Tranquil Preweek Lecture Nov. 20 To 21 Part 1 of 2 1

REMEDIAL LAW (RULE 13 – RULE 127): ATTY.
SALVADOR III LECTURE – 2017 BAR
R13 – FILING and SERVICE of PLEADINGS, JUDGEMENTS and OTHER PAPERS
 Priority of service is personal service EXCEPT for those originating from the court
 If cannot be served personally, you have to explain to the court why
 If you don’t explain, the pleading you filed produces NO legal effect
 Examples:
(1) Motion for Reconsideration – considered not filed; it means reglamentary period is not
interrupted; hence, judgement becomes final and executory
(2) Petition for Review under Rule 42, 43, 45  will be denied or dismissed
FILING Proof of service
A. Personal - if it appears on the record of the case
- if it does not appear, you need to show
your copy w/stamp of receipt
B. Registered Mail - affidavit of the person mailing

- the registry receipt
SERVICE (R13) Completeness Proof of service

A. Personal -actual delivery -written acknowledgement
1. Residence -official return
2. Office -affidavit of the person serving
B. Mail: -affidavit of the person mailing

-after the lapse of 10 days
Ordinary
(w/stamp)
-registry receipt
Registered -actual receipt OR
-affidavit of the person mailing
(w/registry receipt -expiration of the period of 5 days
-return card (should be filed in court)
and return card) from notice whichever comes first
Service originating from the court
A. Personal  official return served by the sheriff/server

B. Registered mail
 What if the entire document was returned  file the return card, together with the entire
document PLUS certification from the post office re the reason of return, to the court
 Is there substituted service? Yes, in Rule 13 Sec 8, which is different from Rule 14
 In R13 – there is proof of failure of personal service and service by mail; the unserved doc will
have to be filed in court
Reminder: If there is a bar exam question about service of summons you do not apply Rule 13,
you apply Rule 14 instead.
CASES
(1) Republic vs Cagioa (2013)

 To whom should service be made if there is a counsel of record -- to the party OR to the counsel of
record?
 Service of Pleadings – petition should be served on counsel of the party. Under our Rules of
Procedure, service of petition to a party when represented by a counsel of record – is a patent
nullity – not binding upon the parties wrongfully sent.
• RULE: The period will only commence to run when the copy is received by the counsel of record.
• XPN: When faced with compelling reasons of substantive justice and the circumstances of the case
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REMEDIAL LAW (RULE 13 – RULE 127): ATTY. SALVADOR III LECTURE – 2017 BAR
(2) Mindanao Terminal and Brokerage Service vs CA (2012)
 Mindanao Terminal is a grantee of Authority from the Phil Port Authority. They had a case. Phil Port
Authority won the case.
 CA served the Notice of the decision via registered mail to Atty Dizon. Rule - Compliance within a
period of 5 days. Notice was received by the receptionist of the bldg. where Atty Dizon holds office.
Decision became final and executory as no motion was received by CA.
 8 months after Atty Dizon file MR w/request for setting aside of the entry of judgement as he did
not received any notice of judgement.
 Atty. Dizon’s contention – since he did not received any notice of court’s judgement, the
reglamentary period to appeal has not commenced and therefore the decision is not final &
executory.
 Apparently, he already transferred office.
 SC: R13 S9 & S10 -

 Copy of the notice sent by the court & received by receptionist Dec 4, 2002
 Atty Dizon change of address – court was not informed until Nov 2003 + MR was filed ahead of the
notice of the change of address. The MR still bears the old address.
 Client lose a multi-million case due to negligence of the counsel.

(3) FEU vs FEU FR (labor case)
Order was posted (sa pader) – not personally, not by registered mail
(4) Aberca vs Ver
 Case involving the most trusted gen of late FM
 Before the fall of marcos they were sued for a lot of human rights violations in the court of QC –
case did not move for more than 2 decades
 There was a difficulty serving summons for the defendants including Ver – RTC QC ordered that the
notice to answer be published.
 SC: Publication is a wrong mode of service of something that originates from the court.
NOTICE OF LIS PENDENS R13 S 14
 is not litis pendentia
 is a notice that the prop is subject of a pending litigation
 action should involve TITLE TO, POSSESSION or INTEREST OVER REAL PROP
 EXAMPLE: - breach on construction contract – filed specific performance  can I cause annotation
of a NLP? NO, because this is a case of specific performance – an action that does not involved
property.
 the subsequent annotation of the notice of lis pendens could not defeat the rights of the mortgagee
or a buyer in the auction sale, who derived their rights under a prior mortgage validly registered
 a NLP cannot defeat an existing annotation or encumbrance
 Atlantic Erectors Case – By express provision of law the doctrine of lis pendens does not apply to
attachments, levies of execution, or the proceedings for probate of wills or the administration od
the estate of the deceased person. The doctrine has also no application when the relief sought is
pure money judgement.
 The property must be directly affecting the title, possession or interest
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PURPOSE OF A LIS PENDENS

1. to keep the prop in litigation w/in the power of the court
2. to announce to the whole world that the particular prop is in litigation – and buyer takes the risk
The same as - Notice on Delinquency Payment of condominium assessments –
Which court has the power to issue a Notice of Lis Pendens? RTC, CA
How do you cause the notice of the annotation of lis pendens? No need for an order from the court.
The harder part is to cancel it --- then you need an order of the court.
Reasons of cancellation –
1. When the annotation is just to molest the title of the other party
2. When the annotation is Not necessary to protect the title of the party who caused its annotation
Does it affect the merits of the case? NO. It does not also create a lien or right over the property.
Does it require that the proceeding be a judicial proceeding? – YES, it should be a judicial proceeding
When a NLP is appropriate: When NLP does not apply:

1. Action for recovery of possession of real 1. Prelim attachment
estate 2. Probate of will
2. Action to quiet title 3. Levies on execution
3. Action to remove clouds 4. Admin of estate of a deceased
4. Action for Partition person
5. Any other proceeding of any kind in court 5. Only object is recovery of a
directly affecting title to the land or the use money judgement
and occupation thereon or title thereon
SUMMONS - R14
Do you need proper service of subpoena for the prosecutor to acquire jurisdiction over the person of
the respondent in a case before the office of the prosecutor? NO!
Rule 112, Sec 3d – sa piskalya mas gusto ng kalaban mo wag kang sumagot. With or w/o your counter
affidavit the prosecutor will render a resolution. Just like what happened to Sen Delima – ayaw
sumagot. Preliminary investigation is not a constitutional right, that could even be dispensed with.
That’s why when Delima’s case information was filed in court, sabi ng judge – “E di ka sumagot eh,
probable cause lang kailangan ko e. Hindi ko dinismiss. Bakit? Eh wala kang sagot eh.” Yun dapat
sinagot. Para kahit saan umabot meron kang sagot.
Summons and subpoena are 2 diff matters –

Summons – court acquires jurisdiction by accord
Subpoena – a compulsory process; di ka sumagot problema mo yun, not of the prosecutor.
How do you serve summons?

NATUAL PERSONS
1. personal – (wherever he may be found)
a) handling
b) If refuse to accept – tender
2. Substituted – where there is impossibility of personal service for justifiable causes

>how would you know if there is impossibility?  through a copy of the sheriff’s returns to the plaintiff
(w/in 5 days – duty of the sheriff) Sheriff’s Return
>IMPOSSIBILITY = there should have been repeated attempts to serve - 3x in at least two separate
dates 1) to his residence – person of sufficient age and discretion
2) to his office – person in charge of the office = a Pres or GM
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 Can there be substituted service of summons if the defendant does not reside in the Phils?
Gen Rule: NO.
Exception: when the resident spouse has been designated as an attorney-in-fact of the non-resident
spouse in another action
Above rule is for action in personam. What about in action in rem and quasi in-rem?
> An action when there is no defendant is an action in

rem. > Quasi-in-rem =
Sec 15 – EXTRA-TERRITORIAL SERVICE
1. personal
2. service could be affected by publication = because the court needs to acquire jurisdiction over the
res, to comply with the requirement of due process
>one of the exceptions to the reqt of service of summons prior to or contemporaneous with a writ
of attachment is In Rem or /quasi in Rem. The order of attachment cannot be served ahead of the
summons because the court should first acquire jurisdiction over the person of the defendant.
>Rule 57 Sec 5 – the law requires that summons should be served simultaneously or prior to the order of
attachment together with the writs
>service of summons is necessary to acquire jurisdiction over the person of the defendant (part2d)
>Writ of Attachment  purpose: secure the judgement
> “service of summons prior to or contemporaneous with a writ of attachment”  bakit yan
importante? Kasi when I file a complaint I could also file for a writ of attachment. Sabay. Under our
rule if its part of an initiatory pleading – kasama ng complaint – this Writ of Attachment na kasama ng
complaint can be granted by the court ex parte. Once granted by the court an Order shall be issued.
>Such Writ and the Order cannot come ahead of the summons  because needs to first acquire
jurisdiction over the person of the defendant
Rule 14 Sec 14: Defendant’s identity/whereabouts are unknown

>Service by publication = in any action (in rem, quasi in rem, in personam)
JURIDICAL PERSONS
Domestic R14 S11 – service to the
1) Pres
2) GM
3) Corp Secretary
4) Managing partner
5) Treasurer
6) In-house counsel – employed by the company
>defendant is a corpo, partnership, ass’n organized under the laws of the Phils
>Cathay Metal vs Laguna West Multi-Purpose Coop
- land ownership award: land reform
-there is a coop, with an arrangement with the farmer beneficiaries
-farmers entered into irrevocable right to buy the land with Cathay Metal, w/o
knowledge of the coop.
-the farmers then sold the lands to Cathay
-Laguna West Coop, nagpatatak ng adverse claim
-pinaka-cancel ng Cathay ang adverse claim
-substituted service ginamit pursuant to provisions in the Coop Code.
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>SC: no proper service of summons

-Coop Code provisions are not procedural rules that will govern court processes;
cannot take the place of the Rules on Summons - Rule 14, Sec. 11 ROC. Even
substantial compliance is not allowed.
>Mason vs Columbus Bus – Default & Application of Rule 14 Sec 11
- Columbus Bus was sued by the lessor
- Summons was served upon the clerk of the Columbus bus; kept it to herself
- Columbus Bus was declared in default – was only entitled to notices and cannot
participate in the proceedings
- all notices she also kept it
- a default judgement was rendered by the court
- Columbus Bus filed Rule 65 to CA
- Columbus contention: service of summons is not proper R14 S11
- Summons was improperly served and the case proceeded = SC said proceedings after
the improper service of summons is considered NULL & VOID.
- SC wants remand of records to trial court for proper service of summons
Foreign Rule 14, Sec. 12 –

A. Registered, transacting business in the Phils
1) resident agent
2) govt official designated by law
3) any of its officers or agents in the phils
B. Not registered in the Phils / has no resident agent – w/ leave of court
1) Personal service w/assistance of DFA
2) By publication in the country where defendant may be found, AND serving a copy
by registered mail
3) By facsimile or electronic that could generate proof of service
4) By other means as the court may direct
RCBC vs High
> case involving escheat of dormant bank account
> the banks should be impleaded  summons should be served based on Act 3936 to the Pres, Cashier or
Managing Officer of the defendant bank  coupled w/publication in a NGC.
> depositors are asking why they were not served with copy  because not a jurisdictional requirement 
publication is constructive notice
Sec 14 Sec 15 Sec. 16
1. if the defendant is unknown 1. the defendant is not a 1. the defendant is

OR whereabout not known resident OR not found temporarily absent
2. any action (in personam, in 2. action in rem OR quasi in 2. action
rem, quasi in rem) rem ONLY
3. summons is served by:
3. can be made by publication 3. summons can be served: a. Personal outside
a) Personal outside b. Substituted service
b) Publication + RM c. Publication + RM
c) Other modes d. Other modes
De Pedro vs Romasan Devt

The preferred service of summons is personal service whether action in personam or action in rem.
The Return provides:

Aurora De Pedro unserved for the reason that according to the messenger of the post office of Pasig
there is no person in the said address.
> failure to state the facts and circumstances that rendered service of summons impossible = no
substituted service or service by publication can be valid.
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National Petroleum Gas vs RCBC (2015)

The filing of motion to dismiss with special appearance is considered submitting to the jurisdiction of the
court.
SC: You can only claim Sec 20 of Rule 14 if you did not claim other reliefs. Sec 20 ONLY applies for the
grounds on a motion to dismiss. But if you sought other relief like to quash a motion, to set aside a
writ of attachment  you have deemed submitted to the jurisdiction of the court.
Romulo vs Peralta – Proof of registered mail

-registry receipt
-affidavit of the person mailing
-return card (should be filed in court)
> the affidavit should be prepared by the person actually mailing, and not by someone ordering to mail
the said summons
Proof of Publication
> In a default situation – recovery of sum of money – whereabouts unknown
- publication was used to serve summon
- there motion to declare in default  denied because the plaintiff who caused the publication did not
comply with Sec 19 Rule 14 re affidavit of the printer
Is there a need to serve summons after amendment of the complaint had been filed? – the
amended complaint supersedes the complaint that it amended – original summons does not become
invalid. Another summons is not required if jurisdictions of the persons of the defendants had already
been acquired.
Alias Summons – first summons is (1) lost; or (2) returned unserved.
Do you need an alias writ of execution? NO, because writ life is 5 years.
Do you need an alias warrant of arrest? NO need, it is effective until it is served. It does not expire or lifted
by the court. How about search warrant? Expires in 10 days only.
Rule 15 – MOTIONS
Remember:  likewise apply in criminal cases
1) Notice of hearing
2) The 3-day notice rule
3) The 10-day rule
4) Motion day
> motion is not a pleading – it does not lay a claim or a defense, but there are facts that supports a
motion 3-day Notice Rule
Cabrera vs Ng (2014)  3-day Notice Rule
 Sps Cabrera issued check as payment for P3M loan to Mr. Ng – the check bounced
 Mr Ng sued the sps Cabrera; Sps claim they already paid to the son Richard Ng; RTC ordered sps
Cabrera to pay; Motion for recon was not heard on the date that it should been heard – judge had
just assumed office – then it was set, then re-scheduled, then re-scheduled
 Whether it complied w the 3-day notice rule – 3 days before hearing date
 Hearing was set Aug 17 but Mr Ng received his copy Aug 21 na – therefore did not comply w/the
3day notice rule.
 Mr Ng contention: This means the hearing is pro-forma --- mere scrap of paper  will not
interrupt the running of reglamentary period  judgement is then final & executory.
 SC: The hearing has been reset for 3x, Mr Ng appeared so he knows.
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Notice of Hearing
You want to call the adverse party on the witness stand?
Do you need to serve written interrogatories? YES under Rule 25, Sec. 6 (2016 Bar)
Motion to Subpoena w/o a notice of hearing – can the court take action on that motion?
 SC: pro forma hearing, producing no legal effect
 Kahit may notice of hearing ka wala kang copy furnished – pro forma!
 Lahat ba ng motion kailangan ng notice of hearing? No. only for litigious motion.
 Example of non-litiguous  motion for extention; motion of postponement; ex parte motion to set
the case for pre-trial rule 18 sec 1;
10-Day Rule – setting of hearing no later than 10 days from its filing
Baselonia vs CA - MR  filed Jan 31 – date hearing set on Feb 15 > did not comly with 10 day rule
Case of Anama
 case is already final & executory; remanded to trial court for execution
 the winning party filed motion for execution w/o a notice of hearing
 the adversed party opposed and claimed that w/o notice of hearing it was a mere scrap of paper
 SC said notice of hearing is not necessary because that is already an execution as a matter of right
NEYPES RULE – Fresh Period Rule

> when you file an MR on a decision it interrupts the running of the reglamentary period
> If your MR is denied, you a fresh period of 15 days to file an appeal  NOT an extension of time to file
an MR = this rule applies to criminal cases
MOTION TO DISMISS
 Is the failure to raise efforts to a compromise in a complaint a jurisdictional defect?

 Art. 222 NCC; Art 151 FC requires that you explore possibility of compromise
Tamayo vs San Miguel
 Failure to timely object the absence of a condition precedent like a compromise cannot give an
authority for the judge to dismiss the case motu propio.
 There are only 4 grounds where the judge can dismiss a case motu propio
1) Lack of jurisdiction over subject matter
2) Litis pendencia
3) Res judicata
4) Statute of limitations
Heirs of Fabis vs Gonzales

Period to file a motion to dismiss? within the reglamentary period to file a responsive pleading
What is the remedy for the denial of a motion to dismiss?
Since it is an interlocutory order (not a final judgement) your options are as follows:
1) If it is denied, you can file your Answer
2) If it is denied and you do not agree with the denial, file a MR
3) If its tainted with grave abuse of discretion amount to excess of lack of jurisdiction you can file
a petition under Rule 65
Is forum shopping a ground for the motion to dismiss? YES! Not found in Rule 16, however, the
test of forum shopping is litis pendencia and res judicata.
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Brown Araneta vs Araneta

> the wife deprived the husband of the custody of the children
> father filed an action for custody – they did not participate
> she was declared in default; she thereafter entered her appearance BUT the judge did not allow her to
participate in the proceeding; she filed an action in another court for a temporary protection order
> now the husband is claiming that there was forum shopping because the relief was the same
> SC said: Yes there was forum shopping
Can a dismissed complaint be refiled? YES, generally.

XPN: f, h, i
1) Res judicata
2) Statute of limitations
3) Claim is extinguished
4) Unenforceable claim under the statute of frauds
What is the remedy of a losing party in the event that his case is dismissed?
> Ang remedy mo depende kung paano na-dismiss. What caused the dismissal of the case.
> If the case was dismissed on any of the ground enumerated in Rule 16 Sec 1, EXCEPT (f) (h) & (i) 
meaning the dismissal is without prejudice  remedy is RULE 65
> Rule 41  You do not file an appeal on a dismissal without prejudice!
How about if dismissal is (f) (h) & (i) --- your remedy is an APPEAL. Because it is a final disposition
of a case.
Aquino vs Quiazon (2015)
Distinction between failure to state a cause of action from lack of cause of action:
FAILURE TO STATE A CAUSE OF ACTION LACK OF CAUSE OF ACTION
- a ground for a motion to dismiss - not a ground for a motion to dismiss because it
requires presentation of evidence
- the complaint has no material allegation; there
was no breach or violation - you file a demurrer to evidence
- this could be a basis of preliminary hearing of - is not a basis for a preliminary hearing of the
affirmative defenses affirmative defenses
Boston Equity vs CA
> Boston filed a complaint for recovery of sum of money w prayer for issuance of attachment against Sps
Toledo; Toledo filed a leave of court to file an amended answer; the trial court deny the motion to
dismiss, as it is filed out of time
> Toledo filed his motion to dismiss  6 yrs 5 mos after she filed her amended answer
> SC: yes the motion was filed out of time
> dapat dito Demurrer of Evidence if there is a showing that there is insufficiency of evidence
PNB vs Gateway - Litis Pendencia

> there was a civil case for annulment of REM -- Gateway filed against PNB
> then another case annulment of the foreclosure sale

> PNB is alleging that there was splitting cause of action by 1st filing a case for the annulment of REM then
filing a case for annulment of foreclosure of mortgage
> CA said it is not splitting cause of action
> SC: There was litis pendencia, and is it truly splitting cause of action
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Splitting cause of action Litis pendentia
1. Parties are the same 1. The parties substantially similar

2. Causes of action are the same 2. Cause of action are similar
3. Reliefs are different 3. Reliefs are similar
> Litis pendencia – pending suits; is a ground for motion to dismiss
GROUNDS FOR MOTION TO DISMISS (R16)
1) Lack of juris over subject matter – RA 7691 or other laws that confer jurisdiction
2) Lack of juris over the person of the D – proper service of summons R14; voluntary appearance
3) Lack of legal capacity – natural person’s capacity to act; representative – SPA; Juridical – duly
organized and existing under the law
4) Res judicata
5) Litis pendentia
6) Venue is improperly laid
7) Claims states no cause of action
8) Statute of limitations – prescription (substantive law)
9) Payment, waiver, abandonment
10) Unenforceable under the statute of frauds – an agreement should be placed in writing
11) Failure to comply with a condition precedent – not jurisdictional matters
What is the test of sufficiency of cause of action?

GR: The test of sufficiency of COA rests on whether hypothetically admitting the facts alleged in the
complaint to be true, the court can render a valid judgement.
XPNS:
1) The falsity of the allegation is subject to judicial notice
2) Such allegations are legally impossible
3) The allegation refers to fact which are inadmissible in evidence
4) By the record in document, in the pleading, the allegations appear to be unfounded
5) There is evidence which has been presented in the court by stipulation of the parties
The case of Luem?

> An order denying a motion to dismiss is an interlocutory order, which neither terminates nor finally
disposes of the case. Neither can denial of motion to dismiss be subject of an appeal unless and until
final judgement is ordered by the court. In order to justify the grant of the extraordinary remedy of
certiorari the denial must have been tainted w/grave abuse of discretion.
> denial of a motion to dismiss is NOT appealable
> you can use Rule 65 only if there is grave abuse of discretion amounting to excess or lack of jurisdiction.
Can the court defer the ruling on the motion to dismiss? NO.
> Under the same rule, any resolution of the judge on a motion to dismiss should state the facts and the
laws upon which it is based.
Republic vs Carmel – the evidence presented during the hearing of the motion to dismiss shall form part
of the evidence of the case during trial.
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RULE 17 – DISMISSAL OF ACTIONS

1) The case can be dismissed at the instance of the defendant under Rule 16
2) The case can be dismissed at the instance of the plaintiff under Rule 17 Sec 1 & 2
3) The case can be dismissed at the instance of the defendant under Rule 17 Sec 3 or by the court
motu propio.
a) Failure to prosecute
b) Failure to present their evidence in chief
c) Failure to present evidence for a reasonable length of time
d) Failure to comply with an order of the court
e) Failure to comply with the rules
DEMURRER TO EVIDENCE R33

> filed at the instance of the defendant – ground: insufficiency of evidence
Ramon Ching vs Joseph Cheng (2014)
 Antonio Ching owned several businesses; P380M worth of properties; died unmarried; had 2 children
from 2 women; (1st) ramon ching – one child (2) w 2 siblings
 Ramon Ching suggested that they divide property on their own. Ramon will pay them P22.5M; but
ramon did not pay the other siblings;
 So they filed a case against Ramon Ching
 In the 1st case Powing Co filed a motion to dismiss on the ground of lack of jurisdiction over the
subject matter; RTC of Manila granted the motion to dismiss on the said ground.
 The case was refiled again by the Chengs and Santos
 Then Cheng and Santos, the plaintiffs, filed a motion to dismiss, praying that it be dismissed w/o
prejudice  court granted
 Ramon Ching filed a motion for recon  contention: the dismissal on the 2nd case should have been
w/prejudice because that was already in violation of the 2-dismissal rule.
 Issue: Does the 2-dismissal rule apply?
 SC: No.
TWO-DISMISSAL RULE
R17 S1  no Answer yet; the plaintiff dismisses; the dismissal is w/o prejudice
 If another case is filed involving the same cause; then it was dismiss again at the instance of the
plaintiff  the 2nd dismissal is w/prejudice
R17 S2  there is already an Answer; the plaintiff wants to dismiss; if the plaintiff dismisses  the
dismissal is w/o prejudice; now if you refile it – the 2nd one would be w/prejudice
Q  What happens to the counterclaim?
The Pinga Ruling  if the principal action has been dismissed, the counterclaim will have to stand on its
own merits
How will it proceed now?  it will proceed in the main action if the defendant manifests within a
period of 15 days from the time of the grant of the dismissal
If there is no such manifestation, does it mean that you are barred from claiming the counterclaim? 
No, you could still file a separate action and pay filing fees
 There was a complaint; No motion to dismiss; But there was an answer with affirmative defenses, and
then after hearing the affirmative defenses the court dismissed the case based on the grounds raised
in the affirmative defenses (dismissal here is w/o prejudice)  What happens to the counterclaim?
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 R16 S6  Can you run after the plaintiff based on your counterclaim? YES! In the same or a separate
action because the dismissal of the case above is w/o prejudice.
 No period required!
 No manifestation required!
Requisites for dismissal to be w/prejudice:
1) There was a previous case that was dismiss by a competent court;
2) Both cases were based on or include the same claim;
3) Notices for dismissal were filed by the plaintiff;
4) When the motion to dismiss filed by the plaintiff was consented to by the defendant on the ground
that the latter paid and satisfied all claims of the former.
Before an answer, the plaintiff wants to dismiss, what will he file? A notice for dismissal. Don’t file a
motion to dismiss because that is your right. Because there was yet an answer.
Once the answer has been filed  you file a motion, BUT that is left to the discretion of the court.
R17 S3
 It is the defendant OR the court motu propio which can dismiss the case for:
1) Failure to prosecute
2) Failure to present their evidence in chief
3) Failure to present evidence for a reasonable length of time
4) Failure to comply with an order of the court
5) Failure to comply with the rules
PRE-TRIAL
 In between filing of complaint and filing of an answer, many things could happen – we will discuss
 The law does not promote a motion to dismiss; that’s why there is a rule about filing an Answer
with affirmative defenses (using the grounds for motion to dismiss) instead of filing motion to
dismiss.
 Why are they promoting an Answer instead of MTD? Because when an Answer is filed, issues
are joined. And when issues are joined the court can proceed with the Pre-trial.
 If what is filed is MTD instead of Answer, di ka aabot sa pre-trial 
 MTD delays the process
 If there is a pre-trial they could refer it to Mediation

PROCESS
Complaint - After the filing -pre-trial brief must be PRE-TRIAL PRE-TRIAL proper
of the last filed 3 days before; -scheduled: July 19, 2017 - appearance is
pleading or a IF NOT filed is important
reply, it is the equivalent to non- -on this day the court will
duty of the appearance refer the case to -plaintiff present &
plaintiff to file Mediation (30-60 D) defendant is absent
ex parte motion -few days before pre- as in default
trial, there should be -if M is unsuccessful -> it plaintiff will be
- w/in 5 days prelim conference will go back to the judge allowed to present
b4 a clerk of court for for JDR evid ex parte
admissions,
stipulations, -JDR, the judge here is an -plaintiff is absent,
preliminary markings, independent conciliator the case will be
and identification of dismissed
witnesses -if JDR unsuccessful then
Answer proceed to pre-trial
LBL Industries expropriation case:

-where LBL got tired of the delay in the process, so they wanted it be dismissed.
-can a case be dismissed for failure to set the case for pre-trial?
-2004 guidelines it is the duty of the clerk of court to issue pre-trial notice and send to the counsel of record.
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Tolentino vs Toledo
 A case involving a parcel of land; Laurel claims ownership of the land; Tolentino said that ok if that
is yours we have to talk about the improvements I’ve introduced in the said land; Laurel said yes;
However, Tolentino died before they finalize their talk and the land were never surrendered to the
Laurels.
 Hence, the Laurels filed a case against Tolentinos to recover property and demand payment of
unearned income, atty’s fees and cost of suit.
 Tolentino claims that the subject property is owned by the Republic and that he is only using it
because of a fishpond agreement entered with the Dept of Agri
 Aug 27, 1996: Tolentino were declared in default for failure to appear at the pre trial conference.
(there is no default in pre-trial, only AS IN DEFAULT) However, the court consider to give Tolentino
another chance after MR.
 Despite repeated re-setting of the pre-trial Tolentino still does not appear; hence, the court issued
an order allowing Laurel to present evidence ex parte; then the court rendered a judgement in
favor of the Laurels requiring Tolentinos to vacate premises
 Tolentino claim that he was denied his day in court.  SC said NO!
What is the remedy if the plaintiff is non-suited and the case is dismissed?
 Non-suited = did not appear during pre-trial

 The dismissal is w/prejudice
 Remedy: APPEAL, because it is a final disposition
What is the remedy of the defendant in case the consequence of his absence is imposed by the
court?
 As when the defendant was not present during the pre-trial
 Hence, the plaintiff will be allowed to present ex parte
 REMEDY: to file a Motion for Recon on the ground of FAME (not in the rule but jurisprudence)
WHAT HAPPENS DURING PRE-TRIAL
 The court will ask if:

 You want to compromise
 You want to file amendments on the pleadings
 You want to file a motion on the pleadings, or summary judgements
 there’s a need for commissioners
 there are ADMISSIONS (judicial admissions ito!) and STIPULATIONS
 R129 S4  requires no evidence;
 An admission made during pre-trial is not an admission but a stipulation

o if admitted by the other party that amounts to an admission  a judicial admission
 why is judicial admission so important  because if there is judicial admission there is no need of
introduction of evidence  it cut shorts the proceedings
 though the provision of the law allows an offer to stipulate, you are not obliged to accept the offer
to stipulate  (this works in the same ways in criminal cases)
 Admissions become part of the record; it is very hard to disowned it UNLESS  (R129 S4) there is
palpable mistake or there was no intention to make such admissions
 A judicial admission made in one case ONLY affects that particular case
 PRELIMINARY MARKING – all documents that you are to present during trial should be
preliminarily marked  this means on the day of the pre-trial dala mo na lahat yun
 2004 Guidelines Of Pre-Trial And Motion Of Discovery - if a party is not ready to mark
during pre-trial he can no longer present evidence during trial except for good cause
NASAM 2017 12
 If it is preliminarily marked, does it mean it is already your evidence?  NO. The mere fact of
preliminarily marking does not make that your evidence; during trial the witness shall identify
it; the preliminary marking skips the marking of the documents during trial and saves a lot of
time.
  R132 S34 – no evidence will be considered by the court unless it is formally offered.
 That is why the rule is you can only file a Demurrer to Evidence once the plaintiff has
completed the presentation of evidence.
 A formal offer of evidence could be orally made or in writing; under the JAR today it should be
oral;
 IDENTIFICATION OF WITNESSES –
 you will have to names the witnesses;
 the substance of their testimony;
 the period of time that they will testify
 TRIAL DATES –
 After pre-trial the court will issue a Pre-trial Order – which will dictate the conduct of the trial,
that’s why one should not proceed to trial without Pre-trial Order. All the matters discussed in the
pre-trial will be contained in the Pre-trial Order.
INTERVENTION (R19)
Ongco vs Dalisay
 Dalisay applied for the registration of a land; there being no oppositor aside from the republic thus
the court issued a general order of default
 Dalisay has clearly shown his registrable right over the property; court ordered the decree of
registration to be issued by LRA; the Republic appeal
 While pending on appeal, Ongco filed a Motion for Intervention in the CA; He filed an Answer in
Intervention; seeking the dismissal of the application for the registration of Dalisay on the ground that
said property is not free adverse claim;
 Dalisay contention: (1) Ongco doesn’t have any legal interest over the property subject of the
proceeding; and (2) that such intervention will unduly delay the registration proceedings; and (3)
Ongco will be fully protected in a separate proceeding.
 Can Ongco properly intervene? Who can intervene?
 SC: Intervention is not a matter of right, but is left to the discretion of the court.
 The court must consider the following:

1) the legal interest of the intervenor over the subject matter
2) if such intervention will unduly delay the proceedings to the disadvantage of the original parties;
3) if the intervenor could be fully protected in a separate proceeding. NOTE: If the answer to all is
YES then he could intervene!
 Another thing is the proper timing; anong level ba nag intervene is Ongco? Sa CA! tamaba yun? NO
 What is the proper timing? R19 S2 At any time before rendition of judgement in the trial court.
 There are certain exemptions whereby the court entertained interventions even after the
court rendered judgement:
1) If the intervenor is an indispensable party

2)
 Here Ongco is not an indispensable party.
NASAM 2017 13
What if the principal action is dismissed, what happens to the intervention?

 The intervention is likewise dismissed, because it is only ancillary
 It cannot stand independently
1) Complainant in Intervention – joining in the complainant/plaintiff
2) Defendant in Intervention – joining in the defendant
What if the intervenor is the plaintiff, is legal interest sufficient?  he should have his own cause
of action;
Can a common-law wife intervene in an action between spouses involving the latter’s alleged
discovered properties?
 There was a nullity of marriage filed the wife against the husband
 Wife said there no common properties; hence, marriage was nullified without resolution on
properties
 A few months after the resolution of the case, the wife learned that the husband have properties
 So, she informed the court that there are newly discovered properties that should be divided
between them (H & W); The husband opposed  upon investigation it was revealed that the
properties were in the name of the husband and another woman; Sabi ni husband hindi kanya ang
properties BUT the other woman.
 Since it is believed that the claim cannot stand on its own, the common law wife intervened in the
proceeding;
 The court did not allow – she cannot intervene
R21 – SUBPOENA (applies to ALL proceedings; is a compulsory process)

2 KINDS OF SUBPOENA
1) Subpoena duces tecum – to bring to court the documents
2) Subpoena ad testificandum – to appear and testify

How to quash a subpoena
1) Subpoena duces tecum –
2) Subpoena ad testificandum –
 You only quash if the subpoena has already been issued; you cannot quash if what was filed
was only a motion for issuance of a subpoena  here you file an opposition.
 When you receive notice to appear (subpoena testificandum)  if there are grounds
to quash it you file a motion to quash:
 You are not bound thereby OR disqualified (ex: testify against my father)
 The witness fees were not tendered  There was no tender of kilometrage
 Subpoena is served in the same manner as that of summons – personal, then substituted
 WRIT OF AMPARO – the writ if issued by the court will be served in the same manner as
summons
 Subpoena compared to production order in writ of amparo – w/c is an Interim Relief

 Subpoena duces tecum is akin to a production order for a writ of amparo
NASAM 2017 14
Lee vs CA – involves a witness who is to be called to the witness stand
 Sps Lee, Chinese nationals, entered into the Phils brought a woman as a housemaid in 1948;
 in 1989 the man died and the children of the housemaid were also claiming to be his children
 these children of the housemaid carried in their birth cert that the first wife as the mother
 there was an action for special proceeding for the deletion of the name QUE and replaced by the
name of real mother TIU
 they filed an ex parte request for the issuance of subpoena ad testificandum to compel the
housemaid to testify in court  the counsel of Tiu objected and filed a Motion to Quash as it is
violative of the provisions of ROC.
 Can she be required to testify?  SC: Yes.
 A subpoena can only be issued if there is a pending case or investigation
 The House of Rep & Senate can issue subpoena
 The Office of the Prosecutor can issue a subpoena
 The Office of the Ombudsman can issue a subpoena
 The NBI can issue a subpoena

SUBPOENA DUCES TECUM
CHAN vs CHAN – nullity of marriage case
 Gusto pakuha ng babae yung medical records ng lalaki
 Subpoena duces tecum is applied for
 The court would not allow
 Wife invoked Rule 132 Sec 17 – Court says this cannot be invoked; as yu can only use this
provision when you are on trial
ROCO vs CONTRERAS
Two very important requirements if you are to apply for a subpoena duces tecum -
1) It will have to pass the rule on relevancy; the documents will have to be prima facie relevant;
2) The documents/books should be reasonably described
How to quash a subpoena duces tecum –
1) That it is unreasonable, oppressive and irrelevant
2) R21 S3 – If it is not described with particularity; hindi pwede general
3) Witness fees and kilometrage not complied with
DEPSOITIONS (R23-29)
As a practical matter, when can you avail of a deposition?
 If a witness is MORE than 100 km from the place where the hearing is to be conducted, a convenient
remedy is take his deposition *read, remember and understand Rule 23!!
 Can the deposition take the place of the testimony in court? NO. If the witness is available, he
should be presented in court.
 Ano ba pwede i-deposition? Any matter, for as long as it is relevant and NOT privileged. (R23 S2)
 Paano mag-a-apply ng deposition? Katulad ng amendment, dismissal of the plaintiff. The reference
point is may Answer na ba?
 Before an Answer – with leave of court; by motion
 Once there is already an answer – you will file Notice to take deposition
NASAM 2017 15
 Rule 25 ganyan din!

 Rosete vs Lim  answer ex abudande ad cautelam  this is filed in a situation like this:
– You filed a motion to dismiss  was denied
– You filed an MR  it was denied
– For that reason, the reglamentary period starts to run; but you would want to go up on a Rule
65, questioning the denial of the motion to dismiss kasi kumbinsido kang mali itong judge na’to;
but your peiod continuous to run;
– You have to file an answer; but filing an answer you might be giving up your right to file a Rule
65, but you don’t want to give it up; but you don’t want to be in default;
– Here you will have to file an answer ex abudande ad cautelam – a causionary answer
The uses of the deposition:
1) To impeach the testimony of deponent – R132, S11 & 13 of prior inconsistent testimony/evid
2) For any purpose by the adverse party – this can even be use to the officers of a juridical entity
Can you call the adverse party witness on the witness stand? YES. R132 S12 – BUT you have to give
him Written Interrogatories first.
Written Interrogatories Rule 23 Written Interrogatories Rule 25
- you prepare set of questions; you serve it to the other - are just list of questions; ipadadala lang
party;
- the other party prepares his cross interrogatories w/in a
period of 10 days (w/o an answer); - then he serves the
applicant with the cross interrogatories
- then the applicant prepare a redirect interrogatories w/in
5 days; then send a copy to the other party again
- he will have to prepare his recross interrogatories w/in a
period of 3 days.
3) If the person/witness is sick or infirmed or imprisoned

4) If the person/witness is more than 100 km from the place where the hearing is being conducted
5) When his appearance cannot be compelled by a subpoena
6) Other analogous circumstances
 The same uses as in R25.
BEFORE WHOM A DEPOSITION IS TAKEN

A. In the Phils
1) Any judge
2) A notary public
3) Any person who is authorized to administer oath and stipulated upon by the parties
B. In a foreign state
1) Consular Office – consul gen, consul, vice consul, consular agent
2) Person may be appointed by commission OR under letters rogatory
 What is a Letters Rogatory – a communication from one judicial authority to another
 What is a commission – it is an appointment by the judge
3) Any person who is authorized to administer oath and stipulated upon by the parties
NASAM 2017 16
Dulay vs Dulay - Letters Rogatory & Commission

 Dulay have 2 siblings; one in America, who petitioned one sibling and the nephew to America;
 There the brother in the US entrusted his accounts (money) with the petitioned brother & nephew;
 Such brother spent all his money (nilustay) more or less P12M; went back to Pinas;
 The brother in the US filed a case for collection of money w/application for attachment;
 The lawyer of the US-based brother applied for the taking of deposition in a foreign country of his client;
 The judge in the Phils issued a letters rogatory to the court in Boston; The court of Boston ignored the
letters rogatory;
 The lawyer had to take depositions before a notary public in New York; then was sent here in the Phils; the
Phil court refuse to accept  because accordingly there’s no way by which it could be authenticated;
 So, they required that it be returned to the US and be authenticated by the consular office there of the
Phils; so, it was authenticated and was returned to the Phils;
 Now, the brother in Pinas & the nephew, is contesting such  they claim the deposition is invalid.
 Was the deposition valid, considering that it was NOT taken before a consular office and there was
technically no letters rogatory?
 The SC admitted the deposition, even if there was no letters rogatory, because it was later authenticated
by the consular office.
The modes of discovery are cumulative.
Can an officer be disqualified? Yes, for the following reasons:

1) The officer is financially interested;
2) The officer is related to any of the parties w/in the 6th degree of consanguinity or affinity;
3) The officer is an employee or counsel of any of the parties;
4) The officer is related to the lawyer w/in the same degree of affinity or consanguinity.
How to oppose a deposition / Limitations / Grounds to oppose

1) Irrelevant and privileged (S2)
2) When it can be shown that the examination is being conducted in bad faith or in such a
manner as to annoy, embarrass or oppress the person subject of the inquiry. (S16 &18)
CONDUCT OF THE TAKING OF DEPOSITION (S 17, 19, 20, 21)
 Whether you’re a judge or a notary public, you have to follow the same procedure and follow the
procedure in the provisions of the ROC to the letter;
 The taking and conduct of the deposition is under the control and direction of the designated deposition
officer (judge or notary public), who shall appoint a stenographer or clerk to record the entire
proceedings;
 Thereafter the draft of the deposition will be given to the deponent; and then the deponent will review
and if he agrees to what is written will affix his signature;  this signing can be waived if the parties
consented;
 If the deponent refused to sign, the reason for the refusal should be indicated;
 There should be a certification at the bottom of the deposition --- as to the voluntariness of the taking of
the deposition;
 The deposition officer shall put it inside a sealed envelope; and at the dorsal portion of the said
envelope the name of the deponent shall be indicated; then this will be submitted to the court;
 If this procedure is not followed  the deposition shall be suppressed (R23 S29 f)
AYALA LAND vs TAGLE - DEPOSITION TAKEN BEFORE A JUDGE
 The deposition was not signed
 the rules were relaxed all because the deposition was taken before a judge.
NASAM 2017 17
What is the difference between an ORAL DEPOSITION and a WRITTEN INTERROGATORY

DEPOSITION DE BENNE ESSE DEPOSITION PERPETUAM REI MEMORIAM
 Rule 23 - deposition pending action  Rule 24 - deposition before action

  Perpetuation of testimony
***Rule 24 superseded Rule 134!

Can deposition be taken of a child witness? Yes!
AM-004-07 (2000) Child Witness Examination Rule
Section 27. Videotaped deposition. -
(a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the
child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this
section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a).
(b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of
the child be taken and preserved by videotape.
(c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts
thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the
deposition. The other persons who may be permitted to be present at the proceeding are:
(1) The prosecutor;
(2) The defense counsel;
(3) The guardian ad litem;
(4) The accused, subject to sub-section (e);
(5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the
child;
(6) One or both of his support persons, the facilitator and interpreter, if any;
(7) The court stenographer; and
(8) Persons necessary to operate the videotape equipment.
(d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not
be violated during the deposition.
(e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the
court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the
accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25
of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of
the accused.
(f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes
shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the
record.
(g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into
consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors.
(h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b).
(i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is
unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into
evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating
the reasons therefor.
(j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the
ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly
discovered evidence.
ERRORS or IRREGULARITIES –
 Pwede ba mag object sa qualification nung deposition officer? YES. As soon as it becomes apparent, you
have to oppose, otherwise, it shall be considered as waived.
 Irregularities as to the form of written interrogatories  at the very moment it becomes apparent, you
have to raise it, otherwise, it is considered waived
NASAM 2017 18
 Irregularities in the procedure undertaken  you have to raise it at the very first time otherwise it
is waived and you exposed to a motion to suppressed deposition
 Remember: ALL OF THOSE IRREGULARITIES are WAIVABLE if not timely raised, except
competency and relevancy.
When can you apply for deposition? Can you still apply for deposition after pre-trial?
 YES. In Jonathan Land Oil vs Magundadatu  it was already execution stage; there was already a
final judgement but they allow the taking of the deposition.
 For as long as the witness is available, testimony in court is preferred.
Can deposition be taken in criminal cases? YES

GO vs PEOPLE
 Go, Ngo and Go were charged in MTC of Manila for Other Deceits; it was alleged that they conspire to
have Mr Ping of Haydan Co Ltd (Cambodian) to believe that they have chattels, and machinery, spare
parts, equipment and raw materials – amounting to P20M;
 Private prosecutor filed, in the MTC, a motion to take oral depositions of Mr. Ping who is in Cambodia,
alleging that he is being treated for lung infection in a hospital in Cambodia (ill health); the MTC
granted the motion; But the RTC declared that the order of MTC granting deposition is null and void;
 When it was elevated to the CA: > there was no grave abuse of discretion that can be imputed upon
the MTC for allowing the taking of the deposition;
 Whether Rule 23 are applicable to criminal cases.  HELD: No,
 Rule 119, Secs. 12, 13, 15:  CONDITIONAL EXAMINATION of WITNESSES  before the
trial proper the witnesses is not available; this is equivalent to deposition;
PROSECUTION ACCUSED
Grounds 1. About to depart without definite 1. Sick or infirmed
date of returning; 2. Is more than 100 km from the place where
2. Is sick or infirmed; hearing is being conducted
Where will it be 1. in the court where the action is 1. any judge;
conducted pending 2. any member of the bar;
3. any inferior court if directed by the superior
court
R24 - PERPETUATION OF TESTIMONY Depositions Before Action or Pending Appeal
DEPOSITION BEFORE ACTION
 Where you will file  in the place where the prospective adverse party resides
 Ultimate relief  an order allowing you to take deposition
DEPOSITION PENDING APPEAL
 Where to file  in the court that rendered the judgement
 What: include purpose
 You filed MTD, denied; you filed MR, denied; you filed petition for certiorari Rule 65, can you file
motion for deposition pending appeal? You cannot file a DEPOSITION PENDING APPEAL
because a Certiorari is not an APPEAL.  You may apply deposition under Rule 23 instead.
 Can you avail of DEPOSITION PENDING APPEAL if you have not served written interrogatories to the
other party? R25 S6  you should serve written interrogatories before deposition pending
appeal
REQUEST FOR ADMISSION
 Unlike R23, in R26 you can apply ONLY after issues are joined – that is when an Answer has been
filed
 What are the subject matter of a request for admission:

1) material and relevant facts
2) genuineness and due execution of the attached documents
NASAM 2017 19
 What is the consequence of failure to submit a request for submission?  means that you will
not be allowed to prove certain facts
Will the affidavit executed by Mayor Espinosa be considered under Sec. 13 of Rule 119 in defense of
his son? Answer: NO. You could only use this once the case is already filed in court. If no
information is filed in court, any affidavit executed in the office of the prosecutor / before the office
of the ombudsman is useless.  because it’s not subjected to cross examination.
Remember that the operative provision is Rule 130 Sec. 47; because a deposition taken in another
proceeding is by its very nature hearsay.  because the judge has no opportunity to examine the
witness. There is no opportunity for the other party to conduct cross examination.
RULE 115 Sec. 1(f)  Rights of the accused at the trial – to confront and cross examine the witness
against him at the trial. A testimony (not a deposition) taken in another judicial or administrative
proceeding involving the same parties and subject matter, can ONLY be used if the witness is dead
or unavailable to testify, provided there had been opportunity to cross examine the said witness.
In criminal proceeding a deposition taken under R130 S47 does not apply in R115 S1(f).
 Why do you serve request for admission to the other party to obtain admission of the genuineness and
due execution of the attached docs  so that you need not authenticate them in court anymore.
 Rule 132, Sec 19-33 Authentication & Proof of Documents. 
 2 kinds of document:
(1) PRIVATE - will have to be authenticated by someone who saw you write; and
(2) PUBLIC – no need to authenticate / SELF-AUTHENTICATING  certified true copy
 You have to answer or oppose w/in 15 days  failure to react = implied admission
 Matters w/c have been previously denied can no longer be subjects of a request for admission
 Matters of law and opinion cannot be a subject of a request for admission
 Under the 2004 guidelines of pre-trial and modes of discovery – the judge, after the issuance of the
summons, should issue an order requiring the parties to avail of Modes of Discovery.
 Let us say that a party die – but depositions were already taken  depositions will remain because the
fact of substitution will not affect the depositions previously taken.
RULE 27
Production of documents Entry into the premises
in Writ of Amparo Production Order Inspection Order (5 days effectivity)
R27 – Production of documents R21 - Subpoena Duces Tecum

– A mode of discovery – A means of compelling production of evid
– Limited to the parties of the action – Any person, party or not
– Could be applied before or during trial – Only during trial
– The order is issued only upon motion w/notice – May be issued ex parte
 What if you received a Notice to Produce?
 It may be a preliminary to a presentation of a secondary evidence;
R28 PHYSICAL & MENTAL EXAMINATION

1) There should be a pending action
2) If the mental or physical condition is in controversy
 What are the requisites to obtain an order for examination:

1) A motion must be filed for physical or mental examination
2) The motion must show good cause
3) The notice not only to the person to be examined but to all parties
4) The motion shall specify the time, the place, the manner, conditions and scope of the examination
NASAM 2017 20
 An order to submit to physical examination is an interlocutory order  hence, it is not appealable
 S4 – Waiver: the very moment the person examined requested for a copy of the examination results
is a WAIVER to his privilege  the doctor-patient privilege to his previous or subsequent mental
examination; meaning the other party can now request copies of my other examinations in the past
and even the subsequent;
R29 – REFUSAL TO COMPLY WITH MODES OF DISCOVERY
 Refusal to answer  under S3  before the court will implement the serious consequences of refusal to
answer, you have to secure from the court an order to compel to answer
 When is an Order to Compel an Answer availed of? Under what condition? 
1) If the party/deponent refuses to answer upon oral examination;
2) If a party/witness refuses to answer any interrogatories submitted under R23 or R25
 Where will you get the order  court of the place where the deposition is being taken
 When is a party or his counsel required to pay the amount of reasonable expenses? If there is a refusal
to answer and the party is compelled to secure an order to compel to answer; OR when it is later
established that the person insisting to answer has NO basis.
 Can a party refusing to answer be cited for contempt? YES
 Other consequences: you could apply for an order on the following conditions:
1) If a party fails to serve an answer to interrogatories (R25);

2) Fails to appear to an officer to take deposition;
 How about if the party refuses to obey an order  he could also suffer the consequences:
1) an order directing him to answer

2) an order requiring him to produce docs
3) an order to submit to physical and mental examination
 Under S3, they could also issue a warrant of arrest – except for refusal to submit for p/m examination
 On Rule 27  Just like in a subpoena, a motion for production for books, papers and documents
should also be established that it is relevant and with reasonable descritpion
R30 – TRIAL
 Read in relation to Rule 132, Sec. 1-18: Why:
1) Oath and affirmation
2) Recording of proceedings
3) Questions that you could ask a witness
4) Examination of the witness – direct, cross, redirect
5) Recall of a witness
6) Leading & misleading questions
7) How to impeach
8) Who is an adverse party witness / hostile witness
9) To refresh by reason of a memorandum
TRIAL = R30 + R132

1) All proceedings in court are recorded
 R132 S2 – proper way by stenographic notes

 R30 S7 - all statements of the judge are recorded
2) Order of presentation of evidence
 Who should present 1st – plaintiff; Who’s next – defendant; 3rd party P; 3rd party D;
 R30 has no provision on how witnesses will be examined; it is in R132
NASAM 2017 21
R132 S4. Order in the examination of an individual witness. —

a) Direct examination by the proponent - examination-in-chief of a witness by the party presenting him
b) Cross-examination by the opponent - as to many matters stated in the direct exam/connected therewith
c) Re-direct examination by the proponent - on matters not dealt with during the cross-examination
d) Re-cross-examination by the opponent - on matters stated in his re-direct examination
 Under the JAR – in all civil cases submission of JA is required in liue of direct examination
 On criminal proceedings  in RTC an accused is not compelled to submit JA.
 What if in RTC but only the civil aspect of the case  ayan pwede JA.
 Can you recall the witness after his termination?  YES, subject to the discretion of the court.
3) Postponement
 There are only 2 grounds for postponement
1. Sickness of the parties or the lawyers –

a. nature of sickness would render his absence excusable;
b. the attendance of the party or counsel is indispensable
2. Absence of evidence –
a. Material & relevant
b. Is necessary for the court to render a valid judgment
c. There should have been earnest efforts to look for it
 The reason should be NOT AVOIDABLE or one that COULD NOT HAVE BEEN FORSEEN
4) Agreed statement of facts – S6  the judge can render judgment when the parties agreed on all the
facts of the case and there’s no more issue to resolve
5) Can the power to hear the case be delegated by the judge? S9  Rule: the judge should hear the
case. BUT the judge could delegate the reception of evidence to the clerk of court, in the following
instance:
1. In default cases – if there are objections, the clerk of court cannot rule on such objections
2. In ex parte proceedings – Ex. Land registration proceeding, no oppositor
3. If the parties agree
 How about an adoption case? Can it be delegated to the clerk of court?  NO. SC has categorically
stated that adoption cases by reason of its public policy in nature cannot be delegated to the clerk of
court.
R132 S16 – present recollection revived, past recollection recorded

 To help you refresh; 2 kinds 
(1) when the document was shown and the witness recalled or remembered then the witness
testimony is the evidence;
(2) when documents was shown but witness could not recall but the document clearly contain his
signature and the same witness admits that it is his signature, the document is the evidence but
not his testimony because he could not recall.
RULE 31 CONSOLIDATION
 Involving a common question of law or fact
Consolidation – the cases are already pending
Joinder in causes of action – the cases are yet to be filed
 This is not a class suit – because in a class suit of public or general interest
 Q: all cases filed in RTC  where will it be consolidated?  in the court carrying the lowest number
(which means the first case filed)
 Can cases falling in different judicial stations be consolidated?  strictly speaking YES.
NASAM 2017 22
REPUBLIC vs SANDIGANBAYAN - The Types of Consolidation

 This is about forfeiture cases against the Marcoses; there was consolidation for purposes of trial; Quasi-
consolidation = not actual consolidation.
 Kung may actual consolidation yan, the cases loses heir separate identity; yung deposition sa kabila, because of
the merger, can be used in another case; eh iisa na lang yung kaso eh;
 But in this case cases were just consolidated for purposes of trial; hence, they cannot use the deposition, UNLESS
they pass the standard of R130 S47 – viz:
1. that it involves a deposition/testimony taken in another proceeding;

2. that the deponent or the witness is already dead or not available to testify;
3. it involves the same parties and subject matter;
4. there should have been an opportunity to cross examine.
*In criminal cases, there is ONLY consolidation for purposes of trial.

MEGA LAND vs CE CONSTRUCTION
 Is consolidation a remedy if there is an allegation of forum shopping? NO!
STANDARDS OF CONSOLIDATION CONCERNING COLLECTION / MONEY CLAIMS
 In filing 2 separate actions
SEPARATE TRIAL – that is left to the discretion of the court
METROBANK vs SANDOVAL (2013) – GR: trial in a single case

 A separate trial is left to the sound discretion of the court
 GR: is single trial because a single trial usually lessens delay and expense and inconvenience to the
parties and the court
 XPNS:
1)When there are extraordinary grounds for conducting a separate trial of the issues;
2)When a separate trial will avoid prejudice
3)When a separate trial will further convenience
4)When a separate trial will promote justice
5)When a separate trial will promote fair trial to all parties
SANTA MARIA & BOZA vs CLEREY ? (2016) - DEPOSITION

 R23 S1 makes no distinction as to whose deposition is to be taken; whether he be a resident or nonresident;
 S16 is a protective order – which could only be issued after notice and good cause
 Deposition of a person who is out of the Phils can be taken
R32 TRIAL BY COMMISSIONER

 Any matter could be referred to a commissioner if the parties agree;
 if the parties do not agree, only 3 grounds could be a subject of referral to a

commissioner:
1) When the records are voluminous;
2) If there are facts arising other than on pleadings; (meaning facts arising on motion
3) There are facts which are necessary for the court to render a judgment.
OTHER PROVISIONS OF LAW THAT RECOGNIZES APPOINTMENT OF A COMMISSIONER
 Rule 67 – on expropriation – is a mandatory provision on referral to commissioner.

In expropriation proceeding there are two stages:
1. Expropriation stage
2. Determination of just compensation – here there is a mandatory appointment of a commissioner
 Rule 69 – Judicial Partition – appointment of commissioner will ONLY take place if the parties CANNOT
agree; This action goes through pre-trial, hence, they were given the chance to have an agreement
NASAM 2017 23
CLERK OF COURT COMMISSIONER

– Cannot rule on an objection – If w/in the order of reference can rule
– Cannot determine admissibility of evid – If w/in the order of reference can determine
– Can issue a subpoena ad testificandun ex – If w/in the order of reference can issue a
parte; but only a court can issue a subpoena duces subpoena duces tecum and ad testificandum
tecum
PROCESS: - Kapareho lang ng Rule 67
 The commissioner could conduct conferences, and can adjourn from day to day
 It is the duty of the Commissioner to make a report to the judge; Once the clerk of court receives the
report, it is his duty to give copies to the parties;
 And the parties have 10 days to file/submit their comment;
 With or without their comment, the judge can now do any of the following:
1. Accept the report;
2. Reject
3. Recommit
4. Accept some portion, and reject the rest
R33 DEMURRER TO EVIDENCE

Demurrer of Evidence in Civil Cases Demurrer of Evidence in Criminal Cases
– WHEN: After the plaintiff has completed the – WHEN: After the prosecution has rested its case
presentation of his evidence
– Leave of court is NOT mandatory but it is highly
– No leave of court recommended
– If granted: case is dismissed; the plaintiff can opt to – If file w/o leave of court and it is denied: the accused
appeal waives his right to present evidence and the court can
already render a judgment
– If the case is appealed: RTC to CA  and CA
reversed  the defendant will not be allowed – If you file leave of court – granted; then you filed
present evidence Demurrer then it is denied: you can still present
evidence
– If denied: a denial is an interlocutory order; it’s not
appealable; defendant’s options are: proceed to trial – If demurer is denied: R119 S23  shall not be
OR present evidence reviewable by appeal or by certiorari before judgement
– If denied and disagrees: file an MR – If granted: amounts to an acquittal  double jeopardy

attached
– If denied and its tainted w/grave abuse of discretion
 R65 Certiorari
 Can the demurrer of evidence be filed in a guardianship proceeding?  Oropesa vs Oropesa (2012)
YES!
 In criminal procedure if the dismissal is prompted by the motion of the accused or upon motion of the
accused, double jeopardy will NOT ATTACHED.
The only XPNS:  (1) demurrer to evidence; (2) speedy trial; (3) speedy disposition
R34 - JUDGEMENT ON THE PLEADINGS / R35 – SUMMARY JUDGEMENTS

R34 - JUDGEMENT ON THE PLEADINGS R35 – SUMMARY JUDGEMENTS
– WHEN: After an answer or responsive pleadings had – If plaintiff is filing: after an answer
been filed, generally, by the plaintiff If defendant is filing: at anytime
– Always a complete disposition of the case – There is a partial summ judgment
– The court will only rely on the pleading and its – The court will rely not only on the pleading, but also
attachments on affidavits, documents, depositions
– The answer does not tender an issue or otherwise – There is no genuine issue as to material fact.
admits the material allegations of the complaint (in
short: inamin ang cause of action) UNLESS you raise
an affirmative defense.
NASAM 2017 24
Eland vs Garcia – Quieting of Title

 Petitioner argues that summary judgment is not proper in an action for quieting of title
 SC: Any action can be subject of summary judgment EXCEPT: (1) Annulment of Marriage; (2) Declaration of
Nullity of Marriage; (3) Legal Separation.
 However, in this case the grant of summary judgment was not proper as summary judgment is permitted only if
there is no genuine issue as to a material fact and a moving party is entitled to a judgment as a matter of law.
R36 JUDGMENT
 A final judgment is different from an interlocutory order;
 A final judgment is a final disposition of the case, and may be subject of an appeal;
 An interlocutory order is not a final disposition of the case, the case should proceed until judgment;
UNLESS the interlocutory order is tainted with grave abuse of discretion
 A judgment if not timely appealed or subjected to a timely motion for reconsideration will attain
finality;
 Once it attained finality the court can issue an entry of judgement;
 The entry of judgement will tell you that the case is ready for execution;
 The dispositive portion is the portion that is enforced  that will be recorded in Books of Entry of
Judgment  the Writ of Execution will contain the dispositive portion
 Once the judgment attains finality it is immutable and unalterable, UNLESS it is: 1) a clerical error;
2) a null & void judgment;
3) a nunc pro tunc judgment (a judgment that does not speak the truth)
 Judgment Pro Hac Vice – for that particular purpose only  it will not have a doctrinal effect Ex:
yung kay Ampatuan request to have live streaming hearing which the SC allowed  this is not
allowed by our laws. So, the SC said it is judgment pro hac vice.
 A void judgment/order has no legal effect; it is non-existent; it cannot be the source of any right
or any obligation; all acts done pursuant to it and all claims emanating from it have no legal effect;
hence, it cannot become final; any writ of execution based on it is void;
 Compromise judgment – a judgment so it has a reglamentary period but none of the parties will
appeal; then reglamentary period will lapse
Gadrinav vs Salamanca (June 11, 2014)
– In an action for partition, there was an agreement submitted to the court for approval; it was approved by
the court; but one of the parties did not follow the compromised agreement; he filed a separate action; is
that correct?  NO. The remedy is file a motion for execution.
 How about if the parties, after they have settled amicably, did not submit the compromise agreement
to the court, what will happen to the case?  it will be dismissed
– How about if this compromise agreement was breached?  the remedy is to file a new case, its
not an execution because the agreement was not approved by the court.
R37 & R38
NASAM 2017 25
Tadeja vs People – Motion for New Trial for newly discovered evidence
 Newly discovered evidence:
1) It is discovered after trial;
2) Could not have been produced at the time of the trial even w/the exercise of reasonable diligence;
3) Is material and not merely cumulative, corroborative or impeaching
4) It is of such weight that it could probably change the judgment if admitted;
 The most important requisite among the four is the #2 – the evidence could not have been produced at
the time of the trial even with the exercise of reasonable diligence;
 The confession of Plaridel does not meet this requisite;

There are 2 kinds of Petition for Relief From Judgment (PRFJ):
1) Petition for relief from judgment or proceeding – is only available of the remedies of MR,
MNT and Appeal is not available without fault on the part of the petitioner
2) Petition for relief from denial of appeal – is also grounded on FAME; you can only avail of this
remedy if you were prevented from filing an appeal
Alaban vs CA – This is a case wherein even when he was not a party but by reason of the nature of the case
being an action in rem, the court deemed them a party of the case.
 Involves a distribution of the state of the deceased person; an heir claimed that his the sole heir; the
court believed him; the entire estate was awarded to him;
 After 2 months after the rendition of judgement; and the judgment became final and executory nalaman
ng ibang heirs; so, the heirs immediately filed a motion to set aside the judgment; trial court denied;
then the judgment became final and executory;
 The rest of the heirs filed a Petition for Annulment of Judgment in the CA from the RTC;
 SC: it should have been a Petition for Relief from Judgment; but they are not parties to the case; but the
SC said it was an action in rem; and by reason of the publication the rest of the heirs are deemed as
parties;
 And besides the period for the PFRJ should be within 6 months from entry and 60 days from knowledge;
***Purcon vs MRS Phils (WHERE DO YOU FILE A PETITION FOR RELIEF FROM JUDGMENT)
 A petition for relief from judgment for a decision of the RTC is filed with the RTC  A petition for relief
from judgment for a decision of the MTC is filed with the MTC
 Can you file a PRFJ from a decision of CA? NO. How about in SC? NO.
 There is no provision in the Rules of Court making the PRFJ in the CA or SC;
 The procedure for the CA from Rule 44-55, with the exception of 45 which pertains with SC, identifies the
remedies available before CA such as Annulment of Judgment or Final Order, MR, MNT; nowhere is a
PRFJ under R38 mentioned.
R47 ANNULMENT OF JUDGMENT
 Can you file a petition for annulment of judgment of a decision of the CA? R56 S3 There is no annulment
of judgment of the CA.
 Can you file a petition for annulment of judgment from a criminal case? NO. Only civil actions. S1.
PINAUSUKAN SEAFOOD vs FAREAST BANK

 A petition for annulment of judgment is a remedy in equity and it is only available when the other remedies
are no longer available – such as  MNT, PRFJ and Appeal; and only the judgment or final resolution sought
to be annulled was rendered by a court lacking jurisdiction or extrinsic fraud.
 R47 S1  MNT, PRFJ and Appeal are no longer available through NO FAULT of the petitioner;
NASAM 2017 26
 If the ground relied upon is Lack of Jurisdiction, the entire proceedings are set aside without prejudice to the
original action being refiled in the proper court;
 If the judgment or final order or resolution is set aside on extrinsic fraud, the CA may, on motion, order the
trial court to try the case as if a timely new trial was granted.
 The action if based on extrinsic fraud may be filed for the period of 4 years from the day of discovery
 If based on lack of jurisdiction must be brought before it is barred by laches or estoppel;
IMPORTANT ALLEGATIONS FOR ANNULMENT OF JUDGMENT

1) While it is the last remedy, it is NOT an alternative remedy to the ordinary remedy of MNT, PRFJ or appeal;
2) The petition must aver that the petitioner failed to avail of the other remedies WITHOUT FAULT on his part;
but this requirement is not imposed when the ground is lack of jurisdiction;
***The case of Gloria Macapagal Arroyo in connection with Demurrer to Evidence
– The Demurrer to Evidence was filed before the Sandiganbayan; that is special BUT worth taking note;
– In that instance the SC reversed the denial of the Demurrer to Evidence;
– However, by express provision of law  you cannot file a petition for certiorari;
– If the facts are similar to the case of PGMA, you can answer  YES, a petition for certiorari could be
filed; BUT if it does not present facts similar to PGMA case then I would strongly suggest that you just
apply the provision of the law. Because the provision of the law is clear on this point.
 Grounds for annulment of judgment
1) Lack of jurisdiction – substantive matter
2) Extrinsic fraud – procedural matter
3) Lack of absence of due process  this is not in the provision of law; however, it is applied by
the
SC when they see that there is total deprivation of due process
R39: EXECUTION
S 01-14 Gen Provisions
S 15-34 Sale
S 35-43 Remedies available for the satisfaction of the judgement
S 44-45 Satisfaction of judgment (the essence of execution)
S 47-48 Effect of judgment
 Is an entry of judgment enough for you to execute the judgment? NO! You will have to file a Motion for
Execution.
 In our jurisdiction, even if the judgment is executory, the court cannot motu propio issue a Writ of
Execution;
 When is execution a matter of right and discretionary execution (execution pending appeal)?
As a matter of right
Illustrations:
1) RTC rendered a judgment; not appealed; became final & executory; you will file a motion for
execution in the court that rendered the orig judgment.  no need to attach a copy of the
judgment; the Writ of execution is issued by the RTC, as the court of origin
2) RTC rendered judgment  appealed to CA  then to SC, wc rendered final and executory
judgment;  you will file the motion for execution at the court that rendered the original
judgment;  here you need to attach the certified true copy of the judgment that has attained
finality; the Writ of Execution is issued by the RTC, the court of origin.
3) What if the motion for execution is filed in the SC?  filing of motion for execution before the
appellate is allowed for JUST and GOOD CAUSES;  here the RTC is issued by RTC, the court of
origin.
NASAM 2017 27
If you were the judge, will you act on the motion for execution of judgment? No, because the
dispositive portion of decisions of appellate courts are usually REMAND, AFFIRM, REVERSE, MODIFY 
how can you execute that? It is prudent for the trial court to wait until the records are returned to him,
because only then he will know how it is affirmed, how it is modified;
FOR THE SAKE OF THE BAR:

 If it is just one court  it becomes final and executory  you file motion for execution w/o having to
attach the copy of the judgment;
 If the case has been appealed  you file a motion for execution in the court of origin and attach a
certified true copy of the judgment.
Discretionary Execution
 You have to have good reasons embodied in an order of the court; You have to file a motion for
execution raising your good reasons
 You don’t need a bond to move for discretionary execution;
 You need a bond to STAY DISCRETIONARY EXECUTION;
 If the court grants your motion for discretionary execution on the ground of good reasons, can you
question it if you were convinced that there were no good reasons? YES!  your remedy is a Rule 65;
but you need to do an MR first; it is NOT appealable, kasi nga final & executory na.
 Where will you file your discretionary execution? S2  illustration: RTC, the court of origin rendered
judgment  case appealed to CA  you can file your motion for discretionary execution with the RTC
for as long as it has yet transferred the record of the case to the appellate court  in such case RTC
continuous to have jurisdiction – this is called RESIDUAL JURISDICTION.
(S6 R39)*** Revival of judgment upon an independent action
 The effective life of a Writ of Execution is 5 years;
 Within a period of 5 years from entry of judgment  you could file a motion;
 Beyond 5 years from entry of judgment but not more than the prescriptive period of judgment which is
10 years  you can file an independent action for revival of judgment;
 If your independent action for revival of judgment is granted  it becomes final and executory  then
the 5-year period again continuous to run;
Topacio vs Banco Filipino – Writ of Possession in a foreclosure proceeding
 The above procedure does not apply to Special Proceedings
(S7 R39) - Death of a party after judgment is final and executory
 For example: The judgment obligee dies can execution take place?  Yes, oblige shall be replace by
the administrator or executor;
 If the judgment obligor dies and it involves a lien or interest over real property  execution will
proceed against the executor or administrator
 How about if it is a money judgment?  execution will take place against the estate
S9, S10, S11: how you will execute the judgment depending on the award
S9 – money award
 There are only 3 ways to satisfy money judgment:
 To pay the judgment obligee directly
 To the representative of the judgment obligee  if payment cannot be effected to the j obligee
 To the sheriff who will turn over the money to the clerk of court who will deposit the money
 The should be a demand to pay first  you cannot go on levy on personal and real property
until such time as there is a demand to pay
 The judgment obligor is given the choice on what property will be subject of a levy
NASAM 2017 28
 If he doesn’t make a choice  personal property will have to go first

 Then garnishment  2-step method: (1) notice of garnishment (2) Order of Release
 S10 – specific act
 If the obligor cannot perform, the court may order another person to do it
 Ex: Remove improvements  this is not self-executory  Order of Demolition should be applied
for; there should be special hearing for that purpose
 S11 – special judgment

 It requires that you attach a certified true copy of judgment
 Only the obligor can do it
 If you do not perform you could be held liable for contempt

Curata vs PPA
 Can there be execution pending appeal in expropriation cases?
 No, because funds of the government can only be disbursed upon an expropriation by law; you
cannot hamper the operation of the government because of the execution pending appeal.
 Discretionary execution of judgment does not apply to eminent domain proceedings.

Is there self-executory judgment? None in the ROC. But there is such in labor cases  when an
employer receives an order of reinstatement, he has to comply within a period of 10 days; The Labor
Arbiter issues a Writ of Execution only when the employer refuses to obey the order of reinstatement.
Juco vs Chungco
- The decision to be revived should be final and executory  you cannot revive a judgment that is still
subject of Motion for Recon
- SC held: The findings of the CA that, notwithstanding the pendency of the motion for recon, the decision
has become final and executory by reason of laches could not be sustained.
The proper venue for revival of judgment  Infante vs Aran Builders  venue is dictated by the
nature of the judgment to be revived
1) REAL ACTIONS - if it pertains to possession, interest or title to property  the revival will be in
the place where the property is located
2) PERSONAL ACTIONS - if it involves personal rights and obligations it is dictated by where the
parties reside
Exempt from execution
 Those properties which are exempt from execution cannot be attached
 Properties exempt from execution: Sec. 13
 Joseph vs Santos  If one claims that the property is exempt from execution, the court should do
earnest determination of the truth of the claim that the property is exempt from execution; failure
to do so, any order of the judge will be considered as null & void;
 The Armored Security  claims they are exempt from execution  exemption from execution
applies only to natural persons and not to juridical persons;
Sec. 14 – 30 days is not the life of the writ; the life of the writ is 5 years; 30 days is the interval of
reporting on the part of the sheriff
NASAM 2017 29
SALE
A. Notice (S15)
1) Notice to the public –
a) for perishable goods - posting in 3 public places;
b) personal properties - posting for at least 5 days;
c) real properties – w/in a period of 20 days in 3 public conspicuous places 2) Notice to the
obligor – all sales should have notice to obligor;
B. Cert of Sale
- for property capable of manual delivery and perishable goods  COS is not mandatory;
- for prop not capable of manual delivery  COS is mandatory; COS will be registered and only when such COS is
recorded when the redemption period starts to run
***personal properties cannot be redeemed.
C. 3rd Party Claim – Terceria (R39 S16)
 There’s a judgment obligee; nanalo sya; wants to make sure that the sheriff executes; 3 rd party claimant
appears and claim the prop; who serves an affidavit to the sheriff; the execution will be suspended in respect
to that specific property;
 The remedy of the judgment obligee is to post BOND in favor of the 3rd party claimant if he wants the
execution to continue;
 Judgment oblige can vindicate his right in the same action or in a separate action; BUT the 3rd party claimant
can only vindicate his right in a separate action, because he is not part of the said case;
 Watch out if the property is a community property  the other spouse should vindicate her right in the same
action
 The right of 3rd party claimant is rooted on his title or right to possession; the claimant must first establish his
right; upon summary hearing the court may release a property that was mistakenly levied;
ATTACHMENT  R57 S14 REPLEVIN  R60 S7-8
- in an action for recovery of money, the plaintiff can - a proceeding to recover personal property from the
request that the court issue a writ of attachment. person who has possession of it.
- it is a type of prejudgment process in which the court - a person who claims that he/she has title to the
orders the sheriff to seize or attach the property personal property and that another has wrongfully
described in the writ. taken it can file an action in replevin to recover the
property.
- The property is held in the sheriff's custody until a
judgment is rendered in the case. - the action is based on an unlawful detention of
personal property.
- purpose: to secure payment if the plaintiff obtains a
judgment against the defendant - the plaintiff can recover the personal property before
a judgment is rendered in the case if the plaintiff
- it is not an independent action but is ancillary to the
files a bond or cash deposit with the court to ensure
civil action for money.
that the plaintiff will return the property to the
- If the plaintiff wins the lawsuit, he/she can obtain the defendant if the plaintiff loses the case.
sale of the attached property in order to pay the
amount of the judgment.
D. Redemption
1) Period  REAL PROP = 1 year; not extendible; the moment the redemption obligor redeems there will be no
more redemption; it cannot perpetually be redeemed (S28)  during the redemption period the
possession should be with the obligor;
2) Redemptioneer 
3) Profit  profits belong to the one in possession;
4) Nature  cannot change the nature during the redemption period
E. Purchaser Remedies – S34 – will ONLY apply when after auction sale, the purchaser could not take
possession of the prop;
1) Recover the amount in the same action
2) Recover the amount in separate action
3) I could have the judgment revived in my name;
NASAM 2017 30
S 35-43: REMEDIES – FOR THOSE WHO CANNOT EXECUTE THE JUDGMENT

S35 – compel co-obligor of contribution or reimbursement
S36 – examination of judgment obligor when judgment unsatisfied
S37 - call on the witness stand the judgment obligor and examine him as to his prop
S38 - ask the court to subpoena the debtors of the judgment obligor
S39 - debtors of the judgment obligor can pay directly to the sheriff for the satisfaction of the judgment
S40 – payments on installment if the court is convinced after investigation
S41 – receivership  if you think the property would be damaged
S42 – if the judgment obligor has an interest, either as a mortgagor or a mortgagee, and the court discovers,
that property can be sold on public sale and the proceeds be applied to satisfy the judgment obligation
S43 – there are instances that those who holds title or possession of the property denies the interest of the
judgment obligor  the judgment oblige can request or apply from the court order for the sale of the
property for a period of 20 days;
S44-45: Satisfaction of judgment (the essence of execution)
1) If the writ of execution returns to the court  satisfied
2) A written acknowledgement by the judgment oblige or his counsel
3) A written endorsement by the judgment oblige on the face of the record of the case
S45  with or without admission; the judgment obligee claims that he not yet fully satisfied; but the court
is convinced that there was full satisfaction of judgment already  the court can order satisfaction even
without consent of the judgment oblige.
Sec 47-48: EFFECT OF JUDGMENT

S47 – EFFECT OF DOMESTIC JUDGMENT
A. The judgment or final order is conclusive as to:
1) Title
2) Relationship of parties
3) Status
4) Letters of admin
5) Probate of the will
B. Any judgment is presumptive in a:

1) Probate of the will; as to the death
2) Letters of administration
C. Conclusiveness of judgment or preclusion of issue

The interplay of res judicata and conclusiveness of judgment
 Imagine that I am the contractor of this building; the owner initially was not happy with my performance;
he wanted to rescind the contract; he filed an action for rescission; the court declared that the contract
should NOT be rescinded;  this is already res judicata on the matter of validity of contract.
 Later on several problems came up; windows, elevator, cr, etc…; the building owner filed a case against the
contractor;  in that case they cannot revisit the validity of the contract  they are precluded from doing
that; but the issues in connection with the problems that came up pwede pag usapan BUT not validity of
contracts;
 With regards to the first case, res judicata sya;
 Dun sa second case – the matter of validity of contract is a precluded issue in the 2 nd case.
Some jurisprudence says that res judicata is a total bar; but conclusiveness of judgment is only a bar on
that particular issue only;
NASAM 2017 31
R40 – APPEAL
ORDINARY PETITION FOR REVIEW PFRC (R45)
R40 R41 R42 R43 R45
R44
CA
RTC memorandum CA 15 days CA SC
15 days
extendible
for 15 days
RTC
RTC RTC CA
MTC QJA
CTA-En Sandig
NA  15 days MTC
NA  15 days *Extendible  30days
RA  30 days
– You file the Notice of Appeal to the court - Q of fact / of law  all attachment - is a mode of appeal
that rendered the judgment; NA is for a period must be cert true
of 15 days  non-extendible - attachments copy because the - a continuation of the
quasi-jud agency appellate process over
1. dup/orid/cert true the original case;
– If you file an MR  15 days (not extendible) is not a regular
copy of the
 if denied you have fresh period of 15 days court, hence, the
judgment - Seeks to review final
(Neypes Rule) CA has no way of judgments or final
2. verified petition verifying veracity orders;
– Record on Appeal  30 days  if the court
of documents
asks you to amend then the court could give 3. cert of nonforum - Raises only questions of
you a longer period; it contains all the shopping  the decision of law;
pleadings and all the orders issued by the NLRC after lapse
court in a consequential manner; 4. pertinent pleadings - Filed w/in 15 days from
of 10 days
5. copy of petition becomes notice of judgment or
– Appellee’s Memorandum final & executory, final order appealed
should be served
upon adverse party therefore, from, or of the denial of
– Appellant’s Memorandum
and to the court remedy is R65, petitioner’s MR or new
– Appellee’s Brief – 15 days that rendered not R43 trial;
judgment - Extension of 30 days
– Appellant’s Brief – 15 days  decision of HLURB
6. affidavit of service is appealed to the for justifiable reasons
(R$#) Ofc of the Pres
- Does not require a prior
7. R13 S11 – if your MR;
service is other - Stays the judgment
than personal, you  from PARAD/
have to explain RARAD - Parties are the original
to DARAB parties with the
8. Sec Cert if juridical appealing party as the
entity to CA (R43) petitioner and the
-- if one is absent adverse party as the
 petition will be respondent without
 from CTA impleading the lower
denied
court or its judge;
CTA enbanc
- SC may deny the
SC on R45 decision motu propio 
ground is:
*CTA = CA 1.without merit
2. prosecuted for delay
3. questions raised are too
unsubstantial to require
consideration.
NASAM 2017 32
R46 – Procedure in CA for original cases

S2 Original case in the CA
1. Certiorari (R65)
2. Prohibition (R65)
3. Mandamus (R65)
4. Quo warranto (R66)
5. Habeas corpus
6. Writ of amparo
7. Writ of habeas data
8. AMLA – Freeze Order
9. Annulment of judgment (R47)
S4 How to acquire jurisdiction over the person of respondent
1. By the service on him of order or resolution indicating its initial action; (not summons)
2. By voluntary appearance
 CA can conduct a hearing in original cases  the division consisting of 3 justices; you can present
evidence;
 CA can direct an RTC to receive evidence for the CA in original cases; thereafter the RTC will prepare
and submit a report to CA
S3 (must be read in relation to R65): Requirements for petition
 This is very important because if you will file certiorari to CA you will have to comply with R46 S3,
otherwise your petition for certiorari will be dismissed.
R47 Annulment of judgment
 This is the only instance, if the court finds due course, the CA will issue summons
R48 Preliminary Conference
 Equivalent of a pre-trial in CA
1. Amicable settlement
2. Stipulation of facts
3. Admissions
4. Identification of issues
 What if the appellant is absent during the preliminary conference? The appeal will be dismissed. R50
R49 ORAL ARGUMENT

 Only original cases in the CA and SC are orally argued
 Should a motion filed in the CA require a notice of hearing? (R49 S3) – no hearing or oral argument
for motions
R51 JUDGMENT
 In CA judgments are determined / decisions are rendered in divisions of three; and the vote should be
unanimous; if unanimous vote cannot be obtained, the presiding justice of the CA who is the
equivalent of the Chief Justice of the SC will create a special div of 5 and the majority vote will suffice.
 The entry of judgment works in the same manner as R36; after the lapse of the regla period there will
be an entry of judgment
 Decisions of the CA are promulgated; (you will meet promulgation again in R120 crim pro w/c is very
different)  in civil case it is cover note for the decision;
 In trial court judgments are not promulgated because there is only one judge; the judge renders a
decision and the judge through the staff serves it.
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R52 MOTION FOR RECON

 15 days to file; unextendible;
 MR in CA  90 days to resolve; (in RTC 30 days lang)
R53 MOTION FOR NEW TRIAL

The sole ground  newly discovered evidence
The period to file a MNT in CA is, from the time appeal is perfected, AND for as long as CA has
jurisdiction
R56 ORIGINAL CASES OF SC

S1 Original cases cognizable – exclusive list:
1. Petitions for certiorari, prohibition, mandamus, quo warranto, habeas corpus;
2. Disciplinary proceedings against judges and attorneys;
3. Cases affecting ambassadors, other public ministers, and consuls.

S2 PROCEDURE
R46 - original actions for certiorari, prohibition, mandamus and quo warranto.
R48 – preliminary conference
R49 – oral argument
R51 - judgment
R52 – motion for recon
 no MNT in SC
 no annulment of judgment in SC
CA Appealed cases
R41 – Ordinary appeal from RTC to CA
R42 - Petition for Review from the RTC to the CA
R43 - Appeals from the CTA & Quasi-Judicial Agencies to the CA
R44 – appeal to CA under R41
SC Appealed cases
R45 - Appeal by Certiorari to the Supreme Court
Verified petition with Supreme Court.— Appeal by certiorari from a judgment or final order or
resolution of
1. Court of Appeals,
2. the Sandiganbayan,
3. Regional Trial Court
4. or other courts whenever authorized by law
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Certiorari as a Mode of Appeal Certiorari as a Special Civil Action Rule 64 Rule 65

(Rule 45) (Rule 65)
Called petition for review on A special civil action that is an Directed only to the Directed to any
certiorari, is a mode of appeal, original action and not a mode of judgments, final tribunal, board or
which is but a continuation of the appeal, and not a part of the orders or officers exercising
appellate process over the appellate process but an independent resolutions of the judicial or
original case; action. COMELEC and quasijudicial
COA; functions;
Seeks to review final judgments or May be directed against an Filed within 30 days Filed within 60
final orders; interlocutory order of the court or from notice of the days from notice of
where not appeal or plain or speedy judgment; the judgment;
remedy available in the ordinary
course of law
Raises only questions of law; Raises questions of jurisdiction The filing of a The period within
because a tribunal, board or officer motion for which to filed the
exercising judicial or quasi-judicial reconsideration or a petition if the
functions has acted without motion for new trial motion for
jurisdiction or in excess of jurisdiction if allowed, reconsideration or
interrupts the
or with grave abuse of discretion new trial is
period for the filing
amounting to lack of jurisdiction; denied, is 60
of the petition for
certiorari. days from notice
Filed within 15 days from notice of Filed not later than 60 days from of the denial of
If the motion is the motion.
judgment or final order appealed notice of judgment, order or
resolution sought to be assailed denied, the
from, or of the denial of
aggrieved party
petitioner’s motion for and in case a MR or MNT is timely may file the petition
reconsideration or new trial; filed, whether such motion is within the
required or not, the 60-day period is remaining period,
counted from notice of denial of said but which shall not
motion; be less than 5 days
reckoned from the
Extension of 30 days may be Extension no longer allowed;
notice of denial.
granted for justifiable reasons
Does not require a prior motion Motion for Reconsideration is a

for reconsideration; condition precedent, subject to
exceptions
Stays the judgment appealed from; Does not stay the judgment or order
subject of the petition unless
enjoined or restrained;
Parties are the original parties The tribunal, board, officer exercising
with the appealing party as the judicial or quasi-judicial
petitioner and the adverse party functions is impleaded as respondent
as the respondent without
impleading the lower court or its
judge;
Filed with only the SC May be filed with the SC, CA,
Sandiganbayan, or RTC
SC may deny the decision motu

propio on the ground that:
1. the appeal is without merit, or
2. is prosecuted manifestly for
delay, or
3. that the questions raised
therein are too unsubstantial
to require consideration.
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PROVISIONAL REMEDIES –
Why do we have provisional remedies?  to secure the judgment
GR: Provisional remedies are ancillary to the principal action only;

XPN: under the ADR, it could be filed as an ordinary civil action because it is an interim relief
R57 – PRELIMINARY ATTACHMENT
 When judgment is already final and executory, properties that have been attached shall be used first to
satisfy the said final judgment;
 Personal and real property will be subjected to auction sale to satisfy the judgment;
 When all the proceeds of the sale of these properties are still not enough to satisfy the judgment, then
it is proper to go through ordinary execution under R39;
 GROUNDS
a) In an action for recovery of money  There should be an obligation; the person is about to depart; with
intent to defraud;
b) In an action for recovery of money/prop  ESTAFA civil aspect;  also in criminal case R127 S2;
c) In an action to recover possession of prop (real or personal prop)  fraudulently and unjustly taken;
concealed, removed or disposed of;
d) There is fraud in contracting the obligation OR fraud in the performance;
e) In an action against a party who has removed or disposed of his property;
f) In an action against a party who does not reside in the Phils;
 When to apply attachment – S1  at any time before entry of judgment
 *** Contents of an affidavit 
1) statement that there is a cause of action;
2) the grounds
3) the amount appearing in the order above all legal counterclaims 4) there is no sufficient
security
Equitable Bank vs Special Steel Products – Is affidavit enough to support an application for
attachment
 the affidavit says  I have cause of action; there is no sufficient security for our claim; ready to put
a bond; narrative of how fraud was committed against him;
 This affidavit is NOT enough as it has no enough details; the allegation should specify in detail
Illustration:
I have a complaint, then I applied for attachment; my application for attachment is incorporated in the
complaint; it was part of an initiatory pleading; the judge issued an order granting the application
for attachment; the judge required the plaintiff to post a bond for P1M because the claim is P30M;
Is the attachment already in effect when the court issued the order? No, jurisdiction over the defendant
is not necessary;
To continue, the plaintiff received an order to post bond; plaintiff complied; judge issued a writ of
attachment;
Can the Order and the Writ be enforced? -- jurisdiction over the defendant is still not necessary;
Answer: NO, it cannot be enforced because summons must have been served prior or
contemporaneous with; (summons, order, writ)
Is the writ of preliminary attachment only effective within the judicial region? NO. It is effective
in the entire Phils as distinguished from a Writ of Preliminary Injunction; BP129
How is attachment done? Attachment is custodia legis if personal prop; if real prop tatak lang sa likod
ng title (annotation on attachment); how about money?  you cannot withdraw from the bank;
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SC Ruling on alias summons in connection with Writ of Attachment: The alias summons belatedly
served on petitioner cannot be deemed to have been cured the fatal defect in the enforcement of writ
of attachment, the trail court cannot enforce such coercive process on petitioner without obtaining
jurisdiction over his person.
How about if sole proprietorship?  Sole proprietorship has no legal personality, it is not a juridical
entity; the properties of the owner are the props attached;
Can you recover damages? Yes! This is the reason for the “bond”
S20 R57  this provision applies to attachment, receivership and replevin
What can be recovered?
1) For a wrongful attachment  no proof of bad faith required
2) For wrongful and malicious or in bad faith attachment  moral & exemplary damages may also be
recovered
To merit an award of actual damages arising from a wrongful attachment, the attachment defendant
must prove with the best obtainable evidence the fact of lost or injuries suffered; amount must be
measurable based on facts and not on speculation;
If the claim for actual damages covers unrealized profits, the amount must be established and supported
by independent evidence of the mean income of the business interrupted by the illegal seizure;
GR: attorney’s fees cannot be awarded when moral and exemplary damages are not granted;
XPN  when a party incurred expenses to lift a wrongfully issued Writ of Attachment;
Metro Ink vs Lara: The rule that when a Writ of Attachment is issued upon a ground which is at the same
time the applicant’s cause of action, the only other way that writ can be lifted is by way of COUNTER BOND;
How do you dissolve an attachment?  S12 & S13 R57  that it was irregular, improper or excessive; OR
by counter bond;
S12  by counter bond  one can only post a counter bond after the writ of attachment has been enforced;
 There could be a partial release by a counter bond;
S13  Improper =there is no ground; Irregular = the process has not been observed; Excessive = when
the property attached is valued way more than the amount of obligation
Example of a 3rd Party Claim:
 May 3rd party claim; papano masu-suspend ang attachment?  if the Sheriff receives an affidavit. The
sheriff will not push through with the attachment;
 Here meron ng affidavit but he also filed a motion to release property on attachment; How would the
court treat this?  the are 2 ways to treat this:
1) can be considered a mere continuation of the 3rd party claim;
2) can be considered as a Motion for Intervention;
Valdevieso vs Damalerio
 I have a property that I sold to A; the deed of absolute sale was not registered; so, as far as the registry
of deeds is concern I am still the owner of the property; A person filed a case against me and applied for
attachment of my property; the property that I sold to A was then attached; Thereafter, A asked that
the title of the property that he bought from me be transferred to him na;
 Question: Can this property that has an annotation for attachment be transferred to A?
 RULE: The levy on attachment duly registered takes preference over a prior unregistered sale.
 This preference is not diminished even by the subsequent registration of the prior unregistered sale, this
is so because an attachment is a proceeding in rem; it is against the particular property; enforceable
against the whole world;
 The lien continues until the debt is paid or sale is had under execution issued on the judgment OR until
judgment is satisfied; or attachment discharged or vacated
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R58 – PRELIMINARY INJUNCTION

 An action for injunction is an ordinary civil action;
 Petition for preliminary injunction is not an ordinary action; this is an ancillary action
Bacolod City Waters vs Labaye – original action for injunction vs. preliminary injunction
 A preliminary injunction is a provisional remedy; a complaint for injunction is an ordinary civil
action, therefore there’s a breach, there is a violation;
Preliminary mandatory injunction – R70  in ejectment cases the complainant, within 5 days, should
apply for preliminary mandatory injunction so that the court will give the plaintiff the possession of the
property while the case is pending;
 Still on ejectment  prelim mandatory injunction may be applied when the appeal is perfected;
What are the requisites for writ of preliminary injunction:
1) Clear and unmistakable right;
2) His right has been violated and the invasion of the right is material
3) There is urgent and permanent necessity for the writ to prevent serious damage.
Temporary restraining order  is to stop you only for a period of 20 days; no extension; you need a
bond;
 During the period of 20 days, a hearing for prelim injunction shall ensued;
 If after 20 days no order was issued, the TRO is automatically lifted; RTC = 20 days; CA = 60
days; SC = until further orders of the court;
Where can you apply for prelim injunction?  RTC, CA, SC
Can you apply P/I as part of or an ancillary to a petition for certiorari under R65?  YES; On R45? YES;
Can I apply for preliminary injunction while the action is pending? Yes;
Temporary Environmental Protection Order (TEPO)  to prevent violation of environmental laws; No
need a bond for this;
Temporary Order of Protection  equivalent of TRO if you apply an interim relief under the ADR
Barangay Protection Order  for a relief given in instances of violation of VAWC
Ex Parte TRO  72-hour TRO
1st scenario – ex parte TRO
 There is a complaint and there is application for TRO & PI in court AND you’re claiming urgency;
 you apply for 72-hour TRO when there is urgency and great and irreparable injury that should
appear in your complaint;
 Who issues the ex parte TRO?  an executive judge in a multi-sala court;
 No summary hearing; TRO becomes effective upon issuance  service of summons prior to or
contemporaneous with
 Within the 72 hours  it will be raffled; it will be assigned to a branch, which will conduct a
summary hearing to determine whether the 72-hours will become 20 days; then he will issue a
TRO (20 day)
 During the 20-day period hearing ulit to see if you are entitled to preliminary injunction;
 Here the summary hearing is only for purposes of sampling the evidence as basis for issuance of a
preliminary injunction
2nd scenario – ex parte TRO
 There is a complaint and there is application for TRO & PI, BUT you’re not claiming urgency;
instead, you’re claiming grave and irreparable injury
 The exec judge cannot issue TRO  It must be raffled and the judge shall issue TRO if there is
“grave and irreparable injury;
NASAM 2017 38
3rd scenario
 There is a complaint and there is application for TRO & PI, BUT you’re not claiming urgency nor
grave and irreparable injury  was raffled and assigned to a judge;
 The judge conducts summary hearing then issued 20-day TRO
 Can the judge issue writ of preliminary injunction without notice and hearing?  No.
 Dela Paz vs Andiong  nag-issue sya ng P/I walang hearing; hindi pwede; Also, here it was issued in
the City of Marawi; this could not be implemented outside of Marawi;
 The grant of preliminary injunction is an interlocutory order  therefore if you disagree with the
finding of the court you can file an MR; and if the MR is denied, you can file a petition for certiorari;
 The grant of preliminary injunction rest solely upon the sound discretion of the court;
 To establish the essential requisite for P/I the evidence to be submitted need not be complete and
conclusive  all that is required is - there is an ostensible right to the relief prayed for;
 The court cannot issue a TRO without an application  there is no TRO motu propio; having done that,
the judge can be administratively held liable;
Hernandez Case
 In connection w/NAPOCOR high-tension wires that passed through Dasmarinas Village; Mr.
Hernandez filed a case for damages with prayer for TRO and P/I, allegedly because the radiation
that this NAPOCOR line emits causes cancer;
 Trial court issued the writ – due to health risk; it would probably impair the health and safety 
that would result to an irreparable injury; what they used is - probably in violation of the law and
that would result to injustice;
 Irreparable injury  that the damage is not measurable
 “Probability” is enough basis for issuance of injunction as a provisional remedy which is different
from injunction as a main action where one needs to establish absolute certainty.
 Can a court issue a TRO to stop a government infrastructure project?  No.
 Can a court issue injunction to stop a court of co-equal rank?  No.
 Can P/I be issued in environmental cases to stop any act which involves performance of enforcement
of environmental laws?  No. Only the SC can issue a P/I in environmental cases.
 Can a court issue P/I to restrain collection of internal revenues?  No.
 Can you restrain a criminal prosecution? GR: No.
XPN: (1) to afford adequate protection of the constitutional rights of the accused;
(2) when necessary for the orderly administration of justice & to avoid multiplicity of suits;
(3) when double jeopardy is clearly apparent
(4) when the charges are manifestly false and motivated by vengeance
(5) when there is clearly no prima facie case against the accused and a motion to quash has been
denied;
 a denied motion to quash has NO REMEDY, you cannot go up on a certiorari as a rule,
unless it is tainted with grave abuse of discretion OR when it appears that there is
no prima facie case.
 An original action for injunction is OUTSIDE the jurisdiction of CA  it should be filed with RTC
because it is a case not capable of pecuniary estimation, UNLESS, there is claim for damages then the
jurisdiction will be affected by the damages portion;
 The appellate court has original juris only over actions for annulments of judgment, writs of
mandamus, prohibition, certiorari, habeas corpus, and quo warranto; and auxcilliary writs and
issuances whether or not in aid of appellate jurisdiction;
NASAM 2017 39
Sps Marquez vs Alindog  Considering that the acts sought to be restrained has already been performed the
issuance of the writ was improper;
How do you dissolve an injunction (S6)
1) Upon affidavit  where you will show that there is no cause;
2) Upon a counter-bond  the person posting the counter-bond has to show that the damage that he
will suffer is far greater than that of the applicant;
R59 – RECEIVERSHIP
 To preserve the property of the defendant in a case
 The property is in danger of being wasted or dissipated.
 A receiver is a person appointed by the court – purpose: preserving the property and preventing it from
being wasted
 Here there are 2 bonds:
1) That of the applicant – to cover the damage of the other party
2) That of the receiver – to cover the damages that will be suffered by his performing of his function as
the receiver
 A receiver should be a person who is disinterested; impartial; should act at all times with diligence and
prudence; cannot incur expenses without leave of court;
 An application for receivership should be verified;
 Receivership is applied in the trial court, CA or SC;
 Examples: Mafori Case  dacion en pago for an unpaid loan; wife said prop is conjugal; wife filed for
receivership so that the rentals will be protected;  there was failure to show that the property will be lost
or damaged or that the property was materially injured; hence, receivership was not granted  the policy
of the court is to refrain from issuing or granting receivership.
 When can you apply for receivership: (S1)
1) You want the property to be preserved during the pendency of the action is in danger of being wasted
or dissipated;
2) When there is a stipulation in a mortgage agreement OR when the security is no longer sufficient to
secure the obligation;
3) Even after the judgment has already been rendered, and even if it is already final & executory; 4) Other
situations where the court may deem as appropriate.
 The need to satisfy medical expenses could not be a basis for appointment of receivership  the
financial needs and like reasons are NOT found in S1
 In a case, while there was an action for accounting there is an application for appointment of a receiver; it
was granted by the trial court; when it reached the SC the question was: Can that be a basis for
appointment of a receiver?  NO!
 What a receiver is ought to do?
1) Receiver is placed under oath; 2) Should post a bond
APPLICANT’S BOND RECEIVER’S BOND

- answers for all damages that the adverse party may - Answers for damages suffered by reason of the
sustain by reason of the appointment of such failure of the receiver in the discharge of his duty -
receiver
-
 How do you dissolve a receivership? Only on 2 grounds:

1) When there is no cause
2) Upon a counter bond
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 What are the duties of a receiver?  acts of administration

1) To bring and defend action in his name
2) To take and keep possession of property in controversy
3) To receive rents
4) To collect debt due to himself as a receiver;
5) To compound or to compromise the same; 6) To make transfers;
7) To pay outstanding debts:
8) To divide the money
R60 – REPLEVIN
 Can only be applied for BEFORE an answer; at MTC, RTC – depending on the value 
Contents of Affidavit:
1) Should allege that the applicant is the owner or the lawful possessor;
2) That there is unjust deprivation  that the property is wrongfully detained by the adverse party;
3) The property has not been taken for a tax assessment a fine pursuant to a law OR seized under a
writ of execution, or preliminary attachment, or is custodia legis;
4) The actual market value of the property  this is important for the computation of bond which
should be double the value of the property; counter-bond is equivalent to this value; 
UNJUST/UNLAWFUL DEPRIVATION Examples:
 In one case; logs are questionable so the DENR detained the logs; so, an action for recovery of
possession of personal property was then filed  REPLEVIN CANNOT LIE
 During a buy bust operation, the suspect was arrested by the police and his properties, cellphone,
laptop and motor vehicle were detained  Can a writ of replevin stand?  No, because the
deprivation was lawful.
 How will you dissolve a Writ of Replevin?
 To immediately discharge the writ and have immediate release of the property  simply post a
counter-bond; (redelivery bond  which should be posted within 5 days)
R61 – SUPPORT PINDENTE LITE

 This is ancillary action to the principal action for support, nullity of marriage, annulment of marriage
and legal separation;
 You can apply only in the RTC (as a family court), CA, SC
 If one refuse to comply with the order of the court to give support pindente lite  the court will
issue a Writ of Execution; this is one of the very few instances wherein court issues a writ of
execution even in the absence of final judgment;
 Support pindente lite is only an INTERLOCUTORY order;
 This is the only provisional remedy where there is NO requirement of a bond;  R57 S20 is not
applicable here;
 Kung nagkamli  recovery or reimbursement
 How can you recover?  if the action is still pending, you could recover from the person who received
the support primarily; if the person who received the support cannot return, you can recover from the
person who should be giving the support;
 If there is already a final judgment  you could recover in a separate action
 S6  for criminal offense  like rape, adultery  the child can ask for SPL
 Is it necessary in a support pindente lite for the court to establish the merits of the case?  NO. A
court may temporarily grant a SPL prior to rendition of judgment
NASAM 2017 41
SPECIAL CIVIL ACTION – are all original actions; and not appeals;
If provisions of the special rule is inadequate then you have to refer to the rules on ordinary
civil actions
R62 INTERPLEADER
 Primary reason: to prevent the plaintiff from being vexed or harassed;
 Filed in RTC  no claim for damages; there is no breach or violation of one’s right; you are just
asking the court to ask the parties to interplead;  Examples:
1) Two women are claiming to be the lawful beneficiary of a life insurance benefit of a deceased
person; both of them claim that they are the legal wife;  the insurance company in order not to
expose themselves to suits if they commit error, they will file interpleader in the court.
2) Two homeowners’ association  a resident got confused to whom he should pay the homeowner’s
dues; interplead ang consign your money in the court;
 You could file a motion to dismiss  here ordinary rules will have to apply  additional ground:
Propriety of the interpleader;
 Case of Maglente
- There is question as who between the conflicting claimants has the right to purchase the property; the
court decided in favor of one party with an order of execution and also issuance of writ of possession;
- A writ of possession compliments a writ of execution ONLY when the right of possession or ownership has
been validly determined by the court  which in this case the interpleader court did not do;
- When the subject matter is only the Deed of Sale it cannot cover the Writ of Possession;
 Can there be counterclaim or cross-claim in an action for interpleader?  S5(2) R62  the parties in the
Interpleader may file counterclaims, cross-claims, and 3rd party complaints and responsive pleadings;
 Classic illustration: when there are conflicting claims for ownership and the lessee does not know to whom
he should pay but does not want to render payment to the wrong person  the lessee should file an action
of Interpleader, provided there is NO breach yet on the part of the plaintiff.
R63 DECLARATORY RELIEF AND SIMILAR REMEDIES
 S1  1st para: you want the court to interpret a contract, will or deed; OR you want the court to determine
validity of a statute, a governmental regulation, or an ordinance;
 RTC has jurisdiction  because there is no breach, hence, incapable of pecuniary estimation;
 If it is a question of constitutionality, it is not w/in the jurisdiction of the RTC, but SC;
 S1  2nd para: quieting of title, removal of clouds, reformation and consolidation  RTC
 QOT = juris is not determined by its value; is within the juris of RTC  no deprivation of possession;
*Accion publiciana = recovery of possession after one year  determined by the assessed value
because there is deprivation of possession (remember: when there is deprivation of possession 
w/in one year it is an action for ejectment,  beyond one year accion publiciana na)
 Consolidation  this is NOT foreclosure; NCC Art. 1607  this is pacto de retro sale  na hindi
na nabawi kaya magkakaroon ng consolidation
 Reformation  in instances where there is mutual mistake;
 R63 in the light of R65  Customs vs Hypermix  Commissioner of Customs issued memorandum
classifying wheat wc affects the tariff; a company filed a pet for dec relief w/RTC; Customs Comm
move to dismiss alleging that an action for declaratory relief was improper since a memorandum is an
internal policy and not legislative in nature;
 SC  the Commissioner is not correct because his issuance of Memorandum is equivalent to a rule
making power, hence, declaratory relief will stand.
 Galicto vs Aquino  Pres Aquino, when he assumed office he noticed that benefits of officers and
employees of GOCCs  issued an EO  Rationalization…  an employee complaint and filed a petition
for certiorari;
NASAM 2017 42
 SC  certiorari is not proper because it is not judicial or quasi-judicial, it should be Declaratory

Relief.
Certiorari under Rule 65 Certiorari under Constitution
Covers any act of JUDICIAL or QUASI-JUDICIAL body Covers any act with grave abuse of discretion of ANY
with grave abuse of discretion amounting to lack of AGENCY of the government
jurisdiction.
Ex: Certiorari questioning declaration of martial law
and suspension of the writ of habeas corpus
 This is the only provision where there could be CONVERSION  from special civil action to an
ordinary civil action  which will take place when there is breach
 Requisites of Declaratory Relief
1) There should be a Justiciable;

2) The controversy should be between persons whose interest are adverse;
3) The parties must have legal interest in the controversy;
4) The controversy must be ripe for judicial determination; 5) The petition must be filed before there
is a breach or violation.
R64 - Petition for Certiorari R65 - Petition for Certiorari
1. Review of COMELEC and COA  directly to SC 1. Review of RTC, CA, SC  hierarchy of courts
2. Period to file  30 days 2. Period to file  60 days
3. Period cannot be extended 3. GR: period cannot be extended (as amended 2007)
XPN: there is compelling reason
4. If the Agency allows  MR can be filed  period is merely
interrupted, hence, if denied you only have remaining 4. If MR is denied you have a fresh period
period.
5. Pertinent pleadings will have to be attached
5. All of the attached pleadings should be certified true copies
R65 CERTIORARI, PROHIBITION, MANDAMUS

PROHIBITION
 Judicial, quasi-judicial and ministerial;
 Requisite  Grave abuse of discretion amounting to lack or excess of jurisdiction and there is no
appeal or any plain and speedy remedy in the ordinary course of law available;
 Same period applies  60 days
 Prohibition will not stand if the act sought to be prohibited has already been performed;
 Prohibition  a special civil action and an original action; if granted, the court can issue a final
judgment prohibiting you from doing an act; directed only against judicial, quasi-judicial and
ministerial officer;
Preliminary Injunction  a provisional remedy; is only preliminary not a final judgment; although
after hearing it may become permanent; directed against a public officer or a private individual.
MANDAMUS
 There should be a law that requires performance of an act that does not require discretion;  Only
applies to ministerial acts; if it is an exercise of discretion  forget about mandamus.
 If the court refuses to render judgment, you can file Mandamus to require the court to decide.
 Continuing Mandamus  requires you to perform acts for the protection of environment and
healthful ecology; the court continues with its jurisdiction so that the court can see to it that you
comply with the required performance;  filed in RTC, CA, SC;  no need to pay docket fees;
NASAM 2017 43
 DENR vs Casino  here there is a fund for future and contingent claims; trust fund is recognized
under environmental rules; BUT the SC ruled that it is NOT in the same nature of a trust fund for
rehab and restoration  because it will amount to damages, hence, you need to file a separate civil
action;
 it is treated in the same manner as writ of amparo, writ of habeas data;
 Writ of Kalikasan  it is that damage to the environment is of that magnitude as would prejudice
life, health and property in at least two cities and provinces.  this is filed only in SC or any station of
CA.
 So, if the damage is not of this magnitude mag-citizens suit ka lang o continuing mandamus;
 Protection Order  to require books, papers and other evidence

 Inspection Order  to enter the premises
R66 QUO WARRANTO
S1. Action by Government against individuals. – An action for the usurpation of a public office, position or
franchise may be commenced by a verified petition brought in the name of the Republic of the
Philippines against:
a) A person who usurps, intrudes into, or unlawfully holds or exercises a public office, position or
franchise;
b) A public officer who does or suffers an act which, by the provision of law, constitutes a ground for
the forfeiture of his office; or
c) An association which acts as a corporation within the Philippines without being legally
incorporated or without lawful authority so to act.
 How the government institute the action General Rule:
1) The solicitor general if directed by the President 2) The solicitor general upon a sufficient complaint
3) The solicitor general upon the relation of another person  a realtor = someone who relates to the
solicitor general  may nagsulsol  to protect the office Sol Gen goes to the court to seek
permission of the court to determine if he could file an action for quo warranto against the subject
person;
XPN:  the aggrieved party filing his own action against the usurfer  Liban vs Gordon  the very
moment it appears that the person instituting the action is NOT entitled to the office, the
action will be dismissed.
 Moro vs Del Castillo  accountant of GHQ of AFP  preventively suspended then eventually
dismissed  he appealed and pray for reinstatement while case is pending since his replacement was
only holding temporary position.
1) What is the effect of the dismissal of the ombudsman?  EXECUTORY!  an appeal should not stop
the order of ombudsman from execution  no appeal  may questioned on a R65.
 Emerson de Castro vs Carlos  nag-aaway na MMDA; De Castro is an assistant manager SESO

(with security of tenure); Mr Carlos was appointed replacing him; De Castro instituted an action
pinatatanggal nya si Mr. Carlos.
2) Was De Castro entitled to the office?  he failed to prove his entitlement to the issuance of the
Writ; the appointment of Mr Carlos was valid, hence, his action for quo warranto should fail.
 Divinagracia vs Consolidated Broadcasting  Consolidated Broadcasting was given a legislative

franchise in telecommunications; he was not complying with the terms and condition of the franchise.
3) What is the proper action against the non-complying franchisee?  writ of quo warranto
NASAM 2017 44
R67 EXPROPRIATION***
 RTC has jurisdiction – dictated by the exercise of the right.
 Real or personal property may be the subject of expropriation
 Can take possession even before expropriation  but the govt should deposit the assessed value of the real
property;
 Pag personal property  it is based on the amount to be determined by the court
 Indispensable parties  government as plaintiffs or instrumentalities of the govt;
 When the property belongs to the Republic there is no sense for the government instituting an
expropriation proceeding against itself; however, the Republic can still file an action for expropriation
against the present possessor of such property;
 On matters of compensation – mandatory stages

1) Expropriation  the Order of Expropriation is by itself appealable; mode of appeal = a record on appeal
 because it involves multiple appeal
2) Determination of Just Compensation 
 If its local government expropriating  15% of the market value should be paid; and there should be an
ordinance
 National Government infrastructure project  Ex. NAIA3 case  immediate payment to the property owner
was ordered by the court; RA8974 - zonal valuation of the BIR is the basis of value;
 DPWH  Edsa–QA Flyover  R67 S9  can the court entertain issue on matter of ownership  Yes only to
determine who is entitled to just compensation.
 Can the republic change its mind?  any time before there is an order of expropriation   What happened
to the initial damaged caused by the govt?  the owner is entitled to damages
 What is if the public purpose sought is no longer present, can it be withdrawn by the govt?  YES.
 Just compensation is determined whichever comes first with the time of filing of complaint or the time of
taking of possession;
 If the govt doesn’t know to whom payment is to be made  money will have to be deposited in the court
until the one entitled is determined.
R68 FORECLOSURE OF REAL ESTATE MORTGAGE
Judicial Foreclosure Extrajudicial Foreclosure Execution
How to initiate File and pay docket fees File a petition for extrajudicial File a motion for
foreclosure before the Ofc of execution
the Clerk of Court under the
Exec Judge.
Redemption period Equity of Redemption  90– 1 year 1 year

120 days  the court will sell
the property;
It’s possible that it is 1 yr if
there’s a law that gives a
longer period to redeem
Who will be in The owner The owner The judgment obligor

possession during the
redemption period
Who will be entitled to The owner The owner The judgment obligor
profits and rents
during the redemption
period
Judicial Confirmation Certificate of Sale
NASAM 2017 45
When foreclosure is being done by a bank -

(1) Lender is a bank & borrower is a natural person
Redemption period  1 year, judicial or extrajudicial
Who is entitled to possession  the bank or the purchaser
(2) Lender is a bank & borrower is a juridical entity
Redemption period  3 months or registration of cert of sale whichever comes first.
Robles vs Yapsinco (2014)
 Yapsinco constituted a mortgage on the property in favor of a certain Marcelo to secure an
obligation  there was an action for judicial foreclosure  becomes final and executory  no Cert
of Sale was registered  nanalo yung nagfile ng judicial foreclosure.
 Registration of sale is required only on extrajudicial foreclosure
 The registration of the sale is superfluous in a judicial foreclosure;
Lim vs DBP (2013)
 Notice of extrajudicial foreclosure. Unless the parties stipulate, “personal notice to the
mortgagor in extrajudicial foreclosure proceedings is not necessary” because Section 3 of Act 3135
only requires the posting of the notice of sale in three public places and the publication of that
notice in a newspaper of general circulation.
 In this case, the parties stipulated in their Agreement that notice must be sent; However, no
notice of the extrajudicial foreclosure was sent by DBP to petitioners. The letters advising
petitioners to immediately pay their obligation to avoid the impending foreclosure of their
mortgaged properties are not the notices required in the Agreement.
 The failure of DBP to comply with their contractual agreement with petitioners, i.e., to send notice,
is a breach sufficient to invalidate the foreclosure sale.
R69 PARTITION
 Two stages of partition
1) Determination of the existence of a co-ownership  2) Partition 
 Indispensable parties on an action for judicial partition  all co-owners; all co-owners should be
impleaded; when not all indispensable parties are impleaded, any decision will be null and void.
 There is NO mandatory stage of the appointment of commissioners  the appointment of
commissioners will take place ONLY when the parties do not agree to stipulate;
 The Dept of Agrarian Reform has NO jurisdiction over judicial partition, specifically the PARAD.
 Quintos vs Nicolas (2014)
 The deceased parents left their 10 children ownership over the subject property. In 2002,
respondent siblings brought an action for partition against petitioners.  but was later on
dismissed for failure to prosecute  the effect of this dismissal is an adjudication on the merits,
with prejudice (R17 S3);
 Respondent siblings instead resorted to executing a Deed of Adjudication to transfer the property
in favor of the 10 siblings.
 Later on, this Agreement was not recognized by other siblings  so, for that reason there was an
action for quieting of title  in that action there was a counterclaim involving partition.  an issue
was raised that this counterclaim for partition is barred by prior judgment.
 SC  The counterclaim for partition is not barred by prior judgment.  dismissal with
prejudice under R17, S3 of the ROC cannot defeat the substantive right of a co-owner to ask for
partition at any time, provided that there is no actual adjudication of ownership of shares yet. This
is pertinent to Art 494 of the NCC which provides that no co-owner should be obliged to remain in
coownership. Thus, the law provides that each co-owner may demand at any time the partition of
the thing owned in common.
NASAM 2017 46
 Where to file petition for partition?

 If what to be partitioned is a real property  it is determined by the assessed value
 If its personal property  it’s the residence; dictated by the value of the property
 If it’s a mix  joinder of causes of action = RTC
 The very moment, if the prop is indivisible  prop is sold, proceeds divided;
 What if one of the co-owners did not receive anything  judgment is null and void; and
paramount rights cannot be prejudiced
 How about if there is extrajudicial partition  there is no will, and no debts dapat; minors are
represented by guardians ad litem;
 If merong hindi nasama sa extrajudicial partition  they can still claim for their parts provided they
claim within 2 years from the time of distribution
 What falls within the definition of extrajudicial partition?
1) If there is an extrajudicial partition among the heirs which is reflected in a public instrument;
2) If there is only one heir  in affidavit of self-adjudication;
3) If there is a stipulation in an action for judicial partition it is treated as extrajudicial partition (R74)
and therefore requires publication.
 Mortgage jurisdiction  1st school of thought: because its foreclosure only  it’s with RTC
o 2nd school of thought:  because it involves an interest over the property hence, it should be
determined by the assessed value of the property
R70 FORCIBLE ENTRY & UNLAWFUL DETAINER (EJECTMENT)
 Summary procedure
 When do you need a demand letter?
Action for forcible entry  no need for demand letter
Unlawful Detainer case  needs a demand letter which should contain  “you have to comply and
vacate” OR “you have to pay and vacate”
 Cebu Automatic Motors (CAMI) vs General Milling
 mere failure to pay rents due to the violation of the terms of the lease does not automatically
renders possession of person unlawful; giving of such demand must be alleged in the complaint,
otherwise, the MTC cannot acquire jurisdiction over the case;
 a close examination of the demand letter  it has just merely informed recipient that he had
terminated the lease based on the violations of the term of the agreement; and on the basis of the
termination required CAMI to vacate the premises by the end of the month;
 GMC did serve a prior demand on CAMI. The question, however, is whether this is the demand
that R70 S2 contemplates as a jurisdictional requirement before a lessor can undertake a judicial
ejectment pursuant to Article 1673 of the Civil Code.
 SC ruled that the letter did not demand compliance with the term of the lease, it merely informed
CAMI  It is only after the demands for payment or compliance are made on the lessee and
subsequently rejected or ignored that the basis for the unlawful detainer action arises.
 Air Transport Office vs CA (2014) – effect of the judgment
 MTC’s decision is executory  S19  If you file the appeal and post the supersedeas bond w/in
the reglamentary period and pay rentals monthly w/the appellate court  the judgment will not be
executed on  execution will be stayed;
 RTC’s judgment is not stayed by an appeal unless decision is modified OR if ordered by the CA
through TRO or preliminary injunction;
 The execution of the RTC’s judgment in an ejectment case is not discretionary execution
 Motion for Recon, Motion To Declare In Default, Certiorari, Prohibition, Mandamus, Pet For Relief From
Judgment  are all prohibited pleadings
NASAM 2017 47
 What is prohibited is the MR of a judgment, not the MR for interlocutory order

 Re 1 year counting about demand letter  1 year is counted from the last demand
 Important allegations in an action for forcible entry  plaintiff must prove that he was in prior
possession of the disputed property and that the defendant deprived him of his possession by any means
provided in S1 R70  force, intimidation threats, strategy or stealth. (FITSS)  no need for demand letter;
 Illegal entry = implied force
 Acts of unlawfully entering the premises or erecting builing and excluding the present possessor implies
force
 Corpuz vs Agustin  EJECTMENT  every law student should know this, this is very basic
 if there is a dispute as to the matter of ownership, MTC can determine who is the owner of property;
 that is only provisional determination of ownership; this is not res judicata; you could still file an
action for determination of ownership in RTC;
R71 CONTEMPT
DIRECT INDIRECT
– any act of disrespect in the presence of – It consists of willful disobedience of the lawful process or
the court or so near the judge order of the court.
• any baseless or unfounded accusations
towards a judge or a court appearing in – It is not committed in the presence of the court, but
a pleading done at a distance which tends to belittle, degrade,
• you attend a hearing wearing t-shirt obstruct or embarrass the court and justice.
and blazer
• make face in front of the judge
procedure – it is summary  no notice & hearing; no – With notice & hearing
opportunity to be heard;
penalty RTC or higher court: RTC or higher court:

• A fine of not exceeding P2k or 10 days • A fine of not exceeding P30k or imprisonment of 6
imprisonment months
MTC MTC
• A fine not exceeding P200 or 1 day • A fine not exceeding P5k or imprisonment of not more
imprisonment than 1 mo.
Ways to 1. by a verified petition with supporting particulars and
initiate certified true copies of documents or papers involved
therein, and upon full compliance with the
requirements for filing initiatory pleadings for
civil actions in the court concerned
2. initiated motu proprio by the court against which
the contempt was committed by an order or any
other formal charge requiring the respondent to
show cause why he should not be punished for
contempt
Grounds – any act of disrespect in the presence of (Sec. 3, Rule 71)
the court or so near the judge
a) Misbehavior of an officer of a court in the
performance of his official duties or in his official
transactions;
b) Disobedience of or resistance to a lawful writ,

process, order, or judgment of a court, AND reentry
of a person ejected from any real property by the
judgment disturbing the possession given to the
person adjudged to be entitled thereto;
c) Any abuse of or any unlawful interference with the

processes or proceedings of a court not constituting
direct contempt under section 1 of this Rule;
NASAM 2017 48
d) Any improper conduct tending, directly or indirectly,

to impede, obstruct, or degrade the administration of
justice
e) Assuming to be an attorney or an officer of a court,

and acting as such without authority;
f) Failure to obey a subpoena duly served;
g) The rescue, or attempted rescue, of a person or

property in the custody of an officer by virtue of an
order or process of a court held by him
Remedy – Certiorari or prohibition  you have - an appeal

60 days to prepare for it
- post bond to stay execution
– Post bond to stay execution
If petitioner is declared not liable, that he did not commit an act of contempt, the adverse party cannot
appeal following the rule in criminal prosecution on double jeopardy.
 CLEAR AND PRESENT DANGER RULE  Marantan vs Diokno (2014)  si Atty and the client lumabas sa
TV Patrol; vented out their frustration on national TV; Before the SC, Marantan filed a Petition citing Atty.
Jose Manuel Diokno, Monique Cu-Unjieng La’o and Ernesto Manzano for contempt of court.
 The Petition of Marantan failed. There is no parallelism in Ortigas incident and the Atimonan case. There
was no violation of the sub judice rules as statements of respondents were legitimate expression of
their desires, hopes and opinion taken out of context and did not actually impede, obstruct or degrade
the administration of justice.
 As important as the maintenance of freedom of speech, is the maintenance of the independence of the
Judiciary. The "clear and present danger" rule may serve as an aid in determining the proper
constitutional boundary between these two rights.
 The "clear and present danger" rule means that the evil consequence of the comment must be
"extremely serious and the degree of imminence extremely high" before an utterance can be
punished. There must exist a clear and present danger that the utterance will harm the administration
of justice. Freedom of speech should not be impaired through the exercise of the power of contempt of
court unless there is no doubt that the utterances in question make a serious and imminent threat to
the administration of justice. It must constitute an imminent, not merely a likely, threat.
 Contempt for quasi-judicial agencies  S12  if the quasi-judicial agency had an internal rule on
contempt, then that internal rule will have to apply; If there is no rule, then rules under ROC will
suppletorily apply.
Robosa v. NLRC (Feb 8, 2012)  R71 does not require the labor arbiter or the NLRC to initiate indirect
contempt proceedings before the trial court. This mode is to be observed only when there is no law
granting them contempt powers. As is clear under Article 218(d) of the Labor Code, the labor arbiter or the
Commission is empowered or has jurisdiction to hold the offending party or parties in direct or indirect
contempt. The petitioners, therefore, have not improperly brought the indirect contempt charges against
the respondents before the NLRC.
 It is only the judge who ordered the imprisonment can order the release of the said person
 Criminal contempt vs Civil contempt (Lorenzo Shipping vs Distribution Association Management)

 CRIMINAL when the purpose is primarily for punishment;
 CIVIL if the purpose is primarily compensatory or remedial; to enforce compliance
● Misbehavior means something more than adverse comment or disrespect. There is no question that in
contempt the intent goes to the gravamen of the offense. Thus, the good faith, or lack of it, of the alleged
contemnor should be considered. Where the act complained of is ambiguous or does not clearly show on its
face that it is contempt, and is one which, if the party is acting in good faith, is within his rights, the
presence or absence of a contumacious intent is, in some instances, held to be determinative of its
character (Lorenzo Shipping Corp vs. Distribution Management Association, GR#155849, Aug 31, 2011)
NASAM 2017 49
 Can you charge a person for contempt if the same does not comply with the order of execution?
Generally, contempt is not a means of enforcing a judgment; the mere refusal or unwillingness of the
judgment debtor to comply with an order of the court to vacate is not sufficient ground to held him in
contempt; because there is a Writ of Possession that is directed to a sheriff and not to the judgment
obligor; BUT, if you have been dispossessed and later on returned to regain possession surreptitiously
then you can be held liable for contempt; R71 S3b
R39 S9 – money judgment  no contempt
R39 S10 – specific act  no contempt
R39 S11 – special judgment  with contempt
It is only on special judgment that non-complying party could be held liable for contempt  because
there’s no one else who will perform;
 An officer who disobeys a Writ of Certiorari can be held liable for contempt  R65 S9
 St Louis Univ vs Olairez (2015)

 Graduating medicine students nagalit kay Dean kasi dagdag ng dagdag ng requirements; they
were able to graduate and were able to do internship; still the dean refused to issue certification in
their favor because they did not comply w/the minimum requirements expected by the dean;
 The students then filed a case against Dean and St. Louis Univ  RTC in ruling in favor of the
students ordered St Louis Univ to comply with the court’s order  di na naman inintindi ng school
 then they filed a contempt case against the dean; So, the RTC cited the dean and the school in
contempt;
 SC said the RTC is not correct  In contempt, the intent goes to the gravamen of the offense.
Thus, the good faith or lack of it, of the alleged contemnor is considered. Where the act
complained of is ambiguous or does not clearly show on its face that it is contempt, and is one
which, if the party is acting in good faith, is within his rights, the presence or absence of a
contumacious intent is, in some instances, held to be determinative of its character. A person
should not be condemned for contempt where he contends for what he believes to be right and in
good faith institutes proceedings for the purpose, however erroneous may be his conclusion as to
his rights. To constitute contempt, the act must be done wilfully and for an illegitimate or improper
purpose.
 The Contempt Order in this case did not comply with the 3-day rule, hence, the dean was not able
to attend in the hearing conducted; the school and its officers where not given their opportunity to
be heard;
 Marantan vs Diokno (2014)

 The SUB JUDICE RULE restricts comments and disclosure pertaining to the judicial proceedings in
order to avoid prejudging the issue, influencing the court or obstructing the administration of
justice. A violation of this rule may render one liable for indirect contempt under Sec. 3(d) Rule
71 of the Rules of Court.
 The proceedings for punishment of indirect contempt are criminal in nature. This form of
contempt is conduct that is directed against the dignity and authority of the court or a judge acting
judicially; it is an act obstructing the administration of justice which tends to bring the court into
disrepute or disrespect. Intent is a necessary element in criminal contempt, and no one can be
punished for a criminal contempt unless the evidence makes it clear that he intended to commit it
 There was no violation of the SUB JUDICE RULES as statements of respondents were legitimate
expression of their desires, hopes and opinion taken out of context and did not actually impede,
obstruct or degrade the administration of justice.
NASAM 2017 50
CRIMINAL PROCEDURE
R110 – 127
INSTITUTION OF CRIMINAL CASE
Venue is jurisdictional  the place of commission of the crime is the place where the criminal action will be
instituted, UNLESS, it is a transitory or continuing offense  in which case the elements of the crime takes
place in various places;
Examples:
1) BP22 – it can be filed where the check was issued OR where the check bounced
2) Estafa – the fraud can take place in one place but the damage can take place in another place
S15  MOVING VEHICLES – action can be taken in any of the places where the vehicle passed through;
INSTANCES WHEN EVEN IF THE CRIME WAS COMMITTED OUTSIDE OF THE PHILS THE ACTION CAN STILL
BE INSTITUTED IN THE PHILS: (EXTRA-TERRITORIAL)
1) Art. 2 RPC 
1. Should commit an offense while on a Philippine ship or airship;
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by
the Government of the Philippine Islands;
3. Should be liable for acts connected with the introduction into these islands of the obligations and securities
mentioned in the preceding number;
4. While being public officers or employees, should commit an offense in the exercise of their functions; or (Some of
these crimes are bribery, fraud against national treasury, malversation of public funds or property, and illegal use of
public funds; e.g., A judge who accepts a bribe while in Japan.)
5. Should commit any crimes against the national security and the law of nations, defined in Title One of Book Two of
this Code. (These crimes include treason, espionage, piracy, mutiny, and violation of neutrality)
2) Human Security Law  in connection with acts of terrorism  gusto nila ubusin mga Pinoy sa
Hongkong, pinagbabaril mga Pinoy, can the case be instituted here? YES!
VENUE OF TRIAL CAN BE TRANSFERRED TO ANOTHER PLACE:  subject to approval of the SC
1) For the protection of the witnesses; 2) For the orderly administration of justice.
 The crime was committed in Maguindanao, is prosecuted in QC  they have obtained the approval of the
SC
 Take note that what was transferred was the venue of trial NOT the venue of intituting the action  the
Maguindanao case was initiated there but tried in QC.  The institution of action cannot be compromised;
R110  PROSECUTION OF OFFENSES / R112  PRELIMINARY INVESTIGATION
R110 S1  Institution of criminal action

Manila/Chartered City Outside of MM/CC
w PI - (4Y 2M 1d) OP  R112 S3 OP
- affidavit complaint
- dismiss / subpoena (10d)
- counter affidavit (10d)
- Prelim inves (10d)
- Reso w/ Information – if to file
- Reso only if to dismiss
No PI OP  R112 S3(a) OP / MTC
- affidavit complaint (direct filing)
- dismiss / file to court (10d)
No PI / SP OP  R112 S3(a) OP / MTC

- affidavit complaint
- dismiss / file to court (10d)
NASAM 2017 51
 Let’s take HOMICIDE as an example case; homicide committed in QC requires Prelim Inves
because the threshold is  4 years, 2 months a 1 day imprisonment; Homicide is Rec Temporal;
 Who conducts PI? R112 S2  since Oct 2005 Judges are not allowed to conduct PI anymore;
1) Prov or City Prosec

2) Nat’l and Regional State Prosec
3) Other ofcrs that may be authorized  ombudsman
 So, you file the case at the Office of the Prosec  the procedure shall be in R112 S 3
 Now, if your case is THEFT of a smaller value  PI not needed  Ofc of the Prosec
 If it does not require PI and falling under the rule on sum procedure 
R112 S3  cases requiring preliminary investigation
– Complaint Affidavit filed at Prosec Ofc / Fiscal
 duly sworn to before the public prosecutor or any public officer authorized to administer oath --
ONLY in the absence of the public prosecutor can one go to a notary public
 there should be a Certification at the bottom of the Complaint Affidavit
– Asst. Prosec shall either dismiss the case if he finds no ground or issue subpoena (10d)
– Counter affidavit (within 10 days) needs to be filed if the Prosec issued a subpoena
– PRELIMIMANRY INVESTIGATION (10d)

 Asst. Prosecutor shall recommend if case should be filed or dismissed - subject to City
Prosecutor’s approval
 If it should be dismissed  Prosec issues Resolution (this is equivalent to a Decision)

 If he resolves to file the case  Resolution with Information
 Paano kung pag padala ng subpoena ayaw namin sumagot? Kasi ayaw namin magpasakop? Para
walang jurisdiction;
 R112 S3(d)  having received a subpoena, even without submitting counter-affidavit, will lead to
a Resolution
R12 S3(a)  Cases not requiring preliminary investigation
– affidavit complaint filed at Prosec Ofc / Fiscal
– Asst Prosec shall either dismiss the case if he finds no ground or file the case
BP 22  under Summary Procedure  Resolution template  FILE / DISMISS -
Outside of MM/CC
 Requiring PI  OP
 Not requiring PI  OP or MTC
JURISDICTION OF THE COURTS
RTC  exceeding 6 years  all cases requires PI  cases subject to INQUEST is the only case not required
to undergo PI, such as Inflagrante, hot pursuit;
MTC  not exceeding 6 years to 4Y 2M 1d  requires PI
below 4Y 2M 1d exceeding 6 mos.  not requiring PI
6 mos and below  Summ Procedure not requiring PI
What if the penalty is purely a fine? - AM No. 09-94
in excess of P4k  RTC /
not exceeding P4k MeTC or MTC
NASAM 2017 52
Last paragraph of S1  PRESCRIPTION

When is prescriptive period interrupted
RPC ordinary offenses - upon its filing of the complaint with OP
Special Laws - upon its filing of the complaint with OP
Ordinances - upon filing of case in court
Case of Panagiton in relation to People vs Pangilinan

 Ingco vs Sandiganbayan  upon filing at Sandiganbayan = interrupted
 Brillante vs CA  libel case when Brillante wrote that Binay and Prudente plotted to kill Pres Cory  
 filing of the complaint at the OP interrupted the running of the prescriptive period
 Sanrio vs Lim  involves intellectual prop law violation  In the case of SEC vs Interport  the Court
ruled that investigation conducted by the SEC for violation of the Revised Security Act effectively
interrupts the running of the prescriptive period because it is equivalent to preliminary investigation
conducted by the DOJ;
2015 Case of Jaduel – the running of the prescriptive period is interrupted ONLY upon filing of the case in
court
Which court can issue a HOLD DEPARTURE ORDER?
 Bondejar vs Buban (2001)  only the RTC

 MDS Case  Sandiganbayan can issue a Hold Departure Order; it is an inherent power of Sandigan
JURISDICTION OF THE SANDIGANBAYAN
1) If the public officer falls under Salary Grade 27 and higher, and the act was committed in relation to the
office
There was an amendment to the law  offenses involving BRIBERY or violation of ANTI-GRAFT
 If amount is P1M = Sandigan
 if less than P1M = RTC (to unclog the dockets of Sandigan)
If salary grade is 27 and higher BUT the amount is below P1M = RTC
Amount is P80M (plunder), salary grade 22 = RTC
2) Ordinary Offenses = provided the crime is committed committed in relation to the office AND with
salary grade 27 = Sandiganbayan
3) Those who are not Salary Grade 27 BUT were included in the enumeration  example: a board member
/ sangguniang panglalawigan / counsilor  under Sandiganbayan’s jurisdiction;
4) Presidents, directors of trustees, or managers of GOCCs, state universities or educational institutions or

foundations  regardless of salary grade they fall within the juris of Sandiganbayan.
 Even if ONLY one is with salary grade 27  regardless if such one accused is a principal, accessory
or accomplice  regardless if there are private individuals involved  ALL will be within the
jurisdiction of the Sandiganabayan for as long as there is one with salary grade of 27.
 Illustration: Napoles  she is charged with several Senators

JURISDICTION OF THE UMBUDSMAN – Ombudsman is NOT a court; it is a quasi-judicial agency
1) Over misfeasance or malfeasance connected by a public officer  even if not in relation with his office
Ombudsman cases are complaints filed in or taken cognizance of by the Office of the Ombudsman
charging any public officer or employee, including those in the government-owned or controlled
corporations, with an act or omission alleged to be illegal, unjust, improper or inefficient.
NASAM 2017 53
Does the Office of the Ombudsman have jurisdiction to investigate private persons?
Yes, in all cases of conspiracy between an officer or employee of the government and a private person, the
Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and
proceed against such private person as the evidence may warrant. The officer or employee and the private
person shall be tried jointly and shall be subject to the same penalties and liabilities.
OMBUDSMAN OFFICE OF THE PROSECUTOR
– Prelim investigation – Prelim investigation

– Administrative investigation – Inquest proceeding*
– Prosecute – Prosecute (R110 S5)
– Conduct its own investigation
INQUEST  R112 S6  a determination of the Inquest Prosecutor on whether to detain or to release for
further preliminary investigation a person charged of an offense  for a WARRANTLESS ARREST;
R113  if you are arrested without warrant you will be brought to the nearest police station
 arrest will be booked
 then you will be brought to the inquest prosecutor, who will examine the record
 if fiscal says you will be detained  you will ask for bail (but this will take time until the Information is filed)
 so instead, you will ask for PI, thereby waiving Art. 125 (you need to waive Art. 125 because you are
detained without being charged, otherwise, madedemanda police)
Leviste vs Alameda – Can inquest be subject of an MR?
 The accelerated process of inquest owing to its summary nature, the attendant risk against Art. 125,
results to either prompt filing of Info or immediate release of the suspect  No MR allowed
 Cannot appeal to DOJ also; Appeal to the DOJ is available only after prelim investigation.
Once the Information is filed in court  it is now the duty of the office of the prosecutor to prosecute the
case for and in behalf of the people
“The prosecution of a criminal case is under the direct control,

direction, and supervision of a public prosecutor.”
A private prosecutor can proceed in prosecuting the case even with the absence of the public prosecutor
provided that he obtained a Certification from the Chief Prosecutor
If the trail court rendered an acquittal on the criminal aspect of the case without award on the civil aspect,
the private prosecutor can file an MR and eventually an appeal regarding the civil aspect of the case 
this time the supervision of the public prosecutor is not needed anymore.
R110 S6  INFORMATION SUFFICIENCY –
Information must allege the following:

1) Name of the accused, or any appellation or nickname
2) Facts and circumstances showing the commission of the offense
3) Qualifying and aggravating circumstances
4) Designation of the offense by statute OR a reference to a particular section
5) The cause of the accusation
6) In a language that is easily understood by the accused
7) Approximation of the date of the commission is sufficient (unless date is material element)
8) Place of commission – a simple showing that the court has juris is enough (unless material element)
9) Name of the victim – description of the property would suffice; once known will just be inserted
GR: Only one offense per information is allowed by law. R110 S13
XPN:
1) there is a single penalty for various offenses like in a COMPLEX CRIME; 2)
under R120 S3, where there was failure to object on the part of the accused.
NASAM 2017 54
RE JURISDICTION OVER THE CASE OF DELIMA

DOJ or Ombudsman  for preliminary investigation
RTC or Sandiganbayan  re jurisdiction over the case
Dept. of Justice vs Liwag  Ombudsman can conduct PI; DOJ can conduct PI;
 however, when it involves public officers  the Ombudsman has the primary jurisdiction;
 if it involves offenses under the RPC  Ombudsman has general jurisdiction
Preliminary Investigation is not a constitutional right, it is only a statutory right;
When DOJ conducted PI  they should have questioned it  even if they questioned jurisdiction, they
should have questioned the facts charged against me  because walang participation eh.
However, we were not able to read the Information; the Information might have packaged her as a
principal accused in a drug case, and under the law, RTC have an exclusive jurisdiction over drug
cases; It really depends on the Information e.
Sabi nila in relation to her office, the act could not have been committed  yun ang sabi mo. Pero ano ba
sabi ng Information? Pag naka-package sa Information ikaw ang pinuno ng business sa loob  hindi
yan in relation to your office  pinalabas engaged ka talaga sa drugs, nagkataon lang public officer ka
 kaya may jurisdiction RTC.
Once the Information is filed with RTC, the court can:
1. Dismiss the case;
2. Issue warrant of arrest w/in 10 days if it finds probable cause;
3. Conduct hearing to determine probable cause
Ano nangyari sa case ni Delima?  nag issue RTC ng warrant of arrest.
Delima’s team filed a Motion to Quash  which did not prevent the issuance of warrant of arrest.
Eh trabaho ng judge yun eh  once the judge finds probable cause he should issue warrant of
arrest within 10 days  R112 S5 di mo masisisi yung judge. This is Judicial determination of probable
cause
When the judge issues warrant of arrest upon finding of probable cause he is not obliged to explain why he
finds probable cause;  he is only obligated to explain once he dismisses the case when he finds no
probable cause.  Pag nauna issuance ng Warrant of Arrest  you can no longer question probable
cause.
 In fact, what a petitioner should do before the court issues warrant of arrest  he should file Motion to
Dismiss on the ground of absence of probable cause  para di maka issue ng warrant  para di nya
maset for arraignment.
 Eh wala silang sinabmit  kaya sabi ng judge: Eh wala kayong sinabmit eh ano babasahin ko.
R112 S5 – issuance of warrant 
RTC (Information) 1. Dismiss Bail is a matter of right Bail as a matter of discretion
R112 S5  2. Warrant of arrest before conviction, if the - after conviction and the
OP 3. Hearing – PC penalty is not death, life penalty is not death, life,
or rec perpetua rec perpetua
MTC (Information)
a) PI 1. Dismiss Bail is a matter of right - none of the circumstance
2. Warrant of arrest before or after conviction enumerated in S5 is
3. Hearing - PC present
b) NPI
1. Dismiss -
2. WA/Summon (R112 S8)
3. Hearing
c) NPI/SP NO warrant (Rules on SP)

MTC cannot issue warrant of arrest in summary proceedings  Notice only; Ex: BP22, Unjust Vexation
Arrest  provisional deprivation of liberty  take note of bail  R114 S4 S5 S6 S7 S8 
Non-bailable  penalty is death, life, rec perpetua  BUT could petition for bail, to convince the court that evidence of
guilt is not strong;
NASAM 2017 55
In the case of Leviste vs CA  non-bailable kasi murder  RTC released him kasi evid of guilt not strong
 after trial sabi ng RTC ay hindi murder, homicide lang  from non-bailable naging discretionary 
the bail should be applied not in the trial court but in the appellate court;
Kinds of Bail
1. Cash bond  total amount (R114 S10)
2. Surety bond  to pay the premium R114 S11
3. Property bond  accused may not be the owner of the prop; owner must be a resident R114 S14
4. Recognizance  R114 S15
When to file
1) In the court where that action is pending;
2) Before the RTC province/city/municipality where you were arrested;

Increase or Reduction of Bail
Case of Judge Maceda
 The accused is entitled to bail as a matter of right  but the judge does not want to allow  duda
nya tatakbo  judge was charged in court
 SC: you cannot deprived the accused of bail because bail is a matter of right; you may increase the
amount of bail it if you are worried that the accused is a flight risk Forfeiture vs Cancellation of
Bail
FORFEITURE CANCELLATION
- happens if the accused is absent during the hearing - could be automatic – if the case is dismissed, acquitted,
or he is convicted
- voluntary – if the accused surrenders or dies
What is a complaint?
A complaint is a sworn written statement charging a person with an offense, subscribed by the offended
party, any peace officer, or other public officer charged with the enforcement of the law violated.
What is an information?
An information is an accusation in writing charging a person with an offense, subscribed by the prosecutor
and filed with the court.
COMPLAINT INFORMATION
May be signed by the offended party, any peace officer, Always signed by prosecuting officer
or other public officer charged with the enforcement of
the law violated
Sworn to by the person signing it Need not be under oath since the prosecuting officer
filing it is already acting under his oath of office
May be filed either with the office of the prosecutor or Always filed with the court
with the court
A complaint or information is sufficient if it states:

1) the name of the accused
2) the designation of the offense given by the statute
3) the acts or omissions complained of as constituting the offense
4) the name of the offended party
5) the approximate date of the commission of the offense
6) the place of the commission of the offense
7) when the offense is committed by several persons, all of them should be included in the complaint
or Information
NASAM 2017 56
People vs Monticalvo (2013)

 Information must allege the fact of mental retardation; such the prosecution failed to do in this case,
hence, the court was only able to convict the accused od simple rape absent such aggravating
circumstance of mental retardation of the victim;
 The court cannot consider aggravating circumstance if it was not alleged; People vs Amistoso
 It is the RECITAL OF FACTS and not the designation of the offense that is controlling.
People vs Valdez - Sufficiency of Information
 Every element of the offense must be stated in the Information

Dr. Joel Mendez vs People – Amendments to Information
 Was charged with tax evasion  he is questioning the Information’s amendment  gusto isingit ng
prosecution “for the income earned”  ayaw ng defense
 SC:  It is a mere formal amendment; the added phrase mere states with additional precision
something that is already contained in the original Information and reflected in the income tax return;
 Prosecution also wanted to add “doing business under the name and style of Mendez Medical Group”
and addition of branches  SC said these are not substantial amendment because it just a description
of his business; and considering that it a sole proprietorship;
Change in the DATE of the commission of the crime  is just a formal amendment, UNLESS, such change
will change the gravity of the offense and might prejudice the right of the accused;
Comer vs People
 There was already a plea  the date may still be amended because it is not prejudicial to the rights of
the accused.
 Will it require a new plea?  NO.

Saludaga vs Sandiganbayan (2010)
FACTS: Saludaga and Genio entered into a Pakyaw Contract for the construction of Barangay Day Care
Centers without conducting a competitive public bidding as required by law, which caused damage and
prejudice to the government. An information was filed for violation of Sec. 3 (e) of RA 3019 by causing
undue injury to the Government. The information was quashed for failure to prove the actual damage, hence
a new information was filed, now for violation of Sec. 3 (e) of RA 3019 by giving unwarranted benefit to
a private person. The accused moved for a new preliminary investigation to be conducted on the ground that
there is substitution and/or substantial amendment of the first information.
ISSUE: Whether or not there is substitution and/or substantial amendment of the information that would
warrant an new preliminary investigation.
RULING: No, there is no substitution and/or substantial amendment. There are two (2) different modes of
committing the offense: either by causing undue injury or by giving private person unwarranted benefit.
That accused may be charged under either mode or under both. Hence a new preliminary investigation is
unnecessary.
 Now, assuming that there is substitution, is there a need for new PI, would it require a new PI?  YES.
R117 S8 PROVISIONAL DISMISSAL – (1) requires no ground; (2) can be filed at any time; (3) a
provisionally dismissed case can be revived before it is time barred.
Illustration: When prosecution expressed that the witness is not available until a certain period; the judge
then ask the accused if he agrees that the case be dismissed for the meantime; if accused agrees, the judge
will dismiss the case;
When can a case be provisionally dismissed?  A case can only be dismissed provisionally if the
accused expressly consents, and with notice to the offended party. Provisional dismissal does not place the
accused in double jeopardy. But, if the accused objects to the provisional dismissal, a revival of the
case would place him in double jeopardy.
NASAM 2017 57
Nung araw pag di na interesado ang prosecution  nasa archive lang ang kaso – now, provisional dismissal
can become permanent.
***When does the provisional dismissal become final?
The provisional dismissal of offenses shall become permanent
punishable by IMPRISONMENT NOT EXCEEDING 6 YEARS after 1 year without the case having been revived
punishable by IMPRISONMENT OF MORE THAN 6 YEARS after 2 years without the case having been revived.
THE TIME BAR  2 years and 1 year is counted from the time of issuance of the order (based on 20122013
Guidelines issued by SC pursuant to the provision of ROC  because a case could never be provisionally
dismissed if the prosecutor is not present); However, in 2014 a SC decision upholding the 2003 Lacson Case
ruling that the time bar should be counted from prosecutor’s receipt of the order;
Effective September 2017  SC guidelines on continuous trial  the 2 years and 1 year is counted from the
time of issuance of the order.
After the provisional dismissal becomes final, the accused cannot be prosecuted anymore.
 If provisionally dismissed case is to be revived, does it require new PI?  NO.
 Exception: when a new PI is required:

 if the witnesses recanted; or
 new witnesses emerged;
 other persons, other than those originally charged, are charged under the new complaint;
 under the new complaint the criminal liability of the accused is upgraded;
Can you file an MR in the OP? YES! (no provision in the law to this effect)  BUT the filing of an MR will not
stop the filing of an Information in court.
Can you file an MR in the Ombudsman? YES!  will not prevent the filing of Information before the
Sandigan.
Filing fees in the criminal cases: R111 S1(a)
1) NO FILING FEE  Actual damages 
2) WITH FILING FEE  Moral, Exemplary, Nominal and temporal award of damages
Are you required to pay filing fees for a BP22 case? YES for ALL YOUR CLAIMS R111 S1(b) Is there a
counterclaim, cross-claim, or a 3rd party complaint in a criminal case?  NO!
Do you need to reserve an independent civil action? NO.
Art 32,  fundamental rights and liberties
Art 33,  defamation, fraud, and physical injury
Art 34,  refusal or failure of the police officer to render aid or protection in case of danger to life or prop
Art 2176  quasi-delict
*the presence of the criminal case will not suspend the civil cases because they are independent civil action;
Basic Rule: once the criminal action is instituted the civil action is likewise instituted.
UNLESS it is  WAIVED, RESERVED, or INSTITUTED AHEAD of the criminal case
WAIVER – unilateral relinquishment of the civil aspect of the case
RESERVATION – has a timing; should be made at any time before the prosecution commences with the
presentation of evidence taking into consideration the circumstances of the case; only after the
termination of the criminal case can you proceed with the civil case;
INSTITUTED AHEAD – the very moment the criminal case is instituted, the civil case which was instituted
ahead of said crim case shall be suspended; BUT with an option to consolidate;
NASAM 2017 58
Can you reserve a civil case in a Writ of Amparo case?

Can you consolidate a Writ of Amparo with a criminal case?  YES (involving the same facts)
Can you consolidate a Writ of Amparo case with a civil case?  NO
Can you consolidate a Writ of Amparo case with an administrative case?  NO
If what was filed ahead is a petition for Writ of Amparo and there is a subsequent criminal case  it will be
consolidated;
If there is already a pending criminal case involving a fact subject of a Writ of Amparo, you will file the
petition for Writ of Amparo in the pending criminal case; PREJUDICIAL QUESTION – Requisites:
1) There are 2 pending cases

2) One criminal and one civil
3) The civil should have been instituted ahead of the criminal case
4) The criminal case is suspended – because the issue in the civil is determinative of the guilt or
innocence of the accused
Where to file a Motion to Suspend on the ground of a prejudicial question?  OP; in court before the final
presentation of evidence of the prosecution;
Jose vs Juarez
 There was a motion to suspend proceedings in a criminal case -- claiming that there was a civil
case involving unconscionable interest; Sabi suspend muna yang criminal (BP22) kasi kini-question
pa naming yung interest; the contention was – it was contra bonus mores;
 Should the BP22 case be suspended because of the need to determine whether or not the interest
was unconscionable?
 SC held: No, it was not a prejudicial question.

San Miguel Prop vs Perez (2013): Prejudicial Question
 One case is an administrative case, while the other is a criminal case;
 Involves a purchase of properties of San Miguel from BF Homes; BF Homes was under receivership;
when San Miguel has finished payment for the 20 or so properties they demanded for the titles;
Sabi ng BF Homes di nila madeliver kasi iba na receiver nila; so, they sued BF Homes at HLURB for
unsound practices; Then, they also sued them, for failure to deliver title to them, for estafa;
 In this case, the estafa case was dismissed  the Court said that the issue on WON the title could
be issued on the question of who the authorized receiver should be is a prejudicial question, hence,
the criminal case was dismissed;
Concing vs People
 Maraming kaso to; sa ibat ibang lagar; Yun sa Makati is a case that involves FRAUD;
 yung mag-ina pumasok ng benatahn with Uni Capital; these mag-ina hindi naman pala may-ari ng
lupa; So, dinemanda sila for damages by reason of fraud under Art. 33;
 here, they were claiming that there is a prejudicial question – kasi may kaso sa Makati yun nagang
fraud, tapos may kaso pa sa Pasig that involved the question of injunctive relief particularly on the
matter of agency; kasi dine-deny nung anak; sabi nya—nirepresent nya lang daw Nanay nya; And
now there is a criminal case which is Estafa;
 Is the independent civil action for fraud under Art 33 pending in Makati and that of the injuctive
relief in Pasig  are the issues therein prejudicial questions?
 The Court said  the determination of the issue involved in the injunctive relief is irrelevant to the
guilt or innocence of the respondent in the criminal case for estafa; so, there is no reason to
suspend on the ground of a prejudicial question;
 An independent civil action under Art. 33 would not operate as a prejudicial question that would
justify the suspension of the criminal case;
NASAM 2017 59
ACQUITTAL
Lumantas vs Kalapis
 TWO KINDS OF ACQUITTAL – with different effects on civil liability of the accused
Acquittal based on the merits—the accused Acquittal based on reasonable doubt
is not the author of the crime complaint of
- closes the door to civil liability  for a - he is not exempt from civil liability because such civil liability
person proven to be not the perpetrator can still be established by preponderance of evidence
could never be held liable for such an act
- civil liabilities cannot be prevented, unless the court finds that
or omission
the act or omission from which the civil liability might arise
does not exist
If the judgment is of acquittal, the decision shall state:
1) whether the evidence of the prosecution absolutely failed to prove the guilt of the accused OR
merely failed to prove it beyond reasonable doubt; AND
2) if the act or omission from which the civil liability might arise did not exist.
The court reminds that the acquittal for insufficiency of evidence did not require that the complainant’s
recovery of civil liability should be through an institution of a separate civil action;
If the court says that the evidence is insufficient, and there is no civil liability, BUT you insist that there
should be civil liability  your remedy should be  ti file an MR or to appeal  the civil aspect of the case.
ARREST (R113)
Can the question of admissibility of evidence be raised for the first time on appeal?  NO!
Pestilos vs Atty. Generoso (2014) – R113 S5
 Atty Generoso was mauled by several men and called the assistance of the police; When the police
arrived he then pointed to the petitioners as those who mauled him. This prompted the police officers to
"invite" the petitioners to go to the police station;
 The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever issued;
they went to the police station only as a response to the arresting officers' invitation.
 The petitioners also claim that no valid warrantless arrest took place under the terms of the ROC. The
incident happened two (2) hours before the police officers actually arrived at the crime scene. The
police officers could not have undertaken a valid warrantless arrest as they had no personal knowledge
that the petitioners were the authors of the crime.
 The elements under Section 5(b), Rule 113 are:
1) an offense has just been committed; and
2) the arresting officer has probable cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it.
 In People v. Tonog, Jr., the warrantless arrest which was done on the same day was held valid. In this
case, the arresting officer had knowledge of facts which he personally gathered in the course of his
investigation, indicating that the accused was one of the perpetrators.
 In People v. Gerente, the policemen arrested Gerente only about 3 hours after Gerente and his
companions had killed the victim. The Court held that the policemen had personal knowledge of the
violent death of the victim and of facts indicating that Gerente and two others had killed him. The
warrantless arrest was held valid.
 In People v. Alvario, the warrantless arrest came immediately after the arresting officers received
information from the victim of the crime. The Court held that the personal knowledge of the arresting
officers was derived from the information supplied by the victim herself who pointed to Alvario as the
man who raped her at the time of his arrest. The Court upheld the warrantless arrest.
NASAM 2017 60
 In People v. Jayson, there was a shooting incident. The policemen who were summoned to the scene of
the crime found the victim. The informants pointed to the accused as the assailant only moments after
the shooting. The Court held that the arresting officers acted on the basis of personal knowledge of the
death of the victim and of facts indicating that the accused was the assailant. Thus, the warrantless
arrest was held valid.
 In People v. Acol, a group held up the passengers in a jeepney and the policemen immediately
responded to the report of the crime. One of the victims saw four persons walking towards Fort
Bonifacio, one of whom was wearing his jacket. The victim pointed them to the policemen. When the
group saw the policemen coming, they ran in different directions. The Court held that the arrest was
valid.
 In Cadua v. CA, there was an initial report to the police concerning a robbery. A radio dispatch was then
given to the arresting officers, who proceeded to Alden Street to verify the authenticity of the radio
message. When they reached the place, they met with the complainants who initiated the report about
the robbery. Upon the officers' invitation, the victims joined them in conducting a search of the nearby
area where the accused was spotted in the vicinity. Based on the reported statements of the
complainants, he was identified as a logical suspect in the offense just committed. Hence, the arrest
was held valid.
 In Doria, the Court held that Section 5(b), Rule 113 of the 1985 Rules of Criminal Procedure does not
require the arresting officers to personally witness the commission of the offense.
 Based on these discussions, it appears that the Court's appreciation of the elements that "the offense
has just been committed" and ''personal knowledge of facts and circumstances that the
person to be arrested committed it" depended on the particular circumstances of the case.
 In this case, the arresting officers went to the scene of the crime upon the complaint of Atty.
Generoso of his alleged mauling; the police officers responded to the scene of the crime less than one
(1) hour after the alleged mauling; the alleged crime transpired in a community where Atty. Generoso
and the petitioners reside; Atty. Generoso positively identified the petitioners as those responsible for
his mauling and, notably, the petitioners and Atty. Generoso86 lived almost in the same neighborhood;
more importantly, when the petitioners were confronted by the arresting officers, they did not deny
their participation in the incident with Atty. Generoso, although they narrated a different version of
what transpired.
 With these facts and circumstances that the police officers gathered and which they have personally
observed less than one hour from the time that they have arrived at the scene of the crime until the
time of the arrest of the petitioners, we deem it reasonable to conclude that the police officers had
personal knowledge of facts or circumstances justifying the petitioners' warrantless arrests. These
circumstances were well within the police officers' observation, perception and evaluation at the time of
the arrest. These circumstances qualify as the police officers' personal observation, which are within
their personal knowledge, prompting them to make the warrantless arrests.
---0---
Lee vs KBC Bank – the independent personal assessment of the judge is necessary
 IN this case the judge immediately granted the motion to withdraw information;
 the SC ruled that the judge was wrong  the judge cannot simply adopt the finding of the DOJ;
the court should conduct an independent personal determination before dismissing the case;
Soriano vs People
 The BSP conducts its own investigation re closing banks; here Soriano, owner of several rural
banks, said that the letter of BSP for purpose instituting a complaint is defective pursuant to the
ROC;
 SC  it is not the letter, it is the attached affidavit to the letter that shows that it complies with
the requirement of the rule; the minimum requirement of the rule is that there are affidavits of
witnesses who will support the claim that there was criminal violation;
NASAM 2017 61
R115  RIGHTS OF THE ACCUSED

Jinggoy Estrada vs Bersamin (2015) –
- denial of request of copies of co-respondents’ counter affidavits
 Sen Jinggoy’s complaints: wants copies of the Counter Affidavits of each of his co-respondents;
and that because he is denied copy of those affidavits, his right to due process was violated; 
SC distinguished:
1) Preliminary investigation  all that is to be determined is probable cause; in fact, even
hearsay could be considered for the determination of probable cause; if there is a sufficient
basis to arrive at a conclusion, pwede.
2) Administrative due process  adjudication on the merits yun kaya kailangan talaga i-
satisfy mo yung requirements of due process; because that is a full determination of the
case;
 Now, considering you are only under preliminary investigation there is no such requirements; Can
the illegality of the arrest be raised? Or absence of prelim investigation?
- yes, at any time before plea
What is public trial? – the proceedings is open to the public
 Under the rules on criminal procedure  the public could be excluded if the testimony will be
offensive to morals or scandalous; Ex. Rape cases
 Public trial, pure and simple, means open to the public; our rules do not not contemplate viewing
on TV as it happens, hearing it on radio as it happens;
 There efforts in the past to call for a simulcast viewing; it started in the Louie Beltran case; then
during the Sandiganbayan case of Pres. Estrada, public viewing was suggested BUT the SC did not
allow because it could give opportunity for lawyers to grandstand; and the opinion of the public
may affect the justices;
 There was a Motion for Recon, the SC granted the motion on certain limitations  that it will only
be for historical and educational purposes;
 Recently, in the Ampatuan’s case, they requested for a live streaming  the SC granted in pro hac
vice (for that particular purpose only)  pro hac vice means it cannot be used as a doctrinal
pronouncement;
Can a TESTIMONY in another judicial proceeding be used in a criminal case? YES, w/r judicial or
administrative; provided that there is an opportunity to cross examine and it involves the same parties
and the same subject matter;
Is the appearance of the accused waivable during trial? YES, if it is stipulated in the conditions of
bail R115 S1(c); except that the court can request his appearance for purposes of identification; Is
the accused entitled to a counsel?
RULE: the accused is entitled to a counsel de parte (a counsel of
choice); If he cannot afford one the court shall assign a counsel de
officio:
1) For purposes of arraignment;

2) For the entire proceeding (rarely done recently because of the presence of PAO)
R124 - the CA can appoint a counsel de officio

_____ - the SC can appoint a counsel de officio
NASAM 2017 62
R116  ARRAIGNMENT & PLEA

S5  Improvident Plea of Guilty  the consequences of it is not known to the accused; can be
withdrawn at any time before judgment becomes final; mostly in cases involving death penalty; 2
Basic Rules provided by jurisprudence:
1) If the sole basis of the trial court’s conviction is improvident plea, and it reaches the SC, the SC will
remand the case; kasi walang ibang ebidensya eh;
2) If the accused is convicted not only because of an improvident plea but there is an independent
evidence that will establish that the accused is indeed guilty, the SC will not remand the case  it
will render a judgment;
S2  Plea of guilt to a lesser offense  in plea bargaining  there is no need to amend the
Information;
 Until what time can you plead guilty to a lesser offense?  at any time before trial;
1) During arraignment  for as long as the adverse party is notified;

2) After arraignment before trial
3) During pre-trial in a plea bargaining
 What about if the offended party did not appear even if he was duly notified?  can there
be a plea bargaining?  YES, for as long as the offended party is duly notified and the public
prosecutor is present;
 Is an offended party required to be present during arraignment?

GR: No.
XPN: (1) required by the judge for the civil aspect; (2) there is plea of guilt for a lesser offense.
S4  plea of guilt to a non-capital offense 

 No more hearing  it is only necessary to determine the exact penaly of the offense, but it is not
mandatory;
S3  plea of guilt to a capital offense 
 The judge should conduct a searching inquiry
 Jurisprudence provides that conduct of searching inquiry means that the judge need to ascertain:
1) The conduct of the custodial investigation  whether the accused was represented by
counsel; whether he made an admission; and whether the admission was made in the
presence of a counsel;
2) The conduct of preliminary investigation  whether he was represented by counsel, and

whether he presented contrary evidence to oppose the complaint against him;
3) The background of the accused  educational attainment, character and the fact that he had
other previous cases;
PLUS, the judge will have to explain the nature of the offense and the consequences of the plea
of guilt;
 Is a trial mandatory? YES!  to examine the exact culpability of the accused;

What is a CONDITIONAL PLEA?
 Is a plea that does not make a categorical statement that he pleads not guilty
 Example: When the Information was read to him  akusado nag-kibit balikat lang; the lawyer said
that the accused does not want to enter a plea; the judge said the lawyer should have manifested
that the accused does not want to enter a plea; because if the accused does not want to enter a
plea the court will enter a plea of NOT GUILTY for the accused;
 A qualified plea is a plea of not guilty; the court will enter a plea of not guilty;
NASAM 2017 63
CONDITIONAL ARRAIGNMENT  not in the rules of court; Sandiganbayan uses this -
 R114 S23  When the accused is out on bail he cannot depart from Phils without informing the court;
 if he does, he can be re-arrested even without a warrant
BILL OF PARTICULARS
Enrile’s Plunder Case
 The Office of the Ombudsman filed an Information for plunder against Enrile, Jessica Lucila Reyes,
Janet Lim Napoles, Ronald John Lim, and John Raymund de Asis before the Sandiganbayan.
In his petition, Enrile wants the following matters to be clarified:
* Who among the accused acquired the alleged ill-gotten wealth worth P172 million?
* What are the particular overt acts they have committed to constitute the “combination”?
* What are the particular overt acts which constitute the “series”? The Information stated that “by
repeatedly receiving from Napoles and/or her representatives kickbacks, commissions before,
during and/or after the project identification, Napoles gave Enrile and/or Reyes received, a
percentage of the cost of a project to be funded from Enrile’s PDAF’…”
* What was ‘repeatedly’ received? If amounts of money, the amount and if on several occasions,
state the date, amount and place where it was given; Name of the specific person who delivered,
who received the amount and how much;
* The circumstances during, before and/or after the project identification, name and nature of the
project and where was it located;
* In describing the said projects as fictitious, what is the basis?
* How Enrile took advantage of his position and why?”
 Enrile said the Sandiganbayan’s act of denying his motion for bill of particulars “is a denial of due
process and a serious violation of petitioner’s constitutional right to be informed of the nature and
cause of the accusation against him. This is certainly grave abuse of discretion.”
 The SC partially granted the motion for bill of particulars;
 Sufficiency of Information (R110 S6)  The Revised Rules of Criminal Procedure specifically
require certain matters to be stated in the Information for its sufficiency. The requirement aims to
enable the accused to properly prepare for his defense since he is presumed to have no
independent knowledge of the facts constituting the offense charged.
 To be considered as sufficient and valid, an information must state the name of the accused; the
designation of the offense given by the statute; the acts or omissions constituting the offense; the
name of the offended party; the approximate date of the commission of the offense; and the place
where the offense was committed
NASAM 2017 64
 In general, a bill of particulars is the further specification of the charges or claims in an

action, which an accused may avail of by motion before arraignment, to enable him to
properly plead and prepare for trial.
 In criminal cases, a bill of particulars details items or specific conduct not recited in the Information
but nonetheless pertain to or are included in the crime charged. Its purpose is to enable an
accused: to know the theory of the government’s case; to prepare his defense and to avoid surprise
at the trial; to plead his acquittal or conviction in bar of another prosecution for the same offense;
and to compel the prosecution to observe certain limitations in offering evidence. (R116 S9)
In civil proceedings, a bill of particulars has been defined as a complementary procedural document
consisting of an amplification or more particularized outline of a pleading, and is in the nature of a
more specific allegation of the facts recited in the pleading. The purpose of a motion for bill of
particulars in civil cases is to enable a party to prepare his responsive pleading properly.
The Distinctive Role of a Bill of Particulars
The purpose of a bill of particulars is to supply vague facts or allegations in the complaint or information to
enable the accused to properly plead and prepare for trial. It presupposes a valid Information, one
that presents all the elements of the crime charged, albeit under vague terms. Notably, the
specifications that a bill of particulars may supply are only formal amendments to the complaint or
Information.
Although the application for the bill of particulars is one addressed to the sound discretion of the court it
should nonetheless exercise its discretion within the context of the facts and the nature of the crime
charged in each case and the right of the accused to be informed of the nature and cause of
accusation against him.
Thus, if the Information is lacking, a court should take a liberal attitude towards its granting and order the
government to file a bill of particulars elaborating on the charges. Doubts should be resolved in favor
of granting the bill to give full meaning to the accused’s Constitutionally guaranteed rights.
Notably, the government cannot put the accused in the position of disclosing certain overt acts through the
Information and withholding others subsequently discovered, all of which it intends to prove at the trial.
This is the type of surprise a bill of particulars is designed to avoid. The accused is entitled to the
observance of all the rules designated to bring about a fair verdict.
This becomes more relevant in the present case where the crime charged carries with it the
severe penalty of capital punishment and entails the commission of several predicate criminal
acts involving a great number of transactions spread over a considerable period of time.
Motion to Quash vs. Motion for Bill of Particulars
A bill of particulars presupposes a valid Information while a motion to quash is a jurisdictional defect on
account that the facts charged in the Information does not constitute an offense.
If the information does not charge an offense, then a motion to quash is in order.
But if the information charges an offense and the averments are so vague that the accused
cannot prepare to plead or prepare for trial, then a motion for a bill of particulars is the proper
remedy.
Thus viewed, a motion to quash and a motion for a bill of particulars are distinct and separate remedies,
the latter presupposing an information sufficient in law to charge an offense.
NASAM 2017 65
Can arraignment be suspended? YES,

1) if the accused of unsound mind  cannot enter plea
2) there is prejudicial question
How about MR only?  tuloy ang arraignment! An MR would not stop the arraignment.
How about a Petition for Review?
 In court, the arraignment is suspended if there’s a petition for review with the DOJ
 In SB, the remedy from an Ombudsman resolution is different from that of a resolution from an
office of the prosecutor.
• OMB  Admin finding  verdict: suspended for 2 years  remedy: R43 to the CA
• OMB  Crim finding probable cause filed the information to SB  remedy: R65 to the SC
Reprimand; Executory Your remedy is

censure;  not appealable R65  to CA
suspension for not more than 1 month;
forfeiture of one-month salary
Re Jun-jun Binay’s Case  here there is some sort of a deviation

 Wherein he was dismissed  perpetual disqualification  being administrative  the proper remedy
should have been a R43 to CA (Admin yun eh)  however in the case of Binay they used R65
 They said that it was an interlocutory order, so they went to CA on R65
 If it was a preventive suspension, it is indeed an interlocutory order;
 However, if it is a final dismissal it should be a R43 Petition for Review
 This case is unusual  this was even questioned by the Ombudsman  sabi wrong remedy  sabi ng
Ombudsman the only remedy to question acts of the Ombudsman is to the SC;
 Here the SC relaxed the Rule  sabi ni SC, it is not only the SC who can set aside the findings of the
Ombudsman.
MOTION TO QUASH – R117
When filed  at any time before plea
Forms & contents 
1. It must be in writing;
2. It must be signed by the accused or his counsel;
3. It must specify its factual and legal grounds.
Quashal v. Provisional Dismissal
a. Motion to Quash
A motion to quash is the mode by which an accused assails, before entering his plea, the validity of the criminal
complaint or the criminal information filed against him for insufficiency on its face in point of law, or for defect apparent
on the face of the Information. The motion, as a rule, hypothetically admits the truth of the facts spelled out in the
complaint or information. The rules governing a motion to quash are found under Rule 117.
Section 3 of this Rule enumerates the grounds for the quashal of a complaint or information, as follows:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against him was
dismissed or otherwise terminated without his express consent.
NASAM 2017 66
b. Provisional Dismissal
A case is provisionally dismissed if the following requirements concur:
1) the prosecution with the express conformity of the accused, or the accused, moves for a provisional dismissal (sin
perjuicio) of his case; or both the prosecution and the accused move for its provisional dismissal;
2) the offended party is notified of the motion for a provisional dismissal of the case;
3) the court issues an order granting the motion and dismissing the case provisionally; and
4) the public prosecutor is served with a copy of the order of provisional dismissal of the case.[20]
DISMISSAL BASED ON MOTION TO PROVISIONAL DISMISSAL R117

QUASH  R117 S8
1. Who may file. filed by the accused at the instance of either the prosecution or the
accused, or both.
2. Form and shall be in writing, signed by the accused or requirements do not apply
content his counsel and shall distinctly specify its
factual and legal grounds. (S2, R117)
3. Grounds grounds are specified under S3, R117 S8, R117 does not state the grounds
A necessary consequence is that where the Conversely, where a ground does not appear
grounds cited are those listed under S3, then under S3, then a motion to quash is not a
the appropriate remedy is to file a motion to proper remedy. A motion for provisional
quash, not any other remedy. dismissal may then apply if the conditions
required by S8 obtain.
A motion to quash assails the validity of the
criminal complaint or the criminal information a provisional dismissal may be grounded on
for defects or defenses apparent on face of the reasons other than the defects found in the
information; information
4. When allowed A motion to quash is allowed before the there may be a provisional dismissal of the case
arraignment  S1 R117 even when the trial proper of the case is already
underway provided that the required consents
are present.
5. Effect of An order sustaining the motion to quash is not A provisional dismissal is, by its own terms,
sustaining a bar to another prosecution for the same impermanent until the time-bar applies, at
offense UNLESS the motion was based on which time it becomes a permanent dismissal.
the grounds specified in section 3 (g) and (i)
of R117 (criminal action or liability has been In a provisional dismissal, there can be no
extinguished and double jeopardy). refiling after the time-bar, and prescription is
not an immediate consideration.
In contrast, an information that is quashed
stays quashed until revived; the grant of a A dismissal under S8 i.e., one with the express
motion to quash does not per se carry any consent of the accused is not intended to lead
connotation of impermanence, and becomes to double jeopardy as provided under S7, but
so only as provided by law or by the Rules. nevertheless creates a bar to further
prosecution under the special terms of S8.
In re-filing the case, what is important is the
question of whether the action can still be
brought, i.e., whether the prescription of
action or of the offense has set in.
-time bar rule does not apply - time bar rule applies
(Los Baños vs. Pedro, G.R. No. 173588, April 22, 2009)
 To recapitulate, quashal and provisional dismissal are different concepts whose respective rules refer to
different situations that should not be confused with one another.
 If the problem relates to an intrinsic or extrinsic deficiency of the complaint or information, as

shown on its face, the remedy is a motion to quash under the terms of Section 3, Rule 117.
 All other reasons for seeking the dismissal of the complaint or information, before arraignment and
under the circumstances outlined in Section 8, fall under provisional dismissal.
NASAM 2017 67
R117 S8– PROVISIONAL DISMISSAL  those that are temporary in character (i.e., to dismissals that are
without prejudice to the re-filing of the case). (Los Baños vs. Pedro, G.R. No. 173588, April 22, 2009)
What are the requisites in order that a case may be provisionally dismissed?
1) consent of the prosecutor
2) consent of the accused
3) notice to the offended party
How is the express consent of the accused given?
1) Express consent to a provisional dismissal is given either viva voce or in writing. It is a positive, direct,
unequivocal consent requiring no inference or implication to supply its meaning.
2) A motion of the accused for a provisional dismissal of a case is an express consent to such provisional
dismissal. (People vs. Lacson, G.R. No. 149453, April 1, 2003)
Does mere inaction or silence of the accused to a motion for a provisional dismissal of the case or
his failure to object to a provisional dismissal amount to express consent?
No. The mere inaction or silence of the accused to a motion for a provisional dismissal of the case or his
failure to object to a provisional dismissal does not amount to express consent. (People vs. Lacson)
Why is the consent of the accused required for the provisional dismissal of his case?
The raison d’ etre for the requirement of the express consent of the accused to a provisional dismissal of a
criminal case is to bar him from subsequently asserting that the revival of the criminal case will place him in
double jeopardy for the same offense or for an offense necessarily included therein. (People vs. Lacson)
When does the provisional dismissal become permanent?

1.) MTC Cases - The provisional dismissal of offenses punishable by imprisonment not exceeding six (6) years or a fine of
any amount, or both, shall become permanent one (1) year after issuance of the order without the case having been
revived.
2.) RTC Cases - With respect to offenses punishable by imprisonment of more than six (6) years, their provisional dismissal
shall become permanent two (2) years after issuance of the order without the case having been revived. (S8, R117)
What are the conditions sine qua non to the application of the time-bar rule?
1. the prosecution with the express conformity of the accused or the accused moves for a provisional (sin perjuicio)
dismissal of the case; or both the prosecution and the accused move for a provisional dismissal of the case;
2. the offended party is notified of the motion for a provisional dismissal of the case;
3. the court issues an order granting the motion and dismissing the case provisionally;
4. the public prosecutor is served with a copy of the order of provisional dismissal of the case.
How may the State revive the case?

The State may revive the case within the time-bar either by: (People vs. Lacson)
1. Refiling of the Information or
2. Filing of a new Information for the same offense or an offense necessarily included therein.
Is there a need for a new preliminary investigation in case of revival?

No. There would be no need of a new preliminary investigation if the State revive the case within the time-
bar. (People vs. Lacson)
What are some of the instances when a new preliminary investigation is needed in case of revival?
1) In case wherein after the provisional dismissal of the criminal case, the original witnesses of the prosecution or some
of them may have recanted their testimonies or may have died or may no longer be available and new witnesses for
the State have emerged.
2) If aside from the original accused, other persons are charged under a new criminal complaint for the same offense or
necessarily included therein
3) If under a new criminal complaint, the criminal liability of the accused is upgraded from that of an accessory to that
of a principal
4) If under a new criminal complaint, the charge has been upgraded. (People vs. Lacson)
NASAM 2017 68
The consequences of a meritorious motion to quash  answers the question of whether the
quashal of an information can be treated as a provisional dismissal.
Sections 4, 5, 6, and 7 of Rule 117 unmistakably provide for the consequences of a meritorious motion to
quash.
S4 speaks of an amendment of the complaint or information, if the motion to quash relates to a defect
curable by amendment.
S5 dwells on the effect of sustaining the motion to quash - the complaint or information may be re-filed,
except for the instances mentioned under
S6. The latter section, on the other hand, specifies the limit of the re-filing that Section 5 allows it cannot
be done where the dismissal is based on extinction of criminal liability or double jeopardy.
S7 defines double jeopardy and complements the ground provided under Section 3(i) and the exception
stated in Section 6.
S8 simply states when a provisional dismissal can be made, i.e., when the accused expressly consents
and the offended party is given notice. The consent of the accused to a dismissal relates directly to
what Section 3(i) and Section 7 provide, i.e., the conditions for dismissals that lead to double jeopardy.
This immediately suggests that a dismissal under S8 i.e., one with the express consent of the accused is
not intended to lead to double jeopardy as provided under S7, but nevertheless creates a bar
to further prosecution under the special terms of S8.
This with Section 6 which provides for the effects of sustaining a motion to quash the dismissal is not a
bar to another prosecution for the same offense unless the basis for the dismissal is the
extinction of criminal liability and double jeopardy.
These unique terms, read in relation with Sec 3(i) and 7 and compared with the consequences of Sec 8,
carry unavoidable implications that cannot but lead to distinctions between a quashal and a provisional
dismissal under Sec 8. They stress in no uncertain terms that, save only for what has been provided
under S4 and 5, the governing rule when a motion to quash is meritorious are the terms of Sec 6.
The failure of the Rules to state under Section 6 that a Section 8 provisional dismissal is a bar to further
prosecution shows that the framers did not intend a dismissal based on a motion to quash and a
provisional dismissal to be confused with one another;
S8 operates in a world of its own separate from motion to quash, and merely provides a time-bar that
uniquely applies to dismissals other than those grounded on Section 3.
Conversely, when a dismissal is pursuant to a motion to quash under S3, S8 and its time-bar does not
apply.
What if the ground for motion to quash is that Information does not constitute an offense?
Should it be dismissed immediately?
No, the court will require the prosecution to amend the Information only on a reasonable period of
time. If you fail to amend the Information on the given period, only then will the court quash the
Information.
Can a motion to quash be filed after a plea has been entered?
Gen Rule: NO
XPNs:
1) It does not constitute an offense (defective Information)
2) Lack of jurisdiction over the offense
3) Prescription
4) Double jeopardy
*this is the equivalent of non-waivable defenses (R9 S1) of Civil Procedure
NASAM 2017 69
PRE-TRIAL (R118) *** baka lumabas to sa bar***
Illustration:
Court:
A PT
PC Mediation – for certain cases

R130 S27  an offer of compromise
is an implied admission of
liability in criminal proceedings
- stipulations JDR Rules  Mediatable cases
- admissions 1. BP22
- marking of docs 2. Libel
- naming of witnesses 3. Criminal negligence
before the clerk of court 4. Estafa
5. Defamation
6. Theft
*settled are the civil aspects only
Criminal liability is NOT mediatable.

Why it seems acceptable in actual practice? May affidavit of desistance pa nga eh.
 Only the civil aspect is amicably settled; however, it is but natural that the complainant would not be
interested to pursue the criminal aspect of the case once he got remunerated already;
 The affidavit of desistance does not contain such disinterest or withdrawal  what they usually write
there is that there’s some mistake to the effect as to break the element of the crime;
 Now, the complainant/offended party, the one who prepared the affidavit of desistance will be required
by the judge to sit on the stand; will be asked by the judge to attest to the contents of the same;
 Once the judge is convinced of the voluntariness of the affidavit, the Prosecutor will move for the
dismissal of the case;
 You have to make sure that the accused has entered a plea  so that double jeopardy will attach;
 May arraignment, may plea, may affidavit of desistance, may dismissal w/o express consent of
the accused  double jeopardy yun!
Admissions by the accused MUST be:

1) In writing
2) Signed by the accused & counsel
Effect of Non-appearance
 if the accused  court will issue warrant of arrest / with option of forfeiting the bail
 if the offended party  ok lang; because he is just a witness for the state; (complaining witness)
 if the lawyers are absent  no effect; re-set; could be sanctioned by the court
SPEEDY TRAIL & SPEEDY DISPOSITION OF CASES
Speedy trial is the right of the accused under R115; and in R119 S9
R116 S1(g)  arraignment should take place within a period of 30 days from the time the court
acquired jurisdiction
R118 S1  pre-trial should take place within 30 days after the court had acquired jurisdiction BUT
after arraignment
R119 S6  trial = 80 days from arraignment
 judgment = 180 days from start of trial
NASAM 2017 70
Arrest Arraignment PT Trial Judgment
30 days
30 days
80 days 180 days

= 30 days + 80 days + 180 days = 290 days
Less than one year lang pala, pero bakit tumatagal ang mag kaso?  because of EXCLUSIONS  S3 R119
Example:
 Nagkaroon ka ng certiorari in one case decided by the court
 the pre-trial proceeded only after 6 years
 it will not be dismissed on the ground of speedy trial because it is an extraordinary remedy
In criminal cases, you don’t call it postponement  you call it continuance

What are the ground for continuance? R119 S4:
1. that the case is novel, unusual and complex, and that would require further time to study;
2. that failure to grant a continuance would result in a miscarriage of justice.
SPEEDY DISPOSITION  not limited to judicial proceedings;
 it covers judicial, quasi-judicial and administrative case;
 it is found in the Constitution;
 it can be invoked at any time for as long as the action is pending;
 it can be invoked for as long as there is vexatious, capricious, oppressive delays;
Whether it is SPEEDY TRIAL or SPEEDY DISPOSITION, if the court grants the motion of the accused it has the
effect of an ACQUITTAL.
What is your remedy if the person is detained and he files violation to the speedy disposition of cases?
 if he is continuously detained and he invokes the right to speedy disposition of case, his remedy is
HABEAS CORPUS.
 if your petition for speedy disposition of trial is denied, your remedy is CERTIORARI.
ORDER OF PRESENTATION OF EVIDENCE
1) The prosecution shall present evidence to prove the charge and, in the proper case, the civil liability.
2) The accused may present evidence to prove his defense and damages, if any, arising, from the
issuance of a provisional remedy in the case.
3) The prosecution and the defense may, in that order, present rebuttal and sur-rebuttal evidence
unless the court, in furtherance of justice, permits them to present additional evidence bearing 4)
upon the main issue.
5) Upon admission of evidence of the parties, the case shall be deemed submitted for decision
unless the court directs them to argue orally or to submit written memoranda.
6) When the accused admits the act or omission charged in the complaint or information but
interposes a lawful defense, the order of trial may be modified.
WHAT IS A REVERSE TRIAL?
> When the accused admits the killing but claims self-defense
> The accused must first establish the elements of self-defense in order to overturn the
presumption that he was guilty of the offense
NASAM 2017 71
DISCHARGE OF AN ACCUSED AS A STATE WITNESS

1. Who is a state witness?
A person charged with the commission of a crime but who is discharged with his consent so that he/she may
be a witness for the State.
2. Who applies for the discharge of the state witness, and where is the application submitted?
The prosecution submits to the court a motion for the discharge of the state witness.
RA 6981 (the Witness Protection, Security and Benefit Act) also states that the DOJ can "petition the Court
for the accused's discharge in order that he can be utilized as State Witness."
The court will direct the discharge of the accused after all requirements are met.
3. What are the requirements in order for an accused to be discharged as a state witness?
Section 9, Rule 119 of the Rules of Court provides for the following requirements:
1) There is absolute necessity for the testimony of the accused.

2) There is no other direct evidence available for the proper prosecution of the offense committed, apart
from the testimony of the accused.
3) The testimony of the accused can be substantially corroborated in its material points.
4) The accused does not appear to be the most guilty.
5) The accused hasn't been convicted of any offense involving moral turpitude.
4. What is the procedure for discharging a person as a state witness?
The prosecution should file a motion to discharge the accused as state witness with his consent.
The court will require the prosecution to present evidence and the sworn statement of the proposed state
witness.
If the court is satisfied, it will discharge the state witness. But if the court denies the motion for discharge,
the State can file a petition for certiorari.
5. What are the effects of the discharge?
• Evidence in support of the discharge shall automatically form part of the trial (unless the court denies the
motion to discharge).
• The discharge is equivalent to an acquittal, unless the witness fails or refuses to testify later on.
6. How can a state witness be admitted to the Witness Protection, Security and Benefits Program?
While the application as state witness is the domain of the court, the application for admission in the
program is filed to and approved by DOJ.
An application form may be obtained from the Witness Protection Security and Benefit Program Secretariat
(at the DOJ building in Padre Faura, Manila) or from any Regional State Prosecutor.
7. What are the requirements in order for a state witness to be admitted in the program?
RA 6981 states the same requirements listed Section 9, Rule 119 of the Rules of Court (see #3 above), but
adds another requirement:
-- The offense in which the accused testimony will be used is a grave felony as defined under the
Revised Penal Code or its equivalent under special laws
*The accused applying as state witness must have been arraigned already  dropping of an accused before
arraignment is not a discharge but an exclusion; AND ALSO for double jeopardy to attach.
What happens if the court improperly or erroneously discharges an accused as state witness
(ex. he has been convicted pala of a crime involving moral turpitude)?
The improper discharge will not render inadmissible his testimony nor detract from his competency as a
witness. It will also not invalidate his acquittal because the acquittal becomes ineffective only if he fails or
refuses to testify.
NASAM 2017 72
What happens when the original information under which an accused was discharged is later
amended?
A discharge under the original information is just as binding upon the subsequent amended information,
since the amended information is just a continuation of the original.
Can the other conspirators be convicted solely on the basis of the testimony of the discharged state
witness?
No. There must be other evidence to support his testimony. The testimony of a state witness comes from a
polluted source and must be received with caution. It should be substantially corroborated in its material
points.
As an exception, however, the testimony of a co-conspirator, even if uncorroborated, will be considered
sufficient if given in a straightforward manner and it contains details which could not have been the result of
deliberate afterthought.
JUDGMENT (R120)
What is promulgation of judgment?  accused will have to be present; the judgment of the court will be
read to the accused. EXCEPT: if light offense.
If you are convicted of an offense with penalty death, life or rec perpetua  you cannot apply for bail.
Can a judgment be modified? YES. At any time before judgment of conviction becomes final.
Variance between what was alleged and what was proved  you will be convicted for the crime proven
– Demanda robbery  proved theft  theft ka convicted
– Demanda qualified theft  di napatunayan special relationship  theft lang yun
– Demanda ka for rape  di napatunayan yung carnal knowledge  acts of lasciviousness yun
REMEDIES (within the reglamentary period)
Judgment (1) MR  errors of fact or law which requires no further proceeding
(2) MNT 1. newly discovered evidence

2. errors of law that may prejudiced the accused
(3) Appeal
APPEAL – R122
Is appeal a part of due process: Appeal is not a part of due process EXCEPT when provided by law. If
the right to appeal is granted by law, it is statutory and must be exercised in accordance with the
procedure laid down by law. It is compellable by mandamus.
Where should the appeal be filed?
1. If the case was decided by the MTCs, the appeal should be filed with the RTC.
2. If the case was decided by the RTC, the appeal should be filed with the CA or the SC in proper cases
provided by law.
3. If the case was decided by the CA, the appeal should be filed with the SC.
Can the prosecution appeal a judgment of acquittal? No.
A judgment of acquittal becomes final immediately after promulgation. It cannot even be the subject of
certiorari. The reason for this rule is that an appeal would place the accused in double jeopardy. However,
the offended party may appeal the civil aspect of the case.
NASAM 2017 73
A, B, C, D, and E were all charged with murder, punishable by death. A, B, and C were charged as
principals. D was charged as an accomplice. E was charged as an accessory. All of them were
convicted. To whom should they appeal?
A, B, and C’s case will be automatically reviewed by the SC without need for notice of appeal, since the
penalty imposable is death. D and E should also appeal to the SC because although the penalty imposable
is not death, the offense arose out of the same occurrence that gave rise to the offense punishable by
death. The reason for this rule is so that only one court will review on appeal the single case involving
different defendants. This would prevent a variance or conflict in the decisions of the SC and the CA.
What is the effect of the perfection of an appeal? When an appeal has been perfected, the court a
quo loses jurisdiction.
How is appeal taken?

FROM THE DECISION OF APPEAL TO HOW
MTC RTC File a notice of appeal with the MTC and serve
a copy of the notice to the adverse party
RTC in the exercise of its original jurisdiction CA R124 File a notice of appeal with the RTC and serve
a copy of the notice to the adverse party
(not death, life imprisonment, rec perpetua)
RTC in the exercise of its appellate jurisdiction CA R42 File a petition for review with the CA under
Rule 42
RTC where the penalty imposed is reclusion perpetua or SC File a notice of appeal with the RTC and serve
life imprisonment, OR a copy of the notice to the adverse party
(R124 S13)
where a lesser penalty is imposed for offenses committed
on the same occasion or which arose out of the same
occurrence that gave rise to the offense punishable by
death, reclusion perpetua or life imprisonment
RTC imposing the death penalty SC Automatic review by the SC

R124  CA will review, render judgment, but
cannot enter judgment
All other appeals, except the two cases above SC Petition for review on certiorari under R45
Sandiganbayan (Orig or Appeal) SC Petition for review on certiorari under R45
Sandiganbayan (Orig  Life, Rec P) SC Notice of Appeal
Sandiganbayan (Orig  Death) SC Automatic review of SC
Sandiganbayan (Appellate – D, L, RP) Sandiganbayan will render but not enter
How is an appeal perfected?
An appeal is perfected by filing a notice of appeal with the court in which the judgment or order was
rendered, and by serving a copy thereof upon the adverse party or his attorney within the period for
perfecting an appeal.
Within what period must appeal be perfected?
An appeal must be perfected within 15 days from promulgation of the judgment or from notice of the final
order appealed from.
What is the difference between the appeal of a judgment and the appeal of an order?
The appeal from a judgment must be perfected within 15 days from promulgation. The appeal from an
order should be perfected within 15 days from notice of the final order.
NASAM 2017 74
A and B were convicted of murder. Only A appealed from the conviction. Should the decision of
the appellate court bind B?
It depends. If the decision of the appellate court would be beneficial to B, it should affect him. But if the
decision would not benefit him, it should not bind him.
What is the effect of the appeal by the offended party of the civil aspect of the judgment on the
criminal aspect? Nothing.
Can an appeal that has already been perfected by withdrawn by the appellant?
If the records have not yet been transmitted to the appellate court, the court that rendered the judgment
has the discretion to allow the appellant to withdraw the appeal. If the appeal is withdrawn, the judgment
shall become final.
If the records have already been transmitted to the appellate court, only the appellate court may decide
whether to grant the motion to withdraw the appeal, and only before the judgment is rendered in the case
on appeal.
Is counsel de oficio still required to represent his client on appeal? Yes. The duty of counsel de
oficio does not terminate upon judgment of the case. It continues until appeal.
A non-appealing accused enjoys the benefit of a favorable judgment acquired by the appealing
coaccused-
 Let’s say that all of the four (4) accused appealed; but one of the 4 filed the wrong mode of appeal;
the 3 obtained a favorable judgment  can the one who filed the wrong appeal enjoy the benefit of
the favorable judgment?  NO, because you will enjoy the benefit of a favorable judgment if you are
a non-appealing accused.
SEARCH WARRANT
Pilipinas Shell vs Romars (2015)
 A search warrant is defined in our jurisdiction as an order in writing issued in the name of the People
of the Philippines signed by a judge and directed to a peace officer, commanding him to search for
personal property and bring it before the court.
 A search warrant is in the nature of a criminal process akin to a writ of discovery. It is a special and
peculiar remedy, drastic in its nature, and made necessary because of a public necessity.
 Search warrant is considered merely as a judicial process, generally issued by a court in the
exercise of its ancillary jurisdiction, and not a criminal action to be entertained by a court
pursuant to its original jurisdiction
 proceedings for said applications are not criminal in nature and, thus, the rule that venue is
jurisdictional does not apply thereto.
Where should the application for search warrant be filed?
GR: it should be filed with the court within whose territorial jurisdiction the crime was committed.
XPN:  for compelling reasons, it can be filed with the court within whose judicial region the offense
was committed or where the warrant is to be served.
Example of this: The drug syndicate stores its drugs in Pasay. It has connections in Pasay and can
easily get a tip when the police officers will file for a search warrant. To avoid the drug syndicate from
getting a tip of the impending search, the police officer may apply for a search warrant in Makati
(within the RTC region), stating the compelling reason.
But, if the criminal action has already been filed, the application for a search warrant can only
be made in the court where the criminal action is pending.
NASAM 2017 75
You can apply for search warrant in the Exec. Judge of Manila or Quezon City if any of the
following crimes was committed:
1) heinous crimes;
2) illegal gambling;
3) illegal possession of FAs and Ammos;
4) violation of the Comprehensive Dangerous Drugs Act;
5) violation of Intellectual Prop Code
6) violation of the AMLA of 2001
7) violation of the Tariff and Customs Code
*Search warrant issued by Exec Judge of Manila or QC can be implemented anywhere in the Phils
REQUISITES FOR THE ISSUANCE OF A SEARCH WARRANT
1. There must be probable cause
2. Which must be determined personally by the judge
3. upon personal examination in writing and under oath of the complainant and his witnesses in the
form of searching questions and answers on facts personally known to them
4. the probable cause must be in connection with one specific offense
5. particularly describing the place to be searched and the items to be seized
6. the sworn statements together with the affidavits of the witnesses must be attached to the record.
*failing to comply  the search warrant may be denied or if issued will be quash
MOTION TO QUASH THE WARRANT MOTION TO SUPPRESS THE EVIDENCE
- this is filed if the search warrant had been issued but not - when items have already been seized pursuant to a
yet implemented  no items have yet been seized search warrant and you don’t want the court to
consider it as evidence
SEARCH BY REASON OF A WARRANT

 “Knock and Announce Principle”  In the enforcement of the search warrant, officers
implementing it must announce their presence, identify themselves to the accused or to the person
who was given the authority to allow the officers search the premises, show the warrant to be
implemented, and explain to them said warrant in a language or dialect known and understood by
them.
 The officer has the right to break door or window to effect search, if after executing the “knock
and announce principle”, he was refused admittance thereto (Section 7).
 It is also required and mandated by law that the conduct of the search should be done in the
presence of any of the following:
1) lawful occupant of the place to be searched, or
2) any member of his family; or
3) in their absence, in the presence of two witnesses of sufficient age or discretion residing in the
same locality.
Officers conducting search without the said requisite could be held liable for violating Article 130 of the
Revised Penal Code that is (Searching Domicile without Witnesses).
SEARCH AS AN INCIDENT TO A LAWFUL ARREST
 Laguio vs People  It must be made AFTER the arrest. The objective is to make sure that the life of
the peace officer will not be endangered.
 It must be contemporaneous with the arrest in both time and place.
NASAM 2017 76
BUY-BUST OPERATION
 Do we need to follow the 2-witness rule?  NO, because this is not a search with a warrant.
CHAIN OF CUSTODY RULE (S21 - RA 9165)
It is the duty of the police operatives to mark the specific substance in the presence of the representatives
of the DOJ, the media, the police, and the barangay; failing to do so would violate the chain of custody;
The reason for the marking is to make sure that the substances that were seized is the same substances
or items that will be presented in court;
If there is an interruption in the so-called “chain of custody” then the evidence submitted in the court is
inadmissible; and if that is the sole evidence available then the accused will have to be acquitted;
However, the recent jurisprudence has relaxed this rule; the SC has not repeatedly stated that for as long
as the genuineness and authenticity of the illegal substance is maintained, then the court can still accept
it as evidence.
R127 PROVISIONAL REMEDIES IN CRIMINAL CASES
PROVISIONAL REMEDY  It is one provided for present need or one that is adopted to
meet a particular exigency.
PROVISIONAL REMEDIES UNDER THE RULES OF COURT APPLICABLE FOR CRIM PROCEEDING:
1. Attachment (Rule 57)
2. Injunction (Rule 58)
3. Receivership (Rule 59)
5. Support Pendente Lite (Rule 61)
*Replevin is not included, because you only apply replevin before an Answer  in criminal cases there is
no Answer.
Purpose of Provisional Remedies
 Provisional remedies are applied pending litigation, to secure the judgment or preserve the status
quo.
 If provisional remedies are applied for after judgment, it is in order to preserve or dispose of the
subject matter.
Although civil action is suspended until final judgment in the criminal case, the court is not deprived of its
authority to issue preliminary and auxiliary writs which do not go into the merits of the case.
Preliminary writs and auxiliary writs referred to are those such as the ff:
 Preliminary injunction
 Attachment
 Appointment of receiver
 Fixing amounts of bonds
When can the offended party have the property of the accused attach when a civil action is
instituted with the criminal action?
 When the accused is about to abscond from the Philippines;
 When the criminal action is based on a claim for money or property embezzled or
fraudulently misapplied or converted to the use of the accused who is a public officer, officer of a
corporation, attorney, factor, broker, agent or clerk, in the course of his employment as
such, or by any other person in a fiduciary capacity, or for a willful violation of duty;
 When the accused has concealed, removed, or disposed of his property, or is about to do so; and
 When the accused resides outside the Philippines.
NASAM 2017 77
SPECIAL PROCEDURE
- is a proceeding (not an action)  is a remedy by which a party seeks to establish a status, a right, or a
particular fact;
- the enumeration of special proceedings in Sec. Rule 72 is not exclusive.
ACTION FOR DECLARATION OF HEIRSHIP (not enumerated in R72) - for petitioners to have them
declared as heirs
Application for Orig Registration of a Parcel of Land (PD1529)  NOT found in R72  merely
establishing who is the owner, even if there are oppositors
Art. 151 of Family Code NOT applicable to special proceedings  kasi for “suits” lang ang Art. 151
S6 R39 of ROC not applicable to special proceedings kasi enforcement and execution of judgment in
special proceeding there’s nothing to execute because they are just declaration of status or fact
HABEAS CORPUS R102 – Petition for the Issuance of a Writ of Habeas Corpus
➢ have the body
It is available in cases of:
1. Illegal confinement or detention;
2. Where the rightful custody of any person is withheld from the person rightfully entitled thereto
Arrest on mistaken identity is an unlawful arrest hence, Habeas Corpus is proper
JURISDICTION
Concurrent jurisdiction SC, CA, RTC, Sandiganbayan (in aid of its appellate jurisdiction) no rule
of hierarchy here;
Special jurisdiction MTC, in the absence of RTC judges in the province/city
 May also be filed to Judge/s or Justice/s of the above-mentioned courts, even if they are not in court;
RETURNABLE
In Habeas Corpus petition Complaint is Writ; Answer is Return;
 From CA to RTC RTC judge will render the decision;
➢ If the RTC judge denied the petition the petitioner should appeal to CA
VENUE
 Anywhere in the judicial region in which the writ is sought to be enforced
Example: National Capital Judicial Region person is in QC, then it can be filed in Makati;
ENFORCEABILITY OF THE WRIT
- Writs issued by SC, CA, Sandiganbayan enforceable anywhere in Ph
- Issued by RTC and MTC enforceable only within the judicial region in which they belong
 The issuance of Writ of HC is a matter of course it is routinary; same as issuance of summons in
civil cases
 The grant of the Privilege of the Writ
CONTENTS of the VERIFIED PETITION (PICO)
1. PLACE where the person is
2. The person is IMPRISONED or illegally deprived of his liberty
3. COMMITMENT ORDER or other process, if applicable
4. OFFICER who is exercising custody over the person subject of the petition
*SUBSTANTIAL COMPLIANCE RULE – strict compliance may be dispensed with
Next: June 11 Part 1(b) 12:35
NASAM 2017 78

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REMEDIAL LAW (RULE 13 – RULE 127): ATTY.

SALVADOR III LECTURE – 2017 BAR

R13 – FILING and SERVICE of PLEADINGS, JUDGEMENTS and OTHER PAPERS

 If cannot be served personally, you have to explain to the court why

B. Registered Mail - affidavit of the person mailing

SERVICE (R13) Completeness Proof of service

B. Mail: -affidavit of the person mailing

Service originating from the court

A. Personal  official return served by the sheriff/server

(1) Republic vs Cagioa (2013)

(2) Mindanao Terminal and Brokerage Service vs CA (2012)

 Apparently, he already transferred office.

 SC: R13 S9 & S10 -

 Client lose a multi-million case due to negligence of the counsel.

(4) Aberca vs Ver

 Case involving the most trusted gen of late FM

NOTICE OF LIS PENDENS R13 S 14

 is not litis pendentia

 is a notice that the prop is subject of a pending litigation

 a NLP cannot defeat an existing annotation or encumbrance

 The property must be directly affecting the title, possession or interest

PURPOSE OF A LIS PENDENS

The same as - Notice on Delinquency Payment of condominium assessments –

When a NLP is appropriate: When NLP does not apply:

Summons and subpoena are 2 diff matters –

How do you serve summons?

2. Substituted – where there is impossibility of personal service for justifiable causes

> An action when there is no defendant is an action in

Sec 15 – EXTRA-TERRITORIAL SERVICE

>Writ of Attachment  purpose: secure the judgement

Rule 14 Sec 14: Defendant’s identity/whereabouts are unknown

>SC: no proper service of summons

Foreign Rule 14, Sec. 12 –

1. if the defendant is unknown 1. the defendant is not a 1. the defendant is

De Pedro vs Romasan Devt

The Return provides:

National Petroleum Gas vs RCBC (2015)

Romulo vs Peralta – Proof of registered mail

- publication was used to serve summon

Alias Summons – first summons is (1) lost; or (2) returned unserved.

Cabrera vs Ng (2014)  3-day Notice Rule

NEYPES RULE – Fresh Period Rule

 Is the failure to raise efforts to a compromise in a complaint a jurisdictional defect?

Tamayo vs San Miguel

Heirs of Fabis vs Gonzales

1) If it is denied, you can file your Answer

2) If it is denied and you do not agree with the denial, file a MR

Brown Araneta vs Araneta

> SC said: Yes there was forum shopping

Can a dismissed complaint be refiled? YES, generally.

> Rule 41  You do not file an appeal on a dismissal without prejudice!

> SC: yes the motion was filed out of time

PNB vs Gateway - Litis Pendencia

> then another case annulment of the foreclosure sale

> CA said it is not splitting cause of action

Splitting cause of action Litis pendentia

1. Parties are the same 1. The parties substantially similar

> Litis pendencia – pending suits; is a ground for motion to dismiss

GROUNDS FOR MOTION TO DISMISS (R16)

What is the test of sufficiency of cause of action?

1) The falsity of the allegation is subject to judicial notice

2) Such allegations are legally impossible

3) The allegation refers to fact which are inadmissible in evidence