Remedial Law venue is jurisdictional.

Territory is intertwined with jurisdiction, unlike in

civil cases, where parties can agree on venue or it can be subject to
Bar 2011 Notes waiver.

Roland Glenn T. Tuazon

Ateneo de Manila University

TABLE OF CONTENTS:

1. CIVIL PROCEDURE
a. POST-JUDGMENT REMEDIES
b. PROVISIONAL REMEDIES
c. SPECIAL CIVIL ACTIONS
2. CRIMINAL PROCEDURE
3. EVIDENCE
4. SPECIAL PROCEEDINGS
5. ENVIRONMENTAL CASES

PART I: CIVIL PROCEDURE

Jurisdiction

Stuff to take note of in jurisdiction:

 What is the definition of jurisdiction?

 Jurisdiction over the case or the subject matter? (Subject matter
jurisdiction)
 Jurisdiction over the person or the defendant?
 Know the rules on filing fees.

N.B. vis-à-vis for criminal cases:

 Definition – the same, as conferred by law, except you have to add that

1
 Jurisdiction over the offense. This is essentially the same
as jurisdiction over subject matter.
 Jurisdiction over the person. This is jurisdiction over the person of
the accused.
 Filing fees are not necessary.
 What is the definition of jurisdiction?
o The power of the court to hear, try, or decide the case
o As conferred by law
 How will the court know that it has jurisdiction?
o From the allegations of the complaint.
o What if the defense interposes claims or defenses
outside the jurisdiction of the court?
 It does not divest the court of its jurisdiction;
otherwise, jurisdiction will be at the mercy of the
defense.
 Where do you take jurisdiction over the case?
2
o Conferred by law as well.
o Study BP 129, amended by RA 7691.
 Do not assume that RA 7691 tells all. There are other
laws too.
 Distinguish jurisdiction from venue:
o Jurisdiction is the power to hear and decide a case. Venue is
where the action is instituted and tried.
o Venue can be waived; jurisdiction, not.
 Distinguish errors of jurisdiction from errors of judgment:
o When a court takes cognizance of a case over the subject
matter of which it has no jurisdiction, it commits an error of
jurisdiction. It is reviewable by certiorari.
o When a court makes errors in the exercise of such jurisdiction,
it is just an error of judgment, reviewable by appeal.
 What is the jurisdiction of the RTC?
o 1. Right/title/interest over real property, where value is:
Value is > 20K (OMM), > 50K (MM)
 Claim for ejectment due to unpaid rentals of over
400K. Which has jurisdiction?
  MTC. Ejectment is always under MTC, is always for recovery of money.
regardless of the claim over unpaid rentals.
 Recovery of possession, not ejectment. Fair
market value of property is 1.5M. The assessed
value of the property is 80,000. Property is
located in MM. Which has jurisdiction?
 RTC, based on assessed value (not FMV)
which is over 50K. “Recovery of possession”
does not necessarily mean ejectment (ex.
Accion publiciana).
 Value is determined by assessed value if it
involves right, title, or interest
 Ouano case?
 There was discussion whether FMV or
assessed value dictates. Assessed value
wins.
o 2. Amount incapable of pecuniary estimation
 Examples: rescission, reformation of contract, specific
performance
 Is expropriation capable of pecuniary estimation?
 Expropriation is always filed with the RTC.
Though the subject matter is capable of
pecuniary estimation, the action is
exclusively instituted in the RTC.
 What about declaratory relief?
 RTC always has jurisdiction, and the SC
does not except when there is an issue of
constitutionality.
 There is no such thing as determination of
value; just a determination of validity.
 What about support?
 Even if its amount can be determined, the
law confers it to the Family Courts.
 Foreclosure of mortgage?
 Two views: one says that it‟s always with
the RTC, because it only covers the
security of the property. The original action
  The other view is that it must be
governed by the value of the
security.
o 3. Family cases/marriage
 Includes support, annulment, nullity, etc.
o 4. Juvenile/agrarian case
o 5. Other claims, where claim exceeds 300K
(OMM) or 400K (MM)
 The original text gives lower values.
When was it adjusted?
 Original costs took effect March 25,
1994
 1999 – adjusted OMM from 100K to
200K
 2004 – adjusted both MM and
OMM to 400K and 300K
respectively
 Always take note of the word “exceeding”
so the exact amount is for the lower court.
o 6. Probate of will, determination of inheritance – same
 In determining the 300K/400K, can you include damages,
amounts
interest, attorney’s fees, litigation costs, etc?
 Considering that the MTC has jurisdiction over
probate cases, at times, what if the value of the
estate is 100K? Can the probate of a will be
subject to summary procedure?
 No. The rules on summary procedure
explicitly exclude probate proceedings.
 Note that the MTC has a number of procedures.
There are ordinary proceedings and summary
proceedings, and now, small claims.
 So the “not exceeding 100K (OMM) and not
exceeding 200K (MM)” only applies for
summary proceedings. But it explicitly
excluded probate proceedings.
 What is the jurisdiction of the MTC over small
claims?
 Not exceeding 100K.
o 7. Admiralty cases – same amounts
o 8. All cases not within the exclusive jurisdiction of any court,
tribunal, person, or body exercising judicial or quasi-judicial
functions
 o NO. Only limit the amount to the demand or the claim. The  Contract of loan
“totality rule” only covers purely money claims, and does not  Contract for services
include incidental claims.
o But remember that there can be a principal action for
 Contract of sale

damages, in which the amount of damages claimed  Contract of mortgage

determines the amount. This is not covered by RA 7691, this
is covered by 95-9-94.
 Small claims
o What is the amount?
 Not exceeding 100K.
o Is there a distinction between OMM and MM in small
claims?
 No.
o What should be included in the 100K?
 The claim itself.
 Exclusive of damages
 What if the principal action is for damages?
Does not apply. Actions for damages are
not covered by small claims actions,
because these have to be ascertained.
These are not akin to sum-of-money cases.
o Does it cover quasi-delicts?
 Yes. (Covers: fault/negligence, quasi-contract, or
contract)
o What if it arises from commission of an offense?
 Yes – for the civil aspect of such (fault/negligence).
 Just remember that when you file a criminal case, the
civil aspect is likewise filed (unless reserved,
waived, or filed ahead). So it cannot be the subject
of small claims.
 BUT if it is filed ahead or reserved, then it can be the
subject of an action for small claims.
o What, therefore, are the actions covered by small claims?
 A. Money owed under:
 Contract of lease
  B. Damages from:  1. Court may dismiss the small claim
 Fault or negligence  2. Otherwise, it issues summons on the same
 Quasi-contract day directing respondent to submit a verified
response
 Contract
 3. Court also issues a notice to both parties
 C. Enforcement of a barangay amicable settlement directing them to appear for hearing on a specified
o Do you need a lawyer to file the complaint? Do you need to date with warning against unjustified postponement.
prepare a regular complaint?  4. Respondent submits verified response within 10
 No need for a lawyer. There is also a standard form days from receipt of summons, with photocopies
provided. of documents and affidavits of witnesses.
o What must be filed in the MTC to commence the claim?  What if there is no response?
 1. Accomplished and verified Statement of Claim (Form o Court grants the claim.
1-SCC) o But may reduce the amount of
 2. CNFS damages claimed, if excessive.
 3. 2 photocopies of the actionable document o When is a counterclaim allowed – requisites?

 4. Affidavits of witnesses and other evidence  1. It is within the coverage of the small claims court,
exclusive of interests and costs
 Is joinder allowed?
 2. Arises from the same transaction or event as
 Yes, as long as the aggregate amount
plaintiff‟s claim
doesn‟t exceed 100K
o What is the next step?  3. Does not require joinder of third parties
 4. Not subject of another pending action
  What if the defendant fails to raise such regards annulment of judgment of RTC
counterclaim? o Appellate: ordinary appeal (notice of appeal), petition for
review, over quasi-judicial bodies
 It is barred.
o How will you address the problem where the claim is for
sum of money not exceeding 100K, and it is outside MM?
There is an overlap here between summary procedure and
small claims procedure. Which is preferred?
 This is still open for discussion, and is not yet clear.
 Sir suggests that the option is upon the complainant,
since there is concurrent jurisdiction of both small
claims court and court of summary procedure.
o How is the hearing conducted?
 The judge first attempts to arrive at mediation,
conciliation, early neutral evaluation, or any mode of
JDR.
 Failing that, the JDR judge also proceeds to hearing,
which must terminate within 1 day.
 N.B. Sec. 21 of BP 129, as amended, provides that the RTC has
concurrent original jurisdiction for:
o 1. Certiorari, prohibition, mandamus, quo warranto, habeas
corpus, injunction, enforceable within respective regions
o 2. Actions affecting ambassadors, other public ministers, and
consuls
 What is the MTC jurisdiction?
o Just the opposite of everything in RTC
o Then just add ejectment/unlawful detainer
o How do you know whether it’s ejectment/UD or claim over
real property or a title therein?
 If the issue is just possession, it‟s E/UD. If it involves
rights of the parties to the property, then it‟s not.
 What is the jurisdiction of the CA?
o It has both original and appellate jurisdiction.
o Original: habeas corpus, habeas data, certiorari, prohibition,
mandamus, quo warranto, writ of amparo, annulment of
judgment of RTC
 N.B. Its original jurisdiction is exclusive as
 What is the jurisdiction of the SC?
o Also both original and appellate jurisdiction.
 Jurisdiction over the person of the defendant:
o Original: habeas corpus, habeas data, certiorari,
prohibition, mandamus, quo warranto, writ of amparo,
disciplinary actions over PLUS –
 Actions against members of the Bar [concurrent
with IBP];
 actions against ambassadors, public
ministers, consuls, etc.;
 constitutionality of treaties, laws, proclamations, etc.;
 Filing fees:
 declaratory relief only when there is a question
of constitutionality
o Appellate:
 decision of CA, decision of CTA en banc, decision
of SB, decision of RTC on pure questions of law;
 REMEMBER this motherhood statement: the
only
way to go up to the SC is for petition for review
on certiorari (RULE 45). This applies to civil and
criminal cases, except if the penalty in a criminal
case is death, RP, of life imprisonment.
o 1. Voluntary appearance
 By submitting to the jurisdiction of the court; ex.
Appearing in court or filing an answer or filing motion
for extension of time without disputing the court‟s
jurisdiction
o 2. Proper service of summons
 Rule 14
o Rule #1: payment of filing fees is jurisdictional in civil cases
o Rule #2: how does the court determine filing fees?
 You include interest, damages, attorney‟s fees etc.
– pay everything that you allege for court fees
 But for jurisdictional purposes, just the principal claim
o Rule #3:
 Sun Insurance
 Filing fees must be paid within prescriptive period or
reglementary period (for appeals or compulsory
counterclaims), or else it is deemed prescribed
o Rule #4:
 Alday v. FGU Insurance
 Permissive counterclaims require docket fees
 The claim does not arise from the principal
action, but involves the same parties. This
could easily have been filed separately.
 Compulsory counterclaims do not require docket fees
 BUT read Korean Technologies case of 2009 – this
is how you answer the question whether
compulsory counterclaims require filing fees
 From nowhere, this case required that even
compulsory counterclaims have docket fees
paid. Korean Technologies cited Rule 141.
But in practice, based on an SC Resolution,
the collection of filing fees on compulsory
counterclaims is suspended. This has not
been lifted yet.
 Alday: Payment of filing fees for compulsory
counterclaims is not required. But you have
to take note of Korean Technologies now
o Lien on the judgment?
 If there are damages granted to the complainant, but
there has been lack of payment of filing fees. The
payment of docket fees is a lien on the damages.
 Also applies if damages are awarded in the judgment
but not specified in the pleading.
 What if the claim has already ripened upon the
filing of the complaint, but by omission, but you
were not able to allege it. Can this be a basis for a
lien on the judgment?
 Proton Pilipinas v. Banque Nacional
 There was a claim that has ripened but
was not included, and there were interests
that would ripen once the action is pending.
 SC said that a claim ripened during the
pendency of the case, it can be a lien on the
judgment.

But if you did not allege it, the court cannot
grant an award because you did not pay
docket fees.
o What is the rule on deficient or insufficient payment of
filing fees?
 Rivera v. Del Rosario
 You have to pay full filing fees. The deficiency must
not be based on the fault of complainant. But if the
fault lay on the wrong assessment of the clerk of
court, there is a chance to pay the deficiency.
 Jurisdiction is not automatically lost. Clerk of court
makes a deficiency assessment.
 There must be no intention to defraud.
 Planters v. Fertiphil:
o Planters did not pay appellate docket fees. But this was in
1992, prior to the 1997 Rules on Civil Procedure, which began
the requirement of appellate docket fees. The 1997 Rules
must not apply retroactively.
 Thornton:
o Husband filed for habeas corpus in RTC Makati to recover
child from wife
o What are the two kinds of habeas corpus?
 N.B.: there are two kinds of habeas corpus – custody
of minors and regular habeas corpus in the Rules of
Court
o RTC Makati dismissed the case because the child was
allegedly in Basilan.
o What is the effectivity of writs of habeas corpus?
 N.B.: Effectivity of writ issued by regular court only
enforceable in the territorial jurisdiction. But CA and
SC – everywhere.
o Filed with the CA, but was denied because the RTC (Family
Courts) have original jurisdiction over custody of minor Habeas
Corpus cases.
o HELD: Can file with CA. It has jurisdiction. SC has
jurisdiction, too. The CA and SC have concurrent jurisdiction
over habeas corpus cases. o But always remember that when you talk about concurrent
jurisdiction, you still have to follow hierarchy of courts.
 Herrera v. Bollas o 3. NLRC decisions, although by a QJA, are reviewable by
o Ejectment case (1 year period). Filed within the the CA although not under Rule 43, but Rule 65
(GADALEJ).
proper period, but the complaint was amended to
add additional defendants beyond the 1 year period. o 4. OMB decisions – go to the CA, under Rule 43, for
Does the court still have jurisdiction? administrative cases. But if there is GADALAEJ, go to the
SC, under Rule 65.
 HELD: MTC still had jurisdiction for ejectment
(based on original complaint.)  Mijares:
o After the lapse of the year period for ejectment, has
the
claim prescribed?
 No. N.B. One year period is not prescriptive
period.
You just file action pubiciana with the
appropriate court (RTC or MTC, depending on
the assessed value), not the MTC by default (for
ejectment).
 Oca:
o Repetition of Tijam v. Sibonghanoy – estoppel by laches.
After active participation in a case, you cannot question
the court‟s jurisdiction anymore.
o Went up to the SC through Rule 43 (appeal to CA from a
QJA)
o But what is the general rule?
 Question of jurisdiction can be raised even for
the first time on appeal, as long as estoppel by
laches does not apply.
 One cannot question jurisdiction which he
himself invoked. (Ex. obtaining affirmative relief
against the other party and then after failing to
obtain that relief, question the court‟s
jurisdiction)
 Usually decisions of QJA go up to the CA under Rule 43.
What are
the exceptions?
o 1. HLURB decisions, as provided in charter, appealable
to the Office of the President
o 2. CTA decisions, under amended rules, appealable to
the CTA en banc, then SC
o Which court has jurisdiction over enforcement of
foreign judgments?
 RTC, because enforcement of foreign
judgments are incapable of pecuniary
estimation.
 ALWAYS, regardless of amount of judgment,
since it
is not based on the amount of the claim.
 In this type of action, you don‟t need to prove
the facts again, etc.
o Marcos’s group that docket fees must be based on
the
value/amount of the claim, which is up to the
Billions. Is this correct?
 This rule applies to money claims against an
estate, but without judgment yet. Here, there
already was a judgment in DC of Hawaii.
o How do you impugn a judgment?
 Lack of notice
 Lack of jurisdiction
 Collusion
 Fraud
o What is the rule on Arbitral awards?
 These must be should be enforced or recognized
An arbitral award is not a foreign judgment
(Under ADR Rules)
 Zamboanga Barter Goods:
o N.B. Rule 65 is not an appeal. It is a special civil action.
o Being one, RTC, CA, and SC have concurrent
jurisdiction.
When you discuss concurrent jurisdiction, you cannot
avoid discussing hierarchy.
o But when you talk about appeals, no need to
consider hierarchy. The law already makes a decision for
you.
 Can a court lose jurisdiction after acquiring it?
o Generally, no.
o Exceptions:
 1. Subsequent law provides prohibition for
continued exercise of jurisdiction
 2. Law penalizing the act is repealed by a
subsequent law
 3. Accused deprived of constitutional right
  4. Proceedings are terminated, abandoned,  COMELEC:
declared void o When can the SC review COMELEC decisions?
 5. Appeal has been perfected  Only when there is GADALEJ
 6. Curative law o Can the COMELEC issue writs of certiorari,
 What is the principle of exercise of equity jurisdiction? prohibition, or mandamus?
When the court is called upon to decide a particular
situation and release the parties from correlative
obligations, but if it would result in adverse
consequences to the parties and the public, the court
would go beyond its powers to avoid negative
consequences in the release of the parties

Jurisdiction of special bodies and courts

 CHR:
o Can it review court decisions?
 No; separation of powers
o Can it issue injunctions?
 No. Just fact finding and investigative.
 What is the extent of the labor arbiter’s power on claims
for damages by employees?
o Action for damages incident to dismissal is part of LA‟s
powers.
o BUT NOT if the damages are based on quasi-delict not
arising from ER-EE relations.
 What is the remedy for annulment of NHA awards?
o With the Office of the President.
o And then from there, Rule 65.
 What are the cases under HLURB jurisdiction?
o 1. Claims of condo buyers against project owner,
developer, or dealer
o 2. Specific performance of contractual and statutory
obligations filed by condo buyers against same parties
o Does HLURB’s jurisdiction cover actions filed by
the project owner, developer, or dealer?
 No. It‟s always the other way around.
  No.
 What is the jurisdiction of Family Courts?
o 1. Criminal cases where one or more of the accused is
below 18 or one or more of the victims was a minor
o 2. Petition for guardianship, custody of children, habeas
corpus for custody of children
o 3. Adoption of children and revocation
o 4. Annulment, nullity, and actions on status and
property relations of married people
o 5. Support and/or acknowledgement
o 6. Summary judicial proceedings other the FC
o 7. Declaration of status of children (abandoned,
dependent, neglected, etc.) and actions on parental
authority
o 8. Constitution of family home
o 9. Cases against minors under the DDA
o 10. Violation of Child Abuse Act (RA 7610)
o 11. VAWC cases
 What are the provisional remedies the Family Court can issue?
o Restraining order against accused or defendant if
there is finding of abuse
o Temporary custody over children
o Support pendente lite
 What is the Katarungang Pambarangay Law?
o There must be settlement of disputes between
individual residents of the same city or municipality,
through mediation, arbitration, or conciliation, before the
Katarungang Pambarangay. Compliance with this is a
condition precedent to filing a complaint or information
before the fiscal or court.
 What are the cases over which the lupon can take cognizance
of?
o ALL cases between parties residing in the same
municipality or city.
o What is determinative, residence or postal address?
 Residence, which is actual place which one
inhabits.
 Must be more or less permanent, not
merely transient.
 But it need not be domicile or legal
residence; physical presence is controlling.
o X filed a case against Y, who lived in the same
barangay,
and Z, who didn’t. Is barangay conciliation needed?
  No. At least one respondent lived elsewhere.  Where are objections raised?
 What are the exceptions to this rule? o For objections to referral to the lupon, raise before the punong
o [Nature of a party] barangay – else, waived
o 1. One party is the government or o Failure to refer to lupon may be raised as a ground for motion
any subdivision/instrumentality to dismiss – else, waived
o 2. One party is a public officer or employee and the dispute is
re: official functions
o 3. There is no private offended party
o 4. Complaint against juridical
entities o [Nature of complaint]
o 5. Offenses punishable by imprisonment of more than 1 year or
fine exceeding 1000 pesos
o 6. Labor disputes arising from ER-EE
o 7. Disputes arising from CARL
o 8. Action to annul judgment upon compromise
o [City/municipality requirement]
o 9. Dispute is re: real properties in different cities or
municipalities
 Can be waived by the parties by consenting to submit
the case to the lupon first
o 10. Parties reside in barangays of different cities or
municipalities
 Except where the barangays adjoin each other
and the parties consent to submit the case to the
lupon
o [Equity]
o 11. As determined by the President in the interest of justice, or
upon recommendation by the SOJ
o 12. Where urgent legal action is necessary to prevent injustice,
specifically:
 A. criminal case where the accused is under
custody or detention
 B. habeas corpus filed by one illegally detained
 C. actions with provisional remedies
 D. action may be barred by statute of limitations
 What is the procedure before the lupon? 
If it exceeds 6 months, then it can be enforced by
o 1. Pay filing fees and submit complaint action in the MTC.
o 2. Within the next day the lupon summons respondents
o Within what period may the settlement be repudiated?
and complainants for mediation  10 days, on the ground of vitiation of
o 3. Failure of mediation within 15 days from first
consent. Actions
meeting: constitute the pangkat
o 4. Pangkat has 15 days to resolve the dispute from when  What are the kinds of actions?
it convenes, extendible for another 15 days
o Civil
o Who appears before the lupon or pangkat?
 Protection or enforcement of a right, or prevention or
 Just the parties, without counsel or representative,
redress of a wrong
except minors who may be assisted by next of  Two types?
kin who are not lawyers
 What is the form for settlement needed?  Ordinary

o 1. In writing  Special
o 2. In a language known to the parties o Criminal
o 3. Signed by them Once the information is in court, only then does it
o 4. Attested by lupon chairman become a criminal action, that has already been
prosecuted by the State through the prosecutor.
o When may it be executed by the lupon?
o Special proceedings
 Within 6 months from date of settlement.
 Establishes a right, status, or condition
 When is a civil action commenced?  No. Except: if the reliefs sought for are cognizable by
o Upon filing of original complaint in court. different tribunals. An example is an Ejectment suit
cannot include recovery for unpaid telephone, electric,
o For additional defendants later impleaded, on the date of
and water bills, which must be filed in a separate
filing of the later pleading.
action.
 Are civil actions always based on a cause of action?
o No.
 Distinguish ordinary civil action from special civil action?
o There is Cause of Action in ordinary civil action.
o Ex. Special Civil Action – like declaratory relief does not need
cause of action
 Requisites of cause of action?
o 1. Right of one party
o 2. Obligation of the other to respect
o 3. Breach – MOST IMPT!
 Distinguish cause of action from right of action:
o Right of action is the right to commence and prosecute
an action to obtain the relief sought. Elements:
 1. Existence of cause of action
 2. Performance of all conditions precedent to bring
the action
 3. Right to bring an maintain the action must be held
by the person instituting it
 What is the test of sufficiency of a complaint?
o Whether or not, admitting the facts alleged, the court can
render a valid judgment upon the same in accordance with
the prayer in the complaint
o Determined by the facts alleged, not defense alleged
 What is splitting of a cause of action?
o Dividing one cause of action into different parts and making
each part a separate complaint
o Test: how many wrongs or breaches are there?
o Is splitting cause of action a ground for MTD?
 No it is Res Judicata and Litis Pendentia
o Is the rule against splitting of causes of action absolute?
 Can there be joinder of cause of action?
o Yes.
o BUT it is not mandatory.
 Does there have to be just one breach or numerous violations?
o Numerous.
o For every cause of action, there is one breach.
o For as many breaches as there are, there are as many
causes of action.
 If there is a claim for sum of money, and several claims for
damages (moral, exemplary, etc.) – are there multiple causes
of action?
o No. Just one, because claims for damages are incidents of
the one breach (failure to pay).
 There are three promissory notes, with amounts of 50K, 100K,
and 200K, and there is just one loan. There was failure to pay.
How many causes of action do you have?
o Three PNs, three causes of action.
 Can there be joinder of alternative causes of action?
o Yes. Example is shipping of goods. First cause of action
is based on breach of shipping contract. In case it is void,
the alternative is to sue based on quasi-delict.
 If you join cause of action should it arise from the same series of
transactions, or can it be totally unrelated?
o Scenario 1: X versus Y (just two parties). Can join as many
causes of action, even if totally unrelated.
o Scenario 2: X versus ABCD (multiple defendants). Can only
join the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law – Rule 3 Section 6)
o Scenario 3: XYZ against A (multiple plaintiffs). Can only join
the causes of action if it complies with the rule on
PERMISSIVE JOINDER (series of actions arising from the
same facts or law – Rule 3 Section 6)
 Can you join ordinary civil actions with special civil actions?
o No.
 Can you join two special civil actions?
o No. Because they have their own special rules.
 Can you join recovery of sum of money and ejectment?
 o No. Ejectment is summary proceeding, so it has its own rules.  Is misjoinder of cause of action a ground for its dismissal?
 What is the totality rule? o No, it will NOT cause dismissal of the principal action.
o When all of the claims are claims for sums of money, even if  It is severed and these proceed with separately.
one claim falls under the jurisdiction of the MTC but the rest
may fall under the RTC, what controls is the sum of all claims.
o But you cannot do this when not all are for sums of money.
o When does the totality rule apply?
 1. Single plaintiff with multiple causes of action
against the defendant
 2. Multiple plaintiffs with separate causes of action
against the defendant join in a single complaint
o X’s claims against Y are both for claim of ownership for
real property: property 1 is assessed at 49K, and property
2 is assessed at 15K and both are in manila. Can X file in
the RTC?
 No. While the total exceeds the 50K threshold in
Manila, neither property falls within RTC jurisdiction
so the action cannot be filed there.
 There is a sum of money claim and recovery of property in Cavite.
Can you join the action in Cavite?
o Note: sum of money is determined by amount (personal).
Recovery of property is determined by location of the property
(real).
o N.B. as well that venue is not jurisdictional in civil cases, unlike
criminal cases. Note as well that venue is
waivable.
o Answer: Theoretically, you can join. But the other party is
expected to file a motion to dismiss on the ground of improper
venue. FOLLOW THE GENERAL RULE: The higher court
absorbs the claim (RTC > MTC).
 What is the rule on jurisdiction over counterclaims?
o In the RTC, there is no limit to the counterclaim. In the MTC,
the counterclaim is limited to the jurisdiction of the inferior
court.
o What happens to the balance?
 It‟s lost. So it‟s better to file a separate action in this
scenario.
10
  Although there can only be separate proceeding  The relief granted can only be limited to the res
when there is separate filing. because there is no jurisdiction to grant a personal
o The court is not duty-bound to proceed with it, especially judgment
when it appears that it has no jurisdiction.  If the person appears, it becomes an action in
 What is a special civil action? personam. If the person does not, jurisdiction is
limited to the property
o Covered by special rules.
 What are personal and real actions?
 Distinguish actions in rem, actions in personam, and
o 1. Real action is one affecting title to or recovery of possession
actions quasi-in-rem:
or partition, condemnation, or foreclosure of mortgage on real
o Action in rem is one instituted against the whole world. property
o Action in personam is one against a definite defendant. It o 2. Personal action covers all others
is intended to subject the interest of the defendant on a
 Specific performance for delivery of real property is a
property to an obligation or lien.
personal action
o Action quasi-in-rem –
 What are the tests to determine the nature of an action?
 When jurisdiction over the person cannot be o 1. Ultimate objective test –
acquired (usually, non-residents) and instead,
jurisdiction over the res is acquired, although the
 If the ultimate objective is to recover real property, it
is a real action
owner is still named as defendant, unlike true cases
in rem
o 2. Allegations and prayer test –

 Ex. by attaching the property of the

 The allegations of fact and relief prayed for determine
the nature of the action
non- resident

10
 What is a local action? o Natural persons
o One founded on privity of estates only and there is no privity of o Juridical persons
contracts o Those authorized by law
 What is a transitory action?  What is the general rule?
o One founded on privity of contracts between the parties
 Atlantic Erectors:
o Collection for sum of money over construction project over
property. The plaintiff attempted to make an annotation of lis
pendens on the title of the property. HELD: You cannot do
this. This is an action in personam, not in rem, as regards the
property.
o A notice of lis pendens will only lie if it is a right, title, or
interest over real property. Outside of this, you cannot avail of
a notice of lis pendens.
 Diaz:
o Rule 43, up to the CA. Attached duplicate of decision, but not
pleadings. This is enough for CA to give due course to the
petition.
 PDIC:
o The main case is for declaratory relief (SCA). The question is
whether there can be execution of such (yes). There can also
be a counterclaim, even if declaratory relief is an SCA and the
counterclaim is an ordinary action.
 Tolentino v. Natanauan:
o There is no res judicata between recovery of possession
and nullity of deed of sale.
o Requisites of res judicata?
 A) Former judgment final
 B) Court had jurisdiction
 C) judgment on merits
 D) Identity of parties, subject matter, causes of

action Parties

 Who can be parties to an action?

1
 o All those with capacity can be a party.
o For natural persons, that is the age of majority.
 Can a six year old boy be a party?
o Yes, but with assistance of parent, guardian, or guardian-
ad- litem.
o A minor can sue, a minor can be sued if assisted.
 What is the rule on married parties?
o Sue and sued jointly.
o What are the exceptions?
 Judicial separation of property
 Abandonment
 Exclusive property of spouses
 Involving practice of profession
 What if the natural person is incapacitated?
o Can sue and be sued, but must be assisted.
o What if the person becomes incapacitated
(supervening incapacity), will the case be dismissed?
 No. Sec. 18 provides that the court will
provide assistance.
2
 When can we say that a juridical person has capacity?
o Duly incorporated and registered with the SEC.
 [Mild segue into summons] If the defendant is a natural person, how
do you serve summons?
o Priority is personal service. It must be served to the persons,
wherever he may be found. (Ex. The “James Yap” rule – they
tried serving it to him in Araneta)
o If he cannot be found, substituted service to a a) person of
sufficient age and discretion and b) residing therein. Either
residence or office.
 What is “sufficient age and discretion”? Recent
ruling says age of majority.
 Should not be a transient. Must reside therein.
 Can a foreign corporation sue and be sued?
o If it‟s an isolated transaction, a foreign corporation can sue
and be sued.
o If it‟s doing business but not licensed, it CANNOT sue, but can
be sued.
o If it‟s doing business and is licensed, it can sue and be sued.
 Service of summons to a domestic corporation?
 o Rule 14, Sec 11: president, managing partner, general generic term, so it can encompass any party impleaded, if he
manager, corporate secretary, treasurer, in-house counsel will benefit or be injured.
 How do you serve summons to a foreign corporation?  Does this concept of real party in interest apply to all cases?
o Resident agent – one named to receive summons
o Representatives and officers found in the Philippines (if it has a
branch, for instance)
 What is a non-juridical entity? What is the rule? (Ex. Toro Boys)
o No separate juridical existence.
o They can be parties, as defendants, and named as such
(under the name under which they are generally and
commonly known).
o They CANNOT institute an action as a non-juridical entity.
They have to institute it individually.
 How do you serve summons to a non-juridical entity?
o To anyone or person in charge of the office.
 Who are those authorized by law? Give examples.
o Political parties
o Labor unions
o Archdiocese
o Estate
 How do you serve summons?
o Depending on the entity – they have different rules.
 Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
 For public corporations?
o Province – executive head (governor)
o City – city mayor
o Municipality – municipality mayor
 Who is a real party in interest?
o A party who stands to be benefitted or prejudiced by the
judgment.
 Does the concept extend even to defendants and third party
plaintiffs/defendants? What about an intervener?
o The law does not limit it to plaintiffs only – it uses “party” as a
 o No. The concept of real party in interest will only apply
to private suits.
o Does it apply to a taxpayer suit?
 No. Locus standi applies here.
o Does it apply to criminal cases?
 [Not answered, but I think not]
o What is the difference from legal standing/locus standi?
 This is from public suit filed by a private party.
There is a broader policy concern here, even if
there can be benefit or injury as well.
o A Congressman does not believe in the act of the
President, so he questions it as part of his
legislative prerogative. Is he a RPII?
 No. Locus standi applies as well.
 Thus, differentiate RPII from locus standi:
o Locus standi pertains to acts of government. By reason of
this act, you suffered injury.
o You do NOT use legal standing in private suits. Only in
public suits.
 Who is a necessary party?
o A) They are not indispensable, B) but ought to be joined if one
needs complete determination of the case.
 Who is an indispensable party?
o If not impleaded, there can be no final determination.
o N.B. The codal does not use the word “complete.” So they are
compulsorily joined.
 What if there is a suit against joint debtors?
o The other parties not sued are necessary parties.
o Can you sue one of them only?
 Yes. The court can issue a valid judgment,
although not complete.
o Can you then proceed against the other one, though not
impleaded at first?
 Yes.
 What if there is a solidary obligation, not joint? Ex. X and Y
solidarily owe Z PHP 100,000. Z sues.
o Neither necessary nor indispensable.
o Can you sue X only?
 Yes.
 o Can there be judgment? o What is the right of an individual party in interest?
 Yes, because the obligation is joint and  May intervene to protect his individual interest
several (solidary).
o Can you sue Y later on, having recovered from X?
 No, because you recovered already.
o Can you sue at the same time?
 Yes. The case can proceed against either, or both.
 There is an action for recovery of title AND possession. X holds
title; Y has possession of the property. The action is just for
recovery of title. Can you sue X?
o Yes, because X is the proper party.
 Same facts. Can you sue Y for recovery of title, without suing X?
o No. Y is a mere possessor. The court cannot render judgment
without impleading X. X is an indispensable party in this case.
 What is the failure of failure to implead?
o If it is a necessary party, the general rule is that failure to
implead is non-prejudicial. There is no waiver of right to
implead.
 BUT if there is an order to implead by the court and
there is failure to comply, there is a waiver of claim.
o If it is an indispensable party, the court should order that the
indispensable party be impleaded (Domingo).
 If despite this order to implead, the plaintiff did not
comply, the case should be dismissed.
o What if the court did not notice non-joinder, and thus did
not order to implead the indispensable party, and
renders a decision?
 The judgment is null and void.
 What is a class suit?
o One where the subject matter of the controversy is of common
or general interest to many persons so numerous that it is
impracticable to join all as parties
o What is the rule?
 The court will allow a number of them sufficiently
numerous and representative to fully protect the
interests of all to sue or defend on behalf of all
 When is there substitution of parties in a civil case? There
are three.
o 1. Death
 Who should die?
 Any party. The law does not distinguish.
 This is the most common.
o 2. Change of holder of public position (death,
resignation, removal, cease to hold position)
 This is a very limited application, since it just
applies to public officers.
o 3. Transfer of interest
 What are the requisites of substitution by death?
o 1. A party dies
o 2. The pending action is not extinguished by reason of
death (IMPT)
o Why does the law need to say this?
 Because there are actions that are extinguished
by death. Examples are actions that are purely
personal to the party
 Give examples.
 Ex. Contract for Michael Jackson to sing in
a party.
 Ex. Receipt of a widow of support. When
she dies, the support from widower‟s estate
is gone.
 What is the duty of the counsel after death?
o 1. Give notice of death of the party within 30 days.
 When is the 30 day period counted?
 From the FACT of death, and not from the
knowledge thereof.
o 2. Give names and addresses of the legal representatives
 Who should be legal representatives?
 Legal heirs, administrator, or executor
 N.B. The law provides for legal heirs,
because there is procedure to be done
before appointment of administrator or
executor (ex. probate of the will for the
latter).
 o 3. Court orders substitution and for the substitute to appear substitute the new public officer?
 There is action of A and B against C, D, and E. What if E dies? o 1. Give notice to the new public officer
o The counsel of E names a substitute. The court will then act o 2. Opportunity to be heard for the new officer
accordingly.
 Same facts. However, there was no successful substitution (i.e.
the duties were not complied with). What happens?
o There can be a valid judgment, but only against C and D.
o There can be no valid judgment against E.
 Same facts. No substitution of E either. But C and D are
incidentally, heirs of E. Can there be a valid judgment as to C and
D? Is there a need for substitution?
o There is still a need for substitution, even if C and D are
already parties. That C and D are incidentally E‟s heirs as well
does not change the result.
o This is the Brioso case. There is valid judgment only against
C and D. It is wrong to say that C and D automatically
substitute for E. There are other heirs who are affected by this
improper “automatic” substitution.
o What is the effect if E is necessary? If E is indispensable?
 Relate the provisions above. If necessary, you can
subsequently file a suit against E‟s heirs to
complete the judgment. If indispensable, the
judgment is null and void, even against C and D.
 What if no legal representative is named by the counsel for the
deceased party or the one named fails to appear?
o The court may order the other party to procure the appointment
of an executor or administrator for the estate of the deceased.
o The costs for appointment may be recovered by the appointing
party.
 What are the requisites for substitution of public officer?
o 1. Removal/death of public officer and appointment of
successor within 30 days unless otherwise provided
o 2. Successor adopts, continues, or threatens to continue
the action sued against
o 3. There is substantial need to continue the action
 Substitution is not automatic. What are needed to be done to
  Mere fact that he is inclined to continue the action
of the predecessor is not enough
 Give an example of transfer of interest.
o A sues B for judgment for sum of money based on contract.
B assigns the contract to C and C accepts.
o Can the case continue against B despite the transfer
of interest?
 Yes.
o Can the court order that C be impleaded?
 Yes. But there is no substitution here. C is
just joined.
o How then can there be substitution?
 The court has to order a substitution, not mere
 Indigents – Algura v. Local Government of Naga: Resolves the
impleading. BOTTOM LINE: there has to be a
apparent conflict between Rule 3, Sec. 21 and Rule 141, Sec. 19.
court order.
 In case of death of a defendant in a contractual sum of money
case, will there be substitution? (VERY IMPORTANT)
o Section 20. It will NOT go to the heirs, but it will
continue against the estate. (Remember Succession!)
o This is the special rule for contractual sum of money cases.
o Ratio for this?
 Because you ultimately deal with the executor or
administrator anyway.
 But it‟s wrong to say there is substitution, because
the law does not mandate it.
o This position is further supported by Rules 86 and 87.
o What are the requisites for this rule to apply?
 1. The DEFENDANT must die
 2. It must be a sum of money case based on contract
o What if the plaintiff dies?
 The general rule will apply, even if it‟s a sum of
money case.
o If the indigent fits within the parameters set by Rule 141, Sec.
19, then the court must declare him to be an indigent.
 What is the Rule 141 requirement?
 Gross income + family income does not
exceed twice of monthly minimum wage
  And owns real property whose FMV is  Or where the non-resident‟s property may be found
less or equal to PHP 300K  N.B. I suppose this pertains to the two situations,
o If he doesn‟t, he falls under Rule 3, Sec. 21 and must apply for respectively
indigent status. (“Indigency test”) Here, the court exercises
discretion as to whether you are an indigent or not.
o So can a person owning real property with FMV of PHP
300,001 be declared an indigent?
 Yes, but under the indigency test.
 If you are declared an indigent, you do not pay filing fees.
But what happens when there is a judgment?
o There is a lien, as regards filing fees.
 What is the rule on stenographic notes?
o It is free. There is no lien on the judgment.
 What happens when the court finds out you are not an indigent?
o The court can require you to pay.
o What if you refuse to pay?
 The court can order execution.
o What if you fail to pay or ignore the execution?
 The court can dismiss the case, for failure to
comply with an order of the court.
 When does the court in its discretion require the Solicitor General
to be heard in person or through a representative?
o When the action involves validity of a law, treaty, ordinance,
EO, PD, or rules and regulations.

Venue

 What is the appropriate venue for:

o 1. Real actions – where the real property is found
o 2. Personal actions – residence of (principal) plaintiff,
residence of (principal) defendant, or wherever a non-resident
may be found
o 3. Against non-residents and (a) the action affects the personal
status of the plaintiff or (b) any property of the defendant in the
Philippines –
 Residence of plaintiff
 Do not make the mistake of confusing venue and jurisdiction in
civil procedure. Jurisdiction is the power given by law to hear, try,
and decide cases. Knowing what court is one thing, but knowing
where to file it is different.
 There was an agreement to develop a piece of land in Tanay, Rizal
to become a memorial park. The duty of the owner (living in
Quezon City) of the piece of land is to provide property. The
duty of the developer (located in Pasig) is to dig up the land, put
drainages, etc. The owner of the land died, and the heirs are
now substituting for their father. They want to rescind the
agreement to develop. Where do they file?
o There are two steps in venue problems. First, determine: is
it a real action or a personal action?
 It‟s a personal action. It involves rights and
obligations of parties, although the subject matter
involves land.
o Where do you file it?
 At the option of the plaintiffs. Either in their
principal residence (Quezon City) or the defendant‟s
(Pasig)
o Which court has jurisdiction?
 RTC, because it is an action incapable of pecuniary
estimation (rescission)
 Aileen Marcos case:
o In cases where there are several plaintiffs and defendants, the
codal provides the word “principal” before plaintiff and
defendant, so that the plaintiffs will not file the case before
far- flung or inconvenient areas.
o In this case, Aileen Marcos is filing a case to enforce a
trust, and some nominees live in Batac, Ilocos. Marcos
lives in Makati. She filed in Batac.
o HELD: Should have filed in Makati, because she is the
principal plaintiff.
 Where do you file an action for extra-judicial foreclosure?
o Extrajudicial foreclosure of mortgage is NOT a judicial action.
It‟s not covered by the Rules of Court, but Act 2135. For
purposes of EJ foreclosure, it should be filed where the
property is located.
o But the mere filing and payment of fees (for multiple properties
in various areas) can be paid in one office, as long as it can be
 established that it covers all areas. But the actual sale will only o In an ejectment case, the property is located in Cebu.
be done in the place where the properties are located. Plaintiff resides in Makati, defendant in QC. Where do you
 What about judicial foreclosure? file it?
o Rule 68 does not provide for venue for this SCA. But it is filed
where the property is located.
o But if it is for collection of a sum of money, file it as a personal
action.
 Where do you file an action for nullity of marriage?
o RTC where the plaintiff resides, where the defendant resides,
or where their conjugal home is located (special rule in
Family Courts issuance)
 What should be your first consideration? What is the general rule?
o Rule 4 (rules of venue) applies in general, UNLESS a specific
law provides otherwise.
 On specific venues, as provided by law –
o Give an example.
 Actions for Quo warranto – if the Solicitor general
commences it, in can be in the SC, CA, or RTC of
Manila
o What if you want to file an action for perpetuation of
testimony?
 This is covered by Rule 24 (deposition before action
or pending appeal).
 Special rule: Place of residence of any expected
adverse party or defendant
o What about adoption?
 Where the prospective adoptive parents reside
o What about probate?
 Where the deceased last resided at his time of death
o Writ of habeas corpus on residence of minors?
 General rule: RTC where the minor is supposed to be
found
 Thornton: But if unknown or cannot be found, in the
CA or SC
 Can the parties stipulate on venue?
o Yes, they can.
  In the MTC of Cebu. Residence in general does
not matter.
o What if I file it in Makati?
 Yes.
 But what will you expect?
 Motion to dismiss on the ground of
wrong venue, coming from the defendant.
 But what if there was no motion to dismiss, and in
the answer, there was no allegation of
improper venue?
 There is waiver on the rules of venue.
 Remember Rule 9, Section 1. This is the general rule on waivers
and objections on grounds not raised in an answer or MTD. Failure to
raise these grounds in MTD or answer is a waiver. Exceptions:
o 1. Lack of jurisdiction over the subject matter
o 2. Litis pendentia
o 3. Res judicata
o 4. Statute of limitations
 What is the distinction that you have to make as to stipulations?
o If there are no words of exclusivity, then it is only an additional
venue.
o If there are words of exclusivity (ex. “can only be filed in Cebu,
waiving all other venues”), then you can only file it there.
o (PBCom v. Lim is an example of a case with restrictive words)
 In this case, the stipulation on venue in the principal
agreement (PN) applies to the accessory contract,
which is the surety agreement – which cannot exist
without the prior agreement.
 What if there was no Motion to Dismiss and no answer filed?
Apparently, the defendant did not notice the improper venue, or
he decided to waive it. Can the judge later motu propio dismiss
the case after noticing that the venue is wrong?
o No, he cannot motu propio dismiss the case on the ground
of improper venue. (Gumabon)
 Distinguish between wrong venue and lack of jurisdiction (ex. wrongly
filing an ejectment case in the MTC.) Here, while the rules on summary
procedure include MTD as a prohibited pleading, an exception is lack of
jurisdiction (contra. wrong venue).
 What is the local version of forum non conveniens?
 o Prohibited forum shopping (Read Bank of America)  Yes, the court can, if it is convinced at this point in
time.
Summary procedure o Assuming there is no judgment in steps 1 and 2, move to the
next step…
 1. Filing of the complaint
 3. Submission of judicial affidavits or position papers
o In summary procedure, after filing the complaint, what can
the court do?
 A) Dismiss the case outright
 B) Issue summons
o What is the responsive pleading?
 Answer.
 Can you file a MTD?
 In general, no. It is a prohibited pleading.
 When do you file the answer?
 10 days, not the usual 15.
o Can the plaintiff file a reply?
 No. It‟s also a prohibited pleading.
o What if there is no answer?
 The plaintiff can file a motion for the court to render
judgment.
 A motion to declare the defendant in default is a
prohibited pleading. Just ask the court to render
judgment.
o After the filing of the last pleading, move on to next stage.
o N.B. all pleadings (complaint, compulsory counterclaim,
cross- claim, answer) must be verified
 2. Preliminary conference.
o Take note, in SP, it is NOT pre-trial but preliminary conference.
o When does the court set this?
 Within period of 30 days.
o What happens here?
 The parties can compromise, identify issues, etc.
o Can the court render a judgment based on what was
presented in the preliminary conference?
 o Is there a hearing in summary proceeding or trial?  Except lack of jurisdiction over subject matter
 No hearing, no trial.  Or failure to refer to lupon
o Within how many days do you submit affidavits? o 2. Bill of particulars
 Within 10 days from the receipt of the order (record o 3. Reply
of preliminary conference) o 4. Motion to declare in default
o What is required for the affidavits submitted? o 5. Memoranda
 Must be within personal knowledge of affiants; or o [Adding other people]
else, expunge the affidavit and subject the party
or counsel to disciplinary action
o 1. Interventions
o Can the court render judgment? o 2. Third party complaint
 General rule: 30 days from the filing of the last o [Remedial pleadings]
pleading o 1. MR or MNT
 NOT submission for resolution, o 2. Petition for relief from judgment
but submission of the last pleading o 3. Petition for certiorari, mandamus, prohibition against
 Exception: 15 days, if the court asks for further interlocutory orders of the court
clarificatory documents o [Extensions]
 What are the prohibited pleadings? o 1. Dilatory motions for postponement
o [Standard pleadings]  Does this cover motion for cancellation of
o 1. MTD hearing?
  If is not dilatory. But be careful with this, o What happens when the defendant does not appear?
because the judge has to determine first if it  As if he didn‟t file an answer. The court can render
is dilatory. judgment.
o 2. Motion for extension of time
 Jalique v. Dandan:
o This is a case where the respondents filed a joint counter
affidavit in an ejectment case, rather than a response. The
MTC decided in favor of plaintiff. RTC affirmed. CA moved to
have the case remanded to MTC for re-hearing.
o HELD: Valid action by CA. The court interpreted the rules on
summary proceeding liberally here, because there was
presence of a responsive pleading anyway and there was
challenge of the material allegations of fact in the complaint.
So the MTC should have considered it.
 Bonifacio v. Bellosillo
o The judge was sanctioned here, because there was no
answer, and instead of promulgating judgment, he still called
for a preliminary conference.
 Pascual v. Jovellanos
o The defendant filed a Motion to Strike Out instead of an
answer, which was, in reality, a motion to dismiss. The judge
should not have granted this.
 Boy v. CA:
o May the MTC pass upon questions of ownership in an
ejectment case?
 YES, only provisionally and for the purpose of
resolving forcible entry/unlawful detainer cases. This
is a power granted by BP 129.
 Macasaet v. Macasaet:
o In the preliminary conference, representatives appeared on
behalf of the original parties (as attorneys-in-fact). This special
authorization is a valid cause for someone else to appear in
the plaintiff‟s or defendant‟s behalf.
o What happens when the plaintiff is absent in preliminary
conference?
 Case is dismissed
 o What is the stopgap?
 Have an explanation OR send a representative
o Where does this rule come from?
 Provision on authorization does not appear in the
rules on summary procedure. But the SC applied
to Rule 70 suppletorily, the rules of Rule 18 on
pretrial and appearance by representative.
Small claims
 What should a plaintiff file?
o 1. Statement of claim
o 2. Together with certificate of non forum shopping
o 3. Authentic copies of document from which the action
stems from (actionable documents)
 Who signs the statement of claim?
o The claimant. No need for the lawyer.
o [Atty. Salvador: maybe this special rule is for bar flunkers
to practice, because the claimant still needs to file certain
documents he may not know how to execute]
 What happens after?
o Court files notice for defendant to submit response
o Defendant has 10 days to file a response
o What are the formal requirements?
 There is already a form provided for the plaintiff and
defendant to fill in.
 They just need to attach documents.
o Can there be a counterclaim in a small claim action?
 Yes. As long as within jurisdiction of the court, and
arising from the same transaction, and does not
require joinder of third parties.
 And then? [review/cross-check these rules]
o The parties can decide for amicable settlement or judicial
dispute resolution (JDR)
o Can a claimant apply as an indigent litigant?
 Yes. (Aldura)
o Will there be presentation of evidence?
 Yes, but it is not a strict and formal trial. You can only
present the evidence attached to the claims.
 o Is there a preliminary conference? o With particularity
 None mentioned.  As for mistake, how must it be alleged?
o Do the parties have to appear? o With particularity
 Yes, or at least their representatives. Failure for the
plaintiff to appear leads to dismissal without prejudice
of the claim. Failure for the defendant to appear has
the same effect as not filing a response.
 What happens after JDR?
o In a multi-sala court, the executive judge refers to the pairing
judge for hearing and decision within 5 working days from
referral
o In a single sala court: Pairing judge hears and decides the
case in the court of origin within 5 working days from referral
by JDR judge
 Are there prohibited pleadings?
o Same as summary procedure
o Except in MTD, only lack of jurisdiction over the SM is the
exception.
o Why is failure to refer to the lupon not an exception?
 Because the claim is below P100K (no barangay
conciliation required)
 Can it be appealed?
o No. By express provision, it is final and executory.
o What then, is the remedy?
 Rule 65 (petition for certiorari) – because there is no
plain, adequate, speedy remedy

Pleadings

 What must be in the complaint?

o Claims a cause of action
o Must contain allegations – brief and concise statement of
ultimate facts, devoid of evidentiary matters
 You can also allege as to fraud, mistake, malice,
illegality, condition of the mind, etc.
 As to matters of fraud, how must it be alleged?
 If it’s a condition of the mind (malice, intent, knowledge, etc.)?
o Generally
 You can also base your claim on an actionable document. How
to do you allege it?
o 1. You can attach or append the document
 To show the court that this is where your cause
of action arises
o 2. You can reproduce the contents of the document in
the pleading en toto
 (But in practice, just always append anyway)
 How do you deny an allegation under an actionable document?
o Specifically denied, under oath
o What is the exception to the oath requirement?
 1) When the adverse party is not a party to
the instrument
 2) When there is an order for inspection and it
is refused
 What is the effect of failure to specifically deny under oath an
actionable document?
o It is an admission ONLY as to the genuineness and
due execution of the actionable document
 But what about the rights and obligations of the parties arising
from that document?
o It is up to the court to determine it.
 What is the period for a motion to strike out a pleading or a matter
contained therein?
o 1. Before responding to a pleading
o 2. If no responsive pleading is allowed, then within 20 days of
service of that pleading upon him
o 3. Upon court‟s initiative, at any time
o What are the grounds to strike out a matter from a
pleading?
 1. Sham or false
 2. Redundant, immaterial, impertinent
 3. Scandalous
 What is the period to file an answer?
o 15 days after service of summons
o Could it be 30 days after receipt of summons?
  For foreign corporation and service is done to and not the allegation itself (Ex. “I have never
government official designated by law consumed cocaine while on duty” implies the
 What is the period to answer an amended complaint? defendant has consumed cocaine otherwise)
o A. If amended as a matter of right, 15 days from service of
copy of the amended pleading (N.B. not from summons
anymore since the defendant has already been summoned)
o B. If not a matter of right, 10 days from notice of order
admitting it
 N.B. This is not from receipt but notice of admission
because the proposed amended pleading is attached
to the motion to amend the complaint anyway.
 What if there is no new answer filed?
o The prior answer serves as the new answer too if no new one
is filed
 What are the defenses available in answer?
o 1) Affirmative defense
 If you only hypothetically admit, without
raising any defense, what happens?
 In this case, there is no more issue. This will
lead to a judgment on the pleadings (Rule
34)
 This occurs when the answer does not
tender an issue or admits the material
allegations
o 2) Negative defense
 Specific denial of facts alleged essential to the cause
of action.
 What are the kinds of specific denial?
 1) general denial
 2) specific denial
 3) disavowal of knowledge (lack of
knowledge and belief to form a specific
denial)
o What is a negative pregnant?
 A denial which implies its affirmative opposite by
seeming only to deny a qualification of the allegation
20

 Is the counterclaim or cross-claim in a separate pleading?
o No.
 What is a compulsory counterclaim?
o Arises out of the transaction constituting subject matter of
the action and does not require the presence of third
parties of whom the court cannot acquired jurisdiction
 What is a permissive counterclaim?
o Arising from an event unrelated.
 What is the period to answer a counterclaim?
o 10 days
o (In practice, you only answer a permissive counterclaim.
In practice, a compulsory counterclaim is not answered.)
 What is the remedy of the other party if the facts from which
the counterclaim arises from only came about or ripened after
the answer has been filed?
o With leave of court, may be presented as a counterclaim
(or cross-claim) by supplemental pleading before judgment
 What is a cross claim?
20
o Made against a person/party on the same side.
 Can there be a counterclaim defendant cross claim?
o Yes. The counterclaim defendant is the original plaintiff. He
can file a cross claim against a co-party.
 Is there a period to answer a cross claim?
o 10 days
 Do you need leave of court to file a counter or cross claim?
o No, whether it be a permissive/compulsory counterclaim or a
cross claim, no.
 For a third party complaint, do you need leave of court?
o Yes. You cannot just file a third party complaint.
o Who is usually the third party plaintiff?
 The defendant in the main case, who feels that he
should file a complaint against someone that court
has yet to acquire jurisdiction from.
 This is the reason why there is need for leave of
court. You need to have the third party impleaded.
 Why would you want a third party complaint?
 To contribute or indemnify
 o Classic case: car crash a hit b  [Didn‟t answer]
hit  If a lawyer changes his address, what is his duty?
c. C sued B. B sued A for
indemnification. o Inform the court. Failure to do so may lead to disciplinary
action.
 Subrogation
 What are the contents of the verification?
 Any other similar ground
o What is the period to answer a third party complaint?
 15 days, because it is treated as an entirely new
complaint

 Is the reply a mandatory pleading?

o No.
 What is the period to file a reply?
o 10 days.
 What do you do in a reply?
o To controvert the new matters raised in the answer
 What is the effect of failure to file a reply?
o All new matters stated in the answer are deemed controverted
 What happens after answer, etc?
o Pre-trial

 Three important things:

o Signature, verification, and CNFS
 What is the effect of a lawyer affixing his signature in a pleading?
o 1. He has read the pleading
o 2. To the best of his knowledge, the information is correct
o 3. The filing of the same is not for the purposes of delay
 There are some pleadings that are left unsigned. What happens?
o It has no legal effect at all.
o Is there a way to cure it?
 If counsel can show it is due to mere inadvertence
and not for delay
o Will the court just give effect to the pleading or will it still
require actual signing?
1
 o Affidavit stating:
o 1. That the affiant has read the pleading
o 2. The allegations are true and correct based on
personal knowledge or authentic records
 Based on “personal knowledge,” not “information
and belief” or “knowledge, information and belief”
 Must it be under oath?
o Yes.
 Is it mandatory?
o No. Only when the law requires you to verify.
o Give examples:
 Rule 45 (Petition for review on certiorari)
 Rule 65 (Petition for certiorari)
 Rules 57-61 (Provisional remedies)
 Is it jurisdictional?
o No. Failure to attach is not fatal.
o But why do the SC and CA dismiss cases for failure
to attach verification?
 Although it can be cured, the court may dismiss
2
a pleading for failure to comply with procedural
requirements.
 Who signs the verification?
o The party filing the pleading.
 Can the lawyer sign it?
o General rule, no. Unless there is some compelling reason.
o For example, the party‟s father is to be buried on the day of
filing of the petition – the court allowed it.
o Also, the distance of the petition from the counsel (ex. the
petitioner is in the USA and the counsel is in Manila, and there
are only 15 days to file.)
 Can a minor sign?
o Must be assisted.
 Can a married person sign by himself or herself?
o One spouse is enough, but only if there is common interest.
(N.B. but see note below)
 For co-owners or those in the same residence?
o Signature of one is enough if there is common interest. (N.B.
but see note below)
 TAKE NOTE: The key when it comes to multiple parties, all of them o 20. Rule 97 (petition to examine competency of a ward, for
have to sign. However, if there is a common interest among the parties, termination of guardianship)
a signature of a number of them may be enough. o 21. Rule 102 (application for writ of habeas corpus)
o BUT in practice, do not take chances. o 22. Rule 103 (change of name)
 When is a verified pleading/motion needed?
o 1. Rule 24 (depositions pending action/depositions
pending appeal)
o 2. Rule 38 (petition for relief from judgment)
o 3. Rule 42 (petition for review: RTC to CA)
o 4. Rule 43 (appeal from quasi-judicial agency to CA)
 Also: exemption from payment of lawful fees under
Rule 43
o 5. Rule 45 (petition for review on certiorari)
o 6. Rule 47 (annulment of judgment (CA))
o 7. Rule 58 (application for preliminary injunction)
o 8. Rule 59 (application for receivership)
o 9. Rule 61 (application for support pendente lite)
 Also: comment on the application for support
pendente lite
o 10. Rule 64 (review of judgments/final orders of
COMELEC and COA)
o 11. Rule 65 (petition for certiorari, prohibition, or mandamus)
o 12. Rule 66 (quo warranto)
o 13. Rule 67 (expropriation)
o 14. Rule 70 (forcible entry and unlawful detainer)
 N.B. covers all pleadings, including answer,
compulsory counterclaim, and cross-claim
o 15. Rule 71 (petition for indirect contempt)
o 16. ROP of envi cases, Part II: a) civil complaints, b) answer
o 17. ROP of envi cases, Part III: a) petition for writ of kalikasan,
b) return to writ of kalikasan, c) motion for ocular inspection
or production/inspection
o 18. Rule 93 (appointment of guardians)
o 19. Rule 95 (petition of guardian to sell or encumber property
of the ward)
 o 23. Rule 108 (cancellation or correction of entries in
civil registry)
o 24. Habeas data: a) petition for writ, b) written return
by respondent, c) return of service by officer executing
judgment
o 25. Writ of amparo: a) petition, b) written return by
respondent,
c) motion for inspection, d) motion for production, e)
o 26. Rule 126 (Sec. 26: inventory of things seized
under warrant)
 CNFS:
 When is a CNFS required?
o For a complaint or other initiatory pleading
o So a compulsory counterclaim does not require a CNFS
 What about a juridical entity? Who can sign?
o [Anyone, as long as authorized by a board resolution]
 What are the contents of the form?
o 1. Plaintiff/principal party shall certify under oath that he
has not filed a similar complaint involving the same issues
in another court, tribunal, QJ agency
o 2. If there is any other pending claim, provide status
o 3. If he learns about similar action, report fact within 5 days to
the court
 Why does the law require that it is the party that signs?
o Because it is only the party, and not even the lawyer, that
knows whether there is another action.
 For those with no separate juridical existence, who signs?
o All the parties, since there is no juridical personality.
 What is the effect of absence of CNFS? (Note: non-compliance is
different from absence)
o It will be dismissed. It can be re-filed because it is without
prejudice.
 Can it be amended to cure?
o No, the defect cannot be cured by an amendment. Just re-file.
 What is the effect of non-compliance? (Note: this occurs when there
is a CNFS, but you did not respect your commitment under the CNFS)
o 1. Dismissal of the case
o 2. Indirect contempt (Failure to comply with order or process of
court)
 o 3. Administrative and criminal sanctions (since you lied dismissed the initial case. The second case was whether the
under oath) court approved the compromise agreement in the first
 What if there is willful and deliberate forum shopping? place. These are different.
o (Meaning, it‟s not only false, but you also deliberately  Sola
disregard r
it) o No need for a CNFS for a compulsory counterclaim
o 1. Dismiss the case with prejudice  New Sampaguita
 What kind of dismissal? o There was no forum shopping here, because the first case
 Summary dismissal – cannot contest questioned whether there can be a writ of execution when the
o 2. Placed in direct contempt parties agreed to compromise in the first place, when the court
o 3. Administrative sanctions
 BPI v. CA
o There was a CNFS filed in the first place. What was not
attached was the board resolution showing the authority of
the Vice President to sign the CNFS on behalf of the
company. This authorization was submitted on the MR.
o NOTE: There was a valid CNFS. There was liberal
interpretation of this provision for these reasons.
 Donato
o Here, the lawyer signed the verification, not the party. This
was validly excused by the court since the party was in the US,
and could not sign the pleading in time given the 15 day
period. There was physical impossibility.
o BUT as a general rule, the lawyer cannot sign.
 Young v. Seng
o There was no forum shopping, because the first case was
dismissed due to lack of cause of action. When a case is
dismissed because of that, it is without prejudice, and
that party can file the same case again.
o Failure to disclose this fact is not a violation of the CNFS.
 OSM Shipping
o Requires a duplicate original or CTC for the decision being
appealed (here, NLRC decision) and not the prior one (Labor
Arbiter in this case)
 Tan v. Kaakbay
 o Is the rule on personal service mandatory? criminal cases.
 Yes. The rule is priority is by personal service. If  For civil cases, amendment may either be:
you cannot do it by personal service, you can do o 1) As a matter of right
it by registered mail, but you have to make an o 2) With leave of court
explanation.
 When is it a matter right?
o In this case, it was made by registered mail and there was
o Before an answer or within 10 days of service of reply (if the
no explanation. For this reason, the decision of the court to
reply is the one being amended)
allow it was based on its reasonable discretion. BUT this is
not the rule. o What do you need to file?

 Musa  NOTICE to amend

o What are the material dates here?
 Period only commences to run from date of receipt
of the decision
 Date of filing of the MR
 Date of receipt of denial of the
MR Amendments and supplements
 There is amendment for civil cases and there is amendment for
 When do you need leave of court?
o After an answer has been made
o What do you need to file?
 Motion to amend
 For criminal cases, the reference point is not an answer. Instead, it is
plea.
o Before plea, can you amend?
 Yes, whether as to matter of form or substance
 o After plea, can you still amend?  3. Motion to dismiss – the court can either grant,
 Yes, but only as to matters of form, for as long as it deny, or order an amendment
will not prejudice the rights of the accused  There was an amendment of an original complaint, which was the
basis for the issuance of summons. If the original complaint is
 Don‟t forget that last bit!
 What is the test when it will prejudice the rights of
the accused, even if it’s a matter of form?
 If the original defense of the accused will not
change.
 What is “amendment to conform to evidence”?
o This is section 5 of Rule 10
o Allegations are found in the body of the complaint/answer.
What is alleged must be proven.
o If the evidence you presented went beyond the allegations,
you may file a motion to amend the pleading to conform to
evidence
o What if evidence is objected to on the ground that it is not
within the issues in the pleadings?
 1. The court may sustain the objection
 2. The court may allow the pleadings to be amended
if the ends of substantial justice will be served
 There are two kinds of amendments to conform to evidence. What
are these?
o First kind – no objection on the part of the other party. For this
reason, it will be allowed even after judgment.
o Second kind – if the other party objects, the amendment is left
to the sound discretion of the court.
 Can you amend a complaint when it originally has no cause of
action?
o If in the first place there is no cause of action, no amendment
will cure such an absence.
o Can the court order an amendment even if there is no
application to amend?
 1. Yes, if it is a mere formal (typo) amendment
 2. For bill of particulars, the court can either order
compliance OR an amendment
 amended and that is granted by the court, is there a need
for issuance of new summons?
o No, if you already lawfully obtained jurisdiction over the
defendant through summons or voluntary appearance.
o It is a question of jurisdiction over the person, not a question
of amendment.
o HOWEVER, if there are additional defendants, new
summons must be served to them.
 What is a supplemental pleading?
o A pleading filed in addition to a prior one that has been
filed, pursuant to new transactions, occurrences, or events
that have arisen.
o Can there be a supplemental complaint?
 Yes
o Can there be a supplemental answer?
 Yes
o Can there be a supplemental reply?
 Yes
o Can there be a supplemental petition?
 Yes
 So what is the general rule?
o You can file a supplemental pleading as long as there are new
transactions, occurrences, or events that occur after the
filing of the first pleading.
o What is the exception?
 Usually you cannot do this to the Supreme Court,
because you cannot file something to it unless it
asked for it. You would be asked to explain why you
are submitting such.
 What is the difference between amendments and supplements?
o Amendments pertain to events, transactions, or occurrences
that exist during the filing of the original pleading, but were not
placed in the pleading. There was just an omission.
 May be filed without leave of court (before
responsive pleading)
o For supplements, the events, transactions, or occurrence
only arose after the filing of the original pleading.
 Always with leave of court
 What is the period to respond to a supplemental pleading?
 o 10 days from notice of order admitting the o 3. File motion with court, with notice to defending party
supplemental pleading  Upon order of default, what are the options of the court?

Default
o 1. Can render judgment
 No need to present evidence ex parte anymore in this
case.
 N.B. 1: What is the rule on objections?  What are the requisites to declare the other party in default?
o General rule: all objections on grounds not raised in an
o 1. Did not file answer
answer or motion to dismiss are deemed waived.
o 2. There is proof of such failure
o What are the exceptions?
 You have to show the return
 1. Lack of jurisdiction over SM
 2. Res judicata
 3. Litis pendentia
 4. Prescription
o What is the fifth exception provided by jurisprudence?
 5. Lack or absence of cause of action
 This is different from Rule 16 (that the
pleading states no cause of action)
 N.B. 2: What is the rule on failure to allege a counterclaim?
o Any compulsory counterclaim or cross claim not set-up:
barred forever
o In special proceedings – a claim against the estate must
be made in the period provided for in the notice.
Otherwise it will be forever barred. What is the exception?
 If there was a suit started by the estate against you,
the claim can be raised as a counterclaim.
 N.B. 3: How many kinds of default do we have?
o 1. In actions in rem, there is a general order of default.
 There are no defendants, so notice is made to the
public that all oppositors have to come forward
and object. Otherwise, forever barred.
o 2. Failure to attend during pre-trial
 Called “as in default” in the 1964 Rules of Court
 If the defendant fails to attend, the plaintiff can
present evidence ex parte
o 3. Failure to file answer
  What is the extent of relief that can be awarded
by the court?
 Not exceed the kind or amount from
that prayed for
 Cannot award unliquidated damages
 N.B. This is a new provision introduced only in
the 1997 Rules of Civil Procedure. This has not
been asked in the Bar examination yet. So be
careful.
o 2. Can require submission of evidence
 Can delegate this to the clerk of court
 How can you set aside an order of default?
o 1) File a motion on any of these grounds:
 1. Fraud
 2. Accident
 3. Mistake
 4. Excusable negligence
o 2) It has to be under oath
o 3) State that you have a meritorious defense, without
necessarily giving an answer
o What kind of fraud is needed?
 Extrinsic fraud.
o Is the fraud needed here the same fraud needed for motion
for new trial, petition for relief from judgment, and motion
for annulment of judgment?
 YES. For all of these, you need extrinsic fraud.
 How do you set aside an order of “as in default” [or allowance
for plaintiff to present evidence ex parte for the plaintiff]?
o Saguid: Remedy is to file an MR or relief from order of default
also on the ground of FAME
o Do you have to add that you have a meritorious defense?
 No need. You‟re already in pre-trial.
 Can there be partial default?
o Yes.
 o In a case where you file a case against A, B, C, D, and E. E  1. MR or MNT (FAME) within period for filing an
did not file an answer, while A to D did. Will A to D be appeal
allowed to present evidence?  2. Petition for relief from judgment
 Yes.
o Will E be allowed to present evidence?
 No. He is in default.
o Can A to D’s evidence be used against E or in favor of E?
 Yes. In fact, E can still win the case along with
the others.
 Where can there be no order of default?
o 1. Nullification/annulment/legal separation
o 2. Summary Procedure
 N.B. When there is failure to file answer, there can
be judgment rendered by court.
o 3. Certiorari, Prohibition, etc. Some SCAs require
a
comment, so there can be no declaration of default
 Are there SCAs where there can be declaration of
default?
 Yes, like interpleader where the special
rules are deficient so there is suppletory
application of the ROC
 Cerezo v. Tuazon:
o Order of default – failure to submit an answer, so the
defendant is declared in default
o Judgment by default – after the defendant is given notice of the
court processes, the court renders a decision without hearing
defendant‟s defense, which he lost
o Remedy for an order of default?
 Motion to set aside or lift an order of default based on
FAME (under oath, and you have to show you have a
good defense)
 SSS v. Chavez: This must be accompanied by a
verification (under oath), affidavit of merit (that you
have a good defense), and notice of hearing. If this is
missing, the motion is lost.
o Remedy for a judgment by default?
  After the reglementary period for appeal;
i.e. when there is entry of judgment
 Period: 6 months from entry of judgment
AND within 60 days from knowledge
 3. Rule 65 certiorari
 If there is GADALEJ
 Remington Steel:
o When there are multiple defendants, even if one has
already answered, you may amend the complaint as a
matter of right as to the other – since there is no defense
yet that would be affected or altered by the amendment.
 Philippine Export and Foreign Loans:
o When it is a dismissal without prejudice, appeal is not a
remedy. Your remedy is to re-file a case or file for a petition
for certiorari.
o Amendment to conform to evidence – What if it was not
allowed, but the evidence was proven, can there be a
valid judgment based on that evidence?
 Yes. It is valid, even if it is not consistent with
what was alleged.
Bill of particulars
 Can there be Bill of Particulars in criminal cases?
o Yes. Rule 116, Sec. 9.
 Only four things to remember in BOP:
o 1. What is the definition of BOP?
o 2. What is the period to file a BOP?
o 3. What is the action taken by the court in BOP?
o 4. What is the consequence of failure to comply with order to
file a BOP?
 When you file for a BOP, what do you want to achieve?
o A more definite statement of facts that appear in the complaint
that are not averred with sufficient particularity
o You are to identify the defects and the details desired.
 Can you file a motion for BOP after an answer has been filed?
o No more, because issues have already been joined.
 What is the effect of filing a motion for BOP on the period?
 o The period is interrupted upon filing, but you always have at o But there can be service by ordinary mail.
least five days to file the answer after.  What are the requirements for personal and registered mail?
 Deadline to file an answer is in 15 days. You received the o PERSONAL: Stamped, dated, and signed by the clerk of court.
complaint December 1. You filed a motion on December 5. How
many days do you have?
o TW ELVE, no t e le ve n. You don ’t c ou nt the da y c
a us in g the interruption. [VERY IMPT]
o This is the same way you count a motion to dismiss.
 [Same facts] If you filed a motion for bill of particulars on
December 14, the motion is interrupted. How many days do you
have?
o You still have Five days.
 What can the court do?
o 1. Grant motion
o 2. Deny it
o 3. Allow the parties to be heard
 What if the court grants the BOP?
o The party directed to do so must comply within 10 days
 What action can the court take on a BOP if you fail to comply?
o 1. Motion to strike out
o 2. The case can be dismissed (Virata v. SB) – Rule 17, Sec 3:
non-compliance with court order
 What if the person fails to file an answer in the time left?
o Will be declared in

default Filing and service of pleadings

Filing

 What are the modes of filing?

o 1. Personal
o 2. Registered mail
 Can there be filing by ordinary mail?
o None. Because here there is no way the court can find out
when you filed it.
 o REGISTERED MAIL: Pay for registry receipt and you have  If the person to whom you are serving is not available, then how
to accomplish a return card do you file substituted service?
 What is the proof that you personally filed? o Delivery to the clerk of court with proof of failure of both
o 1. Primary: if the pleading is found in the records of the court. personal service and service by mail.
o 2. If it does not appear, you can present the received copy  N.B. This is different from substituted service of
summons, which is to a person of suitable age and
 What is your proof of registered mail filing?
discretion residing in the same residence
o 1. Registry receipt
o There should be proof of both failure of personal service and
o 2. Affidavit of the person mailing service by mail.
o 3. Return card  What is completeness of personal service?
o Actual delivery
Service
 What is completeness of registered mail?
 What are the modes of service? o Actual receipt or 5 days after first notice of postmaster
o 1. Personal o whichever comes first
o 2. Registered mail  What is completeness of ordinary mail?
o 3. Ordinary mail o 10 days after mailing
 What does rule 14 cover?  What are the proofs of personal service?
o 1. Party serving to another party, o 1. Written acknowledgement of the party served
o 2. Party serving to court, o 2. Affidavit of the person serving
o 3. Court serving notices (section 9)
 o 3. Official return of server
 This refers to service by the court
 What are the proofs of registered mail?
o 1. Registry receipt and affidavit of one who mailed
o 2. Return card or unclaimed letter with certified/sworn copy
of notice given by the postmaster to the addresee
 What are the proofs of ordinary mail?
o Affidavit of person serving
 What if I used registered mail, but I got back the return card
ALONG WITH the document itself (showing it is unclaimed). What
do you do to prove delivery?
o You have to file the return card plus the unclaimed
document, plus before you file, secure a certification from the
post office.
 Take note that a return card is required by law to be filed, but in
practice, we do not.
 What is the priority of service?
o Personal service is always preferred
o What is the effect of filing by registered mail?
 Put an explanation why you did not serve it through
personal service
o What if you don’t comply?
 As if the pleading was not filed.
 Service of pleadings should be made to whom?
o To the counsel, if the party is represented by counsel.
 What if service was made to a security guard on the ground floor
of a condominium building and your office is on the 3oth floor?
o You cannot. You have to serve it to counsel.
 What is Lis Pendens?
o In an action involving right, title, or interest over a property, you
annotate it on the title of the property.
 I file a case in the bureau of lands to declare null and void a title.
Can this be subject to a notice of Lis Pendens?
o No. This is a quasi-judicial action. Notice of lis pendens
only
applies to judicial cases, not quasi-judicial. (Heir of Lopez)
 Do you need court approval to effect a notice of Lis Pendens?
o Not at all. Just send a memorandum to the ROD, even
without court involvement.
 When do you need court approval?
o When you intend to cancel the notice.
o Grounds:
 1) purpose is to molest other party
 2) no need for the notice to protect the rights of the
parties who caused it
Summons
 When does the clerk of court issue summons?
o Upon filing of complaint and payment of legal fees by the
plaintiff
o What are the contents?
 1. Name of court and names of parties
 2. Direction to answer within required time
 3. Notice that no answer can lead to judgment by
default
o Who serves?
 Sheriff, deputy, or other proper court officer, or any
suitable person designated by court (for justifiable
reasons)
o What is the return?
 1. When service has been completed, the server
within 5 days serves a copy of the return (personally
or registered mail) to plaintiff‟s counsel, and
 2. Return summons to the clerk with proof of service
 Can personal service and substituted service of summons work
simultaneously?
o No. Personal service first, and this is the priority. You cannot
have these simultaneously.
 Atlantic Erectors: You can only apply for Lis Pendens if the property is
the subject of the action.
o Can you put a notice of lis pendens in a partition case?  Where?
 Yes. o WHEREVER HE IS FOUND. Always remember the
James Yap rule.
 What are the requirements for substituted service? Under what
circumstances?
o Only if personal service is IMPOSSIBLE.
 o Proof of this: defendant cannot be served summons after all jurisprudence that it must be age of majority.
efforts have been exhausted.  Who must it be? Could it be a house helper?
 Is there a set of standards given by law on how o She or he must reside therein. This must concur with “suitable
many times you have to try to serve? age or discretion.” So these are two elements.
 A case says that it must be at least three
times on two different days.
o There has to be an explanation.
o Where will the explanation appear?
 In the sheriff‟s return
o How is substituted service of summons done?
 1. Leaving copies at defendant‟s residence with
person of suitable age and discretion residing therein,
or
 2. Leaving copies at defendant‟s office with
competent person in charge thereof
 Summons must be served within reasonable time. What do you
mean by this?
o For the sheriff, 15-30 days according to jurisprudence.
th
After the 30 day, the court will require the sheriff to
submit the
return.
o Why is this important?
 If you file a complaint and you don‟t see to it that the
summons is served, your complaint can be dismissed
for failure to prosecute.
 What is alias summons?
o If the original summons has been lost or the original summons
was returned to court, unserved.
o Then you can apply for alias summons.
 When do you talk about suitable age or discretion, to what kind of
substituted service does this apply?
o To service at the residence.
 When you talk about suitable age or discretion for
substituted service, what do you mean?
o There is nothing in the law that says there must be age of
majority but from Manotoc to Pascual, there is consistent
 o A visitor or a transient cannot receive summons. But a
house helper can.
 For offices, to whom must it be served?
o To a a) competent person b) in charge.
o Can a middle manager the same rank as Mr. X
receive summons for Mr. X?
 He must be in charge of receiving summons in
the office.
o What does “in charge” mean?
 In charge of the office. President or manager.
 For corporations, what is the special rule?
o President, General Manager, Managing Partner,
Corporate Secretary, Corporate Treasurer, In-house Counsel
o Memorize this. It is a closed list.
 What about foreign corporations doing business?
o 1. Resident agent
o 2. Any officer within Philippines
o 3. Government official designated by law to that effect
 How is service done to entities without juridical personalities
sued under the name by which it is commonly known?
o 1. Serve to any one of them or
o 2. Upon person in charge of office/place of business
o Who is not bound by this, as an exception?
 Person whose connection with the entity has, upon
due notice, been severed prior to the action
 Can you serve summons to a natural person in prison?
o Yes. Serve it to the warden.
 For public corporations?
o RP – Solicitor General
o Province – executive head (governor)
o City – city mayor
o Municipality – municipality mayor
 Can substituted service be served on non-residents?
o No. None as a general rule. You cannot do
substituted service to a non-resident.
o [Sec. 15 does not talk about this situation. Sec. 15 talks about
non-resident and cannot be found.]
o Is there an exception?
  Yes, but it‟s very narrow. But there must a a) resident o N.B. Both must concur. Take note
spouse b) who was previously appointed as attorney- of this.
in-fact.  3. Other modes deemed applicable by the
 In Secs. 14, 15, and 16: how can summons be done? court
o By publication.
 Distinguish.
o Section 14: Defendant is unknown or his whereabouts
are unknown.
 How do you do this?
 Just publish.
 Do you even have to try personal service?
 No need for personal service (since you
don‟t know him or where he is).
 In what kind of case?
 Whatever kind of action, whether in rem or in
personam – you can do it by publication, as
clarified by the SC.
 Not just in rem or quasi in rem anymore.
 How does publication in 14 differ from 15 and 16?
 In 14, ONLY publication is needed. It does
not require service by registered mail in the
last known address.
o Section 15: Defendant that does not reside in the
Philippines and is not found in the Philippines.
 In what subject matter?
 1. Involving personal status of the defendant
 2. Property of non-resident defendant
 3. Property is attached
 4. Where defendant has actual or contingent
interest over property
 What are the modes of service?
 1. Personal service outside the Philippines
 2. Publication AND service by registered
mail in his last known address

30
  How much time does the defendant have
to answer the complaint?
 Reasonable time determined by court,
which must not be less than 60 days from
notice
o Section 16: Temporarily absent from the Philippines
 Can he be a resident of the Philippines?
 Yes. But he‟s just temporarily absent.
 What is the length of time needed here?
 None provided
 How do you do serve summons?
 1. Personal service outside the Philippines
 2. Publication AND service by
registered mail in his last known address
o N.B. Both must concur. Take
note of this.
 3. Other modes deemed applicable by
the court
30
 4. Substituted service, if there is impossibility
and there are earnest efforts to serve.
 What is required for Sections 14, 15, and 16?
o Must ask for leave of court, through motion in writing,
supported by affidavits setting for the grounds, to allow for
such service of summons
o What if the leave is granted?
 Can serve summons through publication, etc.
 Court specifies a reasonable time (not less than 60
days) for defendant to answer
 What is the purpose of summons?
o So the court can peg a date when it acquired jurisdiction over
the person.
 What is the proof of service of summons?
o Sheriff‟s return.
 What is the proof of service by publication?
o 1. Affidavit of printer, foreman, or principal clerk or affidavit of
editor, business or advertising manager, and
o 2. Copy of publication, and
 o 3. Affidavit showing deposit of copy of summons and order for o It seeks relief, but not a pleading.
publication in the post office – directed to be sent by registered o It does not raise a claim, nor does it raise defenses in an
mail to last known address (if applicable) answer.
 What is the rule on voluntary appearance?
o It is not equivalent to summons, but if there is voluntary
appearance, summons can be dispensed with.
 What is the rule on Motions to Dismiss?
o If you file a Motion to Dismiss, even if you join other grounds
other than lack of jurisdiction, you are not deemed to have
submitted to the jurisdiction of the court.
o Old rule: you have to separate the MTD based on lack
of jurisdiction.
 Maximo v. Montalban:
o In this case, his residence is known and he is just
temporarily absent. So substituted service is not proper.
 Samarino v. Ralu:
o Here, the sheriff did not prove that facts and circumstances
that would allow substituted service (repeated failure to
personally serve, etc.) – it must be shown in the sheriff‟s return
 Ancheta:
o There are only a few remedies when the judgment is already
final and executory. Here, the petitioner filed a petition to
annul the judgment based on lack of jurisdiction over the
person (because “lack of jurisdiction” is used, it can cover both
lack of jurisdiction over both SM and the person).
 Gomez v. CA:
o Does it mean that if you are talking about an in rem action you
can venture on trying to serve it personally?
 You can still do personal service, in case you find
him somewhere in the Philippines by chance.
o Section 14 before limits itself to in rem or quasi in rem. It now
extends likewise to actions in personam.

Motions

 What is a motion?

1
 o Does a motion to dismiss take the nature of an answer?  Ex. you file it December 6. The last date you can
 No, because it will not lead to a joinder of issues set the hearing for is December 16.
 What does EVERY motion need to have?
o Understand this along with the three day rule.

o A notice of hearing.
 What is the Omnibus Motion rule?

o Directed to whom?
o Include all grounds available; or else, it is deemed waived.
o What are these exceptions?
 To parties.
 But also give notice to the clerk of court (even if
 1. Lack of subject matter jurisdiction

the provision does not say it), because he  2. Res judicata

schedules the hearings.  3. Litis pendentia
o Absence of a notice of hearing has what effect?  4. Statute of limitations
 The motion becomes a mere scrap of paper.  What is motion day?
 When must notice be given? o Friday afternoon.
o The motion must be filed in court and served to the other o If it is a holiday, set it on the next working day
party at least three days before the date of hearing. o Is this mandatory?
(Three day notice rule)
 Yes. But some judges apply the rule liberally.
 What is the ten day rule?
 But since 2008, this rule has been applied strictly.
o The hearing itself must be scheduled no later than 10
days  What is required for motion for leave to file a pleading or motion?
from the filing of the o Attach the pleading or motion sought to be
motion
admitted Motion to dismiss

2
 What are the kinds of dismissal in Civil Procedure?  4. Identity of parties, SM, cause of action
o 1. There is a motion to dismiss in Rule 16, prompted by o 7. Litis pendentia
defendant. – MOST COMMON  Same as RJ, but without final judgment yet
o 2. But there is also a motion to dismiss in Rule 17, filed by o 8. Prescription
the very same plaintiff who filed. o 9. Failure to comply with condition precedent
 Rule 17 also covers failure to prosecute, which
 Ex. Failure to refer to Katarungang pambarangay
is another form of motion to dismiss.
o 3. Demurrer to evidence
 What are the grounds in Rule 16?
o 1. Lack of J over the SM
 How do you determine subject matter
jurisdiction?
 It is the law that confers the right to hear, try,
and decide a case
 The most common source is RA 7691
amending BP 129
o 2. Lack of J over the defendant
 Look again into proper service of summons
 Or voluntary appearance
o 3. Improper venue
 Fall back to Rule 4, or special rule under law
o 4. No legal capacity to sue
 Minor – age of majority
 Corporation – must be duly registered with SEC
 Attorney in fact – look into scope of authority
o 5. Pleading Asserting the Claim States no COA (PACS-COA)
 Does not go into the falsity or truthfulness of the claim
 The pleading does not appear to state a COA
o 6. Res judicata
 What are the elements?
 1. Final judgment
 2. J over SM and person
 3. Judgment on merits
  Is this waivable?  When can you file a MTD?
o YES. Because it is not o Within the reglementary period. Fifteen days.
jurisdictional.  How do you count a period?
 Ex. Earnest efforts to compromise o Just remember the rule on interruption. [Read up Bill of
 Ex. Exhaustion of administrative remedies Particulars portion – same rule for counting here, including the
 Does this fall under this ground? 5 day buffer]
o Some commentators say yes.  There was MTD filed on basis of lack of J over the defendant. The
But some say failure to exhaust court, instead of dismissing the action, dismissing the MTD, or
must fall under PACS-COA ordering amendment of the complaint, filed alias summons. Is this
o 10. PWEA (Payment, waiver, extinguishment, or grave abuse of discretion?
abandonment) o There was none. Instead of dismissing the case and waiting
o 11. Unenforceable under Statute of Frauds for re-filing, the court issued alias summons which will
produce the same effect.
 Of all these grounds, if the court dismisses, can it be re-filed?
 Preliminary hearing of the affirmative defenses. What is this?
o ALL
o You can file an answer, and the court has discretion to hold
o Except – [F,H,I]
preliminary hearing of your affirmative defenses and use it to
 1. Prescription dismiss the complaint. Thus, an answer can be treated as a
 2. Unenforceable under Statute of Frauds MTD.
 3. Res judicata  This is a new feature of the 1997 Rules of Court. This
 4. Extinguish of claim or demand (PWEA) has never been asked in the Bar.
 o What is the reason for this new rule? dismiss or remand it. There is no hard and fast rule.
 Note: a MTD is not a prohibited pleading, but when it
Dismissal of Actions
issues summons, the court persuades parties not
to file an MTD, but to file an answer with an
affirmative defense.
o Why such court attitude?
 Because issues will be joined, and pre-trial sets
in where parties can compromise.
o What is the difference between filing a MTD and an
answer?
 There is no preliminary hearing of defenses in a MTD.
Obviously, in an MTD, the motion itself will be heard
anyway and that is where the grounds will be
proved. In an answer, the court can prioritize the
grounds to dismiss the case, which is why the
preliminary hearing is needed.
 What actions are available to the court?
o 1. Dismiss action or claim
o 2. Deny the motion
o 3. Order amendment of the pleading
o Can the court defer resolving the motion because the
ground is not indubitable?
 No, it cannot.
 If the court mistakenly denies your MTD, what is your remedy?
o Petition for certiorari on Rule 65 based on GADALEJ.
o Does this petition for certiorari suspend the main
proceedings?
 No. Even if there is a pending petition for certiorari,
the main proceedings will not be suspended
unless you obtain a TRO.
o The Eternal Gardens rule, which has been repeatedly
abused, invoking judicial courtesy here, does not apply
anymore.
o Can the Court of Appeals dismiss the case if it feels
the RTC committed GADALEJ? Or should it only remand?
 The court, subject to its discretion, can either
 What are the ways by which a plaintiff can dismiss a case?
o Filing a notice of dismissal any time before the answer is
served (or before his motion for summary judgment, if
applicable). Dismissal is a matter of right.
o What happens to the counterclaim?
 There is no counterclaim yet, because there is
no answer.
o Can this case be re-filed?
 Yes.
o What is the exception?
 Dismissed a second time under this section.
 What if there is already an answer? – See Pingga case
o File a motion for dismissal.
o What happens to the counterclaim, if there is?
 It does not get dismissed. Pingga limits the
dismissal to the complaint, not the counterclaim.
This abandoned BA Finance rule.
o Does this rule cover both permissive and
compulsory
counterclaim?
 Yes.
o What is the option of the counterclaimant?
 Within 15 days, the party would have to manifest
its willingness to prosecute it in the same action;
otherwise it will be prosecuted in a separate action.
 When is there dismissal due to the fault of the plaintiff?
o 1. Plaintiff fails to appear on the date of presentation of his
evidence in chief without just cause
o 2. Failure to prosecute his action for an unreasonable length of
time
o 3. Failure to comply with the ROC or any order of the court
o How is the dismissal under this section done?
 1. Upon motion of the defendant
 2. Upon court‟s own discretion
o How does this affect counterclaims?
 Same; it can be prosecuted by the defendant in the
same or separate action.
o What is the effect of dismissal under this section?
 It is an adjudication upon the merits (thus with
prejudice)
Pre-trial o The Judge with all “tact, patience, and impartiality,” endeavor
to arrive at a settlement of the dispute
 When is pre-trial conducted?  Confers with each party as to what is acceptable as a
o Rule 18 Sec 1 does not say, it just says that the ex parte compromise at the present stage
motion by the plaintiff to move the case for pre-trial must be
done “promptly”
o BUT the 2004 guidelines say it must be within 5 days after
the last pleading has been filed
 What if the plaintiff fails to move for pre-trial?
o The 1997 rules are silent. Before, dismissal was the
consequence, for failure to comply with Rules of Court. But
this is not the consequence anymore, because of the 2004
rules, which gives a specific outcome.
o 2004 rules: DUTY OF THE CLERK OF COURT to move
for pre-trial.
 Before actual pre-trial, a few days before, what happens?
o Preliminary conference before the clerk of court. It will be
recorded and will form part of the pre-trial record.
o They explore possibility of compromise, etc.
o This is almost like a mini pre-trial.
 Expect two dates in one notice –
o One setting the preliminary conference
o One setting the pre-trial itself
 On the first day of pre-trial – what is the order of the day?
o The court issues an order referring the case to a court-
annexed mediator. Forward the records to him.
o You have to pay fees for a mediator.
o For the time-being, the pre-trial proceedings are suspended.
o What is the period for suspension?
 30-60 days.
 But in the same order, the court will say that if within
this period, there is no compromise, there will be
resumption of pre-trial on a later day.
 What if there is inability to compromise?
o Records returned to court. The court will resume pre-trial.
  Judge talks to parties and their counsel separately
 Judge talks to only parties
 What do you need to submit at pre-trial?
o Pre-trial brief.
o What if you fail to submit a PTB?
 Same effect as if you didn‟t appear at pre-trial.
 Request for admissions: Rule 129 Section 4 – Judicial Notice:
o No need for introduction of evidence
o You want an admission to abbreviate the proceedings
o You are submitting just proposals. If accepted by the
other party, it becomes an admission.
 Issues – to be submitted for resolution
 Documentary and testimonial evidence to be presented:
o “One day examination of witness rule” – if you can direct,
cross, re-direct, and re-cross a witness in one day, do
so. (This is in the guidelines, not in the Rules of Court.)
o Submit the most important evidence first.
o Evidence will be pre-marked.
 What is the effect of failure to pre-mark?
 You can no longer present the evidence if
you failed to pre-mark it.
 Unless the court allows you in the interest
of justice, or if newly discovered.
o What if you fail to name the witness in court?
 You cannot present the witness anymore.
 What are the other contents of the brief that you may put?
o Referral to Commissioners
o Explore possibility of compromise
o Possibility of judgment on pleadings or summary judgment
o Avail of deposition/modes of discovery
 How do you avoid consequences of absence?
o According to the provision, if there is a good excuse for
absence, the consequence will not vest. You can also
authorize someone to appear on your behalf in pre-trial.
 What happens next?
o Pre-trial order is issued by the court.
 DIFFERENCES BETWEEN CRIMINAL AND CIVIL PRE-TRIAL
 o What if it is a criminal case and the prosecution is absent. o A third party takes part in a case between other parties
What happens?
 It will be re-scheduled.
o What if the accused is absent?
 The prosecution CANNOT present evidence ex-parte
because it will violate the accused person‟s right to
confront witnesses.
o RULE 118. TAKE NOTE OF THIS. THIS IS THE
DIFFERENCE BETWEEN CRIMINAL AND CIVIL PRE-TRIAL.
o For an admission of the accused to take effect against
him, what must be done?
 It must be in writing and signed, by both the counsel
and accused.
 No such requirement in civil admissions in pre-trial.
 Judicial Dispute Resolution
o In the past, the JDR process only applies in Makati. Now it
also applies in QC and Manila.
o The judge here is both a mediator and a conciliator and an
independent evaluator.
o Unless the parties consent to continue with the JDR judge, it is
mandatory that there will be a new raffle – and the new judge
who will undergo pre-trial, hear, try, and decide the case is the
trial judge
o This step happens when the Clerk of Court receives the
Mediator’s Report of a “not settled mediation”
o Check http://www.pmc.org.ph/downloads/JDR_Guide.pdf
 To summarize:
o 1. Preliminary conference
o 2. Court-annexed mediation
o 3. Judicial Dispute Resolution
 If QC, Makati, Manila
o 4. Pre-trial

Intervention

 What is the concept of intervention?

 o Because he has a legal interest in the subject matter of
the case or he will be adversely affected by
distribution/disposition of property in custody of the court
 What are the requisites of intervention?
o 1. Either:
 a. Legal interest in the matter in controversy
 b. Legal interest in the success in either of the parties
 c. Legal interest against both
 d. Will be adversely affected by distribution
or disposition of property in the custody of the court
o 2. Intervention will not unduly delay or prejudice the
adjudication of rights of the original parties
o 3. Intervener‟s rights may not be fully protected in a
separate proceeding
 How do you intervene – requisites?
o 1. File a motion to intervene
o 2. Attach the pleading-in-intervention to it
 What are the pleadings in intervention?
 1. Complaint-in-intervention if he
asserts against either or all of the original
parties
 2. Answer-in-intervention if he unites with the
defending party
o 2. Serve to the original parties
 When can you intervene?
o Any time before rendition of judgment in the trial court
o For appellate courts, it is subject to their discretion (because
the ROC is silent)
 After judgment, can there still be intervention?
o As a rule, no.
o But for an indispensable party, the court will allow intervention
even after judgment.
 Nordic:
o There was a mortgage over a vessel to secure a loan. There
was a default in the payment. For this reason, there was an
Extra-judicial foreclosure. While the petition was there, there
was a subsequent case filed.
o There was a complaint filed by the crew members of the
vessel against the vessel in RTC Manila (sum of money case).
 o The mortgagee sought to intervene in the sum of money case, Office of the Prosecutor is a statutory right, not constitutional
because it held a Preferred Ship Mortgage. right. You can altogether dispense with it, or waive it. It is not
o HELD: No legal interest, no cause of action. There must be a essential for due process.
personal cause of action in order to intervene. Here, the
mortgagee had no interest in the sum of money case. And in
this case, the mortgagee can protect its rights in the
foreclosure case.
 What is the remedy if the intervention is denied?
o Aggrieved party must appeal.
o Mandamus will not lie except in case of GADALEJ
 What is the remedy if the intervention is granted?
o Petition for certiorari (since the order is interlocutory, unlike the
dismissal of the complaint/answer-in-intervention, which is
final.

Subpoena

 Types of subpoena?
o 1. Ad testificandum: appear and testify
o 2. Duces tecum: appear and bring with him the documents or
things
 N.B. He must appear too. Cannot just mail or send.
 Who can issue a subpoena?
o 1. Court where witness must attend
o 2. Court where deposition is taken
o 3. Officer/body conducting investigation
o 4. Any justice of CA/SC in any case/investigation pending
o Can the OMB issue a subpoena?
 Yes.
o Can the office of the prosecutor issue?
 Yes.
 Is the receipt of a subpoena by a respondent in a case filed before
the office of the prosecutor necessary for the office to acquire
jurisdiction over the respondent?
o No. It is totally irrelevant. Preliminary investigation before the
 o There is an express provision in Rule 112(D) that says
failure to receive the subpoena will not bar the prosecutor
from issuing a resolution. It is not imperative.
 Can a regular court judge subpoena a convicted person?
o Yes, but the judge examines if it is for a valid purpose
o For those under death/RP/Life and confined: must
be authorized by the SC to appear under subpoena
 Heart of the rule on subpoena is in Section 4 (Quashing a subpoena)
o How do you quash a subpoena ad testificandum?
 1. Witness is not bound thereby
 What is an example of this?
o If the witness is not qualified.
Ex the witness is the spouse of
the person he/she is testifying
against
 2. Witness fees and kilometrage allowed by the
Rules were not tendered

Witness must live within 100 KM of the
place where hearing is conducted
o How do you quash a subpoena duces tecum?
 1. Unreasonable and oppressive
 2. Relevancy of the books, documents, etc. does not
appear
 3. Failure to tender the costs of production
 4. Kilometrage/witness fees
 5. Failure to describe with particularity N.B. not
in the rules
 Can the clerk of court issue a subpoena in the absence of a judicial
action? (Note, this is not referring to investigation by a quasi-
judicial body.)
o No.
 What are the consequences of failure to comply with the
subpoena?
o 1. Arrest
 Witness pays for the costs of arrest if failure is without
just cause
o 2. Contempt, if without just cause
o To whom do these provisions not apply to?
 1. Those who reside beyond 100KM from place where
he is to testify
  2. Detention prisoner where no permission of o What are the exceptions?
court was obtained

Depositions (Rule 23)

 What can be the subject of Modes of Discovery?

o As long as (1) relevant and (2) not privileged, and it must be in
(3) good faith
 What do you mean by relevant?
o “Germane” – need not as strict in definition as what the Rules
of Evidence require
 So “not covered by pleadings” or “not a fact in issue”
is not a defense
 It just needs to have something to do with the case
o Why the wide latitude in taking advantage of Modes of
Discovery?
 So that litigants and lawyers cannot suppress
information, and so that all information needed for a
just decision is on the table
 What is the difference between taking a deposition and using it?
o Taking deposition – the court affords the widest latitude.
o Using deposition – the rules are stricter
 Ex. Witness is dead, abroad, cannot be
summoned, etc.
 What is the difference in the standard of relevance
as regards use, vis-a-vis taking?
 Follow the usual rules of evidence.
o Can a deposition take the place of an actual oral
testimony?
 As a general rule, it cannot. It‟s hearsay. You have
to present the witness in court.
 A deposition is not a substitute for oral testimony.
Oral testimony is required under Rule 132.
 But this pertains to the use of depositions. In taking
them, you have wide latitude. But to use it, you have
to present the actual witness in court still.
  Provided in ROC. Ex. Witness is out of the country,
is dead, resides 100 km away from place of
hearing, cannot be subpoenaed, sick, infirm, etc.
o If you take a deposition, are you compelled to present it in
court
?
 No.
o If you use a part of a deposition, can the rest
be presented?
 Yes.
o If you fail to cross examine the witness in the
deposition, can you still cross-examine him in court?
 Yes, you definitely can! (Sabio)
o Always distinguish between “take” and “use.”
 Are modes discretionary?
o Yes, the court ultimately has discretion
o W hile the parties can resort to it without leave of court ,
the latter still can control how modes of discovery are used
 Ex. Changing from oral deposition to written
interrogatories; deeming something as harassment,
etc.
o Also, if there is no answer yet, there must be leave of court.
o Can the court say “you have enough information
already, don’t resort to modes?
 Yes. It‟s within court discretion.
o What is the rule on SC involvement?
 SC does not get involved with TC decision unless it is
committed with GADALEJ.
 Are modes of discovery cumulative?
o Yes. You can use them one after another, or at the same time.
o But when will the court prevent resort to one mode after
another?
 When you slept on your rights. Example: you could
have filed all at the same time, but you chose not to.
 When can you avail of Modes of Discovery?
o Any time, even during execution
 When do you need leave of court, and when do you not?
o Prior to filing of the answer, you need leave of court. The
issues for contention have not yet been joined. You don‟t
exactly know yet what is germane to the case.
 o After filing of the answer, no need for leave of court.  B) Resides more than 100KM away, except if the party
o Contrast with amendments: You need leave of court after calling that witness procured the party‟s absence // or
answer; before answer, you just need notice. out of the Philippines
 Who can be examined?
o Anyone.
 Who can seek deposition?
o Any party.
 What is the scope of examination?
o Any matter not privileged, even if it is hearsay and may not be
used in court eventually (again, taking is different from use)
o See Sec. 2
 How is information taken?
o Question and answer, like in trials. Direct, cross.
 How is it used in trial (Sec. 4)?
o 1) To impeach or contradict the testimony of the deponent as
witness
 What if you called the witness yourself? Can you
impeach your own witness by presenting the
deposition?
 Yes. Because when you take the deposition,
you are not considered to have made the
deponent your witness.
 Or, if the witness starts becoming hostile,
you can move to have him declared an
adverse witness so you can impeach him.
 Alternatively: just get another witness to contradict the
prior one.
o 2) Can be used by one party against an adverse party
(including responsible officers of corporation as adverse party)
of for any purpose
 WIDEST discretion.
 Can be used to support own evidence, can be used to
impeach, etc.
o 3) Used in place of oral testimony, when:
 A) Witness-deponent is dead
  C) Unable to attend due to age, sickness,
imprisonment, etc.
 D) Unable to compel attendance of the witness
through a subpoena
 E) Exceptional circumstances
 Take note that for this ground, there must
be application and notice to the court,
since it has to decide whether exceptional
circumstances exist.
 What if the witness lives in Rockwell and he is temporarily
assigned to Pangasinan, do you need to summon him to court
or can you depose him?
o Even if he is assigned elsewhere, the term is “RESIDES” so
he must live there. This is the rule that applies if he is still
inside the Philippines, but elsewhere.
o This rule DOES NOT apply if the person is outside the
Philippines. Even if a party is temporarily outside the
Philippines, you can depose him.
o N.B. Take note, however of the rule that absence must not
be procured by the deposing party.
 A party can present a part of a deposition at any time. What is the
right of the other party?
o Right to compel the introduction of the rest of the
deposition relevant to the fact in issue.
 X substituted for Y. X raised the objection that the deposition
cannot be used against her because she said she is a new party
and the deposition cannot be used against her.
o Rule 23, Sec 5 provides that substitution does not affect the
right of depositions previously taken;
o Notice to Y is notice to X. X only stepped into the shoes of Y.
 How do you object when a deposition is being used against you?
o There are actually two stages in objecting to depositions:
 First stage – during taking of the deposition. You can
object to questions as being leading, etc.
 Second stage – time of use. You can object on any
ground that would lead to the exclusion of the
deposition, as if the witness were present.
 Ex. witness is incompetent to testify, is a
minor and has no capacity to perceive, etc.
 o Exactly in which stage of trial do you object to the use of – where a person is appointed commissioner; the deposition is
the deposition? governed by Philippine rules.
At the time it is being offered, as with all kinds of o What is the difference?
evidence  Commissioner has no power to issue compulsive
 Before whom can a deposition be taken? processes like subpoenas. Courts can.
o A. If in Philippines:
 1. Judge
 2. Notary public
 3. Any person agreed upon by the parties, as long as
he can administer oaths
o B. Outside the Philippines:
 1. Embassy, legation, consul, consular agent
 2. Any person
 By commission
 Letters rogatory
 3. Any person agreed upon by the parties, as long as
he can administer oaths
 Who are disqualified to be deposition officers? [Memorize; this has
not yet been asked]
o 1. Sixth degree of consanguinity from party
o 2. Employee or counsel of party
o 3. Sixth degree of consanguinity or employee of party‟s
counsel
o 4. Financially interested in the action
 Can a judge before whom the action is pending take depositions?
o Yes. (Ayala Land)
 Dulay v. Dulay – A brother duped his brother; both are Filipinos. One
brother is a naturalized American, and applied for the latter‟s
naturalization. The US government approved it. The later, once there,
was made the trustee of the deposits of the former. He spent the
money. Filed case in Philippines. Took deposition of bank manager in
US. The local court communicated the request with foreign authority
(letters rogatory – communication by one judicial authority to another
– to follow the rules of the latter). This is distinguished from
commission
 o In this case, the court of Boston ignored the letters rogatory, o What notice is given?
so they applied for deposition before a notary public. The  Actual notice.
local court refused to accept, requiring a consular  Can the other party oppose the taking of a deposition?
certification.
o Yes.
o The court here allowed because the letters were ignored
and there was no consular office in Boston, so they
o Under what grounds?
allowed deposition before NY notary.  “Annoy, embarrass, oppress” memorize
 What is the rule in setting the time/date for deposition? these words
 It is irrelevant
o Reasonable notice is the general rule.
 What is the process to take deposition?
o What is the rule on notice?
o Rule 23, Sections 19-21.
 Give name and address of deponent
o Who does the recording?
 Give time, place, date of deposition
 A stenographer, clerk, secretary – under the direction
o Do you have to say who the deposition officer is?
and supervision of the officer
 No. No need to disclose it. o Then?
o Why is notice to the other party needed?  The deponent examines it and signs it
 Due process. So the other party can  Can signing be waived?
make objections, etc.
 Yes.
o Whose duty is it to give notice to the other party?
o After the signature, what next?
 The party taking the deposition, because in
general, the court does not intervene  The officer certifies it first
  Then files it in court with indication that it is authentic o It can be presented, as long as it was subjected to cross
and complete examination. It is hearsay, but it can be submitted.
o If there are objections, etc, can the officer rule upon them? o Is cross examination a necessity?
 No. He just records the objections.
o There is a notice for oral deposition. If one of the parties
to the deposition cannot attend, and just instead sends a
list of questions, can this be done?
 Yes. But the officer will read the questions verbatim
and record the answers verbatim.
o What if the deponent does not want to answer? (Ex. He
says “no comment.”)
 Generally, if you‟re the officer in a deposition, you
cannot do anything about it.
 EXCEPT: if you are a judge empowered through
letters rogatory
 If the procedure is not followed, what will happen? What is the
consequence?
o A party can file a motion to suppress deposition because the
procedure was not followed
o What is the Ayala doctrine?
 The rules can be relaxed because the deposition was
taken before the judge in the main case. The judge
knows it‟s authentic and complete by personal
knowledge.
 Can a subpoena be issued by reason of deposition-taking to make
sure that the deponent comes?
o Yes. Rule 21, Sec. 5
 What if the one called for the deposition does not show up?
o He will be asked to pay for the costs of the other party/witness
which attended
o [If you ask for a deposition, you can rely on the compulsory
powers of the court (ex. To issue a subpoena) to make sure
witnesses attend, because at least you won‟t be liable if he
fails to show up.]
 Can a deposition of a deceased person be presented in court? Is
this not hearsay?

40
  Yes; necessary to exempt it from the hearsay rule.
 Re: irregularities on taking of deposition. What is the general
rule on errors/irregularities on taking depositions?
o General rule is that it is waivable
o What is the exception?
 Relevance or competency of evidence failure
to object is not a waiver
 Unless a timely objection could have obviated
the defect
 How are written interrogatories different from oral deposition?
o The questions are in written form instead, instead of
personally appearing.
o This is usually the most relied upon form of deposition since
it saves time and costs, and especially if the issue to be
discovered is not very contentious
 When are cross-interrogatories submitted?
o Within 10 days
 Re-direct?
o Within 5 days
40
 Re-cross?
o Within 3 days
 When is the period to object?
o The same as the period to file the responsive pleading.
 Can you take deposition even after pre-trial?
o Yes.
o Do you need to reserve?
 No need, even if you do not reserve it during pre-trial.
(Jonathan Landoil)
 What are the consequences for non-compliance with order for
deposition? Can it be dismissed?
o Yes, the court can dismiss. There can even be a judgment by
default
o However, in the old case of Arellano, the court dismissed the
case due to refusal to be subjected to deposition. But the SC
said it was wrong. In this case though, the matter subject to
deposition is an incidental matter only, not the main issue of
the case.
o Bottom line: it IS a possible result, but fall back on materiality
of the matter
Depositions before action or pending appeal o Cannot be used. Must be the same party, or one represented
during the deposition taking. The general rule should apply.
 If there is no pending case can you take a deposition?
o No. You file a case for the perpetuation of a testimony  When could you apply for deposition pending appeal?
o So you file a case for the purpose of perpetuating a testimony
 What is the special rule on venue here?
o Place where the expected adverse party resides
 Ex. Ms. Bolong and Ms. Tan are fighting over a guy. Ms. Bolong is
expecting that Ms. Tan will file an action against her for malicious
mischief. Mr. Tuazon knows the truth, so Ms. Bolong is going to take
his deposition and file a verified petition in the court of the place where
Ms. Tan resides.
 What are the contents of the petition?
o 1. That the petitioner expects to be a party to an action in a
court in the Philippines but is presently unable to bring it
o 2. Subject matter of expected action and his interest therein
o 3. Facts he wants to establish by the proposed testimony and
reasons for such
o 4. Names/description of expected adverse parties
and addresses if known
o 5. Names and addresses of persons to be examined and
substance of testimony expected
o What is the relief sought?
 Ask for order authorizing petitioner to take
depositions of these persons
 What is the requirement for notice and service?
o Petitioner serves notice upon each expected adverse party
o At least 20 days before hearing, court causes notice to be
served on:
 1. Parties
 2. Prospective deponents
 For which can it be used?
o It can be used in any action involving the same subject matter
 What if it involves the same subject matter but different parties –
but not impleaded?

1
 o Before judgment becomes final
 Where filed?
o In the court where judgment was rendered
o The taking is different from the use, again. So it can be
taken in the RTC but used in the CA.
 There is a pending case for certiorari, can you take a
deposition pending appeal?
o No, certiorari is not an
appeal Interrogatories to parties
 What is the nature of interrogatories to parties?
o Served only by parties to parties
o Generally only one set, unless allowed by court (sec. 4)
 How are interrogatories to parties served?
o Serve on adverse party and file in court
o Serve on party, not on counsel; but counsel may answer
 How are answers served?
o Answers are served on party submitting and filed in court
o Written, subscribed and sworn to under oath
2
o 15 days to file answers
 When must objections be filed?
o Objections must be filed within 10 days
o N.B. Fresh period applies (according to some opinions)
 What objections may be made?
o 1. Irrelevant
o 2. Meant to harass
o 3. Not within knowledge, hearsay
 What is consequence of failure to file written interrogatories to
parties?
o Failure to serve and file can‟t call adverse party as witness
o Party not served with written interrogatories may not be
compelled by the adverse party to give testimony in open court
or to give deposition pending appeal
 What is the scope and use of these interrogatories?
o May relate to any matter under Rule 23 Sec. 2 for same use in
Rule 23 Sec. 4
 What is the effect of failure to answer?
o Case may be dismissed if material
 o Or judgment by default o 2. Or truth of any material and relevant matter
 How do you initiate it?
 Distinguish Rules 23 and 25:
o File it in court and serve it to the other party
o Rule 23 – Party or a witness, or any person for that matter
 When?
o Rule 25 – Interrogatories to PARTIES. Always to parties.
o After issues have been joined
 How must the questions be answered?
 The admission must be directed to whom?
o Rule 23 – there is direct, cross, re-direct, and re-cross
o The adverse party (Not the counsel – it must be served to the
o Rule 25 – Just one set of questions to be answered by the
other party) (Duque)
other party
o But the party‟s counsel may answer (Larada)
 Re: time to answer
 What is the effect of failure to answer or reply to a request for
o Rule 23 – no fixed time to answer, because what dictates the
admission?
period is the officer (since they have to appear before the
officer)
o It is deemed admitted.

o Rule 25 – 15 days from service thereof o Must reply within 15 days.

 Segue: can you call the adverse party to the witness stand?
 What can the party also do in this period?

o YES! In general, YES. The answer is in Rule 132, Sec. 12  Can submit an objection

o It is different if you call on the witness the accused himself (in a  What happens to the period?
criminal case)  It suspends the fifteen days
 What if the objection is denied, what happens to
Request for admission
the period?
 The court sometimes gives extra 10 days, 5
days, etc. So it‟s really within its discretion.
 What is a request for admission? asked that the first party prepare a new list to submit
o 1. Requesting to the other party that he admit the genuineness to the court within X days. Instead of submitting it to
of any material/relevant document court, the first party submitted a request for admission
 What else do you need to do? to the other party. Instead of answering, the second
party kept quiet. HELD: It was an implied admission.
 Attach the document so it can be examined
 Does an admission cover the contents of the
document?
 No, just the genuineness – so you do not
have to prove it exists and it is genuine
 The contents can be up for contentions
 Case: There was a pre-trial. One party submitted a
list of equipment, and wanted the other party to
accept it. The other party said it was incomplete, and
 Who will suffer the cost?
o The other party who refused to admit, if it is eventually
proven to be genuine or true
o But in the meantime, advanced by the party requesting
 What is the effect if you fail to ask the party to admit certain
material facts, which you could have asked and ought to be
within the personal knowledge of the latter?
o You cannot present evidence on such facts.
o This is very important although a lot of judges or litigants fail to
take advantage of this or recognize this.
o But this is still subject to the court‟s discretion.
 What do you attack in requests for admission? Ultimate facts or
evidentiary matters?
o As a matter of advice, attack the evidentiary matters.
o Evidentiary matters are harder to deny (Ex. “Is it true that the
day before you were caught beating the red light and your
license was already confiscated for a prior violation?”)
 There are four ways to respond to respond the request for written o No. Rule 27 is not as free as the other rules – see Solidbank
admission:
o 1. Specifically deny written admissions
o 2. Not do anything
o 3. Admit
o 4. State why he cannot truthfully admit or deny for lack of
knowledge
 N.B. A denial for want of knowledge if the fact is so
plainly and necessarily within the defendant‟s
knowledge, his alleged ignorance or lack of
information will not be considered as a specific denial
 Can you use an admission made in one case for another case?
o No. It can only be used for that case and for that purpose
alone.
o If it’s the same case, but for a different purpose?
 It‟s actually hard to say because admissions are
not stated for a particular purpose.

Atty. Melo: So it‟s safe to say that once admitted,
it usually be used in that same case.
 When an admission is made, is there any way for it to be
retracted?
o The party making the admission can withdraw or amend
o Must have “good reason.” So this is discretionary upon
the court.

Producing or inspection of things/documents

 How do you initiate or start?

o Filing a motion in the court where the case is pending
o Comply with the requisites of motions (so give notice to other
parties)
 What kinds of documents can you produce or inspect?
o Anything that is relevant/material and not
privileged o But you have to show good cause
 “Fishing expeditions” are generally allowed in Modes. Is it the
same for this rule?
  The SC said that the motion to produce must not
permit a “roving inspection of a promiscuous mass
of documents.”
 So the general rule that fishing expeditions are
allowed has less application for this rule.
o Because here: (MEMORIZE)
 1. You need a motion
 2. You need to show good cause
 3. You need to describe the documents with
particularity
 What’s the difference between a subpoena duces tecum and
production of a document?
o 1. SDT: just request for a subpoena to be issued by the
court and the court will issue. POD: you have to name the
documents with more particularity.
 The process to secure the subpoena is a bit
more lenient (as opposed to motion for production,
which is in a motion that must be heard)
o 2. POD: you have to file a motion and provide good cause.
Since this is a mode of discovery, you still don‟t have
particular documents in mind, though you still have to
describe them with some particularity.
o 3. SDT: If the one with custody over the documents is a non-
party, use a subpoena duces
tecum
 What must be the subject?
o Books or things in the custody of the party addressed
o “Possession, control or custody” So if it‟s no longer in
the possession, control, or custody of the party, he or she
may refuse
o “Control” implies that sometimes the person does not
have authority to release/disclose these things or books
 When can it be done?
o There must be a pending case.
 Can it be applied to land or other property?
o Yes, there can be ocular inspection of land or other property.
 What are the tests involved?
o Reasonableness and practicability
 Tanda v. Aldaya:
o Motion to produce must be for inspection, photocopying, etc.
 o The document cannot be left with the court for distraint, as one
party here wanted to leave them with the clerk of court.
 Is production required for presentation of secondary evidence?
o Yes, apart from a mode of discovery, it can be a preparatory
act to present secondary evidence. If you require production
and the other party refuses or says it is lost, then you can
produce secondary evidence.
o But there is need for request to produce
o So if you get a request to produce but it is targeted to a
specific document, most likely it is for secondary evidence
 You applied for production of books/papers/documents, and you
are allowed to examine. Are you bound to present it as your
evidence?
o No, you‟re not required. It is a mode of discovery – a way of
discovering evidence. If you like what you see, you still have
to go through the process of presenting it in court.
 N.B. Under 2004 guidelines, it is the duty of the judge to issue an
order to the parties to avail of Modes of Discovery under Rules 23, 25-
27
Physical and mental examination
 This is so limited in its use that even the „04 guidelines do not include it
 When can you apply for this?
o Mental or physical condition is in controversy
 N.B. This is the only mode of discovery which the court can motu
propio
can issue. The other modes, you have to apply for.
 What is required?
o 1. Also upon motion
o 2. And with good cause shown
 When can it be done?
o When the physical or mental condition of a party is in
controversy
o Ex. Guardianship, Physical Injuries, etc.
 What does “in controversy” mean?
o That examining party can now also ask for previous or
subsequent examination on the same matters of the examined
party
o It must refer to the same condition. So if the examination was
on the other party‟s head for mental examination, she can only
ask for similar reports on the mental condition of that party.
 What if the examined party refuses?
o The court may make an order for delivery of the report
o If there is refusal or failure to do so, and if by chance, that
examined party‟s physicians were allowed to testify, their
testimonies can be excluded.
 What is the effect of the requested party requesting for a copy of
the report made or taking the deposition of the examining
physician?
o He waives any privilege in that action or another action
involving the same controversy, as regards testimony of
other examining persons, whether before or after
o N.B. Privilege of doctor-patient only applies to civil case, not
criminal case
Consequences of non-compliance
o It has to be one of the main issues of the case, not just a side
matter.
 What is the consequence if the copy of the examination is given to
the party examined, upon the latter’s request?
 What if there is refusal to answer questions in oral examination
or interrogatories (Rule 23 or 25)?
o 1. The proponent may pursue other questions
o 2. The examination may be adjourned
o 3. The proponent may request for a court order to compel
an answer
o What if the application for the order is granted?
o What if the application is denied?
 1. The deponent must answer
 What if the deponent still refuses to
answer?
o Indirect contempt
 2. And if there was without substantial justification to
refuse, the court may compel payment of reasonable
expenses to procure the order, including attorney‟s
fees
 1. The deponent need not answer
  2. If the application was without substantial  1. If the denial was with good reasons
justification, the court may require the proponent or  2. The admissions sought were without substantial
counsel or counsel (or both) to pay the deponent importance
reasonable expenses to oppose the application,
including attorney‟s fees
 When is there indirect contempt of court?
o 1. The deponent refuses to be sworn in
o 2. The deponent refuses to comply with court order to
answer a question
 What if a party or officer/managing agent of a party refuses to obey
either: a) order to answer, b) Rule 27 (production/inspection), or c)
Rule 28 (physical/mental examination), what are the court’s
options?
o 1. The matter asked, contents of the paper/property, or
mental/physical condition – deemed established, for purposes
of the action
o 2. Order refusing to oppose claims on that matter, or submit
designated documents/thing, or introducing evidence on
physical/mental condition
o 3. Any of the following:
 Striking out pleadings or some parts thereof
 Staying proceedings
 Dismissal of the action
 Judgment by default
o 4. Arrest of the party/agent of the party
 Exception?
 For Rule 28 (examination of physical/mental
condition)
 What if a party refuses to admit genuineness of a document or
truth of a matter of fact (Rule 26) and then it was found to be
genuine/true?
o The proponent may apply to the court for an order requiring
reimbursement of reasonable fees to procure his proof,
including attorney‟s fees
o When does the court award this?
 Every time, except:
 What if a party/managing agent of a party fails to appear
in deposition or fails to serve answers to written interrogatories?
o On motion and notice, the court may:
 N.B. There must be notice by the party
o 1. Strike out
o 2. Dismiss action
o 3. Enter judgment by default
o 4. Order payment of reasonable fees including attorney‟s fees
 Against whom can there be no order of payment of expenses
and attorney’s fees?
o The Republic
 Can you use modes of discovery in special proceedings?
o Yes.
o Special proceedings do not provide for an answer. But
the general principle of suppletory application (Rule 72, Sec.
2).
 Is there criminal deposition?
o There is a Rule 119. Use it instead of Rule 23. Rule 119
talks about a pending criminal action, but it is no trial yet.
o You can call witnesses even before trial and obtain
their testimony.
o But there is distinction between conditional examination of
witnesses for the prosecution and condition examination for
accused.
 For prosecution – examination before trial can only be
done in the court where the action is pending because
the law wants it to be harder for prosecution.
 For the accused, it should be made before either any
judge, before any member of the Bar (good standing,
etc.), any inferior court designated or appointed by a
superior court.
o But the law does not say it‟s deposition. But it‟s akin to such,
according to a Supreme Court decision.
 Does physical/mental examination as a mode of discovery apply
in criminal trial?
o It‟s
inherent. Trial
 Both civil and criminal procedures will not provide for conduct in o Default
examination of a witness. Where is it found? o Application of indigent
o Rules on Evidence. o “As in” default [did not appear
 What is the order of presentation of evidence? during PT]
o 1. Plaintiff, to support  3. Parties agree in writing
complaint o 2. Defendant,
present defense o 3. Third
party, and so on
o 4. Parties faced with counter or cross claim, present defense
o 5. Rebutting evidence
 Can it be reversed?
o Yes, it can, if there is an affirmative defense.
o Plaintiff in the usual and ordinary course of things presents
before the defendant.
o Can there be reverse order if it is a civil case?
 [Check answer]
 Can there be judgment without trial?
o When parties agree on facts involved in the action
o If the agreement of facts is partial, trial shall be held as to
others
 What are the grounds for cancellation of hearing (actually,
postponement)?
o 1. His presence is indispensable and illness is excusable
 N.B. it does not say the party must be indispensable;
just his presence
o 2. Absence of evidence, and the evidence is material and
cannot be procured despite due diligence
 Who can receive evidence?
o Generally, the judge
o Exception: to the clerk of court – delegated authority to
receive evidence
 1. There are default proceedings
 2. Ex parte
 Examples of ex parte proceedings?
 Can an adoption case proceeding be delegated to the clerk
of court for reception of evidence?
o No.
o Always with the judge
 Can a clerk of court issue a subpoena?
o Yes, if it is a subpoena ad testificandum. If it is a
subpoena duces tecum, there must be order by court.
 Can the clerk of court resolve objections raised in an ex
parte proceeding?
o No.
o Just note the objections, and forward to the judge.
o The other party is not there – who will object?
 Well, the clerk of court just has to note it down
if clearly objectionable.
Trial by commissioner
 Who is a commissioner?
o Person authorized by the court to receive evidence
o Ex. auditor, referee, examiner
 Any matter can be referred to the commissioner, when?
o If the parties consent. ANY MATTER.
 But if the parties do not agree, what can be referred to the
commissioner?
o 1. Requires examination of long account
o 2. Taking of account necessary for court‟s information for
court to render judgment/execute it
o 3. Question of fact arising from motion
 Can a commissioner issue a subpoena?
o Yes.
o Can he issue a subpoena duces tecum?
 Yes, as long as within the order of reference (his
authority)
 What if a witness refuses to obey a subpoena issued by the
commissioner or give evidence before him?
o Deemed a contempt of the court that appointed the
commissioner
 Can he resolve objections?
o Yes.
 o N.B. this distinguishes him from a clerk of court Demurrer to evidence
 When are commissioners mandatory?
 When do you apply for demurrer?
o Expropriation mandatory in second stage
o Partition only optional
 If the parties stipulate how the property will be
partitioned, there is no need to go to the second stage
where commissioners are required
 Report of a commissioner is not a judgment. It only aids the court.
What are the options of the court?
o It may adopt, modify, or reject the report
o What if the parties stipulate that the commissioner’s
findings of fact are final?
 Only questions of law shall be considered thereafter
 What is the rule on objections?
o 10 days from filing of report, parties can object to the
findings of the report
o BUT, must make it before the commissioner during
proceedings, if these can be made by then – otherwise, will not
be considered by the court
 Who shoulders the cost?
o The losing party, in general. But the court may

apportion Consolidation

 When can there be a consolidation?

o When actions involve a common question of law or fact
 What is the difference between consolidation and joinder?
o In consolidation, the cases are already pending; in joinder, the
cases are just being filed
 There was a case where the court allowed for the consolidation of
cases in two different judicial regions – even when it was not even an
issue in the case!
 What are the grounds for separate trials?
o Convenience or avoidance of prejudice – may separate a claim
(ordinary, cross, counter, third-party)
 o In civil, when plaintiff has completed presentation of evidence
o In criminal, when the prosecution rests its case
o When is this exactly?
 After formal offer of evidence
 Do you need leave of court?
o In civil cases, no need for leave of court.
o But if you file leave, is it okay?
 Nothing really wrong, but you‟re just delaying
your case.
o In criminal cases, can you file demurrer without leave of
court
? o
 Yes, but if it is denied, the consequences are serious.
 If there is no leave, and demurrer is denied 
accused waives the right to present evidence
 If there is leave of court, and demurrer is denied 
accused can still present evidence
 What is your remedy of the losing party defendant if the
demurrer is granted? (civil)
o Can still appeal, because demurrer is a final disposition of
a case.
 If your demurrer is denied, what do you do? (civil)
o You can submit evidence, and continue until judgment.
o Can you file for an MR of the denial?
 Yes, you can file. As long as there is an order, you
can file an MR. You can even file it to a judgment,
although it is not a prerequisite for appeal.
o If the MR is denied, what can you do?
 File certiorari
 But in criminal demurrer, can you file for certiorari after denial of
the MR?
You cannot appeal a denial or file for certiorari until final
disposition of the case.
 Dayap: Criminal demurrer. What is the effect of dismissal in a
criminal case?
o It amounts to an acquittal. This is not a dismissal
without prejudice. You cannot re-file.
o But is it reviewable by appeal?
 No. It is an acquittal. Double jeopardy has set in.
o But is it reviewable by another mode?
  Petition for Certiorari (Rule 65)  Can there be partial judgment on the pleadings on this ground?
 Salazar: Demurrer to evidence takes the nature of a motion to dismiss. o No. It‟s ALWAYS a full judgment on the pleadings.
If he files it without leave of court, he waives his right to present
evidence and he submits the case for submission purely on the
evidence presented by prosecution.
o If the demurrer is granted and the accused is acquitted,
can the accused adduce evidence on the civil aspect of
the case?
 Despite the acquittal, the court can still hear the case
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
not exist.
 So if the accused was not able to present evidence in
the civil aspect, it is a void judgment.
 Radio Wealth: Civil demurrer. What is the consequence of a
reversal by the higher court, after the initial granting of a
demurrer?
o The defendant cannot adduce evidence anymore. The court
will render judgment on the available evidence.
o This effect does not apply to criminal cases
 P v. Cachola: N.B. In a bar exam, demurrer was once coined as
“motion to dismiss on the ground of insufficiency of evidence.” This
case used the very same terms.

Judgment on the pleadings

 When is there judgment on the pleadings?

o 1. The answer fails to tender an issue
o 2. Or the answer admits the material allegations of the adverse
party‟s pleading
 What do the “material allegations” mean in the second ground?
o It means the cause of action
o See the next section on Summary Judgment as to what
the difference is with that concept
 Who files a motion for judgment on the pleadings?
o The plaintiff, always
 o N.B. This is different from summary judgment, where there
can be partial or complete summary judgments.
 Can the defendant file a motion for judgment on the pleadings?
o Based on a counterclaim.
 If you’re the plaintiff, when can you file a motion for judgment
on the pleadings?
o After the defendant files an answer.
o Can it be during pre-trial?
 Yes under Rule 18, Section 2g.
 But as a rule of strategy, file it upon first chance to
do so.
o Can you file a motion for judgment on the pleadings
after
pre-trial?
 Yes. But this is really belated.
 If you’re the defendant, when can you file?
o Anytime. (Note: this is on a counterclaim, so it doesn‟t kill
the general rule that only the plaintiff can file this motion)
 Can the court motu propio render a judgment on the
pleadings without motion of the parties?
o No. It must always be upon application.
o Very important: But during pre-trial, the judge may prompt the
parties during pre-trial to have judgment on the pleadings (Rule
18). But it‟s still, ultimately with the parties‟ consent. So in the
end, the judge still cannot grant it on his own.
 What are the effects of motion for judgment on the pleadings?
o 1. The movant admits all of the material allegations of the other
party and rests his motion for judgment on those.
o 2, Movant waives or renounces claims for damages
because allegations as to amount of damages are not deemed
admitted if not specifically denied.
 What is the requirement for notice of hearing?
o 3-day notice of hearing (general rule on motions)
o N.B. in summary judgment, the opposing party is given 10
days notice
 What is the remedy against judgment on the pleadings?
o Rule 45 certiorari, because a judgment on the pleadings does
not raise questions of fact, as the judgment is based on
pleadings alone and the judgment is final
Summary judgment the answer does not tender an issue, or it admits the material
allegations on the claim. There is no dispute.
 What is summary judgment?  Promissory note with no date when it is due and demandable. X
o There is no genuine issue as to a material fact . Memorize owes Y 500K. Y sues X. X claims “it’s not yet due!” Is this
this phrase.
o When is there “no genuine issue”?
 When the issue does not require presentation of
evidence for its resolution, and was just set up as
sham, fictitious, contrived, set-up in bad faith, or is
unsusstantial
 What is the difference between this and “the answer does not
tender an issue”?
o There is no issue as to a material fact (note: not on the issues)
 But can you have a summary judgment based on a tort?
o No. Because damages here are unliquidated, and the court
has to hear the case.
 When can there be summary judgment?
o Declaratory relief
o Liquidated sum of money or action to recover a debt
 The court could rely on documents, papers, affidavits, depositions.
o Ex. X wants to make it appear that he does not owe Y
anything, but there is a document where he admits the
obligation. Y must file motion for summary judgment and
attach the document.
o N.B. these attachments must be sworn or certified copies
o What must the affiant show?
 The he is competent to the matters stated therein,
 that the facts are the admissible in evidence,
 and it is based on personal knowledge
 What is the requirement for the motion and hearing?
o Written motion at least 10 days before it is heard
o When can the opposing party serve opposing affidavits?
 At least 3 days before the hearing
 Wood Tech v. Equitable: Gives distinction of JOP and SJ. On SJ,
there could be an issue, but it is ostensibly sham or fictitious. In JOP,
 something that would lead to summary judgment or judgment
on the pleadings?
o Summary judgment; although there appears to be an issue
(X made an issue out of nothing). It is ostensible, but it‟s
actually sham or fictitious.
o Cannot lead to judgment on the pleadings, because there
was no admission of material claims.
 What is the remedy of the aggrieved party against a
summary judgment?
o Appeal
o Except if there is already a writ of execution, then
certiorari might be more applicable (because there is no
plain, speedy, available remedy)
Judgments
 Can the court change its judgment?
o Before it becomes final (ex. appeal period), it can as a
matter of right.
o Once it becomes final, only clerical errors can be corrected.
 What is immutability of judgments?
o General rule: judgments are immutable; they cannot be
modified once final and executory
 When is the judgment considered promulgated or rendered?
o Filing with the Clerk of court, not mere signing
 What are the exceptions?
o 1. Nunc pro tunc 
 antedated judgment, when delay or error is due to the
court‟s fault
o 2. Clerical or typographical errors
o 3. Void judgments
o 4. But some judgments cannot really obtain finality – like
support
 Is the judge required to take notes during course of hearing
in order to be able to render valid judgment?
o No.
 Is it required that the judge who heard the case is the same who
renders the decision?
o No. But the judge must personally review it.
 Is filing of memoranda by the parties (after the trial, predicated on the finality of judgment.
after submission of evidence) required/mandatory?
Execution
o It is not mandatory. It is not essential.
o Non-submission is not fatal.
 What is a separate judgment?
o If there are many claims, the court can render judgment on
one, and the action proceeds with regard to other claims
o Ex. In expropriation – there are two judgments:
 1. Authority to expropriate
 2. Just compensation
o Ex. Summary judgment (one case has several judgments
– summary as to the one with no genuine issue, and trial
over the ones with genuine issue)
 What is the difference between a separate judgment from a
several judgment?
o Several refers to parties, separate refers to claims
 Can the court render a judgment to a non-juridical entity?
o Judgment will be against the members, not the entity itself
 The judgment awards attorney’s fees. What is required for it to be
valid?
o The court must state its factual, legal, and equitable
justification. They are not recoverable as a matter of right. If
there is no factual basis, then the award of attorney‟s fees
is void.
 What is required for a memorandum decision?
o It must attach the findings of the lower court in an attached
annex which is made an indispensable part of the decision.
o Remote reference is not allowed.
 What is a sin prejuicio judgment?
o It is not binding, because it makes reservation in favor of
some parties as to the right to do something in a separate and
further proceeding
 What is a mittimus?
o Final process for carrying into effect the decision of the
appellate court and the transmittal to the court a quo. It is
50
 When is execution a matter of right?
o Judgment is final and executory USUAL CASE
 Ex. period appeal has already lapsed
 When is execution a matter of discretion?
o For good reasons, when it is not yet final and executory
o Execution of several, separate, or partial judgment
 Which court issues the writ of execution?
o Court that rendered judgment
o RTC issued a decision, it was appealed to the CA, then
to the SC. Who issues the writ of execution?
 The RTC – the court of original jurisdiction
o Are there instances wherein the writ will be issued by
an appellate court, or a court other than that of original
jurisdiction?
 In the interest of justice, you can apply to the
appellate court. But the general rule is that it is
still the court that rendered the decision.
o Can the CA issue a writ of execution, other than in this
instance?
 When it exercises original jurisdiction.
50
 Where do you file a motion for execution?
o File it in the court that rendered the judgment.
o Can it be filed with the appellate court?
 Same with above.
 Do you need to file a bond to apply for discretionary execution?
o The obligor needs to file a supersedeas bond to stay
discretionary execution; but the obligee does not need to file
a supersedeas bond to apply for discretionary execution.
o What does the obligee need to present then?
 Proof showing good reason
o What are examples when discretionary execution vest?
 1. Perishable goods
 2. Old age + sickness [?]
 When does judgment become final and executory?
o A final judgment or order is one that finally disposes of a case.
This is the only thing that could be subject to execution.
 What is the difference between discretionary execution and
execution pending appeal?
o They are the same. And both require good reasons.
 Should the writ of execution conform to the dispositive portion? o Yes, even for those immediately executory in nature.
o Execution must conform to the dispositive portion. What is o Cagayan de Oro: A lawful levy for execution is needed before
reproduced in the writ is the dispositive portion of the there can be a sale can be effected.
judgment. (Intramuros)
 Is a full blown trial required for a motion for execution?
o No.
 Can execution pending appeal be applied for to the TC after the
appeal has been perfected?
o For as long as the TC has jurisdiction over the case.
o See Rule 41. [This includes execution pending appeal,
provisional remedies, etc.]
 Do you need a bond to stay a writ of execution that was issued
as a matter of right?
o No. You cannot stay it anymore – even with a bond. It‟s a
matter of right.
o What is the exception?
 Get an injunction or TRO, claiming GADALEJ.
 What are the judgments not stayed by appeal?
o Injunction, receivership, accounting, support, other
judgments saying it‟s immediately executory
 Can an MR stay a motion for execution?
o The provision only says “an appeal” can stay a judgment…
theoretically, jurisdiction is still with the court of original
jurisdiction.
o But there is no clear answer.
 In an ejectment case, which court issues the order of demolition?
o The court of original jurisdiction, i.e. the MTC
o What is the exception?
Mina: Discretionary execution can be entertained by
the RTC.
 Who has to make reports?
o The sheriff, on any matter of execution, esp. the conduct of
such.
 Is a motion for execution indispensable before the court can
execute?
1
 o Can the court motu propio issue a writ of execution?  Proceed to sale of the property to satisfy the
 OCA v. Corpuz: Court on its own, cannot issue a judgment.
writ of execution without motion of another party o What if the judgment is for money, not property?
 What is revival of judgment by an independent action?  File a claim against the estate
o If you went beyond 5 years from entry of judgment, but are  Section 8: Contents.
still within the prescriptive period, you can file an o Do the contents have to always be there?
independent action to execute.
 No. Only to the extent applicable.
 When can you file a motion for execution?
 Money judgments
o Within 5 years from entry of judgment
o Payment must be in what form?
 After lapse of period of ten years, can you still revive it?
 In cash.
o No.
o Payment must be made to whom?
o Is it always ten years?
 To the judgment obligee, if available
YES. This is the flat prescriptive period
 What if he is not available?
for judgments.
 Death after judgment:  To his representative
o If the judgment obligee dies, then the  What if he is not available?
executor/administrator applies for execution  To the sheriff
o If the judgment obligor dies, and judgment is for recovery o Can payment be effected not by cash (Ex. check or PN)?
of real/personal property – there is a lien over his property  Certified bank check is allowed
o What if levy has already been effected?
 Or any other form of payment acceptable to the latter

2
 o What if there is no cash?  No. It is punitive in nature, so there must be a
 Go to  hearing.
 How is this accomplished?
 Levy on real or personal property
o What will be disposed first?
 Choice of judgment obligor
 If he doesn‟t make a choice, personal property is
prioritized over real property
o What if there is no property?
 Go to 
 Garnishment
o Custodian of the funds/deposit/royalty has to make a report.
o How many days to report?

5 days from receipt of notice. The custodian/manager
has 5 days to report if there is money.
o What does the court do next?
 It issues an order requiring transfer of funds.
o Can you garnish without prior demand of payment?
 No.
 Specific acts
o If the court requires the obligor to do something, but he
refuses, what happens?
 The court can require another person to perform it.
o If the other person does not comply?
 The court may consider that it has been DEEMED
complied with.
 Give an example.

The court orders that there must be
execution of deed of sale in favor of Y, done
by X. X refuses. The court orders Z to
perform it. Z refuses. The court will deem it
complied with. This deed of sale will be
forwarded to the Register of Deeds or
whoever/whatever office
o Can an order for demolition be given along with the writ of
execution?
  There must be motion of judgment  What about mausoleums?
obligee after due hearing and after the  No.
former has failed to remove the same
o [Among others]
within a reasonable time fixed by the court
o When can there be contempt?  When can you apply for a motion for execution?
 ONLY applies for special judgment, and there o Section 14. This also tells you the life of the writ.
is refusal to comply. o What is the life of the writ?
 What are the properties exempt from judgment?  5 years, before it expires.
o Family home, homestead, and the land  Sec. 15-34:
 If you mortgaged your Family Home, will it still o Important parts:
be exempt from execution?  Requirements of sale
 No.  Certificates of sale
 What are homestead lands?  Redemption
 Public lands given to people giving them  Redemption period
a chance to cultivate  Who will be in possession of the property sold in
o Libraries of professionals not beyond 300K public sale
o Furniture for the family not beyond 100K  Who will be entitled to fruits/profits of the property
o Beasts of burden (up to 3)  What if after participating in the sale, you are unable
o Tombstones to take possession of the property – remedies
o What are the requirements for sale?
  TWO NOTICE REQUIREMENT: one to the  Serve copy to the judgment obligee
judgment obligor, one to the public  What is the effect?
 Public – posting in 3 conspicuous places (or  The officer is not bound to keep the property
even by publication if assessed value of real
property is 50K+)
 What if it is a perishable good or personal
property?
 Perishable goods – within reasonable time
(no strict timeframe)
 Personal property – at least 5 days notice
 Real property – posted for 20 days
o N.B. not “at least”
 What if the assessed value of the real property
exceeds 50,000, what is needed?
 There must be publication
 Should you notify the judgment obligor?
 Perishable goods – just notice before the
sale
 In all cases, notice at least 3 days before the
sale
 What time must the sale be?
 9 am to 2 pm, and it must be in the office of
the Clerk of Court. But usually, it is done
outside the hall of justice
 What if it is personal property capable of
delivery?
 It must be done in the place where the
property is located
o What is the consequence of selling without notice or
defacing/removing the notice?
 Penalty of 5000 pesos recoverable in the same action
o What if there is a third party claimant?
 He asserts his claim in the proceedings through an
affidavit of title
 Served on the levying officer
  What is the remedy of the judgment obligee? property sold
 Post a bond approved by the court to  2. Price paid for each distinct parcel or lot
indemnify the claimant (value is not less  3. Whole price paid
than value of property)  4. Statement that right of redemption expires
 In such a case the officer shall not be 1 year from the date of registration of the
liable for damages for taking/keeping the certificate of sale
property if the bond is filed  registered with the ROD
 When can there be a claim of damages for taking
o Can you redeem personal property sold on public sale?
or keeping of the property?
 Only within 120 days from the date of filing
 No. Personal properties cannot be redeemed,
only real properties.
of the bond
 N.B. The claimant is not precluded from filing a claim  Who can redeem real property?

to the property in a separate action  The judgment obligor can redeem

o Is a certificate of sale mandatory for personal  Who else?
properties capable of manual delivery?  Those who have interest on the property,
 No, it is not. either by credit, encumbrance
 For real properties, you need a certificate of sale. (redemptioners)
 What is the distinction?
 What are the contents of a certificate of sale?
 Judgment obligor always has a period of 1
 1. Particular description of the real
year, non-extendable
  Once the judgment obligor redeems, no whoever purchased the property.
further redemption is allowed.
 Redemptioners may redeem, but it may
again be redeemed from them within 60
days by another redemptioner
 What about the redemptioners?
o Their rights were never
extinguished. It still exists, over the
property.
If the judgment obligor does not redeem,
can the redemptioners redeem beyond
the 1 year period?
o No. This is the view sir subscribes
to, even if some commentators say
there can be endless redemption
beyond the 1 year period in 60 day
intervals. But sir said that after 1
year, the last redemptioner gets the
property.
o Who has possession during redemption period?
 Obligor.
o Who is entitled to fruits and profits?
 Obligor.
 N.B. The obligor cannot change the nature of the
property during the period. He must not modify it.
o How must redemption be made?
 It must be willingness and intention coupled with
tender of payment. Willingness and intention without
tender is not enough.
 Case: The redemptioner wanted to redeem in
installments, and not full payment. This was held
to be invalid.
 Beyond the redemption period, can it still
be
redeemed?
 It is not anymore redemption as
contemplated by law; just a contractual
arrangement between the redemptioner and
  Amount subject to sale + interest
+ taxes, if before the one year
period; however, after the period
is over, the amount can be
dictated by the parties freely.
o I purchased property in a public sale, but
someone with a
better interest came forward, so I wasn’t able
to get possession and transfer of the
property. But I already parted with my money,
and paid the sheriff. What should I do?
 1. You can recover its value in the
same action or separate action
 2. You can have the judgment revived in
the name of the purchaser – he steps into
the shoes of the judgment obligee.
 In this case, he can execute –
just like any other judgment
obligee.
 [So if he cannot pay, he can levy,
and if not, he can garnish.]
 In execution, you need to remember the word
“satisfaction.” Sections 44 and 45 have this end in mind. The books
of the case will not be closed, even if you won, if judgment has not yet
been fully satisfied.
 What are the remedies of the judgment obligee if the writ of
execution as returned shows that the judgment has not been
satisfied?
o 1. Call the judgment obligor and have him examined in court,
through subpoena
 N.B. only if the residence of the judgment obligor is in
the province or city of the court
o 2. Call on the stand the debtor of the judgment obligor to be
examined in court, through
subpoena
 What if in the course of examination, we find that
he owes the obligor?
 He can then be charged.
 NB. Obligor/debtor of the judgment obligor may pay
what he owes directly to the sheriff, and the sheriff
issues a proper receipt – enough to discharge
o 3. Amortization of payments
o 4. Court appoints a receiver over the property
 Akin to the provisional remedy on receivership
  This is the only provisional remedy that can be given
by the court even after judgment
 The reason: to preserve the property.
o 5. If it is later discovered that the obligor has an interest over a
certain real property, the court can order a sale to satisfy the
judgment
 Who is ordered to sell it?
 The receiver
 The property must be within the place in which
proceedings are had
 N.B. the interest over the real property must be
ascertainable without controversy
o 6. If person who has possession of the property of the obligor
refuses to recognize the title of the obligor:
 1. The court may issue an order that the judgment
obligee institute an action for recovery of the interest
or debt against the judgment obligor
 2. The court can forbid a transfer or other disposition
of the property within 120 days from notice of
the order
 3. Punish the judgment obligee for failure to comply
with the order
 N.B. ironically, it is the judgment obligee
subjected to punishment for failure to comply
 N.B. Atty. Salvador said the sale must be
within the 120 days provided by the order
 In sum:
o 1. Examine obligor
o 2. Examine obligor‟s obligor
o 3. Amortize
o 4. Receivership
o 5. Sale of obligor‟s interest
o 6. Obligee action against obligor‟s adverse claimant
 What are the 3 scenarios to show full satisfaction?
o 1. The writ of execution has been returned to court
o 3. When there is an endorsement on the face of the records of
the case
 Even if the other party does not consent, but the court believes that it
has been satisfied, the court may enter that it has been satisfied.
 What are the effects of domestic judgment? (MEMORIZE)
o 1. As against a specific thing, condition/status/relationship of a
person – conclusive upon it
 As an exception to this, where a will has been
probated, is death of the party conclusive?
 It‟s only presumed
o 2. Res judicata
 Baretto v. CA: Two aspects of RJ – 1. judgment bars
the prosecution of the same claim, demand, or cause
of action, 2. Precludes the re-litigation of a
particular fact or issue in another action between the
same parties in a different claim or cause of action
o 3. Preclusion of issues/conclusiveness of judgment
 As to other litigation actually and necessarily included
therein
 What are the effects of foreign judgment?
o 1. Conclusive as a specific thing
o 2. Presumptive evidence of rights between parties
 How do you enforce foreign judgments?
o 1. File a verified petition in the RTC
o 2. Show there was jurisdiction of the court over the subject
matter and over the parties
o 3. Prove the law of that jurisdiction
 Every 30 days, the sheriff has to report on the status
of the writ
o 2. Written acknowledgement of the judgment obligee or
counsel
 How do you impugn that foreign
judgment? o 1. Want of
jurisdiction/notice to party o
Collusion
o 3. Fraud
o 4. Clear mistake of law/fact
 How about foreign arbitral awards?
o You file an action for recognition. It is not a foreign judgment.
2.
POST-JUDGMENT REMEDIES
Motion for reconsideration
 Is an MR a prerequisite to appeal? o B. The effect is different. An MR involves a trial de novo, if
o No. approved.

 In a case involving summary procedure, is MR allowed?

o What are the grounds for MR?

o No, it is a prohibited pleading

 1. Evidence not sufficient to support the judgment

 How many days to file?

o 15 days
o Can it be extended?
 Cannot be extended
 This rule has never been changed. You cannot file an
extension on an MR
o So what’s the remedy?
Some lawyers suggest filing a supplement. But
actually, there must be a new event or fact that arises
to do this. So this is dangerous.
 How long must an MR be resolved?
o Within 30 days
 Can there be a partial MR?
o Yes, when the court finds that the MR affects only a part of the
judgment (ex. just one of the issues).
 Distinguish an MR from an MNT.
o A. The grounds are different. In MNT, the grounds are FAME
and newly discovered evidence.
 What fraud is needed here?
 Extrinsic fraud.
 What is mistake?
 Mistake of fact in good faith
 If there‟s a mistake of law, the remedy is an
MR, not MNT
 What is newly discovered evidence?
 1. It must be material
 2. It was not available during trial despite
exercise of due diligence
 3. If considered by the court, it could
later/change the result
  2. Excessive damages
 3. Decision contrary to law
 What is the fresh period rule?
o Neypes: After denial of an MR, the period returns to 15 days
 Does the Neypes ruling apply to other kinds of appeal?
o No. Just Rules 40 and 41 (ordinary appeal).
 Why? What about the others?
o Rule 42 (petition for review) – no need for Neypes
ruling, because the provision itself provides for it
 “The petition shall be filed and served within 15
days from notice of the decision to be reviewed
or of the denial of the petitioner’s MNT/MR filed in
due time”
o Rule 43 (review of QJA) – no need as well
 Same wording as Rule 42.
o Rule 45 (petition for review on certiorari) –
 Same wording (15 days from notice of
judgment/final order or of denial of MNT/MR)
 How many times can you file an MR?
o Just once
 How many times for a MNT?
o Can be multiple, as long as on grounds not existing when
the first MNT was filed
 What is the effect of granting an MNT?
o There will be a trial de novo.
o The evidence so far presented may be used in the new trial
without retaking
 Can there be MNT in the appellate court?
o Yes, but with different rules and only to the Court of Appeals
(not all appellate courts).
o Rule 53 covers MNT in the CA. So that MNT is different from
the MNT here. The MNT in the Court of Appeals only has one
ground: newly discovered evidence.
o There are different periods as well –
 In the MNT in trial court: 15 days from judgment
 In the CA: for as long as it‟s an active case (no need
to wait for a judgment in the CA – as long as the CA
has jurisdiction)
 Is there a MNT in the SC?
o Rule 56 –
 o As a rule, an MNT cannot be entertained in the SC. resort to petition for relief from judgment. Take note, that there
o But it is left with the sound discretion of the court if it feels that must be entry of judgment, which means if there is no final
judgment yet, you can still do an MR/MNT/appeal.
it should do it in the interest of justice.

Petition for relief

 How many kinds of petition for relief do we have?

o Two.
o 1. From judgment
o 2. From denial of appeal
 Where do you file it?
o From judgment: before the court that rendered judgment, not
before the appellate court
o From denial of appeal: from the court that gives due course to
an appeal

N.B. So if it‟s ordinary review, to the lower court. If
it‟s a petition for review, then to the appellate court.
 A lawyer forgot to file an appeal on time. He filed late, and it was
denied. What do you apply for?
o Cannot use petition for relief from denial of appeal, because
there is no ground. He just forgot; he wasn‟t prevented.
o You file an MR.
o Why?

You file a petition for relief from denial of appeal if
you were prevented from filing it. Here, he was not.
 What is the time period for filing petition for relief?
o Within 60 days from knowledge from the judgment of
order (count from entry of judgment)
o BUT NOT more than 6 months after entry of judgment/order
o N.B. both periods must apply (“60 within 6”)

The sixty days can only move around the six months.
If you found out the day before six months expire, you
are left with one day, not 60 days.
 Can you file a petition for relief from judgment when there is still
an available remedy of MR, MNT, or appeal?
o No. As long as there are still available reliefs, you cannot
 Where else does FAME apply?
o 1. MNT
o 2. Petition for relief from judgment/denial of appeal
o 3. MR to court order declaring defendant “as in default”
(failed to appear in pre-trial)
o 4. Motion to lift order of default (failure to file an answer)
 What are the grounds for annulment of judgment (Rule 47)?
o 1. Extrinsic fraud
 Prescribes 4 years from time of discovery
o 2. Lack of jurisdiction (covers both SM and person)
 N.B. This is the only provision that uses lack
of jurisdiction both ways
 Mr. X died, leaving an estate. Juan claims to be the sole heir. The
estate court adjudicated the entire estate in favor of Juan.
Judgment became final and executory. After 2 months, the rest
of the heirs who learned of the judgment came forward and
filed a motion to set aside the judgment. Court denied the
motion to set aside the judgment. So they went to the CA on
an annulment of judgment. (N.B. a petition for annulment of
judgment is an original action; it is not an appeal. You file this for a
decision of the MTC, to the RTC and for a decision of the RTC, to
the CA.) Did they use the proper remedy for filing petition for
annulment of judgment in the CA and not petition for relief to the
court that issued the judgment? (Alaban v. CA)
o Petition for relief.
o 1. Although section one states that only a party may file a
petition for relief from judgment, settlement of estate is an
action in rem. It requires publication, so the heirs have been
notified and deemed as parties.
o 2. The learned of the judgment 2 months (60 days) from
learning of the judgment. So the proper remedy is petition for
relief, since it falls within the period.
 N.B. Remember this: petition for relief is filed by a party to a case.
Annulment of judgment can be availed of even by a non-party to a case.
Appeals
 1. Appeal is a statutory privilege
o Neither a natural right nor a constitutional right
 o There is right to due process. But the right to appeal  Raised in the pleadings
an adverse decision is not part of the right to due o May that issue not included in the pleadings be tried
process. nonetheless?
o Thus you cannot deviate from the requirements made
 No. Except if one moves to amend the pleadings to
mandatory under that law that gave you such conform to evidence or authorize its presentation
privilege.
 2. “Matter of right” (qualified)
o One can technically view appeal as a right as long as there is
a statute providing you such privilege already laid down
o Ex. judgments of MTC and RTC exercising original jurisdiction
 So if the RTC exercised original jurisdiction, the CA
must entertain the appeal
 3. Not a “matter of right”
o Ex. appealing from judgment of a court already
exercising appellate jurisdiction
o Ex. MTC (original) RTC (appellate)
 One may file a Petition for Review technically,
this is still a matter of right [at least, to file, from
one‟s point of view]
 But whether it is given due course by the higher court
or not is another issue – there is discretion not
to entertain the petition for review
o Ex. Rule 42, Rule 43, Rule 45
 4. Purpose of appeal
o Review errors of judgment
 Errors of fact or errors of law
 One is talking about a court having jurisdiction
over the person and subject matter
 Goal: to achieve reversal or modification of judgment
o Contra: errors of jurisdiction
 Goal: set aside judgment. This is covered by Rule
65.
 ONLY the defenses that were put up in trial court may be elevated for
appeal. Issues not discussed below at all, in the pleadings, may not
be elevated for appeal. (Rule 44, Sec. 15)
o How are issues raised in the trial court?
 o A party submits evidence outside the issues raised in
the pleadings. The other party accedes to it. How does
the other party show that he did not object to the
raising of issues outside the pleadings?
 Submitted evidence on that issue too
 Cross-examination
 Remaining silent
 A question of jurisdiction is something that you can question
anytime. (“A dragon that may be slain each time it rears its
ugly head.”):
o It doesn‟t matter if you raise it on appeal or through SCA;
the point is you can raise it to a higher court.
 What is the exception?
o Estoppel. For instance, X failed to object to jurisdiction of
the tribunal and actively participated in the trial.
 If a party to a case got a smaller amount than prayed for, but
he won the case, can he appeal?
o Yes, he was not satisfied with the award. It does not follow
that just because a person won the case, he is not allowed
to appeal.
 In a criminal case, the accused is convicted. May he appeal?
o Yes.
 May the State appeal on the ground that the penalty imposed is
not what the prosecution wanted?
o Yes.
 Appeal is a remedy. A remedy to what?
o An appeal may be taken from a judgment or final order that
completely disposes of the case,
o Or of a particular matter therein when declared by these Rules
to be appealable. (Rule 41, Sec. 1)
 Ex. special proceedings or SCAs usually allow
multiple appeals; e.g. settlement of estate: probate
of will, appointment of executor, etc.
o Why does the provision not put the word “final” before
“judgment”?

Because if the judgment is final, then it would be
executory otherwise. To remove this confusion,
then the provision does not state “final”
o Why does the provision put “final” before “order”?
  Because the provision wants to contrast this file for motion to discharge
against interlocutory orders, which are non- the injunction or may file
appealable. counter bond
o Is there a distinction between judgment that completely  B) To avoid multiplicity of appeals
disposes of the case and final order that completely o 3. An order disallowing or dismissing an appeal.
disposes of the case?
 “Disallowing an appeal” – this is fairly obvious
 Judgment is based on the merits of the case, after
 “Dismissing an appeal”
a full-blown trial and evaluation of evidence.
 Final order is based on adjudication not after
going through a full blown trial. Ex. MTD or
demurrer
 The defendant files an answer but it did not controvert the
allegations in the complaint. What should the plaintiff do?
o File motion for judgment on the pleadings (Rule 34).
o This is a final order that completely disposes of the case,
and is appealable.

 What matters cannot be appealed?

o 1. Order denying petition for relief from judgment:
 Remedy is any of the Rule 65 remedies
o 2. Order denying interlocutory order:
 Judy Ann Santos v. People – MTQ denied. Filed
MR to the denial of the MTQ. HELD: The denial
of the MTQ is an interlocutory order which is not
the proper subject of appeal or petition for
certiorari.
 There would be no procedural void:
 A) There can still be appeal of the main
case
 B) There can be petition for certiorari of
the main case if there is GADALEJ
 Two reasons why interlocutory order cannot
be appealed:
 A) Still subject to modification or
rescission by the court
o Ex. for preliminary injunction, may
  This does not refer to adverse decisions. It just
gets confusing for many because the appellate
courts use the term “hereby the appeal is
dismissed” if a party loses an appeal.
 It actually means the same thing as disallowance;
so for instance, there was no payment of docket
fees, etc.
o 4. An order denying a motion to set aside judgment by consent,
confession, or compromise on ground of duress, fraud, or
mistake or any ground vitiating consent.
 What is unique about judgment rendered by court based
on compromise?
 It is immediately executory.
 For instance, a party is defrauded by the other party in
a compromise agreement. He files a motion to set
aside the judgment. It was denied. What is the
remedy?
 He can‟t appeal, but can avail of Rule 65.
o 5. Order of execution
o 6. Order dismissing an action without prejudice
 What is a dismissal without prejudice?
 One that does not bar the party from
again filing the same action disposed of.
 MTD was filed by the defendant on the ground
of failure to state cause of action, and it was
granted. Is it appealable?
 No. It is dismissal without prejudice.
 MTD based on statute of limitations: dismissal
without prejudice?
 No. It is a dismissal with prejudice, and
therefore appealable, because the
action has prescribed, and cannot be re-
filed.
 What are the four grounds where dismissal is with
prejudice?
 1. Statute of limitations
 2. Statute of frauds
 3. Res judicata
  4. Payment, waiver, extinguishment, o 2. Record on appeal
abandonment  When is there record on appeal?
o 7. Judgment or final order in an action with several parties or o 1. Multiple appeals
rd
claims, counterclaims, cross-claims, and 3 party claims, o 2. Special proceedings
when the main case is pending unless the court allows
 General rule: wait for the main decision. Even if the
main decision comes out 2 years after, the party
receiving an adverse decision may still file an
appeal in time.
 In all of the grounds stated therein, where there is no appeal
allowed, what is the proper remedy?
o Rule 65.
 What ground has been deleted?
o Order denying MNT or MR – this used to be the first in
the enumeration
o SC-07-7 (Dec 2007) removed this from the enumeration.
o Does this mean that you may appeal from the
order denying the MR or MNT?
 No, still not.
o So why was this removed from the enumeration?
 So the parties cannot avail of the last paragraph of
Sec. 1 (Rule 65 – certiorari, prohibition,
mandamus) to question the denial of the MR or
MNT.
 But this is a bit unfair, because for instance, your
MNT was denied even if there actually was new
evidence – you don‟t have certiorari as a
remedy anymore!
 Although nothing prevents filing a separate petition
for certiorari to question this act by the TC.
 What are the three modes of appeal?
o 1. Ordinary appeal (Rules 40 and 41)
o 2. Petition for review
o 3. Petition for review on certiorari
 What are the ordinary appeals?
o 1. Notice of appeal
60
 What happens to the title of the case?
o The title remains the same. So the plaintiff is still
mentioned first, and the defendant next.
 But the designation just changes.
o What if both parties appeal?
 Ex. Glenn Tuazon, plaintiff v. Rensi Pua, defendant
 Glenn Tuazon, appellee v. Rensi Pua, appellant
or
o Under Rule 43 (Q-J), what is the rule?
 There is no set rule. It can be appellant/appellee
or petitioner/respondent.
 Plaintiff-appellant v. Defendant-appellant
 But in their briefs, they would refer to the other
party as “appellee”

 Glenn Tuazon, appellant v. Rensi Pua, appellee Ordinary appeals (Rule 40-41)
o What if it goes up to the Supreme Court?
 When one goes up to the Supreme Court, it  Period to appeal?
becomes petitioner v. respondent. o 15 days for notice of appeal, from receipt of notice of
 And the title need not remain the same. the judgment
 You do not include the CA as a respondent when o Receipt by whom?
you appeal to the SC, still the same private party.  The party or the counsel
(The SC already issued a circular for this.)
o If there was notice sent to both the party and the
 The lower court only becomes a respondent, for counsel, and the notice to counsel arrived earlier, what is
instance, in a petition for certiorari. If there is the reckoning point?
GADALEJ, for instance, the defendant is the
court. The private respondent just files the
 The notice to counsel, because notice to counsel
is notice to the party.
response on behalf of the public respondent.

60
 o If you have multiple counsels, and the court clerk sent o Within 48 hours
a copy to all such, what is the reckoning point? o What about Writ of Amparo and Writ of Habeas Data
 Upon the receipt of the lead counsel, as opposed cases?
to collaborating counsel.
 If both are co-counsels, then receipt by either starts
the reglementary period.
o Can you extend the period of 15 days?
 Not extendable
 But if you file an MR and it is denied, following
Neypes (as adopted by SC 07-7), you get a fresh
period.
 X set a hearing for MNT on June 20. The court
ruled on July 6, denying the MNT. X got a copy on
July 9 by registered mail.
 X can still appeal. It is immaterial how
long the court took to resolve the MNT.
 Fresh period of 15 days to appeal.
o X, instead of filing an MR, filed a motion for extension to
th
file the MR. He filed on the 14 day. It was denied outright.
Having the motion denied, how many days remain to file a
notice of appeal?
 This is a prohibited motion, so it should be treated
as if it were not filed. The period continues to run. If
th
it was decided beyond the 15 day, then X is barred.
 When is the period of appeal 30 days?
o Record on appeal (to be discussed in Rule 41)
o But you must file both notice and record. When is
the notice of appeal filed?
 There is no separate time frame for the notice of
appeal. Both can be filed within the 30 day
period.
o Can you extend the period of 30 days?
 No
 Except when there is an authorized alteration or
modification of the record
 What is the period to appeal for Habeas Corpus cases?

1
  Within 5 working days, Petition for Review on
Certiorari (Rule 45) – but can raise both questions
of fact and law
 Appeal docket fee and other lawful fees – when and where do
you pay?
o Where: to the court that rendered the decision
o When: within the period to take appeal (so same as 15/30)
o Note: this above requirement is MANDATORY
AND JURISDICTIONAL.
o What if the notice was filed within 15 days, but the
docket fees were not paid within the same time (ex. 18
days)?
 The dismissal is not automatic – the trial court still
retains jurisdiction. It can decide whether to decide
to dismiss the appeal (failure to comply with a
mandatory and jurisdictional requirement) or to
continue with the appeal.
o What if he paid but the fees are short?
 What is mandatory and jurisdictional is the payment
of the whole docket fee.
2
 Usually the judge gives an order giving the party time
to comply with filing the entire docket fee.
 Contrast the Neypes fresh period with other fresh periods in Civil
Procedure –
o Filed motion to dismiss on the 13th day. It was denied.
How many days remain for you to file an answer – the 2
days or a fresh period?
 Fresh period of 5 days. (Rule 16)
o th
If it is a bill of particulars, filed on the 13 day. 2
days remain or fresh period?
 Fresh period of 5 days. (Rule 12)
 If the notice of appeal to the MTC did not make mention to
which court the appeal will go to, is it fatal?
o No. The law will fill the gaps that it would be the RTC
hearing the appeal.
 If the notice of appeal to the MTC was flawed enough to state that
the appeal will go straight to the Supreme Court, because he is
just raising pure questions of law?
o The court may have discretion to send it to the RTC instead.
But of course, this is up for question.
 If a court must to make a ruling that the appeal is erroneous, who o Upon the perfection of appeal by all the parties in due time OR
makes that decision? The trial court or the erroneously selected upon the lapse of the reglementary period given for them to
higher court? appeal lapses
o Higher court.  How about record on appeal?
 What if there was no copy of the notice filed to the other party?
o It is a fatal defect.
 What is a record on appeal?
o It‟s a sequential compilation of the pleadings, orders, etc. of
the judge.
o Unlike a notice of appeal, which is just a statement of: a) when
you received the decision, b) that you paid appeal docket fees
within period, and c) you intend to appeal
 When is a record of appeal required?
o 1. Special proceedings
o 2. Separate or multiple appeals if allowed by law or the rules
 For separate appeals, the judge decides if it is
allowed. GENERAL rule: wait for all the claims to be
decided (in a case with multiple claims).
 Can there be record on appeal be required for an appeal coming
from the MTC?
o Yes. For example, settlement of estate of decedent
who resided outside MM, and 300K or less.
 Why is there a need for approval of the Record by the trial court?
o The court must determine whether the record of appeal
is complete.
o Note: the copy furnished to the other party also gives
him chance to scrutinize the completeness of the record.
 When will you not indicate which documentary or
testimonial evidence you are including in the record in the
reference?
o When ALL of the testimonial and documentary evidence is
included. One just has to make a statement to that effect.
 When is appeal perfected?
o Upon filing notice + payment of docket fees
 When is the trial court’s jurisdiction lost?
 o Not upon mere filing of notice, but upon APPROVAL of
the record on appeal
 When does the court lose jurisdiction over the whole case?
o Only upon final order or decision of the case
o Because the record on appeal is only about a particular
subject matter in the trial
 If you go from the MTC to the RTC, what is the process?
o Take note that the RTC is an appellate court here.
o Parties file a memorandum to the RTC. The RTC will
not reexamine the evidence and witnesses.
o Period for filing of briefs?
 15 days, appellant‟s memorandum (from
notification of RTC clerk of receipt of complete
record/record on appeal)
 15 days, appellee‟s memorandum (from receipt of
appellant‟s memorandum)
 In Rule 41, the court of original jurisdiction is the RTC, and the
appellate court is the CA. Why is it also an ordinary appeal?
o Because it‟s only been decided on once, and will be
reviewed for the first time.
o What is the procedure in the CA?
 Filing of appellant‟s and appellee‟s brief. The
procedure is found in Rule 44, not 41.
o Period for filing of briefs?
 45 days, appellant‟s brief (from receipt of notice of
the clerk that all evidence have been attached to
record)
 45 days, appellee‟s brief (from receipt of appellant‟s
brief)
 20 days, for reply (from receipt of appellee‟s brief)
 Coming from a loss in the RTC (exercising original
jurisdiction), what are the available remedies?
o 1. Ordinary appeal
o 2. Petition for review on certiorari (Rule 45)
 For pure questions of law
o 3. Record on appeal + Notice of appeal
 Differentiate:
o Petition for certiorari (Rule 65) – errors of jurisdiction
o Petition for review (Rule 42 and 43) – second level appeal
 o Petition for review on certiorari (Rule 45) – pure questions o Is the enumeration in Rule 43 of QJAs exclusive?
of law  No.
 When can you NOT go straight to the SC despite the appeal  Particular rules:
being of pure questions of law?
o If it is coming from the MTC, it has to go to the RTC first,
then CA, then SC. Cannot go straight to the SC.
o N.B. If the RTC is exercising appellate J (came from the
MTC), you cannot go straight to the SC by Rule 45. If
original, you can go straight to the SC by Rule 45.
 A case was filed in the MTC, but it was dismissed for lack of
jurisdiction. There was notice of appeal filed, and it was held
that the RTC had jurisdiction, which heard the case. Is the RTC
performing original or appellate jurisdiction?
o Either argument seems defensible.
o As a practitioner, what would be more protective of your
client, Rule 41 or 42?
 Rule 41 seems precarious. Play safe, go for Rule 42.
 Although using Rule 42 would be more
burdensome, since you have to come up with your
entire assignment of errors within 15 days (rather
than just filing the notice).

Petitions for review (Rules 42-43)

 What are the two kinds of petition for review?

o Rule 42
o Rule 43 (quasi judicial agencies)
o What about petition for review of the decisions of
the Prosecutor?
It is technically not a petition for review because it is
for criminal procedure, and is in the executive branch
 When does Rule 42 apply?
o There is denial in the MTC, and then denial in the RTC,
and then it goes up to the CA through Petition for Review.
 When does Rule 43 apply?
o Body with original jurisdiction is a quasi-judicial agency
 o HLURB Office of the President
CA o NLRC CA, but under
Rule 65, not 43 o DARAB CA
o CTA CTA en banc SC
o COMELEC, COA SC (Rule 65)
o CSC CA (Rule 43)
o OMB CA (Rule 43) for admin cases
o OMB SC (Rule 65) for non-admin cases
o DOJ Prosecutors DOJ Secretary (petition for review)
CA (Rule 65, based on GADALEJ)
 N.B. this is only for civil procedure. The rule
for criminal procedure differs (involves Office
of the President)
 If the issues you are going to raise are questions of fact (ex.
whether there was cultivation of the land, to the DAR), where
should he bring that problem?
o To the CA (of course, exhaust admin remedies first)
 If the question you are going to raise is purely legal, where do
you go?
o Still to the CA
o Sec. 3 (“whether the appeal involves questions of fact, law,
or mixed questions of fact and law”)
 Why is Rule 43 still called petition for review even if the QJ-A
is exercising original jurisdiction?
o Because the QJ-A is presumed to have the proper expertise,
beyond what the courts possess. The presumption is
definitely against the one appealing.
o This is why the CA does not automatically provide due course.
 What are the periods?
o Same for Rule 42 and 43 – 15 days
o Can you ask for an extension?
 Yes, you can ask for one during the
reglementary period.
 Upon motion and payment of docket fees
o Can you ask for a second extension?
 General rule is that no further extensions are allowed,
except for the most compelling reasons.
 What are the requirements of a Rule 42?
o 1. It must be verified
 o 2. Attach a copy of the decision or a duplicate original  A) whether or not he accepts statement of matters
o 3. Affidavit of material dates  B) point out insufficiencies and inconsistencies in
 Date of receipt of decision, date of filing of MR, date statement of matters
of denial of MR  C) reasons why petition must not be given due course
o 4. Contents of petition: o 4. Copy given to petitioner
 Parties
 Issues, grounds relied upon, errors
 Explanation if service is other than
personal o 5. Furnish RTC and other copy a copy of
the petition o 6. Pay docket fees to CA
o What are some causes that will dismiss the petition?
 1. The jurat does not comply with the requirements of
the notarial law
 2. Failure to attach registry receipt
 What are the requirements of a Rule 43?
o SAME, but you attach all certified true copies
o Why?
 Because it came from a QJA, the court cannot verify if
the issued resolutions, etc. are genuine
 Is a Certification of Non-Forum Shopping required?
o Yes, for both Rules 42 and 43.
 What actions can be taken by the CA?
o 1. Require respondent to file comment within 10 days of notice
 Not motion to dismiss
o 2. Dismiss petition outright if:
 A) patently without merit
 B) manifestly filed for delay
 C) too unsubstantial to require consideration
 What are the requirements of the comment to be filed by
the adverse party?
o 1. 7 copies
o 2. Accompanied by relevant certified true copies of material
portions of record
o 3. Contents:
 What is due course?
o That which is given when the CA finds prima facie that
the lower court has committed an error of fact or law that
will warrant reversal or modification of decision
o You have to wait for a notice whether the CA is giving
due course to the petition.
o When does the CA decide w/n to give due course?
 After submission of the comment or expiration of
date to file it.
 Does the appeal stay the implementation or execution of the
judgment of lower courts in a Rule 42 petition?
o Yes.
o Exception: summary proceedings in MTC
 Ex. Ejectment from MTC. The judgment in
this ejectment case is immediately executory.
 But it can be appealed to the RTC. However, even
pending appeal, it is still executory.
 BUT it can be stayed by posting supersedeas
bond and making deposit of monthly rentals and
fair compensation for usage.
 Does the appeal stay the implementation or execution of the
judgment of QJAs in a Rule 43 petition?
o QJ-A‟s decisions is NOT stayed, as a general rule.
o Although each law creating the administrative agency will
provide a specific rule as to whether its decision will be
stayed by appeal to the CA. BUT remember the general rule.
It will not be stayed.
o Why is it that the general rule under Rule 42, is that the
judgment of the RTC will be stayed pending
resolution, whereas in Rule 43, it will not be stayed?
 Because there is presumption of correctness on
the matter of expertise of the QJ-A.
 When is there elevation of record from the RTC?
o Only when CA deems necessary
o May order clerk of RTC to elevate records 15 days from notice
 When is there perfection of appeal?
o Upon timely filing of petition for review + payment of
docket and other lawful fees
o When does the RTC lose jurisdiction over the case?
  Perfection of appeals + expiration of time for others WOA or WOHD may go straight to the SC, even if
o When can the RTC issue orders under its residual there are questions of fact.”)
powers?
 What does Rule 45 cover?

 Before giving due course by CA

o Only appeals involving pure questions of law

o Residual powers:
 1. Protection and preservation of rights of parties
on matter not subject of appeal
 2. Approve compromises
 3. Permit appeals of indigent litigants
 4. Order execution of judgment pending appeal
 5. Approve withdrawal of appeal
o Why are there no residual powers in Rule 43?
 Because we are dealing with QJ-As, not
regular courts.
 After giving due course, what may the CA require?
o 1. Set case for oral argument
o 2. Or require parties to submit memoranda within 15 days
 When is the case deemed submitted for decision?
o Upon filing last memorandum or

pleading Petition for Review on Certiorari (Rule 45)

 The only way to go up to the SC is through Petition for Re view on

Certiorari.
o EXCEPTION: what if in a criminal case, the judgment of
the SB, RTC, or CA is life imprisonment or reclusion
perpetua?
 Go to the SC, but NOT by appeal by certiorari but by
notice of appeal.
o There are two situations where the SC can entertain
questions of facts, apart from life/RP decisions. What are
these?
 Writ of amparo (2007)
 Writ of habeas data (2008)
 (“Any aggrieved party in a lower court decision re:
 o Because the SC does not try facts, nor calibrate evidence
o Question of law:
 If the doubt or the difference pertains to what
law applies to a given set of facts.
o Question of fact:
 If the doubt pertains to the truth or falsity of an
alleged fact
o What if the issue raised in appeal is whether the contract
between parties is a contract of sale or contract of
equitable mortgage – what is the nature of the
question?
 Question of fact and law.
 What are the exceptions to the rule that the SC cannot
review findings of fact of the lower court?
o 1. Conclusion based on speculation, surmises, conjectures
o 2. Inference is manifestly absurd, mistaken, impossible
o 3. Grave abuse in apprehension of facts
o 4. Decision based on misapprehension of facts
o 5. Contradicting findings of fact
o 6. Lower court went beyond issues raised and against
what was stipulated by the parties
 Whose decisions can you appeal to the SC under Rule 45?
o 1. CA
 EITHER original or appellate (from RTC)
jurisdiction, as long as questions are purely of law
 Examples of original J: certiorari, prohibition, etc.
o 2. CTA
 Under RA 9282, it must be a decision of the CTA en
banc
o 3. RTC
 ONLY those decided under its original jurisdiction.
 Because for decisions under its appellate
jurisdiction, you have to go to the CA. (Rule 42),
EVEN IF it is only pure questions of law.
o 4. Sandiganbayan
 It goes automatically to the SC, because it is a co-
equal court with the CA. So the CA cannot review its
decisions
 Take note of this amendment: AM 07-7-12-SC:
 o The petitioner can now apply for provisional remedies (like  3) too unsubstantial to require further consideration
preliminary injunction, TRO) along with the petition for  N.B. Same as in the CA
review by certiorari
 What are the contents of the petition?
o May seek these same remedies through verified motion in
the same action or proceeding anytime during its pendency
o 1. Full name of the parties, without impleading the lower court

o N.B. can include attachment, but this would be rare in the SC

level. Support pendente lite is fairly common. Replevin is
also fairly common.
 Petition for Review on certiorari – what is the period?
o 15 days.
 N.B. count from receipt of final order or judgment, or
denial of the MR (“auto fresh period”)
o Can there be extension?
 ONLY ONE extension for 30 days, for good reason
o I asked only for an initial extension of 15 days. But I
realized I needed more time. Can I ask for the last 15?
 NOPE. You only get one extension.
o What are the requirements for motion for extension?
 1. Pay docket and filing fees.
 N.B. The docket and filing fees must be
paid at the time you ask for the extension;
and NOT during the extended period.
 2. There must be a justifiable reason.
 3. Serve a copy of the motion for extension of time
to the adverse party
 You raise a question of law to the SC. Is the review on certiorari a
matter of right?
o No. It is still subject to judicial discretion.
 So what questions of law do you need to raise to raise
the likelihood that your appeal will be given due course?
o It must not just be a question of law; it must be a
substantial question of law.
o What are the grounds to not give due course?
 1) patently without merit
 2) filed manifestly for delay
 o 2. Material dates showing timeliness
o 3. Concise statement of matters involved
o 4. Duplicate or CTC of judgment or final order or
resolution appealed from
o 5. Sworn certification against forum shopping
 This is an odd rule, since usually it is only required
for initiatory pleadings
 COMPARE with Rule 65.
o Who is the private respondent in a petition for
certiorari (Rule 65)?
 The other party, who benefited from the
adverse decision.
o Who is the public respondent in Rule 65?
 The judge or public officer.
 Not required to answer the petition.
o What about Rule 45?
 The lower court is NOT impleaded. The case
title also doesn‟t change.
 So instead of Tuazon v. CA, it is still Tuazon v. Pua
 Why is there a need to append to the appeal material portions
of the record?
o Because the matter of elevating the records comes at a later
time, from the CA clerk to the SC. So at the time of the filing of
petition, you need to pinpoint the errors ahead of time.
 What are the factors that must be considered whether the
petition should be given due course?
o N.B. These are not controlling over the court‟s
ultimate discretion
o 1. The question of substance has not yet been passed upon
by the SC [novel issue]; or decided not according to law
[power of correction]
o 2. Departed from usual accepted course of judicial
proceedings, or sanctioned such an act by a lower
court [power of supervision]
 E.g. In a lower court hearing, the judge arbitrarily
disallowed a party from presenting evidence.
 This is an example of #2.
 How do you differentiate it from GADALEJ
under Rule 65?
  It‟s difficult to do so, because the wording  Yes. You file annulment in the RTC.
of the second ground has all the trimmings  Can you seek an annulment of judgment of a CA
of Rule 65 Petition on Certiorari. decision?
 The CA and SC have concurrent jurisdiction over original
petitions for certiorari, mandamus, prohibition, etc. What negative
considerations must you have in deciding where to file?
o For CA – know that this is not final. There is still possibility of
petition for review by certiorari to SC.
o For SC – Sol-Gen can launch the issue of judicial hierarchy
 There are possible sanctions in case of non-filing or unauthorized
filing, or non-compliance with conditions, when the SC asks for
comment.
 Sec 8 – due course after exchange of pleadings
o It is a good sign and there is a receipt of resolution that the
SC has given due course to the petition

Rules 44-56 – CA

 How is jurisdiction acquired over persons for original cases filed in

CA?
o Service of order/resolution or voluntary submission to the
court‟s jurisdiction
o What does service of order or resolution mean?
 Akin to Rule 13 service of judgment
o What if there was an effort to serve and it was not
received? Is the court deemed to have acquired
jurisdiction?

No. There must be proper service of the resolution or
order. Not like summons, but the same as Rule 13.
 Can the CA conduct a hearing?
o For original cases, yes. This is why the CA requires hearings
or arguments for certiorari, annulment of judgment,
mandamus, prohibition, quo warranto.
o N.B. Annulment of judgment is an original action seeking
annulment of judgment of an RTC decision.
 Can you seek an annulment of judgment of
an MTC decision?
  No. Fall back to the usual rule that you the appeal was taken within the proper period
can only go up to the SC through Rule 45. o 2. Unauthorized alterations, omissions, additions to
o Can the justices hear the case? the approved record on appeal
 Yes. Alternatively, it can ask the RTC to receive o 3. Failure to make necessary corrections or completion
evidence. of record, according to order by court
 Preliminary conference is the equivalent of pre-trial in the CA. o [Brief-related]
Whether it is an original or appealed case, the CA can set it for o 1. Failure to serve proper number of copies of brief
preliminary conference. or memorandum
o What is the effect if the appellant is absent here?  When is a brief filed, and when is a
 The appeal will be dismissed. This is provided memorandum filed?
in Rule 50. This is almost the same rule as  If you lose in an SCA in the lower court, you
absence of the plaintiff in a regular pre-trial. file a memorandum on appeal.
 Rule 50 enumerates grounds for dismissal of appeals:
 Otherwise, you file a brief.
o [Failure to properly appeal]
o 2. Absence of specific assignment of errors in appellant‟s brief;
o 1. Order or judgment is not appealable
OR absence of page references to the record
o 2. Failure to file notice of or record of appeal within o [Failure to comply]
proper period
o 1. Failure of appellant to appear in preliminary conference;
o 3. Failure of appellant to pay docket and lawful fees
o 2. Failure to comply with orders, circulars, directives of
o [Record of appeal-related]
court without justifiable cause
o 1. Failure of record on appeal to show on its face that
 If any one of these circumstances appear, will the dismissal be  BUT in the Court of Appeals, motions in the CA need
mandatory? not be heard (same with the SC)
o No. It “may” be dismissed. There is court discretion. o 3. Comply with minimum requirements of Rule 44 and 50.
o Except: if order of judgment cannot be appealed  What if you don’t have an assignment of errors?
 If your appeal in disallowed, what is the remedy?
o Petition for certiorari, or petition for mandamus
 Two errors noted by Sec. 2 – and the appeal “SHALL”
be dismissed:
o 1. Pure questions of law sent to CA, instead of SC
o 2. Notice of appeal instead of petition for review from RTC
to CA
 When is withdrawing appeal a matter of right?
o Before filing of appellee‟s brief matter of right
o After: discretion of court
o “Motion for withdrawal.”
 What is the legal effect of withdrawal?
o Lower court decision becomes final and executory.
 Compromise agreement – when can it be done?
o Anytime. Even when the judgment has become final
and executory.
 Can the parties stipulate on the facts?
o Yes, if it is an original action, or there is a grant of new trial on
the ground for newly discovered evidence
o (Note: newly discovered evidence is the only ground for the
CA; FAME is not included)
 Oral arguments: what do I need to know?
o 1. Only original cases are argued in court; not appealed cases
 But if the CA feels that there is a need for the parties
to ventilate their arguments through oral
discussion, then it can do it in its discretion.
o 2. Motions are NOT heard in the CA
 While for trial courts, motions will be heard, except
those that will not prejudice the rights of the other
party.
  Your appeal will be dismissed.
 What if you don’t comply with court circulars?
 Dismissed.
 Rule 51 – provision on judgment.
o For trial courts, it is Rule 36.
 Can you file an MR in the appellate court?
o Yes. Rule 52.
o Same period (15 days)
o Same three grounds – except that the period to resolve in
the CA (90 days) is longer than the TC (30 days)
 Can you file a MNT in the CA?
o Yes.
o In the TC, grounds are FAME and newly discovered evidence
o In the CA, the only ground is newly discovered evidence
o Periods?
 TC – reglementary period within receipt of
adverse decision
 CA – from the time appeal is perfected and as long
as the CA has jurisdiction
Annulment of judgment in the CA
 When does annulment of judgment vest as a remedy?
o For final judgments of the RTC where ordinary remedies of
MNT, appeal, petition for relief, or other remedies are not
available
o What if it’s a decision of the MTC?
 File with the RTC and follow these same rules,
and treat it as an ordinary civil action
 What are the grounds?
o 1. Extrinsic fraud
 But not if it could have been availed of in an MNT or
petition for relief
o 2. Lack of jurisdiction
 When is the period for filing?
o If based on extrinsic fraud, within 4 years from discovery
o If based on lack of jurisdiction, before barred by laches or
estoppel
 Must it be verified?
 o Yes o Is there a MNT?
 What else is required?  No.
o 1. Attach CTC of the judgment sought to be annulled  For appealed cases to the Supreme court, what is the mode?
o 2. CNFS o Rule 45 – the only way to go up to the Supreme Court
 What is the court action available? o PLUS:
o Either dismiss it or issue summons to respondent
 What is the effect of a favorable judgment on the action?
o The judgment becomes null and void, without prejudice to
refilling
o Or if the ground is extrinsic fraud, the court can order a trial
de novo, as if an MNT was granted
o The court can grant

damages Rule 56 – Supreme Court

 Remember Sec. 1 and 3. Memorize the cases that will be originally

filed in the SC.
 What are the cases that can be originally filed in the SC?
o 1. Certiorari, prohibition, mandamus
o 2. Quo warranto
o 3. Disciplinary actions against members of the Bar/bench
 But if you file a case against a member of the Bench,
it will be referred to the Court Administrator. If against
a member of the Bar, it will be referred to the IBP.
o 4. Against ambassadors, consuls, other public ministers, etc.
o 5. Found in the Constitution: constitutionality of law, treaty,
ordinance, tax imposition, EO, etc.
 What do you need to follow for original cases?
o Rule 46 – original cases
o PLUS:
 Rule 48 (preliminary conference),
 Rule 49 (oral argument),
 Rule 51 (judgment),
 Rule 52 (MR)
  Rule 48 (preliminary conference),
 Rule 51 (judgment),
 Rule 52 (MR)
o Is there oral argument?
 No.
 Grounds for dismissal of appeals in the Supreme Court?
o [Failure to properly appeal]
o 1. Failure to appeal within proper period
 Ex. 15 days in Rule 45
o 2. Failure to pay docket and lawful fees or make deposit
for costs
 You have to pay directly to the SC because you
are appealing directly to the SC
 The usual rule that you pay the docket and lawful
fees in the lower court, and it will merely transmit to
the higher court does not apply here
o 3. Error in the choice or mode of appeal
o 4. Fact that case is not appealable to SC
 Always think of rule 45, general rule
 Note: Rule 65 is not an appeal, but
an original action
 There is no other. Ex. Notice of appeal is improper,
except one situation: Reclusion Perpetua or Life
Imprisonment (to be discussed later)
o [Patently without merit]
o 1. Lack of merit in the petition
 An appeal patently without merit
o [Failure to comply]
o 1. Failure to comply with requirements regarding proof of
service and contents of and the documents which
should accompany the petition
 Not just to adverse party, but also the lower court
who rendered the judgment
o 2. Failure to comply with circular, directive, or order of SC
without just cause
 Ex. Indicating telephone number, e-mail address –
stuff in addition to PTR, etc.
 N.B. For all grounds, take note it says “MAY BE” dismissed, so it is not
automatic.
 What if there is appeal by Rule 45 to the SC from the general statements
RTC submitting issues of fact? 3. Statement of the Case
o May be referred to CA for decisions or appropriate action. a. Clear and concise statement of:
Determination of SC whether or not there are issues of fact
is final
o What is the situation contemplated here?

On its face, there are only issues of law. But after
a while, the SC realized there are mixed questions
of fact and law.
o Options of SC:
 1) dismiss the case – improper mode
 Consequence: appellant had lost his time
to properly appeal to the CA (15 days only)
 2) remand to the CA
Because otherwise, there would be no
more time for you to go to the CA
 What is the procedure if opinion of the SC is equally divided
(stalemate situation)?
o This applies in an en banc case. This rule does not apply to
a division in the SC.
o 1. Deliberate again.
o 2. If still no majority:
 Original action – dismissed
 Appealed cases – decision affirmed
 Incidental matters – petition of motion

denied Contents of briefs

[Appellant‟s brief]

1. Subject index
a. Like a table of contents
b. For posterity‟s sake, put this even if it‟s just short
2. Assignment of errors
a. How the lower court erred
b. Key word: “specific” errors. Not allowed to just make
70
 i. Nature of action a. In cases not brought up through record on appeal,
ii. Summary of proceedings appellant‟s brief must contain this as an appendix,

iii. Appealed rulings and orders, and nature of judgment [Appellee‟s brief]
b. Easiest way to do it: chronological sequence
c. Don‟t bother mentioning the irrelevant motions like 1. Subject index
motion to extend, unless there is a timing issue, etc. 2. Statement of facts
4. Statement of Facts a. Or counter-statement
a. Clear and concise statement in narrative form of the facts
3. Arguments
b. E.g. “The following facts are not disputed by both parties:”
5. Statement of issue
PROVISIONAL REMEDIES
a.Just a simple statement of what the court needs to resolve:
e.g. W/N the marriage between plaintiff and defendant
Rule 57 – attachment
should be declared void on the ground of psychological
incapacity.
6. Arguments  When should jurisdiction over the defendant vest in attachment?
(Manguila, citing Davao Light and Power)
a. Must be with reference to the record
o Distinguish between issuance and implementation of the writ
b. And cite authorities
of attachment – to determine when jurisdiction is needed over
7. Relief the defendant.
8. Copy of the final order or judgment being appealed

70
 o Remember you could file an attachment will the initiatory to defraud.
pleading and apply for it ex parte. You can also apply for it o 2. Embezzlement/abuse of trust by one with a fiduciary
upon motion. relationship
o To answer the question: there are three stages for attachment  For all intents and purposes, this is estafa
–
 1. Court issues order granting application
 2. Writ of attachment issues pursuant to the order
 3. Implementation of the writ
 FOR THE FIRST TW O STAGES, jurisdiction over
the defendant is not yet required because it is an ex
parte application. However, when you are
implementing the writ, you need jurisdiction over the
defendant.
o Thus, how can the writ be implemented?
 You have to get jurisdiction over the defendant first.
o Summons should be served prior to, or contemporaneous with
the order (for implementation). Contemporaneous is better.
o Summons belatedly served does not cure fatal defect in the
enforcement of the writ.
 Either personal or substituted service.
o What are the exceptions to prior or contemporaneous
service of summons?
 1. Summons cannot be served personally or by
substituted service, despite diligent efforts
 2. Defendant is a resident of the RP temporarily
absent therefrom
 3. Defendant is a nonresident of the RP
 4. Action is in rem or quasi in rem
 Grounds for attachment? MEMORIZE
o 1. Any claim for money or damages except moral/exemplary, if
the claim arises from an obligation (law, contract, quasi-
contract, delict, quasi-delict) AND defendant is about to depart
with intent to defraud
 What if claim is recovery for sum of money only?
 No. You could only apply for attachment if
the defendant is about to depart with intent
1
 o 3. Action to recover property and there is willful  How do you discharge an attachment?
fraudulent concealment of the property o 1. Most common: post a counter-bond
o 4. Action against a person who removes/conceals property
 When do you post a counter-bond?
 Unlike (3), this is directed against a person
 Can be posted after enforcement of the writ.
o 5. Fraud in contracting the obligation or fraud in
 You cannot anticipate its enforcement.
the performance thereof – most asked ground
 First: If not for the fraud, the other party would
o 2. Improper, irregular, or excessive attachment

not have entered into the transaction  What is “improper”?

 Second: In the manner of the performance, it  Grounds are not present in the case
was fraudulent  What is “irregular”?
o 6. Defendant is a non-resident  Wrong process.
 Fraud not required here, because he can leave at
 When can this be raised?
any time
 What are the contents of affidavit for attachment?  ANYTIME, even before enforcement.
o 1. Cause of action o What if the writ of attachment was issued for a ground
that it is also the cause of action of the plaintiff?
o 2. Statement that any of the grounds applies
o 3. There is no sufficient security
 The only way to dissolve it is to post a counter bond.

o 4. Amount due to applicant or value of the property he seeks  Can you recover damages?
to recover is as much as the sum for which the order is o Yes, Section 20 – if there is improper, irregular, or excessive
granted, above all legal counterclaims attachment.

2
  N.B. Section 20 applies to all provisional remedies o By reason of a third party claim (with no bond needed from the
except support pendent lite. third party claimant – just an affidavit of his title), the process
o Where can you apply for it? will be suspended.
 In the trial court; during or after trial.
 You can apply for it within reglementary period, or
when appeal has been perfected. AS LONG AS it is
pending, and not yet final and executory.
o If you post a counter bond, does this waive any further
claim for damages arising from wrongful attachment?
 No.
 What kind of damages can be recovered?
o Yu v. Ngo: Evidence required for wrongful attachment. When
there is wrongful attachment, defendant may recover actual
damages, without need of proof of bad faith. When there is
malicious attachment, defendant may recover actual, moral,
and exemplary damages.
o What is the scope of the award of actual damages from
attachment?
 1. With best evidence obtainable, fact of loss or injury
 2. Amount thereof
o Can actual damages cover unrealized profits?
 Yes. But the amount must be supported by
independent evidence of mean income of the
business undertaken.
o How do you prove moral/exemplary damages?
 Prove that the wrongful attachment was with malice or
bad faith.
 How about attorney’s fees?
o Generally, attorney‟s fees cannot be awarded when moral or
exemplary damages are not granted.
o Exception: when a party incurs expenses to lift wrongfully
issued writ of attachment.
 What is the procedure for terceria (third party claim)?
o The applicant has posted a bond when he applied for a writ
of attachment (to cover whatever damages defendant will
suffer due to attachment)
 o Now it is the burden of the applicant to post another bond
in the value of the property, to cover the third party‟s
damages.
o How long can a claim for damages for taking/keeping
of property be enforced against the bond?
 Within 120 days from date of filing of the bond
 What is the difference in the third party claim in execution of
judgment (Rule 39) and Preliminary Attachment (57) or other
provisional remedies?
o The right of the third party claimant in attachment could
be vindicated in the same or in a separate action. In
execution, it could only be done in a separate action.
o Why?
 Because in execution, the judgment is already final.
 In Rural Bank, a motion was filed to release property from
attachment, giving affidavit of title to the sheriff. The court said that
the filing of the motion can be deemed the same as a third party
claim (because 3P claim must be filed with sheriff). It can also be
treated as a form of intervention.
 What takes precedence, levy on attachment or prior unregistered
sale?
o Levy on attachment duly registered takes preference over a
prior unregistered sale. The preference created by attachment
is not defeated by the subsequent registration (to the
attachment) of a prior sale, because attachment is a
proceeding in rem.
 What is the procedure when there is an alleged irregular and
improper issuance of attachment?
o When the attachment is challenged for being illegally or
improperly issued, there must be a hearing. The hearing
embraces the right to present evidence, and also the
establishment of rights of other parties.
o Mere filing of opposition is not equivalent to a hearing.
Absence of a hearing does not discharge attachment.
o N.B. The discharge of an attachment, whether through
counterbond or irregular, improper, or excessive – can only be
done through hearing.
o Security case: Two ways to secure discharge of attachment.
1) Party whose property or his representative has been
attached can post a security. 2) Said party can show that the
 attachment has been improperly or irregularly issued. Mere preliminary injunction:
posting of counter bond does not discharge the attachment. o Principal action – seeks a judgment for a final injunction which
There should be a specific resolution for the discharge. is separate and distinct from a preliminary injunction
 What if the court renders a judgment and there is a previous o Preliminary injunction – object is just to preserve status quo
attachment, duly registered, what will the subject of execution?
o 1. If there is money duly garnished or obtained through sale of
perishable goods, the money will be
applied.
 What does this refer to?
 If the property attached is perishable or the
sale of the property will best subserve the
parties‟ interests, as determined by the
court, the property can be sold in public
auction
 The proceeds will be deposited in court and
take the place of the property
o 2. If not sufficient, sell real or personal property that has been
attached. These have to be sold on public sale. Procedure is
consistent with Rule 39.
o 3. What if the properties attached are not sufficient to
satisfy the judgment?
 Court proceeds with ordinary execution to cover the
balance.
 What if the defendant filed a counterbond?
o Recovery can be sought against it; it takes the place of the
property sought to be attached, but released by the CB

Rule 58 - Injunction

 N.B. Rule 58 has been amended on Dec 2007. It was amended

alongside Rules 41 and 65.
 What was affected by the amendment?
o Rule 58, Sec. 5. [Discussed later on]
 Bacolod City v. Labayo: Can there be a principal action for
injunction?
o Yes. There can be a principal action for injunction. There is a
distinction made in this case between principal action and
 What are the requisites for a PI? the presence of that person
o 1. A clear and unmistakable right  B. Notice preceded or contemporaneously
accompanied by summons
o 2. The right has been violated, and invasion has been
material and substantial
 What are the exceptions to the
requirement that summons are required
 Borromeo: Where the parties stipulated in their to be served prior or
credit agreement, PN, contract, etc., that the contemporaneously?
mortgagee has the right to foreclose in case of
o 1. Cannot be served personally or
default, this defeats any future claim for the
through substituted service
issuance of a PI.
despite diligent efforts
o 3. There is an urgent and permanent necessity for the writ
o 2. Defendant is a resident
to prevent serious damage
temporarily absent from the RP
 How is a WPI granted?
o 3. Defendant is a nonresident of the
o 1. Verified application showing facts entitling applicant to RP
the relief demanded o 4. Action is in rem or quasi in rem
o 2. Bond (to cover for damages to other party in case the
 C. Notice with copy of the initiatory pleading + bond
WPI/TRO is wrongfully issued)
o 4. Hold a summary hearing conducted within 24 hours after the
o 3. If the application for WPI or TRO is alongside a complaint
sheriff‟s return of service and the records are received by the
or initiatory pleading,:
branch selected to hear it
 A. Notice given to party to be enjoined
 Types of PI?
 Raffle case only after such notice, and in
 o 1. Preliminary injunction to prohibit or stop (status quo ante) or w/o a period.
o 2. Preliminary mandatory injunction – an injunction which o Unless you obtain a preliminary
requires you to do something or perform something that you do injunction
not ordinarily want to perform, in order to maintain the status
quo
 Estares: A writ of PI based only on initial and incomplete evidence
– is this allowed? What kind of evidence is required?
o You don‟t need to present your entire case. Only a sampling of
evidence is needed, to give the court an idea to justify why you
need to obtain the PI.
 Can a judge issue a PI without a notice and hearing?
o No. It‟s an absolute no. (Dela Paz)
 Can the court issue a TRO without notice and hearing?
o Today, yes. (This is the amendment)
o 1. 20 day TRO ex parte – if great and irreparable injury
o 2. 72-hour TRO ex parte – if the matter is of extreme urgency
and the applicant will suffer grave injustice and irreparable
injury
o N.B. “Ex parte” means no notice and hearing
 What are the differences between the 20 day and the 72 hour
TROs?
o 1. Only an executive judge of a multi-sala court, or the
presiding judge of a single-sala court, there can issue a 72
hour TRO
o 2. Count the 20 days from service to the party or person to be
enjoined; count the 72 hours from issuance of the TRO
 N.B. this is because the 72 hour TRO can precede
summons, which must still be complied with and
served after
o 3. What is heard/determined within the period
 Within the 20 day period, the court must order the
enjoined person or party to show cause at a specified
time and place which the PI should not be granted
(and the court decides);
 Can a 20 day TRO be extended?
o No, it automatically expires w/
  Within the 72 hour period, the court determines
whether extension to a 20 day TRO must be
granted in a summary hearing
 How long is a TRO that was issued by a higher court?
o CA: 60 days from service on the party enjoined
o SC: indefinite
 Can a preliminary injunction be issued without notice and
hearing??
o No. NEVER. There must always be notice and hearing.
o The hearing is always summary in nature whether TRO
or preliminary injunction.
 Can an injunction have an effect if enforced outside the
judicial district? (ex. enforced in Makati and Mandaluyong, and
the judge is stationed in Marawi)
o No. A writ can only be issued in the judicial region.
 What is the purpose of the bond?
o To protect the person against whom the writ of injunction
has been issued. Garcia: Posting of a bond is a condition
sine qua non to issue a writ of PI.
o The posting of a bond in connection with PI does not operate
to relieve the party obtaining the injunction from paying
damages – the bond only gives additional protection in favor of
the defendant
o So Rule 57, Sec 20 also applies here. Read above, on the
rule re: damages.
 Aquino: Dissolution of the injunction, even if it was
obtained in good faith, amounts to a determination
that it was wrongfully obtained. A right of action
against the bond accrues.
 A court issued a writ of PI. What is the duty of the court in relation
to the main case?
o The main case has to be decided within 6 months or else the
judge can be disciplined by the court. This is a new provision.
 SC Circular (2007): On issuance of PI on extrajudicial and judicial
foreclosure cases.
o 1. Today it is not enough to say that you have paid the amount.
Mere allegation of payment without showing actual payment is
not basis for issuance of PI.
 o 2. Mere claim/allegation that the interest is unconscionable or injunction, it has to be statement + counterbond.
excessive does not justify issuance of the PI unless the legal  What is the prohibition under RA 8975?
interest is paid. o There can be no PI or TRO against acquisitions, bidding or
 What is a Status quo order? awarding of contracts, commencement or execution of such,
o It is not a preliminary injunction. Minimum requirements of
TRO/injunction do not apply to status quo orders.
o It can be applied in TC or appellate court. A status quo order
can be issued without a bond, or without a fixed term.
o BUT in the SC Circular (2007): requirements for TRO must
apply to status quo orders if issued for judicial or
extrajudicial foreclosure of mortgage.
 Can the court require you to post a bond for a TRO?
o Yes.
 If you file a petition for certiorari against the PI, does it suspend
the main case?
o No, it does not. This is an amendment introduced in 2007.
o Can you extend the period by which you can file a petition
for certiorari (60 days)?
 No more.
 Before the 2007 amendment, you can ask for a 15
day extension. This was removed already.
 How can you deny a writ of PI or TRO?
o Prove insufficiency of the application for injunction.
o This is just a ground to deny but not to dissolve; so once the
WPI or TRO is granted, insufficiency is not a ground anymore.
 How can you dissolve a writ of PI or TRO?
o 1. File affidavits showing there is no reason for the PI
o 2. File a counterbond + an affidavit showing that he will
suffer more damage than applicant will
 Is a mere counterbond enough?
 No
 Is the mere statement enough?
 No
o N.B. Note the difference with preliminary attachment, where a
counterbond alone can dissolve the writ. In preliminary
 termination or rescission of the same, or other similar  What are the requirements?
lawful activities in relation to government projects.
o 1. The applicant files a bond
o Any TRO or PI issued is null and void.
o 2. The receiver must also file a bond and take oath
o What is the exception?
o N.B. TWO bonds (applicant and receiver himself)
 Except when issued by the
 What are the ways to dissolve the bond?
SC. Rule 59 – Receivership o 1. Show no cause
o 2. Post a counter bond
 The only provisional remedy that can be applied for post-judgment  What are the general powers of a receiver that need no court
and even if it is already final and executory. approval?
 Grounds:
o 1. Take and keep possession of property in controversy
o 1. There is interest in property which is in danger of being lost
 Receive rents
o 2. In a foreclosure action, and the property is in danger
o 2. Collect debts due on the property, estate, person, fund, etc.
of being wasted/dissipated, and that its value will not be
sufficient to cover the value of the debt  Compound for and compromise these
 Or there is a stipulation for such in the  Make transfers
mortgage contract  Pay outstanding debts
o 3. Preserve property during pendency of appeal, to dispose o 3. Divide money and other property remaining among persons
of it according to judgment, to aid execution if execution is legally entitled
returned unsatisfied, or to carry judgment into effect o 4. Perform acts authorized by the court
o 4. Other reasons the court finds convenient and feasible
 What powers of the receiver need court approval? ex. Bureau of Forestry) be subject to a writ of replevin?
o 1. Bring and defend actions in his name o No. It is under lawful process.
 N.B. need court approval for either  Can one quash a writ of replevin?
o 2. Invest the funds – must have written consent of the parties o Of course, it may be quashed or dissolved
to the action
 When is receivership terminated?
o When there is no more need for a receiver.
 1. Motu propio determined by the court or
 2. Upon motion of either party
o What happens?
 After due notice to all interested parties and
hearing, settle accounts of receiver, and direct
delivery of property.
 The receiver receives reasonable

compensation. Rule 60 – Replevin

 What are the contents of the affidavit?

o Memorize this for the bar
o 1. The applicant is the owner of the thing
o 2. Property is wrongfully detained
o 3. Property is not lawfully taken
o 4. The fair market value of the property
 Can property held as evidence in criminal case be subject to a writ
of replevin?
o Superlines: NO. In the affidavit of the affiant, the property is
not subject of custodia legis, execution, or attachment. The
deprivation, to be validly subject to replevin, must be illegal or
unlawful.
o Property can be said to be in custodia legis, not only when it is
in official custody, but if it pursuant to a legal order in a case
 Danao: Can you subject to replevin a motor vehicle in custody of
another court?
o No. It is in custodia legis.
 Can goods under custody of an agency of the government (here,
 o How do you dissolve?
 1. If you want to regain immediately custody or
possession, you just simply post a counter-bond
 N.B. Take note. No need to oppose the
grounds, etc. Just post a counterbond.
 When can he post this counterbond?
o Anytime before the property
is delivered to applicant
 What is the time period between the
sheriff’s taking of the property and its
delivery to the applicant?
o 5 days. So this is the time frame
to object.
 2. Attack the sufficiency of the bond
 Here, you cannot effect an immediate
release
 What is the value of the bond?
o This is the only provisional remedy where
the bond/counterbond is double the value of the
property.
o Pinggol: A replevin bond was deemed invalid because the
officer who signed the bond is without authority to do so from
his company.
 When can replevin be applied for?
o You can only apply for this at any time before an answer.
o For the other provisional remedies, you can apply
anytime while the action is pending (or for receivership, even
after)
 What is your remedy after an answer is filed?
o You file an attachment, but the effects are different.
o What are the differences?
 1. In replevin, the property subject of the action is
taken. In attachment, properties, whether real or
personal are attached to secure the judgment
 2. In replevin, when the writ is served, the sheriff
takes possession, and delivers it to the applicant
(unless a counterbond is filed within 5 days). In
attachment, personal property is taken by the sheriff
and delivered to the court; for real property, the sheriff
annotates at the dorsal portion of the title.
 Note that the main action is recovery of possession of property. The o 2. Adverse party files verified comment within 5 days
issuance of a writ of replevin is just a provisional remedy. o 3. Set for hearing not more than 3 days thereafter
 Once the sheriff takes the property what is his duty? o N.B. only provisional remedy that cannot have ex parte hearing
o He delivers it to the applicant for the writ of replevin.
o How long does the adverse party have to object?
Within 5 days of taking, can object to sufficiency of
the bond
 Can there be a principal action for replevin as a provisional
remedy?
o No, just like everything else, it is a provisional remedy.
o BUT because of the ADR rules, you can file any provisional
remedy as a main action in aid of an arbitration clause. (!!!)
 In attachment and replevin, there are rules for third party claims.
What are these?
o 1. Rule 39 Sec 16
o 2. Rule 57 Sec 14
o 3. Replevin
o Note that unlike execution, in attachment and replevin, a third
party claimant can vindicate his right in the same or a
separate action. In Rule 39, a third party claimant can only
vindicate his right in a separate action, because judgment is
final and executory.
o What is the rule on intervention (Rule 19)?
 You can intervene anytime before judgment. But this
only applies to trial courts.
o What about appellate courts?
 You can still intervene, but subject to the appellate
court‟s sound discretion.

Rule 61 – Support pendente lite

 When can you apply for this?

o Anytime before final judgment
 What is the procedure?
o 1. Submit verified application for SPL stating grounds,
attaching affidavits, depositions, documents
 This is the only provisional remedy that does not require a bond. o 2. Parents
The four others require a bond. The person applying for support o 3. Grandparents
obviously needs money. o 4. Guardian
o N.B. For all these other provisional remedies, just follow o 5. State
Rule 57 Rule 23. The general rule is you can only recover
damages from a bond while the action is pending.
 What if a person believed that he is the father and he gave
support? Then, it turns out he is not the father.
o So what is the rule if you are wrongfully compelled to
give support?
o If the action is still pending, you can apply for reimbursement in
the same action.
 You don‟t recover damages. You ask
for reimbursement.
o If there is a judgment already, you can apply for it in a separate
court proceeding.
 What if there is refusal to comply with court order to give support?
o The court can order execution.  Can you dissolve support pendente lite?

o There are only two instances where there can be writ o When there is no reason to give support pendente lite.
of execution even when there is no final judgment:
 1. Support pendente lite
SPECIAL CIVIL ACTIONS
 2. Indigent (which the court finds that you are not
an indigent and requires you to give filing fees) Rule 62 – Interpleader
 Who can apply for support in criminal cases where the accused is
charged with a crime where a child is borne by the offended party?  When is interpleader proper (Requisites)?
o 1. Offended party
 o 1. Conflicting claims on the same subject matter construction
o 2. Made against a person who: o 3. There must have been no breach of the documents in
question
 Claims no interest over it
 Or an interest which is not disputed by the claimants
 Malana: Reiterates that declaratory relief
presupposes no actual breach. An action for
 What is the procedure?
o 1. Action for interpleader brought to court
o 2. Court issues order requiring parties to interplead
 May ask for subject matter to be delivered/paid to
court
o 3. Issue summons to parties, with complaint and order
o 4. Parties can file:
 MTD (if denied, at least 5 days to file answer)
 Answer
 Can there be a counterclaim in an interpleader case?
o Yes.
 Stuff to remember:
o In the interpleader case, the one filing the case was not
violated. There was no breach.
o The person filing the action can either have an interest which is
not in conflict with the claiming parties, or has no interest at all.
 Are there filing fees for an interpleader action?
o Yes.
o However, the applicant, not being violated nor is he a Real
Party in Interest – is entitled to a lien on the judgment award
 What is the difference with intervention?
o In intervention, there is already a pending case. Here, you
initiate the action.

Rule 63 – Declaratory relief and Similar Remedies

 What are the requisites of declaratory relief?

o 1. Subject matter is a deed, will, contract, or other written
instrument, statute, EO, or regulation
o 2. The terms of the documents are doubtful and require judicial
 declaratory relief must be dismissed if there is  What are the “other similar remedies” covered by par. 2?
a pending action for unlawful detainer. o 1. Removal of cloud
o 4. Actual justiciable o 2. Quieting of title
controversy o 5. Ripe for judicial
o 3. Reformation of instrument
determination o 6. Adequate
relief is not available  When can you reform?
 Bottom line: purpose is for interpretation and determination of validity.  There must be mutual mistake.
It‟s not about constitutionality.  Can there be execution in a declaratory relief case?
o Also, there must be no breach o Yes, nothing prevents the filing of a counterclaim in a
 What if there is breach? declaratory relief, and there can be execution pursuant to this.
o There will be conversion to an ordinary civil action. This is  Who intervenes when there is challenge against validity of statute,
the only such action that can be converted. EO, or other government regulation?
 Do you need to pay filing fees when it is converted? o Solicitor General
o Yes, you need. o What about local government ordinances?
 Which court has original jurisdiction?  LGU prosecutor or attorney
o RTC.  Solicitor General as well, if there is challenge against
o What if there is an allegation of unconstitutionality? constitutionality

 The RTC has no exclusive jurisdiction; you can file Rule 64 – Review of judgments and Final orders of COMELEC/COA
it elsewhere like the SC. The RTC only has
exclusive jurisdiction if it is a pure question of  What is the nature of this petition?
declaratory relief
 o This is actually a petition for certiorari. If you file under Rule  When is the case deemed submitted for decision?
64, it will be named a Petition for Certiorari o Upon submission of the comment by the respondent
o This has a limited application; it only covers decisions by o Unless the SC requires submission of memoranda or requires
the COMELEC and COA. oral argument
 What is the difference in period for a Rule 64 petition as compared
to Rule 65?
o The period to file a petition for certiorari under Rule 64 is 30
days, non-extendable.
o What if there was an MR/MNT and it was denied?
 If there is an MR or MNT and denied, you get
the period remaining which will always be at least 5
days (“partial fresh period”)
o N.B. this is unlike the 60 day period for Rule 65
o N.B. for Rule 65, you always get the full 60 days period even
after denial of MR/MNT
 What must be the nature of the attachments?
o As with Rule 43, all the attachments in Rule 64 are certified
true copies, because you involve Quasi Judicial Agencies.
 Must it be verified?
o Yes.
 Is a CNFS needed?
o Yes.
 After filing the petition and serving a copy with the adverse party
and the Commission, what is the next step?
o 1. If SC finds the petition sufficient in form and substance, it
orders respondents to file comment within 10 days from notice.
 N.B. Comment: 18 copies too, with CTC of record and
supporting papers
o 2. SC may dismiss the petition outright if:
 A. It is not sufficient in form or substance
 B. it was filed manifestly for delay
 C. Questions raised are too unsubstantial to warrant
further proceedings
 Does the Rule 65 petition stay execution of judgment?
o No, unless the SC directs otherwise
Rule 65 – Petition for certiorari, mandamus, prohibition
 First rule of Rule 65: you do not talk about Rule 65. Second rule of
Rule 65: you do not talk about Rule 65. Third rule of Rule 65: You
have to fight on your first night.
 Real first rule of Rule 65: this is not an appeal
 Elements of certiorari?
o 1. GADALEJ
o 2. No plain, available, speedy ordinary remedy
 What is prohibition? Should there be GADALEJ?
o Yes. The same is required – GADALEJ. No plain,
available, speedy ordinary remedy.
o It is the same as certiorari.
o In prohibition, you cannot prohibit an act that has already
been performed. It is already moot.
 Certiorari – whose decision can you question?
o Judicial or QJA
 Prohibition – whose decision can you question?
o Judicial, QJA, or ministerial
 How does mandamus differ from prohibition?
o Limited to ministerial functions.
o Here, you are requiring him to perform.
 Can the OMB be compelled by mandamus to file an information?
o No. It is not ministerial.
 If you entered into a contract with X to build a house for you, and X
received the advance of the contract price, and X did not build
the house, can you compel his performance by mandamus?
o No; it is not a ministerial function. It is a contractual obligation
– specific performance is the proper remedy.
 How can an OMB judgment be reviewed?
o Generally, under Rule 43.
o However, if the decision of the OMB in a criminal case is
tainted with GADALEJ, Rule 65 Certiorari can be filed with SC.
 Must a petition under Rule 65 (C, P, or M) be verified?
o Yes.
 What must be included too?
o 1. CNFS
 o 2. For certiorari or prohibition, the copies of order, resolution,  No.
or judgment (for certiorari) questioned, and all pertinent  What happens after comment is filed?
documents
o 1. The court may hear the case or require submission of
 What is the period to file the petition?
memoranda
o 60 days from the notice of judgment, order, or resolution
o What if an MR or MNT is denied?
 Count 60 days from denial of the motion (real fresh
period rule)
 N.B. this is different from Rule 64 where only the
remaining period not less than 5 days would remain
 Where do you file a Rule 65 petition?
o A. For MTC, corporation, board, officer, or person:
 RTC
 It could be in the CA or SB, whether or not the same
is in aid of the court‟s appellate jurisdiction
o B. Act or omission of a QJA:
 CA only
o C. Election cases involving act or omission of MTC or RTC:
 COMELEC, in aid of appellate jurisdiction
 [N.B. based on 2007 amendment]
 Who defends the questioned judgment, order, etc?
o The private party interested in the judgment
o The public party will be nominally made a party but shall not
appear in or file an answer/comment to the petition or file a
pleading
 What does the court do after filing of the petition?
o If sufficient in form and substance, issue an order requiring
respondent/s to comment on the petition within 10 days from
receipt of copy
o What is the rule if the petition is filed before the CA or SC?
 Before giving due course, it can require the
respondents to file their comment to the petition and,
if it wants to, a reply from the petitioner
 Can the respondent file a motion to dismiss
instead?

80
 o 2. Or it may dismiss the petition if it is found to be:
 A. Patently without merit
 B. prosecuted manifestly for delay
 C. Questions raised are too unsubstantial to
require consideration
 Does Rule 65 suspend the principal case?
o No, unless the court where the petition is filed issues a TRO
or preliminary injunction
o If there is no TRO or PI, the public respondent must
proceed with the principal case within 10 days from the
filing of the petition
 N.B. else, administratively liable
 What are the consequences of filing a petition patently
without merit or manifestly for delay, or questions are too
unsubstantial for consolidation?
o 1. The court may award in favor of respondent treble
costs solidarily against petition and counsel
o 2. Counsel may be subjected to administrative sanctions
o May the court motu propio impose disciplinary
sanctions and measures on erring lawyers?
 Yes, based on res ipso loquitur
Quo Warranto
 Who commences an action for quo warranto?
o Liban: Generally commenced by the government.
o 1. President, directing the Sol-Gen
o 2. Sol-Gen, in the name of the government, when he has good
reason to believe
o 3. Upon the relation of another person, telling the Sol-Gen to
institute the action
 What is the special requirement if it is upon the
relation of another person?
 There must be approval by the court. If not
approved by the court, the Sol-Gen will not
file.
 N.B. also, the Solicitor General will require the other
person to file indemnity for expenses/costs of the
action to the court

80
  N.B. the respondent will also be given prior notice and may demand books and papers in respondent‟s custody
the chance to be heard prior to the court giving  What if the respondent refuses?
approval for the filing  Contempt of court
o 4. The person instituting quo warranto in his own behalf must o B. Action for damages against usurper
show that he is entitled to the office in dispute.
 This is where the person aggrieved himself files
 What should he show?
 1. His claim
 2. And that he is entitled to the office
 When can you file it?
o 1. Usurpation of public office, position, or franchise
o 2. Public officer who does or suffers an act constituting ground
to forfeit office
o 3. Association acting as a corporation but not duly incorporated
 Quo warranto is also available if a government
corporation has offended against its chapter.
 It is a prerogative writ, where the government can exercise its right
to demand proof of what right a person has over office
 What is the venue?
o 1. RTC where respondent resides
o 2. CA
o 3. SC
o This is another example of concurrent jurisdiction
o What is the special rule?
 If it is the Sol-Gen who institutes the action, it can be
filed in the RTCs of the City of Manila
 What is the period to institute an action for quo warranto?
o One year from happening of the event (usurpation)
 Can you recover damages from a quo warranto judgment?
o One year from entry of judgment entitling petitioner to the
position
 What are the rights of the person adjudged entitled to the public
office?
o A. After taking oath and executing any bond required by law,
1
 If there is a dispute between and among the Board of Directors of
a private corporation, one group claiming that they have been
usurped, is the proper remedy quo warranto?
o No. This is an intra-corporate dispute to be filed in the
regular courts (RTC) having original jurisdiction.
 Distinguish from Quo Warranto in election cases:
o 1. Filed by any registered voter in the constituency
o 2. On grounds of a) ineligibility or b) disloyalty to the RP (ex.
Having a green card)
o 3. Within 10 days from proclamation of
results Rule 67 – Expropriation
 Who can expropriate?
o National government
o LGU
o Instrumentality of government
 Veluso v. Panay:
o LGUs by themselves have no inherent power of eminent
2
domain. Thus, strictly speaking, the power delegated to the
LGUs is “inferior domain.”
o But an LGU can expropriate.
o What are the requisites before an LGU can exercise
eminent domain?
 1. Public use, public purpose, public welfare
 2. Ordinance by local legislative body authorizing
local chief executive to exercise eminent domain
 3. Just compensation
 4. Valid and definite offer previously made to owner
but not accepted
 What must be alleged in the expropriation complaint?
o 1. Right and purpose of expropriation
o 2. Description of the property sought to be expropriated
o 3. Names of persons owning or claiming to own it,
or possessing it, or having interest over it
o N.B. it must be verified
 Can a complaint for expropriation be withdrawn?
o It can be withdrawn for as long as there is no judgment yet
 o Once there is an order for expropriation, it can no longer be  When is there immediate entry allowed for expropriation under
withdrawn Rule 67?
 What if the defendant has no objection? o 1. Filing of complaint + due notice to defendant and
o He files and serves a notice of appearance and manifestation
only. Thereafter, he is entitled to notices.
 What if the defendant has objections?
o He files and serves an answer within the time stated in
the summons, stating his objections.
o Can there be a counter-claim, cross-claim, or third
party complaint?
 No.
o Can there be amendments to the answer filed?
 Generally no, but in the interest of justice, the court
may allow an extension of not more than 10 days.
o N.B. Even if the defendant initially objected and filed an
answer (not a manifestation/appearance), he is still entitled to
just compensation.
 When does an order of expropriation issue?
o If the objections and defenses are overruled, or when there is
no defendant, the court issues an order of expropriation
o May the order of expropriation be appealed?
 Yes, but it does not prevent the court from entering
the second stage (just compensation)
 After order of expropriation, what is the second stage?
o Determination of just compensation
o The court appoints not more than 3 commissioners to
ascertain the value of the property.
Non-compliance with this step is a denial of
due process
 When can the plaintiff enter the property and appropriate it for
public use?
o In general, after judgment and payment of just compensation
as determined by the court
o Or the plaintiff can continue its possession of the property if
it made a prior deposit and entry
 N.B. see below
 o 2. Deposit with authorized government depositary an
amount equivalent to the assessed value of the property
 When is there immediate entry allowed for expropriation under
the LGC?
o 1. Filing of complaint for expropriation sufficient in form
and substance and
o 2. Deposit of amount equivalent to 15% of FMV of the
property to be expropriated, based on latest tax declaration
 When is there immediate entry allowed for expropriation under
RA 8974 (acquisition of property for right of way or for
government infrastructure projects)?
o 1. Filing of complaint + immediate payment of 100%
assessed value of the property and the improvements (same
rule as Rule 67)
o 2. If there is no zonal valuation AND the expropriation is
of utmost importance: Filing of complaint + payment of
proffered value of the property
 What is the general rule for valuation?
o Rule 67, Sec 2 provides that for real property, it must be
assessed value, in general. If it is personal property, assessed
too
 Government entered property (took it) and caused demolition of
improvements. But before there was order for expropriation, the
government said “huwag na lang.” Can the government withdraw?
o Yes. But it is liable for damages.
 What if there is a subsisting contract between government and the
private person?
o There can be no expropriation contrary to that contract.
 What is the nature of determination of just compensation?
o It is a judicial function, which is why the judiciary still has
control over the commissioners.
 In traversing a lot with transmission lines, is there expropriation or
easement?
o There is expropriation (NPC v. Manubay)
 What is the nature and limitation of “public purpose”?
o Mactan Cebu Airport: When you say “public purpose,” it must
be the purpose stated, and not another, even if public too
 o The acquisition of government of property is limited to the payment?
public purpose stated, because it is not a simple purchase in  Tender in court
fee simple, unlike in the normal purchase of property.  Does appeal stay entry by the plaintiff?
 How is just compensation ascertained? o No.
o 1. Court appoints 3 commissioners
 Copies of order served on the parties
 Objections to appointment of commissioners must
be filed within 10 days of service
 Resolved within 30 days after all commissioners
have received copies of the objections
o 2. Commissioners take oath
o 3. Commissioners receive evidence
 Consider consequential damages and
consequential benefits
 N.B. But in no case should he be deprived of actual
value of the property taken
o 4. Commissioners issue report
 Can they issue partial reports?
 Yes
 What is the time period for the report?
 60 days from notice of appointment
 What is the period to file objections?
 10 days from receipt of the report by the
parties
o 5. Court may accept, reject, or recommit the report
 N.B. can be in part or wholly
 When does the court do this?
 After expiration of 10 day period or after
submission of objections by all parties
 What else can the court do?
 Secure to the plaintiff the property essential
to the right of expropriation and to the
defendant, just compensation
o 6. Plaintiff may take over property after payment of costs
 What if the defendant refuses to accept the
Rule 68 – Foreclosure
 Two kinds of foreclosure?
o Judicial foreclosure (Rule 68)
o Extrajudicial (Act 3135)
 What is the difference?
o Rule 68 – you have to file a case, just like any other action;
you have to pay filing fees
o Act 3135 – you file a verified petition before the office of
the clerk of court, who is the ex-officio sheriff
 When is the EJF scheduled?
 After paying of incidental fees and fees
for publication
 What is diff between JF and execution?
o A. When there is award of JF, the mortgagor continues to be
in possession of the property.
 When does the purchaser at auction sale or
the last redemptioner get possession of the
property?
 Finality of the order of confirmation (or
expiration of redemption period if allowed
by law)
o B. In execution, the obligor continues to be in possession of
the property.
o C. What about Banking Law?
 In Banking Law, the possession is different. If the
lender is a bank and the borrower/mortgagor is an
individual – the one in possession after foreclosure
sale is the purchaser or the bank, if it purchased.
o D. What about Act 3135?
 After foreclosure, the mortgagor still possesses.
 Unless the lender is a banking institution – follow the
Banking law.
 How is the disposition of the proceeds of sale?
o 1. Deduct costs of sale
o 2. Pay to the person foreclosing the mortgage
o 3. Balance or residue to junior encumbrancers in order of
priority
o 4. If no junior encumbrancers, balance to mortgagor or his
agent
 o What if after execution, there is still a deficiency?  Metrobank case:
 Can execute against the mortgagor o When the complaint to enforce a repurchase, if filed within the
 What is the redemption period in JF? redemption period is treated as an offer to redeem and will
have the effect of preserving the right of redemption.
o Equity of redemption: period 90-120 days.
 This is just the general rule. If there is a law giving a
longer period of redemption for the mortgagor, then
that prevails.
o In execution in Rule 39?
 Redemption is one year.
o In Act 3135?
 Redemption is one year.
o Bank as lender and mortgagor/borrower is a corporation?
 90 days or registration of certificate of sale, whichever
comes first.
 Metrobank v. Tan:
o Filing of a civil case involving annulment and cancellation of an
EJF sale.
o The general rule in redemption – not enough to manifest intent
to redeem. It must be accompanied by actual and
simultaneous tender of payment. (This also applies even to
redemption in execution.)
 What constitutes payment for purposes of redemption?
o 1. The price which the purchaser paid for the property
o 2. Interest of 1% per month on the purchase price
o 3. Amount of any assessment or taxes which the purchaser
may have paid on the property
o 4. Interest of 1% per month on such assessment
 Distinguish a legal redemption from conventional redemption?
o Legal redemption is one that is within the period provided for
by law.
o Conventional redemption – beyond the redemption period, and
you still want to redeem, and you would like to agree on
a different price
 Governed by contractual law. So the redeemer
cannot insist on the calculation above
 Take note of the 2007 SC Circular re: TRO and injunction
of foreclosures [discussed in Rule 58]
 Different types of sale of property?
o 1. Ordinary execution sale
 Governed by Rule 39
o 2. Judicial foreclosure sale
 Rule 68
o 3. Extrajudicial foreclosure sale
 Act 3135
 What is the jurisdiction of courts in JF?
o “Any right title or interest over real property” depends
on assessed value. So decide whether it‟s RTC or MTC.
Rule 69 – Partition
 In the last five years, there were questions in the Bar exam, but
they involved EJ partition, not J partition.
 Compare an EJP from a JP?
o JP – covered by Rule 69
 You must implead all the co-owners
because everyone is an indispensable party
o EJP – covered by Rule 74
 What are the two stages in JP?
o 1. Determination of existence of a co-ownership
 The co-ownership is created by agreement of the
parties or by operation of law
o 2. Partition of the property
 Who institutes action for JP?
o Any co-owner
 What is the role of the commissioner?
o There is a need to refer the matter to a commissioner. But
remember that under this rule, it is NOT mandatory. If the
parties agreed, the matter will not be referred. (As compared to
expropriation, where failure to refer to commissioners is a
violation of due process)
 Step-by-step example of JP:
o There is a co-ownership created by death (inheritance)
o An action was instituted under Rule 69.
 o The provision of law does not provide for an answer. But in the  Can JP cover both real and personal properties?
absence of rules, there is an answer. So file one. o Yes.
o The pre-trial.
o Then parties can agree. If they do, there will be a judgment Rule 70 – Forcible entry and unlawful detainer
based on the stipulation of the parties.
o If there is lack of agreement, refer to commissioners.
 What if the property cannot be divided without
prejudice to the interest of the parties?
 Commissioners can assign the property
to one party, who reimburses the others
 If one party asks that the property be sold
instead, the commissioners sell it
 What is the procedure for approval of the
Commissioners’ report?
 Same as expropriation (10 days to object
and court may accept, reject, etc. it)
 Examples of EJP:
o 1. Affidavit of self-adjudication
o 2. EJP upon a notarized public instrument
o 3. Even if there is petition for JP, but the parties agreed, it will
be treated as an EJP
 Needs publication
 Do you need a bond?
o For JP, no.
o For EJP, yes, for personal property.
 Requisites of EJP?
o 1. There is no will
o 2. There is no debt
o 3. If there are minors, there is appointment of guardians
 Until what period can you contest the distribution of the
estate under EJP?
o Within a period of 2 years.
 Can you contest a JP?
o Paramount rights cannot be prejudiced, even if there is
judgment already
 Distinguish.
o Forcible entry – possession by reason of force,
intimidation, strategy, threat, or stealth
o Unlawful detainer – previous lawful possession but by
violation of K or expiration of the period, it became unlawful
 What is the most important allegation in FE cases?
o Prior physical possession and when
o This must be proved because it is the way the 1 year period
is counted
 What is the most important requirement in UD cases?
o A demand letter is a specific requirement
o 1. There is a demand to pay unpaid rentals or comply
o 2. AND vacate
 There must always be a demand to vacate
for unlawful detainer
o What if the demand letter is defective?
The complaint can be dismissed. A defective
demand letter is jurisdictional.
o When is demand not required?
 Expiration of contract, because there‟s nothing left to
pay
o When should demand to vacate be given prior to action for
unlawful detainer?
 15 days prior in case of land
 5 days prior in case of buildings
 What is the period to file this action?
o Within 1 year of entry into the property for forcible entry
 Except if done by stealth – 1 year from discovery of
entry and prohibition
o Within 1 year of the last demand for unlawful detainer
 Can you touch on the question of ownership in FE and UD cases?
o Yes, but only to preliminarily determine who is entitled to
possession.
o But the determination is not binding /prejudicial to future
questions of ownership.
 Salient portions of procedure:
o In ejectment cases, unlike ordinary cases, the court can
dismiss the case outright.
 o Absence of an answer will not lead to default, but a judgment TRO from the next level court, it can be stayed.
of the court. No need to declare the defendant in default.  What is the mode of appeal from RTC decision in exercise of its
o There is a Preliminary conference, just like summary appellate jurisdiction?
procedure. But after preliminary conference even without o Petition for review
position papers, the court can render judgment if it is already
satisfied.
o Third chance to make a decision: 30 days from filing of last
judicial affidavit or position paper
 How do you stay execution of the MTC decision?
o 1. File notice of appeal and pay filing fees
o 2. Post a supersedeas bond
 Covers arrearages
o 3. Pay the monthly rentals before the trial court
o What if the defendant’s appeal is clearly frivolous or
dilatory or the plaintiff’s appeal is prima facie meritorious?
 Upon motion of the plaintiff, within 10 days of
perfection of appeal, the RTC may issue a writ
of preliminary mandatory injunctions restoring the
plaintiff to possession of the property
 Can you file an MR in an ejectment case?
o No, it is a prohibited pleading.
o Don‟t file an MR, file a notice of appeal.
 Are you entitled to a provisional remedy?
o Yes. You can apply for a TRO or preliminary mandatory
injunction so you can recover possession in the pendency
of the case.
o But you have to file it within 5 days from filing of the complaint.
 In the rule on property, it says 10 days.
 What prevails: 5 days.
 Can you appeal?
o Yes. The appeal will be elevated to the RTC.
o The decision of the RTC, once final, is executory and cannot
be stayed.
o Even an appeal will not stay the execution.
o Benedicto v. CA: If you can get a preliminary injunction or
 o Can you file an MR before you file a petition for review?
 Yes, because RTC is an appellate court and
not subject to rules of summary procedure.
 What is accion publiciana?
o Action to recover right to possess property
o Filed in the RTC or MTC depending on property value
o File within 10 years after possession was lost
 What is accion reivindicatoria?
o Action to recover ownership of property
o Follow same valuations for jurisdiction
o Filed within 10 years or 30 years, as the case may be (if
the defendant is in GF or BF)
 Usually, ejectment suit is in personam. But who else can be
bound by the judgment even if not impleaded?
o 1. Trespasser, squatter, or agent of defendant occupying
the property to frustrate the judgment
o 2. Guest of the defendant or member of family
o 3. Sub-lessee, co-lessee
o 4. Transferee pendente lite or privy of defendant
 Will the filing of another action for annulment of sale,
cancellation of title, etc. suspend the action fro ejectment?
o No. Note that the other actions all deal with ownership and
ejectment is just a matter touching on possession so the
actions can coincide.
Rule 71 – Contempt
 What is direct contempt?
o An act of disrespect in the presence of, or so near the court of
a judge
o It MUST be within the four corners of his office
o Ex. Refusal to take the witness stand or refuses to take an
oath. Or wearing shorts in court. Or your phone keeps
ringing.
 What is the nature of direct contempt?
o Direct contempt is summary. You will not be asked to explain.
 Distinguish from indirect contempt.
o Contempt which is in violation of order or process of court.
 Ex. failure to comply with subpoena of court.
o There is notice and hearing.
 How do you charge?  Penalty for indirect contempt?
o For direct contempt, there is no need to charge. You just need o RTC or up. Imprisonment not exceeding 6 months, Fine not
to disobey or disrespect. exceeding 30,000.
o For indirect contempt, there are two ways: o MTC not exceeding 1 month. Fine of 5,000 pesos.
 1. Formal charge of the judge motu propio
 2. Upon a verified complaint filed and
docketed separately
o Where do you file case for indirect contempt?
 If against an RTC, file in the RTC
 If against MTC, either:
 RTC
 Or MTC, subject to appeal to RTC
 X had a main case pending in an RTC branch in Makati. X obtained
a preliminary injunction but the other party refused to comply.
Can he file a motion for indirect contempt in the same court that
issued the injunction?
o No, a motion for indirect contempt is NOT a remedy now.
o You file a verified petition (separate case).
o After it gets raffled to another branch, you can either:
 Let them proceed separately
 File a motion to consolidate.
 What is your remedy for direct contempt?
o It‟s immediately executory, so you can stay its execution by
posting a bond.
o File a petition for certiorari or prohibition based on GADALEJ.
 What is your remedy for indirect contempt?
o Remedy is an appeal.
o Judgment will only be stayed from being executed by posting a
bond.
 What are the penalties for direct contempt?
o If in the RTC or higher court, imprisonment up to 10 days.
Fine not exceeding 2,000.
o In MTC, imprisonment not exceeding 1 day. Fine not
exceeding 200.
 When is imprisonment imposed?
o When the contempt stems from the refusal or omission to
do an act which is yet in the power of the respondent to
perform – he may be imprisoned by the court until he
performs it
 What is difference between criminal and civil contempt?
o Criminal contempt disrespect of the
court/judiciary o Civil contempt violation of right of
other party
o Can there be administrative contempt? See below (QJAs)
o In case of absence of rules in QJA, what is the rule?
 Venue is RTC where the contemptuous act was
performed (default)
 Rules of Court apply
PART II: CRIMINAL PROCEDURE
General matters, jurisdiction
 When did Rules on Criminal Procedure take effect?
o Dec 1, 2000
 What is the rule on venue and jurisdiction?
o VENUE IS JURISDICTIONAL. The place of
commission determines jurisdiction.
o Contrast with civil cases where these are separate concepts.
o The crime of stabbing was committed in Makati; where
can it be filed?
 ONLY in the courts of Makati.
o What is the exception?
 Transitory and continuing offenses, wherein one
or more of the elements happened in more than
one venue.
 Ex. Estafa, where the elements may be committed
in different places (ex. misappropriation in one place
and damage in another).

Ex. BP22 either place of issue, or where the
check bounced
 Can an offense be committed outside the Philippines yet be filed
here?
o Yes.
 o 1. Exceptions under article 2 of the RPC pertaining to the DAR Law
o 2. Under the Human Security Law (Sec. 49)
 Covers acts of terrorism
 Even if the act was committed outside the Philippines
(ex. before a consular or embassy of the Philippines
and it was an act against an officer, or in a Phil. Ship
or airship)
 Act against Philippine citizens or against a specific
ethnic group.
 But there can be instances where the hearings are conducted
elsewhere. Is this an exception?
o No, it‟s not an exception, even if there are instances like
the Ampatuan case being heard in Manila instead of
Maguindanao, or Mayor Sanchez case being heard in Pasig
instead of Laguna.
o What happened here was a mere transfer of venue. What was
transferred was the VENUE OF HEARING, but the place of
institution was still the place where the crime was committed.
o Where is this rule allowing transfer of hearing found?
 Found in the Constitution, and subject to approval of
the SC.
 What is the jurisdiction of courts under RA 7691?
o RTC: Penalty exceeds six years imprisonment
 W/N committed in MM or outside MM does not
matter at all.
 Regardless of fine or accessory penalty.
o MTC: Penalty does not exceed six years imprisonment.
o What if the penalty consists of just a fine?
 SC Circular 09-94
 If the fine exceeds 4,000 pesos, RTC has jurisdiction.
 If it does not exceed 4,000 pesos, the MTC has
jurisdiction.
 What is the jurisdiction of Special Agrarian Court?
o This is important because there can be a penalty for its
violation.
o DAR court has exclusive jurisdiction over all matters
  Exception to DAR‟s exclusive and original
jurisdiction are matters pertaining to just
compensation which goes to the courts
 Also and more importantly the RTC as special
Agrarian Reform Court also has exclusive and
original jurisdiction for prosecution of all criminal
cases under the DAR Law
 What is the jurisdiction of the Sandiganbayan?
o 1. The accused is at least a Salary Grade 27 employee.
o 2. And the office must be a constitutive element of the offense.
o Can you be charged of offenses falling under the RPC?
 Yes.
 Can there be instances when you are not SG27 and still be
under the SB jurisdiction?
o Yes, if there is an express provision.
o Serrano: UP Student Reagent is a public officer under
the SB‟s jurisdiction. She claimed that she did not get any
compensation and she was not a public officer. While the
first part of 4a only covers officials SG27 and above, the
second part covers officers whose positions may not be
SG27 and higher, but who are by express provision of law
are placed under the SB.
 Sec 4a(1g) gives the SB jurisdiction over officers in
State-owned universities [Student Reagent is part of
the board]
 What if the public officer is not SG27 but the office was a
constitutive element of the offense? Which court has jurisdiction?
o Regular courts, subject to appeal before the SB.
o Because the SB has both original and appellate jurisdiction.
 What if there is one public officer falling under the SB jurisdiction
and the other is not?
o They can both be charged as co-accused under the SB if at
least one is SG27.
o Esquivel v. OMB: There was a session in Sanggunian
involving both a Municipal Mayor and a Barangay Captain.
The MM was charged in the SB (since he was SG27) and the
Brgy. Captain was charged as co-accused, even if he was not
SG27. HELD: Valid, because at least one of the co-accused
was SG27.
 What if a co-accused is a private party? o Covers any act of malfeasance/misfeasance or omission by a
o Yes, the SB can have jurisdiction over him. public officer.

 Which court has jurisdiction to issue hold departure orders?

o Monejar: An MTC CANNOT. Only an RTC can issue a hold
departure order.
o Circular 39-97 – Hold Departure Orders by RTC only apply to
offenses cognizable by second level courts.
o But there are instances when the DOJ Secretary can issue
a hold departure order, right?
 Yes, but this is not under the law but under the
powers of the Executive.
 There must be probable cause for the DOJ to
issue one.
o What is the difference between a HDO and a watch list?
 HDO prevents you from leaving.
 Watch list – you‟re only being watched, but you can
leave.
 What determines jurisdiction of the court?
o It is determined by the allegations in the information
o And any one of the ingredients of the offense or the offense
itself must be committed within the territorial jurisdiction of
the court.
 What is the concept of a prohibited second MR?
o As a rule, a second MR is a prohibited pleading.
o Padiola: Such motion is prohibited and will not be allowed
except 1) for ordinarily persuasive reasons and 2) only
after express leave has been obtained.
o A wrong mode of appeal under Rule 56 will cause the
dismissal of the case.
o Does dismissal of a criminal charge cover dismissal of an
administrative case?
 No. It does not prevent the continuation of an
administrative action.
 The degree of evidence is different (proof beyond
reasonable doubt and substantial evidence)
 What is the jurisdiction of the OMB?
 o It does not have to be in related to an office. The mere
fact that you are a public officer means that the OMB has
jurisdiction.
o Is the OMB a court?
 No, it‟s an investigative body.
 What is the difference between the powers of investigation of
the OP and the OMB?
o Unlike the Office of the Prosecutor, which can only act upon
an affidavit complaint, while the OMB can investigate upon:
 Own initiative, even without a formal complaint
 Inquiry into acts of government
o Method of filing a complaint before the OMB is direct,
informal, speedy, and inexpensive. Just sufficient
information is needed.
 Which has primary jurisdiction to prosecute cases cognizable
by the SB – OP or the OMB?
o The OMB. The OMB has primary jurisdiction over cases
cognizable by the SB. He can take over at whatever stage
of investigation by another prosecutor.
 What is the Office of the Special Prosecutor?
o The OSP is merely a component of the office of the OMB and
may only act upon authority by the OMB.
o Without authority, the OSP cannot file an information
o The OMB‟s power to prosecute carries with it the power to
file an information
 How do you review the actions of the OMB?
o Ordinarily, it can be reviewed by the CA under Rule 43 (for
QJAs).
o If it involves a criminal case and there is GADALEJ, you go to
the SC.
o Which decisions of the OMB in administrative cases are
unappeallable?
 1. Public censure, reprimand,
 2. Suspension of not more than 1 month
 3. Fine of not more than 1 month salary
 Can a case be dismissed outright by the OMB?
o Yes, for want of palpable merit.
 Can the OMB prosecute cases within the jurisdiction of regular
courts?
 o The powers granted to the OMB are very broad, so it can.
 Who represents the people during trial?
o Office of the Prosecutor.  So who can conduct a preliminary investigation?

 Who represents the people during appeals? o 1. Prosecutor.

o Solicitor general  The old rule which includes an MTC judge

was already amended.
 What is controlling in determining the age of a child in conflict with
the law?
o 2. Ombudsman.

o Remember, below 15 years of age, he is exempt  Can there be direct filing in a Metropolitan TC (Met. C)?

o 15 to below 18, exempt if without discernment o No. Just a MTC (Municipal Trial Court).

 If with discernment, go through juvenile law o Because only MM/CCs have Metropolitan TCs.

o W hat controls is NOT the age at the time of promulgation of  What is the procedure in MM, requiring PI?
judgment, but the age at the time of commission of the offense. o The entire Rule 112, Sec. 3:
 What exceptional circumstances call justify an injunction to  1. File complaint
restrain criminal prosecution? (IMPT)  2. Investigating officer dismisses it or
o 1. To afford adequate protection to the constitutional rights of issues subpoena to respondent
the accused  3. Respondent submits counter-affidavit
o 2. Necessary for orderly administration of justice or to avoid  4. If subpoena impossible or no counter-affidavit,
oppression/multiplicity of actions investigating officer decides based on complaint
o 3. Double jeopardy is clearly apparent  5. If there is counter-affidavit, the officer can set up a
o 4. Charges are manifestly false and motivated by lust for clarificatory hearing
vengeance  6. Resolution
o 5. When there is clearly no prima facie case against the o N.B. Remember, all periods here are 10 days
accused and a motion to quash on that ground was denied
 What is the procedure in MM, not requiring PI?
Rule 110 – institution of criminal actions o Only Rule 112, Sec 3(A):
 1. File complaint
 When does distinguishing between offenses committed in o Then the prosecutor already decides
and outside of MM matter?
 On a BP 22 case, when is the prescriptive period deemed as
o If for purposes of jurisdiction of courts, there is no need to
interrupted? Upon filing the case in court or filing of the case
distinguish between MM and Outside MM (OMM), for purposes before the Office of the Prosecutor?
of institution of the criminal complaint, you will have to
distinguish between MM/Chartered City (CC) and OMM.
o Note that prescription is 4 years for BP 22. When Act 3326
was passed on 4 Dec 1926, preliminary investigation was
MM/CC OMM/OCC conducted by Justices of the Peace (equivalent of MTC
Requiring PI Office of the Prosecutor Office of the Prosecutor before), and so when it was filed with the JOP for PI, then
Not requiring PI Office of the Prosecutor Provincial the prescriptive period is interrupted.
Prosecutor/MTC
Falling under Rule Office of the Prosecutor Provincial 90
on summary proc. Prosecutor/MTC
(ex. BP22)
o So by filing the case with the Office of the Prosecutor, o (It cited a case where the SEC is investigating a violation of the
it interrupts the running of the period. Securities Code, and it was deemed to have interrupted the
period.)

90
 Who has control and supervision of a criminal case? o Same rule applies to seduction, abduction, and acts of
o The public prosecutor. lasciviousness.
o So what are the 3-fold duties of a PP?  Who can institute a rape case?

 1. Conduct preliminary investigation

 2. Prosecute a case
 3. Conducting inquest proceedings, consistent
with Rule 112, Sec. 6
o It means that the public prosecutor must be there during the
case. If the prosecutor is absent, the hearing will be cancelled.
o A PP cannot come to court because he needed medical
attention. He was not able to inform the court that he
could not come. The counsel of accused asked if he could
proceed even if the PP was absent, subject to the
prosecutor’s right to cross-examine the witness upon his
return. When the PP returned, he claimed the proceedings
were null and void. The other party said that the PP can
cross-examine anyway. Who is correct?
 The PP. The proceedings were null and void
because he was not present.
o So even if the PP‟s presence is a mere passive presence, and
not an active presence, that is fine, because everything is still
under his control and direction.
 What is the only exception?
o The private prosecutor can obtain a certification from the Chief
of the Prosecution Office to prosecute even in the absence of a
PP. This certification lasts until the end of the case.
 What is the role of a private prosecutor?
o The private prosecutor intervenes for the private offended
party. He does not represent the people.
 What is the rule on private offenses?
o Adultery and concubinage cannot just be instituted by anyone.
It must be the offended spouse. You would have to likewise
implead as accused the paramour and the partner (so both),
unless either is dead.
o If he has condoned, pardoned, etc. the offense, he/she cannot
file.
1
 o The minor, the victim, parents, grandparents, guardian,
State in default
o The minor now can file alone, without assistance of
parents (esp. when the parents are the offender)
 What about defamatory statements in connection with adultery
or concubinage?
o Can only be instituted by the offended party.
 When is there sufficiency of information?
o Sections 7-12 are elaborations of Section 6.
o 1. Name of the accused
 Full name (first and surname)
 If his full name is not known?
 Can use a nickname or appellation (“Boy
Singkit”)
 What if there is no nickname or appellation?
 Use John Doe or Jane Doe. For civil
cases, you use “unknown owner” or
“unknown heir” or whatever.
o 2. Designation of the offense by statute
2
 Ex. murder, homicide, estafa
 If there is no designated name of the offense, just say
“Violation of Sec. 5 and 11 of the Dangerous Drugs
Law”
 Recent SC decision: Even in the absence of a
particular section, but the allegation in the information
shows that you know the nature of the offense, then
there is substantial compliance.
o 3. Qualifying and aggravating circumstances
 Both should be alleged
 If it is an aggravating circumstance, it must
be alleged. If it is not alleged but proven in trial,
can it be taken against the accused?
 No.
 Even more reason for qualifying
circumstances.
 How about mitigating circumstances?
 No need to allege, because it is part of the
defense of the accused.
o 4. Facts or circumstances constituting the offense.
  “Cause of accusation” is the equivalent of a cause of  Yes. If there are multiple offenses in the information
action in a civil case and the accused fails to object, each offense proved
 The language of the information should be in a can be used against him.
language known to the accused.  Can you amend the information?
 What is the reason for this?
Rule 116 says that the accused must be
properly informed of the nature and cause of
accusation against him to make a proper
arraignment and plea.
o 5. Date of commission
 Do you need to provide the specific date of
commission of the offense?
 No need. Just an approximation is needed.
 Exception: if the date is a material element of
the offense.
 Election offense
 Infanticide
 Is date a material element of the offense of rape?
 No.
o 6. Place
 Need to show that it is committed within the territorial
jurisdiction of the court
 But for offenses like trespass to dwelling, violation of
domicile, election cases, arson, etc. where the
place of commission is material, you have to allege
it with particularity
o 7. Name of the offended party
 Place it there, if it is known
 If it is a crime against property, you describe the
property so that you will know who the offended party
is
 What if it is later on discovered?
 It can be inserted in the information
 Only one offense per information
o Is there an exception?
 o Yes.
 Can you substitute the information for another?
o Yes.
o We always remember amendment but forget
about substitution. So remember this.
 When can you amend or substitute?
o Whether a matter of form or substance, there can
be amendment if it is before plea.
o Can you still change the substance of an information
after a plea?
 No.
o Can you still change a matter of form after a plea?
 Yes, as long as it will not prejudice the right of
the accused.
 What is the test to know w/n it will prejudice the
rights of the accused?
 If the original defense of the accused will
have to be changed due to the change in
the formal amendment.
Ex. The original case is for rape, except that
in the formal amendment, it was alleged that
the age should have been 17 and not 18 due
to a typo. This will prejudice the rights of the
accused.
 What is downgrading and exclusion?
o Downgrading is lessening the offense (ex. robbery to theft,
murder to homicide, seduction to acts of lasciviousness)
o Exclusion is removing from the information a person
o When must downgrading or exclusion take place?
 Before plea.
o What are the requirements for exclusion or downgrading?
 1. Upon motion of prosecution
 2. With leave of court
 3. With consent of the offended party
 What is difference between exclusion before plea and discharge
of the accused as State witness?
o If exclusion, there is no need to submit an affidavit. In
discharge, you have to.
 o In exclusion before plea, double jeopardy has not yet attached o Can you consolidate a Writ of Amparo case with a civil
so you can be charged again later on. In discharge as State case or an admin case?
witness, it is tantamount to an acquittal so double jeopardy  No.
sets in.
 What is substitution?
o The information will be substituted with a new one to be filed, if
the prosecution cannot prove the offense charged in the prior
information
o The accused will not be released until a new information has
been filed as a substitute

Rule 111 – civil liability in criminal cases

 What is the general rule in civil liability?

o Once a criminal action is instituted, the civil is likewise
instituted
 Exceptions?
o 1. Reservation
 When is reservation not allowed?
 BP 22 cases
 When can reservation take place?
 Any time before the prosecution commences
with presentation of evidence considering
the circumstances of the case. Take note of
the underlined part because the timeline is
not a strict rule.
o 2. Instituted ahead of the criminal case
o 3. Waived
 When is there need for filing fees?
o Moral, nominal, exemplary, temperate damages require
filing fees.
o Actual damages do not require filing fees.
o For BP 22, what is the rule?
 For EVERYTHING claimed, even liquidated and
actual damages (this is the face value of the check).
 Consolidation of writ of amparo cases:
 o Can you consolidate a Writ of Amparo case with a
criminal case?
 Yes.
 Follow the general rule: if the civil case was
instituted ahead of the criminal case, the civil case
is interrupted in whatever stage and the criminal
case proceeds until judgment.
 And there is an option to consolidate.
 What are kinds of acquittal?
o 1. Based on reasonable doubt
o 2. Did not commit the crime
o 3. Purely civil
o 4. The acts from which the civil liability arises from were
not committed
 What is a prejudicial question?
o A criminal case will be suspended when there is a pending
civil case which must be suspended until the prejudicial
question is resolved.
o What are the requisites?
 1. The civil action was filed first
 2. The resolution of the civil action is determinative
of the criminal action
o Give an example of a prejudicial question.
 Can trespassing be only committed against the
owner of a property?
 No. {Check this} So you need not file a civil
case to determine who owns the property
first.
 Theft: determine first who owns the property
 Who determines whether there is a prejudicial
question?
 The court.
 What will be suspended?
 The criminal case.
o Where do you file a motion to suspend on the ground of
prejudicial question?
 1. The court
 2. The prosecutor conducting PI
o When do you file the motion to suspend?
  Anytime before the prosecution rests its case  Distinguish from inquest?
o Can an administrative case suspend a criminal case on o Inquest is conducted by an inquest prosecutor, when one is
the ground of prejudicial question? caught under the three exceptional circumstances provided in
 No. law
o Can another criminal case suspend a criminal case on the
ground of prejudicial question?
 No.
 What is an independent civil action?
o One that can proceed independent of a criminal case
o Arts. 31-34 of the NCC
o Art. 2176 of the NCC (quasi-delict)
 If there is an independent civil case filed before the criminal case,
is the independent civil case suspended?
o No.
o If there is a criminal case filed ahead, do you need to
reserve the independent civil action?
 No. YOU DO NOT RESERVE AN INDEPENDENT
CIVIL ACTION.
o Can it proceed side by side with a criminal case?
 Yes.
 Compare with a reserved civil action (i.e. not
independent).
 It cannot proceed side by side.
o Must an independent civil action be reserved?
 No need to be reserved, and it will not be suspended
 If the civil action was instituted ahead of the criminal, and there
was a judgment stating that there was no civil liability, is the
offended party barred from filing another criminal action?
o No. Again, the burden of proof is different.

Rule 112 – Preliminary investigation

 What is PI?
o Where the prosecutor determines whether there is
probable cause to file a case against a respondent
 Who can conduct preliminary investigation?
o City prosecutors, and their assistants, Provincial
prosecutors and their assistants
o OMB, and if they authorize the Special Prosecutor he can too
 What is the procedure for PI?
o 1. After receiving affidavit-complaint, the prosecutor
will determine within 10 ten days whether there is probable
cause
 Raffle
 Assigned to assistant prosecutor
o 2. Assistant prosecutor issues a subpoena to the respondent
o 3. The respondent will issue a counter affidavit within 10 days
 In practice there can be a reply or rejoinder, but this
is not provided by the rules
o 4. Optional clarificatory hearing
o 5. Resolution
 Who prepares the resolution?
 The Assistant prosecutor
 Is it the city prosecutor or the assistant
prosecutor?
 Assistant prosecutor prepares it, and then
the city prosecutor approves it
 City prosecutor has discretion to dismiss the
complaint, file the information himself, or ask
another assistant/State prosecutor to file it
o Regardless of recommendation
 Can a resolution be issued by an assistant
prosecutor even without approval of the City
prosecutor?
 No.
 What if the City prosecutor does not
agree with the recommendation of the
assistant prosecutor?
o He has discretion to reverse it.
 If the assistant prosecutor believes that there is
probable cause, he prepares a resolution AND an
information. Information is filed in court and
resolution served to the parties. If he does not find
that there is probable cause, he only prepares a
resolution. But regardless, no resolution can be
 issued without the approval of the City or Provincial  You were sued for slight physical injuries in MM, and it was not in
prosecutor. flagrante delicto, so it was on the basis of affidavit complaint.
 Can you file a complaint with the OMB? What happens?
o Yes, and he will then investigate. He can also motu propio
investigate.
o Can the NBI conduct preliminary investigation?
 No.
 Is service of a subpoena and receipt thereof necessary for the
Office of the Prosecutor to obtain jurisdiction over the
respondent?
o No.
o There is still no case filed against him, just an investigation.
o Even if he does not get to file a counter affidavit, there can still
be a resolution issued against him.
 X is arrested, accused of possessing illegal drugs, without a
warrant. What is the procedure?
o 1. X is taken to the police station
o 2. X can choose to apply for preliminary investigation, or have
them proceed with inquest
 If X applies for preliminary investigation, what
happens?
 You sign a waiver of Art. 125 of RPC
 Will X be released?
 If he applies for bail.
 Where does X apply for PI?
 Before the inquest prosecutor.
 Where do you apply for bail?
 With the Executive Judge. (This is a
“trade secret”)
 What is the procedure if someone is arrested for vagrancy, without
warrant?
o Note that vagrancy does not need preliminary investigation, so
the information can be directly filed with the MTC.
o Can you apply for bail?
 Yes, because you were already arrested.
 o There is no need for preliminary investigation. the crime was committed
o So the prosecutor will determine probable cause, then will  Second kind – the arresting officer has personal
knowledge
file the information in court.
o Is there a need for the respondent to file a counter  If a person is arrested with a warrant can he be placed on inquest?
affidavit here, and is there need for preliminary o No.
investigation?  What if he was arrested for an offense for which he was previously
 No. charged, and then he escaped from detention and he was arrested
 When are inquest proceedings applicable? without a warrant?
o It must be due to a warrantless arrest: o Inquest must be conducted.

 A. In flagrante delicto  How do you appeal a resolution?

 B. A crime has been committed and the police o Within 15 days, file a Petition for Review to the DOJ.
officer has personal knowledge that the person o Must the petition be verified?
committed the crime  Yes.
 C. Escaped from confinement or escape o Can the period be extended?
o Also, it must be for an offense that requires PI (at least 4y,  No.
2m, 1d)  o If the DOJ decision is adverse, to where do you go?
 If no need for PI, just file affidavit-complaint to
 Rule 43, to the CA
the office of the prosecutor.(Because only 3A is
required)  (Or Rule 65, to the CA if there was GADALEJ)
o How do we distinguish (A) from (B)?  Only to the SC if it‟s the OMB
 First kind – the arresting officer was there when
  (Or Office of the President if punishable by reclusion  So when does the court issue a warrant of arrest?
perpetua or higher)  Only when there is failure by the accused to
o Can you have the DOJ review the resolution if the appear in court despite repeated notice
offense  What is an example of a crime involving summary
in question does not require a PI? procedure?
 No. This is clear in the circular. The offense must
require, for its charging, at least preliminary
investigation OR has gone through reinvestigation.
 What is reinvestigation?
 There was a regular PI, and you were not
satisfied with it, so one files for a
reinvestigation with the Office of the
Prosecutor or in court.
 This is not provided in the rules.
 Do all offenses in the RTC require PI?
o Yes, because all offenses charged in the RTC exceed 6
years (and PI is for 4y,2m,1d)
 Once the information is filed in court, what can the judge do?
o 1. Issue a warrant of arrest, after personally determining the
existence of probable cause
o 2. Dismiss the case for absence of probable cause
o 3. The court can call for a hearing to determine probable cause
 So what are the options for a judge in an RTC case?
o Just these three.
 What about the MTC? – Distinguish:
o A. Not exceeding 6y, but more than 4y,2m,1d:
 See above [the three options]. So it‟s like the RTC.
o B. Below 4y,2m,1d, more than 6m
 Same as three above, but the issuance of the warrant
is up to the discretion of the court. If the court
believes the offense is not so grave, it may not issue
a warrant and will just issue summons.
o C. Not more than 6m, falling under the rule on SP
 The court cannot issue a warrant of arrest. Instead,
the court requires you to file a counter affidavit
  BP 22  2. Informing the accused imperils the arrest
 When can you file a motion for determination of probable  What is the duty of the arresting officer if the arrest is without a
cause? o After filing of information, but before the judge warrant?
has acted on it oCan you file after issuance of a warrant of o 1. State authority to arrest
arrest? o 2. Cause of the arrest
 No.
o Exceptions to this?
 Will the filing of a petition for review suspend the issuance of
a warrant of arrest?
 1. Engaged in commission of the offense

o No. The mere filing of a petition for review will not suspend  2. Pursued immediately after offense
the issuance of a warrant of arrest.  3. Flees/forcible resistance
o What it suspends is the arraignment.  4. Informing accused imperils arrest
o For how long?  What about arrest by a private person?
 60 days suspension of o 1. State cause of arrest
o 2. And intent to arrest him
arraignment. Rule 113 – Arrest
 What are the other circumstances where there can be arrest
without warrant?
 Does the arresting officer need to show the warrant of arrest?
o 1. Judicial bondsman may arrest him to surrender accused
o 1. Inform cause of arrest
to court
o 2. And that a warrant had been issued for his arrest
o 2. Attempt to depart the country
o Exception to this?
o 3. Person who has been lawfully arrested and has escaped
 1. Flees/forcible resistance
 After arrest what do you do?  What if you did not ask for a preliminary
o 1. Bring him to the police station investigation?
o 2. He will be incarcerated until he files for bail o An information can be filed
 What if he does not apply for bail? o Afterwards, there is arraignment
 He will stay in the city jail in the pendency Rule 114 – Bail
of the case.
 If it‟s a non-bailable offense, it‟s a different
procedure. the executive judge.
 Just wait for arraignment.  After waiver of 125, what is the next step?
 What if he applies for bail? o Go to preliminary investigation.

 He is released from the city jail and he has

responsibility to attend arraignment/appear
o 3. Afterwards, there will be an arraignment
 What if a person is arrested without a warrant?
o 1. Brought to the nearest police station
o 2. Inquest proceeding will be done
 Brought to the Prosecutor‟s Office
o 3. The inquest prosecutor can either release you or keep
you in detention
 When the inquest prosecutor releases you,
does this mean your case is dismissed?
 No. You are released for preliminary
investigation.
 This just means the affidavit-complaint of the
police officer used as basis for inquest will
be filed with the prosecutor as an ordinary
case.
 What if the prosecutor says “detain”?
 You can either apply for preliminary
investigation or not.
 What if you apply for preliminary
investigation?
o You sign a waiver of Art. 125.
o Can you then apply for bail?
 Yes. You file it with
 When does bail apply? o 2. Corporate surety
o Whenever there is deprivation of liberty  Just pay the premium
 When is bail a matter of right? o 3. Property bond
o Before conviction, whether MTC or RTC  What is the most important requirement for a
 Except for cases punishable by RP, LI, DP property bond?
o After conviction, if MTC  The owner must be resident of the
 When is it a matter of discretion? Philippines
o After conviction, if RTC  Registration of the lien must be done within 10 days
from approval of the bond
 What are the types of bail?
 Does the accused need to be the owner of the
o 1. Cash bond property?
 In a cash bond, how much is deposited in court?  No.
 The full amount o 4. Recognition
 Who receives it?  Can you be released on your own recognizance?
 Municipal, city, or provincial treasurer or  Yes.
the CIR
 What are the stipulations in a bond?
 Clerk of court where the case is pending
 o 1. Bond is effective upon approval and unless cancelled 1. The General Garcia issue – He was charged of plunder with the
Sandiganbayan, which is a non-bailable offense. He is not entitled
 Lasts until promulgation of judgment in RTC,
whether case is originally filed or on appeal
o 2. Accused must appear in court if required
o 3. Failure to appear in trial is deemed a waiver
 Trial can proceed in absentia
o 4. Bondman must surrender accused to the court for final
judgment
 From when and up until when is a bail in force?
o From approval, until promulgation of judgment by the RTC
o Whether originally filed there or on appeal
 N.B. thus if the case started in the MTC, you filed for
and were given bail, it can continue up to appeal in
the RTC

< Kira notes follow >

Rule 113

People v. Laguio – requisites inflagrante delicto; a 2007 case

1. Person to be arrested must execute an overt act that he has
committed, actually committing, or attempting to commit
2. Overt act is done within the presence or within the view of the
arresting person or officer

Presentation of the informer/informant is not indispensable in the

prosecution of a criminal case.

Hot pursuit only applies:

1. Offense has just been committed (If there is just an attempt, or the
person is just committing, hot pursuit will not apply)
2. No requirement that it be done in the presence of the officer. It is
only required that the arresting officer with an independent
and
personal assessment has probably cause to believe that a
crime has been committed.

Rule 114

Issues with grant of bail:

to bail. He has no right to bail, as a rule. But they can file a
petition for bail. Then he entered into a plea bargain. (When can
you enter into plea bargain? ANS: At any time before trial. You
can enter into plea of guilt to lesser offense during
arraignment, or even after arraignment but before trial, or during
pre-trial.) Here the plea bargain to a lesser offense of corruption
was entered into after trial. Is he now entitled to bail?
a. When there is conviction, are you still entitled to bail? –
As a rule, no. But when you appeal the conviction,
you can still apply for bail, as long as the decision is
not final and executory, assuming that it is a bailable
offense. In this case, the bail is a matter of discretion to
the court.
b. When the judgment has become final and executory,
can you still apply for bail? – As a rule, no.
c. What are the requirements for a plea of guilty to a lesser
offens
e?
i. Notice to prosecutor
ii. Consent of offended party
d. If the trial court convicted you of an offense which is
bailable (original charge was non bailable offense),
the bail should be applied with the appellate court.
Bail as a Matter of Right v. Bail as a Matter of Discretion v. Petition for Bail
for Non-Bailable Offenses
1. Petition for Bail:
a. Case: Governor Leviste shot his aid. On advice of
counsel, he surrendered and was charged only
with
homicide. It is a bailable offense. He can avail of bail, as a
matter of right. It was in the RTC, before conviction, the
offense is punishable not by reclusion perpetua, death, or
life imprisonment. Homicide is punishable with
reclusion
perpetua. But then the information was withdrawn, and
he is now charged with murder – a non bailable offense.
He will be arrested. Is he now entitled to bail? ANS. NO.
But he can file a petition for bail. Here, the court
granted his
petition for bail. The court was convinced the evidence of
guilt against him was not strong. Trial proceeded and
there was promulgation of judgment, that he was guilty not
of murder, but of homicide. Can Leviste apply for bail
now? ANS: He is entitled to bail as a matter of discretion.
b. Lets say you were charged with offense where bail is a
matter of right (e.g. estafa), but then convicted. You can
apply for bail, but it is a matter of discretion.
 c. What is the nature of a hearing for the petition for bail? i. If convicted, beyond 6 years, and
ANS: Summary. with disqualifiers – bail denied
d. Can we dispense with a hearing for bail? (When the ii. If convicted, beyond 6 years, and no disqualifiers
judge thinks malakas un kaso ng prosecution)? ANS: – bail is matter of discretion
NO. You iii. If convicted, less than 6 years – bail matter of
cannot dispense with and ignore hearing for bail. right
e. Can there be joint summary hearing of petitions for bail? iv. If convicted, less than 6 years, and with
YES. disqualifiers – bail matter of discretion, but
f. Is an arraignment a prerequisite to a petition for bail? NO. court will impose higher bail because of
Although the judge in the Ampatuan case required the disqualifiers
accused to be arraigned before allowing the petition for
bail. There is nothing irregular here though, the counsel for Mabutas v. Perello – requirements for hearing for applications for
the accused allowed it. The very moment there is a bail
deprivation of liberty, you can apply for bail. 1. Bail as a matter of discretion is different from the exercise of
2. Bail as a Matter of Right discretion in petitions for bail
a. Basta nasa MTC, bailable as a matter of right. 2. Bail is a matter of judicial discretion that remains with the judge. A
b. In RTC, bailable as matter of right if: hearing on application for bail is mandatory, whether bail is matter
i. Before conviction of right or matter of discretion.
ii. And not punishable by reclusion perpetua, death, 3. In case application for bail is filed, judge is entrusted with ff duties:
or life imprisonment. a. In all cases whether bail is matter of right or discretion,
c. The judge cannot deny bail that is matter of right; he can notify prosecutor of application for bail or allow him to give
only increase amount of bail. – Maceda case his recommendation
3. Bail as a Matter of Discretion b. When bail is matter of discretion, conduct hearing on
a. In RTC application, regardless or not whether prosecutor wants
i. Conviction to present evidence that guilt is strong
ii. And not punishable by reclusion perpetua, death, c. Decide whether evidence of guilt is strong based on
or life imprisonment summary evidence of the prosecution
iii. And not accompanied by the ff instances, if the d. If guilt is not strong, discharge accused on approval of bail
penalty exceeds 6 years:
1. Recidivist, habitual delinquent, etc What if charged with murder, petition for bail granted, then convicted
2. Previously escaped from legal of homicide? – Entitled to bail as matter of discretion. The issue of
confinement whether evidence of guilt is strong is not relevant, because that only
3. Committed offense while under applies if the offense is non bailable.
probabtion, parole
4. Flight-risk What if charged with murder, petition for bail granted, then conviction of
5. Undue risk that he may commit murder? – Can‟t apply for bail; the nature of offense is non bailable.
crime during pendency of appeal Obviously having been convicted, the evidence of guilt is strong.
b. Where will you apply?
i. If appealed, before transmission of records: to
RTC What if convicted of offense not punishable of imprisonment beyond 6 years,
ii. If appealed, and the RTC conviction changed is it still a bail as a matter of discretion? (That which is alleged is different
nature of offense from non bailable to bailable: to from what is proven. – Rule 120) – It is now bail as matter of right.
appellate court
c. Bail as a matter of discretion has an enumeration of For purpose of judge determining if bail if excessive – must consider
certain disqualifiers. parameters laid down in Section 9
But for purposes of recommending bail by prosecutor – they have their own accused
administrative list

Where to File Bail:

1. You were arrested in Kamagong (Makati), the case was filed
in Makati. Action pending in same province/city where he was
arrested.
a. Apply in court where case is pending
b. In absence or unavailability of judge, in any court in the
area
2. Person arrested in Marikina, case pending in QC. Can person file
for bail in QC? NO. Because when you arrested in Marikina,
you will be taken to nearest police station in Marikina. So you‟ll
apply there in Marikina.
3. If you‟re in Cavite, but the case is pending in Makati, but you
haven‟t been arrested, you can‟t apply for bail in
Cavite.
4. Arrested in Ilocos, case pending in Manila. He applied for bail in
Ilocos and was granted. Later the records were sent to Manila.
a. Should the records be sent to Manila? ANS: Yes.
b. Is the judge in Manila obligated to accept the bail? ANS:
He‟s not required. He can require a new bail.

Expat is out on bail, he always leave every few weeks, can he do that?
Leave without approval of court? ANS: NO. Accused out on bail cannot
depart from Philippines without securing approval of the court. If he departs
without securing such approval, he can be arrested without a warrant.

If accused is charged with vagrancy and has been in detention for almost 2
years, what should the judge do with the accused?

In a voluntary surrender, you do not need a certificate of arrest, for an

application for bail.

The DNA Rule

1. Can a person who has already been convicted and serving
sentence, apply for DNA examination? ANS: Yes
2. If the court finds after DNA evidence that the person serving
sentence is not guilty, what will the court do? ANS: Person serving
sentence must apply for habeas corpus.

Rule 115 – Rights of the

1
 A. Presumption of innocence o 5. In the SC – have their own guidelines
 How did the court apply presumption of innocence in P  C. Right against self-incrimination
v.  What is the concept of chain of custody in the DNA rule?
Dimalanta?
o Usually it‟s a concept that is connected with drugs, as re:
o When circumstances lead to two or more inferences, one
possession of seized item from the scene of the crime
or more leading to innocence and one or more leading to
o For purposes of evidence, it is considered for tampering or
guilt, the former should prevail.
authenticity of the sample. If the sample has been tampered
 B. To be informed of the nature and cause of the accusation against with, you cannot get an accurate result.
him
 What are the ways by which a laboratory can be accredited?
 To be informed of the nature and cause of accusation against him:
o See Rules on DNA Evidence 7c
o Get an authorized interpreter if the accused does not
speak Filipino/English
 What is the rule on filiation?

 When can a counsel de officio be appointed?

o DNA results that exclude from paternity are conclusive

o 1. During arraignment
o If the value of probability of paternity is less than 99.9% -
merely corroborative
o 2. During trial
o If the value is 99.9% or higher – it is a disputable presumption
o 3. Before records are elevated on appeal (accused informed
o Why is it just a disputable presumption?
of right to counsel by clerk of court at this point)
o 4. In the CA –  Because you can still argue that it would have been
physically impossible for one to do it, or there is no
 When the accused signed his appeal by himself
access, and that there is someone who could have
 Or accused is in prison similar DNA makeup (twins, for instance).

2
 o Differentiate corroborative from cumulative evidence? before or during trial.
 Corroborative proving same point, but different  In Constitution, any time as long as the
kind and character of evidence action is pending.
 Cumulative Same kind and character,
o What is the remedy for speedy trial
under the
proving same point
Constitution?
 D. Right to be present in the course of the proceedings
o What is the consequence of his absence in the hearing?
 There can be a trial in absentia if there already is
arraignment and the accused is unjustifiably absent
o When is his presence mandatory?
 The general rule is the he must be present at all
stages of the proceeding.
o Can this be waived?
 Yes.
o Where and when should it be waived?
 There should be a stipulation in the conditions of bail.
So as a rule, it cannot be waived.
o What if the private complainant is absent?
 It‟s fine.
 E. The right to public trial
o General rule is that the trial is public
o When can the public be excluded?
 Found in Rule 119, Sec 21. (offensive to
decency/public morals)
o Does public trial include public viewing on TV or radio
broadcast?
 No. It opens room for lawyers to grandstand.
o Also recognized in evidence:
 F. Right to speedy trial
o How many kinds of speedy trial?
 1. Speedy disposition of the case (constitutional law)
 2. Right to speedy trial (criminal law)
o What is the difference?
 In the Crim Pro concept, you can invoke it anytime

3
  Habeas Corpus  Mental/physical examination of accused
 Because your continuous detention has no more legal basis  Other criminal charges
o What if it’s in criminal procedure?  Extraordinary remedies against
 Certiorari interlocutory orders
 Prohibition  Pre-trial proceedings, as long as not
 Mandamus exceeding 30 days
o Rule 119 has a computation. How long is the maximum time  Orders of inhibition or change/transfer of
between the arraignment and trial? venue
 80 days  Prejudicial question
 If you don‟t follow number days, you could expect a MTD  Any period not exceeding 30 days when the
on ground of violation of right to speedy trial accused is actually under advisement
o Entire period of trial?  [Unavailable, unable]
 180 days  2. Absence or unavailability of an essential witness
o But why are a lot of cases that do not commence in time, and  Absent whereabouts unknown
are not dismissed due to violation of this right?
 Unavailability whereabouts known
 Because of the exclusions.
 3. There is a co-accused over whom the court has
o What are the exclusions?
not acquired jurisdiction or for whom time for trial has
 1. Other proceedings: not run and no motion for separate trial is granted

4
  4. Mental incompetence or physical inability of the prosecution/accused. This is the equivalent of Rule
accused to stand trial 23 depositions in criminal trial.
 [Upon motions]  Purposes for prosecution:
 5. Prosecution dismissed information upon motion
and then filed another charge for the same case – the
time limit between the dismissal and the subsequent
charge
 6. Continuance granted by the court motu propio or
on motion
 Memorize this list. Rule 119 Sec 3.
o Cases:
 In one case, Pre-trial happened after 7 years. Delay
was brought about by extraordinary remedies, like a
Rule 65 certiorari. The right to speedy trial was
invoked, but the SC said there was a valid exclusion
 But as a rule, extraordinary remedies must
not be entertained and will not stop an
ongoing criminal trial. Of course, there are
special cases.
 In another case, there were 20 postponements. The
witness requested by the prosecution was in the
custody of the NBI, but did not bring the witness in.
This was reasonable delay, and the prosecution was
acting in GF.
o What is “VCO”?
 Vexatious, capricious, oppressive
 VCO delays violate the right to speedy trial
 G. Right to confront witnesses presented against him
o Basically, can cross examine
 H. Right to have compulsory processes to secure attendance of
witnesses and production of evidence
o Can apply for subpoena ad testificandum and duces tecum
o Right to modes of discovery:
 Can apply modes of discovery in criminal cases.
 Rule 119, Secs. 12, 13, 15 Conditional
examination of witnesses for the
  1. Sick or infirm, or unavailable
 2. or the witness is about to depart.
 Purposes for accused:
 1. Sick or infirm or unavailable
 2. or more than 100km
 What is the difference if it will be availed
of prosecution or accused?
 Prosecution: ONLY in the court where
the action is pending
 Accused: Before any judge, member of
the Bar in good standing, and if ordered
by a superior court directing an inferior
court
 I. Right to testify on his own behalf
o Can the accused testify for the prosecution?
 Yes, but he can refuse
o Can a party in a criminal case be asked a question
that would raise civil liability but not criminal liability?
 [Answer unclear, but since it‟s purely civil, I think
the witness can be compelled]
o What is the effect of silence?
 It should in no manner prejudice him
 J. Right to appeal
o Will be discussed below (Rule 122-125)
Rule 116 – Arraignment and Plea
 When must arraignment take place?
o Within 30 days of obtaining jurisdiction over the person of
the accused
o Take note that pre-trial must happen within this same period,
but after arraignment
o What if the person is preventively detained?
 Follow the 3:10:10 rule. So it‟s shorter (max 23 days)
 1. From filing of information, case is
raffled within 3 days
 2. Arraignment within 10 days of raffle
 3. Pre-trial within 10 days of arraignment
 What comes first, plea or arraignment?
o Arraignment, where the information is read against him
 o Can the arraignment be dispensed with? (Ex. by an the accused
accused that does not want to hear the information)  Hearing after the plea
 Never. You cannot waive the arraignment.  C. Plea of guilt to a non-capital offense
o Can the arraignment or reading be in a language
different from what the accused knows?
 No. It must be in a language known to the accused.
 What about a belated arraignment? (P v. Trinidad)
o This happened when they realized that there was no
arraignment. There was a belated arraignment that was
validated because the lawyer had an opportunity to cross
examine and the lawyer actively participated in the
proceedings.
 What are the kinds of pleas?
o 1. Plea of guilty
 A. Plea of guilty to lesser offense
 Until when can you do this?
o At very latest, pre-trial
o At trial, cannot plea guilty to lesser
offense
 B. Plea of guilty to capital offense
 [N.B. this is a moot and academic
discussion]
 Punishable by death.
 What is required?
o Conduct searching inquiry to see if
it is voluntary and if he understands
the plea
 What does it entail?
o 1. Background check (age,
education, socio-economic
conditions)
o 2. Conduct of custodial
investigation
o 3. Explain the nature of the offense
and extenuating circumstances to
  Should there be a hearing?
o It‟s not mandatory
 D. Improvident plea
 What is an improvident plea?
o Plea of guilty without fully understanding
consequences of the plea
o X pleaded guilty to homicide. He didn’t
know that if he pleaded guilty, there
won’t be any hearing anymore. Can he
withdraw the improvident plea?
 Yes.
 When can it be withdrawn?
o Any time before judgment of conviction
becomes final (after appeal)
 What are the further actions of the court in
case of an improvident plea?
o If the sole basis of conviction is the
improvident plea, it is remanded for further
proceedings in the trial court. (Ex.
the SC sends it back to the RTC)
o If the conviction is supported by
other evidence, the SC will render
judgment
o 2. Plea of non-guilty
 A. Conditional plea
 What is this equivalent to?
o It‟s akin to a plea of not guilty
 B. Refusal to enter a plea
 The court assumes it‟s not guilty
 Can a representative enter a plea of not
guilty?
o No. The accused must be the one
to enter the plea.
 [Should the accused be present during
promulgation of judgment?]
 o Yes. o Dismissal of the case.
o Is there an exception to this rule? o Is it always dismissal?
 Yes, for light offenses.  No. The court can order amendment. [No period
The accused can be provided.]
represented.
 C. Direct plea of not guilty
 D. Say guilty but present exculpatory evidence
 When is there suspension of arraignment?
o 1. Accused suffers from unsound mental condition
o 2. Prejudicial question
o 3. Petition for review pending with DOJ
 Not exceed 60 days
o 4. Pending incidents:
 A. Motion to quash
 B. Motion for inhibition
 C. Motion for bill of particulars
 Can there be a bill of particulars in a
criminal case?
o Yes. Apply before enter of plea.
 What is required?
o Identify defects and details

desired Rule 117 – Motion to quash

 Why do you file motion to quash the information?

o 1. It is defective or
o 2. The court has no jurisdiction.
 Differentiate from provisional dismissal:
o In P.D., there is no questioning of the information. In fact, it is
valid and charges a proper offense and the court has
jurisdiction over the SM and the person.
o Provisional dismissal is always with the consent of the
accused.
 What is the effect of a grant of a MTQ?
  Amendment is a remedy, but it has a
narrow application. It does not apply to all grounds.
 Can a case dismissed by a MTQ be re-filed?
o As a general rule, yes.
o It depends on the ground.
o When can it not be re-filed?
 1. Prescription
 2. Double jeopardy
 Can the prosecution file a MTQ?
o No. The applicable remedy is substitution of information.
 When a case is dismissed provisionally, what is the effect?
o The case is temporarily dismissed.
 Ex. “This case is dismissed for 30 days”
o It can be revived (don‟t use “re-file” because the dismissal
was just provisional)
o Who will ask for provisional dismissal?
 1. The prosecution
 W ith consent of accused
 If there is no consent of accused, is it
a provisional dismissal?
o No. A dismissal without the
consent of the accused would lead
to double jeopardy (obtains finality).
 2. Or the accused
 Is the prosecution’s consent required?
o No. Even without consent, it‟s still
a provisional dismissal. As long as
it doesn‟t pass the time leading to
permanence.
o When can you ask for provisional dismissal?
 Any time.
 For a dismissal to take effect in MTQ, do you need to wait for a
lapse of time?
o There is still a period to seek a remedy after. Ex. You can file
an MR.
o After this period, it can be re-filed. (Except for the
two exceptional grounds.)
 For a provisional dismissal to be permanent, what is the period
required?
 o Beyond 6 years 2 years o 3. Does not conform substantially to prescribed form
o 6 years or less 1 year o 4. Officer who filed the information had no authority to
o When will this period begin to run? do so.
 Upon receipt of notice by the accused (given by the
code)
 But this has been supplemented by Lacson: Period
can only start upon receipt of notice by the public
prosecutor
 Rationale: because it is the public
prosecutor‟s duty to revive the case
 What are the grounds for a MTQ?
o Problem as to form
o 1. Facts stated do not constitute an offense
 The elements of the offense are not there
 But is it possible that while not constituting an
offense, you can be liable for another offense?
Can this be the proper ground of a MTQ?
 It‟s possible. This is not a ground for a MTQ.
 Ex. Charged with qualified theft, but
relationship was not alleged. You file a
MTQ. The court can order an amendment to
show relationship. The court cannot quash
because there is an offense alleged in the
information.
o 2. More than one offense was charged in the information
 How do you know if there is more than one
offense?
 Ex. murder – can you kill a person twice?
No.
 Ex. rape – you can rape someone multiple
times. For instance X raped Y five times.
How many informations should you file?
o Five.
 What if ten checks bounced?
o Ten informations, because each
is an offense in its own.
  There was a case in the Sandiganbayan. There was a
motion for reinvestigation and it was granted. The
Special Prosecutor amended it and re-filed it. Can he do
that?
 No. He has no authority; it is not within his
powers.
 Ex. a Prosecutor with authority only extending to
Bulacan cannot file an information in Makati.
 If a State prosecutor is appointed as Acting city
prosecutor, does he have authority to approve/file the
information prepared by the asst. prosecutor?
 Yes as long as he is properly appointed by the
DOJ.
o Jurisdictional matters
o 5. Lack of jurisdiction over the person of the accused
 Accused has not voluntarily surrendered
 Or Accused not arrested
o 6. Lack of jurisdiction over the offense charged
o Exculpatory matters
o 7. Criminal liability has been extinguished by prescription
 Recall that there is prescription of crimes
and prescription of penalties.
 To which does this ground apply to?
 Prescription of crimes. In prescription of
penalties, there is already a judgment.
o 8. Contains averments that if were true, would constitute
a legal excuse or justification
 Ex. Self-defense
o 9. Double jeopardy
 What are the requisites?
 1. Court of competent jurisdiction
 2. Valid information
 3. Plea
 4. Conviction, acquittal, or dismissal without
express consent of the accused
 What are examples of dismissal without the
express consent of the accused?
 Ex. failure to prosecute
  What about motion to dismiss prompted by the  4. Extinguish of claim or demand (PWEA)
accused on the ground of violation of right to o Motion to quash:
speedy trial?
 It is tantamount to an acquittal and thus
leads to DJ. This is an exception to the
general rule
 What about a demurrer to evidence which is
granted by the court?
 It is also tantamount to an acquittal and thus
leads to DJ. Another exception.
 What about a motion for determination of
probable cause filed by the accused and granted
by the court?
 No, this is not an exception. There is no
plea yet. There is no dismissal without
express consent of the accused.
 Compare motion to dismiss (civil procedure) from motion to quash
(criminal procedure).
o Re: court actions
o Motion to dismiss:
 The court can grant, deny, or order an amendment
o Motion to quash:
 The court could only order amendment if it‟s a defect
that can be corrected by such amendment.
 UNLIKE in motion to dismiss, regardless of
the ground, the court has a free hand: can
grant, deny, or order amendment.
 Whereas here, the court has to order an amendment
before denying/granting, on some grounds.
o Re: refiling
o Motion to dismiss:
 In general, it can be re-filed.
 Except:
 1. Prescription
 2. Unenforceable under Statute of Frauds
 3. Res judicata
  In general, it can be re-filed.  4. Double jeopardy
 Except:  When will double jeopardy not set in?
 1. Prescription o 1. When there is a supervening event.
 2. Double jeopardy o 2. Facts constituting graver charge only were discovered
o Re: objections not raised after a plea was entered
o Motion to dismiss: o 3. Plea of guilty to lesser offense was made without consent of
prosecutor and offended party
 In general, grounds not raised are waived.
 Except?
 Except for:
 For purpose of plea bargaining, the private
 1. Lack of jurisdiction over the SM
offended party was notified but did not
 2. Prescription appear during arraignment
 3. Litis pendentia 
And the offense is necessarily included in
 4. Res judicata the offense charged
o Motion to quash:  When can there be consent of the accused but double jeopardy
can set in?
 In general, grounds not raised are waived.
o 1. Speedy trial
 Except for:
o 2. Demurrer to evidence
 1. Lack of jurisdiction over the offense
 2. Prescription Rule 118 – Pre-trial

 3. Does not constitute an offense

 When must pre-trial happen?
 o Within 30 days from the court acquiring jurisdiction over o What is required for these agreements?
the person AND after arraignment  Must be approved by the court
 N.B. within the same 30 day period as arraignment  Absences and appearances:
 N.B. but take note of the exception (3:10:10 rule) if
the accused is detained
 Can there be compromise?
o Basic rule: you cannot compromise criminal action
o But you can compromise the civil aspect of the case
 But when you compromise the civil liability, it does not
lead to the dismissal of the criminal case
 What do you need?
 Affidavit of desistance by the offended party.
This is as to the civil aspect.
 The prosecution has to move for the dismissal of
the case
o If the prosecution moves for dismissal, does double
jeopardy set in?
 Check the requisites. If there is plea, double jeopardy
sets in. If there is none, double jeopardy will not.
 Can the admissions of the accused be used against him in the
proceedings?
o Yes, if it is in writing and signed by the accused and his
counsel.
 What is the rule for agreements entered into in the pre-
trial conference?
o Same rule – reduced in writing and signed by both accused
and counsel.
o What are these agreements?
 1. Plea bargaining
 2. Stipulation of facts
 3. Marking of evidence
 4. Waiver of objections to admissibility of evidence
 5. Modification of order of trial (lawful defense)
 6. Matters that promote a fair and expeditious trial of
the civil and criminal aspects of the case
o The rule of absences in pre-trial (in civil case) does not apply
in criminal cases.
o The pre-trial will be reset.
 If the witness is absent, the court can rely
on compulsory processes
 If the accused in absent
 1. There is forfeiture of bail
 2. There will be a warrant of his arrest
 [Distinguish cancellation from forfeiture of bail]:
 Cancellation –
o Voluntary surrender or death.
o It is automatically cancelled upon
acquittal, conviction, or dismissal
of the case against him without
express consent of the accused.
 Forfeiture – failure to appear
 What is the procedure?
 The court will order the bondsman to
produce the accused within 30 days. If
he fails to do so, the bail will be forfeited.
 What is your remedy for forfeited bail?
 Appeal
 Is it mandatory?
o Yes. There is pre-trial before Clerk of Court
 Can there be stipulations?
o Yes
 Can there be marking of documents?
o Ye
s Rule 119 –
Trial
 When must trial commence?
o Within 30 days from receipt of PTO
o What if there is an order for new trial?
 Within 30 days from notice of that order
 But if impractical, it can be extended up to 180 days
from the notice of the order
 Period to conclude trial?
o 180 days from first day of trial (unless authorized by the SC)
 What is the order of trial?  Compare with requisites for discharge under Witness Protection
o 1. Prosecution Program?
o 2. Defense o The requisites are the same.
o [optional:] o But the mode of application is different – you file it with the
o 3. Rebuttal DOJ, not with the court. (Yu v. RTC of Tagaytay)

o 4. Surrebuttal
o 5. Submission of memoranda
o Are rebuttal and surrebutal necessary?
 No. This is upon court‟s discretion.
 Likewise, with submission of memoranda.
o Can it be reversed?
 Yes, when there is self defense and other
exculpatory defenses
 Discharge of the accused as state witness – requisites?
o 1. There is no direct evidence
 So for this, you have no one who can point to the
perpetrator.
 What is the opposite of direct evidence?
 Circumstantial evidence
o 2. There is absolute necessity for the
evidence o 3. Could be corroborated in its
material points o4. Not the most guilty
o 5. Not convicted of a crime involving moral turpitude
 When can an application for discharge be made?
o Before the prosecution rests its case
o What does the applicant need to do or submit?
 Submitting sworn affidavit
o What happens to the statement?
 Becomes part of the evidence of prosecution
o What happens to the accused?
 Becomes acquitted
o If the application is denied, what happens to the
statement?
 It‟s inadmissible
 o Does double jeopardy set in, if under WPP?
 No, because there is no plea.
 So he can be prosecuted afterwards (!)
 When do you file a demurrer to evidence?
o Civil – after plaintiff has completed presentation of evidence
o Criminal – after the prosecution rests
 Do you need leave of court?
o In criminal: you don‟t need to, but there are
serious consequences if you do not secure leave.
 If you file with leave of court and it‟s denied, the
accused can still present evidence
 If you file without leave of court and it‟s denied,
the accused will not be able to present evidence –
there will be a judgment
o In civil: no need for leave of court
o N.B. demurrer in criminal case on the court’s own
initiative (motu propio) after giving prosecution chance to
be heard is allowed
 When do you file motion for demurrer in criminal case?
o 1. Non-extendible period of 5 days from prosecution resting its
case
o And then?
 Prosecution can oppose the motion in non-extendible
period of 5 days from receipt
o And then?
 If leave is granted, accused has non-extendible
period of 10 days from notice to file the demurrer
 Prosecution can oppose the demurrer in non-
extendible period of 10 days from receipt
 In criminal cases, if the demurrer is denied, can you file a petition
for certiorari?
o No. You cannot file a petition for certiorari. You have to wait
for judgment.
 What’s the effect of a grant of demurrer in a civil case?
o It‟s a final disposition of the case.
o In a criminal case?
 It‟s a dismissal. It amounts to an acquittal.
 o If the demurrer is granted and the accused is acquitted,

Or if the facts from which the civil liability might
can the accused adduce evidence on the civil aspect of rise from were not committed
the case?
 Does the prosecution have remedy against an acquittal?
 Despite the acquittal, the court can still hear the case o Note than an acquittal is immediately executory.
as to the civil aspect, unless there is a declaration that
the fact from which the civil liability would arise does
o But if there is GADALEJ (P v. Hernandez) – you can file
for certiorari
not exist.
 So if the accused was not able to present evidence in
 Before you challenge an acquittal this way, you
have to secure consent of the Solicitor General
the civil aspect, it is a void judgment.
 Recall: Exclusions to the 180-day rule for trial to finish from its first day.
 And this is only for exceptional circumstances

 When can the court grant a continuance?

 How do you promulgate judgment?

o N.B. correlate with last ground for exclusions

o The accused should be present during promulgation

o 1. Consider w/n it will lead to a miscarriage of justice  Except if it is a light offense

 So this can include the civil procedure grounds (ex.

 Or else he forfeits his remedies
unavailability of material evidence or o There is a period – within 15 days from promulgation of
sickness/absence of party or counsel) judgment – within this period he has to explain why he was
o 2. The issues in the case are so novel, unusual, and complex absent
that it requires more time to prepare o If he is in jail, to whom is the notice served?
 NOTE: Check discussion in Rule 115 for Conditional examination of  The warden
witnesses o If he is out on bail?
 When can the testimony of a discharged witness be disregarded?  The bondsman
o ONLY when he deliberately fails to testify truthfully in court o If he is at large?
 Can there be a reopening of a case?  Notice sent to last known address
o Yes, anytime before finality of conviction, the court may  Is there promulgation in appellate courts?
motu propio or upon motion (with hearing) reopen the
hearing to avoid miscarriage of justice
o Yes.

o How long before the proceedings terminate? o When duly certified by the division, and then forwarded to the
clerk of court, who will give notice of promulgation on paper
 30 days from
 Can a judgment be modified?
granting Rule 120 – Judgments o Yes, before it is final and

executory Rule 121-5 – Remedies

(NT/MR/Appeals)

 What should a judgment contain? o 2. Penalty to be imposed

o 1. Offense you have committed o 3. Participation, whether principal, accomplice, accessory
o 4. Aggravating or mitigating circumstances  Is there a record of appeal on criminal cases?
o 5. If acquitted, whether: o No.
 Complete non-liability  Is there ordinary appeal (notice of appeal)?
 Reasonable doubt o Yes

. MR/MNT

 When?
 o 15 days  A statutory right, and affirmed in the ROC
o Is Neypes applicable (fresh period rule)?  2. Offended party
 Yes.  3. People of the Philippines
 Grounds for MNT?  When may the private offended party appeal?
o 1. Errors of law/irregularities prejudicing substantive rights of
accused during trial
o 2. Newly discovered evidence
 Material
 Could not have been discovered with
reasonable diligence
 Would probably change judgment
o How long does the court have to commence a new
trial from the order granting an MNT?
 30 days from the notice of such order
 Extendable up to 180 days from notice, if the period
is impractical
 Ground for MR?
o 1. Errors of law or fact requiring no further proceedings
 Can you file MNT in the CA?
o Yes
o What ground?
 Newly discovered evidence only
o What is the period?
 From perfection of appeal until the court loses
jurisdiction
 Can you file MR in the CA?
o Yes, but just one.

Ordinary appeal

 Who may appeal in a criminal case?

o Any party may appeal, unless it would place the accused
in double jeopardy
o Parties:
 1. Accused
1
 o Only as regards the civil aspect of the case
 Ex. Did not have a finding of civil liability, did not
order restoration, etc.
o This does not place the accused in double jeopardy.
 When may the people appeal?
o See sample question: A person is charged with rape in the
information. Counsel for accused filed a motion to quash
for lack of J over the offense charged. The motion is
granted. What is the effect?
 Dismissal of the case.
o Can the State appeal?
 Yes. Because double jeopardy has not yet set in.
You file the MTQ before arraignment.
 In appeals in civil cases, when a party appeals, only such assignment
of errors that he made in the appeal will be taken up by the court. The
appellate court cannot go beyond this assignment of errors. In
criminal cases, when the accused appeals from his conviction, he
throws open the entire case for review. He will not be limited to the
assignment of errors in the appeal brief.
o Significance: the penalty imposed, instead of being lowered
2
or cancelled, it can be increased.
 In the case of several accused, where some appealed and
some didn’t, what is the rule?
o Appeal made by one party does not affect those who did not
appeal.
o Except if it ends up being beneficial.
 What happens to the decision?
o The decision is stayed until appeal is not yet completed.
 Criminal: X was charged with acts of lasciviousness (within MTC
jurisdiction). MTC renders judgment. Who reviews it?
o RTC, through notice of appeal filed with the MTC. (RULE 122)
o Compare/contrast with Civil:
 MTC RTC, through notice of appeal. (RULE 40)
 Or MTC RTC, through record of appeal
(not available in criminal cases)
 What is the procedure in the RTC for criminal cases, when acting
as appellate court?
o Parties submit their memoranda (Rule 122, Sec 9)
o Compare/contrast with Civil:
  Same. Parties submit memoranda. implemented). How do you appeal?
 Criminal: Court of original jurisdiction is the RTC, and he was o There is automatic review to the Court of Appeals, even in the
convicted for homicide. Appeal? absence of a notice of appeal.
o Go to the Court of Appeals, through Notice of appeal filed with o The case is with the CA. What can the CA do?
the RTC.
o Compare/contrast with RTC in civil action:
 Go to the CA, through Notice of appeal filed with
RTC. OR file a record of appeal.
 So still the same.
o What is the procedure followed by the CA in criminal
cases?
 File appellant‟s brief (Rule 124), within 30 days
 File appellee‟s brief, within 30 days
 Reply brief, within 20 days
o Compare/contrast with civil cases:
 45/45/20 days

Petition for review

 How does it reach the CA on petition for review?

o If the original case was filed in the MTC.
o MTC RTC CA
 What about civil cases?
o Found in Rule 42.
o Still MTC RTC CA
 Criminal: Review by the Supreme Court, if the penalty is not
punished by death, life, or reclusion perpetua: from where should
it come from?
o From the CA or the SB only
o Use Rule 45, whether civil or criminal . Again, the general rule
is that you cannot go up to the SC except through petition for
review on certiorari.
o In civil, from where can you come from?
 RTC, CA, SB, CTA en banc, etc.
 RTC, penalty is death, based on the law (although it cannot be
  If it finds for death again, it can render judgment o [Note that the CA and SB are same level courts]
but not enter it.  What if the penalty is death?
o What happens after?
o Automatic review to SC
 The CA will certify the case to the SC.
 What if the penalty is life/RP?
 The penalty is life/RP. Is it covered by automatic review?
o Notice of appeal to SC (like in the
o No. You need notice of appeal. CA
o The Court of Appeals found in favor of life/RP. Can CA) General provisions
it render and enter a decision?
 Yes.  Can there be a valid judgment even if the judge who rendered the
judgment was not the same one who heard the case?
o How do you appeal this?
o Yes.
 This is the singular instance where you file a
NOTICE OF APPEAL with the Court of Appeals to  Logrida v. P: Rule 122, Sec. 11 provides: even if an accused did not
go up to the SC. appeal when there are multiple accused, and there is a favorable
judgment, it could benefit the non-appealing accused.
Sandiganbayan o However, in this case, the accused invoking this provision
actually filed an appeal, but it was dismissed due to a
 What if the penalty is less than death/life/RP, whether original technicality.
or on appeal?  When is as appeal deemed to be abandoned?
o Rule 45 to SC o When the accused jumps bail, escapes, or fails to file an
appellant‟s brief.
 Counsel-de-officio: o If you go to the CA, what mode?
o The general rule is the accused is given the choice to retain a  Ordinary appeal, Rule 41
counsel de parte (of his choice)  RTC sentences accused to RP or LI. What is the remedy?
o If he cannot afford one, the court appoints a counsel de officio o Notice of appeal to CA, Rule 41
o One can be appointed during arraignment, or for the rest of the
trial.
o Can a counsel de officio be named in the Court of
Appeals?
 Yes, when the accused signed his own appeal. Also,
when he was not assisted by counsel.
o Can the SC appoint a counsel de officio for the accused?
 Yes, the SC can, but this is not provided for in the
rules.

Sample scenarios

 Seduction – what court has jurisdiction?

o File in MTC (since MTC cut-off is 6 years)
o Appeal – to RTC which has territorial jurisdiction.
 Notice of appeal
 Records of MTC elevated to RTC, no new trial.
Parties are required to submit memoranda.
 Rule 42
o Appeal again – to CA
 Regardless of the question involved, because
RTC was exercising appellate jurisdiction
o Appeal again – to SC
 Rule 45 only (pure questions of law)
 Estafa
o File in RTC, performing original jurisdiction
o Appeal –
 Questions of fact and mixed questions, go to CA
 Pure questions of law, go to SC
o If you go to SC, what mode?
 Rule 45
 o What issues can you raise?
 Facts, or Mixed
o If your questions are just purely legal, are you prevented
from raising it to the SC via Rule 45?
 No you are not. There is nothing the rules
preventing you from doing so.
 RTC imposes penalty of RP or LI. The CA affirmed. Your MR is denied.
What is your remedy?
o Go to the SC, under Notice of Appeal
o This is the exception
o Purpose: so you raise both questions of law and fact
 Where appealed cases from Sandiganbayan go?
o SB (= CA) SC (Rule 45)
o SB (reclusion perpetua or LI) SC (notice of appeal)
o Note: there can still be certiorari (Rule 65) for instances,
such as when the prosecution was deprived its day in court
 Does the Rule 41 provision which enumerates what cannot
be appealed apply suppletorily to criminal appeals?
o No.
o Resolution on MTQ is thus appealable regardless of
the ground availed of (because it is a final order)
o If the basis of MTQ is prescription of the offense or double
jeopardy if this is granted by the TC, this means that the
prosecution cannot simply refile it. There is no problem
here, so remedy is appeal.
o The only issue is when the MTQ is based on grounds like
alleging multiple offenses or lack of J of the court, which can
be cured by refiling in a different court the losing party
can still challenge it in an appeal!
 Because as highlighted above, the Rule 41
prohibition does not translate to criminal procedure
 Practitioner-type question: If as prosecutor, your complaint was
dismissed under Rule 117 Sec 3 (5) – did not comply with
proper form. What is the better remedy to choose: certiorari or
appeal (since this is allowed too)?
o N.B. If this were a civil case, the obvious remedy is re-file
or certiorari under Rule 65, since appeal does not vest.
 o In a criminal case, you have to choose appeal because  No. It is a special judicial process.
certiorari cannot vest if there is a plain, speedy, o Can it become one?
available remedy.
o But sir left this issue hanging. “It‟s not yet clear

cut.” Rule 126 – Searches and seizures

 How long is the life of the search warrant?

o 10 days from date of issue, and then void
 What can be the personal property subject to search and seizure?
o 1. Subject of offense
o 2. Stolen or embezzled, or fruits of the offense
o 3. Used or intended to be used as means to commit offense
o The search warrant said “an undetermined amount of
shabu.” The original case was for marijuana. Will this be
enough for the police officers to conduct a search?
 Yes, even if the amount was not specified. What is
required is that the object of the search be
described with particularity. Quantity is not required.
o The police officer was armed with a search warrant. But
before implement or enforcing it, on plain view, he saw
illegal firearms. Can there be a valid search?
 Yes. Plain view exception applies, even if there is a
search warrant.
 Where could you apply for a search warrant?
o 1. You apply to the court, following the rule on territoriality.
o 2. For compelling reasons, any court within judicial region
where the crime was committed or any court within judicial
region where warrant shall be enforced
o What can be a compelling reason?
 It‟s a question of fact, but an example is when he is a
public officer of that locality and there is doubt that a
search warrant can be properly applied for.
o N.B. But if there is already a criminal action, file it in the
court
where the action is pending
o Is application for a search warrant a criminal action?
  No. You need information because the application
for a search warrant will not evolve into one.
 Where do you file for quashal of search warrant?
o In the court wherein it was applied for if there is no case yet
o If there is a case, in the court where the case is pending
 Who determines probable cause for search warrants?
o The judge. Not the prosecutor.
o Wherelse is probable cause required, apart
from application for search warrant?
 1. Preliminary investigation
 2. Rule 113, warrantless arrest (personal
knowledge that crime has been committed)
 3. Warrant of arrest
 4. Search and seizure
o What is required for the judge to do?
 Personal examination and determination by the
judge of the complainant/applicant and witnesses.
 It does not involve mere submission of affidavits.
 Give an example of a search based on a warrant, where the
place is described with particularity.
o Ex. if it‟s an apartment, you give the number of the apartment.
o What if it’s a stretch of apartments, and what was
indicated is apartment B, but what was searched was
apartment C. Was there a valid search?
 No.
o But was the search warrant valid?
 Yes. The search warrant can be valid, but
the implementation was invalid.
o There were illegal items seized from apartment C. How
can you prevent these goods from being used in a
criminal trial?
 Motion to suppress.
o Differentiate motion to quash from motion to suppress.
 Motion to quash is before implementation of the
search warrant.
 Motion to suppress is after implementation and
before presentation in court.
o What if there is no way to describe with particularity the
place, esp. when it is a province?
  It‟s possible to say “kilometer 30.” But this can‟t  1. DDL,
apply for cities or municipalities.  2. IP code,
 To whom must a search warrant be served?
 3. illegal possession of firearms,
o The lawful occupant.
 4. illegal gambling,
o In the absence of the lawful occupant?
 To a relative.
o In the absence of the occupant or relative?
 To two witnesses of sufficient age and
discretion residing in that locality.
 When the items are seized, to whom must the receipt be given?
o To the lawful occupant or relative
o If there are two witnesses, the receipt will be left in the
premises where they were seized
 When can it be conducted?
o The warrant must provide that search is in day time
o N.B. Unless affidavit asserts the property is on the person or
place ordered to be searched, in which case, it is day or night
 What is the duty of the officer after the search?
o He should present an inventory of the items. Failure to submit
inventory makes him liable for contempt.
 Dangerous Drugs Law: what are the special rules?
o The inventory must be made at the scene of the crime. (For
normal crimes, it can be done in court or police station or
wherever.)
o The person must make a physical science report to track
the chain of custody.
 What is the rule as to search and arrest?
o The general rule is that the arrest must come before the
search and seizure.
o Or, the search and seizure must be contemporaneous to
arrest.
 If you apply for a search warrant in QC, can it be applied outside
of the territorial jurisdiction?
o As a general rule, no.
o But allowed as an exception for violations of:
  5. Heinous crimes,
 6. AML,  What is the general rule?

 7. Violation of tariff and customs code. o Provisional remedies in civil procedure are applicable to
criminal procedure.
o You have to apply before an executive judge before the
City of Manila or Quezon City. This will be effective  What about replevin?
anywhere in the Philippines. o Does not apply because it can only be filed before an answer,
 Re: Seizure of fake goods (ex. fake Adidas) – What is the role but in a criminal case, there is no answer.
of the private party?  What are the grounds for attachment in criminal cases?
o The private party can submit documents and pleadings to o 1. The accused is about to abscond or depart with intent to
support the application of the NBI. defraud
 The place of manufacture of the fake goods is in Cavite, and o 2. Claim for money or property that has been embezzled with
place of sale is in San Juan. Where do you apply? abuse of trust (estafa)
o Either place. o 3. Accused resides outside the Philippines
o 4. Accused has concealed/removed/disposed his property
Rule 127 – Provisional remedies
Situation Period Remarks
PRELIMINARY
INVESTIGATION
Filing of complaint *start of criminal
procedure*
Initial action of Within 10 days from Either dismissing or
prosecutor (no PI) filing of complaint prosper
Initial action of Within 10 days from Dismiss case or issue
prosecutor (with PI) filing of complaint subpoena to
respondent
Respondent submits Within 10 days from If respondent cannot be complaint;
counter-affidavit receipt of subpoena subpoenaed or did not Arraigned within 10
submit counter-affidavit days from date of raffle;
within 10 days, Pre-trial within 10 days
prosecutor resolves from arraignment
based on complaint Suspension of Maximum 60 days from
alone arraignment due to filing of petition
Clarificatory hearing Within 10 days from (Optional) petition for review filed
submission of counter- with Sec. of DOJ
affidavits Filing of motion to Any time before he is
Termination of Within 5 days from first quash arraigned
clarificatory hearing hearing
Resolution Within 10 days after TRIAL
investigation Time for accused to At least 15 days from
Forward record of case Within 5 days from prepare for trial plea of not guilty
to provincial or city resolution Commencement of trial Within 30 days from
prosecutor or receipt of pre-trial order
OMB/deputy Commencement of trial Within 30 days from Allow extension up to
Action by the provincial Within 10 days from Can: a) dismiss or b) after MNT granted notice of the order 180 days, by the court
or city prosecutor or receipt file information Entire trial period Maximum 180 days
OMB/deputy from first day of trial
Judge determines Within 10 days from If judge doubts Exclusion from 180 day Maximum 30 days
probable cause filing of information or existence of probable limit of delay due to
complaint cause, he may opt to: pre-trial proceedings or
Prosecutor to present Within 5 days from The 10 days to period in which
additional evidence notice determine extends to accused is actually
upon judicial order 30 days under advisement
(Post inquest) Filing of Within 5 days from the Examination of witness Order by court (upon Before a judge,
complaint or time he learns of its for defense (aka modes application of accused) member of bar in good
information in court filing of discovery for criminal issued at least 3 days standing, or inferior
without preliminary action) before the examination court
investigation – accused Leave of court to file Within 5 days after Non-extendible
may ask for preliminary demurrer to evidence prosecution rests its
investigation case
Opposition by Within 5 days from Non-extendible
ARRAIGNMENT and prosecution to the receipt of the motion
PRE-TRIAL motion
After being granted Within 10 days from Non-extendible
Arraignment of person Within 30 days from This same period must
leave, filing of demurrer notice
not under preventive date court acquires cover pre-trial
to evidence
detention jurisdiction over him
Reopening of trial to Anytime before finality Terminate proceedings
Arraignment of person Raffled within 3 days Remember the 3:10:10
avoid miscarriage of of conviction within 30 days from
under preventive from filing of rule
justice order granting it
detention information or
JUDGMENT, o 3. Testimonial
REMEDIES  Whether it’s object, documentary or testimonial, what is required?
Surrender of convicted Within 15 days from Surrender and file
o They have to pass the test of admissibility (Rule 128, Sec. 3)
accused, after initially promulgation of motion to avail of post-
failing to appear in judgment judgment remedies
promulgation of (because these will not Direct: proves fact in dispute without
judgment avail anymore) need for inference or presumption
Availing of post- Within 15 days from
judgment remedies of notice, after proving
above-stated person justifiable reasons for Primary: best evidence; affords
non-appearance greatest certainty of fact

Appeal from judgment *follow usual periods in Positive: witness affirms that a fact
appeal did or did not occur. Positive trumps negative, when witnesses equally credible
Submission of Within 30 days of
appellant‟s brief receipt of notice from
clerk of transmittal of
evidence Corroborative: Different kind and
Submission of character proving the same point
appellee‟s brief
Prima facie: that which suffices to
prove a fact, until contradicted by other evidence

PART III: EVIDENCE o 2. Documentary

General provisions

 When did the Rules on Evidence take effect?

o July 1, 1989
 What is evidence?
o Evidence is the means, sanctioned by the Rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
 Not all concepts of evidence will require presentation of evidence.
What are these exceptions?
o 1. Judicial notice
o 2. Judicial admissions
 When you’re required to present evidence, there are three kinds:
o 1. Object
 When is evidence admissible? non- existence
o When it is relevant and competent
 When is it competent?
o Not excluded by law
 When is it relevant?
o What are not competent – give examples:
o 1. When it is material
 Those excluded by the Best Evidence Rule
 When is it material?
 Those seized without valid warrant and without a
 Has direct relation to the fact in issue
valid exception
o 2. When it has probative value
 Those violating the Parol Evidence Rule (contents
 When does it have probative value? in the written document are presumed to be
 Can induce belief as to its existence or the
 repository of all the matters agreed upon by the o Evidence that proves something happened.
parties) o Ex. “I saw him stab person X” or “I did not see him stab person
 Differentiate direct from circumstantial evidence.
X”
o Direct: prove a matter without need for inference or
presumption
o Circumstantial: facts, from which the existence of another
fact may be inferred as a necessary or probable consequence
o When is testimonial evidence direct evidence?
 When the witness was able to perceive the
matter being testified upon
o Can circumstantial evidence be the basis for conviction?
 Yes. As long as there is more than one
circumstance and each is proven.
o Can circumstantial evidence be basis for identification?
 Yes.
 What are the characteristics of admissibility?
o 1. Multiple admissibility – evidence may be admissible for
multiple purposes
o 2. Limited admissibility – it may be admissible for one purpose
but not another, or against one party, but not another
o 3. Conditional admissibility – if relevancy of a fact is dependent
on evidence not yet submitted, the court may accept the
evidence conditioned on:
 A. statement of supposed connecting facts
 B. promise to give it in evidence
o 4. Curative admissibility – where inadmissible evidence is
offered and not objected to, if the latter party is presenting
similarly inadmissible evidence to counteract the first
inadmissible evidence, then it is likewise admissible
 What is the difference in relevance of direct and circumstantial
evidence?
o 1. Direct evidence is always relevant
o 2. Circumstantial evidence may or may not be relevant
 The more steps there are in the chain of inference,
the less probative value it has
 What is positive evidence?
 What is negative evidence?
o Evidence where the witness was there, but he did not
perceive anything.
o Ex. “I was there in the scene, but I did not notice
anything happen.”
 What is primary evidence?
o Best available evidence to establish the fact in issue
 Is there primary evidence in testimonial evidence?
o What is an example of primary evidence?
 Best Evidence Rule. The secondary evidence here
is photocopy, recital of the contents, or testimony
as to its contents.
 What is weightier, physical evidence or testimonial evidence?
o Physical evidence.
 Note: exceptions to the hearsay rule are not absolute. They can
 What is prima facie evidence?
be contested or impugned.
o How do you destroy the exception?
 Destroy the requisites.
 “Ex. „was it audible?‟ „was he aware that he was
going to die?‟”
 Is there primary evidence in object evidence?
o Yes. If you want to present a car, present the actual thing
itself.
o What is the secondary evidence?
 A car of the same model, same type, etc. which will
aid the court in understanding the object involved.
o Yes. A person who had personal knowledge.
o What is the secondary evidence?
 Hearsay.
 N.B. but note that the codal does not expressly tag
hearsay as secondary evidence although it is. When
asked in the bar what secondary evidence is, give the
answer for documentary evidence to be sure.
o That which suffices to prove a fact, until contradicted by other
evidence
o What is the difference between prima facie evidence and
disputable presumption?
  1. Prima facie evidence arises from a fact that o General rule, not relevant
would sufficiently create a reasonable belief that an o EXCEPT, when the collateral matters establish probability or
act alleged has arisen improbability of the fact in issue
 2. Disputable presumption arises from Rule 131 o Give an example.
o N.B. they are the same in such that these can be controverted
 What is a conclusive presumption?
o It cannot be controverted
o But can you attack a fact that leads to a
conclusive presumption?
 Yes.
o Give an example of a conclusive presumption.
 Tenant cannot deny the title of his landlord
 Distinguish between preponderance of evidence and proof BRD:
o Preponderance – Court determines superior weight of
evidence; for civil cases
o Proof BRD – Moral certainty, conviction will arise from an
unprejudiced mind; for criminal cases
 Are the rules of evidence uniformly applied in all our courts?
o Yes, in general.
o Trade disputes in DTI?
 No.
o NLRC exercising QJ functions?
 No. You don‟t need best evidence available here
(can use photocopies, that‟s fine)
o What does “except if otherwise provided by law”?
 If otherwise provided, then the uniform application will
not extend to that.
o Examples:
 1. Agrarian cases
 2. Rule 130, sec. 26/27: compromise rules are not
the same in civil and criminal cases
 3. Character evidence: there is also difference in
civil and criminal cases
 4. Two witness rule in treason
 What about collateral facts?
  In rape, the accused can point to the character of  Why are these mandatory?
the supposed victim to prove that there is o Because they have already been established. They cannot be
probability that the intercourse was consensual. disputed anymore. No need to introduce evidence anymore.
 N.B. You can only use character evidence if there is a
character trait involved in the offense charged.
 Can the court take judicial notice of rentals?

 What is factum probandum and factum

o No. The court cannot take judicial notice of factual matters.

probans? o Factum probandum is what  Is the court bound to take judicial notice of municipal orders?
must be proved o Factum probans is o MTC judge required, if ordinance came from municipality
what is used to prove it or city where they sit
o RTC judge No. Except when a) required by statute; b)
Judicial notice and judicial admissions
inferior court took judicial notice of an ordinance in the
case being appealed before RTC
 When is it mandatory?
o What about memorandum circulars issued by
o 1. States – existence, territorial extent, political history, departments?
forms of government, symbols of nationality
 No. The court is not expected to take notice of these
o 2. Law of nations, admiralty, maritime courts of the world, less important matters.
and their seals o What about customs and foreign laws?
o 3. Political constitution and history of the Philippines,  No, these must be proved in court
official acts of legislative, executive, judicial departments of
Philippines
 Are courts bound to take judicial notice of cases pending in the
same court or decided in that court?
o 4. Laws of nature, measure of time, geographical divisions
 o No. The courts will not and cannot, even if it came from the  When can there be taking of judicial notice?
same court. o 1. During trial – on any matter and with hearing
o What are the requisites for the exceptional circumstance o 2. After trial and before judgment – same, but only on matters
when a marked but unoffered piece of evidence decisive of a material issue in a case
referencing a prior decided case fell under judicial notice
(note, if it were offered, no need to resort to judicial
notice)? (Basis: Tabuena v. CA)
 1. Without objection by the other party
 2. With knowledge of the other party
 3. At the request or with consent of the parties
 4. The case is clearly referred to
 5. It is actually withdrawn from the archives
 6. It is admitted as part of the record of the case
 What is covered by discretionary judicial notice?
o 1. Matters of public knowledge
 Example: Death of Corazon Aquino
o 2. Capable of unquestionable demonstration
 What is this? If repeated in a regular manner, it will
establish that fact.
 Examples:
 Mathematical computation
 Statistics
 Effects of poison, etc.
 Do surveys fall under this?
 No, because methods change, samples
change, etc.
o 3. Ought to be known to judges due to their judicial function
 Can a judge take judicial notice of proceedings
pending in other courts?
 No.
 He‟s not bound to know all the cases filed.
 What about pending cases in his own sala?
 No.
 Unless he takes the consent of the parties.
 o 3. After appeal – same, but only on matters decisive of
a material issue in a case
 Can every matter be subject of judicial notice?
o Yes, during the hearing.
o You are not limited to the enumerations provided in law.
o What is the need for a hearing?
 Check propriety of taking judicial notice
 There was an insurance recovery claim, dated September 2009.
It was not alleged in the claim that the loss happened on the
day Ondoy struck Manila. Can the other party request the court
to take judicial notice (or can the court motu propio take judicial
notice) of this fact?
o Yes.
 Differentiate between legislative facts and adjudicative facts:
o Legislative facts: general facts of political, social, or
economic nature
o Adjudicative facts: those applicable to the facts in the
present case
 Judicial admissions:
o Statement made as to a fact in issue made in a pleading or
in utterances in a trial
o Do you need proof as to judicial admissions?
 No.
 When is there a judicial admission?
o Made in the same pending proceedings
o What if made in prior proceedings?
 These already become extrajudicial
admissions, which are by nature disputable
 What are covered?
o 1. Statements in pleadings (ex. complaint or
answer) o 2. Statements made during testimonial
presentation o 3. Depositions or other documents
o 4. Pre-trial
o 5. Documents submitted in court
o Can they be withdrawn?
 Yes.
 When?
 1. There was no intent to make such an admission
 2. Or there was palpable mistake
 What is the nature of admissions made in amended pleadings?  What is chain of custody?
o They are mere extra-judicial admissions. Thus, they have to o Before an object can be received in evidence, one must: A)
be offered in evidence first. present all the persons who handled the object and show what

Rule 130

 N.B. The rules on admissibility are applicable to object, documentary,

and testimonial evidence alike.

Object evidence

 What is object evidence?

o Those addressed to the senses of the court
o An object is presented so that the court can perceive it.
 What is the difference between object and testimonial evidence?
o Object – addressed to court‟s senses and courts can
actually observe it
 What if it is immobilized ex. real property or
personal properties attached?
 Ocular inspection
o Testimonial – recounting, second hand
 Differentiate real and demonstrative evidence:
o Real – tangible object that played an actual role in the issue in
trial
o Demonstrative – evidence in the form of a representation of an
object
 When is object evidence admissible?
o 1. Object is relevant
o 2. Object is authenticated
 What is authentication?
 That it actually is what you claim it to be
 Does authentication apply to demonstrative
evidence?
 No. Because it does not purport to be the
actual thing.

1
 they did to it; B) and that during the time they had it in their  What is demonstrative evidence?
possession, no other person had access to that thing.
o Evidence that adds to or explains.
o The purpose is to show that evidence was not tampered with.
o Maps, charts, graphs, etc.
 Does non-production of object evidence render
o Is it the same as demonstration?
testimonial evidence re: the object inadmissible?
o No. This just goes into weight.  No. Demonstration is when you ask for a re-
enactment or display of how an act was done or re:
 Are experiments admissible? facts.
o Yes.
o When is it not? Documentary evidence

 1. Too complicated to afford any fair inference,

 What is documentary evidence?
 2. Cannot be performed in manner to fairly
o Writings on any material containing, letters, words,
illustrate the fact
numbers, figures, symbols, or other modes of written
 3. More likely to confuse than shed light. expression AND it is offered as proof of its contents
 What is a paraffin test? o If Blitz had a tattoo saying “I love Jojo” is
o Test for gunshot residue this documentary evidence?
o Are the results conclusive?  Yes.
 No. It‟s not 100% reliable. o If Blitz wrote on a shirt, saying “Good luck!” is
 Is a lie detector test 100% reliable? this documentary evidence?

o No. You can cheat it.  Yes.

2
 o Why are these documentary evidence? itself
 It can be in any material, as long as it is a writing or o What if all you want to establish is the
inscription. existence of a document, do you need to present
 What about text mesage? the original?

 Yes.  No. Because it‟s not the contents of the

document that are in issue. You can present
 It is ephemeral evidence a copy.
o When is a piece of writing NOT considered
documentary evidence?
 When you not focused on establishing its contents
 For instance, you are establishing its existence or
its condition, and not its contents
 What is required for photographic evidence?
o It must be relevant and verified
o Who must verify it?
 Some qualified witness
 In general, must be the photographer, who
establishes the production thereof and the
circumstances under which it was produced
 But other witnesses can also establish its exactness
and accuracy (for instance, someone who was there
too)
o What must be proved?
 That it is an accurate representation of what
happened.
 As to production and circumstances under which
they were produced.
 Prove who operated the camera, the ability of the
camera to capture the scene, etc.
o Prove all of this first before going into the contents of the
photograph.
 What about videos?
o Similarly, lay down the basis, before presenting the contents
 What is the Best Evidence Rule?
o When the subject of inquiry is the contents of a document,
no evidence is admissible other than the original document

3
  N.B. However in practice, try to always present the o Or printing 5 copies of the same
original. document, and then sign all
o What is the original?  What if I print and sign one, then make
 1. The one the contents of which are the subject of inquiry my secretary produce four copies?
 Is the copy made an original just because o The four copies are not originals
the contents thereof are the subject of  I executed a document by 8 counterparts
inquiry? (ex. bills in set), signed four here in
o No. You still have to go to the original. Manila on Feb. 28 and shipped four to HK,
 Do you need to authenticate an original which were signed on Mar. 1. Are they all
document even if it appears to be an original? original, even if executed in different
o Yes, even if it appears to be an original. dates?
 2. Document is in two or more copies executed at or about o Yes, they can be regarded as
the same time with identical contents originals.
 Usual examples: o N.B. You have to stipulate in the
o Carbon copies contract (“execution by
counterparts”) that even if not
o Computers that shoot straight through to
the Xerox machine, and then sign all

4
 executed on or about the same Agreement containing the
time, they are all originals. basic terms
 3. Entry is repeated in the regular course of business, o Ex. A demand letter
one copied from another at or near the time of the
transaction
 N.B. this refers to “entry” not “execution,” but
you do not sign the books
o Does “execution” in number 2 include formalities like
notarization and affixing signature?
 It depends on what form is required from the contract.
 What are the exceptions to the Best Evidence Rule?
o 1. The original has been lost, destroyed, or cannot be
produced in court
 Not through the fault or bad faith of the offeror
 Must there be exercise of diligence?
 Yes, the offeror must attempt to procure the
original
 In cases of loss or destruction, can you present
secondary evidence?
 Yes. You need to lay the basis first.
 What do you need to do?
o 1. Prove that the document exists
and it was duly executed
o 2. Prove cause of unavailability
 The actual presentation of secondary
evidence will only come after laying the
basis.
 What are the types of secondary evidence that
you can present?
 1. Copy of the document
 2. Recital of its contents in an authentic
document
o Ex. Secretary‟s certificate, in case
of loss of the minutes
o Ex. There is a mother contract,
and there is a Memorandum of
 o Must it be a verbatim copy or is
paraphrasing fine?
 Verbatim copy
 3. Testimony of a witness
 Must it be in this order?
 Yes. Follow this order.
o 2. Original is in the adverse party‟s custody or control
 What are the requisites?
 1. Document exists
 2. There is reasonable notice to produce it given
to the other party
 3. There is failure to produce
 Does this lead to presentation of secondary
evidence?
 Yes
o 3. Original constitutes voluminous documents
 Requisites?
 1. Prove voluminous nature of the documents,
which cannot be examined in court without
great loss of time
 2. Provide access to the other party to the
original documents
 What must be proved by these documents?
 The fact sought to be established must be
the general result of the whole
 What if the voluminous documents are financial
documents for the past 20 years, and the
fact sought to proved is the profit/gain for this
period?
 You can present a summary because you
are proving the general result of a whole.
 What do you need to present?
 You just need to present a summary of the
documents
 When do you need to present the original?
 When the contents thereof are the subject of
the inquiry – no matter how voluminous they
are.
 o 4. Original which is in the custody of a public officer or  When is a photocopy inadmissible under the Rules on Electronic
recorded in a public office Evidence?
 Can you present the original? o 1. There is genuine dispute as to the authenticity of the original
 No, because it‟s in the custody of that officer o 2. Unfair or inequitable under the circumstances to admit it
or office.
 What do you present?
 A certified true copy given by the public
officer in custody thereof.
 Give an example.
 NSO Birth Certificate.
 Just the Xerox copy of buy-bust money is presented in court.
Admissible?
o Yes, because you are just proving the money exists, and not
the contents of the money.
o Test: What is being proved?
 That the money exists.
 Not the content of the money as a document.
 If you want to prove payment, can you just present the
witness who was there at the time payment was made, and not the
receipt? o Yes. The BER does not apply because what is being
proved is
the fact of payment, even when there is a receipt.
o Test: What is being proved?
 That there was payment.
 Not the content of the specific receipt.
 How does the BER apply to Electronic evidence?
o An electronic document is regarded as the equivalent of
the original under the BER if:
 1. It is a printout or output readable by sight or other
means
 2. It is shown to reflect the data accurately
 What is the rule on electronic documents?
o In general, they are the functional equivalent of original
documents
 When a document is altered or amended by the parties, what is
the original?
o The amended or altered document
 X was ejected from his seat in ABC airline. Protesting, he told the
purser about the incident. The purser recorded in his notebook that
X was ejected from his seat. Does BER prohibit testimony re:
the purser’s act because the notebook was not presented?
o No. The fact at issue is the ouster, not the contents of the
notebook.
 X was being investigated for alleged perjury in a senatorial
investigation for malversation charges. The chief counsel in the
investigation testified as X‟s statements in the investigation. X
objected, claiming the transcript is the best evidence and the chief
counsel‟s investigation is barred by BER. Correct?
o No. The issue here is not the contents of the transcript
but what X said in the investigation. The issue is not re:
contents of a document.
 X claimed that a movie infringed on his copyright over original
designs for a vehicle. X was unable to present his original designs,
and instead presented a reconstruction made after the film was
released. Barred by BER?
o Yes. The fact at issue is the content of the drawings, so the
original must have been presented. X could not properly prove
in this case, moreover, that the original drawings were lost
without his fault.
 What is the Parole Evidence Rule?
o When the contents of a document are reduced to writing, it is
considered as containing all the terms agreed upon – as
between the parties and their successors in interest.
o No other evidence of such terms can be presented.
 What are the exceptions?
o 1. Intrinsic ambiguity, mistake, or imperfection in the written
agreement
 Must it be ambiguous on its face?
 No. The ambiguity must be intrinsic.
 Give an example.
 In a will, the testator said “I give half my
property to my son Buboy.” When the will
 was being probated, it turns out there were  X approached Y, asking for money for tuition fee of his
two sons with the nickname Buboy. son. X said he intended to mortgage his property. Y
 What mistake is contemplated? asked him to sign
 Mistake of fact, and the mistake was mutual
 What are the requisites?
o 1. Mistake is of fact
o 2. Mistake is mutual
o 3. Mistake must be alleged and
proved by clear and convincing
evidence
 What do you do with the contract?
o Reform.
o When do you not reform?
 When there was no
meeting of the minds.
Example, X thought it was
the property in Batangas,
Y thought it was the
property in Cavite.
 Give an example.
o Contract of sale of property. X
thought it was Batangas, Y thought
it was Batangas. But it was actually
in Cavite.
 Give an example of imperfection in the written
agreement?
 The provision says that the offended party
must pay damages, when it fact, the offender
must pay.
 Another: X and Y entered into a contract of
sale of property, over a Batangas property.
But the technical specifications provided
were those of the Cavite property.
o 2. The failure of the written agreement to express the true
intent and agreement of the parties
 Give an example.
 a document, but that contract
provided for an absolute sale
o 3. Validity of the written agreement is at issue
 Can a contract void on its face be
made valid by presentation of
extraneous evidence?
 No. This provision does not
contemplate contracts that are
by nature void, to make them
legal.
 What situations are covered under this?
 1. No contract ever existed
 2. Minds of the parties never met
on the terms of the contract
 3. No consideration upon which
an agreement was formed
o 4. Existence of other terms agreed to by the
parties/their successors-in-interest after execution of
the written agreement
 Give an example.
 There is an original contract and
it was amended from a 20-year agreement
to a 10- year agreement
 What is the rule?
 1. The separate oral agreement must be A)
collateral and B) it must relate to a subject
distinct from that to which the contract
applies
 2. Or if there is a new contract
 What if the document expressly states that all the
rights and obligations of the parties are
written therein?
 Even when there are collateral
agreements, they cannot be presented
 What is required?
o The party questioning it must put it in issue in his pleadings
 What if a party fails to object, invoking the PER?
o It will be deemed a waiver.
 If the party presenting parol evidence is not a party to the contract,
will the PER apply?
o No. The PER only binds the parties to the contract.
 What if there is a suspensive condition in the contract? original OR
o When the operation of a contract is made to depend on the  2. It is unjust or inequitable to admit a copy in lieu of
occurrence of the event as a condition precedent, it may be the original
proved by parol evidence.
o This is not varying the terms of the agreement, because
there is legally no contract in existence.
 To what kind of documentary evidence does PER apply?
o Written agreement. A receipt is not a written agreement.

Rules on Electronic Evidence

 To what cases does REE apply?

o 1. Civil actions and proceedings
o 2. Quasi-judicial and administrative cases
o N.B. NOT criminal
 What is the functional equivalence rule?
o When a rule of evidence refers to a document, it shall be
deemed to include electronic evidence
 When is it admissible?
o If it complies with rules of admissibility in the ROC and
authenticated through methods in the REE
 When is an electronic document the equivalent of an original under
the Best Evidence Rule?
o 1. If it is a printout or output readable by sight or other means
AND
o 2. It is shown to reflect the data accurately
 When are copies treated as equivalents of originals?
o 1. Document is in 2 or more copies executed at or about the
same time with identical contents OR
o 2. Counterpart produced from same impression or matrix as
the original, or through mechanical/electronic re-recording, or
chemical reproduction
o When are the copies not admissible to the same extent as
an original?
 1. There is genuine question as to authenticity of the
 What are the means by which an electronic
document authenticated?
o 1. Evidence that it had been digitally signed by the
person purported to have signed it
o 2. Evidence that other appropriate security procedures or
devices as may be authorized by the SC/law were applied
to the document
o 3. Other evidence showing integrity/reliability to the
judge‟s satisfaction
 What is the equivalent of a notarized document under the ROC?
o Documents that are electronically notarized
 What is an electronic signature?
 What is a digital signature?
o Distinctive mark, characteristic, or sound in electronic form
representing the identity of a person and attached to an
electronic document with intent of authenticating, signing,
or approving it
 N.B. electronic signatures include digital signatures
o How is an electronic signature authenticated?
 1. Evidence that a method or process was utilized
to establish a digital signature and verify the same
 2. Other means provided by law
 3. Other means satisfactory to the judge
o What are the disputable presumptions relating to the
electronic signature?
 1. It is that of the person to whom it correlates
 2.it was affixed by that person with intent to
authenticate or approve the electronic document,
or indicate consent
 3. Methods or processes utilized to affix or verify the
electronic signature operated without error or fault
o Electronic signature consisting of a transformation of an
electronic document using asymmetric or public cryptosystem
such that a person having the initial untransformed
electronic document and the signer‟s public key can
determine:
 1. whether the transformation was created using the
private key (corresponding to the public key) and
 2. whether the electronic document has been altered
 o What are the disputable presumptions re: a digital  Yes, as long as they can communicate.
signature?  Who are disqualified?
 1. Information in the certificate is correct
 2. Digital signature was created during
operation period of a certificate
 3. Message associated with a digital signature has not
been altered from the time it was signed
 4. Certificate had been issued by the
certification authority
 What is the additional exception to the hearsay rule added by the
REE?
o Business records are an exception to the hearsay rule.
o These are data made by electronic, optical, or similar means at
or near the time of transmission of information, kept in
regular course of business, and it was regular practice to
get such data.
o Who testifies as to these circumstances?
 By the custodian of the information or other qualified
witness
o How is the presumption overcome?
 Evidence of untrustworthiness of the source of
information or the method for preparation,
transmission, or storage of data
 See discussion on audio, photographic, video, and ephemeral evidence

Testimonial evidence

 Who can become witnesses?

o Those who can perceive, and in perceiving, can make
their perceptions known to others
o Two steps:
 1. Perceiving
 2. Making known this perception to others
 How can you make your perception known to another?
o You must be able to communicate it
o Can a deaf-mute testify? A blind person?
o 1. Those whose mental condition, at the time of presentation, is o 2. Children whose mental maturity makes them incapable
such that they cannot intelligently make known their perception to of perceiving the facts and relating them truthfully
others  What is the presumption?
 X perceived. Then X became insane. Then X had a  Every child is presumed qualified to be a
lucid interval during presentation of witness. Can X witness.
testify?  Under the Child Witness Rule (CWR), who
 Yes. The requirement is during his/her determines the competency of the child to testify?
presentation.  The judge, who conducts a competency
 What is the presumption? examination – ONLY when there is
 That a witness is of sound mind. challenge of a child‟s competency
 What is the exception?  Parties can only submit questions, but the
o He was publicly known as insane or judge has discretion
committed in a mental institution.  When is there a competency examination?
 When must objections to competency of witnesses be  Upon motion of a party or there is
made? substantial doubt regarding the child‟s ability
as witness
 1. If incapacity is known before trial, before he
takes the witness stand  Who are present in the competency
examination?
 2. If it becomes apparent during trial, as soon as
o Judge and court personnel,
incompetency becomes apparent
counsels, guardian ad litem,
 support persons for child, defendant reason cannot testify in open court
(unless court deems it o 2. Usual exceptions in Rule 23
determinable even without the
 Who is a facilitator?
defendant present)
 Is competency dictated by the age of the child?
 No. Mental maturity dictates, even prior
to the Child Witness Rule.
 Who is a child witness under the CWR?
 Accused
 Victim
 Witness
 To what type of cases does it apply to?
 “Criminal and non-criminal proceedings”
 What is a comfort object/person?
 One that puts the child at ease, like a doll or
a pillow
 Can you ask leading questions to a child?
 YES.
 What is the special requirement?
o Give notice to the other party
o And the judge must approve it first
 Can you use live-link TV?
 Yes, so the child will not be able to see the
accused.
 Ex. The child is in another room from the
judge/accused, etc.
 When can there be a videotaped deposition of the
child?
 1. Upon application of prosecutor, counsel,
or guardian ad litem
 2. If the court finds that the child will not be
able to testify in open court at trial
 When is it admissible in lieu of live
testimony?
o 1. As said, if the child for justifiable
  Appointed by the court to ask the
questions to the child as to not
pressure/harass the child
 How are the documents in these proceedings
treated?
 Considered confidential, not open to the
public
 What is the sexual abuse shield rule?
 The following evidence are inadmissible
in child sexual abuse cases:
o 1. Evidence offered to prove that
the alleged victim engaged in
other sexual behavior
o 2. Evidence offered to prove the
sexual predisposition of the
alleged victim
 What is the exception?
o Other sexual conduct of the child
to prove that another person, and
not the accused, was the source of
the semen, injury, or other
physical evidence
o N.B. before offering this kind of
evidence, there must be a written
motion at least 15 days before trial.
This motion is served on all parties
and the guardian ad litem at least 3
days before hearing. N.N.B. this is
different from the usual 10/3 rule.
 What is a protective order?
 One that states that any videotape or
audiotape of a child part of the court record
may only be viewed by the parties, counsel,
expert witness, or guardian ad litem.
 No such party may view it without written
affirmation that he has read the P.O. and
that in case of violation, he is subject to
contempt.
  Within 30 days from receipt, it must be o Does this extend to ascendants
returned to the clerk of court, unless and descendants?
extended.  Yes.
 What are the other protective orders?
 1. Publication of child‟s identity is
contemptuous
 2. Child can refuse to testify on personal
identifying information that can endanger his
physical safety or his family‟s
o Except if the court requires it
 3. Destruction of videotapes and
audiotapes after 5 years from entry of
judgment
 4. All records of a youthful offender charged,
after the charges are dropped, are
considered confidential information
o 3. DQ by marriage (sec. 22)
 What is prohibited here? What does it cover?
 Any testimony, for or against the spouse,
during marriage
 The other spouse must be a party
 What matters are covered?
 All matters
 Even confidential matters?
o Yes.
o After dissolution of the marriage, it
can fall under sec. 24 (privileged
communication)
 What are exempted?
 1. Civil case between the parties
o Does this extend to
ascendants and descendants?
 No.
 2. Criminal case of one spouse against
the other
  3. When the marriage is beyond repair,
and there is no more marital harmony to
preserve
 Does it survive even after termination of the
marriage?
 No. The DQ only lasts during marriage.
 Are these DQs waivable?
 Yes, by the affected spouse
 What if both spouses are co-defendants to
the case?
 As an exception, prosecution can call
one spouse as a hostile witness but
his/her testimony will only bind him or
herself, and not the other spouse who was
not called.
 When does this rule not apply?
o When there is charge of
collusive fraud between the
parties because inevitably,
evidence against the hostile
witness-spouse will be used
against the other spouse
o 4. “Dead man‟s statute”
 What is the DMS?
 Party/assignors of parties/beneficiaries
cannot testify as to matters of fact occurring
before the death or insanity of the other party
 What must be the nature of the action?
 Claim against the estate of the deceased
person or a person of unsound mind
 What about documentary evidence that will prove
the claim?
 Not covered by DMS. This prohibition only
extends to oral testimony.
 What is the rationale for this?
 To avoid self-interested perjury
 If death has sealed the lips of one party, then
it must also seal the lips of the other
 Does DMS apply if the heirs are sued?
 If in their representative capacity, then it
applies
  If in their personal capacity, it does not  Modern rule: if the parties took proper precautions but
 If a corporation is a party suing against the estate a third person still eavesdropped, the privilege is NOT
of the deceased, can the officers testify as to lost
matters of fact occurring before the death of the  When else is the privilege NOT lost?
person?  1. The spouse him or herself colluded with
 Yes, because they are mere employees the third party
of the party, and not parties or assignors,
or beneficiaries
 What if the representative of the deceased was
the one who brought suit?
 DMS does not apply because this case is a
suit by the estate and not against it
 Are negative facts barred by DMS?
 No, because negative facts are those
not
occurring before the death of the decedent
 Can DMS be waived?
 Yes.
o 5. Privileged communication:
 See below
 A. Marital privilege
o What are the requisites for marital privilege?
 1. Spouses legally married
 2. Communication is confidential and was made
during marriage
o What is the duration of the privilege?
 During or even after the marriage
 So it applies even after death or divorce
o What about dying declarations?
 They are not covered, because they
were communicated with intent to be
disclosed
o If a third party chanced upon the conversation, is it
covered by the privilege?
 Classic rule: no, the privilege is lost
  2. The spouse deliberately let the
information leak out
o If a child of sufficient age was present during
communication, is the communication privileged
between H and W?
 No. The child is a strange to the marriage.
o Distinguish from marital disqualification:
 DQ: covers adverse testimony; Privilege –
covers privileged communication
 DQ: only during marriage; Privilege – during or
after marriage
 DQ: one of the spouses is a party to the
case; Privilege – even if neither spouse is a party
 DQ: enjoyed by the affected spouse; Privilege –
either spouse has it
 B. Attorney-client
o What does it cover?
 Any advice or communication in the course of or
in view to professional employment
o Differentiate in the course of and in view to?
 In the course of – already retained
 In view to – preparatory
o What is covered?
 Communication by lawyer to client, and client
to lawyer
 It does not suppress underlying facts to the
communication
o X asked advice from Atty. Y, asking what the requirements
are to form a corporation. Is this covered by the privilege?
 No.
o X said that he had problems with his corporation, giving
particular details, names of incorporators, reasons,
details, and what are the requirements. Is this covered?
 Yes, even if the lawyer are not eventually retained.
o Does it recognize agency and what does it imply?
 Yes. The privilege extends to secretary, clerk, or
stenographer. That the information falls into their
hands does not affect the privileged nature of the
information.
o Does attorney-client extend to third parties? to implicating the client
 Yes, it can extend to the secretary, stenographer, or  2. Disclosure exposes him to civil liability
clerk.  3. Identity of the client is the last remaining link in the
 BUT not other third parties, where the privilege is lost chain of testimony
upon having the information fall into their hands.
o Can it be waived?
 Yes.
o Note: if the relationship of the lawyer with the person is a
business relationship, you cannot invoke the privilege.
o X communicates confidential information to Y, believing
the latter to be a licensed lawyer when he in fact is not. It
is covered by the privilege?
 Yes, as long as the belief is reasonable
o Does the privilege cover pre-existing documents not
prepared by the client turned over to the lawyer?
 No, because they already were not privileged in
the hands of the client. Turning them over to the
lawyer does not clothe these documents with
privilege.
 What if the documents are prepared by the client
and then turned over to the lawyer?
 Covered by the privilege.
o The client showed to the lawyer the place where he
buried one of his victims. The lawyer checked the body
and saw it, but did not touch it or report it to the
authorities. The lawyer refused to disclose where the
body is. Is this covered?
 Yes. Covered.
o X disclosed to his lawyer that he plans to commit a crime.
Is this covered by the privilege?
 No. The privilege does not cover communication as
to a future crime. It only attaches to past crime.
o Does the privilege cover identity of the client?
 No, it‟s not privileged communication.
 What are the exceptions?
 1. Disclosure of identity would be tantamount

1
 o What is the work product doctrine?  What if he is an optometrist?
 One party cannot inquire into the  No, because he/she is not a doctor of
memoranda and files of the opposing client medicine
unless there is necessity or justification.  What if he is an ophthalmologist?
 C. Doctor-patient  Covered
o What are the requisites?  What about neurologist?
 1. Claimed in a civil case  Covered
 2. Person is authorized to practice medicine  What about psychologist?
 3. Person acquired the info in his  No, he must pursue further studies to be a
professional capacity doctor
 4. Info is necessary for him to act in that  What about psychiatrist?
capacity  Covered
 5. Disclosure of the information would tend
 Who is an obstetrician?
to blacken the client‟s reputation
o Can you invoke this privilege in a criminal case?  For pregnancy

 No, even if it would blacken your  Alternative medicine practitioners and

reputation. The privilege only covers civil iridologists?
cases.  No.
o Who is covered? o What is the key?
 Person must be a doctor of medicine,  You must be a doctor of medicine.
surgeon, or obstetrician

2
 o The husband wanted to present the findings of the doctor  2. Made to him in official confidence
on his spouse. Is the information covered by the  3. When the court finds public interest would suffer by
privilege? disclosure
 No. The husband is not authorized to practice
medicine.
o Can the privilege be waived?
 Yes.
o What if the doctor is merely presenting hypothetical facts
and is acting as an expert witness, is this covered?
 No.
 D. Priest-Penitent
o Requisites?
 1. Confession made to minister or priest in his
professional character, and in the course of discipline
enjoined by the practice of denomination
 2. Confession is of penitentiary character
o A protestant religion does not require confession through
a priest. If a protestant approaches her pastor and asks
for a confession and discloses information in the course
thereof, can the pastor invoke the privilege?
 No. It should be enjoined by the religious institution to
which he/she belongs.
 Just like a Catholic confessing to a nun – not covered
by the privilege.
o What if a group requires a public confession before a
crowd?
 Not covered by the privilege.
o If “confession” was to simply ask for guidance from a
minister, is it covered?
 No.
o Should the penitent be a member of that religious
institution to which the priest belongs to?
 No. The priest will not ask anyway.
 E. State Secrets
o What are the requisites?
 1. Communication to public officer
 o Who is the subject of the privilege? o What is this?
 The public office, as regards State secrets  Nobody may be compelled to testify against a direct
o Is this waivable? ascendant or descendant
 Yes. It should be done by the court, after application. o Is this waivable?

 E. Executive privilege
 Yes.

o See Neri case.

o In a criminal case, no descendant may be compelled to testify
against parents and grandparents, except:
o Is this waivable?
 When the testimony is indispensable in a crime
 Yes, by the president. against the descendant or by one parent against the
 F. Other privileges other
o 1. Secrecy of bank deposits
Admissions and confessions
o 2. Non-disclosure of trade secrets
o 3. Non-disclosure of who you voted for  What is section 26?
o 4. Newsman‟s privilege o The act, declaration, or confession of a relevant fact of a party
 As to sources may be given in evidence against him
o 5. Informer‟s privilege o What does this cover?
 As to identity  Extra-judicial admissions, because judicial
 You don‟t need to bring to the stand an informer admissions are already covered by the prior rule
(“what need not be proved”)
 G. Parental and Filial privilege
 Differentiate an admission from a declaration against interest:
Admission
Primary evidence – receivable even
if defendant is a witness
Competent only when declarant is a
party to the action, or someone
identified in legal interest with him
Need not have been considered
against his interest when made
Declaration against interest  Ex. if agent, it must be covered by the agency
Secondary evidence – only when the o 3. Common interest
declarant is unavailable as a witness
Competent in any action to which it
o 4. The relationship is established by other evidence other than
is relevant (although the declarant is the admission
not a party to the action)
The declarant knew, when it was
made to be against his interest

 What is the rule on self-serving admissions?

o In general, they are inadmissible. This extends even to
agents and diaries of the party.
o Exceptions?
 1. Part of res gestae
 2. In the form of a complaint or exclamations of pain
and suffering
 3. Part of the confession offered by prosecution
 4. When the credibility of the party has been assailed
 5. When offered by the opponent
 6. Waiver
 What is the general rule on a third party (“res alios inter actas”
rule)?
o As a general rule, the acts, declaration, or omission of a third
party cannot be used against you, except when it falls under
the exceptions (res alios inter actas)
 What are exceptions?
o 1. Agent or co-partner
o 2. Co-conspirator
o 3. Privies
o 4. Co-owner, joint debtor, joint interest
 What are the requisites for admission of co-partner or agent?
o N.B. these are more or less the same requisites in a
conspiracy
o 1. The admission should have been made during the
existence of the relationship
o 2. Done within the scope of the authority
  Ex. Special power of attorney, articles of
partnership, etc.
o Vehicular collision – other driver works for company, said
“I’m sorry. I was in a hurry, delivering goods for the
company.” You decide to file a case against the
company. Is the admission admissible?
 Yes, the driver was an agent of the company: a)
declaration, b) during existence of agency, c)
within scope of authority, d) relationship is proven
by other evidence
 Admissions of a co-conspirator – requisites?
o 1. Act/declaration relates to the furtherance of the conspiracy
 This is common design
o 2. During the conspiracy itself
o 3. The conspiracy is established by independent evidence
o X is one of the conspirators and he takes the
witness stand. Do these requisites have to apply?
 No. Remember, this rule only applies to extra-
judicial confessions. If there is a judicial admission
where the co-conspirator takes the stand, he can
make such declarations that bind the co-conspirators.
o X and Y were planning to rob a bank. W said, “X tried to
recruit me to join in the robbery by telling me that Y is in
the plan and they’ll make a million pesos.” Admissible
against both X and Y?
 Yes. 1) Statement is made by X, a co-conspirator; 2)
it was made during the course of the conspiracy, 3) it
was in furtherance of the conspiracy
o X and Y already robbed the bank. One year later, W
testified: “Y told me that he and X were the ones who
robbed the bank last year.” Admissible against both X
and Y?
 Only against Y, but not X.
o D was charged with importation of marijuana and
conspiracy to import marijuana. F told W (an undercover
agent) that he just finished marijuana imports with D and
he didn’t like the way D ran things, and that he would
rather do business with W. Admissible?
  No, because it was not in furtherance of the conspiracy with him.
alleged conspiracy between F and D. o No, these rules do not extend to cases already in court,
 Admission of joint owner, joint debtor, or one with joint interest – because there is an opportunity to cross examine.
requisites?
o 1. There is a joint interest
o 2. The act or declaration was made during existence of joint
interest
o 3. The act relates to the subject matter of joint interest
o N.B. common interest (ex. all are devisees in a will) is different
from joint interest
 Admission of privies – requisites?
o 1. Privity between the parties, where one derives title from the
other
o 2. Declaration made the when the privy held the property
o 3. It must have been made as to title over the property
o Give an example:
 X sold land to Y. While X holds the title to the
property, he made statements as regards his title to
the land. When Y holds the land, the statements
made by X can be used against her.
o What about statements made by transferors after the
transfer?
 In general, these are inadmissible against the
transferee.
 What are the exceptions?
 1. Made in the presence of the transferee
and the latter acquiesces or does not protest
 2. Where there has been a prima facie case
of fraud established (e.g. fraud in the
transfer)
 3. Where the evidence establishes a
continuing conspiracy to defraud – the
conspiracy exists between vendor and
vendee
 Do admissions of these third parties extend to court cases? Ex. Y
testified against X on the witness stand that it was X who was in
 Is an offer of compromise admissible in evidence?
o In civil cases, an offer of compromise is not an
implied admission of liability – it cannot be admitted as
evidence
o In criminal cases, it is treated as an implied admission
of liability
o What is the exception for criminal cases?
 1. When the law allows for compromise
 2. Quasi-offenses
 i.e. criminal negligence
o What about a plea of guilty later withdrawn or
an unaccepted plea of guilty to a lesser offense?
 It is not admissible in evidence against the accused.
o What about tax violations with penal sanctions?
 Yes, these can be compromised.
o Is extending offer for medical assistance to the victim
an implied admission?
 No.
 When is an offer to help admissible to
establish liability?
 When the offer to help is accompanied by an
admission of liability.
o Can offer of compromise by relatives bind the person?
 Only if the person had knowledge of it and did not
prevent his or her relatives.
o The JDR rule in criminal cases allows compromise where
(the court here in mediation offers compromise)?
 Libel
 Theft
 Estafa
 BP 22
 Criminal negligence
o What is covered by the compromise?
 Only the civil liability
 But in practice, once you compromise the civil liability,
usually the prosecution is no longer interested
o Compare with admissions of liability:
 An offer to settle when there is no controversy at the
time is not an offer of compromise but an admission
of liability
 Admission by silence o Ex. The manner in which the robbery was conducted is the
o What are the requisites? same, showing a system.

 1. Statement made in the party‟s presence or within  Examples:

his/her observation
 2. Fact would have naturally called for a reaction if not
true
 3. To deny is proper under the circumstances
 Ex. there were armed 5 men who were
speaking ill about X – his silence may simply
mean that he is being prudent
 4. Matter is within the party‟s knowledge
o X was making statements in the radio against Y, a public
official. If Y does not react to the radio caller, is this an
admission by silence?
 No. See requisite #1 below.
 Same with written letters.
o Does this apply to those under custodial investigation?
 No. Admission by silence does not apply in this case
because it would violate the person‟s constitutional
rights.

Previous conduct as evidence and character as evidence

 What is the general rule as to prior conduct?

o Generally not admissible.
o What are the exceptions?
 To establish intent, knowledge, identity, plan,
system, scheme, habit, custom, or usage, and the
like.
 Mr. X and his group robbed BPI in Makati. X and his group were
also suspected of robbing BPI in Intramuros. He was caught, and
a case was filed against him. If there is a separate criminal case
involving the robbery in BPI Intramuros, can the facts surrounding
the Makati BPI robbery be appreciated?
o No, not to establish a different robbery. But you can use it to
establish any of the exceptions outlined above.
o INTENT – ex. X charged for larceny of ring by substituting
a fake one for a real one: may admit the fact that the
same substitution occurred in two other stores where X
was examining as purchaser to negate honest mistake. //
X charged with larceny of purse: may admit the fact that
she asked a customer “is this your purse?” to show good
intent.
o GUILTY KNOWLEDGE – ex. X denied knowing the
combination of a safe which has been opened and whose
contents were stolen: may admit fact that X was seen
surreptitiously opening the safe before to show knowledge. //
X charged with uttering counterfeit money: may admit fact
that X tried to pay the same notes to three other persons to
show knowledge.
o IDENTITY – Robbery case where 7 robbers had stripes on
their faces, making identification difficult. But one had
pockmarks on his face and a scar on his left eyelid. The
fact that the same marks were found on an individual
robbing another house that night can be used to establish
identity.
o PLAN, DESIGN, OR SCHEME – Ex. D on trial for killing C.
May admit evidence that A and B were similarly killed by D,
and an insurance policy named as beneficiary all four of them
in that order (A, B, C, D) so that D killing C would fit the
grand design of receiving insurance proceeds.
o HABIT OR CUSTOM – If course of conduct in a prior dealing
is established as to render its continuance to the point in time
in the question, then admit evidence to show that he acted in
accordance with the habit.
 Ms. Y married Mr. A. She obtained insurance. A died. She married
B. She obtained insurance. B died. She married C. She obtained
insurance. C almost died due to poisoning. Are the previous
deaths admissible?
o Yes, but only to establish intent.
 What is the rule on unaccepted offer?
o An offer in writing to pay a sum of money or deliver a written
instrument/personal property, if rejected without valid cause,
is equivalent to actual production and tender
 Character evidence:
o What is the general rule as to character evidence?
 It is not admissible.
 o Why is character evidence generally inadmissible? o Civil case:
 1. A person does not always act the same way  Evidence of MC of a party in a civil case is admissible
 2. To prevent prejudice, and only when pertinent to the issue of character involved in
the case
 3. To prevent multiplicity of issues
o N.B. Make sure you distinguish civil and criminal cases
o When is it applicable?
 Only when there is a character trait in the offense
charged
 Ex. for murder/homicide – violence
 Ex. for estafa – dishonesty
 Ex. for rape – sexual perversity of accused
o For victim, chastity
o What offenses have no character traits?
 Those covered by special laws;
 Ex. BP 22
 Ex. illegal possession of firearms
 How to prove character evidence:
o 1. Personal opinion – inadmissible
o 2. General community reputation – admissible
o 3. Previous conduct – inadmissible [generally]
 Exceptions to general rule that character evidence is inadmissible:
o Criminal case:
 1. Character of the accused:
 Accused may prove GMC which is
pertinent to the moral trait involved in the
offense charged
 Prosecution may only prove BMC of
accused which is pertinent to the moral trait
involved in the offense charged in rebuttal
 2. Character of offended party
 GMC or BMC of the offended party may
be proved if it tends to establish in any
reasonable degree the probability or
improbability of the offense charged
  So can there be character evidence
when there is no issue of character in
the case?
o No.
o 3. For witnesses (regardless):
 Evidence of GMC of a witness is not admissible
until such character has been impeached.
 What are the exceptions?
Hearsay rule and exceptions
 What is the hearsay rule?
o A witness may only testify as to matters within his
personal knowledge
 What is independent relevant statement?
o When the statement is the fact of issue, or when the
statement is circumstantial evidence of the facts in issue.
o During Erap impeachment, his former Secretary
Is it hearsay?
 No, it‟s not hearsay. The conversation actually
happened and he can testify as to the conversation
and what happened.

But as to the truthfulness of these statements, they
have to be established separately.
o 1. Dying declaration
o 2. Declaration against interest
o 3. Act or declaration about pedigree
o 4. Family reputation or tradition regarding pedigree
o 5. Common reputation
o 6. Part of res gestae
o 7. Entries in the course of business
o 8. Entries in official records
o 9. Commercial lists, and the like

Espiritu was placed on the stand and was asked about o 10. Learned treatises
matters he conversed about with Estrada. He started o 11. Prior testimony
talking, and there was an objection that is was hearsay.
Declarations Reputation Entries
Dying declaration As to pedigree Course of business
Declaration against Common reputation Official record  3. Would not have made that statement had it not
interest been true
Declaration about Commercial lists
pedigree
Res gestae Learned treatises
Prior testimony

[Declarations]

 1. Dying declaration
o Requisites
 1. The dying person is under the consciousness of
his impending death
 2. Declaration relates to the
facts/circumstances pertaining to the death
 3. He should eventually die
 4. The recipient of the information should be
competent to testify
o Does this extend to civil cases?
 Yes.
 As long as it pertains to the circumstances regarding
his death.
o There is a dying person on the floor and he calls X. He
told X to tell his wife to handle his bank account, tell his
children to manage the properties, etc. Is this the proper
subject of a dying declaration?
 No. It does not cover circumstances re: his death.
o What if he doesn’t die?
 It becomes part of res gestae
o What if the dying declarant made an ante-
mortem statement, in writing, be presented in evidence?
 Yes, because this exception covers memoranda.
 2. Declaration against interest
o Requisites?
 1. The person is dead/unavailable
 2. Made statement against his interest
 o Extends to declaration against pecuniary interest,
proprietary interest, criminal acts, etc.
o Why is this reliable?
 Because by human nature, nobody will make
a prejudicial statement against himself
 3. Act or declaration about pedigree
o What must be in issue?
 The pedigree of a person, even if not directly –
as long as it is relevant
o Requisites?
 1. The declarant is dead/unavailable
 2. Declarant related by birth or marriage to the
person whose pedigree is in question
 3. The relationship between the declarant and the
person whose pedigree is in question is shown
by independent evidence
 4. Declaration was made prior to the controversy
 So there is no motive to falsify
o Must the witness be related to the declarant?
 No. He need not be.
 But the relationship should be between the declarant
and the person whose pedigree is in question
 4. Res gestae
o What are the kinds of res gestae?
 A. Spontaneous statements
 B. Verbal acts
o Requisites of spontaneous statements?
 1. Startling occurrence
 2. Spontaneous statements
 3. Relating to the circumstances of the occurrence
o What is to be testified on?
 His spontaneous statement
o Why is this reliable?
 No time to fabricate
 After 24 hours, is it still a startling occurrence?
 Depends on how startled the person still is.
If he was able to go out malling already, etc.,
then there was time to fabricate.
o What are verbal acts?
  Statements made contemporaneous to an equivocal o Requisites?
act and characterizing it
 Give an example of an equivocal act.
 X handed a wad of cash to Y. This can
mean anything.
 Give an example of a contemporaneous act
characterizing the equivocal act.
 “I am lending this to you.”
 NOTE: If Y testified, it‟s not hearsay because it was
told to him personally. If a third person who
overheard it testified, this is when the exception
applies.
 5. Prior testimony/deposition of a witness
o Requisites?
 1. Witness is dead/unable to testify
 2. Identity of parties
 3. Identity of issues
 4. Opportunity to cross-examine in the prior case

Dying Against int Pedigree Res Gestae Prior testi

Dead/unav Dead/unav Dead/unav Even if alive Dead/unav
Facts re: Statement About Relating to Same issues
death against pedigree of startling testified on
interest person in Q occurrence
Knows he‟s Wouldn‟t Made prior During or Prior case
dying have said it if to near such between
not true controversy startling same parties
occurrence
Relationship Identity of
by blood or parties
marriage
Independent
evidence of
relationship

[Reputation]

 1. Family reputation or tradition regarding pedigree

  1. There is controversy re: pedigree of any member
of the family
 2. Reputation or tradition existed prior to
the controversy
 3. Witness testifying must be a member of the family
of that person, by consanguinity or affinity
 Or proved by family bibles, rings, etc.
o What is reputation?
 How other people perceive one to be.
o Can reputation be wrong?
 Yes.
 This is different from character – who one really is
o Who will testify?
 A member of the family by marriage or consanguinity.
This is unlike declaration about pedigree.
o What else?
 Family bibles, charts, rings, engravings, etc.
 2. Common reputation
o A. Public knowledge of more than 30 years
 This has a partner provision in documentary evidence
(“ancient documents”)
 Give an example of public knowledge of more
than 30 years.
 There is a marker in the barangay disclosing
information on the founding of the barangay.
 Sometimes it can border on history,
which will then become subject to judicial
notice
o B. Reputation about marriage
 How do you develop a reputation re: marriage?
 When people perceive them to be married.
Ex. living in one house, with children, etc.
Even if this is not true.
o C. Reputation as to moral
character [Entries]
 1. Entries made in the regular course of business
o Requisites?
 1. The person is dead/unavailable
  2. Made the entry in a position to know the facts, in relied upon
professional capacity o How do you use this?
 3. Entries made at or near the time of transaction  Just present the commercial list, no need to present
the writer
 4. Done in the regular course of business
o Give examples
o Who is ideally the person testifying?
 The one who actually made the entries. This
exception only applies if he/she is dead or unable
to testify.
o Who will then testify on his/her behalf if this occurs?
 Person who is also in a position to know the facts
 2. Entries in official records
o Requisites?
 1. Made by public officer or person enjoined by law to
make entry
 2. Made in performance of duty
 3. Had sufficient knowledge of the facts, personally or
through official information
o Does the official have to be dead/unavailable?
 No.
o How do you use this provision?
 Secure a certified true copy, then you identify it and
present it in court
 When do you present the original only?
 If there is issue as to its genuineness
o Reason behind this provision?
 As to not waste the time of the public official
 3. Commercial lists
o Requisites?
 1. Contained in published compilation
 2. Generally relied upon by these persons
 3. Statements are matters of interest to these persons
engaged in the occupation
o Why can you use this listing?
 It is used by the members of the profession and it is
  SCRA (which is not an official publication, but
used and relied upon)
 Buy and Sell paper NO. Because it is used,
but not reliable.
 Stock Market listings
 4. Learned treatises
o Covers history, science, law, and the arts ONLY
o So it won‟t cover billiards, or whatever
o How do you present?
 1. Court takes judicial notice that the writer is
an expert recognized in his profession
 2. Bring in an expert witness to testify that the writer
is an expert in his profession
Opinion rule
 What is the opinion rule?
o It means that only an expert can give an opinion. An
ordinary witness cannot normally give an opinion.
 What can an expert testify on?
o Skill, knowledge, expertise, or training
 Is an academic degree required?
o No. Just the special skill, knowledge, expertise, or training.
Unless, of course, the knowledge or skill requires an academic
degree.
 There are two kinds of experts:
o 1. Expert with personal knowledge of the facts
 Ex. medico-legal officer who examined a dead body
o 2. Expert with no personal knowledge, only hypothetical facts
 Can an ordinary witness give an opinion?
o General rule: no.
o Exceptions:
 1. Handwriting of which he has sufficient familiarity
 2. Identity of which he has adequate knowledge
 Not required to know the name,
relationships, etc. Just as long as you can
sufficiently identify the person.
 3. Mental sanity of person with whom you
are acquainted with
  4. Impressions on emotion, behavior, condition,  1. Only when charged of an offense
appearance  2. And one is an accused in that case

Burden of proof and presumptions o 2. Presumption of regularity

 When does this arise?
 Distinguish burden of proof from burden of evidence?  1. There is a public officer
o Burden of proof sticks with the party from the beginning
until the end.
 Ex. Breach of contract for damages – burden starts
with the plaintiff and ends with the plaintiff
o Burden of evidence shifts
 What is the difference between conclusive and disputable
presumptions?
o Conclusive presumptions cannot be rebutted
 What are the conclusive presumptions?
o 1. Estoppel in pais
 This is regular estoppel
 Requisites:
 1. Representation
 2. Lack of knowledge in the other party
 3. Reliance
 Similar estoppel:
 Estoppel by silence
 Estoppel as to question of jurisdiction
o 2. Estoppel by deed
 What does “deed” mean?
 It means a written document
 This has a very limited application: only covers a
landlord-tenant relationship
 Upon signing the deed, it is a recognition of the
landlord‟s title. You can only challenge it after.
 What are common examples of disputable presumptions?
o 1. Presumption of innocence
 When does this arise?
  2. Performing his official function  What does absence for 7 years establish?
o 3. When a court renders a decision:  Death, for all purposes EXCEPT succession
 It acted within its jurisdiction  When does succession open?
 It passed upon all questions o After 10 years
o 4. On filiation  What if the person is over 75-years old?
 When a child is born within 300 hundred days of termination  After 5 years is enough to establish death
of the first marriage AND before 180 days after the  What are the “exceptional circumstances” that
solemnization of the second marriage it is considered to be establish death in a shorter period?
conceived from the first marriage
 1. Vessel or aircraft goes missing and
 When a child is born within 300 hundred days of termination he was not heard of for 4 years
of the first marriage AND after 180 days after
solemnization of the second marriage it is considered to be
 2. Person took part in armed hostilities and
missing for 4 years
conceived from the second marriage
 What if the child is born after 300 days after  3. Person under danger of death in other
dissolution of the marriage? circumstances and is missing for 4 years
 There is no presumption  What is the rule for marriage?

 Whoever alleges legitimacy or illegitimacy must

 Can contract subsequent marriage after
absence for 4 years
prove it
 What if the spouse disappeared under
o 5. Absence
exceptional circumstances?
 o 2 years of absence is enough against self-incrimination
 Is declaration of presumptive death of the  What if it’s only exposing him to civil liability?
spouse to contract subsequent marriage  You can ask the question
a special proceeding?
 But not if it exposes him to criminal penalty
o No.
o 3. Degrading or humiliating questions
o This is a summary procedure under
the Family Code
o 6. Survivorship for those who died due to calamity,
wreck, battle, or conflagration
 Follow what rule?
 Strength and age of the sexes
 For what purpose can this be used?
 ANY purpose except succession
 Allowed for:
 Insurance
 Survivorship

agreements Conduct of proceedings in the courts

 What is required before witnesses testify?

o Place the witness under oath or affirmation
o Oath – imploring divine guidance
o Affirmation – for those who don‟t believe in God
 Whose duty is it to receive evidence?
o The judge
 Can delegate to the clerk of court in certain instances
o How is it recorded?
 1. By stenographer
 2. By stenotype
 3. By any other means of recording found suitable by
the court
 What questions can you NOT ask to witnesses?
o 1. Immaterial, irrelevant, impertinent questions
o 2. Questions that expose him to criminal liability – violates right

1
 What is direct examination?
o Examination-in-chief of the prosecution presenting to
the witness facts relevant to the issue
o What is examination-in-chief?
 One that establishes what the prosecution seeks
to prove
 Evidence-in-chief is what your witness will testify on
in direct examination. So if you have eight
witnesses, you have eight evidences-in-chief
 What is cross examination?
o 1. Test the accuracy and truthfulness of witness‟ testimony
o 2. To elicit all information from the witness
o What matters can be raised, in general?
 “Matters touched upon on direct examination or
connected therewith… and to elicit all important
facts bearing upon the issue”
 So this is more on accord with the English rule, rather
than the American rule. Thus, matters are not
limited to those raised on direct.
o When does cross examination become a mere privilege?
2
 When the original cross-examination has ended
and the witness is simply recalled
 What is redirect examination?
o Allow a witness to explain or supplement matters raised in
cross-examination
o May the courts allow questions on matters not raised on
cross?
 Yes, in their sound discretion.
 What is re-cross examination?
o To examine matters raised in re-direct
o May the courts still allow questions on matters not raised
on redirect?
 Yes, again in their sound discretion
 What is the rule on recalling witnesses?
o It cannot be done without leave of court, which
exercises discretion based on the interests of justice
 What are leading questions?
o Questions which suggest to the witnesses the answer which
the examining party desires
 Are leading questions allowed? o What is the only evidence that cannot be used in
o As a rule, not allowed in direct examination. impeaching?
o When else can you ask leading questions?  Evidence of bad character (remember, this only
applies on rebuttal)
 1. Cross examination
 2. On preliminary matters
 Ex. “Mr. X, you said a while ago you were an
employee of the petitioner corporation. Are
you an employee?”
 3. Witness is ignorant, child of tender years, feeble-
minded, or deaf-mute
 And there is some difficulty to get direct and
intelligible answers
 4. Unwilling or hostile witness
 N.B. There must be a court declaration to
make a person a hostile witness
 Who is a hostile witness?
o 1. Adverse interest
o 2. Unjustified reluctance to testify
o 3. Misled the party into calling him
 5. Adverse witness – adverse party or
officer/director/managing agent of juridical person
who is an adverse party
 What are the two ways to impeach the witness?
o 1. Prior inconsistent statement
o 2. Contradictory evidence
 N.B. cannot impeach through contradictory evidence
on mere collateral matters
o 3. Reputation of the witness for honesty/truth/integrity of the
witness is bad
o 4. Producing court record for conviction for an offense
 May a party impeach his own witness?
o As a rule, no.
o Except when the witness is unwilling, hostile, or the adverse
party and the examining party has to have the court declare
him as a hostile witness
 o May the other party still cross-examine the
hostile witness?
 Yes.
 What are the two kinds of memorandum?
o 1. Present recollection revived
 Memorandum written by him or under his direction:
 A. When the fact occurred or
immediately after
 B. Any other time when it was still fresh
in his memory
o 2. Past recollection recorded
 Witness has no recollection but states that the
writing correctly reflected the transaction when
made
o When do these apply?
 In both cases he knew, he was in charge, or he
prepared it. That‟s why he can testify. So even if
there is no independent recollection, he can testify.
o What is the purpose?
 To refresh his memory
o What is the evidence?
 If the witness has independent recollection, then the
testimony is the evidence.
 If he has no independent recollection, the
memorandum itself is the evidence. But it must be
taken with caution.
 What is the rule of completeness?
o When a party gives as evidence part of an act, writing,
declaration, conversation, or record, the other party may
inquire into the whole of that evidence.
o What if it is one letter in a “chain” of letters?
 Admitting one necessarily allows the other letters in
the chain to be admitted
o What if part is privileged?
 It is waived.
Authentication of documents
 N.B. Whether public or private, the document must be authenticated.
 What are the kinds of public documents?
 o 1. Written official acts or records of sovereign authority o 1. Genuineness of the handwriting by anyone who saw the
 Whether Philippines or other country document executed or written
o 2. Documents duly acknowledged before a notary public o 2. Evidence of genuineness of the signature/handwriting of the
except wills maker
 Not just notarized, but must be acknowledged  How is genuineness of handwriting proved?
 Except last wills and testaments
o 3. Private documents recorded in a public office
 Ex. affidavit of adverse claim in a R.O.D.
 What are private documents?
o All other documents not falling under the prior three
 What is the distinction?
o Public documents are admissible without further proof of due
execution and genuineness; private writings must be proved as
to authenticity and due execution
o Public documents bind even third persons as evidence;
private documents only bind the parties as evidence
 How do you authenticate acts of sovereign authority?
o Certified true copy or official publication
o If it is from a foreign country?
 Certification from foreign service officer
 How do you authenticate a duly acknowledged document before
a Notary Public?
o Certificate of acknowledgement of the document itself
o If by chance, your copy is lost, where do you go?
 You could get a certified true copy from the RTC who
commissioned him to notarize documents (he
submits the books to the RTC)
 How do you authenticate private documents recorded in a
public
office?
o Can be proved by original record or a certified true copy
o Can there be a certificate of no record?
 Yes.
 How do you authenticate a private document?
 o 1. Witness believes it to be the handwriting of such  What is alteration?
person because: o When there is one, you have to account for it
 A. he saw the person write it or  1. There is consent
 B. he has seen writing purporting to be his, upon  2. There is knowledge
which the witness has acted upon or was
charged, thus acquiring knowledge of such
 3. Did not change the meaning

o 2. Comparison by the witness or the court with:  4. Properly or innocently made

 A. other writing admitted or treated as genuine by  Can you impugn judicial records?
the party against whom the evidence is offered or o Yes.
 B. proved to be genuine by the judge o How?
 What private documents need not be authenticated?  1. Want of jurisdiction
o 1. Ancient document  2. Collusion
o 2. Admitted by the adverse party  3. Fraud
o 3. Immaterial
Offer of evidence
o 4. Document need only be identified
 What is an ancient document – requisites?  What is the rule on formal offer?
o 1. Document existing for at least 30 years o Evidence must be offered, or else the court will not consider it
o 2. Unblemished as evidence
o 3. In the custody of one who must be with possession over it  When is it made?
 o After the documents as marked, and all the witnesses are  1. Incompetent
presented  2. Irrelevant
 Is offer of testimonial evidence the same?  3. improprer
o It‟s not, because it‟s made before you present the witness  What is proffer of evidence?
 When is objection made?
o Evidence offered orally: made immediately after offer is made
o Evidence offered in writing: within 3 days after notice of offer,
unless court allows different period
o Question propounded in oral examination: as soon as ground
becomes reasonably apparent
o FOR ALL: must specify grounds for objection
 What is a continuing objection?
o Objection of the same character after the grant or denial of the
same objection
o A one-time statement covering objections of the same
character
o Does it have to be ruled upon by the court?
 No.
 When does the court rule on the objection?
o Immediately after it was made. No need to state the reason for
overruling or sustaining it.
 Except if the objection was on two grounds;
court must state which ground was sustained.
o What is the exception?
 If the court needs reasonable time to decide. But the
ruling must still be given during trial to give the party
who posed the objection to meet the situation
o What if the evidence is erroneously rejected?
 Can be ground for new trial.
 UNLESS it would not have changed the decision.
 What is the rule on striking out answers?
o It applies when the witness answered the question even
before the adverse party had the chance to object
 And the objection is meritorious
o Upon motion, what answers can the court strike out?
 o This is tender of excluded evidence
o So for instance an excluded witness can still be
presented through an affidavit showing her qualifications and
the substance of her testimony – so it can be considered on
appeal
Weight and sufficiency of evidence
 What is the equipoise rule for preponderance of evidence?
o When there is equipoise, the party with the burden of
proof fails
 When the evidence of one side is stronger than the other, does
it mean there is already preponderance of evidence?
o No. One must still rely on the strength of one‟s case
rather than weakness of the other.
 Is an extra-judicial confession sufficient ground to convict
a person BRD?
o No. It must be corroborated by evidence of corpus delicti.
o But plea of guilty in open court is sufficient.
 What is needed for administrative cases in QJAs?
o Substantive evidence
o Where else does this standard apply?
 Investigations in the workplace
 QJAs that proceed like the NLRC
 Circumstantial evidence
o Can it be a basis of conviction?
 Yes
 There should be more than one circumstance
 And when taken together, they form proof beyond
reasonable doubt
o Can it be the basis of identification?
 Yes
 Can the judge stop the presentation of evidence?
o Yes, if the judge feels there is no more need for additional
evidence;
PART IV: SPECIAL PROCEEDINGS o 7. Hospitalization of insane persons
o 8. Habeas corpus

In general o 9. Change of name

 Distinguish between an ordinary civil action and a

special proceeding:

Civil action Spec pro

Enforce/protect right or Establish right, status, or particular
prevent/redress wrong fact
Private interests There‟s public interest – also binds
the world (generally). So it must be
published.
Formal pleadings Motions/application
Single appeal Multiple appeals
Notice of appeal (usually one page) Record of appeal (voluminous)
15 days 30 days

 Does the prior requirement of earnest efforts to

compromise between relatives apply to settlement of
estate?
o No. “Earnest efforts to compromise” does not apply here,
because that only applies to civil actions. Settlement of
estate is a special proceeding.
 Can the court in an ordinary action settle issues relating to
special proceedings?
o No. For instance, the complaint filed in the RTC was an
ordinary civil action for annulment of sale. An ordinary
action cannot settle issues relating to special and limited
jurisdiction of special court (ex. settlement of estate).
 Subject matters of special proceedings:
o 1. Settlement of estate
o 2. Escheat
o 3. Guardianship
o 4. Trustees
o 5. Adoption
o 6. Revocation of Adoption
 o 10. Voluntary dissolution of corporations now with the
SEC SETTLEMENT OF ESTATES
o 11. Judicial approval of voluntary recognition of minor
natural children no more natural children Extrajudicial settlement
o 12. Constitution of family home operation of law under FC
o 13. Declaration of absence and death  What are the modes of extra-judicially settling estate?
o 14. Cancellation/correction of entries in civil registry o 1. Extrajudicial settlement through public document filed
in ROD
 What other cases are considered special proceedings?
o 2. Ordinary action for partition (Rule 69)
o 1. Liquidation
o 3. Affidavit adjudicating estate to sole heir
o 2. Arbitration
o 3. Alternative Dispute Resolution (ADR)
 A judge reopened settlement proceedings for
intervening illegitimate children. Is this proper?
o 4. Corporate rehabilitation
o Yes, but he should have made them present evidence first
o 5. Writ of Amparo
to establish their right, prima facie.
o 6. Writ of Habeas data
 Can there be EJS even if there is an administrator already?
 What is the exception to the general rule that declaration o Yes. The State‟s underlying reason for favoring
of absence and presumptive death is a special extrajudicial settlement – cheaper, faster, simpler
proceeding?
o Two requisites:
o Declaration of presumptive death for purpose of remarriage
– applied FC rules on summary proceedings.
 1. Move for appointment of another
administrator (because it is a new estate
 What is the nature of special proceedings? already)
o Special proceedings are non contentious proceedings.
  2. 2 year period  annotate/lien
 Requirements for summary settlement? o Personal property:
o 1. Gross value of estate = 10K or less  File bond
o 2. Whether the decedent left a will or not, DOES  When is the decedent presumed to have left no debts?
NOT MATTER
o 3. Hearing from 1-3 months after last publication – 3
consecutive weeks in newspaper of GC in province + notice
to interested persons
o Why is it summary?
 No administrator or executor
o What must the court do?
 Determine if there are creditors
 Difference between summary settlement and usual
judicial probate/admin proceedings:
o No more portion where the court appoints an administrator
 Requisites for EJS?
o 1. No will
o 2. All heirs of legal age, or minors duly represented
o 3. No debts
 What are the procedural matters?
o Record in public document, submitted to ROD
o Publication of fact of EJS (so it‟s post hoc) in newspaper
of GC – 3 consecutive weeks in province
o Bond for personal property
 Can easily be disposed of
 Unlike real property which you can annotate
 What if there is an adverse claim?
o In summary settlement of estate (for small estates),
whatever adverse claim can be protected by annotation lis
pendens. This should not bar the distribution of the estate
 Procedure?
o Real property:
 Public instrument
 Registration (notice to the world)
 o When no creditor files a petition for letters of
administration within 2 years of the death of the
decedent
 Is it mandatory for heirs to have an EJ partition?
o No.
o General rule: settlement is judicial. If no will, no debts, all
heirs of legal age – EJ. But can still do judicial, if there are
good reasons. But a mere spat is not a good reason.
o The heirs can pray for:
 1. Dismissal of judicial case, if they‟re happy with
the partition
 2. Conversion of the action to an ordinary action for
partition
 What if it’s in a private instrument?
o Still valid.
o Note though, that for lack of registration, it will only bind
the heirs. In a case, the ones that donated the land post-
settlement were heirs so they should have been bound to
the EJ settlement.
 Does posting of a bond terminate the annotation of
adverse interest?
o No. The two year period has to lapse first.
o Could not substitute annotation with bond. The bond
only applies to personal properties.
 What if the heirs could not actually physically divide the property?
o Continued co-ownership could be allowed, by the
parties‟ agreement. No need for spec pro in this case.
 X left a will and died. Can the heirs enter into an EJ settlement
of the estate?
o Yes, as long as they submit the will for probate and the terms
of the EJ settlement do not vary the terms of the will. Probate
of a will is compulsory.
 What if an heir or creditor is excluded?
o Can go against bond (personal property) or the real
property within 2 years after settlement and distribution of
estate by petitioning for settlement of estate
o What if the person is a minor, incapacitated, is in prison,
or outside the Philippines?
 May present claim within 1 year from
disappearance of disability
 What are the remedies against EJS when a creditor or heir is o Domicile requires bodily presence in that place and also an
excluded? intention to make it one's domicile. For residence, no particular
o Excluded creditor length of time is required though; however, the residence must
be more than temporary.
 1. If personal, go against the bond
 2. If real, annotation
o Excluded heir
 1. Letters for administration
 2. Petition for probate of estate – 2 years
 3. Rescission/partition – 4 years
 4. Annulment on ground of fraud – 4 years
 From discovery of fraud
 5. Action reivindicatoria – 10 years
 Count from registration: when implied trust
is renounced (already claiming ownership)

Judicial settlement

 Which court has jurisdiction in probate/admin proceedings?

o JURISDICTION:
 MTC
 300,000 and below (outside MM)
 400,000 and below (MM)
 RTC
 Above 300,000 (outside MM)
 Above 400,000 (MM)
o VENUE
 Resident
 Where the person resided
 Non-resident
 Any place where estate is
 Differentiate residence from domicile:
o “Resides" should be viewed or understood in its popular
sense, meaning, the personal, actual or physical habitation of
a person, actual residence or place of abode. It signifies
physical presence in a place and actual stay thereat.
 Is venue waivable?
o Yes. As this issue is only a matter of VENUE, it is
not jurisdictional. Implication: it can be waived.
 What is the exclusion rule?
o When a probate court has taken cognizance of the
proceeding, it excludes all other courts.
 What is the meaning of “taking cognizance” in the exclusion rule?
o The court has to do something. So not where you first
filed, but the court that first acted.
 What is the “limited and special jurisdiction” of the probate court?
o General rule: probate court cannot pass upon issues of
ownership; can only pass judgment on jurisdiction or
probate of a will
o EXCEPTIONS:
 1. For purposes of inclusion in inventory
 If all of the parties are heirs and they
submit the issue of ownership to the
probate court and there is no third party
prejudiced
 Question of collation or advancement
 2. All the heirs consent
o What are the implications of this rule?
 The court cannot include in the estate
property registered in another‟s name
 The court cannot include in the inventory
property which belong to a third person
o But the court may:
 1. Issue warrants and compulsory processes to
carry into effect orders and judgments
 2. All other powers granted by law
 What issues can be resolved by the probate court?
o 1. Identity of the will
o 2. Due execution of the will
o 3. Capacity of the testator
 Maloles II v. Phillips: In the lifetime of the testator, he filed an
admission for probate. So when the nephew filed a motion to intervene,
the proceedings have already terminated. That‟s why when the
deemed executrix filed for letters of administration in another court, that
court said that the first court having jurisdiction over the first probate
proceedings must have jurisdiction.
 Alipio: Creditor collecting from CPG for a debt cannot sue the surviving o What about intrinsic validity?
spouse; must file a claim in the settlement of the estate of the  Cannot raise these issues as a general rule.
decedent.  Exception: when seen on the face of the will, or for
 Reyes: An adoption decree cannot be subject to collateral attack in a
practical purposes.
probate proceeding.  Does prescription apply in the probate of wills?
 Settlement of estate of a person presumed dead – how is
the estate dealt with?
o He is entitled to the balance of his estate after payment
of debts
o Balance may be recovered by mere motion in the same
case where he was declared presumptively dead

Production of will as necessary

 Why is probate mandatory?

o Policy of law is to allow a person to freely dispose his
property after death. Respect the wishes of the decedent.
 Why is probate necessary?
o A will that is not probated does not pass property.
o To prove due execution of the will
 What are the issues of due execution included in probate?
o 1. Compliance with formalities
o 2. Mental capacity
 What are the issues excluded from probate?
o Intrinsic aspect of the will (ex. preterition)
 What is the implication of allowance of the will in probate?
o Once a will has been probated, no more questions re:
validity of the will may be raised
o An order admitting the will to probate is considered final
and appealable.
 So it can be appealed
o “Probate” and “authentication” are the same: court really
just rules upon the extrinsic validity of the will.
o What is the rule on extrinsic validity as to probate?
 Conclusive as to due execution.
 o No. Prescription does not apply in the probate of wills. It is
not a right but a duty.
o Court‟s duty is to admit to probate unless one of the grounds
to oppose applies.
 Exception to probate?
o Summary settlement of estates – less than P10K (even if
there is a will)
 Because probate is mandatory, what are the responsibilities of
the custodian of the will or the executor?
o 1. Custodian of the will must within 20 days of learning of
death of testator‟s death, deliver to court or to named
executor
o 2. Executor – to court
 Within 20 days of learning of death
 OR if appointed after death, then within 20 days
 What happens if they fail to comply with the duties?
o Subjected to fine or
detention Allowance or disallowance of
the will
 Procedure for probate:
o 1. Application
o 2. Court to set hearing date and time
o 3. Publication (if testator is the one who petitioned, no need)
o 4. Notices sent
o 5. Hearing
 Who may file the application for petition?
o Executor, legatee, devisee, any person with interest
o Testator himself
 Distinguish probate of a will post-mortem and ante-mortem.
o Post-mortem –
 A. Executor, heir, administrator, or any interested
person can apply
 B. Notice given to compulsory heirs
 Notice given to all heirs too by publication
o Ante-mortem –
 A. The testator himself applies
 B. Notice given to compulsory heirs
 No notice to other heirs by publication
 When can it be filed?
 o Any time all interested persons and any order binds the whole world
 May the testator himself file? o Mandamus to undergo publication is not the proper remedy –
must appeal in due time and manner
o Yes.
 What is the rule on publication?
 What are the contents?
o 1. Jurisdictional facts
o 2. Names, addresses, ages of heirs, devisees, legatees
o 3. Probable value and character of property
o 4. Name of person for whom letters are prayed
o 5. If will not delivered to court, the name of the person
with custody thereof
 What are the jurisdictional facts?
o 1. The person executed a will
o 2. Died in province of RTC or if non-resident, owned
property there
o 4. Submit will to court
 Three ways of consolidating cases?
o 1. Recast and conduct one hearing only and one decision
o 2. Consolidate all cases into one hearing, one decision
o 3. Principal one heard and suspend others
 Who must the applicant be?
o Applicant must be executor of the will, or must have
custody over the will
 What must be submitted?
o Must submit original of the will; if mere copy, explain why.
 A will was submitted for probate. Can the heirs then decide to
just file a separate case for partition of property?
o Cannot file subsequent separate case for partition of
property, because everyone is bound through publication
(notice to whole world) of the probate proceedings
o Contrast this with situation where the heirs first prayed for
the dismissal of the settlement proceedings and converted it
to partition proceedings
 What is the nature of the probate proceeding?
o Probate of will is in rem; court acquires jurisdiction over
 o Newspaper of general circulation: published regularly, o No need for publication
appeals to general interest, bona fide subscription list o Notices only to compulsory heirs
o Need not wait full three weeks before the day set for hearing  What happens first during hearing?
st
(can publish for three consecutive weeks for 15 days – 1
th th o First, present jurisdictional facts (death certificate,
day, 8 day, 15 day)
barangay certificate, will, publication and notice, etc.):
 How do you serve notices?
 1. Attach three weeks publication
o 1. To place of residence
 2. Affidavit of publication
o 2. Prepaid
 What happens when there is an opponent for a holographic will?
o 3. Through mail (20 days prior to hearing)
o At least 3 witnesses who know the handwriting and
o 4. Personally (10 days prior to hearing)
signature of the testator must attest.
 What is the implication of failure to send personal notice? o May resort to expert witnesses
o If the addresses of the legatees and devisees are known,  If notarial will?
then failure to send personal notice is fatal.
o All the subscribing witnesses and the notary must attest
o Exception: if there was no notice sent because the
o If some are not there, explain
address indicated was wrong.
o Cabang: If probate of will is opposed, all subscribing
 What if non-compulsory heirs are not given notice?
witnesses of a notarial will must be presented. Here, just 1 –
o In a case, two heirs were not given notice (grandchild invalid.
and niece) but since they are not compulsory heirs, this o What are exceptions to the rule that for opposed wills,
was not fatal. one must present all the subscribing witnesses?
 What if it is the testator himself that submits the will for probate?
  Avera: if the issue was raised for the first time  What is the proceeding for a will allowed outside the country?
on appeal o 1. Upon due authentication of
 What if all the witnesses are outside the province of RTC?
 Will
o Take one witness‟s deposition
 AND order or decree of allowance
 What if the witnesses are dead?
o May admit other witnesses to prove due execution of
will. (Prove handwriting, etc.)
 What are the recourses of excluded heirs against a decree of
probate?
o 1. Relief from judgment
 (60 days from knowledge + 6 months from decree)
o 2. Certiorari (Rule 65)
o 3. Independent civil action (NCC, Art. 1114), assuming
decision is obtained through fraud
 What if the alterations on a holographic will were not dated
and signed?
o This non compliance with Arts 813 and 814 does not affect
extrinsic validity of the holographic will (which only
requires that it be written, dated, and signed)
 What if the original proponent of the will died?
o Substitute proponent‟s amended petition already deemed
to have fulfilled publication and notice.
 If the will is lost or destroyed, how can it be proved?
o 1. Establish its existence
o 2. It was fraudulently or accidentally lost/destroyed
o 3. Two credible witnesses prove its contents
 What are the rules for probate before foreign courts?
o The fact that a foreign court is a probate court must be
proved, in the absence of which, procedure assumed to be
the same as here in the Philippines
o Proof of foreign laws must be submitted

Allowance of will proved outside the Philippines and Administration of estate

thereunder
 o 2. Set hearing  When are letters testamentary issued?
o 3. Give notice as in the case of the original will presented o 1. Will has been
for allowance proved o 2. Person is
o 4. ALSO publication, not just notice (jurisprudence) competent o 3. Accept
 Difference between principal and ancillary administration? trust

o Ancillary administration is administration of the decedent‟s

o 4. Give bond
estate other than the one in which she lived, to dispose the  When is an administrator appointed?
property she owns there. This is subordinate to, and in aid o 1. When no executor in named or
of, principal administration. o 2. The executor is disqualified, he refuses the trust, or fails
o Duty of ancillary administrator is to present evidence to to give a bond or
support o 3. A person dies intestate
 To which properties does administration extend for these cases? o What is the procedure for the issuance of letters
o Administration only extends to property within State or of administration?
country where letter was granted  1. File petition
o No power beyond that.  2. Court sets hearing
 What does the court issue thereafter?  3. Issue order granting letters
o Certificate of allowance o What are the jurisdictional facts?

Letters testamentary and of  1. Death

 2. Place of death (residence)
administration
 3. Nonresident
 To whom is the letter of administration granted?
 o 1. Surviving spouse, next of kin, or both, or person o 2. Justice and equity demands opposing factions to be
appointed by the SS or next of kin represented
o 2. One or more of the principal creditors o 3. large or perplexing estate
 If the ones in #1 are incompetent or unwilling o 4. To satisfy all persons
 Or if they neglect to apply for administration within
30 days of death of decedent
 What is the nature of this 30 day disqualification?
 The 30-day rule disqualifying SS and next
of kin must only apply when there is good
reason to exclude them. (Gabriel)
 But some cases applied the 30 day
rule strictly
o 3. Any other person the court selects
o Must this order be followed?
 Yes.
o Who has discretion to appoint an administrator?
 The Court has discretion to appoint administrator.
Must show proof of filiation.
o Can the court pass upon issue of filiation?
 Yes, the court can pass upon filiation issue
in determining order of interested person as
administrators
 Who may not serve as administrators?
o 1. Minor
o 2. Non-resident
o 3. Unfit to perform (DILM)
 Drunkenness
 Improvidence
 Lack of understanding or integrity
 Moral turpitude conviction
o What if there is a claim of incapacity?
 Hold a hearing if there is claim of incapacity
or disqualification
 What are the grounds to appoint a co-administrator?
o 1. To represent different interests
1
 o 5. When person appointed entitled to have another
competent person assist him
 Up until when does the court have the power to appoint
an administrator or a co-administrator?
o Probate court may re-open the administration issue as long
as it retains J over spec pro.
o Ex. Appoint co-admin which knew details of estate.
 What if the administrator has some conflict of interest with part
of the properties being administered?
o Exclude the property in which the administrator had
conflicting interests as appellant and appellee
o Do not remove him as administrator, but just exclude him
from the property in question
Opposing issuance of Letters
 Can petitions for administration be opposed?
o Yes.
o On what grounds?
 1. Incompetency of the person prayed for
2
 2. Contestant‟s own right to be administrator
o To whom?
 To contestant or another person prayed for
 Sec 1 of Rule 79 – what does “A petition may at the same time
be filed for LOA with the will annexed”?
o When there is no executor or the one appointed is
incapacitated. Or when you are questioning the
will.
 Who are the ones who can file an opposition to the issuance
of letters?
o Interested persons. Interest must be direct, not just indirect
or contingent
 What if there is an heir who assigns his share during the
pendency of the proceeding?
o If assignment of share occurs in the pendency of the case, still
entitled to notice because the court retains jurisdiction over
the person and that person is still interested. The court must
approve assignment.
 What if the assignment occurs before settlement of estate?
 o If assignment of share occurs before settlement of estate,  After appeal, may the court still appoint administrators?
no interest anymore. o Yes.
 Is the fact that an administrator lacks capacity a o Nature of appeal in spec pro is record of appeal, so after the
jurisdictional issue? appeal, the court only loses jurisdiction over the subject of
o No. If the administrator is not an interested party, the motion
to dismiss filed by the opponent must not be based on lack of J
by the court, but lack of legal capacity of the administration.
o Administrator‟s capacity is not jurisdictional

fact. Special Administrators

 When do you appoint a special administrator?

o 1. When there is a delay in granting letters testamentary or of
administration by any cause (including appeal from
allowance or disallowance of the will)
o 2. If the executor or administrator himself has a claim against
the estate (but the SA is only for that limited purpose – for the
claim)
 What can an SA do?
o 1. Preserve property, rights, credits for future E/A
o 2. Maintain and commence suits as SA
o 3. Sell only perishable property and those ordered sold
o N.B. not liable to pay debts of the deceased
 Can there be two SAs?
o Yes. There can be two special administrators to
represent interests fairly and equitably.
 Can the court allow the SA to dispose of other property, and
not just perishables?
o Yes, but must liquidate first and prove ownership.
 De Guzman:
o Delay caused on probate due to analysis of validity of a
prior deed of donation covering the estate property is “any
cause” contemplated in provision re: delay and appointment
of SA.
o The partisan possession by respondents cannot replace
the neutral possession of SA.
 appeal, but not the spec pro. So it may continue to make
decisions re: appointment of administrators.
 Does the order of preference apply to SAs?
o No. Order of preference does not apply in appointment of
SA. Bonds of executors and administrators
 Can the probate court execute bonds too?
o Yes. Given that the probate court has the jurisdiction and
power to require bonds, then execution of bond is also
within jurisdiction of court.
 What are the two most important conditions in the bond?
o 1. Inventory within 3 months
o 2. Accounting within 1 year
Revocation of administration, death, resignation, removal
 Generally, when may the court remove executor OR administrator?
o 1. Neglects to render account and settle estate according
to law
o 2. Failure to perform order or judgment of court or duty
under ROC
o 3. Absconding
o 4. Becomes insane or incapable to discharge the trust
 When is another ground where the court may revoke letters
of administration?
o If a will has been proved and allowed by the probate court
 Who has discretion to remove the administrator?
o Removal of administrator lies within discretion of court
appointing him. BUT give that administrator his day in court
prior to removal.
o General rule: never interfere with discretion of the court.
 What if the administrator fails to render accounting?
o Rendering of accounting after 1 year is mandatory;
negligence is a ground for removal from appointment
 What is required to remove an administrator or executor?
o Sufficient evidence of failure to pay real estate tax and to
render proper accounting.
Inventory and appraisal  Can an executor/administrator have access over partnership
books?
 What should be included in the inventory? o Yes. It only extends to a partnership but not a corporation,
o All real and personal properties in estate because there is succession in corporation.
o In possession OR within knowledge
 What are not included?
o Provisions to be consumed or for family‟s subsistence
 When is the administrator supposed to submit the inventory?
o Within 3 months after appointment
o 3 month period to submit inventory is not a mandatory
period (Sebial)
 If the administrator fails to submit the inventory within 3 month
period, and the interested parties file a motion to remove him
as administrator, can the administrator invoke the Sebial case?
o No, he can still be removed. The Sebial doctrine is only
with re: the court being able to approve inventory filed
beyond 3 month period. (THUS, Sebial is a jurisdictional
issue.)
 Is the inventory conclusive on the issue of ownership?
o Inventory is merely provisional and is not determinative of
the issue of ownership. Separate action necessary to
determine issue of ownership and recover of possession.
 Who gets provisional support?
o 1. Widow, 2. Children (minor or incapacitated)
o That children are all of age, gainfully employed, or married
does not affect whether they should receive right to allowance
under Art. 188. The Civil Code makes no distinction; the ROC
cannot limit it. The wife that would get support is the
“legitimate spouse.”
o Grandchildren not entitled to provisional support from the
funds of the decedent‟s estate. The law limits allowance to
widow and children, and does not extend it to the
grandchildren.

General powers and duties of executors and administrators

 o Failure to comply with order of a court – what is
the consequence? Accountability and compensation of executors and administrators

 Partner can be held in contempt

 What is the rule on increase or loss of value?
 What is the power of the executor or administrator of the estate
o The E/A cannot profit on sale for amount greater than value –
of a deceased partner?
must account profits to the estate
o Can access records, books, and papers of the partnership o The E/A is not liable for losses without his fault
and demand the production of such from the other partners
 Until when does the duty to account apply?
 Is court approval needed to lease property of estate?
o Until the final order for closure and termination of
o No. Court approval not required prior to an administrator
administration. It lasts until the estate is wholly
leasing a property in the estate, because this is not an act settled.
of ownership.
o Even after final accounting, as long as there is administration.
 What is the prohibition as regards this lease?
 What if the executor or administrator resigns?
o The administrator cannot lease the property for himself,
o The duty applies notwithstanding the existence of
directly or indirectly (ex. acting as agent for the partnership
compromise agreement confirming his resignation as co-
leasing the property)
executor.
 What is the remedy to annul a contract?
o Duty cannot be waived or disregarded.
o Separate action to annul.
 What if the administrator uses the property of the decedent (ex.
 What is the extent of the rights of the A/E over the property? occupying it)?
o Exercise of rights of A/E over property is for payment of debt o He must account for it as may be agreed upon between
or for administration expenses. It is not absolute. him and the interested parties (akin to rentals)
 When does the administrator have to render account?
o Within one year from receipt of Letters.
o Punongbayan: Exceptional circumstance
 In this case, the co-administrator cannot be
compelled to account because he had only been co-
administrator for one day when it was filed. But the
denial of the motion to render account does not
preclude the co-administrator from rendering account,
but within 1 year from receipt of letters of
administration.
 What is the rule for attorney’s fees?
o Rule with respect to claiming fees: if lawyer and
administrator at the same time – cannot claim from estate,
but from the executor/administrator.
o If you are an administrator and engaged services from a
lawyer, then you can claim from the estate as expenses that
benefited the estate.
 What if the executor or administrator refuses to pay the
attorney’s fees, what are the modes of recourse of the lawyer?
o 1. File an action against admin but in his personal capacity
and not as admin.
o 2. File petition in the testate/intestate proceedings asking
court to direct payment of fees as an expense of
administration.
 In this option, essential to give notice to all heirs
and interested parties.
 May the law firm of the lawyer-admin claim attorney’s fees?
o Appointment of individual lawyer from a firm is separate from
that of his law firm – separate persons. The Law Office
cannot claim attorney‟s fees when it was not appointed co-
administrator. Instead, claim from the heirs that it helped, as
legal fees (but not as admin.)
 What is the nature of compensation?
o Compensation is in the nature of commissions, and not
attorney‟s fees.
o A greater sum than that provided in the rule is allowed in
special cases where the estate is large, and the settlement
was difficult, and required high degree of capacity (extent
of care) on the part of the E/A. –
 o What is the period for filing claims? o Only the share.
 Court sets a period not less than 6 months from  What if there is a debt subject to a mortgage – what are the
first notice but not more than 12 months options?
 If there is a creditor who fails to claim, with just o 1. Waive the mortgage and just completely claim from the
reason, the court may grant at most a 1 month estate
extension; but this must be before order of o 2. Judicially foreclose the mortgage
distribution
 You can recover the balance
 What claims are covered?
o 1. Money claims – (Rule 85, Sec 5)
 Arising from contract, express or implied
 Whether due, not due, contingent
o 2. Claims for funeral expenses and expenses in last sickness
o 3. Judgment for money
 Procedure:
o 1. Filing of claims
o 2. Answer (15 days)
 1. Admit
 2. Oppose
o 3. Goes to trial
 What is the statute of non-claims?
o Time period when a person may file claims against the estate
o After which, barred forever.
o Exception:
 Counter claims against the estate
 How do you file a claim?
o Present to clerk of court
o Together with:
 Contract
 Vouchers
 Affidavit explaining particulars
 What if solidary?
o Can file complete amount against the estate.
 What if joint?
 o 3. Extra-judicially foreclose the mortgage
 You cannot recover the deficit/balance
 What is the nature of a lease contract?
o A lease contract is transmissible. So when the wife took
over the business of her dead husband, renting certain
property, then there was transfer of interest to her. When
she failed to pay the rents, no need to go after deceased‟s
husband‟s estate; can go after wife.
 What if the will provided that the heirs should pay the money
debts of the estate?
o Even if the will stated that the heirs should religiously pay
the debt, the creditors must still file claims within the
settlement proceedings. There is no getting around Rule
86.
 X was the administrator of an estate. X hired Atty. Y. X died.
Does the claim of Atty. Y for fees survive notwithstanding X’s
death?
o Yes. The claim of the attorney survives because it is
against estate, not the administrator.
o A claim against a person, in her capacity as administrator,
can be filed at the court where a special proceeding for
settlement of the estate is pending.
 What if the decedent is one of many solidarily liable persons?
o Creditor can sue the living surety alone. This is allowed;
death of one creditor does not extinguish the surety‟s liability.
 What is the rule on lease rentals being assessed after the death of
the person? i.e. There were unpaid rentals accrued from April
1993 to December 1998, but the decedent passed away in 1989.
Do these claims pass to the estate?
o No, because the rentals accrued after his death.
o The general rule is that heirs are bound by the
contracts entered into by the predecessor-in-interest.
o Except if non-transmissible by:
 1. Nature
 2. Stipulation
 3. Provision of law
Actions by and against executors and administrators
 What are the claims filed against the executor or administrator by
name?
 o 1. Recovery of real/personal property o BUT if there is third person who asserts right to property
o 2. Claim for damages caused by the deceased contrary to decedent‟s, court has no authority to resolve the
o 3. All other actions/claims that survive issue. Separate action instituted to recover the property.

 What is the right of the E/A to bring or defend actions?

 Obando:

o 1. Recovery or protection of property or rights of the deceased

o Co-administrator was removed for presenting forged will.
Removal was still on appeal.
 As long as the action survives
o 2. May foreclose mortgages
 When are heirs barred from suing?
o When an E/A assumes the trust, heirs cannot file actions to
recover title or possession of property, or for damages until
there is an order by the court assigning the properties to
such heirs or the time for payment of debts has expired
o What if there is no E/A appointed yet?
 Heirs can sue even no administrator has been
appointed yet. (Here, cancellation of
extrajudicial settlement by other heirs)
 What are the inequitable situations remedied under Sec. 6 that
may
be filed by the E/A, heir, creditor, or any individual with interest?
o 1. Property of deceased was concealed, embezzled,
conveyed away by another person
o 2. Person knows deed, bond, contract, conveyance, etc
which contains evidence or discloses the right, title, interest,
or claim of the deceased to real or personal estate
o 3. Person has deceased‟s last will and testament:
o What may the court do in these situations?
 1. Examine the person on oath on such complaint
 2. May use interrogatories
 In writing and filed with clerk‟s office
 3. Punish for contempt
 4. Commit to prison
 An heir and an administrator are in conflict as to whether a
certain property must be included in the estate. What may the
court do?
o It may pass upon the issue for inventory purposes.
 o Other guy became the sole administrator. Co-admin sued for expenses or give security)
to nullify sale he made. o If the E/A refuses to do it, the creditors can do it, if they:
o Dismissed for lacking legal standing, but without prejudice.  1. Pay expenses of the suit
If his case gets reversed, and his appointment restored,  2. Give bond
then case may be re-filed without being barred by res
judicata.
 When is the bond not necessary?

 Villegas:
o When the property was
fraudulently conveyed in favor of
o The civil liability that completely arose from criminal liability
the E/A
was extinguished upon death. Cannot file claim against
estate.
o What is the effect?

o Remember which claims survive and which don‟t
(culpa criminal doesn‟t, for instance, but culpa
contractual does)
 What if there is embezzlement before the letters are issued?
o The fraudulent person is liable for double the value of the
property sold, embezzled, alienated, etc., for the benefit of
the estate
o The E/A files the action
 Who may file an action to recover property transferred in fraud
of creditors?
o The E/A, with the prompting of the creditors (who pay
 The creditors obtain a lien over the
properties recovered
Payment of debts of the estate
 The estate sometimes has debts. In this case, how must they
be paid?
o First, from the personal estate.
o Second, from real property not disposed of by will.
o Third, retention to meet contingent claims
 Kept for within 2 years after the expiration of period
of claims by creditors
  After 2 years, distribute property to heirs. But the a probate proceeding in another country
creditor, if the action ripens, may still go against the  What is the procedure involved?
heirs (not the estate anymore)
 What is the time to pay the debts?
o Not exceeding one year in the first instance
 Can it be extended?
o Yes, for not more than six months
 What if the estate is insolvent?
o Follow concurrence and preference of credits
 When the estate of partner has become insolvent, how must
claims against his separate property be prioritized?
o 1. Those owing to separate creditors
o 2. Those owing to partnership creditors
o 3. Those owing to partners by way of

contribution Sales, mortgages, other encumbrances

 Can the court authorize sale/mortgage/encumbrance of

real property?
o Yes.
o When?
 1. Personal estate is not sufficient to pay the debts.
 2. Sale of personal property may injure business
or estate
 …and the testator did not make provision for
payment of the debt (for both)
 How can an interested person stop the court order granting
authority to sell?
o Issue a bond to cover for claims of the creditors
 When can there be sale of real or personal property upon
application of the E/A, even when it is not for the payment of
debts, legacies, or expenses?
o 1. When it is shown that it would be beneficial to the
heirs, devisees, legatees, and other interested persons
o 2. To pay debts or legacies in another country where it
shown that the estate in the other country is not sufficient – in
 o 1. E/A files petition to court setting forth debts due, legacies,
or expenses, character of property, plus facts showing sale is
beneficial
o 2. Court fixes time and place for hearing
 With notice to interested persons
 Optional: publication or otherwise
o 3. Court may require E/A to give additional bond
conditioned on accounting of proceeds of sale
o 4. Court authorizes sale, mortgage, or encumbrance –
either private or public
o 5. Record in ROP
 Court, upon claim, may authorize conveyance of property to:
o 1. A person who contracted with deceased
o 2. Beneficiary where the deceased was a trustee
 Sale of real property – must it be with consent of court?
o Any disposition of estate property by an administration
or prospective heir pending final adjudication needs
court approval
o Unauthorized disposition can be annulled by the probate
court without need for separate action
o Can the intestate/probate court execute its order
annulling the sale?
 It can. No need for separate
court. Distribution and partition
 When is there distribution?
o No distribution shall be allowed until payment of debt,
funeral expenses, giving of allowance to widow, admin
expenses, estate tax, etc.
 Pay debts and expenses of administration
 Court doesn‟t motu propio order distribution
o Heirs/person requesting for distribution may file a bond
 Palicte –
o Heir can redeem properties that were sold to cover debts of
the decedent.
o But she cannot register them in her name yet, because
this would be tantamount to distribution.
 Who will pay expenses of administration?
 o E/A from the leftover of the property o The Sol-gen on behalf of the Republic.
o OR heirs/distributees, from their shares  Where does the solicitor general file the action?
 Reyes
o Barretto by will, left fishpond to wife Maria and who he thought
was his daughter, Salud. They executed project of partition,
which divided the fishpond between them. Therefore, when
Maria died, the probate court made a judgment that Salud was
not a legitimate daughter. Now, project of partition is
challenged; claim is that it is an illegal compromise on her civil
status. Held: Valid. Not a compromise, because there was no
litigation to be prevented. The distribution was also based on
will, and not the partition per se. And the will prevails here.
o When the court approved the project of partition, can it still
be contested?
 No.
 Normally, can be challenged before the order
of distribution
 Crucillo v. IAC
o Oral partition amongst heirs is valid.
 But just see the rules on w/n it binds third parties
o Proof: heirs exercised ownership over their shares
 De Leon
o Question is over inclusion of certain properties decedent
purportedly gave to his children inter vivos in inventory. RTC
issued an order stating those in the Motion for Collation are
subject to inclusion. Order was challenged, by Petitioners
stating that these properties were already titled in their name
and could not collaterally be attacked. CA: cannot challenge
Order for Collation because it has become final. HELD: CA
erred. The order is merely for inclusion in inventory which is
provisional. It is interlocutory. To talk about collation is
premature since there was no indication that debts have
been paid and the estate is ready for distribution.

Escheat

 Who can institute actions for escheats?

 o In court of province of last residence
o Or if outside Phils., where he has property
o What court?
 The provision says “CFI,” so now it‟s the RTC
 When will the hearing be held?
o Hearing scheduled not more than 6 months from petition
 What is the publication notice?
o Publish 6 consecutive weeks
 What is proved in the hearing?
o Prove that there is no heir
 Where does the property go?
o Personal property to municipality or city where he
last resided
o Real property municipality or city where it is located
o What if the deceased never resided in the Philippines?
 Whole estate assigned to municipality or city where
it is located
o Purpose of escheated estate:
 1. Public school in city/municipality
 2. Charitable institutions and centers
in city/municipality
 What is the other option?
o Can establish permanent trust
 If you are an heir up until when can you still recover an
escheated property?
o Five years from the date of such judgment
o Can a donee (but not an heir) recover the property?
 Yes, he is an interested party, because he claims
a right to the escheated property. He may appear
or oppose petition for escheat.
 What is the effect of a judgment in escheat?
o Conclusive against all persons with actual or
constructive notice
 Tan:
o Solicitor General is now the one that files the complaint –
but then, allow City (old Rules)
o 39 years of absence without hearing of that person: enough
– can presume death
Guardianship benefit of the ward, but one can show it by implication
– by establishing that it is for the wards‟ benefit
 Where do you institute petition for guardianship? o How long does the order of sale’s effectivity last?
o Where the minor or incompetent is found  1 year from the order
o Ex. Judge from La Union cannot take cognizance of case o What else can the proceeds of the sale be approved for?
over incompetent living in Pampanga
 In what particular court, if the person is a minor (over person
or property)?
o Family courts
 For incompetent (not a minor) – as regards property:
o Follow 300K/400K usual rule
o This shows if MTC or RTC
 If over person of incompetent (not a minor) regardless of amount
of property:
o Always RTC
 Who can petition?
o Relative, friend, other person, or DSWD
o Can the minor himself do so?
 Yes, as long as he is at least 14 years old
 What are the grounds?
o 1. Death, continued absence, incapacity of parents
o 2. suspension, termination, deprivation of parental authority
o 3. remarriage of surviving parent, if latter is unsuitable
to exercise parental authority
o 4. best interest of minor
 Must a parent still apply for guardianship?
o If the property of the child exceeds P50K you need to
petition for guardianship over the property
 When can the guardian sell or encumber the property of the ward?
o 1. The property of the estate is insufficient to maintain the
ward and his family
o 2. For education of the ward
o 3. For the benefit of the ward
 Need not explicitly state that the alienation is for the
  Investment of the same
 Who is preferred to become the guardian?
o The natural parent of the ward
 Parent is preferred over other guardians unless
there is good reason shown. Mere allegation of
moral unfitness is not valid per se
o In default –
 1. Surviving GP; if several, court chooses
 2. Older brother or sister over 21 unless unfit/DQ
 3. Actual custodian over 21 unless unfit/DQ
 4. Any other person, in court‟s sound discretion
 Procedure:
o 1. Petition
o 2. Time and place of hearing set
o 3. Give notice to all interested persons
o 4. Hearing conducted
o Is publication needed?
 No. This is not an affair that the public should
be apprised of.
 What happens before hearing?
o Social worker does case study on child
 Who are incompetents?
o 1. Suffering from civil interdiction
o 2. Hospitalized lepers
o 3. Prodigals
o 4. Illiterate deaf and dumb
 Ex. Grade 3, mind of 6 year old, illiterate –
shows incompetence
o 5. Unsound mind
o 6. Those who cannot without outside care take care of
their property
 To what situation can a spouse apply for guardianship over
property of the other spouse?
o Family Code article where the spouse automatically
assumes administration over his/her spouse‟s property only
applies to absent, separated-in-fact, abandoned spouse
o DOES NOT apply to incapacitated spouses (here, stroke)
 What is the extent of guardianship powers?
o Power of guardianship does not include alienation
 o But heirs‟ receipt of proceeds is deemed a ratification his trust
 Can the guardianship court pass upon issues of ownership? o 2. Wasted or mismanaged the estate

o No. The guardianship court cannot pass upon issues of o 3. Failed to render account or return for 30 days
ownership. It is the duty of the guardian to bring the proper o 4. Resigned from position
action.
 What are the conditions of the bond of the guardian?
o 1. Inventory within 3 months of appointment or discovery
of property
o 2. Faithfully execute duties of trust for ward‟s best interest
o 3. Render account: a) upon order of the court or when
required by the rules, and b) upon termination of guardianship
 Contrast with settlement of estate: in settlement,
account is every one year
o 4. Perform all orders of the court
 What are the duties of the guardian?
o 1. Settle accounts of the ward
o 2. Demand, sue for, and receive all debts due
 May compound or discharge, on receiving fair
and just dividend of the estate and effects
o 3. Appear and represent the ward in actions and special
proceedings
 Can the guardian join in partition proceedings of property held
by the ward as a joint or co-owner?
o Yes, but after hearing only, with notice to the relatives of
the ward and upon establishing necessity and propriety of
the action.
 When is the guardianship required to render an inventory to
court?
o 1. 3 months from appointment
o 2. 3 months from discovery of property not included in
the original inventory
o 3. Inventory and account from application of an
interested person
 Grounds to terminate guardianship?
o 1. Became insane or otherwise incapable of discharging
Trustees
 Who is a trustee?
o Can be made to carry in effect the provisions of a will or
a written instrument
o Appointed/confirmed in the probate court (if carrying out a
will) or the RTC where the property is located (for written
instrument)
 When can the court appoint a new trustee under a will or under
a written instrument?
o 1. When the testator in aw ill omitted to appoint a trustee in
the Philippines, and such appointment is necessary to carry
into effect the will‟s provisions
o 2. When a trustee under a written instrument declines,
resigns, dies, or is removed before the object of the trust is
accomplished
o What is the power of the new trustee?
 Same as the powers of the original trustee
 What if a trustee for property in the Philippines is appointed by
an instrument abroad?
o Must apply for appointment as trustee before the local
courts, or else, the trust can be declared vacant
 What are the conditions of the bond?
o 1. Make an inventory of all real and personal
property belonging to him as trustee
o 2. Faithfully discharge trust according to law, will, or
instrument o 3. Render account at least once a year, and upon
court order o 4. Upon expiration of trust, settle accounts in court
and deliver
property
 What are the requisites for the removal and resignation of the
trustee?
o 1. Petition by party beneficially interested in the trust
o 2. Notice to the trustee
o 3. Hearing
 What are the grounds for removal and resignation of the trustee?
o 1. Essential to interest of petitioners
o 2. Became insane
o 3. Incapable of discharging the trust or is unsuitable therefore
o 4. Resignation
 May the trustee sell the property? to adopt the latter‟s legitimate son/daughter
o Yes, but only upon court approval and after proving that it will  3. Certified by diplomatic or consular office that he
best effect the objects of the trust has legal capacity to adopt under his laws

Adoption

 Distinguish qualifications of a domestic adopter, from an alien

adopter under RA 8552, from an alien adopter under ICAA:
o Common qualifications of the adopter –
 [Capacity]
 1. Legal age
 2. Full civil capacity and legal rights
 3. At least 16 years older than the adoptee, except:
 Adopter is biological parent
 Adopter is spouse of adoptee‟s parent
 [Personal characteristics]
 4. GMC and not convicted of crime involving
moral turpitude
 5. Emotionally and psychologically capable of taking
care of child
 6. In a position to provide care/support
o Qualifications of an alien adopter –
 Same as common qualifications, plus:
 1. Country has diplomatic relations with the
Philippines
 2. Must be living at least 3 years in the Philippines
before adoption application and maintains
residence until the adoption decree is entered.
 EXCEPT:
 1. Former Filipino seeking to adopt
th
relative within 4 degree of consanguinity
 2. Married to Filipino spouse and seeking to
th
adopt the latter‟s relative within 4 degree
of consangunity
 3. Married to Filipino spouse and seeking

1
  4. At least 27 years old and 16 years older o Inter-country: RTC where adoptee resides
than adoptee, except:  Who must adopt?
 Adopter is biological parent o Husband and wife, jointly
 Adopter is spouse of adoptee‟s parent o What are the exceptions?
o Qualifications for adopter under inter-country adoption act:  1. Spouse adopting LC of the other
 Same as common qualifications, plus:  2. Spouse adopting own child
 1. Country has diplomatic relations with  Other spouse must consent
the Philippines
 3. Spouses legally separated
 2. At least 27 years old and 16 years older
 What are the legal effects of adoption?
than adoptee, except:
o 1. All legal ties between the biological parents and the adoptee
 Adopter is biological parent
are severed
 Adopter is spouse of adoptee‟s parent  Except when it is the biological parent that is
 3. If married, the spouse must jointly file for adoption the adopter
 4. Has capacity to act under national laws o 2. The adoptee becomes the LC of the adopter
and undergone counseling in the Philippines o 3. Adopter and adoptee obtain reciprocal successional rights
 5. Agrees to uphold UNCRC, Philippine Law, (just them)
and R&R of Inter-country adoption act  When can adoption be rescinded?
 Where to file application for adoption?
o 1. Repeated physical or verbal abuse by adopter
o Domestic: RTC where adopter resides
o 2. Attempt on life of adoptee

2
 o 3. Sexual assault or violence administrative proceeding. (Take note of this; new law and
never asked in the Bar.)
o 4. Abandonment/failure to comply with obligations
 Who may rescind the adoption?
 3. Legal adoption

o Just the adoptee. The adopter can never rescind the adoption.
 What is the effect of rescission?
o 1. It restores the parental authority of the biological parents,
if the adoptee is still a minor or incapacitated
o 2. The amended birth certificate is cancelled
o 3. Rights to succession are restored, but not as far as there
are already vested rights
 When is inter-country adoption allowed?
o Only as a last resort, and when it is in the best interest of
the child.

Case study: There was a child who was left outside of the house of a
childless couple and having noticed that no one is claiming the child,
the couple adopted the child. But they secured a birth certificate and
filled in the child’s details (simulation of birth), without applying for
legal adoption. The child grew up and when she applied for a visa to
the US, she was denied because she was found to not be the natural
child of the mother (who is sterile). What are implications and what
actions must be taken to correct the situation?

 1. Petition for correction/cancellation of entries, because the

birth certificate is false
o Where do you file it?
 The place where the entry was made or recorded
o Who are the parties; who are impleaded?
 Only the civil registrar (under the ROC)
 Under jurisprudence, include the child as well and
the declared parent of the child, and those whose
hereditary rights are affected (ex. Grandparents)
 2. Get certification that the child was neglected or abandoned
o Do you need a judicial declaration that the child
was neglected or abandoned?
o NO. You just need a certificate from DSWD from an
Habeas corpus, W rit of Amparo
 When can you file a Petition for Habeas Corpus?
o There must be 1. ARREST and 2. DETENTION
o What if it is mere disappearance?
 H.C. does not apply
 File a criminal case
 What must be the nature of the arrest/detention?
o It must be unlawful or illegal. It cannot be pursuant to a
valid arrest/detention.
 Detention in violation of the right to speedy disposition of
cases, and the petition for such is denied by the court, what can
you do?
o File petition for Writ of H.C.
 What is post-conviction petition for HC?
o Under rules on DNA evidence, even after conviction, if
the testing shows that there is no basis for the
conviction/detention, you can file petition for HC
 Where can WHC be filed?
o RTC, CA, or SC
 What is WHC on custody of minors?
o Not a regular WHC. Unlike in ordinary WHC where there is
no pre-trial, there is pre-trial here.
o See example below.
o X married Y, but were separated in fact. X requested Y for
some time with their child Z. Y allowed, but X never
returned Z. What is the remedy?
 Habeas corpus on custody of minors.
 What is the difference between preliminary citation and
a peremptory writ of HC?
o Preliminary citation:
 requires respondent to appear and show cause
why the peremptory writ should not be granted
o Peremptory writ:
 unconditionally commands the respondent to have
the body of the detainee produced before the court
 When is a WHC disallowed or discharged?
o 1. Person is lawfully detained or convicted
 o 2. Jurisdiction appears after the writ is allowed; cannot o 2. Name and personal circumstances of respondent, or
use defect in the process, judgment, or order as reason to description/assumed appellation
discharge the writ o 3. Right to life, liberty, security threatened by respondent
 What is the Writ of Amparo? (affidavit detailing how)
o Also instituted in the RTC, CA, SC o 4. Investigation conducted, and identity of investigator
o Can be filed at any time of day or night
o Does not just extend to actual or committed acts, but also
to threatened acts
o Who can file it?
 Not just the victim or family members
 Extends to religious institutions or NGOs
 What is the Writ of Habeas Data?
o Also instituted in RTC, CA, SC
 Contents of petition for HC?
o 1. Person imprisoned on whose behalf petition is filed
o 2. Officer or person under whom he is restrained or
imprisoned; if unknown, officer‟s assumed appellation;
person upon whom writ is served is deemed the person
intended
o 3. Place where he is detained if known
o 4. Copy of commitment or cause of detention of the person if
it can be produced without impairment of efficiency of the
remedy; if without legal authority – state it
 Return of WHC:
o 1. Whether or not he has the party in his custody or power, or
under restraint
o 2. If he does, the authority and cause thereof – with a copy
of the writ, order, or process
o 3. If the person cannot be produced, the nature or gravity
of sickness or infirmity which is the reason why he cannot
be produced in court without danger
o 4. If transferred to another person: to whom, for what
cause, when, and under what authority
 Contents of petition for amparo?
o 1. Personal circumstances of petitioner
 o 5. Actions and resources taken by petitioner to determine
fate of aggrieved, and identity of respondent
o 6. Relief prayed for
 Return of WOA, within 72 hours:
o 1. Lawful defenses to show no violation
o 2. Steps or actions taken by the respondent to determine
fate of aggrieved party and persons responsible
o 3. All relevant information in respondent‟s possession
o 4. If public official or employee, the actions taken to:
 a) verify identity of aggrieved party
 No, unlike in Habeas Corpus.
o What is the omnibus waiver rule in WOA?

All the defenses not raised on the return are
deemed waived
 What is the consequence of failure to file return?
o Ex parte hearing
 Can there be institution of separate civil, criminal, or
administrative action notwithstanding a petition for
WOA?
o Yes.

 b) recover and preserve evidence  What is the effect of filing a criminal action?

 c) identify witnesses
 d) determine cause, manner, location, time of
death or disappearance
 e) indentify and apprehend the person or
persons involved
 f) bring suspected offenders to court
o Is a general denial of allegations allowed in WOA?
o The petition for WOA is always consolidated with it,
whether filed ahead or later
 What is the quantum of proof required for petition for WOA?
o Substantial evidence
o On the defense?
 Private persons: ordinary diligence in duties
 Public officials: extraordinary diligence in duties

Habeas Corpus Amparo Habeas Data

Remedy To all cases of Any person whose …same as
illegal confinement right to life, liberty, amparo, but the
 or detention: 1) and security is person must be issuance
person is deprived violated/threatened engaged in 1) Why is it like this?
of liberty, or 2) by unlawful act or gathering, 2) This way, it‟s not
rightful custody of omission of public collecting, 3) dependent on the
any person official, public storing data or filing of the return
withheld from the employee, or private information Service Served on person If cannot do it Same as WOA
person entitled individual/entity regarding the to whom it is personally, then
thereto person directed; if cannot substituted service
Petitioner Party for whose Aggrieved party, or In general: be found or not
relief it is intended, any qualified person aggrieved party with custody, then
by some other or entity in the order Except for EJ to person with
person on his in sec. 2: (1. killings and custody
behalf Immediate family enforced Return Signed and sworn Verified written return Same as WOA
member, 2. Relative disappearances: to if prisoner not
th
to 4 degree of 1) immediate produced Within 5 days from
consanguinity, 3. family, 2) in service, without
Concerned citizen, default, relative N.B. no period extension
th
org, assoc, etc.) to 4 degree of specified for return
consanguinity Penalties Clerk who doesn‟t Clerk who doesn‟t Same as WOA
issue writ. issue writ.
N.B. no Person fails to Deputized person
concerned make return, who doesn‟t
citizen, etc. makes false return, serve the writ.
Venue SC, CA, or SB SC, CA, or SB: SC, CA, or SB: refuses to deliver Person fails to make
Manila Manila person demanding return, makes false
RTC: (within 6 hours) the return, or
1) Plaintiff‟s RTC where the RTC: 1) where copy of warrant or disobeys/resists
residence violation occurred, or petitioner order of lawful court order.
2) Defendant‟s any of its elements resides, 2) commitment
residence where defendant
3) Where non- N.B. if the writ is resides, or 3) Interim 1) Court may 1) Temporary
resident issued by a higher has J over place reliefs adjourn for protection order
defendant is court, the writ is where data is good cause 2) Inspection order
found returnable to it or any gathered, etc. and make (5 days)
of the lower courts order for safe 3) Production order
(e.g. for SB, either keeping of (of documentary
there or RTC. For person or object or
SC, either CA, SB, or 2) If person electronic
RTC) cannot be evidence)
Issuance Immediately once When in its face, Same as produced due 4) Witness
of writ it appears ought to issue Amparo, but to grave protection order
immediately within 3 days illness, court
Summary Upon filing of Not later than 7 days Not later than 10 must be N.B. 2 and 3 are
hearing return from issuance days from satisfied that both available to
 he cannot be respondent as well
produced
without danger
Judgment Discharge from Judgment within 10 Same as
confinement days. If proved by Amparo, but in
substantial evidence, addition, the
grant reliefs as judgment must
applicable. be enforced by
sheriffs or court
Standard of officers within 5
evidence? days
 Substantial
evidence
Diligence required
for defense?
 Private person:
ordinary
Separate
diligence
actions
 Public official:
extraordinary
diligence
Appeal Ordinary appeal, Rule 45 – petition for Same as WOA
48 hours from review on certioriari
notice of judgment with peculiar
features:
1) Appeal may
raise
questions of
law, fact, or
both Change of name (103)
2) Appeal 5
working  When can you ask for change of name?
days from o 1. Name is ridiculous, dishonorable, extremely hard
notice of
judgment to pronounce
3) Same o 2. Change will avoid confusion
priority as o 3. One has been continuously known as that name
habeas
corpus o 4. Surname causes embarrassment and the desire to change
cases it is not for a fraudulent purpose
o 5. Consequence of change of status
Archiving rule:
If court cannot  Can a person have the child’s Filipino middle name dropped
proceed due to for the purpose of integration with the Singaporean
community?
 o No.
 Where to file for change of name?
 o Surname: always in the courts o Cagandahan case: natural change in sex – allowed change
o First name: of sex and name
 Local civil registrar: o Silverio case: sex change procedure – did not allow
 If clerical
 If any of three grounds in section 4 of RA 103 108 RA 9048
Name of law Change of name Correction or Clerical Error Act
9048
cancellation of
 Courts: entries in civil
 Everything else registry
Subject matter Change of full Change or Change of first
 What to file? name corrections in name, nick
o 1. That petitioner is a bona fide resident of province where (substantial civil entries name, and civil
petition was filed for at least (3) years prior to the date of correction) (substantial) entries
such (typographical or
filing clerical errors)
Who may file Person desiring Person Person with
o 2. Cause for which change of petitioner‟s name is sought to change name interested in any direct and
o 3. Name asked for matter personal interest
concerning in correction
 RA 9255 –grounds by which an illegitimate child can use recorded civil
the father’s surname: status of person
o 1. Filiation recognized by father in civil register Venue RTC of province RTC of city or 1) LCR of city or
o 2. OR Admission in public document or private writings where petitioner province where municipality
o N.B. But the father can institute action for non- has resided the the registry is where record is
past 3 years; located 2) LCR of place
recognition anytime during his lifetime City of Manila: where interested
Juvenile and party is residing
Cancellation or correction of entries in the civil registry (108) Domestic 3) Phil.
Relations Court Consulates
 Notice given to: Petition 1) petitioner is SAME as 103 1) facts
contents bona fide necessary to
o LCR
resident (3 establish merits
o All persons interested years) 2) particular
 How long is publication? 2) cause erroneous entry
o 3 consecutive weeks (once a week) 3) name asked
for
 Tenor of proceedings: Summary, but not if there are Grounds 1) name Good and valid 1) Name
substantial changes: adversarial ridiculous, grounds ridiculous,
o For instance, if it is nullity or annulment, then it must be tainted with tainted with
in adversarial proceedings dishonor, dishonor,
extremely extremely
o But see RA 9048 – difficult to difficult to
 Removed from ambit of 108 typographical and write/pronounce write/pronounce
clerical errors, and change of first name/nick name 2) consequence 2) new first
 under the three stated grounds
 Differentiate sex change from intersex persons and implications
on change of name:
 of change of name or o 1. For the declaration of a representative or
status nickname
3) necessity to habitually and
o 2. Declaration of absence and appointment of a trustee
avoid confusion continuous used, or administrator
4) continuous and publicly  Who may file?
used and known known
by Filipino name, 3) avoid
o 1. Spouse present
unaware of alien confusion o 2. Testate heirs (must present an authentic copy of a will)
parentage o 3. Intestate heirs
5) sincere desire
to adopt Filipino o 4. With interest over absentee‟s property hinged on
name to erase suspensive condition of death
signs of alienage  When can it be filed?
Proceeding Judicial Summary (but Administrative
adversarial if o 1. Two years from disappearance and without news
there are about absentee
substantial o 2. Five years, in case he left an administrator in charge of
changes) his property
Notice Once a week for Once a week for Once a week for
3 consecutive 3 consecutive two consecutive
Appeal
weeks in weeks in weeks (publish
newspaper newspaper affidavit)
(notice of (notice of  Appeal can be taken from what orders or judgments in settlement
hearing) hearing) Posting of estates?
o 1. Allowance/disallowance of wills
Not 30 days
prior to election; o 2. Determines who are the lawful heirs of a deceased
not within 4 person or distributive shares
months of last o 3. Allows/disallows a claim, or claims presented on behalf of
publication of
the estate to offset a claim against it
notice
Appeal CA CA Civil Registrar o 4. Settlement of account of executor/admin/guardian
General o 5. Final determination in lower court of rights of the
party appealing
o 6. Final order or judgment rendered in the case, affecting
substantial rights of appealing person, unless it is an
order granting/denying MBT/MR
Family home
 Can the appointment of a Special Administrator be subject
 Do you need a judicial declaration of a family home? of appeal?

o No more. It‟s automatically constituted, under the o No.

Family Code.  What is the mode of appeal?
o Record on appeal
Absentees
 Venue Reglementary Publication rule
period
Settlement of Resident: where Record on EJ settlement: 3
 What is the purpose of the rule?
estate residing; appeal – 30 weeks pub (of Property of
days fact of incompetent not
Non-resident: settlement) minor – follow
where property 300k/400k rule
is Summary Adoption Venue: Family Record on None
settlement: 3 court of the appeal – 30
weeks pub (of province or city days
time and date of where the
hearing) adoptive parents
reside
[3 weeks Habeas corpus SC, CA, SB Ordinary appeal, None
successively for 48 hours from
proving will] Plaintiff‟s notice
Postal service residence
20 days before Defendant‟s
hearing, residence
personal service
10 days before OR
hearing Non-resident
defendant,
Claims: 3 weeks where property
successively, found
posted: 4 public Amparo Manila: SC, CA, Rule 45, but can None
places in SB raise issues of
province, 2 in law and fact, and
municipality RTC with within 5 days
Escheat Court in province Record of Once a week for jurisdiction over
of last residence appeal – 60 6 weeks where violation
days (hearing though or any of its
Non-resident: is at least 6 elements
where estate is months after happened
located order of court) Habeas data Manila: SC, CA, Rule 45, but can None
Guardianship Person of minor Record on None SB raise issues of
– in Family court appeal – 30 law and fact, and
where minor days Plaintiff‟s within 5 days
resides ; residence
Defendant‟s
Property of residence
minor – same OR
RTC with
Person of jurisdiction
incompetent, not where data is
minor – RTC of gathered,
residence collected, stored
Change of RTC of Record on Once a week for o What is a consent decree?
name plaintiff‟s appeal 3 weeks
residence for 3
years

Manila: Juvenile
and Domestic
Correction or relations
RTC withcourt Record on Once a week for
cancellation jurisdiction over appeal 3 weeks
place of registry
Clerical or LCR where Civil Registrar Once a week for
typographical record is, General 2 weeks
error – 9048 LCR of (affidavit
residence, or published)
Phil. consulate if
nonresident

ENVIRONMENTAL CASES

 What is the scope and applicability of the rule?

o Involves all civil, criminal, and special proceedings cases
pending before courts involving enforcement and violation of
all environmental and related laws
o Ex. Forestry code, Water code, Sanitation code, LLDA act,
Toxic substances and hazardous waste act, IPRA, Mining
act, Fisheries code, Clean Air act, Chainsaw act, etc.

Civil Procedure

 What is the rule on TROs?

o Except for the SC, no court can issue a TRO or
preliminary injunction against lawful acts of government
agencies enforcing environmental laws
 What happens in pre-trial?
o The parties are under oath in all PTCs.
o The judge must exert best effort to arrive at a settlement of
the dispute.
  It approves the agreement made by the parties in
accordance with law, morals, public order, and
public policy to protect right to balanced and
healthful ecology
 What are the prohibited pleadings and motions?
o 1. Motion to dismiss complaint
o 2. Motion for bill of particulars
o 3. Motion for extension of time to file pleadings
 Except to file an answer, where at most 15 days
can be given
o 4. Motion to declare defendant in default
o 5. Reply and rejoinder
o 6. Third party complaint
 What is a Temporary Environmental Protection Order (TEPO)?
 What reliefs can the court grant in a citizen suit?
o It is issued when the matter is of extreme urgency and
applicant will suffer from grave injustice or irreparable
injury
o Who may issue it?
 Executive judge of multi-sala court or presiding
judge of a single-sala court
o How is it issued?
 Ex-parte
o How long is it effective?
 72 hours from date of receipt, unless there is
summary hearing within the period to determine
whether the TEPO should be extended until the
end of the case
o When can a TEPO be dissolved?
 If it appears after the hearing that its issuance or
continuance would cause irreparable damage to
the party enjoined, and the applicant can be
compensated adequately
 How is the applicant compensated?
 The enjoined party has to file a bond
o 1. Proper reliefs including protection, preservation,
or rehabilitation of the environment
o 2. Payment of attorney‟s fees, costs of suit, litigation expenses
o 3. Require violator to submit program for rehab or
restoration of the environment
  Costs borne by the violator  1. Name and personal circumstances of petitioner
o 4. Require violator to contribute to a special trust fund for  2. Name and personal circumstances of respondent,
that purpose or his assumed appellation
 What is a PEPO and writ of continuing mandamus?
o It is a permanent Environmental Protection order. The court
can convert a TEPO into a PEPO.
o The court can also issue a writ of continuing mandamus
which requires performance of certain acts effective until
judgment is fully satisfied
o How can the court monitor this?
 Can require continuing reports to be filed
 What is a SLAPP?
o It is a Strategic Lawsuit Against Public Participation – a legal
action filed to vex, harass, exert undue pressure, or stifle any
legal recourse that a person, institution, or the government
has taken or is taking to enforce environmental laws
o What is the relevance of this?
 When a suit is filed against the aforementioned
persons, they can launch the defense that the suit is
a SLAPP and the court will have the plaintiff prove
that it‟s not
 5 days for plaintiff to respond, and summary
hearing within 15 days from comment or expiration
of the 5 day period

Special proceedings

 What is a Writ of Kalikasan?

o Remedy available to natural/juridical person or entity
authorized by law, PO, NGO, or registered public interest
group, on behalf of persons whose right to a balanced and
healthful ecology has been violated or threatened with
violation
– involving environmental damage of such magnitude as to
prejudice life, health, or property of inhabitants in two or
more cities or provinces
o Contents of the petition?
  3. A) Environmental law, rule, or regulation violated
or threatened to be violated, and B) the act or
omission complained of, and C) the environmental
damage of such magnitude as to affect life,
property, or health of inhabitants in two or more
cities or provinces
 4. Evidence to be presented
 5. CNFS
 6. Reliefs prayed for
o Where filed?
 CA or SC
o What are the prohibited pleadings and motions?
 1. MTD
 2. Motion for extension of time to file a return
 3. Motion for postponements
 4. Motion for BOP
 5. Counterclaim or cross-claim
 6. Third-party complaint
 7. Reply
 8. Motion to declare respondent in default
o What are the discovery measures that a party may file in
a verified motion?
 1. Ocular inspection
 2. Production or inspection of documents and things
 What are these for?
 To establish magnitude of the violation or
threat
 What is a writ of continuing mandamus?
o See above – this can also be a relief under special
proceedings to enjoin a government agency or instrumentality
to perform in connection with a law preserving or protecting
the environment
Criminal procedure
 Who may file?
o Any offended party, peace officer, or public officer charged with
enforcement of environmental law
 Rule on institution of criminal and civil actions?
 o Same rule as usual; civil is deemed filed along with the
criminal unless waived, reserved, or filed ahead
 When can there be arrest without warrant?
o 1. In flagrante delicto
o 2. Offense has just been committed and he has probable
offended party, or government agency that it will enter into
plea- bargaining on the date of arraignment
o What happens when the prosecution and offended party
agree to the plea bargain of the accused?
 1. Court issues order containing the plea-bargain

cause to believe based on personal knowledge that the

person arrested just committed it
 Does the presumption of regularity apply here?
 Yes, for individuals deputized by government
to enforce environmental laws
 What is the procedure for custody and disposition of seized
items?
o In accordance with laws or rules by the government
agency concerned. If none, follow the default rules:
o 1. Inventory and photograph where seized
o 2. Submit to court within 5 days of issuance of search
warrant or from seizure if warrantless arrest
o 3. Auction sale of seized items upon motion of any interested
party
 Notice to accused, person from whom items were
seized, owner thereof, government agency
concerned
 Posted in three conspicuous public places in the city
or municipality where seized
 Proceeds held in trust and deposited with
authorized government bank until disposition
 What is the rule on bail?
o 1. Bail filed where case is pending
o 2. If the judge is unavailable, with any RTC or MTC judge
in the province, city, or municipality
o 3. If arrested in any city, province, or municipality other
than where the case is filed – can file bail with any RTC of
said place, or if none, with any MTC judge
 What happens in arraignment?
o It is set within15 days from acquisition of jurisdiction over
the accused, with notice to the public prosecutor and
1
  2. It then receives evidence on the civil aspect of
the case, if any
 3. It renders and promulgates judgment of
conviction, including civil liability for damages
 What happens in pre-trial?
o 1. Set within 30 days from arraignment
 May refer to branch COC for preliminary
conference at least 3 days before pre-trial
o 2. During pre-trial, judge:
 Places parties under oath
 Adopts minutes of preliminary conference
and confirms markings of exhibits, admission
of documents, etc.
 Scrutinizes the information and statements
in affidavits to determine:
 Court‟s territorial jurisdiction as re offenses
 Qualification of expert witnesses
 Amount of damages
 Defines factual and legal issues
2
 Asks parties to agree to specific trial dates
 Requires parties to submit to the COC the
witnesses to be subpoenaed
 Considers modification of trial order if there is a
lawful defense interposed
o What is the rule on questions?
 All questions and statements must be directed
to court
o What is the rule on admissions and agreements, to bind
accused?
 Must be signed by accused and counsel
o When is the PTO issued?
 Within 10 days from termination of pre-trial
 What is the rule on subsidiary liability?
o When the accused is convicted and subsidiary liability is
allowed by law, the court may, upon motion of person
entitled to recover, enforce subsidiary liability against a
person or corporation subsidiarily liable under the RPC
Evidence
 What is the precautionary principle?
o When there is lack of full scientific certainty in establishing a
causal link between human acts and environmental
damage, the burden of proof that it is not harmful falls on
those taking the purportedly harmful action or policy
o What is given the benefit of doubt?
 Constitutional right of people to a balanced
and healthful ecology
o What are considered in applying the precautionary
principle?
 1. Threats to human life or health
 2. Inequity to present or future generations
 3. Prejudice to the environment without legal
consideration of the environmental rights of
those affected
 What is the rule on documentary evidence?
o 1. Photographic, video, or similar evidence of events, acts,
transactions of wildlife, by-products, or derivatives, forest
products or mineral resources subject of a case are
admissible if authenticated by the person who took the photo,
a person present during its taking, or some other person
competent to authenticate it
o 2. Entries in official records in the performance of duty of a
public officer are prima facie evidence of the facts stated
therein