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CIVIL PROCEDURE

Actions ................................. 14

General Principles ................. 2

ACTION VS CAUSE OF ACTION .......................... 14

CONCEPT OF REMEDIAL LAW ............................ 2


CONCEPT ............................................................... 2

MEANING OF ORDINARY CIVIL ACTIONS ........ 14

APPLICABILITY ........................................................ 2

MEANING OF SPECIAL CIVIL ACTIONS ............. 14

PROSPECTIVITY/RETROACTIVITY

................................ 2

SUBSTANTIVE LAW AS DISTINGUISHED FROM


REMEDIAL LAW ................................................. 2
REMEDIAL LAW OR PROCEDURAL LAW ......................... 2
SUBSTANTIVE LAW ................................................... 2

RULE-MAKING POWER OF THE SUPREME COURT2


LIMITATIONS ON THE RULE-MAKING POWER OF THE
SUPREME COURT ..................................................... 2
POWER OF THE SUPREME COURT TO AMEND AND SUSPEND
PROCEDURAL RULES ................................................ 2

MEANING OF CRIMINAL ACTIONS ................... 14


CIVIL ACTIONS VERSUS
SPECIAL PROCEEDINGS .................................. 14
DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS ....................................................... 14

PERSONAL ACTIONS AND REAL ACTIONS ...... 15


IMPORTANCE OF DISTINCTION ................................... 15
LOCAL AND TRANSITORY ACTIONS ................ 15

NATURE OF PHILIPPINE COURTS ..................... 3

Cause of Action ................... 16

COURT AS DISTINGUISHED FROM A JUDGE ................... 3


CLASSIFICATION OF PHILIPPINE COURTS ...................... 3

ELEMENTS OF A CAUSE OF ACTION ................. 16

MEANING OF A COURT ........................................... 3

COURTS OF ORIGINAL AND APPELLATE JURISDICTION .....

4
4
CONSTITUTIONAL AND STATUTORY COURTS ............... 4
COURTS OF LAW AND EQUITY.................................. 4
PRINCIPLE OF JUDICIAL HIERARCHY .......................... 4
COURTS OF GENERAL AND SPECIAL JURISDICTION .........

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF

JUDICIAL STABILITY .............................................

Jurisdiction ............................ 4
JURISDICTION .................................................... 4
JURISDICTION IN GENERAL ............................... 4
JURISDICTION OVER THE PARTIES ............................... 4
JURISDICTION OVER THE SUBJECT MATTER ................... 5
JURISDICTION OVER THE ISSUES ................................. 6
JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION 6
SPECIFIC JURISDICTION .................................... 7
JURISDICTION OF COURTS ......................................... 7
JURISDICTION OVER SMALL CLAIMS, CASES
COVERED BY THE RULES ON SUMMARY
PROCEDURE AND BARANGAY CONCILIATION . 13
DEFINITION .......................................................... 13
PURPOSE ............................................................. 13
SCOPE ................................................................. 13
APPLICABILITY ....................................................... 13
PROHIBITED PLEADINGS ......................................... 14
TOTALITY RULE ..................................................... 14

MEANING OF CAUSE OF ACTION ...................... 16

RIGHT OF ACTION VERSUS CAUSE OF ACTION . 16


FAILURE TO STATE A CAUSE OF ACTION .......... 17
TEST OF THE SUFFICIENCY OF A CAUSE OF
ACTION ............................................................. 17
SPLITTING A SINGLE CAUSE OF ACTION AND ITS
EFFECTS ........................................................... 17
EFFECTS OF SPLITTING A CAUSE OF ACTION ................. 17
BASIS .................................................................. 17
PURPOSE ............................................................. 17
JOINDER AND MISJOINDER OF CAUSES OF
ACTION ............................................................. 17
JOINDER OF CAUSE OF ACTION .................................. 17
PURPOSES ........................................................... 17
REQUISITES .......................................................... 17
MISJOINDER OF CAUSES OF ACTION ........................... 17

Parties to Civil Actions ....... 18


REQUIREMENTS FOR A PERSON TO BE A PARTY
TO A CIVIL ACTION ............................................ 18
PARTIES TO A CIVIL ACTION ............................. 19
REAL PARTIES IN INTEREST; INDISPENSABLE
PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS ........................... 19
REAL PARTY IN INTEREST ........................................ 19

INDISPENSABLE PARTIES ........................................ 20


REPRESENTATIVE AS PARTIES .................................. 20
NECESSARY PARTY ................................................ 20
INDIGENT PARTY ................................................... 20
ALTERNATIVE DEFENDANTS .................................... 20

COMPULSORY AND PERMISSIVE JOINDER OF


PARTIES ............................................................21
COMPULSORY JOINDER OF INDISPENSABLE PARTIES ......21
PERMISSIVE JOINDER ..............................................21
MISJOINDER AND NON-JOINDER
OF PARTIES ......................................................21
CLASS SUIT .......................................................21
REQUISITES ..........................................................21
CLASS SUIT AND DERIVATIVE SUIT, COMPARED ............ 22
SUITS AGAINST ENTITIES WITHOUT JURIDICAL
PERSONALITY .................................................. 22
REQUISITES ......................................................... 22
EFFECT OF DEATH OF PARTY LITIGANT ........... 22
SUBSTITUTION OF PARTIES ...................................... 22
ACTION ON CONTRACTUAL MONEY CLAIMS ................. 22
TRANSFER OF INTEREST DURING THE PENDENCY OF THE
ACTION ............................................................... 22

Venue ................................... 23
VENUE VERSUS JURISDICTION ........................ 23
DISTINCTIONS BETWEEN VENUE AND JURISDICTION ...... 23
VENUE OF REAL ACTIONS ................................ 23
VENUE OF PERSONAL ACTIONS ...................... 23
VENUE OF ACTIONS
AGAINST NON-RESIDENTS .............................. 24
WHEN THE RULES ON VENUE
DO NOT APPLY ................................................. 24
EFFECTS OF STIPULATIONS ON VENUE ........... 24
OTHER RULES ON VENUE ................................ 24

Pleadings ............................24
DEFINITION ..................................................... 24
KINDS OF PLEADINGS ..................................... 25
PLEADINGS ALLOWED ............................................ 25
COMPLAINT ......................................................... 25
ANSWER ............................................................. 25
COUNTERCLAIMS .................................................. 25

CROSS-CLAIMS ..................................................... 27
THIRD (FOURTH, ETC.) PARTY COMPLAINTS ................ 27
COMPLAINT-IN-INTERVENTION ................................ 28
REPLY ................................................................ 28

PLEADINGS ALLOWED IN SMALL CLAIM CASES


AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE .................................. 28
PROHIBITED PLEADINGS, MOTIONS OR PETITIONS ....... 28
FORMS USED UNDER THE RULE OF PROCEDURE UNDER
SMALL CLAIMS CASES ............................................. 29
PROHIBITED PLEADINGS AND MOTIONS ...................... 29

PARTS OF A PLEADING .................................... 29


CAPTION ............................................................. 29
BODY ................................................................. 29
SIGNATURE AND ADDRESS ...................................... 29
VERIFICATION AND CERTIFICATION AGAINST FORUM
SHOPPING ........................................................... 29
EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING 30

ALLEGATIONS IN A PLEADING ........................ 30


MANNER OF MAKING ALLEGATIONS .......................... 30
PLEADING AN ACTIONABLE DOCUMENT ...................... 31
SPECIFIC DENIALS .................................................. 31
EFFECT OF FAILURE TO PLEAD ....................... 32
FAILURE TO PLEAD DEFENSES AND OBJECTIONS .......... 32
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM ...................................................... 32

DEFAULT ......................................................... 32
WHEN A DECLARATION OF DEFAULT IS PROPER ........... 32
EFFECT OF AN ORDER OF DEFAULT ........................... 32
RELIEF FROM AN ORDER OF DEFAULT ........................ 33
EFFECT OF A PARTIAL DEFAULT ................................ 33
EXTENT OF RELIEF ................................................. 33
ACTIONS WHERE DEFAULT ARE NOT ALLOWED ............ 33
FILING AND SERVICE OF PLEADINGS .............. 34
DEFINITION ......................................................... 34
PAPERS REQUIRED TO BE FILED AND SERVED .............. 34
PAYMENT OF DOCKET FEES ..................................... 34
FILING VERSUS SERVICE OF PLEADINGS ...................... 35
PERIODS OF FILING OF PLEADINGS ............................ 35
MANNER OF FILING ............................................... 35
MODES OF SERVICE ............................................... 36
AMENDMENT ...................................................37
HOW TO AMEND PLEADINGS .....................................37
AMENDMENT AS A MATTER OF RIGHT ....................... 38
AMENDMENTS BY LEAVE OF COURT ........................... 38
FORMAL AMENDMENT ........................................... 38
AMENDMENTS TO CONFORM TO OR AUTHORIZE
PRESENTATION OF EVIDENCE .................................. 38
DIFFERENT FROM SUPPLEMENTAL PLEADINGS ............ 38

EFFECT OF AMENDED PLEADING

............................... 39

Summons ............................ 39
NATURE AND PURPOSE OF SUMMONS IN
RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM .......................................... 39
PURPOSE ............................................................ 39
ISSUANCE OF SUMMONS ........................................ 39
CONTENTS OF SUMMONS ........................................ 39

VOLUNTARY APPEARANCE ............................. 39


GENERAL RULE ..................................................... 39
EXCEPTION .......................................................... 39
WHO SERVES THE SUMMONS ...................................40
RETURN OF SUMMONS ...........................................40
ALIAS SUMMONS ...................................................40
MODES OF SERVICE OF SUMMONS .............................40
PERSONAL SERVICE ........................................40
SERVICE IN PERSON ON DEFENDANT .........................40
SUBSTITUTED SERVICE ...................................40
RATIONALE ..........................................................40
CONSTRUCTIVE SERVICE
(BY PUBLICATION) ........................................... 41
REQUISITES ......................................................... 41
SERVICE OF SUMMONS UPON DIFFERENT ENTITIES ....... 41
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS
ARE UNKNOWN ....................................................
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES ........................................................

41
41

EXTRA-TERRITORIAL SERVICE,
WHEN ALLOWED ............................................. 41
REQUISITES ......................................................... 41
MODES OF SERVICE ................................................ 41
SERVICE UPON PRISONERS AND MINORS ...... 41
SERVICE UPON PRISONER ....................................... 41
SERVICE UPON MINORS AND INCOMPETENTS .............. 41
PROOF OF SERVICE .......................................... 41
RETURN OF SERVICE .............................................. 41
PROOF OF SERVICE ................................................ 41
EFFECT OF NON-SERVICE OF SUMMONS ..................... 42
WAIVER OF SERVICE OF SUMMONS ............................ 42
SERVICE OF SUMMONS UPON
DIFFERENT ENTITIES (ANNEX A) ................................ 42

Motions .................................42
MOTIONS IN GENERAL .................................... 42
DEFINITION OF A MOTION ........................................ 42

MOTIONS VERSUS PLEADINGS ................................. 42


CONTENTS AND FORM OF MOTIONS .......................... 42
NOTICE OF HEARING AND HEARING OF MOTIONS .......... 43
OMNIBUS MOTION RULE ......................................... 43
LITIGATED AND EX PARTE MOTIONS .......................... 43
PRO-FORMA MOTIONS ........................................... 43

MOTIONS FOR BILL OF PARTICULARS ............ 43


BILL OF PARTICULARS ............................................ 43
PURPOSE AND WHEN APPLIED FOR ........................... 44
ACTIONS OF THE COURT ......................................... 44
COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE ....................................................... 44
EFFECT ON THE PERIOD TO FILE
A RESPONSIVE PLEADING ....................................... 44

MOTION TO DISMISS ....................................... 45


DEFINITION ......................................................... 45
TYPES OF DISMISSAL OF ACTION ............................... 45
GROUNDS ........................................................... 45
RESOLUTION OF MOTION ........................................ 48
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED .......................................................... 48
REMEDIES OF THE DEFENDANT
WHEN THE MOTION IS DENIED ................................. 48
EFFECT OF DISMISSAL OF
COMPLAINT ON CERTAIN GROUNDS .......................... 48
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES . 48
BAR BY DISMISSAL ................................................ 48
DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER
RULE 33 ............................................................. 49

Dismissal of Actions .......... 49


DISMISSAL UPON NOTICE BY PLAINTIFF; TWODISMISSAL RULE ............................................. 49
DISMISSAL UPON PLAINTIFFS NOTICE ....................... 49
DISMISSAL UPON MOTION BY PLAINTIFF; EFFECT
ON EXISTING COUNTERCLAIM ........................ 49
DISMISSAL UPON PLAINTIFFS MOTION ...................... 49
DISMISSAL DUE TO THE FAULT OF PLAINTIFF 49
DISMISSAL DUE TO PLAINTIFFS FAULT ...................... 49
DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM
OR THIRD-PARTY COMPLAINT ........................ 50

Pre-Trial .............................. 50
CONCEPT OF PRE-TRIAL ................................. 50
DEFINITION ......................................................... 50
NATURE AND PURPOSE .................................. 50
PURPOSE ............................................................ 50

NOTICE OF PRE-TRIAL ..................................... 51


APPEARANCE OF PARTIES; EFFECT OF FAILURE
TO APPEAR ...................................................... 51
APPEARANCE OF PARTIES ....................................... 51
FAILURE TO APPEAR AT PRE-TRIAL ........................... 51
PRE-TRIAL BRIEF; EFFECT OF FAILURE TO
APPEAR ........................................................... 52
PRE-TRIAL BRIEF .................................................. 52
RECORD OF PRE-TRIAL ........................................... 52
CALENDAR OF CASES ............................................. 52
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL CASE
AND PRE-TRIAL IN CRIMINAL CASE ................ 52
ALTERNATIVE DISPUTE RESOLUTION (ADR) [RA
9285] ............................................................... 53
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM? . 53
POLICY BEHIND THE ADR ......................................... 53
EXCEPTION TO THE APPLICATION OF RA 9285: ............ 53
MODES OF ALTERNATIVE DISPUTE RESOLUTIONS: ........ 53

Intervention .........................54
DEFINITION OF INTERVENTION ....................... 54
WHO MAY INTERVENE ..................................... 54
MEANING OF LEGAL INTEREST ....................... 54
REQUISITES FOR INTERVENTION .................... 55
HOW INTERVENTION IS DONE ................................... 55
FACTORS CONSIDERED IN ALLOWING INTERVENTION .... 55
PLEADINGS IN INTERVENTION .................................. 55
TIME TO INTERVENE ........................................ 55
REMEDY FOR THE DENIAL OF MOTION TO
INTERVENE ...................................................... 55
REMEDIES ........................................................... 55

Subpoena ........................... 55

COMPELLING ATTENDANCE OF WITNESSES;


CONTEMPT ...................................................... 56
PERSONAL APPEARANCE IN COURT ........................... 56
APPLICATION FOR SUBPOENA TO PRISONER ............... 56
REMEDY IN CASE OF WITNESS FAILURE TO ATTEND ...... 56
QUASHING OF SUBPOENA .............................. 56
GROUNDS FOR QUASHING ...................................... 57

Modes of Discovery ............. 57


DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL ........... 57
DEPOSITIONS UNDER RULE 23 ................................. 57
WRITTEN INTERROGATORIES UNDER RULE 23 ............. 59
DEPOSITIONS BEFORE ACTION UNDER RULE 24 ........... 60
DEPOSITIONS PENDING APPEAL UNDER RULE 24 ......... 60
WRITTEN INTERROGATORIES TO ADVERSE
PARTIES .......................................................... 60
PURPOSE ............................................................ 60
PROCEDURE ......................................................... 61
ANSWER ............................................................. 61
EFFECT OF OBJECTIONS TO INTERROGATORIES ............. 61
NUMBER OF INTERROGATORIES ................................ 61
SCOPE OF INTERROGATORIES ................................... 61
USE OF INTERROGATORIES ...................................... 61
FAILURE TO FILE WRITTEN INTERROGATORIES .............. 61
CONSEQUENCES OF REFUSAL TO ANSWER ................... 61
REQUEST FOR ADMISSION ............................... 61
PURPOSE ............................................................. 61
WHEN MAY REQUEST BE MADE ................................. 62
IMPLIED ADMISSION BY ADVERSE PARTY .................... 62
DEFERMENT OF COMPLIANCE .................................. 62
EFFECT OF ADMISSION ........................................... 62
WITHDRAWAL ..................................................... 62
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION ......................................................... 62

PRODUCTION OR INSPECTION OF DOCUMENTS


OR THINGS ...................................................... 62
PROCEDURE ........................................................ 62
WHAT THE COURT MAY ORDER ................................. 62

TYPES (AND DEFINITION) OF SUBPOENA ........ 55

BY WHOM ISSUED ............................................ 56


FORM AND CONTENTS OF SUBPOENA ............ 56

PHYSICAL AND MENTAL EXAMINATION OF


PERSONS ......................................................... 63
MOTION REQUESTING EXAMINATION ......................... 63

SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER FOR


PRODUCTION OR INSPECTION (ANNEX B) ................... 56

COURT TO ISSUE THE ORDER FOR


EXAMINATION IN ITS DISCRETION. ............................ 63
REPORT OF FINDINGS ............................................ 63
WAIVER OR PRIVILEGE ........................................... 63
PHYSICIAN-PATIENT PRIVILEGE ................................ 63

SUBPOENA AD TESTIFICANDUM ..................... 56


SERVICE OF SUBPOENA ................................... 56

CONSEQUENCES OF REFUSAL TO COMPLY WITH


MODES OF DISCOVERY (ANNEX C) ..................... 63

SUBPOENA DUCES TECUM .............................. 56

Trial ...................................... 63
TRIAL, DEFINED ............................................... 63
NOTICE OF TRIAL ............................................. 63
ADJOURNMENTS AND POSTPONEMENTS ...... 63
REQUISITES OF MOTION
TO POSTPONE TRIAL ....................................... 63
SUBPOENA .......................................................... 64
AGREED STATEMENT OF FACTS ...................... 64
ORDER OF TRIAL; REVERSAL OF ORDER ......... 64
CONDUCT OF TRIAL ................................................ 64
GENERAL ORDER OF TRIAL ...................................... 64
CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL ......................................................... 64
CONSOLIDATION OF TRIAL ....................................... 64
SEVERANCE OF TRIAL ............................................. 64
STATEMENT OF JUDGE ............................................ 65
SUSPENSION OF ACTIONS ....................................... 65
DELEGATION OF RECEPTION OF EVIDENCE .... 65
TRIAL BY COMMISSIONERS ............................. 65
KINDS OF TRIAL BY COMMISSIONER ........................... 65
REFERENCE BY CONSENT OR ORDERED ON MOTION ...... 65
POWERS OF THE COMMISSIONER .............................. 65
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT ....................................... 65

Demurrer to Evidence ....... 66


GROUND .......................................................... 66
DEFINITION .......................................................... 66
EFFECT OF DENIAL; EFFECT OF GRANT ........... 66
WAIVER OF RIGHT TO PRESENT EVIDENCE ..... 67
DEMURRER TO EVIDENCE IN A CIVIL CASE V.
DEMURRER TO EVIDENCE IN
A CRIMINAL CASE ............................................ 67
DIFFERENCES BETWEEN DEMURRER IN CIVIL AND CRIMINAL
CASES ................................................................ 67

Judgments and
Final Orders ....................... 67
JUDGMENT ...................................................... 67
REQUISITES OF A VALID JUDGMENT .......................... 67
KINDS OF JUDGMENT ............................................. 67

JUDGMENT WITHOUT TRIAL ........................... 68


WHEN TRIAL IS NOT NECESSARY ............................... 68
CONTENTS OF A JUDGMENT ........................... 68
PARTS OF A JUDGMENT .......................................... 68
DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE
COURT ............................................................... 69
CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY
OF THE DECISION .................................................. 69

JUDGMENT ON THE PLEADINGS ..................... 69


GROUNDS ........................................................... 69
CANNOT BE RENDERED MOTU PROPRIO ..................... 69
WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY . 69
EFFECTS ............................................................. 69
SUMMARY JUDGMENTS .................................. 69
DEFINITION, NATURE ............................................. 69
GENUINE ISSUE .................................................... 69
PROCEDURE ........................................................ 70
FOR THE CLAIMANT ............................................... 70
FOR THE DEFENDANT ............................................ 70
WHEN THE CASE NOT FULLY ADJUDICATED ................. 70
AFFIDAVITS AND ATTACHMENTS .............................. 70
JUDGMENT ON THE PLEADINGS VERSUS
SUMMARY JUDGMENTS ................................... 71
RENDITION OF JUDGMENTS
AND FINAL ORDERS ......................................... 71
FORM OF JUDGMENT .............................................. 71
DEFINITION OF RENDITION OF JUDGMENT ................... 71
PERIOD WITHIN WHICH DECISION IS TO BE RENDERED .... 71
INTERPRETATION OF THE JUDGMENT ......................... 71
ENTRY OF JUDGMENT AND FINAL ORDER ....... 71
DEFINITION OF ENTRY OF JUDGMENT .......................... 71
ENTRY OF JUDGMENTS AND FINAL ORDERS ................. 71
AMENDMENTS TO JUDGMENT .................................. 72

Post-Judgment Remedies . 72
REMEDIES BEFORE
FINALITY OF JUDGMENT ................................. 72

MOTION FOR NEW TRIAL OR RECONSIDERATION


......................................................................... 72
MOTION FOR RECONSIDERATION .............................. 72
GROUNDS ........................................................... 72
WHEN TO FILE ...................................................... 72
DENIAL OF THE MOTION; EFFECT ...............................73
GRANT OF THE MOTION; EFFECT ............................... 74
REMEDY WHEN MOTION IS DENIED, FRESH 15-DAY PERIOD
RULE .................................................................. 74
APPEALS IN GENERAL ..................................... 74

JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL ... 74


MATTERS NOT APPEALABLE .................................... 75
REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE
NOT APPEALABLE .................................................. 75
MODES OF APPEAL ................................................ 75
ISSUES TO BE RAISED ON APPEAL ............................. 84
PERIOD OF APPEAL ................................................ 84
PERFECTION OF APPEAL ......................................... 86
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE MTC ..................................... 86
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE RTC ...................................... 88
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE CA ....................................... 89
APPEAL FROM JUDGMENTS OR
FINAL ORDERS OF THE CTA ...................................... 89
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE COA ..................................... 89
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE COMELEC .............................. 90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE CSC ...................................... 90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE OMBUDSMAN ......................... 90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF THE NLRC .................................... 90
REVIEW OF FINAL JUDGMENTS OR
FINAL ORDERS OF QUASI-JUDICIAL AGENCIES ............. 91

EXECUTION AS A MATTER OF RIGHT (ANNEX D) .......... 95


DISCRETIONARY EXECUTION (ANNEX E) .................... 95

RELIEF FROM JUDGMENTS, ORDERS AND OTHER


PROCEEDINGS ................................................. 91
GROUNDS FOR AVAILING OF THE REMEDY ................... 92
TIME TO FILE PETITION ........................................... 92
CONTENTS OF PETITION ......................................... 92

EXAMINATION OF OBLIGOR OF JUDGMENT


OBLIGOR ....................................................... 104

ANNULMENT OF JUDGMENTS OR FINAL ORDERS


AND RESOLUTIONS ......................................... 92
GROUNDS FOR ANNULMENT ..................................... 92
PERIOD TO FILE ACTION ......................................... 93
EFFECTS OF JUDGMENT OF ANNULMENT .................... 93
COLLATERAL ATTACK OF JUDGMENTS ....................... 93
REMEDIES FROM A VOID JUDGMENT ........................... 93
WHAT IS A VOID JUDGMENT? ................................... 93
HOW DO YOU ATTACK A VOID JUDGMENT? .................. 93
WHAT ARE YOUR REMEDIES? ................................... 93
SOME JURISPRUDENTIAL BASIS ................................ 93

Execution, Satisfaction and


Effect of Judgments .......... 94
DIFFERENCE BETWEEN FINALITY OF JUDGMENT
FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION ...................................................... 94
WHEN EXECUTION SHALL ISSUE ..................... 94

HOW A JUDGMENT IS EXECUTED .................... 96


EXECUTION BY MOTION OR BY INDEPENDENT ACTION .. 96
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION .... 96
EXECUTION OF JUDGMENTS FOR MONEY .................... 96
EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS ........... 98
EXECUTION OF SPECIAL JUDGMENTS ........................ 99
EFFECT OF LEVY ON THIRD PERSONS ......................... 99
PROPERTIES EXEMPT FROM EXECUTION ....... 99
PROCEEDINGS WHERE PROPERTY IS CLAIMED
BY THIRD PERSONS ........................................ 101
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND
REPLEVIN .......................................................... 101

RULES ON REDEMPTION ................................ 102


EFFECTS OF REDEMPTION ...................................... 102
RECOVERY OF PURCHASE PRICE AND
REVIVAL OF JUDGMENT ......................................... 103

EXAMINATION OF JUDGMENT OBLIGOR WHEN


JUDGMENT IS UNSATISFIED ......................... 104
WHEN EXAMINATION MAY BE MADE ........................ 104
HOW ................................................................ 104

DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS


AFTER THE PROMULGATION OF FINAL AND EXECUTORY
JUDGMENT? ...................................................... 104
REMEDIES OF JUDGMENT CREDITOR
IN AID OF EXECUTION ........................................... 104
ENTRY OF SATISFACTION ...................................... 104

EFFECT OF JUDGMENT OR FINAL ORDERS ... 104


RES JUDICATA IN JUDGMENTS IN REM .......................105
RES JUDICATA IN JUDGMENTS IN PERSONAM .............105
CONCLUSIVENESS OF JUDGMENT/PRECLUSION OF ISSUES
(AUTER ACTION PENDANT) ....................................105
REQUISITES OF RES JUDICATA .................................105
RES JUDICATA V. LAW OF THE CASE V. STARE DECISIS 105
ENFORCEMENT AND EFFECT OF FOREIGN
JUDGMENTS OR FINAL ORDERS ....................105
EFFECT OF FOREIGN JUDGMENTS .............................105

Provisional Remedies ....... 106


NATURE OF PROVISIONAL REMEDIES ...........106
DEFINITION ........................................................106
JURISDICTION OVER

PROVISIONAL REMEDIES .............................. 106


PRELIMINARY ATTACHMENT ........................ 106
DEFINITION ........................................................ 106
PURPOSES ......................................................... 106
GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT .. 106
REQUISITES ........................................................107
ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;
AFFIDAVIT AND BOND ..........................................107
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS ..........................................................107
MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;
WHEN PROPERTY ATTACHED IS CLAIMED BY
THIRD PERSON ................................................... 108
DISCHARGE OF ATTACHMENT AND
THE COUNTER-BOND ........................................... 109
SATISFACTION OF JUDGMENT
OUT OF PROPERTY ATTACHED ................................. 110

PRELIMINARY INJUNCTION ............................. 111


DEFINITIONS AND DIFFERENCES: DRELIMINARY INJUNCTION
AND TEMPORARY RESTRAINING ORDER; STATUS QUO ANTE
ORDER ................................................................ 111
REQUISITES ......................................................... 111
KINDS OF INJUNCTION ........................................... 112
WHEN WRIT MAY BE ISSUED .................................... 113
GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION 113
GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION OF
INJUNCTION OR RESTRAINING ORDER ....................... 113
DURATION OF A TEMPORARY RESTRAINING ORDER .... 114
IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR
WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS ................................. 114
RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF
SUMMONS IN RELATION TO ATTACHMENT ................. 114

RECEIVERSHIP ................................................ 115


NATURE ............................................................. 115
PURPOSE ........................................................... 115
CASES WHEN RECEIVER MAY BE APPOINTED ............... 115
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER ....... 115
POWERS OF A RECEIVER ........................................ 115
TWO (2) KINDS OF BOND ........................................ 116
TERMINATION OF RECEIVERSHIP ............................. 116
REPLEVIN ....................................................... 116
WHEN MAY WRIT BE ISSUED .................................... 116
REQUISITES ........................................................ 117
AFFIDAVIT AND BOND; REDELIVERY BOND ................. 117
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY ........... 117

Special Civil Actions .......... 118


NATURE OF SPECIAL CIVIL ACTIONS .............. 118
HOW COMMENCED ............................................... 118

ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL


ACTIONS ......................................................... 118
JURISDICTION AND VENUE ............................ 118
INTERPLEADER .............................................. 118
DEFINITION ........................................................ 118
PURPOSE ........................................................... 118
REQUISITES FOR INTERPLEADER ............................. 119
WHEN TO FILE ..................................................... 119
DECLARATORY RELIEFS AND
SIMILAR REMEDIES ........................................ 119
WHO MAY FILE THE ACTION .................................... 119
REQUISITES OF ACTION FOR DECLARATORY RELIEF ...... 120
WHEN COURT MAY REFUSE TO
MAKE JUDICIAL DECLARATION ................................ 120
CONVERSION TO ORDINARY ACTION ......................... 120
PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES ..... 120

REVIEW OF JUDGMENTS AND FINAL ORDERS OR


RESOLUTION OF THE COMELEC AND COA ..... 121
SCOPE ............................................................... 121
PROCEDURE ....................................................... 121
DISTINCTION IN THE APPLICATION OF RULE 65 TO
JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS
AND OFFICERS .................................................... 123

CERTIORARI, PROHIBITION
AND MANDAMUS ........................................... 123
WHEN PETITION FOR CERTIORARI, PROHIBITION AND
MANDAMUS IS PROPER (ANNEX F) ........................... 124
INJUNCTIVE RELIEF ............................................... 125
CERTIORARI DISTINGUISHED FROM APPEAL BY CERTIORARI;
PROHIBITION AND MANDAMUS DISTINGUISHED FROM
INJUNCTION; WHEN AND WHERE TO FILE PETITION ...... 125
EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION
BEFORE FILING PETITION ....................................... 125
RELIEFS PETITIONER IS ENTITLED TO ........................ 125
FACTIONS/OMISSIONS OF MTC/RTC
IN ELECTION CASES .............................................. 126
WHERE TO FILE PETITION ....................................... 126
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION .. 126

QUO WARRANTO ........................................... 126


DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS
ELECTION CODE ................................................... 126
WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST
INDIVIDUALS ...................................................... 126
WHEN INDIVIDUAL MAY COMMENCE AN ACTION .......... 127
JUDGMENT IN QUO WARRANTO ACTION .................... 127
RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC
OFFICE .............................................................. 127

EXPROPRIATION ............................................ 127


MATTERS TO ALLEGE IN
COMPLAINT FOR EXPROPRIATION ............................ 127
TWO STAGES IN EVERY ACTION FOR EXPROPRIATION .... 127
WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO
POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA

PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY


INJUNCTION ...................................................... 140
RESOLVING DEFENSE OF OWNERSHIP ...................... 140
HOW TO STAY THE IMMEDIATE
EXECUTION OF JUDGMENT .................................... 140
SUMMARY PROCEDURE, PROHIBITED PLEADINGS ....... 141

8974 ............................................................... 128


NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST
COMPENSATION ................................................. 128
DEFENSES AND OBJECTIONS ................................. 128
ORDER OF EXPROPRIATION .................................. 129
ASCERTAINMENT OF JUST COMPENSATION .............. 129
APPOINTMENT OF COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION
UPON COMMISSIONERS REPORT ........................... 129
RIGHTS OF PLAINTIFF UPON JUDGMENT
AND PAYMENT .................................................... 130
EFFECT OF RECORDING OF JUDGMENT ..................... 130

FORECLOSURE OF
REAL ESTATE MORTGAGE ............................. 130
JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE . 130
SALE OF MORTGAGED PROPERTY; EFFECT ................ 130
DISPOSITION OF PROCEEDS OF SALE ......................... 131
DEFICIENCY JUDGMENT ......................................... 131
JUDICIAL FORECLOSURE V.
EXTRAJUDICIAL FORECLOSURE ................................ 131
EQUITY OF REDEMPTION VERSUS
RIGHT OF REDEMPTION ......................................... 132

PARTITION ...................................................... 132


WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
DEFENDANTS ...................................................... 132
MATTERS TO ALLEGE IN THE
COMPLAINT FOR PARTITION ................................... 133
TWO (2) STAGES IN EVERY ACTION FOR PARTITION ...... 133
ORDER OF PARTITION AND PARTITION
BY AGREEMENT ................................................... 133
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS, COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS REPORT ..................134
JUDGMENT AND ITS EFFECTS ..................................135
PARTITION OF PERSONAL PROPERTY ........................135
PRESCRIPTION OF ACTION ......................................135

FORCIBLE ENTRY AND UNLAWFUL DETAINER 136


DEFINITIONS AND DISTINCTION ...............................135
DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION
REINVINDICATORIA .............................................. 136
HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA
AND ACCION REINVINDICATORIA ............................. 136
WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST
WHOM THE ACTION MAY BE MAINTAINED ................... 136
PLEADINGS ALLOWED ........................................... 137
ACTION ON THE COMPLAINT ................................... 137
WHEN DEMAND IS NECESSARY ................................ 137

CONTEMPT ..................................................... 141


KINDS OF CONTEMPT ............................................ 141
PURPOSE AND NATURE OF EACH ............................. 141
REMEDY AGAINST DIRECT CONTEMPT; PENALTY ......... 142
REMEDY AGAINST INDIRECT CONTEMPT;
PENALTY (ANNEX G) ............................................. 142
HOW CONTEMPT PROCEEDINGS ARE COMMENCED ...... 142
ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT ... 142
WHEN IMPRISONMENT SHALL BE IMPOSED ................ 143
CONTEMPT AGAINST QUASI-JUDICIAL BODIES ............ 143
ANNEX A .........................................................144
ANNEX B ......................................................... 145
ANNEX C ......................................................... 146
ANNEX D .........................................................148
ANNEX E ......................................................... 149
ANNEX F .........................................................150
ANNEX G ......................................................... 151
CRIMINAL PROCEDURE

General Matters ................ 153


DISTINGUISH JURISDICTION OVER SUBJECT
MATTER FROM JURISDICTION OVER PERSON OF
THE ACCUSED ................................................. 153
JURISDICTION OVER SUBJECT MATTER...................... 153
JURISDICTION OVER THE PERSON OF THE ACCUSED .... 153
REQUISITES FOR EXERCISE OF CRIMINAL
JURISDICTION ................................................ 153
JURISDICTION OF CRIMINAL COURTS ............ 153
CRIMINAL JURISDICTION OF COURTS ........................ 153
MILITARY COURTS ............................................... 155

Prosecution of Offenses .. 155

CRIMINAL ACTIONS, HOW INSTITUTED ......... 155


IN GENERAL ....................................................... 155
INSTITUTION AND COMMENCEMENT OF ACTIONS ....... 155
EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE
PRESCRIPTIVE PERIOD ......................................... 155
WHO MAY FILE THEM, CRIMES THAT CANNOT BE
PROSECUTED DE OFFICIO ............................. 155
CASES THAT CANNOT BE PROSECUTED DE OFICIO ....... 155
WHO MAY FILE A COMPLAINT? ............................... 155

EFFECT OF ..................................................... 155


DEATH OF OFFENDED PARTY ................................. 155
DESISTANCE BY OFFENDED PARTY .......................... 155
PARDON BY OFFENDED PARTY ............................... 155
CRIMINAL ACTIONS, WHEN ENJOINED ......... 156
CONTROL OF PROSECUTION ......................... 156
EXTENT OF THE PROSECUTORS CONTROL .. 156
PRIOR TO THE FILING OF THE CASE ......................... 156
AFTER A CASE IS FILED ......................................... 156
LIMITATIONS OF CONTROL BY THE COURT ................ 156
EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN
THE TRIAL .......................................................... 157

SUFFICIENCY OF COMPLAINT
OR INFORMATION .......................................... 157
COMPLAINT DEFINED ............................................ 157
INFORMATION DEFINED ........................................ 157
FORM & SUBSTANCE ............................................ 157
DESIGNATION OF OFFENSE ............................ 157
CAUSE OF THE ACCUSATION .......................... 157
WHAT TO ALLEGE ................................................. 157
DUPLICITY OF THE OFFENSE; EXCEPTION .... 158
DUPLICITY OF OFFENSE ........................................ 158
SEVERAL MODES OF COMMITTING OFFENSE NOT
DUPLICITOUS ..................................................... 158

AMENDMENT OR SUBSTITUTION OF COMPLAINT


OR INFORMATION ........................................ 158
AMENDMENTS IN FORM AND
SUBSTANCE BEFORE PLEA .................................... 158
AMENDMENTS MADE AFTER PLEA
AND DURING TRIAL ............................................. 158

CIVIL ACTION IS SUSPENDED .........................160


EFFECT OF THE DEATH OF ACCUSED OR CONVICT ON CIVIL
ACTION .............................................................160
PREJUDICIAL QUESTION ................................ 161
EFFECT ............................................................. 161
ELEMENTS OF PREJUDICIAL QUESTION ..................... 161
WHERE TO FILE PETITION FOR SUSPENSION IS FILED .. 161
RULE ON FILING FEES IN CIVIL ACTION DEEMED
INSTITUTED WITH THE CRIMINAL ACTION ..... 161
FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN
CRIMINAL ACTION ................................................

161

Preliminary Investigation .. 161


NATURE OF RIGHT ......................................... 161
PRELIMINARY INVESTIGATION, DEFINED .................. 161
NATURE OF THE RIGHT TO
PRELIMINARY INVESTIGATION ................................ 161
RIGHT TO PRELIMINARY INVESTIGATION .................. 162
INSTANCES WHEREIN
THE RIGHT TO PI IS DEEMED WAIVED: ...................... 162
INSTANCES WHEREIN
THE RIGHT TO PI IS NOT DEEMED WAIVED ............... 162

PURPOSES OF
PRELIMINARY INVESTIGATION ...................... 162
SCOPE OF PI .................................................... 162
WHO MAY CONDUCT DETERMINATION OF
EXISTENCE OF PROBABLE CAUSE .................. 162
PROCEDURE FOR PRELIMINARY INVESTIGATION ........ 163
RESOLUTION OF
INVESTIGATING PROSECUTOR ....................... 163
REVIEW ............................................................. 163
REMEDY OF AN AGGRIEVED PARTY AGAINST THE
RESOLUTION OF THE DOJ SECRETARY ..................... 164

VENUE OF CRIMINAL ACTIONS ...................... 159


INTERVENTION OF OFFENDED PARTY ........... 159

Prosecution of
Civil Action ........................ 160
RULE ON IMPLIED INSTITUTION OF CIVIL ACTION
WITH CRIMINAL ACTION ................................ 160
HOW INSTITUTED ................................................ 160
WHEN CIVIL ACTION MAY PROCEED
INDEPENDENTLY ........................................... 160
SEPARATE ACTION FILED BY THE ACCUSED ............... 160
WHEN SEPARATE

WHEN WARRANT OF ARREST MAY ISSUE ...... 164


CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION .............................................. 164
CASES NOT REQUIRING A PRELIMINARY INVESTIGATION
NOR COVERED BY RULE ON SUMMARY PROCEDURE ... 164

REMEDIES OF ACCUSED IF THERE WAS NO


PRELIMINARY INVESTIGATION ...................... 164
EFFECT OF DENIAL OF RIGHT TO PRELIMINARY
INVESTIGATION ................................................... 164
IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED 165

INQUEST ......................................................... 165


DEFINITION ........................................................ 165

PROCEDURE FOR INQUEST PROCEEDINGS

................ 165

Arrest ................................. 166


DEFINITION ................................................... 166
IMMUNITY FROM ARREST ..................................... 166
ARREST, HOW MADE ..................................... 166
MODES OF EFFECTING ARREST .............................. 166
NO UNNECESSARY VIOLENCE ................................ 166
TIME TO MAKE ARREST ......................................... 166
ARREST WITHOUT WARRANT, WHEN LAWFUL 166
RULES ON ILLEGALITY OF ARREST ........................... 167
METHOD OF ARREST ...................................... 167
BY OFFICER WITH WARRANT .................................. 167
BY OFFICER WITHOUT WARRANT ............................ 168
BY PRIVATE PERSON ........................................... 168
REQUISITES OF A
VALID WARRANT OF ARREST ........................ 168
ESSENTIAL REQUISITES OF A VALID ARREST WARRANT 168
INSTANCES WHEN JUDGE ISSUES
WARRANT OF ARREST ......................................... 168

DETERMINATION OF PROBABLE CAUSE FOR


ISSUANCE OF WARRANT OF ARREST ............ 169
DISTINGUISH PROBABLE CAUSE OF FISCAL
FROM THAT OF A JUDGE ................................ 169

Bail ..................................... 169


NATURE ......................................................... 169
DEFINITION ........................................................ 169
PURPOSES ........................................................ 169
AS REGARDS THE REQUIREMENT OF CUSTODY .......... 169
WHEN A MATTER OF RIGHT; EXCEPTIONS .... 169
BAIL AS A MATTER OF RIGHT ................................. 169
WHEN BAIL NOT AVAILABLE .................................. 169
WHEN A MATTER OF DISCRETION ...................170
WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL
BE DENIED ..........................................................170

HEARING OF APPLICATION FOR


BAIL IN CAPITAL OFFENSES ...........................170
CONVICTION .......................................................170
PROSECUTION HAS BURDEN OF PROOF ....................170
REGARDING MINORS CHARGED
WITH A CAPITAL OFFENSE ......................................170
DUTY OF JUDGE TO CONDUCT HEARING .................... 171
WHERE THE APPLICATION IS FILED .......................... 171

GUIDELINES IN FIXING
AMOUNT OF BAIL .................................................. 171

BAIL WHEN NOT REQUIRED ............................. 171


INCREASE OR REDUCTION OF BAIL .......................... 172
INCREASED BAIL ................................................. 172
REDUCED BAIL .................................................... 172
FORFEITURE AND CANCELLATION OF BAIL ... 172
FORFEITURE OF BAIL ............................................ 172
CANCELLATION OF BAIL ........................................ 172
APPLICATION NOT A BAR TO OBJECTIONS IN
ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION ...................... 172
HOLD DEPARTURE ORDER & BUREAU OF
IMMIGRATION WATCHLIST ............................ 172

Rights of the Accused ....... 173


RIGHTS OF ACCUSED AT THE TRIAL ................ 173
TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE DOUBT .................... 173
TO BE INFORMED OF THE NATURE AND CAUSE OF
ACCUSATION AGAINST HIM .................................... 174
TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL
AT EVERY STAGE OF THE PROCEEDINGS .................... 174
TO TESTIFY AS WITNESS IN HIS BEHALF .................... 174
RIGHT AGAINST SELF-INCRIMINATION ..................... 174
RIGHT TO CONFRONTATION ................................... 175
RIGHT TO COMPULSORY PROCESS ........................... 175
RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ..... 175
RIGHT TO APPEAL ................................................ 175

RIGHTS OF PERSONS UNDER


CUSTODIAL INVESTIGATION ........................... 175
TO BE ASSISTED BY COUNSEL AT ALL TIMES .............. 176
TO REMAIN SILENT .............................................. 176
TO BE INFORMED, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT
AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,
PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL
TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION ................................................... 176
TO BE ALLOWED VISITS BY OR CONFERENCES WITH .... 176
CONSEQUENCES OF VIOLATION OF
CUSTODIAL RIGHTS .............................................. 176

Arraignment and Plea ...... 176


ARRAIGNMENT AND PLEA, HOW MADE ........ 176
DEFINITION ........................................................ 176
DUTY OF THE COURT BEFORE ARRAIGNMENT ............ 177

BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY


AVAIL OF ANY OF THE FOLLOWING: .......................... 177
HOW ARRAIGNMENT MADE .................................... 177
SPECIFIC RULES ON ARRAIGNMENT ......................... 178

WHEN SHOULD PLEA OF NOT GUILTY BE


ENTERED ........................................................ 178

HAS BEEN EXTINGUISHED ...................................... 182


CONTAINS AVERMENTS WHICH, IF TRUE, WOULD
CONSTITUTE A LEGAL EXCUSE OR JUSTIFICATION ....... 182

DISTINGUISH FROM
DEMURRER TO EVIDENCE .............................. 182

INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED


FOR THE ACCUSED ............................................... 178

EFFECTS OF SUSTAINING THE MOTION TO


QUASH ............................................................ 183

WHEN ACCUSED MAY ENTER A PLEA OF GUILTY


TO A LESSER OFFENSE ................................... 179
PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT .. 179

EXCEPTION TO THE RULE THAT SUSTAINING THE


MOTION IS NOT A BAR TO ANOTHER
PROSECUTION ................................................ 183

PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT


BEFORE TRIAL .................................................... 179
PLEA TO A LESSER OFFENSE
AFTER TRIAL HAS BEGUN .................................... 179

ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE,


WHAT THE COURT SHOULD DO ....................... 179
DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A
CAPITAL OFFENSE ................................................ 179

SEARCHING INQUIRY ...................................... 179


PLEA OF GUILTY TO A CAPITAL OFFENSE ................... 179
IMPROVIDENT PLEA OF GUILTY TO A CAPITAL
OFFENSE ......................................................... 179
DEFINITION ........................................................ 179
WHEN IMPROVIDENT PLEAMAY BE WITHDRAWN ........ 179
GROUNDS FOR SUSPENSION
OF ARRAIGNMENT .......................................... 179
UNSOUND MENTAL CONDITION OF THE ACCUSED AT THE
TIME OF THE ARRAIGNMENT .................................. 179
PREJUDICIAL QUESTION EXISTS ............................. 180
PENDING PETITION FOR REVIEW OF THE RESOLUTION OF
THE PROSECUTOR WITH THE DOJ OR OFFICE OF THE
PRESIDENT. ...................................................... 180
PENDING MOTION TO QUASH ................................ 180

Motion to Quash ............... 180


GROUNDS ...................................................... 180
FACTS CHARGED DO NOT CONSTITUTE
AN OFFENSE ...................................................... 180
COURT HAS NO JURISDICTION OVER
THE OFFENSE CHARGED ........................................ 181
COURT HAS NO JURISDICTION OVER
THE PERSON OF THE ACCUSED ................................ 181
OFFICER WHO FILED INFORMATION HAD
NO AUTHORITY TO DO SO ...................................... 181
COMPLAINT/INFORMATION DOES NOT CONFORM
SUBSTANTIALLY TO THE PRESCRIBED FORM .............. 181
MORE THAN ONE OFFENSE IS CHARGED ................... 182
CRIMINAL ACTION OR LIABILITY

DOUBLE JEOPARDY ........................................ 183


RULE OF DOUBLE JEOPARDY .................................. 183
KINDS OF DOUBLE JEOPARDY ................................. 183
SAME OFFENSE ................................................... 183
SAME ACT .......................................................... 184
REQUISITES TO SUCCESSFULLY
INVOKE DOUBLE JEOPARDY ................................... 184
REQUISITES FOR FIRST JEOPARDY TO ATTACH ........... 184
WITHOUT EXPRESS CONSENT .............................184
DISMISSAL = ACQUITTAL ....................................... 184
DISMISSAL VS. ACQUITTAL .................................... 184

PROVISIONAL DISMISSAL ...............................184


DEFINITION ........................................................ 184
WHEN DISMISSAL BECOMES PERMANENT:
TIME BAR RULE ................................................... 185
HOW TO REVIVE A CASE ........................................ 185
REQUISITE PROCEDURE ....................................... 185

Pre-trial .............................. 185


JUDICIAL
AFFIDAVIT RULE ............................................. 185

MATTERS TO BE CONSIDERED DURING PRETRIAL .............................................................. 185


COVERAGE .......................................................... 185
PERIOD .............................................................. 185
THINGS CONSIDERED DURING PRE-TRIAL / PURPOSES 186
ROLE OF THE JUDGE ............................................. 186
STIPULATION OF FACTS ........................................ 186
MARKING FOR IDENTIFICATION OF THE EVIDENCE OF
PARTIES ............................................................ 186

WHAT THE COURT SHOULD DO WHEN


PROSECUTION AND OFFENDED PARTY AGREE
TO THE PLEA OFFERED BY THE ACCUSED ..... 186
PLEA BARGAINING ............................................... 186
EFFECT WHEN THE PROSECUTION AND THE OFFENDED
PARTY AGREE TO THE PLEA OFFERED BY THE ACCUSED 186

PRE-TRIAL AGREEMENT ................................ 186


FORM ................................................................ 186

REQUIRED FORM OF PRE-TRIAL AGREEMENT ........... 186


EFFECT ............................................................. 186

RIGHT OF THE ACCUSED TO PRESENT EVIDENCE AFTER


DEMURRER IS DENIED ..........................................190

NON-APPEARANCE DURING PRE-TRIAL ......... 187

Judgment .......................... 190

PRE-TRIAL ORDER .......................................... 187


ISSUANCE .......................................................... 187
CONTENTS ......................................................... 187
EFFECT .............................................................. 187

REQUISITES OF A JUDGMENT ........................190


FORM ...............................................................190

REFERRAL OF SOME CASES FOR COURT


ANNEXED MEDIATION AND JUDICIAL DIPUTE
RESOLUTION .................................................. 187

CONTENTS OF JUDGMENT .............................190


CONVICTION ......................................................190
ACQUITTAL ........................................................ 192

A.M. NO. 03-1-09-SC RE: PROPOSED RULE ON


GUIDELINES TO BE OBSERVED BY TRIAL COURT
JUDGES AND CLERKS OF COURT IN THE
CONDUCT OF PRE- TRIAL AND USE OF
DEPOSITION-DISCOVERY MEASURES
RESOLUTION .................................................. 187

PROMULGATION OF JUDGMENT; INSTANCES OF


PROMULGATION OF JUDGMENT IN ABSENTIA 192
PROMULGATION ................................................. 192
NOTICE FOR PROMULGATION ................................. 192

Trial .................................... 187


INSTANCES WHEN PRESENCE OF ACCUSED IS
REQUIRED BY LAW ......................................... 187
PRESENCE IS MANDATORY ..................................... 187
REQUISITES BEFORE TRIAL CAN BE SUSPENDED
ON ACCOUNT OF ABSENCE OF WITNESS ....... 188
ABSENCE OR UNAVAILABILITY OF
AN ESSENTIAL WITNESS ....................................... 188
CONDITIONAL EXAMINATION ................................ 188

TRIAL IN ABSENTIA ........................................ 188


REQUISITES ....................................................... 188
REMEDY WHEN ACCUSED IS NOT BROUGHT TO
TRIAL WITHIN THE PRESCRIBED PERIOD ...... 188
EFFECT OF DELAY ............................................... 188
REQUISITES FOR DISCHARGE OF ACCUSED TO
BECOME A STATE WITNESS............................ 188
DISCHARGE OF A CO-ACCUSED .............................. 188
REQUISITES ...................................................... 189
EFFECTS OF DISCHARGE OF
ACCUSED AS STATE WITNESS ....................... 189
EFFECT OF DISCHARGE ......................................... 189
DEMURRER TO EVIDENCE .............................. 189
DEFINITION ....................................................... 189
HOW INITIATED .................................................. 189
MOTION FOR LEAVE TO FILE DEMURRER .................. 189
EFFECT OF GRANTING DEMURRER .......................... 189
EFFECT OF DENIAL OF MOTION FOR LEAVE TO FILE
DEMURRER ....................................................... 190

JUDGE WHO PENNED THE DECISION NEED NOT BE THE ONE


WHO HEARD THE CASE .........................................190

WHEN DOES JUDGMENT BECOME FINAL ........ 193


JUDGMENT BECOMES FINAL ................................... 193

New trial
or Reconsideration ........... 194
GROUNDS FOR NEW TRIAL ............................ 194
GROUNDS FOR RECONSIDERATION ......................... 194
REQUISITES BEFORE A NEW TRIAL MAY BE
GRANTED ON GROUND OF NEWLY DISCOVERED
EVIDENCE ....................................................... 194
REQUISITES ........................................................ 194
EXCEPTIONS ....................................................... 194
EFFECTS OF GRANTING A NEW TRIAL OR
RECONSIDERATION ........................................ 194
IN ALL CASES ...................................................... 194
REMEDY AGAINST GAD IN GRANTING MNT/MFR ........ 195
APPLICATION OF NEYPES DOCTRINE IN
CRIMINAL CASES ............................................ 195
FRESH PERIOD TO APPEAL
AFTER DENIAL OF MNT/MR

................................... 195

Appeal .............................. 195


EFFECT OF AN APPEAL ................................... 195
WHERE TO APPEAL ............................................... 195
HOW APPEAL TAKEN ...................................... 195
WHO MAY APPEAL ............................................... 195
PROCEDURE IN THE CA ......................................... 196
PROMPT DISPOSITION OF APPEAL ........................... 197
REVERSAL / MODIFICATION OF JUDGMENT ON APPEAL 197
SCOPE OF CAS JUDGMENT .................................... 197
CAS POWER TO RECEIVE EVIDENCE ......................... 198

QUORUM IN THE CA ............................................. 198


CERTIFICATION OR APPEAL OF CASES TO THE SC ....... 198
JUDGMENT TRANSMITTED AND FILED IN TC .............. 198
MNT DURING THE PENDENCY OF APPEAL IN THE CA ... 198
MFR OF CA JUDGMENT ......................................... 198
APPLICABLE CIVIL PROCEDURE RULES ..................... 199
PROCEDURE IN THE SC ......................................... 199

EFFECT OF APPEAL BY ANY OF \SEVERAL


ACCUSED ...................................................... 200
GROUNDS FOR DISMISSAL OF APPEAL ........ 200
WHEN APPEAL BY THE PEOPLE WILL NOT LIE ........... 200

Search and Seizure .......... 201


NATURE OF SEARCH WARRANT .................... 201
DEFINITION ....................................................... 201
NATURE OF A SEARCH WARRANT ........................... 201
BASIS: CONSTITUTIONAL SAFEGUARD AGAINST
UNREASONABLE SEARCH AND SEIZURES ................. 201
CONSTITUTIONAL PROTECTION IS AGAINST PUBLIC
OFFICERS ACTS, NOT PRIVATE PERSONS ................. 201

DISTINGUISH FROM
WARRANT OF ARREST .................................. 201
APPLICATION FOR SEARCH WARRANT, WHERE
FILED ............................................................. 202
APPLICATION ..................................................... 202
ISSUANCE AND FORM OF SEARCH WARRANT ............ 203
VALIDITY OF SEARCH WARRANT ............................. 203
SERVICE OF SEARCH WARRANT ............................. 203
POST-SERVICE ................................................... 203
PROBABLE CAUSE .........................................204
WARRANTS GENERALLY
ISSUED UPON PROBABLE CAUSE ............................ 204
PROBABLE CAUSE JUSTIFYING WARRANTLESS ARREST AND
WARRANTLESS SEARCH ....................................... 204

PERSONAL EXAMINATION BY JUDGE OF THE


APPLICANT AND WITNESSES ........................204
EXAMINATION MUST BE PERSONALLY CONDUCTED BY THE
JUDGE; DETERMINED BY JUDGE HIMSELF ................. 204

PARTICULARITY OF PLACE TO BE SEARCHED


AND THINGS TO BE SEIZED ............................ 205
PARTICULARITY OF PLACE
TO BE SEARCHED ........................................... 205
PARTICULARITY OF THINGS TO BE SEIZED ................ 205
PERSONAL PROPERTY TO BE SEIZED ............ 205
WHAT MAY BE SEIZED ......................................... 205
RULES ON DNA EVIDENCE A.M. NO. 06-11-5-SC ....... 205

EXCEPTIONS TO SEARCH WARRANT


REQUIREMENT .............................................. 205
SEARCH INCIDENTAL TO LAWFUL ARREST ................ 205
CONSENTED SEARCH ........................................... 206
SEARCH OF MOVING VEHICLE ................................ 206
CHECK POINTS; BODY CHECKS IN AIRPORT ............... 206
PLAIN VIEW SITUATION ........................................ 207
STOP AND FRISK SITUATION ................................. 207
ENFORCEMENT OF CUSTOM LAWS .......................... 207
OTHER EXCEPTIONS ............................................ 207
REMEDIES FROM UNLAWFUL SEARCH AND
SEIZURE ........................................................ 208
WHO MAY AVAIL OF REMEDIES .............................. 208
REMEDIES ......................................................... 208
CRIMINAL LIABILITY ............................................ 209
CIVIL LIABILITIES ................................................ 209

Provisional Remedies ...... 209

NATURE ......................................................... 209


KINDS OF PROVISIONAL REMEDIES .............. 209
PRELIMINARY ATTACHMENT .................................. 210
EVIDENCE

General Principles of
Evidence ............................ 212
CONCEPT OF EVIDENCE .................................. 212
SCOPE OF THE RULES OF EVIDENCE .............. 212
APPLICABILITY..................................................... 212
EVIDENCE IN CIVIL CASES VS.
EVIDENCE IN CRIMINAL CASES ...................... 212
PROOF VS. EVIDENCE ..................................... 212
FACTUM PROBANS VS.
FACTUM PROBANDUM ................................... 212
CLASSIFICATION OF EVIDENCE ................................ 212
ADMISSIBILITY OF EVIDENCE .......................... 213
REQUISITES FOR ADMISSIBILITY OF EVIDENCE ............. 213
WHEN DETERMINED ............................................. 213
RELEVANCE OF EVIDENCE & COLLATERAL MATTERS .... 213
DOCTRINES OF ADMISSIBILITY ................................ 213
BURDEN OF PROOF AND
BURDEN OF EVIDENCE .................................... 214
WHERE BURDEN OF PROOF IS FIXED ......................... 214
EQUIPOISE RULE/EQUIPONDERANCE DOCTRINE .......... 214

PRESUMPTIONS ............................................ 214


LIBERAL CONSTRUCTION OF THE RULES OF
EVIDENCE ........................................................215
QUANTUM OF EVIDENCE (WEIGHT AND
SUFFICIENCY OF EVIDENCE) ............................215
PROOF BEYOND REASONABLE DOUBT .......................215
PREPONDERANCE OF EVIDENCE ..............................215
SUBSTANTIAL EVIDENCE .......................................215
CLEAR AND CONVINCING EVIDENCE ..........................215

IN RELATION TO DRUG CASES ................................. 220


PURPOSE OF ESTABLISHING CHAIN OF CUSTODY ....... 220

RULE ON DNA EVIDENCE ............................... 220


MEANING OF DNA ............................................... 220
APPLICATION FOR DNA TESTING ORDER ................... 220
POST-CONVICTION TESTING ................................... 221
ASSESSMENT AND PROBATIVE VALUE OF
DNA EVIDENCE AND ADMISSIBILITY .......................... 221
RULES ON EVALUATION OF RELIABILITY OF THE DNA
TESTING METHODOLOGY ....................................... 221

Judicial Notice and


Judicial Admissions .......... 215

Documentary Evidence .... 221

WHAT NEED NOT BE PROVED .........................215


JUDICIAL NOTICE .................................................215

REQUISITES FOR ADMISSIBILITY .................. 222

MATTERS OF JUDICIAL NOTICE ........................215


MANDATORY .......................................................215
DISCRETIONARY ...................................................216
REQUISITES .........................................................216
JUDICIAL ADMISSIONS ...................................216
WHERE JUDICIAL ADMISSIONS MAY BE MADE .............216
HOW JUDICIAL ADMISSIONS MAY BE OBTAINED ............216
EFFECT OF JUDICIAL ADMISSIONS ............................216
HOW JUDICIAL ADMISSIONS MAY BE CONTRADICTED.....216
CONCLUSIVE PRESUMPTIONS ..................................216
JUDICIAL NOTICE OF FOREIGN LAWS, LAW OF NATIONS AND
MUNICIPAL ORDINANCES ..................................... 218
FOREIGN LAWS ................................................... 218
LAW OF NATIONS ................................................ 219
MUNICIPAL ORDINANCES....................................... 219

Object (Real) Evidence ..... 219


NATURE OF OBJECT EVIDENCE

............................... 219

REQUISITES FOR ADMISSIBILITY ................... 219


RELEVANT ......................................................... 219
COMPETENT ...................................................... 219

MEANING OF DOCUMENTARY EVIDENCE ....... 221

BEST EVIDENCE RULE..................................... 222


MEANING OF THE RULE ......................................... 222
APPLICABILITY.................................................... 222
MEANING OF ORIGINAL DOCUMENT...................... 222
REQUISITES FOR INTRODUCTION OF SECONDARY EVIDENCE
(EXCEPTIONS TO BER) ......................................... 222

RULES ON ELECTRONIC EVIDENCE ................ 222


APPLICABILITY .................................................... 222
MEANING OF ELECTRONIC DEVICE; ELECTRONIC DATA
MESSAGE .......................................................... 222
METHOD OF PROOF .............................................. 222
AUTHENTICATION OF ELECTRONIC DOCUMENTS &
ELECTRONIC SIGNATURES..................................... 223
ELECTRONIC DOCUMENTS & THE HEARSAY RULE ...... 224
AUDIO, PHOTOGRAPHIC, VIDEO &
EPHEMERAL EVIDENCE ......................................... 224
PAROL EVIDENCE .......................................... 224
MEANING OF PAROL EVIDENCE .............................. 224
APPLICATION OF THE PAROL EVIDENCE RULE ........... 224
WHEN PAROL EVIDENCE CAN BE INTRODUCED .......... 224
DISTINCTIONS BETWEEN BEST EVIDENCE RULE & PAROL
EVIDENCE RULE .................................................. 224

CATEGORIES OF OBJECT EVIDENCE .........................


UNIQUE OBJECTS ................................................
OBJECTS MADE UNIQUE.........................................
NON-UNIQUE OBJECTS .........................................

AUTHENTICATION AND PROOF


OF DOCUMENTS ............................................ 225
MEANING OF AUTHENTICATION .............................. 225
PUBLIC AND PRIVATE DOCUMENTS .......................... 225
ATTESTATION OF A COPY ...................................... 226
PROOF OF LACK OF RECORD .................................. 226
WHAT TO ESTABLISH TO IMPEACH JUDICIAL RECORD .. 226
PROOF OF NOTARIAL DOCUMENTS .......................... 226
ALTERATIONS IN A DOCUMENT ............................... 226

VIEW OF AN OBJECT OR SCENE ...................... 220


CHAIN OF CUSTODY ............................................. 220

DOCUMENTARY EVIDENCE IN AN
UNOFFICIAL LANGUAGE ........................................ 226

CHAIN OF CUSTODY ....................................... 220


MEANING OF CHAIN OF CUSTODY ............................ 220

Testimonial Evidence ....... 227

219
219
219
219
DEMONSTRATIVE EVIDENCE ......................... 219
EPHEMERAL ELECTRONIC COMMUNICATIONS ........... 220

WITH RESPECT TO A WITNESS ....................... 227


QUALIFICATIONS OF A WITNESS .................... 227
WHEN DETERMINED ............................................. 227
IN CASE A PERSON IS CONVICTED OF A CRIME ............. 227
COMPETENCY VS. CREDIBILITY
OF A WITNESS ................................................ 227
DISQUALIFICATIONS OF A WITNESS ............. 227
BY REASON OF MENTAL INCAPACITY OR IMMATURITY . 227
BY REASON OF MARRIAGE ..................................... 227
BY REASON OF DEATH OR INSANITY OF
ADVERSE PARTY.................................................. 228
PRIVILEGED COMMUNICATIONS ............................. 228

EXAMINATION OF WITNESSES ....................... 230


RIGHTS AND OBLIGATIONS OF A WITNESS ................. 230

Offer and Objection ......... 240


OFFER OF EVIDENCE ..................................... 240
CONCEPT .......................................................... 240
AS DISTINGUISHED FROM IDENTIFICATION OF
DOCUMENTARY EVIDENCE ..................................... 241
RATIONALE WHY FORMER OFFER IS NEEDED .............. 241
WHEN OFFER IS NOT REQUIRED .............................. 241

WHEN TO MAKE AN OFFER ............................ 241


WHEN TO MAKE AN OFFER ............................. 241
OBJECTION ...................................................... 241
CONCEPT............................................................ 241
PURPOSES OF OBJECTION ...................................... 241
FORMAL VS. SUBSTANTIVE OBJECTIONS................... 242

ORDER IN THE EXAMINATION OF


AN INDIVIDUAL WITNESS ....................................... 230
LEADING AND MISLEADING QUESTIONS .................... 231
METHODS OF IMPEACHMENT OF ADVERSE PARTYS
WITNESS ............................................................ 231
JUDICIAL AFFIDAVIT RULE ...................................... 232

REPETITION OF AN OBJECTION ...................... 242

WITH RESPECT TO THE TESTIMONY ............... 233

TENDER OF EXCLUDED EVIDENCE ................. 242


HOW TO TENDER EVIDENCE ................................... 242
RATIONALE ........................................................ 242
2 METHODS OF MAKING THE TENDER ...................... 242
ERRONEOUS WAY OF MAKING TENDER .................... 242

ADMISSIONS & CONFESSIONS ....................... 233


ADMISSIONS OF A PARTY ....................................... 233
CONFESSIONS .................................................... 234
RES INTER ALIOS ACTA RULE .................................. 234
HEARSAY RULE ............................................. 235
MEANING OF HEARSAY ......................................... 235
REASON FOR EXCLUSION OF HEARSAY EVIDENCE ....... 235
GENERAL RULE ON HEARSAY ................................. 235
EXCEPTIONS ....................................................... 235
OPINION RULE ............................................... 239
OPINION OF EXPERT WITNESS ................................ 239
OPINION OF ORDINARY WITNESS ............................ 239
CHARACTER EVIDENCE .................................. 239
CRIMINAL CASES ................................................. 239
CIVIL CASES ........................................................ 239
RULE ON EXAMINATION OF A
CHILD WITNESS .............................................. 239
MEANING OF CHILD WITNESS .............................. 239
APPLICABILITY OF THE RULE ................................. 239
COMPETENCY OF A CHILD WITNESS ......................... 239
EXAMINATION OF A CHILD WITNESS ......................... 239
LIVE-LINK TV TESTIMONY OF A CHILD WITNESS .......... 240
VIDEOTAPED DEPOSITION OF A CHILD WITNESS .......... 240
HEARSAY EXCEPTION IN CHILD ABUSE CASES ............ 240
SEXUAL ABUSE SHIELD RULE ................................. 240
PROTECTIVE ORDERS ........................................... 240

RULING .......................................................... 242


STRIKING OUT OF AN ANSWER...................... 242
MOTION TO STRIKE .............................................. 242

SPECIAL PROCEEDINGS

Preliminary Matters ......... 244


SPECIAL PROCEEDINGS ................................ 244
APPLICABLE RULES ....................................... 244
SUBJECT MATTER AND APPLICABILITY OF
GENERAL RULES ........................................... 244
DIFFERENCE BETWEEN ACTION AND SPECIAL
PROCEEDING ................................................. 244
VENUES AND JURISDICTIONS FOR SPECIAL
PROCEEDINGS ............................................... 244
MODES OF SETTLEMENT
OF ESTATE [HERRERA] ................................. 245

Settlement of Estate of
Deceased Persons, Venue
And Process ..................... 245
WHICH COURT HAS JURISDICTION ................ 245
JURISDICTION OF RTCS ......................................... 245
JURISDICTION OF MTCS ........................................ 245
TESTATE PROCEEDINGS TAKE PRECEDENCE OVER
INTESTATE PROCEEDINGS OF THE SAME ESTATE. ....... 246

VENUE IN JUDICIAL
SETTLEMENT OF ESTATE ............................... 246
RULE 73 RELATES TO VENUE AND
NOT TO JURISDICTION ......................................... 246
MEANING OF TERM RESIDES ............................... 246
EXTENT OF JURISDICTION
OF PROBATE COURT ...................................... 246
PROBATE COURT IS OF LIMITED JURISDICTION ........... 246
POWERS AND DUTIES OF PROBATE COURT .. 246

Summary Settlement of
Estates .............................. 246
EXTRAJUDICIAL SETTLEMENT BY AGREEMENT
BETWEEN HEIRS, WHEN ALLOWED ............... 246
REQUISITES ....................................................... 246
PROCEDURE ...................................................... 247
BOND REQUIREMENT ........................................... 247
NOT BINDING ON ANY PERSON WHO ........................ 247
VALIDITY OF ORAL PARTITION ................................ 247
VALIDITY OF COMPROMISE AGREEMENT ................... 247
NO PRECLUSION FROM INSTITUTING ADMINISTRATION
PROCEEDINGS .................................................... 247

TWO-YEAR PRESCRIPTIVE PERIOD ............... 247


PRESUMPTION OF NO DEBTS ................................. 247
AFFIDAVIT OF SELF-ADJUDICATION BY SOLE
HEIR ............................................................... 247
BOND REQUIREMENT ........................................... 247
SUMMARY SETTLEMENT OF ESTATES OF SMALL
VALUE ............................................................ 247
WHEN ALLOWED ................................................. 247
PROCEDURE ...................................................... 248
REMEDIES OF AGGRIEVED PARTIES AFTER
EXTRA-JUDICIAL SETTLEMENT OF ESTATE ... 248
CLAIM AGAINST THE BOND OR THE ESTATE WITHIN TWO
YEARS .............................................................. 248
ACTION TO ANNUL A DEED OF
EXTRAJUDICIAL PARTITION .................................... 249
NEW ACTION TO ANNUL SETTLEMENT WITHIN
REGLEMENTARY PERIOD OF TWO YEAR .................... 249
REOPENING BY INTERVENTION BEFORE RENDITION OF
JUDGMENT WITHIN THE REGLEMETARY PERIOD OF TWO
YEARS .............................................................. 249
PETITION FOR RELIEF ON THE GROUND OF FRAUD,
ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE ...... 249
RESCISSION IN CASE OF PRETERITION ...................... 249

Production and Probate of


Will .................................... 249
NATURE OF PROBATE PROCEEDING ............ 249
EFFECT OF PROBATE OF WILL ................................. 249
WHO MAY PETITION FOR PROBATE; PERSONS
ENTITLED TO NOTICE .................................... 249
PETITIONER FOR THE ALLOWANCE OF THE WILL ......... 249
MEANING OF INTEREST IN ESTATE .......................... 249
JURISDICTION, HOW ACQUIRED .............................. 250

Allowance or Disallowance of
Will .................................... 250
CONTENTS OF PETITION FOR ALLOWANCE OF
WILL .............................................................. 250
DEFECT IN PETITION ............................................ 250
GROUNDS FOR DISALLOWING A WILL .......... 250
REPROBATE; REQUISITES BEFORE WILL PROVED
OUTSIDE ALLOWED IN THE PHILIPPINES;
EFFECTS OF PROBATE ................................... 250
REPROBATE ....................................................... 250
REQUISITES FOR ALLOWANCE ..................... 250
EFFECT ............................................................. 250

Letters Testamentary and of


Administration ................. 250
WHEN AND TO WHOM LETTERS OF
ADMINISTRATION GRANTED ........................ 250
WHO ARE INCOMPETENT TO SERVE ......................... 250

ORDER OF PREFERENCE ................................ 251


ORDER OF PREFERENCE IN THE GRANT OF
ADMINISTRATION ................................................ 251
REASON FOR ORDER OF PREFERENCE ...................... 251
30-DAY PERIOD MAY BE WAIVED ............................. 251

OPPOSITION TO ISSUANCE OF LETTERS


TESTAMENTARY; SIMULTANEOUS FILING OF
PETITION FOR ADMINISTRATION .................. 251
MEANING OF INTERESTED PERSON .......................... 251
GROUNDS .......................................................... 251
CONTENTS ......................................................... 251
JURISDICTIONAL FACTS ......................................... 251
PUBLICATION AND NOTICE ..................................... 251
SIMULTANEOUS FILING OF OPPOSITION AND PETITION 252

POWERS AND DUTIES OF EXECUTORS AND


ADMINISTRATORS; RESTRICTIONS ON THE
POWERS ........................................................ 252
GENERAL POWERS AND DUTIES OF EXECUTORS AND
ADMINISTRATORS ............................................... 252
RESTRICTIONS ON POWERS OF EXECUTORS AND
ADMINISTRATORS ............................................... 252

APPOINTMENT OF
SPECIAL ADMINISTRATOR ............................ 253
WHEN APPOINTED ............................................... 253
PROCEDURE FOR APPOINTMENT ............................ 253
POWERS AND DUTIES OF SPECIAL ADMINISTRATOR .... 253
WHEN SPECIAL ADMINISTRATOR CEASES DUTIES ........ 253
GROUNDS FOR
REMOVAL OF ADMINISTRATOR .................... 253
REVOCATION OF ADMINISTRATOR ........................... 253
REMOVAL OF EXECUTOR OR ADMINISTRATOR ............ 253
EFFECT OF REMOVAL, DEATH, OR RESIGNATION ........ 254

Claims against
the Estate ......................... 254
ESTATE BURDENED WITH
LIEN OF CREDITORS ...................................... 254
PURPOSE OF PRESENTATION OF CLAIMS
AGAINST ESTATE ........................................... 254
TIME WITHIN WHICH CLAIMS SHALL BE FILED;
EXCEPTIONS .................................................. 254
STATUTE OF NON-CLAIMS ............................ 254
CLAIMS COVERED (EXCLUSIVE) .............................. 254
CONTINGENT CLAIM WHEN ALLOWED ...................... 254
IF DISPUTED ....................................................... 254
CLAIM OF EXECUTOR OR ADMINISTRATOR
AGAINST THE ESTATE .................................... 255
PROCEDURE TO FOLLOW IF THE EXECUTOR OR
ADMINISTRATOR HAS A CLAIM AGAINST THE ESTATE HE
REPRESENTS ..................................................... 255

PAYMENT OF DEBTS ...................................... 255


DEBTS PAID IN FULL IF ESTATE SUFFICIENT ............... 255
PART OF ESTATE FROM WHICH DEBT PAID WHEN PROVISION
MADE BY WILL .................................................... 255
PERSONALTY FIRST CHARGEABLE FOR DEBTS, THEN
REALTY ............................................................ 255
ESTATE TO BE RETAINED TO MEET
CONTINGENT CLAIMS .......................................... 255
PAYMENT OF CONTINGENT CLAIM ........................... 255
COURT TO FIX CONTRIBUTIVE SHARES WHERE DEVISEES,
LEGATES, OR HEIRS HAVE BEEN IN POSSESSION ........ 255
ORDER OF PAYMENT IF ESTATE IS INSOLVENT ........... 256
DIVIDENDS TO BE PAID IN PROPORTION TO CLAIMS .... 256

INSOLVENT NON-RESIDENT .................................. 256


INSOLVENT RESIDENT WITH FOREIGN CREDITORS AND
FOREIGN CLAIMS PROVEN IN ANOTHER COUNTRY ...... 256
ORDER OF PAYMENT OF DEBTS .............................. 256
APPEAL TAKEN FROM A DECISION OF THE COURT
CONCERNING THE CLAIM ...................................... 256
FROM TIME TO TIME FURTHER
ORDERS OF DISTRIBUTION ................................... 256
CREDITORS TO BE PAID IN ACCORDANCE WITH TERMS OF
ORDER ............................................................. 256
COURT SHALL ALLOW EXECUTOR OR ADMINISTRATOR A
TIME FOR DISPOSING THE ESTATE AND PAYING DEBTS AND
LEGACIES ......................................................... 256

Actions by and against


Executors
and Administrators ..........257
ACTIONS THAT MAY BE BROUGHT AGAINST
EXECUTORS AND ADMINISTRATORS ........... 257
ACTIONS WHICH MAY AND WHICH MAY NOT BE BROUGHT
AGAINST THE EXECUTOR OR ADMINISTRATOR ........... 257
ACTIONS WHICH MAY NOT BROUGHT AGAINST
ADMINISTRATORS ............................................... 257
EXECUTOR OR ADMINISTRATOR MAY BRING OR DEFEND
ACTIONS WHICH SURVIVE ..................................... 257
WHEN RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED
BY DECEASED MAY BE RECOVERED .......................... 257
DUTY OF EXECUTOR/ADMINISTRATOR ..................... 257
REQUISITES BEFORE CREDITOR MAY BRING AN ACTION FOR
RECOVERY OF PROPERTY FRAUDULENTLY CONVEYED BY
THE DECEASED ................................................... 257
ALLOWED IN TWO INSTANCES ................................ 257
EFFECT ............................................................. 258

Distribution and
Partition ............................ 258

LIQUIDATION ................................................ 258


PROJECT OF PARTITION ................................ 258
EFFECT OF FINAL DECREE OF DISTRIBUTION 258
REMEDY OF AN HEIR ENTITLED TO RESIDUE BUT
NOT GIVEN HIS SHARE .................................. 258
INSTANCES WHEN PROBATE COURT MAY ISSUE WRIT OF
EXECUTION ........................................................ 258

Trustees ............................ 259


DISTINGUISHED FROM EXECUTOR OR
ADMINISTRATOR .......................................... 259
CONDITIONS OF THE BOND ........................... 259
WHEN EXEMPT ................................................... 259
CONDITIONS ...................................................... 259

REQUISITES FOR THE REMOVAL AND


RESIGNATION OF A TRUSTEE ........................ 259

DISTINGUISH DOMESTIC ADOPTION FROM


INTER-COUNTRY ADOPTION (ANNEX A) ....... 265

GROUNDS FOR REMOVAL AND RESIGNATION OF


A TRUSTEE ..................................................... 259
GROUNDS FOR REMOVAL ...................................... 259
GROUNDS FOR RESIGNATION ................................. 259

DOMESTIC ADOPTION ACT ............................ 265


PROCEDURE ...................................................... 265
EFFECTS OF ADOPTION ......................................... 265
INSTANCES WHEN ADOPTION MAY BE RESCINDED ...... 266
RESCISSION OF ADOPTION OF THE ADOPTEE ............. 266
INTER-COUNTRY ADOPTION ......................... 266
WHEN ALLOWED ................................................. 266
INTER-COUNTRY ADOPTION AS THE LAST RESORT; BEST
INTEREST OF THE CHILD AS OBJECTIVE ................... 266
FUNCTIONS OF THE RTC ........................................ 266

EXTENT OF AUTHORITY OF TRUSTEE ............ 259


NATURE OF POSSESSION ...................................... 259
TERRITORIALITY OF AUTHORITY OF TRUSTEE ............. 259

Escheat ............................. 260


WHEN TO FILE ................................................ 260
REQUISITES FOR FILING OF PETITION ........... 260
PROCEDURE ...................................................... 260
REMEDY OF RESPONDENT AGAINST PETITION;
PERIOD FOR FILING A CLAIM ......................... 260
PERIOD TO APPEAL AND CLAIM THE ESTATE .............. 260
FILED BY WHOM .................................................. 260
PERIOD FOR FILING CLAIM ..................................... 260

Guardianship .................... 261

Writ of Habeas Corpus .... 266


VITAL PURPOSES .......................................... 266
WHO MAY ISSUE THE WRIT ........................... 267
TEMPORARY RELEASE MAY CONSTITUTE
RESTRAINT -ELEMENTS ................................ 267
NATURE ......................................................... 267
WHC MAY BE USED WITH WRIT OF CERTIORARI
FOR PURPOSES OF REVIEW .......................... 267
WHC IS NOT THE PROPER REMEDY FOR THE
CORRECTION OF ERRORS OF FACT OR LAW . 267
WHC IS NOT PROPER ..................................... 268
WHC IS PROPER ............................................ 268

GUARDIAN ......................................................261
BASIS: PARENS PATRIAE ................................261
KINDS OF GUARDIANS ..........................................261

CONTENTS OF THE PETITION ........................ 268


REQUISITES OF APPLICATION ................................. 268
PROCEDURE ...................................................... 268

GUARDIANSHIP OF INCOMPETENT ................261


PROCEDURE .......................................................261

CONTENTS OF THE RETURN .......................... 268


WHEN THE RETURN CONSIDERED EVIDENCE, AND WHEN
ONLY A PLEA ...................................................... 268
DISTINGUISH PEREMPTORY WRIT FROM
PRELIMINARY CITATION ............................... 268
WHEN WRIT NOT PROPER OR APPLICABLE .. 268

GENERAL POWERS AND


DUTIES OF GUARDIANS ..................................261
REIMBURSEMENT OF REASONABLE EXPENSES .......... 262
PAYMENT OF COMPENSATION ................................ 262
EMBEZZLEMENT, CONCEALMENT, OR CONVEYANCE OF
WARDS PROPERTIES ........................................... 262
ORDER TO SHOW CAUSE ....................................... 262
ORDER FOR SALE OR ENCUMBRANCE ....................... 262
INVESTMENT OF PROCEEDS AND MANAGEMENT OF
PROPERTY ......................................................... 262

CONDITIONS OF THE BOND OF THE GUARDIAN


....................................................................... 262
RULE ON GUARDIANSHIP OVER MINORS ...... 263
PETITION FOR APPOINTMENT OF GUARDIAN .............. 263
THE GUARDIAN ................................................... 264
REMOVAL, RESIGNATION, AND TERMINATION OF
GUARDIANSHIP .................................................. 264

Adoption ........................... 265

WHEN DISCHARGE NOT AUTHORIZED .......... 269


DISCHARGE FROM CUSTODY WILL NOT BE ALLOWED IF 269
DISTINGUISHED FROM WRIT OF AMPARO AND
HABEAS DATA (ANNEX B) ............................... 269
CUSTODY OF MINORS AND WRIT OF HABEAS
CORPUS IN RELATION TO CUSTODY OF MINORS
(A.M. NO. 03-04-04-SC) ................................. 269
APPLICABILITY ................................................... 269
PETITION FOR RIGHTFUL CUSTODY .......................... 269
WHERE TO FILE ................................................... 269
CONTENTS ........................................................ 269
ANSWER TO THE PETITION .................................... 269
MANDATORY PRE-TRIAL ....................................... 270
INTERIM RELIEFS ................................................ 270
JUDGMENT ......................................................... 271

WRIT OF HABEAS CORPUS IN RELATION TO


CUSTODY OF MINORS ..................................... 271

Writ of Amparo ...................271


COVERAGE ...................................................... 271
WRIT OF AMPARO ................................................ 271
DISTINGUISH FROM WRIT OF HABEAS CORPUS
AND HABEAS DATA (ANNEX C) ...................... 272
DISTINGUISH WRIT OF AMPARO FROM SEARCH
WARRANT ..................................................... 272
WHO MAY FILE ............................................... 272
RATIO FOR PREFERENCE ....................................... 272
WHERE TO FILE ................................................... 272
CONTENTS ......................................................... 272
CONTENTS OF RETURN ................................. 273
CONTENTS ......................................................... 273
TO WHOM RETURNABLE ....................................... 273
OMNIBUS WAIVER RULE ............................... 273
DEFENSES NOT PLEADED DEEMED WAIVED. .............. 273
EFFECT OF FAILURE TO FILE A RETURN ........ 273
PROCEDURE FOR HEARING ON THE WRIT .... 273
SUMMARY HEARING ............................................ 273
PROHIBITED PLEADINGS AND MOTIONS .................... 273
JUDGMENT ........................................................ 273
ARCHIVING AND REVIVAL OF CASES ......................... 273
INSTITUTION OF SEPARATE ACTIONS ........... 273
EFFECT OF FILING OF A CRIMINAL ACTION ... 273
CONSOLIDATION ........................................... 274
INTERIM RELIEFS AVAILABLE TO THE
PETITIONER ................................................... 274
TEMPORARY PROTECTION ORDER ........................... 274
INSPECTION ORDER ............................................. 274
PRODUCTION ORDER ........................................... 274
WITNESS PROTECTION ORDER ............................... 275
INTERIM RELIEFS AVAILABLE TO THE
RESPONDENT ................................................ 275
REQUISITES ....................................................... 275
QUANTUM OF PROOF IN APPLICATION FOR
ISSUANCE OF WRIT:
SUBSTANTIAL EVIDENCE .............................. 275
IF RESPONDENT IS A PUBLIC OFFICIAL OR EMPLOYEE .. 275
IF RESPONDENT IS A PRIVATE INDIVIDUAL OR ENTITY . 275

Change of Name and


Cancellation or Correction of
Entries In
the Civil Registry ...............275
DIFFERENCES UNDER THE APPLICABLE RULES
(RULE 103, RULE 108, RA 9048) ..................... 275
GROUNDS FOR CHANGE OF NAME (ANNEX D) 275
JURISPRUDENCE ........................................... 275

Absentees .........................276
PURPOSE OF THE RULE ................................. 276
WHO MAY FILE; WHEN TO FILE ...................... 276
WHEN TERMINATED ..................................... 276

Cancellation or Correction of
Entries in
the Civil Registry ............... 277
ENTRIES SUBJECT TO CANCELLATION OR
CORRECTION UNDER RULE 108, IN RELATION TO
RA 9048 .......................................................... 277
SUBSTANTIAL CHANGE .......................................... 277
APPROPRIATE ADVERSARY PROCEEDING ................. 277
PROCEDURAL REQUIREMENTS OF AN ADVERSARY
PROCEEDING ...................................................... 277

Appeals in Special
Proceeding ........................ 277
JUDGMENTS AND ORDERS FOR WHICH APPEAL
MAY BE TAKEN ............................................... 277
WHEN TO APPEAL ......................................... 278
MODES OF APPEAL ....................................... 278
RULE ON ADVANCE DISTRIBUTION ............... 278
ANNEX A ........................................................ 279
ANNEX B ....................................................... 282
ANNEX C ........................................................ 283
ANNEX D ........................................................ 289

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BAR OPERATIONS COMMISSION

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CIVIL PROCEDURE

General Principles

BAR OPERATIONS COMMISSION

(c) Judicial process for enforcing rights and duties


recognized by substantive law and for justly
administering remedy and redress for a disregard
or infraction of them. [Fabian v Desierto (1998)]

CONCEPT OF REMEDIAL LAW


CONCEPT

Remedial statute or statutes:


(1) relating to remedies or modes of procedure;
(2) do not take away or create vested rights;
(3) BUT operate in furtherance of rights already
existing. [Riano citing Systems Factor Corporation
v NLRC (2000)]

SUBSTANTIVE LAW

The Rules of Court, promulgated by authority of law,


have the force and effect of law, if not in conflict with
positive law [Inchausti & Co v de Leon (1913)]. The rule
is subordinate to the statute, and in case of conflict,
the statute will prevail. [Shioji v Harvey (1922)].

RULE-MAKING POWER OF THE SUPREME COURT


(a) The Rules of Court was adopted and
promulgated by the Supreme Court pursuant to
the provisions of Sec 5(5) of Art. VIII of the
Constitution, vesting in it the power to:
(1) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice and procedure in all courts,
the admission to the practice of law, the
Integrated Bar, and legal assistance to the
underprivileged.
(b) The power to promulgate rules of pleading,
practice, and procedure is no longer shared by the
Supreme Court with Congress, more so with the
executive [Riano citing Echegaray v Secretary of
Justice (1999)]

That part of the law which creates, defines and


regulates rights concerning life, liberty, or property, or
the powers of agencies or instrumentalities for the
administration of public affairs [Bustos v Lucero
(1948)]

APPLICABILITY

The Rules of Court is applicable in ALL COURTS,


except as otherwise provided by the SC [Rule 1, Sec.
2].
It governs the procedure to be observed in civil or
criminal actions and special proceedings [Rule 1, Sec.
3]. It does not apply to the following cases: [ELCINO]
(1) Election cases,
(2) Land registration cases,
(3) Cadastral cases,
(4) Naturalization cases,
(5) Insolvency proceedings
(6) Other cases not herein provided for

LIMITATIONS ON THE RULE-MAKING POWER OF THE


SUPREME COURT

Sec 5(5) of Art. VIII of the Constitution sets forth the


limitations to the power: [SUS]
(a) that the rules shall provide a simplified and
inexpensive procedure for speedy disposition of
cases;
(b) that the rules shall be uniform for courts of the
same grade; and
(c) that the rules shall not diminish, increase or
modify substantive rights.

Except by analogy or in a suppletory character and


whenever practicable and convenient [Rule 4, Sec. 4]
PROSPECTIVITY/RETROACTIVITY

The Rules of Court are not penal statutes and cannot


be given retroactive effect [Bermejo v Barrios (1970)].
Rules of procedure may be made applicable to
actions pending and undetermined at the time of
their passage, and are deemed retroactive in that
sense and to that extent. [In the Matter to Declare in
Contempt of Court Hon. Simeon Datumanong
(2006)].

POWER OF THE SUPREME COURT TO AMEND AND SUSPEND


PROCEDURAL RULES

Power to amend remedial laws


(a) The constitutional faculty of the Court to
promulgate rules of practice and procedure
necessarily carries with it the power to overturn
judicial precedents on points of remedial law
through the amendment of the Rules of Court.
[Pinga v Heirs of Santiago (2006)].
(b) The SC has the sole prerogative to amend, repeal,
or even establish new rules for a more simplified
and inexpensive process, and the speedy
disposition of case [Neypes v CA (2005)]

SUBSTANTIVE LAW AS DISTINGUISHED FROM


REMEDIAL LAW
REMEDIAL LAW OR PROCEDURAL LAW

(a) provides a method of enforcing the rights


established by substantive law;
(b) prescribes the method of enforcing rights or
obtaining redress for their invasion. [Bustos v
Lucero (1948)]

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CIVIL PROCEDURE

Power to suspend remedial laws


(a) It is within the inherent power of the Supreme
Court to suspend its own rules in a particular case
in order to do justice [De Guia v De Guia (2001)].
(b) When the operation of rules will lead to an
injustice or if their application tends to subvert
and defeat instead of promote and enhance
justice, their suspension is justified [Republic v CA
(1978)].
(c) There is no absolute rule as to what constitutes
good and sufficient cause that will merit
suspension of the rules. The matter is
discretionary upon the Court [Republic v Imperial
Jr. (1999)].
(d) The bare invocation of "the interest of substantial
justice" is not a magic wand that will
automatically compel this Court to suspend
procedural rules [Ramos v Sps Lavendia (2008)].
(e) Procedural rules are not to be belittled or
dismissed simply because their non-observance
may have resulted in prejudice to a party's
substantive rights. Like all rules, they are required
to be followed except only for the most persuasive
of reasons when they may be relaxed to relieve a
litigant of an injustice not commensurate with the
degree of his thoughtlessness in not complying
with the procedure prescribed. [Polanco v Cruz
(2009)].

BAR OPERATIONS COMMISSION

COURT AS DISTINGUISHED FROM A JUDGE

Court

Judge

Tribunal
officially
assembled
under
authority of law

Simply an officer of such


tribunal

An
organ
of
the
government
with
a
personality separate and
distinct from judge

Person who sits in court

An office

A public officer [Riano]

The circumstances of the court are not affected by the


circumstance that would affect the judge. The
continuity of a court and the efficacy of its
proceedings are not affected by the death,
resignation, or cessation from the service of the
judge presiding over it. In other words, the judge may
resign, become incapacitated, or be disqualified to
hold office, but the court remains. The death of the
judge does not mean the death of the court [Riano
citing ABC Davao Auto Supply v. CA (1998)].
CLASSIFICATION OF PHILIPPINE COURTS

Note: Please see succeeding subsections for


discussions on a to d.
(a) Courts of law and equity
(b) Courts of Original and Appellate jurisdiction
(c) Courts of General and Special jurisdiction
(d) Constitutional and statutory courts
(e) Superior and Inferior courts
(1) Superior courts Courts which have the
power of review or supervision over another
and lower court.
(2) Inferior courts Those which, in relation to
another court, are lower in rank and subject to
review and supervision by the latter.
[Regalado]
(f) Courts of record and not of record
(1) Courts of record Those whose proceedings
are enrolled and which are bound to keep a
written record of all trials and proceedings
handled by them. [Regalado] One attribute of
a court of record is the strong presumption as
to the veracity of its records that cannot be
collaterally attacked except for fraud. All
Philippine courts, including inferior courts, are
now courts of record. [Riano]
(2) Courts not of record Courts which are not
required to keep a written record or transcript
of proceedings held therein.

NOTE: Although not laws in the technical sense of


the term, Rules of Court, promulgated by authority of
law, have the force and effect of law. [Riano citing
Shioji v Harvey (1922)]
Applicability: Prospective
The Rules of Court shall govern cases brought after
they take effect, and also all further proceedings
then pending, EXCEPT to the extent that in the
opinion of the Court their application would not be
feasible or would work injustice. [Riano citing Rule
114]
NATURE OF PHILIPPINE COURTS
MEANING OF A COURT

Definition
(a) A court is an organ of the government belonging
to the judicial department, the function of which is
the application of the laws to controversies
brought before it (and) as well as the public
administration of justice.
(b) Generally, the term describes an organ of the
government consisting of one person or of several
persons, called upon and authorized to
administer justice. It is also the place where
justice is administered. [Riano citing Blacks and
Am. Jur. and C. J. S.]

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important reasons therefor, clearly and


specifically set out in the petition. [Mangahas v.
Paredes (2007)]. The Supreme Court may
disregard the principle of hierarchy of courts if
warranted by the nature and importance of the
issues raised in the interest of speedy justice and
avoid future litigations [Riano].

COURTS OF ORIGINAL AND APPELLATE JURISDICTION

(a) Courts of original jurisdiction Those courts in


which, under the law, actions or proceedings may
be originally commenced.
(b) Courts of appellate jurisdiction Courts which
have the power to review on appeal the decisions
or orders of a lower court. [Regalado]

DOCTRINE OF NON-INTERFERENCE OR DOCTRINE OF


JUDICIAL STABILITY

COURTS OF GENERAL AND SPECIAL JURISDICTION

(a) Courts of general jurisdiction Those competent


to decide their own jurisdiction and to take
cognizance of all kinds of cases, unless otherwise
provided by the law or Rules.
(b) Courts of special or limited jurisdiction Those
which have no power to decide their own
jurisdiction and can only try cases permitted by
statute. [Regalado]

(a) The principle holds that courts of equal and


coordinate jurisdiction cannot interfere with each
others orders [Lapu-lapu Development and
Housing Corp. v. Group Management Corp.(2002)]
The principle also bars a court from reviewing or
interfering with the judgment of a co-equal court
over which it has no appellate jurisdiction or
power of review [Villamor v. Salas (1991)].
(b) The doctrine of non-interference applies with
equal force to administrative bodies. When the law
provides for an appeal from the decision of an
administrative body to the SC or CA, it means
that such body is co-equal with the RTC in terms
of rank and stature, and logically beyond the
control of the latter [Phil Sinter Corp. v. Cagayan
Electric Power (2002)].

CONSTITUTIONAL AND STATUTORY COURTS

(a) Constitutional courts Those which owe their


creation and existence to the Constitution and,
therefore cannot be legislated out of existence or
deprived by law of the jurisdiction and powers
unqualifiedly vested in them by the Constitution.
e.g. Supreme Court; Sandiganbayan is a
constitutionally-mandated court but created by
statute.
(b) Statutory courts Those created, organized and
with jurisdiction exclusively determined by law.
[Regalado]

Jurisdiction

COURTS OF LAW AND EQUITY

JURISDICTION
Jurisdiction is defined as the authority to try, hear
and decide a case [Tolentino v. Leviste (2004)].

Philippine courts are both courts of law and equity.


Hence, both legal and equitable jurisdiction is
dispensed with in the same tribunal [U.S. v.
Tamparong (1998)]

Judicial power includes the duty of the courts of


justice: [Art 8, Sec. 1, Constitution]
(a) To settle actual controversies involving rights
which are legally demandable and enforceable;
(b) To determine WON there has been a grave abuse
of discretion amounting to lack or excess of
jurisdiction on the part of any government
branch/ instrumentality.

PRINCIPLE OF JUDICIAL HIERARCHY

(a) The judicial system follows a ladderized scheme


which in essence requires that lower courts
initially decide on a case before it is considered by
a higher court. Specifically, under the judicial
policy recognizing hierarchy of courts, a higher
court will not entertain direct resort to it unless
the redress cannot be obtained in the appropriate
courts. [Riano citing Santiago v. Vasquez (1993)]
(b) The principle is an established policy necessary to
avoid inordinate demands upon the Courts time
and attention which are better devoted to those
matters within its exclusive jurisdiction, and to
preclude the further clogging of the Courts docket
[Lim v. Vianzon (2006)].
(c) When the doctrine/principle may be disregarded:
A direct recourse of the Supreme Courts original
jurisdiction to issue writs (referring to the writs of
certiorari, prohibition, or mandamus) should be
allowed only when there are special and

All courts exercise judicial power. Only the Supreme


Court is the court created by the Constitution [Art 8,
Sec. 1, Constitution]. The Sandiganbayan is a
Constitutionally mandated court, but it is created by
statute. [PD 1486]
JURISDICTION IN GENERAL
JURISDICTION OVER THE PARTIES

Note: The mode of acquisition of jurisdiction over the


plaintiff and the defendant applies both to ordinary
and special civil actions.

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How jurisdiction over the plaintiff is acquired


Jurisdiction over the plaintiff is acquired by filing of
the complaint or petition. By doing so, he submits
himself to the jurisdiction of the court [Davao Light &
Power Co., Inc. v CA (1991)].

BAR OPERATIONS COMMISSION

(e) Once attached to a court, it cannot be ousted by


subsequent statute.
Exception: The statute itself conferring new
jurisdiction expressly provides for retroactive
effect. [Southern Food v. Salas (1992)]

How jurisdiction over the defendant is acquired


Acquired by the
(1) voluntary appearance or submission by the
defendant or respondent to the court or
(2) by coercive process issued by the court to him,
generally by the service of summons [de Joya v.
Marquez (2006), citing Regalado]

(f) The filing of the complaint or appropriate


initiatory pleading and the payment of the
prescribed docket fee vest a trial court with
jurisdiction over the subject matter or the nature
of the action [CB v. CA (1992)](2008 Bar Exam).
Exception: Non-payment of docket fee does not
automatically cause the dismissal of the case on
the ground of lack of jurisdiction as long as the
fee is paid within the applicable prescriptive or
reglementary period, more so when the party
involved demonstrates a willingness to abide by
the rules prescribing such payment. [Go v. Tong
(2003)]

In an action in personam, jurisdiction over the person


is necessary for the court to validly try and decide the
case, while in a proceeding in rem or quasi in rem,
jurisdiction over the person of the defendant is not a
prerequisite to confer jurisdiction on the court
provided the latter has jurisdiction over the res [Alba
v. CA (2005)].

Jurisdiction versus the exercise of jurisdiction


(a) Jurisdiction: the authority to hear and determine a
cause the right to act in a case. [Arranza v. BF
Homes (2000)].

JURISDICTION OVER THE SUBJECT MATTER

Meaning of jurisdiction over the subject matter


Jurisdiction over the subject matter is the power to
deal with the general subject involved in the action,
and means not simply jurisdiction of the particular
case then occupying the attention of the court but
jurisdiction of the class of cases to which the
particular case belongs (Riano citing CJS).

Exercise of Jurisdiction.: the exercise of this


power or authority
(b) Jurisdiction is distinct from the exercise thereof.
Jurisdiction is the authority to decide a case and
not the decision rendered therein. When there is
jurisdiction over the subject matter, the decision
on all other questions arising in the case is but an
exercise of jurisdiction. [Herrera v. Baretto et al
(1913)]

It is the power to hear and determine cases of the


general class to which the proceedings in question
belong [Reyes v. Diaz (1941)]
How conferred and determined
(a) It is conferred only by the Constitution or the law.

Error of jurisdiction as distinguished from error of


judgment

(b) Jurisdiction CANNOT be:


(1) fixed by agreement of the parties;
(2) cannot be acquired through, or waived,
enlarged or diminished by, any act or omission
of the parties;
(3) neither can it be conferred by the
acquiescence of the court [Regalado citing De
Jesus v Garcia (1967)].
(4) cannot be subject to compromise [Civil Code,
Art 2035]
(c) Jurisdiction over the subject matter is determined
by the allegations of the complaint and the reliefs
prayed for. [Gulfo v. Ancheta (2012)]
(d) It is not affected by the pleas set up by the
defendant in the answer or in the answer or in a
motion to dismiss. [Sindico v. Diaz (2004)].

Error of jurisdiction

Error of judgment

It is one where the act


complained of was issued
by the court without or in
excess of jurisdiction
[Cabrera v. Lapid (2006)].

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)]
Correctible by appeal

Correctible only by the

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Error of jurisdiction

Error of judgment

extraordinary writ of
certiorari [Cabrera v Lapid
(2006)]
Renders a judgment void
or voidable [Rule 16 Sec.
1, Rule 65]

[Cabrera v Lapid (2006)]

BAR OPERATIONS COMMISSION

the filing or service of an answer. Lack of


jurisdiction over subject matter is a ground for a
motion to dismiss. If no motion is filed, the
defense of lack of jurisdiction may be raised as an
affirmative defense in the answer. [Riano citing
Sec. 1(b) and 6 of Rule 16].
(c) Jurisdiction over subject matter may be raised at
any stage of proceedings, even for the first time on
appeal [Calimlim v. Ramirez (1982)]

Ground for reversal only


if it is shown that
prejudice has been
caused [Banco EspaolFilipino v Palanca (1918)]

Effect of estoppel on objections to jurisdiction


Jurisdiction by estoppel
General Rule: Estoppel does not apply to confer
jurisdiction to a tribunal that has none over a cause
of action. Jurisdiction is conferred by law. Where
there is none, no agreement of the parties can
provide one. Settled is the rule that the decision of a
tribunal not vested with appropriate jurisdiction is
null and void. [SEAFDEC-AQD v. NLRC (1992)]

How jurisdiction is conferred and determined


Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement of
the action determines the jurisdiction of the court.
Doctrine of primary jurisdiction
(a) Courts cannot and will not resolve a controversy
involving a question which is within the
jurisdiction of an administrative tribunal, especially
where the question demands the exercise of
sound administrative discretion requiring the
special knowledge, experience and services of the
administrative tribunal to determine technical
and intricate matters of fact [Paloma v. Mora
(2005)].
(b) Objective is to guide a court in determining
whether it should refrain from exercising its
jurisdiction until after an administrative agency
has determined some question or some aspect of
some question arising in the proceeding before
the court [Riano citing Omictin v. CA (2007)]

Exception: Participation in all stages of the case


before the trial court, that included invoking its
authority in asking for affirmative relief, effectively
barred petitioner by estoppel from challenging the
courts jurisdiction. [Soliven v. Fastforms (2004)]
JURISDICTION OVER THE ISSUES

(a) The power of the court to try and decide issues


raised in the pleadings of the parties [Reyes v.
Diaz (1941)]
(b) How conferred & determined:
(1) Pleadings filed by the parties,
(2) Agreement in a pre-trial order or stipulation
[Rule 18, Sec. 2], or
(3) Implied consent as by the failure of a party to
object to evidence on an issue not covered by
the pleadings in Rule 10, Sec. 5. [Regalado]

Doctrine of adherence of jurisdiction


(a) Also known as doctrine of continuity of jurisdiction
(b) The court, once jurisdiction has been acquired,
retains that jurisdiction until it finally disposes of
the case [Bantua v. Mercader (2001)].
(c) As a consequence, jurisdiction is not affected by a
new law placing a proceeding under the
jurisdiction of another tribunal, EXCEPT:
(d) where there is an express provision in the statute
(e) the statute is clearly intended to apply to actions
pending before its enactment [Riano citing People
v. Cawaling (1998)].
(f) Jurisdiction being a matter of substantive law, the
statute in force at the time of the commencement
of the action determines the jurisdiction of the
court. [Municipality of Kananga v Madrona (2003)]

JURISDICTION OVER THE RES OR PROPERTY IN LITIGATION

(a) Refers to the courts jurisdiction over the thing or


the property which is the subject of the litigation.
(b) Acquired either by
(1) actual or constructive seizure by the court of
the thing in question, thus placing it in
custodia
legis
(e.g.
attachment
or
garnishment) or
(2) by provision of law which recognizes in the
court the power to deal with the property or
subject-matter within its territorial jurisdiction
(e.g. land registration) [Regalado]

Objections to jurisdiction over the subject matter


(a) The Court may ex mero motu, or on its own
initiative take cognizance of lack of jurisdiction
[Fabian v. Desierto (1998)].
(b) Earliest opportunity of a party to raise the issue of
jurisdiction is in a motion to dismiss filed before

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(vii) The finding of absence of facts is


contradicted by the presence of evidence
on record;
(viii) The findings of the CA are contrary to
those of the trial court;
(ix) The CA manifestly overlooked certain
relevant and undisputed facts that, if
properly considered, would justify a
different conclusion;
(x) The findings of the CA are beyond the
issues of the case;
(xi) Such findings are contrary to the
admissions of both parties.

JURISDICTION OF COURTS

Supreme Court
The judicial power shall be vested in one SC and in
such lower courts as may be established by law. [Art.
8, Sec. 1, Constitution]
Powers of the Supreme Court [Art. 8, Sec. 5,
Constitution]
(a) EXERCISE original jurisdiction over:
(1) Cases affecting ambassadors and other public
ministers and consuls;

Distinction between Questions of Law and Fact

RTC also has concurrent jurisdiction

Question of law
(2) Petitions
for
mandamus, quo
corpus.

certiorari,
prohibition,
warranto, and habeas

There is a question of
law when the doubt or
difference arises as to
what the law is on a
certain state of facts, and
which does not call for an
examination
of
the
probative value of the
evidence presented by
the
parties-litigants.
[Republic
v.
Medida
(2012)]

(b) Review/revise/reverse/modify/affirm on appeal or


certiorari, final judgments/orders of lower courts in:
(1) All cases in which the constitutionality/validity
of any treaty, international or executive
agreement,
law,
presidential
decree/proclamation/order/
instruction,
ordinance or regulation is in question;
Note: power of review contemplates the ff.
courts: CA, Sandiganbayan, CTA, RTC, and
other courts authorized by law.

Question of fact
There is a question of
fact when the doubt or
controversy arises as to
the truth or falsity of the
alleged facts [Republic v.
Medida (2012)]

(c) Assign temporarily judges of lower courts to other


stations as public interest may require, which
shall not last 6 six months without the consent of
the judge concerned.

(2) All cases involving the legality of any tax/


impost/ assessment/ toll, or any penalty
imposed in relation thereto;

(d) Order a change of venue or place of trial to avoid


a miscarriage of justice.

(3) All cases in which the jurisdiction of any lower


court is in issue;

(e) Promulgate rules on:


(1) Protection and enforcement of constitutional
rights;
(2) Pleading/practice/procedure in all courts;
(3) Admission to the practice of law;
(4) The Integrated Bar;
(5) Legal assistance to the under-privileged.

(4) All criminal cases in which the penalty


imposed is reclusion perpetua or higher;
(5) All cases in which only errors/questions of law
are involved.
Exceptions: [Josefa v. Zhandong (2003)]
(i) The
conclusion
is
grounded
on
speculations/ surmises /conjectures;
(ii) The
inference
is
manifestly
mistaken/absurd/impossible;
(iii) There is grave abuse of discretion;
(iv) The judgment is based on a
misapprehension of facts;
(v) The findings of fact are conflicting;
(vi) There is no citation of specific evidence on
which the factual findings are based;

Guidelines on the rules:


(1) Provide a simplified and inexpensive
procedure for the speedy disposition of cases;
(2) Uniform for all courts of the same grade;
(3) Not diminish/increase/modify substantive
rights.
(4) Rules of procedure of special courts and
quasi-judicial bodies shall remain effective
unless disapproved by the SC.

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(f) Appoint all Judiciary officials/employees in


accordance with the Civil Service Law.

(d) Sec. 17, Par. 3(1) and Par. 4(4) of the Judiciary Act
of 1948.

Constitutional commissions
(a) COMELEC and COA Unless otherwise provided
by this Constitution or by law, any decision/order
/ruling of each Commission may be brought to
the SC on certiorari by the aggrieved party, within
30 days from receipt of a copy thereof. [Art. 9-A,
Sec. 7, Constitution]
(b) CSC - Judgments/decisions/orders are within the
exclusive appellate jurisdiction of the CA through
Rule 43. [BP 129, as amended by RA 7902]
(c) Sandiganbayan
(1) Decisions and final orders of the
Sandiganbayan shall be subject to review on
certiorari by the SC in accordance with Rule
45 of the Rules.
(2) Whenever, in any case decided, the death
penalty shall have been imposed, the records
shall be forwarded to the SC whether the
accused shall have appealed or nor, for review
and judgment. [PD 1606 Sec 7]

Review of decisions by the NLRC: [St. Martins Funeral


Home v. NLRC (1998)]
Supposed appeals from the NLRC to the SC are
interpreted and hereby declared to mean and refer
to Petitioners for Certiorari under Rule 65.
All such petitions should be initially filed in the CA in
strict observance of the doctrine on the hierarchy of
courts.
All special civil actions arising out of any decision or
final resolution or order of the NLRC filed with the
SC after June 1, 1999 shall not longer be referred to
the CA, but shall forthwith be dismissed.
Powers of the Court of Appeals
(a) Try cases and conduct hearings;
(b) Receive evidence
(c) Perform any and all acts necessary to resolve
factual issues raised, including the power to grant
and conduct new trials or further proceedings.

Court of Appeals [Sec. 9, BP 129]

Trials or hearings must be continuous and must be


completed within 3 months, unless extended by the
Chief Justice.

Original Jurisdiction
To issue writs of mandamus, prohibition, certiorari,
habeas corpus and quo warranto, and auxiliary
writs/processes, whether or not in aid of its appellate
jurisdiction.

Court of Tax Appeals [Sec. 7, RA 1125, as amended by


RA 9282]

Note: former rule only allowed the CA to issue


auxiliary writs and processes in aid of jurisdiction.

Exclusive appellate jurisdiction to review by appeal


(a) Decisions of the Commissioner of Internal
Revenue in cases involving disputed assessments,
refunds of internal revenue taxes, fees or other
charges, penalties in relation thereto, or other
matters arising under the National Internal
Revenue or other laws administered by the BIR;
(b) Inaction by the Commissioner of Internal Revenue
in cases involving disputed assessments, refunds
of internal revenue taxes, fees or other charges,
penalties in relations thereto, or other matters
arising under the National Internal Revenue Code
or other laws administered by the BIR, where the
National Internal Revenue Code provides a
specific period of action, in which case the
inaction shall be deemed a denial;
(c) Decisions, orders or resolutions of the RTCS in
local tax cases originally decided or resolved by
them in the exercise of their original or appellate
jurisdiction;
(d) Decisions of the Commissioner of Customs in
cases involving liability for customs duties, fees or
other money charges, seizure, detention or
release of property affected, fines, forfeitures or
other penalties in relation thereto, or other

The power is concurrent with the SC.


Exclusive Original Jurisdiction
Annulment of RTC judgments.
Exclusive Appellate Jurisdiction
(a) Final
judgments/decisions/resolutions/orders/awards
of:
(1) RTCs;
(2) Quasi-judicial
agencies/instrumentalities/
boards/commissions including:
(i) SEC;
(ii) Social Security Commission;
(iii) ECC;
(iv) CSC.
Exception: Those falling within the SCs appellate
jurisdiction of the Supreme Court in accordance with:
(a) The Constitution;
(b) Labor Code;
(c) BP 129;

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matters arising under the Customs Law or other


laws administered by the Bureau of Customs;
(e) Decisions of the Central Board of Assessment
Appeals in the exercise of its appellate
jurisdiction over cases involving the assessment
and taxation of real property originally decided by
the provincial or city board of assessment
appeals;
(f) Decisions of the Secretary of Finance on customs
cases elevated to him automatically for review
from decisions of the Commissioner of Customs
which are adverse to the Government under
Section 2315 of the Tariff and Customs Code;
(g) Decisions of the Secretary of Trade and Industry,
in the case of nonagricultural product,
commodity or article, and the Secretary of
Agriculture in the case of agricultural product,
commodity or article, involving dumping and
countervailing duties under Sec 301 and 302,
respectively, of the Tariff and Customs Code, and
safeguard measures under RA 8800, where
either party may appeal the decision to impose or
not to impose said duties.

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originally decided by the MeTCs, MTCs and


MCTCs in their respective jurisdiction.
Jurisdiction over tax collection cases as herein provided:
General rule: Exclusive original jurisdiction in tax
collection cases involving final and executory
assessments for taxes, fees, charges and penalties:
BUT, collection cases where the principal amount of
taxes and fees, exclusive of charges and penalties,
claimed is less than P1,000,000.00 shall be tried by
the proper MTC, MeTC and RTC
Exclusive appellate jurisdiction in tax collection cases:
Over appeals from the judgments, resolutions or
orders of the RTCs in tax collection cases originally
decided by them, in their respective territorial
jurisdiction.
Over petitions for review of the judgments,
resolutions or orders of the RTCs in the Exercise of
their appellate jurisdiction over tax collection cases
originally decided by the MeTCs, MTCs and MCTCs,
in their respective jurisdiction."

Jurisdiction over cases involving criminal offenses:


General rule: Exclusive original jurisdiction over all
criminal offenses arising from violations of the
National Internal Revenue Code or Tariff and
Customs Code and other laws administered by the
BIR or the Bureau of Customs

NOTE: RA 9282 elevated CTAs rank to the level of


the Court of Appeals with special jurisdiction.
Sandiganbayan [Sec.4 of RA 8249]
(a) Decisions and final orders of the Sandiganbayan
shall be subject to review on certiorari by the
Supreme Court in accordance with Rule 45 of the
Rules.
(b) Whenever, in any case decided, the death penalty
shall have been imposed, the records shall be
forwarded to the SC whether the accused shall
have appealed or nor, for review and judgment.
[PD 1606 Sec 7]

BUT, offenses or felonies where the principal amount


of taxes and fees, exclusive of charges and penalties,
claimed is less than P1,000,000.00 or where there is
no specified amount claimed shall be tried by the
regular Courts and the jurisdiction of the CTA shall be
appellate.
Any provision of law or the Rules of Court to the
contrary notwithstanding, the criminal action and
the corresponding civil action for the recovery of civil
liability for taxes and penalties shall at all times be
simultaneously instituted with, and jointly
determined in the same proceeding by the CTA, the
filing of the criminal action being deemed to
necessarily carry with it the filing of the civil action,
and no right to reserve the filling of such civil action
separately from the criminal action will be
recognized.

Original Exclusive Jurisdiction


(a) Violations of RA 3019 (Anti-graft and Corrupt
Practices Law);
(b) RA 1379 (Forfeiture of Illegally Acquired Wealth);
(c) Crimes by public officers or employees embraced
in Ch. II, Sec.2 Title VII, Bk. II of the RPC (Crimes
committed by Public Officers) namely:
(1) Direct Bribery under Art. 210 as amended by
BP 871, May 29, 1985;
(2) Indirect Bribery under Art. 211 as amended by
BP 871, May 29, 1985;
(3) Qualified Bribery under Art. 211-A as amended
by RA 7659, Dec. 13, 1993;
(4) Corruption of public officials under Art. 212
where one or more of the accused are officials
occupying the following positions in the
government whether in a permanent, acting

Exclusive appellate jurisdiction in criminal offenses:


(a) Over appeals from the judgments, resolutions or
orders of the RTCs in tax cases originally decided
by them, in their respected territorial jurisdiction.
(b) Over petitions for review of the judgments,
resolutions or orders of the RTCs in the exercise
of their appellate jurisdiction over tax cases

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or interim capacity, at the time of the


commission of the offense:
(i) Officials of the executive branch occupying
the positions of regional director and
higher, otherwise classified as Grade 27
and higher, of the Compensation and
Position Classification Act of 1989
Republic Act No. 6758) specifically
including:
(ii) Provincial
governors,
vice-governors,
members
of
the
sangguniang
panlalawigan,
provincial
treasurers,
assessors, engineers and other provincial
department heads;
(iii) City mayors, vice-mayors, members of the
sangguniang panglungsod, city treasurers,
assessors, engineers and other department
heads;
(iv) Officials of the diplomatic service
occupying the position of consul and
higher;
(v) Philippine Army and Air force colonels,
naval captains and all officers of higher
rank;
(vi) Officers of the PNP while occupying the
position of Provincial Director and those
holding the rank of Senior Superintendent
or higher;
(vii) City and provincial prosecutors and their
assistants; officials and the prosecutors in
the Office of the Ombudsman and special
prosecutor ;
(viii) President, directors or trustees or
managers of government owned or
controlled corporations, state universities
or educational institutions or foundations;
(5) Members of Congress and Officials thereof
classified as Grade 27 and up under the
Compensation and Classification Act of 1989;
(6) Members of the Judiciary without prejudice to
the provision of the Constitution;
(7) Chairmen and members of Constitutional
Commissions, without prejudice to the
provision of the Constitution;
(8) All other national and local officials classified
as Grade 27 and higher under the
Compensation and Position Classification Act
of 1989.
(d) Other offenses or felonies whether simple or
complexed with other crimes committed in
relation to their office by the public officials and
employees mentioned above;
(e) Civil and Criminal Cases filed pursuant to and in
connection with EO 1, 2, 14 & 14-A issued in 1986
(f) Petitions for issuance of Writ of mandamus,
prohibition, certiorari, habeas corpus, injunction

BAR OPERATIONS COMMISSION

and other ancillary writs and processes in aid of


its appellate jurisdiction;
(g) Provided, jurisdiction is not exclusive of the
Supreme Court
(h) Petitions for Quo Warranto arising or that may
arise in cases filed or that may be filed under EO
1, 2, 14 & 14- A
(i) OTHERS provided the accused belongs to Salary
Grade 27 or higher:
(1) Violation of RA 6713 - Code of Conduct and
Ethical Standards
(2) Violation of RA 7080 The Plunder Law
(3) Violation of RA 7659 - The Heinous Crime Law
(4) RA 9160 - Violation of The Anti-Money
Laundering Law when committed by a public
officer
(5) PD 46 referred to as the gift-giving decree
which makes it punishable for any official or
employee to receive directly or indirectly and
for the private person to give or offer to give
any gift, present or other valuable thing on
any occasion including Christmas, when such
gift, present or valuable thing is given by
reason of his official position, regardless of
whether or not the same is for past favors or
the giver hopes or expects to receive a favor or
better treatment in the future from the public
official or employee concerned in the
discharge of his official functions. Included
within the prohibition is the throwing of
parties or entertainment in honor of the
official or employee or his immediate relatives.
(6) PD 749 which grants immunity from
prosecution to any person who voluntarily
gives information about any violation of
Art.210, 211 or 212 of the RPC, RA 3019,
Sec.345 of the NIRC, Sec. 3604 of the
Customs and Tariff Code and other provisions
of the said Codes penalizing abuse or
dishonesty on the part of the public officials
concerned and other laws, rules and
regulations penalizing graft, corruption and
other forms of official abuse and who willingly
testifies against the public official or employee
subject to certain conditions.
NOTE: Private individuals can be sued in cases
before the Sandiganbayan if they are alleged to be in
conspiracy with the public officer.
Appellate Jurisdiction
Over final judgments, resolutions or orders of the
RTC whether in the exercise of their original or
appellate jurisdiction over crimes and civil cases
falling within the original exclusive jurisdiction of the
Sandiganbayan but which were committed by public
officers below Salary Grade 27.

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CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

Exception: Forcible entry into and unlawful detainer


of lands/buildings

Note: The Sandiganbayan has jurisdiction to grant


petitions for the issuance writ writs of mandamus,
prohibition, certiorari, habeas corpus, injunctions,
and other ancillary writs and processes in aid of its
appellate jurisdiction. [RA 7975, as amended][asked
in 2009 BAR]

Admiralty and maritime jurisdiction where the


demand/claim exceeds P300K or P400K (in Metro
Manila);
(a) Maritime and admiralty cases involve trade and
transactions in the sea. Maritime jurisdiction
includes maritime tort. [Negre v. Cabahug (1966)]

Regional Trial Courts


Exclusive Original Jurisdiction in Civil Cases [Sec. 19, BP
129, Asked in the 2002 Bar Examinations]
Incapable of pecuniary estimation (2000 Bar Exam);
(a) If the action is primarily for the recovery of a sum
of money, the claim is considered capable of
pecuniary estimation, and jurisdiction over the
action will depend on the amount of the claim.
[RCPI v. CA (2002)]
(b) If the basic issue is something other than the
right to recover a sum of money, if the money
claim is purely incidental to, or a consequence of,
the principal relief sought, the action is one where
the subject of the litigation may not be estimated
in terms of money. [Soliven v. Fastforms (1992)]
(c) If the thing sought to be deposited or consigned
is a sum of money, the amount of the debt due is
determinable and capable of pecuniary
estimation. [Ascue v. CA (1991)]
(d) Action for support is incapable of pecuniary
estimation because the court is asked to
determine first WON the plaintiff is indeed
entitled to support. [Baito v. Sarmiento (1960)]
(e) Action for specific performance is incapable of
pecuniary estimation. [Manufacturers Distributors
v. Yu Siu Liong (1966)]
(f) The jurisdiction of the respective courts is
determined by the value of the demand and not
the value of the transaction out of which the
demand arose.
(1) The alternative prayer for specific performance
is also of the same value, for the alternative
prayer would not have been made in the
complaint if one was more valuable than the
other. [Cruz v. Tan (1950)]
(g) Rescission is a counterpart of specific
performance therefore also incapable of
pecuniary estimation. [Lapitan v. Scandia (1968)]
(h) Action for declaration of nullity of a deed of
partition is incapable of pecuniary estimation.
[Russel v. Vestil (1999)]
(i) An action for expropriation is incapable of
pecuniary estimation. [Bardillon v. Masili (2003)]

Probate (testate and intestate) where the gross value


of the estate exceeds P300K or P400K (in Metro
Manila);
Marriage contract and marital relations;
General Original Jurisdiction
All cases not within the exclusive jurisdiction of any
court/tribunal/person/ body exercising judicial or
quasi-judicial functions;
Within the exclusive original jurisdiction of a Juvenile
and Domestic Relations Court and of the Court of
Agrarian Relations;
All other cases where the demand (exclusive of
interest, damages of whatever kind, attorney's fees,
litigation expenses and costs) or the value of the
property in controversy exceeds P300K or P400K in
Metro Manila.
(a) The exclusion of the term damages of whatever
kind in determining the jurisdictional amount
under Sec. 19(8) and Sec. 33 (1) of BP 129, as
amended by RA 7691, applies to cases where the
damages are merely incidental to or a
consequence of the main cause of action.
However, if the claim for damages is the main
cause of action, or one of the causes of action, the
amount of such claim shall be considered in
determining the jurisdiction of the court.[Admin
Circ. 09-94]
(b) Actions for damages based on quasi-delicts are
primarily and effectively actions for the recovery
of a sum of money for the damages suffered
because of the defendants alleged tortious acts.
This money claim is the principal relief sought,
and is not merely incidental thereto or a
consequence thereof. [Iniego v. Purganan (2006)]
Original Jurisdiction [Sec. 21, BP 129]
(a) Certiorari, prohibition, mandamus, quo warranto,
habeas corpus and injunction which may be
enforced in any part of their respective regions;

Title to, or possession of, real property (or any interest


therein) where the propertys assessed value exceeds
P20K or P50K (for civil actions in Metro Manila);

CONCURRENT jurisdiction with SC and CA

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CIVIL PROCEDURE

(b) Actions affecting ambassadors and other public


ministers and consuls.

BAR OPERATIONS COMMISSION

causes of action, WON the causes of action


arose out of the same/different transactions.

CONCURRENT jurisdiction with SC

(b) Forcible entry and unlawful detainer


(1) If the defendant raises the question of
ownership in his pleadings and the question of
possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to determine
the issue of possession.
(2) That the MeTC has jurisdiction even in cases
where the issue of possession is closely
intertwined with the issue of ownership is now
a settled doctrine in ejectment proceedings.
[Heirs of B. Hernandez v. Vergara (2006)]
(3) The authority granted to the MeTC to
preliminarily resolve the issue of ownership to
determine the issue of possession ultimately
allows it to interpret and enforce the contract
or agreement between the plaintiff and the
defendant. However, MeTCs ruling on the
rights of the parties based on its interpretation
of their contract is, of course, not conclusive,
but is merely provisional and is binding only
with respect to the issue of possession. [Union
Bank v. Maunlad Homes (2012)]

Exclusive Appellate Jurisdiction [Sec. 22, BP 129]


All cases decided by MeTCs/MTCs/MCTCs in their
respective territorial jurisdictions. Metropolitan,
Municipal and Municipal Circuit Trial Courts
Family Courts
Exclusive Original Jurisdiction
(a) Petitions for guardianship, custody of children,
habeas corpus in relation to the latter;
(b) Petitions for adoption of children and revocation
thereof;
(c) Complaints for annulment of marriage,
declaration of nullity of marriage and those
relating to marital status and property relations
of husband and wife or those living together
under different status and agreements, and
petitions for dissolution of conjugal partnership of
gains;
(d) Petitions for support and/ or acknowledgement;
(e) Summary judicial proceedings brought under the
Family Code;
(f) Petitions for declaration of status of children as
abandoned, dependent or neglected children, for
voluntary or involuntary commitment of children,
and for suspension, termination or restoration of
parental authority under PD 603, EO 56 s. 1986
and other related laws;
(g) Cases for domestic violence against women and
children, as defined therein but which do not
constitute criminal offenses subject to criminal
prosecution and penalties.

(c) All civil actions that involve title to, or possession of,
real property (or any interest therein) where the
assessed value of the property (or interest
therein) does not exceed P20K or P50K (in civil
actions in Metro Manila).
(1) Value excludes interest, damages of whatever
kind, attorneys fees, litigation expenses and
costs
(2) If land is not declared for taxation purposes, the
value of such property shall be determined by
the assessed value of the adjacent lots.

Metropolitan Trial Courts/Municipal Trial Courts

(d) All civil cases subject to summary procedure.

Exclusive Original Jurisdiction [Sec. 33, BP 129]


(a) Civil actions and probate proceedings (testate and
intestate), including the grant of provisional
remedies, where the value of the personal
property, estate or amount of the demand does not
exceed P300K or P400K (in Metro Manila) (value
excludes of interest, damages of whatever kind,
attorneys fees, litigation expenses, and costs);
(1) Interest, damages of whatever kind, attorney's
fees, litigation expenses and costs shall be
included in the determination of the filing
fees.
(2) If there are several claims or causes of actions
between the same/different parties in the
same complaint, the amount of the demand
shall be the totality of the claims in all the

Delegated Jurisdiction in Cadastral and Land


Registration Cases [Sec. 34, BP 129]
(a) Lots where there is no controversy/ opposition; or
(b) Contested lots the value of which does not
exceed P100K.
(1) The value is to be ascertained:
(i) By the claimants affidavit;
(ii) By agreement of the respective claimants, if
there are more than one;
(iii) From the corresponding tax declaration of
the real property.
(2) MTC decisions in cadastral and land
registration cases are appealable in the same
manner as RTC decisions.

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CIVIL PROCEDURE

Shariah Courts
Original Jurisdiction [Article 143, CMPL]
(a) All cases involving custody, guardianship,
legitimacy, paternity and filiation arising under
the Code of Muslim Personal Laws;
(b) All cases involving disposition, distribution and
settlement of estate of deceased Muslims,
probate of wills, issuance of letters of
administration or appointment of administrators
or executors regardless of the nature or
aggregate value of the property;
(c) Petitions for the declaration of absence and
death for the cancellation or correction of entries
in the Muslim Registries mentioned in Title VI,
Book Two of the Code of Muslim Personal Laws;
(d) 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
(e) All petitions for mandamus, prohibition,
injunction, certiorari, habeas corpus, and all other
auxiliary writs and processes in aid of its
appellate jurisdiction.

BAR OPERATIONS COMMISSION

to settle certain cases amicably and without formal


trial.
The Council is composed of the Clerk of Court as
Chairperson and a representative of each of the
conflicting parties.
JURISDICTION OVER SMALL CLAIMS, CASES
COVERED BY THE RULES ON SUMMARY
PROCEDURE AND BARANGAY CONCILIATION
[A.M. No. 08-8-7-SC, the Rule of Procedure for Small
Claims Cases effective October 1, 2008]
DEFINITION

Small claims courts are courts of limited jurisdiction


that hear civil cases between private litigants
[Rationale of Proposed Rule].
PURPOSE

The purpose of small claims process is to provide an


inexpensive and expeditious means to settle disputes
over small amounts [Riano].
SCOPE

Concurrent Jurisdiction with Civil Courts


(a) Petitions by Muslim for the constitution of a
family home, change of name and commitment
of an insane person to an asylum;
(b) All other personal and legal actions not
mentioned in paragraph 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 Municipal
Circuit Court; and
(c) All special civic actions for interpleader or
declaratory relief wherein the parties are Muslims
or the property involved belongs exclusively to
Muslims

This rule governs the procedure in actions before the


Metropolitan trial Courts, Municipal Trial Courts in
Cities, Municipal Trial Courts and Municipal Circuit
Trial Courts for payment of money where the value of
the claim does not exceed One Hundred Thousand
Pesos (P100,000.00) exclusive of interest and costs.
[Sec. 2, Scope]
APPLICABILITY

The Metropolitan Trial Courts, Municipal Trial Courts


in Cities, Municipal Trial Courts, and Municipal
Circuit Trial Courts shall apply this Rule in all actions
which are:
(a) purely civil in nature where the claim or relief
prayed for by the plaintiff is solely for payment or
reimbursement of sum of money, and
(b) the civil aspect of criminal action, or reserved
upon the filing of the criminal action in court,
pursuant to Rule of 111 of the Revised Rules of
Criminal Procedure.

Sharia Circuit Courts are courts where Muslims can


file cases involving the following:
(a) Offenses defined and punished under PD 1083
(b) Disputes relating to :
(1) Marriage
(2) Divorce
(3) betrothal or breach of contract to marry
(4) customary dower (mahr)
(5) disposition and distribution of property upon
divorce
(6) maintenance and support and consolatory
gifts (muta)
(7) restitution of marital right
(8) Disputes relative to communal properties

These claims or demands may be:


(a) For money owed under any of the following;
(1) Contract of Lease;
(2) Contract of Loan;
(3) Contract of Services;
(4) Contract of Sale; or
(5) Contract of Mortgage;
(b) For damages arising from any of the following;
(1) Fault or negligence;
(2) Quasi-contract; or
(3) Contract;

NOTE: The Sharia District Court or the Sharia Circuit


Court may constitute an Agama Arbitration Council

PAGE 13

UP COLLEGE OF LAW

CIVIL PROCEDURE

(c) The enforcement of a barangay amicable


settlement or an arbitration award involving a
money claim covered by this Rule pursuant to
Sec. 417 of RA 7160, otherwise known as the
Local Government Code of 1991. [Sec. 4,
Applicability]
PROHIBITED PLEADINGS

The following pleadings, motions, and petitions shall


not be allowed in the cases covered by this Rule:
(a) Motion to dismiss the compliant except on the
ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions. [Sec. 14, Prohibited pleadings and
motions]

BAR OPERATIONS COMMISSION

Cause of action

Action

(a) A cause of action is


the basis of the
action filed [Rule 2,
Sec.1]
(b) Fact or combination
of facts which affords
a party a right to
judicial interference
in his behalf. [Into v.
Valle (2005)]

Ordinary suit in a court of


justice, by which one
party prosecutes another
for the enforcement or
protection of a right, or
the
prosecution
or
redress of a wrong

MEANING OF ORDINARY CIVIL ACTIONS


An ordinary civil action is one that is governed by the
rules for ordinary civil actions [Rule 1, Sec. 3(a) par 2]
MEANING OF SPECIAL CIVIL ACTIONS
A special civil action is one that is subject to the
specific rules prescribed for a special civil action; it is
also governed by the rules for ordinary civil actions
[Rule 1, Sec. 3(a) par 2]
MEANING OF CRIMINAL ACTIONS
A criminal action is one by which the State
prosecutes a person for an act or omission
punishable by law. [Rule 1, Sec. 3(b)]
CIVIL ACTIONS VERSUS SPECIAL PROCEEDINGS
A civil action is one by which a party sues another for
the enforcement or protection of a right, or the
prevention or redress of a wrong. [Rule 1, Sec. 3(a) par
1]

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 causes of
action, irrespective of whether the causes of action
arose out of the same or different transaction [Riano
citing Pantranco North Express v Standard Insurance
(2005)]

A special proceeding is a remedy by which a party


seeks to establish a status, a right, or a particular
fact. [Rule 1, Sec. 3 (c)]
DISTINCTIONS BETWEEN CIVIL ACTIONS AND SPECIAL
PROCEEDINGS (Asked in the 1998 Bar Exam)

Actions

Action

As to Parties
Involves 2 or more parties Involves at least 1 party
or 2 or more
parties in proper cases
As to cause of action
Involves a right and a May involve a right, but
violation of such right by there need not be a
the defendant which violation of this right
causes
some
damage/prejudice upon
the plaintiff
As to formalities

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)]
ACTION VS CAUSE OF ACTION
(Asked in the 1999 Bar Exam)
Cause of action

Special Proceeding

Action

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CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

Real action
Action

Special Proceeding
Ownership or
possession of
real property is
involved

Requires the application Requires


no
such
of legal remedies in formalities, as it
accordance with the may be granted upon
prescribed rules
application
As to governing rules
Ordinary
rules
of Special
rules
procedure
procedure
As to appeal from an interlocutory
Order
Cannot be directly and
immediately appealed to
the appellate court until
after final judgment on
the merits

of

Can be immediately
and directly appealed
to the appellate court

PERSONAL ACTIONS AND REAL ACTIONS


Real Actions: Actions affecting title to or possession
of real property, or interest therein. [Rule 4, Sec. 1 par
1]

Founded
on
privity of real
estate

Founded
privity
contract

Filed in the
court where the
property (or any
portion thereof)
is situated

Filed in the
court where the
plaintiff or any
of
the
defendants
resides, at the
plaintiffs
option

Personal Actions: All other actions are personal


actions. [Rule 4, Sec.2]
OF

DISTINCTION:

Note: Not every action involving a real property is a


real action because the realty may only be incidental
to the subject matter of the suit. To be a real action,
it is not enough that the action must deal with real
property. It is important that the matter in litigation
must also involve any of the following issues: title to,
ownership, possession, paritition, foreclosure or
mortgage or any interest in real property. (Riano)
Real action

Personal
action

on
of

Mixed action
Both real and
personal
properties are
involved

Founded
both

on

The rules on
venue of real
actions govern

LOCAL AND TRANSITORY ACTIONS


Local action
Transitory action
(a) One that could be (a) One that could be
instituted in one
prosecuted in any one
specific place [Manila
of several places
Railroad v. Attorney[Manila Railroad v.
General (1911)]
Attorney-General
(b) Venue depends upon
(1911)]
the location of the (b) Its venue depends
property involved in
upon the residence of
the litigation (Riano)
the plaintiff or the
defendant at the
option of the plaintiff
(Riano)

for purposes of
determining the venue of the action (Riano)
(a) Real actions shall be commenced and tried in the
proper court which has jurisdiction over the area
wherein the real property involved, or a portion
thereof, is situated. [Rule 4, Sec.1]
(b) Personal actions may be commenced and tried
where the plaintiff or any of the principal
plaintiffs resides, or where the defendant or any
of the principal defendants resides, or in the case
of a non-resident defendant, where he may be
found, at the election of the plaintiff. [Rule 4,
Sec.2]
IMPORTANCE

Personal
action
Personal
property
is
sought to be
recovered
or
damages
for
breach
of
Contract or the
enforcement of
a contract are
sought

Actions in rem, in personam and quasi in rem


[Riano citing Domagas v. Jensen, (2005) and Biaco v.
Philippine Countryside Rural Bank, (2007)]
Action in rem
Directed
against
the
thing itself

Mixed action

PAGE 15

Action in
personam
Directed
against
particular
persons

Action
quasi in rem
Directed
against
particular
persons

UP COLLEGE OF LAW

Action in rem
Jurisdiction
over the person
of the
defendant is
NOT required

A proceeding to
determine the
state/condition
of a thing

Judgment is
binding on the
whole world

CIVIL PROCEDURE

Action in
personam
Jurisdiction
over the person
of the
defendant is
required

An action to
impose
responsibility or
liability upon a
person directly

Judgment is
binding only
upon parties
impleaded or
their successors
in interest

Action
quasi in rem
Jurisdiction
over the person
of the
defendant is
not required as
long as
jurisdiction over
the res is
acquired
A proceeding to
subject the
interest of a
named
defendant over
a particular
property to an
obligation/lien
burdening it

Action in rem
Ex: Accion
reivindicatoria;
annulment of
marriage;
naturalization
proceedings

BAR OPERATIONS COMMISSION

Action in
personam
Ex: Action for
specific
performance;
action to
recover money
or property
(real or
personal)

Action
quasi in rem
Ex: Action for
partition; action
to foreclose
real estate
mortgage

The question of whether the trial court has


jurisdiction depends on the nature of the action, i.e.,
whether the action is in personam, in rem, or quasi in
rem. [Riano citing Biaco v. Philippine Countryside
Rural Bank (2007)]
The distinction is important to determine whether or
not jurisdiction over the person of the defendant is
required and consequently to determine the type of
summons to be employed. [Riano citing Gomez v.
Court of Appeals (2004)]

Deal with the


status,
ownership or
liability of a
particular
property but
which are
intended to
operate on
these questions
only as
between the
particular
parties to the
proceedings
and not to
ascertain or
cut-off the
rights or
interest of all
possible
claimants
[Domagas v.
Jensen (2005)]
Judgment is
binding upon
particular
persons

Cause of Action
MEANING OF CAUSE OF ACTION
A cause of action is the act or omission by which a
party violates a right of another. [Rule 2, Sec.2]
ELEMENTS OF A CAUSE OF ACTION [cited in
Riano]
(a) Plaintiffs legal right;
(b) Defendants correlative obligation to respect
plaintiffs right;
(c) Defendants act/omission in violation of plaintiffs
right [Ma-ao Sugar Central v. Barrios (1947)]
(Asked in the 1997 Bar Exam).
Every ordinary civil action must be based on a cause
of action [Rule 2, Sec. 1]
A cause of action stems from the sources of
obligations under Art. 1156, CC - Law, Contract,
Quasi-contract, Acts and omissions punishable by
law and Quasi-delict. [Sagrada Orden etc v. National
Coconut Corporation (1952)]

PAGE 16

UP COLLEGE OF LAW

CIVIL PROCEDURE

RIGHT OF ACTION VERSUS CAUSE OF ACTION


[Regalado]
Right of action

Cause of action

The remedial right or


right to relief granted by
law to a party to institute
an action against a
person
who
has
committed a delict or
wrong against him
Right to sue as a
consequence of the
delict
Whether such acts give
him right of action
determined
by
substantive law

The delict or wrongful


act
or
omission
committed by
the
defendant in violation of
the primary rights of the
plaintiff

The act of dividing a single or indivisible cause of


action into several parts or claims and bringing
several actions thereon. (Regalado)
EFFECTS OF SPLITTING A CAUSE OF ACTION:

[Taken from
2011 Reviewer]
(a) 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]
(b) Filing of the 1st complaint may be pleaded in
abatement of the 2nd complaint, on the ground
of litis pendentia; or
(c) A judgment upon the merits in any of the
complaints is available as ground for dismissal of
the others based on res judicata.
(d) A MTD under Rule 16 Sec. 1(e) or (f) may be filed
in order that the complaint may be dismissed.

The delict or wrong


Determined
by
averments
in
pleading regarding
acts committed by
defendant

BAR OPERATIONS COMMISSION

the
the
the
the

BASIS:

A party may not institute more than one suit


for a single cause of action. [Rule 2, Sec. 3]

Note: There can be no right of action without a cause


of action being first established [Regalado citing
Espaol v. The Chairman of PVA (1985)]

PURPOSE [City of Bacolod v. SM Brewery (1969)]

(a) To prevent repeated litigation between the same


parties in regard to the same subject or
controversy;
(b) To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et eadem
causa (No man shall be twice vexed for one and
the same cause);
(c) To avoid the costs and expenses incident to
numerous suits.

FAILURE TO STATE A CAUSE OF ACTION


(a) There is a failure to state a cause of action if the
pleading asserting the claim states no cause of
action. This is a ground for a motion to dismiss.
[Rule 16, Sec.1(g)]
(b) It is submitted that the failure to state a cause of
action does not mean that the plaintiff has no
cause of action. It only means that the plaintiffs
allegations are insufficient for the court to know
that the rights of the plaintiff were violated by the
defendant. [Riano]
(c) There is a failure to state a cause of action if
allegations in the complaint taken together, do
not completely spell out the elements of a
particular cause of action. [Riano]
(d) A failure to state a cause of action is not the same
as an absence or a lack of cause of action. The
former refers to an insufficiency in the allegations
of the complaint while the latter refers to the
failure to prove or to establish by evidence ones
stated cause of action. [Riano]

A single act/omission can be violative of various


rights at the same time, as when the act constitutes
juridically a violation of several separate and distinct
legal obligations. However, where there is only one
delict/wrong, there is but a single cause of action
regardless of the number of rights that may have
been violated belonging to one person. The
singleness of a cause of action lies in the singleness
of the delict/wrong violating the rights of a person. If
only 1 injury resulted from several wrongful acts, only
1 cause of action arises. [Joseph v. Bautista (1989)]
For a single cause of action or violation of a right, the
plaintiff may be entitled to several reliefs. It is the
filing of separate complaints for these several reliefs
that constitutes splitting up of the cause of action
which is proscribed by Rule 2, Sec. 3 and 4. [City of
Bacolod v. SM Brewery (1969)]

TEST OF THE SUFFICIENCY OF A CAUSE OF


ACTION
Whether or not admitting the facts alleged, the court
could render a valid verdict in accordance with the
prayer of the complaint [Santos v. de Leo (2005)]

JOINDER AND MISJOINDER OF CAUSES OF


ACTION
JOINDER OF CAUSE OF ACTION: It is the assertion of as
many causes of action as a party may have against
another in one pleading alone. It is also the process

SPLITTING A SINGLE CAUSE OF ACTION AND ITS


EFFECTS
Definition: The act of instituting two or more suits on
the basis of the same cause of action. [Rule 2, Sec.4]

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CIVIL PROCEDURE

of uniting 2 or more demands or rights of action in


one action. [Riano citing Rule 2, Sec. 5 and CJS]

BAR OPERATIONS COMMISSION

only a single cause of action to maintain an


action (Regalado).

By a joinder of actions, or more properly, a joinder of


causes of action is meant the uniting of two or more
demands or rights of action in one action, the
statement of more than one cause of action in a
declaration [Ada v. Baylon (2012)]

Parties to Civil Actions


REQUIREMENTS FOR A PERSON TO BE A PARTY
TO A CIVIL ACTION:
(A) THE MUST BE EITHER [Rule 1, Sec.3]:
(1) A natural person;
(2) A juridical person;
(i) The State and its political subdivisions;
(ii) Other corporations, institutions and entities
for public interest or purpose, created by
law; and
(iii) Corporations, partnerships and associations
for private interest or purpose to which the
law grants a juridical personality, separate
and distinct from that of each shareholder,
partner or member [Art. 44, CC]
(3) An entity authorized by law.
(i) The estate of a deceased person [Limjoco v.
Intestate Estate of Fragante (1948)];
(ii) A political party incorporated under Act 1459
[now BP 68 (Corporation Code)];
(iii) A corporation by estoppel is precluded from
denying its existence and the members
thereof can be sued and be held liable as
general partners. [Riano citing Sec. 21, BP68,
The Corporation Code of the Philippines]
(iv) A contract of partnership having a capital of
P3,000.00 or more but which fails to comply
with the registration requirements is
nevertheless liable as a partnership to third
persons. [Riano citing Art. 1772 in rel. to Art.
1768, Civil Code]
(v) A registered labor union [Sec. 243, PD 442
(Labor Code)], with respect to its property.
(vi) A legitimate labor organization may sue and
be sued in its registered name. [Riano citing
Art. 2429(e), Labor Code]
(vii) The Roman Catholic Church has legal
capacity to sue. As to its properties, the
archbishop or diocese to which they belong
may be a party. [Barlin v. Ramirez (1906);
Riano citing Barlin v. Ramirez and Versoza v.
Fernandez(1926)].
(viii) A dissolved corporation may prosecute and
defend suits by or against it provided that the
suits (i) occur within three years after its
dissolution, and (ii) the suits are in
connection with the settlement and closure
of its affairs. [Riano citing Sec. 122,
Corporation Code]

PURPOSES:

To avoid a multiplicity of suits and to


expedite disposition of litigation at minimum cost
[Ada v. Baylon (2012)]
The rule however is purely permissive as the plaintiff
can always file separate actions for each cause of
action. [Baldovi v. Sarte, (1917)]
Joinder shall not include special civil actions
governed by special rules. [Ada v. Baylon (2012)]
REQUISITES [Rule 2, Sec. 5]:

(a) The party joining the causes of action must


comply with the rules on joinder of parties;
(b) The joinder shall not include special civil actions
or actions governed by special rules;
(c) Where causes of action are between the same
parties
but
pertain
to
different
venues/jurisdictions, the joinder may be allowed
in the RTC provided one of the causes of action
are within the RTCs jurisdiction and the venue
lies therein;
(d) TOTALITY RULE - Where the claims in all the
causes of action are principally for recovery of
money, the aggregate amount claimed shall be
the test of jurisdiction.
MISJOINDER OF CAUSES OF ACTION [Rule 2, Sec. 6]

(a) Misjoinder of causes of action is not a ground for

dismissal of an action. A misjoined cause of


action may, on motion or motu propio, be severed
and proceeded with separately. However, if there
is no objection to the improper joinder or the
court did not motu proprio direct a severance,
then there exists no bar in the simultaneous
adjudication of all the erroneously joined causes
of action. However, this rule exists only when the
court trying the case has jurisdiction over all of
the causes of action therein notwithstanding the
misjoinder of the same. This is because if the
court has no jurisdiction to try the misjoined
action, then the same must be severed and if not
so severed, any adjudication rendered by the
court with respect to the same would be a nullity.
[Ada v. Baylon (2012)]
(b) There is no sanction against non-joinder of

separate causes of action since a plaintiff needs

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BAR OPERATIONS COMMISSION

(B) HE MUST HAVE THE LEGAL CAPACITY TO SUE;


PARTIES TO A CIVIL ACTION
(a) Plaintiff One having interest in the matter of the
action or in obtaining the relief demanded; the
claiming party or the original claiming party and
is the one who files the complaint [Riano]; does
not exclusively apply to the original plaintiff
[Riano]; may refer to the claiming party, the
counter-claimant, the cross-claimant, or the third
(fourth, etc.)-party plaintiff [Rule 3, Sec.1]
(b) Defendant One claiming an interest in the
controversy or the subject thereof adverse to the
plaintiff. The term may also include [Rule 3, Sec 1):
(1) Unwilling Co-Plaintiff A party who should be
joined as plaintiff but whose consent cannot
be obtained. He may be made a defendant
and the reason therefore shall be stated in the
complaint. [Rule 3, Sec. 10]
(2) The original plaintiff becoming a defendant to
the original defendants counterclaim; also
refers to the cross-defendant, or the third
(fourth, etc.)-party defendant. [Rule 3, Sec 1]

(c) HE MUST BE THE REAL PARTY IN INTEREST.


[Berman v. Cheng (2005)]
(1) Only natural or juridical persons or entities
authorized by law may be parties in a civil
case.
(2) A sole proprietorship is not vested with
juridical personality and cannot sue or file or
defend an action.
(3) There is no law authorizing sole proprietorship
to file a suit.
(4) A sole proprietorship does not possess a
judicial personality separate and distinct from
the personality of the owner of the enterprise.
[Rimbunan v. Oriental (2005)]
(5) An unlicensed foreign corporation is
nonetheless permitted to bring suit in the
Philippines if it is suing on an isolated
transaction.
(6) Thus, the ascertainment of whether a foreign
corporation is merely suing on an isolated
transaction or is actually doing business in the
Philippines requires the elicitation of at least a
preponderant set of facts.

REAL PARTIES IN INTEREST; INDISPENSABLE


PARTIES; REPRESENTATIVES AS PARTIES;
NECESSARY PARTIES; INDIGENT PARTIES;
ALTERNATIVE DEFENDANTS

Note: A foreign corporation may be party to an action


in Philippine courts:
(a) If licensed to engage in business in the
Philippines, it may sue or be sued in our courts;
(b) If not licensed, it cannot sue, but it may be sued in
our courts;
(c) If not engaged in business in the Philippines, it
may sue in courts on a single isolated transaction,
but it cannot be sued in our courts on such
transaction.

REAL PARTY IN INTEREST [Rule 3, Sec.2]

(a) The party who stands to be benefited/injured by


the judgment in the suit;
(b) The party entitled to the avails of the suit.
Rules:
(a) Every action must be prosecuted or defended in
the name of the real party in interest. [Rule 3,
Sec.2]
(b) The partys interest must be direct, substantial
and material [Sumalo v. Litton (2006)].
(c) Husband and wife shall sue and be sued jointly,
except as provided by law [Rule 3, Sec. 4]
(d) 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]
(e) Minors (represented by their parents) are real
parties in interest under the principle of
intergenerational responsibility. [Oposa v.
Factoran (1993)]
(f) 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]

Note: Interest within the meaning of the Rules of


Court means material interest or an interest in issue
to be affected by the decree or judgment of the case,
as distinguished from mere curiosity about the
question involved. [Ang v. Sps. Ang (2012)]
Lack of legal capacity to
sue
The plaintiffs general
disability to sue, such as
on account of minority,
insanity, incompetence,
lack
of
juridical
personality or any other
general disqualifications
It can be a ground for a
MTD [Rule 16 (1) (d)]

Lack of legal personality


to sue
The plaintiff is not the
real party in interest

It can be used as ground


for a MTD based on the
failure of complaint to
state a cause of action.
[Rule 16 (1) (g)]

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Indispensable parties
[Rule 3, Sec. 7]
such an interest in the
controversy that a final
decree
would
necessarily affect their
rights so that the court
cannot proceed without
their presence.

INDISPENSABLE PARTIES

(a) An indispensable party is a real party-in-interest


without whom no final determination can be had
of an action. [Rule 3, Sec.7]
(b) 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]
(c) The joinder of a party becomes compulsory when
the one involved is an indispensable party. [Riano
citing Rule 3, Sec.7]
(d) 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]
(a) Those acting in fiduciary capacity, such as a
trustee/guardian/executor/administrator or a
party authorized by law or ROC.
(b) The beneficiary shall be included in the title of the
case and shall be deemed to be the real party in
interest.
(c) An agent acting in his own name and for the
benefit of an undisclosed principal may sue or be
sued without joining the principal.

INDIGENT PARTY [Rule 3, Sec. 21]

(a) indigent One who has no money or property


sufficient and available for food, shelter and basic
necessities.
(b) While the authority to litigate as an indigent party
may be granted upon an ex parte application and
hearing, it may be contested by the adverse party
at any time before judgment is rendered.

Exception: If the contract involves things belonging


to the principal. [Art. 1883, CC]
NECESSARY PARTY [Rule 3, Sec. 8]

(a) One who is not indispensable but ought to be


joined as a party if complete relief is to be
accorded as to those already parties, or for a
complete determination or settlement of the
claim subject of the action
(b) Indispensable parties v. Necessary parties [taken
from 2011 Reviewer and Riano]

No valid judgment if
indispensable party is
not joined.

They are those with

Necessary parties [Rule 3,


Sec. 8]
presence is necessary to
adjudicate the whole
controversy but whose
interests are so far
separable that a final
decree can be made in
their absence without
affecting them.

(c) Whenever in any pleading in which a claim is


asserted a necessary party is not joined, the
pleader is under obligation to: (i) set forth the
name of the necessary party, if known, and (ii)
state the reason why the necessary party is
omitted. [Riano citing Rule 3, Sec. 9 par 1]
(d) The non-inclusion of a necessary party does not
prevent the court from proceeding in the action,
and the judgment rendered therein shall be
without prejudice to the rights of such necessary
party [Rule 3, Sec. 9 par 3]

REPRESENTATIVE AS PARTIES [Rule 3, Sec. 3]

Indispensable parties
[Rule 3, Sec. 7]
Must be joined under
any and all conditions,
his presence being a
sine qua non for the
exercise of judicial
power

BAR OPERATIONS COMMISSION

If the court determines after hearing that the


party declared indigent has sufficient income or
property, the proper docket and other lawful fees
shall be assessed and collected by the clerk of
court.
(c) The authority to litigate as an indigent shall
include an exemption from:
o Payment of docket fees and other lawful
fees;
o Payment of TSN.
(d) The amount of docket and other lawful fees is a
lien on any judgment rendered in favor of
indigent party, unless court otherwise provides.

Necessary parties [Rule 3,


Sec. 8]
Should
be
joined
whenever possible; the
action can proceed even
in their absence because
their interest is separable
from
that
of
the
indispensable party
The
case
may be
determined in court but
the judgment therein will
not resolve the entire
controversy if a necessary
party is not joined
They are those whose

ALTERNATIVE DEFENDANTS [Rule 3, Sec. 13]

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.

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CIVIL PROCEDURE

COMPULSORY AND PERMISSIVE JOINDER OF


PARTIES

BAR OPERATIONS COMMISSION

What it really contemplates is erroneous or


mistaken non-joinder and misjoinder or parties.
The rule presupposes that the original inclusion
had been made in the honest conviction that it
was proper and the subsequent dropping is
requested because it has turned out that such
inclusion was a mistake. [Riano citing Lim Tan
Hua v. Ramolete(1975)]

[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
COMPULSORY JOINDER OF INDISPENSABLE PARTIES

PERMISSIVE JOINDER [Rule 3, Sec. 6]

CLASS SUIT
REQUISITES [Rule 3, Sec. 12]
(a) Subject matter of the controversy is one of
common/general interest to many persons;
(b) 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);
(c) Parties bringing the class suit are sufficiently
numerous and representative of the class and can
fully protect the interests of all concerned;
(d) The representative sues/defends for the benefit
of all.

Parties can be joined, as plaintiffs or defendants, in


one single complaint or may themselves maintain or
be sued in separate suits.
Requisites [Regalado]:
Right to relief arises out of the same transaction or
series of transactions;
Note: SERIES OF TRANSACTIONS Transactions
connected with the same subject matter of the suit.
There is a question of law or fact common to all the
plaintiffs or defendants;

Any party in interest shall have the right to intervene


to protect his individual interest. [Rule 3, Sec. 12]
If a class suit is improperly brought, the action is
subject to dismissal regardless of the cause of action
[Rule 16, Sec 1 (d)].

Such joinder is not otherwise proscribed by the rules


on jurisdiction and venue.
MISJOINDER AND NON-JOINDER OF PARTIES
(a) A party is misjoined when he is made a party to
the action although he should not be impleaded.
A party is not joined when he is supposed to be
joined but is not impleaded in the action. (Riano)
(b) Neither misjoinder nor non-joinder of parties is a
ground for dismissal of an action. [Rule 3, Sec. 11]
(c) 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]
(d) Any claim against a misjoined party may be
severed and proceeded with separately. [Rule 3,
Sec. 11]
(e) 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)].
(f) Objections to defects in parties should be made
at the earliest opportunity.
(g) The moment such defect becomes apparent, a
motion to strike the names of the parties must be
made.
(h) Objections to misjoinder cannot be raised for the
first time on appeal [Lapanday Agricultural &
Development Corporation v. Estita (2005)].
(i) The rule on misjoinder or non-joinder of parties
does not comprehend whimsical and irrational
dropping or adding of parties in a complaint.

A taxpayer's suit or a stockholder's derivative suit is


in the nature of a class suit, although subject to the
other requisites of the corresponding governing law
especially on the issue of locus standi. [Regalado]
There is no class suit in an action filed by
associations of sugar planters to recover damages in
behalf of individual sugar planters for an allegedly
libelous article in an international magazine. There is
no common or general interest in reputation of a
specific individual. Each of the sugar planters has a
separate and distinct reputation in the community
not shared by the others. [Riano citing Newsweek,
Inc. v. Intermediate Appellate court (1986)]
A class suit does not require a commonality of
interest in the questions involved in the suit. What is
required by the Rules is a common or general
interest in the subject matter of the litigation. [Riano
citing Mathay v. Consolidated Bank &Trust Company
(1974)]
Class Suit
There is a single cause of
action pertaining to
numerous persons.

PAGE 21

Permissive Joinder of
Parties
There
are
multiple
causes
of
action
separately belonging to
several persons.

UP COLLEGE OF LAW

CIVIL PROCEDURE

CLASS SUIT AND DERIVATIVE SUIT, COMPARED

Counsels duty:
(a) Inform court within 30 days after such death of
the fact thereof;
(b) Give the name and address of the legal
representatives.

(Asked in the 2005 Bar Examination)


Class Suit

Derivative Suit

When the subject matter


of the controversy is one
of common or general
interest to many persons,
and the parties are so
numerous that it is
impracticable to bring
them all before the
court, one or more may
sue or defend for the
benefit of all. [Rule 3,
Sec. 12]

An action brought by
minority shareholders in
the name of the
corporation to redress
wrongs
committed
against it, for which the
directors refuse to sue.

BAR OPERATIONS COMMISSION

Note: Failure to comply with this duty is a ground for


disciplinary action.
(a) The heirs may be substituted for the deceased
without requiring the appointment of an executor
or administrator.

It is a remedy designed
by equity and has been
the principal defense of
the
minority
shareholders
against
abuses by the majority.

(b) The court may appoint a guardian ad litem for the


minor heirs.

In a derivative action, the


real party in interest is
the corporation itself, not
the shareholders who
actually instituted it [Lim
v. Lim Yu (2001))

(d) If no legal representative is named or if the one so


name shall fail to appear within the specified
period, the court may order the opposing party to
procure the appointment of an executor or
administrator for the estate.

(c) The court shall order the legal representative(s)


to appear and be substituted within 30 days from
notice.

(e) The substitute defendant need not be


summoned. The order of substitution shall be
served upon the parties substituted for the court
to acquire jurisdiction over the substitute party
[Ferreria v Vda de Gonzales (1986)].

SUITS AGAINST ENTITIES WITHOUT JURIDICAL


PERSONALITY
REQUISITES [Rule 3, Sec.15]
(a) There are 2 or more persons not organized as a
juridical entity;
(b) They enter into a transaction;
(c) A wrong is committed against a 3rd person in the
course of such transaction.

Death or separation of a party who is a public officer


[Rule 3, Sec. 17]
Requisites:
(a) Public officer is a party to an action in his official
capacity;
(b) During the pendency of the action, he either
dies/resigns or otherwise ceases to hold office;
(c) It is satisfactorily shown to the court by any party,
within 30 days after the successor takes office,
(1) that there is a substantial need to
continue/maintain the action and
(2) The successor adopts/continues (or threatens
to do so) his predecessors action
(d) The party or officer affected was given reasonable
notice of the application therefore and accorded
an opportunity to be heard.

Effect: Persons associated in an entity without


juridical personality may be sued under the name by
which they are generally/commonly known, but they
cannot sue under such name. [Rule 3, Sec. 15]
The service of summons may be effected upon all the
defendants by serving upon any of them, or upon the
person in charge of the office or place of business
maintained under such name. [Rule 14, Sec. 8]
EFFECT OF DEATH OF PARTY LITIGANT
SUBSTITUTION OF PARTIES

Death of a party, where the claim is not extinguished


by the death of the party (e.g. cases involving
property and property rights [Bonilla v Barcena
(1976)]); [Rule 3, Sec. 16] (Asked in the 1998 and 1999
Bar Exams)

ACTION ON CONTRACTUAL MONEY CLAIMS

20]

[Rule 3, Sec.

Requisites:
(a) The action must primarily be for recovery of
money/debt or interest thereon;
(b) The claim arose from express/implied contract;

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CIVIL PROCEDURE

(c) Defendant dies before the entry of final judgment


in the court in which the action was pending.
(1) The defendants death will not result in the
dismissal of the action.
(2) The deceased shall be substituted by his legal
representatives in the manner provided for in
Rule 3, Sec. 16, and the action will continue
until the entry of final judgment (Asked in the
2000 Bar Exam)
(3) However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.

General rule: The rule does not consider the


transferee an indispensable party. Hence, the action
may proceed without the need to implead him.

The case will be dismissed if the plaintiffs interest is


transferred to defendant unless there are several
plaintiffs, in which case the remaining plaintiffs can
proceed with their own cause of action.

Venue
Venue is the place, or the geographical area where
an action is to be filed and tried. In civil cases, it
relates only to the place of the suit and not to the
jurisdiction of the court. [Riano citing Manila Railroad
Company v. Attorney General (1911)]

VENUE VERSUS JURISDICTION [Riano]


DISTINCTIONS BETWEEN VENUE AND JURISDICTION

(Asked in the 2006 and 2008 Bar Exams)

Power of the court to


hear and decide a case
Jurisdiction over the
subject matter and over
the nature of the action
is conferred by law and
cannot-be waived

Procedural
May be changed by the
written agreement of the
parties

Substantive
Is fixed by law and
cannot be the subject of
the agreement of the
parties
Establishes a relation
between the court and
the subject matter
Lack of jurisdiction over
the subject matter is a
ground for a motu
proprio dismissal.

VENUE OF PERSONAL ACTIONS


At the plaintiffs election: [Rule 4, Sec. 2]
(a) Where the plaintiff or any of the principal
plaintiffs resides;
(b) Where the defendant or any of the principal
defendants resides;
(c) In case of a non-resident-defendant, where he
may be found.

Choosing the venue of an action is not left to a


plaintiffs caprice; the matter is regulated by the
Rules of Court. [Ang v. Sps. Ang (2012)]

Place where the action is


instituted
May be waived

Jurisdiction

VENUE OF REAL ACTIONS


(a) Shall be commenced and tried in the proper court
which has jurisdiction over the area wherein the
real property involved, or a portion thereof is
situated. [Rule 4, Sec. 1(1)]
(b) Forcible entry and detainer actions shall be
commenced and tried in the municipal court of
the municipality or city wherein the real property
involved, or a portion thereof, is situated. [Rule 4,
Sec. 1(2)]
(c) If the property is located at the boundaries of 2
places, file the case in either place (at the
plaintiffs option).
(d) If the case involves 2 properties located in 2
different places:
(1) If the properties are the object of the same
transaction, file it in any of the 2 places;
(2) If they are the objects of 2 distinct
transactions, separate actions should be filed
in each place unless properly joined.

Exception: When the substitution by or joinder of the


transferee is ordered by court.

Jurisdiction

Venue

Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent
Not a ground for a motu
propio dismissal (except
in cases of summary
procedure; Rule 4, Rule
on Summary Procedure)

TRANSFER OF INTEREST DURING THE PENDENCY OF THE


ACTION [Rule 3, Sec. 19]

Venue

BAR OPERATIONS COMMISSION

Note: The plaintiff or the defendant must be


residents of the place where the action has been
instituted at the time the action is commenced. [Ang
v. Sps. Ang (2012)]

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BAR OPERATIONS COMMISSION

VENUE OF ACTIONS AGAINST NON-RESIDENTS


[Rule 5, Sec. 3]

[Regalado, citing Hoechst Philippines v Torres


(1978)].

Non-resident found in the Philippines


(a) For personal actions Where the plaintiff resides;
(b) For real actions Where the property is located.

OTHER RULES ON VENUE


(a) Improper Venue: The Court may not motu propio
dismiss an action on the ground of improper
venue. [Dacoycoy v. IAC (1991)]

Non-resident not found in the Philippines An action


may be filed only when the case involves:
(a) Personal status of plaintiff - Where plaintiff
resides;
(b) Any property of said defendant located in the
Phil. - Where the property (or any portion thereof)
is situated/found.

Exception: In summary procedures.


(b) Change of Venue: The SC has the power to
change the venue to prevent a miscarriage of
justice. [Art. 8, Sec. 5, Consti]
(c) Waiver Of Venue:
(1) Until and unless the defendant objects to the
venue in a motion to dismiss prior to a
responsive pleading, the venue cannot truly be
said to have been improperly laid since for all
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. Although venue is mandatory, it is
waivable. [Diaz v. Adiong (1993)]
(2) Means of waiving venue:
(i) Where parties validly agreed in writing
before the filing of the action on the
exclusive venue thereof [Rule 4, Sec 4 (b)];
and
(ii) Failure to raise improper venue as
affirmative defense or in motion to dismiss

WHEN THE RULES ON VENUE DO NOT APPLY


[Rule 4, Sec. 4]
(a) If a specific rule/law provides otherwise (e.g.
action for damages arising from libel);
(b) Stipulations as to Venue is permitted if the parties
have validly agreed
(1) in writing
(2) before the filing of the action
(3) on the exclusive venue
In the absence of qualifying restrictive words (e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue provided
for in the rules. [Polytrade Corp. v. Blanco (1969)]
The mere stipulation on the venue of an action,
however, is not enough to preclude parties from
bringing a case in other venues. The parties must be
able to show that such stipulation is exclusive. In the
absence of qualifying or restrictive words, the
stipulation should be deemed as merely an
agreement on an additional forum, not as limiting
venue to the specified place. [Riano citing Spouse
Lantin v. Lantion, (2006)]

Pleadings
DEFINITION
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]

EFFECTS OF STIPULATIONS ON VENUE


(a) To be binding, the parties must have agreed on
the exclusive nature of the venue of any
prospective action between them. The agreement
of parties must be restrictive and not permissive.
[Regalado]
(b) In the absence of qualifying restrictive words (e.g.
only/solely/exclusively in such court), venue
stipulation is merely permissive; that is, the
stipulated venue is in addition to the venue
provided for in the rules. [Polytrade Corp. v.
Blanco (1969)]
(c) The court may declare agreements on venue as
contrary to public policy if such stipulation
unjustly denies a party a fair opportunity to file
suit in the place designated by the Rules

Pleading

Motion

Purpose: To submit a
claim/defense
for
appropriate judgment
May be initiatory

Purpose: To apply for an


order not included in the
judgment
Cannot be initiatory as
they are always made in
a case already filed in
court.
May be filed even after
judgment

Always
filed
judgment

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KINDS OF PLEADINGS
PLEADINGS ALLOWED [Rule 6, Sec. 2]
(1) Complaint;
(2) Answer;
(3) Counterclaim;
(4) Cross-claim;
(5) 3rd-party Complaint,
(6) Complaint-in-intervention;
(7) Reply;

BAR OPERATIONS COMMISSION

ANSWER [Rule 6, Sec. 4]

Definition
The pleading where the defendant sets forth his
affirmative/negative defenses. It may also be the
response to a counterclaim or a cross-claim.
Two kinds of defenses that may be set forth in the
answer [Rule 6, Sec. 5]
(a) Negative Defenses Specific denials of the
material facts alleged in the pleading of the
claimant essential to his cause of action.

COMPLAINT [Rule 6, Sec. 3]

Definition
The pleading alleging the plaintiffs cause/s of
action. It should contain a concise statement of the
ultimate facts constituting the plaintiffs cause/s of
action, not evidentiary facts or legal conclusions.

Negative Pregnant - Denial pregnant with an


admission. It is a denial pregnant with the
admission of the substantial facts in the pleading
responded to which are not squarely denied. It is
in effect an admission of the averment it is
directed to. [Philamgen v. Sweet Lines (1993)]

It shall contain:
(a) in a methodical and logical form
(b) a plain, concise and direct statement of ultimate
facts on which the plaintiff relies for his claim,
(c) omitting statement of mere evidentiary facts.
[Rule 8, Sec. 1]

(b) Affirmative Defenses Allegations of new matters


which, while hypothetically admitting the
material allegations in the claimants pleading,
would nevertheless prevent/bar recovery by him.
It includes fraud, prescription, release, payment
and any other matter by way of confession and
avoidance.

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.

COUNTERCLAIMS [Rule 6, Sec. 6]

It should inform the defendant of all material facts


on which the plaintiff relies to support his demand.

Definition
Any claim which a defending party may have against
an opposing party.
(a) A counterclaim is in the nature of a crosscomplaint. Although it may be alleged in the
answer, it is not part of the answer.
(b) Upon its filing, the same proceedings are had as
in the original complaint.
(c) For this reason, it must be answered 10 days from
service [Rule 11, Sec 4] (Asked in the 2002 and
2008 Bar Exams).

It should state the theory of a cause of action which


forms the bases of plaintiffs claim of liability.
[Tantuico v. Republic (1991)]
Ultimate Facts Essential facts constituting the
plaintiffs cause of action. A fact is essential if it
cannot be stricken out without leaving the statement
of the cause of action insufficient. [Remitere v.
Montinola (1966)]

How to raise counterclaims


Included in the answer:
A compulsory counterclaim or a cross-claim that a
defending party has at the time he files his answer
shall be contained therein. [Rule 11, Sec. 8]

Not ultimate facts:


(a) Evidentiary or immaterial facts;
(b) Legal conclusions, conclusions or inferences of
facts from facts not stated, or incorrect inferences
or conclusions from facts stated;
(c) Conclusions of law alleged in the complaint are
not binding on the court.
(d) The details of probative matter or particulars of
evidence, statements of law, inferences and
arguments.

Exception: Pleadings may be amended under Rule 11,


Sec. 10:
(a) By leave of court;
(b) Before judgment;
(c) On the grounds of:
(1) Oversight;
(2) Inadvertence;
(3) Excusable neglect;
(4) When justice requires.

Test of sufficiency of the facts alleged in the


complaint: WON upon the averment of facts, a valid
judgment may be properly rendered [Pamintan v.
Costales (1914)].

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After the answer [Rule 11, Sec. 9]


(a) Counterclaims/cross-claims arising after the
answer,
(b) with the courts permission,
(c) may be presented as a counterclaim/cross-claim
by supplemental pleading before judgment.

(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 3rd 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)]

Rules on counterclaims
(a) In an original action before the RTC, the
counterclaim may be considered compulsory
regardless of the amount. [Rule 6, Sec. 7]
(b) 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.
(c) 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.

General rule: A compulsory counterclaim not set up in


the answer is deemed barred.
Exception: 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]
Note:
(a) The filing of a MTD and the setting up of a
compulsory counterclaim are incompatible
remedies.
(b) In the event that a defending party has a ground
for dismissal and a compulsory counterclaim at
the same time, he must choose only one remedy.
(c) If he decides to file a MTD, he will lose his
counterclaim. But if he opts to set up his
counterclaim, he may still plead his ground for
dismissal as an affirmative defense in his answer.
(d) If any of the grounds to dismiss under Rule 17,
Sec. 3 arise, the proper recourse for a defendant
who desires to pursue his compulsory
counterclaim in the same proceeding is not a
MTD.
(e) Instead, he should only move to have the plaintiff
declared non-suited on the complaint so that the
latter can no longer present his evidence thereon,
and simultaneously move that he be declared as
in default on the compulsory counterclaim, and
reserve the right to present evidence ex parte on
his compulsory counterclaim. [BA Finance v. Co
(1993)]

Kinds of counterclaims
Compulsory counterclaim

Permissive 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.
Need not be answered;
no default.

It does not arise out of


nor is it necessarily
connected with the
subject matter of the
opposing party's claim.

BAR OPERATIONS COMMISSION

May require for its


adjudication
the
presence of third parties
over whom the court
cannot
acquire
jurisdiction.
Not barred even if not
set up in the action.
Must
be
answered,
otherwise, the defendant
can be declared in
default.
(a) A permissive counterclaim requires the payment
of docket fees. [Sun Insurance v. Asuncion (1989)]
(b) A plaintiff who fails or chooses not to answer a
compulsory counterclaim may not be declared in
default, principally because the issues raised in
the counterclaim are deemed automatically
joined by the allegations in the complaint. [Gojo v.
Goyala (1970)]

Permissive counterclaim
[NOTE: Please also refer to table comparing
compulsory and permissive counterclaims]
Test to determine whether a counterclaim is
compulsory or permissive
Logical Relationship Test: Where conducting separate
trials of the respective claims would entail
substantial duplication of effort and time and
involves many of the same factual and legal issues.
[Meliton v. CA (1992)]

Compulsory counterclaim
Requisites of a compulsory counterclaim [Rule 6, Sec
7] (Asked in the 1998 bar exam)

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Effect on the Counterclaim when the complaint is


dismissed
Under Section 3, Rule 17, dismissal of action due to
plaintiffs fault shall be without prejudice to the
defendants right to prosecute his counterclaim in
the same/separate action.

BAR OPERATIONS COMMISSION

(b) Counter-Cross-claim - A claim filed against an


original cross-claimant.
THIRD (FOURTH, ETC.) PARTY COMPLAINTS

[Rule 6, Sec.
11]
[NOTE: See also table in immediately preceding
subsection]

CROSS-CLAIMS [Rule 6, Sec. 8]

Requisites for cross-claim


(a) A claim by one party against a co-party;
(b) It must arise out of the subject matter of the
complaint or of the counterclaim;
(c) The cross-claimant is prejudiced by the claim
against him by the opposing party.

Definition: It is a claim that a defending party may,


with leave of court, file against a person not a party
to the action for contribution, indemnity, subrogation
or any other relief, in respect of his opponent's claim.
th

There could also be a 4 /etc.-party complaint with


the same purpose and function.

General rule: A cross-claim is always compulsory. A


cross-claim not set up shall be barred. [Rule 9, Sec.
2]

3rd-party complaint

Exceptions:
(a) When it is outside the courts jurisdiction;
(b) If the court cannot acquire jurisdiction over 3rd
parties whose presence is necessary for the
adjudication of said cross-claim. In this case, the
cross-claim is considered permissive.

Brings into the action a


3rd person who was not
originally a party
Initiative is with the
person already a party to
the action

The dismissal of the complaint carries with it the


dismissal of a cross-claim which is purely
defensive, but not a cross-claim seeking an
affirmative relief. [Torres v. CA (1973)]
Cross Claim, Counterclaim and Third Party Complaint
(Asked in the 1997 and 1999 Bar Exams)
rd
Cross-claim
Counterclaim
3 Party
complaint
Against a co- Against
an Against
a
party
opposing party
person not a
party to the
action
Must
arise May arise out of or Must be in
out of the be
necessarily respect of the
transaction
connected
with opponents
that is the the transaction or (plaintiffs)
subject
the subject matter claim
matter of the of the opposing
original
partys
claim
action or of a (compulsory
counterclaim counterclaim), or it
therein
may
not
(permissive
counterclaim)

Complaint in intervention
Same
Initiative is with a nonparty who seeks to join
the action

3rd-party complaint

Counterclaim

Need not be within the


jurisdiction of the court
trying the main case
Diminishes/defeats the
recovery sought by the
opposing party

Must be within the


jurisdiction of the court
trying the main case
Need
not
diminish/defeat
the
recovery sought by the
opposing party
May exceed in amount
or be different in kind
from that sought in the
original complaint

Cannot
exceed
the
amount stated in the
original complaint

Tests to determine whether the 3rd-party complaint is


in respect of plaintiff's claim [Capayas v. CFI (1946)]
(a) WON it arises out of the same transaction on
which the plaintiff's claim is based, or although
arising out of another/different transaction, is
connected with the plaintiffs claim;
(b) WON the 3rd-party defendant would be liable to
the plaintiff or to the defendant for all/part of the
plaintiffs claim against the original defendant;
(c) WON the 3rd-party defendant may assert any
defenses which the 3rd-party plaintiff has or may
have to the plaintiffs claim.

Counter-counterclaims and counter-cross-claims


[Rule 6, Sec. 9]
(a) Counter-Counterclaim - A claim asserted against
an original counter-claimant.

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Note:
(a) Leave of court to file a 3rd-party complaint may
be obtained by motion under Rule 15.
th
(b) Summons on 3rd (4 /etc.) party defendant
must be served for the court to obtain jurisdiction
over his person, since he is not an original party.
(c) Where the trial court has jurisdiction over the
main case, it also has jurisdiction over the 3rdparty 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)]
rd
(d) A 3 -party complaint is not proper in an action
for declaratory relief.

BAR OPERATIONS COMMISSION

(c) It is not an absolute right as it can be secured


only in accordance with the terms of applicable
statute or rule. [Office of Ombudsman v.
Samaniego (2010)]
Requisites for valid intervention
(a) There must be a motion for intervention filed
before rendition of judgment by the trial court.
(b) Movant must show in his motion that he has a:
(1) legal interest in (1) the matter of litigation, (2)
the success of either of the parties in the
action or (3) against both parties.
(2) that the movant is so situated as to be
adversely affected by a distribution or other
disposition of property in the custody of the
court or an officer thereof
(3) that the intervention must not unduly delay or
prejudice the adjudication of the rights of the
original parties and that the intervenors rights
may not be fully protected in a separate
proceeding.

COMPLAINT-IN-INTERVENTION

Pleadings in intervention [Rule 19, Sec. 3]


(a) Complaint-in-intervention If intervenor asserts a
claim against either or all of the original parties.
(b) Answer-in-intervention If intervenor unites with
the defending party in resisting a claim against
the latter.

Meaning of legal interest


Interest must be of a direct and immediate character
so that the intervenor will either gain or lose by the
direct legal operation of the judgment. The interest
must be actual and material, a concern which is
more than mere curiosity, or academic or
sentimental desire; it must not be indirect and
contingent, indirect and remote, conjectural,
consequential or collateral. [Virra Mall Tenants v.
Virra Mall (2011)]

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.
Its purpose is "to settle in one action and by a single
judgment the whole controversy (among) the
persons involved." [First Philippine Holdings v.
Sandiganbayan (1996); Rule 19]

Remedy for denial of motion for intervention


(a) The movant may file a motion for reconsideration
since the denial of a motion for intervention is an
interlocutory order.
(b) Alleging grave abuse of discretion, movant can
also file a certiorari case.

When allowed
Intervention shall be allowed when a person has:
(a) a legal interest in the matter in litigation;
(b) or in the success of any of the parties;
(c) or an interest against the parties; and
(d) when he is so situated as to be adversely affected
by a distribution or disposition of property in the
custody of the court or of an officer thereof. [First
Philippine Holdings v. Sandiganbayan (1996)]
Not an independent action
Intervention is not an independent action, but is
ancillary and supplemental to an existing
litigation.
[First
Philippine
Holdings
v.
Sandiganbayan (1996)]
(a) It is neither compulsory nor mandatory but only
optional and permissive. [Mabayo v. CA (2002)]
(b) The Court has full discretion in permitting or
disallowing intervention, which must be exercised
judiciously and only after consideration of all the
circumstances obtaining in the case. [Mago v. CA
(1999)]

REPLY [Rule 6, Sec. 10]

Definition: The plaintiffs response to the defendant's


answer,
(a) 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
(b) thereby join or make issue as to such new
matters.
Effect of failure to reply (Asked in the 2000 bar
exam)
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.

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Exception: Reply is required:


(a) Where the answer is based on an actionable
document. [Rule 8, Sec. 8]
(b) Where the answer alleges the defense of usury.
[Rule 8, Sec. 11]

BAR OPERATIONS COMMISSION

The defendant may also elect to file a counterclaim


against the plaintiff that does not arise out of the
same transaction or occurrence, provided that the
amount and nature thereof are within the coverage
of this Rule and the prescribed docket and other
legal fees are paid.

PLEADINGS ALLOWED IN SMALL CLAIM CASES


AND CASES COVERED BY THE RULES ON
SUMMARY PROCEDURE
Under the Revised Rules on Summary Procedure the
only pleadings allowed to be filed are [Sec. 3]:
(a) complaints;
(b) compulsory counterclaims and cross-claims
pleaded in the answer; and
(c) the answers thereto.

Note: Courts decision shall be contained in Form 13SCC


PROHIBITED PLEADINGS AND MOTIONS:

(a) Motion to dismiss the complaint except on the


ground of lack of jurisdiction;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for reopening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits, or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(h) Motion to declare the defendant in default;
(i) Dilatory motions for postponement;
(j) Reply;
(k) Third-party complaints; and
(l) Interventions.
PARTS OF A PLEADING [Rule 7, Secs. 1 to 3]

PROHIBITED PLEADINGS, MOTIONS OR PETITIONS

[Sec.
19]:
(a) Motion to dismiss the complaint or to quash the
complaint or information except on the ground of
lack of jurisdiction over the subject matter, or
failure to comply with required barangay
conciliation proceedings;
(b) Motion for a bill of particulars;
(c) Motion for new trial, or for reconsideration of a
judgment, or for opening of trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings,
affidavits or any other paper;
(f) Petition for certiorari, mandamus, or prohibition
against any interlocutory order issued by the
court;
(g) Motion to declare the defendant in default;
(h) Dilatory motions for postponement;
(i) Reply;
(j) Third party complaints; and
(k) Interventions.

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.
(a) Paragraphs must be numbered, and each
paragraph number must contain a single set of
circumstances
(b) Headings: if more than one cause of action, use
"1st cause of action," 2nd cause of action," etc.
(c) Specify relief sought, but it may add a general
prayer for such further/other relief as may be
deemed just/equitable.
(d) Every pleading shall be dated.

FORMS USED UNDER THE RULE OF PROCEDURE UNDER


SMALL CLAIMS CASES:

(a) Instead of filing complaint, a Statement of Claim


using Form 1-SCC shall be filed [Sec. 5]
(b) Answer shall be filed by way of a Response using
Form 3-SCC [Sec. 10]
(c) Defendant may file counterclaim if he possesses
a claim against the plaintiff that
(1) is within the coverage of this Rule, exclusive of
interest and costs;
(2) arises out of the same transaction or event
that is the subject matter of the plaintiffs
claim;
(3) does not require for its adjudication the
joinder of third parties; and
(4) is not the subject of another pending action,
the claim shall be filed as a counterclaim in
the Response; otherwise, the defendant shall
be barred from suit on the counterclaim.

SIGNATURE AND ADDRESS

Pleading must be signed by the party/counsel. State


address (not PO box) in either case.
VERIFICATION AND CERTIFICATION
SHOPPING [Rule 7, Sec. 4]

AGAINST

FORUM

Verification
Pleadings need not be verified, unless otherwise
provided by the law/rules.

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BAR OPERATIONS COMMISSION

(2) in order that the litigant may have ample


opportunity to prove their respective claims,
and possible denial of substantial justice, due
to technicalities, may be avoided. [Gerales v.
CA (1993)]

How a Pleading is Verified [Rule 7, Sec 4]


By an affidavit:
(a) That the affiant read the pleading;
(b) That the allegations therein are true and correct
of his personal knowledge or based on authentic
documents.

Requirements of a corporation executing the


verification/certification of non-forum shopping
Only individuals vested with authority by a valid board
resolution may sign the certificate of non-forum
shopping in behalf of a corporation. In addition, the
Court has required that proof of said authority must
be attached. Failure to provide a certificate of nonforum shopping is sufficient ground to dismiss the
petition. Likewise, the petition is subject to dismissal
if a certification was submitted unaccompanied by
proof of the signatorys authority. [PAL v. FASAP
(2006)]

Certification of Non-Forum Shopping (CNFS) [Rule 7,


Sec. 5]
Definition: The filing of multiple suits in different
courts, simultaneously or successively, involving the
same parties, to ask the courts to rule on the
same/related causes and/or to grant the same or
substantially the same relief. [T'Boli Agro-Industrial
Development, Inc. (TADI) v. Solidapsi (2002)] (Asked
in the 2006 Bar Exam)
Test to Determine WON there is Forum Shopping
(ASKED IN THE 2002 BAR EXAM) - WON in the 2 or
more cases pending, there is identity of:
(a) Parties;
(b) Rights or causes of action;
(c) Relief sought.

EFFECT OF THE SIGNATURE OF COUNSEL IN A PLEADING

(a) Counsels signature is a certification that:


(1) He has read the pleading;
(2) To the best of his knowledge, information and
belief there is good ground to support it;
(3) It is not interposed for delay.
(b) An unsigned pleading produces no legal effect.
(c) However, the court may allow such deficiency to
be remedied if it shall appear that the same was
due to inadvertence and not intended for delay.

The CNFS is to be executed by the petitioner, not by


the counsel.
CNFS is required only for complaints or initiatory
pleadings (e.g. permissive counterclaim, cross-claim
etc.).

ALLEGATIONS IN A PLEADING

CNFS is not required in a compulsory counterclaim.


A counterclaim is not an initiatory pleading. [UST
Hospital v. Surla (1998)]

MANNER OF MAKING ALLEGATIONS

In general [Rule 8, Sec. 1]


(a) In a methodical and logical form.
(b) Plain, concise and direct statement of the
ultimate facts on which the party pleading relies
for his claim/defense.
(c) Omit evidentiary facts.
(d) If defense relied on is based on law, cite the
provisions and their applicability.

The lack of certification against forum shopping is


not curable by mere amendment of a complaint, but
shall be a cause for the dismissal of the case without
prejudice. The general rule is that subsequent
compliance with the requirements will not excuse a
party's failure to comply in the first
instance. [Ramirez v. Mar Fishing (2012)]

Condition precedent - a general averment of the


performance or occurrence of all conditions
precedent shall be sufficient [Rule 8, Sec. 3]

Effect of Submission of False CNFS or NonSubmission of CNFS


(a) Indirect contempt;
(b) Administrative and criminal actions.

Fraud, mistake, malice, intent, knowledge and other


condition of the mind, judgments, official documents
or acts - Circumstances constituting fraud or mistake
must be stated with particularity while malice, intent,
knowledge or other condition of the mind of a person
may be averred generally [Rule 8, Sec. 5]

Effect of Willful and Deliberate Forum Shopping


(Asked in the 2006 and 2007 Bar Exams)
(a) Ground for summary dismissal of the case with
prejudice;
(b) Direct contempt and administrative sanctions.
(1) Pleadings as well as remedial laws should be
liberally construed

Facts that may be Averred Generally


(a) Conditions precedent; but there must still be an
allegation that the specific condition precedent
has been complied with, otherwise it will be

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dismissed for lack of cause of action; [Rule 8, Sec.


3]
(b) Capacity to sue or be sued;
(c) Capacity to sue or be sued in a representative
capacity; [Rule 8, Sec. 4]
(d) Legal existence of an organization;
A party desiring to raise an issue as to the legal
existence or capacity of any party to sue or be
sued in a representative capacity shall do so by
specific denial which shall include supporting
particulars within the pleader's knowledge. [Rule
8, Sec 4]
(e) Malice/intent/knowledge or other condition of the
mind; [Rule 8, Sec. 5]
(f) Judgments of domestic/foreign courts, tribunals,
boards or officers (without need to show
jurisdiction); [Rule 8, Sec. 6]
(g) Official documents/acts. [Rule 8, Sec. 9]
Facts that must be Averred Particularly
Circumstances showing fraud/mistake
averments of fraud/mistake [Rule 8, Sec. 5]

in

BAR OPERATIONS COMMISSION

(3) Disavowal of knowledge by an allegation of lack


of knowledge or information sufficient to form a
belief as to the truth of the averment in the
opposing party's pleading. This does not apply
where the fact as to which want of knowledge is
asserted is, to the knowledge of the court, so
plain and necessarily within the defendant's
knowledge that his averment of ignorance must
be palpably untrue.
Note:
General rule: Allegations not specifically denied are
deemed admitted [Rule 8, Sec. 11]
Exceptions:
(a) Allegations as to the amount of unliquidated
damages;
(b) Allegations immaterial to the cause of action;
(c) Allegations of merely evidentiary or immaterial
facts may be expunged from the pleading or may
be stricken out on motion. [Rule 8, Sec. 12]
(d) Conclusion of law.

all

PLEADING AN ACTIONABLE DOCUMENT

Actionable document
A document which is really the basis of the cause of
action (or defense), and not merely evidentiary
thereof. [Rule 8, Sec. 7]

Kinds of denial (Asked in the 2004 Bar Exam)


(a) Specific denial Specifies each material
allegation of fact the truth of which he does not
admit, and sets forth the substance of the
matters upon which he relies to support his
denial. [Rule 8, Sec. 10]
(b) Denial with qualification - Specifies so much of it
as is true and material, and deny the remainder.
(c) Specific denial for lack of knowledge/information
sufficient to form as belief as to the truth of a
material averment made in the complaint.
(d) Specific denial under oath - Contests the
authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]

Genuineness and due execution of an actionable


instrument shall be deemed admitted unless the
adverse party, under oath, specifically denies them,
and sets forth what he claims to be the facts. [Rule
8, Sec. 8]
Exception to the requirement of an oath: when the
adverse party does not appear to be a party to the
instrument. [Donato v. CA (1993)]
How an action or defense may be based on a
document:
(a) By copying a substantial portion of the document
into the pleading;
(b) By annexing /incorporating the document into
the pleading;
(c) By both copying and annexing document into the
pleading.

Disciplinary Action on Counsel Regarding Pleadings


[Rule 7, Sec. 3]
(a) Deliberately filing an unsigned pleading;
(b) Deliberately signing a pleading in violation of the
Rules;
(c) Alleging scandalous/Indecent matter in the
pleading;
(d) Failing to promptly report a change of his
address.

SPECIFIC DENIALS

Three Ways of Making a Specific Denial


(1) Specific absolute denial by specifically denying
the averment and, whenever practicable, setting
forth the substance of the matters relied upon for
such denial.

Effect of failure to make specific denials


General rule: Defenses and objections not pleaded
either in a MTD or in the answer, are deemed waived.
[Rule 9, Sec. 1]
Exceptions:
(a) Lack of jurisdiction over the subject matter;
(b) Litis pendentia;

(2) Partial specific denial part admission and part


denial;

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(c) Res judicata;


(d) Prescription

BAR OPERATIONS COMMISSION

WHEN A DECLARATION OF DEFAULT IS PROPER

(a) Court validly acquired jurisdiction over the


defendants person, either by service of summons
or voluntary appearance;
(b) Defendant fails to answer within the time allowed
therefor;
(c) Motion to declare the defendant in default;
(d) Notice to the defendant by serving upon him a
copy of such motion;
(e) Proof of such failure to answer.

When a specific denial requires an oath - Contests the


authenticity or due execution of an actionable
document. [Rule 8, Sec. 8]
EFFECT OF FAILURE TO PLEAD
FAILURE TO PLEAD DEFENSES AND OBJECTIONS

General rule: Defenses and objections not pleaded in


answer or motion to dismiss are deemed waived.
(Omnibus Motion Rule) [Rule 9]

(Asked in the 1999


Bar Exam) [Rule 9, Sec 3(a)]
A defendant who fails to file an answer may, upon
motion, be declared by the court in default. Loss of
standing in court, the forfeiture of ones right as a
party litigant, contestant or legal adversary, is the
consequence of an order of default. A party in
default loses his right to present his defense, control
the proceedings, and examine or cross-examine
witnesses. He has no right to expect that his
pleadings would be acted upon by the court nor may
be object to or refute evidence or motions filed
against him. [Ortero v. Tan (2012)]
EFFECT OF AN ORDER OF DEFAULT

Exceptions:
(a) Lack of jurisdiction over the subject matter;
(b) Litis pendentia between same parties for the
same cause
(c) Res judicata
(d) Action barred by statute of limitations.
FAILURE TO PLEAD A COMPULSORY COUNTERCLAIM AND
CROSS-CLAIM

Compulsory counterclaim
General Rule: A compulsory counterclaim not set up
is considered barred. [Rule 9, Sec. 2]

The court shall proceed to render judgment granting


the claimant relief as his pleading may warrant,
unless the court in its discretion requires the
claimant to submit evidence. Such reception of
evidence may be delegated to the clerk of court.

Exception: If due to oversight, inadvertence,


excusable neglect, etc. the compulsory counterclaim,
with leave of court, may be set up by amendment
before judgment. [Rule 11, Sec. 10]

The party in default shall be entitled to notice of


subsequent proceedings but not to take part in the
trial.
(a) A defendant declared in default cannot take part
in the trial, but he cannot be disqualified from
testifying as a witness in favor of non-defaulting
defendants. [Cavili v. Florendo (1987)]
(b) A party in default is entitled to notice of:
(1) Motion to declare him in default;
(2) Order declaring him in default;
(3) Subsequent proceedings;
(4) Service of final orders and judgments.

Cross-claim
A cross-claim is always compulsory. A cross-claim
not set up shall be barred. [Rule 9, Sec. 2]
DEFAULT [Rule 9, Sec. 3]
Definition: Failure of the defendant to answer within
the proper period. It is not his failure to appear nor
his failure to present evidence (Asked in the 2000
and 2001 Bar Exams)
Order of default

Judgment by default

Issued by the court on


plaintiffs motion, for
failure of the defendant
to file his responsive
pleading seasonably
Interlocutory
-Not
appealable

Rendered by the court


following a default order
or after it received ex
parte plaintiffs evidence

Note: A defending party declared in default retains


the right to appeal from the judgment by default.
However, the grounds that may be raised in such an
appeal are restricted to any of the following:
(a) the failure of the plaintiff to prove the material
allegations of the complaint;
(b) the decision is contrary to law; and
(c) the amount of judgment is excessive or different
in kind from that prayed for. [Ortero v. Tan (2012)]

Final Appealable

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BAR OPERATIONS COMMISSION

RELIEF FROM AN ORDER OF DEFAULT [Rule 9, Sec 3(b)]

(a) Before judgment, a party declared in default may


file a motion under oath to set aside the order of
default upon proper showing that:
(1) His failure to answer was due to fraud,
accident, mistake or excusable negligence;
and that
(2) He has a meritorious defense.
(b) In such case, the order of default may be set aside
on terms and conditions as justice requires.

(c) An order of default is an interlocutory order which


is not appealable. A judgment by default is a final
disposition of the case and is appealable.
[MERALCO v. La Campana Food Products (1995)]
(d) A petition for certiorari under Rule 65, although
not a substitute for an available or lost appeal,
may be invoked while the orders of the lower
court are issued without or in excess of
jurisdiction.
(e) Judgment by default being appealable, appeal
should be perfected within 15 days from receipt of
copy of order denying MFR of default judgment.
[Oriental Media v. CA (1995)]
(f) A satisfactory showing by the movant of the
existence of fraud, accident, mistake or excusable
neglect is an indispensable requirement for the
setting aside of a judgment of default or an order
of default.
(g) A meritorious defense is only one of the two
conditions. The meritorious defense must concur
with the satisfactory reason for the nonappearance of the defaulted party. If there is no
such reason, the appropriate remedy is an
ordinary appeal under Rule 41, Sec. 2. [Ramnani
v. CA (1993)]
(h) The jurisdiction was properly acquired by the TC
over the defendants person; he was therefore
properly declared in default for not having filed
any answer.
(i) Despite his failure to file a motion to set aside the
declaration of default, he has the right to appeal
the default judgment.
(j) But in the appeal, only the evidence of the
petitioner may be considered, respondent not
having adduced any defense evidence. [Boticano
v. Chu (1987)]

Remedies of a party declared in default


(a) Pleadings, as well as remedial laws, should be
liberally construed in order that litigants may
have ample opportunity to prove their respective
claims, and possible denial of substantial
justice. [Gerales v. CA (1993)]
(b) Dulos v. CA (1990)
At any time after the discovery
of default and before judgment,
defendant may file a motion
Motion to Set under oath to set aside order of
Aside Order of default on the ground that his
Default [Rule 9, failure to file an answer or
Sec. 3(B)]
appear on the date set for the
pre-trial was due to fraud,
accident mistake of law, and
excusable negligence and that
he has a meritorious defense
(a) If the judgment has already
been rendered when the
defendant discovered the
default, but before the same
became final and executory.
(b) It should be filed within the
Motion for New
period for perfecting an
Trial [Rule 37, Sec.
appeal. Timely filing thereof
1(A)]
interrupts
the
15-day
reglementary period for an
appeal.
(c) It is required that defendant
file first a motion to lift order
of default to regain his
standing. [Tan v. CA (1997)]
Petition for Relief
from
Order,
Judgment or Other
Proceedings [Rule
38, Sec. 1 And 2]
Appeal from the
RTC [Rule 41, Sec.
1]

EFFECT OF A PARTIAL DEFAULT [Rule 9, Sec 3(c)]

If the pleading asserting a claim states a common


cause of action against several defending parties,
and some of the defending parties answer while the
others fail, the court shall try the case against all
defendants upon the answers filed and render
judgment upon the evidence presented.

If the defendant discovered the


default after the judgment has
become final and executory

Exception: If the defense is personal to the one who


answered; in which case, it will not benefit those who
did not answer.
EXTENT OF RELIEF

The defendant may also appeal


from the judgment rendered
against him as contrary to the
evidence or the law, even if he
did not present a petition to set
aside the order of default

Extent of relief to be awarded


The award shall not exceed the amount or be
different in kind from that prayed for; nor award
unliquidated damages.

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Rationale: It is presumed that where the relief


demanded is greater or different in kind, defendant
would not have allowed himself to be declared in
default.

Lesaca v. CA (1992): A defendant who already filed an


answer cannot be declared in default. Only when
the defendant fails to file an answer to the complaint
may the court proceed to render judgment.

Datu Samad Mangelen v. CA (1992): In a judgment


based on evidence presented ex parte, judgment
should not exceed the amount or be different in kind
from that prayed for.

Bayog v. Natino (1996): The Revised Rules on


Summary Procedure does not provide that an answer
filed after the reglementary period should be
expunged from the records.

On the other hand, in a judgment where an answer


was filed but defendant did not appear at the
hearing, the award may exceed the amount or be
different in kind from that prayed for.

As a matter of fact, there is no provision for an entry


of default if a defendant fails to file his answer.
The defense of LOJ may have even been raised by
the defendant in a MTD as an exception to the rule
on prohibited pleadings in the Revised Rule on
Summary Procedure. Such a motion is allowed under
Sec. 19(a) thereof.

ACTIONS WHERE DEFAULT ARE NOT ALLOWED

Cases where no defaults are allowed [Rule 9, Sec 3(e)]


(a) Annulment of marriage; Declaration of nullity of
marriage; Legal Separation;

Malanyaon v. Sunga (1992): Where the failure to


appear at the pre-trial hearing was uncontrovertedly
due to illness, the default order may be set aside on
the ground of accident over which petitioner had no
control.

Here, the court shall order the prosecuting


attorney to investigate WON parties are colluding
and, if there is no collusion, to intervene from the
State to ensure that evidence is not fabricated.
(b) Special civil actions of certiorari, prohibition and
mandamus, where comment (instead of an
answer) is required to be filed.

Also, the order of arrest was illegal as there is


nothing in the ROC which authorizes such a
consequence of a default order.

Failure to appear at pre-trial


Who fails to
Effect
appear
Plaintiff
Cause for dismissal of the
action which will be with
prejudice, unless otherwise
ordered by the court
Defendant
Cause to allow plaintiff to
present evidence ex parte, and
court to render judgment on
the basis thereof
Default by defendant
(Rule 9, Sec. 3)
Upon motion and notice
to defendant.
Requires proof of failure
to answer
Court
to
render
judgment,
unless
it
requires submission of
evidence
Relief awarded must be
the same in nature and
amount as prayed for in
the complaint

BAR OPERATIONS COMMISSION

Acquisition of jurisdiction
FILING AND SERVICE OF PLEADINGS
DEFINITION

Filing The act of presenting the pleading or other


paper to the clerk of court. [Rule 13, Sec. 2]
Service The act of providing a party or his counsel
with a copy of the pleading or paper concerned. [Rule
13, Sec. 2]
PAPERS REQUIRED TO BE FILED AND SERVED [Rule 13, Sec.

As in default
(failure to appear by
plaintiff) (Rule 18, Sec. 5)
Not required

4]
(a) Pleading subsequent to the complaint;
(b) Appearance;
(c) Written Motion;
(d) Notice;
(e) Order;
(f) Judgment;
(g) Demand;
(h) Offer of Judgment;
(i) Resolution;
(j) Similar papers.

Not required
Court to allow plaintiff
to present evidence ex
parte, then the court
shall render judgment
Relief awarded may be
of different nature and
amount from the relief
prayed for

PAYMENT OF DOCKET FEES

As a rule, the court acquires jurisdiction over the case


only upon payment of prescribed fees

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General rule: Without payment, case is considered


not filed. Payment of docket fees is mandatory and
jurisdictional.

BAR OPERATIONS COMMISSION

within thirty (30) days after receipt of summons of the


foreign entity where the defendant is a foreign
private juridical entity and service of summons is
made on the government official designated by law
to receive the same, the answer shall be filed [Rule
11, Sec. 2]

It is not simply the filing of the complaint or


appropriate initiatory pleading but the payment of
the prescribed docket fee, that vests a trial court with
jurisdiction over the subject matter or nature of the
action [Proton Pilipinas v. Banque National de Paris
(2005)]

Answer to amended complaint - Where the plaintiff


files an amended complaint as a matter of right, the
defendant shall answer the same within fifteen (15)
days after being served with a copy thereof.

Effect of Failure to Pay Docket Fees at Filing


Manchester v. CA (1987) [Old Rule]: AUTOMATIC
DISMISSAL. Any defect in the original pleading
resulting in underpayment of the docket fees cannot
be cured by amendment, such as by the reduction of
the claim as, for all legal purposes, there is no
original complaint over which the court has acquired
jurisdiction

Where its filing is not a matter of right, the defendant


shall answer the amended complaint within ten (10)
days from notice of the order admitting the same. An
answer earlier filed may serve as the answer to the
amended complaint if no new answer is filed.
Note that this Rule shall apply to the answer to an
amended counterclaim, amended cross-claim,
amended third (fourth, etc.) party complaint, and
amended complaint-in-intervention. [Rule 11, Sec. 3]

Modification by Sun Insurance v. Asuncion (1989):


NOT AUTOMATIC DISMISSAL BUT Court may allow
payment of fees within reasonable period of time.
Note that payment should always be within the
prescriptive period of the action filed.

Answer to counterclaim or cross-claim - A


counterclaim or cross-claim must be answered
within ten (10) days from service. [Rule 11, Sec. 4]

Further Modification by Heirs of Hinog v. Melicor


(2005): FEES AS LIEN. Where the trial court acquires
jurisdiction over a claim by the filing of the pleading
and the payment of the prescribed filing fee, BUT
SUBSEQUENTLY, the judgment awards a claim not
specified in the pleading, or cannot then be
estimated, or a claim left for determination by the
court, then the additional filing fee shall constitute a
lien on the judgment.

Answer to third (fourth, etc.)- party complaint - Same


rule as the answer to the complaint. [Rule 11, Sec. 5]
Reply - within ten (10) days from service of the
pleading responded to. [Rule 11, Sec. 6]
Answer to supplemental complaint - within ten (10)
days from notice of the order admitting the same,
unless a different period is fixed by the court.

Note: Appellate docket and other lawful fees must


be paid within the same period for taking an appeal.
Non-payment is a valid ground for dismissal of an
appeal. [M.A. Santander v. Villanueva (2004)]
However, delay in the payment of docket fees confers
upon the court discretionary and not mandatory
power to dismiss an appeal. [Villamor v. CA (2004)]

Note that the answer to the complaint shall serve as


the answer to the supplemental complaint if no new
or supplemental answer is filed.
NOTE: Upon motion and on such terms as may be
just, the court may extend the time to plead provided
in these Rules. The court may also, upon like terms,
allow an answer or other pleading to be filed after
the time fixed by these Rules. [Rule 11, Sec. 11]

FILING VERSUS SERVICE OF PLEADINGS

Filing is the act of presenting the pleading or other


papers to the clerk of court. [Rule, 13, Sec. 2]

MANNER OF FILING

Service is the act of providing a party with a copy of


the pleading or paper concerned. [Rule, 13, Sec. 2]

Manner of filing [Rule 13, Sec. 3] (Asked in the 2005


Bar particularly in comparison with filing in criminal
actions)
(a) Personally.
(1) By personally presenting the original to the
clerk of court.

PERIODS OF FILING OF PLEADINGS

Answer to the complaint - The defendant shall file his


answer to the complaint within fifteen (15) days after
service of summons, unless a different period is fixed
by the court. [Rule 11, Sec. 1]

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(2) The pleading is deemed filed upon the receipt


of the same by the clerk of court who shall
endorse on it the date and hour of filing.
(3) If a party avails of a private carrier, the date of
the courts actual receipt of the pleading (not
the date of delivery to the private carrier) is
deemed to be the date of the filing of that
pleading. [Benguet Electric Cooperative v.
NLRC (1992)]
(b) By registered mail.
(1) Filing by mail should be through the registry
service (i.e. by depositing the pleading in the
post office).
(2) The pleading is deemed filed on the date it
was deposited with the post office.

BAR OPERATIONS COMMISSION

10 days after mailing,


unless
otherwise
provided by the court

Affidavit of the person


mailing of facts showing
compliance with Sec. 7 of
Rule 13.
Service by registered mail
Whichever is earlier:
Affidavit of the person
(a) Actual receipt by mailing of facts showing
the addressee
compliance with Sec. 7 of
(b) 5 days after the Rule 13
addressee received
1st
postmaster's AND
notice
Registry receipt issued by
the post office

MODES OF SERVICE [Rule 13, Sec. 5]

Service of judgments, final orders or resolutions [Rule


13, Sec. 9]
(a) By personal service;
(b) By registered mail;
(c) By publication at the expense of the prevailing
party if party was summoned by publication and
has failed to appear in the action.

Personal service [Rule 13, Sec. 6]


(a) Delivering personally a copy to the party or his
counsel.
(b) Leaving a copy in counsel's office with his clerk or
with a person having charge thereof.
(c) If no person is found in his office, or if his office is
unknown, or if he has no office Leaving the copy
between 8am and 6pm at the party's or counsel's
residence (if known) with a person of sufficient
age and discretion then residing therein.

Priorities in modes of service and filing [Rule 13, Sec.


11]
General rule: Personal filing and service. Resort to
other modes of filing and service must be
accompanied by an explanation why the
service/filing was not done personally. If there is no
written explanation, the paper is considered not
filed.

Service by (registered) mail [Rule 13, Sec. 7]


(a) By depositing the copy in the office, in a sealed
envelope, plainly addressed to the party or his
counsel at his office or at his residence (if known),
with postage fully pre-paid, and with instructions
to the postmaster to return the mail to the sender
after 10 days if undelivered.
(b) If no registry service is available in the locality of
either sender or addressee, service may be done
by ordinary mail.

Exception: Papers emanating from the court.


When service is deemed complete
(a) Personal service is deemed complete upon actual
delivery [Rule 13, Sec. 10]
(b) Service by registered mail is complete upon
actual receipt by the addressee or after 5 days
from the date he received the first notice of the
postmaster, whichever date is earlier. [Rule 13,
Sec. 10]
(c) Service by ordinary mail is complete upon the
expiration of 10 days after mailing, unless the
court otherwise provides [Rule 13, Sec. 10]
(d) Substituted service is complete at the time of
delivery of the copy to the clerk of court together
with the proof of failure of both personal service
and service by mail. [Rule 13, Sec. 8]

Substituted service [Rule 13, Sec. 8]


By delivering the copy to the clerk of court, with proof
of failure of both personal service and service by mail
Completeness of service
Proof of service (Rule 13
(Rule 13 Sec. 10)
Sec. 13)
Personal service
Upon actual delivery
Written admission of the
party served, OR
Official return of the server
OR
Affidavit of the party
serving, with a full
statement
of
the
date/place/manner
of
service.
Service by ordinary mail

Purpose of the rule on completeness of service for


service by registered mail: To make sure that the
party being served with the pleading, order or
judgment is duly informed of the same so that such
party can take steps to protect the interests, i.e.,

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enable to file an appeal or apply for other


appropriate reliefs before the decision becomes final.
[MINTERBRO v,CA (2012)]

BAR OPERATIONS COMMISSION

Notice of lis pendens [Rule 13, Sec. 14]


Lis Pendens - Notice of a pendency of the action
between the parties involving title to or right of
possession over real property.

Proof of filing and service


Proof of filing
(a) Filing is proved by its existence in the record of
the case [Rule 13, Sec. 12].
(b) If it is not in the record [Rule 13, Sec. 12].

Requisites: [AFP Mutual Benefit Association v. CA


(2001)]
(a) Action affects the title or the right of possession
of the real property;
(b) Affirmative relief is claimed;
(c) Notice shall contain the name of the parties and
the object of the action/defense and a description
of the property affected thereby;
(d) Action in rem.
(1) The notice serves as a warning to all persons,
prospective purchasers or encumbrancers of
the property in litigation to keep their hands
off the property in litigation unless they are
prepared to gamble on the result of the
proceedings.
(2) The defendant may also record a notice of lis
pendens when he claims an affirmative relief
in his answer.
(3) The notice of cannot be cancelled on an ex
parte motion or upon the mere filing of a bond
by the party on whose title the notice is
annotated, as Sec. 14 provides that such
cancellation may be authorized only upon
order of court, after proper showing that:
[Roxas v. CA (1993)]
(4) The notice is for the purpose of molesting the
adverse party; or
(5) It is not necessary to protect the rights of the
party who caused it to be recorded

When pleading is deemed


Proof of filing
filed
Personally
Upon receipt of the Written/stamped
pleading by the clerk of acknowledgment by the
court
clerk of court
By registered mail
On the date the pleading Registry receipt, and
was deposited with the affidavit of the person
post office
who did the mailing
with:
(a) Full statement of
the date/place of
depositing the mail
in the post office in a
sealed
envelope
addressed to the
court
(b) Postage fully paid
(c) Instructions to the
postmaster to return
the mail to the
sender after 10 days
if undelivered

Amended and supplemental pleadings

Proof of Service [Rule 13, Sec. 13]


(a) Proof of personal service shall consist of:
(1)a written admission of the party served, or the
official return of the server, OR
(2) the affidavit of the party serving,
(3) Content: full statement of the date, place
and manner of service.
(b) Proof of service by ordinary mail:
(1)an affidavit of the person mailing
(2) Content: facts showing compliance with
Rule 13, Sec. 7
(c) Proof of service by registered mail
(1) an affidavit of the person mailing containing
the facts showing compliance with Rule 13,
Sec. 7, AND
(2) the registry receipt issued by the mailing
office.
(3) the registry return card which shall be filed
immediately upon its receipt by the sender, or
in lieu thereof of the unclaimed letter together
with the certified or sworn copy of the notice
given by the postmaster to the addressee.

AMENDMENT
HOW TO AMEND PLEADINGS [Rule 10, Sec. 1]

(a) Adding an allegation of a party;


(b) Adding the name of a party;
(c) Striking out an allegation of a party;
(d) Striking out the name of a party;
(e) Correcting a mistake in the name of a party; and
(f) Correcting a mistaken or inadequate allegation or
description in any other respect.
Purpose: That the actual merits of the controversy
may speedily be determined, without regard to
technicalities, and in the most expeditious and
inexpensive manner.
Barfel Development v. CA (1993): As a general policy,
liberality in allowing amendments is greatest in the
early stages of a law suit, decreases as it progresses
and changes at times to a strictness amounting to a
prohibition.

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(b) Once exercised, it cannot be disturbed on appeal,


except in case of abuse thereof. [Metropolitan
Bank v. Presiding Judge (1990)]

This is further restricted by the condition that the


amendment should not prejudice the adverse party
or place him at a disadvantage.

FORMAL AMENDMENT [Rule 10, Sec. 4]

(a) A defect in the designation of the parties and


other clearly clerical errors may be summarily
corrected by the court motu proprio or by motion
at any stage of the action.
(b) Provided that no prejudice is caused to the
adverse party.

Form [Rule 10, Sec. 7]


A new copy of the entire pleading, incorporating the
amendments, which shall be indicated by
appropriate marks, shall be filed.
AMENDMENT AS A MATTER OF RIGHT

Substantial Amendments once, made at any time


before a responsive pleading is served. If it is a reply,
once, made at any time within 10 days after it is
served. [Rule 10, Sec. 2] (Asked in the 2003 Bar
Exam)

AMENDMENTS TO CONFORM TO OR
PRESENTATION OF EVIDENCE [Rule 10, Sec.

AUTHORIZE

5] (Asked in

the 2004 Bar Exam)


(a) If issues not raised by the pleadings are tried with
the express/implied consent of the parties, they
shall be treated in all respects as if they had been
raised in the pleadings.

AMENDMENTS BY LEAVE OF COURT

Substantial Amendments - If as a matter of


discretion, requires leave of court if:
(a) It is substantial; and
(b) A responsive pleading has already been served.
[Rule 10, Sec. 3]

(b) Amendment of pleadings as may be necessary to


cause them to conform to the evidence and to
raise these issues, may be made upon motion of
any party, any time (even after judgment).

Requisites for amendments by leave of court


(a) Motion filed in court;
(b) Notice to the adverse party;
(c) Opportunity to be heard afforded to the adverse
party.

But failure to amend does not affect the result of


the trial of these issues.
(c) If evidence is objected to at the trial on the
ground that it is not within the issues made by
the pleadings, the court may allow the pleadings
to be amended and shall do so with liberality if
the presentation of the merits of the action and
the ends of substantial justice will be subserved
thereby. The court may grant a continuance to
enable the amendment to be made.

(Note: In the 2008 Bar Exam, a question was asked


on amendment of complaint to implead additional
parties)
When amendment by leave of court may not be
allowed
(a) If the cause of action, defense or theory of the
case is changed.
(b) If amendment is intended to confer jurisdiction to
the court.
If the court has no jurisdiction in the subject
matter of the case, the amendment of the
complaint cannot be allowed so as to confer
jurisdiction on the court over the property. [PNB v.
Florendo (1992)]

Amendments vis--vis supplemental pleadings


IFFERENT FROM SUPPLEMENTAL PLEADINGS

Supplemental pleadings (ASKED IN THE 2000 BAR


EXAM)
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]

(c) If amendment is for curing a premature or nonexisting cause of action.


(d) If amendment is for purposes of delay.

Purpose: to bring into the records new facts which


will enlarge or change the kind of relief to which the
plaintiff is entitled [Ada v. Baylon (2012), citing Young
v. Spouses Yu]

Note:
(a) Admitting an amended complaint in intervention
is a matter addressed to the courts discretion,
subject only to the limitations that amendments
should not substantially change the cause of
action or alter the theory of the case or made to
delay the action.

It is made upon motion of a party with reasonable


notice and upon terms as are just.

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Summons

The cause of action stated in the supplemental


complaint must be the same as that stated in the
original complaint. Otherwise, the court should not
admit the supplemental complaint. [Asset
Privatization Trust v. CA (1998)]

Definition: A coercive force issued by the court to


acquire jurisdiction over the person of the defendant
(asked in the 1999 Bar Exam)

A supplemental complaint/pleading supplies


deficiencies in aid of an original pleading, not to
entirely substitute the latter.

NATURE AND PURPOSE OF SUMMONS IN


RELATION TO ACTIONS IN PERSONAM, IN REM
AND QUASI IN REM

Unlike in an amended complaint, the original


complaint exists side by side with the supplemental
complaint. [Shoemart v. CA (1990)]

PURPOSE

(1) To acquire jurisdiction over the person of the


defendant in a civil case;
(2) To give notice to the defendant that an action has
been commenced against him.

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)]

ISSUANCE OF SUMMONS

Upon the filing of the complaint and the payment of


legal fees, the clerk of court shall issue the
corresponding summons to the defendants. [Rule 14,
Sec. 1]

A supplemental pleading may properly allege


transactions, occurrences or events which had
transpired after the filing of the pleading sought to
be supplemented, even if the said supplemental
facts constitute another cause of action. [Ada v.
Baylon (2012)]
Amendments

Supplemental pleadings

Reason
for
the
amendment is available
at time of the 1st
pleading
Either as a matter of
right or a matter of
discretion
Supersedes the pleading

Grounds
for
the
supplemental pleading
arose after the 1st
pleading was filed
Always a matter of
discretion

When an amended
pleading is filed, a new
copy of the entire
pleading must be filed

BAR OPERATIONS COMMISSION

CONTENTS OF SUMMONS [Rule 14, Sec. 2]

Summons must be directed to the defendant, signed


by the clerk of the court under seal, and contain:
(1) Name of the court and names of the parties;
(2) Direction that the defendant answer within the
time fixed;
(3) Notice that unless the defendant so answers,
plaintiff will take judgment by default and may be
granted the relief applied for.
A copy of the complaint and order for appointment
of guardian ad litem (if any) shall be attached to the
original and each copy of the summons.
NOTE that jurisdiction over person of defendant may
also be acquired through voluntary appearance.

Supplements
the
pleading (i.e. Exists side
by side with the original
pleading)
A
supplemental
pleading
does
not
require the filing of a
new copy of the entire
pleading

VOLUNTARY APPEARANCE
GENERAL RULE: Defendant's voluntary appearance in
the action shall be equivalent to service of summons;
EXCEPTION: Special appearance to file a MTD.

BUT inclusion in the MTD of grounds other than LOJ


over the defendants person, is not deemed a
voluntary appearance.

EFFECT OF AMENDED PLEADING

Effect [Rule 10, Sec. 8]


(a) Amended pleading supersedes the pleading that
it amends.
(b) Claims and defenses in superseded pleading
which are not incorporated in the amended
pleading are deemed waived.
(c) Admissions made in the superseded pleading
may still be received in evidence against the
pleader.

Any mode of appearance in court by a defendant or


his lawyer is equivalent to service of summons,
absent any indication that the appearance of counsel
for petitioner is precisely to protest the jurisdiction of
the court over the person of the defendant. [Delos
Santos v. Montesa (1993)]

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CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

WHO SERVES THE SUMMONS [Rule 14, sec. 3]

(1) The sheriff or his deputy;


(2) Other proper court officers;
(3) For justifiable reasons, any suitable person
authorized by the court issuing the summons.
(4) Officer having management of a jail or
institution deputized as special sheriff when
defendant is a prisoner [Rule 14, sec. 9]

For a valid substituted service of summons, the


following must be established in the proof of service:
[Sps. Ventura v. CA (1987)]
(1) Impossibility of the personal service of summons
within a reasonable time;
(2) Efforts made to find the defendant personally
and the fact that such efforts failed; [Laus v. CA
(1993)]
(3) Service by leaving copy of summons either:
(a) With some person of suitable age and
discretion then residing in the defendants
residence;
(b) With some competent person in charge of the
defendants office or regular place of business.

RETURN OF SUMMONS [Rule 14, sec. 4]

When the service has been completed, the server


shall, within 5 days therefrom, serve a copy of the
return (personally or by registered mail) to the
plaintiff's counsel, and shall return the summons to
the clerk who issued it, accompanied by proof of
service.

For a substituted service to be valid, summons


served at the defendant's residence must be served
at his residence at the time of such service and not at
his former place of residence.

ALIAS SUMMONS [Rule 14, sec. 5]

Upon plaintiffs demand, the clerk may issue an alias


summons if either:
(1) Summons is returned without being served on
any/all of the defendants.
(2) Summons was lost.

"Dwelling house" or "residence" refer to the place


where the person named in the summons is living at
the time when the service is made, even though he
may be temporarily out of the country at the time.
[Sps. Ventura v. CA (1987)]

The server shall also serve a copy of the return on the


plaintiff's counsel within 5 days therefrom, stating
the reasons for the failure of service.

Substituted service must be used only as prescribed


and in the circumstances authorized by statute.
Statutes prescribing modes other than personal
service of summons must be strictly complied with to
give the court jurisdiction, and such compliance must
appear affirmatively in the return. [Laus v. CA (1993)]

MODES OF SERVICE OF SUMMONS

Any application to the court under Rule 14 for leave


to effect service in any manner for which leave of
court is necessary shall be made by:
(1) motion in writing,
(2) supported by affidavit of the plaintiff or some
person on his behalf, setting forth the grounds
for the application. [Rule 14, Sec. 17]

While the sheriff's return carries with it the


disputable presumption of regularity in the sense
that the entries therein are deemed correct, it does
not necessarily follow that an act done in relation to
the official duty for which the return is made was not
done simply because it is not disclosed therein.
[Mapa v. CA (1992)]

PERSONAL SERVICE
SERVICE IN PERSON ON DEFENDANT

(1) By handing a copy of summons to him;


(2) By tendering it to him, if he refuses to receive
and sign for it. [Rule 14, Sec. 6]

Proof of substituted service of summons must


(a) indicate the impossibility of service of summons
within a reasonable time;
(b) specify the efforts exerted to locate the
defendant; and
(c) state that the summons was served upon a
person of sufficient age and discretion who is
residing in the address, or who is in charge of the
office or regular place of business, of the
defendant. It is likewise required that the
pertinent facts proving these circumstances be
stated in the proof of service or in the officers
return. [Sps. Tiu v. Villar (2012)]

SUBSTITUTED SERVICE [Rule 14, Sec. 7] (asked in


the 2004 Bar Exam)
RATIONALE:

Enjoyment of the privileges of residence


within the state, and the attendant right to invoke
the protection of its laws, are inseparable from the
various incidences of state citizenship.
One such incident of domicile is amenability to suit
within the state even during sojourns without the
state, where the state has provided and employed a
reasonable method for apprising such an absent
party of the proceedings against him. [Northwest v.
CA (1995)]

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CONSTRUCTIVE SERVICE (BY PUBLICATION) [Rule


14, Sec. 14]

BAR OPERATIONS COMMISSION

from any interest in any property within the


Philippines;
(d) Has defendants property in the Philippines,
attached.

REQUISITES

(1) The action is in rem or quasi in rem;


(2) Defendant's identity or whereabouts are unknown
and cannot be ascertained by diligent inquiry;
(3) There must be leave of court.

MODES OF SERVICE

(1) With leave of court, serve outside the Philippines


by personal service; or
(2) With leave of court, serve by publication in a
newspaper of general circulation, in which case
copy of the summons and order of the court must
also be sent by registered mail to the defendants
last known address;
(3) Any other manner the court deems sufficient

Summons by publication in a personal action cannot


confer upon the court jurisdiction over the person of
the defendant, who does not voluntarily submit
himself to the authority of the court.
The proper recourse for the plaintiff is to locate
properties of the defendant whose address is
unknown and cause them to be attached.
[Consolidated Plywood v. Breve (1988)]

The court order granting extraterritorial service shall


specify a period of at least 60 days within which the
defendant must answer.
SERVICE UPON PRISONERS AND MINORS
SERVICE UPON PRISONER [Rule 14, Sec. 9]
Serve upon the officer having management of the
jail/prison

SERVICE OF SUMMONS UPON DIFFERENT ENTITIES

See Annex A.
SERVICE UPON A DEFENDANT WHERE HIS IDENTITY IS
UNKNOWN OR WHERE HIS WHEREABOUTS ARE UNKNOWN

[Rule 14, Sec. 14]

SERVICE UPON MINORS AND INCOMPETENTS [Rule 14, Sec.

10]
Serve upon the minor/incompetent and on his legal
guardian.
(a) If there is no guardian, plaintiff may apply for the
appointment of a guardian ad litem.
(b) If minor, may serve on his parents.

With leave of court, by publication in a newspaper of


general circulation
SERVICE UPON RESIDENTS TEMPORARILY OUTSIDE THE
PHILIPPINES [Rule 14, Sec. 16]

With leave of court, may serve extraterritorially

PROOF OF SERVICE
RETURN OF SERVICE [Rule 14, Sec. 4]
When service has been completed, the server shall
serve a copy of the return within 5 days (personally or
by registered mail) to the plaintiff's counsel, and
shall return the summons to the clerk who issued it,
accompanied with the proof of service.

Service of summons upon different entities


Summons is validly served if it is left with some
person of suitable age and discretion then residing in
the defendant's residence, even if defendant was
abroad at that time. The fact that the defendant did
not actually receive the summons did not invalidate
the service of such summons. [Montalban v. Maximo
(1963)]

General rule: Return of service of summons


immediately shifts burden of evidence from plaintiff
to defendant since there is a presumption of
regularity.
(a) Without return of service: Burden is on plaintiff.
(b) In the case of Mapa v. CA (1992) though, while
there was a return, return was patently irregular,
thus no presumption of regularity could be had.

EXTRA-TERRITORIAL SERVICE, WHEN ALLOWED


[Rule 14, Sec. 15]
REQUISITES: (Asked in the 1997 and 2008 Bar Exam)

(1) Defendant does not reside or is not found in the


Philippines;
(2) Action either:
(a) Affects the plaintiffs personal status;
(b) Relates to or the subject matter of which is
property within the Philippines in which
defendant has a lien/interest;
(c) Demands
a
relief
which
consists
wholly/partially in excluding the defendant

Exception: Doctrine of substantial compliance If


defendant actually received summons and complaint
despite all these technicalities.
PROOF OF SERVICE

If personal or substituted service: In writing by the


server and shall: [Rule 14, Sec. 18]
(1) Set forth the manner/place/date of service;

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(2) Specify any papers which have been served with


the process and the name of the person who
received the same;
(3) Be sworn to when made by a person other than a
sheriff or his deputy.

BAR OPERATIONS COMMISSION

SERVICE OF SUMMONS UPON DIFFERENT ENTITIES

See Annex A.

Motions

If by publication: [Rule 14, Sec. 19]


(1) Affidavit of the printer, his foreman, principal
clerk, or the editor, business/advertising
manager, with a copy of the publication attached,
AND
(2) Affidavit showing the deposit of a copy of the
summons and order for publication in the post
office, postage prepaid, directed to the defendant
by registered mail to his last known address.

MOTIONS IN GENERAL
DEFINITION OF A MOTION

An application for relief other than by a pleading


[Rule 15, Sec. 1]
Motion day [Rule 15, Sec. 7]
Except for urgent motions, motions are scheduled for
hearing:
(1) On Friday afternoons;
(2) Afternoon of the next working day, if Friday is a
non-working day.

EFFECT OF NON-SERVICE OF SUMMONS

(asked in the
2006 Bar Exam)
Unless the defendant voluntarily submits to the
jurisdiction of the court,non-service or irregular
service of summons renders null and void all
subsequent proceedings and issuances in the action
from the order of default up to and including the
judgment by default and the order of execution.

Motion for leave to file a pleading/motion [Rule 15,


Sec. 9]
Must be accompanied by the pleading/motion
sought to be admitted

If the defendant has already been served with


summons on the original complaint, no further
summons is required on the amended complaint if it
does not introduce new causes of action. [Ong Peng
v. Custodio (1961)]

Motions not acted upon


Parties and counsel should not assume that courts
are bound to grant the time they pray for. After all, a
motion that is not acted upon in due time is deemed
denied. [Orosa v. CA (1996)]

But if the defendant was declared in default on the


original complaint and the plaintiff subsequently
filed an amended complaint, new summons must be
served on the defendant on the amended complaint,
as the original complaint was deemed withdrawn
upon such amendment. [Atkins v. Domingo (1923)]

MOTIONS VERSUS PLEADINGS

WAIVER OF SERVICE OF SUMMONS [Rule 14, Sec. 20]

General rule: Defendant's voluntary appearance in


the action shall be equivalent to service of summons;
Exception: Special appearance to file a MTD.

Motion

Pleading

Contains allegations of
facts
Prays for a relief
Grant of the relief does
not extinguish the action
(interlocutory relief)
Generally in writing (with
some exceptions)

Contains allegations of
the ultimate facts
Prays for a relief
Grant
of
relief
extinguishes the action
(final relief)
Always in writing

General rule: A motion cannot pray for judgment.

Inclusion in the MTD of grounds other than LOJ over


the defendants person, is not deemed a voluntary
appearance. Any mode of appearance in court by a
defendant or his lawyer is equivalent to service of
summons, absent any indication that the
appearance of counsel for petitioner is precisely to
protest the jurisdiction of the court over the person of
the defendant. [Delos Santos v. Montesa (1993)]

Exception:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to evidence.
CONTENTS AND FORM OF MOTIONS

Contents [Rule 15, Sec. 3]


(1) Relief sought to be obtained
(2) Grounds upon which it is based

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CIVIL PROCEDURE

(3) If it is required/necessary to prove facts alleged in


a motion, it shall be accompanied by supporting
affidavits and other papers.
(4) Motions raising factual issues must be supported
by affidavits.

BAR OPERATIONS COMMISSION

What may be proof:


(1) If by registered mail: Affidavit or registry receipt
or postmark on envelope or return card, with an
explanation.
(2) If
by
personal
service:
Affidavit
or
acknowledgment of receipt by the other party.

Form of motions [Rule 15, Sec. 2]


General rule: In writing.

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.

Exception: Oral motions:


(1) Made in open court;
(2) In the course of a hearing/trial.
NOTICE OF HEARING AND HEARING OF MOTIONS

Requisites of motions (not made in open court or in


the course of hearing/trial)
(1) In writing; [Rule 15, Sec. 2]

OMNIBUS MOTION RULE [Rule 15, Sec. 8]

Definition: A motion attacking a pleading/ order/


judgment/ proceeding must include all objections
then available. All objections not included in the
motion are deemed waived.

(2) Hearing on the motion set by the applicant


Notice of hearing shall be addressed to all
parties, and shall specify the time and date of the
hearing which shall not be later than 10 days
from the filing of the motion. [Rule 15, Sec. 5]

Exception: When the courts jurisdiction is in issue:


(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.

Notice must be addressed to the counsels. A


notice of hearing addressed to the clerk of court,
and not to the parties, is no notice at all.
Accordingly, a motion that does not contain a
notice of hearing to the adverse party is nothing
but a mere scrap of paper, as if it were not filed;
hence, it did not suspend the running of the
period to appeal. [Provident International
Resources v. CA (1996)]

LITIGATED AND EX PARTE MOTIONS

Kinds of Motion
(1) Motion Ex Parte - Made without notification to the
other party because the question generally
presented is not debatable.
(2) Litigated Motion - Made with notice to the
adverse party so that an opposition thereto may
be made.
(3) Motion Of Course - Motion for a kind of
relief/remedy to which the movant is entitled to
as a matter of right, Allegations contained in such
motion do not have to be investigated/verified.
(4) Special Motion - Discretion of the court is
involved. An investigation of the facts alleged is
required.

(3) Motion and notice of hearing must be served at


least 3 days before the date of hearing; [Rule 15,
Sec. 4]
Purpose: To prevent surprise upon the adverse party
and to enable the latter to study and meet the
arguments of the motion.
Exceptions:
(1) Ex parte motions;
(2) Urgent motions;
(3) Motions agreed upon by the parties to be heard
on shorter notice, or jointly submitted by the
parties;
(4) Motions for summary judgment which must be
served at least 10 days before its hearing.

PRO-FORMA MOTIONS

Pro forma motion A motion failing to indicate time


and date of the hearing
MOTIONS FOR BILL OF PARTICULARS
(ASKED IN THE 2003 BAR
EXAM)
Definition: 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]
BILL OF PARTICULARS

Proof of service [Rule 15, Sec. 6]


General rule: A written motion set for hearing will not
be acted upon by the court if there is no proof of
service thereof.

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BAR OPERATIONS COMMISSION

(2) BOP or definite statement filed either as a


separate pleading or as an amended pleading, a
copy of which must be served on the adverse
party.

PURPOSE AND WHEN APPLIED FOR

It is filed by the plaintiff pursuant to a court order


issued upon granting a motion for BOP filed by the
defendant before the latter files an answer.
In said motion, the defendant prays for a more
definite statement of matters which are not averred
with sufficient definiteness in the complaint.

Effect of non-compliance [Rule 12, Sec. 4]


In case of non-compliance or insufficient compliance
with the order for BOP, the court:
(1) May order the striking out of the pleading (or
portion thereof) to which the order is directed; OR
(2) Make such order as it may deem just.

An action cannot be dismissed on the ground that


the complaint is vague/indefinite. The remedy of the
defendant is to move for a BOP or avail of the proper
mode of discovery. [Galeon v. Galeon (1973)]

If the plaintiff fails to obey, his complaint may be


dismissed with prejudice unless otherwise ordered by
the court. [Rule 12, Sec. 4; Rule 17, Sec. 3]

Purpose
To inform the adverse party more specifically of the
precise nature and character of the cause of action or
defense alleged in the pleading, with the view of
enabling him to prepare properly his responsive
pleading or to prepare for trial.

If defendant fails to obey, his answer will be stricken


off and his counterclaim dismissed, and he will be
declared in default upon motion of the plaintiff. [Rule
9, Sec. 3; Rule 12, Sec. 4; Rule 17, Sec. 4]

The purpose of a BOP is to define/ clarify/


particularize/ limit/ circumscribe the issues in the
case to expedite the trial and assist the court.

EFFECT ON THE PERIOD TO FILE A RESPONSIVE PLEADING

[Rule 12, Sec. 5]


A Motion for BOP interrupts the period to file a
responsive pleading.

The only question to be resolved in a motion for a


BOP is WON the allegations in the complaint are
averred with sufficient definiteness/ particularity to
enable the movant to properly prepare his
responsive pleading and to prepare for trial.
[Tantuico, Jr. v. Republic (1991)]

The period to which the movant is entitled at the


time of filing of the motion, which shall not be less
than 5 days in any event.
NOTE the following distinctions:

A BOP becomes part of the pleading for which it was


intended. [Rule 12, Sec. 6]
When applied for [Rule 12, Sec. 1]
(1) Before responding to a pleading
(2) If the pleading is a reply, within 10 days from
service thereof
What a motion for bill of particulars should point out
[Rule 12, Sec. 1]
(1) The defects complained of;
(2) The paragraph wherein they are contained;
(3) The details desired.
ACTIONS OF THE COURT [Rule 12, Sec. 2]

(1) Deny;
(2) Grant the motion outright;
(3) Allow the parties the opportunity to be heard.
COMPLIANCE WITH THE ORDER AND EFFECT OF NONCOMPLIANCE

Compliance with order [Rule 12, Sec. 3]


If motion for BOP is granted wholly/partially:
(1) Within 10 days from notice of order, BOP or a
more definite statement should be submitted
(unless court fixes a different period).

PAGE 44

Bill of Particulars (BOP)

Intervention

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
Available
to
the
defendant before he files
his responsive pleading

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 time after
the commencement of
an action, even during
the proceeding, but not
after the trial has been
concluded

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CIVIL PROCEDURE

Terminating the action before trial

BAR OPERATIONS COMMISSION

(b) LOJ over the subject matter of the claim


(c) Improper venue
(d) Plaintiffs lack of legal capacity to sue
(e) Litis pendentia
(f) Res judicata
(g) Prescription
(h) Failure to state a cause of action
(i) Extinguished claim
(j) Unenforceable claim under the Statute of Frauds
(k) Non-compliance with a condition precedent for
filing claim

MOTION TO DISMISS
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
It hypothetically admits the facts stated in the
complaint.

LOJ over the defendants person


The objection of LOJ over the person on account of
lack of service or defective service of summons, must
be raised:
(1) At the very first opportunity;
(2) Before any voluntary appearance is made.
If a defendant had not been properly summoned, the
period to file a MTD for LOJ over his person does not
commence to run until he voluntarily submits to the
jurisdiction of the court. [Laus v. CA (1993)]

It is not a responsive pleading. It is not a pleading at


all. It is subject to the omnibus motion rule since it is
a motion that attacks a pleading. Hence, it must
raise all objections available at the time of the filing
thereof.
General rule: A court may not motu propio dismiss a
case, unless a motion to that effect is filed by a party.

Appearance of counsel is equivalent to summons,


unless such is made to protest the jurisdiction of the
court over the person of the defendant. If grounds
other than invalid service of summons are raised, it
cannot be considered as a special appearance. [De
los Santos v. Montesa (1993)]

Exception:
(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.

LOJ over the subject matter of the claim


If the complaint shows on its face LOJ, the court may
dismiss the case outright instead of hearing the
motion.

TYPES OF DISMISSAL OF ACTION

(1) MTD before answer under Rule 16;


(2) MTD under Rule 17:
(a) Upon notice by plaintiff;
(b) Upon motion by plaintiff;
(c) Due to fault of plaintiff.
(3) Demurrer to evidence after plaintiff has
completed the presentation of his evidence under
Rule 33;
(4) Dismissal of an appeal.

A MTD on the ground of LOJ over the subject matter


may be raised either:
(1) Before answer;
(2) After answer is filed;
(3) After hearing had commenced;
(4) At any stage of the proceeding, even for the first
time on appeal and even if no such defense is
raised in the answer.

Note:
A MTD shall be proved/disproved according to the
rules of evidence.

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)]

The hearing shall be conducted as an ordinary


hearing and the parties shall be allowed to present
evidence, except when the motion is based upon
failure of the complaint to state a cause of action.
When the MTD is based on facts not appearing of
record, the court may hear the matter on
affidavits/depositions.
[Rule 16, Sec. 1] (Asked in the 2008 Bar
Exam)
(a) LOJ over the defendants person
GROUNDS

A stipulation between the parties as to venue does


not preclude the filing of suits in the residence of

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CIVIL PROCEDURE

plaintiff/defendant under Rule 4, Sec. 2(b). In the


absence of qualifying/restrictive words which would
indicate that a specific place alone is the venue, an
agreement as to venue is merely permissive and
there is no waiver of right to pursue remedy in other
courts. [HSBC v. Sherman (1989)]

BAR OPERATIONS COMMISSION

The 1st case shall be abated if it is merely an


anticipatory action or defense against an expected
suit. The 2nd case will not be abated if it is not
brought to harass. [Vitrionics Computers v. RTC
(1993)]

If the court erroneously denies the MTD, the remedy


is prohibition.

Res judicata
Requisites (Asked in the 2000 Bar Exam):
(1) Former judgment rendered by a court having
jurisdiction over the subject matter and over the
parties;
(2) Judgment must be a final judgment;
(3) Judgment must be on the merits;
There can be res judicata without a trial, such as
in a judgment on the pleadings (Rule 34); a
summary judgment (Rule 35); or an order of
dismissal under Rule 17, Sec. 3.
(4) There must be identity of parties, of subject
matter and of the causes of action.

Plaintiffs lack of legal capacity to sue


The plaintiff lacks legal capacity to sue:
(1) When he does not possess the necessary
qualification to appear at the trial (e.g. when he
plaintiff is not in the full exercise of his civil
rights);
(2) When he does not have the character which he
claims, which is a matter of evidence (e.g. when
he is not really a duly appointed administrator of
an estate).
Lack of legal capacity to sue refers to plaintiffs
disability; while lack of legal personality to sue refers
to the fact that the plaintiff is not a real party in
interest, in which case the ground for dismissal
would be that the complaint states no cause of
action.

For res judicata to apply, absolute identity of parties


is not required because substantial identity is
sufficient. Inclusion of additional parties will not
affect the application of the principle of res judicata.
The test of identity of cause of action lies not in the
form of the action but on WON the same evidence
would support and establish the former and the
present causes of action. [DBP v. Pundogar (1993)]

Litis pendentia
Requisites: [Anderson Group v. CA (1997) Asked in the
2007 Bar Exam]
(1) Identity of parties;
(2) identity of rights asserted and relief prayed for;
(3) Relief founded on the same facts and the same
basis;
(4) Identity in the 2 proceedings should be such that
any judgment which may be rendered in the other
action will amount to res judicata on the action
under consideration.

Rationale: The sum and substance of the whole


doctrine is that a matter once judicially decided is
finally decided because of:
(1) Public policy and necessity makes it the interest
of the State that there should be an end to
litigation;
(2) The hardship on the individual that he should be
vexed twice for the same cause. [Nabus v. CA
(1991)]

It is not required to allege that there be a prior


pending case. It is sufficient to allege and prove the
pendency of another case, even if same had been
brought later.

Two concepts of res judicata [ABALOS V. CA 1993,


ASKED IN THE 1997 BAR EXAM)]
(1) Bar by prior judgment Judgment on the merits
in the 1st case constitutes an absolute bar to the
subsequent action not only as to every matter
which was offered and received to sustain or
defeat the claim/demand, but also to any other
admissible matter which might have been offered
for that purpose and to all matters that could
have been adjudged in that case. (Asked in the
2002 Bar Exam)

It does not require that the later case be dismissed in


favor of the earlier case. To determine which case
should be abated, apply:
(1) The More Appropriate Action Test;
(2) The Interest of Justice Test, taking into account:
(a) Nature of the controversy;
(b) Comparative accessibility of the court to the
parties;
(c) Other similar factors.

(2) Conclusiveness of judgment Where the 2nd


action between the parties is upon a different
claim/demand, the judgment in the 1st case
operates as an estoppel only with regard to those

In both tests, the parties good faith shall be taken


into consideration.

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CIVIL PROCEDURE

issues directly controverted, upon the


determination of which the judgment was
rendered.

Test: Assuming the allegations and statements to be


true, does the plaintiff have a valid cause of action?
A MTD based upon the ground of failure to state a
cause of action imports a hypothetical admission by
the defendant of the facts alleged in the complaint.

Note: A single act or omission that causes damage to


an offended party may give rise to two separate civil
liabilities on the part of the offender (1) civil liability ex
delicto, that is, civil liability arising from the criminal
offense under Article 100 of the Revised Penal Code,
52 and (2) independent civil liability, that is, civil
liability that may be pursued independently of the
criminal proceedings. Because of the distinct and
independent nature of the two kinds of civil liabilities,
jurisprudence holds that the offended party may
pursue the two types of civil liabilities simultaneously
or cumulatively, without offending the rules on forum
shopping, litis pendentia, or res judicata.[Lim v. Co
(2012)]

If the court finds the allegations of the complaint to


be sufficient but doubts their veracity, it must deny
the MTD and require the defendant to answer and
then proceed to try the case on its merits.
A complaint containing a premature cause of action
may be dismissed for failure to state a cause of
action.
If the suit is not brought against the real party-ininterest, a motion to dismiss may be filed on the
ground that the complaint states no cause of action.
[Tanpinco v. IAC (1992)]

On naturalization: A decision or order granting


citizenship will not even constitute res judicata to any
matter or reason supporting a subsequent judgment
cancelling the certification of naturalization already
granted, on the ground that it had been illegally or
fraudulently procured. [Republic v. Ong (2012)]

Extinguished claim
That the claim/demand set forth in the plaintiff's
pleading has been paid, waived, abandoned or
otherwise extinguished.

Statute of limitations
Prescription applies only when the complaint on its
face shows that indeed the action has already
prescribed.

Unenforceable claim under the statute of frauds


Article 1403 (2) CC requires certain contracts to be
evidenced by some note or memorandum in order to
be enforceable, to wit:
(a) An agreement that by its terms is not to be
performed within a year from the making thereof;
(b) A special promise to answer for the debt, default,
or miscarriage of another;
(c) An agreement made in consideration of marriage,
other than a mutual promise to marry;
(d) An agreement for the sale of goods, chattels or
things in action, at a price not less than five
hundred pesos, unless the buyer accept and
receive part of such goods and chattels, or the
evidences, or some of them, of such things in
action, or pay at the time some part of the
purchase money; but when a sale is made by
auction and entry is made by the auctioneer in his
sales book, at the time of the sale, of the amount
and kind of property sold, terms of sale, price,
names of the purchasers and person on whose
account the sale is made, it is a sufficient
memorandum;
(e) An agreement for the leasing for a longer period
than one year, or for the sale of real property or of
an interest therein;
(f) A representation as to the credit of a third person.

If the fact of prescription is not indicated on the face


of the complaint and the same may be brought out
later, the court must defer decision on the motion
until such time as proof may be presented on such
fact of prescription.
Prescription

Laches

Concerned with the fact


of delay
A matter of time
Statutory
Applies in law
Based on fixed time

Concerned with the


effect of delay
A matter of equity
Not statutory
Applies in equity
Not based on fixed time

BAR OPERATIONS COMMISSION

Complaint states no cause of action


Failure to state a cause of action (not lack of cause of
action) is the ground for a MTD. The former means
there is insufficiency in the allegations in the
pleading. The latter means that there is insufficiency
in the factual basis of the action.

Non-compliance with a condition precedent


Non-compliance with PD 1508 (Katarungang
Pambarangay Law) may result in dismissal of the

The failure to state a cause of action must be evident


on the face of the complaint itself.

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CIVIL PROCEDURE

case on the ground of non-compliance with a


condition precedent.

BAR OPERATIONS COMMISSION

Appeal is not a remedy since denial of a motion


to dismiss is an interlocutory order. As a general
rule, defendant files his answer and then may
appeal an adverse judgment.

RESOLUTION OF MOTION

During the hearing of the motion, parties shall


submit: [Rule 16, Sec. 2]
(1) Their arguments on questions of law;
(2) Their evidence on questions of fact.

(2) Another remedy is to file a certiorari, case under


Rule 65 alleging grave abuse of discretion.
[Riano]

Exception: Those not available at that time.


EFFECT OF DISMISSAL OF COMPLAINT ON CERTAIN
GROUNDS

If the case goes to trial, such evidence presented


shall automatically be part of the evidence of the
party presenting the same.

Of dismissal: [Rule 16, Sec.5]


General rule: The action/claim may be re-filed.

After the hearing, the court may either: [Rule 16, Sec.
3]
(1) Dismiss the action/claim;
(2) Deny the MTD;
(3) Order the amendment of pleadings.

Exception: The action cannot be re-filed (although


subject to appeal) if it was dismissed on any of the
following grounds:
(1) Res judicata;
(2) Prescription;
(3) Extinguishment of the claim/demand;
(4) Unenforceability under the Statute of Frauds.
[Rule 16, Sec. 1 (f),(h),(i)]

The court cannot defer the resolution of the MTD for


the reason that the ground relied upon is not
indubitable.

On periods for pleading: [Rule 16, Sec.4]


If MTD is denied Movant must file his answer within
the balance of the period under Rule 11 to which he
was entitled at the time of serving his MTD (but not
less than 5 days) computed from the his receipt of
notice of the denial.

The courts resolution on the MTD must clearly and


distinctly state the reasons therefor.
REMEDIES OF PLAINTIFF WHEN THE COMPLAINT IS
DISMISSED

Remedies of plaintiff when motion to dismiss is


granted
If the motion is granted, the complaint is dismissed.
Since the dismissal is final and not interlocutory in
character, the plaintiff has several options:
(1) Depending upon the ground for the dismissal of
the action, the plaintiff may refile the complaint,
e.g when ground for dismissal is anchored on
improper venue.
(2) He may appeal from the order of dismissal where
the ground relied upon is one which bars refilling
of complaint e.g.
(a) Res judicata
(b) Prescription
(c) Extinguishment of the obligation
(d) Violation of Statutes of Fraud
(3) The plaintiff may also avail of a petition for
certiorari, alleging grave abuse of discretion.
[Riano]

If pleading is ordered to be amended movant must


file his answer within the period under Rule 11,
counted from service of the amended pleading
(unless the court gives a longer period).
On other grounds and omnibus motion rule:
MTD based on the following grounds may be filed
even after filing an answer: [Rule 9, Sec. 1]
(1) LOJ over subject-matter;
(2) Litis pendentia;
(3) Res judicata;
(4) Prescription.
Dismissal of the complaint under Rule 16, Sec. 6 is
without prejudice to the prosecution (in the same or
in a separate action) of a counterclaim pleaded in
the answer.
WHEN GROUNDS PLEADED AS AFFIRMATIVE DEFENSES

[Rule 16, Sec. 6]


If no MTD was filed, the grounds in Rule 16, Sec. 1
may be pleaded as an affirmative defense and the
court may conduct a preliminary hearing thereon as
if a MTD was filed.

REMEDIES OF THE DEFENDANT WHEN THE MOTION IS


DENIED

(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.

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Upon plaintiffs filing of notice, the court shall issue


an order dismissing the case. (i.e. the court has no
discretion on WON to dismiss the case).

BAR BY DISMISSAL

Subject to the right of appeal, an order granting a


motion to dismiss based on paragraphs:
(f) That the cause of action is barred by a prior
judgment or by the statute of limitations;
(h) That the claim or demand set forth in the
plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished; and
(i) - That the claim on which the action is founded is
enforceable under the provisions of the statute
of frauds

General rule: The dismissal is without prejudice.


Exceptions:
(1) If the notice of dismissal provides that it is with
prejudice.
The dismissal is still with prejudice even it the
notice of dismissal does not so provide, where
such notice is premised on the fact of payment by
the defendant of the claim involved. [Serrano v.
Cabrera (1953)]

shall bar the refiling of the same action or claim.


[Rule 16, Sec. 5]

(2) Two-Dismissal Rule


If the plaintiff has previously dismissed an action
based on or including the same claim, the notice
operates as an adjudication upon the merits.

DISTINGUISHED FROM DEMURRER TO EVIDENCE UNDER


RULE 33

MTD under Rule 16


Based 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
defending
partys
answer to the pleading
asserting the claim
against him
If denied, defendant
answers; else, he may be
declared in default.
If granted, plaintiff may
appeal
or
if
a
subsequent
case is not barred, he
may re-file the case

BAR OPERATIONS COMMISSION

MTD under Rule 33


(Demurrer to evidence)
Based on insufficiency
of evidence
May be filed only by the
defendant against the
complaint
of
the
plaintiff
May be filed only after
the
plaintiff
has
completed
the
presentation of his
evidence

DISMISSAL UPON MOTION BY PLAINTIFF;


EFFECT ON EXISTING COUNTERCLAIM
DISMISSAL UPON PLAINTIFFS MOTION [Rule 17, Sec. 2]

Here, dismissal of the complaint is subject to the


courts discretion and upon such terms and
conditions as may be deemed proper by court
Leave of court for the dismissal is necessary because
the motion is made after a responsive pleading or a
motion for summary judgment has been served.
If defendant pleaded a counterclaim prior to the
service upon him of the plaintiffs motion for
dismissal, the dismissal shall be without prejudice to
the defendants right to either:
(1) Prosecute his counterclaim in a separate action;
(2) Have the counterclaim resolved in the same
action, by manifesting such preference within 15
days from being notified of plaintiffs motion for
dismissal.

If denied, defendant
may present evidence.
If granted, plaintiff
appeals and the order
of the dismissal is
reversed; the defendant
loses his right to
present evidence.

Dismissal here is without prejudice, unless otherwise


provided in the order.

Dismissal of Actions

Court approval of the court is necessary in the


dismissal/compromise of a class suit.

DISMISSAL UPON NOTICE BY PLAINTIFF; TWODISMISSAL RULE


DISMISSAL UPON PLAINTIFFS NOTICE [Rule 17, Sec. 1]
Dismissal here is effected not by motion but by mere
notice before the service of either:
(1) The answer;
(2) A motion for summary judgment.

DISMISSAL DUE TO THE FAULT OF PLAINTIFF


DISMISSAL DUE TO PLAINTIFFS FAULT [Rule 17, Sec. 3]
The case may be dismissed motu proprio or upon the
defendants motion if, without justifiable cause,
plaintiff fails either:
(1) To appear on the date of the presentation of his
evidence-in-chief on the complaint;
(a) The plaintiffs failure to appear at the trial
after he has presented his evidence and

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BAR OPERATIONS COMMISSION

rested his case does not warrant the dismissal


of the case on the ground of failure to
prosecute.
(b) It is merely a waiver of his right to crossexamine and to object to the admissibility of
evidence. [Jalover v. Ytoriaga (1977)]
(2) To prosecute his action for an unreasonable
length of time (nolle prosequi);
The test for dismissal of a case due to failure to
prosecute is WON, under the circumstances, the
plaintiff is chargeable with want of due diligence
in failing to proceed with reasonable
promptitude. [Calalang v. CA (1993)]
(3) To comply with the ROC or any court order.

res judicata. Res judicata, however, is not applicable


since the court held that it did not acquire
jurisdiction due to non-payment of docket fees.

The dismissal has the effect of an adjudication on the


merits, unless the court declares otherwise, without
prejudice to the right of the defendant to prosecute
his counter-claim in the same or separate action.

DEFINITION

Rule 17, Sec. 2


Dismissal is at
plaintiffs instance

Dismissal on the ground of LOJ does not constitute


res judicata, there being no consideration and
adjudication of the case on the merits. Neither is
there litis pendentia. [Meliton v. CA (1992)]

Pre-Trial
CONCEPT OF PRE-TRIAL
A mandatory conference and personal confrontation
before the judge between the parties litigant and
their representative counsels, called by the court
after the joinder of issues in a case or after the last
pleading has been filed and before trial, for the
purpose of settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice (Asked in the 1999 Bar
Examination, Examiner asked to compare this with
proceedings in the Katarungang Pambarangay).

Rule 17, Sec. 3


the

Dismissal is a matter of
procedure,
without
prejudice
unless
otherwise stated in the
court order or on
plaintiffs motion for
dismissal of his own
complaint.
Dismissal is without
prejudice
to
the
defendants right to
prosecute
his
counterclaim
in
a
separate action (unless
within 15 days from
notice of the motion he
manifests his intention
to have his counterclaim
resolved in the same
action).

Dismissal is not procured


by plaintiff, although
justified
by
causes
imputable to him
Dismissal is a matter of
evidence,
an
adjudication on the
merits

NATURE AND PURPOSE


PURPOSE

To consider: [Rule 18, Sec. 2]


(a) Possibility of an amicable settlement or of a
submission to alternative modes of dispute
resolution;
(b) Simplification of the issues;
(c) Necessity/desirability of amendments to the
pleadings;
(d) Possibility of obtaining stipulations or admissions
of facts and of documents to avoid unnecessary
proof;
(e) Limitation of the number of witnesses;
(f) Advisability of a preliminary reference of issues to
a commissioner;
(g) Propriety of rendering judgment on the
pleadings, or summary judgment, or of
dismissing the action should a valid ground
therefor be found to exist;
(h) Advisability/necessity
of
suspending
the
proceedings; and
(i) Other matters that may aid in the prompt
disposition of the action.

Dismissal is without
prejudice
to
the
defendants right to
prosecute
his
counterclaim in the
same or in a separate
action

DISMISSAL OF COUNTERCLAIM, CROSS-CLAIM


OR THIRD-PARTY COMPLAINT [Rule 17, Sec. 4]

Note:
(a) Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
(b) Thus, to obviate the element of surprise, parties
are expected to disclose at a pre-trial conference
(PTC) all issues of law and fact which they intend

This Rule applies to the dismissal of counterclaims,


cross-claims or 3rd-party complaints.
Where a counterclaim is made the subject of a
separate suit, it may be abated upon a plea of auter
action pendentia and/or dismissal on the ground of

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CIVIL PROCEDURE

to raise at the trial, except such as may involve


privileged or impeaching matters. The
determination of issues at a pre-trial conference
bars the consideration of other questions on
appeal. [Caltex v. CA (1992)]
(c) When conducted: After the last pleading has
been served and filed, it shall be the plaintiffs
duty to move ex parte that the case be set for pretrial. [Rule 18, Sec. 1]
(d) A pre-trial cannot validly be held until the last
pleading has been filed, which last pleading may
be the plaintiff's reply, except where the period to
file the last pleading has lapsed.
(e) Discretion to declare a party non-suited in PTC
must not be abused. Unless a party is so
negligent, irresponsible, contumacious, or
dilatory as to provide substantial grounds for
dismissal for non-appearance, the court should
consider lesser sanctions which would still
amount to achieving the end desired. [Calalang v.
CA (1993)]

BAR OPERATIONS COMMISSION

Citibank v. Chua (1993): SC admonishes the courts


against precipitate orders of default as they have the
effect of denying the party the chance to be heard.
There are instances when parties may properly be
defaulted, but such is the exception rather than the
rule and should be used only in clear cases of
obstinate refusal or inordinate neglect to comply
with court orders.
FAILURE TO APPEAR AT PRE-TRIAL

Who fails to
appear
Plaintiff

Defendant

NOTICE OF PRE-TRIAL [Rule 18, Sec. 3]


Notice of pre-trial shall be served on counsel, or on
the party who has no counsel.

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

Default by defendant
(Rule 9, Sec. 3)
Upon motion and notice
to defendant.
Requires proof of failure
to answer
Court
to
render
judgment,
unless
it
requires submission of
evidence
Relief awarded must be
the same in nature and
amount as prayed for in
the complaint

Counsel served with such notice has a duty to notify


the party he represents.
At the start of the preliminary conference, the judge
is mandated to refer the parties and/or their
counsels to the mediation unit of the Philippine
Mediation Center (PMC) for purposes of mediation. If
the mediation fails, the judge will schedule the
continuance of the preliminary conference. This rule
applies to Metro Manila, Cebu Davao City, and other
place where PMC Units may be further organized
and designated. [Admin, Circular No. 20-2002;
Admin. Circular No. 50-2005, April 26, 2005]

Effect

As in default
(failure to appear by
plaintiff) (Rule 18, Sec. 5)
Not required
Not required
Court to allow plaintiff
to present evidence ex
parte, then the court
shall render judgment
Relief awarded may be
of different nature and
amount from the relief
prayed for

(a) A defendant who already filed an answer cannot


be declared in default. Only when the defendant
fails to file an answer to the complaint may the
court proceed to render judgment. [Lesaca v. CA
(1992)]
(b) The Revised Rules on Summary Procedure does
not provide that an answer filed after the
reglementary period should be expunged from
the records.
(c) As a matter of fact, there is no provision for an
entry of default if a defendant fails to file his
answer.
(d) The defense of LOJ may have even been raised by
the defendant in a MTD as an exception to the
rule on prohibited pleadings in the Revised Rule
on Summary Procedure.
(e) Such a motion is allowed under Sec. 19(a) thereof.
[Bayog v. Natino (1996)]

APPEARANCE OF PARTIES; EFFECT OF FAILURE


TO APPEAR
APPEARANCE OF PARTIES [Rule 18, Sec. 4]
It is the duty of the parties and their counsel to
appear at the pre-trial.
A partys non-appearance may be excused only if
either:
(a) Valid cause is shown for it;
(b) A representative appears in his behalf, fully
authorized in writing:
(1) To enter into an amicable settlement;
(2) To submit to alternative modes of dispute
resolution;
(3) To enter into stipulations/admissions of facts
and of documents.

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BAR OPERATIONS COMMISSION

(f) Where the failure to appear at the pre-trial


hearing was uncontrovertedly due to illness, the
default order may be set aside on the ground of
accident over which petitioner had no control.
(g) Also, the order of arrest was illegal as there is
nothing in the ROC which authorizes such a
consequence of a default order. [Malanyaon v.
Sunga (1992)]

(e) 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)]

PRE-TRIAL BRIEF; EFFECT OF FAILURE TO


APPEAR
PRE-TRIAL BRIEF [Rule 18, Sec. 6]
(a) Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
(b) Pre-trial briefs contents (Asked in the 2001 Bar
Exam):
(1) Statement of their willingness to enter into
amicable settlement or alternative modes of
dispute resolution, indicating the desired
terms thereof;
(2) Summary of admitted facts and proposed
stipulation of facts;
(3) Issues to be tried/resolved;
(4) Documents/exhibits to be presented, stating
the purpose thereof;
(5) Manifestation of their having availed or their
intention to avail themselves of discovery
procedures or referral to commissioners;
(6) Number and names of the witnesses, and the
substance of their respective testimonies. [AM
No. 03-1-09-SC]

CALENDAR OF CASES

Note: AM 03-1-09-SC (No termination of pre-trial for


failure to settle)
(a) Under the direct supervision of the judge, the
clerk of court shall keep a calendar of cases for
pre-trial, for trial, those whose trials were
adjourned/postponed, and those with motions to
set for hearing. [Rule 20, Sec. 1]
(b) Preference shall be given to habeas corpus cases,
election cases, special civil actions, and those so
required by law. [Rule 20, Sec. 1]
(c) The assignment of cases to the different branches
of a court shall be done exclusively by raffle. The
assignment shall be done in open session of
which adequate notice shall be given so as to
afford interested parties the opportunity to be
present. [Rule 20, Sec. 2]
DISTINCTION BETWEEN PRE-TRIAL IN CIVIL
CASE AND PRE-TRIAL IN CRIMINAL CASE (Bar
1997, Riano)

Note: Failure to file the pre-trial brief shall have the


same effect as failure to appear at the pre-trial.
RECORD OF PRE-TRIAL [Rule 18, Sec. 6]

(a) The pre-trial proceedings shall be recorded. Upon


termination of such proceedings, the court shall
issue the pre-trial order.
(b) Pre-trial orders contents:
(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.
(c) Consequence: The contents of the order shall
control the subsequent course of the action,
unless modified before trial to prevent manifest
injustice.
(d) 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.

Civil Case

Criminal Case

Set when the plaintiff


moves ex parte to set the
case for pre-trial [Rule
18, Sec. 1]

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 pretrial conference shall be

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.

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Civil Case

Criminal Case

Under the Rules, they


are instead to be
contained in the record
of pre-trial and pre-trial
order [Rule 18, Sec. 7]

reduced in writing and


signed by both the
accused and counsel;
otherwise, they cannot
be used against the
accused. [Rule 118, Sec.
2]

[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]

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thereof or to submit the case to any of the alternative


modes of dispute resolution [AM No. 03-1-09-SC]
EXCEPTION TO THE APPLICATION OF RA 9285:

(a) labor disputes covered by the Labor Code;


(b) the civil status of persons;
(c) validity of a marriage;
(d) any ground for legal separation;
(e) the jurisdiction of courts;
(f) future legitime;
(g) criminal liability; and
(h) those which by law cannot be compromised.
MODES OF ALTERNATIVE DISPUTE RESOLUTIONS:

Arbitration [RA, 9285, Section 1]


A voluntary dispute resolution process in which one
or more arbitrators, appointed in accordance with
the agreement of the parties, or rules promulgated
pursuant to this Act, resolve a dispute by rendering
an award\
Note: A court before which an action is brought in a
matter which is the subject matter of an arbitration
agreement shall, if at least one party so requests not
later that the pre-trial conference, or upon the
request of both parties thereafter, refer the parties to
arbitration unless it finds that the arbitration
agreement is null and void, inoperative or incapable
of being performed. [RA 9285, Sec. 24]

Sanctions are imposed


upon the counsel for the
accused
or
the
prosecutor [Rule 118,
Sec. 3]
A pre-trial brief is not
specifically required.

Different Kinds:
(a) Domestic Arbitration an arbritration that is not
international; governed by RA 876 (Arbitration
Law) [RA 9285, Sec. 32]
(b) International Arbitration - An arbitration is
international if:
(1) the parties to an arbitration agreement have,
at the time of the conclusion of that
agreement, their places of business in
different States; or
(2) one of the following places is situated outside
the State in which the parties have their
places of business:
(i) the place of arbitration if determined in, or
pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the
obligations of the commercial relationship
is to be performed or the place with which
the subject-matter of the dispute is most
closely connected; or
(3) the parties have expressly agreed that the
subject matter of the arbitration agreement
relates to more than one country [Article 3,
Model Law on International Commercial
Arbritration]

ALTERNATIVE DISPUTE RESOLUTION (ADR)


[RA 9285]
WHAT IS ALTERNATIVE DISPUTE RESOLUTION SYSTEM?

Means any process or procedure used to resolve a


dispute or controversy, other than by adjudication of
a presiding judge of a court or an officer of a
government agency, as defined in this Act, in which a
neutral third party participates to assist in the
resolution of issue [RA 9285, Sec. 3]
POLICY BEHIND THE ADR:

to actively promote party


autonomy in the resolution of disputes or the
freedom of the party to make their own
arrangements to resolve their disputes [RA 9285,
Sec. 2]
Notes:
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]
The pre-trial briefs of parties must include the
parties statement of their willingness to enter into
an amicable settlement indicating the desired terms

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Mediation [RA, 9285, Sec. 1]


(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

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defendant in resisting the claims of plaintiff, or


demanding something adversely to both of them.
Cario v. Ofilada (1993): It is the act/proceeding by
which a 3rd person becomes a party in a suit pending
between others.
It is the admission, by leave of court, of a person not
an original party to pending legal proceedings, by
which such person becomes a party thereto for the
protection of some right of interest alleged by him to
be affected by such proceedings.

Mini-trial [RA, 9285, Sec. 1]


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

An intervenor is a party to the action as the original


parties are, and to make his right effectual he must
necessarily have the same powers as the original
parties. He is entitled to have the issues raised
between him and the original parties tried and
determined.

Early Neutral Evaluation [RA, 9285, Sec. 1]


An ADR process wherein parties and their lawyers
are brought together early in a pre-trial phase to
present summaries of their cases and receive a
nonbinding assessment by an experienced, neutral
person, with expertise in the subject in the substance
of the dispute

Intervention is never an independent action, but is


ancillary and supplemental to the existing litigation.
Its purpose is to afford one not an original party, yet
having a certain right/interest in the pending case,
the opportunity to appear and be joined so he could
assert or protect such right/interest.

Combination of Alternative Dispute Resolution [RA,


9285, Sec. 1]
Example: Med-Arb: step dispute resolution process
involving both mediation and arbitration

Hence, the final dismissal of the principal action


results into the dismissal of said ancillary action.

Intervention

WHO MAY INTERVENE [Rule 19, Sec. 1]


(a) One who has a legal interest in the matter in
litigation;
(b) One who has a legal interest in the success of
either of the parties;
(c) One who has an interest against both parties;
(d) One who is so situated as to be adversely affected
by a distribution/disposition of property in the
courts custody.

DEFINITION OF INTERVENTION (Asked in the


2003 Bar Exam) [Rule 19, Sec. 1]
A legal remedy whereby a person is permitted to
become a party in a case, by either:
(a) Joining the plaintiff;
(b) Joining the defendant;
(c) Asserting his right against both plaintiff and
defendant, considering that either:
(1) He has a legal interest in the subject matter of
the action;
(2) He has legal interest in the success of either of
the parties
(3) He has legal interest against both of the
parties
(4) He is going to be adversely affected by the
disposition of the property in the custody of
the court

MEANING OF LEGAL INTEREST


(a) Interest must be of a direct and immediate
character so that the intervenor will either gain or
lose by the direct legal operation of the
judgment. The interest must be actual and
material, a concern which is more than mere
curiosity, or academic or sentimental desire; it
must not be indirect and contingent, indirect and
remote, conjectural, consequential or collateral.
[Virra Mall Tenants v. Virra Mall (2011)]

Metropolitan Bank v. Presiding Judge (1990):


Intervention is a proceeding in a suit/action by which
a 3rd person is permitted by the court to make
himself a party, either joining plaintiff in claiming
what is sought by the complaint, or uniting with

(b) When the title to the property if declared void by


final judgment, intervention will not revive or
reinstate the movants title derived from the title
declared void. [Firestone Ceramics v. CA (1999)]

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(c) The assignee of a property who assumed


payment of whatever amount may be finally
adjudged against the assignor, may intervene in a
proceeding involving the execution of the
property pursuant to a judgment. [Robles v.
Timario (1962)]

complaint, without the establishment of which


plaintiff could not recover.

(d) In an action for foreclosure of mortgage, the


alleged owners of the land sought ot be
foreclosed may intervene. [Roxas v. Dinglasan
(1969)]

Answer-in-intervention If intervenor unites with the


defending party in resisting a claim against the
latter.

PLEADINGS IN INTERVENTION [Rule 19, Sec. 3]

Complaint-in-intervention If intervenor asserts a


claim against either or all of the original parties.

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.

Note: Notwithstanding the presence of a legal


interest, permission to intervene is subject to the
sound discretion of the court, the exercise of which is
limited by considering "whether or not the
intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and
whether or not the intervenors rights may be fully
protected in a separate proceeding. [Virra Mall
Tenants v. Virra Mall (2011)]
REQUISITES FOR INTERVENTION
HOW INTERVENTION IS DONE

Intervention

Interpleader

An ancillary action
Proper in any of the four
situations mentioned in
Rule 19

An original action
Presupposes that the
plaintiff has no interest
in the subject matter of
the action or has an
interest therein, which in
whole or in part is not
disputed by the other
parties to the action
Defendants are being
sued
precisely
to
implead them

By a motion to intervene, with the pleading-inintervention attached. Must also serve copy of the
pleading-in-intervention on the original parties. [Rule
19, Sec. 2]
General rule: Allowance
discretionary with the court.

of

intervention

There is already a
defendant among the
original parties to the
pending suit

is

Exception: When the intervenor is an indispensable


party.

TIME TO INTERVENE
Intervention is allowed any time before TC renders
judgment. [Rule 19, Sec. 2]

FACTORS CONSIDERED IN ALLOWING INTERVENTION

(a) WON intervention will unduly delay or prejudice


the adjudication of the rights of the original
parties.

REMEDY FOR THE DENIAL OF MOTION TO


INTERVENE
REMEDIES

(b) WON the intervenor's rights may be fully


protected in a separate proceeding.

(a) For denial of intervention:


(1) Appeal.
(2) Mandamus, if there is GAD.
(b) For improper granting of intervention: Certiorari.

Carino v Ofilada (1993): The interest must be actual


and material, direct and immediate; not simply
contingent or expectant.

Subpoena

It must be in the matter in litigation and of such


direct and immediate character that the intervenor
will either gain or lose by the direct legal operation
and effect of the judgment.

Subpoena is a process issued by court which is


either:

Magsaysay-Labrador v. CA (1989): Interest in the


subject means a direct interest in the cause of action
as pleaded and which would put the intervenor in a
legal position to litigate a fact alleged in the

TYPES (AND DEFINITION) OF SUBPOENA [Rule 21,


Sec. 1]
(a) Subpoena duces tecum
(b) Subpoena ad testificandum

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(c) Exception: Tender not required if subpoena is


issued by or on behalf of the Republic or an
officer/agency thereof.
(d) For subpoena duces tecum, also tender the
reasonable
cost
of
producing
the
books/documents/things demanded.
(e) Service must be made so as to allow the witness
reasonable time for preparation and travel to the
place of attendance

BY WHOM ISSUED [Rule 21, Sec. 2]


(a) The court before whom the witness is required to
attend;
(b) The court of the place where the deposition is to
be taken;
(c) The officer/body authorized by law to do so in
connection with investigations conducted by said
officer/body;
(d) Any SC/CA Justice in any case or investigation
pending within the Philippines.

COMPELLING ATTENDANCE OF WITNESSES;


CONTEMPT
PERSONAL APPEARANCE IN COURT [Rule 21, Sec. 7]
A person present in court before a judicial officer may
be required to testify as if he were in attendance
upon a subpoena issued by such court/officer.

FORM AND CONTENTS OF SUBPOENA [Rule 21,


Sec. 3]
(a) Name of court;
(b) Title of action/investigation;
(c) Directed to a person whose attendance is
required
(d) If subpoena duces tecum, a reasonable
description of the books/documents/things
demanded which must appear to the court prima
facie relevant.

[Rule 21, Sec.


2]
(a) The judge/officer shall examine and study the
application carefully to determine WON it is
made for a valid purpose.
(b) However, no prisoner sentenced to death,
reclusion perpetua or life imprisonment and who
is confined in a penal institution shall be brought
outside for appearance/attendance in any court
unless authorized by the SC.
APPLICATION FOR SUBPOENA TO PRISONER

Subpoena for depositions [Rule 21, Sec. 5]


(a) Proof of service of a notice to take a deposition is
sufficient authorization for the issuance of
subpoena ad testificandum for the persons
named in the notice.
(b) Issued by the clerk of court of the place in which
the deposition is to be taken.
(c) However, subpoena duces tecum for depositions
cannot be issued without court order.

REMEDY IN CASE OF WITNESS FAILURE TO ATTEND

Upon proof of service of subpoena and of witness


failure to attend, the court/judge issuing the
subpoena may issue a warrant to the sheriff to arrest
the witness and bring him before the court/officer
where his attendance is required. [Rule 21, Sec. 8]

SUBPOENA DUCES TECUM


Process directed to a person, requiring him to bring
with him any books/documents/things under his
control. (Asked in the 1997 Bar Exam)

The cost of warrant and seizure shall be paid by the


witness if the court determines that the failure to
attend was willful and without just excuse.

SUBPOENA DUCES TECUM DISTINGUISHED FROM ORDER


FOR PRODUCTION OR INSPECTION

Such failure shall be deemed a contempt of the court


which issued the subpoena. [Rule 21, Sec. 9]

See Annex B.
SUBPOENA AD TESTIFICANDUM
Process directed to a person, requiring him to attend
and to testify at the hearing/trial of an action or at
any investigation conducted by competent authority,
or for the taking of his deposition.

If subpoena was not issued by a court, the


disobedience shall be punished by applicable law or
ROC.
Exception: Arrest warrant and contempt not
applicable to: [Rule 21, Sec. 10]
(a) A witness who resides more than 100km from his
residence to the place where he is to testify.
(b) A detention prisoner, if there is no permission
from the court in which his case is pending.

SERVICE OF SUBPOENA [Rule 21, Sec. 6]


(a) Same manner as personal or substituted service
of summons.
(b) The original shall be exhibited and a copy
delivered to person on whom it is served, with
tender of fees for one days attendance and
kilometrage.

QUASHING OF SUBPOENA [Rule 21, Sec. 4]


Upon motion promptly made, at/before the time
specified in the subpoena.

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GROUNDS FOR QUASHING:

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identity of any persons having knowledge of


relevant facts. [Rule 23, sec. 2]

Subpoena duces tecum:


(1) It is unreasonable and oppressive;
(2) The relevancy of the books/documents/ things
does not appear;
(3) The person in whose behalf the subpoena is
issued fails to advance the reasonable cost of
production;
(4) Witness fees and kilometrage were not tendered
when subpoena was served.

Uses of deposition pending action


Dasmarias Garments,Inc. v. Reyes (1993):
General Rule: A deposition is not generally supposed
to be a substitute for the actual testimony in open
court of a party or witness. If the witness is available
to testify, he should be presented in court to testify.
If available to testify, a partys or witness deposition
is inadmissible in evidence for being hearsay.

Subpoena ad testificandum:
(1) That the witness is not bound thereby;
(2) That witness fees and kilometrage were not
tendered when the subpoena was served.

Exception: [Rule 23, Section 4]


(a) Any deposition may be used by any party for the
purpose of contradicting or impeaching the
testimony of deponent as a witness;
(b) The deposition of a party or of any one who at the
time of taking the deposition was an officer,
director, or managing agent of a public or private
corporation, partnership, or association which is a
party may be used by an adverse party for any
purpose;
(c) The deposition of a witness, whether or not a
party, may be used by any party for any purpose if
the court finds:
(1) that the witness is dead; or
(2) that the witness resides at a distance more
than one hundred (100) kilometers from the
place of trial or hearing, or is out of the
Philippines, unless it appears that his absence
was procured by the party offering the
deposition; or
(3) that the witness is unable to attend to testify
because of age, sickness, infirmity, or
imprisonment; or
(4) that the party offering the deposition has been
unable to procure the attendance of the
witness by subpoena; or
(5) upon application and notice, that such
exceptional circumstances exist as to make it
desirable, in the interest of justice and with
due regard to the importance of presenting
the testimony of witnesses orally in open
court, to allow the deposition to be used; and
(d) If only part of a deposition is offered in evidence
by a party, the adverse party may require him to
introduce all of it which is relevant to the part
introduced, and any party may introduce any
other parts.

Modes of Discovery
DEPOSITIONS PENDING ACTION; DEPOSITIONS
BEFORE ACTION OR PENDING APPEAL [Rules 23
and 24]
DEPOSITIONS UNDER RULE 23

Meaning and purpose of deposition


(a) Deposition is chiefly a mode of discovery, the
primary function of which is to supplement the
pleadings for the purpose of disclosing the real
points of dispute between the parties and
affording an adequate factual basis during the
preparation for trial.
(b) The liberty of a party to avail of such modes of
discovery is unrestricted if the matters inquired
into are relevant and not privileged, and the
inquiry is made in good faith and within the
bounds of the law.
(c) Limitations would arise if the examination is
conducted in bad faith; or in such a manner as to
annoy, embarrass or oppress the person under
examination; or when the inquiry touches upon
the irrelevant or encroaches upon the recognized
domains of privilege.
(d) Under certain conditions and for certain limited
purposes, it may be taken even after trial has
commenced and may be used without the
deponent being actually called to the witness
stand. [Jonathan Landoil v Mangudadatu (2006)]
Scope of examination
Unless otherwise provided by the court, the
deponent may be examined regarding any matter
not privileged, which is relevant to the pending
action, whether relating to the claim or defense of
any party
(a) including the existence, description, nature,
custody, condition and location of any books,
documents, or other tangible things and the

Before whom taken


General Rule: Depositions may be taken before any
judge, notary public, or the person referred to in
section 14 (which refers to any person authorized to
administer oaths designated by the parties by
stipulation).

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The attendance of the witnesses may be compelled


by the use of subpoenas. [Rule 23, Sec. 1]

Exceptions: In our jurisdiction, depositions in foreign


countries may be taken:
(a) on notice before a secretary of embassy or
legation, consul general, consul, vice consul, or
consular agent of the Republic of the Philippines;
(b) before such person or officer as may be appointed
by commission or under letters rogatory; or
(c) before any person authorized to administer oaths
as stipulated in writing by the parties.
Commission

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The deponent may be examined or cross examined


following the procedures for witnesses in a trial.
He may be asked questions on direct, cross, redirect or re-cross. He has the same rights as a
witness and may be impeached like a court
witness because Sections 3 to 18 of Rule 132 apply
to deponent. [Rule 23, Sec. 3]

Letters Rogatory

Addressed to whom
Any authority in a A judicial authority in the
foreign
country foreign country
authorized therein to
take down depositions
Rules that govern the deposition
Rules laid down by the Rules laid down by such
court
issuing
the foreign judicial authority
commission
When issued
Preferred over letters Generally resorted to
rogatory since the when there is difficulty or
process
is
simpler impossibility of obtaining
(generally, no need to the
deposition
by
resort to diplomatic commission (Regalado)
channels unlike in
letters rogatory)

The officer before whom the deposition is being


taken has no authority to rule on objections
interposed during the course of the deposition
although any objections shall be noted by him
upon the deposition. Any evidence that is objected
to shall still be taken but subject to the objection.
[Rule 23, Sec. 17]
When may taking of deposition be terminated or its
scope limited
The court in which the action is pending or the RTC
of the place where the deposition is being taken may
order the officer conducting the examination to
cease from taking the deposition, or may limit the
scope and manner of taking the deposition
When: At any time during the taking of the
deposition, on the motion or petition of any party or
of the deponent

No deposition shall be taken before a person who is:


[Rule 23, sec. 13]
(a) a relative within the sixth degree of consanguinity
or affinity, or
(b) employee or counsel of any of the parties, or who
is a relative within the same degree, or employee
of such counsel; or
(c) who is financially interested in the action.

Ground: that the examination is being conducted in


bad faith or in such a manner as unreasonably to
annoy, embarrass or oppress the deponent or party
[Rule 23, Sec. 18]
If the order made terminates the examination, it
shall be resumed only upon the order of the court in
which the action is pending.

Procedure
A party desiring to take the deposition of any
person upon oral examination shall give
reasonable notice in writing to every party to the
action stating the time and place for taking the
deposition and the name and address of each
person to be examined. [Rule 23, Sec. 15]

When may objections to errors and irregularities be


made [Rule 23, sec. 29]
Objection
As to
parties

After the notice is served, the court may make any


order for the protection of the parties and the
deponent. [Rule 23, Sec. 16]

notice

When Made
to

Deposition officer is
disqualified

PAGE 58

Waived,
unless
written
objection is promptly served
upon party giving notice
Waived, unless made before
the taking of the deposition
or
as
soon
as
the
disqualification
becomes
known or could be discovered

UP COLLEGE OF LAW

Objection
Lack of relevance,
materiality
and
competence of the
deposition to the
action

Error in the manner


of
taking
the
deposition
Error in the form of
written
interrogatories

Error in the manner


of preparing the
deposition

CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

Leave of court [Rule 23, Sec. 1]


(a) Leave of court is NOT required after an answer
has been served.
(b) It is required before the service of an answer but
after jurisdiction has been acquired over the
defendant or over the property subject of the
action.
(c) Only instance when one always needs leave of court
before taking depositions: Where the deponent is
in jail.

When Made
with reasonable certainty
NOT waived by failure to
make them before or during
the taking of the deposition,
unless the ground for the
objection is one which might
have been obviated or
removed if presented at that
time
Waived, unless reasonable
objection is made at the
taking of 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 the last
interrogatories
Waived, unless a motion to
suppress the deposition or
some part thereof is made
with reasonable promptness
after such defect is, or with
reasonable diligence might
have been, ascertained

WRITTEN INTERROGATORIES UNDER RULE 23

(a) A deposition need not be conducted through an


oral examination. It may be conducted through
written interrogatories which shall be served
upon every other party.
(b) The party served may also serve crossinterrogatories upon the party proposing to take
the deposition within 10 days from service of the
written interrogatories. The latter may, within 5
days serve re-direct interrogatories and within 3
days the other party may serve re-cross
interrogatories [Rule 23, Sec. 25]
(c) Copies of all these interrogatories shall be
delivered to the officer before whom the
deposition is taken and who shall take the
responses and prepare the record. [Rule 23, Sec.
26]
People v. Hubert Webb (1999): DEPOSITION, WHEN
AVAILABLE IN CRIMINAL CASES: A deposition, in
keeping with its nature as a mode of discovery,
should be taken BEFORE AND NOT DURING TRIAL.

Other rules
Effect of substitution of parties [Rule 23, Sec. 5]
(a) Substitution of parties does not affect the right to
use depositions previously taken;
(b) and, when an action has been dismissed and
another action involving the same subject is
afterward brought between the same parties or
their representatives or successors in interest,
(c) all depositions lawfully taken and duly filed in the
former action MAY BE USED IN THE LATTER AS
IF ORIGINALLY TAKEN THEREFOR.

In fact, rules on criminal practice - particularly on the


defense of alibi, which is respondents main defense in
the criminal proceedings against him in the court
below - states that when a person intends to rely on
such a defense, that person must move for the taking
of the deposition of his witnesses within the time
provided for filing a pre-trial motion.
The use of discovery procedure in criminal cases is
directed to the sound discretion of the trial judge.
The deposition taking cannot be based nor can it be
denied on flimsy reasons. Discretion has to be
exercised in a reasonable manner and in consonance
with the spirit of the law.

Effect of taking deposition [Rule 23, Sec. 7]


A party shall not be deemed to make a person his
own witness for any purpose by taking his deposition.
Effect of using deposition [Rule 23, Sec. 8]
General Rule: Introduction in evidence of deposition
or any part thereof for any purpose makes the
deponent the witness of the party introducing the
deposition.

Dasmarias Garments v. Reyes (1993): Any deposition


offered to prove the facts therein at the trial of the
case, in lieu of actual testimony of the deponent in
court, may be opposed and excluded for being
hearsay save in specific instances under the Rules.

Exception: if the purpose is to contradict or impeach


the deponent.

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DEPOSITIONS BEFORE ACTION UNDER RULE 24

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ORDER AND EXAMINATION: If the court is


satisfied that the perpetuation of the testimony
may prevent a failure or delay of justice, it shall
make an order designating or describing the
persons whose deposition may be taken and
specifying the subject matter of the examination
and whether the depositions shall be taken upon
oral examination or written interrogatories.

Purpose
To perpetuate the testimony of witnesses for
probable use in the event of further proceedings in
said court.
Procedure
FILE A VERIFIED PETITION IN THE COURT OF
THE PLACE OF THE RESIDENCE OF ANY
EXPECTED ADVERSE PARTY.

Note: Procedure for taking deposition by oral


examination or written interrogatories will be
governed by Rule 23 on depositions de bene esse.

The petition shall be entitled in the name of the


petitioner and shall show:
(a) that the petitioner expects to be a party to
an action in a court of the Philippines but is
presently unable to bring it or cause it to be
brought;
(b) the subject matter of the expected action
and his interest therein;
(c) the facts which he desires to establish by
the proposed testimony and his reasons for
desiring to perpetuate it;
(d) the names or a description of the persons he
expects will be adverse parties and their
addresses so far as known; and
(e) the names and addresses of the persons to
be examined and the substance of the
testimony which he expects to elicit from
each, and shall ask for an order authorizing
the petitioner to take the depositions of the
persons to be examined named in the
petition for the purpose of perpetuating
their testimony.

DEPOSITIONS PENDING APPEAL UNDER RULE 24

J. Regalado believes that the following procedure is


applicable to civil and criminal cases.
Procedure:
DURING THE PENDENCY OF AN APPEAL, the
court in which the judgment was rendered may
allow the taking of depositions of witnesses to
perpetuate their testimony in the event of further
proceedings in the said court.

The party who desires to perpetuate the testimony


may make a motion in the said court for leave to
take the depositions, upon the same notice and
service thereof as if the action was pending
therein. The motion shall state:
(a) the names and addresses of the persons to be
examined and the substance of the testimony
which he expects to elicit from each, and
(b) the reason for perpetuating their testimony.

NOTICE AND SERVICE to each person named in


the petition as an expected adverse party, together
with a copy of the petition, stating that the
petitioner will apply to the court, at a time and
place named therein, for the order described in the
petition.

ORDER ALLOWING THE DEPOSITION: If the court


finds that the perpetuation of the testimony is
proper to avoid a failure or delay of justice, it may
make an order allowing the deposition to be taken.
WRITTEN INTERROGATORIES
PARTIES [Rule 25]

At least twenty (20) days before the date of the


hearing, the court shall cause notice thereof to be
served on the parties and prospective deponents in
the manner provided for service of summons.

TO

ADVERSE

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]

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PROCEDURE

FAILURE TO FILE WRITTEN INTERROGATORIES

(a) By leave of court after jurisdiction has been


obtained over any defendant or over property
which is the subject of the action, or
(b) Without such leave after an answer has been
served, any party desiring to elicit material and
relevant facts from any adverse parties shall file
and serve upon the latter written interrogatories
to be answered by the party served, or if the party
served is a public or private corporation or a
partnership or association, by any officer thereof
competent to testify in its behalf.

A party not served with written interrogatories may


not be compelled by the adverse party to give
testimony in open court, or to give a deposition
pending appeal, UNLESS allowed by the court for
good cause shown and to prevent failure of justice.
CONSEQUENCES OF REFUSAL TO ANSWER

(a) The party serving the interrogatories may apply to


the court for an order to compel an answer.
(b) If court also finds that the refusal to answer was
without substantial justification, it may require
the refusing party or deponent or the counsel
advising the refusal, or both of them, TO PAY THE
PROPONENT
THE
AMOUNT
OF
THE
REASONABLE EXPENSES INCURRED IN
OBTAINING
THE
ORDER,
INCLUDING
ATTORNEY'S FEES [Rule 29, Sec. 1].
(c) Refusal to comply with an order of the court to
compel an answer may be considered
CONTEMPT of that court [Rule 29, Sec. 2]
(d) The subject of discovery shall be DEEMED
ADMITTED OR ESTABLISHED [Rule 29 Sec. 3(a)].
(e) The disobedient party shall be prohibited from
introducing CONTRADICTORY EVIDENCE [Rule
29, Sec. 3(b)]
(f) STRIKING OUT OF PLEADINGS OR PARTS
THEREOF [Rule 29, Sec. 3(c)]
(g) STAYING FURTHER PROCEEDINGS UNTIL THE
ORDER IS OBEYED [Rule 29, Sec. 3(c)]
(h) DISMISSING THE ACTION OR PROCEEDING OR
ANY PART THEREOF [Rule 29, Sec. 3(c)]
(i) RENDERING A JUDGMENT BY DEFAULT
AGAINST THE DISOBEDIENT PARTY; AND [Rule
29, Sec. 3(c)]
(j) In lieu of any of the foregoing orders or in addition
thereto, an order directing the arrest of any party
or agent of a party for disobeying any of such
orders [Rule 29, Sec. 3(c)]

Note: Interrogatories under RULE 25 are served


directly upon the adverse party unlike written
interrogatories under RULE 23 which are delivered to
the officer before whom the deposition is to be taken.
ANSWER

(a) The interrogatories shall be ANSWERED FULLY


IN WRITING and shall be SIGNED AND SWORN
TO BY THE PERSON MAKING THEM.
(b) The party upon whom the interrogatories have
been served shall file and serve a copy of the
answers on the party submitting the
interrogatories within fifteen (15) days after
service thereof unless the court on motion and for
good cause shown, extends or shortens the time.
[Rule 25, Sec. 2]
EFFECT OF OBJECTIONS TO INTERROGATORIES

When objections to any interrogatories is presented


to the court within 10 days after service thereof, with
notice as in case of a motion, the answer shall be
deferred until the objections are resolved [Rule 25,
Sec. 3]
NUMBER OF INTERROGATORIES

No party may, without leave of court, serve more


than one set of interrogatories to be answered by the
same party. [Rule 23, Sec. 4]

REQUEST FOR ADMISSION [Rule 26]


PURPOSE

(a) To allow one party to request the adverse in


writing to admit certain material and relevant
matters which most likely will not be disputed
during the trial.
(b) To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the other to:
(1) admit the genuineness of any material and
relevant document described in and exhibited
with the request; or
(2) admit the truth of any material and relevant
matter of fact set forth in the request [Rule 26,
Sec. 1]

SCOPE OF INTERROGATORIES

Any matter
(a) not privileged, and
(b) relevant to the subject of the pending action,
whether relating to the claim or defense of any
other party, including the existence, description,
nature, custody, condition, and location of any
books, documents, or other tangible things and
the identity and location of persons having
knowledge of relevant facts.
USE OF INTERROGATORIES

Same as Rule 23, Sec. 4 mutatis mutandis.

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(a) good cause shown and


(b) to prevent a failure of justice,
a party who fails to file and serve a request for
admission on the adverse party of material and
relevant facts at issue which ARE, OR OUGHT TO BE,
WITHIN THE PERSONAL KNOWLEDGE OF THE
LATTER [Rule 26, Sec. 5]

WHEN MAY REQUEST BE MADE

At any time after issues have been joined.


Duque v. CA (2002): The request for admission MUST
BE SERVED ON THE PARTY and NOT ON THE
COUNSEL. This is an exception to the general rule
that notices shall be served upon counsel and not
upon the party.

PRODUCTION OR INSPECTION OF DOCUMENTS


OR THINGS [Rule 27]

IMPLIED ADMISSION BY ADVERSE PARTY

EACH OF THE MATTERS OF WHICH AN ADMISSION


IS REQUESTED SHALL BE DEEMED ADMITTED
unless,
(a) within a period designated in the request, which
shall not be less than 15 days after service
thereof, or within such further time as the court
may allow on motion,
(b) the party to whom the request is directed files
and serves upon the party requesting the
admission a SWORN STATEMENT either
(1) denying specifically the matters of which an
admission is requested, or
(2) setting forth in detail the reasons why he
cannot truthfully either admit or deny those
matters.

PROCEDURE

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]

The court in which the action is pending shall issue


an order:
(a) which shall specify the time, place and manner
of making the inspection and taking copies and
photographs, and
(b) which may prescribe such terms and conditions
as are just. [Rule 27, Sec. 1]

DEFERMENT OF COMPLIANCE

To avoid the implied admission, the party requested


may have the compliance of the filing and service of
the sworn statement be deferred by filing with court
objections to the request for admission.

WHAT THE COURT MAY ORDER

(a) To PRODUCE and PERMIT THE INSPECTION and


copying or photographing, by or on behalf of the
moving party, of any 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 and which are in the possession,
custody or control of the party to whom the order
is addressed.
(b) To PERMIT ENTRY upon designated land or other
property in the position or control of the party to
whom the order is addressed for the purpose of
inspecting,
measuring,
surveying,
or
photographing the property or any designated
relevant object or operation thereon. [Rule 27,
Sec. 1]

Compliance shall be deferred until such objections


are resolved by the court. [Rule 26, Sec. 2 par. 2]
EFFECT OF ADMISSION

Any admission made by a party pursuant to such


request is for the purpose of the pending action only
and shall not constitute an admission by him for any
other purpose nor may the same be used against
him in any other proceeding. [Rule 26, Sec. 3]
WITHDRAWAL

The court may allow the party making an admission,


whether express or implied under the Rule to
withdraw or amend it upon such terms as may be
just.

Note: This mode of discovery does not mean that the


person who is required to produce the document or
the thing will be deprived of its possession even
temporarily. It is enough that the requesting party be
given the opportunity to inspect or copy or
photograph the document or take a look at the
thing. (Regalado) (Asked in the 2002 Bar Exam)

The admitting party must file a motion to be relieved


of the effects of his admissions.
EFFECT OF FAILURE TO FILE AND SERVE REQUEST FOR
ADMISSION

General rule: The party who fails to file a request shall


not be permitted to present evidence on such facts.
Exception: Unless otherwise allowed by the court for:

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PHYSICAL AND MENTAL EXAMINATION OF


PERSONS [Rule 28]

BAR OPERATIONS COMMISSION

CONSEQUENCES OF REFUSAL TO COMPLY WITH


MODES OF DISCOVERY
See Annex C.

MOTION REQUESTING EXAMINATION

Requisites
(a) The physical or mental condition of a party (NOT
A WITNESS!) is in controversy
(b) Motion must be filed showing good cause
(c) Notice given to the party to be examined and to
all other parties
(d) Notice must specify the time, place, manner,
conditions and scope of examination
(e) Notice must also specify person/s who will make
the examination

Trial
TRIAL, DEFINED
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)]

COURT TO ISSUE THE ORDER FOR EXAMINATION IN ITS


DISCRETION.
REPORT OF FINDINGS

(a) If requested by the party examined, the party


causing the examination to be made shall deliver
to him a copy of a detailed written report of the
examining physician setting out his findings and
conclusions.
(b) After such request and delivery, the party causing
the examination to be made shall be entitled
upon request to receive from the party examined
a like report of any examination, previously or
thereafter made, of the same mental or physical
condition.
(c) If the party examined refuses to deliver such
report, the court on motion and notice may make
an order requiring delivery on such terms as are
just
(d) If it is the physician who fails or refuses to make
such a report the court may exclude his testimony
if offered at the trial. [Rule 28, Sec. 3]

NOTICE OF TRIAL [Rule 30, Sec. 1]


Upon entry of a case in the trial calendar, the clerk
shall notify parties the date of its trial, ensuring
receipt of the notice at least 5 days before the trial
date.
ADJOURNMENTS AND POSTPONEMENTS [Rule
30, Sec. 2]
General rule: The court may adjourn a trial from day
to day to any stated time, as the expeditious and
convenient transaction of business may require.
Exception: Court may not adjourn for longer than 1
month for each adjournment, nor more than 3
months in all.
Exception to exception: When authorized in writing by
the SC Court Administrator.

WAIVER OR PRIVILEGE

By requesting and obtaining a report of the


examination so ordered or by taking the deposition
of the examiner, the party examined waives any
privilege he may have in that action or any other
involving the same controversy, regarding the
testimony of every other person who has examined
or may thereafter examine him in respect of the
same mental or physical examination.

Note: Postponement is not a matter of right. It is


addressed to the sound discretion of the court.
[Riano, citing Garces v Valenzuela (1989)]
REQUISITES OF MOTION TO POSTPONE TRIAL
(a) for absence of evidence
(b) for illness of party or counsel

PHYSICIAN-PATIENT PRIVILEGE

Ground for
postponement
of trial

(a) Inapplicable because the results of the


examination are intended to be made public.
(b) Such examination is not necessary to treat or cure
the patient but to assess the extent of injury or to
evaluate his physic al or mental condition.

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UP COLLEGE OF LAW

Ground for
postponement
of trial
For absence of
evidence [Rule
30, Sec. 3]

For illness of
party/counsel
[Rule 30, Sec. 4]

CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

3rd-party defendant (if any) shall adduce evidence


of his defense, counterclaim, cross-claim and 4thparty complaint;

Requisite for motion to postpone


Affidavit showing:
(a) The materiality/relevancy of
such evidence;
(b) That due diligence has been
used to procure the evidence

4th-party (and so forth) shall adduce evidence of


the material facts pleaded by them;

But if the adverse party admits


the facts to be given in evidence,
trial shall not be postponed even
if he objects or reserves the right
to object to their admissibility.
Affidavit or sworn certification:
(a) That the presence of such
party/counsel at the trial is
indispensable;
(b) That the character of his
illness is such as to render his
non-attendance excusable.

Parties whom any counterclaim or cross-claim has


been pleaded, shall adduce evidence in support of
their defense, in the order prescribed by the court.
Parties may
evidence only.

respectively

adduce

rebutting

Exception: When the court permits them to adduce


evidence upon their original case, for good reasons
and in furtherance of justice.

SUBPOENA

See separate part for Subpoena BUT please take note


that Subpoenas are issued within the context of a Trial
and taking depositions under Modes of Discovery.

Upon admission of evidence, the case shall be


deemed submitted for decision, unless the court
directs the parties to argue or to submit their
respective memoranda or any further pleadings.

AGREED STATEMENT OF FACTS [Rule 30, Sec. 6]


(a) Parties may agree in writing upon the facts
involved in the litigation, and submit the case for
judgment without introduction of evidence.
(b) If the parties agree to only some of the facts in
issue, trial shall be held as to the disputed facts in
such order as the court shall prescribe.

If several defendants or 3rd-party defendants having


separate defenses appear by different counsel, the
court shall determine the relative order of
presentation of their evidence.
CONSOLIDATION OR SEVERANCE OF HEARING
OR TRIAL
CONSOLIDATION OF TRIAL [Rule 31, Sec. 1]
When actions involving common question of law/fact
are pending before the court, it may:
(a) Order a joint hearing/trial of any/all the matters
in issue in the actions;
(b) Order all the actions consolidated;
(c) Make such orders concerning the proceedings as
to avoid unnecessary costs or delay.

ORDER OF TRIAL; REVERSAL OF ORDER


CONDUCT OF TRIAL [Rule 30, Sec. 5]
General rule: Trial shall be limited to the issues stated
in the pre-trial order.
Exception:
(a) Provisions on separate trials in Rule 31, Sec. 2
(b) When for special reasons the court directs
otherwise.

Where a case has been partially tried before one


judge, the consolidation of the same with another
related case pending before another judge who had
no opportunity to observe the demeanor of the
witness during trial makes the consolidation not
mandatory. [PCGG v. Sandiganbayan (1992)]

GENERAL ORDER OF TRIAL

Plaintiff shall adduce evidence in support of his


claim;

Defendant shall adduce evidence in support of his


defense, counterclaim, cross-claim and 3rd-party
complaint;

SEVERANCE OF TRIAL [Rule 31, Sec. 2]

The court may issue separate trials for convenience


or to avoid prejudice:
(a) Of any claim, cross-claim, counterclaim or 3rdparty complaint;

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(b) Of any separate issue;


(c) Of any number of claims, cross-claims,
counterclaims, 3rd-party complaints or issues.

MEETING: The commissioner shall set a time/place


for the first meeting and shall notify
parties/counsels.

STATEMENT OF JUDGE [Rule 30, Sec. 7]

REPORT: Upon completion of the trial/hearing, the


commissioner shall file a written report with the
court.

During the hearing/trial of the case, any statement


made by the judge shall be made of record in the
TSN
if
made
with
reference
to
the
case/parties/witnesses/ counsels.

NOTICE: The clerk shall notify parties of the filing of


the report. The parties have 10 days to object to the
reports findings.

SUSPENSION OF ACTIONS [Rule 30, Sec. 8]

Governed by the CC provisions

HEARING: After the 10 days, the report shall be set


for hearing. The court may issue an order
adopting/modifying/rejecting the report or part of it.

DELEGATION OF RECEPTION OF EVIDENCE [Rule


30, Sec. 9]

When parties stipulate that the Commissioner's


findings of fact are final, only questions of law shall
thereafter be considered.

General rule: The judge of the court where the case is


pending shall personally receive the evidence to be
adduced by the parties.

POWERS OF THE COMMISSIONER [Rule 32, Sec. 3]

Exception: The court may delegate the reception of


evidence to its clerk of court who is a member of the
bar in:
(a) Default hearings;
(b) Ex parte hearings;
(c) Cases where parties agree in writing.

When a reference is made, the clerk shall forthwith


furnish the commissioner with a copy of the order of
reference. The order may:
(a) Specify/limit the commissioners power
(b) Direct him to report only upon particular issues,
to do/perform particular acts, or direct him to
receive and report evidence only
(c) May fix the date for beginning and closing the
hearings and for the filing of his report.

However, the clerk of court has no power to rule on


objections to any question/admission of exhibits.
Objections shall be resolved by the court upon
submission of the clerks report and TSN within 10
days from termination of the hearing.

Powers of the Commissioner:


(a) Regulate the proceedings in every hearing before
him [subject to other specifications & limitations
in the order]
(b) Power to do all acts and take all measures
necessary or proper for the efficient performance
of his duties under the order [subject to other
specifications & limitations in the order]
(c) He may issue subpoenas and subpoenas duces
tecum, swear witnesses.
(d) He may rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference.

TRIAL BY COMMISSIONERS
COMMISSIONER Includes a referee, an auditor or
an examiner. [Rule 32, Sec. 1]
KINDS OF TRIAL BY COMMISSIONER [Rule 32, Secs. 1 & 2]

(a) Reference by consent of both parties.


(b) Reference ordered on motion when:
(1) Trial of an issue of fact requires the
examination of a long account on either side
(2) Taking of an account is necessary for the
courts information before judgment, or for
carrying judgment/order into effect.
(3) A question of fact, other than upon the
pleadings, arises in any stage of a case or for
carrying a judgment/order into effect.

The trial or hearing before him shall proceed in all


respects as it would if held before the court.
COMMISSIONERS REPORT; NOTICE TO PARTIES AND
HEARING ON THE REPORT

Report of commissioner [Rule 32, Sec. 9]


Upon the completion of the trial or hearing or
proceeding before the commissioner, he shall file
with the court his report in writing upon the matters
submitted to him by the order of reference.

REFERENCE BY CONSENT OR ORDERED ON MOTION

Order of reference [Rule 32, Sec. 2 to 12]


ORDER OF REFERENCE: When a reference is made,
the clerk shall furnish the commissioner with a copy
of the order of reference.

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When his powers are not specified or limited, he shall


set forth his findings of fact and conclusions of law in
his report.

BAR OPERATIONS COMMISSION

Grant of demurrer
The case
dismissed

He shall attach thereto all exhibits, affidavits,


depositions, papers and the transcript, if any, of the
testimonial evidence presented before him.
Notice to parties of the filing of report [Rule 32, Sec.
10]
Upon the filing of the report, the parties shall be
notified by the clerk, and they shall be allowed 10
days within which to signify grounds of objections to
the findings of the report, if they so desire.

shall

Denial of demurrer
be

Plaintiff's remedy would


be to appeal.

Objections to the report based upon grounds which


were available to the parties during the proceedings
before the commissioner, other than objections to
the findings and conclusions therein, set forth, shall
not be considered by the court unless they were
made before the commissioner.

The defendant shall have


the right to present
evidence
The court should set the
date for the reception of
the
defendants
evidence-in-chief
[Northwest Airlines v. CA
(1998)]
xxx

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)]

Hearing on the report [Rule 32, Sec. 11]


Upon the expiration of the 10-day period in Rule 32,
Sec. 10, the report shall be set for HEARING.

The appellate court


should render judgment
on the basis of the
evidence submitted by
the
plaintiff.
[Radiowealth Finance v.
Del Rosario (2000)]
Equivalent to judgment
(i.e. based on the merits
of
the
evidence
presented so far)

After which the court shall issue an ORDER:


(a) Adopting (in whole or in part),
(b) Modifying (in whole or in part)
(c) Rejecting the report (in whole or in part),
(d) Recommitting the report with instructions, or
(e) Requiring the parties to present further evidence
before the commissioner or the court.

Demurrer to Evidence

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)]

GROUND

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]

MTD

When to File
Before the service and After the plaintiff rests
filing of the answer
his case
Ground
Those enumerated in Only
ground:
The
Rule 16
plaintiff has shown no
right to relief (i.e.
evidence is insufficient)
Effect
If a MTD is granted,
the
complaint
is
likewise
dismissed.
But, depending on the
ground, the complaint
may be re-filed

It is invoked after the plaintiff has presented all the


evidence available to him.
EFFECT OF DENIAL; EFFECT OF GRANT
Grant of demurrer

Demurrer

Denial of demurrer

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MTD

(c) Parties must have been given an opportunity to


adduce evidence in their behalf;
(d) Evidence must have been considered by the
tribunal in deciding the case; [Acosta v. COMELEC
(1998)]
(e) Judgment must be in writing, personally and
directly prepared by the judge;
(f) Note: A verbal judgment is, under the law,
ineffective. [Corpus v. Sandiganbayan (2004)]
(g) 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]

Demurrer

If the MTD is denied,


the defendant shall file
his
responsive
pleading
WAIVER OF RIGHT TO PRESENT EVIDENCE
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)]

A decision need not be a complete recital of the


evidence presented. So long as the factual and legal
bases are distinctly and clearly set forth, the
judgment is valid. [People v. Baring (2002)]

DEMURRER TO EVIDENCE IN A CIVIL CASE V.


DEMURRER TO EVIDENCE IN A CRIMINAL CASE
DIFFERENCES BETWEEN
CRIMINAL CASES (Asked

Exams)
Demurrer in civil cases

DEMURRER

IN

CIVIL

BAR OPERATIONS COMMISSION

AND

in the 2003 and 2007 Bar

Defendant need not ask


for leave of court

If the demurrer is
granted, the order of
dismissal is appealable
If a demurrer is denied,
the defendant may
proceed to present his
evidence

KINDS OF JUDGMENT

(1) JUDGMENT UPON 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.

Demurrer in criminal
cases
May be filed with or
without leave of court.
Note: Leave of court is
necessary so that the
accused can present his
evidence in case the
demurrer is denied [Rule
119, Sec. 23]
The order of dismissal is
not appealable because
it will constitute double
jeopardy
The accused may adduce
his evidence only if the
demurrer is field with
leave of court

(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.

Judgments and Final Orders

Judgment upon
compromise

Judgment by confession

The provisions and terms


are settled by the parties
to the action. The
judgment is entered in
the record by consent of
the court.

An
affirmative
and
voluntary act of the
defendant himself. The
court exercises a certain
amount of supervision
over the entry of
judgment.

Kinds of judgment by confession:


(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.
(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.

JUDGMENT
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)]
[Rule 36, Sec. 1; Art.
8, Sec. 14, 1987 Constitution] [AJOEWS]
(a) Court/tribunal must be with authority to hear and
determine the matter before it;
(b) Court must have jurisdiction over the parties and
the subject matter;
REQUISITES OF A VALID JUDGMENT

Remedy against judgment by consent, confession


or compromise is to first file a motion to set it

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aside; if denied, file the appropriate petition


under Rule 65.

BAR OPERATIONS COMMISSION

may stay its enforcement until rendition of


subsequent judgments, and may prescribe
conditions to secure the judgments benefits.

(3) JUDGMENT UPON THE MERITS - It is one that is


rendered after consideration of the evidence
submitted by the parties during the trial of the
case. A judgment is on the merits when it
amounts to a legal declaration of the respective
rights and duties of the parties, based upon the
disclosed facts

Judgment may be given for/against one or more


of several plaintiffs/defendants. The court may
require the parties on each side to file adversary
pleadings as between themselves. [Rule 36, Sec.
3]

(4) CLARIFICATORY JUDGMENT - It is rendered to


clarify an ambiguous judgment or one difficult
to comply with.

If judgment is rendered against 2 or more


persons sued as an entity without juridical
personality, the judgment shall set out their
individual names (if known). [Rule 36, Sec. 6]

(5) JUDGMENT NUNC PRO TUNC - Literally, now


for then. It is a judgment intended to enter into
the record the acts which had already been
done, but which do not appear in the records.
[Lichauco v. Tan Pho (1923)]

(10) PROMULGATION - The process by which a


decision is published, officially announced,
made known to the public or delivered to the
clerk of court for filing, coupled with notice to
the parties or their counsel.

(6) JUDGMENT SIN PERJUICIO - It may refer to a


dismissal of a case without prejudice to it being
re-filed.

(11) MEMORANDUM DECISION - A decision of the


appellate court which adopts the findings and
conclusions of the TC.
(a) A judgment is considered rendered upon the
filing of the signed decision.
(b) This includes an amended decision because
an amended decision is a distinct and
separate judgment and must follow the
established procedural rule.

(7) CONDITIONAL JUDGMENT - It is one the


effectivity of which depends upon the occurrence
or non-occurrence of an event. Such a judgment
is generally void because of the absence of a
disposition [Cu-Unjieng v. Mabalacat Sugar Co.
(1940)]

JUDGMENT WITHOUT TRIAL


WHEN TRIAL IS NOT NECESSARY PSADSA (Asked in the
1996 Bar Exams) [Riano]
(a) The pleadings of the parties tender no issue at all
judgment on the pleadings may be directed by
the court [Rule 34]
(b) There is actually no genuine issue from the
pleadings, affidavits, depositions and other
papers court may render a summary judgment
[Rule 35]
(c) Parties entered into a compromise or an amicable
settlement either during the pre-trial or during
the trial [Rule 18; Art. 2028 Civil Code]
(d) Complaint has been dismissed with prejudice
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec. 5 (last
par.)]
(e) Case falls under the Rules on Summary
Procedure
(f) Agreed statement of facts [Rule 30, Sec. 6]

(8) SEVERAL JUDGMENT - It is one rendered by a


court against one or more defendants and not
against all of them, leaving the action to
proceed against the others. [Rule 36, Sec. 4] It is
proper when the liability of each party is clearly
separate and distinct from his co-parties such
that the claims against each of them could have
been the subject of separate suits, and the
judgment for or against one of them will not
necessarily affect the other.
(9) SEPARATE JUDGMENT - It is one rendered
disposing of a claim among several others
presented in a case, after a determination of the
issues material to a particular claim and all
counterclaims arising out of the transaction or
occurrence that is the subject matter of said
claim. [Rule 36, Sec. 5] It is proper when more
than one claim for relief is presented in an action
for the determination as to the issues material to
the claim has been made.

CONTENTS OF A JUDGMENT
PARTS OF A JUDGMENT

(a) Body, Ratio decidendi, or Opinion of the court It


contains the findings of facts and conclusions of
law;

The judgment shall terminate the action with


respect to the claims disposed of, and shall
proceed as to the remaining claims. The court

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(b) 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]
(c) Signature of the judge.

BAR OPERATIONS COMMISSION

(b) Admits the material allegations of the adverse


partys pleading.
CANNOT BE RENDERED MOTU PROPRIO

A judgment on the pleadings can be done only upon


MOTION to that effect filed by the appropriate party.
It cannot be rendered by the court motu proprio.
Exception: If at pre-trial the court finds that a
judgment on the pleadings is proper, it may render
such judgment motu proprio. [Rule 18, Sec. 2(g)]

DISTINCTION BETWEEN JUDGMENT AND OPINION OF THE


COURT (ASKED IN THE 2006 BAR EXAM)

(a) A judgment (or FALLO) must be distinguished


from an opinion.
(b) The latter is the informal expression of the views
of the court and cannot prevail against its final
order or decision.
(c) While the two may be combined in one
instrument, the opinion forms no part of the
judgment.
(d) So there is a distinction between the findings and
conclusions of a court and its judgment.
(e) While they may constitute its decision and
amount to a rendition of a judgment they are not
the judgment itself.
(f) They amount to nothing more than an order for
judgment, which, of course, must be
distinguished from the judgment. [Freeman on
Judgments, Vol. I, 5th Edition, page 6, quoted in
Casilan v. Salcedo (1969)]

WHEN JUDGMENT ON THE PLEADINGS WILL NOT APPLY

(a) Declaration of nullity of marriage;


(b) Annulment of marriage;
(c) Legal separation.
Effect: judgment on the pleadings will not lie and
material facts alleged in the complaint must always
be proved
EFFECTS

(a) By moving for judgment on the pleadings, the


plaintiff waives his claim for unliquidated
damages (because claims for such damages
must be alleged and proved).
(b) One who prays for the judgment on the pleadings
without offering proof as to the truth of his own
allegations and without giving the opposing party
an opportunity to introduce evidence must be
understood to admit all material and relevant
allegations of the opposing party and to rest his
motion for judgment upon those allegations
taken together with such of his own as are
admitted in the pleadings. [Falcasantos v. How
Suy Ching (1952)]

CONFLICT BETWEEN THE DISPOSITIVE PORTION AND BODY


OF THE DECISION

Rule: Where there is a conflict between the fallo and


the body of the decision, the fallo controls.
Qualification: This rule applies only when the
dispositive part is definite, clear, and unequivocal
[Union Bank v. Pacific Equipment Corporation (2008)]

SUMMARY JUDGMENTS [Rule 35] (Asked in the


1986, 1989, 1996 and 1999 Bar Exams)

Basis: The fallo is the final order. The opinion in the


body is merely a statement ordering nothing [Poland
Industrial Limited v. National Development Company
(2005)]

DEFINITION, NATURE

A judgment granted by the court for the prompt


disposition of civil actions, if it clearly appears (after
the issues had been joined and on the basis of the
pleadings and papers filed) that there exists no
genuine issue/controversy as to any material fact,
except as to the amount of damages. [Ley
Construction v. Union Bank (2000); Agbada v InterUrban Developers (2002); Raboca v. Velez (2000)]

JUDGMENT ON THE PLEADINGS [Rule 34] (Asked


in the 1999 and 2005 Bar Exams)
GROUNDS:

If the answer either


(a) Fails to tender an issue;
Note: An answer fails to tender an issue due to
either:
(1) General denial of the material allegations of
the complaint;
(2) Insufficient denial of the material allegations
of the compliant.

Also called accelerated judgment.


GENUINE ISSUE

(a) An issue of fact which calls for the presentation of


evidence; as distinguished from an issue which is
sham, fictitious, contrived and patently

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insubstantial so as not to constitute a genuine


issue for trial.
(b) When the facts as pleaded appear uncontested or
undisputed, then there is no real/genuine issue
as to the facts.
(c) The TC cannot motu propio issue a summary
judgment. A party must move for summary
judgment. [Riano]

(d) Answers to interrogatories. (Rule 25)

PROCEDURE [Rule 35, Sec. 3]

Adverse party may serve opposing affidavits,


depositions or admissions at least 3 days before the
hearing

Duty of Court [Rule 35, Sec. 4]


(a) Ascertain what material facts exist without
substantial controversy and what are actually and
in good faith controverted based on:
(1) An examination of the pleadings and evidence
before it
(2) Interrogation of the counsel
(b) Make an order specifying the facts and the extent
of the amount of damages that appear without
substantial controversy
(c) Direct further proceedings as are just
(d) Conduct trial on the controverted facts
accordingly

Hearing Court shall determine if a genuine issue


as to any material fact exists and if the movant is
entitled to a summary judgment as a matter of law

Effect
A partial summary judgment is not a final judgment,
but merely a pre-trial adjudication that said issues in
the case shall be deemed established for the trial of
the case. [Guevarra v. CA (1983)]

WHEN THE CASE NOT FULLY ADJUDICATED

Partial summary judgment (Asked in the 2004 Bar


Exam)
Applies when for some reason there can be no full
summary judgment. Trial should deal only with the
facts not yet specified or established.

Movant files a motion for summary judgment with


supporting affidavits, depositions or admission

Service to the adverse party at least 10 days the


hearing

AFFIDAVITS AND ATTACHMENTS

Form of affidavits and supporting papers [Rule 35,


Sec. 5]
(a) Made on personal knowledge
(b) Shall set forth such facts as would be admissible
in evidence
(c) Shall show affirmatively that the affiant is
competent to testify to the matters stated
therein.

Judgment
FOR THE CLAIMANT [Rule 35, Sec. 1]
FOR THE DEFENDANT [Rule 35, Sec. 2]

Who may file the


motion
Claimant
Defendant

When

Attachments [Rule 35, Sec. 5]


Certified true copies of all papers or parts thereof
referred to in the affidavit shall be attached thereto
OR served therewith.

May file the motion only after


the answer has been served
May file the motion any time

Affidavits in bad faith [Rule 35, Sec. 5]


Definition Affidavits presented under this Rule
which appear to the court at any time as presented in
bad faith or solely for the purpose of delay

Filing of a motion for summary judgment does not


interrupt the running of the period for filing an
answer. Hence, the movant must also file a Motion
for Extension of Time to File Answer.

Effects:
(a) Court shall order the offending party or counsel
to pay the other party amount of reasonable
expenses which the filing of the affidavits caused
him to incur, including attorneys fees
(b) Court may adjudge the offending party or counsel
guilty of contempt, after hearing

Bases of summary judgment: When, upon the


following, no genuine issue as to any material fact
exists:
(a) Affidavits made on personal knowledge;
(b) Depositions of the adverse or a 3rd party; (Rule
23)
(c) Admissions of the adverse party; (Rule 26)

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JUDGMENT ON THE PLEADINGS VERSUS


SUMMARY JUDGMENTS
Summary
Judgment on
Judgment by
judgment
the pleadings
default
Based on the Based solely Based on the
pleadings,
upon
the complaint
and
depositions,
pleadings
evidence, if court
admissions
requires
its
and affidavits
presentation
There is no The answer No issues as no
genuine issue fails to tender answer is filed by
between the an issue or the
defending
parties
there is an party
admission of
the material
allegations
Available
to Generally
Available to the
both plaintiff available only plaintiff alone
and defendant to
the
plaintiff,
unless
the
defendant
presents
a
counterclaim
10-day notice 3-day notice 3-day notice rule
required
required
applies
May
be On the merits On the merits
interlocutory or
on the merits
Usually
Available in Available in any
available
in any
action, action,
except
actions
to except
annulment
of
recover a debt, annulment of marriage or legal
or
for
a marriage or separation cases
liquidated sum legal
of money, or separation
for declaratory cases
relief

BAR OPERATIONS COMMISSION

PERIOD WITHIN WHICH DECISION IS TO BE RENDERED [1987

Constitution, Art. VIII, Sec. 15]


(a) All cases filed must be decided or resolved by the
Supreme Court within 24 months from the date
of their submission for decision.
(b) Unless reduced by the SC, within 12 months for
lower collegiate courts and within 3 months for
all other lower courts.
A case is deemed submitted for resolution upon the
filing of the last pleading, brief or memorandum
required by the Rules of Court or by the court.
An extension of the period may be set by the SC
upon request by the judge concerned on account of
heavy caseload or by other reasonable excuse [Arap v
Mustafa (2002)]
INTERPRETATION OF THE JUDGMENT

Where the judgment is difficult to execute because of


ambiguity in its terms, the remedy of the party is to
file a motion for clarificatory judgment and not to
assail the judgment as void. [Poland Industrial
Limited v National Development Company (2005)]
ENTRY OF JUDGMENT AND FINAL ORDER
DEFINITION OF ENTRY OF JUDGMENT

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]
Rendition of judgment
Filing of the judgment
with the clerk of court

RENDITION OF JUDGMENTS AND FINAL ORDERS


FORM OF JUDGMENT [Rule 36, Sec. 1]
(a) In writing
(b) Personally and directly prepared by the judge
(c) Stating clearly & distinctly the facts and the law
on which it is based
(d) Signed by the judged
(e) Filed with the clerk of court.

Entry of judgment
Act of clerk of court in
entering the dispositive
portion of the judgment
in the book of entries of
judgment

[Rule 36, Sec.


2]
If there is no appeal/MNT/MFR filed within the
prescribed periods, the clerk of court shall enter the
judgment or final order in the book of entries of
judgments.
ENTRY OF JUDGMENTS AND FINAL ORDERS

DEFINITION OF RENDITION OF JUDGMENT

It is the filing of the judgment with the clerk of court. It


is not the pronouncement of the judgment in open
court that constitutes the rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has not
yet been filed with the clerk of court and before its
filing does not yet constitute the real judgment of the
court. [Ago v. CA (1962)]

Date of finality of the judgment = Date of its entry in


the book
Note: the periods for filing the following pleadings
are reckoned from the date of entry of judgment
(a) Execution of a judgment by motion (5 years from
entry) [Rule 39, Sec. 6]

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(b) Petition for relief (as one of its periods, not more
than 6 months from entry of the judgment or
final order) [Rule 38, Sec. 3]

BAR OPERATIONS COMMISSION

Rule 65. It does not apply to cases that fall under


Summary Procedure.
GROUNDS

The record:
(a) Shall contain the judgments dispositive part
(b) Shall be signed by the clerk of court with a
certificate that the judgment has become final
and executory.

Rule 37, Sec.1. Grounds of and period for filing motion


for new trial or reconsideration.Within the period for
taking an appeal, the aggrieved party may move the
trial court to set aside the judgment or final order
and grant a new trial for one or more of the following
causes materially affecting the substantial rights of
said party:
(a) Fraud, accident, mistake or excusable negligence
which ordinary prudence could not have guarded
against and by reason of which such aggrieved
party has probably been impaired in his rights; or
(b) Newly discovered evidence, which could not, with
reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.

(Asked in the 2008 Bar


Exams)
The power to amend judgments is inherent to the
court before judgment becomes final and executory.
AMENDMENTS TO JUDGMENT

General rule: The court cannot amend the judgment


once it has become final and executory.
Exception:
(a) To make corrections of clerical errors, not
substantial amendments, as by an amendment
non pro tunc;
(b) To clarify an ambiguity which is borne out by and
justifiable in the context of the decision;
(c) In judgments for support, which can always be
amended from time to time.
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

Within the same period, the aggrieved party may


also move for reconsideration upon the grounds that
the damages awarded are excessive, that the
evidence is insufficient to justify the decision or final
order, or that the decision or final order is contrary
law.

Supplemental decision

Grounds for a motion for reconsideration


(a) The evidence is insufficient to justify the decision;
(b) The damages awarded are excessive;
(c) The decision or final order is contrary to law.

Does not take the place


of or extinguish the
original judgment
Serves to add to the
original judgment

Form and content of a motion for reconsideration


Motion for reconsideration must be in writing, a
written notice of which must be served on the adverse
party.
It is not sufficient to mention the ground relied upon.
It is necessary for the motion for reconsideration to
point out specifically the findings or conclusions of the
judgment or final order which are not supported by the
evidence or which are contrary to law, making express
reference to the testimonial or documentary
evidence or to the provisions of law alleged to be
contrary to such findings or conclusions.

Post-Judgment Remedies
REMEDIES BEFORE FINALITY OF JUDGMENT
(a) Motion for Reconsideration
(b) Motion for New Trial
(c) Appeal

Non-compliance with this requirement would reduce


the motion to a mere pro forma motion, which shall
not toll the period for appeal.

MOTION FOR NEW TRIAL OR RECONSIDERATION

Grounds for motion for new trial


The aggrieved party may move the trial court to set
aside the judgment or final order and grant a new
trial for one or more of the following causes
materially affecting the substantial rights of the said
party:

MOTION FOR RECONSIDERATION

A motion for reconsideration under Rule 37 is


directed against a judgment or final order. It is not
the motion for reconsideration of interlocutory order,
which often precedes a petition for certiorari under

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(a) FAME (Extrinsic Fraud, Accident, Mistake or


Excusable Negligence) which ordinary prudence
could not have guarded against and by reason of
which the aggrieved party has probably been
impaired in his rights.
(1) The motion shall be supported by affidavits of
merit. Non-compliance with this requirement
would reduce the motion to a mere pro forma
motion.
(2) The affidavits of merit must show the facts
(not mere conclusions or opinions)
constituting the valid cause of action or
defense which the movant may prove in case a
new trial is granted. Otherwise, if the
complaint is after all groundless or the
defense is ineffective, a new trial would serve
no purpose.
(b) Newly discovered evidence, which he could not,
with reasonable diligence, have discovered and
produced at the trial, and which if presented
would probably alter the result.
(1) The motion shall be supported by: affidavits of
the witnesses by whom such evidence is
expected to be given; and/or duly
authenticated documents which are proposed
to be introduced in evidence.
(2) Non-compliance with this requirement would
reduce the motion to a mere pro forma
motion.

BAR OPERATIONS COMMISSION

appealed from. The 15-day period is deemed to


commence upon receipt by the counsel of record,
which is considered notice to the parties. Service
upon the parties themselves is prohibited and is not
considered as official receipt of judgment.
No motion for extension of time shall be allowed.
Where a record on appeal is required, the appellant
shall file:
(a) a notice of appeal, and
(b) record on appeal within 30 days from notice of
the judgment or final order.
A record on appeal is required only in:
(a) Special proceedings;
(b) Other cases of multiple or separate appeals.
Resolution of the motion
Rule 37, Sec. 4. Resolution of motion. A motion for
new trial or reconsideration shall be resolved within
30 days from the time it is submitted for resolution.
Effect of filing
The filing of a timely motion interrupts the period to
appeal.
The 30-day period to resolve the motion is held to be
mandatory [Gonzales v. Bantolo (2006)]
Rule 37, Sec. 3. Action upon motion for new trial or
reconsideration.The trial court may set aside the
judgment or final order and grant a new trial, upon
such terms as may be just, or may deny the motion. If
the court finds that excessive damages have been
awarded or that the judgment or final order is
contrary to the evidence or law, it may amend such
judgment or final order accordingly.

Tumang v. CA (1989): Newly discovered evidence may


and does commonly refer to evidence already in
existence prior to or during trial but which could not
have been secured and presented during the trial
despite reasonable diligence on the part of the
litigant.
Extrinsic fraud: any fraudulent scheme executed by
the prevailing party outside of the trial against the
losing party who, because of such fraud, was
prevented from presenting his side of the case.

DENIAL OF THE MOTION; EFFECT

Denial of motion for reconsideration


The judgment or final order shall stand as is.

Intrinsic fraud: acts of a party during the trial which


does not affect the presentation of the case.

Rule 37, Sec. 7. Partial new trial or reconsideration.If


the grounds for a motion under this Rule appear to
the court to affect the issues as to only a part, or less
than all of the matter in controversy, or only one, or
less than all, of the parties to it, the court may order
a new trial or grant reconsideration as to such issues
if severable without interfering with the judgment or
final order upon the rest.

Accident: an event that occurs without ones foresight


or expectation.
Mistake: generally, mistakes of facts or law where, in
good faith, the defendant was misled in a case.
WHEN TO FILE

Single motion rule


Rule 37, Sec. 5. Second motion for new trial.A
motion for new trial shall include all grounds then
available and those not so included shall be deemed
waived. A second motion for new trial based on a

The motion must be filed within the period for


appeal.
The period for appeal is within 15 days after notice to
the appellant of the judgment or final order

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ground not existing or available when the first


motion was made, may be filed within the time
herein provided excluding the time during which the
first motion had been pending.

Habaluyas v. Japson (1986): A motion for new trial or


reconsideration is not a prerequisite to an appeal, a
petition for review or a petition for review on
certiorari. And since the purpose is to expedite the
final disposition of cases, a strict but prospective
application of said ruling is in order.

No party shall be allowed a second motion for


reconsideration of a judgment or final order.
The prohibition on a second motion does not apply
to a motion for reconsideration of an interlocutory
order.

Fresh period rule


Neypes v. CA (2005): If the motion is denied, the
movant has a fresh period of 15 days from receipt
or notice of the order denying the motion for new
trial or motion for reconsideration within which to file
an appeal.

Denial of motion for new trial


The judgment or final order shall stand as is.
Rule 37, Sec. 8. Effect of order for partial new trial.
When less than all of the issues are ordered retried,
the court may either enter a judgment or final order
as to the rest, or stay the enforcement of such
judgment or final order until after the new trial.

This fresh period rule shall also apply to:


(a) Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts;
(b) Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals;
(c) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(d) Rule 45 governing appeals by certiorari to the
Supreme Court.

When there is an order for partial new trial, the court


may either enter a judgment or final order as to the
rest, or stay the enforcement of such judgment or
final order until after the new trial.
When a second motion for new trial is permissible:
When a ground for new trial was not existing or
available when the first motion was made.

The new rule aims to regiment or make the appeal


period uniform, to be counted from receipt of the
order denying the motion for new trial, motion for
reconsideration (whether full or partial) or any final
order or resolution.

GRANT OF THE MOTION; EFFECT

Grant of motion for reconsideration


The court may amend the judgment or final order
accordingly. The amended judgment is in the nature
of a new judgment, which supersedes the original
judgment.

APPEALS IN GENERAL
JUDGMENTS AND FINAL ORDERS SUBJECT TO APPEAL

Rule 41 [as amended by A.M. 07-7-12 (2007)]


SECTION 1. Subject of appeal. An appeal may be
taken from a judgment or final order that completely
disposes of the case, or of a particular matter therein
when declared by these Rules to be appealable.

Grant of motion for new trial


The original judgment shall be vacated, and the
action shall stand for trial de novo. The recorded
evidence upon the former trial shall be used at the
new trial without retaking them (if they are material
and competent).
REMEDY WHEN MOTION IS DENIED, FRESH
RULE

BAR OPERATIONS COMMISSION

No appeal may be taken from:


(a) An order denying a petition for relief or any
similar motion seeking relief from judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a
judgment by consent, confession or compromise
on the ground of fraud, mistake or duress, or any
other ground vitiating consent;
(e) An order of execution;
(f) A judgment or final order for or against one or
more of several parties or in separate claims,
counterclaims, cross-claims and third-party
complaints, while the main case is pending,
unless the court allows an appeal therefrom; and
(g) An order dismissing an action without prejudice.

15-DAY PERIOD

Rule 37, Sec. 9. Remedy against order denying a


motion for new trial or reconsideration. An order
denying a motion for new trial or reconsideration is
now appealable. (As modified by AM 07-7-12)
Remedy if motion is denied
(a) To appeal from the judgment or final order itself.
(b) The order denying the motion for new trial or
reconsideration may itself be assailed by a
petition for certiorari under Rule 65.

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MODES OF APPEAL

In any of the foregoing circumstances, the aggrieved


party may file an appropriate special civil action as
provided in Rule 65.

Ordinary appeal
Procedure in the Court of Appeals
Ordinary appealed cases
Rule 44, Sec. 1. Title of cases. In all cases appealed
to the Court of Appeals under Rule 41, the title of the
case shall remain as it was in the court of origin, but
the party appealing shall be further referred to as the
appellant and the adverse party as the appellee.

Significance of the amendment


An order denying motion for new trial or
reconsideration is NOW APPEALABLE!
Final Order

Interlocutory Order

Disposes of the matter


in its entirety, leaving
nothing more to be done
but to enforce execution
Appealable

Does not dispose of a


case completely but
leaves something more
to be decided upon.
Not appealable except
through a petition for
certiorari under Rule 65
No need to comply with
such a requirement

Must
clearly
and
distinctly state the law
and the facts on which it
is based

Counsels and guardians


Rule 44, Sec. 2. Counsel and guardians. The
counsel and guardians ad litem of the parties in the
court of origin shall be respectively considered as
their counsel and guardians ad litem in the Court of
Appeals. When others appear or are appointed,
notice thereof shall be served immediately on the
adverse party and filed with the court.
Order of transmittal of record
Rule 44, Sec. 3. Order of transmittal of record. If the
original record or the record on appeal is not
transmitted to the Court of Appeals within 30 days
after the perfection of appeal, either party may file a
motion with the trial court, with notice to the other,
for the transmittal of such record or record on
appeal.

MATTERS NOT APPEALABLE

Not appealable under Rule 41


(a) Order denying motion for new trial or
reconsideration;
(b) Order denying petition for review or any similar
motion seeking relief from judgment;
(c) Interlocutory order;
(d) Order disallowing/dismissing appeal;
(e) Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other vitiation
of consent;
(f) Order of execution;
(g) While the case is pending, judgment or final
order:
(1) For/against one or more of several parties;
(2) In separate claims, counterclaims, crossclaims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.

Case docketing
Rule 44, Sec. 4. Docketing of case. Upon receiving
the original record or the record on appeal and the
accompanying documents and exhibits transmitted
by the lower court, as well as the proof of payment of
the docket and other lawful fees, the clerk of court of
the Court of Appeals shall docket the case and notify
the parties thereof.
Within 10 days from receipt of said notice, the
appellant, in appeals by record on appeal, shall file
with the clerk of court approved record on appeal
Any unauthorized alteration, omission or addition in
the approved record in appeal shall be a ground for
dismissal of the appeal.

Note: An interlocutory order is one that does not


finally dispose of the case, and does not end the
court's task of adjudicating the parties contentions
and determining their rights and liabilities as regards
each other, but obviously indicates that other things
remain to be done. [BPI v. Lee (2012)]

Note: Unless otherwise directed by the court, the


number of court- bound papers that a party is
required or desires to file In the Court of Appeals,
one original (properly marked) and two copies with
their annexes [Efficient Use of Paper Rule, AM 11-94-SC, Section 5]

REMEDY AGAINST JUDGMENTS AND ORDERS WHICH ARE


NOT APPEALABLE

In the 8 cases not appealable under Rule 41, the


aggrieved party may file a special civil action under
Rule 65. [Rule 41, Sec. 1]

A party required by the rules to serve a copy of his


court-bound on the adverse party need not enclose
copies of those annexes that based on the record of

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the court such party already has in his possession. In


the event a party requests a set of the annexes
actually filed with the court, the part who filed the
paper shall comply with the request within five days
from receipt. [Efficient Use of Paper Rule, AM 11-9-4SC, Section 6]

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Contents of appellants brief


Rule 44, Sec. 13. Contents of appellants brief. The
appellants brief shall contain, in the order herein
indicated, the following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references, and
a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) An assignment of errors intended to be urged,
which errors shall be separately, distinctly and
concisely stated without repetition and numbered
consecutively;
(c) Under the heading Statement of the Case, a
clear and concise statement of the nature of the
action, a summary of the proceedings, the
appealed rulings and orders of the court, the
nature of the judgment and any other matters
necessary to an understanding of the nature of
the controversy, with page references to the
record;
(d) Under the heading Statement of Facts, a clear
and concise statement in a narrative form of facts
admitted by both parties and of those in
controversy, together with the substance of proof
relating thereto in sufficient detail to make it
clearly intelligible, with page references to the
record;
(e) A clear and concise statement of the issues of
fact or law to be submitted to the court for its
judgment;
(f) Under the heading Argument, the appellants
arguments on each assignment of error with
page references to the record. The authorities
relied upon shall be cited by the page of the
report at which the case begins and the page of
the report on which the citation is found.
(g) Under the heading Relief, a specification of the
order of judgment which the appellant seeks; and
(h) In cases not brought up by record on appeal, the
appellants brief shall contain, as an appendix, a
copy of the judgment or final order appealed
from.

Record completion
Rule 44, Sec. 5. Completion of record. Where the
record of the docketed case is incomplete, the clerk
of court of the Court of Appeals shall so inform the
court and recommend to it measures necessary to
complete the record. It shall be the duty of said court
to take appropriate action towards the completion of
the record within the shortest possible time.
Rule 44, Sec. 6. Dispensing with complete record.
Where the completion of the record could not be
accomplished within a sufficient period allotted for
said purpose due to insuperable or extremely
difficult cases, the court, on its own motion or on
motion of an of the parties, may declare that the
record and its accompanying transcripts and exhibits
so far available are sufficient to decide the issues
raised in the appeal, and shall issue an order
explaining the reasons for such declaration.
The failure of appellant to take the necessary steps
for the correction or completion of the record within
the time limited by the court in its order is a ground
for dismissal of the appeal.
Appellants brief
Rule 44, Sec.7. Appellants brief. It shall be the duty
of the appellant to file with the court, within 45 days
from receipt of the notice of the clerk that all the
evidence, oral and documentary, are attached to the
record
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file In the Court of Appeals,
one original (properly marked) and two copies with
their annexes [Efficient Use of Paper Rule, AM 11-94-SC, Section 5]

Rule 44, Sec. 15. Questions that may be raised on


appeal. Whether or not the appellant has filed a
motion for new trial in the court below, he may
include in his assignment of errors any question of
law or fact that has been raised in the court below
and which is within the issues framed by the parties.

A party required by the rules to serve a copy of his


court-bound on the adverse party need not enclose
copies of those annexes that based on the record of
the court such party already has in his possession. In
the event a party requests a set of the annexes
actually filed with the court, the part who filed the
paper shall comply with the request within five days
from receipt. [Efficient Use of Paper Rule, AM 11-9-4SC, Section 6]

Rule 124, Sec. 7. Contents of brief. The briefs in


criminal cases shall have the same contents as
provided in sections 13 and 14 of Rule 44. A certified
true copy of the decision or final order appealed from
shall be appended to the brief of the appellant.

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Appellees brief
Rule 44, Sec. 8. Appellees brief. Within 45 days
from receipt of the appellants brief, the appellee
shall file with the court copies of his legibly typewritten, mimeographed or printed brief, with proof of
service of 2 copies thereof upon the appellant.

evidence, oral or documentary, is already attached to


the record.

Note: Rules that apply, as regards the number of


copies to be filed, with the appellants brief apply
with the appellees brief.

Several or plurality of appellants, appellees and/or


counsel
Rule 44, Sec. 11. Several appellants or appellees or
several counsel for each party.Where there are
several appellants or appellees, each counsel
representing one or more but not all of them shall be
served with only one copy of the briefs. When several
counsel represent one appellant or appellee, copies
of the brief may be served upon any of them.

The failure of the appellant to file his memorandum


within the period therefore may be a ground for
dismissal of the appeal.

Contents of appellees brief


Rule 44, Sec. 14. Contents of appellees brief. The
appellees brief shall, in the order herein indicated,
the following:
(a) A subject index of the matter in the brief with a
digest of the arguments and page references, and
a table of cases alphabetically arranged,
textbooks and statutes cited with references to
the pages where they are cited;
(b) Under the heading Statement of Facts, the
appellee shall state that the accepts the
statement of facts in the appellants brief, or
under the heading Counter-Statement of Facts,
he shall point out such insufficiencies or
inaccuracies as he believes exist in the appellants
statement of facts with references to the pages of
the record in support thereof, but without
repetition of matters in the appellants statement
of facts; and
(c) Under the heading Argument, the appellee
shall set forth his arguments in the case on each
assignment of error with page references to the
record. The authorities relied on shall be cited by
the page of the report at which the case begins
and the page of the report on which the citation is
found.

Extension of time for filing briefs


Rule 44, Sec. 12. Extension of time for filing briefs.
Extension of time for the filing of briefs will not be
allowed, except for good and sufficient cause, and
only if the motion for extension is filed before the
expiration of the time sought to be extended.
The Brief
De Liano v. CA (2001): The purpose of the brief is to
present to the court in concise form the points and
questions in controversy, and by fair argument on the
facts and law of the case to assist the court in
arriving at a just and proper conclusion.
The brief should be so prepared as to minimize the
labor of the court in the examination of the record
upon which the appeal is heard and determined.
Failure to comply with required contents of
appellants brief is cause for dismissal of the petition.

Reply brief
Rule 44, Sec. 9. Appellants reply brief. Within 20
days from receipt of the appellants brief, the
appellee shall file with the court copies of his legibly
typewritten, mimeographed or printed brief, with
proof of service upon the appellant.

Dismissal of appeal
Rule 50, Sec. 1. Grounds for dismissal of appeal. An
appeal may be dismissed by the Court of Appeals, on
its own motion or on that of appellee, on the
following grounds:
(a) Failure of the record on appeal to show on its face
that the appeal was taken within the period fixed
by these Rules;
(b) Failure to file the notice of appeal of the record
on appeal within the period prescribed by these
Rules;
(c) Failure of the appellant to pay the docket and
other lawful fees as provide in section 5 of Rule
40 and Section 4 of Rule 41;
(d) Unauthorized alterations, omission or additions in
the approved record on appeal as provided in
section 4 of Rule 44;

Note: Note: Rules that apply, as regards the number


of copies to be filed, with the appellants brief apply
in this case.
Memoranda in special cases
Rule 44, Sec. 10. Time for memoranda in special
cases. In certiorari, prohibition, mandamus, quo
warranto and habeas corpus cases, the parties shall
file, in lieu of briefs, their respective memoranda
within a non-extendible period of 30 days from
receipt of the notice issued by the clerk that all the

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(e) Failure of the appellant to serve and file the


required number of copies of his brief or
memorandum within the time provided by these
Rules;
(f) Absence of specific assignment of errors in the
appellants brief, or of page references to the
record as required in section 13, paragraphs (a),
(c), (d) and (f) of Rule 44;
(g) Failure of the appellant to take the necessary
steps for the correction or completion of the
record within the time limited by the court in its
order;
(h) Failure of the appellant to appear at the
preliminary conference under Rule 48 or to
comply with orders, circulars, or directives of the
court without justifiable cause; and
(i) The fact that the order or judgment appealed
from is not appealable.

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decide such issues or refer them to CA for


determination.
Cu-unjieng v. CA (2006): Nonpayment of the
appellate court docket and other lawful fees within
the reglementary period as provided under Rule 41,
Sec. 4 is a ground for the dismissal of an appeal
under Rule 50, Sec. 1(c). The Supreme Court has
invariably sustained the Court of Appeals dismissal
on technical grounds under the afore-quoted
provision unless considerations of equity and
substantial justice present cogent reasons to hold
otherwise. True, the rules may be relaxed but only for
persuasive and weighty reasons, to relieve a litigant
of an injustice commensurate with his failure to
comply with the prescribed procedure.
Withdrawal of appeal
Rule 50, Sec. 3. Withdrawal of appeal. An appeal
may be withdrawn as of right at any time before the
filing of the appellees brief. Thereafter, the
withdrawal may be allowed in the discretion of the
court.

PNB v. Philippine Milling (1969): CA has discretion to


dismiss or not to dismiss appeal. Although said
discretion must be a sound one, to be exercised in
accordance with the tenets of justice and fair play,
having in mind the circumstances obtaining in each
case, the presumption is that it has been so
exercised.

Stay of execution
See next page.

Padasdas v. CA (1974): Failure to file appellants brief


within the reglementary period need not necessarily
cause dismissal of appeal where the same was due
to force majeure.

General rule: If judgment is rendered against the


defendant, execution shall issue immediately
upon motion.
Exception: Immediate execution of judgment
may be stayed if the following requisites
concur:
(a) an appeal has been perfected
(b) the defendant files a sufficient supersedeas
bond, approved by the MTC and executed in
favor of the plaintiff to pay the rents,
damages and costs accruing down to the
time of the judgment appealed from
(c) during the pendency of the appeal, the
defendant deposits with the appellate court
the amount of rent due from time to time
under the contract; in the absence of a
contract, he shall deposit with the RTC the
reasonable value of the use and occupation
of the premises for the preceding month or
period at the rate determined by the
judgment of the lower court on or before the
th
10 day of each succeeding month or period

Dismissal of improper appeal


Rule 50, Sec. 2. Dismissal of improper appeal to the
Court of Appeals. An appeal under Rule 41 taken
from the Regional Trial Court to the Court of Appeals
raising only questions of law shall be dismissed,
issues purely of law not being reviewable by said
court. Similarly, an appeal by notice of appeal
instead of by petition for review from the appellate
judgment of a Regional Trial Court shall be
dismissed.
An appeal erroneously taken to the Court of Appeals
shall not be transferred to the appropriate court but
shall be dismissed outright.

Atlas Consolidated v. CA (1991): Circular No. 2-90 now


prohibits the transfer of appeals erroneously taken to
the SC or CA to whichever of these tribunals has
appropriate appellate jurisdiction. But where SC
believes that there are factual issues which must be
resolved, it may, in the exercise of its sound
discretion and considering the attendant
circumstances, either itself take cognizance of and

The supersedeas bond shall be transmitted by the


MTC, with the other papers, to the clerk of the RTC
to which the action is appealed.

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(c) making a periodic deposit of the rental or the


reasonable compensation for the use and
occupation of the property during the pendency
of the appeal.
These requisites must concur.

All amounts so paid to the appellate court shall


be deposited with said court or authorized
government depositary bond, and shall be held
there until the final disposition of the appeal,
UNLESS the court:
(a) by agreement of the interested parties, or
(b) in the absence of reasonable grounds of
opposition to a motion to withdraw, or
(c) for justifiable reasons, shall decree otherwise.

Puncia v. Gerona (1996): A stay of execution may also


be warranted once the writ is issued:
(a) where the delay in the deposit is due to fraud,
accident, mistake, or excusable negligence; or,
(b) where supervening events occurring subsequent
to the judgment bring about a material change in
the situation of the parties which makes
execution inequitable
(c) where there is no compelling urgency for the
execution because it is not justified by the
prevailing circumstances

Should the defendant fail to make the payments,


the appellate court, upon motion of the plaintiff,
and upon proof of such failure, shall order the
execution of the judgment appealed from with
respect to the restoration of possession, but such
execution shall not be a bar to the appeal taking
its course until the final disposition thereof on the
merits.

Rule 39, Sec. 2. Discretionary execution.


(a) Execution of a judgment or a final order pending
appeal.On motion of the prevailing party with
notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the time
of the filing of such motion, said court may, in its
discretion, order execution of a judgment or final
order even before the expiration of the period to
appeal.

After the case is decided by the Regional Trial


Court, any money paid to the court by the
defendant for purposes of the stay of execution
shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial
Court.

After the trial court has lost jurisdiction, the


motion for execution pending appeal may be filed
in the appellate court.

In any case wherein it appears that the defendant


has been deprived of the lawful possession of land
or building pending the appeal by virtue of the
execution of the judgment of the Municipal Trial
Court, damages for such deprivation of possession
and restoration of possession may be allowed the
defendant in the judgment of the Regional Trial
Court disposing of the appeal.

Discretionary execution may only issue upon


good reasons to be stated in a special order after
due hearing.
(b) Execution of several, separate or partial judgments.
A several, separate or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending
appeal.

Habere Facias Possessionem; definition


The name of the process commonly resorted to by
the successful party in an action for ejectment, for
the purpose of being placed by the sheriff in the
actual possession of the land recovered.

Sec. 21, Revised Rules on Summary Procedure.


Appeal. The judgment or final order shall be
appealable to the appropriate RTC which shall
decide the same in accordance with Sec. 22 of BP
129. The decision of the regional trial court in civil
cases governed by this Rule, including forcible entry
and unlawful detainer, shall be immediately
executory, without prejudice to a further appeal that
may be taken therefrom. Section 10 of Rule 70 shall
be deemed repealed.

San Pedro v. CA (1994): Judgments in ejectment


cases which are favorable to the plaintiff are
immediately executory. They can be stayed by the
defendant only by:
(a) perfecting an appeal;
(b) filing a supersedeas bond; and

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memorandum required by the Rules or by the court


itself, or the expiration of the period for its filing.

Rule 43, Sec. 12. Effect of appeal.The appeal shall


not stay the award, judgment, final order or
resolution sought to be reviewed unless the Court of
Appeals shall direct otherwise upon such terms as it
may deem just.

When such hearing is held, upon its termination or


upon the filing of the last pleading or memorandum
as may be required or permitted to be filed by the
court, or the expiration of the period for its filing.

Rule 39, Sec. 4. Judgments not stayed by appeal.


Judgments in actions for injunction, receivership,
accounting and support, and such other judgments
as are not or may hereafter be declared to be
immediately executory shall be enforceable after
their rendition and shall not be stayed by an appeal
taken therefrom, unless otherwise ordered by the
trial court. On appeal therefrom, the appellate court
in its discretion may make an order suspending,
modifying, restoring or granting the injunction,
receivership, accounting, or award of support.

B. In original actions and petitions for review.


Where no comment is filed, upon the expiration of
the period to comment.
Where no hearing is held, upon the filing of the last
pleading required or permitted to be filed by the
court, or the expiration of the period for its filing.
Where a hearing on the merits of the main case is
held, upon its termination or upon the filing of the last
pleading or memorandum as may be required or
permitted to be filed by the court, or the expiration of
the period for its filing.

General rule: In ordinary appeals, execution is stayed.


Exceptions
(a) Decision in forcible entry and unlawful detainer.
Exception to exception: If appellant stays
immediate execution by filing a notice of appeal,
supersedeas bond and depositing in court a
monthly rental or compensation for the
occupation as fixed by the court which rendered
the decision.
(b) Decision of the MeTC, MTC or MCTC or the RTC
where execution pending appeal has been
granted by the court of origin or in a proper case
by the appellate court upon good reasons to be
stated in the order.
(c) Decision of the RTC rendered in the exercise of its
appellate jurisdiction on cases tried and decided
by the court of origin under Summary Procedure.
(d) Decision of a quasi-judicial agency under the
Rule 43, Sec. 12, UNLESS otherwise provided by
the Court CA;
(e) Decision in cases of injunction, receivership,
support and accounting.

Judgment
Rule 51, Sec. 2. By whom rendered. The judgment
shall be rendered by the members of the court who
participated in the deliberation on the merits of the
case before its assignment to a member for the
writing of the decision.
Rule 51, Sec. 3. Quorum and voting in the court.
The participation of all three Justices of a division
shall be necessary at the deliberation and the
unanimous vote of the three Justices shall be
required for the pronouncement of a judgment or
final resolution. If the three Justices do not reach a
unanimous vote, the clerk shall enter the votes of the
dissenting Justices in the record. Thereafter, the
Chairman of the division shall refer the case,
together with the minutes of the deliberation, to the
Presiding Justice who shall designate two Justices
chosen by raffle from among the other members of
the court to sit temporarily with them, forming a
special division of five Justices. The participation of
all the five members of the special division shall be
necessary for the deliberation required in section 2 of
this Rules and the concurrence of a majority of such
division shall be required for the pronouncement of a
judgment or final resolution.

Service Specialists v. Sheriff of Manila (1986): An


appeal from the order denying the petition for relief
does not stay the judgment from which relief is
sought. In order to stay execution, it is necessary to
obtain a writ of preliminary injunction.
When case is submitted for judgment
Rule 51, Sec. 1. When case deemed submitted for
judgment.A case shall be deemed submitted for
judgment:

Rule 51, Sec. 4. Disposition of a case.The CA, in the


exercise of its appellate jurisdiction, may affirm,
reverse, or modify the judgment or final order
appealed from, and may direct a new trial or further
proceedings to be had.

A. In ordinary appeals.
Where no hearing on the merits of the main case is
held, upon the filing of the last pleading, brief, or

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Sec.40, BP 129. Form of decision in appealed cases.


Every decision or final resolution of a court in
appealed cases shall clearly and distinctly state the
findings of fact and the conclusion of law on which it
is based, which may be contained in the decision or
final resolution itself, or adopted by reference from
those set forth in the decision, order, or resolution
appealed from.

Rule 51, Sec. 9. Promulgation and notice of


judgment.After the judgment or final resolution
and dissenting or separate opinions, if any, are
signed by the Justices taking part, they shall be
delivered for filing to the clerk who shall indicate
thereon the date of promulgation and cause true
copies thereof to be served upon the parties or their
counsel.

Rule 51, Sec. 5. Form of decision.Every decision or


final resolution of the court in appealed cases shall
clearly and distinctly state the finding of fact and the
conclusions of law on which it is based, which may be
contained in the decision or final resolution itself, or
adopted from those set forth in the decision, order,
or resolution appealed from.

Petition for review [Rule 42]


Mode of appeal in cases decided by the Regional
Trial Court in the exercise of its appellate jurisdiction
[Rule 41, Sec. 2]
Procedure:
Time for filing [Rule 42, Sec. 1]: The petition shall be
filed and served within fifteen (15) days from notice of
the decision sought to be reviewed or of the denial of
petitioners motion for new trial or reconsideration
filed in due time after judgment.

The body of the judgment must contain the reasons


or conclusions of the court to serve as a guide or
enlightenment to determine the ratio decidendi. But
what actually constitutes the resolution of the court
which is the subject of the execution is the dispositive
portion of the fallo. [Olac v. CA]

Note: Time for filing the petition may be extended


(additional 15 days) by the CA upon proper motion
and the payment of the full amount of the docket
and other lawful fees and the deposit for costs before
the expiration of the reglementary period. However,
no further extension shall be granted except for the
most compelling reason and in no case to exceed
fifteen (15) days.

Rule 51, Sec. 6. Harmless error.No error in either the


admission or the exclusion of evidence and no error
or defect in any ruling or order or in anything done or
omitted by the trial court or by any of the parties is
ground for granting a new trial or for setting aside,
modifying, or otherwise disturbing a judgment or
order, unless refusal to take such action appears to
the court inconsistent with substantial justice. The
court at every stage of the proceedings must
disregard any error or defect which does not affect
the substantial rights of the parties.

Amount of costs: Php 500 [Rule 42, Sec. 1]


Petition for Review Form and Content [Rule 42, Sec. 2]:
Petition must state:
(a) full names of the parties to the case w/o
impleading the lower courts or the judges
(b) indicate material dates showing filed on time
(c) set forth statement of the matters involved and
the issues raised, specification of errors of
fact/law/both and the reasons or arguments
relied upon for the allowance of the appeal

Rule 51, Sec. 7. Judgment where there are several


parties.In all actions or proceedings, an appealed
judgment may be affirmed as to some of the
appellants, and revered as to others, and the case
shall thereafter be proceeded with, so far as
necessary, as of separate actions had been begun
and prosecuted; and execution of the judgment of
affirmance may be had accordingly, and costs may
be adjudged in such cases, as the court shall deem
proper.

It must also be accompanied by legible duplicate


original/true copies of the judgments/orders,
certified correct by the CoC, the requisite number of
copies and of the pleadings and other material
portions of the record supporting the allegations of
the petition

Rule 51, Sec. 8. Questions that may be decided.No


error which does not affect the jurisdiction over the
subject matter or the validity of the judgment
appealed from or the proceedings therein will be
considered unless stated in the assignment of errors,
or closely related to or dependent on an assigned
error

Copies to be filed:
Note: Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file In the Court of Appeals,
one original (properly marked) and two copies with
their annexes [Efficient Use of Paper Rule, AM 11-9-4SC, Section 5]

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also order the elevation of the original record from


the RTC to the CA.

A party required by the rules to serve a copy of his


court-bound on the adverse party need not enclose
copies of those annexes that based on the record of
the court such party already has in his possession. In
the event a party requests a set of the annexes
actually filed with the court, the part who filed the
paper shall comply with the request within five days
from receipt. [Efficient Use of Paper Rule, AM 11-9-4SC, Section 6]

Effect of Perfection of Appeal [Rule 42, Sec. 8]:


(1) RTC loses jurisdiction
Note: Before the CA gives due course to the
petition, the RTC has authority to do the
following:
(a) issue orders for the protection and
preservation of the rights of the parties which
do not involve any matter litigated by the
appeal
(b) approve compromises
(c) permit appeals of indigent litigants
(d) order execution pending appeal in accordance
with Sec. 2 of Rule 39, and
(e) allow withdrawal of the appeal

A Certification under oath shall also be submitted.


The certification must state:
(a) that he has not theretofore commenced any other
action involving the same issues in the SC, CA, or
any other tribunal or agency;
(b) if there is such other action or proceeding, he
must state the status of the same; and if he
should thereafter learn that a similar action or
proceeding has been filed or is pending before
the SC, CA, or any other tribunal or agency, he
undertakes to promptly inform the aforesaid
courts and other tribunal or agency thereof within
five (5) days therefrom

(2) Appeal shall stay the judgment or final order


Exceptions:
(a) In civil cases decided under the Summary
Procedure
(b) CA, law or ROC provided otherwise
Action of the Court after petition is given due course
[Rule 42, Sec. 9]: CA may:
(a) Set the case for oral argument; or
(b) Require parties to submit memoranda within a
period of fifteen (15) days from notice

Note: Failure to comply with the requirements shall


be a ground for dismissal [Rule 42, Sec. 3]
Action of the Court [Rule 42, Sec. 4]: Court may
REQUIRE RESPONDENT TO SUBMIT COMMENT
within 10 days from notice or DISMISS the petition

When case is deemed submitted for decision: upon


filing of the last pleading/memorandum [Rule 42,
Sec. 9]

Possible Grounds for dismissal:


(a) patently without merit,
(b) prosecuted manifestly for delay, or
(c) questions raised are too unsubstantial to
require consideration

Petition for review on certiorari


Procedure in the Supreme Court (Appealed Cases)
Mode of appeal
Rule 56, Sec. 3. Mode of appeal. An appeal to the
Supreme Court may be taken only by a petition for
review on certiorari, except in criminal cases where
the penalty imposed is death, reclusion perpetua or
life imprisonment.

Form and Content of Comment [Rule 42, Sec. 5]:


Comment must be in one original (properly marked)
and two copies with their annexes (Efficient Use of
Paper Rule, Section 5), accompanied by certified true
copies of such material portions of the record;
stating:
(a) whether or not he accepts the statement of
matters involved in the petition
(b) point out such insufficiencies or inaccuracies as
he believes exist in petitioners statement of
matters involved but without repetition
(c) reasons why the petition should not be given due
course

Procedure
Rule 56, Sec. 4. Procedure. The appeal shall be
governed by and disposed of in accordance with the
applicable provisions of the Constitution, laws, Rules
45, 48, sections 1, 2 and 5 to 11 of Rules 51, 52 and
this Rule.
Grounds for dismissal of appeal
Rule 56, Sec. 5. Grounds for dismissal of appeal.
The appeal may be dismissed motu proprio or on
motion of the respondent on the following grounds:

If the CA finds that there is a prima facie that the


lower court has committed an error of fact or law
that will warrant a reversal or modification of the
appealed decision, it may accordingly give due
course to the petition. [Rule 42, Sec. 6]. The CA may

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(a) Failure to take the appeal within the


reglementary period;
(b) Lack of merit in the petition;
(c) Failure to pay the requisite docket fee and other
lawful fees or to make a deposit for costs;
(d) Failure to comply with the requirements
regarding proof of service and contents of and
the documents which should accompany the
petition;
(e) Failure to comply with any circular, directive or
order of the Supreme Court without justifiable
cause;
(f) Error in the choice or mode of appeal; and
(g) The fact that the case is not appealable to the
Supreme Court.

BAR OPERATIONS COMMISSION

penalty. The Court of Appeals shall automatically


review the judgment as provided in Section 10 of
this Rule.
(f) Except as provided in the last paragraph of
section 13, Rule 124, all other appeals to the
Supreme Court shall be by petition for review on
certiorari under Rule 45.
General rule: An appeal taken to the Supreme Court
by notice of appeal shall be dismissed.
Exception: Appeals in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.
Equally divided
Rule 56, Sec. 7. Procedure if opinion is equally
divided.Where the court en banc is equally divided
in opinion, or the necessary majority cannot be had,
the case shall again be deliberated on, and if after
such deliberation no decision is reached, the original
action commenced in the court shall be dismissed; in
appealed cases, the judgment or order appealed
from shall stand affirmed; and on all incidental
matters, the petition or motion shall be denied.

Improper appeal
Rule 56, Sec. 6. Disposition of improper appeal.
Except as provided in section 3, Rule 122 regarding
appeals in criminal cases where the penalty imposed
is death, reclusion perpetua or life imprisonment, an
appeal taken to the Supreme Court by notice of
appeal shall be dismissed.
An appeal by certiorari taken to the Supreme Court
from the Regional Trial Court submitting issues of
fact may be referred to the Court of Appeals for
decision or appropriate action. The determination of
the Supreme Court on whether or not issues of facts
are involved shall be final.

Questions of Fact v. Questions of Law


Agote v. Lorenzo (2005): A question of law does not
involve an examination of the probative value of the
evidence presented by any of the litigants.
There is a question of law in a given case when the
doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when
the doubt or difference arises as to the truth or the
falsehood of the facts alleged.

Rule 122, Sec. 3. How appeal taken.


(a) The appeal to the Regional Trial Court, or to the
Court of Appeals in cases decided by the
Regional Trial Court in the exercise of its original
jurisdiction, shall be by notice of appeal filed with
the court which rendered the judgment or final
order appealed from and by serving a copy
thereof upon the adverse party.
(b) The appeal to the Court of Appeals in cases
decided by the Regional Trial Court in the
exercise of its appellate jurisdiction shall be by
petition for review
(c) under Rule 42.
(d) The appeal in cases where the penalty imposed
by the Regional Trial Court is reclusion perpetua
or life imprisonment, or where a lesser penalty is
imposed but for offenses committed on the same
occasion or which arose out of the same
occurrence that gave rise to the more serious
offense for which the penalty of death, reclusion
perpetua, or life imprisonment is imposed, shall
be by notice of appeal to the Court of Appeals in
accordance with paragraph (a) of this Rule.
(e) No notice of appeal is necessary in cases where
the Regional Trial Court imposed the death

Alsua-Betts v. CA (1979):
General rule: CAs findings of fact are final and
conclusive and cannot be reviewed on appeal to the
SC, provided they are borne out by the record or are
based on substantial evidence.
Exception: CAs findings of fact may be reviewed by
the SC on appeal by certiorari when:
(1) Conclusion is a finding grounded entirely on
speculations, surmises or conjectures [Joaquin v.
Navarro (1953)].
(2) Inference made is manifestly mistaken, absurd or
impossible [Luna v. Linatok (1942)].
(3) There is grave abuse of discretion in the
appreciation of facts [Buyco v. People (1954)].
(4) Judgment is based on a misapprehension of facts
[De la Cruz v. Sosing (1953).
(5) The Court of Appeals findings of fact are
conflicting [Casica v. Villaseca (1957)].

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(6) The Court of Appeals, in making its findings, went


beyond the issues of the case and the same is
contrary to the admissions of both appellant and
appellee [Nakpil & Sons v. CA (1986)].
(7) The Court of Appeals manifestly overlooked
certain relevant facts not disputed by the parties
and which, if properly considered, would justify a
different conclusion [Abellana v. Dosdos (1965)].
(8) The Court of Appeals findings of fact are contrary
to those of the trial court, or are mere conclusions
without citation of specific evidence, or where the
facts set forth by the petitioner are not disputed
by the respondent, or where the findings of fact of
the Court of Appeals are premised on absence of
evidence but are contradicted by the evidence of
record [Manlapaz v. CA (1987)].

BAR OPERATIONS COMMISSION

within 30 days after notice of the judgment or final


order.
The period of appeal shall be interrupted by a timely
motion for new trial or reconsideration. No motion
for extension of time to file a motion for new trial or
reconsideration shall be allowed.
Neypes v. CA (2005) on the fresh period rule:
Definition: Period of appeal is interrupted by a timely
motion for new trial or reconsideration. Motion for
extension of time to file motion for new trial or
reconsideration is not allowed.
Applicability:
(a) Rule 40 on appeals from MTC to RTC.
(b) Rule 42 on petitions for review from RTC to CA.
(c) Rule 43 on appeals from QJA to CA.
(d) Rule 45 on appeals by certiorari to SC.

Perez-Rosario v. CA (2005): Rule 65 cannot cure the


failure to appeal thru Rule 45.

Rationale: To standardize the appeal periods


provided in the Rules of Court and to afford litigants
fair opportunity to appeal their cases, the court
deems it practical to allow a fresh period of 15 days
within which to file the notice of appeal in the
Regional Trial Court, counted from receipt of the
order dismissing a motion for new trial or
reconsideration.

ISSUES TO BE RAISED ON APPEAL

Cognizable judgments/issues
The appellate court has no jurisdiction to review a
judgment which is immediately final and executory
by express provision of law. [Republic v. BermudezLorino (2005)]
Rationale: Appeal is merely a privilege conferred by
law upon the litigants.
A party cannot change the theory on appeal. Only
issues pleaded in the lower court and properly raised
may be resolved by the appellate court. [Medina v.
CA (1992)]

PERIOD OF APPEAL

From MTC to RTC and from RTC (original) to CA


(a) By notice of appeal: 15 days from notice of the
judgment or final order
(b) By record of appeal: 30 days from notice of the
judgment or final order
(c) From MTC to RTC (appellate) to CA: 15 days from
notice of the judgment or final order but the
Court of Appeals may grant a 15 day extension.
No further extension shall be granted except for
the most compelling reasons and in no case
longer than 15 days.

However, issues which are inferred from or


necessarily connected with the issue properly raised
and pleaded may be resolved by the appellate court.
[Espina v. CA (1992)]
Notice of appeal
The notice of appeal shall indicate the parties to the
appeal, the judgment or final order or part thereof
appealed from, and state the material dates showing
the timeliness of the appeal.

From RTC (original) to CA to SC and from MTC to RTC


(appellate) to CA to SC and from CA to SC and from
QJA to CA to SC
15 days from notice of judgment or final order or
from denial of petitioners motion for reconsideration
or new trial. The SC may grant a 30 day extension for
justifiable reasons.

Record of appeal
Required only in:
(a) Special proceedings;
(b) Multiple or separate appeals where the law or the
Rules of Court so requires.

From QJA to CA
15 days from notice of the award, judgment, final
order or resolution or from date of last publication if
required by law. The CA may grant a 15 day
extension. No further extension shall be granted
except for the most compelling reasons and in no
case longer than 15 days.

Rule 40, Sec.2. When to appeal.The appeal is taken


by filing a notice of appeal with the court that
rendered the judgment or final order appealed from.
Where a record on appeal is required, the appellant
shall file a notice of appeal and a record on appeal

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Distinctions between Rule 45 and


Rule 65 Based on J. Regalados Commentary
(Asked in the 1999 and 2008 Bar Exams)
Rule 45 Appeal by Certiorari
(1) Issues Raised
Questions of Law
(2) Against
What Court
Action Directed
Review of the judgment,
award or final order on
the merits
(3) Reglementary Period
Must be filed within the
reglementary period for
appeal.
(4) Effect on the Proceedings
Below
Judgment, award or
order appealed from is
stayed by the Appeal

Rule 45 Appeal by Certiorari

(5) Parties Involved


Rule 65 Original Action
Original Parties to the
for Certiorari
action remain the same
Grave
Abuse
of
during appeal (albeit with
Discretion Amounting to
the
corresponding
Lack or Excess of
appellation of appellant
Jurisdiction
and appellee), the lower
court or quasi-judicial
Directed Against an
agency is not to be
Interlocutory Order of the
impleaded.
court prior to appeal
from the judgment, or
(6) Requirement of Motion
where there is no appeal
for Reconsideration
or any other plain speedy
For purposes of appeal,
and adequate remedy
MR is not required
Not later than sixty (60)
(7) Exercise of Jurisdiction
days from notice of the
The Appellate Court
judgment,
order
or
exercises its appellate
resolution sought to be
jurisdiction and power of
assailed.
review
No
effect
(i.e.,
proceedings
below
continue) unless a writ of
preliminary injunction or
a temporary restraining
order has been issued
Matrix of Periods

Period to Appeal

MTC to RTC

RTC to CA

MTC to RTC to
CA

QJA to CA
RTC to SC
RTC to CA to

BAR OPERATIONS COMMISSION

By notice of appeal - 15 days


from notice of the judgment or
final order
By record of appeal 30 days
from notice of the judgment or
final order
By notice of appeal - 15 days
from notice of the judgment or
final order
By record of appeal 30 days
from notice of the judgment or
final order
15 days from notice of the
judgment or final order OR
from denial of MR or MNT
15 days from notice of the
award, judgment, final order or
resolution or from date of last
publication if required by law
OR from denial of MR or MNT
15 days from notice of judgment
or final order OR from denial of

Extensions

Rule 65 Original Action


for Certiorari
The parties are the
aggrieved party against
the lower court/Quasijudicial agency and the
prevailing parties, who
thereby
respectively
become the petitioner
and the respondents.
MR is a CONDITION
PRECEDENT
subject
only
to
certain
exceptions.
Higher Court exercises
original jurisdiction under
its power of control and
supervision over the
proceedings of lower
courts.

Effect of MR or MNT

No extensions allowed

Interrupts the period to


appeal

No extensions allowed

Interrupts the period to


appeal

The CA may grant a 15 day


extension. No further extension
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The CA may grant a 15 day
extension. No further extension
shall be granted except for the
most compelling reasons and in
no case longer then 15 days.
The SC may grant a 30 day
extension for justifiable reasons.

Fresh period to appeal


from denial MR or MNT

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Fresh period to appeal


from denial MR or MNT

Fresh period to appeal


from denial MR or MNT

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SC
CA to SC

CIVIL PROCEDURE

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petitioners MR or MNT.

This fresh period rule shall also apply to:


(a) Rule 40 governing appeals from the Municipal
Trial Courts to the Regional Trial Courts;
(b) Rule 42 on petitions for review from the Regional
Trial Courts to the Court of Appeals;
(c) Rule 43 on appeals from quasi-judicial
agencies to the Court of Appeals; and
(d) Rule 45 governing appeals by certiorari to the
Supreme Court. The new rule aims to regiment or
make the appeal period uniform, to be counted
from receipt of the order denying the motion for
new trial, motion for reconsideration (whether full
or partial) or any final order or resolution. [Neypes
v. CA, (2005)]

Espina v. CA (1992): However, issues which are


inferred from or necessarily connected with the issue
properly raised and pleaded may be resolved by the
appellate court.
Appeal from MTC to RTC: the rules on perfection of
appeal from RTC to CA applies.
From the Regional Trial Court to CA:
(a) By notice of appeal: perfected as to party who
filed notice upon filing of the same in due time
The court loses jurisdiction over the case upon
perfection of appeal AND expiration of time to
appeal of the other parties.

A party litigant may now file his notice of appeal


either within fifteen days from receipt of the original
decision or within fifteen days from the receipt of the
order denying the motion for reconsideration.

(b) By record on appeal: perfected as to the party


who filed appeal and with respect to the subject
matter thereof upon approval of the record filed
in due time

Being procedural in nature, Neypes is deemed to be


applicable to actions pending and undetermined at
the time of its effectivity and is thus retroactive in
that sense and to that extent. [First Aqua Sugar v.
BPI (2007)]

The court loses jurisdiction upon approval of the


records on appeal AND expiration of the time to
appeal of the other parties
From MTC to RTC (appellate jurisdiction) to CA: upon
timely filing of a petition for review and the payment
of the corresponding docket and other lawful fees.

PERFECTION OF APPEAL

Perfection of an appeal in the manner and within the


period laid down by law is mandatory and
jurisdictional. [Balgami v. CA (2004)]

The RTC loses jurisdiction upon perfection of appeals


filed in due time AND the expiration of time to
appeal of other parties.

Rationale: Appeal is merely a statutory privilege, and


may be exercised only in the manner and in
accordance with the provisions of the law. It is
neither a natural right nor a part of due process.
Effect of failure to perfect appeal
(a) Defeats a partys right to appeal.
(b) Precludes appellate court from
jurisdiction.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE MTC

MTC to RTC

Rule 40, Sec.1. Where to appeal. An appeal from a


judgment or final order of a MTC may be taken to the
RTC exercising jurisdiction over the area to which the
former pertains. The title of the case shall remain as
it was in the court of origin, but the party appealing
the case shall be further referred to as the appellant
and the adverse party the appellee.

acquiring

Camposagrado v. Camposagrado (2005): Failure to


pay the appellate court docket fee within the
reglementary period confers only a discretionary (not
mandatory) power to dismiss the proposed appeal.
Such discretion should consider all attendant
circumstances and must be exercised with a view to
substantial justice.

The other provisions governing appeal from RTC to


CA so long as they are not inconsistent are
applicable to appeal from MTC to RTC.
MTC to RTC to CA
File a verified petition for review with the CA,
paying at the same time to the clerk of said
court the corresponding docket and other
lawful fees, depositing the amount of P500 for
costs and furnishing the RTC and the adverse
party with a copy of the petition.

Republic v. Bermudez-Lorino (2005): Appellate court


has no jurisdiction to review a judgment which is
immediately final and executory by express provision
of law.
Medina v. CA (1992): A party cannot change the
theory on appeal. Only issues pleaded in the lower
court and properly raised may be resolved by the
appellate court.
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Applicability of Rule 45
Rule 45, Sec.9. Rule applicable to both civil and
criminal cases.The mode of appeal prescribed in
this Rule shall be applicable to both civil and
criminal cases, except in criminal cases where the
penalty imposed is death, reclusion perpetua or life
imprisonment.

The petition shall be filed and served within 15


days from notice of the decision sought to be
reviewed or of the denial of petitioners MNT or
MR filed in due time after judgment.

Upon proper motion and the payment of the


full amount of the docket and other lawful
fees and the deposit for costs before the
expiration of the reglementary period, the CA
may grant an additional period of 15 days only
within which to file the petition for review. No
further extension shall be granted except for
the most compelling reason and in no case to
exceed 15 days. [Rule 42, Sec. 1]

Filing of Petition
(a) File with the SC a verified petition for review on
certiorari.
(b) Unless otherwise directed by the court, the
number of court- bound papers that a party is
required or desires to file In the Supreme Court,
one original (properly marked) and four copies,
unless the case is referred to the Court En Banc,
in which event, the parties shall file ten additional
copies. For the En Banc, the parties need to
submit only two sets of annexes, one attached to
the original and an extra copy. For the Division,
the parties need to submit also two sets of
annexes, one attached to the original and an
extra copy. All members of the Court shall share
the extra copies of annexes in the interest of
economy of paper.

(Asked in the 1999 and 2002 Bar Exam)


Petition for review from RTC to CA [Rule 42]
Applicability. Appeal of RTC decision rendered in
exercise of appellate jurisdiction [Rule 42, Sec. 1]
Certificate of Non-Forum Shopping (CNFS).
Petitioner in a petition for review in CA/SC must
submit a CNFS with the petition. However, this rule is
relaxed where there is need to conduct a review. In
those instances, petitioner may comply with the
requirement after he has filed the petitions. [Rule 42,
Sec.1]

Parties to cases before the Supreme Court are


further required, on voluntary basis for the first six
months following the effectivity of this Rule and
compulsorily afterwards unless the period is
extended, to submit, simultaneously with their
court-bound papers, soft copies of the same and
their annexes (the latter in PDF format) either by
email to the Courts e-mail address or by compact
disc (CD). This requirement is in preparation for
the eventual establishment of an e-filing
paperless system in the judiciary. (Efficient Use of
Paper Rule, Section 5)

MTC to RTC to CA to SC
Rule 41. Sec.2(c). Appeal by certiorari.In all cases
where only questions of law are raised or involved,
the appeal shall be to the SC by petition for review
on certiorari in accordance with Rule 45.
Rule 45, Sec.1. Filing of petition with Supreme
Court.A party desiring to appeal by certiorari from
a judgment or final order or resolution of the CA, the
Sandiganbayan, the RTC or other courts whenever
authorized by law, may file with the SC a verified
petition for review on certiorari. The petition may
include an application for a writ of preliminary
injunction or other provisional remedies and shall
raise only questions of law which must be distinctly
set forth. The petitioner may seek the same
provisional remedies by verified motion filed in the
same action or proceeding at any time during its
pendency.
(Asked in the 2002 Bar Exams)

(c) Petition shall raise only questions of law which


must be distinctly set forth.
Contents of Petition [Rule 45, Sec. 4]
(a) Full name of the appealing party (petitioner) and
the adverse party (respondent).
(b) Without impleading the lower court or judges as
petitioners/respondents.
(c) Material dates:
(1) When notice of the judgment or final order or
resolution subject thereof was received;
(2) When a motion for new trial or reconsideration
(if any) was filed and when notice of the denial
thereof was received.
(d) Concise statement of the matters involved, and
the reasons/arguments relied on for the
allowance of the petition;

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(e) A clearly legible duplicate original, or a certified


true copy of the judgment or final order or
resolution certified by the clerk of court of the
court a quo and the requisite number of plain
copies thereof, and such material portions of the
record as would support the petition;
(f) Certificate of non-forum shopping.

BAR OPERATIONS COMMISSION

Review is discretionary
A review is not a matter of right, but of sound judicial
discretion, and will be granted only when there are
special and important reasons therefore.
The following, while neither controlling nor fully
measuring the court's discretion, indicate the
character of reasons which will be considered:
(a) When the court a quo has decided a question of
substance, not theretofore determined by the SC,
or has decided it in a way probably not in accord
with law or with the applicable decisions of the
SC; or
(b) When the court a quo has so far departed from
the accepted and usual course of judicial
proceedings, or so far sanctioned such departure
by a lower court, as to call for an exercise of the
power of supervision.

File petition within 15 days from notice:


(a) of the judgment or final order or resolution
appealed from, or
(b) of the denial of the petitioner's motion for
new trial or reconsideration filed in due time
after notice of the judgment.

On motion duly filed and served, with full


payment of the docket and other lawful fees
and the deposit for costs before the expiration
of the reglementary period, the SC may for
justifiable reasons grant an extension of 30
days only within which to file the petition. [Rule
45, Sec. 2]

May Require Pleadings and Documents


Rule 45, Sec. 7. Pleadings and documents that may
be required; sanctions. For purposes of
determining whether the petition should be
dismissed or denied pursuant to sec.5 of this Rule, or
where the petition is given due course under Sec.8
hereof, the SC may require or allow the filing of such
pleadings, briefs, memoranda or documents as it
may deem necessary within such periods and under
such conditions as it may consider appropriate, and
impose the corresponding sanctions in case of nonfiling or unauthorized filing of such pleadings and
documents or non-compliance with the conditions
therefor.

Rule 45, Sec.3. Docket and other lawful fees; proof of


service of petition. Unless he has theretofore done
so, the petitioner shall pay the corresponding docket
and other lawful fees to the clerk of court of the
Supreme Court and deposit the amount of P500.00
for costs at the time of the filing of the petition. Proof
of service of a copy thereof on the lower court
concerned and on the adverse party shall be
submitted together with the petition.

Due Course and Elevation of Records


Rule 45, Sec. 8. Due course; elevation of records. If
the petition is given due course, the SC may require
the elevation of the complete record of the case or
specified parts thereof within 15 days from notice.

Dismissal or denial of petition


Rule 45, Sec.5. Dismissal or denial of petition. The
failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of
the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of
and the documents which should accompany the
petition shall be sufficient ground for the dismissal
thereof.

MTC to SC
(a) The remedy is a petition for certiorari under Rule
65.
(b) This is not an appeal.
APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE RTC

RTC to CA
Under Rule 41, an appeal of judgment or final order
under that completely disposes of either:
(a) The case;
(b) A particular matter in the case, when declared by
ROC to be appealable.

The SC may on its own initiative deny the petition on


the ground that the appeal is without merits, or is
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.

Not appealable under Rule 41


(a) Order denying motion
reconsideration;

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new

trial

or

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(b) Order denying petition for review or any similar


motion seeking relief from judgment;
(c) Interlocutory order;
(d) Order disallowing/dismissing appeal;
(e) Order denying motion to set aside judgment by
consent or confession or compromise on ground
of fraud or mistake or duress or any other vitiation
of consent;
(f) Order of execution;
(g) While the case is pending, judgment or final
order:
(1) For/against one or more of several parties;
(2) In separate claims, counterclaims, crossclaims, third-party complaints.
Exception: If court allows appeal.
(h) Order dismissing an action without prejudice.

Lanaria v. Planta (2007): Submission of a document


together with the motion for reconsideration
constitutes substantial compliance with compliance
with Section 2, Rule 42 or the requirement that
relevant or pertinent documents be submitted along
with the petition, and calls for the relaxation of
procedural rules

In the 8 cases not appealable under Rule 41, the


aggrieved party may file a special civil action under
Rule 65.

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CA

RTC to CA to SC
The remedy is a petition for review on certiorari under
Rule 45.
RTC to SC
(a) The remedy is a petition for certiorari under Rule
65.
(b) This is not an appeal.
CA to SC
The remedy is a petition for review on certiorari under
Rule 65.

Interlocutory order
Definition: If it does not dispose of the case but
leaves something else to be done by the trial court
on the merits of the case. [Investments, Inc. v. CA
(1987)]

APPEAL FROM JUDGMENTS OR FINAL ORDERS OF THE CTA

RA 9282: Decisions of the CTA are now appealable


to the SC by petition for review on certiorari under
Rule 45.

For purposes of appeal, an order is final if it disposes


of the entire case. An order for partial summary
judgment is an interlocutory order which cannot be
appealed from. The trial court had not yet rendered a
complete final judgment. [GSIS v. Phil. Village Hotel
(2004)]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE


COA

The remedy is a petition for certiorari under Rule 65.


[Rule 64, Section 2]
Time to file: petition shall be filed within thirty (30)
days from notice of the judgment or final order or
resolution

Multiple appeals
Civil cases which admit of multiple appeals:
(a) Judgment in an action for recovery or for partition
of property is separately appealable from the
proceedings on that part of the judgment wherein
accounting for receipts from the property is
ordered as a primary or incidental relief. When
such accounting is submitted and either
approved or rejected by the trial court, another
appeal lies therefrom.
(b) Special civil actions:
(1) Expropriation; (Rule 67)
(2) Judicial partition; (Rule 69)
(3) Judicial foreclosure of mortgage; (Rule 68)

Note: If allowed under the Rules of the Commission


concerned, the filing of a motion for new
trial/reconsideration shall interrupt the period
Copies to be filed: Unless otherwise directed by the
court, one original (properly marked) and four copies,
unless the case is referred to the Court En Banc, in
which event, the parties shall file ten additional
copies. [AM 11-9-4-SC, Section 5(a)]

Ko v. PNB (2006): The order of dismissal due to


failure to prosecute is appealable by notice of appeal
under Rule 41.

Contents:
(a) State the facts with certainty, present clearly the
issues involved, set forth the grounds and brief
arguments relied upon for review, and pray for
judgment annulling or modifying the questioned
judgment, final order or resolution. Findings of
fact of the Commission supported by substantial
evidence shall be final and non-reviewable.

Philexport v. PI (2004): But an order of dismissal


without prejudice is not appealable under Rule 41.

(b) Accompanied by a clearly legible duplicate


original or certified true copy of the judgment,

Special proceedings also admit of multiple appeals.

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final order or resolution subject thereof, together


with certified true copies of such material
portions of the record as are referred to therein
and other documents relevant and pertinent
thereto.

BAR OPERATIONS COMMISSION

other pleadings or papers as may be required or


allowed, or the expiration of the period to do so.
[Rule 64, Section 9]
REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
COMELEC

For the Division, the parties need to submit also two


sets of annexes, one attached to the original and an
extra copy. All members of the Court shall share the
extra copies of annexes in the interest of economy of
paper. Parties to cases before the Supreme Court are
further required, on voluntary basis for the first six
months following the effectivity of this Rule and
compulsorily afterwards unless the period is
extended, to submit, simultaneously with their courtbound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to
the Courts e-mail address or by compact disc (CD).
This requirement is in preparation for the eventual
establishment of an e-filing paperless system in the
judiciary.

[same with COA (Rule 64)]


REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
CSC

The remedy of an aggrieved party from a resolution


issued by the CSC is to file a petition for review
thereof under Rule 43 of the Rules of Court within
fifteen days from notice of the resolution. [DECS v.
Cuanan (2008)]
OREVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE
OMBUDSMAN

When CA has Jurisdiction


In administrative cases: Where the respondent is
absolved of the charge, and in case of conviction
where the penalty imposed is public censure or
reprimand, suspension of not more than one month,
or a fine equivalent to one month salary , the
decision shall be unappealable. In all other cases,
the decision may be appealed to the CA on a verified
petition for review under the requirements and
conditions set forth in Rule 43 of the Rules of Court,
within 15 days from receipt of the written Notice of
the Decision or Order denying the Motion for
Reconsideration. [AO 7, Rule III, Section 7]

(a) State the specific material dates showing that it


was filed within the period fixed herein, and shall
contain a sworn certification against forum
shopping as provided in the third paragraph of
section 3, Rule 46.
(b) Accompanied by proof of service of a copy thereof
on the Commission concerned and on the
adverse party, and of the timely payment of
docket and other lawful fees.
Note: The failure of petitioner to comply with any of
the foregoing requirements shall be sufficient
ground for the dismissal of the petition.

Note: An appeal shall not stop the decision from


being executory.
When the SC has Jurisdiction
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)]

Effect of Filing: The filing of a petition


for certiorari shall not stay the execution of the
judgment or final order or resolution sought to be
reviewed, unless the Supreme Court shall direct
otherwise upon such terms as it may deem just.
If the SC finds finds the petition sufficient in form
and substance, it shall order the respondents to file
their comments on the petition within ten (10) days
from notice; otherwise, it may dismiss the petition
outright. [Rule 64, Section 6]

Court has jurisdiction over such petitions questioning


resolutions or orders of the Office of the
Ombudsman in criminal cases. [Kuizon v. Desierto
(2001)]

Aside from the comment, No other pleading may be


filed by any party unless required or allowed by the
Court. [Rule 64, Section 7]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF THE


NLRC

Rule 43, Sec.2. Cases not covered.This Rule shall


not apply to judgments or final orders issued under
the Labor Code of the Philippines.

Unless the Court sets the case for oral argument, or


requires the parties to submit memoranda, the case
shall be deemed submitted for decision upon the
filing of the comments on the petition, or of such

NLRC judgments and final orders or resolutions are


now reviewable, in the first instance, by the Court of

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Appeals on certiorari under Rule 65, but those of the


Employees Compensation Commission should be
brought to the Court of Appeals through a petition
for review under this Rule. Also, appeals from the
Office of the Ombudsman in administrative
disciplinary cases are now covered by this Rule.
[Fabian v. Desierto (1998)]

BAR OPERATIONS COMMISSION

(b) The date of its last publication, if publication is


required by law for its effectivity; or
(c) The denial of the petitioners MFR duly filed
according to the governing law of the court or
agency a quo. [Villorente v. Laiya (2005)]
Under Rule 43, there is no need to implead the lower
court or agency which rendered the assailed
decision. [Basmayor v. Atencio (2005)]

REVIEW OF FINAL JUDGMENTS OR FINAL ORDERS OF


QUASI-JUDICIAL AGENCIES

Submission of the duplicate original or certified true


copy of judgment, order, resolution or ruling subject
of a petition for certiorari is essential to determine
whether or not the court, body or tribunal which
rendered the same indeed committed grave abuse of
discretion. Either a legible duplicate original or
certified true copy thereof shall be submitted. If what
is submitted is a copy, then it is required that the
same is certified by the proper officer of the court,
tribunal, agency or office involved. This is to assure
that such copy is a faithful reproduction of the
judgment, order, resolution or ruling subject of the
petition. [Coca-cola v. Cabalo (2006)]

QJA to CA
Applicability
Appeals from judgments or final orders of the CTA
and from awards, judgments, final orders or
resolutions of or authorized by any quasi-judicial
agency (QJA) in the exercise of its quasi-judicial
functions: (arranged alphabetically)
(a) Agricultural Inventions Board (AIB);
(b) Board of Investments (BOI);
(c) Bureau of Patents, Trademarks and Technology
Transfer (BPTTT);
(d) Central Board of Assessment Appeals (CBAA);
(e) Civil Aeronautics Board (CAB);
(f) Civil Service Commission (CSC);
(g) Construction Industry Arbitration Commission;
(h) Department of Agrarian Reform (DAR under RA
6657)
(i) Employees Compensation Commission (ECC);
(j) Energy Regulatory Board (ERB);
(k) Government Service Insurance System (GSIS);
(l) Insurance Commission;
(m) Land Registration Authority (LRA);
(n) National Electrification Administration (NEA);
(o) National Telecommunications Commission
(NTC);
(p) Office of the President (OP);
(q) Philippine Atomic Energy Commission (PAEC);
(r) Securities and Exchange Commission (SEC);
(s) Social Security Commission (SSC);
(t) Voluntary arbitrators authorized by law.

Recourse to a petition for certiorari under Rule 65


renders the petition dismissible for being the wrong
remedy. Nonetheless, there are exceptions to this
rule:
(a) when public welfare and the advancement of
public policy dictates;
(b) when the broader interest of justice so requires;
(c) when the writs issued are null and void; or
(d) when the questioned order amounts to an
oppressive exercise of judicial authority. [DECS v.
Cuanan (2008)]
QJA to CA to SC
Remedy is a petition for review on certiorari under
Rule 45.
QJA to SC
Remedy is a petition for certiorari under Rule 65,
which is not an appeal.

A resolution of the DOJ Secretary is not appealable


under Rule 43. Recourse should be to the President,
instead of the CA, under the established principle of
exhaustion of administrative remedies. [Orosa v. Roa
(2006)]

RELIEF FROM JUDGMENTS, ORDERS AND


OTHER PROCEEDINGS
Definition: It is a legal remedy whereby a party seeks
to set aside a judgment rendered against him by a
court whenever he is unjustly deprived of a hearing
or was prevented from taking an appeal because of
fraud, accident, mistake or excusable negligence.

Exhaustion of Administrative Remedies


If an appeal/remedy obtains or is available within the
administrative machinery, this should be resorted to
before resort can be made to the courts.

Francisco v. Puno (1981): A party who has filed a


timely motion for new trial or motion for
reconsideration can no longer file a petition for relief
from judgment after his motion has been denied.
These remedies are mutually exclusive. It is only in

Under Rule 43, Sec. 4 the petition should be filed


within 15 days from:
(a) Notice of the final order; or

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appropriate cases where a party aggrieved by the


judgment has not been able to file a motion for new
trial or motion for reconsideration that a petition for
relief can be filed.

BAR OPERATIONS COMMISSION

Under both grounds, the petition shall be filed in the


same court which rendered the judgment and in the
very same case.
Prayer in Petition for Relief from Judgment
(a) That the judgment/order/proceeding be set
aside;
(b) That the appeal be given due course.

GROUNDS FOR AVAILING OF THE REMEDY

Rule 38, Sec. 1. Petition for relief from judgment,


order, or other proceedings. When a judgment or
final order is entered, or any other proceeding is
thereafter taken against a party in any court through
fraud, accident, mistake, or excusable negligence, he
may file a petition in such court and in the same case
praying that the judgment, order or proceeding be
set aside.

Form and content of petition


(a) Must be verified;
(b) Must be accompanied by an affidavit showing the
fraud, accident, mistake or excusable negligence
relied upon;
(c) The affidavit of merit accompanying the petition
must also show the facts constituting the
petitioners good and substantial cause of action
or defense.

The relief provided for by Rule 38 is of equitable


character and is only allowed in exceptional cases,
that is where there is no other available or adequate
remedy. A petition for relief is not regarded with
favor and judgment will not be disturbed where the
party complaining has or by his exercising proper
diligence would have had an adequate remedy at
law, as where petitioner could have proceeded by
appeal to vacate or modify the default judgment.
[Manila Electric v. CA (1990)]

An affidavit of merit serves as the jurisdictional basis


for the court to entertain a petition for relief.
However, it is not a fatal defect to warrant denial of
the petition so long as the facts required to be set
out also appear in the verified petition.
When an Affidavit of Merit is Not Necessary
(a) When there is lack of jurisdiction over the
defendant;
(b) When there is lack of jurisdiction over the subject
matter;
(c) When judgment was taken by default;
(d) When judgment was entered by mistake or was
obtained by fraud; or
(e) Other similar cases.

Petition for relief under Rule 38 is an admission that


the period to appeal from the decision had already
expired. [David v. CA (1992)]
TIME TO FILE PETITION

Rule 38, Sec.3. Time for filing petition; contents and


verification. A petition provided for in either of the
preceding sections of this Rules must be verified,
filed within 60 days after the petitioner learns of the
judgment, final order, or other proceeding to be set
aside, and not more than 6 months after such
judgment or final order was entered, or such
proceeding was taken; and must be accompanied
with affidavits showing the fraud, accident, mistake,
or excusable negligence relied upon, and the facts
constituting the petitioners good and substantial
cause of action or defense, as the case may be.

Two Hearings an a Petition for Relief from Judgment


(a) Hearing to determine whether or not the
judgment should be set aside;
(b) If option a) is in the affirmative, hearing upon the
merits of the case.
Other Remedies After Finality of Judgment
(a) Action to Annul a Judgment
(b) Certiorari
(c) Collateral Attack of a Judgment that is Void on its
Face

Both periods must concur. They are also nonextendible and never interrupted.

ANNULMENT OF JUDGMENTS
ORDERS AND RESOLUTIONS

CONTENTS OF PETITION

Rule 38, Sec.2. Petition for relief from denial of


appeal.When a judgment of final order is rendered
by any court in a case, and a party thereto, by fraud,
accident, mistake, or excusable negligence, has been
prevented from taking an appeal, he may file a
petition in such court and in the same case praying
that the appeal be given due course.

OR

FINAL

GROUNDS FOR ANNULMENT [Rule 47, Section 2]

Grounds for Annulment

Extrinsic Fraud
Extrinsic fraud - any fraudulent act of the prevailing
party in the litigation which is committed outside of
the trial of the case, whereby the unsuccessful party

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has been prevented from exhibiting fully his case.


[Tolentino v. Leviste (2004)]

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timely motion for new trial had been granted


therein.

Fraud is regarded as extrinsic where it prevents a


party from having a trial or from presenting his entire
case to the court, or where it operates upon matters
pertaining not to the judgment itself but to the
manner in which it is procured. [Tolentino v. Leviste
(2004)]

COLLATERAL ATTACK OF JUDGMENTS


(Asked in the 2004
Bar Exams)
REMEDIES FROM A VOID JUDGMENT

WHAT IS A VOID JUDGMENT?

A void judgment is no judgment at all. It cannot be


the source of any right nor the creator of any
obligation. All acts performed pursuant to it and all
claims emanating from it have no legal
effect. Hence, it can never become final and any writ
of execution based on it is void. [Polystyrene
Manufacturing v. Privatization Management (2007)]

Rationale: Party is prevented from having his day in


court [Tolentino v. Leviste (2004)]
Note: Extrinsic fraud shall not be a valid ground if it
was availed of, or could have been availed of, in a
motion for new trial or petition for relief. [Rule 47,
Sec. 2]

A void judgment may be likened to a lawless thing


which can be treated as an outlaw and slain at sight,
or ignored wherever and whenever it rears its head.
[Banco Espanol-Filipino v. Palanca (1918)]

Lack of Jurisdiction
General Rule: Before a party can avail of the reliefs
provided for by Rule 47, it is a condition sine qua
non that one must have failed to move for new trial
in, or appeal from, or file a petition for relief against
said issuances or take other appropriate remedies
thereon, through no fault attributable to him. If he
failed to avail of those cited remedies without
sufficient justification, he cannot resort to the action
for annulment, for otherwise he would benefit from
his own inaction or negligence. [Lazaro v. Rural Bank
of Francisco Balagtas (2003)]

A judgment may be void for lack of due process of


law. [Spouses Benatiro v. Heirs of Cuyos (2008))
HOW DO YOU ATTACK A VOID JUDGMENT?

It may be assailed anytime, collaterally or in a direct


action or by resisting such judgment or final order in
any action or proceeding whenever it is invoked,
unless barred by laches. [Spouses Benatiro v. Heirs of
Cuyos (2008))

Exception: Stringent rules of procedures may be


relaxed to serve the demands of substantial justice
and in the Court's exercise of equity jurisdiction
[Almelor v. RTC of Las Pias (2008)]

WHAT ARE YOUR REMEDIES?

If the reglementary period for appeal has not yet


lapsed, some remedies are New Trial and
Reconsideration. Appeal, Petition for Relief, and
Other Appropriate Remedies such as Certiorari may
also be used.

PERIOD TO FILE ACTION [Rule 47, Sec. 3]

The period to file action for annulment of judgment is


dependent on the grounds:
(a) If it is based on extrinsic fraud, the action must be
filed within 4 years from its discovery
(b) If it is based on lack of jurisdiction, the action
must be filed before it is barred by laches or
estoppels

If the appropriate remedies are no longer available


without the fault of the petitioner, the equitable and
extraordinary remedy of Petition for Annulment of
Judgment may be resorted to.
When all else fails, there is jurisprudence to the
effect that a patently void judgment may be dealt
with by a Main Action for Injunction. [See Barrameda
v. Moir (1913)]

EFFECTS OF JUDGMENT OF ANNULMENT [Rule 47, Sec. 7]

Effect: The judgment of annulment shall:


(a) set aside the questioned judgment or final order
or resolution; and
(b) render the same null and void

SOME JURISPRUDENTIAL BASIS

Remedial Law Jurisprudence such as Spouses


Benatiro v. Heirs of Cuyos, (2008) and Agustin v.
Bacalan, (1985) on the matter of void judgment
particularly refer to Rule 47 as a remedy against a
void judgment. This remedy, however, should be
availed of only when the appropriate remedies are no
longer available without fault on the part of the
petitioner.

Note: The judgment is without prejudice to the


original action being refiled in the proper court. Also,
where the judgment or final order or resolution is set
aside on the ground of extrinsic fraud, the court may
on motion order the trial court to try the case as if a

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A final judgment or order is one that finally disposes


of a case, leaving nothing more to be done by the
Court in respect thereto, e.g., an adjudication on the
merits which, on the basis of the evidence presented
at the trial, declares categorically what the rights
and obligations of the parties are and which party is
in the right; or a judgment or order that dismisses an
action on the ground, for instance, of res judicata or
prescription. Once rendered, the task of the Court is
ended, as far as deciding the controversy or
determining the rights and liabilities of the litigants
is concerned. Nothing more remains to be done by
the Court except to await the parties' next move
(which among others, may consist of the filing of a
motion for new trial or reconsideration, or the taking
of an appeal) and ultimately, of course, to cause the
execution of the judgment once it becomes 'final or,
to use the established and more distinctive term,
'final and executory.

Although Section 2 of Rule 47 of the Rules of Court


provides that annulment of a final judgment or order
of an RTC may be based "only on the grounds of
extrinsic fraud and lack of jurisdiction," jurisprudence
recognizes denial of due process as additional
ground therefore (Spouses Benatiro Case).
Montinola v. Judge Gonzales (1989): a void judgment is
like an outlaw which may be slain at sight wherever or
whenever it exhibits its head. The proper remedy in
such case, after the time for appeal or review has
passed, is for the aggrieved party to bring an action
to enjoin the judgment.
Assuming the judgment to have been void as alleged
by the proponent of this motion, the proper remedy
was by an original proceeding and not by motion in
the cause" [Banco Espanol v. Palanca (1918)]. A final
judgment may be annulled on the ground of lack of
jurisdiction, fraud, or that it is contrary to law.
[Panlilio v. Garcia (1982)]

The proper remedy to question an improvident


interlocutory order is a petition for certiorari under
Rule 65, not Rule 45. A petition for review under
Rule 45 is the proper mode of redress to question
only final judgments. [Investments, Inc. v. Court of
Appeals(1987)]

Execution, Satisfaction and


Effect of Judgments

Execution is a matter of right upon the expiration of


the period to appeal and no appeal was perfected
from a judgment or order that disposes of the action
or proceeding. [Rule 39, Sec. 1]

DIFFERENCE BETWEEN FINALITY OF JUDGMENT


FOR PURPOSES OF APPEAL; FOR PURPOSES OF
EXECUTION

It can be noted that the Supreme Court made a


hairline distinction between finality of order for
appeals and for execution. It is submitted that upon
courts issuance of a judgment touching upon the
merits of a case, it is final for the purposes of an
appeal, but NOT for execution. Finality for the
purposes of execution refers to the expiration of the
period to appeal and no appeal was perfected.

The term finality of judgment for purposes of


appeal refers to interlocutory orders which:
(a) are not decisions within the constitutional
definition [Armargo v. CA (1973)]
(b) are those that determine incidental matters that
do not touch on the merits of the case or put an
end to proceedings. The following are examples
of an interlocutory order:
(1) an order denying a motion to dismiss;
(2) an order granting an extension of time to file a
pleading, or one authorizing an amendment
thereof;
(3) order granting or denying applications for
postponement or inspection of documents.
[Riano]

WHEN EXECUTION SHALL ISSUE


General rule: When the judgment or order becomes
executory, the court cannot refuse to issue a writ of
execution.
Exceptions: The issuance of a writ of execution which
issues as a matter of right can be countered in any of
the following cases (R-I-N-S-E-D):
(a) When a PETITION FOR RELIEF or an action to
enjoin judgment is filed and a preliminary
injunction is prayed for and granted (Rule 38,
Sec. 5);
(b) When the judgment turns out to be INCOMPLETE
OR IS CONDITIONAL since as a matter of law,
such judgment CANNOT BE FINAL;

The word interlocutory refers to something


intervening between the commencement and the
end of a suit which decides some point or matter but
is not a final decision of the whole controversy.
[Ramiscal, Jr. v. Sandiganbayan (2004)]

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(c) When the judgment has been NOVATED BY THE


PARTIES
(d) When
SUBSEQUENT
FACTS
AND
CIRCUMSTANCES transpire as to render such
execution unjust or impossible
(e) On EQUITABLE GROUNDS as when there has
been a change in the situation of the parties
which makes execution INEQUITABLE.
(f) When the judgment becomes DORMANT, the 5year period under Rule 39.6 having expired
without the judgment having been revived.

BAR OPERATIONS COMMISSION

and thereafter by action before it is barred by the


statute of limitations.
The maximum period within which a final and
executory judgment may be executed is 20 years
[Rule 39, Sec. 6 in relation to New Civil Code provision
on prescription of judgment]
Exceptions:
(a) Judgments for support WHICH DO NOT BECOME
DORMANT AND WHICH CAN BE EXECUTED BY
MOTION [Canonizado v. Benitez (1984)] except for
support in arrears beyond 10 years from the date
they become due;
(b) Contempt orders by reason of unauthorized
reentry on the land by the ejected defendant
[Azotes v. Blanco (1947)];
(c) Issuance of writs of possession in FORECLOSURE
CASES within the statute of limitations;
(d) Land registration proceedings (and other special
proceedings), hence the right to ask for a WRIT
OF POSSESSION THEREIN NEVER PRESCRIBES

AEXECUTION AS A MATTER OF RIGHT

See Annex D.
General rule: An ex parte motion for the issuance of
the writ of execution would suffice since the trial
court may take judicial notice of the record of the
case to determine the propriety of the issuance
thereof.
Exception: However when the losing party shows that
subsequent facts had taken place which would
render the execution unjust, a hearing on the motion
should be held. [Luzon Surety v. Beson (1976)]

DISCRETIONARY EXECUTION

See Annex E.

General rule: An appeal seasonably perfected shall


stay the execution of the judgment, unless
discretionary execution is granted by the court.

General rule: Under the Rule on Discretionary


Execution (also called execution pending appeal),
the court rendering the judgment, if it still has
jurisdiction, may exercise discretion and order
execution pending appeal (Asked in the 2002 Bar
Exam). It is the execution of a judgment or final order
before it attains finality. The court which rendered
the decision can grant an execution pending appeal
if it still retains jurisdiction over the case and is in
possession of the records at the time of the filing of
the motion; otherwise, the motion shall be acted
upon by the appellate court. To be valid, there
should be a good reason to justify the execution of
the judgment pending appeal, the same to be stated
in the order granting it.

Exceptions: However, judgments in the following


action, despite perfection of an appeal, shall be
executed, unless the court orders otherwise:
(a) injunction
(b) receivership
(c) accounting
(d) support
(e) such other judgments as shall now or may
hereafter be declared to be immediately
executory
Judgments in these actions shall be enforceable
after their rendition and shall not, be stayed by an
appeal taken therefrom, UNLESS OTHERWISE
ORDERED BY THE TRIAL COURT.

Exception: This rule, however, is inapplicable in the


case of the Court of Appeals.
(a) The
Rule
on
Discretionary
Execution
contemplates a situation where a judgment or
final order rendered in the exercise of its original
jurisdiction and the prevailing party in said
decision seeks immediate execution during the
pendency of an appeal.
(b) The CA has no authority to issue IMMEDIATE
EXECUTION PENDING APPEAL OF ITS OWN
DECISIONS THEREIN.
(c) Discretionary execution is allowed pending
appeal of judgment or final order of the trial court
upon good reasons to be stated in a special order.

General rule: A final and executory judgment or order


may be executed on motion within five (5) years from
the date of its entry. [Rule 39, Sec. 6]
After the lapse of such time, and before it is barred
by the statute of limitations, a judgment may be
enforced by action.
The revived judgment may also be enforced by
motion within five (5) years from the date of its entry

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(c) If it be for the sale of real or personal property, to


sell such property, describing it, and apply the
proceeds in conformity with the judgment, the
material parts of which shall be recited in the writ
of execution;
(d) If it be for the delivery of the possession of real or
personal property, to deliver the possession of the
same, describing it, to the party entitled thereto,
and to satisfy any costs, damages, rents, or profits
covered by the judgment out of the personal
property of the person against whom it was
rendered, and if sufficient personal property
cannot be found, then out of the real property;
and
(e) In all cases, the writ of execution shall specifically
state the amount of the interest, costs, damages,
rents, or profits due as of the date of the issuance
of the writ, aside from the principal obligation
under the judgment. For this purpose, the motion
for execution shall specify the amounts of the
foregoing reliefs sought by the movant.

Heirs of Justice J.B.L. Reyes v. CA (2000): A judgment


of the ca cannot be executed pending appeal. It is
acquired either by the arrest of the accused or by his
voluntary appearance in court.
General rule: The filing of a supersedeas bond is
sufficient to stay the enforcement of a discretionary
execution.
Exception: However, THE FILING OF SUPERSEDEAS
BOND does not entitle the judgment debtor to the
suspension of execution as a MATTER OF RIGHT.
Where the needs of the prevailing party are
URGENT, the Court can order immediate execution
despite such SUPERSEDEAS BOND. [Regalado]
HOW A JUDGMENT IS EXECUTED
EXECUTION BY MOTION OR BY INDEPENDENT ACTION

[Rule 39, Sec. 6]


When judgment/order may be executed by motion
Within 5 years from the date of its entry

EXECUTION OF JUDGMENTS FOR MONEY

2007 Bar Exam)

When judgment/order may be executed by


independent action
After the lapse of 5 years from date of its entry and
before it is barred by the statute of limitations

(asked in the

Immediate payment on demand


Procedure
The sheriff or executing officer demands from the
judgment obligor the immediate payment of the
full amount stated in the writ of execution and all
lawful fees.

Note: The revived judgment may be enforced by


motion within five (5) years from the date of its entry
and thereafter by action before it is barred by the
statute of limitations.
ISSUANCE AND CONTENTS OF A WRIT OF EXECUTION

BAR OPERATIONS COMMISSION

[Rule

39, Sec. 8]

The judgment obligor shall pay in cash, certified


bank check payable to the judgment obligee, or
ANY OTHER FORM OF PAYMENT ACCEPTABLE
TO THE LATTER (e.g., dacion en pago), the
amount of the judgment debt under proper
receipt directly to the judgment obligee or his
authorized representative if present at the time of
payment.

Writ of Execution
(a) Issued in the name of of the Republic of the
Philippines from the court which granted the
motion;
(b) state the name of the court, the case number and
title, the dispositive part of the subject judgment
or order; and
(c) require the sheriff or other proper officer to whom
it is directed to enforce the writ according to its
terms

The lawful fees shall be handed under proper


receipt to the executing sheriff who shall turn over
the said amount within the same day to the clerk
of court of the court that issued the writ.

Manner of Execution
(a) If the execution be against the property of the
judgment obligor, to satisfy the judgment, with
interest, out of the real or personal property of
such judgment obligor;
(b) If it be against real or personal property in the
hands of personal representatives, heirs, devisees,
legatees, tenants, or trustees of the judgment
obligor, to satisfy the judgment, with interest, out
of such property;

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If the judgment obligor cannot pay all or part


of the obligation in cash, certified bank check
or other mode of payment acceptable to the
judgment obligee, the officer shall levy upon:
(a) the properties of the judgment obligor of
every kind and nature whatsoever which
may be disposed, of for value, and
(b) not otherwise exempt from execution

If the judgment obligee or his authorized


representative is not present to receive
payment, the judgment obligor shall deliver
the aforesaid payment to the executing
sheriff. The latter shall turn over all the
amounts coming into his possession within
the same day to the clerk of court of the court
that issued the writ, or if the same is not
practicable, deposit said amounts to a
fiduciary account in the nearest government
depository bank of the Regional Trial Court of
the locality.

The sheriff gives the judgment obligor the


option as to which of the property or part
thereof may be levied upon, sufficient to satisfy
the judgment.

The clerk of said court shall thereafter arrange


for the remittance of the deposit to the account
of the court that issued the writ whose clerk of
court shall then deliver said payment to the
judgment obligee in satisfaction of the
judgment.

If the judgment obligor does not exercise the


option, the officer shall first levy on the
personal properties, if any, and then on the real
properties if the personal properties are
insufficient to answer for the judgment.

The excess, if any, shall be delivered to the


judgment obligor while the lawful fees shall be
retained by the clerk of court for disposition as
provided by law. In no case shall the executing
sheriff demand that any payment by check be
made payable to him.

The sheriff shall sell only a sufficient portion of


the personal or real property of the judgment
obligor which has been levied upon.

Satisfaction by levy
Nature
Levy means the act or acts by which an officer sets
apart or appropriates a part or the whole of the
property of the judgment debtor for purposes of the
prospective execution sale [Llenares v. Vandevella
(1966)].

When there is more property of the judgment


obligor than is sufficient to satisfy the judgment
and lawful fees, he must sell only so much of
the personal or real property as is sufficient to
satisfy the judgment and lawful fees.

If susceptible of appropriation, the officer removes


and takes the property for safekeeping; otherwise the
same is placed under sheriffs guards. Without valid
levy having been made, any sale of the property
thereafter is void.
Procedure

PAGE 97

Levy

Garnishment

seizure of property,
personal and/or real,
belonging
to
the
judgment debtor for
subsequent
execution
sale to satisfy judgment
Garnishment is

the process of notifying a


third
person
(the
garnishee) to retain and
attach the property he
has in his possession or
under
his
control
belonging
to
the
judgment debtor, to
make disclosure to the
court concerning the
same, and to dispose of

UP COLLEGE OF LAW

Levy

CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

The garnishee shall make a WRITTEN REPORT


to the court within five (5) days from service of
the notice of garnishment stating whether or
not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If
not, the report shall state how much funds or
credits the garnishee holds for the judgment
obligor.

Garnishment
the same as the court
shall direct to satisfy the
judgment. (Sec. 9, Rule
39)

Garnishment of debts and credits


Definition
Garnishment has been defined as a specie of
attachment for reaching credits belonging to the
judgment debtor and owing to him from a stranger
to the litigation [BPI v. Lee (2012)]

The garnished amount in cash, or certified


bank check issued in the name of the judgment
obligee, shall BE DELIVERED DIRECTLY TO
THE JUDGMENT OBLIGEE within ten (10)
working days from service of notice on said
garnishee requiring such delivery, except the
lawful fees which shall be paid directly to the
court.

Scope
The officer may levy on debts due the judgment
obligor and other credits, including bank deposits,
financial interests, royalties, commissions and other
personal property not capable of manual delivery in
the possession or control of third parties.
The process of levying shall be called garnishment if
the property involved is money, stocks, or other
incorporeal property in the HANDS OF THIRD
PERSONS. Garnishment merely sets apart such
funds but does not constitute the creditor as owner
of the garnished property.

In the event there are two or more garnishees


holding deposits or credits sufficient to satisfy
the judgment, the judgment obligor, if
available, shall have the right to indicate the
garnishee or garnishees who shall be required
to deliver the amount due, otherwise, the
choice shall be made by the judgment obligee.

Garnishment is not a violation of RA 1405 on the


secrecy of bank deposits. [Chinabank v. Ortega
(1973)]
Notes: Upon service of the writ of garnishment, the
garnishee becomes a virtual party or forced
intervenor to the case and the trial court thereby
acquires jurisdiction to bind the garnishee to comply
with its orders and processes. [BPI v. Lee (2012)]

The executing sheriff shall observe the same


procedure under IMMEDIATE PAYMENT ON
DEMAND with respect to delivery of payment to
the judgment obligee.

UPs funds, being government funds, are not subject


to garnishment. Moreover, The execution of the
monetary judgment against the UP was within the
primary jurisdiction of the COA. [UP v. Dizon (2012)]

EXECUTION OF JUDGMENTS FOR SPECIFIC ACTS

Conveyance, delivery of deeds, or other specific acts


Under this situation, there is a judgment which
directs a party to execute a conveyance of land or
personal property, or to deliver deeds or other
documents, or to perform, any other specific act IN
CONNECTION THEREWITH.

Procedure
Levy shall be made by SERVING NOTICE
UPON THE PERSON OWING SUCH DEBTS OR
HAVING IN HIS POSSESSION OR CONTROL
SUCH CREDITS TO WHICH THE JUDGMENT
OBLIGOR IS ENTITLED. The garnishment shall
cover only such amount as will satisfy the
judgment and all lawful fees.

If the party so ordered fails to comply within a


specified period, there are two possible remedies.
Either:
(a) the court may DIRECT THE ACT TO BE DONE AT
THE COST OF THE DISOBEDIENT PARTY by
some other person appointed by the court and
the act when so done shall have like effect as if
done by the party, or

PAGE 98

UP COLLEGE OF LAW

CIVIL PROCEDURE

(b) if real or personal property is situated within the


Philippines, the court in lieu of directing a
conveyance thereof may by an order divest the
title of any party and vest it in others, which shall
have the force and effect of a conveyance
executed in due form of law.

BAR OPERATIONS COMMISSION

is rendered, or upon any other person required


thereby, or by law, to obey the same, and such party
or person may be punished for contempt if he
disobeys such judgment.
Special judgments are those which can be complied
with by the judgment obligor because of his personal
qualifications or circumstances (e.g., a judgment
ordering a partner to render an accounting, a
judgment ordering a party to comply with his
recording contract otherwise, pay damages).

Sale of real or personal property


If judgment is rendered ordering the sale of real or
personal property, an order for execution shall be
issued describing such property as may be ordered
sold, selling it, and applying the proceeds in
conformity with the judgments instructions.

Note the difference with sections 9 and 10 (on


execution of money judgments and specific acts)
where contempt is not a remedy against
disobedience by a party.

Delivery or restitution of real property


The officer shall demand of the person against
whom the judgment for the delivery or restitution of
real property is rendered and all persons claiming
rights under him to peaceably vacate the property
within three (3) working days, and restore possession
thereof to the judgment obligee.

EFFECT OF LEVY ON THIRD PERSONS [Rule 39, Sec. 12]

Effect
The levy on execution shall create a lien in favor of
the judgment obligee over the right, title and interest
of the judgment obligor in such property at the time
of the levy, subject to liens and encumbrances then
existing.

Otherwise, the officer shall oust all such persons


therefrom with the assistance, if necessary, of
appropriate peace officers, and employing such
means as may be reasonably necessary to retake
possession, and place the judgment obligee in
possession of such property.

PROPERTIES EXEMPT FROM EXECUTION


General rule: Except as otherwise expressly provided
by law, the following property, and no other, shall be
exempt from execution: (FOTNUP-LBS-GMRE)
(a) The judgment obligor's family home as provided
by law, or the homestead in which he resides,
and land necessarily used in connection
therewith;
(b) Ordinary tools and implements personally used
by him in his trade, employment, or livelihood;
(c) Three horses, or three cows, or three carabaos,
or other beasts of burden, such as the judgment
obligor may select necessarily used by him in his
ordinary occupation;
(d) His necessary clothing and articles for ordinary
personal use, excluding jewelry;
(e) 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;
(f) Provisions for individual or family use sufficient
for four months;
(g) The professional libraries and equipment of
judges, lawyers, physicians, pharmacists,
dentists, engineers, surveyors, clergymen,
teachers, and other professionals, not exceeding
three hundred thousand pesos in value;
(h) One fishing boat and accessories not exceeding
the total value of one hundred thousand pesos
owned by a fisherman and by the lawful use of
which he earns his livelihood;

Any costs, damages, rents or profits awarded by the


judgment shall be satisfied in the same manner as a
judgment for money.
Removal of improvements on property subject of
execution
When the property subject of the execution contains
improvements constructed or planted by the
judgment obligor or his agent, the officer shall not
destroy, demolish or remove said improvements
except upon special order of the court, issued upon
motion of the judgment obligee after the hearing
and after the former has failed to remove the same
within a reasonable time fixed by the court.
Delivery of personal property
In judgment for the delivery of personal property, the
officer shall take possession of the same and
forthwith deliver it to the party entitled thereto and
satisfy any judgment for money as therein provided.
EXECUTION OF SPECIAL JUDGMENTS

When a judgment requires the performance of any


act other than those mentioned in the two preceding
sections (execution of judgment for money and specific
acts), a certified copy of the judgment shall be
attached to the writ of execution and shall be served
by the officer upon the party against whom the same

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UP COLLEGE OF LAW

CIVIL PROCEDURE

(i)

So much of the salaries, wages, or earnings of


the judgment obligor for his personal services
within the four months preceding the levy as are
necessary for the support of his family;
(j) Lettered gravestones;
(k) Monies, benefits, privileges, or annuities
accruing or in any manner growing out of any
life insurance;
(l) The right to receive legal support, or money or
property obtained as such support, or any
pension or gratuity from the Government;
(m) Properties specially exempted by law. (e.g.,
property mortgaged to the DBP [Section 26, CA
458]; savings of national prisoners deposited
with the POSTAL SAVINGS BANK [Act 2489];
benefits from private retirement systems of
companies and establishments with limitations
[RA 4917]; laborers wages except for debts
incurred for food, shelter, clothing and medical
attendance [ART 1708, CIVIL CODE]; benefit
payments from SSS [Section 16, RA 1161 AS
AMENDED])

BAR OPERATIONS COMMISSION

with the court and copies thereof promptly furnished


the parties. [Rule 39, Sec. 12]
Notice Requirement
Before the sale of property on execution, notice
thereof must be given as follows:
(a) In case of perishable property, by posting written
notice of the time and place of the sale in three
(3) public places, preferably in conspicuous areas
of the (CPM) municipal or city hall, post office and
public market in the municipality or city where
the sale is to take place, for such time as may be
reasonable, considering the character and
condition of the property;
(b) In case of other personal property, by posting a
similar notice in the three (3) public places abovementioned for not less than five (5) days;
(c) In case of real property, by posting for twenty (20)
days in the three (3) public places
abovementioned a similar notice particularly
describing the property and stating where the
property is to be sold, and if the assessed value of
the property exceeds fifty thousand (P50,000.00)
pesos, by publishing a copy of the notice once a
week for two (2) consecutive weeks in one
newspaper selected by raffle, whether in English,
Filipino, or any major regional language
published, edited and circulated or, in the
absence thereof, having general circulation in the
province or city;
(d) In all cases, written notice of the sale shall be
given to the judgment obligor, at least three (3)
days before the sale, except as provided in
paragraph (a) hereof where notice shall be given
the same manner as personal service of
pleadings and other papers as provided by
section 6 of Rule 13.

Exception: However, no article or species of property


mentioned in this section shall be exempt from:
(a) execution issued upon a judgment recovered for
its price, or
(b) upon a judgment of foreclosure of a mortgage
thereon.
Herrera v. Mcmicking (1909): The exemptions MUST
BE CLAIMED, otherwise they are deemed waived. It
is not the duty of the sheriff to set off the exceptions
on his own initiative.
Return of Writ of Execution
The writ of execution shall be returnable to the court
issuing it immediately after the judgment has been
satisfied in part or in full.

The notice shall specify the place, date and exact


time of the sale which should not be earlier than nine
o'clock in the morning and not later than two o'clock
in the afternoon (9am-2pm).

If the judgment cannot be satisfied in full within


thirty (30) days after his receipt of the writ, the officer
shall report to the court and state the reason
therefor.

The place of the sale MAY BE AGREED UPON BY


THE PARTIES. In the absence of such agreement, the
sale of the property or personal property not capable
of manual delivery shall be held in the office of the
clerk of court of the Regional Trial Court or the
Municipal Trial Court which issued the writ of or
which was designated by the appellate court.

Such writ shall continue in effect during the period


within which the judgment may be enforced by
motion.
The officer shall make a report to the court every
thirty (30) days on the proceedings taken thereon
until the judgment is satisfied in full, or its effectivity
expires.

In the case of personal property capable of manual


delivery, the sale shall be held in the place where the
property is located. [Rule 39, Sec. 15]

The returns or periodic reports shall set forth the


whole of the proceedings taken, and shall be filed

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BAR OPERATIONS COMMISSION

PENALTIES
(Selling without notice and defacing notice)
An officer selling without A
person
willfully
the notice prescribed by removing or defacing the
section 15 of this Rule
notice posted
pay punitive damages in if done before the sale, or
the amount of P5,000 before the satisfaction of
to any person injured the judgment if it be
thereby, in addition to satisfied before the sale,
his actual damages, shall be liable to pay
both to be recovered by P5,000 to any person
motion in the same injured by reason thereof,
action
in addition to his actual
damages,
to
be
recovered by motion in
the same action

How property sold on execution (See table on Service


of summons upon different entities)

Preventing Execution Sale


At any time before the sale of property on execution,
the judgment obligor may prevent the sale by paying
the amount required by the execution and the costs
that have been incurred therein. [Rule 39, Sec. 18]
(a) This is akin to the equitable right of redemption
under Rule 68, which is available to the judgment
obligor in judicial foreclosure of mortgage.
(b) The difference lies in the fact that under Rule 68,
a definite period is given.

The aforementioned are cumulative remedies and


may be resorted to by a third-party claimant
independently of or separately from and without
need of availing of the others. [Sy v. Discaya (1990)]

PROCEEDINGS WHERE PROPERTY IS CLAIMED


BY THIRD PERSONS
IN RELATION TO THIRD PARTY CLAIM IN ATTACHMENT AND
REPLEVIN

Remedies of a Third-Party Claimant


(a) Summary hearing before the court which
authorized the execution
(b) Terceria or third-party claim filed with the
sheriff
(c) Action for damages on the bond posted by the
judgment creditor
(d) Independent reivindicatory action

Rules regarding terceria (third-party claims) (asked in


the 2000 & 2005 bar exams)
The third person whose property was levied on
must make an affidavit of his title thereto or
right to the possession thereof stating the
grounds of such right or title. He must serve
the same upon the officer making the levy and
copy thereof upon the judgment obligee. The
officer shall not be bound to keep the property
as a general rule.

Concluding the Execution Sale


When the purchaser is the judgment obligee, and no
third-party claim has been filed, he need not pay the
amount of the bid if it does not exceed the amount of
his judgment. If it does, he shall pay only the excess.
[Rule 39, Sec. 21]
By written consent of the judgment obligor and
obligee, or their duly authorized representatives, the
officer may adjourn the sale to any date and time
agreed upon by them. Without such agreement, he
may adjourn the sale from day to day if it becomes
necessary to do so for lack of time to complete the
sale on the day fixed in the notice or the day to which
it was adjourned [Rule 39, Sec. 22]. Written consent is
essential, otherwise the adjournment will be void
[Abrozar v. IAC (1988)]

Sheriff is bound to keep the property when the


judgment obligee, on demand of the officer,
files a bond approved by the court to indemnify
the third-party claimant in a sum not less than
the value of the property levied on.

In case of disagreement as to such value of the


bond, the same shall be determined by the
court issuing the writ of execution.

Upon a sale of real property, the officer must give to


the purchaser a certificate of sale containing:
(a) A particular description of the real property sold;
(b) The price paid for each distinct lot or parcel;
(c) The whole price paid by him;
(d) A statement that the right of redemption expires
one (1) year from the date of the registration of
the certificate of sale. Such certificate must be
registered in the registry of deeds of the place
where the property is situated. [Rule 39, Sec. 25]

No claim for damages for the taking or keeping of the

property
may
be enforced
bondprovisions
unless the of the
Apart
from
Rule
39, theagainst
only the
other
action therefor is filed within one hundred twenty (120) days
Rules
of date
Court
dealing
terceria or third party
from the
of the
filing of with
the bond.
claims are Rule 57, Sec. 14 on preliminary
The officer shall
be liable
for damages
for the taking or
attachment
andnot
Rule
60, Sec.
7 on replevin.
keeping of the property, to any third-party claimant if such
bond is filed

Northern Motors v. Coquia (1975): The third party


claimant CANNOT
APPEAL NOR AVAIL OF

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CERTIORARI AS A REMEDY in the event that his


claim was denied since HE IS A NONPARTY to the
original action.

BAR OPERATIONS COMMISSION

(e) The right of redemption is transferable and may


be voluntarily sold [Gomez v. La Germinal (1918)]
but said right cannot be levied upon by the
judgment creditor. The creditor may not deprive
the debtor of any further rights to the property
[Lichauco v. Olegario (1922)]

Intervention by a third-party claimant whose


property had been levied upon by the sheriff in the
action from which the writ pursuant to which the levy
was made was issued must be made before rendition
of judgment by the trial court. He can no longer
intervene once the trial court already issues a writ of
execution. [Bautista]

(f) In effecting redemption, the mortgagor has the


duty of tendering payment (actual tender of
payment of the redemption price) before the
redemption period expires. [Banco Filipino
Savings and Mortgage Bank v. CA (2005)]
However, neither to make an offer to redeem nor
to make tender of payment of the repurchase
price is necessary when the right to redeem is
exercised through the filing of a complaint to
redeem. The filing of an action to redeem within
that period is equivalent to a formal offer to
redeem. [Vda. de Panaligan v. CA (1996)]

RULES ON REDEMPTION
(a) There is no right of redemption where the
property sold at judicial sale is personal property.
(b) Real property sold or any part thereof sold
separately, may be redeemed in the manner
hereinafter provided, by the following persons:
(1) The judgment obligor; or his successor in
interest in the whole or any part of the
property;
(2) A creditor having a lien by virtue of an
attachment, judgment or mortgage on the
property sold, or on some part thereof,
subsequent to the lien under which the
property was sold. Such redeeming creditor is
termed a redemptioner. [Rule 39, Sec. 27]

(g) Redemption price varies depending on who the


redemptioner is:
(1) If judgment obligor: Purchase price
(i) 1 % interest thereon up to the time of
redemption
(ii) Any amount of assessments or taxes which
the purchaser may have paid thereon after
purchase and interest on such last named
amount at the same rate.
(iii) If the purchaser be also a creditor having
prior lien to that of the redemptioner, other
than the judgment under which such
purchase was made, the amount of such
other lien, with interest.

(c) Redemption can be made by either:


(1) JUDGMENT OBLIGOR, within one year from
the date of registration of the certificate of
sale
(2) REDEMPTIONER, within one year from the
date of registration of the certificate of sale; or
within 60 days from the last redemption by
another redemptioner.
(3) BUT IN ALL CASES, the judgment obligor
shall have the entire period of 1 YEAR from the
date of registration of the sale to redeem the
property.
(4) IF THE JUDGMENT OBLIGOR REDEEMS, no
further redemption is allowed and he is
restored to his estate.
(5) THE PERIOD FOR REDEMPTION IS NOT
SUSPENDED by an action to annul the
foreclosure sale.

(2) If redemptioner: Amount paid on the last


redemption
(i) 2% interest thereon.
(ii) Any amount of assessments or taxes which
the last redemptioner may have paid thereon
after redemption by him with interest on
such last named amount;
(iii) Amount of any liens held by said last
redemptioner prior to his own with interest
EFFECTS OF REDEMPTION

[Rule 39, Sec. 29]


(a) If the judgment obligor redeems he must make
the same payments as are required to effect a
redemption by a redemptioner, whereupon, no
further redemption shall be allowed and he is
restored to his estate.
(b) The person to whom the redemption payment is
made must execute and deliver to him a
certificate of redemption acknowledged before a
notary public or other officer authorized to take

(d) If the certificate of sale is not registered, the


period for redemption does not run [Garcia v.
Ocampo (1959)]. But where parties agreed on the
date of redemption, the statutory period for legal
redemption was converted into one of
conventional redemption and the period binding
on them is that agreed upon. [Lazo v. Republic
Surety & Insurance Co., Inc (1970)]

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acknowledgments of conveyances of real


property.
(c) Such certificate must be filed and recorded in the
registry of deeds of the place in which the
property is situated and the registrar of deeds
must note the record thereof on the margin of the
record of the certificate of sale.
(d) The payments mentioned in this and the last
preceding sections may be made to the purchaser
or redemptioner, or for him to the officer who
made the sale.

BAR OPERATIONS COMMISSION

(3) Use the property in the same manner it was


previously used;
(4) Make Necessary repairs to buildings thereon
while he occupies the property
(5) Use it in the ordinary course of husbandry
(6) Collect rents, earnings and income derived
from the property until the expiration of
period of redemption.
[Rule 39, Sec. 33]
(a) If no redemption be made within one (1) year from
the date of the registration of the certificate of
sale, the purchaser is entitled to a conveyance
and possession of the property; or,
(b) if so redeemed whenever sixty (60) days have
elapsed and no other redemption has been
made, and notice thereof given, and the time for
redemption has expired, the last redemptioner is
entitled to the conveyance and possession;
(c) but in all cases the judgment obligor shall have
the entire period of one (1) year from the date of
the registration of the sale to redeem the
property.
(d) The deed shall be executed by the officer making
the sale or by his successor in office, and in the
latter case shall have the same validity as though
the officer making the sale had continued in
office and executed it.
(e) Upon the expiration of the right of redemption,
the purchaser or redemptioner shall be
substituted to and acquire all the rights, title,
interest and claim of the judgment obligor to the
property as of the time of the levy.
(f) The possession of the property shall be given to
the purchaser or last redemptioner by the same
officer unless a third party IS ACTUALLY
HOLDING THE PROPERTY adversely to the
judgment obligor.

[Rule 39, Sec. 30]


A redemptioner must produce to the officer, or
person from whom he seeks to redeem, and serve
with his notice to the officer
(a) a copy of the judgment or final order under which
he claims the right to redeem, certified by the
clerk of the court wherein the judgment or final
order is entered, OR,
(b) if he redeems upon a mortgage or other lien, a
memorandum of the record thereof, certified by
the registrar of deeds, OR
(c) an original or certified copy of any assignment
necessary to establish his claim; AND
(d) an affidavit executed by him or his agent,
showing the amount then actually due on the
lien.
[Rule 39, Sec. 31]
(a) Until the expiration of the time allowed for
redemption, the court may, as in other proper
cases, restrain the commission of waste on the
property by injunction, on the application of the
purchaser or the judgment obligee, with or
without notice;
(b) but it is not waste for a person in possession of
the property at the time of the sale, or entitled to
possession afterwards, during the period allowed
for redemption, to continue to use it in the same
manner in which it was previously used, or to use
it in the ordinary course of husbandry; or to make
the necessary repairs to buildings thereon while
he occupies the property.
(c) The purchaser or a redemptioner shall not be
entitled to receive the rents, earnings and income
of the property sold on execution, or the value of
the use and occupation thereof when such
property is in the possession of a tenant.
(d) All rents, earnings and income derived from the
property pending redemption shall belong to the
judgment obligor until the expiration of his period
of redemption. In all, the judgment debtor shall
exercise the following rights:
(1) Remain in possession of the property
(2) He cannot be ejected;

RECOVERY OF
JUDGMENT:

PURCHASE

PRICE

AND

REVIVAL

OF

(a) A judgment co-debtor may compel a contribution


from the others:
(1) When property liable to an execution against
several persons is sold thereon, and
(2) more than a due proportion of the judgment
is satisfied out of the proceeds of the sale of
the property of one of them, or
(3) one of them pays, without a sale, more than
his proportion,
(b) A surety may compel repayment from the
principal:
When a judgment is upon an obligation of one of
them, as security for another, and the surety pays
the amount, or any part thereof, either by sale of
his property or before sale. [Section 35, Rule 39].

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BAR OPERATIONS COMMISSION

from execution or forbid a transfer or


disposition or interference with such property
[Sec. 41]
(3) if the court finds the judgment debtor had an
ascertainable interest in real property either
as mortgagor, mortgagee or otherwise, and
his interest can be ascertained without
controversy, the court may order a sale of such
interest [Sec. 42].
(4) if the person alleged to have the property of
the judgment debtor or be indebted to him,
claims an adverse interest in the property or
denies the debt, the court may authorize the
judgment creditor to institute an action to
recover the property, forbid its transfer and
may punish disobedience for contempt [Sec.
43]

EXAMINATION OF JUDGMENT OBLIGOR WHEN


JUDGMENT IS UNSATISFIED [Rule 39, Sec. 36]
WHEN EXAMINATION MAY BE MADE

Any time after a return, stating that the judgment


remains unsatisfied, in whole or in part, is made
HOW

Court issued an order requiring the judgment obligor


to appear and be examined concerning his property
and income before such court or before a
commissioner appointed by it, at a specified time
and place; and proceedings may thereupon be had
for the application of the property and income of the
judgment obligor towards the satisfactions of the
judgment.
Note: Judgment obligor may not be required to
appear before a court or commissioner outside the
province or city in which such obligor resides or is
found.

ENTRY OF SATISFACTION

Satisfaction of a judgment shall be entered by the


clerk of court in the court docket, and in the
execution book,
(a) upon the return of a writ of execution showing the
full satisfaction of the judgment, or
(b) upon the filing of an admission to the satisfaction
of the judgment executed and acknowledged in
the same manner as a conveyance of real
property by the judgment obligee or by his
counsel
(c) UNLESS a revocation of his authority is filed, or
upon the endorsement of such admission by the
judgment obligee or his counsel, on the face of
the record of the judgment. [Rule 39, Sec. 44]

EXAMINATION OF OBLIGOR OF JUDGMENT


OBLIGOR
DOES A PARTY LITIGANT ENJOY ANY DISCOVERY RIGHTS
AFTER THE PROMULGATION OF FINAL AND EXECUTORY
JUDGMENT?

Yes. See Secs. 36-38, Rule 39 [Bautista]


REMEDIES OF JUDGMENT CREDITOR IN AID OF EXECUTION

[Secs. 36-43]
(Asked in the 2008 Bar Exam particularly steps to be
taken if writ of execution is unsatisfied)
(a) If the execution is returned unsatisfied, he may
cause the examination of the judgment debtor as
to his property and income [Sec. 36] (asked in the
2002 bar exam)
(b) He may cause examination of the debtor of the
judgment debtor as to any debt owed by him or
to any property of the judgment debtor in his
possession [Sec. 37].
(c) If after examination, the court finds the property
of the judgment debtor either in his own hands or
that of any person, the court may order the
property applied to the satisfaction of the
judgment.
(d) A party or other person may be compelled by an
order or subpoena to attend before the court or
commissioner to testify as provided in sect 36-37.
(1) if the court finds the earnings of the judgment
debtor are more than sufficient for his familys
needs, it may order payment in installments
[Sec. 40]
(2) the court may appoint a receiver for the
property of the judgment debtor not exempt

Whenever a judgment is satisfied in fact, or otherwise


than upon an execution on demand of the judgment
obligor,
(a) the judgment obligee or his counsel must execute
and acknowledge, or indorse an admission of the
satisfaction as provided in the last preceding
section,
(b) and after notice and upon motion the court may
order either the judgment obligee or his counsel
to do so, or may order the entry of satisfaction to
be made without such admission. [Rule 39, Sec.
45]
EFFECT OF JUDGMENT OR FINAL ORDERS
RES JUDICATA IN JUDGMENTS IN REM

Judgments or final order


Against a specific thing

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Conclusive as to
Title of the thing

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Judgments or final order

Conclusive as to

Probate of a will or
administration of the
estate of a deceased
person

The
will
or
administration. However,
the probate of a will or
granting of letters of
administration shall only
be prima facie evidence
of the death of the
testator or intestate;
Condition, status or
relationship
of
the
person,

IN RESPECT TO THE
PERSONAL, political, or
legal condition or status
of a particular person or
his
relationship
to
another

(c) it must be a judgment on the merits


(d) there must be, between the first and second
actions, identity of parties, subject matter and
causes of action [Perez v. CA (2005)]
RES JUDICATA V.

LAW OF THE CASE V. STARE DECISIS


[Ayala Corporation V. Rosa-Diana Realty, (2000)]
Res Judicata
Law of the
Stare Decisis
Case
The ruling in Operates only in
one case is the
particular
carried over and single case
to
another where the ruling
case between arises and is not
the
same carried
into
parties
other cases as a
precedent
The
ruling Once a point of
adhered to in law has been
the
particular established by
case need not the court, that
be followed as a point of law will,
precedent
in generally,
be
subsequent
followed by the
litigation
same court and
between other by all courts of
parties
lower rank in
subsequent
cases where the
same legal issue
is raised

RES JUDICATA IN JUDGMENTS IN PERSONAM

In other cases, the judgment or final order is, with


respect to the matter directly adjudged or as to any
other matter that could have been missed in relation
thereto, conclusive:
(a) between the parties and
(b) their successors in interest, by title subsequent to
the commencement of the action or special
proceeding, litigating for the same thing and
under the same title and in the same capacity.
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.
Bar by former judgment
(res judicata)

Conclusiveness of
judgment

There is identity of
parties, subject matter
and causes of action
The
first
judgment
constitutes an absolute
bar to all matters
directly adjudged and
those that might have
been adjudged.

Identity of parties and


subject matter.

BAR OPERATIONS COMMISSION

ENFORCEMENT AND EFFECT


JUDGMENTS OR FINAL ORDERS

OF

FOREIGN

(Asked in the 2005 Bar


Exam)
(a) In case of a judgment or final order upon a
specific thing, the judgment or final order, is
conclusive upon the title to the thing [Rule 39,
Sec. 48]
(b) In case of a judgment or final order against a
person, the judgment or final order is
presumptive evidence of a right as between the
parties and their successors in interest by a
subsequent title [Rule 39, Sec. 48]
(c) In either case, the judgment or final order may be
repelled by evidence of a want of jurisdiction,
want of notice to the party, collusion, fraud, or
clear mistake of law or fact [Rule 39, Sec. 48]
(d) Such limitation on the review of foreign judgment
is adopted in all legal systems to avoid repetitive
litigation on claims and issues, prevent
harassment of the parties and avoid undue
imposition on the courts.
(e) This policy of preclusion rests on principles of
comity, utility and convenience of nations.
EFFECT OF FOREIGN JUDGMENTS

The first judgment is


conclusive only as to
matters
directly
adjudged and actually
litigated in the first
action. Second action
can be prosecuted.

REQUISITES OF RES JUDICATA

(a) finality of the former judgment;


(b) the court which rendered it had jurisdiction over
the subject matter and the parties

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(f) As a generally accepted principle of international


law, it is part of the law of the Philippines by
virtue of the Incorporation Clause [Section 2,
Article II of the 1987 Constitution] [Regalado]

BAR OPERATIONS COMMISSION

PURPOSES

(a) To seize the property of the debtor in advance of


final judgment and to hold it for purposes of
satisfying the said judgment.
(b) 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)]

Provisional Remedies
NATURE OF PROVISIONAL REMEDIES
DEFINITION

GROUNDS FOR ISSUANCE OF WRIT OF ATTACHMENT

Writs and processes available during the pendency


of the action which may be resorted to by a litigant
for the preservation or protection of their rights and
interests therein pending rendition, and for purposes
of the ultimate effects, of a final judgment in the
case; also known as ancillary or auxiliary remedies.

57, Sec. 1] (Asked in 2001 and 2005)

[Rule

There are only specific situations where preliminary


attachment may issue:
(a) Action for recovery of a specified amount of
money or damages, EXCEPT moral and
exemplary,
(1) on a cause of action arising from law, contract,
quasi-contract, delict, or quasi-delict
(2) against a party who is about to depart from
the Philippines with intent to defraud his
creditors;

They are applied to a pending litigation, for the


purpose of securing the judgment or preserving the
status quo, and in some cases after judgment, for the
purpose of preserving or disposing of the subject
matter. [Calo v. Roldan (1946)]
Orders granting or denying provisional remedies are
merely interlocutory and cannot be the subject of an
appeal. They may however be challenged before a
superior court through a petition for certiorari under
Rule 65.

(b) Action for money or property, embezzled or


fraudulently misapplied or converted to his own
use by either:
(1) a public officer, an officer of a corporation, an
attorney, factor, broker, agent, or clerk, in the
course of his employment as such,
(2) OR by any other person in a fiduciary capacity,
or for a willful violation of duty;

JURISDICTION OVER PROVISIONAL REMEDIES


All inferior courts can grant appropriate provisional
remedies provided that the main action is within
their jurisdiction. [B.P. 129, Section 33]

(c) Action to recover the possession of property


unjustly or fraudulently taken, detained or
converted,

PRELIMINARY ATTACHMENT (Asked in the 2002


Bar Exam)

when the property, or any part thereof, has been


concealed, removed, or disposed of to prevent its
being found or taken by the applicant or an
authorized person;

DEFINITION

A provisional remedy issued upon order of the court


where an action is pending to be levied upon the
property of the defendant so the property may be
held by the sheriff as security for the satisfaction of
whatever judgment may be rendered in the case
[Davao Light v CA ](1991)

NOTE: rule makes no distinction between real


and personal property [Riano]
(d) Action against a party who has been guilty of a
fraud in contracting the debt or incurring the
obligation upon which the action is brought, OR
in the performance thereof;

A preliminary attachment may be applied for


(a) at the commencement of the action or
(b) at any time before the entry of judgment.
It may be applied for by the plaintiff OR any proper
party (including a defendant who filed a
counterclaim, cross-claim, or a third party complaint)

NOTE: the delivery of counterfeit money or


knowingly issuing a bounced check are
considered as grounds under this rule [Riano]
(e) Action against a party who has removed or
disposed of his property, or is about to do so,
AND with intent to defraud his creditors; or

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BAR OPERATIONS COMMISSION

by the court in which the action is pending,


(f) Action against a party who does not reside and is
not found in the Philippines, OR on whom
summons may be served by publication.

It must require the sheriff of the court to attach so


much of the property in the Philippines of the party
against whom it is issued, not exempt from
execution, as may be sufficient to satisfy the
applicant's demand, EXCEPT if such party makes
deposit or gives bond in an amount equal to that
fixed in the order. The amount may be
(a) sufficient to satisfy applicants demand, or
(b) the value of the property to be attached,
exclusive of costs.

Note: the rule also refers to persons on whom


summons may be served by publication and
against whose property, preliminary attachment
may be availed of such as:
(1) Residents defendants whose identity or whose
whereabouts are unknown [Rule 14, Sec. 14]
(2) Resident defendants who are temporarily out
of the country [Rule 14, Sec. 16]

Several writs may be issued at the same time to the


sheriffs of the courts of different judicial regions.

Note: A writ of preliminary attachment is too harsh a


provisional remedy to be issued based on
mere abstractions of fraud. Rather, the rules require
that for the writ to issue, there must be a recitation of
clear
and
concrete
factual
circumstances manifesting that the debtor practiced
fraud upon the creditor at the time of the execution
of their agreement in that said debtor had a
preconceived plan or intention not to pay the
creditor. [Equitable v. Special Steel (2012)]

Contents of affidavit of applicant [Rule 57, Sec. 3]


An order of attachment shall be granted only when it
appears in the affidavit that:
(a) a sufficient cause of action exists
(b) the case is one of those mentioned in Rule 57.1
(c) there is no other sufficient security for the claim
sought to be enforced by the action
(d) the amount due to the applicant or the value of
the property the possession of which he is
entitled to recover, is as much as the sum for
which the order is granted above all legal
counterclaims.

Stages in the grant of preliminary attachment


(a) The court issues the order granting the
application
(b) The writ of attachment issues pursuant to the
order granting the writ
(c) The writ is implemented

The affidavit and the bond must be filed with the


court before the order issues.

For the first two stages, jurisdiction over the person


of the defendant is NOT necessary. However, once
the implementation of the writ commences, the
court must have acquired jurisdiction over the
defendant. [Cuartero, supra]

Condition of applicants bond [Rule 57, Sec. 4]


Applicant must give a bond executed to the adverse
party in the amount fixed by the court in its order
granting the issuance of the writ conditioned that the
applicant will pay:
(a) all the costs which may be adjudged to the
adverse party and
(b) all damages which the adverse party may sustain
by reason of the attachment if the court shall
finally adjudge that the applicant was not
entitled thereto.

REQUISITES

(a) Case must be any of those where preliminary


attachment is proper
(b) Applicant must file a motion (ex parte or with
notice and hearing)
(c) Applicant must show by affidavit (under oath)
that there is no sufficient security for the claim
sought to be enforced;
(d) Applicant must post an attachment bond
executed to the adverse party (Rule 57, Sec. 3)

Note: the bond shall only be applied to all damages


sustained due to the attachment. It cannot answer
for those that do not arise by reason of the
attachment [Riano].

ISSUANCE AND CONTENTS OF ORDER OF ATTACHMENT;


AFFIDAVIT AND BOND

RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF


SUMMONS

Issuance and contents of order of attachment [Rule


57, Sec. 2]
An order of attachment may be issued EITHER
(a) ex parte or
(b) upon motion with notice and hearing

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]

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Exceptions to Contemporaneous Service of


Summons: [Rule 57, Sec. 5]
(a) Summons could not be served personally or by
substituted service despite diligent efforts, or
(b) Defendant is a resident of the Philippines
temporarily absent therefrom, or
(c) Defendant is a non-resident, or
(d) The action is in rem or quasi in rem.

BAR OPERATIONS COMMISSION

any, or with such other person or his agent if


found within the province.
Where the property has been brought under the
operation of either the Land Registration Act or
the Property Registration Decree, the notice
shall contain a reference to the number of the
certificate of title, the volume and page in the
registration book where the certificate is
registered, and the registered owner or owners
thereof.

Sheriffs Return [Rule 57, Sec. 6]


The sheriff, after enforcing the writ, shall make a
return to the court which issued the writ stating the
ff:
(a) a full statement of his proceedings under the writ
(b) a complete inventory of the property attached,
together with any counter-bond given by the
party against whom attachment is issued

(b) Personal property capable of manual delivery


by taking and safely keeping it in the sheriffs
custody, after issuing the corresponding receipt
therefor;
(c) Stocks or shares, or an interest in stocks or shares,
of any corporation or company

The sheriff shall serve copies of the return to the


applicant.

by leaving with the president or managing agent


thereof,
(1) a copy of the writ, and
(2) a notice stating that the stock or interest of
the party against whom the attachment is
issued is attached in pursuance of such writ;

MANNER OF ATTACHING REAL AND PERSONAL PROPERTY;


WHEN PROPERTY ATTACHED IS CLAIMED BY THIRD PERSON

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
(a) Party against whom writ is issued makes a
deposit with the court from which the writ is
issued, or
(b) He gives a counter-bond executed to the
applicant

(d) Debts and credits, including bank deposits, financial


interest, royalties, commissions, and other personal
property not capable of manual delivery
by leaving with the person owing such debts, or
having in his possession or under his control, such
credits or other personal property, or with his
agent,
(1) a copy of the writ, and
(2) A notice that the debts owing by him to the
party against whom attachment is issued, and
the credits and other personal property in his
possession, or under his control, belonging to
said party, are attached in pursuance of such
writ;

The levy on attachment shall be preceded or


contemporaneously accompanied by service on the
defendant within the Philippines of:
(a) summons
(b) copy of complaint
(c) application for attachment
(d) affidavit and bond of applicant
(e) order and writ of attachment.

(e) Interest of the party whom attachment is issued in


property belonging to the estate of the decedent
(1) by serving the executor or administrator or
other personal representative of the decedent
with a copy of the writ and notice that said
interest is attached and
(2) By filing a copy of the writ and notice in the
office of the clerk of the court in which said
estate is being settled and served upon the
heir, legatee or devisee concerned.

Manner of attachment of real and personal property


[Rule 57, Sec. 7]:
(a) Real property, or growing crops thereon, or any
interest therein
(1) filing with the registry of deeds:
(i) a copy of the order, together with a
description of the property attached,
(ii) notice that it is attached, or that such real
property and any interest therein held by or
standing in the name of such other person
are attached,
(2) leaving a copy of such order, description, and
notice with the occupant of the property, if

Note:
Property in custodia legis may be attached by:

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(a) filing a copy of the writ of attachment with the


proper court or quasi-judicial agency
(b) Serving a notice of attachment upon the
custodian of the property [Rule 57, Sec. 7]

BAR OPERATIONS COMMISSION

Perla Compania v. Ramolete, 1991: Service of


summons upon the garnishee is not necessary. All
that is necessary is the service upon him of the writ of
garnishment, as a consequence of which he becomes
a virtual party or a forced intervenor in the case.

A previously attached property may also be


subsequently attached. But the first attachment
shall have priority over subsequent attachments.
[Riano]

Attachment of interest in property belonging to the


estate of a decedent [Rule 57, Sec. 9]
The attachment of the interest of an heir, legatee, or
devisee in the property belonging to the estate of a
decedent shall not impair the power of the executor,
administrator, or other personal representative of the
decedent over such property for the purpose of
administration.

Proceedings Where Attached Property Claimed By


Third Person
A third person who has a claim to the property
attached may avail of the following remedies:
(a) By terceria making an affidavit of his title or
right to possession, stating the grounds of such
right or title. The affidavit must be served upon
the sheriff and the attaching procedure [Rule 57,
Sec. 14]

When any petition for distribution is filed, such


personal representative shall report the attachment
to the court, and in the order made upon such
petition, distribution may be awarded to such heir,
legatee, or devisee, but the property attached shall
be ordered delivered to the sheriff making the levy,
subject to the claim of such heir, legatee, or devisee,
or any person claiming under him.

Note: the same procedure under Rule 39, Sec. 16 is


followed
(b) Motion for summary hearing on his claim
(c) File a separate action to nullify the levy with
damages due to the unlawful levy and seizure.

Sale of attached property


Whenever it shall be made to appear to the court in
which the action is pending, upon hearing with
notice to both parties, that
(a) the party attached is perishable, or that
(b) the interests of all the parties to the action will be
will be subserved by the sale thereof,
the court may order such property to be sold at
public auction in such manner as it may direct, and
the proceeds of such sale to be deposited in court to
abide the judgment in the action. [Rule 57, Sec. 11]

The remedies stated are CUMULATIVE and any one


of them may be resorted to without availing of the
other remedies [Ching v. CA (2004)]
Effects of attachment
Attachment of debts, credits and all other similar
personal property [Rule 57, Sec. 8]
All persons
(a) having in their possession or under their control
any credits or other similar personal property
belonging to the adverse party, or
(b) owing any debts to him, at the time of service
upon them of the copy of the writ of attachment
and notice shall be liable to the applicant for the
amount of such credits, debts or other similar
personal property, until the attachment is
discharged, or any judgment recovered by him is
satisfied, unless such property is delivered or
transferred, or such debts are paid, to the clerk,
sheriff, or other proper officer of the court issuing
the attachment.

NOTE: This is an exception to the general rule that


the issuance of a writ of attachment is only a
provisional remedy, thus no sale of the property
should be made during the pendency of the action.
[Riano]
DISCHARGE OF ATTACHMENT AND THE COUNTER-BOND

Discharge of attachment
After a writ of attachment has been enforced, the
party whose property has been attached, or the
person appearing on his behalf, may move for the
discharge of the attachment wholly or in part on the
security given.

Garnishment. A species of attachment for reaching


the property or credits pertaining or payable to a
judgment debtor (asked in the 1999 Bar Exams in
comparison with Attachment). It is a warning to a
person who has in possession property or credits of
the judgment debtor not to pay the money nor
deliver the property to latter but to appear and
answer the plaintiffs suit.

Grounds for discharge


(a) Debtor has posted a counter-bond or has made
the requisite cash deposit [Rule 57, Sec. 12];
(b) Attachment was improperly or irregularly issued
[Rule 57, Sec. 13] as where there is no ground for

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attachment, or affidavit and/or bond filed


therefore are defective or insufficient;
(c) Attachment is excessive but the discharge shall
be limited to the excess [Rule 57, Sec. 13];
(d) Property attached is exempt from execution [Rule
57, Sec. 2 and Rule 57, Sec. 5];
(e) Judgment is rendered against the attaching
creditor [Rule 57, Sec. 19].

BAR OPERATIONS COMMISSION

or sureties after notice and summary hearing in


the same action. [Rule 57, Sec. 17]
(b) Where the party against whom attachment had
been issued has deposited money instead of
giving counter-bond, it shall be applied under the
direction of the court to the satisfaction of any
judgment rendered in favor of the attaching
party, and after satisfying the judgment the
balance shall be refunded to the depositor or his
assignee.

SATISFACTION OF JUDGMENT OUT OF PROPERTY ATTACHED

The sheriff may cause judgment to be satisfied out of


the property attached if it be sufficient for that
purpose in the following manner:
(1) By paying to the judgment obligee the proceeds
off all sales of perishable or other property sold in
pursuance of the order of the court, or so much as
shall be necessary to satisfy the judgment;
(2) If any balance remains due, by selling so much of
the property, real or personal, as may be
necessary to satisfy the balance, if enough for
that purpose remain in the sheriffs hands, or in
those the clerk of the court;
(3) By collecting from all persons having in their
possession credits belonging to the judgment
obligor, or owing debts to the latter at the time of
the attachment of such credits or debts, the
amount of such credits or debts as determined by
the court in the action, and stated in the
judgment, and paying the proceeds of such
collection over to the judgment obligee. [Rule 57,
Sec. 15]

(c) If the judgment is in favor of the party against


whom attachment was issued, the whole sum
deposited must be refunded to him or his
assignee. [Rule 57, Sec. 18]
(d) If judgment be rendered against the attaching
party, all the proceeds of sales and money
collected or received by the sheriff, under the
order of attachment, and all property attached
remaining in any such officer's hands, shall be
delivered to the party against whom attachment
was issued, and the order of attachment
discharged. [Rule 57, Sec. 19]
Improper, Irregular or Excessive Attachment (Asked in
the 2008 bar exam)
An application for damages must be filed before the
trial, or before appeal is perfected, or before the
judgment becomes executory.

Balance due collected upon an execution; excess


delivered to the judgment obligor
(a) If after realizing upon all the property attached,
including the proceeds of any debts or credits
collected, and applying the proceeds to the
satisfaction of the judgment less the expenses of
proceedings upon the judgment, any balance
shall remain due, the sheriff must proceed to
collect such balance as upon ordinary execution.
(b) Whenever the judgment shall have been paid, the
sheriff, upon reasonable demand, must return to
the judgment obligor the attached property
remaining in his hands, and any proceeds of the
sale of the property attached not applied to the
judgment. [Rule 57, Sec. 16]

Such damages may be awarded only after hearing


and shall be included in the judgment on the main
case. [Rule 57, Sec. 20]
Procedure for claiming damages is EXCLUSIVE.
Such claims for damages cannot be the subject of an
independent action.
Exceptions:
(a) Where the principal case was dismissed for lack
of jurisdiction by the trial court without giving
opportunity to the party whose property was
attached to apply for and prove his claim; and
(b) Where the damages by reason of the attachment
was sustained by a third person who was not a
party to the action wherein such writ was issued.
[Santos v. CA (1954)]

Recovery Upon the Counter-Bond; Disposition of


Deposit/ Attached Property After Judgment
(a) When the judgment has become executory, the
surety or sureties on any counter-bond given to
secure the payment of the judgment shall
become charged on such counter-bond and
bound to pay the judgment obligee upon
demand the amount due under the judgment,
which amount may be recovered from such surety

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PRELIMINARY INJUNCTION

Status Quo Order vs. Injunction (Asked in the 2006


bar exams)
A status quo order is in the nature of a cease and
desist order. It is resorted to when the projected
proceedings in the case made the conservation of
the status quo desirable or essential, but the affected
party neither sought such relief nor did the
allegations in his pleading sufficiently make out a
case for a temporary restraining order.

DEFINITIONS
AND
DIFFERENCES:
DRELIMINARY
INJUNCTION AND TEMPORARY RESTRAINING ORDER;
STATUS QUO ANTE ORDER

A preliminary injunction is an order granted at any


stage of an action or proceeding prior to the
judgment or final order, requiring a party or a court,
agency or a person to either
(a) refrain from a particular act or acts or
(b) require the performance of a particular act or
acts, in which case it shall be known as a
preliminary mandatory injunction

It does NOT direct the doing or undoing of acts but is


an order to maintain the last, actual, peaceable and
uncontested state of things which preceded the
controversy.

A suit for injunction is an action in personam. It is an


ancillary or preventive remedy that is meant to be
temporary and subject to the final disposition of the
principal action [Riano]

Status Quo Ante Order


Directs the maintenance of the condition prevailing
before the promulgation of the assailed decision.
It has the nature of a TRO. [Dojillo v. COMELEC,
2006]

Purpose
To prevent future injury and maintain the status quo
(i.e. the last actual, peaceable, uncontested status
which preceded the pending controversy) for [Knecht
v. CA, (1993)]

REQUISITES

Requirements for Preliminary Injunction [Rule 58,


Sec. 4]
(a) There must be a verified application
(b) The application must show facts entitling the
applicant to the relief demanded.

Note: the injunction should not establish new


relations between the parties but merely re-establish
the pre-existing relationship between them.

It must establish he has a right and the act


against which the injunction is directed is violative
of such right [PNB v. Timbol (2005)]

TRO vs. Injunction


TRO
May be granted ex parte
if great and irreparable
injury
would
result
otherwise

BAR OPERATIONS COMMISSION

Injunction
Cannot
without
hearing

(c) A bond must be filed, unless exempted, in the


court where the action/proceeding is pending, in
an amount to be fixed by the court (asked in the
2006 Bar exam)
(d) Prior notice and hearing for the party/person
sought to be enjoined.

be
granted
notice
and

(a) A TRO is issued in order to preserve the status


quo until the hearing of the application for
preliminary injunction. [Bacolod City Water v.
Labayen (2004)]

Exceptions:
(a) Great or irreparable injury would result to the
applicant before the matter can be heard on
notice.
(1) The court may issue a TRO effective for 20
days from service on the party sought to be
enjoined.
(2) Injury is irreparable if it is of such constant
and frequent recurrence that no fair or
reasonable redress can be had therefore in
court of law or where there is no standard by
which their amount can be measured with
reasonable accuracy.
(b) Matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury
(1) Judge may issue ex parte a TRO effective for
72 hours from issuance.

(b) Same requirements for application as preliminary


injunction.
(c) An application for a TRO shall be acted upon only
after all parties are heard in a summary hearing,
which shall be conducted within 24 hours after
the sheriff's return of service and/or the records
are received by the branch selected by raffle.
[Rule 58, Sec.4]

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(2) Within 72 hours, judge shall conduct a


summary hearing to determine whether the
TRO shall be extended until the application
for preliminary injunction can be heard.
(3) Maximum period of effectivity of TRO = 20
days (including 72 hrs)

BAR OPERATIONS COMMISSION

(i) Transfer of possession of property to party with


disputed legal title via preliminary injunction

If the application for preliminary injunction is denied


or not resolved within said period, the TRO is
deemed automatically vacated.

Exceptions:
(a) Forcible entry and unlawful detainer cases in
which the court may issue preliminary mandatory
injunction [Rule 70, Sec. 15]
(b) Property covered by Torrens Title when there is a
clear finding of ownership and possession of the
land. [GSIS v. Florendo(1989)]

KINDS OF INJUNCTION

Other instances where writ is not available:

Preliminary Preventive Injunction


prohibits the performance of a particular act or acts

(a) Sec. 78, RA 9136: the implementation of the


provisions of the Electric Power Industry Reform
Act of 2001 shall not be restrained or enjoined
except by an order issued by the Supreme Court.

When preventive injunction does not lie


(a) To restrain collection of taxes [Valley Trading v.
CA](1989), except where there are special
circumstances that bear the existence of
irreparable injury. [Churchill & Tait v. Rafferty
(1915)]
(b) To restrain the sale of conjugal properties where
the claim can be annotated on the title as a lien,
such as the husbands obligation to give support.
[Saavedra v. Estrada (1931)]
(c) To restrain a mayor proclaimed as duly elected
from assuming his office. [Cereno v. Dictado
(1988)]
(d) To restrain registered owners of the property from
selling, disposing and encumbering their property
just because the respondents had executed
Deeds of Assignment in favor of petitioner. [Tayag
v. Lacson (2004)]
(e) Against consummated acts. [PNB v. Adi (1982);
Rivera v. Florendo (1986); Ramos, Sr. v. CA (1989)]
Exception: If the act is of continuing nature and in
derogation of plaintiffs right at the outset.
(f) Against disposing of the case on the merits
[Ortigas and Company Limited Partnership v. CA
(1988)]
(g) To stop the execution of judgment where the
judgment was already executed. [Meneses v.
Dinglasan (1948)]

(b) Sec. 1, PD 605: no court of the Philippines shall


have jurisdiction to issue any restraining order,
preliminary injunction or preliminary mandatory
injunction in any case involving or growing out of
the issuance, approval or disapproval, revocation
or suspension of, or any action whatsoever by the
proper administrative official or body on
concessions, licenses, permits, patents, or public
grants of any kind in connection with the
disposition, exploitation, utilization, exploration,
and/or development of the natural resources of
the Philippines.
(c) Sec. 2, PD 385: no restraining order, temporary or
permanent injunction shall be issued by the court
against any government financial institution in
any action taken by such institution in compliance
with the mandatory foreclosure whether such
restraining order, temporary or permanent
injunction is sought by the borrower(s) or any
third party or parties, except after due hearing in
which it is established by the borrower and
admitted by the government financial institution
concerned that twenty percent (20%) of the
outstanding arrearages has been paid after the
filing of foreclosure proceedings.

Exception: But where the lower court enforced its


judgment before a party against whom the
execution was enforced could elevate her appeal
in an injunction suit, which was instituted to
prevent said execution, an independent petition
for injunction in the Court of Appeals is justified.
[Manila Surety and Fidelity v. Teodoro (1967)]

Preliminary Mandatory Injunction


Requires the performance of a particular act or acts
Requisites of mandatory injunction
(a) Invasion of the right is material and substantial
(b) Right of the complainant is clear and
unmistakable
(c) Urgent and paramount necessity for the writ to
prevent serious damages [Bautista v. Barcelona
(1957)]
(d) The effect would not be to create a new relation
between the parties [Alvaro v. Zapata, (1982)]

(h) The CFI has no power to issue a writ of injunction


against the Register of Deeds if its effect is to
render nugatory a writ of execution issued by the
National Labor Relations Commission. [Ambrosio
v. Salvador (1978)]

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Rule 58 Provides for both a Main Action for Injunction


and an Ancillary Writ of Preliminary Injunction (Asked
in the 2006 Bar Exam)

Mandatory injunction does not lie in the following


instances:
(a) to compel cohabitation [Arroyo v. Vasquez (1921)]
(b) cancellation of attachment [Levy Hermanos v.
Lacson (1940)]
(c) release imported goods pending hearing before
the Commissioner of Customs. [Commissioner of
Customs v. Cloribel (1967)]
(d) to take property out of the possession or control
of one party and place it into that of another
whose title has not clearly been established [Pio
v. Marcos (1974)]
Injunction

Prohibition

Generally
directed
against a party in the
action

Directed
against
a
court/tribunal/person
exercising
judicial
powers
may be on the ground
that the court against
whom the writ is sought
acted without/in excess
of jurisdiction
Always a main action

Does not involve the


courts jurisdiction

May be the main action


itself,
or
just
a
provisional remedy in the
main action

BAR OPERATIONS COMMISSION

Injunction
Main action

seeks
a
embodying
injunction

judgment
a
final

Based on all evidence


gathered by court to
determine main action

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
based solely on initial
and incomplete evidence

As a matter of course, in an action for injunction, the


auxiliary remedy of preliminary injunction, whether
prohibitory or mandatory, may issue.
The evidence needed to establish the requisites for a
preliminary injunction need not be conclusive or
complete. It is generally based on initial, incomplete
evidence that gives the court an idea of the
justification for the preliminary injunction pending
the decision of the case on the merits. .
Note: It does not necessarily proceed that when a
writ of preliminary injunction is issued, a final
injunction will follow [Urbanes v. CA (2001)]

WHEN WRIT MAY BE ISSUED

GROUNDS FOR OBJECTION TO, OR FOR THE DISSOLUTION


OF INJUNCTION OR RESTRAINING ORDER

GROUNDS FOR ISSUANCE OF PRELIMINARY INJUNCTION

[Rule 58, Sec. 3] (Asked in the 2006 bar exam)


(a) Applicant is entitled to the relief demanded, and
the relief consists in
(1) restraining the commission or continuance of
the acts or acts complained of, or
(2) in requiring performance of an act or acts;
(b) Commission, continuance or non-performance of
the acts complained of during the litigation
would probably work injustice to the applicant; or
(c) A party, court, agency or a person is doing,
threatening, or is attempting to do, or is
procuring or suffering to be done, some act or
acts probably in violation of the rights of the
applicant respecting the subject of the action or
proceeding, and tending to render the judgment
ineffectual.

Grounds for Objection to/Motion for Dissolution of


Injunction/Restraining Order [Rule 58, Sec. 6]
(a) Insufficiency of application
(b) other grounds (e.g. applicants bond is
insufficient/defective), upon affidavits of the party
or person enjoined
(c) if it appears after hearing that although the
applicant is entitled to the injunction or
restraining order, the issuance or continuance
thereof would cause irreparable damage to the
party/person enjoined, while the applicant can be
fully compensated for such damages as he may
suffer, provided the former files a bond
If it appears that the extent of the preliminary
injunction or restraining order granted is too great, it
may be modified.

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Global Injunction of a Foreign Court (Asked in the


2007 Bar Exam)
A global injunction issued by a foreign court to
prevent dissipation of funds against the defendant
who has assets in the Philippines may be enforced in
our jurisdiction, subject to our procedural laws
(Suggested Answers to the 2007 Bar Exam, UP Law
Center)

(a) Acquisition, clearance and development of the


right-of-way and/or site or location of any
national government project;
(b) Bidding or awarding of contract/ project of the
national government as defined under Section 2
hereof;
(c) Commencement
prosecution,
execution,
implementation, operation of any such contract
or project;
(d) Termination or rescission of any such
contract/project; and
(e) The undertaking or authorization of any other
lawful
activity
necessary
for
such
contract/project.

As a general rule, no sovereign is bound to give


effect within its dominion to a judgment or order of a
tribunal of another country.
However, under the rules of comity, utility and
convenience, nations have established a usage
among civilized states by which final judgments of
foreign courts of competent jurisdiction are
reciprocally respected and rendered efficacious
under certain conditions that may vary in different
countries. [St. Aviation Services v. Grand International
Airways (2006)]

This prohibition shall apply in all cases, disputes or


controversies instituted by a private party, including
but not limited to cases filed by bidders or those
claiming to have rights through such bidders
involving such contract/project.
This prohibition shall NOT APPLY when the matter is
of extreme urgency involving a constitutional issue,
such that unless a temporary restraining order is
issued, grave injustice and irreparable injury will
arise. The applicant shall file a bond, in an amount to
be fixed by the court, which bond shall accrue in
favor of the government if the court should finally
decide that the applicant was not entitled to the
relief sought.

Note: In Pangalangan and Coquias book on Conflict


of Laws (2000), citing Cheshire, it was stated that an
interlocutory or provisional judgment of a foreign
court, creates no obligation on the forum court to
enforce it.
DURATION OF A TEMPORARY RESTRAINING ORDER

General rule: TRO is effective only for a period of 20


days from service on the party or person sought to be
enjoined

Any TRO, preliminary injunction, or preliminary


mandatory injunction issued in violation of Sec. 3 is
void and of no force and effect. [Sec 4]

Exceptions: If the matter is of extreme urgency and


the applicant will suffer grave injustice and
irreparable injury: effective for only 72 hours from
issuance [Rule 58, Sec.5]
Issued
by:
RTC
CA
SC

BAR OPERATIONS COMMISSION

RULE ON PRIOR OR CONTEMPORANEOUS SERVICE OF


SUMMONS IN RELATION TO ATTACHMENT

When an application for a writ of preliminary


injunction or a temporary restraining order is
included in a complaint or any initiatory pleading,
the case, if filed in a multiple-sala court, shall be
raffled only after notice to and in the presence of the
adverse party or the person to be enjoined. In any
event, such notice shall be preceded, or
contemporaneously accompanied, by service of
summons, together with a copy of the complaint or
initiatory pleading and the applicant's affidavit and
bond, upon the adverse party in the Philippines.

Effectivity:
20 days, non-extendible (including the
original 72 hours)
May be effective for 60 days from service
on the party or person sought to be
enjoined.
May be effective until further orders

IN RELATION TO RA 8975, BAN ON ISSUANCE OF TRO OR


WRIT OF INJUNCTION IN CASES INVOLVING GOVERNMENT
INFRASTRUCTURE PROJECTS

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

Sec. 3, RA 8975: No court, except the Supreme Court,


shall issue any TRO, preliminary injunction or
preliminary mandatory injunction against the
government, or any of its subdivisions, officials or any
person or entity, whether public or private acting
under the government direction, to restrain, prohibit
or compel the following acts:

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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]

BAR OPERATIONS COMMISSION

dissipated or materially injured, and that its value


is probably insufficient to discharge the mortgage
debt, or that the parties have so stipulated in the
contract of mortgage;
(c) After judgment, to preserve the property during
the pendency of an appeal, or to dispose of it
according to the judgment, or to aid execution
when the execution has been returned unsatisfied
or the judgment obligor refuses to apply his
property in satisfaction of the judgment, or
otherwise to carry the judgment into effect;
(d) Whenever in other cases it appears that the
appointment of a receiver is the most convenient
and feasible means of preserving, administering,
or disposing of the property in litigation. [Rule 59,
Sec. 1]

RECEIVERSHIP (Asked in the 2001 Bar Exam)


NATURE

Receiver.
person appointed by the court in behalf of all the
parties to the action for the purpose of preserving
and conserving the property in litigation and prevent
its possible destruction or dissipation if it were left in
the possession of any of the parties.

Specific situations when a receiver may be appointed


(a) If a spouse without just cause abandons the other
or fails to comply with his/her obligations to the
family, the aggrieved spouse may petition the
court for receivership. [Family Code, Article 101]
(b) The court may appoint a receiver of the property
of the judgment obligor; and it may also forbid a
transfer or other disposition of, or any
interference with, the property of the judgment
obligor not exempt from execution. [Rule 39, Sec.
41]
(c) After the perfection of an appeal, the trial court
retains jurisdiction to appoint a receiver of the
property under litigation since this matter does
not touch upon the subject of the appeal. [Rule
41, Sec. 9; Acua v. Caluag (1957)]
(d) After final judgment, a receiver may be appointed
as an aid to the execution of judgment. [Philippine
Trust Company v. Santamaria (1929)]
(e) Appointment of a receiver over the property in
custodia legis may be allowed when it is justified
by special circumstances, as when it is reasonably
necessary to secure and protect the rights of the
real owner. [Dolar v. Sundiam (1971)]

PURPOSE

The purpose of a receivership as a provisional


remedy is to protect and preserve the rights of the
parties during the pendency of the main action,
during the pendency of an appeal or as an aid in the
execution of a judgment when the writ of execution
has been returned unsatisfied. The receivership
under Rule 59 is directed to the property which is the
subject of the action and does not refer to the
receivership authorized under banking laws and
other rules or laws. Rule 59 presupposes that there
is an action and that the property subject of the
action requires its preservation. Receivership under
Rule 59 is ancillary to the main action. (Riano).
Commodities Storage v. CA (1997): The guiding
principle is the prevention of imminent danger to the
property. If an action by its nature, does not require
such protection or preservation, said remedy cannot
be applied for and granted.
Arranza v. B.F. Homes (2000): Receivership is aimed
at the preservation of, and at making more secure,
existing rights; it cannot be used as an instrument for
the destruction of those rights.

Alcantara v. Abbas (1963): 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.

CASES WHEN RECEIVER MAY BE APPOINTED

(a) When it appears from the verified application and


other proof that the applicant has an interest in
the property or fund which is the subject of the
action or proceeding, and that such property or
fund is in danger of being lost, removed, or
materially injured unless a receiver be appointed
to administer and preserve it;
(b) When it appears in an action by the mortgagee
for the foreclosure of a mortgage that the
property is in danger of being wasted or

Abrigo v. Kayanan (1983): A clerk of court should not


be appointed as a receiver as he is already burdened
with his official duties.
REQUIREMENTS BEFORE ISSUANCE OF AN ORDER

Requisites and Procedure


(a) Verified application filed by the party requesting
for the appointment of the receiver;

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(b) Applicant must have an interest in the property or


funds subject of the action;
(c) Applicant must show that the property or funds is
in danger of being lost, wasted, or dissipated;
(d) Application must be with notice and must be set
for hearing;
(e) 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.
(f) Before entering upon his duties, the receiver must
be sworn to perform his duties faithfully.

BAR OPERATIONS COMMISSION

Liability for refusal or neglect to deliver property to


receiver
(a) Contempt; and
(b) Be liable to the receiver for the money or the
value of the property and other things so refused
or neglected to be surrendered together with all
damages that may have been sustained by the
party or parties entitled thereto as a consequence
of such refusal or neglect. [Rule 59, Sec. 7]
TWO (2) KINDS OF BOND

(a) Applicants bond


(b) Receivers bond

Who appoints receiver


(a) Court where the action is pending
(b) CA
(c) SC
(d) During the pendency of an appeal, the appellate
court may allow an application for the
appointment of a receiver to be filed in and
decided by the court of origin. [Rule 59, Sec. 1]

TERMINATION OF RECEIVERSHIP
Ground
The necessity for a receiver no longer exists
Procedure
(a) Motu proprio or on motion of either party
(b) Notice to all interested parties and hearing [Rule
59, Sec. 8]

Denial of application or discharge of receiver


(a) If the appointment sought or granted is without
sufficient cause
(b) Adverse party files a sufficient bond to answer for
damages [Rule 59, Sec. 3]
(c) Bond posted by the applicant for grant of
receivership is insufficient
(d) Bond of receiver is insufficient

Effect
(a) Settle accounts of receiver
(b) Delivery of funds to person entitled
(c) Discharge of receiver
(d) Receiver entitled to reasonable compensation to
be taxed as costs against defeated party.
REPLEVIN (Asked in the 1999 Bar Exam)

POWERS OF A RECEIVER

(a) Bring and defend in such capacity actions in his


own name with leave of court
(b) Take and keep possession of the property in
controversy
(c) Receive rents
(d) Collect debts due to himself as receiver or to the
fund, property, estate, person, or corporation of
which he is the receiver
(e) Compound for and compromise the same
(f) Make transfers
(g) Pay outstanding debts
(h) Divide the money and other property that shall
remain among the persons legally entitled to
receive the same
(i) Generally, to do such acts respecting the property
as the court may authorize
(j) Invest funds in his hands, ONLY by order of the
court upon the written consent of all the parties.
[Rule 59, Sec. 6]

WHEN MAY WRIT BE ISSUED

Nature
Replevin may be a main action or provisional
remedy. As a principal action its ultimate goal is to
recover personal property capable of manual delivery
wrongfully detained by a person. Used in this sense,
it is considered as a suit in itself. Replevin under Rule
60 is the provisional remedy. [Riano]

No action may be filed against a receiver without


leave of the court which appointed him.

PAGE 116

Replevin

Preliminary Attachment

Available only where the


principal relief sought in
the action is recovery of
personal property, the
other
reliefs
(e.g.
damages) being merely
incidental thereto.
Can be sought only
where the defendant is
in actual or constructive
possession
of
the
personalty involved.

Available even if the


recovery of personal
property is only an
incidental relief sought
in the action.
May be resorted to even
if the personalty is in the
custody of a third
person.

UP COLLEGE OF LAW

CIVIL PROCEDURE

Replevin

Preliminary Attachment

Extends only to personal


property capable of
manual delivery.
Available to recover
personal property even if
the
same
is
not
concealed, removed or
disposed of.

Extends to all kinds of


property, whether real,
personal or incorporeal.
To
recover
the
possession of personal
property
unjustly
detained (presupposed
that the same is being
concealed, removed or
disposed of to prevent its
being found or taken by
the applicant.
Can still be resorted to
even if the property is in
custodia legis.

Cannot be availed of if
the property is in
custodia legis (e.g. under
attachment,
seized
under a search warrant).

BAR OPERATIONS COMMISSION

thereof according to the best of his knowledge,


information, and belief;
(d) That the property has not been distrained or
taken for a tax assessment or a fine pursuant to
law, or seized under a writ of execution or
preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and
(e) The actual market value of the property. [Rule 60,
Sec. 2]
Bond
The applicant must also give a bond, executed to the
adverse party in double the value of the property as
stated in the affidavit. [Rule 60, Sec.2]
Redelivery bond
The adverse party may, at any time before the
delivery of the property to the applicant, require the
return of the property by filing with the court where
the action is pending a bond executed to the
applicant, in double the value of the property as
stated in the applicants affidavit. [Rule 60, Sec. 5]

Except:
(a) when the seizure is
illegal; [Bagalihog v.
Fernandez (1991)] and
(b) where there is reason
to believe that the
seizure
will
not
anymore be followed
by the filing of the
criminal action in
court or there are
conflicting
claims.
[Chua v. CA (1993)]

Order of Replevin
Upon the filing of affidavit and approval of the bond,
the court shall issue an order and the corresponding
writ of replevin describing the personal property
alleged to be wrongfully detained and requiring the
sheriff forthwith to take such property into his
custody. [Rule 60, Sec. 3]
A writ of replevin may be served anywhere in the
Philippines.
SHERIFFS DUTY IN THE IMPLEMENTATION OF THE WRIT;
WHEN PROPERTY IS CLAIMED BY THIRD PARTY

REQUISITES

Application
Who may apply: party praying for the recovery of
possession of personal property. Applicant need not
be the owner. It is enough that he has right to its
possession. [Yang v. Valdez (1989)]
When:
(a) at the commencement of the action or
(b) before the answer [unlike attachment, injunction
and support pendente lite (anytime before final
judgment) and receivership (anytime even after
final judgment)].

Disposition of Property by Sheriff


(a) The sheriff shall retain the property for 5 days.
The adverse party may object to the sufficiency of
the bond or surety or he may file a redelivery
bond.
(b) If after 5 days and the adverse party failed to
object or his redelivery bond is insufficient, the
sheriff shall deliver the property to the applicant.
[Rule 60, Sec. 6]
(c) The defendant is entitled to the return of the
property under a writ of replevin if:
(1) He seasonably posts a redelivery bond [Rule
60, Sec. 5]
(2) Plaintiffs bond is found to be insufficient or
defective and is not replaced with proper bond
(3) Property is not delivered to the plaintiff for any
reason [Rule 60, Sec. 6]

AFFIDAVIT AND BOND; REDELIVERY BOND

(a) The applicant must show by his own affidavit or


that of some other person who personally knows
the facts:
(b) That the applicant is the owner of the property
claimed, particularly describing it, or is entitled to
the possession thereof;
(c) That the property is wrongfully detained by the
adverse party, alleging the cause of detention

Where Property Claimed by Third Person

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CIVIL PROCEDURE

When third party claims the property and such


person makes affidavit of his title thereto stating his
grounds, and serves such affidavit upon the sheriff
while the latter has possession of the property and a
copy upon the applicant, the sheriff SHALL NOT BE
BOUND to keep property under replevin or deliver
property to the applicant UNLESS the applicant files
a bond approved by the court in favor of the third
person (the bond should not be less than the value
of stated under Sec. 60, Sec. 2; the court shall
determine the value in case of disagreement).

BAR OPERATIONS COMMISSION

ORDINARY CIVIL ACTIONS VERSUS SPECIAL CIVIL


ACTIONS
The fact that an action is subject to special rules
other than those applicable to ordinary civil actions is
what makes a civil action special. [Riano]
Ordinary Civil Action
Governed by ordinary
rules

No claim for damages for the taking or keeping of


the property may be enforced against the bond
UNLESS the action is filed within 120 days from filing
of the bond.

Special Civil Action


Also
governed
by
ordinary
rules
but
subject to specifically
prescribed rules (Rules
62 to 71)

Some concepts applicable to ordinary civil actions


are not applicable in special civil actions. E.g.:
(a) the definition of a cause of action requiring
violation of a right does not appear to be relevant
to the special civil action of declaratory relief and
interpleader;
(b) ordinary civil actions may be filed initially in MTC
or RTC depending on jurisdictional amount while
some special civil actions can only be filed in MTC
(forcible entry and unlawful detainer) and some
cannot be commenced in MTC (certiorari,
prohibition, mandamus). [Riano]

Special Civil Actions


NATURE OF SPECIAL CIVIL ACTIONS
Rules on ordinary civil actions shall apply to special
civil actions insofar as they are not inconsistent with
or may supplement the rules governing the latter.
[Rule 1, Sec. 3]

JURISDICTION AND VENUE


Venue is governed by the general rules on venue,
except as otherwise indicated in the particular rules
for special civil actions.

Since a civil action in general is one by which a party


sues another for the enforcement of a right, or the
prevention or redress of a wrong, a special civil action
is generally brought or filed for the same purpose.
[Riano]

3 special civil actions within the jurisdiction of inferior


courts:
(a) interpleader, provided the amount involved is
within its jurisdiction [Makati Development Corp. v.
Tanjuatco (1969)]
(b) ejectment suits [Rule 70]
(c) contempt [Rule 71]

HOW COMMENCED:

(A) COMPLAINT
(1) interpleader
(2) expropriation
(3) foreclosure of real estate mortgage
(4) partition
(5) forcible entry and unlawful detainer
(B) PETITION
(6) declaratory relief
(7) review of adjudications of Constitutional
commissions
(8) certiorari
(9) prohibition
(10) mandamus
(11) quo warranto
(12) contempt

INTERPLEADER
DEFINITION

A remedy whereby a person who has property in his


possession or has an obligation to render wholly or
partially, without claiming any right in both, comes
to court and asks that the defendants who have
made conflicting claims upon the same property or
who consider themselves entitled to demand
compliance with the obligation be required to litigate
among themselves in order to determine who is
entitled to the property or payment or the obligation
[Beltran v. PHHC, (1969)]

Writs of injunction, mandamus, certiorari,


prohibition, quo warranto and habeas corpus issued
by RTCs are enforceable within their respective
judicial regions. [B.P. 129, Section 21]

PURPOSE

(a) To compel conflicting claimants to interplead and


litigate their several claims among themselves.
[Rule 62, Sec. 1]

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(b) To protect a person against double vexation in


respect of one liability [Beltran, supra]

BAR OPERATIONS COMMISSION

Within the time for filing an answer, each


claimant may file a motion to dismiss.
Grounds:
(a) impropriety of the interpleader action, or
(b) other appropriate grounds specified in
Rule 16

REQUISITES FOR INTERPLEADER

(a) There must be two or more claimants with


adverse or conflicting interests to a property in
the custody or possession of the plaintiff.
(b) The plaintiff has NO CLAIM upon the subject
matter of the adverse claims, or if he has an
interest at all, such interest is NOT DISPUTED by
the claimants.
(c) The subject matter of the adverse claims must be
one and the same.

The period to file the answer shall be tolled.

If the motion is denied, an answer may be filed


within the remaining period, in no case less
than 5 days (reckoned from notice of denial)
[Rule 62, Sec. 4].

Procedure
Complaint filed by the person against whom
conflicting claims are or may be made. [ibid]
The docket and other lawful fees paid by the
complainant, and costs and litigation expenses
shall constitute a lien or charge upon the
subject matter of the action, unless otherwise
ordered by the court. [Rule 62, Sec. 7]

The parties may file counterclaims, crossclaims, third-party complaints and responsive
pleadings thereto. [Rule 62, Sec. 5]

Pre-trial
Court order requiring the conflicting claimants
to interplead with one another. If the interests of
justice so require, the court may direct that the
subject matter be paid or delivered to the court.
[Rule 62, Sec. 2]

Court shall determine conflicting claimants


respective rights and adjudicate their several
claims. [Rule 62, Sec. 6]
WHEN TO FILE

Whenever conflicting claims upon the same subject


matter are or may be made against a person who
claims no interest in the subject matter or an interest
which is not disputed by the claimants. [Rule 62, Sec.
1]

Summons, copy of complaint and order served


upon the conflicting claimants. [Rule 62, Sec. 3]

Each claimant shall file his answer within 15 days


from service of the summons, serving a copy
thereof upon each of the other conflicting
claimants, who may file their reply thereto.

Cannot be availed of to resolve the issue of breach of


undertakings made by defendants, which should be
resolved in an ordinary action for specific
performance or other relief [Beltran, supra].
DECLARATORY RELIEFS AND SIMILAR REMEDIES
WHO MAY FILE THE ACTION

If claimant fails to plead within the time herein


fixed, the court may, on motion, declare him in
default and render judgment barring him from
any claim in respect to the subject matter.

(a) a person interested under a deed, will, contract or


other written instrument
(b) a person whose rights are affected by a statute,
executive order or regulation, ordinance or any
other governmental regulation [Rule 63, Sec. 1]

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Parties
(a) all persons who have or claim any interest which
would be affected by the declaration [Rule 63,
Sec. 2]
(b) If action involves the validity of a
statute/executive
order/regulation/other
governmental regulation, the Solicitor General
shall be notified. [Rule 63, Sec. 3]
(c) If action involves the validity of a local
government ordinance, the prosecutor/attorney
of the LGU involved shall be notified. [Rule 63,
Sec. 4]
Subject Matter
Validity of a statute, EO
or regulation, or any
governmental regulation
Validity of a local
government ordinance
Constitutionality of a
local
government
ordinance

BAR OPERATIONS COMMISSION

(2) If before the final termination of the case, a


breach or violation of an instrument or a
statute, etc. should take place, the action may
be converted into an ordinary action. [Rule 63,
Sec. 6]
(d) actual justiciable controversy [Velarde v. SJS
(2004)]
(e) adverse interests between the parties
A declaratory relief is not available for a
declaration of citizenship [Villa-Abrille v. Republic
(1956)] or the validity of a registration certificate
[Obiles v. Republic (1953)] as they are unilateral in
nature and without conflicting adverse interests.

Notice Given To
Sol Gen

(f) issue must be ripe for judicial determination


[Velarde v. SJS (2004)]
(g) adequate relief is not available through other
means or other forms of action or proceedings.
[Ollada v. Central Bank (1962)]

Prosecutor or attorney of
the LGU
Sol Gen

A court decision cannot be the subject of a


declaratory relief since there exists other
remedies, i.e., appeal or a motion for clarificatory
judgment [Tanda v. Aldaya (1956)]

Baguio Citizens Action v. City Council of Baguio (1983):


Non-joinder of interested persons is not a
jurisdictional defect; but persons not joined shall not
be prejudiced in their interests unless otherwise
provided by the Rules.

WHEN COURT
DECLARATION

MAY

REFUSE

TO

MAKE

JUDICIAL

(a) where a decision would not terminate the


uncertainty or controversy which gave rise to the
action, or
(b) where the declaration or construction is not
necessary and proper under the circumstances.
[Rule 63, Sec. 5]

Commission of Customs v. Cloribel (1977): A thirdparty complaint is not available in a declaratory


relief.
Visayan Packing v. Reparations Commission (1987): A
compulsory counterclaim may be set up in a petition
for declaratory relief.

CONVERSION TO ORDINARY ACTION

Requisites
(a) before the final termination of the case
(b) a breach or violation of an instrument or a
statute, executive order or regulation, ordinance,
or any other governmental regulation should take
place

Where filed
(a) in the proper RTC [Rule 63, Sec. 1]
(b) not within the original jurisdiction of the Supreme
Court, even if pure questions of law are involved.
[Remotigue v. Osmea (1967)]

Effect
The parties shall be allowed to file such pleadings as
may be necessary or proper. [Rule 63.6]

REQUISITES OF ACTION FOR DECLARATORY RELIEF

(a) subject matter of the controversy must be a deed,


will, contract or other written instrument, statute,
executive order or regulation, or ordinance [Rule
63, Sec. 1];
(b) the terms of said documents and the validity
thereof are doubtful and require judicial
construction [Santos v. Aquino (1953)]
(c) no breach of the documents in question.
[Reparations Commission v. Northern Lines (1970)]
Otherwise, an ordinary civil action is the remedy.
(1) Concept of a cause of action in ordinary civil
actions does not apply.

PROCEEDINGS CONSIDERED AS SIMILAR REMEDIES

Reformation of an instrument [Arts. 1359-1369 Civil


Code]
Definition
Art. 1359, Civil Code. When, there having been a
meeting of the minds of the parties to a contract,
their true intention is not expressed in the instrument
purporting to embody the agreement, by reason of
mistake, fraud, inequitable conduct or accident, one

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of the parties may ask for the reformation of the


instrument to the end that such true intention may
be expressed.

(c) An aggrieved party may bring the questioned


judgment, etc. directly to the SC on certiorari
under Rule 65. [Rule 64, Sec. 2]

If mistake, fraud, inequitable conduct, or accident


has prevented a meeting of the minds of the parties,
the proper remedy is not reformation of the
instrument but annulment of the contract.

Such petition for certiorari shall not stay the


execution of the judgment, etc. sought to be
reviewed unless otherwise directed by the Supreme
Court [Rule 64, Sec. 8]

Art.1369, Civil Code. The procedure for the


reformation of instrument shall be governed by rules
of court to be promulgated by the Supreme Court

PROCEDURE

See next page.

Consolidation of ownership [Art. 1607 Civil Code] [Rule


63, Sec. 1(2)]
Definition
Art. 1607, Civil Code. In case of real property, the
consolidation of ownership in the vendee by virtue of
the failure of the vendor to comply with the
provisions of article 1616 shall not be recorded in the
Registry of Property without a judicial order, after the
vendor has been duly heard.
Quieting of title to real property [Arts. 476-481 Civil
Code]
Definition
Art. 476, Civil Code. Whenever there is a cloud on title
to real property or any interest therein, by reason of
any instrument, record, claim, encumbrance or
proceeding which is apparently valid or effective but
is in truth and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said title,
an action may be brought to remove such cloud or to
quiet the title.
An action may also be brought to prevent a cloud
from being cast upon title to real property or any
interest therein.
Art. 481, Civil Code. The procedure for the quieting of
title or the removal of a cloud therefrom shall be
governed by such rules of court as the Supreme
Court shall promulgated.
REVIEW OF JUDGMENTS AND FINAL ORDERS OR
RESOLUTION OF THE COMELEC AND COA
SCOPE

(a) Applicable only to judgments and final orders of


the COMELEC and COA [Rule 64, Sec. 1]
(b) Judgments/orders of the Civil Service
Commission are now reviewable by the Court of
Appeals under Rule 43, eliminating recourse to
the Supreme Court (SC). [RA 7902; SC Revised
Administrative Circular No. 1-95]

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Order to Comment [Rule 64, Sec. 6]


If the SC finds the petition sufficient in form and
substance, it shall order the respondents to file
their comments on the petition within 10 days from
notice thereof.

File a petition for review.


When [Rule 64, Sec. 3]:
(a) Within 30 days from notice of judgment/final
order/resolution sought to be reviewed
(b) Filing of motion for reconsideration/new trial with
Constitutional commission interrupts the 30-day
period. If motion is denied, aggrieved party may
file petition within remaining period, which shall
not be less than 5 days from notice of denial.

Grounds for dismissal:


(a) Petition not sufficient in form and substance
(b) Petition was filed manifestly for delay
(c) the questions raised are too unsubstantial to
warrant further proceedings.

Form [Rule 64, Sec. 5]: verified and accompanied by


(annexes):
(a) a clearly legible duplicate original or certified true
copy of the subject judgment, etc.
(b) certified true copies of such material portions of
the record referred to in the petition
(c) other documents relevant and pertinent to the
petition
(d) proof of service of a copy of the petition on the
Commission and the adverse party
(e) proof of the timely payment of the docket and
other lawful fees

Comments of Respondents [Rule 64, Sec. 7]


Requirements:
(a) original copy with certified true copies of
material portions of the record as are referred
to in the comment and certified true copies of
other supporting papers
(b) one original (properly marked) and four
copies, unless the case is referred to the
Court En Banc, in which event, the parties
shall file ten additional copies (with plain
copies of all documents attached to the
original)

in one original (properly marked) and four copies,


unless the case is referred to the Court En Banc, in
which event, the parties shall file ten additional
copies. (containing plain copies of all documents
attached to the original copy of the petition)

Parties to cases before the Supreme Court are


further required, on voluntary basis for the first
six months following the effectivity of this Rule
and compulsorily afterwards unless the period is
extended, to submit, simultaneously with their
court-bound papers, soft copies of the same and
their annexes (the latter in PDF format) either by
email to the Courts e-mail address or by
compact disc (CD). This requirement is in
preparation for the eventual establishment of an
e-filing paperless system in the judiciary.
[Efficient Use of Paper Rule, Section 5]

Parties to cases before the Supreme Court are further


required, on voluntary basis for the first six months
following the effectivity of this Rule and compulsorily
afterwards unless the period is extended, to submit,
simultaneously with their court-bound papers, soft
copies of the same and their annexes (the latter in
PDF format) either by email to the Courts e-mail
address or by compact disc (CD). This requirement is
in preparation for the eventual establishment of an efiling paperless system in the judiciary. [Efficient Use
of Paper Rule, Section 5]
Contents [Rule 64, Sec. 5]:
(a) name of aggrieved party (petitioner)
(b) respondents: Commission concerned and
person(s) interested in sustaining the judgment a
quo
(c) facts
(d) issues involved
(e) grounds and brief arguments relied upon for
review
(f) prayer for judgment annulling or modifying the
question judgment, etc.
(g) material dates showing that it was filed on time
(h) certification against non-forum shopping

Copy of the comment shall be served on the


petitioner.

Decision [Rule 64, Sec. 9]


Case is deemed submitted for decision upon:
(a) filing of the comments on the petition, and such
other pleadings or papers as may be required or
allowed.
(b) expiration of the period to file the pleadings.

Findings of fact of the Commission supported by


substantial evidence shall be final and nonreviewable.

Exceptions: SC sets the case for oral argument or


requires parties to submit memoranda.

Failure to comply with foregoing requirements shall


be sufficient ground for dismissal.

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Application of Rule 65 under Rule 64

is read in relation to Section 3, Rule 46, which states


that failure to comply with any of the documentary
requirements, such as the attachment of relevant
pleadings, shall be sufficient ground for the
dismissal of the petition. [Radio Philippines Network
v. Yap (2012)]

DISTINCTION IN THE APPLICATION OF RULE 65 TO


JUDGMENTS OF THE COMELEC AND COA AND THE
APPLICATION OF RULE 65 TO OTHER TRIBUNALS, PERSONS
AND OFFICERS

Rule 64

Rule 65

Directed only to the


judgments, final orders
or
resolutions
of
COMELEC and COA
Filed within 30 days
from notice of the
judgment
The filing of a MR or a
Motion for New Trial if
allowed, interrupts the
period for the filing of
the petition for certiorari.
If the motion is denied,
the aggrieved party may
file the petition within
the remaining period,
but which shall not be
less than 5 days
reckoned from the notice
of denial.

Directed to any tribunal,


board,
or
officer
exercising judicial or
quasi-judicial functions
Filed within 60 days
from notice of the
judgment
The period within which
to file the petition if the
MR or new trial is
denied, is 60 days from
notice of the denial of
the motion.

BAR OPERATIONS COMMISSION

Note: (In the 2005 and 2008 Bar Exams, bar


examinees were asked to compare Petition for review
on Certiorari and Certiorari)
Certiorari
Suarez v. NLRC (1998): Questions of fact cannot be
raised in an original action for certiorari. Only
established or admitted facts may be considered.
Medran v. CA (1949): Findings of fact of CA are not
binding upon SC in an original action for certiorari.
Republic v. St. Vincent de Paul (2012): Time for filing:
Under Section 4, Rule 65 of the Rules of Court and
as applied in Laguna Metts Corporation, the general
rule is that a petition for certiorari must be filed
within sixty (60) days from notice of the judgment,
order, or resolution sought to be assailed. Under
exceptional circumstances, however, and subject to
the sound discretion of the Court, said period may be
extended
Prohibition
Prohibition is a preventive remedy. However, to
prevent the respondent from performing the act
sought to be prevented during the pendency of the
proceedings for the writ, the petitioner should obtain
a restraining order and/or writ of preliminary
injuction. [Regalado]

CERTIORARI, PROHIBITION AND MANDAMUS


The original action of certiorari is not a substitute for
appeal. [Lobite v. Sundiam (1983)]
Exceptions:
(a) appeal is not a speedy and adequate remedy
[Salvadores v. Pajarillo (1947)]
(b) the orders were issued either in excess of or
without jurisdiction [Aguilar v. Tan (1970)]
(c) special considerations, i.e., public welfare or
public policy [Jose v. Zulueta (1961)]
(d) the order is a patent nullity [Marcelo v. De
Guzman (1982)]
(e) the decision in the certiorari case will avoid future
litigations [St. Peter Memorial Park v. Campos
(1975)]
(f) when the broader interest of justice so requires
[Mendez v. CA (2012)]
(g) when the writs issued are null and void [Mendez v.
CA (2012)]
(h) when the questioned order amounts to an
oppressive exercise of judicial authority [Mendez
v. CA (2012)]

Enriquez v. Macadaeg (1949) : Prohibition is the


remedy where a motion to dismiss is improperly
denied.
Mandamus
A writ of mandamus will not issue to control the
exercise of official discretion or judgment, or to alter
or review the action taken in the proper exercise of
the discretion of judgment, for the writ cannot be
used as a writ of error or other mode of direct review.
However, in extreme situations generally in criminal
cases, mandamus lies to compel the performance of
the fiscal of discretionary functions where his
actuations are tantamount to a wilful refusal to
perform a required duty. [Regalado]
General rule: In the performance of an official duty or
act involving discretion, such official can only be

The requirement in Section 1 of Rule 65 of the Rules


of Court to attach relevant pleadings to the petition

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directed by mandamus to act but not to act in one


way or the other.
Exception: gross abuse of discretion, manifest
injustice, palpable excess of authority [Kant Wong v.
PCGG (1987)]

BAR OPERATIONS COMMISSION

ORDER TO COMMENT
If the petition is sufficient in form and
substance to justify such process, the
court shall issue an order requiring the
respondent(s) to comment on the petition
within 10 days from receipt of a copy
thereof.

Mandamus can be availed of only by the party who


has direct legal interest in the right sought to be
enforced. HOWEVER, if the question is one of public
right, it is sufficient to show that the petitioner is a
citizen. [Tanada v. Tuvera (1985)]

Such order shall be served on the


respondents in such manner as the court
may direct, together with a copy of the
petition and any annexes thereto. [Rule
65, Sec. 6]

WHEN PETITION FOR CERTIORARI, PROHIBITION AND


MANDAMUS IS PROPER

See Annex F.
Procedure

HEARING OR MEMORANDA
After the comment or other pleadings
required by the court are filed, or the time for
the filing thereof has expired, the court may
hear the case or require the parties to submit
memoranda. [Rule 65, Sec. 8]

FILE
PETITION
FOR
CERTIORARI/
PROHIBITION / 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]

JUDGMENT
If after such hearing or submission of
memoranda or the expiration of the period
for the filing thereof, the court finds that
the allegations of the petition are true, it
shall render judgment for the relief prayed
for or to which the petitioner is entitled.

Where filed:
(a) Supreme Court
(b) Court of Appeals
If it involves the acts of a quasi-judicial
agency, the petition shall be filed only in
the CA, unless otherwise provided by law
or the Rules.
(c) Regional Trial Court, if it relates to acts /
omissions of a lower court / corporation /
board / officer / person.
Sandiganbayan, if it is in aid of its appellate
jurisdiction. [Rule 65, Sec. 4]

The court, however, may dismiss the


petition if it finds the same to be (1)
patently without merit, (2) prosecuted
manifestly for delay, or that (3) the
questions raised therein are too
unsubstantial to require consideration.
[Rule 65, Sec. 8]

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Mandamus Distinguished From Injunction


Mandamus
Injunction
Special civil action
Ordinary civil action
Directed
against
a Directed
against
a
tribunal,
corporation litigant
board or officer
Purpose is for the Purpose is for the
tribunal,
corporation, defendant either to
board or officer to refrain from an act or to
perform a ministerial perform not necessarily a
and legal duty
legal and ministerial duty
Purpose is to perform a Purpose is to prevent an
positive legal duty and act to maintain the
not to undo what has status quo between the
been done
parties

SERVICE AND ENFORCEMENT OF ORDER


OR JUDGMENT
A certified copy of the judgment rendered
shall be served upon the court, quasi-judicial
agency, tribunal, corporation, board, officer
or person concerned in such manner as the
court may direct, and disobedience thereto
shall be punished as contempt.
An execution may issue for any damages or
costs awarded in accordance with section 1
of Rule 39. [Rule 65, Sec. 9]

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]

EXCEPTIONS TO FILING OF MOTION FOR RECONSIDERATION


BEFORE FILING PETITION

General rule: A motion for reconsideration must first


be availed of before certiorari to enable the lower
court to correct its mistakes without the intervention
of the lower courts. [BA Finance v. Pineda (1982)]

CERTIORARI
DISTINGUISHED
FROM
APPEAL
BY
CERTIORARI;
PROHIBITION
AND
MANDAMUS
DISTINGUISHED FROM INJUNCTION; WHEN AND WHERE TO
FILE PETITION

Exceptions:
(a) the order is a patent nullity [Vigan Elec. Light v.
Public Service Commission (1964)]
(b) the questions raised in the certiorari have been
duly raised and passed upon by the lower court
[Fortich-Celdran v. Celdran (1967)] or are the same
as those raised and passed upon in the lower
court [Pajo v. Ago (1960)]
(c) there is an urgent necessity for the resolution of
the question and delay would prejudice the
interests of the government [Vivo v.Cloribel (1966)]
(d) the MR would be useless [People v. Palacio
(1960)]
(e) the petitioner was deprived of due process and
there is extreme urgency for relief [Luzon Surety v.
Marbella (1960)]
(f) the proceeding was ex parte in which the
petitioner had no opportunity to object [Republic
v. Maglanoc (1963)]
(g) the issue raised is purely a question of law or
where the public interest is involved [PALEA v.
PAL (1982)]

Certiorari Distinguished From Appeal


Certiorari
Appeal
Proper to correct errors Proper where error is not
of jurisdiction committed one of jurisdiction but an
by lower courts, grave error of law or fact which
abuse of discretion which is a mistake of judgment
is tantamount to lack of
jurisdiction
Certiorari
invokes Appeal
when
filed
original jurisdiction of the invokes the appellate
court
jurisdiction of the court
Within 60 days from Filed within period of
notice of judgment, order appeal
or resolution
An
original
and Continuation
of
the
independent action
original case
Impleads the tribunal, Parties to an appeal are
court, board or officer
the original parties of the
case

RELIEFS PETITIONER IS ENTITLED TO

Petitioner may be entitled to:


(a) Injunctive relief Court may may issue orders
expediting the proceedings, and it may also grant
a temporary restraining order or a writ of
preliminary injunction for the preservation of the
rights of the parties [Rule 65, Sec. 7]
(b) Incidental reliefs as law and justice may require
[Rule 65, Secs. 1 and 2]
(c) Other reliefs prayed for or to which the petitioner
is entitled [Rule 65, Sec. 8]

Prohibition Distinguished From Injunction


Prohibition
Injunction
Directed to the court or Directed against a party
tribunal directing it to to the action
refrain
from
the
performance of acts
which
it
has
no
jurisdiction to perform

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DISTINGUISH FROM QUO WARRANTO IN THE OMNIBUS


ELECTION CODE

FACTIONS/OMISSIONS OF MTC/RTC IN ELECTION CASES

Jurisdiction in Election Cases [Omnibus Election


Code, Sec. 268]:

ROC Rule 66
OEC Sec. 253
Filed by whom
Solicitor General or Public Any voter
Prosecutor in behalf of the
Republic; Individual
Where filed
By SolGen: RTC Manila, COMELEC, if against
CA or SC; Otherwise, RTC election of a Member
with
jurisdiction
over of Congress, Regional,
territorial area where Provincial or City
respondent resides, CA or Officer;
SC
appropriate RTC or
MTC, if against a
municipal or barangay
officer
Period for filing
Within 1 year from ouster, Within 10 days after
or from the time the right proclamation
of
to the position arose
results
Against whom, grounds
A person, who usurps, Ineligibility
or
intrudes into or unlawfully disloyalty
to
the
holds or exercises a public Republic
office,
position
or
franchise;

RTC: has the exclusive original jurisdiction to try and


decide any criminal action or proceedings for
violation of the Omnibus election Code
Exception: those relating to the offense of failure to
register or failure to vote which shall be under the
jurisdiction of the metropolitan or municipal trial
courts.
From the decision of the courts, appeal will lie the
same as in other criminal cases.
Note: RA 7691 which expanded the jurisdiction of the
MTC, did not divest the RTC of its jurisdiction over
the said offenses, even if the imposable penalty is
not more than 6 years of imprisonment [COMELEC v.
Noynay (1998)]
WHERE TO FILE PETITION [Rule 65, Sec. 4]

The petition shall be filed:


(a) In the SC; or
(b) In the RTC exercising jurisdiction over the
territorial area , if it relates to the acts or
omissions of a lower court or of a corporation,
board, officer or person;
(c) In the CA, whether or not the same is in aid of its
appellate jurisdiction; or
(d) In the Sandiganbayan, if it is in aid of its appellate
jurisdiction.

A public officer, who does


or suffers an act which, by
provision
of
law,
constitutes a ground for
forfeiture of office

Note: If it involves the acts or omissions of a quasijudicial agency, and unless otherwise provided by
law or these rules, the petition shall be filed in and
cognizable only by the CA.
EFFECTS OF FILING OF AN UNMERITORIOUS PETITION

BAR OPERATIONS COMMISSION

How commenced
By a verified petition [Rule 66, Sec. 1]
WHEN THE GOVERNMENT COMMENCES AN ACTION AGAINST
INDIVIDUALS

[Rule

(a) By Government, brought in the name of the


Republic of the Philippines, against:
(1) A person who usurps, intrudes into, or
unlawfully holds or exercises a public office,
position or franchise
(2) A public officer who does not or suffers an act
which, by the provision of law, constitutes a
ground for the forfeiture of his office
(3) An association which acts as a corporation
within the Philippines without being legally
incorporated or without lawful authority so to
act [Rule 66, Sec. 1]

65, Sec. 8]
The court, however, may dismiss the petition if it
finds the same to be patently without merit,
prosecuted manifestly for delay, or that the
questions raised therein are too unsubstantial to
require consideration.
QUO WARRANTO
Quo warranto is the remedy to try disputes with
respect to the title to a public office.

(b) When Solicitor General or public prosecutor


MUST commence action:
(1) When directed by the President of the
Philippines.

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(2) When upon complaint or otherwise, he has


good reason to believe that any case specified
in Sec. 1 can be established by proof. [Rule 66,
Sec. 2]

BAR OPERATIONS COMMISSION

any part thereof or any interest therein, showing


as far as practicable the separate interest of each
defendant.
(d) The following must be clearly stated in the
complaint , if applicable:
(1) If the title to any property sought to be
expropriated appears to be in the Republic of
the Philippines, although occupied by private
individuals;
(2) If the title is otherwise obscure or doubtful so
that the plaintiff cannot with accuracy or
certainty specify who are the real owners.
[Rule 67, Sec. 1]

(c) When Solicitor General or public prosecutor MAY


commence action:
(1) with permission of the court
(2) at the request and upon the relation of
another person
(3) Officer bringing such action may first require
an indemnity for the expenses and costs of the
action in an amount approved by and
deposited in court. [Rule 66, Sec. 3]

TWO STAGES IN EVERY ACTION FOR EXPROPRIATION


WHEN INDIVIDUAL MAY COMMENCE AN ACTION

By a person claiming to be entitled to a public office


or position, brought in his own name, against
another who usurped or unlawfully held or exercised
such public office or position [Rule 66, Sec. 5]

Determination of the authority of the plaintiff to


exercise the power of eminent domain and the
propriety of its exercise in the context of the facts.
This stage is terminated by either an order of
dismissal of the action or order of the condemnation
declaring that expropriation is proper and legal.
These orders are final and therefore appealable.
[Municipality of Bian v. Garcia (1989)]

JUDGMENT IN QUO WARRANTO ACTION

When the respondent is found guilty of usurping,


intruding into, or unlawfully holding or exercising a
public office, position, or franchise, judgment shall
be rendered that such respondent be ousted and
altogether excluded therefrom, and that the
petitioner or relator recover his costs. [Rule 66, Sec.
9]

It includes an inquiry into the propriety of the


expropriation its necessity and public purpose.
[Riano]
Determination of just compensation.
This is done with the assistance of not more than
three (3) commissioners.

RIGHTS OF A PERSON ADJUDGED ENTITLED TO PUBLIC


OFFICE

If judgment be rendered in favor of the person


averred in the complaint to be entitled to the public
office he may, after taking the oath of office and
executing any official bond required by law, take
upon himself the execution of the office, and may
immediately thereafter demand of the respondent
all the books and papers in the respondent's custody
or control appertaining to the office to which the
judgment relates.

The order fixing just compensation is also final and


appealable (Ibid). Just compensation is to be
determined as of the date of the taking of the
propriety or the filing of the complaint, whichever
comes first.
Ansaldo v. Tantuico (1990): There is taking when the
owner is actually deprived or dispossessed of his
property; when there is a practical destruction or a
material impairment of the value of his property or
when he is deprived of the ordinary use thereof.

The person adjudged entitled to the office may also


bring action against the respondent to recover the
damages sustained by such person by reason of the
usurpation. [Rule 66, Sec. 10]

Bardillon v. Bgy. Masili (2003): An expropriation suit is


incapable of pecuniary estimation. Accordingly, it
falls within the jurisdiction of RTCs, regardless of the
value of the subject property.

EXPROPRIATION
MATTERS TO ALLEGE IN COMPLAINT FOR EXPROPRIATION

The complaint for expropriation must be VERIFIED.


Contents:
(a) The right and purpose of expropriation
(b) Description of the real or personal property
sought to be expropriated;
(c) The complaint shall join as defendants all
persons owning or claiming to own, or occupying

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Rule 67
depositary
Amount for deposit
equivalent to 100%
assessed value of the
property for purposes of
taxation.

WHEN PLAINTIFF CAN IMMEDIATELY ENTER INTO


POSSESSION OF THE REAL PROPERTY, IN RELATION TO RA

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

Initial deposit with an


authorized government

Immediate payment to
the property owner

Amount to be paid is:


100% of the value of
the land as stated in
the tax declaration or
current
zonal
valuation, whichever
is higher, and the
value
of
improvements, OR
in the case of utmost
urgency, the proffered
value of the property
to be seized

See table of comparison under the preceding


subsection, column of RA 8974.
DEFENSES AND OBJECTIONS

No Objection Or Defense
To The Taking

Has Objection Or
Defense To The Taking

What to file and serve


Notice of appearance Answer
and manifestation
complaint

to

the

Period to file
Time stated in the summons
Contents
Manifestation to the Specifically
effect that he has no designating/identifying
objection or defense;
the property in which he
claims to have an
Specifically
interest in and the
designating/identifying
nature and extent of
the property in which he the interest;
claims to be interested
ALL his objections and
defenses
to
the
complaint
or
any
allegation therein
Prohibited
Counterclaim,
crossclaim,
third
party
complaint
in
any
pleading

Riano opines that Sec. 2 of Rule 67 is deemed


modified by RA 8974. He noted the following
differences:
RA 8974
Upon filing of the
complaint
Right-of-way, site or
location of national
government
infrastructure
projects

RA 8974

NEW SYSTEM OF IMMEDIATE PAYMENT OF INITIAL JUST


COMPENSATION

Upon compliance with the guidelines abovementioned, the court shall immediately issue to the
implementing agency an order to take possession of
the property and start the implementation of the
project.

Rule 67
Before issuance of writ of
possession
Expropriation
proceedings initiated by
the national government

BAR OPERATIONS COMMISSION

A foreclosure action must be brought in the RTC of


the province where the land or any part thereof is
situated.
A defendant waives all defenses and objections not
so alleged, but the court, in the interest of justice,

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BAR OPERATIONS COMMISSION

may permit amendments to the answer not to be


made later than ten (10) days from filing thereof.

and report to the court the just compensation for the


property sought to be taken. [Rule 67, Sec. 5]

At the trial of the issue of just compensation,


whether the defendant has previously appeared or
answered, he may present evidence as to the amount
of the compensation to be paid for his property, and
he may share in the distribution of the award. [Rule
66, Sec. 3]

APPOINTMENT OF COMMISSIONERS; COMMISSIONERS


REPORT; COURT ACTION UPON COMMISSIONERS REPORT

Order of appointment to be served on the parties.


Objections to the appointment of any of the
commissioners shall be filed in court within ten (10)
days, and shall be resolved within thirty (30) days
after all the commissioners have received copies of
the objections.

ORDER OF EXPROPRIATION

It declares that the plaintiff has a lawful right to take


the property sought to be expropriated for the public
use or purpose described in the complaint, upon
payment of just compensation to be determined as
of the date of the taking of the property or the filing
of the complaint whichever is earlier.

Powers and duties of commissioners:


(a) Parties can present evidence before the
commissioners and the latter have the power to
administer oaths or hearings before them;
(b) They can, after due notice to the parties to attend,
view and examine the property sought to be
expropriated and its surroundings and may
measure the same;

It is issued by the court in which the complaint for


expropriation is filed when:
(a) objections or defenses of the defendant have
been overruled, or
(b) the defendant raised no such defense or
objection, or
(c) No party appears to defend. [Rule 67, Sec. 4]

Exception: when the parties agree otherwise, the


commissioners cannot view and examine the
property
(1) The commissioners shall assess the
consequential damages to the property taken
and deduct from such consequential damages
the consequential benefits derived by the
owner from the public use or purpose of the
property taken, the operation of its franchise
by the corporation or person taking the
property.
(2) In no case shall the consequential benefits
assessed exceed the consequential damages
assessed, or the owner be deprived of the
actual value of his property so taken. [Rule 67,
Sec. 6]
(c) The commissioners shall make full and accurate
report to the court of all their proceedings.
(1) The report shall be filed within 60 days from
the date the commissioners were notified of
their appointment.
(2) Upon filing of the report, the clerk of court
shall serve copies thereof on all interested
parties, with notice that they are allowed ten
(10) days within which to file objections to the
findings of the report, if the parties desire.
[Rule 67, Sec. 7]
(d) After the 10-day period for objecting to the
commissioners report, the court, after hearing,
may:
(1) ACCEPT the report and render JUDGMENT in
accordance therewith;
(2) RECOMMIT the report to the commissioners
for further report of facts;

ASCERTAINMENT OF JUST COMPENSATION

Just Compensation
is defined as the full and fair equivalent of the
property taken from its owner by the expropriator.
Determined as of the date of taking of the property,
or the filing of the complaint, whichever came first.
[Rule 67, Sec. 4]
The measure is not the takers gain, but the owners
loss. To compensate is to render something which is
equal in value to that taken or received.
The word just is used to intensify the meaning of
the word compensation; to convey the idea that
the equivalent to be rendered for the property taken
shall be real, substantial, full, and ample.
In eminent domain or expropriation proceedings, the
general rule is that the just compensation which the
owner of condemned property is entitled to is the
market value.
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)]
Upon the rendition of the order of expropriation, the
court shall appoint not more than 3 competent and
disinterested persons as commissioners to ascertain

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(3) SET ASIDE the report and APPOINT new


commissioners;
(4) ACCEPT the report IN PART and REJECT it IN
PART;

BAR OPERATIONS COMMISSION

(b) Extrajudicially proper only when so provided in


contracts in accordance with Act. No. 3135;
governed by A.M. No. 99-10-05-0.
Monte de Piedad v. Rodrigo (1931) : A foreclosure
action must be brought in the RTC of the province
where the land or any part thereof is situated.

And make such order or render judgment as shall


secure to the plaintiff the property essential to
the exercise of his right of expropriation and to
the defendant just compensation for the property
so taken. [Rule 67, Sec. 8]

If a mortgage contract covers several distinct parcels


of land situated in different provinces, the action may
be brought in the RTC of any of the provinces and
the judgment will be enforceable against any of the
parcels of land involved.

RIGHTS OF PLAINTIFF UPON JUDGMENT AND PAYMENT

(a) Right to enter upon the property expropriated


and appropriate it for the public use or purpose
as stated. Upon payment by the plaintiff to the
defendant of the compensation fixed by the
judgment, with legal interest thereon from the
taking of the possession of the property, or after
tender to him of the amount so fixed and
payment of the costs, the plaintiff shall have the
right to enter upon the property expropriated and
to appropriate it for the public use or purpose
defined in the judgment, or to retain it should he
have taken immediate possession thereof under
Sec. 2. [Rule 67, Sec. 10]
(b) Right to enter upon the property even pending
appeal. The right of the plaintiff to enter upon the
property of the defendant and appropriate the
same for public use or purpose shall not be
delayed by an appeal from the judgment.

JUDGMENT ON FORECLOSURE FOR PAYMENT OR SALE

Judgment
Payment
If upon the trial, the court shall find the facts set
forth in the complaint to be true, it shall ascertain
the amount due to the plaintiff upon the mortgage
debt or obligation, including interest and other
charges as approved by the court, and costs, and
shall render judgment for the sum so found due and
order that the same be paid to the court or to the
judgment obligee within a period of not less than 90
days nor more than 120 days from the entry of
judgment (equity of redemption).
Sale
In default of such payment the property shall be sold
at public auction to satisfy the judgment. [Rule 68,
Sec. 2]

The judgment entered in expropriation proceedings


shall state definitely, by an adequate description, the
particular property or interest therein expropriated,
and the nature of the public use or purpose for which
it is expropriated. [Rule 67, Sec. 13]

SALE OF MORTGAGED PROPERTY; EFFECT

(a) When the defendant fails to pay the amount of


the judgment within the period specified therein,
the court, upon motion, shall order the property
to be sold in the manner and under the provisions
of Rule 39 and other regulations governing sales
of real estate under execution.
(1) It is the ministerial duty of the court to order
the foreclosure of the property when the debt
is not paid within the period specified.
(2) A motion for such order of sale is non-litigable
and may be made ex parte. [Govt of P.I. v De
las Cajigas (1931)]
(b) Such sale shall not affect the rights of persons
holding prior encumbrances upon the property or
a part thereof, and
(c) When confirmed by an order of the court, also
upon motion, it shall operate to divest the rights
in the property of all the parties to the action and
to vest their rights in the purchaser, subject to
such rights of redemption as may be allowed by
law.

EFFECT OF RECORDING OF JUDGMENT

When real estate is expropriated, a certified copy of


the judgment entered in expropriation proceedings
shall be recorded in the registry of deeds of the place
in which the property is situated, and its effect shall
be to vest to plaintiff the title to the real estate so
described for such public use or purpose. [Rule 67,
Sec. 13]
FORECLOSURE OF REAL ESTATE MORTGAGE
(Asked in the 2003 Bar Exam)
The cause of action in a foreclosure suit is generally
the non-payment of the mortgage loan, but it may
be on other grounds which under the contract
warrant the foreclosure, such as the violation of the
other conditions therein.
Foreclosure may be made:
(a) judicially governed by Rule 68

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(d) Possession: Upon the finality of the order of


confirmation or upon the expiration of the period
of redemption when allowed by law, the
purchaser at the auction sale or last
redemptioner, if any, shall be entitled to the
possession of the property, unless a third party is
actually holding the same adversely to the
judgment obligor.
(e) The said purchaser or last redemptioner may
secure a writ of possession, upon motion, from
the court which ordered the foreclosure. [Rule 68,
Sec. 3]
(f) The purchaser is entitled to a writ of possession
and it is ministerial upon the court to issue a writ
of possession in his favor upon an ex parte
motion. [Barican, et al v Caguioa, et al, (1986)]

BAR OPERATIONS COMMISSION

If the debtor dies, the deficiency may be filed as a


claim against his estate. [Rule 86, Sec. 7]
Exceptions:
(a) Third Party Mortgagor - No deficiency judgment
may be rendered where the mortgage was
executed by a third person to secure the
obligation of a debtor, such third person not
having assumed personal liability for the debt.
The remedy is an ordinary action against the
debtor. [Philippine Trust Co. v. Echaus Tan Siusa
(1929)]
(b) Extrajudicial Foreclosure - There can be no
deficiency judgment because there was no
judicial proceeding in the foreclosure. Recovery
can be made through a separate action. [DBP v
Mirang (1975); DBP v Zaragosa, (1978); PNB v CA
(1999)]

DISPOSITION OF PROCEEDS OF SALE

Claims to be satisfied by the proceeds of the public


sale of mortgaged property (in order):
(a) Costs incurred in the sale of property
(b) Claim of the person foreclosing the property
(c) Claims of junior encumbrancers in the order of
their priority

Instances when court cannot render deficiency


judgment
JUDICIAL FORECLOSURE V. EXTRAJUDICIAL FORECLOSURE

If proceeds of the sale exceeds the cost of the sale as


well as the claims of the person foreclosing the
property and junior encumbrancers, the residual
amount shall be given to the mortgagor or his agent,
or to the person entitled to it. [Rule 68, Sec. 4]
If the proceeds of the sale is less than the amount of
the claims to be satisfied, the person foreclosing the
property may move for a DEFICIENCY JUDGMENT
from the court confirming the foreclosure sale, to
recover the amount of the deficiency in his claim.

Judicial Foreclosure
Governed by the Rules of
Court
Involves the filing of an
independent action
Equity of redemption
EXCEPT
if
the
foreclosure is in favor of
banks as mortgagees, a
Right of redemption
exists
There could be a
deficiency judgment

DEFICIENCY JUDGMENT

Definition: A judgment against a debtor for the


unpaid balance of the debt if a foreclosure sale or a
sale of repossessed personal property fails to yield
the full amount of the debt due; also termed a
deficiency decree. (Blacks Law Dictionary)

Recovery of deficiency is
by mere motion for a
deficiency judgment

General rule: Sec. 6 provides for a deficiency


judgment which shall be rendered, on motion, when
the foreclosure sale did not produce proceeds
sufficient to satisfy the judgment.

Extrajudicial Foreclosure
Governed by Act 3135 as
amended
Does not require filing of
an action
Right of redemption

No deficiency judgment
because there is no
judicial proceeding
BUT deficiency can be
recovered
Recovery of deficiency is
by
an
independent
action

Registration [Rule 68, Sec. 7]


A CERTIFIED COPY of the final order confirming the
sale shall be registered in the Registry of Deeds.

In extrajudicial foreclosure, the mortgagee can also


recover by action any deficiency in the mortgage
account which was not realized in the foreclosure
sale. [PNB v. CA (1999)]

If No Right Of
Redemption Exists
The Certificate of Title
in the name of the
mortgagor shall be
cancelled, and a new
one issued in the name
of the purchaser.

A motion for deficiency judgment may be made only


after the sale and after it becomes known that a
deficiency exists. [Governor of the Philippine Islands v.
Torralba Vda. de Santos (1935)]

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If A Right Of Redemption
Exists
The Certificate of Title in
the name of the
mortgagor shall NOT be
cancelled,
but
the
Certificate of Sale and
the order confirming the

UP COLLEGE OF LAW

CIVIL PROCEDURE

sale shall be registered


and
a
brief
memorandum thereof
shall be made by the
Registrar of Deeds upon
the certificate of title
If The Property Is
Redeemed
The
Deed
of
Redemption shall be
registered with the
Registry of Deeds and a
brief
memorandum
thereof shall be made
by the Registrar of
Deeds
on
said
certificate of title.

Equity Of Redemption
where the mortgagee is
the Philippine National
Bank or a bank or
banking
institution.
[Huerta Alba Resort, Inc.
v. CA (2000)]

If The Property Is Not


Redeemed
The FINAL Deed of
Sale executed by the
sheriff in favor of the
purchaser
at
the
foreclosure sale shall
be registered with the
Registry of Deeds.

The mortgagor may


exercise his equity of
redemption in judicial
foreclosure before the
sale is confirmed by the
court
(Raymundo
v
Sunico, 1913; Rosales v
Suba, 2003).
No right of redemption is
recognized in a judicial
foreclosure, except only

Right Of Redemption

Confirmation of the sale of mortgaged real property


vests title in the purchaser including the equity of
redemption, it retroacts to the date of the sale. It
cuts off all the rights or interests of the mortgagor
and of the mortgagee. [Lozame v Amores (1985]].
The motion for the confirmation of the sale requires
a hearing to grant an opportunity to the mortgagor
to show cause why the sale should not be confirmed
[Tiglao v Botones, 90 Phil 275], as by proof of
irregularities therein or of gross inadequacy of the
price. Lack of notice vitiates the confirmation of the
sale.

The Certificate of Title


in the name of the
mortgagor shall be
cancelled and a new
one shall be issued in
the name of the
purchaser.

PARTITION
Partition of property may be:
(a) Extrajudicial by agreement
(b) Judicial compulsory; governed by Rule 69

EQUITY OF REDEMPTION VERSUS RIGHT OF REDEMPTION

Equity Of Redemption
Right of the defendant
mortgagor to extinguish
the mortgage and retain
ownership
of
the
property by paying the
amount fixed in the
decision of the court
within 90 to 120 days
after entry of judgment
or even after the
foreclosure sale but prior
to
its
confirmation.
[Limpin v. Intermediate
Appellate Court (1988)]

BAR OPERATIONS COMMISSION

Right Of Redemption
Right of redemption is
the right granted to the
debtor-mortgagor, his
successor-in-interest or
any judicial creditor of
said debtor-mortgagor
or any person having a
lien in the property
subsequent
to
its
mortgage or deed of
trust, under which the
property is sold, to
redeem the property
within 1 year from the
registration
of
the
sheriffs certificate of
foreclosure sale. [De
Castro v. Intermediate
Appellate Court [1988)]
The right of redemption
in relation to a mortgage
is understood in the
sense of a prerogative to
re-acquire
mortgaged
property
after
registration
of
the
foreclosure sale. It exists
only in the case of the
extrajudicial foreclosure
of the mortgage.

Even if the parties resorted to judicial partition, they


may still make an amicable partition of the property.
[Secs. 2 and 12]
WHO MAY FILE COMPLAINT; WHO SHOULD BE MADE
DEFENDANTS

Filed by person having the right to compel the


partition of real estate, [Sec. 1], or of personal
property, or of both real and personal property. [Sec.
13]
The plaintiff is the person who is supposed to be a
co-owner of the property. The defendants are all the
co-owners, who are indispensable parties.
Sepulveda v. Pelaez (2005): All persons considered as
co-owners and interested in the property to be
partitioned are indispensable parties to the action
and must be impleaded.
Exceptions to the Right to Ask for Partition
(a) When there is a stipulation against it, not
exceeding 10 years [Art. 494, Civil Code]
(b) When partition is prohibited by the donor or
testator for a period not exceeding 20 years [Art.
494, 1083 Civil Code]
(c) When partition is prohibited by law (e.g. ACP,
party wall) [Art. 494, Civil Code]
(d) When the property is not subject to a physical
division and to do so would render it

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unserviceable for the use for which is it intended


[Art. 495 Civil Code] or
(e) When the condition imposed upon voluntary heirs
before they can demand partition has not yet
been fulfilled. [Art. 1084 Civil Code]

BAR OPERATIONS COMMISSION

They must accept all or none. Parties who had


received the property assigned to them are
precluded from subsequently attacking its validity of
any part of it.
Partition may be inferred from circumstances
sufficiently strong to support the presumption. Thus,
after a long possession in severalty, a deed of
partition may be presumed.

MATTERS TO ALLEGE IN THE COMPLAINT FOR PARTITION

Contents of complaint for partition


(a) Nature and extent of the complainants title
(b) Adequate description of the real estate of which
the partition is demanded
(c) All other persons interested in the property must
be impleaded. [Rule 69, Sec. 1]

Recitals in deeds, possession and occupation of land,


improvements made thereon for a long series of
years, and acquiescence for 60 years, furnish
sufficient evidence that there was an actual partition
of land either by deed or by proceedings in the
probate court, which had been lost and were not
recorded.

TWO (2) STAGES IN EVERY ACTION FOR PARTITION

Determination of the propriety of partition


This involves a determination of whether the subject
property is owned in common and whether all the
co-owners are made parties in the case.
The order may also require an accounting of rents
and profits recovered by the defendant. This order of
partition is appealable. [Miranda v. Court of Appeals
(1976)]

Where a tract of land held in common has been


subdivided into lots, and one of the lots has long
been known and called by the name of one of the
tenants in common, and there is no evidence of any
subsequent claim of a tenancy in common, it may
fairly be inferred that there has been a partition and
that such lot was set off to him whose name it bears.

If not appealed, then the parties may partition the


common property in the way they want. If they
cannot agree, then the case goes into the second
stage. However, the order of accounting may in the
meantime be executed. [De Mesa v. CA (1994)]

Venue
Actions for partition should be filed in the RTC of the
province where the property or part thereof is
situated.

The actual partitioning of the subject property


This is also a complete proceeding and the order or
decision is appealable.

If several distinct parcels of land are situated in


different provinces, venue may be laid in the RTC of
any of said provinces. [Pancho v. Villanueva,(1956)]

When there was a prior partition, the fact that the


share of each co-heir has not been technically
described and the title over the whole lot remains
uncancelled does not negate such partition.

ORDER OF PARTITION AND PARTITION BY AGREEMENT

Order of partition
After trial, if the court finds that the plaintiff has the
right to the property subject of partition, it shall issue
an order demanding the partition of the real estate
st
among all the parties in interest. [Sec. 2] (Refers to 1
stage of partition)

There can be no partition again because there is no


more common property. [Noceda v. CA (1999)]
Crucillo v. IAC, 1999: Oral partition of land when the
same is fully consummated is valid and binding upon
the parties thereto.

Partition by Agreement
After the issuance of the order of partition, the
parties will then be asked if they agree to make
partition of the property among themselves

Maglucot-aw et al. v. Maglucot et al. (2000): Parties to


a partition proceeding, who elected to take under
partition, and who took possession of the portion
allotted to them, are estopped to question title to
portion allotted to another party. A person cannot
claim both under and against the same instrument.
In other words, they accepted the lands awarded
them by its provisions, and they cannot accept the
decree in part, and repudiate it in part.

If they agree, proper instruments of conveyance


will be executed to effect the partition.

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BAR OPERATIONS COMMISSION

pays to the other parties such amounts as the


commissioners deem equitable

After the execution of instruments of


conveyance, the court shall confirm the
partition through a final order.

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. [Rule
69, Sec. 5]

The final order of partition and the instruments


of conveyance shall be registered with the
Registry of Deeds where the property is
situated. [Rule 69, Sec. 2]

Commissioners Report
The commissioners shall make a full and
accurate report to the court of all their
proceedings as to the partition, or the
assignment of real estate to one of the parties or
the sale of the same.

If they do not agree, there will be a partition by


commissioners.
A party shall recover from another his just share of
rents and profits received by such other party from
the real estate in question, and the judgment shall
include an allowance for such rents and profits. [Rule
69, Sec. 8]

Upon filing the report, the clerk of court shall


serve copies thereof on all interested parties with
notice that they are allowed 10 days within which
to file objections to the findings of the report, if
they so desire.

A final order decreeing partition and accounting may


be appealed by any party aggrieved thereby. [Rule
69, Sec. 2]
PARTITION BY COMMISSIONERS; APPOINTMENT OF
COMMISSIONERS, COMMISSIONERS REPORT; COURT
ACTION UPON COMMISSIONERS REPORT

No proceeding had before or conducted by the


commissioners shall pass the title to the
property or bind the parties until the court
accepts the commissioners report and rendered
judgment thereon. [Rule 69, Sec. 6]

Appointment of commissioners
If the parties are unable to agree upon the partition,
the court shall appoint not more than 3 competent
and disinterested persons as commissioners to make
the partition, commanding them to set off to the
plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.
[Rule 69, Sec. 3]
Duties of Commissioners [Rule 69, Sec. 4]:
(a) view and examine the real estate, after due notice
to the parties to attend at such view and
examination
(b) hear the parties as to their preference in the
portion of the property to be set apart to them
and the comparative value thereof
(c) set apart the same to the parties in lots or parcels
as will be most advantageous and equitable,
having due regard to the improvements, situation
and quality of the different parts thereof.
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

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PARTITION OF PERSONAL PROPERTY

Upon the expiration of the 10-day period,


or even before the expiration of such
period but after the interested parties filed
their objections to the report/statement of
agreement, the court, upon hearing, may:
(a) ACCEPT the commissioners report and
render JUDGMENT based upon it.
(b) RECOMMIT the report to the
commissioners for further report of
facts if there is cause to do the same
(c) SET ASIDE the report and APPOINT
new commissioners
(d) ACCEPT the report IN PART and
REJECT it IN PART
(e) Make such order and render such
judgment as shall effectuate a fair and
just partition of the real estate or of its
value, if the property is assigned or sold
between the several owners thereof.
[Rule 69, Sec. 7]

The provisions of Rule 69 shall apply to partitions of


estates composed of personal property, or of both
real and personal property, in so far as the same may
be applicable. [Rule 69, Sec. 13]
PRESCRIPTION OF ACTION

The right of action to demand partition does not


prescribe [De Castro v. Echarri (1911)], EXCEPT where
one of the interested parties openly and adversely
occupies the property without recognizing the coownership [Cordova v. Cordova (1958)] in which case,
acquisitive prescription may set in.
If a co-owner repudiates the co-ownership and
makes known such repudiation to the other coowners, then partition is no longer a proper remedy
of the aggrieved co-owner. He should file an accion
reivindicatoria, which is prescriptible. [Roque v. IAC
(1988)]
FORCIBLE ENTRY AND UNLAWFUL DETAINER
(Asked in the 2000 Bar Exam in Relation to a Pending
Action for Specific Performance)

JUDGMENT AND ITS EFFECTS

Contents of Judgment

BAR OPERATIONS COMMISSION

Effects of Judgment

DEFINITIONS AND DISTINCTION

If Actual Partition Is Properly Made

Forcible Entry
(a) Resorted to when a person is deprived of
possession of any land or building by (1) force, (2)
intimidation, (3) strategy, (4) threat, or (5) stealth.
(FISTS)
(b) Must be brought at any time within 1 year after
such unlawful deprivation in the proper MTC
against the person unlawfully depriving him of
possession or against any person or persons
claiming under them.
(c) Action must be for the restitution of possession of
property together with damages and costs. [Rule
70, Sec. 1]
(d) The owners of a property have no authority to use
force and violence to eject alleged usurpers who
were in prior physical possession of it.
(e) They must file the appropriate action in court and
should not take the law into their own hands.
[Laurora v. Sterling Technopark (2003)]

Judgment
shall
state Judgment shall vest
definitely, by metes and in each party to the
bounds
and
adequate action in severalty
description, the particular the portion of the
portion of the real estate real estate assigned
assigned to each party.
to him.
If The Whole Property Is Assigned To One Of The
Parties After Payment
Judgment shall state the fact Judgment shall vest
of such payment and of the in the party making
assignment of the real estate the payment the
to the party making the whole of the real
payment.
estate free from any
interest on the part
of the other parties.
If Property Is Sold And Sale Is Confirmed By The Court
Judgment shall state the Judgment shall vest
name of the purchaser or the real estate in the
purchasers and a definite purchaser(s),
description of the parcels of making
the
real estate sold to each payment(s)
free
purchaser
from the claims of
any parties to the
action.

Unlawful Detainer
(a) Resorted to when a lessor, vendor, vendee, or
other person against whom the possession of any
land or building is unlawfully withheld, after the
expiration or termination of the right to hold
possession by virtue of an express or implied
contract.
(b) May also be brought by the legal representative
or assigns of any such lessor, vendor, vendee, or
other persons.

A certified copy of the judgment shall in either case


be recorded in the registry of deeds of the place in
which the real estate is situated. [Rule 69, Sec. 11]

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(c) Must be brought at any time within 1 year after


the unlawful withholding of possession in the
proper Municipal Trial Court against the person
unlawfully withholding possession or persons
claiming under them.
(d) Action must be for the restitution of possession of
property together with damages and costs. [Rule
70.1]
Forcible Entry
Possession
becomes
unlawful right from the
very start (i.e. from the
time of entry) as he
acquires possession by
FISTS.
The
deprivation
of
physical possession of
land and building is
effected through force,
intimidation, strategy,
threat
or
stealth
(FISTS).
The issue centers on
who was in prior
possession de facto.
Previous demand upon
defendant to vacate not
required.
The plaintiff must allege
and prove that he was in
prior
physical
possession
of
the
premises until deprived
thereof.
1-year period counted
from date of actual
entry on the land.

BAR OPERATIONS COMMISSION

(e) in the proper MTC or MeTC


Nature:
(a) special civil action involving realty;
(b) subject to the Rules on Summary Procedure;
[Rule 70, Sec. 3]
(c) under the original exclusive jurisdiction of first
level courts;
(d) nature of the action is determined by the
allegation of the complaint and the character of
the relief sought; [Abrin v. Campos (1991)]
(e) one co-owner may institute the action.

Unlawful Detainer
Possession was lawful at
first but later becomes
illegal, as when the lease
contract has expired and
the lessee refuses to
vacate the premises
despite demand.
The unlawful withholding
of possession is made
after the expiration or
termination of the right to
hold possession under
any contract, express or
implied.
The issue centers on
whether the defendants
right to possess has
expired or not.
Previous demand to
vacate
required
(jurisdictional).
The plaintiff need not be
in
prior
physical
possession.

Accion Publiciana
A plenary action for recovery of the right to possess
and which should be brought in the proper regional
trial court when the dispossession has lasted for
more than one year.
Accion Reivindicatoria
Also called accion de reivindicacion, it seeks the
recovery of ownership and includes the jus utendi
and the jus fruendi, which must be brought in the
proper regional trial court.
It is thus an action whereby plaintiff alleges
ownership over a parcel of land and seeks recovery of
its full possession. [Javier v. Veridiano (1994)]
HOW TO DETERMINE JURISDICTION IN ACCION PUBLICIANA
AND ACCION REINVINDICATORIA

A/P and A/R are actions involving title to or


possession of real property or an interest therein
(a) RTC has jurisdiction where the assessed value of
the property exceeds P20K or, in MM, P50k
(b) MTC has jurisdiction if the assessed value does
not exceed said amounts

1-year period counted


from date of last demand
or last letter of demand.

WHO MAY INSTITUTE THE ACTION AND WHEN; AGAINST


WHOM THE ACTION MAY BE MAINTAINED

Who may File, When, Against Whom


Who
A person deprived of the possession of any land or
building by force, intimidation, threat, strategy, or
stealth, or a lessor, vendor, vendee, or other person
against whom the possession of any land or building
is unlawfully withheld after the expiration or
termination of the right to hold possession, by virtue
of any contract, express or implied, or the legal
representatives or assigns of any such lessor, vendor,
vendee, or other person

DISTINGUISHED FROM ACCION PUBLICIANA AND ACCION


REINVINDICATORIA

Accion Interdictal
(a) the summary action for forcible entry
(detentacion)
(b) where the defendants possession of property is
illegal ab initio, or
(c) the summary action for unlawful detainer
(desahucio) where the defendants possession
was originally lawful but ceased to be so by the
expiration of his right to possess,
(d) both of which must be brought within one year
from the date of actual entry to the land, in case
of forcible entry, and from the date of last
demand, in case of unlawful detainer,

When
At any time within 1 year after such unlawful
deprivation or withholding of possession in the
proper MTC

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Against Whom
The person or persons unlawfully withholding or
depriving of possession, OR any person or persons
claiming under them [Rule 70, Sec. 1]

BAR OPERATIONS COMMISSION

Jakihaca v. Aquino (1990): Demand upon a tenant


may be oral.
Dakudao v. Consolacion (1983): A person who
occupies the land of another at the latter's tolerance
or permission, without any contract between them is
necessarily bound by an implied promise that he will
vacate upon demand, failing which, an action for
unlawful detainer may be instituted against him.

PLEADINGS ALLOWED

Pleadings must be verified. [Rule 70, Sec. 4]


Allowed pleadings [Rule 70, Sec. 4]:
(a) Complaint
(b) Compulsory Counterclaim pleaded in the answer
(c) Cross-claim pleaded in the answer
(d) Answer

Muoz v. CA (1992): This rule as to tolerance does not


hold true in a case where there was forcible entry at
the start, but the lawful possessor did not attempt to
oust the intruder for over 1 year, and only thereafter
filed forcible entry suit following demand to vacate.

ACTION ON THE COMPLAINT

From the examination of the allegations in the


complaint and such evidence as may be attached
thereto, the court may:
(a) DISMISS the case outright based on the grounds
for dismissal for ordinary civil actions apparent in
the complaint, or
(b) ISSUE SUMMONS, if no ground for dismissal is
found. [Rule 70, Sec. 5]

Refugia v. CA (1996): Tolerance must be presented


right from the start of possession sought to be
recovered to categorize a cause of action as one of
unlawful detainer.
Zobel v. Abreu (1956): When failure to pay rent or
comply with the condition of lease is the ground for
ejectment, plaintiff should give 2 demands (which
may be embodied in 1 demand letter):
(a) demand to pay rental or comply with conditions
of the lease, and if this is not complied with,
(b) demand to vacate

Cases requiring referral to conciliation, where there is


no showing of compliance with such requirement,
shall be dismissed without prejudice, and may be
revived only after that requirement have been
complied with. [Rule 70, Sec. 12]

Yap v. Cruz (1992): Notice and demand to vacate is


required on a lease on a month-to-month period to
render effective the termination of the lease upon
the expiration of the month, and prevent an implied
renewal of the lease.

WHEN DEMAND IS NECESSARY

In cases of unlawful detainer, the action by the lessor


shall be commenced only after:
(a) demand to pay or comply with the conditions of
the lease and to vacate is made upon the lessee,
or
(b) by serving written notice of such demand upon
the person found on the premises, or
(c) by posting such notice on the premises if no
person be found thereon, and the lessee fails to
comply therewith after 15 days in the case of land
or 5 days in the case of buildings. [Rule 70, Sec. 2]

Penas, Jr. v. CA (1994): An alternative demand to


either renew the expired lease contract at a higher
rental rate or vacate is not a definite demand to
vacate and therefore, insufficient basis for the filing
of an action for unlawful detainer.
Uy v. CA (1989): Refusal to collect or accept rentals is
not a defense. There must be consignation.

Exceptions (prior demand not required):


(a) Where purpose of the action is to terminate the
lease by reason of the expiry of its term, and is not
for failure to pay rentals or comply with the terms
of the lease contract. [Arquelada v. Philippine
Veterans Bank (2000) ]
(b) When the purpose of the suit is not for ejectment
but for the enforcement of the terms of the
contract. [Guanson v. Ban (1946)]
(c) When the defendant is not a tenant but a mere
intruder. [id]

Procedure
Filing of complaint.

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After the court has examined the allegations in


the complaint and supporting evidence attached
to the same, the court may:
(a) DISMISS the case outright based on the
grounds for dismissal for ordinary civil actions
apparent in the complaint, or
(b) ISSUE SUMMONS, if no ground for dismissal
is found. [Rule 70, Sec. 5]

BAR OPERATIONS COMMISSION

Not later than 30 days after the last answer is


filed, a PRELIMINARY CONFERENCE shall be
held.
Rule 18 applicable. Effects of failure to appear:
(a) When the plaintiff does not appear
(1) It shall be a cause for dismissal of his
complaint
(2) All cross-claims shall be dismissed
(3) The defendant who appears in the
absence of the plaintiff shall be entitled
to the judgment on his counterclaim
(b) When the defendant does not appear
The plaintiff shall be entitled to judgment
(This is true when there is only one
defendant or when all of the defendants did
not appear)

Cases requiring referral to conciliation, where


there is no showing of compliance with such
requirement, shall be dismissed without prejudice,
and may be revived only after that requirement
have been complied with. [Rule 70, Sec. 12]

General rule: No postponement of


preliminary conference shall be granted.

The defendant shall file his ANSWER and


serve a copy of it to the plaintiff within 10 days
from service of summons. [Rule 70, Sec. 6]

the

Exception: Highly meritorious grounds and


without prejudice to such sanctions as the court
in the exercise of sound discretion may impose
on the movant. [Rule 70, Sec. 8]

Failure of the defendant to answer within the


period provided above shall give power to the
court, motu propio or on motion, to render
judgment as may be warranted by the facts
alleged in the complaint and limited to what is
prayed for therein. [Rule 70, Sec. 7]
Affirmative and negative defenses and crossclaims and compulsory counterclaims not
pleaded in the answer are deemed waived.

The court shall issue an ORDER stating matters


taken up during the preliminary conference
within 5 days after the termination of the same.

Exception: lack of jurisdiction over the subject


matter.

Contents of the Order:


(a) Whether the parties have arrived at an
amicable settlement, and if so, terms thereof;
(b) The stipulations or admissions entered into
by the parties;
(c) Whether, on the basis of the pleadings and
the stipulations and admissions made by the
parties, judgment may be rendered without
the need of further proceedings, in which
event the judgment shall be rendered within
30 days from issuance of the order;
(d) A clear specification of material facts which
remain controverted;
Such other matters intended to expedite the
disposition of the case. [Rule 70, Sec. 9]

Answers to the counterclaims or cross-claims shall


be served and filed within 10 days from service of
the answer in which they are pleaded.

Where there is a defense of tenancy, there must


be a preliminary hearing on the question of
tenancy relations. [Bayog v. Natino (1996)] If there
is a prima facie showing of tenancy, the court
should dismiss the case for lack of jurisdiction
(jurisdiction belongs to the DARAB). [Baranda v.
Padios (1987)]

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BAR OPERATIONS COMMISSION

The parties shall submit affidavits of their


witnesses and other evidence on the factual
issues defined in the order, together with their
position papers setting forth the law and the facts
relied upon by them within 10 days from receipt of
the order. [Rule 70, Sec. 10]

Judgment
General Rule: The court shall render judgment
within 30 days from the date of its receipt of
the affidavits and position papers OR the
expiration of the period for filing the same.
[Rule 70, Sec. 11]

Affidavits required to be submitted shall state


only facts of direct personal knowledge of the
affiants which are admissible in evidence, and
shall show their competence to testify to the
matters stated therein.

Exception: Should the court find it necessary


to clarify certain material facts, it may during
the 30-day period issue an ORDER specifying
the matters to be clarified and require the
parties to submit affidavits or other evidence
on the said matters within 10 days from
receipt of said order. Judgment shall be
rendered within 15 days after receipt of the
last affidavit or the expiration of the period for
filing the same. [Ibid.]

Violation of this requirement may subject the


party or the counsel who submits the same to
disciplinary action and shall be cause to expunge
the inadmissible affidavit or portion thereof from
the records. [Rule 70, Sec. 14]

The court shall not resort to the foregoing


procedure just to gain time for the rendition of
the judgment. [Id.]
If the trial court finds that the allegations of
the complaint are TRUE, it shall render
judgment in favor of the plaintiff for
(a) restitution of the premises,
(b) the just sum due as arrears of rent or
reasonable compensation for the use and
occupation of the premises.
(c) attorneys fees and costs. [Rule 70, Sec. 17]
If the court finds that the allegations of the
plaintiffs are NOT TRUE, it shall render
judgment for the defendant to recover his
costs. [Ibid.]
The judgment rendered in an action for
forcible entry shall be conclusive with respect
to the possession only, and it shall not in any
way affect the title or ownership of the land or
building. Hence, such judgment shall not bar
an action between the same parties with
respect to the title of the land or building.
The judgment or final order shall be
appealable to the appropriate RTC. [Rule 70,
Sec. 18]

Execution of judgment
General Rule: If judgment is rendered against a
defendant, execution shall issue immediately. [Rule
70, Secs. 19 and 21]
Exception: Appeal has been duly perfected by the
defendant and bond has been posted.

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BAR OPERATIONS COMMISSION

(b) An accion publiciana does not suspend an


ejectment suit against the plaintiff in the former
[Ramirez v. Bleza (1981)].
(c) A writ of possession case where ownership is
concededly the principal issue before the
Regional Trial Court does not preclude nor bar
the execution of the judgment in an unlawful
detainer suit where the only issue involved is the
material possession or possession de facto of the
premises [Heirs of F. Guballa, Sr. v CA (1988)].
(d) An action for quieting of title to the property is
not a bar to an ejectment suit involving the same
property [Quimpo v. de la Victoria (1972)].
(e) Suit for specific performance with damages do
not affect ejectment actions (e.g., to compel
renewal of lease contract) [Desamito v. Cuyegkeng
(1966)]; (Asked in the 2000 Bar Exam)
(f) An action for reformation of instrument (e.g. from
deed of absolute sale to one of sale with pacto de
retro ) does not suspend an ejectment suit
between the same parties [Judith v. Abragan
(1975)].
(g) An action for reconveyance of property or accion
reivindicatoria also has no effect on ejectment
suits regarding the same property [Del Rosario v.
Jimenez (1963)].
(h) Neither do suits for annulment of sale, or title, or
document affecting property operate to abate
ejectment actions respecting the same property
[Salinas v. Navarro - annulment of deed of sale
with assumption of mortgage and/or to declare the
same an equitable mortgage (1983); Ang Ping v.
RTC - annulment of sale of title (1987); Caparros v.
C.A. - annulment of title (1989); Dante v. Sison annulment of sale with damages 174 SCRA 517;
Galgala v. Benguet Consolidated, Inc. - annulment
of document (1989)].

Lu v. Siapno (2000): Although immediately


executory, the judge should not order immediate
execution in his decision.
Kaw v. Anunciacion (1995): There must be notice of
the judgment and a motion with notice to the
adverse party.
PRELIMINARY INJUNCTION AND PRELIMINARY MANDATORY
INJUNCTION

Preliminary injunction
The court may grant preliminary injunction in
accordance with Rule 58 to prevent the defendant
from committing further acts of dispossession
against the plaintiff.
A possessor deprived of his possession may move for
a preliminary mandatory injunction within 5 days to
restore him in his possession of the property. The
court then shall decide the motion within 30 days
from the filing thereof. [Rule 70, Sec. 15]
RESOLVING DEFENSE OF OWNERSHIP

When ownership is raised as a defense, the court


may resolved the issue of ownership but only under
these conditions:
(a) When the issue of possession cannot be resolved
without resolving the issue of ownership; and
(b) The issue of ownership shall be resolved only to
determine the issue of possession [Rule 70, Sec.
16].
When the defendant asserts ownership over the
property, the inferior court is not divested of its
jurisdiction [Rural Bank of Sta. Ignacia, Inc v
Dimatulac (2003)]

HOW TO STAY THE IMMEDIATE EXECUTION OF JUDGMENT

General Rule: If judgment is rendered against a


defendant, execution shall issue immediately. [Rule
70, Sec. 19 and 70.21]

The judgment rendered in an action for forcible entry


or unlawful detainer shall be conclusive with respect
to the possession only, and it shall not in any way
affect the title or ownership of the land or building.
Hence, such judgment shall not bar an action
between the same parties with respect to the title of
the land or building. [Rule 70, Sec. 18]

Exception: Appeal has been duly perfected by the


defendant and bond has been posted.
Procedure for staying the execution of judgment:
(a) defendant perfects his appeal in due time;
(b) defendant files a sufficient supersedeas bond
approved by the Municipal Trial Court; and
(c) during the pendency of the appeal, he deposits
with the appellate court the amount of rent due
from time to time under the contract, if any, on or
before the 10th day of each succeeding month.
[Rule 70, Sec. 19]

Matters Not Constituting Prejudicial Question to


Ejectment [Arcal v. Court of Appeals (1998)]
(a) Injunction suits instituted in the RTC by
defendants in ejectment actions in the municipal
trial courts or other courts of the first level
[Nacorda v. Yatco (1996)] do not abate the latter,
and neither do proceedings on consignation of
rentals [Lim Si v. Lim (1956)]

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BUT upon motion of the plaintiff within 10 days from


the perfection of the appeal to the RTC, the court
may still issue a preliminary mandatory injunction to
restore the plaintiff in possession if the court is
satisfied that the defendants appeal is frivolous or
dilatory, or that the appeal of the plaintiff is prima
facie meritorious. [Rule 70, Sec. 20]

BAR OPERATIONS COMMISSION

According to Nature
(a) Civil
(b) Criminal
PURPOSE AND NATURE OF EACH

Direct Contempt (Contempt In Facie Curiae)


A misbehavior committed in the presence of or so
near a court or judge so as to obstruct or interrupt
the proceedings before the same, including:
(a) disrespect toward the court
(b) offensive personalities toward others
(c) refusal to be sworn or to answer as a witness or to
subscribe an affidavit/deposition when lawfully
required to do so.

SUMMARY PROCEDURE, PROHIBITED PLEADINGS

Prohibited pleadings and motions [Rule 70, Sec. 13]:


(a) Motion to dismiss
Exceptions:
(1) Motion to dismiss based on lack of jurisdiction
over the subject matter
(2) Motion to dismiss for failure to comply with
section 12 (referral to Lupon for conciliation)
(b) Motion for a Bill of Particulars
(c) Motion for New Trial
(d) Motion for reconsideration of a judgment
(e) Motion for reopening of trial
(f) Petition for relief from judgment
(g) Motion for extension of time to file pleadings,
affidavits or other papers
(h) Memoranda
(i) Petition for Certiorari, Mandamus or Prohibition
against any interlocutory order issued by the
court
(j) Motion to declare defendant in default
(k) Dilatory motions for postponement
(l) Reply
(m) Third-party complaints
(n) Interventions

It can be punished summarily without hearing. It is


conduct directed against or assailing the authority
and dignity of the court or a judge, or in the doing of
a forbidden act. [Encinas v. National Bookstore
(2005); Rule 71, Sec. 1]
Indirect Contempt (Constructive Contempt)
A misbehavior perpetrated outside of the sitting of
the court. [Patricio v. Suplico (1991)]
Acts of indirect contempt:
(a) Misbehavior of an officer of the court in the
performance of his official duties or in his official
transactions;
(b) Disobedience of or resistance to a lawful writ,
process, order, or judgment of a court, including
the act of a person who, after being dispossessed
or ejected from any real property by the judgment
or process of any court of competent jurisdiction,
enters or attempts to or induces another to enter
into or upon such real property, for the purpose of
executing acts of ownership or possession, or in
any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
(d) Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of the
court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him. [Rule
71, Sec. 3]

CONTEMPT
Definition
Contempt of court
Is a defiance of the authority, justice or dignity of the
court, such conduct as tends to bring the authority
and administration of the law into disrespect of, to
interfere with, or prejudice parties litigant or their
witnesses during litigation.
It is defined as a disobedience to the court by setting
up an opposition to its authority, justice and dignity.
It signifies not only a willful disregard or
disobedience to the courts order but such conduct
as tends to bring the authority of the court and the
administration of law into disrepute or in some
manner to impede the due administration of justice.
[Heirs of Trinidad de Leon Vda. de Ramos v. Court of
Appeals (2004)]

Two Aspects of Contempt Of Court


Civil Contempt is the failure to do something ordered
to be done by a court or a judge for the benefit of the
opposing party therein. [People v. Godoy, 1995];

KINDS OF CONTEMPT

According to the Manner of Commission


(a) Direct
(b) Indirect

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remedial or compensatory in nature; instituted for


the benefit of private party.

BAR OPERATIONS COMMISSION

Radio Phils Network v. Yap (2012):_To be considered


contemptuous, an act must be clearly contrary to or
prohibited by the order of the court or tribunal. A
person cannot, for disobedience, be punished for
contempt unless the act which is forbidden or
required to be done is clearly and exactly defined, so
that there can be no reasonable doubt or uncertainty
as to what specific act or thing is forbidden or
required.

Criminal Contempt is conduct directed against the


authority and dignity of a court or of a judge, as in
unlawfully assailing or discrediting the authority and
dignity of a court or a judge or in doing a forbidden
act [People v. Godoy, 1995]; punitive in nature, thus,
the proceedings are to be conducted in accordance
with the principles and rules applicable to criminal
cases [SEC v. Recto, 1999].

REMEDY AGAINST DIRECT CONTEMPT; PENALTY

SEC v. Recto (1999): The violation of a TRO issued by


the SEC or any quasi-judicial tribunal is criminal
contempt so that acquittal of the respondents is
unappealable.

REMEDY AGAINST INDIRECT CONTEMPT; PENALTY

Crucillo v. IAC (1999): A writ of execution issued by a


court after 5 years from entry of final judgment is
void, and disobedience thereto does not constitute
indirect contempt.

Procedure for Indirect Contempt


[Secs. 4-6]
Who
Court Motu Propio
Initiates
How it is By ORDER or any
initiated
WRITTEN CHARGE
requiring
respondent to show
cause
why
he
should not be held
in contempt.

HOW CONTEMPT PROCEEDINGS ARE COMMENCED

See Annex G.

Panado v. CA (1998): The power to declare a person


in contempt of court serves to protect and preserve
the dignity of the court, the solemnity of the
proceedings therein and the administration of
justice.
But this must be wielded sparingly. For this power
should be exercised on the preservative and not on
the vindictive principle.

Where it is
initiated

Only occasionally should the court invoke its inherent


power in order to retain that respect without which
the administration of justice must falter or fail.

Party

By a VERIFIED
PETITION with
supporting
particulars and
certified
true
copy
of
documents
or
papers involved
and
full
When the contempt iscompliance
directed against
with
an RTC or equivalentthe
or requirements
higher rank:
Same court
for
filing
When the contempt isinitiatory
directed against
a lower court:
pleadings
in
(a) RTC of the place ordinary
where the lower
civil
court is sitting; or actions.
(b) in same lower court subject to
appeal to higher court
If hearing is not immediately conducted,
respondent may be released upon filing
of BOND in the amount fixed by the
court.
Appeal may be taken in proper courts
as in criminal cases.
Execution of judgment shall not be
suspended even by appeal UNLESS
bond is filed conditioned upon the
performance by the respondent of that
judgment should it be decided against
him on appeal.

LandBank v. Listana (2003): Only the court which


rendered the order commanding the doing of a
certain act is vested with the right to determine
whether or not the order has been complied with, or
whether a sufficient reason has been given for noncompliance, and, therefore, whether a contempt has
been committed.

Hearing
and Bail

The power to determine the existence of contempt of


court rests exclusively with the court contemned. No
court is authorized to punish a contempt against
another.

Execution
of
Judgment

Quasi-judicial agencies that have the power to cite


persons for indirect contempt pursuant to Rule 71
can only do so by initiating them in the proper RTC. It
is not within their jurisdiction and competence to
decide the indirect contempt cases. These matters
are still within the province of the RTCs.

ACTS DEEMED PUNISHABLE AS INDIRECT CONTEMPT

Appeal

(a) Misbehavior of an officer of the court in the


performance of his official duties or in his official
transactions;

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CIVIL PROCEDURE

(b) Disobedience of or resistance to a lawful writ,


process, order, or judgment of a court, including
the act of a person who, after being dispossessed
or ejected from any real property by the judgment
or process of any court of competent jurisdiction,
enters or attempts to or induces another to enter
into or upon such real property, for the purpose of
executing acts of ownership or possession, or in
any manner disturbs the possession given to the
person adjudged to be entitled thereto;
(c) Any abuse of or any unlawful interference with
the processes or proceedings of a court not
constituting direct contempt;
(d) Any improper conduct tending, directly or
indirectly, to impede, obstruct or degrade the
administration of justice;
(e) Assuming to be an attorney or an officer of the
court, and acting as such without authority;
(f) Failure to obey a subpoena duly served;
(g) The rescue or attempted rescue, of a person or
property in the custody of an officer by virtue of
an order or process of a court held by him. [Rule
71, Sec. 3]

BAR OPERATIONS COMMISSION

administratrix of the property. The non-payment of


rentals, which is a civil debt, is covered by the
constitutional guarantee against imprisonment.
[Regalado]
CONTEMPT AGAINST QUASI-JUDICIAL BODIES

Rule 71 applies to contempt committed against


persons, entities, bodies or agencies exercising
quasi-judicial functions, or shall have suppletory
effect to such rules as they may have adopted
pursuant to authority granted to them by law to
punish for contempt.
Where to file: RTC of the place wherein the contempt
has been committed. [Rule 71, Sec. 12]
It is not within the jurisdiction and competence of
quasi-judicial bodies to decide indirect contempt
cases. The requirement for a verified petition must
also be complied with (e.g. DARAB has no power to
decide the contempt charge filed before it). [Land
Bank v Listana (2003)]
Rule 71, Sec. 12 confers contempt powers on all
Quasi-Judicial entities or supplements their rules,
unless the applicable law provides otherwise.

WHEN IMPRISONMENT SHALL BE IMPOSED

When the contempt consists in the refusal or


omission to do an act which is yet in the power of the
respondent to perform, he may be imprisoned by
order of the court concerned until he performs it.
[Rule 71, Sec. 8].

Acts or violations against quasi-judicial bodies


punishable as contempt: where a person, without
lawful excuse, fails to appear, make oath, give
testimony or produce documents when required to
do so by the official or body exercising such powers.
Other acts or violations cannot be punished as
contempt unless specifically defined in the governing
law as contempt of court or if it authorizes the quasijudicial body to punish for contempt, and providing
the corresponding penalty. [People v. Mendoza
(1953), 13, Ch. 3, Bk VII, Admin Code of 1987]

The respondent carried the keys to his prison in his


own pocket. [Galvez v. Republic Surety & Insurance
Co., Inc. (1959)]
Only the judge who ordered the confinement of the
person for contempt of court can issue the Order of
Release. [Inoturan v Limsiaco, Jr. (2005)]
Rule 71, Sec. 8 does not apply to tenants who refused
or failed to pay their rentals to the special

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ANNEX A
(1) Service on person associated in
an entity without juridical
personality [Rule 14, Sec. 8]

(2) Service upon minors and


incompetents [Rule 14, Sec. 10]
(3) Service upon prisoner [Rule 14,
Sec. 9]
(4) Service upon domestic private
juridical entity [Rule 14, Sec. 11]

(5) Service upon foreign private


juridical entity [Rule 14, Sec. 12]
(6) Service upon public corporations
[Rule 14, Sec. 13]
(7) Extraterritorial service [Rule 14,
Sec. 15]

(8) Service
upon
a
resident
temporarily
out
of
the
Philippines [Rule 14, Sec. 16]
(9) Service upon a defendant whose
identity or whereabouts are
unknown [Rule 14, Sec. 14]

CIVIL PROCEDURE

BAR OPERATIONS COMMISSION

If sued under the name by which they are commonly known Serve upon
either:
(a) Any/all the defendants;
(b) Person in charge of the office
The service does not bind individually any person whose connection with the
entity was already severed before the service
Serve upon the minor/incompetent and on his legal guardian.
(a) If there is no guardian, plaintiff may apply for the appointment of a
guardian ad litem.
(b) If minor, may serve on his parents.
Serve upon the officer having management of the jail/prison
Serve upon either the:
(1) President
(2) Managing partner
(3) General manager
(4) Corporate secretary
(5) Treasurer
(6) In-house counsel
Serve upon the resident agent;
Otherwise, upon either:
(1) Government official designated by law;
(2) Any officer or agent of the corporation within the Philippines
If the defendant is the Republic of the Philippines Serve upon the OSG
If the defendant is a province/city/municipality or like public corporations
Serve upon the executive head or other officers as the law/court may direct
Requisites: (Asked in the 1997 and 2008 Bar Exam)
(1) Defendant does not reside or is not found in the Philippines;
(2) Action either:
(a) Affects the plaintiffs personal status;
(b) Relates to or the subject matter of which is property within the
Philippines in which defendant has a lien/interest;
(c) Demands a relief which consists wholly/partially in excluding the
defendant from any interest in any property within the Philippines;
(d) Has defendants property in the Philippines, attached.
Modes of service:
(1) With leave of court, serve outside the Philippines by personal service; or
(2) With leave of court, serve by publication in a newspaper of general
circulation, in which case copy of the summons and order of the court
must also be sent by registered mail to the defendants last known
address;
(3) Any other manner the court deems sufficient
The court order granting extraterritorial service shall specify a period of at
least 60 days within which the defendant must answer.
With leave of court, may serve extraterritorially
With leave of court, by publication in a newspaper of general circulation

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CIVIL PROCEDURE

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ANNEX B
Subpoena Duces Tecum

OrdeffFor Production or Inspection

Nature
Process requiring a person to bring with him any Order any party to produce and permit the inspection
books, documents, documents, or other things under and copying or photographing, by or on behalf of the
his control or possession.
moving party,
(a) of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible
things, not privileged,
(b) which constitute or contain evidence material to any
matter involved in the action and which are in his
possession, custody or control, or
Order any party to permit entry upon designated land
or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or
photographing the property or any designated relevant
object or operation thereon.
To whom directed
To any person
Only to a party
When it may be asked
Only during trial
Before and/or during trial
Issued by whom
Issued by a court before whom the witness is required Issued by the court where the action is pending
to attend, or court where the deposition is to be taken
or clerk or body authorized by law or any justice of the
Supreme Court or CA in any case or investigation
pending within the Philippines
When issued
Issued upon request to the clerk (no notice)
Issued upon motion (application with notice to the other
party)
W/N it is necessary to show good cause
NO
YES
Grounds for quashal
unreasonable, oppressive, irrelevant, or
No good cause shown
the person in whose behalf the subpoena is issued
fails to advance the reasonable costs of the
production thereof
Consequence of disobedience
Constitutes contempt of the court from which the See Rule 29, Sec. 3
subpoena is issued

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ANNEX C
Provision Highlights

Applicability

Section 1. REFUSAL TO ANSWER. If a party or other deponent refuses to


answer any question upon oral examination
(a) the examination may be completed on other matters or
(b) adjourned as the proponent of the question may prefer.
The proponent may thereafter apply (i.e., by MOTION FOR THE
ISSUANCE OF AN ORDER TO COMPEL AN ANSWER) to the proper court
of the place where the deposition is being taken, for an order to compel
an answer.

PARTY OR DEPONENT /WITNESS IN


(a) RULE 23 (depositions de bene
esse),
(b) RULE 24 (depositions in perpetua
rei memoriam)
(c) RULE 25. INTERROGATORIES TO
PARTIES

IF THE APPLICATION IS GRANTED


(a) the court shall require the refusing party or deponent to answer the
question or interrogatory, and
(b) if it also finds that the refusal to answer was without substantial
justification, it may require the refusing party or deponent or the
counsel advising the refusal, or both of them, to pay the proponent
the amount of the reasonable expenses incurred in obtaining the
order, including attorney's fees.
IF THE APPLICATION IS DENIED and the court finds that it was filed
without substantial justification, the court may require the proponent or
the counsel advising the filing of the application, or both of them, to pay
to the refusing party or deponent the amount of the reasonable expenses
incurred in opposing the application, including attorney's fees.
Section 2. Contempt of court. If a party or other witness
(a) refuses to BE SWORN OR
(b) refuses to answer any question
after being directed to do so by the court of the place in which the
deposition is being taken, the refusal may be considered a contempt of
that court.
Section 3. Other consequences. THE AGGRIEVED PARTY MAY APPLY
FOR:
An order
(a) that the matters regarding which the questions were asked, or the
character or description of the thing or land, or the contents of the
paper, or the physical or mental condition of the party,
(b) or any other designated facts shall be taken to be established for the
purposes of the action in accordance with the claim of the party
obtaining the order;
An order
(a) refusing to allow the disobedient party to support or oppose
designated claims or defenses or
(b) prohibiting him from introducing in evidence designated documents
or things or items of testimony, or
(c) from introducing evidence of physical or mental condition;
An order
(a) striking out pleadings or parts thereof, or
(b) staying further proceedings until the order is obeyed, or
(c) dismissing the action or proceeding or any part thereof, or
(d) rendering a judgment by default against the disobedient party; and
IN LIEU OF ANY OF THE FOREGOING ORDERS OR IN ADDITION
THERETO, an order directing the arrest of any party or agent of a party
for disobeying any of such orders except an order to submit to a physical
or mental examination.
PAGE 146

PARTY OR WITNESS IN
(a) RULE 23 (depositions de bene
esse),
(b) RULE 24 (depositions in perpetuam
rei memoriam)
PARTY or an OFFICER OR MANAGING
AGENT OF A PARTY in RULE 23, 24,
25 who refuses to obey an order made
under RULE 29 Section 1
PARTY who refuses to obey an order
under RULE 27 to produce any
document or other thing for inspection,
or to permit entry upon land
PARTY who refuses to obey an order
made under RULE 28 requiring him to
take a physical examination
(APPLIES TO all modes of discovery
except RULE 26 ON REQUEST FOR
ADMISSION BY AN ADVERSE PARTY)

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Provision Highlights

Applicability

Section 4. Expenses on refusal to admit.


If a party after being served with a request under Rule 26
(a) refuses to admit the genuineness of any document or the truth of any
matter of fact and
(b) serves a sworn denial thereof, and
(c) if the party requesting the admissions thereafter proves the
genuineness of such document or the truth of any such matter of fact
(d) he may apply to the court for an order requiring the other party to pay
him the reasonable expenses incurred in making such proof, including
attorney's fees.

PARTY SERVED WITH A REQUEST


RULE 26
ADMISSION BY AN
ADVERSE PARTY

Unless the court finds THAT THERE WERE GOOD REASONS FOR THE
DENIAL OR THAT ADMISSIONS SOUGHT WERE OF NO SUBSTANTIAL
IMPORTANCE, SUCH ORDER SHALL BE ISSUED.
SECTION 5. FAILURE OF PARTY TO ATTEND OR SERVE ANSWERS.
If a party or an officer or managing agent of a party
wilfully fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or
fails to serve answers to interrogatories submitted under Rule 25 after
proper service of such interrogatories,
The court on motion and notice, may
strike out all or any part of any pleading of that party, or
dismiss the action or proceeding or any part thereof, or
enter a judgment by default against that party,
and in its discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees
SECTION 6. EXPENSES AGAINST THE REPUBLIC OF THE PHILIPPINES.
Expenses and attorney's fees are not to be imposed upon the Republic of
the Philippines under this Rule

PAGE 147

PARTY OR AN OFFICER OR
MANAGING AGENT OF A PARTY
RULE 23 (depositions de bene esse),
RULE 24 (depositions in perpetuam rei
memoriam)
RULE 25 INTERROGATORIES TO
PARTIES

Applies to all provisions in Rule 29


requiring a noncompliant party or
witness (who represents the Republic
in an official capacity) to pay.

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ANNEX D
JUDGMENT OR FINAL ORDER (order
that disposes of the action or proceeding)

If no appeal has been perfected, or the


period of appeal has expired

Prevailing Party applies (by motion) for a


writ of execution, whic h is granted by the
judge since it is a matter of right

If an appeal has been perfected and duly


resolv ed, there are two ways by whic h
execution can be carried out

Prevailing party files a


motion in the court of
origin,
submitting
therewith certified true
copies of the judgment or
judgments or final order
or orders sought to be
enforced and of the entry
thereof, with notice to
the adverse party1.

PAGE 148

The appellate court


may, on motion in the
same case, when the
interest of justice so
requires, direct the
court of origin to issue
the writ of execution.

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ANNEX E

Situation 1: Trial Court still has


jurisdiction over the case and is in
possession of either the original record
or the record on appeal, as the case
may be.

Situation 2: Trial court has lost


jurisdiction

In Situation1, prevailing party files a MOTION WITH


NOTICE TO THE ADVERSE PARTY in the Trial
Court. In Situation2, prevailing party files the motion
for execution pending appeal in the appellate court.

Discretionary execution may be


granted only for GOOD REASONS to
be stated in a SPECIAL ORDER.

NOTE HOWEVER that Discretionary execution may be stayed upon approval by the proper
court of a SUFFICIENT SUPERSEDEAS BOND FILED by the party against whom it is
directed, conditioned upon the performance of the judgment or order allowed to be executed
in case it shall be finally sustained in whole or in part. The bond thus given m ay be
proceeded against on motion with notice to the surety

IN CASE the judgment w hic h was executed pending appeal is reversed


totally or partially, or annulled, on appeal or otherwise, the trial court may, on
motion, issue such orders of restitution or reparation of dam ages as
equity and justice m ay w arrant under the circumstances

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ANNEX F
Certiorari
(Asked In 2000 And 2006 Bar
Exams)
(a) When any tribunal, board or
officer exercising judicial or
quasi-judicial functions has
acted:
(1) without or in excess of its
jurisdiction; or
(2) with grave abuse of discretion
amounting to lack or excess
1
of its or his jurisdiction
(b) AND there is no appeal, or any
plain, speedy, and adequate
2
remedy in the ordinary course of
law. (Rule 65, Sec. 1)

To correct an act performed by the


respondent
Discretionary acts
Aggrieved person
Those exercising judicial or quasijudicial functions
(a) Verified
(b) alleging the facts with certainty
(c) PRAYER: that judgment be
rendered annulling or modifying
the proceedings of such tribunal,
etc., and granting such incidental
reliefs as law and justice may
require.
(d) accompanied by a certified true
copy of the subject judgment,
etc., copies of all relevant
pleadings and documents, and a
certification
of
non-forum
shopping.

Prohibition
Grounds
(a) When the proceedings of any
tribunal, corporation, board,
officer or person, whether
exercising
judicial,
quasijudicial, or ministerial functions,
are
(1) without or in excess of its or
his jurisdiction; or
(2) with grave abuse of discretion
amounting to lack or excess
of its or his jurisdiction
(b) AND there is no appeal or any
other plain, speedy, and
adequate remedy in the ordinary
course of law. (Rule 65, Sec. 2)
Purpose
To prevent the commission or
carrying out of an act
Act sought to be controlled
Discretionary and ministerial acts
Petitioner
Aggrieved person
3
Respondent
Those exercising judicial and/or
non-judicial functions
Form of petition
(a) verified
(b) alleging the facts with certainty
(c) PRAYER: that judgment be
rendered commanding the
respondent to desist from
further proceedings in the action
or matter specified therein, or
otherwise
granting
such
incidental reliefs as law and
justice may require.
(d) accompanied by a certified true
copy of the subject judgment,
etc., copies of all relevant
pleadings and documents, and a
certification
of
non-forum
shopping.

Mandamus
(Asked In The 2006 Bar Exam)
(a) When any tribunal, corporation,
board, officer or person
(1) unlawfully
neglects
the
performance of an act which
the law specifically enjoins as
a duty resulting from an
office, trust or station; or
(2) unlawfully excludes another
from the use and enjoyment
of a right or office to which
such other is entitled
(b) AND there is no other plain,
speedy and adequate remedy in
the ordinary course of law. (Rule
65, Sec. 3)
To compel the performance of the
act desired
Ministerial acts
Aggrieved person
Those exercising judicial and/or
non-judicial functions
(a) verified
(b) alleging the facts with certainty
(c) PRAYER: that judgment be
rendered
commanding
the
respondent, immediately or
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
to pay the damages sustained by
the petitioner by reason of the
wrongful acts of the respondent.
(d) contains a certificate of nonforum shopping.

Without jurisdiction
Excess of jurisdiction
Grave abuse of discretion

If respondent does not have the legal power to determine the case
If respondent has the legal power to determine the case but oversteps such power
If respondent has the legal power to determine the case but acts in a capricious, whimsical, arbitrary or
despotic manner in the exercise of his judgment

A remedy is plain, speedy and adequate if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the
lower court or agency. [Silvestre v. Torres (1946)]
3
When the petition filed relates to the acts or omissions of a judge, court, quasi-judicial agency, tribunal, corporation, board, officer or person,
the petitioner shall join, as private respondent or respondents with such public respondent or respondents, the person or persons interested in
sustaining the proceedings in the court; and it shall be the duty of such private respondents to appear and defend, both in his or their own
behalf and in behalf of the public respondent or respondents affected by the proceedings. xxx
If the case is elevated to a higher court by either party, the public respondents shall be included therein as nominal parties. However, unless
otherwise specifically directed by the court, they shall not appear or participate in the proceedings therein. [Rule 65, Sec. 5]
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ANNEX G
Direct Contempt

Indirect Contempt

How Committed
Can be committed only in the presence of or so near a Can be committed anywhere as long as the acts
court or judge.
mentioned in Sec. 3 are done.
Nature of Proceedings
The person guilty of misbehavior is summarily adjudged The person guilty of misbehavior may be punished
by the court against which the contempt was only after charge in writing has been filed, and an
committed at the very moment of the perpetration.
opportunity given to the accused to be heard by himself
[Rule 71, Sec. 1]
or counsel [Rule 71, Sec. 3]
Punishment
If the contempt is directed against an RTC, a court of equivalent or higher rank:
FINE = not exceeding P2,000; or
FINE = not exceeding P30,000; or
IMPRISONMENT = not exceeding 10 days; or both
IMPRISONMENT = not exceeding 6 months; or both
If the contempt is directed against a lower court:
FINE = not exceeding P200; or
FINE = not exceeding P5,000; or
IMPRISONMENT = not exceeding 1 day; or both
IMPRISONMENT = not exceeding 1 month; or both
[Rule 71, Sec. 1]
[Rule 71, Sec. 7]
How proceedings commenced
Summarily adjudged by the court against which the (a) By the court motu propio thru an ORDER or any
contempt is directed and punished there and then.
formal charge
[Rule 71, Sec. 1]
(b) In all other cases, by a VERIFIED PETITION.
(If the contempt charges arose out of or are related to
a principal action pending in the court, the petition for
contempt shall allege that fact, but said petition shall
be docketed, heard and decided separately, unless the
court in its discretion orders the consolidation of the
contempt charge and the principal action for joint
hearing and decision.)
[Rule 71, Sec. 4]
Remedy
No appeal, but subject to certiorari or prohibition.
May be appealed to the proper court as in criminal
[Rule 71, Sec. 2]
cases, but execution shall not be suspended until
BOND is filed. [Rule 71, Sec. 11]

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EVIDENCE

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General Matters
Jurisdiction Over the
Subject Matter

DISTINGUISH JURISDICTION OVER SUBJECT


MATTER FROM JURISDICTION OVER PERSON
OF THE ACCUSED

Conferred by law;
May be acquired by
Can never be acquired consent of the accused or
solely by consent of the by waiver of objections.
accused.

JURISDICTION OVER SUBJECT MATTER

The right to act or the power and authority to hear


and determine a cause [Gomez v. Montalban (548
SCRA 693)]

Right to object is never


waived
The absence of courts
jurisdiction
over
the
subject matter may be
raised at any stage of the
proceeding.

General Rule: It is conferred by law and


determined by the allegations of the complaint
[People v. Catalan (2012)]
Principle of adherence of jurisdiction/continuing
jurisdiction- Once a court acquires jurisdiction over a
controversy, it shall continue to exercise such
jurisdiction until the final determination of the case.
[Palana v. People (2007)]

Right to object may be


waived
Failure of the accused to
make objection in time
would constitute a waiver
of the objection.

REQUISITES FOR EXERCISE OF CRIMINAL


JURISDICTION
(1) SUBJECT MATTER JURISDICTION - WON the
court has jurisdiction over the offense by virtue of
the imposable penalty and its nature;

Exception: Where the succeeding statute expressly


provides, or is construed that it is intended to operate
to actions pending before its enactment [Palana v.
People (2007)]

(2) Jurisdiction over the PERSON of the accused;


(3) TERRITORIAL JURISDICTION - WON the action
has been filed within the TERRITORIAL
JURIDICTION of the court:

JURISDICTION OVER THE PERSON OF THE ACCUSED

Acquired either by [Antiporda vs Garchitorena (1999),


citing Arula vs Espino (1969)]:
(1) ARREST of accused; or
(2) VOLUNTARY APPEARANCE/SUBMISSION of
the accused to the jurisdiction of the court
Voluntary appearance of the accused
accomplished by:
(a) By filing pleadings seeking affirmative relief

Jurisdiction Over The


Person of the Accused

Refers to VENUE (see below) or the place where


the case is to be tried. The action should be
instituted and tried in the municipality or territory
where offense has been committed or where any
one of the essential ingredients thereof took
place. [Sec 15(a), Rule 110]

is

For transitory/ continuing offenses, the courts of


the territories where the essential ingredients of
the crime took place have concurrent jurisdiction.
The first court taking cognizance of the case will
exclude the others [People vs Grospe (1988)].

Exception: Special appearance to challenge the


jurisdiction of the court over the person is not
voluntary submission [Garcia v. Sandiganbayan
(2009)];
(b) By giving Bail
JURISDICTION OF CRIMINAL COURTS
CRIMINAL JURISDICTION OF COURTS

MTC/MeTC/MCTC

RTC

SANDIGANBAYAN

(1) Exclusive original jurisdiction over


all violations of city/municipal
ordinances committed within their
respective territorial jurisdiction.
[Sec. 32(1), BP 129]
(2) Exclusive original jurisdiction over
all offenses punishable with

(1) Exclusive original jurisdiction in


all criminal cases not within the
exclusive jurisdiction of any
court/tribunal/body. [Sec. 20, BP
129]
(2) Exclusive appellate jurisdiction
over all cases decided by the

(1) Exclusive original jurisdiction


in those cases expressly
enumerated in PD 1606, as
amended by RA 8249:
violations of RA 3019, RA 1379,
and Chapter II, Section 2, Title
VII, Book II of the RPC

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CRIMINAL PROCEDURE

MTC/MeTC/MCTC

RTC

imprisonment not exceeding 6


years irrespective of the amount of
fine, and regardless of other
imposable accessory or other
penalties, including the civil
liability arising from such offenses
or predicated thereon, irrespective
of kind, nature, value, or amount
thereof. [Sec. 32(2), BP 129]
(3) Exclusive original jurisdiction over
offenses involving damage to
property
through
criminal
negligence they shall have
exclusive original jurisdiction
thereof. [Sec. 32(2), BP 129; RA
7691]

MTC
within
its
territorial
jurisdiction [Sec. 22, BP 129]
(3) Criminal cases where one or
more of the accused is below 18
years of age but not less than 15
years, or where one or more of
the victims is a minor at the time
of the commission of the offense
[RA 9344]
(4) Cases against minors cognizable
under the Dangerous Drugs Act,
as amended [RA 8369, Family
Courts Act of 1997]
(5) Violations of Republic Act No.
7610, the Child Abuse Act.
(6) Cases of domestic violence
against women and children. If
an act committed against women
and children likewise constitute a
criminal offense, the accused or
batterer shall be subject to
criminal proceedings and the
corresponding penalties. [RA
8369, Family Courts Act of 1997]
(7) Violations of
intellectual
property rights [A.M. No. 03-0303-SC (2003); RA 8293]
(8) Money Laundering Cases [RA
9160]
Exception: those committed by
public officers and private
persons who are in conspiracy
with such public officers shall be
under the jurisdiction of the
Sandiganbayan

Exception (for Nos. 1-3): Cases falling


within the exclusive jurisdiction of the
RTC and of the Sandiganbayan
(4) Cases classified under the Revised
Rules on Summary Procedure: [SC
Resolution, October 15, 1991]
(a) Violations of traffic laws/rules/
regulations;
(b) Violations of rental law;
(c) Cases where the penalty
prescribed by law for the
offense
charged
is
imprisonment not exceeding 6
months, or a fine not exceeding
P1,000, or both, irrespective of
other imposable penalties,
accessory or otherwise, or of
the civil liability arising
therefrom
(d) Offenses involving damage to
property through criminal
negligence(imposable
fine
does not exceed P10,000)
(5) Violations of BP 22 [A.M. No. 0011-01-SC (2003)]
(6) Special jurisdiction to decide on
applications for bail in criminal
cases in the absence of all RTC
judges in a province or city [Sec.
35, BP 129]

BAR OPERATIONS COMMISSION

SANDIGANBAYAN
Officials enumerated are the ff:
(a) Officials of the executive
branch
occupying
the
positions of regional director
and
higher,
otherwise
classified as Grade '27' and
higher, of the Compensation
and Position Classification
Act of 1989 (RA 6758)
(b) Members of Congress and
officials thereof classified as
Grade'27'and up under the
Compensation and Position
Classification Act of 1989
(c) Members of the judiciary
without prejudice to the
provisions of the Constitution
(d) Chairmen and members of
Constitutional Commissions,
without prejudice to the
provisions of the Constitution
(e) All other national and local
officials classified as Grade
27
(2) Other offenses or felonies
whether simple or complexed
with other crimes committed
by public officials and
employees in relation to their
office
Requisites:
(a) Accused is any one of the
public officials enumerated
in subsection (a) of Sec. 4 of
RA 8249, grade 27 or higher
(b) Accused commits any other
offense or felony, than those
specified in subsec. (a),
whether
simple
or
complexed
with
other
crimes
(c) The offender commits such
other offense or felony in
relation to his office
(3) Cases filed in pursuant to and
in connection with EO 1, 2, 14,
14-A, issued in 1986

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CRIMINAL PROCEDURE

BAR OPERATIONS COMMISSION

General rule: Ordinary courts will have jurisdiction


over cases involving members of the armed forces,
and other persons subject to military law, regardless
of who the co-accused or victims are.

In People v. Pangilinan, G.R No. 152662, June 13,


2012, the Court made a pronouncement to the effect
that there is no more distinction between cases
under the RPC and those covered by special laws
with respect to the interruption of the period of
prescription.

Exception: When the offense is service-oriented, then


it will be tried by the court martial. PROVIDED: the
President may, in the interest of justice, order/direct
at any time before arraignment that any such
crimes/offenses be tried by the proper civil courts

WHO MAY FILE THEM, CRIMES THAT CANNOT


BE PROSECUTED DE OFFICIO (BAR 1990, 2000)

MILITARY COURTS

CASES THAT CANNOT BE PROSECUTED DE OFICIO

(1) Adultery/concubinage [Sec. 5, Rule 110]


(2) Seduction, abduction, acts of lasciviousness
(3) Defamation which consists of imputation of any
of the foregoing offenses.

Prosecution of Offenses
CRIMINAL ACTIONS, HOW INSTITUTED (BAR
1999)

WHO MAY FILE A COMPLAINT?

(1) Adultery and concubinage The offended spouse.


Both guilty parties should be included if both are
alive. [Sec 5, Rule 110] However, prosecution will not
prosper if the offended party consented to the
offense.
(2) Seduction, abduction and acts of lasciviousness
The offended party or her parents, grandparents, or
guardian, nor, in any case, if the offender has been
expressly pardoned by them. [Sec 5, Rule 110]
General rule: If the offended party is a
MINOR, he or she has the right to initiate
the prosecution of such offenses
independently
of
his/her
parents,
grandparents, or guardians
Exceptions: If the minor is:
(a) Incompetent, or
(b) Incapable of doing so
(3) Oral defamation can only be brought upon
instance and upon complaint of the offended party.

IN GENERAL

A criminal action is commenced by the filing of a


complaint or information. The complaint may be
filed either with the MTC or with a public prosecutor
for purposes of conducting a preliminary
investigation.
INSTITUTION AND COMMENCEMENT OF ACTIONS

The criminal action is commenced when the


complaint or information is filed in court
For offenses which require a preliminary
investigation (Section 1 of Rule 112: where the penalty
prescribed by law is at least four years, two months
and one day), the criminal action is instituted by
filing the complaint with the appropriate officer for
PI. [Sec. 1(a), Rule 110]
For all other offenses, or in offenses cognizable by
inferior courts (Municipal Trial Courts or Municipal
Circuit Trial Courts), the complaint or information is
filed directly with said courts or the complaint is filed
with the fiscal. [Sec. 1(b), Rule 110]

EFFECT OF:
DEATH OF OFFENDED PARTY

Death after filing the complaint would not deprive


the court of the jurisdiction.
The State shall initiate the action on behalf of the
offended party in case of his death/incapacity AND
he has no known parents/grandparents/ guardians.

In Metropolitan Manila and other chartered cities,


the complaint shall be filed with the office of the
public prosecutor unless otherwise provided in their
charters. [Sec. 1(b), Rule 110]

In adultery/concubinage, death does not extinguish


the criminal liability of accused.

EFFECT OF THE INSTITUTION OF CRIMINAL ACTION ON THE


PRESCRIPTIVE PERIOD (BAR 1993)

DESISTANCE BY OFFENDED PARTY

It does not bar the People of the Philippines from


prosecuting the criminal action, but it operates as a
waiver of the right to pursue civil indemnity.

General Rule: The institution of a criminal action shall


interrupt the running of the period of prescription of
the offense charged unless otherwise provided in
special laws. [Sec. 1, Rule 110]

PARDON BY OFFENDED PARTY

(a) In rape, seduction, abduction and acts of


lasciviousness of a minor The pardon will be
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CRIMINAL PROCEDURE

effective if given by both parents and the


offended party.
(b) In seduction, abduction and acts of lasciviousness

(4) The acts of the officer are without or in excess of


authority;
(5) The prosecutions is under an invalid
law/ordinance/regulation;
(6) When double jeopardy is clearly apparent;
(7) The court has no jurisdiction over the offense;
(8) A case of persecution rather than prosecution;
(9) The charges are manifestly false and motivated
by the lust for vengeance;
(10) There is clearly no prima facie case against the
accused and MTQ on that ground has been
denied; [Samson vs Guingona (2000)]
(11) Preliminary injunction has been issued by the SC
to prevent the threatened unlawful arrest of
petitioners.

Express pardon by the offended party, parents,


grandparents or guardian will prevent
prosecution. [Rule 110, Sec. 5]
(c) The parents/grandparents/guardian of the
offended minor (in that order) cannot extend a
valid pardon without conformity of the offended
party, even if the latter is a minor. [US v. Luna
(1902)]
(d) If the offended woman is of age and not
incapacitated, only she can extend a valid
pardon which would absolve the offender.

CONTROL OF PROSECUTION
General Rule: All criminal actions commenced by a
complaint or information shall be prosecuted under
the DIRECTION and CONTROL of the prosecutor.
[Sec. 5, Rule 110]

General rule: Pardon must be made before the filing


of the criminal complaint in court.
Exception: In rape, where marriage between the
offender and the offended party would be effective
as pardon even when the offender has already
commenced serving his sentence.

Exception: In case of heavy work schedule of the


public prosecutor OR in the event of lack of public
prosecutors,

If there is more than one accused, the pardon must


be extended to all offenders.

The private prosecutor may be authorized in writing


by the Chief of the Prosecution Office or the Regional
State Prosecutor to prosecute the case SUBJECT to
the approval of the court.

Pardon or desistance extinguishes civil liability.


Pardon or express condonation has the effect of
waiving the civil liability with regard to the interest of
the injured party. Liability arising from an offense is
extinguished in the same manner as other
obligations.
Pardon

However, the criminal action is still prosecuted under


the direction and control of the public prosecutor.
[Riano]
EXTENT OF THE PROSECUTORS CONTROL
PRIOR TO THE FILING OF THE CASE

Consent

Refers to past acts

Refers to future acts

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

BAR OPERATIONS COMMISSION

Matters within the control and supervision of the


prosecutor:
(1) What case to file
(2) Whom to prosecute
(3) Manner of prosecution
(4) Right to withdraw information before
arraignment even without notice and hearing
AFTER A CASE IS FILED

CRIMINAL ACTIONS, WHEN ENJOINED


General rule: The prosecution of a criminal case may
not be enjoined by prohibition/injunction. [Domingo
v. Sandiganbayan, 1986]

It is the prosecutors duty to proceed with the


presentation of his evidence.
The prosecutor has no power to dismiss the action
without the courts consent.

Exceptions (Bar 1999):


(1) To afford protection to the constitutional rights of
the accused;
(2) Necessary for the orderly administration for
justice or to avoid multiplicity of actions;
(3) There is a prejudicial question which is sub judice;

LIMITATIONS OF CONTROL BY THE COURT

(1) Prosecution is entitled to notice of hearing


(2) Court must await for petition for review
(maximum of 60 days)
(3) Prosecutions stand to maintain prosecution
should be respected by the court

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CRIMINAL PROCEDURE

(4) The court must make its own independent


assessment of evidence in granting or dismissing
motion to dismiss. Otherwise, the judgment is
void.

BAR OPERATIONS COMMISSION

information before arraignment, otherwise he is


deemed to have waived his objections to such a
defect. [People v. Teodoro (2009)]
DESIGNATION OF OFFENSE
Aver the acts and omissions constituting the offense.
Specify
the
qualifying
and
aggravating
circumstances [Sec. 8 and 9,Rule 110)](Bar 2001)

EFFECTS OF THE LACK OF INTERVENTION BY THE FISCAL IN


THE TRIAL

Although the private prosecutor had previously been


authorized by the special counsel to present the
evidence for the prosecution, in view of the absence
of the City Fiscal at the hearing, it cannot be said
that the prosecution of the case was under the
control of the City Fiscal. It follows that the evidence
presented by the private prosecutor at said hearing
could not be considered as evidence for the plaintiff
[People v. Beriales, (1976)].

This is a procedural requirement to safeguard the


right of the accused to be informed of the nature and
cause of the accusation against him.

SUFFICIENCY OF COMPLAINT OR INFORMATION

Specific acts of accused do not have to be described


in detail in the information, as it is enough that the
offense be described with sufficient particularity to
make sure the accused fully understands what he is
being charged with. [Guy v. People (2009)]

COMPLAINT DEFINED

CAUSE OF THE ACCUSATION

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. [Sec. 3, Rule 110]

WHAT TO ALLEGE

Where the law prescribes exceptions


General rule: Where the law alleged to have been
violated prohibits generally acts therein defined AND
is intended to apply to all persons indiscriminately,
BUT prescribes certain limitations/exceptions from
its violation, the indictment/information is sufficient
if it alleges facts which the offender did as
constituting a violation of law, without explicitly
negating the exception, as the exception is a matter
of defense which the accused has to prove.

INFORMATION DEFINED

An accusation in writing, charging a person with an


offense, subscribed by the prosecutor and filed with
the court. [Sec. 4, Rule 110; People vs Cinco (2009)]
FORM & SUBSTANCE

Sufficiency of complaint or information


A complaint or information is sufficient if it states:
(1) the name of the accused;
(2) the designation of the offense given by the
statute;
(3) the acts or omissions complained of as
constituting the offense;
(4) the name of the offended party;
(5) the approximate date of the commission of the
offense; and
(6) the place where the offense was committed. [Sec.
6, Rule 110]

Exception: Where the statute alleged to have been


violated applies only to specific classes of persons
and special conditions and the exemptions from its
violation are so incorporated in the language
defining the crime that the ingredients of the offense
cannot be accurately and clearly set forth if the
exemption is omitted, then the indictment must
show that the accused does not fall within the
exemptions.
Qualifying and aggravating circumstances must be
alleged; otherwise, they are not to be considered even
if proven during the trial. [Sec. 8, Rule 110]

Test for sufficiency of the complaint or information is


whether the crime is described in intelligible terms
with such particularity as to apprise the accused with
reasonable certainty of the offense charged. [Lazarte,
Jr. vs Sandiganbayan (2009)]

Where exceptions form as ingredients of offense


If the exception is needed for defining the offense,
then the information should negate the exception.
[US vs Chan Toco (1908)]

An accused is deemed to have waived his right to


assail the sufficiency of the information when he
voluntarily entered a plea when arraigned and
participated in the trial. [Frias v. People (2007)]

Where complex crime is charged


Where what is alleged in the information is a
complex crime and the evidence fails to support the
charge as to one of the component offenses, the

Consequently, objections as to form cannot be made


for the first time on appeal. The accused should have
moved for a bill of particulars or for quashal of
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CRIMINAL PROCEDURE

defendant can only be convicted of the offense


proven.

AMENDMENT
OR
SUBSTITUTION
OF
COMPLAINT OR INFORMATION [SEC. 14, RULE
110] (BAR 2001, 2002)

DUPLICITY OF THE OFFENSE; EXCEPTION (BAR


2005)

AMENDMENTS IN FORM AND SUBSTANCE BEFORE PLEA

General rule: It must be made BEFORE the accused


enters his plea.

in an information or complaint
means the joinder of two or more separate and
distinct offenses in one and the same information or
complaint.
DUPLICITY OF OFFENSE

Exception: If the amendment downgrades the nature


of the offense charged in, or excludes any accused
from, the complaint/information, it can be made
only upon motion of the prosecutor, with notice to
the offended party and with leave of court. The court
is mandated to state its reasons in resolving the
motion of the prosecutor and to furnish all parties,
especially the offended party, of copies of its order.

General rule: The information must charge only one


offense.[Sec. 13, Rule 110]
Objection to a complaint or information which
charges more than one offense must be timely
interposed before trial. [Sec 3, Rule 120] Failure to do
so constitutes a waiver, [People v Tabio (2008)] and
the court may convict him of as many offenses as are
charged and proved, and impose on him the penalty
for each offense. [Sec 3, Rule 120]

AMENDMENTS MADE AFTER PLEA AND DURING TRIAL

Formal 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 WON a
defendant is prejudiced by the amendment of
information is:
(a) WON a defense under the information as it
originally stood would be available after the
amendment is made, and
(b) WON any evidence defendant might have
would be equally applicable to the
information in the one form as in the other.
[People vs Casey (1981)]
(c) An amendment is only in form

Exception: When the law prescribes a single


punishment for various offenses
Remedy: The filing of a motion to quash is the
remedy in case of duplicity of offense in an
information
Waiver: Should there be duplicity of offense in the
information, the accused must move for the quashal
of the same before arraignment.Otherwise, he is
deemed to have waived the objection
SEVERAL MODES
DUPLICITOUS

OF

COMMITTING

OFFENSE

BAR OPERATIONS COMMISSION

Substantial proscribed. [People vs. Zulueta (1951)]


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 vs Villaluz
(1975)]

NOT

General rule: In case of crimes susceptible of being


committed in various modes, the allegations in the
information of the various ways of committing the
offense would be regarded as a description of only
one offense and information is not rendered
defective.

Exception: if it is beneficial to the accused. [Ricarzevs


CA (2007)]
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]

Exceptions:
(a) Complex crimes
(b) Special complex crimes
(c) Continuous crimes
(d) Crimes susceptible of being committed in various
modes
(e) Crimes which another offense is an ingredient
[People v. Camerino (1960)]

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

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CRIMINAL PROCEDURE

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.

General Rule: Principle of Territoriality


Subject to existing laws, in all criminal prosecutions,
the action must be instituted and tried in the courts
of the municipality or territory where the offense was
committed or any of its essential ingredients
occurred (Sec. 15(a), Rule 110).

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

Exceptions:
Felony

Formal or
changes

Committed on a railroad
train, aircraft, or any other
public or private vehicle in
the court of its trip

Substitution

Substantial Substantial change form


original

Can be effected without Must be with leave of


leave of court
court

May be instituted and


tried in the court of any
municipality or territory
where such train, aircraft,
or other vehicle passed
during such trip, including
place of departure and
arrival

Committed on board a May be instated and tried


vessel in the course of its in the proper court of the
voyage
first port of entry or of any
municipality or territory
through which vessel
passed, subject to the
generally
accepted
principles of international
law

Only as to form, there is Another PI is entailed and


no need for another PI accused has to plead
and retaking of plea
anew
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

Venue

Felonies under Art. 2, RPC Cognizable by the proper


court where criminal
action was first filed

Distinction between substitution and amendment (Bar


1994)
Amendment

BAR OPERATIONS COMMISSION

Involves
a
different
offense which does not
include those provided in
the
original
charge;
cannot invoke double
jeopardy

VENUE OF CRIMINAL ACTIONS


Place where action is to be instituted
Criminal actions shall be instituted and tried in the
court of the municipality or territory
(1) where the offense was committed; or
(2) where any of its essential ingredients occurred.
[Sec. 15(a), Rule 110]

Piracy

Venue of piracy has not


territorial limits. It may be
tried anywhere. [People v.
Lol-lo GR No. 17958,
February 27, 1922]

Libel

May be instituted at the


election of the offended
part or suing party in the
province or city, subject to
Art. 360, RPC

In cases filed under BP 22 Action shall be filed in the


place where the check
was dishonored or issued.
In case of a cross-check, in
the
place
of
the
depositary or collecting
bank

Venue is jurisdictional
The court has no jurisdiction to try an offense
committed outside its territorial jurisdiction. It
cannot be waived, or changed by agreement of the
parties, or by the consent of the defendant.
How venue or jurisdiction determined
Venue in criminal cases is jurisdictional.
One cannot be held to answer for any crime
committed by him except in the jurisdiction where it
was committed or where an essential ingredient
thereof took place. The place where the accused was
arrested is of no moment. [People vs Enriquez]

In
exceptional To ensure a fair trial and
circumstances
impartial inquiry, the SC
shall have the power to
order a change of venue
or place of trial to avoid
miscarriage of justice
(Sec. 5(4), Art. VII, 1987

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Felony

BAR OPERATIONS COMMISSION

made before the prosecution starts presenting its


evidence and under circumstances affording the
offended party a reasonable opportunity to make
such reservation [Sec. 1, Rule 111]

Venue
Constitution)

INTERVENTION OF OFFENDED PARTY [SEC. 16,


RULE 110]
General rule: An offended party has the right to
intervene in the prosecution of a crime

SEPARATE ACTION FILED BY THE ACCUSED

No counterclaim, cross-claim or 3rd-party complaint


may be filed by the accused in the criminal case, but
any cause of action which could have been the
subject thereof may be litigated in a separate civil
action. [Sec. 1, Rule 111]

Note: This is still subject to the control of the


prosecutor. [Phil. Rabbit Bus Lines vs People (2004)]

WHEN SEPARATE CIVIL ACTION IS SUSPENDED

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

After the criminal action has been commenced, the


separate civil action arising therefrom cannot be
instituted until final judgment has been entered in
the criminal action. [Sec 2, Rule 111]
The civil action, which should be suspended after the
institution of the criminal action, is that arising from
delict or crime.
Civil actions under Arts. 32-34 and 2176 of the Civil
Code are exempted from the rule that after a
criminal action has been commenced, the civil action
which has been reserved cannot be instituted until
final judgment has been rendered in the criminal
action. [Sec. 3, Rule 111]

Prosecution of Civil Action


HOW INSTITUTED

EFFECT OF THE DEATH OF ACCUSED OR


CONVICT ON CIVIL ACTION [SEC. 4, RULE 111]
(1) Criminal liability is extinguished [Art. 89, RPC]
(2) As regards civil liability:

General rule: The civil action for the recovery of civil


liability arising from the offense charged is deemed
instituted with the criminal action. [Sec. 1, Rule 111]

Death is before arraignment: Dismissal of case


without prejudice to filing of civil action against
estate of the deceased

Exception [Sec. 1, Rule 111]: If the offended party:


(1) Waives the civil action;
(2) Institutes the civil action prior to the criminal
action; or
(3) Reserves the right to institute it separately

Death is after arraignment and during pendency of


criminal action: Extinguishes civil liability arising
from the delict

RULE ON IMPLIED INSTITUTION OF CIVIL


ACTION WITH CRIMINAL ACTION

WHEN
CIVIL
ACTION
INDEPENDENTLY

MAY

Death during pendency of appeal: Criminal liability


and civil liability based thereon [People vs Ayochok
(2010)]

PROCEED

Exception: Independent civil actions instituted under


Arts. 32, 33, 34 and 2176 of the Civil Code, or those
instituted to enforce liability arising from other
sources of obligation may be continued against the
estate or legal representative of the accused after
proper substitution or against his estate.

Under the Rules, only civil liability ARISING FROM


the crime charged is deemed instituted, hence, the
civil actions under the Civil Code, specifically Arts.
32, 33, 34, and 2176, remain separate, distinct, and
independent of any criminal prosecution although
based on the same act. [Philippine Rabbit Bus Lines
Inc. v. People (2004)]
When reservation is made: The reservation of the
right to institute separately the civil action shall be
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BAR OPERATIONS COMMISSION

As regards the parties in the civil action:


The heirs of the accused may be substituted without
requiring
the
appointment
of
an
executor/administrator.

RULE ON FILING FEES IN CIVIL ACTION DEEMED


INSTITUTED WITH THE CRIMINAL ACTION

Court may appoint guardian ad litem for the minors.


Court shall order legal representative/s to appear
and be substituted within 30 days from notice.

Filing fees apply when damages are being claimed


by the offended party.

FILING FEES OF CIVIL ACTION DEEMED INSTITUTED IN


CRIMINAL ACTION

General Rule: The actual damages claimed or


recovered by the offended party are not included in
the computation of the filing fees. [Sec. 1, Rule 111]

PREJUDICIAL QUESTION (1999 BAR) [SECS. 6


AND 7, RULE 111]

When the amount of damages, other than actual, is


specified in the complaint or information filed in
court, then the corresponding filing fees shall be
paid by the offended party upon the filing thereof in
court for trial;

ELEMENTS OF PREJUDICIAL QUESTION

Prejudicial Question: is that which arises in a case the


resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which
pertains to another tribunal.
When a civil action may be considered prejudicial:
(a) the civil case involves facts intimately related to
those upon which the criminal prosecution would
be based;
(b) in the resolution of the issue/s raised in the civil
action, the guilt/innocence of the accused would
necessarily be determined;
(c) jurisdiction to try the action is lodged in another
tribunal [Basis of a) to c): Magestrado v. People
(2009)]
(d) Action is instituted prior to the institution of the
criminal action [Pimentel v. Pimentel (2010)]

In any other casei.e., when the amount of damages


is not so alleged in the complaint or information filed
in court, the corresponding filing fees need not be
paid and shall simply constitute a first lien on the
judgment, except on an award for actual damages.
[General vs Claravall (1991)]
Exceptions: In criminal actions for violation of BP22,
the amount of the check involved shall be considered
as the actual damages for which no separate civil
action is allowed. In estafa cases, the filing fees shall
be paid based on the amount involved. [A.M. No. 042-04]

Rationale: to avoid two conflicting decisions in the


civil case and in the criminal case. [Sy Thiong Siou vs
Sy Chim (2009)]

When paid: Upon the filing of the criminal action

EFFECT (BAR 1995, 1999, 2010)

General rule: Where both a civil and a criminal case


arising from the same facts are filed in court, the
criminal case takes precedence [Sec 2, Rule 111]

Preliminary Investigation

Exception: If there exists a prejudicial question which


should be resolved first before an action could be
taken in the criminal case.

PRELIMINARY INVESTIGATION, DEFINED

NATURE OF RIGHT
It is an inquiry or proceeding to determine whether
there is sufficient ground to engender a wellfounded belief that a crime has been committed and
the respondent is probably guilty thereof, and should
be held for trial. [Sec. 1, Rule 112]

WHERE TO FILE PETITION FOR SUSPENSION IS FILED [SEC.


6, RULE 111]

Office of the prosecutor (in the PI stage);


Court conducting the PI; or
Court where criminal action has been filed for trial, at
any time before the prosecution rests.

NATURE OF THE RIGHT TO PRELIMINARY INVESTIGATION

It is a statutory right in those instances where it is


required, and to withhold it would violate the
constitutional right to due process. [People vs.
Oandasa (1968)]

Note: The Rule precludes a motu proprio suspension


of the civil action. [Riano]

Not a mere formal or technical right but a substantial


right.

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CRIMINAL PROCEDURE

protect the state from useless and expensive trials.


[Tandoc vs. Resultan (1989)]

RIGHT TO PRELIMINARY INVESTIGATION

The right to preliminary investigation is a personal


right which the accused may waive either expressly or
by implication.

SCOPE OF PI
A PI is merely inquisitorial, and it is often the only
means of discovering the persons who may
reasonably be charged with a crime, to enable the
prosecutor to prepare his complaint or information.
It is not a trial of the case on the merits and does
not place the persons against whom it is taken in
jeopardy.

When the accused waives his right to preliminary


investigation, the fiscal may forthwith file the
corresponding information with the proper court.
[People vs Perez (1960)]
An application for or admission to bail shall not bar
the accused from assailing the regularity or
questioning the absence of a preliminary
investigation of the charge against him provided that
he raises the challenge before entering his plea [Sec.
26, Rule 114].
INSTANCES WHEREIN THE RIGHT TO
WAIVED:

WHO MAY CONDUCT DETERMINATION OF


EXISTENCE OF PROBABLE CAUSE
Probable cause
The existence of such facts and circumstances as
would excite the belief, in a reasonable mind, acting
on the facts within the knowledge of the prosecutor,
that the person charged was guilty of the crime for
which he was prosecuted

PI IS DEEMED

(1) Express waiver or by silence [Herrera, Vol. IV, p.


278, 2007 ed.]
(2) Failure to invoke it during arraignment [People v.
De Asis, GR No. 105581, Dec. 7, 1993]; and
(3) Consenting to be arraigned and entering a plea of
not guilty without invoking the right to PI [People
v. Bulosan, GR No. 58404, April 15, 1988]

Generally [Rule 112, Sec. 2 as amended by A.M. No.


05-8-26-SC]
1) Provincial/city prosecutors and their assistants;
2) National and regional state prosecutors;
3) Other officers as may be authorized by law.

The waiver, whether express or implied, must be in a


clear and unequivocal manner [Herrera, Vol. IV, p.278,
2007 ed.]

The prosecutor
If the determination of probable cause is for
purposes of indictment; such finding will not be
disturbed by the court unless there is finding of grave
abuse of discretion

The right to PI cannot be raised for the first time on


appeal [Pilapil v. Sandiganbayan, GR No. 101978,
April 7, 1993]
INSTANCES WHEREIN THE RIGHT TO
WAIVED:

BAR OPERATIONS COMMISSION

The Court
If the determination of probable cause is for
purposes of issuance of warrant of arrest

PI IS NOT DEEMED

(1) Failure to appear before the prosecutor during the


clarificatory hearing or when summoned,w hen the
right was invoked at the start of the proceeding
[Larranaga v. CA, GR No. 130644, March 13, 1998];
or
(2) When the accused filed an application for bail
and was arraigned over his objection and the
accused demand that preliminary investigation be
conducted [Go v. CA, GR No. 101837, Feb. 11, 1992]

COMELEC, when vested


COMELEC may conduct investigation as regards
election offenses. [Sec. 2(6), Art. IX-C, Consti; Sec.
265, Omnibus Election Code]

PURPOSES OF PRELIMINARY INVESTIGATION


To determine whether or not a crime has been
committed and whether or not there is probable
cause to believe that the accused is guilty. [Raro vs.
Sandiganbayan (2000)]

Ombudsman
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. [Sec. 12, Art. XI, Constitution]

To secure the innocent against hasty, malicious and


oppressive prosecution, and to protect him from an
open and public accusation of a crime, from the
trouble, expense, anxiety of a public trial, and also

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

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BAR OPERATIONS COMMISSION

the Sandiganbayan, but also those within the


jurisdiction of regular courts as well.

MCTC from those authorized to conduct a PI


effective October 3, 2005.

Note: RTC judges have NO power to conduct PI; and


MTC judges cannot conduct PI anymore after A.M.
No. 05-8-26-SC eliminated judges of the MTC and

PROCEDURE FOR PRELIMINARY INVESTIGATION

[Sec. 3,

Rule 112 of Rules of Criminal Procedure]


RESOLUTION OF INVESTIGATING PROSECUTOR

[SEC. 4, RULE 112]

Filing of the complaint [Sec. 3(a), Rule 112]


(1) Stating the respondents name and address
(2) Include the affidavits of complainant and the witnesses,
and other documents to establish probable cause,
which must be subscribed and sworn to before a
prosecutor or government official authorized to
administer oath or notary public
(3) In such number of copies as there are respondents, plus
2 copies for the official file

If he finds probable cause to hold respondent for trial,


he shall prepare a resolution and certify under oath
in the information that:
a. He or an authorized officer has personally
examined the complainant and his
witnesses;
b. That there is reasonable ground to believe
that a crime has been committed and that
the accused is probably guilty thereof;
c. That the accused was informed of the
complaint and evidences against him;
d. That he was given opportunity to submit
controverting evidence

Action of the investigating officer [Sec. 3(b), Rule 112]


(1) Within 10 days after the filing of the complaint, the
investigating officer will either:
(2) Dismiss, if he finds no ground to continue; or
(3) Issue a subpoena to the respondent, attaching the
complaint and other documents.If subpoena is not
possible, the investigating officer shall decide based on
what complainant presented.
(4) Respondent has the right to examine the evidence
submitted by complainant, and copy evidence at his
expense.

If he finds no probable cause, he shall recommend


the dismissal of the complaint
REVIEW [SEC. 4, RULE 112]
Within 5 days from resolution, the investigating
officer will forward the case to the prosecutor or to
the Ombudsman in cases cognizable by
the Sandiganbayan in the exercise of its
original jurisdiction.

Defendants counter-affidavit

Must be made within 10 days from receipt of complaint, and


must comply with the same requirements as a complaint.
[Sec. 3(c), Rule 112]
If not made within 10 days, the investigating officer shall
resolve the complaint based on the evidence presented by the
complainant [Sec. 3(d), Rule 112]

Within 10 days from receipt of the resolution,


the prosecutor/Ombudsman will act on the case.

Clarificatory Hearing [Sec. 3(e), Rule 112]


The investigator must conduct a hearing within 10 days from
receipt of the counter-affidavit. The hearing must be finished
in 5 days.

No complaint/information may be filed or dismissed


by an investigating prosecutor without the prior
written authority or approval of the prosecutor or
Ombudsman.

Hearing is conducted only if there are such facts and issues to


be clarified from a party or a witness.

In case the investigation officer recommends the


dismissal
of
the
complaint
but
the
prosecutor/Ombudsman disagrees, the latter may file
the information himself or any deputy or order any
prosecutor to do so without conducting a new PI.

Parties may be present evidence, but they have no right to


examine or cross-examine. Questions of parties shall be
submitted to the investigating officer.
Within 10 day after the investigation, the officer shall
determine WON there is sufficient ground to hold respondent
for trial.

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Follow the procedure outlined in Sec. 3(a), Rule 112


above.

Note: The DOJ Secretary may file the information


without conducting another PI or dismiss the
information filed by the prosecutor. The DOJ
Secretary may review resolutions, via petition for
review to the Secretary of Justice, of his subordinates
in criminal cases despite the information being filed
in court (Community Rural Bank of Guimba v.
Talavera, AM No. RTJ-05-1909, April 6, 2005) See
also DOJ Circular No. 70
REMEDY OF AN AGGRIEVED PARTY
RESOLUTION OF THE DOJ SECRETARY

AGAINST

BAR OPERATIONS COMMISSION

Within 10 days after the filing of the


complaint/information, if the judge finds no PC after
personally evaluating the evidence or after personally
examining in writing and under oath the complainant
and his witnesses in the form of searching questions
and answers, he shall dismiss the same.

THE

Such resolution may be nullified in a petition for


certiorari under Rule 65 on grounds of grave abuse
of discretion resulting to lack or excess of jurisdiction
[Ching v. Sec. of Justice, 2006]

The judge may require submission of additional


evidence within 10 days from notice, to determine the
existence of PC.

The DOJ resolution is appealable administratively


before the Office of the President and the decision of
the latter may be appealed before the CA pursuant
to Rule 43 [De Ocampo v. Sec, of Justice, 2006]

If the judge still finds no


PC despite the additional
evidence, he shall dismiss
the case within 10 days
from its submission or
expiration of said period.

WHEN WARRANT OF ARREST MAY ISSUE


If the judge finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the
accused has already been arrested, and hold him for
trial.

If the judge is satisfied


that there is no need to
place the accused under
custody, he may issue
summons instead.

The PI conducted by the prosecutor is EXECUTIVE in


nature, it is for the purpose of determining whether
or not there exists sufficient ground for the filing of
information;
The PI conducted by the judge which is properly
called PRELIMINARY EXAMINATION is for the
determination of probable cause for the issuance of
warrant of arrest [P/Supt. Cruz v. Judge Areola, AM
No. RTJ-01-1642, March 6, 2002]
CASES NOT REQUIRING
INVESTIGATION

If the judge finds PC, he


shall issue a warrant of
arrest or a commitment
order (if the accused had
already been arrested)
and hold him for trial.

REMEDIES OF ACCUSED IF THERE WAS NO


PRELIMINARY INVESTIGATION
EFFECT OF DENIAL
INVESTIGATION

PRELIMINARY

OF

RIGHT

TO

PRELIMINARY

The absence of PI:


(1) does not impair the validity of the information or
otherwise render it defective;
(2) neither does it affect the jurisdiction of the court;
(3) nor constitute a ground for quashing the
information.

CASES NOT REQUIRING A PRELIMINARY INVESTIGATION


NOR COVERED BY RULE ON SUMMARY PROCEDURE [SEC.
8, RULE 112]

Cases punishable by imprisonment of less than 4


years, 2 months and 1 day, filed with the prosecutor
or MTC/MCTC

The trial court, instead of dismissing the information,


should hold in abeyance the proceedings and order
the public prosecutor to conduct a PI. [Villaflor v.
Vivar(2001)]

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BAR OPERATIONS COMMISSION

should remain under custody and correspondingly


be charged in court. (DOJ-NPS Manual)

IF PRELIMINARY INVESTIGATION IS BEING CONDUCTED

Injunction and writs of restraint


General rule: The power of the Fiscal to investigate
crimes committed within his jurisdiction will,
ordinarily, not be restrained.

General rule: PI is required to be conducted before a


complaint/ information is filed for an offense where
the penalty prescribed by law is at least 4 years, 2
months and 1 day, without regard to the fine. [Sec. 1,
Rule 112]

Exception: Extreme cases may exist where relief in


equity may be availed of to stop a purported
enforcement of a criminal law where it is necessary
(a) for the orderly administration of justice; (b) to
prevent the use of the strong arm of the law in an
oppressive and vindictive manner; (c) to avoid
multiplicity of actions; (d) to afford adequate
protection to constitutional rights; and (e) in proper
cases, because the statute relied upon is
unconstitutional, or was "held invalid." [Ladlad v.
Velasco (2007)]

Exception: When a person is lawfully arrested


without a warrant involving an offense that requires
a PI, a complaint/information may be filed without
conducting the PI if the necessary inquest is
conducted.
However, before the complaint or information is filed,
the person arrested may ask for a PI, but he must
sign a waiver of the provisions of Art. 125, RPC in the
presence of his counsel. Notwithstanding the waiver,
he may apply for bail and the investigation must be
terminated within 15 days from its inception.

INQUEST
DEFINITION

An informal and summary investigation conducted


by a public prosecutor in criminal cases involving
persons arrested and detained without the benefit of
a warrant of arrest issued by the court for the
purpose of determining whether or not said persons

After the filing of the complaint/ information in court


without a PI, the accused may within 5 days from the
time he learns of its filing, ask for a PI with the same
right to adduce evidence in his defense as provided
in Rule 112. [Sec. 6, Rule 112]

(b) other supporting evidence gathered by the police


in the course of the latter's investigation of the
criminal incident involving the arrested or
detained person.

PROCEDURE FOR INQUEST PROCEEDINGS

Considered commenced upon receipt by the Inquest


Officer from the law enforcement authorities of the
complaint/referral documents which should include:
(a) affidavit of arrest, investigation report, statement
of the complainant and witnesses, all of which
must be subscribed and sworn to before him

It must be terminated within the period prescribed


under the provisions of Article 125 of the RPC, as
amended.

INQUEST
No
Probable
Cause

Accused
wants PI
and is
willing to
waive Art.
125

Dismiss
the case

For PI

PAGE 165

Warrantless
arrest as not
valid

There is PC
and arrest
was valid

Release
for regular
PI

File
information

UP COLLEGE OF LAW

CRIMINAL PROCEDURE

BAR OPERATIONS COMMISSION

In flagrante delicto
When the person to be arrested:
(a) has committed,
(b) is actually committing, or
(c) is attempting to commit
an offense in the presence of the peace officer OR
private person who arrested him. (Rule 113, Sec.
5(a))

Arrest
DEFINITION
The taking of a person into custody in order that he
may be bound to answer for the commission of an
offense. (Rule 113, Sec. 1)
IMMUNITY FROM ARREST

Requisites:
(i) The person to be arrested must execute an OVERT
act indicating that he has just committed, is
actually committing, or is attempting to commit a
crime; and
(ii) Such overt act is done in the presence or within
the view of the arresting officer [ Zalameda v.
People (2009); People v. Laguio (2007)]

Parliamentary Immunity
Senators and Members of the House of
Representatives, while Congress is in session and for
offenses punishable by not more than 6 years
imprisonment. (Art. VI, Sec. 11, 1987 Constitution)
Diplomatic Immunity
Ambassadors and ministers of foreign countries and
their duly registered domestics subject to the
principle of reciprocity (RA 75)

In his presence means: [People v. Evaristo (1992)]


He sees the offense, even though at a distance;
He hears the disturbances created by the offense
and proceeds at once to the scene; or
Offense is continuing or has been consummated at
the time arrest is made.

ARREST, HOW MADE


MODES OF EFFECTING ARREST

(1) By an actual restraint of a person to be arrested.


(2) By his submission to the custody of the person
making the arrest. (Rule 113, Sec. 2, Par. 1)

Entrapment
An arrest made after an entrapment does not require
a warrant inasmuch as it is considered a valid
warrantless arrest pursuant to Rule 113, Sec. 5(a) of
the Rules of Court. [Teodicio v. CA (2004)]

It is enough that there be an intent on the part of one


of the parties to arrest the other and an intent on the
part of the other to submit, under the belief and
impression that submission is necessary. [Sanchez v.
Demetriou (1993)]

Buy-bust operation
When the appellant is caught in flagrante as a result
of the buy-bust operation, the policemen are not
only authorized but are also under obligation to
apprehend the drug pusher even without a warrant
of arrest. [People v. de Lara (1994)]

NO UNNECESSARY VIOLENCE

No violence or unnecessary force shall be used in


making an arrest. (Rule 113, Sec. 2, Par. 2)
Application of actual force, manual touching of the
body, physical restraint or a formal declaration of
arrest is not required.

Hot pursuit arrest


When an offense has just been committed and the
officer or private person has probable cause to
believe, based on PERSONAL knowledge of facts or
circumstances, that the person to be arrested has
committed it (Rule 113, Sec. 5(b))

TIME TO MAKE ARREST

An arrest may be made on any day and at any time


of the day or night. (Rule 113, Sec. 6)

Requisites:
(i) An offense has just been committed; and

ARREST WITHOUT WARRANT, WHEN LAWFUL


(1997, 2000, 2003, 2004 BAR)

There must be a large measure of immediacy


between the time the offense was committed and
the time of the arrest. If there was an appreciable
lapse of time between the arrest and the
commission of the crime, a warrant of arrest must
be secured [People v. del Rosario (1999); People v.
Agojo (2009)];

General rule: No peace officer or person has the


power or authority to arrest anyone without a
warrant except in those cases expressly authorized
by law. [Umil v. Ramos (1991)]
Exceptions (Rule 113, Sec. 5)

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(ii) The person making the arrest has probable cause


to believe, based on personal knowledge of facts,
that the person to be arrested has committed it.

BAR OPERATIONS COMMISSION

the inadmissibility of evidence seized during an


illegal warrantless arrest [People v. Nuevas, supra].
Waiver of the illegality of the arrest
Any objection involving the arrest or the procedure in
the courts acquisition of jurisdiction over the person
of an accused must be made BEFORE he enters his
plea; otherwise the objection is deemed waived
[Zalameda v. People (2009)].

Probable cause must be based on personal


knowledge which means an actual belief or
reasonable grounds of suspicion [Abelita III v. Doria
(2009)].
Arrest of escaped prisoner
When the person to be arrested is a prisoner who has
escaped: (Rule 113, Sec. 5(c))
(a) From a penal establishment or place where he is
serving final judgment OR temporarily confined
while his case is pending; or
(b) While being transferred from one confinement to
another.

There is waiver if the accused voluntarily enters his


plea and participates during trial, WITHOUT
previously invoking his objections thereto [Leviste v.
Hon Alameda (2010_); Borlongan v. Pea (2010)].
There must be clear and convincing proof that the
accused had an actual intention to relinquish his
right to question the existence of probable cause
[Leviste v. Hon Alameda, supra; Borlongan v. Pea,
supra].

Escapee may be immediately pursued or re-arrested


without a warrant at any time and in any place within
the Philippines. (Rule 113, Sec. 13)

An application for or admission to bail shall not bar


the accused from challenging the validity of his
arrest or the legality of the warrant issued, provided
that he raises the objection before he enters his plea.
(Rule 114, Sec. 26).

Rationale: At the time of arrest, the escapee is in


continuous commission of a crime (i.e. evasion of
service of sentence).
Notes: Where a warrantless arrest is made under the
in flagrante and hot pursuit exceptions, the person
arrested without a warrant shall forthwith arrested
delivered to the nearest police station or jail. (Rule
113, Sec. 5, last par.)

When cured
When the accused voluntarily submits to the
jurisdiction of the trial court [Dolera v. People (2009);
People v. Alunday (2008)].

A WARRANTLESS arrest maybe made not only by a


peace officer but also by a private person.

By the filing of an information in court and the


subsequent issuance by the judge of a warrant of
arrest [Sanchez v. Demetriou (1993)

Other lawful warrantless arrest


(a) Where a person who has been lawfully arrested
escapes or is rescued (Rule 113, Sec. 13) Any
person may immediately pursue or retake him
without a warrant at any time and in any
place within the Philippines.
(b) By the bondsman, for the purpose of surrendering
the accused. (Rule 114, Sec. 23)
(c) Where the accused who is released on bail
attempts to leave the country without
permission of the court where the case is
pending. (Rule 114, Sec. 23)

METHOD OF ARREST
BY OFFICER WITH WARRANT

Duties of the arresting officer


(1) Execution of warrant (Rule 113, Sec. 4)
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.
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.

RULES ON ILLEGALITY OF ARREST

Effect of illegal arrest


The legality of the arrest affects only the jurisdiction
of the court over the person of the accused [People v.
Nuevas (2007)].

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 (1) the cause of the arrest and (2) the fact that a

A waiver of the right to question an illegal


warrantless arrest does not also mean a waiver of

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warrant has been issued for his arrest. (Rule 113,


Sec. 7)

BAR OPERATIONS COMMISSION

BY OFFICER WITHOUT WARRANT

Duties of arresting officer without warrant


The officer shall inform the person to be arrested of
(1) his authority and (2) the cause of the arrest. (Rule
113, Sec. 8)

Exceptions:
(a) When he flees;
(b) When he forcibly resists before the officer has
opportunity to so inform him;
(c) When the giving of such information will
imperil the arrest.

Exceptions:
(a) When the person to be arrested is engaged in the
commission of the offense;
(b) When he is pursued immediately after its
commission;
(c) When he has escaped, flees or forcibly resists
before the officer has the opportunity to so inform
him; or
(d) When the giving of such information will imperil
the arrest.

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. (Rule 113, Sec. 7)
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)]

BY PRIVATE PERSON (CITIZENS ARREST)

Duties of private person effecting an arrest


(1) The private person shall inform the person to be
arrested of (1) the intention to arrest him and (2)
the cause of the arrest. (Rule 113, Sec. 9)

(3) The officer executing the warrant shall arrest the


accused and deliver him to the nearest police
station or jail without unnecessary delay (Rule 113,
Sec. 3)
(4) No violence or unnecessary force shall be used
in making an arrest. (Rule 113, Sec. 2, last par.).

Exceptions: Same as those for arrest by an officer


without a warrant.
(2) The private person must deliver the arrested
person to the nearest police station or jail, and he
shall be proceeded against in accordance with
Rule 112, Sec. 7. Otherwise, the private person
may be held liable for illegal detention.

Rights of the arresting officer


(1) To summon assistance (Rule 113, Sec. 10)
He may orally summon as many persons as he
deems necessary to assist him in effecting the
arrest.

REQUISITES OF A VALID WARRANT OF ARREST

(2) To break into building or enclosure (Rule 113, Sec.


11)

ESSENTIAL REQUISITES OF A VALID ARREST WARRANT


(ART. III, SEC. 2, 1987 CONSTITUTION)

Must be issued upon probable cause determined


PERSONALLY by the judge after examination under
oath or affirmation of the complainant and the
witnesses he may produce; and

Requisites:
(a) The person to be arrested is or is reasonably
believed to be in said building;
(b) He has announced his authority and purpose
of entering therein; and
(c) He has requested and been denied
admittance.
Also applicable where there is a valid arrest
without a warrant.

The warrant must particularly describe the person to


be arrested.
INSTANCES WHEN JUDGE ISSUES WARRANT OF ARREST

Upon the filing of the information by the public


prosecutor and after personal evaluation by the
judge of the prosecutors resolution and supporting
evidence. (Rule 112, Sec. 5(a))

(3) To break out from the building/enclosure when


necessary to liberate himself (Rule 113, Sec. 12)
Also applicable where there is a valid warrantless
arrest.

The judge does not have to personally examine the


complainant and his witnesses. Established doctrine
provides:

(4) To search the person arrested for dangerous


weapons or anything which may have been used
or constitute proof in the commission of an
offense without a warrant (Rule 126, Sec. 13)

He shall personally evaluate the report and the


supporting documents submitted by the fiscal
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regarding the existence of probable cause and, on


the basis thereof, issue a warrant of arrest; OR

to guarantee his appearance before any court as


required under conditions hereinafter specified. [Rule
114, Sec. 1]

If on the basis thereof he finds NO probable cause,


he may disregard the fiscals report and require the
submission
of
supporting
affidavits
of
witnesses.[People v. Gray (2010); AAA v. Carbonell
(2007))]

PURPOSES

(1) To relieve an accused from imprisonment until his


conviction and yet secure his appearance at the
trial. [ People v. The Hon. Donato (2011)]
(2) To honor the presumption of innocence until his
guilt is proven beyond reasonable doubt [Art. III,
Sec. 14, Const]; and
(3) To enable him to prepare his defense without
being subject to punishment prior to conviction
[Cortes v. Judge Catral (1997)].

DETERMINATION OF PROBABLE CAUSE FOR


ISSUANCE OF WARRANT OF ARREST
Probable cause test
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)]

AS REGARDS THE REQUIREMENT OF CUSTODY

General Rule: Custody of the law is required before


the court can act on an application for bail [Miranda
v. Tuliao (2006)]

Probable cause demands more than suspicion but it


requires less than evidence that would justify
conviction. [People v. Gabo (2010)]

Exceptions (When witness/es post bail):


(1) When bail is required to guarantee the
appearance of a material witness [Sec. 14, Rule
119];
(2) When bail is required to guarantee the
appearance of a prosecution witness in cases
where there is substitution of the information
[Riano, citing Sec. 14, Rule 110]

DISTINGUISH PROBABLE CAUSE OF FISCAL


FROM THAT OF A JUDGE
Fiscal
Executive
of PC

BAR OPERATIONS COMMISSION

Judge

determination Judicial determination of


PC

WHEN A MATTER OF RIGHT; EXCEPTIONS

Determination of PC to Determination of PC to
hold a person for trial
issue a warrant of arrest

BAIL AS A MATTER OF RIGHT

When bail is a matter of right [Rule114, Sec. 4]


(1) Before or after conviction pending appeal by the
MTC.
(2) Before conviction by RTC of all offenses
punishable by penalty lower than reclusion
perpetua.

W/N there is reasonable W/N a warrant of arrest


ground to believe that the should be issued
accused is guilty of the
offense charged and
should be held for trial
Rule: The determination of probable cause for
issuing a warrant of arrest is made by the judge. The
preliminary investigation proper---whether or not
there is a reasonable ground to believe that the
accused is guilty of the offense charged---is the
function of the investigating prosecutor [AAA v.
Carbonell (2007)].

WHEN BAIL NOT AVAILABLE

When evidence of guilt is strong in capital offenses or


those punishable by death, reclusion perpetua or life
imprisonment.
Exception: When the accused is a minor, he is
entitled to bail regardless of whether the evidence of
guilt is strong.
Capital Offense
An offense which under the law existing at the time
of commission and of the application for admission
to bail is punishable by death. [Rule 114, Sec. 6]

Bail
NATURE

The capital nature of the offense is determined by


the penalty prescribed by law and not the one actually
imposed.

DEFINITION

Bail is the security given for the release of a person in


custody of the law, furnished by him or a bondsman,

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Note: R.A. 9346 (An Act Prohibiting the Imposition of


in the Philippines) enacted on June 24, 2006 (which
repealed R.A. No. 8177 and R. A. No. 7659)
prohibited the imposition of death penalty. Under
R.A. 9346, it stated that:

BAR OPERATIONS COMMISSION

Note: In hearing the petition for bail, the prosecution


has the burden of showing that the evidence of guilt
is strong. [Rule 114, Sec. 8]
In deportation proceedings, bail is discretionary upon
the Commissioner of Immigration and Deportation.
[Harvey v. Defensor-Santiago (1990)]

Section 7. Capital offense or an offense punishable by


reclusion perpetua or life imprisonment

WHEN APPLICATION FOR BAIL AFTER CONVICTION SHALL


BE DENIED:

Bail in extradition proceedings


Basis: [Gov. of USA vs Purganan & Jimenez (2002)]

If the penalty imposed by the trial court is


imprisonment exceeding 6 years, the accused shall
be denied bail or his bail shall be cancelled upon
showing by the prosecution, with notice to the
accused, of any of the following:
(1) Recidivism, quasi-recidivism, or habitual
delinquency or commission of a crime
aggravated by reiteration of the accused.
(2) The accused previously escaped from legal
confinement, evaded sentence or violated bail
conditions without valid justification.
(3) Commission of offense while under probation,
parole or conditional pardon by the accused.
(4) Probability of flight.
(5) Undue risk that the accused may commit another
crime during pendency of appeal.

General Rule: Right to bail is available only in


criminal proceedings and does not apply to
extradition proceedings because extradition courts
do not render judgments of conviction or acquittal.
Exception: Only upon a clear and convincing
evidence:
(a) that once granted, the applicant will not be flight
risk or will not pose danger to the community;
and
(b) that there exists special humanitarian and
compelling circumstances.
Note: Bail is a matter of discretion in extradition
proceedings [Government of Hong Kong Special
Administrative Region v. Olalia (2007)]

HEARING OF APPLICATION FOR BAIL IN


CAPITAL OFFENSES [SEC. 8, RULE 114]
Note: RA 9346, Section 7. Capital offense or an
offense punishable by reclusion perpetua or life
imprisonment or life imprisonment

Right to bail is not available:


(1) To military personnel accused under general
courts martial [Comendador v. de Villa (1991)]
(2) After a judgment of conviction has become final
If he applied for probation before finality, he may
be allowed temporary liberty under his bail [Rule
114, Sec. 24].
(3) After the accused has commenced to serve his
sentence [Rule 114, Sec. 24]

CONVICTION

This refers to conviction by the trial court, which has


not become final, as the accused still has the right to
appeal. After conviction by the trial court, the
accused convicted of a capital offense is no longer
entitled to bail, and can only be released when the
conviction is reversed by the appellate court. [Section
13, Article III, Const.]

WHEN A MATTER OF DISCRETION [RULE 114,


SEC. 5]
(1) Before conviction, in offenses punishable by
death, reclusion perpetua or life imprisonment
and evidence of guilt is not strong
(2) Upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life
imprisonment.

PROSECUTION HAS BURDEN OF PROOF

At the hearing of an application for bail filed by a


person in custody for the commission of an offense
punishable by reclusion perpetua or life
imprisonment, the prosecution has the burden of
showing that evidence of guilt is strong.

It may be filed in and acted upon by the RTC


despite the filing of notice of appeal, provided
that it has not transmitted the original record to
the appellate court.

Evidence of Guilt in the Constitution and the Rules


refers to a finding of innocence or culpability,
regardless of the modifying circumstances.

If the RTC decision changed nature of the offense


from non-bailable to bailable, the application for
bail can be resolved only by the appellate court.

REGARDING MINORS CHARGED WITH A CAPITAL OFFENSE

If the person charged with a capital offense is


admittedly a minor, which would entitle him, if
convicted, to a penalty next lower than that

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prescribed by law, he is entitled to bail regardless of


whether the evidence of guilt is strong. The reason
for this is that one who faces a probable death
sentence has a particularly strong temptation to flee.

BAR OPERATIONS COMMISSION

recognizance, the application may only be filed in the


court where the case is pending, on trial, or appeal.
GUIDELINES IN FIXING AMOUNT OF BAIL [RULE
114, SEC. 9]

This reason does not hold where the accused has


been established without objection to be minor who
by law cannot be sentenced to death.

Primarily, but not limited to, the following factors:


(1) Financial ability of the accused
(2) Nature and circumstances of the offense
(3) Penalty for the offense charged
(4) Character and reputation of the accused
(5) Age and health of the accused
(6) Probability of the accused appearing at the trial
(7) Forfeiture of other bail
(8) Fact that accused was a fugitive from justice
when arrested
(9) Forfeiture of other bail
(10) Pendency of other cases where the accused is on
bail.

DUTY OF JUDGE TO CONDUCT HEARING

Duties of the trial judge in a petition for bail


(a) Notify the prosecutor of the hearing and require
him to submit his recommendation;
(b) Conduct a hearing of the application regardless
of whether or not prosecution refuses to present
evidence to show that the guilt of the accused is
strong;
(c) Decide whether the evidence of guilt of the
accused is strong based on the summary of the
evidence of the prosecution;
(d) If the guilt of the accused is not strong, discharge
the accused upon the approval of the bail bond.
Otherwise, petition should be denied. [Riano,
citing Narciso v. Santa Romana-Cruz, 328 SCRA
505]

BAIL WHEN NOT REQUIRED [SEC. 16, RULE 114]


When a person has been in custody for a period
equal to or more than the possible maximum
imprisonment of the offense charged to which he
may be sentenced.
If the maximum penalty is destierro, he shall be
released after 30 days of preventive imprisonment.

Note: Evidence presented during the bail hearing are


automatically reproduced at the trial [Sec. 8, Rule
114]

In cases filed with the MTC/MCTC for an offense


punishable by an imprisonment of less than 4 yrs, 2
mos. and 1 day, and the judge is satisfied that there
is no necessity for placing the accused under
custody. [Riano, citing Sec. 8, Rule 112]

WHERE THE APPLICATION IS FILED: [SEC. 17, RULE 114; AS


AMENDED BY AM 05-08-26]

General Rule: The application may be filed with the


court where the case is pending.

In cases where a person is charged with violation of a


municipal/city ordinance, a light felony and/or
criminal offense, the penalty of which is not higher
than 6mos imprisonment and/or a fine of 2000 or
both where it is established that he is unable to post
the required cash or bail bond. [Sec. 1, RA 6036]

Exceptions:
(a) If the judge of the court where the case is pending
is absent or unavailable, the application may be
filed with any RTC/MTC/MeTC/MCTC judge in
the province, city or municipality.
(b) Where the accused is arrested in a province,
city/municipality other than where the case is
pending, the application may be filed with any
RTC of the said place. If no judge is available,
then with any MeTC/MTC/MCTC judge in the
said place. Judge who accepted the application
shall forward it, together with the order of
release and other supporting papers where the
case is pending
(c) When a person is in custody but not yet charged,
he may apply with any court in the province or
city/municipality where he is held.

Exceptions:
(a) Caught committing the offense in flagrante
(b) When accused confesses to the commission of
the offense unless he later repudiates the same in
a sworn statement or in open court as having
been extracted through force or intimidation
(c) Found to have previously escaped legal
confinement, evaded sentence, or jumped bail
(d) Found to have violated Sec. 2 of RA 6036 which
provides that the violation of the accused of the
sworn statement (required instead of bail) shall
justify the court to order his immediate arrest, if
the accused failure to report is not justified
(e) Accused is a recidivist or habitual delinquent or
has been previously convicted for an offense to

Note: Where the grant of bail is a matter of


discretion, or the accused seeks to be released on

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BAR OPERATIONS COMMISSION

which
the
law/ordinance
attaches
an
equal/greater penalty or for two/more offenses
to which it attaches a lighter penalty
(f) Accused committed the offense while on parole or
under conditional pardon
(g) Accused has previously been pardoned for
violation of municipal/city ordinance for at least
two times [Riano, citing Sec. 1, RA 6036]

Automatic Cancellation
(1) Upon acquittal of the accused
(2) Upon dismissal of the case
(3) Upon execution of judgment of conviction

INCREASE OR REDUCTION OF BAIL


After the accused is admitted to bail and for good
cause, the court may increase or decrease the
amount.

Bail is no longer a waiver of these objections [Rule


114, Sec. 26; Leviste v. Alameda (2011)].

APPLICATION NOT A BAR TO OBJECTIONS IN


ILLEGAL ARREST, LACK OF OR IRREGULAR
PRELIMINARY INVESTIGATION

REDUCED BAIL

Provided that the proper objections are timely raised


(i.e., before accused enters a plea), an application or
an admission to bail shall NOT bar the accused from
challenging or questioning the:
(1) Validity of his arrest.
(2) Legality of the arrest warrant.
(3) Regularity of preliminary investigation
(4) Absence of preliminary investigation

Person in custody for a period equal to or more than


the minimum of the principal penalty prescribed for
the offense charged may be released on a reduced
bond. [Rule 114, Sec. 16]

The court shall resolve the objections as early as


practicable but not later than the start of the trial of
the case.

INCREASED BAIL

Accused may be committed to custody if he does not


give bail in the increased amount within a
reasonable period of time. [Rule 114, Sec. 20]

HOLD DEPARTURE ORDER & BUREAU OF


IMMIGRATION WATCHLIST
Bondsmen can prevent accused from leaving country
by arresting him or asking for him to be re-arrested
by a police officer upon written authority. [Rule 114,
Sec. 23]

FORFEITURE AND CANCELLATION OF BAIL


FORFEITURE OF BAIL [RULE 114, SEC. 21]

If the accused failed to appear in person as required,


bondsmen are given 30 days within which to:
(1) Produce the body of the principal or give reason
for the non-production. Bondsmen may:
(a) Arrest the accused;
(b) Cause him to be arrested by a police
officer or any other person of suitable age or
discretion upon written authority endorsed
on a certified copy of the undertaking.
(2) Explain why the accused failed to appear.
(a) If the bondsmen fail to do these,
judgment is rendered against them, jointly
and severally, for the amount of the bail.
(b) Bondsmens liability cannot be mitigated
or reduced, unless the accused has been
surrendered or is acquitted.

The accused may be prohibited from leaving the


country during the pendency of his case. [PP 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 re-arrested
without warrant. [Rule 114, Sec. 23]
Hold-Departure/ Watchlist/ Allow Departure Orders
A hold-departure order may be issued only by the
RTCs in criminal cases within their exclusive
jurisdiction. [SC Circular No. 39-97 (June 19, 1997)]
SC Circular 39-97 deals with criminal cases pending
in the RTC. This created a void, as to those cases
pending in the MTC as well as those under
preliminary investigation. Thus the DOJ promulgated
DOJ Circular No. 41 governing the issuance of HDO,
Watchlist Orders, and Allow Departure Orders.
[Whereas clause of DOJ Circular No. 41]

CANCELLATION OF BAIL [RULE 114, SEC. 22]

Application by bondsmen
Upon application of the bondsmen with due notice
to the prosecutor, bail may be cancelled upon:
(a) surrender of the accused; OR
(b) proof of his death

Hold Departure Order


When it may issue

Watchlist Order

Against the accused, irrespective of Against the accused, irrespective of


nationality, in criminal cases falling within nationality, in criminal cases pending

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BAR OPERATIONS COMMISSION

the jurisdiction of first-level courts (MeTC, before the RTC


MTC, MCTC)
Against the respondent, irrespective of
Against the alien whose presence is nationality, in criminal cases pending
required either as a defendant, preliminary investigation, PFR, or MR
respondent, or witness in a civil or labor before the DOJ or any of its prosecution
case pending litigation, or any case before offices
an administrative agency of the
government.
Against any person pursuant to the AntiTrafficking in Persons Act of 2003 (RA
Against any person, either motu proprio, 9208) or in the interest of national
or upon the request by the Head of a security, public safety or public health
Department of the Government, the Chief
Justice of the Supreme Court for the
Judiciary; the Senate President or the
House Speaker for the Legislature, when
the adverse party is the Government or
any of its agencies or instrumentalities, or
in the interest of national security, public
safety or public health.
Validity

Grounds
for
cancellation

5 years reckoned from the date of its 60 days reckoned from the date of its
issuance, unless sooner terminated
issuance, unless sooner terminated or
extended for a non-extendible period of
not more than 60 days
lifting

or When the validity period has already When the validity period has already
expired
expired
When the accused has been allowed to
leave the country during the pendency of
the case, or has been acquitted of the
charge, or the case in which the
warrant/order of arrest was issued has
been dismissed or the warrant/order of
arrest has been recalled.

When the accused has been allowed by


the court to leave the country during the
pendency of the case, or has been
acquitted of the charge
When the PI is terminated, or when the
PFR or MR has been denied and/or
dismissed

When Allow Departure Orders (ADOs) may issue: for


exceptional reasons to allow the person to leave
upon submission of the following:
(1) An affidavit of purpose, including an undertaking
to report to the DOJ immediately upon return

(2) Authority to travel or travel clearance from the


court or appropriate government office or from
the investigating prosecutor

Rights of the Accused

The Rules or the law may, however, provide for a


presumption of guilt. [Hizon v. CA (2009)]

RIGHTS OF ACCUSED AT THE TRIAL [RULE 115]


TO BE PRESUMED INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE DOUBT

In Hizon v. Court of Appeals (2009), the Court


stressed that the statutory presumption is merely
prima facie. At no instance can the accused be
denied the right to rebut the presumption.

The presumption of regularity in the performance of


official duty cannot by itself overcome the
presumption of innocence nor constitute proof
beyond reasonable doubt. [People v. Sanchez (2008)]

Proof beyond reasonable doubt does not mean such


a degree of proof as, excluding possibility of error,
produces absolute certainty. Moral certainty only is

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required, or that degree of proof which produces


convinction in an unprejudiced mind. [Rule 133, Sec.2]

BAR OPERATIONS COMMISSION

Effects: Waiver of right to be present, right to present


evidence and right to cross-examine witnesses.
[Gimenez v. Nazareno (1988)]

Where the evidence in a criminal case is evenly


balanced, the constitutional presumption of
innocence titlts the scales in favor of the accused
[People v. Erguioza (2008)]. This is the equipoise
rule.

Right to counsel
(a) It means reasonably effective legal assistance.
[Gideon v. Wainright (1963)]
(b) It is absolute and may be invoked at all times,
even on appeal. [Telan v. CA (1991)]
(c) Duty to appoint counsel de oficio is mandatory
only at the time of arraignment. [Sayson v. People
(1988)]
(d) Violation of this right entitles the accused to new
trial. [People v. Serzo (1997)]The right to counsel
may be waived but to insure that the waiver is
voluntary and intelligent, the waiver must be in
writing and in the presence of the counsel of the
accused [People v. Del Castillo (2004)]. It must
also not be contrary to law, public order, public
policy, morals or good customs.
(e) Even a person under investigation for an offense
shall the right to have a competent and
independent counsel preferably of his own
choice Included in this right is the right to be
informed of his right to counsel [Sec. 12[1], Art. II,
1987 Constitution; Sec 2(b) RA 7438].

TO BE INFORMED OF THE NATURE AND CAUSE OF


ACCUSATION AGAINST HIM

An accused cannot be convicted of an offense, unless


it is clearly charged in the complaint or information.
[People v. Ortega (1997)]
Charge must be set forth with sufficient particularity
to enable the accused to intelligently prepare his
defense. [Balitaan v. CFI of Batangas (1982)]
The purpose is served by arraignment. [Borja v.
Mendoza (1977)] The title of the complaint, or the
designation of the offense charged or the particular
law violated is not controlling. No information for a
crime will be sufficient if it does not accurately and
clearly allege the elements of the crime charged.
[People v. Dimaano (2005)]

Right to defend in person


Only when it sufficiently appears that he can protect
his rights without the assistance of counsel [Sec. 1[b],
Rule 115, Rules of Court]

TO BE PRESENT AND DEFEND IN PERSON AND BY COUNSEL


AT EVERY STAGE OF THE PROCEEDINGS

Right to be present
General Rule: Presence of the accused during the
criminal action is not required and shall be based on
his sole discretion.

TO TESTIFY AS WITNESS IN HIS BEHALF

But subject to cross-examination on any matter


covered by his direct examination. (Sec. 1[d]. Rule 115)
Silence will not, in any manner, prejudice him.

Exception: Presence of the accused is mandatory:


(a) For purposes of identification;
(b) At arraignment; [Rule 116, Sec. 1(b)]
(c) At the promulgation of judgment;

RIGHT AGAINST SELF-INCRIMINATION (2005 BAR)

The right against self-incrimination has no


application to juridical persons. [BASECO v. PCGG
(1987)]

Exception: If the conviction is for a light offense. [Rule


120, Sec. 6]

The constitutional guaranty, that no person shall be


compelled in any criminal case to be a witness
against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The
corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible.
[Villafor vs. Summers (1920)] The proviso is that
torture of force shall be avoided.

This right may be waived when:


(1) The accused is absent without just cause at the
trial of which he had notice; or
(2) The accused under custody escapes, until custody
over him is regained.
Trial in absentia
Requisites: [Parada v. Veneracion (1997)]
(a) Prior arraignment;
(b) Proper notice of the trial;
(c) Failure to appear is unjustifiable.

The right is applicable to one who is compelled to


produce a document, and one who is compelled to
furnish a specimen of his handwriting, for in both
cases, the witness is required to furnish evidence
against himself. [People v. Nicandro (1986)]

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An accused occupies a different tier of protection


from an ordinary witness. He is entitled 1) to be
exempt from being a witness against himself, and 2)
to testify as witness in his own behalf; BUT if he
offers himself as a witness he may be crossexamined as any other witness; however, his neglect
or refusal to be a witness shall not in any manner
prejudice or be used against him. [People v. Judge
Ayson (1989)]

BAR OPERATIONS COMMISSION

If a subpoena is issued and the witness failed to


appear, the court should order the arrest of the
witness if necessary. [People v. Montejo (1967)]
RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL

In determining whether or not the right to speedy


disposition of cases has been violated, this Court has
laid down the following guidelines [Tan v. People
(2009); Olbes v. Buemio (2009)]:
(a) Length of the delay;
(b) Reasons for such delay;
(c) Assertion or failure to assert such right by the
accused; and
(d) Prejudice caused by the delay.

Thus, the right may be waived by the failure to timely


assert the right, that is, by answering an incriminating
question [Beltran v. Samson (1929)] when the
accused testifies in his own behalf and is crossexamined on matters covered by the direct
examination. [Sec. 1(f), Rule 115] The questions on
cross examination should be on matters related to
his direct examination. [People v. Judge Ayson, supra]

Remedy against denial of right:


(a) Motion to Dismiss [Corpuz v Sandiganbayan
(2004)]
The accused is not entitled to a dismissal where
such delay was caused by proceedings or motions
instituted by him.A dismissal based on a violation
of the right to speedy trial is equivalent to an
acquittal and double jeopardy may attach even if
the dismissal is with the consent of the accused.
[Condrada v. People (2003)]
(b) Mandamus. [Lumanlao v. Hon. Peralta (2006)]

RIGHT TO CONFRONTATION

Applies to any witness against the accused at the


trial.
Where the adverse party is deprived of the right to
cross-examine the persons who executed the
affidavits, said affidavits are generally rejected for
being hearsay. [Estrella v. Robles, Jr. (2007)]

RIGHT TO APPEAL

HOWEVER, either party may utilize as part of its


evidence the testimony of a witness who is deceased,
out of or cannot with due diligence be found in the
Philippines, unavailable or otherwise unable to
testify, given in another case or proceeding, judicial
or administrative, PROVIDED they involve the same
parties and subject matter and the adverse party had
the opportunity to cross-examine him. [Sec. 1(f), Rule
115]

In all criminal prosecutions, the accused shall have


the right to appeal in the manner prescribed by law.
[Hilario v. People (2008)]
An appeal in criminal case opens the ENTIRE case
for review and the appellate court may correct even
unassigned errors. [People v. Tambis (2008)]
The right to appeal is a statutory right and the
requirements must be complied with; otherwise, the
right is lost. [People v. Sabellano (1991)]

This right is waived by non-appearance. [Carredo v.


People (1990)]

If the accused escapes from confinement, appeal is


not allowed unless he voluntarily surrenders within
period for appeal. [People v. Omar (1991)]

The right does not apply in a preliminary


investigation. They parties may, however, submit to
the investigating officers questions which may be
asked to the party or witness concerned. [Sec. 3(e),
Rule 112]

The right to appeal is lost by the unjustified failure to


appear at the promulgation of judgment of
conviction [Villena v. People, (2011)]

Identification by a witness of the accused is


inadmissible if the accused had no opportunity to
confront witness. [People v. Lavarias (1968)]

RIGHTS OF PERSONS UNDER CUSTODIAL


INVESTIGATION [SEC. 2, RA 7438]
Custodial Investigation involves any questioning
initiated by law enforcement officers after a person
has been taken into custody or otherwise deprived of
his freedom of action in any significant way. [Aquino
v Paiste (2008)]

RIGHT TO COMPULSORY PROCESS

This right may be invoked by the accused to secure


the attendance of witnesses and the production of
witnesses in his behalf.

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AND TO HAVE COMPETENT AND INDEPENDENT COUNSEL,


PREFERABLY OF HIS OWN CHOICE, WHO SHALL AT ALL
TIMES BE ALLOWED TO CONFER PRIVATELY WITH THE
PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL
INVESTIGATION

It shall include the practice of issuing an invitation


to a person who is investigated in connection with an
offense he is suspected to have committed, without
prejudice to the liability of the inviting officer for
any violation of law.

TO BE ALLOWED VISITS BY OR CONFERENCES WITH:

Any member of his immediate family ("Immediate


family" includes his or her spouse, fianc or fiance,
parent or child, brother or sister, grandparent or
grandchild, uncle or aunt, nephew or niece, and
guardian or ward), or

TO BE ASSISTED BY COUNSEL AT ALL TIMES

Waiver of the right to counsel must be made with the


assistance of counsel. [Art. 3, Sec. 12(1), Constitution]
Specifically in the following instances:
(a) Signing of the written custodial report;
(b) Signing of the written extra-judicial confession
(2008 Bar)

Any medical doctor or


Priest or religious minister, chosen by him or by any
member of his immediate family or by his counsel, or
by any national NGO duly accredited by the
Commission on Human Rights or by any
international NGO duly accredited by the Office of
the President.

Requisites for the validity of an extrajudicial confession


made by a person arrested, detained or under
custodial investigation:
(1) It shall be in writing and signed by such
person; and
(2) It must be signed in the presence of his
counsel
OR, in the latters absence, upon a valid waiver;

CONSEQUENCES OF VIOLATION OF CUSTODIAL RIGHTS

Failure to inform
Any arresting public officer or employee, or any
investigating officer, shall suffer a fine of P6,000.00
or a penalty of imprisonment of not less than 8 years
but not more than 10 years, or both.

In the event of a valid waiver, it must be signed in


the presence of any of the parents, elder brothers
and sisters, his spouse, the municipal mayor, the
municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him.

The investigating officer who has been previously


convicted of a similar offense shall suffer the penalty
of perpetual absolute disqualification.

(c) Signing of the waiver to the provisions of Art. 125,


RPC.

Obstruction, prevention or prohibition of right to visits


or 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

The modifier competent and independent in the 1987


Constitution is not an empty rhetoric. It stresses the
need to accord the accused, under the uniquely
stressful conditions of a custodial investigation, an
informed judgment on the choices explained to him
by a diligent and capable lawyer [Lumanog v. People
(2010)]

Arraignment and Plea

If he cannot afford to have his own counsel, he must


be provided with a competent and independent
counsel by the investigating officer.

ARRAIGNMENT AND PLEA, HOW MADE

Assisting counsel may be any lawyer, except those:


(a) Directly affected by the case;
(b) Charged
with
conducting
preliminary
investigation;
(c) Charged with the prosecution of crimes. [Sec. 3,
RA 7438)

DEFINITION

The stage where the accused is formally informed of


the charge against him by reading before him the
information/complaint and asking him whether he
pleads guilty or not guilty. [Rule 116, Sec. 1(a)]
It is the stage where the issues are joined and
without which the proceedings cannot advance
further or, if held, will otherwise be void. [Borja v.
Mendoza (1977)]

TO REMAIN SILENT
TO BE INFORMED, IN A LANGUAGE KNOWN TO AND
UNDERSTOOD BY HIM, OF HIS RIGHTS TO REMAIN SILENT

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CRIMINAL PROCEDURE

DUTY OF THE COURT BEFORE ARRAIGNMENT

BAR OPERATIONS COMMISSION

The Court shall issue an order directing the public


prosecutor to submit the record of the PI to the
branch COC for the latter to attach the same to the
record of the case.

The court shall [Rule 116, Sec. 6]:


(a) Inform the accused of his right to counsel;
(b) Ask him if he desires to have one; and
(c) Must assign a counsel de officio to defend him;
unless the accused:
(1) Is allowed to defend himself in person; or
(2) Has employed a counsel of his choice.

The court shall inform the accused of his right to


counsel and ask him if he desires to have one.
Unless the accused is allowed to defend himself in
person or has employed counsel of his choice, the
court must assign a counsel de oficio to defend him.

BEFORE ARRAIGNMENT AND PLEA, THE ACCUSED MAY


AVAIL OF ANY OF THE FOLLOWING:

(1) Bill of particulars to enable him to properly


plead and prepare for trial
(2) Suspension of arraignment upon motion, the
proper party may ask for suspension of
arraignment to pursue a petition for review before
the DOJ Secretary under Sec. 11, Rule 116; period
of suspension shall not exceed 60 days from
filing of petition with the reviewing office
(3) Motion to Quash at anytime before entering his
plea, the accused may move to quash the
complaint or information on any of the grounds
under Sec. 3, Rule 117 in relation to Sec. 1, Rule 117
(4) Challenge the validity of the arrest or legality of
the warrant or assail the regularity or question
the absence of preliminary investigation of the
charge,

Arraignment
If accused pleads Not Guilty
Affirmative defense (admits the
charge but raises exempting or
justifying circumstances), then
Reverse Order of Trial
Negative defense (denies the
charge), then proceed to regular
trial
If accused pleads Guilty

PROVIDED that if the accused does not question the


legality of the arrest or search, this objection is
deemed waived.

For Non-Capital Offenses,


promulgate judgment of
conviction

HOW ARRAIGNMENT MADE

In general

For Capital Offenses, the


prosecution is still required to
prove guilt beyond reasonable
doubt
If accused does not enter ANY plea, a
plea of Not Guilty is entered by the Court
Note: The time of the pendency of a motion to quash
or for a bill of particulars or other causes justifying
suspension of the arraignment shall be excluded in
computing the period. [Rule 116, Sec. 1(g)]

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CRIMINAL PROCEDURE

BAR OPERATIONS COMMISSION

If the accused is under preventive detention


The case shall be raffled and its records transmitted
to the judge to whom the case was raffled within 3
days from the filing of the information or complaint.

How Arraignment is Made


(a) In open court where the complaint or information
has been filed or assigned for trial
(b) By the judge or clerk of court
(c) By furnishing the accused with a copy of the
complaint or information
(d) Reading it in a language or dialect known to the
accused
(e) Asking the accused whether he pleads guilty or
not guilty

The accused shall be arraigned within 10 days from


the date of the raffle.
SPECIFIC RULES ON ARRAIGNMENT

(a) Trial in absentia may be conducted only after


valid arraignment.
(b) Accused must personally appear during
arraignment and enter his pleal; counsel cannot
enter plea for the accused.
(c) Accused is presumed to have been validly
arraigned in the absence of proof to the
contrary.
(d) Generally, judgment is void if accused has not
been validly arraigned.
(e) If accused went into trial without being arraigned,
subsequent arraignment will cure the error
provided that the accused was able to present
evidence and cross examine the witnesses of the
prosecution during trial.

When Arraignment Should be Held


General Rule: Accused should be arraigned within 30
days from the date the court acquires jurisdiction
over his person.
Exception: Unless a shorter period is provided for by
law:
(1) When an accused is under preventive detention,
his case should be raffled within 3 days from
filing and accused shall be arraigned within 10
days from receipt by the judge of the records of
the case (RA 8493 Speedy Trial Act)
(2) Where the complainant is about to depart from
the Philippines with no definite date of return, the
accused should be arraigned without delay (RA
4908)
(3) Cases under RA 7610 (Child Abuse Act), the trial
shall be commenced within 3 days from
arraignment
(4) Cases under the Dangerous Drugs Act
(5) Cases under SC AO 104-96, i.e. heinous crimes,
violations of the Intellectual Property Rights Law,
these cases must be tried continuously until
terminated within 60 days from commencement
of the trial and to be decided within 30 days from
the submission of the case

If an information is amended in substance which


changes the nature of the offense, arraignment on
the amended information is MANDATORY.
EXCEPT if the amendment is only as to form
See Teehankee, Jr. v. Madayag, GR No. 103102, March
6, 1992
WHEN SHOULD PLEA OF NOT GUILTY BE
ENTERED
INSTANCES WHEN A PLEA OF NOT GUILTY TO BE ENTERED
FOR THE ACCUSED [RULE 116, SEC. 1(C)]

(a) When the accused so pleaded


(b) When he refuses to plead
(c) When he makes a conditional or qualified plea of
guilt
(d) When the plea is indefinite or ambiguous
(e) When he pleads guilty but presents exculpatory
evidence

In case of failure of the OFFENDED PARTY to appear


despite due notice, the court may allow the accused
to enter a plea of guilty to a lesser offense which is
necessarily included in the offense charged with the
conformity of the trial prosecutor alone. [Sec. 1(f),
Rule 116; SC AM No. 03-1-09-SC Part B(2)]

If the accused who pleaded guilty presents


exculpatory evidence, his plea of guilt is withdrawn.
The judge must order the accused to plead again or
at least direct that a new plea of not guilty be
entered for him, otherwise there shall be no standing
plea for the accused. This is significant because if
there is no standing plea, the accused cannot invoke
double jeopardy later on.

In case of failure of ACCUSED to appear despite due


notice, there is NO ARRAIGNMENT IN ABSENTIA
[Nolasco v. Enrile (1985)] - The presence of the
accused is not only a personal right but also a public
duty, irrespective of the gravity of the offense and the
rank of the court.
There can be no trial in absentia without
first arraigning the accused; otherwise, the
judgment is null and void.

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CRIMINAL PROCEDURE

WHEN ACCUSED MAY ENTER A PLEA OF GUILTY


TO A LESSER OFFENSE [RULE 116, SEC. 2]

BAR OPERATIONS COMMISSION

Rationale: To proceed with more care where the


possible punishment is in its severest form; to avoid
improvident pleas of guilt.[People v. Samontanez
(2000)]

PLEA TO A LESSER OFFENSE DURING ARRAIGNMENT

At arraignment, the accused, with the consent of the


offended party and prosecutor, may be allowed by
the trial court to plead guilty to a lesser offense
which is necessarily included in the offense charged.

IMPROVIDENT PLEA OF GUILTY TO A CAPITAL


OFFENSE
DEFINITION

Plea without proper information as to all the


circumstances affecting it; based upon a mistaken
assumption or misleading information/advice.
[Blacks Law Dictionary]

PLEA TO A LESSER OFFENSE AFTER ARRAIGNMENT BUT


BEFORE TRIAL

After arraignment but before trial, the accused may


still be allowed to plead guilty to said lesser offense
after withdrawing his plea of not guilty. No
amendment of the complaint or information is
necessary.

General rule: An improvident plea should not be


accepted. If accepted, it should not be held to be
sufficient to sustain a conviction. [People v. De
Ocampo Gonzaga (1984)] The case should be
remanded to the lower court for further proceedings.

PLEA TO A LESSER OFFENSE AFTER TRIAL HAS BEGUN

After the prosecution has rested its case, a change of


plea to a lesser offense may be granted by the judge,
with the approval of the prosecutor and the offended
party if the prosecution does not have sufficient
evdiecne to establish the guilt of the accused for the
crime charged. The judge cannot on its own grant
the change of plea.

Exception: If the accused appears guilty beyond


reasonable doubt from the evidence adduced by the
prosecution and defense.
WHEN IMPROVIDENT PLEA MAY BE WITHDRAWN

At any time before judgment of conviction becomes


final, the court may permit an improvident plea of
guilty to be withdrawn and be substituted by a plea
of not guilty.

ACCUSED PLEAD GUILTY TO CAPITAL OFFENSE,


WHAT THE COURT SHOULD DO [SEC. 3, RULE
116]

The withdrawal of a plea of guilty is not a matter of


right of the accused but of sound discretion of the
trial court [People v. Lambino, 103 Phil 504, 1958]

DUTY OF THE COURT WHEN ACCUSED PLEADS GUILTY TO A


CAPITAL OFFENSE

(1) Conduct a searching inquiry into the voluntariness


and full comprehension of the consequences of the
pleas
(2) Require prosecution to present evidence to prove
the guilt and precise degree of culpability of the
accused
(3) Ask the accused if he desires to present evidence
in behalf and allow him to do so if he desires

The reason for this is that trial has already begun


and the withdrawal of the plea will change the
theory of the case and put all past proceedings to
waste. Moreover, at this point, there is a presumption
that the plea was made voluntarily
GROUNDS
FOR
SUSPENSION
ARRAIGNMENT [RULE 116, SEC. 11]

SEARCHING INQUIRY
[RULE 116, SEC.
3]
The procedure in Sec.