. Can be invoked onl* be the parties to the document and their successors in interest. Applies to written agreements >contracts? and wills.

2stablishes preference for the original document over a secondar* evidence thereof. recludes the admission of secondar* evidence if the original document is available. Can be invoked b* an* litigant to an action whether or not said litigant is a part* to the document involved. Applies to all forms of writing.

A(T>ENTI/ATION AND ,ROO) O) DO/(MENTS ;R(LE 112= MEANIN+ O) A(T>ENTI/ATION < Authentication is the process of evidencing the due e1ecution and genuineness of a document. 2vidence when presented in court is not presumed authentic. 4he general rule therefore is to prove its authenticit* unless it is selfauthenticating. ,(BLI/ VERS(S ,RIVATE DO/(MENTS

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5or the purpose of their presentation evidence7 documents are either public or private. ublic documents areE a? 4he written official acts7 or records of the official acts of the sovereign authorit*7 official bodies and tribunals7 and public officers7 whether of the hilippines7 or of a foreign countr*9 b? Documents acknowledge before a notar* public e1cept last wills and testaments9 and c? ublic records7 kept in the hilippines7 of private documents re,uired b* law to the entered therein. All other writings are private. >"Da? W>EN A ,RIVATE WRITIN+ REA(IRES A(T>ENTI/ATIONH ,ROO) O) A ,RIVATE WRITIN+ A private writing is not self-authenticating. :t re,uires proof of their due e1ecution and authentication before the* can be received in evidence. 4he due e1ecution and authenticit* must be proved eitherE a? B* an*one who saw the document e1ecuted or written9 or b? B* evidence of the genuineness of the signature or handwriting of the maker An* other private document need onl* be identified as that which it is claimed to be. W>EN EVIDEN/E O) A(T>ENTI/IT' O) A ,RIVATE WRITIN+ IS NOT REA(IRED ;AN/IENT DO/(MENTS= !? <hen the genuineness and due e1ecution of the document is admitted b* the adverse part*9 "? <hen such genuineness and due e1ecution are immaterial to the issue9 &? <hen the document is an ancient document. REA(ISITE O) AN AN/IENT DO/(MENT !? $ore than thirt* >&D? *ears old9 "? 5ound in the proper custod*9 &? Bnblemished b* an* alteration or b* an* circumstance of suspicion9 and '? :t must on its face appear to be genuine. >OW TO ,ROVE +EN(INENESS O) A >ANDWRITIN+ 4he handwriting of a person ma* be proved b*E

a? an* witness who believes it to be the handwriting of such person because he has seen the person write7 or b? has seen writing purporting to be his upon which the witness has acted or been charged7 and has thus ac,uired knowledge of the handwriting of such person. 2vidence respecting the handwriting ma* also be given b* a comparison7 made b* the witness or the court7 with writings admitted or treated as genuine b* the part* against whom the evidence is offered7 or proved to be genuine to the satisfaction of the %udge. #oteE 4he identification of handwriting should not rest7 therefore7 on the apparent similarit* or dissimilarit* of one feature but should be based on the e1amination of all the basic characteristics of the handwriting under stud*. ,(BLI/ DO/(MENTS AS EVIDEN/E ublic documents areE a? 4he written official acts7 or records of the official acts of the sovereign authorit*7 official bodies and tribunals7 and public officers7 whether of the hilippines7 or of a foreign countr*9 b? Documents acknowledged before a notar* public e1cept last wills and testaments9 and c? ublic records7 kept in the hilippines7 of private documents re,uired b* law to be entered therein. ublic documents are of two classesE a? 4hose issued b* competent public officials b* reason of their office7 and b? 4hose e1ecuted b* private individuals which are authenticated b* notaries public. Documents consisting of entries in public records made in the performance of a dut* b* a public officer are -rima :aci 0i# nc of the facts therein stated. All other public documents are evidence7 even against a third person7 of the fact which gave rise to their e1ecution and of the date of the latter. ,ROO) O) O))I/IAL RE/ORD 4he record of public documents >official acts?7 when admissible for an* purpose7 ma* be evidenced

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a? b* an official publication thereof or b? b* a cop* attested b* the officer having the legal custod* of the record7 or b* his deput*7 and accompanied7 if the record is not kept in the hilippines7 with a certificate that such officer has the custod*. :f the office in which the record is kept is in a foreign countr*7 the certificate ma* be made b* a secretar* of the embass* or legation7 consul general7 consul7 vice consul7 or consular agent or b* an* officer in the foreign service of the hilippines stationed in the foreign countr* in which the record is kept7 and authenticated b* the seal of his office. ATTESTATION O) A /O,' <henever a cop* of a document or record is attested for the purpose of evidence7 the attestation must state7 in substance7 that the cop* is a correct cop* of the original7 or a specific part thereof7 as the case ma* be. 4he attestation must be under the official seal of the attesting officer7 if there be an*7 or if he be the clerk of a court having a seal7 under the seal of such court. ,(BLI/ RE/ORD O) A ,RIVATE DO/(MENT An authori@ed public record of a private document ma* be proved b* the original record7 or b* a cop* thereof7 attested b* the legal custodian of the record7 with an appropriate certificate that such officer has the custod*. ,ROO) O) LA/8 O) RE/ORD A written statement signed b* an officer having the custod* of an official record or b* his deput* that after diligent search no record or entr* of a specified tenor is found to e1ist in the records of his office7 accompanied b* a certificate as above provided7 is admissible as evidence that the records of his office contain no such record or entr*. >OW A .(DI/IAL RE/ORD IS IM,EA/>ED An* %udicial record ma* be impeached b* evidence ofE a? want of %urisdiction in the court or %udicial officer7 b? collusion between the parties7 or c? fraud in the part* offering the record7 in respect to the proceedings

which must be clear7 convincing and more than merel* preponderant7 in order to overcome the presumption of regularit* in the performance of official duties and the presumption of regularit* of %udicial proceedings7 and the burden of proof lies on the part of the part* who challenges the validit* of %udicial records. ,ROO) O) NOTARIAL DO/(MENTS A document acknowledged before a notar* public becomes a public instrument and renders it admissible in court without further proof of its authenticit*. >OW TO E*,LAIN ALTERATIONS IN A DO/(MENT 4he part* producing a document as genuine which has been altered and appears to have been altered after its e1ecution7 in a part material to the ,uestion in dispute7 must account for the alteration. 0e ma* show that the alteration was made b* another7 without his concurrence7 or was made with the consent of the parties affected b* it7 or was otherwise properl* or innocentl* made7 or that the alteration did not change the meaning or language of the instrument. :f he fails to do that the document shall not be admissible in evidence. DO/(MENTAR' EVIDEN/E IN AN (NO))I/IAL LAN+(A+E Documents written in an unofficial language shall not be admitted as evidence7 unless accompanied with a translation into 2nglish or 5ilipino. 4o avoid interruption of proceedings7 parties or their attorne*s are directed to have such translation prepared before trial. TESTIMONIAL EVIDEN/E A(ALI)I/ATIONS O) A WITNESS A prospective witness must show that he has the following abilitiesE !? 4o 3bserve J the testimonial ,ualit* of perception "? 4o Remember J the testimonial ,ualit* of memor* &? 4o Relate J the testimonial ,ualit* of narration

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'? 4o Recogni@e a dut* to tell the truth J the testimonial ,ualit* of sincerit*.

All

persons who can perceive7 and perceiving7 can make known their perception to others7 ma* be witnesses. Religious or political belief7 interest in the outcome of the case7 or conviction of a crime unless otherwise provided b* law7 shall not be a ground for dis,ualification. Loss of the perceptive sense after the occurrence of the fact does not affect the admissibilit* of the testimon*.

A blind man can testif* to what he saw

prior to his blindness or a deaf man7 to what he heard prior to his deafness. But a person incapable of perception is !ro t"nto incapable of testif*ing.

d? $entall* immaturit* J Children whose mental maturit* is such as to render them incapable of perceiving the facts respecting which the* are e1amined and of relating them truthfull*. e? Marita$ #isE%a$i:ication J During their marriage7 neither the husband nor the wife ma* testif* for or against the other without the consent of the affected spouse7 e1cept in a civil case b* one against the other7 or in a criminal case for a crime committed b* one against the other or the latterTs direct descendants or ascendants. f? arental and filial privilege -- #o person ma* be compelled to testif* against his parents7 other direct ascendants7 children or other direct descendants. RELATIVE DISA(ALI)I/ATION ;a= DEAD MANDS STAT(TE J arties or assignors of parties to a case7 or persons in whose behalf a case is prosecuted7 against an e1ecutor or administrator or other representative of a deceased person7 or against a person of unsound mind7 upon a claim or demand against the estate of such deceased person or against such person of unsound mind7 cannot testif* as to an* matter of fact occurring before the death of such deceased person or before such person became of unsound mind. ;9= DISA(ALI)I/ATION B' REASON O) ,RIVILE+ED /OMM(NI/ATION !. 4he husband or the wife7 during or after the marriage7 cannot be e1amined without the consent of the other as to an* communication received in confidence b* one from the other during the marriage e1cept in a civil case b* one against the other7 or in a criminal case for a crime committed b* one against the other or the latterTs direct descendants or ascendants9 ". An attorne* cannot7 without the consent of his client7 be e1amined as to an* communication made b* the client to him7 or his advice given thereon in the course of7 or with a view to7 professional emplo*ment7 nor can an attorne*Ts secretar*7 stenographer7 or clerk be

A witness ma* have been capable of


perceiving7 *et incapable of narration. 0e ma* have no powers of speech7 and have no means of e1pressing himself b* signs. 0e ma* have become insane since the occurrence he is called upon to relate. A person incapable of narration is !ro t"nto incapable of testif*ing. /OM,ETEN/' VERS(S /REDIBILIT' O) A WITNESS Competenc* of a witness refers to the basic ,ualifications of a witness as his capacit* to perceive and to communicate the same to others. :t also includes the absence of an* of the dis,ualifications imposed upon a witness. Credibilit* of the witness refers to the believabilit* of the witness and has nothing to do with the law or the rules. :t refers to the weight and the trustworthiness or reliabilit* of the testimon*. DISA(ALI)I/ATIONS O) WITNESSES ABSOL(TE DISA(ALI)I/ATION a? 4hose who cannot perceive. b? 4hose who can perceive but cannot make their perception known. c? M nta$$y inca-acity J 4hose whose mental condition7 at the time of their production for e1amination7 is such that the* are incapable of intelligentl* making known their perception to others.

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e1amined7 without the consent of the client and his emplo*er7 concerning an* fact the knowledge of which has been ac,uired in such capacit*9 &. A person authori@ed to practice medicine7 surger* or obstetrics cannot in a civil case7 without the consent of the patient7 be e1amined as to an* advice or treatment given b* him or an* information which he ma* have ac,uired in attending such patient in a professional capacit*7 which information was necessar* to enable him to act in that capacit*7 and which would blacken the reputation of the patient9 '. A minister or priest cannot7 without the consent of the person making the confession7 be e1amined as to an* confession made to or an* advice given b* him in his professional character in the course of discipline en%oined b* the church to which the minister or priest belongs9 (. A public officer cannot be e1amined during his term of office or afterwards7 as to communications made to him in official confidence7 when the court finds that the public interest would suffer b* the disclosure. ;c= NEWSMANDS ,RIVILE+E -- <ithout pre%udice to his liabilit* under the civil and criminal laws7 the publisher7 editor7 columnist or dul* accredited reporter of an* newspaper7 maga@ine or periodical of general circulation cannot be compelled to reveal the source of an* news-report or information appearing in said publication which was related in confidence to such publisher7 editor or reporter unless the court or a 0ouse or committee of Congress finds that such revelation is demanded b* the securit* of the State >RA !'++?9 ;#= BAN8 DE,OSITS -- All deposits of whatever nature with banks or banking institutions in the hilippines including investments in bonds issued b* the 8overnment of the hilippines7 its political subdivisions and its instrumentalities7 are hereb* considered as of an absolutel* confidential nature and ma* not be e1amined7 in,uired or looked into b* an*

person7 government official7 bureau or office7 e1cept upon written permission of the depositor7 or in cases of impeachment7 or upon order of a competent court in cases of briber* or dereliction of dut* of public officials7 or in cases where the mone* deposited or invested is the sub%ect matter of the litigation >RA !'D(?. ; = SAN/TIT' O) T>E BALLOT J voters ma* not be compelled to disclose for whom the* voted. ;:= TRADE SE/RETS ;g= IN)ORMATION /ONTAINED IN TA* RET(RNS >RA "D+D7 as amended b* RA ""!"?. DISA(ALI)I/ATION B' REASON O) MENTAL /A,A/IT' OR IMMAT(RIT' 4he following persons cannot be witnessesE a? 4hose whose mental condition7 at the time of their production for e1amination7 is such that the* are incapable of intelligentl* making known their perception to others9 b? Children whose mental maturit* is such as to render them incapable of perceiving the facts respecting which the* are e1amined and of relating them truthfull*. Regardless of the nature or cause of mental disabilit*7 the test of competenc* to testif* is as to whether the individual has sufficient understanding to appreciate the nature and obligation of an oath and sufficient capacit* to observe and describe correctl* the facts in regard to which he is called to testif*. Basic re,uirements of a childCs competenc* as a witnessE a? Capacit* of observation9 b? Capacit* of recollection9 c? Capacit* of communication. :n ascertaining whether a child is of sufficient intelligence according to the foregoing re,uirements7 it is settled rule that the trial court is called upon to make such determination. DISA(ALI)I/ATION B' REASON O) MARRIA+E ;S,O(SAL IMM(NIT'= As a general rule7 during their marriage7 neither the husband nor the wife ma* testif* for or

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against the other without the consent of the affected spouse. 4he re,uisites of this rule are the followingE !? 4hat the spouse for or against whom the testimon* is offered is a part* to the case9 "? 4hat the spouses are legall* married >valid until annulled?9 &? 4estimon* is offered during the e1istence of marriage9 '? 4he case is not one of the e1ceptions provided in the rule. 4he e1ceptions are the followingE !? <here the testimon* was made outside the marriage9 "? :n a civil case b* one spouse against the other9 or &? :n a criminal case for a crime committed b* one spouse against the other or the latterCs direct descendant or ascendants. DISA(ALI)I/ATION B' REASON O) DEAT> OR INSANIT' O) ADVERSE ,ART' ;S(RVIVORS>I, OR DEAD MANQS STAT(TE= 4his rule applies onl* to a civil case or a special proceeding. 4he following are the elements for the application of the ruleE a? 4he plaintiff is the person who has a claim against the estate of the decedent or person of unsound mind9 b? 4he defendant in the case is the e1ecutor or administrator or a representative of the deceased or the person of unsound mind9 c? 4he suit is upon a claim b* the plaintiff against the estate of said deceased or person of unsound mind9 d? 4he witness is the plaintiff7 or an assignor of that part*7 or a person in whose behalf the case is prosecuted9 and e? 4he sub%ect of the testimon* is as to an* matter of fact occurring before the death ("nte ite$ $ot"$) of such deceased person or before such person became of unsound mind. DISA(ALI)I/ATION B' REASON O) ,RIVILE+ED /OMM(NI/ATIONS BETWEEN >(SBAND AND WI)E 4he application of the rule re,uires the presence of the following elementsE !? 4here must be a valid marriage between the husband and the wife9

"? 4he privilege is invoked with respect to a confidential communication between the spouses during said marriage9 and &? 4he spouse against whom such evidence is being offered has not given his or her consent to such testimon*. MARITAL DISA(ALI)I/ATION ;SE/& 22= Can be invoked onl* if one of the spouses is a part* to the action9 Applies onl* if the marriage is e1isting at the time the testimon* is offered9 Ceases upon the death or either spouse9 Constitutes a total prohibition against an* testimon* for or against the spouse of the witness9 4he prohibition is a testimon* for or against the other. MARITAL ,RIVILE+E ;SE/& 22= Can be claimed whether or not the spouse is a part* to the action9 Can be claimed even after the marriage has been dissolved9 Continues even after the termination of the marriage9 Applies onl* to confidential communications between the spouses. 4he prohibition is the e1amination of a spouse as to matters related in confidence to the other spouse.

BETWEEN ATTORNE' AND /LIENT 5or the rule to appl*7 it is re,uired thatE !? 4here is an attorne* and client relation9 "? 4he privilege is invoked with respect to a confidential communication between them in the course of or with a view to professional emplo*ment9 and &? 4he client has not given his consent to the attorne*Ls testimon* thereon9 or :f the attorne*Cs secretar*7 stenographer or clerk is sought to be e1amined7 that both the client and the attorne* have not given their consent thereto. 4he rule applies when the attorne* has been consulted in his professional capacit*7 even if no fee has been paid therefor. reliminar* communications made for the purpose of creating the attorne*-client relationship are within the privilege. 0owever7 if the communications were not made for the purpose of creating that relationship7 the* will not be covered b* the privilege even if thereafter the

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law*er becomes the counsel of the part* in a case involving said statements. BETWEEN ,>'SI/IAN AND ,ATIENT 5or the dis,ualification to appl*7 it is necessar* thatE a? 4he ph*sician is authori@ed to practice medicine7 surger* or obstetrics9 b? 4he information was ac,uired or the advice or treatment was given b* him in his professional capacit* for the purpose of treating and curing the patient9 c? 4he information7 advice or treatment7 if revealed7 would blacken the reputation of the patient9 and d? 4he privilege is invoked in a civil case7 whether the patient is a part* thereto or not. 4he privilege does not appl* whereE a? 4he communication was not given in confidence9 b? 4he communication is irrelevant to the professional emplo*ment9 c? 4he communication was made for an unlawful purpose7 as when it is intended for the commission or concealment of a crime9 d? 4he information was intended to be made public9 or e? 4here was a waiver of the privilege either b* the provisions of contract or law. 4he privilege survives the death of the patient. BETWEEN ,RIEST AND ,ENITENT A minister or priest cannot7 without the consent of the person making the confession7 be e1amined as to an* confession made to or an* advice given b* him in his professional character in the course of discipline en%oined b* the church to which the minister or priest belongs. 4he communication must be made pursuant to confessions of sin. <here the penitent discussed business arrangements with the priest7 the privilege does not appl*. INVOLVIN+ ,(BLI/ O))I/ERS 4he dis,ualification because of privileged communications to public officers re,uires thatE a? :t was made to the public officer in official confidence9 and

b? ublic interest would suffer b* the disclosure of such communications7 as in the case of State secrets. <here no public interest would be pre%udiced7 this rule does not appl*. 21ceptions to the ruleE a? <hat is asked is useful evidence to vindicate the innocence of an accused person9 b? Disclosure would lessen the risk of false testimon*9 c? Disclosure is essential to the proper disposition of the case9 d? 4he benefit to be gained b* a correct disposition of the litigation was greater than an* in%ur* which could inure to the relation b* a disclosure of the information. ,ARENTAL AND )ILIAL TESTIMONIAL ,RIVILE+E R(LE #o person ma* be compelled to testif* against his parents7 other direct ascendants7 children or other direct descendants. Bn'er Art. 215 of the D"$i + Co'e7 the descendant ma* be compelled to testif* against his parents and grandparents if such testimon* is indispensable in prosecuting a crime against the descendant or b* one parent against the other.

E*AMINATION O) A WITNESS ;R(LE 112= 4he e1amination of witnesses presented in a trial or hearing shall be done in open court7 and under oath or affirmation. Bnless the witness is incapacitated to speak7 or the ,uestion calls for a different mode of answer7 the answers of the witness shall be given orall*. 4he entire proceedings shall be recorded b* means of shorthand or stenot*pe or b* other means of recording found suitable b* the court. A transcript of the record of the proceedings made b* the official stenographer7 stenot*pist or recorder and certified as correct b* him shall be deemed prima facie a correct statement of such proceedings. RI+>TS AND OBLI+ATIONS O) A WITNESS

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A witness must answer ,uestions7 although his answer ma* tend to establish a claim against him. 0owever7 it is the right of a witnessE !? 4o be protected from irrelevant7 improper7 or insulting ,uestions7 and from harsh or insulting demeanor9 "? #ot to be detained longer than the interests of %ustice re,uire9 &? #ot to be e1amined e1cept onl* as to matters pertinent to the issue9 '? #ot to give an answer which will tend to sub%ect him to a penalt* for an offense unless otherwise provided b* law9 or (? #ot to give an answer which will tend to degrade his reputation7 unless it be to the ver* fact at issue or to a fact from which

the fact in issue would be presumed. But a witness must answer to the fact of his previous final conviction for an offense. ORDER IN T>E E*AMINATION O) AN INDIVID(AL WITNESS 4he order in which an individual witness ma* be e1amined is as followsE !? Direct e1amination b* the proponent9 "? Cross-e1amination b* the opponent9 &? Re-direct e1amination b* the proponent9 '? Re-cross-e1amination b* the opponent. (? Recalling the witness

DIRE/T E*AMINATION /ROSS E*AMINATION

RE<DIRE/T E*AMINATION

Direct e1amination is the e1aminationin-chief of a witness b* the part* presenting him on the facts relevant to the issue. Bpon the termination of the direct e1amination7 the witness ma* be crosse1amined b* the adverse part* as to an* matters stated in the direct e1amination7 or connected therewith7 with sufficient fullness and freedom to test his accurac* and truthfulness and freedom from interest or bias7 or the reverse7 and to elicit all important facts bearing upon the issue. After the cross-e1amination of the witness has been concluded7 he ma* be re-e1amined b* the part* calling him7 to e1plain or supplement his answers given during the crosse1amination. 3n re-direct e1amination7 ,uestions on matters not dealt with during the cross-e1amination7 ma* be allowed b* the court in its discretion.

urpose is to build up the theor* of the case b* eliciting facts about the clientLs cause of action or defense. Cross-e1amination aims toE a? 4est the accurac* and truthfulness of the witness and his freedom from interest or bias or the reverse9 and b? 2licit all important facts bearing upon the issue7 not onl* of those covered in the direct e1amination but also on all other matters relevant to the issue6s pleaded. rincipal ob%ects areE a? to prevent in%ustice to the witness and the part* who has called him b* affording an opportunit* to the witness to e1plain the testimon* given on cross-e1amination7 b? to e1plain an* apparent contradiction or inconsistenc* in his statements7 and c? complete the answer of a witness7 or add a new matter which has been omitted7 or correct a possible misinterpretation of testimon*. A witness cannot be recalled without leave of court7 which ma* be granted onl* upon showing of concrete7 substantial grounds. Aims to correct or e1plain his prior testimon*9 or la* the proper foundation for his impeachment7 but this is permitted onl* with the discretion of the court.

RE</ROSS E*AMINATION

RE/ALLIN+ WITNESS

T>E

Bpon the conclusion of the re-direct e1amination7 the adverse part* ma* recross-e1amine the witness on matters stated in his re-direct e1amination7 and also on such other matters as ma* be allowed b* the court in its discretion. After the e1amination of a witness b* both sides has been concluded7 the witness cannot be recalled without leave of the court. 4he court will grant or withhold leave in its discretion7 as the interests of %ustice ma* re,uire.

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Cross-e1amination of a witness is the absolute right7 not a mere privilege7 of the part* against whom he is called9 and with regard to the accused7 it is a right granted b* the Constitution. Sec. 18(2), Art. III thereof provides that the accused shall en%o* the right to meet the witnesses face to face. LEADIN+ AND MISLEADIN+ A(ESTIONS ;SE/& 10? R(LE 112= A ,uestion which suggests to the witness the answer which the e1amining part* desires is a $ a#ing E% stion. :t is not allowed7 e1ceptE !? 3n cross e1amination9 "? 3n reliminar* matters9 &? <hen there is difficult* in getting direct and intelligible answers from a witness who is ignorant7 or a child of tender *ears7 or is of feeble mind7 or a deaf-mute9 '? 3f an unwilling or hostile witness9 or (? 3f a witness who is an adverse part* or an officer7 director7 or managing agent of a public or private corporation or of a partnership or association which is an adverse part*. )? :n all stages of e1amination of a child if the same will further the interests of %ustice (Sec. 2., A, ..8/.:/SC). A mis$ a#ing E% stion is one which assumes as true a fact not *et testified to b* the witness7 or contrar* to that which he has previousl* stated. :t is not allowed (Sec. 1.). 4he adverse part* should ob%ect thereto or ask the court to e1punge the answer from the records7 if he has alread* given his answer. MET>ODS O) IM,EA/>MENT O) ADVERSE ,ART'DS WITNESS 4o impeach means to call into ,uestion the veracit* of the witnessCs testimon* b* means of evidence offered for that purpose7 or b* showing that the witness is unworth* of belief. :mpeachment is an allegation7 supported b* proof7 that a witness who has been e1amined is unworth* of credit. A witness be impeached b* the part* against whom he was calledE a? B* contradictor* evidence9 b? B* evidence that his general reputation for truth7 honest*7 or integrit* is bad9 or

c? B* evidence that he has made at other times statements inconsistent with his present testimon*9 d? But not b* evidence of particular wrongful acts7 e1cept that it ma* be shown b* the e1amination of the witness7 or the record of the %udgment7 that he has been convicted of an offense. 3ther modes of impeachment aside from those provided b* the Rules areE a? B* producing the record of his conviction of an offense9 b? B* showing improbabilit* or unreasonableness of testimon*9 c? B* showing bias7 pre%udice or hostilit*9 d? B* prior acts or conduct inconsistent with his testimon*9 e? B* showing social connections7 occupation and manner of living. f? B* showing interest. g? B* showing intent and motive. 4he part* producing a witness is not allowed to impeach his credibilit*. A witness ma* be considered as unwilling or hostile onl* if so declared b* the court upon ade,uate showing of his adverse interest7 un%ustified reluctance to testif*7 or his having misled the part* into calling him to the witness stand. 4he unwilling or hostile witness so declared7 or the witness who is an adverse part*7 ma* be impeached b* the part* presenting him in all respects as if he had been called b* the adverse part*7 e1cept b* evidence of his bad character. 0e ma* also be impeached and crosse1amined b* the adverse part*7 but such cross e1amination must onl* be on the sub%ect matter of his e1amination-in-chief. >OW T>E WITNESS IS IM,EA/>ED B' EVIDEN/E O) IN/ONSISTENT STATEMENTS (7A%84: ;<6 P/6 8)A;6) Before a witness can be impeached b* evidence that he has made at other times statements inconsistent with his present testimon*E a? the statements must be related to him7 with the circumstances of the times and places and the persons present7 and b? he must be asked whether he made such statements7 and if so7 allowed to e1plain them. :f the statements be in writing the* must be shown to the witness before an* ,uestion is put to him concerning them.

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A witness cannot be impeached b* evidence of contradictor* or prior inconsistent statements until the proper foundation or predicate has been laid b* the part* against whom said witness was called. La*ing the predicate means that it is the dut* of a part* tr*ing to impugn the testimon* of a witness b* means of prior or subse,uent inconsistent statements7 whether oral or in writing7 to give the witness a change to reconcile his conflicting declaration. <here no predicate is laid during the trial proof of alleged inconsistent statements of the witness7 whether verbal or written7 cannot be admitted on ob%ection of the adverse part*7 or be pointed out on appeal for the purpose of destro*ing the credibilit* of the witness. An e1ception to the rule re,uiring the la*ing of foundation for the admissibilit* of evidence of inconsistent statements has been allowed in the case of d*ing declarations. EVIDEN/E O) T>E +OOD />ARA/TER O) A WITNESS 2vidence of the good character of a witness is not admissible until such character has been impeached. 4he law presumes ever* person to be reputedl* truthful until evidence shall have been produced to the contrar*. /!aract r 0i# nc a#missi9$ H xc -tions& J not g n ra$$y

b? :n )ivil )asesC
2vidence of the moral character of a part* in a civil case is admissible onl* when pertinent to the issue of character involved in the case. ADMISSION An act7 declaration or omission of a part* as to a relevant fact. /ON)ESSION 4he declaration of an accused acknowledging his guilt of the offense charged7 or of an* offense necessaril* included therein. :t is a statement b* the accused that he engaged in conduct which constitutes a crime.

:t is a voluntar* acknowledgment made b* a part* of the e1istence of the truth of certain facts which are inconsistent with his claims in an action. Broader than confession.

$a* be implied like admission b* silence. $a* be %udicial or e1tra%udicial. $a* be adoptive7 which occurs when a person manifests his assent to the statements of another person.

Specific t*pe of admission which refers onl* to an acknowledgment of guilt Cannot be implied7 but should be a direct and positive acknowledgment of guilt. $a* be %udicial or e1tra%udicial.

a? :n )riminal )asesC
!? 4he accused ma* prove his good moral character which is pertinent to the moral trait involved in the offense charged. "? Bnless in rebuttal7 the prosecution ma* not prove his bad moral character which is pertinent it to the moral trait involved in the offense charged. #ote that in criminal cases7 the prosecution goes first. 0ence7 it cannot present evidence on the bad moral character of the accused on its evidence in chief. 4he good or bad moral character of the offended part* ma* be proved if it tends to establish in an* reasonable degree the probabilit* or improbabilit* of the offense charged.

RES INTER ALIOS A/TA R(LE Res inter alios acta alteri nocere debt means that Fthings done to strangers ought not to in%ure those who are not parties to themN :t has two branches7 namel*E a? 4he rule that the rights of a part* cannot be pre%udiced b* an act7 declaration7 or omission of another9 and b? 4he 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.

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4he rule has reference to e1tra%udicial declarations. 0ence7 statements made in open court b* a witness implicating persons aside from his own %udicial admissions are admissible as declarations from one who has personal knowledge of the facts testified to. 21ceptions to the first branch of the ruleE a? Admission b* a co-partner or agent (Sec. 29, *u e 13.); b? Admission b* a co-conspirator (Sec. 3., *u e 13.); and c? Admission b* privies (Sec. 31, *u e 13.). ADMISSION B' A ,ART' 4he act7 declaration or omission of a part* as to a relevant fact ma* be given in evidence against him. ADMISSION B' A T>IRD ,ART' 4he rights of a part* cannot be pre%udiced b* an act7 declaration7 or omission of another, e#ce!t "s herein"fter !ro6i'e'. ADMISSION B' A /O<,ARTNER OR A+ENT 4he act or declaration of a partner or agent of the part* within the scope of his authorit* and during the e1istence of the partnership or agenc*7 ma* be given in evidence against such part* after the partnership or agenc* is shown b* evidence other than such act or declaration. 4he same rule applies to the act or declaration of a %oint owner7 %oint debtor7 or other person %ointl* interested with the part*. 5or the admission of a co-partner or agent to be admissible7 the following re,uisites must concurE a? 4he declaration or act of the partner and agent must have been made or done within the scope of his authorit*9 b? 4he declaration or act of the partner and agent must have been made or done during the e1istence of the partnership or agenc*7 and the person making the declaration still a partner or an agent9 and c? 4he e1istence of the partnership or agenc* is proven b* evidence other than the declaration or act of the partner and agent. ADMISSION B' A /ONS,IRATOR Conspirac* e1ists when two or more persons come to an agreement concerning the commission of a felon* and decide to commit it. 3nce conspirac* is proven7 the act of one is the act of all. 4he statement therefore of one ma* be

admitted against the other co-conspirators as an e1ception to the rule of res inter " ios "ct". 5or the e1ception to appl*7 the following re,uisites must concurE !? 4he declaration or act be made or done during the e1istence of the conspirac*9 "? 4he declaration or act must relate to the conspirac*9 and &? 4he conspirac* must be shown b* evidence other than the declaration or act. ADMISSION B' ,RIVIES rivit* means mutual succession of relationship to the same rights of propert*. rivies are those who have mutual or successive relationship to the same right of propert* or sub%ect matter7 such as personal representatives7 heirs7 devisees7 legatees7 assigns7 voluntar* grantees or %udgment creditors or purchasers from them with notice of the facts. 4hree e1ceptions are recogni@ed to the rule that declarations of the transferor7 made subse,uent to the transfer7 are inadmissibleE !? <here the declarations are made in the presence of the transferee7 and he ac,uiesces in the statements7 or asserts no rights where he ought to speak9 "? <here there has been a prima facie case of fraud established7 as where the thing after the sale or transfer7 remains with the seller or transferor9 &? <here the evidence establishes a continuing conspirac* to defraud7 which conspirac* e1ists between the vendor and the vendee. ADMISSION B' SILEN/E An act or declaration made in the presence and within the hearing or observation of a part* who does or sa*s nothing when the act or declaration is such as naturall* to call for action or comment if not true7 and when proper and possible for him to do so7 ma* be given in evidence against him. 4he common sense of mankind is e1pressed in the popular phrase7 silence gives consent which is but another form of e1pressing the ma1im of the law7 (ui t"cet cosentire 6i'etur. Before the silence of a part* can be taken as an admission of what is said7 the following re,uisites must concurE a? 0earing and understanding of the statement b* the part*9

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b? 3pportunit* and necessit* of den*ing the statements9 c? Statement must refer to a matter affecting his right9 d? 5acts were within the knowledge of the part*9 and e? 5acts admitted or the inference to be drawn from his silence would be material to the issue. /ON)ESSIONS 4he declaration of an accused acknowledging his guilt of the offense charged7 or of an* offense necessaril* included therein7 ma* be given in evidence against him. An* confession or admission obtained in violation of this or Section !+ hereof shall be inadmissible in evidence against him (Sec. 12, Art. III, Constitution). Confession is an acknowledgment in e1press words7 b* the accused in a criminal case7 of the truth of the offense charged7 or of some essential parts thereof. 4o be valid7 confessions must be voluntaril* and freel* made. 21ceptions to the rule that confessions of an accused ma* be given in evidence against him and incompetent against his co-accusedE a? <hen several accused are tried together7 confession made b* one of them during the trial implicating the others is evidence against the latter. b? <hen one of the defendants is discharged from the information and testifies as a witness for the prosecution7 the confession made in the course of his testimon* is admissible against his codefendants7 if corroborated b* indisputable proof. c? :f a defendant after having been apprised of the confession of his codefendant ratifies or confirms said confession7 the same is admissible against him. d? :nterlocking confessions -- <here several e1tra-%udicial confession had been made b* several persons charged with an offense and there could have been no collusion with reference to said several confessions7 the facts that the statements therein are in all material respects identical7 is confirmator* of the confession of the co-defendant7 and is admissible against his other codefendants.

e? A statement made b* one defendant after his arrest7 in the presence of this co-defendant7 confessing his guilt and implicating his co-defendant who failed to contradict or den* it7 is admissible against his co-defendant. f? <hen the confession is of a conspirator and made after conspirac* in furtherance of its ob%ect7 the same is admissible against his co-conspirator9 and g? 4he confession of one conspirator made after the termination of a conspirac* is admissible against his coconspirator if made in his presence and assented to b* him7 or admitted its truth or failed to contradict or den* it. SIMILAR A/TS AS EVIDEN/E 2vidence that one did or did not do a certain thing at one time is not admissible to prove that he did or did not do the same or a similar thing at another time9 but it ma* be received to prove a specific intent or knowledge7 identit*7 plan7 s*stem7 scheme7 habit7 custom or usage7 and the like. E6i'ence of co "ter" offenses $ust not %e recei6e' "s su%st"nti6e e6i'ence of the offenses on tri" . >EARSA' R(LE A witness can testif* onl* to those facts which he knows of his personal knowledge9 that is7 which are derived from his own perception7 e1cept as otherwise provided in these rules. 8enerall*7 hearsa* evidence is inadmissible because the person who testifies does so based on matters not of his personal knowledge but based on the knowledge of another who is not in court and cannot therefore7 b cross-e1amined. 4he one in courts is the person who merel* repeats matters witnessed personall* b* another. 4his t*pe o evidence is inadmissible because of its inherent unreliabilit*. 0earsa* evidence ma* be in writing. 5or instance7 an affidavit is hearsa* unless the affiant affirms the same in court and is sub%ect to cross-e1amination. A hearsa* testimon* involves an outsidedeclarant and an in-court witness. :t is the outside declarant who sa*s something based on what he has perceived. 0is statement is heard b* someone who is the one testifies in court as to what he heard.

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:f the witness offers the statement of the outside declarant to prove the truth of such statement >the one which he heard? the testimon* of the witness is hearsa*. :f itCs offered merel* to prove that he heard the statement without reference to its truth or falsit*7 his testimon* is not hearsa*. :f what he heard is relevant to an issue in the case7 it will fall under the categor* of in'e!en'ent re e6"nt st"te$ents which means statements which are relevant as to their tenor or to the fact that the* were uttered and not as to whether the* are true or false. MEANIN+ O) >EARSA' :t also means the evidence not of what the witness himself knows but of what he has heard from others. REASON )OR E*/L(SION O) >EARSA'

EVIDEN/E 0earsa* evidence is inadmissible according to the general rule. 4he real basis for the e1clusion is the fact that hearsa* testimon* is not sub%ect to the tests which can ordinaril* be applied for the ascertainment of the truth of testimon*7 since the declarant is not present and available for cross-e1amination. :n criminal cases the admission of hearsa* evidence would be a violation of the constitutional provision that the accused shall en%o* the right of being confronted with the witnesses testif*ing against him and to crosse1amine them. $oreover7 the court is without the opportunit* to test the credibilit* of hearsa* statements b* observing the demeanor of the person who made them. E*/E,TIONS TO T>E >EARSA' R(LE >D2;5L2C4LD <:-CA ? .? Declaration against interest9 !D? <aiver9 !!? :ndependentl* relevant evidence9 !"? Commercial lists and the like9 !&? Act or declaration about pedigree9 and !'? art of res 3est"e.

!? D*ing declaration;
"? 2ntries in the course of business9 &? ;erbal acts9 '? 5amil* reputation or tradition regarding pedigree9 (? Learned treatises9 )? 2ntries in official records9 +? Common reputation9 -? 4estimon* or deposition at a former proceeding9 4he statements from which the facts in issue ma* be inferred ma* be testified to b* witnesses without violating the hearsa* rule. 3f this kind areE Statements of a personE a? showing his state of mind7 that is his mental condition7 knowledge7 belief7 intention7 ill-will and other emotion9 b? showing his ph*sical condition7 as illness and the like9 c? from which an inference ma* be made as to the state of mind of another7 that is7 knowledge7 belief7 motive7 good or bad faith7 etc. of the latter9 d? which ma* identif* the date7 place7 and person in ,uestion9 and e? showing the lack of credibilit* of a witness. D'IN+ DE/LARATION 4he declaration of a d*ing person7 made under the consciousness of an impending death7 ma*

be received in an* case wherein his death is the sub%ect of in,uir*7 as evidence of the cause and surrounding circumstances of such death. R2AB:S:42SE !? 4hat death is imminent and the declarant is conscious of that fact9 "? 4hat the declaration refers to the cause and surrounding circumstances of such death9 &? 4hat the declaration relates to facts which the victim is competent to testif* to9 and '? 4hat the declaration is offered in a case wherein the declarantCs death is the sub%ect of the in,uir*. 4he most significant element is that the declaration must have been conscious of his impending death. :t is this consciousness which is assumed to be the compelling motive to tell the truth. An* statement he makes not related to the circumstances of his death is inadmissible as a d*ing declaration.

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4he d*ing declaration is admissible in A#H CAS2 provided the sub%ect of in,uir* in that case is the death of the declarant. :t is re,uired that the declarant should die. :f he lives7 he ma* testif* personall* based on his personal knowledge. :f he is unable to testif*7 his declaration could be admitted as a statement made b* a person immediatel* subse,uent to a startling occurrence (cou ' %e consi'ere' !"rt of res 3est"e). DE/LARATION A+AINST INTEREST 4he declaration made b* a person deceased7 or unable to testif*7 against the interest of the declarant7 if the fact asserted in the declaration was at the time it was made so far contrar* to declarantTs own interest7 that a reasonable man in his position would not have made the declaration unless he believed it to be true7 ma* be received in evidence against himself or his successors in interest and against third persons. R E%isit s :or t! xc -tion to a--$yC a? 4hat the declarant is dead or unable to testif*9 b? 4hat it relates to a fact against the interest of the declarant9 c? 4hat at the time he made said declaration the declarant was aware that the same was contrar* to his aforesaid interest9 and d? 4hat the declarant had no motive to falsif* and believed such declaration to be true. ADMISSION B' ,RIVIES 3ne of & e1ceptions to res inter alios acta 2vidence against the successor in interest of the admitter Admitter need not be dead or unable to testif* Relates to title to propert* Admission need not be against the admitterLs interest DE/LARATION A+AINST INTEREST 21ception to hearsa* 2vidence against even the declarant7 his successor in interest7 or &rd persons Declarant is dead or unable to testif* Relates to an* interest Declaration must be against the interest of the declarant

4he word FpedigreeF includes relationship7 famil* genealog*7 birth7 marriage7 death7 the dates when and the places where these facts occurred7 and the names of the relatives. :t embraces also facts of famil* histor* intimatel* connected with pedigree. edigree is the histor* of famil* descent which is transmitted from one generation to another b* both oral and written declarations and b* traditions. R E%isit s :or a--$ica9i$ityC a? Declarant is dead or unable to testif*9 b? #ecessit* that pedigree be in issue9 c? Declarant must be a relative of the person whose pedigree is in ,uestion9 d? Declaration must be made before the controvers* occurred9 and e? 4he relationship between the declarant and the person whose pedigree is in ,uestion must be shown b* evidence other than such act or declaration. )AMIL' RE,(TATION OR TRADITION RE+ARDIN+ ,EDI+REE 2ntries in famil* bibles or other famil* books or charts7 engravings on rings7 famil* portraits and the like7 ma* be received as evidence of pedigree. R E%isit s :or t! xc -tion to a--$yC a? 4here is a controvers* in respect to the pedigree of an* members of a famil*9 b? 4he reputation or tradition of the pedigree of the person concerned e1isted ante litem motam or pervious to the controvers*9 and c? 4he witness testif*ing to the reputation or tradition regarding the pedigree of the person concerned must be a member of the famil* of said person7 either b* consanguinit* or affinit*. /OMMON RE,(TATION R E%isit s :or t! a#missi9i$ity o: t! xc -tionC a? 4he facts must be of public or general interest and more than thirt* *ears old9 b? 4he common reputation must have been ancient >more than &D *ears old or one generation old?9 c? 4he reputation must have been one formed among the class of persons who

A/T OR DE/LARATION ABO(T ,EDI+REE

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were in a position to have some sources of information and to contribute intelligentl* to the formation of the opinion9 and 4he common reputation must have been e1isting previous to the controvers*. Re,uisites for the admissibilit* of common reputation respecting marriageE a? 4he common reputation must have been formed previous to the controvers*9 and b? 4he common reputation must have been formed in the communit* or among the class of persons who are in a position to have sources of information and to contribute intelligentl* to the formation of the opinion. Re,uisites for the admissibilit* of common reputation respecting moral characterE a? 4hat it is the reputation in the place where the person in ,uestion is best known9 b? 4hat it was formed "nte ite$ $ot"$. Character refers to the inherent ,ualities of the person7 rather than to an* opinion that ma* be formed or e1pressed of him b* others. Reputation applies to the opinion which others ma* have formed and e1pressed of his character. $onuments and inscriptions in public places ma* be received as evidence of common reputation. ,ART O) T>E RES +ESTAE Statements made b* a person while a startling occurrence is taking place or immediatel* prior or subse,uent thereto with respect to the circumstances thereof7 ma* be given in evidence as part of the res gestae. So7 also7 statements accompan*ing an e,uivocal act material to the issue7 and giving it a legal significance7 ma* be received as part of the res gestae. Res gestae is from the Latin meaning Mthings doneN. As applied to a crime7 res gestae means the complete criminal transaction from its beginning or starting point in the act of the accused until the end is reached. 4he general classes of declarations to which the term res gestae is usuall* applied are >a? spontaneous statements7 and >b? verbal acts. S,ONTANEO(S VERBAL A/TS

STATEMENTS Statement or e1clamation made immediatel* after some e1citing occasion b* a participant or spectator and asserting the circumstances of that occasion as it is observed b* him.

4he res gestae is the startling occurrence Spontaneous e1clamation ma* be prior to7 simultaneous with7 or subse,uent to the startling occurrence. *e"son for "'$issi%i it+0 4rustworthiness and necessit*Sbecause statements are made instinctivel*7 and because said natural and spontaneous utterances are more convincing than the testimon* of the same person on the stand. *e(uisites for "'$issi%i it+0 a? 4here must be a startling occurrence9 b? 4he statement must relate to the circumstances of the startling occurrence9 c? 4he statement must be spontaneous.

Btterances which accompan* some act or conduct to which it is desired to give a legal effect. <hen such act has intrinsicall* no definite legal significance7 or onl* an ambiguous one7 its legal purport or tenor ma* be ascertained b* considering the words accompan*ing it7 and these utterances thus enter merel* as verbal part of the act. 4he res gestae is the e,uivocal act ;erbal act must be contemporaneous with or must accompan* the e,uivocal act to be admissible. *e"son for "'$issi%i it+0 4he motive7 character and ob%ect of an act are fre,uentl* indicated b* what was said b* the person engaged in the act.

*e(uisites for "'$issi%i it+0 a? Act or occurrence characteri@ed must be e,uivocal9 b? ;erbal acts must characteri@e or e1plain the e,uivocal act9 c? 2,uivocal act must be relevant to the issue9 d? ;erbal acts must be contemporaneou s with e,uivocal act.

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ENTRIES IN T>E /O(RSE O) B(SINESS R E%isit s :or a#missi9i$ityC a? 2ntries must have been made at or near the time of the transaction to which the* refer9 b? 2ntrant must have been in a position to know the facts stated in the entries9 c? 2ntries must have been made b* entrant in his professional capacit* or in the performance of his dut*9 d? 2ntries were made in the ordinar* or regular course of business of duties9 e? 2ntrant must be deceased or unable to testif*. ENTRIES IN O))I/IAL RE/ORDS 2ntries in official records made in the performance of his dut* b* a public officer of the hilippines7 or b* a person in the performance of a dut* speciall* en%oined b* law7 are prima facie evidence of the facts therein stated. /OMMER/IAL LISTS AND T>E LI8E 2vidence of statements of matters of interest7 to persons engaged in an occupation contained in a list7 register7 periodical7 or other published compilation is admissible as tending to prove the truth of an* relevant matter so stated if that compilation is published for use b* persons engaged in that occupation and is generall* used and relied upon b* them therein. LEARNED TREATIES A published treatise7 periodical or pamphlet on a sub%ect of histor*7 law7 science or art is admissible as tending to prove the truth of a matter stated therein if the court takes %udicial notice7 or a witness e1pert in the sub%ect testifies that the writer of the statement in the treatise7 periodical or pamphlet is recogni@ed in his profession or calling as e1pert in the sub%ect. TESTIMON' OR DE,OSITION AT A )ORMER TRIAL 4he testimon* or deposition of a witness deceased or unable to testif*7 given in a former case or proceeding7 %udicial or administrative7

involving the same parties and sub%ect matter7 ma* be given in evidence against the adverse part* who had the opportunit* to cross-e1amine him. :f the witness has been sub%ected to crosse1amination in a former trial7 the rule is satisfied7 and the former testimon* ma* now be used. O,INION R(LE 82#2RAL RBL2E the opinion of a witness is not admissible. 4he witness must testif* to facts within their knowledge and ma* not state their opinion7 even on their cross-e1amination. 2RC2 4:3#SE O,INION O) E*,ERT WITNESS < 3n a matter re,uiring special knowledge7 skill7 e1perience or training which he possesses7 that is7 when he is an e1pert thereon ma* be received in evidence. E#!ert testi$on+ is not "'$issi% e "s to " $"tter not in issue. "? O,INION O) ORDINAR' WITNESSESE a? 4he identit* of a person about whom he has ade,uate knowledge9 b? A handwriting of a person with which he has sufficient familiarit*9 c? 4he mental sanit* or a person with whom he is sufficientl* ac,uainted9 and d? 4he witnessC impression of the emotion7 behavior7 condition or appearance of a person. *e"son0 it is for the court to for$ "n o!inion concernin3 the f"cts in !roof of )hich e6i'ence is offere'. O,INION O) E*,ERT WITNESS :t is sufficient that the following factors are presentE a? 4raining and education9 b? articular7 first-hand familiarit* with the facts of the case9 and c? resentation of the authorities or standards upon which his opinion is based. Before one ma* be allowed to testif* as e1pert witness7 his ,ualification must first established b* the part* presenting him7 i.e.7 must be shown to possess the special skill knowledge relevant to the ,uestion to which an be he or he

!?

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is to e1press an opinion. Common sub%ects of e1pert testimon*E handwriting7 t*pewritten documents7 fingerprints7 ballistics7 medicine7 value of properties and services. />ARA/TER EVIDEN/E Character evidence7 as a general rule7 is not admissible in evidence because the evidence of a personCs character does not prove that such person acted conformit* with such character or trait in a particular occasion. 21ceptionsE a? :n criminal cases7 the prosecution ma* not at the outset prove the bad moral character of the accused which is pertinent to the moral trait involved in the offense charged. :f the accused7 however7 in his defense attempts to prove his good moral character then the prosecution can introduce evidence of such bad moral character at the rebuttal stage. b? Also in criminal case7 the good or bad moral character of the offended part* ma* alwa*s be proved b* either part* as long as such evidence tends to establish the probabilit* or improbabilit* of the offense charged. c? :n civil cases7 the moral character of either part* thereto cannot be proved unless it is pertinent to the issue of character involved in the case. d? :n both civil and criminal cases7 the bad moral character of a witness ma* alwa*s be proved b* either part* but not evidence of his good character7 unless it has been impeached. <ith respect to the nature or substance of the character evidence which ma* be admissible7 the rules re,uire thatE a? <ith respect to the accused7 such character evidence must be pertinent to the moral trait involved in the offense charged9 b? <ith respect to the offended person7 it is sufficient that such character evidence ma* establish in an* reasonable degree the probabilit* or improbabilit* of the offense charged7 as in prosecutions for rape or consented abduction wherein the victimLs chastit* ma* be ,uestioned7 and in prosecution for homicide wherein the pugnacious7 ,uarrelsome or troubleseeking character of the victim is a proper sub%ect of in,uir*9 and c? <ith respect to witnesses7 such character evidence must refer to his general reputation for truth7 honest* or integrit*7 that is7 as affecting his credibilit*.

R(LE ON E*AMINATION O) A />ILD WITNESS ;A&M& NO& 002<05<S/= A,,LI/ABILIT' O) T>E R(LE Bnless otherwise provided7 this Rule shall govern the e1amination of child witnesses who are victims of crime7 accused of a crime7 and witnesses to crime. :t shall appl* in all criminal proceedings and non-criminal proceedings involving child witnesses. MEANIN+ O) J/>ILD WITNESSN An* person who at the time of giving testimon* is below the age of !- *ears. :n child abuse cases7 a child includes one over !- *ears but is found b* the court as unable to full* take care of himself or protect himself from abuse7 neglect7 cruelt*7 e1ploitation7 or discrimination because of a ph*sical or mental disabilit* or condition. /OM,ETEN/' O) A />ILD WITNESS 2ver* child is presumed ,ualified to be a witness. 0owever7 the court shall conduct a competenc* e1amination of a child (on + %+ the &u'3e, or court) 7 motu propio or on motion of a part*7 when it finds that substantial doubt e1ists regarding the stabilit* of the child to perceive7 remember7 communicate7 distinguish truth from falsehood7 or appreciate the dut* to tell the truth in court. 4he court has the dut* of continuousl* assessing the competence of the child throughout his testimon*. E*AMINATION O) A />ILD WITNESS 4he e1amination of a child witness presented in a hearing or an* proceeding shall be done in open court. Bnless the witness is incapacitated to speak7 or the ,uestion calls for a different mode of answer7 the answers of the witness shall be given orall*. 4he part* who presents a child witness or the guardian ad litem of such child witness ma*7 however7 move the court to allow him to testif* in the manner provided in this Rule. LIVE<LIN8 TV TESTIMON' O) A />ILD WITNESS ;SE/& 23= 4he prosecutor7 counsel or the guardian ad litem ma* appl* for an order that the testimon* of the child be taken in a room outside the courtroom

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and be televised to the courtroom b* live-link television. 4he court ma* order that the testimon* of the child be taken b* live-link television if there is a substantial likelihood that the child would suffer trauma from testif*ing in the presence of the accused7 his counsel or the prosecutor as the case ma* be. 4he trauma must be of a kind which would impair the completeness or truthfulness of the testimon* of the child. 4he child shall therefore testif* in a room separate from the courtroom. VIDEOTA,ED DE,OSITION O) A />ILD WITNESS 4he prosecutor7 counsel7 or guardian ad litem ma* appl* for an order that a deposition be taken of the testimon* of the child and that it be recorded and preserved on videotape. 4he %udge shall preside at the videotaped deposition of a child. 3b%ections to deposition testimon* or evidence and the grounds for the ob%ection shall be stated and shall rule upon at the time of the taking of the deposition. 4he videotaped deposition shall be preserved and stenographicall* recorded. 4he videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. 4he videotaped deposition and stenographic notes shall be sub%ect to a protective order. :f7 at the time of trial7 the court finds that the child is unable to testif*7 the court ma* admit into evidence the videotaped deposition of the child in lieu of his testimon* at the trial. After the original videotaping but before or during trial7 an* part* ma* file an* motion for additional videotaping on the ground of newl* discovered evidence. >EARSA' E*/E,TION IN />ILD AB(SE /ASES A statement made b* a child describing an* act or attempted act of child abuse7 not otherwise admissible under the hearsa* rule7 ma* be admitted in evidence in an* criminal or noncriminal proceeding sub%ect to the following rulesE a? Before such hearsa* statement ma* be admitted7 its proponent shall make known

to the adverse part* the intention to offer such statement and its particulars to provide him a fair opportunit* to ob%ect. :f the child is available7 the court shall7 upon motion of the adverse part*7 re,uire the child to be present at the presentation of the hearsa* statement for crosse1amination b* the adverse part*. <hen the child is unavailable7 the fact of such circumstance must be proved b* the proponent. b? :n ruling on the admissibilit* of such hearsa* statement7 the court shall consider the time7 content and circumstances thereof which provide sufficient indicia of reliabilit*. 4he child witness shall be considered unavailable under the following situationsE a? :s deceased7 suffers from ph*sical infirmit*7 lack of memor*7 mental illness7 or will be e1posed to sever ps*chological in%ur*9 or b? :s absent from the hearing and the proponent of his statement has been unable to procure his attendance b* process or other reasonable mean. <hen the child witness is unavailable7 his hearsa* testimon* shall be admitted onl* if corroborated b* other admissible evidence. SE*(AL AB(SE S>IELD R(LE

a? 4he

following evidence is #34 AD$:SS:BL2 in an* criminal proceeding involving alleged child se1ual abuseE a. 2vidence offered to prove that the alleged victim engaged in other se1ual behavior9 and b. 2vidence offered to prove the se1ual pre-disposition of the alleged victim. b? 2RC2 4:3#E 2vidence of specific instances of se1ual behavior b* the alleged victim to prove that a person other than the accused was the source of semen7 in%ur*7 or other ph*sical evidence shall be admissible.

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,ROTE/TIVE ORDERS rotection of privac* and safet* - An* videotape or audiotape of a child that is part of the court record shall be under a protective order. 4he court ma*7 motu propio or on motion of an* part*7 the child7 his parents7 legal guardian7 or the guardian ad litem7 issue additional orders to protect the privac* of the child.

overruled7 it shall not be necessar* to repeat the ob%ection7 it being sufficient for the adverse part* to record his continuing ob%ection to such class of ,uestions. R(LIN+ 4he ruling of the court must be given immediatel* after the ob%ection is made7 unless the court desires to take a reasonable time to inform itself on the ,uestion presented9 but the ruling shall alwa*s be made during the trial and at such time as will give the part* against whom it is made an opportunit* to meet the situation presented b* the ruling. STRI8IN+ O(T O) AN ANSWER

O))ER AND OB.E/TION ;R(LE 112= O))ER O) EVIDEN/E

4he court shall consider no evidence which has not been formall* offered. 4he purpose for which the evidence is offered must be specified. W>EN TO MA8E AN O))ER

testimon* of a witness - the offer must be


made at the time the witness is called to testif*. Documentar* and ob%ect evidence shall be offered after the presentation of a part*Ts testimonial evidence. Such offer shall be done orall* unless allowed b* the court to be done in writing. OB.E/TION 3b%ection to evidence offered orall* must be made immediatel* after the offer is made. 3b%ection to a ,uestion propounded in the course of the oral e1amination of a witness shall be made as soon as the grounds therefor shall become reasonabl* apparent. An offer of evidence in writing shall be ob%ected to within three >&? da*s after notice of the offer unless a different period is allowed b* the court. :n an* case7 the grounds for the ob%ections must be specified. Groun's for o%&ection0 Ce"rs"+; Ar3u$ent"ti6e; 5e"'in3; ,is e"'in3; Inco$!etent; Irre e6"nt; Best e6i'ence ru e; P"ro e e6i'ence ru e; ?uestion h"s no %"sis RE,ETITION O) AN OB.E/TION <hen it becomes reasonabl* apparent in the course of the e1amination of a witness that the ,uestions being propounded are of the same class as those to which ob%ection has been made7 whether such ob%ection was sustained or

Should a witness answer the ,uestion before the adverse part* had the opportunit* to voice full* its ob%ection to the same7 and such ob%ection is found to be meritorious7 the court shall sustain the ob%ection and order the answer given to be stricken off the record. 3n proper motion7 the court ma* also order the striking out of answers which are incompetent7 irrelevant7 or otherwise improper. TENDER O) E*/L(DED EVIDEN/E :f documents or things offered in evidence are e1cluded b* the court7 the offeror ma* have the same attached to or made part of the record. :f the evidence e1cluded is oral7 the offeror ma* state for the record the name and other personal circumstances of the witness and the substance of the proposed testimon*. Not C S%-r m /o%rt R%$ings D c m9 r 2010 inc$%# # as o:

REVISED R(LES ON S(MMAR' ,RO/ED(RE (,e1C, ,1C "n' ,C1C) /ASES /OVERED B' T>E R(LE 1= /IVIL /ASES a. All cases of forcible entr* and unlawful detainer irrespective of the amount of damages or unpaid rentals sought to be recovered. b. All other cases7 e1cept probate proceedings where the total amount of the plaintiffLs claim does not

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e1ceed !DD7DDD outside7 or "DD7DDD in $etro $anila7 e1clusive of interest and costs. 2= /RIMINAL /ASES a. ;iolation of Bouncing Checks Law >B ""?9 b. ;iolation of traffic laws7 rules and regulations9 c. ;iolations of rental laws9 d. All other criminal cases where the penalt* prescribed b* law for the offense charged is imprisonment not e1ceeding ) months or a fine not e1ceeding !7DDD or both7 irrespective of other imposable penalties7 accessor* or otherwise7 or of the civil liabilit* arising therefrom9 and in offenses involving damages to propert* through criminal negligence7 where the imposable fine does not e1ceed !7DDD. e. :n offenses involving damage to propert* through criminal negligence7 where the imposable fine does not e1ceed !D7DDD.DD #oteE 4he Rule shall not appl* in a civil case where the cause of action is pleaded with another cause of action sub%ect to the ordinar* procedure7 nor to criminal case where the offense charged is necessar* related to another criminal case sub%ect to the ordinar* procedure. E))E/T O) )AIL(RE TO ANSWER Should the defendant fail to answer the complaint within !D da*s from service of summons7 the court shall $34B R3 :3 or 3# $34:3# of the plaintiff7 shall render %udgment as ma* be warranted b* the facts alleged in the complaint and limited to what is pra*ed for therein.

4he failure of the plaintiff to appear in the

preliminar* conference shall be cause for the dismissal of his complaint. 4he defendant who appears in the absence of the plaintiff shall be entitled to %udgment on his counterclaim. All cross-claims shall be dismissed. :f a sole defendant shall fail to appear7 the plaintiff shall be entitled to %udgment as warranted b* the allegations in the complaint and limited to the reliefs pra*ed for therein. 4he Rule shall not appl* where one of two or more defendants sued under a common cause of action who had pleaded a common defenses shall appear at the preliminar* conference.

8ATAR(N+AN+ ,AMBARAN+A' (&ecs. *(( 522, 7:))

S(B.E/T MATTER )OR AMI/ABLE SETTLEMENT 4he lupon of each baranga* shall have authorit* to bring together the parties actuall* residing in the same municipalit* or cit* for amicable settlement of all disputes 2RC2 4E !? <here one part* is the government or an* subdivision or instrumentalit* thereof9 "? <here one part* is a public officer or emplo*ee7 and the dispute relates to the performance of his official functions9 &? 3ffenses punishable b* imprisonment e1ceeding one >!? *ear or a fine e1ceeding (7DDD9 '? 3ffenses where there is no private offended part*9 (? <here the dispute involves real properties located in different cities or municipalities unless the parties thereto agree to submit their differences to amicable settlement b* an appropriate lupon9 )? Disputes involving parties who actuall* reside in baranga*s of different cities or municipalities7 e1cept where such baranga* units ad%oin each other and the parties thereto agree to submit their differences to amicable settlement b* an appropriate lupon9

4his

is without pre%udice to the applicabilit* of Sec. 8, *u e 1< if there are two or more defendants. AND

,RELIMINAR' /ON)EREN/E A,,EARAN/ES O) ,ARTIES

a preliminar* conference shall be held not later than &D da*s after the last answer is filed. 4he rules on pre-trial in ordinar* cases shall be applicable to the preliminar* conference unless inconsistent with the provisions of the Rule.

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+? Such other classes of disputes which the resident ma* determine in the interest of %ustice or upon the recommendation of the Secretar* of /ustice9 -? An* complaint b* or against corporations7 partnerships7 or %uridical entities. 4he reason is that onl* individuals shall be parties to baranga* conciliation proceedings either as complainants or respondents9 .? Disputes where urgent legal action is necessar* to prevent in%ustice from being committed or further continued7 speciall* the followingE a? A criminal case where the accused is under police custod* or detention9 b? A petition for habeas corpus b* a person illegall* detained or deprived of his libert* or one acting in his behalf9 c? Actions coupled with provisional remedies7 such as preliminar* in%unction7 attachment7 replevin and support pendente litem9 d? <here the action ma* be barred b* the statute of limitations9 !D? Labor disputes or controversies arising from emplo*er-emplo*ee relationship. !!? <here the dispute arises from the Comprehensive Agrarian Reform Law9 !"? Actions to annul %udgment upon a compromise which can be filed directl* in court. 4he court in which non-criminal cases not falling within the authorit* of the lupon under the Code are filed ma*7 at an* time before trial7 motu propio refer the case to the lupon concerned for amicable settlement. VEN(E

%"r"n3"+; other)ise, the s"$e sh" %e 'ee$e' )"i6e'. An+ e3" (uestion )hich $"+ confront the !unon3 %"r"n3"+ in reso 6in3 o%&ections to 6enue herein referre' to $"+ %e su%$itte' to the Secret"r+ of 2ustice, or his 'u + 'esi3n"te' re!resent"ti6e, )hose ru in3 thereon sh" %e %in'in3. W>EN ,ARTIES MA' DIRE/TL' +O TO /O(RT !? <here the accused is under detention9 "? <here a person has otherwise been deprived or personal libert* calling for habeas corpus proceedings9 &? <here actions are coupled with provisional remedies such as preliminar* in%unction7 attachment7 deliver* of personal propert*7 and support pendente lite9 and '? <here the action ma* otherwise be barred b* the statute of limitations. E*E/(TION 4he amicable settlement or arbitration award ma* be enforced b* e1ecution b* the lupon within si1 >)? months from the date of the settlement. After the lapse of such time7 the settlement ma* be enforced b* action in the appropriate cit* or municipal court. RE,(DIATION An* part* to the dispute ma*7 within ten >!D? da*s from the date of the settlement7 repudiate the same b* filing with the lupon chairman a statement to that effect sworn to before him7 where the consent is vitiated b* fraud7 violence7 or intimidation. Such repudiation shall be sufficient basis for the issuance of the certification for filing a complaint before the court.

!? Disputes between persons actuall* residing in


the same baranga*9 "? 4hose involving actual residents of different baranga*s within the same cit* or municipalit*9 &? All disputes involving real propert* or an* interest therein where the real propert* or the larger portion thereof is situated9 '? 4hose arising at the workplace where the contending parties are emplo*ed or at the institution where such parties are enrolled for stud*7 where such workplace or institution is located. F%&ections to 6enue sh" %e r"ise' in the $e'i"tion !rocee'in3s %efore the !unon3

R(LE O) ,RO/ED(RE )OR SMALL /LAIMS /ASES ;AM No& 06<6<5<S/? as am n# #=

S/O,E AND A,,LI/ABILIT' O) T>E R(LE 4his Rule shall govern the procedure in actions before theE a? $etropolitan 4rial Courts9 b? $unicipal 4rial Courts in Cities9

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c? $unicipal 4rial Courts9 and d? $unicipal Circuit 4rial Courts

for pa*ment of mone* where the value of the


claim D32S #34 2RC22D e1clusive of interest and costs. !DD7DDD.DD

&? two >"? dul* certified photocopies of the actionable document6s sub%ect of the claim9 '? the affidavits of witnesses and other evidence to support the claim. -o e6i'ence sh" %e " o)e' 'urin3 the he"rin3 )hich )"s not "tt"che' to or su%$itte' to3ether )ith the C "i$, un ess 3oo' c"use is sho)n for the "'$ission of "''ition" e6i'ence. -o for$" ! e"'in3, other th"n the St"te$ent of C "i$ is necess"r+ to initi"te " s$" c "i$s "ction. RES,ONSE 4he defendant shall file with the court and serve on the plaintiff a dul* accomplished and verified Response within a non-e1tendible period of ten >!D? da*s from receipt of summons. 4he response shall be accompanied b* certified photocopies of documents7 as well as affidavits of witnesses and other evidence in support thereof. #o evidence shall be allowed during the hearing which was not attached to or submitted together with the Response7 unless good cause is shown for the admission of additional evidence. 1he 3roun's for the 'is$iss" of the c "i$, un'er *u e 1; of the *u es of Court, shou ' %e ! e"'e'. E))E/T O) )AIL(RE TO )ILE RES,ONSE Should the defendant fail to file his Response within the re,uired period7 and likewise fail to appear at the date set for hearing7 the court shall render %udgment on the same da*7 as ma* be warranted b* the facts. Should the defendant fail to file his Response within the re,uired period but appears at the date set for hearing7 the court shall ascertain what defense he has to offer and proceed to hear7 mediate or ad%udicate the case on the same da* as if a Response has been filed. ,RO>IBITED ,LEADIN+S AND MOTIONS g? etition for certiorari7 mandamus7 or prohibition against an* interlocutor* order issued b* the court9 h? $otion to declare the defendant in default9 i? Dilator* motions for postponement9 %? Repl*9 k? 4hird-part* complaints9 and l? :nterventions.

4he $4Cs shall appl* this Rule in all actions which areE a? purel* civil in nature where the claim or relief pra*ed for b* the plaintiff is solel* for pa*ment or reimbursement of sum of mone*9 and b? the civil aspect of criminal actions7 either filed before the institution of the criminal action7 or reserved upon the filing of the criminal action in court7 pursuant to Rule !!! of the Revised Rules of Criminal rocedure. 4hese claims or demands ma* beE a? 5or mone* owed under an* of the followingE !. Contract of Lease9 ". Contract of Loan9 &. Contract of Services9 '. Contract of Sale9 or (. Contract of $ortgage9 b? 5or damages arising from an* of the followingE !. 5ault or negligence9 ". Auasi-contract9 or &. Contract9 c? 4he enforcement of a baranga* amicable settlement or an arbitration award involving a mone* claim covered b* this Rule pursuant to Sec. '!+ of RA +!)D. /OMMEN/EMENT O) SMALL /LAIMS A/TION A small claims action is commenced b* filing with the court anE !? accomplished and verified Statement of Claim in duplicate9 "? a Certification of #on-forum Shopping9 a? $otion to dismiss the complaint9 b? $otion for a bill of particulars9 c? $otion for new trial7 or for reconsideration of a %udgment7 or for reopening of trial9 d? etition for relief from %udgment9 e? $otion for e1tension of time to file pleadings7 affidavits7 or an* other paper9 f? $emoranda9

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A,,EARAN/ES 4he parties shall appear at the designated date of hearing 2RS3#ALLH. Appearance through a representative must be for a 6" i' c"use. 4he representative of an individual-part* mustE !? not be a law*er9 and "? must be related to or ne1t-of-kin of the individual-part*. 2uri'ic" entities sh" not %e re!resente' %+ " ")+er in "n+ c"!"cit+. 4he representative must be authori@ed under a Special ower of Attorne* to enter into an amicable settlement of the dispute and to enter into stipulations or admissions of facts and of documentar* e1hibits. E))E/T O) )AIL(RE TO A,,EAR 5ailure of the plaintiff to appear shall be cause for the dismissal of the claim without pre%udice. 4he defendant who appears shall be entitled to %udgment on a permissive counterclaim. 5ailure of the defendant to appear shall have the same effect as failure to file a Response. 4his rule shall not appl* where one of two or more defendants sued on a common cause of action appear. 5ailure of both parties to appear shall cause the dismissal with pre%udice of both the claim and counterclaim. >EARIN+H D(T' O) T>E .(D+E At the beginning7 the %udge shall read aloud a short statement e1plaining the nature7 purpose and the rule of procedure of small claims cases and shall e1ert efforts to bring the parties to an amicable settlement of their dispute. An* settlement or resolution of the dispute shall be reduced into writing7 signed b* the parties and submitted to the court for approval. Settlement discussions shall be strictl* confidential and an* reference to an* settlement made in the course of such discussions shall be punishable b* contempt. )INALIT' O) .(D+MENT After the hearing7 the court shall render its decision on the same da* and the same shall be final and unappealable and if it is in favor of the

plaintiff7 the %udgment shall be e1ecuted upon his motion.

R(LES O) ,RO/ED(RE )OR ENVIRONMENTAL /ASES (A@ 4o. 0(,A,B,&))

S/O,E AND A,,LI/ABILIT' O) T>E R(LE 4hese Rules shall govern the procedure in civil7 criminal and special civil actions before the R4Cs and $4Cs involving enforcement or violations of environmental and other related laws7 rules and regulations. /IVIL ,RO/ED(RE ,RO>IBITION A+AINST TEM,ORAR' RESTRAININ+ ORDER AND ,RELIMINAR' IN.(N/TION 21cept the Supreme Court7 no court can issue a 4R3 or writ of preliminar* in%unction against lawful actions of government agencies that enforce environmental laws or prevent violations thereof e1cept the Supreme Court. ,RE<TRIAL /ON)EREN/EH /ONSENT DE/REE ;SE/& 3? R(LE 1= 4he %udge shall put the parties and their counsels under oath7 and the* shall remain under oath in all pre-trial conferences. 4he %udge shall e1ert best efforts to persuade the parties to arrive at a settlement of the dispute. 4he %udge ma* issue a consent decree approving the agreement between the parties in accordance with law7 morals7 public order and public polic* to protect the right of the people to a balanced and healthful ecolog*. 2vidence not presented during the pre-trial7 e1cept newl* discovered evidence7 shall be deemed waived. C3#S2#4 D2CR22 refers to a %udiciall*approved settlement between concerned parties based on public interest aspect in environmental cases and encourages the parties to e1pedite the resolution of litigation. ,RO>IBITED ,LEADIN+S AND MOTIONS ;SE/& 2? R(LE 2=

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a? $otion to dismiss the complaint9 b? $otion for a bill of particulars9 c? $otion for e1tension of time to file pleadings7 e1cept to file answer7 the e1tension not to e1ceed fifteen >!(? da*s9 $otion for postponement7 motion for new trial and petition for relief from %udgment shall onl* be allowed in certain conditions of highl* meritorious cases or to prevent a manifest miscarriage of %ustice. 4he satisfaction of these conditions is re,uired since these motions are prone abuse during litigation. $otion for intervention is permitted in order to allow the public to participate in the filing and prosecution of environmental cases7 which are imbued with public interest. etitions for certiorari are likewise permitted since these raise fundamentall* ,uestions of %urisdiction. TEM,ORAR' ENVIRONMENTAL ,ROTE/TION ORDER ;TE,O= 1e$!or"r+ En6iron$ent" Protection Fr'er (1EPF) / refers to an order issued b* the court directing or en%oining an* person or government agenc* to perform or desist from performing an act in order to protect7 preserve or rehabilitate the environment. 4he 42 3 shall be issued it appears from the verified complaint with a pra*er for the issuance of an 2nvironmental rotection 3rder >2 3? that the matter is of e1treme urgenc* and the applicant will suffer grave in%ustice and irreparable in%ur*. 4he applicant shall be e1empted from the posting of a bond for the issuance of a 42 3. 4he e1ecutive %udge of the multiple sala court before raffle or the presiding %udge of a singlesala court as the case ma* be7 ma* issue e1 parte a 42 3 effective for onl* sevent*-two >+"? hours from date of the receipt of the 42 3 b* the part* or person en%oined. <ithin said period7 the court where the case is assigned7 shall conduct a summar* hearing to determine whether the 42 3 ma* be e1tended until the termination of the case. 4he court handling the case shall periodicall* monitor the e1istence of acts that are the sub%ect matter of the 42 3 and ma* lift the same at an* time as circumstances ma* warrant.

d? $otion to declare the default9 e? Repl* and re%oinder9 and f? 4hird part* complaint.

defendant

in

An "!! ic"nt is e#e$!t fro$ the !ostin3 of " %on'. =hi e the 1EPF $"+ %e issue' e# !"rte, this is $ore of the e#ce!tion. 1he 3ener" ru e on the con'uct of " he"rin3 !ursu"nt to 'ue !rocess re$"ins. .(D+MENT AND E*E/(TION ;R(LE 3= An* %udgment directing the performance of acts for the protection7 preservation or rehabilitation of the environment shall be e1ecutor* pending appeal B#L2SS restrained b* the appellate court. :t ma* not be sta*ed b* the posting of a bond and the sole remed* lies with the appellate court. 4he appellate court can issue a 4R3 to restrain the e1ecution of the %udgment and should the appellate court act with grave abuse of discretion in refusing to act on the application for a 4R37 a petition for certiorari under Rule )( can be brought before the Supreme Court. RELIE)S IN A /ITIGENDS S(IT An* 5ilipino citi@en in representation of others7 including minors or generations *et unborn7 ma* file an action to enforce rights or obligations under environmental laws. :f warranted7 the court ma* grant to the plaintiff proper reliefs which shall include the protection7 preservation or rehabilitation of the environment and the pa*ment of attorne*Ls fees7 costs of suit and other litigation e1penses. :t ma* also re,uire the violator to submit a program of rehabilitation or restoration of the environment7 the costs of which shall be borne b* the violator7 or to contribute to a special trust fund for that purpose sub%ect to the control of the court. ,ERMANENT ENVIRONMENTAL ,ROTE/TION ORDER 4he court ma* convert the 42 3 to a permanent 2 3 or issue a writ of continuing mandamus directing the performance of acts which shall be effective until the %udgment is full* satisfied. 4he court ma*7 b* itself or through the appropriate government agenc*7 monitor the e1ecution of the %udgment and re,uire the part* concerned to submit written reports on a

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,uarterl* basis or sooner as ma* be necessar*7 detailing the progress of the e1ecution and satisfaction of the %udgment. 4he other part* ma*7 at its option7 submit its comments or observations on the e1ecution of the %udgment. WRIT O) /ONTIN(IN+ MANDAM(S C3#4:#B:#8 $A#DA$BS is a writ issued b* a court in an environmental case directing an* agenc* or instrumentalit* of the government or officer thereof to perform an act or series of acts decreed b* final %udgment which shall remain effective until %udgment is full* satisfied. 4he concept of continuing mandamus was originall* enunciated in the case of Concerne' *esi'ents of ,"ni " B"+ 6s. ,,4A, G* 1:198:/ 9<, 4ec. 1<, 2..<. 4he Rules now codif* the <rit of Continuing $andamus as one of the principal remedies which ma* be availed of in environmental cases. STRATE+I/ LAWS(IT A+AINST ,(BLI/ ,ARTI/I,ATION S4RA428:C LA<SB:4 A8A:#S4 BBL:C AR4:C: A4:3# >SLA ? refers to an action whether civil7 criminal or administrative7 brought against an* person7 institution or an* government agenc* or local government unit or its officials and emplo*ees7 with the intent to harass7 ve17 e1ert undue pressure or stifle an* legal recourse that such person7 institution or government agenc* has taken or ma* take in the enforcement of environmental laws7 protection of the environment or assertion of environmental rights. A legal action filed to harass7 ve17 e1ert undue pressure or stifle an* legal recourse that an* person7 institution or the government has taken or ma* take in the enforcement of environmental laws7 protection of the environment or assertion of environmental rights shall be treated as a SLA . :n a case is a SLA the defendant ma* file an answer interposing as a defense that the case is a? b? c? d? e? $otion to dismiss9 $otion for e1tension of time to file return9 $otion for postponement9 $otion for a bill of particulars9 Counterclaim or cross-claim9 DIS/OVER' MEAS(RES

a SLA . 4he hearing on the defense of a SLA shall be summar* in nature. 4he part* filing the action assailed as a SLA shall prove b* preponderance of evidence that the action is not a SLA and is a valid claim. 4he defense of a SLA shall be resolved within thirt* >&D? da*s after the summar* hearing. :f the court dismisses the action7 the court ma* award damages7 attorne*Ls fees and costs of suit under a counterclaim if such has been filed. 4he dismissal shall be with pre%udice. :f the court re%ects the defense of a SLA 7 the evidence adduced during the summar* hearing shall be treated as evidence of the parties on the merits of the case. Since a motion to dismiss is a prohibited pleading7 SLA as an affirmative defense should be raised in an answer along with other defenses that ma* be raised in the case alleged to be a SLA . S,E/IAL ,RO/ED(RE B ,RO/EEDIN+ WRIT O) 8ALI8ASAN ;WO8= 4he writ is a e1traordinar* remed* available to a natural or %uridical person7 entit* authori@ed b* law7 peopleCs organi@ation7 non-governmental organi@ation7 or an* public interest group accredited b* or registered with an* government agenc*7 on behalf of persons whose constitutional right to a balanced and healthful ecolog* is violated7 or threatened with violation b* an unlawful act or omission of a public official or emplo*ee7 or private individual or entit*7 involving environmental damage of such magnitude as to pre%udice the life7 health or propert* of inhabitants in two or more cities or provinces. 4hose who ma* file for this remed* must represent the inhabitants pre%udiced b* the environmental damage sub%ect of the writ to be filed with the SC or CA. 4he applicant is e1empted from !"+$ent of 'oc9et fees. ,RO>IBITED ,LEADIN+S AND MOTIONS f? 4hird-part* complaint9 g? Repl*9 and h? $otion to declare respondent in default.

A part* ma* file a verified motion for the following reliefsE

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a? 3cular :nspection - the court ma* order an* person in possession or control of a designated land or other propert* to permit entr* for the purpose of inspecting or photographing the propert* or an* relevant ob%ect or operation thereon. b? roduction or inspection of documents or things - the court ma* order an* person in possession7 custod* or control of an* designated documents7 papers7 books7 accounts7 letters7 photographs7 ob%ects or tangible things7 or ob%ects in digiti@ed or electronic form7 which constitute or contain evidence relevant to the petition or the return7 to produce and permit their inspection7 cop*ing or photographing b* or on behalf of the movant. WRIT O) /ONTIN(IN+ MANDAM(S A writ issued b* a court in an environmental case directing an* agenc* or instrumentalit* of the government or officer thereof to perform an act or series of acts decreed b* final %udgment which shall remain effective until %udgment is full* satisfied. 1he !etition sh" cont"in " s)orn certific"tion of non/foru$ sho!!in3. 1= +RO(NDS )OR /ONTIN(IN+ MANDAM(S a? <hen an* agenc* or instrumentalit* of the government or officer thereof unlawfull* neglects the performance of an act which the law specificall* en%oins as a dut* resulting from an office7 trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein9 b? <hen an* agenc* or instrumentalit* of the government or officer thereof unlawfull* e1cludes another from the use or en%o*ment of such right. 2= REA(ISITES /ONTIN(IN+ MANDAM(S a? 4here must be a clear legal right or dut*9 b? 4he act to be performed must be practical9 c? Respondent must be e1ercising a ministerial dut*9 d? 4he dut* or act to be performed must be in connection with the enforcement or violation of an environmental law7 rule or regulation or a right9 and

e? 4here is no other plain7 speed*7 and ade,uate remed* in the ordinar* course of law. 4he petition shall be filed with the Regional 4rial Court e1ercising %urisdiction over the territor* where the actionable neglect or omission occurred or with the Court of Appeals or the Supreme Court. 4he petitioner shall be e1empt from the pa*ment of docket fees. :f warranted7 the court shall grant the privilege of the writ of continuing mandamus re,uiring respondent to perform an act or series of acts until the %udgment is full* satisfied and to grant such other reliefs as ma* be warranted resulting from the wrongful or illegal acts of the respondent. Bpon full satisfaction of the %udgment7 a final return of the writ shall be made to the court b* the respondent. :f the court finds that the %udgment has been full* implemented7 the satisfaction of %udgment shall be entered in the court docket. 4he issuance of a 42 3 is made available as an au1illar* remed* prior to the issuance of the writ itself. As a special civil action7 the <oC$a ma* be availed of to compel the performance of an act specificall* en%oined b* law. :ts availabilit* as a special civil action likewise complements its role as a final relief in environmental civil cases and in the <3=7 where continuing mandamus ma* likewise be issued should the facts merit such relief. WRIT O) /ONTIN(IN+ MANDAM(S VS& WRIT O) 8ALI8ASAN &ub#ect matter. Wo/Ma is directed against the unlawful neglect in the performance of an act which the law specificall* en%oins as a dut* resulting from an office7 trust or station in connection with the enforcement or violation of an environmental law rule or regulation or a right therein9 or >a? the unlawful e1clusion of another from the use or en%o*ment of such right and in both instances7 there is no other plain7 speed* and ade,uate remed* in the ordinar* course of law. A writ of kalikasan is available against unlawful act or omission of a public official or emplo*ee7 or private individual or entit*7 involving environmental damage of such magnitude as to pre%udice the life7 health or propert* of inhabitants in two or more cities or provinces. :n addition7 magnitude of environmental damage is a condition sine ,ua non in a petition for the issuance of a writ of

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kalikasan and must be contained in the verified petition. +ho may file. A writ of contin%ing man#am%s is available to a broad range of persons such as natural or %uridical person7 entit* authori@ed b* law7 peopleLs organi@ation7 #837 or an* public interest group accredited b* or registered with an* government agenc*7 on behalf of persons whose right to a balanced and healthful ecolog* is violated or threatened to be violated. /espondent. 4he respondent in a petition for continuing mandamus is onl* the government or its officers7 unlike in a petition for writ of kalikasan7 where the respondent ma* be a private individual or entit*. 6-emption from doc!et fees. 4he application for either petition is e1empted from the pa*ment of docket fees. Cenue& A petition for the issuance of a writ of continuing mandamus ma* be filed in the followingE >a? the R4C e1ercising %urisdiction over the territor* where the actionable neglect or omission occurred9 >b? the CA9 or >c? the SC. 8iven the magnitude of the damage7 the application for the issuance of a writ of kalikasan can onl* be filed with the SC or an* station of the CA. iscovery measures. 4he Rule on the <C$ does not contain an* provision for discover* measures7 unlike the Rule on <3= which incorporates the procedural environmental right of access to information through the use of discover* measures such as ocular inspection order and production order. amages for personal in#ury. 4he <C$ allows damages for the malicious neglect of the performance of the legal dut* of the respondent7 identical Rule )(. :n contrast7 no damages ma* be awarded in a petition for the issuance of a <3= consistent with the public interest character of the petition. A part* who avails of this petition but who also wishes to be indemnified for in%uries suffered ma* file another suit for the recover* of damages since the Rule on <3= allows for the institution of separate actions. /RIMINAL ,RO/ED(RE W>O MA' )ILE

An* offended part*7 peace officer or an* public officer charged with the enforcement of an environmental law. INSTIT(TION O) /RIMINAL AND /IVIL A/TION <hen a criminal action is instituted7 the civil action for the recover* of civil liabilit* arising from the offense charged7 shall be deemed instituted with the criminal action B#L2SS the complainant a? waives the civil action b? reserves the right to institute it separatel* c? institutes the civil action prior to the criminal action. Bnless the civil action has been instituted prior to the criminal action7 the reservation of the right to institute separatel* the civil action shall be made during arraignment. ARREST WIT>O(T WARRANTH W>EN VALID ;SE/& 1? R(LE 11= A peace officer or an individual deputi@ed b* the proper government agenc* ma*7 without a warrant7 arrest a personE a? <hen7 in his presence7 the person to be arrested has committed7 is actuall* committing or is attempting to commit an offense9 or b? <hen an offense has %ust been committed7 and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. c? :ndividuals deputi@ed b* the proper government agenc* who are enforcing environmental laws shall en%o* the R2SB$ 4:3# 35 R28BLAR:4H under Section &>m?7 Rule !&! of the Rules of Court when effecting arrests for violations of environmental laws. ,RO/ED(RE IN T>E /(STOD' AND DIS,OSITION O) SEIGED ITEMS Custod* and disposition of sei@ed items shall be in accordance with the applicable laws or rules promulgated b* the concerned government agenc*. :n the absence of applicable laws or rules promulgated b* the concerned government agenc*7 the following procedure shall be observedE

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a? 4he apprehending officer having initial custod* and control of the sei@ed items7 e,uipment7 paraphernalia7 conve*ances and instruments shall ph*sicall* inventor* and whenever practicable7 photograph the same in the presence of the person from whom such items were sei@ed. b? 4hereafter7 the apprehending officer shall submit to the issuing court the return of the search warrant within five >(? da*s from date of sei@ure or in case of warrantless arrest7 submit within five >(? da*s from date of sei@ure7 the inventor* report7 compliance report7 photographs7 representative samples and other pertinent documents to the public prosecutor for appropriate action. c? Bpon motion b* an* interested part*7 the court ma* direct the auction sale of sei@ed items7 e,uipment7 paraphernalia7 tools or instruments of the crime. 4he court shall7 after hearing7 fi1 the minimum bid price based on the recommendation of the concerned government agenc*. 4he sheriff shall conduct the auction. d? 4he auction sale shall be with notice to the accused7 the person from whom the items were sei@ed7 or the owner thereof and the concerned government agenc*. e? 4he notice of auction shall be posted in three conspicuous places in the cit* or municipalit* where the items7 e,uipment7 paraphernalia7 tools or instruments of the crime were sei@ed. f? 4he proceeds shall be held in trust and deposited with the government depositor* bank for disposition according to the %udgment. BAIL W>ERE TO )ILE Bail ma* be filed with the court where the case is pending7 or in the absence or unavailabilit* of the %udge thereof7 with an* regional trial %udge7 metropolitan trial %udge7 municipal trial %udge or municipal circuit trial %udge in the province7 cit* or municipalit*. :f the accused is arrested in a province7 cit* or municipalit* other than where the case is pending7 bail ma* also be filed with an* Regional 4rial Court of said place7 or if no %udge thereof is available7 with an* metropolitan trial %udge7 municipal trial %udge or municipal circuit trial %udge therein.

:f the court grants bail7 the court ma* issue a hold-departure order in appropriate cases. D(TIES O) T>E /O(RT Before granting the application for bail7 the %udge must read the information in a language known to and understood b* the accused and re,uire the accused to sign a written undertaking7 as followsE a? 4o appear before the court that issued the warrant of arrest for arraignment purposes on the date scheduled7 and if the accused fails to appear without %ustification on the date of arraignment7 accused waives the reading of the information and authori@es the court to enter a plea of not guilt* on behalf of the accused and to set the case for trial9 b? 4o appear whenever re,uired b* the court where the case is pending9 and c? 4o waive the right of the accused to be present at the trial7 and upon failure of the accused to appear without %ustification and despite due notice7 the trial ma* proceed in absentia. ARRAI+NMENT 4he court shall set the arraignment of the accused within fifteen >!(? da*s from the time it ac,uires %urisdiction over the accused7 with notice to the public prosecutor and offended part* or concerned government agenc* that it will entertain plea-bargaining on the date of the arraignment. ,LEA<BAR+AININ+ 3n the scheduled date of arraignment7 the court shall consider plea-bargaining arrangements. <here the prosecution and offended part* or concerned government agenc* agree to the plea offered b* the accused7 the court shallE !? :ssue an order which contains the plea-bargaining arrived at9 "? roceed to receive evidence on the civil aspect of the case7 if an*9 and &? Render and promulgate %udgment of conviction7 including the civil liabilit* for damages. P e"/%"r3"inin3 is consi'ere' "t "rr"i3n$ent in or'er to "6oi' the situ"tion )here "n initi" ! e" is ch"n3e' in the course of the tri" in 6ie) of " successfu ! e" %"r3"in. ,RE<TRIAL

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After the arraignment7 the court shall set the R2-4R:AL C3#52R2#C2 within thirt* >&D? da*s. :t ma* refer the case to the branch clerk of court7 if warranted7 for a preliminar* conference to be set at least three >&? da*s prior to the pre-trial. D(T' O) T>E .(D+E !? lace the parties and their counsels under oath9 "? Adopt the minutes of the preliminar* conference as part of the pre-trial proceedings7 confirm markings of e1hibits or substituted photocopies and admissions on the genuineness and due e1ecution of documents7 and list ob%ect and testimonial evidence9 &? Scrutini@e the information and the statements in the affidavits and other documents which form part of the record of the preliminar* investigation together with other documents identified and marked as e1hibits to determine further admissions of facts as toE a. 4he courtLs territorial %urisdiction relative to the offense>s? charged9 b. Aualification of e1pert witnesses9 and c. Amount of damages9 '? Define factual and legal issues9 (? Ask parties to agree on the specific trial dates and adhere to the flow chart determined b* the court which shall contain the time frames for the different stages of the proceeding up to promulgation of decision9 )? Re,uire the parties to submit to the branch clerk of court the names7 addresses and contact numbers of witnesses that need to be summoned b* subpoena9 and +? Consider modification of order of trial if the accused admits the charge but interposes a lawful defense. A+REEMENTS OR ADMISSIONS < All agreements or admissions made or entered during the pre-trial conference shall be reduced in writing and signed b* the accused and counsel9 otherwise7 the* cannot be used against the accused. 4he agreements covering the matters referred to in Section !7 Rule !!- of the Rules of Court shall be approved b* the court. R cor# o: -roc #ings& All proceedings during the pre-trial shall be recorded7 the transcripts prepared and the minutes signed b* the parties or their counsels.

,RE<TRIAL ORDER - 4he court shall issue a pretrial order within ten >!D? da*s after the termination of the pre-trial7 setting forth the actions taken during the pre-trial conference7 the facts stipulated7 the admissions made7 evidence marked7 the number of witnesses to be presented and the schedule of trial. 4he order shall bind the parties and control the course of action during the trial. S(BSIDIAR' LIABILIT' :n case of conviction of the accused and subsidiar* liabilit* is allowed b* law7 the court ma*7 b* motion of the person entitled to recover under %udgment7 enforce such subsidiar* liabilit* against a person or corporation subsidiaril* liable under Article !D" and Article !D& of the Revised enal Code. SLA,, IN /RIMINAL /ASES Bpon the filing of an information in court and before arraignment7 the accused ma* file a motion to dismiss on the ground that the criminal action is a SLA . 4he hearing on the defense of a SLA shall be summar* in nature. 4he part* seeking the dismissal of the case must prove b* substantial evidence that his acts for the enforcement of environmental law are a legitimate action for the protection7 preservation and rehabilitation of the environment. 4he part* filing the action assailed as a SLA shall prove b* preponderance of evidence that the action is not a SLA . 4he court shall grant the motion if the accused establishes in the summar* hearing that the criminal case has been filed with intent to harass7 ve17 e1ert undue pressure or stifle an* legal recourse that an* person7 institution or the government has taken or ma* take in the enforcement of environmental laws7 protection of the environment or assertion of environmental rights. :f the court denies the motion7 the court shall immediatel* proceed with the arraignment of the accused. EVIDEN/E ,RE/A(TIONAR' ,RIN/I,LE ,r ca%tionary -rinci-$ states that when human activities ma* lead to threats of serious and irreversible damage to the environment that is scientificall* plausible but uncertain7 actions shall be taken to avoid or diminish that threat.

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<hen there is a lack of full scientific certaint* in establishing a casual link between human activit* and environmental effect7 the court shall appl* the precautionar* principle in resolving the case before it. 4he constitutional right of the people to a balanced and healthful ecolog* shall be given the benefit of the doubt. :n appl*ing the precautionar* principle7 the following factors7 among others7 ma* be consideredE a? threats to human life or health9 b? ine,uit* to present or future generations9 or c? pre%udice to the environment without legal consideration of the environmental rights of those affected. DO/(MENTAR' EVIDEN/E hotographic7 video and similar evidence of events7 acts7 transaction of wildlife7 wildlife b*products or derivatives7 forest products or mineral resources sub%ect of a case shall be admissible when authenticated b* the person who took the same7 b* some other person present when said evidence was taken7 or b* an* other person competent to testif* on the accurac* thereof. 2ntries in official records made in the performance of his dut* b* a public officer of the hilippines7 or b* a person in performance of a dut* especiall* en%oined b* law7 are prima facie evidence of the facts therein stated.

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