LAST MINUTE NOTES IN REMEDIAL LAW
By: Judge Gener M. Gito, LL.M. D.C.L.
I. JURISDICTION
1. It is the power and authority of the court to hear, try, and decide the case (Continental
Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015; Barangay Mayamot
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
the execution of its decision (Echegaray vs. Secretary of Justice, 301 SCRA 96, 108).
2. A commercial case was filed in an RTC which is not designated as a Commercial
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
designated by the SC as a Commercial Court (Gonzales vs. GJH Land, 2015).
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
sought (Geronimo vs. Calderon, GR No. 201781, December 10, 2014; Cabling vs.
Dangcalan, GR No. 187696, June 15, 2016). This is regardless of whether or not
the plaintiff is entitled to recover all or some of the claims or reliefs sought
therein (Continental Micronesia, Inc., vs. Basco, GR Nos. 178382-83, September 23, 2015;
Barangay Mayamot vs. Antipolo City, GR No. 187349, August 17, 2016). Thus, Caption
of the case is not controlling (Sps. Erotica vs. Sps. Dumlao, GR no. 195477, January
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).
The amount awarded does determine jurisdiction (Dionisio vs. Sison Puerto, 60
SCRA 471, 477).
4. What if the defendant in an ejectment case raise the issue of tenancy in his
answer, should the court dismiss the case for lack of jurisdiction? While the
MTC does not lose its jurisdiction over an ejectment case by defendant’s
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
of jurisdiction (De la Cruz, vs. CA, 510 SCRA 103, 116).
5. What is jurisdiction over the parties? Jurisdiction over the parties refers to the
power of the court to make decisions that are binding on persons (De Pedro vs.
Romasan, supra). It is the legal power of the court to render a personal judgment
against the party to an action or proceeding (Black’s Law Dictionary, 5th Ed., 767,
cting Imperial vs. Hardy, La 302 So.2d 5, 7, cited in Riano, Civil Procedure, 2016).
6. How is jurisdiction over the parties acquired? Plaintiff upon the filing of the
compliant. Defendant – upon valid service of summons and voluntary appearance.
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
court takes the form of appearance that seeks affirmative relief except when the
relief sought is for the purpose of objecting to the jurisdiction of the court
over the person of the defendant. Thus, if he participates in the trial despite
defective service of summons tantamounts to voluntary appearance (De Pedro vs.
Romasan Development, supra).
7. What is the concurrent jurisdiction? When two or more court can exercise
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
PRINCIPLE OF HIERARCHY OF COURTS WILL APPLY.
8. Primary Jurisdiction
II. FILING FEE
1. It has been long settled that while a court acquires jurisdiction over the case only
upon payment of the docket fees, its non-payment at the time of the filing of the
complaint does not automatically cause the dismissal of the case, provided the fees
are paid within a reasonable time. Even inadequate payment of filing will not divest
the court of its jurisdiction. This rule is applicable even if the claim for damages of
the plaintiffs is metered or progressing as case the case is pending (Unicapital vs.
Consing, 2013).
III. INDIGENT LITIGANT
1. Who is an indigent litigant? An indigent is someone whose income, and that of
his immediate family, does not exceed double the monthly minimum wage AND
does not own real property with the fair market value exceeding P300,000. If he is
an indigent litigant, he is not required to pay filing fee.
IV. ACTION
1. What is a cause of action? Act or omission by which a party violates the right
of another (Section 2, Rule 2).
2. What is the test to determine whether a complaint state a cause of action of
not? If the court can render a valid judgment based on the allegation in the
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
considered because they are part of the complaint (Sea Land Service, Inc., vs. CA,
327 SCRA 135).
3. What is splitting of cause of action? An act of a party of instituting more than
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
splitting of cause of action.
4. What is joinder of causes of action? It is the assertion in one pleading, in alternative
or otherwise, as many causes of action as he may have against an opposing party
(Sec. 5, Rule 2).
5. What are the conditions that the joinder of parties is subject to: 1) The joinder shall
not include special civil actions or actions governed by special rules; 2) Where the
causes of actions are between the same parties but pertain to different venues or
jurisdictions, the joinder may be allowed in the RTC provided one of the cause of
actions falls within the jurisdiction of said court and venue lies therein; 3) Where
the claims in all causes of action are principally for recovery of money, the aggregate
amount claimed shall be the test of jurisdiction (Section 5, Rule 2).
6. When is joinder of parties allowed? All persons in whom or against whom any
right to relief in respect to or arising out of the same transaction or series of
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
defendants in one complaint, where any questions of law or fact common to all
such plaintiffs or to all such defendants may arise in the action (Section 6, Rule
3).
V. PARTIES
1. Who is real party in interest? A real party in interest is the party who stand to be
benefited and injured by the judgment of the suit, or the party entitled to the avails
of the suit. Unless otherwise authorized by law or the rules of court, every action
must be prosecuted or defended in the name of the real party in interest. (Sec. 2,
Rule 3). The determination of who the real party in interest is requires the
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
is the real party in interest as plaintiff and the one violating the right is the real party
in interest as defendant.
2. What is the effect if the party is not a real a real party-in-interest? The
complaint may be dismissed for lack of cause of action if the defendant is not the
real-party-interest (Sec.1(g), Rule 16). If the plaintiff is not the real party-in-
interest, complaint may be dismissed under (Section 1(d), Rule 16).
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
shall be joined as plaintiffs or defendants (Sec. 7, Rule 3).
4. What is the effect of failure to implead an indispensable party? Failure to join an
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
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
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
obtaining the required jurisdiction over indispensable parties is null and void for want
of jurisdiction (Florete, Jr. vs. Florete, Sr. GR 174909, January 20, 2016), not only as
to the absent parties but even as to those present (People vs. Go, GR 201644,
September 24, 2014).
5. Who is a necessary party? It is one who is not indispensable but who ought to
be joined as a party if complete relief is to be accorded as to those already parties,
or for a complete determination or settlement of the claim subject of the action
(Sec. 8, Rule 3).
6. What is the duty of a pleader is a necessary party is not joined? Whenever in
any pleading in which a claim is asserted a necessary party is not joined, the pleader
shall set forth the name of the necessary party, if his name is known, and shall state
why such party is omitted (Sec. 9, Rule 3).
7. May the Court order joinder of necessary party? If the reason given for the non-
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
(Sec. 9, Rule 3).
8. What is the effect of failure to comply with the order of the Court? It shall be
deemed a waiver of claim against such party. (Sec. 9, Rule 3)
9. What is the effect if the non-inclusion of the necessary party is justified? The
non-inclusion of a necessary party does not prevent the court from proceeding in
the action, and the judgment rendered therein shall be without prejudice to the
rights of such necessary party. (Sec. 9, Rule 3)
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
in California, they’re non-residents, while defendants reside in Bacolod. The action
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
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
a real party in interest.
11. Is misjoinder of parties or non-joinder of parties a ground for dismissal of an
action? Neither misjoinder nor non-joinder of parties is a ground for dismissal of
an action. Parties may be dropped or added by order of the court, on motion of
any party or upon its own initiative at any stage of the action and on such terms as
are just. Any claim against a misjoined party may be severed or proceeded with
separately. (Sec. 11, Rule 3)
12. What is a class suit? When the subject matter of controversy is one of common
or general interest to many persons so numerous that it is impracticable to join
them all as parties, a number of them which the court finds to be sufficiently
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).
13. Requisites of class suits. 1) The subject matter of the controversy is one of
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
obtain relief for or against numerous persons.
14. What is common or general interest? A class suit does not require a commonality
of interest in the questions involved in the suit. What is required by the Rules is a
common or general interest in the subject matter of the litigation. The “subject
matter” of the litigation meant the physical, the things real or personal, the money,
lands, chattels, and the like, in relation to the suit which is prosecuted and not the
delict or wrong committed by the defendant (Mathay vs. Consolidated Bank &
Trust Co., 58, SCRA 559, 571).
15. What is the duty of the lawyer if case of a party dies? If the party dies and the
claim is not extinguished, his duty is to inform the court of such fact within 30 days
after such death and to give the name and address of the legal representatives of
the deceased party. (Sec. 16, Rule 3).
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
the appointment of executor or administrator (Sec. 16, Rule 3).
17. What is the rule in an action for sum of money if one of the defendant dies?
When the action is for recovery of money, arising from contract, express or implied
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
be allowed to continue until final judgment. Favorable judgement shall be claimed
in the estate proceedings of the deceased defendant (Sec. 20, Rule 3).
VI. VENUE
1. Venue is the place or the geographical area in which a court with jurisdiction may
hear and determine a case or the place where a case is to be tried (Black’s Law
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
or subject to agreement of the parties.
2. What is the basic consideration in determining venue of the action? The
venue of the action would be determined is the determination of whether an action
is real or personal. SECTION 1. Venue of Real Actions. — Actions affecting
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
property involved, or a portion thereof, is situated (Rule 4). SECTION 2. Venue
of Personal Actions. — All other actions may be commenced and tried where the
plaintiff or any of the principal plaintiffs resides, or where the defendant or any
of the principal defendants resides, or in the case of a non-resident defendant
where he may be found, at the election of the plaintiff. (Rule 4).
3. What is the meaning of “residence” in personal action? It means the place of abode,
whether permanent of temporary, of the plaintiff or the defendant, as distinguished
from “domicile” which denotes a fixed permanent residence to which, when absent,
one has the intention of returning (Dangwa Transporation Company vs.
Sarmiento, GR No. L-22795, January 31, 1977). Residence of a domestic
corporation is the place within the Philippines, where its principal office is located
(Section 14[3], Corporation Code; Cohen vs. Benguet Commercial Co., 34
Phil. 526).
4. Stipulations as to venue. The parties may agree on a specific venue which could
be in a place where neither of them resides (Universal Robina Corporation vs.
Lim, 535 SCRA 95, 99). In real actions, like unlawful detainer, the parties may
stipulate on a venue other than the place where the real property is situated (Union
Bank of Philippines vs. Maunlad Homes, Inc., 678 SCRA 539, 550).
5. Requisites of stipulations on exclusive venue: 1) It must be in writing; 2) It
must be made before filing of an action; 3) The agreement must be exclusive.
6. NOTE: to make it exclusive there must words with restrictive meaning -
Examples of words with restrictive meanings are: “only”, “solely”, “exclusive in this
court”, “in no other courts, save..”, “particularly”, “no where else but/except” or
words of equal import (Pacific Consultants International Asia, Inc., vs.
Schonfeld, 516 SCRA 209,229).
7. PLEASE TAKE NOTE: A restrictive stipulation on venue is not binding when
the validity of the contract is assailed (Briones vs. CA, GR No. 204444, January
14, 2015).
8. The case of Paglaom involves multiple contracts (real estate mortgage 1, 2 and 3,
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
excluding all other venues. The party defaulted in its obligation so the loan was
restructured. A new one was executed and then there is now a venue stipulation.
Which venue stipulation will apply in the event of litigation? It will be the most
recent one. Because it supersedes the other contracts.
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
so an action for collection for sum of money was instituted. What venue will have
to be followed? The Supreme Court said that if the mother contract was directly
connected and intertwined with the promissory note, then the promissory note will
be bound by the venue stipulation.
VII. PLEADING
1. Compulsory counterclaim. A compulsory counterclaim is one which, being
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
claim and does not require for its adjudication the presence of third parties of whom
the court cannot acquire jurisdiction. Such counterclaim must be within the
jurisdiction of the court both as to the amount and the nature thereof, except that
in the original action before the RTC, the counterclaim may be considered
compulsory regardless of the amount (Section 7, Rule 6).
2. Elements of compulsory counterclaim. 1) It arises out of or is necessarily
connected with the transaction or occurrence which is the subject matter of the
opposing’s party’s claim. 2) It does not require for its adjudication the presence of
third parties over whom the court cannot acquire jurisdiction. 3) It is cognizable by
the regular courts of justice and such courts have jurisdiction to entertain the
counterclaim both as to the amount and nature.
3. What is the effect of failure to plead counterclaim? A counterclaim not set up shall
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
presented as counterclaim by supplemental pleading before judgment (Sec. 9, Rule
11).
4. If the amount of the counterclaim exceeds the jurisdiction of the court, what
is the effect? The counter cannot be treated as compulsory, but permissive since
the amount exceeds the jurisdiction of the Court.
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
original action is filed with the RTC, the counterclaim may be deemed compulsory
regardless of the amount (Sec. 7, Rule 6).
6. Can a party file a Motion to Dismiss with counterclaim? No. If the dismissal
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
of the compulsory counterclaim because the grant of the motion ultimately results
in the dismissal of the counter-claim (Financial Building Corp. vs. Forbes Park
Association, 338 SCRA 346, 354).
7. Cross-claim. A cross-claim is any claim by one party against a co-party arising out
of the transaction or occurrence that is the subject matter either of the original
action or of a counterclaim therein. Such cross-claim may include a claim that the
party against whom it is asserted is or may be liable to the cross-claimant for all or
part of a claim asserted in the action against the cross-claimant.
8. What is the effect if a cross-claim is not set-up? It shall be barred (Sec. 2, Rule
9). NOTE: the cross-claim that is considered barred is the cross-claim already
existing at the time the answer is filed, not the cross-claim that may mature or may
be acquired after service of the answer. As to the latter Section 9, Rule 11 declares
that it may, by leave of court, be presented by supplemental pleading before
judgment.
9. Amendment of the Pleading. A party may amend his pleading once as a matter
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
provided in the next preceding section, substantial amendments may be made only
upon leave of court. But such leave may be refused if it appears to the court that
the motion was made with intent to delay. Orders of the court upon the matters
provided in this section shall be made upon motion filed in court, and after notice
to the adverse party, and an opportunity to be heard (Section 3, Rule 10).
10. May a pleading be amended as a matter of right after a motion to dismiss is
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.
Maya-Maya Cottages, 476 SCRA 416).
11. Amendment to conform to evidence. When issues not raised by the pleadings
are tried with the express or implied consent of the parties, they shall be treated in
all respects as if they had been raised in the pleadings. Such amendment of the
pleadings as may be necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at any time, even after
judgment; but failure to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall
do so with liberality if the presentation of the merits of the action and the ends of
substantial justice will be subserved thereby. The court may grant a continuance to
enable the amendment to be made (Section 5, Rule 10).
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
against the debtor. While the case is pending, the other PNs became due and
demandable also. The Creditor included the last two PN as evidences in the case
pending. It was introduced without the objection of the Debtor? Can the Court
render judgment on the last two PNs? NO. Section 5 thereof applies to
situations wherein evidence not within the issues raised in the pleadings is presented
by the parties during the trial, and to conform to such evidence the pleadings are
subsequently amended on motion of a party. Thus, a complaint which fails to state
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
at the time the complaint is filed, but the complaint is defective for failure to allege
the essential facts (Swagman Hotels and Travel vs. CA, 455 SCRA 175).
13. May amendment be made to correct the jurisdictional defect before a
responsive pleading is served? YES. Since no responsive pleading was served at
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
(Gumabay vs. Baralin, 77 SCRA 258; Soledad vs. Mamangun, 8 SCRA 110).
14. May amendment be made to correct the jurisdictional defect after an Answer
was filed? NO. The amendment would require leave of court, a matter which
requires the exercise of discretion. The exercise of this discretion requires the
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.,
vs. Bautista, 6 SCRA 240).
VIII. SUMMONS
1. Summons is a writ by which the defendant is notified of the action brought against
him. It has two-fold purpose: 1) to acquire jurisdiction over the person of the
defendant; 2) to notify the defendant that an action has been commenced against
him.
2. When is a defendant deemed to have made a voluntary appearance? A. By
filing an answer (Guy vs. Gacott, GR No. 206147, January 13, 2016). B. By asking
an affirmative relief from the Court (Reicon Realty Builders Corp vs. Diamond
Dragon, GR No. 204796, February 4, 2015).
3. When is asking for affirmative relief not deemed a voluntary appearance?
The act of making a conditional appearance or special appearance in court to object
to the jurisdiction of the court over his person, is not deemed a voluntary
appearance or voluntary submission to the jurisdiction of the court.
4. BUT NOTE: SECTION 20., Rule 14, Voluntary Appearance. — The defendant's
voluntary appearance in the action shall be equivalent to service of summons. The
inclusion in a motion to dismiss of other grounds aside from lack of
jurisdiction over the person of the defendant shall not be deemed a voluntary
appearance.
5. How is service of summons effected? When the defendant is a foreign private
juridical entity which has transacted business in the Philippines, service may be
made on its resident agent designated in 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 agents within the Philippines (Sec. 12, Rule 14).
6. PLEASE TAKE NOTE: As a condition precedent to the issuance of the license
to transact business in the Philippines by any foreign corporation that such
corporation file with the Securities and Exchange Commission a written power of
attorney designating some person who must be a resident of the Philippines, on
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
resident agent shall be admitted and held as valid as if served upon the duly
authorized officers of the foreign corporation at its home office (Sec. 129,
Corporation Code).
7. What if the foreign juridical entity is not doing business in the Philippines,
how may service of summons be effected? By personal service coursed through
the appropriate court in foreign country with the assistance of DFA; By publication
in a newspaper of general circulation in the country where the defendant may be
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
electronic means that could generate proof of service; By such other means as the
court may in its discretion direct (Section 12, Rule 14).
8. How is service of summons upon effected upon a foreign private entity?
When the defendant is a foreign private juridical entity which has transacted
business in the Philippines, service may be made on its resident agent designated in
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
agents within the Philippines (Sec. 12, Rule 14).
9. How is service of summons effected upon a domestic private entity? When
the defendant is a corporation, partnership or association organized under the laws
of the Philippines with a juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary, treasurer, or in-house
counsel. (Sec. 11, Rule 14). The persons authorized to receive summons in Section
11, Rule 14 are exclusive (Nation Petroleun Gas vs. RCBC, GR No. 183370,
August 17, 2015). Service of summons on an officer other than those enumerated
in Sec. 11 of rule 14 is invalid (7107 Islands Publishing, Inc., vs. the house of
Printers Corp., GR No. 193420, October 14, 2015).
10. Service in person on defendant. Whenever practicable, the summons shall be
served by handling a copy thereof to the defendant in person, or, if he refuses to
receive and sign for it, by tendering it to him (Sec. 6, Rule 14). Service of
summons in the person of the defendant is generally preferred over
substituted service (Nation Petroleum Gas, Inc., vs. RCBC, G.R. No. 188370,
August 17, 2015). It is only when summons cannot be served personally
within a reasonable period of time that substituted service may be resorted
to (Chu vs. Mach Asia Trading Corp., 694 SCRA 302, 308).
11. The court reiterated the rule that the impossibility of prompt, personal service
should be shown by stating in the proof of service that efforts were made to find
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,
strictly, and fully comply with the requirements of substituted service (Miranda vs.
Court of Appeals, 326 SCRA 278).
12. Substituted service. If, for justifiable causes, the defendant cannot be served
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
some person of suitable age and discretion then residing therein, or (b) by leaving
the copies at defendant's office or regular place of business with some competent
person in charge thereof (Sec. 7, Rule 14).
13. Nature of Substituted service. Substituted service is a method extraordinary in
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-
310). Hence, return which merely states the alleged whereabouts of the defendants,
without indicating that such information was verified and without specifying the
efforts exerted to serve the summons, is not enough for compliance. So is mere
general statement that such efforts were made (Jose vs. Boyon, 414 SCRA 216).
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
for the branch clerk of court to require the sheriff to submit a return of the
summons assigned to the sheriff for service. The Sheriffs Return provides data to
the Clerk of Court, which the clerk uses in the Monthly Report of Cases to be
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
be considered reasonable time with regard to personal service on the
defendant (OCA vs. Cabrera-Faller, A.M. Nos. RTJ-11-2301-2303, January
16, 2018).
IX. DISMISSAL
1. A case was dismissed on the ground of lack of jurisdiction over the subject
matter. Then an action was subsequently instituted by the same plaintiffs in
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
again instituted an action in the now right court. While the action was
pending but before an answer was filed, the plaintiff decided to withdraw the
case. Is the plaintiff barred by the two-dismissal rule? – NO. Rule 17, Sec. 1
provides that if the case is once dismissed by the plaintiff before an answer is filed,
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
should have been prompted by the plaintiff in both instances and before an answer.
In this case, the first case was a dismissal on ground of lack of jurisdiction over
subject matter while the second case was dismissed on ground it was filed in the
wrong court. Therefore, the plaintiff can be filed for a third time.
X. MODES OF DISCOVERY
1. Deposition. It is the taking of testimony of any person, whether he be a party or
not, but at the instance of a party to the action. This testimony is taken out of court.
2. Is it necessary to ask permission from the court for the taking of deposition
if there is a pending action? If the court has acquired jurisdiction over the person
of the defendant or property subject of suit, but before service of an answer,
permission from the court is necessary. If there is already an answer, then leave of
court is not necessary.
3. How is deposition taken? 1) Deposition upon oral examination; 2) Deposition
upon written interrogatories.
4. Deposition upon written interrogatories. Rule 23, SECTION 25. Deposition
Upon Written Interrogatories; Service of Notice and of Interrogatories. — A
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
of the officer before whom the deposition is to be taken. Within ten (10) days
thereafter, a party so served may serve cross-interrogatories upon the party
proposing to take the deposition. Within five (5) days thereafter the latter may serve
re-direct interrogatories upon a party who has served cross-interrogatories. Within
three (3) days after being served with re-direct interrogatories, a party may serve re-
cross-interrogatories upon the party proposing to take the deposition.
5. Supposing the party sought to be examined refused to appear? The
attendance of witnesses may be compelled by the use of subpoena under Rule 21.
6. Where do you apply the sub-poena? SECTION 5. Subpoena for depositions.
— Proof of service of a notice to take a deposition, as provided in Sections 15 and
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
the deposition is to be taken. The clerk shall not, however, issue a subpoena duces
tecum to any such person without an order of the court. In short, the court of the
place where the deposition shall be taken.
7. What may be asked during the taking of deposition? Rule 23, SECTION 2.
Scope of examination. — Unless otherwise ordered by the court as provided by
Section 16 or 18 of this Rule, the deponent may be examined regarding any matter,
not privileged, which is relevant to the subject of the pending action, whether
relating to the claim or defense of any other party, including the existence,
description, nature, custody, condition, and location of any books, documents, or
other tangible things and the identity and location of persons having knowledge of
relevant facts.
8. Deposition before action or pending appeal. Rule 24. SECTION 1.
Depositions Before Action; Petition. — A person who desires to perpetuate his
own testimony or that of another person regarding any matter that may be
cognizable in any court of the Philippines, may file a verified petition in the court
of the place of the residence of any expected adverse party.
9. Written interrogatories. RULE 25. SECTION 1. Interrogatories to Parties;
Service Thereof. — Under the same conditions specified in Section 1 of Rule 23,
any party desiring to elicit material and relevant facts from any adverse parties shall
file and serve upon the latter written interrogatories to be answered by the party
served or, if the party served is a public or private corporation or a partnership or
association, by any officer thereof competent to testify in its behalf. N.B. Written
interrogatories are directed to adverse party, not to strangers.
10. Interrogatories under Rule 23 & Rule 25: Rule 23 – 1) There is deposition
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.
11. Effect of failure to serve written interrogatories. Unless thereafter allowed by
the court for good cause shown and to prevent a failure of justice, a party not served
with written interrogatories may not be compelled by the adverse party to give
testimony in open court, or to give a deposition pending appeal (Section 6, Rule
25).
12. Admission by the adverse Party. RULE 26, SECTION 1. Request for
Admission. — At any time after issues have been joined, a party may file and serve
upon any other party a written request for the admission by the latter of the
genuineness of any material and relevant document described in and exhibited with
the request or of the truth of any material and relevant matter of fact set forth in
the request. Copies of the documents shall be delivered with the request unless
copies have already been furnished.
13. Failure to act on the request for admission, the effect is implied admission.
RULE 26, SECTION 2. Implied Admission. — Each of the matters of which
an admission is requested shall be deemed admitted unless, within a period
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
whom the request is directed files and serves upon the party requesting the
admission a sworn statement either denying specifically the matters of which an
admission is requested or setting forth in detail the reasons why he cannot truthfully
either admit or deny those matters.
14. Applicability of the admission. RULE 26, SECTION 3. Effect of Admission.
— Any admission made by a party pursuant to such request is for the purpose of
the pending action only and shall not constitute an admission by him for any other
purpose nor may the same be used against him in any other proceeding.
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
by the court for good cause shown and to prevent a failure of justice, a party who
fails to file and serve a request for admission on the adverse party of material and
relevant facts at issue which are, or ought to be, within the personal knowledge of
the latter, shall not be permitted to present evidence on such facts.
16. Po vs. CA, 164 SCRA 668. A party should not be compelled to admit matters of
fact already admitted by his pleading and concerning which there is no issue, nor
should he be required to make a second denial of those already denied in his answer
to the complaint. A request for admission is not intended to merely reproduce or
reiterate the allegations of the requesting party's pleading but should set forth
relevant evidentiary matters of fact, or documents described in and exhibited with
the request, whose purpose is to establish said party's cause of action or defense.
Unless it serves that purpose, it is, as correctly observed by the Court of Appeals,
'pointless, useless' and 'a mere redundancy.'
17. Production or Inspection of Documents or Things. RULE 27, SECTION 1.
Motion for Production or Inspection; Order. — Upon motion of any party
showing good cause therefor, the court in which an action is pending may (a) order
any party to produce and permit the inspection and copying or photographing, by
or on behalf of the moving party, of any designated documents, papers, books,
accounts, letters, photographs, objects or tangible things, not privileged, which
constitute or contain evidence material to any matter involved in the action and
which are in his possession, custody or control; or (b) order any party to permit
entry upon designated land or other property in his possession or control for the
purpose of inspecting, measuring, surveying, or photographing the property or any
designated relevant object or operation thereon. The order shall specify the time,
place and manner of making the inspection and taking copies and photographs, and
may prescribe such terms and conditions as are just.
18. When may the physical and mental examination be ordered. In an action in
which the mental or physical condition of a party is in controversy, the court in
which the action is pending may in its discretion order him to submit to a physical
or mental examination by a physician (Section 1, Rule 28).
19. The order for examination may be made only on motion for good cause
shown and upon notice to the party to be examined and to all other parties,
and shall specify the time, place, manner, conditions and scope of the
examination and the person or persons by whom it is to be made (Section 2,
Rule 28).
20. If requested by the party examined, the party causing the examination to be made
shall deliver to him a copy of a detailed written report of the examining physician
setting out his findings and conclusions. After such request and delivery, the party
causing the examination to be made shall be entitled upon request to receive from
the party examined a like report of any examination, previously or thereafter made,
of the same mental or physical condition. If the party examined refuses to deliver
such report, the court on motion and notice may make an order requiring delivery
on such terms as are just, 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).
21. By requesting and obtaining a report of the examination so ordered or by taking
the deposition of the examiner, the party examined waives any privilege he may
have in that action or any other involving the same controversy, regarding the
testimony of every other person who has examined or may thereafter examine him
in respect of the same mental or physical examination (Section 4, Rule 28).
22. Refusal to comply with modes of discovery. Refusal to answer – the requesting
party may apply for subpoena to Court where the deposition is being taken.
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
himself to physical and mental examination, the Court, upon motion, issue: 1) An
order that the matters regarding which the questions were asked, or the character
or description of the thing or land, or the contents of the paper, or the physical or
mental condition of the party, or any other designated facts shall be taken to be
established for the purposes of the action in accordance with the claim of the party
obtaining the order; 2) An order refusing to allow the disobedient party to support
or oppose designated claims or defenses or prohibiting him from introducing in
evidence designated documents or things or items of testimony, or from
introducing evidence of physical or mental condition; 3) An order striking out
pleadings or parts thereof, or staying further proceedings until the order is obeyed,
or dismissing the action or proceeding or any part thereof, or rendering a judgment
by default against the disobedient party; 4) In lieu of any of the foregoing orders or
in addition thereto, an order directing the arrest of any party or agent of a party for
disobeying any of such orders except an order to submit to a physical or mental
examination (Section 3, Rule 29).
XI. DEMURRER TO EVIDENCE
1. When is the proper time to file Demurrer to Evidence? After the plaintiff
has completed the presentation of his evidence, the defendant may move for
dismissal on the ground that upon the facts and the law the plaintiff has shown
no right to relief.
2. What is the effect if the motion is denied? How about if the motion is
granted but reversed on appeal? If his motion is denied, he shall have the
right to present evidence. If the motion is granted but on appeal the order of
dismissal is reversed, he shall be deemed to have waived the right to present
evidence.
Motion to Dismiss Demurrer
1. MTD in Rule 16 is made 1. It is made after the
before answer. plaintiff rests its case.
2. There are several grounds. 2. There is only one ground.
3. If denied, defendant may 3. If denied, the defendant
file answer. will present evidence.
4. When granted, the 4. When granted, it may not be
complaint may be filed re-filed. The remedy is appeal.
except for, prescription, res
judicata, or claim is
extinguished.

Civil Demurrer
1. Leave of court is not required.
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
Criminal Demurrer (Petrev, RTC-CA), Rule 43 (Petrev, QJA-CA), and Rule 45 (RTC, CA-
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
allegation of fact the truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he relies to support his
denial. Where a defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny only the remainder.
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
this shall have the effect of a denial.
5. What are the different manners of denying an allegation? 1) By specifically
denying the allegation and setting forth the substance upon which one relies his
denial. 2) By specifically denying some part of the allegation and denying the rest.
3) By specifically denying the allegation for lack of knowledge sufficient to form a
belief as to the truth or falsity of the allegation.
6. What is the effect of defective denial? RULE 8, SECTION 11. Allegations
Not Specifically Denied Deemed Admitted. Material averment in the
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
to recover usurious interest are deemed admitted if not denied under oath.
7. Who may file a motion for summary judgment? RULE 25, SECTION 1.
Summary Judgment for Claimant. — A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after
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
thereof. SECTION 2. Summary Judgment for Defending Party. — A party
against whom a claim, counterclaim, or cross-claim is asserted or a declaratory relief
is sought may, at any time, move with supporting affidavits depositions or
admissions for a summary judgment in his favor as to all or any part thereof.
8. When is this remedy available? When there is no genuine issue. Although the
defendant denies the material allegation in the claim, but the denial is sham.
7. Annulment of Judgment. What is the coverage? This Rule shall govern the
annulment by the Court of Appeals of judgments or final orders and
resolutions in civil actions of Regional Trial Courts for which the ordinary
remedies of new trial, appeal, petition for relief or other appropriate remedies
are no longer available through no fault of the petitioner (Sec. 1, Rule 47).
8. What are the ground? Extrinsic Fraud and Lack of Jurisdiction. Fraud is
regarded as extrinsic where it prevents a party from having a trial or from
presenting his entire case to the court or where it operates upon matters
pertaining not to the judgment itself but the manner in which it is procured.
The overriding consideration when extrinsic fraud is alleged is that the
fraudulent scheme of the prevailing party litigant prevented a party from
having his day in court (Alaban vs. CA, 470 SCRA 697).
9. What is the period to file? If based on extrinsic fraud, the action must be
filed within four (4) years from its discovery; and if based on lack of
jurisdiction, before it is barred by laches or estoppel.
10. Does RTC have jurisdiction to entertain petition for annulment of
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
jurisdiction over the former. It shall be treated as an ordinary civil action and
Sections 2, 3, 4, 7, 8 and 9 of this Rule shall be applicable thereto (Section. 4,
Rule 47).
XIV. PROVISIONAL REMEDIES
1. Attachment. It is a provisional remedy issued by the court where the action is
pending levying the property or properties of the defendant to serve as security for
whatever judgment the said court might render in favor of the plaintiff. It is
provisional because it constitutes temporary measure availed of during the
pendency of action and they are ancillary because it is dependent upon the main
action.

Judgment on the Pleadings
There is absence of factual issue
because the answer tenders no
issue.
Only the claiming party can file
the motion.
It is based on pleadings alone.
Only three (3) day notice is
required.
XIII. POST JUDGMENT REMEDIES
1. What is “Neypes Rule”? If the motion for reconsideration or new trial is
denied, the movant has a “fresh period” of fifteen (15) days from receipt of
Summary Judgment
Answers tenders an issue, but the
issue is not genuine.
The motion may be filed by the
claiming party or defending party.
It is based on pleadings, affidavits,
depositions and admissions.
Ten (10) day notice is required.
2. Will the writ of preliminary attachment be dissolved if the parties had
already entered into compromise agreement? NO. The parties to the
compromise agreement should not be deprived of the protection provided by an
attachment lien. If the rule were otherwise, it is easier for the debtor whose
property was attached to have the lien released by entering into a compromise
agreement without the intention of actually honoring it (Lim, Jr., vs. spouses
Lazaro, G.R. No. 185734, July 3, 2013).
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
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.
4. What is the purpose of preliminary attachment? Preliminary attachment is
designed to seize the property of the debtor before final judgment and put the
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
personal or substituted services of summons on the defendant cannot be
effected. (Philippine Commercial International Bank vs. Alejandro, 533 SCRA
738).
5. Is it necessary for the court to have acquired jurisdiction over the person
of the defendant when the writ is implemented? Yes, because under the
rules: “No levy on attachment pursuant to the writ issued under Section 2 hereof shall be
enforced unless it is preceded, or contemporaneously accompanied, by service of summons, together
with a copy of the complaint, the application for attachment, the applicant's affidavit and bond,
and the order and writ of attachment, on the defendant within the Philippines.” (Sec. 5, Rule
57) Thus, there must be prior or contemporaneous service of summons.
6. Are there exceptions to prior or contemporaneous service of summons?
Yes, under the rules: “The requirement of prior or contemporaneous service of
summons shall not apply where the summons could not be served 1. personally
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,
Rule 57).
7. May a property under custodia legis be attached? Yes. Under the Rules: If
the property sought to be attached in custodia legis, a copy of the writ of attachment
shall be filed with the proper court or quasi-judicial agency, and notice of the
attachment served upon the custodian of such property (Sec. 7, Rule 57).
8. Supposing sheriff attached the property of the third party, what are the
remedies of the latter if any? He may avail the remedy of terceria (Sec. 14, Rule
57). The third party-claimant may also invoke the court’s authority in the same
case and move for a summary hearing on his claim. If his claim is meritorious,
the court shall lift the attachment (Ching vs. CA, 423 SCRA 356). The third party
may file a separate civil action to nullify the levy (Ching, id.).
9. What are grounds which may be invoked in the motion to discharge
attachment? 1) Attachment was improperly or irregularly issued; 2) Bond is
insufficient; 3) Attachment is excessive with respect to the excess; 4) Property is
exempt from execution.
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
Section 20, Rule 57 which provides that: “An application for damages on account
of improper, irregular or excessive attachment must be filed before the trial or
before appeal is perfected or before the judgment becomes executory, with due
notice to the attaching party and his surety or sureties.” (Carlos vs. Sandoval, 471
ACRA 266, 289-290).
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
perform or refrain from performing an act or acts. (Sec. 1, Rule 58). Preliminary
mandatory injunction – order to require the doing of an act. Preliminary
prohibitory injunction – order to refrain from doing an act.
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
right to be protected; (2) this right is directly threatened by an act sought to be
enjoined; (3) the invasion of the right is material and substantial; and (4) there is
an urgent and paramount necessity for the writ to prevent serious and irreparable
damage (Sps. Dulnuan vs. MBTC, July 8, 2015).
13. Is the rule on contemporaneous service of summons applicable to
application for preliminary injunction? YES. When an application for a writ
of preliminary injunction or a temporary restraining order is included in a
complaint or any initiatory pleading, the case, if filed in a multiple-sala court, shall
be raffled only after notice to and in the presence of the adverse party or the
person to be enjoined. In any event, such notice shall be preceded, or
contemporaneously accompanied, by service of summons, together with a copy
of the complaint or initiatory pleading and the applicant's affidavit and bond,
upon the adverse party in the Philippines (Sec. 4 (c), Rule 58).
14. Are there exceptions? YES However, where the summons could not be served
personally or by substituted service despite diligent efforts, or the adverse party is
a resident of the Philippines temporarily absent therefrom or is a nonresident
thereof, the requirement of prior or contemporaneous service of summons shall
not apply (Sec. 4 (c), Rule 58).
15. What is temporary restraining order? It is an order issued to preserve the status
quo until the hearing of the application for a writ of preliminary injunction because
preliminary injunction cannot be issued ex-parte (Bacolod Water District vs.
Labayen, 446 SCRA 110). By its nature, it could be considered as a provisional
remedy within a provisional remedy because it is issued to preserved the status quo
for a limited period until the court decides to issue a writ of preliminary injunction.
16. May TRO be issued ex-parte? YES. If it shall appear from facts shown by
affidavits or by the verified application that great or irreparable injury would result
to the applicant before preliminary injunction can be heard, the court to which the
application for preliminary injunction was made, may issue ex parte a temporary
restraining order to be effective only for a period of twenty (20) days from service
on the party or person sought to be enjoined x x x. (Section 5, Rule 58).
17. May TRO be issued by the EJ? If the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, the executive judge of a
multiple-sala court or the presiding judge of a single-sala court may issue ex-parte a
temporary restraining order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the next preceding section
as to service of summons and the documents to be served therewith (Sec. 5, Rule
58).
18. What should the judge where the case is raffled do after the EJ issued the 72-
hour TRO? Within the aforesaid seventy-two (72) hours, the judge before whom
the case is raffled shall conduct a summary hearing to determine whether the
temporary restraining order shall be extended until the application for preliminary
injunction can be heard. In no case shall the total period of effectivity of the
temporary restraining order exceed twenty (20) days, including the original seventy-
two hours provided herein (Sec. 5, Rule 57).
19. Is 20-day TRO extendible? NO. The Rules provide: “In no case shall the total
period of effectivity of the temporary restraining order exceed twenty (20) days,
including the original seventy-two hours provided herein.” (Sect. 5, Rule 58).
XV. SPECIAL CIVIL ACTION
1. What is interpleader? It is a special civil action filed by a person against whom two
conflicting claims are made upon the same subject matter and over which he claims
no interest, or if he claims interest, the same is not disputed by the parties. This
action is brought against the conflicting claimants to compel them to interplead and
litigate their claims among themselves.
2. When is interpleader proper? Whenever conflicting claims upon the same subject
matter are or may be made against a person who claims no interest whatever in the
subject matter, or an interest which in whole or in part is not disputed by the
claimants, he may bring an action against the conflicting claimants to compel them
to interplead and litigate their several claims among themselves (Sec. 1, Rule 62).
3. What is the jurisdiction of interpleader? It depends on the subject matter of
the conflicting claims: 1) If the subject matter of the action is personal property
– determine the value of the property. 2) If the conflicting claims involve right to
receive particular sum – determine the amount of the sum claimed. 3) If the subject
matter is real property – determine the assessed value of the property. 4) If the
subject matter is incapable of pecuniary estimation – RTC.
4. Declaratory Relief. Declaratory relief is defined as an action by any person
interested in a deed, will, contract or other written instrument, executive order or
resolution, to determine any question of construction or validity arising from the
instrument, executive order or regulation, or statute; and for a declaration of his
rights and duties thereunder. The only issue that may be raised in such a petition
is the question of construction or validity of provisions in an instrument or statute
(Province of Camarines Sur vs. CA, 600 SCRA 569).
5. PLEASE TAKE NOTE: Declaratory relief must be filed before any breach or
violation. If the law or contract has been violated prior to the filing of declaratory
relief, the latter recourse should be dismissed (Malana vs. Tappa, 600 SCRA 189).
BUT: If the breached occurred during the pendency of declaratory relief, the latter
will converted to ordinary civil action (Sec. 6, Rule 63).
6. What are the subject matter in a petition for declaratory relief? Deed; Will;
Contract or other written instrument; Statute; Executive order or regulation;
Ordinance; Any other governmental regulation. NOTE: These are exclusive.
7. Which court has jurisdiction? The RTC has jurisdiction as declaratory relief raises
issue which is incapable of pecuniary estimation (Sec. 19[1], BP 129; Sec.1, Rule
63). SC has no original jurisdiction over declaratory relief (Clark Investors and
Locators Assn. vs. Secretary, July 6, 2015). If the action is for quieting of title to
real property, the jurisdiction depends upon the assessed value of the real property
(Heirs of Valeriano S. Concha vs. SPS Lumucso, 540 SCRA 1, 16). Action for
reformation of contract should be treated as action in capable of pecuniary
estimation, hence RTC. An action for consolidation of ownership is an action
incapable of pecuniary estimation (Cruz vs. Leis, 327 SCRA 570).
8. Certiorari. It is also called “prerogative writ” because it is not demandable as a
matter of right. Its purpose is the correction of errors of jurisdiction which includes
commission of grave abuse of discretion amounting to lack or excess of jurisdiction.
It is an original and independent action and not a mode of appeal. Certiorari cannot
be substitute for appeal or lost appeal.
9. Rule 45 vs. Rule 65. 1) Certiorari under Rule 45 is a mode of appeal while certiorari
under Rule 65 is a special civil action. 2) Certiorari under Rule 45 is just a
continuation of the appellate process of the original case, but under Rule 65, it is
an original action. 3) Certiorari under Rule 45 seeks to review the judgment while
certiorari under Rule 65 seeks to annul the proceedings or judgment. 4) Certiorari
under Rule 45 raises questions of law while under Rule 65, it raises question of
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
or 60 day. 5) Certiorari under Rule 45 does not require filing of MR, while in
certiorari under Rule 65, the filing of MR is required. 6) The parties in certiorari
under Rule 45 are the same parties to the action while the parties in Rule 65 are the
tribunal, board or officer exercising quasi-judicial function. 7) Certiorari under Rule
45 may only be filed before SC, while certiorari under Rule 65 may be filed with the
RTC.
10. Essential requisites for a petition for certiorari. 1. The petition is directed
against a tribunal, board, or officer exercising judicial or quasi-judicial functions. 2.
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
neither appeal nor plain, speedy or adequate remedy in the ordinary course of law
for the purpose annulling or modifying the proceeding.
11. Expanded scope of Certiorari. “Petition for certiorari and prohibition are
appropriate remedies to raise constitutional issues and to review and/or prohibit or
nullify the acts of legislative and executive officials” (Araullo vs. Aquino, III, July
1, 2014). The basis of this pronouncement is the second paragraph of Section 1,
Article VIII of the Constitution.
12. Does the filing of petition stay the proceedings? NO. The petition shall not
interrupt the course of the principal case unless a temporary restraining order or a
writ of preliminary injunction has been issued against the public respondent from
further proceeding in the case (Sec. 7, Rule 65).
13. What is the period to file the petition? The petition may be filed not later than
sixty (60) days from notice of the judgment, order or resolution sought to be
assailed in the Supreme Court or, if it relates to the acts or omissions of a lower
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
may also be filed in the Court of Appeals whether or not the same is in aid of its
appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it
involves the acts or omissions of a quasi-judicial agency, and unless otherwise
provided by law or these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals. (Sec. 4, Rule 65).
14. May the period be extended? Yes, when: Most persuasive and weighty reasons.
To relieve a litigant from injustice. Good faith of the defaulting party. Compelling
circumstances. Merits of the case. Cause not entirely attributable to the defaulting
party. No showing that it is frivolous. In the name of substantial justice and fair
play. Importance of issues involved (Labao vs. Flores, 634 SCRA 723).
15. Prohibition. It is an extra-ordinary writ commanding the tribunal, corporation,
board, officer or person, whether exercising judicial, quasi-judicial or ministerial
functions, to desist from further proceedings when such are conducted without
or in excess of its or his jurisdiction, or with grave abuse of discretion amounting
to lack or excess of jurisdiction, there being no appeal or any other plain, speedy,
and adequate remedy in the ordinary course of law (Sec. 2, Rule 65).
16. Requisites. (a) it must be directed against a tribunal, corporation, board or person
exercising functions, judicial or ministerial; (b) the tribunal, corporation, board or
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
remedy in the ordinary course of law (Belmonte vs. Deputy Ombudsman,
January 13, 2016).
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
resulting from an office, trust, or station, or unlawfully excludes another from the
use and enjoyment of a right or office to which such other is entitled, and there is
no other plain, speedy and adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition for mandamus to command
the respondent to do the act required to be done to protect the rights of the
petitioner (Sec. 3, Rule 65).
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
a right or office to which such other is entitled.
19. Mandamus will lie to compel the doing of a ministerial act. The act is
ministerial if the act is should be performed under a given state of facts, in a
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
(Cudia vs. Superintendent of PMA, February 24, 2015).
20. Quo warrato. It is a proceeding generally defined as an action against a person who
usurp, intrudes into, or unlawfully holds or exercise a public office (Tecson vs.
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
who usurps, intrudes into, or unlawfully holds or exercises a public office, position
or franchise; (b) Against a public officer who does or suffers an act which, by the
provision of law, constitutes a ground for the forfeiture of his office; or (c) Against
an association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority so to act (Sec. 1, Rule 66).
22. May it be filed by an individual? A person claiming to be entitled to a public
office or position usurped or unlawfully held or exercised by another may bring an
action therefor in his own name (Sec. 5, Rule 66).
23. What is the jurisdiction and venue of petition? An action under the preceding
six sections can be brought only in the Supreme Court, the Court of Appeals, or
in the Regional Trial Court exercising jurisdiction over the territorial area where
the respondent or any of the respondents resides, but when the Solicitor General
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).
24. What is the period for the filing of petition? Nothing contained in this Rule shall
be construed to authorize an action against a public officer or employee for his
ouster from office unless the same be commenced within one (1) year after the
cause of such ouster, or the right of the petitioner to hold such office or
position, arose; nor to authorize an action for damages in accordance with the
provisions of the next preceding section unless the same be commenced within one
(1) year after the entry of the judgment establishing the petitioner's right to the
office in question (Sec. 11, Rule 66).
25. Expropriation. Can the government divert the use of property taken different
from the purpose for which the
petition was filed? No. a condemnor should commit the use of the property
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
condemnor to return the said property to its owner, if the latter so desires (Vda.
De Ounao vs. Republic, 642 SCRA 385, 409).
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
a defendant has previously appeared or answered, he may present evidence as to
the amount of the compensation to be paid for his property, and he may share in
the distribution of the award. (Sec. 3, Rule 67).
27. Which court has jurisdiction? It is the RTC has jurisdiction because petition for
expropriation is an action incapable of pecuniary estimation regardless of the value
of the subject property (Barangay San Roque vs. Hiers of Pastor, 334 SCRA
127, 134).
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
date and due execution of the mortgage; its assignments, if any; the names and
residences of the mortgagor and the mortgagee; a description of the mortgaged
property; a statement of the date of the note or other documentary evidence of the
obligation secured by the mortgage, the amount claimed to be unpaid thereon; and
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
shall be made defendants in the action (Section 1, Rule 68).
29. Please take note: In a indebtedness subject to mortgage, the creditor has the
following alternative remedies: 1) To file an action for collection of sum of money.
2) To foreclose the mortgage. The remedies are mutually exclusive; such that the
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
splitting of cause of action (Bank of America, NT & SA vs. Amreican Realty
Corp, 321 SCRA 659, 667-669; Marilag vs. martinez, July 22, 2015).
30. Jurisdiction of judicial foreclosure. Judicial foreclosure is a real action. Thus,
jurisdiction depends on the assessed value of real property. Thus, if the value of
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.
31. What should the judgment in judicial foreclosure contain? Ascertainment of
the amount due to the plaintiff upon the mortgage debt or obligation, including
interest and other charges as approved by the court, and costs; The sum so found
due; Order the amount found due to be paid to the court or to the judgment
obligee within a period of not less than ninety (90) days nor more than one hundred
twenty (120) days from the entry of judgment, and admonition that in default of
such payment the property shall be sold at public auction to satisfy the judgment
(Section 2, Rule 68).
32. What is equity of redemption? It is the period within which the mortgagor may
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
may be made even after the foreclosure sale provided it is made before the sale is
confirmed by court (GSIS vs. CFI, 175 SCRA 19, 25).
33. What is the effect if the mortgagor failed to pay the sum due within the
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
of real estate under execution (Sec. 3, Rule 57). There should be motion, but the
motion is ex-parte (Govt. of PI vs. De Las Lajigas, 55 Phil 668, 672).
34. What should the mortgagee do, after the sale of the mortgage property is
made? He should file a motion for confirmation of sale (Sec. 3. Rule 68). Here
the motion requires notice and hearing (Tiglao vs. Botones, 90 Phil. 275, 278).
The confirmation of sale shall operate to divest the rights in the property of all the
parties to action and vest the rights in the purchaser, subject to the rights of
redemption under the law (Sec. 3, Rule 68). Order of confirmation is appealable.
35. What is the effect of finality of the confirmation of the sale? Upon the finality
of the order of confirmation or upon the expiration of the period of redemption
when allowed by law, the purchaser at the auction sale or last redemptioner, if any,
shall be entitled to the possession of the property unless a third party is actually
holding the same adversely to the judgment obligor. The said purchaser or last
redemptioner may secure a writ of possession, upon motion, from the court which
ordered the foreclosure (Sec. 3, Rule 68). The motion is ex-parte (Carlos vs. CA,
537 SCRA 247, 253).
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
sale, the court, upon motion, shall render judgment against the defendant for any
such balance for which he may be personally liable to the plaintiff, upon which
execution may issue immediately if the balance is all due at the time of the rendition
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,
which time shall be stated in the judgment (Sec. 6, Rule 68).
37. Is there still a need to file a separate case to recover the deficiency? No need.
A motion for the recovery of deficiency can be filed in the same court where judicial
foreclosure was filed (Sec. 6, Rule 68).
38. Forcible entry and unlawful Detainer. What are the two causes of actions
under Rule 70? 1) Forcible entry – an action to recover possession of a property
from the defendant whose occupation thereof is illegal from the beginning since he
acquired possession by force, intimidation, threat, strategy or stealth. 2) Unlawful
detainer – an action for recovery of possession from the defendant whose
possession of the property was lawful from the beginning, but became illegal when
he continued his possession despite the termination of his right thereunder
(Sarmieta vs. Manalite Homeowners Association, 632 SCRA 538, 546).
39. What should be alleged in forcible entry? Plaintiff had prior physical possession.
And, that defendant deprived plaintiff of his possession by means of force,
intimidation, threat, strategy or stealth (FITSS).
40. Please take note: Prior physical possession is the primary consideration in a
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
586).
41. What is the meaning of prior physical possession in forcible entry cases?
While prior physical possession is an indispensable requirement in forcible entry
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
one's will or by the proper acts and legal formalities established for acquiring such
right. Possession can be acquired by juridical acts. These are acts to which the law
gives the force of acts of possession. Juridical acts were sufficient to establish the
plaintiff's prior possession of the subject property. (Mangaser vs. Ugay,
December 3, 2014).
42. What should be alleged in the complaint for unlawful detainer? Possession of
the property by the defendant was by contract with or by tolerance of the plaintiff.
1) Such possession became illegal upon notice by the plaintiff to the defendant of
the termination of the latter’s possession. 2) Defendant remained in possession of
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
instituted the complaint for ejectment (Romullo vs. Samahang
Magkakapitbahay ng Bayanihan Compound Homeowners Association, 632
SCRA 411, 419-420).
43. What is the effect if there is failure to alleged facts necessary for forcible entry
and unlawful detainer? The jurisdictional facts must appear on the face of the
complaint. When the complaint fails to aver facts constitutive of forcible entry or
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
reinvindicatoria (Jose vs. Alfuerto, November 26, 2012; Suarez vs. Emboy, March
12, 2014).
44. Please take note: When the entry is by stealth, the one-year period to file action
should reckoned from the discovery of entry (Nunez vs. SLTEAS Phoenix
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
to comply with such demand (Piedad vs. Gurieza, June 18, 2014). The rule on
tolerance does not apply in a case where there was forcible entry at the start (Munoz
vs. CA, 214 SCRA 216, 224). Hence, in this case, unlawful detainer is not the proper
remedy (Jose vs. Alfuerto, November 26, 2012).
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
with the conditions of the lease and to vacate is made upon the lessee, or by
serving written notice of such demand upon the person found on the premises, or
by posting such notice on the premises if no person be found thereon, and the
lessee fails to comply therewith after fifteen (15) days in the case of land or five (5)
days in the case of buildings (Sec. 2, Rule 70).
46. Demand is to “pay unpaid rental or to vacate”. Will this make out a case of
unlawful detainer? No. It should be demand to pay and vacate. A demand in the
alternative to pay the increased rental or otherwise vacate the land is not a demand
that will give rise to an unlawful detainer case (Penas vs. CA, 233 SCRA 744, 747).
47. Is there default in ejectment cases? NO. Should the defendant fail to answer the
complaint within the period above provided, the court, motu proprio or on motion
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).
48. What should the court do in case tenancy relationship is alleged in the
answer? Where tenancy is raised as a defense, the court must conduct a hearing on
the matter to determine the veracity of the allegations of tenancy (Onquit vs.
Binamira-Parcia, 297 SCRA 354).
49. How to stay the execution of judgment? Appeal is perfected and the defendant
files a sufficient supersedeas bond, approved by the Municipal Trial Court and
executed in favor of the plaintiff to pay the rents, damages, and costs accruing down
to the time of the judgment appealed from. (Sec. 19, Rule 70). In the absence of a
contract, he shall deposit with the Regional Trial Court the reasonable value of the
use and occupation of the premises for the preceding month or period at the rate
determined by the judgment of the lower court on or before the tenth day of each
succeeding month or period (Sec. 19, Rule 70).
XVI. EXECUTION
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
be enforced within the five-year period from entry of judgment because within that
period, the writ may be enforced by motion (Sec. 6, Rule 39).
2. How may final and executory judgment or order be executed? 1) Within five
(5) years from the date of its entry. 2) After the lapse of such time, and before it is
barred by the statute of limitations.
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.
It is not intended to re-open any issue affecting the merits of the case judgment
debtor’s case nor the propriety or correctness of the first judgment. It is a new and
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
SCRA 8, 15-16).
4. What are the defenses that may be invoked in an action to revive?
Jurisdictional defenses. Prescription. Payment. Other defenses arising after the
finality of judgment NOTE: It may even be subject to counterclaims arising out of
the transactions not connected with the former controversy (Basilonia vs.
Villaruz, August 10, 2015).
5. Please take note: The revived judgment may also be enforced by motion within five
(5) years from the date of its entry and thereafter by action before it is barred by
the statute of limitations (Section 6, Rule 39; PNB vs. Bondoc, 14 SCRA 770,
770-772).
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
or in the place where the plaintiff or defendant resides or in any other place
designated by the statutes. VENUE: Infante vs. Aran Builders, 531 SCRA 123 –
the proper venue depends on the determination of whether the present action for
revival judgment is real or personal action.
7. May the running of the five-year period be interrupted? The Court in certain
instances, allowed execution of the judgment by mere motion despite the lapse of
he five-year time. In many instances, the delays in the execution of judgment were
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
defendant have the effect of suspending the running of the prescriptive period for
the enforcement of the judgment (Camacho vs. CA, 287 SCRA 611; Republic vs.
CA, 260 SCRA 344, 349-350).
8. What is the procedure if the property of third party is levied? Basic principle:
the execution may issue only upon a person who is a party to the action or
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
not owned by the judgment debtor or by one not a party to the case should not be
levied.
9. What is the procedure if the property of third party is levied? Under the Rules,
a person not a party to the action, claiming a property levied upon may execute an
affidavit of his title or right of possession over the property. The affidavit shall be
served upon the officer making a levy and a copy thereof must also be served upon
the judgment oblige (Section 16, Rule 39). This remedy of the claiming party is
called TERCERIA.
10. After receipt of the affidavit of claim, what should the sheriff do? The officer
shall not be bound to keep the property, unless such judgment obligee, on demand
of the officer, files a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied on. The officer shall
not be liable for damages for the taking or keeping of the property, to any third-
party claimant if such bond is filed. (Section 16, Rule 39).
11. Suppose damage was incurred by the third party on account of officer’s
taking and keeping of his property, when should the action against the bond
be filed? The action should be filed within one hundred twenty (120) days from
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
against the bond unless the action therefor is filed within one hundred twenty (120)
days from the date of the filing of the bond.
XVII. JURISDICTION IN CRIMINAL CASES
1. Requisites for the exercise of criminal jurisdiction.1) Jurisdiction over the
subject matter. 2) Jurisdiction over the territory. 3) Jurisdiction over the person of
the accused.
2. Crimes within the jurisdiction of Sandiganbayan. 1) Violations of Republic
Act No. 3019, as amended, other known as the Anti-Graft and Corrupt Practices
Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII, Book II of
the Revised Penal Code, where one or more of the accused are officials occupying
the following positions in the government, whether in a permanent, acting or
interim capacity, at the time of the commission of the offense. 2) Other offenses
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
office. 3) Criminal cases filed pursuant to and in connection with Executive Order
Nos. 1, 2, 14 and 14-A, issued in 1986. (Section 4, RA 8249).
3. Who are officials covered by the jurisdiction of Sandiganbayan? Officials of
the executive branch occupying the positions of regional director and higher,
otherwise classified as Grade '27' and higher, of the Compensation and Position
Classification Act of 1989 (Republic Act No. 6758), this includes: (a)
Provincial governors, vice-governors, members of the sangguniang
panlalawigan, and provincial treasurers, assessors, engineers, and other city
department heads; (b) City mayor, vice-mayors, members of the sangguniang
panlungsod, city treasurers, assessors, engineers, and other city department heads;
(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
higher rank; (e) Officers of the Philippine National Police while occupying the
position of provincial director and those holding the rank of senior superintended
or higher; (f) City and provincial prosecutors and their assistants, and officials and
prosecutors in the Office of the Ombudsman and special prosecutor; (g) Presidents,
directors or trustees, or managers of government-owned or -controlled
corporations, state universities or educational institutions or foundations. Members
of Congress and officials thereof classified as Grade '27' and up under the
Compensation and Position Classification Act of 1989. Members of the judiciary
without prejudice to the provisions of the Constitution; Chairmen and members of
Constitutional Commission, without prejudice to the provisions of the
Constitution; and All other national and local officials classified as Grade '27' and
higher under the Compensation and Position Classification Act of 1989.
4. Please take note: In cases where none of the accused are occupying positions
corresponding to Salary Grade '27' or higher, as prescribed in the said Republic Act
No. 6758, or military and PNP officer mentioned above, exclusive original
jurisdiction thereof shall be vested in the proper regional court, metropolitan
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
Blg. 129, as amended.
5. Further: The Sandiganbayan shall exercise exclusive appellate jurisdiction over final
judgments, resolutions or order of regional trial courts whether in the exercise of
their own original jurisdiction or of their appellate jurisdiction as herein provided.
6. Where should the criminal action be instituted? Where the offense was
committed or, where any of its essential ingredients occurred.
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
to show that the offense of estafa under Section 1(b), Art. 315 was committed
within the jurisdiction of the RTC of Makati. Other than the lone allegation in the
information, there is nothing in the prosecution evidence which even mentions that
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
jurisdiction over the offense (Trenas vs. People, 664 SCRA 355).
8. What are the exemptions to the rule on venue in criminal cases? 1) Where the
offense was committed under the circumstances enumerated in Art. 2, of the RPC.
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
criminal action need not be instituted in the actual place where the offense was
committed. It may be instituted and tried in the court of any municipality or
territory where such train, aircraft, or vehicle passed during its trip. The action may
also be instituted and tried in the place of departure and arrival (Sec. 15(b), Rule
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
110. 5) Where the offense is cognizable by Sandiganbayan; 6) RA 8042, as amended.
XVIII. PROSECUTION OF OFFENSES
1. How is criminal action instituted? It depends on whether the offense requires
preliminary investigation: If PI is required, then criminal action is instituted by filing
a complaint or information with the proper officer for the purpose of preliminary
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
it is in MM or other chartered cities.
2. What is the significance of the institution of criminal action on the
prescriptive period of crime? Institution of the criminal action shall interrupt the
period of prescription of the offense charged unless otherwise provided in special
laws. PLEASE TAKE NOTE: The ruling in Zaldivia vs. Reyes, 211 SCRA 277,
is not anymore controlling that with respect to special laws, prescription is
interrupted by the filing of information in Court (RA 3326). Now, what is
controlling is People vs. Pangilinan, 672 SCRA 105, June 13, 2012 wherein the
SC ruled that there is no more distinction between cases under the RPC and those
covered by special laws.
3. When is objection to the form of the complaint or information be made?
Objections relating to the form of the complaint or information cannot be made
for the first time on appeal. The accused should move before arraignment either
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
information (People vs. Teodoro, 607 SCRA 307).
4. Is it necessary to allege in the information the qualifying and aggravating
circumstance? What is the effect the information failed to alleged the same?
Every information must state the qualifying and the aggravating circumstances
attending the commission of the crime. Failure to state an aggravating circumstance,
even if duly proven at trial, will not be appreciated as such (People vs. Felciano,
May 5, 2014).
5. When is amendment made without leave of court? A complaint or information
may be amended without leave of court, at any time before the accused enters his
plea. After the plea and during trial, a formal amendment by only be made with
leave of court and when it is done without causing prejudice to the rights of the
accused (Sec. 14, Rule 110).
6. When is leave of court required even if amendment is made before plea? First,
amendment which downgrades the nature of the offense charged. Second,
amendment which excludes any accused from the complaint or information.
XIX. PROSECUTION OF CIVIL ACTION
1. GENERAL RULE: When a criminal action is instituted, the civil action for the
recovery of the civil liability arising from the offense charged shall be deemed
impliedly instituted.
2. Consequences when the civil liability is instituted with the criminal action.
After the criminal action is commenced, the separate civil action arising therefrom
cannot be instituted until final judgment has been entered in the criminal action. If
the criminal action is filed after the said civil action has already been instituted, the
latter shall be suspended in whatever stage it may be found before judgment on the
merits (Sec. 2, Rule 111).
3. During the pendency of the criminal action, the running of the period of
prescription of the civil action which cannot be instituted separately or whose
proceeding has been suspended shall be tolled. The extinction of the penal action
does not carry with it extinction of the civil action.
4. However, the civil action based on delict shall be deemed extinguished if there is a
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. When civil action may proceed independently? In the cases provided in Articles
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
criminal action and shall require only a preponderance of evidence. In no case,
however, may the offended party recover damages twice for the same act or
omission charged in the criminal action (Sec. 3, Rule 111).
6. Consequences of independent civil action. The right to civil action shall proceed
independently of the criminal action. The quantum of evidence required is
preponderance of evidence. There is no need for reservation because the civil action
is not based on crime.
7. Rule on BP 22 cases: The criminal action for violation of Batas Pambansa Blg. 22
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
recovery of civil liability in cases of violation of BP 22 is allowed when civil case if
filed ahead of the criminal case (Lo Bun Tiong vs. Balboa, 542 SCRA 504).
8. Prejudicial question. A prejudicial question is understood in law to be that which
arises in a case the resolution of which is a logical antecedent of the issue involved
in the criminal case, and the cognizance of which pertains to another tribunal. It is
determinative of the criminal case, but the jurisdiction to try and resolved it is
lodged in another tribunal. (Dominguez Agronomic vs. Liclican, 2015).
9. Elements. The elements of a prejudicial question are: (a) the previously instituted
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
or not the criminal action may proceed.
10. NOTE: There is prejudicial question when the civil case is previously filed. If the
criminal case is filed first, there is no pre-judicial question (Pimentel vs. Pimentel,
630 SCRA 436).
11. Omictin vs. CA, 512 SCRA 70. The petitioner, as the supposed operations
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
filed before the SEC a case questioning the legality of petitioner’s appointment as
corporate officer. Private respondent filed a motion to suspend on the ground of
pre-judicial question. THERE IS PRE-JUDICIAL QUESTION. Under the
circumstances, since the alleged offended party is a corporation, the validity of the
demand for the delivery of the subject vehicles rests upon the authority of the
person making such a demand on the company’s behalf. Thus, if it is found out
that the petitioner’s appointment is invalid, he has no right to demand for and in
behalf of the corporation and the demand to return is likewise invalid. Hence, a
prejudicial question.
12. An administrative case previously filed can also be used as pre-judicial question to
a criminal case. An administrative case is deemed a civil case. (San Miguel
Properties vs. Perez, 2013).
13. Preliminary Investigation. Rule 43, cannot be availed of to question the
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
circumstances as would engender a well-founded belief that a crime has been
committed and the accused may probably be guilty thereof. The determination of
probable cause lies solely within the sound discretion of the investigating public
prosecutor after the conduct of a preliminary investigation. It is a sound judicial
 policy to refrain from interfering with the determination of what constitutes
sufficient and convincing evidence to establish probable cause for the prosecution
of the accused.
14. May hearsay evidence be admitted during preliminary investigation? Yes.
The evidence necessary to establish probable cause is based only on the likelihood,
or probability of guilt. In fact, probable cause can be established with hearsay
evidence. According to the case of Estrada, hearsay evidence is admissible in
determining probable cause in the preliminary investigation because such
investigation is merely preliminary investigation because such investigation is
merely preliminary, and does not finally adjudicate rights and obligations of the
parties (Estrada vs. Office the Ombudsman. Jan. 21, 2015).
15. What is an inquest “proceedings”? When a person is lawfully arrested without a
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
proper court on the basis of the affidavit of the offended party or arresting officer
or person (Section 6, Rule 112).
16. Can a person validly arrested without a warrant ask for preliminary
investigation? Yes. Before the complaint or information is filed, the person
arrested may ask for a preliminary investigation in accordance with this Rule, but
he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, in the presence of his counsel. Notwithstanding the waiver, he may
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
without a preliminary investigation, the accused may, within five (5) days from the
time he learns of its filing, ask for a preliminary investigation with the same right to
adduce evidence in his defense as provided in this Rule (Section, 6, Rule 112).
17. Duty of the Judge upon filing of the complaint or information. 1) Issue warrant
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
if he entertains doubt as the existence of probable cause (People vs. Desmund).
18. What is the remedy if the case is dismissed by the Court based on lack of
probable cause? The proper remedy is appeal. The order dismissing the case for
lack of probable cause is a “final order since it disposes of the case, terminates the
proceedings, and leaves the court with further nothing to do with respect to the
case (Cajipe vs. People, April 23, 2014).
19. Arrest without warrant. 1) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense; 2) When
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
committed it; and 3) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final judgment or is
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another (Section 5, Rule 113).
20. When is preliminary investigation required? Except as provided in section 7 of
this Rule, a preliminary investigation is required to be conducted before the filing
of a complaint or information for an offense where the penalty prescribed by law
is at least four (4) years, two (2) months and one (1) day without regard to the fine
(Sec. 1, Rule 112).
21. Objection by the accused to an arrest without a warrant must be made before he
enters his plea, otherwise, the objection is deemed waived (People vs. Vallejo,
Nov. 19, 2003).
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,
April 13, 1998).
23. Posting of bail does not constitute waiver of irregularity of arrest (Sec. 26., Rule
114).
24. Honasan II vs. DOJ Panel, April 13, 2004. The power of the Ombudsman to
investigate offenses involving public officers or employees is not exclusive but is
concurrent with other similarly authorized agencies of the government such as the
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
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
respondent Ombudsman may, in the exercise of its primary jurisdiction take over
at any stage.
XX. BAIL
1. When is bail a matter of right? All persons in custody shall be admitted to bail as
a matter of right, with sufficient sureties, or released on recognizance as prescribed
by law or this Rule (a) before or after conviction by the Metropolitan Trial Court,
Municipal Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the Regional Trial Court of an offense not
punishable by death, reclusion perpetua, or life imprisonment.
2. When bail hearing is discretionary. A hearing of the application for bail is to be
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
the burden of showing that the evidence of guilt is strong. Bail hearing is
mandatory.
3. Where should application for bail be filed after conviction of the RTC? RTC
even if notice of appeal is filed so long as the records are still with the RTC If the
decision of the RTC convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be filed and resolved by
the appellate court.
4. Is the condition that the accused be arraigned first before he can post bail
valid? In Lavides vs. CA, 324 SCRA 321, the Supreme Court held that the grant
of bail should not be conditioned upon prior arraignment of the accused. In cases
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
arraignment.
XXI. ARRIGNMENT
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
consent of the offended party and the prosecutor, may be allowed by the trial court
to plead guilty to a lesser offense which is necessarily included in the offense
charged. After arraignment but before trial, the accused may still be allowed
to plead guilty to said lesser offense after withdrawing his plea of not guilty.
No amendment of the complaint or information is necessary.
2. May it be made after the prosecution rested its case? Yes. It has been held that
it may also be considered during trial proper or even after the prosecution has
finished presenting it evidence and rested its case. It is immaterial that the plea
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,
550 SCRA 233).
3. Modes of discovery in criminal cases. SECTION 10. Production or
Inspection of Material Evidence in Possession of Prosecution. — Upon
motion of the accused showing good cause and with notice to the parties, the court,
in order to prevent surprise, suppression, or alteration, may order the prosecution
to produce and permit the inspection and copying or photographing of any written
statement given by the complainant and other witnesses in any investigation of the
offense conducted by the prosecution or other investigating officers, as well as any
designated documents, papers, books, accounts, letters, photographs, objects, or
tangible things not otherwise privileged, which constitute or contain evidence
material to any matter involved in the case and which are in the possession or under
the control of the prosecution, police, or other law investigating agencies.
4. What are the grounds to suspend the arraignment? (a) The accused appears to
be suffering from an unsound mental condition which effectively renders him
unable to fully understand the charge against him and to plead intelligently thereto.
In such case, the court shall order his mental examination and, if necessary, his
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
Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition
with the reviewing office. (Section 11, Rule 116).
XXII. MOTION TO QUASH
1. Motion to quash is subject to the omnibus motion rule. The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint
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.
2. What are the exceptions? Facts do not constitute an offense? 1) Lack of
jurisdiction over the subject matter; 2) Extinction of criminal liability; 3) Double
jeopardy.
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
offense. This means that another complaint or information may be filed.
4. What are the exemptions? Extinction of criminal liability and double jeopardy.
XXIV. PROVISIONAL DISMISSAL
1. SECTION 8. Provisional Dismissal. — A case shall not be provisionally
dismissed except with the express consent of the accused and with notice to the
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
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)
years, their provisional dismissal shall become permanent two (2) years after
issuance of the order without the case having been revived.
3. Under the Section 14 of A.M. No. 12-11-2-SC (Guidelines for Decongesting
Holding Jails by Enforcing the Rights of Accused Persons to Bail and
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
dismissal.
4. How to discharge a co-accused to become a state witness: The prosecution
shall file a motion; The motion shall be filed before the prosecution rests its case
(Section 17, Rule 119).
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
shall conduct a hearing in support of the discharge (Section 17, Rule 119).
6. Requisites before the accused may be discharge as a state witness: 1) Two or
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
is required to present evidence and the sworn statement of each proposed witness
at the hearing of the discharge.
7. Requisites before the accused may be discharge as a state witness: The trial
court is satisfied that:
(a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
(b) There is no other direct evidence available for the proper prosecution of the offense
committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material
points;
(d) Said accused does not appear to be the most guilty; and
(e) Said accused has not at any time been convicted of any offense involving moral
turpitude.
8. What is the effect of the discharge of the co-accused? RULE 119, SECTION
18. Discharge of Accused Operates as Acquittal. — The order indicated in the
preceding section shall amount to an acquittal of the discharged accused and shall
be a bar to future prosecution for the same offense, unless the accused fails or
refuses to testify against his co-accused in accordance with his sworn statement
constituting the basis for his discharge.
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
action on the ground of insufficiency of evidence (1) on its own initiative after
giving the prosecution the opportunity to be heard (Section 23, Rule 119).
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
that the order of dismissal is not subject to appeal, it may be reviewed thru certiorari
(People vs. Sandiganbayan, August 5, 2015). The order denying the motion for
leave of court to file demurrer to evidence or the demurrer itself shall not be
reviewable by appeal or by certiorari before judgment (Section 23, Rule 119).
XXV. JUDGMENT
1. SECTION 1. Judgment; Definition and Form. — Judgment is the adjudication
by the court that the accused is guilty or not guilty of the offense charged and the
imposition on him of the proper penalty and civil liability, if any. It must be written
in the official language, personally and directly prepared by the judge and signed by
him and shall contain clearly and distinctly a statement of the facts and the law upon
which it is based.
2. Can civil liability be awarded despite acquittal? Yes. In case the judgment is of
acquittal, it shall state whether the evidence of the prosecution absolutely failed to
prove the guilt of the accused or merely failed to prove his guilt beyond reasonable
doubt. In either case, the judgment shall determine if the act or omission from
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
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
shall be convicted of the offense proved which is included in the offense charged,
or of the offense charged which is included in the offense proved (Section 4, Rule
120).
4. When is an offense included or includes in another? An offense charged
necessarily includes the offense proved when some of the essential elements or
ingredients of the former, as alleged in the complaint or information, constitute the
latter. And an offense charged is necessarily included in the offense proved, when
the essential ingredients of the former constitute or form part of those constituting
the latter (Section 5, Rule 120).
5. How is a judgment promulgated? RULE 120, SECTION 6. Promulgation of
Judgment. — The judgment is promulgated by reading it in the presence of the
accused and any judge of the court in which it was rendered. However, if the
conviction is for a light offense, the judgment may be pronounced in the presence
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.
6. How is judgment promulgated in case the accused fails to appear? In case
the accused fails to appear at the scheduled date of promulgation of judgment
despite notice, the promulgation shall be made by recording the judgment in the
criminal docket and serving him a copy thereof at his last known address or thru
his counsel (Section 6. Rule 120).
7. If the judgment is for conviction and the failure of the accused to appear was
without justifiable cause, he shall lose the remedies available in these rules against
the judgment and the court shall order his arrest. Within fifteen (15) days from
promulgation of judgment, however, the accused may surrender and file a motion
for leave of court to avail of these remedies. He shall state the reasons for his
absence at the scheduled promulgation and if he proves that his absence was for a
justifiable cause, he shall be allowed to avail of said remedies within fifteen (15)
days from notice (Section 6. Rule 120).
XXVI. SEARCHES AND SEIZURE
1. Is search warrant a criminal action? It is not. A search warrant is not a criminal
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
personal property. Since it is not a criminal action, it can be prosecuted without the
direct control and participation of the public prosecutor.
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
application, any court within the judicial region where the crime was committed if
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
already been filed, the application shall only be made in the court where the criminal
action is pending. (Section 2, Rule 126).
3. BUT TAKE NOTE: In cases involving heinous crimes, illegal gambling,
dangerous drugs and illegal possession of fire-arms. EJ and Vice-EJS of RTCs
Manila and Quezon City in application filed by PNP, NBI, PAOC-TF, REACT-TF
(A.M. No. 99-20-09-SC, January 25, 2000).
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
determined personally by the judge after examination under oath or affirmation of
the complainant and the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which may be anywhere in the
Philippines (Section 4, Rule 126).
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
other person. 3) In the determination of probable cause, the judge must examine,
under oath, the complainant and such witnesses he may produce. 4) The warrant
issued must particularly describe the place to be searched and the person or things
to be seized.
6. How shall examination by the Judge should be conducted? The judge must,
before issuing the warrant, personally examine in the form of searching questions
and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn
statements, together with the affidavits submitted. (Section 5, Rule 126).
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
acted upon only by the court where the action has been instituted. If no criminal
action has been instituted, the motion may be filed in and resolved by the court that
issued the search warrant. However, if such court failed to resolve the motion and
a criminal case is subsequently filed in another court, the motion shall be resolved
by the latter court. (Section 14, Rule 126).
8. Parameters of search incident to a lawful arrest. Valeroso vs. CA, 598 SCRA
41 – the cabinet is situated in the area different from where the accused was arrested
or temporarily detained. The cabinet is not an area within the immediate reach and
control of the accused. Espano vs. CA, 288 SCRA 558 – Accused was arrested
outside his house. The subsequent search of his house after his arrest is invalid.
XXVII. EVIDENCE
1. Rule 128, Sec. 1. Evidence is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the truth respecting a matter of fact.
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.
2, Rule 128). The rule does not apply to election cases, land registration and
cadastral cases, naturalization and insolvency proceedings, except by analogy
or in a suppletory character and whenever practicable and convenient (Sec. 4, Rule
1).
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
messages, the RTC admitted them in conformity with the Court's earlier Resolution
applying the Rules on Electronic Evidence to criminal actions (A.M. No. 01-7-01-
SC, Re: Expansion of the Coverage of the Rules on Electronic Evidence,
September 24, 2002, which now covers criminal cases).
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
RTC admitted evidence which were not formally offered in evidence in violation
of Sec. 34, Rule 132 of the Rules of Court. According to SC, the rule on formal
offer of evidence is not applicable to petition for naturalization unless applied by
analogy or in a suppletory character and whenever practicable and convenient.
5. Factum probandum vs. factum probans. Factum probandum is the fact or
proposition to be established, while factum probans is the fact or material evidencing
the fact or proposition to be established. The factum probandum is the fact to be
proved; it is the fact which is in issue in a case and to which the evidence is directed.
On the other hand, factum probans is the probative or evidentiary fact tending to
prove the fact in issue.
6. Is admissibility of evidence the same as weight of evidence? No. the
admissibility of evidence should not be equated with the weight of the evidence.
The admissibility of evidence depends on its relevance and competence while the
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
evaluation with the guidelines provided by the rules on evidence (Tating vs.
Marcella, 519 SCRA 79).
7. What is burden of evidence? It is the duty of a party to go forward with evidence
to overthrow the prima facie evidence against him (People vs. CA, February 25,
2015). If the accused admits the killing, the burden of evidence is shifted to the
accused to prove his defenses (Flores vs. People, February 27, 2013).
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
different proceedings. They involve different procedure. Thus, the prosecution is
not precluded from adducing evidence to discharge the burden of proof required
in criminal cases. (Paredes vs. CA, 528 SCRA 577).
9. Judicial Notice, Discretionary. A court may take judicial notice of matters which
are of 1) public knowledge, or 2) are capable of unquestionable
demonstration, or 3) ought to be known to judges because of their judicial
functions. (Sec. 2, Rule 129).
10. There are two (2) civil cases pending between the same parties. One is being
heard by Branch 92. The other one is being heard by Branch 93. Can Branch 92
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.
CA, 277 SCRA 633).
11. Suppose the two cases are pending in the same branch, which is Branch 92,
can the Judge take judicial notice of the other case between the same parties?
ANSWER: Courts are not authorized to take judicial notice of the contents of the
records of other cases, even such cases have been tried or pending in the same court
(LBP vs. Yatco Agricultural Enerprises, Jan. 15, 2014).
12. How can the judge take judicial notice of the case pending in the same
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
number in a pending action and adopted and read into the records of the other
case; When they are requested to form part of the record of the other case
(Tabuena vs. CA, 196 SCRA 650).
13. Judicial admission. Sec. 4, Rules 129. An admission, verbal or written, made by a
party in the course of the proceedings in the same case, does not require proof.
The admission may be contradicted only by showing that it was made through
palpable mistake or that no such admission was made.
14. Admission during pre-trial in criminal case does not result to judicial admission. It
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
be reduced in writing and signed by the accused and counsel, otherwise, they
cannot be used against the accused. The agreements covering the matters referred
to in Section 1 of this Rule shall be approved by the court.
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
the TSN. The lawyer is presumed to have prima facie authority to make relevant
admission by pleadings, by oral or written stipulation which unless withdrawn are
conclusive. (People vs. Hernadez, 206 SCRA 25; Silot vs. Dela Rosa, 543 SCRA
533).
16. How about admission in an amended pleading? Section 8, Rule 10, provides
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
evidence against the pleader. But the admission will be treated as extra-judicial
admission (Torres vs. CA, 131 SCRA 24; Ching vs. CA, 331 SCRA 16).
17. How about admission in a dismissed pleading? It is merely extra-judicial
judicial admission (Servicewide Specialist Inc., vs. CA, 257 SCRA 643).
18. How about admission of a proposed state witness? If the motion to discharge
an accused as a state witness is denied, his sworn statement, submitted to support
the motion, shall be inadmissible in evidence (Sec. 17, Rule 119).
19. What is the effect of judicial admission? Judicial admission are legally binding
on the party making the admission. It is an established principle that judicial
admission cannot be contradicted by the admitter who is the party himself and
binds the person who makes the same, absent any showing that this was made
through palpable mistake, no amount of rationalization can offset it (PCIC vs.
Central Colleges of the Phil. 666 SCRA 540).
20. Links in the Chain of Custody. First, the seizure and marking of the confiscated
drugs recovered from the accused; Second, the turnover of the illegal drug seized
by the apprehending officer to the investigating officer; Third, the turnover by the
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
forensic chemist to the court (People vs. Kamad, 610 SCRA 295).
21. Documentary evidence. Section 2, Rule 130. Documents as evidence consist of
writings or any material containing letters, words, numbers, figures, symbols or
other modes of written expressions offered as proof of their contents.
22. Best Evidence Rule. When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself
(Section 3, Rule 130).
23. Exceptions to best evidence rule. 1) When the original has been lost or
destroyed, or cannot be produced in court, without bad faith on the part of the
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
reasonable notice. 3) When the original consists of numerous accounts or other
documents which cannot be examined in court without great loss of time and the
fact sought to be established from them is only the general result of the whole; and
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).
24. Parol evidence. When the terms of an agreement have been reduced to writing,
it is considered as containing all the terms agreed upon and there can be, between
the parties and their successors in interest, no evidence of such terms other
than the contents of the written agreement. (Sec. 9, Rule 130).
25. Instances where a party may modify, explain or add to the terms of written
agreement. (a) An intrinsic ambiguity, mistake or imperfection in the written
agreement; (b) The failure of the written agreement to express the true intent and
agreement of the parties thereto; (c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement.
26. Disqualification by reason of death or insanity of adverse party. Parties or
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,
or against a person of unsound mind, upon a claim or demand against the estate of
such deceased person or against such person of unsound mind, cannot testify as
to any matter of fact occurring before the death of such deceased person or
before such person became of unsound mind (Section 23, Rule 130).
27. NOTE: This rule “applies only to a civil case or special proceeding over the estate
of the deceased or insane person.”
28. ELEMENTS OF DEAD MAN STATUTE: 1) The suit is upon a claim by the
plaintiff against the estate of a deceased or person of unsound mind. 2) The
defendant in the case is the executor or administrator or representative of the
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
testimony is as to any matter of fact occurring before the death of such deceased
person or before such person became of unsound mind.
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
prosecuted. Thus, if the administrator is the plaintiff, the rule does not apply.
30. Disqualification by Marriage. During their marriage, neither the husband nor
the wife may testify for or against the other without the consent of the affected
spouse, except in a civil case by one against the other, or in a criminal case for a
crime committed by one against the other or the latter's direct descendants or
ascendants (Section 22, Rule 130).
31. Before the marriage of H and W, W witnessed H killing Y. W did not report the
incident to the police. Later, H and W got married. They had falling out.
Consequently, W reported the incident she witnessed when they were still
sweethearts. May the prosecution present W as a witness in a murder case
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
would violate the marital disqualification rule.
32. Supposed W was called to testify after their marriage had been annulled,
would your answer be the same? My answer would not be the same. Since the
marriage is not anymore existing, the marital disqualification rule would not apply.
33. May a spouse testify in a trial where the other spouse is a co-accused? Yes,
except as against her husband (People vs. Quitado, 297 SCRA 1).
34. May a spouse testify in a trial against her estranged husband? Yes. (Alvarez
vs. Ramirez, 473 SCRA 72.).
35. Marital privilege communication. The husband or the wife, during or after the
marriage, cannot be examined without the consent of the other as to any
communication received in confidence by one from the other during the marriage
except in a civil case by one against the other, or in a criminal case for a crime
committed by one against the other or the latter's direct descendants or ascendants.
(Sec. 24(a), Rule 130).
36. ELEMENTS OF MARITAL PRIVILEGE COMMUNICATION. 1) There
must be a valid marriage between the husband and wife. 2) There is a
communication received in confidence by one from the other. 3) The confidential
information was received during marriage.
37. When is information considered confidential? The general rule is that
communications between spouses is presumed confidential unless shown
otherwise. Communications made in the presence of third person are not
confidential unless the third person may be considered as agent of the spouses.
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
the client and his employer, concerning any fact the knowledge of which has been
acquired in such capacity (Sec. 24(b), Rule 130).
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
with the view to professional employment.
40. Does the disqualification apply only to lawyer? NO. The rule also applies to an
attorney's secretary, stenographer, or clerk who received the information in their
capacity as such.
41. Doctor patient privilege. A person authorized to practice medicine, surgery or
obstetrics cannot in a civil case, without the consent of the patient, be examined as
to any advice or treatment given by him or any information which he may have
acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the
reputation of the patient (Sec. 24(c), Rule 130).
42. Confessional box privilege. A minister or priest cannot, without the consent of
the person making the confession, be examined as to any confession made to or
any advice given by him in his professional character in the course of discipline
enjoined by the church to which the minister or priest belongs (Sec. 24(d), Rule
130).
43. Offer of Compromise. In civil cases, an offer of compromise is not an admission
of any liability, and is not admissible in evidence against the offeror. (Sec. 27, Rule
130)
44. In criminal cases, except those involving quasi-offenses (criminal negligence) or
those allowed by law to be compromised, an offer of compromise by the accused
may be received in evidence as an implied admission of guilt.
45. A plea of guilty later withdrawn, or an unaccepted offer of a plea of guilty to a lesser
offense, is not admissible in evidence against the accused who made the plea or
offer.
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
the injury.
47. Two branches of res inter alios acta. First Branch - The rights of a party cannot
be prejudiced by an act, declaration or omission of another (Sec. 28, Rule 130).
Second Branch - The evidence of previous conduct or similar acts at one time is
not admissible to prove that one did or did not do the same at another time (Sec.
34, Rule 130).
48. EXAMPLE OF FIRST BRANCH - If Roberto makes a statement before the
media admitting his participation in the murder of Carla, his statement is admissible
against him under Section 26, Rule 130. If he made a statement implicating Lito
and Carlos is not admissible against Lito and Carlos applying the principle of res
inter alios acta.
49. Is this applicable to judicial admission? No. because res inter alios acta is
applicable only to extra-judicial admission but it does not cover judicial admission
because of the other accused has the opportunity to cross-examine. (Yapyuco vs.
Sandiganbayan, 674 SCRA 420).
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
did or did not do a certain thing at one time is not admissible to prove that he did
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.
57. EXCEPTION TO HEARSAY. RULE 130, SECTION 37. Dying
declaration. — The declaration of a dying person, made under the consciousness
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.
58. EXCEPTION TO HEARSAY. RULE 130, SECTION 42. Part of the res
gestae. — Statements made by a person while a startling occurrence is taking place
or immediately prior or subsequent thereto with respect to the circumstances
thereof, may be given in evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it a legal
significance, may be received as part of the res gestae.
59. EXCEPTION TO HEARSAY. RULE 130, SECTION 43. Entries in the
course of business. — Entries made at, or near the time of the transactions to
which they refer, by a person deceased, or unable to testify, who was in a position
to know the facts therein stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or in the performance of duty
and in the ordinary or regular course of business or duty.
60. EXCEPTION TO HEARSAY. RULE 130, SECTION 38. Declaration
against interest. — The declaration made by a person deceased, or unable to
testify, against the interest of the declarant, if the fact asserted in the declaration
was at the time it was made so far contrary to declarant's own interest, that a
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
in interest and against third persons.
61. EXCEPTION TO HEARSAY. RULE 130, SECTION 39. Act or declaration
about pedigree. — The act or declaration of a person deceased, or unable to
testify, in respect to the pedigree of another person related to him by birth or
marriage, may be received in evidence where it occurred before the controversy,
and the relationship between the two persons is shown by evidence other than such
act or declaration. The word "pedigree" includes relationship, family genealogy,
birth, marriage, death, the dates when and the places where these facts occurred,
and the names of the relatives. It embraces also facts of family history intimately
connected with pedigree.
62. EXCEPTION TO HEARSAY. RULE 130, SECTION 40. Family reputation
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
members, may be received in evidence if the witness testifying thereon be also a
member of the family, either by consanguinity or affinity. Entries in family bibles
or other family books or charts, engravings on rings, family portraits and the like,
may be received as evidence of pedigree.
63. EXCEPTION TO HEARSAY. RULE 130, SECTION 41. Common
reputation. — Common reputation existing previous to the controversy,
respecting facts of public or general interest more than thirty years old, or respecting
marriage or moral character, may be given in evidence. Monuments and inscriptions
in public places may be received as evidence of common reputation.
64. EXCEPTION TO HEARSAY. RULE 130, SECTION 44. Entries in official
records. — Entries in official records made in the performance of his duty by a
public officer of the Philippines, or by a person in the performance of a duty
specially enjoined by law, are prima facie evidence of the facts therein stated.
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