REMEDIAL LAW:. ACTIONS; DEFINED.

An action is a formal demand of one's legal rights in a court of justice in the manner prescribed by the court or by the law. The determinative or operative fact which converts a claim into an "action or suit" is the filing of the same with a "court of justice". Filed elsewhere, as with some other body or office not a court of justice, the claim may not be categorized under either term. CAUSE OF ACTION; TWO ELEMENTS. The cause of action must always consist of two elements !"# the plaintiff's primary right and the defendant's corresponding primary duty, whatever may be the subject to which they relate person, character, property or contract$ and !%# the delict or wrongful act or omission of the defendant, by which the primary right and duty have been violated. The cause of action is determined not by the prayer of the complaint but by the facts alleged. DIFFERENCE BETWEEN CAUSE OF ACTION AND ACTION. A cause of action is the fact or combination of facts which affords a party a right to judicial interference in his behalf. An action means an ordinary suit in a court of justice, by which one party prosecutes another for the enforcement or protection of a right, or the prosecution or redress of a wrong. PLEADINGS; RIGHT OF ACTION DISTINGUISHED FROM CAUSE OF ACTION. The term right of action is the right to commence and maintain an action. &n the law on pleadings, right of action is distinguished from cause of action in that the former is a remedial right belonging to some persons, while the latter is a formal statement of the operative facts that give rise to such remedial right. The former is a matter of right and depends on the substantive law, while the latter is a matter of statement and is governed by the law of procedure. COMPLAINT; MUST CHARGE BUT ONE OFFENSE; WAIVER OF ERRONEOUS COMPLAINT. The information herein is violative of 'ection "( )ule ""* of the )ules on +riminal ,rocedure which states that a complaint or information must charge but one offense e-cept in certain cases. The four accused are charged with two separate offenses of illegal possession of firearms and robbery with homicide. .hen each one of two offenses committed is punishable by two different laws, they cannot be charged in one information as a comple- crime but must be regarded as two separate and distinct offenses, each one to be the subject of separate informations. .hen duplicity of offenses e-ists in an information the accused must present his objection by filing a motion to /uash the information on the ground of duplicity of offenses. &f the accused fails to object and goes to trial under the information which contains a description of more than one offense, the general rule is he thereby waives the objection and may be found guilty of and should be sentenced for, as many offenses as are charged in the information and proved during trial !,eople v. 0edina 12 ,hil. "(3$ ,eople v. 0iana 1* ,hil. 44"#. This rule however shall apply only if the accused is formally arraigned and re/uired to plead on all the offenses as

are charged in the information. 5therwise, the accused cannot be convicted of the offenses with respect to which he was not properly arraigned. CIVIL PROCEDURE; SERVICE OF PLEADING BY REGISTERED MAIL; COMPLETED UPON ACTUAL RECEIPT BY ADDRESSEE The general rule is that service by registered mail is complete upon actual receipt thereof by the addressee. The e-ception is where the addressee does not claim his mail within 1 days from the date of the first notice of the postmaster, in which case the service ta6es effect upon the e-piration of such period. &nasmuch as the e-ception refers to only constructive and not actual service, such e-ception must be applied only upon conclusive proof that a first notice was duly sent by the postmaster to the addressee. The presumption that official duty has been regularly performed is not applicable where there is evidence to the contrary, as in the case at bar. REPLEVIN;DEFENDANT MAY DEMAND RETURN OF PROPERTY BY FILING REDELIVERY BOND AND WITHIN FIVE DAYS AFTER TAKING OF PROPERTY. This +ourt has e-plained that a defendant in a replevin suit, may demand the return of possession of the property replevined by filing a redelivery bond e-ecuted to the plaintiff in double the value of the property as stated in the plaintiff's affidavit, within the periods specified in 'ections 1 and 7 of )ule 7* of the )ules of +ourt. 8nder 'ection 1, petitioner may "at any time before the delivery of the property to the plaintiff' re/uire the return of the property$ in 'ection 7, he may do so, "within five !1# days after the ta6ing of the property by the officer." 9oth these periods are mandatory in character. Thus, a lower court which approves a counterbond filed beyond the statutory periods, acts in e-cess of jurisdiction. RES JUDICATA; IDENTITY OF ISSUES; RULE ON CONCLUSIVENESS OF JUDGMENT. .hen there is no identity of causes of action, but only an identity of issues, there e-ists res judicata in the concept of conclusiveness of judgment. Although it does not have the same effect as res judicata in the form of bar by former judgment which prohibits the prosecution of a second action upon the same claim, demand, or cause of action, the rule on conclusiveness of judgment bars the relitigation of particular facts or issues in another litigation between the same parties on a different claim or cause of action. PREJUDICIAL QUESTION; REQUISITES. For a civil action to be considered prejudicial to a criminal case as to cause the suspension of the criminal proceedings until the final resolution of the civil, the following re/uisites must be present !"# the civil case involves facts intimately related to those upon which the criminal prosecution would be based$ !%# in the resolution of the issue or issues raised in the civil action, the guilt or innocence of the accused would necessarily be determined$ and !(# jurisdiction to try said /uestion must be lodged in another tribunal. QUANTUM OF EVIDENCE REQUIRED IN PRELIMINARY INVESTIGATIONS

The /uantum of evidence now re/uired in preliminary investigation is such evidence sufficient to "engender a well founded belief" as to the fact of the commission of a crime and the respondent's probable guilt thereof. A preliminary investigation is not the occasion for the full and e-haustive display of the parties' evidence$ it is for the presentation of such evidence only as may engender a well grounded belief that an offense has been committed and that the accused is probably guilty thereof. APPEALS; DUTY OF APPELLANT TO PROSECUTE HIS APPEAL WITH REASONABLE DILIGENCE. A rule long familiar to practitioners in this jurisdiction is that it is the duty of the appellant to prosecute his appeal with reasonable diligence. :e cannot simply fold his arms and say that it is the duty of the +ler6 of +ourt of First &nstance under the provisions of 'ection "", )ule 3" of the )ules of +ourt to transmit the record on appeal to the appellate court. &t is appellants duty to ma6e the +ler6 act and, if necessary, procure a court order to compel him to act. :e cannot idly sit by and wait till this is done. :e cannot afterwards wash his hands and say that delay in the transmittal of the record on appeal was not his fault. For indeed, this duty imposed upon him was precisely to spur on the slothful. PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS; WHEN PRESUMPTION WILL NOT ARISE. .hen there are several related acts supposed to be performed by a public officer or employee in regard to a particular matter, the presumption of regularity in the performance of official functions would not arise and be considered as comprehending all the re/uired acts, if the certification issued by the proper office refers only to some of such acts, particularly in instances wherein proof of whether or not all of them have been performed is available under the law or office regulations to the officer ma6ing the certification. &n other words, the omission of some of the acts in the certification may justify the inference that from the proof available to the officer there is no showing that they have also been performed. CREDIBILITY OF WITNESSES; GENERALLY BINDING AND CONCLUSIVE; BEST LEFT TO DETERMINATION OF TRIAL COURT JUDGE. .here the bone of contention is the credibility of a witness, settled is the rule that the trial court;s assessment of a witness; credibility is accorded great weight by appellate courts absent any showing that the trial court overloo6ed certain matters which, if ta6en into consideration, would have materially affected the outcome of the case. And where the trial court;s findings have been affirmed by the +ourt of Appeals, these are generally binding and conclusive upon this +ourt. The determination of the credibility of witnesses is best left to the trial court judge because of his uni/ue opportunity to observe their deportment and demeanor on the witness stand, a vantage point denied appellate tribunals. JUDICIAL BONDS; NATURE. <udicial bonds are contractual in nature. They constitute a special class of contracts of guaranty since they are given by virtue of judicial order. =ven if the appeal bond is defective, a situation not true in the present case, as long as it is not void and given in

good faith and not for the purpose of delay, the trial +ourt may order its amendment. The appeal should not be dismissed without giving the appellant an opportunity to perfect the bond or to file a new bond. This +ourt even held that an appeal bond signed by one bondsman is not defective as to justify dismissal of the appeal. CRIMINAL PROCEDURE; PROSECUTION OF CRIMINAL CASE; RESPONSIBILITY OF GOVERNMENT PROSECUTOR. &t is a-iomatic that the prosecution of a criminal case is the responsibility of the government prosecutor and must always be under his control. This is true even if a private prosecutor is allowed to assist him and actually handles the e-amination of the witnesses and the introduction of other evidence. The witnesses, even if they are the complaining witnesses cannot act for the prosecutor in the handling of the case. They have no personality to move for its dismissal or revival as they are not even parties thereto nor do they represent the parties to the action. Their only function is to testify. &n a criminal prosecution, the plaintiff is represented by the government prosecutor, or one acting under his authority, and by no one else. CERTIORARI; WILL NOT LIE UNLESS A MOTION FOR RECONSIDERATION IS FILED FIRST; EXCEPTIONS The rule is that certiorari as a special civil action will not lie unless a motion for reconsideration is filed before the respondent tribunal to allow it an opportunity to correct its imputed errors.>Tan vs. +A, %41 '+)A 17?$ @uiambao vs. AB)+, %13 '+)A %"".C There are e-ceptions to the rule, these are !"# when the issue raised is purely one of law$ !%# where public interest is involved$ !(# in cases of emergency$ or !3# where special circumstances warrant immediate or more direct action. COMPROMISE AGREEMENTS; HAS THE FORCE OF RES JUDICATA BETWEEN THE PARTIES; CANNOT BE DISTURBED EXCEPT FOR VICES OF CONSENT. Ao one can dispute that the "essence of compromises, being mutual concessions by the parties, is to avoid or end litigation. &t is therefore a wellDsettled rule that a compromise, once approved by final orders of the court has the force of res judicata between the parties and should not be disturbed e-cept for vices of consent or forgery". &n a string of decisions, this +ourt has repeatedly held that a judgment upon compromise which is a judgment embodying a compromise agreement entered into by the parties in which they ma6e reciprocal concessions in order to terminate a litigation already instituted is not appealable, is immediately e-ecutory and has the effect of res judicata. GRAVE ABUSE OF DISCRETION; DEFINED. Erave abuse of discretion implies a capricious and whimsical e-ercise of judgment as is e/uivalent to lac6 of jurisdiction, or, when the power is e-ercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. &t is not sufficient that a tribunal, in the e-ercise of its power, abused its discretion$ such abuse must be grave. GRAVE ABUSE OF DISCRETION; WHEN PRESENT.

There is "grave abuse of discretion" where there is a capricious and whimsical e-ercise of judgment amounting to lac6 of jurisdiction or where the power is e-ercised in an arbitrary and despotic manner by reasons of passion or personal hostility, and it is so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. EVIDENCE; MUST NOT ONLY PROCEED FROM A CREDIBLE SOURCE BUT MUST BE CREDIBLE IN ITSELF As repeatedly e-pounded by this +ourt, evidence to be worthy of credit, must not only proceed from a credible source but must, in addition, be credible in itself. And by this is meant that it shall be natural, reasonable and probable as to ma6e it easy to believe. Ao better test has yet been found to determine the value of the testimony of a witness than its conformity to the 6nowledge and common e-perience of man6ind. As bewailed by the court below, the theory espoused by appellant "is ta-ing too much the credulity of this +ourt, an insult to the humble intelligence and the common sense of this +ourt. COUNTERBOND OF DEFENDANT; PURPOSE. To forestall the possession by the plaintiff of the property our procedural law provides that the defendant must post a counterbond and must furnish the plaintiff with the copy of the underta6ing. Again, if only for the purpose of emphasis, this is re/uired to protect the plaintiff, should his action be adjudged meritorious. .e need not mention, that this procedure was purposely formulated to allow the defendant to continue possessing the property. Aot to re/uire him to post any bond would li6ewise, be counter to the objectives and intent sought by the framers of the law. &n short, whoever holds the property must post the bond to stand as security to the nonDholder pending the final determination of the case. PROCEDURAL DUE PROCESS IN DISCIPLINARY CASES OF STUDENTS. The imposition of disciplinary sanctions re/uires observance of procedural due process. And it bears stressing that due process in disciplinary cases involving students does not entail proceedings and hearings similar to those prescribed for actions and proceedings in courts of justice. The proceedings in student discipline cases may be summary$ and crossD e-amination is not, contrary to petitioners' view, an essential part thereof. There are withal minimum standards which must be met to satisfy the demands of procedural due process$ and these are, that !"# the students must be informed in writing of the nature and cause of any accusation against them$ !%# they shall have the right to answer the charges against them, with the assistance of counsel, if desired$ !(# they shall be informed of the evidence against them$ !3# they shall have the right to adduce evidence in their own behalf$ and !1# the evidence must be duly considered by the investigating committee or official designated by the school authorities to hear and decide the case. CIVIL PROCEDURE; NOTICES; CERTIFICATION BY POSTMASTER. A certification from the postmaster would be the best evidence to prove that the notice has been validly sent. The mailman may also testify that the notice was actually delivered, as we held in Aldecoa vs. :on. Arellano and 'i/uenza. The postmaster should certify not only that the notice was issued or sent but also as to how, when and to whom the delivery thereof was made. +onse/uently, it cannot be too much to e-pect that when

the post office ma6es a certification regarding delivery of registered mail, such certification should include the data not only as to whether or not the corresponding notices were issued or sent but also as to how, when and to whom the delivery thereof was made. CRIMINAL PROCEDURE; ACCUSED SHALL BE INFORMED OF NATURE AND CAUSE OF ACCUSATION. &n all criminal prosecutions, the accused shall first be informed of the nature and cause of the accusation against him. The right of the accused to be informed of the charges against him is e-plicit in 'ec. "!b# )ule ""1 of the )ules of +riminal ,rocedure. To ensure that the due process rights of an accused are observed, every indictment must embody the essential elements of the crime charged with reasonable particularity as to the name of the accused, the time and place of commission of the offense, and the circumstances thereof. 5ne such particular circumstance is conspiracy where two or more persons are charged in an information. CERTIORARI; MOTION FOR RECONSIDERATION NEEDED. &n essence, a writ of certiorari may be issued only when petitioner has no other plain, speedy and ade/uate remedy in the ordinary course of law. :ence, generally, a motion for reconsideration must first be filed with the lower court prior to resorting to the e-traordinary writ of certiorari since a motion for reconsideration is still considered an ade/uate remedy in the ordinary course of law. The rationale for the filing of a motion for reconsideration is to give an opportunity to the lower court to correct its imputed errors. Eenerally, only when a motion for reconsideration has been filed and subse/uently denied can petitioner avail of the remedy of the writ of certiorari. TESTIMONY OF WITNESSES; WHEN NORMALLY ACCEPTED; DUTY OF TRIAL COURT TO ACCEPT TESTIMONY. .here considerations of visibility are favorable and the witness does not appear to be biased against the accused, his or her assertions as to the identity of the malefactor should be normally accepted. This is more so when the witness is the victim or his near relative because these witnesses usually strive to remember the faces of the assailants 0oreover, the trial court gave credence to the prosecution's identification of the appellants as the culprits. 'ubject to e-ceptions which do not obtain in these cases, the trial court is in a better position to decide this /uestion, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the trial. INTERVENTION; MERELY COLLATERAL OR ANCILLARY TO PRINCIPAL ACTION. An intervention has been regarded as "merely collateral or accessory or ancillary to the principal action and not an independent proceeding$ an interlocutory proceeding dependent on or subsidiary to, the case between the original parties." !Francisco, )ules of +ourt, Fol. "# The main action having ceased to e-ist, there is no pending proceeding whereon the intervention may be based.

PLEADINGS; COMPLIANCE WITH PROCEDURAL IMPERATIVES. &t is a settled rule that a tribunal may at any time ta6e judicial notice of the records of a case pending before it, and satisfy itself that copies of the pleadings filed by the parties are in the numbers re/uired by its rules. The failure of a pleading to comply with such procedural imperative set by the court, leaves the latter the discretion either to reject that pleading or order completion of the number of copies thereof. .here, however, the party whose pleading has been shunted aside offers to show that it has fully complied with the re/uirements of the rules and that the records 6ept by the tribunal contain inaccurate entries, the latter body should pause and listen, and give that party a day in court VENUE OF SUITS;AGREEMENT OF PARTIES;WHEN PERMISSIVE. &n interpreting situations, in/uiry must be made as to whether or not the agreement is restrictive in the sense that the suit may be filed only in the place agreed upon or merely permissive in that the parties may file their suits not only in the place agreed upon but also in the places fi-ed by the rules. RECOVERY OF OWNERSHIP OR POSSESSION OF PROPERTY. The "proper action", the object of which is for the recovery of ownership or possession of the property seized by the sheriff, is and should be an entirely separate and distinct action from that in which e-ecution has issued, if instituted by a stranger to the latter suit. RIGHT OF ACTION; WHEN IT ACCRUES AND BECOME OPERATIVE. The right of action springs from the cause of action, but does not accrue until all the facts which constitute the cause of action have occurred. .hen there is an invasion of primary rights, then and not until then does the adjective or remedial law become operative, and under it arise rights of action. There can be no right of action until there has been a wrong a violation of a legal right and it is then given by the adjective law. CONTEMPT;NOT SUBJECT TO SEPARATE ACTION The contention that a party's complaint for contempt must be the subject of a separate action would nullify contempt proceedings as means of securing obedience to the lawful processes of a courtDthis theory would reward ingenuity and cunning in revising orders which substantially are the same as the order previously prohibited by the court. CRIMINAL PROCEDURE; DUTY OF FISCAL IN COMMENCING CRIMINAL ACTIONS AGAINST PERSONS RESPONSIBLE FOR AN OFFENSE. &t must be admitted that 'ection ", )ule ""* ma6es it mandatory on the Fiscal to commence criminal actions against all persons who appear to be responsible for an offense, but this does not mean that he has no discretion at all. :e still is called on to determine whether the evidence before him is enough to justify a reasonable belief that a person has committed an offense. &t is the prerogative of the Fiscal, on the basis of the evidence gathered by him, in the e-ercise of such discretion, to charge the accused to the e-clusion of others. WRIT OF PRELIMINARY MANDATORY INJUNCTION; REQUISITES.

&t is a long settled rule that for a writ of preliminary mandatory injunction to issue, the following re/uisites must be present !"# that the complainant has a clear legal right$ !%# that his right has been violated and the invasion is material and substantial$ and !(# there is an urgent and permanent necessity for the writ to prevent serious damage. =/ually settled is that, as a rule, injunction will not be granted to ta6e property out of the possession or control of one party and place it into that of another whose title has not clearly been established by law. CIRCUMSTANCIAL EVIDENCE; REQUISITES TO SUSTAIN CONVICTION OF AN ACCUSED. +ircumstantial evidence may be resorted to in proving the identity of the accused when direct evidence is not available, otherwise felons would go scotDfree and the community would be denied proper protection. The rules on evidence and jurisprudence sustain the conviction of an accused through circumstantial evidence when the following re/uisites concur !"# there must be more than one circumstance$ !%# the inference must be based on proven facts$ and !(# the combination of all circumstances produces a conviction beyond doubt of the guilt of the accused. INTERVENTION; DEFINED. &ntervention is defined as a "proceeding in a suit or action by which a third person is permitted by the court to ma6e himself a party, either joining plaintiff in claiming what is sought by the complaint, or uniting with defendant in resisting the claims of plaintiff, or demanding something adversely to both of them$ the act or proceeding by which a third person becomes a party in a suit pending between others$ the admission, by leave of court, of a person not an original party to pending legal proceedings, by which such person becomes a party thereto for the protection of some right or interest alleged by him to be affected by such proceedings. ABATEMENT OR DISMISSAL OF ACTION; LITIS PENDENTIA &n order to constitute a ground for the abatement or dismissal of an action, litis pendentia must e-hibit the concurrnece of the following re/uisites !a# identity of parties, or at least such as representing the same interest in both actions$ !b# identity of rights asserted and relief prayed for, the relief being founded on the same facts$ and !c# identity in the two cases should be such that the judgment that may be rendered in the pending case would, regardless of which party is successful, amount to res judicata in the other. MOTIONS; MUST MEET NOTICE REQUIREMENTS;OTHERWISE CONSIDERED A WORTHLESS PIECE OF PAPER. 'ection 3 of )ule "1 of the )ules of +ourt re/uires that notice of motion be served by the movant on all parties concerned at least three !(# days before its hearing. 'ection 1 of the same )ule provides that the notice shall be directed to the parties concerned, and shall state the time and place for the hearing of the motion. A motion which does not meet the re/uirements of 'ections 3 and 1 of )ule "1 of the )ules of +ourt is considered a worthless piece of paper which the cler6 has no right to receive and the court has no authority to act upon. 'ervice of copy of a motion containing notice of the time and place of hearing of said motion is a mandatory re/uirement.

RES JUDICATA; UNDERLYING PHILOSOPHY. The underlying philosophy of the doctrine of res judicata is that parties ought not to be permitted to litigate the same issue more than once$ that when a right or fact has been judicially tried and determined by a court of competent jurisdiction, or an opportunity for such a trial has been given, the judgment of the court, so long as it remains unreversed, should be conclusive upon the parties and those in privity with them in law or estate, !0arapao v. 0endoza, ""2 '+)A 24, 'y +ao v. +A, "(% '+)A (*%#. &t is to the interest of the public that there should be an end to litigation by the same parties and their privies over a subject once fully and fairly adjudicated. &nterest republicae ut sit finis litium. ACTIONS FOR RECOVERY OF ILL-GOTTEN WEALTH; PARTIES All persons whether natural or juridical, who stand to lose in favor of the government under a judgment in such actions for recovery of soDcalled illegally ac/uired wealth should be impleaded as defendants to afford them an opportunity to be heard and to defend themselves in the action. COMPLAINT AND INFORMATION;MOTION TO QUASH OR DISMISS &t is clear from 'ection % of )ule ""4, )ules of +ourt, that a motion to /uash may be based on factual and legal grounds, and since e-tinction of criminal liability and double jeopardy are retained among the grounds for a motion to /uash in 'ection ( of the new )ule ""4, it necessarily follows that facts outside the information itself may be introduced to prove such grounds. CERTIORARI;WHEN PROPER +ertiorari may be issued only where it is clearly shown that there is patent and gross abuse of discretion as to amount to an evasion of positive duty or to virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is e-ercised in an aribitrary and despotic manner by reason of passion or personal hostility. CLASSES OF EVIDENCE The lac6 or absence of proof beyond reasonable doubt does not mean an absence of any evidence whatsoever for there is another class of evidence which, though insufficient to establish guilt beyond reasonable doubt, is ade/uate in civil cases$ this is preponderance of evidence. Then too, there is the "substantial evidence" rule in administrative proceedings which merely re/uires such relevant evidence as a reasonable mind might accept as ade/uate to support a conclusion.