JURISDICTION
SC is not a trier of facts
The solar system of remedial law revolves around the sun of
jurisdiction. Remove the sun, all the planets will die.
Any judgment, decision, final order or resolution rendered by a
court without jurisdiction is null and void.
I don’t even pay my taxes.
Forcible entry and unlawful detainer. A leases unto B, B will pay
3k per month. B failed to pay. A Filed before the RTC. It should be
dismissed on the ground of lack of jurisdiction.
Petitioner filed petition for certiorari before the SC. It should be
filed before the RTC pursuant to the doctrine of hierarchy of
courts
Jurisdiction is the authority to hear and determine a case.
Any authority of the court may only be exercised if there is
justiciable controversy. If the controversy is not justiciable, it is
beyond the scope of judiciary.
Jurisdiction lies with the regular courts.
One Supreme Court
Article VIII of the 1987 Constitution
Memorize Sec 5 Art VIII
Regular Courts
Court of Tax Appeals had been regularized. It now forms part of
the regular courts. It has been elevated to the level of a CA. (RA
9282)
Regional Trial Courts
Lower Courts - MeTC MTCC MTC McTCShariah Courts – Circuit,
District, Appellate
Villagracia v. the 5thShariah Circuit Court (2014) – the Shariah
Courts do not have jurisdiction over real actions where one of
the parties is not a muslim.
Lomondot v. Balindong 762 SCRA – Any decision of the Circuit
Shariah court must be brought to the district and any decision of
the district must be brought before the Shariah appellate court.
Quasi-judicial have jurisdiction pursuant to the law or circular
issued by the Supreme Court creating them.
PRIMARY JURISDICTION
QJ bodies falling under the executive department has power to
determine justiciable controversies.
COSLAP, CIAC
Military Courts are not really courts as it is known. They can only
take cognizance of military service oriented disputes.
There are cases which can be brought before the military courts
and regular courts e.g. coup d etat
Jurisdiction: According to Nature
Original – first time(virginal)
It may either be exclusive or concurrent(confluent).
Exclusive – one and only
Concurrent – several courts can take cognizance of a case. The
party has no absolute power/right where to bring it.
3 Fundamental Principles on Concurrent Jurisdiction
1. Hierarchy of Courts – it should be brought before the
lower court
2. Transcendental Importance – Agan v. PIATCO , Republic All the rest, appellate jurisdiction.
v. Guingoyon, Asia’s Emerging Dragon v. DOTC. The SC is
not governed by the rules.
3.
Appellate – second time (pangalawang bf)
City of Manila v. Judge Cuerdo –
Split-Jurisdiction is anathema to procedure.
Jurisdiction of the Supreme Court Sec 5 of Art VIII of the
Constitution
a. All cases involving ambassador and public minister
b. Petitions for CPM, QW and HC
EXCLUSIVE - Final orders, resolutions, decisions, judgment of CA,
CTA En banc, SB, COA, COMELEC, Shariah Appellate Courts. All
the rest would be concurrent.
BAR MATTER WRIT OF AMPARO PROPER – JURISDICTION
Appellate Jurisdiction of the SC
By appeal or certiorari so if it is by appeal it would be Rule 45
which is a mode of appeal. If certiorari, rule 65.
AS TO OBJECT: Umpisahan sa baba
1. Jurisdiction over the subject matter
Jurisdiction over the subject matter is conferred by law.
Read BP 129, RA 7691, RA 8369
Family Courts and RTC are separate and distinct from each other.
Remember that Family Courts are creations of law. They are not
instituted through SC Circulars. Unlike Special Criminal Courts,
Intellectual Property Courts, Drug Courts.
Bar Matter
Memorize Rule 113 Sec. 5 Warrantless Arrest VERBATIM.
The Supreme Court jurisdiction is not conferred by law. It is
conferred by Constitution. Sec 5 Art VIII. First par refers to
original jurisdiction. 2nd par refers to appellate jurisdiction. All
the rest has nothing to do with jurisdiction.
The law governing Sandiganbayan. RA 7975, 8249 the latest is RA
10662.
Shariah Court 1054.
CTA RA 9282
RA7691
Court of Appeals
Exclusive original jurisdiction isa lang yan. Annulment of
judgment of RTC under Rule 47.
Bar matter Santos v. Santos 737 SCRA
Eto magasawa to who were married in QC, lived in QC. Wife
went to HK. 1st and 2nd year nagpapadala. on the 3rd 4th 5th yr
biglang naglaho. On the 7th year of absence ata, Mr Santos filed
declaration of presumptive death case for purposes of
remarriage. He filed the case in Tarlac. after trial RTC granted it.
He remarried and lived in Tarlac. Mrs. Santos filed an annulment
of judgment before the CA. She argued that all the while she
never left for HK, her husband knows that she was in QC they
were never separated. It was Mr. Santos who left and live with
his kalaguyo. So there was fraud in obtaining the judgment. Mr.
Santos said that the remedy was wrong. She should have filed an
affidavit of reappearance. The SC said J.Leonen there is no other
remedy but Rule 47 and not that simple affidavit of
reappearance.
Annulment of Judgment of MTC – bring that to RTC not CA
Annulment of Judgment of quasi-judicial bodies – there is no
such remedy. Remedy is Rule 43.
2. Jurisdiction over the persons of the parties
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Plaintiff – Kumpleto dapat sagot eto: jurisdiction over the res. Watch out for the enumeration. See
The court acquires jurisdiction over the person of the plaintiff Rule 57 Sec. 1 is exclusive.
upon filing of the complaint and timely payment of the correct Secs 14 and 16 of Rule 14 on Summons
docket fees. Jurisdictional yan. where the defendant’s whereabout is unknown
Even if you pay but pay out of time or pay it on time but it is temporarily outside the philippines
incorrect, the court does not acquire. these are the instance where the court may acquire jurisdiction
Landmark Case of Alday v. FGU, Proton v. Banco National De over the res and proceed even if it does not acquire jurisdiction
Paris, Rubi Shelter Doctrine. SLU v. Cobarubbias. Gipa v. Southern over the person of the defendant.
Luzon Institute. Revisit these cases
We have gone back to the doctrine in Alday v. FGU. Docket fees 4. Jurisdiction issue – determined by the allegations in the
are required also in permissive counterclaims. pleadings. If it is not alleged, the court does not have
Not limited to complaints only, even counterclaims require the juris over the issue but could be a subject matter of trial
payment of docket fees. Forget about Lerma Doctrine. Apply Pleadings – Complaint, Answer, Reply
Alday v. FGU In Spec pro – Issues are not determined by the pleading. It is
Docket fees are required only in permissive counterclaims. determined by law.
On appeal, kailangan din ang docket fees. It is not equated to A filed a complaint against B for sum of money. In A’s complaint,
filing fees only but all other required fees. It includes deposit. he never mentioned about DEMAND letters before he filed the
complaint. In the course of trial, A’s counsel was trying to
Gipa Case establish that there was demand by presentation of demand
SLU filed a case against Gipa et al for recovery of property of SLU. letters. What should the counsel for the defendant do? The
SLU won before the RTC of Sorsogon. Gipa appealed to the CA. counsel for the defendant should object on the ground of lack of
He appealed by mail and pinadala yung pera. Pagdating sa CA jurisdiction over the issues. The objection must be immediately
timely naman. CA said kulang ang docket fees. Gipa said it is raised. The issues regarding demand letters were not raised in
enough they already paid 3000. CA said kulang ng 30 pesos. Gipa the pleading. What should the court do? Sustain. The court has
argued I have paid substantially. SC said the court did not acquire no jurisdiction. What is the remedy of the plaintiff? go to Sec. 5
jurisdiction because the payment was incorrect. Rule 10. Amendment to conform to evidence.
There are cases where the law already specifies the issues:
Saint Louis v. Cobarubbias Unlawful Detainer/Forcible Entry - issue of possession de facto.
Cobarubias was an employee of SLU. Tinerminate siya. Talo si Any issue other than possession de facto is outside the
Cobarrubias so he appealed(certiorari) to CA. Cobarubias paid jurisdiction of the court. However, Sec 16 R70 when the issue of
the docket fees. SLU opposed that it was paid out of time. The SC ownership is raised in the pleadings, the court is not divested of
said the court did not acquire jurisdiction. The non-payment will jurisdiction but must resolve the issue of ownership to resolve
not toll the prescriptive period. the issue of possession.
Defendant – upon valid service of summons or voluntary Probate of a will – the only issue is the authenticity and due
appearance. execution of the will. Ownership of the property belonging to
Co-defendant - upon valid service of summons or voluntary estate is not the issue there. But it can be raised and therefore
appearance. the court acquires jurisdiction over the issue.
3rd, 4th, 5th party defendant – upon impleading such party. You 5. Jurisdiction over the territory – does not apply in civil
cannot implead them without leave of court. cases. It applies therefore in criminal cases. The court
Intervenor – Rule 19. You cannot intervene without leave of must have jurisdiction over the territory. Territory
court. where the crime is committed. In civil cases, territory is
Parties to Crim Case - Republic and Accused not a matter of jurisdiction but a matter of venue.
Spec Pro Petitioner Venue is jurisdictional in criminal cases
3. Jurisdiction res – “thing”
This refers to the object of the action. Should the court acquire Rules on VENUE
jurisdiction over the res in order to proceed with trial? NO. it 1. provided for by law or Rule
does not have to. as long as the court has acquired jurisdiction 2. Agreement of the parties
over the person of the defendant, it does not have to have 3. Apply Rule 4 Sec. 1 or Sec. 2
jurisdiction over the res. But when is jurisdiction over the res
necessary? When the court cannot acquire jurisdiction over the
person of the defendant. The case can continue nonetheless, as In criminal cases:
long as the court has jurisdiction over the res. If it is a right, it will Jurisdiction over the offense charged
not apply. Jurisdiction over the person of the accused
Example Jurisdiction over the issues
A files an action for recovery of parcel of land against B. But B is When does the court acquire jurisdiction over the issues? Upon
nowhere to be found. Can the case continue? Generally the case arraignment
cannot continue bec the court cannot acquire jurisdiction over The jurisdiction of the RTC pursuant to R.A 9281, just read them.
the person of the defendant B. What should A do? Let the What is important here?
court acquire jurisdiction over the res. How? Rule 57- Action not capable of pecuniary estimation (sagad na sagad nay
Attachment. Apply for a writ of preliminary attachment. If it is an. Gasgas nay an)
granted, the court acquires jurisdiction over the property. The Procedurally what is meant by action not capable of pecuniary
case can continue nonetheless as long as the court acquire estimation is where a party prays for money, is determinable by
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money, then it is capable of pecuniary estimation BUT if money It provides that if RTC has jurisdiction it shall assume jurisdiction
becomes IMMATERIAL OR INCIDENTAL as the rule provides, then as if it was originally filed with the RTC. Pero kung wala I remand
it is not capable of pecuniary estimation. mo duon gaya ng sa vda. De barrera case.
Kaya nga you have to look at the prayer in the complaint. If the Remember that R.40, Sec.8 is an exception rather than the
prayer is ultimately for money then it is determinable, capable. general rule. Bakit? You look at the nature of this provision. An
If money is only incidental then it is not capable. appellate court can only take cognizance of a case in the exercise
EX: The prayer is finish the construction of my house AND pay me of its appellate jurisdiction if the lower court has original
P250K. (The 250K is only incidental) jurisdiction. So in this case the RTC is taking cognizance of the case
But if you change the prayer into, “finish the construction of my in the exercise of its appellate jurisdiction but assuming original
house OR pay me 250K (there’s an alternative) so now it is capable jurisdiction ultimately kasi walang jurisdiction yung MTC. (Hindi ba
of pecuniary estimation. (Itatanong ba to sa bar? Hindi na, hindi it violates the basic rule? That an appellate court can only take
na itatnong yan, diniscuss ko lang kasi we will not leave any stone cognizance of a case exercising appellate jurisdiction if the trial
unturned. Hahaha) court has original jurisdiction, ngayon this is an instance where the
trial court has no original jurisdiction but in the exercise of its
An action for a sum of money, you have to distinguish the principal appellate jurisdiction assumes jurisdiction as if it was originally
claim, the claim for interest, attys fees, damages of whatever kind. filed with it. (Yun ang impact nitong sec 8 r.40) (intindihin dahil
What DETERMINES jurisdiction is the PRINCIPAL claim for money. there are possible questions there)
But there was one bar problem where the promissory note
specifically provides for principal 250K, Damages 100K, Interest Well, ano pang importante?
100k, Attys fees 50k. Estate Proceedings
This promissory note was made the basis of a claim for a civil case. Under R.A 7691, estate proceeding whether testate or intestate
Where should it be filed? may be taken cognizance of by the lower court depending on the
ANS: It is no longer an action for sum of money but it is already for gross value of the estate.
a breach of contract irrespective of the amount. BREACH is
INCAPABLE of pecuniary estimation. Yung jurisdictional amount (Wag kalimutan)
300k and below MTC outside, 400k and below. MTC inside. Tie this
How about an action involving title to or possession of property. up with the totality rule, on the joinder of causes of action.
The DETERMINANT of jurisdiction is the ASSESSED value of the
property. (Eto pwede pa ito lumabas) (This was asked last year Now. Jurisdiction of the RTC vs. Family Court, (Basahin ang 7691
indirectly in relation to sec 8, Rule 40) in relation to 8369)
Marriage you don’t file this anymore with the RTC. Take note with
Presentation of problem: the law transferring the subject matter involving family etc to the
A files a case for unlawful detainer (this is an exclusive & original Family Court.
jurisdiction) however there was no valid demand (remember
demand to vacate & pay is jurisdictional, and provides a period Guardianship. Guardianship over minors (Family Court) yan. But
that it should be filed not more than 1yr from the last demand) how about Guardianship over an incompetent RTC yan. Now if the
In this particular case the demand was beyond the 1yr period incompetent is a minor eh family court, because R.A 8369 clearly
hence the court has no jurisdiction for unlawful detainer & forcible states that whenever a minor is involve, then it is automatically
entry hence the MTC dismissed the case for lack of jurisdiction. and exclusively cognizable by the family court. (Take note of the
That order of dismissal is a final order hence it is appealable. This simple distinctions)
was appealed to the RTC (Accion publiciana) from accion Anti-Violence Against Women And Children(R.A9262) – Family
interdictal it now becomes accion publiciana cognizable by the Courts
RTC. All cases regarding marriage and marital relation – Family Court
How about drug cases? That is RTC, pero If it involves a minor even
When the RTC analyzed the allegation in the complaint it was though it is with the drug court it has to be transferred to Family
discovered that the assessed value of the property was within the Court. Absolute kasi ang rule.
jurisdiction of the MTC. Therefore the RTC has now jurisdiction as (Note: the minor must be a party to the case) ayan ang titignan
well. (eto yung kaso sa Vda. De bareira doctrine?) niyo. Being a witness is not a party. Therefore, it remain with the
So what does the RTC do? Assume jurisdiction? RTC. You will only be a party to the case if you are either the
NO. Sec 8 of R.40 WILL NOT apply. That should be REMANDED to plaintiff or the defendant.
the MTC on an action involving title to or possession of property. In fact in criminal cases the party is the complainant the Republic
Now what is the doctrine? of the PH and the accused. Eto this is ticklish, because if the
Ans: That accion publiciana is not necessarily cognizable by the private complainant is a minor in criminal cases, where should it
RTC because accion publiciana may involve title to, or possession be?
of property where the DETERMINANT of the jurisdiction is the Is he a party to the case? Technically he is not a party to the case
ASSESSED value of the property. 20k and below if outside MM. because in criminal case the party is only the republic of the PH
50K and below if it is within MM. (within the jurisdiction of the and the accused. BUT that is still with the FAMILY COURT.
lower court) Yan ang tatandaan niyo. Absolute yan ah. Kapag ang minor. Do not
( confuse this with the rule of evidence, the exclusion. Na the court
Side Topic) can exclude nonparties to the case.
Yung dyan sa Sec. 8 R.40 (Appeal from MTC to RTC) (Appeal from So, the private complainant in a criminal case can be excluded.
orders dismissing case without trial; lack of jurisdiction) Why? Because he is not a party to the case. But yung regarding
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jurisdiction you don’t apply that provision. It is always absolute (Ok, this answers the second question)
when a minor is involve it is WITH the FAMILY COURT. Ngayon by jurisprudence na aamyendahan yan ah. Although still
the landmark case of Escobal vs. Gatchitorena applies, the SB does
SANDIGANBAYAN. not have jurisdiction over Escobal because he is a sergeant of the
This is not a constitutional court. It is a constitutionally mandated PH army but his salary grade is merely 23.
court but it is still a creation of law not a creation of the May bago ngayon, new case. Duncano vs. SB 762 SCRA. The SC
constitution. There is only one constitutional court and that is the said: Duncano is not within the jurisdiction of the SB because the
Supreme Court. All the rest are creations of law or constitutionally regional director of the BIR, is only Salary Graded 26.
mandated. Now.
The Sandiganbayan has both the original and appellate jurisdiction 3. How was the offense committed?
over criminal cases. BOTH original and appellate. Ans: the offense was committed in relation to one’s public office.
Unlike the Supreme Court and the Court of Appeals they DO NOT “in relation to one’s public office” was construed to be that the
have original jurisdiction over criminal cases. SC & CA – NO public office must be the ingredient of the crime.
ORIGINAL jurisdiction over criminal cases. Etong mga tanong na to No. 1,2,3 is only a GEN.RULE because this
But the SB has BOTH. was somehow amended by the Hannah Serrana vs SB case. (Kaya
it’s a must to read this case)
Let’s discuss the original jurisdiction. Under the original Hannah Serrana Case:
jurisdiction, the original law is P.D 1606 but this is under the Hannah Serranah was a member of the Board of Regent, she hails
present, R.A 7975 as amended by 8249 the latest law is R.A10662 from the UP Visayas. The Governing body of a State university is
But still to determine the jurisdiction of the SB pare pareho. You the Board of Regent.
just have to answer three (3) fundamental questions in She solicited money from President Joseph Estrada to renovate
determining the jurisdiction of the Sandiganbayan. the vinzons hall in the UP. The President gave her millions,
1. What offense or crime was committed? however nothing happened with the project.
2. Who committed the crime or offense? So the following year, the successor in the Board, filed a case of
3. How was the offense or crime committed? Estafa against her before the Sandganbayan.
1. What offense or crime was committed? Apat lang ito. There are Hannah filed a motion to quash on the ground of lack of
only under the law four crimes or offenses cognizable by the jurisdiction. Why?
SB Accdg to her:
a. R.A 3019 the Anti-Graft & Corrupt Practices Act 1. Estafa is not among the crimes cognizable by the SB
b. Ill-gotten wealth law 1379 2. Assuming that it is, I’m not a public officer.
c. Bribery under the RPC 3. Assuming again that im a p.o, I do not have SG 27.
d. Law on the PCGG Cases, E.O1, 2, 14, 14-A 4. And even if it is, I did not commit it in relation to my one’s
Apat lang yan. All the rest is not with the jurisdiction of the public office. (which must be an element or ingredient of
Sandiganbayan. And this was enunciated in two landmark cases. the crime)
The first is the case of Sanchez vs Demetrio: Mayor prosecuted for SB denied the quashal of the information. So Hannah went to SC
rape with homicide, who said, Mayor ako dapat sa SB ito, SC held raising the same issues. SC held that:
that you don’t have to be a mayor to be a rapist. (To commit rape) 1. From now on, Estafa will be cognizable by the SB.
The other case is the kuratong baleleng case Lacson vs. Executive (Walang rationale)
Secretary. Murder case, the SB said that murder does not fall 2. Who is a p.o? it is someone who performs public function
within its jurisdiction. and considering you are a board of regent, you’re
Kaya yun lang apat nayun. performing a public function, you’re a public officer.
However, jurisprudence has added other crimes Hannah Serranah 3. If you try to look at the law 1606, not all public officers
vs Sandiganbayan (IMPT ITO!) MUST READ CASE. are salary graded. There are a lot of p.o who do not have
Anong kaso ito? Estafa. SG, like presidents of state colleges, directors, trustees of
Estafa is not within the laws, pero now ESTAFA is within the GOCC. (you fall under this category)
jurisdiction of the Sandiganbayan 4. “As long as the public office facilitated the commission of
Aside from Hannah serranah case, as far as the 1st criterion is the crime, it is done in the performance of one’s public
concern is the case of Ramiscal vs Sandiganbayan, anong kaso ito? office.
Falsification. Therefore, the 3 requirements earlier mentioned was somewhat
Then ang pangatlo although this not directly related kasi civil ito, amended by the Hannah Serranah Case. (KAYA BASAHIN NYO TO)
forfeiture. Sandiganbayan took cognizance pursuant to the case of Yung ramiscal somewhat nakapasok na yung falsification.
Clarita Garcia vs. Sandiganbayan. 8249 history ng jurisdiction ng Sandiganbayan. Daanan niyo din.
So aside from the first four mentioned by law, etong tatlong case
naman ay provided by the jurisprudence. (So this answer are first we will study some kinds of jurisdiction already given in the Bar
question) already.
2. What crime or offense was committed? Delegated Jurisdiction: it is the jurisdiction of the MTC in handling
Will that answer the jurisdiction of the SB? No hindi pa, the next cases of land registration and cadastral cases where the assessed
is who committed the offense. value is not more than 100k and there are no oppositors.
Ans: Public officer with Salary Grade (SG) 27. Importanteng tatandaan niyo dtto is the appeal therefrom is not
So kahit na anti-graft yan if you are not a public officer, or even if to the RTC. This is the only case where a judgment or decision of
you’re a public officer but your SALARY GRADE is 27, your case is the MTC is not brought to the RTC, but brought to the C.A (Yan
NOT within the jurisdiction of the Sandiganbayan. lang, exercise of delegated jurisdiction)
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Special Jurisdiction: is the jurisdiction of the lower court in
handling petitions for bail and petitions for habeas corpus in the
absence of RTC judges. “JUDGES”
Limited Jurisdiction: is the jurisdiction of the court that can handle
only specific subject matter like probate court, mtc court handling
unlawful detainer and forcible entry cases.
Primary Jurisdiction: already laid down in the early case of Omictin
vs. CA. The primary jurisdiction refers to the jurisdiction of quasi
judicial body in handling administrative cases pursuant to the
exhaustion of administrative remedy principle.
Ex: If you are a subdivision owner and you filed a case against the
subdivision developer, you cannot bring that to regular court. You
have to file it first with the HLURB
Landlord/tenant = file with the DARAB
Contractor Subcontractor = CIAC (Construction Industry
Arbitration Committee)
Ang latest concept ngayon ng primary jurisdiction refers already
to jurisdiction of an investigative agency which is the office of the
ombudsman.
How did this happen? 2 yrs ago there was a MOA signed between
the OBM and the DOJ between Leila Delima & Carpio Morales.
In the MOA: All cases cognizable by the SB in the exercise of its
ORIGINAL JURISDICTION must be investigated by the Office of the
Ombudsman, so that if it is under investigation by the DOJ, the
Office of the Ombudsman can take it away from the DOJ and
continue the investigation in the exercise of PRIMARY
JURISDICTION. (Look at now the meaning of the primary
jurisdiction)
This somehow amends the case of sanchez vs Demetrio: in this
case the SC said there is concurrence of jurisdiction between the
office of the ombudsman and the doj in conducting cases
cognizable by the SB .
Ngayon this is somewhat amended.
Pero take note ah, this is limited cases cognizable by the
Sandiganbayan in the exercise of its ORIGINAL JURISDICTION.
In relation to criminal procedure,
Sandiganbayan is principally a criminal court. But take note of
R.111, that whenever a criminal case is filed the civil aspect arising
therefrom is deemed instituted with the criminal case.
Ano ang determinant ng jurisdiction in criminal cases? Basically it
is the penalty imposable. 6yrs & below MTC. 6yrs & 1 day RTC.
However, take note of the exceptions because the law itself
provides, irrespective of the penalty imposed, the following are
with the RTC: like written defamation, illegal recruitment,
violations of the omnibus election code (if not with the COMELEC),
Anti – Money laundering law, Cybercrime prevention act of 2012.
Universal Jurisdiction: yung sa cybercrime prevention act, it is
universal or international jurisdiction. Ex: Laptop, and you see a
libelous matter against you. (Now: where does the crime
committed) will you follow the rule that it is where the crime was
first published and printed? Ans: wala na to.
Kasi ngayon sa Cybercrime, it transcend space. Will discuss this
with the Electronic Evidence.
Residual Jurisdiction: is the jurisdiction of the trial courts that Jurisdiction over the persons of the party as to the plaintiff upon
remains with it even if has lost jurisdiction over the case.
Do not confuse this with residual prerogatives, as laid down by May bago ngayon 2015 case, yung marine mammals. Can they be
Katon vs. Palanca, which refers to the jurisdiction of the appellate parties? Of course they cannot be parties mammals un eh.
courts to dismiss a case motu proprio pursuant to sec 1 rule 9.
(yung apat nay un) This is residual prerogative yan.
When does trial court lose jurisdiction over the case?
Upon perfection of appeal (Sec. 9, R.41)
Appeal is perfected upon filing of the notice of appeal of approval
of the record on appeal either or. (perfection only)
It only loses jurisdiction over the case only upon expiration of
period to appeal:
15 days from receipt of the copy of judgment. So when that
already expires then the court loses jurisdiction.
Notwithstanding the loss of jurisdiction over the case, the trial
court can still act on certain matters on the case in the exercise of
residual jurisdiction.
Illustration:
Mr. A files a case against 3 defendants X, Y, Z.
A vs XYZ
Then judgment was rendered in favor of A, copies of judgment
were received by X Y Z on Jan 5, 10, 15, respectively.
Therefore, counting 15 days from receipt of the copies of the
judgment they have until 20, 25 & 30 of January respectively.
Suppose X, files a notice of appeal on January 8. When is the
appeal perfected? Ans: appeal is perfected on January 8 as to X
only.
When is the appeal perfected as to Y and Z? Ans: ang sagot niyo
the question is wrong. Because they never filed a notice of appeal,
so appeal can never be perfected as to y and Z.
Ang dapat tinanong, when does the court lose jurisdiction over the
case?
The court loses jurisdiction over the case after January 30.
Because the last day to appeal is January 30. By whom? By Z. who
received a copy of judgment January 15.
So by January 31, the court has no more jurisdiction over the case.
Notwithstanding that it has lost jurisdiction over the case, the trial
court can still act on certain of matters about the case in the
exercise of residual jurisdiction
Jurisprudence however, the exercise of residual jurisdiction can
only be done by the trial court as long as the records of the case
are still with the trial court.
Rules on appeal, 40-45 tignan niyo ang transmittal. Pag MTC to the
RTC 15 days. From RTC to the CA 30 days. So within that period.
(NOTE: ATTY BRONDIAL: PAG WALA NA KAYO MASAGOT SA BAR,
ANSWER IT INRELATION TO PRINCIPLE OF JURISDICTION. ☺ )
Let us summarize all the principles we have discussed for the last
3 hours:
1hr 4min
Principle on concurrent jurisdiction:
Hierarchy of courts
Transcendental importance
That the Supreme Court is not trier of facts
Jurisdiction as to its object
Venue is jurisdictional in criminal cases
Jurisdiction over the issues is determined by the allegations in the
pleading
Jurisdiction over the res is not necessary but if the court cannot
acquire jurisdiction over the person of the defendant and acquires
jurisdiction over the res then the case can continue
Jurisdiction over the subject matter is conferred by law
filing of the complaint and timely payment of correct docket fees.
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But marine mammals represented by owners. Environmental laws One suit for a single cause of action: Because if you bring out 2 or
ito. more suit from the same act or omission, you call that splitting a
Rule 1 General Provisions. single cause of action, and that violates the principle of multiplicity
Sec 4 & 5. of suits. 1 is to 1 lang dapat.
Although general provision states that this rule shall apply in all
cases. But they have suppletorily application in land registration EX: A leases unto B a property for 2 years, at the expiration, B fails
and cadastral cases, naturalization, election and in other which to surrender the property. A now files a case for recovery of
may be provided for by law. property. Suppose he also filed a recovery for unpaid of rentals.
2013 case (Sasan vs NLRC) (That will be splitting a single cause of action. Because it arose
But Ong Chia Case still good. (Naturalization) Documents were still from one act)
admissible even if they were not offered.
Followed by Sasan Case: Now. Even if there are only two parties in a case A vs B but they
Before the LA judgment was rendered, in favor of the have several transactions which are separate and distinct from
complainant, the nthe employer went up on appeal submitting each other, there are several acts or omissions.
several document and he complains that this should not be
admitted bec they were neven offered before the arbitration IF B defendant borrowed money from the plaintiff in January then
branch. SC: Rules of court is merely suppletorily. borrowed another same amount in April, and then in December.
There are 3 borrowing. How many act or omission will he commit
Sec. 5: Commencement of the action. Upon filing of the complaint if he fails to pay? Ans: 3. (Series of acts)
+ timely payment of docket fees.
Criminal Cases R.110, 2 ito. Will this violate multiplicity of suits? ANS: NO. Because this three
Criminal Action & Criminal Proceeding. borrowings are separate and distinct.

As to the criminal action upon filing of the complaint for purposes But don’t ever confuse this with joinder of causes of action. This is
of preliminary investigation. (Complaint you filed in the fiscal not the opposite of one suit for single cause of action.
office for purposes of P.I, this is commencement of criminal Ex: If B borrowed money from A, 150k January, then another 150K
action) (Note: Prescription is tolled upon filing of the criminal in april. Total obligation 300k on separate and distinct transaction,
action. by December on the same year he borrowed again 1M but this
time with security of REM. There were 3 separate and distinct
But commencement of criminal proceeding is upon filing of the obligation.
complaint (one filed in court) or information.
Can A file only one suit against B? ANS: YES.
Docket fees in criminal cases: Generally not required. Question can he file 3 cases? ANS: YES.
1. Complied with joinder of parties. (there’s series of
However if there is an allegation as to the civil liability and there transaction)
is an allegation as to the amount prayed for civil liability you have 2. It is of the same nature. (collection suit)
to pay docket fees. 3. As long as one is cognizable by RTC
If there’s no allegation to that, what happen to docket fees in 4. Totality rule (1,3M) thus with the RTC.
criminal cases?
You know have joinder of causes of action.
Because civil cases are deemed instituted with the criminal case
the docket fees is a lien, first lien on the judgment. Suppose A filed 150 and 150 in the same court plus foreclosure.
XPN: BP 22, you always have to pay the docket fees. (No Can he do that? Ans: No. because there is already a special civil
reservation kasi ditto) action. Violates the 2nd requirement
Can B file a motion to dismiss? Ans: NO. Misjoinder & Non joinder
Rule 2: Causes of Action.
of causes of action not a ground for dismissal. So what is his
The act or omission in violation of the right of another. Don’t get
remedy? Ans: Amendment. Who moves to amend? Pwedeng si A
confuse of section 3 of rule 6, is a complaint. Complaint is Plaintiffs
or B.
cause of action. Does that violate rule 2? Apparently it does.
Now suppose it was B who asked for amendment and A does not
want to comply, what should B do now? Ans: he can now ask for
Where lies the cause of action? It lies with the defendant, but look
dismissal. On the ground of failure to comply with the order of the
at the definition of complaint. May conflict.
court.
It is resolved by interchange of words. A complaint is “right of
Transcribe – Audio 3: Remedial Law
action”
Rule 3: Parties
There can never be a right of action if there is no cause of action.
So COA and ROA are the two sides of the same coin. Two banks of Section1. Who may be parties?
the same river. Correlative yan. Answer: Natural person, juridical person, and entities authorized
by law.
There are 2 principles:
One suit for a single cause of action & joinder of causes of action. So if Beings from the planet Mars invade Earth, can we sue
them?

Page 6 of 95
No, they are not natural persons. They are aliens. Just to
emphasize the point of natural person.
But if a man is born with one eye, three mouths, five noses, can
you sue him? Yes, because he is a natural person.
So what makes a person a natural person? One who is endowed
with reasons.
And what are the faculties of reasons? Intellect and will. Those
are the faculties of reason.
Intellect is directed towards truth. The will is directed toward
somun bonum (goodness). So as long as the person can exercise
that, he is a natural person. That is why, this is quite relevant,
because if you are presented with problem with natural person,
you can always think that way.
So why can’t we sue insane person or imbecile, generally
speaking? Because he has lost or does not have the full exercise
of his reasons.
Juridical person may also sue or be sued. That is another point.
How do you define juridical persons. Juridical persons are person
created by law. An example is a corporation.
Entities authorized by law. What are these? Under section 15 of
Rule, entities without juridical personality. Entities without
juridical personality can also sue and be sued. A classical example
of entity authorized by law is the estate of the person.
If XYZ presents themselves as a business enterprise, can it sue
and be sued? Yes, because they are entity authorized by law. In
fact under rule 14, how do you summon/ how does the court
acquires jurisdiction over these entities without juridical
personality. Like a partnership which is not duly registered, or
which is not accredited or registered with proper agency. Can
you sue the partnership? Yes, it is an entity without juridical
personality. But once it is registered, it will not fall under entity
without juridical personality but rather a juridical person.
Who may be parties? Natural person, Juridical person or entities
authorized by law. But even there is a natural person, a juridical But considering that the minor does not have the full exercise of
person or an entities authorized by law, still there is another
qualification, which is in Section 2.
Even if you are natural person, juridical person, entity authorized always be through parent or guardian, or in the absence of both,
by law, you cannot just sue and be sued. The 2nd qualification is
even more important that the 1st. Because, only parties in
interest can sue or be sued. This is strictly procedural.
Parties-in-interest, please memorize that, preferably verbatim.
Actually, this recurs every now and them. Pag may problem sa
party in interest, sagutin mo palagi sa Rule 3, Section 2.
Who is a party in interest? One who stands to be benefited or
injured by the judgment in the suit.
That is why, if you are suing as a representative party, under
Section 3, you are not actually a party-in-interest, you are only
representing someone who is a party-in-interest. That is why the Doctrine on indispensable party:
rule provides, that if you suing as a representative party, you
have to name the party in interest.
For example, you are the guardian, representing the ward, you
have to state who is the ward, if you are the administrator
representing the estate, you have to state which estate are you
representing. So this is very clear, representative party must
always state the party-in-interest. Because, that party cannot sue
or the suit would be inappropriate if he does not implead the
party in interest pursuant to section 2 of Rule 3.
Natural person, juridical person and entities authorized by law,
aside from that, he must be a party-in-interest. And who is a
party in interest, One who stands to be benefited or injured by
the judgment in the suit.
Yung sinabi ko na marine mammals, hindi pwede yun because it
is not a party interest. Unang una, not under section 2 but rather
section 1. It will not fall on either, natural person, juridical person
or entities authorized by law.
How about spouses?
“What has God has joined together, let no man put a sun there.
So they have to sue or be sued together. You look into the
exceptions.
The exceptions are when:
• A husband is suing for or relative to his capital property
or the the wife suing relative to paraphernal property
• Cases between or against each other
• Crime committed by one spouse
• Administrative case against one spouse against another
Ordinarily, they must be joined together. You tied this up also
with motion to dismiss under section 1 of rule 16, the conditions
precedent.
Ordinarily, under the present rule, the family code, hindi conjugal
partnership. The general rule is that absolute community. That is
why when the husband files, he must always include the wife or
when you sue the husband, you should always include the wife.
How about a minor.
A minor may be benefited or injured by the judgment of a suit.
his reason, his intellect and will, he must be duly represented.
While this is not a representative per se, but the rule provides
that even a minor or an incompetent, can sue and be sued but
guardian ad litem.
Under the rules there are two very important kinds of parties.
We call them indispensable parties or necessary parties. Know
the distinction. You just hold on to two word, to make the proper
distinction. An indispensable party is one without whom there
can be no final determination of the case. A necessary party is
someone without whom there can be no complete
determination of the case. Just hold on to these two words:
FINAL and COMPLETE.
BAR
Any judgment, decision or final order, without impleading an
indispensable party renders the judgment, decision or final order
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null and void not only to those who not impleaded but also to said that the municipality here is an indispensable party. So
those who where impleaded. You must always implead an whatever decision, judgment or final order rendered is null and
indispensable party. void.

A very good example of these are co-owners. General Rule: Co- Necessary Party
owners are indispensable parties. So if you do not implead an Someone without who there can be no complete determination
indispensable party, the judgment is null and void. But of the case. So even without impleading the necessary party, the
jurisprudence told us that co-owners are only indispensable case can go on and judgment can be rendered.
party defendants because when a co-owner files as a plaintiff, But look at section 9 thereof of Rule 3, it say there that if you do
only one co-owner is indispensable. not implead a necessary party, you have to give the reason why
he/she was not impleaded. Allege in your pleading why you are
Example. If H and W are husband and wife, and they live behind not impleading the necessary party, why there should be no
after their death A,B, C, D and E as their children, the A, B, C, D, complete determination of the case.
and E are co-owners of the property left by H and W.
What is the effect if you failed to implead the necessary party?
If A files a case against anyone, will that be valid to the aspect of You cannot run after him anymore.
indispensable party? Yes. A does not have to include B, C, D and
E because he is a party plaintiff. BAR
Exceptional case:
Suppose X would like to sue relative to co-owned property of A, An indispensable party was never impleaded by the SC said that
B, C, D and E, should A, B, C, D and E be impleaded as the judgment is valid. That is the judgment laid in the case of De
defendants? Yes. Castro v. Court of Appeals. In this case, there were five siblings,
they owned a property (co-owners). Two of the sisters entered
Suppose X only impleads, A and B, leaving C,D and E as non party into a contract of agency with X, authorizing the latter to sell the
to the case, what will be the judgment? The judgment will be null property. The property was finally sold pursuant to the contract
and void not only with respect to C,D and E but also to A and B. of agency. Thereafter, X filed a complaint against A and B,the two
sisters on the ground he did not receive the commission
Please read Cases: pursuant to the contract of agency. The two sister file a motion
Iglesia ni Cristo v. Ponferada to dismiss for failure to implead an indispensable party, C, D and
David vs. Paragas Jr. (source of BAR question) E, the other three sisters. When this reached the SC, the SC
Land Bank of the Philippines vs. Cacayuran sustained the doctrine which I have enunciated. While co-owners
re indispensable parties, but here, the judgment is valid because
Who were considered indispensable party? the kind of action is based on the contract of Agency (breach of
contract).
In the case of David vs. Paragas. The Corporation known as
Olympia, was never impleaded in the action. The action was only Landbank vs. Oliver
against the petitioner, Paragas and David and Co., never Oliver 1 secured a loan with Chinabank. It was secured by the
impleading the corporation which they were the property owned by Oliver 2. During the pendency of the loan,
stockholders/directors. Basic is the rule of Corporation law that Oliver 2 (true Oliver) said “I am the right Oliver, the one who
directors have separate and distinct personality from the contracted the loan is not the true Oliver.’’Oliver 2 filed a case
corporation itself. They have entered into Compromise against the Bank. The Bank moved to dismiss the case on the
Agreement. In the compromise agreement, the party considers ground of failure to implead an indispensable party (Oliver 1).
the property belonging to Olympia, which was never impleaded According the SC Oliver 2 is a third party, and therefore, Oliver 1,
in the complaint. When they have to execute the compromise the mortgagor is not an indispensable party.
agreement, it was raised, the Olympia Corporation was never
impleaded in the Original complaint. So if you have to execute When a mortgagee filed a case for the annulment of mortgagee.
the judgment against Olympia, it is totally unprocedural because The mortgagee is an indispensable plaintiff. And who will be the
you cannot execute a judgment against someone who is not a indispensable defendant? The mortgagor is an indispensable
party to the case and Olympia here as a corporation was now defendant. But in this particular case of Landbank and Oliver,
included in the compromise agreement when the case is take note that it was not the mortgagor who filed the case but
between incorporators. So how you could possibly implement? rather a third party so that the mortgagor there is not an
But what is more important here is that considering that the indispensable party.
property involve here is subject to execution belongs to Olympia,
you can never execute them and any judgment will be rendered Transfer of interest
null and void, including this judgment on compromise agreement The transferee is not an indispensable party. The transferee is
because an indispensable party which is Olympia, is not only a necessary party.
impleaded.
Relate this also with Rule 68. Under rule 68, which provides that
Land bank of the Philippines vs. Cacayuran, in action for foreclosure a real estate mortgage, you have to
In this case the members of the Sangunian bayan entered into a implead all persons whose rights are subordinate to that of the
contract of loan with a bank. Security for the loan is a property of holder of the mortgage. Are they indispensable parties? No. They
the municipality. But the municipality was never impleaded. SC are only necessary parties.
Page 8 of 95

Unwilling plaintiff
Unwilling plaintiff is one who does not want to join the prey.
What you need to do with an unwilling plaintiff? Sue him as
defendant.
Example: A, B , C ,D and E are brothers and sisters who are co-
owners of a property. A would to file a case and he asked B or C
or D or E to join him but refused. Can A possibly sue them? Off
course. But why he should do it? The principle is that only one co
–owner plaintiff is an indispensable party. But supposed he
wanted to implead them, he can do so, considering that they are
an unwilling plaintiff.
The most important Sections in Rule 3 are Sections 16,17 and 20.
Section 16. Death of a Party
Under section 16, when a case is pending and one of the parties
dies, what happens? You have to qualify whether the action
survives or the actions does not survive? If the action does not
survive, then wala na, dismissed na. But if the action survives, it
is the duty of the counsel of the decedent to cause the the
substitution of the decedent and he has to do that within a
period of thirty days. But please underscore that these does not
require for the appointment of the executor or administrator.
Why I emphasize that? Because upon the death of the person, he
is succeeded by the estate.
The counsel of the decedent does not have to secure the
appointment of the executor or administrator. Any heir can be
substituted. Exceptional, exceptional, that is why I give emphasis
to that. Tignan moa ng next paragraph.
Next paragraph provides that if after 30 days or if the counsel of
the decedent does not substitute, Should the case be dismissed?
No, the case should continue. But it is now incumbent upon the
counsel of the other party to cause the substitution. This time, he
has to make sure that there is an appointed executor or
administrator of the estate. So iba. Kapag ang nagsubstitute ay
ang counsel of the decedent, no need for appointment. He just
need to report that these are the heirs of the decedent. And if
they want, they have to appear within a certain period of time
and the case continues. But kung hindi ginawa yan, then the
other party will do it, But this time, he have to cause the
appointment of the executor or administrator of the estate.
This means that the appointment that appointment is judicial.
Now, if he does not do this, this is without prejudice.
This is an exception to the cutting of the lawyer-client
relationship.
But this provision applies only when the actions survives.
Section 17
When a public officer is incapacitated or dies or resigns, what
happens to the case? It is now incumbent now on the successor
whether to continue or not to continue. Hindi mandatory. The
successor may or may not continue the action upon the
incapacity, death or resignation of the public officer.
Section 20.
Very complicated. Apparently simple but complicated.
Contractual money claims. Sino ang namatay dito? Not the
plaintiff, it is only the defendant. And what is the nature of the
action? It is an action for money but based on contract, whether
express or implied. This is an example that of a case that
survives.
And when the defendant dies, the rule is, the case should not be
dismissed but shall proceed upon entry of judgment. It does not
say upon final judgment but up to final entry of judgment. And
you know very well than an executory judgment must be final
but a final judgment is not necessarily executory. And ang
continuation dito ng kaso is up to entry. In other words,
thereafter after the judgment has been rendered, execute and
satisfy the judgment. And how do you normally, execute and
satisfy a judgment, Rule 39, you file a motion for execution.
BAR
Is that applicable under Section 20? No. That does not apply in
section 20. Because to execute an entered judgment on
contractual money claims, you have to apply it as a claim against
the estate under Rule 86. Very exceptional because you do not
go to the usual route under Rule 39. Lumabas sa 2014 bar exam
pero indirectly.
When the defendant dies pendete lite in an action for sum of
money based on contract, either express or implied, the case
shall no be dismissed.
So may cross reference yan sa Rule 86. You will find out that
claims against the estate are limited only to four: funeral
expenses, expenses of the last illness, judgment for money and
money claims.
If the action is recovery of real or personal property, or any
interest therein or lien thereon, you do not apply 86, you apply
87, actions by or against executor or administrator.
Let us complicate further.
Suppose during the pendency of the case, the plaintiff was able
to secure a writ of preliminary attachment under Rule 57, so
during the pendency of the case the property is already attached
to secure the satisfaction of a favorable judgment. Then the
defendant died. What happens not to the attached property?
Will you apply the usual procedure in 57? You don’t have also to
proceed under Rule 39 or you immediately proceed to Sale on
attachment? Or you will go again in the settlement of the estate?
Answer: You have still to go with the settlement of the estate.
But the attached property is not discharged by the death of the
defendant. Hindi mawawala yung settlement of estate. Tuloy pa
rin.
Correlate also with Rule 130 (Evidence)
Section 23. Deadman’s statute disqualifications. Ano ang
requirements?
Four requirements (2 and 3 requirements):
2. Action must be against the executor or
administrator.
3. It must be a claim against the estate.
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Hindi ba conflicting? Why? Claims against the estate is in Section
5 of Rule 86. An action by the executor or administrator is under
87. So bakit yun ang kelangan ng deadman’s statute?
Conflicting yung two requirements. No. That’s not. The
interpretation of claims against the estate there is not under
section 5. In other words, even if you file the claim against
executor or administrator, the one ultimately liable is the estate.
You are not filing this against executor or administrator in his/her
personal capacity. But in his representative capacity.
Section 21, Indigent
Itatanong pa bay an sa bar? Hindi na.
Rule 4. Venue
Doctrine:
Venue is jurisdictional in criminal cases. But in civil case, the rule
in venue is not section 1 and 2, but rather Section 4. If there is
law that provides for venue, that must be followed. You cannot
do anything but to follow the rule. For example, Rule 66 quo
warranto. Under Rule 66, the venue must be the respondent’s
residence. The law on adoption, the rule on venue is the
residence of the adopter. The law on guardianship, the residence
of the ward is the venue of the action.
Paragraph a of section 4, is the general rule. In the absence of a
rule or a law, providing for venue, paragraph b. You go now to
the agreement od the party. The First thing you should note is
that the agreement must be entered into before the case is filed.
You cannot agree on the venue while the case is pending. It must
be before.
In order to be binding, the agreement must be couched in terms
of exclusivity and a word “shall” is not mandatory. It should be
stronger than than that. The term exclusively will do. In no other
place, this is a term of exclusivity. But a simple word “shall” is not
mandatory because the purpose of the venue is for the
convenience of the parties.
Read the following case:
Shaunfeld Doctrine
Sweetline vs. Teves (Contract of Adhesion)
BPI Savings Bank vs Sps. Cojuito, 2015 case. (BAR matter)
Subsidiary issue on venue. Extra-judicial foreclosure. Remember
that under extra-judicial foreclosure, walang deficiency
judgment. But is that proscribed absolutely? No. Of you want to
collect your deficiency in an extra-judicial foreclosure, you have
to file a separate action. In this particular case, mayroong
deficiency. The deficiency was brought in Makati when the
properties was found in manila and according to the respondent, Motion to dismiss is a prohibited pleading under Rules on
the case should be dismissed on the ground of improper venue.
Why? Because this deficiency judgment is just a continuation of
the original foreclosure action. The SC said, this is different. This with the conciliation proceeding under the barangay conciliation
is extra-judicial foreclosure. So that a separate action is no longer procedure rule (pre-maturity).
a real action but rather a personal action. And because it is a
personal action it must be brought with the residence of the
plaintiff or defendant at the option of the plaintiff. Hindi na eto
real or quasi-real action. Dun kayo possibleng tanungin.
The rule provides that in the absence of an agreement, apply
sections 1 and 2. If it is a real action, venue is where the property
or portion thereof is located. When it is a personal action, then,
at the residence of the plaintiff or any principal plaintiff or
defendant or principal defendants at the option of the plaintiff.
What are the basic distinction between venue and jurisdiction?
Jurisdiction is the authority while venue is the place. Venue is not
conferred by law and can even be subject to agreement but
jurisdiction is conferred by law and cannot subject to agreement.
And hence, as consequence of that, venue is waivable while
jurisdiction is not. Finally, venue creates relationship between
the parties while jurisdiction creates relationship between the
court and the parties.
The present rule now is that no waiver of venue when you fail to
file a motion to dismiss on the ground of improper venue.
Because venue now may be raise as an affirmative defense in
your answer. But once you fail to raise that in your answer, that
is where the waiver lies.
Rule 5. Uniformity
Summary Procedure (1991 Revised Rule)
Amendments not yet incorporate in the revised rule:
1. Limitation on the attorney’s fees (no longer applicable)
Salient points:
1. Summary procedures apply only in the lower courts.
There is no summary procedure in the RTC or higher
courts.
2. In summary procedure, there is not trial. In lieu of trial,
parties submits position papers, affidavits, depositions.
On the basis of these papers and affidavits, the court
renders judgment. If there are things need to be
clarified by the court, then the court may motu proprio
set a date for clarificatory questions.
Exceptions is in criminal cases, criminal cases there is
half trial. While it is covered by the Rules on Summary
Procedure, there is still confrontation by the accused
against his/her witnesses. One of the rights of the
accused is to confront the witnesses against him and
that can only be done through trial.
3. The prescriptive procedures are shorter than regular
procedure.
4. There are prohibited pleadings. Take note of this
prohibited pleadings because we will going back to this
on writ on amparo.
Summary procedures. Is that absolute? No, may exception: (1)
MTD on the ground of lack of jurisdiction (2) non-compliance
Demurrer of Evidence is a form of motion to dismiss. Is it a
prohibited pleading? The answer is no. Why? (1) The demurrer is
for the purpose of expediting. (2) What the law does not include
it excludes. In the law, demurrer to evidence is not a prohibited
pleading.
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How about motion for reconsideration? Are they prohibited
pleadings? Yes, but take note. Motion for reconsideration of a
judgment. So if it is an interlocutory order, motion for
reconsideration is not a prohibited pleading even under the rules
of summary procedures.
If a case is handled by the MTC under the Rules on Summary
Procedures, and judgment was rendered and it was appealed, it
is no longer covered by the rules on summary procedure. Kapag
umakyat na yan sa RTC or higher, regular procedure na.
Rule 6: Kinds of Pleading
Imagine five lines. Line 1, line 2, line 3, line 4 and line 5. These kind is specific denial of the allegations in the complaint. And the
are connecting lines between the plaintiff and the defendants. So second one is lack of knowledge sufficient to form a belief as to
let us give one plaintiff here A as against defendant B and C.
A is the plaintiff. B is the defendant
1st line from A to B, represents complaint.
2nd line from B to A, represents answer.
3rd line from A to B, represents reply.
4th line from B to A, represents counterclaim.
5th line from A to B, represents counter counterclaim.
So that is to the maximum the pleadings referred to in Rule 6.
A line connecting B to C or C to B represents the cross-claim. So
when you hear the word cross-claim, alam nyo agad kung saan
yun. If there is only one defendant, there is no cross-claimant.
Hindi magkakaroon ng cross claimant.
There are other several lines between C and B because cross
claim must also be answered. And there is also counter cross-
claim. There can also be a counter counter cross claim.
Now if C impleads for example D. Who will be D? D would be the
third-party defendant. And C would be the third-party plaintiff.
And this line would represent the third party complaint.
If D impleads X for example. X would be the fourth-party
defendant. In relation to what? Not in relation to the third-party Negative pregnant.
defendant, but rather to the fourth-party plaintiff. Plaintiff si D as Negative pregnant is a sign the of contradiction. Because when
far as X is concern.
So these are the different kinds of pleadings. The last party that
we discuss was the intervenor, E. So what is his position in
relation to the pleading? He crosses the entire action. Under Rule
19, it says there that the intervenor must have interest over the
subject matter or he must have interest in favor of the plaintiff or
interest in favor of the defendant, as the case may be.
So pag meron kayong mental picture nitong relationship, it is not
difficult to analyze the problem. Pag binasa nyo halimbawa isang
kaso, Asian Development Corporation vs. Court of Appeals, you
get lost along the way because the case uses co-defendant, then
counter claimant, then third-party, fourth-party, so ang dami, so
you get lost along the way. But with this mental picture, you
never get lost along the way.
Let us discuss them one by one.
Compliant
The first pleading is the complaint. Section 3 of Rule 6 says that
the complaint is the pleading alleging the plaintiff’s cause or
causes of action. We discussed that already in relation to Rule 2.
Answer
How about the answer? The answer is the pleading emanating
from the defendant is response to the complaint. What is
constituted in the answer? Defenses.
Under the rules, there are two general kinds of defenses. It can
either be negative defense or affirmative defense. And what is
negative defense? Negative defenses are of two kinds. The first
the truth of allegations of the complaint.
These are the two kinds of specific denial. When you deny the
allegations in the complaint, which is found in your answer, it is
not specific simply because you are using the word “specific”.
When you say “I specifically deny the allegations in paragraph 2
of the complaint.”, that will not be a specific denial.
So how do you specifically deny, give the reason, give the basis
for your denial. “Defendant specifically denies the allegations in
paragraph 5 of the complaint, the truth of the matter being that
…” Ibibigay mo yung reason. Being that, I never borrowed
Php50,000 from the plaintiff. So may rason ka. But to put an end
after denying it or using the word specifically, does not amount
to specific denial.
In the second kind of specific denial, baliktad naman ang
ginagawa ng mga abogado. Example: As to paragraphs 8,9 and
10, defendant has no knowledge sufficient to form a belief as to
the truth of them or those allegations. Period na dapat, huwag
nyo ng dadagan “and therefore, they are denied.” Otherwise,
you are contradicting yourself. If don’t have any knowledge
sufficient to form a belief as to the truth of the allegations, how
can you deny that? Wala ka ngang knowledge eh.
you are pregnant, you are positive. But this is an instance when
you are claiming you are pregnant but you are negative. It is a
denial pregnant with admissions.
So when is there a denial pregnant with admissions? When the
allegations is a simple declarative sentence, negative pregnant
will not apply because there is no qualification in the allegation.
Example, defendant borrowed Php50,000 from the plaintiff, wala
jan, that is a simple declarative sentence. There can be no
negative pregnant applicable there. You either deny it or admit
it. Hindi pwedeng deny pregnant with admission.
Baguhin natin, let make the allegation/sentence more complex.
“Defendant borrowed Php50,000 from the plaintiff while the
plaintiff was washing her clothes. You deny it. “I did not borrow
Php50,000 while plaintiff was washing her clothes. Negative
pregnant. Bakit? Because when you deny that you never
borrowed money from the plaintiff while the plaintiff was
washing her clothes, you must have borrowed sometime, while
doing other things, (perhaps, while going to the market). Yun ang
concept ng negative pregnant.
Page 11 of 95

Landmark case on negative pregnant:
1972 case of Galopa v. Ni Bong Sing
Latest cases:
Republic vs. Sandiganbayan. Eto yung kaso ni Emelda Marcos.
The Republic of the Philippines before the Sandiganbayan
charged the Marcoses of having stolen millions of dollars and
deposited it in seven Swiss bank accounts. Allegations yan. Ano
ang denial ng mga Marcoses, “we never deposited money in
seven Swiss bank accounts”. Negative pregnant yan, baka you
deposited it in twelve Swiss bank accounts not is seven Swiss
bank accounts.
Affirmative Defenses.
When the defendant puts up an affirmative defense, it means
that he is admitting the allegations. There is an implied or
hypothetical admission when the defendant puts up an
affirmative defense. But, in putting up that defense, the
defendant he uses other matter in defense of his position. Under
the rules, andami jan. The enumeration is not even exclusive. But
some will give you an idea what an affirmative defense is. Like
payment, collusion, statute of frauds, statute of limitations,
prescription. When the defendant says of payment, he is
hypothetically admitting that he really borrowed the money from
the plaintiff and by borrowing money, he admits the allegations
that he owes the plaintiff. However, he is no longer liable
because he has paid it.
These is very pronounced in criminal cases. In criminal cases, if
you are charged for a crime, and you put up an affirmative
defense, it means, that you have done the charged. But you put
up something to contravene the claim, to defend yourself from
any liability.
BAR
Lumabas yan sa BAR. Akala mo the question is Evidence but the
answer is actually in Rule 6. Question: What is an affirmative
defense? its effect.
If an accused is charged for the crime of murder, and he puts up
an affirmative defense of self-defense. It means that he really
killed the victim. But in so doing, he is nonetheless not criminally
liable. Otherwise, he would have killed. Ang defense, affirmative
defense.
When the defendant or the accused puts up an affirmative
defense, the effect of that is REVERSE TRIAL. Evidence na yun.
Kaya nga pag tinanong ka “What is a reverse trial?”, kung di mo
alam ang affirmative defense, di masasagot yun. There is only a
reverse trial when the accused/defendant puts up an affirmative
defense. In the order of trial under Rule 132, nalakagay dun
mauna muna plaintiff pagkatapos ang defendant. When the
defendant/accused puts up an affirmative defense, ano pa ang
evidence in chief ng plaintiff? Wala na, admitted eh. So ang
magprerpesent na ng evidence would be the accused.
Charged for Murder. Affirmative defense of self-defense. So
admitted na the fact of killing. So hindi na magpuput-up ng
evidence in chief yung prosecution. It is now incumbent upon the
defense to put up its defense, yung evidence in chief nya sa self
defense. After that, ang mga susunod na, yung prosecution. The
prosecution will put up rebuttal evidence.
Reply
Under the rules, reply is the answer/response to the answer.
If you do not file a reply, the allegations in the answer are
deemed controverted. You are in effect denying the allegations
in the answer. So you do not need any reply. However, there
instances where reply is necessary. When the answer puts up a
defense which is totally alien from the allegations in the
complaint. Then there is a requirement for a reply.
Example. Rule 8, section 7 & 8, actionable documents. When the
defense puts up an actionable document, kelangan yung reply.
Because if you don’t, the Rule provides that it is deemed
admitted. Which is admitted, the authenticity and due execution
of the document. They must be denied specifically under oath.
General Rule: No reply is necessary. Exception: When the
answer puts up new matters.
Counter claim
The counterclaim is the complaint of the defendant against the
original plaintiff. Hiwalay na pleading ang counterclaim. It is a
different pleading from an anwer.
May a plaintiff be declared in default?
The answer is yes. The plaintiff may declare in default relative to
a permissive counterclaim. Because the counterclaim is separate
and distinct from the answer.
In the counterclaim, there are two kinds. The compulsory
counterclaim and permissive counterclaim. Docket fees are
required only in permissive counterclaim. Compulsary
counterclaim do not require the payment of docket fees.
When it is compulsory and when it is permissive?
It is compulsory when it arises from the same cause in the
complaint. From that complaint, arises the counterclaim.
Without the complaint, there can be no compulsory
counterclaim. Remove the complaint, the compulsory
counterclaim will have no legal leg to stand on. What gives rise to
the compulary counterclaim is the complaint.
Permissive, in the other hand, does not arise from the allegations
in the compliant. Classical illustration: Alday vs. FGU. Cited by the
by the SC are the requisites/ determinants of a compulsory
counterclaim:
(1) Evidence test rule
(2) Res Judicata rule
(3) Litis Pendencia
In that particular case, Alday, is an agent of FGU Insurance. FGU
insurance filed a case against Alday for non-remittance of
premium.
In her counterclaim, Alday said that she was not given her
bonus/commissions. And because of the complaint, she contends
that she suffered sleepless nights, wounded feelings, moral
damages and also to show good example, she also entitled to
exemplary damages. And for the fact that she was force to
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secure the services of the counsel, she is entitled to Attorney’s
fees. Yun ang counterclaim. Sabi ng FGU, dismiss the
counterclaim for non-payment of docket fees. Sabi ng SC, sandal
muna, tignan muna natin ang counterclaim ni Alday. Mayroon
siyang permissive counterclaim at meron siyang compulsary
counterclaim.
Bakit nagkaroon ng wounded feelings, besmirch reputation,
sleepless nights si Alday? Because of the complaint. This is a
compulsory counterclaim.
Pero yung claim for the unpaid bonuses, commission, it did not
arise from the complaint of FGU and therefore, this is a
permissive counterclaim, for which, Alday should pay docket
fees.
Relate to Rule 17, Section 2.
Counter counterclaim
The complaint of the plaintiff brought about by the counterclaim.
Intervention
Under Rule 19
Cross-claim
The cross-claim is that the defendant is asking for subrogation,
indemnification and contribution.
If A files a case against B and C for sum of money for Php100,000. Kasi, lalabas yan sa BAR.
But may agreement si B and C that what B borrowed from A in
the amount of Php100,000 will go only to B. C may file a cross-
claim against B.
Against a cross claim is answer to the cross claim. Against an
answer to the cross-claim, pwede rin reply. It defends, if it is
applicable, or also a counter cross claims, as the case may be.
What I would like to emphasize here, is that when a B or C files
an answer to the cross claim, he can already allege in his answer
to A. Ang sagot ni B kay C is not only against C but also against A,
who is also the principal plaintiff. Because between B and C, C is
the plaintiff and B is the defendant.
And that principle holds true also in a case of a third party
defendant.
When D, files his answers to the complaint of C, he answers also
the complaint of A against C. Kasama na un dun.
So these are the different pleadings.
Rule 7: Parts of the pleadings
Review your subject in legal forms. Anong importante sa Rule 7,
Sections 3,4, and 5. Signature and address, verification and
certification against forum shopping.
Signature and Address
Who should sign the pleading? The pleader.
And who is the pleader? If is should be the plaintiff, the plaintiff.
If it should be the defendant, the defendant. However, if the
party is represented by a lawyer, the lawyer must sign. Not the
party himself.
So it is wrong to say that plaintiff and defendant, cannot not sign
the pleading. They can sign, If they are not represented by a
counsel. But if they are represented by a counsel, their signature
would be incomplete. It must always be signed by the counsel, by
the lawyer. Unlike verification and certification against forum
shopping under Section 4 and 5. Verification and certification
against forum shopping must be signed by either all the plaintiff
or by any plaintiff who are duly authorized to sign for and in
behalf of the others.
Where lies the distinction between verification and certification
against forum shopping?
In the case of verification, it is not jurisdictional. Therefore, it is
subject to amendment. If you failed to verify the pleading and
the verification is required, you may ask for the delayed
verification of the pleading because it is not jurisdictional.
In the case of certification against forum shopping, it is not also
jurisdictional. However, it a ground for dismissal. Kapag walang
certification against forum shopping, the count may dismiss the
complaint either on motion of motu propio for lack of
certification against forum shopping.
BAR
Memorize verification and certification against forum shopping.
If you were asked to prepare a pleading, huwag ng mag isip pa
kung lalagyan ng verification and certification of forum shopping.
Kasi even if it not required and you put one, wala kang
deduction. But if is required and you did not place one, meron
kang deduction. But be careful, unless the question itself
provides that no verification is required.
Who will verify and certify against forum shopping?
Even if the party is represented by the lawyer, it should be the
party himself who should sign in the verification and certification
against forum shopping.
What is the general rule? All the parties (plaintiffs or defendants)
should sign the verification and certification against forum
shopping. Exception: If one of the parties is duly authorized by
the others (co-plaintiff or co-defendant).
Corporate parties
It must be verified and certified against forum shopping by the
authorized representative of the corporation as provided in the
Board Resolution (not special power of attorney).
Read case of Iglesia ni Cristo vs. Ponferada
In the case, parties are co-owners. If plaintiffs are co-owners,
only one of the co-owners will suffice in signing the verification
and certification against forum shopping. But if they are
defendants, all of them (co-owners) must sign the verification
and certification against forum shopping.
Rule 8: Manner of making allegations in the pleading
Important Provisions:
Page 13 of 95
Section 7 and 8: Actionable documents. Take note of this as we
will compare this with Modes of Discovery under Rule 26.
Tie up Rule 8 with Rule 7, Parts of Pleading
Start with jurisdictional facts.
Special considerations under rule 8.
If you alleging fraud, you have to allege that with particularity.
You cannot just say, the defendant committed fraud or failed to
comply with his obligation fraudulently. Kulang yan, that is a
wrong allegation of fraud because fraud must be allege with
particularity unlike malice or other conditions/state of the mind.
In connection with fraud, when you allege fraud, you have an
affidavit of merits. Affidavit of merit is required in an allegation
of Fraud. However, as a matter of jurisprudence, if you explain
what constituted fraud, in the body of you complaint, you do not
need to execute an affidavit of merits.
When you allege judgment, you do not need to allege whether
the judgment was rendered of court with valid jurisdiction.
Bakit? Because of disputable presumption that you under Rule
31, he who disputes it has the burden of proof.
Actionable Documents
Actionable documents are written materials or written
documents that used as the basis of one’s cause of action or
defense. If you are collecting a sum of money based on
promissory note, the promissory note is an actionable document.
If you are answering a case of annulment of document, you are
the defendant and you include in your answer the deed of sale,
as a matter of defense, you also using an actionable document.
Whoever uses an actionable document, whether the plaintiff or
the defendant, the adverse party must deny it specifically under
oath. Meaning to say, that whether it is initiatory pleading or
not, you have to verify the pleading. Remember, under Rule 7,
verification is required only in initiatory pleading. But if a plaintiff
uses an actionable document, your answer as a defendant must
also be verified. Ordinarilly, an answer need not be verified. But
if the complaint contains an actionable document, answer must
be verified.
How do you allege an actionable document? Two ways
1. Copy the document verbatim in your pleading; or,
2. You can only copy the substance of the document and
attach the copy of the document in the pleading.
How do you contest actionable documents? You contest it by
specific denial under oath.
Reason. In order to contest the authenticity and due execution of
the actionable document.
Case:
Benguet Exploration Incorporated vs CA.
SC provides that when you deem to have admitted the
actionable document for failure to specifically deny under oath.
You are only admitting the following:
1. That the document was signed
2. That the document appears what it is now (meaning no
alteration)
3. That the document was delivered
4. That all the formalities of the document have been
complied with the formalities
Yun lang ang admission. Baka bigyan kayo ng problem ha about
lack of verification, look at the consequences. Admission means
that you have admitted only the authenticity and due execution
of the document. You are not admitting the content/s of the
document.
Exceptions that you need not deny the documents under oath:
1. When you are not privy to the document (meaning you
are not a party to the instrument)
2. When you asked for the production of the document
and it was not complied with.
But you still have to deny them. Otherwise, deemed admitted.
What is not required is to deny them under oath. But you still
have to deny them.
Rule 9: Effect of failure to plead.
Rule 9 has good batting average in the bar. 60-70% asked in the
bar. Other topics with high batting average: Jurisdiction,
Certiorari.
Section 1. Residual prerogatives
Residual prerogatives is the authority of the appellate court to
dismiss the case motu proprio on the grounds provided for under
Rule 9, Section 1. (Res judicata, Litis pendencia, lack of
jurisdiction over the subject matter, prescription). On this
grounds, the appellate court may dismiss the case even without
a motion. Where else, aside from these grounds, you have 3
more grounds under Section 3, Rule 17, when the court may
dismiss the case motu proprio. Ano yun? Failure to present
evidence-in-chief, failure to appear for so long a time, failure to
comply with any order of the court. In addition, in summary
procedure the court may dismiss the case motu proprio.
Section 2. Compulsory counterclaim
You have to invoke it, otherwise, deemed waived. Is that
absolute? No, under section 10 of Rule 11, omitted counterclaim.
If you omitted a counterclaim by reason of inadvertence,
oversight, excusable negligence, you can still avail of
amendment.
Substance of Rule 9 is found in section 3. Principle for Default.
Under the present Rule, isa nalang ang ground for default.
Failure to answer/responsive pleading within the prescriptive
period. Wala na pong iba. Iisa nalang, wala ng iba.
Whether a plaintiff can be declared in default? Yes. why? Is the
plaintiff also required to file a responsive pleading? Of course, if
the defendant interpose a permissive counterclaim and the
plaintiff does not it answer, therefore the plaintiff can be declare
in default relative to the permissive counterclaim.
How may a party be declared in default? Never motu proprio. To
declare the party in default, the other party must always file a
motion. And the motion to declare the party in default is a
litigated motion. When I say litigated motion, it is a motion which
have to comply with Sections 4,5 and 6 of Rule 15 Motion. It
Page 14 of 95
must be in writing. It must set for hearing. It must be served to
the adverse party.
Motion to declare the adverse party in default, is a litigated
motion. That cannot be done motu proprio. The court has to wait
for the other party to file a motion to declare the other party in
default. And because this is a litigated motion, it must set for
hearing. And only after the hearing, the other party can be
declared in default. Then the court issue an order of default.
Order of Default should not confuse with Judgment by default.
Ibang-iba yan. The order of default is pursuant to motion of the
party to declare the other party in default. The effect of that if so
granted is an order of default. This order of default can only be
set aside in one way, that is another litigated motion, to set aside Good for your reading, this is the case of Palileo vs Planters
the order of default.
Attention to the case of Banco De Oro vs. Tan Si Pek. In that case, doctrine actually is not a doctrine. In this particular case, the
the SC said that there is only one remedy against the order of
default, and that is a motion to set aside the order of default.
Because in this case, the defendant filed a motion for
reconsideration of the order of default. SC said that a motion for
reconsideration for an order of default is not the proper remedy
to restore the party who default in good standing. There is only
one remedy to for the defendant and that is to file a motion to
set aside the order of default.
answering defendant is common to all the defendants, then it
will be advantageous to all of them. But if the defense put up by
the answering defendants, apply personally to him, then he
cannot avail/ get advantage out of that.
Pending Audio
BAR MATTER : Service of Pleadings thru private
courier – not a valid service;
: Motions
: Motion to Dismiss – Res Judicata;
Conclusiveness of Judgment
Development Bank. This is October 2014, 738 SCRA (738 SCRA 1,
October 8, 2014). Now, what is this all about - let us discuss the
pleading was served through private service courier, (yung) LBC. It
so happened that at that time in Cotabato there was still no LBC.
The sender realizing that it could not be delivered within the
required period, followed it up with another service by registered
mail. The service by registered mail, however, was one day late
and when this reached the SC, among others, the issue was that
the service of pleading by private courier a valid one?

The Supreme Court in this particular case was very careful in its
What is the effect if the order of default is issued against the
statement; I think it was thru Justice Del Castillo, saying that
defaulted party? The defaulted party losses his personality
before the court. That means that he can no longer participate in service of pleadings by private courier is NOT provided for in the
the proceeding. But he is entitled to copies of the proceedings Rules of Court. It does not say that it is allowed neither does it say
even if he cannot participate in the proceedings. that it is prohibited. It simply says that it is not provided for in the
Rules of Court so the consequence of this hindi mo makikita ung
From the order of default if it cannot be set aside, then the court rationalization in the case of Palileo vs planters Development Bank
may render a judgment. The judgment is known as the judgment kung gusto mo makita ang rationalization you look at the footnote
by default. Don’t ever confuse that with the order of default. A and under the footnote you are referred to another case, the case
remedy against a judgment by default, andaming remedies yun. of Heirs of Numeriano Miranda vs Miranda (G.R. No. 179638, July
All the remedies against a judgment applies thereto. Basically, 8, 2013, 700 SCRA 746) which was decided by the same ponente
motion for reconsideration, new trial and appeal because this is a one year ago, 2013, kung bakit prohibited, nilagay dun not allowed
judgment. There can be no judgment by default without being
na ung service by courier, because you cannot determine the
preceded by an order of default.
prescriptive period. Because in the registered service the rule is
Order of default first then judgment by default. You have a very clear that the counting of period is from the time that you
remedy for the order of default and you have also remedy for send it thru the postal service, ung stamp dun that is the date of
judgment by default. Yan lang. posting, that is the date of filing. But in private couriers there is no
provision as to when (like in this particular case when at the time
Exception: When a court can render a judgment by default there was no LBC in Cotabato) so you cannot determine kung
without an order of default? kailan un and the service by registered mail was simply an
Non-compliance with the modes of discovery under Rule 29, admission, according to the Supreme Court, that service by the
Section 3, paragraph c. That is the only instance when the court private courier depends on whether that is received on time. If it
may render a judgment by default without being preceded by an is received on time well and good, no question about it but you
order of default. cannot say, since there is no provision in the Rule, that upon
delivery of that pleading with LBC that is the date it is posted. So
Ano yung Partial Default? Bakit partial default?
you check that out, Palileo vs Planters Development Bank.
Because this is an instance when there are several parties to the
case. Walang partial default if there is only one defendant or one And let me connect this with Judicial Affidavit Rule, under the
plaintiff. When there are multiple parties (defendant for Judicial Affidavit Rule it is specifically provided that service of
example), some answered while other do not, then you have Judicial Affidavit to the adverse party can be done by private
partial default.
service couriers. Remember that last year there was a question on
Judicial Affidavit Rule. Tatlo lang ung question sa evidence. And
When there is a partial default, what is the effect of that to the
defaulted party? It depends, if the defense put up by the one of that was Judicial Affidavit. Can u imagine tatlong questions

Page 15 of 95
lang sa evidence last year’s bar exam and one of that was Judicial
Affidavit Rule and also what I have forgotten...ung Section 11, the
priority of personal than any other mode kasi inaabuso ang
registered service by lawyers. The counsel for the plaintiff has his
office on the 42nd floor of Pacific Bldg. in Makati, yung kalaban
nyang opisina was on the 6th floor of the same Bldg. how would he
serve pleading by registered mail. Because they are buying time
kaya... nilagay ung Section 11 of Rule 13 that when you avail of
service of pleadings other than personal service, then you have to
state the reason why. Hindi naman sinabi na state a valid reason.
Magsabi ka lang ng reason, ako ginagawa ko lagi by reason of
convenience and practicality..kung minsan sinsabi ko because of
the horrendous traffic situation in Metro Manila (judicial notice
yan...). Kahit lakarin mo un..anyway just give the reason.
And also let me point out to you that substituted service of
pleadings is different from substituted service of summons. Ang
layo ng distinction nyan. Substituted service of pleading must be
given or submitted to the clerk of court. When you serve it on or
at residence or office of the adverse party it is still personal pag
dating sa pleadings.
Now regarding judgements, judgment cannot be served by
substituted service. So ano ang gagawin mo..move for leave of
court to have it published..by publication.
Let’s move on now to Rule 15. Just a few words about Rule 15, the
title of Rule 15 is motions. Are motions pleadings? YES, they are
kinds of pleadings. Are pleadings motions? NO. Motions are kinds
of pleadings but pleadings are not kind of motions because when
you file a pleading you are asking for a general relief as against a
motion where you are praying for a particular relief.
Motions are of two kinds. It can either be a litigious motion or a
non-litigious motion, also called litigated or non-litigated. To be a
valid litigated motion it has to comply with Sections 4, 5, and 6 of
Rule 15. Now non-litigated motions do not have to comply with
Sections 4, 5, and 6. Ordinarily, these non-litigious motions are
oral motions. This can be done orally but there are certain written
motions that are non-litigious. Example: motion for extension of
time to file pleading or motion for cancellation of date of trial or
date of presentation of evidence but you always have to serve
copies of these to adverse party but you don’t set that for hearing.
As a general rule when you file a motion with the Court of Appeals
and the Supreme Court, never, never set it for hearing because
hearing before these appellate courts, especially the Supreme
Court, is not a matter of right. So you never set for hearing any
motion you filed with Supreme Court or Court of Appeals because
it is not a matter of right, it is a matter of discretion on their part.
Now what are Sections 4, 5, and 6 which are the requirements of
a litigated motion? Section 4 tells us that a litigated motion must
be in writing, and the 2nd paragraph thereof tells us that you have
to comply with the 3-day notice rule. The 3–day notice rule means
that the adverse party must have received a copy three days
before the scheduled hearing. So that even if you send it within
that period if the adverse party was unable to receive it three days
before the scheduled hearing, there is non-compliance of section
4. The point here is not the time of sending but the time of receipt
of the copy of your motion. Dapat matanggap ng kabilang partido
three days before the scheduled hearing and under the same Rule
the regular hearing day on motion is a Friday. Regular yan
although that’s not mandatory. Assuming that the court follows
the regular day for the motion which is a Friday, you must cause
that the pleading you served on the adverse party must have been
received on or not later than Tuesday. When u get to be practicing
lawyers before you file a motion and set it for hearing call up the
clerk of court, tanungin nyo muna what is your day on hearing on
motion...Ung point of reference three days before the scheduled
hearing. However, take note of Section 5, eto ung 10-day setting
rule, don’t confuse that with the 3-day notice rule. These 2 rules
must both be complied with with regard to motions: 3-day notice
rule, 10-day setting rule. And you count the 3-day notice rule
based on the setting rule. That it must be received by the adverse
party three days at least before you set it for hearing. So if u set it
on hearing, as I said, on a Friday, it must be received not later than
Tuesday. Anyway, yung 10-day setting rule, when you file your
motion doon sa baba you have to comply with the 10-day setting
rule, so bibilangin mo, that when you file it, you have to set it
within a 10-day period from the time you file it. Not more than
that. So suppose you file your motion on a Monday, so...ung 10-
day setting dapat it must be set thereon. Kaya ko-computin nyo
ng mabuti baka ma-technical kayo dun sa 10-day setting rule.
In case of conflict between the 10-day setting rule and the 3-day
notice rule, which should prevail over which? First, before we
answer that, can there be a possible conflict between the two?
Definitely there is. There can be a conflict. Sometimes you cannot
comply with both. The requirements in the Rules is that you
comply with both these periods..pero mangyayari there are
situations when definitely you cannot comply with these rules. I
am a practicing lawyer here in Manila, my case is in Davao City.
Alangan naman pumunta ako ng Davao para i-file ko personally,
motion lang yan. Pupunta ako dun pag naka set ko na ung motion
for hearing...If you file it by mail, if you are going to comply with
the 10-day setting rule, chances are you will not be able to comply
with the 3-day notice rule or if you are going to comply with the
3-day notice rule chances are you cannot comply with the 10-day
setting rule. Pagpadala mo pa ng registered mail darating un dun
15 days after...this Rule 15 is still very active and very much
applicable. So in case of conflict which should prevail over which?
The 3-day notice rule must prevail over the 10-day setting rule.
What is the rationale because the 10-day setting rule affects only
the calendar of the court while the 3-day notice rule maybe
prejudicial to the rights of the adverse party. So you must comply
with the 3-day notice rule in case of conflict between the 10-day
setting and 3-day notice rule.
Section 8, omnibus motion rule. The word suggests its meaning.
When your file a motion, allege all the available grounds that
which is not alleged is deemed waived, in your motion. A very
good example of this would be Rule 37, yung motion for new trial.
When you file ung motion for new trial, allege all available grounds
if you do not avail any of those grounds available, you are
considered to have waived it, that is why under Rule 37 on new
Page 16 of 95
trial, you ask: can you file a second motion for a new trial? The Number 3 that venue is improperly laid, wala to. That the plaintiff
answer must be distinguished. If your 1st motion for new trial is has no legal personality, paragraph E that there is a pending action
newly discovered evidence you cannot file a 2nd motion for new between the same parties for the same cause that the cause of
trial. Why? Because the grounds are available already, fraud, action has been barred by prior judgment or the statute of
accident, mistake, excusable negligence. But if your 1st motion for limitations, that the claim or demand asserted has been paid,
new trial is grounded on either fraud, accident, mistake, excusable abandoned, waived, or extinguished. That the claim is
negligence, you can still file a 2nd motion for new trial because your unenforceable under the statute of frauds, that condition
2nd ground which is newly discovered evidence is not available. So precedent have not been complied with.
you cannot include that in an omnibus motion pero pag nag file ka
So you noticed that we have taken up almost all the grounds. Ung
ng newly discovered evidence there must be Fraud, Accident,
1 and 2 jurisdiction, we took that up yesterday, jurisdiction over
Mistake, Excusable negligence that is why pursuant or in relation
the parties, jurisdiction over the subject matter. Tapos na natin
to the omnibus motion rule, you are not allowed to file a 2nd
yan.
motion for new trial under that instance.
Ung number 3, that venue is improperly laid, we took that up
Finally, (Section) 9, eto yung leave of court. Whenever you ask for
already in Rule 4. That the plaintiff has no legal personality to sue
leave of court you already have to attach the appropriate pleading
we took that up already in Rule 3.
or the necessary pleading in your leave of court. Halimbawa
itanong sainyo, state the instances where leave of court is Ung 5 that there is another action pending between the same
necessary. Naku ang dami nun. Maguumpisa ka sa Rule 6 diba, ung parties of the same cause, litis pendentia, we took that up already
third party complain, 4th party complaint, yan kailangan leave of in Rule 2, one suit for a single cause of action. So nandyan na lahat.
court, intervention, depositions, kailangan mo ng leave of court.
Demurrer in criminal cases, kailangan ng leave of court. What does Etong susunod hindi pa. That the cause of action has been barred
Section 9, may parenthesis dyan may letter (n), ibig sabhin nun by prior judgment or by statute of limitations. Hindi pa natin
bago yan. And I told you about this. This somehow amends Section nakuha yan because the provision on res judicata is found in
23 of Rule 119, demurre to evidence, nakalagay dun maglagay ka Section 47 of Rule 39.
muna ng file of motion to leave and if granted, within a period of
There are 2 forms of res judicata, under that Section 47.
5 days , you file your demurrer to evidence. Hindi na yan. When
you file your motion for leave to file a demurrer to evidence in The 1st kind is bar by prior judgment or estoppel by judgment.
criminal cases, attach already your demurrer. So yan ang impact, Then the 2nd kind (last paragraph) is conclusiveness of judgment.
the result of Section 9, Rule 15. Do you know the distinction between conclusiveness of judgment
and bar by prior judgment? You look at the requirements, by this
Rule 16 Motion to Dismiss. By this time you have memorized the
time, master nyo na ung requirements ng res judicata. Ano ung
grounds...that when you read Section 1 of Rule 16, read that with
fundamental requirement, kailangan sa res judicata, as bar by
Section 3 or Rule 117, kasi ang bawat isa dyan may equivalent sa
prior judgment or estoppel by prior judgment.
Section 3 of Rule 117. Ano ung Rule 117, motion to quash. So kita
nyo civil and criminal pinagsasama sama natin... The 1st requirement is there must be a final judgment, 2nd
requirement it must be rendered by a court of competent
1st question, there are 10 grounds in the motion to dismiss under
jurisdiction, 3rd requirement it must be a judgment on the merits
Rule 16. There are only 9 grounds in the motion to quash, kung
and 4th requirement there must be identity of cause of action,
may equivalent yan may isang nawawala. Alin ba ang nawawala
subject matter and parties. That should be in your fingertips by
dyan, syempre alam na natin yun: venue. Because venue is
this time. These are the 4 fundamental requirements for Res
jurisdictional in criminal cases. Pero bawat isa nyan ay may
Judicata. Tanggalin mo diyan ang isa, which is identity ang isa
equivalent..that the facts charged does not constitute an offense,
which is identity of cause of action, that is conclusiveness of
that the allegations in the pleading asserts no cause of action.
judgment. So lahat ng requirement except identity of cause of
Duplicitous offenses, that one information must consist only one
action, it will become conclusiveness of judgment. Don’t confuse
charge, that there is an action pending between the same parties
conclusiveness of judgment with the principle of stare decisis.
of the same cause, paragraph E of Section 1 of Rule 16. So may
equivalent, that the cause of action has been barred by prior Isa isahin natin. That there must be a final judgment. The word
judgment or by the statute of limitation paragraph F, last ground final judgment there means executory judgment, not just a final
sa motion to quash, that the accused have been convicted, judgment because a final judgment is still remediable by new trial,
acquitted or the case against him has been dismissed without his reconsideration or appeal. So ang ibig sabihin dito ay a judgment
express consent. So res judicata ang equivalent sa criminal which has been entered, executory.
procedure: double jeopardy. 1 and 2 very clear un..the court trying
the case has no jurisdiction over the subject matter of the offense, Pangalawa, it must be a judgment on the merits. What does it
that the court has no jurisdiction over the object of the action, that mean judgment on the merits? All the parties were given the
the court has no jurisdiction over the person of the defendant, opportunities to present their side. It does not mean that there
that the court trying the case has no jurisdiction over the person should be a trial because there are several kinds of judgments that
of the accused. do not call for trial. We have studied some. Judgment by default,
it does not call for trial. Judgment by compromise, it does not call
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for trial. Rule 34 judgment on pleading, Rule 35, summary properties belonging to the estate and the court resolves the issue
judgment. Now these kinds of judgment the parties were given of ownership in that probate court, kasi sinumbit nila, is the issue
the opportunity to present their positions and that is a judgment of ownership here res judicata? YES, it is res judicata but in the
on the merits. It is not mandatory that there should be actual form of conclusiveness of judgment. Settlement of estate
presentation of evidence during the trial. So it must be a judgment pinaguusapna natin hidni unlawful detainer. Tinanggal ko na nga
on the merit. ung unlawful detainer. Dun sa unlawful detainer di un res judicata
diba kasi there is a specific provision is section 16 of Rule 70 that
And of course this judgment must be rendered by a court of
when the issue of ownership is raised in the pleading, the court is
competent jurisdiction. Why again? Because, you go to the basic
bound to resolve the issue of ownership only to resolve the issue
principle on jurisdiction: any judgment, decision, final order,
of possession kaya nga the issue of ownership there is not res
rendered by a court without jurisdiction is null and void.
judicata kaya nga sabi ko ibahin ko ung example kasi nagbibigay
Last requirement – identity of 3 things – identity of subject matter, ako ng example ng conclusiveness of judgment in the reverse kaya
identity of cause of action, identity of parties. The identity of cause pinaandar ko...eto res judicata un but not res judicata as barred
of action – absolute. But identity of parties is not absolute, it is by prior judgment but conclusiveness of judgment. Ibig sabihin
relative. Identity of subject matter - absolute. halimbawa 10 yrs after nagkaroon ng issue among the heirs, this
property X which has been resolved by the probate court as
Identity of parties. If A files a case against B, for recovery of a belonging to Mr. Y is brought again in another court to be
parcel of land. Judgment was rendered in favour of A. 10 yrs after, resolved, can the adverse party say that is already res judicata?
X files a case against Y for recovery of the same parcel of land and YES. Res Judicata as far as conclusiveness of judgment is
it happens that X and Y are the children of A and B, there is no concerned, only on that particular aspect. Halimbawa may iba
absolute identity of parties but there is identity of interest. Will pang aspect, the unrecovered fruits from the property that is not
res judicata apply? Yes, res judicata will apply. res judicata because this is conclusiveness of judgment. Ang res
judicata total yan, ang buong kaso, ang lahat ng nadiscuss dun,
But as to the subject matter, it is absolute. If what you seek to
hindi na ulit madiscuss. Yan ang barred by prior judgment or
recover in the first place is the property located in Makati and the
estoppel by judgment.
2nd case is the property located in Caloocan, there is no identity of
subject matter. So res judicata will not apply. Regarding Boston Equity Resources Inc. vs Spouse Toledo, check
that out 2014-2015 decision, estoppel din kasi to but jurisdictional
Identity of cause of action – ganun din absolute. If it is recovery
estoppel. What is the doctrine there? The doctrine there is that
then ung pangalawa ay annulment then there is no identity of
jurisdictional estoppel refers to lack of jurisdiction over the subject
cause of action. But there can be still another form of res judicata,
matter. Never lack of jurisdiction over the person. This is taken
otherwise known as conclusiveness of judgment if there is no
from Tijam vs Sibonghanoy (23 SCRA 29, April 15, 1968) pero ang
identity of cause of action.
latest is Boston Equity Resources vs Court of Appeals and Spouses
When we study Rule 70 much later on, in one case there was an Toledo.
unlawful detainer ---CGR Corporation vs Treyes Jr. (522 SCRA 765,
Paragraph F, Section 1 of Rule 16, that the cause of action has
April 27, 2007), pero dun yan sa unlawful detainer pinaguusapan.
been barred by prior judgment or by the statute of limitations.
Nag file ng forcible entry pagkatapos ng forcible entry ni ransack
Pareho yan sa double jeopardy kaya nga ang tawag ay double
ung fish pond and everything. Finile-an immediately ng forcible
jeopardy kasi may 1st jeopardy. Yung 1st jeopardy that is what res
entry. After filing the case of forcible of entry, nag file ng damages
judicata is all about. Di mo na ulit ihahabla to kasi nahabla mo na
with the RTC. Then, the adverse party filed a motion to dismiss the
sya o yan ay natapos na ng korte. Kaya yan ay double jeopardy
RTC case saying that this is litis pendentia. The Supreme Court held
because there is already 1st jeopardy and that 1st jeopardy requires
that there is no litis pendentia there because there is no identity
this res judicata in civil cases only in another light. Syempre
of cause of action. Kasi in unlawful detainer, for one, walang
criminal court yan eto civil court eto. That there was a final
damages, the damages referred to there is only unpaid rentals. Eto
judgment. Yes..what is that final judgment, in criminal cases kasi
these are actual damages, so walang litis pendetia. Could there be
there are only two principal kinds of judgment: judgment of
possible conclusiveness of judgment? YES. Again, there are 2 kinds
conviction and judgment of acquittal. Sa civil case, there are
of res judicata: 1) Bar by prior judgment – ung lahat ng
various. Sa criminal case, walang iba. Ung iba dyan is not a
requirements na sinabi ko dapat nandun, walang mawawala. 2)
judgment but order of dismissal, you may also call it decision but
Pero kung walang identity of cause of action it is still res judicata
pag dating ng judgment sa criminal case either conviction or
but another form of res judicata which is conclusiveness of
acquittal. Kaya nga sa last paragraph ng Rule 113 that the accused
judgment. I am illustrating it kasi in the reverse e, unlawful
has been acquitted, convicted or the case against him has been
detainer. Hanap tayo ng example na direct. Settlement of estate.
dismissed without his express consent. Tingnan nyo acquitted,
Mayroong will, ung decedent may will, the 1st step in the
convicted, dalawa lang na klase. And the requirements there of
settlement of estate is probate of a will, kung may will and in the
the 1st jeopardy is the same requirement in res judicata. Dapat
probate of the will, the probate court exercises limited
perfectin nyo dito ung requirement ng res judicata.
jurisdiction. It has only to decide on the authenticity and due
execution of the will. Halimbawa, the parties involved in the case That the claim or demand has been paid, waived, abandoned, or
submit for resolution by the probate court the ownership of the otherwise extinguished. Just go back to your obligations and
Page 18 of 95
contracts. When is your obligation and contract extinguished? Ang you have to allege earnest efforts. Pag hindi mo ina-allege yan, the
dami dami nun. Payment is extinguishment, novation is court does not acquire jurisdiction over such issue and therefore,
extinguishment.. has been that paid or abandoned or otherwise it can even be brought for lack of that as a ground for dismissal
extinguished. Unenforceability under the statute of frauds and not on the ground of lack of jurisdiction but on the ground of
also in reference to civil code on the statute of frauds. prematurity. Some of these grounds when availed of will call for
the final or absolute or end of the case. Like if it is lack of
And let me discuss the last one there, condition precedent. This is
jurisdiction, res judicata, but some allow would allow refilling of
basically procedural. There are three condition precedent. Now, it
the case.
is only prematurity no longer jurisdictional. What are these three
conditions precedent, 1) exhaustion of administrative remedies; And when are you suppose to file the motion to dismiss under Rule
2) earnest efforts when the case is between members of the same 16? The motion to dismiss must be filed, as a general rule, before
family and 3) Barangay Conciliation proceedings. You know very you file your answer. Can you still file a motion to dismiss after you
well that what used to be applicable here was PD1508. It has been have filed your answer? YES. Depending on your ground.
repealed already but the provisions therein had been integrated Remember we even said that if it is jurisdictional you can raise it
or incorporated in the Local Government Code on the chapter on anytime even on appeal but other grounds there during lang or
Barangay. Kaya nga etong Barangay conciliation proceeding is before answer.
mandatory pursuant to the Local Government Code. And
Under the present rule now, the court cannot defer a motion to
tatandaan nyo dito are the exceptions.
dismiss. The court must either grant or deny it. Wala ng third
General rule: every case before it is filed with the court must first option. Only 2 options of court. There is no longer deferral of the
undergo Barangay conciliation proceeding and emphasize the resolution. Pinagbawal na yan under the rules. So these are the
exceptions. Madami, para hindi ka malito sa pag alaala ng more important areas under Rule 16.
exceptions tingnan nyo, who are the parties involved. If the party
Let us go to rule 17. Rule 17 is the 1st remedy by the plaintiff. Even
is the government, walang Barangay conciliation proceeding. If
we go to that I will give you a set up of the entire remedial law
the party is a corporation, walang Barangay conciliation
para d kayo mahirapan. Sabi ko on the start, yesterday, remedial
proceeding. If the party is a non-resident of the same city or
law is all about remedies. So titingan nyo para meron kayong
municipality then there is no Barangay conciliation proceeding.
overview of the entire remedial law, what are the remedies
Ano ung exception to the exceptions: even if they belong or they
available under the rules. As far as the defendant is concerned,
reside in the same city or municipality if the same is adjacent to or
the remedies are as follows:
if the Barangay which they reside in are adjacent to each other.
Example in E. Rodriguez, the other side is Manila and the other is 1. Rule 16, Motion to Dismiss– 1st remedy;
Quezon City. So if you live in Barangays adjacent to each other but
they belong to different cities, kailangan pa din ng Barangay 2. Followed by demurrer to evidence - Rule 33;
conciliation proceeding. It is an exception to the exception. So
these are instances of Barangay conciliation proceedings. I 3. And after that, follow it will motion for reconsideration
mentioned to you already na pagdating dito hindi tinatanggap, or motion for new trial under Rule 37
pinagbabawal ang abugado. Unless you are the person involved in
the case. If you avail of provisional remedies, hindi kailangan ang 4. Then followed by appeal under Rules 40 to 45
Barangay conciliation proceedings. Then, under the case of
Sa presentation pa lang ng problem alam mo na kung ano ang
Peregrina vs Panis (133 SCRA 72, October 31, 1984). In criminal
remedy mo na ilalagay nyo. Once the judgment has been entered,
cases, there is no Barangay conciliation proceeding proper. Not all
meaning to say it is already executory you are left with but two
criminal cases, depending on the penalty, mga light offenses,
remedies. Forget about all the other remedies that I mentioned
warrantless arrest, hindi kailangan ang Barangay Conciliation
dalawa nalang Rule 38 petition for relief from judgment and
proceeding. Yan ang exceptions, juts go over the exceptions.
annulment of judgment. Sa presentation palang ng problem alam
Exhaustion of administrative remedies, as a condition precedent. mo na kung ano ang ire-remedy mo. If the problem says, after
We discussed that already under jurisdiction on quasi-judicial judgment has been ENTERED, forget about all your remedies, you
bodies on what is this regarding primary jurisdiction. Ano naman are only left with two remedies, petition for relief from judgment
etong requirement ng earnest efforts...when the case is between under Rule 38 and annulment of judgment under Rule 47. Kung
members of the family. Sino ba etong members of the family...kasi ang presentation ng problem, after the finality of the judgment,
dito sa Pilipinas we have extended families. That is not the concept bakit mag de-demurrer ka, that is not your remedy, tatlo lang ang
here. But under the rule, this earnest efforts refer only in the remedy mo, New Trial, Reconsideration, Appeal. And we have just
collateral lines up to brothers and sisters only. Cousins are no finished the first remedy available to the defendant, which is the
longer included there. On the vertical lines, walang limitation. So motion to dismiss under Rule 16.
great great grandfather having a case against the great great
Un lang ba ang nareremedy? Syempre ang plaintiff meron din in
granddaughter. The most difficult cases to handle are between
Rule 17. That is the 1st remedy of the plaintiff. 2nd remedy he can
and among family members...now how do you go about it para
go to Rule 34 judgment on the pleading, or he can also go to Rule
hindi madismiss on prematurity? You have to allege it. Kapag nag
35, which is summary judgment. Hindi sya magde-demurrer kasi
file ka ng case against a member of the family, in your pleading,
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ang demurrer after the plaintiff has rested, although meron ding
demurrer on the part of the defendant if it is relative to permissive
counterclaim. But I am talking in generality and the plaintiff can
also avail of New Trial, Reconsideration or Appeal and then after
judgement or after entry of judgment, he can also go for Petition
for Relief. I call these the sign posts of remedial law. Presentation
pa lang ng problem alam mo na kung ano ang gagawin mong
sagot. In between the sign posts of remedial law are Certiorari,
Prohibition, Mandamus. Because they can be used against
interlocutory orders and in between these remedies are
interlocutory orders. Pag ganun ang remedy mo, not appeal but
certiorari or prohibition o mandamus. Un kahit dko na tapusin ung
remedial law pag-aralan nyo lang ung sign posts wala ng lulusot
dun. A matter of understanding, matter of having a bird’s eye view
of the entire remedial law.
First remedy available to plaintiff as I said is Rule 17. Look at
section 1 of rule 17, ano yang remedy na yan. Notice. Notice lang,
hindi nga motion. Mr. A files a case against Mr. B, then he realized
na hindi dapat pala sya nag file ng complaint against B and so he
files a notice with the court. Notice to Dismiss. On what ground?
NO GROUNDS. Nakita nyo, Section 1 of Rule 17, walang grounds.
Notice lang bakit di kailangan ng ground, kasi walang
mapprejudice, ikaw ang nag file ng docket fee, ikaw ang malulugi.
So u can think of 1000 and 1 grounds basta you file a notice of
dismissal of action. ....no ground. Ang importante sa Section 1
which you have to consider is the effectivity of the notice. When
Rule 18, mahaba ang rule 18 pre trial, kasi I am going to discuss it
does the notice take effect? It is mandated there that the notice
as amended. So you look now into the mediation and conciliation
of dismissal takes effect upon the CONFIRMATION OF THE COURT
proceeding, we will discuss it after lunch.
and when the court confirms that notice, it must issue an order of
confirmation. Yan ang bago sa Section 1 of Rule 17.
If you are asked, what is an order of confirmation? The answer
which is that as I said an order under Section 1 of rule 17. Pero
meron pang isang order of confirmation under the rules of court
at un ay under Rule 68 - foreclosure of real estate mortgage. So if
you are asked what is an order of confirmation, dalawa yan under
Section 1 of Rule 17 and the other one is under Rule 68, Section 3.
What do you confirm? The sale. Foreclosure sale must be
confirmed; until and unless the sale is confirmed, it will not cut the
equity of redemption. The order of confirmation under Rule 68
cuts the equity of redemption. Section 1 of rule 17, the order of
confirmation effects the notice of dismissal.
Section 2 ng Rule 17 is now motion. Motion to dismiss by the
plaintiff. Ung una by notice eto by motion. Bakit by motion kasi
nagfile na ng answer ung defendant and when the defendant filed
his answer in all probabilities meron na syang counterclaim. Pag
may counterclaim na sya, the Section 2 of Rule 17 protects
him...kaya Section 2 provides that filing a motion so that the court
will rule the validly of your motion not so much for the plaintiff
but for the defendant. Kaya nga sec 2 provides that the dismissal
of the complaint of Section 2 is limited only to the complaint, the
counterclaim remains. (Remember this because this is
exceptional). We studied counterclaims under Rule 6, Section 7,
what is a compulsory counterclaim. What is a compulsory
counterclaim that which arises from the same cause of action in
the complaint, if the counterclaim referred to in Section 2, Rule 17
a compulsory counterclaim? NO. NOT NECESSARILY, it does not
make a distinction so whether it a compulsory or permissive it
remains. Nakita nyo kung ano ang exceptional character nito.
Because a compulsory counterclaim cannot survive without the
complaint but here is an instance where there is no longer a
complaint because it is to be dismissed but the counterclaim
remains to protect the defendant.
Mayroon ditong tinatawag na two dismissal rule. Ano ba tong 2
dismissal rule under section 2 of rule 17, when the plaintiff cause
the dismissal of his own complaint the 2nd time around, he can no
longer file it again, meaning the second dismissal is dismissal with
prejudice. Di na sya puedeng mag file again that case . Exception
to the 2 dismissal rule, if the first dismissal was on the ground of
lack of jurisdiction. If the 1st dismissal was on the ground of lack of
jurisdiction, then the two dismissal rule will not apply. Section 3 is
a cross reference to Sections 1 and 2. While you apply that to
notice and motion, these matters may also be applied to other 3rd
party complaints, cross claim and so on and so forth. And
remember what I told you the grounds there under Section 3,
dismissal motu proprio by the court tatlo yan: 1) failure to present
evidence in chief, 2) failure to prosecute for an unreasonable
length of time and 3) failure to comply with any order of the court.
Nasan ung lima...Section 1 of Rule 9: res judicata, litis pendentia,
lack of jurisdiction and prescription, ung pang walo, summary
procedure so that is the 3rd time that only in these instances that
a court can dismiss the case motu proprio so that is Rule 17.
---END---
RULE 18 PRETRIAL
Relate to rule 118 (pre trial in criminal procedure)
Today, pre-trial is mandatory in both civil and criminal cases.
If there is no pre-trial, there is irregularity in the proceeding.
Under criminal procedure, Rule 121, irregularity in the proceeding
can be a ground for new trial.
Pre-Trial in CIVIL vs CRIMINAL
As to OBJECTIVE
They have the same objective. Pre-Trial is there to expedite the
proceedings. It is the guide to the trial. The stipulations and
admissions in the pre-trial will not be discussed during the trial.
As to PLEA BARGAINING
In criminal cases, part of pre-trial is plea bargaining. There is no
plea bargaining in civil cases. You do not enter into a compromise
in the pre-trial proper in civil cases.
You can plea bargain to a crime which necessarily includes or is
necessarily included.
E.g. if you are charged with homicide, you cannot plea bargain to
jaywalking
Administrative Matter 03-1-09 (mediation and conciliation
proceedings)
Page 20 of 95
This is mandatory. No pre-trial proper without undergoing and c Failure to submit a pre-trial brief, the other party will be allowed
proceedings before the Clerk of Court. to present evidence ex parte and on the basis of which judgment
will be rendered.
The term Preliminary Conference applies now both in summary
procedure, and regular procedure preparatory to pre-trial proper. RULE 19 INTERVENTION

Rule 18, sec. 1 INTERVENTION INTERPLEADER (RULE

After the last pleading has been served and filed, the plaintiff shall 62)
file a motion ex parte that the case be set for pre-trial. The court Nature An ancillary action. This is a special civil
will set the case for pre-trial. The court will ask if you have gone to There is no such thing as action.
mediation. If not, the court will refer you to mediation. an action for
intervention.
Preferably, the mediators and conciliators should not be lawyers. Interest The intervenor must The plaintiff has no
In actual practice, these mediators and conciliators are retired have interest in the : interest in the subject
lawyers. a. subject matter, matter.
b. over the plaintiff or
After the mediation and if the mediation failed, it will be returned c. in favor of the
to the Clerk of Court who will undertake preliminary conference. defendant.
E.g.
The clerk of court should try to arrive at settlement (this is 1. If A files a case
considered the second time for trying to settle). If settlement fails, against B for recovery of
preliminary conference proper will take place. Here, the clerk of
a parcel of land and the
court proper will ask the plaintiff the following:
parcel of land is
1. What pieces of documentary evidence he has; mortgaged to you, you
2. How many witness will the plaintiff present;
can intervene because
3. How long will it take you to complete presentation of evidence
you have interest over
(Continuous trial will apply);
the subject matter.
4. same questions with the defendant (1-3);
5. what is the issue of the plaintiff
2. If B is the mortgagor,
6. what is the issue of the defendant
you have interest in
7. stipulation proper favour of the
mortgagor.
Once the stipulations are admitted, they don’t form part of the
trial anymore. The stipulations will be given to the court which
The court acquires jurisdiction over the person of the intervenor
would right then and there write and issue the pre-trial order.
upon approval of the motion for leave to intervene.
The pre-trial order is mandatory.
When can you intervene?
GR: Before resolution of the action or before judgment. After
One new thing in the pre-trial order, the court will always ask you
judgment you can no longer intervene.
if you will avail the modes of discovery.
XPN: Because of TRANSCENDENTAL IMPORTANCE
Pinlak vs CA (this is the only exception). Here, the case was already
Upon receipt of the pre-trial order, you have 10 or 15 days within
in the Supreme Court on Motion for Reconsideration but there
which to file a comment or opposition. Failure to file your
was an intervenor which is the government. So the Supreme Court
comment or opposition to the pre-trial order will hinder your right
said that “we will dispense with the rule” because of
to change anything during the trial. You will not be allowed to
transcendental importance.
present testimonial evidence not included in the pre-trial order
but you are allowed to substitute.
Doctrine in Pinlak vs CA: Newspaper of General Circulation
E.g. Those not marked as evidence will not be admitted.
RULE 20 Just read that (HAHA)
Speedy Trial Act
In actual practice, it delays the proceedings. RULE 21 (43:44) SUBPOENA

Presence is mandatory in pre-trial. 2 Kinds

Basis: Rule 9 1. Duces Tecum
If absent in pre-trial, immediately you are allowed to present 2. Ad testificandum
evidence ex parte and on the basis of such evidence judgment will
be rendered. Whenever it is a subpoena dces tecum it is always at the same
time ad testificandum. But it cannot be ad testificandum without
Pre-trial brief being duces tecum.
Same effect as presence. Ad testificandum you are subpoenad to testify.

Page 21 of 95
Duces tecum you have to produce certain document and testify When the court has acquired jurisdiction over the defendant or
thereon. over property, deposition pending action can be availed of by
leave of court. But once answer has been filed, there is no need
Can you quash a subpoena? for leave of court (Sec.1, Rule 23)
YES. When it is unreasonable.
Why? Parang baliktad?
Viatory Right Because the answer joins issues in the case. When issues are
You can assail or quash a subpoena issued against you if your joined, that delimits the issues in the case and when issues are
residence is 100 kilometers away from where you are going to limited because the complaint and answer have been joined,
testify (Sec. 10, Rule 21). there is no need for leave of court because the questions to be
propounded in the course of the deposition taking will definitely
If you do not follow subpoena, you may be declared in contempt limited to the issues as designed by the complaint and answer.
of court.
When you are declared in contempt of court, you can be arrested. But if there is no answer yet, ask for leave of court because the
proponent must be a lose canon to the detriment of the party
RULE 22 COMPUTATION OF TIME opponent.
Always exclude the first day and include the last.
In deposition taking, you must know the following parties of
RULE 23 MODES OF DISCOVERY which each deposition shall be taken:
1. any party to the case, or
(IMPORTANT, BAR MATTER)
2. a non party
The Supreme Court emphasizes to avail the modes of discovery
E.g.
for purposes of expediting the proceedings.
Parties to the case: A, b, c, d, e
Plaintiff
Barangay conciliation
Defendant
Summary procedure
Co-defendant
Small claims They all
Third, fourth, fifth party defendant
have the same objective:
Intervenor
Pre-trial To expedite the
proceedings
Any one of them can cause the taking of the deposition of any of
Preliminary conference
them or none of them.
Modes of Discovery
E.g.
There are 14 modes of discovery
A can cause the taking of the deposition of d or c, or X (a non party)
RULE 27 provides 6 modes: Production and inspection of
documents and things
Whose deposition can be taken?
1. production of documents
That of a party or a non-party. But always at the instance of a
2. production of things
party.
3. inspection of documents
A non-party cannot go to court and ask for the taking of the
4. inspection of things
deposition of anyone under Rule 23 because there is already a
5. production and inspection of documents
pending action.
6. production and inspection of things
What is a deposition?
RULE 24 provides 2 modes:
It is testimonial evidence.
1. deposition before action
2. deposition pending appeal
Thus, the general rule in testimonies will apply.
GR: Testimonies must be done in open court (under Rule 132).
RULE 28 provides 3 modes:
1. physical examination
What is the opposite of “open court”
2. mental examination
Trial in chambers.
3. physical and mental examination
XPN: When testimonies are done outside the court, it becomes a
You can avail of these different kinds and modes of discovery
deposition. (Deposition Taking)
RULE 23 (BAR MATTER)
Before whom is it taken?
DEPOSITIONS PENDING ACTION
It depends, whether it is taken here domestically or outside the
There is a pending case. You avail this mode of discovery when the
country (taken abroad).
case is pending before a court. Without the case pending, you
If it is taken abroad, it must be before the consular office or
cannot avail Rule 23.
members of the consulate: the consul, the vice consul, or any
consular officer.

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If it is taken in the country, it can be taken before anyone who is Because in the taking of the deposition anyone was afforded the
authorized to administer oath. This includes notary public. Thus, a right to due process. You can cross-examine, etc. No violation of
notary public can be a deposition officer. the right to due process.

What is needed? The deposition only forms part of the records.

NOTICES to be given to all parties. All the parties notified should
be there to conduct their own examination whether cross or re- E.g.
cross or re-direct. Nakuha mo na yung deposition, nakatranscribe na. It already
forms part of the records of the case. But Mr. X comes back to the
When you apply for the taking of the deposition of a party, send Philippines. What if the other parties ask Mr. X to testify?
notices to all the parties that you are going to take the deposition
of Mr. X on a particular period and at a particular place. Will he be prohibited to testify because his deposition has already
been taken?
This is also taken stenographically. NO, because the GR is that testimonial evidence must be taken in
open court.
In open court, who ever calls a witness is DEEMED to be using him
as his witness. Not so in deposition taking (under Sec. 7 and 8, Rule So Mr. X takes the witness stand, and at the instance of D’s
23). counsel, who used now Mr. X as his witness, now the direct
examination.
When one takes the deposition of another he is not deemed to
have taken him as his witness. Others can use the deposition as Suppose there is a question, where were you on March 5, 2005?
evidence. Because after the taking of the deposition, the records
will form part of the records of the pending case. It will be Mr. X said, “on March 5, 2005, I was walking along Avenida St. at
submitted in court. 7:00pm.
Mr. A said, “sinungaling to. Kinuha ko yung deposition niya, sabi
Is that evidence? niya March 5 nasa New York siya.”
Yes.
So ano ang gagamitin ni Mr. A? CROSS-EXAMINATION.
Whose evidence?
Nobody’s evidence. Mr. A will say, “Mr. X, do you recall the time your deposition was
taken?”
The basic requirement of admissibility of evidence is offer. Mr. X: Yes
Mr. A: I have here a copy of your deposition, will you go over it. Is
When do you offer testimonial evidence? Even before you ask the that your deposition?
first question. Mr. X: Yes.
Mr. A: You have signed it.
In deposition, you offer the evidence when you make use of it. Mr. X: Yes, that is my signature.
Because it does not follow that when you cause the taking of the Mr. A: Will you please go to page 5? Please read question number
deposition of someone, that someone is already your witness. Not 2.
yet. Mr. X: It says, “Where were you on March 5, 2005? I was in New
York”
Sec. 4. Use of Depositions. Mr. A: That is according to your deposition, correct?
a. Any deposition can be used to impeach or contradict the Mr. X: Yes, Your Honor.
deposition or the testimony of the deponent. Mr. A: No further question, Your Honor.
-Because the GR is not discarded by simply taking the deposition.
GR: A testimony must not only be credible by itself, it must also
GR: Testimonial evidence must be taken in open court. come from a credible witness.

E.g. Here, the testimony as well as the witness are both incredible.
Mr. A would like to cause the taking of the deposition of Mr. X with INADMISSIBLE.
leave of court.
Court asks why Paragraph a, USE OF A DEPOSITION.
Because Mr. X is living abroad and he might not come back so Mr.
A would want to take Mr. X’s deposition. Paragraph b, DEPOSITION OF A PARTY, OFFICER OF A
Court says OK. CORPORATION
Mr. X’s deposition is taken in stenographic notes and that - you can use it to impeach or for your own.
deposition will be submitted to the court.
Under the rules on evidence, when you offer a part of the
That does not become part of the evidence of anybody. It only deposition, the other can offer the entire.
forms part of the records of the case. Anyone can offer that.

Why?
Page 23 of 95
Paragraph c, THE CIRCUMSTANCES WHERE THE DEPOSITION OF A While depositions under Rule 23 are not applicable in criminal
WITNESS CAN BE USED FOR ANY PURPOSE, whether a party or not cases, there are equivalent provisions in criminal procedure (Secs
a party. 12, 13 and 15, Rule 119, Advance examination of the parties in a
-when such witness is already dead or cannot testify or is very sick. criminal case, either the accused or that of the prosecution
witness).
These are the uses of deposition.
Deposition taken in criminal cases, as much as possible, must be
There are 2 forms of taking the deposition under Sec. 15 and Sec. done in court and before the judge. Not necessarily the judge
25. hearing the case, but any judge, provided it is approved by the
court where the case is pending.
Sec. 15 is deposition upon oral examination.
On the day and time in place, according to the notice, you start Deposition under Rule 23 is done before a deposition officer, kaya
asking questions. it is not allowed in criminal cases.

Sec. 25, deposition upon written interrogatories. It must be before a judge, preferably.
The questions are prepared ahead of the testimony taking.
RULE 24 DEPOSITION BEFORE ACTION OR PENDING APPEAL
If I am the proponent, I will prepare direct examination questions.
I will furnish all the parties copies of my direct examination When the case is already on appeal, you can still ask for the taking
questions. After, we will prepare cross-examination questions. of the deposition.
Send it to the parties, then prepare re-direct examination
questions. Send it to all the parties, who finally, will prepare re- Where will you ask for that?
cross examination questions. GR: With the appellate court.

When all of these are gathered and the deposition taking happens, For what purpose? So that in case it is remand to the trial court,
hindi na actual ang pagtanong. Babasahin nalang dun ng the deposition can be used as testimonial evidence.
deposition officer kasi prepared na ito ahead.
Deposition is testimonial evidence.
Do you see the futility of this Section?
Can you offer such evidence as documentary? YES. The copy of the
Madali gumawa ng direct examination questions. Paano mo transcript.
maggawa ang cross-examination questions na wala pang sagot?
If you are not offering the evidence as to its content but only to
You conjecture, if the answer is this, my question is this. But if the establish the fact that it was taken, it can be object evidence.
answer is otherwise, my question would be this.
E.g.
It is more difficult, thrice as much, to prepare re-direct I want to establish the fact that deposition was taken.
examination questions when there are yet no answers to the
cross-examination questions. And its almost an impossibility to You are not establishing the content. If content, that is testimonial
prepare a re-cross examination. or documentary.

But why is this allowed by the rules? In case of pending appeal, in case of remand, ibabalik don, you can
Because the rules allow a combination of sec. 15 and sec. 25 use the deposition.
especially if the deposition will be taken abroad.
Ano yung before action?
E.g. Wala pa ngang kaso, kukuha ka na ng testimony?
The deposition will be taken in Michigan. Sasabihin mo sa client Yes. Because you can foresee that there will be a case. And by the
mo, my deposition taking dun, pupunta ako sa America. Sabi nung time that there will be a case, baka hindi mo na makuha yung
client mo, “Atty., di ko kaya yan.” Sabi mo, “Sige bahala ka, principal witness mo. So ngayon pa man, kunin mo nay an.
importante yun.” But if you are fair and just to your client, you will
say, “Okay, I will just prepare cross-examination questions.” Kung First, which court has jurisdiction? Because this is a separate
tumugma, okay lang. Kung hindi, walang magagawa. action. That is an action not capable of pecuniary estimation.
Hence, RTC.
Send it to the deposition officer in the United States.
Venue? The residence of the prospective defendant.
RULE 23 does not apply in criminal cases. It started with People
vs Hubert Webb. Followed by Vda de Manguera vs Risos and Perpetuation of testimony under Rule 134. In fact, Rule 134 has
People vs Go. already been transposed to Rule 24. Because you want to
Deposition taking in criminal cases is not allowed. perpetuate the testimony of someone kasi hindi mo nasisiguro
that by the time you need his testimony, he would still be around.
People vs Webb
Separate Opinions (Davide and Puno) E.g.
Page 24 of 95
Juan Ponce Enrile, he is now going to 92 yrs. Old. Tie this up with Secs. 7 & 8 of Rule 8.
Very colourful political life. Manner of making allegations in the pleading.
Ngayon, tahimik si Manong Johnny. Actionable Documents.
For instance, JPE was able to secure a loan worth 250Million from
BDO payable in 25 years. Will there be no conflict between Rule 26 and Secs. 7 & 8 of Rule
So kelan matatapos ang pagbabayad ni JPE? 92+25=117 8?
If you are JPE, pwedeng ma-foresee mo na magkakaroon ng kaso Kasi sabi sa Actionable document, that when a party avails of an
against you, or against BDO. actionable document, the adverse party must deny it specifically
His estate will be liable for his obligation to BDO. To assure na under oath. Otherwise, authenticity and due execution are
tama whatever case, JPE can ask for his won deposition. Can he do admitted.
that? Yes.
Magcoconflict ba?
BDO can also go to court and ask for the taking of the deposition NO. Because what is referred to under Rule 26 are non-actionable
of JPE because you can foresee that sooner or later there will be a documents, otherwise contradictory.
case relative to the 250Million obligation. Which I think by that
time will now be chargeable to the estate. E.g.
In an action for sum of money, the Promissory note is an
RULE 25 THE THIRD MODE OF DISCOVERY WHICH IS actionable document. That will not be covered by request for
INTERROGATORIES TO PARTIES admission.

A party to the case can prepare questionnaire to the other party But suppose the obligation is covered by 100 sales receipts or sales
which the latter will have to answer. invoices which are not actionable documents. So instead of
presenting them 1 by 1, ipa-admit mo na yon.
Sec. 6 (IMPT)
The sanction for non-compliance to the rule. Take note again, after the fact ito. Why? Because of the pre-trial.

The one who should prepare the written interrogatories and did Ilabas mo na sa pre-trial kung gusto mong pamarkahan.
not do so cannot be compelled to testify in court or for his
deposition to be taken. But if they are not available, you do this. Second chance request
for admission under Rule 26.
The sanction refers to the party who should have prepared the
written interrogatories in order to expedite. Look at Sec. 5

Dito sa written interrogatories, pag sinagot yun, that will be set Rule 25, Sec. 6 vs Rule 26, Sec. 5
aside as part of the trial. These are the sanctions

Ngayon, my possible conflict when we were discussing pre-trial,
hindi ba meron nadin dung stipulations and admissions? How will
that go together with interrogatories to parties? Hindi na ngayon
mag-aaply yun, because of the stipulations and admissions. So
these interrogatories to parties now would be those questions
after the fact. Kasi yung present during the pre-trial, i-stipulate mo
na yun. But after the fact if something happened, you can avail.
The sanction is on the person who should have availed of these
Rules but did not.
Under Sec. 6 of Rule 25, cannot be compelled.
Dito, cannot be allowed to present evidence on those documents
because you failed to ask or request for admission.

So this is a second chance for you to expedite the proceedings. RULE 27 PRODUCTION AND INSPECTION OF DOCUMENTS AND
THINGS
RULE 26 REQUEST FOR ADMISSION 6 in all
But that can be joined together already because the subject here
Ganun din, the sanction is upon the party who did not ask or are not only documents but also objects.
request for admission.
Often used in Criminal cases
If I am the plaintiff, and based on the pleading, I know that there Ocular inspection.
are certain questions the answers to which can be done by the
defendant, I have to apply Rule 26. E.g.
Exhumation of the cadaver- because cadaver is already an object
I asked him, I requested him to admit the following, and if he does
not admit or answer, then the queries that I have prepared will be You can also examine a living body
admitted as to their authenticity and due execution.
RULE 28 PHYSICAL AND MENTAL EXAMINATION
Note that as against 25, dito sa 26, this refers to DOCUMENTS. Ties this up with privileged communication under Rule 130, Sec.
24, particularly the relationship between a doctor and a patient.

Page 25 of 95
 Mediation and conciliation do not only apply in the trial courts,
Sec. 4 (BAR MATTER) also apply in the appellate courts. By motion or motu proprio, the
Waiver of Privilege court may apply JDR. Let me tie this up in criminal cases, should
What privilege? Privilege of communication. there be JDR, the general rule is, criminal cases are beyond
Doctors are not allowed to testify in connection with what he compromise, but once you resolve the civil aspect, the resolution
discovered from his client/s in relation to the case that he is of the criminal aspect follows. It is more of the circumvention of
handling. the law. Because criminal cases, cannot be compromise, so you
When is there a waiver? ask to settle the civil aspect, and once settled, the fiscal will say,
It is not between the doctor and the patient who was examined “considering your honor that the civil aspect of the case, and by
by order of the court because that is already waived. virtue of the affidavit of desistance executed by the private
complainant, the prosecution will be unable to establish the guilt
This is between a patient and another doctor examined at the beyond reasonable doubt, so we move for the dismissal of the
instance of the person himself. case”. The court will grant that easily. (So inikutan lang ung batas.
Kasi kung ididirect mo, we have settled the criminal aspect, that
Basis is Sec. 3 would be denied. The plaintiff is already the Republic, so if you
want to settle this, you have to ask for the settlement of more than
E.g. hundreds of Filipinos).
A vs B, plaintiff and defendant.
A, plaintiff, wanted a mental examination of B by Doctor X. Is an action for foreclosure an action incapable of pecuniary
Between B and Doctor X, there is privileged communication. estimation?
In the case of Brgy. San Roque vs. Heirs of Pastor penned by Justice
Yun ba ang winewaive ditto? Ferria, it was stated that an expropriation proceeding is an action
Hindi, kasi wala nang privilege yon kasi it is by order of the court. not capable of pecuniary estimation, so is the foreclosure of real
estate mortgage and partition.
The examination of B by Doctor X is at the instance of plaintiff A. In a 2015 case (title not mentioned) – foreclosure of real estate
mortgage can be an action involving title to or possession of
But who is entitled to the medical report of Doctor X. property, hence, the determinant of the jurisdiction will be the
A, because it was A who wanted B to be examined. assessed value of the property pursuant to Republic Act No. 7691.
So the medical report of Doctor X must be given to A. In this case, there is no direct statement that foreclosure is an
action incapable of pecuniary estimation as stated in the early
If Mr. B would like to get a copy of the medical report of his own case of Brgy. San Roque vs. Heirs of Pastor.
person and it is given to him, then to level the playing field, any It’s not always that foreclosure of real estate mortgage involves
examination conducted upon B by other doctors like Doctor Y, title to or possession of property. Most mortgages would avail of
there is privilege communication that is waived. extrajudicial foreclosure rather than judicial foreclosure (Rule 68).

B in relation to Doctor Y. Can a person declared in default be allowed to present evidence

on appeal?
Because B asked for the result of his examination when he is not Of course, if he appeals, because when you are declared in default,
entitled to that report. It should be. So A must also be given a you lose your personality before the trial court. But in order to
chance to see the medical report of Doctor Y on B. regain the personality before the trial court, the remedy is to file
a motion to set aside the order of default. Otherwise, judgement
The privilege communication between B and Doctor will be by default will follow. Any remedy against the judgement is
waived. available against a judgement by default. So when you appeal that
judgement, you have new list on your legal life, so you will be
RULE 29 EFFECTS OF REFUSAL TO COMPLY WITH THE MODES OF allowed to present evidence. But remember that on appeal, trial
DISCOVERY or actual presentation of evidence is not a matter of right. Because
in our rules on appeal, you only to have submit documents.
1. that which is sought to be admitted is now deemed admitted. However, the court can ask for oral arguments. But it is not a
2. you can claim also for damages matter of right. You cannot insist that it is your right.
3. you can ask the non-compliant party to be cited in contempt of
court What if the defendant file a motion for new trial and then
4. you can have him arrested. granted, can he present evidence in such new trial if he was
declared in default in the original trial?
Judicial Dispute Resolution Remedy against judgement is not proscribed against a faulted
Depends if before MTC or RTC. The judge may conduct Judicial party – i.e., motion for new trial, motion for reconsideration, and
Dispute Resolution (JDR) or one can move for JDR. The point is, if appeal. You can file a motion for new trial, but the question is, “on
in the JDR, it does not materialize, the general rule is, the case will what grounds”? Technically, it is allowed, on the possibility of
be re-raffled, unless the parties agree to submit the same to the newly discovered evidence. Utmost, excusable negligence. So
judge before the case is pending, instead of filing a motion for allowed. The answer is yes. But it does not mean that when you
inhibition (kasi medyo pangit tingnan minsan, so magmotion ka ask for new trial it will be granted.
for JDR. And alam mo naman na hindi ka mag-aagree sa JDR, and
then you ask for re-raffle). How do you arrest an arrested person?
Page 26 of 95
You cannot arrest, because once arrested, you are already under
the custody of the law. Arrest is the means by which the court
acquires jurisdiction over the person in criminal cases. In civil
cases, the court acquires jurisdiction upon valid service of
summon or voluntary surrender. In criminal cases, upon lawful
arrest. Perhaps, the question is - once invalidly arrested, can he be
re-arrested? The answer is yes, of course. Why not? Because the
arrest is invalid.
Example, under Section 5 of Rule 113 on warrantless arrest, a
person was arrested on the “attempting to commit” stage but was
not proven, so he was not validly arrested.
In People vs. Menggito, the warrantless arrest is not valid, as
holding ones stomach is not a crime. He is not committing or
attempting to commit a crime. Only suspicious looking.
Rule 30: TRIAL (Civil)
Read this together with Rule 119. In Rule 30, the following are
important:
a. Notice of trial, must be given at least five days before the date
b. Postponement
There are two grounds:
i. unavailability or absence of evidence; and
ii. illness of counsel or party (most abused ground by lawyer).
You have to present certificate (most abused – medical
certificate).
c. Order of trial
Do not confuse this with order of presentation of evidence
under Rule 132. This means you start with prosecution or
plaintiff in civil cases, defendant, co-defendant, third or
fourth or fifth party defendant, the last person to present the
evidence is the intervenor.
In the presentation of evidence, direct, cross, indirect,
redirect, or recross.
Rule 119: TRIAL (Criminal)
Take note of the following:
a. Sections 1-3 (time frame)
In criminal cases, it cannot, in no way, exceed 180 days. Not in
civil
Section 3 – exclusions, the common denominator is delay
(valid delays)
Extended time limit – Aside from 180 days plus 80 days = 260
days
b. Sections 12, 14, and 15
Equivalent to deposition pending action in criminal cases
c. Section 17
The state witness rule
Remember ANSAM – Absolute necessity, No other evidence,
Substantially corroborate, Appear not to be the most guilty,
Moral turpitude (not convicted)
d. Section 23
Demurrer to evidence
e. Reopening
Last section in Rule 119
*If questions will be on trial, chances are it will be from Rule 119 available. The rule only maintains trial by commissioners (not
rather than Rule 30.
Rule 31: CONSOLIDATION OR SEVERANCE
These are not opposites. They have different concepts.
Two new cases:
a. Metrobank vs. Sandoval, 2014 (as to severance)
Severance – there is only one case but there are several
causes of action. And one cause of action may be tried
separately from the others, the only limitation is that once
judgement is rendered on one portion of the severed cause
of action, you cannot execute that yet. You have to wait for
all.
The case involves properties of Marcoses. Some were
transferred already to Metrobank. Sandoval granted the
motion for severance, i.e., try first the case of Marcoses
(defendant) or separate trial for Marcoses, and separate for
Metrobank. The Supreme Court said that the granting of the
motion is improper. You cannot severe that because you are
not giving due process to Metrobank. This must be tried
together and not separately.
b. Republic vs. Heirs of Oribello, 2014 (as to consolidation)
Consolidation – lump or lodge together several separate and
distinct cases provided there is common question of facts and
law and parties
e.g.
Case 1 – A vs. B pending before the RTC of Manila Branch 55
Case 2 – B vs. A pending before the RTC of Makati Branch 4
Case 3 – A vs. B and C pending before the RTC of QC Branch
48
If there is common question of fact and law, given that they
are same parties, pending before three different RTCs, you
can consolidate them. With more reason, if they are lodge in
the same judicial districts (now judicial region). As long as
there are common question of fact and law and identity of
parties, cases can be consolidated.
General Rule:
You file your motion for consolidation in the lowest
numbered case, i.e., the first case filed. But this is not
mandatory, it depends upon the court, on what is more
convenient to parties.
This case has the only discussion in jurisprudence of the three
kinds of consolidation:
i. Actual
ii. Quasi consolidation
iii. Case consolidation proper
In consolidated cases, there can be one judgement or several
judgment.
Rule 32: TRIAL BY COMMISSIONERS
Trial with assessors is not in the rules, but still procedurally
with).
Page 27 of 95
 right to present
The deposition officer cannot rule on objections, he has to await evidence
in court if presented. But in trial by commissioners, the If granted, this is a final If granted, that amounts
Commissioner acts as a judge, therefore: order, not interlocutory. to acquittal of the
a. He can rule on admission or admissibility of evidence accused.
b. He can issue subpoena, duces tecum and ad testificandum Appealable if granted. Not appealable if
c. Call on witnesses granted, otherwise the
d. Hear the cases accused will be placed in
double jeopardy.
So mas malawak ang authority or right of a commissioner. If appealed, and the
appellate court reverses,
When do you ask for trial by commissioner? the defendant loses the
In some parts, it is mandatory, such as: right to present
a. In Rule 67, expropriation. evidence.
There are two parts, the last part is the determination of just Quantum of evidence – Quantum – proof beyond
compensation. The rule specifically provides for the preponderance reasonable doubt (easier
appointment of three commissioners to determine just to avail)
compensation
b. In partition, Rule 69, on the accounting process. Oropeza vs. Oropeza.
Children filed petition for guardianship (father is a widower
How is a commissioner appointed? who has a girlfriend allegedly wanting only money from the
Through an order of reference, the appointment of commissioner father). After the presentation of evidence by the plaintiff or
as judge. Do not confuse with order of confirmation. the petitioner, Gen. Oropeza filed demurrer. Is demurrer
applicable in guardianship?
Do commissioners render judgment?
No. Even when trial by commissioner is mandatory, they do not Yes.
render judgement. Instead, he is obligated to submit a report. And Bernardo vs. CA
on the basis of this report, judgement may be rendered by the Counsel for the accused is Atty. Miravite (author of reviewer
court (not mandatory). The court may: of Commercial Law). This is BP 22 case. After the last witness
for the prosecution, the prosecution said I will now make
a. Admit the report of the commissioner in toto offer of evidence.
b. May reject in toto
c. Admit in part Judge: exhibits are hereby admitted, noting the objections of
d. Reject in toto the defense counsel.
e. May recommit for further studies
f. May use other means to expedite the resolution of the case After this, the prosecution rests its case.
Judge: Counsel for the accused, present your evidence.
But remember, the commissioner never render judgement. Atty. Miravite: I am not going to present, I am going to file
demurrer.
Rule 33: DEMURRER TO EVIDENCE Judge: Make leave of court.
Both in civil and criminal. Atty. Miravite: I move for leave of court.
Procedural basis will be Rule 43 and Section 23 of Rule 119. Judge: Denied.
Atty. Miravite: Move for reconsideration.
Guide: Judge: Denied.
Civil Criminal Atty. Miravite: Filed demurrer to evidence.
A kind of a motion to A kind of a motion to Demurrer was denied.
dismiss; not a prohibited dismiss; not a prohibited Atty. Miravite: Moved for the presentation of accused evidence.
pleading (will not defeat pleading (will not defeat Court: Denied, you did not file the demurrer with leave of court.
the purpose of summary the purpose of summary Atty. Miravite: I did.
procedure) procedure) Court: It was denied, therefore no motion for leave.
Grounds are the same – Grounds are the same –
insufficiency of evidence insufficiency of evidence Issue: Who was right?
Available after the Available after the
plaintiff has rested its prosecution has rested Supreme Court sustained the lower court. The demurrer is
case its case without leave of court. Therefore, the accused lose his right to
If denied, the defendant If denied, distinguish: present evidence.
presents evidence i. If with leave of court,
accused is allowed to Del Rosario vs. Radiowealth Finance Company (civil)
present evidence After the plaintiff has rested its case, defendant filed a demurrer
ii. If without, the to evidence. Leave of court not needed. The court granted. This is
accused loses his final order. So, the plaintiff appealed. The appellate court reversed
the order granting the demurrer. In addition, the appellate court
Page 28 of 95
remanded the case for further proceeding. The Supreme Court
held that the appellate court was partly correct and partly wrong.
While it is within the discretion of the appellate to reverse or not
the order on demurrer, it has no right to remand the case to the
trial court. Because when the reverses, the defendant loses his
right to present evidence. Then what is it to do in the trial court?
BP 22 case involving two Koreans.
After the prosecution rested its case, the accused filed a demurrer
to evidence which was granted by the court. Hence, with the
effect of acquittal. Private complainant, filed an appeal, without
even identifying what is appealed, whether criminal or civil. The
Supreme Court approved the appeal on the civil aspect of the
case. You can still appeal on the civil aspect. Supreme Court ruled
this wrongly, civil aspect is deemed instituted in criminal case. No
reservation in BP 22. Demurrer granted, acquittal, appeal
admitted on the civil aspect.
Cabador vs. People
This involves the murder of Atty. Valerio of Quezon City. The
suspect was finally arraigned. Trial moved on for five years. The
prosecution presented five witnesses in the span of five years.
Trial court said enough is enough, so rest your case, make now
your formal offer of evidence. Prosection said we will now submit
formal offer of evidence. Cabador received a motion for extension
of time to file formal offer of evidence. Cabador said, this is sobra
na, delaying tactic. Hence, a motion to dismiss invoking the
constitutional right of the accused to speedy trial was then filed.
But on that same day, the prosecution submitted formal offer of
evidence. The court said, this is a demurrer and so denied the
same. And because of the denial, the accused now wanted to
present evidence, however, objected to because there is no leave
of court.
Issue: Was the motion to dismiss a demurrer.
Ruling:
Supreme Court said it is not. Fundamentally, because there is only
one ground on demurrer to evidence, which is insufficiency of
evidence. The ground here pertains to speedy trial, so how can it
be a demurrer? But the more important reason here is that, the
demurrer to evidence, is available only after the prosecution has
rested its case. Here it is not yet resting its case. After submission
of formal offer of evidence, the accused shall file comment, and
then that’s the only time the prosecution can rest its case, i.e.,
when the accused accepted the same. The Supreme Court
remanded the case to trial court for further proceeding.
Rule 34: JUDGEMENT ON THE PLEADINGS
Rule 35: SUMMARY JUDGEMENT
They are different.
Rule 34 Rule 35
Where an answer fails to Applies when there is an
tender an issue, or issue, only that the issue is
otherwise admits the sham (can be decided
material allegations of the immediately by the
adverse party's pleading court).
(this cannot be motu
proprio)*
There is no issue at all. There is no genuine issue.
Judgement is based on Rule 35, is it not only
the pleadings, complaint, based on the pleadings
answer, reply if there is. but other documents
supporting it, like
deposition, affidavits, and
other doc, in support.
It is only available to the Available in claim,
plaintiff. counterclaim, or even
cross claim.
*Note that in Rule 6, there are two kinds of defenses – negative
and affirmative. If you do not specifically deny the allegation in the
complaint, you have admitted, therefore your answer fail to
tender an issue. That’s why you have to specifically deny the
allegation. Give the reason why you are denying. Otherwise the
plaintiff is entitled to judgement on the pleading.
Can there be partial summary judgement?
Yes
Asian Management Corporation case
The city entered into a contract with the contractor to build the
sports arena in the city. The contractor said it has already finished
77% of the construction but the city has not yet paid the amount
corresponding to that 77% completed project. The city ignored. So
the contractor filed a case for collection. After this, summons, plus
copy of the complaint. The city answered: we deny that you have
completed 77% of the project. The truth is that you have only
completed 55% not 77%. The contractor, filed a motion for
summary judgement. It was partially granted. Why? Because
there is admission. The city said not 77% but 55%. The Supreme
Court ruled that specific denial is partially admission, therefore
you are bound to pay the 55%. Partial summary judgement.
RULE 36
Good afternoon, Summary Judgment, So what is the title
of Rule 36? Kung 36 tyo dapat tapusin na na tin ang civ pro ngaun,
then provisional remedies tomorrow, then special civil action, so
hopefully by Sunday we can start on spec pro. Di ko sinusunod
yung sa outline nyo
There will be a question in evidence regarding matubato,
anyway familiarize yourselves with whats going on in our blessed
society.
What is the Titile of Rule 36?, Judgments, Judgments, Final Orders
and Entry Thereof, when you read rule 36, you read that together
with Rule 120, because Rule 36 is about judgment and Rule 120 is
also about Judgment, Judgment in civil cases versus Judgment in
criminal cases. Where lies the difference? There is actually no
definition of Judgment under Rule 36, section 1 but the definition
appears to be in Section 1 of Rule 120 although that particularly
refers to judgment in criminal cases.
Well, whether it is civil or criminal, judgment is an
adjudication of the merits of the case, whether it is civil or
criminal, it is the determination, in criminal cases for example, of
whether the accused is guilty or not guilty but the requirements in
Sec. 1 of Rule 36 is that any judgment must be in writing,
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personally written and prepared to by the judge, do you believe
that? That is only for academic purposes, and so to in criminal case
personally written and prepared to by the judge. The judgment
must contain the determination of the facts and the law on which
it is based. Unlike in criminal cases there are many kinds of
judgment in civil cases we have studied a lot of them, we passed
by Rule 9, judgment by default, we discussed Rule 34 Judgment on
the pleading, Rule 35 Summary Judgment, meron pa tayong
nririnig na Judgment on Compromise, Judgment by confessiom in
fact in this very R36 you have there several judgment as against
separate judgment, hindi yan “several”, kundi “seve-ral” ksi
sinevere kinut.
When you speak of “Seve-ral” Jugments it means there
are several parties in the case and the judgment is severed, 1
judgment for 1 party and another judgment for another party as
distinguished from a separate judgment, where the plurality lies
with the causes of action. So a judgment on 1 cause of action may
be resolved, or issued by the court before resolving the case this
is separate judgment.
So andaming Judgment in Civil Cases, you even have a
judgment on note, do you know what is a judgment on note? Or
note judgement? This is a void judgment, why? Because this is a
disavowal or giving up your right to due process, when 1 executes
a promissory note on the basis of which a judgment is rendered,
but in the very promissory note you say that you are liable to the
Promissory Note upon its non compliance you call that a judgment
note and that is null and void because you cannot give away your
constitutional right to due process, so have you heard of nunc
protunc, lumabas sa bar yan several years ago, kalokohan diba?
Ano ba yan? Actually it is not a judgment but is a correction of a
judgment, a judgment which has not been entered must now be
entered yan ung nunc protunc judgment, now and then.
I am just trying to illustrate to you that in civil cases there
are several kind of judgment, what is a clarificatory judgment (CJ)
? A CJ is such kind of judgment which is subsequent to the original
judgment, which is vauge or nebulous, cloudy, Malabo, that is why
you file a motion for a clarificatory judgment and what does the
court do? The court amends the judgment, pag inamend ang
judgment, we studied Rule 10 amendments, what is the effects of
the amended pleading to the original pleading? The original
pleading is superseded okay, is that also true in case of
clarificatory judgment? Yes, so the original judgment is
superseded by an amended judgment and don’t confuse an
amended judgment from supplemental judgment. In
Supplemental Judgment it only adds something to the original
judgment it does not therefore supersede the original judgment
so these are 2 different things Amended Judgment and
Supplemental Judgment.
While there are many kinds of judgment in civil cases, in
criminal cases under R120, section 2 thereof there are only 2 kind
of judgment in criminal cases it is either judgment of acquittal or
a judgment of conviction, ung dismissal technically it is an order,
the order of dismissal but as to J in criminal cases, it is either of
conviction or acquittal and it is quite clear, section 2 of Rule 20,
you try to look into that there are certain requirements if it is a
judgment of acquittal or Judgment of conviction.
What should include in a judgment of conviction? The
participation of the accused, what crime or offense was
committed, how was it committed, these are some facts in the
judgment of conviction, in the judgment of acquittal dapat more
pronounce it to, clearly the rules says the court must determine
whether the prosecution has failed to established the guilt of the
accused only beyond reasonable doubt or failed absolutely to
establish the guilt of the accused. Bakit imporatante yung
distinction because of the civil liability, if the judgment in Criminal
Case simply says the prosecution was unable to establish guilt of
the accused beyond reasonable doubt that does not remove the
civil liability, pero if there is no basis for the judgment because the
prosecution absolutely failed to prove the guilt of the accused
then what happens then there is no concomitant civil liability, in
Rule 111 you know in crim pro, whenever the criminal case is filed
the civil aspect arising from the crime is deemed instituted kaya
palaging kailangan yon, so dalawa lang yon ganon.
Another distinction that you must know, is that in civil
cases a judgment becomes finale and executory when there is no
appeal or new trial or reconsideration, but in criminal cases it is
not limited to the absesnce of new trial, reconsideration or appeal,
when the accused is start serving sentence then the judgment
becomes final, pero ang possible BAR question ditto is probation,
kung sakali, because there is a new caes yung Kulinares vs People
but that was reiterated lately by villareal vs people, Criminal
Procedure ito hopefully your reviewer will discuss this 2 cases ung
Villareal eto yung Aquilla Legis, pro simply what is the general
rule? The doctrine is that when the accused applies for probatiom
that makes the judgment final but look at the twist in this Villareal
following the case of Kulinares, Villareal is a 2015 decision, ditto
hindi pa nagappeal, so when you appeal you loose your right to
probation, but in the villareal case inappeal and on appeal there
was a reduction of the penalty and the penalty imposed on appeal
was no probationable so nagfile ng probation, ang ng Korte
Suprema, error yung nangyare sa trial court, that is why this is
probationable yun ang possibleng mangyare dyan.
In criminal cases, also, judgment becomes final when
there is a waiver, probation, then it becomes final.
You will notice that in criminal cases they don’t use the
word executor, kaya medyo Malabo, sa civil cases madali
maintindihan, a final judgment is not an executor judgment but an
executor judgment is necessarily final, yung a relationship, so if
you draw a small circle, this small circle represents a final
judgment and you circumscribe that small circle with a big circle,
the bigger circle represents the executor judgment kaya nga once
you have the bigger circle the small circle is there but you cannot
have the big circle without the small circle so that’s how you have
to look at it.
In civil cases there is an entry of judgment, entry of
judgment is different from promulgation of judgment, in criminal
cases iba din yon, promulgation of judgment in criminal cases is
the reading of the judgment and only then will it be entered upon
filing of the judgment with the office of the clerk of court ang
tawag dyan sa civil case, yung promulgation rendition as
distinguished from entry of judgment.
Eto ang very important provision dyan sa Rule 36, Section
2 the second sentence I underline nyo un, intindihin ng mabuti,
the date of finality of judgment shall be deemed to be the entry
thereof, intindihin ng mabuti yan, that is repeated in R51
Judgment, Section 10, that phrase is repeated, anong ibig sabihin
non? To understand this, what is the technical or real meaning of
entry of judgment? Entry of Judgment means the recording of the
judgment in the book of entries, every court has a big book known
as the book of entries of judgments and the clerk of court is
tasked, is obliged to record the dispositive portion of the judgment
in the book of entries ano yung dispositive portion? Yung nagsstart
na “WHEREFORE”, “PREMISES CONSIDERED” etc, yung hanggang
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don sa “SO ordered”. That dispositive portion is recorded in the
book of entries of judgment that is the real meaning of entering
the judgment recording it in the book of entries pero sinabi dyan
that the date of entry of judgment is not really the date of
recording of judgment but rather the finality of judgment bakit? If
you interpret it otherwise then the prescriptive period will now
depend on the clerk of court and not depending on the rules, kaya
nga irrespective of the date of the recording of the dispositive
judgment in the book of entries, the judgment becomes executory
when the parties has lost already the right to appeal, file a motion
for new trial or a motion for reconsideration, kaya importante yon,
bakit importante yung date of entry of judgment? It is important
because that is the point of preference for certain prescriptive
period like in Rule 38, Petition for Relief of Judgment or denial of
appeal, it says there 6 months from entry, 60 days from
knowledge, ngaun yung point of reference is there 6 months from
entry anong ibig sabhin nung entry? Is that the actual recording of
the judgment? NO! finality of judgment or when the judgment
becomes final and executory
The date shall not depend the whims of the clerk of court
but must be with the rules of court kaya that sentence is quite
important the date of finality of judgment shall be deemed to be
the entry thereof, date of finality, and when is a judgment final?
When you loose already your right to appeal, or file a motion for
new trial, or a motion for reconsideration. Yung classical example
na binigay ko sa inyo diba? A files an action against XYZ, judgment
was rendered in favor of A and copies of the judgment were
received by XYZ on Jan 5, 10, and 15 diba? So kalian sila pwede
mag appeal? 20, 25, 30 san ba natin to diniscuss? Jurisdiction ata,
residual jurisdiction, so yun, when does a judgment becomes
final? After the 30th, the judgment not just become final but
executorry even if that is entered or recorded in March the date
of entry is still January 31 I think that is already clear so hanggang
ditto nalang ang Rule 36, nga pala who can prepare a judgment
pala? Syempre sabi tinatanong paba yan? Tinatanong paba yan?
So di na yan pinagiisipan, syempre yung judge but sinong judge
yung judge sa kaso nasa RTC branch 55 Manila, should it only be
the Judge of RTC branch 55 of manila who can render the
judgment? No, not necessarily suppose this judge was transferred
to RTC quezon city, can he still render the judgment of the case he
heard in Manila? Yes, yung 1970 wala na yung Soria doctrine,
overturned na yan, sabi non only the judge that heard the case,
ngaun pag lateral ang judgment ng judge he can still render a
judgment of the case, ay eto people vs donesa na ngaun, 1973
hanggang ngaun yan ang ruling, pro vertical transfer hindi na,
MTC judge ka at kinuha ka sa RTC you cannot anymore render a
judgment of even which you hear, later lang, RTC, RTC, MTC to
MTC. The general rule therefore, the incumbent judge must be the
one to render the judgment, even if he did not hear the case not
a portion of a case was heard by him can he render a judgment?
Yes, if he is the incumbent judge in the Sala where the case heard
kasi ang pagbabasehan nya lang is yung transcript, yung TSN. So
this Rule 36.
RULE 37
Let me premise this of sign post remedial law, I will
repeat that for clarity, uulitin ko yan ngaun, uulitin ko padn yan sa
November 3 kaya dapat di nyo mkalimutan sa November 23 pre
week natin kung ano ang diniscuss ko dto yun ang ididiscuss ko din
doon so wag na kayong pumunta.
Design post of remedial law, remedial law is all about
remedies as far as the plaintiff is concerned anong unang remedy
nya? Rule 17 dismissal of action then Rule 34, Judgment on the
pleading, then Rule 35, Summary Judgment, then he can ask also
for new trial, or reconsideration and appeal under Rule 37 yung
New trila and consideration.
Pagdating naman sa defendant yung first remedy nya is
Rule 16 motion to dismiss, yung pangalawang remedy nya is
Demurrer to evidence, then new trial din and reconsideration and
then appeal yun lang ang mga remedies, in between design post
you have the special civil action of
certiorari,prohibition,mandamus because this special civil action
are not against final orders, but against interlocutory order,
pagtapos non when the judgment has become final and excutory,
dalawa nalang ang remedies which are petition for relief from
judgment under Rule 38 and annulment of Judgment kaya sabi ko
sa inyo presentation palang ng problem dapat alam nyo na kung
ano ang remedy nyo kung yung order ay interlocutory wag na kayo
magisip nitong mga appeal na ito, hindi pwede yon ang remedy
dyan would be certiorari.
Now we are starting our first remedy available to both
plaintiff and defendant, which is New trial or reconsideration
under Rule 37, but let me atleast tell you that in both civil and
criminal cases merong remedy ito but look at the grounds so when
you read Rule 37 you read that together with Rule 121 sunod
sunuran lang diba? Iba ang grounds, they are not identical.
Let’s start with civil cases, in civil cases, new trial and
reconsideration are separate and distinct remedies, they are not
the same because they have different grounds, the 1964 rules of
court walang clear distinction but under the present rules of court
there is a clear distinction between the grounds for new trial and
reconsideration.
Ano yung grounds for reconsideration? That the
judgment contrary to law, that the award of damages is excessive
or that is contrary to law, ano pa? tatloy yun, anyway, suppose you
file an action for new trial on the ground of insufficiency of
evidence, which is for reconsideration yon diba? Should the court
dismiss that for wrong ground? No, the court must consider it as
a motion for reconsideration not a motion for new trial, on the
otherhand when you file a motion for reconsideration on the
ground of newly discovered evidence should the court dismiss
that? No, the court should take cognizance of it as a motion for
new trial here in Rule 37 the principle of leniency is applied.
As to motion for reconsideration, talto yan, last
paragraph of section 1, insufficiency of evidence award of
damages is excessive, and it is contrary to law but when you speak
of new trial what are the grounds? Dpat sa ulo nyo nay an, you
cannot just say Fraud, Accident, Mistake, and Excusable
negligence, you have to qualify them bakit kailangang i-
emphasize? Kasi all jurisprudence speak of their qualification kaya
you don’t have to read all the cases basta alam nyo Fraud,
Accident, Mistake, and Excusable which ordinary prudence could
have not guarded against and would prejudiced the substantial
rights of the parties iqualify nyo agad. Halimbawa may objective
question that would be an incomplete answer if you just say
Fraud, Accident, Mistake and Excusable Negligence, the worst
thing that you can answer is to answer it “FAME” your answer will
be wrong. And the 5th ground is Newly Discovered evidence which
could not be discovered despite of diligent effort and if so allowed
would probably alter the result.
Fraud, Accident, Mistake, and Excusable negligence
tignan natin ng mabuti to, these are the same grounds for petition
for relief under Rule 38, settled is the rule that you cannot avail of
Rule 38 if you have the chance to avail of Rule 37 and you did not
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yan ang unang condition sa Rule 38, prerogative remedies ang
tawag don, yung dalawang natitira after remedies for executory
judgments Rule 38 and 47 they prerogative remedies. Kaya tignan
mabuti ung meaning ditto kasi they have the same meaning Fraud,
Accident, Mistake, and Excusable negligence.
What is Fraud? Deceit panloloko, panlilinlang but eto ang
panloloko or panlilinlang which is beyond your control kasi kaya
mong kontrolin it is not extrinsic, it is intrinsic so yan yung ground
for new trial here it must be extrinsic fraud, fraud committed
outside the trial because if fraud or deceit is committed within or
during the trial you are given the opportunity to contest it, to
oppose it, but you did not therefore there is a waiver. Yung kaso
ng Formoso, pinagaaralan yan sa contempt pero partly etong si
Atty. Formoso ng present ng mga evidence which according to the
judge were fraudulent, if it is true what kind of fraud would that
be? Intrinsic because it was committed in the course of the trial
and this is not a ground for new trial you should have objected to
it right there and then but since you did not object therefore you
have waived.
Ano ung extrinsic fraud? That beyond your control,sabi
ng kalaban mong abogado, padre wag kana pumunta sa pre trial
bukas, bakit?kasi ngfile nako ng motion for suspension of our
hearing tomorrow, “ganon ba? So d nako pupunta” the next order
you received was a copy of the judgment kasi ngpresent pala sya
ng evidence ex-parte cause you were absent, that is extrinsic
fraud.
Now if you are the one who committed the fraud, you
cannot ask for new trial of course, you must not be the guilty party
of this extrinsic fraud.
Other than fraud, the 3 other ground are more prevalent
now, used in many instances, accident, mistake, excusable
negligence.
What is an accident? An accident is an event not forseen
and beyond your control, example undoy, simpleng example
nasiraan ka ng sasakyan on your way to court it’s beyond your
control. Mistake must be mistake of fact not a mistake of law,
because if it is a mistake of law that would amount to ignorance
of the law, Aricle 3 of Civil Code. Negligence that is excusable,
ngaun ano ang non excusable negligence? We are guided here by
jurisprudence what is excusable and what is not? Kasi ang
meaning ng gross negligence is when what is required is ordinary
diligence, and still you committed a mistake or neglected it, that
is gross, but if it is extra-ordinary diligent you commit a mistake or
you are neglectful, then that is excusable.
Based on jurisprudence there is no hard and fast rule in
excusable negligence, I empashize this more than fraud kasi eto
na yung malimit magamit ngaun, what is excusable? Consider this
cases, the lawyers were in court and the clerk of court says
“walang hearing tayo ngaun”, “bakit?”, “because the judge is
absent.” “anong available dates nyo? Counsel for the plaintiff and
counsel for the defendant” are you available of October 6?”
“Yes!” so they put in their calendar October 6. One of the parties
on October 6 did not appear, because he wrote in his diary on
November 6, because nagmakali sya, so when this reached the
Supreme Court he was asking for new trial on the ground of
excusable negligence, Supreme Court said that is excusable
negligence, that is Scenario number 1.
In scenario No. 2 the clerk of court said wala tayong
hearing the judge is absent, o etong available date name, no need,
we have already reset it in fact there is already and order from the
court, ano bang order ng court? (COC) October 6, both are
available, and both counsel received the copy of the order, they
went home, one of the lawyers pagdating nya sa office, binigay sa
secretary ngaun nakaligtaaan ilagay sa calendar, na misplaced
yung order, then the counsel did not appear on October 6, then
he ask for new trial on the ground of excusable negligence, the
Supreme Court says No that is not excusable negligence you must
be clear about your things and documents.
If you look at case no. 1 and case no. 2 you can even
interchanged them, what I would like to tell you is that there is no
hard and fast rule as to what is excusable. So this is the concept of
excusable negligence. If you want to file a motion for new trial on
the ground of excusable negligence, whatever it is file it and let
the court decide.
Now the 5th ground is newly discovered evidence and
what is a newly discovered evidence? That must be properly
qualified, newly discovered evidence which could not be
discovered despite of diligent efforts and if so allowed would alter
the result. All the requirements must be present when you avail
of newly discovered evidence. You must equate newly discovered
evidence with unavailable evidence the emphasis is not on the
word “discovery” but on the word availability, if the evidence is
available you must use it, it cannot be considered as newly
discovered if you avail that after judgment has been rendered. For
example affidavit of desistance, this can be secured by the party
in the course of the trial, there was a case after judgment has been
rendered then the accused was convicted he moved for new trial
on the ground of newly discovered evidence he was trying to
present affidavit of desistance, the Supreme Court said that it was
not a newly discovered evidence because you could have avail of
that during trial. Another reports from appropriate agencies,
which can be secured during trial but you did not secure them. In
a prosecution from falsification of public documents newly
discovered evidence sought to be submitted for new trial was
secured by the party an NBI report that there was no falsification,
Supreme Court said it was not a newly discovered evidence
because that report could have been secured during the course of
the proceeding.
So what would be an example of newly discovered
evidence? You have stated in your pre trial order testimony of Mr.
X as your evidence in chief but when you try to present Mr. X to
give his testimony his no where to be found, so he was not
presented, but when your client was convicted biglan nag appear
si Mr. X is that a newly discovered evidence? That can be
considered, because even if he was in new trial he later became
unavailable and this can be used as a newly discovered evidence
because it became all of a sudden unavailable, and now that it is
available can you now ask for new trial on the ground of newly
discovered evidence? Yes! Especially if that is evidence in chief,
kung corroborative siguro yon baka di ka pagbgyan.
So this are the grounds for Motion for New Trial. Let me
mention in passing the funny case of People vs Likakim, chine who
was convicted for drug possession and the lawyer ask for new trial
on the ground of newly discovered evidence what is the newly
discovered evidence in this case? The lawyer said passport, why?
Because in his passport he is not Likakim but another person,
Supreme court did not appreciate the lawyers contention.
May bagong kaso dyan 2013, Rumbawa vs Padilla-
Rumbawa, newly discovered evidence to, this is a case for
declaration of nullity of marriage, ung testimony ditto was chage
of witness kasi pumalpak ung abogado, so he wants new trial on
several grounds including excusable negligence, sabi nya had I
gotten a better equipped lawyer I would have won the case so I
am going to have a new lawyer a better one, or whether it is a
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newly discovered evidence, a repetition of the entire case again,
because that is the effect, because the judgment in the case in
effect will be vacated, and there will be re trial or trial de novo,
only those which are necessary the records of the case will remain,
so example you are granted new trial on the newly discovered
evidence, even if the judgment is vacated it doesn’t mean na mag
sstart uli kayo sa zero, No only on that particular newly discovered
evidence.
So in the case Rumbawa the Supreme Court said, how
could that be a excusable negligence? The basic rule is that fault
of the lawyer is the fault of client, vice versa, neither the
testimonies here will be considered newly discovered evidence.
When are you supposed to file a motion for new trial?
You are suppose to file it after judgment becomes final this is your
first remedy, either new trial or reconsideration. When the
judgment has become executory you cannot avail anymore of
these. The trial court has the absolute right to grant it or to deny
it.
Can you file a motion for new trial the second time
around? It depends. If your ground for your first motion for new
trial is newly discovered evidence, then you cannot file a second
motion for new trial but if your ground in your first motion new
trial either Fraud, Accident, Mistake, and Excusable you can still
file a second motion for new trial what is the rationale behind this?
Section 8 of Rule 15, The omnibus motion rule, meaning to say all
the possible grounds must already be alleged in the motion, so
when you file your first motion for new trial on newly discovered
evidence all the other ground, Fraud, Accident, Mistake, and
Excusable, should have been already availed of, but when you file
a motion for new trial on the grounds of Fraud, Accident, Mistake,
and Excusable, syempre you can still file another motion for new
trial solely on the ground of newly discovered evidence precisely
because that ground was not available when you first filed your
first motion for new trial.
When your motion for new trial is denied, what is now
your next remedy? Your next remedy is appeal, and when can you
appeal? Neypes doctrine applies here, meaning to say, upon
receipt of the order deny your motion for new trial you have the
entire period all over again, Let me just explain to you the deletion
in Rule 41 of paragraph A of section 1, nakalagay dyan the
following are not appealable, ung paragraph A dyan was used to
be order deny order for new trial, ngaun wala nayan , pursuant to
07-7-2 Administrative matter which took effect in 2007, does it
mean therefore that an order denying a motion for new trial is
now appealable? NO! why? because the last section of Rule 37,
that is not an oversight this is only to emphasize the last section in
Rule 37, it says there that your remedy against an order denying
your motion for new trial is not appeal from the order but rather
appeal from the judgment.
APPEAL
Before we go to the next remedy appeal, lalagpasan ntn
ang 38 to be consistent, we study now the next remedy for final
judgment, which is appeal, so where do you find appeal? You find
them in Rules 40 – 45, madali lang to, then after that balikan ntn
yung remedy against an executor judgments whichs is already
Rule 38 and 47, para systematic and chronological for purposes of
academics.
But let me metion about 121, because we were trying to
compare which is a motion for reconsideration which is the same
subject matter in rule 121 of criminal cases, you will note na
nawala dyan ung Fraud, Accident, Mistake, and Excusable but
newly discovered evidence is also a ground for new trial in criminal
cases. Ano yun? Errors of law or irregularities in the proceedings
don’t stop there qualify it, the irregularities which will prejudice
the substantial rights of the accused when during the trial. Itong
lahat nangyare in the course of the trial when we were discussing
rule 18 in relation to rule 118 I was telling you that if there is an
error in the pre trial order the lack of it can be an irregularity in
the course of the proceeding and that can be a ground for new
trial in criminal cases, when you speak here of “during” the trial
under rule 121, it begins with arraignment up to judgment, all
irregularities therein are included.
So we go now to the last remedy of the final judgment
and that is appeal. You find them in Rules 40 – 45, under Rule 40
that is appeal from MTC to the RTC within the district yan, hindi
regional ang concept ditto, in other words if the MTC of Manila
decides, you appeal to the RTC of Manila, even if Quezon City or
Makati are within the National Capital Judicial Region.
Any decision, final order, or resolution of the lower
courts appeal is only and solely to the Regional Trial Court of the
district, except when the MTC exercises delegated jurisdiction yun
lang, walang ibang exception. Ano ba yung delegated jurisdiction?
That is Land Registration and Cadastral Cases where the assessed
value of the property is not more than 100k and there are no
oppositors. When the MTC renders a judgment in the exercise of
its delegated jurisdiction, Appeal is not to the RTC but to the Court
of Appeals.
How do you appeal from the MTC to the RTC? Your
appeal is of 2 kinds, 1. Appeal by notice of appeal, 2. Appeal by
record of appeal, remember appeal by record of appeal includes
notice of appeal but you can file a notice of appeal without the
record, but when you appeal by record of appeal that is in addition
to notice of appeal, the most important point here is the time
frame, appeal by notice of appeal is 15 days receipt of the copy of
the order as against appeal by record on appeal which is 30 days
that is a very long period given by the rules, because you can file
your notice of appeal in just a minute and yet the court gives you
15 days to do that so that it would be most impractical for one to
file a motion for extension of time to file an appeal but as to
appeal by record on appeal, pwede pa yon but this applies only in
cases of multiple appeals now when I say multiple appeals what
we are referring to there is the subject matter constitutes several
parts independent of each other so that a resolution in one is a
final order which is appealable that is why, every final order there
is appealable and you do not appeal that by notice of appeal but
by record on appeal kasi hindi mo iielevate yung record sa
appeallate court it will remain at the trial court, the classical
example of this is settlement of estate, what is only elevated are
those documents or records which are relevant and material to
the pertinent issue.
Even in special civil actions there are mandatory multiple
appeals 67 expropriation 69 partition both takes 2 part.
When the appellant files a notice of appeal, when is
appeal perfected? There is a cross reference in Section 9 of Rule
41 even in Rule 40 that is a very crucial or important section in
appeal, Section 9 of Rule 41. Appeal is perfected upon the filing of
the notice of appeal as to the appellant only, but the court does
not loose jurisdiction of it yet, only upon expiration of period to
appeal, anyway once you file your notice of appeal, we are talking
of MTC ah, you file it with the Trial Court, you don’t file it in the
appellate court, and once you filed and perfected it is the duty of
the clerk of court to prepare the records for elevation to the
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Regional Trial Court, and he has 15 days to elevate that, take note
of the dates kasi pag dating ntn ng execution, that is the rationale
why bkit ganon sa Rule 39 because of the dates profounded in this
appeals under Rules 40 – 45 so pagdating don RTC, the clerk of
court now of the RTC, it is incumbent upon him to notify the
appellant within a period of 15 days to submit memorandum of
appeal, copy furnished the appellee who has the same period of
time within which to prepare appellee’s memorandum and on the
basis of the memoranda of both parties the court will render a
judgment trial here or the presentation of evidence is no longer
holds, puro nalang ito in writing, memorandum. If the appellant
does not submit its memorandum within the period prescribe in
the order that is ground for dismissal, if appellee does not submit
its memorandum that is not a ground for dismissal but that is a
ground already for rendition of judgment by the appellate court.
Fees are also jurisdictional requirement in appeal so that non
payment of the fess will be a ground for dismissal.
I emphasize Section 8 of Rule 40, because section 8 there
illustrates the doctrine held in Vda. De barera vs Court of Appeals,
saying that when the MTC dimisses the case for lack of jurisdiction
with or without trial that dismissal is a final order hence it is
appealable but when that is appeal ano pag appeal non? By notice
of appeal to the RTC and the RTC must take cognizance of it as if it
had been originally filed with it that is with or without trial in
lower, the only distinction is if there was a trial and it was
dismissed nonetheless, the records will be considered before the
appellate court yun lang ang distinction dyan.
Suppose the Trial court has no jurisdiction, in other words
it is with MTC, what the RTC will do is to remand the case to MTC.
Let’s go to Rule 41, Appeal from the RTC to CA what are
the modes of appeal here? Ganon din Appeal by notice of appeal,
2. Appeal by record on appeal, what is the distinction? The time
frame, the elevation of the record sunder rule 40 is within 15 days
from perfection of appeal, in Rule 41, 30 days, the clerk of court
of the RTC will first prepare the records of the case including the
transcript of the stenographic notes which is even stated that it
must be prepared in 5 copies, 2 of which must remain with trial
court and the 3 will be elevated there, once it is raffled to the
particular division of the court of appeals, preho din the clerk of
court of the court of appeals will now send to notice to the
appellant to prepare, ditto ung basic distinction, ang ihahanda
ditto is no longer a memorandum but an appellant’s brief and the
time frame here is 45 days, ito ang brief which is very long and
copy furnished the appellee who has the same period of 45 days
within which to prepare the appellee’s brief, copy furnished the
appellant who may or may not prepare a reply brief 20 days lang
yun, and on the basis of this briefs the court can render judgment
unless the court of appeals, call for clarificatory hearing yan ung
tinatawag na oral arguments, pag ntawag ka don mghanda ka ng
mgandang toga, di pwede barong don, may mga cross na
nagtatnong mga justices. Take note that oral argumentation
under the rules is not a matter of right. kaya when you file a
motion with the CA or Supreme Court don’t set that for hearing
because it is not a matter of right.
Just a reminder, to prepare an appellants brief, binabasa
nyo ung Rule 41 diba? Then up to the last section of Rule 41, bitin
ka, because that is not the end of it because the continuation of
Rule 41 is not Rule 42, but Rule 44 kaya ung appellants brief wala
sa Rule 41 yan, after rule 41, you turn your page to Rule 44 that is
the continuation of appeal from the RTC to CA and you will find
there the required contents of an appellants brief and this is
mandatory, non compliance with that is a ground for dismissal
under Rule 50, Section paragraph (f) kaya icomply mo yung
requirements for appellants brief
Rule 42
Let us go now to Rule 42, the appeal in Rule 42 is not by
notice of appeal or record of appeal, but rather it is by petition for
review that is the mode of appeal under Rule 43 and this is the
appeal from the RTC to the CA when the former that is the RTC
exercises an appellate jurisdiction. A very good example of that
would be a case of unlawful detainer or forcible entry, you already
know that these cases are originally and exclusively cognizable by
the lower courts so when an unlawful detainer case is filed with
the lower court and the judgment therein or thereof is issued by
the MTC, appeal therefrom is to the RTC, now from the RTC, the
appeal is no longer by notice of appeal but rather by petition for
review because RTC exercises appellate jurisdiction.
Rule 43
Going now to Rule 43, this is the appeal by the quasi-
judicial agencies to the Court of Appeals. The appeal here is also
by petition for review and not by notice of appeal. If you both still
retain the title of rule 43 including the appeals from the Court of
Tax Appeals, you better delete that part because the appeal under
Rule 43 no longer includes the Court of Tax Appeals, is already
elevated to the Court of Appeals it is no longer under Rule 43. And
so as not to passed you or in order to facilitate your retention of
these quasi-judicial agencies, you do not have to memorize all the
quasi-judicial bodies or tribunals appeals from which bodies go up
to the Court of Appeals. I would repeat for purposes of emphasis
that you have only to remember the following tribunals; the Court
of Appeals, the Court of Tax Appeals, the Sandigangbayan, the
COA, and the COMELEC whose decisions, final orders, and
judgment are appealable to the Supreme Court, all the rest that is
actually includes all quasi-judicial tribunals or bodies, the
decisions from these quasi-judicial bodies are appealable to the
Court of Appeals under Rule 43, which is by petition for review.
Please take note of section 12 of the same Rule 43, the effect of
appeal because unlike Rule 40, 41, and 42, upon filing of those
appeals, it stays the execution of judgment but appeal by the
quasi-judicial bodies under Rule 43 has a different effect. It says
under section 12 of Rule 43, the appeal shall not stay the award,
judgment, final order, or the resolutions to be reviewed unless the
Court of Appeals shall direct otherwise upon such term as it may
deemed just. So, so as not to frustrate or to make your appeal in
these quasi-judicial bodies “inutil” or useless, what you have to do
when you avail of Rule 43 is to invoke injunctive relief which is
under Rule 58 under provisional remedy because if you cannot get
an injunction from the Court of Appeals, there will be no stalling
or staying of the execution then your appeal under Rule 43 might
just be useless. Now going to the last kind of appeal under the Rule
is appeal under Rule 45.
Rule 45
This appeal is otherwise known as; an appeal on
certiorari, basic in your study is the distinction between Rule 45
and Rule 65. Rule 65 is a special civil action, while Rule 45 is a mode
of appeal. Remember that under Rule 65, you, or the petitioner, is
correcting an error of jurisdiction while in Rule 45, the appellant is
correcting is correcting an error of judgment while in Rule 65, you
can raise factual issues, but in Rule 45, you are limited only to
questions of facts. Now, from what tribunal or courts is appeal to
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the SC, under 45, as amended again by the administrative matter
which took effect again of December of 2007, they have included
here the Sandigangbayan and the Court of Tax appeals. So it is not
on the CA or the RTC, but you also include the Court of Tax
Appeals, and the Sandigangbayan. You go up to the SC via Rule 45,
but what you have to remember here is that, it is raised to the SC
on pure questions of law, questions of facts are not allowed so
that questions of facts are raised to the SC under this Rule, then
that would be a ground for dismissal considering or saying that it
is not the proper mode of appeal. So pure question of law, so
when is there a pure question of law? When the court does not
have to investigate evidence in support of the matters raised in
the petition or in the complaint then that is a pure question of law,
but if the court is required to consider or reconsider questions of
evidence or evidentiary matter then ordinarily, that would be a
question of fact. This is how to determine whether an issue is a
factual issue or a legal issue. If it does not require the presentation
of evidence but only a determination of whether the correct law
is applied on a particular situation then is it a question of law,
otherwise, it is a question of fact. Parenthetically, let me tell you
as a matter of exception, petitions for the writ of habeas data, the
writ of amparo and the writ of kalikasan are raised to the SC via
Rule 45 but in those petitions, the petitioner can raise both
questions of law and facts. So these are now our remedies on
appeal. To sum them up, appeal is the remedy against a final
order, resolution, decision or judgment, the other remedies aside
from appeal are petitions or motions for new trial or motion for
reconsideration once the period of 15 days to appeal to file a
motion for reconsideration or motion for new trial has expired
then you can no longer avail of these remedies, you are left with
two more remedies and these are petition for relief from
judgment under Rule 38 and annulment of judgment under Rule
47.
Rule 38
So, let us go now to these two remaining remedies, not
against a final judgment but an executory judgment where the
judgment has already been entered or there is already an entry of
judgment. Let’s start with Rule 38; Rule 38 is otherwise titled as
petition for relief from judgment, now this remedy as I said is
available when the judgment is already executory why is this so?
Because you cannot avail of this because it is a prerogative remedy
in other words, this is equitable remedy. These two remedies
against an executory judgment are equitable remedies and you
know the principle of equity, if there are available remedies, then
you cannot avail of these. In these remedies against an executor
judgment, have you not avail of new trial, reconsideration or
appeal because of your own fault then you cannot avail of these
equitable remedies of petition for relief from judgment. So, under
Rule 38, sections 1 and 2 are two different remedies against two
different problems. Here in section 1, it is petition for relief from
judgment, section 2 is petition for relief from denial of appeal. So,
what is the prescriptive period within which one can avail of
petition for relief from judgment. Remember these two periods
which must be complied with, both periods must be complied
with. Compliance with one will not qualify for availment for this
remedy. So you have to comply with both of these periods and
what are these periods? The 60-day period from knowledge of
judgment and 6-month period from entry of judgment, remember
about what I have been discussing about entry of judgment. The
date of entry of judgment is deemed to be that time when the
judgment has become final and executory not the actual
recording. So it is from that date of entry, you count six months
only within which, one can avail or during which a person or a
party can avail of the remedy of petition for relief, after the
expiration of the 6-month period from the entry of judgment, you
can longer avail of the petition for relief from judgment. Aside
from the 6-month period from the entry of judgment, the other
period which must be complied with is the sixty-day period from
knowledge about the judgment. When the party comes to know
of the judgment, he has only 60 days within which to avail of this
remedy of petition for relief from judgment. I repeat,
noncompliance with these two remedies will render the remedy
unavailable. Now, the possible problem, or question which must
be lurking in your mind is this, when does a party come to know
of the judgment? Is it not the party comes to know of the
judgment when he is notified of the judgment? The answer is yes,
when receives the copy of judgment, he is furnished a copy of the
judgment by the trial court, that is the time when he comes to
know of the judgment. Should he upon receipt of the judgment
wait and he waits for 60 days and avail for petition for relief from
judgment, the answer no precisely because an equitable remedy.
Upon receipt of the judgment, a party does not have and cannot
have to wait for 60 days so as to file a petition for relief from a
judgment because that remedy is not available to him. His remedy
upon notice of the judgment is either to file a motion for new trial
or motion for reconsideration or appeal from judgment, but not a
petition for relief from judgment because for the nth time this
remedy is an equitable remedy. Over and above the sixty days
period, he has also the six months period from entry to contempt
with.
What is the possible illustration where one may validly
file a petition for relief from judgment? When the party comes to
know of the judgment other or if another way other than the
official notification coming from the court. Give me a minute or
two to illustrate that clearly, so as A files a case against B and after
the presentation of evidence of A, the counsel of the plaintiff
rested his case, A tells his counsel, attorney, I am leaving for the
states and I will not be here for a year or six months and “bahala
ka na”, take care of my case and he leaves for abroad and yes
confined everything and entrusted everything to his counsel and
stayed in the US almost a year but when he returned to the
Philippines, his first move was to find out what happened now to
my case and when he went to the office of his lawyer, he found
out that the office was already close because while he was away,
his lawyer died and so he went to court and asked the clerk of
court, what happened now to my case? And the clerk of court, oh
there was already a judgment on your case and you lost in the
case, but there was already an entry of judgment, but he came to
know only of that now so he has to count from that kind of
knowledge, sixty days within which to file his petition for relief
from judgment. It is already beyond the six month period when he
came to know the remedy of petition for relief judgment no longer
applies. Supposed the judgment was entered in January 01 and
roughly estimated July 01, let us says January 01 to July 01, six
month period, it is within that period that the party should come
to know of the judgment. If he comes to know of the judgment
after July 01, then he can no longer file a petition for relief from
judgment. Supposed he come to know of the judgment on June
15, he has roughly 15 days only, June 15 by the time he comes to
know of it must not be counted from the time he came to know of
judgment on June 15 because of the limitation of the six month
period. If he comes to know of the judgment on June 15, he has
until July 01 within which to file a petition for relief from
judgment. If he comes to know of the judgment on the day when
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it was entered on January 01, he has also sixty days from January
01, that is roughly about of March 03, it is not a leaf year, just 60
days and he does not have until July 01, because these two periods
of sixty days and six month from entry must both be complied
with. What are the ground s for this petition for this remedy for
petition for relief from judgment, the grounds are the same for
new trial which are fraud, accident, mistake and excusable
negligence that is why when a party comes to know of this, then
his remedy is new trial and not petition for relief only when he was
not able to avail of new trial or reconsideration or appeal not
because of his fault can he avail of this equitable remedy. Where
should you file this petition? Is it a separate or distinct case? No,
although it is called a petition, it is akin to a motion because the
rule provides that you have to file it in the same court and
docketed under the same number. Now, if your petition finds
merit with the court, it is as if you’re granted with your motion or
a motion for new trial. If it is denied, it is up to you if you want to
file a certiorari, but to my mind it would be a wasted of time as
long as there is grave abuse of discretion, possibly, there is no
prohibition but ordinarily, the abuse there lies there is not
entertaining your relief from judgment even if it were meritorious
so that is the first remedy against an executor judgment or a
judgment has been entered.
Rule 47
The ultimate remedy available to a party is found under
Rule 47 which is annulment of judgment. This is the sign post of
remedial law that I have been talking about. Just like petition for
relief from judgment, this remedy of annulment of judgment is
also an equitable remedy meaning to say that you cannot avail of
this, have you the opportunity to avail of new trial or
reconsideration, appeal if you have the opportunity to do that but
you did not do due to your own fault, it has the same equitable
nature as petition for relief. Now, take note that under Rule 47,
this is only a remedy against the RTC and the lower courts there is
no such remedy of annulment of judgment against decisions, final
orders and resolutions of quasi-judicial bodies neither is there
annulment of judgment of the Court of Appeals, or the
Sandigangbayan, this is limited only to the RTC and MTC, to
Municipal trial courts in cities, Municipal Trial Courts and
Municipal Circuit Trial Courts. In fact, decisions of the RTC sought
to be annulled is exclusively and originally cognizable by the CA.
You cannot file that anywhere else while the last section of Rule
47, provides that annulment of judgment of the lower courts are
exclusively and originally cognizable by the RTC. So, these
remedies are available only to these courts and you have also a
time for these and you are given limited as to grounds you can
invoke in this kind of remedy you have only two grounds on which
you can depend your remedy of annulment of judgment and these
grounds are fraud again it is extrinsic fraud and lack of jurisdiction.
These are the only ground available for annulment of judgment
and what are the limitations? If you use fraud as ground for
annulment there is a limited period for that and the prescriptive
period is four years from discovery of the fraud if you avail of lack
of jurisdiction, the limitation is principle of laches or estoppel.
These are the limitations to the ground of lack of jurisdiction. If
the judgment is annulled, then you can re-file it so that would be
your remedy, unlike, incidentally, petition for relief, this is a
separate and distinct action, you can file separately, it is not a
continuation even if it is a remedy, even if it is a remedial measure
it is not a continuation of the action brought before the trial court.
So there you have all the remedies, both against a final decision or
judgment and the remedy against an executor judgment.
Now, there are certain things that I would like to teach to
this lecture relative to civil procedure before we go to Rule 39, I
would like to mention the fact that the Rules after 47 refer to the
court of appeals, you will note that there are cases which can be
filed in the CA in the exercise of its original jurisdiction even when
it is a concurrent jurisdiction, the CA can take of cognizance of it
originally or for the even first time are provided for in the Rules
48, 49, 50, 51, 52, 53, 54 up to 55, 56 would be about the CA.
Remember that there are also cases which you can file in the CA
in the exercise of its original jurisdiction so in the CA let me just
mentioned it is also a collegial body, it is composed of several
divisions and the SC is also a collegial body composed of three
divisions, the difference is that, while in SC, a majority decision
may be promulgated, in other words, it can be issued, it can be
released and it is a valid decision. In the CA, a majority of two
justices will not suffice; there must be unanimity of the three
justices in a division. Now, if one dissents in the CA, the presiding
justice of the CA will have to create a special division for the CA
consisting of five justices and the majority three will result to a
valid promulgation of a judgment. Let us go over the dismissal
under Rule 50, for your own safety or security, also go over Rule
51, although Rule 51, is somewhat a repetition of Rule 36
regarding judgment. Take note that the provision which I
emphasized section 2 of Rule 36 is repeated in Rule 51 section 10
where the date of finality of judgment shall be deemed to be entry
thereof, also take note of the harmless error which is not really
prejudicial to any party and because of this it cannot be a ground
for new trial when certain pieces of evidence were not considered
in the resolution of a case or in deciding a case then that is a
harmless error which does not prejudice any party and cannot be
a ground for a new trial or reconsideration they are harmless
errors.
Rule 39
With this, we can go now to Rule 39, why did we have to
discuss this as the last topic in our lecture? Because Rule 39 now
is, post judgment where there is nothing else to be done in the
trial or in the course of the trial, the end now of procedure is the
satisfaction of judgment and you find that in the Rule 39. Rule 39
is said to be the bible of the Sheriff, it a very lengthy rule but a very
important rule not so much perhaps academically as practically,
but the thread now in the bar but also to ask a lot of question
based on Rule 39. So, Rule 39 is titled execution, satisfaction and
effects of judgment, it consists this is the most lengthy rule
composed of 49 section so, we will, I will discuss it in summary for
your proper appreciation because of the sections there may be
discussed together with the other so I will try to correlate. First let
us go the basic principle regarding the execution of a judgment,
only a judgment which has been entered is executory and when a
judgment is executor it is necessarily, final. But a final judgment is
not necessarily executory and we put that graphically, you draw a
circle and draw another circle within the big circle. The small circle
stands for the final judgment and the bigger circle circumscribing
the small circle is the executor judgment. When does a judgment
become executory? When all the other remedies available against
a final and executory judgment did not progress, you have now go
the last procedure which is to implement the judgment this is
when money lies for lawyers, so you better take note of this. You
may be winning a lot of cases, but if you cannot execute then, you
remain a poor lawyer. But even if you have a few cases, but you
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can all execute and implement them then, you are making good
as a practicing lawyer. How do you execute an executor
judgment? General rule is, you execute an executory judgment by
filing a motion for execution so that any court cannot motu
proprio issue, it must be done via a motion and when are you
supposed to file a motion? You have to file with the trial court and
not and never with the appellate court as a general rule so that if
a case emanated from a lower court, let us say, the MTC and it
went up to RTC and then to CA and then to SC, where will you file
a motion for execution? You have to go back to the MTC that
originally handled the case, there you will file your motion for
execution. You know as you often heard and as you have studied,
issuance of the writ of execution is ministerial on the part of the
Trial court and if it is ministerial on the part of the trial court then
why is there a need of the filing of motion? A motion is still
necessary precisely because the court has to determine whether
the judgment has become executory because of the meaning that
an executory judgment is when all the other remedies to a party
are no longer applicable thus, a necessity of a motion. If for
example, A files a case against B and judgment was rendered in
favor of A and received a copy of a judgment on January 5 and it
is now March 05 and he goes to court and files motion for
execution and if the defendant goes there and said, “your honor,
why execute a judgment when I haven’t received a copy of the
judgment and the remedies of appeal, new trial, reconsideration
are still available to defendant B so that as far as he is concern, the
judgment is not yet executory. Thus, the necessity of filing a
motion even if its issuance is ministerial on the part of the trial
court.
Execution of judgment is matter of right or is a matter of
discretion. When is it a matter of right? When the judgment is
executory, it is a matter of right, or when the judgment is only final
and is pending appeal, then execution is discretionary or a matter
of discretion. Now, supposed you want execution of judgment
pending appeal, when are you supposed to file that motion? You
have to file that still with the trial court, provided that the period
of appeal has not expired yet and even the period of appeal has
already expired, provided, the records of the cases has not been
forwarded to the appellate court by the clerk of court then your
motion for execution must be filed with the trial court. The trial
court exercises again residual jurisdiction, but once the records of
the case had been transmitted to the appellate court pursuant to
the notice of appeal filed by the appellant you may file your
motion for execution pending appeal with the CA, the CA may
order the trial court to issue a writ of execution pending appeal.
So, execution as a matter of right and as a matter of discretion.
Execution of a judgment may either be by both motion or by
action and this is found in section 6 of Rule 39. Execution by
motion and execution by independent action, when can one ask
for execution by motion? You have a limited period of five years
from entry of judgment, thereafter, you can only execute
judgment by independent action, provided, the prescriptive
period for judgment has not expired yet which is a period of two
years. If a judgment was entered in 1990, January 01, 1990, you
have until December 31, 1995 to file a motion for execution of the
judgment. So you can do that by motion, you can execute
judgment by motion from January 01, which is the date of entry of
judgment up to December 31, 1995, this is a five –year period,. By
January 1996, you can only ask for the execution of judgment not
by motion but by filing an independent action until December 31,
2000. From January 1990 to December 31, 2000, that is the
prescription of judgment. If you did not do anything during that
period, either by motion or by independent action you can no
longer execute the judgment thereafter. So in my illustration by
January 01, of 2001, you have no remedy of execution then the
judgment can no longer be implemented , hence, the
judgment can no longer be satisfied. After December 31, 1995
until December 31, 2000, the 5-year period, you can execute
judgment by independent action, how will you go about this, this
is by filing an independent action, otherwise known as revival of
judgment or action to revive judgment. Where are supposed to
file that? This is an independent action, and considering that this
is an independent action, this is not a continuation of the same
action because that action has long been adjudged already. Now,
many books say that, an action for revival of judgment not capable
of pecuniary estimation and hence, it is cognizable only by the
RTC. In my opinion, I had to consider the kind of judgment,
because a judgment of money, to my mind, is an action,
nonetheless, which is capable of pecuniary estimation, so that for
example a judgment of 1000000 has been partially executed and
what remained to be executed is 250000 by independent action,
it is in my humble opinion, needs to be filed in the lower court
because the 250000 is within the jurisdiction of the lower court
and capable of pecuniary estimation. Let me tell you, we do not
have jurisprudence on the matter; the general consensus except
myself perhaps is that, an action for revival of judgment is an
action no capable of pecuniary estimation, it is your take. To
pursue my example that, on March of 1996, a party filed for an
action for revival of judgment so this is, let us say March 05, 1996,
if the judgment is revived, we have a judgment totally distinct and
separate from the original judgment so that this revived judgment
is not the same as the judgment which was entered on January 01,
of 1990, this revived judgment of March 05 1996, is totally
separate and distinct, hence, this judgment must be entered and
supposed this judgment is entered on May 15 of the same year,
from May 15 which is the entry of the revived judgment, May 15,
1996, you have to count 5 years therefrom, by which you can
execute this revived judgment by motion in the court that issued
or rendered that revived judgment, that is May 15, 1996, you have
until May 14, 2001 within which to file motion to execute the
revived judgment, thereafter, you have again five years within
which to execute the revived judgment by independent action so
on and so forth until your judgment is fully satisfied.
------------------------------------------------------------------------------------
When a party files a motion for execution pending appeal it is a
matter of discretion on the part of the court to grant or deny the
same. And there are certain requirements in order for the court to
grant a motion for execution pending appeal.
First, the motion must be a litigated motion. When the motion
must contain good reasons and then the grant of the motion must
be stated in a special order. The point is, what are good reasons
for a motion for execution pending appeal to be granted? Now we
are guided here by jurisprudence.
Now I would just refer you to certain cases for you to go over these
cases and find out for yourself what are good reasons and what
are not good reasons. I am talking of the case of Far East Bank and
Trust co vs Toh, Sr. which you'd find on 404 scra and new case of
Stronghold Insurance vs Felix which youll find in 508 scra.
In Far East Bank and Trust Co. the SC held that old age may be a
good reason and here it was considered a good reason under the
circumstances prevailing therein while in Stronghold Insurance
the health of the husband of the petitioner was not considered a
good reason so check out these cases.
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Old cases may also be instructive. Like the case of Banez vs. Banez
which you'd find in 374 scra they say its judgment in favor of the
wife in the action for legal separation and separation of conjugal
property and then the judge... and the wife asked for execution
pending apppeal the SC held this is not a valid ground for
execution pending appeal.
And another old case of Santos vs COMELEC, 399 SCRA. You will
know also that this is an election case The one who won the
election which was contested by the other candidate and when he
was proclaimed even if under contest the judgment of the court
was executed pending appeal that is accordingly a good reason
otherwise there will be no political representation of the members
of the community. So just check out these cases.
Now, what happens if we have here an executory judgment and
when you were able to get the writ of execution, its either the
judgment obligee or judgment obligor against whom the
judgment must be executed, died. So you have Sec 7 to answer
that.
In case of the death of the judgment obligee upon application of
his executor or administrator; In case with the death of the
judgment obligor against his executor or administrator or
successor-in-interest. Please take note just for reference purposes
that actions against the executor or administrator are limited to
actions found or enumerated under Rule 87 as distinguished from
those which must be filed as claims against the estate under Rule
86.
There are several kinds of judgments and the execution of a
judgment depends upon the nature of such judgment. The Rules
provide for execution of several kinds of judgment. Like for
example, a judgment for money. How do you execute a judgment
for money?
The written execution upon issuance by the court by the trial court
is addressed to the sheriff for the said sheriff to implement the
same. So let us just consider, illustration to.. uh.. for you to
understand the execution of a money judgment when a money
judgment is rendered by the court and a written execution is
issued to implement the same money judgment.
The sheriff goes to judgment obligor and gives him or furnishes
him a copy of the writ of execution together with the entry of the
judgment and informs him that he is collecting the money
judgment. Suppose it is a judgment for 5oo,ooo pesos. The sheriff
goes to the judgment obligor and says "Mr. Obligor I have here a
written execution for 5ook pesos." The judgment obligor says,
"Wait a minute ill go to my room." and he gets from his baul 500k
in cash and gives that to the sheriff. Is there a satisfaction of
judgment? No, because it was given to the sheriff.
The case of PAL vs. PALEA is instructive of the ban. As long as it is
not given or as long as there is no manifestation of satisfaction of
judgment by the judgment obligee or judgment creditor then
there is no satisfaction judgment. So don’t give it to the sheriff. If
he give now to the judgement obligee and he acknowledges it
then there is satisfaction of judgment. Suppose the judgment
obligor does not have cash and says "ok, I'll write you a check." if
the check is to the order of judgment obligee once it is encashed
there is satisfaction of judgment. It can never be issued to the
order of the sheriff, the sheriff will run away. That will not be
satisfaction of judgment now if there is no cash neither is there
check. Another way of satisfying or executing a money judgment
is through garnishment. Garnishment. How do you garnish? You
garnish not just the accounts, bank account.. but any debt or any
credit. That is why the rule says garnishment of debts and credit
that will include bank deposits, financial interests, royalties,
commissions and other personal property not capable of manual
delivery in the possession or control of third parties.
So, if for example the writ of execution addressed to the sheriff
and the sheriff brings that to the bank what should the bank do?
The bank should inform within the period of five days how much
money has the judgment obligor is keeping in his account and this
is by order of the court. The Bank Secrecy Law cannot prevail over
this order of the court because there is an order for garnishment.
And if the bank says, in our example of 500k pesos, "Well, the
judgment obligor has 1M in this, he sets aside this bank, sets aside
the 500k and delivers that to the court or to the judgment obligee
as the case may be within ten days from notice. So that is
garnishment.
Suppose there is no money in the bank, there is nothing to garnish,
no debts, no credits. Now this time the sheriff now will undertake
the third way of executing the writ of satisfying the judgment
through what we called levy on execution. What should the sheriff
levy on? he should levy on real and personal properties of the
judgment obligor. Who has control as to what properties of the
judgment obligor should he levy on? It is not the sheriff. But rather
it is the judgment obligor himself who has absolute control as to
what of his properties should be considered as payment or as
satisfaction for the judgment.
So, if for example the sheriff is in the house of the judgment
obligor and the judgment obligor is there in the house and it is
only for 500k pesos, The judgment obligor can tell the sheriff, "Mr.
sheriff just get one of my cars there one of my two cars you get
that 1995 toyota car that will satisfy if that is worth more than or
500k pesos and then the sheriff can no longer levy on the
property.
The problem is that whenever the sheriff goes to the house or
residence of the judgment obligor to levy on the latter's
properties... the obligor is not around more often than not we
always have an absentee judgment obligor and at this point since
the obligor who has control as to what of his properties should be
levied is not around hence it is now incumbent on the sheriff to
supervise the kinds of properties to be levied to satisfy the
judgment.
But the rule provide that the sheriff must levy only on personal
properties and once those personal properties levied on had fully
or sufficiently satisfy the judgment thats it. he should stop. but if
the personal properties that he found subject of his levy are not
sufficient to fully satisfy the judgment then he can levy on real
properties.
Personal properties are levied by taking actual custody of these
properties and the sheriff puts them in custodia legis not only by
physically taking custody or actually taking custody but this must
be properly receipted or properly documented.
Now how does the sheriff levy on real properties?
This is just a matter of annotation he goes to the register of deed
where the property is located and have the writ of execution
annotated. The levy annotated on the title of the property if the
property's untitled you know in the office of the register of deed
there is a book there of unregistered properties. So, whatever kind
of properties.
So even if the property is located outside of the jurisdiction of the
court those properties they are found to be owned or the
judgment obligor has rights over these real properties they can be
levied on.
So a case or a judgment rendered by the RTC of Manila which
judgment is now under execution and the property of the
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judgment obligor is found in Baguio City. Can that be levied? YES.
The sheriff goes to the RD of Baguio City and have it annotated.
After the levy on the properties, the properties are now in
custodia legis. For what purpose are these properties taken under
custodia legis? For purposes of selling them and the proceed from
those sales will be applied to the satisfaction of the judgment. So,
that is the purpose.
But before the sale, otherwise known as auction sale, there are
certain requirements to be complied with. To sum up just
remember the following: Notice, Posting, Publication.
The first two requirements are mandatory in all kinds of sale or
auction sale or execution sale which is Notice and Posting.
Publication is required only when what is under sale... under
auction sale are real properties and this must be published in a
newspaper of general circulation. You find the rule in 15. Rule 15
Notice of Sale of property on execution.
The notice must be given principally to the judgment obligor the
posting must be done on any public place like the post office as
exemplified in the Rule like the bulletin board of the Court, like the
market. But these places are only suggested places, they are not
mandatory. like the post office, now, who goes to post office
nowadays? So perhaps the judge can say "You post that at the
Megamall" Perhaps. will that be compliant? Definitely, that will be
a compliant. Only the problem that the notice must be taken
away, torn or might be defaced, is very high. That is why
sometimes Judges do not do that. But anyway what im tryin to
establish is that the places mentioned in the rule are only
suggested place - any public place. The church entrance, for
example, can be. Well, is there safety now in the church?
So, take note, Notice, posting and publication. Now when these
are complied with the auction sale, sale on execution can now take
place. the Rules provide for a particular time. It must be within the
hours of 9 in the morning to 2 in the afternoon. But, ah, this can
be also changed or altered. This is only recommendatory.
Provided, notice is duly given. Although it is unreasonable to
conduct the auction sale in the middle of the night. But anyway
Once all of these are complied with, the auction sale takes place
now. Where should it take place? Ordinarily, the Rules say in the
court. When I say in the court it is because the properties levied
on execution are capable of manual delivery they may be a simple
office table or a refrigerator or a washing machine or television
set. But if they are cars let's say 100 cars because the judgment
obligor is Toyota Motors, you hold your auction sale where the
cars are kept in custodia legis so perhaps in a warehouse. So this
is a matter of notifying, this is a matter of notice, as to where the
auction sale is going to take place.
Who can participate in the auction sale? ANYBODY can participate
in the auction sale except the court personnel including the judge,
sheriff, and his staff. they cannot participate in the auction sale.
The judgment obligor? Can he? Of course! But look, why would
the judgment obligor go there where in the 1st place he does not
have money that's why his properties were levied. How about the
judgment obligee? well, he is in the best position to be the
purchaser of the properties under auction. Why? Because he does
not have to spend money he does not have to shell out. So when
the purchaser is the judgment obligee he does not have to shell
out any money.
Suppose the judgment debt is 50ok pesos or let's put it in 1M. And
then at auction is a Toyota Corolla and he wants that for... it is
bidded at let’s say 800k pesos and to outbid the highest bidder,
he says "ill bid it at 850k pesos" so he gets the car. Does he shell
out anything? No! Because the judgment debt is 1M. In fact, he
can still collect P150,000 because his highest bid - the highest bid
- which he put up was only for P850k. So in many instances, it is
really the judgment-obligee who is at the auction site because he
would like to be. He does not have to shell out something because
it is like getting money from his left pocket an putting it in his right
pocket.
In what instances may a judgment obligee as the highest bidder
still pay?
There are two instances. The first instance is when his bid is higher
than the judgment debt. Suppose he likes the car so much because
it is a brand new Toyota Corolla and the judgment debt is only 1M
and that car for example is still worth 1.2M so he bid at 1.1M.
Should he pay? YES. He should pay the excess of the judgment
debt as bidded. So, he pays only 100k because the 1M will be
equated to the judgment debt.
The other instance where the purchaser-judgment obligee is
required to pay is when there is a third-party claim. Now, this
third-party claim which you'd find under Sec. 16 of Rule 39 has the
same nature of third party claims which you find in the provisional
remedies of preliminary attachment and replevin, Rules 57 and 60
respectively.
So that when a third party , not a party to the case, of course,
executes an affidavit of third party claim and delivers that affidavit
of third party claim to the sheriff. The sheriff is bound to deliver
that to the third party claimant unless the judgment obligee posts
a bond to secure the judgment, or rather to secure the third-party
claimant.
Please take note that it is not the third-party claimant that posts
the bond but rather it is the judgment obligee that posts the bond
to secure the third party claimant.
Now suppose, the third party claimant's claim is frivolous. Because
it is untruthful. he has not really.. He has no right over the
property; he does not own it. Now, what is the remedy? The
remedy of the judgment obligee is to claim against the third party
claimant.
So this is another instance where the purchaser-judgment obligee
has to pay because there is a third party claim. The rationale
behind that because the right of ownership over the property
under auction is not yet determined. So he has to pay.
If later on it was determined that it is really the property of the
judgment obligor then his deposit will be discharged. So this is the
levy on execution. When the purchaser who bids does not pay,
what is the effect of that? From then on, he will be blacklisted. He
will be disqualified from participating in the case.
When does the purchaser of a property in an auction sale become
the owner of the property? If the property under auction are
personal properties capable of manual delivery, it is immediately
delivered to the proper… to the purchaser and the purchaser takes
hold of the property which is capable of manual delivery after
paying the purchase price. At that time, does he become the
owner of the property? The answer is even more than the time.
Why? Because the ownership retroacts to the time of the levy. So
he was the owner of the property from the time of the levy. So if
the auction sale took place in December and the levy - the taking
of the property - was in August, the purchaser became the owner
of the property as of August and not just as of December when it
was delivered to him. This is with personal properties capable of
manual delivery because those which are not capable of manual
delivery, and more particularly real property, has a different rule
on the matter.
When real properties are the subject of an auction sale, and there
are purchasers, the highest bidder purchases the property; does
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he become the owner of that real property when he pays the
purchase price? The answer is NO.
When does the purchaser of the property become the owner of
that property? Only when the title over the property is already
consolidated in his name. And the consolidation takes place only
after the expiration of the period of redemption. And when is… or
what is the period of redemption? The period of redemption is
that one-year period from the registration of the Certificate of
Sale because if real property is the subject of auction it is
mandated by the Rule that the same must be covered by a Deed
of Sale and the Certificate of Sale must be registered with the
Register of Deed of the place where the property is located.
Now, upon registration, you count, the one-year period is counted
therefrom within which the property may be redeemed. Within
that one-year period, the property may be redeemed. And who
can redeem that property? There are two persons. two kinds of
persons who can redeem that property. You find that in Sec. 27 of
Rule 39.
The first kind of person is the judgment obligor or his successor-
in-interest. His heir or successor-in-interest. The second kind is the
person otherwise known as a redemptioner.
At this point,let me tell you that you have to understand the
meaning or the concept of a redemptioner. Possibly, memorize
paragraph b of Sec. 27 of Rule 39 where it is the definition or the
description of a redemptioner.
A redemptioner is one who has a lien subsequent to the lien under
which the property was sold. The sale on execution that we are
talking about - the lien here is the levy on execution. And from the
date on the levy on execution , the person who dealt with the
property from the time of the levy until it was sold are lienholders
subsequent to the lien under which the property was sold.
Because if you're lien was prior to the levy on the property then
you are not a redemptioner. Only those whose lien are
subsequent to the lien under which the property was sold.
Consider, in relation to this, you have to correlate this with sale on
attachment. Under Rule 57, Preliminary Attachment, a provisional
remedy, you can apply for a Writ of Preliminary Attachment at the
commencement of the action. So if the action commences or was
commenced in 1990; then in 1990 you can already ask for a writ
of preliminary attachment if the action was adjudged or a
judgment was rendered on the action in 1990… or year 2000, in a
ten-year period. It was commenced in 1990 and it was… judgment
was rendered in year 2000 - it is a ten year period. Remember that
the attached property secures a favorable judgment so if the
judgment was rendered in year 2000. In that span of one year,
there may be some person who took interest in the property
which was already a subject of a writ of preliminary attachment
and these who had lien on the property after the issuance of the
writ of preliminary attachment are lienholders subsequent to the
lien under which the property was sold because at this instant, you
are not selling the property pursuant to levy on execution but you
are selling the property in auction pursuant to a levy on
attachment. When did the levy on attachment take place? Year
1990. So, if there are other attaching creditors, mortgagees over
the same property after the writ of preliminary attachment was
issued - they are REDEMPTIONER. Because their liens are
subsequent to the lien under which the property was sold.
So, these two kinds of persons may redeem the property sold on
auction within the period of one year from entry of the judgment.
Entry of the judgment.
Now, if the judgment obligor redeems the property, there will be
NO further redemption. Why? Because the property has returned
to its owner. It is the judgment obligor who is the owner of the
property. So it has returned to him, it is now in his possession. He
is again the owner of the property. So who can get that from him?
No one can. And the law is protecting him as owner second time
around of the property. so once the judgment obligor redeems the
property, no further redemption. And the judgment obligor has all
the time.. in all instances, i mean, has one-year period from the
registration of the Certificate of Sale, he has one-year period
within which to redeem the property.
Let's consider the registration of the Certificate of Sale again as
January 1. So he have until December 31 of the same year within
which to redeem.
Suppose the judgment obligor did not redeem it, but a
redemptioner redeems the property in January 15. Then the
judgment obligor can still redeem that up to December 31
because he has one-year period. How about a redemptioner? A
redemptioner only has sixty days in which to redeem that from
the last redemption.
So if what... If it were January 15, that will be sixty days, will be
about March 18 or March 17 depending on whether it is a leap
year, February, is a leap year or the year is a leap year because
there are 28 days in February, but what I'm trying to point out is
that there is only a sixty-day period from the last redemption
within which redemption, another redemption, can take place by
a redemptioner. But as far as the judgment obligor is concerned,
he has the entire one-year period.
Suppose, our one year period is from January 1 to December 31.
Suppose on December 15, it was redeemed by a redemptioner.
Can it go beyond the one year period? The answer is YES.
So, you count sixty days. It can be redeemed by another
redemptioner from December 15, count sixty days, it can still be
redeemed by a redemptioner. How about the judgment obligor?
With more reason. Because he is the owner of the property that
he has also sixty days or beyond the one year period in this
example from December 15 up to February 15, rough estimate,
the property can still be redeemed by any redemptioner or with
more reason by the obligor.
Why is there successive redemption.. in the Rules? Because the
more redemptions there are, the better for our economy. And the
better for compliance or fulfillment or payment of obligation. with
just one property, many obligations are paid for and nobody
losses. Everybody wins. Because for every redemption, for every
period, for every period of time alloted by the Rule, the
redemptioner pays 2%. So if the redemption period again is from
one year, or January 31 or January 1 to December 31, and a
redemptioner redeems it on January 15 then he pays 2% over and
above - 2% interest over and above - the price, the purchase price
of the property as well as other expenses like the attorney's fees,
like costs, so on and so forth. Plus two percent interest. So that
the next redemptioner whether he redeems that within the period
of five days.or within a period of - whether he redeems that on
the fifth day from the last redemption or on the 55th day of the
last redemption, he pays 2% interest from the last purchase price.
As far as the judgment obligor is concerned, he pays only 1% per
month. So in our example, if the obligor redeems the property in
May of that year, he pays 5%. That is a five-month period. If he
redeems it by December, he pays 12% of interest. So that is
redemption by a redemptioner or the judgment obligor or his
successors-in-interest.
After the period of redemption has expired, there is consolidation
of title and from that date of consolidation the purchaser or the
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redemptioner as the case may be, becomes the owner of the real
property. So, that is as to redemption.
Suppose, after all this auction sale, after all this levies on the
properties, the judgment debt has not been fully satisfied. What
are the other remedies of the judgment obligee to recover fully
the judgment debt?
The Rule provides for examination of the judgment obligor under
Rule 36 and then examination of the obligor of the judgment
obligor under Rule 37. Then another remedy is under Rule.. under
Section 41. So Section, I'm not..[????] Section. not rule. Sec. 36,
Sec. 37, Sec. 41 and Sec. 42. These are the remedies. 41 -
Appointment of receiver, 42 - Sale of Ascertainable interest. These
are the remedies.
Now, if all... if all these remedies have been availed of and still the
judgment was not fully satisfied. Well, blame yourself. because
you gave a loan to someone who could not pay you. You might just
as well legally kill yourself. So this has.. These are about the
execution.
Just a note. When we took up Section 6 which is execution by
independent action which means revival of judgment. Please
don’t confuse that with revival of judgment you file under Rule 34.
The revival of judgment here under Rule 34, is a prerogaritive or is
the privilege of the purchaser of the property. The purchaser of
the property. Because after paying the purchase price, he did not
get the property, for one reason or the other and so one of his
remedies is also revival of judgment in his name so that he can
execute the judgment.
And, uh, the last two sections here need clarification. Written
clarification. But I have already discussed res judicata under Rule
16, Motion to Dismiss is a ground for Res judicata. Here under Se.
47 of Rule 39, we've also res judicata. Paragraph 1 here of Res
judicata refers here to estoppel by judgment while the last
paragraph refers to conclusiveness of judgment. Just check that
please.
Then, you have the last section which is Sec. 48, this part is
important. this is also bar material. this is enforcement of a foreign
judgment. The general rule is that, any judgment rendered
outside the Philippine jurisdiction is not and cannot be
implemented in our country. We are sovereign on our own so
what is the remedy? The remedy is Sec. 48 of Rule 39 which is
enforcement of a foreign judgment.
If A and B, for example, are American citizens now who were
formerly Filipinos and they foreign out to the United States and
let's say the County Court of California or San Mateo California
rendered a judgment relative to properties of A which are found
in the Philippines. That judgment is beyond our jurisdiction. That
cannot be implemented here in the Philippines. Your remedy is to
file an action to enforce that judgment here and this is an action
not capable of pecuniary estimation then it is cognizable by the
Regional Trial Court. And what is the venue? The petitioner or the
plaintiff's residence because this is a personal action even if it
concerns real properties then it is a personal action, venue must
be the residence of the plaintiff or any of the plaintiff or that of
the defendant or any of the defendant at the option of the
plaintiff.
Final word. There are certain properties which are exempt from
execution. The enumeration in Rules are 13 kinds of properties
and you find it in Sec. 13 of Rule 39. So, triple 3. Section 13, 13
kinds of properties, in Rule 39. Just check it out.
Thank you and Good day.
AIRRS
Rule 57: Preliminary Attachment
Rule 58 Preliminary Injunction
Rule 59 Receivership
Rule 60 Replevin
Rule 61 Support Pendente Lite
Nature of PromRev
Being provisional remedies, they are dependent, contingent, or
adhere to a principal action. So that you cannot find an action for
preliminary attachment. It must always be adhered to the
principal action.
Bo. Conciliation proceedings – n/a to PromRev
Jurisdiction over these provisional remedies
GR: where the principal action is pending
EXPN: SPL – cognizable only before the RTC since incapable of
pecuniary estimation
EXPN to EXPN: In crim cases When there is joinder of causes of
action
Say: Seduction is cognizable with the MTC because of penalty
imposable. Support and SPL can be filed before the MTC with
acknowledgment of a child.
JURISDICTION ON SUPPORT PENDENTE LITE
Remember that it cannot be taken cognizance of by the inferior
courts because support is an action which is incapable of
pecuniary estimation. Therefore, support pendente lite is only
cognizable by the RTC because support to which it adheres is
incapable of pecuniary estimation. Exception: In criminal cases.
Because the present rules on criminal procedure speaks that once
a criminal case is filed, the civil aspect is deemed instituted with it
under Rule 111.
Hence, if the action is criminal in nature but cognizable by the
inferior court and the prosecution includes the civil action for
support, then support pendente lite can be taken cognizance of by
the inferior courts.
Example: complaint for seduction which is cognizable by the
inferior courts. And together with that you pray for the
acknowledgment of the child (suppose merong anak) and you pray
for support pendente lite. In this instance the support pendente
lite is taken cognizance of the inferior courts.
In Receivership: both inferior courts and RTC.
In Replevin: both inferior courts and RTC.
In Injunction: both inferior courts and RTC.
In Attachment: both inferior courts and RTC depending now on
the principal action to which the provisional remedy attaches.
REQUIREMENTS for PROMREV
GR:
1. Affidavit
2. Bond
Note:
Page 41 of 95
 Peculiarity of rule 57 (Writ of Attachment). Unlike all other replevin or regularity of the
bonds which answer only for damages, it is only in Rule 57 receivership issuance of the writ.
will the bond answer for the judgment. So you underline the support No Bond.
word judgment. Kasi dito mo lang makikita yan sa Rule 57. pendente lite SPL was discharged because there is no basis
Vs. to stand with
Because in Rules 58-61, the bond answers for damages only. * The counter bond, in effect, automatically discharges the writ.
While in Rule 57, the bond answers for judgment.
Ano'ng ibig sabihin nun? Section 5 speaks of a cash deposit or a counter bond. The counter
Sometimes damages can be separated from judgment. But bond will answer for the judgment. The cash deposit will also
in most instances hindi. Let's say defendant is ordered to pay answer for the judgment,
P20,000 as principal obligation and damages of P10,000, so
hiwalay. In other cases the bond or counter bond only Claim for damages – Sec 20, Rule 57 – a general provision
answers for the P10,000. applicable to all PROMREV except for SPL. Equivalent to SPL of
But in preliminary attachment, the bond or counter bond claim for damages is restitution or reimbursement.
answers for the P30,000, judgment and damages.
PRELIMINARY ATTACHMENT (RULE 57)
Do not be misled therefore by cross-references to
Section 20 by the other rules. - Putting the property under custody of the court
Do you notice that? di ba puro cross-references. Section
8 of Rule 58, Section 9 of Rule 59, and Section 10, Rule When to file
60 cross-refer to Section 20, Rule 57. The cross- At the commencement of the action or any time before
reference is correct but the difference is that the bond entry of judgment
and counter bond in all these provisional remedies
answer only for damages. But in writ of preliminary Jurisdiction:
attachment because of its precedent section which is GR RTC
Section 19, which answers for any judgment. EXPN: Court that has jurisdiction over the case. Hence if there is a
case before the MTC you file writ of PA before the MTC.
EXPN: SPL only verified complaint
Normally attachment is for big cases. It would be impractical to
How do you secure, aside from these requirements, the writs for avail of attachment for small cases since you will spend more than
these provisional remedies? what you will get.
A:
1. Preliminary attachment, you may secure it ex parte. Although Purposes of Writ of PA.
the writ cannot be implemented ex parte but it can be issued 1. Secure satisfaction of the favorable judgement not to
ex parte. secure favourable judgment. The latter is for the court to
2. Preliminary injunction, as a general rule you cannot secure it decide.
ex parte under Section 5, Rule 58, although in cases of IF you secure the property the satisfaction of the
urgency, that injunctive relief for a period of 72 hours can be judgement is almost assured. You are not going to
granted summarily (meron pa din notice and hearing for due sale on execution but on sale on attachment.
process). That is how stringent in applying for injunctive relief.
3. Replevin, you cannot get it ex parte. 2. Forcing the adverse party to come into the negotiating
4. Support pendente lite, there is a peculiar provision under table. – this is unwritten purpose and not in the Rules.
Section 2 (Rule 61) wherein the respondent, within a period Say: You a businessman you can attach the property of a
of 5 days from notice, is bound to file his comment. And if he sari-sari store. The sari-sari store shall be forced to
does not file his comment, the case will be heard on the negotiate to avoid attachment.
application only (Section 3) within 3 days.
3. To covert the action strictly in personam to quasi-in rem.
How do you discharge the writ once the writ is granted or issued? The court acquires jurisdiction over the res.
A: Once the court acquires jurisdiction over the res you could
Preliminary 1. Sections 5, 12 2. a motion questioning proceed over the case even if no jurisdiction over the
attachment and 13 of Rule the propriety or defendant.
57. Cash regularity of the Limitation: Once you execute judgment you are limited only
deposit or issuance of the writ as to the res since the court has no jurisdiction over the
counter bond; (Section 13) defendant.
or
2 Basic Requirement of the Writ of PA (Sec 3, R 57)
preliminary counter bond* 1. Only remedy: 1. Affidavit
injunction does not file a motion NOTE: The 4 requirements must be contained in an affidavit.
replevin discharge a writ questioning the So your affidavit is pro forma or insufficient if it does not
receivership of preliminary propriety or allege these 4 basic requirements as enumerated under
injunction, Section 3.

Page 42 of 95

4 REQUIREMENTS (GECS)
a. Valid grounds – as enumerated in section 1 Rule 57. Note
these grounds are exclusive! (MEMORIZE!!!)
6 GROUNDS (Sec 1, Rule 57) (SETIRO)
A-C – action for vs. D-F action against
i. Action for the recovery of sum of money and
damages, excluding moral and exemplary damages,
arising from law, contracts, quasi contracts, delict
and quasi delict directed against a party who is to
depart from the Philippines with intent to defraud.
ii. Action for the recovery of money or property
embezzled by the defendant who is a public officer,
officer of a corporation, attorney, factor, broker,
agent, or clerk.
there must be a fiduciary relationship between
the applicant and the respondent.
iii. Action for recover of possession of property unjustly
taken against a party who removed, disposed, or
does not disclose it, or who hid these properties
iv. Action against the person who is guilty of fraud in
contracting a debt or incurring obligation upon
which the action is brought or in the performance
thereof
v. Action against a person who tries to dispose the
property guilty of fraud
Say:
A businessman who was engaged in buying and
selling. So when he owed somebody a sum of
money, that somebody filed a case against this
businessman and applied for a writ of preliminary
attachment on the ground that the businessman was
disposing his property in fraud of creditors.
Ruling: Writ is not proper. He is disposing his
property in line of his business precisely he is in buy
and sell. If he does not dispose his property, how will
he ever be able to pay you. The attachment was
invalid.
Vs
A businessman who had a sari-sari store. A case was
filed against him for a sum of money and a writ of
preliminary attachment was applied for. The
businessman is selling the goods in the middle of th
night.
Ruling: Writ of preliminary attachment was validly
issued because there was disposal of the property in
fraud of creditors. Even if the disposal was made in
line of his business, the SC held that the disposal was
made at midnight and through the backdoor. So
there is fraud.
vi. When the defendant is outside the country and who
can be served the summon through publication.
This ground is peculiar because it speaks about his
situation or residence. So in this instance, any person
who left the country and temporarily reside there,
you file an action and you can apply for a writ of
preliminary attachment.
But take note of the last phrase there and those who
may be served by publication. So you cross-refer
that to Section 15-17 of Rule 14 on Summons, who
must be served through publication. It applies only
on actions in rem or quasi in rem. Actions which are
strictly in personam, summons by publication is not
allowed.
Note:
One of the objectives of a writ of preliminary
attachment is to convert an action which is strictly in
personam to an action quasi in rem. Once you
convert it, then you can now serve summons
through publication.
CASE DOCTIRNES
Mangila v. CA (2001 BAR)
Doctrine: There are three stages in the Writ of PA
1. Issuance of the order
2. Issuance of the writ
3. Implementation of the writ
• In the first two stages, the court need not have
to acquire jurisdiction over the person.
However, in the third stage the prior or
contemporaneous service of summons over the
person of the defendant is necessary for the
court to acquire jurisdiction over the person of
the defendant.
Here, SC ruled that the implementation of the writ of
PA was wrong since there was no earnest effort in
serving summons despite the fact that Mangila is
outside the country.
When the writ was implemented Mangila was
already in Guam. She was here before the writ was
implemented. The post service after her return
would not cure the jurisdictional error.
Chuidian v. SB (BAR MATTER)
Doctrine: Discharged of prelim attachment and the
property under the writ becomes in custodia legis to
await satisfaction of judgment.
Chuidian is a crony of Marcos and was able to secure
a loan from Phil Guarantee in million of dollars
alleging to be used in the Phils. Business but actually
was invested by Chuidian in Silicon Valley, California.
For failure to pay, they entered into a compromise
agreement. A letter of credit was issued in favour of
Chuidian granting him letters of credit which he
could withdraw USD100K per month.
After EDSA revolution, PCGG filed a case before SB
to recover the letters of credit. PCGG applied for a
writ of PA which was issued by SB.
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When Chuidian returned to the Phils, he filed a
motion assailing the issuance of the writ of PA under
section 13.
SB ruled the following against him
1. Not around
2. Committed fraud in the performance of the obli
3.
Issue: WON SB abuse its discretion
SC: When the cause of action is grounded in the
same ground as in the application for the writ of
prelim attachment you cannot discharge the writ of
PA through a mere motion under Section 13
otherwise you are resolving the principal action
through a mere motion and this is going through the
back door.
Here the principal action is recovery of sum of
money due to fraud which is the same ground as the
writ. Hence, if the SC resolved the writ, as if they are
deciding the principal case. SC ruled that the only
remedy is post a bond under Section 12.
3 Stages in Writ of PA
1. Issuance of the order – no need of jurisdiction
over the defendant
2. Issuance of Writ - no need of jurisdiction over
the defendant
3. Implementation of writ – court must acquire
jurisdiction after the defendant.
NOTE: The first two stages may be done ex parte. But
the last stage must always be with prior or
contemporaneous service of summons. Hence, you
can avail of paragraph f of Section 1 of Rule 57 in
converting the action in to an action in rem. Because
the writ of preliminary attachment can be issued
even without service of summons.
In the application for the writ of preliminary
attachment, there are three stages. Yung una hindi
mo kailangan ng summons. So you can already apply,
on the basis that the defendant is outside of the
country. You apply irrespective whether the
summons can be issued or not because it can be 2. Bond – Applicant must post the bond that is duly accredited
issued ex parte. But dito lang sa issuance. Pero pag
hawak na yan ng sheriff, i-implement na niya under
Section 7, levy on attachment, hindi ka pwede mag-
levy on attachment if the court has not acquired
jurisdiction over the person of the defendant. Kaya
nakalagay diyan, prior or contemporaneous. Prior is
Mangila case. Contemporaneous sabay na ng pag
implement ng writ of preliminary attachment ang
service of summons.
3 ways to lift Writ of PA
1. Posting of bond or cash deposit
2. Motion assailing the propriety of the issuance of P35million. However, Satsatin only remitted P9million to the
writ
3. Sec 5 – means to lift is through cash deposit or process they ask for the issuance of the writ of PA. Torresses
counter-bond – writ has issued but not yet
implemented
Vs.
Sec 5 – means to lift is through cash deposit or
counter-bond – writ has issued and
implemented
Vs.
Section 13 – motion to lift the writ assailing the
propriety of the issuance.
Note:
A. The bond is different from cash deposit.
However, you cannot use property deposit to
discharge the writ since it is not in the Rules.
B. If you avail Section 12, you can still apply section
13 even you already availed of section 12 since
Sec 12 is not a bar to avail Sec 13. In Sec 12
immediately the writ is discharge and you
recover possession of the property again.
However, you can still avail Section 13 to
question propriety of the issuance of the writ.
The purpose of Section 13 is to release the bond
not the return of the property since already
released using Section 12.
b. Value of the prop. Sought to be recovered must be equal
to the sum prayed for in the order less all other counter
claim.
Meaning if you are securing P1M be sure to attach
property at least P1million. In actual case you attach
property much more than the obli.
If the property is not sufficient, attach more property and
there is no limitation as long as the order prayed for must
be equal to the order.
c. There must be a valid cause of action
d. There must be no sufficient security
If there is security there is no need of attachment since
already secured by mortgage.
Say: Prop is 2B and the claim is 1b. The remaining P1B can
still be attached by other creditors subsequent to your
lien.
otherwise it is null and void. Even the writ is null and void.
Bond is required of the applicant. Counter bond is required of
the person against whom the application was filed. Deposit
can be cash either on the part of the plaintiff or the defendant
as the case may be.
Torres v. Satsatin (2009 case)
Doctrine: Bonding company must be accredited by the SC
otherwise the posting of bond is null and void which is fatal to
the grant of promrev.
Sibling sold a property through an agent, Satsatin, worth
Torreses. Hence, they sought to recover the balance and in the
learned that after the sale of the property, Satsatin was able to
acquire numerous properties and posted the bond.
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 Satsatin questioned the bond since it was posted before the - Applies only when the act is continuing act. Since if it has
issuance of writ. Satsatin also posted the counterbond. been done it cannot be undone anymore. Remedy is ask
for damages.
SC ruled that the bonding company is not accredited by the SC
and only accredited in Makati, Pasig and Pasay and not Proper remedy if the house is already finished construction:
accredited in Dasmarinas Cavite where the property is located. 1. Destruction of the house; or
Hence, the bond is nothing and the issuance of the writ of PA is 2. Only damages
null and void.
Example:
CLAIM FOR DAMAGES You go home tonight finding the home in total darkness because
- ONLY Before finality of judgment otherwise claim is deemed electricity was cut.
waived. Use: Mandatory injuction – return to status quo (ibalik kuryente)
- Not including moral and exemplary damages Vs.
- Unlike in other promRev, it is only in Writ of PA that the bond When you go home there is notice of disconnection.
answers not only for the damages but also for the judgement Use: Prohibitory injunction – maintain the status quo (retain the
unfavourable for the applicant. electricity).

NOTE: Common error of the students think that since the 3rd GR: Notice and Hearing is mandatory prior to Writ of PI
party claimant files his claim, then the 3rd party claimant should Because of its urgency, the Rule provides TRO to deter the possible
file for the bond. Atty. Brondial corrects that it is not. The applicant happening of adverse event.
for the writ who should file the bond without prejudice, of course,
to a filing a case against the 3rd party claimant who filed a 3rd 2 KINDS OF TRO
party claim frivolously and fraudulently. And that case can be 1. 72-HOUR TRO – effective upon issuance
threshed out in the same action or even in a separate action.
2. 20-DAY TRO- effective upon receipt of notice.
PRELIMIARY INJUNCTION (RULE 58)
May the court call for the hearing prior to issuance of TRO?
Principal action – Injunction
Yes. It is discretionary upon the court even if the court can grant
Seldom will you find an action filed specifically for injunction
the TRO ex-parte. So court can conduct a hearing and it is not
only. It is coupled always with other causes of action. Like
grave abuse of discretion.
damages, or recovery of property with injunction and prayer
for preliminary injunction and TRO
Now the executive judge of the multi-sala court can grant the TRO
ex-parte of conduct a summary hearing. Hearing is discretionary
Jurisdiction
not ministerial.
GR: RTC only
XPN: If on appeal, to the court where the case is pending
Status quo – the last peaceful undisturbed situation.
While injunction can be availed of in any court, including the SC,
but if you read cases and statements to the effect that you cannot
3 REQUIREMENTS FOR PI OR TRO (EVI)
file for an action for injunction to the SC it is because it is not a
1. Right in esse or substantial and existing actual right
court of original jurisdiction over this action except certiorari,
Say: Your parents told you that their property shall be
prohibition, mandamus, quo warranto, habeas corpus
sold since they are already old. But you object since you
have a share in the inheritance.
EXPN: Joinder of causes of action.
You cannot file prelim injunction since your right is not in
Say: If you join with other civil action it depends. Like CPM,
esse yet. You only have an inchoate right.
they are concurrent jurisdiction in RTC, CA, SB and
SC.
2. Such right was violated or threatened to be violated
Territorial Effect:
Idolor v. cA
If issued by the RTC – only within its jurisdiction
Loan secured by mortgage and was not paid.
Vs.
Restructuring of loan was made however Idolor still failed
If issued by CA/SB/SC – entire country
to pay. Forclosure of REM was made and the title was
consolidated after the right of redemption. One day after
Contrast this with Search Warrant –
the consolidation. Idolor moved to invoke right of
If issued by RTC of QC and MLA – valid in the entire country
redemption.
If issued by other RTCs- only within its jurisdiction
Ruling: No more right in esse, hence, writ of PI cannot be
If issued by SB/CA – entire country
invoked.
2 KINDS OF PRELIM INJUCTION
1. Prohibitory – seeks to maintain the status quo (wla gagalaw) Bristo-Mayers Case
2. Mandatory – seeks to return to the status (ngalaw na or Doctrine: The purpose of the bond for the issuance of any
ginagalawan p din). provisional remedy is not to answer the satisfaction of

Page 45 of 95
 judgment but merely to answer for damages the adverse EXPN: Joinder of causes of action it can also before the MTC, etc.
party may incur due to the issuance of the PromRev.
Grounds for the Application for Appointment of Receiver
Here, even if there is still a pending labor case for illegal Sec1 Rule 59
dismissal it is proper to release the cash and surety bond a. When it appears from the verified application, and such other
posted by Bristo-Mayor since the principal action of proof as the court may require, that the party applying for the
injunction was already denied by the court. Hence, the appointment of a receiver has an interest in the property or
provisional remedy of prelim injunction automatically fund which is the subject of the action or proceeding, and that
dies vis-à-vis there’s no more reason to retain the cash such property or fund is in danger of being lost, removed, or
and surety bond posted by Bristo Mayer. materially injured unless a receiver be appointed to
administer and preserve it;
Jenosa v. Deloriarte b. When it appears in an action by the mortgagee for the
Doctrine: You must come to court always with clean foreclosure of a mortgage that the property is in danger of
hands including in the application for writ of PI. being wasted or dissipated or materially injured, and that its
value is probably insufficient to discharge the mortgage debt,
Facts: or that the parties have so stipulated in the contract of
HS students who are members of frat were expelled. mortgage;
Parents and the school agreed that instead of expulsion c. After judgment, to preserve the property during the
the students shall leave the school pendency of an appeal, or to dispose of it according to the
Later on Jenosa questioned the agreement assailing judgment, or to aid execution when the execution has been
violation of rights and praying for mandatory injunction returned unsatisfied or the judgment obligor refuses to apply
to admit the students his property in satisfaction of the judgment, or otherwise
Ruling: Aside from academic freedom and estoppel, you carry the judgment into effect;
must come to court with clean hands. Since parents d. Whenever in other cases it appears that the appointment of
entered into a compromise writ of prelim injunction is a receiver is the most convenient and feasible means
not applicable. Look Par D of Sec 1

3. Irreperable injury - The violation or threatened violation Purpose:

will result in irreparable damage and injuries. Take note of 3 words (PAD)
1. PRESERVATION,
2. ADMINISTRATION – because the prop is mismanaged and
NOTE:
it might get lost, materially injured hence you need to
1. Preliminary injunction is preparatory to injunction.
preserve or administer it
2. TRO is preparatory to preliminary injunction. And within that
3. DISPOSITION -
TRO is the 72 hour period of the TRO.
If Receivership is called for: ALWAYS REMEMDER PAD.
Preliminary injunction has no time frame. After trial that can
become permanent. But remember that a preliminary injunction
Who may be appointed?
is a provisional remedy attached to injunction. So when a
Not necessarily the applicant. It is not a guarantee that simply
preliminary injunction has become permanent, it means that you
because you applied for the appointment you will be
already won the case of injunction. But not the TRO, because the
appointed. It is discretionary on the part of the court.
TRO is preparatory to preliminary injunction. That is why there is
A receiver is not necessarily an individual person, it may also
a time frame in the TRO which is 20 days in cases of the RTC and
be a corporation.
MTC and 60 days of CA.
It is not only in replevin that the bond is called for twice, it is also
RECEIVERSHIP (Rule 59) applicable in receivership!

Principal action – Receivership 2 Types of bond

PromRev – Appointment of the Receiver 1. Applicant for the appointment of the receiver
By mere application damage may be incurred already.
When to file:
commencement of action even after the execution of Say: A depositor may apply for the appointment for the
judgment receiver of the bank (BDO). The mere fact you apply for
Why this long? the appointment, before the receivership is issued you
Because the property subject of the action might be injured, must file a bond. Mere application somehow damage the
dissipated or lost. So that at the time you will deliver it the name of the bank.
property is remains in-tact.
It has the longest time of all the types of promrev. 2. Appointment of the receiver
Must be verified petition (under oath) If the applicant is the same person the court may
dispense posting of new bond.
Jurisdicition: Vs.
GR: RTC
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 If the appointed receiver is not the same person as the
applicant, posting of bond is mandatory! - Only allowed before answer. (the shortest time of all
Koruga v. Arsenas Case.
Doctrine: Jurisdiction over the application of receivership for the
financial institution is the Monetary Board of the BSP not the
regular courts pursuant to New Central Bank Act. For other
entities, you may go to the regular courts.
Larrobis Jr. v. Phill Veterans Bank
Doctrine: Prescriptive period is not tolled during the receivership.
Receiver has the duty to collect debts while in receivership. If he
stop collecting debts during that period how can the bank be
rehabilitated. When the bank is placed under receivership, the
bank cannot transact banking business like accepting deposits,
etc. but the collecting of debts is not prohibited. This is provided
under Sec 6 of Rule 59. Hence, failure to file action within the 10
yr period the cause of action already prescribed.
Spouses Larrobis secured a loan from PVB. During the pendency
of the loan, the bank was placed under receivership. When the
bank was rehabilitated, the management found out that the
Larrobis has not paid the loan resulting to the foreclosure of the
REM.
Larrobis invoked prescription since the bank filed a case after
more than 10 years. The bank assailed that the prescriptive period
was tolled during the period of receivership.
Chaves v. CA
Doctrine: The appointment of receivership is not available for a
simple collection suit. If the property is not lost, dissipated or
injured there is no ground for the appointment of the receiver.
TERMINATION OF RECEIVER
When there is no more reason for its existence it has to be judicially or extra-judicially foreclose the prop for failure to pay for
terminated.
Therefore if the properties subject of receivership is no longer The mortgagee can ask for the issuance for the writ of replevin.
in danger of being wasted, lost, damage, injured or value When the writ was issued you can immediately recover the car.
dissipated then receivership will terminate.
Replevin (Rule 60)
– IMMEDIATE possession of the personal prop.
Principal Action – Recovery of possession of personal property
promrev)
The issue is that you are entitled for the possession of the car
hence it is only before answer.
Note: Once the answer is submitted, the issues are joined.
Hence, there is controversy who is really the owner and the
court will have to hear both sides and the writ of replevin is
n/a. It is unfair for the court to issue replevin upon answer
since there is already justiciable issue.
- Opposite of redemption since the latter is only real prop.
- Even if you are the owner you can apply for replevin
POSSESSION – holding of a thing and enjoyment of the right
4 REQUISITES OF REPLEVIN (OWAM) – Sec 2
1. That the applicant is the owner of the property claimed,
particularly describing it, or is entitled to the possession
thereof;
2. That the property is wrongfully detained by the adverse party,
alleging the cause of detention thereof according to the best
of his knowledge, information, and belief;
3. That the property has not been distrained or taken for a tax
assessment or a fine pursuant to law, or seized under a writ
of execution or preliminary attachment, or otherwise placed
under custodia legis, or if so seized, that it is exempt from
such seizure or custody; and
4. That actual market value of the property is stated in the
affidavit.
ONLY PERSONAL PROPERTY
Say: You a buy a car in installment. The buyer is required to sign a
chattel mortgage in favour of the seller stating “the right to
at least 3 months”.
Upon issuance of the writ, the sheriff may recover the car
anywhere it may be found. NO JURISDICTIONAL LIMITATION. Even
if the writ was issued in Manila and the car is in Mindanao the
sheriff can still recover the car. Due to its nature the personal
property can easily be transported.

When to file – at the commencement or before the answer Say:

Why before answer? A sold a lot to B, then B caused the titling of the property
When an answer is filed issues are joined and because issues fraudulently in his favor can A ask for recovery of the property
are joined, the court already knows whether the applicant is being entitled to the recovery of the property?
entitled to the ownership or possession. So hindi na igagrant No, because replevin only applies to personal property.
ng court, kaya it must be before the answer because it is an
immediate remedy. REQUISITES:
1. Bond – twice the value of the property.
WRIT OF REPLEVIN UNLIKE PI IS VALID ANYWHERE IN PH!!! Say: The car is P1million. If you seek to recover the car you must
obtain a bond of P2million.
Jurisdiction: When you speak of the bond, it is not cash deposit but merely a
MTC or RTC depending upon the value of the property because surety bond. You are only paying a premium not the entire value
technically replevin is only a provisional remedy. of the prop which is between 3-15%. Hence, if the car is P1 million
the premium is only 200K if the premium is 10%. Hence, you can
Note: only receivership may only be a principal action but replevin recover the car by merely paying 200K (bond twice the value) and
will always be a provisional remedy. not paying the cold cash P2M.
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Why 2x
First amount – for the value of the property Smart Communication v. Astorga (POTENTIAL BAR)
2nd amount – for the damages Doctrine: ER-EE relationship can be converted into cr-dr
relationship upon dismissal of the employee as far as the writ of
Orosa Doctrine: (Sec 9 of Rule 60) replevin is concern.
You cannot recover the car and the value of the car otherwise it is
unjust enrichment. Facts:
Facts: Astorga failed failed in the re-evaluation performance. She was
Orosa bought a car, after 6 months a writ of replevin was filed transferred to another department. She refused the lateral
against him. Orosa contested and sued the applicant for recovery transfer resulting in dismissal due to insubordination.
and damages. Illegal dismissal case was filed by the NLRC. SMART demanded for
The lower court ordered the return of the car and its value the return of the car under the car plan program. Astorga refuses
Ruling: It is in alternative. You either get the value of the car or the to return the car and assailed that she will continue paying the car
car itself. Note that judgment must be in the alternative. on her own pocket but was denied by SMART since the car was
only given to her due to employment.
2. Sheriff to keep the personal property for at least 5 days Action for recovery of possession with prayer for writ of replevin
otherwise he is administratively liable. was filed in RTC of Makati. Astorga moved to dismiss the case for
- 5 day period is mandatory, even if you put up a redelivery lack of jurisdiction since there is a pending case before the NLRC
bond but beyond due to ER-EE relationship. RTC granted SMART but was reversed
the 5 day period it will not have the effect intended for. by the CA saying had it not been for the fact that Astorga was
employed the car cannot be granted be granted to her. Hence RTC
Purpose of the 5-day period: has no jurisdiction for application of writ of replevin.
a. To determine the sufficiency of the bond otherwise it Ruling:
must be returned to the possessor. J. Nachura said that it is no longer an ER-EE relationship but
already a cr-dr relationship since she was already dismissed and
Note: If bond is insufficient the court must ask the there is no more ER –EE relationship.
applicant to satisfy the insufficiency of the bond, and only
when the order comes out and there is still no How to discharge the replevin
satisfaction of the insufficiency of the bond then the 1. Counter bond or redelivery
property shall be delivered to the person to whom it was 2. Section 13 : questioning the propriety of its issuance
taken by the sheriff.
Agner Case:
b. await the possibility of posting the counter-bond or Demand is not necessary prior to issuance of replevin. Due to the
redelivery bond. nature of the personal property the demand will only make the
replevin futile since the possessor of the property can hide the
Note: What is in the Rules of Court is mere bond. But the correct property after such demand.
term should be a counter bond or redelivery bond.
BPI CASE:
Hao v. Andres (importance of 5-day period) It does not follow that once writ of replevin was issued you already
The sheriff immediately deliver 6 cars to the applicant and due to lose your right to collect sum of money. Writ of replevin gives you
negligence lost the 3 cars in his custody. an alternative: whether to execute the writ of replevin or file
Facts: another action for the collection of sum of money. Filing another
The writ of replevin for 20 cars. Sheriff recovered only 9. Within action is not multiplicity of suit since ROC provides such
the 5 day period the 3 cars lost when certain Nonoy entered the alternative.
property and made a key duplicate.
Ruling: Sheriff was suspended due to gross negligence. SUPPORT PENDETE LITE (Rule 61)

3. Third party claim (Section 7) Principal Action - Support

If there is a third party claim then the sheriff shall deliver the
property to the third party claim. Jurisdiction –
GR: RTC since it is incapable of pecuniary estimation.
Remedy of the applicant: XPN: Crim cases – civil action is deemed instituted in crim case in
Posting another bond equivalent the value of the property. order to avoid multiplicity of suit.
Hence, the applicant shall deliver 3x the value of the property. XPN to XPN: Reservation, prior institution

Navarro v. Escubido Venue: since it is a personal action: where the plaintiff resides or
Doctrine: There is no necessity for the demand to recover where the defendant resides or wherever he may be found at the
possession of the car. It is contradictory to the very nature of the option of the plaintiff
writ of replevin. If you required demand then the car will be
immediately lost.
Page 48 of 95
When to file - commencement of the action or at anytime prior to
final judgment Note: Judgment for Support (not the prom rev of support
pendente lite) never becomes final. It can be increased or reduced
Hearing: Mandatory like in Prelim Injunction by the Court. In amending a judgment for support there are

Action of the court upon filing of the SPL Two Criterias:

The court shall issue an order directing the respondent to file 1. Capacity of the person to give support
a comment within 5 days (not answer). And with or without 2. Necessity of the person to be supported.
comment, hearing must be held by the court. The hearing
here is for the provisional remedy. (parang injunction, it People v. Manahan
cannot be granted without a hearing. In preliminary Doctrine: Although support may be imposed against a married
attachment pwede, kasi it can be granted ex parte but it man, the compulsory recognition of a child cannot be made
cannot be implemented without prior or comtemporaneous against him since it is policy of the state to protect sanctity of
service of summons). If he failed to appear, court grant an marriage.
order of support pendent lite, here it is only provisional
Manahan was charged for rape and it produced a child resulting
- Of all provisional remedies – SPL HAS THE UNIQUE for support and support pindente lite. Judgment was rendered in
- favour of a woman.
CHARACTERISTICS not present to other Prom Rev SC Ruled: There is a part error in the decision since the lower court
1. No Bond – only verified complaint judgment requires recognition of the child.
2. Interlocutory order when granted by the court – only SC said that the married man cannot be forced to recognized the
instance that an interlocutory order is subject to child.
execution.
GR: Interlocutory order cannot be implemented since it De Asis v. CA
is not yet final Doctrine: Res judicata is not applicable in action for support.
XPN: SPL when granted is subject to execution Furthermore, under the Civil Code waiver of future support is not
3. JUDGEMENT OR ORDER IN SPL or even judgment for allowed.
support never becomes final hence no entry of judgment.
RES JUDICATA – never applies in judgement for support. Action for support with support pendente lite was filed by the
4. RTC has jurisdiction since incapable of pecuniary woman against De Asis. Through intimidation of De Asis the
estimation. woman moved for the dismissal of the case. After several years
5. No damages in SPL but you may ask for restitution or SC: Res Judicata is not applicable for action for support.
reimbursement.
Restituion = must be in the same action
Vs. Lim v. Lim
Reimbursement –c an be in the same or separate action Doctrine: Support is not only the liability of the parents of the
child. If the immediate parent has no capacity to provide support
- N0 case yet that a husband filed for support. It is always a to his child, the court may order the ascendants to provide
woman or child. support depending on their capacity.

Spouses Lim stayed in the house of the husband. The parents of

Say: A prostitute, Aya, working in a night club. Due to familiarity
the husband were millionaires. Lim Jr. was employed in the
with the taxi driver, Aya got pregnant. Aya filed action for support
company of Sr with a salary of P6k but all household expenses
with prayer for support pendente lite before the RTC.
including the expenses of 3 grand children are shouldered by the
ROC: Within the period of 5 days to comment.
parents.
Note: Before answer there must be comment or opposition to the
The wife found the Lim Jr. has an affair with the midwife who’s
application for pindente lite. Failure to do so, the court will render
taking care of the mother of the husband. Wife left the house
a judgement on the application for support pendente lite. This
together with their 3 children.
judgement is not for principal action. Say: The RTC, pursuant to
Wife then filed a case for action for support with prayer for
the application of AYA, granted support pendente lite for the child
support against the husband and the parents in law for the benefit
for P5K monthly.
of the children and herself.
Afterwards, judgement for the principal action was rendered
Issue: Are grandparents liable to give support to grandchildren?
dismissing the case since the driver is not the father of Aya’s child.
Ruling: Yes, provided that you will be able to determine that the
What will happen then?
father cannot give sufficient support while the grandparents can
Restitution shall be made not reimbursement.
give support.
Who will restitute?
SC directed that the P6k salary of the hushand and the balance
Aya. She will return all the payment made by the driver plus
shall be shouldered by the grandparents. However, only the
interest.
grandchildren are entitled for the support not including the wife.
What about the reimbursement?
The true father shall reimburse Aya or the giver may directly ask
for reimbursement from the real father. Vs.
IS The action for reimbursement with the same action? Heirs of Ruiz v. Ruiz
No. Issue on jurisdiction.
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Note: Grandchildren are not entitled for support by the estate. IT XPN: Performance of obli since incapable of pecuniary estimation.
is only the widow and the children. In Lim v. Lim the action is
regular support unlike in Heirs of Ruiz. Purpose of Judgement:
The judgment shall be a declaration as to who is entitled or who is
Lim Lua v. Lim the legitimate or entitled to the real or personal property or of the
Doctrine: Support is not only for sustenance of the receipient such performance of the obligation.
as food but also includes household expenses, medical needs, etc.
It is more than the capacity rather than the need in considering Docket Fees:
the amount of support. Still required. Interpleader cannot be dismissed merely on the
non-payment of docket fees. But even no payment of docket fee
Here, the wife is asking for support initially at P500k a month as it is still allowed but the unpaid docket fee shall constitute as a lien
support pendente lite. The court reduced it to P250K a month. The in the judgment.
wife justified it is below her needs since she is undergoing
medication and going therapy. Hence, aside from P250K Say: A found a wallet and 3 are the claimants. What to do?
additional support was granted by the Court. File an action for interpleader for the 3 claimants to interplead
between and among them.
Gutardo v. Buling: A classic case of the interpleader.
Support follows filiation. Where to file. MTC because of the value wallet and what’s
Del Soccorro case: Bar Matter there.

9 SPECIAL CIVIL ACTIONS ( I-DR-C-QEF-PU) Say: A bank account was being claimed by three persons.
A as the widow
B. claiming that the account was donated to him
Why SCA?
C – she is the paramour
Because the Rules specifically provided for that these rules shall
Where to file? MTC or RTC depending on the value of the account.
apply. In case of conflict with the regular rules of procedure, these
Rules shall apply. Regular procedures only supplement the SCA.
Court shall issue summonses for the defendants to file the answer
who has the better right for the action for interpleader for the
For example some special civil actions have no summons, the
judgment of interpleader.
court acquire jurisdiction over the respondent in a different
manner but in ordinary actions summons is mandatory. Like in
certiorari, there is no issuance of summons there, the court Q: After an action of interpleader is filed, what happens next?
acquire jurisdiction by the issuance of order to file a comment. A: The court shall order the respondents to file their answer.
After filing an answer and once the issues are joined then you go
to the regular rules of court which is you go to pretrial then trial.
INTERPLEADER (Rule 62)
Remedy for the judgment of Interpleader
Interpleader R19: Intervention
Appeal, MNT, etc.
SCA Ancillary Action
Plaintiff must have no int. in the Person must have int. in the
Ethernal Gardens v. IAC (BAR PROBLEM)
subject matter subject matter
Doctrine: Court may order that the subject matter be paid or
Sec1:
delivered to court. And the person who filed the interpleader
Whenever there are conflicting
having no interest over the subject matter should be ordered by
claims over one subject matter
the court to do so.
against a person who has no int
over the subject matter being
The development of Ethernal Gardens in Bulacan. There was a
claimed by several individuals, the
joint venture between Ethernal and Mission Realty Corp (MRC).
one who has no interest will have
The agreement was that 60% of the proceeds from sale shall go to
to file the interpleader for the
Ethernal and the 40% to MRC, the owner of the lot.
conflicting claimants to
Maysilo Estate then write Ethernal claiming that they are the
interplead. And ask the conflicting
owner of the land not MRC. Ethernal then filed action for
claimants to interplead between
interpleader. In the course of the proceedings, MRC assailed that
and among then.
why the proceeds already amounting to P20m not deposited to
At least 2 defendants with There can be 1 defendant.
escrow account but to the account of Ethernal, the latter getting
conflicting claims
the interest from the account.
There is no action yet There is already a pending
action
SC: The P20m should be deposited with the court. Ethernal has no
interest in the subject matter. Hence, Ethernal has no interest
Subject matter: Real or personal prop or performance of the over the subject matter.
obligation

Jurisdiction: Wack-wack Case

GR: Value of the prop over which persons have conflicting claims
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Doctrine: Interpleader is a compulsory counterclaim. A 2 parts
compulsory counterclaim when not raised is deemed waived (Sec 1. Par 1 – Declaratory relief proper - RTC
2 Rule 9). 2. Par 2 – Similar remedies – MTC or RTC depending on the
XPN: Sec 2 of Rule 11 – in case of inadvertent oversight, excusable assessed value.
negligence = you can still amend the complaint -Refers to 3 kinds of actions (1) quieting title (2) reformation of
instrument; 3. Consolidation of title
When Tan filed a case against Wakwak knowing already that there
is another claimant, it could have and it should have filed a Jurisdiction: RTC – incapable of pecuniary estimation
compulsory counterclaim of interpleader. For not doing so, it is
considered that it had waived its right to any action against the Venue
defendant. If personal action, where the plaintiffs or respondents resides at
the option of the plaintiff.
Golf certificates were being caused to be registered in the name
of Tan and Won. Tan assailed that the share shall be registered in Subject Matter
his name pursuant to a deed of assignment by the British Any contract, will, deed, or other instruments or whose rights are
Company. Won assailed to be registered in his name due to affected by a statute, executive order or regulation, ordinance or
judgement by the Court. Wack-wack filed action for interpleader. any other governmental regulation.

SC: Action for interpleader was dismissed since there is already a

judgement which Wack-wack is also a party defendant and the Example a regulation of a school was issued stating that by the
shares was already awarded to one of the claimants. school year 2018-2019 starting June tuition fees shall be raised by
120%. There was already a circular to that effect. Declaratory
Q: Can there be a compulsory intervention? relief was filed, pending action 2018 came. The increase was
A: Yes it can happen. already collected from the students so you convert your action for
declaratory relief to what kind of action?
Bank Of Communication (Bar Matter: 2015 Decision) A: Convert is to collection of sum of money.
If interpleader is a complusary counter claim, can it be a
compulary cross claim
SC: Yes 2013 Doctrine: Malana v. Tappa
- It did not overturn the doctrine in Sabitsana v. Muertegui since
BAR MATTER the latters doctrine is merely obiter, hence, follow the Malana
Can an interpleader can be also be a compulsory cross claim is he doctrine (per Atty. Brondial).
can be a compulsory counterclaim. YES.
Second paragraph of Sec 1 Rule 63 shall be read in conjunction
Pasricha v. Don Realty Case with Judiciary Act.
Contract over apartment units. Pasricha, lessee, stop paying Here, the case was filed before the RTC even if the value of the
rentals since she does not know where to pay due to issue on the property is less than P20k.
st nd
owners. Hence a case was filed for unlawful detainer. Pasricha SC Ruled that the 1 paragraph is different with 2 paragraph, the
assailed that non-payment was due to confliction claims of latter is similar remedies and reading it in conjunction with
owners. Judiciary Act the quieting of tile, reformation of instrument or
SC There are remedies available but Patricia did not avail it. Hence, consolidation of title hence the determinant of jurisdiction is the
ejectment case is proper. assessed value of the property. Hence the case should be filed
with the MTC not RTC.
Alternative remedy for interpleader? SC ruled that the word “may”
JUDICIAL CONSIGNATION.
Vs
Sabitsana v. Muertegui (This is Obiter only!)
Can NLRC can take cognizance with the recovery of personal
All cases for declaratory relief shall be filed with the RTC. Take
property in connection with illegal dismissal case?
note the words “declaratory relief” not including other similar
Yes but there must be a pending illegal dismissal case otherwise it
remedies which is paragraph 2 since in quieting of title or
should be with the regular courts. (But pls take note of the SMART
reformation of instruments or consolidation of title the
Case stating that er-ee relationship is converted to cr-dr
jurisdiction of the court is based on the assessed value of the
relationship upon termination of employment.
property.
Take note that all cases involving er-ee relationship is cognizable
with the NLRC.
Before Breach
You have read the prayer assailing the Constitutionality of the law
Rule 63: Declaratory Relief and Similar Remedies how to distinguish it?
If the law is existing only it cannot be declaratory relief
Any person interested in any deed contract will or any instrument since you are merely invoking the Constitutionality and
or any person whose rights are affected by any statute, order or there is already breach.
ordinance before the breach shall file a declaratory relief.

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 Declaratory relief is only proper prior to the effectivity of In special civil actions in Rule 65 it says there that the tribunal,
the law body, board, officer, corporation are only nominal parties and
under regulations now of the SC, circulars, the tribunal,
Say: Ordinance was passed prohibiting smoking starting Jan 2018. corporations under or impleaded as respondent are not suppose
What to file? to appear and not suppose to file pleadings, let the private
Prior to Jan 2018 – DR respondentsdo that for them.
After effectivity – You only question the constitutionality of
ordinance not DR That is why in certiorari, you say petition for certiorari Juan De la
Cruz vs RTC branch 45 manila then name of respondent. The
Republic v. Orbecido principal respondent there is the tribunal court or bodies, but they
H filed a declaratory relief after his wife married to someone after become nominal in the process.
the decree of divorce was obtained by the latter.
Rule 45 Rule 65
Almaeda v. Bathala Marketing Mode of appeal SCA
Six requirements for DR Error of judgment Error of jurisdiction
1. There must be Justiciable controversy Grounds: Grounds
2. There must Adverse int. 1. Insufficiency of evidence for Certiorari and Prohibition:
3. Ripe for judicial determination 2. Judgment is not according 1. Lack of jurisdiction
4. No breach yet of the statute or of the written instrument to the facts 2. Excess of jurisdiction
5. The subject matter for DR is limited to deed contract will 3. Damages awarded is 3. Grave abuse of discretion
or other written instrument of ordinance law or order contrary to law amounting to lack or excess of
6. No appeal of other remedies available (i.e., MR or MNT) jurisdiction
For Mandamus
Rule 64: Relief fr Judgment, Final Orders and Reso of Commission 1. Neglect in the performance
on Audit (COA) and COMELEC of duty imposed by law
2. Exclusion from enjoyment
Subject Matter: Judgements, Final Orders or Resolutions of COA of an office
or COMELEC ONLY Correctible by appeal Correctible by certiorari

Jurisdiction: ONLY SC Jurisdiction

Remember: COA and COMELEC are two of the six tribunals where RTC, CA, SC, SB, CTA (City of Manila v. Judge Cuerdo)
you can only file a case directly with SC: But apply the 3 principles in remedial law
Other four are SB, CTA, CA, Shariah Appellate District Court 1. Hierarchy of courts
2. Transcendental importance
Any decision final order, resolution of COA and COMELEC, you can 3. SC is not trier of facts
assail that only under Rule 64 directly to SC
When does the court acquires jurisdiction over the person?
ONLY one remedy: Certiorari which is the certiorari under Rule 65 1. Plaintiff –upon filing of the petition
2. Defendant – upon receipt of the court order directing the
Certiorari (R. 64) Certiorari (R. 65) defendant to file comment within 10 days from receipt
Only applies to COA and No specific agency thereof.
COMELEC
SC Jurisdiction only Concurrent jurisdiction of 6 Issues under Rule 65
RTC, CA, SC, SB (in its 1. Who are the petitioners for CPM
appellate jurisdiction). 2. Who is the respondents for CPM
Timeframe: 30 days from 60 days from receipt of order 3. What are the grounds for the petition for CPM
receipt of the copy of order denying the appeal/MR/MNT 4. What functions did the respondents in the petition for CPM
Fresh period rule is not Neypes Doctine (fresh period 5. What is the common condition in the petition for CPM
applicable rule) or the Balance of the 6. What is the prayer in the petition for CPM
Same with Rule 62, 16 and 12 period of 5 days whichever is
Hence: If MR or MNT was higher is not applicable in Rule Certiorari Prohibition Mandamus
filed against the order of COA 65 since Rule 65 is only Sec 1 Sec 2 Sec 3
or Comelec you only have the applicable when there is no Petitioner Aggrieved party
balance of the period of 30 appeal nor no other plain, How?
days but not less than 5 days adequate and speedy remedy Due to the actuation of the respondents
(tie up will 22 on the Responde May either be May either be (TBO-PC)
computation of time). nts (TBO) 1. Tribunal
1. Tribunal – ex. 2. Board; or
Rule 65: Certiorari, Prohibition, Mandamus (100% BAR) MTC, RTC 3. Officer
2. Board; or 4. Person or
Distinguish Rule 65 with Rule 45 Ex.: ERC 5. Corp

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 3. Officer (ex. For person - this is not ordinary b. Capricious
CIR) individual person but a person c. Arbitrary –
exercising quasi-judicial function. d. Despotic –
Remember that quasi judicial
bodies as we have studied does Always go in twos:
not belong to the judiciary and a 1. whimsical and capricious –
lot of them falls under the no basis, unwarranted,
executive branch of baseless, the law does not
the government and that includes provide.
the NLRC. The NLRC is not a
judicial body but it exercises quasi 2. arbitrary and despotic - done
judicial functions. out of passion, out of
Grounds 1. Lack of jurisdiction 1. Neglect in the revenge, out of hatred or out
- Jurisdiction over the subject performance of love.
matter not over the person of duty Remember despotic pa rin
enjoined by yan kahit out of love.
Say: MTC rendered a judgment law; or Relationships, maraming
on an issue which the subject is 2. Excludes jurisprudence dyan, kaya
not capable of pecuniary someone from lawyers always file motion
estimation. This is lack of the enjoyment for inhibition.
jurisdiction since it is under RTC. of office of Ex. Judgement more than
franchise what the plaintiff prayed for.
2. Excess of jurisdiction Functions Discretionary Both Ministerial
Overstepping the authority – You can join - When one 1. Ministerial; function
going beyond your authority petition for has given an or - No option
mandamus and option 2. Discretiona
Say: quo-warranto (ex. ry
1. A judge handling the Application of
prosecution of seduction and Say: Mayor Indeterminate
you imposed a penalty of Estrada removed sentence Law)
reclusion perpetua even if the city engr and Discretionary – different food
you MTC judge who can his place Vs.
imposed max penalty of 6 appointed his Ministerial – only one food
yrs. Here you are son. Cannot be brought against legislative or executive
overstepping your authority. Mandamus for function
Penalty of prision Erap Applicable for Judicial or Quasi judicial functions only
mayor is under the RTC Quo-warranto for – ex. Creation of executive branch like HLURB, DARAB
hence if imposed by the son. can be subjected to certiorari in the exercise of quasi-
the MTC it is beyond its judicial function.
jurisdiction. Conditions No appeal or any other adequate, speedy remedy in
the ordinary courts of law
2. What if the RTC judge Or in simple terms
imposed penalty of < 6 years, No appeal, No MR, No MNT = hence neypes
is it in excess of jurisdiction? doctrine (fresh period rule) or the balance of the
No. Under the period or 5 days whichever is higher is not
Indeterminate applicable since CPM is only proper if no
Sentence Law, the RTC appeal/MR/MNT
judge may imposed
penalty lower than 6 - Certiorari and appeal are mutually exclusive
yrs. - EXPN: directed to different orders of the
3. Grave abuse of discretion court
amounting to lack of Prayer Nullify the final Cease and To do or perform
jurisdiction judgement, or desist from (take note
- The most common ground final orders, or doing mandamus is
used by lawyers (this catch all resolutions something merely
provision) ministerial
- Amounts to gross violation of function) plus
the rules damages, if any
- If you look at jurisprudence -Hipus Sr. V. Bay
there is only one description Damages No claim for damagers Damages is
using four adjectives: allowed.
a. Whimsical
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 such, the issuance of writ is purely ministerial already leaving the
TUAZON v. Registrar of Deeds of Caloocan court no choice but to issue
Doctrine: Certiorari will only lie against tribunal exercising
judicial/quasi-judicial function.
UP BOARD OF REGENTS v. Ligo-Teylan
Mr. Tuazon, a retired public school teacher, used his retirement Doctrine: Board was considered as a body exercising discretionary
pay to buy a lot in Caloocan. However, through PD Marcos function, in effect quasi judicial. Even in an administrative bodies,
annulled the title of the buyers including that of Tuazon and was a school board, when it rules that a student is not entitled to be
subsequently distributed by Marcos to his Presidential Security enrolled in said school due to some grounds.
Guard.
After EDSA, Tuazon filed certiorari to nullify the PD issued by Facts: UP student who applied for scholar ng bayan but in his 4th
Marcos. OSG assailed that Marcos is an executive officer and does year it was discovered that there was misrepresentation on the
not perform judicial function hence certiorari is not available. part of Nadal. UP Committee recommended for his expulsion in
SC: Certirorari is valid. He is a usurper of judicial function hence UP (he cannot enter in any school). MR was filed but was denied.
the more certiorari has a valid ground. Hence, he appealed to UP Board of Regents and honourable
dismissal was only released. But Nadal went to court for certiorari,
Remington Doctrine prohibition and mandamus.
Where one party these two remedies (certiorari and appeal) are This landed to Judge Tilan and ruled in favour of Nadal. UP was
allowed since two remedies are directed to different orders of the directed to accept Nadal for enrolment.
court SC: CPM will not apply. In mandamus, SC reiterated the case of
Arellano v. Cui is academic freedom. The school has the right
A filed a case against B and C. B and C filed a motion to dismiss but whom to accept and whom not to accept. However, mandamus is
was denied. Note M2D is an interlocutory order. B then filed not proper since the school has discretion in the exercise of
certiorari against interlocutory order. When a judgment was academic freedom.
rendered while the certiorari is still pending, C then filed an
appeal. Sections 4 to 9 of Rule 65 – common provisions applicable to CPM
As to C who filed an appeal for the judgment – this is valid
As to B – he filed petition for certiorari is still valid No. of copies
not anymore 18 but five copies with only two copies with
Say: A files a case against B and M2D was filed. When that is complete anexes for SC pursuant to efficient use of paper
granted, the order is final. Hence, your remedy is appeal. But if it rule
was denied, the order is interlocutory order since there is For CA – instead of 7 it is now 3 copies with only one copy
something to do. The remedy is certiorari. with complete annexes
For Lower courts – only one copy
Say. Collection suit for P250k filed with the RTC but a decision was All single space
rendered. Certiorari is not available since appeal or other Font 12
remedies are available.
REMEDY AGAINST ORDER OF JUDGMENT OF CPM
Hipus Sr. v. Bay 1. Rule 45 to SC; or
Doctrine: Mandamus will not lie for discretionary function of the 2. Rule 65 also (CPM) to a higher court -remember that
judge. certiorari is a concurrent jurisdiction
There is no prohibition that a certiorari can be
Upon the filing of information in court, and upon motion for certioraried
reinvestigation which was granted by Judge Bay there was a
finding of no probable cause. Resulting in the petition to withdraw Note: The court is a nominal party. It is not really the party in
the information. Judge Bay denied the withdrawal. interest. While the court is the principal respondent, it is not
SC: Judge Bay is correct it is discretion of the judge, hence, cannot enough to only file the cae against the court but you need to
be subjected to mandamus since the latter is only ministerial include also the private respondent.
function.
Say A v. B. Judgement was rendered in favour of A. B filed rule 65
Atienza Case: due to grave abuse of discretion. Who is the respondent.
Depot in STa Mesa removing the depot mandamus was filed. The Not only MTC but also the party in interest which in this case is B.
petition is proper since it is only ministerial for it is merely in That’s why the judge is only a nominal party and prohibited to
compliance with the ordinance which was upheld by the court as participate. The filing of memorandum, etc is to be directed
valid. Refusal of Atienza to implement it is ministerial function. It against the adverse party not the judge.
is neglect in the performance of once duty enjoined by law.
Note: CPM is not a matter of right = SC can dismiss it in a minute
resolution.
Say: Writ of Execution – a ministerial function and mandamus is
allowed.
Then why there is a motion for writ of execution – it is only to Rule 66: Quo-warranto
determine if the matter is really executory. After determination of Literal meaning – “by what authority”
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Note: There is only usurpation of public office and not of private When to file – within one year from accrual of action.
office. How about damages – one year from entry of judgment.

Nature: assailing the authority or by what authority are you Mendoza Case
occupying that position which is limited to APPOINTIVE PUBLIC Doctrine: A petition for Quo warranto is against a public. It is
OFFICES (appointive only) directed to the person occupying the public office and not to the
office per se. Also plaintiff is not entitled to backwages in quo-
Calleja v. Panday warranto proceedings since wages in that office is legislated and
A corp have faction among the BOD and one faction ousted the it was given to his successor. Likewise, it cannot be imposed
other by force resulting to filing of quo-wararnto. against the successor who was not impleaded in the case.
SC: Not proper since quo-warranto is only for public office.
Mendoza is the Acting Director in BoC. When Ramos was elected
2 TYPES OF QUO-WARRANTO as President, he transferred Mendoza from Manila to CDO which
Omnibus Election Code Rule 66 was objected by the latter. In place of Mendoza, Allas was
Issue on the qualification for Issue is the appointed on a temporary basis. Mendoza filed petition for quo-
election BUT this quo- qualification/capacity for warranto before the residence of alias. Mendoza won. But the
warranto is different from appointment. Issue is the return of Mendoza did not happened due to appeal. Meanwhile,
election protest. qualification/capacity for Allas was promoted as deputy commissioner. However, instead of
appointment. reinstating Mendoza a new person (olores) was appointed.
Issue is the ineligibility of Issue is the Mendoza then filed for M2d of appeal since it is moot and
Public Officer and/or violation qualification/capacity for academic after Allas was promoted. Judgment in favour of
of OEC Rules appointment. Mendoza became final and executory.
Execution was not allowed by the court since he cannot execute
Rule 66 the judgement for the judgment was against Allas who was
Subject Matter: Public office, but not directed to public office promoted. He won but he cannot execute since Olores, the
itself but the person occupying it. Hence, the successor is not current occupant, is not a party to the case.. In Quo-warranto the
subject to quo-warranto if it was filed before succession tool respondent is the person not the office per-se.
place.
Rule 67: EXPROPRIATION
Who is the proper plaintiff in Rule 66–
GR: The government since it is an award of the Govt to an We premise our discussion in the Constitutional provision, in Bill
individual – no one has the right to public office or Rights there is one provision regarding consti
“No property shall be taken for public use without just
Who can file – compensation”
GR: OSG which can be handled by the DOJ as authorized by the - Without this substantial conti you cannot exercise
OSG however through circulars this can be handled by the DOJ expropriation.
(Public Prosec)
EXPN: Private individual can also file petition for quo-warranto Note: Before the Rules of Court named this rule as Eminent
provided he has a claim to the public office. Domain.
If he has no claim- you cannot file but he can initiate deemed a
relator (the sipsip to OSG for the filing of the quo-warranto) Eminent Domain – inherent power of the state.
Vs.
Who is the Relator Taxation – the life blood of the state.
a private person who has no claim in the public office but the one
who initiates the quo-warranto by informing the OSG/DOJ that a Eminent Domain – based on regalia doctrine (all lands belong to
person is usurping a public office and on that basis OSG/DOJ files the state and he who claims it has the burden of proof).
petition for quo warranto.
Note: In the study of expropriation, you need to go back in
Jurisdiction: substantive law – Land Registration Act.
Same with CMP, Habeas Corputs – concurrent, SC, CA, RTC, SB but What is property discussed here?
not CAT. Not only the real property but also personal property.
Hence, ill-gotten wealth can be subject to appropriation.
Venue: GR: Where the rule provides The word property in the consti is not limited to real
GR: Under Rule 66- must be the resident of the respondent property but can also extends personal property which is
XPN: Always in Manila if OSG is the petitioner. also applicable in Rule 67.
Although in Rule 67, most of the topics here are real
When a claimant to the public office files the case – where the property since personal property are being covered by
respondent resides different rules and laws.
Vs. Say: AML Law it is taking also but it is not under Rule 67.
If OSG filed – venue is always manila

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What is the concept of taking? Even if these urinals covers only men it redounded for the benefit
Not limited to actual seizure or custody of property. of general welfare. It is only men that can urinate anywhere and
There is taking when there is diminution of usefulness. not the women.
When you diminish the utilization or usefulness of the Hence, when we speak of public use it does not necessarily
property of an individual there is taking, thus, person is benefits the entire community as long as it redounds for the
entitled to compensation.
Formula for Just compensation (JC)
National Power Corp. vs. CA (BAR MATTER) JC = FMV + consequential damages – consequential benefits which
Given in the Bar in relation to Section 1 of Rule 17 should not be more than the consequential damages.
Doctrine: There is already taking of the property upon filing of the
applicant of expropriation case even if there is no actual taking yet
of the property. Hence, the aggrieved party is entitled for FMV –
compensation even if the expropriation case was already as provided by PD of Marcos is declared unconstitutional.
dismissed due to M2D filed by the petitioner assailing that there Now the FMV is the price that the buyer is willing to buy
was a mere error of judgment on the part of the petitioner and without being forced to or the seller is willing to sell
the lot previously expropriated is sufficient already. without being forced to.
Can you apply these in expropriation case?
Here, NPC wanted to set-up geothermal plant in Albay in the slope In reality it is not since the owner actually suffers loss.
of Mayon Volcano. The property is owned by Pobre Family. This
was expropriated by the NPC. While NPC is constructing the Note: Upon filing of the complaint they can immediate takeover
geothermal plant, NPC said that they expropriate insufficient land, even without payment of the property. The petitioner can just pay
hence, NPC filed another expropriation case which also belongs to deposit for purposes of taking immediate of the property is 15%
the Pobres. However, before Pobres filed an answer in the of the zonal value of the property not the market value of the
complaint, NPC filed notice of dismissal since according to NPC property. Zonal valuation is the value assessment of the BIR.
they already expropriated sufficient lands.
Pobre assailed that they are entitled compensation since the case Asias Emerging Dragon v. DOTC (BAR MATTER)
was already filed in court, hence, there is already taking. Doctrine: Before the government can take possession of the
property expropriated they must pay 100% of the zonal valuation.
Is the Pobres entitled to compensation in the second But take note that this rule is for INFRASTRUCTURE PROJECT OF
expropriation case? THE Government and not for the ordinary project of the
government like mere road widening. The example of
Ruling: Yes. Upon filing there was already taking even if the infrastructure project is the building of MRT.
property was not physically/actually taken.
Barangay San Roque v. Heirs of Pastor
Manila Internal Airport Case Expropriation case is not capable of pecuniary expropriation
Here, MIAA expanded its operation. MIAA expropriated several hence under the jurisdiction of RTC only.
properties there. However, the adjacent owner of the property
expropriated property also asked for compensation since the Who is the plaintiff?
utilization of the property was greatly diminish. The poultry Only the government. But the local government code granted that
operation of the said property dwindled resulting in the decline in power not only to local government and barangay but also to
income due to less egg production caused by loud noise of the GOCCs, etc.
airplane.
SC ruled: There was already taking even if there is no actual taking Can the barangay expropriate by merely passing a resolution (BAR
since there is a reduction of income on the part of the adjacent MATTER)?
property. Such resolution must also be approved by the municipal or city
Sangunian.
Note: The taking must only be for a definite purpose: for public
use. Remember the Chinese Cemetery case: if the property is Note for GOCCs? Not all can expropriate, it must be stated in the
already for public use it can never be subject for another taking. charter of the GOCC.
It is not necessary that entire community shall benefit. Even if it
caters only to certain members of the society as long as it is for Reclamation is not expropriation. Reclamation is only a mode of
the common good and for the general welfare then it is for public acquiring title over the property.
use.
1. The first thing that the court issues is the order of
Say: condemnation or what we call the order of expropriation.
In Manila, when MMDA Chairman Bayani Fernando constructed in This is a final order hence the remedy is appeal which is a
Mla the pink urinals. But this pink urinals cater only to men. Case notice of appeal.
was filed assailing violation of equal protection clause. However,
Bayani said that these urinals can be used by women also. 2. Determination of just compensation. To appoint 3
commissioners decided by the parties, plaintiff and the
defendant shall suggest the member of the commission and

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 the court shall appoint a common member. Take note that Most Bar questions is about extra-judicial foreclosure and not
the members of the commission may accept evidence, here under Rule 68.
testimony not for the purpose of judgment but only a report
which is not controlling and merely recommendatory. The applicability of Rule 68 is when there is a mortgage of real
property. Hence, it is always anchored on a loan. The bank uses
The determination of just compensation is ALWAYS A these real properties as security. This security is known as the
JUDICIAL FUNCTION AND NEVER AN EXECUTIVE NOR mortgage and the debtor enters the Real Estate Mortgage. Failure
LEGISLATIVE FUNCTION. That’s why the commissioner can to pay will result in foreclosure
only recommend which the court may take it or not or
recommit the recommendation for further studies. Who are parties?
1. Plaintiff –mortgagee/creditor
BAR 2009 2. Defendant – mortgagor/debtor
Can Congress pass a law expropriating 100 sqm of UST
property to be paid through exchange or barter with another Sec1 Rule 68 last sentence
one hectare property in Calamba as payment. Objective is to “You have to implede all defendants: the names and residences of
build statute of Mayor Lacson. all the person whose rights are are subordinate to that of the
Committee Answer: Yes as alternative answer holder of the mortgage.
Atty Brondial said No. The answer should be in remedial law
not in constitutional law since it is a rem bar. What do you mean by whose rights are subordinates?
They are junior encumbrances. Those they have a right
2015 BAR subsequent to the loan.
Larceny question in remedial law which is already outside
remedial law. These persons are only necessary party not indispensable party.
Unanimous approval that regardless of the answer it is a full
answer. Remember that the indispensable party are those if not impleaded
the judgment is null and void even if those who are impleaded
City of Manila v. Serrano v.
Seranno questioned the expropriation of the property claiming Necessary parties – there will no complete determination of the
that the property is very small hence cannot be expropriated. The case.
issue here is WON City of Manila correctly follow the process in
the expropriate case. Note: You can still use a property as security even if you are not
Ruling: No. Expropriation must always be the last resort. If there the owner of the real property.
are other properties which could be taken expropriation should The owner of the property is an indispensable property.
never be exercised. Vs.
The possessor of the property. He can be indispensable or a
Republic v. Andaya necessary party.
Doctrine: Even if the property has not been actually taken as long
as it cannot be used as it used to be, then there is already taking Say: A son borrowed the title of the property of Atty. Brondial and
and there must be payment of just compensation. used it as collateral. He disagreed but his wife approached him to
allow his son to use the land title as collateral.
2 parts in expropriation
1. WON the property is for public use What should be the judgement in action for foreclosre?
2. Payment of just compensation. Not a judgment to sell but a judgment to pay.
If the mortgagee worn, it is not a judgment to sell.
Orders in Expropriation
1. Order of expropriation – final order, hence, appealable. Timeframe within which payment is to be made
You cannot recover anymore the property. You must Not less than 90 days nor more than 120 days from entry of
appeal the order of expropriation for you to recover the judgment.
property. After the finality of judgment you cannot Take note of the liberality of the law in favour of the
recover anymore the property. mortgagor. It is from entry of judgment. The law provided the
2. Payment of just compensation. mortgagor to pay after foreclosure. This is what is known as
EQUITY OF REDEMPTION. – meaning to say the property
57:08 should not be sold yet the mortgagor has the period to pay.
Rule 68: FORECLOSURE OF REAL ESTATE MORTGATE (REM) Then why mortgagor cannot pay or did not exercise equity of
redemption – because of the high charges already. (that’s why
Reminder: Most of the cases that you read in foreclosure is RA banks are known to be a legalized robbers). That’s why
3135 not based on Rule 68 notwithstanding the leniency of the rule, mortgagors failed to
pay.
2 types of foreclosure
1. Judicial Foreclosure – by Rule 68 Vs.
2. Extrajudicial foreclosre - RA 3135 as amended

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 Right of Redemption – the one year period to redeem the
property counted from the date of registration of certificate of
sale. Who can redeem – judgment obligor or the successor in
interest or a redemptioner (one who has a lien over which the
property is sold).
If you appeal to CA, the 30 day period (the not less than 90 days
nor more than 120 days) does not begin to run. If you go to SC, the
30-day period does not also begin to run to. That’s why some
mortgagor go to SC.
Sec 2
When the mortgagor failed to pay the loan within the period – the
mortgagee by mere motion can go to court for the authority to sell Rule 69: Partition (SELDOM GIVEN IN THE BAR)
the property.
The buyer of the property is more often the bank. Two parts:
The foreclosure sale must be confirmed – there must be an ORDER
OF CONFIMATION, otherwise, the foreclosure will not take effect.
What is sought to be confirmed here?
THE SALE OF THE PROPERTY MUST BE CONFIRMED OTHERWISE
THE EQUITY OF REDEMPTION IS NOT CUT.
Vs.
Sec 1 of Rule 17
Order of Confirmation is required to effects the dismissal of the
case.
Deficiency Judgment
Don’t be misled by Section 6
This is not applicable in extra-judicial foreclosure.
This deficiency judgment is not brought about by
separate action. You do this by mere motion since it is a
continuation of the main action.
When it is done?
If the proceeds is less than the debt.
Once the deficiency judgment is granted by the Court, go
to Rule 39 = Execution of Judgment. (Sections 31, 32, 34).
What if the sale proceeds is more than the debt?
The mortgagee must return the excess to mortgagor. However, if
there are junior encumbrances (subsequent attaching creditors,
etc) the mortgagee must deliver it to junior encumbrances
2 Cases under Extra-judicial Foreclosure
(How do you apply for extra-judicial foreclosure-
Simply apply with the branch clerk of court.
Is there right of redemption and period to redeem?
A: It depends upon the contract. If there is nothing stated in the
contract it is one year period. EXPN: In case of bank, it is only
maximum of 3 months to redeem not one year.
Advantage of Extra-judicial foreclosure:
No need for notice.
LZK Holdings v. Planters Bank
Doctrine: There is no need for a demand before you can file a
foreclosure.
Golden Merchandising Corp.
Doctrine: In extra-judicial d
Extrajudicial foreclosure.
GR:Writ of possession – not a separate action it can be file by mere
motion without notice.
XPN: If it is in possession of the real property who is not the party
in the case.
Can there be a valid foreclosure of REM even if the REM is not
notarized?
Yes. Even if it is not notarized it is only binding between the
parties. Notarization can make only the documents public. Which
means notarized documents does not requirement
authentication.
(1) the determination of whether the property is suited
for public use
Order of expropriation or order of
condemnation
Appealable. If not appealed, order is final and
executory
No recovery of property once the order
becomes final and executory
(2) the payment of just compensation
Order separate and distinct from the order of
expropriation
Remedy for non-payment of just
compensation: appeal from the judgment
Cannot seek anymore for the recovery of
property
Foreclosure of real estate mortgage based on a deed of real
estate mortgage not notarized
• Notarization, under the rules of evidence only make the
document public, which means it does not require
authentication. So even if a document is not notarized,
it is binding, but it binds the parties thereto.
Rule 69 Partition
• Hypothetical case
H and W are husband and wife who have 5 children, A,
B, C, D, and E. H and W own a big parcel of land, 1,000
sqm. H and W both died, thus under the law, the
property then will then go to the children, in co-
ownership. Children are all of age. The siblings did not
enter into an extrajudicial settlement. A filed for
partition, joined by E, the other 3 siblings are the
unwilling plaintiffs, respondents.
How will this be partitioned?
The court will assign commissioners, for the accounting.
Should the parties not agree to a project of partition
(extrajudicial settlement of estate), the rule provides,
the next option of the commissioner is Assignment.
Assignment is to buy out. The commissioner will ask the
children who among them are willing to buy out the
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 property. If B buys out the property and takes the Grounds 1) Expiration of the (FISTS) Force,
property for himself and the other children agree, there contract; Intimidation,
would be no problem. If one opposes, under the rules, 2) Violation of any Strategy, Threat
no assignment or buy out is to take place. The last term or condition in or Stealth
option then would be Sale. the contract, and
3) Tolerance
• Balus vs Balus ( G.R. 168970, Jan. 15, 2010) Note: Rent Control
Facts: The father together with his wife, owned Law provide for
a piece of land. He then secured a loan from a grounds for ejectment
bank with his property. However, he forgot to proceedings
pay his loan and the bank foreclosed his Recovery Action accion interdictal (recovery of possession
property. It was the bank who was the buyer of de facto)
the property in the foreclosure sale and after it Requirement for there is a need of there is no need
bought the property, it was consolidated. The Action demand to pay and for demand
children of Balus entered into an extrajudicial vacate
settlement of the estate of their parents saying Prescriptive one (1) year from the none
that they are going to divide between and Period last demand
among themselves the properties. But the heirs Note: beyond the
know for a fact that the property was with the one-year period, valid
bank without fully knowing that it was already action would be
consolidated. Upon knowing of this, one of the accion publiciana
children bought back the property from the
bank, after which, he wanted the full • Exclusive and original jurisdiction of MTCs
ownership of the property. But there was an • Summary Procedure
extrajudicial settlement, so that during the no hearing
pendency of the mortgage, the property for there are prohibited pleadings
quite some time has already been in the period much shorter (10 days to file answer, 30
possession of one of the children. That child days to submit for decision, 30 days to render
was not the one who bought it back from the judgment)
bank. Hence, a case for partition was filed no trial but there is preliminary conference
based on the extrajudicial settlement of the Issue to be resolved: possession de facto, not
estate as evidence. possession de jure
Issue: W/N partition will apply, and w/n there When the issue of ownership is raised in the
is co-ownership. pleading, the court is not divested of its
Held: In a partition case, the first thing that jurisdiction and must resolve the issue of
must be determined is whether or not there is ownership only to resolve the issue of
co-ownership. The records of the case state possession. Resolution of the issue of
that there was already no more co-ownership ownership is not res judicata. Litis pendencia
from the time that the bank consolidated the therefore would not apply because the
title over the property. Co-ownership ceased resolution of issue of ownership is only to
by the time of consolidation. So that to go back resolve the issue of possession.
to that, pursuant to the extrajudicial Damages allowed in cases will only be unpaid
settlement of the estate will not turn it back to rentals and attorney’s fees
a co-ownership. Here, partition will not lie. The
case was dismissed and the file to proper • Injunctive reliefs for ejectment proceedings
action which is recovery of property or (1) Trial court
ejectment as the case may be. That is the first Section 15 – plaintiff can immediately ask for
part of partition. It has a second part like injunction
expropriation, which is accounting. Accounting
here means, the certain expenses for the (2) Appellate court
partition, the proceeds, if there are civil fruits, Section 20 – plaintiff can still ask for injunction
these must be properly distributed between while pending appeal by the defendant
and among the heirs.
• Appeal by the defendant
Rule 70 Forcible Entry and Unlawful Detainer Requirements for appeal: (1) notice of appeal,
(2) supersedeas bond and (3) regular monthly
Unlawful Detainer Forcible Entry deposit for the use and occupancy of the
Nature possession was lawful possession was premises
at the start and unlawful from the appeal will not stall the execution of judgment
became unlawful start in unlawful detainer unless that appeal is
later coupled by posting of supersedeas bond and

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 regular monthly deposit for the use and
occupancy of the premises.
MTC - file the notice of appeal and post the
supersedeas bond
- supersedeas bond refers to unpaid
rentals. If there are no unpaid rentals, not occur, there will be no settlement of estate. So it is mandated,
supersedeas bond is unnecessary
Appellate court (RTC) - deposit the monthly fee availed of, someone must have died. It is basic that the first
for the use of the premises on or before the
10th day of every succeeding month
How much should be posted? The amount
must be according to judgment
• Appellate court affirms judgment of lower court
There is already execution of judgment. There
is no longer appeal.
File for petition for review under Rule 42
To stall the execution of judgment, apply for
injunction
Rule 71 Contempt
• Two kinds as to nature: civil and criminal
• Direct contempt - there is misbehavior or disrespect to
the court, actually done in the court or so near the court
as to disturb the proceedings, or to vex the judge
• Indirect contempt – grounds as provided under Section
3 (Rule 74, Sec. 1)
• Only the SC can suspend lawyers (Yasay vs Recto (G.R.
129521, Sept. 7, 1999))
• The power of contempt must not be exercised in a
vindictive manner but always cautiously and in the
preservative way (Sison vs Caoibes (A.M. No. RTJ-03-
1771. May 27, 2004))
General characteristics of Special Proceeding.
Basis : Rule 1, Sec. 3.
3 kinds of action : civil action, criminal action and special
proceedings.
Special Proceedings - it is a remedy that seeks to establish a status,
a right or a particular fact.
Characteristics of a Special Proceeding:
1. There is only 1 party, the petitioner;
Exception - Writ of Amparo, Writ of Habeas Data, and
Writ of Kalikasan.
2. The court acquires jurisdiction over the case only after
publication : once a week for three consecutive weeks. It
must cover three weeks which is 21 days, the publication
is not for 21 days.
3. Special Proceedings are imprescriptible.
4. The issues in Special Proceedings are determined not by
the allegations in the pleading, but rather by law.
RULE 74, Summary Settlement of Estate.
*the word settlement of estate automatically connotes the
existence of an estate. It only comes to life when one is deprived
of life. So estate happens only when someone dies. If death does
not by just the rule, but by logic, that when settlement of estate is
jurisdictional requirement of estate is that someone must
establish the death of the decedent, either actual death or
presumptive death. You cannot continue with settlement of
estate if you cannot establish the death of the person whose
estate you are going to settle.*
Actual Death
Presumptive Death
Settlement of Estate consists of three things:
1. Inventory of the estate
2. Administration of the estate
3. Liquidation of the estate.
Two different modes of settlement of estate:
1. Judicial
a. Summary settlement of estate of small value
b. Judicial partition (Rule 69)
Steps in Judicial Partition – (i) file the project of
partition, (ii) A commissioner is appointed when
there is determination of co-ownership, and (iii) the
commissioner has the following options : project of
partition, buy-out, and/or sale
c. Escheat (Rule 91) – where there absolutely no
heir, and there is no will
The State settles the estate. As regards
jurisdiction, it must be filed where the properties are
found. If the properties are scattered, then the
properties shall be scattered where the properties
are located. The publication requirement shall be
once a week for six consecutive weeks in a
newspaper of general circulation. The property
belonging to the estate must be used for charitable
purposes and education purposes where they may
be found.
[Alvarico vs Sola, G.R. No. 138953, June 6, 2002]
The property given by the State can only be returned
to the State only through the action of the State and
not an individual.
d. Conventional form of the settlement of the
estate (Rule 75-90).
2 kinds : (i) testate; (ii) intestate
N.B. it is not only the RTC that can take cognizance
over the settlement of the estate, even the MTC can
take cognizance of the settlement of the estate
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 because the law, R.A. 7691, states that testate or The presumption here is it is a testate settlement since a will was
intestate, so the jurisdiction depends on the gross executed.
value of the estate (P300,000 outside MM/P400,000
in MM). Sec. 1 is fundamental, since no property shall pass unless the will
is allowed. Thus, a probate proceeding is mandatory. Any court
2. Extrajudicial that takes cognizance of this settlement of the estate is a court of
a. extra-judicial partition limited jurisdiction.
b. affidavit of self-adjudication.
c. Concept of limited jurisdiction – states that when the court is
Requirements : (1) someone dies, acting as a probate court, it cannot deal with other issues so far,
(2)the person who died left only one heir, but once the will is allowed or disallowed, it this does not mean
(3) he left no will, and (4) he left no debts, that the case will stop. It continues up to the end of settlement
or if there are debts, there are properties which is distribution of the estate.
already to answer such debt.
Production of the Will - Whoever is in possession of the will is
N.B. If for instance, you have duty-bound to surrender the will. If he does not surrender that will
illegitimate brothers or sisters, then the within a period of 30 days from the death of the decedent or
affidavit for self-adjudication cannot apply. knowledge of the death of the decedent, he can be sanctioned.

This affidavit is not a simple affidavit, Problem:

you have to apply with the office of the Mr. X resides in QC. He has 5 children. He executed a will in QC.
registry of deeds if there is real property After executing a will, he gave the will to his eldest son, Mr. A, as
involved. You must execute an application custodian of the will. Through the years, Mr. A was in custody of
stating your personal circumstances, how the will, but later on he was married and he resided in Cebu. While
you are the sole heir, the marriage contract in Cebu and as resident thereof, A’s father died in QC.
of your parents if any, your birth certificate, Immediately, Mr. A complied with Rule 75 and surrendered a copy
your muniments of titles, and if there are of the will with the RTC of Cebu. One or two months after, the wife
personal properties it should be stated also. and the other children of the decedent filed a petition for probate
After this, there must be publication and of the will, with the will annexed, in RTC of QC.
posting of such affidavit. This is
administrative, it does not need the Which is the court of proper venue, Cebu or QC?
participation of the court,
QC because it is where the decedent last resided. If you are going
RULE 73, Venue and Process to assail the issue of improper venue, where are you supposed to
file our opposition, in QC or in Cebu? - In Cebu, because QC is not
What is the venue of the action? The venue of the action, under the court of proper jurisdiction. Cebu is the court of proper
the rules, must be the last residence of the decedent. jurisdiction. (Cuenco vs Court of Appeals, G.R. No. L-24742
October 26, 1973)
Residence - the actual, personal, and physical abode.
N.B. By mere surrender of the copy of the will, the court can
Is residence the same as domicile? According to the SC, what is already set the case for hearing.
required in the settlement of estate for venue is the residence and
not the domicile. Domicile is the residence of someone with the Exclusionary Rule – the court that takes cognizance of a case takes
intent to remain there, so that for purposes of election, the it to the exclusion of all other courts.
requirement is not residence but domicile. But for purposes of
settlement of the estate, it is the residence. [San Luis vs San Luis, Question:
G.R. No. 133743, February 6, 2007]. 1. Regarding using tolerance, how to use it as a ground for filing
an ejectment case?
Quiazon died in Las Piñas. The wife in Las Pinas filed an action for The same, the subject is only a ground. Summary procedure; file
appointment as administrator of the estate. There was another the complaint and after filing the complaint, summons is served,
wife in Tarlac which assailed the petition on the ground that the and the answer must be filed in ten days. There is no distinction.
second wife is not the proper party in interest and the venue is How to allege tolerance?
wrong. In addition, the first wife claims that in the death -Settled is the rule that only ultimate facts, i.e. the defendant is in
certificate of Quiazon, he is a resident of Tarlac. The SC held that possession of a 20 sqm property thru tolerance of the plaintiff. No
Las Piñas was the proper venue, because that is the residence of need to explain what tolerance means; only the ultimate facts.
the decedent where he last resided. In addition, a death certificate 2. Statement of facts:
is not an evidence of residence, but a mere proof of death. A, B, and C are sisters. They were co-owners of certain hectares of
[Quiazon, et al vs De Belen G.R. No. 189121,July 31, 2013] land which they acquired from their deceased parent. A and B died
leaving the undivided properties in the hands of C who enjoyed
the fruits of the land alone without considering the children of her
RULE 75, Production of Will. Allowance of Will Necessary deceased sisters. One of the children asserted rights over the
properties but because of young age, C gave her nieces a few
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amount of money and made them sign a notarized document
which is a sort of waiver waiving the rights over the properties. Is
the document valid? If not, what would be the remedy of the
niece?
- The validity of the document (bilateral) depends on the validity
of the consent. In the example, there is a vice of consent. There is,
in other words, undue pressure and influence. So the document is
contestable. It is a matter of evidence. You have to show that
there was a vice of consent whether force, intimidation or even
undue pressure and influence, so much so in a will.
3. A, an incumbent elected barangay chairman, seeks for a higher
position and filed a certificate of candidacy for mayor and
participated in the last local election on May 9, 2016.
Unfortunately, A lost. Consequently, A reassumed his original
position that was already vacated by him. Besides, by fortune, he
was appointed as a member of the sangguniang panlalawigan
equal to the rank of regular members of the provincial board. Can
he be removed in the board invoking quo warranto proceeding
raising the ground of ineligibility?
- No, because the quo warranto here is under the omnibus
election code.
Rule 76- Allowance or Disallowance of Will
Who can file a petition for allowance/disallowance of a will?
(DELTA)
1. Devisee
2. Executor
3. Legatee named in the will
4. Testator
5. Any person interested in the estate
Don’t confuse this with Rule 78 (Letters Testamentary and Letters
of Administration). Rule 78 is different. Here, it is application for
administratorship. Under rule 76, it is petition for the allowance
of the will. Under Rule 78, letters testamentary or letters of
administration, who can file an application for appointment as
administrator of the estate.
Letters testamentary (incompetent to serve as executors or
administrators)
1. Not a Minor
2. Not a resident of the Philippines
3. In the opinion of the court unfit to execute the duties of the
trust by reason of drunkenness, improvidence, or want of
understanding or integrity, or by reason of conviction of an
offense involving moral turpitude
No witness Rule- the application for the allowance of a will, if it is
filed by the testator himself of his own holographic will, no witness
is necessary.
He will simply testify that he has entirely written it, he has signed
it, and he has dated it.
One-witness Rule- a notarial will which is uncontested. When you
seek the probate of a notarial will and there is absolutely no
contest, you need only one witness who will establish that this was
written.
Two-witness Rule- refers to a lost or destroyed will. When a will is
lost or destroyed, before you can have that probated you have to
establish the existence of the lost or destroyed will and you need
two witnesses for that.
Three-witness rule- refers to a contested holographic will. You
have to get atleast three witnesses to establish that is the will.
Four-witness rule- refers to notarial will that is contested. This is
the three instrumental witnesses and the notary public.
Rule 77- Allowance of Will Proved Outside of Philippines and
Administration of Estate Thereunder
When a will is executed abroad, can that be implemented here?
- No. That is in effect a foreign judgment. And because it is a
foreign judgment, you have to cause its approval here in the
Philippines irrespective whether a Filipino or not. As long as the
will was:
1. executed abroad
2. probated abroad
3. under the laws abroad
4. by a probate court
then it cannot be implemented here.
These are to be established in the enforcement of that will in the
Philippines.
You have to show that the testator:
1. Is domiciled abroad, not resident.
2. That he executed a will abroad
3. According to the laws of the country where he executed it
4. That it has been probated by a court of competent
jurisdiction
5. According to the laws where it was probated
Reprobate of a will- means that the will has been probated in
abroad. Considering that it is equivalent to a foreign judgment, it
has to be re – enforced. To enforce here you have to file reprobate
of that will.
Jurisdiction – RTC has general jurisdiction or because it is an action
not capable of pecuniary estimation.
Venue – where he has an estate. If he has estate all over the
Philippines then we shall apply the Exclusionary Rule.
E.g. If the deceased has estate in Parañaque, another in Manila,
others in Quezon City, you can choose anywhere for as long as it
is the RTC.
Reprobate Court once approved, there must be a judgment.
Certificate of Probate has to have finality. Copy furnish the
interested parties and after 15 days from receipt then a Certificate
of Finality will be given then execution.
If there are several properties in the Philippines, the court may still
appoint an executor or administrator of the estate. This is
different from ancillary administrator who was assigned to take
charge of the properties found in the Philippines. Ancillary
administrator is different from the initially appointed executor or
administrator abroad.
Letters Testamentary vs. Letters Administration
Letters Testamentary is the appointment of a executor. When
there is a will, there is an appointed executor. But it is necessary
that the person in the will will be approved by the court because
in order for the court to issue Letters Testamentary, in effect
appoint an executor, he must be duly qualified and what are the
basic qualifications, it would be based on the court.
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The Rule says that he must post a bond and accept the trust. If he The widow and children. Grandchildren are not entitled to the
accepts the trust as an appointed, then he would be appointed. fruits of the estate.
Otherwise, there will be Letters of Administration which is the
appointment of an administrator. Heirs of Hilario Ruiz vs. Edmond Ruiz (252 SCRA) Landmark Case

Qualifications - Administrator: Edmond Ruiz the son of the late admiral Ruiz, a sole heir but there
was an adopted daughter who has three children. In the course of
1. Not a minor; the proceeding, the lawyer of the children against the father.
2. Resident of the country; Edmond Ruiz is legally separated from the wife because he caught
3. Must be duly qualified; the wife in the act of adultery and so the wife was charged and
4. Not a drunkard (includes drug addict); convicted. The children lived with the grandparents. When Hilario
5. Not convicted of offense involving moral turpitude (e.g. Ruiz died, Edmond is the custodian of the will which he did not
urinating in public) – any act degrading is an act involving surrender. The adopted daughter filed a petition for a probate of
moral turpitude. the will with the will annexed. In the course of the proceedings, he
filed a case asking that the rentals from part of the estate shall be
Rule 80 – Special Administrator given to the grandchildren.

When may a special administrator be appointed? Grandchildren are not entitled to the proceeds from the estate.
Only the widow and the children are entitled.
On two instances:
Rule 85- Accountability and Compensation of Executors and
1. When there is delay in the appointment of a regular Administrators
administrator;
a. Delay may consist of a lot of things A lawyer who at the same is time is executor or administrator of
b. Estate of Dr. Ortañes Case the estate cannot charge attorney’s fees. Remedy?
Dr. Ortañes has three legitimate children and - Charge it as expenses of administration.
five illegitimate. The legitimate wife and the
eldest child sold the shares of a Corporation. Rule 86- Claims Against Estate
The illegitimate children contested the sale and
stated that they cannot dispose the properties In reference to Section 20, Rule 3 (Contractual Money Claim),
before the settlement of the estate. There is no when the defendant dies pendent lite, the case shall not be
appointed executor but the delay in the dismissed but shall proceed up to entry of judgment and once
appointment of an administrator is due to the there is entry of judgment, you cannot execute the judgment
disagreement of the parties as to who to under Rule 39, you have to claim it against the estate.
appoint. So, the court appointed a special
administrator. What are claimable against the estate?

2. Sec. 8 Rule 86, when there is claim against the estate by - These claims against the estate immediately after the issuance
the executor/administrator. of letters testamentary or letters of administration, the court
must order the publication of this appointment for pusposes of
Rights and Obligations of the Appointed Executor or Administrator filing against the estate. This claim against the estate must be
filed within the statute of non-claims.
1. Payment and posting of bonds;
2. Submission of an inventory and appraisal within three Statute of non-claims- filed not more than 12 months nor less than
months from appointment; 6 months from the first publication.
3. Accounting within one year from appointment or as may
be directed by the probate court; Is there a conflict between the statute of non-claims and the
4. Rule 87/88 – Sales, mortgages and encumbrances should prescriptive period?
go first before payment of debts;
5. Payment of debts; and - The prescriptive period for filing a claim is 10 years.
6. Distribution and partition.
Which should prevail, prescriptive period for filing a claim against
Settlement of Estates ends during partition and distribution of the the estate or the statute of non-claims?
estate.
- You have to follow statute of non-claims. So that if you do not
Rule 83 – Inventory and Appraisal file a claim against the estate within this statute of non-claims,
you can no lobger file a claim against the estate notwithstanding
BAR MATTER that it is still within the 10-year prescriptive period (statute of
Sec. 3 – Who is entitled to the proceeds from the estate? limitations).
- The statute of non-claims supersedes the statute of limitations
(10-year prescriptive period)

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What are claimable against the estate? -if without fund to pay, and there is no provision in the will, if
there is any, as to what property can be used in the payment
1. Money-claims based on contract whether express or of debt, the rule provides the personalty goes first. Then if the
implied, which may be due, not due, or contingent. If not personalty proceeds from the personal properties would not
filed against the estate, it is deemed waived. suffice, use the real property.
2. Funeral expenses But if the will so provides, that which is provided will prevail.
3. Judgment for money (Section 20, Rule 3)
2. Sales, Mortgages and Encumbrances (Rule 89)
These can be filed within the statute of non-claims. No need to -you can only sell, mortgage, and encumber real property. As
wait for the 10-year period. Otherwise, if filed after the 6- to personal property, you cannot mortgage or encumber
month period provided for under the statute of non-claims, them, you can only sell them.
you can no longer claim.
3. Distribution and Partition of the Estate (Rule 90)
Section 7, the estate is a mortgagor. -if something from the estate remains after payment of debts.
How to claim against the estate? -if the estate is not enough for the payment of debt, the
3 options: remedy is preference of credits under the civil code.

1. File it as a claim against the estate Guardianship

2. Apply rule 68, foreclosure of real estate mortgage
3. Avail 3135 as amended, extra-judicial foreclosure 3 Kinds:
These are not successive remedies. They are alternative. 1. Natural- parents
Availment of one is a waiver of the other. 2. Judicial- anyone qualified to be appointed as guardian of the
person of the ward or the property of the ward
Filing a claim against the estate is not by petition. If there is an 3. Guardian Ad Litem- anyone qualified who has a limited
ongoing settlement of the estate, it is easier; but if there is no authority because he is appointed only for a particular purpose
ongoing settlement of the estate, initiate the settlement of the
estate because you are a creditor, a person interested in the Under the present rule, as amended, there are two objects of
estate. If filed, the claim is already there. guardianship:

But if there is an ongoing settlement of the estate, you have only 1. Guardianship over the person of the ward
to present evidence to the clerk of court. 2. Guardianship over the property of the ward

Upon submission of documentary evidence to establish claim, the There is a middleground or the third kind:
clerk of court will notify the administrator/executor of the estate
to file Answer to the claim within a period 15 days. -Guardianship over the person and property of the ward.

The Answer of the executor/administrator may either be positive Two grounds in order to apply for guardianship:
or negative. If positive, the settlement court will set aside part of
the estate to answer for that claim; if the Answer is in the 1. Guardianship over a minor- governed by the new rule. (Adm.
negative, hearing will be conducted and the Court will decide. Matter ___, 2003)
2. Guardianship over an incompetent- still with the present rules
Setting aside of part of the estate is not yet for distribution. The of court
law says “in due course of administration”, meaning, wait for the
time for proper distribution (Rule 90). So it cannot be distributed Before the amendment on the law on guardianship, being a minor
yet. It is just set aside. is already a ground for guardianship. Now, under the new rule,
mere minority is not a ground. You have to qualify the situation of
Do you have now preferential right in the distribution of the the minor.
estate?
Incompetent- prodigal, deaf-mute, unable to read and write,
- No, because there is no payment of debts yet. insane, imbecile, one who cannot take charge of his own affairs.

If you have a claim but it is recovery of real or personal property,
recovery of interest therein, lien theron, or claim for damages
arising from injury, you cannot file that as a claim against the
estate. You have to file a separation action against the executor or
administrator of the estate under Section 1, Rule 87 (Actions by or
against executor or administrator of the estate).
Penultimate Duties of the Executor/Administrator
1. Payment of Debts (Rule 88)
Jurisdiction over a petition for guardianship over the incompetent
is with the RTC.
Petition for guardianship over a minor is with the Family Court.
If the incompetent is at the same time a minor, Family Court has
jurisdiction.
Oropesa vs Oropesa
General Oropesa was the subject of petition for guardianship by
his own two children saying that he cannot take care anymore of
his affairs because of the young girlfriend.
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 3.
The SC said that the allegation was not proved. Petition did not
succeed.
Bond
Under the new rules, natural guardians are required to post
bonds. They cannot sell the properties of their wards. They have
to apply for appointment as a judicial guardian or guardian ad
litem only for the purpose of selling particular properties.
BAR MATTER:
Rule 101 (Hospitalization of Insane Persons)
Rule 103 (Change of Name)
Rule 108 (Cancellation or Correction of Entries In The Civil
Registry)
Special Proceedings
REMEDIAL LAW BAR OPERATIONS
Criminal Procedure
Villa Real case on Probation
Settlement of Estate is the most important on Special Proceedings
Salient Points:
1. Venue and Jurisdiction
Venue – doctrine in fule, substantiated, latest case is San
Luis vs. San Luis
The venue in settlement of estates is the last
personal, physical abode of the decedent.
Reprobate of the will
Rule 77
When a will is executed abroad under the law where it
was executed, you cannot implement that in the country.
You have to file a petition for enforcement of a foreign
judgment but that is strictly known as the Reprobate of
the will.
Remember: 5 requirements of Reprobate of the will
2. Claims against the Estate
Rule 86, Sec. 7
When the estate is the mortgagor
The mortgagee has three options but one would exclude
the other, the availment of one is the exclusion of the
other.
1. File it as a claim against the estate under Rule 86;
2. File judicial foreclosure under Rule 68; or
3. File Extrajudicial foreclosure under 3135 as amended
by 4118, he cannot ask for deficiency judgment in
the same action. Is there deficiency judgment? Yes
but in a separate action.
If he chooses one, he waives the other.
In Rule 87, the antithesis of 86, but take note also that
Sec 5 regarding the fact that the estate is the mortgagee.
Guardianship
Oropesa vs. Oropesa
Two Rules on Guardianship
1. Rule in the Rules of Court; and
2. The Administrative Matter or Guardianship over
Minors
To apply for guardianship over Minors, minority is not the
ground alone. Solely the fact of minority cannot be a
ground for guardianship. It should be qualified.
e.g. Death of the parents; remarry of one of the parents
and incapacity on the part of the parents
Minority before the amendatory rule, 2003, by being a
mere minor that can already be a ground for petition for
guardianship. But incompetency, it is there already in the
rules.
Jurisdictional Aspect of this:
When incompetency is the ground in guardianship, it
should be filed with the RTC. But if it is a minor, it should
be filed with the Family Court.
The Family Court is separate and distinct from the RTC
As to the Venue
The residence of the ward, prospective ward.
And also the Bond
When is Guardianship terminated?
When the ground, the cause for the petition for
guardianship ceases or ends, that is the termination of
guardianship.
Carmen Caniza as represented by Amparo Evangelista vs.
CA; 1997 or 1998
Don’t read it as if the rule on termination of guardianship
here was overturned. It is still the same. Read this
thoroughly.
Upon the death of the ward, the guardianship was
terminated. The case continues because the guardian is
the niece of the ward. Even by substitution, it is still the
same.
Case in QC of a Solfem old woman, the niece (Amparo
Evangelista) filed guardianship over the person and
property of her aunt. Petition was granted. While
exercising her duties as a guardian, she found out that
one of the properties is being leased to the Estradas. But
it is not actually being leased but merely being occupied
by Pedro Estrada who is the all-around worker of her
aunt – the driver, gardener, and all. Since she needs
medicine for her aunt, the property being occupied
should be sold. But since it is being occupied by the family
of Pedro, she filed unlawful detainer as a guardian,
representing the owner. The petition was granted.
However, Pedro’s family filed an appeal. Therefore, the
judgment cannot be executed since the judgment is not
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 yet final and executory. During the pendency of the
appeal, Carmen died. The niece is requesting to dismiss
the appeal on the ground of improper party since there
is no longer guardianship. You cannot represent
someone who is no longer around. CA dismissed the case.
Hence, appeal to the SC.
Was guardianship terminated?
Guardianship was terminated because the rule is very
clear that when either the ward or the guardian dies then
wala na. It is likened to SPA. Pagnamatay na ang isa,
whether the principal or the agent, wala ng SPA ganun
din ang guardianship.
So the guardianship was terminated but will that call for
the dismissal of the case? SC said that NO because of
substitution. Who is the compulsory heirs? Substitute the
ward by the guardian. And she is the niece. Therefore,
the unlawful detainer case should continue.
Bonds on guardianship.
4. Hospitalization of the Insane Person
Enlarged and enhanced the provisions of this during the
revised rules on special proceedings.
Medical commitment – new title of Hospitalization of the
Insane Person on the Revised Rules on Special
Proceedings.
New Rule on the Hospitalization of the Insane Person
covers not only the insane but even the drug dependents
and those who are with or afflicted by contagious
diseases.
Not only Secretary of Health can treat the contagious
diseases but even the Regional Health.
But the new rules are not yet approved.
5. Adoption
Definition. What is adoption?
Adoption is a juridical act, a proceeding in rem, which
creates a relationship between two persons similar to
that of legitimate paternity and filiation.
A juridical act – it cannot be a subject of a contract. There
must be a judicial order that is why it is a juridical act. It
must pass through the court.
Proceeding in rem – it binds the whole world.
Which creates a relationship between two persons –
object or things are not included.
A relationship similar to that legitimate paternity and
filiation – only a relationship “similar”
The law can never approximate or substitute nature.
Anak ay anak. Tatay ay tatay.
Paternity and filiation – should not be interpreted
literary.
Paternity – man, father
Filiation – son
These are used generically. Includes maternity.
Legitimate – it is accepted. All the rights of the natural
father, mother, child also apply here.
Rules on Adoption has taken a lot of changes through the
years. Being adapted on the new trends. But
substantially, it is the same.
Adoption was formerly governed by the Child and
Welfare Code, PD 6303. This went through a lot of
amendments.
At present, the law governing adoption is Domestic
Adoption Act of 1998 and Intercountry Adoption Law of
1995.
Intercountry Adoption Board – quasi-judicial
instrumentality
The governing law is R.A. 8552, Domestic Adoption Act of
1998.
Rules of Procedure which took effect in 2002 (not sure of
the year)
End 32:30
R.A. 8043 and 8552 law on adoption, when you know the
law, you already know the rules.
Definition. Child. Who can adopt?
Anyone below 18 years old – Domestic Adoption Act
Any child below 15 years old – Intercountry Adoption Law
*Legal age is not the only requirement to qualify to
adopt.
BAR MATTER
Liza is a 19-year-old Filipino, working and handsomely
earning who wants to adopt little Mario. Is she qualified
to adopt?
No, Liza cannot adopt because the she no full legal
capacity. The law provides that a Filipino of legal age who
has full civil capacity. She doesn’t have a full civil capacity
because under our Civil Code, one has only full civil
capacity at 21 years old. So, she does not have the full
exercise of her civil rights.
Under the Family Code, a 19-year-old girl cannot marry
without parental consent.
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Prospective Adoptee
Must be legally available for adoption. When is one
legally available for adoption?
OLD RULE: There must be a judicial declaration that the
adoptee is legally available for adoption. Judicial
declaration means that you need to go to court.
NEW RULE: In the very petition for adoption, you start
with a judicial declaration that the prospective adoptee
is legally available for adoption. No need for a separate
petition.
Legally available for adoption
1. Voluntarily committed – the parents renounce their
parental authority and commit the child to DSWD;
and
2. Involuntarily committed – the government forced
the parents to commit the child to DSWD.
a. Abandoned child – must have been
abandoned for 6 months; and
b. Neglected child
Child placement agency can also be a Child caring agency
but a Child caring agency is not necessarily child
placement.
Child Caring Agency – who takes care or provides support
materially, financially, psychologically to the child but
they are not authorize to file adoption proceeding.
Child Placement Agency – not only care but they can ask
for the matching.
Simulation of Birth
When you try to tamper with the Civil Registry and make
it appear that you are the parents of a child who is not
really your own. This is a criminal offense.
There is an amnesty on this.
Case: IN RE: Adoption of Michelle and Michael Lim
Husband and wife Lim. The wife is an optometric. A child
was brought to her clinic who during that time is 11-day
old. She took care of the child and called her Michelle
Lim. The birth was simulated. After a year, the same
woman brought another child. Again, she simulated the
birth of this second child and named him, Michael Lim.
When Domestic Adoption Act was enacted, Mrs. Lim
already knew that simulation of birth is a criminal offense
and there is amnesty. So, Mrs. Lim would like to adopt
the children. It is stated in the law that when you avail of
this law then you will be exonerated. When she filed the
petition of adoption, Michelle is already married and
Michael is already of age. Mrs. Lim had a second husband
already who is an American citizen but they already have
the plan of separating. But Mrs. Lim still acquired the
consents from her husband, from Michelle and Michael
to adopt. The petition was eventually granted but
appealed by the Solicitor General.
And the decision of the SC was against the adoption on
the ground that the adoption must always be filed jointly
by the husband and the wife even when there is a
prospective plan to divorce and even the spouses are
separated in fact. The adoption must be a joint adoption
by the spouses.
Adoption Requirements:
1. 18 years of age;
2. Full civil capacity;
3. Qualified emotionally, psychologically, financially,
and physically (totality of the person); and
4. 16 year-age gap – between the adopter and the
adoptee
Rationale: To lessen immoral or illicit relationships.
R.A. 8552 Who can adopt?
1. Filipino – mentioned above;
2. Alien – always all the requirements of a Filipino and
residency requirement; with diplomatic relationship
with the Philippines; and duly certified and qualified
to adopt according to their home country law; and
3. Guardian – only after the termination of
guardianship
Consent is very important. Most of the cases refer to the
requirement of consent. The consent of the adoptee if he
is at least 10 years old and the parents of the prospective
adoptee, the mother and father; and the children of the
adopter whether legitimate or illegitimate; and spouse
since adoption must always be joint.
Cang VS. CA
Mr. and Mrs. Cang in the Philippines. Mr. Cang is a
womanizer and Mrs. Cang wanted to end their marriage.
So, Mr. Cang went abroad and stayed there to file a
divorce. He left behind three children, all minors. When
Mrs. Cang got sick, she wanted that their children be
adopted by her brother-in-law and sister who were
childless. A petition was filed. When Mr. Cang knew
about it, he came back in the Philippines and opposed the
petition on the ground that he did not give his consent.
The petitioner claimed that the consent is no longer
necessary because he already filed a divorce and in effect
he has abandoned the family already. When this reached
the SC, the SC denied the petition on the ground of lack
of consent on the part of the husband. For the defense of
abandonment to be valid, it must be total and absolute
abandonment. In the case, there is no absolute or full
abandonment of his parental authority. The husband
regularly communicated with the children and the
husband sends certain amount of money to the children
and sends gifts to the children on special occasions.
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 The SC states that how there can be full abandonment if
the communication and good relationship continue.
While adoption is always to the best interest of the
prospective adoptee but that should not deprive parents
their parental authority. This parental authority does not
only consist of in support but rather the relationship of
the father and children must always be considered.
According to the wife, in the course of the testimony, the
children already wanted to live with their uncle and aunty
and they can provide. According to the SC, you cannot
delegate your parental authority just like that simply
because the children wanted to be adopted does not
mean that it is to their best interest.
Castro VS. Gregorio – Consent; Annulment of Judgment
on the ground of Extrinsic Fraud
Atty. Jose Castro of Laoag was married to Rosario then
while they were married they had one child who died in
infancy. After the death of their first child, they decided
to separate. They remained to be good friends to the
point that they got back together. They had another child
named Joana. Mrs. Castro separated from the husband
on the ground that Mr. Castro has homosexual
tendencies. Mrs. Castro continues to support their child
and every now and then Mr. Castro gives support as well.
The lawyer sought to adopt his two allegedly illegitimate
children from his house helper and the adoption was
granted. Atty. Castro died. Mrs. Castro was eventually
informed about the adoption and she said that she never
knew the adoption. That her consent was not secured.
That the adoption was filed in Batac which not Atty.
Castro’s residence.
BAR MATTER
What is the remedy of Mrs. Castro?
Annulment of Judgment on the ground of fraud.
Fundamentally, there was no consent. But the facts of
the case states that these two children are not really his
illegitimate children but the children of Larry to the house
helper. Larry is the husband of the house helper of Atty.
Castro and Atty. Castro’s lover. And in order to help his
lover, he adopted the children since Mr. Castro has
homosexual tendencies. There was fraud but
fundamentally, the consent was not secured.
ISSUE: Annulment of the decision of the adoption.
Check Santos VS. Santos
Grounds on Annulment of Judgment:
1. Lack of jurisdiction;
2. Lack of due process; and
3. Extrinsic Fraud.
IN RE: STEPHANIE NATALY GARCIA
Illegitimate child of Mr. Catindig. Mr. Catindig wanted to
adopt his illegitimate child. Granted. But in the very
petition for adoption. The petitioner asked that the child
would retain Garcia, the family name of the mother.
Remember that in adoption, it is automatic that the
family name of the petitioner/adopter is followed by the
adoptee after the decree of the adoption. Following the
adoption, the family name now of Stephanie would be
Catindig. But Mr. Catindig wanted that the middle name
now of Stephanie should be Garcia. This was opposed by
the Solicitor General and stated that it should be in a
separate petition. That would be Change of Name under
Rule 103. Hence, appealed to SC.
SC reversed the decision. Today, Sec. 10 of the new Rules
allows in a petition for adoption, change of name and
middle name. But at that time it is not yet allowed. There
is no provision in the rule that the family name of the
illegitimate child carrying the name of the mother should
also be maintained or retained. Neither is there a
prohibition. Considering that the identity of a person
depends not only on the paternal side but also on the
maternal side. There is no reason why he could not adopt
Garcia as the middle name of Stephanie. The name now
will carry, as pronounced by the court, Garcia as the
middle name of the child and Catindig as her surname.
Carula San Wang Case
We want to remove the middle name on the ground that
we are going to Singapore. And in Singapore, people has
no official middle name.
The SC disapproved on the same rationale as in the case
of Stephanie Garcia wherein the court stated that the
identity of a person depends not only on the paternal
side but also on the maternal side. Depriving the middle
name is the deprivation of the person’s maternal
identity.
BAR MATTER
With regard to consent, suppose the child is a product of
egg transplant. The consent is need. The question is
whose consent is necessary. Is it the natural father or the
biological father. The biological father is the sperm
donor. The natural father is the one who took care of the
child.
There is no jurisprudence. You can only give
rationalization. Considering here that it would be
detrimental; the sperm donor should be unknown.
Reason dictates that you should acquire the consent of
the natural father.
However, if you are going to ask me on this, get the
consent of both if the sperm donor is known.
The law on recessional is different. The adopter can no
longer rescind the adoption, it is only the adoptee who
can rescind the adoption.
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 Who is entitled upon the death of the adopter. It goes
back to the biological parents.
Bartolome VS. SSS
2014
A certain seaman was earning handsomely and he met
an accident while on board a ship and he died. The
biological mother filed an application with the
Compensation Act as beneficiary. This was disapproved
by SSS on the ground that during the childhood when he
was only less than 2 years old (the seaman), he was
already adopted by his grandfather. And because of that
adoption, the parental authority seized. And under the
Compensation Act, according to the law, because of this
the parental authority was never returned to the
biological mother even upon the death of the adopter.
Refers to all kinds of illegal confinement or detention or
illegal or unlawful withholding of custody from a person
entitled thereto.
Unlawful withholding of custody
- Happens to husband and wife as well
E.g. Unlawful withholding of custody from the mother
Illegal detention or confinement
- When it violates the constitution or the law
If the court that renders judgment without jurisdiction
then it can be subject for habeas corpus.
Serapio VS. Sandiganbayan

This is exceptional. SC found out that after adoption,
before the adoptee turned 2 years old, the adopter died.
Because the adopter died, the biological mother took
care of the child again until the child became a seaman.
According to the SC, it should be the adopter who is
supposed to benefit. But in this particular situation
considering that parental authority has returned to the
biological mother because of the death of the adopter,
the biological mother is entitled to the benefit. This is a
peculiar case.
Filed a petition for habeas corpus. The SC said that the
remedy is wrong because you have a remedy against
illegal confinement in your case where you are confined
by virtue of a warrant of arrest, you can always ask for
bail.
Doctrine: If there are other remedies, you cannot avail of
habeas corpus.
Buildner Case

Intercountry Adoption Law Mr. and Mrs. Potenciano got separated and divided the 6
children to the spouses. After a vacation, he returned to
Can only be availed of by Filipino citizens living abroad or his wife. Then the two children who used to be with the
those permanently residing abroad. You can file to the father told her mother that you are killing Dad. So, the
court here in the Philippines under the Intercountry children brought the father in their Makati house. The
Adoption Law or file to the Intercountry Adoption Board. mother filed a petition for habeas corpus for illegal
The Intercountry Adoption Board is not scattered all over detention. In addition, Mrs. Potenciano requested for
the world, only located in some countries (i.e. Chicago). visitorial rights of a spouse.
You are trying to avoid the residency requirement.
The SC said that the record will show that Atty.
Can a foreigner avail of the Domestic Adoption Act of Potenciano notwithstanding his more than 80 years of
1998 as well? age is still of very sound and disposing mind. If you have
Yes. Intercountry Adoption Act does not proscribe the a sound and disposing mind and you left the conjugal
availment of Domestic Adoption Act of 1998. home then there is no illegal detention or there is even
no withholding of custody because when you get married
So a foreigner can stay here in the Philippines for at least you do not surrender your privacy. As to Mrs. Potenciano
three years prior to the petition and comply with the requested for visitorial rights of a spouse. Visitorial right
Domestic Adoption Act. only refers to parents and children relationship but as to
husband and wife there is no visitorial rights.
Emphasis on the Exception:
Pending: Audio No. 21
Foreigner who comes in the Philippines and seeks to
adopt a relative within the 4th civil degree of Pending: Audio No. 22
consanguinity – requirement on residency will be
removed. The Rules of Evidence is very practical. Under Rule 130,
admissibility of evidence. Look at the division of admissibility of
Seeks to adopt his/her own illegitimate child* evidence. First, you are presented of different rules, according to
Seeks to adopt the legitimate child of the spouse* the kind of evidence. As to their nature, there is only one rule on
object evidence. In documentary evidence there are only 2 rules.
*These are not only require an exemption for joint Before there are two principles, but now there are three because
adoption but as well on the residency requirement. of the introduction of Rules of Electronic Evidence. Then all the
rest will be about testimonial evidence. Do you see why that is
6. Habeas Corpus so? Why there are so many Rules under Testimonial Evidence.
Page 69 of 95
There are only three rules, used to be two rules on documentary
evidence. And there is only one rule on object evidence. It is
because the strongest kind of evidence is object evidence. It is
the strongest. As far as its credibility is concerned, object
evidence is of the highest order. That is why it takes but one rule
to provide for object evidence. Next to that is of course,
documentary evidence. And the rest would be about testimonial
evidence. Why there are so many? It is because it is the weakest
of all evidence. But, being the weakest of all evidence,
testimonial evidence is the most important. So again, the rules
are necessary for testimonial evidence because it is the most
important. Object evidence and documentary evidence, while
they have the strongest effect of credibility or acceptability or
even admissibility, they cannot stand on their own, because
these two kinds of evidence, object and documentary evidence,
will have to be testified to. They cannot stand on their own. You
present a person as an example. A person can be an object
evidence, you present Mahal. Do you know Mahal or Mura? You
present them as object evidence to establish dwarfism, that
there is dwarfism in the country. Will you arrive at the conclusion
that there is dwarfism in the country? No, someone must testify.
You present Mahal or Mura to show the entire world that there
is dwarfism in the Philippines. It requires someone to sponsor
object evidence. Another example is a calibre-45 gun, we need to
offer or present the gun to the judge to be marked. Someone
must tell us, what relation has this to the fact in issue. What
relation has this to the corpus delicti. To the fact of the crime.
Corpus delicti. So someone must sponsor that. Kaya nga while
documentary and object evidence would greet them? Credibility
and admissibility as against testimonial evidence, testimonial is
the most important, because without it, these object and
documentary evidence cannot stand. The first rule there is about
real evidence or object evidence. And what is object evidence? It
is described or defined as that which is addressed to the senses
of the court. To the senses of the court means to the senses of
the judge or addressed to the judge. These refer to the five
senses of man. Because object evidence is categorized according
to what sense of man it is addressed to. The kinds of object
evidence depends on the kind of sense of man to which it is
addressed to. So if that evidence is addresses to the sense of
sight, you call it visual evidence; to the sense of hearing, it is
auricular or audio evidence; to the sense of taste, gustatory
evidence; to the sense of smell, olfactory evidence; to the sense
of touch, BBBBBBBBB. If you ask me, which is the most
important of them. It depends on the fact of issue, although
ordinarily what is often used in court is audio-visual. So any kind
of evidence that address not only of this world, but it can be
seen, it can be read, or smell, like perfume, olfactory evidence of
foul odor. It is address also to the sense of smell. The skin, sense
of touch, you try to examine the texture of the skin. Olfactory
evidence is a very strong evidence. So this is object evidence.
Under object evidence there are three rules, we have the best
evidence rule, the parole evidence rule, and then electronic
evidence rule. The term best evidence rule is a misnomer. It is
because the rule says, original copy of the document does not
necessarily means that it is the best evidence. This should
instead be called the original evidence rule. Under the best
evidence rule, it is not necessarily a documentary evidence. As
we said precisely, object evidence maybe of the highest order.
When we say best evidence rule we are referring to the original.
But what you have to take to remember here is the formulation
of the best evidence rule. When the subject of the inquiry is the
contents of a document, there is no other admissible evidence
other than original. Take note of the first phrase, that is crucial.
When the content of the document is the subject of the inquiry,
so that if the content of the document is not the subject of the
inquiry, but you are only trying to establish the existence of the
document or the age of the document, or the quality of the
document, the best evidence rule will not apply. That is crucial.
When the subject of the inquiry is the content of the document,
there is no other admissible evidence except the original of the
document. This term original descended for the rule is getting to
be passé already. The possibility of the chance of being asked in
the bar is very small regarding original document, because now,
you prepare an appellant’s brief or a memorandum to be
submitted before the Supreme Court. Under the best evidence
rule is what is quite important is the original, the first copy. You
have to present the original; all other copies are not acceptable
or admissible. That is the best evidence rule. Nowadays, when
can you say that the document is original? You only print one and
have it xerox. Then you sign. They are all original. So if I were the
examiner why will I be asking about this best evidence rule, when
it is already impractical, because nowadays all copies are original
copies. This best evidence rule, of all the documentary evidence,
will not be asked now if the examiner is keeping abreast with the
modern times. It should be electronic evidence and not the best
evidence rule. For academic purposes nonetheless, you will be
asked what the exemptions are. You don’t have to memorize the
exemption just use your logic. Why can’t you produce the
original? The exemptions found in the rule are matters of logic.
Whatever the logical reason you have that could be the
exemption. Why can’t I produce, because the original was lost;
because the original was destroyed partially or totally; Because I
can’t produce the original, why? because the original is with the
adverse party; because I will not produce the original, because I
am only after the summary of the original. Because the original is
a public record, it is in the custody of a public officer. Just consult
your logic and reason you will know the exemption to the best
evidence rule. Let us now discuss parole evidence. When the
terms of an agreement are set in writing, then there is no other
evidence of the terms of the agreement except those found in
writing. Parole evidence means evidence outside the document.
So that any evidence aliunde is not admissible. Any evidence
outside of the document cannot establish the terms and
condition of the agreement. The rationale behind this is that
when two persons enter into a contract, they put in writing the
terms and condition of the contract, they have already agreed
that this will only be the terms and condition of the contract. All
the terms cannot be established by evidence aliunde, including
oral evidence. Don’t limit yourself to oral testimony, you cannot
prove the terms and condition of the contract under parole
evidence by other contract which is also a documents. Because
that is outside evidence. So you don’t limit this to oral evidence.
The general meaning of that is any document outside the
contract are inadmissible. The reason and logic dictates what are
the exemptions. If your contract is invalid there is no contract to
talk about. Sometimes, the exemption also will be on the
ambiguity of the terms used in the contract. There are several
terms which are ambiguous. It means it can be doubly
interpreted. For example sa klase, give me an example of an
ambiguous word. Ang tagal, ang tagal, sabi ko don’t be shy.
Beautiful. My gosh ambiguous ba ang beautiful. If it is applied to
you yes. An example of an ambiguous word is when you use the
word dollar. If I have to borrow money and asked, I will tell that I
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borrowed Hong Kong Dollar, contrary to what you may say that
what I have borrowed is US dollar. So that is an ambiguous term.
When you devised a real property to Mario Santos, and there
happens to be two Mario Santoses. Then you’ve come to
establish by parole evidence. Because this agreement referred to
here includes wills. But before going into the exemptions, don’t
forget the second paragraph, that is very important. You have
there, parole evidence, then there is a second or third paragraph
which are the exemptions. In second paragraph it states, that the
exemption must be put in the pleadings. Must be set in the
pleadings. What does it means? What that means is that when
you are contesting certain terms and condition that you want to
establish by parole evidence or oral evidence or by evidence
outside the document. You have to set that in the pleading.
Supposed there is a complaint. The complaint is based on the
document and when you run over the document you found out
that there a lot of imperfections in the document, and you want
to contest that in order to be allowed parole evidence or oral
evidence or evidence outside the document, otherwise known as
evidence aliunde. You have to place in your answer that the
contract is imperfect or there are mistakes or imperfection. If
you do not allege that in your Answer then you cannot use
parole evidence. Okay this is regarding the parole evidence. Let
say something about electronic evidence. For purposes of the bar
there is only one question possibly being asked under the
electronic evidence rule and that is the necessity of
authentication. How do you authenticate electronic evidence?
Answer, to authenticate electronic evidence, it must be by
someone privy to the document. One who is not privy to the
document has no right to authenticate the document. How
about an expert witness? That could be an exemption. If you
cannot get someone privy to the document, then you can secure
the testimony of an expert witness. For example, you are trying
to present evidence of text message, you have to present your
cellphone to the court. And show to the court that these are the
copies of the text messages which are hereby printed. Compare.
So that we have to mark here. But when presented, you have to
authenticate before the court the messages you have received
from somebody. In other words you are privy to the document. If
someone is testifying, for example, Mr. X texted Mr. Y and these
are the text messages ( other example, chats, email, etc.). You
cannot do that in court because you are not privy to the
document. I know a possible expert witness here, the service
provider. Electronic evidence can only be authenticated by
someone privy to the document. The best evidence rule will not
apply here because electronic evidence are not considered
original document. They are only, at best, reproduction. So you
have to distinguish another point in electronic evidence. You
have to distinguish electronic message against electronic data
and electronic document. Electronic document consist of
electronic data or message, but these electronic document
creates rights or establishes rights or extinguishes obligations but
not electronic data message. So notice the distinction. For
example, you send a contract to the US through email. Of course
you signed it, it is called electronic signature. Electronic
signature, you know, is not always a writing. Electronic signature
can only be an electronic sign. But it can even be a sound. Back
to my example of the contract, he improves it makes certain
corrections and send it back to you. That is electronic document.
Suppose what you send is a contract of rescission, then it
extinguishes an obligation. As distinguished from simple
messages that do not create rights or obligation. Let’s go now to
testimonial evidence. I asked you to memorize the definition of
evidence. Evidence is the means, sanctioned by the Rules of
ascertaining in a judicial proceeding the truth respecting a matter
of fact. Then the next thing that I want you to remember and
preferably memorize is the qualification of witnesses. This is also
a catch all provision. That is in section 20 of the rule. One who
can perceive and perceiving and can make known his perception
can be a witness. Can a blind man testify? If you forgot the
landmark case, use that general rule. Can a deaf-mute testify?
use the same. Three requirements, first, one who can perceive
means the ability to observe. Perceiving, the ability to
remember, recollect or recall, can make known his perception,
communicate what he can recall. Next we go now to
disqualification. Who are disqualified to testify? The following
are disqualified to testify, under section 21, whose mental
condition is such that he is unable to perceive or perceiving can
not make known his perception. Any of the three he cannot
perform, then he is disqualified. I take emphasis on paragraph D,
the children, because that has been amended already. Because
in the presentation of the problem, it appears that children are
presumed incompetent. The presumption is there is an inability
to perceive and perceiving can make known his perception.
Under the rule on the examination of a child witness, the
presumption now is that a child is a competent witness.
Therefore if you want to assail the competence of a child, the
rule now favors the competency of a child. If you want to assail
the competency you have the burden of proof. Under the rule on
the child examination witness, so if you assail or impugn the
competency of a child to testify, you have to establish it by the
competency test provided for in section 6 of the rule on
examination of a child witness. What is this competency test
about? This is not a psychological test. This is a regular
observation of a searching question of a judge to simply establish
whether or not a child is competent and how will the judge
establish the competency of a child? Through his questioning, he
must determine if the child knows the difference between
truthfulness and falsity. That is the only objective of competency
test. If the child does not find the difference between the two,
then he is incompetent. There is a jurisprudence that a four year
old child was considered competent to testify. But another, a
two year old was considered to be incompetent. While he is able
to perceive, he cannot make known his perception. Under the
rule, the competency test must be done in seclusion, away from
the general public. What is live link testimony? You can find that
in the rule on the examination of a child witness. I think section
25. That is secluded testimony. You isolate the child with the
help of testimonial aids (diaper, gun, person, play toy,
anatomically correct doll). Testimonial aid is different from
support persons. Support person is anyone who accompanies the
child (relatives). You have also a term there called facilitator.
Who is a facilitator? A facilitator is one who propounds question
to the child relayed by the parties concern. To this facilitator, the
child has trust. There are questions barred to be asked to the
child (sexual abuse shield rule). One, the sexual propensity of the
child. You cannot ask regarding past sexual encounters of the
child. But there is an exemption to bar this rule. If you are going
to establish that the accused is not the source of the semen
found in the vagina of the child, then you can ask specific sexual
encounter of a child.
HEARSAY RULE
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 There is a lot of misconception of Hearsay Rule. The Suppose the court ask X, Mr. X why are you telling that A
layman often apply very loosely, they simply say, oh that’s told you that B killed C? I want to show your honor that B is the
hearsay. Meaning to say, it is unbelievable. That is not the concept killer. That would be hearsay. That is inadmissible. That is the
in legal parlance of hearsay. A hearsay rule in legal parlance is that subject matter of the case.
which is not admissible. Why not? Because it is incompetent.
The first example is what we call, which is often given in
For admissibility of evidence, Evidence is the means, the Bar, the Doctrine of Independently Relevant Statement. You
sanctioned by the rules, of ascertaining in the judicial proceeding, are not establishing the fact subject matter of the case, but you
the truth respecting a matter of fact. The word sanctioned, means are only establishing the fact that there was statement made to
competency. So hearsay is an incompetent evidence because it is you by A. What is the truth of the killing by B of C? That is
not allowed by the rules. It is the only reason. The rationale behind independent. What is relevant in that testimony is to establish
the non-allowance of hearsay evidence maybe diverse. But who is the killer. And the statement [that] A told X that B killed C.
fundamentally or basically, it is because the rule does not allow Are you establishing the fact that it was B who really killed C? If
the admission of hearsay. that’s the purpose of your testimony, it is hearsay. That is
inadmissible. But if your purpose in so saying, in so testifying, is
But whenever we say hearsay for purposes of other than the fact that B is the killer of C, that is independent of
admissibility, we have always to consider the purpose. What is the the fact that B killed C. That is why you called that the Doctrine of
purpose of the testimony in order that it will become hearsay? Independently Relevant Statement.
This is the most important part of the hearsay rule. You have to
know what is the purpose of so saying of stating so because if the [Another example] Let’s analyze the testimonies of
purpose is not to establish the truth of the statement which you Colangco. Some are hearsay, because they simple establish the
heard from someone, that is not hearsay. That is why, in a hearsay fact of drug business and it was taken from other sources. But if
rule, three important requirements must be consider: Colangco is stating or is trying to establish the fact that someone
1. There must be an out of court statement or told him, that’s the end of it. Independent of whether or not there
declaration; is a drug business inside the National Bilibid prision, that is
2. That the out of court statement or declaration is admissible. Independent of the fact as the cause of the subject
repeated in court; and matter of the case.
But hearsay does not yet apply, what is the
purpose of repeating that out of court statement in This Doctrine of Independently Relevant Statement is
court? If the purpose is other than to establish the often asked in the Bar. It has a batting average of fifty percent. It
truth of that out of court statement, it is not hearsay, can be asked as an exception or as a rule itself.
it is, therefore, admissible.
3. That the out of court statement or declaration is Take note of the Hearsay Rule. The three requirements,
repeated in court for the purpose of establishing the [a] there must be an out of court declaration [b] repeated in court
truth of that out of court declaration. [c] for the purpose of establishing the truth of the out of court
declaration. If it is not to establish the truth of the out of court
Example: Mr. X is on the witness stand. He is in court. He declaration but other matter, then that is admissible under the
testifies this way, Mr. A told me that B killed C. Who is saying that? Doctrine of Independently Relevant Statement.
X. Where is X saying that? In Court, he is testifying. His testimony
is that A told him that B killed C. That is the out of court Exceptions [to the Hearsay Rule]:
declaration. Who made the out of court declaration? It was A
telling X that B killed C. There are several exceptions under the rules but will
point out only which are quite important or possible being asked.
So the two composite of hearsay rule is present. There is
an out of court declaration repeated in court not by the declarant 1. Dying declaration.
but by Mr. X. So the 2 components are there already. But is it
hearsay? As of now, not yet because you don’t know the purpose What is the rationale of this? It is clearly
of that statement of X that A told him that B killed C. C is the victim. hearsay. All the requirements of hearsay are present.
C is the subject matter of the case and X is testifying that A told Just the word itself will give you an idea why it is an
him that B killed C. exception, by underscoring the word “Dying”. The most
important in a dying declaration is consciousness of
Question: What is the purpose of X testifying that A told impending death because all the other will just come as
him that B killed C. Suppose at the time of the testimony, the a matter of course.
adverse party said: Objection your honor, that’s hearsay. What is It is not consciousness of death because all of us
the purpose? The court asked now, why are you telling the court are conscious of death. We are conscious of dying. In fact
that A told you that B killed C? [X] I want your honor to show that I call death as the most certain uncertainty and the most
on that day that A told me that B killed C. [However,] B was alive. uncertain certainty because it will definitely come but
The fact that B was alive, is that the subject matter of the case? you do not know when it will come. That is why the
No. Is that hearsay? No. Because what is under consideration is consciousness here is that of impending death, not just
the death of C. This is not hearsay. So the objection is overruled. consciousness death.
How does the rule construe of the word
impending? You are aware that you are going to die six
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months from now? That is not an impending death. You
are aware that you are going to die one week from now?
You are not. That is not what is meant here of
consciousness of impending death. You are aware that
you are going to die NOW. This is what consciousness of
impending death means.
Should this be established, therefore, by the fact
that the situation of a dying person even without saying
a word? Yes. This consciousness of impending death can
be established even if no word was stated by the dying.
The term declaration of statement is not absolute.
Death is what you are going to testify to. The
fact of death.
The requirements of admissibility in a dying
declaration, you don’t center only on the fact that it is an
exception to the hearsay rule. You have also to establish
the requirements which are basically: relevancy and
competency.
For example, the declarant is blind, he was
under the conscious of impending death, and he said:
Mario shot me! How can he know if he is blind? This
exception to the hearsay rule, the court does not have to
admit that who __________. You can still assail the
testimony through the requirements of admissibility of
evidence which is either relevancy or competency.
Take note of these requirements:
1. The subject matter must be about the
death of the declarant;
2. What is testified to, are the facts and
circumstances surrounding the
declaration. Surrounding the fact of
death; and
3. Consciousness of impending death.
The statement should not always be in favor of
the declarant. It can be also used against the declarant. It
could be in favor of the accused. So don’t limit it to the
fact that a dying declaration is always offered in favor of
the declarant or in favor of the government. When I say
government, I am talking of a criminal case. Although this
dying declaration is now no longer limited to criminal
cases. Even in civil cases, this is already admissible. It
used to be only in homicide cases and later on it was
admissible in criminal cases but now under the present
rule, in all cases. So whether it is civil or criminal case,
then you can avail of this dying declaration.
This exception must always be tied up to the
part of res gestae. As previously discussed regarding
multiple admissibility that statement or evidence may
either be admitted as a dying declaration or only part of
the res gestae. It can even be considered a declaration
against interest. With regard to part of the res gestae,
sometime, it may not be admissible as a dying declaration
but it can be admissible as part of the res gestae.
Sometime also, it is only part of the res gastae or lying
declaration but not part of the res gestae.
Other exception on the part of the res gestae:
The thing done, that is what res gestae
means, literally.
But legally or procedurally, the
part of the res gestae are acts which are
stated or uttered in a very dire situation.
Yung mabilisan. The word is startling
occurrence. When you speak of a startling
occurrence it is to an average individual.
For example you are walking in
Luneta and you were following a man, all of
the sudden he saw you. About 10 meters
away, you were following a man and talked
to each other. All of the sudden you saw the
head of the man rolling towards you. It was
hacked by a man. You mean to say that an
average man will not be startled by that
occurrence? So when you declare, that man
with a samurai is the one [he] did it, that is
a startling occurrence, that is part of the res
gestae. There is no time to contrive. It is
spontaneaous.
In all of these, the first
requirement in the hearsay rule is that the
declarant is dead already. Because if they
are alive, you should place them on the
witness stand.
Under jurisprudence, the time
frame is not fixed. There is no hard and fast
rule regarding time frame. For example, a
victim of rape, after the act of rape was
consummated; the young girl just went on
the corner of the room and started crying.
After two or three hours, the mother found
out, coming from market, finding the girl,
her child, in the corner crying and asked her
what happened, and answered that a man
raped her. It is considered as part of res
gestae even after three hours from the time
it was happened. It is still considered as long
as the effect on the person is still there. The
effect of rape is not just a matter of hours;
it is a matter of years. Although, what was
said is what is to be testified to why it is part
of the res gestae.
In another case, after 24 hours or
the following day, the victim of rape started
narrating to the mother. The Supreme
Court said, it is no longer part of the res
gestae because there is already the
possibility of contriving.
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 So there is no hard and fast rule in
res gestae. If you are given a problem
regarding this res gestae, answer it
according to the facts and circumstances
and argue accordingly and your argument
must not miss the fact that the effect of the
occurrence is still with the victim. The
startling occurrence is still affecting the
victim because you cannot fix it with time.
Another part of the res gestae is
what you called the “words accompanying
an act” or sometimes called “Verbal Acts”.
For example, from a distance you saw Mr. A
waving an envelope to Mr. B, and with the
passes of that act, Mr. A was saying, ito na
yung 10,000 na inutang ko sayo. So that is a
verbal act. You cannot no longer say that it
was a donation because of the verbal act.
Words accompanying acts can also
be considered as part of the res gestae.
2. Declaration against interest.
In this kind of an exception of the hearsay
rule, is has broaden by recent jurisprudence. It
covers all kinds of declaration against interest not
only pecuniary or financial declaration against
interest; it can also be psychological, emotional, or
moral.
When someone say, for example, that my
companion is not a real wife. Declaration against
interest. Or I am not the owner of the land where my
house stands. It is also a declaration against interest.
But take note always of the requirements. The
declarant is not available to testify, otherwise, the
hearsay rule will not apply.
3. Declaration about Pedigree.
Pedigree is a notable fact in the life of an
individual. That is the general meaning of Pedigree.
Notable fact or situation in the individual. The
enumeration there must be lumped together into a
notable fact, something important in the life of an
individual that is about Pedigree. Like relationship by
affinity, by consanguinity, a fact of marriage,
relationship, this is about the Pedigree.
4. Related to that would be the common reputation.
This is not limited to statements. This is
considered as acts. For example, in Cavite there are
some people with that common reputation. In
Tondo, Boy Tumbling. In Province, they don’t know
the real name but they are known in different name.
This can be part of common reputation. This is
admissible as evidence.
5. Entries in the course of business. (Possible bar
question)
The entrant is not available to testify in
court. This should what you always look for in this
exception, is not available. The general rule,
testimony must be done in open court and the
exception is out of court. So if he is available, put him
in the witness stand. If he is not then that is the only
time that you asked other who have heard him. The
requirements for entries in the course of business
are:
i. The entrant must not be available;
ii. The entry made by the entrant is in
compliance with his duty;
(important requirement) not just
by anybody who made the entry,
he must be performing a duty; and
iii. This entrant is the one which is
hearsay in effect, because it is a
declaration statement out of court
repeated in court to establish the
fact of the entry in the course of
business.
What is the concept of course of
business? Should it really be a business
transaction? No. Not necessarily. What is
referred to here is that to any transaction.
A baptismal certificate entered into a
book or records of baptism is now considered as
an entry in the course of business.
6. Entries in the official records.
What are these official records? These
are Registers, Court records, and Certificates.
How about police blotter? As a general rule,
they are not because [it is] known as hearsay on
hearsay. When are these police matters
admissible as exception as part of official
records? It is when [it is] given to the police by
someone who has personal knowledge about
the occurrence. That would be an exception to
the hearsay rule.
For example, there was a vehicular
accident, a policeman arrived and recorded the
event and recorded it officially in the blotter,
could it be use as an exception to the hearsay
rule? Yes, because this is [an] entry in official
record. But, if a person who is privy to the
accident, he decided to report the accident, but
instead he called his sibling to blotter the
accident then the police made a blotter. Is that
admissible as an exception to the hearsay rule?
No. Because this is known as hearsay on a
hearsay.
7. Returns. They are exception to the hearsay rule;
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 8. Learned treaties; Mr. X: This is my signature.
9. Commercial lists;
10. Testimony at the former trial. (possible bar Will that be an exemption to the hearsay rule? Of course
qsuestion) not.

This may be tied up with depositions.
Admissible? Yes. As an exception to the
hearsay rule. But take note, it must be the same
parties and there was an opportunity to cross
examine the witness by the other party to
comply with the cross examination rule.
Atty.: This is the signature of Juan Dela Cruz. How do you
know that it is the signature of Juan dela Cruz?
Mr. X: Well, I was his employee for the past twenty years,
I know his signature, I am familiar with his
signature.
It is an exception, that is an opinion.

Section 20 of rule 3. Contractual money Atty.: Mr. Witness, do you know Mr. Juan Dela Cruz?
claim. There are many interelations involved, it Mr. X: Yes I know him.
is interelated to Rule 39, related to Rule 86, Atty.: How do you describe his mental sanity?
related to Rule 87, related to Rule 57. If these will Mr. X: I think he is mentally challenged.
be asked in the Bar, they are the difficult Atty.: Why mentally challenged?
questions. Mr. X: Well, we were together in the mental hospital. He
just left ahead of me.

11. There is an exception to the hearsay rule which is not The other exception is that of an Expert Witness.
found there among the eleven (11) which is the
Testimony of a child. We have discussed this already For purposes of trial in court, when you present an expert
under the child witness rule. witness, you have always to lay the bases, lay the predicate
because if you do not establish his expertise on a particular
OPINION RULE matter, then you cannot ask him about his opinion. So lay first the
bases.
Under this rule, it simply means that in court, a witness
cannot give his opinion. Under the basic qualification, one who In actual practice, if you are going to present an expert
can perceive and perceiving can make known of his perception, in witness, you should prepare already the biodata of your expert
other words, the knowledge that came to him was on account of witness. And before you present him in the witness stand, you
his personal observation not what he opines. furnish a copy of his biodata to the Fiscal, if criminal case or to the
adverse counsel if it is civil case. That’s why when you go to the
In actual practice, be very careful when you get to become court, you simply ask the adverse counsel if they are going to
lawyers. If you are coaching a witness, it does not necessarily accept his expertise.
[means] that you are cheating but you are teaching the witness
how to correctly testify. For example, you tell him never premise For example, the fiscal said, “no, I don’t accept his
your testimony by saying “I think” because that is already expertise,” it will take time to lay the predicate. You have to lay
objectionable. That is already a matter of opinion. “I believe” [is] always the bases.
already a matter of opinion. Opinion[s] are not allowed in the
course of the testimony. There is a certain witness that an expert witness is
required. Like today, declaration of nullity of marriage is
What are the exceptions? As an ordinary witness, there psychologist.
are exceptions four (4) exceptions:
When you have already established the expertise of this
1. When you testify in the handwriting of an individual; witness, you can ask him opinions because that is an exception.
2. When you testify on the identity of an individual;
3. When you testify on the mental sanity of the Once the expert witness has testified, generally, don’t
individual; and cross examine. When you present a expert witness, as a general
4. When you testify about your impressions on the rule, if you are not an expert on the subject, you should not cross
individual. examine because you will not get any from him because he is an
expert and you are not an expert on the subject unless he is a
For example, you call Mr. X on the witness stand and you lawyer and discusses legal matters, then you can cross examine
show him a document. him. But if he has another field, let us say Structural Engineer,
what do you know about it? None.
Atty.: Mr. Witness, I have here a document, please go
over page four. What do you see on page four on After you controvert that expert testimony, you
the right hand lower portion? controvert him by presenting also an expert witness or even a
You find there a printed name Juan Dela Cruz, more expert witness. Then let the court evaluate who is the better
above which is the signature. Atty.: Whose signature is witness between the two.
that?
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 The opposite of an expert witness is what you call Lay It is easy to understand the Burden of Proof than the
Witness or Lay Evidence (possible bar question). Burden of Evidence in Criminal Cases than in Civil Cases. Because
the Burden of evidence in civil cases is shifting many times. But
Lay Evidence is simply the testimony of a non-expertise the burden of proof will always remain on one who has a claim.
witness on ordinary matters. Also, it is not always the plaintiff who has the claim, it can be the
defendant, third, fourth or fifth defendant, that is why the burden
of evidence shifts but not the burden proof.
Under Rule 130, the Character.
Reminder: Passing the bar does not only need a push from below
What is the general rule? Character evidence is but a lift from above.
inadmissible. Not admittable. Elmer was 16 years old when he was presented as the primary
child witness against the accused. 5 yrs. thereafter, he was again
Exceptions: presented as a witness to be examined in the same case. His
statement 5 yrs. ago became inconsistent with his current
1. In Civil cases, any character, whether good statement. May his statement 5 yrs. ago which was conceded as
or bad, can be establish in civil cases if it is privileged be still appreciated?
relevant to the case at issue. Ans.: What is privileged remains to be privileged. It will not change
2. In criminal cases, you can establish the through the years. This is only conjectural. Unang una meron ng
character only in rebuttal. rule ngaun the 1 day-examination of witness rule kaya malabo
nang mangyyari yan.
Rule 131, On Burdens of proof and presumptions. May he be impeached? It is another matter covered by Section 11
of Rule 132. Impeachment of a Witness. You can always
What is the burden of proof? The burden of proof is the impeached witness provided there are grounds. It will be discussed
duty of a party to establish his claim. Whoever has the claim has later.
the burden of proof. So don’t immediately say that it is always the Burden of Proof and Presumption.
plaintiff because you may be trying to establish the claim in a What is a presumption? A presumption is an inference. You
counter-claim and, therefore, if it is the claim in the counter-claim, arrived at a conclusion – a logical conclusion. There are two kinds
it is the defendant which has the burden of proof. Whoever has a of inferences:
claim has the duty to prove his claim. 1. Presumption of Facts – is a simple inference. Any object
which is lighter than air will have to fall down when thrown.
In criminal cases, we often say, that the burden of proof Pag tumapon ka and that object is heavier than air it will fall.
sticks or remains with the prosecution. Because what is in the Inference: Living things grow and die. Very simple inference.
criminal case? The criminal case is nothing else but to show that 2. Presumption of Law – is an inference directed by laws. Under
the accused is guilty beyond reasonable doubt. There is no other our rules, there are only two kinds:
purpose in criminal case but to show that the accused is guilty for
which he was charge. Therefore, the obligation to prove that guilt Two kinds of presumption of law:
never leaves the prosecution at all times from the start to the end a. Conclusive presumption – that which cannot be
because in criminal case, there is no counter-claim, cross-claim, controverted. Court
third-party or fourth-party complaint, there is even no has no other choice but to accept
intervention. That is why the burden of proof sticks to the
prosecution because there is no other thing to determine in the Two (2) Conclusive Presumption
criminal case except the guilt of the accused. i. Estoppel in Pais – when you make a representation
to somebody and that somebody on the basis of your
However, when the accused interposes self-defense, representation acted on it whether negatively or
(remember Rule 6 in kinds of pleadings, affirmative, self-defense) positively, then you can no longer deny the fact of
meaning to say that he already accepts the facts for which he was your representation. You are estopped!
charged. He has not confessed. He already admits the fact of
killing but he does not confess to the fact of killing. That is why Ex. I am the agent of Mr. X selling to you property of
even in an affirmative defense, the burden of proof never leaves X and you on the basis of my representation believed
the prosecution because the only thing that the accused does is to that I am the agent of X, you enter into a contract
admit the fact and never confess to guilt or acknowledgment of through the principle of agency with me. I can no
guilt. But because of this admission what shifts now the burden of longer deny agency because I am in estoppel ----
evidence. conclusive presumption; cannot be controverted.
What is the burden of evidence? The burden of evidence
is coming forth forward with the evidence. Meaning, who will now
ii. Estoppel by a Tenant (lessor/lessee;
present evidence? This is sometimes called reverse trial. The
landlord/tenant estoppel) – A lessee for example
burden of evidence now is with the accused. He now starts to
who is the occupant of the premises on the basis
present setting forth forward the evidence of his claim. Since he
of accepting the fact of contract of lease. You
has now a claim, self-defense. But has he the burden of proof
accept the fact that lessor duly authorized to
now? No, only the burden of evidence.
enter into contract. You cannot deny anymore

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 the authority of lessor in leasing unto you the
property.
A leased to B a parcel of land. B cultivates it.
Later on B found that A is not the owner. He stop
paying rental for the said reason. Is the reason
valid? No! When he enter into the contract, he
acknowledge the fact that A has authority to
lease the property unto him. He is therefor in
estoppel.
b. Disputable presumption – there are 37 disputable
presumptions (“a-kk”). (Atty. Brondial pointed out only what
are possible bar questions)
i. Paragraph “e” (Suppression of Evidence). The
requisites are as follows: (i) Willful suppression.
(ii) evidence must be material not just
corroborative; and (iii) evidence is not available
to both parties (Improtant!)
Example #1 (negative): In a case of rape, victim
was not presented as a witness. When the
accused was convicted, he appealed. One of the
ground raised was suppression of evidence.
SC: There was no suppression of evidence in this
instance because evidence which is testimonial is
available to both parties. If prosecution did not
present victim as a witness, you could have
subpoena the victim and present as hostile
witness. While the 1st and 2nd requisite may be
present, 3rd requisite is not. All requisites
mentioned above must be complied with. If one
is lacking, there is no suppression of evidence.
Example #2 (positive; Brondial’s own case): My
client (former law student in AUSL) filed a case
against hospital charging it as a corporation, as
well as the doctor, nurse chief of Dept., for
damages, because his son died. Nanganak,
premature ang anak but died on 43rd day. During
trial, I was taking direct exam. I have hospital
record. I noticed I have only record from day 1-40,
wala ung days 41 to 42. In open court, I manifested
that I need this 2 missing records immediately
preceding the death. The defendants said we will
produce the record. They were given certain
period of time but unable to produce record.
Requested extension but still failed to comply. I
moved for the suppression of evidence which the
court granted! What is the effect? That I want to
establish is deemed establish. There is clear
suppression of evidence because all the three (3)
requisites are present. Namatay ung bata kc my
misfeeding, hndi napadede sa tamang oras which
may contain in that record, I assume.
ii. Paragraph “m” (Chain of custody rule).
Regularity in the performance of a public
function. Commonly applied in drug cases – buy-
bust operation. If there are steps to be followed
and one of the steps is not complied with, the
disputable presumption is not applicable.
iii. Paragraph “w” – Absence. Gen Rule: any one
who has been absent for seven (7) consec. Years
without news of the absentee being alive, he is
presumed dead. This is disputable presumption.
Exception:
(1) for the purpose of opening one’s sucession,
absence must be at least 10 years. Exception to
the exception: unless the person who
disappears was at least 75 yrs. old.
(2) Instead of 7 years, there are certain
circumstance where period of absence is only
4yrs. (i) goes to war, and has not returned after
war ended; (ii) there was earthquake, plane
crash, etc.;
(3) with regard to marriage, it can also 4 yrs.
Under circumstances mentioned above (war,
earthquake, etc.), presumptive death of 2 yrs.
for purpose of remarriage.
Absence in settlement of estate – estate exists
only when someone died. Death can either be
factual or presumptive.
iv. Paragraph “aa” (Cohabitation). When a man and
a woman deports themselves as Husband &
wife, it is presumed that they entered into a
lawful marriage, That is disputable
presumption.
v. Paragraph “bb” Whether capable of getting
married means effort are undertaken jointly
vi. Paragraph “jj” (Survivorship rule). Who survives
when two persons alleged to have died together
(matter of minutes, hour, etc.) Presumption
provided by the Rules, ex. Male survived over
females.
In legitimacy – no presumtpion, one who claims
the legitimacy or illegitimacy has the burden of
proof.
RULE
132
Three Parts
1. Presentation of Evidence (Sections 1-18)
2. Proof and Authentication (Sections 19-33)
3. Offer and Objection (Sections 34-40)
Salient Doctrines
1st part
• When you present evidence, must be in open court.
Under the Constitution, a party is entitled to a public,
impartial and speedy trial. Public means open court --
-- testimony and gathering of evidence must be in
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 open court. Opposite: in-chamber. Exception and in-
chamber usually when it is a crucial case or involved
privileged communication. Ex. Support, annulment,
rape case, etc.
• All trials/proceedings must be recorded. All courts
now are “courts of record. There is official recorder
(stenographer). The recordings is called the Transcript
of Stenographic Notes “TSN”. Under the rule, TSN is
prima facie correct.
Brondial note: For more than 30 yrs., I have never
found a TSN without an error. Before you proceed with
the next hearing, go over the TSN because errors may
be fatal.
• Manifest before the court, if you found
error in the TSN. Ex., there is error in parag. # xx
page xx, so on and so forth (isa-isahin mo!).
Sometimes, error is very substantial/fatal, in fact
if you ask for correction, other party will not
agree. What will you do? Recall. If trial is not yet
ended, you can ask for continuation of
direct/cross examination. You think of ways how
to correct the error.
Note: Tie this up with Appeal. If appeal with the
Appellate Court, record must be complete. What
if record is incomplete? Inform the court so that it
will be completed. Supposed it can no longer be
completed, ex. nasunog, you should file a Petition
for Reconstitution of Judicial Records. Otherwise,
appeal cannot be done. Remember that the
requirements for Appeal are complete records
and attachments of certified true copy of
judgment.
• In the course of presentation of witness, you
should respect him/her as individual with
constitutional rights. You should not keep him
longer as she is supposed to. Do not ask him
question that are irrelevant.
In criminal case, one of the rights of the accused
is the right against self-incrimination. It can be
invoked anytime before or during the time of
testimony.
• Order of Presentation of Evidence is difference
from Order of Trial. Under Rule 132, you have the
order of presentation of evidence as against the
order of trial under Rule 30 (Trial). In the latter,
you start with the Plaintiff, Defendant, Co-
defendant, 3th Party, etc. and the last to present
is the Intervenor (if there is any).
Under Rule 132, when Plaintiff presents, what
should be the order?
a) Direct exam
b) Cross-exam
c) Re-direct
d) Re-cross
• In Rule 23, we discussed about Depositions. This is the
same in giving testimony in open court. Ang mahirap
sa depositions, ung written interrogatories, you
should prepare it ahead of the examination
(questions on direct exam, cross, etc.). You prepare it
even without answer yet kya mahirap.
• Trial proper starts with Direct Exam of Evidence in
Chief – not limited only to principal witness. In direct
exam, there are prohibited modes.
i. Leading questions – those which suggest the
answer. Generally, questions answerable by yes
or no are leading questions.
You have to distinguish that from
misleading question – those that assume a
fact to have been testified when in truth it
has not been or assumed a fact different
from that which has been testified to.
Misleading questions are not allowed. But
there are lawyers who ask misleading
questions purposely e.g., to find out
whether adverse party is paying attention
to what is going on (kung
natutulog/tatanga-tanga and kalaban
ppasok ang question mo).
Nowadays, judicial affidavit (JA) is being
used, but with more reason that you should
examine the JA. Under JA rule, there may be
a lot of leading and misleading questions.
Remember that it is direct exam, leading
questions are not allowed. As adverse
party, you should bother to examine
because most of the questions in the JA is
answerable by yes or no.
• If you go immediately to cross exam, all the leading
questions there are deemed waived. So even before
you undertake the cross, you should made the proper
manifestation, Your honor, I object to the following
questions… xxxx”. I moved to strike out the following
questions #1, # 3, xxx for being leading questions.
Supposed the court said it remains, what will happen
if you cross exam? You put on record that you object
in not striking out the question for being a leading
question.
• Leading questions are allowed in certain
circumstances under the rule:
1. Preliminary question – you call the witness. Say:
Mr. W are you the Plaintiff in this case.
(Preparatory only and that is allowed. Laying the
predicate yet).
2. Child witness – child must be lead. They are
presumed to be truthful or not yet capable of
telling lies.
3. Adverse witness (kalaban). You don’t have to lay
predicate because it is of record. Ex. Defendant -
you never find cooperation with that kind of
witness.
4. Hostile/Unwilling Witness – Remember when
you witness is hostile or unwilling, you have to
qualify it. You lay the basis, otherwise you can ask
leading questions.
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Ex. Counsel: Mr. X, I am calling him as hostile
witness.
Judge: Why counsel?
Counsel: The record will show the three (3)
subpoena ad testificandum were issued to
this witness but never complied.
Judge: Why is he here now?
Counsel: I moved for the issuance of warrant
How can you expect him to cooperate?
That is why you have to qualify for you
to ask leading questions.
5. Cross examination – you go over or cross-over
the bridge. You can never expect cooperation
against the adverse party that is why leading
questions are allowed.
• Incidentally, you can never impeach your own
witness, you should not unless
hostile/adverse/unwilling. If it is the witness of the
other, then on cross exam , you can impeach the
testimony.
3 Ways to Impeach (Testimony Adverse)
1. Contradictory evidence
2. Contrary statement in some other forums or other
occasions
3. Impeaching character/reputation – dangerous! Why?
Because you might go to character evidence and
character evidence is inadmissible. You have to clearly
lay down that his honesty and integrity is
questionable. You must have basis in the course of
exam.
Section 4, Rule 23 (Use of Depositions) already give
example in impeaching witness through contradictory
evidence. Any depositions can be used to impeach the
testimony of a deponent, i.e., by showing the
deponent that his statement in deposition is
contradictory against his testimony in court.
Ex. Former statements – witness now testifying that
he saw the accused, In fact, the prosecution asked
him to describe the accused. The witness described
the accused something like this, “fair complexion,
wearing white tshirt, etc. xxx”. In order to impeach
him, you confront him with his Sinumpaang Salaysay
before the precint, he stated there, “how can I
describe the accused when I did not see him clearly”.
The foregoing are contrary statements. That is how t
impeach.
Do not confuse that with Sec. 29 (Impeachment of
Judicial Records). How to impeach?
(i) Lack of jurisdiction;
(ii) (ii) Collusion; and
(iii) (iii) Fraud
Sec. 16 Memorandum
There are two principles here:
1. Present Memory revived
2. Past Recollection recorded
As a basis: remember that you can only
testify on something that your personally
know. While testifying dapat wala ka
kodigo. You tell what you actually saw,
heared, etc. You are not allowed to read.
• What is present memory revived? –
With leave of court, Counsel can ask the
court to allow you to revive your
memory. If ever there are notes/writing
that will refresh your memory so that
you can correctly state the truth, court
may or may not allow that.
Ex. on you way home, you saw a man
clubbed by the robbers 10-m away from
your residence. You look over, he was being
attended to, you saw two wounds from his
body, blood oozing and about to die. When
you arrived home, you are fond of writing
diaries as to what transpired for the day.
You wrote there what you witness. Then
you called in a witness stand, and ask about
what you saw, you said it was already more
than 2 yrs. ago and you cannot recall.
Counsel will ask the court to invoke present
memory revived. If allowed, you can go
over you diary and then testify.
Limitations: After testifying, you cannot
moved that diary be marked as
documentary evidence because the
purpose of diary is only to refresh --- cannot
be corroborative evidence.
• Past recollection Recorded – witness
has no recollection whatsoever to what
transpired. It can only testify based on
the record/memorandum. You can have
memorandum mark in evidence unlike
the present memory revived.
Ex. One who is conducting autopsy in
medico-legal cases. Supposed on the
witness stand the doctor said, he is
conducting 3 autopsy a day.
Counsel: Do you recall conducting Cadaver
X?
Doctor: Yes
Counsel: What is the result?
Doctor: Let me refer now to my
memorandum.
Cadaver X - 3 gunshot wounds; one
was fatal and which pierce his
heart, went out, trajectory, etc.
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The doctor has absolutely no recollection
unless with the memorandum. Counsel will
move that the report/memo be marked in
evidence as Exhibit “L” for instance.
(Brondial: Referring to above, the possibility
of being asked is minimal)
• Doctrine of Incomplete Testimony
How is testimonial evidence completed?
When all parties are given opportunity
as provided for by the rules. Meaning to
say, direct, cross, re-direct, etc. If you
forgot something, then your remedy is
(i) recall of the witness (not a matter of
right); or (ii) additional direct, cross,
redirect. Unless it is completed,
testimony is incomplete.
Is incomplete testimony admissible to
the point that it will be used as the basis
for judgment/decision?
Answer: You have to qualify as to who
cause the incompleteness of the
testimony. If cause by the party, then it
will be disadvantageous to him.
Ex. During direct examination the
counsel has completed it saying, I have
completed the direct testimony. Next
cross. The lawyer said, I have another
hearing. I moved for continuance. The
Court granted and the hearing was reset
2 weeks from said date. On the day set,
the witness died.
What happens to the incomplete
testimony? Will it form part of the
record? YES! The cause of the
incompleteness is the Defense and the
witness is for the Plaintiff. Whoever
cause the incompleteness will be to his
disadvantage.
Other side: I am undertaking a direct
exam. Then after my direct, the Court
said, “Ok counsel, cross”. Then the
direct examiner (Plaintiff this time)
moved for continuance. Court reset two
weeks after. When witness died on the
day, direct exam will not be considered
as part of the record because the cause
of the incompleteness is the Plaintiff.
That is the doctrine of incomplete
testimony.
Proof and Authentication
Partly discussed under the definition of
Evidence – means sanctioned by the rule
ascertaining in a judicial proceeding the
truth respecting a matter of fact. This
portion of the rule refers to the word in
the definition “ascertaining” which is
actually authenticating or making sure
that it is the real thing.
Under this Section (beginning with Rule 19 of Rule
132), there are two kinds of documents:
1. Public documents – rule does not define but
enumerate only
Ex. public records kept in the agency or the office,
of private writings
(see enumerations in Sec. 19; Rule 132)
2. Private documents – all other writing are private.
Ex. Marriage contract – private writing not a public
document. If you file a Petition for Nullity, marriage
contract is needed. You should get from NSO, it
must be authenticated. You get public record pf
private writing. So that, when you present that, you
don’t have to call as witness the priest who
solemnized because if from NSO, it is already
authenticated.
Documents acknowledge before a notary public
(not a simple jurat). No need to be authenticated if
there is acknowledgment.
Ancient document Rule – don’t need
authentication. Requirements: (i) any document
more than 30 yrs. old. (ii) not only the age but it is
required that document must be found where it
should supposed to be found; (iii) no alterations;
and (iv) no circumstances of suspicions.
Offer and Objection
• Discussed on the definition of evidence, “the truth
respecting a matter of fact”
• How do you offer? It depends.
1. Testimonial evidence – make the offer even
before the witness says his 1st testimonial word.
Offer must be brief but complete.
2. Documents and Real Evidence – offer before
you rest your case.
Incidentally, formal offer of evidence as a general
rule must be oral. Formal offer in writing is the
“exception” but it should be orally done. If you are
going to offer few documents (ex. 10 only), do it, be
ready! Ung ibang judges very strict after presenting
last witness, will direct to do formal offer of
evidence. Be ready that when you present your last
witness, make now the formal offer. It must be oral
(general rule), exception and “in writing” especially
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the document that you are going to formally offer
consist of volumes.
Objection.
• How do you interpose objection? You interpose
objection in the course of the offer, not in the
course of authentication. Remember that
authentication consist of three (3) parts: (i)
marking; (ii) identification during the
pretrial/preliminary conference; (iii)
authentication proper in the course of trial.
You should not make any objection
there,that will be premature.
The time to object should be at the time of
offer.
• When do you object in the course of the trial?
During testimonial evidence. This is what you
call oral objection which must be ruled upon
immediately by the court. Pag pinalampas mo
yan during trial, there is a waiver. So right there
in there, you object.
What are the kinds of objection?
1. Substantial Objection – violative of the best
evidence rule, parole evidence.
2. Formal Objection – ex. objection to leading
question which goes to form only
3. Both formal and substantial
Other objections:
Broad side objection – general objection
that you do not state anymore the grounds
because it is understood usually in the
ground of irrelevancy and competency of
evidence.
Continuing objection – you objected to the
line of questioning but yet the proponent
continues the same way of asking
questions. SO instead of always standing up
and making objection, you make a
manifestation of continuing objection so
that it will be properly recorded.
Tender of excluded evidence
Asked in the bar: What is proffer of
evidence? To what kind of evidence does
this apply? To all kind whether testimonial.
Ex. My next witness is Mr. X. After he took
the witness stand, the adverse party stood
up. Your honor, he does not want to take
the oath. Court: Please step down, you
cannot testify.
You can now make a proffer of proof.
What do you do now? Your Honor, if Mr. X
is allowed to testify, he would have
establish the following: (enumerate
1..2..xx)
Supposed documentary evidence. Exhibit A,
B, C (all the rest not admitted) Say: You put
it now in writing. Attach it and submit a
tender of excluded evidence.
What is the purpose? In case of appeal,
those evidence not admitted may be
appreciated by the appellate court
especially if important/crucial.
Weight and Sufficiency of Evidence
Premise: admissibility vs. credibility. It is
two different thing
• Admissibility of evidence – matter of law.
• Weight and sufficiency/credibility – matter
of perception/judicial evaluation.
Weight – quantum of evidence defends on
the following kinds of evidence
1. Overwhelming evidence – highest; any
evidence which is beyond controversy;
conclusive; cannot be controverted
2. Proof beyond reasonable doubt –
(applies in criminal cases) the quantum
of evidence which produces in an
unprejudiced mind a conviction of
truth. You are convince that something
really happens. It may be doubtful but
to an unprejudiced mind, it produces
conviction. No absolute certainty,
moral certainty or a mind that is
impartial. No remorse of conscience. If
you doubt, you acquit.
3. Clear and convincing evidence –
quantum of evidence lower than proof
beyond reasonable doubt but higher
than preponderance of evidence (used
in (i) labor cases; (ii) establish forgery;
(iii) overturn disputable presumption;
(iv) when the accused interposed
affirmative defenses)
4. Preponderance of evidence – (applies
in civil cases) more weighty/heavy than
the other.
Equiposed Doctrine – evidence for
both parties are on equilibrium.
How do you determine which is
heavier? Ans. Not only by number
because even if only one but it can
convict. There are lot of
considerations.
5. Substantial evidence – quantum of
evidence required only in
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 administrative cases; lower than
preponderance
6. Probable cause – quantum of evidence
consisting of several facts and
circumstances known to the person to
arrive at the probability that the person
charged is probably guilty thereof
(hindi impossibility). Used in
(i) preliminary investigation; and (ii)
preliminary examination (issuance of
warrant of arrest)
7. Prima Facie evidence – quantum which
becomes conclusive; not controverted
8. Iota of Evidence – cannot convict. Must
be understood with circumstantial
evidence – consist of several
facts/circumstances in order for it to
convict, there must be more than one
circumstances; and it should be
brought together to lead a conclusion.
Disqualifications
Rule 130, Section 20
Rule 130 - Bulk/meat/substance of evidence
Qualifications of a witness may be summarized in the following
(coded in “one who can perceive and perceiving, can make known
his perception”)
-ability to observe
-ability to recall or remember what you have observed
-ability to communicate
Disqualifications
1. The immature person - one who is mentally challenged
(mental sanity according to the Rule)
Children are deemed to be immature, but for purposes of the
evidence, under the present dispensation, children, now, are
deemed competent. They are PRESUMED competent, so that
if a question on competency of a witness child is raised, the
Court has the obligation to undertake COMPETENCY TEST.
COMPETENCY TEST must be undertaken in the presence of
the judge. This is in connection with the rule on the
examination of Child Witness. It was previously emphasized
the SEXUAL ABUSE SHIELD RULE and the section 6 of the
competency test
2. Section 22 - MARITAL DISQUALIFICATION RULE (BAR
MATTER)
WHENEVER this disqualification is raised, the confusion
lies on distinguishing this disqualification from MARITAL
PRIVILEGED COMMUNICATION RULE, which is another
disqualification. So at the outset, you must know the
distinction between MDR from the MPCR. To underscore
the distinctions, emphasize on the word PRIVILEGED.
MARITAL DISQUALIFICATION MARITAL PRIVILEGED
RULE COMMUNICATION RULE
(MDR) (MPCR)
APPLICABILITY
only during the existence of 1. Husband and wife -
the marriage continues even if the
marriage has been
dissolved
GR: Marital Disqualification
XPN:
1. If husband and wife have no commonality of interest
• Alvarez vs. Ramirez - being separated-in-
fact, there is no commonality of interest to
protect marital rights
• People vs. Judge Castaneda - subject matter
is conjugal property, when the husband
falsify the signature of the wife, he is doing
it against the wife
2. Great temptation to PERJURY
BAR MATTER: based on Alvarez vs. Ramirez case (2005
or 2006 BAR)
Q: Why does the MARITAL PRIVILEGED
COMMUNICATION RULE disqualification subsist even
after the marriage has been dissolved?
A: It is because the knowledge of the spouse, which may
have been gotten during the marriage being privileged,
remains to be protected. It is not anymore the marriage,
itself, which is to be protected, but rather the privileged
communication.
Unlike in MDR, after the marriage has been dissolved, the
disqualification no longer exists.
Alvarez vs. Ramirez
A case between husband and wife, who were separated-
in-fact. The wife left the conjugal home and live with her
sister. One day, the house of the wife’s sister got burned
and the suspect, and in fact the one who was charged,
was the husband. In the course of the proceeding, when
he was charged for arson, the estranged wife was called
upon to testify. The adverse party objected to the
testimony of the wife on the ground of MARITAL
DISQUALIFICATION RULE and this was sustained until it
was brought up to the Supreme Court.
ISSUE: Is the Marital Disqualification Rule applicable in
this instance?
HELD: No. The wife is no longer disqualified. She could
testify. Since the marriage is not dissolve for only being
separated-in-fact, the Marital Disqualification Rule,
according to the SC, will not apply in this case for the
commonality of interest between the husband and the
wife no longer holds.
One of the purposes why the husband or wife is
disqualified to testify during the marriage is because of
the (1) common interest to protect their marital rights.
In this case, being separated-in-fact, there is no more
marital rights to be protected.
Another purpose of the disqualification of a spouse to
testify against or in favor of the other spouse is because
it is a (2) great temptation for PERJURY. However, in this
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 case, said ground will not hold because there is no
temptation for perjury, since there is no more marital
rights to be protected.
People vs. Judge Castaneda
The husband sold a parcel of land, which is a conjugal
property, but the marital conformity, which should be
signed by his wife, was instead signed by him without
knowledge and consent of the wife. During the charge of
falsification, the wife was called to take the witness’
stand to testify. The adverse party objected. This is
violative of the marital disqualification rule. But Judge
Castaneda sustained that.
Was there a marriage in this case? Yes, there was no
intent to severe marital ties. Clearly, the MDR applies
except if there is a civil case by one against the other.
Here, it is a criminal case. It is neither a case filed by a
spouse against the other spouse. But using the doctrine
held in Alvarez vs. Ramirez, there is no longer a
commonality of interest.
Considering that this is a conjugal property, when the
husband falsify the signature of the wife, he is doing it
against the wife. Even if there is no actual case against
the wife, the disqualification will no longer hold because
what the husband done is against the interest of the wife.
And the possibility of perjury is quite nil here.
Q: There are multiple rape cases wherein the victim was
the daughter of a woman and the accused is the father of
the daughter. Can the wife testify against the husband
who rape their daughter?
A: Jurisprudence provides that a crime or offense
committed against the daughter is, in effect, a crime
against the mother. Note that this is not limited to rape
cases.
A communication being privileged means that it was never
intended to be known by others.
Q: Supposed one night, a family had a dinner. The husband and
wife were communicating with each other in the presence of the
children. Suppose, conjecturally, a case arose regarding husband
and wife where one may be asked to testify about what they have
discussed during that dinner time, in the presence of the children.
Will the disqualification apply?
A: Yes. That is still privileged even if the children are around,
because the children belong to the family. It is still considered
privileged.
Q: Supposed other people are present. Example: In a party, a wife,
while having conversations with other wives, said that her
husband is a womanizer. Is that considered a privileged
communication?
A: No because IT IS NEVER INTENDED TO BE PRIVATE.
PRIVILEGED COMMUNICATION
1. Husband and Wife - already discussed in the distinction
between Marital Disqualification Rule and Marital
Privileged Communication Rule.
2. Lawyer and Client
• Q: Who is being protected here? Client
• Q: Who is disqualified? Lawyer
• Rationale: To protect the legal profession,
because when a client goes to the office and
confides matters that should not be divulged to
the public.
• Tie this with the sub judice rule (also a
protective mantle)
• The Privileged Communication is only on
MATTERS which is the subject of the lawyer-
client relationship.
• Client went to a lawyer for consultation on
annulment of marriage. After narrating what
happened with the marriage, the conversation
somehow went to farming. Is that still covered
by privileged communication?
A: It is not covered for not being a subject
matter for which the client came to the
lawyer for.
• NOTE: Lawyer-Client relationship is not limited
to the lawyer alone but also to the STAFFS in
the law office (ex: Secretary), unlike the
secretary in a doctor-client relationship
wherein (1) secretaries are mostly away with
the conversation, (2) the medical terms are not
of common knowledge to them.
• If the communication between lawyer and
client is for the purpose of attempting to
commit a crime, that is no longer a privileged
communication. (Paredes case)
3. Doctor - Patient Relationship
• No prohibition of the privileged communication
between doctor and patient IN CRIMINAL
CASES, only in CIVIL CASES.
• If privileged communication can be invoked in
criminal cases and doctor cannot testify, it may
be a source of criminal attempts.
4. Priest/Minister - Penitent
• Minister covers any kind of religion, there is
always a fiduciary relationship, a relationship of
trust and confidence between the minister and
penitent.
• As long as the matters given by the penitent in
confidence is in relation to religious matters.
5. Public Officer
• The relationship to which the privileged is
attached is on custody of public documents or
conversations/communications which are
privileged.
• Executive privilege simply means that the
President of the Philippines cannot be called
into a congressional hearing. It is absolute and
extends to the alter-egos of the President.
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 In the case of Almonte vs. Vasquez, Gen.
Almonte, who became the head of EIIB, was
asked to divulge certain matters which were of
national interest. But he said he cannot divulge
said matters because it borders on national
security. From the doctrine held in this case,
national security, diplomatic matters, and those
which will involve national safety and security
are now privileged.
Until Executive Order (EO) 464, which is the
subject matter of the case of Senate of the
Philippines vs. Ermita, assailing to impune,
declare, to cause the declaration of EO 464 as
unconstitutional. EO 464 states that the
following officers cannot testify in a
congressional hearings without the consent of
the President of the Philippines, i.e. Executive
Department heads and General and Flag
Officers in the Armed Forces of the Philippines,
and those under them, which may be
determined by the flag officers, among others.
The Supreme Court held that it is a balancing
matter regarding the constitutional right to
information as against national security,
national safety, of national interest, which
should be privileged. There must be a balancing
factor. The Supreme Court declared certain
parts of the said EO unconstitutional because it
encroaches upon the power of Congress to
conduct investigation IN AID OF LEGISLATION.
6. Sy Hun Liong vs. Rivera (2015) - The privileged
communication extends to employer-employee
relationship if the communication is in the performance
of one’s duty by the employee to the employer or by the
employer to the employee.
7. Dead Man’s Statute
• 4 requirements in order for the Dead Man’s
Statute to apply (Sec. 23 in Rule 130)
i. The person disqualified to testify:
Plaintiff or assignor of Plaintiff;
ii. Action is against whom: Against the
executor or administrator of the
estate;
iii. Subject-matter of the action: On claims
against the estate; and
iv. Testimony refers to: Matters
communicated to the other before the
death of the party [or which happened
ante lite motam (before the
occurrence of death of the deceased)]
• If the case is against the executor or the
administrator of the estate, it would not be a
claim against the estate.
It is conflicting as to what have been studied
regarding Rule 86 in relation to Rule 87.
What are claimable against the estate? Sec. 5 of
Rule 86 limits the claims against the estate to
the following: (1) Judgment for money, (2)
funeral expenses, (3) expenses for the last
illness, and (4) money claims. However, Sec. 1 of
Rule 87 states that other claims must be filed
against the executor or administrator of the
estate.
But if you go through Sec. 23 of Rule 130, the 2nd
and 3rd requirements appear to be conflicting.
Why? It is because the 2nd requirement said the
“claim against the executor or administrator of
the estate” and the 3rd requirement said it must
be a “claim against the estate”.
How to construe the contradicting
requirements? The word “claim against the
estate” must be correctly construed not under
Rule 86. In other words, the liability is not
personal to the executor or administrator but,
rather, it is chargeable to the estate. Therefore,
you file it against the executor or administrator
of the estate.
The rationale behind the Dead Man’s Statute:
It is to avoid the temptation of perjury because
a dead man cannot rebut assertions of others.
Accordingly, when nature or death closes the
lips of one party, the law must close the lips of
the other party as well, so the playing field is
leveled.
In the case of Sunga Chan vs. Chan, the plaintiff
filed a case against the executor or
administrator. But the executor or
administrator, in answering the complaint, set
up a counterclaim. When the plaintiff took the
witness’s stand, the executor or administrator
invoke the Dead Man’s Statute. The Supreme
Court said that the Deadman’s Statute will no
longer apply because it is the executor now, as
far as the counterclaim is concerned, is the
plaintiff. So, it removes from the mantle of the
Deadman’s Statute. (1st requirement missing)
It is clarified further in the case of E. Razon vs.
IAC. In this case, the father of Vicente Chuidian
owns certain shares of stocks in E. Razon and
Vicente Chuidian is the administrator of the
estate of his father. E. Razon who filed a claim.
Accordingly, Vicente Chuidian was sought to be
disqualified on the ground of the testimony
(allegedly based on the Dead Man’s Statute).
The Supreme Court said that the Dead Man’s
Statute will no longer apply here because it was
Vicente Chuidian, representing the estate,
which has the claim against E. Razon. So the
application of the requirements will not apply,
as well.
8. Parental - Filial Privilege
• This is actually not a disqualification because the
formulation of the Rule says, the child or the
Page 84 of 95
 parent CANNOT BE COMPELLED TO TESTIFY Because if it is within the time frame of custodial
against the other. interrogation, it is ABSOLUTE that the
• The child can testify against the parent or the confessant needs and independent and
parent can testify against the child. But if they competent counsel.
don’t want to, they cannot be compelled. When does the time frame begin? When he is
taken among the many, then, custodial
ADMISSIONS AND CONFESSIONS interrogation starts, not when a person
Admissions were partly discussed in Rule 129, in relation to suspected nor when he is in a line-up. And at
Judicial Admission. What is referred in Sec. 26 onwards are that point in time, he can already invoke his
EXTRAJUDICIAL ADMISSION. right to counsel. If the confession, within the
What is the basic distinction between admission and confession? time frame of custodial interrogation, was
ADMISSION CONFESSION without the aid of counsel, which is
- It is not only a statement INADMISSIBLE.
of a fact but you even c. Must be IN WRITING.
- A statement or move forward than simply
confirmation about a fact stating so. In so stating, If all these things are present, the confession is
- An admission is not you acknowledge your ADMISSIBLE.
necessarily a confession. guilt. NOTE: One thing is the admissibility and another is
- In effect, a confession is the WEIGHT or CREDIBILITY of the confession.
an admission.
ADMISSION
In examining the Rule on Admissions, you read together Sections
CONFESSION
26, 28 and 34 of Rule 130 to have a full appreciation and
It may either be a (1) judicial or (2) extrajudicial.
understand on Rule on Admission. The premise on the Rule on
1. Judicial Confession - the plea of guilty in criminal
Admission is on Sec. 26, which said that the act, declaration, or
procedure
omission of a party is admissible only as to the actor, declarant, or
When an accused enters a plea of guilty in a capital
omitter and to no one else. (RES INTER ALIOS ACTA Rule). This is
offense, the judge is required to do three (3) things:
because human nature tells us that we never accept our fault. We
a. Undertake searching questions to determine
always pass on the blame to others. Even if people were caught,
the voluntariness and comprehension of his
still they try to evade liability or responsibility.
entering the plea of guilty to a capital offense;
RES INTER ALIOS ACTA Rule is found in Sec. 28, which provides
b. Direct the prosecution to present evidence to
that the rights of a party cannot be prejudiced by the act,
still establish the guilt of the accused beyond
declaration, or omission of another.
reasonable doubt; and
XPN of RES INTER ALIOS ACTA Rule:
c. Ask the accused whether he is willing to present
1. When there is conspiracy, which must be established by
countervailing evidence.
acts other than the acts involved in the res inter alios acta
These requisites are important when death penalty is
rule (not by the conspiracy itself).
still in effect.
2. Co-partner or Agent
What are the requirements when an accused enters a
plea of guilty to a lesser offense (less than the capital 3. Privies - There must be privity in relationship, privity in
rights
offense)
4. Admission by Silence
a. Asking the court whether he understands what
XPN to XPN:
he is entering into (Pp vs. Mingote); and
4.1 When the person is under advisement (when he has
b. Asking the prosecution to present evidence not
a lawyer who tells him not to say anything).
for the purpose of establishing the guilt but for
4.2 When he does not understand what is going on; i.e.,
the purpose of determining what penalty to
language barrier
impose.
EFFECT of the XPN to XPN: Said admission by Silence is
2. Extrajudicial Confessions
NOT ADMISSIBLE as to him under legal advisement
Requirements:
a. Establish VOLUNTARINESS
DOCTRINE OF INTERLOCKING CONFESSIONS
- If there is a vice of consent [force,
intimidation (either physical or psychological),
This doctrine talks about several confessants. When there are
undue pressure and influence] established, the
more than one who executed a confession and the allegations in
extrajudicial confession no longer holds, hence,
one are attributable to the other without any collusion between
INADMISSIBLE.
them, the admission in one confession is admissible as to the
others.
b. Needs and independent and competent counsel
if confession was made during a custodial
(END OF TRANSCRIPTION)
interrogation.
Jurisdiction
If there is a confession, is it within the time
frame of custodial interrogation or outside it?

Page 85 of 95
Real Action - action involving title to, possession, or interest over
when? [Titingnan nyo baka may date dun.] There are two
a real property that is 20 based on assessed value or 50 based on,
reckoning period if your going to compute the fifteen day period.
20,000 outside of Metro Manila, 50,000 within Metro Manila, if (1) the notice of the decision; or (2) the notice of the order denying
you exceed then you go with the RTC, if you don’t exceed then you
the motion for reconsideration. Especially if you are requested or
go with the MTC or MCTC as the case may be. asked to compute. And then, try to observe the Fresh Period to
Appeal Rule. So even though you filed a MR on the fifteenth day
Personal Claims - money 300 outside, 400 as far as within Metro and the same has been denied; therefore, in case of denial, still
Manila. Personal, real, and probate proceedings. you have a fresh period of fifteen days.

Except on 2015, the question was Totality Sum of Money. Under Original Jurisdiction
Section. 5, 4th par., Rule 2 on Joinder of Causes of Action.
Original jurisdiction is the power of the court to entertain actual
Why is there an importance to know whether the action or the controversy brought at the first instance. All courts have original
specific place mentioned in the problem. jurisdiction. [Di lang kasama yung Sharia kasi pinaexclude natin
yun. Ang SC meron yan.] Any disposition of these original actions
BAR 2006. Estate of a decedent worth Php 200,000.00 Which is in the form of a judgment or decision. If it is a judgment,
court has jurisdiction? Where is the Venue? Pampanga. therefore, that is appealable. [So if you are asked what is your
basis? Kasi sa lahat ng sasagutin natin dun sa problem dapat
Answer 1. Because it is outside of Metro Manila and it does not meron kang basehan. Bar Examination again as I have been telling
exceed Php 300,000, MTC has jurisdiction. before to my students, is a matter of impression. You need to
impress the examiner that the one writing the answer is already
Answer 2. Rule 73. (1) the actual residence of the decedent at the fit to become a member of the Bar. Kaya iingatan ninyo ang
time of the death; or, (2) if he is outside of the Philippines, where pagsusulat ninyo. Yung presentation. Yung margin. Yung sulat sa
his estate may be found. babae wala tayong problema. Dun sa lalaki may problema. Minsan
all caps pa yan. Hindi pwede po yun. You should know the
There is an amendment in 2016. If we talk of sum of money, paragraphing. Dapat malinis. Even though, your answer is
regularly that is 300,000 if that is outside of Metro Manila; incorrect. If you presented your answer in such a way that would
400,000, if it is within Metro Manila. If you exceed, therefore that sway the mind of the examiner, then you will be given a point. Di
is RTC; if you don’t exceed, therefore that is MTC. ho ako nagbibiro. So again, it is a matter of impression. ]

There is an amendment as far as small claims. Ordinarily, on 2008, Rules of Court

that is only to Php 100,000. Now, it was raised to Php 200,000.
Payment of money or Reinvestment of money for the amount Php I will not discuss the Rules by according to the Rules. I cannot do
200,000; that is, regardless, whether it is within or without Metro that because Bar Examination is a mixture of provisions.
Manila. So that is MTC or MCTC as the case may be.
Rule 1. Distinctions of three actions. Criminal, Civil & Special
The Revised Rules on Small Claims, 2016. Consider also the Venue. Proceedings.
If the defendant is engaged in financial business or lending
business, and he has a branch in another place where the Civil action is an action or a suit filed before the court for the
defendant is residing, then that is the venue. That may be the enforcement and protection of a right, or prevention or redress of
venue of the action. For example, he is residing in Bacolod, and a wrong. Whereas, criminal proceedings is a proceeding whereby
the plaintiff has a branch office in Bacolod, you can file in Bacolod, the State prosecutes a person for acts or omission in violation of
even if your principal office is in Manila. penal laws. Special proceedings is a proceeding in order to
establish a particular fact, status or a right. [Lahat po ng
Delegated Jurisdiction proceedings that need to iestablish a particular fact, status or a
right is a special proceeding.]
In Land Registration or Cadastral cases, originally it is within the
original jurisdiction of the RTC. But the same may be delegated by BAR 2008. Is a petition for presumptive death a special proceeding.
the SC pursuant to its power. Now, what are the instances wherein [1 point. Eh 1 point lang pala yan eh. Bakit babanggitin mo pa?
the MTC or MCTC can exercise delegated jurisdiction over land Lahat ng point sa BAR importante. If your focus now is to get a
registration or cadastral cases? If the amount or the assessed grade of 90 in Remedial Law; one thing, I can tell you, you will be
value of the property does not exceed one hundred thousand a lawyer next year. Would that be impossible? The answer is No.
(Php100,000) or it is uncontested. Which court has jurisdiction? It is up to you. So your mind setting now is not only to pass or get
Therefore, the MTC. The one hundred thousand (Php100,000) is a grade of seventy five. If you fall short, then you fail. Wag mo na
based either on the Tax Declaration or the Affidavit of the owner ipagyayabang sa katabi mo na magaling ka, 90 ka, hindi, within
or the claimant. In case of adverse decision in land registration yourself. And, that is my focus 90. When I was reviewing like you
delegated by the MTC, what is the remedy? Appeal. Where would before, I had the difficulty of papano ba to ang hirap intindihin,
you appeal? CA. [So how would you argue why appeal to the CA is and then your Rules of Court, hindi ka pa nakakatatlong Rules,
the proper remedy] Because the MTC in entertaining the land tulog ka na. Ang gagawin mo tatayo ka, magyoyosi ka, ibibitin mo
registration and cadastral, is assuming the jurisdiction of the RTC. yung ulo mo sa kama. Magyoyosi ka. Iinom ka. Manunuod ka.
So therefore, the appeal would be under Rule 41. That is by way Makakatulog ka. Lalo na sa Modes of Discoveries. Tama, mali? Lalo
of Notice of Appeal within fifteen days. So fifteen days from na dun sa Special Proceedings. Paglumagpas na ng 77; except 86
Page 86 of 95
and 87, tulog ka na. Diba? Kasi boring yun. Now you have to know Pagtinanong sa Inyo yun. Wag nyo ilalagay ang res judicata.
it by heart. And, you should know how to correlate one provision Because there are two aspects of res judicata: (1) One is barred by
to the other. Otherwise, you will get lost.] prior judgment. (2) The other one is conclusiveness of judgment.
What is stated there is only barred by prior judgment; never the
Duon sa distinctions. May parties in civil actions. There are two conclusiveness. So If you answer the question, yun and magiging
parties involved. Plaintiff, defendant. And then, in criminal, it basehan mo. Papano mangyayari yun? Problem. Nagdalawang
depends. If the case is already filed before the court, we have the kaso, pending yung isa, nag file uli inisplit nya. Ano ang inyong
plaintiff, or the State, or the accused. If it is for purposes of remedyo? O ang tanong ay, the Court immediately dismissed the
preliminary investigation, you have two parties there. One is the case outright. Is the dismissal of the court valid? Diba? Can there
complainant. The other one is the respondent. Now, in special be motu proprio dismissal? The answer is Yes. Because litis
proceedings, it is as a general rule, non-adversarial; except, when pendencia and barred by prior judgment is a ground for motu
there is an oppositor to your petition. proprio dismissal under Sec. 1 of Rule 9. Tingnan nyo po yun.
Markahan nyo yun. So that is, splitting of causes of action.
So, how do you commence a civil action? In three ways, (1) one is
by complaint. (2) The other one is by way of a petition. (3) The Joinder of Causes of Action.
other one is by way of a verified statement of claims, in case of
small claims. Criminal, how do you commence? You can read it Actually, tinanong yung last paragraph; yung Totality Rule. If you
under Sec. 1 of Rule 110. By way of complaint, affidavit complaint, joined a cause of action which means you are complying with the
if there is a necessity of preliminary investigation; or criminal provisions under Sec. 5 of Rule 2. It must comply with the Rules on
complaint directly filed with the court the MTC or MCTC; and then joinder of parties. Yung second is important. It must not include
we have the criminal information. In special proceedings, that is or involve special civil actions or actions governed by special rules.
by way of petition. So pagtiningnan mo dun sa problem. Isa dun ay special civil action.
Then there can be no joinder of causes of action. A sum of money
Now in civil. What is the basis of civil action? That is based on a cannot be joined with foreclosure; because that is a special civil
cause of action. In criminal, the acts or omission in violation of action. Tinanong na po yung 2nd paragraph sa BAR exam. Nilagyan
penal laws. In special proceeding, the particular fact, status or ka ng set of causes of action; jinojoin in one complaint; tama ba
right that is sought to be established. [Kasi may examiner na yun? How would you answer the question? You are going to
nagbibigay ng tanong, ayaw ipasagot yung tanong. Last year, diba discuss all the requisites. Hindi mo na kailangan discuss yun. I
may tanong. Anu nga bang tanong dyan. Jason clause. Hindi mo discuss mo lang yung 2nd paragraph. Under the 2nd paragraph of
makikita yun, unless yung reviewer binangit sa inyo. What is Sec. 5 of Rule 2, it is expressly stated that it must not involve
Defasage in civil law. Mahirap tingnan. Diba? Mahirap intindihin. special civil actions or actions governed by special rules. Since the
Saan mo kukunin, unless nakita mo yung nabasa mo yun sa isang foreclosure proceedings is a special civil action that is prohibited;
book. Diba? Pasensya na kayo, wala na akong boses. Kasi nagklase therefore, that is, not allowed. So may basis ka na. Sinagot mo ng
ako kanina. Mula 10 hanggang 3. So wala akong boses. Pasensya diretso. Wala ka nang problema. Maigsi.
na kayo.]
Do not answer the question more than one page.
Rule 2. [Dalawa ang titingnan nyo dyan. One is splitting causes of
action. One cause of action divided into several action that is what What is the distinction of lack of cause of action and failure to
we call splitting and that is not allowed. What are the effects of state a cause of action? There are two different things.
this splitting of causes of action? It may result to litis pendencia.
When a case was filed either simultaneously or successively, when If we talk of failure to state a cause of action that is a ground for a
one case is still pending; therefore, that is litis pendencia right? Or, motion to dismiss under Rule 16., Section 1.
when one of the cases is already decided with finality. That is
barred by prior judgment. Diba? So, abangan nyo po yun. Paano If it is based on lack of cause of action, that is a ground for
tinatanong yun sa BAR? In the form of a problem. Take for demurrer to evidence under Rule 33, Section 1.
example you are, naguupa ka ng bahay. Meron, ikaw ay umuupa.
Pero, ang naniningil dalawa. Hindi ka nabayad ng upa. Para Lack of cause of action is different from failure to state a cause of
perwisyohin ka ng mayari. Nagfile ng sum of money. Nagfile ng action.
ejectment. Bawal po yun. Isa lang dapat. Because there is only one
cause of action splitting to two. That is not allowed. Now my If we talk of failure to state a cause of action, therefore, the
question is? Can there be a motu proprio dismissal of an action allegations in the complaint or in the pleading, no cause of action
based on splitting of causes of action. Diba? That is a possible or insufficient.
question. Either direct question or in the form of a problem.
Pwede ba? The answer is Yes. If that is based on litis pendencia, or If the motion to dismiss is denied based on failure to state a cause
barred by prior judgment, anu ang magiging basis mo sa of action, what is your remedy? In case of denial of the motion to
pagdiscuss ng sagot mo? You have Sec. 1 of Rule 9. Pagtinanong dismiss, what would be your remedy? File responsive pleading.
ang motu proprio dismissal. There are four grounds available Based not only on the provisions of Rule 11 but based also on
there. (1) Lack of jurisdiction over the subject matter of the action. existing jurisprudence. If you will encounter the same again in the
(2) The other one is litis pendencia, (3) barred by prior judgment. form of a problem. File the responsive pleading or the answer
(4) And, therefore, the other one is prescription. within the balance in which the defendant is entitled to but in no
case less than five days. Raise the ground of the motion to dismiss
as an affirmative defense. Proceed with the trial. In case of
Page 87 of 95
adverse decision, you appeal and assign the denial as one of the Alternative defendants. If the plaintiff is not sure as to who among
errors unless the denial is tainted with grave abuse of discretion the defendants will be liable, he may implead all the defendants.
amounting to lack or in excess of jurisdiction, then petition for A as against B, C, D, and E.
certiorari is a remedy under Rule 65. With that kind of framing of
the answer, then out of five or out of three, you will get three. Do Sec. 12. Class Suit. The most important element of class suit is the
not settle for less. Make sure your answer will impress the first paragraph. That the subject of the case is of common or
examiner. The one who will read your answer must be satisfied general interest.
not you always.
Yung daanan sa may Laguna sinarado. Nagkaroon ng excavation.
If the demurrer to evidence is denied, therefore, your remedy is
Walang makanaan ngayon. So hindi ka makakadaan pababa ng
defendant may present evidence. If based on failure to state a
Maynila. Yung mag Barangay dun hindi makadaan. So what they
cause of action, the motion to dismiss is granted, what is your
did is to file an action before the court. Then the barangays, yung
remedy on the part of the plaintiff? Failure to state a cause of
adjoining barangays nagfile din, nag intervene. Is the class suit
action, that is without prejudice. Can you amend? Two remedies.
proper? Yes, because the subject matter of the action is common
(1) Refile Sec. 5, Rule 16 except FHI which will bar the refiling of
of all the parties who are numerous and impracticable to bring
the action; all other grounds is without prejudice; (2) Amend in
them all to court. What is there common general interest? Their
order to state a cause of action. You can amend even if there is an
right to passage on the highway is impaired. In class suit, the
order of dismissal provided that is not yet final and executory. If it
elements will not be asked. You should know the elements to be
is after, therefore, you cannot amend anymore. Why? Because the
applied in the problem. That the subject involves common or
case has already been dismissed with finality. general interest among many parties who are impracticable to
bring them all before the court and there is a sufficient number in
So amendment is a remedy before the finality of the order of representation of the others who will protect the benefits or rights
dismissal. of the other parties involved.

So if you will be asked in the form of a problem. Look closely Class suit is different from Derivative suit.
whether final or not. If not yet final, two answer. (1) To refile. (2)
Amendment. Why? Because a motion to dismiss is not a A class suit is a form of a representative party. Executor,
responsive pleading. Order of dismissal not yet final, you can administrator, attorney’s in fact and that is also representative.
amend as a matter of right under Sec. 1, Rule 10.
A derivative suit is also a representative party. Minority
For purposes of making a distinction, if the demurrer to evidence stockholders filing an action for and on behalf of the corporation
is granted, therefore, that is a final order. Therefore, appealable. due to their inaction. That is derivative. BAR 2005.
Rule 33 has a connection with Section 1 of Rule 41. Since it is a
final order as provided for under Section 1 of Rule 41, it is What is a citizen’s suit? Rules on Environmental Cases. Can it be
appealable because it is expressly stated there. Judgments, final filed by a foreigner? No, because by express definition given by
orders are all appealable. So you have Rule 33 and Sec 1, Rule 4, the Rules; It is a suit filed by any Filipino citizen for and on behalf
therefore, that is quite convincing. You cannot just say this and of the others generations yet unborn or minor for the protection
that without any basis at all. and enforcement of environmental laws, rules and regulations.

If one of the causes of action falls under the jurisdiction of the RTC,
then that is allowed. If the joint causes of action is to be joined,
consist of sum of money. So 100, 100, 100, etc. The aggregate
amount will be the test of jurisdiction. If that is a sum of money
that is in relation to the provision of BP 129 exclusive of damages,
costs, attorney’s fees and cost of interest. So that provision must
also be correlated with the provision of BP 129, as amended.
RULE 3.
Parties.
Real parties in interest. Who are real parties in interest? In order
to have a complete determination of the case, then action must
be prosecuted or defended in the name of the real parties in
interest.
Make sure the case is filed by or against the real parties in interest.
If he is not real parties in interest, what would be your remedy?
Motion to dismiss based on failure to state a cause of action. So
Sec.2, Rule 2 have correlation with Rule 16, Sec. 1. Failure to state
a cause of action.
Citizen’s suit. Derivative suit. Distinguished. Sec. 3, 12. Death of a
party in a civil action. Sec. 16 has a relation to Sec. 20 and Sec. 1
of Rule 87. In case of death of a party, the counsel within thirty
days must inform the court and shall effect substitution of heirs.
Because the action survives the death of the party. And, one of
which is Sec. 20 of Rule 3. Action that survives the death, action
for the recovery of sum of money arising from contract, express
or implied, after the death of a party shall continue until its final
judgment but the enforcement shall be made on the estate of the
decedent under Rule 86. So all actions for recovery for sum of
money arising from contract, express or implied, if there is death,
there is substitution, the action will survive. There will be
substitution of heirs. How would you claim against the estate? So
you go back to the provision of Rule 86. By simply presenting the
final entry of judgment before the clerk of court. Then the Clerk of
Court will receive it. Copy furnished the executor, administrator
who will be given a chance to file his comment or answer. And,
then it will be submitted to the court for disposition. So if the court
say granted, the order granting the same is again a final order;
therefore, appealable. Sec. 9 or Sec. 13. So Sec. 20 has a relation
to Rule 86. On how to present your claim.
What are the actions that survives the death?
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 action. And, there must be an express provision in the contract.
(1)Sec. 20 of Rule 3. In addition to that, Sec. 1 of Rule 87. RecoveryBut if there is a question as to the contract itself. Its existence, the
of real or personal properties; enforcement of a lien; damages genuineness. If for example the signature there was forged,
arising from the injury, etc. Funeral expenses. So kung finilelan ka ng kaso, then sa venue na nakalagay dun, can you
nakaisolate lang yan, papaano mo sila pagdidikitin? Therefore, enforce the terms of the agreement as to the exclusive venue?
there will be continuity of actions. Yun yung tanong dun eh. NO. Because the doctrine will only apply
(2) if there is a valid binding agreement. Yung isang party sa kasong
yun, nasa Singapore, nagkaroon ng pirma, so there is a forgery in
What is the Constitutional Basis of Indigent Sec. 21? Sec. 11 of Art. the contract, finile ng plaintiff duon sa place nakalagay sa contract.
III. Free access to court. Nagfile ngayon ng motion to dismiss based on improper venue.
hanggang umakyat duon sa Supreme Court. SC held that there
BAR 1991. What is the writ of amparo?(1 point) What is the should be a valid agreement.
Constitutional Basis? (2 points)
Is there a motu proprio dismissal based on improper venue? NO
What is the Constitutional Basis of Writ of Kalikasan? because it is not one of those mentioned Sec. 1, Rule 9. Exception:
(1) Summary (2) Small Claims. Considering the case falls under the
Marami yan. One is Sec. 5, par. 5 of Art. 8. The power to Rules on Summary Proceedings, there is such a thing as motu
promulgate rules. proprio dismissal. Sec. 4, Rules on Summary Proceedings. Sec. 11,
Rules on Small Claims. After the court determines that the case
Habeas corpus is a form of amparo. That is what we call amparo falls under summary or small claims and upon examination of the
libertad. allegations on the complaint and the evidence attached
therewith, the court may immediately dismiss the case based on
Pwede syang lumabas provided meron syang relation sa Syllabus. any of the grounds for the dismissal of the action under the Rules.
Umiksi ng 25 pages yung Syllabus. So therefore that is motu proprio. In addition to Sec. 1, Rule 9,
include (1) summary, and (2) small claims. It will be asked by
RULE 4. VENUE. problem. Hypothetical question.

Venue place where the case shall be instituted, heard and tried. Defendant who is temporarily out of the Philippines. Where is the
Venue is only for purposes of convenience. If the question is venue venue?Where the property is located.
except special proceedings and criminal case. If civil, Real,
personal, mixed. Not in personam, not in rem, not quasi in rem. Rule 5. Wala yan.

Real action. Where the property is located or where any portion RULE 6. PLEADINGS.
thereof is situated. All actions involving title to, possession, or
interest over those enumerated under Art. 415 of the New Civil Sec 12 or Sec. 13. Bringing in of new parties. If the court will
Code. Because there are properties bounded by two cities or determine that there will be no complete relief that will be
municipalities. granted as far as the cross-claim or counterclaim is concerned. The
court may allow the bringing in of new parties.
If it is personal. That is involving privity of contract. Involving
personal properties or damages. Residence of plaintiff or Pleadings. Distinction between permissive and compulsory.
defendant at the option of the plaintiff. Distinguish the principle of recoupment (compulsory) and the
principle of set-off (permissive).
Mixed. No option.
Permissive is initiatory. Compulsory is responsive. Since it is
How would you determine whether the action placed in the initiatory, therefore, it must be verified. In compulsory as a
question is real, personal or mixed? What is mixed? Both, where general rule, need not be verified; except: (1) Summary
the property is located. proceedings, and (2) Small Claims Case.

If you will be the counsel for the defendant, and there is improper Bakit kailangan verified ang compulsory? By express provisions of
venue, what is your remedy? Motion to dismiss based on venue is the Rules. All pleadings must be verified. So considering
improperly laid. Sec. 1, Rule 16. permissive is initiatory, it must contain a certification against
forum shopping. Compulsory, need not.
Then what will be your remedy if the case is dismissed? Refile, Sec.
5. So lahat nang sinabi dun makikita mo except FH&I.If you look at In permissive, being initiatory, it must be answered; otherwise,
FH&I, nandyan ang barred by prior judgment, prescription, paid, there will be declaration of default. In compulsory, as a general
waived or abandoned otherwise extinguish the claim or statute of rule, need not be answered; except, summary proceedings.
fraud, unenforceable. Kasama po dyan ang litis pendencia.
Payment of docket fees. In permissive, required, being initiatory.
What is the doctrine of exclusivity of venue. Jurisprudence 2015. Compulsory, payment of docket fees suspended. Per resolution of
Parang unlawful detainer yung nandun. The doctrine of exclusivity the Supreme Court September 21, 2004. Suspended ang payment
of venue will only apply if there is a valid binding agreement.The ng docket fees sa compulsory counterclaim.
agreement was executed prior to the commencement of the
Page 89 of 95
If you fail to raise the permissive, then it is not barred. Your All pleadings under the Rules on Environmental Cases must be
remedy is to file a separate claim or action. Compulsory not raised verified. So with that if the question goes like this. What are the
barred. pleadings that should be verified? All initiatory. Plus, all responsive
that I have mentioned. In the scale of 1 to 5; you get 5. Again, you
In permissive, it requires the presence of a third person of whom have to impress.
the court will acquire jurisdiction. Compulsory need not.
What are the initiatory pleadings? Original Complaint. Permissive.
What are the pleadings that should be verified? BAR twice. All Compulsory. Cross-claim. Third-Party Complaint. Fourth-Party
initiatory pleadings verified. Complaint. Complaint-In-Intervention. Then we have verified
Statement of Claims. Lahat nang complaint and petitions under
Responsive pleading does it require verification? As a general rule, the Rules on Special Civil Actions. Lahat nang petitions under the
No; except, when the law or the rules otherwise requires. Rules on Special Proceedings. Ilagay mo na rin yung dalawang
special civil actions writ of kalikasan and continuing mandamus.
What are the responsive pleadings that should be verified or under With all of that you can have forty all in all. That is quite impressive
oath under the Rules? An answer to the allegation of actionable already. Ubos ang oras mo.
document under Sec. 8, Rule 8. It should be verified; except (1) if
the person or party filing the answer is not a party to the Yung cross-claim hindi itatanong.
actionable document; [It will be given in the form of a problem; If
not a party to the contract, then need not be verified; If a party, Distinction of counterclaim and cross-claim. (Malabo yun hindi
then it should be verified (2) failure or refusal to comply with the masyadong napapansin yun.)
order of production.
PARTS OF THE PLEADINGS. Babantayan ninyo yung Verification.
What is an actionable document? An actionable document is a Yung Forum Shopping. Sec. 5, Rule 7. Verification. This is the
document which is the basis of the plaintiff’s filing of the action or written sworn attestation of the parties that he has read the
the claim. Example: promissory note, deed of sale, chattel allegation or allegations in the pleading that it is true and correct
mortgage, etc. If the complaint is based on an actionable based on his personal knowledge or authentic records. Diniscuss
document; therefore, it must be under oath. If there is an answer na natin lahat ng pleadings na may verification. Right?
to the allegation of usury; that must be under oath. All answers
under the Rules on Summary Proceedings as provided for under Now, what is the effect of failure to verify? It may be considered
Sec. 3. Answer to the original complaint. Answer to the by the court as an unsigned pleading or the court may allow
Compulsory. Answer to the Cross. Under the Rules on Summary. amendment or verification of the pleading except those pleadings
Answer to written interrogatories under Rule 25 must be under filed before the appellate courts. You cannot do that.
oath. Answer to written request for admission under Rule 26 must
be under oath. Verification is only formal requirement. It is not jurisdictional.

How is interrogatories to parties given under Rule 25. Purpose. To Sec. 5. Certification or Acts of Forum Shopping. One act of forum
illicit material relevant facts. If you failed to have it under oath, shopping. One certification against forum shopping. But the title
deemed admitted are all the facts stated therein. Therefore, if it is heading is certification. It the middle forum shopping is placed.
deemed admitted. You may file a motion for judgment on the
pleadings. Because the answer that you have filed does not tender Let’s define forum shopping or acts of forum shopping. Acts of
an issue. Therefore, the remedy there is judgment on the forum shopping are different from the certification against forum
pleadings. shopping. One is an act the other one is an affidavit. The acts are
prohibited. The certification is a condition precedent. And all
Request for written admission. If you failed to have it under oath, initiatory pleadings. All initiatory pleadings have certification
the material document there is deemed (the genuineness and due against forum shopping.
execution) impliedly admitted. The answer does not tender an
issue. Therefore, the remedy on the part of the plaintiff is motion An act of forum shopping is an act of malpractice committed by a
for judgment on the pleadings. party to the action by filing multiple suits before different courts
either successively or simultaneously involving the same parties,
What else are the answers that should be verified? What if you did same cause of action, asking for the same relief and for the
not answer the interrogatories to parties? Is there a declaration of purpose of securing a favorable judgment.
default? Can you be required to file your answer? YES Sec. 5, Rule
29. You may be declared or there will be a judgment by default. If what is asked is what are the requisites of forum shopping, all
Modes of Discoveries, there is judgment by default if you failed to you have to do is to dissect the definition. You can answer two
file an answer under Rule 25. So Rule 25 in relation to Sec. 5, Rule questions at the same time. So it is an act of malpractice
29. committed by the parties filing multiple suits before different
courts either simultaneously or successively. Take note, it must
Response under the Rules on Small Claims. involve same parties, same cause of action, same relief. And, the
purpose is merely to secure a favorable judgment.
Response under Petition for Writ of Amparo, Data, Writ of
Kalikasan and Continuing Madamus. Yung iba nagkakamali, same parties, same issues, same subject
matter. Hindi po yun, cause of action nakalagay dun.
Page 90 of 95

2015 case. Reconveyance. Then nagkaroon ng decision umabot sa
Supreme Court. Then after the SC, judgment become final and
executory. Lahat ng remedies inavail. Nagkaroon ngayon ng
execution. Nagfile ng motion for execution. Ngayon and execution
naman ang sinabject yung petition for certiorari before the higher
courts. Tanong, meron bang forum shopping dun. Wala. Bakit?
Not the same cause of action.
Ways of committing forum shopping.
Sec. 1, Rule 9 are the exception to the Omnibus Motion Rule. Sec.
8, Rule 15 that is in correlation with Sec. 1, Rule 9.
What is an Omnibus Motion Rule? It is a Rule which provides that
motion attacking a pleading, judgment, orders, or proceeding
must contain all available objections at the time of its filing;
otherwise, it is deemed waived except Sec.1, Rule 9.
Lack of Jurisdiction.
Litis pendencia.

(1) Barred by prior judgment.

Can there be a motu proprio dismissal of the action? Yes, Sec. 1,
Rule 9. Litis pendencia and barred by prior judgment. If dismissed And, prescription.
motu proprio, your remedy is now appeal. Bakit? That is with
prejudice. FHI. Sec. 5, Rule 16. So yung Sec. 1, Rule 9 ilipat nyo na yun sa Sec. 8, Rule 15. Para
pagdating ng Pre-week nabasa mo na yun, alam mo na yun. Hindi
What are the effects of forum shopping. ka na magkakaroon ng cross reference. That would save you time.
(1)Summary dismissal of the cases.
(2)Contempt Sec. 9 Order of Default. An order of default is different from a
(3)Administrative Liability under Sec. 5. judgment by default. An order is an order issued by the court.
While a judgment is a decision rendered by the court. If you use
Now let’s go to certification against forum shopping. the word order, use the word issued. If you use the word judgment
or decision, use the word rendered. Order is an order of the court.
In the form of an affidavit, stating among others that he has not It is interlocutory in character. Judgment is a final adjudication
commenced. All initiatory pleadings have certification against upon the merits.
forum shopping.
What is an order of default?
Can there be a motu proprio dismissal of the action based on
failure to comply with the certification against non forum- It is an order issued by a court for failure on the part of the
shopping? Either in a direct question or in the form of a problem. defendant to file responsive pleading within the period prescribe
The answer is No. There are two basis there. (1) It does not fall by the Rules. So that Rule 9 has a correlation with Rule 11. When
under Sec. 1, Rule 9. (2) By express provision of Sec. 5, Rule 7, it to file responsive pleading.
can be dismissed by hearing or motion. That pertains to
certification against non forum shopping. Hindi ka nagfile ng answer. In default ka. Pagdisumagot. Anu ba
kailangan sagutin. Lahat ng initiatory pleadings. It should be
You cannot amend by express provision of Sec. 5. answered. So kanina may binangit tayo. Original complaint.
Permissive. Cross. Third. Fourth. Complaint-In-Intervention.
Is a Jurat a part of a pleading? You know what is a Jurat. Diba sa Complaint-In-Interpleader. Verified Statement of Claims. That all
Affidavit may nakalagay. must be answered. Sa small claims walang declaration of default.

Is a Jurat a part of a pleading? As a general rule, a Jurat is not a So what are the requirements for a motion in default?
part of a pleading unless the pleading should be verified or shall
contain an affidavit of certification against forum shopping then it (1)There must be a motion in writing.
becomes forms part of the pleading. Because you cannot have an (2)There must be a valid service of summons.
affidavit without a Jurat. (3)There must be proof of failure on the part of the defendant to
file responsive pleading in accordance with the provision of
Is a Bill of Particulars a part of a pleading? Sec. 6, Rule 12. A Bill of Rule 11.
Particulars is or forms part of a pleading. So if a Bill of Particulars
has been filed, it forms part of the pleading. Because it clarifies So if the service of summons is not valid; therefore, defendant
the ambiguities in the pleading. need not answer. The court did not acquire jurisdiction over his
person. It is upon motion in writing.
Is a Bill of Particulars a part of a complaint or information? Motion
for Bill of Particulars is different from Bill of Particulars. A motion Can there be motu proprio declaration of default? General rule,
is an application. The other one is a more definite statement. So No. Because under Rule 9. It must be in writing. But take note of
anu yung part ng pleading, yung more definite statement. Sec. 2 on Environmental Cases. Failure on the part of the
defendant to file an answer. The court may outrightly declare the
RULE 8. Actionable Document. defendant in default. That is a motu proprio declaration of default.
Take note of Sec. 15.
RULE 9. Objections or defenses not raised, then it is deemed
waived except the four. So the ground there provided for under What is Precautionary Principle? BAR 2014
Kalikasan, Continuing Mandamus, SLAP.
Page 91 of 95
Strategic Lawsuit Against Participation. It is an action whether
civil, criminal, administrative, filed against an individual. Officer,
government officer, or government units who has initiated an
action for the enforcement and protection of environment for the
purpose of harassing, vexing, annoying, etc.
is an interlocutory order, and not appealable under Sec. 1, Rule
41, and as provided for under Sec. the special civil action is the
remedy; therefore, 65 petition for certiorari is proper remedy.
No Order of Default.

It is a countercharge. Para magkaruon tayo ng idea kung anu yon. (1)Annulment.

So nag file ang individual ng kaso for the enforcement of (2)Declaration of Nullity.
environmental laws, rules and regulations. Yung dinemanda (3)Legal Separation.
nagdemanda din. Either civil, administrative, or criminal to vex. (4)Summary Proceedings.
(5)Small Claims Case. And,
If that is a civil case, you can file an Answer raise the SLAP as an (6)Environmental Cases. Together with Amparo and Data.
affirmative defense.
Judgment by Default.
But in criminal, it is different. You can file a motion to dismiss
based on the ground of SLAP. Judgment rendered by the court following the order of default
based on the presentation of evidence ex parte by the plaintiff.
What then would be the quantum of evidence?
If there is a judgment of default, what is your remedy?
The one against whom the SLAP was filed. The burden or the
quantum of evidence is merely substantial. But the one who filed What are the possible remedy or remedies in case of Judgment by
the SLAP, then the quantum of evidence is preponderance. Ito Default? (General Question) So you have to determine before
lang ang isa sa mga judicial proceedings na ang burden ay after finality of judgment. Motion for Reconsideration or New Trial
substantial at preponderance. under Rule 37. And after finality, we have Rule 38, Petition for
Annulment, collateral attack.
May warrantless arrest ba sa environmental rules?
In case your Motion for Reconsideration or New Trial has been
Nagtatapon ka ng toxic waste sa may Ayala Bridge. Nakita ka ng denied, what would be your remedy? Ordinarily, you are going to
police hinuli ka. Would that be a valid warrantless arrest? YES, Sec. think, judgment that is appealable. But again the judgment by
5, Rule 113. default was based only on the plaintiffs evidence. So on appeal,
there is nothing to review by the appellate court except the
Kung meron order of declaration of default. Two remedies: evidence of the plaintiff. So if that is the case appeal is not an
(1)Motion to lift order of default under Sec. 3, Rule 9. Verification. adequate speedy remedy. Certiorari is the remedy.
Affidavit of Merit on the grounds of extrinsic fraud, accident,
mistake or excusable negligence. Sec. 1, Rule 17, 38, 47. All So if appeal is not an adequate speedy remedy; certiorari is a
have extrinsic fraud. remedy. But mere filing of a petition for certiorari will not stop the
(2) Before the rendition of judgment, another remedy is Motion running of default, you should temporary restraining order or writ
to Admit Answer. That is by way of jurisprudence. of injunction.

In case your Motion to Lift Order of Default is denied. File a Motion The proper answer there is petition for certiorari with temporary
for Reconsideration. Both the Order of Default, the Order denying restraining order or writ of injunction.
the Motion to Lift, the Order denying the Motion for
Reconsideration are all interlocutory orders. What is a Single Motion Rule?

What is your remedy? Itong order ba na ito tinatapos ang buong There will be only one Motion for Reconsideration that can be
kaso o hindi? Pagtinatapos nya. Final yun. Paghindi nya tinatapos. filed under the Rules; except when there is special compelling
Interlocutory yun. reasons and only by the Supreme Court. So if the case is with the
SC, you may be allowed with leave of court. Ilagay mo na sa Rule
If interlocutory, it is not appealable under Sec. 1, Rule 41. No 37, 32.
appeal may be taken from an interlocutory order. So considering
that the order of default does not disposes of the action in its What is Berry Rule.
entirety and leaves something to be done by the trial court that is
interlocutory; that is not appealable. Motion for New Trial on the ground of newly discovered evidence.
So what is your remedy if there is an order of default? Since the Ginamit sa criminal case under Rule 121. Pwede rin dyan sa Rule
order of default is interlocutory and not appealable; certiorari is 37.
the remedy. Rule 65. There are only three remedies under Rule
65. Petition for certiorari. Prohibition. Mandamus. You cannot use Now, if you use motion for reconsideration Rule 37, that only
mandamus because you are not ordering the performance of an covers judgments, orders or resolutions. Di kasama ang
act. You cannot use Prohibition because you are not prohibiting interlocutory order dyan. So if that is interlocutory in character.
the performance of an act. You are trying to annul the order; Hindi po Rule 37 ang gamit don. Sec. 4, Rule 65, with relation to
therefore, that is certiorari. So if you answer the question make Rule 37. So impress the examiner, that is preparatory to the filing
sure that you have a reference or a basis. Since an order of default
Page 92 of 95
of a petition for certiorari before the appellate court for purposes Lis pendens. Sec. 14, Rule 13. Nagaapply lang ang lis pendens, if
of review. the action that was filed action involving title to, possession, or
interest over a real property. Nauuna ang action bago ang lis
RULE 10. Amendments. pendens.

BAR 2005. Amendment to confer Jurisdiction before filing of If your lis pendens is denied, what is your remedy? Appeal five
responsive pleading is allowed. days. Sec. 117, Land Registration Authority. Pag denied by LRA,
petition for review under Rule 43. Sa Court of Appeals, fifteen
In case of service of summons, may service of summons ba kapag days.
may amendment? No, tingnan mo if the court has already
acquired jurisdiction over the defending party. There is already What is the remedy if the decision of the RTC, Special Commercial
acquisition of jurisdiction, no need of summons. Otherwise, you Court, violation of Intellectual Property Code? That is Rule 43 not
have to serve summons. Rule 41. Nabasa nyo na ba ang Rules sa Intellectual Property
Cases? Rule 43 po yun. Petition for review fifteen days.
Distinction. Amendment. Supplemental.
Is lis pendens the same with litis pendencia?
Amendment is the changing, omitting, allegations etc.
Supplemental is to supplant, supplement. Amendment is either a Auter action pendant. That is litis pendencia.
matter or right or a matter of discretion. Supplemental is always
with leave of court. NO. Lis pendens is notice or annotated at the back of the title
before the Register of Deeds were the property is located. That is
Amendment to conform to or authorize presentation of evidence. a ground for Motion to Dismiss. Notice of lis pendens is filed
Tandaan. Issues not raised in the pleadings tried by both parties before the office of the Register of Deeds. Motion to Dismiss on
with their express or implied consent, the court may allow the the basis of litis pendencia is filed before the court.
amendment of the pleadings in order to conform to the evidence
presented. Pero kung walang amendment, as if the issue will RULE 14. SUMMONS.
stand.
Juridical entities without resident agent in the Philippines
If you file a motion to amend, and the movant because of the busy transacting business duon sa Adm. Matter 1163. How would you
schedule was not able to file the amended pleading. What will serve the summons? (1)Personal.
happen? That may be a ground for the dismissal of the action (2)Through the DFA.
under Sec,. 3, Rule 17, Failure to comply with the order of the (3)We have publication.
court would cause dismissal with prejudice otherwise ordered of (4)Fac simile other electronic means.
the court without prejudice.
Can you serve summons by fac simile? YES, Adm. Matter 1163.
What is the remedy? If it is with prejudice, you appeal. If without
prejudice, you refile. Sec. 15, Rule 14. Extraterritorial. Any other modes which the court
may deem proper,
Paginamend substantially, merong answer yan. You have to file an
answer. Would your answer in the original complaint; would be Service of Summons. The purpose is to acquire jurisdiction over
your answer in the amended? You have to file your answer to the the person of the defending party. In case of action in rem, action
amended complaint; otherwise, you will be declared in default quasi in rem, for purposes of compliance with due process.
also.
Personam. In rem.
RULE 11. WHEN TO FILE RESPONSIVE PLEADINGS.
Periods lang yan. Personam. Judgment liable parties.

RULE 12. BILL OF PARTICULARS In rem. Binds the whole world. Or yung mga Special Proceedings.
Intracorporate dispute under the Securities Regulation Code.
Nagfile ng complaint may ambiguity; therefore, nag file ng motion Ano yung mga quasi in rem proceedings? Foreclosure of
for bill of particulars, that is prohibited under the Rules. mortgage. Attachment.

If the motion for bill of particulars is denied, what is your remedy? The purpose of the summons is only to comply with due process.
File responsive pleading within the balance to which he is entitled
to but in no case less than five days. Acquisition of the property subject matter of the action.

Iba po ang motion for bill of particulars sa bill of particulars.

Sec. 20. Voluntary appearance. Kung ikaw ay nag file any motion,
you appear there without questioning the jurisdiction of the court;
RULE 13. FILING AND SERVICE OF PLEADINGS, JUDGMENTS AND therefore, that is voluntary submission. If you file a motion for
OTHER PAPERS extension of time; therefore, that is voluntary submission. For
example, you file a motion to dismiss questioning the jurisdiction
of the court that would not be voluntary submission.
Page 93 of 95

Can there be service of summons by publication in an action in
personam? Kasi diba young service of summons in case of actions
that is in personam, it’s either personal or substituted. May
exception dun. Sec. 14, Rule 14. In any action where the identity
or whereabouts of the defendant is unknown, in any action that
includes action in personam.
RULE 15. MOTIONS
But different po dun sa criminal, naalala nyo yung kaso ni Gloria
Macapagal Arroyo, nagkaroon ng Demurrer to Evidence diba?
Then it was denied. Umakyat on certiorari dun sa SC. Una hindi sya
dumaan don sa proseso ng Hierarchy of Courts. Bakit dun sa SC?
There is special and compelling reasons. An exception to hierarchy
of courts. Second, sabi nila appellate courts cannot grant
demurrer to evidence. So that is a deviation from the the ruling in
civil procedure. Tingnan nyo young Gloria Macapagal Arroyo.
Although that is beyond, still that is within the Syllabus.

Is a letter a motion? As a rule, a letter is not a motion. In order to RULE 17. DISMISSAL OF ACTIONS.
be a motion, there must be Sec. 4,5,6, Rule 14. Except in Sec. 3 e
small claims. Two dismissal rule. Ano bang requisite ng two dismissal rule? (1)
There are two dismissal based on the same parties by a court of
What is the definition of motion under the Rules on Small Claims? competent jurisdiction. Second dismissal would amount to barred
by prior judgment. So the second dismissal is a final order of
A request whether oral or written requiring an order or an action dismissal. So therefore, appeal is the remedy.
from the court including informal request or letter.
Sec. 3. Padilla v. Global Seatic. Pagtiningnan mo young Rules
Is a letter a motion? Tingnan mo kung ang kaso small claims. Now, without prejudice to the counterclaim raised by the defendant
nag file ng letter ang defendant Dear Judge we request that the which can be prosecuted in the same case in a separate case. With
case be reset to Date because I am suffering from loose bowel the advent of the ruling of Global Seatic, the dismissal of the
movement. Lovingly yours defendant. Tingnan mo muna kung yan original action causes the dismissal of everything that includes
ay ordinary or small claims. counterclaim. Your remedy there is to file a separate claim as far
as your counterclaim is concerned. 2014. That is a deviation from
If what is involved is Php 200,000 payment of money or the Rules.
reimbursement of money arising from those enumerated
damages, delict, quasi-delict or quasi-contract or contract of RULE 18. PRE-TRIAL
lease, mortgage. That is small claims. That is a motion. Sec. 3 e,
Rules on Small Claims. Doctrine of non-suited. Failure to appear on the part of the
plaintiff would cause the dismissal of the action with prejudice
RULE 16. MOTION TO DISMISS. unless otherwise ordered by the court without prejudice.

Exclusive po ba ang motion to dismiss? (a) to (j) Condition BAR 2008. One day one witness rule.
precedent yung huling huli dyan.
May isa pang natitira dun sa amendment nuns 2004 sa Rule18.
What are the grounds in which the dismissal is with prejudice? Most Important Witness Rule.
Markahan nyo na po isa isa because all the rest is without
prejudice. During Pre-Trial, the … who are the most important witnesses to
be presented during the trial in order to limit corroborative
Ano yung with prejudice? (f) (h) (i) Remedy, appeal Sec. 5. testimonies. Yung po yung tinatawag na most important witness
rule.
If the motion to dismiss is grounded on the lack of jurisdiction over
the person of the defending party; possible actions of the court, Motion ex parte is required as a general rule, meron pong
either to grant, deny the same or issue alias summons. Because jurisprudence dyan. Would the failure on the part of the plaintiff
alias summons can be issued if the original summon has not been to file a motion ex parte to set the case for pre-trial confer ground
duly served. for the dismissal of the action Sec. 3, Rule 17. Failure to comply
with the provisions of the Rules of Court. Yun yung nagging issue.
Distinction. Rule 16 and Rule 33. Demurrer to Evidence. Sabi ng SC NO, the clerk of court is mandated to issue a notice of
pre-trial conference.
Kanina diniscuss na natin yan. Motion to Dismiss. Meron isang
jurisprudence eh. Can a pre-trial conference be waived? General Rule, No. But there
is a case in 2010, di nakita ng dalawang parties na walling pre-trial
Sinong pwedeng mag grant ng demurrer to evidence? conference, nag proceed with the trial, nag present na ng
evidence. Nung nag appeal, walling pre-trial conference which is
Can an appellate court or courts grant a motion for demurrer to mandatory. Therefore, the decisions and all proceedings are null
evidence? and void. Sabi ng SC, you should have raised that in the trial court
because as a rule you cannot raise the issue for the first time on
May case dyan eh. Sabi ng SC nung 2011. Only the trial court may appeal except lack of jurisdiction. That is the only case na nag rule,
grant demurrer to evidence not appellate courts. That is in civil the right or the privilege to invoke the right to pre-trial conference
case. is waived. Tandaan nyo yan ha. Wag kakalimutan.

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Ano ang remedy in case the plaintiff failed to appear

Ang problema if the defendant failed to appear? There will be

presentation of evidence ex parte. If there is an order for the
presentation of evidence, therefore, you have to file a motion for
reconsideration on the order that is before the fifteen day period.
Pero halimbawa meron ng order at meron ng judgment. So you
have to determine whether the judgment is already final. If it is
not final, then motion for reconsideration and new trial is proper
remedy. If it is already final and executory, then 38, 47, 65
collateral attack.

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