Professional Documents
Culture Documents
CIVIL PROCEDURE
A.
MOTION
FOR
NEW
TRIAL
OR
RECONSIDERATION ........................................ 102
B. APPEALS ......................................................105
E.
CASES
COVERED
BY
BARANGAY
CONCILIATION ................................................... 17
F. TOTALITY RULE.............................................. 18
A. ACTIONS......................................................... 18
B. CAUSE OF ACTION ........................................ 21
D.VENUE ............................................................ 30
E. PLEADINGS .................................................... 31
F. SUMMONS ..................................................... 53
J. MOTION TO DISMISS...................................... 61
M. INTERVENTION ............................................. 77
N. SUBPOENA ....................................................78
O. MODES OF DISCOVERY ............................... 80
P. TRIAL ............................................................. 89
TABLE OF CONTENTS
D. REPLEVIN ..................................................... 162
A.
H.
FORECLOSURE
OF
REAL
ESTATE
MORTGAGE ...................................................... 188
V. ALLOWANCE OR DISALLOWANCE OF
WILL ......................................................... 221
D. REPROBATE................................................ 224
SPECIAL PROCEEDINGS
E.
APPOINTMENT
OF
SPECIAL
ADMINISTRATOR ............................................ 230
ii
TABLE OF CONTENTS
F. REVOCATION, DEATH, RESIGNATION AND
REMOVAL
OF
EXECUTORS
AND
ADMINISTRATORS .......................................... 231
A.
GUARDIANSHIP
OF
INCOMPETENT
PERSONS NOT MINORS ................................. 246
VIII.
ACTIONS
BY
AND
AGAINST
EXECUTORS AND ADMINISTRATORS ..... 237
A.
DISTINGUISHED
FROM
EXECUTOR/ADMINISTRATOR ....................... 243
iii
TABLE OF CONTENTS
CRIMINAL PROCEDURE
G. CONSOLIDATION ........................................274
E.
SUFFICIENCY
OF
COMPLAINT
OR
INFORMATION ................................................ 303
G. AMENDMENT OR SUBSTITUTION OF
COMPLAINT OR INFORMATION .................... 306
iv
TABLE OF CONTENTS
IV. PRELIMINARY INVESTIGATION .......... 312
G.
GROUNDS
FOR
SUSPENSION
OF
ARRAIGNMENT ................................................ 337
TABLE OF CONTENTS
IX. MOTION TO QUASH ............................338
X. PRE-TRIAL........................................... 345
XI. TRIAL.................................................. 348
XII. JUDGMENT ........................................ 352
XIII. NEW TRIAL OR RECONSIDERATION 356
A.
B.
C.
D.
EVIDENCE
vi
TABLE OF CONTENTS
C. OBJECTION [SEC. 36, RULE 132] ................. 431
RULES OF PROCEDURE
ENVIRONMENTAL CASES
FOR
B.
TEMPORARY
ENVIRONMENTAL
PROTECTION ORDER (TEPO) .........................437
C. DECLARATION OF DEFAULT MOTU PROPRIO
...........................................................................437
D. PRE-TRIAL CONFERENCE; CONSENT
DECREE ............................................................437
E. PROHIBITED PLEADINGS AND MOTIONS .437
F. PERIOD TO TRY AND DECIDE .....................437
G. JUDGMENT AND EXECUTION; RELIEFS IN A
CITIZEN SUIT ................................................... 438
H.
PERMANENT
ENVIRONMENTAL
PROTECTION ORDER; WRIT OF CONTINUING
MANDAMUS .................................................... 438
I. STRATEGIC LAWSUIT AGAINST PUBLIC
PARTICIPATION (SLAPP) ................................ 438
vii
UP LAW BOC
CIVIL PROCEDURE
REMEDIAL LAW
REMEDIAL LAW
CIVIL PROCEDURE
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CIVIL PROCEDURE
I. General Concepts
REMEDIAL LAW
A.1 SOURCE
Remedial law is basically contained in the
Rules of Court. Circulars of the Supreme Court
implementing the Rules of Court (e.g. Rules on
Summary Procedure) also contain remedial
law.
A.2 APPLICABILITY
The Rules of Court shall apply in all the courts,
except as otherwise provided by the SC. [Rule 1,
Sec. 2]
It shall govern the procedure to be observed in
civil or criminal actions, and special
proceedings. [Rule 1, Sec. 3]
B. SUBSTANTIVE
REMEDIAL LAW
LAW
VIS--VIS
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SUBSTANTIVE LAW
REMEDIAL LAW
Creates, defines, or
regulates
rights,
concerning life, liberty
or property or the
powers of agencies or
instrumentalities for the
administration of public
affairs
It makes vested rights
possible
Legislation
providing
means or methods
whereby
causes
of
action
may
be
effectuated,
wrongs
redressed, and relief
obtained; also called
Adjective Law
Prospective
application
in
Cannot be enacted by
the SC
REMEDIAL LAW
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REMEDIAL LAW
Court
Tribunal officially
assembled under
authority of law
Comparable to
corporation
Judge
Officer
tribunal
of
such
a A physical or natural
person
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REMEDIAL LAW
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REMEDIAL LAW
A. ASPECTS OF JURISDICTION
[Boston Equity Resources, Inc. v. CA (2013)]
II. Jurisdiction
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REMEDIAL LAW
Error of judgment
One which the court
may commit in the
exercise
of
its
jurisdiction. It includes
errors of procedure or
mistakes in the courts
findings.
Correctible by appeal.
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REMEDIAL LAW
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REMEDIAL LAW
B. JURISDICTION OF COURTS
B.1 SUPREME COURT
Exclusive Original Jurisdiction
Petitions for certiorari, prohibition and
mandamus against the CA, COMELEC, COA,
CTA, Sandiganbayan.
Concurrent Original Jurisdiction
(1) With CA
(a) Petitions for certiorari, prohibition, and
mandamus against:
(i) Regional Trial Courts;
(ii) Civil Service Commission;
(iii) Central Board of Assessment
Appeals;
(iv) NLRC, and other Quasi-judicial
agencies.
(b) Petitions for writ of kalikasan
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(11) Such findings are contrary
admissions of both parties.
CIVIL PROCEDURE
to
the
REMEDIAL LAW
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B.4 SANDIGANBAYAN
Original Jurisdiction:
(1) Violations of RA 3019, or the Anti-Graft
and Corrupt Practices Act
(2) Violations of RA 1379, or the Anti-Ill-Gotten
Wealth Act
(3) Sequestration cases, under Executive
Order Nos. 1, 2, 14, and 14-A
(4) Bribery (Chapter II, Sec. 2, Title VII, Book II,
RPC) where one or more of the principal
accused are occupying the following
positions in the government, whether in
permanent, acting or interim capacity, at
the time of the commission of the offense:
(a) Officials of the executive branch
occupying the positions of regional
director
and
higher,
otherwise
classified as Grade 27 and higher, of
the Compensation and Position
Classification Act of 1989 (RA 6758)
(b) Members of Congress and officials
thereof classified as G-27 and up under
RA 6758
(c) Members of the Judiciary without
prejudice to the provisions of the
Constitution
(d) Chairmen and Members of the
Constitutional Commissions without
prejudice to the provisions of the
Constitution
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REMEDIAL LAW
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(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
REMEDIAL LAW
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REMEDIAL LAW
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C. JURISDICTION
CLAIMS
OVER
REMEDIAL LAW
SMALL
Prohibited Pleadings
[Sec. 19, 1991 Revised Rule on Summary
Procedure]
(1) Motion to dismiss the compliant except on
the ground of
(a) failure to comply with barangay
conciliation proceedings; or
(b) lack of jurisdiction over the subject
matter
(2) Motion for a bill of particulars;
(3) Motion for new trial, or for reconsideration
of a judgment, or for reopening of trial;
(4) Petition for relief from judgment;
(5) Motion for extension of time to file
pleadings, affidavits, or any other paper;
(6) Memoranda;
(7) Petition for certiorari, mandamus, or
prohibition against any interlocutory order
issued by the court;
(8) Motion to declare the defendant in default;
(9) Dilatory motions for postponement;
(10) Reply;
(11) Third-party complaints; and
(12) Interventions.
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EXCEPT:
(1) Where one party is the government or any
subdivision or instrumentality thereof
(2) Where one party is a public officer or
employee, and the dispute relates to the
performance of his official functions
(3) Offenses punishable by imprisonment
exceeding one (1) year or a fine exceeding
P5,000
(4) Offenses where there is no private offended
party
(5) Where the dispute involves real properties
located in different cities or municipalities
unless the parties thereto agree to submit
their differences to amicable settlement by
an appropriate lupon
(6) Disputes involving parties who actually
reside in barangays of different cities or
municipalities,
except
where
such
barangay units adjoin each other and the
parties thereto agree to submit their
differences to amicable settlement by an
appropriate lupon
(7) Such other classes of disputes which the
President may determine in the interest of
justice or upon the recommendation of the
Secretary of Justice
(8) Any complaint by or against corporations,
partnerships, or juridical entities. The
reason is that only individuals shall be
parties
to
barangay
conciliation
proceedings either as complainants or
respondents
(9) Disputes where urgent legal action is
necessary to prevent injustice from being
committed
or
further
continued,
specifically:
(a) A criminal case where the accused is
under police custody or detention
(b) A petition for habeas corpus by a
person illegally detained or deprived of
his liberty or one acting in his behalf
(c) Actions coupled with provisional
remedies,
such
as
preliminary
F. TOTALITY RULE
Where there are several claims or causes of
actions between the same or different parties,
embodied in the same complaint, the amount
of the demand shall be the totality of the claims
in all the claims of action, irrespective of
whether the causes of action arose out of the
same or different transactions (Sec. 33[1], BP
129).
III. Commencement of
Actions to Trial
A. ACTIONS
An ordinary suit in a court of justice by which
one party prosecutes another for the
enforcement or protection of a right or the
prevention or redress of a wrong [Santos v. Vda.
De Caparas, (1959)]
An action is the legal and formal demand of
ones right from another person made and
insisted upon in a court of justice. The
determinative operative act, which converts a
claim into an action is its filing with a court of
justice. [Riano]
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Special Proceeding
As to Parties
Involves at least 1
Involves at least 2 party or 2 or more
parties
parties in proper
cases
As to cause of action
Involves a right and a
violation of such right May involve a right,
by the defendant, but there need not
which causes some be a violation of this
damage or prejudice right
upon the plaintiff
As to formalities
Requires
the Requires no such
application of legal formalities, as it
remedies
in may be granted
accordance with the upon application
prescribed rules
As to governing rules
Ordinary
rules
of Special rules of
procedure
procedure
Can be immediately
and
directly
appealed to the
appellate court
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REMEDIAL LAW
Transitory action
One that could be
prosecuted in any one
of several places
[Manila Railroad v.
Attorney-General
(1911)]
Its venue depends
Venue depends upon upon the residence of
the location of the the plaintiff or the
property involved in defendant at the
the litigation (Riano)
option of the plaintiff
(Riano)
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Action in personam
Action quasi in rem
Directed against particular Directed against particular
Directed against the thing itself
persons
persons
Jurisdiction over the person of
Jurisdiction over the person of Jurisdiction over the person of defendant is not required as
the defendant not required
defendant required
long as jurisdiction over the res
is required
Proceeding to subject the
Action
to
impose
a
Proceeding to determine the
interest of a named defendant
responsibility or liability upon a
state or condition of a thing
over a particular property to an
person directly
obligation or lien burdening it
Judgment is binging only upon
Judgment is binding on the
Judgment
binging
upon
impleaded parties or their
whole world
particular persons
successors in interest
E.g. Action for partition;
E.g.
Probate
proceeding, E.g. Specific performance,
foreclosure of real estate
cadastral proceeding
action for breach of contract
mortgage
B. CAUSE OF ACTION
Right of action
The remedial right or
right to relief granted
by law to a party to
institute an action
against a person who
has committed a
delict
or
wrong
against him
Right to sue as a
consequence of the
delict
Cause of action
The delict or wrongful
act
or
omission
committed by
the
defendant in violation
of the primary rights
of the plaintiff
The delict or wrong
Determined by the
Whether such acts
averments in the
give him right of
pleading
regarding
action determined by
the acts committed by
substantive law
the defendant
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Test of Sufficiency
The existence of the round to dismiss can be
determined only from the facts alleged in the
complaint and from no other, and the court
cannot consider other matters aliunde.
The test is whether, assuming the facts alleged
to be true, the court could render a valid verdict
in accordance with the prayer of the complaint.
[Manaloto v. Veloso III]
Effects:
The filing of one or a judgment upon the merits
in any one is available as a ground for the
dismissal of the others. [Rule 2.4] The remedy
is for the defendant to file a Motion to Dismiss
under Rule 16.
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Rationale
A party may not institute more than one suit
for a single cause of action. [Rule 2, Sec. 3] The
rationale is:
(1) To prevent repeated litigation between the
same parties in regard to the same subject
or controversy;
(2) To protect the defendant from unnecessary
vexation. Nemo debet vexare pro una et
eadem causa (No man shall be twice vexed
for one and the same cause);
(3) To avoid the costs and expenses incident to
numerous suits. [City of Bacolod v. SM
Brewery (1969)]
MISJOINDER
OF
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Legal personality to
sue
Plaintiff is not the real
party in interest
Ground is failure of
complaint to state a
cause of action. [Rule
16, Sec. 1(g)]
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REMEDIAL LAW
Remedies:
(1) Amendment of pleadings (Alonso v.
Villamor, 1910); or
(2) Complaint may be deemed amended to
include the real party-in-interest (Balquidra
v. CFI Capiz, 1977)
Representatives as Parties
A representative is one acting in fiduciary
capacity, such as a trustee of an express trust,
a guardian, an executor or administrator, or a
party authorized by law or the Rules of Court.
[Rule 3, Sec. 3]
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CIVIL PROCEDURE
Necessary parties
Should
be
joined
whenever possible
Presence is a condition
sine qua non for
exercise of judicial
power
No valid judgment if
not joined.
Interest
in
the
controversy such that a
final decree would
necessarily affect their
rights..
REMEDIAL LAW
Requisites:
(1) Right to relief arises out of the same
transaction or series of transactions
Transaction not only a stipulation or
agreement but any event resulting in
wrong, whether the wrong was done by
violence, neglect, or breach of contract
Series of transactions transactions
connected with the same subject of the
action
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REMEDIAL LAW
If the court finds the reason for the nonjoinder of a necessary party unmeritorious,
it may order the inclusion of such necessary
party, if jurisdiction over his person may be
obtained. Failure to comply with such
order without justifiable cause is deemed a
waiver of the claim against such party. [Rule
3, Sec. 9, pars. 1-2]
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REMEDIAL LAW
Survival of Action
Survival depends on the nature of the action
and the damage sought
(1) Causes of Action that Survive:
(a) The wrong complained of affects
primarily and principally property and
property rights
(b) Injuries to the person are merely
incidental
(c) E.g. Purely personal actions like
support
(2) Causes of Action that do not Survive:
(a) The injury complained of is to the
person
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Effect
There shall be substitution in the manner
provided under Rule 3, Sec. 16, and the action
will continue until the entry of final judgment.
However, execution shall not issue in favor of
the winning plaintiff. It should be filed as a
claim against the decedents estate without
need of proving the claim.
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CIVIL PROCEDURE
D.VENUE
Exception in cases of
Summary
Procedure
[Rule 4, Rule on
Summary Procedure]
May be waived
Procedural
May be changed by the
written agreement of
the parties
Establishes a relation
between plaintiff and
defendant, or petitioner
and respondent
Not a ground for a
motu propio dismissal
proprio dismissal.
Venue
REMEDIAL LAW
Establishes a relation
between the court and
the subject matter
Lack of jurisdiction
over the subject matter
is a ground for a motu
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REMEDIAL LAW
E. PLEADINGS
Pleadings are the written statements of the
respective claims and defenses of the parties,
submitted to the court for appropriate
judgment [Rule 6, Sec. 1]
May be initiatory
Always filed before
judgment
Only 9 kinds of
pleading are allowed
by the rules
Must be written
Motion
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i. Complaint
The pleading alleging the plaintiffs cause/s
of action. [Rule 6, Sec. 3]
REMEDIAL LAW
ii. Answer
The pleading where the defendant sets forth
his affirmative/negative defenses. It may also
be the response to a counterclaim or a crossclaim. [Rule 6, Sec. 4]
iii. Counterclaim
Any claim which a defending party may have
against an opposing party.
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How Raised
(1) By including it in the Answer
A compulsory counterclaim or a crossclaim that a defending party has at the
time he files his answer shall be
contained therein. [Rule 11, Sec. 8]
(2) By filing after the Answer
(a) A counterclaim may be set up, by
leave of court, by amendment before
judgment, when:
(i)
it is not set up due to oversight,
inadvertence,
or
excusable
neglect, or
(ii)
when justice requires [Rule 11, Sec.
10]
jurisdiction.
Barred if not set up in
the action.
Need not be answered;
no default.
Not
an
initiatory
pleading; does not
require CNFS
Initiatory pleading
Compulsory Counterclaim
Requisites
(1) It arises out of, or is necessarily
connected with the transaction or
occurrence, which is the subject matter of
the opposing party's claim;
(2) It does not require for its adjudication the
presence of third parties of whom the
court cannot acquire jurisdiction;
(3) It must be cognizable by the regular
courts of justice, and within the courts
jurisdiction both as to the amount and
the nature. [Rule 6, Sec. 7]
Arises out of or is
necessarily connected
with the transaction or
occurrence that is the
subject matter of the
opposing party's claim.
Does not require for its
adjudication
the
presence
of
third
parties of whom the
court cannot acquire
Kinds of Counterclaims
Compulsory
counterclaim
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Permissive
counterclaim
Neither arises out of
nor
is
necessarily
connected with such
subject matter
May
require
the
presence
of
third
parties over whom the
court cannot acquire
jurisdiction.
Permissive Counterclaim
A counterclaim is permissive if it does not
arise out of, nor is necessarily connected with,
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Determining
whether
Compulsory
or
Permissive
(also known as logical relationship test)
A positive answer on all four the following
tests would indicate that the counterclaim is
compulsory:
(1) Are the issues of fact and law raised by
the claim and counterclaim largely the
same?
(2) Would res judicata bar a subsequent suit
on defendants claims, absent the
compulsory counterclaim rule?
(3) Will substantially the same evidence
support or refute plaintiffs claim as well
as the counterclaim?
(4) Is there any logical relation between the
claim and counterclaim? [GSIS v. Heirs of
Caballero]
iv. Cross-claim
Requisites
(1) A claim by one party against a co-party;
(2) It must arise out of the subject matter of
the complaint or of the counterclaim;
(3) The cross-claimant is prejudiced by the
claim against him by the opposing party.
A cross-claim is generally compulsory. A
cross-claim not set up shall be barred. [Rule
9, Sec. 2] Exceptions (permissive crossclaims) are when:
(1) The claim is outside the courts
jurisdiction;
(2) The court cannot acquire jurisdiction over
3rd parties whose presence is necessary
for the adjudication of said cross-claim.
(3) The Cross-claim that matured or was
acquired after service of Answer
Improper Cross-Claims
(1) Where the cross-claim is improper, the
remedy is certiorari (Malinao v. Luzon
Surety, 1964)
(2) The dismissal of a cross-claim is
unappealable when the order dismissing
the complaint becomes final and
executory (Ruiz, Jr. v. CA, 1993)
(3) A cross-claim is not allowed after
declaration of default of cross-claimant
(Tan v. Dimayuga, 1962) It would be
tantamount to setting aside the order of
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3rd-party complaint
Counterclaim
3rd Party
complaint
Against
an
opposing party
Against
a
person not a
party to the
action
Must arise
out of the
transaction
that is the
subject
matter of the
original
action or of a
counterclaim
therein
Must be in
respect of the
opponents
(plaintiffs)
claim
No need for
a leave of
court
Leave of court
is needed
Cross-claim
Against
co-party
3rd-party complaint
Brings into the action a
3rd person who was not
originally a party
Initiative is with the
person already a party
to the action
Additional Rules
Leave of court to file a 3rd-party complaint
may be obtained by motion filed under Rule
15.
Complaint in
intervention
Same
Initiative is with a nonparty who seeks to join
the action
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vi. Complaint-in-Intervention
Pleadings-in-Intervention (Rule 19, Sec. 3)
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in
resisting a claim against the latter.
Legal Interest
Interest must be of a direct and immediate
character so that the intervenor will either
gain or lose by the direct legal operation of
the judgment. The interest must be actual
and material, a concern which is more than
mere curiosity, or academic or sentimental
desire; it must not be indirect and contingent,
indirect
and
remote,
conjectural,
consequential or collateral. [Virra Mall
Tenants v. Virra Mall (2011)]
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How to Intervene
(1) With leave of court, the court shall
consider the 2 factors
(2) Motion to intervene may be filed at any
time before rendition of judgment by trial
court
(3) Copy of the pleadings-in-intervention
shall be attached to the motion and
served on the original parties
REMEDIAL LAW
vii. Reply
The plaintiffs response to the defendant's
answer. The function of which is to deny or
allege facts in denial or in avoidance of new
matters alleged by way of defense in the
answer and thereby join or make issue as to
such new matters. [Rule 6, Sec. 10]
Effect of Failure to Reply
General Rule: Filing a reply is merely optional.
New facts that were alleged in the answer
are deemed controverted should a party fail
to reply thereto.
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II. VERIFICATION
A pleading need not be under oath, verified
or accompanied by affidavit, unless
otherwise provided by law or rules.
Verification is required in the following
instances:
(1) Pleadings filed in the inferior courts in
cases covered by the Rules on Summary
Procedure are all required to be verified
(2) Petition for relief from judgment or order
(Sec. 3, Rule 38)
(3) Petition for review from RTC to the CA
(Sec. 1, Rule 42)
(4) Petition for review from quasi-judicial
agencies to the CA (Sec. 5, Rule 43)
(5) Appeal by certiorari from the CTA to the
SC (Sec. 12, RA 9282 amending Sec. 19,
RA 1125)
(6) Appeal by certiorari from CA to the SC
(Sec. 1, Rule 45)
(7) Petition for annulment of judgments or
final orders and resolutions (Sec. 1, Rule
47)
(8) Complaint for injunction (Sec. 4, Rule 58)
(9) Application for appointment of receiver
(Sec. 1, Rule 59)
(10) Application for support pendente lite (Sec.
1, Rule 69)
(11) Petition for certiorari against judgments,
final
orders,
or
resolutions
of
constitutional commissions (Sec. 2, Rule
64)
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Capacity
The following must be averred:
(1) Facts showing the capacity of a party to
sue or be sued; or
(2) The authority to sue or be sued in a
representative capacity;
(3) Or the legal existence of an organized
association of persons that is made a
party [Rule 8, Sec. 4]
Fraud or Mistake Circumstances
constituting these must be stated with
particularity [Rule 8, Sec.5]
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II.
PLEADING
DOCUMENT
CIVIL PROCEDURE
AN
ACTIONABLE
REMEDIAL LAW
Modes of Denial
(1) Specific Absolute Denial - Defendant
must specify each material allegation of
fact the truth of which he does not admit,
and, whenever applicable, set forth the
substance of matters relied upon to
support the denial
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Order of default
Issued by the court
on plaintiffs motion,
for failure of the
defendant to
seasonably file his
responsive pleading
Interlocutory
unappealable
Exceptions:
(1) Lack of jurisdiction over the subject
matter;
(2) Litis pendentia
(3) Res judicata
(4) Action barred by statute of limitations.
Judgment by default
Rendered by the
court following a
default order or after
it received ex parte
plaintiffs evidence
Final Appealable
E.6 DEFAULT
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If motion denied:
Defendant allowed to file an answer
If motion granted:
Court issues order of default and
renders judgment or require plaintiff
to submit evidence ex parte
If plaintiff fails
allegations:
Case is dismissed
46
proves
his
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II. FILING
PLEADINGS
VERSUS
SERVICE
OF
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different period
fixed by the court
is
Amendment
not Notice of the order
matter of right: Within admitting the same
10 days
(Rule 11, Sec. 3)
Answer to Counterclaim or Cross-Claim
From service (Rule 11,
Within 10 days
Sec. 4)
Answer to third (fourth, etc)-party complaint
Same rule as answer
Within 15 days
to the complaint (Rule
11, Sec. 5)
Reply
From service of the
Within 10 days
pleading responded
to (Rule 11, Sec. 6)
Answer to supplemental complaint
From notice of the
Within 10 days
order admitting the
same,
unless
a
V. MODES OF SERVICE
Personal Service (Rule 13, Sec. 6)
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Substituted Service
Completeness of
Proof of filing
Filing
[Rule 13, Sec. 12]
[Rule 13, Sec. 3]
Personal filing
Written
or
stamped
Upon receipt by
acknowledgment by the
the clerk of court
clerk of court
Filing by registered mail
On the date the (1) Registry receipt, and
pleading
was (2) Affidavit
of
the
deposited with the
person who did the
post office
mailing
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I. AMENDMENTS AS A MATTER OF
RIGHT
Requisites
(1) A motion for leave of court to amend
pleading is filed
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Two Scenarios
(1) No objection to the evidence is raised
Issues not raised in pleadings are tried by
express or implied consent of the parties;
they are treated in all respects as if they
had been raised.
Such amendments as may be necessary to
cause the pleadings to conform to the
evidence may be made upon motion of any
party at any time, even after judgment
Failure to amend does not affect the result
of the trial of those issues
V. SUPPLEMENTAL PLEADINGS
A pleading which sets forth transactions,
occurrences or events which have happened
since the date of the pleading sought to be
supplemented. [Rule 10, Sec. 6]
Purpose: To bring into the records new facts
which will enlarge or change the kind of relief
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F. SUMMONS
Contents
(1) Summons shall be:
(a) Directed to the defendant
(b) Signed by clerk of court under seal
(2) Summons shall contain:
(a) The name of the court, and the names
of the parties to the action;
(b) A direction that the defendant answer
within the time fixed by the Rules; and
(c) A notice that unless the defendant so
answers, plaintiff will take judgment by
default and may be granted the relief
applied for.
(3) The following shall be attached to the
original and each copy of the summons:
(a) A copy of the complaint; and
(b) An order for appointment of guardian
ad litem (if any)
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Modes
(1) Personal Service [Rule 14, Sec. 6]
(2) Substituted Service [Rule 14, Sec. 7]
(3) Service by Publication [Rule 14, Sec. 14-16]
Summons cannot be served by mail
Where service is made by publication, a copy of
the summons and order of the court shall be
sent by registered mail to last known address
of defendant. [Rule 14, Sec. 15]
Resort
to
registered
mail
is
only
complementary to service by publication but
does not mean that service by registered mail
alone would suffice.
I. PERSONAL SERVICE
How Done [Rule 14, Sec. 6]
(1) By handing a copy of summons to him; or
(2) If he refuses to receive it, by tendering it to
him
Personal Service of
Pleadings
Rule 13, Sec. 6
Personal
service
includes:
1. Service on the
party or his
counsel; or
2. By leaving a
copy with the
clerk or person
having charge
of his office; or
3. Leaving it with
a person of
sufficient age
and discretion
at the partys or
counsels
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Personal Service of
Summons
Rule 14, Sec. 6
Service is only made
on
defendant
himself
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residence
III.
SERVICE
BY
PUBLICATION
(CONSTRUCTIVE SERVICE)
How Done
(1) By leaving copies of the summons at the
defendants residence with some person of
suitable age and discretion residing
therein; or
(2) By leaving the copies at defendants office
or regular place of business with some
competent person in charge thereof
Requisites
It is necessary to establish the following:
(1) Indicate the impossibility of service of
summons within a reasonable time;
(2) Specify the efforts exerted to locate the
defendant; and
(3) State that the summons was served upon:
(a) a person of sufficient age and
discretion who is residing in the
address, or
(b) a person in charge of the office or
regular place of business, of the
defendant.
(4) It is likewise required that the pertinent
facts proving these circumstances be
stated in the proof of service or in the
officers return. [Sps. Tiu v. Villar (2012)]
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Exceptions:
(1) Motion for judgment on the pleadings.
(2) Motion for summary judgment.
(3) Motion for judgment on demurrer to
evidence.
G. MOTIONS IN GENERAL
Motion an application for relief other than by
a pleading
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Exceptions:
(1) If the motion is one which the court can
hear ex parte.
(2) If the court is satisfied that the rights of the
adverse parties are not affected by the
motion.
(3) If the party is in default; such a party is not
entitled to notice.
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Exception:
(1) Lack of jurisdiction over subject matter
(2) Litis pendentia
(3) Res judicata
(4) Prescription
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J. MOTION TO DISMISS
A remedy of the defendant, which attacks the
entire pleading and seeks its dismissal based
on:
(1) Grounds which are patent on the face of
the complaint;
(2) Defenses available to the defendant at the
time of the filing of the complaint
Period to File
General Rule: Within the time for, but before
filing of, the answer to the complaint or
pleading asserting a claim
Exceptions:
(1) For special reasons which may be allowed
even after trial has begun, a motion to
dismiss may be filed
(2) The court has allowed the filing of a motion
to dismiss where the evidence that would
constitute a ground for dismissal was
discovered during trial
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Exceptions:
(1) Upon the grounds stated in Rule 9, Sec. 1;
(2) Due to fault of the plaintiff, under Rule 17,
Sec. 3;
(3) Pursuant to Sec. 4, Revised Rule on
Summary Procedure.
J.1. GROUNDS
(1) Lack of jurisdiction over the defendants
person
(2) Lack of jurisdiction over the subject matter
of the claim
(3) Improper venue
(4) Plaintiffs lack of legal capacity to sue
(5) Litis pendentia
(6) Res judicata
(7) Prescription
(8) Failure to state a cause of action
(9) Extinguished claim
(10) Unenforceable claim under the Statute of
Frauds
(11) Non-compliance
with
a
condition
precedent for filing claim
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V. LITIS PENDENTIA
Requisites
(1) Identity of parties, or at least such as
representing the same interest in both
actions;
(2) Identity of rights asserted and relief prayed
for, the relief being founded on the same
facts; and
(3) Identity of the two cases such that
judgment in one would amount to res
judicata on the action under consideration
[Film Development Council of the
Philippines v. SM Prime Holdings, Inc.
(2013)]
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A matter of time
Statutory
Applies in law
Based on fixed time
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A matter of equity
Not statutory
Applies in equity
Not based on fixed
time
Prescription
Laches
Concerned with the Concerned with the
fact of delay
effect of delay
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admissions
or
evidence presented
and with prejudice
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No cause of action
Insufficiency of factual
basis for the action
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Motion to Dismiss
Grounded
on
preliminary
objections
May be filed by any
defending
party
against whom a claim
is asserted in the
action
Should be filed within
the time for but prior
to the filing of the
answer
of
the
defending party to
the
pleading
asserting the claim
against him
If denied, defendant
must file an answer,
or else he may be
declared in default
If granted, plaintiff
may appeal or if
subsequent case is
not barred, he may
re-file the case
Demurrer to Evidence
Based on insufficiency
of evidence
May be filed only by
the defendant against
the complaint of the
plaintiff
May be filed for the
dismissal of the case
only after the plaintiff
has completed the
presentation of his
evidence
If denied, defendant
may present evidence
If granted, plaintiff
appeals and the order
of
dismissal
is
reversed, defendant
loses his right to
present evidence
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K. DISMISSAL OF ACTIONS
K.1. DISMISSAL
PLAINTIFF
UPON
NOTICE
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BY
as
an
Effect on Counterclaim:
If counterclaim has been pleaded by defendant
prior to service upon him of plaintiffs motion
for dismissal, dismissal shall be limited to the
complaint
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Effect on Counterclaim:
Defendant is granted the choice to prosecute
that counterclaim in either the same or a
separate action
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L. PRE-TRIAL
Pre-Trial is a mandatory conference and
personal confrontation before the judge
between the parties and their respective
counsel, called by the court after the joinder of
issues in a case or after the last pleading has
been filed and before trial, for the purpose of
settling the litigation expeditiously or
simplifying the issues without sacrificing the
necessary demands of justice.
Pre-trial is Mandatory
Mandatory nature is addressed to both court
and parties:
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Primary Objective
Pre-trial is primarily intended to make certain
that all issues necessary to the disposition of a
case are properly raised.
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failure to answer
Court
renders
Court may render
judgment based on
judgment
without
the
evidence
receiving evidence
presented ex parte
Judgment by Default
Judgment Ex Parte
Relief awarded must Relief awarded may
be the same in nature be of different nature
and amount as prayed and amount from the
for in the complaint
relief prayed for
When we say that a defendant is in default it
speaks of his failure to file responsive pleading
and not his non-appearance at pre-trial.
Remedies of Non-suited Party
(1) For a non-suited plaintiff:
Since the dismissal is with prejudice, it
has the effect of an adjudication on the
merits.
The proper remedy of the plaintiff is
appeal, not certiorari [Chingkoe v.
Republic (2013)]
Record of Pre-Trial
The pre-trial proceedings shall be recorded.
Upon termination of such proceedings, the
court shall issue the pre-trial order. [Rule 18,
Sec. 7]
Parties shall file and serve their respective pretrial briefs, ensuring receipt by adverse party at
least 3 days before the date of the pre-trial.
It is mandatory for parties to file their pre-trial
briefs as failure shall have the same effect as
failure to appear at the pre-trial. [Rule 18,
Sec.6]
Contents
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Possibility
of
an
amicable settlement
as
an
important
objective [Sec. 2(a)]
The sanctions for nonappearance
are
imposed upon the
plaintiff
and
the
defendant [Sec. 4]
A pre-trial brief is
specifically required
to be submitted [Sec.
6]
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Criminal Case [Rule
118]
Ordered by the court
and no motion is
required from either
party [Sec. 1]
Ordered by the court
after
arraignment,
and within 30 days
from the date the
court
acquired
jurisdiction over the
person of the accused
Sec. 1]
Possibility of amicable
settlement of criminal
liability not among its
purposes [ Sec. 1]
Sanctions
are
imposed upon the
counsel
for
the
accused
or
the
prosecutor [Sec. 3]
A pre-trial brief is not
specifically required.
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L.7.
ALTERNATIVE
RESOLUTION
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DISPUTE
Different Kinds:
(1) Domestic Arbitration an arbitration that
is not international; governed by RA 876
(Arbitration Law) [RA 9285, Sec. 32]
(2) International Arbitration An arbitration is
international if:
The parties to an arbitration
agreement have, at the time of the
conclusion of that agreement, their
places of business in different States; or
One of the following places is situated
outside the State in which the parties
have their places of business [Article 3,
Model Law on International Commercial
Arbritration]
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PRE TRIAL
NO SETTLEMENT
Agreements
made by parties;
Amendments to
pleading;
Schedule of Trial
FAILURE
APPEAR
TO
AMICABLE
SETTLEMENT
If defendant is
absent, court may
hear evidence of
plaintiff ex parte
If
plaintiff
is
absent when so
required
to
attend, court may
dismiss the case
TRIAL
If evidence is
insufficient
to
prove plaintiffs
cause of action or
defendants
counterclaim,
court rules in
favor of either
one or dismisses
the case
COURT
RENDERS
DECISION
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M. INTERVENTION
A proceeding in a suit or an action by which a
third person is permitted by the court to make
himself a party, either:
(1) Joining plaintiff in claiming what is sought
by the complaint;
(2) Joining with defendant in resisting the
claims of the plaintiff; or
(3) demanding something adverse to both of
them. [Herrera]
EFFECTED BY:
intervenor
is
an
PLEADINGS-IN-INTERVENTION
(1) Complaint-in-intervention If intervenor
asserts a claim against either or all of the
original parties.
(2) Answer-in-intervention If intervenor
unites with the defending party in resisting
a claim against the latter.
(3) Answer to complaint-in-intervention [Rule
19, Sec. 4] - It must be filed within 15 days
from notice of the order admitting the
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complaint-in-intervention,
unless
different period is fixed by the court.
N. SUBPOENA
A process directed to a person requiring him:
(1) To attend and to testify at the hearing or
the trial of an action, or at any
investigation conducted by competent
authority, or for the taking of his
deposition; or
(2) To bring with him any books, documents,
or other things under his control [Rule 21,
Sec. 1]
Subpoena
An order to appear
and testify or to
produce books and
documents
May be served to a
non-party
Needs tender of
kilometrage,
attendance fee and
reasonable cost of
production fee
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Summons
An order to answer
complaint
Served
on
defendant
the
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Exception:
Provisions regarding the compelling of
attendance [Sec. 8] and contempt [Sec. 9] do
not apply where:
(1) Witness resides more than 100km from his
residence to the place where he is to testify
by the ordinary course of travel [viatory
right]; or
(2) Permission of the court in which the
detention prisoners case is pending was
not obtained
Formalities
(1) The original is exhibited to the person
served;
(2) A copy is delivered to him; and
(3) Tender is made to him of the following:
(a) fees for one days attendance;
(b) kilometrage allowed by the Rules; and
(c) in the case of subpoena duces tecum,
the reasonable cost of producing the
books,
documents
and
things
demanded.
GROUNDS
(1) For quashing subpoena duces tecum:
(a) That the subpoena is unreasonable
and oppressive;
(b) That the articles sought do not appear
prima facie relevant to the issues;
(c) That the applicant does not advance
the cost for the production of the
articles desired; or
(d) That there was no tender of witness
fees and kilometrage.
(2) For quashing subpoena ad testificandum
(a) That the witness is not bound thereby,
or
(b) That there was no tender of witness
fees and kilometrage.
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(2) Without leave
been served
Note: The taking
confined in prison
whether before or
[Rule 23, Sec. 1]
O. MODES OF DISCOVERY
Discovery a device employed by a party to
obtain information about relevant matters on
the case from the adverse party in the
preparation for trial [Riano]
Purpose: to permit mutual knowledge before
trial of all relevant facts gathered by both
parties so that either party may compel the
other to disgorge facts whatever he has in his
possession [RIano citing C.J.S.]
REMEDIAL LAW
of court after answer has
of deposition of a person
is always by leave of court,
after service of the answer.
Modes of Discovery
(1) Depositions pending actions [Rule 23]
(2) Depositions before action or pending
appeal [Rule 24]
(3) Interrogatories to parties [Rule 25]
(4) Admission by adverse party [Rule 26]
(5) Production or inspection of documents or
thing [Rule 27]
(6) Physical and mental examination of
persons [Rule 28]
O.1 DEPOSITIONS
[Rules 23-24]
Deposition taking of testimony out of court of
any person, whether party to the action or not
but at the instance of a party to the action
[Riano]
Disqualification by interest
[Rule 23, Sec. 13]
No deposition shall be taken before the
following:
(1) A relative by affinity or consanguinity
within the 6th degree of any party;
(2) An employee or counsel of any of the
parties
(3) A relative within the same degree or
employee of such counsel;
(4) Any person financially interested in the
action
Kinds of Depositions
(1) Depositions pending action [Rule 23]
called deposition de bene esse
(2) Depositions before action or pending
appeal [Rule 24] called depositions in
perpetuam rei memoriam
I. TAKING OF DEPOSITION
When Depositions Pending Action Taken [Rule
23, Sec. 1]
(1) With leave of court
(a) after jurisdiction has been obtained
over any defendant or over the property
which is the subject of the action, but
(b) before an answer has been served
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Objections to
the form of
written
interrogatories
under Sec. 25
and 26
In the manner
in
which
testimony
is
transcribed or
in
the
preparation
under Sec. 17,
19, 20, and 26
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obviated or removed if
promptly prosecuted are
waived
Unless
reasonable
objection thereto is made
at the time of taking the
deposition
Waived
Unless served in writing
upon
the
party
propounding them within
the time allowed for
serving succeeding cross
or other interrogatories
and within 3 days after
service
of
last
interrogatories authorized
Waived
Unless
motion
to
suppress depositions or
some part thereof is made
with
reasonable
promptness after such
defect is ascertained, or
with due diligence might
have been ascertained
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petition
for
the
purpose
of
perpetuating their testimony.
(2) Notice and service to each person named in
the petition as an expected adverse party,
together with a copy of the petition, stating
that the petitioner will apply to the court,
at a time and place named therein, for the
order described in the petition.
(a) At least 20 days before the date of the
hearing, the court shall cause notice
thereof to be served on the parties and
prospective deponents in the manner
provided for service of summons.
Use of Deposition
If a deposition to perpetuate testimony is taken
under this Rule, or if, although not so taken, it
would be admissible in evidence, it may be
used in any action involving the same subject
matter subsequently brought in accordance
with the provisions of sections 4 and 5 of Rule
23. [Rule 24, Sec. 6]
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I. SERVICE OF INTERROGATORIES TO
PARTIES
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Grounds
(1) The interrogatories require:
(a) statements of conclusions of law;
(b) answers to hypothetical questions or
opinion;
(c) mere hearsay; or
(d) matters not within the personal
knowledge of the interrogated party
(2) Frivolous interrogatories need not be
answered. [Herrera]
II. ANSWERS
Written interrogatories and the answers
thereto must both be filed and served. [Rule 25,
Sec. 2] Hence, the answers may constitute as
judicial admissions [Rule 129, Sec. 4]
[Rule 26]
Rule 26, as a mode of discovery, contemplates
interrogatories seeking clarification in order to
determine the truth of the allegation in a
pleading.
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Purposes:
(1) To allow one party to request the adverse
in writing to admit certain material and
relevant matters which most likely will not
be disputed during the trial.
(2) To avoid unnecessary inconvenience to the
parties in going through the rigors of proof,
before the trial, a party may request the
other to:
(a) Admit the genuineness of any material
and relevant document described in
and exhibited with the request; or
(b) Admit the truth of any material and
relevant matter of fact set forth in the
request [Rule 26, Sec. 1]
How made:
(1) A party files and serves upon any other
party a written request
(2) Copies of the documents shall be served
with the request unless already furnished
Contents
(1) Denying specifically the matters of which
an admission is requested, or
(2) Setting forth in detail the reasons why he
cannot truthfully either admit or deny
those matters
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I. PROCEDURE
Subpoena Duces
Tecum
A
means
of
compelling
A mode of discovery
production
of
evidence
Limited to the parties May be directed to
of the action
non-party
Issued upon motion
May be issued upon ex
with notice to the
parte application
adverse party
May be asked before May be asked only
and/or during trial
during trial
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Must
cause
CIVIL PROCEDURE
show
O.5.
PHYSICAL
OR
EXAMINATION OF PERSONS
REMEDIAL LAW
MENTAL
[Rule 28]
Applicable in an action in which the mental or
physical condition of a party is in controversy.
[Rule 28, Sec. 1]
I. PROCEDURE
[Rule 28, Sec. 2]
A motion for the examination is filed in the
court where the action is pending:
(1) showing good cause for the examination;
(2) with notice to the party to be examined,
and all other parties; and
(3) specifying the time, place, manner,
conditions, scope, and person conducting
the examination.
Sanctions
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Form of
Refusal
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Form of
Sanctions
Refusal
admit under application, issue an order
Rule 26
requiring the other party to
[Sec. 4]
pay him reasonable expenses
incurred, including attorneys
fees
PROVIDED
that
party
requesting
proves
genuineness
of
such
document or truth
UNLESS court finds:
(1) There were good reasons
for denial
(2) Admissions sought were
of no importance
The court on motion and
notice may:
(1) Strike out all or any part
of any pleading of
Failure
of
disobedient party
party
to (2) Dismiss the action or
attend
or
proceeding or any part
serve answers
thereof
to
written (3) Enter a judgment by
interrogatories
default
against
[Sec. 5]
disobedient party
(4) Order
payment
of
reasonable
expenses
incurred by the other
including attorneys fees
Sanctions
without
substantial
justification, court may
require proponent to pay
refusing
party
the
reasonable
expenses
incurred in obtaining the
order
Refusal to be
Sworn [Sec. 2]
Refusal
to
answer
designated
questions or
refusal
to
produce
documents or
to submit to
physical
or
mental
examination
[Sec. 3]
Refusal
to
REMEDIAL LAW
P. TRIAL
Trial is the judicial process of investigating
and determining the legal controversies,
starting with the production of evidence by the
plaintiff and ending with his closing arguments
[Acosta v. People [1962]].
A hearing is a broader term. It is not confined
to the trial and presentation of the evidence
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I.
ADJOURNMENTS
POSTPONEMENTS
AND
Limitations
The court has no power to adjourn a trial for:
(1) A period longer than one month for each
adjournment; or
(2) More than 3 months in all
Exceptions
A civil case may be adjudicated upon without
the need for trial in any of the following cases:
(1) Where the pleadings tender no issue at all,
judgment on the pleadings may be directed
by the court [Rule 34]
(2) Where from the pleadings, affidavits,
depositions and other papers, there is
actually no genuine issue, the court may
render a summary judgment [Rule 35]
(3) Where the parties have entered into a
compromise or an amicable settlement
either during the pre-trial or while the trial
is in progress [Rule 18; Art. 2028, Civil Code]
(4) Where the complaint has been dismissed
with prejudice, or when the dismissal has
the effect of an adjudication on the merits
[Rule 16, Sec. 5; Rule 17, Sec. 3; Rule 7, Sec.
5]
(5) Where the case falls under the Rules on
Summary Procedure, and
(6) Where the parties agree, in writing, upon
the facts involved in the litigation and
submit the case for judgment on the facts
agreed upon, without the introduction of
evidence. [Rule 30, Sec. 6] [Riano]
Notice of Trial
Upon entry of a case in the trial calendar, the
clerk shall notify parties the date of its trial,
ensuring receipt of the notice at least 5 days
before the trial date. [Rule 30, Sec. 1]
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Stipulation in Criminal
Cases
Must be signed by
both counsel and
accused
Strict; it must always
be in writing
Reverse Order
The defendant presents evidence ahead of the
plaintiff, when the defendant relies in his
Answer only upon an affirmative defense.
Where the answer of the defendant admitted
the obligation stated in the complaint,
although special defenses were pleaded, the
plaintiff has every right to insist that it was for
the defendant to come forward with evidence
to support his special defenses. [Yu v. Mapayo]
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Severance definition
When proper: A single action has a number of
claims, counterclaims, cross-claims, thirdparty complaints or issues which may be
separately tried for convenience, or to avoid
prejudice.
V. DELEGATION OF RECEPTION OF
EVIDENCE
General Rule: The judge of the court where the
case is pending shall personally receive the
evidence to be adduced by the parties. [Rule 30,
Sec. 9]
Exception: The court may delegate the
reception of evidence to its clerk of court who is
a member of the bar in:
1. Default hearings;
2. Ex parte hearings;
3. Cases where parties agree in writing.
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Powers of Commissioner
(1) Exercise power to regulate the proceeding
before him
(2) Do all acts and take all measures
necessary or proper for the efficient
performance of his duties
(3) Issue subpoena and subpoenas duces
tecum
(4) Swear witnesses
(5) Rule upon the admissibility of evidence,
unless otherwise provided in the order of
reference
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Q. DEMURRER TO EVIDENCE
A species of motion to dismiss that may be
invoked based on insufficiency of evidence [i.e.
upon the facts and the law the plaintiff has
shown no right to relief]. [Rule 33, Sec. 1]
Contents:
(1) Report in writing upon the matters
submitted to him by the order of reference
(2) When his powers are not specified or
limited, he shall set forth his findings of
fact and conclusions of law
(3) He shall attach all exhibits, affidavits,
depositions, papers, and transcripts, if any,
of testimonial evidence presented before
him
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Civil Cases
Criminal Cases
demurrer, defendant demurrer
will
present
his (1) filed with leave,
evidence
accused
may
present evidence.
(2) filed
without
leave,
accused
can no longer
present evidence.
If
prosecutions
If plaintiffs evidence
evidence insufficient,
insufficient, court will
court
will
grant
grant demurrer by
demurrer
by
dismissing
the
rendering judgment
complaint
of acquittal.
The judgment of
dismissal
is Judgment of acquittal
appealable;
If is not appealable;
reversed, court will Double jeopardy sets
decide
based
on in.
plaintiffs evidence.
A. JUDGMENTS IN GENERAL
REMEDIAL LAW
Criminal Cases
Court may motu
proprio dismiss the
action for insufficiency
of prosecutions
evidence, after it has
rested its case. [Rule
119, Sec. 23]
May be filed with or
without leave of court.
If court denies the
[Riano]
(1) Court or tribunal must be clothed with
authority to hear and determine the matter
before it. [Acosta v. COMELEC (1998)]
(2) Court must have jurisdiction over the
parties and the subject matter.
(3) Parties must have been given an
opportunity to adduce evidence in their
behalf. [Acosta v. COMELEC (1998)]
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(4)
(5)
(6)
(7)
(8)
(9)
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Part of the judgment that is subject to
execution,
as
constituting
the
judgment of the court
B. CONTENTS OF A JUDGMENT
B.1. FORM OF JUDGMENT
[Rule 36, Sec. 1]
(1) In writing
(2) Personally and directly prepared by the
judge
(3) Stating clearly & distinctly the facts and
the law on which it is based
(4) Signed by the judged
(5) Filed with the clerk of court.
[Riano, Herrera]
(1) Opinion of the Court
Also called the body, or the ratio
decidendi
Contains the findings of facts and
conclusions of law
(2) Disposition of the case
Also called the dispositive portion, or
the fallo
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D. SUMMARY JUDGMENTS
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When Filed
(1) If sought by the claimant only after the
answer is served; [Rule 35, Sec. 1]
(2) If sought by the defendant at any time
[Rule 35, Sec. 2]
Note: Filing of a motion for summary judgment
does not interrupt the running of the period for
filing an answer. Hence, the movant must also
file a Motion for Extension of Time to File
Answer.
Procedure [Rule 35, Sec. 3]
(1) Movant files a motion for summary
judgment with supporting affidavits,
depositions or admission
(2) Service to the adverse party at least 10
days the hearing
(3) Adverse party may serve opposing
affidavits, depositions or admissions at
least 3 days before the hearing
(4) Hearing Court shall determine if a
genuine issue as to any material fact exists,
and if the movant is entitled to a summary
judgment as a matter of law
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JUDGMENT BY
DEFAULT
Based on the complaint and
evidence, if presentation is
required
Available to plaintiff
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Rendition of Judgment
Pronouncement of the judgment in open court
does not constitute rendition of judgment. It is
the filing of the signed decision with the clerk of
court that constitutes rendition. Even if the
judgment has already been put in writing and
signed, it is still subject to amendment if it has
not yet been filed with the clerk of court. [Ago v.
CA]
G. AMENDMENTS TO JUDGMENT
General Rule: Once a judgment becomes final
and executory, such judgment can no longer be
disturbed, altered, or modified
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V. Post-Judgment
Remedies
Exceptions:
(1) Correction of clerical errors [Filipinas
Palmoil Processing, Inc. v. Dejapa]
(2) Nunc Pro Tunc entries [Filipinas Palmoil
Processing, Inc. v. Dejapa]
(3) Whenever circumstances transpire after
finality of the decision, rendering its
execution unjust and inequitable. [Apo
Fruits Corp. v. Land Bank of the Phils.]
(4) In cases of special and exceptional nature,
when it is necessary in the interest of justice
to direct modification in order to harmonize
the disposition with the prevailing
circumstances [Industrial Timber Corp. v.
Ababon]
(5) In case of void judgments [Panlilio v. Garcia]
(6) Where there is a strong showing that a
grave injustice would result from an
application of the Rules [Almuete v. People]
(7) When there are grounds for annulment of
judgment or petition for relief [Gochan v.
Mancao]
Amended/clarified
judgment
An
entirely
new
decision
and
supersedes
the
original judgment
Court
makes
a
thorough study of the
original judgment and
renders the amended
and clarified judgment
only after considering
all the factual and
legal issues
REMEDIAL LAW
A.1. GROUNDS
I. GROUNDS FOR MOTION FOR NEW
TRIAL
[Rule 37, Sec. 1]
(1) Fraud, accident, mistake, excusable
negligence (FAME) subject to the
following conditions:
(a) Which ordinary prudence could not have
guarded against; and
(b) By reason of which such aggrieved party
has probably been impaired in his rights
Supplemental decision
Does not take the
place of or extinguish
the original judgment
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MOTION
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FOR
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Partial grant
The court may order a new trial or grant
reconsideration as to such issues if severable
without interfering with the judgment or final
order upon the rest. [Rule 37, Sec. 7]
Note:
(1) This fresh period becomes significant only
when a party opts to file a motion for new
trial or reconsideration
(2) This rule does not refer to the period within
which to appeal from the order denying the
motion for reconsideration but to the period
within which to appeal from the judgment
itself.
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or final order is
contrary to the
evidence or law
Available even on Available against the
appeal but only on the judgments or final
ground
of
newly orders or both the trial
discovered evidence
and appellate courts
Both are prohibited motions under Summary
Procedure
B. APPEALS
Nature
(1) Not a natural right nor a part of due process
(2) It is merely a statutory right, and may be
exercised only in the manner and in
accordance with provisions of the law. It
must comply with the requirements; failing
to do so, the right to appeal is lost
(3) Once granted, appeals become part of due
process and should be liberally applied in
favor of the right to appeal
Motion for
Reconsideration
Grounds:
Grounds:
(1) Fraud, accident, (1) Damages awarded
mistake,
or
are excessive
excusable
(2) That evidence is
negligence
insufficient
to
(2) Newly discovered
justify the decision
evidence
or final order
(3) That decision or
final
order
is
contrary to law
Second motion from
the same party is
prohibited.
May be allowed so
long as based on
Prohibition
applies
grounds not existing
only to motions for
or available at the
reconsideration
of
time the first motion
final
orders
or
was made
judgments; allowed
for
interlocutory
orders
The court may amend
If granted, original the judgment or final
judgment or final order, it finds:
order is vacated, and (1) that
excessive
the case stands for
damages
have
trial de novo.
been awarded; or
(2) that the judgment
Motion for New Trial
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Interlocutory Order
Does not dispose of a
case completely but
leaves
something
more to be decided
upon.
Not appealable except
through a petition for
certiorari under Rule
65
privilege
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MODES OF APPEAL
Ordinary Appeal
Appeal by writ of error
Case is decided by RTC in its
original jurisdiction
Appealed to the CA
File notice of appeal or
record of appeal with court
of origin and give a copy to
adverse party
PERIOD OF APPEAL
Period to Appeal
Extensions
Effect of MR or
MNT
MTC to RTC
By notice of appeal; within 15 days from
No extensions allowed
notice of judgment or final order
Fresh period to
appeal
from
denial MR or MNT
By record of appeal;
within 30 days from notice of judgment
or final order
RTC to CA
By notice of appeal;
Within 15 days from notice of judgment No extensions allowed
or final order
By record of appeal;
within 30 days from notice of judgment
or final order
MTC to RTC to CA
The CA may grant a 15 day
extension.
15 days from notice of the judgment or
No further extension shall be
final order OR from denial of MR or
granted except for the most
MNT
compelling reasons and in no case
longer than 15 days.
QJA to CA
15 days from notice of the award, The CA may grant a 15 day
judgment, final order or resolution or extension. No further extension
from date of last publication if required shall be granted except for the
107
Fresh period to
appeal
from
denial MR or MNT
Fresh period to
appeal
from
denial MR or MNT
Fresh period to
appeal
from
denial MR or MNT
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Period to Appeal
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Effect of MR or
MNT
Extensions
If
uncontested,
judgment is entered
in the book of
entries
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V. PERFECTION OF APPEAL
Two Scenarios:
(1) If the MTC dismissed the case without
trial on the merits, the RTC may:
(a) Affirm, if the ground of dismissal is
lack of jurisdiction over the subject
matter; If the RTC has jurisdiction, it
shall try the case on the merits as if
the case was originally filed therein
(b) Reverse, in which case, it shall
remand the case for further
proceedings
By Record on Appeal
(1) Record on appeal is required for the
following cases:
(a) Special proceedings
(b) In such other cases where multiple
appeals are allowed
(2) Form and contents of the record on
appeal: (Rule 41, Sec. 6)
(a) Within 15 days from perfection of
appeal, clerk of court or the branch
clerk of the lower court shall transmit
to the RTC:
(i)
Original record or record on
appeal
(ii)
Together with transcripts and
exhibits
(b) Clerk shall make a certification that
the documents are complete
(c) Clerk shall also furnish the parties a
copy of his letter of transmittal of the
records to the appellate court
(3) Copy is served on the adverse party
(4) Payment in full of docket fees and other
lawful fees
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showing
the
I. PERIOD TO APPEAL
[Rule 41, Sec. 2]
(1) 15 days from notice of judgment or final
order appealed from
(2) 30 days from notice of judgment or final
order where a record on appeal is
required
(3) 48 hours from notice of judgment or final
order appealed from in habeas corpus
cases
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(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
REMEDIAL LAW
Subject index
Assignment of Errors
Statement of the Case
Statement of Facts
Statement of Issues
Arguments
Relief
Copy of judgment or final order appealed
from
Appellees Brief
Filed within 45 days from receipt of
appellants brief
Manner of filing is similar to that in
appellants brief
Contents:
(1) Subject index
(2) Statement of Facts
Statement of Facts
(3) Arguments
and
Counter-
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Grounds
(1) Appeal was taken out of time
(2) Non-payment of docket and other lawful
fees within the reglementary period
REMEDIAL LAW
Contents:
(1) Full names of the parties without
impleading the lower courts or judges
thereof
(2) Specific
material
dates
showing
timeliness of appeal
(3) Concise statement of:
(a) Matters involved
(b) Issues raised
(c) Specification of errors of fact or law,
or both
(d) Reasons or arguments relied upon
(4) A certificate of non-forum shopping must
also be attached
Extension of period
The CA may grant an additional 15 days
within which to file the petition for review
Conditions
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees
and other lawful fees as well as deposit
for costs
(3) These two were done within the
reglementary period
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Extension of Period
The CA may grant an additional 15 days
within which to file the petition for review
Conditions:
(1) There was a motion filed to this effect
(2) There was payment in full of docket fees
and other lawful fees as well as deposit
for costs
(3) These two were done within the
reglementary period
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(b) And
such
other
supporting
documents
(3) Copy of Comment is served on petitioner
with proof of such service filed with the
CA
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Jurisdiction of the CA
(1) CA has jurisdiction over orders, directives,
and decisions of the Office of
Ombudsman
in
administrative
disciplinary cases only
(2) It cannot review orders, directives,
decisions in criminal and nonadministrative cases
Jurisdiction of the SC
(1) In criminal cases, ruling of Ombudsman
shall be elevated to the SC via Rule 65
(2) In cases in which it is alleged that the
Ombudsman has acted with grave abuse
of discretion amounting to lack or excess
of jurisdiction, a special civil action of
certiorari under Rule 65 may be filed with
this Court to set aside the Ombudsmans
order or resolution. [Nava v. NBI (2005)]
B. 13.
APPEAL
OMBUDSMAN
FROM
REMEDIAL LAW
THE
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the
exercise
of exercises
original
appellate jurisdiction jurisdiction under its
and power of review
power of control and
supervision
over
proceedings of lower
courts
Based on questions
of law
Involves review of
judgment, award or
final order on merits
Petitioner
and
respondent
are
original parties to
the action
REMEDIAL LAW
Certiorari as SCA
[Rule 65]
Raises the issue of
whether the lower
court acted without
or in excess of
jurisdiction, or with
grave
abuse
of
discretion
May be directed
against
an
interlocutory order of
the court prior to
appeal from the
judgment or where
there is no appeal or
any other plain,
speedy, or adequate
remedy
May be filed not later
than 60 days from
notice of judgment,
order or resolution
sought to be assailed
Does not stay the
challenged
proceedings, unless a
writ of preliminary
injunction or TRO is
issued
The parties are the
aggrieved
party
against the lower
court
or
quasijudicial agency as
prevailing parties
A filing of a MR is a
condition precedent,
subject to certain
exceptions
Higher
court
Outline of Procedure
RTC, Sandiganbayan, CTA en banc, or CA renders a
decision
If given due
memoranda
course,
parties
may
submit
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QUESTIONS
LAW
OF QUESTIONS
OF
FACT
Doubt as to the truth
Doubt as to what the or falsehood of facts,
law is on certain or as to probative
facts
value of the evidence
presented
If the appellate court
can determine the
The
determination
issue
without
involves evaluation or
reviewing
or
review of evidence
evaluating
the
evidence
Query involves the
calibration of the
whole
evidence
considering mainly
Can
involve the credibility of
questions
of witnesses, existence,
interpretation of law and relevancy of
with
respect
to specific surrounding
certain set of facts
circumstances and
relation to each other
and
the
whole
probabilities of the
situation
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Other Grounds
(1) By agreement of the parties (i.e.
amicable settlement)
(2) Where appealed case has become moot
or academic
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WHERE TO FILE
RULE 40
Filed with the MTC
Appeal to the RTC
RULE 41
Filed with the RTC
Appeal to the CA
RULE 42
RULE 43
RULE 45
PETITIONS FOR REVIEW
Discretionary; No records are elevated unless the court decrees it
Filed with the appellate court
Appeals to the SC from a
judgment or final order or
resolution
of
the
CA,
Appeals from awards, Sandiganbayan, CTA en banc,
judgments, final orders RTC (original jurisdiction) or such
Appeal from a decision of
or resolution of or other courts as may be
the RTC rendered in the
authorized by any quasi- authorized by law
exercise of its appellate
judicial agency in the Decisions, final orders, or
jurisdiction
exercise of its quasi- resolutions of the CA in any case,
judicial functions
regardless of the nature of the
action or proceedings involved,
may be appealed to the SC by
filing a petition for review,
RULE 42
Filed with the CA
Appeal to the CA
RULE 43
Filed with the CA
Appeal to the CA
Questions
of
fact,
Questions of fact or mixed
Questions of fact, Questions
Questions of fact or mixed
Questions of law, or
questions of fact and law
of law, or Mixed questions of
questions of fact and law
Mixed questions of fact
both
and law
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RULE 45
Filed with the SC
Appeal to the SC
Only Questions of Law
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TIME FOR FILING
RULE 40
CIVIL PROCEDURE
RULE 41
RULE 42
RULE 43
Within 15 days from:
(1) Notice of award,
Within 15 days from notice of
BY NOTICE OF APPEAL
judgment,
final
decision, or
Within 15 days after notice of judgment or final order
order, or resolution;
Within 15 days from notice of
(2) Date of publication, if
denial of petitioners motion
BY RECORD ON APPEAL
publication
is
for
new
trial
or
Within 30 days from notice of judgment or final order by filing
required by law for its
reconsideration
a notice of appeal and a record on appeal
effectivity;
(3) Denial of petitioners
MNT or MR
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RULE 45
Within 15 days from:
(1) Notice of judgment, final
order, or resolution appealed
from, or
(2) Notice of denial of motion for
new trial or reconsideration
filed in due time after notice
of judgment
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Applies
to
Applies
to
judgments,
final
judgments or final
orders and other
orders only
proceedings
Grounds:
(1) FAME; or
(2) Newly
Ground: FAME
discovered
evidence
Filed:
(1) within 60 days
from knowledge
Filed within the time
of judgment; and
to appeal
(2) within 6 months
from entry of
judgment
If
denied,
order
If denied, order of
denying a petition for
denial
is
not
relief
is
not
appealable; hence,
appealable; remedy
remedy is appeal
is appropriate civil
from judgment
action under Rule 65
Legal remedy
Equitable remedy
Motion need not be Petition must be
verified
verified
C. 1. NATURE
A legal remedy whereby a party seeks to set
aside a judgment rendered against him by a
court whenever he was unjustly deprived of a
hearing or was prevented from taking an
appeal because of fraud, accident, mistake,
or excusable negligence (FAME). [Quelnan v.
VHF Phils
A petition for relief from judgment is an
equitable remedy allowed only in exceptional
cases when there is no other available or
adequate remedy. When a party has another
remedy available, either motion for new trial
or appeal, and he was not prevented by
FAME from filing such motion or taking such
appeal, he cannot avail himself of this
petition. [Trust International Paper Corp. v.
Pelaez]
C. 3. WHEN PROPER
The petition can be availed of when the
judgment or final order has been entered or
when any other proceeding is thereafter
taken against the petitioner in any court
through FAME. [Rule 38, Section 1]
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C. 4. WHERE FILED
Rule 38 is not an independent action but a
continuation of the old case. Hence, it is filed
with the same court and same branch which
decided the case.
C. 5. GROUNDS
[Rule 38, Sec. 1-2]
(1) When judgment or final order is entered
or any other proceeding is thereafter
taken against petitioner through FAME
(2) When petitioner has been prevented
from taking an appeal by FAME
Note: Extrinsic fraud is that fraud which the
prevailing party caused to prevent the losing
party from being heard on his action or
defense. Such fraud concerns not the
judgment itself but the manner in which it
was obtained. [AFP Mutual Benefit
Association, Inc. v. RTC-Marikina City (2011)]
Reckoning Points
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Where Filed
Judgment, Final
Order or Resolution
of the RTC
Filed with the CA
CA has exclusive and
original jurisdiction
over said action
under Sec. 9 (2) of
BP 129
The CA may dismiss
the case outright; it
has the discretion on
whether or not to
entertain
the
petition
Judgment, Final
Order or Resolution
of the MTC, etc.
Filed with the RTC
RTC as a court of
general jurisdiction
under Sec. 19(6) BP
129
The RTC has no such
discretion,
it
is
required to consider it
as an ordinary civil
action
D. ANNULMENT OF JUDGMENTS
OR
FINAL
ORDERS
AND
RESOLUTIONS
D. 1. NATURE
An action for annulment of judgment is a
remedy in law independent of the case where
the judgment sought to be annulled was
rendered. The purpose is to have the final
and executory judgment set aside so that
there will be a renewal of litigation. [Alaban v.
CA ]
D. 2. GROUNDS
[Rule 47, Sec. 2]
(1) Extrinsic Fraud
A fraudulent act committed by the
prevailing party outside of the trial of
the case, whereby the defeated party
was prevented from exhibiting fully
his side of the case by deception
When Proper
The remedy may not be invoked where the
party has availed himself of the remedy of
new trial, appeal, petition for review, or other
appropriate remedy and lost, or where he has
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(2)
(3)
(4)
(5)
D. 4. PROCEEDINGS
Two stages in the disposition of the petition:
(1) A preliminary evaluation of the petition
for prima facie merit (Sec. 5)
The rule allows the CA to dismiss the
petition outright as in special civil
actions
If prima facie merit is found, petition
is given due course and summons is
served on respondent
Lack of
Jurisdiction
Before barred
4 years from
by laches or
discovery
estoppel
Extrinsic Fraud
Period
for
Filing
REMEDIAL LAW
D. 5. EFFECT OF JUDGMENT OF
ANNULMENT
[Rule 47, Sec. 7]
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E. COLLATERAL
JUDGMENTS
ATTACK
REMEDIAL LAW
OF
E. 2. VOID JUDGMENT
A void judgment is no judgment at all. It
cannot be the source of any right nor the
creator of any obligation. All acts performed
pursuant to it and all claims emanating from
it have no legal effect. Hence, it can never
become final and any writ of execution based
on it is void. [Polystyrene Manufacturing v.
Privatization Management (2007)]
E. 1. ATTACKING A JUDGMENT
Direct Attack v. Collateral Attack
Direct attack upon a judgment is an
action or proceeding to annul it, this
being the main object of the proceeding
Collateral attack upon a judgment is one
made to obtain relief other than the
setting aside of the judgment, the attack
on the judgment itself being incidental
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Remedies
If the reglementary period for appeal has not
yet lapsed, some remedies are New Trial and
Reconsideration [Rule 37], Appeal [Rules 4045], Petition for Relief [Rule 48], and Other
Appropriate Remedies such as Certiorari may
also be used.
VI. Execution,
Satisfaction and Effect
of Judgments
Jurisprudential Basis
Remedial Law Jurisprudence such as Spouses
Benatiro v. Heirs of Cuyos, (2008) and Agustin
v. Bacalan, (1985) on the matter of void
judgment particularly refer to Rule 47 as a
remedy against a void judgment. This
remedy, however, should be availed of only
when the appropriate remedies are no longer
available without fault on the part of the
petitioner.
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B. 1. EXECUTION AS A MATTER OF
RIGHT
[Rule 39, Sec. 1]
How Done
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B. 2. DISCRETIONARY EXECUTION
[Rule 39, Sec. 2]
Discretionary
Execution
May issue before the
lapse of period to
appeal, and even
during appeal
Discretionary upon
the court
Upon showing of
good reason for
execution
Execution as a
Matter of Right
Period to appeal has
already lapsed and
no
appeal
is
perfected
Ministerial duty of
the court
Provided there are no
supervening events
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When Filed
The motion for discretionary execution shall
be filed with the trial court while
(1) it has jurisdiction over the case; and
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Exceptions:
(1) Where there is ambiguity, the body of the
opinion may be referred to for purposes
of construing the judgment because the
dispositive part of a decision must find
support from decisions ratio decidendi
(2) Where extensive and explicit discussion
and settlement of the issue is found in
the body of the decision
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C. 4. ENTRY OF SATISFACTION OF
JUDGMENT
Satisfaction of Judgment is entered by the
clerk of court in the court docket and in the
execution book upon:
(1) Return of the writ of execution showing
full satisfaction of the judgment;
(2) Filing of an admission to the satisfaction,
executed and acknowledged in the same
manner as a conveyance of real property
by the judgment creditor or his lawyer; or
(3) Upon indorsement of such admission by
the judgment creditor or his attorney on
the face of the record of the judgment.
[Rule 39, Sec. 45]
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Procedure
(1) The judgment obligor have the option to
immediately choose which property or
part thereof may be levied upon,
sufficient to satisfy judgment
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Procedure
(1) Levy shall be made by serving notice
upon:
(a) The person owing such debts, or
(b) Having in his possession or control
such credits to which judgment
obligor is entitled
(2) Garnishment to cover only such amount
as will satisfy judgment and lawful fees
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Examples
(1) A judgment in mandamus to reinstate
petitioner as chief clinic of the hospital.
[Vital-Gozon v. CA (1992)]
(2) A judgment directing defendant to
remove a fence from a certain place is a
special judgment. [Marquez v. Marquez,
73 Phil. 74]
C. 7. EXECUTION
JUDGMENTS
OF
REMEDIAL LAW
SPECIAL
Procedure
(1) A writ of execution shall be issued, with a
certified true copy of the judgment
attached.
(2) Ordinary
tools
and
implements
personally used by him in his trade,
employment, or livelihood;
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E.
PROCEEDINGS
WHERE
PROPERTY CLAIMED BY THIRD
PERSONS
Rule 39, Sec. 16, and other provisions
providing a mode for recovering property
alleged to have been wrongfully taken by
sheriff pursuant to a writ of execution or
other process, refer to a stranger to an action.
[Tillson v. CA (1991)]
Procedure
(1) Claimant files application
E. 2. TERCERIA
Independent of the foregoing, a third-party
claimant may also avail of the remedy of
Terceria. Terceria is provided in Sec. 16, Rule
39.
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E. 3. REINVINDICATORY ACTION
Procedure
(1) Claimant serves on the officer making
levy an affidavit of his title and a copy
thereof to judgment creditor
Procedure
(1) He must institute an action, distinct and
separate from that which the judgment is
being enforced, with the court of
competent jurisdiction
(2) No need to file a claim in the court which
issued a writ. The latter is not a condition
sine qua non for the former.
(3) In such proper action, validity and
sufficiency of title of claimant will be
resolved.
(4) A writ of preliminary injunction against
sheriff may be issued
F. RULES ON REDEMPTION
When Available
(1) For personal property there is NO right
of redemption as the sale is absolute
(2) For real property right of redemption is
available
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Unlike
a
judgment
obligor,
such
redemptioner must prove his right to redeem
by producing the ff. documents:
(1) The documents necessary to establish his
right to redeem:
(a) A copy of the judgment or final order
under which he claims the right to
redeem, certified by the clerk of the
court wherein judgment or final order
was entered;
(b) If he redeems upon a mortgage or
other lien, a memorandum of the
record thereof, certified by the
Register of Deeds; or
(c) An original or certified copy of any
assignment necessary to establish
his claim; and
(2) An affidavit executed by him or his agent
showing the amount then actually due on
the lien [Sec. 30]
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in
Fixed
Monthly
G. REMEDIES OF JUDGMENT
CREDITOR IF JUDGMENT NOT
SATISFIED
[Rule 39, Secs. 3643]
G. 1. EXAMINATION OF JUDGMENT
OBLIGOR
When Available
(1) At any time after return is made, when it
shows that judgment remains unsatisfied
in whole or in part; and
(2) Upon proof to the satisfaction of the
court which issued the writ, that a
natural person or juridical entity has
property of the judgment obligor or is
indebted to him
When Available
At any time after return is made, when it
shows that judgment remains unsatisfied in
whole or in part
Procedure
Judgment Obligee entitled to an order from
the court which rendered the judgment to
appear and be examined concerning his
property and income before the court or a
commissioner assigned by the court.
Procedure
Court may, by an order, require such natural
person, or any officer or member of such
juridical entity, to appear and be examined
before the court or a commissioner
concerning such property or debt.
Limitations
(1) No judgment obligor shall be required to
appear before a court or commissioner
outside the province or city in which such
obligor resides or is found. [Rule 39, Sec.
36]
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Effect
Service of order shall bind all credits due to
judgment debtor and all money and property
in the possession or control of such person,
from the time of service.
REMEDIAL LAW
Immutability of Judgments
A judgment that has acquired finality
becomes immutable and unalterable, and
may no longer be modified in any respect,
even if the modification is meant to correct
erroneous conclusions of fact and law, and
whether it be made by the court that
rendered it or by the Highest Court of the
land. [PNB v. Spouses Maranon (2013)]
Rationale:
(1) to avoid delay in the administration of
justice, and procedurally to make orderly
the discharge of judicial business
(2) to put an end to judicial controversies at
the risk of occasional errors
OF
APPOINTMENT OF RECEIVER
The court may appoint a receiver for the
property of judgment debtor not exempt
from execution, and
may also forbid
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BAR BY FORMER
JUDGMENT
Requires identity
of
parties,
subject matter,
and causes of
action
Absolute Bar to:
(a) all matters
directly
adjudged; and
(b) those that
might have been
adjudged
Claim Preclusion
REMEDIAL LAW
CONCLUSIVENESS OF
JUDGMENT
There is only identity of
parties and subject
matter
Cause of action are
different
Judgments
order
or
final
Conclusive as to
Conclusive
as
to
matters
directly
adjudged and actually
litigated
Issue Preclusion
Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF SUBJECT MATTER
(c) IDENTITY OF CAUSE OF ACTION
General Rule: For res judicata to apply, trial
must be made on the merits of the case.
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as
a
precedent in
subsequent
litigation
between
other parties
Requisites:
(1) A FINAL judgment or order
(2) JURISDICTION over the subject matter
and the parties by the court rendering it
(3) Judgment UPON MERITS
(4) Between the TWO CASES, there is:
(a) IDENTITY OF PARTIES
(b) IDENTITY OF ISSUES
will, generally,
be followed by
the same court
and
by
all
courts of lower
rank
in
subsequent
cases where the
same
legal
issue is raised
Res
Judicata
The ruling
in
one
case
is
carried
over
to
another
case
between
the same
parties
REMEDIAL LAW
Stare Decisis
Once a point of
law has been
established by
the court, that
point of law
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VII.
PROVISIONAL
REMEDIES
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A. PRELIMINARY ATTACHMENT
The provisional remedy in virtue of which a
plaintiff or other party may, at the
commencement of the action or at any time
thereafter, have the property of the adverse
party taken into the custody of the court as
security for the satisfaction of any judgment
that may be recovered. [Davao Light v CA
(1991)]
Purposes
(1) To seize the property of the debtor in
advance of final judgment and to hold it
for purposes of satisfying the said
judgment.
(2) To enable the court to acquire jurisdiction
over the action by the actual or
constructive seizure of the property in
those instances where personal service of
summons on the creditor cannot be
effected. [PCIB v. Alejandro (year)]
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Methods
to
Procure
Preliminary
Attachment
(1) Writ may be prayed for in the complaint
itself
providing
the
allegations
warranting its issuance
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A.5
MANNER
PROPERTY
ATTACHING
PRIOR
SERVICE
OF
Applicants Bond
The party applying for the order must give a
bond executed to the adverse party
(1) Amount is fixed by the court in its order
granting the issuance of the writ
A.4
RULE
ON
CONTEMPORANEOUS
SUMMONS
REMEDIAL LAW
OR
OF
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action
to recover
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Procedure
(1) Pay to judgment obligee the proceeds of
sale of perishable property
(2) If there is any balance that remains due,
sell property as may be necessary to
satisfy the balance if enough remains in
the sheriff or those of the clerk
(3) Collection of property of garnishee and
proceeds paid to judgment oblige
without need of prior permission to file
action but may be enforced in the same
action
(4) Return must be made within 10 days
from receipt of writ
B. PRELIMINARY INJUNCTION
B.1 DEFINITIONS AND DIFFERENCES
Injunction is a judicial writ, process, or
proceeding whereby a party is ordered to do
or refrain from doing a particular act
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Preliminary Injunction
B.2 REQUISITES
Independent
Action
Purpose
To prevent future injury and maintain the
status quo (i.e. the last actual, peaceable,
uncontested status which preceded the
pending controversy) for [Knecht v. CA,
(1993)]
The injunction should not establish new
relations between the parties but merely reestablish the pre-existing relationship
between them.
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Effectivity of TRO
o Effectivity is not extendible. No court
shall have authority to extend or renew
the same on the ground for which it was
issued
o If issued by the CA effective for 60
days from service
o If issued by SC effective until further
orders
TRO ISSUED BY
EXECUTIVE JUDGE
(MULTI-SALA) OR
ORDINARY JUDGE
(SINGLE-SALA)
Matter is of extreme
urgency and that
grave injustice and
irreparable
injury
will arise unless
immediately issued
REMEDIAL LAW
TRO ISSUED BY
ORDINARY JUDGE
If it appears that
great or irreparable
injury would result
A summary hearing
May be issued ex
must be done before
parte
issuance
Good for 20 days
Good for 72 hours
including first 72
hours
Issued
before
Issued after raffling
raffling
Issued
after
Issued ex parte
summary hearing
Upon the expiration of the non-extendible
period, the TRO is automatically terminated.
No judicial declaration necessary.
B.19
RULE
ON
CONTEMPORANEOUS
SUMMONS
PRIOR
SERVICE
OR
OF
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Exception:
Where the summons could not be served
personally or by substituted service despite
diligent efforts, or the adverse party is a
resident of the Philippines temporarily
absent therefrom or is a nonresident thereof,
the requirement of prior or contemporaneous
service of summons shall not apply. [Rule 58,
Sec.4] The executive judge of a multiple-sala
court or the presiding judge of a single sala
court may issue ex parte a TRO effective for
only 72 hours from issuance if the matter is of
extreme urgency and the applicant will suffer
grave injustice and irreparable injury.
However, he shall immediately comply with
the provisions of Rule 38, Sec. 4 as to service
of summons and the documents to be served
therewith. [Rule 38, Sec. 5]
Purpose
The purpose of a receivership as a provisional
remedy is to protect and preserve the rights
of the parties during the pendency of the
C. RECEIVERSHIP
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C.2 REQUISITES;
BEFORE ISSUANCE
Procedure
REMEDIAL LAW
REQUIREMENTS
Specific Cases
(1) If a spouse without just cause abandons
the other or fails to comply with his/her
obligations to the family, the aggrieved
spouse may petition the court for
receivership. [Family Code, Article 101]
(2) The court may appoint a receiver of the
property of the judgment obligor; and it
may also forbid a transfer or other
disposition of, or any interference with,
the property of the judgment obligor not
exempt from execution. [Rule 39, Sec. 41]
(3) After the perfection of an appeal, the trial
court retains jurisdiction to appoint a
receiver of the property under litigation
since this matter does not touch upon the
subject of the appeal. [Rule 41, Sec. 9;
Acua v. Caluag (1957)]
(4) After final judgment, a receiver may be
appointed as an aid to the execution of
judgment. [Philippine Trust Company v.
Santamaria (1929)]
(5) Appointment of a receiver over the
property in custodia legis may be allowed
when it is justified by special
circumstances, as when it is reasonably
necessary to secure and protect the
rights of the real owner. [Dolar v.
Sundiam (1971)]
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Powers of a Receiver
(1) Bring and defend in such capacity actions
in his own name with leave of court
(2) Take and keep possession of the property
in controversy
(3) Receive rents
(4) Collect debts due to himself as receiver
or to the fund, property, estate, person,
or corporation of which he is the receiver
(5) Compound for and compromise the same
(6) Make transfers
(7) Pay outstanding debts
(8) Divide the money and other property that
shall remain among the persons legally
entitled to receive the same
(9) Generally, to do such acts respecting the
property as the court may authorize
(10) Invest funds in his hands, only by order of
the court upon the written consent of all
the parties. [Rule 59, Sec. 6]
Receivers Bond
As a precondition before entering into his
duties, receiver must file a bond.
o Executed to the person against whom the
application is presented
o Amount: in such sum as the court may
direct.
o Undertaking: To the effect that he will
faithfully discharge his duties and obey
the orders of the court (Rule 59, Sec. 4)
DAMAGES
DAMAGES ARISING
RESULTING FROM AFTER
APPOINTMENT
APPOINTMENT
Damages
which
arise
due
to
Damages resulting
receivers
from appointment
negligence
or
mismanagement
The right rests on
The right is statutory general principles of
law
The damages may
Liability rests on the
be caused before the
mismanagement or
receiver qualifies or
negligence
of
takes possession of
receiver
the property
The applicants bond The receivers bond
is responsible
is responsible
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C.5 TERMINATION
REPLEVIN
The purpose is to
recover personal
property capable
of manual delivery
from
the
defendant
Procedure
(1) The court shall determine that the
necessity for a receiver no longer exists
o Motu proprio, or on motion of either
party
(2) Due notice shall be given to all interested
parties
(3) A hearing shall be conducted
(4) The court shall then settle the accounts
of the receiver
(5) The court directs delivery of the funds
and other property in his possession to
the person adjudged to be entitled to
receive them
(6) The court will then order the discharge of
the receiver
The
property
either belongs to
the plaintiff or one
over which the
plaintiff has a
right of possession
May be sought
only when the
principal action is
for the recovery of
personal property
Can be sought
only
when
defendant is in
actual
or
constructive
possession of the
property
Cannot be availed
of when property
is in custodia legis
Effect
(1) Settle accounts of receiver
(2) Delivery of funds to person entitled
(3) Discharge of receiver
(4) Receiver
entitled
to
reasonable
compensation to be taxed as costs
against defeated party
REMEDIAL LAW
PRELIMINARY
ATTACHMENT
The purpose is to have
the property put in the
custody of the court to
secure the satisfaction
of the judgment that
may be rendered in
favor of the plaintiff at
some future time
The property does not
belong to the plaintiff
but to the defendant
Available
even
if
recovery of property is
only incidental to the
relief sought
May be resorted to even
if
property
is
in
possession of a third
person
D. REPLEVIN
Replevin is the provisional remedy seeking
for the possession of the property prior to the
determination of the main action for replevin.
Replevin may also be a main action with the
ultimate goal of recovering personal property
capable of manual delivery wrongfully
detained by a person. In this sense, it is a suit
in itself
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(2)
(3)
(4)
(5)
REMEDIAL LAW
D.3
AFFIDAVIT
REDELIVERY BOND
AND
BOND;
D.2 REQUISITES
Procedure
[Rule 60, Sec. 2 and 3]
(1) An application is filed at the
commencement of the action or at any
time before answer of defendant
Applicants Bond
(1) Executed to the adverse party
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Redelivery Bond
This is executed to the applicant and filed
where the action is pending
o Amount: double the value of the property
as stated in the affidavit of the applicant
o Undertaking:
(a) The delivery thereof to the applicant,
if such delivery be adjudged, and
(b) The payment of such sum to him as
may be recovered against the
adverse party
D.4
SHERIFFS
IMPLEMENTATION
DUTY
REMEDIAL LAW
IN
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Effect
The sheriff shall not be bound to keep
property under replevin or deliver property to
the applicant, unless the applicant files a
bond approved by the court to indemnify the
third person, in an amount not less than the
value stated in the affidavit of the applicant.
No claim for damages for the taking or
keeping of the property may be enforced
against the bond unless the action is filed
within 120 days from filing of the bond.
D.6 JUDGMENT
[Rule 60, Sec. 9]
After trial of the issues, the court shall
determine who has the right of possession to
and the value of the property and shall
render judgment in the alternative for the
delivery thereof to the party entitled to the
same, or for its value in case delivery cannot
be made, and also for such damages as
either party may prove, with costs.
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PURPOSE
SUBJECT
MATTER
Preliminary Attachment
To have the property of adverse
party attached as security for
satisfaction of judgment that
may be recovered in cases
falling under Sec. 1, Rule 57
To enable the court to acquire
jurisdiction over the action by
the actual or constructive
seizure of the property in those
instances
where
personal
service of summons on creditor
cannot be effected
Preliminary Injunction
Particular act/s
Receivership
Replevin
Personal
capable
delivery
of
property
manual
At the commencement of
the action
BUT before the filing of
answer
File
affidavits
applicants bond
and
Not Required
May be issued ex parte
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1.
167
1.
were
Applicant is owner of
the property claimed
or is entitled to
possession
2. Property is wrongfully
detained
by
the
adverse party
3. Property
is
not
distrained or taken for
tax assessment or fine
pursuant to law, or
seized (if seized, that
the
property
is
exempt)
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VIII.
SPECIAL
ACTIONS
CIVIL
Initiated by complaint
REMEDIAL LAW
Some initiated by
complaint, some by
petition.
A. IN GENERAL
B.
A.1 NATURE
o Special civil actions are civil actions primarily
governed by special rules, and secondarily by
rules for ordinary civil actions. [See Rule I, sec.
3]
o Since a civil action in general is one by which
a party sues another for the enforcement of a
right, or the prevention or redress of a wrong,
a special civil action is generally brought or
filed for the same purpose. [RIANO]
of
ORDINARY
ACTION
CIVIL SPECIAL
CIVIL
ACTION
Also governed by
ordinary rules but
Governed by ordinary
subject to specific
rules
rules
prescribed
[Rule 1, sec. 3]
The concept of cause
Must be based on a
of action in an
cause of action which
ordinary action does
means
that
the
not always fit in a
defendant has violated
special civil action
plaintiffs rights
(e.g. interpleader)
Venue is determined by Venue is generally
either the residences of governed by the
the parties when action general rules on
is personal or by the venue, except as
location of the property otherwise indicated
when the action is real. by special rules.
[Rule 4, secs. 1 and 2]
[REGALADO]
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INTERPLEADER v. INTERVENTION
B. INTERPLEADER
B.1 NATURE
o A remedy whereby a person who has
property in his possession or has an
obligation to render wholly or partially,
without claiming any right in both, comes to
court and asks that the defendants who have
made conflicting claims upon the same
property or who consider themselves entitled
to demand compliance with the obligation
be required to litigate among themselves in
order to determine who is entitled to the
property or payment or the obligation
[Beltran v. PHHC (1969)]
o The peculiar characteristic of an interpleader
is that there is NO CAUSE OF ACTION on the
part of the plaintiff but only a threat of cause
of action.
INTERPLEADER
INTERVENTION
Original action
Intervenor claims an
interest that is adverse
to at least one of the
existing parties, or will
be adversely affected
by judgment in favor of
either of the existing
parties
Defendants
to
a
Defendants are sued complaint-into be impleaded
intervention are parties
to a pending suit
PURPOSES
(1) To compel conflicting claimants to
interplead and litigate their several claims
among themselves. [Rule 62, Sec. 1]
(2) To protect a person against double
vexation in respect of one liability [Beltran,
supra]
N.B.
o Interpleader applies regardless of nature of
subject matter. [Wack Wack Golf & Country
Club v. Lee Won (1976), interpreting RULES OF
COURT (1964), Rule 63, sec. 1, which was
virtually unchanged by the now Rule 62, sec.
1]
o Interpleader cannot be availed of to resolve
the issue of breach of undertakings made by
defendants, which should be resolved in an
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5 days in any event from notice of
denial.
PROCEDURE
(1) A complaint is filed.
(2) Upon filing of complaint, the court issues
an Order (Sec. 2) requiring conflicting
claimants to interplead with one another
(3) Summons shall then be served upon the
conflicting claimants with a copy of the
complaint and the order to interplead (Sec.
3).
(4) Each claimant has a 15-day period to file
any of the following (Sec. 5)
(a) Answer, which must also be served
upon the other conflicting claimants.
(b) Motion to dismiss (Sec. 4). If filed,
period to answer is
o Grounds:
(1) Same as in Rule 16, plus
(2) Impropriety of interpleader
action
o If motion is denied, movant may file
his answer within the remaining
period but it shall not be less than
C. DECLARATORY
SIMILAR REMEDIES
RELIEFS
AND
C.1 Nature
o Subject matter: Deed, will, contract, or
other written instrument, statute, executive
order, or regulation, or ordinance
o Issue is the validity or construction of the
subject matter. This is the only question that
may be raised in declaratory relief. [Atlas
Consolidated Mining & Devt Corp. v. CA
(1990)]
o Relief: Declaration of the petitioners rights
and duties
o Purpose: To relieve the litigants of the
common law rule that no declaration of
rights may be judicially adjudged unless a
right has been violated and for the violation
of which relief may be granted.
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CHARACTERISTICS
o The concept of a cause of action does not
strictly apply to declaratory relief since this
SCA presupposes that there has been no
breach or violation of the instruments
involved. However, a breach or violation must
be impending, imminent, or at least
threatened. [Velarde v. Social Justice Society
(2004)]
o Hence, unlike other judgments, judgment in
an action for declaratory relief does not
essentially entail any execution process.
[REGALADO]
REMEDIAL LAW
WHERE TO FILE
Jurisdiction: Exclusive and original jurisdiction is
with the RTC (BP Blg. 129, sec. 19, i.e. incapable
of pecuniary estimation). SC has no original
jurisdiction over declaratory relief petitions, but
has appellate jurisdiction over them. [Liga ng
mga Barangay National v. City Mayor of Manila
(2004)]
Venue: General rule on venue applies.
PARTIES
(1) All persons who have or claim any interest
which would be affected by the declaration
[Rule 63, Sec. 2]
(2) If action involves the validity of a
statute/executive order/regulation/other
governmental regulation, the Solicitor
General shall be notified. [Rule 63, Sec. 3]
(3) If action involves the validity of a local
government
ordinance,
the
prosecutor/attorney of the LGU involved
shall be notified. [Rule 63, Sec. 4]
171
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172
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o
CIVIL PROCEDURE
REMEDIAL LAW
RULE 64
RULE 65
Directed
to
any
tribunal, board, or
officer
exercising
judicial or quasijudicial functions
PROCEDURE
(1) A verified petition is filed (Sec. 5) with
payment of docket and lawful fees (Sec. 4)
(2) Service of petition to the Commission and
parties concerned (Sec. 5)
(3) SC shall act on the petition:
(a) It may dismiss the petition:
(i) Due to failure to comply with the
form and content requirements in
Sec. 5;
(ii) If SC finds the petition insufficient
in form and substance (Sec. 6);
(iii) If it was filed manifestly for delay
(Sec. 6); or
(iv) Questions
raised
are
too
unsubstantial
to
warrant
proceedings (Sec. 6).
(b) If sufficient in form and substance, the
SC will require the respondents to file
their Comments (Sec. 6) within 10 days
from notice
(4) SC may also require oral argument or
submission of memoranda (Sec. 9)
(5) The case is then submitted for decision
(Sec. 9)
E.
CERTIORARI,
MANDAMUS
PROHIBITION,
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CERTIORARI
PROHIBITION
Directed against an entity or Directed against an entity or person
person exercising judicial or exercising judicial, quasi-judicial, or
quasi-judicial functions
ministerial functions
MANDAMUS
Directed against an entity
or
person
exercising
ministerial functions
Entity or person is alleged
Entity or person is alleged to have acted:
to have:
(1) Without jurisdiction
(1) Neglected a ministerial
(2) In excess of jurisdiction; or
duty; or
(3) With grave abuse of discretion amounting to lack or excess of (2) Excluded another from a
jurisdiction
right or office
PURPOSE:
PURPOSE:
PURPOSE
For respondent to: (1) do the
To have respondent desist from
To annul or nullify a proceeding
act required, and (2) pay
further proceeding
damages
Covers discretionary and ministerial Covers
Covers discretionary acts
acts
ministerial acts
Corrective remedy:
Negative and preventive remedy
May be affirmative, positive,
To correct usurpation of To restrain or prevent the said
or negative
jurisdiction
usurpation
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justifiable reasons.
Does not require a prior motion for
reconsideration
Stays the judgment appealed from
REMEDIAL LAW
PROHIBITION
Special civil action
Directed to the court itself, commanding it to cease
from the exercise of a jurisdiction to which it has no
legal claim
INJUNCTION
MANDAMUS
Ordinary civil action
Special civil action
Directed against a tribunal, corporation,
Directed against a litigant
board, or officer
Purpose is to either refrain the defendant from Purpose is for the tribunal, corporation,
performing an act or to perform not necessarily a legal board, or officer, to perform a ministerial
and ministerial duty
and legal duty
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E.2 REQUISITES
Requisites of Certiorari:
REMEDIAL LAW
Requisites of Mandamus:
(1) There must be a well-defined, clear
legal right or duty. [Valmonte v.
Belmonte (1989)]
o The duty must be enjoined by law;
hence, a contractual duty cannot be
enforced by mandamus. [Province of
Pangasinan
v.
Reparations
Commission (1977)]
(2) Respondent must be exercising a
ministerial duty. [Roble Arrastre, Inc. v.
Villaflor (2006)]
o A duty which is absolute and
imperative and involves merely its
execution
o However, mandamus will lie to
compel the discharge of the
discretionary duty itself but not to
control the discretion to be exercised.
In other words, mandamus can issue
to require action only but not specific
action. [Assoc. of Small Landowners
in the Phils., Inc. v. Sec. of Agrarian
Reform (1989)]
DISCRETIONARY
ACT
MINISTERIAL ACT
One
which
an
officer or tribunal
performs in a given
state of facts, in a
prescribed manner,
in obedience to the
mandate of a legal
authority, without
regard to or the
exercise of his own
judgment upon the
propriety
or
impropriety of the
act done [Roble
Arrastre, Inc. v.
Villaflor (2006)]
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Independent Action
An original action for Certiorari, Prohibition,
or Mandamus is an independent action, and
as such:
(1) Does not interrupt the course of the
principal action;
(2) Does not affect the running of the
reglementary periods involved in the
proceedings;
(3) Does not stay the execution of judgment
unless a TRO or writ of preliminary
injunction has been issued. [see Rule 65,
sec. 7]
Injunctive Relief
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(3)
(4)
(5)
Exceptions:
(1) When a writ of preliminary injunction or
TRO is issued: The burden is on
petitioner to show that there are
meritorious grounds, i.e. there is an
urgent necessity in order to prevent
serious damage; or
(2) Judicial courtesy: Even if there is no
injunction issued, lower court should
defer to higher court where there is a
strong probability that the issues before
the higher court would be rendered
moot and moribund as a result of the
continuation of the proceedings in the
court
of
origin.
[Republic
v.
Sandiganbayan (2006)]
(6)
(7)
(8)
(9)
REMEDIAL LAW
passed upon by the lower court, or are
the same as those raised and passed
upon in the lower court
Where there is urgent necessity for the
resolution of the question and any
further delay would prejudice the
interests of the Government
Where under the circumstances, an
MR would be useless, as where the
court had already indicated that it
would
deny
any
motion
for
reconsideration of its questioned order
Where petitioner was deprived of due
process and there is extreme urgency
for relief
Where, in a criminal case, relief from
an order of arrest is urgent and
granting such relief by trial court is
improbable
Where the proceedings in the lower
court are a nullity for lack of due
process
Where the proceeding was ex parte or
in which the petitioner had no
opportunity to object
Where the issue raised is one purely of
law or where public interest is involved
RELIEFS, IN GENERAL
Petitioner may be entitled to:
(1) Injunctive relief Court may may issue
orders expediting the proceedings, and
it may also grant a temporary
restraining order or a writ of preliminary
injunction for the preservation of the
rights of the parties [Rule 65, sec. 7]
(2) Incidental reliefs as law and justice may
require [Rule 65, secs. 1 and 2]
(3) Other reliefs prayed for or to which the
petitioner is entitled [Rule 65, sec. 8]
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PRAYERS
(1) In certiorari
(a) That the judgment be rendered
annulling
or
modifying
the
proceedings of such tribunal, board
or officer; and
(b) Granting such incidental reliefs as
law and justice may require [Rule 65,
sec. 1]
(2) In prohibition
(a) That the judgment be rendered
commanding the respondent to
desist from further proceedings in
the action or matter specified; or
(b) Otherwise granting such incidental
reliefs as law and justice may
require [Rule 65, sec. 2]
(3) In mandamus
(a) That the judgment be rendered
commanding
the
respondent,
immediately or at some other time
to be specified by the court, to do
the act required to be done to
protect the rights of the petitioner;
and
(b) To pay the damages sustained by
the petitioner by reason of the
wrongful acts of the respondent
[Rule 65, sec. 3]
REMEDIAL LAW
ACQUISITION OF JURISDICTION
In original actions for Certiorari, Prohibition,
Mandamus, when does the court acquire
jurisdiction over the person of the
respondent? It depends:
(1) If action is filed with the RTC: Follow
rules on ordinary civil actions.
Jurisdiction is acquired by:
(a) Service of summons to respondent
or
(b) By his voluntary appearance in
court
(2) If the action is filed with the SC/CA: Court
acquires jurisdiction over respondents
by:
(a) Service on them of its orders
indicating its initial action on the
petition or
(b) By their voluntary submission to
such jurisdiction
PROCEDURE
A petition for certiorari/
prohibition is filed
mandamus/
When filed:
(a) Not later than 60 days from notice of
judgment/order/resolution
(b) If a motion for reconsideration/new trial
is filed, the 60-day period shall be
counted from notice of denial of motion.
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JURISDICTION
(1) Original jurisdiction to issue the writ of
quo warranto is vested in the SC, CA, and
RTC. [CONST. art. VIII, sec. 5(1); B.P. Blg.
129, secs. 9 and 21]
(2) Actions for quo warranto against
corporations (as opposed to associations
without authority) with regard to
franchises and rights granted to them, as
well as the dissolution of corporations
now fall under the jurisdiction of the RTC
[P.D. No. 902-A, in relation to R.A. No.
F. QUO WARRANTO
F.1. NATURE
Literally means by what authority; a
prerogative writ by which the court can call
upon any person to show by what warrant he
holds a public office or exercises a PUBLIC
franchise.
Filed by whom
(11) Solicitor General
or
Public
Prosecutor, (a) in
behalf
of
the
Republic [Rule 66,
sec. 2] or (b) upon
the request or Any voter
relation of another
person [sec. 3]; or
(12) Individual
claiming to be
entitled to a public
office or position
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usurped
or
unlawfully held or
exercised
by
another [sec. 5]
Where filed
[Jurisdiction]
(1) If
against
election of a
[Venue]
Member
of
(1) Commenced
by
Congress,
Sol. Gen.: (a) RTC
Regional,
Manila, (b) CA or
Provincial
or
(c) SC;
City
Officer:
(2) Otherwise: (a) RTC
COMELEC
with
jurisdiction
(2) If against a
over
territorial
municipal
or
area
where
barangay
respondent
officer:
resides, (b) CA or
appropriate
(c) SC
RTC or MTC,
respectively.
F.5.
WHEN
INDIVIDUAL
COMMENCE AN ACTION
MAY
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G. EXPROPRIATION
G.1. NATURE
(a)
(b)
(c)
(d)
(e)
IN
182
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Purposes
Value
G.5.
WHEN
PLAINTIFF
CAN
IMMEDIATELY
ENTER
INTO
POSSESSION OF THE REAL PROPERTY,
IN RELATION TO R.A. NO. 8974
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RULE 67,
SEC. 2
Scope
Expropriation
in general,
for both real
and personal
properties
Government
For writ of is required to
possession make
to issue
preliminary
deposit
Equal
to
assessed
Amount of
value of real
payment or
property for
deposit
purposes of
taxation
REMEDIAL LAW
RA 8974
Only
when
national
government
expropriates
real property
for
national
government
infrastructure
projects
Government is
required
to
make
immediate
payment
to
owner
upon
filing
of
complaint
Equal to the
market value
of the property
as stated in
the
tax
declaration or
current
relevant zonal
value of BIR,
whichever is
higher,
and
value
of
improvements
and/or
structures
using
replacement
cost method
184
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G.7. DEFENSES
[RULE 67, SEC. 3]
No Objection to or
Defense against
Taking
CIVIL PROCEDURE
AND
OBJECTIONS
REMEDIAL LAW
With Objection to or
Defense against
Taking
G.8. ORDER OF
[RULE 67, SEC. 4]
EXPROPRIATION
Remedy
of
Defendant:
Order
of
condemnation is final, not interlocutory.
Hence, it is appealable.
N.B. Appeal shall not prevent court a quo
from determining just compensation.
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G.10. APPOINTMENT OF
COMMISSIONERS; COMMISSIONERS
REPORT; COURT ACTION UPON
REPORT
Order of Appointment:
(1) Court appoints not more than 3
commissioners to ascertain and report to
the court the just compensation for the
property
(2) Contents: Order shall
(a) Designate the time and place of the
first session of hearing to be held by
commissioner
(b) Specify the time within which their
report shall be submitted to court
(3) Procedures:
(a) Copies of the Order shall be served
on the parties
(4) Objections to appointment:
(a) Filed with the court within 10 days
from service
(b) Objections shall be served to all
commissioners
(c) Resolved within 30 days after all
commissioners shall have received
copies
186
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Rights: Either:
(1) Right to retain: Applies when plaintiff
immediately entered upon the property
after making the required deposit (and
therefore already has possession of the
property), supra.
(2) Right to enter and appropriate: Applies
when plaintiff does not take immediate
possession of the property.
Appropriation must be for the public use
or purpose defined in the judgment.
Conditions for exercise:
(1) Upon payment by plaintiff to defendant
of compensation fixed by judgment, with
legal interest from taking; or
(2) After tender to defendant of the said
amount and payment of the costs.
N.B. If defendant or counsel absent
themselves from the court or decline the
amount tendered, the amount shall be
deposited in court and shall have the
effect of actual payment.
OF
UP LAW BOC
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(2)
(3)
REMEDIAL LAW
(4)
(5)
H.1. NATURE
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H.6.
DEFICIENCY
JUDGMENT;
INSTANCES WHEN COURT CANNOT
RENDER
DEFICIENCY
JUDGMENT
[RULE 68, SEC. 6]
REMEDIAL LAW
VS.
Extrajudicial
Foreclosure
No court intervention
necessary
Right of redemption
exists
Governed by Act 3135
No
Deficiency
There could be a
Judgment
because
Deficiency
there is no judicial
Judgment.
proceeding.
Recovery
of
Recovery of deficiency
deficiency can be
is
through
an
done
by
mere
independent action.
motion.
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Equity Of Redemption
Right of the defendant mortgagor to extinguish
the mortgage and retain ownership of the
property by paying the secured debt within the
90 to 120 day period after entry of judgment or
even after the foreclosure sale but prior to its
confirmation
Period is 90-120 days after entry of judgment
or even after foreclosure sale but prior to
confirmation
Governed by Rule 68
Right Of Redemption
Right of the debtor, his successor in interest, or
any judicial creditor of said debtor or any person
having a lien on the property subsequent to the
mortgage.
Period is 1 year from date of registration of
certificate of sale
Governed by Rule 39, sec. 29-31
Judicial Foreclosure
Extrajudicial Foreclosure
191
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I. PARTITION
I.1. NATURE
Partition is the process of dividing and
assigning the property owned in common
among the various co-owners thereof in
proportion to their respective interests in said
property.
Partition may be:
(1) Judicial Procedure is Rule 69
(2) Extrajudicial No court intervention
required
Parties
(1) The plaintiff is the person who is
supposed to be a co-owner of the
property. [RIANO]
(2) Defendants are (i) all the co-owners, who
are indispensable parties, and (ii) all
other persons having an interest in the
property [Id., citing MORAN]
192
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AND
I.8. PARTITION BY
APPOINTMENT OF
COMMISSIONERS
ACTION
UPON
REPORT
COMMISSIONERS;
COMMISSIONERS;
REPORT; COURT
COMMISSIONERS
193
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Contents of Judgment
Effects of Judgment
194
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J.
FORCIBLE
ENTRY
UNLAWFUL DETAINER
I.10. PARTITION
PROPERTY
OF
REMEDIAL LAW
AND
J.1. NATURE
Ejectment cases are summary proceedings
intended to provide an expeditious means of
protecting actual possession of property.
[Tubiano v. Razo (2000)]
Rationale: The owners of property have no
authority to use force and violence to eject
alleged usurpers who were in prior physical
possession of it. They must file the
appropriate action in court and should not
take the law in their own hands.
PERSONAL
Forcibly Entry
(Detentacion)
Unlaful Detainer
(Desahucio)
Possession of land
by defendant is
unlawful from the
beginning as he
acquires possession
by
force,
intimidation,
strategy, threat, or
stealth (FISTS).
Possession
is
inceptively
lawful
but
it
becomes
illegal by reason of
the termination of
his
right
to
possession of the
property under his
contract (express or
implied) with the
plaintiff.
No previous demand
for defendant to
vacate the premises
is necessary
Plaintiff must prove
that he was in prior
physical possession
of the premises until
he was deprived
thereof
by
defendant.
The 1-year period is
generally counted
from date of actual
entry on land.
195
Demand
jurisdictional.
is
Period is counted
from the date of last
letter of demand.
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Accion
Publiciana
Accion
Reinvindicatoria
involves
Issues is possession de Issue
Issue involves ownership
determination
of
who
has
facto
consequently, possession)
better right to possession
Real action
In personam
All cases of forcible entry
and unlawful detainer,
irrespective of the amount
of damages or unpaid
rentals sought to be
recovered
should
be
brought to the MTC.
Real action
In personam
(and
Real action
Quasi in rem
In
accion
publiciana
and
accion
reinvindicatoria:
(1) RTC has jurisdiction where the assessed
value of the property exceeds P20,000 or,
in Metro Manila, P50,000;
(2) MTC has jurisdiction if the assessed value
does not exceed said amounts. [B.P. 129,
as amended, secs. 19, 33]
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N.B.
Pleadings must be VERIFIED. [Rule 70, Sec.
4)]
What must be alleged in the complaints:
Forcible Entry
Unlawful Detainer
(1) That
plaintiff (1) That defendant is
was in prior
unlawfully
physical
withholding
possession
of
possession from
the property in
plaintiff because
litigation until
his
right
to
he was deprived
possess
had
thereof
by
expired
defendant
(2) That landlord has
(2) That
the
made a demand
dispossession
upon tenant to
was
through
comply with the
FISTS.
[N.B.
terms
of
the
First
two
contract and to
requirements
return
the
are jurisdictional
possession of the
(Abad
v.
property, and that
Farrales (2011)]
the tenant failed
(3) That
the
to satisfy the
complaint was
demand within 15
filed within 1
or 5 days, in case
year
from
of buildings
dispossession.
(3) That
the
complaint is filed
within 1 year from
last
demand.
[RIANO,
citing
Romullo
v.
Samahang
Magkakapitbahay
(2010)]
197
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Motu
Proprio
dismissal:
From
the
examination of allegations in the complaint,
the court may dismiss the case outright on
any grounds mentioned in Rule 16. [Sec. 5]
Preliminary
Conference:
Preliminary
conference shall be held not later than 30
days after filing of last answer. [Sec. 8]
N.B.
It is only where defendant fails to comply
with the demand within the periods
provided by Sec. 2 will his possession
become unlawful.
A demand to pay or vacate does not give
rise to a cause of action for unlawful
detainer. [Peas v. CA (1994)]
A person who occupies the land of
another at the latter's tolerance or
permission, without any contract
between them is necessarily bound by an
implied promise that he will vacate upon
demand, failing which, an action for
unlawful detainer may be instituted
against him. [Dakudao v. Consolacion
(1983)]
UP LAW BOC
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J.10.
RESOLVING
OWNERSHIP
REMEDIAL LAW
DEFENSE
OF
UP LAW BOC
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REMEDIAL LAW
K. CONTEMPT
K.1. NATURE
J.12.
SUMMARY
PROCEDURE,
PROHIBITED PLEADINGS
General Rule: All actions for forcible entry
and unlawful detainer shall be governed by
the summary procedure of Rule 70,
irrespective of the amount of damages or
unpaid rentals sought to be recovered. [Sec.
3]
Exceptions:
(1) In cases covered by the agricultural
tenancy laws; or
(2) When the law otherwise expressly
provides. [Sec. 3]
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According to Nature
(1) Criminal contempt: Conduct directed
against the authority and dignity of the
court or a judge acting judicially.
(2) Civil contempt: Failure to do something
ordered to be done by a court or by a
judge for the benefit of the opposing
party. [Burgos v. Macapagal-Arroyo
(2011)]
Criminal Contempt
Punitive in nature
Purpose
is
to
preserve the courts
authority and to
punish
for
disobedience of its
orders
Intent is necessary
Proof required is
proof
beyond
reasonable doubt
If
accused
is
acquitted, there can
be no appeal
REMEDIAL LAW
Direct Contempt
Indirect Contempt
Civil Contempt
Remedial in nature
Purpose is to provide
a remedy for an
injured suitor and to
coerce compliance
with an order; for the
preservation of the
rights of private
persons
Intent
is
not
necessary
Instituted by the
aggrieved party, or
his successor, or
someone who has a
pecuniary interest in
the right to be
protected
Proof required is
more than mere
preponderance
If judgment is for
respondent,
there
can be appeal
201
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Penalty
Fine not exceeding
If RTC or a court of
P2,000 and/or
equivalent or higher
Imprisonment
not
rank
exceeding 10 days
Fine not exceeding
P200 and/or
If lower court:
Imprisonment
not
exceeding 1 day
UP LAW BOC
CIVIL PROCEDURE
If
committed
against a person
or
entity
exercising quasijudicial functions
Offense
Penalty
Fine
not
exceeding
P30,000 and/or
Imprisonment
not
exceeding 6 months
Fine not exceeding P500,
and/or
Imprisonment
not
exceeding 1 month
Offender may also be
ordered
to
make
complete restitution to
the party injured by such
violation of the property
involved or such amount
as may be alleged and
proved.
If
committed
against
lower
court
If
contempt
consists
in
violation of a writ
of
injunction,
TRO, or status
quo order
Exceptions:
(1) If committed against a lower court, it
may be tried by the RTC, regardless of
the imposable penalty; or
(2) If committed against the SC, it may cause
it to be investigated by the prosecutor
and filed with the RTC, or for hearing and
recommendation where the charge
involves questions of fact [Rule 70, Sec.
5]
If against RTC, or
court
of
equivalent
or
higher rank
REMEDIAL LAW
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DECLARATORY
RELIEF
Real Property:
Personal action: All other actionsAt the election of the plaintiff
1. MTC: assessed value not more than P20,000
1. Where plaintiff or any of the principal plaintiffs reside; or
outside Metro Manila or not more than P50,000
2. Where defendant or any of the principal defendants resides; or
in Metro Manila (Sec. 33, BP 129)
3. In case of an non-resident, where he may be found
2. RTC: value exceeds P20,000 if outside Metro
Manila, or P50,000 if in Metro Manila, or
incapable of pecuniary estimation (Sec. 19,
BP129)
General rule: In the appropriate RTC, since the subject in
declaratory relief is incapable of pecuniary estimation.
Exception: Where the action is a proceeding similar to
Apply Rule 4, i.e. personal action.
declaratory relief (e.g. quieting of title to real property),
jurisdiction will depend on the assessed value of the
property, supra.
REVIEW
OF
JUDGMENTS
AND
FINAL SC
ORDERS
OF
COMELEC/COA
SC
205
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CERTIORARI
PROHIBITION
MANDAMUS
CIVIL PROCEDURE
QUO WARRANTO
EXPROPRIATION
RTC
JUDICIAL
RTC
FORECLOSURE
PARTITION
RTC
FORCIBLE ENTRY
AND UNALWFUL MTC
DETAINER
CONTEMPT
REMEDIAL LAW
206
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REMEDIAL LAW
The judgment:
(1) As may be warranted by the facts alleged in
the complaint and
(2) Limited to what is prayed for
The court may in its discretion reduce the
amount of damages and attorneys fees claimed
for being excessive or unconscionable without
prejudice to the applicability of Sec. 4, Rule 18
ROC, if there are 2 or more defendants
207
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B. KATARUNGANG PAMBARANGAY
LAW (PD 1508; RA 7160 AS
AMENDED)
B.1. SCOPE AND APPLICABILITY OF THE
RULE
RA 7610 Sec. 399-422, and 515 is applicable.
The LGC is now the governing law on
Katarungang Pambarangay. PD 1508 was
expressly repealed
Parties
Lupon
Between
actual
Lupon
of
said
residents of the same
barangay
barangay
Lupon of the barangay
Between
actual where the respondent
residents of different or
any
of
the
barangays but within respondents actually
same city/municipality resides at the option of
complainant
Involving real property Lupon of barangay
or any interest therein were the real property
208
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B.6. EXECUTION
B.7. REPUDIATION
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C.3. PROHIBITED
MOTIONS [SEC. 14]
REMEDIAL LAW
PLEADINGS
AND
C.4. APPEARANCES
The parties shall appear at the designated date
of hearing personally or through a
representative authorized under a Special
Power of Attorney to:
(1) Enter into an amicable settlement,
(2) Submit of Judicial Dispute Resolution (JDR)
and
(3) Enter into stipulations or admissions of
facts and of documentary exhibits [Sec. 16]
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REMEDIAL LAW
211
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REMEDIAL LAW
In other courts,
(1) One original (properly marked)
(2) With the stated annexes attached to it.
D.5. APPLICABILITY
This Rule applies to all courts and quasi-judicial
bodies under the administrative supervision of
the Supreme Court.
212
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REMEDIAL LAW
REMEDIAL LAW
SPECIAL PROCEEDINGS
213
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I. Special Proceedings
REMEDIAL LAW
APPLICABLE RULES
If special rules are provided, they shall apply.
But in the absence of special provisions, the
rules provided for in ordinary actions shall be,
as far as practicable, applicable in special
proceedings. [Rule 72, Sec. 2]
A.
SUBJECT
MATTER
AND
APPLICABILITY OF GENERAL RULES
NOTES
Special Proceeding
general Courts
of
jurisdiction
limited
pleadings
not
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B. JURISDICTION
A. MODES
ESTATE
OF
SETTLEMENT
REMEDIAL LAW
OF
(1) Extrajudicial
(a) If only one heir: Affidavit of Selfadjudication
(b) If two or more heirs: Deed of
Extrajudicial Settlement or Partition
[Rule 74 Sec 1]
(2) Judicial
(a) Partition [Rule 69]
(b) Summary Settlement of Estate of Small
Value [Rule 74 Sec 2]
(c) Petition for Letters of Administration
[Rule 79]
(d) Probate of a Will [Rule 75-79]
(i) Petition for Letters Testamentary; or
(ii) Petition
for
Letters
of
Administration with the will
annexed (if no named executor)
C. VENUE
(1) If Inhabitant of the Philippines at the time of
death (citizen or alien) Court of the
province where decedent resided at time of
death
(2) If inhabitant of foreign country at the time of
death Court of any province where
decedent had an estate [Rule 73 Sec 1]
Residence
215
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D. EXTENT OF JURISDICTION OF
PROBATE COURT
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REMEDIAL LAW
Modes:
(1) If sole heir: Affidavit of Self-adjudication (of
the whole estate)
(2) If more than one heir: Deed of Extrajudicial
Settlement or partition
Exception
Law allows heirs to resort to:
(1) Extrajudicial settlement of estate (decedent
died intestate and left no debt); or
(2) Summary settlement of estate (for estates of
small value)
A. EXTRAJUDICIAL SETTLEMENT OF
ESTATES
Requisites [Rule 74 Sec 1]
(1) Decedent died intestate
(2) Left no debts or heirs have already paid such
at the time of partition
(3) Heirs are all of age, minors represented by
their legal or judicial representatives
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Procedural Requirements:
(1) Petition by an interested person
alleging fact that estate does exceed
P10,000
(2) Hearing which shall be
(a) Held not less than 1 month nor more
than 3 months
(b) Counted from the date of the last
publication of a notice
(3) Notice
(a) Which shall be published once a
week for 3 consecutive weeks
(b) In a newspaper of general
circulation in the province
(c) It is not required that publication be
for a complete 21 days. What is
required is that it be published for
once a week for 3 consecutive weeks.
(4) Other notice to interested persons as
the court may direct [Rule 74 Sec 2]
(5) Bond in an amount to be fixed by court
if personal property is to be distributed
[Rule 74 Sec 3]
TWO-YEAR PERIOD
Disputable presumption of no debt
If within two years after the death of the
decedent no creditor files a petition for letters of
administration, then it shall be presumed that
decedent left no debt.
Two-year prescriptive period
Heirs or person deprived of lawful participation
in the estate may compel settlement of estate
within 2 years from settlement and distribution.
B. SUMMARY SETTLEMENT
ESTATES OF SMALL VALUE
REMEDIAL LAW
OF
218
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PROCEDURE
Partition of estate
C.
REMEDIES
OF
AGGRIEVED
PARTIES AFTER EXTRA-JUDICIAL
SETTLEMENT OF ESTATE
COMPARISON
REMEDIAL LAW
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SPECIAL PROCEEDINGS
REMEDIAL LAW
A.
NATURE
PROCEEDINGS
OF
PROBATE
OTHERS:
(1) Action for reconveyance of real property
based on an implied trust, reckoned 10
years from issuance of title [Marquez v. CA
(1998)]
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REMEDIAL LAW
V. Allowance or
Disallowance of Will
Probate or allowance of wills is the act of
proving in court a document purporting to be
the last will and testament of the deceased for
the purpose of its official recognition,
registration and carrying out its provision in so
far as they are in accordance with law. [FESTIN]
UP LAW BOC
SPECIAL PROCEEDINGS
REMEDIAL LAW
Uncontested will
(1) Notarial Will Testimony of at least one
subscribing witness that the will was
executed as required by law. [Rule 76 Sec 5]
a. If all subscribing witnesses reside
outside of the province their testimony
can be taken through a deposition by
presenting a photocopy of the will and
propounding questions thereat. [Rule
76 Sec 7]
b. Other witnesses who are not
subscribing
witnesses
may
be
presented if all subscribing witnesses
are dead, insane or do not reside in the
Philippines. [Rule 76 Sec 8]
Contested will
Anyone appearing to contest the will must state
in writing his grounds for opposing the
222
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REMEDIAL LAW
223
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REMEDIAL LAW
D. REPROBATE
F. EFFECTS OF PROBATE
Industrial Partner
Operates with
name
and
personality
Capitalist Partner
Effect
(1) The will shall have the same effect as if
originally proved and allowed in such court;
(2) Letters testamentary or administration with
a will annexed shall extend to all estates of
the testator in the Philippines;
(3) After payment of just debts and expenses of
administration the estate shall be disposed
of according to the will
(4) Residue disposed of in accordance with law
[Rule 77 Sec 4]
224
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Executor
Administrator
Person
named
expressly by deceased
person in his will to
administer estate and
subsequently
appointed by court
Appointed when:
1. Testator did not
appoint an executor
2. The appointment
was refused
3. The will was
disallowed
4. No will (intestate
succession)
REMEDIAL LAW
The
testator
may
provide that he may
serve without a bond Required to file bond
but the court shall unless exempted by
direct him to post a law
bond conditioned only
to pay debts.
Compensation
provided in the will
controls,
unless First part of Rule 85
renounced.
Sec 7 applies
If theres no provision
for compensation, Sec.
7 of Rule 85 shall
apply.
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REMEDIAL LAW
B. ORDER OF PREFERENCE
Order of preference in the grant of
administration
(1) Surviving spouse or next of kin, or both, or
to such person as the surviving spouse, or
next of kin requests to have appointed, if
competent and willing to serve.
(2) If those enumerated above be incompetent
or unwilling, or if the husband or widow, or
next of kin, neglects for 30 days after the
death of the person to apply for
administration or to request that
administration be granted to some other
person, it may be granted to one or more of
the principal creditors, if competent and
willing to serve.
(3) If there is no (2), it may be granted to such
other person as the court may select. [Rule
78 Sec 6]
C. OPPOSITION TO ISSUANCE OF
LETTERS
TESTAMENTARY;
SIMULTANEOUS FILING OF PETITION
FOR ADMINISTRATION
Grounds
(1) Incompetency of the person/s named in the
will as executor/s, or
(2) Contestants
own
right
to
the
administration (ex. preferential right under
Rule 78 Sec 6) [Rule 79 Sec 4]
Exception:
If the person enjoying such preferential rights is
(1) Unsuitable
(2) Incompetent
(3) Unwilling
(4) Neglect to apply for letters 30 days after the
death of the decedent
226
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REMEDIAL LAW
Form required
Grounds for opposition must be stated in
writing; court shall then hear and pass upon
sufficiency of such grounds. [Rule 79 Sec 1]
Posting
of
bond
Before an executor or administrator enters upon
the execution of his trust, and letters
testamentary or of administration issue, he
shall give a bond in such sum as the court
directs.
Purpose
The bond posted by the administrators and
executors is intended as an indemnity to the
creditors, the heirs and the estate. [FESTIN]
227
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KEEP BUILDINGS
REPAIR
IN
TENANTABLE
RIGHT
TO
POSSESSION
MANAGEMENT OF THE REAL
PERSONAL PROPERTIES
Joint bond
Joint executors or administrators may be
required by court to file either a separate bond
from each or joint bond from all. [Rule 81 Sec 3]
AND
AND
Special Administrator
Condition on the bond
(1) Make and return true inventory;
(2) Render accounting when required by
court;
(3) Deliver the estate of the deceased to the
person appointed as regular executor or
administrator, or other authorized person.
[Rule 81 Sec 4]
EXECUTOR
OR
ADMINISTRATOR
CHARGEABLE WITH ALL ESTATE AND
INCOME
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(a)
(b)
(c)
(d)
SPECIAL PROCEEDINGS
REMEDIAL LAW
(a) The
amount
paid
by
an
executor/administrator for costs awarded
against him shall be allowed in his
administration account [Rule 85 Sec 6]
(b) Unless it appears that the action or
proceeding in which the costs are taxed was
prosecuted or resisted without just cause,
and not in good faith.
(c) When the executor is an attorney, cannot
charge against estate any professional fees
for legal services rendered. [Rule 85 Sec 7]
ACCOUNTABLE FOR
REALTY USED BY HIM
INCOME
Necessary expenses
Such expenses as are entailed for the
preservation and productivity of the estate and
for its management for purpose of liquidation,
payment of debts, and distribution of the
residue among persons entitled thereto.
[Hermanos v. Abada (1919)]
FROM
EXECUTOR OR ADMINISTRATOR TO
MAKE
INVENTORY
AND
RENDER
ACCOUNT
ACCOUNTABLE IF HE NEGLECTS OR
DELAYS TO RAISE OR PAY MONEY
(a) Neglects or unreasonably delays to raise
money, by collecting the debts or selling the
real or personal estate of the deceased, or
(b) Neglects to pay over the money he has in his
hands, and the value of the estate is thereby
lessened or unnecessary cost or interest
accrues, or the persons interested suffer
loss.
Inventory
Of all real and personal estate of the deceased
which has come into his possession or
knowledge within 3 months after his
appointment [Rule 83 Sec 1]
229
UP LAW BOC
SPECIAL PROCEEDINGS
Not included:
(1) Wearing apparel of surviving husband or
wife and minor children
(2) The marriage bed and bedding
(3) Such provisions and other articles as will
necessarily be consumed in the subsistence
of the family of the deceased [Rule 83 Sec 2]
ACCOUNTING MANDATORY
Within 1 year from the time of receiving letters
testamentary or of administration unless the
court otherwise directs [Rule 85 Sec 8]
OF
Regular Administrator
Special Administrator
E. APPOINTMENT
ADMINISTRATOR
REMEDIAL LAW
SPECIAL
POWERS AND DUTIES
ADMINISTRATOR
When appointed
(1) When there is delay in granting letters
testamentary or administration, or
OF
SPECIAL
UP LAW BOC
SPECIAL PROCEEDINGS
(2) Preserve
the
same
for
the
executor/administrator
afterwards
appointed, and
(3) For that purpose may commence and
maintain suits as administrator.
(4) May sell only such perishable and other
property as the court orders sold.
(5) Not liable - to pay any debts of the deceased
unless so ordered by the court. [Rule 80 Sec
2]
WHEN
SPECIAL
CEASES DUTIES
REMEDIAL LAW
(2) Absconds
(3) Becomes insane or
(4) Becomes incapable or unsuitable to
discharge the trust. [Rule 82 Sec 2]
List enumerated is not exclusive. Court is
invested with ample discretion in removal of
administrator for as long as there is evidence of
act or omission part of administrator not
conformable to or in disregard of rules or orders
of court which it deems as sufficient or
substantial to warrant removal of administrator.
[FESTIN]
ADMINISTRATOR
F.
REVOCATION,
DEATH,
RESIGNATION AND REMOVAL OF
EXECUTORS AND ADMINISTRATORS
Revocation of administrator
When the decedents will is allowed and proved
after a letters of administration has been
issued, the administration is deemed revoked.
UP LAW BOC
SPECIAL PROCEEDINGS
EFFECT OF REMOVAL,
RESIGNATION
DEATH,
OR
Exception
Belated claims
The Court has the discretion, for cause and
upon such terms as are equitable, to allow
contingent claims presented beyond the period
previously fixed provided they are filed within 1
month from the expiration of such period but in
no case beyond the date of entry of the order of
distribution. [Danan v. Buencaminao (1981); Rule
86 Sec 2]
WITH
LIEN
REMEDIAL LAW
OF
UP LAW BOC
SPECIAL PROCEEDINGS
Significance of Notice
REMEDIAL LAW
If disputed:
It may be proved and allowed or disallowed by
the court as the facts may warrant [Rule 88 Sec
5]
Statute
of
non-claims
General Rule: Claim must be filed within the
time fixed by the notice otherwise they are
barred
forever.
[Rule
86
Sec
5]
ALTERNATIVE
REMEDIES
OF
A
M0RTGAGE CREDITOR UPON DEATH OF
DEBTOR
(1) Waive the security and claim the entire debt
from the estate as an ordinary claim creditor is
deemed to have abandoned the mortgage and
he cannot thereafter file a foreclosure suit if he
fails to recover his money claim against the
estate
Exceptions:
(1) When set forth as counterclaims in any
action that the executor/administrator may
bring against the claimants [Rule 86 Sec 5]
(2) Belated claims (Sec. 2, Rule 86)
UP LAW BOC
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B. CLAIM OF
ADMINISTRATOR
ESTATE
Additional requirements:
(1) If the claim be founded on a bond, bill, note,
or any other instrument - the original need
not be filed, but a copy thereof with all
indorsements shall be attached to the
claim.
REMEDIAL LAW
EXECUTOR
AGAINST
OR
AN
C. PAYMENT OF DEBTS
Debts Paid in Full if Estate Sufficient
(1) After all money claims heard and
ascertained; and
(2) It appears that there are sufficient assets to
pay the debts
Answer by executor/administrator
Shall be filed within 15 days after copy of claim
has been served upon him. Executor or
administrator may interpose any counterclaim.
Said counterclaim is regarded as compulsory, as
the failure to file the same shall bar the claim
forever. [Rule 86 Sec 10]
234
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REMEDIAL LAW
POSSESSION BEFORE
EXPENSES ARE PAID
DEBTS
AND
Court shall
- Hear and settle the amount of their
several liabilities
- Order how much and in what manner
each shall contribute
- May issue execution as circumstances
require. [Rule 88 Sec 6]
IN WHICH CASE
(1) The whole of the real estate not disposed of
by will, or so much thereof as is necessary,
may be sold, mortgaged, or otherwise
encumbered for that purpose by the
executor/administrator,
(2) Court approval must be obtained first, and
(3) Any deficiency shall be met by contributions
in accordance with the provisions of Sec. 6
of this rule.(contributive shares of devises,
legatees and heirs in possession) [Rule 88
sec 3]
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REMEDIAL LAW
Insolvent Non-Resident
His estate found in the Philippines shall be so
disposed of that his creditors here and
elsewhere may receive each an equal share, in
proportion to their respective credits. [Rule 88
Sec 9]
Principle of Reciprocity
But the benefit of this and the preceding
sections shall not be extended to the creditors
in another country if the property of such
deceased person there found is not equally
apportioned to the creditors residing in the
Philippines and the other creditor, according to
their respective claims. [Rule 88 Sec 10]
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REMEDIAL LAW
REQUISITES
(1) Executor/administrator must apply.
(2) Notice of the time and place of hearing.
(3) Court must hear the application.
A. ACTIONS
EXECUTORS
BY
AND
AGAINST
Writ of Execution
General Rule: The probate court does not have
the power to issue writs of execution. A writ of
execution is not the proper procedure for the
payment of claims against the estate. [Aldamiz
v. Judge of CFI-Mindoro (1949)]
Exceptions:
1. To satisfy the distributive shares of devisees,
legatees, and heirs in possession of the
decedents assets.
2. To enforce payment of expenses of the
partition.
3. To satisfy the costs when a person is cited for
examination in probate proceedings [FESTIN]
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REMEDIAL LAW
B.
RECOVERY
OF
PROPERTY
CONCELEAD,
EMBEZZLED
OR
FRADULENTLY CONVEYED
Proceedings
when
property
concealed,
embezzled or fraudulently conveyed
The court may cite any person suspected of
having concealed, embezzled, or conveyed
away any of the money, goods, or chattels of the
deceased, or that such person has in his
possession or has knowledge of any deed,
conveyance, bond, contract, or other writing
which contains evidence of or tends or discloses
the right, title, interest, or claim of the deceased,
to appear before it and be examined on oath
upon complaint by executor or administrator,
heir, legatee, creditor or other individual
interested in the estate of the deceased to the
court having jurisdiction of the estate; if the
person so cited refuses to appear, or to answer
on such examination or such interrogatories as
are put to him, the court may punish him for
contempt, and may commit him to prison until
he submits to the order of the court.
Process
of
recovery
by
the
executor/administrator of property fraudulently
conveyed
(1) Commence and prosecute to final judgment
an action for the recovery of such property,
right, interest, debt or credit for benefit of
the creditors
(2) Provided, creditors make an application and
pay such part of the costs and expenses or
give security therefor. [Rule 87 Sec 9]
Purpose
To elicit information, secure evidence or to
investigate and take testimony for use in an
independent action. The court in such
proceedings lacks power to adjudicate titles or
determine controverted rights. [HERRERA]
(1) If
executor/administrator
commence such action
238
failed
to
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REMEDIAL LAW
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REMEDIAL LAW
IX. Distribution
partition
and
BEFORE
THERE
COULD
BE
A
DISTRIBUTION
OF
ESTATE,
THE
FOLLOWING
STAGES
MUST
BE
FOLLOWED:
A. LIQUIDATION
General Rule: Before an order of distribution or
assignment, it must be shown that the debts,
funeral
expenses
and
expenses
of
administration, allowances, taxes, etc.,
chargeable to the estate have been paid.
240
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REMEDIAL LAW
B. PROJECT OF PARTITION
A project of partition is merely a proposal for
the distribution of the hereditary estate which
the court may accept or reject. [Solivio v. CA,
(1990)]
Exceptions:
(1) To satisfy the contributive shares of
devisees, legatees and heirs in possession of
the decedents assets (Sec. 6, Rule 88)
(2) To enforce payment of expenses of
partition; [Rule 90 Sec 3] and
(3) To satisfy the costs when a person is cited
for examination in probate proceedings
[Rule 142 Sec 13]
UP LAW BOC
SPECIAL PROCEEDINGS
X. Escheat
Procedure
Solicitor General or his representative in behalf
of the Republic of the Philippines will file the
petition:
If deceased is a residentin the RTC of
the province where he last resided
If non-residentin the RTC of the
province in which he had an estate
Actions for reversion or escheat of
properties alienated in violation of the
Constitution or of any statutein the
province where the land lies in whole
or in part
A. WHEN TO FILE
Three instances of Escheats:
(1) When a person dies intestate leaving
property in the Philippines but leaving no
heir [Rule 91 Sec 1]
(2) Reversion proceedings in alienations in
violation of Constitution or other statute
[Rule 91 Sec 5]
(3) Unclaimed Balances Act (Act No. 3936 as
amended by PD 679) dormant accounts
for 10 years shall be escheated.
Where to file:
(1) If Resident RTC of the province where the
deceased last resided;
(2) If Non-resident RTC of the pace where his
estate is located. [Rule 91 Sec 1]
B. REQUISITES
PETITION
FOR
FILING
REMEDIAL LAW
OF
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REMEDIAL LAW
XI. Trustees
A.
DISTINGUISHED
FROM
EXECUTOR/ADMINISTRATOR
Trustee
Executor/Administrator
C.
REMEDY
OF
RESPONDENT
AGAINST PETITION; PERIOD FOR
FILING A CLAIM.
Period to file claim to the estate
A claim must be made within 5 years from date
of judgment; otherwise, barred forever [Rule 91
Sec 4]
Court
which
has
jurisdiction is RTC or
MTC if appointed to
carry into effect the Court
which
has
provisions of a will; If jurisdiction may be the
trustee dies, resigns, or RTC or MTC
removed
in
a
contractual trust, RTC
has jurisdiction to
appoint new trustee
243
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Trusteeship
is
terminated
upon
turning
over
the
property
to
the
beneficiary
after
expiration of trust.
Services
of
executor/administrator
is terminated upon
payment of debts of
the estate and the
distribution of property
to the heirs
REMEDIAL LAW
(3) Accounting
That he will render upon oath at least once a
year until his trust is fulfilled, unless he is
excused in any year by the court, a true account
of the property in his hands and the
management and disposition thereof, and will
render such other accounts as the court may
order
UP LAW BOC
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XII. Guardianship
Guardianship
The power of protective authority given by law
and imposed on an individual who is free and in
the enjoyment of his rights, over one whose
weakness on account of his age or other
infirmity renders him unable to protect himself.
[HERRERA]
Resignation
He may resign but the court will determine if
resignation is proper. [Rule 98 Sec 8]
E. EXTENT
TRUSTEE
OF
AUTHORITY
REMEDIAL LAW
Guardian
A person lawfully invested with power and
charged with the duty of taking care of a person
who for some peculiarity or status or defect of
age, understanding or self-control is considered
incapable of administering his own affairs.
[HERRERA]
OF
Nature of Possession
The possession of the property by the trustee is
not an adverse possession, but only a
possession in the name and in behalf of the
owner of the same.
245
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Kinds of Guardians
(1) Legal Guardian deemed as guardian by
provision of law, without need of court
appointment (Art. 225, FC)
(2) Guardian ad Litem appointed by the court
to prosecute or defend a minor, insane or
person declared to be incompetent, in a
court action
(3) Judicial Guardian appointed by the court
in pursuance to law, as guardians for insane
persons, prodigals, minor heirs of deceased
war veterans and other incompetent
persons.
a. Guardian over the person
b. Guardian of the property
c. General guardian (both person and
property) [REGALADO]
REMEDIAL LAW
Specific duties
(1) To pay the just debts of the ward out of:
(a) Personal property and the
income of the real property of
the ward, if the same is
sufficient
(b) Real property of the ward
upon obtaining an order for its
sale or encumbrance. [Rule 96
Sec 2]
(2) To settle all accounts of his ward [Rule 96
Sec 3]
(3) To demand, sue for, receive all debts due
him, or, with the approval of the court,
compound for the same and give discharges
to the debtor on receiving a fair and just
dividend of the property and effects [Rule 96
Sec 3]
(4) To appear for and represent the ward in all
actions and special proceedings, unless
another person is appointed for that
purpose [Rule 96 Sec 3]
(5) To manage the property of the ward frugally
and without waste, and apply the income
and profits thereon, insofar as may be
necessary, to the comfortable and suitable
maintenance of the ward. If such income
and profits be insufficient for that purpose,
to sell or encumber the real or personal
property, upon being authorized by the
court to do so [Rule 96 Sec 4]
(6) To consent to a partition of real or personal
property owned by the ward jointly or in
common with others, upon:
(a) Authority granted by the court
after hearing
(b) Notice to relatives of the ward,
and
(c) A careful investigation as to
the necessity and propriety of
the proposed action. [Rule 96
Sec 5]
(7) To submit to the court a verified inventory of
the property of the ward:
A. GUARDIANSHIP OF INCOMPETENT
PERSONS NOT MINORS
Procedure
Filing of Petition
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Payment of Compensation
Court may order payment of reasonable
compensation not exceeding 15% of the net
income of the ward. [Rule 96 Sec 8]
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Where to file
Contents of petition
Qualifications of Guardians
mental
and
psychological
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Hearing
Notice requirement
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In general
Resignation
Ground: Any justifiable cause.
(2) Guardian
of
non-resident
minor:
Management of all his property within the
Philippines [Sec. 17]
Bonds of Guardians
Before a guardian enters upon the execution of
his trust, or letters of guardianship issue, he
must file a bond as determined by the Court.
[Sec. 14]
Termination
Grounds
How Terminated:
(1) Court
motu
proprio
guardianship; or
terminates
Removal
How: Upon reasonable notice to the guardian.
Grounds: The guardian:
(1) Becomes insane or otherwise incapable of
discharging his trust; or
(2) Is found to be unsuitable;
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XIII. Adoption
A. DISTINGUISH DOMESTIC ADOPTION FROM INTER-COUNTRY ADOPTION
Domestic Adoption (RA 8552)
Kind of proceedings
Judicial Adoption
Extra-judicial Adoption
What it governs
RA 8552 amended Art. 183 193 of the Family RA 8043 governs adoption of Filipinos by
Code and is the governing law for Filipino citizens foreigners and non-resident citizen and is
adopting other Filipinos (whether relatives or implemented by the Inter-Country Adoption Board
strangers) with some exceptions.
Rescission of adoption is no longer allowed.
Definition of child
Child is a person below 18 years of age [Sec. 3(a)] Child means a person below fifteen (15) years of
age unless sooner emancipated by law [Sec 3 (b)]
Who may adopt
(1) Any Filipino citizen;
(2) Any alien possessing the same qualifications An alien or Filipino citizen permanently residing
for Filipino nationals;
abroad may file an application for inter-country
(3) The guardian with respect to the ward [Sec. 7] adoption of a Filipino child. [Sec. 9]
Qualifications
Filipino Citizen
(a) legal age, in possession of full civil
capacity and legal rights;
(b) of good moral character, has not been
convicted of any crime involving moral
turpitude;
(c) emotionally and psychologically capable
of caring for children;
(d) at least sixteen (16) years older than the
adoptee (waived when adopter is the
biological parent of the adoptee, or is the
spouse of the adoptees parent) [Sec. 7(a)]
Alien
(a) same as qualifications of Filipino citizens;
and
(b) His/her country has diplomatic relations
with the Republic of the Philippines;
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law;
(f) is in a position to provide the proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
(g) agrees to uphold the basic rights of the
child as embodied under Philippine laws,
the U.N. Convention on the Rights of the
Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act;
(h) comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and
that adoption is allowed under his/her
national laws; and
(i) possesses all the qualifications and none
of the disqualifications provided herein
and in other applicable Philippine laws.
[Sec. 9]
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Annexes
RA 8552 does not provide for any annexes but Sec Application must be supported by the following
11 AM 02-6-02-SC Rule on Domestic and documents (written and officially translated in
Intercountry Adoption, requires the following to be English):
annexed to the petition
(a) Birth certificate of applicant(s);
(a) Birth, baptismal or foundling certificate, as (b) Marriage contract, if married, and divorce
decree, if applicable;
the case may be, and school records
showing the name, age and residence of (c) Written consent of their biological or adoptive
children above ten (10) years of age, in the
the adoptee;
form of sworn statement;
(b) Affidavit of consent of the following:
(d)
Physical,
medical and psychological evaluation
1. The adoptee, if ten (10) years of age
by
a
duly
licensed physician and psychologist;
or over;
(e) Income tax returns or any document showing
2. The biological parents of the child, if
the financial capability of the applicant(s);
known, or the legal guardian or the (f) Police clearance of applicant(s);
child-placement agency, child-caring (g) Character
reference
from
the
local
agency, or the proper government
church/minister, the applicant's employer and
a member of the immediate community who
instrumentality which ahs legal
have known the applicant(s) for at least five (5)
custody of the child;
years; and
3. The legitimate and adopted children
(h) Recent postcard-size pictures of the
of the adopter and of the adoptee, if
applicant(s) and his immediate family; [Sec.
any, who are ten (10) years of age or
10]
over;
4. The illegitimate children of the
adopter living with him who are ten
(10) years of age or over; and
5. The spose, if any, of the adopter or
adoptee.
(c) Child study report on the adoptee and his
biological parents;
(d) If the petitioner is an alien, certification by
his diplomatic or consular office or any
appropriate government agency that he
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Adoption
A juridical act which creates between two
persons a relation similar to that which results
from filiation. [Prasnick v. Republic, 98 Phil. 669
(1956)]
PROCEDURE
Order of hearing
It is a proceeding in rem.
Objective: Best interest of the child
Decree of Adoption
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EFFECTS OF ADOPTION
(1) Adopters shall exercise parental authority.
(2) All legal ties between biological parent(s)
and adoptee shall be severed (except in
cases where the biological parent is the
spouse of the adopter); and the same shall
be vested on the adopter(s); [Sec. 16]
(3) Adoptee shall be considered the legitimate
child of the adopter(s) for all intents and
purposes; [Sec. 17]
(4) Adopters shall have reciprocal rights of
succession without distinction from
legitimate filiation; [Sec. 18]
When to file:
(1) Within 5 years after reaching age of majority
(2) If he was incompetent at the time of the
adoption, within 5 years after recovery from
such incompetency. [Sec. 21 A.M. 02-6-02SC, Rule on Domestic and Inter-Country
Adoption]
EFFECTS OF RESCISSION OF ADOPTION
(1) Restoration of parental authority to
biological parent if adoptee is a minor if
know, or legal custody to the DSWD;
(2) Reciprocal rights and obligations of adopter
and adoptee are extinguished;
(3) Cancellation of amended birth certificate
and restore original;
(4) Successional rights shall revert to its status
prior to adoption, as of the date of final
judgment of rescission.
(5) Vested rights shall be respected [Sec. 20,
RA 8552]
C. INTER-COUNTRY ADOPTION
RA 8043 (Inter-country Adoption Act) governs
the adoption of Filipino children by:
(1) Foreign nationals, and
(2) Filipino citizens permanently residing
abroad. [Sec. 3 (a)]
WHEN ALLOWED
Inter-country Adoption as the Last Resort; Best
Interest of the child as objective
The Inter-country Adoption Board (ICAB) shall
ensure that all possibilities for adoption of the
child under the Family Code (domestic
adoption) have been exhausted and that intercountry adoption is in the best interest of the
child [Sec. 7, RA 8043]
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XIV. Writ
Corpus
REMEDIAL LAW
of
Habeas
VITAL PURPOSES
In general
The purpose of the writ is to inquire into all
manner of involuntary restraint, and to relieve a
person therefrom if such restraint is illegal.
(1) To obtain relief from illegal confinement
(2) To liberate those who may be imprisoned
without sufficient cause
(3) To deliver them from unlawful custody
[Villavicencio v. Lukban (1919)]
Concept of restraint
Actual and effective and not merely nominal or
moral restraint is required. [Zagala v. Illustre
(1926)]
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NATURE
Not a suit between private parties, but an
inquisition by the government, at the
suggestion and instance of an individual, but
still in the name and capacity of the sovereign.
There can be no judgment entered against
anybody since there is no real plaintiff and
defendant. [Alimpos v. CA, 106 SCRA 159 (1981)]
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D.
WHEN
APPLICABLE
NOT
PROPER
OR
WHC is proper:
Remedy for reviewing proceedings for
deportation of aliens [De Bisschop v. Galang,
(1963)]
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Applicability
Applies to petitions for custody of minors and
writs of habeas corpus in relation thereto.
Rules of Court shall apply suppletorily. [Sec. 1]
Petition for Custody of Minors
Who may file: Any person claiming right of
custody. [Sec 2]
Party against whom it may be filed shall be
designated as the respondent.
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(3)
(4)
(5)
(6)
REMEDIAL LAW
Interim Reliefs
(1) Temporary visitation rights - court shall
provide in its order awarding provisional
custody appropriate visitation rights to the
non-custodial parent or parents.
Unless the court finds said parent or parents
unfit or disqualified.
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Appeal
Appeal from the decision shall be allowed,
unless the appellant has filed a motion for
reconsideration or new trial within 15 days from
notice of judgment.
An aggrieved party may appeal from the
decision by filing a Notice of Appeal within 15
days from notice of the denial of the motion for
reconsideration or new trial and serving a copy
on the adverse parties. [Sec. 19]
WRIT OF HABEAS CORPUS IN RELATION TO
CUSTODY OF MINORS
A verified petition for a writ of habeas corpus
involving custody of minors is filed with the
Family Court. The writ shall be enforceable
within the judicial region the Family Court
belongs.
However, the petition may be filed with a
regular court in the absence of the presiding
judge of the Family Court provided that the
regular court shall refer the case to the Family
Court as soon as its presiding judge returns to
duty.
Judgment
Court shall render judgment awarding the
custody of the minor to the proper party
considering the best interests of the minor.
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Right to liberty
Rightful custody of the aggrieved
party
Actual violation of the aggrieved
partys right to liberty, or rightful
custody [Sec. 1]
Unlawful deprivation
custody, or
of
rightful
Contents
petition
of
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(1) That the person in whose behalf
the application is made is
imprisoned or restrained on his
liberty;
(2) The officer or name of the person
by whom he is so imprisoned or
restrained or, if both are
unknown or uncertain, such
officer or person may be
described by an assumed
appellation, and the person who
is served with the writ shall be
deemed the person intended;
(3) The place where he is so
imprisoned or restrained, if
known;
(4) A copy of the commitment or
cause of detention of such
person, if it can be procured
without impairing the efficiency
of the remedy or, if the
imprisonment or restraint is
without any legal authority, such
fact shall appear. [Sec. 3]
REMEDIAL LAW
respondent
(2) The name, age and present
whereabouts of the minor and
his or her relationship to the
petitioner and the respondent
(3) The material operative facts
constituting
deprivation
of
custody and
(4) Such other matters which are
relevant to the custody of the
minor.
The verified petition shall be
accompanied by a certificate against
forum shopping, which the petitioner
must sign personally. [Sec. 4]
WRIT OF AMPARO
Literally means to protect
A. COVERAGE
Available to any person whose right to life,
liberty and security is violated or threatened
with violation by an unlawful act or omission of
a public official or employee, or of a private
individual or entity.
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WHERE TO FILE
(1) RTC where the threat, act or omission was
committed or any of its element occurred; or
(2) Sandiganbayanunlike the writ of habeas
corpus, because public officials and
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E. CONTENTS OF RETURN
When to file return
Respondent must file a verified written return
within 72 hours after service of writ, together
with supporting affidavits.
CONTENTS OF PETITION
(1) The personal circumstances of the
petitioner;
(2) The name and personal circumstances of
the respondent responsible for the threat,
actor omission or if the name is unknown or
uncertain, the respondent may be described
by an assumed appellation;
(3) The right to life, liberty and security of the
aggrieved party violated or threatened with
violation by an unlawful act or omission of
the respondent, and how such threat or
violation is committed with the attendant
circumstances detailed in supporting
affidavits;
(4) The investigation conducted, if any,
specifying the names, the personal
circumstances and addresses of the
investigating authority or individuals, as
well as the manner and conduct of the
investigation, together with any report;
(5) The actions and recourses taken by the
petitioner to determine the fate or
whereabouts of the aggrieved party and the
identity of the person responsible for the
threat, act or omission; and
(6) The relief prayed for.
CONTENTS OF RETURN
(1) The lawful defenses to show that the
respondent did not violate or threaten with
violation the right to life, liberty and security
of the aggrieved party, through any act or
omission;
(2) The steps or actions taken by the
respondent to determine the fate or
whereabouts of the aggrieved party and the
person responsible for the threat, act or
omission;
(3) All relevant information in the possession of
the respondent pertaining to the threat, act
or omission against the aggrieved party;
and
(4) If the respondent is a public official or
employee the return shall further state the
actions that have been or will still be taken:
a. to verify the identity of the aggrieved
party;
b. to recover and preserve evidence related
to the death or disappearance of the
person identified in the petition which
may aid in the prosecution of the person
or persons responsible;
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To whom returnable
(1) If filed with RTC, returnable to RTC or any
judge
(2) If filed with Sandiganbayan, CA or any
justice, returnable to such court or any
justice or the RTC where the threat, act or
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K. CONSOLIDATION
When a criminal action is filed subsequent to
the filing of a petition for the writ, the latter
shall be consolidated with the criminal action.
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Requisites:
(1) Verified motion of the respondent
(2) Due hearing
(3) Affidavits or testimonies of witnesses having
personal knowledge of the defenses of the
respondent.
M. QUANTUM OF PROOF
APPLICATION FOR ISSUANCE
WRIT OF AMPARO
IN
OF
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B. AVAILABILITY OF WRIT
Who may file: Any aggrieved party may file a
petition for the writ of habeas data.
Where to file:
(1) RTC
(a) Where petitioner resides; or
(b) Where respondent resides; or
(c) Which has jurisdiction over the place
where the data or information is
gathered, collected or stored, at the
option of the petitioner.
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Issuance of Writ
Upon the filing of the petition, the court, justice
or judge shall immediately order the issuance of
the writ if on its face it ought to issue. [Sec. 7]
Contents:
(1) The lawful defenses such as national
security,
state
secrets,
privileged
communication, confidentiality of the
source of information of media and others;
(2) In case of respondent in charge, in
possession or in control of the data or
information subject of the petition:
a. disclosure of the data or information
about the petitioner, the nature of such
data or information, and the purpose for
its collection;
b. the steps or actions taken by the
respondent to ensure the security and
confidentiality of the data or
information; and
c. the currency and accuracy of the data or
information held; and
(3) Other allegations relevant to the resolution
of the proceeding.
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G. CONSOLIDATION
When a criminal action is filed subsequent to
the filing of a petition for the writ, the latter
shall be consolidated with the criminal action.
When a criminal action and a separate civil
action are filed subsequent to a petition for a
writ of habeas data, the petition shall be
consolidated with the criminal action. [Sec. 21]
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Procedure:
(1) Petition for Change of Name
(2) Court order fixing the date and place of
hearing
(3) Publication of the court order fixing the date
and place of hearing, at least once a week
for 3 consecutive weeks in a newspaper of
general circulation.
(4) Hearing on the petition
(5) Judgment granting/denying the change of
name. Copy of the judgment shall be served
upon the civil registrar, who shall annotate
the same.
REMEDIAL LAW
XVIII. Cancellation or
Correction of Entries in
the Civil Registry
A.
ENTRIES
SUBJECT
TO
CANCELLATION OR CORRECTION IN
RELATION TO R.A. 9048
Opposition
Period to file:15 days from notice of petition, or
from last date of publication of notice [Rule 108,
Sec. 5]
Entries:
(1) Births
(2) Marriage
(3) Deaths
(4) Legal separations
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XIX. Absentees
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Exception: Appointment of a
administrator is not appealable
special
granting/denying
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C. MODES OF APPEAL
Notice and record on appeal required. [Sec. 3,
Rule 41]
B. WHEN TO APPEAL
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Annexes
Annex A (Writ of Habeas Corpus, Amparo, Data)
Nature,
function
scope,
WA Writ of Amparo
RWA - Rules on the Writ of Amparo
SC Supreme Court
SB Sandiganbayan
CoC Clerk of Court
Habeas Corpus
1. All cases of illegal
confinement and detention
which any person is
deprived of his liberty
2. Deprived of rightful
custody of any person is
withheld from the person
entitled [Sec. 1]
Actual violation before writ
issues. Note Villavicencio v.
Lukban on applicability of
the writ in case of
constructive restraint.
Limitations
Amparo
Involves right to life,
liberty and security
violated or threatened
with violation by an
unlawful
act
or
omission of a public
official or employee or
a private individual or
entity
It covers extralegal
killings and enforced
disappearances
or
threats thereof. [Sec. 1]
280
Habeas Data
Involves the right to
privacy in life, liberty
or security violated or
threatened by an
unlawful
act
or
omission of a public
official or employee, or
of a private individual
or entity engaged in
the
gathering,
collecting or storing of
data or information
regarding the person,
family, home and
correspondence of the
aggrieved party. [Sec.
1]
Shall not diminish,
increase or modify
substantive
rights
[Sec. 23]
Any aggrieved party
may file a petition for
the WHD
However, in cases of
extralegal killings and
enforced
disappearances, the
petition may be filed
by (also successive):
(1) Any member of
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Habeas Corpus
Amparo
within the 4th civil
degree
of
consanguinity or
affinity
(3) Any
concerned
citizen,
organization,
association
or
institution
Filing by the aggrieved
suspends the right of
all others [Sec. 2]
Where filed
Where enforceable
Where returnable
REMEDIAL LAW
Habeas Data
the
immediate
family
of
the
aggrieved
(2) Any
ascendant,
descendant
or
collateral relative
of the aggrieved
party within the
fourth civil degree
of consanguinity
or affinity [Sec. 2]
Granted by:
(1) SC or any member
thereof, on any day and
at any time
(2) CA or any member
thereof in instances
authorized by law
(3) RTC or a judge thereof,
on any day and at any
time, enforceable only
within
his
judicial
district (Sec. 2)
(4) MTC or first level courts
in the absence of RTC
judges in a judicial
region [Sec. 35 BP 129]
If SC or CA issued,
anywhere in the Philippines
Writ
shall
be
enforceable anywhere
in the Philippines [Sec.
4]
If issued by:
(1) The SC or any of
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Habeas Corpus
(1) Is the SC or CA, or a
member
thereof,
returnable before such
court or any member
thereof or an RTC
(2) An RTC, or a judge
thereof,
returnable
before himself [Sec. 2]
Docket Fees
Amparo
(1) Is the SC or any of
its
justices,
returnable before
such court or any
justice thereof, or
before the SB or
CA or any of their
justices, or to any
RTC of the place
where the threat,
act or omission
was committed or
any of its elements
occurred
(2) The SB or CA or
any
of
their
justices, returnable
before such court
or
any
justice
thereof, or to any
RTC of the place
where the threat,
act, or omission
was committed or
any of its elements
occurred
(3) The RTC or any
judge
thereof,
returnable before
such court or judge
[Sec. 3]
Petitioner shall be
exempted from the
payment of the docket
and other lawful fees
Court, justice or judge
shall
docket
the
petition and act upon it
immediately (Sec 4)
Essential
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Habeas Data
its justices, before
such Court or any
justice thereof, or
CA or SB or any of
its justices, or the
RTC of the place
where
the
petitioner
or
respondent
resides/has
jurisdiction over
the place where
the
data
or
information
is
gathered, stored
or collected
(2) The CA or SB or
any of its justices,
before such court
or any justice
thereof, or the
RTC (same with
scenario:
SC
issued and then
returned in RTC)
(3) RTC, returnable
before such court
or judge [Sec. 4]
None for
petitioner
indigent
Petition
shall
be
docketed and acted
upon
immediately,
without prejudice to
subsequent
submission of proof of
indigency not later
than 15 days from
filing (Sec. 5)
Verified and written
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allegations/
Contents of petition
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Habeas Corpus
by the party for whose relief
it is intended or by some
person on his behalf,
setting forth:
(1) The person in whose
behalf
whose
the
application is made is
imprisoned
or
restrained of his liberty
(2) Name of the person
detaining another or
assumed appellation
(3) Place where he is
imprisoned
or
restrained of his liberty
(4) Cause of detention
[Sec. 3]
Amparo
shall allege:
(1) The
personal
circumstances of
the petitioner
(2) Name
or
appellation
and
circumstances of
the respondent
(3) The right to life,
liberty,
and
security violated or
threatened
with
violation,
(4) The investigation
conducted, if any,
plus circumstances
of each
(5) The actions and
recourses taken by
the petitioner
(6) Relief prayed for
May include a general
prayer for other just
and equitable reliefs
[Sec. 5]
When proper
REMEDIAL LAW
Habeas Data
petition shall contain:
(1) Personal
circumstances of
petitioner
and
respondent
(2) Manner the right
to
privacy
is
violated
or
threatened and its
effects
(3) Actions
and
recourses taken by
the petitioner to
secure the data or
information
(4) The location of the
files, registers, or
databases,
the
government office,
and the person in
charge or control
(5) The reliefs prayed
for
Such other relevant
reliefs as are just and
equitable [Sec. 6]
Upon filing of the
petition, the court,
justice, or judge shall
immediately order the
issuance of the writ if
on its face it ought to
issue.
CoC shall issue the
writ under the seal
of the court and
cause it to be served
within 3 days from
issuance or
In case of urgent
necessity, the justice
or judge may issue
the writ under his or
UP LAW BOC
Service
SPECIAL PROCEEDINGS
Habeas Corpus
restraint of the prisoner,
and is satisfied that he is
unlawfully imprisoned [Sec.
5]
Writ may be served in any
province by the (a) sheriff,
(b) other proper officer, or
(c) person deputed by the
court or judge
Service is made by leaving
the original with the person
to whom it is directed and
preserving a copy on which
to make return of service
Respondent
Amparo
to serve it. [Sec. 6]
Respondent is a public
official or employee or
private individual or
entity [Sec. 1]
REMEDIAL LAW
Habeas Data
her own hand, and
may deputize any
officer or person to
serve it [Sec. 7]
The writ shall be
served
upon
the
respondent
by
a
judicial officer or by a
person deputized by
the court, justice or
judge who shall retain
a copy on which to
make a return of
service
In case the writ cannot
be served personally
on the respondent, the
rules on substituted
service shall apply
[Sec. 9]
A public official or
employee or a private
individual or entity
engaged in gathering,
collecting or storing
data [Sec. 1]
Respondent files the
return [Sec. 10]
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
and
cannot,
without
danger, be brought therein
Contents of return
Amparo
285
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Habeas Data
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SPECIAL PROCEEDINGS
Habeas Corpus
such
custody
or
restraint to another,
particularly to whom, at
what time, for what
cause, and by what
authority such transfer
was made. [Sec. 10]
Formalities of return
Penalties
For refusing to issue
or serve
For faulty return
Amparo
evidence
(c) To identify and
collect witness
statements
(d) To determine
cause, manner,
location, and
time of death
or
disappearance
(e) To identify and
apprehend
persons
involved
(f) Bring
suspected
offenders
before
a
competent
court [Sec.9]
the respondent shall
file a verified written
return together with
supporting affidavits
[Sec. 9]
REMEDIAL LAW
Habeas Data
respondent to
ensure
the
security and
confidentialit
y of the data
or
information
(c) The currency
and accuracy
of the data or
information
held
Other allegations
relevant to the
resolution of the
proceeding
[Sec.10]
286
shall be punished by
the court, justice or
judge for contempt
without prejudice to
other
disciplinary
actions [Sec. 7]
shall be punished by
the court, justice, or
judge for contempt
without prejudice to
other
disciplinary
actions (RWD Sec. 8)
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
demanding, within 6
hours a true copy of
the warrant or order
of commitment,
shall forfeit to the party
aggrieved the sum of
P1000, recoverable in a
proper action, and may
also be punished for
contempt [Sec. 16]
Is period of return
extendable?
Is a general denial
allowed?
Defenses
not
pleaded
Amparo
respondent
who
refuses to make a
return, or who makes
a false return, or any
person
who
otherwise disobeys or
resist
a
lawful
process or order of
the court to be
punished
for
contempt
Contempt or may
be imprisoned or
imposed a fine
[Sec. 16]
No, not even on highly
meritorious grounds.
Not allowed [Sec. 9]
If not raised in return
deemed waived [Sec
10]
Court or justice shall
proceed to hear the
petition ex parte [Sec.
12]
Effect of failure to
file return
Nature of Hearing
Summary.
However,
the court, justice, or
judge may call for a
preliminary conference
to simplify the issues
and look at possibility
of
obtaining
stipulations
and
admissions from the
parties.
Hearing shall be from
287
REMEDIAL LAW
Habeas Data
imprisonment or fine a
respondent
who
commits contempt by:
(1) Making a false
return or
(2) Refusing to make
a return or
(3) Any person who
otherwise disobeys
or resists a lawful
process or order of
the court [Sec. 11]
UP LAW BOC
SPECIAL PROCEEDINGS
Habeas Corpus
Prohibited
pleadings
In custody of minors: a
motion to dismiss, except
on the ground of lack of
jurisdiction [Sec. 6, Rule on
Custody of Minors and WHC]
Burden
Proof/Standard
Diligence
of
of
Clear
and
convincing evidence
[Dizon v. Eduardo
(1988)]
Note: no provision in Rule
but in Dizon v. Eduardo, the
SC
used clear
and
convincing evidence, a
stricter
standard
than
preponderance
of
evidence but less stricter
that
proof
beyond
reasonable doubt.
Amparo
day to day until
completed
same
priority as petitions
for WHC [Sec. 13]
As specified in the writ,
not later than 7 days
from the issuance of
the writ [Sec. 6]
Motion to dismiss,
Motion for extension of
time to file opposition,
affidavit,
position
paper
and
other
pleadings,
Dilatory
motion
for
postponement, Motion
for bill of particulars,
Counterclaims or crossclaims,
Third-party
complaint,
Reply,
Motion to declare
respondent in default,
Intervention,
Memorandum, Motion
for reconsideration of
interlocutory orders or
interim relief orders,
petition for certiorari,
mandamus,
or
prohibition [Sec.11]
Establish claims by
substantial evidence
if respondent is a
private individual or
entity,
ordinary
diligence
if public official or
employee,
extraordinary
diligence [Sec. 17]
288
REMEDIAL LAW
Habeas Data
state secrets, or the
data is of privileged
character [Sec. 12]
As specified in the
writ, not later than 10
working days from the
date of issuance writ
[Sec. 7]
Same as WA (Sec. 13,
RWD)
Substantial evidence
required to prove the
allegations in the
petition [Sec. 16]
UP LAW BOC
Presumption
Official duty
SPECIAL PROCEEDINGS
of
Habeas Corpus
Yes. Consonant with Sec.
13, stating that if warrant of
commitment
is
in
pursuance with law, serves
as prima facie cause of
restraint
Judgment
Appeal
Consolidation
actions
Effect
of
filing
criminal action
Amparo
Public
official
or
employee
cannot
invoke the presumption
that official duty has
been
regularly
performed [Sec. 17]
The court shall render
judgment within 10
days from the time the
petition is submitted
for
decision
[Sec. 18]
5 working days from
the date of notice of
adverse judgment to
the SC under Rule 45
[Sec. 19]
Consolidated with a
criminal action filed
subsequent to the
petition [Sec. 23]
No more separate
petition shall be filed.
Reliefs available by
motion in the criminal
case [Sec. 22]
REMEDIAL LAW
Habeas Data
Annex B Differences under the applicable rules (Rule 103, Rule 108, R.A. 9048)
Rule 103
Rule 108
RA 9048
Applicability Substantial Changes in name
Substantial changes (1) Change of First Names or
in entries in the civil
Nicknames
registry (other than (2) Change brought about
name)
by
clerical
or
typographical
errors
(includes day and month
in the date of birth or
sex), except nationality,
age, or status
Nature
Judicial
Judicial
Administrative
Who May (1) The person desiring to Natural person having A natural person having
File
change his name
direct and personal direct and personal interest
(2) Some other person on his interest
in
the in the change of first name or
behalf
correction of error in nickname in the civil register.
an entry in the civil
289
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Rule 108
REMEDIAL LAW
RA 9048
register
Where Filed
RTC of the province in which RTC of the province The local civil registry office
the person desiring to change where
the
civil of the city or municipality
his name resides.
registry is located
where the record being
sought
to
be
corrected/changed is kept.
Exceptions:
(1) If the petitioner has
already migrated to
another place in the
country, the petition
shall be filed with local
civil registrar of the place
where the interested
party
is
presently
residing or domiciled
(2) If the petitioner is a
Filipino citizen presently
residing or domiciled in a
foreign country, the
petition shall be filed in
the nearest Philippine
Consulate.
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Rule 108
REMEDIAL LAW
RA 9048
said aliases
Petitioner has been a bona fide
resident of the province where
the petition is filed for at least 3
years prior to the date of such
filing.
Cause for which the change of
the petitioner's name is sought
Petitioner must show a proper
or compelling reason for the
change of name + the fact that
he will be prejudiced by the use
of his official name.
Form
Petition
Procedure
(1) Filing of petition for (1) Filing of petition
for
change of name.
(2) Court
shall
Changing of (2) Court shall promulgate an
promulgate
an
Name
order fixing a date and
order fixing the
place for hearing the
time and place for
petition. The date set for
hearing
the
the hearing shall NOT be:
petition and cause
reasonable notice
Within 30 days prior to
to be given to the
an election AND
persons named in
Within 4 months after
the petition.
the last publication of
the notice.
Civil registrar and
(3) Court shall direct a copy of
all persons who
the order to be published
have or claim any
before the hearing
interest
which
At least once a week for
would
be
affected
3 successive weeks
thereby shall be
In some newspaper of
made parties to
general
circulation
the proceeding
published
in
the
291
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
REMEDIAL LAW
Rule 108
RA 9048
province.
(3) Court shall direct (3) The petition shall be
a copy of the
published at least once a
(a) Hearing
shall
be
order
to
be
week for 2 consecutive
conducted.
published before
weeks in a newspaper of
the hearing
general circulation.
The SolGen or the
(4) The City or Municipal
proper provincial or city
At least once a
Registrar or the Consul
fiscal shall appear on
week
for
3
General shall render a
behalf
of
the
successive weeks
decision not later than 5
Government of the
working days after the
Republic.
In
some
completion of the posting
(b) Judgment granting or
newspaper
of
and/
or
publication
denying the change of
general
requirement. He shall
name.
circulation
transmit a copy of his
published in the
decision together with
(c) Copy of judgments
province.
the records of the
shall be furnished the (4) File opposition
proceedings to the Office
civil registrar of the
Within 15 days
of the Civil Registrar
municipality or city
from notice of the
General within 5 working
where the court issuing
petition or from
days from the date of the
the same is situated,
the last date of
decision.
who shall forthwith
publication
enter the same in the (5) Hearing shall be
Where the petition is
civil register.
conducted.
denied by the city or
Court
may
municipal civil registrar
expedite
the
or the consul general, the
proceedings and
petitioner may either
also
grant
appeal the decision to
preliminary
the civil registrar general
injunction
for
or file the appropriate
preservation
of
petition with the proper
rights
of
the
court.
parties
(5) The
Civil
Registrar
(6) Judgment
General shall, within 10
granting
or
working
days
from
denying
the
receipt of the decision
change of name.
granting
a
petition,
(7) Copy
of
exercise the power to
judgments shall
impugn such decision by
be furnished the
way of an objection.
civil
registrar
concerned
who
Grounds for objection
shall annotate the
(a) The error is not
same
in
the
clerical
or
292
UP LAW BOC
SPECIAL PROCEEDINGS
Rule 103
Rule 108
records
REMEDIAL LAW
RA 9048
typographical
(b) The correction of an
entry or entries in the
civil
register
is
substantial
or
controversial as it
affects the civil status
of a person
(c) The basis used in
changing the first
name or nickname of
a person does not fall
under one of the valid
grounds.
If the civil registrar
general fails to exercise
his power to impugn the
decision of the city or
municipal registrar or of
the consul general within
the period, such decision
shall become final and
executory.
(6) The civil registrar general
shall immediately notify
the city or municipal civil
registrar or the consul
general of the action
taken on the decision.
(7) Upon receipt of the notice
thereof, the city or
municipal civil registrar
or the consul general
shall notify the petitioner
of such action.
(8) Appeal. The petitioner
may seek reconsideration
with the civil registrar
general or file the
appropriate petition with
the proper court.
293
UP LAW BOC
Opposition
SPECIAL PROCEEDINGS
Rule 103
Any interested person
Rule 108
Civil registrar and any
person having or
claiming
interest
under the entry whose
cancellation
or
correction is sought
Entries subject to
cancellation
or
correction:
(1) Birth
(2) Marriage
(3) Death
(4) Legal separation
(5) Judgment
of
annulment
(6) Judgment
declaring
marriage
null
and void
(7) Legitimation
(8) Adoption
(9) Acknowledgment
of
natural
children
(10) Naturalization
(11) Election, loss or
recovery
of
citizenship
(12) Civil interdiction
(13) Judicial
determination of
filiation
(14) Voluntary
emancipation of
minor
(15) Changes of name
294
REMEDIAL LAW
RA 9048
N/A
Note: The Civil Registrar
General is given the power to
object to the decision of the
Local Civil Registrar.
Sec. 4: Grounds for Change
of First Name or Nickname
(1) The first name or
nickname is ridiculous,
tainted with dishonor or
extremely difficult to
write or pronounce.
(2) The new first name or
nickname
has
been
habitually
and
continuously used by the
petitioner and he has
been publicly known by
the first name or
nickname
in
the
community.
(3) The change will avoid
confusion.
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
REMEDIAL LAW
CRIMINAL PROCEDURE
295
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REMEDIAL LAW
I. GENERAL MATTERS
CRIMINAL JURISDICTION
STATUTE APPLICABLE
Jurisdiction over
person of the
accused
Refers
to
the
authority of the
court to hear and
determine
a
particular criminal
case
Refers
to
the
authority of the
court
over
the
person charged
Conferred by law;
can
never
be
acquired solely by
consent
of
the
accused
May be acquired by
consent
of
the
accused
or
by
waiver of objections
Right to object is
never waived; the
absence
of
jurisdiction over the
subject matter may
be raised at any
stage
of
the
proceeding
A.1. JURISDICTION
MATTER
OVER
IMPOSABLE PENALTY
In determining whether or not the court has
jurisdiction over an offense, we consider the
penalty which may be imposed upon the
accused and not the actual penalty imposed
after the trial [People v. Purisima (1976)]
PRINCIPLE
OF
JURISDICTION
ADHERENCE
OF
SUBJECT
296
UP LAW BOC
CRIMINAL PROCEDURE
REMEDIAL LAW
RTC
Sandiganbayan
297
UP LAW BOC
CRIMINAL PROCEDURE
(5)
(6)
(7)
(8)
298
REMEDIAL LAW
classified as Grade 27
and up under the
Compensation
and
Position Classification Act
of 1989;
(c) Members of the judiciary
without prejudice to the
provisions
of
the
Constitution;
(d) Chairmen and members
of
Constitutional
Commissions,
without
prejudice
to
the
provisions
of
the
Constitution;
(e) All other national and
local officials classified as
Grade 27
(2) Other offenses or felonies
whether simple or complexed
with other crimes committed
by public officials and
employees in relation to their
office. The following must
concur:
(a) Accused is any one of the
public
officials
enumerated in subsection
(a) of Sec. 4 of RA 8249,
Grade 27 or higher
(b) Accused commits any
other offense or felony,
than those specified in
subsec. (a), whether
simple or complexed with
other crimes
(c) The offender commits
such other offense or
felony in relation to his
office
(3) Cases filed in pursuant to and
in connection with EO 1, 2, 14,
14-A (1986).
II. PROSECUTION OF
OFFENSES
A.
CRIMINAL
INSTITUTED
ACTIONS;
HOW
A.1 IN GENERAL
The institution of a criminal action generally
depends upon whether the offense is one
which requires a preliminary investigation or
not.
A criminal action is commenced by the filing of
a complaint or information. The complaint may
be filed either with the MTC or with a public
prosecutor for purposes of conducting a
preliminary investigation.
A.2.
OFFENSES
REQUIRING
PRELIMINARY INVESTIGATION
Offenses
which
require
preliminary
investigation are those where the penalty
prescribed by law is at least 4 years, 2 months
and 1 day [Sec. 1, Rule 112].
The criminal action is instituted by filing the
complaint with the appropriate officer for
preliminary investigation [Sec. 1(a), Rule 110].
ON
SUSPENSION
OF
PRESCRIPTIVE
PERIODS IN CASES FALLING UNDER THE
AUTHORITY OF THE LUPON
BE
B.3.B. DESISTANCE
PARTY
BY
OFFENDED
Pardon
Consent
In order to absolve
the accused from
liability, it must be
extended to both
offenders
In order to absolve
the accused from
liability,
it
is
sufficient even if
granted only to the
offending spouse
SUBSEQUENT MARRIAGE
The marriage of the offender with the offended
party shall extinguish the criminal action or
remit the penalty already imposed upon him,
together with the co-principals, accomplices
and accessories after the fact of the abovementioned crimes. (RPC, Art. 344)
301
Except:
(1) In adultery and concubinage
(2) Marriage was invalid or contracted in bad
faith to escape criminal liability [People v.
Santiago (1927)]
(3) In private libel, or the libelous
imputation to the complainant of the
commission of the crimes of concubinage,
adultery, seduction, abduction, or acts of
lasciviousness, and in slander by deed
[People v. Orzame (39 O.G. 1168)]
(4) In multiple rape, insofar as the other
accused in the other acts of rape
respectively committed by them are
concerned [People v. Bernardo (38 O.G.
3479)]
C. CRIMINAL
ENJOINED
ACTIONS;
D. CONTROL OF PROSECUTION
General rule: All criminal actions commenced
by a complaint or information shall be
prosecuted under the direction and control of
the prosecutor [Section 5, Rule 110].
Exceptions:
The private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or
the Regional State Prosecutor to prosecute the
case subject to the approval of the court.
(1) In case of heavy work schedule of the
public prosecutor or
(2) In the event of lack of public prosecutors,
WHEN
Exceptions:
(1) To afford protection to the constitutional
rights of the accused;
(2) Necessary for the orderly administration of
justice or to avoid multiplicity of actions;
(3) There is a prejudicial question which is sub
judice;
(4) The acts of the officer are without or in
excess of authority;
(5) The prosecution is under an invalid
law/ordinance/regulation;
(6) When double jeopardy is clearly apparent;
(7) The court has no jurisdiction over the
offense;
(8) A case of persecution rather than
prosecution;
(9) The charges are manifestly false and
motivated by the lust for vengeance;
(1)
(2)
(3)
(4)
E. SUFFICIENCY OF COMPLAINT OR
INFORMATION
A complaint is a sworn written statement
charging a person with an offense, subscribed
by the offended party, any peace officer or
other public officer charged with the
enforcement of the law violated [Section 3,
Rule 110].
D.1.D.
EFFECT
OF
LACK
INTERVENTION OF FISCAL
OF
Complaint
Information
Subscribed by the
offended party, any
peace officer or
other
officer
charged with the
enforcement of the
law violated.
Subscribed by the
fiscal. (Indispensible
requirement. Lack of
authority of the
officer signing it
cannot be cured by
silence, acquiescence
or even express
consent.)
Must be sworn
hence, under oath.
Requires no oath.
The fiscal filing the
information
is
acting under the
oath of his office.
Usually refers to
felonies
which
cannot
be
prosecuted
de
officio.
Usually refers
public crimes.
to
TEST OF SUFFICIENCY
(1) A complaint or information is sufficient if it
states:
(2) The name of the accused;
(3) The designation of the offense given by the
statute;
303
WHERE
THE
EXCEPTIONS
LAW
PRESCRIBES
Exceptions:
(1) Complex crimes;
(2) Special complex crimes;
(3) Continuous crimes;
(4) Crimes susceptible of being committed
in various modes;
(5) Crimes which another offense is an
ingredient [People v. Camerino (1960)].
G. AMENDMENT OR SUBSTITUTION
OF COMPLAINT OR INFORMATION
KINDS OF AMENDMENT:
(1) Formal Amendment merely states with
additional precision something which is
already contained in the original
information, and which, therefore adds
nothing essential for conviction for the
crime charged [Gabionza v. CA (2001)]
REMEDY
The filing of a motion to quash is the remedy in
case of duplicity of offense in an information.
306
G.2.B. AS TO SUBSTANCE
(2) Substantial amendment consists of the
recital of facts constituting the offense
charged and determinative of the
juridisdiction of the court. All other matters
are merely of form [Teehankee v. Madayag
(1985)]
G.3. SUBSTITUTION
Substitution of a complaint or information may
be substituted if it appears at any time before
judgment that a mistake has been made in
charging the proper offense, the court shall
dismiss the original complaint or information
upon the filing of a new one charging the
proper offense, provided the accused would
not be placed in double jeopardy [Section 14,
Rule 110].
AND
Limitations:
(1) No judgment has yet been rendered;
(2) The accused cannot be convicted of the
offense charged or of any other offense
necessarily included therein;
G.2.A. AS TO FORM
Amendment as to form can only be made
under two conditions:
(1) Leave of court must be secured;
307
Substitution
Formal
or
substantial changes
Substantial changes
Can be effected
without leave of
court
Only as to form,
there is no need for
another PI and
retaking of plea
Another
PI
is
entailed
and
accused has to
plead anew
The
amended
information refers to
the same offense
charged
in
the
original information
or to an offense
which is included in
the original charge;
can invoke double
jeopardy
Involves a different
offense which does
not include those
provided in the
original
charge;
cannot
invoke
double
jeopardy
[Teehankee
v.
Madayag (1992)]
Exceptions:
(1) Felonies under Article 2, RPC, which are
cognizable by the proper court where
criminal action was first filed;
(2) Those committed on a railroad train,
aircraft, or any other public or private
vehicle in the court of its trip, which may be
instituted and tried in the court of any
municipality or territory where such train,
aircraft, or other vehicle passed during
such trip, including place of departure and
arrival;
(3) Those committed on board a vessel in the
course of its voyage, which may be
instituted and tried in the proper court of
the first port of entry or of any municipality
or territory through which vessel passed,
subject to the generally accepted
principles of international law;
(4) Piracy, which has no territorial limits and
may be instituted anywhere [People v. Lollo and Saraw (1922)];
(5) Libel, which may be instituted at the
election of the offended party or suing
party in the province or city, subject to
Article 360, RPC;
(6) In cases filed under BP 22, which may be
filed in the place where the check was
dishonored or issued, or in case of a crosscheck, in the place of the depositary or
collecting bank;
(7) For violations of RA 10175 (Cybercrime
Prevention Act of 2012), the RTCs have
jurisdiction over any violation of the
provisions of the Act, including any
violation committed by a Filipino national
regardless of the place of commission (Sec.
21);
(8) In exceptional circumstances, where, to
ensure a fair trial and impartial inquiry, the
III. PROSECUTION OF
CIVIL ACTION
I. INTERVENTION OF OFFENDED
PARTY
MAY
Exceptions:
(1) Where, from the nature of the crime and
the law defining and punishing it, no civil
liability arises in favor of a private offended
party (e.g. treason, rebellion, espionage
and contempt);
(2) Where, from the nature of the offense, the
private offended party is entitled to civil
indemnity arising therefrom but he has
waived the same or has expressly reserved
his right to institute a separate civil action
or he has already instituted such action;
(3) Offended party has already instituted
action for civil claims.
309
E. PREJUDICIAL QUESTION
E.1. ELEMENTS
A prejudicial question is that which arises in a
case the resolution of which is a logical
antecedent of the issue involved therein, and the
cognizance of which pertains to another
tribunal.
310
E.2. EFFECT
General rule: Where both a civil and a criminal
case arising from the same facts are filed in
court, the criminal case takes precedence
[Section 2, Rule 111].
311
IV. PRELIMINARY
INVESTIGATION
A. NATURE OF RIGHT
A.1. DEFINITION
It is an inquiry or proceeding to determine
whether there is sufficient ground to engender
a well-founded belief that a crime has been
committed and the respondent is probably
guilty thereof, and should be held for trial
[Section 1, Rule 112].
Preliminary
Investigation
is
merely
inquisitorial, and it is often the only means of
discovering the persons who may reasonably
be charged with a crime, to enable the
prosecutor to prepare his complaint or
information. It is not a trial of the case on the
merits and does not place the persons against
whom it is taken in jeopardy.
A.2.
RIGHT
INVESTIGATION
TO
PRELIMINARY
B. PURPOSES OF
INVESTIGATION
PRELIMINARY
C.3. COMELEC
C.
WHO
MAY
CONDUCT
DETERMINATION OF EXISTENCE OF
PROBABLE CAUSE
C.4. OMBUDSMAN
The Ombudsman and his deputies, as
protectors of the people, shall act promptly on
complaints filed in any form or manner against
public officials or employees of the
Government, or any subdivision, agency or
instrumentality thereof, including GOCCs and
shall, in appropriate cases, notify the
complainants of the action taken and the
result thereof [Sec. 12, Article XI, Constitution].
C.1. PROSECUTOR
The executive determination of probable cause
is one made during the PI. It is a function that
properly pertains to the public prosecutor who
is given a broad range of discretion to
determine whether probable cause exists for
purposes of indictment. Such finding will not
be disturbed by the court unless there is finding
of grave abuse of discretion.
C.2. COURT
313
D.
RESOLUTION
OF
INVESTIGATING PROSECUTOR
THE
Defendants counter-affidavit
It must be made within 10 days from
receipt of complaint, and must comply
with the same requirements as a
complaint [Section 3(c), Rule 112].
If not made within 10 days, the
investigating officer shall resolve the
complaint based on the evidence
presented by the complainant [Section
3(d), Rule 112].
E. REVIEW
Clarificatory hearing
Hearing is conducted only if there are
such facts and issues to be clarified
from a party or a witness.
The investigator must conduct a
hearing within 10 days from receipt of
the counter-affidavit. The hearing must
be finished in 5 days.
Parties may be present evidence, but
they have no right to examine or crossexamine. Questions of parties shall be
submitted to the investigating officer.
Within 10 day after the investigation,
the officer shall determine whether or
not there is sufficient ground to hold
respondent for trial [Section 3(e), Rule
112].
314
G.
CASES
NOT
REQUIRING
PRELIMINARY INVESTIGATION NOR
COVERED BY THE RULE ON
SUMMARY PROCEDURE
These are cases punishable by imprisonment
of less than 4 years, 2 months and 1 day, and
filed with the prosecutor or MTC/MCTC.
315
H.2.
RESTRAINING
INVESTIGATION
If the judge is
satisfied
that
there is no need to
place the accused
under custody, he
may
issue
summons instead.
PRELIMINARY
I. INQUEST
316
V. ARREST
A. IMMUNITY
A.1. PARLIAMENTARY IMMUNITY
Senators and Members of the House of
Representatives, while Congress is in session
and for offenses punishable by not more than 6
years imprisonment are immune to arrest
[Section 11, Article VI, Constitution].
PROCEDURE
An inquest is considered commenced upon
receipt by the Inquest Officer from the law
enforcement
authorities
of
the
complaint/referral documents which should
include:
(1) Affidavit of arrest, investigation report,
statement of the complainant and
witnesses, all of which must be subscribed
and sworn to before him;
(2) Other supporting evidence gathered by the
police in the course of the latter's
investigation of the criminal incident
involving the arrested or detained person.
B. HOW MADE
317
Exceptions:
(1) In flagrante delicto [Section 5(a), Rule 113];
(2) Hot pursuit arrest [Section 5(b), Rule 113];
(3) Arrest of escaped prisoner [Section 5(c),,
Rule 113];
(4) Other lawful warrantless arrests:
(a) Where a person who has been lawfully
arrested escapes or is rescued [Section
13, Rule 113]; any person may
immediately pursue or retake him
without a warrant at any time and in
any place within the Philippines;
(b) By the bondsman, for the purpose of
surrendering the accused [Section 23,
Rule 114];
(c) Where the accused who is released on
bail attempts to leave the country
without permission of the court where
the case is pending [Section 23, Rule
114].
Requisites:
(1) The person to be arrested must execute an
overt act indicating that he has just
committed, is actually committing, or is
attempting to commit a crime; and
318
Requisites:
(1) An offense has just been committed. There
must be a large measure of immediacy
between the time the offense was
committed and the time of the arrest. If
there was an appreciable lapse of time
between the arrest and the commission of
the crime, a warrant of arrest must be
secured [People v. del Rosario (1999);
People v. Agojo (2009)]; and
(2) The person making the arrest has probable
cause to believe, based on personal
knowledge of facts, that the person to be
arrested has committed it.
C.4.B. WAIVER
Any objection involving the arrest or the
procedure in the courts acquisition of
jurisdiction over the person of an accused must
be made before he enters his plea; otherwise
the objection is deemed waived [Zalameda v.
People (2009)].
Escapee may be immediately pursued or rearrested without a warrant at any time and in
any place within the Philippines [Section 13,
Rule 113].
319
D. METHOD OF ARREST
D.1. BY OFFICER WITH WARRANT
D.1.A. DUTIES OF ARRESTING OFFICER
E. REQUISITES OF
WARRANT OF ARREST
F. DETERMINATION OF PROBABLE
CAUSE FOR ISSUANCE OF WARRANT
OF ARREST
Probable cause, in connection with the
issuance of a warrant of arrest, assumes the
existence of facts and circumstances that
would lead a reasonably discreet and prudent
man to believe that a crime has been
committed and that it was likely committed by
the person sought to be arrested [People v. Tan
(2009)].
VALID
Judge
Executive
determination of PC
Judicial determination
of PC
Determination of PC
to hold a person for
trial
Determination of PC
to issue a warrant of
arrest
Whether or not a
warrant of arrest
should be issued
321
VI. BAIL
A. NATURE
A.1. DEFINITION
A.2. PURPOSE
(1) To relieve an accused from imprisonment
until his conviction and yet secure his
appearance at the trial [People v. Hon.
Donato (2011)];
(2) To honor the presumption of innocence
until his guilt is proven beyond reasonable
doubt [Section 14, Article III, Constitution];
and
(3) To enable him to prepare his defense
without being subject to punishment prior
to conviction [Cortes v. Judge Catral (1997)].
Exceptions:
(1) If the judge of the court where the case is
pending is absent or unavailable, the
application may be filed with any
RTC/MTC/MeTC/ MCTC judge in the
province, city or municipality;
(2) Where the accused is arrested in a province,
city/municipality other than where the
case is pending, the application may be
filed with any RTC of the said place. If no
judge is available, then with any
MeTC/MTC/MCTC judge in the said place.
Judge who accepted the application shall
forward it, together with the order of
release and other supporting papers where
the case is pending;
(3) When a person is in custody but not yet
charged, he may apply with any court in
the province or city/municipality where he
is held [Sec. 17, Rule 114].
324
G. INCREASE OR REDUCTION OF
BAIL
After the accused is admitted to bail and for
good cause, the court may increase or decrease
the amount.
325
of
J.
HOLD/ALLOW
DEPARTURE
ORDER
AND
BUREAU
OF
IMMIGRATION WATCHLIST
Watchlist Order
When it
may issue
Validity
Grounds for
lifting or
cancellatio
n
327
EQUIPOSE RULE
A. RIGHT TO BE PRESUMED
INNOCENT UNTIL THE CONTRARY IS
PROVED BEYOND REASONABLE
DOUBT
Requisites:
(1) Prior arraignment;
(2) Proper notice of the trial;
(3) Failure to appear is unjustifiable
[Parada v. Veneracion (1997)].
REQUIREMENTS OF WAIVER:
(1) Existence of the right;
(2) Knowledge of the existence thereof;
(3) Intention to relinquish which much be
shown clearly and convincingly; and
(4) Where the Constitution or law provides, it
must be with the assistance of counsel to
be valid.
Effects of waiver of right to appear by the
accused:
(1) Waiver of the right to present evidence and
cross-examine witnesses;
(2) Prosecution can present evidence if
accused fails to appear; and
(3) The court can decide without accuseds
evidence.
E.
RIGHT
AGAINST
INCRIMINATION
SELF-
F. RIGHT TO CONFRONTATION
This applies to any witness against the accused
at the trial.
G.
RIGHT
PROCESS
TO
I. RIGHT TO APPEAL
In all criminal prosecutions, the accused shall
have the right to appeal in the manner
prescribed by law [Hilario v. People (2008)].
COMPULSORY
PLEA
Pertains to the matter which the accused, on
his arraignment, alleges in answer to the
charge against him.
VIII. ARRAIGNMENT
AND PLEA
A. ARRAIGNMENT AND PLEA; HOW
MADE
This is the stage where the accused is formally
informed of the charge against him by reading
before him the information/complaint and
asking him whether he pleads guilty or not
guilty [Section 1(a), Rule 116].
334
335
E. SEARCHING INQUIRY
The procedure in Section 3, Rule 116, when the
accused pleads guilty to a capital offense, is
mandatory.
The plea must be clear, definite and
unconditional. It must be based on a free and
informed judgment.
336
337
G.2. EXISTENCE
QUESTION
OF
Such as:
(1) Motion to quash
(2) Motion for inhibition; and
(3) Motion for Bill of particulars
PREJUDICIAL
A. WHEN FILED
General Rule: At any time before entering his
plea, the accused may move to quash the
complaint or information [Section 1, Rule 117].
FOR
338
B. GROUNDS
In general
The following grounds for MTQ are exclusive:
(1) Facts charged do not constitute an offense;
(2) Court trying the case has no jurisdiction
over the offense charged;
(3) Court trying the case has no jurisdiction
over the person of the accused;
(4) Officer who filed the information had no
authority to do so;
(5) The information does not conform
substantially to the prescribed form;
(6) More than one offense is charged, except
when a single punishment for various
offenses is prescribed by law;
(7) Criminal action or liability has been
extinguished;
(8) Averments which, if true, would constitute
a legal excuse or justification;
(9) Accused has been previously convicted or
acquitted of the offense charged, or the
case against him was dismissed or
otherwise terminated without his express
consent (Section 3, Rule 117).
339
or
liability
has
Grant is deemed an
acquittal and would
preclude the filing
of
another
information
or
appeal
by
the
prosecution
If the court, in
denying the motion
to quash acts with
grave abuse of
discretion,
then
certiorari
or
prohibition lies
been
Filed
after
prosecution
rested its case
the
has
Ground
is
insufficiency
of
evidence to convict
Interlocutory
Final Order
Not
appealable
absent a showing of
GAD. If there is
GAD,
then
file
petition for certiorari
Immediately
appealable
but
subject to rules on
double jeopardy
Proper
remedy:
appeal after the trial
Proper
remedy:
appeal the order
Consequence:
Arraignment
Consequence:
Amend information
if possible
Double jeopardy
The right against double jeopardy prohibits the
prosecution for a crime of which he has been
previously convicted or acquitted [Caes v. IAC
(1989)].
Rule of double jeopardy
When a person is charged with an offense and
the case is terminated either by acquittal or
conviction or in any other manner without the
express consent of the accused, the latter
cannot again be charged with the same or
identical offense (Section 3(i), Rule 117).
Same act
An offense penalized by ordinance is, by
definition, different from an offense penalized
under a statute. Hence, they would never
constitute double jeopardy.
However, the second sentence of the
constitutional protection was precisely
intended to extend to situations not covered by
the first sentence. Although the prior offense
charged under an ordinance be different from
the offense charged under a national statute,
the constitutional protection is available
provided that both arise from the same act or
set of acts [People v. Relova (1987)].
Exceptions:
(1) The graver offense developed due to
supervening facts arising from the same
343
Double
jeopardy
always attaches
Grounds
Acquittal
beyond reasonable
doubt
Provisional dismissal
Dismissal
innocence or guilt
344
X. PRE-TRIAL
Coverage
The court shall order pre-trial in all criminal
cases cognizable by the Sandiganbayan, RTC
and MTC or MTCC or MCTC or MeTC.
Period
General rule: The court shall order a pre-trial
conference after arraignment and within 30
days from the time the court acquires
jurisdiction over the person of the accused.
Plea bargaining
It is the process in criminal procedure whereby
the accused, offended party, and the
prosecution work out a mutually satisfactory
disposition of the case subject to court
approval (See DOJ Circ. No. 35, as amended by
Circ. No. 55 for the guidelines on plea
bargaining as well as note on Rule 116).
It usually involves the defendant pleading
guilty to a lesser offense or to one or some of
the counts of a multi-count indictment in
return for a lighter sentence than that for the
graver charge [People v. Mamarion (2003)].
The conviction of the accused of the lesser
offense precludes the filing and prosecution of
the offense originally charged in the
information, except when the plea of guilty to a
lesser offense is without the consent of the
offended party and the prosecutor (People v. De
Luna (1989); Section 7(c), Rule 117; see Section 2,
Rule 116).
Things considered
(1) Plea bargaining;
(2) Stipulation of facts;
(3) Marking for identification of evidence;
(4) Waiver of objections to admissibility of
evidence;
(5) Modification of the order of trial if accused
admits the charge but interposes a lawful
defense (reverse trial);
(6) Other matters that will promote a fair and
expeditious trial of the civil and criminal
aspects of the case (Section 1, Rule 118).
Role of the judge
During the pre-trial, the judge shall be the one
to ask questions on issues raised therein and
all questions must be directed to him to avoid
hostilities between the parties (AM 03-1-09SC).
Stipulation of facts
This is no longer prohibited in criminal cases
(People v. Hernandez (1996)).
However, in a case of rape with the allegation
that the victim is below 12 years of age which
qualifies said crime and increases its penalty to
346
Pre-trial agreement
Form
(1) Must be in writing;
(2) Signed by the accused;
(3) Signed by his counsel,
If this is not followed, the admissions cannot
be used against the accused (i.e., inadmissible
in evidence). The constitutional right to present
evidence is waived expressly.
Pre-trial order
Issuance
The pre-trial order is:
(1) Issued by the court;
(2) Within 10 days after the pre-trial (AM 03-109-SC).
Effect
The stipulations become binding on the parties
who made them. They become judicial
admissions of the fact or facts stipulated.
Even if placed at a disadvantageous position, a
party may not be allowed to rescind them
unilaterally;
he
must
assume
the
consequences of the disadvantage (Bayas v.
Sandiganbayan (2002)).
Content
(1) Actions taken;
(2) Facts stipulated;
(3) Evidence marked;
(4) Admissions made;
(5) The number of witnesses to be presented;
and
(6) The schedule of trial [Section 4, Rule 118].
XI. TRIAL
Factors to consider:
(1) Duration of the delay;
(2) Reason therefor;
(3) Assertion of the right or failure to assert it;
and
(4) Prejudice caused by such delay [Mari and
People v. Hon. Gonzales (2011)].
Must be raised prior to trial; otherwise, the
right to dismiss is considered waived under
Section 9, Rule 119.
Conditional examination
When it satisfactorily appears that a witness
for the prosecution is too sick or infirm to
appear at the trial as directed by the court, or
has to leave the Philippines with no definite
date of returning, he may forthwith be
conditionally examined before the court where
the case is pending.
Such examination, in the presence of the
accused, or in his absence after reasonable
notice to attend the examination has been
served on him, shall be conducted in the same
manner as an examination at the trial.
Failure or refusal of the accused to attend the
examination after notice shall be considered a
waiver. The statement taken may be admitted
in behalf of or against the accused (Section 15,
Rule 119).
Burden of proof
The accused has the burden of proving the
ground of denial of right to speedy trial for the
motion.
The prosecution has the burden of going
forward with the evidence to establish the
exclusion of time under Section 3, Rule 119.
This is subject to the rules on double jeopardy.
Hence, if with prejudice, the case cannot be
revived anymore.
Requisites for discharge of accused to become
a state witness
Discharge of a co-accused
It is the duty of the prosecutor to include all the
accused in the complaint/information.
He may ask the court to discharge one of them
after complying with the conditions prescribed
by law (Rule 119, Sec. 17). This applies only
when the information has already been filed in
court.
Thus, even the state witness is include as
accused prior to discharge.
Trial in absentia
Requisites:
(1) Accused has been arraigned;
(2) He was duly notified of trial;
(3) His failure to appear is unjustified.
Ratio: This is to speed up disposition of cases.
349
Requisites
(1) Two or more persons are jointly charged
with the commission of any offense.
(2) Upon motion of the prosecution before
resting its case
(3) Petition for discharge is filed before the
defense has offered its evidence. [People v.
Anion (1988)]
(4) Hearing in support of the discharge where
the prosecution is to present evidence and
the sworn statement of each proposed
state witness.
(5) The court is satisfied of the following:
(a) Absolute necessity for the testimony of
the accused whose discharge is
requested; This means he alone has
the knowledge of the crime, and not
when his testimony would simply
corroborate or strengthen the evidence
in the hands of the prosecution. [Flores
v. Sandiganbayan (1983)];
(b) There is no other direct evidence
available for the proper prosecution of
the offense, except the testimony of
the said accused;
(c) The testimony can be substantially
corroborated in its material points;
(d) The accused does not appear to be the
most guilty;
(e) The accused has not, at any time, been
convicted of any offense involving
moral turpitude [Section 17, Rule 119].
350
How initiated
By the court motu proprio, after giving the
prosecution the opportunity to be heard;
Upon demurrer to evidence filed by the
accused:
(1) With leave of court;
(2) Without leave of court [Section 23, Rule 119].
adduce
in his
Purpose
is
to
determine whether
or not the demurrer
was filed merely to
stall
the
proceedings
Implied leave of
court is no longer
sufficient
and
prevents
accused
from
presenting
evidence
(e.g.
accused files motion
with reservation to
present evidence in
case
motion
is
denied)
If there are 2 or
more accused and
only one presents a
demurrer without
leave of court:
The court may defer
resolution
until
decision is rendered
on
the
other
accused
If it can be shown
from the decision
that the resolution
on the demurrer
was rendered not
only on the basis of
the
prosecutions
evidence but also on
the
evidence
adduced by his coaccused, then the
demurrer is deemed
resolved
XII. JUDGMENT
Contents of judgment
In case of conviction
(1) The judgment of conviction shall state:
(2) The legal qualification of the offense
constituted by the acts committed by the
accused and the aggravating/mitigating
circumstances
which
attended
its
commission;
(3) The participation of the accused in the
offense, whether as principal, accomplice
or accessory after the fact;
(4) The penalty imposed upon the accused;
(5) The penalty should not be imposed in the
alternative. There should be no doubt as to
the offense committed and the penalty for
it;
(6) The civil liability or damages caused by his
wrongful act/omission to be recovered
from the accused by the offended party, if
there is any, unless the enforcement of the
civil liability by a separate civil action has
been reserved/waived [Section 2, Rule 120].
Requisites of a judgment
A judgment is the adjudication by the court
that the accused is guilty or not guilty of the
offense charged and the imposition on him of
the proper penalty and civil liability, if any [Sec.
1, Rule 120]
Form
(1) Written in official language. If given
verbally, it is incomplete [People v. Catolico
(1972)];
(2) Personally and directly prepared by the
judge;
(3) Signed by the judge. The judge who
presided over the entire trial would be in a
better position to ascertain the truth or
falsity of the testimonies. But the judge
who only took over can render a valid
decision by relying on the transcript. It
does not violate due process [People v.
Badon (1999)];
(4) Contains clearly and distinctly a statement
of facts proved and the law upon which
judgment is based [Section 1, Rule 120].
352
In case of acquittal
The judgment of conviction shall state whether
the evidence of the prosecution absolutely
failed to prove the guilt of the accused or
merely failed to prove his guilt beyond
reasonable doubt. In either case, the judgment
shall determine if the act or omission
complained from which the civil liability might
arise did not exist [Sec. 2, Rule 120].
Acquittal
Dismissal
of
Promulgation
Promulgation is the official proclamation or
announcement of a judgment or order.
Requisites:
(1) There must be a judge or judges legally
appointed or elected and actually acting
either de jure or de facto, and
(2) The said judgment must be duly signed
and promulgated during the incumbency
of the judge who signed it [Miguel v
Municipal Trial Court (1986)].
offenses
In all cases
The original judgment set aside or vacated;
A new judgment is rendered accordingly;
Other effects
Other specific effects (see table) also result
when granted upon different grounds (Section
6, Rule 121).
Ground
Effect
Errors
of
law
or
irregularities
committed
during the trial
Newly-discovered evidence
357
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law)
XIV. Appeal
Effect of an appeal
An appeal in a criminal proceeding throws the
whole case open for review and it becomes the
duty of the appellate court to correct an error as
may be found in the appealed judgment WON it
is made the subject of assignment of errors
[People v. Calayca (1999)].
Where to appeal
For cases decided by
REMEDIAL LAW
RTC
If it involves questions of
law only
If
it
involves
constitutionality
or
validity
of
any
treaty/law/ordinance/EO
/ regulation or the
jurisdiction of the inferior
court
In
criminal
cases
involving offenses for
which
the
penalty
imposed is death or life
imprisonment
Other offenses, which,
although
not
so
punished, arose out of
the same occurrence or
which may have been
committed
by
the
accused on the same
occasion, as that giving
rise to the more serious
offense
SC
CA or Sandiganbayan
SC
Appeal to
MTC/MeTC/MCTC
RTC
RTC or MTC/MeTC/
MCTC (if it is government
duty-related, i.e., filed
under EO 1, 2, 4 and 14A)
Sandiganbaya
n
CA
358
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REMEDIAL LAW
Exceptions:
Where a particular provision applies only to
either of said courts;
Criminal cases governed by the Revised Rules
on Summary Procedure [Section 1, Rule 123].
Submission of memoranda/briefs.
Within 15 days from receipt of said
notice, the parties may submit
memoranda/briefs, or may be required
by the RTC to do so.
359
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REMEDIAL LAW
Form of briefs
Briefs shall be printed/encoded/ typewritten, in
double space, on legal size good quality
unglazed paper, 330mm in length by 216mm in
width.
Mimeographed copies are not allowed [Section
6, Rule 124].
Content of briefs
The briefs in criminal cases shall have the same
contents as provided in Sections 13 to 14, Rule 44
[Section 7, Rule 124] .
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REMEDIAL LAW
361
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REMEDIAL LAW
362
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REMEDIAL LAW
363
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REMEDIAL LAW
Review of CA decisions
The procedure for the review by the SC of CA
decisions on criminal shall be the same as in
civil cases (Section 2, Rule 125).
General rule: The appellate jurisdiction of the
SC in cases brought to it from the CA is limited
to reviewing and revising the errors of law
incurred by the latter. The CAs findings of fact
are final. If an appeal in the SC involves
questions of facts, the SC has no jurisdiction
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REMEDIAL LAW
XV.
SEARCH
SEIZURE
AND
Definition
It is an order in writing; issued in the name of
the People of the Philippines; signed by a judge;
and directed to a peace officer, commanding
him to search for personal property described in
the warrant and bring it before the court
(Section 1, Rule 126).
If it is without the judges signature, it is fatally
defective.
Nature
A search warrant is in the nature of a criminal
process akin to a writ of discovery, employed by
the state to procure relevant evidence of a crime
[Malaloan v. CA (1994)].
It is not available to individuals in the course of
civil proceedings.
It is interlocutory in character it leaves
something more to be done, which is the
determination of the guilt of the accused.
365
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Constitutional safeguard
No search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after the
examination under oath/affirmation of the
complaint and the witness he may produce, and
particularly describing the place to be searched,
and the things/persons to be seized [Section 2,
Article III, 1987 Constitution].
Under the exclusionary rule, any evidence
obtained in violation of this is inadmissible for
any purpose in any proceeding [Section 3, 2nd
par., Article III, Constitution].
REMEDIAL LAW
Order directed to
the peace officer to
execute the warrant
by taking the person
stated therein into
custody that he may
be bound to answer
for the commission
of the offense
Doctrine of Attenuation
Under the doctrine of attenuation, despite the
illegality in obtaining evidence, such evidence
may be admissible if the connection between
the evidence and the illegal method is
sufficiently remote or attenuated so as to
dissipitate the taint [Wong Sun v. US (1963)].
Directed upon acts of the government, not
private persons
The constitutional protection is directed against
the acts of the government and its agents, not
private persons (People v. Marti (1991); People v.
Bongcarawan (2002)).
However, if the private person is acting upon
orders of government officials, the principle of
agency applies, because in fact such private
person is acting in the interest of government,
and is therefore subject to the prohibition
against unreasonable searches and seizures.
The
examination
must be under oath
or affirmation of the
complainant and his
witnesses.
Examination must
be under oath.
Form
It must particularly
describe the place
to be searched and
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It must particularly
describe the person
to be arrested.
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the things to be
seized.
When executed
Generally served in
the day time, unless
there be a direction
in the warrant that it
may be served at
any time of the day
or night [Section 9,
Rule 126]
Substance of application
A search warrant shall not issue except:
(1) Upon probable cause in connection with
one specific offense;
(2) To be determined personally by the judge;
(3) After examination under oath or affirmation
of the complainant and the witness he may
produce;
(4) Particularly describing the place to be
searched and the things to be seized which
may be anywhere in the Philippines [Section
4, Rule 126].
Issuance and form of search warrant
If the judge is satisfied of the existence of facts
upon which the application is based or that
there is probable cause to believe that they exist,
he shall issue the warrant, which must be
substantially in the form prescribed the Rules
[Section 6, Rule 126].
Thus, the search warrant must be in writing and
contain:
(1) Name of person against whom it is directed;
(2) Offense for which it was issued;
(3) The place to be searched and
(4) The description of the specific things to be
seized;
(5) A directive to law enforcement officers to
search and seize;
(6) And for them to bring in court the things
seized;
(7) Signature of the judge issuing it.
Period of validity
Valid for 10 days
[Section 9, Rule 126]
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Post service
Receipt of property seized
Receipt is given differently depending on the
presence of the lawful occupant. Thus:
(1) If the lawful occupant is present, the officer
seizing the property under the search
warrant must give a detailed receipt for the
same to the lawful occupant of the premises
in whose presence the search and seizure
were made.
(2) If the lawful occupant is not present, the
officer seizing the property under the search
warrant must, in the presence of at least
two witnesses of sufficient age and
discretion residing in the same locality,
leave a receipt in the place in which he
found the seized property [Section 11, Rule
126].
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Probable cause
Warrants issued upon probable cause
Probable cause means such facts and
circumstances which would lead a reasonably
discreet and prudent man to believe that an
offense has been committed, and that objects
sought in connection with the offense are in the
place sought to be searched [Santos v. Pryce
Gases Inc. (2007)].
This probable cause must be shown to be within
the personal knowledge of the complainant or
the witnesses he may produce and not based on
mere hearsay.
The probable cause must refer only to one
specific offense [Roan v. Gonzales (1986)].
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Exceptions:
Where, by the nature of the goods to be seized,
their description must be rather general, it is
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Limitations:
(a) It may not be used to launch unbridled
searches and indiscriminate seizures.
(b) It does not extend to a general exploratory
search made solely to find evidence of
defendants guilt (People v. Musa (1993)).
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Grounds
The following may be raised in the MTQ:
(1) Absence of probable cause at the time of
the issuance of the search warrant;
(2) Non-compliance with substantive and
procedural requisites, such as:
(a) No personal examination by the judge;
(b) More than one specific offense;
(c) No particular description (Bache & Co. v.
Ruiz (1971)).
Remedies
Employ any means to prevent the search
Without a search warrant, the officer cannot
insist on entering a citizens premises. If he does
so, he becomes an ordinary intruder.
The person to be searched may resist the search
and employ any means necessary to prevent it,
without incurring any criminal liability [People v.
Chan Fook (1921)].
Where to file
General rule: The motion must be filed before
the sala of the judge who issued it. Only the
court that issued the SW may order revocation
of search warrant or release of things seized
(Pagkalinawan v. Gomez (1967)).
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Requisites:
(1) It must appear that the right exists;
(2) That the person involved had knowledge,
(actual or constructive) of the existence of
such right;
(3) That the person had an actual intention to
relinquish the right.
XIV.
PROVISIONAL
REMEDIES
Nature
Provisional remedies in civil actions, insofar as
they are applicable, may be availed of in
connection with the civil action deemed
instituted with the criminal action [Section 1,
Rule 127].
Where the civil action has actually been
instituted, or proceeded independently of the
criminal action, these provisional remedies
cannot be availed of in the criminal action but
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Preliminary attachment
When proper
When the civil action is properly instituted in the
criminal action, the offended party may have
the property of the accused attached as security
for the satisfaction of any judgment that may be
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EVIDENCE
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I. General Principles
A. Concept of Evidence
B. Scope of the Rules of Evidence
C. Evidence in Civil Cases vs. Evidence in
Criminal Cases
D. Proof Versus Evidence
E. Factum Probans Versus Factum Probandum
F. Admissibility of Evidence
G. Burden of Proof and Burden of Evidence
H. Presumptions
I. Liberal Construction of the Rules of Evidence
J. Quantum of Evidence (Weight And Sufficiency
of Evidence)
In Criminal Cases
A. CONCEPT OF EVIDENCE
Offer
of
compromise NOT
an admission of
any liability
[Sec. 27, Rule 130]
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OF
Administrative
investigations
shall
be
conducted without necessarily adhering strictly
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Other Classifications
Cumulative and Corroborative Evidence
Cumulative
Corroborative
Evidence
Evidence
Evidence
Prima Facie
Conclusive
Standing
alone,
unexplained
or
uncontradicted,
is
sufficient to maintain the
proposition affirmed
Class of evidence
which the law does
not allow to be
contradicted
E. FACTUM PROBANS
FACTUM PROBANDUM
Facrum Probans
Facts
or
evidencing
proposition
VERSUS
Facrum Probandum
Secondary
Best evidence
Substitutionary evidence
Inferior
to
primary;
permitted only when the
best evidence is not
available
F. ADMISSIBILITY OF EVIDENCE
Requisites for admissibility of evidence
Evidence is admissible when it is:
(1) Relevant to the issue; and
(2) Competent i.e. not excluded by law or the
ROC. [Sec. 3, Rule 128]
fact
be
When determined
Admissibility is determined at the time the
evidence is offered to the court
[Sec 35, Rule 132]
Every objection to the admissibility of evidence
shall be made at the time such evidence is
offered, or as soon thereafter as the objection to
its admissibility have become apparent,
otherwise the objection shall be considered
waived. [Abrenica v. Gonda, 94 Phil. 739]
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In case of:
Testimonial evidence - objection to the
qualification of the witness must be made
at the time he is called to the stand and if
the witness is qualified, objections should
be raised when the objectionable question
is asked or after the answer was given if the
objectionable feature became apparent by
reason of such answer.
Object or real evidence - objection must be
made either at the time it is presented in an
ocular inspection or demonstration or when
it is formally offered.
Documentary evidence objection must be
made at the time it is formally offered. [Sec.
35 to 37, Rule 132]
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probability or improbability of the fact in
dispute. They are evidence of relevant
collateral facts. [Regalado]
Competence
Evidence is competent when it is not be
excluded by (i) law or (ii) the ROC [Sec. 3,
Rule 128]
Determined by the prevailing exclusionary
rules of evidence [Regalado]
Exclusionary rules of evidence by law are
either constitutional or statutory.
o Constitutional exclusionary rules
Unreasonable searches and seizures [Sec.
2, Art. III]; privacy of communication and
correspondence [Sec. 3, Art. III]; right to
counsel, prohibition on torture, force,
violence, threat, intimidation or other
means which vitiate the free will;
prohibition on secret detention places,
solitary, incommunicado. [Sec. 12, Art. III];
right against self-incrimination [Sec. 17,
Art. III]
o Statutory exclusionary rules
Lack of documentary stamp tax to
documents required to have one makes
such document inadmissible as evidence
in court until the requisite stamp/s shall
have been affixed thereto and cancelled
[Sec. 201, NIRC]; Any communication
obtained by a person, not being
authorized by all the parties to any
private communication, by tapping any
wire/cable
or
using
any
other
device/arrangement
to
secretly
overhear/intercept/record
such
information by using any device, shall not
be admissible in evidence in any judicial /
quasi-judicial / legislative/ administrative
hearing or investigation. [Secs. 1 and 4,
R.A. 4200 (Wire-Tapping Act)]
Under the ROC, Rule 130 is the applicable
rule in determining the admissibility of
evidence.
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Doctrines of admissibility
Multiple admissibility
Where the evidence is relevant and competent
for two or more purposes, such evidence shall
be admitted for any or all the purposes for
which it is offered, provided it satisfies all the
requisites of law for its admissibility therefor.
[Regalado]
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Direct v. Circumstantial
Conditional admissibility
Where the evidence at the time of its offer
appears to be immaterial or irrelevant unless it
is connected with the other facts to be
subsequently proved, such evidence may be
received, on condition that the other facts will
be proved thereafter; otherwise, the evidence
already given shall be stricken out.
Direct Evidence
Circumstantial
Negative Evidence
Witness
affirms Witness states he/she did
that a fact did or not see or know of the
did not occur
occurrence of a fact
Competence v. Credibility
Competence
Credibility
Curative admissibility
Where the court has admitted incompetent
evidence adduced by the adverse party, a party
has a right to introduce the same kind of
evidence in his/her behalf. [Regalado]
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H. PRESUMPTIONS
Conclusive
Disputable
Satisfactory
if
uncontradicted, but
may be contradicted
and overcome by
other evidence. [Sec.
3, Rule 131]
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Considered to have been
conceived
during
the
subsequent marriage, even
though it be born within
the 300 days after the
termination of the former
marriage.
384
The older
The younger
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Substantial evidence
Degree of evidence required in cases filed
before administrative or quasi-judicial bodies.
[Sec. 5, Rule 133]
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A.
What Need Not be Proved
B.
Matters of Judicial Notice
C.
Judicial Admissions
D.
Judicial Notice of Foreign Laws, Law of
Nations and Municipal Ordinance
Discretionary
(1) Matters of public knowledge;
(2) Matters capable of unquestionable
demonstration; and
(3) Matters ought to be known to judges
because of their judicial functions. [Sec. 2,
Rule 129]
Requisites:
For the court to take judicial notice, three
material requisites should be present:
(a) The matter must be one of common and
general knowledge;
(b) It must be well and authoritatively settled
and not doubtful or uncertain;
Judicial Notice
Judicial notice is the cognizance of certain facts
that judges may properly take and act on
without proof because these facts are already
known to them. Put differently, it is the
assumption by a court of a fact without need of
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C. JUDICIAL ADMISSIONS
To be a judicial admission, the same:
(1) Must be made by a party to the case;
(2) Must be made in the course of the
proceedings in the same case; and
Note: As regards judicial admissions
made in the trial of another case, the
same would be considered an
extrajudicial admission for the purpose
of the other proceeding where such
admission is offered. [Riano]
(3) May be verbal or written.
[Sec. 4, Rule 129]
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Attested copy
(1) Attestation must be made by the officer
having legal custody of the record or by his
deputy. (Sec. 24, Rule 132)
(2) It must state, in substance, that the copy is
a correct copy of the original, or a specific
part thereof (Sec. 25, Rule 132)
(3) It must be under the official seal of the
attesting officer, if there be any, or if he be
a clerk of court having a seal, under the
seal of such court. (Sec. 25, Rule 132)
(4) It must be accompanied by a certificate
that attesting officer has custody
(Sec. 24, Rule 132)
(a) The certificate may be made by a
secretary of the embassy or legation,
consul general, consul, vice consul, or
consular agent or by any officer in the
foreign service of the Philippines
stationed in the foreign country in which
the record is kept, and authenticated by
the seal of his office.
Law of Nations
The Philippines adopts the generally accepted
principles of international law as part of the law
of the land. [Sec. 2, Art. II, 1987 Constitution]
Being part of the law of the land, they are
therefore in the nature of local laws, and hence,
subject to mandatory judicial notice under Sec. 1
of Rule 129.
Municipal Ordinances
Municipal trial courts are required to take
judicial notice of the ordinances of the
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A.
Relevant
General Rule: When an object is relevant to the
fact in issue, it may be exhibited to, examined or
viewed by the court.
[Sec. 1, Rule 130]
Exceptions: Court may refuse exhibition of
object evidence and rely on testimonial
evidence alone if
(1) Exhibition is contrary to public policy,
morals or decency;
(2) It would result in delays, inconvenience,
unnecessary expenses, out of proportion to
the evidentiary value of such object; [People
v. Tavera (47 Phil. 645 March 17, 1925)]
(3) Evidence would be confusing or misleading.
(4) The testimonial or documentary evidence
already presented clearly portrays the
object in question as to render a view
thereof unnecessary
B.
REQUISITES
ADMISSIBILITY
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FOR
Competent
Evidence be Authenticated
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(a) by the person who made the
recording, or
(b) by some other person competent to
testify on the accuracy thereof [Sec. 1,
Rule 11, Rules on Electronic Evidence]
How Proven
(1) by the testimony of a person who was a
party to the same;
(2) by the testimony of a person who has
personal knowledge thereof; or
(3) in the absence or unavailability of such
witnesses, by other competent evidence
[Sec. 2, Rule 11, Rules on Electronic Evidence]
C.
CATEGORIES
EVIDENCE
OF
OBJECT
Non-Unique Objects
Objects with no identifying marks and cannot
be marked, e.g., narcotic substances
D.
DEMONSTRATIVE EVIDENCE
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DNA evidence
The totality of the DNA profiles, results and
other genetic information directly generated
from DNA testing of biological samples.
[Sec. 3(c)]
Application for DNA testing order
With prior court order
(1) The appropriate court may, at any time,
either (i) motu proprio or (ii) on application
of any person who has a legal interest in
the matter in litigation, order a DNA
testing.
(2) Such order shall issue after due hearing
and notice to the parties upon a showing of
the following:
(a) A biological sample exists that is
relevant to the case;
(b) The biological sample: (i) was not
previously subjected to the type of
DNA testing now requested; or (ii) was
previously subjected to DNA testing,
but the results may require
confirmation for good reasons;
(c) The DNA testing uses a scientifically
valid technique;
(d) The DNA testing has the scientific
potential to produce new information
that is relevant to the proper
resolution of the case; and
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A. MEANING
EVIDENCE
OF
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DOCUMENTARY
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(2)
(3)
(4)
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directly
thereby
Meaning of authentication
The preliminary step in showing the
admissibility of evidence
Proving that the objects and documents
presented in evidence are not counterfeit
Public and private documents
Contemplates
the Presupposes that the
situation wherein the original document is
original writing is not available in court
available and/or there is
a dispute as to whether
said writing is the
original
Private Documents
Public Documents
When offered as
authentic,
due
execution
and
authenticity must be
proved
Admissible
without
further proof of its due
execution
and
authenticity
Prohibits
the Prohibits the varying
introduction
of of the terms of a
substitutionary evidence written agreement
in lieu of the original
document regardless of
WON it varies the
contents of the original
affected
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PUBLIC DOCUMENTS
Kinds of public documents
Written official acts or records of the official acts
of the sovereign authority, official bodies and
tribunals, and public officers, whether of the
Philippines or of a foreign country
Public records, kept in the Philippines, of private
documents required by law to be entered
therein
Notarial documents (except last wills and
testaments) [Rule 132, Sec. 19]
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V. Testimonial Evidence
REMEDIAL LAW
A. QUALIFICATIONS OF A WITNESS
Witness Defined
A witness is one who, being present, personally
sees or perceives a thing, a beholder, spectator
or eyewitness. One who testifies to what he has
seen or heard, or otherwise observed. [Herrera
citing Blacks Law Dictionary]
B.
COMPETENCY
CREDIBILITY
VERSUS
Competence
Credibility
When determined
Qualification of a witness is determined at the
time the said witness are produced for
examination or at the taking of their depositions.
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Competency presumed
A person who takes the witness stand is
presumed to possess the qualifications of a
witness. His competence may be questioned by
the other party by interposing an objection.
[Herrera, pg. 280]
C.
DISQUALIFICATIONS
WITNESSES
REMEDIAL LAW
OF
Effect of Relationship
Mere relationship does not impair credibility. To
warrant rejection, it must be clearly shown:
(1) Testimony was inherently improbable or
defective
(2) Improper/evil motives had moved the
witness to incriminate falsely
Unsound mind
(1) Includes
any
mental
aberration
(organic/functional),
induced
by
drugs/hypnosis
(2) Not disqualified as long as the witness can
convey ideas by words/signs
Deaf-Mutes
Deaf-mutes are competent witnesses where
they have sufficient knowledge to understand
and appreciate the sanctity of an oath and
comprehend the facts as to which they wish to
speak, and are capable of communicating their
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prevent
domestic
disunion
and
unhappiness; and
(4) Where there is want of domestic
tranquillity, there is danger of punishing
one spouse through the hostile testimony
of the other.
Child Witness
The competency of a child witness is
determined by his capacity for observation,
recollection and communication. [People v.
Mendoza (G.R. No. 113791. February 22, 1996)]
Spouses as co-accused
The other cannot be called as an adverse party
witness under this Rule.
Scope of rule
The rule also includes utterance as to facts or
mere production of documents. It does not only
prevent disclosure of matters communicated in
nuptial confidence but is an absolute
prohibition against the spouses testifying to
any facts affecting the other however these
facts may have been acquired. [Herrera]
Duration
The privilege lasts only during the marriage and
terminates upon divorce or annulment or death.
[Herrera]
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Applicability
This rule is applied only to civil cases.
It is still applicable even if the property has
already been judicially adjudicated to the heirs
regardless whether the deceased died before or
after the suit.
C.4. BY REASON
COMMUNICATIONS
Rationale
To close lips of the plaintiff when death has
closed the lips of the defendant in order to
discourage perjury and protect the estate from
fictitious claims.
OF
PRIVILEGED
Privilege (defined)
A privilege is a rule of law that, to protect a
particular relationship or interest, either permits
a witness to refrain from giving testimony he
otherwise could be compelled to give, or
permits someone usually one of the parties, to
prevent the witness from revealing certain
information. [Herrera, p. 315]
Requisites
(1) There must be a valid marriage between
the husband and wife;
(2) There is a communication received in
confidence by one from the other; and
(3) The confidential communication was
received during the marriage.
(4) The spouse against whom such is being
offered has not given his consent to such
testimony.
A widow of a victim allegedly murdered may
testify as to her husbands dying declaration as
to how he died the since the same was not
intended to be confidential. [US v. Antipolo (37
Phil. 726, March 6, 1918)]
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Prohibition is limited
to
testimony
on
confidential
communications
between spouses.
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Identity of Client
General Rule: The attorney-client privilege may
not be invoked to refuse to divulge the identity
of the client.
Where applicable
(1) All forms of communication, advice or
treatment
(2) Information acquired by the physician from
his personal observations and examination
of the patient
Waiver
Express waiver may only be done by the
patient.
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Extent of rule
The privilege extends to communications which
have been addressed to physicians assistants
or agents. [Herrera, pg. 345]
Requisites
(1) Communication was made to the public
officer in official confidence; and
(2) Public interest would suffer by the
disclosure of such communication.
Autopsical information
If the information was not acquired by the
physician in confidence, he may be allowed to
testify thereto. But if the physician performing
the autopsy was also the deceaseds physician,
he cannot be permitted either directly or
indirectly to disclose facts that came to his
knowledge while treating the living patient.
[Herrera citing US Case Travelers Insurance Co. v.
Bergeron)]
Duration of privilege
The privilege continues until the death of the
patient. It may be waived by the personal
representative of the decedent. [Herrera, pg.
356]
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Applicability
The rule is applied to both civil and criminal
cases. [Herrera, pg. 364]
D. EXAMINATION OF A WITNESS
D.1. RIGHTS AND OBLIGATIONS OF A
WITNESS [SEC. 3, RULE 132]
TRIPS Agreement
Undisclosed information or trade secrets are
considered privileged communication.
i. Obligation of a witness
To answer questions, although his answer may
tend to establish a claim against him.
ii. Rights of a witness
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Leading questions
General Rule: Leading questions are not
allowed.
Matters covered
Those stated in the cross-examination, and
matters not dealt with, if allowed by the Court
Matters covered
Those stated in his re-direct examination, and
also on such other matters as may be allowed
by the court in its discretion.
v. Recalling the Witness [Rule 132, Sec. 9]
After both sides have concluded the
examination of a witness, either party with leave
of court may recall a witness.
Why conducted
(1) Particularly identified material points were
not covered in cross-examination
(2) Particularly described vital documents were
not presented to the witness
(3) Cross-examination was conducted in so
inept a manner as to result in a virtual
absence thereof [People v. Rivera (G.R. No.
98376 August 16, 1991)]
Misleading questions
Questions containing facts not in evidence.
[Herrera, pg. 207]
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Scope
Applies to all actions and proceedings, and
incidents requiring the reception of evidence
before the courts, quasi-judicial bodies, whose
rules of procedure are subject to disapproval of
the Supreme Court, insofar as their existing
rules of procedure contravene the provisions of
this Rule, and investigating officers and bodies
Contents (Section 3)
A judicial affidavit shall be prepared in the
language known to the witness and, if not in
English or Filipino accompanied by a translation
in English or Filipino, and shall contain the
following:
(1) The name, age, residence or business
address, and occupation of the witness;
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Offer
When made: Upon the termination of the
testimony of his last witness
How made: Party shall immediately make an
oral offer of evidence of his documentary or
object exhibits, piece by piece, in their
chronological order, stating the purpose or
purposes for which he offers the particular
exhibit.
Objection
When made: After each piece of exhibit is
offered,
How made: Party shall state the legal ground
for his objection, if any, to its admission.
The court shall immediately make its ruling
respecting that exhibit.
Note: It is sufficient that the exhibits are simply
cited by their markings during the offers, the
objections, and the rulings, dispensing with the
description of each exhibit.
Effect of Non-compliance [Section 10]
Party who fails to submit is deemed to have
waived the submission of the same. The court,
however, may allow, only once, late submission,
provided the delay is for a valid reason and the
defaulting party pays a fine.
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Effect
It may be given in evidence against the admitter.
[Sec. 26, Rule 130]
Rationale
No man would make any declaration against
himself unless it is true. [Republic v. Bautista
(G.R. No. 169801 September 11, 2007)]
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Privies Defined
Persons who are partakers or have an interest in
any action or thing, or any relation to another
[Riano citing Blacks Law Dictionary]
Confessions
A declaration of an accused acknowledging his
guilt of the offense charged, or of any offense
necessarily included therein [Sec. 33, Rule 130]
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EVIDENCE
REMEDIAL LAW
F. HEARSAY RULE
F.1. GENERAL RULE ON HEARSAY
A witness can testify only as to those facts
which he knows of his personal knowledge, or
those derived from his own perception. [Rule
130, Sec. 36]
The hearsay rule is not limited to oral testimony
or statements; it applies to written, as well as
oral statements. [Consunji v. CA (G.R. No.
137873. April 20, 2001)]
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EXCLUSION
OF
Dying declaration
Declaration against interest
Act or declaration about pedigree
Family reputation or tradition regarding
pedigree
(5) Common reputation
(6) Part of the res gestae
(7) Entries in the course of business
(8) Entries in official records
(9) Commercial lists and the like
(10) Learned treaties
(11) Testimony or deposition at a former trial
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i. Dying declaration
Also known as antemortem statement or
statement in articulo mortis [Sec. 37, Rule 130]
REMEDIAL LAW
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Pedigree includes
(1) Relationship;
(2) Family genealogy;
(3) Birth;
(4) Marriage;
(5) Death;
(6) Dates when these facts occurred;
(7) Places where these facts occurred;
(8) Names of relatives; and
(9) Facts of family history intimately connected
with pedigree. [Sec. 39, Rule 130]
Admissions [Estrada v.
Declaration against
Interest (Rule 130.38)
Declarant is neither a
party nor in privity
with a party;
Admissible only when
declarant
is
unavailable
as
a
witness;
Must have been made
ante litem motam;
Admissible
even
against 3rd persons;
and
Admissible as an
exception
to
the
hearsay rule
Made against ones
pecuniary or moral
interest
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v. Common Reputation
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Admissible Statements
(1) Spontaneous statements - Statements
made by a person while a startling
occurrence is taking place or immediately
prior or subsequent thereto, with respect to
the circumstances thereof:
(a) Principal act be a startling
occurrence
(b) Statement made before declarant
had opportunity to contrive
[Talidano v. Falcom Maritime
(2008)]
(c) Statement refer to occurrence in
question
and
attending
circumstances (Sec. 42, Rule 130) or
that the statements must concern
the occurrence in question and its
immediate attending circumstances
[Talidano v. Falcom Maritime
(2008)]
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x. Learned Treatises
Requisites for Admissibility
(1) Published treatise, periodical or pamphlet is
on a subject of history, law, science, or art;
and
(2) Court takes either:
(a) judicial notice of it, or
(b) witness expert in the subject
testifies that the writer of the
statement in the treatise, periodical
or pamphlet is recognized in his
profession or calling as expert in the
subject
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H. OPINION RULE
General Rule: The opinion of witness is not
admissible [Sec. 48, Rule 130]
Exceptions [NOTE: Please refer to succeeding
subsections for discussion]
(1) Expert witness [Rule 130, sec. 49]
(2) Ordinary witness [Rue 130, sec. 50]
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I. CHARACTER EVIDENCE
General Rule [Sec. 51, Rule 130]: Character
evidence is not admissible.
Exceptions
(1) Criminal cases [Sec. 51(a), Rule 130]
(2) Civil case [Sec. 51 (b), Rule 130]
(3) In the case provided for in Rule 132, Sec. 14.
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J. RULE ON EXAMINATION OF A
CHILD WITNESS (A.M. NO. 004-07-SC)
A statement made by a child describing any act
or attempted act of child abuse, not otherwise
admissible under the hearsay rule, maybe
admitted in evidence in any criminal or noncriminal proceeding subject to the following
rules:
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Protective orders
Video/audio tapes that are part of the court
record may be viewed only by parties, their
counsel, their expert witness and the guardian
ad litem. [Sec. 31(b)]
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A. OFFER OF EVIDENCE
Rule: Court shall consider no evidence which
has not been formally offered. (Rule 132, Sec.
34)
Purpose: The purpose for which the evidence is
offered must be specified.
As Distinguished from Identification of
Documentary Evidence [Interpacific Transit v.
Aviles (G.R. No. 86062 June 6, 1990)]
Identification of
Formal Offer of Exhibit
Documentary Evidence
Done in the course of Done only when the
the
trial
and party rests his/her
accompanied by the case
marking
of
the
evidence
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When to offer
At the time the witness is
called to testify
After the presentation of a
partys testimonial evidence
When to object
Immediately
after
offer is made
Question propounded As soon as the
in the course of oral grounds
become
examination
reasonably apparent
Offer done in writing
Within 3 days after
notice of the offer,
unless a different
period is allowed by
the court
The grounds for objection must be specified in
any case.
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Waiver of objection
When the party should have objected but did
not. The failure to point out a defect, irregularity
or wrong in the admission or exclusion of
evidence. [Riano]
Effect of waiver
A waiver of objection should not be construed
as an admission that the evidence is credible.
The scope of the waiver is only either on the
relevance or competence of the evidence.
[Riano]
D. REPETITION OF AN OBJECTION
[SEC. 37, RULE 132]
Motion to strike
(1) Court may sustain an objection and order
the answer given to be stricken off the
record if:
(a) witness answers the question before
the adverse party had the
opportunity to object, and
(b) such objection is found to be
meritorious.
(2) The court may also, upon motion, order the
striking out of answers, which are
(a) incompetent,
(b) irrelevant or
(c) otherwise improper.
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RULES OF PROCEDURE FOR
ENVIRONMENTAL CASES
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Procedure
Filing of verified Complaint accompanied by
(1) documents, affidavits, and/or objects to
prove cause of action and
(2) certification against forum shopping
Service of Summons
Preliminary Conference
Pre-trial Conference/s
Pre-trial Order
Continuous Trial
A.
PROHIBITION
AGAINST
TEMPORARY RESTRAINING ORDER
AND PRELIMINARY INJUNCTION
Except the Supreme Court, no court can issue a
TRO or writ of preliminary injunction against
lawful actions of government agencies that
enforce environmental laws or prevent
violations thereof. [Rule 2, Sec. 10]
Where the issuance of a TEPO is premised on
the violation of an environmental law or a
threatened damage or injury to the environment
by any person, even the government and its
agencies, the prohibition against the issuance of
a TRO or preliminary injunction is premised on
the presumption of regularity on the
government and its agencies in enforcing
environmental laws and protecting the
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B. TEMPORARY ENVIRONMENTAL
PROTECTION ORDER (TEPO)
B.1. GROUND FOR ISSUANCE
D.
PRE-TRIAL
CONSENT DECREE
CONFERENCE;
E. PROHIBITED
MOTIONS
PLEADINGS
AND
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H. PERMANENT ENVIRONMENTAL
PROTECTION ORDER; WRIT OF
CONTINUING MANDAMUS
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Illustrations:
(1) X files a complaint in an environmental case
against A [violator of environmental laws]
and the A retaliates by filing a complaint for
damages against X;
(2) X is a witness in a pending environmental
case against A and A retaliates by filing a
complaint for damages or libel against X; or
(3) X is an environmental advocate who rallies
for the protection of environmental rights
and a complaint for damages is filed
against him by A. [Annotation to the Rules of
Procedure for Environmental Cases, Supreme
Court Sub-Committee]
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A.4. PROCEDURE
Filing of a verified Return within a nonextendible period of ten [10] days after
service of the writ
Judgment
B. PROHIBITED
MOTIONS
REMEDIAL LAW
PLEADINGS
D. APPEAL
AND
C. DISCOVERY MEASURES
The following discovery measures are available
to all parties to the writ:
(1) Ocular Inspection
(2) Production or inspection of documents and
things [Rule 7, Sec.12]
The motion must show that a production order
is necessary to establish the magnitude of the
violation or the threat as to prejudice the life,
health or property of inhabitants in two or more
cities or provinces.
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Kalikasan
more
cities
provinces.
REMEDIAL LAW
Continuing Mandamus
or there is no other plain,
speedy and adequate
remedy in the ordinary
course of law.
Who May File
(1)
natural
and
juridical persons, (2)
entities authorized
by law, (3) POs,
NGOs,
PIG,
on
Person
personally
behalf of
aggrieved
by
the
persons whose right
unlawful act or omission
to a balanced and
healthful ecology
is
violated
or
threatened to be
violated
Respondent
May be public or
Government
or
its
private individual or
officers
entity
Docket Fees
Exempted
Exempted
Venue
1]
RTC
exercising
SC or CA
territorial jurisdiction, 2]
CA, 3] SC
Discovery Measures
Ocular
Inspection
and Production or None
Inspection Order
Damages
None
Allowed
E.3. PROCEDURE
File a verified Petition with prayer that
respondent be ordered to do an act or series
of acts until the judgment is fully satisfied,
and to pay damages + Certification Against
Forum Shopping
Summary Hearing
Judgment
Continuing Mandamus
Subject Matter
Available against an Directed
unlawful
against [a] the unlawful
act or omission of a neglect
in
the
public official or performance of an
employee, or private act specifically enjoined
individual or entity, by law in connection
involving
with the enforcement/
environmental
violation of an envtl rule
damage of such or [b] the unlawfully
magnitude as to exclusion of another
prejudice the life, from
the
use
or
health or property of enjoyment of such right
inhabitants in two or and in both instances,
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G.2. PLEA-BARGAINING
On the scheduled date of arraignment, the
court
shall
consider
plea-bargaining
arrangements.
Where the prosecution and offended party or
concerned government agency agree to the
plea offered by the accused, the court shall:
(1) Issue an order which contains the pleabargaining arrived at;
(2) Proceed to receive evidence on the civil
aspect of the case, if any; and
(3) Render and promulgate judgment of
conviction, including the civil liability for
damages. [Rule 15, Sec. 2]
F. BAIL
Written Undertaking by Accused
(1) To appear before the court that issued the
warrant of arrest for arraignment purposes
on the date scheduled, and if the accused
fails to appear without justification on the
date of arraignment, accused waives the
reading of the information and authorizes
the court to enter a plea of not guilty on
behalf of the accused and to set the case for
trial;
(2) To appear whenever required by the court
where the case is pending; and
H. PRE-TRIAL
After the arraignment, the court shall set the
pre-trial conference within thirty (30) days. It
may refer the case to the branch clerk of court, if
warranted, for a preliminary conference to be
set at least three days prior to the pre-trial.
[Rule 16, Sec. 1]
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I. SUBSIDIARY LIABILITIES
In case of conviction of the accused and
subsidiary liability is allowed by law, the court
may, by motion of the person entitled to recover
under judgment, enforce such subsidiary
liability against a person or corporation
subsidiary liable under Article 102 and Article
103 of the Revised Penal Code. [Rule 18, Sec. 1]
B. DOCUMENTARY EVIDENCE
B.1. PHOTOGRAPHIC,
SIMILAR
EVIDENCE
AUTHENTICATED
VIDEO
MUST
AND
BE
V. Evidence
A. PRECAUTIONARY PRINCIPLE
Precautionary principle states that when human
activities may lead to threats of serious and
irreversible damage to the environment that is
scientifically plausible but uncertain, actions
shall be taken to avoid or diminish that threat.
[Rule 1, Sec. 4(b)]
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