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i. What is the difference between jurisdiction and venue?

Jurisdiction refers to the power of the court to hear and decide a case; whereas
venue refers to the place where an action is to be instituted and tried. Jurisdiction, as a
rule may not be waived; whereas, venue being a matter of procedure may be waived.

ii. What is the so-called equity jurisdiction of the Supreme Court?

This signifies the inherent power of the Supreme Court to waive technical rules of
procedure in order to be able to rule on important substantive matters. In the case of
Magat vs. People, 20 SC RA 21, the Supreme Court elaborated on the term “In
exceptional cases, however, where through negligence or ignorance of counsel, the
properties, lives and future of accused persons may unjustly be prejudiced as when an
innocent person may be railroaded to prison or proof beyond reasonable doubt was not
adduced, we have waived the technical rules under our equity jurisdiction and in the
interest of substantive justice”. Note that in the cited case, the so-called technical rules
that were waived by the Supreme Court was with respect to the submission of proof of
service to the respondent court and to the adverse party.

iii. What is the purpose of the rule against splitting a single cause of action? What is the
test for determining whether or not a cause of action is single?

The rule against splitting a single cause of action is intended “to prevent repeated
litigation between the same parties in regard to the same subject of controversy; to protect
defendant from unnecessary vexation; and to avoid the costs and expenses incident to
numerous suits.” (1 C. J., 1107.) It comes from that old maxim nemo debit bis vexare por
una et eadem cause (No man shall be twice vexed for one and the same cause). And it
developed certainly not as an original legal right of the defendant, but as an interposition
of courts upon principles of public policy to prevent inconvenience and hardship incident
to repeated and unnecessary litigation. (1 C.J. 1107, cited in Bachrach vs. Icarangal,

iv. Albert a resident of Bohol files a complaint in the RTC of Cebu City against Becca, a
resident of Baguio City. The complaint contains the following causes of actions:

a. Recovery of possession and ownership of a parcel of land in Zamboanga City

with an assessed value of P100,000.00;
b. Rescission of contract with an agreed exclusive venue of action in Manila;
c. Quieting of title and recovery of possession and ownership of a land located
in Cebu City;
d. Specific performance of a contract executed in Zamboanga City;
e. Collection of a sum of money in the sum of P10,000.00; and
f. Unlawful detainer of a building in Bohol.

Was there a valid joinder of causes of actions?

Under Section 5 (b), Rule 2, cause of action (f) for unlawful detainer is not validly
joined in the complaint, the action being a special civil action.

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Under Sec. 5 ©, Rule 2, causes of action (a) to (e) were validly joined in the


1. Because cause of action (a) – recovery of possession and ownership of a

parcel of land in Zamboanga City with assessed value of P100,000.00 –
although it is within the jurisdiction of the MTC and its venue is in
Zamboanga City, is governed by Sec. 5 (c) of Rule 2; “When the causes of
action are between the same parties but pertain to different venues or
jurisdiction, the joinder may be allowed in the RTC provided one of the causes
of action fall within the jurisdiction of the said court and venue lies therein.
(See causes of action {c} and {d}.

2. The rescission of contract and quieting of title can also be joined although
there is an agreement as to the exclusive venue because the rules on venue are
not longer applicable when joinder of causes of action is involved.
(Unimasters vs. CA, 267 SCRA 759).

3. The specific performance of the contract and quieting of title can also be
joined by virtue of Sec. 5 [c], Rule 2.

4. The collection of a sum of money and quieting of title can also be joined
together although the collection of a sum of money is within the exclusive
jurisdiction of the MTC also by reason of Sec. 5 [c], Rule 2.

v. Amor, a resident of Baguio City files a complaint in the RTC of Baguio City against
Albert a resident of Zamboanga City on the following causes of action:

a. Collection of P40,000.00 on a promissory note “I” Albert and Amor executed

in Baguio City;
b. Collection of P50,000.00 on another promissory note “2” Albert and Amor
executed in Dagupan City where exclusive venue was agreed to be in San
Fernando City;
c. Collection of P12,000.00 on a promissory note “3” by Albert in favor of
Becca but assigned to Amor;
d. Collection of P45,000.00 for the rental of a commercial building in Olongapo
City; and
e. Foreclosure of real estate mortgage of property in Baguio City.

Was there a proper joinder of causes of action?

No. Reasons:

v.a. The foreclosure of the real estate in Baguio City cannot be joined with the other
causes of action because it is a special civil action. (Sec. 5 [c], Rule 2);

v.b. Causes of action a to d were properly joined although none of the causes of action
exceed P100,000.00, nevertheless the RTC would acquire jurisdiction under Sec. 5 [d]
Rule 2 because the aggregate amount exceeds P100,000.00;

v.c. The agreed exclusive venue in the collection of P50,000.00 promissory note would
seem not to apply as held in Unimasters vs. CA, 267 SCRA 579.

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vi. A plaintiff who resides in Zamboanga City files a suit in the RTC of Ozamiz City
against a defendant who is a resident of Baguio City and another defendant who resides
in Tacloban City on the following causes of action:

1. Quieting of title and recovery of possession and ownership of a land located in

Ozamiz City with an assessed value of P80,000.00 against defendant No. 1;

2. Rescission of a contract executed in Manila against defendant No. 1;

3. Recovery of possession and ownership of a parcel of land located in Cebu City

with an assessed value of P10,000.00 against defendant No. 2;

4. Specific performance of a contract executed in Cebu City against defendant

No. 2;

5. Unlawful detainer of a building located in Zamboanga City against both

defendants No. 1 and 2.

Was there a proper joinder of causes of action and parties?

Definitely under the present Rules, the cause of action for unlawful detainer
cannot be validly joined with the other causes of action because it is a special civil action.

Defendant No. 2 cannot be joined as party defendant because of Sec. 6, Rule 3

and Sec. 5 (a), Rule 2 – that is, no question of fact and law common to both defendants in
any of the causes of action.

Causes of action 1 and 2 (Rescission and quieting of title) can be validly joined
because it refers to only one defendant; and it was validly filed in Ozamiz because it
complies with jurisdiction and venue for real actions. (see Sec. 5 (c), Rule 2.

The complaint against defendant No. 2 should be dismissed because of the

improper joinder of parties and for lack of jurisdiction and improper venue in the causes
of action relative to recovery of possession of a parcel of land in Cebu; for lack of
jurisdiction and improper venue for specific performance of the contract executed in
Cebu; and lack of jurisdiction and improper venue for the collection of sum of money of

vii. Who is a real party-in-interest?

A real party-in-interest is the party who stands to be benefited or injured by the

judgment or the party entitled to the avails of the suit. (Sec. 2, Rule 3).

viii. What are the two requisites to constitute a taxpayer’s suit?

The two requisites of a taxpayer’s suit are the following:

1. That the public funds are disbursed by a public subdivision or instrumentality

and in so doing, a law is violated, or some irregularity is committed; and
2. The petitioner is directly affected by the alleged ultra vires act. (Anti-graft
League of the Philippines Inc. vs. San Juan, 260 SCRA 250 (1969).

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ix. What is forum shopping and when does it exist?

Forum-shopping or the act of a party against whom an adverse judgment has been
rendered in one forum, or seeking another (and possibly favorable) opinion in another
forum (other than by appeal or special civil action of certiorari), or the institution of two
(2) or more actions or proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition, has been characterized as a act
of malpractice that prohibited and condemned as trifling with the courts and abusing their
processes (Chemphil Export and Import Corporation vs. CA, 251 SCRA 257, 1995).
Forum-shopping is contumacious (Ortigas & Company Limited Partnership vs. Velasco,
234 SCRA 455, 1994), and it constitutes improper conduct which tends to degrade the
administration of justice. It has also been aptly described as deplorable because it adds to
the congestion of the heavily burdened dockets of the courts (Solid Homes, Inc. vs. CA,
271 SCRA 157, 1997; Gabionza vs.CA, 234 SCRA 192, 1994; Ruiz vs. Drilon, 209
SCRA 695, 1992).

Forum-shopping exist when, as a result of an adverse opinion in one forum, a

party seeks a favorable opinion (other than by appeal or certiorari) in another, or when he
institutes two (2) or more actions or proceedings grounded on the same cause, on the
gamble that one or the other court would make a favorable disposition (BENECO Inc. vs.
Flores, 287 SCRA 449, 1998; Laureano vs. Investment and Development Corporation vs.
CA, 272 SCRA 253, 1997; Prime Security Services Inc. vs. Drilon, 246 SCRA 439, 1995;
Millare vs. Montero, 246 SCRA 1, 1995; Silahis International Hotel, Inc. vs. NLRC, 225
SCRA 94, 1993).

x. Albert was sued for damages in the RTC of Benguet for failing to appear in a concert
sponsored by Amor. He received the summons and a copy of the complaint on January
13, 2007. He filed his answer on January 29, 2007. Immediately Amor filed a motion to
declare him in default which Judge Molitas granted. A MFR was filed and denied. Was
the judge correct in his decision?

No, the decision of the judge is not correct. The Rules provides that where the last
day to file an answer, pleading, motion or reconsideration falls on a Sunday, the motion
may be filed the next day (Manila Electric Company vs. CA, 271 SCRA 417, 1997).

Consequently, the answer was filed within the fifteen-day prescribed period to file
an answer. Hence, the decision declaring defendant in default is not correct.

Part I


Section 1. Title of the Rules – Shall be known and cited as the Rules of


>To prevent charivary; chaos or disorderly behavior.

>The Rules of Court does not supplant rights; or creates rights not existing under
the law.

>The Rules may be waived. (Ex. Rule on Venue, Rule 4, RRC).

Notes in Remedial Law

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Alvaro vs. De La Rosa

>The Rules of Court is indispensable to the administration of justice; speedy

disposition of cases.

Republic vs. Court of Appeals, 83 SCRA 478

>The Supreme Court held that the power to make rules carries with it the power
to suspend the rules.


>come from the word “Jus Decere”, which means the right to speak.

>Power and authority of the court to hear, try and decide a case; power to act on a
case. (Zamora vs. Court of Appeals, 83 SCRA _____).

>Granted by substantive law.

>Jurisdiction is vested in the court, not on the judge (Tagumpay vs. Mosqouso).

>If the court lacks jurisdiction, the only power it has is to dismiss the case.
(Azarcon vs. SB, 247 SCRA ____).

Exercise of Jurisdiction

>Resolution of all issues arising in a case.

Exclusive jurisdiction

> Jurisdiction of a particular body or tribunal over an action to the exclusion of all

Concurrent jurisdiction
> one where the choice/option is given to the person initiating the action. (Ex.
Nullity of Marriage- RTC/CA/SC)

>Jurisdictional limitations – in excess of jurisdiction, the act is void (Mendoza vs.


>As a general rule, the jurisdiction of a court is not affected by a new legislation
transferring its jurisdiction to another body, except if the law specifically provides
for its retroactivity. (Oway vs. Mercado, 1990 case).

>Jurisdiction is conferred by the facts alleged in the complaint and the law
applicable at the time f its filing. (De La Cruz vs. Moya, 186 SCRA ____).

> Lack of jurisdiction may be raised at any stage of the proceedings before the
same court, or on appeal. (Aragon vs. CA, March 26, 1987).

>A motion to dismiss/answer cannot divert the court of its jurisdiction. If a

Forcible Entry case/ Unlawful Detainer case (Ejectment cases) is filed with the
Regional Trial Court instead of the Municipal Trial Court, then a special
appearance to question the jurisdiction of the RTC is required. Multi-National vs.

>Lack of jurisdiction may be raised on appeal or even after finality of judgment;

the judgment is void and has no legal and binding effect. (Croscoza vs. CA, ___).
Notes in Remedial Law
Jam/SPO ‘07
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>A null and void judgment can be directly/ collaterally attacked. (Estoesta vs. CA,
173 SCRA 203).

Residual jurisdiction

>The power of the court to issue orders or perform acts after the perfection of an
appeal from its decision, but prior to the transmittal of the original records of the case to
the appellate court, such as the following:

1. To approve compromise between the parties to avoid further


2. Order execution pending appeal;

Forcible Entry Cases = Perfect a notice of appeal within the 15-day

period to appeal; files a supersedeas bond; deposit of rentals.

Labor Case = Filing of a Notice of Appeal within 10-day period to

appeal; files a Memorandum of Appeal; and files a Bond double the
amount granted by the Labor Arbiter.

3. Allow withdrawal of appeal by the parties;

4. Issue and order for the protection/preservation of the rights of the

parties which are not to be taken on appeal. Ex. Support pendent elite

5. Approve the appeal filed by a party.

Doctrine of Primary Jurisdiction

>The courts may refer to an administrative body matters within their competence
and jurisdiction considering the special knowledge and expertise of the latter before the
court will render relief or decision.


1. There must be an actual case or controversy – clash of rights pertaining to

different parties in a case;
2. the issue of constitutionality must be raised at the earliest opportunity;
3. Filed by the proper parties (party is affected by the constitutional question);
4. The resolution of the constitutional question must be necessary to the
determination of the legal issues involved. (Domas vs. COMELEC, 95 SCRA


>Inherent power of the Supreme Court to waive the rules of procedure in order to
decide on substantial matters of the controversy which is applicable only on
exceptional cases.

Court of Appeals

>Has the authority to receive factual issues of cases falling within its original
jurisdiction to be completed within three (3) months.

Notes in Remedial Law

Jam/SPO, 07
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>An adjective or branch of law that enforces rights, or provides for procedures to
obtain redress for their violation.

>Provides for a method of conducting proceedings.

a. Pleadings – are the written statements of the respective claims and

defenses of the parties submitted to the court for appropriate judgment.
(Sec. 1, Rule 6, RRC).

b. Practice - rules governing the conduct of a case from start to finish

(until there is a final judgment).

c. Evidence – the means sanction by the Rules of ascertaining in a

judicial proceeding the truth respecting a matter of fact. (Sec. 1, Rule
128, RRC).

SUBSTANTIVE LAW = Creates, defines and regulates rights.

>Public remedy = remedy in favor of State against a private individual.

>Private remedy = remedy in favor of a private individual against another private


SECTION 2. In what courts applicable. – Shall apply in all the courts,

except as otherwise provided by the Supreme Court.

The Rules of Court does not apply to court martial proceedings. (Magno vs. De
Villa, 191 SCRA 663 {1993}).

Technical rules of procedure are not binding in labor cases. (Panlilio vs. CA, 257
SCRA 53).

SECTION 3. Cases governed – These Rules shall govern the procedure to

be observed in actions, civil or criminal, and special proceedings.

(a) 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.

A civil action may either be ordinary or special. Both are governed by the
rules for ordinary civil actions, subject to the specific rules prescribed for a
special civil action.

-A civil action is primarily for compensation/remedial in nature. (PP vs. Godoy,

246 SCRA 64).

(b) A criminal action is one by which the State prosecutes a person for an act or
omission punishable by law.

-A criminal action is primarily for purposes of punishment.

(c) A special proceeding is a remedy by which a party seeks to establish a status,

a right, or a particular fact.

Notes in Remedial Law

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-SPECIAL PROCEEDINGS – Is a remedy by which a party seeks to
establish a status, a right, or a particular fact. (Pacific Bank Corp. Employees
Association vs. CA, 248 SCRA 292; Sec. 3 {c}, Rule 1, RRC).

SECTION 4. Cases where the Rules of Court are not applicable: (NILE C)

1. Naturalization proceedings;
2. Insolvency proceedings;
3. Land registration proceedings;
4. Election cases; and
5. Cadastral proceedings.(Sec. 4, Rule 1, RRC).

SECTION 5. Commencement of action.

>Civil Action – By the filing of the original complaint in court.

>additional defendant is impleaded in a later pleading, the action is commenced
with respect to him on the date of the filing of such later pleading, irrespective of whether
the motion for its admission, if necessary, is denied by the court.

SECTION 6. CONSTRUCTION. The Rules shall be liberally construed in

order to promote their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding.

>Object of Procedure - justice; speedy disposition of cases.


SECTION 1.Ordinary civil actions, basis of – must be based on a cause of


SECTION 2. Cause of action defined – Is the act/omission by which a

party violates a right of another.

> Not frivolous, not unwarranted, has legal factual basis.


1. Legal right of the plaintiff;

2. Obligation on the part of the defendant to respect such legal right of the
plaintiff, or not to violate such right; and
3. The act/omission of the defendant violated the legal right of the plaintiff/ such
act or omission constitutes a breach of an obligation. (Solid Homes vs. CA,
237 SCRA; Virata vs. SB, 272 SCRA 661).

 Complaint cannot be cured without a right of action (Lao vs. CA, Feb. 17,

 An Action does not include non-judicial proceedings (EJ Engineering Corp.

vs. CA, 1997).

*RIGHT OF ACTION – Right of plaintiff to bring an action and to prosecute that action
until final judgment/action. There must be a valid cause of action.

*The act/omission violating the legal right of another is the operative reason/act for a
right of action to exist.
Notes in Remedial Law
Jam/SPO, 07
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*The statements/allegations in the complaint is the determining factor in the existence of
a cause of action/determines the sufficiency of a cause of action.

*The cause of action arises from the time a right is violated. (De Los Reyes vs. CA, 285
SCRA 81).

*When to commence/enforce a cause of action – anytime, provided within its prescriptive


*Cause of action is of public interest – the remedy is a taxpayer’s suit. (KilosBayan vs.
Morato, 246 SCRA 540).

 No right of action until there has been a wrong committed. (De Guzman vs.
CA, 192 SCRA 507).

>Action refers to physical acts; anything capable of being violated and prosecuted
(Pomeroy case).

>Allegations in the complaint and not the relief sought will determine the
judgment (Caro vs. Roldan).

SECTION 3. One suit for a single cause of action- A party may not institute
more than one suit for a single cause of action.

SECTION 4. Splitting a single cause of action; effect of – If two or more

suits are instituted on the basis of the same cause of action, the filing of
one or a judgment upon the merits in any one is available as a ground for
the dismissal of the others.


“Whether or not the wrong or redress is the same in both cases”. If there is
only one delict or wrong, there is a single cause of action, even if there are
several rights violated and all of those rights violated must be prayed for
in one complaint but the delict or wrong must be violative of one contract or
transaction, for if there are separate and distinct contracts or transactions
between the parties, violation of each contract or transaction would
constitute a separate cause of action. (Landhal, Inc., vs. Monroy,L-6991,
Nov. 29, 1957).

Identity of causes of action – Same evidence is necessary to sustain the other cause of
action. (Feliciano vs. CA, 287 SCRA 61).

A breach committed by defendant resulting to several causes of action requiring a

uniform evidence > several cases. (Blossom vs. Manila gas Corporation).


1. Motion to Dismiss – on the ground of litis pendentia, and

2. Motion to Dismiss – Splitting a single cause of action.

Notes in Remedial Law

Jam/SPO, 07
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Litis Pendentia; Requisites:

1. Same parties in both actions;

2. Identity of rights asserted and relief prayed for (founded o the same

3. Judgment rendered in one would amount to res judicata to the other

case. (FNCV vs. Evarte).

Res Judicata; Elements:

1. Final judgment;

2. Rendered by a court of competent jurisdiction (parties and subject


3. Judgment on the merits; and

4. In the two cases, there are

a. Identities of parties (not total identities of parties);

b. Identities of subject matter; and
c. Identities of causes of action

LAW OF THE CASE – refers to the controlling legal rule/doctrine/decision between the
same parties. (Mangoma vs. CA, Feb. 1, 1995).

RULE 5. Joinder of causes of action – A party may in one pleading assert,

in the alternative or otherwise, as many causes of action he may have
against an opposing party, subject to the following conditions:

(a) The party joining the causes of actions shall comply with the
rules on joinder of parties (JOINDER OF PARTIES);

(b) The joinder shall not include special action or actions governed
by special rules (JURISDICTION);

© Where the causes of action are between the same parties but
pertain to different venues or jurisdictions, the joinder may be
allowed in the RTC provided one of the causes of action falls within
the jurisdiction of said court and the venue lies therein (VENUE); and

(d) Where the claims in all the causes of action are principally for the
recovery of money, the aggregate amount claimed shall be the test of

>Recovery of a sum of money>aggregate amount>TOTALITY RULE to

determine jurisdiction. (Bolig vs. Sulpicio Lines May 19, 1989).

*Common right sought to be protected and both cases falls within the jurisdiction of both

*Statutory intent on joinder of causes of action – courts to unclog their


Notes in Remedial Law

Jam/SPO, 07
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SEC. 6. Mis joinder of causes of action – Misjoinder of causes of action is
not a ground for dismissal of an action. A misjoined cause of action may,
on motion of a party or on the initiative of the court, may be severed and
proceeded with separately.

>May proceed with the trial of the causes of action separately.

>Causes of action may be joined cumulatively or alternatively; but joinder of causes of
action is not allowed in special proceedings/special civil actions. (Rizal Surety vs. Manila
Railroad Company).

** Case/complaint deemed officially filed:

1. Only upon payment of prescribed docket fees (Manchester vs. CA, 1997)
> Prevailing rule

2. Payment of docket fees within reasonable time but within the prescriptive
period. >initiatory pleading


Sec. 1. Who may be parties; plaintiff and defendant.

=Natural persons, juridical persons, or entities authorized by law. (Iron vs. CA,
249 SCRA ___).

Plaintiff – claiming party; counter-claimant; cross-claimant; third (fourth, etc.)-

party plaintiff.

Defendant – original defending party; the defendant in a counterclaim; cross-

defendant; third (fourth, etc.) party defendant.

Corporation De facto – cannot intervene in a suit/ made a party to a suit/must be

registered with the SEC.

RAMOS vs. CA, 249 SCRA 34 (1997)

= Only the Provincial fiscal/provincial attorney/municipal attorney may represent

a municipality in a suit and it cannot hire a private lawyer. However, the municipality
may copy the work of a private lawyer provided, the private lawyer does not receive
compensation from the municipality.

Sec. 2. Parties in Interest – A R.P.I. is the party who stands to be

benefited or injured by the judgment in the suit, or the party entitled to the
avails of the suit. Unless otherwise authorized by law or the Rules, every
action must be prosecuted and defended in the name of the real party in

-material interest in the issues/law/decree/judgment/ must not be a mere

expectancy/future or contingent interest. (Fortich vs. Corona).
-R.P.I. – Plaintiff - One that has a legal right in the issues of the action. Defendant
– correlative duty to respect such right. (Chiongbian vs. Rogelio).

CORPORATIONS – R.P.I.- implead all registered owners of shares. (Republic vs. SB,
266 SCRA 515).

DONATION – R.P.I. – donor and his heirs (Garido vs. CA., 256 SCRA 350).

Notes in Remedial law

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OFOSA vs. FACTORAN, 224 SCRA 792 – R.P.I. – Action to sue in behalf of
children, all interested in inter-generational activity.

ESTATE – R.P.I. – executor/administrator of the estate.

MINOR – R.P.I. – implead the minor and the guardian.

INDISPENSABLE PARTY – one without whom the action cannot be fully determined;
must be impleaded to have final adjudication of issues in a case.

REAL ACTION – is an action affecting title to, or for recovery of possession, or for
partition, or condemnation of, or foreclosure of mortgage on real property. (Hernandez
vs. Rural bank of Lucena, 81 SCRA 75).

All other actions are PERSONAL ACTIONS (by the rule on exclusion).


-based on privity of real estates; ex: action -based on privity of contracts or for the
to foreclose a mortgage. recovery of sum of money. Ex: action to
cancel the annotation of the mortgage in the
title of the land.

ACTION IN REM – one instituted against the whole world. Ex: Land registration
proceedings/ probate of a will.

ACTION IN PERSONAM – one filed against a definite defendant. It is intended to

subject the interest of a defendant on a property to an obligation or lien. (Venue: place of
residence of plaintiff).

QUASI-IN-REM – subject interest in a particular property and conclusive only between

the parties.

Medina vs. CA, 206 SCRA – An action to redeem real property is a real action and
the venue is the place where the real property is located.


1. Ultimate Objective Test - purpose sought may determine the nature of the
action. (Tenorio vs. Pano, 146 SCRA 74).

2. Allegations and Prayer Test – allegations of facts and the relief prayed for may
be determinative of the nature of the action. (Rone vs. Claro, 91 Phil. 250;
Cultura vs. Tapucar, 140 SCRA 311).

LOCAL ACTION – one founded on the privity of estates only and there is no privity of
contracts. (De La Cruz vs. Seminary of Manila, 18 Phil. 330).

TRANSITORY ACTION - one founded on the privity of contracts between the parties.


-One right/ cause of action belonging to many persons.

-Common interest to all persons affected. (Nena Supermarket vs. NLRC)

Notes in Remedial Law
Jam/SPO, 07
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-Common and general interest to others similarly situated. (cadalin vs. CA, 238
SCRA 792).


1. Subject matter of the controversy – of common or general interests to many

persons similarly situated; and

2. Persons are so numerous as to make it impracticable t bring them all before

the court; and

3. Common interest based on the circumstances of the case pertaining to many



Venue – refers to the place of trial, geographical location where a suit may be filed.
(Dacuycuy vs. RTC).

- venue must be seasonably challenged/ timely objected to in a motion to

dismiss, otherwise it is deemed waived.
- Since it is a litigated motion, it must comply with the 3-day notice rule (must
be calendared for hearing).

MORTGAGES - in the RTC that has jurisdiction of the place where the property is

ISSUANCE OF LOST TITLES – RTC of the place where the property is situated and
the action cannot be consolidated because the action pertains to real properties located in
different paces.
CORPORATION - can sue only in the place of its principal business/office; but can be
sued in another place at the option of the plaintiff.

WAIVER OF VENUE - it must be categorical, clear and unequivocal; to be raised in a

motion to dismiss which must be filed within the 15 day period to file an
answer/responsive pleading.

EXCEPTION: a party may question improper venue at the time of submitting a

memorandum since trial did not yet commenced.



RULE 7. Parts of Pleading

- A pleading should be liberally construed; technical rules shall not govern (Viray
vs. CA, 191 SCRA 134).

- A pleading should be within the limit of propriety, materiality and sobriety

(Paredes vs. IAC).

- A pleading should contain a concise statement of facts; include factual issues.

(Tantuico vs. CA).

Notes in Remedial Law

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a) The Supreme Court held that lack of TCT No. of an affiant is a ground for the
dismissal of the pleading.

A pleading that lacks the PTR No. or Roll No. of the Notary Public/lawyer is a
mere scrap of paper.

Supreme Court Circular No. 28-91-31 requires that verification is now mandatory
for every pleading.

That affiant, after having been sworn to in accordance with law, depose and says:

1. That he is the plaintiff in the above-entitled case;

2. That he has caused the above complaint to be prepared and has read
and knows the contents thereof;
3. That the allegations therein are true of his own knowledge.

A verification must be signed by all the plaintiffs.

b) Certification against forum-shopping

 The plaintiff or principal party shall certify under oath in the complaint or
other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith:

a) that he has not therefore commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or claim
is pending therein;
b) if there is such other pending action or claim, a complete statement of
the present status thereof; and

c) if he should thereafter learn that the same or similar action or claim

has been filed or is pending, he shall report that fact within five (5)
days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.

It is a requirement of all pleadings; obligatory requirement but not a jurisdictional

requirement; may be relaxed for purposes of substantial compliance with social justice.

The question of adequacy of the parties who signed the pleading, plaintiffs being
residents of different provinces may give rise to an amended complaint.

C) All evidences are based on authentic documents; real or true documents are not
attached in the pleadings because it might be lost.


SECTION 1. Defenses and objections not pleaded – (in a motion to dismiss or in the
answer) are deemed waived.

-motion shall state that it is not intended for delay.

Notes in Remedial Law

Jam/SPO, 07
Page 15
Instances when the court may dismiss the claim when it appears from the
pleadings or the evidence on record that:

1. court has no jurisdiction over the subject matter; or

2. there is another action pending between the same parties for the same cause;
3. that the action is barred by a prior judgment; or
4. that the action is barred by a statute of limitation.

SECTION 2. Compulsory counterclaim or cross-claim not filed within the reglementary

period – it is barred.

SECTION 3. Declaration of Default – defendant fails to answer within the time allowed
under the Rules (15 days from receipt of the complaint).

– Should file a motion to declare defendant in default, with notice to the latter
and proof of such failure to answer.
- Hearing is mandatory; No more ex-parte motion to declare defendant in
- Plaintiff may be declared in default if he fails to file an answer to a permissive
counterclaim interposed by the defendant.

Court - shall render judgment granting the claimant/plaintiff such relief as his pleading
may warrant, unless the court in its discretion requires the claimant to submit evidence.

(a) Effect of order or default – party in default is entitled to notice of

subsequent proceedings but not to take part in the trial.

-Failure to answer does not imply an admission of the facts and causes of
action of the plaintiffs, because the plaintiffs are required to adduce evidence
to support their allegations. (Vlasons Enterprise Corp. vs. CA, et. al., 108
SCAD 731, G.R. No. 121662-64,July 6, 1999).

(b) Relief from order of default – At anytime after notice but before judgment
> party in default to file a motion under oath to set aside the order of default.

GROUND: failure to answer was due to fraud, accident, mistake or excusable

negligence and that he has a meritorious defense. (FAME + Meritorious

© Effect of partial default – pleading asserting a claim state a common cause

of action against several defending parties, some of whom answer and the others
fail to do so, court to try the case against all upon the answer thus filed and render
judgment upon the evidence presented.

(c) Extent of relief to be awarded – shall not exceed the amount or be

different in kind from that prayed for nor award unliquidated damages.

(d) Where no defaults allowed.

1. action for annulment of marriage, or

2. declaration of nullity of marriage, or
3. action for legal separation

Notes in Remedial Law

Jam/SPO, 07
Page 16
 The court shall order the prosecuting attorney to investigate whether or not a
collusion between the parties exists, and if there s no collusion, to intervene
for the State in order to see to it that the evidence submitted is not fabricated.

- No answer filed within 15 days - file a motion for a judgment by default –

plaintiff to present evidence ex-parte; motion for a judgment on the pleadings.


1. Motion to set aside the order of default, at anytime before judgment on

the ground of FAME + Meritorious Defense;
2. Motion for New Trial, if there was a judgment;
3. Appeal the judgment; or
4. Petition for Relief from Judgment, if the judgment is already final.

>Appeal or Petition for Relief from an order of default on the ground of

FAME, to lift the order of default.

>Equity assists ignorance not negligence/carelessness

>The law protects those vigilant and those who are not sleepy of their


SECTION 1. Amendments in general.

HOW? = By adding or striking out an allegation or the name of any party, or

=by correcting a mistake in the name of a party or a mistaken or inadequate

allegation r description in any other respect.


= So that the actual merits of the controversy may speedily be determined without
regard to technicalities, and in the most e4xpeditious and inexpensive manner.

= There must be a motion to admit amended complaint; being a litigated motion,

it must be set for hearing.

SECTION 2. Amendments as a matter of right – A party may amend his pleading

once as a matter of right at anytime before a responsive pleading is served or, in the case
of a reply, at anytime within ten (10) days after it is served.

- Amendment of the complaint prior to the filing of an answer, may introduce

new causes of action, but summons together with the amended complaint must
be served upon the defendant. (Atkins Kroll and Co., vs. Domingo, 44 Phil.

- Defendants already filed a Motion to Dismiss >Plaintiff may amend his

complaint and there is no need to issue summons to the defendant. (Gumabay
vs. Baralin, 77 SCRA 258).

Salvador vs. Frio, 33 SCRA 315

-Amendment is sought after dismissal but before the finality of the

judgment/order; Defendant to file a motion for leave to admit amended pleading.
Notes in Remedial Law
Jam/SPO, 07
Page 17
Distinctions between amended and supplemental pleadings:

-Unlike in the amended complaint, the original complaint exists side by side with
the supplemental complaint. The supplemental pleadings merely served to aver
supervening facts which were then not ripe for judicial relief when the original pleading
was filed. Supplemental pleadings are meant to supply deficiencies in aid of the original
pleading and not to dispense with the latter.

SECTION 3. Amendments by leave of court >Substantial amendments.

1. Amendments may be refused by the court if it is intended for delay. Orders of

the court upon matters provided in this section shall be made upon motion filed in
court, and after notice to the adverse party, and an opportunity to be heard.

2. The cause of action or defense is substantially altered. (Guiang vs. Nadayag,

214 SCRA 355, 1992).

SEC. 4. Formal Amendments - may be raise/made at any stage of the action, on

motion of the party, or upon the initiative of the court.

-A motion for an extension of time to file a pleading/answer cannot be

automatically granted by the court.

SECTION 5. Amendment to conform to or authorize presentation of

evidence – When issues not raised by the pleadings are tried with the express or
implied consent of the parties, they shall be treated in all respects as if they had been
raised in the pleadings. Such amendment of the 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 at any time, even after judgment; but failure to amend does not affect the result
of the trial of these issues. 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.

SECTION 6. Supplemental pleadings. – Upon motion of a party the court may,

upon reasonable notice and upon such terms as are just, permit him to serve a
supplemental pleading setting forth transactions, occurrences or events which have
happened since the date of the pleading sought to be amended. The adverse party may
plead thereto within ten (10) days from notice of the order admitting the supplemental

-A party who fails to answer a supplemental pleading may be declared in default,

except when the answering party has already traversed and joined the allegations
in the answer.

SECTION 7. Filing of amended pleadings – When any pleading is amended, a new

copy of the entire pleading, incorporating the amendments, which shall be indicated by
appropriate marks, shall be filed.

SECTION 8. Effect of amended pleadings – An amended pleading supersedes the

pleading that it amends. However, admissions in superseded pleadings may be received
in evidence against the pleader; and claims or defenses alleged therein not incorporated
in the amended pleading shall be deemed waived.

Notes in Remedial Law

Jam/SPO ,07
Page 18

SECTION 1. Answer to the complaint – Defendant shall file his answer within
fifteen (15) days after service of summons, unless a different period is fixed by the court.

>This contemplates the personal filing of an answer to the complaint.

 Answer filed by mail - date of posting at the postal office is the date of filing.
 The court did not receive the answer sent by defendant through GRS/LBC’s,
there is no valid service of pleading, especially if not operated by the

 Proof: Registry Return Receipt + affidavit of proof of service

- identify the sender, position, documents etc.;

- state/identify the number of copies sent;
- identify where the copies were sent.

SECTION 2. Answer of a defendant foreign private juridical entity – Service

of summons is made on the government official designated by law to receive the same,
answer shall be filed within thirty (30) days after receipt of summons by such entity.

SECTION 3. Answer to amended complaint.

-Amended complaint as a matter of right – defendant to answer within fifteen

(15) days after being served with a copy thereof.

-Amended complaint not a matter of right – defendant to 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.

- Rule applies to: answer to an amended counterclaim, amended cross-claim,

amended third (fourth, etc.), and amended complaint-in-intervention.

SECTION 4. Answer to cross-claim or counterclaim. – must be answered within

ten (10) days from service.


1. Condemnation proceedings (Phil. Oil Dev’t. Co., Inc. vs. Go, L-4007,
January 22, 1953);
2. Where the answer is a mere repetition of the allegations in the
complaint (Navarro vs. Bello, 102 Phil. 1019);
3. If the issues raised are inseparable from those interposed in the answer
(Sarmiento vs. Juan, 120 SCRA 403, 1993).


>In cases where service by publication is made, the 60-day period to

answer is applicable:

1. Action to establish the status of the plaintiff and the defendant is


Notes in Remedial Law

Jam/SPO, 07
Page 19
2. Action concerning the property of the defendant located in the
Philippines and the defendant is a non-resident;

3. The purpose of the action is to exclude the defendant from a

claim in the Phils. and defendant is a non-resident.

SECTION 5. Answer to third (fourth, etc.) party complaint - same rule as the
answer to the complaint under Section 1 of the Rule.

SECTION 6. Reply – may be filed within ten (10) days from service of the pleading
responded to.

SECTION 7. Answer to supplemental complaint - must be answered within ten

(10) days from notice of the order admitting the supplemental complaint, unless a
different period is fixed by the court. The answer to the complaint shall serve as the
answer to the supplemental complaint if no new or supplemental answer is filed.

SECTION 8. Existing (compulsory) counterclaim or cross-claim- that a

defending party has at the time he files his answer shall be contained therein.

SECTION 9. Counterclaim or cross-claim arising after answer – either

matured or was acquired by a party after serving his pleading may, with the permission of
the court, be presented as a counterclaim or a cross-claim by supplemental pleading
before judgment

SECTION 10. Omitted counterclaim or cross-claim – Pleader fails to set up

through oversight, inadvertence, or excusable negligence, or when justice requires, he
may, by leave of court, set up the counterclaim or cross-claim by amendment before


>Noncompliance within 10 days from receipt of the order, the pleading will be
stricken out by the court, or the portions thereof to which the order was directed, or make
such other orders as it deems just. (Sec. 4).

>Motion for a bill of particulars interrupts the period within which to answer, but
not less than five (5) days in any event. (Tan vs. SB, G.R. No. 84195, Dec. 11, 1995).

RULE 13. Filing and Service of Pleadings, Judgments and Other Papers

>By filing them personally with the Clerk of Court, or by sending them by
registered mail. (Section 1, Rule 13).

>The date of mailing the motion, pleading, or any other papers or payments,
deposits, as shown by the post office stamp on the envelope, or the registry
receipt, shall be considered as the day of their filing, payment or deposit in court.
The envelope shall be attached to the record of the case. (Sec. 3[2]).

>Registered mail – date of mailing is the date of filing/service. (Sec.5)

Notes in Remedial Law

Page 20

Service of Pleading
> Act of providing the other party with a copy of the pleading/paper.

a) Personally; or

i. Delivering personally a copy to the attorney/counsel;

ii. Leaving it in his office with his clerk or with a person having
charge thereof; or
iii. Leaving a copy at the party’s or attorney’s residence, if known,
with a person of sufficient discretion to receive the same, if no
person is found in his office or if his office is not known. (Sec. 4,
Rule 13).

b. By registered mail.
>Service by mail is complete upon actual receipt by the addressee;
failure to claim the mail from the post office within five (5) days from date of first
notice of the postmaster, then service shall take effect upon expiration of such
time [constructive service of pleadings, etc.]. (Mata vs. Legarda, 7 SCRA 227).

Proof: > Notice was sent to the addressee;

> Delivered to and personally received by the addressee;
-certification from the postmaster/testimony of mailman.

Ordinary Mail = Service of pleading is complete upon the expiration of ten (10) days,
unless the court otherwise provides. (Section 10, Rule 13).

Mode of service, if service cannot be made personally or by mail:

>It should be made by delivering the copy to the Clerk of Court, with proof of
failure of both modes of service, whether personally or by mail. The service is complete
at the time of such delivery. (Sec.6; Mellon Bank, N.A. vs. Magsino, 1990 SCRA 636).


SUMMONS = Writ/process issued and served upon defendant in a civil action for the
purpose of securing his appearance therein to acquire jurisdiction over the him
(defendant). (Ballentine’s Law Dictionary, 2nd Ed., p. 1250).

Either by:

>Personal service;
>Substituted service; and
> By publication.

 with leave of court;

 Instances:

i. Where the action affects the personal status of the plaintiff;

ii. When the action relates to, or the subject of which is, a party within the
Phils., in which the defendant has or claim a lien or interest, actual or
iii. When the relief demanded in such action consists, wholly or in part, in
excluding the defendant from any interest in the property located in the Phils.;

Notes in Remedial Law

Page 21
iv. When the defendant non-resident’s property has been attached within the
Philippines. (De Midgely vs. Fernandos, 64 SCRA 23[1975]; The Dial Corp.
vs. Soriano, 161 SCRA 737 [1988].

HOW? = By leave of court.

a) Personal service under Sec. 6

= handing a copy to the defendant in person; or
=if he refuses to receive and sign for it, by tendering to him.

b) By publication in a newspaper of general circulation in such

places and for such time as the court may order.
=a copy of the summons and order of the court shall be sent
by registered mail to the last known address of the defendant;
= in any other manner the court may deem sufficient.
= defendant to answer within reasonable time as specified by
the court its order, which shall not be less than sixty (60)
days after notice.


Spouses Miranda vs. CA, Feb. 23, 2000

-If there is no proper service of summons, the court obtained no valid jurisdiction.
Hence, no valid judgment may be rendered by the court.

SEC. 8.

Millenium vs. Tan, February 28, 2000

>Corporation = President; manager; secretary; cashier; agent; director.

 Substantial compliance may be alleged, if:

-actual receipt by the person served;

-person served must sign the Sheriff’s return;
-actual receipt of summons by the corporation must be proved that it was
actually served to it.

Summons by publication – must be approved by the court.

-file motion to send summons by publication;
-publication in a newspaper of general circulation; and
-within the number of days stated in the order of the court.
The defendant’s voluntary appearance in the action shall be equivalent to
service of summons. The inclusion in a motion to dismiss of other grounds aside
from lack of jurisdiction over the person of the defendant shall not be deemed a
voluntary appearance.
i. Voluntary appearance of counsel;
ii. A motion, by answer, or simple manifestation (Flores vs.
Zurbito, 37 Phil. 746);
iii. A telegraphic motion for postponement (Punzalan vs. Papica,
Feb. 29, 1960);
iv. Filing a motion for dissolution of attachment;
v. Failure to question the invalid service of summons (Navale vs.
CA, 68 SCAD 445, G.R.No.109957, Feb. 20, 1966).
Notes in Remedial Law
Page 22

 General Rule: Except for lack of jurisdiction, when you file a motion to
dismiss, you have deemed submitted to the jurisdiction of the court.

 If the motion to dismiss on the ground of lack of cause of action is DENIED,

no motion to dismiss on the ground of lack of jurisdiction of the court can be

 Motion to dismiss must be with special appearance to question the jurisdiction

of the court.

 A motion to dismiss is a litigated motion; must comply with Secs. 4, 5 @ 6 of

Rule 15.


- By filing an answer, a motion to dismiss cannot be filed.


- The court may dismiss the case motu proprio for want of jurisdiction.


- An Ejectment case was filed with the RTC, trial proceeded and a final
judgment was rendered by the court.

- Defendant questioned the jurisdiction of the RTC before the Supreme Court.

- Case/suit cannot be dismissed on the ground of lack of jurisdiction, but on

estoppel by laches.

MOTION TO DISMISS – There is an implied admission that summons was validly

served to the party/defendant that filed the motion to dismiss.

- Motion to dismiss on the ground of lack of jurisdiction is not waivable but

must be seasonably filed.
- Motion to dismiss for failure to state a cause of action on insufficiency of
factual basis of the action/ no ground whatsoever to proceed against
-Remedy: Motion for a bill of particulars/motion to dismiss.

-Motion to dismiss on the ground of prescription – dismissal with prejudice.

-Motion to dismiss on the ground of res judicata - principle of public policy; there
should be an end to every litigation; an individual shall not be vex twice for the
same cause.

Republic vs. CA, February 3, 2000 – A final judgment on the merits rendered by a
court of competent jurisdiction conclusive of the rights of the parties will
constitute an absolute bar to subsequent actions involving the same action, same
demand, and same cause of action.

Notes in Remedial Law

Jam/SPO, 07
Page 23
Judgment on the merits = determines the rights and liabilities of the parties based on the
ultimate facts.

- Motion to dismiss on the ground of litis pendentia- pending case, similar

nature; same parties; requirement of verification.

- Forum-shopping – It is a ground for the dismissal of the case; non-compliance

cause administrative liability of the lawyer; must be set for hearing because it
is a litigated motion. No forum-shopping if technical matters leave the factual
basis of the case hanging.


1. Article 151, Family Code – Lack of cause of action/prematurity – No earnest

efforts towards a compromise for suits between members of the same family.

2. Republic Act 7160, as amended – Non-referral of the case/action before the

appropriate Lupon; non-compliance will not affect the jurisdiction of the court/
court will refer it back to the appropriate Lupon/certification to be issued by the
Lupon Secretary.

3. Failure to exhaust administrative remedies – A direct action in court without

exhausting administrative remedies is premature warranting the dismissal of the
case. (Republic vs. SB).

4. Laches – effects of delay/unreasonable delay/stale demand – failure or neglect for

an unreasonable or unexplained length of time to do what should have been done
in the exercise of due diligence. There is presumption of abandonment. (Espano
vs. CA, 268 SCRA ).


=Application for relief other than by pleading (Sec. 1).

SECTIONS 4, 5 @ 6 – Non-compliance thereof, the motion is a mere scrap of paper; 3-

day notice rule must be complied with. (Basco vs. CA, Feb. 29, 2000).

Exception: When petitioner is sentenced to suffer reclusion perpetua and his

conviction will attain finality, the notice of appeal may be filed by the defense on the 14 th
or 15th day of the period to appeal.

Obando vs. Figueras

-once you filed a pleading, you have deemed submitted to the jurisdiction of the


*By the plaintiff - before service of an answer/motion to dismiss.

Pre-trial is mandatory – absence is a ground for default/dismissal of the action.

- Pre-trial brief – should be submitted 3-days before the date of pre-trial stage.


Notes in Remedial Law

Page 24
RULE 19. INTERVENTION = (MUST): Motion for leave to intervene

Any person who has a legal interest in the matter in litigation, or in the success of
either of the parties, or an interest against both,, or is so situated as to be adversely
affected by a distribution or other disposition of the property in the custody of the court
or an officer thereof may, WITH LEAVE OF COURT, be allowed to intervene in the
action. (Sec. 1, Rule 19).

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. (Francisco, Revised Rules
of Court, 1973 Ed., p.720).


i. Legal interest in the matter in controversy; or

ii. Legal interest in the success of either of the parties; or
iii. Legal interest against both; or
iv. So situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof;
v. Intervention will not unduly delay or prejudice the adjudication of the
rights of the original parties; or
vi. Intervenor’s rights may not be fully protected in a separate proceeding.
(Lorenza Ortega vs. CA, et. al., G.R.No.125302, 100 SCAD707, Nov. 16,

is allowed, provided the intervenor is an indispensable party. (Falcasantos vs.
Falcasantos, May 13, 1952).

Motion to intervene is DENIED = remedy is APPEAL.


= At anytime but before judgment; if the judgment is void, no intervention

is allowed.
=ancillary and supplemental to an existing litigation.

REMEDY: Appeal/ petition for relief from judgment.



SUBPOENA – process directed to a person requiring him to attend and to testify at the
hearing/trial of an action/under any investigation conducted under the law of the Phils. Or
the taking of his deposition. (Kaamic vs. Galapon, 237 SCRA 390).

Courts to be extra-careful in issuing a subpoena, especially to detention prisoners

convicted of death, reclusion perpetua, or life imprisonment to prevent their escape from
detention and must be with authorization of the Supreme Court.



Notes in Remedial Law
Page 25




The court has wide latitude to issue order for the production and examination of



*Introduction of evidence by both parties/ trial terminates when judgment begins.


A judge who did not hear evidence/ conducted a trial may write a decision and
there is no denial of due process.


The litigants must be present at the trial/ client must be with the assistance of
counsel. Stipulation made by the counsel during the pre-trial is binding upon the client.

CONTINUOUS TRIAL POLICY - left to the sound discretion of the court (Pp vs. Nobreja,
203 SCRA ).


TE vs. CA - must be with the supervision of the trial judge.


Is a motion to dismiss filed by the defendant after the plaintiff has rested his case
on the ground of insufficiency of evidence. Must be with leave of court (PP vs.
Toringan (282 SCRA ).

EFFECTS (In Civil Cases):

1. If the motion is DENIED, defendant has the right to present or offer his
REVERSED ON APPEAL, the movant loses the right to present evidence on
his behalf.
3. In case of reversal, the appellate court shall render a judgment for the plaintiff
based on the evidence alone of the plaintiff.


>If the court denies the motion to dismiss, accused may adduce evidence in his

Notes in Remedial Law

Page 26
When the accused files such motion to dismiss without express leave of court,
he waives the right to present evidence and submits the case for judgment on the basis of
the evidence of the prosecution.


1. By the plaintiff = Where an answer fails to tender an issue or otherwise admits
the allegations of the adverse party’s pleading.
2. By the defendant = Where the complaint states no cause of action.
May there be a judgment on the pleadings in cases of annulment of
marriage or legal separation?

>No. In actions for annulment of marriage or legal separation, the material

allegations in the complaint must be proved.

Judgment on the Pleadings Summary Judgment

1. The answer does not tender an issue or 1. There is an issue tendered, but is not
admits the material allegation of the genuine or real issue as may be shown by
adverse party’s pleading. affidavits and depositions and that the party
is entitled to a judgment as a matter of
2. The movant must give a 3-day notice of 2. The opposing party is given 10-day
hearing. notice of hearing.
3. Only the plaintiff or defendant as far as 3. Either the plaintiff or defendant may file
the counterclaim, cross-claim, or third- it.
party complaint is concerned can file the
4. The entire case may be terminated. 4. Judgment may only be partial.


>Appeal by Certiorari upon questions of law. This is so because a judgment on the
pleadings does not raise questions of fact, as the judgment is based on the pleadings alone
and the judgment is final.



1. Defendant did not file an answer. 1. Defendant answered, but the answer did
not tender an issue or admitted the material
allegations in the complaint.
2. Evidence is received. 2. Evidence is not received as the same is
based on the pleadings alone.
3. The decision is based on the evidence 3. The decision is based on the allegations
presented. in the complaint.


Summary judgment can be resorted to only where there are no questions of fact in
issue or where the material allegations of the pleadings are not disputed.

The motion shall be served at least 10-days before the time specified for hearing.
Notes in Remedial Law
Page 27
After the service of the motion for summary judgment, the adverse party may
serve opposing affidavits at least three (3) days before the hearing.

Does not apply to election protest (Dayo vs. COMELEC)

Basis is the pleading at hand/ upon application of the partiers/final

judgment/finally disposes a case.


1. There is no genuine issue as to any material fact, except for the amount of
damages; and
2. The party presenting the motion for summary judgment must be entitled to the
judgment as a matter of law.


Summary judgment is a device for weeding out sham claims or defense at the
early stage of litigation, thereby avoiding the expense and loss of time in a trial. The very
object is to separate what is formal or pretended denial or averment from what is genuine
and substantial, so that only the latter may subject the suitor to the burden of trial. The
test therefore for a summary judgment is, whether his pleadings, affidavits, exhibits in
support of the motion are sufficient to overcome the opposing papers and justify a finding
as a matter of law, that there is no defense to the action or the claim is meritorious.

Just, precise, complete (with the statement of facts and jurisprudence) free from
suspicions/state the law and basis of the judgment/concisely written/ ideal decision must
be with factual issues, the law it is based and particular issues/ finally ends the case and
nothing to be done.

Clerical errors can be corrected.

- Appeal the judgment; or
- Motion for New Trial/ Motion for Reconsideration
GALINO vs. CA, 236 SCRA; Motions for New Trial/ Motions for Reconsideration
- Motions for New Trial or For Reconsideration must be filed within the 15-day
period to appeal on the ground of FAME + Meritorious Defense.

- Incompetence/negligence of counsel is a ground for new trial, provided an

administrative case has been previously filed against the client’s lawyer.

- Fraud – Extrinsic/collateral fraud

- Newly discovered evidence – after the trial; could not have been produced
during the trial with due diligence and it is material not corroborating,
cumulative or impeaching.


>It means that once a case is decided by the Supreme Court as the final arbiter of
any justiciable controversy one way or another, then another case involving exactly the
same point of issue should be decided in the same manner. (DBP vs. NLRC, March 1,
> Remedy is a petition for relief from judgment; exception is based on equity.

Notes in Remedial Law

Jam, SPO, ‘07
Page 28


1. Court must have jurisdiction over the subject matter;

2. Court must have jurisdiction over the person of the defendant or of the res;
3.Court must have jurisdiction over the issues; and
4. Court must render the judgment after the hearing.

Is the final process for carrying into effect the decision of the appellate court and
the transmittal to the court a quo. It is predicated upon the finality of the judgment. (De
Guzman vs. Reyes, 114 SCRA 596).


It means that a final judgment cannot be modified, even if the purpose is to
correct perceived erroneous conclusions of law or facts.


1. Correction of clerical errors;

2. Making of Nunc Pro Tunc entries which cause no prejudice to any
party; or
3. Where the judgment is void. (Vide Minal vs. CA, 221 SCRA

In order that there will be an end to litigation, no matter how unjust the error may
be, otherwise, litigation would become more tolerable that the wrong or injustice it is
designed to correct. (Reinsurance Corp. vs. CA, 198 SCRA 19).



Petition for relief from judgment, grounds:

The Rules states that when a final judgment or a final order is entered, or any
other proceeding is thereafter taken against a party in any court through FAME, he may,
file a petition in such court and in the same case, praying that the judgment, final order or
proceeding be set aside (Sec. 1).
It should be filed in the same case and in the same court where the final judgment
or final order complained of is entered or where the proceeding is taken.

When may the petitioner file a petition for relief from judgment, final order,
or proceeding?
The petitioner may file a petition for relief within sixty (60) days after he learns of
the judgment, final order or proceeding, but not more than six (6) months after such
judgment, or order was entered or such proceeding was taken (Sec.1).

Petition for relief from judgment must be verified and accompanied with
affidavits showing fraud, accident, mistake or excusable negligence (FAME) relied upon,
and the facts constituting the petitioner’s good and substantial cause of action or defense,
as the case may be.

1. FRAUD – extrinsic fraud; one the effect of which prevents a party from
having a trial or real contest, or from presenting all of his cases to the court or
where it operates upon matters not pertaining to the judgment itself but to the

Notes in Remedial Law

Jam, SPO, ‘07
Page 29
manner by which it was procured so that there is no fair submission of the

2. MISTAKE – some unintentional act, omission or error arising from

ignorance, surprise, imposition or misplaced confidence. It is the result of
ignorance of law or fact that has mislead a person to commit that which, if he
had not been in error, he could have done it. It may arise from
unconsciousness, ignorance, forgetfulness, imposition or misplaced
confidence. (Black’s Law Dictionary, 5th Ed., p. 903).

3. ACCIDENT – is a ground for a PRJ when the party seeking it had exercised
ordinary diligence to ascertain the facts which it is claimed to have surprised
or prevented said party from presenting his case. (Sunico vs. Villapando, 14
Phil. 352).

4. EXCUSABLE NEGLIGENCE - it means a failure to take the proper steps at

the proper time, not in consequence of a party’s own carelessness, inattention,
or willful disregard of the process or the unavoidable hindrance or accident or
on reliance on the case and vigilance of his counsel or on promises made by
the adverse party. (Black’s Law Dictionary, 5th Ed., p. 508).

Is negligence of a lawyer binding upon the client?

As a general rule, the client must be bound by the negligence, mistakes, or
omissions of his counsel or lawyer (Blaza vs. CA, 162 SCRA 461, 1988).

Exception: when the negligence is gross as it would deprive the client of due
process of law (Suarez vs. CA, G. R. No. 91133, March 25, 1993; De La Cruz vs. CA,
174 SCRA 370, 1989).

What shall the MTC do if the petition is granted?

It shall set aside the judgment, final order, or other proceeding complained of,
then the case shall stand as if such judgment, final order, or other proceeding had never
been issued, rendered, or taken. The court shall then proceed to hear and determine the
case as if a timely motion for new trial or reconsideration had been granted by it (Sec.6).
The rule is so now, because the petition is filed with the same court.

State the procedure where the denial of an appeal is set aside

Where the denial of an appeal is set aside, the lower court shall be required to
give due course to the appeal and to elevate the record of the appealed case as if a timely
and proper appeal had been made (Sec.7). The Rule does not require a new trial.

Motion for New Trial vs. Petition for Relief from Judgment
1. Filed before judgment becomes final. 1. Filed after judgment has become final.
2. Applies to judgment or final order only. 2. Applies to judgments, final orders, or
3. Grounds: FAME +NDE 3. Grounds: FAME only
4. Filed during the period for perfecting an 4. Filed within 60 days from knowledge of
appeal. the judgment or final order, but within in
six (6) months from entry of the judgment
or final order.
5. MNT denied, remedy is appeal the 5. PFRJ denied, no more appeal.
judgment or final order.
6. It is a legal remedy. 6. It is a remedy in equity.
7. Needs no verification. 7. Must be verified.

Notes in Remedial Law


 A matter of right after the finality of judgment;

 Executed within five (5) years from its finality; non-execution within 5 years
= file an ordinary action to enforce judgment after 5 years
 Execution pending appeal in Ejectment cases – filing of a bond.
 Motion for support pending litigation
 Tort/negligence cases – no need to file a special civil action.


1. Petition for relief from judgment (Rule 38)

-must be verified;
-must be filed within sixty (60) days after petitioner learns of the judgment,
final order or other proceeding to be set aside, and not more than six (6)
months after such judgment , final order was entered, or such proceeding was
-must be accompanied by affidavits showing FAME + evidentiary proof (Sec.
1, Rule 38).

-documents to be attached:
*authentic/authenticated documents; duplicate copy of the original
decision of the RTC (substantial compliance)

2. Ordinary Appeal (Rule 45)

-only on questions of law
-direct action

3. Collateral Attack
- if the court has no jurisdiction, the judgment is void.
- Remedy: independent civil action under the Civil Code.

PCGG vs. SB, 210 SCRA – period starts from entry of judgment (FAME + evidentiary


>This is a rule which is basically founded on the theory that after the 5-year
period to execute a judgment has already lapsed, it can be executed by an action,
provided it is done within a period of ten (10) years from the date of its entry. The revived
judgment can still be revived as the law says that the revived judgment may also be
enforced within 5 years from the date of its entry and thereafter by action before it is
barred by the statute of limitations.

It means that the revived judgment can again be revived, provided it is done
within ten (10) years from the finality of the revived judgment.



1. Where he acquiesces in the rendition of the judgment or in the judgment as

2. Where he acknowledges the binding effect or force of the judgment;
3. Where he receives or retains benefits accruing to him under the judgment;
4. Where he voluntarily pays the amount in the judgment;
5. Where he offers his property to be sold on execution without objection;
6. Where a party against whom a default or other interlocutory order or judgment
is taken submits to and ratifies it by participating in the further proceedings in
the action.
Notes n Remedial Law
Page 31
1. There be an earlier final judgment;
2. The court which has rendered the judgment has jurisdiction over the subject
matter and the parties;
3. It is a judgment on the merits; and
4. There is between the first and the second action
a. identity of parties (substantial identity);
b. identity of subject matter;
c. identity of causes of action (two action must be based on the same
delict or wrong committed by the defendant; and
d. identity of relief/s sought by the parties in the action.

Appeal of a decision of the MTC (exercise of its original jurisdiction) to the RTC (in the
exercise of its appellate jurisdiction) = True and xerox copy of the decision is a
substantial compliance.

Period to Appeal = to be computed from the date of receipt of the notice of the judgment
sought to be appealed.


 failure to pay the docket is a ground for the dismissal of an appeal;
Manchester ruling has been abandoned.

DE CHING vs. CA, 263 SCRA 343

> Miscalculating the period to appeal will not prevent the judgment from attaining

Petition for Relief from Judgment

>Attached authentic/authenticated documents, and a duplicate copy of the original
decision of the RTC (substantial compliance).

May a judgment be executed pending appeal?

>Yes. On motion of the prevailing party with notice to the adverse party, the court
may, in its discretion, order execution to issue even before the expiration of the time of
appeal, upon good reasons to be stated in a special order. (Sec. 2; Celendio vs. CA, et. al.,
G.R. No. 131099, July 20, 2000).


a. Insolvency of defeated party; or

b. Danger of forfeiture by winning party of its valuable lots through

foreclosure of creditors defeated party; or

c. The filing of a bond. (City of Manila vs. CA, 72 SCRA 98); or

d. Old age of the winning party.

>Filed with the court that rendered the judgment/decision while it still has
jurisdiction over the case and is in possession of either the original record or the
record on appeal. (Abe Ind. Inc. vs. IAC, 162 SCRA 48; Sonida Ind. Inc. vs.
Wagan, 179 SCRA 763).

>After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court (Phil British Assurance Co. vs. IAC,
150 SCRA 520).
Notes in Remedial Law
Page 32
>Should be interpreted restrictively (Caragao vs. Maceren, 92 Phil. 121).

>The existence of good reasons to be stated in a special order should be good

ground for execution pending appeal, for the existence of good reasons is the
element that gives validity to an order of execution (Alcasid vs. Samson, 102 Phil.
735; De La Rosa vs. City of Baguio, 90 Phil. 720).


a. In a case involving a judgment for the delivery of consumer’s goods

susceptible of deterioration, immediate execution was considered justified
(NaMarCo vs. Tan, L-17768, March 31, 1962);

b. Where the judgment concerned the means of subsistence of the plaintiff,

a sickly woman of 75 years and without means of livelihood, execution
pending appeal was held proper after the filing of the supersedeas bond by
the defendant (De Leon vs. Soriano, 95 Phil. 806);

c. Judgment involving the payment of monthly allowances for the

subsistence of an heir who was sick I a foreign country (People’s Bank
Trust Co. vs. San Jose);

d. Judgment was for the defendant to pay on the basis of property

insurance contract, withdrawal from business in the Philippines on the part
of said corporation (defendant) was a good reason for immediate
execution, as defendant corporation’s withdrawal from the country creates
the danger of the judgment being rendered ineffectual when it becomes
final and executory (Scottish Union and National Insurance Corporation
vs. Macadaeg, 91 Phil. 891);

e. Appellant’s were possessors in bad faith, not only because they knew
that the land in question did not belong to them but also because the
improvements were introduced after the demand had been made on them
to vacate the property (Bagoba vs. Fernandez, 103 Phil. 706);

f. The finding of the trial court that the petitioner – defendant was
insolvent is a good reason to affirm an order of execution pending appeal
of the decision ordering him to pay rentals and vacate the premises
(Astraquillo vs. Javier, L-20034, Jan. 30, 1965);

g. Execution was also proper on the following grounds:

1. That there was uncertainty as to who were the legitimate

occupants of the position of mayor, vice mayor and councilors
(Alkuino vs. Arrieta, L-21538,-40 Oct. 31, 1963);

2.That if the situation where two officials hold only one position
was allowed to continue, the province may be compelled to pay
two school principals, and peace and order in the school may be
disturbed (Mabutas vs. Alzate, 92 Phil. 1071);

3. That a party had long been deprived of the lawful possession of

market stalls causing loss of benefits that should have accrued to
him daily (Buenaventura vs. Pena).

h. When appeal is taken only for purposes of delay (Iloilo Trading and
Exchange vs. Rodas, 73 Phil. 327; Presbiter vs. Rodas, 73 Phil. 800).
Notes in Remedial Law
Page 33
i. The filing of a bond by the prevailing party, as required by the court in
its order of execution, constitutes good reason for the issuance of a writ of
execution pending appeal (PBTC vs. San Jose, 96 Phil. 805).

j. When a bank is placed under receivership. To execute the judgment

would unduly deplete the assets of the bank to the prejudice of other
creditors. Furthermore, the judicial liquidation is intended to prevent
multiplicity of action against the insolvent bank, as claims should be filed
in the liquidation proceedings (Galindez vs. Rural bank of Llanera, G.R.
No. 84975).

Requisites of preventing execution pending appeal in ejectment cases:

i. Losing party perfects an appeal;

ii. Files a supersedeas bond; and
iii. Deposit the current rentals during the pendency of the appeal.

>A decision of the RTC affirming/upholding the judgment of the MTC in an ejectment
case cannot be prevented from execution pending appeal; REMEDY: Petition for Review
(Rule 45) >>>CA (Maceda vs. DBP,G.R. No. 135128 August 26, 1999).


Judgment or final order that completely disposes of a case, or of a particular

matter therein when declared by the Rules to be appealable. (Sec. 1).

Mode of appeal: Ordinary appeal to the CA in cases decided by the RTC in the
exercise of its (RTC) original jurisdiction > NOTICE OF APPEAL filed with the court
that rendered the judgment or final order appealed from and serving a copy thereof to the
adverse party. (Sec.3).
-No record on appeal required, exception: in special proceedings and other cases
of multiple or separate appeals where the law or the Rules require.

-Mode of appeal: PETITION FOR REVIEW to be filed with the CA in all cases
decided by the RTC in its appellate jurisdiction.

-Mode of appeal: APPEAL BY CERTIORARI TO THE SC (Rule 45) in all

cases where only questions of law are raised or involved.


(a) An order denying a MNT/MFR;

(b) An order denying a PFR or any similar motion seeking relief from
(c) Interlocutory order;
(d) An order disallowing or dismissing an appeal;
(e) 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;
(f) An order of execution;
(g) A judgment or final order for or against one or more of several parties
or in separate claims, counterclaims, cross-claims and 3rd party
complaints, while the main case is pending, unless the court allows an
appeal therefrom;
(h) An order dismissing an action without prejudice.

Notes in Remedial Law

Page 34
In all the above instances where the judgment or final order is not
appealable, the aggrieved party may file an appropriate civil action under Rule 65.

SEC. 3. Period of Ordinary Appeal

- 15 days from notice of the final judgment or final order appealed from.

- Record of Appeal is required: Notice of appeal and a record on appeal to be

filed within 30 days from notice of the judgment or final order.

- Habeas corpus cases – within 48 hours from notice of the final judgment or
final order appealed from.


Legal Basis:
>Power of the Supreme Court to review, revise, reverse, modify or affirm on
appeal the judgment of the lower/inferior courts.


>A Motion for Reconsideration (MFR) must be filed with the court that rendered
the decision before an appeal can be had thereon. (Buyagaoan vs. SLU)

 Remedies under Rule 45 and Rule 65 are not alternative.


Upon perusal of the case, the court determines that it should be a petition for a
special civil action, it may treat the petition as a special civil action under Rule 65 on the
merits of justice.

Rule 65 = on the grounds of question of law = Question as to the truth or

falsehood of the facts which do not call for any examination of the probative
value of the evidence presented by the parties. (Roman Catholic of Manila vs.


Factual matters not applicable to certiorari; as a general rule findings of facts by
the trial courts are binding with the Court of Appeals (appellate court), however not a fast
and hard rule.

Exceptions (when factual findings of the trial courts may be given due

1. The conclusion is a finding grounded on speculation, conjectures or surmises;

2. The inference made is manifestly mistaken, absurd, or impossible;
3. When there is grave abuse of discretion (Leviste case);
4. Judgment is based on misapprehension of facts;
5. Findings of facts are conflicting;
6. Court went beyond the issues of the case (National Steel Corp. vs. CA, 283
SCRA ______);
7. Findings of facts of the CA are contrary with that of the trial court;
8. Findings of facts are conclusions without citation of specific evidence on
which the decision is based;
9. Findings of facts are premised on the absence of evidence but contradicted by
the evidence on record; and

Notes in Remedial Law

Page 35
10. Respondent did not dispute the findings of facts in the petition.

>Issues not raised in the trial court cannot be raised for the first time before the
court of appeals, except in cases of Newly Discovered Evidence on the ground of
FAME +Meritorious Defense.

The negligence or sin of the lawyer is the sin/negligence of the client, except
when it deprives the client of due process then such sin/negligence of the lawyer does not
bind the client.

Negligence does not include delinquent acts of counsel/lawyer, as when the latter
does not appear in court. (Lacsamana vs. CA, ____SCRA____).

New issues not raised in the MFR may be given due course, provided they are
newly discovered evidences:

i. must have been discovered after trial, before judgment and after the
parties formally offered their evidences;
ii. it could not have been produced and discovered during the trial with the
exercise of due/reasonable diligence; and
iii. evidence is material and not corroborative, cumulative, and impeaching
and if presented would change or alter the decision. (Garrido vs. CA,
State the nature of findings of facts of the Court of Appeals?
The findings of facts of the Court of Appeals are generally final and conclusive
upon the Supreme Court.

1. When the conclusion is founded on speculations or conjectures;
2. When the inference made is manifestly absurd, mistaken, or
3. When there is grave abuse of discretion in the appreciation of facts;
4. When the findings of facts are conflicting;
5. When the Court of Appeals went beyond the issues and the same is
contrary to the admission of both parties;
6. When the findings of the Court of Appeals are at variance with the trial
7. When the finding of facts are conclusions without citation of specific
evidence on which they are based.



*Temporary relief, to be filed with the principal complaint.

*It is defined as the taking (legal custody) of property by the court for the
satisfaction of the judgment; security for the satisfaction of the judgment for the
*Grounds for attachment must be SPECIFIED and the party asking for
attachment of the property of the defendant must file a BOND, to answer damages
that may be incurred by the defendant, it the attachment has been proven to be
unwarranted or unreasonable.
*No NOTICE to adverse party is REQUIRED; no hearing is required for the
application of the party; it may be issued ex-parte (Sec. 2).
Notes in Remedial Law
Page 36
* Order of attachment WITHOUT A BOND is INVALID; there must be an


i. Court granted the order of attachment;

ii. Writ of attachment is issued; and
iii. Implementation of the writ.


Motion to dissolve the attachment stating that the respondent is not a party
to the suit or the property is not included in the suit.

>At the commencement of the action or at any time before entry of judgment.


a. In an action for the recovery of a specified amount of money or damages, other

than moral and exemplary (ME), on a cause of action arising from law, contract,
quasi-contract, delict or quasi-delict against a party who is about to depart
from the Philippines with intent defraud his creditors; or

b. In action for money or property embezzled or fraudulently

misapplied or converted to his own use by a public officer, or an officer of
a corporation, or an attorney, factor, broker agent, or clerk, in the course of his
employment as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty; or

c. In an action to recover the possession of property unjustly or

fraudulently taken, detained or converted, when the property, or any part
thereof, has been concealed, removed, or disposed of to prevent its
being found or taken by the applicant or an authorized person;

d. In an action against a party who has been guilty of a fraud in contracting

the debt or incurring the obligation upon which the action is brought,
or in the performance thereof; or

e. In an action against a party who has removed or disposed of his

property, or is about to do so, with intent to defraud his creditors; or

f. In an action against a party who does not reside and is not found in
the Philippines, or on whom summons may be served by publication.
(Sec. 1).


*Must be VERIFIED + BOND, in an amount to be determined by the court;

*failure of verification is FATAL to the cause.
*Permanent relief; granted at the discretion of the court.
*granted at any stage of the action, prior to final judgment requiring any person to
refrain from a particular act (“DO NOT DO AN ACT”)
*Injunction is not a cause of action, only a provisional remedy and there must be a
main/principal action in court.
*cannot deprive someone of possession of his property.
*A remedy against the informal dwellers.
* No bond; based on equity; based on initial and incomplete evidence to be heard.
Notes in Remedial Law
Page 37
SC - - - Injunction - - 60 days
Lower courts - - TRO/Injunction - - 20 days
Labor case – 20 days lifetime of the TRO

*Does not lie against a co-equal court.


a. That the applicant is entitled to the relief demanded, and the whole or part of
such relief consists in restraining the commission or continuance of the act or
acts complained of, or in requiring the performance of an act or acts, either for
a limited period or perpetually;

b. That the commission, continuance or non performance of the act or acts

complained of during the litigation would probably work injustice to the
applicant; or

c. That 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. (Sec. 3, Rule 58).

i. Prohibitory – to restrain the performance of an act; and
ii. Mandatory – to compel the performance of an act.

*Three (3) days TRO >hearing-petition granted – seek an injunction on the 3rd day
>during the seventeen (17) day period > move for a hearing of the injunction on
the 20th day.

* The burden of proof is on the respondent to show cause why no injunction shall
be issued.

*Cannot be issued against government public works’ project, except for

injunctions issued by the Supreme Court

Preserve status quo pending final determination of the rights and obligations of
the parties.

*If the petition is granted, it shows that the case has some sort of merits.

Nota Bene:

SC Circular No. ____ effective March 10, 2007

The Regional Trial Court can no longer issue a TRO/PI against extra-judicial
foreclosure of mortgage, and that if there is any application for TRO/PI, it should be set
for hearing with the presentation of evidence by the party seeking the TRO/PI.

Notes in Remedial Law

Page 38

*Action for the recovery of personal property.

An application of an order to the recovery of personal property may be filed at
the commencement of the action or at any time before answer.
* applicant to file an affidavit and bond.
* applicant needs the immediate possession of the property.

Third person is seeking possession of the property - remedy is a third-party

claim not replevin.


a. That the applicant is the owner of the property claimed, particularly describing
it, or is entitled to the possession thereof;

b. That the property is wrongfully detained by the adverse party, alleging the
cause of detention thereof according to the best of his knowledge, information
and belief;

c. That the property has not been distrained or taken for a tax assessment or a
fine pursuant to law, or seized under a writ of execution or preliminary
attachment, or otherwise placed under custodia legis, or if so seized, that it is
exempt from such seizure or custody; and

d. The actual market value of the property.

Mandatory requirement to stay execution of the writ of replevin:

The defendant within 5 days from date when the Sheriff took possession of the
property must put up a bond, in an amount twice the value of the chattel, and furnish the
plaintiff a copy of the undertaking.


*Action to intervene to determine the rights and obligations of the parties.

*Whenever conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter, or an
interest which in whole or part is not disputed by the claimants, he may bring an
action against the claimants to compel them to interplead and litigate their several
claims among themselves. (Sec. 1, Rule 62)

 within the time for filing an answer.
 Impropriety of the interpleader action/grounds under Rule 16.
 Motion denied, file the answer within the remaining period, but which shall
not be less than five (5) days in any event, reckoned from notice of denial.


>paid by the party who filed a complaint under Rule 62, as well as costs and
litigation expenses, shall constitute a lien or charge upon the subject matter of the action,
unless the court shall order otherwise. (Sec. 7, Rule 62).

Notes in Remedial Law

Page 39

1. When the complaint is filed, the court shall require the conflicting claimants to
interplead with one another (Sec. 2);

2. The court may command that the subject matter be paid or delivered to the
court (Sec. 2);
3. Summons shall be served upon the conflicting claimants (Sec. 3);

4. The conflicting claimants shall answer within 15 days after receipt of

summons, otherwise one who does not answer shall be barred (Sec. 4);

5. The court will determine their claims (Sec . 5);

6. Docket and other lawful fees, costs and litigation expenses shall constitute a
lien or charge upon the subject matter of the proceeding, unless the court
otherwise provides (Sec. 7).


1. The plaintiff must not claim interest in the subject matter or that the claim is
not disputed;

2. There must be at least two or more conflicting claimants;

3. The parties impleaded must make effective claims; and

4. The subject matter must be one and the same.



One in which a person interested under a deed, will, contract, or other written
instrument, or whose rights are affected by a statute, executive order, or regulation or
ordinance may, before breach or violation thereof, bring an action to determine any
question of construction or validity arising under the instrument or statute and for a
declaration of his rights and duties. (Sec. 1, Rule 63; De Borja vs. Villadolid, 85 Phil. 36).

Phil. National Bank Employees Association vs. Estanislao 46 SCAD 330,

G.R. No. 104209, Nov. 16, 1993
Declaratory relief is a petition where one seeks the declaration by the court of the
constitutionality or illegality of the rule in which the Supreme Court has only an appellate
and not original jurisdiction.

Other Actions under Rule 63:

1. Reformation of instruments;
2. Action to quiet title to real property, or remove clouds therefrom; and
3. To consolidate ownership thereunder (Art. 1607, NCC).

Special Action for Declaratory Relief vs. Ordinary Civil Action

1. An impending violation of the plaintiff’s 1. Plaintiff alleges violation of his right.
right is enough.
2. Judgment stands by itself, no execution 2. Judgment is coercive, there is execution.
Notes in Remedial Law
Page 40


1. There must be a justiciable controversy (Obiles vs. Republic, 92 Phil.864);
2. The controversy must be between persons whose interests are adverse;
3. The party seeking declaratory relief must have a legal interest in the
4. The issue involved must be riped for judicial determination (Caltex Inc. vs.
Palomar, L-19650, Sept. 29, 1966); and
5. It must be filed before there is breach or violation (Office of the Ombudsman
vs. Ibay, et. al., G. R. No. 137538, Sept. 3, 2001).

Instances when court may refuse to grant declaratory relief:

1. When it would not terminate the uncertainty or the controversy which gave
rise to the action; or
2. Where the construction or declaration is not necessary and proper under the
circumstances (Sec. 5).



What is the mode by which the judgment or final order or resolution of the
COMELEC or COA may be reviewed?

It is by special civil action of certiorari under Rule 65 to be brought by the

aggrieved party to the Supreme Court within thirty (30) days (not 60 days) from NOTICE
of the judgment or resolution sought to be reviewed. (Rule 64, Secs. 1 &2).

May a judgment or final order or resolution of a division of a COMELEC be

brought to the Supreme Court?

No. Only judgment or order or final resolution of the COMELEC en banc, may be
brought to the Supreme Court on a petition for certiorari under Rule 65. (Ambil, Jr. vs.
COMELEC, et. al., G.R. No. 143398, October 25, 2000).



1. It is directed against a body, tribunal, or officer exercising judicial or quasi-

judicial functions;
2. That such tribunal, board, or officer has acted without or in excess of
jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction (Bloomfield Academy vs. CA, et. al., 55 SCAD 566, G.R. No.
99042, September 26, 1994); and
3. That there is no appeal nor any plain, speedy and adequate remedy in the
ordinary course of law (Gelindon vs. De La Rama, 46 SCAD 684, G.R. No.
105072, December 9, 1993).

>Rule 65 is limited to challenges against error of jurisdiction (Municipality of

Binan, Laguna vs. CA, 219 SCRA 69, 1993).

>Errors of judgment cannot be reviewed or raised in a special civil action for

certiorari (Ramnani vs. CA, 221 SCRA 582).

>Simple abuse of discretion not correctible by certiorari (UP vs. CSC, 46 SCAD
570, G.R. No. 108740, December 1, 1993).
Notes in Remedial Law
Page 41

>A Motion for reconsideration (MFR) should be filed before a special civil action
for certiorari is filed.


1. Where the issue is one of law;

2. Where public policy or interest is involved;
3. In case of urgency;
4. Where the motion (MFR) would raise the same issues already raised;
5. Where the order is void; and
6. Where execution has already been issued. (Ronquillo vs. CA, 132 SCRA 174).

 Certiorari does not apply if there are administrative remedies available.

May certiorari be a substitute for appeal? Is the rule absolute?

>As a general rule, certiorari is not a substitute for appeal.


1. Where either the public welfare and the advancement of public policy has
dictated or the broader interest of justice have demanded; or

2. Where the orders complained of are found to be of patent nullities; or

3. That an appeal is considered clearly an inappropriate remedy. (Gelindon vs.

De La Rama, 46 SCAD 684, G.R. No. 105072, Dec. 9, 1993).

i. Petition is patently without merit;

ii. Prosecuted manifestly for delay;
iii. Questions raised are too unsubstantial to require consideration.

>Respondent to answer within ten (10) days from receipt of a copy of the petition.

>Filed not later than sixty (60) days from notice of the judgment, order or
resolution sought to be assailed in the Supreme Court.

 Errors of jurisdiction committed by a Body, Tribunal, or Officer.

>Is employed to compel the performance, when refused of a ministerial duty, this
being its chief use and not a discretionary duty.

Notes in Remedial Law

Page 42



It is a demand by the State upon some individual or corporation to show by what

right they exercise some franchise or privilege appertaining to the State which, according
to the constitution and laws of the land they cannot legally exercise by virtue of a grant
and authority from the State (44 Amer. Jur., 88-89).
-To oust an illegal occupant to a public office.
-To be filed within One (1) year from the time petitioner was ousted from public
office. Exception: Failure to bring the act within the one (1) year period is due to
the act of a responsible government officer (Cristobal vs. Melchor, 75 SCRA


1. A person who usurps, intrudes into, or unlawfully holds or exercise a public

office, position or franchise;
2. A public officer who does 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 (Sec. 1, Rule


- Usurpation of office/franchise:
i. name of the person who claims to be entitled to the office;
ii. the right to the said position;
iii. the fact that defendant is unlawfully in possession thereof (Sec. 6).


1.The ground is the disqualification or 1. The ground is irregularities in the

ineligibility of the proclaimed candidate; conduct of an election.
2. If the respondent is found ineligible he 2. The protestant who prevails will assume
would simply be ousted, but petitioner will the contested office provided he had
not assume the office. obtained the plurality of votes. (Palma, et.
al. vs. Manocdoc, et. al., G.R. No. L-17393,
November 8, 1962; Luison vs. Garcia, G.R.
No. L-10981, April 25, 1958).



Elective Office vs. Appointive Office

1. What is to be determined is the 1. What is to be determined is the legality
eligibility of the candidate-elect; of the appointment.
2. When the candidate-elect is found to be 2. The court determines who has been
ineligible, the court cannot declare that the legally appointed and shall declare who is
candidate who obtained the second highest entitled to occupy the office. (Nuval vs.
number of votes has been elected even if he Guray, et. al., G.R. No. 30241, December
is eligible. 29, 1928).

Notes in Remedial Law

Page 43


Quo Warranto = is the remedy to tests the title to one’s office claimed by another and
has as its object the ouster of the holder from its enjoyment.

Mandamus = is the remedy to enforce clear legal duties and not to try disputed titles
(Garces vs. CA, et. al., G.R. No. 114795, July 17, 1996).



-It is the right of the State, as a sovereign to take or appropriate property for
public use upon payment of just compensation. It is based on necessity; It is inseparable
from the State unless it is denied by the fundamental law (Kohl vs. U.S., 91 U.S. 371).

-Courts must be extra-careful in determining what property is to be taken for

public use (Moday vs. CA).

- All properties, whether real or personal (except money), may be expropriated

(Rule 67, Sec. 1).

May the plaintiff take possession of the property sought to be expropriated

during the pendency of the proceedings?

Yes. Upon filing of the complaint or at anytime thereafter and after due notice to
the defendant, the plaintiff shall have the right to take or enter upon the possession of the
real property involved if he deposits with the authorized government depositary an
amount equivalent to the assessed value of the property for purposes of taxation.


i. the filing of the complaint for expropriation sufficient in form and

substance; and
ii. the making of a deposit equivalent to the assessed value of the
property sought to be expropriated (Biglang-awa vs. Bacalla, et.
al., G.R. Nos. 139927 and 139936, November 22, 2000).
-at least 15% of the FMV of the property based on the
current tax declaration of the property sought to be
expropriated (Sec. 19, R.A. 7160, as amended).


1. Determination of the authority of the government to exercise the power of

2. Issuance of the order of expropriation/condemnation; and
3. Payment of just compensation – full and fair value of the property taken.
=time of taking >> “WHICHEVER COMES FIRST”.
=time of filing of petition >>

Notes in Remedial Law

Page 44


=Action in rem; filed in the RTC that has jurisdiction of the place where the property is

= Limited to the amount of mortgage, except when the parties intends that the mortgage
covers additional future loans, then evidence to prove additional amount be admitted
(Quintanelia vs. CA)

=Redemption period = One (1) from confirmation of sale.

PNB vs. CA, 231 SCRA 362

Stipulation between the parties as to the rate of interest is valid only during the
lifetime of the loan. After foreclosure, the legal rate of interest applies, which is 12% per


i. Sheriff issues a certificate of sale;

ii. The one (1) year redemption period starts/counted from date of
registration of the certificate of sale with the Register of Deeds of
the place where the property is located/situated; and
iii. Title is vested to the buyer upon the expiration of the one (1) year
redemption period.
Remedy of the highest bidder (mortgagee): consolidation of
the certificate of sale and title; ministerial duty of the ROD to issue
title, provided the redemption period has expired.

NAVARRA vs. CA, 248 SCRA 350

Upon registration, mortgagee/highest bidder may take immediate possession of
the subject property.


1. Decedent left no will;

2. Decedent left no debts (It shall be presumed that the decedent left no debts if
no creditor files a petition for letters of administration within two (2) years
after the death of the decedent [Sec. 1, Rule 74]);
3. The heirs/liquidators are all of legal age; minors represented by legal
guardians/legal representatives;
4. Partition is done through a public instrument duly recorded in the appropriate
Register of Deeds of the place where the property is located/situated.

=Oral partition of a property owned in common is binding among the heirs,

but for purposes of efficacy, it must be registered with the Register of Deeds.
=After the death of the decedent, the partition of his estate shall be done
within ninety (90) from date of his death but within two (2) years after the
death of the decedent (Bureau of Internal Revenue Regulation; Rule 74).

=Partition requires publication. The fact of extrajudicial settlement or

administration shall be published in a newspaper of general circulation once a
week for three consecutive weeks in the place where the estate of the decedent
is situated (Rule 74).


Notes in Remedial Law
Page 45

= the issue is physical/material possession (possession de facto).
=Who has a better right to possess the property?

= formal/written demand to vacate is a jurisdictional requirement (Amcan vs.

CA, 285 SCRA 34).
iii. upon the lessee; or
iv. serving written notice of such demand upon the person found on
the premises; or
v. by posting such notice on the premises, if no person be found
thereon, and the lessee fails to comply therewith after fifteen (15)
days in the case of land or five (5) days in the case of buildings
(Sec. 2, Rule 70).

=the action for unlawful detainer is brought after the lapse of one (1) year
from date of last formal demand for the respondent to vacate the

=Deprivation of physical possession of a land or building thru “FISTS”

= demand to vacate the property/building is not necessary (Ramiento vs. CA,

250 SCRA 108).

= Summary in nature (Gatchon vs. De Vera) and based on affidavits (Piano vs.
CA, 169 SCRA); irrespective of the amount of damages or unpaid rentals
sough to be recovered, except in cases covered by the agricultural tenancy laws
or when the laws otherwise provides. (Sec. 3, Rule 70); complaint, compulsory
counterclaim and cross-claim pleaded in the answer and answers thereto

=acceptance of rentals does not constitute a waiver to eject the defendant

(Camiza vs. CA, 268 SCRA).

=May include an action for a writ of possession directing the Sheriff to turn
over possession of the property to the plaintiff.

=reasonable compensation for the use of the property may be awarded.

=subleases have no standing to file an answer.

=titles not validated are not evidence of possession of the land as of the date
indicated in the title.


=owner lost in the MTC, he could still file an action in the RTC to recover
ownership of the property.
*If the building is gutted by fire, it does not divest the MTC of its jurisdiction (the
ancillary issue of compensation is ripe for determination by the court).

TACITA RECONDUCTION = no demand given to defendant to vacate after the

expiration of the lease/contract, it is deemed that there is an implied renewal of contract
period to be governed by the original contract.

Notes in Remedial Law

Page 46


= must file his answer to the complaint within ten (10) days from
service of summons and serve a copy thereof to the plaintiff.

=affirmative and negative defenses not pleaded deemed waived,

except: lack of jurisdiction over the subject matter.

=cross-claims and compulsory counterclaims not asserted in the

answer shall be considered barred.

=answer to cross-claims and counterclaims shall be served and

filed within ten (10) days from service of the answer in which they
are pleaded.


=court to render judgment as may be warranted by the facts alleged

in the complaint and limited to what is prayed by the complaint, if
defendant failed to file his answer within 10 days from service of
--upon motion of the plaintiff, or by the court motu

=The court may in its discretion reduce the amount of damages and
attorney’s fees claimed for being excessive or otherwise
unconscionable, without prejudice to the applicability of Section
3[c], Rule 9, if there are two or more defendants (6, RSP).

Section 3[c], Rule 9 provides: Effect of

partial default = When a pleading asserting a claim
states a common cause of action against several defending
parties, some of whom answer and the others fail to do so,
the court shall try the case against all upon the answers thus
filed and render judgment upon the evidence presented. (4a,

SECTION 8. Preliminary Conference; Appearance of Parties = MANDATORY

*Plaintiff fails to appear = shall cause the dismissal of the complaint.

=Defendant who appears – entitled to judgment on his
counterclaim. All cross-claims shall be dismissed.

*Sole defendant fails to appear = plaintiff is entitled to judgment as may

be warranted by the facts alleged in the complaint and limited to what is
prayed for therein (Sec. 7).

*Procedure shall not apply where one of two or more defendants sued
under a common defense shall appear at the preliminary conference.

Presidential Decree No. 957, as amended (Housing and Land Use

Regulatory Board)
> Subdivision buyers on installment; failure to comply with the terms and
conditions of the contract.

Notes in Remedial Law

Page 47


1. ACCION INTERDICTAL – summary action for FE/UD; seeks recovery of
physical possession only and is brought within one (1) year after such
unlawful deprivation or withholding of possession at the Municipal Trial

2. ACCION PUBLICIANA – Plenary action; right to possess.


OUTSIDE METRO MANILA = = MTC>AV does not exceed P20,000.00

RTC>AV exceeds P20,000.000

WITHIN METRO MANILA = = RTC>AV exceeds P50,000

MTC> AV does not exceed P50,000

3. ACCION DE REINVIDICATORIA – action to recover ownership.


MTC = AV does not exceed P20,000
RTC = AV exceeds P20,000


MTC = AV does not exceed P50,000
RTC = AV exceeds P50,000

>Demand = Oral/Written is a jurisdictional requirement.

>In forcible entry and unlawful detainer cases, the issue of right of possession
may be litigated in the RTC, provided there are extraordinary circumstances,
such as the demand is beyond the one (1) year period.

>Accion Publiciana – the issue is possession

>Accion Reinvindicatoria – the issue is ownership plus possession
>Accion Interdicta –

Accion Negatoria – Pertains to the right of the landowner to defend his property with the
use of reasonable force.

Accion Hypothecaria – Pertains to an action to foreclose a lien on real property.

Notes in Remedial Law

Page 48


1. Nature of Possession of the defendant is Possession of the defendant is

Possession unlawful from the very beginning inceptively lawful from the
thru FISTS. beginning but becomes illegal by
reason of the termination of his
right to the possession of the
2. Demand The law does not require previous Plaintiff must first make a demand
demand for the defendant to vacate. which is jurisdictional in nature,
except if the ground is the
expiration of the term of the lease.
3. Degree Plaintiff must prove that he was in Plaintiff need have been in prior
of prior physical possession of the physical possession of the premises.
Possession premises until he was deprived by
the defendant.
4. The one (1) year period is counted The one (1) year period is counted
Prescription from the date of actual unlawful from the date of last demand.
entry on the land/property. (Munoz et. al. vs. CA, G.R. No.
102693, Sept. 23, 1992).

*As a general rule, execution shall issue immediately upon motion of the plaintiff, in an
ejectment case, the judgment, if against the defendant, is subject to immediate execution.
But defendant may stay execution of the judgment by doing the following:

1. he must perfect an appeal;

2. he must file a supersedeas bond; and
3. he must periodically deposit the monthly rental or the reasonable value
for the use and occupation of the premises falling due during the
pendency of the appeal. (Rule 70, Sec. 19).


*Direct Contempt = immediately actionable by the judge.

*Indirect Contempt = to be docketed as a separate case; raffled to another judge.



A party interested in an escheat proceeding must have a material and direct
interest, not future and contingent interest.


A guardian may withdraw the consent given by the ward for third persons to
occupy the latter’s property.


*What is important is the paramount interest of the child.

*Inter-Country Adoption Law

Notes in Remedial Law
Page 49

Expert Physician = One who is affiliated with the government.

Republic Act No. 9225

Illegitimate children may use the family name of the father thru a special
proceeding to be filed by the father, mother and the child (or his guardian).


Writ of Habeas Corpus

Is a remedy to gain custody of the child, legitimate or illegitimate, who is under
the custody of his grand parents.

Paredes vs. SB, 193 SCRA 464

If there was lawful cause to have the person in, writ of habeas corpus will not lie.

Galvez vs. CA, 268 SCRA

The remedy of a person in lawful custody is to file a bail for his temporary liberty.

People vs. Rabriaga, 250 SCRA 163

If the accused was convicted by final judgment but over served the penalty, his
remedy is a writ of habeas corpus.
The writ is available when the restraint of one’s liberty is found to be


Change of Name
-It is a compliance with family duties.

Republic vs. Marcos, 182 SCRA 90

Change of name is not a remedy to create family relations which are non-existing.

Some sufficient grounds for a change of name:

i. When the name is ridiculous, dishonorable or extremely difficult to write or


ii. When the change is a legal consequence of legitimation or adoption;

iii. When the change will avoid confusion;

iv. When one has continuously used and been known since childhood by a
Filipino name and was unaware of alien parentage;

v. When the change is based on sincere desire to adopt a Filipino name to erase
signs of former alienage, all in good faith and without prejudice to anybody; and

vi. When the surname causes embarrassment and there is no showing that the
desired change of name was for a fraudulent purpose, or that the change of name
would prejudice public interest. (Republic vs. Hernandez, 68 SCAD 279, 253
SCRA 509)

Notes in Remedial Law

Page 50
Baluyot vs. Baluyot
-Legitimacy may be made in any document.

Compulsory recognition - there must be a direct document/s to prove the same.

Voluntary recognition – authentic public documents is sufficient.

The dissolution/liquidation of an insolvent corporation is a special proceeding.





PRELIMINARY INVESTIGATION = Conducted when the penalty is at least four years,

two months and one day (4.2.1) without regard to fine.

Del Castillo vs. Aguinaldo, 212 SCRA

The jurisdiction of a court is determined by the averments in the complaint or

People vs. Sarol

Information; elements:

i. name of the accused;

ii. the designation of the offense given by the statute;

iii. the acts or omissions complained of as constituting the offense;

iv. the name of the offended party;

v. the approximate date of the commission of the offense; and

vi. the place where the offense was committed.

Caez vs. IAC, 179 SCRA – As a general rule, the prosecution of a case is under the
control and supervision of the fiscal/prosecutor, however, the offended party may hire a
private lawyer only while the case is being prosecuted in the Regional Trial Court (RTC).

People vs. Dacudao, 170 SCRA 459

A private prosecutor cannot appear before the Supreme Court.

Municipality of Pililia, Rizal vs. CA, 233 SCRA 484 (1984)

A municipality cannot hire the services of a private lawyer, except when the fiscal
is disqualified; But with the advent of R.A. 7160 (1991), as amended, municipalities/
LGU’s may now hire the services of a private lawyer/ can be represented by a private

Nature and cause of a criminal offense

-Determined by the investigating fiscal; has the sole discretion/prerogative to
determine what crime is committed? and who are liable?

Notes in Remedial Law

Page 51


The information or complaint may be amended, in substance or form, without
leave of court, at any time before the accused pleads; and thereafter and during the trial as
to all matters of form, by leave and at the discretion of the court, when the same can be
done without prejudice to the rights of the accused.

If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss then original complaint or information upon
the filing of a new one charging the proper offense in accordance with Rule 119, Section
11, provided the accused would not be placed thereby in double jeopardy, and may also
require the witnesses to give bail for their appearance at the trial.



1. No judgment has been rendered;

2. The accused cannot be convicted of the offense charged or of any of the
offenses necessarily included therein (People vs. Mogul, 131 SCRA 303);
3. The accused should not be placed in double jeopardy.


There should be a plurality of acts performed during a period of time, unity of
penal provisions violated and unity of criminal intent or purpose, which means that the
two or more violations of the same penal provisions are united in one and the same intent
or resolution leading to the perpetration of the same criminal purpose or aim. (Santiago
vs. Garchitorena, 46 SCAD 576, G.R. No. 109266, Dec. 2, 1993).

Venue is determined by the place where the elements of making, issuing, or
drawing of the check and delivery thereof are committed (MIDD).


General Rule:
The civil aspect is deemed instituted upon the institution of the criminal action;
Exception: reservation, waiver, or an independent civil action.

People vs. Amaca, 277 CRA

The execution of an affidavit of desistance will not bar the public prosecutor to
prosecute criminal offenses.

People vs, _____, 254 SCRA 307

When a respondent is absolved in a civil case, it will not bar the prosecution of
the criminal aspect of the case.

Prejudicial Question
Definition: 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. The prejudicial question must be determinative of the case before the court but
the jurisdiction to try and resolve the question must be lodged in another court or tribunal.
It is a question based on a fact distinct and separate from the crime but so intimately
connected with it that it determines the guilt or innocence of the accused.

Notes in Remedial Law

Page 52

Civil case as a prejudicial question in a criminal case; requisites:

i. The civil case involves facts intimately related to those upon which the criminal
prosecution would be based;

ii. In the resolution of the issue/issues raised in the civil action, the guilt or
innocence of the accused would necessarily be determined; and

iii. Jurisdiction to try said question must be lodged in another tribunal. (Donato
vs. Luna, 160 SCRA 441).

Samson vs. Daway, July 24, 2004

A prejudicial question is one that arises in a case the resolution of which is a
logical antecedent of the issues involved in the criminal case and jurisdiction lies in
another tribunal.

Paras vs. CA, 205 SCRA 625

-Civil case-prejudicial question?

i. it involves same facts upon which the criminal case is based; and

ii. the resolution of such issue determines the guilt or innocence of the
accused in the criminal case.

Rationale of a prejudicial question

*Ruanda vs. SB, 249 vs. 342

- for the courts want to avoid two conflicting decision.
- to avoid forum-shopping.

Flordeliz vs. Castillo, July 21, 1994

The pendency of an administrative case is not a ground to suspend a criminal
case. The resolution of the administrative case does not determine the guilt/innocence of
the accused.


Definition –It is an executive function.

Is an inquiry or proceeding to determine whether there is a sufficient ground to
engender a well-founded belief that a crime has been committed and the respondent is
probably guilty thereof, and should be held for trial; Determination of probable cause

Preliminary investigation is required to be conducted where the penalty prescribed

by law is at least four (4) years, two (2) months and one (1) day. (4:2:1).


Sec. 7, Rule 112

=when accused was lawfully arrested without a warrant.

Complaint/information may be filed in court without preliminary
investigation, provided an inquest has been conducted.

=In the absence or unavailability of an inquest prosecutor, the

complaint may be filed by the offended party, or a peace officer

Notes in Remedial Law

Page 53
directly with the proper court on the basis of the affidavit of the
offended party or arresting officer or person.
=After the filing of the complaint or information in court without a
preliminary investigation, the accused may, within five (5) days
from the time he learns of its filing, ask for a preliminary
investigation with the same right to adduce evidence in his
defense. (7a; Sec. 2, R.A. No. 7438).

People vs. Rolito Go, Feb. 11, 1992

A request for a preliminary investigation within five (5) days after the filing of the
information is not a waiver of his right.

Mercado vs. CA, 245 SCRA

A preliminary investigation is conducted for the protection of the accused; and to
determine the commission of an offense.

Tandoc vs. Resultan

A preliminary investigation is conducted to protect accused from inconvenience
and expense.

Stages of Preliminary Investigation:

1. Conduct of preliminary examination for the issuance of a warrant of arrest

upon determination of probable cause;
2. Accused to present evidence of his behalf; and
3. Preliminary investigation proper.

Kilusang Bayan vs. Dominguez, 205 SCRA –

RTC - Preliminary investigation is compulsory.
MTC- Preliminary investigation is not mandatory.

Camanag vs., Guerrero, 268 SCRA 473

Under RA 6670, the Omdudsman can conduct preliminary investigation of cases
under his jurisdiction.

COMELEC – can conduct preliminary investigation but prosecution of cases for

violation of election laws can only be done with the assistance of the prosecutor.

PCGG – cannot conduct preliminary investigation; cannot be a prosecutor and judge at

the same time.

Section 4. Resolution of Investigating Prosecutor and its Review.

=No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the ombudsman or his deputy.


MAY BE WAIVED either by:

i. posting of a bond by the accused;
ii. when the accused submits himself to the jurisdiction of the
court by applying for bail. (In Re: Letter of Freddie P. Manuel,
54 SCAD 97, A.M. MTJ-93-893, August 4, 1994).
iii. any irregularity or infirmity in the issuance of a warrant is
cured when accused submitted himself to arraignment.

Notes in Remedial Law

Page 54
=Is a proceeding for the purpose of determining probable cause for the issuance
of a warrant of arrest.

=only judges may determine probable cause for the purpose of issuing a warrant
of arrest.

=Purposes: fact of commission of the crime; probability that the person sought
to be arrested has committed a crime.

Preliminary Examination vs. Preliminary Investigation

1. done ex-parte; 1. not ex-parte;
2.d one only by judges; 2.done by a judge, prosecutor, COMELEC,
3. judicial function. 3. executive function and a part of the work
of a prosecutor.

Criminal Investigation and Preliminary Investigation distinguished:

=A criminal investigation is a fact-finding inquiry conducted by law

enforcement officers where they gather evidence, interview witnesses, assess the
evidence to find out if a complaint should be filed for purposes of preliminary

A preliminary investigation is a proceeding for the determination of the

sufficiency of evidence to warrant the holding of the suspect for trial.

The one who conducts the C.I. cannot at the same time conducts the P.I.. This is
arbitrary and unjust. (Cojuangco vs. PCGG).



Taking of a person into custody in order that he may be bound to answer for the
commission of an offense. (Sec. 1).

It is made by an actual restraint of a person to be arrested, or by his submission

to the custody of the person making the arrest. No violence or unnecessary force shall be
used in making an arrest. The person arrested shall not be subject to a greater restraint
than is necessary for his detention. (Sec. 2).

It also refers to the deprivation of the liberty of a citizen.

People vs. Esguerra

-Reasonable force may be used;
-immediate body search may be made upon persons to be arrested.

Notes in Remedial Law

Page 55
Sec. 5. Arrest without warrant; when lawful – A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to
believe based on personal knowledge of facts and circumstances that
the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.

Warrantless Arrest:
i. Flagrante delicto;
ii. Stop and frisk;
iii. hot pursuit rule

-Universal Declaration on Human Rights

-International Covenant on Political Rights

Public officer, no legal ground - - arbitrary detention (crime committed)
Private person - - - - - - - - - - - - - illegal detention (crime committed)

Padilla vs. CA, 26 SCRA

The fact that the car has not been registered and its windows were tainted/dented
when the accused was arrested, it was held that the police officer making the arrest has
personal knowledge that a crime has been committed.

People vs. Jessie Hope

Accused was engaged in the buy and sell of px goods; contraband was inside his
car; refused to stop at a check-point; caught redhanded with the contraband (violation of
Tariff and Customs law); Warrantless arrest, arrest in transitu held to be within the
contemplation of the law.

Note: Warrantless arrest should not be based on hearsay evidence,

personal knowledge required by law.

People vs. Insinada, 280 SCRA 72

- End does not justify the means.
- Probable cause based on reasonable ground of suspicion supported:

i. by circumstances sufficient in themselves to warrant that the accused has

committed an offense;

ii. Raw intelligence information does not gave policemen probable cause to
believe that accused has committed a crime;

iii. Supreme Court Circular No. 13 allows the issuance of a warrant of arrest
even after office hours;

iv. Policemen cannot be allowed to violate the law, they are expected to
enforce the same;

v. Quick solution of the crime and immediate apprehension of law violators

does not disregard the callous effect of an unlawful arrest.

Notes in Remedial Law

Page 56
People vs. Musa, 217 SCRA
In buy-bust operations conducted by policemen, the marked money used may be
Plainview doctrine - - contemplates unlawful things/objects open to human sight.

People vs. Quizon, 234 SCRA

Doctrine of poisonous tree upheld; fruit of an illegal arrest cannot be used against
the accused in any proceeding.

Stonehill vs. Diokno; Tambasin vs. People, 246 SCRA 84

Scatter-shot warrant is proscribed by law; a search warrant must be issued for one
specific offense only.

Aniag vs. COMELEC, 246 SCRA 224

Search of a motor vehicle is limited to a visual search; occupants must not be
subject to bodily search.

Checkpoint search is limited to the following:

o policemen conducting the checkpoint who conducts searches must be
accompanied by a COMELEC officer; and
o occupants cannot be ordered to go down and then be subject to a
bodily search.

People vs. Maglolo, 231 SCRA

If the arresting officer has personal knowledge of the commission of an offense,
then arrest can be made immediately following the commission of the offense.

Thus: Crime committed at 1pm but accused arrested only at 7pm, it was held that
it could not be a valid warrantless arrest anymore. There is sufficient time for the
arresting officer to apply for an arrest warrant from the courts.

People vs. Burgoz

The “We Forum” publishing company was searched and closed during martial
law, being alleged an underground publication. Is the search valid?

No, the search is unlawful. The policemen have no reasonable ground to believe
that an offense had been committed by the owner of the “We Forum”.

Pagculan vs.Bureau of Bilibid Prisons, 22 SCRA 638

An escaped prisoner can be arrested immediately, since he is committing a crime,
evasion of sentence.

People vs. Galang, December 15, 1955

A citizen’s arrest under the instances provided under the Rules is valid, provided
done in good faith.

Umil vs. Ramos, 187 SCRA

Rebellion is a continuing offense. A person charged with rebellion can be arrested
with or without a warrant of arrest.

People vs. Conde, April 10, 2001

Reliable information is not a valid ground for a warrantless arrest. The accused
was arrested five (5) days after the commission of an offense while walking at Tandang
Zora street. Hence, the warrantless arrest of the accused is not valid.
People vs. Zarso
The lawyer must be personally chosen by the accused.
Notes in Remedial Law
Page 57

Read: Republic Act No. 7438

People vs. Echegaray
For the accused to be adequately represented, he must have a competent counsel
of his own choice, otherwise there is a deprivation of his right to due process of law.

Reyes vs. CA, 267 SCRA 543

Effective resignation of a counsel to be valid, the adverse party must be given
notice and after a hearing.

As a general rule, negligence of the counsel binds the client, except if the
negligence of the counsel would result to the deprivation of the client’s right to due
process which could be a good reason for new trial on the ground of FAME.


Is the security given for the release of a person in custody of the law, furnished by
him or a bondsman, to guarantee his appearance before any court as required under the
conditions set by the Rules, and may be given in the form of corporate surety, property
bond, cash deposit, or recognizance.


All persons in custody shall be admitted to bail as a matter of right, with sufficient
sureties, or released on recognizance as prescribed by law or the Rules:

a. before or after conviction by the MTC, MTC,MTCC, or MCTC; and

b. before conviction by the RTC of an offense not punishable by death, reclusion
perpetua, or life imprisonment. (Sec. 4).


Upon conviction by the RTC of an offense not punishable by death, reclusion

perpetua, or life imprisonment, admission to bail is discretionary.

*Filing of a notice of appeal – petition for bail may be filed and acted upon
by the trial court, provided it has not transmitted the original record to the appellate court.

HOWEVER, if the decision of the trial court convicting the accused changed the
nature of the offense from non-bailable to bailable = application for bail can only be filed
with and resolved by the appellate court.

Penalty imposed by the trial court is imprisonment exceeding six (6) years, the
accused shall be denied bail or his bail shall be cancelled upon showing by the
prosecution, with notice to the accused, of the conditions and circumstances provided
under he Rules. (Sec.5).

Parada vs. Veneracion, 269 SCRA 371

The judge was dismissed for gross ignorance of the law when he denied bail for
the accused who had committed a bailable offense.

Parameters of bail:
1. Effective upon approval by the court until it is cancelled;
2. It is cancelled upon the non-appearance of the accused;
3. bail is returned after judgment.
Notes in Remedial Law
Page 58
Bail is discretionary – when the penalty imposed by law at the time of its commission
is death, reclusion perpetua, or life imprisonment (capital offense); or when the accused is
a flight risk.

Application for bail – notice to the prosecutor is required.



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 therefore, or from assailing
the regularity or questioning the absence of the preliminary investigation of the charge
against him, provided that he raises them before entering his plea. The court shall resolve
the matter as early as practicable but not later that the start of the trial of the case. (n).

Padiranga vs. CA, 247 SCRA

The rationale of the right to bail is to discourage/prevent the practice of allowing
an accused’s detention by private prosecutors.

Basco vs. Rappatalo 269 SCRA

Personal appearance of the accused is required when he post- bail; personal
appearance is a recognition of the jurisdiction of the court over the person
(respondent/accused) of the person posting bail.

De Los Santos vs. Forteza, 247 SCRA 85

In order to post-bail, the applicant must be under the custody of the law.

Cortez vs. Castral, ____ SCRA _____

The right to post-bail cannot be availed of if the accused is not in custody of the

People vs. Abaco

Bail is deemed a waiver of any irregularity of an arrest.


i. Before arraignment – bail confiscated; higher bail may be imposed.

ii. After arraignment – bail confiscated; increasing the amount f bail may be
imposed; trial-in-absentia may be held.

Commendador vs. De Villa, 200 SCRA 80

The right to bail is not available to the military tribunals; right to bail is not
traditionally granted to persons in the military tribunals.

Tabao vs. Espina, 257 SCRA

In cases where the penalty imposed is death, reclusion perpetua, or life
imprisonment, it is indispensable for the court to conduct a hearing to determine the
strength of the evidence of the prosecution.

People vs. Retuta, 234 SCRA 645

Reclusion Perpetua vs. Life Imprisonment

-Imposed by the Revised Penal Code - Imposed by special law.
-Has accessory penalties - No accessory penalties
- Duration of 40 years - No specific duration, but after 30
years accused qualified for

Notes in Remedial Law

Page 59
SC Admin. Circular No. 2-92
In capital offenses, if the accused’s petition for bail was granted but is convicted
by the Trial Court, the bond should be cancelled and accused confined pending the
resolution of his appeal.

Esperitu vs. Revelallus, 280 SCRA 279

Release on recognizance is available only to minor offenders.


The constitutional presumption of innocence of the accused; to balance the scale
of justice; due process includes the right to confront witnesses pitted against the accused;
to be informed of the nature and cause of the accusation against the accused.

People vs. Ayson, 175 SCRA 216

Right against self-incrimination is not self-executory/operational, it must be
timely raised/ claimed by or on behalf of the accused.

DNA Test
Not recognized in the Philippines; but may be done by common agreement of the

Republic Act 8493, Speedy Trial Act of 1998 – Provides for a mandatory trial;
pre-trial; and marathon hearing.

Trial Stage starts > starts after pre-trial;

Ends of trial > when the court renders a ruling on the formal offer of evidence by the
defense; court has 180 days to render a decision/ruling (directory only).

Right to Counsel – raised the moment liberty of the accused is restrained; personal
choice of the accused.

Moncopa vs. Enrile – The accused is entitled to a counsel of his own choice at the
starts of custodial investigation, even if no information has yet been filed in court.

_____ vs. Conte, 45 Phil 680

Withdraw waiver of Art. 125 of the RPC (accused signed a waiver of Art. 125,
RPC - unduly delay in the disposition of proceedings of custodial investigation) and then

People vs. Manansala, 273 SCRA

Accused was charged with the crime of rape and was acquitted; was subsequently
charged with qualified seduction.

Held: No, it cannot be done. The accused was denied of his constitutional right to be
informed of the nature of the crime and cause of the accusation against him.

People vs. Tabang – The right to counsel may be waived.

Notes in Remedial Law

Page 60

1. Use and Fruit Immunity Statute

=The evidence obtained cannot be used to prosecute a person. It
cannot be used against him. He can, however be prosecuted.

=The person can be prosecuted but the evidence obtained cannot be

used against him.

2. Transactional Immunity Statute

=The evidence obtained cannot be used against the person in any

criminal prosecution. He cannot be prosecuted.

=The state may not be interested in sending a person to prison, but it

exchanges the immunity to a person to determine the motive for the
commission of the crime. Even if the guilt can be proved by other
evidence, the person cannot be prosecuted.

U.S. vs. Arizona

The Miranda warning pertaining to the rights of the accused should not only be
read to him, but must be clearly explained to the accused.

Relate to Republic Act No. 7438.


= only against testimonial compulsion.
=what is prohibited is the use of physical or moral compulsion to extort
communication, not an inclusion of his body as evidence, when it may be

People vs. Manansala, 273 SCRA 502

The accused was acquitted for the crime of rape (against his daughter) since there
was no moral ascendancy proved by the prosecution.

Charged: qualified seduction but convicted for the crime of rape- acquittal, the
accused was not informed of the nature and cause of the accusation against him.

People vs. Taban

Fugitive from justice can be tried in absentia.

Right of the accused to speedy trial

Conde vs. Divina, 45 Phil 650

Denial- -remedy is mandamus for the dismissal of the complaint.

Read: RA 7438 – Speedy Trial Act of 1998

Pre-trial is mandatory - - SB, MTC, RTC

-reduce time table for trial
- entire trial period – 180 days

Notes in Remedial Law

Page 61
People vs. Miyake, September 16, 1997
Accused was charged with large scale of illegal recruitment. The prosecution
presented facts of the previous decision as is applicable and material to the pending case.

Held: Facts in the previous decision cannot be used to prove facts before the trial


It is the formal mode of implementing the constitutional right of the accused to be
informed of the nature and cause of the accusation against him, and to fix the identity of
the accused.

Reading of the complaint/information for the accused; it must be in a

language/dialect of the accused (mandatory); No valid arraignment, no valid judgment.

Personal appearance of the accused is required. (Marcos vs. Ruiz, 216 SCRA 277;
People vs. Mandaga, 256 SCRA 421).


1. Trial in absentia is allowed only after arraignment;

2. Judgment is generally void if the accused has not been arraigned;
3. There can be no arraignment in absentia;
4. If the accused went to trial without arraignment, but his counsel had the
opportunity to cross-examine the witnesses of the prosecution after he was
arraigned, the defect was cured. (People vs. Atienza, et. al., 86 Phil. 576).

Is the written manifestation of the accused entering a plea of not guilty


No. Mere written manifestation is not sufficient. He must appear personally.

(Jimenez vs. Military Commission, 102 SCRA 40).

Plea of guilt; requirements:

i. Must be unconditional;
ii. Must be with the assistance of counsel; and
iii.The court must imposed the penalty fixed by law.

People vs. Alicando 251 SCRA

Accused pleads guilty to the offense - - The court to conduct a searching question
or inquiry whether he enters it voluntarily and understand the consequences of his plea. A
hearing shall be conducted to determine his culpability.

Accused may plead to a lesser offense, provided the complainant allows it. The
plea of guilt to the offense/ lesser offense/shall be made after arraignment but before the
pre-trial stage.

Plea of guilt in capital offenses – aggravating circumstances are deemed waived;

an evidence- reception hearing must be conducted (People vs Lagarto. 196 SCRA).

People vs. Albert, 251 SCRA – The penalty of death when imposed is irrevocable.

Proof of Voluntary Surrender - The documentation of the physical turn-over of the

person of the accused to the lawful authorities.

Notes in Remedial Law

Page 60
People vs Corpuz, 102 SCRA 674 – Violation of the constitutional right of the
accused to be informed of the nature and cause of the accusation against him is a ground
for a change of plea of guilty to a lea of not guilty.


When may the accused move to quash the information?

At anytime before entering his plea, the accused may move to quash the
information or complaint. (Sec. 1) It is filed before arraignment. It is a litigated motion
and a hearing is necessary. Must be filed before an accused enters a plea.

Provide the basis of quashal of the information/complaint and must be set for
hearing; absence is a fatal defect (void judgment).

DENIED: Remedy > Go to trial (Yap vs. CA, 220 SCRA).

- deemed to hypothetically admitted the allegations in the

CA vs. Deja, 284 SCRA 173; Double jeopardy, Elements:

i. valid complaint or information;
ii. filed before a competent court;
iii. to which defendant has pleaded; and
iv. defendant was previously acquitted or convicted or the case dismissed or
otherwise terminated without his express consent.

What are the grounds for a motion to quash?

The grounds are:

1. The facts charged do not constitute an offense;

2. The court trying the case has no jurisdiction over the offense charged or the
person of the accused;
3. The officer who filed the information had no authority to do so;
4. It does conform substantially to the prescribed form;
5. That more than one offense is charged, except in those cases which existing
laws prescribe a single punishment for various offenses;
6. That the criminal action or liability has been extinguished;
7. That it contains averments which, if true, would constitute a legal excuse or
justification; and
8. That the accused has been previously convicted or in jeopardy of being
convicted, or acquitted of the offense charged. (Sec. 2)

What facts shall be considered in a motion to quash?

Only facts alleged in the complaint or information shall be considered in a motion
to quash. If there are matters of defense, they cannot be considered, except prescription,
extinction of criminal liability, and double jeopardy. (Pp. vs. Cadabis, 97 Phil. 829; Cruz
vs. CA, 194 SCRA 145, 1995)


-stipulation of facts; it is mandatory; it is a mode of discovery.

Pre-Trial brief - RTC/MTC – mandatory

Notes in Remedial Law

Page 61
Agravante vs. Patriarka, 183 SCRA – personal presence of the parties is
mandatory; non-appearance of counsel is inexcusable negligence.

New Mediation Law - When the civil aspect of a case is settled, it is deemed that the
criminal aspect of the same is settled.

People vs. Agbayani, 284 SCRA 345 - Accused has 2-days to prepare for trial but
must be expressly demanded by accused from the court. Absence of such demand, it is
not a reversible error on the part of the judge.


Trial in absentia; elements:

i. Notice of the trail;
ii. valid arraignment; and
iii. absence of the accused is unjustified.

People vs. Espanola, 271 SCRA 689; State Witness; requisites:

i. Consent of the accused to be discharged as state witness;
ii. His testimony is necessary for the prosecution of the other accused;
iii. No other direct evidence is available for the proper prosecution of the case;
iv. His testimony is easily corroborated in any material point;
v. He is the less guilty; and
vi. Not guilty of any crime involving moral turpitude.

-To be done after arraignment and after initial presentation of the evidence of the

People vs. SB, 277 SCRA 505

The motion to discharge the accused as a state witness was filed before
arraignment. The Supreme Court upheld the denial of the motion. There must be a
determination of the proper guilt of the accused.


People vs. Villaflor, 233 SCRA 196

The judgment must contain an explanation of the factual findings and legal basis
that lead to the conclusion of the court. In the absence thereof, the judgment is irregular
and can be attack on the ground of violation of the constitutional rights of the accused.

Bernardo vs. Balagot, 215 SCRA 526

A conviction below six years is entitled to probation. Probation is merely a
privilege and rest solely to the discretion of the court.

Read: Presidential Decree No. 968, The Probation Law.

Notes in Remedial Law

Page 62
Bernardo vs. CA, 216 SCRA 224
A motion for new trial/ reconsideration shall be filed within 15-days from
promulgation of the decision/date of receipt of notice of judgment.


i. Errors of law, irregularities committed during trial prejudicial to the rights of the
ii. Newly discovered evidence after trial; and
iii. If presented, would change the decision.

People vs. Cabatoc, 263 SCRA 187

The gross incompetence of the counsel is a ground for new trial.

Recantation – Generally discouraged.

Two (2) Schools of thought:

1. People vs. Mangalabnan, 200 SCRA – Accused has no

participation in the commission of the crime.

2. People vs. Garcia, 288 SCRA – Affidavit of

recantation/desistance not sufficient to warrant a new trial because
recantation/affidavit of desistance pertains not only to the withdrawal
of the case but totally exclude the participation of the accused in the
commission of the crime.


When? – Within the 15-day period to appeal, counted from the day of the promulgation
of the judgment/ date of receipt of the notice of judgment.

-Accused was convicted but become a fugitive – his lawyer cannot appeal the
judgment of conviction.

-Petition for review on certiorari – only on questions of law.

- Death penalty was imposed – automatic review to the Supreme Court, but it
may refer the review of the facts to the Court of Appeals.



Manchester Ruling - The cost of the suit and other fees not paid to the court becomes
a first lien on the judgment.


Notes in Remedial Law

Page 63

What need not be proved (propriety):

-no doubt of its authenticity

i. Judicial Notice-
-of common and general knowledge;
-well and authoritatively settled; and
- known to be within the limits of the jurisdiction of the court.

How? – by manifesting to the court that there exist a judicial notice on the matter.

People vs. Gacot, 242 SCRA 504 – Philippine laws are judicial notices.

ii. Foreign laws must be proved; no judicial notice of foreign laws (____ vs.
Tolete, 232 SCRA722).

Judicial Notices:
- cost of container included in the selling price;
- reluctance of witnesses in criminal cases;
- deplorable forest;
- tipping;
- lass not to fabricate lies or accusations against her defloration. (People vs.
- Stipulation of judicial notice, except if there is palpable mistake (Lim vs.
- Masons – not well-educated; minor inconsistencies in their testimony may be
disregarded by the court and do not impair their credibility.

People vs. Placido, 199 SCRA 490

-affidavits may be used during trial for purposes of recollection by the witness.

People vs. Padao, 367 SCRA 6

-affirmative testimony prevails over the denial by the accused.

People vs. Raminal, 296 SCRA

-informants are not indispensable for the prosecution of the case (Buy-Bust



1. Real Evidence/Physical Evidence; Physical evidence on record prevails over

testimonial evidence (People vs. Vasquez, 280 SCRA 160).

2. Documentary evidence
- there are facts which the human memory cannot rely on (People vs. Abella, 257
- spoken words are notoriously unreliable as against written documents (De Leon
vs. CA, 205 SCRA).

People vs. Maliabago, 265 SCRA 198

- the best evidence to prove marriage is the marriage contract.

People vs. Joya, 227 SCRA 9

- An affidavit of retraction is not looked upon with favor by the courts.
Notes in Remedial Law
Page 64
Heirs of Jesus Fran vs. Sales
-complaint or petition should have an attachment of an original/authentic copy of
the documents. However, to avoid submitting the originals, counsel may request the
opposing counsel and clerk of court to compare the certified copy with the originals of
the documents.

-mere photocopies of evidence are inadmissible under Rule 132.

Widows and Orphans association, Inc. vs. ______, 201 SCRA

Secondary evidence; elements:

1. Proof of execution of the original document;

2. Document had been lost, destroyed, or cannot be produced in court; and
3. That the document is in the possession of 3rd adverse party who fails to turn-
over such document after reasonable notice.


-Proof of verbal agreement to vary/change the terms of the document is
inadmissible. Exceptions: (“F I V E”) = provided puts in issue in the pleading =

1. Intrinsic ambiguity, mistake or imperfection in the written agreement;

2. The failure of the written agreement to express the true intent and agreement of
the parties thereto;
3. The validity of the written agreement;
4. The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.

Testimonial Evidence
1. Qualification of Witnesses:
-Competency = minimum ability to observe, recall, recollect, recount;
= an understanding of the duty to tell the truth (People vs.
AMAC, 217 SCRA 215).
= conviction on a criminal case is not a disqualification to
testify, except in cases involving moral turpitude (People
vs. Balanon, 233 SCRA 687).
= relationship is not a disqualification to testify/ to become
a witness/to discredit witnesses (People vs. Cion, 217
= credibility and competence of witnesses is a matter of
human observation by the judge.

People vs. Patawaran, 274 SCRA 130

-Badge of respect/credible witnesses; a relative by affinity is not worthy of belief
to vindicate a relative involved in a crime (biased testimonies). The court must re-study
the case.

-BIAS occurs when relationship of the witness causes him to exaggerate, gives
false color to his testimony/statement, or suppress or pervert the truth. In short, he tells a

People vs. Campos, 202 SCRA 387

-Failure of complainants to report within six (6) months from the commission of
the crime is taken against them.

Notes in Remedial Law

Page 65


People vs. Lising, 258 SCRA 595

-conduct and declarations, provided voluntary, are admissible against him;
presumed to correspond to the truth; Voluntariness and acknowledgment of guilt.

Admission – statement of facts by the accused pertaining to the commission of a crime;

may be insufficient to establish a conviction because it only establish admission of facts.

People vs Victor, 181 SCRA 818

-admission if so specific/detailed, pertaining to elements of the crime = court may
appreciate the extra-judicial confession without counsel.

Offer to Compromise:

Civil case – not admission of guilt;

Criminal case – admission of guilt is implied.

*formal offer in open court to compromise the civil aspect of the case;
*offer to marry a victim is an implied admission of guilt in a criminal case.


-confession of one cannot prejudice another.

Exception to inter alios acta/hearsay rule:

-Doctrine of interlocking confession – co-accused, circumstantial evidence to
prove probability of participation.

Section 30. Admission by conspirator; elements:

1. Proof of conspiracy by evidence other than the commission of the crime itself;
2. relates to the common object; and
3. declarant made the admission with the assistance of counsel.

State Witness – less guilty among the accused of a crime.

People vs. Espejo, 186 SCRA 627

-testimony of a journalist who interviewed a suspect is admissible in evidence.

Interpreter – testimony not admissible in evidence because he is not testifying on his own
personal knowledge.

-affidavit is hearsay unless affiant is cross-examined in court.

-Private certification is hearsay, unless the person who made the certification is
presented in court for cross-examination.

People vs. Agbayani, 284 SCRA 315

-ex-parte affidavits is hearsay because it could be secured from ignorant


1. Imminent of death and declarant is conscious of such fact;
2. Cause and surrounding circumstances of such death;
3. relates on facts which victim is competent to testify;
4. Declarant dies; and
5. Declaration is offered in a criminal case in which the declarant’s death is the
subject of inquiry.
Notes in Remedial Law
Page 66
People vs. Gama, 271 SCRA
-Substance of the declarant’s statements/characteristics of dying declaration:
1. Trustworthiness of the reporter;
2. Capacity of the declarant to accurately remember the past (memory);
3. Disposition of the declarant; and
4. other circumstances.

OPINION RULE – as a general rule, not admissible (Sec. 48).

1. Opinion of expert witness – on a matter requiring special knowledge, skill,
experience or training which he is shown to possess, may be received in
=admissible in evidence and may guide the court in the determination of the
innocence/guilt of the accused.

2. Opinion of ordinary witnesses – for which proper basis is given, may be

received in evidence regarding;
a. The identity of person about whom he has adequate knowledge;
b. A handwriting with which he has sufficient familiarity; and
c. The mental sanity of a person with whom he is sufficiently acquainted.

The witness may also testify on his impressions of the emotion, behavior,
condition, or appearance of a person.

Prosecution cannot use the bad character of the accused, but string of cases of the
accused may be admitted that the accused is a habitual delinquent or a recidivist.


Presumption – inference as to the existence of a fact or a conjecture based on past

experience/event. (Martin vs. CA, 205 SCRA).

Burden of Proof - incumbency of a party to rely on the strength of his evidence and not to
rely on the weakness of the evidence of the adverse party. Generally lies on the


A. Examination of Witnesses

People vs. Mandapat, 196 SCRA

-fiscal may call an unlisted witness; but pre-trial requires the listing of

B. Authentication and Proof of Documents

Private documents - binding between the parties;

Public documents – binding to the whole world; without proof of its authenticity.


Section 35. When to make offer

1. Testimony of a witness – offer -made at the time the witness is called to testify.

2. Documentary and object evidence – after the presentation of a party’s

testimonial evidence.
Notes in Remedial Law
Page 67

Preponderance of evidence -
Means evidence which in its greater weight or more convincing than that which is
offered by the prosecutor. (Civil Case)

Proof Beyond Reasonable Doubt –

Means moral certainty not absolute certainty.

=Subject toaddendum=