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LAST MINUTE NOTES IN REMEDIAL LAW

By: Judge Gener M. Gito, LL.M. D.C.L.

I. JURISDICTION complaint, the complaint states a cause of action. As a general rule, evidence aliunde
should not be considered. But annexed documents to the complaint may be
1. It is the power and authority of the court to hear, try, and decide the case (Continental considered because they are part of the complaint (Sea Land Service, Inc., vs. CA,
Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015; Barangay Mayamot 327 SCRA 135).
vs. Antipolo City, GR No. 187349, August 17, 2016). Jurisdiction of the court includes
the authority to execute its decision. It includes the power of the court to control 3. What is splitting of cause of action? An act of a party of instituting more than
the execution of its decision (Echegaray vs. Secretary of Justice, 301 SCRA 96, 108). one suit for a single cause of action. A single cause of action may give rise to several
remedies. The availment of these remedies is prohibited as it is tantamount to
2. A commercial case was filed in an RTC which is not designated as a Commercial splitting of cause of action.
Court. The said Court dismissed the case for lack of jurisdiction. Is the dismissal
correct? NO. The dismissal is not correct. It should have been referred to the RTC 4. What is joinder of causes of action? It is the assertion in one pleading, in alternative
designated by the SC as a Commercial Court (Gonzales vs. GJH Land, 2015). or otherwise, as many causes of action as he may have against an opposing party
(Sec. 5, Rule 2).
3. How is jurisdiction over the subject matter determined? It is determined by
the allegations in the complaint, as well as by the character of the relief 5. What are the conditions that the joinder of parties is subject to: 1) The joinder shall
sought (Geronimo vs. Calderon, GR No. 201781, December 10, 2014; Cabling vs. not include special civil actions or actions governed by special rules; 2) Where the
Dangcalan, GR No. 187696, June 15, 2016). This is regardless of whether or not causes of actions are between the same parties but pertain to different venues or
the plaintiff is entitled to recover all or some of the claims or reliefs sought jurisdictions, the joinder may be allowed in the RTC provided one of the cause of
therein (Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015; actions falls within the jurisdiction of said court and venue lies therein; 3) Where
Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17, 2016). Thus, Caption the claims in all causes of action are principally for recovery of money, the aggregate
of the case is not controlling (Sps. Erotica vs. Sps. Dumlao, GR no. 195477, January amount claimed shall be the test of jurisdiction (Section 5, Rule 2).
25, 2916). Defenses and evidence do not determine jurisdiction (Balibago Faith
Baptis Church, Inc., Faith in Christ Jesus Baptist church, GR No. 191527, August 22, 2016). 6. When is joinder of parties allowed? All persons in whom or against whom any
The amount awarded does determine jurisdiction (Dionisio vs. Sison Puerto, 60 right to relief in respect to or arising out of the same transaction or series of
SCRA 471, 477). transactions is alleged to exist, whether jointly, severally or in the alternative, may,
except as otherwise provided in these Rules, join as plaintiffs or be joined as
4. What if the defendant in an ejectment case raise the issue of tenancy in his defendants in one complaint, where any questions of law or fact common to all
answer, should the court dismiss the case for lack of jurisdiction? While the such plaintiffs or to all such defendants may arise in the action (Section 6, Rule
MTC does not lose its jurisdiction over an ejectment case by defendant’s 3).
alleging the existence of tenancy relationship, yet, if after the hearing,
tenancy had in fact been shown, the court should dismiss the case for lack V. PARTIES
of jurisdiction (De la Cruz, vs. CA, 510 SCRA 103, 116).
1. Who is real party in interest? A real party in interest is the party who stand to be
5. What is jurisdiction over the parties? Jurisdiction over the parties refers to the benefited and injured by the judgment of the suit, or the party entitled to the avails
power of the court to make decisions that are binding on persons (De Pedro vs. of the suit. Unless otherwise authorized by law or the rules of court, every action
Romasan, supra). It is the legal power of the court to render a personal judgment must be prosecuted or defended in the name of the real party in interest. (Sec. 2,
against the party to an action or proceeding (Black’s Law Dictionary, 5th Ed., 767, Rule 3). The determination of who the real party in interest is requires the
cting Imperial vs. Hardy, La 302 So.2d 5, 7, cited in Riano, Civil Procedure, 2016). examination of elements of a cause of action. A cause of action involves the
existence of a right and violation of such right. Thus, the owner of the right violated
6. How is jurisdiction over the parties acquired? Plaintiff upon the filing of the is the real party in interest as plaintiff and the one violating the right is the real party
compliant. Defendant – upon valid service of summons and voluntary appearance. in interest as defendant.
To constitute voluntary appearance, it must be the kind that amount to voluntary
submission to the jurisdiction of the court. Submission to the jurisdiction of the 2. What is the effect if the party is not a real a real party-in-interest? The
court takes the form of appearance that seeks affirmative relief except when the complaint may be dismissed for lack of cause of action if the defendant is not the
relief sought is for the purpose of objecting to the jurisdiction of the court real-party-interest (Sec.1(g), Rule 16). If the plaintiff is not the real party-in-
over the person of the defendant. Thus, if he participates in the trial despite interest, complaint may be dismissed under (Section 1(d), Rule 16).
defective service of summons tantamounts to voluntary appearance (De Pedro vs.
Romasan Development, supra). 3. Who is an indispensable party? An indispensable party is rea party in interest
without whom no final determination can be had of an action. Indispensable parties
7. What is the concurrent jurisdiction? When two or more court can exercise shall be joined as plaintiffs or defendants (Sec. 7, Rule 3).
original jurisdiction over the case. For example, certiorari petition, the RTC, CA
and SC have original and concurrent jurisdiction. If this is the case, then, the 4. What is the effect of failure to implead an indispensable party? Failure to join an
PRINCIPLE OF HIERARCHY OF COURTS WILL APPLY. indispensable party will not result in the outright dismissal of the action. Instead, parties
may be dropped or added by the court on motion of any party or on its own initiative
8. Primary Jurisdiction at any stage of the action and on such terms as are just. (Sec. 11, Rule 3). It is when
the order of the court to implead an indispensable party goes unheeded may the case
II. FILING FEE be dismissed for failure to comply with the order of the Court (Sec. 3, Rule 17;
Plasabas vs. CA 582 SCRA 686). Any decision rendered by a court without first
1. It has been long settled that while a court acquires jurisdiction over the case only obtaining the required jurisdiction over indispensable parties is null and void for want
upon payment of the docket fees, its non-payment at the time of the filing of the of jurisdiction (Florete, Jr. vs. Florete, Sr. GR 174909, January 20, 2016), not only as
complaint does not automatically cause the dismissal of the case, provided the fees to the absent parties but even as to those present (People vs. Go, GR 201644,
are paid within a reasonable time. Even inadequate payment of filing will not divest September 24, 2014).
the court of its jurisdiction. This rule is applicable even if the claim for damages of 5. Who is a necessary party? It is one who is not indispensable but who ought to
the plaintiffs is metered or progressing as case the case is pending (Unicapital vs. be joined as a party if complete relief is to be accorded as to those already parties,
Consing, 2013). or for a complete determination or settlement of the claim subject of the action
(Sec. 8, Rule 3).
III. INDIGENT LITIGANT
6. What is the duty of a pleader is a necessary party is not joined? Whenever in
1. Who is an indigent litigant? An indigent is someone whose income, and that of any pleading in which a claim is asserted a necessary party is not joined, the pleader
his immediate family, does not exceed double the monthly minimum wage AND shall set forth the name of the necessary party, if his name is known, and shall state
does not own real property with the fair market value exceeding P300,000. If he is why such party is omitted (Sec. 9, Rule 3).
an indigent litigant, he is not required to pay filing fee.
7. May the Court order joinder of necessary party? If the reason given for the non-
IV. ACTION joinder of necessary party is found by the court not meritorious, it may order the
pleader to join the omitted party if jurisdiction over his person may be obtained
1. What is a cause of action? Act or omission by which a party violates the right (Sec. 9, Rule 3).
of another (Section 2, Rule 2).
8. What is the effect of failure to comply with the order of the Court? It shall be
2. What is the test to determine whether a complaint state a cause of action of deemed a waiver of claim against such party. (Sec. 9, Rule 3)
not? If the court can render a valid judgment based on the allegation in the
9. What is the effect if the non-inclusion of the necessary party is justified? The 6. NOTE: to make it exclusive there must words with restrictive meaning -
non-inclusion of a necessary party does not prevent the court from proceeding in Examples of words with restrictive meanings are: “only”, “solely”, “exclusive in this
the action, and the judgment rendered therein shall be without prejudice to the court”, “in no other courts, save..”, “particularly”, “no where else but/except” or
rights of such necessary party. (Sec. 9, Rule 3) words of equal import (Pacific Consultants International Asia, Inc., vs.
Schonfeld, 516 SCRA 209,229).
10. In the case of Aceron v. Ang, a case for collection of a sum of money was filed by
Atty. Aceron in behalf of Theodore and Nancy Ang. Theodore and Nancy reside 7. PLEASE TAKE NOTE: A restrictive stipulation on venue is not binding when
in California, they’re non-residents, while defendants reside in Bacolod. The action
the validity of the contract is assailed (Briones vs. CA, GR No. 204444, January
was filed by Atty. Aceron in Quezon City where he resides. A motion to dismiss
was filed but it was denied by RTC. The question is: is the representative-lawyer a 14, 2015).
real party in interest, making the filing of the complaint in court to be in the place
where he resides? Answer: No. The representative is just a representative and NOT 8. The case of Paglaom involves multiple contracts (real estate mortgage 1, 2 and 3,
a real party in interest. then a restructuring agreement). In that case, which venue stipulation will apply? In
the first contract, sabi Manila excluding all other venues. In the 2nd contract, Cebu
11. Is misjoinder of parties or non-joinder of parties a ground for dismissal of an excluding all other venues. The party defaulted in its obligation so the loan was
action? Neither misjoinder nor non-joinder of parties is a ground for dismissal of restructured. A new one was executed and then there is now a venue stipulation.
an action. Parties may be dropped or added by order of the court, on motion of Which venue stipulation will apply in the event of litigation? It will be the most
any party or upon its own initiative at any stage of the action and on such terms as recent one. Because it supersedes the other contracts.
are just. Any claim against a misjoined party may be severed or proceeded with
separately. (Sec. 11, Rule 3) 9. What if a promissory note has no venue stipulation, but there is a mother loan
agreement. The amount appearing on the promissory note was not paid when due
12. What is a class suit? When the subject matter of controversy is one of common so an action for collection for sum of money was instituted. What venue will have
or general interest to many persons so numerous that it is impracticable to join to be followed? The Supreme Court said that if the mother contract was directly
them all as parties, a number of them which the court finds to be sufficiently
connected and intertwined with the promissory note, then the promissory note will
numerous and representative as to fully protect the interest of all concerned may
sue or defend for the benefit of all. (Sec. 12, Rule 3). be bound by the venue stipulation.

13. Requisites of class suits. 1) The subject matter of the controversy is one of VII. PLEADING
common or general interest to many persons. 2) The parties are so numerous that
it is impracticable to bring them all before the court. 3) The object of the suit is to 1. Compulsory counterclaim. A compulsory counterclaim is one which, being
obtain relief for or against numerous persons. cognizable by the regular courts of justice, arises out or is connected with the
transaction or occurrence constituting the subject matter of the opposing party’s
14. What is common or general interest? A class suit does not require a commonality claim and does not require for its adjudication the presence of third parties of whom
of interest in the questions involved in the suit. What is required by the Rules is a the court cannot acquire jurisdiction. Such counterclaim must be within the
common or general interest in the subject matter of the litigation. The “subject jurisdiction of the court both as to the amount and the nature thereof, except that
matter” of the litigation meant the physical, the things real or personal, the money, in the original action before the RTC, the counterclaim may be considered
lands, chattels, and the like, in relation to the suit which is prosecuted and not the
compulsory regardless of the amount (Section 7, Rule 6).
delict or wrong committed by the defendant (Mathay vs. Consolidated Bank &
Trust Co., 58, SCRA 559, 571).
2. Elements of compulsory counterclaim. 1) It arises out of or is necessarily
15. What is the duty of the lawyer if case of a party dies? If the party dies and the connected with the transaction or occurrence which is the subject matter of the
claim is not extinguished, his duty is to inform the court of such fact within 30 days opposing’s party’s claim. 2) It does not require for its adjudication the presence of
after such death and to give the name and address of the legal representatives of third parties over whom the court cannot acquire jurisdiction. 3) It is cognizable by
the deceased party. (Sec. 16, Rule 3). the regular courts of justice and such courts have jurisdiction to entertain the
counterclaim both as to the amount and nature.
16. May the heirs of the deceased party be allowed to substitute? Yes. The heirs
of the deceased may be allowed to be substituted for the deceased without need for 3. What is the effect of failure to plead counterclaim? A counterclaim not set up shall
the appointment of executor or administrator (Sec. 16, Rule 3). be barred (Sec. 2, Rule 9). A counterclaim which either matured or was acquired
by a party after serving his pleading may, with the permission of the court, be
17. What is the rule in an action for sum of money if one of the defendant dies? presented as counterclaim by supplemental pleading before judgment (Sec. 9, Rule
When the action is for recovery of money, arising from contract, express or implied 11).
and the defendant dies before entry of final judgment in the court in which the
action was pending at the time of such death, it shall not be dismissed but it shall 4. If the amount of the counterclaim exceeds the jurisdiction of the court, what
be allowed to continue until final judgment. Favorable judgement shall be claimed is the effect? The counter cannot be treated as compulsory, but permissive since
in the estate proceedings of the deceased defendant (Sec. 20, Rule 3). the amount exceeds the jurisdiction of the Court.

VI. VENUE 5. What if the amount claimed as counterclaim is not within the jurisdiction of
the RTC, can the latter court dismiss said counterclaim? No. When the
1. Venue is the place or the geographical area in which a court with jurisdiction may original action is filed with the RTC, the counterclaim may be deemed compulsory
hear and determine a case or the place where a case is to be tried (Black’s Law regardless of the amount (Sec. 7, Rule 6).
Dictionary; City of Lapu-Lapu vs. PEZA, GR No. 184203, November 26,
2014). Venue in civil cases is procedural and not substantive. Thus, it may be waived 6. Can a party file a Motion to Dismiss with counterclaim? No. If the dismissal
or subject to agreement of the parties. of the main action results in the dismissal of the counterclaim already filed, it stands
to reason that the filing of a motion to dismiss the complaint is an implied waiver
2. What is the basic consideration in determining venue of the action? The of the compulsory counterclaim because the grant of the motion ultimately results
venue of the action would be determined is the determination of whether an action in the dismissal of the counter-claim (Financial Building Corp. vs. Forbes Park
is real or personal. SECTION 1. Venue of Real Actions. — Actions affecting Association, 338 SCRA 346, 354).
title to or possession of real property, or interest therein, shall be commenced and
tried in the proper court which has jurisdiction over the area wherein the real 7. Cross-claim. A cross-claim is any claim by one party against a co-party arising out
property involved, or a portion thereof, is situated (Rule 4). SECTION 2. Venue of the transaction or occurrence that is the subject matter either of the original
of Personal Actions. — All other actions may be commenced and tried where the action or of a counterclaim therein. Such cross-claim may include a claim that the
plaintiff or any of the principal plaintiffs resides, or where the defendant or any party against whom it is asserted is or may be liable to the cross-claimant for all or
of the principal defendants resides, or in the case of a non-resident defendant part of a claim asserted in the action against the cross-claimant.
where he may be found, at the election of the plaintiff. (Rule 4).
8. What is the effect if a cross-claim is not set-up? It shall be barred (Sec. 2, Rule
3. What is the meaning of “residence” in personal action? It means the place of abode, 9). NOTE: the cross-claim that is considered barred is the cross-claim already
whether permanent of temporary, of the plaintiff or the defendant, as distinguished existing at the time the answer is filed, not the cross-claim that may mature or may
from “domicile” which denotes a fixed permanent residence to which, when absent, be acquired after service of the answer. As to the latter Section 9, Rule 11 declares
one has the intention of returning (Dangwa Transporation Company vs. that it may, by leave of court, be presented by supplemental pleading before
Sarmiento, GR No. L-22795, January 31, 1977). Residence of a domestic judgment.
corporation is the place within the Philippines, where its principal office is located
(Section 14[3], Corporation Code; Cohen vs. Benguet Commercial Co., 34 9. Amendment of the Pleading. A party may amend his pleading once as a matter
Phil. 526). of right at any time before a responsive pleading is served or, in the case of a reply,
at any time within ten (10) days after it is served (Section 2, Rule 10). Except as
4. Stipulations as to venue. The parties may agree on a specific venue which could provided in the next preceding section, substantial amendments may be made only
be in a place where neither of them resides (Universal Robina Corporation vs. upon leave of court. But such leave may be refused if it appears to the court that
Lim, 535 SCRA 95, 99). In real actions, like unlawful detainer, the parties may the motion was made with intent to delay. Orders of the court upon the matters
stipulate on a venue other than the place where the real property is situated (Union provided in this section shall be made upon motion filed in court, and after notice
Bank of Philippines vs. Maunlad Homes, Inc., 678 SCRA 539, 550). to the adverse party, and an opportunity to be heard (Section 3, Rule 10).

5. Requisites of stipulations on exclusive venue: 1) It must be in writing; 2) It 10. May a pleading be amended as a matter of right after a motion to dismiss is
must be made before filing of an action; 3) The agreement must be exclusive. filed? Yes, because a motion to dismiss is not a responsive pleading (Paeste vs.
Jaurigue, 94 SCRA Phil. 179, 181). NOTE: Even if the motion is granted by the
Court, the plaintiff may still amend his complaint as a matter of right before the
dismissal becomes final as long as no answer has yet been served (Bautista vs. business in the Philippines, service may be made on its resident agent designated in
Maya-Maya Cottages, 476 SCRA 416). accordance with law for that purpose, or, if there be no such agent, on the
government official designated by law to that effect, or on any of its officers or
11. Amendment to conform to evidence. When issues not raised by the pleadings agents within the Philippines (Sec. 12, Rule 14).
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 9. How is service of summons effected upon a domestic private entity? When
raise these issues may be made upon motion of any party at any time, even after the defendant is a corporation, partnership or association organized under the laws
judgment; but failure to amend does not affect the result of the trial of these issues. of the Philippines with a juridical personality, service may be made on the president,
If evidence is objected to at the trial on the ground that it is not within the issues managing partner, general manager, corporate secretary, treasurer, or in-house
made by the pleadings, the court may allow the pleadings to be amended and shall counsel. (Sec. 11, Rule 14). The persons authorized to receive summons in Section
do so with liberality if the presentation of the merits of the action and the ends of 11, Rule 14 are exclusive (Nation Petroleun Gas vs. RCBC, GR No. 183370,
substantial justice will be subserved thereby. The court may grant a continuance to August 17, 2015). Service of summons on an officer other than those enumerated
enable the amendment to be made (Section 5, Rule 10). in Sec. 11 of rule 14 is invalid (7107 Islands Publishing, Inc., vs. the house of
Printers Corp., GR No. 193420, October 14, 2015).
12. Debtor executed 3 PN’s in favour of the Creditor. One of the PN’s became due
and demandable. Thus, debtor not paying the PN, creditor filed a collection suit 10. Service in person on defendant. Whenever practicable, the summons shall be
against the debtor. While the case is pending, the other PNs became due and served by handling a copy thereof to the defendant in person, or, if he refuses to
demandable also. The Creditor included the last two PN as evidences in the case receive and sign for it, by tendering it to him (Sec. 6, Rule 14). Service of
pending. It was introduced without the objection of the Debtor? Can the Court summons in the person of the defendant is generally preferred over
render judgment on the last two PNs? NO. Section 5 thereof applies to substituted service (Nation Petroleum Gas, Inc., vs. RCBC, G.R. No. 188370,
situations wherein evidence not within the issues raised in the pleadings is presented August 17, 2015). It is only when summons cannot be served personally
by the parties during the trial, and to conform to such evidence the pleadings are within a reasonable period of time that substituted service may be resorted
subsequently amended on motion of a party. Thus, a complaint which fails to state to (Chu vs. Mach Asia Trading Corp., 694 SCRA 302, 308).
a cause of action may be cured by evidence presented during the trial. However,
the curing effect under Section 5 is applicable only if a cause of action in fact exists 11. The court reiterated the rule that the impossibility of prompt, personal service
at the time the complaint is filed, but the complaint is defective for failure to allege should be shown by stating in the proof of service that efforts were made to find
the essential facts (Swagman Hotels and Travel vs. CA, 455 SCRA 175). the defendant personally and that said efforts failed; hence resort to substituted
service. Since no such explanation was made, there was a failure to faithfully,
13. May amendment be made to correct the jurisdictional defect before a strictly, and fully comply with the requirements of substituted service (Miranda vs.
responsive pleading is served? YES. Since no responsive pleading was served at Court of Appeals, 326 SCRA 278).
the time of the amendment, the plaintiff can amend his pleading a matter of course.
It should emphasized that a Motion to dismiss is not a responsive pleading 12. Substituted service. If, for justifiable causes, the defendant cannot be served
(Gumabay vs. Baralin, 77 SCRA 258; Soledad vs. Mamangun, 8 SCRA 110). within a reasonable time as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the defendant's residence with
14. May amendment be made to correct the jurisdictional defect after an Answer some person of suitable age and discretion then residing therein, or (b) by leaving
was filed? NO. The amendment would require leave of court, a matter which the copies at defendant's office or regular place of business with some competent
requires the exercise of discretion. The exercise of this discretion requires the person in charge thereof (Sec. 7, Rule 14).
performance of a positive act by the court. If it grants the amendment, it would be
acting on a complaint over which it has no jurisdiction (Campos Rueda Corp., 13. Nature of Substituted service. Substituted service is a method extraordinary in
vs. Bautista, 6 SCRA 240). character, hence, may be used only as prescribed and in the circumstances
authorized by statute (Chu vs. Mach Asia Trading Corp, 694 SCRA 302, 309-
VIII. SUMMONS 310). Hence, return which merely states the alleged whereabouts of the defendants,
without indicating that such information was verified and without specifying the
1. Summons is a writ by which the defendant is notified of the action brought against efforts exerted to serve the summons, is not enough for compliance. So is mere
him. It has two-fold purpose: 1) to acquire jurisdiction over the person of the general statement that such efforts were made (Jose vs. Boyon, 414 SCRA 216).
defendant; 2) to notify the defendant that an action has been commenced against
him. 14. What is the meaning of “reasonable time” under the rules? To the sheriff,
reasonable time means 15 to 30 days because at the end of the month, it is a practice
2. When is a defendant deemed to have made a voluntary appearance? A. By for the branch clerk of court to require the sheriff to submit a return of the
filing an answer (Guy vs. Gacott, GR No. 206147, January 13, 2016). B. By asking summons assigned to the sheriff for service. The Sheriffs Return provides data to
an affirmative relief from the Court (Reicon Realty Builders Corp vs. Diamond the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be
Dragon, GR No. 204796, February 4, 2015). submitted to the Office of the Court Administrator within the first ten (10) days of
the succeeding month. Thus, one month from the issuance of summons can
3. When is asking for affirmative relief not deemed a voluntary appearance? be considered reasonable time with regard to personal service on the
The act of making a conditional appearance or special appearance in court to object defendant (OCA vs. Cabrera-Faller, A.M. Nos. RTJ-11-2301-2303, January
to the jurisdiction of the court over his person, is not deemed a voluntary 16, 2018).
appearance or voluntary submission to the jurisdiction of the court.

4. BUT NOTE: SECTION 20., Rule 14, Voluntary Appearance. — The defendant's IX. DISMISSAL
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 1. A case was dismissed on the ground of lack of jurisdiction over the subject
jurisdiction over the person of the defendant shall not be deemed a voluntary matter. Then an action was subsequently instituted by the same plaintiffs in
appearance. the first case involving the same subject matter. Such action was also
dismissed but on the ground that it was filed in a wrong court. The plaintiff
5. How is service of summons effected? When the defendant is a foreign private again instituted an action in the now right court. While the action was
juridical entity which has transacted business in the Philippines, service may be pending but before an answer was filed, the plaintiff decided to withdraw the
made on its resident agent designated in accordance with law for that purpose, or, case. Is the plaintiff barred by the two-dismissal rule? – NO. Rule 17, Sec. 1
if there be no such agent, on the government official designated by law to that provides that if the case is once dismissed by the plaintiff before an answer is filed,
effect, or on any of its officers or agents within the Philippines (Sec. 12, Rule 14). he could re-file it because the dismissal is without prejudice. A second dismissal of
that nature will bar the third filing. For the two-dismissal rule to apply, the dismissal
6. PLEASE TAKE NOTE: As a condition precedent to the issuance of the license should have been prompted by the plaintiff in both instances and before an answer.
to transact business in the Philippines by any foreign corporation that such In this case, the first case was a dismissal on ground of lack of jurisdiction over
corporation file with the Securities and Exchange Commission a written power of subject matter while the second case was dismissed on ground it was filed in the
attorney designating some person who must be a resident of the Philippines, on wrong court. Therefore, the plaintiff can be filed for a third time.
whom any summons and other legal processes may be served in all actions or other
legal proceedings against such corporation, and consenting that service upon such X. MODES OF DISCOVERY
resident agent shall be admitted and held as valid as if served upon the duly 1. Deposition. It is the taking of testimony of any person, whether he be a party or
authorized officers of the foreign corporation at its home office (Sec. 129, not, but at the instance of a party to the action. This testimony is taken out of court.
Corporation Code).
2. Is it necessary to ask permission from the court for the taking of deposition
7. What if the foreign juridical entity is not doing business in the Philippines, if there is a pending action? If the court has acquired jurisdiction over the person
how may service of summons be effected? By personal service coursed through of the defendant or property subject of suit, but before service of an answer,
the appropriate court in foreign country with the assistance of DFA; By publication permission from the court is necessary. If there is already an answer, then leave of
in a newspaper of general circulation in the country where the defendant may be court is not necessary.
found and by serving a copy of the summons and the court order by registered mail
at the last known address of the defendant. By facsimile or any recognized 3. How is deposition taken? 1) Deposition upon oral examination; 2) Deposition
electronic means that could generate proof of service; By such other means as the upon written interrogatories.
court may in its discretion direct (Section 12, Rule 14).
4. Deposition upon written interrogatories. Rule 23, SECTION 25. Deposition
8. How is service of summons upon effected upon a foreign private entity? Upon Written Interrogatories; Service of Notice and of Interrogatories. — A
When the defendant is a foreign private juridical entity which has transacted party desiring to take the deposition of any person upon written interrogatories
shall serve them upon every other party with a notice stating the name and address
of the person who is to answer them and the name or descriptive title and address 17. Production or Inspection of Documents or Things. RULE 27, SECTION 1.
of the officer before whom the deposition is to be taken. Within ten (10) days Motion for Production or Inspection; Order. — Upon motion of any party
thereafter, a party so served may serve cross-interrogatories upon the party showing good cause therefor, the court in which an action is pending may (a) order
proposing to take the deposition. Within five (5) days thereafter the latter may serve any party to produce and permit the inspection and copying or photographing, by
re-direct interrogatories upon a party who has served cross-interrogatories. Within or on behalf of the moving party, of any designated documents, papers, books,
three (3) days after being served with re-direct interrogatories, a party may serve re- accounts, letters, photographs, objects or tangible things, not privileged, which
cross-interrogatories upon the party proposing to take the deposition. constitute or contain evidence material to any matter involved in the action and
which are in his possession, custody or control; or (b) order any party to permit
5. Supposing the party sought to be examined refused to appear? The entry upon designated land or other property in his possession or control for the
attendance of witnesses may be compelled by the use of subpoena under Rule 21. purpose of inspecting, measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. The order shall specify the time,
6. Where do you apply the sub-poena? SECTION 5. Subpoena for depositions. place and manner of making the inspection and taking copies and photographs, and
— Proof of service of a notice to take a deposition, as provided in Sections 15 and may prescribe such terms and conditions as are just.
25 of Rule 23, shall constitute sufficient authorization for the issuance of subpoenas
for the persons named in said notice by the clerk of the court of the place in which 18. When may the physical and mental examination be ordered. In an action in
the deposition is to be taken. The clerk shall not, however, issue a subpoena duces which the mental or physical condition of a party is in controversy, the court in
tecum to any such person without an order of the court. In short, the court of the which the action is pending may in its discretion order him to submit to a physical
place where the deposition shall be taken. or mental examination by a physician (Section 1, Rule 28).

7. What may be asked during the taking of deposition? Rule 23, SECTION 2. 19. The order for examination may be made only on motion for good cause
Scope of examination. — Unless otherwise ordered by the court as provided by shown and upon notice to the party to be examined and to all other parties,
Section 16 or 18 of this Rule, the deponent may be examined regarding any matter, and shall specify the time, place, manner, conditions and scope of the
not privileged, which is relevant to the subject of the pending action, whether examination and the person or persons by whom it is to be made (Section 2,
relating to the claim or defense of any other party, including the existence, Rule 28).
description, nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having knowledge of 20. If requested by the party examined, the party causing the examination to be made
relevant facts. shall deliver to him a copy of a detailed written report of the examining physician
setting out his findings and conclusions. After such request and delivery, the party
8. Deposition before action or pending appeal. Rule 24. SECTION 1. causing the examination to be made shall be entitled upon request to receive from
Depositions Before Action; Petition. — A person who desires to perpetuate his the party examined a like report of any examination, previously or thereafter made,
own testimony or that of another person regarding any matter that may be of the same mental or physical condition. If the party examined refuses to deliver
cognizable in any court of the Philippines, may file a verified petition in the court such report, the court on motion and notice may make an order requiring delivery
of the place of the residence of any expected adverse party. on such terms as are just, and if a physician fails or refuses to make such a report
the court may exclude his testimony if offered at the trial (Section 3, Rule 28).
9. Written interrogatories. RULE 25. SECTION 1. Interrogatories to Parties;
Service Thereof. — Under the same conditions specified in Section 1 of Rule 23, 21. By requesting and obtaining a report of the examination so ordered or by taking
any party desiring to elicit material and relevant facts from any adverse parties shall the deposition of the examiner, the party examined waives any privilege he may
file and serve upon the latter written interrogatories to be answered by the party have in that action or any other involving the same controversy, regarding the
served or, if the party served is a public or private corporation or a partnership or testimony of every other person who has examined or may thereafter examine him
association, by any officer thereof competent to testify in its behalf. N.B. Written in respect of the same mental or physical examination (Section 4, Rule 28).
interrogatories are directed to adverse party, not to strangers.
22. Refusal to comply with modes of discovery. Refusal to answer – the requesting
10. Interrogatories under Rule 23 & Rule 25: Rule 23 – 1) There is deposition party may apply for subpoena to Court where the deposition is being taken.
officer; 2) Questions are prepared beforehand; 3) Party or not may be taken. Rule
25 – 1) No deposition officer; 2) Directed to parties; 3) Not applicable to stranger. 23. Other consequences. If the a party refuses to answer as ordered or to produce a
document or entry upon the land under Rule 27, or refuses despite order to submit
11. Effect of failure to serve written interrogatories. Unless thereafter allowed by himself to physical and mental examination, the Court, upon motion, issue: 1) An
the court for good cause shown and to prevent a failure of justice, a party not served order that the matters regarding which the questions were asked, or the character
with written interrogatories may not be compelled by the adverse party to give or description of the thing or land, or the contents of the paper, or the physical or
testimony in open court, or to give a deposition pending appeal (Section 6, Rule mental condition of the party, or any other designated facts shall be taken to be
25). established for the purposes of the action in accordance with the claim of the party
obtaining the order; 2) An order refusing to allow the disobedient party to support
12. Admission by the adverse Party. RULE 26, SECTION 1. Request for or oppose designated claims or defenses or prohibiting him from introducing in
Admission. — At any time after issues have been joined, a party may file and serve evidence designated documents or things or items of testimony, or from
upon any other party a written request for the admission by the latter of the introducing evidence of physical or mental condition; 3) An order striking out
genuineness of any material and relevant document described in and exhibited with pleadings or parts thereof, or staying further proceedings until the order is obeyed,
the request or of the truth of any material and relevant matter of fact set forth in or dismissing the action or proceeding or any part thereof, or rendering a judgment
the request. Copies of the documents shall be delivered with the request unless by default against the disobedient party; 4) In lieu of any of the foregoing orders or
copies have already been furnished. in addition thereto, an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a physical or mental
13. Failure to act on the request for admission, the effect is implied admission. examination (Section 3, Rule 29).
RULE 26, SECTION 2. Implied Admission. — Each of the matters of which
an admission is requested shall be deemed admitted unless, within a period XI. DEMURRER TO EVIDENCE
designated in the request, which shall not be less than fifteen (15) days after service
thereof, or within such further time as the court may allow on motion, the party to 1. When is the proper time to file Demurrer to Evidence? After the plaintiff
whom the request is directed files and serves upon the party requesting the has completed the presentation of his evidence, the defendant may move for
admission a sworn statement either denying specifically the matters of which an dismissal on the ground that upon the facts and the law the plaintiff has shown
admission is requested or setting forth in detail the reasons why he cannot truthfully no right to relief.
either admit or deny those matters.

14. Applicability of the admission. RULE 26, SECTION 3. Effect of Admission. 2. What is the effect if the motion is denied? How about if the motion is
— Any admission made by a party pursuant to such request is for the purpose of granted but reversed on appeal? If his motion is denied, he shall have the
the pending action only and shall not constitute an admission by him for any other right to present evidence. If the motion is granted but on appeal the order of
purpose nor may the same be used against him in any other proceeding. dismissal is reversed, he shall be deemed to have waived the right to present
evidence.
15. Effect of failure to file and serve request. RULE 26, SECTION 5. Effect of
Failure to File and Serve Request for Admission. — Unless otherwise allowed Motion to Dismiss Demurrer
by the court for good cause shown and to prevent a failure of justice, a party who 1. MTD in Rule 16 is made 1. It is made after the
fails to file and serve a request for admission on the adverse party of material and before answer. plaintiff rests its case.
relevant facts at issue which are, or ought to be, within the personal knowledge of
the latter, shall not be permitted to present evidence on such facts. 2. There are several grounds. 2. There is only one ground.

16. Po vs. CA, 164 SCRA 668. A party should not be compelled to admit matters of 3. If denied, defendant may 3. If denied, the defendant
fact already admitted by his pleading and concerning which there is no issue, nor file answer. will present evidence.
should he be required to make a second denial of those already denied in his answer
4. When granted, the 4. When granted, it may not be
to the complaint. A request for admission is not intended to merely reproduce or
complaint may be filed re-filed. The remedy is appeal.
reiterate the allegations of the requesting party's pleading but should set forth
except for, prescription, res
relevant evidentiary matters of fact, or documents described in and exhibited with judicata, or claim is
the request, whose purpose is to establish said party's cause of action or defense. extinguished.
Unless it serves that purpose, it is, as correctly observed by the Court of Appeals,
'pointless, useless' and 'a mere redundancy.'
the notice of the order denying or dismissing the motion for reconsideration
within which to file the notice of appeal. The “fresh period” rule applies not
only in Rule 41 (RTC-CA), but also in Rule 40 (MTC-RTC), Rule 42
Civil Demurrer Criminal Demurrer (Petrev, RTC-CA), Rule 43 (Petrev, QJA-CA), and Rule 45 (RTC, CA-
1. Leave of court is not required. 1. It may be with or without leave SC). This was adopted to standardize the appeal period. (Neypes vs. Court
of court. of Appeals, 469 SCRA 633).

2. If granted, the order is 2. If granted, the order is not 2. What may be appealed? Judgment and Final Order.
appealable. appealable.
3. Are all final orders appealable? NO. Dismissal of an action without
3. If denied, the defendant may 3. If denied, the accused may
prejudice is not appealable.
present evidence. present evidence if he filed it with
leave of court.
4. What judgments or orders cannot be appealed? (a) An order denying a
4. It cannot be granted motu 4. The Court may dismiss the case motion for new trial or reconsideration; (b) An order denying a petition for
propio. motu propio (Sec. 23, Rule 119). relief or any similar motion seeking relief from judgment; (c) An 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)
XII. JUDGMENT ON THE PLEADING & SUMMARY An order of execution; (g) A judgment or final order for or against one or
JUDGMENT more of several parties or in separate claims, counterclaims, cross-claims and
third-party complaints, while the main case is pending, unless the court allows
1. When is it available? RULE 34, SECTION 1. Judgment on the Pleadings. — an appeal therefrom; and (h) An order dismissing an action without prejudice
Where an answer 1) fails to tender an issue, or otherwise 2) admits the material (Section 1, Rule 41). NOTE: if the above order cannot be appealed, the
allegations of the adverse party's pleading, the court may, on motion of that party, remedy is CERTIORARI UNDER RULE 65.
direct judgment on such pleading. However, in actions for declaration of nullity or
annulment of marriage or for legal separation, the material facts alleged in the 5. Petition for Relief from Judgment. A) What is the subject matter of the
complaint shall always be proved. Petition? – Judgment, Final order; Other proceedings; Order denying the
appeal (Sec.2, Rule 38). B) What are the grounds? - Fraud, Accident, Mistake,
2. When do we say that an answer fails to tender an issue? Answer: If it does not Excusable Negligence (FAME). C) Where to file? - Court which rendered the
comply with the requirements of specific denial under Sections 8 and 10 of Rule 8. judgment, final order, order denying appeal or court which conducted the
proceedings.
3. Section 8, Rule 8. How to Contest Such Documents. — When an action or
defense is founded upon a written instrument, copied in or attached to the 6. What is the period to file Petition for Relief from Judgment? The appeal
corresponding pleading as provided in the preceding section, the genuineness and is taken by filing a notice of appeal with the court that rendered the judgment
due execution of the instrument shall be deemed admitted unless the adverse party, or final order appealed from. The notice of appeal shall indicate the parties to
under oath, specifically denies them, and sets forth what he claims to be the facts; the appeal, the judgment or final order or part thereof appealed from, and state
but the requirement of an oath does not apply when the adverse party does not the material dates showing the timeliness of the appeal. A record on appeal
appear to be a party to the instrument or when compliance with an order for an shall be required only in special proceedings and in other cases of multiple or
inspection of the original instrument is refused. separate appeals.

4. Section 10, Rule 8. Specific Denial. — A defendant must specify each material 7. Annulment of Judgment. What is the coverage? This Rule shall govern the
allegation of fact the truth of which he does not admit and, whenever practicable, annulment by the Court of Appeals of judgments or final orders and
shall set forth the substance of the matters upon which he relies to support his resolutions in civil actions of Regional Trial Courts for which the ordinary
denial. Where a defendant desires to deny only a part of an averment, he shall remedies of new trial, appeal, petition for relief or other appropriate remedies
specify so much of it as is true and material and shall deny only the remainder. are no longer available through no fault of the petitioner (Sec. 1, Rule 47).
Where a defendant is without knowledge or information sufficient to form a belief
as to the truth of a material averment made in the complaint, he shall so state, and 8. What are the ground? Extrinsic Fraud and Lack of Jurisdiction. Fraud is
this shall have the effect of a denial. regarded as extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court or where it operates upon matters
5. What are the different manners of denying an allegation? 1) By specifically pertaining not to the judgment itself but the manner in which it is procured.
denying the allegation and setting forth the substance upon which one relies his The overriding consideration when extrinsic fraud is alleged is that the
denial. 2) By specifically denying some part of the allegation and denying the rest. fraudulent scheme of the prevailing party litigant prevented a party from
3) By specifically denying the allegation for lack of knowledge sufficient to form a having his day in court (Alaban vs. CA, 470 SCRA 697).
belief as to the truth or falsity of the allegation.
9. What is the period to file? If based on extrinsic fraud, the action must be
6. What is the effect of defective denial? RULE 8, SECTION 11. Allegations filed within four (4) years from its discovery; and if based on lack of
Not Specifically Denied Deemed Admitted. Material averment in the jurisdiction, before it is barred by laches or estoppel.
complaint, other than those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied. Allegations of usury in a complaint 10. Does RTC have jurisdiction to entertain petition for annulment of
to recover usurious interest are deemed admitted if not denied under oath. judgment of MTC? YES. An action to annul a judgment or final order of a
Municipal Trial Court shall be filed in the Regional Trial Court having
7. Who may file a motion for summary judgment? RULE 25, SECTION 1. jurisdiction over the former. It shall be treated as an ordinary civil action and
Summary Judgment for Claimant. — A party seeking to recover upon a claim, Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto (Section. 4,
counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after Rule 47).
the pleading in answer thereto has been served, move with supporting affidavits,
depositions or admissions for a summary judgment in his favor upon all or any part XIV. PROVISIONAL REMEDIES
thereof. SECTION 2. Summary Judgment for Defending Party. — A party
against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief 1. Attachment. It is a provisional remedy issued by the court where the action is
is sought may, at any time, move with supporting affidavits depositions or pending levying the property or properties of the defendant to serve as security for
admissions for a summary judgment in his favor as to all or any part thereof. whatever judgment the said court might render in favor of the plaintiff. It is
provisional because it constitutes temporary measure availed of during the
8. When is this remedy available? When there is no genuine issue. Although the pendency of action and they are ancillary because it is dependent upon the main
defendant denies the material allegation in the claim, but the denial is sham. action.

Judgment on the Pleadings Summary Judgment 2. Will the writ of preliminary attachment be dissolved if the parties had
There is absence of factual issue Answers tenders an issue, but the already entered into compromise agreement? NO. The parties to the
because the answer tenders no issue is not genuine. compromise agreement should not be deprived of the protection provided by an
issue. attachment lien. If the rule were otherwise, it is easier for the debtor whose
Only the claiming party can file The motion may be filed by the property was attached to have the lien released by entering into a compromise
the motion. claiming party or defending party. agreement without the intention of actually honoring it (Lim, Jr., vs. spouses
Lazaro, G.R. No. 185734, July 3, 2013).
It is based on pleadings alone. It is based on pleadings, affidavits,
depositions and admissions.
3. What is the nature of attachment? Attachment is in the nature of a proceeding
quasi in rem (Banco-Espanol vs. Palanca, 37 Phil. 921, 928) although sometimes
Only three (3) day notice is Ten (10) day notice is required.
required. referred to as action in rem (Valdevieso vs. Damalerio, 421 SCRA 664, 671). This
classification becomes relevant only when the defendant does not appear in the
action as when the defendant is a non-resident who, at the same time, is outside
of the Philippines.
XIII. POST JUDGMENT REMEDIES
4. What is the purpose of preliminary attachment? Preliminary attachment is
1. What is “Neypes Rule”? If the motion for reconsideration or new trial is designed to seize the property of the debtor before final judgment and put the
denied, the movant has a “fresh period” of fifteen (15) days from receipt of same in custodia legis even while the action is pending for the satisfaction of a later
judgment and to acquire jurisdiction over the property in those instances where temporary restraining order effective for only seventy-two (72) hours from issuance
personal or substituted services of summons on the defendant cannot be but he shall immediately comply with the provisions of the next preceding section
effected. (Philippine Commercial International Bank vs. Alejandro, 533 SCRA as to service of summons and the documents to be served therewith (Sec. 5, Rule
738). 58).

5. Is it necessary for the court to have acquired jurisdiction over the person 18. What should the judge where the case is raffled do after the EJ issued the 72-
of the defendant when the writ is implemented? Yes, because under the hour TRO? Within the aforesaid seventy-two (72) hours, the judge before whom
rules: “No levy on attachment pursuant to the writ issued under Section 2 hereof shall be the case is raffled shall conduct a summary hearing to determine whether the
enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together temporary restraining order shall be extended until the application for preliminary
with a copy of the complaint, the application for attachment, the applicant's affidavit and bond, injunction can be heard. In no case shall the total period of effectivity of the
and the order and writ of attachment, on the defendant within the Philippines.” (Sec. 5, Rule temporary restraining order exceed twenty (20) days, including the original seventy-
57) Thus, there must be prior or contemporaneous service of summons. two hours provided herein (Sec. 5, Rule 57).

6. Are there exceptions to prior or contemporaneous service of summons? 19. Is 20-day TRO extendible? NO. The Rules provide: “In no case shall the total
Yes, under the rules: “The requirement of prior or contemporaneous service of period of effectivity of the temporary restraining order exceed twenty (20) days,
summons shall not apply where the summons could not be served 1. personally including the original seventy-two hours provided herein.” (Sect. 5, Rule 58).
or by substituted service despite diligent efforts, or 2. the defendant is a resident
of the Philippines temporarily absent therefrom, or 3. the defendant is a non-
resident of the Philippines, or 4. the action is one in rem or quasi in rem.”(Sec. 5, XV. SPECIAL CIVIL ACTION
Rule 57).
1. What is interpleader? It is a special civil action filed by a person against whom two
7. May a property under custodia legis be attached? Yes. Under the Rules: If conflicting claims are made upon the same subject matter and over which he claims
the property sought to be attached in custodia legis, a copy of the writ of attachment no interest, or if he claims interest, the same is not disputed by the parties. This
shall be filed with the proper court or quasi-judicial agency, and notice of the action is brought against the conflicting claimants to compel them to interplead and
attachment served upon the custodian of such property (Sec. 7, Rule 57). litigate their claims among themselves.

8. Supposing sheriff attached the property of the third party, what are the 2. When is interpleader proper? Whenever conflicting claims upon the same subject
remedies of the latter if any? He may avail the remedy of terceria (Sec. 14, Rule matter are or may be made against a person who claims no interest whatever in the
57). The third party-claimant may also invoke the court’s authority in the same subject matter, or an interest which in whole or in part is not disputed by the
case and move for a summary hearing on his claim. If his claim is meritorious, claimants, he may bring an action against the conflicting claimants to compel them
the court shall lift the attachment (Ching vs. CA, 423 SCRA 356). The third party to interplead and litigate their several claims among themselves (Sec. 1, Rule 62).
may file a separate civil action to nullify the levy (Ching, id.).
3. What is the jurisdiction of interpleader? It depends on the subject matter of
9. What are grounds which may be invoked in the motion to discharge the conflicting claims: 1) If the subject matter of the action is personal property
attachment? 1) Attachment was improperly or irregularly issued; 2) Bond is – determine the value of the property. 2) If the conflicting claims involve right to
insufficient; 3) Attachment is excessive with respect to the excess; 4) Property is receive particular sum – determine the amount of the sum claimed. 3) If the subject
exempt from execution. matter is real property – determine the assessed value of the property. 4) If the
subject matter is incapable of pecuniary estimation – RTC.
10. May a party whose property was attached recover damages from the
attaching party though the former lost the case? Yes. This is implied from 4. Declaratory Relief. Declaratory relief is defined as an action by any person
Section 20, Rule 57 which provides that: “An application for damages on account interested in a deed, will, contract or other written instrument, executive order or
of improper, irregular or excessive attachment must be filed before the trial or resolution, to determine any question of construction or validity arising from the
before appeal is perfected or before the judgment becomes executory, with due instrument, executive order or regulation, or statute; and for a declaration of his
notice to the attaching party and his surety or sureties.” (Carlos vs. Sandoval, 471 rights and duties thereunder. The only issue that may be raised in such a petition
ACRA 266, 289-290). is the question of construction or validity of provisions in an instrument or statute
(Province of Camarines Sur vs. CA, 600 SCRA 569).
11. Injunction. Preliminary injunction is an order granted at any stage of an action,
prior to the judgment or final order, requiring a party, court, agency or person to
5. PLEASE TAKE NOTE: Declaratory relief must be filed before any breach or
perform or refrain from performing an act or acts. (Sec. 1, Rule 58). Preliminary
violation. If the law or contract has been violated prior to the filing of declaratory
mandatory injunction – order to require the doing of an act. Preliminary
relief, the latter recourse should be dismissed (Malana vs. Tappa, 600 SCRA 189).
prohibitory injunction – order to refrain from doing an act.
BUT: If the breached occurred during the pendency of declaratory relief, the latter
will converted to ordinary civil action (Sec. 6, Rule 63).
12. What are the grounds for the issuance of a preliminary injunction? Section
3, Rule 58 can be capsulized as follows: (1) there exists a clear and unmistakable
6. What are the subject matter in a petition for declaratory relief? Deed; Will;
right to be protected; (2) this right is directly threatened by an act sought to be
Contract or other written instrument; Statute; Executive order or regulation;
enjoined; (3) the invasion of the right is material and substantial; and (4) there is
Ordinance; Any other governmental regulation. NOTE: These are exclusive.
an urgent and paramount necessity for the writ to prevent serious and irreparable
damage (Sps. Dulnuan vs. MBTC, July 8, 2015).
7. Which court has jurisdiction? The RTC has jurisdiction as declaratory relief raises
13. Is the rule on contemporaneous service of summons applicable to issue which is incapable of pecuniary estimation (Sec. 19[1], BP 129; Sec.1, Rule
application for preliminary injunction? YES. When an application for a writ 63). SC has no original jurisdiction over declaratory relief (Clark Investors and
of preliminary injunction or a temporary restraining order is included in a Locators Assn. vs. Secretary, July 6, 2015). If the action is for quieting of title to
complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall real property, the jurisdiction depends upon the assessed value of the real property
be raffled only after notice to and in the presence of the adverse party or the (Heirs of Valeriano S. Concha vs. SPS Lumucso, 540 SCRA 1, 16). Action for
person to be enjoined. In any event, such notice shall be preceded, or reformation of contract should be treated as action in capable of pecuniary
contemporaneously accompanied, by service of summons, together with a copy estimation, hence RTC. An action for consolidation of ownership is an action
of the complaint or initiatory pleading and the applicant's affidavit and bond, incapable of pecuniary estimation (Cruz vs. Leis, 327 SCRA 570).
upon the adverse party in the Philippines (Sec. 4 (c), Rule 58).
8. Certiorari. It is also called “prerogative writ” because it is not demandable as a
14. Are there exceptions? YES However, where the summons could not be served matter of right. Its purpose is the correction of errors of jurisdiction which includes
personally or by substituted service despite diligent efforts, or the adverse party is commission of grave abuse of discretion amounting to lack or excess of jurisdiction.
a resident of the Philippines temporarily absent therefrom or is a nonresident It is an original and independent action and not a mode of appeal. Certiorari cannot
thereof, the requirement of prior or contemporaneous service of summons shall be substitute for appeal or lost appeal.
not apply (Sec. 4 (c), Rule 58).
9. Rule 45 vs. Rule 65. 1) Certiorari under Rule 45 is a mode of appeal while certiorari
15. What is temporary restraining order? It is an order issued to preserve the status under Rule 65 is a special civil action. 2) Certiorari under Rule 45 is just a
quo until the hearing of the application for a writ of preliminary injunction because continuation of the appellate process of the original case, but under Rule 65, it is
preliminary injunction cannot be issued ex-parte (Bacolod Water District vs. an original action. 3) Certiorari under Rule 45 seeks to review the judgment while
Labayen, 446 SCRA 110). By its nature, it could be considered as a provisional certiorari under Rule 65 seeks to annul the proceedings or judgment. 4) Certiorari
remedy within a provisional remedy because it is issued to preserved the status quo under Rule 45 raises questions of law while under Rule 65, it raises question of
for a limited period until the court decides to issue a writ of preliminary injunction. jurisdiction. 5) Certiorari under Rule 45 is to be filed within 15 days from receipt of
judgment or final order while the period to file certiorari under Rule 65 is either 30
16. May TRO be issued ex-parte? YES. If it shall appear from facts shown by or 60 day. 5) Certiorari under Rule 45 does not require filing of MR, while in
affidavits or by the verified application that great or irreparable injury would result certiorari under Rule 65, the filing of MR is required. 6) The parties in certiorari
to the applicant before preliminary injunction can be heard, the court to which the under Rule 45 are the same parties to the action while the parties in Rule 65 are the
application for preliminary injunction was made, may issue ex parte a temporary tribunal, board or officer exercising quasi-judicial function. 7) Certiorari under Rule
restraining order to be effective only for a period of twenty (20) days from service 45 may only be filed before SC, while certiorari under Rule 65 may be filed with the
on the party or person sought to be enjoined x x x. (Section 5, Rule 58). RTC.

17. May TRO be issued by the EJ? If the matter is of extreme urgency and the 10. Essential requisites for a petition for certiorari. 1. The petition is directed
applicant will suffer grave injustice and irreparable injury, the executive judge of a against a tribunal, board, or officer exercising judicial or quasi-judicial functions. 2.
multiple-sala court or the presiding judge of a single-sala court may issue ex-parte a 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. 3. There is position, arose; nor to authorize an action for damages in accordance with the
neither appeal nor plain, speedy or adequate remedy in the ordinary course of law provisions of the next preceding section unless the same be commenced within one
for the purpose annulling or modifying the proceeding. (1) year after the entry of the judgment establishing the petitioner's right to the
office in question (Sec. 11, Rule 66).
11. Expanded scope of Certiorari. “Petition for certiorari and prohibition are
appropriate remedies to raise constitutional issues and to review and/or prohibit or 25. Expropriation. Can the government divert the use of property taken different
nullify the acts of legislative and executive officials” (Araullo vs. Aquino, III, July from the purpose for which the
1, 2014). The basis of this pronouncement is the second paragraph of Section 1, petition was filed? No. a condemnor should commit the use of the property
Article VIII of the Constitution. pursuant to the purpose stated in the petition for expropriation, failing which it
should file another petition for new purpose. If not, then it behooves the
12. Does the filing of petition stay the proceedings? NO. The petition shall not condemnor to return the said property to its owner, if the latter so desires (Vda.
interrupt the course of the principal case unless a temporary restraining order or a De Ounao vs. Republic, 642 SCRA 385, 409).
writ of preliminary injunction has been issued against the public respondent from
further proceeding in the case (Sec. 7, Rule 65). 26. May the defendant be declared in default in presenting evidence on just
compensation? No. At the trial of the issue of just compensation, whether or not
13. What is the period to file the petition? The petition may be filed not later than a defendant has previously appeared or answered, he may present evidence as to
sixty (60) days from notice of the judgment, order or resolution sought to be the amount of the compensation to be paid for his property, and he may share in
assailed in the Supreme Court or, if it relates to the acts or omissions of a lower the distribution of the award. (Sec. 3, Rule 67).
court or of a corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court. It 27. Which court has jurisdiction? It is the RTC has jurisdiction because petition for
may also be filed in the Court of Appeals whether or not the same is in aid of its expropriation is an action incapable of pecuniary estimation regardless of the value
appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it of the subject property (Barangay San Roque vs. Hiers of Pastor, 334 SCRA
involves the acts or omissions of a quasi-judicial agency, and unless otherwise 127, 134).
provided by law or these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals. (Sec. 4, Rule 65). 28. Foreclosure of Real Estate Mortgage. In an action for the foreclosure of a
mortgage or other encumbrance upon real estate, the complaint shall set forth the
14. May the period be extended? Yes, when: Most persuasive and weighty reasons. date and due execution of the mortgage; its assignments, if any; the names and
To relieve a litigant from injustice. Good faith of the defaulting party. Compelling residences of the mortgagor and the mortgagee; a description of the mortgaged
circumstances. Merits of the case. Cause not entirely attributable to the defaulting property; a statement of the date of the note or other documentary evidence of the
party. No showing that it is frivolous. In the name of substantial justice and fair obligation secured by the mortgage, the amount claimed to be unpaid thereon; and
play. Importance of issues involved (Labao vs. Flores, 634 SCRA 723). the names and residences of all persons having or claiming an interest in the
property subordinate in right to that of the holder of the mortgage, all of whom
15. Prohibition. It is an extra-ordinary writ commanding the tribunal, corporation, shall be made defendants in the action (Section 1, Rule 68).
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, to desist from further proceedings when such are conducted without 29. Please take note: In a indebtedness subject to mortgage, the creditor has the
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting following alternative remedies: 1) To file an action for collection of sum of money.
to lack or excess of jurisdiction, there being no appeal or any other plain, speedy, 2) To foreclose the mortgage. The remedies are mutually exclusive; such that the
and adequate remedy in the ordinary course of law (Sec. 2, Rule 65). availment of one, excludes the other. Therefore, if one files a collection suit and
then thereafter files a petition for foreclosure of mortgage, the same constitute a
16. Requisites. (a) it must be directed against a tribunal, corporation, board or person splitting of cause of action (Bank of America, NT & SA vs. Amreican Realty
exercising functions, judicial or ministerial; (b) the tribunal, corporation, board or Corp, 321 SCRA 659, 667-669; Marilag vs. martinez, July 22, 2015).
person has acted without or in excess of its jurisdiction, or with grave abuse of
discretion; and (c) there is no appeal or any other plain, speedy, and adequate 30. Jurisdiction of judicial foreclosure. Judicial foreclosure is a real action. Thus,
remedy in the ordinary course of law (Belmonte vs. Deputy Ombudsman, jurisdiction depends on the assessed value of real property. Thus, if the value of
January 13, 2016). real property is 20K below in the provinces of 50K below in the NCR, the
jurisdiction is with the MTC; otherwise, it is the RTC.
17. Mandamus. When any tribunal, corporation, board, officer or person unlawfully
neglects the performance of an act which the law specifically enjoins as a duty 31. What should the judgment in judicial foreclosure contain? Ascertainment of
resulting from an office, trust, or station, or unlawfully excludes another from the the amount due to the plaintiff upon the mortgage debt or obligation, including
use and enjoyment of a right or office to which such other is entitled, and there is interest and other charges as approved by the court, and costs; The sum so found
no other plain, speedy and adequate remedy in the ordinary course of law, the due; Order the amount found due to be paid to the court or to the judgment
person aggrieved thereby may file a verified petition for mandamus to command obligee within a period of not less than ninety (90) days nor more than one hundred
the respondent to do the act required to be done to protect the rights of the twenty (120) days from the entry of judgment, and admonition that in default of
petitioner (Sec. 3, Rule 65). such payment the property shall be sold at public auction to satisfy the judgment
(Section 2, Rule 68).
18. Subjects of Mandamus. A. Neglect to perform an act which the specifically
enjoins as a duty. B. Unlawful exclusion of another from the use and enjoyment of 32. What is equity of redemption? It is the period within which the mortgagor may
a right or office to which such other is entitled. start exercising his equity of redemption, which is the right to extinguish the
mortgage and retain ownership of the property by paying the debt. The payment
19. Mandamus will lie to compel the doing of a ministerial act. The act is may be made even after the foreclosure sale provided it is made before the sale is
ministerial if the act is should be performed under a given state of facts, in a confirmed by court (GSIS vs. CFI, 175 SCRA 19, 25).
prescribed manner, in obedience to the mandate of a legal authority, without regard
to the exercise of judgment upon the propriety or impropriety of the act done 33. What is the effect if the mortgagor failed to pay the sum due within the
(Cudia vs. Superintendent of PMA, February 24, 2015). period given? The court, upon motion, shall order the property to be sold in the
manner and under the provisions of Rule 39 and other regulations governing sales
20. Quo warrato. It is a proceeding generally defined as an action against a person who of real estate under execution (Sec. 3, Rule 57). There should be motion, but the
usurp, intrudes into, or unlawfully holds or exercise a public office (Tecson vs. motion is ex-parte (Govt. of PI vs. De Las Lajigas, 55 Phil 668, 672).
COMELEC, 424 SCRA 277, 326) or even a public franchise (Sec. 1, Rule 66).
21. Quo warranto that may be brought by the government: (a) Against a person 34. What should the mortgagee do, after the sale of the mortgage property is
who usurps, intrudes into, or unlawfully holds or exercises a public office, position made? He should file a motion for confirmation of sale (Sec. 3. Rule 68). Here
or franchise; (b) Against a public officer who does or suffers an act which, by the the motion requires notice and hearing (Tiglao vs. Botones, 90 Phil. 275, 278).
provision of law, constitutes a ground for the forfeiture of his office; or (c) Against The confirmation of sale shall operate to divest the rights in the property of all the
an association which acts as a corporation within the Philippines without being parties to action and vest the rights in the purchaser, subject to the rights of
legally incorporated or without lawful authority so to act (Sec. 1, Rule 66). redemption under the law (Sec. 3, Rule 68). Order of confirmation is appealable.

22. May it be filed by an individual? A person claiming to be entitled to a public 35. What is the effect of finality of the confirmation of the sale? Upon the finality
office or position usurped or unlawfully held or exercised by another may bring an of the order of confirmation or upon the expiration of the period of redemption
action therefor in his own name (Sec. 5, Rule 66). when allowed by law, the purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property unless a third party is actually
23. What is the jurisdiction and venue of petition? An action under the preceding holding the same adversely to the judgment obligor. The said purchaser or last
six sections can be brought only in the Supreme Court, the Court of Appeals, or redemptioner may secure a writ of possession, upon motion, from the court which
in the Regional Trial Court exercising jurisdiction over the territorial area where ordered the foreclosure (Sec. 3, Rule 68). The motion is ex-parte (Carlos vs. CA,
the respondent or any of the respondents resides, but when the Solicitor General 537 SCRA 247, 253).
commences the action, it may be brought in a Regional Trial Court in the City of
Manila, in the Court of Appeals, or in the Supreme Court (Sec. 7, Rule 66). 36. Is the mortgagee entitled to deficiency? Yes. If upon the sale of any real
property, there be a balance due to the plaintiff after applying the proceeds of the
24. What is the period for the filing of petition? Nothing contained in this Rule shall sale, the court, upon motion, shall render judgment against the defendant for any
be construed to authorize an action against a public officer or employee for his such balance for which he may be personally liable to the plaintiff, upon which
ouster from office unless the same be commenced within one (1) year after the execution may issue immediately if the balance is all due at the time of the rendition
cause of such ouster, or the right of the petitioner to hold such office or of the judgment; otherwise, the plaintiff shall be entitled to execution at such time
as the balance remaining becomes due under the terms of the original contract, determined by the judgment of the lower court on or before the tenth day of each
which time shall be stated in the judgment (Sec. 6, Rule 68). succeeding month or period (Sec. 19, Rule 70).

37. Is there still a need to file a separate case to recover the deficiency? No need. XVI. EXECUTION
A motion for the recovery of deficiency can be filed in the same court where judicial
foreclosure was filed (Sec. 6, Rule 68). 1. What is the lifetime of the writ of execution? The writ shall continue in effect
during the period within which the judgment may be enforced. Hence the writ may
38. Forcible entry and unlawful Detainer. What are the two causes of actions be enforced within the five-year period from entry of judgment because within that
under Rule 70? 1) Forcible entry – an action to recover possession of a property period, the writ may be enforced by motion (Sec. 6, Rule 39).
from the defendant whose occupation thereof is illegal from the beginning since he
acquired possession by force, intimidation, threat, strategy or stealth. 2) Unlawful 2. How may final and executory judgment or order be executed? 1) Within five
detainer – an action for recovery of possession from the defendant whose (5) years from the date of its entry. 2) After the lapse of such time, and before it is
possession of the property was lawful from the beginning, but became illegal when barred by the statute of limitations.
he continued his possession despite the termination of his right thereunder
(Sarmieta vs. Manalite Homeowners Association, 632 SCRA 538, 546). 3. What is revival of judgment? judgment which has become dormant after the
passage of five years without it being executed upon motion of the prevailing party.
39. What should be alleged in forcible entry? Plaintiff had prior physical possession. It is not intended to re-open any issue affecting the merits of the case judgment
And, that defendant deprived plaintiff of his possession by means of force, debtor’s case nor the propriety or correctness of the first judgment. It is a new and
intimidation, threat, strategy or stealth (FITSS). an independent action separate and distinct from the previous action sought to be
revived. The cause of action is the judgment itself (Saligumba vs. Palanog, 573
40. Please take note: Prior physical possession is the primary consideration in a SCRA 8, 15-16).
forcible entry case. A party who can prove prior physical possession can recover
such possession even against the owner himself (Antazo vs. Doblada, 611 SCRA 4. What are the defenses that may be invoked in an action to revive?
586). Jurisdictional defenses. Prescription. Payment. Other defenses arising after the
finality of judgment NOTE: It may even be subject to counterclaims arising out of
41. What is the meaning of prior physical possession in forcible entry cases? the transactions not connected with the former controversy (Basilonia vs.
While prior physical possession is an indispensable requirement in forcible entry Villaruz, August 10, 2015).
cases, emphasis should be made however that possession can be acquired not only
by material occupation, but also by the fact that a thing is subject to the action of 5. Please take note: The revived judgment may also be enforced by motion within five
one's will or by the proper acts and legal formalities established for acquiring such (5) years from the date of its entry and thereafter by action before it is barred by
right. Possession can be acquired by juridical acts. These are acts to which the law the statute of limitations (Section 6, Rule 39; PNB vs. Bondoc, 14 SCRA 770,
gives the force of acts of possession. Juridical acts were sufficient to establish the 770-772).
plaintiff's prior possession of the subject property. (Mangaser vs. Ugay,
December 3, 2014). 6. Which court has jurisdiction over an action for revival of judgment? Heirs of
Miranda, Sr., vs. Miranda, GR 179638, July 8, 2013 – An action for revival of
judgment may be filed either in the same court where the judgment was rendered
42. What should be alleged in the complaint for unlawful detainer? Possession of
or in the place where the plaintiff or defendant resides or in any other place
the property by the defendant was by contract with or by tolerance of the plaintiff.
designated by the statutes. VENUE: Infante vs. Aran Builders, 531 SCRA 123 –
1) Such possession became illegal upon notice by the plaintiff to the defendant of
the proper venue depends on the determination of whether the present action for
the termination of the latter’s possession. 2) Defendant remained in possession of
revival judgment is real or personal action.
the property and deprived the plaintiff enjoyment thereof. 3) Within one (I) year
from the last demand on the defendant to vacate the property, the plaintiff
7. May the running of the five-year period be interrupted? The Court in certain
instituted the complaint for ejectment (Romullo vs. Samahang
instances, allowed execution of the judgment by mere motion despite the lapse of
Magkakapitbahay ng Bayanihan Compound Homeowners Association, 632
he five-year time. In many instances, the delays in the execution of judgment were
SCRA 411, 419-420).
through causes clearly attributable to the judgment debtor as when he employs legal
maneuvers to block the enforcement of the judgment. Delays attributable to the
43. What is the effect if there is failure to alleged facts necessary for forcible entry
defendant have the effect of suspending the running of the prescriptive period for
and unlawful detainer? The jurisdictional facts must appear on the face of the
the enforcement of the judgment (Camacho vs. CA, 287 SCRA 611; Republic vs.
complaint. When the complaint fails to aver facts constitutive of forcible entry or
CA, 260 SCRA 344, 349-350).
unlawful detainer, as where it does not state how entry was effected or how and
when dispossession started, the remedy should either be an accion publiciana or accion
8. What is the procedure if the property of third party is levied? Basic principle:
reinvindicatoria (Jose vs. Alfuerto, November 26, 2012; Suarez vs. Emboy, March
the execution may issue only upon a person who is a party to the action or
12, 2014).
proceeding, and not against one who did not have his day in court (Philippine
Coconut Federation, Inc., vs. Republic, October 16, 2016). Thus, the property
44. Please take note: When the entry is by stealth, the one-year period to file action not owned by the judgment debtor or by one not a party to the case should not be
should reckoned from the discovery of entry (Nunez vs. SLTEAS Phoenix levied.
Solutions, Inc., 618 SCRA 134, 142). When possession is by tolerance, it becomes
illegal upon demand to vacate by the owner and the possessor by tolerance refuses 9. What is the procedure if the property of third party is levied? Under the Rules,
to comply with such demand (Piedad vs. Gurieza, June 18, 2014). The rule on a person not a party to the action, claiming a property levied upon may execute an
tolerance does not apply in a case where there was forcible entry at the start (Munoz affidavit of his title or right of possession over the property. The affidavit shall be
vs. CA, 214 SCRA 216, 224). Hence, in this case, unlawful detainer is not the proper served upon the officer making a levy and a copy thereof must also be served upon
remedy (Jose vs. Alfuerto, November 26, 2012). the judgment oblige (Section 16, Rule 39). This remedy of the claiming party is
called TERCERIA.
45. Unlawful detainer in lease contract cases. Unless otherwise stipulated, such
action by the lessor shall be commenced only after demand to pay or comply 10. After receipt of the affidavit of claim, what should the sheriff do? The officer
with the conditions of the lease and to vacate is made upon the lessee, or by shall not be bound to keep the property, unless such judgment obligee, on demand
serving written notice of such demand upon the person found on the premises, or of the officer, files a bond approved by the court to indemnify the third-party
by posting such notice on the premises if no person be found thereon, and the claimant in a sum not less than the value of the property levied on. The officer shall
lessee fails to comply therewith after fifteen (15) days in the case of land or five (5) not be liable for damages for the taking or keeping of the property, to any third-
days in the case of buildings (Sec. 2, Rule 70). party claimant if such bond is filed. (Section 16, Rule 39).

46. Demand is to “pay unpaid rental or to vacate”. Will this make out a case of 11. Suppose damage was incurred by the third party on account of officer’s
unlawful detainer? No. It should be demand to pay and vacate. A demand in the taking and keeping of his property, when should the action against the bond
alternative to pay the increased rental or otherwise vacate the land is not a demand be filed? The action should be filed within one hundred twenty (120) days from
that will give rise to an unlawful detainer case (Penas vs. CA, 233 SCRA 744, 747). the date of the filing of the bond. Under Section 16, Rule 39, it is provided that
No claim for damages for the taking or keeping of the property may be enforced
47. Is there default in ejectment cases? NO. Should the defendant fail to answer the against the bond unless the action therefor is filed within one hundred twenty (120)
complaint within the period above provided, the court, motu proprio or on motion days from the date of the filing of the bond.
of the plaintiff, shall render judgment as may be warranted by the facts alleged in
the complaint and limited to what is prayed for therein (Sec. 7, Rule 70). XVII. JURISDICTION IN CRIMINAL CASES

48. What should the court do in case tenancy relationship is alleged in the 1. Requisites for the exercise of criminal jurisdiction.1) Jurisdiction over the
answer? Where tenancy is raised as a defense, the court must conduct a hearing on subject matter. 2) Jurisdiction over the territory. 3) Jurisdiction over the person of
the matter to determine the veracity of the allegations of tenancy (Onquit vs. the accused.
Binamira-Parcia, 297 SCRA 354).
2. Crimes within the jurisdiction of Sandiganbayan. 1) Violations of Republic
49. How to stay the execution of judgment? Appeal is perfected and the defendant Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices
files a sufficient supersedeas bond, approved by the Municipal Trial Court and Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
executed in favor of the plaintiff to pay the rents, damages, and costs accruing down the Revised Penal Code, where one or more of the accused are officials occupying
to the time of the judgment appealed from. (Sec. 19, Rule 70). In the absence of a the following positions in the government, whether in a permanent, acting or
contract, he shall deposit with the Regional Trial Court the reasonable value of the interim capacity, at the time of the commission of the offense. 2) Other offenses
use and occupation of the premises for the preceding month or period at the rate of felonies whether simple or complexed with other crimes committed by the public
officials and employees mentioned in subsection of this section in relation to their even if duly proven at trial, will not be appreciated as such (People vs. Felciano,
office. 3) Criminal cases filed pursuant to and in connection with Executive Order May 5, 2014).
Nos. 1, 2, 14 and 14-A, issued in 1986. (Section 4, RA 8249).
5. When is amendment made without leave of court? A complaint or information
3. Who are officials covered by the jurisdiction of Sandiganbayan? Officials of may be amended without leave of court, at any time before the accused enters his
the executive branch occupying the positions of regional director and higher, plea. After the plea and during trial, a formal amendment by only be made with
otherwise classified as Grade '27' and higher, of the Compensation and Position leave of court and when it is done without causing prejudice to the rights of the
Classification Act of 1989 (Republic Act No. 6758), this includes: (a) accused (Sec. 14, Rule 110).
Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other city 6. When is leave of court required even if amendment is made before plea? First,
department heads; (b) City mayor, vice-mayors, members of the sangguniang amendment which downgrades the nature of the offense charged. Second,
panlungsod, city treasurers, assessors, engineers, and other city department heads; amendment which excludes any accused from the complaint or information.
(c ) Officials of the diplomatic service occupying the position of consul and
higher; (d) Philippine army and air force colonels, naval captains, and all officers of XIX. PROSECUTION OF CIVIL ACTION
higher rank; (e) Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior superintended 1. GENERAL RULE: When a criminal action is instituted, the civil action for the
or higher; (f) City and provincial prosecutors and their assistants, and officials and recovery of the civil liability arising from the offense charged shall be deemed
prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents, impliedly instituted.
directors or trustees, or managers of government-owned or -controlled
corporations, state universities or educational institutions or foundations. Members 2. Consequences when the civil liability is instituted with the criminal action.
of Congress and officials thereof classified as Grade '27' and up under the After the criminal action is commenced, the separate civil action arising therefrom
Compensation and Position Classification Act of 1989. Members of the judiciary cannot be instituted until final judgment has been entered in the criminal action. If
without prejudice to the provisions of the Constitution; Chairmen and members of the criminal action is filed after the said civil action has already been instituted, the
Constitutional Commission, without prejudice to the provisions of the latter shall be suspended in whatever stage it may be found before judgment on the
Constitution; and All other national and local officials classified as Grade '27' and merits (Sec. 2, Rule 111).
higher under the Compensation and Position Classification Act of 1989.
4. Please take note: In cases where none of the accused are occupying positions 3. During the pendency of the criminal action, the running of the period of
corresponding to Salary Grade '27' or higher, as prescribed in the said Republic Act prescription of the civil action which cannot be instituted separately or whose
No. 6758, or military and PNP officer mentioned above, exclusive original proceeding has been suspended shall be tolled. The extinction of the penal action
jurisdiction thereof shall be vested in the proper regional court, metropolitan does not carry with it extinction of the civil action.
trial court, municipal trial court, and municipal circuit trial court, as the case
may be, pursuant to their respective jurisdictions as provided in Batas Pambansa 4. However, the civil action based on delict shall be deemed extinguished if there is a
Blg. 129, as amended. finding in a final judgment in the criminal action that the act or omission from
which the civil liability may arise did not exist (Sec. 2, Rule 111).
5. Further: The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or order of regional trial courts whether in the exercise of 5. When civil action may proceed independently? In the cases provided in Articles
their own original jurisdiction or of their appellate jurisdiction as herein provided. 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action
may be brought by the offended party. It shall proceed independently of the
6. Where should the criminal action be instituted? Where the offense was criminal action and shall require only a preponderance of evidence. In no case,
committed or, where any of its essential ingredients occurred. however, may the offended party recover damages twice for the same act or
omission charged in the criminal action (Sec. 3, Rule 111).
7. What is the effect if the prosecution was not able to prove that the crime was
committed in place where the action was filed? In a case, the prosecution failed 6. Consequences of independent civil action. The right to civil action shall proceed
to show that the offense of estafa under Section 1(b), Art. 315 was committed independently of the criminal action. The quantum of evidence required is
within the jurisdiction of the RTC of Makati. Other than the lone allegation in the preponderance of evidence. There is no need for reservation because the civil action
information, there is nothing in the prosecution evidence which even mentions that is not based on crime.
any of the elements of the offense were committed in Makati. There being no
showing that the offense was committed within Makati, RTC of that City has no 7. Rule on BP 22 cases: The criminal action for violation of Batas Pambansa Blg. 22
jurisdiction over the offense (Trenas vs. People, 664 SCRA 355). shall be deemed to include the corresponding civil action. No reservation to file
such civil action separately shall be allowed. However, a separate proceeding for the
8. What are the exemptions to the rule on venue in criminal cases? 1) Where the recovery of civil liability in cases of violation of BP 22 is allowed when civil case if
offense was committed under the circumstances enumerated in Art. 2, of the RPC. filed ahead of the criminal case (Lo Bun Tiong vs. Balboa, 542 SCRA 504).
2) Where the SC ordered the changed of venue. 3) Where an offense is committed
in train, aircraft, or other public or private vehicle in the course of its trip, the 8. Prejudicial question. A prejudicial question is understood in law to be that which
criminal action need not be instituted in the actual place where the offense was arises in a case the resolution of which is a logical antecedent of the issue involved
committed. It may be instituted and tried in the court of any municipality or in the criminal case, and the cognizance of which pertains to another tribunal. It is
territory where such train, aircraft, or vehicle passed during its trip. The action may determinative of the criminal case, but the jurisdiction to try and resolved it is
also be instituted and tried in the place of departure and arrival (Sec. 15(b), Rule lodged in another tribunal. (Dominguez Agronomic vs. Liclican, 2015).
110). 4) If the crime is committed on board a vessel, it may be instituted in the port
of entry, or territory where the vessel passed during the voyage (Sec. 15(c), Rule 9. Elements. The elements of a prejudicial question are: (a) the previously instituted
110. 5) Where the offense is cognizable by Sandiganbayan; 6) RA 8042, as amended. civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action, and the resolution of such issue determines whether
XVIII. PROSECUTION OF OFFENSES or not the criminal action may proceed.

1. How is criminal action instituted? It depends on whether the offense requires 10. NOTE: There is prejudicial question when the civil case is previously filed. If the
preliminary investigation: If PI is required, then criminal action is instituted by filing criminal case is filed first, there is no pre-judicial question (Pimentel vs. Pimentel,
a complaint or information with the proper officer for the purpose of preliminary 630 SCRA 436).
investigation. If it is not required, by filing a complaint or information directly with
the MTC or MCTC or by filing a complaint with the office of the prosecutor in if 11. Omictin vs. CA, 512 SCRA 70. The petitioner, as the supposed operations
it is in MM or other chartered cities. manager of the corporation filed an estafa case against the private respondent, in
behalf of the corporation. Before the filing of the estafa case, private respondent
2. What is the significance of the institution of criminal action on the filed before the SEC a case questioning the legality of petitioner’s appointment as
prescriptive period of crime? Institution of the criminal action shall interrupt the corporate officer. Private respondent filed a motion to suspend on the ground of
period of prescription of the offense charged unless otherwise provided in special pre-judicial question. THERE IS PRE-JUDICIAL QUESTION. Under the
laws. PLEASE TAKE NOTE: The ruling in Zaldivia vs. Reyes, 211 SCRA 277, circumstances, since the alleged offended party is a corporation, the validity of the
is not anymore controlling that with respect to special laws, prescription is demand for the delivery of the subject vehicles rests upon the authority of the
interrupted by the filing of information in Court (RA 3326). Now, what is person making such a demand on the company’s behalf. Thus, if it is found out
controlling is People vs. Pangilinan, 672 SCRA 105, June 13, 2012 wherein the that the petitioner’s appointment is invalid, he has no right to demand for and in
SC ruled that there is no more distinction between cases under the RPC and those behalf of the corporation and the demand to return is likewise invalid. Hence, a
covered by special laws. prejudicial question.

3. When is objection to the form of the complaint or information be made? 12. An administrative case previously filed can also be used as pre-judicial question to
Objections relating to the form of the complaint or information cannot be made a criminal case. An administrative case is deemed a civil case. (San Miguel
for the first time on appeal. The accused should move before arraignment either Properties vs. Perez, 2013).
for bill of particulars or quashal of the information. If he fails to pursue either
remedy, he is deemed to have waived his objection to any formal defect in the 13. Preliminary Investigation. Rule 43, cannot be availed of to question the
information (People vs. Teodoro, 607 SCRA 307). finding of probable cause of the Sec of DOJ on petition for review. Probable
cause for the purpose of filing an information in court consists in such facts and
4. Is it necessary to allege in the information the qualifying and aggravating circumstances as would engender a well-founded belief that a crime has been
circumstance? What is the effect the information failed to alleged the same? committed and the accused may probably be guilty thereof. The determination of
Every information must state the qualifying and the aggravating circumstances probable cause lies solely within the sound discretion of the investigating public
attending the commission of the crime. Failure to state an aggravating circumstance, prosecutor after the conduct of a preliminary investigation. It is a sound judicial
policy to refrain from interfering with the determination of what constitutes the burden of showing that the evidence of guilt is strong. Bail hearing is
sufficient and convincing evidence to establish probable cause for the prosecution mandatory.
of the accused.
3. Where should application for bail be filed after conviction of the RTC? RTC
14. May hearsay evidence be admitted during preliminary investigation? Yes. even if notice of appeal is filed so long as the records are still with the RTC If the
The evidence necessary to establish probable cause is based only on the likelihood, decision of the RTC convicting the accused changed the nature of the offense from
or probability of guilt. In fact, probable cause can be established with hearsay non-bailable to bailable, the application for bail can only be filed and resolved by
evidence. According to the case of Estrada, hearsay evidence is admissible in the appellate court.
determining probable cause in the preliminary investigation because such
4. Is the condition that the accused be arraigned first before he can post bail
investigation is merely preliminary investigation because such investigation is
valid? In Lavides vs. CA, 324 SCRA 321, the Supreme Court held that the grant
merely preliminary, and does not finally adjudicate rights and obligations of the of bail should not be conditioned upon prior arraignment of the accused. In cases
parties (Estrada vs. Office the Ombudsman. Jan. 21, 2015). where bail is authorized, bail shouuld be granted before arraignment; otherwise, the
accused will be precluded from filing a motion to quash which is to be done before
15. What is an inquest “proceedings”? When a person is lawfully arrested without a arraignment.
warrant involving an offense which requires a preliminary investigation, the
complaint or information may be filed by a prosecutor without need of such
investigation provided an inquest has been conducted in accordance with
existing rules. In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or a peace officer directly with the XXI. ARRIGNMENT
proper court on the basis of the affidavit of the offended party or arresting officer
or person (Section 6, Rule 112). 1. When should plea of guilty to a lesser offense be made? Rule 115. SECTION
2. Plea of Guilty to a Lesser Offense. — At arraignment, the accused, with the
16. Can a person validly arrested without a warrant ask for preliminary consent of the offended party and the prosecutor, may be allowed by the trial court
investigation? Yes. Before the complaint or information is filed, the person to plead guilty to a lesser offense which is necessarily included in the offense
arrested may ask for a preliminary investigation in accordance with this Rule, but charged. After arraignment but before trial, the accused may still be allowed
he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, to plead guilty to said lesser offense after withdrawing his plea of not guilty.
as amended, in the presence of his counsel. Notwithstanding the waiver, he may No amendment of the complaint or information is necessary.
apply for bail and the investigation must be terminated within fifteen (15)
days from its inception. After the filing of the complaint or information in court 2. May it be made after the prosecution rested its case? Yes. It has been held that
without a preliminary investigation, the accused may, within five (5) days from the it may also be considered during trial proper or even after the prosecution has
time he learns of its filing, ask for a preliminary investigation with the same right to finished presenting it evidence and rested its case. It is immaterial that the plea
adduce evidence in his defense as provided in this Rule (Section, 6, Rule 112). bargaining was not made during the pre-trial stage or that it was made only after
the prosecution already presented several witnesses (Daan vs. Sandiganbayan,
17. Duty of the Judge upon filing of the complaint or information. 1) Issue warrant 550 SCRA 233).
of arrest upon finding of probable cause. 2) Dismiss the case if the evidences on
record do not establish probable cause. 3) Order the prosecutor to submit evidence 3. Modes of discovery in criminal cases. SECTION 10. Production or
if he entertains doubt as the existence of probable cause (People vs. Desmund). Inspection of Material Evidence in Possession of Prosecution. — Upon
motion of the accused showing good cause and with notice to the parties, the court,
18. What is the remedy if the case is dismissed by the Court based on lack of in order to prevent surprise, suppression, or alteration, may order the prosecution
probable cause? The proper remedy is appeal. The order dismissing the case for to produce and permit the inspection and copying or photographing of any written
lack of probable cause is a “final order since it disposes of the case, terminates the statement given by the complainant and other witnesses in any investigation of the
proceedings, and leaves the court with further nothing to do with respect to the offense conducted by the prosecution or other investigating officers, as well as any
case (Cajipe vs. People, April 23, 2014). designated documents, papers, books, accounts, letters, photographs, objects, or
tangible things not otherwise privileged, which constitute or contain evidence
19. Arrest without warrant. 1) When, in his presence, the person to be arrested has material to any matter involved in the case and which are in the possession or under
committed, is actually committing, or is attempting to commit an offense; 2) When the control of the prosecution, police, or other law investigating agencies.
an offense has just been committed and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has 4. What are the grounds to suspend the arraignment? (a) The accused appears to
committed it; and 3) When the person to be arrested is a prisoner who has escaped be suffering from an unsound mental condition which effectively renders him
from a penal establishment or place where he is serving final judgment or is unable to fully understand the charge against him and to plead intelligently thereto.
temporarily confined while his case is pending, or has escaped while being In such case, the court shall order his mental examination and, if necessary, his
transferred from one confinement to another (Section 5, Rule 113). confinement for such purpose; (b) There exists a prejudicial question; and (c) A
petition for review of the resolution of the prosecutor is pending at either the
20. When is preliminary investigation required? Except as provided in section 7 of Department of Justice, or the Office of the President; provided, that the period of
this Rule, a preliminary investigation is required to be conducted before the filing suspension shall not exceed sixty (60) days counted from the filing of the petition
of a complaint or information for an offense where the penalty prescribed by law with the reviewing office. (Section 11, Rule 116).
is at least four (4) years, two (2) months and one (1) day without regard to the fine
(Sec. 1, Rule 112). XXII. MOTION TO QUASH

21. Objection by the accused to an arrest without a warrant must be made before he 1. Motion to quash is subject to the omnibus motion rule. The failure of the
enters his plea, otherwise, the objection is deemed waived (People vs. Vallejo, accused to assert any ground of a motion to quash before he pleads to the complaint
Nov. 19, 2003). or information, either because he did not file a motion to quash or failed to allege
the same in said motion, shall be deemed a waiver of any objections.
22. The waiver to question the illegality of arrest does not carry with it the waiver of
the inadmissibility of the evidence obtained during illegal arrest (People vs. Aruta, 2. What are the exceptions? Facts do not constitute an offense? 1) Lack of
April 13, 1998). jurisdiction over the subject matter; 2) Extinction of criminal liability; 3) Double
jeopardy.
23. Posting of bail does not constitute waiver of irregularity of arrest (Sec. 26., Rule
114). 3. Will the quashal of information bar to another prosecution? An order
sustaining the motion to quash is not a bar to another prosecution for the same
24. Honasan II vs. DOJ Panel, April 13, 2004. The power of the Ombudsman to offense. This means that another complaint or information may be filed.
investigate offenses involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the government such as the 4. What are the exemptions? Extinction of criminal liability and double jeopardy.
provincial, city and state prosecutors has long been settled in several decisions of
the Court. In other words, respondent DOJ Panel is not precluded from conducting XXIV. PROVISIONAL DISMISSAL
any investigation of cases against public officers involving violations of penal laws
but if the cases fall under the exclusive jurisdiction of the Sandiganbayan, then 1. SECTION 8. Provisional Dismissal. — A case shall not be provisionally
respondent Ombudsman may, in the exercise of its primary jurisdiction take over dismissed except with the express consent of the accused and with notice to the
at any stage. offended party. The provisional dismissal of offenses punishable by imprisonment
not exceeding six (6) years or a fine of any amount, or both, shall become
XX. BAIL permanent one (1) year after issuance of the order without the case having been
revived. With respect to offenses punishable by imprisonment of more than six (6)
1. When is bail a matter of right? All persons in custody shall be admitted to bail as years, their provisional dismissal shall become permanent two (2) years after
a matter of right, with sufficient sureties, or released on recognizance as prescribed issuance of the order without the case having been revived.
by law or this Rule (a) before or after conviction by the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial 3. Under the Section 14 of A.M. No. 12-11-2-SC (Guidelines for Decongesting
Court, and (b) before conviction by the Regional Trial Court of an offense not Holding Jails by Enforcing the Rights of Accused Persons to Bail and
punishable by death, reclusion perpetua, or life imprisonment. Speedy Trial), the one or two-year period for reviving as criminal case that has
been provisionally dismissed shall be reckoned from the issuance of the order of
2. When bail hearing is discretionary. A hearing of the application for bail is to be dismissal.
conducted when a person is in custody for the commission of an offense punishable
by death, reclusion perpetua, or life imprisonment. In the hearing, the prosecution has
4. How to discharge a co-accused to become a state witness: The prosecution justifiable cause, he shall be allowed to avail of said remedies within fifteen (15)
shall file a motion; The motion shall be filed before the prosecution rests its case days from notice (Section 6. Rule 120).
(Section 17, Rule 119).
XXVI. SEARCHES AND SEIZURE
5. What should be the action of the Court? The court shall require the prosecution
to present evidence and the sworn statement of each proposed witness. The Court 1. Is search warrant a criminal action? It is not. A search warrant is not a criminal
shall conduct a hearing in support of the discharge (Section 17, Rule 119). action nor does it represent a commencement of a criminal action. It is not a
proceeding against a person but is solely for the discovery and to get possession of
6. Requisites before the accused may be discharge as a state witness: 1) Two or
personal property. Since it is not a criminal action, it can be prosecuted without the
more accused are jointly charged with the commission of an offense. 2) The motion
to discharge is filed by the prosecution before it rests its case. 3) The prosecution direct control and participation of the public prosecutor.
is required to present evidence and the sworn statement of each proposed witness
at the hearing of the discharge. 2. Where should application for search warrant be filed? Any court within whose
territorial jurisdiction a crime was committed. For compelling reasons stated in the
7. Requisites before the accused may be discharge as a state witness: The trial application, any court within the judicial region where the crime was committed if
court is satisfied that: the place of the commission of the crime is known, or any court within the judicial
region where the warrant shall be enforced. However, if the criminal action has
(a) There is absolute necessity for the testimony of the accused whose discharge is already been filed, the application shall only be made in the court where the criminal
requested; action is pending. (Section 2, Rule 126).
(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused; 3. BUT TAKE NOTE: In cases involving heinous crimes, illegal gambling,
(c) The testimony of said accused can be substantially corroborated in its material dangerous drugs and illegal possession of fire-arms. EJ and Vice-EJS of RTCs
points; Manila and Quezon City in application filed by PNP, NBI, PAOC-TF, REACT-TF
(d) Said accused does not appear to be the most guilty; and (A.M. No. 99-20-09-SC, January 25, 2000).
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude. 4. Requisites for the issuance of search warrant? A search warrant shall not issue
except upon probable cause in connection with one specific offense to be
8. What is the effect of the discharge of the co-accused? RULE 119, SECTION determined personally by the judge after examination under oath or affirmation of
18. Discharge of Accused Operates as Acquittal. — The order indicated in the the complainant and the witnesses he may produce, and particularly describing the
preceding section shall amount to an acquittal of the discharged accused and shall place to be searched and the things to be seized which may be anywhere in the
be a bar to future prosecution for the same offense, unless the accused fails or Philippines (Section 4, Rule 126).
refuses to testify against his co-accused in accordance with his sworn statement
constituting the basis for his discharge.
5. Dissection of Section 4. 1) It must be based upon probable cause. 2) Probable
cause must be determined by the judge himself and not by the applicant or any
9. May the Court motu-propio dismiss the case for lack or insufficiency of
evidence? YES. After the prosecution rests its case, the court may dismiss the other person. 3) In the determination of probable cause, the judge must examine,
action on the ground of insufficiency of evidence (1) on its own initiative after under oath, the complainant and such witnesses he may produce. 4) The warrant
giving the prosecution the opportunity to be heard (Section 23, Rule 119). issued must particularly describe the place to be searched and the person or things
to be seized.
10. Effect of Demurrer. The granting of demurrer to evidence is tantamount to
acquittal. Although the grant of a demurrer to evidence amounts to an acquittal and 6. How shall examination by the Judge should be conducted? The judge must,
that the order of dismissal is not subject to appeal, it may be reviewed thru certiorari before issuing the warrant, personally examine in the form of searching questions
(People vs. Sandiganbayan, August 5, 2015). The order denying the motion for and answers, in writing and under oath, the complainant and the witnesses he may
leave of court to file demurrer to evidence or the demurrer itself shall not be produce on facts personally known to them and attach to the record their sworn
reviewable by appeal or by certiorari before judgment (Section 23, Rule 119). statements, together with the affidavits submitted. (Section 5, Rule 126).

XXV. JUDGMENT 7. Where to file the motion to quash or to suppress evidence? A motion to quash
a search warrant and/or to suppress evidence obtained thereby may be filed in and
1. SECTION 1. Judgment; Definition and Form. — Judgment is the adjudication acted upon only by the court where the action has been instituted. If no criminal
by the court that the accused is guilty or not guilty of the offense charged and the action has been instituted, the motion may be filed in and resolved by the court that
imposition on him of the proper penalty and civil liability, if any. It must be written issued the search warrant. However, if such court failed to resolve the motion and
in the official language, personally and directly prepared by the judge and signed by a criminal case is subsequently filed in another court, the motion shall be resolved
him and shall contain clearly and distinctly a statement of the facts and the law upon by the latter court. (Section 14, Rule 126).
which it is based.
8. Parameters of search incident to a lawful arrest. Valeroso vs. CA, 598 SCRA
2. Can civil liability be awarded despite acquittal? Yes. In case the judgment is of 41 – the cabinet is situated in the area different from where the accused was arrested
acquittal, it shall state whether the evidence of the prosecution absolutely failed to or temporarily detained. The cabinet is not an area within the immediate reach and
prove the guilt of the accused or merely failed to prove his guilt beyond reasonable control of the accused. Espano vs. CA, 288 SCRA 558 – Accused was arrested
doubt. In either case, the judgment shall determine if the act or omission from outside his house. The subsequent search of his house after his arrest is invalid.
which the civil liability might arise did not exist (Section 2, Rule 120).

3. Variance between the allegation and proof. When there is variance between the XXVII. EVIDENCE
offense charged in the complaint or information and that proved, and the offense
as charged is included in or necessarily includes the offense proved, the accused 1. Rule 128, Sec. 1. Evidence is the means, sanctioned by these rules, of
shall be convicted of the offense proved which is included in the offense charged, ascertaining in a judicial proceeding the truth respecting a matter of fact.
or of the offense charged which is included in the offense proved (Section 4, Rule
120). 2. Scope and Applicability. The rules of evidence shall be the same in all courts and
in all trials and hearings, except as otherwise provided by law or these rules. (Sec.
4. When is an offense included or includes in another? An offense charged 2, Rule 128). The rule does not apply to election cases, land registration and
necessarily includes the offense proved when some of the essential elements or cadastral cases, naturalization and insolvency proceedings, except by analogy
ingredients of the former, as alleged in the complaint or information, constitute the or in a suppletory character and whenever practicable and convenient (Sec. 4, Rule
latter. And an offense charged is necessarily included in the offense proved, when 1).
the essential ingredients of the former constitute or form part of those constituting
the latter (Section 5, Rule 120). 3. Is the rule on electronic evidence applicable to criminal cases? Yes. The SC in
People vs. Enojas, March 10, 2014 ruled: As to the admissibility of the text
5. How is a judgment promulgated? RULE 120, SECTION 6. Promulgation of messages, the RTC admitted them in conformity with the Court's earlier Resolution
Judgment. — The judgment is promulgated by reading it in the presence of the applying the Rules on Electronic Evidence to criminal actions (A.M. No. 01-7-01-
accused and any judge of the court in which it was rendered. However, if the SC, Re: Expansion of the Coverage of the Rules on Electronic Evidence,
conviction is for a light offense, the judgment may be pronounced in the presence September 24, 2002, which now covers criminal cases).
of his counsel or representative. When the judge is absent or outside the province
or city, the judgment may be promulgated by the clerk of court. 4. Ong Chia vs. Republic, 328 SCRA 749 - The RTC granted the petitioner’s
petition for naturalization. The CA reversed the decision on the ground that the
6. How is judgment promulgated in case the accused fails to appear? In case RTC admitted evidence which were not formally offered in evidence in violation
the accused fails to appear at the scheduled date of promulgation of judgment of Sec. 34, Rule 132 of the Rules of Court. According to SC, the rule on formal
despite notice, the promulgation shall be made by recording the judgment in the offer of evidence is not applicable to petition for naturalization unless applied by
criminal docket and serving him a copy thereof at his last known address or thru analogy or in a suppletory character and whenever practicable and convenient.
his counsel (Section 6. Rule 120).
5. Factum probandum vs. factum probans. Factum probandum is the fact or
7. If the judgment is for conviction and the failure of the accused to appear was proposition to be established, while factum probans is the fact or material evidencing
without justifiable cause, he shall lose the remedies available in these rules against the fact or proposition to be established. The factum probandum is the fact to be
the judgment and the court shall order his arrest. Within fifteen (15) days from proved; it is the fact which is in issue in a case and to which the evidence is directed.
promulgation of judgment, however, the accused may surrender and file a motion On the other hand, factum probans is the probative or evidentiary fact tending to
for leave of court to avail of these remedies. He shall state the reasons for his prove the fact in issue.
absence at the scheduled promulgation and if he proves that his absence was for a
6. Is admissibility of evidence the same as weight of evidence? No. the 22. Best Evidence Rule. When the subject of inquiry is the contents of a
admissibility of evidence should not be equated with the weight of the evidence. document, no evidence shall be admissible other than the original document itself
The admissibility of evidence depends on its relevance and competence while the (Section 3, Rule 130).
weight of evidence pertains to its tendency to convince and persuade. A particular
item of evidence may be admissible but its evidentiary weight depends on judicial 23. Exceptions to best evidence rule. 1) When the original has been lost or
evaluation with the guidelines provided by the rules on evidence (Tating vs. destroyed, or cannot be produced in court, without bad faith on the part of the
Marcella, 519 SCRA 79). offeror. 2) When the original is in the custody or under the control of the party
against whom the evidence is offered, and the latter fails to produce it after
7. What is burden of evidence? It is the duty of a party to go forward with evidence reasonable notice. 3) When the original consists of numerous accounts or other
to overthrow the prima facie evidence against him (People vs. CA, February 25, documents which cannot be examined in court without great loss of time and the
2015). If the accused admits the killing, the burden of evidence is shifted to the fact sought to be established from them is only the general result of the whole; and
accused to prove his defenses (Flores vs. People, February 27, 2013). 4) When the original is a public record in the custody of a public officer or is
recorded in a public office (Section 3, Rule 130).
8. Will the acquittal an administrative result in the dismissal of the criminal
case? No. It will not follow. Administrative and criminal proceedings are two 24. Parol evidence. When the terms of an agreement have been reduced to writing,
different proceedings. They involve different procedure. Thus, the prosecution is it is considered as containing all the terms agreed upon and there can be, between
not precluded from adducing evidence to discharge the burden of proof required the parties and their successors in interest, no evidence of such terms other
in criminal cases. (Paredes vs. CA, 528 SCRA 577). than the contents of the written agreement. (Sec. 9, Rule 130).

9. Judicial Notice, Discretionary. A court may take judicial notice of matters which 25. Instances where a party may modify, explain or add to the terms of written
are of 1) public knowledge, or 2) are capable of unquestionable agreement. (a) An intrinsic ambiguity, mistake or imperfection in the written
demonstration, or 3) ought to be known to judges because of their judicial agreement; (b) The failure of the written agreement to express the true intent and
functions. (Sec. 2, Rule 129). agreement of the parties thereto; (c) The validity of the written agreement; or
10. There are two (2) civil cases pending between the same parties. One is being (d) The existence of other terms agreed to by the parties or their
heard by Branch 92. The other one is being heard by Branch 93. Can Branch 92 successors in interest after the execution of the written agreement.
take judicial notice of the case pending in Branch 93? ANSWER: A court
will take judicial notice of its own acts and records in the same case (Republic vs. 26. Disqualification by reason of death or insanity of adverse party. Parties or
CA, 277 SCRA 633). assignors of parties to a case, or persons in whose behalf a case is prosecuted,
against an executor or administrator or other representative of a deceased person,
11. Suppose the two cases are pending in the same branch, which is Branch 92, or against a person of unsound mind, upon a claim or demand against the estate of
can the Judge take judicial notice of the other case between the same parties? such deceased person or against such person of unsound mind, cannot testify as
ANSWER: Courts are not authorized to take judicial notice of the contents of the to any matter of fact occurring before the death of such deceased person or
records of other cases, even such cases have been tried or pending in the same court before such person became of unsound mind (Section 23, Rule 130).
(LBP vs. Yatco Agricultural Enerprises, Jan. 15, 2014).
27. NOTE: This rule “applies only to a civil case or special proceeding over the estate
12. How can the judge take judicial notice of the case pending in the same of the deceased or insane person.”
Court? When in the absence of any objection and with the knowledge of the
opposing party, the contents of said other case are clearly referred to by title and 28. ELEMENTS OF DEAD MAN STATUTE: 1) The suit is upon a claim by the
number in a pending action and adopted and read into the records of the other plaintiff against the estate of a deceased or person of unsound mind. 2) The
case; When they are requested to form part of the record of the other case defendant in the case is the executor or administrator or representative of the
(Tabuena vs. CA, 196 SCRA 650). deceased or person of unsound mind. 3) The witness is the plaintiff, or an assignor
of the plaintiff, or person in whose behalf, the case is prosecuted.4) The subject of
13. Judicial admission. Sec. 4, Rules 129. An admission, verbal or written, made by a testimony is as to any matter of fact occurring before the death of such deceased
party in the course of the proceedings in the same case, does not require proof. person or before such person became of unsound mind.
The admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made. 29. Who are prohibited to testify? The plaintiff who has a claim against the estate of
the deceased: parties, assignor of parties, person in whose behalf the case is
14. Admission during pre-trial in criminal case does not result to judicial admission. It prosecuted. Thus, if the administrator is the plaintiff, the rule does not apply.
must comply with Section 2, Rule 118. Section 2, Rule 118, Pre-trial agreement. —
All agreements or admissions made or entered during the pre-trial conference shall 30. Disqualification by Marriage. During their marriage, neither the husband nor
be reduced in writing and signed by the accused and counsel, otherwise, they the wife may testify for or against the other without the consent of the affected
cannot be used against the accused. The agreements covering the matters referred spouse, except in a civil case by one against the other, or in a criminal case for a
to in Section 1 of this Rule shall be approved by the court. crime committed by one against the other or the latter's direct descendants or
ascendants (Section 22, Rule 130).
15. How about the stipulations of facts during trial? It is not required that it be
signed the lawyer and the accused. The stipulation of acts is already contained in 31. Before the marriage of H and W, W witnessed H killing Y. W did not report the
the TSN. The lawyer is presumed to have prima facie authority to make relevant incident to the police. Later, H and W got married. They had falling out.
admission by pleadings, by oral or written stipulation which unless withdrawn are Consequently, W reported the incident she witnessed when they were still
conclusive. (People vs. Hernadez, 206 SCRA 25; Silot vs. Dela Rosa, 543 SCRA sweethearts. May the prosecution present W as a witness in a murder case
533). filed against H? ANSWER: Over the objection of H, the prosecution may not
call W to testify against H. To call W to testify against H while their marriage is still
16. How about admission in an amended pleading? Section 8, Rule 10, provides would violate the marital disqualification rule.
that when a pleading is amended, the amended pleading supersedes the pleading
that it amends and the admission in the superseded pleading may be received in 32. Supposed W was called to testify after their marriage had been annulled,
evidence against the pleader. But the admission will be treated as extra-judicial would your answer be the same? My answer would not be the same. Since the
admission (Torres vs. CA, 131 SCRA 24; Ching vs. CA, 331 SCRA 16). marriage is not anymore existing, the marital disqualification rule would not apply.

17. How about admission in a dismissed pleading? It is merely extra-judicial 33. May a spouse testify in a trial where the other spouse is a co-accused? Yes,
judicial admission (Servicewide Specialist Inc., vs. CA, 257 SCRA 643). except as against her husband (People vs. Quitado, 297 SCRA 1).

18. How about admission of a proposed state witness? If the motion to discharge 34. May a spouse testify in a trial against her estranged husband? Yes. (Alvarez
an accused as a state witness is denied, his sworn statement, submitted to support vs. Ramirez, 473 SCRA 72.).
the motion, shall be inadmissible in evidence (Sec. 17, Rule 119).
35. Marital privilege communication. The husband or the wife, during or after the
19. What is the effect of judicial admission? Judicial admission are legally binding marriage, cannot be examined without the consent of the other as to any
on the party making the admission. It is an established principle that judicial communication received in confidence by one from the other during the marriage
admission cannot be contradicted by the admitter who is the party himself and except in a civil case by one against the other, or in a criminal case for a crime
binds the person who makes the same, absent any showing that this was made committed by one against the other or the latter's direct descendants or ascendants.
through palpable mistake, no amount of rationalization can offset it (PCIC vs. (Sec. 24(a), Rule 130).
Central Colleges of the Phil. 666 SCRA 540).
36. ELEMENTS OF MARITAL PRIVILEGE COMMUNICATION. 1) There
20. Links in the Chain of Custody. First, the seizure and marking of the confiscated must be a valid marriage between the husband and wife. 2) There is a
drugs recovered from the accused; Second, the turnover of the illegal drug seized communication received in confidence by one from the other. 3) The confidential
by the apprehending officer to the investigating officer; Third, the turnover by the information was received during marriage.
investigating officer of the illegal drug to the forensic chemist for laboratory
examination; Fourth, the turnover and submission of the marked illegal drug by the 37. When is information considered confidential? The general rule is that
forensic chemist to the court (People vs. Kamad, 610 SCRA 295). communications between spouses is presumed confidential unless shown
otherwise. Communications made in the presence of third person are not
21. Documentary evidence. Section 2, Rule 130. Documents as evidence consist of confidential unless the third person may be considered as agent of the spouses.
writings or any material containing letters, words, numbers, figures, symbols or
other modes of written expressions offered as proof of their contents. 38. Attorney client privilege. An attorney cannot, without the consent of his client,
be examined as to any communication made by the client to him, or his advice
given thereon in the course of, or with a view to, professional employment, nor can
an attorney's secretary, stenographer, or clerk be examined, without the consent of 57. EXCEPTION TO HEARSAY. RULE 130, SECTION 37. Dying
the client and his employer, concerning any fact the knowledge of which has been declaration. — The declaration of a dying person, made under the consciousness
acquired in such capacity (Sec. 24(b), Rule 130). of an impending death, may be received in any case wherein his death is the subject
of inquiry, as evidence of the cause and surrounding circumstances of such death.
39. Is it necessary that there should be lawyer-client relationship before the rule
may be applied? NO. The “rules” provides that “communications or advice given 58. EXCEPTION TO HEARSAY. RULE 130, SECTION 42. Part of the res
with the view to professional employment. gestae. — Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the circumstances
40. Does the disqualification apply only to lawyer? NO. The rule also applies to an thereof, may be given in evidence as part of the res gestae. So, also, statements
attorney's secretary, stenographer, or clerk who received the information in their accompanying an equivocal act material to the issue, and giving it a legal
capacity as such. significance, may be received as part of the res gestae.

41. Doctor patient privilege. A person authorized to practice medicine, surgery or 59. EXCEPTION TO HEARSAY. RULE 130, SECTION 43. Entries in the
obstetrics cannot in a civil case, without the consent of the patient, be examined as course of business. — Entries made at, or near the time of the transactions to
to any advice or treatment given by him or any information which he may have which they refer, by a person deceased, or unable to testify, who was in a position
acquired in attending such patient in a professional capacity, which information was to know the facts therein stated, may be received as prima facie evidence, if such
necessary to enable him to act in that capacity, and which would blacken the person made the entries in his professional capacity or in the performance of duty
reputation of the patient (Sec. 24(c), Rule 130). and in the ordinary or regular course of business or duty.

42. Confessional box privilege. A minister or priest cannot, without the consent of 60. EXCEPTION TO HEARSAY. RULE 130, SECTION 38. Declaration
the person making the confession, be examined as to any confession made to or against interest. — The declaration made by a person deceased, or unable to
any advice given by him in his professional character in the course of discipline testify, against the interest of the declarant, if the fact asserted in the declaration
enjoined by the church to which the minister or priest belongs (Sec. 24(d), Rule was at the time it was made so far contrary to declarant's own interest, that a
130). reasonable man in his position would not have made the declaration unless he
believed it to be true, may be received in evidence against himself or his successors
43. Offer of Compromise. In civil cases, an offer of compromise is not an admission in interest and against third persons.
of any liability, and is not admissible in evidence against the offeror. (Sec. 27, Rule
130) 61. EXCEPTION TO HEARSAY. RULE 130, SECTION 39. Act or declaration
about pedigree. — The act or declaration of a person deceased, or unable to
44. In criminal cases, except those involving quasi-offenses (criminal negligence) or testify, in respect to the pedigree of another person related to him by birth or
those allowed by law to be compromised, an offer of compromise by the accused marriage, may be received in evidence where it occurred before the controversy,
may be received in evidence as an implied admission of guilt. and the relationship between the two persons is shown by evidence other than such
act or declaration. The word "pedigree" includes relationship, family genealogy,
45. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser birth, marriage, death, the dates when and the places where these facts occurred,
offense, is not admissible in evidence against the accused who made the plea or and the names of the relatives. It embraces also facts of family history intimately
offer. connected with pedigree.
46. An offer to pay or the payment of medical, hospital or other expenses occasioned
by an injury is not admissible in evidence as proof of civil or criminal liability for 62. EXCEPTION TO HEARSAY. RULE 130, SECTION 40. Family reputation
the injury. or tradition regarding pedigree. — The reputation or tradition existing in a
family previous to the controversy, in respect to the pedigree of any one of its
47. Two branches of res inter alios acta. First Branch - The rights of a party cannot members, may be received in evidence if the witness testifying thereon be also a
be prejudiced by an act, declaration or omission of another (Sec. 28, Rule 130). member of the family, either by consanguinity or affinity. Entries in family bibles
Second Branch - The evidence of previous conduct or similar acts at one time is or other family books or charts, engravings on rings, family portraits and the like,
not admissible to prove that one did or did not do the same at another time (Sec. may be received as evidence of pedigree.
34, Rule 130).
63. EXCEPTION TO HEARSAY. RULE 130, SECTION 41. Common
48. EXAMPLE OF FIRST BRANCH - If Roberto makes a statement before the reputation. — Common reputation existing previous to the controversy,
media admitting his participation in the murder of Carla, his statement is admissible respecting facts of public or general interest more than thirty years old, or respecting
against him under Section 26, Rule 130. If he made a statement implicating Lito marriage or moral character, may be given in evidence. Monuments and inscriptions
and Carlos is not admissible against Lito and Carlos applying the principle of res in public places may be received as evidence of common reputation.
inter alios acta.
64. EXCEPTION TO HEARSAY. RULE 130, SECTION 44. Entries in official
49. Is this applicable to judicial admission? No. because res inter alios acta is records. — Entries in official records made in the performance of his duty by a
applicable only to extra-judicial admission but it does not cover judicial admission public officer of the Philippines, or by a person in the performance of a duty
because of the other accused has the opportunity to cross-examine. (Yapyuco vs. specially enjoined by law, are prima facie evidence of the facts therein stated.
Sandiganbayan, 674 SCRA 420).
-------------------------------- END --------------------------------
50. EXCEPTION: SECTION 29. Admission by co-partner or agent. — The act
or declaration of a partner or agent of the party within the scope of his authority
and during the existence of the partnership or agency, may be given in evidence
against such party after the partnership or agency is shown by evidence other than
such act or declaration. The same rule applies to the act or declaration of a joint
owner, joint debtor, or other person jointly interested with the party.

51. EXCEPTION: SECTION 30. Admission by conspirator. — The act or


declaration of a conspirator relating to the conspiracy and during its existence, may
be given in evidence against the co-conspirator after the conspiracy is shown by
evidence other than such act or declaration.

52. EXCEPTION: SECTION 31. Admission by privies. — Where one derives title
to property from another, the act, declaration, or omission of the latter, while
holding the title, in relation to the property, is evidence against the former.

53. SIMILAR CONDUCT RULE: Similar acts as evidence. — Evidence that one DO NOT COPY, CITE, OR DISTRIBUTE
did or did not do a certain thing at one time is not admissible to prove that he did WITHOUT PERMISSION OF THE AUTHOR.
or did not do the same or a similar thing at another time; but it may be received to
prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom
or usage, and the like. (Section 34, Rule 130).

54. HEARSAY RULE: SECTION 36. Testimony generally confined to personal


knowledge; hearsay excluded. — A witness can testify only to those facts which
he knows of his personal knowledge; that is, which are derived from his own
perception, except as otherwise provided in these rules.

55. ELEMENTS OF HEARSAY. 1) There must be an out of court statement which


was not made by the declarant in the hearing or trial; 2) The statement is offered by
the witness in court to prove the truth of the matters asserted by the statement

56. What is Independent Relevant Statement? The relevance of independent


relevant statement is not dependent on the truth or falsity thereof, but on the fact
that they were said.