Académique Documents
Professionnel Documents
Culture Documents
CIVIL PROCEDURE
General Principles ............................ 1
Jurisdiction .......................................4
JURISDICTION IN GENERAL ..................... 4
JURISDICTION OVER THE PARTIES .......... 5
JURISDICTION OVER THE SUBJECT
MATTER ................................................. 5
JURISDICTION OVER THE ISSUES ............. 7
JURISDICTION OVER THE RES OR
PROPERTY IN LITIGATION ..................... 7
JURISDICTION OF THE METC AND MTC .... 7
JURISDICTION OVER SMALL CLAIMS,
CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE AND
BARANGAY CONCILIATION ................... 8
JURISDICTION OF THE METC AND MTC .... 8
JURISDICTION OF THE RTC, FAMILY
COURTS, AND SHARIA COURTS ............ 10
JURISDICTION OF THE SANDIGANBAYAN
................................................................. 12
JURISDICTION OF THE COURT OF TAX
APPEALS ................................................. 12
JURISDICTION OF THE CA ........................13
JURISDICTION OF THE SC ....................... 14
TABLE OF CONTENTS
SPECIAL
PROCEEDINGS
Preliminary Matters ...................... 191
APPLICABLE RULES .............................. 191
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES ................................ 191
DIFFERENCE BETWEEN ACTION AND
SPECIAL PROCEEDING ....................... 191
VENUES AND JURISDICTIONS FOR
SPECIAL PROCEEDINGS .................... 192
TABLE OF CONTENTS
CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST THE ESTATE
............................................................ 207
PAYMENT OF DEBTS ........................... 208
Writ of Amparo.............................236
COVERAGE ........................................... 236
DISTINGUISH FROM WRIT OF HABEAS
CORPUS AND HABEAS DATA (ANNEX C)
........................................................... 236
DISTINGUISH WRIT OF AMPARO FROM
SEARCH WARRANT ........................... 237
WHO MAY FILE ..................................... 237
CONTENTS OF RETURN ....................... 237
OMNIBUS WAIVER RULE ..................... 238
EFFECT OF FAILURE TO FILE A RETURN
........................................................... 238
PROCEDURE FOR HEARING ON THE WRIT
........................................................... 238
INSTITUTION OF SEPARATE ACTIONS 238
EFFECT OF FILING OF A CRIMINAL ACTION
........................................................... 239
INTERIM RELIEFS AVAILABLE TO THE
PETITIONER AND RESPONDENT ......240
QUANTUM OF PROOF IN APPLICATION
FOR ISSUANCE OF WRIT:
TABLE OF CONTENTS
CRIMINAL
PROCEDURE
TABLE OF CONTENTS
Bail................................................ 280
NATURE ............................................... 280
WHEN A MATTER OF RIGHT; EXCEPTIONS
........................................................... 280
WHEN A MATTER OF DISCRETION ....... 281
HEARING OF APPLICATION FOR BAIL IN
CAPITAL OFFENSES ........................... 282
GUIDELINES IN FIXING AMOUNT OF BAIL
............................................................ 283
WHEN BAIL IS NOT REQUIRED ............. 283
INCREASE OR REDUCTION ................... 283
FORFEITURE AND CANCELLATION OF
BAIL ....................................................284
APPLICATION NOT A BAR TO OBJECTIONS
ON ILLEGAL ARREST, LACK OF OR
IRREGULAR PRELIMINARY
INVESTIGATION .................................284
HOLD/ALLOW DEPARTURE ORDER AND
BUREAU OF IMMIGRATION WATCHLIST
............................................................284
TABLE OF CONTENTS
Trial............................................... 303
INSTANCES WHEN PRESENCE OF
ACCUSED IS REQUIRED BY LAW ..............
REQUISITES BEFORE TRIAL CAN BE
SUSPENDED ON ACCOUNT OF ABSENCE
OF WITNESS ....................................... 303
TRIAL IN ABSENTIA ..............................304
REMEDY WHEN ACCUSED IS NOT
BROUGHT TO TRIAL WITHIN THE
PRESCRIBED PERIOD.........................304
REQUISITES FOR DISCHARGE OF
ACCUSED TO BECOME A STATE
WITNESS ............................................304
EFFECTS OF DISCHARGE OF ACCUSED AS
STATE WITNESS .................................305
DEMURRER TO EVIDENCE ....................305
TABLE OF CONTENTS
EVIDENCE
General Principles of Evidence .. 332
CONCEPT OF EVIDENCE ....................... 332
APPLICABILITY ...................................... 332
EVIDENCE IN CIVIL CASES VS. EVIDENCE
IN CRIMINAL CASES .......................... 332
PROOF VS. EVIDENCE .......................... 333
FACTUM PROBANS VERSUS FACTUM
PROBANDUM ..................................... 333
3 CLASSES OF EVIDENCE ACCORDING TO
FORM.................................................. 333
ADMISSIBILITY OF EVIDENCE ............... 333
BURDEN OF PROOF AND BURDEN OF
EVIDENCE ........................................... 335
PRESUMPTIONS ................................... 336
LIBERAL CONSTRUCTION OF THE RULES
OF EVIDENCE ..................................... 339
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) ............. 339
TABLE OF CONTENTS
RULES OF
PROCEDURE FOR
ENVIRONMENTAL
CASES
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
General Principles
REMEDIAL LAW
Prospectivity/ Retroactivity
Source
Substantive Law
It is that part of the
law which creates,
defines, or regulates
rights, concerning life,
liberty or property or
the powers of agencies
or instrumentalities for
the administration of
public affairs
Applicability
It is prospective in
application
It cannot be enacted
by the SC
PAGE 1
Remedial Law
It refers to the
legislation providing
means or methods
whereby causes of
action
may
be
effectuated, wrongs
redressed, and relief
obtained
It is also called
Adjective Law
It has no vested
rights
It governs acts and
transactions which
took
place
(retroactive)
The SC is expressly
empowered
to
promulgate
procedural rules
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
NATURE OF PHILIPPINE
COURTS
MEANING OF A COURT
PAGE 2
UP LAW BOC
CIVIL PROCEDURE
CLASSIFICATION
COURTS
OF
REMEDIAL LAW
PHILIPPINE
PAGE 3
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
DOCTRINE OF NON-INTERFERENCE
OR DOCTRINE OF JUDICIAL
STABILITY
PRINCIPLE OF JUDICIAL
HIERARCHY
Jurisdiction
JURISDICTION IN GENERAL
UP LAW BOC
CIVIL PROCEDURE
REQUISITES
FOR
A
VALID
EXERCISE OF JURISDICTION
JURISDICTION
PARTIES
OVER
REMEDIAL LAW
JURISDICTION
OVER
SUBJECT MATTER
THE
JURISDICTION
VERSUS
EXERCISE OF JURISDICTION
THE
THE
ERROR OF JURISDICTION AS
DISTINGUISHED FROM ERROR OF
JUDGMENT
Error of jurisdiction
Error of judgment
It is one which the
court may commit in
the exercise of its
jurisdiction [Cabrera v.
Lapid (2006)].
It includes errors of
procedure or mistakes
in the courts mistakes
in the courts findings
[Banco Filipino Savings
v. CA (2000)]
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
DOCTRINE OF PRIMARY
JURISDICTION
DOCTRINE OF
JURISDICTION
ADHERENCE
OF
OBJECTIONS TO JURISDICTION
OVER THE SUBJECT MATTER
UP LAW BOC
CIVIL PROCEDURE
EFFECT
OF
ESTOPPEL
ON
OBJECTIONS TO JURISDICTION
JURISDICTION
ISSUES
OVER
REMEDIAL LAW
THE
JURISDICTION OF THE
METROPOLITAN TRIAL
COURTS AND MUNICIPAL
TRIAL COURTS
JURISDICTION OF THE MTCs IN
CIVIL CASES
PAGE 7
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(iii)From
the
corresponding
declaration of the real property
tax
JURISDICTION
CLAIMS
OVER
SMALL
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 9
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
JURISDICTION OF THE
REGIONAL TRIAL COURTS,
FAMILY COURTS, AND
SHARIA COURTS
JURISDICTION OF THE RTC IN CIVIL
CASES
JURISDICTION
OF
COURTS [RA 8369]
FAMILY
PAGE 10
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Exclusive Jurisdiction
(1) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising
under the Code of Muslim Personal Laws;
(2) All cases involving disposition, distribution
and settlement of estate of deceased
Muslims, probate of wills, issuance of
letters of administration of appointment
administrators or executors regardless of
the nature or aggregate value of the
property;
(3) Petitions for the declaration of absence
and death for the cancellation and
correction of entries in the Muslim
Registries;
(4) All actions arising from the customary
contracts in which the parties are Muslims,
if they have not specified which law shall
govern their relations; and
(5) All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus and all
other auxiliary writs and processes in aid of
its appellate jurisdiction
Concurrent Jurisdiction
(1) With the Supreme Court in actions
affecting ambassadors, other public
ministers and consuls
(2) With the SC and CA in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies in petitions
for quo warranto, habeas corpus, and writ
of continuing mandamus on environmental
cases
Concurrent Jurisdiction
(1) Petitions of Muslim for the constitution of
the family home, change of name and
commitment of an insane person to an
asylum
(2) All other personal and legal actions not
mentioned in par 1 (d) wherein the parties
involved are Muslims except those for
forcible entry and unlawful detainer, which
shall fall under the exclusive jurisdiction of
the MTC.
PAGE 11
UP LAW BOC
CIVIL PROCEDURE
Cases Cognizable
(1) Offenses defined and punished under PD
1083
(2) Disputes relating to:
(a) Marriage
(b) Divorce
(c) Betrothal or breach of contract to marry
(d) Customary dowry (mahr)
(e) Disposition and distribution of property
upon divorce
(f) Maintenance
and
support
and
consolatory gifts (muta)
(g) Restitution of marital rights
(3) Disputes relative to communal properties
JURISDICTION
OF
SANDIGANBAYAN
REMEDIAL LAW
THE
PAGE 12
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
COURT
OF
PAGE 13
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
JURISDICTION OF THE
SUPREME COURT
JURISDICTION OF THE SUPREME COURT
IN CIVIL CASES
Exclusive Original Jurisdiction in petitions for
certiorari, prohibition and mandamus against
the CA, COMELEC, COA, CTA, Sandiganbayan
Concurrent Original Jurisdiction
(1) With Court of Appeals in petitions for
certiorari, prohibition and mandamus
against the RTC, CSC, Central Board of
Assessment Appeals, NLRC, Quasijudicial agencies, and writ of kalikasan, all
subject to the doctrine of hierarchy of
courts.
(2) With the CA and RTC in petitions for
certiorari, prohibition and mandamus
against lower courts and bodies and in
petitions for quo warranto, and writs of
habeas corpus, all subject to the doctrine
of hierarchy of courts.
PAGE 14
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
TOTALITY RULE
Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the claims
in all the claims of action, irrespective of
whether the causes of action arose out of the
same or different transactions [Sec.33 [1], BP
129].
Commencement of
Actions to Trial
ACTIONS
Actions in General: An ordinary suit in a court
of justice by which one party prosecutes
another for the enforcement/ protection of a
right or the prevention/redress of a wrong
[Santos v. Vda. De Caparas, (1959)]
An action is a formal demand of ones legal
rights in a court of justice in the manner
prescribed by the court or by the law.
Determinative fact which converts a claim into
an action or suit is the filing of the same with a
court of justice. (Herrera)
CIVIL
ACTIONS
PROCEEDINGS
vs.
SPECIAL
KINDS OF ACTION
(1) Civil or Criminal
(a) Civil one by which a party sues
another for the enforcement or
protection of a right, or the prevention
or redress of a wrong
(b) Criminal one by which the State
prosecutes a person for an act or
omission punishable by law
PAGE 15
UP LAW BOC
CIVIL PROCEDURE
Action
Special Proceeding
As to Parties
Involves 2 or more
Involves at least 1
parties
party or 2 or more
parties in proper
cases
As to cause of action
Involves a right and a May involve a right,
violation of such right but there need not
by the defendant be a violation of this
which causes some right
damage/prejudice
upon the plaintiff
As to formalities
Requires the
Requires no such
application of legal
formalities, as it
remedies in
may be granted upon
accordance with the
application
prescribed rules
As to governing rules
Ordinary rules of
procedure
REMEDIAL LAW
Ownership or
possession of
real property
is involved
Special rules of
procedure
Founded on
privity of real
estate
Filed in the
court where
the property
(or any
portion
thereof) is
situated
Personal Action
Personal
property is
sought to be
recovered or
damages for
breach of
Contract or the
enforcement of
a contract are
sought
Founded on
privity of
contract
Filed in the
court where the
plaintiff or any
of the
defendants
resides, at the
plaintiffs option
Mixed action
Founded on
both
The rules on
venue of real
actions
govern
Local action
One that could be
instituted
in
one
specific place [Manila
Railroad v. AttorneyGeneral (1911)]
Transitory action
One that could be
prosecuted in any one
of several places
[Manila Railroad v.
Attorney-General
(1911)]
Its venue depends
Venue depends upon upon the residence of
the location of the the plaintiff or the
property involved in defendant at the
the litigation (Riano) option of the plaintiff
(Riano)
PAGE 16
UP LAW BOC
CIVIL PROCEDURE
Directed
against the
thing itself
Action In
Personam
Directed
against
particular
persons
Action Quasi In
Rem
Directed against
particular
persons
Jurisdiction
Jurisdiction over
over the
the person of
Jurisdiction
person of
defendant is not
over the person
the
required as long
of defendant
defendant
as jurisdiction
required
not
over the res is
required
required
Proceeding to
subject the
Proceeding
Action to
interest of a
to
impose a
named
determine
responsibility or defendant over
the state or
liability upon a
a particular
condition
person directly property to an
of a thing
obligation or
lien burdening it
Action In
Rem
Action In
Personam
Judgment is
Judgment binging only
is binding
upon
on the
impleaded
whole
parties or their
world
successors in
interest
E.g.
E.g. Specific
Probate
performance,
proceeding,
action for
cadastral
breach of
proceeding
contract
REMEDIAL LAW
CAUSE OF ACTION
Action Quasi In
Rem
Judgment
binging upon
particular
persons
PAGE 17
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Cause of Action
The
delict
or
wrongful act or
omission committed
by the defendant in
violation of the
primary rights of the
plaintiff
Determined by the
Whether such acts give
averments in the
him right of action
pleading regarding
determined
by
the acts committed
substantive law
by the defendant
Effects:
(1) The filing of one or a judgment upon the
merits in any one is available as a ground
for the dismissal of the others. [Rule 2,
Sec.4]
(2) Filing of the 1st complaint may be pleaded
in abatement of the 2nd complaint, on the
ground of litis pendentia; or
(3) A judgment upon the merits in any of the
complaints is available as ground for
dismissal of the others based on res
judicata.
(4) A Motion to Dismiss under Rule 16 (litis
pendentia or res judicata) may be filed in
order that the complaint may be
dismissed.
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
MISJOINDER
ACTION
OF
CAUSES
OF
[Rule 2, Sec. 6]
PAGE 19
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rules:
(1) Every action must be prosecuted or
defended in the name of the real party in
interest. [Rule 3, Sec.2]
(2) The partys interest must be direct,
substantial and material [Sumalo v. Litton
(2006)].
(3) Husband and wife shall sue and be sued
jointly, except as provided by law [Rule 3,
Sec. 4]
(4) A minor or a person alleged to be
incompetent may sue or be sued, with the
assistance of his father, mother, guardian,
or if he has none, a guardian ad litem.
[Rule 3, Sec. 5]
(5) Minors (represented by their parents) are
real parties in interest under the principle
of intergenerational responsibility. [Oposa
v. Factoran (1993)]
(6) If a party becomes incompetent/
incapacitated during the pendency of the
action, the action survives and may be
continued by/against the incompetent/
incapacitated assisted by his legal
guardian or guardian ad litem [Rule 3, Sec.
18]
PAGE 20
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
INDISPENSABLE PARTIES
Who: An indispensable party is a real party-ininterest without whom no final determination
can be had of an action. [Rule 3, Sec.7]
A party who has such an interest in the
controversy or subject matter that a final
adjudication cannot be made, in his absence,
without injuring or affecting that interest.
[Riano]
The joinder of a party becomes compulsory
when the one involved is an indispensable
party. [Riano citing Rule 3, Sec.7]
A person is NOT an indispensable party if his
interest in the controversy or subject matter is
separable from the interest of the other
parties, so that it will not necessarily be
directly or injuriously affected by a decree
which does not complrete justice between
them. [Riano]
REPRESENTATIVE AS PARTIES
Who: Those acting in fiduciary capacity, such
as a trustee/guardian/executor/administrator
or a party authorized by law or ROC. [Rule 3,
Sec. 3]
PAGE 21
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
INDIGENT PARTIES
Who: An indigent is one who has no money or
property sufficient and available for food,
shelter, and basic necessities [Rule 3, Sec. 21]
ALTERNATIVE DEFENDANTS
Where the plaintiff is uncertain against whom
of several persons he is entitled to relief, he
may join any or all of them in the alternative,
although a right to relief against one may be
inconsistent with a right to relief against the
other. [Rule 3, Sec. 13]
COMPULSORY
JOINDER
OF
INDISPENSABLE PARTIES [Rule 3, Sec. 7]
Parties in interest without whom no final
determination can be had of an action shall be
joined either as plaintiffs or defendants
PAGE 22
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Effect:
(1) Neither misjoinder nor non-joinder of
parties is a ground for dismissal of an
action. [Rule 3, Sec. 11]
(a) Non-joinder of an indispensable party
is not a ground for outright dismissal.
Reasonable opportunity must be
given for his inclusion by amendment
of the complaint [Cortez v Avila
(1957)].
(b) In case of non-joinder of a necessary
party, if the court should find the
reason
for
such
omission
unmeritorious, it may order the
inclusion of such omitted necessary
party
(2) Parties may be dropped or added by order
of the court on motion of any party or on
its own initiative at any stage of the action
and on such terms as are just. [Rule 3,
Sec.11]
Permissive Joinder of
Parties
There
are
multiple
There is a single cause of
causes
of
action
action pertaining to
separately belonging to
numerous persons.
several persons.
Class Suit
CLASS SUIT
Requisites: [Rule 3, Sec. 12]
(1) Subject matter of the controversy is one of
common/general interest to many
persons;
(2) The persons are so numerous that it is
impracticable to join them all as parties
(i.e. impracticable to bring them all before
the court);
(3) Parties bringing the class suit are
sufficiently numerous and representative
of the class and can fully protect the
interests of all concerned;
(4) The representative sues/defends for the
benefit of all.
Class Suit
Derivative Suit
An action brought by
minority shareholders in
the name of the
corporation to redress
wrongs
committed
When the subject matter
against it, for which the
of the controversy is one
directors refuse to sue.
of common or general
interest
to
many
It is a remedy designed
persons, and the parties
by equity and has been
are so numerous that it
the principal defense of
is impracticable to bring
the
minority
them all before the
shareholders
against
court, one or more may
abuses by the majority.
sue or defend for the
benefit of all. [Rule 3,
In a derivative action, the
Sec. 12]
real party in interest is
the corporation itself,
not the shareholders
who actually instituted it
[Lim v. Lim Yu (2001))
PAGE 23
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Counsels duty:
(1) Inform court within 30 days after such
death of the fact thereof;
(2) Give the name and address of the legal
representatives.
PAGE 24
UP LAW BOC
ACTION ON CONTRACTUAL
CLAIMS [Rule 3, Sec. 20]
CIVIL PROCEDURE
MONEY
REMEDIAL LAW
Jurisdiction
Power of the court to
Place where the action
hear and decide a
is instituted
case
Jurisdiction over the
subject matter and
over the nature of the
May be waived
action is conferred by
law and cannot-be
waived
Requisites:
(1) The action must primarily be for recovery
of money/debt or interest thereon;
(2) The claim arose from express/implied
contract;
(3) Defendant dies before the entry of final
judgment in the court in which the action
was pending.
(4) The defendants death will not result in
the dismissal of the action.
Procedural
Substantive
VENUE
PAGE 25
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
EFFECTS OF STIPULATIONS ON
VENUE
PAGE 26
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(6) Complaint-in-intervention
(7) Reply
COMPLAINT [Rule 6, Sec. 3]
Function
(1) Its function is to inform the defendant
clearly and definitely of claims made
against him so that he may be prepared to
meet the issues at trial.
(2) It should inform the defendant of all
material facts on which the plaintiff relies
to support his demand.
(3) It should state the theory of a cause of
action which forms the bases of plaintiffs
claim of liability. [Tantuico v. Republic
(1991)]
PLEADINGS
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate
judgment [Rule 6, Sec. 1]
PLEADING v. MOTION
Pleading
Motion
Purpose: to submit a Purpose: to apply for
claim or defense for an order not included
appropriate judgment
in the judgment
Cannot be initiatory
as they are always
May be initiatory
made in a case
already filed in court
Always filed before
May be filed even
judgment
after judgment
Only 9 kinds of
Any application for
pleading are allowed
relief not by a
by the rules
pleading is a motion
May be oral when
made in open court or
Must be written
in the course of a
hearing or trial
KINDS OF PLEADINGS
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
COUNTERCLAIM
Rules on Counterclaims
(1) In an original action before the RTC, the
counterclaim
may
be
considered
compulsory regardless of the amount.
[Rule 6, Sec. 7]
(2) In the case of Agustin v. Bacalan (1985), if
a counterclaim is filed in the MTC in
excess of its jurisdictional amount, the
excess is considered waived.
(3) But in Calo v. Ajax (1968), the remedy
where a counterclaim is beyond the
jurisdiction of the MTC is to set off the
claims and file a separate action to collect
the balance.
UP LAW BOC
CIVIL PROCEDURE
Kinds of Counterclaims
Compulsory
counterclaim
One which arises out
of or is necessarily
connected with the
transaction
or
occurrence -that is the
subject matter of the
opposing
party's
claim.
Does not require for
its adjudication the
presence of third
parties of whom the
court cannot acquire
jurisdiction.
Barred if not set up in
the action.
REMEDIAL LAW
Permissive
counterclaim
It does not arise out of
nor is it necessarily
connected with the
subject matter of the
opposing
party's
claim.
Compulsory Counterclaim
(1) Requisites:
(a) It must arise out of, or be necessarily
connected
with,
the
transaction/occurrence that is the
subject matter of the opposing party's
claim;
(b) It does not require for its adjudication
the presence of third parties of whom
the court cannot acquire jurisdiction;
(c) It must be within the courts
jurisdiction both as to the amount and
the
nature.
[Regalado,
citing
Quintanilla v CA (1997)]
(2) General Rule: A compulsory counterclaim
not set up in the answer is deemed
barred.
Exceptions:
(a) If it is a counterclaim which either
matured or was acquired by a party
after serving his answer. In this case, it
may be pleaded by filing a
supplemental answer or pleading
before judgment. [Rule 11, Sec. 9]
Permissive Counterclaim
(1) Counterclaim is permissive if it does not
arise out of, nor is necessarily connected
with, the subject matter of the opposing
partys claim
(a) This is not barred even if not set up in
the action
PAGE 29
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Improper Cross-Claims
(1) Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
(2) The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and
executory (Ruiz, Jr. v. CA, 1993)
(3) A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of
default because then the cross-claimant
would re-obtain a standing in court as
party litigant
CROSS-CLAIM
Requisites:
(1) A claim by one party against a co-party;
(2) It must arise out of the subject matter of
the complaint or of the counterclaim;
(3) The cross-claimant is prejudiced by the
claim against him by the opposing party.
Cross-claim
Counterclaim
Against a
co-party
Against an
opposing party
Must arise
out of the
transaction
that is the
subject
matter of the
original
action or of a
counterclaim
therein
No need for
a leave of
court
PAGE 30
3rd Party
complaint
Against a
person not a
party to the
action
Leave of court
is needed
UP LAW BOC
3rd-party complaint
CIVIL PROCEDURE
Complaint in
intervention
3rd-party complain
REMEDIAL LAW
Additional Rules
(1) Leave of court to file a 3rd-party
complaint may be obtained by motion
under Rule 15.
(2) Summons on 3rd (4th/etc.) party
defendant must be served for the court to
obtain jurisdiction over his person, since
he is not an original party.
(3) Where the trial court has jurisdiction over
the main case, it also has jurisdiction over
the 3rd-party complaint, regardless of the
amount involved as a 3rd-party complaint
is merely auxiliary to and is a continuation
of the main action. [Republic v. Central
Surety (1968)]
(4) A 3rd-party complaint is not proper in an
action for declaratory relief.
Counterclaim
COMPLAINT-IN-INTERVENTION
Pleadings-in-Intervention [Rule 19, Sec. 3]
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
Definition - INTERVENTION is a remedy by
which a third party, not originally impleaded in
a proceeding, becomes a litigant therein to
enable him to protect or preserve a right or
interest which may be affected by such
proceeding.
PAGE 31
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
How to Intervene
(1) With leave of court, the court shall
consider the two factors
(2) Motion to intervene may be filed at any
time before rendition of judgment by trial
court
(3) Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties
Time to Intervene: [Rule 19, Sec. 2]
(1) General Rule: The motion to intervene
must be filed at any time before the
rendition of judgment by the trial court
(2) Exceptions:
(a) With respect to indispensable parties,
intervention may be allowed even on
appeal [Falcasantos v. Falcasantos]
(b) When the intervenor is the Republic
[Lim v. Pacquing]
(c) Intervention may be allowed after
judgment where necessary to protect
some interest which cannot otherwise
be protected, and for the purpose of
preserving the intervenors right to
appeal [Pinlac v. CA]
REPLY
The plaintiffs response to the defendant's
answer. The function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Rule 6, Sec. 10]
Effect of Failure to Reply
(1) General Rule - Filing a reply is merely
optional. New facts that were alleged in
the answer are deemed controverted
should a party fail to reply thereto.
(2) Exception When a Reply is necessary
(a) To set up affirmative defenses on the
counterclaim [Rosario v. Martinez]
(b) Where the answer alleges the defense
of usury in which case a reply under
oath should be made; otherwise, the
allegation of usurious interest shall be
deemed admitted [Rule 8, Sec. 8; Sun
Bros. v. Caluntad]
PAGE 32
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
CAPTION
Caption - Courts name, actions title (i.e.
parties names) and docket number.
Body - Pleadings designation, allegations of
party's claims/defenses, relief prayed for and
pleadings date.
PAGE 33
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 34
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
ALLEGATIONS IN A PLEADING
[Rule 8]
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Modes of Denial:
(1) Specific Absolute Denial - Defendant
must specify each material allegation of
fact the truth of which he does not admit
(a) Whenever applicable, he shall set
forth the substance of the matters
which he will rely upon to support the
denial
Exceptions:
(1) Lack of jurisdiction over the subject
matter;
(2) Litis pendentia between same parties for
the same cause
(3) Res judicata
(4) Action barred by statute of limitations.
FAILURE TO PLEAD COMPULSORY
COUNTERCLAIM AND CROSS-CLAIM
UP LAW BOC
Order of default
Issued by the court on
plaintiffs motion, for
failure
of
the
defendant to file his
responsive pleading
seasonably
Interlocutory
-Not appealable
CIVIL PROCEDURE
Judgment by default
REMEDIAL LAW
PAGE 38
UP LAW BOC
CIVIL PROCEDURE
PAGE 39
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
If motion denied:
Defendant allowed to file an
answer
If motion granted:
Court issues order of default
and renders judgment or
require plaintiff to submit
evidence ex parte
PAGE 40
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 41
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 42
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Substituted Service
At the time of delivery of the copy to the clerk
of court together with proof of failure of both
personal service and service by mail
PAGE 43
UP LAW BOC
CIVIL PROCEDURE
When pleading is
deemed filed
REMEDIAL LAW
Proof of filing
Personally
Upon receipt of the Written/stamped
pleading by the clerk of acknowledgment by the
court
clerk of court
By registered mail
Registry receipt, and
affidavit of the person
who did the mailing with:
(a) Full statement of the
date/place
of
depositing the mail in
the post office in a
On the date the
sealed
envelope
pleading was deposited
addressed to the
with the post office
court
PROOF OF FILING
(1) Filing is proved by its existence in the
record of the case [Rule 13, Sec. 12]
(2) If it is not in the record:
PAGE 44
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
AMENDMENT AND
SUPPLEMENTAL PLEADINGS
HOW TO AMEND PLEADINGS [Rule 10,Sec.
1]
(1) Adding an allegation of a party;
(2) Adding the name of a party;
(3) Striking out an allegation of a party;
(4) Striking out the name of a party;
(5) Correcting a mistake in the name of a
party; and
(6) Correcting a mistaken or inadequate
allegation or description in any other
respect
Types of Amendments:
(1) Amendment as a matter of right
(2) Amendment as a matter of judicial
discretion
AMENDMENTS AS A MATTER OF RIGHT
[Rule 10, Sec. 2]
When amendment is allowed as a matter of
right:
(1) Once as a matter of course
(a) A 2nd or subsequent amendment must
now be with leave of court, not a
matter of right anymore
(2) Instances:
(a) Substantial amendment before
responsive pleading is filed
(i) Amendment of complaint before
an answer is filed.
(ii) Amendment of answer before a
reply is filed or before the period
for filing a reply expires
FORMAL AMENDMENTS
(Rule 10, Sec. 4)
When an amendment is formal:
(1) When there is a mere defect in the
designation of the parties;
(2) Other clearly clerical or typographical
errors
PAGE 45
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
SUPPLEMENTAL PLEADINGS
Definition: One which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
Supplemental Pleadings
Grounds
for
the
supplemental pleading
arose after the 1st
pleading was filed
Always a matter of
discretion
Merely
supplements
the the original (i.e. Exists
side by side with the
original pleading)
When an amended A
supplemental
pleading is filed, a pleading does not
new copy of the require the filing of a
entire pleading must new copy of the entire
be filed
pleading
Supersedes
original
PAGE 46
UP LAW BOC
CIVIL PROCEDURE
Limitations:
(1) Claims or defenses which have matured
after the filing of the original pleadings
cannot be averred in a supplemental
pleading (it may be the subject of an
amendment)
(2) Supplemental pleadings are not allowed
on separate and distinct causes of action
(a) A supplemental pleading may raise a
new cause of action as long as it has
some relation to the original cause of
action set forth in the original
complaint. [Ada v. Baylon (2012)]
(3) The admission or non-admission of a
supplemental pleading is not a matter of
right but is discretionary on the court
REMEDIAL LAW
SUMMONS
Definition: A coercive force issued by the court
to acquire jurisdiction over the person of the
defendant
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN
REM, AND QUASI IN REM
VOLUNTARY APPEARANCE
Any form of appearance in court, by the
defendant, by his agent authorized to do so, or
by attorney, is equivalent to service except
where such appearance is precisely to object
the jurisdiction of the court over the person of
the defendant [Carballo v. Encarnacion]
Purposes of Summons
(1) For Actions in Personam
(a) To acquire jurisdiction over the person
of the defendant in a civil case;
(b) To give notice to the defendant that
an action has been commenced
against him.
General
Rule:
Defendant's
voluntary
appearance in the action shall be equivalent
to service of summons;
PAGE 47
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
How Done:
(1) By handing a copy of summons to him; or
(2) If he refuses to receive it, by tendering it to
him
Personal Service of
Pleadings
Personal Service of
Summons on
Defendant
Rule 14, Sec. 6
PAGE 48
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
How Done:
(1) By leaving copies of the summons at the
defendants residence with some person
of suitable age and discretion residing
therein; or
(2) By leaving the copies at defendants office
or regular place of business with some
competent person in charge thereof
Necessary Requisite: For substituted service of
summons to be valid, it is necessary to
establish the following:
(1) The impossibility of the personal service of
summons within a reasonable time
(2) The efforts exerted to locate the person to
be served; and
(3) Service upon:
(a) A person of sufficient age and
discretion residing in the same place
as defendant or
(b) Some competent person in charge of
his office or regular place of business
[Spouses Ventura v. CA, 1987]
CONSTRUCTIVE
PUBLICATION)
SERVICE
(BY
Meaning of RESIDENCE
(1) For a substituted service to be valid,
summons served at the defendants
residence must be served at his residence
AT THE TIME OF SERVICE; not his former
place of residence
(2) dwelling house or residence refers to
the dwelling house at the time of service
(3) They refer to the place where the person
named in the summons is living at the
time of when the service is made, even
though he may be temporarily out of the
country at that time [Venturanza v. CA]
PAGE 49
UP LAW BOC
CIVIL PROCEDURE
The Rule on Non-Resident Defendants (Extraterritorial Service); [Rule 14, Sec. 15]
REMEDIAL LAW
Service of Summons
Upon any or all the
defendants being sued under
common name; or person in
charge of the office
UP LAW BOC
CIVIL PROCEDURE
Defendant
Service of Summons
Service may be done on:
(1) The resident agent;
Foreign
(2) If no resident agent;
private
(a) The
government
juridical
official designated by
entity [Sec.
law; or
12]
(b) Any officer or agent of
the corporation within
the Philippines
In case defendant is the
Republic, by serving upon the
Solicitor General
Public
In case of a province, city or
corporations municipality, or like public
[Sec. 13]
corporations, by serving on its
executive head or on such
other officer or officers as the
law or the court may direct
REMEDIAL LAW
MOTIONS
MOTIONS IN GENERAL
DEFINITION OF A MOTION
A motion is an application for relief other than
by a pleading. [1a]
PROOF OF SERVICE
The proof of service of summons [Rule 14, Sec.
18]:
(1) Shall be made in writing
(2) It shall:
(a) Set forth the manner, place, date of
service
(b) Specify any papers which may have
been served with the process and the
name of the person who received the
same
(c) Shall be sworn to when made by a
person, other than the sheriff or his
deputy
Pleading
Contains allegations
of the ultimate facts
Prays for a relief
Grant
of
relief
extinguishes
the
action (final relief)
Always in writing
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) If the motion is one which the court can
hear ex parte.
(2) If the court is satisfied that the rights of
the adverse parties are not affected by the
motion.
(3) If the party is in default because such a
party is not entitled to notice.
PAGE 52
UP LAW BOC
CIVIL PROCEDURE
MOTIONS
FOR
PARTICULARS
BILL
REMEDIAL LAW
OF
DEFINTION
It is a detailed explanation respecting any
matter which is not averred with sufficient
definiteness/particularity in the complaint as
to enable a party to properly prepare his
responsive pleading or to prepare for trial.
[Rule 12, Sec. 1]
PAGE 53
UP LAW BOC
CIVIL PROCEDURE
Bill of Particulars
Purpose is to enable a
party
bound
to
respond to a pleading
to get more details
about matters which
are alleged generally
or which are indefinite
and vague, so as to
properly guide such
party in answering the
pleading and to avoid
surprise in the trial of
the case
TO
Intervention
Purpose is to enable a
person not yet a party
to an action, yet
having a certain right
or interest in such
action, the opportunity
to appear and be
joined so he could
assert or protect such
right or interest
Available
to
any
person not yet a party
to the action at any
Available
to
the
time
after
the
defendant before he
commencement of an
files his responsive
action, even during the
pleading
proceeding, but not
after the trial has been
concluded
REMEDIAL LAW
Effect of Motion:
(1) If the motion is granted, in whole or in
part,
(a) The movant can wait until the bill of
particulars is served on him by
opposing party
(b) Then he will have the balance of the
reglementary period within which to
file his responsive pleading
(2) If the motion is denied
(a) He will still have such balance of the
reglementary period to file his
responsive pleading, counted from
service of the order denying his
motion
FILE
MOTION TO DISMISS
IN GENERAL
Definition A remedy of the defendant, or the
responding party in general, which attacks the
entire pleading and seeks its dismissal based
on:
(1) Grounds which are patent on the face of
the complaint;
(2) Defenses available to the defendant at the
time of the filing of the complaint
PAGE 54
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) Cases where the court may dismiss a case
motu propio; [Rule 9, Sec. 1]
(2) Failure to prosecute; [Rule 17, Sec. 3]
(3) Sec. 4, Revised Rule on Summary
Procedure.
PAGE 55
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Litis pendentia
Improper Venue
Unless and until the defendant objects to the
venue in a MTD prior to a responsive pleading,
the venue cannot truly be said to have been
improperly laid since, for all practical intents
and purposes, the venue though technically
wrong may yet be considered acceptable to
the parties for whose convenience the rules on
venue had been devised. Improper venue may
be waived and such waiver may occur by
laches. [Diaz v. Adiong (1993)]
Res Judicata
Requisites:
(1) Former judgment rendered by a court
having jurisdiction over the subject matter
and over the parties;
(2) Judgment must be a final judgment;
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Statute of Limitations
Prescription applies only when the complaint
on its face shows that indeed the action has
already prescribed.
PAGE 57
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
No cause of action
Insufficiency
of
factual basis for the
action
Non-Compliance
with
a
Condition
Precedent
Where the plaintiff has not exhausted all
administrative remedies, the complaint not
having alleged the fact of such exhaustion,
the same may be dismissed for lack of cause
of action [Pineda v. CFI Davao, et al.].
Extinguished Claim
That the claim/demand set forth in the
plaintiff's pleading has been paid, waived,
abandoned or otherwise extinguished.
PAGE 58
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
RESOLUTION OF MOTION
During the hearing of the motion: Parties shall
submit:
(1) Their arguments on questions of law
(2) Their evidence on questions of fact [Rule
16, Sec. 2]
(a) Exception: Those not available at that
time
Remedies of Defendant:
(1) The movant shall file his answer within
the balance of the period described in
Rule 11 to which he was entitled at the
time of serving his motion, but not less
than 5 days in any event.
(a) If pleading is ordered to be amended,
he shall file his answer within the
period prescribed by Rule 11 counted
from service of amended pleading
unless the court provides a longer
period
PAGE 59
UP LAW BOC
CIVIL PROCEDURE
Motion to dismiss
Grounded
on
preliminary
objections
May be filed by any
defending
party
against whom a
claim is asserted in
the action
Should be filed within
the time for but prior
to the filing of the
answer
of
the
defending party to
the
pleading
asserting the claim
against him
If denied, defendant
must file an answer,
or else he may be
declared in default
AS
If granted, plaintiff
may appeal or if
subsequent case is
not barred, he may
re-file the case
REMEDIAL LAW
Demurrer to evidence
Based on insufficiency
of evidence
May be filed only by
the defendant against
the complaint of the
plaintiff
May be filed for the
dismissal of the case
only after the plaintiff
has completed the
presentation of his
evidence
If denied, defendant
may present evidence
If granted, plaintiff
appeals and the order
of
dismissal
is
reversed, defendant
loses his right to
present evidence
DISMISSAL OF ACTIONS
PAGE 60
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 17
Section 3
Dismissal
is
not
Dismissal is at the procured by plaintiff
instance
of
the though justified by
plaintiff
causes imputable to
him
Dismissal is a matter
of procedure, without Dismissal is a matter
prejudice
unless of
evidence,
an
otherwise stated in adjudication on the
the court order or on merits
motion to dismiss
Dismissal is without
prejudice to the right
of
defendant
to
prosecute
his Dismissal is without
counterclaim in a prejudice to the right
separation
action of
defendant
to
unless within 15 days prosecute
his
from notice of motion counterclaim on the
he manifests his same or separate
intention to have his action
counterclaim
resolved in the same
action
Effect on Counterclaim
If counterclaim has been pleaded by
defendant prior to service upon him of
plaintiffs motion for dismissal, dismissal shall
be limited to the complaint
Remember that if the civil case is dismissed,
so also is the counterclaim filed therein
o It was held that if the court does not have
jurisdiction to entertain the main action of
the case and dismiss the case, then the
compulsory counterclaim, being ancillary
to the principal controversy must likewise
be
dismissed [Metals
Engineering
Resources v. CA]
PAGE 61
Section 2
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) The court declares otherwise, without
prejudice to the right of the defendant to
prosecute his counter-claim in the same
or separate action
(2) If court has not yet acquired jurisdiction
over the person of the defendant
Effect on Counterclaim
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action, just like the grant of that
remedy in Sec. 6, Rule 16
In this section (as well as in Sec. 6, Rule 16),
defendant is not required to manifest his
preference within a 15-day period as in Sec. 2
The motions to dismiss in this section and in
Sec. 6, Rule 16, are filed by defendant who
perforce has already deliberated upon the
course of action he intends to take on his
counterclaim and which he may even
manifest right in his motion to dismiss
The dismissal in Sec. 2 is at the instance of
plaintiff, hence, defendant is granted the
time and duty to manifest preference within
15 days from notice, after an opportunity to
study the situation
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
DISMISSAL OF COUNTERCLAIM,
CROSS-CLAIM, OR THIRD-PARTY
COMPLAINT
PRE-TRIAL
CONCEPT OF PRE-TRIAL
Pre-trial is Mandatory
Vital
objective:
the
simplification,
abbreviation, and expedition of the trial, if
not indeed its dispensation
Mandatory nature is addressed to both
court and parties:
o Court must set the case for pre-trial and
notify the parties as well as counsel to
appear
Parties with their counsel are obliged to
obey the order of the court to that effect
PAGE 63
UP LAW BOC
CIVIL PROCEDURE
Primary Objective
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
REMEDIAL LAW
NOTICE OF PRE-TRIAL
Plaintiff
Defendant
Effect
Cause for dismissal of the action
which will be with prejudice,
unless otherwise ordered by the
court
Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on the
basis thereof
PAGE 64
UP LAW BOC
Default by defendant
[Rule 9, Sec. 3]
CIVIL PROCEDURE
Failure to appear by
defendant [Rule 18,
Sec. 5]
PROCEEDINGS AFTER
TERMINATION OF PRE-TRIAL
Record of Pre-Trial: The pre-trial proceedings
shall be recorded. Upon termination of such
proceedings, the court shall issue the pre-trial
order.
Contents of Pre-Trial Order:
(1) Matters taken up in the conference;
(2) Action taken thereon;
(3) Amendments allowed on the pleadings;
(4) Agreements/admissions made by the
parties as to any matters considered;
(5) Should the action proceed to trial, the
explicit definition and limit of the issues to
be tried.
PRE-TRIAL BRIEF;
FAILURE TO FILE
EFFECT
REMEDIAL LAW
OF
PAGE 65
UP LAW BOC
CIVIL PROCEDURE
On Compromise:
Upon manifestation of the parties of their
willingness to discuss a compromise, the TC
should order the suspension of the
proceedings to allow them reasonable time
to discuss and conclude an amicable
settlement.
If despite all efforts exerted by the TC and
the parties the settlement conference still
fails, then the action should have continued
as if no suspension had taken place.
[Goldloop Properties v. CA (1992)]
NOTE: AM 03-1-09-SC - No termination of
pre-trial for failure to settle
Civil Case
[AM No. 03-1-09] requires
the
proceedings
during
the
preliminary
conference to be
recorded
in
the
Minutes
of
Preliminary
Conference to be
signed by both parties
and/or counsel.
(Note: either party or
his counsel is allowed
to sign)
The sanctions for nonappearance
are
imposed upon the
plaintiff
and
the
defendant [Rule 18,
Sec. 4]
A pre-trial brief is
specifically required to
be submitted [Rule 18,
Sec. 6]
Made
after
the
pleading has been
served and filed [Rule
18, Sec. 1]
Considered
the
possibility
of
an
amicable settlement
as
an
important
objective [Rule 118,
Sec. 2(a)]
The arrangements and
admissions in the pretrial are not required
to be signed by both
parties
and
their
counsels. Under the
Rules, they are instead
to be contained in the
record of pre-trial and
pre-trial order [Rule 18,
Sec. 7]
Criminal Case
Ordered by the court
and no motion to set
the case for pre-trial is
required from either
the prosecution or the
defense [Rule 118, Sec.
1]
Ordered by the court
after arraignment and
within 30 days from
the sate the court
acquired jurisdiction
over the person of the
accused [Rule 118, Sec.
1]
Does not include the
considering of the
possibility of amicable
settlement of ones
criminal liability as
one of its purposes
[Rule 118, Sec. 1]
(Stricter procedure)
All agreements or
admissions made or
entered during the
pre-trial conference
shall be reduced in
writing and signed by
both the accused and
counsel;
otherwise,
they cannot be used
against the accused.
[Rule 118, Sec. 2]
REMEDIAL LAW
Criminal Case
Sanctions
imposed upon
counsel
for
accused
or
prosecutor [Rule
Sec. 3]
are
the
the
the
118,
ALTERNATIVE DISPUTE
RESOLUTION (ADR)
PAGE 66
UP LAW BOC
CIVIL PROCEDURE
In Relation to Pre-Trial:
(1) At the start of the pre-trial conference, the
judge shall immediately refer the parties
and/or their counsel if authorized by their
clients to the PMC mediation unit for
purposes of mediation if available.[AM No.
03-1-09-SC]
REMEDIAL LAW
(2) Mediation
(a) a voluntary process in which a
mediator, selected by the disputing
parties, facilitates communication and
negotiation, and assist the parties in
reaching a voluntary agreement
regarding a dispute
(b) includes conciliation
(3) Mini-Trial
(a) A structured dispute resolution
method in which the merits of a case
are argued before a panel comprising
senior decision makers with or without
the presence of a neutral third person
after which the parties seek a
negotiated settlement
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 68
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PRE TRIAL
NO SETTLEMENT
Agreements made by
parties; Amendments
to pleading; Schedule
of Trial
FAILURE TO APPEAR
If plaintiff is absent
when so required to
attend, court may
dismiss the case
AMICABLE
SETTLEMENT
If defendant is absent,
court may hear
evidence of plaintiff ex
parte
TRIAL
If evidence is
insufficient to prove
plaintiffs cause of
action or defendants
counterclaim, court
rules in favor of either
one or dismisses the
case
COURT RENDERS
DECISION
PAGE 69
UP LAW BOC
CIVIL PROCEDURE
INTERVENTION
REMEDIAL LAW
TIME TO INTERVENE
How Intervention is Done
(1) By a motion to intervene
(2) Attaching the pleading-in-intervention to
the motion
(3) Copies served on the original parties [Rule
19, Sec. 2]
intervenor
is
an
Pleadings-in-Intervention:
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
(3) Answer to complaint-in-intervention [Rule
19, Sec. 4] - It must be filed within 15 days
from notice of the order admitting the
complaint-in-intervention,
unless
a
different period is fixed by the court.
PAGE 70
UP LAW BOC
CIVIL PROCEDURE
SUBPOENA
SUBPOENA AD TESTIFICANDUM
A process directed to a person requiring him
to attend and to testify at the hearing or the
trial of an action, or at any investigation
conducted by competent authority or for the
taking of his deposition
Summons
An order to answer
complaint
Served
on
defendant
REMEDIAL LAW
the
6]
PAGE 71
UP LAW BOC
CIVIL PROCEDURE
COMPELLING ATTENDANCE
WITNESSES; CONTEMPT
REMEDIAL LAW
OF
MODES OF DISCOVERY
General Rule:
(1) The court which issued the subpoena may
issue a warrant for the arrest of the
witness and make him pay the cost of
such warrant and seizure, if the court
should determine that his disobedience
was willful and without just cause [Sec. 8]
Modes:
(1) Depositions pending actions Rule 23
(2) Depositions before action or pending
appeal Rule 24
(3) Interrogatories to parties Rule 25
(4) Admission by adverse party Rule 26
(5) Production or inspection of documents or
thing Rule 27
(6) Physical and mental examination of
persons Rule 28
DEPOSITIONS
[Rule 23]
PENDING
ACTION
Sec. 4]
Grounds:
(1) For quashal of subpoena duces tecum:
(a) It is unreasonable and oppressive
PAGE 72
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Scope of Examination
(1) Matter which is relevant to the subject of
the pending action made by the pleadings
or likely to arise under the pleadings
(2) Matter that is not privileged
(3) As well as:
(a) The existence, description, nature,
custody, condition and location of any
books, documents, or other tangible
things; and
(b) The identity and location of persons
having knowledge of relevant facts
[Rule 23, Sec. 2]
Deponent
Any person
Use
By any party for
contradicting
or
impeaching
the
testimony
of
deponent as witness
A party or anyone
who at the time of
the deposition was
an officer, director, or
managing agent, of a By an adverse party
public or private for any purpose
corporation
or
partnership,
or
association which is a
party
By any party for any
Witness, whether or purpose if the court
not a party
finds the 5 instances
occurring
PAGE 73
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 74
UP LAW BOC
CIVIL PROCEDURE
Error and
Irregularities
Objections to
the form of
written
interrogatories
under Sec. 25
and 26
In the manner
in
which
testimony
is
transcribed or in
the preparation
under Sec. 17,
19, 20, and 26
REMEDIAL LAW
Effect
Unless
reasonable
objection thereto is made at
the time of taking the
deposition
Waived
Unless served in writing
upon
the
party
propounding them within
the time allowed for serving
succeeding cross or other
interrogatories and within 3
days after service of last
interrogatories authorized
Waived
Unless motion to suppress
depositions or some part
thereof is made with
reasonable
promptness
after such defect is
ascertained, or with due
diligence might have been
ascertained
PAGE 75
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 76
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
WRITTEN INTERROGATORIES TO
ADVERSE PARTIES [Rule 25]
Purpose - This mode of discovery is availed of
by the party to the action for the purpose of
eliciting material and relevant facts from any
of the adverse party. [Rule 25, Sec. 1]
Grounds:
(1) They require the statements of
conclusions of law or answers to
hypothetical questions or opinion, or mere
hearsay, or matters not within the
personal knowledge of the interrogated
party
(2) Frivolous interrogatories need not be
answered [Herrera]
Manner of Service:
(1) Without leave of court After answer has
been served; and for the first set of
interrogatories
(2) With leave of court before the answer has
been served; and for subsequent sets of
interrogatories
Written
PAGE 77
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Interrogatories to
Parties
How made:
(1) A party files and serves upon any other
party a written request
(2) Copies of the documents shall be served
with the request unless already furnished
PAGE 78
UP LAW BOC
CIVIL PROCEDURE
Procedure:
(1) A motion must be filed by the party
seeking the production or inspection
of documents and things and the
motion must show good cause
supporting the same. [Rule 27, Sec. 1]
PRODUCTION OR INSPECTION OF
DOCUMENTS OR THINGS [Rule 27]
Subpoena Duces
Tecum
A
means
Essentially a mode compelling
of discovery
production
evidence
Court Order:
(1) The court may:
(a) Order any party to produce and
permit the inspection and copying or
photographing,
(i) By or on behalf of the moving
party
(ii) Of any designated documents,
papers, books, accounts, letters,
photographs, objects or tangible
things, not privileged, which
constitute or contain evidence
material to any matter involved in
the action
(iii) And which are in his possession,
custody or control
of
of
to
REMEDIAL LAW
of Disobedience
see constitutes contempt
of court
PAGE 79
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
How Done:
(1) Motion for examination is filed
(2) Filed in the court in which the action is
pending
(3) Court may, in its discretion, order him to
submit to a physical or mental
examination by a physician
[Rule 28]
When available: In an action in which the
mental or physical condition of a party is in
controversy. [Rule 28, Sec. 1]
- NOTE: It is the mental and physical
condition of a PARTY not a WITNESS
that is in controversy
CONSEQUENCES OF REFUSAL TO
COMPLY
WITH
MODES
OF
DISCOVERY [Rule 29]
Refusal to
Comply with
Modes of
Discovery
Sanctions
PAGE 80
UP LAW BOC
Refusal to
Comply with
Modes of
Discovery
CIVIL PROCEDURE
Refusal to
Comply with
Modes of
Discovery
Sanctions
(2) A refusal to answer after
being directed by court to
do so may be constituted
as contempt of court
REMEDIAL LAW
Sanctions
Refusal to be
Cite the disobedient deponent
Sworn [Sec.
in contempt of court
2]
The court may make the
following orders:
(1) Prohibit the disobedient
party to introduce evidence
of physical or mental
condition
(2) Refuse to allow the
disobedient
party
to
Refusal to
support or oppose claims
answer
or defenses
designated (3) Strike out pleadings or
questions or
parts thereof
refusal to (4) Stay further proceedings
produce (5) Dismiss the action or
documents
proceeding or any part
or to submit
thereof
to physical or (6) Render a judgment by
mental
default
against
examination
disobedient party
[Sec. 3]
(7) Direct the arrest of any
party disobeying any of
such orders except an
order to submit to a
physical
or
mental
examination
(8) Other orders as may be
just
TRIAL
A trial is the judicial process of investigating
and determining the legal controversies,
starting with the production of evidence by the
plaintiff and ending with his closing
arguments [Acosta v. People (1962)].
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
because it actually embraces several stages in
the litigation. It includes the pre-trial and the
determination of granting or denying a
motion. [Trocio v. Labayo (1973)]
PAGE 81
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
ADJOURNMENTS AND
POSTPONEMENTS
Stipulation Of Facts in
Civil Cases
May be signed by the
counsel alone who
has an SPA
May be made verbally
or in writing
Stipulation Of Facts in
Criminal Cases
Must be signed by
both counsel and
accused
Strict; it must always
be in writing
REQUISITES OF
POSTPONE TRIAL
Exceptions:
(1) Provisions on separate trials under Rule 31,
Sec. 2
(2) When for special reasons the court directs
otherwise
MOTION
TO
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
CONSOLIDATION OR SEVERANCE
OF HEARING OR TRIAL [Rule 31]
CONSOLIDATION
DELEGATION OF RECEPTION OF
EVIDENCE [Rule 30, Sec. 9]
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Powers of Commissioner:
(1) Exercise power to regulate the proceeding
before him
(2) Do all acts and take all measures
necessary or proper for the efficient
performance of his duties
(3) Swear witnesses
(4) Issue subpoena and subpoenas duces
tecum
(5) Rule upon the admissibility of evidence
(a) UNLESS otherwise provided in the
order of reference
REFERENCE BY CONSENT
The court may order any or all of the issues in
a case to be referred to a commissioner by
written consent of BOTH parties. [Rule 32, Sec.
1]
Commissioners are to be:
(1) Agreed upon by the parties; or
(2) Appointed by the court
UP LAW BOC
CIVIL PROCEDURE
(2) Contents:
(a) Report in writing upon the matters
submitted to him by the order of
reference
(b) When his powers are not specified or
limited, he shall set forth his findings
of fact and conclusions of law in his
report
(c) He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if
any, of testimonial evidence presented
before him
REMEDIAL LAW
DEMURRER TO EVIDENCE
CONCEPTS:
Definition - A species of MTD that may be
invoked based on insufficiency of evidence (i.e.
upon the facts and the law the plaintiff has
shown no right to relief). [Rule 33, Sec. 1]
It is invoked after the plaintiff has presented
all the evidence available to him
Judgment on Demurrer to Evidence
It is a judgment rendered by the court
dismissing a case upon motion of defendant,
made after plaintiff has rested his case, on the
ground that upon the facts presented and the
law on the matter, plaintiff has not shown any
right to relief.
Distinctions
Demurrer to evidence
Motion to dismiss
Presented before a
It is presented after
responsive pleading
the plaintiff has
is made by the
rested his case
defendant
It may be based on
The ground is based
any
of
those
on the insufficiency
enumerated in Rule
of evidence
16
If the motion to
If the motion is
dismiss is denied, the
denied,
the
defendant may file
defendant
may
his
responsive
present his evidence
pleading
If the motion is
granted,
the
complaint
is
dismissed
The
plaintiffs
remedy is to appeal
PAGE 85
If the motion to
dismiss is granted,
the complaint is
dismissed
and
depending on the
ground,
the
complaint may be refiled
UP LAW BOC
CIVIL PROCEDURE
Denial of demurrer
Two scenarios:
Motion denied
xxx
Denial
is
INTERLOCUTORY
Sec. 1, Rule 36 (that
judgment
should
state clearly and
distinctly the facts and
the law on which it is
based)
will
NOT
apply.
The denial is NOT
appealable
Plaintiff's
remedy
would be to appeal.
However, if the order
granting
the
demurrer is reversed
on
appeal,
the
defendant loses his
right
to
present
evidence. [Rule 33,
Sec 1; Republic v.
Tuvera (2007)]
REMEDIAL LAW
An interlocutory order
and not appealable.
However, it may be
the subject of a
petition for certiorari
for GAD under Rule
65
[Katigbak
v.
Sandiganbayan
(2003)]
PAGE 86
UP LAW BOC
CIVIL PROCEDURE
Criminal Cases
JUDGMENTS IN GENERAL
The final ruling by a court of competent
jurisdiction regarding the rights and
obligations of the parties or other matters
submitted to it in an action/proceeding
[Macahilig v. Heirs of Magalit (2000)]
Requisites of a Valid Judgmeny
[Rule 36, Sec. 1; Art. VIII, Sec. 14, 1987
Constitution]
(1) Court/tribunal must be with authority to
hear and determine the matter before it;
(2) Court must have jurisdiction over the
parties and the subject matter;
(3) Parties must have been given an
opportunity to adduce evidence in their
behalf;
(4) Evidence must have been considered by
the tribunal in deciding the case; [Acosta
v. COMELEC (1998)]
(5) Judgment must be in writing, personally
and directly prepared by the judge. A
verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan
(2004)]
(6) Judgment must state clearly the facts and
the law upon which the decision is based,
signed by the judge and filed with the
clerk of court. [Rule 35, Sec. 1]
The judgment of
dismissal is
appealable.
If plaintiff appeals and
judgment is reversed
by the appellate court,
it will decide the case Judgment of acquittal
on the basis of
is NOT appealable.
plaintiffs evidence
Double jeopardy sets
with the consequence
in.
that the defendant
already loses his right
to present evidence.
There is no res
judicata in dismissal
due to demurrer.
The plaintiff files a
motion to deny
motion to demurrer to
evidence
REMEDIAL LAW
Kinds of Judgment:
(1) JUDGMENT ON COMPROMISE - It is one
conferred on the basis of a compromise
agreement entered into between the
parties. It is immediately executory in the
absence of a motion to set aside on the
ground of FAME.
(2) JUDGMENT UPON CONFESSION - It is
one rendered by the court when a party
expressly agrees to the other partys claim
or acknowledges the validity of the claim
against him.
(a) JUDGMENT
BY
COGNOVIT
ACTIONEM After service, the
defendant, instead of entering a plea,
acknowledged and confessed that the
plaintiffs cause of action was just and
rightful.
PAGE 87
UP LAW BOC
CIVIL PROCEDURE
(b) JUDGMENT
BY
CONFESSION
RELICTA VERIFICATIONE After
pleading and before trial, the
defendant both: (a) confessed the
plaintiffs cause of action and (b)
withdrew his plea or other allegations,
whereupon judgment was entered
against him without proceeding to
trial.
REMEDIAL LAW
PAGE 88
UP LAW BOC
CIVIL PROCEDURE
CONTENTS OF A JUDGMENT
REMEDIAL LAW
JUDGMENT ON THE
PLEADINGS
Parts of a Judgment
(1) Body, Ratio decidendi, or Opinion of the
court It contains the findings of facts
and conclusions of law;
(2) Fallo, or Disposition of the case It is the
dispositive part of the judgment that
actually settles and declares the rights
and obligations of the parties, finally,
definitively, and authoritatively [Light Rail
Transit Authority v. CA (2004)]; The part of
the judgment that is subject to execution
[Riano]
(3) Signature of the judge
SUMMARY JUDGMENTS
PAGE 89
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
When
May file the motion only
after the answer has been
served
May file the motion any
time
PAGE 90
UP LAW BOC
CIVIL PROCEDURE
Summary
Judgment
Available only
in actions to
recover a
debt, or for a
liquidated
sum of money
or for
declaratory
relief
If filed by
plaintiff, it
must be filed
at any time
after an
answer is
served.
If filed by
defendant,
may be filed
at any time
even before
there is
answer
SUMMARY JUDGMENT
SUMMARY JUDGMENT v.
JUDGMENT ON THE PLEADINGS v.
JUDGMENT BY DEFAULT
Summary
Judgment
Based on the
pleadings,
depositions,
admissions,
and affidavits
Available to
both plaintiff
and
defendant
There is no
genuine issue
between the
parties
i.e. There may
be issues but
these are
irrelevant
10-day notice
required
May be
interlocutory
or on the
merits
Judgment on Judgment by
The Pleadings
Default
Available in
Available in
any action
any action
except
except
annulment of annulment of
marriage, or marriage, or
legal
legal
separation
separation
cases
cases
There is
already an
answer filed
There is no
answer filed
RENDITION OF JUDGMENTS
AND FINAL ORDERS
Judgment on Judgment by
The Pleadings
Default
Based on the
complaint
Based solely
and evidence,
on the
if
pleadings
presentation
is required
Generally
available only
to the plaintiff,
Available to
unless the
plaintiff
defendant
presents a
counterclaim
(1) In writing
(2) Personally and directly prepared by the
judge
(3) Stating clearly & distinctly the facts and
the law on which it is based
(4) Signed by the judged
(5) Filed with the clerk of court.
DEFINITION
JUDGMENT
OF
RENDITION
OF
The answer
fails to tender No issue as
an issue or
no answer is
there is an
filed by the
admission of
defending
material
party
allegations
3-day notice
required
REMEDIAL LAW
3-day notice
rule applies
PAGE 91
UP LAW BOC
CIVIL PROCEDURE
1987 Constitution]
(1) All cases filed must be decided or resolved
by the Supreme Court within 24 months
from the date of their submission for
decision.
(2) Unless reduced by the SC, within 12
months for lower collegiate courts and
within 3 months for all other lower courts.
AMENDMENTS TO JUDGMENT
DEFINITION
The entry of judgment refers to the physical
act performed by the clerk of court in entering
the dispositive portion of the judgment in the
book of entries of judgment after the same
has become final and executory. [Riano]
Exceptions:
(1) Clerical errors
(2) Nunc Pro Tunc entries
(3) Void judgments - Final judgment can be
annulled on the ground of fraud or lack of
jurisdiction or contrary to law [Panlilio v.
Garcia]
(4) Whenever circumstances transpire after
finality of the decision making its
execution unjust and inequitable:
(a) Cases where, because of supervening
events, it becomes imperative, in the
higher interest of justice, to direct its
modification in order to harmonize the
disposition with the prevailing
circumstances [Seavan Carrier Inc. v.
GTI Sportswear Corp.]
(b) Whenever it is necessary to
accomplish the aims of justice
[Pascual v. Tan]
REMEDIAL LAW
Entry of judgment
PAGE 92
UP LAW BOC
Amended/clarified
judgment
An
entirely
new
decision
and
supersedes
the
original judgment
Court
makes
a
thorough study of the
original judgment and
renders the amended
and
clarified
judgment only after
considering all the
factual and legal
issues
CIVIL PROCEDURE
REMEDIAL LAW
Supplemental decision
Does not take the
place of or extinguish
the original judgment
Post-Judgment
Remedies
MOTION FOR
RECONSIDERATION AND
MOTION FOR NEW TRIAL
REMEDIES BEFORE FINALITY OF
JUDGMENT
WHEN TO FILE:
DEFINITION
PAGE 93
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Form:
(1) The motion must comply with the
provisions of Rule 15 otherwise it will not
be accepted for filing and/or will not
suspend the running of the reglementary
period.
(2) It shall be made in writing, stating the
ground or grounds therefor
(3) Written notice shall be served by movant
on the adverse party
Partial grant
Rule 37, Sec. 7 allows the court to order a new
trial or grant reconsideration as to such issues
if severable without interfering with the
judgment or final order upon the rest.
REMEDY
WHEN
MOTION
DENIED; FRESH 15-DAY RULE
IS
PAGE 94
UP LAW BOC
CIVIL PROCEDURE
NOTES:
(1) This fresh period becomes significant only
when a party opts to file a motion for new
trial or reconsideration
(2) This rule does not refer to the period
within which to appeal from the order
denying the motion for reconsideration
but to the period within which to appeal
from the judgment itself.
Filing of a proper motion for new trial
interrupts the running of the period of appeal
which begins to run again from receipt of the
notice of the movant of the order denying his
motion (fresh 15 day period) [Phil. Commercial
and Industrial Bank v. Ortiz]
Remedies if Motion is DENIED:
(1) To appeal from the judgment or final
order itself
(2) The order denying the motion may itself
be assailed by a petition for certiorari
under Rule 65
(3) Rule 37, Sec. 9 says that an order denying
a motion for new trial or reconsideration is
NOT appealable
(a) NOTE HOWEVER: AM 07-7-12
amended Sec. 1 of Rule 41 by deleting
An order denying a motion for new
trial or reconsideration from the nonappealable orders.
Grounds:
(1) Fraud, accident,
mistake,
or
excusable
negligence
(2) Newly discovered
evidence
Note
the
qualifications
of each
Motion for
Reconsideration
Second motion from
the same party is
prohibited.
REMEDIAL LAW
APPEALS IN GENERAL
NATURE OF APPEAL
Motion for
Reconsideration
Grounds:
(1) Damages awarded
are excessive
(2) That evidence is
insufficient
to
justify the decision
or final order
(3) 3. That decision
or final order is
contrary to law
PAGE 95
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
MODES OF APPEAL
Petition for
Review
Appeal by
Rule 42
writ of error
Case is
Case decided
decided by by RTC in the
RTC in its exercise of its
original
appellate
jurisdiction jurisdiction
Petition for
Appealed to
review with
the CA
the CA
File a verified
petition for
review with
File notice of
CA.
appeal or
Pay docket
record of
and lawful
appeal with
fees and
court of
P500 as
origin and
deposit for
give a copy
costs with
to adverse
the CA.
party
Furnish RTC
and adverse
party a copy
of such
Within 15
Within 15
days from
days from
notice of
notice of
judgment for decision to
notice of
be reviewed
appeal and
or from
30 days for denial of a
records on
MFR or
appeal
MFNT
Petition for
Review on
Certiorari
Rule 45
Case decided by
the RTC, CA,
CTA, and
Sandiganbayan
Appealed to the
SC
File verified
petition for
review on
certiorari with
the SC.
Pay docket and
lawful fees and
P500 for costs.
Submit proof of
service of a copy
to the lower
court and
adverse party
Within 15 days
from notice of
judgment or
order of denial
of MFR or
MFNT
UP LAW BOC
CIVIL PROCEDURE
Period to Appeal
PERIOD OF APPEAL
Extensions
MTC to RTC
By notice of
appeal; within 15
No
days from notice of extensions
judgment or final
allowed
order
By record of
appeal;
within 30 days
from notice of
judgment or final
order
RTC to CA
By notice of
appeal;
No
Within 15 days
extensions
from notice of
allowed
judgment or final
order
By record of
appeal;
within 30 days
from notice of
judgment or final
order
Extensions
MTC to RTC to CA
The CA may
grant a 15 day
extension.
15 days from
No further
notice of the
extension shall
judgment or final
be granted
order OR from
except for the
denial of MR or
most compelling
MNT
reasons and in no
case longer than
15 days.
QJA to CA
15 days from
The CA may
notice of the
grant a 15 day
award, judgment, extension. No
final order or
further extension
resolution or
shall be granted
from date of last except for the
publication if
most compelling
required by law reasons and in no
OR from denial of case longer than
MR or MNT
15 days.
RTC to SC
RTC to CA to SC
CA to SC
Period to Appeal
REMEDIAL LAW
Effect of MR
or MNT
Interrupts
period to
appeal
15 days from
notice of
The SC may grant
judgment or final
a 30 day
order OR from
extension for
denial of
justifiable
petitioners MR or
reasons.
MNT.
Effect of
MR or
MNT
Fresh
period
to
appeal
from
denial
MR or
MNT
Fresh
period
to
appeal
from
denial
MR or
MNT
Fresh
period
to
appeal
from
denial
MR or
MNT
Interrupts
period to
appeal
PAGE 97
UP LAW BOC
CIVIL PROCEDURE
PERFECTION OF APPEAL
REMEDIAL LAW
PAGE 98
By Record on Appeal
(1) Record on appeal is required for the
following cases:
(a) Special proceedings
(b) In such other cases where multiple
appeals are allowed
(2) Form and contents of the record on
appeal: [Rule 41, Sec. 6]
(a) Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall transmit
to the RTC:
(i) Original record or record on
appeal
(ii) Together with transcripts and
exhibits
(b) Clerk shall make a certification that
the documents are complete
(c) Clerk shall also furnish the parties a
copy of his letter of transmittal of the
records to the appellate court
(3) Copy is served on the adverse party
(4) Payment in full of docket fees and other
lawful fees
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PERFECTION OF APPEAL
Two Scenarios:
APPLICABILITY OF RULE 41
PAGE 99
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PLEADINGS
FILED
[See
Rule
44,
Appellants Brief
(1) Filed within 45 days from receipt of notice
of clerk that all evidence is attached to
record
(2) Follow the Efficient Use of Paper Rule, one
original properly marked and 2 copies
with annexes
(3) Attach proof of service to adverse party
Contents:
(1) Subject index
(2) Assignment of Errors
(3) Statement of the Case
(4) Statement of Facts
(5) Statement of Issues
(6) Arguments
(7) Relief
(8) Copy of judgment or final order appealed
from
Appellees Brief:
(1) Filed within 45 days from receipt of
appellants brief
(2) Manner of filing is similar to that in
appellants brief
Contents:
(1) Subject index
(2) Statement of Facts
Statement of Facts
(3) Arguments
and
Counter-
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PERFECTION OF APPEAL
Payment of Docket Fees [Rule 41, Sec. 4]
Within the period for taking an appeal, the
appellant shall pay to the clerk of the court
which rendered the judgment or final order
appealed from, the full amount of the
appellate court docket and other lawful fees.
Proof of payment of said fees shall be
transmitted to the appellate court together
with the original record or the record on
appeal.
PAGE 101
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Conditions:
(1) There was a motion filed to this effect
(2) Payment in full of docket fees and other
lawful fees as well as deposit for costs
(3) To be done within the reglementary
period
Grounds:
(1) Appeal was taken out of time
(2) Non-payment of docket and other lawful
fees within the reglementary period
[Rule 42]
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PERFECTION OF APPEAL
[Rule 42, Sec. 8]
The CA may:
(1) Require respondent to file a comment on
the petition not a motion to dismiss within
10 days from notice; or
to
Exceptions:
(1) Unless the CA, law, or Rules, provide
otherwise
(2) Also in civil cases decided under the Rule
on Summary Procedure; Stay of
judgment is not applicable here since
these are immediately executory
Sec. 5]
Form of Comment:
(1) An original is filed, properly marked,
together with 2 copies with their annexes
(Efficient Use of Paper Rule)
(2) Accompanied by certified true copies of
such material portions of the record
referred to therein
(3) Together with other supporting papers
(4) Copy of the comment served on petitioner
SUBMISSION OF DECISION
[Rule 42, Sec. 9]
SCOPE
PAGE 103
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 104
UP LAW BOC
CIVIL PROCEDURE
The CA may:
(1) Require respondent to file Comment
within 10 days from notice
(2) Dismiss the petition if CA finds the same
to be:
(a) Patently without merit
(b) Prosecuted manifestly for delay, or
(c) Questions
raised
are
too
unsubstantial to require consideration
FORM
AND
CONTENTS
COMMENT [Rule 43, Sec. 9]
REMEDIAL LAW
OF
Form of comment:
(1) Filed within 10 days from notice following
the Efficient Use of Paper Rule
(2) Accompanied
by
the
following
documents:
(a) Clearly legible certified true copies of
such material portions of the record
referred to therein
(b) And
such
other
supporting
documents
(3) Copy of Comment is served on petitioner
with proof of such service filed with the CA
TRANSMITTAL OF RECORDS
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
APPEAL BY CERTIORARI TO
THE SUPREME COURT
[Rule 45]
CERTIORARI
AS
MODE OF
APPEAL
[RULE
45]
AND
CERTIORARI AS A SPECIAL CIVIL
ACTION [RULE 65]
Appeal by Certiorari
Rule 45
Based on questions of
law which appellant
desires the appellate
court to resolve
Jurisdiction of the CA
(1) CA has jurisdiction over orders, directives,
and decisions of the Office of
Ombudsman in administrative disciplinary
cases only
(2) It cannot review orders, directives,
decisions in criminal and nonadministrative cases
Involves review of
judgment, award or
final order on merits
Jurisdiction of the SC
(1) In criminal cases, ruling of Ombudsman
shall be elevated to the SC via Rule 65
(2) In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or excess
of jurisdiction, a special civil action of
certiorariunder Rule 65 may be filed with
this Court to set aside the Ombudsmans
order or resolution. [Nava v. NBI (2005)]
Petitioner and
respondent are
original parties to the
action
Appellate court is in
the exercise of
appellate jurisdiction
and power of review
PAGE 106
Certiorari as an Action
Rule 65
Petition raises the
issue as to whether the
lower court acted
without or in excess of
jurisdiction or with
grave abuse of
discretion
May be directed
against an
interlocutory order of
the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy, or adequate
remedy
May be filed not later
than 60 days from
notice of judgment,
order or resolution
sought to be assailed
Does not stay the
challenged
proceedings
(unless a writ of
preliminary injunction
or TRO is issued)
The parties are the
aggrieved party
against the lower court
or quasi-judicial
agency as prevailing
parties
A filing of a MR is a
condition precedent,
subject to certain
exceptions
Higher court exercises
original jurisdiction
under its power of
control and
supervision over
proceedings of lower
courts
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PROPRIETY OF RULE 45 AS A
MODE OF APPEAL
Questions of Law
Questions of Fact
Doubt or difference as
to the truth or
Doubt or controversy
falsehood of facts, or
as to what the law is
as to probative value
on certain facts
of the evidence
presented
If the appellate court
can determine the
The determination
issue without
involves evaluation or
reviewing or
review of evidence
evaluating the
evidence
Query involves the
calibration of the
whole evidence
considering mainly
the credibility of
Can involve questions
witnesses, existence,
of interpretation of
and relevancy of
law with respect to
specific surrounding
certain set of facts
circumstances and
relation to each other
and the whole
probabilities of the
situation
OUTLINE OF PROCEDURE
RTC, Sandiganbayan, CTA en banc, or CA
renders a decision
Any party files a petition for review on
certiorari
Within 15 days from notice
of final judgment or order of lower court
or notice of denial of motion for
reconsideration or new trial
Appellant serves copies of petition on
adverse parties and to the lower court,
and pay the corresponding docket fees
SC may dismiss the petition or require
appellee to comment
If given due course, parties may submit
memoranda
PAGE 107
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
CONCLUSIVENESS OF FINDINGS OF
FACT
PAGE 108
UP LAW BOC
CIVIL PROCEDURE
FORM OF PETITION
REVIEW IS DISCRETIONARY
CONTENTS OF PETITION
GROUNDS
FOR
DENIAL
PETITION [Rule 45, Sec. 5]
REMEDIAL LAW
ELEVATION OF RECORDS
OF
Rule 50
PAGE 109
UP LAW BOC
CIVIL PROCEDURE
PAGE 110
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
RULE 41
ORDINARY APPEAL
Matter of Right; Filed with the court of origin
All records are elevated from court of origin
RULE 42
RULE 43
RULE 45
WHERE TO FILE
RULE 40
Filed with the MTC
Appeal to the RTC
RULE 41
Filed with the RTC
Appeal to the CA
RULE 42
Filed with the CA
Appeal to the CA
RULE 43
Filed with the CA
Appeal to the CA
RULE 45
Filed with the SC
Appeal to the SC
PAGE 111
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
RULE 41
RULE 42
RULE 43
RULE 45
PAGE 112
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
[Rule 38]
CONCEPT
WHEN PROPER
RULE 37 v. RULE 38
Rule 37
Rule 38
Available BEFORE
Available AFTER
judgment becomes judgment has become
final and executory
final and executory
Applies to judgments,
Applies to judgments
final orders and other
or final orders only
proceedings
Grounds: (1) FAME
and (2) Newly
Ground: FAME
discovered evidence
Filed within 60 days
from knowledge of
Filed within the time
judgment and within
to appeal
6 months from entry
of judgment
If denied, order
If denied, order of
denying a petition for
denial is not
relief is not
appealable; hence,
appealable; remedy is
remedy is appeal
appropriate civil
from judgment
action under Rule 65
Legal remedy
Equitable remedy
Motion need not be
Petition must be
verified
verified
WHERE FILED
PAGE 113
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Reckoning points:
(1) The 60-day period is reckoned from the
time the party acquired knowledge of the
order, judgment or proceeding. Not from
the date he actually read the same [Perez
v. Araneta]
(2) 6-months period is computed from the
date of entry of the order or judgment
ANNULMENT OF JUDGMENTS
OR FINAL ORDERS AND
RESOLUTIONS
[Rule 47]
Annulment of Judgment is a remedy in law
independent of the case where the judgment
sought to be annulled was rendered and may
be availed of though the judgment has been
executed.
UP LAW BOC
CIVIL PROCEDURE
NATURE
WHERE FILED
Judgments, Final
Judgments, Final
Orders, or Resolutions Orders, or Resolutions
of the RTC
of the MTC
Filed with the CA
REMEDIAL LAW
PAGE 115
UP LAW BOC
CIVIL PROCEDURE
EFFECT
OF
JUDGMENT
ANNULMENT [Rule 47, Sec. 7]
Lack of Jurisdiction
Before it is barred by
laches or estoppel
OF
PROCEEDINGS
REMEDIAL LAW
COLLATERAL ATTACK OF
JUDGMENTS
ON ATTACKING THE VALIDITY OF A
JUDGMENT
is
of
is
is
PAGE 116
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
REMEDIES
VOID JUDGMENT
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Execution, Satisfaction,
and Effect of Judgments
DIFFERENCE BETWEEN
FINALITY OF JUDGMENT FOR
PURPOSES OF APPEAL; FOR
PURPOSES OF EXECUTION
PAGE 118
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
EXECUTION AS A MATTER OF
RIGHT [Rule 39, Sec. 1]
To Whom Issued:
(1) General Rule: Only real parties in interest
in an action are bound by judgment
rendered therein and by the writs of
execution
(2) Exceptions: There are certain cases where
the writ may be issued against non-parties
(a) One who is privy to judgment debtor
can be reached by an order of
execution and writ of demolition [Vda.
De Medina v. Cruz]
(b) Issued against one who not being
originally a party to the case submits
his interest to the court for
consideration in the same case and
invites adjudication regarding said
interest [Jose v. Blue]
(c) Where non-parties voluntarily signed
the compromise agreement or
voluntarily appeared before court
[Rodriguez v. Alikpala]
(d) Where the remedy of a person not a
party to the case which he did not
avail of, was to intervene in the case in
question involving rights over the
same parcel of land and said person
in another case was adjudged buyer in
bad faith thereof [Lising v. Plan]
(e) In an ejectment case, where 3rd party
derived his right of possession from
defendant particularly when such
right was acquired only after filing of
ejectment suit [Cordova v. Tornilla]
PAGE 119
UP LAW BOC
CIVIL PROCEDURE
DISCRETIONARY EXECUTION
[Rule 39, Sec. 2]
Discretionary
Execution
May issue before the
lapse of period to
appeal, and even
during appeal
Discretionary
upon
the court
Upon showing of
good
reason
for
execution
REMEDIAL LAW
PAGE 120
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
EXECUTION BY MOTION OR BY
INDEPENDENT ACTION [Rule 39, Sec. 6]
Modes of Enforcement of Execution:
Mode
When Enforced
Within 5 years from date of entry
By Motion
of judgment
After the lapse of 5 years from
By
date of entry and before it is
Independent barred by statute of limitations
Action
which is 10 years from date of
entry [Art. 1144(3)]
NOTE: The revived judgment may be enforced
by motion within 5 years from date of its entry
and thereafter by action before it is barred by
statute of limitations.
PAGE 121
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
To satisfy judgment
plus interest out of his
real or personal
property
If it be against real or
personal property in the
hands
of
personal To satisfy judgment
representatives, heirs, with interest out of
devisees,
legatees, such
tenants, or trustees of
judgment obligor
To sell such property
described
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(b) If
judgment
oblige
or
his
representative is present to receive
payment:
(i) Judgment obligor shall delver
payment to executing sheriff
(ii) Sheriff shall turn over the amounts
within the same day to the clerk
which issued the writ or deposit
the amounts to a fiduciary
account
in
the
nearest
government depository bank of
the RTC of the locality
SATISFACTION BY LEVY
PAGE 123
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
EXECUTION OF JUDGMENTS
FOR SPECIFIC ACTS
When proper [Rule 39, Sec. 10]
(1) Resorted to if the judgment directs a party
to:
(a) Execute a conveyance of land or
personal property, or
(b) Deliver deeds or other documents, or
(c) Perform any other specific act in
connection therewith.
(2) AND the party fails to comply within the
time specified
Procedure:
(1) Court may direct the act to be done
(a) At the cost of disobedient party
(b) Or by some other person appointed by
the court
(2) In case of directing conveyance of real or
personal property located in the
Philippines:
(a) Court may divest the title of any party
and vest it in others by court order
(b) This shall have the force and effect of
conveyance executed in due form
PAGE 124
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Examples:
(1) A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital
[Vital-Gozon v. CA]
(2) A judgment directing petitioner to vacate
the land which is a judgment to deliver
possession of real property and not
special judgment. No contempt for refusal
[Moslem v. Soriano].
(3) A judgment directing defendant to
remove a fence from a certain place is a
special judgment [Marquez v. Marquez]
EXECUTION OF SPECIAL
JUDGMENTS
Procedure:
(1) A writ of execution shall be issued.
Attached to this is a certified copy of the
judgment
PAGE 125
UP LAW BOC
CIVIL PROCEDURE
(5) Household
furniture
and
utensils
necessary for housekeeping, and used for
that purpose by the judgment obligor and
his family, such as the judgment obligor
may select, of a value not exceeding one
hundred thousand pesos;
REMEDIAL LAW
RETURN OF WRIT OF
EXECUTION
PAGE 126
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PROCEEDINGS WHERE
PROPERTY CLAIMED BY THIRD
PERSON
CONCEPTS
Rule 39, Sec. 16 and other provisions which
provide for a mode of recovering property
allegedly to have been wrongfully taken by
sheriff pursuant to a writ of execution or other
process, refers to a STRANGER to an action.
SUMMARY
HEARING
BEFORE
COURT AUTHORIZING EXECUTION
Procedure:
(1) Claimant files application
(3) Note
however
that
the
court
determination is limited
(a) Limited only to a determination of
whether the sheriff has acted rightly
or wrongly in performance of his
duties
(b) The court does not and cannot pass
upon the question of title. It can treat
of the matter only insofar as may be
necessary to decide if sheriff acted
correctly or not
PAGE 127
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
TERCERIA
REINVINDICATORY ACTION
Procedure
(1) Claimant serves on the officer making levy
an affidavit of his title and a copy thereof
to judgment creditor
Procedure
(1) He must institute an action, distinct and
separate from that which the judgment is
being enforced, with the court of
competent jurisdiction
RULES ON REDEMPTION
WHEN AVAILABLE
WHO
MAY
REDEEM
REAL
PROPERTY SO SOLD [Rule 39, Sec. 27]
Who may redeem:
(1) Judgment obligor, or his successor in
interest, in the whole or any part of the
property
(2) Remptioner who is a creditor having a lien
by virtue of an attachment, judgment or
mortgage on the property sold,
subsequent to the lien which the property
was sold
Successors-in-interest
They include, among others, one to whom the
debtor has conveyed HIS INTEREST in the
property for purposes of redemption
PAGE 128
UP LAW BOC
CIVIL PROCEDURE
The Redemptioner
He is a creditor with a lien SUBSEQUENT to
the judgment which was the basis of the
execution sale.
REMEDIAL LAW
REDEMPTION PRICE
When
Within 1 year from date of
By the JUDGMENT
registration of certificate
DEBTOR
of sale
Within 1 year from date of
By FIRST
registration of certificate
REDEMPTIONER
of sale
Within 60 days from last
BY ALL
redemption
SUBSEQUENT PROVIDED that judgment
REDEMPTIONERS debtor has not exercised
his right of redemption
PAGE 129
UP LAW BOC
CIVIL PROCEDURE
RIGHTS
PENDING
REMEDIAL LAW
REDEMPTION
EXPIRATION OF REDEMPTION
PERIOD [Rule 39, Sec. 33]
Judgment obligor shall have the entire period
of ONE YEAR from date of registration of sale
to redeem the property
PAGE 130
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
REMEDIES
OF
JUDGMENT
CREDITOR IN AID OF EXECUTION
OR IF JUDGMENT IS NOT FULLY
SATISFIED [Rule 39, Sec. 36 43]
UP LAW BOC
CIVIL PROCEDURE
EFFECT OF JUDGMENT OR
FINAL ORDERS
Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
There is identity of
parties,
subject
matter, and causes
of action
The first judgment
constitutes as an
absolute bar to all
matters
directly
adjudged and those
that might have
been adjudged
Preclusion of claims
In Personam
(Paragraph B)
The judgment or final
order
is
CONCLUSIVE
as
between parties and
their successors in
interest, litigating for
the same thing and
under the same title
an in the same
capacity
e.g. accion
reinvindicatoria
Bar by Former
Judgment
REMEDIAL LAW
Conclusiveness of
Judgment
There is only identity
of parties and subject
matter
Cause of action are
different
The first judgment is
conclusiveness only as
to matters directly
adjudged and actually
litigated in the first
action.
The second action can
be prosecuted
Preclusion of issues
only
PAGE 132
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Conclusive as to
Title of the thing
The will or
administration.
However, the probate
Probate of a will or of a will or granting of
administration of the
letters of
estate of a deceased administration shall
person
only be prima facie
evidence of the death
of the testator or
intestate;
in respect to the
personal, political, or
legal condition or
Condition, status or
status of a particular
relationship of the
person or his
person,
relationship to
another
Law of the
Case
Operates only
in
the
particular and
single
case
where
the
ruling
arises
and is not
carried
into
other cases as
a precedent
The
ruling
adhered to in
the particular
case need not
be followed as
a precedent in
subsequent
litigation
between other
parties
CONCLUSIVENESS OF JUDGMENT
Preclusion of issues (auter action pendant)
In any other litigation between the same
parties or their successors in interest, that only
is deemed to have been adjudged in a former
judgment or final order which appears upon
its face to have been so adjudged, or which
was actually and necessarily included therein
or necessary thereto.
Issue Preclusion The first judgment
precludes the re-litigation of a particular fact
or issue in another action between the same
parties on a different cause of action.
Requisite: Identity of ISSUES
PAGE 133
Stare Decisis
Once a point of
law has been
established by
the court, that
point of law
will, generally,
be followed by
the same court
and by all
courts of lower
rank
in
subsequent
cases
where
the same legal
issue is raised
UP LAW BOC
CIVIL PROCEDURE
EFFECT OF FOREIGN
JUDGMENTS OR FINAL
ORDERS
REMEDIAL LAW
Nature
Effect
In judgments against
Judgment is
a specific thing (in CONCLUSIVE upon the
rem)
title to the thing
Judgment is
PRESUMPTIVE
In judgments against evidence of a right as
a person (in
between parties and
personam)
their successors-ininterest by a
subsequent title
PAGE 134
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PRELIMINARY ATTACHMENT
Provisional Remedies
DEFINITION
NATURE OF PROVISIONAL
REMEDIES
PURPOSES
(1) To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
(2) To enable the court to acquire jurisdiction
over the action by the actual or
constructive seizure of the property in
those instances where personal service of
summons on the creditor cannot be
effected. [Quasha v. Juan (1982)]
JURISDICTION OVER
PROVISIONAL REMEDIES
The court which grants or issues a provisional
remedy is the court which has jurisdiction over
the main action.
Inferior courts may also grant all appropriate
provisional remedies in an action pending with
it and is within its jurisdiction [Sec. 33, (1), BP
129]
PAGE 135
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
OF
Methods
to
Procure
Preliminary
Attachment:
(1) Writ may be prayed for in the complaint
itself providing the allegations warranting
its issuance
(2) May be issued pursuant to a separate
motion for attachment whenever the writ
is not prayed for in the original complaint
Three Stages in the Grant of a Preliminary
Attachment:
(1) The court issues the order granting the
application
(2) Writ of attachment issues pursuant to the
order granting the writ
(3) The writ is implemented
PAGE 136
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
THE
RULE
ON
PROR
OR
CONTEMPORANEOUS SERVICE OF
SUMMONS
General Rule: A writ of attachment may be
issued ex parte even before the summons is
served upon the defendant. BUT a writ may
not be implemented until jurisdiction over the
person is acquired by service of summons.
Otherwise, the implementation is null and
void. [Riano]
MANNER OF ATTACHING
PROPERTY [Rule 57, Sec. 5]
The sheriff enforcing the writ shall attach only
so much of the property in the Philippines of
the adverse party not exempt from execution
as may be sufficient to satisfy the applicants
demand, UNLESS
(1) Party against whom writ is issued makes a
deposit with the court from which the writ
is issued, or
(2) He gives a counter-bond executed to the
applicant
PAGE 137
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
action
to
recover
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Sec. 15]
Procedure:
(1) Pay to judgment obligee the proceeds of
sale of perishable property
(2) If there is any balance that remains due,
sell property as may be necessary to
satisfy the balance if enough remains in
the sheriff or those of the clerk
(3) Collection of property of garnishee and
proceeds paid to judgment oblige without
need of prior permission to file action but
may be enforced in the same action
(4) Return must be made within 10 days from
receipt of writ
PRELIMINARY INJUNCTION
Injunction
Main action
seeks a judgment
embodying a final
injunction
Preliminary injunction
Ancillary; exists only as
part or incident of an
independent action or
proceeding
sole object of which is to
preserve the status quo
until the merits can be
heard
UP LAW BOC
CIVIL PROCEDURE
Requisites:
(1) There must be a verified application
(2) The applicant must establish that:
(a) He has a right to relief or a right to be
protected and
(b) The act against which the injunction is
sought violates such right
(c) There is a need to restrain the
commission or continuance of the acts
complained of and if not enjoined
would work injustice to him
(3) A bond must be posted unless otherwise
exempted by the court
(4) The threatened injury must be incapable
of pecuniary estimation
(5) Prior notice and hearing for party/person
sought to enjoined (except in 72-hour
TROs)
Injunction
Cannot be granted
without notice and
hearing
application
REMEDIAL LAW
KINDS OF INJUNCTION
Kinds of Injunction:
(1) Preliminary Preventive Injunction
Prohibits the performance of a particular
act or acts
as
Preliminary Prohibitory
Preliminary
Injunction
Mandatory Injunction
Purpose is to prevent
Purpose is to require
a person from the
a person to perform a
performance of a
particular act
particular act
The act has already
The act had not yet been performed and
been performed
this act has violated
the rights of another
Status Quo is
Status Quo is
preserved
restored
PAGE 140
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PAGE 141
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(i) The
applicant
must
then
immediately comply with Sec. 4
as to service of summons and
documents
(ii) The Executive Judge shall then
summon the parties to a
conference and raffle the case in
their presence
PAGE 142
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
RULE ON PRIOR OR
CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO
ATTACHMENT
Exception:
Where the summons could not be served
personally or by substituted service despite
diligent efforts, or the adverse party is a
resident of the Philippines temporarily absent
therefrom or is a nonresident thereof, the
requirement of prior or contemporaneous
service of summons shall not apply. [Rule 58,
Sec.4] The executive judge of a multiple-sala
court or the presiding judge of a single sala
court may issue ex parte a TRO effective for
only 72 hours from issuance if the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury.
However, he shall immediately comply with
the provisions of Rule 38, Sec. 4 as to service
of summons and the documents to be served
therewith. [Rule 38, Sec. 5]
PAGE 143
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
RECEIVERSHIP
NATURE
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Powers of a Receiver
(1) Bring and defend in such capacity actions
in his own name with leave of court
(2) Take and keep possession of the property
in controversy
(3) Receive rents
(4) Collect debts due to himself as receiver or
to the fund, property, estate, person, or
corporation of which he is the receiver
(5) Compound for and compromise the same
(6) Make transfers
(7) Pay outstanding debts
(8) Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
(9) Generally, to do such acts respecting the
property as the court may authorize
(10) Invest funds in his hands, ONLY by order
of the court upon the written consent of
all the parties. [Rule 59, Sec. 6]
REQUISITES; REQUIREMENTS
BEFORE ISSUANCE OF AN ORDER
Procedure:
(1) Verified application filed by the party
requesting for the appointment of the
receiver;
(2) Applicant must have an interest in the
property or funds subject of the action;
(3) Applicant must show that the property or
funds is in danger of being lost, wasted, or
dissipated;
(4) Application must be with notice and must
be set for hearing;
(5) Before appointing a receiver, the court
shall require applicant to post a bond in
favor of the adverse party. When the
receiver is appointed, the receiver shall file
a bond then take his oath.
(6) Before entering upon his duties, the
receiver must be sworn to perform his
duties faithfully.
THE RECEIVER
Who May Be Appointed As Receiver
The general rule is that neither party to the
litigation should be appointed as a receiver
without the consent of the other because a
receiver is supposed to be an impartial and
disinterested person. [Alcantara v. Abbas,
1963]
A clerk of court should not be appointed as a
receiver as he is already burdened with his
official duties. [Arigo v. Kayanan, 1983]
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Effect:
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver
entitled
to
reasonable
compensation to be taxed as costs against
defeated party
REPLEVIN
NATURE
Damages Resulting
From Appointment
Writ of Preliminay
Attachment
The purpose is to have
the property put in the
The purpose is to
custody of the court to
recover personal
secure the satisfaction
property capable of
of the judgment that
manual delivery
may be rendered in
from the defendant
favor of the plaintiff at
some future time
The property either
belongs to the
The property does not
plaintiff or one over
belong to the plaintiff
which the plaintiff
but to the defendant
has a right of
possession
May be sought only
Available even if
when the principal
recovery of property is
action is for the
only incidental to the
recovery of personal
relief sought
property
Can be sought only
when defendant is in May be resorted to
actual or
even if property is in
constructive
possession of a third
possession of the
person
property
Cannot be availed of Can be availed of even
when property is in
if property is in
custodia legis
custodia legis
Available from
Available before
commencement but
defendant answers
before entry of
judgment
Writ of Replevin
TERMINATION OF RECEIVERSHIP
PAGE 146
UP LAW BOC
Writ of Replevin
Bond is double the
value of the property
Extends only to
personal property
capable of manual
delivery
Available to recover
personal property
even if the same is
not being concealed,
removed, or
disposed of
CIVIL PROCEDURE
REMEDIAL LAW
REQUISITES
Writ of Preliminay
Attachment
Bond is fixed by the
court
Extends to all kinds of
property whether real,
personal, or
incorporeal
Attachment to recover
possession of personal
property unjustly
detained presupposes
that the same is being
concealed, removed,
or disposed of to
prevent its being found
or taken by the
applicant
PAGE 147
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
DISPOSITION OF PROPERTY BY
SHERIFF [Rule 60, Sec. 6]
UP LAW BOC
CIVIL PROCEDURE
PAGE 149
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Purpose
Subject Matter
When applied/
Granted
Requirement
Of a hearing
Preliminary Injunction
Receivership
Replevin
Particular act/s
PAGE 150
Personal property
manual delivery
capable
of
Not Required
May be issued ex parte
UP LAW BOC
CIVIL PROCEDURE
Preliminary Attachment
Preliminary Injunction
and irreparable injury [Sec. 5, Rule
58]
Only the court where the action is
pending
Lower court, CA or SC provided
action is pending in the same court
which issues the injunction
Also with the Sandiganbayan and
CTA
1. Applicant is entitled to relief
demanded
2. Act/s complained of would work
injustice to applicant if not
enjoined
3. Acts sought to be enjoined
probably violates applicants
rights respecting the subject of
the action or proceeding
4. Threatened injury incapable of
pecuniary estimation
PAGE 151
REMEDIAL LAW
Receivership
Replevin
UP LAW BOC
CIVIL PROCEDURE
IN GENERAL
NATURE
REMEDIAL LAW
of
PAGE 152
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
INTERPLEADER
WHEN TO FILE
NATURE
PROCEDURE
Purposes
(1) To compel conflicting claimants to
interplead and litigate their several claims
among themselves. [Rule 62, Sec. 1]
(2) To protect a person against double
vexation in respect of one liability [Beltran,
supra]
PAGE 153
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PARTIES
NATURE
WHERE TO FILE
for
Characteristics
(1) The concept of a cause of action is not
applicable to declaratory relief since this
SCA presupposes that there has been no
breach or violation of the
(2) Instruments involved
(3) Unlike other judgments, judgment in an
action for declaratory relief does not
essentially entail any execution process
PAGE 154
UP LAW BOC
CIVIL PROCEDURE
CONVERSION TO ORDINARY
ACTION
PROCEEDINGS CONSIDERED
SIMILAR REMEDIES
REMEDIAL LAW
AS
be
filed
PAGE 155
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 64
Rule 65
The filing of a MR or a
Motion for New Trial if
allowed, interrupts the
period for the filing of
The period within
the petition for
which to file the
certiorari. If the
petition if the MR or
motion is denied, the
new trial is denied, is
aggrieved party may
60 days from notice of
file the petition within
the denial of the
the remaining period,
motion.
but which shall not be
less than 5 days
reckoned from the
notice of denial.
PROCEDURE
CERTIORARI, PROHIBITION,
MANDAMUS
DEFINITIONS AND DISTINCTIONS
Rule 64
Rule 65
Directed to any
Directed only to the
tribunal, board, or
judgments, final
officer exercising
orders or resolutions
judicial or quasiof COMELEC and COA
judicial functions
Filed within 30 days Filed within 60 days
from notice of the
from notice of the
judgment
judgment
PAGE 156
UP LAW BOC
CIVIL PROCEDURE
Prohibition
Directed
against
an
entity
or
person
exercising
judicial, quasijudicial,
or
ministerial
functions
Mandamus
Injunction
Ordinary civil action
Directed
against an
entity
or
person
exercising
ministerial
functions
Entity
or
person
is
alleged to
Entity or person is alleged to
have:
have acted:
(1) Neglected
(1) Without jurisdiction
a ministerial
(2) In excess of jurisdiction; or
duty; or
(3) With grave abuse of
(2) Excluded
discretion amounting to lack or
another from
excess of jurisdiction
a right or
office
PURPOSE:
PURPOSE
To
have
To annul or respondent
nullify
a desist
from
proceeding
further
proceeding
Covers
discretionary
and ministerial
acts
Negative and
Corrective
Preventive
remedy
remedy
To
correct To restrain or
usurpation of prevent
the
jurisdiction
said
usurpation
Covers
discretionary
acts
REMEDIAL LAW
Injunction
Ordinary civil action
Prohibition
Special civil action
Directed to the court
itself, commanding it
to cease from the
exercise
of
a
jurisdiction to which it
has no legal claim
Mandamus
Special civil action
Directed against a
Directed against a
tribunal, corporation,
litigant
board, or officer
Purpose is to either
Purpose is for the
refrain the defendant
tribunal, corporation,
from performing an
board, or officer, to
act or to perform not
perform a ministerial
necessarily a legal
and legal duty
and ministerial duty
PURPOSE:
For
respondent
to: (1) Do the
act required,
and (2) Pay
damages
Covers
ministerial
acts
This remedy
is affirmative
or positive
or negative
PAGE 157
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Certiorari as a mode
of appeal [Rule 45]
Certiorari as a special
civil action [Rule 65]
Does not stay the
judgment or order
Stays the judgment subject
of
the
appealed from
petition,
unless
enjoined
or
restrained
Parties
are
the
original parties with
The tribunal, board,
the appealing party
officer,
exercising
as the petitioner and
judicial or quasithe adverse party as
judicial functions is
the
respondent
impleaded
as
without impleading
respondents
the lower court or its
judge
May be filed with the
Filed only with the
SC,
CA,
SC
Sandiganbayan, RTC
SC may deny the
decision
motu
proprio on specific
grounds
ACQUISITION OF JURISDICTION
Extension of 30 days
Extension no longer
may be granted for
allowed
justifiable reasons
Motion
for
Does not require a
reconsideration is a
prior motion for
condition precedent,
reconsideration
subject to exceptions
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Discretionary Act
REQUISITES
Requisites of Certiorari:
(1) There must be a controversy
(2) Respondent is exercising judicial or quasijudicial function
(3) Respondent acted without or in excess of
its jurisdiction or acted with grave abuse
of discretion amounting to lack of
jurisdiction; and
(4) There must be no appeal or other plain,
speedy, and adequate remedy
Requisites of Prohibition:
(1) There must be a controversy
(2) Respondent is exercising judicial, quasijudicial, or ministerial functions
(3) Respondent acted without or in excess of
its jurisdiction or acted with grave abuse
of discretion amounting to lack of
jurisdiction; and
(4) There must be no appeal or other plain,
speedy, and adequate remedy
Ministerial Act
One which an officer
or tribunal performs
in a given state of
facts, in a prescribed
manner, in obedience
to the mandate of a
legal authority,
without regard to or
the exercise of his
own judgment upon
the propriety or
impropriety of the act
done
Requisites of Mandamus:
(1) There must be a clear legal right or duty
If there is discretion as to the taking or
non-taking of the action sought, there
is no clear legal duty, and mandamus
will not lie
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Prayers:
(1) In certiorari
(a) That the judgment be rendered
annulling
or
modifying
the
proceedings of such tribunal, board or
officer; and
(b) Granting such incidental reliefs as law
and justice may require
(2) In prohibition
(a) That the judgment be rendered
commanding the respondent to desist
from further proceedings in the action
or matter specified; or
(b) Otherwise granting such incidental
reliefs as law and justice may require
(3) In mandamus
(a) That the judgment be rendered
commanding
the
respondent,
immediately or at some other time to
be specified by the court, to do the act
required to be done to protect the
rights of the petitioner; and
(b) To pay the damages sustained by the
petitioner by reason of the wrongful
acts of the respondent
PAGE 160
UP LAW BOC
CIVIL PROCEDURE
PROCEDURE
REMEDIAL LAW
certiorari/mandamus/
When filed:
(a) Not later than 60 days from notice of
judgment/order/resolution
(b) If a motion for reconsideration/new
trial is filed, the 60-day period shall
be counted from notice of denial of
motion.
(c) Extension may be granted for
compelling reasons, not exceeding 15
days. [Rule 65, Sec. 4]
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
EFFECTS OF FILING AN
UNMERITORIOUS PETITION
INJUNCTIVE RELIEF
Rule 65, Sec. 7 provides for the issuance of a
temporary restraining order, and not only for a
writ of preliminary injunction, but such order
shall be subject to the rules on the grounds
and duration thereof. [Regalado]
QUO WARRANTO
NATURE
FACTS/OMISSIONS OF MTC/RTC IN
ELECTION CASES
PAGE 162
UP LAW BOC
CIVIL PROCEDURE
ROC Rule 66
OEC Sec. 253
Filed by whom
Solicitor General or
Public Prosecutor in
behalf of the Republic;
Individual
REMEDIAL LAW
Any voter
Where filed
COMELEC, if
against election of a
Member of
By SolGen: RTC Manila, Congress, Regional,
CA or SC; Otherwise,
Provincial or City
RTC with jurisdiction
Officer;
over territorial area
where respondent
appropriate RTC or
resides, CA or SC
MTC, if against a
municipal or
barangay officer
PAGE 163
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
EXPROPRIATION
NATURE
Laches does not attach and failure to file quowarranto proceedings does not operate
adversely against a dismissed government
employee where it was the act of responsible
government official which contributed in the
delay of filing of complaint for reinstatement
[Cristobal v. Melchor].
MATTERS TO ALLEGE IN
COMPLAINT FOR EXPROPRIATION
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Preliminary deposit:
Provide damages if court finds
that the plaintiff has no right to
expropriate
Purposes
NO. 8974
On RA 8974
On Nov. 7, 2000, Congress enacted RA 8974,
a special law to facilitate the acquisition of
right of way, site, or location for national
government infrastructure projects:
UP LAW BOC
CIVIL PROCEDURE
Rule 67,
Sec. 2
Application
Expropriation
in general
Government
For writ of is required to
possession
make
to issue
preliminary
deposit
Equal to
assessed
Amount of
value of real
payment or
property for
deposit
purposes of
taxation
REMEDIAL LAW
RA 8974
Only when
national
government
expropriates
property for
national
government
infrastructure
projects
Government is
required to make
immediate
payment to owner
upon filing of
complaint
Equal to the
market value of
the property as
stated in the tax
declaration or
current relevant
zonal value of BIR,
whichever is
higher, and value
of improvements
and/or structures
using
replacement cost
method
No Objection or
Has Objection or
Defense to the Taking Defense to the Taking
What to file and serve
Notice of
Answer to the
appearance and
complaint
manifestation
Period to file
Time stated in the summons
Contents
Specifically
designating/identifying
Manifestation to the
the property in which
effect that he has no
he claims to have an
objection or defense;
interest in and the
nature and extent of
Specifically
the interest;
designating/
identifying the
property in which he
ALL his objections and
claims to be
defenses to the
interested
complaint or any
allegation therein
Prohibited
Counterclaim, crossclaim, third party
complaint in any
pleading
PAGE 166
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(3) Procedures:
(a) Copies of the Order shall be served on
the parties
(b) Objections to appointment:
(i) Filed with the court within 10 days
from service
(ii) Objections shall be served to all
commissioners
(iii) Resolved within 30 days after all
commissioners
shall
have
received copies
ORDER OF EXPROPRIATION
[Rule 67, Sec. 4]
Just Compensation
Just Compensation has been defined as the
full and fair equivalent of the property taken
from its owner by the expropriator. Just
compensation means not only the correct
determination of the amount to be paid but
also the payment of the land within a
reasonable time from its taking.
Market Value
Is that sum of money which a person desirous
but not compelled to buy, and an owner
willing but not compelled to sell, would agree
on as a price to be given and received
therefore. [BPI v. CA (2004)]
APPOINTMENT OF
COMMISSIONERS;
COMMISSIONERS REPORT; COURT
ACTION UPON REPORT
ASCERTAINMENT OF JUST
COMPENSATION [Rule 67, Sec. 5]
Order of Appointment:
(1) Court appoints not more than 3
commissioners to ascertain and report to
the court the just compensation for the
property
(2) Contents:
(a) It shall designate the time and place
of the first session of hearing to be
held by commissioner
(b) Specify the time within which their
report shall be submitted to court
PAGE 167
UP LAW BOC
CIVIL PROCEDURE
Duties of Commissioners:
(1) View and examine the property sought to
be expropriated and its surroundings, and
may measure the same
(a) Due notice to parties to attend must
first be given UNLESS the parties
consent to the contrary
(b) After this, each party may argue the
case
REMEDIAL LAW
RIGHTS OF PLAINTIFF
JUDGMENT AND PAYMENT
UPON
EFFECT
OF
JUDGMENT
RECORDING
OF
PAGE 168
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
FORECLOSURE OF REAL
ESTATE MORTGAGE
NATURE
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
DISPOSITION OF PROCEEDS OF
SALE [Rule 68, Sec. 4]
DEFICIENCY JUDGMENT;
INSTANCES WHEN COURT CANNOT
RENDER DEFICIENCY JUDGMENT
PAGE 170
UP LAW BOC
CIVIL PROCEDURE
Equity of Redemption
Right of the
defendant mortgagor
to extinguish the
mortgage and retain
ownership of the
property by paying
the secured debt
within the 90 to 120
day period after entry
of judgment or even
after the foreclosure
sale but prior to its
confirmation
Period is 90-120 days
after entry of
judgment or even
after foreclosure sale
but prior to
confirmation
Governed by Rule 68
Judicial Foreclosure
Extrajudicial
Foreclosure
Requires court
No court intervention
intervention
necessary
There is only an
Right of redemption
equity of redemption
exists
Governed by Rule 68 Governed by Act 3135
No Deficiency
judgment because
There could be a
there is no judicial
Deficiency Judgment
proceeding but
recovery of deficiency is
allowed
Recovery of
Recovery of deficiency
deficiency can be
is through an
done by mere
independent action
motion
Judicial Foreclosure
No right of
redemption, only
equity of redemption
EXCEPT: Those
granted by banks or
banking institutions
as provided by the
General Banking Act
(mortgagor may
exercise a right of
redemption)
REMEDIAL LAW
Right of Redemption
Right of the debtor,
his successor in
interest, or any
judicial creditor of
said debtor or any
person having a lien
on the property
subsequent to the
mortgage or deed of
UP LAW BOC
CIVIL PROCEDURE
PARTITION
NATURE
Parties
(1) The plaintiff is the person who is supposed
to be a co-owner of the property
(2) Defendants are all the co-owners, who are
indispensable parties
(3) Creditors or assignees of co-owners may
also intervene and object to the partition
REMEDIAL LAW
MATTERS TO ALLEGE IN
COMPLAINT FOR PARTITION
THE
PAGE 172
UP LAW BOC
CIVIL PROCEDURE
ORDER OF PARTITION
PARTITION BY AGREEMENT
REMEDIAL LAW
AND
[Sec. 5]
(1) General Rule: If the commissioners should
determine that the real estate cannot be
divided without prejudice to the interests
of the parties, the court may order that the
property be assigned to one of the parties
willing to take the same PROVIDED he
pays to the other parties such amounts as
the commissioners deem equitable
(2) Exception: if one of the parties asks that
the property be sold instead of being so
assigned, then the court shall ORDER the
commissioners to sell the real estate at
public sale under such conditions and
within such time as the court may
determine
PARTITION BY COMMISSIONERS;
APPOINTMENT OF
COMMISSIONERS;
COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS
REPORT
PAGE 173
UP LAW BOC
CIVIL PROCEDURE
Contents of Judgment
Effects of Judgment
PARTITION OF PERSONAL
PROPERTY
PRESCRIPTION OF ACTION
Contents of Judgment
REMEDIAL LAW
Effects of Judgment
PAGE 174
UP LAW BOC
CIVIL PROCEDURE
INTERDICTAL
NATURE
REMEDIAL LAW
Unlaful Detainer
(Desahucio)
Possession is
inceptively lawful but
it becomes illegal by
reason of the
termination of his
right to possession of
the property under his
contract with the
plaintiff
Demand is
jurisdictional if the
ground is nonpayment of rentals or
failure to comply with
lease contract
Accion
Accion
Publiciana Reivindicatoria
A plenary
action for
An action for
recovery of
recovery of
real right of
ownership,
possession
which
when
necessarily
dispossession includes the
has lasted for recovery of
more than
possession
one year
HOW TO DETERMINE
JURISDICTION
In Accion Interdictal: In the proper Municipal
Trial Court
NOTE: Amount of rents and damages claimed
does not affect the jurisdiction of the MTC
because they are only incidental or accessory
to the main action
HOWEVER, municipal courts have no
jurisdiction over a FEUD case involving
agricultural tenants. Jurisdiction is with the
HLURB
PAGE 175
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
PLEADINGS ALLOWED
Allowed pleadings:
(1) Complaint
(2) Compulsory Counterclaim pleaded in the
answer
(3) Cross-claim pleaded in the answer
(4) Answer
Against whom may the action be maintained Person or persons unlawfully withholding or
depriving of possession, or any person/s
claiming under them:
(1) Action of Forcible Entry and Unlawful
Detainer (FEUD) may be maintained only
against one in possession at the
commencement of the action
(2) Tenant with right of possession may bring
action against another tenant
ACTION ON COMPLAINT
[Rule 70, Sec. 5]
PAGE 176
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
HOW
TO
STAY
IMMEDIATE
EXECUTION OF JUDGMENT
[Rule 70, Sec. 19]
SUMMARY PROCEDURE,
PROHIBITED PLEADINGS
General rule: All actions for FEUD shall be
governed by the summary procedure of Rule
70, irrespective of the amount of damages or
unpaid rentals sought to be recovered
Exceptions:
(1) In cases covered by the agricultural
tenancy laws
(2) When the law otherwise expressly
provides
PAGE 178
UP LAW BOC
CIVIL PROCEDURE
Prohibited Motions:
(1) Motion for a BILL of particulars
(2) Motion for EXTENSION of time to file
pleadings, affidavits, or any other paper
(3) Motion for NEW trial, or for
reconsideration of a judgment, or for
reopening of trial
(4) Motion to DISMISS the complaint; Except
on the ground for lack of jurisdiction over
the subject matter or failure to comply
with Sec. 12
(5) Motion to DECLARE defendant in default
(6) DILATORY motions for postponement
REMEDIAL LAW
Criminal Contempt
Punitive in nature
Civil Contempt
Remedial in nature
Purpose is to provide a
Purpose is to preserve
remedy for an injured
the courts authority
suitor and to coerce
and to punish for
compliance with an
disobedience of its
order; for the
orders
preservation of the
rights of private persons
Intent is necessary
Intent is not necessary
Instituted by the
aggrieved party, or his
State is the real
successor, or someone
prosecutor
who has a pecuniary
interest in the right to be
protected
Prohibited Pleadings:
(1) THIRD-party complaints
(2) REPLY
(3) INTERVENTIONS
(4) PETITION for relief from judgment
(5) PETITION for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court
CONTEMPT
If accused is acquitted,
there can be no appeal
If judgment is for
respondent, there can
be appeal
NATURE
Direct Contempt
Committed in the
presence of or so near a
court
Indirect Contempt
Not committed within
the presence of the
court
There is charge and
Summary in nature
hearing
Punishment:
Punishment:
If committed against
If committed against
the RTC: Fine of not RTC: Fine not exceeding
exceeding P2,000
P30,000 and/or
and/or imprisonment
imprisonment not
not exceeding 10 days
exceeding 6 months
If committed against
If committed against
the MTC: Fine not
MTC: Fine not
exceeding P200 and or
exceeding P5,000
imprisonment not
and/or imprisonment
exceeding 1 day
not exceeding 1 month
Remedy is certiorari or
Remedy is appeal
prohibition
Otherwise known as
Otherwise known as
Contempt in Facie
Constructive Contempt
Curiae
PAGE 179
UP LAW BOC
CIVIL PROCEDURE
DIRECT CONTEMPT
INDIRECT CONTEMPT
Specific acts constituting indirect contempt
[Rule 70, Sec. 3]
(1) MISBEHAVIOR of an officer of a court in
the performance of his official duties or in
his official transactions
(2) ABUSE of or any unlawful interference
with processes or proceedings of a court
not constituting direct contempt
(3) DISOBEDIENCE or resistance to lawful
writ, process, order, or judgment of a
court, or any unlawful intrusion to any real
property after being ejected
(4) FAILURE to obey subpoena duly served
(5) ASSUMING to be an attorney or officer of
a court, and acting as such without
authority
(6) IMPROPER conduct tending to impede,
obstruct, or degrade administration of
justice
(7) RESCUE, or attempted rescue, of a person
or property in custody of an officer
(8) Failure by COUNSEL to inform the court
of the death of his client
Penalties:
Offense
If RTC or a court of
equivalent or higher
rank
If lower court:
REMEDIAL LAW
Penalty
Fine not exceeding
P2,000 and/or
Imprisonment not
exceeding 10 days
Fine not exceeding
P200 and/or
Imprisonment not
exceeding 1 day
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
(2) Exceptions:
(a) If committed against a lower court, it
may be tried by the RTC, regardless of
the imposable penalty; and
(b) If committed against the SC, it may
cause it to be investigated by the
prosecutor and filed with the RTC, or
for hearing and recommendation
where the charge involves questions
of fact
Penalty
Fine not exceeding
P30,000 and/or
Imprisonment not
exceeding 6 months
Fine not exceeding P500,
If committed
and/or
against lower
Imprisonment not
court
exceeding 1 month
Offender may also be
ordered to make complete
restitution to the party
injured by such violation of
If contempt
the property involved or
consists in
such amount as may be
violation of a writ
alleged and proved.
of injunction, TRO,
or status quo
If there is nothing more to
order
return, offender is
personally liable for the
restitution of the money
equivalent to the lost thing
(Rosario Textile Mills v. CA)
If committed
Penalty shall depend upon
against a person the provisions of the law
or entity
which authorizes penalty
exercising quasi- for contempt against such
judicial functions
persons or entities
PAGE 181
UP LAW BOC
CIVIL PROCEDURE
PAGE 182
REMEDIAL LAW
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Interpleader
Jurisdiction
Venue
Personal Property:
(1) MTC if value not more than P300,000 outside Metro Manila, or
not more than P400,000 in Metro Manila [Sec. 33, BP129]
Rule 4 applies
(2) RTC value exceeds P300,000 outside Metro Manila, or P400,000
in Metro Manila, or if incapable of pecuniary estimation [Sec. 19,
If the action affects title to or possession of real property
BP129]
Venue is where the real property involved or a portion thereof is situated
Real Property
(1) MTC assessed value not more than P20,000 outside Metro
Manila or not more than P50,000 in Metro Manila [Sec. 33, BP 129]
(2) RTC value exceeds P20,000 if outside Metro Manila, or P50,000
if in Metro Manila, or incapable of pecuniary estimation [Sec. 19,
BP129]
Rule 4 applies
General Rule: In the appropriate RTC
Declaratory Relief
Review of Judgments
and Final Orders of
COMELEC/COA
Certiorari
Prohibition
Mandamus
Quo Warranto
Expropriation
Judicial Foreclosure
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Rule 4 applies
Partition
Contempt
PAGE 184
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
Special Rules
REVISED RULES ON SUMMARY
PROCEDURE
[Sec. 1]
The judgment:
(1) As may be warranted by the facts alleged in
the complaint and
(2) Limited to what is prayed for
PAGE 185
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
KATARUNGANG
PAMBARANGAY LAW
[PD 1508; RA 7160 as amended]
SCOPE AND APPLICABILITY OF THE
RULE
CASES COVERED
Parties
Between actual
residents of the same
barangay
Between actual
residents of different
barangays but within
same city/municipality
Lupon
Lupon of said barangay
EXECUTION
PAGE 186
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
REPUDIATION
Any party to the dispute may, within ten (10)
days from the date of the settlement, repudiate
the same by filing with the lupon chairman a
statement to that effect sworn to before him,
where the consent is vitiated by fraud, violence,
or intimidation. Such repudiation shall be
sufficient basis for the issuance of the
certification for filing a complaint as
hereinabove provided. [Sec. 418, RA 7160]
PAGE 187
UP LAW BOC
CIVIL PROCEDURE
PROHIBITED
PLEADINGS
MOTIONS [Sec. 14]
REMEDIAL LAW
Failure to appear:
(1) If plaintiff fails to appear it shall be a
cause for dismissal without prejudice.
Defendant present shall be entitled to
judgment on permissive counterclaim.
(2) If defendant fails to appear same effect as
failure to file Response.
AND
APPEARANCES
FINALITY OF JUDGMENT
PAGE 188
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
the
In other courts,
(1) One original (properly marked)
(2) With the stated annexes attached to it.
COPIES TO BE FILED
APPLICABILITY
PAGE 189
UP LAW BOC
SPECIAL PROCEEDINGS
PAGE 190
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Preliminary Matters
Special proceedings - A remedy by which a party
seeks to establish a status, right or a particular
fact [Rule 1, Sec. 3(c)].
APPLICABLE RULES
If special rules are provided, they shall apply.
But in the absence of special provisions, the
rules provided for in ordinary actions shall be,
as far as practicable, applicable in special
proceedings. [Rule 72, Sec. 2].
There are special proceedings which are not
part of the ROC (e.g. Writs of amparo and
habeas data).
The
distinction
between
final
and
interlocutory orders in civil actions for
purposes of determining the issue of
applicability is not strictly applicable to orders
in special proceedings. Rule 109 specifies the
orders from which appeals may be taken
[Regalado].
Rule 33 regarding judgment on demurrer to
evidence is applicable to special proceedings
[Matute v. CA (1969)].
PAGE 191
Special Proceeding
To protect/enforce a To
establish
right
or
prevent/ right/status/fact
redress a wrong
LIMITED
pleadings
not
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Jurisdiction
MTC if gross value of
the estate does not
exceed P300,000, or
does
not
exceed
P400,000 in Metro
Manila otherwise, RTC
Escheat
Person dies intestate leaving no heir Residence of RTC
the decedent or if non-resident, place where he had
estate
Reversion where land lies in whole or in part
RTC
Unclaimed Balances Act where deposits are located RTC
Appointment
of Where minor resides
Family Court
Guardians
Where incompetent resides
RTC
Appointment
of Where will was allowed or
RTC
Trustees
Where the property or portion thereof affected by the
trust is situated
Adoption
Domestic where adopter resides
Family Court
Inter-country Adoption ICAB or, where adoptee ICAB or Family Court
resides if filed with the Family Court
Rescission of Adoption Where adoptee resides
Family Court
Habeas Corpus
If filed with RTC, where detainee is detained
SC, CA, RTC, MTC in the
province or city in case
there is no RTC judge
Sandiganbayan, only in
aid of its appellate
jurisdiction
For the custody of minors, where petitioner resides or Family Court, CA, SC
where minor may be found
Habeas Data
Where the petitioner or respondent resides, or that RTC generally
which has jurisdiction over the place where the data If concerning public
or information is gathered, collected, or stored, at the data
files
or
option of the petitioner
government offices, SC,
CA or Sandigabayan
Amparo
Where the threat, act or omission was committed or RTC, Sandiganbayan,
any of its elements occurred
CA, SC or any justice
thereof
Change of Name
Judicial - where petitioner resides
RTC
Administrative:
Local Civil Registry/
Local civil registry where the record sought to be Philippine consulate
changed is kept
Local civil registry of the place of residence of the
interested party (only if petitioner migrated to
another place in the Philippines and it is
impractical to file where records sought to be
changed are kept)
Philippine consulates only for non-resident citizen
PAGE 192
UP LAW BOC
Special Proceeding
Appointment
of
Representative
of
Absentee/ Declaration
of Absence
Cancellation
/
Correction of Entries in
Civil Registries
Petition for declaration
of nullity, annulment,
legal separation
SPECIAL PROCEEDINGS
REMEDIAL LAW
Venue
Where Absentee resides before his disappearance
Jurisdiction
RTC
Settlement of Estate of
Deceased Persons, Venue
and Process
Modes of Settlement of Estate [Herrera]
(1) Extrajudicial Settlement of Estate [Rule 73,
Section 1]
(2) Summary Settlement of Estate of Small
Value [Rule 74, Section 2]
(3) Partition [Rule 69]
(4) Probate of Will [Rule 75-79]
(5) Petition for Letters of Administration [Rule
79]
JURISDICTION
JURISDICTION OF RTCS
JURISDICTION OF MTCS
Exceptions:
(1) In an appeal from that court, in the original
case, OR
(2) When the want of jurisdiction appears on
the record.
Inhabitant
of
the RTC of the province in
Philippines at time of which he resides
death (citizen/alien)
PAGE 193
Decedent
Venue
UP LAW BOC
SPECIAL PROCEEDINGS
EXTENT OF JURISDICTION
PROBATE COURT
OF
REMEDIAL LAW
Summary Settlement of
Estates
General Rule: Judicial Settlement
Exception:
(1) Extrajudicial Settlement of Estate
(2) Summary Settlement of Estate of Small
Value
Extrajudicial Settlement
Summary Settlement
No debts
PAGE 194
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
EXTRAJUDICIAL SETTLEMENT
BY AGREEMENT BETWEEN
HEIRS, WHEN ALLOWED
BOND REQUIREMENT
PROCEDURE
VALIDITY OF COMPROMISE
AGREEMENT
PAGE 195
UP LAW BOC
SPECIAL PROCEEDINGS
BOND REQUIREMENT
SUMMARY SETTLEMENT OF
ESTATES OF SMALL VALUE
REMEDIAL LAW
PROCEDURE
Death of the decedent
Application for summary settlement with an
allegation that the gross value of the estate
does not exceed P10K
Publication of notice of the fact of summary
settlement once a week for 3 consecutive weeks
in a newspaper of general circulation in the
province, and after such other notice to
interested persons as the court may direct
WHEN ALLOWED
PAGE 196
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIES OF AGGRIEVED
PARTIES AFTER EXTRAJUDICIAL SETTLEMENT OF
ESTATE
(1) CLAIM AGAINST THE BOND OR
THE REAL ESTATE WITHIN TWO
YEARS
BOND AND REAL ESTATE REMAIN
CHARGED
Rule: bond and real estate shall remain charged
with a liability to creditor, heirs or other persons
for the full period of 2 years after such
distribution, notwithstanding any transfers of
real estate that may have been made.
When applicable: there is an heir or other person
who
(1) has been unduly deprived of his lawful
participation in the estate:
He shall have a right to compel the
settlement of the estate in the courts for
the purpose of satisfying such lawful
participation
(2) has been unduly deprived of his lawful
participation payable in money: The court
having jurisdiction of the estate may, by
order for that purpose, after hearing,
settle the amount of such debts or
lawful participation, and
may issue execution against the bond or
against the real estate belonging to the
deceased, or both. [Sec. 4, Rule 74]
When not applicable:
(1) To persons who have participated or taken
part or had notice of the extrajudicial
partition
(2) When the provisions of Sec. 1 of Rule 74 have
been strictly complied with (all persons or
heirs of the decedent have taken part in the
extrajudicial settlement or are represented
by themselves or through guardians)
PAGE 197
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
NATURE OF PROBATE
PROCEEDING
(1) In Rem
(2) Mandatory
(3) Imbued with public policy, thus
imprescriptible and the doctrine of estoppel
does not apply
General Rule: A probate proceeding only looks
at extrinsic validity.
Extrinsic validity - due execution of the will
(whether or not the testator, being of sound
mind, freely executed the will in accordance
with the formalities prescribed by law)
Exception:
Principle of Practical Consideration
The probate court may pass upon the intrinsic
validity of the will because there is apparent
defect in its face this is also known as the
principle of practical consideration [Nepomuceno
v CA (1985)]. (Ex. When on the face of the will
the petitioner appears to be preterited)
But the remedy of certiorari is available, where
the grounds for dismissal are indubitable (e.g.
grave abuse of discretion of the judge when
there is clearly preterition and the said judge
still continues the probate proceedings)
PAGE 198
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
PAGE 199
Allowance or
Disallowance of Will
CONTENTS OF PETITION FOR
ALLOWANCE OF WILL
UP LAW BOC
SPECIAL PROCEEDINGS
DEFECT IN PETITION
REPROBATE
Wills proved and allowed in a foreign country,
according to the laws of such country, may be
allowed, filed, and recorded by the proper Court
of First Instance in the Philippines (now RTC).
[Sec. 1, Rule 77]
PAGE 200
REMEDIAL LAW
EFFECT
(1) Minor
(2) Non-resident
(3) One who, in the opinion of the court, is unfit
to exercise the duties of the trust by reason
of drunkenness, improvidence, want of
understanding or integrity or conviction of an
offense involving moral turpitude. [Sec. 1,
Rule 78]
UP LAW BOC
SPECIAL PROCEEDINGS
ORDER OF PREFERENCE
ORDER OF PREFERENCE IN THE
GRANT OF ADMINISTRATION
REASON
FOR
PREFERENCE
ORDER
OF
PAGE 201
REMEDIAL LAW
OPPOSITION TO ISSUANCE OF
LETTERS TESTAMENTARY;
SIMULTANEOUS FILING OF
PETITION FOR
ADMINISTRATION
Who may oppose - Any person interested in will
[Sec. 1, Rule 79]
GROUNDS
UP LAW BOC
SPECIAL PROCEEDINGS
FORM REQUIRED
State in writing the grounds why letter should
not issue; the court shall then hear and pass
upon sufficiency of such grounds. [Sec. 1, Rule
79]
CONTENTS
1) Jurisdictional facts
2) Name, age and residence of heirs and the
name and age of creditors
3) Probable value of the estate
4) Name of person to whom letter is prayed
[Sec. 2, Rule 79]
JURISDICTIONAL FACTS
(1) Death of the testator
(2) His/her residence at the time of death in the
province where the probate court is sitting
or,
(3) If an inhabitant of a foreign country, his/her
having left his estate in such province [Diez
v. Serra, (1927)]
PUBLICATION AND NOTICE
Publication of notice for 3 weeks successively
and notice to heirs, creditors and interested
persons, if place of residence is known, are
jurisdictional. [Sec. 3, Rule 79 and Secs. 3 & 4,
Rule 76]
SIMULTANEOUS FILING OF OPPOSITION
AND PETITION
A petition may, at the same time, be filed for
letters of administration to himself, or to any
competent person or person named in the
opposition. [Sec. 4, Rule 79]
Lack of interest in the proceedings is equal to
lack of legal capacity to institute proceedings.
[Herrera]
Appointment of regular administrator is final
and thus, appealable.
PAGE 202
REMEDIAL LAW
Administrator
Administrator
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
RESTRICTIONS ON POWERS OF
EXECUTORS AND ADMINISTRATORS
(1) EXECUTOR
OR
ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND
INCOME
IN
TENANTABLE
PAGE 203
UP LAW BOC
SPECIAL PROCEEDINGS
PAGE 204
REMEDIAL LAW
Not included:
(1) Wearing apparel of surviving husband or
wife and minor children
(2) The marriage bed and bedding
(3) Such provisions and other articles as will
necessarily be consumed in the subsistence
of the family of the deceased [Sec. 2, Rule
83]
Widows allowance
The widow and minor or incapacitated children
shall, during the settlement of the estate,
receive such allowance under the direction of
the court [Sec. 3, Rule 83]
Accounting mandatory
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Sec. 8, Rule 85]
The fact that the heirs of the estate have
entered into an extrajudicial settlement and
partition in order to put an end to their
differences cannot in any way be interpreted as
a waiver of the objections of the heirs to the
accounts submitted by the administrator. [Joson
v. Joson (1961)]
Examination on Oath by Court
As to the correctness of his account before the
same is allowed, except when no objection is
made to the allowance of the account and its
correctness is satisfactorily established by
competent proof [Sec. 9, Rule 85]
The heirs, legatees, distributees, and creditors of
the estate shall have the same privilege as the
executor/administrator of being examined on
oath on any matter relating to an administration
account. (Sec. 9, Rule 85)
APPOINTMENT OF SPECIAL
ADMINISTRATOR
WHEN APPOINTED
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
WHEN SPECIAL
DUTIES
Special Administrator
PAGE 205
ADMINISTRATOR
CEASES
REMOVAL
OF
EXECUTOR
ADMINISTRATOR
OR
Grounds
to
UP LAW BOC
SPECIAL PROCEEDINGS
REMOVAL OF SPECIAL
ADMINISTRATORS
Ocampo v Ocampo (2010)
The probate court may appoint or remove
special administrators based on grounds other
than those enumerated in the Rules at its
discretion, such that the need to first pass upon
and resolve the issues of fitness or unfitness and
the application of the order of preference under
Section 6 of Rule 78, as would be proper in the
case of a regular administrator, do not obtain.
As long as the discretion is exercised without
grave abuse, and is based on reason, equity,
justice, and legal principles, interference by
higher courts is unwarranted.
PURPOSE OF PRESENTATION
OF CLAIMS AGAINST ESTATE
(1) To protect the estate of the deceased.
PAGE 206
REMEDIAL LAW
EXCEPTION
BELATED CLAIMS
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed provided they are filed within 1
month from the expiration of such period but in
no case beyond the date of entry of the order of
distribution. [Danan v. Buencaminao (1981); Sec.
2, Rule 86]
Publication for 3 consecutive weeks and posting
in 4 public places in the province and in 2 public
places in the municipality where the decedent
last resided. [Sec. 4, Rule 86]
STATUTE OF NON-CLAIMS
CLAIMS COVERED (Exclusive)
UP LAW BOC
SPECIAL PROCEEDINGS
PAGE 207
REMEDIAL LAW
ALTERNATIVE REMEDIES OF A
MORTGAGE CREDITOR UPON DEATH
OF DEBTOR:
CLAIM OF EXECUTOR OR
ADMINISTRATOR AGAINST THE
ESTATE
PROCEDURE TO FOLLOW IF THE EXECUTOR
OR ADMINISTRATOR HAS A CLAIM
AGAINST THE ESTATE HE REPRESENTS
(1) Executor/Administrator shall give notice
thereof, in writing, to the court
(2) The court shall appoint a special
administrator who shall have the same
powers and liabilities as the general
executor/administrator in the adjustment of
such claim.
(3) The court may order the executor or
administrator to pay to the special
administrator necessary funds to defend
such claim. (Sec. 8, Rule 86)
UP LAW BOC
SPECIAL PROCEEDINGS
PAYMENT OF DEBTS
DEBTS PAID IN FULL IF ESTATE
SUFFICIENT
PAGE 208
REMEDIAL LAW
In which case
The whole of the real estate not disposed of
by will, or so much thereof as is necessary, may
be sold, mortgaged, or otherwise encumbered for
that purpose by the executor/administrator,
Court approval must be obtained first, and
Any deficiency shall be met by contributions
in accordance with the provisions of Sec. 6 of
this rule. [Sec. 3, Rule 88]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
INSOLVENT
RESIDENT
WITH
FOREIGN CREDITORS AND FOREIGN
CLAIMS PROVEN IN ANOTHER
COUNTRY
DIVIDENDS TO BE PAID
PROPORTION TO CLAIMS
IN
INSOLVENT NON-RESIDENT
PAGE 209
UP LAW BOC
SPECIAL PROCEEDINGS
CREDITORS TO BE PAID
ACCORDANCE WITH TERMS
ORDER
IN
OF
PAGE 210
REMEDIAL LAW
Requisites
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
(3) Court must hear the application.
when:
(1) Personal estate is insufficient to pay the
debts
(2) Sale of personal estate may injure the
business of persons interested in the estate
(3) Property appropriated by testator in his will
is insufficient to pay debts [Sec. 2, Rule 89]
Sold, even if not to pay the debts when:
Sale will be beneficial to the heirs, devisees,
legatees and other interested persons and is not
inconsistent with the provisions of the will [Sec.
4, Rule 89]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
WHEN RECOVERY OF
PROPERTY FRAUDULENTLY
CONVEYED BY DECEASED MAY
BE RECOVERED
RECOVERY BY THE
EXECUTOR/ADMINISTRATOR OF
PROPERTY FRAUDULENTLY
CONVEYED
EXECUTOR OR ADMINISTRATOR
MAY BRING OR DEFEND ACTIONS
WHICH SURVIVE DEATH
PAGE 211
UP LAW BOC
SPECIAL PROCEEDINGS
RECOVERY BY CREDITOR OF
PROPERTY FRAUDULENTLY
CONVEYED
REMEDIAL LAW
LIQUIDATION
PAGE 212
PROJECT OF PARTITION
A project of partition is merely a proposal for the
distribution of the hereditary estate which the
court may accept or reject. [Solivio v. CA, (1990)]
The executor/administrator has no duty to
prepare and present the same under the Rules.
The court may, however, require him to present
such project to better inform itself of the
condition of the estate. [3 Moran 541, 1980 Ed.]
It is the court that makes that distribution of the
estate and determines the persons entitled
thereto
(1) On application of executor/administrator or
person interested in the estate
(2) Notice
(3) Hearing
Court shall assign the residue of the estate to
the persons entitled to the same, naming them
and the proportions, or parts, to which each is
entitled.
Such persons may demand and recover their
respective
shares
from
the
executor/administrator, or any other person
having the same in his possession.
If there is a controversy as to who are heirs or
shares such shall be heard and decided as in
ordinary cases. [Sec. 1, Rule 90]
UP LAW BOC
EFFECT OF FINAL
DISTRIBUTION
SPECIAL PROCEEDINGS
DECREE
OF
PAGE 213
REMEDIAL LAW
Trustees
DISTINGUISHED FROM
EXECUTOR OR
ADMINISTRATOR
Araneta v. Perez (1962)
A trustee, like an executor/administrator, holds
an office of trust, particularly when the trustee
acts as such under judicial authority.
The duties of executor/administrator are
however, fixed and/or limited by law whereas
those of the trustee of an express trust are,
usually governed by the intention of the trustor
or the parties, if established by contract.
Besides, the duties of trustees may cover a wider
range than those of executor/administrator of
the estate of deceased persons.
BOND
Trustee must file bond before performing duties
(1) Filed with the clerk of court
(2) Amount fixed by the judge
(3) Payable to the government of Philippines
(4) Sufficient and available for the protection of
any party in interest
If the trustee fails to furnish a bond as required
by the court, he fails to qualify as such.
Nonetheless, the trust is not defeated by such a
failure to give bond, he is considered to have
declined or resigned the trust. [Sec. 5, Rule 98]
UP LAW BOC
SPECIAL PROCEEDINGS
WHEN EXEMPT
(1) When testator has directed such exemption;
or
(2) All persons beneficially interested in the
trust, request such exemption
Exemption may be cancelled by the court at any
time. [Sec. 5, Rule 98]
CONDITIONS
(1) Inventory
That the trustee will make and return to the
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the
time of the making of such inventory shall
have come to his possession or knowledge.
Exemption from inventory:
(a) When trustee is not the original trustee
appointed
(b) Courts discretion
(c) If an inventory has already been filed
(2) Faithful management
That he will manage and dispose of all such
estate, and faithfully discharge his trust in
relation thereto, according to law and the
will of the testator or the provisions of the
instrument or order under which he is
appointed
(3) Accounting
That he will render upon oath at least once
a year until his trust is fulfilled, unless he is
excused in any year by the court, a true
account of the property in his hands and the
management and disposition thereof, and
will render such other accounts as the court
may order
(4) Settlement of account and delivery of estate.
That at the expiration of his trust he will
settle his account in court and pay over and
deliver all the estate remaining in his hands,
or due from him on such settlement, to the
person or persons entitled to thereto. [Sec.
6, Rule 98]
PAGE 214
REMEDIAL LAW
RESIGNATION
EXTENT OF
TRUSTEE
AUTHORITY OF
NATURE OF POSSESSION
The possession of the property by the trustee is
not an adverse possession, but only a
possession in the name and in behalf of the
owner of the same.
A trustee may acquire the trust estate by
prescription provided there is a repudiation of
the trust, such repudiation being open, clear
and unequivocal, known to the cestui que trust
[Salinas v. Tuazon (1931)].
TERRITORIALITY OF AUTHORITY OF
TRUSTEE
UP LAW BOC
SPECIAL PROCEEDINGS
Escheat
REMEDIAL LAW
PROCEDURE
WHEN TO FILE
PAGE 215
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDY OF RESPONDENT
AGAINST PETITION; PERIOD
FOR FILING A CLAIM
REMEDIAL LAW
FILED BY WHOM
GUARDIANSHIP OF INCOMPETENT
PROCEDURE
Guardianship
Filing of Petition
PAGE 216
GENERAL
POWERS
DUTIES OF GUARDIANS
AND
UP LAW BOC
SPECIAL PROCEEDINGS
SPECIFIC DUTIES
(1) To pay the just debts of the ward out of:
(a) Personal property and the income of the
real property of the ward, if the same is
sufficient
(b) Real property of the ward upon
obtaining an order for its sale or
encumbrance. [Sec. 2, Rule 96]
(2) To settle all accounts of his ward [Sec. 3,
Rule 96]
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects [Sec. 3,
Rule 96]
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose [Sec. 3, Rule 96]
(5) To manage the property of the ward frugally
and without waste, and apply the income
and profits thereon, insofar as may be
necessary, to the comfortable and suitable
maintenance of the ward. If such income
and profits be insufficient for that purpose,
to sell or encumber the real or personal
property, upon being authorized by the
court to do so [Sec. 4, Rule 96]
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court after
hearing
(b) Notice to relatives of the ward, and
(c) A careful investigation as to the
necessity and propriety of the proposed
action. [Sec. 5, Rule 96]
(7) To submit to the court a verified inventory of
the property of the ward:
(a) Within three months after his
appointment
(b) Annually, and
(c) Whenever required upon the application
of an interested person. [Sec. 7, Rule 96]
(8) To report to the court any property of the
ward not included in the inventory which is
discovered, or succeeded to, or acquired by
the ward within 3 months after such
discovery, succession, or acquisition [Sec. 4,
Rule 96]
PAGE 217
REMEDIAL LAW
REIMBURSEMENT OF REASONABLE
EXPENSES
PAYMENT OF COMPENSATION
EMBEZZLEMENT, CONCEALMENT,
OR CONVEYANCE OF WARDS
PROPERTIES
COMPLAINT FILED BY WHOM
(1) The guardian or ward, or
(2) Any person having actual or prospective
interest in the property of the ward.
COURT EXAMINATION
The court may:
(1) require any person suspected of having
embezzled, concealed, or disposed of any
money, goods or interest, or a written
instrument belonging to the ward or his
property to appear for examination
concerning any thereof, and
(2) issue such orders as would secure the
property against such embezzlement,
concealment or conveyance [Sec. 6, Rule 96]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
PAGE 218
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
WHERE TO FILE
Resident minor - Family Court of the province or
city where the minor actually resides
Non-resident minor - Family Court of the
province or city where his property or any part
thereof is situated [Sec. 3]
GROUNDS FOR FILING
(1) Death, continued absence, or incapacity of
his parents
(2) Suspension, deprivation or termination of
parental authority
(3) Remarriage of his surviving parent, if the
latter is found unsuitable to exercise
parental authority
(4) When the best interests of the minor so
require. [Sec. 4]
CONTENTS OF PETITION
(1) Jurisdictional facts
(2) Name, age and residence of the prospective
ward
(3) Ground rendering the appointment
necessary or convenient
(4) Death of the parents of the minor or the
termination, deprivation or suspension of
their parental authority
(5) Remarriage of the minors surviving parent
(6) Names, ages, and residences of relatives
within the 4th civil degree of the minor, and
of persons having him in their care and
custody
(7) Probable value, character and location of
the property of the minor
(8) Name, age and residence of the person for
whom letters of guardianship are prayed.
The petition shall be verified and accompanied
by a certification against forum shopping.
PAGE 219
How filed
If by interested person - by filing a written
opposition. [Sec. 10]
If by social worker by filing an intervention if
based on finding the petition should be denied.
[Sec. 9]
Grounds for Opposition
(1) Majority of the minor
(2) Unsuitability of the person for whom letters
are prayed.
UP LAW BOC
SPECIAL PROCEEDINGS
PROCEDURE
Filing of petition.
Court shall fix a time and place for hearing.
Notice requirement
Court shall cause reasonable notice to be given
to:
The persons mentioned in the petition
The minor, if he is 14 years of age or over
- For non-resident minors, notice shall be
given to the minor by publication or any
other means as the court may deem
proper.
The court may also direct other general or
special notice to be given.
Case Study Report
Court shall order a social worker to conduct a
case study of the minor and all the prospective
guardians and submit his report and
recommendation to the court for its guidance
before the scheduled hearing.
Hearing
Compliance with notice requirement must
be shown.
The prospective ward shall be presented to
the court. If the minor is non-resident, the
court may dispense with his presence.
At the discretion of the court, the hearing on
guardianship may be closed to the public.
The records of the case shall not be
released without court approval.
Issuance or denial of letters of guardianship.
Service of final and executory judgment or order
upon the Local Civil Registrar of the
municipality or city where the minor resides and
the Register of Deeds of the place where his
property or part thereof is situated, who shall
annotate the same in the corresponding title,
and report to the court their compliance within
fifteen days from receipt of the order.
PAGE 220
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
LIABILITY
In case of breach of any of its conditions, the
guardian may be prosecuted in the same
proceeding for the benefit of the ward or of any
other person legally interested in the property.
[Sec. 15]
PAGE 221
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Adoption
A juridical act which creates between two persons a relation similar to that which results from filiation.
[Prasnick v. Republic, 98 Phil. 669 (1956)]
Objective: Best interest of the child
PAGE 222
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
(b) The legitimate son/daughter of one (c) Who are legally free, meaning children
spouse by the other spouse;
who have been voluntarily or involuntarily
committed to the DSWD [Sec. 3(f) and Sec.
(c) An illegitimate son/daughter by a 8]
qualified adopter to improve his/her status
to that of legitimacy;
PAGE 223
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Venue
Trial Custody
PAGE 224
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Rescission
SEC. 48. NEW PLACEMENT FOR CHILD. In the event of termination of the preadoptive relationship, the Board shall
identify from the Roster of Approved
Applicants a suitable family with whom to
place the child. The Central Authority
and/or the FAA may also propose a
replacement family whose application
shall be filed for the approval of the Board.
No adoption shall take place until after the
Board has approved the application of
such replacement family.
PAGE 225
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
(2) LEGITIMACY
The adoptee shall be considered legitimate
son/daughter of the adopter for all intents and
purposes, and entitled to all rights and
obligations provided by law to legitimate
children born to them without discrimination of
any kind. Adoptee is entitled to love, guidance,
and support. [Sec. 17, RA 8552]
Exceptions:
1) If one spouse seeks to adopt the legitimate
child of other
2) If one spouse seeks to adopt his own
illegitimate child, provided the other spouse
has signified his/her consent
3) If spouses are legally separated [Sec. 7(c),
RA 8552]
(3) SUCCESSION
Adopter and adoptee shall have reciprocal
rights of succession without distinction from
legitimate filiation, in legal and intestate
succession. If adoptee and his/her biological
parents had left a will, the law on testamentary
succession shall govern. [Sec. 18, RA 8552]
PROCEDURE
Order of hearing
Publication at least once a week for three
consecutive weeks in newspaper of general
circulation in province or city where the court is
situated. Court shall notify the Solicitor General
if the petition prays for a change of name
BOOK OF ADOPTIONS
CONFIDENTIALITY
PROCEEDINGS
OF
ADOPTION
EFFECTS OF ADOPTION
RESCISSION OF ADOPTION
PAGE 226
UP LAW BOC
SPECIAL PROCEEDINGS
EFFECTS OF RESCISSION OF
ADOPTION
(1) RESTORATION OF PARENTAL AUTHORITY
to original parent if adoptee is a minor
(2) RECIPROCAL RIGHTS AND OBLIGATIONS
of adopter and adoptee are EXTINGUISHED
(3) CANCELLATION
of
amended
birth
certificate and RESTORE ORIGINAL
(4) SUCCESSIONAL RIGHTS SHALL REVERT to
its status PRIOR TO ADOPTION, as of the
date of final judgment of rescission
(5) VESTED RIGHTS shall be RESPECTED [Sec.
20, RA 8552]
INTER-COUNTRY ADOPTION
RA 8043 (Inter-country Adoption Act) governs
the adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing
abroad. [Sec. 3 (a)]
PAGE 227
REMEDIAL LAW
WHEN ALLOWED
Inter-country Adoption as the Last Resort; Best
Interest of the child as objective
The Inter-country Adoption Board (ICAB) shall
ensure that all possibilities for adoption of the
child under the Family Code (domestic adoption)
have been exhausted and that inter-country
adoption is in the best interest of the child [Sec.
7, RA 8043]
UP LAW BOC
SPECIAL PROCEEDINGS
TEMPORARY
RELEASE
CONSTITUTE RESTRAINT
REMEDIAL LAW
MAY
ELEMENTS
(a) Where a person continued to be unlawfully
denied one or more of his constitutional
rights
(b) Where there is present denial of due process
(c) Where the restraint is not merely
involuntary but appear to be unnecessary
(d) Where a deprivation of freedom originally
valid has in light of subsequent
developments become arbitrary [Moncupa
v. Enrile (1986)]
General Rule: Release of detained person,
whether permanent or temporary, makes the
petition for habeas corpus moot.
Exceptions:
1) Doctrine of Constructive Restraint- Unless
there are restraints attached to his release
which precludes freedom of action in which
case the Court can still inquire into the
nature of his involuntary restraint
NATURE
PAGE 228
UP LAW BOC
SPECIAL PROCEEDINGS
PAGE 229
REMEDIAL LAW
WHC IS PROPER:
Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v. Galang,
(1963)]
Where the court has no jurisdiction to impose
the sentence [Banayo v. President of San
Pablo, 2 Phil. 413 (1903)]
UP LAW BOC
SPECIAL PROCEEDINGS
PROCEDURE:
PAGE 230
REMEDIAL LAW
DISTINCTION BETWEEN
PEREMPTORY WRIT AND
PRELIMINARY CITATION
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
APPLICABILITY
PAGE 231
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
MANDATORY PRE-TRIAL
PAGE 232
UP LAW BOC
SPECIAL PROCEEDINGS
INTERIM RELIEFS
PAGE 233
REMEDIAL LAW
JUDGMENT
UP LAW BOC
SPECIAL PROCEEDINGS
APPEAL
Appeal from the decision shall be allowed,
unless the appellant has filed a motion for
reconsideration or new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within 15
days from notice of the denial of the motion for
reconsideration or new trial and serving a copy
on the adverse parties. [Sec. 19]
REMEDIAL LAW
PAGE 234
UP LAW BOC
Rights involved
Situations
applicable
Party
authorized to
file
Respondents
Before which
court or judicial
authority filed
SPECIAL PROCEEDINGS
REMEDIAL LAW
PAGE 235
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Writ of Amparo
WRIT OF AMPARO
COVERAGE
Available to any person whose right to life,
liberty and security is violated or threatened
with violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
The writ shall cover:
(1) Extralegal killings (killings committed
without due process of law) and
(2) Enforced disappearances [Sec. 1, Amparo
Rule]
ELEMENTS OF ENFORCED
DISAPPEARANCE:
(a) An arrest, detention or abduction of a
person by a government official or
organized groups or private individuals
acting with the direct or indirect
acquiescence of the government
(b) The refusal of the State to disclose the fate
or whereabouts of the person concerned or
a refusal to acknowledge the deprivation of
liberty which places such persons outside
PAGE 236
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
CONTENTS OF PETITION
(1) Necessary
for
the
prevention
of
indiscriminate and groundless filing of
petitions for amparo which may even
prejudice the right to life, liberty or security
of the aggrieved party
(2) Untimely resort to the writ by a nonmember of the family may endanger the life
of the aggrieved party
WHERE TO FILE
PAGE 237
CONTENTS OF RETURN
Upon the filing of the petition, the court shall
order the issuance of the writ.
The respondent shall file a verified written
return together with supporting affidavits within
72 hours after service of the writ.
Contents:
(1) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission
UP LAW BOC
SPECIAL PROCEEDINGS
TO WHOM RETURNABLE
REMEDIAL LAW
PROHIBITED
MOTIONS
PLEADINGS
AND
JUDGMENT
INSTITUTION
ACTIONS
OF
SEPARATE
PAGE 238
UP LAW BOC
SPECIAL PROCEEDINGS
EFFECT OF FILING OF A
CRIMINAL ACTION
CONSOLIDATION
REMEDIAL LAW
PAGE 239
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
IF RESPONDENT IS A
OFFICIAL OR EMPLOYEE
Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent. [Sec. 15]
PUBLIC
IF RESPONDENT IS A PRIVATE
INDIVIDUAL OR ENTITY
AVAILABILITY OF WRIT
QUANTUM OF PROOF IN
APPLICATION FOR ISSUANCE
OF WRIT: SUBSTANTIAL
EVIDENCE
PAGE 240
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
See Annex A.
PAGE 241
CONSOLIDATION
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Applicability
Nature
Rule 103
Rule 108
RA 9048
Substantial Changes in Substantial changes in Change of First Names or
name
entries in the civil registry Nicknames
(other than name)
Change brought about by
clerical or typographical errors
(includes day and month in the
date of birth or sex), except
nationality, age, or status
Judicial
Judicial
Administrative
EXCEPTIONS:
(1) If the petitioner has already
migrated to another place in
the country, the petition shall
be filed with local civil
registrar of the place where
the interested party is
presently
residing
or
domiciled
Where Filed
PAGE 242
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Title: In Re: Petition for
Change of Name of X,
also known as Y and Z, to
ABC. X, Petitioner.
Names or Aliases of the
Applicant (must appear
in the caption of the
petition)
Omission is fatal to the
petition
Rule 108
RA 9048
(1) Facts necessary to establish
the merits of the petition.
(2) A showing that the petitioner
is competent to testify to the
matters stated.
(3) Particular erroneous entry or
entries which are sought to
be corrected and/or the
change sought to be made.
Contents of
Petition
REMEDIAL LAW
Form of
Petition
PAGE 243
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
(1) Filing of petition for
change of name.
REMEDIAL LAW
Rule 108
(1) Filing of petition
RA 9048
(1) Filing of petition and its
supporting papers in 3 copies
(2) Court
shall
to be distributed to:
promulgate an order
The concerned city or
fixing the time and
municipal civil registrar or
place for hearing the
the consul general
petition and cause
The Office of the Civil
reasonable notice to
Registrar General
be given to the
The petitioner
persons named in the
petition.
(2) The City or Municipal
(2) Court
shall
promulgate an order
fixing a date and
place for hearing the
petition. The date set
for the hearing shall
NOT be:
Within 30 days prior to
an election AND
Registrar or the Consul
Within 4 months after Civil registrar and all
General shall post the
the last publication of persons who have or claim
petition in a conspicuous
the notice.
any interest which would
place for ten 10 consecutive
be affected thereby shall
(1) Court shall direct a be made parties to the
days after he finds the
copy of the order to proceeding
petition and its supporting
be published before
documents sufficient in form
(1) Court shall direct a
the hearing
and substance.
copy of the order to be
published before the (3) The petition shall be
At least once a week
Procedure for
hearing
for 3 successive
published at least once a
Changing of
weeks
At least once a week for
week for 2 consecutive weeks
Name
3 successive weeks
in a newspaper of general
In some newspaper
circulation.
of general circulation
In some newspaper of
published in the
general
circulation
province.
published
in
the (4) The City or Municipal
Registrar or the Consul
province.
General shall render a
(2) Hearing shall be
(2)
File
opposition
decision not later than 5
conducted.
Within 15 days from
working days after the
The SolGen or the
notice of the petition or
proper provincial or
completion of the posting
from the last date of
city
fiscal
shall
and/
or
publication
publication
appear on behalf of
requirement.
He
shall
the Government of
transmit
a
copy
of
his
(3) Hearing
shall
be
the Republic.
decision together with the
conducted.
records of the proceedings to
(3) Judgment granting
the Office of the Civil
or
denying
the
Court may expedite the
proceedings and also
Registrar General within 5
change of name.
grant
preliminary
working days from the date
injunction
for
of the decision.
preservation of rights of
the parties
PAGE 244
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Rule 103
Rule 108
RA 9048
(4) Copy of judgments (4)Judgment granting or
shall be furnished the
denying the change of Where the petition is denied by
the city or municipal civil
civil registrar of the
name.
registrar or the consul
municipality or city
general, the petitioner may
where the court (5)Copy of judgments
either appeal the decision to
shall be furnished the
issuing the same is
the civil registrar general or
civil registrar concerned
situated, who shall
file the appropriate petition
who
shall
annotate
the
with the proper court.
forthwith enter the
same in the records
same in the civil
(5) The Civil Registrar General
register.
shall, within 10 working days
from receipt of the decision
granting a petition, exercise
the power to impugn such
decision by way of an
objection.
Grounds for objection
(a) The error is not clerical or
typographical
(b) The correction of an entry
or entries in the civil
register is substantial or
controversial as it affects
the civil status of a person
(c) The basis used in
changing the first name or
nickname of a person
does not fall under one of
the valid grounds.
If the civil registrar general fails
to exercise his power to impugn
the decision of the city or
municipal registrar or of the
consul general within the
period, such decision shall
become final and executory.
(6) The civil registrar general
shall immediately notify the
city or municipal civil
registrar or the consul
general of the action taken
on the decision.
PAGE 245
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Rule 108
REMEDIAL LAW
RA 9048
(7) Upon receipt of the notice
thereof, the city or municipal
civil registrar or the consul
general shall notify the
petitioner of such action.
(8) Appeal. The petitioner may
seek reconsideration with the
civil registrar general or file
the appropriate petition with
the proper court.
Grounds for
Change of
Name
Republic v. Hernandez
(1996)
Valid
Grounds
for
Change of Name
(1) The
name
is
ridiculous, tainted
with dishonor or
extremely difficult to
write or pronounce.
(2) Change results as a
legal consequence
of legitimation
(3) The change will
avoid confusion.
(4) A sincere desire to
adopt a Filipino
name to erase signs
of former alienage
(Ang
Chay
vs.
Republic, 1970)
(5) Having continuously
used and been
known
since
childhood by a
Filipino
name,
having
been
unaware of alien
parentage (Uy vs.
Republic, 1965)
PAGE 246
N/A
NOTE: The Civil Registrar
General is given the power to
object to the decision of the
Local Civil Registrar.
Sec. 4: Grounds for Change of
First Name or Nickname
(1) The first name or nickname
is ridiculous, tainted with
dishonor
or
extremely
difficult
to
write
or
pronounce.
(2) The new first name or
nickname
has
been
habitually and continuously
used by the petitioner and
he has been publicly known
by the first name or
nickname in the community.
(3) The change will avoid
confusion.
PAGE 247
UP LAW BOC
SPECIAL PROCEEDINGS
Absentees
PURPOSE OF THE RULE
In Re: Petition for Declaration of Absence of
Roberto L. Reyes (1986)
The declaration of absence made in accordance
with the provisions of the Civil Code has for its
SOLE PURPOSE to enable the taking of the
necessary precautions for the administration of
the estate of the absentee.
There is a need to have a person judicially
declared an absentee when:
(1) he has properties which have to be taken
cared of or administered by a representative
appointed by the Court [Article 384, Civil
Code];
(2) the spouse of the absentee is asking for
separation of property [Article 191, Civil
Code]; or
(3) his wife is asking the Court that the
administration of an classes of property in
the marriage be transferred to her [Article
196, Civil Code].
PAGE 248
REMEDIAL LAW
UP LAW BOC
SPECIAL PROCEEDINGS
WHEN TERMINATED
(1) Absentee appears personally or through an
agent
(2) Absentees death is proved and heirs appear
(3) Third person appears, showing that he
acquired title over the property of the
absentee
Cancellation or Correction
of Entries in the Civil
Registry
ENTRIES SUBJECT TO
CANCELLATION OR
CORRECTION UNDER RULE 108,
IN RELATION TO RA 9048
REMEDIAL LAW
OF
AN
PAGE 249
UP LAW BOC
SPECIAL PROCEEDINGS
Appeals
in
Proceedings
Special
PAGE 250
REMEDIAL LAW
WHEN TO APPEAL
In a special proceeding, the period of appeal is
30 days. [Sec. 3, Rule 41]
The appeal period may be interrupted by the
filing of an MFR/MNT. Once the appeal period
expires without an appeal/MF/MNT, the order
becomes final. [Sec. 3, Rule 41]
However, habeas corpus, amparo and habeas
data cases have different periods of appeal. See
Annex A.
MODES OF APPEAL
NOTICE and RECORD ON APPEAL
REQUIRED [Sec. 3, Rule 41]
Rule 109 contemplates multiple appeals during
the pendency of special proceedings. A record
on appeal in addition to the notice of appeal
is thus required to be filed as the original
records of the case should remain with the trial
court to enable the rest of the case to proceed in
the event that a separate and distinct issue is
resolved by said court and held to be final.
However, a record on appeal is not necessary
where no other matter remained to be heard
and determined by the trial court after it issued
the appealed order granting the petition for
cancellation of birth record and change of
surname in the civil registry. [Republic v. Nishina
(2010)]
RULE ON ADVANCE
DISTRIBUTION
Notwithstanding a pending controversy/appeal
in estate settlement proceedings, the court may
permit that the estates parts which are not
affected by the controversy/appeal be
distributed, upon compliance with Rule 90. [Sec.
2, Rule 109]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Annex A
WRIT MATRIX (Comparison of the Writs)
WHC Writ of Habeas Corpus
WD Writ of Habeas Data
RWD Rules on Habeas Data
CA - Court of Appeals
RTC Regional Trial Court
Nature, scope,
function
Limitations
Habeas Corpus
1. All cases of illegal
confinement and detention
which any person is
deprived of his liberty
2. Deprived of rightful
custody of any person is
withheld from the person
entitled [Sec. 1]
Actual violation before writ
issues. Note Villavicencio v.
Lukban on applicability of
the writ in case of
constructive restraint.
May be suspended in cases
of invasion or rebellion
when public safety requires
it [Art. III Sec. 15, 1987
Const.]
By a petition signed and
verified by the party for
whose relief it is intended,
or by some person on his
behalf [Sec. 3]
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Amparo
Involves right to life, liberty
and security violated or
threatened with violation by
an unlawful act or omission
of a public official or
employee or a private
individual or entity
Habeas Data
Involves the right to privacy
in life, liberty or security
violated or threatened by
an unlawful act or omission
of a public official or
employee, or of a private
individual or entity engaged
in the gathering, collecting
It covers extralegal killings or storing of data or
and
enforced information regarding the
disappearances or threats person, family, home and
thereof. [Sec. 1]
correspondence of the
aggrieved party. [Sec. 1]
Shall not diminish, increase Shall not diminish, increase
or modify substantive rights or modify substantive rights
[Sec. 23]
[Sec. 23]
Petition filed by the
aggrieved party or by any
qualified person or entity in
the following order:
(1) Any member of the
immediate family
(2) Any ascendant,
descendant or
collateral relative of
the aggrieved within
the 4th civil degree of
consanguinity or
affinity
(3) Any concerned citizen,
organization,
association or
institution
Filing by the aggrieved
suspends the right of all
others [Sec. 2]
PAGE 251
UP LAW BOC
Where filed
Where
enforceable
Where
returnable
SPECIAL PROCEEDINGS
Habeas Corpus
Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within his judicial district
(Sec. 2)
(4) MTC OR FIRST LEVEL
COURTS in the absence
of RTC judges in a
judicial region [Sec. 35
BP 129]
If SC or CA issued,
anywhere in the Philippines
If granted by the RTC or
judge
thereof,
it
is
enforceable in any part of
the judicial region [Sec 21,
BP 129 which modified the
term judicial district in Sec 2,
Rule 102 into judicial region]
where the judge sits
Amparo
Filed on any day and at any
time:
(1) SB, CA, SC, or any
justice of such courts
(2) RTC of place where
the threat, act, or
omission
was
committed or any
element
occurred
[Sec. 4]
REMEDIAL LAW
Habeas Data
Petition may be filed with
RTC where the petitioner or
respondent resides or that
which has jurisdiction over
the place where the data or
information is gathered,
collected or stored, at the
option of petitioner
If public data files of
government offices, petition
shall be filed with the SC,
CA, or SB [Sec. 3]
If the one that granted the If the one that granted the If issued by:
writ:
writ:
(1) The SC or any of its
(1) Is the SC or CA, or a (1) Is the SC or any of its
justices, before such
member
thereof,
justices,
returnable
Court or any justice
returnable before such
before such court or
thereof, or CA or SB or
court or any member
any justice thereof, or
any of its justices, or
thereof or an RTC
before the SB or CA or
the RTC of the place
(2) An RTC, or a judge
any of their justices, or
where the petitioner
thereof,
returnable
to any RTC of the
or
respondent
before himself [Sec. 2]
place
where
the
resides/has
threat, act or omission
jurisdiction over the
was committed or any
place where the data
of
its
elements
or information is
occurred
gathered, stored or
collected
PAGE 252
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
Docket Fees
Essential
allegations/
Contents of
petition
Amparo
(2) The SB or CA or any of
their
justices,
returnable before such
court or any justice
thereof, or to any RTC
of the place where the
threat,
act,
or
omission
was
committed or any of
its elements occurred
(3) The RTC or any judge
thereof,
returnable
before such court or
judge [Sec. 3]
REMEDIAL LAW
Habeas Data
(2) The CA or SB or any of
its justices, before
such court or any
justice thereof, or the
RTC
(same
with
scenario: SC issued
and then returned in
RTC)
(3) RTC,
returnable
before such court or
judge [Sec. 4]
Petitioner
shall
be None for indigent petitioner
exempted
from
the
payment of the docket and Petition shall be docketed
other lawful fees
and
acted
upon
immediately,
without
Court, justice or judge shall prejudice to subsequent
docket the petition and act submission of proof of
upon it immediately [Sec 4] indigency not later than 15
days from filing [Sec. 5]
Signed and verified and Verified and written petition
shall allege:
shall contain:
(1) The
personal (1) Personal
circumstances of the
circumstances
of
petitioner
petitioner
and
(2) Name or appellation
respondent
and circumstances of (2) Manner the right to
the respondent
privacy is violated or
(3) The right to life,
threatened and its
liberty, and security
effects
violated or threatened (3) Actions and recourses
with violation,
taken by the petitioner
(4) The
investigation
to secure the data or
conducted, if any, plus
information
circumstances of each
(4) The location of the
(5) The
actions
and
files, registers, or
recourses taken by the
databases,
the
petitioner
government
office,
(6) Relief prayed for
and the person in
charge or control
May include a general (5) The reliefs prayed for
prayer for other just and
equitable reliefs [Sec. 5]
Such other relevant reliefs
as are just and equitable
[Sec. 6]
PAGE 253
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
When proper
Service
Habeas Data
A
public
official
or
employee or a private
individual or entity engaged
in gathering, collecting or
storing data [Sec. 1)
Respondent
Amparo
REMEDIAL LAW
PAGE 254
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Habeas Corpus
Amparo
Habeas Data
The officer to whom the Respondent files the return Respondent files the return
writ is directed shall convey [Sec. 9]
[Sec. 10]
the person so imprisoned or
restrained before:
- the judge allowing the
writ, or
- in his absence or
disability, before some
other judge of the same
court
How executed
and returned
When to file
return
Contents of
return
On the day specified on the Within 5 working days after Same with WA [Sec. 10]
writ [Sec. 8]
service of the writ [Sec. 9]
When the person to be
produced is imprisoned or
restrained by an officer, the
person who makes the
return shall state, and in
other cases the person in
whose custody the prisoner
is found shall state in
writing to the court or judge
before whom the writ is
returnable:
(1) Truth of custody/
power
over
the
aggrieved party
(2) If he has custody or
power,
or
under
restraint, the authority
and the cause thereof,
with a copy of the writ,
order, execution or
other process, if any
upon which the party
PAGE 255
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
is held
(3) If the party is in his
custody or power, and
is
not
produced,
particularly the nature
and gravity of the
sickness or infirmity
(4) If he has had the party
in his custody or
power,
and
has
transferred
such
custody or restraint to
another, particularly to
whom, at what time,
for what cause, and by
what authority such
transfer was made.
[Sec. 10]
Formalities of
return
Penalties
For refusing to
issue or serve
For faulty
return
Amparo
(4) If the respondent is a
public
official
or
employee, the return
shall further state
acts:
(a) To verify identity
of aggrieved party
(b) To recover and
preserve evidence
(c) To identify and
collect
witness
statements
(d) To
determine
cause,
manner,
location, and time
of
death
or
disappearance
(e) To identify and
apprehend
persons involved
(f) Bring suspected
offenders before a
competent court
[Sec.9]
the respondent shall file a
verified written return
together with supporting
affidavits [Sec. 9]
REMEDIAL LAW
Habeas Data
(b) The
steps or
actions taken by
the respondent to
ensure
the
security
and
confidentiality of
the
data
or
information
(c) The currency and
accuracy of the
data
or
information held
Other allegations relevant
to the resolution of the
proceeding [Sec.10]
PAGE 256
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
demanding, within 6
hours a true copy of
the warrant or order
of commitment,
shall forfeit to the party
aggrieved the sum of
P1000, recoverable in a
proper action, and may also
be punished for contempt
[Sec. 16]
Is period of
return
extendable?
Is a general
denial allowed?
Defenses not
pleaded
REMEDIAL LAW
Amparo
Habeas Data
to make a return, or who contempt by:
makes a false return, or (1) Making a false return
any
person
who
or
otherwise disobeys or (2) Refusing to make a
resist a lawful process or
return or
order of the court to be (3) Any
person
who
punished for contempt
otherwise disobeys or
Contempt or may be
resists
a
lawful
imprisoned or imposed
process or order of the
a fine [Sec. 16)
court [Sec. 11]
No, not even on highly Yes, by the court, for
meritorious grounds.
justifiable reasons [Sec. 10]
Not allowed [Sec. 9]
PAGE 257
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
In custody of minors: a
motion to dismiss, except on
the ground of lack of
jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]
Prohibited
pleadings
Clear
and
convincing
evidence [Dizon v. Eduardo
(1988)]
Note: no provision in Rule
Burden of
but in Dizon v. Eduardo, the
Proof/Standard
SC
used
clear
and
of Diligence
convincing evidence, a
stricter
standard
than
preponderance of evidence
but less stricter that proof
beyond reasonable doubt.
Yes. Consonant with Sec.
13, stating that if warrant of
Presumption of
commitment is in pursuance
Official duty
with law, serves as prima
facie cause of restraint
Amparo
Motion to dismiss, Motion for
extension of time to file
opposition, affidavit, position
paper and other pleadings,
Dilatory
motion
for
postponement, Motion for
bill
of
particulars,
Counterclaims or crossclaims,
Third-party
complaint, Reply, Motion to
declare
respondent
in
default,
Intervention,
Memorandum, Motion for
reconsideration
of
interlocutory
orders
or
interim relief orders, petition
for certiorari, mandamus, or
prohibition [Sec.11]
Establish
claims
by
substantial evidence
if respondent is a private
individual or
entity,
ordinary diligence
if public official or
employee, extraordinary
diligence [Sec. 17]
REMEDIAL LAW
Habeas Data
Same as WA [Sec. 13, RWD]
Substantial
evidence
required to prove the
allegations in the petition
[Sec. 16]
PAGE 258
UP LAW BOC
CRIMINAL PROCEDURE
PAGE 259
REMEDIAL LAW
UP LAW BOC
CRIMINAL PROCEDURE
General Matters
JURISDICTION OVER SUBJECT
MATTER AND JURISDICTION
OVER PERSON OF THE ACCUSED
DISTINGUISHED
Jurisdiction over subject
matter
May be acquired by
consent of the accused
or by waiver of
objections
JURISDICTION
MATTER
OVER
SUBJECT
REMEDIAL LAW
PAGE 260
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
RTC
Sandiganbayan
(2)
Exclusive
appellate
jurisdiction over all cases
decided by the MTC within
its territorial jurisdiction [Sec.
22, BP 129];
PAGE 261
UP LAW BOC
CRIMINAL PROCEDURE
MTC/MeTC/MCTC
(c)
REMEDIAL LAW
RTC
Sandiganbayan
MILITARY COURTS
Exceptions:
(1) When necessary in the protection of the
constitutional rights of the accused;
(2) When necessary for the orderly administration
of justice or to avoid oppression or multiplicity
of suits;
(3) Where there is a prejudicial question which is
sub judice;
(4) Where acts of the officer are without or in
excess of authority;
(5) When the prosecution in under an invalid law
or stature;
(6) When double jeopardy is apparent;
(7) Where the charges are manifestly false;
(8) Where there is no prima facie case and a
motion to quash has been denied.
PAGE 262
UP LAW BOC
CRIMINAL PROCEDURE
Prosecution of Offenses
REMEDIAL LAW
IN GENERAL
OTHER OFFENSES
EFFECT OF INSTITUTION ON
PRESCRIPTIVE PERIOD
PAGE 263
not
UP LAW BOC
CRIMINAL PROCEDURE
Consent
In order to absolve
the accused from
liability, it must be
extended to both
offenders
In order to absolve
the accused from
liability,
it
is
sufficient even if
granted only to the
offending spouse
CRIMINAL
ENJOINED
REMEDIAL LAW
ACTIONS;
WHEN
CONTROL OF PROSECUTION
PAGE 264
UP LAW BOC
CRIMINAL PROCEDURE
SUFFICIENCY OF COMPLAINT OR
INFORMATION
DEFINITION
Sec. 3, Rule 110. A complaint is a sworn written
statement charging a person with an offense,
subscribed by the offended party, any peace
officer or other public officer charged with the
enforcement of the law violated
REMEDIAL LAW
TEST OF SUFFICIENCY
DESIGNATION OF OFFENSE
The complaint of information shall:
(1) State the designation of the offense given by
the statute;
(2) Aver the acts and omissions constituting the
offense; and
(3) Specify the qualifying and aggravating
circumstances.
If there is no designation of the offense, reference
shall be made to the section or section of the
statute punishing it [Sec. 8, Rule 110].
PAGE 265
UP LAW BOC
CRIMINAL PROCEDURE
WHERE
THE
EXCEPTIONS
LAW
PRESCIBES
REMEDIAL LAW
REMEDY
PAGE 266
UP LAW BOC
CRIMINAL PROCEDURE
Exceptions:
(1) Complex crimes;
(2) Special complex crimes;
(3) Continuous crimes;
(4) Crimes susceptible of being committed in
various modes;
(5) Crimes which another offense is an ingredient
[People v. Camerino (1960)].
AMENDMENT OR SUBSTITUTION
OF COMPLAINT OR
INFORMATION
AMENDMENT
IN
FORM
SUBSTANCE BEFORE PLEA
AND
AMENDMENT AFTER
DURING TRIAL
PLEA
AND
AS TO FORM
Amendment as to form can only be made under
two conditions:
(1) Leave of court must be secured;
(2) It does not cause prejudice to the rights of the
accused [Sec. 14, Rule 110].
The test as to whether or not a defendant is
prejudiced by the amendment of information is:
(1) Whether or not a defense under the
information as it originally stood would be
available after the amendment is made, and
(2) Whether or not any evidence the defendant
might have would be equally applicable to the
information in the one form as in the other.
[People v. Casey (1981)].
REMEDIAL LAW
AS TO SUBSTANCE
Substantial matter in a complaint is the recital of
facts constituting the offense charged and
determinative of the jurisdiction of the court. All
other matters are merely of form [Almeda v.
Villaluz (1975)].
General rule: Amendment as to substance at this
state of the case is proscribed [People v. Zulueta
(1951)].
Exception: Amendment may be allowed if it is
beneficial to the accused [Ricarze v. CA (2007)].
SUBSTITUTION
Substitution a complaint or information may be
substituted if it appears at any time before
judgment that a mistake has been made in
charging the proper offense, the court shall
dismiss the original complaint or information
upon the filing of a new one charging the proper
offense, provided the accused would not be
placed in double jeopardy [Sec. 14, Rule 110].
Subject to the Sec. 19, Rule 119, when it becomes
manifest at any time before judgment that a
mistake has been made in charging the proper
offense and the accused cannot be convicted of
the offense charged or any other offense
necessarily included therein, the accused shall
not be discharged if there appears good cause to
detain him. The court shall commit the accused
to answer the proper offense and dismiss the
original case upon the filing of the proper
information.
Limitations:
(1) No judgment has yet been rendered;
(2) The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein;
(3) The accused would not be placed in double
jeopardy.
PAGE 267
UP LAW BOC
CRIMINAL PROCEDURE
AMENDMENT AND
DISTINGUISHED
Amendment
SUBSTITUTION
Substitution
Formal or substantial
changes
Substantial changes
Can
be
effected
without leave of court
Another PI is entailed
and accused has to
plead anew
The
amended
information refers to
the same offense
charged in the original
information or to an
offense
which
is
included in the original
charge; can invoke
double jeopardy
Involves a different
offense which does not
include those provided
in the original charge;
cannot invoke double
jeopardy [Teehankee v.
Madayag (1992)]
REMEDIAL LAW
INTERVENTION OF OFFENDED
PARTY
General rule: An offended party has the right to
intervene in the prosecution of a crime, where the
civil action for recovery of civil liability is instituted
in the criminal action [Sec. 16, Rule 110].
Note: This is still subject to the control of the
prosecutor [Phil. Rabbit Bus Lines v. People
(2004)].
PAGE 268
UP LAW BOC
CRIMINAL PROCEDURE
Exceptions:
(1) Where, from the nature of the crime and the
law defining and punishing it, no civil liability
arises in favor of a private offended party;
(2) Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has waived
the same or has expressly reserved his right to
institute a separate civil action or he has
already instituted such action;
(3) Offended party has already instituted action
for civil claims.
REMEDIAL LAW
PAGE 269
UP LAW BOC
CRIMINAL PROCEDURE
PREJUDICIAL QUESTION
ELEMENTS
REMEDIAL LAW
EFFECT
WHERE TO FILE
SUSPENSION
PETITION
FOR
PAGE 270
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
WAIVER OF RIGHT
Preliminary Investigation
NATURE OF RIGHT
DEFINITION
RIGHT TO PRELIMINARY
INVESTIGATION
UP LAW BOC
PURPOSES OF
INVESTIGATION
CRIMINAL PROCEDURE
PRELIMINARY
REMEDIAL LAW
COMELEC
The COMELEC may conduct investigation as
regards election offenses [Art. IX-C, Sec. 2(6),
Constitution; Sec. 265, Omnibus Election Code].
OMBUDSMAN
Art. XI, Sec. 12, Constitution. The Ombudsman and
his deputies, as protectors of the people, shall act
promptly on complaints filed in any form or
manner against public officials or employees of
the Government, or any subdivision, agency or
instrumentality thereof, including GOCCs and
shall, in appropriate cases, notify the
complainants of the action taken and the result
thereof
The Ombudsman is authorized to conduct
preliminary investigation and to prosecute all
criminal cases involving public officers and
employees, not only those within the jurisdiction
of the Sandiganbayan, but also those within the
jurisdiction of regular courts as well.
PROSECUTOR
COURT
PAGE 272
UP LAW BOC
PROCEDURE FOR
INVESTIGATION
CRIMINAL PROCEDURE
PRELIMINARY
Clarificatory Hearing
Hearing is conducted only if there are
such facts and issues to be clarified from
a party or a witness.
REMEDIAL LAW
RESOLUTION
OF
THE
INVESTIGATING PROSECUTOR
If he finds probable cause to hold respondent for
trial, he shall prepare a resolution and certify
under oath in the information that:
(1) He or an authorized officer has personally
examined the complainant and his witnesses;
(2) That there is reasonable ground to believe
that a crime has been committed and that the
accused is probably guilty thereof;
(3) That the accused was informed of the
complaint and evidences against him;
(4) That he was given opportunity to submit
controverting evidence
If he finds no probable cause, he shall recommend
the dismissal of the complaint [Sec. 4, Rule 112].
PAGE 273
UP LAW BOC
CRIMINAL PROCEDURE
REVIEW
REMEDIAL LAW
PAGE 274
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
RESTRAINING PRELIMINARY
INVESTIGATION
If the judge is
satisfied that there
is no need to place
the accused under
custody, he may
issue
summons
instead.
INQUEST
DEFINITION
REMEDIES OF ACCUSED IF
THERE WAS NO PRELIMINARY
INVESTIGATION
EFFECT OF DENIAL OF RIGHT
PAGE 275
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Arrest
PROCEDURE
PARLIAMENTARY IMMUNITY
DEFINITION
Arrest is the taking of a person into custody in
order that he may be bound to answer for the
commission of an offense (Sec. 1, Rule 113).
Senators and Members of the House of
Representatives, while Congress is in session and
for offenses punishable by not more than 6 years
imprisonment are immune to arrest [Art. VI, Sec.
11, Constitution].
DIPLOMATIC IMMUNITY
HOW MADE
PAGE 276
UP LAW BOC
CRIMINAL PROCEDURE
IN FLAGRANTE DELICTO
(3)
REMEDIAL LAW
PAGE 277
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
WHEN CURED
(1) When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People
(2009); People v. Alunday (2008)];
(2) By the filing of an information in court and the
subsequent issuance by the judge of a warrant
of arrest [Sanchez v. Demetriou (1993)].
METHOD OF ARREST
BY OFFICER WITH WARRANT
DUTIES OF ARRESTING OFFICER
(1) Execution of warrant [Sec. 4, Rule 113]:
(a) The head of the office to whom the warrant
of arrest was delivered shall cause the
warrant to be executed within 10 days from
its receipt;
(b) The officer to whom it was assigned for
execution shall make a report to the judge
who issued the warrant within 10 days after
expiration of the period to execute.
(c) In case of the officers failure to execute, he
shall state the reasons therefor.
(2) The 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 arrest
[Rule 113, Sec. 7].
(a) This duty does not apply:
(i) When the person to be arrested flees;
(ii) When he forcibly resists before the
officer has opportunity to so inform him;
(iii) When the giving of such information
will imperil the arrest.
(b) The officer need not have the warrant in his
possession at the time of the arrest but
after the arrest, if the person arrested so
requires, the warrant shall be shown to him
as soon as practicable [Sec. 7, Rule 113].
(c) This is not a case of a warrantless arrest but
merely an instance of an arrest effected by
the police authorities without having the
warrant in their possession at that precise
moment [Mallari v. CA (1996)].
PAGE 278
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
REQUISITES
OF
A
WARRANT OF ARREST
VALID
ESSENTIAL REQUISITES
WHEN ISSUED
PAGE 279
UP LAW BOC
CRIMINAL PROCEDURE
DETERMINATION OF PROBABLE
CAUSE FOR ISSUANCE OF
WARRANT OF ARREST
Probable cause, in connection with the issuance
of a warrant of arrest, assumes the existence of
facts and circumstances that would lead a
reasonably discreet and prudent man to believe
that a crime has been committed and that it was
likely committed by the person sought to be
arrested [People v. Tan (2009)].
Probable cause demands more than suspicion
but it requires less than evidence that would
justify conviction [People v. Gabo (2010)].
Judge
Executive
determination of PC
Judicial determination
of PC
Determination of PC to
hold a person for trial
Determination of PC to
issue a warrant of
arrest
Whether or not a
warrant
of
arrest
should be issued
REMEDIAL LAW
Bail
NATURE
DEFINITION
PURPOSE
REQUIREMENT OF CUSTODY
PAGE 280
UP LAW BOC
CRIMINAL PROCEDURE
CAPITAL OFFENSE
Sec. 6, Rule 114. A capital offense is an offense
which under the law existing at the time of
commission and of the application for admission
to bail is punishable by death
The capital nature of the offense is determined by
the penalty prescribed by law and not the one
actually imposed.
Note: RA 9346 (An Act Prohibiting the Imposition
of Death Penalty in the Philippines) enacted on
June 24, 2006 (which repealed RA 8177 and RA
7659) prohibited the imposition of death penalty.
Under Sec. 7, RA 9346, it stated that [c]apital
offense or an offense punishable by reclusion
perpetua or life imprisonment.
EXTRADITION PROCEEDINGS
REMEDIAL LAW
WHEN
A
DISCRETION
MATTER
OF
PAGE 281
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PAGE 282
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
INCREASE OR REDUCTION OF
BAIL
After the accused is admitted to bail and for good
cause, the court may increase or decrease the
amount.
INCREASED BAIL
The accused may be committed to custody if he
does not give bail in the increased amount within
a reasonable period of time [Sec. 20, Rule 114].
REDUCED BAIL
PAGE 283
UP LAW BOC
CRIMINAL PROCEDURE
FORFEITURE AND
CANCELLATION OF BAIL
FORFEITURE OF BAIL
CANCELLATION OF BAIL
APPLICATION BY BONDSMEN
Upon application of the bondsmen with due
notice to the prosecutor, bail may be cancelled
upon:
(1) Surrender of the accused; or
(2) Proof of his death.
AUTOMATIC CANCELLATION
(1) Upon acquittal of the accused
(2) Upon dismissal of the case
(3) Upon execution of judgment of conviction
[Sec. 22, Rule 114].
REMEDIAL LAW
HOLD/ALLOW DEPARTURE
ORDER AND BUREAU OF
IMMIGRATION WATCHLIST
The accused may be prohibited from leaving the
country during the pendency of his case [People v.
Uy Tuising (1935); Manotoc v. CA (1986)]. If the
accused released on bail attempts to depart from
the Philippines without the permission of the
court where his case is pending, he may be rearrested without warrant [Sec. 23, Rule 114].
A hold-departure order may be issued only by the
RTCs in criminal cases within their exclusive
jurisdiction [SC Circ. No. 39-97].
SC Circular 39-97 deals only with criminal cases
pending in the RTC. As to those cases pending in
the MTC as well as those under preliminary
investigation, the DOJ promulgated DOJ Circular
No. 41 governing the issuance of HDO, Watchlist
Orders, and Allow Departure Orders.
PAGE 284
UP LAW BOC
When it
may issue
Validity
Grounds for
lifting or
cancellation
CRIMINAL PROCEDURE
REMEDIAL LAW
Watchlist Order
PAGE 285
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
RIGHT TO BE PRESUMED
INNOCENT UNTIL THE
CONTRARY IS PROVED BEYOND
REASONABLE DOUBT
RIGHT TO BE PRESENT
is
RIGHT TO BE INFORMED OF
THE NATURE AND CAUSE OF
THE ACCUSATION AGAINST HIM
TRIAL IN ABSENTIA
Requisites:
(1) Prior arraignment;
(2) Proper notice of the trial;
(3) Failure to appear is unjustifiable [Parada v.
Veneracion (1997)].
In this case, there is waiver of right to be
present, the right to present evidence and right
to cross-examine witnesses [Gimenez v.
Nazareno (1988)].
PAGE 286
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
RIGHT TO COUNSEL
(1)
RIGHT TO CONFRONTATION
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
RIGHT TO APPEAL
RIGHT TO COMPULSORY
PROCESS
This right may be invoked by the accused to
secure the attendance of witnesses and the
production of evidence in his behalf.
IN GENERAL
PAGE 288
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
CONSEQUENCES OF VIOLATION OF
CUSTODIAL RIGHTS
FAILURE TO INFORM
The arresting public officer or employee, or any
investigating officer, shall suffer a fine of
P6,000 or a penalty of imprisonment of not less
than 8 years but not more than 10 years, or
both.
The investigating officer who has been
previously convicted of a similar offense shall
suffer the penalty of perpetual absolute
disqualification [Sec. 4, 1st par., RA7438].
OBSTRUCTION,
PREVENTION
OR
PROHIBITION OF RIGHT TO VISITS AND
CONFERENCES
Any person guilty thereof shall suffer the
penalty of imprisonment of not less than 4 years
nor more than 6 years and a fine of P4,000.00
[Sec. 4, 2nd par., RA7438].
PAGE 289
UP LAW BOC
CRIMINAL PROCEDURE
PROCEDURE OF ARRAIGNMENT
DEFINITION
DUTY OF THE
ARRAIGNMENT
COURT
REMEDIAL LAW
BEFORE
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
WHEN HELD
General rule: The accused should be arraigned
within 30 days from the date the court acquires
jurisdiction over his person.
Requisites:
(1) The lesser offense is necessarily included in
the offense charged;
(2) The plea must be consistent with the
consent of both the offended party and the
prosecutor, except when the offended party
fails to appear despite due notice;
(3) The penalty for the lesser offense is not more
than two degrees lower than the imposable
penalty for the crime charged.
UP LAW BOC
CRIMINAL PROCEDURE
DURING ARRAIGNMENT
REMEDIAL LAW
SEARCHING INQUIRY
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
DEFINITION
PAGE 293
UP LAW BOC
CRIMINAL PROCEDURE
Motion to Quash
EXISTENCE
QUESTION
OF
REMEDIAL LAW
PREJUDICIAL
PENDENCY
REVIEW
GROUNDS
OF
PETITION
FOR
IN GENERAL
PAGE 294
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) Facts already admitted by the prosecution
[People v. Navarro (1997)];
(2) Undisputed facts apparent from the records
of the PI and not denied by the prosecutor
[Salonga v. Pano (1985)];
(3) Undisputed or undeniable facts that destroy
the prima facie truth accorded to allegations
of the information [People v. de la Rosa
(1988)];
(4) The Rules expressly permits the investigation
of facts alleged [People v. Alagao (1966);
Sec.s 2(f) and (h), 4 and 5].
PAGE 295
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) Those cases in which existing laws prescribe
a single punishment for various offenses;
(2) Complex and compound crimes, except
where one offense was committed to conceal
another;
(3) An offense incidental to the gravamen of the
offense charged;
(4) A specific crime set forth in various counts,
each of which may constitute a distinct
offense.
COMPLAINT OR INFORMATION
DOES NOT CONFORM
SUBSTANTIALLY TO THE
PRESCRIBED FORM
PAGE 296
UP LAW BOC
CRIMINAL PROCEDURE
Demurrer to evidence
Filed
after
prosecution
rested its case
Ground
is
insufficiency
of
evidence to convict
FILING ANOTHER
COMPLAINT/INFORMATION
the
has
Grant
does
not
necessarily follow a
dismissal (Court may
order the filing of a
new complaint or
information)
Grant is deemed an
acquittal and would
preclude the filing of
another information or
appeal
by
the
prosecution
REMEDIAL LAW
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Interlocutory
Final Order
Not
appealable
absent a showing of
GAD. If there is GAD,
then file petition for
certiorari
Immediately
appealable
but
subject to rules on
double jeopardy
Proper
remedy:
appeal after the trial
Proper
remedy:
appeal the order
Consequence:
Arraignment
Consequence:
Amend information
if possible
DOUBLE JEOPARDY
The right against double jeopardy prohibits the
prosecution for a crime of which he has been
previously convicted or acquitted [Caes v. IAC
(1989)].
PAGE 298
Exceptions:
(1) The graver offense developed due to
supervening facts arising from the same act
or omission constituting the former charge;
(2) The facts constituting the graver charge
became known or were discovered only after
a plea was entered in the former complaint
or information;
(3) The plea of guilty to the lesser offense was
made without the consent of the prosecutor
and of the offended party except when
offended party failed to appear during such
arraignment.
UP LAW BOC
CRIMINAL PROCEDURE
SAME ACT
An offense penalized by ordinance is, by
definition, different from an offense penalized
under a statute. Hence, they would never
constitute double jeopardy.
REMEDIAL LAW
REQUISITES TO SUCCESSFULLY
INVOKE DOUBLE JEOPARDY
Dismissal
Acquittal
Double
jeopardy
always attaches
PROVISIONAL DISMISSAL
DEFINITION
PAGE 299
UP LAW BOC
CRIMINAL PROCEDURE
GROUNDS
Sec. 8 does not state the grounds for provisional
dismissal. However, according to the case of Los
Baos v. Pedro (2007), the delimitation of the
grounds available in MTQ suggests that where
the grounds cited are those listed under Sec. 3,
then the appropriate remedy is to file a motion
to quash, and not any other remedy.
Conversely, where a ground does not appear
under Sec. 3, then a motion to quash is not a
proper remedy. A motion for provisional
dismissal may then apply if the conditions
required by Sec. 8 obtain.
REMEDIAL LAW
WHEN
DISMISSAL
BECOMES
PERMANENT (TIME BAR RULE)
Pre-Trial
APPLICATION OF
AFFIDAVIT RULE
PAGE 300
JUDICIAL
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
STIPULATION OF FACTS
MATTERS TO BE CONSIDERED
DURING PRE-TRIAL
Pre-trial is mandatory in all criminal cases. Its
main objective is to achieve an expeditious
resolution of the case.
COVERAGE
PERIOD
PLEA BARGAINING
THINGS CONSIDERED
PAGE 301
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
NON-APPEARANCE
PRE-TRIAL
DURING
PRE-TRIAL AGREEMENT
FORM
PRE-TRIAL ORDER
ISSUANCE
EFFECT
PAGE 302
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
CONTENT
(1) Actions taken;
(2) Facts stipulated;
(3) Evidence marked;
(4) Admissions made;
(5) The number of witnesses to be presented;
and
(6) The schedule of trial [Sec. 4, Rule 118].
Note: Nos. 4 to 6 are added by AM 03-1-09-SC
to the requirements under Sec. 4, Rule 118.
Trial
EFFECT
PAGE 303
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
CONDITIONAL EXAMINATION
BURDEN OF PROOF
DISCHARGE OF A CO-ACCUSED
TRIAL IN ABSENTIA
Requisites:
(1) Accused has been arraigned;
(2) He was duly notified of trial;
PAGE 304
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
REQUISITES
DEMURRER TO EVIDENCE
DEFINITION
EFFECTS OF DISCHARGE OF
ACCUSED AS STATE WITNESS
PAGE 305
UP LAW BOC
CRIMINAL PROCEDURE
HOW INITIATED
MOTION FOR
DEMURRER
LEAVE
TO
REMEDIAL LAW
FILE
PAGE 306
adduce
in
his
Purpose
is
to
determine whether
or not the demurrer
was filed merely to
stall the proceedings
Implied leave of
court is no longer
sufficient
and
prevents
accused
from
presenting
evidence
(e.g.
accused files motion
with reservation to
present evidence in
case
motion
is
denied)
UP LAW BOC
CRIMINAL PROCEDURE
Judgment
REMEDIAL LAW
REQUISITES OF A JUDGMENT
FORM
CONTENTS OF JUDGEMENT
IN CASE OF CONVICTION
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
IN CASE OF ACQUITTAL
Acquittal
Dismissal
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PROMULGATION
OF
JUDGEMENT; INSTANCES OF
PROMULGATION IN ABSENTIA
PROMULGATION
PAGE 309
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PROMULGATION IN CERTAIN
CIRCUMSTANCES
PAGE 310
UP LAW BOC
CRIMINAL PROCEDURE
New Trial or
Consideration
REMEDIAL LAW
ERRORS OF LAW OR
IRREGULARITIES
GROUNDS FOR
RECONSIDERATION
IN ALL CASES
PAGE 311
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
OTHER EFFECTS
Other specific effects (see table) also result
when granted upon different grounds [Sec. 6,
Rule 121].
Ground
Effect
IN CASE OF
DISCRETION
GRAVE
ABUSE
OF
PAGE 312
UP LAW BOC
CRIMINAL PROCEDURE
Appeal
REMEDIAL LAW
EFFECT OF AN APPEAL
WHERE TO APPEAL
For cases decided by
Appeal to
MTC/MeTC/MCTC
RTC
RTC or MTC/MeTC/
MCTC (if it is government
duty-related, i.e., filed
under EO 1, 2, 4 and 14-A)
Sandiganbayan
CA
RTC
(1) If it involves questions
of law only
(2)
If
it
involves
constitutionality
or
validity
of
any
treaty/law/ordinance/
EO/ regulation or the
jurisdiction of the
inferior court
(3) In criminal cases
involving offenses for
which the penalty
imposed is death or
life imprisonment
(4) Other offenses, which,
although
not
so
punished, arose out of
the same occurrence
or which may have
been committed by the
accused on the same
occasion,
as
that
giving rise to the more
serious offense
SC
CA or Sandiganbayan
SC
PAGE 313
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) Where a particular provision applies only to
either of said courts;
(2) Criminal cases governed by the Revised Rules
on Summary Procedure [Sec. 1, Rule 123].
OFFENSES
FALLING
UNDER
THE
JURISDICTION OF THE MTC/MCTC
Notwithstanding the uniform procedure rule, if
the offense falls under the jurisdiction of the
MTC/MCTC, complaint/information may be
filed directly with said courts or with the City
Prosecutors Office [Salcedo v. Nobles-Bans
(1985)].
OFFENSES
FALLING
UNDER
THE
JURISDICTION OF THE METC
In Metro Manila and other chartered cities,
criminal cases shall be commenced only by
information; thus, the complaint may be filed
only with the Office of the City Prosecutor
FORM OF BRIEFS
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
CONTENT OF BRIEFS
The briefs in criminal cases shall have the same
contents as provided in Secs. 13 to 14, Rule 44
[Sec. 7, Rule 124].
PAGE 314
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PAGE 315
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
QUORUM IN THE CA
(1) Three CA Justices constitute a quorum for the
sessions of a division;
(2) The unanimous vote of the three Justices of a
division is necessary for the pronouncement
of a judgment or final resolution;
(3) Decision is reached through a consultation
before the writing of the opinion by a
member of the division;
(4) If there is lack of unanimity, the Presiding
Justice shall direct the CA raffle committee
to designate two additional Justices to sit
temporarily with them. They shall then form
a special division of five members;
(5) The concurrence of a majority of that special
division is necessary for the pronouncement
of a judgment or final resolution;
(6) Designation of the additional Justices shall
be made strictly by raffle and rotation among
all other CA Justices [Sec. 11, BP 129].
UP LAW BOC
CRIMINAL PROCEDURE
RECONSIDERATION OF CA JUDGMENT
MFR may be filed within 15 days from notice of
the CA judgment or final order, with copies
served on the adverse party. The mittimus shall
be stayed during the MFRs pendency.
It is available when:
(1) The RTC judgment upon the accused
imposes death penalty [Sec. 10, Rule 122];
(2) The RTC decision is appealed to CA and the
latter is of the opinion that the penalty
imposed should be death or life
imprisonment. CA judgment is imposed but
no entry of judgment is made; instead, the
case is certified and the entire record is
elevated to the SC for review [Sec. 13, Rule
124].
Ordinary appeal
It is available when:
(1) The penalty imposed by the RTC is life
imprisonment, decision is appealable directly
to the SC by filing a notice of appeal with the
RTC [Sec. 3, Rule 122];
(2) An accused was charged with two or more
offenses committed on the same occasion or
arising out of the same occurrence, and in
one of those 2 cases, he was sentenced to life
imprisonment or death penalty, the appeal
with respect to the others, though punished
with a lesser penalty, is to the SC [Sec. 3, Rule
122];
(3) The penalty of reclusion perpetua or death is
imposed on some of the defendants and a
lesser penalty on the other co-defendants,
on account of their varying degree of
participation in the commission of the
offense or due to the presence of modifying
circumstances, in which case the decision on
the non-life convicts is directly appealable to
the SC [People v. Carino (2002)].
PROCEDURE
COURT
IN
THE
REMEDIAL LAW
SUPREME
UNIFORM PROCEDURE
General rule: The procedure in the SC in original
and in appealed cases shall be the same as in
the CA [Sec. 1, Rule 125].
Exception: The procedure changes when the
Constitution or law so provides.
WHAT THE SC MAY DO ON REVIEW
In a criminal case, an appeal to the SC throws
open the whole case for review and it becomes
its duty to correct such errors as may be found
in the judgment appealed from, whether or
not they were assigned as errors [People v.
Olfindo (1924)].
It may examine the judgment as to the
qualification of the crime and the degree of
the penalty imposed [Macali v. Revilla (1926)].
It may also assess and award civil indemnity
[Quemel v. CA (1946)].
PAGE 317
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Exceptions:
(1) When the conclusion is a finding founded
entirely
on
speculations/surmises/conjectures;
(2) When the inference made is manifestly
mistaken/absurd/impossible;
(3) When there is GAD;
(4) When the judgment is based on a
misapprehension of facts;
(5) When the findings of facts are conflicting;
(6) When the CA, in making its findings, went
beyond the issues of the case and the same
are contrary to the admissions of both
appellant and appellee [Napolis v. CA (1972)].
UP LAW BOC
CRIMINAL PROCEDURE
COMPOSITION OF THE SC
(1) SC is composed of one Chief Justice and 14
Associate Justices.
(2) SC may sit en banc or (in its discretion) in
divisions of 3, 5 or 7 members.
(3) No doctrine or principle of law laid down by
the SC in a decision rendered en banc or in
division may be modified/reversed except by
the court sitting en banc [Art. VIII, Sec. 4,
Constitution].
REMEDIAL LAW
appeal
from
DEFINITION
PAGE 319
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
NATURE
A search warrant is in the nature of a criminal
process akin to a writ of discovery, employed by
the state to procure relevant evidence of a crime
[Malaloan v. CA (1994)].
It is not available to individuals in the course of
civil proceedings.
Exceptions:
searches.
CONSTITUTIONAL SAFEGUARD
There
are
valid
warrantless
ARREST
AND
SEARCH
WARRANTS DISTINGUISHED
Search warrant
Warrant of arrest
Nature
Order in writing in
the name of the RP
signed by the judge
and directed to the
peace officer to
search
personal
property described
therein and to bring
it to court [Sec. 1,
Rule 126]
The
examination
must be under oath
or affirmation of the
complainant and his
witnesses.
Examination must
be under oath.
PAGE 320
UP LAW BOC
CRIMINAL PROCEDURE
Search warrant
Warrant of arrest
Form
It must particularly
describe the place to
be searched and the
things to be seized.
It must particularly
describe the person
to be arrested.
When executed
Generally served in
the day time, unless
there be a direction
in the warrant that it
may be served at any
time of the day or
night [Sec. 9, Rule
126]
SUBSTANCE OF APPLICATION
Period of validity
Valid for 10 days
[Sec. 9, Rule 126]
REMEDIAL LAW
PAGE 321
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
POST SERVICE
RECEIPT OF PROPERTY SEIZED
Receipt is given differently depending on the
presence of the lawful occupant. Thus:
(1) If the lawful occupant is present, the officer
seizing the property under the search
warrant must give a detailed receipt for the
same to the lawful occupant of the premises
in whose presence the search and seizure
were made.
(2) If the lawful occupant is not present, the
officer seizing the property under the search
warrant must, in the presence of at least two
witnesses of sufficient age and discretion
residing in the same locality, leave a receipt
in the place in which he found the seized
property [Sec. 11, Rule 126].
WHEN
UNANNOUNCED
INTRUSION
PERMISSIBLE
(1) Person in the premises refuses to open it
upon demand;
(2) Person in the premises already knew of the
identity and authority of the officers;
(3) When the officers have an honest belief that
there is an imminent danger to life and limb;
(4) When those in the premises, aware of the
presence of someone outside, are then
engaged in activities which justifies the
officers to believe that an escape or the
destruction of evidence is imminent.
UP LAW BOC
CRIMINAL PROCEDURE
PROBABLE
CAUSE
JUSTIFYING
WARRANTLESS
ARREST
AND
WARRANTLESS SEARCH
PERSONAL EXAMINATION BY
JUDGE OF THE APPLICANT AND
WITNESSES
PROBABLE CAUSE
WARRANTS
ISSUED
PROBABLE CAUSE
REMEDIAL LAW
UPON
SEARCHING
ANSWERS
QUESTIONS
AND
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PARTICULARITY OF THINGS TO BE
SEIZED
PARTICULARITY OF PLACE TO
BE SEARCHED AND THINGS TO
BE SEIZED
Warrant issued must particularly describe the
place to be searched and the things to be
seized.
Exceptions:
(1) Where, by the nature of the goods to be
seized, their description must be rather
general, it is not required that a technical
description be given, for this would mean
that no search warrant could issue [People v.
Rubio (1932)].
(2) The general description of the documents
listed in the search warrant does not render
the it void if it is severable, and those items
not particularly described may be cut off
without destroying the whole [Uy v. BIR
(2001)].
PARTICULARITY OF PLACE TO BE
SEARCHED
PAGE 324
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
PERSONAL PROPERTY TO BE
SEIZED
CONSENTED SEARCH
EXCEPTIONS
TO
SEARCH
WARRANT REQUIREMENT
UP LAW BOC
CRIMINAL PROCEDURE
CHECKPOINTS;
AIRPORTS
BODYCHECKS
REMEDIAL LAW
IN
Requisites:
(1) A prior valid intrusion i.e., based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
PAGE 326
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
BUY-BUST OPERATION
This is a form of entrapment legally employed
by peace officers as an effective way of
apprehending drug dealers in committing an
offense. There is no need for a search warrant
(or warrant of arrest) because the accused is
caught in flagrante delicto.
PRIVATE SEARCHES
In one case, the evidence was obtained by a
private person acting in a private capacity, while
performing company standard operating
procedures and without state participation and
intervention. It was held that the constitutional
rights cannot be invoked when there is no
government interference [People v. Marti (1999)].
REMEDIES
OTHER EXCEPTIONS
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Where to file
General rule: The motion must be filed before
the sala of the judge who issued it. Only the
court that issued the SW may order revocation
of search warrant or release of things seized
[Pagkalinawan v. Gomez (1967)].
PAGE 328
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
Provisional Remedies
NATURE
WAIVER OF IMMUNITY
AGAINST UNREASONABLE
SEARCH AND SEIZURE
The
constitutional
immunity
against
unreasonable searches and seizure is a personal
right that may be waived expressly/impliedly
only by the person whose right is being invaded
or one who is expressly authorized to do so in
his behalf [Pasion v. Locsin (1938)].
Requisites:
(1) It must appear that the right exists;
(2) That the person involved had knowledge,
(actual or constructive) of the existence of
such right;
(3) That the person had an actual intention to
relinquish the right.
KINDS OF PROVISIONAL
REMEDIES
IN GENERAL
is
PAGE 329
UP LAW BOC
CRIMINAL PROCEDURE
PRELIMINARY ATTACHMENT
WHEN PROPER
When the civil action is properly instituted in the
criminal action, the offended party may have the
property of the accused attached as security for
the satisfaction of any judgment that may be
recovered from the accused in the following
cases:
(1) When the accused is about to abscond from
the Philippines
(2) When the criminal action is based on a claim
for money or property embezzled or
fraudulently misapplied or converted to the
use of the accused who is a public/corporate
officer, attorney, factor, broker, agent or
clerk, in the course of his employment as
such, or by any other person in a fiduciary
capacity, or for a willful violation of duty
(3) When the accused has concealed, removed
or disposed of his property, or is about to do
so
(4) When the accused resides outside the
Philippines [Sec. 2, Rule 127].
ISSUANCE AND IMPLEMENTATION
The writ may be issued ex parte before
acquisition of jurisdiction over the accused.
However, it may be enforced only after
acquisition of jurisdiction over the person of the
accused [Gonzalez v. State Properties (2001)].
No notice to the adverse party, or hearing on the
application is required before a writ of
preliminary
PAGE 330
REMEDIAL LAW
UP LAW BOC
EVIDENCE
PAGE 331
REMEDIAL LAW
UP LAW BOC
EVIDENCE
General Principles
REMEDIAL LAW
CONCEPT OF EVIDENCE
The means, sanctioned by these rules, of
ascertaining in a judicial proceeding, the truth
respecting a matter of fact [Sec. 1, Rule 128]
In Civil Cases
In Criminal Cases
Preponderance
of Proof
beyond
evidence [Sec. 1, Rule reasonable doubt [Sec.
133]
2, Rule 133]
Offer of compromise
NOT an admission of
any liability [Sec. 27,
Rule 130]
Presumption
of Presumption
of
innocence does NOT innocence
a
apply
constitutional
guarantee
on
the
accused [sec. 14, Art. III]
PAGE 332
UP LAW BOC
EVIDENCE
Evidence
Factum Probandum
OTHER CLASSIFICATIONS
CUMULATIVE AND CORROBORATIVE
EVIDENCE
Cumulative Evidence
REMEDIAL LAW
fact
be
3 CLASSES OF EVIDENCE
ACCORDING TO FORM
(1) Object- those addressed to the senses of the
court. [Sec. 1, Rule 130]
(2) Documentary- consists of writings or any
material containing letters, words, numbers,
figures, symbols or other modes of written
expressions offered as proof of their contents
[Sec. 2, Rule 130]
(3) Testimonial- evidence elicited from the
mouth of a witness [Riano , citing Blacks
Law Dictionary]
Corroborative Evidence
PRIMA FACIE
EVIDENCE
AND
CONCLUSIVE
Prima Facie
Conclusive
Standing
alone,
unexplained
or
uncontradicted,
is
sufficient to maintain
the
proposition
affirmed
Class of evidence
which the law does not
allow
to
be
contradicted
PRIMARY
EVIDENCE
AND
Primary
Best Evidence
That which the law
regards as affording
the greatest certainty
of the fact in question
SECONDARY
Secondary
Substitutionary
Evidence
Inferior to primary;
permitted only when
the best evidence is
not available
ADMISSIBILITY OF EVIDENCE
REQUISITES FOR ADMISSIBILITY OF
EVIDENCE
PAGE 333
UP LAW BOC
EVIDENCE
RELEVANCE OF EVIDENCE
COLLATERAL MATTERS
AND
RELEVANCY
Evidence is relevant when it has such a
relation to the fact in issue as to induce belief
in its existence or non-existence. [Sec. 4, Rule
128]
Determinable by the rules of logic and human
experience.
COLLATERAL MATTERS
Matters other than the fact in issue which are
offered as a basis for inference as to the
existence or non-existence of the facts in issue
[Regalado]
General Rule: Evidence on collateral matters
is NOT allowed. [Sec. 4, Rule 128]
Exception: When it tends in any reasonable
degree to establish the probability or
improbability of the fact in issue. [Sec. 4, Rule
128]
PAGE 334
REMEDIAL LAW
UP LAW BOC
EVIDENCE
REMEDIAL LAW
DIRECT V. CIRCUMSTANTIAL
Direct Evidence
Circumstantial
DOCTRINES OF ADMISSIBILITY
MULTIPLE ADMISSIBILITY
Where the evidence is relevant and competent
for two or more purposes, such evidence shall
be admitted for any or all the purposes for
which it is offered, provided it satisfies all the
requisites of law for its admissibility therefor.
[Regalado]
CONDITIONAL ADMISSIBILITY
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received, on condition that the other facts will
be proved thereafter; otherwise, the evidence
already given shall be stricken out.
This was applied in the case of People v. Yatco
[G.R. No. L-9181, November 28, 1955] subject
to the qualification that there should be no
bad faith on the part of the proponent. The
qualification appears to avoid unfair surprises.
[Regalado]
CURATIVE ADMISSIBILITY
Where the court has admitted incompetent
evidence adduced by the adverse party, a
party has a right to introduce the same kind of
evidence in his/her behalf. [Regalado]
What determines the rule of curative
admissibility:
(1) Whether the incompetent evidence was
seasonably objected to - Lack of objection to
incompetent evidence constitutes waiver on
the part of the party against whom it was
introduced but the opposing party is not
deprived of his right to similar rebutting
evidence; and
(2) Whether the admission of such evidence will
cause a plain and unfair prejudice to the party
against whom it was admitted [Regalado]
BURDEN OF PROOF
BURDEN OF EVIDENCE
AND
PAGE 335
UP LAW BOC
EVIDENCE
Burden of Evidence
Does
not
shift Shifts from party to
throughout the trial
party depending upon
the exigencies of the
case in the course of the
trial
Generally determined by Generally determined by
the pleadings filed by the developments at the
the party
trial, or by the provisions
of substantive law or
procedural rules which
may relieve the party
from
presenting
evidence on the fact
alleged (presumptions,
judicial
notice
and
admissions)
REMEDIAL LAW
EQUIPOISE RULE OR
EQUIPONDERANCE DOCTRINE
The doctrine refers to the situation where the
PRESUMPTIONS
Conclusive
Disputable
Satisfactory
if
uncontradicted,
but
may be contradicted
and overcome by other
evidence.[Sec. 3, Rule
131]
CONCLUSIVE PRESUMPTIONS
UNDER THE RULES [SEC. 2, RULE
131]:
PAGE 336
UP LAW BOC
EVIDENCE
DISPUTABLE PRESUMPTIONS
UNDER THE RULES [SEC. 3, RULE
131]
PAGE 337
(21)
(22)
(23)
(24)
(25)
(26)
(27)
REMEDIAL LAW
UP LAW BOC
EVIDENCE
Presumption
Considered to have
been conceived during
the former marriage,
provided it be born
within 300 days after
the termination of the
former marriage
After
180
days
following
the
celebration of the
subsequent marriage
Considered to have
been conceived during
the
subsequent
marriage, even though
it be born within the
300 days after the
termination of the
former marriage.
PAGE 338
REMEDIAL LAW
Person presumed to
have survived
The older
The younger
UP LAW BOC
EVIDENCE
NO PRESUMPTION OF LEGITIMACY
OR ILLEGITIMACY
LIBERAL CONSTRUCTION OF
THE RULES OF EVIDENCE
Like all other provisions under the ROC, rules
of evidence must be liberally construed. [Sec.
6, Rule 1]
Rules on Electronic Evidence shall likewise be
construed liberally. [Sec. 2, Rule 2, Rules on
Electronic Evidence]
QUANTUM
OF
EVIDENCE
(WEIGHT AND SUFFICIENCY OF
EVIDENCE)
PROOF
DOUBT
BEYOND
REASONABLE
PAGE 339
REMEDIAL LAW
PREPONDERANCE OF EVIDENCE
Applicable quantum of evidence in civil cases
[Sec. 1, Rule 133]
Means that the evidence adduced by one side
is, as a whole, superior to or has greater
weight than that of the other. [Habagat Grill v.
DMC-Urban Property Developer, Inc., G.R. No.
155110, March 31, 2005; Bank of the Philippine
Islands v. Reyes, G.R. No. 157177, February 11,
2008]
In determining preponderance of evidence,
the court may consider:
(1) All the facts and circumstances of the case;
(2) The witnesses manner of testifying, their
intelligence, their means and opportunity
of knowing the facts to which they testify,
the nature of the facts to which they testify,
the probability or improbability of their
testimony, their interest or want of interest,
and also their personal credibility so far as
the same may legitimately appear upon
the trial;
(3) Number
of
witnesses
(although
preponderance is not necessarily with the
number of witnesses). [Sec. 1, Rule 133]
SUBSTANTIAL EVIDENCE
Degree of evidence required in cases filed
before administrative or quasi-judicial bodies.
[Sec. 5, Rule 133]
Substantial evidence is that amount of
relevant evidence which a reasonable mind
might accept as adequate to justify a
conclusion [Sec. 5, Rule 133]
UP LAW BOC
Judicial
Notice
Judicial Admissions
EVIDENCE
And
REMEDIAL LAW
DISCRETIONARY
(1) Matters of public knowledge;
(2) Matters
capable
of
unquestionable
demonstration; and
(3) Matters ought to be known to judges
because of their judicial functions. [Sec. 2,
Rule 129]
REQUISITES:
JUDICIAL NOTICE
PAGE 340
UP LAW BOC
EVIDENCE
PAGE 341
REMEDIAL LAW
JUDICIAL ADMISSIONS
To be a judicial admission, the same:
(1) Must be made by a party to the case;
(2) Must be made in the course of the
proceedings in the same case; and
Note: As regards judicial admissions made
in the trial of another case, the same would
be considered an extrajudicial admission
for the purpose of the other proceeding
where such admission is offered.[Riano]
(3) May be verbal or written. [Sec. 4, Rule 129]
Judicial admissions may be
Made in:
Pleadings filed by the parties (including
admissions made in pleadings which are
withdrawn/superseded by an amended
pleading [Regalado])
Stipulations of facts by the parties in a pretrial conference [People v. Hernandez, G.R.
No. 108028, July 30, 1996]
The course of the trial either by verbal or
written manifestations/stipulations
Other stages of judicial proceedings
Obtained through:
Depositions
Written interrogatories
Request for admissions [Regalado; See also
Civil Procedure Rules]
UP LAW BOC
EVIDENCE
PAGE 342
REMEDIAL LAW
ATTESTED COPY
UP LAW BOC
EVIDENCE
LAW OF NATIONS
The Philippines adopts the generally accepted
principles of international law as part of the
law of the land. [Sec. 2, Art. II, 1987
Constitution]
Being part of the law of the land, they are
therefore in the nature of local laws, and
hence, subject to mandatory judicial notice
under sec. 1 of Rule 129.
MUNICIPAL ORDINANCES
Municipal trial courts are required to take
judicial notice of the ordinances of the
municipality or city wherein they sit. [US v.
Blanco (37 Phil 126 November 9, 1917)]
PAGE 343
REMEDIAL LAW
REQUISITES FOR
ADMISSIBILITY
BASIC REQUISITES FOR
ADMISSIBILITY (RIANO)
UP LAW BOC
EVIDENCE
RELEVANT
REMEDIAL LAW
Non-Unique Objects
Objects with no identifying marks and cannot be
marked, e.g., narcotic substances
DEMONSTRATIVE EVIDENCE
COMPETENT
EVIDENCE BE AUTHENTICATED
To authenticate the object is to show that the
object is the very thing that is either the subject
matter of the lawsuit or the very one involved to
prove an issue in the case.
AUTHENTICATION
BE
MADE
BY
COMPETENT WITNESS
To authenticate the object, the witness must
have the capacity to identify the object as the
very thing involved in the litigation.
A witness can testify to those facts which
he/she knows of his/her personal knowledge;
that is, which are derived from his/her own
perception. [Sec. 36, Rule 130]
CATEGORIES OF OBJECT
EVIDENCE
THE THING ITSELF
Unique Objects
Objects that have readily identifiable marks,
e.g., a caliber 45 pistol by virtue of its serial
number
PAGE 344
EPHEMERAL ELECTRONIC
COMMUNICATIONS
HOW PROVEN
UP LAW BOC
EVIDENCE
CHAIN OF CUSTODY IN
RELATION TO SECTION 21 OF
THE COMPREHENSIVE
DANGEROUS DRUGS ACT OF
2002
MEANING OF CHAIN OF CUSTODY
PAGE 345
REMEDIAL LAW
UP LAW BOC
EVIDENCE
HOW OBTAINED
(1) Without need of prior court order
(2) Available to the prosecution or any person
convicted by final and executory judgment
REQUISITES
(1) A biological sample exists
(2) Such sample is relevant to the case
(3) The testing would probably result in the
reversal or modification of the judgment of
conviction. [Sec. 6]
PAGE 346
REMEDIAL LAW
FACTORS IN ASSESSING
PROBATIVE
VALUE
OF
EVIDENCE
THE
DNA
VALLEJO STANDARD
UP LAW BOC
EVIDENCE
Documentary Evidence
MEANING OF DOCUMENTARY
EVIDENCE
Consist of writings or any material containing
letters, words, numbers, figures, symbols or
other modes of written expressions offered as
proof of their contents [Rule 130, sec. 2]
To be deemed documentary evidence, such
writings or materials must be offered as proof
of their contents. If offered for some other
purpose, they constitute OBJECT EVIDENCE.
REMEDIAL LAW
ORIGINAL DOCUMENT
(1) Copy
(2) Recital of contents in some authentic
document
(3) Testimony of witnesses [Rule 130, Sec. 5]
REQUISITES FOR
ADMISSIBILITY
(1) Relevant
(2) Competent
(a) Document be Authenticated
(b) Authenticated by Competent Witness
(3) Formally Offered in Evidence [Riano]
SEC. 3]
PAGE 347
UP LAW BOC
EVIDENCE
RULES ON ELECTRONIC
EVIDENCE [A.M. NO. 01-7-01-
REMEDIAL LAW
ELECTRONIC DOCUMENT
(1) Information or the representation of
information, data, figures, symbols or other
modes of written expression,
(2) Described or however represented, by which
a right is established or an obligation
extinguished, or by which a fact may be
proved and affirmed,
(3) Which is received, recorded, transmitted,
stored, processed, retrieved or produced
electronically.
(4) It includes digitally signed documents and
any print-out or output, readable by sight or
other means, which accurately reflects the
electronic data message or electronic
document.
For purposes of these Rules, the term
electronic document may be used
interchangeably
with
electronic
data
message. [Sec. 1(h), REE]
FACTORS IN ASSESSING
EVIDENTIARY WEIGHT OF
ELECTRONIC EVIDENCE [RULE 7,
SC]
SEC. 1]
APPLICABILITY
PAGE 348
UP LAW BOC
EVIDENCE
(a) Whether
the
information
and
communication system or other similar
device was operated in a manner that did
not affect the integrity of the electronic
document, and there are no other
reasonable grounds to doubt the integrity
of the information and communication
system;
(b) Whether the electronic document was
recorded or stored by a party to the
proceedings with interest adverse to that
of the party using it; or
(c) Whether the electronic document was
recorded or stored in the usual and
ordinary course of business by a person
who is not a party to the proceedings and
who did not act under the control of the
party using it [Rule 7, Sec. 2]
(4) The familiarity of the witness or the person
who made the entry with the communication
and information system;
(5) The nature and quality of the information
which went into the communication and
information system upon which the
electronic data message or electronic
document was based; or
(6) Other factors which the court may consider
as affecting the accuracy or integrity of the
electronic document or electronic data
message.
Text messages have been classified as
ephemeral electronic communication under
Section 1(k), Rule 2 of the Rules on Electronic
Evidence, and shall be proven by the
testimony of a person who was a party to the
same or has personal knowledge thereof.
[Vidallon-Magtolis v. Salud (A.M. No. CA-0520-P September 9, 2005)]
METHOD OF PROOF
PAGE 349
REMEDIAL LAW
AUTHENTICATION OF ELECTRONIC
DOCUMENTS AND ELECTRONIC
SIGNATURES (R5, SS1-3; R11, SS1-2,
REE)
OF ELECTRONIC DOCUMENTS
Burden of Proving Authenticity: The person
seeking to introduce the electronic document
in any legal proceeding has the burden of
proving its authenticity. [Rule 5, sec. 1]
Before any private electronic document can
be offered as authentic is received in evidence,
its authenticity must be proved by any of the
following manner:
(1) By evidence that it had been digitally
signed by the person purported to have
signed the same;
(2) By evidence that other appropriate security
procedures or devices as may be
authorized by the Supreme Court or by law
for authentication of electronic documents
were applied to the document; or
(3) By other evidence showing its integrity and
reliability to the satisfaction of the judge.
[Rule 5, sec. 2]
OF ELECTRONIC SIGNATURES [RULE 6,
SEC. 2]
UP LAW BOC
EVIDENCE
PAGE 350
REMEDIAL LAW
UP LAW BOC
EVIDENCE
PAGE 351
REMEDIAL LAW
Contemplates
the Presupposes that the
situation wherein the original document is
original writing is not available in court
available and/or there
is a dispute as to
whether said writing is
the original
Prohibits
the Prohibits the varying of
introduction
of the terms of a written
substitutionary
agreement
evidence in lieu of the
original
document
regardless of WON it
varies the contents of
the original
Applies to all kinds of Applies
only
to
documents
documents contractual
in nature (Exception:
wills)
Can be invoked by any
party to an action
regardless of WON
such party participated
in the writing involved
UP LAW BOC
EVIDENCE
Public Documents
When
offered
as
authentic,
due
execution
and
authenticity must be
proved
Admissible
without
further proof of its due
execution
and
authenticity
PAGE 352
REMEDIAL LAW
(2) Notarial
document
acknowledged,
proved/certified [Rule 132, Sec. 30]
(3) When authenticity and due execution has
been admitted as in the case of actionable
documents under Rule 8, Sec. 8
(4) That which it is claimed to be: Authentication
not necessary [Rule 132, sec. 20]
How to prove genuineness of handwriting
(1) By any witness who believes it to be the
handwriting of such person because:
(a) he has seen the person write;
(b) he has seen writing purporting to be his
upon which the witness has acted or been
charged, and has thus acquired
knowledge of the handwriting of such
person [Rule 132, sec. 22]
(2) A comparison by the witness or the court of
the questioned handwriting, and admitted
genuine specimens thereof or proved to be
genuine to the satisfaction of the judge [Rule
132, sec. 22]
(3) Expert evidence [Rule 130, sec. 49]
PUBLIC DOCUMENTS
Kinds of public documents
(1) Written official acts or records of the official
acts of the sovereign authority, official bodies
and tribunals, and public officers, whether of
the Philippines or of a foreign country
(2) Public records, kept in the Philippines, of
private documents required by law to be
entered therein
(3) Notarial documents (except last wills and
testaments) [Rule 132, Sec. 19]
Proof of public documents
Records of Official Acts [Rule 132, sec. 24]
(1) By an official publication thereof; or
(2) By an attested copy of the document
Note: Documents without documentary stamp
affixed thereto, unless specifically exempted by
law, may not be admitted or used in evidence in
any court until the requisite stamp shall have
been affixed. [Sec. 201, NIRC] Also, there is a
presumption that the requisite stamps have
been affixed in the original copy when only the
carbon copies of the same is available. [Mahilum
v CA (G.R. No. L-17666 June 30, 1966)]
UP LAW BOC
EVIDENCE
PAGE 353
REMEDIAL LAW
UP LAW BOC
EVIDENCE
Testimonial Evidence
REMEDIAL LAW
QUALIFICATIONS OF A
WITNESS
WITNESS DEFINED
QUALIFICATIONS OF A WITNESS
QUALIFICATIONS OF A WITNESS
ACCORDING TO HERRERA
WHEN DETERMINED
Qualification of a witness is determined at the
time the said witness are produced for
examination or at the taking of their
depositions.
With respect to children of tender years,
competence at the time of the occurrence is
also taken into account.
PAGE 354
COMPETENCY VERSUS
CREDIBILITY
COMPETENCY
OF
WITNESS
Credibility
REMEDY
FOR
ERRORS
OR
QUESTIONS ON COMPETENCE OF
WITNESS IS BY APPEAL
UP LAW BOC
EVIDENCE
COMPETENCY PRESUMED
INCOMPETENCE
FROM PRIVILEGE
DISTINGUISHED
DISQUALIFICATIONS OF
WITNESSES
EFFECT IF WITNESS HAS INTEREST
IN THE SUBJECT MATTER
[REGALADO]
EFFECT OF RELATIONSHIP
Requisites:
(1) Person must be incapable of intelligently
making known his perception to others
(2) His incapability must exist at the time of his
production for examination [Riano]
PAGE 355
REMEDIAL LAW
Requisites:
(1) Mental maturity of the witness (child) must
render him incapable of perceiving the facts
respecting which he is examined.
(2) He is incapable of relating his perception
truthfully. [Riano]
PRESUMPTION
OF
SANITY
UNSOUND MIND
Includes
any
mental
aberration
(organic/functional), induced by drugs/
hypnosis
Not disqualified as long as the witness can
convey ideas by words/signs
DEAF-MUTES
Deaf-mutes are competent witnesses where
they have sufficient knowledge to understand
and appreciate the sanctity of an oath and
comprehend the facts as to which they wish to
speak, and are capable of communicating
their Ideas with respect thereto. [People v.
Hayag (G.R. No. L-38635 November 17, 1980)]
They may give evidence by signs, or through
an interpreter or in writing, and such
testimony, through an interpreter, is not
hearsay. But sign language must be capable
of verification. [People v. Hayag (G.R. No. L38635 November 17, 1980)]
UP LAW BOC
EVIDENCE
CHILD WITNESS
The competency of a child witness is
determined by his capacity for observation,
recollection and communication. [People v.
Mendoza (G.R. No. 113791. February 22, 1996)]
PAGE 356
REMEDIAL LAW
SCOPE OF RULE
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute
prohibition against the spouses testifying to any
facts affecting the other however these facts
may have been acquired. [Herrera, pg. 306]
Duration
The privilege lasts only during the marriage and
terminates upon divorce or annulment or death.
[Herrera, pg. 307]
UP LAW BOC
EVIDENCE
BY REASON OF PRIVILEGED
COMMUNICATIONS
PRIVILEGE (DEFINED)
A privilege is a rule of law that, to protect a
particular relationship or interest, either permits
a witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone usually one of the parties, to
prevent the witness from revealing certain
information. [Herrera, pg. 315]
PAGE 357
REMEDIAL LAW
UP LAW BOC
EVIDENCE
IN CONTRAST TO MARITAL
DISQUALIFICATION
Marital Disqualification Marital Privilege [Sec.
[Sec. 22]
24 (a)]
One spouse should be Neither of the spouses
a party to the case;
needs to be a party;
Applies only if the Does not cease even
marriage is existing at after the marriage is
the time the testimony dissolved; and
is offered; and
Constitutes a total
prohibition on any
testimony
for
or
against the spouse of
the witness.
Prohibition is limited to
testimony
on
confidential
communications
between spouses.
130]
Requisites:
(1) There must be a communication made by
the client to the attorney or an advice given
by the attorney to his client;
(2) The communication must have been given in
confidence; and
(3) The communication or advice must have
been given either in the course of the
professional employment or with a view to
professional employment.
(4) The client has not given his consent to the
attorneys testimony thereon.
Attorneys secretary, stenographer, or clerk
are also covered by the rule and cannot be
examined concerning any fact the knowledge
of which has been acquired in such capacity
without the consent of the client AND their
employer.
SUBJECT-MATTER
OF
THE
PRIVILEGE
(1) Communications
(2) Observations by the lawyer (regardless of
PAGE 358
REMEDIAL LAW
UP LAW BOC
EVIDENCE
130]
REMEDIAL LAW
Extent of rule
The privilege extends to communications which
have been addressed to physicians assistants or
agents. [Herrera, pg. 345]
Where applicable
(1) All forms of communication, advice or
treatment
(2) Information acquired by the physician from
his personal observations and examination of
the patient
PAGE 359
Autopsical information
If the information was not acquired by the
physician in confidence, he may be allowed to
testify thereto. But if the physician performing
the autopsy was also the deceaseds physician,
he cannot be permitted either directly or
indirectly to disclose facts that came to his
knowledge while treating the living patient.
[Herrera citing US Case Travelers Insurance Co. v.
Bergeron)]
Duration of privilege
The privilege continues until the death of the
patient. It may be waived by the personal
representative of the decedent. [Herrera, pg.
356]
UP LAW BOC
EVIDENCE
130]
Requisites:
(1) Confession was made to, or advice given by
him pursuant to a religious duty enjoined in
the course of discipline of the sect or
denomination of the priest.
(2) Confession or advice was confidential and
penitential in character.
The priest or minister must be duly ordained
in the sect in which he belongs.
REMEDIAL LAW
OTHER PRIVILEGED
COMMUNICATION NOT IN THE ROC
NEWSMANS
PRIVILEGE
AMENDED BY RA 1477]
[RA
53,
AS
PAGE 360
TRIPS AGREEMENT
Undisclosed information or trade secrets are
considered privileged communication.
It is protected information if it complies with 3
requisites: 1) A secret in a sense that it is not
generally known among or readily accessible
to persons within the circles that normally
deal with the kind of info in question, 2) Has
commercial value because it is a secret; 3) Has
been subject to reasonable steps, under the
circumstances by the person lawfully in
control of the information, to keep it a secret.
[Art. 39]
Note: Electronic Document as Privileged
Communication
The confidential character of a privileged
communication is not solely on the ground that
it is in the form of an electronic document.
[Rules on Electronic Evidence Rule 3, sec. 3]
UP LAW BOC
EVIDENCE
REMEDIAL LAW
EXAMINATION OF A WITNESS
RIGHTS AND OBLIGATIONS OF A
WITNESS [SEC. 3, RULE 132]
OBLIGATION OF A WITNESS
To answer questions, although his answer may
tend to establish a claim against him.
RIGHTS OF A WITNESS
(1) To be protected from irrelevant, improper, or
insulting questions, and from harsh or
insulting demeanor
(2) Not to be detained longer than the interests
of justice require
(3) Not to be examined except only as to
matters pertinent to the issue
(4) Not to give an answer which will tend to
subject him to a penalty for an offense unless
otherwise provided by law, e.g., Sec. 8, RA
1379 and other immunity statutes which
grant the witness immunity from criminal
prosecution for offenses admitted
(5) Not to give an answer which will tend to
degrade his reputation, unless it to be the
very fact at issue or to a fact from which the
fact in issue would be presumed. But a
witness must answer to the fact of his
previous final conviction for an offense.
PAGE 361
ORDER OF EXAMINATION OF AN
INDIVIDUAL WITNESS
UP LAW BOC
EVIDENCE
REMEDIAL LAW
LEADING
AND
MISLEADING
QUESTIONS [SEC. 10, RULE 132]
QUESTIONS NOT ALLOWED
(1) Misleading Questions These are questions
that assume as true a fact not yet testified to
by the witness, or contrary to that which he
has previously stated. These are never
allowed.
(2) Leading Questions These are questions
that suggest to the witness the answer,
which the examining party desires.
Leading questions
General Rule: Leading questions are not
allowed.
7]
Matters covered
Those stated in the cross-examination, and
matters not dealt with, if allowed by the Court
RE-CROSS EXAMINATION [RULE 132, SEC.
8]
9]
PAGE 362
UP LAW BOC
EVIDENCE
8-SC]
SCOPE
Applies to all actions and proceedings, and
incidents requiring the reception of evidence
before the courts, quasi-judicial bodies, whose
rules of procedure are subject to disapproval of
the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of
this Rule, and investigating officers and bodies
authorized by the SC to receive evidence,
including the IBP [Sec. 1]
SUBMISSION OF JUDICIAL AFFIDAVITS AND
EXHIBITS IN LIEU OF DIRECT TESTIMONIES
(a) The parties shall file with the court and serve
on the adverse party, personally or by
licensed courier service, not later than five
days before pre-trial or preliminary
conference or the scheduled hearing with
respect to motions and incidents, the
following:
(1) The judicial affidavits of their witnesses,
which shall take the place of such
witnesses' direct testimonies; and
PAGE 363
REMEDIAL LAW
(2) The
UP LAW BOC
EVIDENCE
REMEDIAL LAW
10]
ADMISSIONS AND
CONFESSIONS
RES INTER ALIOSACTA RULE (2
BRANCHES)
PAGE 364
UP LAW BOC
EVIDENCE
SEC. 26]
REMEDIAL LAW
RATIONALE
No man would make any declaration against
himself unless it is true. [Republic v. Bautista
(G.R. No. 169801 September 11, 2007)]
AS DISTINGUISHED
ADMISSIONS
Judicial
FROM
JUDICIAL
Extrajudicial
PAGE 365
of the party;
agency;
UP LAW BOC
EVIDENCE
PAGE 366
REMEDIAL LAW
RULE 130]
REQUISITES
(1) There must be an act, declaration or an
omission by a predecessor-in-interest;
(2) Act, declaration or omission must have
occurred while he was holding (not after) the
title to the property; and
(3) Act, declaration or omission must be in
relation to the property.
PRIVIES DEFINED
Persons who are partakers or have an interest
in any action or thing, or any relation to
another [Riano citing Blacks Law Dictionary]
It denotes the idea of succession, not only be
right of heirship and testamentary legacy, but
also that of succession by singular title,
derived from acts inter vivos, and for special
purposes. (example: assignee of a credit and
one subrogated to it are privies.) [Alpuerto v.
Perez Pastor and Roa (G.R. No. L-12794
October 14, 1918)]
UP LAW BOC
EVIDENCE
ADMISSION BY SILENCE
REQUISITES FOR ADMISSIBILITY
When silence is deemed an admission: [People
v. Paragsa (G.R. No. L-44060 July 20, 1978)]
(1) Person heard or understood the statement;
(2) That he was at a liberty to make a denial;
(3) That the statement was about a matter
affecting his rights or in which he was
interested and which naturally calls for a
response;
(4) That the facts were within his knowledge;
and
(5) That the fact admitted from his silence is
material to the issue
WHEN NOT APPLICABLE
(1) Statements adverse to the party were made
in the course of an official investigation,
neither asked to reply nor comment [Sec.
2(b), R.A. 7438]
(2) Party had justifiable reason to remain silent,
ex. Acting on advice of counsel [Regalado]
CONFESSIONS
REMEDIAL LAW
PAGE 367
Confession
of
in
UP LAW BOC
EVIDENCE
REMEDIAL LAW
MEANING OF HEARSAY
HEARSAY RULE
GENERAL RULE ON HEARSAY
A witness can testify only as to those facts
which he knows of his personal knowledge, or
those derived from his own perception. [Rule
130, sec. 36]
The hearsay rule is not limited to oral
testimony or statements; it applies to written,
as well as oral statements. [Consunji v. CA
(G.R. No. 137873. April 20, 2001)]
If a party does not object to hearsay evidence,
the same is admissible, as a party can waive
his right to cross-examine [People v. Ola (G.R.
No. L-47147 July 3, 1987)]
Repeated failure to cross-examine is an
implied waiver [Savory Luncheonette v. Lakas
ng Manggagawang Pilipino (G.R. No. L-38964
January 31, 1975)]
PAGE 368
DOCTRINE OF INDEPENDENTLY
RELEVANT STATEMENTS
Statements or writings attributed to a person
not on the witness stand, which are being
offered not to prove the truth of the facts
stated therein, but only to prove that such
were actually made.
These are not covered by the hearsay rule
[People v. Cusi (G.R. No. L-20986. August 14,
1965)]
These are statements which are relevant
independently of whether they are true or not.
[Estrada v. Desierto (G.R. Nos. 146710-15. April
3, 2001)]
UP LAW BOC
EVIDENCE
OF
DYING DECLARATION
PAGE 369
REMEDIAL LAW
UP LAW BOC
EVIDENCE
REMEDIAL LAW
PAGE 370
Admission by a party
(Rule 130.26)
Declaration against
Interest (Rule 130.38)
an
the
Secondary evidence
ACT OR DECLARATION
PEDIGREE
ABOUT
UP LAW BOC
EVIDENCE
PEDIGREE INCLUDES
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected
with pedigree. [Sec. 39, Rule 130]
PROOF OTHER THAN DECLARATION
General Rule: Proof of relationship must be
shown in evidence other than the declaration.
Exception: The general rule does not apply
where the claim is sought to reach the estate of
the declarant himself, and not merely to
establish a right through his declarations to the
property of some other member of the family.
[Tison v. CA (G.R. No. 121027. July 31, 1997)]
NOT APPLICABLE TO ADOPTION
The rule allowing proof of pedigree is not
applicable to adoption. The absence of proof of
an order of adoption by the court, as provided
by statute, cannot be substituted by parol
evidence that the child has lived with a person,
not his parent, and was treated as child during
the latters lifetime. [Herrera, pg. 468 citing
Lazatin v. Campos (G.R. No. L-43955-56 July 30,
1979)]
PEDIGREE DECLARATION BY CONDUCT
This rule may also consist of proof of acts or
conduct of relatives and the mode of treatment
in the family of one whose parentage is in
question. [Herrera, pg. 649]
PAGE 371
REMEDIAL LAW
Independent evidence
is needed to establish
relationship between
declarant and person
whose pedigree is in
issue
COMMON REPUTATION
REQUISITES FOR ADMISSIBILITY
(1) Reputation pertains to:
(a) facts of public or general interest more
than 30 years old,
(b) marriage, or
(c) moral character
(2) Common reputation existed ante litem
motam. [sec. 41, Rule 130]
UP LAW BOC
EVIDENCE
REMEDIAL LAW
PAGE 372
ENTRIES IN
BUSINESS
THE
COURSE
OF
UP LAW BOC
EVIDENCE
PAGE 373
REMEDIAL LAW
LEARNED TREATISES
REQUISITES FOR ADMISSIBILITY
(1) Published treatise, periodical or pamphlet is
on a subject of history, law, science, or art;
and
(2) Court takes either:
(a) judicial notice of it, or
(b) witness expert in the subject testifies that
the writer of the statement in the treatise,
periodical or pamphlet is recognized in his
profession or calling as expert in the
subject
TESTIMONY OR DEPOSITION AT A
FORMER TRIAL
REQUISITES FOR ADMISSIBILITY [SEC. 47,
UP LAW BOC
EVIDENCE
OPINION RULE
General Rule: The opinion of witness is not
admissible [Sec. 48, Rule 130.]
Exceptions [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness [Rule 130, sec. 49]
(2) Ordinary witness [Rule 130, sec. 50]
OPINION OF EXPERT WITNESS [SEC. 49,
RULE 130]
PAGE 374
REMEDIAL LAW
RULE 130]
UP LAW BOC
EVIDENCE
PAGE 375
REMEDIAL LAW
CHARACTER EVIDENCE
General Rule [Sec. 51, Rule 130]: Character
evidence is not admissible.
Exceptions
(1) Criminal cases [Sec. 51(a), Rule 130]
(2) Civil case [Sec. 51 (b), Rule 130]
(3) In the case provided for in Rule 132, Sec. 14.
CHARACTER EVIDENCE (DEFINITION)
The aggregate of the moral qualities which
belong to and distinguish an individual person;
the general result of ones distinguishing
attributes. [Herrera citing Blacks Law Dictionary,
pg. 834]
CHARACTER
DISTINGUISHED
FROM
REPUTATION
Character is what a man is and depends on
attributes he possesses. It signifies reality.
Reputation is what he is supposed to be in
what people say he is, it depends on attributes
which others believe one to possess. It
signifies what is accepted to be reality at
present. [Herrera citing Blacks Law Dictionary,
pg. 834]
CRIMINAL CASES
(1) Accused May prove his good moral
character, which is pertinent to the moral
trait involved in the offense charged.
(2) Prosecution May not prove the bad moral
character of the accused, except in rebuttal.
(3) Offended Party His/her good or bad moral
character may be proved if it tends to
establish in any reasonable degree the
probability or improbability of the offense
charged.
GOOD MORAL CHARACTER OF ACCUSED
The purpose of presenting evidence of good
moral character is to prove the improbability of
his doing the act charged. The accused may
prove his good moral character only if it is
pertinent to the moral trait involved in the
offense charged. [Herrera, pg. 835]
UP LAW BOC
EVIDENCE
RULE ON EXAMINATION OF A
CHILD WITNESS [A.M. NO. 004-
07-SC]
PAGE 376
REMEDIAL LAW
UP LAW BOC
MEANING
[SEC. 4 (A)]
EVIDENCE
OF
CHILD
WITNESS
PAGE 377
REMEDIAL LAW
UP LAW BOC
EVIDENCE
PAGE 378
REMEDIAL LAW
UP LAW BOC
EVIDENCE
REMEDIAL LAW
WHEN FORMAL
REQUIRED
AS DISTINGUISHED FROM
IDENTIFICATION OF DOCUMENTARY
EVIDENCE [INTERPACIFIC TRANSIT V.
AVILES (G.R. NO. 86062 JUNE 6, 1990)]
Identification
of
Formal Offer of Exhibit
Documentary Evidence
Done in the course of Done only when the
the
trial
and party rests his/her
accompanied by the case
marking
of
the
evidence
PAGE 379
OFFER
IS
NOT
UP LAW BOC
EVIDENCE
When to offer
At the time the witness is called
to testify
What to object to
Testimonial evidence
When to object
Immediately after offer
is made
REMEDIAL LAW
EXCLUDING INADMISSIBLE
EVIDENCE
FORMAL V. SUBSTANTIVE
OBJECTIONS [RIANO]
WAIVER OF OBJECTION
When the party should have objected but did
not. The failure to point out a defect, irregularity
or wrong in the admission or exclusion of
evidence. [Riano]
PAGE 380
UP LAW BOC
EVIDENCE
EFFECT OF WAIVER
A waiver of objection should not be construed
as an admission that the evidence is credible.
The scope of the waiver is only either on the
relevance or competence of the evidence.
[Riano]
REPETITION OF AN OBJECTION
POR LO QUEPUEDOVALER
PRINCIPLE
The Supreme Court encourages the admission
or borderline evidence for whatever it is worth or
por lo quepuedovaler. [Prats & Co. v. Phoenix
Insurance (52 Phil. 807 February 25, 1930)]
REMEDIAL LAW
PAGE 381
UP LAW BOC
EVIDENCE
TENDER OF EXCLUDED
EVIDENCE [SEC. 40, RULE 132]
Documentary
Testimonial
Rationale
(a) to allow the court to know the nature of the
testimony or the documentary evidence and
convince the trial judge to permit the
evidence or testimony; and
(b) even if he is not convinced to reverse his
earlier ruling, the tender is made to create
and preserve a record for appeal [Riano]
ERRONEOUS
TENDER
WAY
OF
REMEDIAL LAW
MAKING
PAGE 382
UP LAW BOC
PAGE 383
REMEDIAL LAW
UP LAW BOC
(9)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
PAGE 384
REMEDIAL LAW
UP LAW BOC
Civil Procedure
REMEDIAL LAW
PROCEDURE
PROHIBITION AGAINST
TEMPORARY RESTRAINING
ORDER AND PRELIMINARY
INJUNCTION
Preliminary Conference
PAGE 385
Pre-trial Conference/s
Pre-trial Order
Continuous Trial
Judgment and Execution
UP LAW BOC
TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO)
REMEDIAL LAW
PRE-TRIAL CONFERENCE;
CONSENT DECREE
PERIOD OF EFFECTIVITY
DUTY OF COURT
The court where the case is assigned, shall
periodically monitor the existence of acts that
are the subject matter of the TEPO even if
issued by the executive judge, and may lift the
same at any time as circumstances may
warrant. [Rule 2, Sec. 8]
The judge shall report any action taken on a
TEPO, EPO, TRO or a preliminary injunction,
including its modification and dissolution, to
the Supreme Court, through the Office of the
Court Administrator, within ten (10) days from
the action taken. [Rule 2, Sec. 11]
PAGE 386
UP LAW BOC
PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS
PAGE 387
REMEDIAL LAW
UP LAW BOC
SLAPP AS A DEFENSE
If the suit is a SLAPP, such may be raised as
an affirmative defense in the Answer along
with other defenses.
If SLAPP is interposed as a defense, it is
mandatory for adverse party to file an
Opposition [Rule 6, Sec. 2]
The hearing on the defense of a SLAPP shall
be summary in nature and shall be resolved
within 30 days after the summary hearing
[Rule 6, Secs. 3 & 4]
QUANTUM OF EVIDENCE
Party asserting that claim is a SLAPP must
prove such with substantial evidence.
If the court finds aSLAPP defense valid, the
plaintiff is required to prove the following:
(1) that the case is not a SLAPP; and
(2) the merits of the case
(3) with preponderance of evidence. [Rule 6,
Sec.3]
PAGE 388
REMEDIAL LAW
UP LAW BOC
DISCOVERY MEASURES
The following discovery measures are available
to ALL parties to the writ:
(1) Ocular Inspection
(2) Production or inspection of documents and
things [Rule 7, Sec.12]
The motion must show that a production
order is necessary to establish the magnitude
of the violation or the threat as to prejudice
the life, health or property of inhabitants in
two or more cities or provinces.
OCULAR INSPECTION
Purpose is to order any person in possession or
control of a designated land or other property to
permit entry for the purpose of inspecting
orphotographing the property or any relevant
object or operation thereon.
PRODUCTION OR INSPECTION OF
DOCUMENTS AND THINGS
APPEAL
REMEDIAL LAW
WRIT OF CONTINUING
MANDAMUS
WHEN AVAILABLE
WHERE TO FILE
PROCEDURE
File a verified Petition with prayer that
respondent be ordered to do an act or series
of acts until the judgment is fully satisfied,
and to pay damages + Certification Against
Forum Shopping
Issuance of Writ of Continuing Mandamus
and Order to Comment
Filing of Comment within 10 days after
receipt of Order
Summary Hearing
Judgment
Return of the Writ
PAGE 389
UP LAW BOC
REMEDIAL LAW
Continuing Mandamus
Subject Matter
Directed
against (a) the unlawful neglect in the
performance of an
act specifically enjoined by law in
connection
with
the
enforcement/violation of an envtl rule
or (b) the unlawfully exclusion of
another from the use or enjoyment of
such right and in both instances, there
is no other plain, speedy and adequate
remedy in the ordinary course of law.
Respondent
Docket Fees
Exempted
Exempted
Venue
SC or CA
Ocular
Inspection
and
Production or Inspection
Order
None
None
Allowed
Discovery Measures
Damages
PAGE 390
UP LAW BOC
Criminal Procedure
WHO MAY FILE
(1) Offended party;
(2) Peace officer;
(3) Public officer charged with the enforcement
of an environmental law [Rule 9, Sec. 1]
INSTITUTION OF
AND CIVIL ACTION
CRIMINAL
PAGE 391
REMEDIAL LAW
UP LAW BOC
BAIL
WRITTEN UNDERTAKING BY
ACCUSED
REMEDIAL LAW
PLEA-BARGAINING
On the scheduled date of arraignment, the
court
shall
consider
plea-bargaining
arrangements.
Where the prosecution and offended party or
concerned government agency agree to the
plea offered by the accused, the court shall:
(1) Issue an order which contains the pleabargaining arrived at;
(2) Proceed to receive evidence on the civil
aspect of the case, if any; and
(3) Render and promulgate judgment of
conviction, including the civil liability for
damages. [Rule 15, Sec. 2]
PRE-TRIAL
PAGE 392
UP LAW BOC
SUBSIDIARY LIABILITIES
In case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under judgment, enforce such subsidiary
liability against a person or corporation
subsidiary liable under Article 102 and Article 103
of the Revised Penal Code. [Rule 18, Sec. 1]
Evidence
PRECAUTIONARY PRINCIPLE
When human activities may lead to threats of
serious and irreversible damage to the
environment that is scientifically plausible but
uncertain, actions shall be taken to avoid or
diminish that threat. [Rule 1, Sec. 4[b]]
When there is a lack of full scientific certainty
in establishing a causal link between human
activity and environmental effect, the court
shall apply the precautionary principle in
resolving the case before it.
The constitutional right of the people to a
balanced and healthful ecology shall be given
the benefit of the doubt. [Rule 20, Sec.1]
DOCUMENTARY EVIDENCE
PHOTOGRAPHIC, VIDEO AND
SIMILAR EVIDENCE MUST BE
AUTHENTICATED
Photographs, videos and similar evidence of
events, acts, transactions of wildlife, wildlife byproducts or derivatives, forest products or
mineral resources subject of a case shall be
admissible when authenticated by
(1) the person who took the same
(2) some other person present when said
evidence was taken, or
(3) any other person competent to testify on
the accuracy thereof. [Rule 21, Sec.1]
PAGE 393
REMEDIAL LAW