Twitter: 1226aponz Rem June 20 Sometimes people think that an initial encounter of cases is when a complaint is filed in court.

But you should recall this so called katarungang pambarangay (KB for brevity) Law. This was then initiated by the then pres. Marcos who ten issued pd 1542.Providing for this summary procedure now covered by the LGC adopting some of the salient provision of the decree as the stronghold of the so called Bgy Justice. So the first step that you will encounter in the handling of the civil case is the filing of the complaint with the proper bgy. for a a. conciliation or mediation or b. arbitration. Proceeding before the bgy are of 2 folds 1) the so called mediation 2) arbitration. These proceedings are conducted respectively by 2 different bodies also within the bgy. The so called lupon tagapamayapa for conciliation or mediation and for arbitration pangkat tagapagkasundo. The lupon is the basic body made up of 10 to 20 members headed by the bgy chairman, the pangkat is made up of lupon members who are to be chosen by the parties in controversy there are 3 to comply with______although the case brought before the bgy is initiated by the complaint, the complaint I refer to at this stage is not what you have studied in legal forms which is similar to an information or which is a pleading _____complaint refer to here is any grievance by the aggrieved party, the aggrieved party may not know how to write, so he will just bring it to the bgy verbally, the bgy secretary is required by the law to take down the grievance. The complainant may not even know how to write, his thumb mark will be affix to indicate that the grievance was made by him.these are special______grievance. The bgy chairman will bring the parties face to face for confrontation, this is conciliation, bgy chairman will explain the disadvantages of bringing thrie controversy to a court of law, what is suggested is to work out an amicable settlement. When the parties came to an agreement of what would be acceptable to each of them to bring about an avoidance of court litigation the so conciliation settlement sort of a written agreement commonly known in law as a compromise agreement or an amicable settlement will have to be reduced to writing and the parties would have to sign the same if the parties could not arrive at a mutual arrangement 1 of their controversy. So a compromise agreement or what is known in this procedure as conciliation settlement will not come about, there will be no wrting that will reflect what has been agreed upon because the party are____to each other. Even then to avoid the bringing of the case to a court of law the members of the lupon or the bgy chairman proposed that the parties submit to an arbitration to avoid the inconvenience that will be made and the other disadvantages of going to court scheduling the case every now and then for trial if the parties agree to submit to an arbitration a writing to that effect will be prepared for the parties to sign their willingness to submit their controversy to arbitration and from there it will now be the pangkat who will act on the case under arbitration If the arbitration was not repudiated it will result to a disposition of the controversy under the so-called award. If it is by a arbitration the disposition of the case is not called judgment, it is known as award. Although the parties under this system may have agreed to a conciliation settlement or amicable settlement or they may have agreed to an arbitration the pertinent provision of the LGC on this mechanism allows the parties to the controversy to repudiate what they have agreed to on any ground specified in the law itself which vitiates consent only on these 3 grounds may the repudiation be done, the grounds are 1. Fraud in obtaining the conformity of the other party 2.violence 3. Intimidation or any other grounds. The agreement arrived at the conciliation or the agreement to submit to an arbitration cannot be set aside or repudiated these are the only grounds allowed to repudiate what the parties may have agreed to because these 3 grounds affect the valid consent to the agreement or to the arbitration to which they have submitted. If there was no amicable settlement or an award to wc the parties are willing to accept a certification will have to be prepared by the bgy secretary to be signed by the bgy chairman attesting to the fact that a conciliation or mediation or arbitration was conducted but the parties to the controversy failed to reach an agreement and so they had been authorized already to submit their controversy to a court of law. This certification is required in bringing to court their controversy governed by the mechanism

Twitter: 1226aponz of the bgy justice without the certification the administrative matter enjoined by the sc on the series of 1493 admonishes coc and those prosec offices or any administrative or quasi judicial bodies to accept for filing without such certification of prior referral to the bgy. So normally one cannot go to court file the controversy before the court if after all the controversy is one where the mechanism of the bgy justice governs but no prior referral to the bgy was made if ever there will be a step to file it in court this administrative matter issued by the high court in 1993 would preclude the filing of that case without the certification from the bgy chairman or the bgy secretary that there had been effort to bring about the conciliation, mediation or arbitration but such procedure has failed. It is almost mandatory that the controversy be subject to this procedure referred to be ventilated in the level of the bgy. Now the 2nd point that you must take note of what are the requiremnts before a controversy may be governed by the so-called KpB, not all disputes or controversy are subject to this mechanism where conciliation, mediation, arbitration a the bgy level must first be conducted the requisites wc you find in chap 7 in lgc r.a 7160 1. The parties to the controversy. Should be natural person if there is a party wc is juridical person requirement of prior referral to the bgy does not govern 2. Although the parties involved are all natl persons if among them is a public officer and the controversy was in ____ of his performance as a public officer, it does not operate here 3. Where the contro. Involves real property that real prop. That prop must be situated in the same city or municipality where the parties to the controversy resides. So accdgly these rqstes that the parties to the controversy must reside in the same city or municipality not necessarily in the same bgy. Although the parties may not reside in the same city or mun. if however their respective bgy adjoin each other the parties may agree to commit their contro to this mechanism and stipulate to what bgy it is to be submitted. Under this exception you can really readily imagine that 2 the bgy of the parties although of diff cities or municipalities are of the boundary of each of the municipality so they adjoin. That means they are on the boundary that allows the parties to the controversy to agree to submit their controversy to this bgy justice mechanism and then they stipulate which bet. the 2 bgy to which they will submit conciliation of their controversy. So if these requisites are not strictly complied with referral of a to the bgy pursuant to lgc will not obtain and the matter of the controversy may be subject already of a complaint filed in a court of law. If these requisites do not concur the complaint may be filed directly in a court of law even without referral to the bgy. So you could glean from this that a controversy may dispensed with the required referral to the bgy for conciliation and mediation, in the following instances. 1.Where the cause of action is about to prescribe 2.When the rqstes for referral are not all complied with and the parties could not agree to refer their disputes to the bgy 3. when the controversy calls for availing of any of the provisional remedies under the rules of court. 4. when the controversy calls for a writ of habeas corpus as involving an unlawful deprivation of liberty or unlawful withholding of custody over a person contrary to what is so provided by law 5. In a criminal____if the matter involved an offender who is detained referral to the bgy is not reqd. since the bgy is not authorized to grant bail and that meant the supposed offender would have to remain in under confinement or detention while the matter is not yet resolved. Matter may be filed directly in a court of law. When these exceptions attend the controversy of the parties, the reqt may be dispensed with, otherwise this will be challenged through a MTD the case for failure to comply with a condition precedent reqd by the rules for the prosecution of the case. A s to the venue where the complaint should be filed the law states this 1) in the bgy where

Twitter: 1226aponz the parties to the dispute resides, this is so if the parties to the dispute reside in the same bgy. 2) in the bgy where the resps. Or majority of the resps. Resides 3) if the controversy arose in a workplace where the parties are employed, the matter must be brought in the bgy where such workplace is situated 4) if the contro arose in an inst. Where the parties to the dispute are enrolled, the complaint shall be filed in the bgy where such inst is situated. So if the quarrel arose in a school, it will not be the resident of the parties that will be_________but in the school where the parties are enrolled but bear in mind that venue in a civil action is waivable unlike in a criminal action. Also required for these mechanisms of bgy justice to be resorted are the ff. 1) the controversy should not arise from land lord tenant relationship or agrarian conflict bet them otherwise it would be a matter for agrarian dispute relation 2) the controversy should not be in respect of employer employee relationship governed by labor law otherwise the dispute should be thresh out before the natl. labor relations comm. This shall be without prejudice to such other controversy where a special law governing the same provides for a part. venue where the controversy should be thresh out. Now, the effect of these referrals of the controversy to the bgy. 1) Upon the filing of the complaint with the proper bgy. The running of the prescriptive period of a cause of action or of the crime involved shall be interrupted and suspended but not for more than 60 days from the date of filing of that complaint 2) the conciliation agreement or the arbitration award which the lupon or the pangkat may have approved shall have the force and effect of a judgment of a court of law. That means that the matter already subject of a conciliation agreement or award issued on arbitration cannot be relitigated again because of the final disposition of the case the rule of res adjudicata governs. The conciliation agreement or the arbitration award shall become final and exec. After the lapse of 10 days from the date thereof unless they had been repudiated before it had become final and executory. Another conseq. The lupon may bring about the execution of such conciliation or amicable settlement or the award rendered in an arbitration within a period of 6 mos from the date thereof, thereafter the same may only 3 be executed through a petition filed with the inferior court or court of first level exercising jurisdiction over the place where the bgy is situated. So the validity of the agreement arrived at before the bgy may be implemented and subject of execution against the obligor within 6 mos. After the date the same was signed by the parties or if it was an award rendered after arbitration the same may be enforced through exeution by the lupon not by the court after 6 mos court already, so even if the lupon has this power, this body renders a resolution which has the force and effect of judgment of a court of law since the matter cannot be relitigated again before a court of law. The settlement signed by the parties before the lupon or the award that the pangkat have rendered if the parties could not agree on the mediation or conciliation and they have agreed to submit it to arbitration then an award will be _______ and if that would not repudiated it will become final after 10 days, If repudiated it will be as If nothing have had, the bgy secretary or chairman may issue a certification that the parties failed to reach an amicable settlement or agreement during the confrontation before the bgy, you note that in sec 412 of chap 7 of the lgc ra 7160 as amended the amended that no complaint, acton, proceeding, pet shall be filed in court or any admin bodies w/o a confrontation in the proper bgy. So this is the mandate of the law which tells you prior referral to the bgy when reqd by this law cannot be avoided the adverse party may bring about dismissal of the case for failure to comply with this mandate of the law. But this is not jurisdictional it is not, its not a matter that apply to all laws where however under the law governing the controversy the referral to the bgy is reqd a failure to comply would be a breach of the due process clause that if this question would be raised the court cannot simply ignore this the proceeding will null and void ab initio. Not jurisdictional in the sense that if the parties went through the proceedings although it requires prior conciliation or possibly administration or arbitration before the bgy the parties who took part cannot anymore question the non- referral to the bgy they are estopped already. But the moment it is questioned, the court cannot ignore the challenge that it did not comply with what is provided in the lgc in this regard it is mandatory but this is not jurisdictional.

Twitter: 1226aponz 2nd step if the mechanism of bgy justice does not govern or it governs but the parties failed to reach an agreement so much so that the bgy already certified the controversy that it be referred to a court of law. The next step come here the referral to a court of law will begin the prosecution of the civil action before the court depends if the bgy justice applies. The 2nd step is the commencement of the civil action in the court of law. Highlight the word action. Under this step, the preparation of the complaint of the aggrieved party to be filed in court, underscore complaint to emphasize, commonly what is required is the complaint not a petition. A pet is filed only in special proceeding not in an action. Action are adversarial theres always a depending party. At this juncture you must know that there are actions that are commenced not by complaint but by petition. They are referred to as Special Civil Actions. The ff are commence by pet. 1 Declaratory relief and similar remedies under rule 63 of toc 2. Pet for review of judgment resolution and final order of comelec and coa under rule 64 3. Certiorari 4. Prohibition 5. Mandamus 6. Quo Warranto if initiated by the govt, if initiated by a private citizen, it would be by complaint. 7. Contempt, the contempt is an action not a pet. Its a special civil action under rule71 As bet an action and specpro an action is always adversarial, a proceeding is not, only an application asking the court to recognize or approve judicially the existence of a fact or of the status or of a right. Declaration of absence, it is an application to the court to accept the fact that the subject of the pet. is judicially absent. So the rights and obligation attending an absentee would already operate. Of a status a pet. for hospitalization of insane persons, pet for settlement of the estate of the deceased person. Under these steps there are 2 stages that a lawyer encounters 1st stage preparation of the complaintJurisdiction of the court where a case is to be filed, 4 now relative to this I want you to look into, the diff courts in the phils and the jurisdiction that each of them wields, under the outline you have the hierarchy of courts. 1) courts of first level 2) collegiate trial courts 3) C.A 4) S.C. and there are some court on the collateral level which may be t.c. at the same time appellate court like the SB. They have appeal juris. RTC trial court they have appellate juris. over judgements of the courts of the 1st level you have to understand the way they are arranged. in the exercise of juris it may be on civil or crim action. So what are those civil actions which are under the jurisdiction of the t.c. on the first level or t.c. on the collegiate level, bet. the so called inferior courts (term inferior not used anymore in our rules of court unpleasant conotation) while the juris. Of the court has been expanded and what used to be within the jurisdiction of the collegiate trial court has been brought to the level of this court the word inferior has been removed, they are now referred to as politely court first level. In a civil action, courts of the first level have limited jurisdiction, which means to say what are those matters which are expressly vested within their juris are only those matters which they can validly act upon, so those although it may be analogous or similar to what has been vested in them if not expressly vested in them they have no juris over said subject matter and they cannot act on them competently, other hand Collegiate t.c. which are now rtc, on this level in crim cases you have SB but the SB is also an appellate court because there are appeals on certain crim cases which can only be taken to the SB, when we say that this collegiate t.c. have gen juris. their juris to act on a case is not limited to those cases which are expressly mentioned in the law conferring juris, any other matter which is not conferred within the juris of any other court of a diff level shall be within the competence of the collegiate t.c., so it is the reverse whereas the inferior courts can only act on those matters which are expressly vested in them . Coll t.c. can act on a case

Twitter: 1226aponz as long as it is not taken away from them. As long as a case is not vested by law within the jurisdiction on other court, you cannot file it in any assignment of jurisdiction of another court then RTC, because these are courts of gen jurisdiction. THIS WAS NOT StATED IN THE RULES. Jurisdiction if not complied with nullifies the proceedings, we say it is jurisdictional if the nonobservance of what is requiredd would render the whole proceedings already conducted as null and void. On this exercise of juris. The SAME may either be original or appellate juris. when you say orig the controversy must be brought initially at that level, you cannot bring it at the higher level, you must have learned about this actions for forcible entry, actions for unlawful detainer because of the nature of the issue involved here juris. is with the courts of first leve,l only here, not higher courts, you cannot file this in any higher court (,.metro tc., mun courts in chartered cities, mun t.c. in mun, mun circuit trial courts and those circuited mun courts) if however dispossession lasted for more than a year, no longer unlawful detainer or forcible enry, you have learned about accion interdictal, accion publiciana, accion reinvindicatoria, you have learned this in civil law and this is procedural, the court if it is accion interdictal this refers to the forcible entry, unlawful detainer cases, you cannot file this in any court except a court of the first level because the jurisdiction of these courts over this cases is original that means it will start there, you cannot start it anywhere. It is a trial juris, if the controversy may be filed with courts of diff levels either inferior court or collegiate t.c. and they may try it validly, you say the jurisdiction is concurrent, a court in the exercise in the exercise of concurrent juris, the later rulings of the s.c. called attention to the so-called hierarchy of courts which the lawyers must respect although the lawmakers may have vested juris over certain litigation with the lower court and concurrently with the higher court the litigant cannot go straight to the higher court immediately without any compelling reason to avoid initiating the action in the lower court even though the law compels juris ON the Lower Court or a Higher Court over the same case, it is not for the litigant immediately to go the higher court unless there is reason for doing so ex. Pet of 5 habeas corpus, this is within the juris. of the court of first level, also within the juris of the courts of coll level, if the writ will be enforced in a place beyond the juris of the local inferior courts it would be idle to require the parties to file there since the writ that may be issued will only be valid within its territorial jurisdiction, whereas the same will be enforce in another judicial _____ it must be within a court of gen. juris, if it would be enforced in another judicial region then it may be with the c.a. because you cannot enforce it in another judicial region if you inst this in a court gen. juris that have no juris over that region. It doesnt mean that under the law this pet will be filed in this court that you can just go anywhere. This is now crystalized in the ruling if the s.c., whereas the writ can also be of the same force and effect even if filed with the rtc the parties cannot arbitrarily choose the court where they will file the action. That would destroy the stability of our admin of justice. There is such a thing as hierarchy of courts, you must observed this unless there really is a compelling reasons. All of these are in respect of that element of juris. Juris. may be over the sublect matter of the action, it may be 1. over the person of the parties to the action, 2. it may be over the prop. Or matter involved in the action which we refer to as juris over the res, 3. or juris may be over the issue raised in the action. A court is not free to resolve a matter not which is not brought before its jurisdiction, because that would only confuse the parties litigating, so if the issues is not raised in the pleadings the court should not disposed of that matter in the ___________because the court has no juris over the issue, so if the action involve merely a conflict of possession but the court made a disposition of the ownership, its an exercise without jurisdiction over that issue. So although it was made by the rtc and rtc has juris over questions of ownership and possession but in the part. Case where the controversy is as to possession a rtc touching upon question of ownership has no juris there. Now that is not juris over the subject matter, that is jurisdiction over the issue. The court can only pass upon an issue which was raised in

Twitter: 1226aponz the pleadings. That is through the pleadings. Now relative to this you have studied the rue on amendments. If during the trial the litigant was able to bring out an issue which was not pleaded, the court cannot validly render judgment on that issue which was not pleaded, so there must be an amendment to the pleadings to bring to that pleadings the issue, you call this amendment to conform to the evidence. Jurisdiction refers to the competence to the court to dispose of the controversy before it. If the court renders judgment on somebody who is abroad neither been served with summons it does not apply to juris over the person of the parties. Juris. Refers to different subjects not just to the subject matter of the ____issue, it refers to the competence of the court to make a binding judgment or order on a party who is not involved in the litigation, or a party who is involved in the litigation. So you say if the def. had not been served with summons the court have not acquired juris over the person of the defendant. The court cannot render judgment that will be enforceable against the defendant, it is by the summons that the court acquire jurisdiction over the person of the defendant unless the def.submits to the juris to the court even without summons. The next matter to be considered in the preparation of the complaint is venue. O tnhis matter you should know 1)what is the effect of the agreement bet parties specifying the venue where the action bet them maybe filed should a contro. Arised relative to this you must consider of const. limitation against the denial of free access to courts. Supposing the parties in the transaction made a stipulation any disagreement that may arise out of this trans. Shall be brought in the proper court in Zambales where the parties reside, but there was a volcano, there the court got buried under the Lahar, the def. violated the term of the agreement, may the plaintiff file the action in another place or should the plaintiff wait until the action could be filed in that place. Bet venue and juris. You should know what are the the contemplations of venue what are the contemplations of juris. 1. Venue may be subject to agreement of the parties Juris cannot be the subject of the agreement. 6 2. Juris affect the relation of the parties to the court, venue affects principally the relation of the parties to each other and to the court. 3. Venue is defined for the convenience of the parties, juris is defined for the orderly admin of justice. One impt. Matter about juris. that when the subject of the action or the litigation is incapable of pecuniary estimation, jurisdiction over this is with the rtc you cannot file this with the inferior courts but you must have learned that if it is incapable of pecuniary estimation does not mean that there is no value, does not mean that there is no pecuniary amount stated there, an action for a specific perf. Of a bicycle worth 15 k which was not delivered where should we file, you look into this part. item of juris. when we say that the subject of litigation isbeyond or w/o pecuniary estimation and this cannot be filed with the inferior courts because these courts have limited jurisdiction. That action is at least with the juris of a collegiate t.c. rtc or on that level a family court or comml court those court of the same level as collegiate trial court.

June 20 Part 2 The parties who have to be impleaded relative to this you should know the following 1) Real party in interest this is commonly used in procedural law so you must be acquainted on this 2) indispensable parties 3)necessary parties 4)representative parties . Then the instances where a spouse may be sued without joining the other spouse now the regime of property relations between is absolute and the moment you file a case gainst a married person you have to join the other but this is not always required so you should be aware of those instances where the suit aginst one would already suffice and the requisite for joinder of parties whether ceratin parties in an action can be joined or not so those are the matters you will look into or a lawyer should look into in the preparation of the complaint who are the parties. Under the present rules in the case of a necessary party, the pleader is required to state who they are and why they are not impleaded. Unlike before where the pleader does not have to state who are the parties who should also be impleaded, under

Twitter: 1226aponz the revised rules now the pleader have to state those parties who are necessary but who have not been joined. If the court would require the pleader to join those parties to the action and he would not want to join them inspite of the period given to him the new rules now_____his right to recover from that necessary party. Y ou must have notice that before the revision of the current rules the necessary parties are also referred to as proper parties but the use of the term proper parties has been discontinued under the new rules because it is ambiguous as long as a party is a real party in interest it is a proper party. The word proper party does not mean anything it does not really connote the meaning of necessary party. Necessary parties are those who must be impleaded in the complaint so as to achieve a complete determination of the controversy. Cause of action the next factor to consider how this differs from right of action you must have come across before the difference between right of action vs cause of action when may joinder of causes of action cannot be done. The gen rule, joinder of causes of action is encouraged because this avoids multiplicity of suits. Our rules of procedure demands avoidance of mutilplcity od suits one of these ways is allowing the joinder of the different causes of action. Even though they may be inconsistent with one another but there are limitations when joinder should not be done, now you should know those limitations. Next is the relief prayed for, the cause of action must alleged the basis for the relief the plaintiff will pray for. He cannot pray for a relief which the law does not allow or pray for a relief which the cause of action does not justify. On the other hand the court cannot grant the plaintiff a relief which he did not prayed for the court so to speak cannot be more popish than the pope, so if a litigant does not pray for the relief the court cannot grant that. That is why you must have learned in every pleading the last allegation there prays for the court such other and further relief which the court may consider to be just and equitable on the premises. That is a general prayer to remedy the possibility that some of the specific relief may be overlooked by the pleader so much so that he cannot 7 recover the same or he may not be allowed to prove the existence of the claim. And the signature on the complaint this may be done by the counsel or the plaintiff himself. Sec 3 of rule 7 gives you the legal consequence of the signature of the lawyer on the pleading and the signature of the litigant on his pleading. And you note under sec 3 that when a lawyer who signs the pleading, by such signature he certifies 3 things 1) that he had read the allegations in the pleading and the same are true and correct 2) that there is a good ground for a accepting it and 3) that it is not interpose for delay. These matters had been asked already in the bar exams in Remedial Law. What are the implications of the signature of the pleading he filed in court? Sec3 Rule7 specifically mentions what they are. For a lawyer its not as if he is signing an autograph, every time he signs a pleading, his signature certifies something, if it turns out to be false, the lawyer may be subject to administrative discipline because the lawyer who handles a case thereby assumes the position of an officer of the court, no court can function without the lawyers who handles the case before the court, that is why the moment they handle a case they are regarded as officers of the court already subject to discipline by the court. On the other hand if it was the client or the litigant himself who signs the pleading it has the same implication as a lawyers signature do not apply to the signature because he is not an officer of the court instead if there is anything false in what he had alleged and attested to by his signature. His_________ complaint may be stricken out of the record for if the matter that is false or obnoxious is only in certain allegations which may be stricken out without affecting the whole complaint may be directed as stricken out and this is also without prejudice to a disciplinary action that may be taken against the litigant if it would be found that there is deliberate expression or evasion of fidelity to reveal the truth to the court . Or when the signature avoids the required fidelity of the litigant to the court making known what really it is for the court not to be misled q court may discipline the litigant himself for trying to mislead the court. Verification is required there are some pleadings which the rules of court require to be

Twitter: 1226aponz verified how verification should be done you should know the allegation of verification_______the verification can only be done on 2 promises. Before a verification based on information or based on belief is still acceptable now no more because many can no longer retract it , say something where as the other _____say true. So now verification can only be done on the basis of personal knowledge or based on authentic records these are the only bases of a valid verification. Verification must be known by you as a legal form. Every verification carries with it an oath, the oath is not the verification, the oath is the jurat to attest to the truth of what is being verified, the verification may be done by the counsel not necessarily by the litigant. The verification is not jurisdictional so although the pleading called for is to require to be verified but the same was filed without verification the court is not thereby authorized to dismiss the pleading, the court may only direct the amendment of the pleading to include the verification thereof. It is only when the time, given to the pleader to amend his complaint and put it under verification had already lapsed and expired the pleader has not make the necessary verification, implying that he does not want to obey what the court is directing him to do and on this ground the court may dismiss the complaint otherwise the failure of the verification would not authorize the dismissal of the case because this is not jurisdictional, it is only required to give added assurance that what are alleged are true. Now after the required verification next to come is the required certification of non-forum shopping. This is required in every complaint because the certification is required in every initiatory pleading. A certificate of no forum shopping generally is not required in an answer by the defendant simply because an answer is not an initiatory pleading, the answer is sort of a response to the complaint filed by the plaintiff however where the defendant alleges in his answer a permissive counter claim, by now you should know that a permissive counter claim is in the nature of a distinct or separate claim by the defendant against the plaintiff. Not arising or connected with the transaction or occurrence subject to plaintiffs cause 8 of action. So it is in the nature of an action or claim, while the defendant is the plaintiff or the claimant that is why if the answer of the defendant pleads a permissive counter claim which in substance and in legal standing is independent of the plaintiffs cause of action, a certificate of non-forum shopping is required because of the permissive counter claim. Now on this point you should take note of this, the answer is required to contain a certificate of non-forum shopping because of the permissive counter claim without that there is no need to put the answer under a certification of non-forum shopping. So if the answer alleges a permissive counter claim but if the defendant fails to place that answer under a certificate of non-forum shopping, that failure should only affect the permissive counter claim not the entire answer because what requires certification is the permissive counter claim. In a case where this was happening SC made a statement that the entire answer must be dismissed which is not really correct because the moment the whole answer is dismissed the defendant will be in default because that meant no answer is filed whereas it is only the permissive counter claim that will not be recognized by the court because it is the only claim in the answer that is initiatory the other allegations in the answer are matters of defense it is not a claim. That statement of the sc proceeds from the wordings of the rules of court on the effect of absence of the certificate of non-forum shopping where it is required the rules on this in providing that it cannot be corrected by amendment stated that the case shall be dismissed and so the whole case for the defendant is dismissed. Although that pronouncement does not seemed to be correct because the rule requires that the certification only in initiatory pleadings, it is a response, it is only the permissive counter claim that is foreign to the answer. The judicial ruling on this invoved the ust hospital raising this by a patient who filed damages against the hospital by way of counter claim not having any relation to the services rendered by the hospital for the recovery of the amount he is seeking to collect and the hospital raised this point that since this is a claim for damages that has nothing to do with the claim of the plaintiff the failure of the defendant who is the claimant from placing his

Twitter: 1226aponz counter claim which is a permissive counter claim under a certificate of non forum shopping calls for a dismissal of the case and the sc said that under the rules the case shall be dismissed. Which is a sweeping consequence just because of the failure to state that there is no forum shopping. I subscribed to the thinking that the ruling should be questioned because considering the defendant be deprived of the benefit of the answer whereas the summons require him to answer the complaint and he is answering that. What is not included in the answer that is why the court ______permissive is the counter claim it should be that which should be dismissed not the entire pleading which alleges defenses. Defenses to the plaintiffs claim. So be informed that this is how the sc in a pronouncement only not really an issue raised claim that the case there should be dismissed because that is the wording of the rules. But the wording of the rules were made by people who were not really practitioners, it is simply an opinion but common sense will tell you that it is not________with the allegations in the answer which is a response to what the plaintiff may alleged and that is in respect only of permissive counter claim. Now on this certification of non-forum shopping the case itself may be dismissed without prejudiced or with prejudiced by now you must know when we say that the dismissal is with prejudice it means the pleader cannot refile his complaint again but if the dismissal is without prejudice the pleader can still refile his complaint only suffer the damage of paying again the docket fee which he could have avoided if when an amendment is allowed. But because the rule say that it cannot be cured by amendment and the rule speaks of dismissal without prejudice then that means he would have to refile in refilling he would have to pay again the docket fee. Now generally you will see from the rules that the dismissal is without prejudice but the same rule makes a qualification unless the order of dismissal states otherwise, now when will that be proper ? so you give attention to that because when the dismissal is with prejudice, the refilling of the case will not be again entertained by the court. If the dismissal is with prejudice it will be tantamount to an adjudication on the merits and therefore the rules against res adjudicata will already bar the refilling of the complaint in court. Now also under the same rules the court may find the litigant and the lawyer for indirect contempt or even for a direct contempt. Now note when it is only for indirect contempt and when it should be for direct contempt. The 2 are different so you must know when one is proper when the other is proper. But the rules on this _______that failure to comply with the required certificate of non-forum shopping would bring about indirect contempt but here is also in the same provision that if it is deliberate it will be a direct contempt. These are the matters relative to the cert of non forum shopping. On this this__________ the statement of cause of action you have to know the difference between right of action and a cause of action. A right of action is conferred by law all you have to do is to consult the and what the law says this on the other hand as to the cause of action the ground or the motion to dismiss is that the complaint fails to state a cause of action it does not say that the complaint or the plaintiff has no cause of action instead it says it fails to state a cause of action. Telling you that the cause of action is based on the allegations in the complaint. The litigant may really have a cause of action against the defendant but if the allegations in his complaint fails to comply to what the rules require to bring about a cause of action then that complaint is subject to a mtd on the ground that it fails to state a cause of action. You have studied these special ____________ actions for forcible entry and actions for unlawful detainer and you must have learned already that in an action for forcible entry and allegations in the complaint of a demand by the plaintiff upon the defendant to vacate the premises is not necessary. But if it was an action for unlawful entry a demand to vacate is necessary unless the action for unlawful detainer is based on the ground that the lease contract and the occupancy on the premises has already expired. When it is so alleged that the right of the defendant has already expired then there is no need for a demand to vacate because he knew that his right to continue occupying the premises has already lapsed. So even without demand there is a breach already. But on the other hand if the demand to vacate the premises is based 9

Twitter: 1226aponz on the delayed payment of the rent you understand in civil law, even though an obligation is already due and the same has not been paid the obligor is not in default unless there is a demand and he did not comply with the demand. You have that provision in civil law because he is not in default unless there is a demand made and he did not pay it on the date stated in the demand. You have to correlate these principles to understand because the definition of a cause of action is the breach of the defendant of his correlative obligation to respect the plaintiffs right. So if under the law she had no breach that means there is no cause of action in an action for unlawful detainer the defendant acquires occupancy of the premises in a lawful manner, so his occupancy continues to be lawful unless he is already directed by the plaintiff to vacate and he refuses to vacate he becomes what we call a deforciant tenant but if he has not received any demand and he continues occupying in civil law there is even possibility that his stay in the premises will be deemed impliedly renewed. On the other hand in an action for forcible entry from the very beginning the defendant gained occupancy of the premises illegally, so from the beginning he possesses the premises unlawfully that is why there is no need for a demand, demand is necessary in an unlawful detainer except when the right of the defendant to continue occupying had already ended because of the termination or expiration of the contract of lease. Otherwise his lawful possession continues that is why law is mandated there for a certain period of time there is an implied renewal of the contract of occupancy. Because it does not raise there become unlawful since the defendant started renting the place lawfully. So if you understand these mechanics procedural law is in accord with substantive law but if you have not considered this you may not understand it why some demand to vacate is necessary and others not necessary. But if you understand the predicate of this conclusion you will readily know why. These are anchored on substantive law. This is procedure but the real basis is substantive law that why you should now the reason. So if it was an action for unlawful detainer the allegation of the cause of action does not state 10 that the plaintiff had already made a demand upon the defendant to vacate the premises the complaint still state a cause of action if there was a statement that a demand to vacate was made but if there is no statement that demand to vacate was made that the defendant defied the requirement to vacate there is yet no cause of action. So we say that the complaint fails to state a cause of action, it is subject to a mtd on that ground. Now relative to this ground you must have also learned the mtd that in determining whether the complaint states a cause of action or not the court is not allowed to look into other evidence aliunde the only basis is the complaint itself so if there was no allegation that the plaintiff made a demand to vacate dismissed. Because as far as cause of action is concerned whether there is cause of action stated in the plaintiffs complaint or not can only be determined from what the complaint alleges. If there is no allegation there that demand was made then there is no argument there is no cause of action. The plaintiffs complaint fails to state a cause of action because the plaintiff failed to state that a demand to vacate had already been made yet the defendant defied the demand. A problem was given in the bar where the action of the mtd filed was predicated on the ground that plaintiffs complaint fails to state a cause of action at the hearing the defendant gave evidence to show that the plaintiff in fact made a demand and the letters were brought before the court. Would you deny or grant the mtd? On the principle that on resolving these ground the court cannot look into other evidences except in the allegation in the complaint, then the court acted erroneously in receiving evidence that the plaintiff made a demand, the ground for dismissal say fails to state a cause of action. So when you say a cause of action that means you find this only on the face of the complaint so thats the only issue there if there is nothing appearing on the face of the complaint then dismissed. But since the error can be corrected by mere amendment under rule 16 on mtd you have learned that if the ground for a mtd may be corrected by mere amendment the court should not dismiss, the court should only order the pleader to amend because that would bring about multiplicity of suits if

Twitter: 1226aponz the court dismiss the case and the plaintiff would refile the case simply adding there that there was demand to vacate made, so one principle yields to another. If there is amendment there can be no refilling. The multiplicity of suits as against public policy will not be invoked. Sou you have more or less and idea of what these are at this stage we are only concerned of the filing of the complaint and these are the ones involved. In the different rules under the rules of court you can segregate this when locating the particular provision there. The moment you take the other provision there you are lost. Some matters are not yet relevant at this stage.(big speech about how confusing the rules im sticking to the real lecture here ) The 2nd stage is with the filing of the complaint in court , these matters are covered by rule 13, on the rules of court . so far away already this should be next to the filing of the complaint. Under sec 1 of rule 13, all other pleadings subsequent to the complaint must be served only the complaint is not served by the pleader who files it in court, the reason is obvious the complaint is served together with the summons it is the sheriff who will serve this not the plaintiff all that the plaintiff will do is file the complaint, in the filing of the complaint the same maybe done personally by going to the office of the clerk of court entering the complaint there. He will file there as many copy of the complaints as there are defendants plus 2 for the court and the record. The party should also have a copy of the complaint. If there 4 defs there should 7 copies all in all of the complaints = 4 +2+1=7 copies. The complaint may be filed through registered mail. The rules do not provide for the filing of the case by ordinary mail because there is no way of knowing when it is presented to the postal service unlike a registered mail there is a registered receipt and the rule is the date of mailing is the date of filing but these should not be understood by you to be true only if the correct amount of docket fee is included in the mail at the time it was presented for postal delivery. The mere mailing without the docket fee for the filing of the complaint being included there is no filing. Filing is complete only if the correct amount of the docket fee is tendered together with the complaint. You must have read here the case of 11 Manchester and sun assurance ltd these 2 cases tells you without the correct amount of docket fee had been paid the complaint is never filed. Although the rule does not provide for the filing of the complaint by ordinary mail, it does not mean that if the complaint was filed by ordinary mail the filing is not valid even filing the complaint by ordinary mail will still be valid as long as the clerk of court will receive that complaint and the docket fee corresponding to that complaint, if the clerk of court received the docket fee later than he received the complaint because he received the complaint but the money is not there so he called the lawyer this will not be considered filed you have not enclosed here the amount of the docket fee, it is only when the correct amount of the docket fee was paid when that complaint will be considered filed. So the rules that once the complaint is filed by registered mail the date of mail will be the date of filing you take this to mean that the docket fee for the filing of that complaint must also be mailed if it was not mailed, then the rule that the date of mailing is the date of filing does not stand. The complaint will only be considered filed when the correct amount of docket fee was fully paid. So if the mailing was done by registered mail the amount of the supposed docket fee was also mailed but the amount mailed was not correct, the amount mailed is less than what is required under the rules of legal fees its not a case even though there is an amount mailed the date of mailing is not the date of filing because the amount mailed is insufficient So if the coc called the lawyer and say that the docket fee you have mailed is lacking you have to complete, so if it was still 5 days after coc received the complaint before the amount is paid in full, the deficiency , it is only when the deficiency is paid to complete the correct amount of the docket fee will that complaint be considered filed and in by that date the complaint has already prescribed and even if the correct amount of the docket fee that complaint is reduced to a mere piece of paper because the cause of action has already prescribed. It is only when the deficiency was paid at the time when the cause of action has not yet prescribed will the payment of the deficiency be proper, does not follow that if the deficiency was paid even though the cause of action

Twitter: 1226aponz has already prescribed, that that case will still be validly filed. It is only when the correct amount of the docket fee is fully paid that it is considered filed. That there are some rules or principles you may encounter in the commentaries before which a later jurisprudence has been nullified or qualified????@not sure and you must take this in the light of the clarification what you may have learned before may no longer be correct. In the next step after filing was done, correct docket fee has been paid, the coc will prepare the summons the litigant then will have to kept copies of the complaint and the summons attach to the copies to be served to the defendant and would _____to the sheriffs office then we will again have to pay the sheriffs fees if he does not pay that, if he does not pay that the case there will not move (story of a young lawyer in his office) it turned out he left the complaint in the office of the coc and that will not move, you file it there pay the amount, tell the court to prepare the summons, have it attach but you have to come back and get that, bring that to the sheriffs office for it is not the coc who will serve that. It is the sheriff. You have to go to the sheriffs office and pay them the money that they need. You will have to pay kilometrage fee. The more the defs. The more the expenses, if they live in diff places. Here you must have notice under rule 14 on summons that substituted service of summons may be made at the residential address of the defendant or at the office or business address of the defendant that if the substituted service of summons is to be made in the res. Address of the defendant to be valid the same must be tendered to a person of sufficient age and discretion who is residing there and the brother of the defendant who was visiting the defendant who happened to be out at that time the sheriff came,asked about the defendant the brother says he is also waiting for him, he had gone to market, the sheriff then requested the brother since he still have to serve so many summons, can you please received this in his behalf and he said no problem.he received the summons, is that service of summons valid? Bear in mind that if summons was not validly made, the court cannot proceed that is part of due process, it is by the summons that the defendant can be bound by the judgement that the 12 court will render, that is why it is said that the summons id pivotal in enforcing the judgement against the defendant. If the defendant has not been served with summons in means that the court have not acquired jurisdiction over his person, the court then cannot render judgment that will prejudice the defendant , because the defendant have not been given, the benefit of due process. The rule says that a person of sufficient age and discretion residing in that house of the defendant, this is when substituted service is to be made at resident of the defendant at the time when the defendant cannot be served in person with the summons there, substituted service can be made or if summons was to be served at the place of business or office of the defendant, the rule requires that the same must be served to a person of sufficient age and discretion who is in charge of that office or place of business. It is not a residence so it cannot be said that he is residing there. So if the summons of the complaint was there at the place where the defendant holds office. Sheriff went there only the security guard was there, the office is still close it will open at 10 o clock, so the sheriff tendered the summons and the complaint to the security guard, security guard signed for, will that be binding upon the defendant ? these point I tell you is pivotal because this will determine whether the service of the summons would bind the defendant or not. If the defendant would not be bound that means that due process of law had not been fulfilled, so as a consequence veryhitng done is null and void. Because it is an constitutional infirmity no person shall be deprived of his life property without due process of law. Judgment cannot be valid in the civil action because that is a violation of constitutional protection. You must know all of these as a future lawyer. Substituted service may be done at the resident of the defendant or at his place of business of the defendant, why 2? Does that mean that the sheriff will go to the residence and if he is not there he will then go to the office? Precisely you have studied preparation of the complaint and in the jurisdictional allegation in the complaint, the plaintiff state there the address, where the defendant may be served with summons, you will recall that this is required in the complaint , the jurisdictional

Twitter: 1226aponz allegation of the complaint state the _______of the plaintiff , then the personality of the defendant stating there the address where the defendant may be served with summon, coc then prepares the summons according to that address, so if the address given is the address of the defendant, the substituted service will be at the residence of the defendant but if the address stated by the plaintiff In the complaint is the place of business or office of the defendant then the address that will be stated there where summons will be served would be the place of business or office of the defendant and if it turned that out at the time that the defendant was not there then substituted service will be to the person of sufficient age and discretion in charge of his office or place or business not anybody should it be served at anybody null and void. Judgment will not be binding on him unless it appears subsequently that he actually received the summons. Read the rules before the commentaries. If on the other hand the defendant files a motion on the ground that summons was not properly served, filing of that motion will not imply that he is submitting to the jurisdiction of the courts, precisely he is questioning the jurisdiction of the court through improper service of summons it is only that move on the part of the defendant impliedly accepting the authority of the court to act on the case against him and he submitted to that jurisdiction that will amount to recognition that the court can proceed against him that will be tantamount to a service of summons. But if he was filing a motion to dismiss on the ground that summons was not properly served that will not amount to an acceptance of the authority of the court to proceed with the case against him although there are these 3 ways of serving summons upon the defendant. You must have learned service in person to the defendant is to be preferred, the other modes of services will only be valid if non service in person to the defendant is justifiable, so even if summons was served by substituted service according to the rules or by publication if there is no sufficient excuse for not serving the defendant in person, service of summons will not be binding on the defendant unless the defendant out of that service will comply with the summons. Summons direct him to file his answer within 15 days, so if he files his answer he cannot challenge anymore the defects or irregularities in the service of the summons. In a case where the sheriff came to the house of the defendant to serve summons nobody was there except an elderly woman who was the caretaker of the house of the defendant, the defendant who was a married man was revealed by the caretaker to be somewhere in Bicol, the wife as disclosed by the same caretaker was somewhere in the U.S. The sheriff who simply had served the summons to the caretaker who signed and did not even require the caretaker to write her name in a legible way that could be read in the _____ of the signature and there is no statement as to what she is in the house, __________stating there that the defendant husband and the defendant wife is somewhere abroad. The defendant did not answer so they were declared in default, judgment by default was eventually rendered by the trial court and that 13

June 20 part 3 The next step that we will encounter is that of serving the defendant with summons it is by this process that the court will acquire jurisdiction over the person of the defendant, as to the person of the plaintiff the court acquires jurisdiction over the person of the plaintiff upon the filing of the complaint in court. The court may acquire jurisdiction over the defendant without the summons, if the defendant by any act which would imply that it is recognizing the authority of the court to proceed over him and he submits to the jurisdiction of the courts if for example the defendant was to travel to a foreign country, he learned that a case was filed against him, before he would file a motion for extension of time, he simply filed a motion for the court to allow him certain period when he comes back to answer whatever may be the complaint he does not wait for summons to be served upon him. By filing he thereby in effect he impliedly accepted the court authority to act on the case filed against him. So in effect he submits to the jurisdiction of the court because he did not file a Motion to Dismiss because what he filed is just a motion asking for time to file his answer.

Twitter: 1226aponz the defendant learned that there was already a judgment against them when the sheriff came to their place and levy on their property they then went to the high court to question the validity of the judgment and its execution. The court said that the substituted service can only be valid if when service in person cannot be possibly made and the impossibility of serving summons in person cannot be done within a reasonable time. Now in this case specifically the S.C. noted the sheriff did not performed his duty regularly simply had somebody in the house of the defendant affixed her signature because the summons in the complaint was tendered to her, as to who she is in relation to the defendant the summons does not disclose. So the requirement that it be served to a person of sufficient age and discretion for ______________has not been disclosed from the service of the summons, the name of the old lady who received the summons is not even indicated there only a signature which is not legible. The court also called attention to the fact that the sheriff did not inquire when the husband who was in Bicol would be returning. There is no showing that the absence of the defendant at his residence would involve an unreasonable length of time that summons has to be served in a substituted manner. The propriety of serving summons in a _________must be established and this court called attention to the proof of service of summons which is a _________step to complete compliance with due process of law. Proof of service it is not enough that you serve it in the manner that is stated, proof of service in the proper way must be complied with. The importance of service of summons as the pivotal point when the court can render judgment binding upon the defendant, if it is not shown that the court can render judgment binding on the defendant, it will be the court that will be in error in rendering judgment without verifying that the judgment can stand. Bear in mind that it is at this stage where that the validity of everything that will follow against the defendant depends because if the summons was not served in the way that would fulfil what is expected in due process of law giving him a chance to protect his property, the service would only be a mechanical way and does not fulfil for which the summons is 14 required and in a manner for which it is to served. The high court also noted the fact that the sheriff did not asked when the wife would be returning to what part in the U.S. she has gone because if she would be returning on the same day the high court intimated that the sheriff should come back the next day and served her the summons. It is not enough that because you were not there summons will be served to anyone who is of sufficient age and discretion and who is residing there. So understand the sequence in which this manner of serving summons as presented in the rules of court they are not really in their chronological order. It involves exhaustion of each of these, exhaust first the availability of serving summons in person to the defendant , it must be that there is no certainty on when the defendant will return in that it is not known whether he could still be served with summons in person within a reasonable time, that it is not known when he will be returning then that would render the service of summons in the substituted manner without any basis because the basis of serving summons in the substituted manner in that service in person cannot be done within a reasonable time this cannot be done in jurisprudence laid down by the high court it is equivalent to it is impossible to be done within a reasonable time, not really a delay in the time, the possibility of serving it within a reasonable time that is why the high court was keen about the sheriff taking note when he will return what part of Bicol he was because if he would return on the next day, the high court he could be served on the next day. Earnest effort should be exhausted to serve him summons in person. It does not mean that the court serving him summons in person cannot be done at the moment he can already resort to the substituted manner. It must be borne in mind that proof of service requires the sheriff still to comply with what he should comply with in serving the summons in a substituted manner. This is the tenor of jurisprudence regarding substituted service do not take it in the spirit of making it just because the defendant cannot be served in person. It must be shown that the sheriff would exhaust effort to serve the defendant in person but the defendant cannot be served in that manner and it would be a reasonable time cannot do it to serve him in person.

Twitter: 1226aponz As to the substituted if it will be served in the residence of the defendant the person to whom the substituted service is to be done must be of sufficient age and discretion and he must be residing there, if there is no such indication that the person to whom the substituted service was effected was residing there the service in that manner is not valid. And therefore the judgment by the court rendered against the defendant because the defendant did not file any answer will be correspondingly null and void. Understand that it is by this stage that the court acquire jurisdiction over the defendant that the judgment rendered against the defendant will be legally valid against him and not just a denial of due process of law. It will be tantamount to denying the defendant of his right of property without complying with the due process clause of the constitution. Now serving the defendant with summons through publication, there are 5 instances of this stated in the rules of court Know this, because in any other situation outside of the 5 instances referred to serving summons by publication is not valid. It is vaild only if the service was made in that situation which the rules allow publication. If the rules do not allow publication, serving summons by publication would be useless, the nagging question here is whether service of summons by publication in an action In Personam is binding upon the defendant , now you should understand what is an action In Personam, differentiated from an action In Rem or Quasi In Rem and whether it is equivalent to a real action or a personal action thats why it is called In personam, whether an action is a personal action or a real action depends on the subject matter involved. If the action involved previously of real property title to, or ownership of real property or interest therein it is regarded as a real action. If the action in respect of privity of contract for damages arising from contract it is a personal action. This classification of action is relevant as to the venue of the action, the real action must be filed at the place where the real property or the greater potion thereof Is situated whereas a personal action must be filed at the option of the plaintiff, where the defendant resides or where he the plaintiff resides. It is relevant to the matter of venue on the other hand classification of action as In Personam or In Rem or 15 Quasi-In Rem does not relate to the subject matter involved in the action, it may be a real action like an action to recover real property but that is still a personal action not an action in personam, not an action In rem. Classifying an action as In Personam, In Rem or Quasi In Rem refers to the binding effect of the judgment that may be rendered in the action. If the binding effect of the judgment against anyone who may be minded to raise a claim against the one rendered in the judgment, then it is an action in rem. The judgment is binding against anyone who may be minded to raise claim contrary to what the judgment had disposed of, so we say in a judgment in rem the effect is against the whole world. It is a judgment in personam when the binding effect of the judgment is always on the person or party against whom the judgment was rendered and those who are privy to him, so it has no binding effect to all others who are not parties to the action or successors to the parties to the action. It is a judgment quasi-in rem when the action is directed to a particular party but the binding effect of the judgment may be satisfied on property involved in the action so it is called quasiin rem. Now since an action in personam is binding on whoever would be minded to raise a claim against that adjudged or disposed of in the action. The judgment is binding so to speak on the whole world that is why serving summons by publication is authorized. Likewise although the judgment may be binding upon the defendant and those privies to him if there was property against which the judgment may be satisfied then it is a judgment quasi in rem, either the parties against whom the judgment was rendered or the property involved against which the judgment must be satisfied will be enforced to satisfy the judgment so publication is allowed because this is not merely against the person or persons involved in the action. So a judgment in rem and quasi in rem serving summons by publication is generally valid. As to the judgment in an action in personam the common belief is that serving summons by publication is not valid because the defendant can be bound by the judgment only because of his relationship to the contract or claim subject of the action however under rule 40 on service of summons, you have there a situation where summons by

Twitter: 1226aponz publication may be done among others when the defendant is a resident of the Philippines but temporarily out of the country. Analyse the situation Philippine courts have jurisdiction over him because he is a resident of the Philippines only he is temporarily out but he is in fact a resident of the Philippines who is considered but at the moment summons is to be serve he is out , the fact that he is still under the jurisdiction of the Philippine courts cannot be denied because he is a resident of the Philippines, being out of the country is only temporary. So even though the subject matter of the action would render the action in personam because it relates to privity of contracts for damages, the Philippine courts have jurisdiction over him. So whether summons should be served by publication or otherwise, the Philippine courts have jurisdiction over it, this is an exception where the action may be in personam but serving summons by publication is allowed because of the express provision of the rule on that particular situation. It is there which had been added not in this provision but in the previous provision of the rules that the subject matter of the action may be in personam but the defendant is nevertheless a resident of the Philippines so Philippine courts have jurisdiction over him that is why under that situation summons may be serve by substituted service or by publication. When the defendant is a resident of the Philippines but temporarily out of the Philippines so he Is still within reach by Philippine courts. Judicial processes of Philippine courts will still be binding on him . That is why even though the action may be in personam the fact that Philippine courts has jurisdiction over him render the service of summons immaterial whether by publication or substituted service. So you correct whatever impression may be created in you by that saying that when the rules of court then was different from what the rules of court now provides. Now more than this, under sec 16 of rule 14 you have there extra territorial service of summons, not extra judicial but extra territorial, serving summons outside of Philippine territory. Now Youll notice here that summons may be served in person even outside of Philippine jurisdiction if the court where the action is filed intended had given leave of 16 court or permission to serve summons by publication or personally and you will notice that there wil be first a hearing to determine with certainty that the person who will be deputized to serve the summons can really serve the summons in person to the defendant. If the court is convinced that the person to be deputized to serve the summons can really serve the defendant in person the summons, the court may authorize serving him in person. Now you notice added in that provision, under these provision of the rules any other way that the court may deem sufficient. This is rather vague,it does not refer to particular manner of serving summons, it depends on what the court will consider as sufficient to serve the defendant with summons. Serving of summons by publication require that the summons will be published in the newspaper of general circulation so that the possibility of the defendant being able to read that summons is great for it is in a newspaper of gen circulation. In the problem given in the bar exams on this summons was served in a newspaper known as Dibidendado and this dibidendao publishes the racing program in the race track stating there the name of the horses, jockeys. The question is can it be regarded as a newspaper of gen circulation when it only appeal to the race aficionados. That was the thrust of the bar problem but because of the new provision there that was surreptitiously added, the court regarded that it is sufficient because the defendant is one, a racing aficionado reading the dibidendao. Because it it is now added there, you underscore that because that appeared there only in the revised rules. It was no there before the court is given the discretion to consider that the defendant was sufficiently served with summons and therefore there is already enough compliance with the requirement of due process of law that he will then be bound by the judgment that the court will render. Authorizes that the defendant has been properly served with summons, the court acquires jurisdiction over him. So the court can just explain why and in that manner the court can already proceed with the trial of the case and and dispose of the matter before him. This has been an improvement of the rules because there are defendants who really try to evade judicial

Twitter: 1226aponz processed so they cannot be bound by the judgment that the court may render. But it is dangerous because corrupt judges may capitalize on that, pronounced that the defendant has been sufficiently been served with summons there is compliance with the requirement of due process because of this and unless there is substantial evidence to support the observation of the court the possibility that the court will make comments there which are not really correct. By the way it is stated there are remedies available to the defendant in the event that he could show that he had not been bound by the summons. The wording under there is so simple that it could really be abused it is there but it was not there before so you take note of that While the court itself can consider that the defendant has been sufficiently served with summons even though it was not served in the manner stated under the rules that would already authorize the court to render a valid judgment against the defendant because that meant that the court had already acquired jurisdiction over the defendant. Now this had been considered necessary to expedite litigation because many defendants managed somehow to avoid the effect of terminating the case by avoiding or evading summons so that the court cannot acquire jurisdiction over his person and correspondingly the court cannot render a valid judgment against him to bring an end to the litigation that is long pending a court is authorized to consider that the defendant had been properly served otherwise the defendant may be continuously questioning, the manner by which he had been served with summons. Now on a different manner of serving summons, you give attention to this extra-territorial service the instances mentioned there affecting the civil status of the plaintiff which is a proceeding in rem. Now you must have notice that when the action involved a proceeding in rem, publication of the proceeding is always necessary and that is precisely to show that there was compliance with the constitutional requirement of due process of law the defendant have been properly notified through the dissemination of the notice to him made in the _________this will lead to expedite the disposition of the action but it may also bring about corruption 17 specially where the amount involved is a huge amount it has already reached millions the court may be already look into retirement he may or may not care if he would judge it in a manner not in accord with due process ( big rhetoric about corruption etc) Now after the defendant has been served with summons the defendant must react to the summons the service of the summons render him bound by the proceedings in court and if the summons require him to file an answer within 15 days he must do so or he must at least request that he must be given further time to answer so this will bring you to a situation where the defendant may avail of the different option available to him under the rules of court. You may think that the only option for him to take is to file an answer that is not correct. Under the rules of civil procedure the defendant is allowed different options depending on the necessity that he has to comply with in the circumstance when he was served with summons. So after the issuance and service of summons will come the defendants duty to react or respond to the summons otherwise he will be declared in default. You give attention to the service of summons to a juridical entity particularly corporations the revised rules states the persons who may be validly served with summons for a corporation there is already a ruling that the persons who are mentioned there can only be validly binding on the corporation if it was served in that order also. If the President is around serving summons on the General Manager will not be valid, or if the General Manager is around serving summons to the Treasurer will not be valid. In other words when the provision of the rules specify who are the officers on whom summons may be served in behalf of the juridical entity this does not mean that any of them can just be served with summons. The summons must be served in that successive order also. On one who is insane you will notice that service of the summons to the insane is also required even though he may not be able to understand what it is, but in the service of summons to a prisoner, the prisoner is not served with summons it is the Supt. Or supervisor of the institution to whom the summons is to be served. This is reflective of the attitude that we

Twitter: 1226aponz follow under the Spanish system that prisoner are chattels of the govt that is why tinkering with a prisoner is a crime. They are not really regarded as free persons during their sentence they are regarded as chattels of the govt that is why an insane is better than a prisoner because an insane is served with summons. Know how summons will be served on persons who are incompetent but the more commonly involved situation is serving summons to corporation. Before the rule refers to cashier now it refers to treasurer it is an improvement because the treasurer is a corporate officer the cashier is not, added here also secretary before now it is corporate secretary because really under the old rule there may be many secretaries in a corporation but they are not corporate officers, the corporate officer is the corporate secretary. Under now however the persons who may receive summons binding upon the corporation is the In House Counsel not just a retained counsel who may not be an in house counsel. An in house counsel is considered as a corporate officer in matters that may involve a corporation internally and that is why it included now in the setup of corporate management and serving of summons to him is binding but he is in the last one. Observe the order in which the corporate officer may validly receive summons that is binding upon the corporation. After summons has been served to the defendant the defendant is not only allowed an opportunity to answer, generally counsel for the defendant primarily looks for a ground to file a motion to dismiss because this would allow him time to study the case of the defendant. The court when a Motion to Dismiss has been filed that MTD upon filing will vacate the period that has already lapsed, the period for answering that has already lapsed so if the period for answering is 15 days mtd was filed on the 5th day the whole period of 15 days before is vacated so that even if the mtd will be denied a new period of 15 days is allowed to the defendant to file his answer now this was changed, the filing of the answer will only suspend and interrupt the running of the period for filing answer. So if the period for filing an answer is 15 days the general period and a mtd was filed on the 5th day, that means the period for answering remain suspended for 10 days. 18 If the motion will be denied, from the date of the denial, from the date notice of denial was received, the defendant will have 10 days not an original period anymore however if the mtd was filed when the defendant had only less than 5 days remaining let us say he filed it on the 12th day and the period of answering is 15 days he only has a period of 3 days under the current rule the defendant who filed a mtd will be allowed at least 5 days after he received notice of denial of his mtd. This is an improvement of the delay brought by filing a mtd which before will vacate the period for answering not merely suspend the period. Now it will merely suspend but in no case will the defendant be allowed less than 5 days after he received notice of denial of the motion. So you understand why the defense counsel prefer to file a mtd. Now the more important change is this under the former rule where the defendant raised as a ground for a mtd that venue is improperly laid or that the defendant had not been properly served with summons. These 2 grounds cannot be raised in any other pleading except in a mtd, the rule now is different all ground s for a mtd may be raised either in a motion or in the answer as affirmative defense. Before that was not the rules, the rules before calls for a filing of a mtd if the grounds were either the venue was improperly laid or that the court did not acquire jurisdiction over the person of the defendant . This is logical because when a defendant files a mtd on the ground that venue was improperly laid the implication of that was that the defendant in effect tells the court you are not the proper court who should try the case and therefore the defendant does not submit to the jurisdiction of that court because he in effect challenges the competence of the court to act in a case filed against him or if he would confess that summons was not served on him probably in effect he is claiming that the court did not acquire jurisdiction over his person so that is a move that will not bring about the court acquiring jurisdiction over the defendant because the defendant in fact questions the court acquiring jurisdiction over him. Under the old rule if you file a mtd in any of the 2 or 1 the defendant cannot raise this except in the mtd, if he would file an answer this grounds are waived cannot be _____ anymore

Twitter: 1226aponz because the moment the defendant files an answer the implication is he is submitting to trial in that court otherwise he would not file an answer.But under the ________rule any or all of the grounds for a mtd may instead be raised as an affirmative defense in the answer or he may raise this in a mtd. The logic behind this filing of a mtd has been removed if any of the grounds for a mtd was raised in the answer so that means that the defendant would not only be invoking the grounds for dismissal but would also traverse the allegation in the plaintiffs complaint by wqay of creating issues with what the plaintiff says the defendant should file a motion for preliminary hearing on those grounds which are grounds for a mtd so that the trial court will have to pass on those grounds ahead of discussing the issues raised by the defendant in traversing the contention of the plaintiff. So this would now raised the question would it be better for the defendant to file a mtd or would it be better for the defendant to just file an answer? Before this question does not present itself because the rules of court fix when the mtd may be based on certain grounds which cannot be raised as grounds in the answer. It is only on those other grounds where which may be raised in the answer or in the mtd that the defendant may have an option. But if it was improper venue or lack of jurisdiction over the person of the defendant under the old rule the defendant has no choice he has to file a mtd now not anymore the defendant has an option whether to file an answer or a mtd even on ground of improper venue now also under the old rules if the defendant would file a mtd on the ground that venue was improperly laid he should not raise any other ground in the same motion except that the court did not acquire jurisdiction over the person of the defendant. Any other ground which would in effect claim relief from the court could not be raised otherwise the ground of improper venue is considered abandoned and waived so if the defendant filed a mtd on the ground that venue was improperly laid and that another ground filed by him that the cause of action has prescribed, the improper venue is deemed moot and academic the court will then center on prescription of the cause of action this is because the court where the defendant raised the ground which 19 would call on the court to act in the exercise of jurisdiction the ground of improper venue is inconsistent or incongruous because as they said when the defendant move on this ground it is tantamount to telling the court that you are not he proper court whos should try the case but at the same time he asking the court to determine the issue of prescription so these are two inconsistent matters you tell the court that you cannot act but at the same time he is requesting the court to act. This is the result before now this is no longer true. Any ground may be raised in a mtd or in the answer as an affirmative defense. The only consequence that is retained is this any ground that has been raised in a mtd cannot be raised in the answer anymore and even those grounds which were not raised the mtd if availableat the time when the mtd was filed even if not raised he cannot raised it anymore as a defense in the answer because all grounds which are not raised in a mtd when a mtd was filed was deemed waived or abandoned so it cannot be raised anymore. This will then lead you to those grounds which are not waivable. So if a mtd is filed, grounds which are not waivable are not raised in the motion, these grounds can still be raised in the answer because they are not waivable. Like that the claim of liability has already been extinguished, paid or waived. And these cannot be waived so this ground may be raised even though even though it was not raised in the mtd because even if not raised in a mtd they are not deemed already abandoned the ground of prescription also cannot be deemed abandoned even if not raised in the mtd but the defendant filed a mtd. There are simply those grounds which are not waivable like lack of jurisdiction over the subject matter even if it was not raised in the mtd it can still be raise as a defense in the answer because that ground is not waivable. The ground that the subject is unenforceable under the statute of frauds also cannot be waived. If it is not enforceable then it is not enforceable. These are the complications brought about by the change in the rules, the rules are made more complicated unlike before very simple, these are the ground then you file a mtd, now any of those grounds can be raised in the mtd or as affirmative defense in the answer today you do not know which is which. The

Twitter: 1226aponz question now arises would it be better for the defendant to file a mtd or an answerraising these grounds but before proceeding to the trial the defendant should file a motion for preliminary hearing of those grounds for a mtd which were raised as affirmative defense in the answer. The answer to these questions are found under rule 10 on amendment of the pleadings. In your study of the basic rules here when the issues area already joined the defendant have already filed an answer the plaintiff cannot amend his complaint without prior leave of court but if the defendant filed a mtd, a mtd is not a responsive pleading and therefore the provision of rule 10 will not prevent the plaintiff from amending the complaint even if after the defendant filed a mtd. The plaintiff can amend his complaint even without leave of court because your mtd does not join issues with the complaint you cannot say issues are joined so even without leave of court plaintiff can amend the complaint. So at the time of ______the motion the plaintiff already corrected the error pointed out by the mtd. That the mtd becomes moot and academic because the error pointed out has already been rectified . This is the conseuquence if the defendant filed a mtd where the ground was raised plaintiff is not prevented from rectifying the error pointed out in the mtd so that on the date of the hearing of the motion the ground raised no longer exist because it had been rectified or corrected in the meantime. on the other hand if instead of filing a mtd the defendant raised he ground of sidmissal as a affirmative defense in the answer, having filed an answer would mean issues are joined with the plaintiffs allegation in the complaint so under rule 10 on amendment when the defendant had already filed an answer plaintiff cannot amend his complaint without prior leave of court. Say during the hearing of the prosed amendement the defendant can point out that the desired amendment should not be allowed, now if he filed a mtd he cannot question the amendment made because the amendment then will be a matter of right. So you will see that the filing of an answer under the present formulation of the rules would be better because if it was an answer that was filed plaintiff cannot just amend without filing a motion 20 with leave of court to amend and that would raise the issue on the necessity and propriety of the amendment. Now if the defendant raise the ground of dismissal in a mtd not in an answer since the mtd is not a responsive pleading the requirement of rule 10 that prior leave of court is necessary when the defendant has already filed a responsive pleading then leave of court is not necessary since a mtd is not a responsive pleading, plaintiff can just amend before the date of the hearing of the motion and so much so that in the date of the hearing of the motion plaintiff can inform the court that the error pointed out in the mtd has already been corrected or rectified. The court then will just dismiss the motion to dismiss. This is the effect in the change in the rules that any ground for a mtd may instead be raised as an affirmative defense in the answer. Unlike before on the 2 grounds I mentioned a mtd is unavoidable it is only the other grounds which are not waivable that may be raised in the answer even though a mtd was filed and those ground was not raised in the mtd that were filed. The nature of the mtd is that of an omnibus motion all grounds available at the time the motion was filed must be raised in that motion otherwise any ground that was not raised in the motion but available already at the time the motion was filed shall be regarded as waived and abandoned, this is on the principle why that when a mtd is filed all grounds available to the movant must be raised in the motion otherwise all those ground available to the movant at the time the motion was filed which was not raised must be waived and abandoned but the said waiver will only be true if the grounds that were not raised are indeed waivable. If not waivable even if not raised in the mtd the defendant can still raise in the answer as an affirmative defense. After all under the rules it is not waivable May the defendant file more than 1 mtd? On motion for bill of particulars there is a change from the old rules, the old rules allow the filing of a motion for bill of particulars for purposes of filing an answer but also for purposes of preparing for trial. Now that aspect for filing a motion for a bill of particulars for purposes of trial has been deleted. BOP is allowed only for purposes of filing an answer hence if the defendant was already able to file an answer he

Twitter: 1226aponz cannot move for a bill of particulars anymore. The present_________for filing a motion for bop is that the allegation in the plaintiffs complaint lacks particularity that if the defendant would not particularize the allegation the answer that the defendant would file would be ambiguous he cannot categorically make a denial without particularizing the claim of the plaintiff for purposes of trial no more. Leave the matter for clarifying facts or issues for purposes of trial to the different modes of discovery. The matter of depositions request for admissions, interrogatories to parties they are the one that are available not the one of bill of particulars. So that is the change. Summary judgment. Study very well what is summary judgment and when it is proper. The remedy is available also to the plaintiff at this____is available to the defendant your read rule 35 you find there sec 1, that the remedy is available to the plaintiff , now on what premise is this remedy allowed ? then answer what does the answer alleged. Here we come to the claims, permissive or compulsory, cross claims then we go to plaintiffs options. which when a MTD is filed the original period for filing an answer is vacated, while the motion is granted or denied, a new period for answering will arises, this has been resorted to, to gain time and if they file the MTD already 2 or 3 days before the expiration of the period of answering, the full number of days that had already lapsed will be vacated, again the defendant will be entitled to gain another 3 days ( im not sure about the exact words here) to study the case further. Under the present rules, filing of the MTD will only interrupt and suspend the period for answering. But if the defendant files his motion when he has less than 5 days remaining out of the period for answering stated in the summons he is given a period no less than 5 days to file his answer. The MTD eventhough there is a merit in the ground raised if the defect pointed out can be corrected by amendment, the court will deny the motion but instead order the plaintiff to amend his complaint to rectify or correct whatever maybe pointed out as a ground for dismissal. There are only 4 grounds there that the court cannot really avoid dismissing the complaint. So take note of them. If the complaint fails to state a cause of action then, no matter how the court will proceed it will not render a valid judgment. Because the complaint fails to state a cause of action. Or when the action or the claim has already been extinguished or has prescribed they cannot be subject to another trial, it will go against the rule of Res Judicata or when the claim is unenforceable under the statute of frauds you cannot have it subject to litigation even though ______-otherwise the court will be acting without jurisdiction, because it is unenforceable under the law. So you take note of those grounds which unavoidably the court will have to grant the motion to dismiss. Otherwise the court will only order the plaintiff to amend his complaint. ___________________________________________ _____important change Under the former rule on Motion to Dismiss as to the ground of Improper Venue and Lack of Jurisdiction over the person of the defendant, these cannot be refused as a deterrent in the answer that the defendant may file, these grounds can only be raised in a MTD. I stated that before under the current revised rules any and all the grounds stated 21

June 22 As regard last Monday where I have begun lecturing on the 2nd step on civil actions, and I have reached that point where the defendant have been served with summons and should react to the summons with the options available to the defendant other than filing an answer and the of filing an answer is generally the last step that the defendant will choose in reacting to the summons, because once an answer is filed, the defendant join issues with what the plaintiff alleged in his complaint and therefore trial will follow, but as to the other options no trial will follow. The first option is the Motion to Dismiss this is the instinctive reaction of defendant and defense counsel, to find a ground with which to ____ the facts of the complaint, this is done not to avoid the action but to gain time because as I pointed out with you last Monday, under the old rules of procedure on

Twitter: 1226aponz under Rule 16 for MTD, may either be raised in such motion or in answer to be filed by the defendant, if raised in the answer it will have to be pleaded as an affirmative defense but before trial begins, the defendant will move for a preliminary hearing of those grounds which are grounds for dismissal, so that whatever error provides for a grounds for dismissal will be corrected ___________ of the court may make an order as may be necessary. We therefore call on you to understand whether it is to understand whether better for the defendant to file for MTD or to file an answer. This should be understood by you in the light of rule on amendments under rule 10 of the rules of court. Under the rules on amendment as long as the defendant has not yet filed an answer that will join issues to the allegation in the plaintiffs complaint, the plaintiff can amend his complaint as a matter of right. The amendment ________the amendment may be made without prior leave of court because there are no issues yet. A MTD does not join issues with the allegations in the plaintiffs complaint because a MTD is not a responsive pleading. It is only when an answer is filed that is to say will join issue with what the plaintiff alleged in his complaint. So the court with the change he made after issues are joined the court must be notified ( I can not make much sense of this, I could not hear clearly) Thats why leave of court is necessary once the defendant has filed an answer. None of the party can just change his position in the pleading without the court ___________________________________________ ___________________________________________ ________________________________________ If the defendant instead of filing a MTD would file an answer where the grounds for MTD are raised as an affirmative defense the defendant will have a benefit of a hearing before the plaintiff can amend because the amendment is no longer a matter of right by the defendant filing an answer, they must aske leave of court, there will be hearing to the merits______ of the amendment the plaintiff made, if there is no answer has yet been filed, the plaintiff can simply file an amended complaint whatever may be the defect noted in the defendants MTD, can be summarily corrected by the plaintiff filing an amended complaint ______from the hearing of the 22 MTD, the motion becomes academic, because the defects pointed in the MTD has already been corrected or rectified by the plaintiff through an amendment._____threll be no more hearing. The plaintiff was able to correct without court intervention. But if it was an answer that the defendant filed that answer will join issue with the allegation in his complaint and therefore plaintiff will file a motion for leave of court to amend to correct the defect pointed out by the defendants motion. Therell be a pending motion court will conduct a hearing the court will look into the merit of the MTD _______and the plaintiffs move to amend the same. So there is better protection to the defendant if he files an answer. But ________this those grounds which looked into the ______competence of the court to act into the case will not really stand anymore, the rules on venue have not changed the fact that venue can be waived so if you file a MTD on improper venue, the court cannot dismiss the case on the ground of improper venue where the defendant has already filed an answer it would amount to waiver of the rules on venue. On this change on the rules which was made only now after several decades when the important ________is something that the supreme court adopted just to justify its position_______but in the point of reason it is absurd ______________file a MTD on the ground of improper venue is equivalent to telling the court that you are not the proper court to decide the case while if the defendant files an answer he thereby submits his case for hearing by that court, it will join issue with the allegation in the plaintiffs complaint. That is the ____ the ______ the filing of the MTD did not acquire jurisdiction over the person of the defendant but the defendant files an answer it is very inconsistent because when the defendant files a MTD it is tantamount to telling the court you cannot try me because the court have not acquired jurisdiction over me and yet he files an answer. So it is really absurd __________________to expedite the disposition of the case because after filing a MTD the last option for you is to file an answer. The second option I mentioned is the filing for a Motion for Bill of Particulars. So if the defendant, has no basis in filing a MTD, another

Twitter: 1226aponz option available to him in a civil action is a motion for a bill of particulars, this option presupposes, that the material allegations of plaintiff as to the cause of action on which he files his complaint lack particularity or definiteness, so the defendant cannot make specific denials. Or that the defendant cannot file categorical answers. That the defendant by this option ask the court to order the plaintiff to file bill of particulars to provide a more definite or particularized allegation of the cause of action. Where a defendant avails of this option 3 things are required 1) the defendant must point out in his motion the ambiguous matters which requires particularization. 2) In the same motion the defendant must point out the paragraph where the supposed ambiguous allegation is alleged and 3) the defendant must allege the details that he needed to be able to file an intelligent answer. Youll file this under SEC 1 of Rule 12. If the defendant will file this motion without compliance with this 3 requirements, the motion is said to be Pro-Forma, you learned in your basic years that when you say that the motion is Pro-Forma it is merely saying that the motion is dilatory, that the motion has no substance, it has no substantive quality if it does not comply with what the Rules of Court requires to be disclosed in the motion, hence the effect when a motion is said to be Pro-Forma, the filing of that motion will not suspend or interrupt the running of the period prescribed by the rules for the filing of the answer. For the answer governed by the 15 day period of filing even when the motion for bill of particular is filed, the period of 15 days will be running so much so that if the motion will be denied the defendant has only ________to file his answer because the filing of the motion for bill of particulars did not interrupt by itself the running of the period for filing, this is the effect of filing a Pro-Forma motion. You should understand the meaning of ProForma under procedural law. If the motion is impressed with merit upon the filing of the motion, the period for filing an answer by the defendant is interrupted and suspended, it will remain suspended until the plaintiff files the bill of particulars if the court will grant the 23 motion, otherwise the period for answering _______if the court should deny the bill of particulars, if the court granted the motion for bill of particulars, the plaintiff is expected to file the bill where the ambiguous allegation would have to be particularized, the rule allows plaintiff 10 days, after he is served with the order, unless the court take into account the coverage of the bill of particulars would grant a longer period. If the motion was filed when less than 5 days for the answer is left to the defendant, if the motion will be denied the defendant should be given at least 5 days within which to file his answer which is true only if the motion for bill of particulars will be denied, if the motion for bill of particulars is granted, the 5 day period will become academic because the period will not run for as long as the plaintiff has not filed the bill of particulars. The defendants period of answer will only begin to run once the plaintiff already filed the bill of particulars asked for by the defendant for him to be able to file an intelligent answer. Under the revised rules now, the bill of particulars may be invoked only for purposes of the defendant being able to file an intelligent answer unlike under the old rule a bill of particulars may be resorted to not only for the defendant to be able to file an intelligent answer but also for the defendant to be able to prepare for trial. So under the old rule even though the defendant had already filed an answer he may yet file a motion for bill of particulars to extract certain factual matters which he could make during the trial of the case. Now it is no longer allowed Bill of Particulars can only be availed of for purposes of preparing an answer to the complaint. So if the defendant had already filed an answer eventhough there are ambiguities in the allegations of the complaint he cannot avail of this motion anymore. This option is available to him only if he would file a motion for this only before he had filed his answer. The moment he filed his answer no more, because that means he could understand the allegations in the complaint. So you be mindful of this change. The next option available to the defendant under the rules of civil procedure is that of the Motion for Summary Judgment under Rule 35. A summary judgment is rendered without the benefit

Twitter: 1226aponz of a trial so with this option the defendant ask the court to render judgement already without going to trial. This is allowed under the rules on the premise that the plaintiffs cause of action as alleged in the complaint is not genuine or that the action is spurious or sham as differentiated from a motion to dismiss. A mtd is proper when a complaint on its face does not allege a cause of action. Now if a complaint on its face alleges a cause of action but the cause of action alleged is not genuine, it is spurious or sham. The defendant have to avail of this option, a Motion for Summary Judgment. But this is only available to the defendant if the defendant will be able to show the non-genuineness of the plaintiffs cause of action summarily through : 1. 2. 3. 4. Affidavits Depositions Admissions Other competent documentary evidence that would show through the use of the receipts where plaintiff acknowledge that he received the amount, under the __________contention of the defendant is that the forbearance or interest of 20k is not applicable because the law does not stipulate the payment of interest and under the law interest will not be due unless it is expressly agreed upon so if the defendant can show this then the plaintiffs complaint appears to be not genuine because he is trying to recover a sum that he is only trying to recover the interest, which interest is not recoverable because there is no agreement to that effect, that the loan will bear interest, now if the plaintiff would say that the amount that was discounted was supposed to be the fee for the preparation of the document and not as a forbearance or not in the nature of an interest, that would be an issue for the court to determine whether the 20k is an interest or not then summary judgment is not proper anymore. You must refer to the previous study of the procedure that a motion for summary judgment is always subject there is no issue of fact right in the action that would cause for a trial in which the court has to receive evidence to know whether the contention of the defendant or the contention of the plaintiff is true. Bear in mind as a basic rule in summary judgment that this is only proper and the court will be acting in jurisdiction only if there is no issue of fact existing in a case that will call for reception of evidence to find out whether the allegation of one party or the other party that is correct or that is true. Summary Judgment is only proper when there is no issue at all. So you have here a case where the cause of action has not been___________but because there is an issue raised the court cannot render summary judgment as long as there is an aspect of the case calling for a reception of evidence to determine whether the contention of the plaintiff or contention of the defendant is correct summary judgment is not proper. Because of the requirement that in this motion the movant must support his allegation with affidavits, depositions, admissions or any other competent documentary evidence the period for the notice of hearing of a motion for summary judgment is exceptionally ______you must have learned before 24

That the plaintiff as a matter of law is not entitled to the relief prayed for, that there is no need to go to trial because the plaintiff is not entitled to the relief that he is praying for in his complaint. I f the motion is granted the court will only render judgment NO TRIAL although the cause of action alleged in the complaint maybe ___________________________if the defendant will not show his in his application the depsitions, admissions and other competent documentary evidence, the defendant will have no choice but to go trial,____that the plaintiffs cause of action not been made Ex. Defendant borrows from the plaintiff certain amount of money, the amount let us say is 100k when the amount was released to the defendant , the amount that supposedly was 100k but actually 10k was already discounted so what was given to the defendant was only 90k, 10k was supposed to be forbearance for the loan by way of interest, the defendant is saying and he has already completed paying the 80k, plaintiff filed an action to recover 20k because the note signed by the defendant is for 100k, the defendant may file a motion for summary judgment if he could obtain affidavits from persons who have personal knowledge that 20k was deducted as interest or he could take depositions of persons who have knowledge of the duductions or admissions

Twitter: 1226aponz that the period of notice in a motion is only 3 days, that is why when you refer to a motion you always mention of the 3 day notice rule, it is only in the case of a motion for summary judgment that the period is not 3 days but 10 days, because it must be supported with evidence to substantiate the contention of the movant. This option is also available ___________the plaintiff as against the defense that the defendant may ___________if the _______ of the defendant is not genuine________ to the judgment already. Now when the options which the rules of civil procedure afford a litigant is no longer available to the defendant, then the last option of the defendant will take is to file an answer. The period for filing an answer any of these options maybe filed within the period of answering. So you should know that the rules of procedure has different periods of filing an answer, generally at is 15 days after summons was served to the defendant. But if the defendant was a foreign corporation without a resident agent to received it summons shall be served to the public office which under the law which exercises supervision over the foreign corporation. For example if the foreign corporation is an insurance company the government office which supervise this is the office of the Insurance Commissioner, so summons will have to be served to that office, that office will notify the foreign insurance company about the filing of the case against it and under Rule 11 on this the period for the defendant to file his answer is 30 days after the government office has served notice of the case filed against it. When the summons is served by publication Section 15 of Rule 14 provides that if the court grants the _______to serve summons by publication, the court must fix the period within which the defendant served with summons by publication may file his answer and that provision of the rules fixed a period of not less than 60 days. It can be more than 60 days but not less than 60 days after notice through such publication so any of these options may be availed of within such period of filing an answer as the case may be, may be 15 days, 30 days, 60 days . Within the period of answering the defendant cannot be declared in default As to the defences that the defendant may raise these are classified as Negative Defense and 25 Affirmative Defense. Negative Defenses are mere specific denials but not any denial will be _____denial by now you have learned that the rules of court provides how a denial can be considered specific ________________that the defendant specifically deny that made the denial specific, the rules of court provides when the denial is said to be specific so unless you follow that the denial is NOT specific and you have to observed order and when the denial is NOT a specific denial the effect will be an IMPLIED ADMISSION. So instead of a denial it becomes an admission. Under the rules a specific denial should be made in any of the 3 ways: 1. By pointing out particularly the fact which is to be denied and the paragraph in the complaint where such fact was alleged. The denial must state the reason why the denial is being made if untrue, that denial must allege as far as practicable what is the truth about the matter. It is not enough that for the defendant to say that the allegation in paragraph 20 is not true, you have to allege what is the truth 2. The second manner of making ______ specific denial is by stating Lack of Sufficient Knowledge or Information to form a belief as to the truth of the allegation being denied referring to the fact which is unknown and the paragraph in the complaint where such unknown fact is alleged by the plaintiff. This is an absolute denial because the defendant had__________knowledge about this. It must be however that the fact being denied is something that the defendant has no way of knowing it. If the defendant cannot be expected not to know what he is denying the effect would be an admission. Once it is admitted no amount of evidence can_______anymore. 3. The third one of making a specific denial or negative defense by pointing to the particular paragraph of the complaint where the matter to be denied is alleged and stating that fact being denied and what fact that is alleged is being admitted. This is known as Qualified Denial. As to the part denied the denial will stand as specific denial, and as to the fact admitted the same will stand as admitted. The rules consider the defendant to be acting in good faith because he admits that which is true and he deny what he does not know. If the denial therefore is but done in either of these 3 ways, the effect will be

Twitter: 1226aponz denial. So the burden of evidence will be upon the plaintiff to prove the allegations in the ________because the denial are specific. On Affirmative Defenses, these are in the nature of Confession and Avoidance when the defendant alleges a defense he impliedly admits the allegations of the plaintiff but new matters will prevent or preclude a recovery from the defendant if it is said to be an affirmative defense. It is in the nature of confession and avoidance. Confession because by which defense the defendant impliedly admits the plaintiffs allegation of the complaint but the defendant alleges matters that will bar or prevent the plaintiff from recovering from him. The effect of the affirmative defense is that the burden of evidence is shifted to the defendant to prove what he claims to _____ or preclude recovery by the plaintiff ___________________________________________ __________________________________________ (incomprehensible sentences) burden of the evidence is shifted to the defendant to prove prescription because it is an affirmative defense. So when affirmative defense is raised the burden of evidence to prove the affirmative defense is upon the defendant. Relative to this so called affirmative defense or specific denials you must have heard about the so-called negative pregnant. A negative pregnant is alleged as a denial but the law considers it as an admission the denial is couched as a specific denial but it lacks particularity that it is not known which of the facts being denied is the one being denied so the denial is pregnant with an implied admission that is why it is referred to as negative pregnant. Negative because it is a denial and pregnant with admission, the effect an implied admission, There are two ways by which a negative pregnant will arise and if the denial is couched in a language that would render it as a negative pregnant, the effect is admission not a denial. 1. First way in which a negative pregnant is constituted is when the defendant can make a denial which merely reiterates verbatim the allegations being denied so much so that it is not known which of the facts in the allegation is being denied so the other facts remain to be impliedly admitted. For example let us say 26 that the paragraph 3 of the plaintiffs complaint ___________that on June 1 2010 that the defendant came to the house of the plaintiff at No 4 Espana Manila, and then and there borrowed 10k with the promise to pay the same 1 week later. In his answer the defendant alleged this : that the defendant denies plaintiffs allegation in paragraph 3 of his complaint that on June 1 2011 that the defendant went to the house of the plaintiff at no. 4 espana blvd. and then and there borrowed 10 k with a promise to pay the same 1 week later. And you do not know which of the facts stated there is being denied, is it the date ? is it the amount ? is it the address? Is it the promise to pay ? _____________________________________ ___________________________________ the denial is pregnant is implied with admission. All those matters which are not specifically ________________denied will raise an implied admission, that is why it is pregnant with implied admission.if that would be the case of the denial_________that would be a case of admission not denial because that is what we call as negative pregnant 2. The other way by which a negative pregnant is constituted is illustrated in a case where the allegations centers on the allegation of the objects of the obligation and the defendant makes a demand of that qualification only raising an implication where the obligation is not denied but only the qualification of the object involved that is being denied for example if the plaintiff alleged in his complaint that on the night of june 1 the defendant came to his house in espana and borrowed from him his Honda Motorcycle with a promise to return it the next day, the defendant made his denial by stating that the defendant denies that he borrowed a Honda Motorcycle from the plaintiff, you can say that the denial is about the Honda Motorcycle, he did not state there that he denied having borrowed any motorcycle of the plaintiff , he may have borrowed a motorcycle but not Honda, an

Twitter: 1226aponz admission already. Admission already of the allegation. Negative denial is couched in that kind of language. It is referred to as a Negative Pregnant. The implication is he borrowed a motorcycle but not a Honda. Effect is admission no evidence is needed to counteract that admission that is relevant with the so called negative defense. A counter claim is said to be compulsory when the defendant is compelled to raise as a counter claim in the same action filed by the plaintiff because it arose out of the same transaction or occurrence which is the subject of the plaintiffs cause of action so as to bring about a complete determination of the issue, it is called compulsory because it is not allowed to be raised in any other proceeding except in that same action filed by the plaintiff since the counter claim arose out of the same transaction or occurrence or current subject of the plaintiffs complaint. This is however subject to an exception where the counter claim arose out of the same transaction or occurrence subject of the plaintiffs complaint but it involves a party who is not included in the cause of action raised in the complaint so the said party who is not involved in the plaintiffs cause of action raised in the complaints. So the said party who is not involved in the plaintiffs action is not a party to that action and he cannot be brought there merely from________counter-claim . It can be subject of a separate action. The claim becomes not compulsory anymore becomes permissive counter claim. Relative to this compulsory counter claim one important thing which you should take note of new rules as amended requires the payment of docket fees even on compulsory counter claims. What you must have heard that if the counter claim is a permissive counter claim you do not pay docket fees for that, you must have learned that you only pay docket fees if the counterclaim is permissive because compulsory counter claim are in the nature of 27 a defense. The rules on the payment of legal fees have been amended to authorize the payment of docket fees even on compulsory counter claims if you do not pay the docket fees the claim does not become compulsory anymore. In a case where the counterclaim is compulsory and it really affected the plaintiffs claim because the docket fee was not paid it was not considered filed A permissive counter claim is one that involved a claim that arises from a transaction or occurrence differs from the transaction or occurrence constituting the plaintiffs cause of action it is a different action which the rules of procedure allows to be raised against the plaintiff although the action filed by the plaintiff __________considering that these counter claimis foreign to the plaintiff, the defendant who oppose the position of the plaintiff ______the defendant is required to pay filing fees otherwise the court will not act on it, on the part of the plaintiff if the permissive counter claim is recognized because the filing fee is paid the plaintiff must file an answer to that permissive counter claim otherwise the plaintiff will be declared in default since the plaintiff in the original action is the defendant in the permissive counterclaim ________when a permissive counter claim is pleaded by the defendant although the answer is not an initiatory pleading and certification of non-forum shopping is required only in initiatory pleading if the answer alleged a permissive counter claim the same must have certification of nonforum shopping in that respect the answer becomes an initiatory pleading because the counter claim would mean the defendant is the plaintiff to that claim and the plaintiff is the original action is the defendant in that claim. Logically, The certificate of non-forum shopping would be required only because of the permissive counter claim if there is no permissive counter claim there is no requirement of certification of non forum shopping. So if there is a permissive counter

Twitter: 1226aponz claim _____it is only in permissive counter claim that should not be acted upon by the court. But the supreme court ruled otherwise, the sc making reference to sec 5 of rule 8 on the certificate of non forum shopping said that under the rules case must be dismissed lack of cert of non forum shopping cannot be cured by amendment, not only the permissive counter claim but the answer must be dismissed which is unreasonable,it should only be the permissive counter claim that should be dismissed but the sc interpreted the rules unreasonably since the answer is not an initiatory pleading Cross claim 3rd party complaint REM July 05, 2011 Last time we went through the options available to the defendant under the rules of the procedure. If given time to avail of any these motions. After the defendant avail of any of the options given by the rules or the period therefore has already lapsed, it is now the turn of the plaintiff to make his move. But you have to know these in sequence, you cannot just copy this as they are written, you have to observe the sequence that we are _______so youre understanding would be sensible. The first option of the plaintiff is to file a motion to declare the defendant in default. Now, these options are made available to the plaintiff within 10 days after he received the denial if any of the options availed of by the defendant or after the period of the defendant to avail of these options has already expired. The first move available to the plaintiff logically is to file a motion to declare the defendant in default. Proper in the ff instances: 1. When the def. did not file an answer to the plaintiffs complaint. The def. did not comply with what the summons required him to do. 2. When the def. filed answer but already beyond the reglementary period for filing his answer. 28 So here, you understand when a litigant is required with the court order within a certain time frame. He should comply within that time frame otherwise he should file a motion for extn of time. If he did not file a motion to extend the time and if he just filed his answer beyond the time fixed in the rules, that answer will have no legal standing, it is treated only as a mere piece of paper. Tantamount to no answer have been filed at all. So if the def. would be filing an ans. But the time frame therefore had already expired, he should file a motion to admit and to that motion he should attach the answer, this motion to admit must have been studied by you under rule 15, in your basic study of civ pro. It is there purposely for those which are late. If the court granted the motion to admit the pleading attached thereto will be regarded as having been filed on time because the court will admit the same. The motion to admit must explain why he was not able to file it on time, if the court will find the explanation to be satisfactory the court will grant the motion to admit. The answer then will regain its standing in court. The third situation is when the defendant files its answer in court but did not serve the plaintiff with a copy of that answer in the proper way. Under rule 13, personal service to the adverse party is required and if that service was not done but instead the service made to the advsrse prty was by registered mail or subst. service, the pleader is required under sec 11 of rule 13 to make an explanation of why the personal service was not done. If that personal service was not done and no explanation was made as to why is not done, the pleading filed will be considered as not filed at all. Read se 11 rule 13, a new rule. So you will see a motion to declare def. In default at this stage, legally considered that the def. did not answer the plaintiff complaint at issue to that. Regarding a motion to declare defendant in default, if the def. is declared in default the_________is _____ to participate in the trial of the same but he does not loss his standing in court unlike under the former rule of procedure where a def. in default loses his standing in court and he will not be entitled to be served with any pleading, motion, or memorandum that the plaintiff would file in court and ______the courts final the courts final judgment or resolution or order. And where the def.

Twitter: 1226aponz had been declared in default the order of default not having been lifted or set aside, the court may proceed to render judgment against him based on the allegations in plaintiffs complaint but the court is allowed to mitigate the award of damages to the plaintiff but he judgment cannot increased the amount unless if the complaint nor be of a different kind than what was prayed for in the complaint. A hearing for the reception of plaintiffs evidence is no longer necessary but if the plaintiff moved that he be allowed to adduce evidence in order to establish his claim against the def. the court has the discretion to allow the plaintiff to do so, in which case the reception of evidence of the plaintiff will proceed exparte. The changes made by the revision of the rules are 1) a motion to declare the def. in default must now be in writing, as notice of hearing thereof is now required. The def. is given the opportunity to explain why he failed to to file his answer to the complaint or why the answer was filed late 2) 2nd consequence, under the revised rules the declaration of the court shall only bar the def. from participating from the trial of the case but he does not lose his standing in court unlike in the former rules of procedure where, the defaulting def. loses his standing in court. ________he is not served with any copy of what the plaintiff filed in court. What the def. shall receive are only notices of a judgment a final order or resolution made by the trial court. 3) under the revised rules, the plaintiff is not required to prove his claim anymore hence he is not required to adduce evidence to support his complaint, the court instead may proceed with the rendition of the judgment by default. On the basisi alone of the plaintiffs allegations in his complaint. Although plaintiff may asked that he be allowed to adduce evidence to support his claim for damages. Now you must have learned in your study of the basic rules that damages are never admitted in procedural law, this will always require evidence except the so called stipulated damages aka liquidated damages all other kinds of damages are therefore waived or abandoned if no evidence therefore was adduced. Under the old rules even when the def. has been declared in default for not filing an answer as required, plaintiff is still required to present his evidence ex-parte and prove 29 his complaint. If the defendant did not file his answer does not mean that the plaintiff will get a favourable judgment he may yet get a judgment which is against him, if he could not proved what he had complained of. Under the present rules no such presentation of evidence is required. The court may simply render judgment on the basis of the plaintiffs allegation in his complaint but the court is not allowed to change the kind or render a judgment for a higher amount than what is claimed in the complaint. Now the remedies available to a defaulted defendant are: 1. If only a motion to declare the defendant in default had been filed and an order declared the defendant in default had been issued but no judgment by default has been rendered yet. The defendant may simply oppose such motion or move for a reconsideration of the order declaring him in default explaining why he failed to file his answer or has not done so on time 2. If the judgment by default had already been rendered but the date is not yet executor, the defendant when is no longer directed to the motion to declare him in default but must be directed to the judgment by the court and that is through a motion for new trial, where he should explain his non filing of the answer on time was due to fraud, accident, mistake or excusable negligence. Known in procedural law as FAME. You must have learned this in basic procedure when you took up this cause that an _____ can move under the rules is allowed to be taken on the ground of FAME an affidavit of merit is mandatory explaining how the fraud, accident, mistake or excusable negligence came about and how it prejudiced the filing of the answer. Morever it is required that the movant must show that he has a meritorious cause or defense or 3) thirdly, the def. may file an appeal from such judgment by the court . or if the judgment by the court has already became final and eecutory the

Twitter: 1226aponz def. may file a pet. for relief from judgment in accordance with rule 38 of the rules of civil procedure. Now you will recall that pet. For relief is also based on FAME so the same requisites obtained here, affidavit of merits and a showing of a meritorious cause or defense aside from the pet. being verified. 4.) the def. may avail of a pet. For certiorari in exceptional cases. So you have these remedies available to a defendant. where plaintiff exercised the option to declare def. in default. It so it easily known to you that if the defendant is defaulted there is no answer on record hence no defense concocted by him record will only show the cause of plainitffs complaint. Under rule 9, where several defs. were sued under a common cause of action some answered, some did not, the answer filed shall be the basisi of the trial and no judgment by default shall be rendered against the non-answering defendant because the answer filed shall be considered as the answer for all the defs. Under the common cause of action. But you understand that this provision under rule 9 presupposes that the answer filed by the answering defendant raises defenses which are not personal only to him and may therefore served as a defense of the non answering defs. Otherwise if the answer filed raised a defense which is personal only to the answering defendant like minority, that answer will not benefit the non-answering defs. Who are not benefitted by the personal defense. You must understand that even in those cases where there are several defs. Some answered, some did not, the nonanswering defs. Shall be declared in default for not obeying the summons. What is not allowed is a rendition of judgment by the court because the trial must be held on the basis of the answer filed by the answering def. inuring to the benefit of the non answering def. Except if it raises a defense personal to the answering def. if minority while the other defs are not minors then they cannot benefit from that defense. The court can then proceed with the judgment _________ If that first option was not available to the plaintiff if after all the def. filed an amswer. The 2nd option, motion for judgment on the pleadings, if the answer filed by the def. does not tender an issue. 30 Now we say the answer does not tenser an issue if the def. has not made a denial of the material allegations constituting the plaintiffs cause of action or otherwise the def had impliedly admitted the matrail allegations constituting the plaintiffs cause of action. Commonly it is an implied admission if the defs answer failed to comply with the rules on how the specific denial of negative defense should be laid as we have taken this up in the defs option. If the specific denial or neg defense were not made as required by the rules the effect is implied admission. So what will follow as a consequence is a motion for judgment on the pleadings. While the plaintiff moves for a judgment on the pleadings. Legal it is submitting the case for judgment without presenting evidence based only in this allegation in the complaint of plaintiff and the answer of the def. These are the pleadings on record at that stage and that shall be the basis of the judgment asked for in a motion for a judgment on the pleadings so the pleadings are _________at this stage only the complaint and the answer. Now you must have learned in your basic study ,that where a plaintiff or a claimant filed a motion for judgment on the pleadings he in effect is waiving his right to present evidence in support of his complaint. Rather he is submitting the case purely on the allegation of the pleaders, the complaint and the answer nothing more. And since damages always require proof a _____a stipulated or liquidated damages when the plaintiff moves for a judgment on the pleadings he in effect abandons or waives all other damages prayed for in his complaint except the stipulated or liquidated damages. You must have learned before that while the court act on the motion for judgment on the pleadings, it is error of the court to render judgment with evidence other than the allegations in the plaintiffs complaint and the defs answer it would be an exercise in excess of jurisdiction to consider matters outside of the plaintiffs complaint and the defs answer. You know what a legal standing of it _________________. Common question In the bar exams require the candiddates to differentiate judgment on the pleadings to summary judgment. The distinctions are: 1. Judgment on the pleadings is asked for by a claimant while summary judgment may

Twitter: 1226aponz be asked for by the plaintiffs or claimant or by the def also. 2. Judgment on the pleading is always on the allegations in the complaint and the answer filed no evidence extraneous to which shall be considered where as in summary judgment, judgment is rendered on the pleadings filed by the parties and affidavits, depositions, admissions and other competent documentary evidence filed by the movant praying for the summary judgment.. In short the judgment is rendered not alone on the face of the allegation on the pleadings of the parties. Evidence extraneous to the pleadings are considered. 3. A motion for judgment on the pleadings is governed by this 3 day notice rule while a motion for summary judgment is governed by the 10 day notice rule and finally because of the requirement of being supported by affidavits, depositions and other competent evidence. So these are the prominent distinctions between the 2 judgment. 4. Judgement on the pleadings is proper when the defs answer does not tender an issue or otherwise admit the material allegation constituting the plaintiffs cause of action whereas summary judgment is proper when the defs answer tenders an issue but the issue tendered is not genuine or otherwise it is spurious or sham. So you should know when one remedy or option is proper, when the other option is proper, all of these would be useless if you do not know the proper basis to avail of which. Know the remedy and the basis when the remedy is available and when it is proper to invoke them. Know the circumstance or situation when you may avail of it. Availing of the remedy will bring about dismissal only, improper. After that motion for summary judgment which is also characterize by 31 the________i gave you when this option is available to the def. The next option is for the plaintiff to answer the permissive counter claim if any was ______by the def. insofar as the permissive counter claim is concerned you must take it that this is also in the nature of a complaint where the def. is the claimant and the plaintiff is the party against whom a claim was made if the plaintiff does not file an answer to the permissive counter claim, a declaration of default may be obtained by the def against the plaintiff in respect of the permissive counter claim. so also the def is required to pay the docket fee for the permissive counter claim because it is an independent complaint where the def is the claimant while the plaintiff is the party to satisfy the claim. If there is no permissive counter claim no answer is needed. The last option of the plaintiff is a reply. You must know the difference between a reply and an answer under rule 6 section 10 the reply is intended to join issue with the new matters that the defendant may have raised in his answer but even without filing a reply the new matter raised in the answer shall be deemed denied. This expressly provided under sec 10 of rule 6 impressing that the filing of a reply can simply be ignored after all the rule itself says that even if there is no reply filed, the new matters raised by the def in his answer have been denied. Now you must take back of what you have learned in the procedure because there are matters which cannot just be denied because the rules require that denials made must be under oath now while therefor the specific matters to be denied is required by the rules to be made under oath, necessarily the plaintiff would have to file a reply so that the denial of the new matter made by the plaintiff may be validly denied through an oath being administered in the reply. So in those case where a mere denial will not suffice the rules require denials under oath. The plaintiff wants to avoid the effect OF THE MATTERS TO BE DENIED, HE SHALL FILE A REPLY AND WHATEVER HE ALLEGES IN THE REPLY MUST BE UNDER OATH, otherwise the denial made by him is not under oath will operate as an implied admission. You have learned about the so called actionable

Twitter: 1226aponz document if the defendant pleaded an actionable document rule 8 requires that the denial of the genuiness and due execution of an actionable document must be made under oath otherwise such genuiness and due execution of the document shall be deemed admitted and if that is admitted the purpose of the document to support the allegations therein is deemed admitted. So there will be no issue raised as to the docs validity as a defense, so that statement in rule 6 sec 10 about the reply must be understood by you as subject to the exception where the denial must be under oath. Plaintiff cannot make a denial under oath unless he files a reply. So from these exchanges of move between the plaintiff and the def you can readily see, it is for the plaintiff to make that move, so the last pleading in the order of exchanges of this issues is the reply and this is not allowed within the 10 day rule if therefore the plaintiff did not file a reply after 10 days for the filing thereof but he did not file a reply, the case will be scheduled for pre-trial, the rule on pre-trial expressly tells you that it is proper after the filing of the last pleading. Or the period therefore has already expired. The last pleading is the reply, so after this stage the next stage is the pre-trial. You already learned that pre-trial is already mandatory in both in civil cases as well as criminal cases. Notice of pre-trial is necessary but under the revised rules the notice thereof is served to the counsels who in turn is required to give notice to their respective clients, the litigants, the rules before where 2 separate notices one for the parties another one for the counsels have been dispensed with under the revised rules unless the litigant have no lawyer the notice must be given to him directly, otherwise the notice of the pre-trial would have to be served to the counsel respectively who is imposed with the obligation to notify respectively their clients. Now understand a motion from the plaintiff to schedule the case for pre-trial is now necessary. The coc can no longer be expected to calendar a case for pre-trial without motion from the plaintiff who should see to it that the case filed by him is disposed of without unnecessary delay, so if the plaintiff does not file a motion to schedule his complaint for pre-trial and more than reasonable time had already lapsed after the period for filing a reply had already expired the 32 court may simply dismiss the action for failure of the plaintiff to prosecute or what is legally termed as non-suited. The coc will schedule civil action for pretrial which is the duty of the plaintiff, since the party litigants are required to be present to their pre-trial conference aside from their respective counsels any litigant who cannot be present during the scheduled pre-trial must appoint a representative in his behalf and the latter must be properly authorized by a SPA, the SPA should specifically authorized the attorney in fact to enter into amicable settlement stipulations of facts or make admissions without qualifications or limitations otherwise the authority given will be invalid. The court representative must be possessed with the same discretion to do what the party litigant could do, if and when physically present during the pre-trial conference. So if the representative is authorized to enter into an amicable settlement up to a certain amount that authorization rendered to them is invalid, the effect the litigant is absent, the authorization should not bear any qualification nor limitation, or specification what should be within his competence to agree to, what the litigant could do, the representative should also have the same authority to do so, otherwise the representatives authority does not suffice. It is regarded as if the litigant is not represented at all and therefore he may be declared as absent and under this stage if it was the defendant who failed to appear he may be declared in default or if it was the plaintiff who was absent he may be declared non-suited. Under the new rules now the parties are required to file pretrial brief at least 3 days before the scheduled day of pre-trial conference, the rules specifies what are those matters which the pre-trial brief must propose and contain and the failure to allege substantially what is required to be contained in the pre-trial brief may bring about a declaration by the court that there is failure to comply with that requirement so you should memorize what are those matters which have to be reflected in the pre-trial brief otherwise the failure to comply with what is substantially required may bring about a declaration of default or a declaration of non-suit because there is failure to comply because there is a failure to comply with a pre-trial brief. Study these know what is required to be stated there. Because a pre-trial brief to comply

Twitter: 1226aponz with the rules must substantially meet those requirements. July 6, Rem Rev. I want you to understand that what we are taking up is the backbone of the procedure, the other provision may refer only to incidents to the action, may or may not be used in the handling of the case. For example: amendment many cases are decided without making any amendments, the incidents are available to the lawyer when the need to avail of it arises but they are not part of the procedure I dont want this to mar youre understanding of how the procedure goes what we are taking up here is the backbone insofar as civil cases are concerned. When you study criminal procedure you also study it in this manner, so you can clearly observed the distinctions as applied to criminal cases as applied to civil cases. For instance demurrer to the evidence, the distinction between demurrer in a criminal case to demurer in a civil case is quite strict you have to observe it. You may be applying the rules on demurrer on a civil case whereas you are handling a criminal case, so you can better observed these rules if you study it in this manner, because there are stages that they apply specifically but not applicable to a criminal case vice versa. After we have finished the procedure to its rendition of the judgment, we will go to these incidents and after we have covered incidents we will go to the execution of the judgment, in that manner we will learn the procedure in the proper way. Its very important here that you know the sequence this is not identical to substantive law that you have to memorize and memorize, here no, you have to understand it from the very beginning, otherwise you will understand it you have to separate the incidents from the plain procedure. So its not just studying this, for the heck of information you study this because this will involve techniques, because this will involve the actual handling of the case. If you do not know this or are afraid to observe this you will never become a trial lawyer because you have to know this in order to be able to handle a civil case criminal case depending on the procedure you have to observe. You may be reading some rules like the rule on motions or subpoena, the rule on intervention these are mere incidents the lawyer may or may not 33 avail of them. But when the need arises you have that rule to observe because what you will pursue is controlled by the rules. PRE TRIAL IS MANDATORY under our procedural law now both under civil cases and criminal cases but definitely the procedure for pre-trial in civil cases is different from the procedure in criminal cases. For one thing in a criminal case there is no requirement of the parties filing pre-trial brief, in civil cases it is required. And that is so because in a criminal case the accused has the constitutional right to remain silent so he is not be forced to disclose anything which he does not want to disclose. In a civil case pre-trial brief is required and if this is not filed the effect would be default or non-suit. About this pre-trial stage the rule is found on rule 18, the setting of the case for pre-trial requires a motion from the plaintiff, the practice before was for the coc to set the date of the prerial and coc will have to observed when the least pleading is already in, the last pleading is the reply because the last option will be for the plaintiff. Now if the plaintiff does not file a reply then the period within which he should file this must be first be awaited to be filed may before the case may be calendared for pre-trial so 10 days also. Now before the coc should schedule the case for pre-trial under the revised rules a motion from the plaintiff is required therefore if the plaintiff would not file such motion although more than reasonable time had already expired what the court will do is to dismiss the case not set the case for pre-trial that is the duty of the plaintiff. If he does not set the case for pre-trial then the case will be dismissed on the ground of failure to prosecute and that is what you call nonsuit. When the plainitff is non-suited his complaint shall be dismissed and he cannot file anymore this is what you call a dismissal with prejudice he cannot refile this anymore. The counter part of this as far as the defendant is concerned is default, so when it comes to the defendant who fails to comply with what the rules require default, when it comes to the plaintiff non suit. The next point we shall bear in mind, notice of the pre-trial date and time shall be given under the former rules of procedure notice is served to the lawyer and the litigant, so the defense counsel will receive notice of pre-trial the def. will receive notice

Twitter: 1226aponz of pre-trial the same with the plaintiff. Before if only 1 of them is notified no effect, under the revised rules now shall be given to the counsel and it is the duty of the counsel to inform his client about the scheduled date of pre-trial. It is now the duty of the counsel to see to it that his client is present during the pre-trial conference. If on that date the litigant was absent the court will ask the defense counsel did you not invite the defendant ? because the duty of informing the client is now on the lawyer and if the client did not appear the lawyer must do some explanation. If the lawyer is present and the litigant is absent or vice versa, the plaintiff cannot be nonsuited or the defendant cannot be defaulted, what the court will do is simply to impose a fine. To consider the action as a basis of non-suit or as a basis of default both the lawyer and the litigant must be absent. Now if both are required to be present at the pre-trial conference, if the litigant cannot attend a rep. must be authorized by him to attend in his behalf. To this end a spa is necessary, now you notice from rule 18 it is not just a spa that will give authority to the rep or atty in fact to represent the client, you will note from the rule itself, the authority must specifically empower the rep. or atty in fact to enter into amicable settlement stipulations of facts and admissions and jurisprudence is to the effect that the representative or the atty in fact must have the same capacity as the litigant himself to enter into amicable settlement,, stipulations of facts or enter into admission in other words there should be no qualifications. If the rep. is given authority to enter into amicable settlement but the amount is specified, that will invalidate the authority, the effect is as if the absent litigant was not represented at all, what the litigant could do if personally present should be the same authority that the representative shall have, so no limitations. If the litigant wanted a certain limit he should convey it personally to the representative but not to make it appear in writing in the spa. That would render the authority ineffective. This is how strict the rule on pre-trial has become because the purpose of making this mandatory is precisely to compel the parties to observe this stage which is intended to facilitate the disposition of the case. So anything that will defat that purpose is considered against a litigant who brought about such cause that would render the procedure ineffective. For this 34 purpose the pre-trial brief required under this rule specifies what are those matters that must be reflected in the_____ you should memorize them because if there would be subst. non-compliance with what the rule specifies the court may consider a failure of the litigants to comply with what the rules requires, since these matters are categorically specified in the rules there is no reason for any parties to disregard this, the rule will consider a disregard of this as an evasiveness to comply with the rules so the effect non-suit or default. When you see matters in the rules which are enumerated, you know the substance of each enumeration; the rule will not enumerate that if you are not expected to know all of them, you dont have to know it word for word, its enough that you know the substance. You can state it in your own words. Subst. compliance will suffice. If the def or plaintiff is a corp., a juridical person, you know that corp. functions only through the bod, and the bod must act as a board, so there must be a meeting where majority of the board participates although a corporate officer is authorized to represent the corp. in a suit for or against the corp. that may be true under the by-laws and that is true only for the existence of the entity as a corp. but not for litigation purposes although the pres. Among the powers vested in him under the by-laws to represent the corp.to sue and be sued that will not suffice as authority for him to represent the corp. at the pretrial because that authority is for purposes of the business of the corp. not for the purpose of the litigants. So aside from the authorization under the by-laws which is good only for business purposes, there must be a special resolution adopted by the board in a special meeting duly held authorizing a particular person may be an officer of the corp. and the resol. Must specify the authority that is called for under the rules if the authorization was vague or ambiguous the courts may take it as a design to evade what is required by the rules and you will notice when a litigant appears to comply with what the rules requires but the compliance is something that would hint that the that the litigant is trying to be evasive with what the rules requires, the effect is the contrary you will notice that from the rules because that is a matter of punishing the litigants if

Twitter: 1226aponz he will do something purportedly to comply with the rules but you can see that he is trying to circumvent the rules, the penalty will be contrary, admitted, the liability is admitted. You will notice this from the different rules if the rule requires this in the allegation but it was not followed and it was so simple, the effect admission, implied admission and such an admission is a judicial admission and under the rules of evid. if its judicial it cannot be impugned, no amount of evidence can controvert a judicial admission it is conclusive the rule says, unless the court allows the admission to be withdrawn, and it can only be withdrawn through palpable mistake or that it was not made at all. Otherwise the effect is the contrary. So it is not really a wise move for a litigant to try to circumvent what the rules require because the court can treat it as a move to evade what the rules requires and the court can impose sanctions. Now during the pre-trial conference the matters which are set forth in the pre-trial brief will be taken 1 by 1, with the parties stating their stand in respect thereof, so the proceedings necessarily must be recorded the records will show what are those matters which are agreed to by the litigants and what are those matters where they submitted exceptions or qualifications, this are all taken down in the transcript of records after the pre-trial conference the court will issue a pre-trial order. Note that the pre-trial order is issued after the termination of the pre-trial conference hence the pre-trial order is not the order of the trial court setting the case for pretrial, when this was asked in the bar exams in remedial law, this was the answer of the many candidates indicative that they do not understand what a pre-trial order is, they thought that the pretrial order is the order of the court setting the case for pre-trial, whereas under the rules pt order is issued when the pre-trial is already terminated. It is issued after a pre-trial not before the pre-trial. The pre-trial order presides what transpired during the pre-trial conference, what admissions were made by the parties what stipulations of facts were entered into, what exhibits are marked, what exhibits were objected to as to the authenticity thereof, who are the witnesses who will testify or the court have limited the issue no witnesses will testify anymore. 35 The parties resort to modes of discovery preferably that under rule 35 referring to interrogatories to parties, or that under rule 26 referring to request for admissions. The pre-trial order is like this litigant are provided with this through the lawyers so they can check the correctness on what is reflected on the pretrial order. If let us say that in the pre-trial order it stated there exhibit b admitted whereas during the proceedings the exhibit is objected to on the ground of proof of authenticity is not available so the lawyer of the party affected must call the attention of the court that the exhibit was not admitted. Because what were thresh out as shown in the pre-trial order cannot be again be discussed during the trial on the merits, what had been thresh out shall remain unless it is shown that it was made out of palpable mistake or that was not really taken up otherwise the party against whom such ______show if he was not raised any question there he will be bound by what is reflected in the pre-trial order in short the pre-trial order defines the course of actions during the trial for this reason, the lawyer should not enter into trial if he has not yet received a copy of the pre-trial order what is contemplated under this rule is for the lawyer to enter into trial in accordance with what the pretrial order requires, so if the lawyer without the pretrial order enters into trial so during the trial he does not have the guide he has been presenting his case veering away or deviating or departing from the issue defined in the pre-trial order he cannot complain later that during the trial he does not have the pretrial order, and it is stupid for him to enter into trial. If he does not have the pre-trial order he must call the attention of the court that on the date of the trial that he has not yet been served or received the pretrial order then the court will not force him because the rule requires that the lawyer to enter into trial must have with them the pre-trial order already that pre-trial order disclose what the lawyers may take up during the trial on the merits. Those matters which are already thresh out cannot be discussed again during the trial on the merits otherwise the court is authorized to cite the lawyers for contempt. That means the lawyer is deliberately delaying the disposition of the action. The last step in this pre-trial stage is the issuance by the court of the pre-trial order replacing

Twitter: 1226aponz what happened during the pre-trial conference, then the case goes to trial then the lawyer must have with him copy of the pre-trial order because that will guide him on what matters he will yet prove or what matters the other parties have yet to prove outside of that no more. Under the rules now if there is nothing more to take up that will require a trial on the merits no need to adduce evidence or to receive evidence the rule authorizes judgment on the pleadings or a summary judgment. Under the revised rules now this judgment may only be entered by the court if any of the parties may move for such judgment. In short under the revised rules the court on its own cannot just resort to a judgment of the pleadings or a summary judgment it must be asked for by any of the parties. Unlike under the former rules, where the wordings of the rule would show that the court may motu proprio even without a motion from any of the litigants court can simply proceed to the rendition of judgment on the pleadings or to the rendition of the summary judgment. Now you read the rules now its different it must be at the instance of the parties. If the parties are not inclined to have a summary judgment then they submit the case for decision the court will have to analyse what transpired the records of the case. So the date of the trial will have to be fixed if after all trial on the merits is still necessary because there are items which have to be thresh out in the trial on the merits which would have to be presented, the witness would have to be examined. So the next stage will be trial, under the rule on trial, you should note that a motion to postpone because a witness is absent or unavailable that motion must be under oath in the previous rules of court any such motion is not required to be under oath. The rules now make a difference between a ground as unavailability of the witness differently from a ground as absence of a witness observe this these are 2 different grounds now under the revised rules that if the ground was the unavailability of the witness the lawyer of the adverse party may stipulate his willingness to admit what that unavailable witness will disclose if he were present and if he were made to testify and if that is so the case will not be postponed anymore what the witness is intended to testify on may just be admitted by the adverse party without prejudice to his right to cross examine the witness when he is presented in 36 court. No need to postpone the hearing. When it is the lawyer or the litigant who cannot appear then you or the revised rules require that the motion to postpone the case on this ground should also be under oath but the motion must show the materiality and indispensable nature because if the presence of the lawyer can be dispensed with there is no need to postpone the trial. The provisions which are new for the first time under the revised rules is intended to push through with the scheduled trial and if the parties can agree what the matters cannot be presented in court because of the absence of a lawyer or the absence of the witness may then be subject of stipulation already the party will enter into a stipulation with the lawyer of the other party that if the witness would be presented in court he would testify like this, he state there the premises of the testimony and then the adverse party will say, I agree that if that witness is presented he will testify on these matters but I reserved the right to cross examine him on some other matters. If that is so the court will consider as if the witness was presented, there is no need to postpone the case. What will happen is that the court will ask the party presenting the evidence to proceed with another witness all this are intended to expedite the trial of the case. The rules provide for a period during which the case shall be on trial on the 1st yr it was 180 days, 2nd year 120 days, 3rd yr 80 days only all of these are nothing, this may be provided there but this cannot be complied with, its impossible to terminate a case in 80 days even the sc takes years before it could dispose a case. Parties are already frustrated and disgusted. The saying that justice delayed is justice denied is true not only in civil cases but also with criminal cases, some of the witnesses get lost and the case could not push through anymore. That is not controlling merely directory not mandatory. The new rule allows a person prejudiced by a delay to move for the dismissal of matters that may affect the case but this is all addressed to the sound discretion of the court even the rules recognizes that there are reason which cannot be avoided and so the rule considers that they are not included in the computation of the period when the case is under postponement all of these provisions actually are nothing. The courts cannot really comply. As long as the delay is not

Twitter: 1226aponz deliberate the same is acquiesced with the trial court because judges are also tired of listening to the problems of the litigant. Now what is significant in the trial stage is a demurrer to the evidence. A demurrer to the evidence is simply a mtd on the ground that the evidence in chief presented by the plaintiff or in acrim case by the prosec. Is insufficient to warrant further proceedings. This move is in order after the plaintiff or the prosec has completed presenting its evidence in chief like commander in chief and has rested its case in chief. If the evidence at that stage where the plaintiff is supposed to put every evidence that he has to show that he has enough evidence to be entitled to the relief allowed by law he has to present thats why it is called evidence in chief. If the evidence in chief is not sufficient the premise is that there is no need to go to trial, because that evidence which is the principal evidence, the controlling evidence does not entitle the plaintiff for the relief prayed for. That means that the defendant will not present any defense evidence anymore it will just be a waste of time. This is nothing but a motion asking the court to dismiss the case because the evidence is not sufficient under the present rules of court aside from the demurrer to evidence under the present rules of court aside from the demurrer to evidence referring only to the insufficiency of the evidence any other grounds for dismissal may be included in the demurrer so that the court can once and for all pass upon any such ground for dismissal. Now here again you must jot down the points of distinction bet a demurrer to the evidence in civil cases and a demurrer to the evidence in criminal cases. This has been asked in the bar 4x already, so you compare both of them. The incidents and you will see. Demurrer to the evidence in criminal cases is more stringent than demurrer to the evidence in civil cases that should not be it should be the other way around because the accused has in his favour a presumption which is a matter of our fundamental law that he is presumed to be innocent. All opportunities must be given to him to show that he does not deserve to be convicted it is not necessary that he did not commit the crime he may have committed a crime but the demurrer is premised on the ground that the evidence does not meet the 37 moral conviction of proof beyond reasonable doubt, so if the evidence does not establish that standard proof beyond reasonable doubt, its no longer a question of whether the crime was committed or not, its a question of whether the accused is shown to be guilty beyond reasonable doubt. The moment there is doubt acquittal. But in a demurrer to the evidence in crim. cases you will notice the rules are stricter than demurrer to the evidence in civil cases, in civil cases the def. can simply manifest to the court that he would be filing to the demurrer to the evidence instead of presenting defense evidence. The court will then asked the def. how much time you will need? So he will manifest to the court what time he will need and the court will sound off the other party, what do you say? The other party will say, no objection your honor, alright 10 days. But under the rules of crim pro, the accuse or the defense is not allowed, he is required to ask leave of court to file a demurrer otherwise if the accused would file a demurrer without obtaining a prior leave of court if that demurrer would be denied, the case goes already to the rendition of the judgment, the accused cannot present evidence in his defense anymore. So you see how strict it is. This is never true in a civil case. More than that you will recall you must have taken criminal procedure, for the filing a motion for leave to file a demurrer there is a period of not more than 5 days, after the prosecution has rested its case in chief. In a civil action theres no such period and the rule of crim pro you say the word inextendible period that means you cannot extend the 5 day period, within which to ask leave of court to file a demurrer, in the 1st place why ask leave of court? This should be a right of the def as it is a right of the accused. To submit that the evidence is not sufficient to convict him why ask for leave? In a civil case this is not required why require it in a crim case? In a civil action if the def filed a demurrer to the evidence and the tc finds that there is merit in the demurrer, trial court will grants the same and dismiss the complaint, the dismissal is already a disposition of the case on the merits, not interlocutory. Plaintiff can already appeal the dismissal. Now you understand that if the def filed a demurrer and the trial court granted the same, the record will not show any evidence for the def. for the def did not present evidence, the only evidence on record would be the evidence of the

Twitter: 1226aponz plaintiff, so if the plaintiff appeals and the appellate court found that there is enough evidence to grant the plaintiff the relief prayed for the appellate court will just render judgment on the basis of the evidence of the plaintiff, the appellate court will grant the relief prayed for by the plaintiff. In effect the defendant has lost his chance to adduce evidence in his defense. This is the consequence of filing a demurrer. The moment the plaintiff appeals and the appellate court found that there is enough evidence to entitle the plaintiff to the relief prayed for, the appellate court may simply render judgment on the basis of the plaintiffs evidence, do not think that the appellate court will remand the record to the trial court so that the trial court can receive evidence of the def. that is not the procedure when the trial court dismiss the case it cannot again rehear the case just to receive evidence from the def. it is a gamble that the def. had taken, he filed a demurrer instead of presenting defense evidence. If the demurrer is granted well and good at the trial court, but if the plaintiff appeals the appellate court will resolve the case on the basis of evidence alone of the plaintiff, so the appellate court in such a case will decide the matter in favour of the plaintiff, it cannot be in favour of the def. because has no evidence on record. So you understand this. In a criminal case if the court granted the demurrer, the criminal prosecution is ended the case shall be dismissed that dismissal amounts to an acquittal. Unless the dismissal was taken without or in excess of jurisdiction that dismissal will bring about the bar of double jeopardy the accused cannot be prosecuted anew, even if the appellate court may find that there is sufficient evidence against the accused if the trial court already dismiss the case against the accused, no _____trial can be had, this demurrer amounts to an acquittal should the appellate court cannot repute the judgment of the trial court unless it is a question of jurisdiction that was raised. You will readily see how this rule on demurrer may prove beneficial or may prove disadvantageous to the movant. So next thing that would come after the trial is the rendition of the judgment, under the rules of civ pro you have in rule 32 trial by commissioners before this there was another form of trial covered by rule 33 of the rules 38 of civ pro and that is known as trial with assessors, you will not find trial with assessors anymore, the rule has been discontinued not because it is illegal but because it is never resorted to by the lawyers. It has become a surplusage under our rules. Now you must have learned the history of that. Trial by assessors may only be allowed if the parties or any of them filed an application with the court to have the trial conducted with assessors each party to the case will choose his assessors who will sit with the judge from the list of 20 persons reputable for their probity the parties choose the parties will choose the assessors by striking out names alternately. Until only 2 names appear there they will be the one to sit as assessors they will sit beside the judge one at the right the other at the left. They write down their observations during the trial. They cannot interfere in the trial unless the judge will consult them of their opinion on any question raised during the trial, the implication is unpleasant. Lawyers do not avail of this procedure because the judge feels offended they feel like they are not being trusted by the lawyer. Either in point of honesty or legal knowledge. So the judge takes it against the lawyer who applies for this that the lawyer does not trust him. Until the rule was not used at all, except if it is the judge who will recommend assessors due to lack of technical knowledge. Right now there are specialized bodies that will now undertake trial of cases within their expertise. Now what you have is trial with commissioners there are 2 cases where commissioners constitute an essential element of the trial in the special civil action of expropriation you have learned that the 2nd stage of the proceedings is conducted by assessors not more than 3 to determine what is just compensation also in the special civil action of judicial partition 2nd stage involves trial by commissioners, sc had the occasion to pronounce that the appt and parti. Of commissioners in this 2 special civil actions is an essential component of the procedure and the parties cannot stipulate to do away with the commissioners, so in a case of expropriation where the private owner of the land being expropriated to be used as a roadway to be used as a roadway and the govt is expropriating the land of private

Twitter: 1226aponz ownership enter into a stipulation that the value of the land will be so much. And then was signed and submitted to the court, the court then acted on that and a judgement was rendered on the suppose just compensation so the govt became indebted for so much amount, the DBM questioned the validity of the compromise judgment because the rule requires that in expropriation proceedings under the 2nd stage the court should name commissioners not more than 3 to receive evidence as to what amount constitutes just compensation, it cannot be the subject of any stipulations between the parties because that is provided by law, that is part of the rules of procedure, the sc invalidated the compromise agreement in fact the sc admonished the trial judge for not considering that the appt. of commissioners is an essential part of the procedure so it is beyond the parties to enter into stipulations because that is a mechanism provided by law. It is beyond the parties to enter into a stipulation because that is a mechanism provided by law, it is beyond the competence of the parties to strike it out and submit their own stipulation specially so the coa considered the amount agreed upon as just compensation is bloated because the amount considers the price of land in a nearby subdivision which is developed and therefore cannot be the just compensation contemplated under the fundamental law. The just compensation is just the raw value of the land not the value of a developed subdivision so the govt would be paying so much that is why they moved to nullify what was agreed upon by the expropriating agency the bureau of public highways entering into amicable settlement with the owner of the land even though the court gave its blessings to the validity of the compromise agreement, sc said you cannot do away with that, there are 2 such special civil action you will recall this is a component of a special civil action of expropriation and a component of the special civil action of judicial partition. This cannot be stipulated out. So the determinator of just compensation in expropriation proceedings must be undertaken by the commissioners not a mere arrangement between the parties. Generally trial by commissioners can only be had if the parties agree to refer the case or any aspect thereof to commissioners who will receive 39 evidence of the matters referred to them by the court when trial is to be conducted by commissioners the court where the case is filed will brought out what is known as ORDER OF REFERENCE, the order of reference states what matters are the commissioners authorized to receive evidence for. Outside of those matters the commissioners may not receive them. Now 1 thing you will note the commissioners are competent to rule on the admissibility of evidence unless the order of reference issued by the court expressly forbids the comm. form ruling on questions of evidence. If the order is silent the comm is have a right to rule on the admissibility of evidence for the comm. To be denied that authority it must appear expressly in the order of reference that they are not authorize to rule on the admissibility of the evidence, so they are not authorize to rule on the objection of the evidence. if the order is silent that means they are authorized. Under rule 32 there are 3 instances there which you should be familiar with these are the only instances where the comm. Even against the will of the parties maybe designated by the court. To receive evidence of a particular case filed in court, ordinarily the court can only refer a case or any aspect thereof to a comm if the parties have agreed to refer that to the comm. The court alone have no authority to refer any part of the case to comms. It must be with the conformity of the parties. However in the 3 cases mentioned under rule 32 the court even against the objections of the parties can refer the matter to the comms. So this is exceptional being exceptional you should study them very well and you would notice under these 3 matters time is so much involved the matter is time consuming that if the court will not be authorized to refer this to the comms. And it will be the court who will undertake them, many cases will not be heard by the court anymore, for instance you have there examinations of long accounts. Where the result will be the basis only of the judgment or information needed by the court if let us say the action is dissolution of a partnership that had been operating for many years so the partners have agreed to dissolve the same wind up the affairs of the partnership divide the profits thereof so that would call for taking the accounting for the period of 20 yrs, if this would be

Twitter: 1226aponz done by the court itself because the parties object that they be assigned this to the comms. Could you imagine how the judge would be able to determine the results of the operation for 20 yrs. Time consuming, so even against the will of the parties the rules authorizes the court to refer them to comms. Otherwise in any other case the court cannot refer a case or any aspect thereof to comm. Or comms not more than 3 if the parties do not conform to the reference to the comms. But in this 3 cases given even with the objection of the parties a court refer the matter to comms. Because otherwise it is too time consuming. Imperative to know what are these instances. Memorize this. After that judgement, 1 question asked before about trial by comms. Does this not amount to abdication of judicial power therefore unconstitutional? Now this is so because as I said in the order of reference of the case to comms. Does not forbid the comms from passing upon the admissibility of evidence comms have the authority to rule on the admissibility of evidence. So that question what asked on the bar? The ans is still no, whatever the recommendation that the comms may make is still subject to the courts decision to accept that report or reject it entirely or accept it in part and refer the part rejected to other comms. In other words the final say is on the judge. If the judge does not want to honor any of the recommendations the judge may simply make his own its up for the parties to appeal, so it is not really an abdication or surrender of judicial authority by allowing the reception of evidence to be undertaken by comms. Who may not even be lawyers that is because it is the judge who has the final say. Whether to adopt the report or recommendation of the comms or whether the court totally disregard it or admit part of that and disregard the others, the responsibility of the judgement is purely that of the judge. So now comes the judgment after the trial on the merits comes rendition of judgment. You may have learned before that judgment in a civil action is simply rendered not promulgated but judgement in criminal action are not only rendered but furthermore promulgated. What is the difference between the 2? A judgment is rendered by delivering the copy of the judgment already completed by the 40 judge signed by him leaving nothing more to be done by him about the case to the coc for the latter to record the same in the book of judgment. In a civil case it is required only that at the time judgment was rendered the judge must still be a judge. So if the judge completed the judgment in the evening signed it already but the coc was no longer in his office so the judge kept the decision signed by him in his drawer of his table and intending to deliver it to the coc the next day on his way home he died. Will that judgment be binding upon the case, is it a judgment? It has not been handed because it was not delivered to the coc, if the judge delivered that to the coc for recording in the book of judgment but the coc was drunk and he does not have the energy to write it as long as delivered to him judgment was rendered. And if he enters this in the book of judgment 3 days later that judgment is still rendered on the day it was delivered to him even though he did not record it at that time, that recording is only a personal act but as far as the judgment is concerned when the judgment is made public by delivering it to another person the judgement was already rendered. In a criminal case that is not enough you must have learned in criminal procedure that the judgment must be promulgated and the promulgation of the judgment in a criminal case, the reading of the judgment in open court to the accused and thereafter entering the judgment in the criminal docket of that court. So if it was a criminal case the judgement was delivered to the coc. Coc received this recorded this in the criminal docket theb he now choose the date in the calendar where judgment shall be read to the accused in open court for what you call promulgation, you put there Friday, gave notice to the bondsman that the accused is subject to the promulgation of judgment on Friday, before Friday came the judge met an accident he died say he died on a Thursday is the judgment valid? The answer is no, but he judgment was rendered because at that time he was judge why is it no valid because rendition of judgment is not enough in a criminal case, the judgment must be promulgated, and the promulgation is done by reading the judgment in open court to the accused this is a matter that some lawyers do not understand and even the rules court uses this word interchangeably which means to say that one who wrote the rc does not also understand, that is wrong, promulgation is in

Twitter: 1226aponz criminal cases only because that is required by the constitution. The accused must be informed of the case against him that is why there is the arraignment, the promulgation, for it informs whether the court finds you guilty or not. About this rule on judgment you have to know the different nature of judgment, how they are known in civil procedure like judgment by default or compromise judgment or judgment by confession or several judgment under sec 3 of rule 36 distinguish from separate judgment, that is taken form the model code of civ pro in the u.s. One judgment affecting one party is severed from the other cases, the court is authorized if there are several parties the case is already finished in the case with respect to one party the court is allowed to judge the case already but the judgment is not appealable but the whole case must awaited, the counterpart of this is what you call separate judgment, separate judgment is based on plurality of cause of action not plurality of parties. When you say several judgment the reference is plurality of parties, you have also there this so called judgment simperwicio, or judgment non protanct, special judgements under rule 39, judgment for specific acts also under rule 39, these are two diff judgments, special judgments judgment for specific acts they are diff. these so called memorandum judgment also these so called clarificatory judgment you must know the contemplation of these they are all judgment but they are of diff nature. Judgment by confession is of 2 kinds, the so called judgments incognovit actionem asked in the bar, that is a judgment by confession not appealable. Against that you have judgment relicta deficacione also a judgment by confession also not appealable. July 25, 2011 An order is generally issued when a resolution is made on a motion filed in court whereas a judgment is rendered after the court has disposed of the case on the merits but there are orders where the merits of the case are disposed of but the judgment was brought about by motion, what the court issues is an order not a judgment, for instance if a motion for judgment on the pleading is filed and the court finding that there is no issue raised anymore, court may render judgment on the pleadings, now since it is upon mere motion what the court will issue is an 41 order not a judgment but the substance of the order is a judgment, because it disposes of the case on the merits. Now this is important for your purpose in availing of the remedies against the judgment because you have to do this within the period for appeal you cannot allow the period to lapse otherwise the judgment will become final and executory whereas if it were an order generally it is interlocutory something has yet to be done by the court so you cannot appeal the order unless it is a final order resolving a motion for new trial or motion for reconsideration but ordinarily an order issued in a civil case is only interlocutory it only disposes of incidents may be raised in the course of the trial. So you have to know the difference between an order and a judgment because it is not the caption given that will control but it is the content. A summary judgment is availed of on mere motion so if the court finds merit in the motion for summary judgment the court issues an order and in that order the merits of the case is disposed of so it is a judgment. In civil cases judgments are merely rendered they are not promulgated on the other hand in criminal cases judgments are not only rendered but moreover promulgated, the promulgation is done in open court. The rendition of the judgment takes place when the judge has completed and signed the judgment disposing of the merits of the case entirely such that nothing is left to be done by the court. The judgment is rendered by transmitting the original of the judgment to the coc for recording in the book of judgment, whether the coc record the judgment on the day he received it or some other day is no longer material what is material is that the court has completed the judgment handed the judgment and already released in to the coc, the day when the coc received for recording it even if he did not actually recorded it yet, he is waiting to record that the next day on the day it was already transmitted to him the judgment is rendered. In a civil case the period for appeal begins when notice of the judgment is already received by the party since the parties may received notice of the judgment differently because they may not be residing in the same locality you get it that the rendition of the judgment may be earlier in the case of one party and later in the case of the other party

Twitter: 1226aponz because the notice of judgment is served differently and you count the period for appeal from the time notice of judgment is received. However if the litigants after receiving notice of judgment filed a motion for reconsideration or a motion for new trial the period for appeal is not to be reckoned from the date the litigant receive the notice of judgment instead the period for appeal would have to be reckoned from the date the litigant received a notice of denial of the motion for reconsideration or of the motion for new trial, this is because of the ruling of the supreme court in neypes vs c.a. bringing about the so called fresh period rule. So you will only reckon it from the notice of judgment if no motion for reconsideration or motion for new trial was filed otherwise you will reckon the period for appeal not from the date the notice of judgment was received but from the date the notice of denial of the motion for reconsideration of judgment or motion for new trial has been received In a criminal case judgment is not only rendered but moreover promulgated. The promulgation of judgment is done by scheduling the date thereof where the accused and his counsel appears in court and the judgment is read to him and after it has been made known o him copy thereof is given to him period of appeal may then commence to run after the promulgation of that judgment. Promulgation requires in a criminal case that it be done in open court in the presence of the accused himself unless the crime is only a light offense in which case the accused may be absent only his counsel or a representative of the accused will be present to hear the promulgation of the sentence. In a case judgment come in different terminologies these terms in making reference to judgments is important because they signify the nature of a judgment for example you say that is a judgment upon compromise one thing you will get from that is that the judgment is not appealable, this judgment by the court judgment which is a judgment rendered only on the evidence of the plaintiff because the defendant has been declared in default so he was not able to file his answer and therefore he cannot possibly file his defense there is no answer. That is why it is important that you_____this in the terminology in which they come, the moment you say 42 it is a judgment by default it suggests one case the defendant legally has no answer the judgment is based only on the evidence presented on the basis of the plaintiffs complaint, why allegation presupposes the situation the so called judgment on compromise, you have the so called judgment upon confession the same also signifies that the judgment is not appealable because it is based on the confession of the defendant, the procedural terms is known in 2 ways as a judgment in cognovit actionem and judgment in relicta verificationem. It is a judgment in cognovit actionem if from the very beginning the defendant did not try to resist the plainiffs claim instead the def. merely moved for some conciliation or for some concession but the fact is he recognizes the claim of the plainiffs against him. On the other hand in a judgment in relicta verificationem the def from the very beginning contested the plaintiffs claim but in the course of the trial he found it, futile to continue resisting the judgment of the case so even in the course of the trial _____informed the court that he is not contesting the plaintiffs claim anymore and s submits to a judgment against him but he asks again for some concessions. Now if the judgment entered on the basis of the plaintiffs admission of the plaintiffs claim against him the same cannot be appealed the defendant is either way estopped from appealing the judgment since he himself admitted the validity of the plaintiffs claim. Now you also have the so called several judgment under rule 36, taken from common law and the nature of the judgment is one where there are several parties involved the judgment is rendered on the claim against different parties if the claim can be separated from the others so while the case as to the others are continuing the court is allowed to render judgment insofar as those other parties are concerned against whom the claims are already established. The court avoids a judgement that will involve all the others without any specification as to what is adjudge against each of them but in law it is regarded as one judgment thats why you will notice even though judgment has been rendered while the others are still undergoing trial no appeal can be taken because the appeal must be on the whole case unless the court figured out that the other cases will take some time, so to allow the waiting of the other cases will delay the disposition of the other case, the court may allow these other cases

Twitter: 1226aponz to appeal but if the court does not want the appeal then that will__________the case. Against this you have separate judgment, separate judgment is based on plurality of cause of action while several judgment is based on plurality of defendants. So it may be only 1 plaintiff 1 def but there are several causes of action between them so as soon as a cause of action is already disposed off, the court may move on to another cause of action, the court may not keep the disposition of one cause of action and the court may already render a judgment on that cause of action so that judgment there, is a separate judgment but also it is not appealable unless the court will allow that it be appealed without waiting for the other judgment, now you also have the so called Simperjuicio Judgment or literally translated it means without prejudice, in the book of justice paras he equate simperjuicio wiith a dismissal of the complaint without prejudice, such is not a judgment it does not dispose of the case on the merits unless it is covered by the 2 dismissal where a 2bd dismissal will bar a refilling the 2nd dismissal will already amount to adjudication on the merits of the case. So a dismissal simperjuicio. Is not really a judgment simperjuicio. A judgment simperjuicio is one where the judge simply dictates the dispositive portion of the judgment leaving the writing of the body of the judgment later on that is why simperjuicio referring to the writing of the body of the judgment later on but the dispositive portion is rendered without prejudice to the writing of the body of the decision at some later date but as long as that judgment is not completed it is no judgment at all, under the RC a judgment must reflect the findings of facts, the law applicable the cases or jurisprudence that will apply, so as long as it is like that it is not a judgment, it is only a mere disposition of the case but it is not valid as a judgment because it does not comply with what the rules of court requires of a judgment. So generally judgment simperjuicio is no judgment at all and therefore not valid as a judgment. Then you have the so called judgment non protanct, a judgment now for then, this refers to a case where the case has been completely disposed off at some earlier date but later it was found out that there are aspects which are actually disposed off but not reflected in the judgment that was rendered, so the court may allow the party in whose favour the judgment was rendered to present evidence to show 43 that the particular aspects of the case that was committed was actually taken up during the previous trial thereof and therefore it must be reflected in the judgment but was not reflected in the judgment. Now if the court finds that it is really taken up and that should be part of the judgment then the court may allow that it be entered and be made part of the judgment, that judgment is what you call judgment non protanct. The example I gave before ex. A large tract of land which the subd. Developer offered to buy on an amortization basis so that he could sell this to wiling buyers even before he has the developed the whole land area as long as he has developed some of the land already after the deed of sale was signed between the owner of the same and the subdivision developer, the developer started subdividing the area into lots then blocks specific measurement there are roads there are gutters within the land and to facilitate the selling thereof as residential lots the developer had to have each portion titled the mother title therefore had to be cancelled each one has to be covered by TCT if the whole parcel of land let us say brought about 111 titles so ____this covering the whole parcel of land and because the subdivision developer was not able to keep up with the amortization , whereas he is already selling a land the owner filed an action for the rescission of the sale before the whole land could be disposed of by 3rd party and he will not be able to recover anymore assuming that he succeeded in rescinding the sale the land will be restituted to him but there is no more title the mother title is cancelled so what will be restituted to him are the tct covering the residential lots as partitioned by this fellow so there will 111 cert. of title and this will have to be copied in the judgment, the judgment rendered in favour of the owner of the land will ____that the following titles are restored out of those certificates of title 1 cert of title was omitted. When you found it only 110 it should be 111 he only notice that there is 1 titile not mentioned in the judgment somebody came and wanted to buy the land so he looked for the cert of title he did not find it so he have to find the title because there is a buyer but he cannot produce the title, so he applied to the court and the court realized that the whole parcel of land was restored since theres just that part of that land then it must be restored to him also. A judgment will be

Twitter: 1226aponz rendered to that effect, that is a judgment non protanct it is valid but the record only failed to show what took place then, so the records have to be completed for now. There is also the so called clarificatory judgment the significance of this is when the date of finality of the judgment commences to run whether it is to run from the date the original notice of judgment was received or from the date notice of the clarification of that judgment was received if the clarification affects the substance of the dispute that was the subject of the judgment the clarificatory judgment is an entirely a different judgment than the one that was clarified, so the effect is that a new judgment has been rendered, the date of finality will begin at the time that the substantial correction was made. So that means it will accrue later. The matter becomes an issue if it is on the matter of appeal filed by the losing party, if they computed the period of appeal starting from the date the clarification was made whereas the other one contend that the period for appeal already lapsed because he is reckoning the period for appeal from the original judgment that was corrected to determine whose contention is correct, you have to look into the clarification made, if the clarification made is something that can be regarded only as a matter of form then the original judgment still stands. Period of finality will be reckoned from the time that judgment was notice of that judgment was given because the clarification is nothing but only to make the judgment more categorical or specific without changing the substance of the judgment but if the clarification change the substance of the subject of the judgment then it would amount to a new judgment period for appeal will commence to run on the date the judgment as clarified have notice thereof until receipt. It is past to whether period of finality has already set in or period of finality has not yet set in. There is also this so called memorandum judgment, this is one of the later term used by the sc because this was questioned when the litigants in a case, appeals judgment rendered by a LC, the expectation of the appellant where the case has been reviewed by the appellate court and that is what he is paying for, a docket fee for appea,l sc in a matter of memorandum judgment made it clear there is no law 44 that declares that a memorandum judgment is not valid. A memorandum judgment is one which an appellate court rendered on a judgment rendered by LC, maintaining the validity of the judgment rendered by the TC if the appellate court merely made memorandum of the statements made by the T.C. in disposing the merits of the case, the appellate court may agree to that findings by the trial court, if the totality of the judgment where lifted portion by portion from what the trial court had entered without any analysis made by the appellate court why the conclusion reached by the tc is found incorrect in effect the appellate court did not exert effort to rebuke the soundness of the judgment rendered by the tc, that means that the appellant paid a docket fee which after all the appellate court did not render, so the high court said in that case, the judgment in the appellate court which was simply an adaptation of the judgment made by the TC will be null and void because the appellant did not get the benefit of the review for which it had paid the appellate court the docket fee the implication is that the appellate court cheated the appellant by simply copying the findings of the trial court without adding anything to it to explain or clarify the points assigned as errors of the appellant he just copied portions of that without explaining the assignment of errors raised. That means the appellate court did not really analyse or review the issue raised on appeal. That would render therefore the receipt of the docket fee as ______the appellant was practically made to pay something that was not rendered. The SC said if the memorandum judgment contains an analysis of the appellate court of why the observation made by the tc, the findings of facts the reference to the provisions of law and the findings of facts, cited are correct then that means the appellate court did review the materials points assigned by the appellant after all the judgment is valid.it is only when the supposed judgment of the appellate court does not show efforts on the part of the appellate court to explain why the findings of facts rendered by the tc is correct, that the appellant practically deceived and deprived of the docket fee that was paid. So the judgment rendered by the appellate court which is in the nature of the memorandum judgment is not verified otherwise it is valid there is no law declaring it as invalid. This is what is referred to under that

Twitter: 1226aponz memorandum judgment. A memorandum is made of the judgement rendered by the trial court. A Judgment in a civil case becomes final and executory after the lapse of the period of appeal and no further remedy is availed of after the judgment has become final and executory, judgment in a civil case still admits of this remedies even after it has become final and executory because these are allowed under the rules of civ. Procedure namely: Pet for relief from judgement under rule 38 of the rules of civ. Pro Pet to annul the judgement under rule 47 of the rules of civ pro. Now you take note under the revised rules now the pet for relief from judgment or order is now required to be filed with the same court who rendered the judgment of the order being questioned, so if the judgment questioned in a pet for relief was rendered by a metropolitan trial court or a Mun. Trial Court, the pet for relief from judgment must be filed with the same court which rendered the judgment being questioned. This was not the rule before under the former rules of procedure if the judgment was rendered by the mun. trial court or metropolitan trial court, a pet for relief thereof will be filed with the RTC having jurisdiction over such mun. trial court or Metro. Trial court and that is a more logical or sound rule. The amendment made the rules worst. There is something wrong with the decision made by these lower courts to require now that the one who rendered the judgment will be the one to declare that it is wrong is to ask something which is impossible because that will reflect on the judge, that something wrong was rendered by him but he corrected it. There is no sense and reason in this. (Anecdotes omitted). When they changed the criminal cases subject of preliminary investigation before the rules are clear, if the criminal cases are within the jurisdiction of the collegiate trial court, the RTC, the same must first undergo preliminary investigation and the P.I. may be conducted by judges of the mun trial court or the judges of mun circuit trial courts in those places where there are no mun attorneys, but when there are mun attorneys the PI will be conducted by the mun attorneys. So very simple you know that if it is a case that is cognizable 45 by the rtc it must undergo PI before you file it in the RTC, now to make everything confusing they lower the penalty that even those cases within the jurisdiction of these courts which are to conduct PI has been lowered to be covered by a PI. So what happens? There are mun in the the phils. Where there is only 1 judge, so if that judge will conduct PI and the provincial prosecutor will find that there is a prima facie case_______it will be filed with the same judge because there is only 1 court there. So why lower the penalty to that within the level of the inferior court? They lowered the cases where PIs will be required to those punishable by imprisonment of not less than 4 yrs 2 mos and 1 day, even that 1 day there is childish, it should be round figure, there are policeman who do not write clearly, so youll be debating now on that 1 day. (Stories omitted), so this was the reform of the so called PI lowering the penalty to 4 yrs 2 mos and 1 day whereas the inferior court which used to conduct investigation of cases cognizable by the RTC have jurisdiction up to 6 yrs. ______So portion where imprisonment is not less than 4yrs it will be under PI of the same court who will try the case. That situation was in fact criticize in that case of the hanging judge from Makati before RTC can conduct PI of the cases that were filed with them without the benefit of PI in order to save time the rtc can conduct the PI then and there and so that was the procedure followed before, the judge then was Judge Villaluz, a case for estafa was filed in his court the fellow was arrested by the policeman w/o PI so he ask for PI, called the prosecting fiscal to conduct PI, after that theres a prima facie case, judge set trial for tom., the defense counsel has no chance, he would raise an objection he hasnt even finished the judge will say overruled, if the prosec sustain, lawyer manifested he wants to resign, cited for contempt. So the SC said that the RTC will not conduct PI anymore so all of them were authorized from conducting PI, so this_____ case delayed because if the accused was arrested and the case is ____ in the rtc it will be filed by the arresting officer to avoid arbitrary detention they are allowed to hold the accused only for 6,12,0r 18 hrs before now it is double 12,18 and 36 hrs but the court it was only shown, that was the better rule the rtc should not abuse their authority, allow the prosecuting fiscal to conduct the PI, because of that casewhere the

Twitter: 1226aponz accused cried to the high heavens that he had no chance in that court sc issued a resol. Prohibiting the judges of the Rtc from conducting PI, so the PI is left to the courts of the first level, so when they again pass this sc memorandum lowering the penalty to 4 yrs and 2 mos same evil is again resurrected, so now again they authorized judges of the courts of first level if there is only 1 judge in the municipality and the offended party has wronged in that municipakity he cannot file the case there, he wil have to go to the provincial capital file the case with the provincial prosecutors office and it is located in cities of the province and what remains is injustice he has no money anymore. (Stories Omitted) Back to these remedies against a judgment, the pet for relief from judgment under rule 38 is subject to 2 periods the remedy is available within 60 days after the petitioner learned of the judgment against him but in no case will the pet. Be allowed later than 6 mos. After the entry of that judgement, although the 60 days period have been complied with if the 6 mos period has been exceeded, the remedy is not available anymore or vice versa and the sc ruled here that these periods are never extendible. So if the 6 mos pd is exceeded, the pet for relief as a remedy is not available anymore. The other remedy which is the pet to annul the judgment, you will see the wordings of the provision it is available only if the remedy on motion for new trial is not availed of or the pet for relief from judgment is not available or the appeal is not available. In other words these are intended as alternative remedies only, its practically nothing, the remedies are not really properly provided. So you take note of those other remedies: Appeal, pet for relief, motion for new trial, The petitioner can avail of the remedy under rule 47 only if he has no chance to avail of those remedies and the same was not lost because of fault on his part. Nobody has yet availed of that remedy because of the period of time that is stated there, within that period the rule on estoppel will already set in but that is a remedy prescribe under our rules. There are only 2 grounds there. 1) on the basis of extrinsic fraud which can be lost only through prescription, the remedy is available only in the C.A. that is not a remedy within the trial court. As to the other ground. 46 2) That the court has no jurisdiction over the subject matter of the action, Jurisdictional deficiencies renders the proceedings null and void as if no such proceeding was taken of before the court, so prescription does not apply, that is why the rule refers to estoppel or laches. When the judgment in a civil action has become final and executory, the next stage will be the execution of the judgment. Now generally a judgment may be executed only when it had become final and executory but this is only a general rule, a judgment even though not yet final and executory or even though the judgment is on appeal the rules allow that such judgment be executed if the party in whose favour the writ of execution could be issued can show good reasons for the execution of the judgment even before its finality so there is really no limit. About these execution of these judgments which are not yet final and executory or those which are still on appeal, the technicality here is that the good reasons which the party have stated in his motion for execution pending appeal must all be stated in the order granting execution, even where the judgment is not yet final and executory. So if the party who obtained the writ of execution from the court whereas the judgment is not yet final and executory have stated 10 reasons why the judgments will be executed even before it had become final and executory, the court which will grant that execution pending appeal should state in the order granting execution pending appeal all the 10 reasons. The court which will issue the order allowing execution of that judgment which is not yet final or judgment or allowing execution of that judgment still on appeal is authorized to do so provided that all the good reasons stated by the applicant for the writ of execution as stated in his motion. The judge which will issue the order is not authorized to choose which one are the good reason whatever be the reason he has to state it all in the order allowing execution. The reason hinted by the sc on this, when the issuance of the order granting execution pending appeal would be questioned before the higher court the only issue is whether the grant of the execution is proper or not the only basis will be the supposed good reasons that is why the judge who issued the writ of execution should state all the good reasons which that he had

Twitter: 1226aponz relied on in issuing the writ of execution. So the reviewing court can readily say they are not really good reasons REVERSE no trial is necessary. But there are judgments which are immediately executory because they are not appealable, in the same way there are judgments which are appealable but yet immediately executory. So you familiarize yourself with these variations. Judgments which are not appealable that is why they are immediately executory, this is true on judgment upon compromise or a judgment based on confession they are immediately executory because they are not appealable on the other hand there are judgments appealable and yet immediately executory, now you have there judgments in injunction cases, judgments in a complaint for receivership, judgments in a complaint for accounting, judgments in a complaint for support they are immediately executory but at the same time they are appealable so even when they are executed the appeal will go on but while the rule is to that effect, the rule again creates an exception which the judge may grant. The execution of that judgment may be stayed if the party against whom the execution may be had, will file a SUPERSEDAS BOND in the amount fixed by the trial court. You will notice in our RC there are provisions which appear to be prohibitory or obligatory but somewhere in the part of the provisions you will see an exception in the interest of justice, every time you put that there it is a gateway for corruption. Although it is almost a matter of course to execute a judgment that has become final and executory and yet, do not get the idea that the trial courts has no more discretion to deny a motion for issuance for the writ of execution if the judgment is already final and executory thats not correct even when the judgment is final and executory it is never the ministerial duty of the court to issue a writ of execution, this is shown in cases where the situation of the parties have materially changed as it was when the judgment was rendered and when the judgment is about to be executed, so in a case where the defendant was the tenant of the land when the judgment was executed against him for unlawful detainer but somehow he was able to buy the land. So the administrator of the land contend that the writ of execution must first be issued _____and later on 47 the ownership will be transferred to him but the sc ruled why do you have to got that circuitous action he is being ejected from the land because he is a tenant now he is the owner the cause of action disappears so the sc said the issuance of the writ of execution is never a ministerial duty of a court. So that is 1 of the instances that the court may deny issuing a writ of execution where the relative position of the parties in respect of the judgement has materially changed that it would be unjust to allow the execution of the judgment. Now similarly in a case where the judgment obligee, the prevailing party accepted the offer of the judgment obligor that he will amortize the amount of judgment obtained by the prevailing party, so they agree that he will pay so much on a certain date so he had been paying when he had practically paid 80% of the judgment he can no longer pay the rest so he stopped paying, the judgment oblige or the prevailing party there applied for a writ of execution but the writ of execution would have to be on the original amount of the judgment. But since 80% had already been paid only 20% is to be executed you cannot issue a writ of execution for 100% for 80% is no longer indebted to the oblige so the tc refused to issue a writ of exec., the prevailing party filed for a pet. For mandamus and this was denied by the sc, sc said you have yourself to blame because you entered into an agreement that novated the judgment, the novation extinguished the obligation of the losing party under the judgement so you have to rely on collecting the 20%. Now also in a case where the judgment was novated through some other arrangement that when the novation did not turn out so good the prevailing party wanted to reneged from the novation and wanted to go back to the judgment, sc would not allow. In other words if the judgment have been novated the original judgment disappears so to be able to collect on some other judgments the prevailing party has to file a new action / obtain a new judgment because the former judgment has been novated, the court cannot revived that and issue a writ of execution about that. Now with this execution of the judgment, generally a judgment that is final and executory may be executed upon mere motion within a period of 5 years, understand that

Twitter: 1226aponz the prescriptive period of a judgment is 10 yrs. The 10 yrs have lapsed and the judgment has not yet been executed, the judgment obligor cannot be prosecuted further to recover the judgment because the judgment has already prescribed within that 10 yr period where judgment prescribed the first 5 yrs may bring about the execution of the judgment upon mere motion, so a motion may be filed at any time within that 5 yrs span of time, the court will issue the writ of execution unless there is evidence that it would be inequitable to allow the execution of the judgment because of partial satisfaction of the judgment or there was a novation of the judgment that no writ of execution can be issued on the judgment because the judgment has been somewhat novated and you cannot issue a writ of execution partially, it had to be on the whole judgment. The 5 yr period covers up to the time a levy on the property of the judgment obligor has been made, so it is up to the time of levy not up to the time of securing the writ of execution. Now you must have learned that under the new rules, the life of the writ of execution is already 5 yrs unlke before where it has to be renewed after 60 days, that is why currently there is no more alias writ of execution, the writ of execution secured under that motion for the issuance of the writ of execution after the judgment has become final and executory, that writ of execution is good for 5 yrs. The length upon the proper _____obligor can be made on the base of that writ of execution as long as the writ of exec is still good at the time of the levy. What is considered is not the sale on execution of the property levied upon even if the sale on execution was made beyond 5 yrs as long as the execution was made within 5 yrs the execution is still valid so if there was already a levy on the property of the judgment obligor, the ___sheriff had to make the necessary publication of notice of the execution sale even though the sale was done beyond the 5 yr period as long as the levy on the property sold was effected within the 5 yrs period the sale is still valid, if the sale did not push through on the date specified in the notice of the sale, let us say the date when the posted or published conduct of the execution sale turned out to be a holiday, so there is no official act to be done by the sheriff, the sheriff cannot just conduct the sale the next day he 48 will have to post another notice of the sale, he cannot just carry out the execution sale the day after the date which was declared a holiday, the preemption of time does not apply here, so if it is scheduled to be sold, the sale did not proceed today, that notice automatically invalid to be able to sell it tomorrow or the day after tomorrow a new notice will have to be posted. On the other hand let us say notice posted for the execution sale today, the sale began today but the amount due to the judgment obligee has not yet been satisfied, the sheriff has the authority to discontinue the sale today and continue it tomorrow as long as he continued it day to day but if it is not completed today, then say continue it on Saturday that cannot be done it must be continuous, today then tom, day after tom ,they cannot just postpone it prolong it as long as you wanted to conduct the sale, also it is not for the sheriff or for the judgment obligee or the prevailing party to decide which property of the judgment obligor will be sold first, it is the judgment obligor who has the right to say which prop, among his property levied upon may be sold first, so if the judgment obligee say oh you sell this first , you sell the car first, cannot be done the sheriff is commanded to sell first personal property ahead of real prop.but if the judgment obligor would offer to sell the real prop. ahead of personal prop. The sheriff cannot go against the decision of the judgment obligor to sell certain properties ahead of what the law provides otherwise. If the levy was made within 5 yrs, even if the sale made after 5 yrs sale is valid but since there is a balance after the sale done on the 1st levy that balance cannot be satisfied by filing a motion for the issuance of a writ of execution to cover the balance as long as the levy already ended because the 5 yr period for the levy has ended another writ of execution will have to be obtained and the judgment obligee will have to file an action in the court of the first level having jurisdiction over that place where judgment obligor resides in other words not only filing another motion to obtain a writ of execution after the 5 yr period obtaining writ of execution by motion is totally out of the picture it is not valid. An action to satisfy judgment has to be filed, the court where that action has been filed will render again a judgment for the

Twitter: 1226aponz amount that has not been fully paid and when the judgment for that amount is obtained the judgment obligee can then again apply for a writ of execution to satisfy the balance that was not completed so that judgment of the 2nd court or the 2nd hearing where anew judg was obtained will again be valid for execution within a period of 5 yrs, he has to satisfy the balance of this judgement within the period of 5 yrs otherwise after the 5 yr pd he has to file another case to keep the judgment alive now here before a judgment obligee can keep the judgment alive only within a period of 2 yrs, so hes given the opportunity to file another action for the satisfaction of judgment for 2 yrs prd. Currently this period has been removed so a judgment can now be kept alive by filing cases_____ as long as the judgment obligee has the money to pay the docket fee then_________alive if theres nothing to collect anymore whats the use of filing a case, so thats how a judgment is executed. As to the levy you understand that if the levy would involve destruction of property that destruction cannot be done without a special order from the court which rendered the judgment to resort to a destruction of the prop to satisfy the judgment it does not follow that the court where there is a judgment that the sheriff can already do everything to effect the satisfaction of the judgment if there is any ____to destroy a special order from the court is necessary to effect a destruction the proceedings require a hearing where the court will give the judgment obligor an opportunity by himself to remove it, if they will not able to remove it then the judgment obligee to his own men may remove it when authorized already by the court, another problem that may crop up in the execution of the judgment prop. Which is not really the property of the judgment debtor has been levied upon to be sold at public auction at execution sales the rules allow the owner of the property to file an affidavit of adverse claim and file this in the sheriff, the rules then requires the sheriff to make the judgment obligee to put up a bond the sheriff is given that authority to require the judgment obligee to post bond that will answer for damages in the event that the sheriff will push through with the execution and it turned out later on that the property is not really that of the judgment debtor but of the third party 49 claimant the execution is a _______ now if the judgement obligee posted a bond that to keep the sheriif go ahead with the exec sale the sheriff can hold on to the property levied upon because the judgment obligee already posted the bond to answer for damages in the event if it turns out that the prop.really belong to the 3rd party claimant so if the sheriff proceeds with the sale of things if it turns out that it is not the prop of the judgment obligor the sheriff will answer for that but because of the bond the bond will answer for the sale now bear in mind that the judgment of the 3rd party claimant whose prop. Was levied upon and ran after, the bond only remain a period of 120 days from the time it was posted after that the lien on the bond is lost the 3rd party claimant can still ran after the judgment obligee for having sold the prop. Which is not really the prop.of the judgment debtor but he can only ran in general against the prop. Of the judgment debtor the bond is released after 120 days that he will not prove his lien on the bond. So that 120 days has been subject of bar problems before what the lien on the bond remain and the case is terminated the lien is good for only 120 days so within that 120 days period the 3rd party claimant should already file an application with the court whose judgment is being executed to allow him to prove the damages he suffered then the trial court will give him the opportunity to adduce evidences to the extent of the damages suffered by him. in other words whatever damages suffered by the 3rd party claimant while the case is still in the trial court must be established by him in the trial court so that the judgment of the trial court will include the damages suffered by the 3rd party claimant if that 3rd party claimant did not established his claim for damages in the trial court and when the case is already elevated on appeal he tried to prove this before the appellate court it is too late already, note from the rules that he can only recover the damages suffered by him when the case is before the appellate court, damages incurred by him when the case is still in the trial court cannot be recovered by him in the appellate court, so you see there the technical aspect of this, now where a judgment debtor or 3rd party claimant have to be brought to court for examination the rules allow this, the judgment obligee will apply to the court which

Twitter: 1226aponz rendered the judgment to have the judgment of the said party claimant to appear in court to be examined the question about the property which___________whereas the sheriff levied on that property because of the report that property is the property of the judgment debtor. The persons who are suspected of holding properties of the judgment debtor may be examined so also the judgment debtor may be examined if he appears to be without any property and yet he is living comfortably and asked be examined where did you get this______that examination is a standard procedure of lawyers to be able to collect but the drawback there, the examination can only be done within the city or province where the person to be examined resides he cannot be examined in any court outside of the city or province where he resides that means you have to file another action, if the action is in manila, he is residing in las pinas the examinee where he is getting his means of livelihood you cannot do it in court in manila which rendered the judgment. You have to file another in the court in las pinas because he is residing there. You read that in the provision of the law, so that again defeated the purpose of the rules because if he is residing in the province he deputy sheriff you cannot examine him except in the province where he resides so that is a useless rule thats why it has not been implemented. Now you should know the effect of the judgment rendered by a foreign court. The present rules allow a judgment rendered by a foreign court to be impugned in a proceeding filed in a court in the phils. Either on the ground of fraud, lack of jurisdiction, collusion among the parties. The enforceability of that foreign judgment rendered by a foreign court may be attacked here. Actually the foreign judgment cannot be simply executed in the phils. An action will have to be filed with a phil court to be able to execute judgment of foreign court in the phils in reality it is the judgment of the phil courts that will be executed to satisfy the judgment rendered by the foreign court, it is not the judgment that the sheriff will carry out here. Phil courts must acquire jurisdiction over the prop. Situated in the phils. So that provision there that if the judgment affect a specific property the judgment shall be presumptive evidence of the ownership over that 50 property. That is only a presumption but as far as levying on the properties concerned, the levy cannot be on the basis of the judgment of the foreign court, an action will have to be filed on the phil court, it will the judgment of the phil. Court that will executed to satisfy the judgment of the foreign court. The court approving the judgment of the foreign court the parties in the case with the phil courts may prove that the judgment is null and void for lack of jurisdiction over the subject matter any defense to invalidate the judgment of the foreign court from being carried out in the phils may be raised. End of Civ pro. August 1 Death of a defendant . In a case pending in court under the former rule when a party to an ordinary civil action dies the action is dismissed to be prosecuted before a probate court, this is more demanding if it was the defendant who died because the claim in the ordinary civil action will be enforced against the estate of the deceased and that can only be done through the probate court now currently under the revised rules the ordinary civil actions will continue even though it was the defendant who is answerable for the claim who died. The action shall continue up to finality of the judgment therein that means it will include appeal the obvious purpose is to do away with the hearing before the probate court where the claim against the estate will still be proven instead if judgment was rendered in the civil action and that judgment had already become final and executory the judgement will simply be filed in the probate court as a claim against the estate. There will be no more hearing to establish the validity of the claim, the fact that a judgment was rendered by a court also it is already taken as a hearing necessary to establish the amount and the validity of the claim so the probate court will only schedule the claim for payment when all other claims have been settled. The problem here under the special proceedings involving the settlement of estates of deceased persons period for settlement is limited to 2 years although this is renewable or extendible and a civil action specially nowadays cannot be terminated in 2 yrs. So if the civil action is to proceed by the time final judgment will be arrived at the settlement of the estate may have already been terminated. So in such

Twitter: 1226aponz a case under rule 86 of the rules of spec pro a money claim against the estate should be filed whether due or contingent so this will be a contingent claim while the civil action still continues, so as to require the executors or administrators of the estate to set aside an amount that would be needed to pay of the claim against the deceased defendant. Otherwise by the time the judgment in the ordinary civil action is rendered the estate may have been closed already. So the claim cannot be filed against any of the other heirs. There must be a reservation out of the residue of the estate. This renders the procedure to be simple but really cumbersome because of the possibility that after all the plaintiff in the ordinary civil action although he may have won a judgment in his favour will not be able to realize from the judgment after all the estate is already settled. So the lawyer handling the case must see to it that a claim is filed even on a contingent basis this is covered by rule 86. Another incidence of importance in a civil action is the so called actionable document this is a common subject of bar problem. Although the document is referred to as actionable document you must be conscious that it includes document on which the defense is _____ it is no limited only to documents on which a casue of action is predicated so an actionable document may be true even to a defendant. The rules provides as to how an actionable document may be pleaded. It must be pleaded but follow must be required otherwise the document will not be regarded as an actionable document but only an evidentiary document, if the document was pleaded as an actionable document you must have noted that the denial of the genuiness and due execution of the document must be made under oath otherwise by way of punishment to the pleader the contrary consequence will be an implied admission. When the pleader did not comply with what the rules require the implication is that the pleader is trying to evade the rules so the contrary sanction is admission. When the genuineness and due execution is impliedly admitted, all issues regarding this matters of genuineness and due execution cannot thereafter be raised anymore but matters but matters of defense and matters of the (court or cause) alien to the due execution and 51 genuineness of the document is not precluded. If the issue is that the document was obtained out of duress the issue is to be pass upon by the court on the required execution and manner of pleading an actionable document there are 2 ways: and this must be complied with : 1. By referring to the substance of the document in the pleading of the party invoking the same. So if he was the plaintiff then it must be referred to in the allegation in the complaint. If he was the defendant then substance of the document must be referred to in the allegations in the answer. At the same time it is required that a copy of the document must be annexed as an exhibit to the pleading filed making the same an integral part thereof. It is not necessary that a certified true copy be annexed because the adverse party has the right to demand the original to be exhibited to him. So he can have a first look at the document. If the pleader would not comply with a demand to view the original of the document the document will not be regarded as an actionable document insofar as the pleader is concerned. It will only be regarded as Evidentiary Document. 2. Is for the pleader to copy the document verbatim in the pleading filed where reference is made to the document. This is feasible if the document is only brief if it is voluminous, it will consume so much of the pages in the pleading. The first one in pleading a document is more practicable.

When the document pleaded is either this and the document appears to be the basis of the plaintiffs cause of action or the basis of the defendants defense that document assumes the nature of an actionable document any denial on the genuineness and due execution thereof must be under oath, otherwise the effect would be implied admission. The admission however can only arise if the adverse party is a party to the document, if he is

Twitter: 1226aponz not involve in the document by whatever means you cannot make the document binding, its a violation of the rules of res inter alios acta, a rule of evidence you cannot bind a party who is not privy to the transaction that is in question. Another matter of importance as an incident of civil action is the manner of amendment this is a mere incident of the action because the action can be ended without any amendment but there may be instances that would call for an amendment of the pleading that was already filed, for this purpose you have to consider whether the amendment is to be made after the defendant has already filed an answer to the complaint or the amendment is to be made before the defendant has filed his answer to the complaint. Now you must have learned procedurally that the issues in an action becomes joined when the defendant already filed his answer. So when the defendant files his answer the plain cannot just make a change because issues are already joined, the issues are____. There you readily understand if it was to be done where no answer has yet been filed the amendment is a matter of right because only the plaintiff has filed his pleading there are no issues raised yet by the defendant but where the defendant has already filed his answer an issue is joined, the answer can only be amended or the plaintiff can only amend his complaint with prior leave of court. The court has the probability that the amendment may change the position assumed by the pleader who wanted to amend for purposes of amendment under rule 10 of the rules on civil procedure, you have learned that it may be by filing an amendatory pleading, a pleading that will amend the original pleading if it was the plaintiff who will make an amendment of his complaint he will do so under this _______ of making an amendment by filing an amended complaint or the amendment may be made through a supplemental pleading. It is important that you know how the amendment is to be turned out. Because the legal consequences are not the same. An amendatory pleading is the proper way of making the amendment if the matter to be brought to the original pleading as an amendment already existed at the time the original pleading was filed only the same was not taken up in the original pleading that was filed. In other words the nature of 52 the amendment would involve a matter that was overlooked or a matter that was forgotten but that matter already exists and should have been taken up in the original pleading but it was not taken up hence if it was the plaintiff he will file an amended complaint. On the other hand if the matter to be brought to the case already or only existed or accrued after the original pleading was already filed, such amendment would call for a supplemental pleading. If it was an amendment by the plaintiff, the plaintiff will not file an amended complaint but a supplemental complaint, if it was the defendants answer, the defendant would file a supplemental answer it is not a matter of terminology, its a matter of substance to be taken up in the amendment. If the amendment would rightly demand an amended pleading, the original pleading filed will be superseded or replaced by the amendatory pleading. So whatever were alleged in the original pleading upon the filing of the amendatory pleading thereto. Shall then be considered as already abandoned and waived as if it was not made before, significant of this let us say the amendment was to be effected by the plaintiff and the amendment is proper for an amendatory complaint. The plaintiff would have to file an amended complaint the legal effect of this the original complaint is superseded, set aside it is the amendatory complaint which will stand. So matters which are alleged in the original complaint which are not reiterated in the amendatory complaint will be deemed already abandoned. Any such allegation thereof made in the original complaint which plaintiff still maintains in the action must be reinstated in the amended complaint otherwise it cannot be taken up during the trial because the original complaint is deemed already superseded. To determine this the matters which are brought to the original pleadings by the amended pleading must be properly identified this is commonly done through underlining or underscoring to indicate the amendment that had been introduced, now those portions which are not underlined or underscored imply that they are made under the original pleading and are reinstated in the amended pleading. Relative to this you must have learned allegations of a party in his pleading constitute a judicial admission on his part on what he had alleged there and you must have learned in evidence that judicial admission are conclusive upon

Twitter: 1226aponz the party making the admission. No amount of evidence can contradict or controvert what has been judicially admitted unless the courts allows the pleader to withdraw the admission by showing that it was not made at all or that it was made out of palpable mistake unless the admission was withdrawn no amount of evidence can overthrow the admission. So if in the original complaint plaintiff alleged that he is claiming indemnity of 50k pesos including actual damages and moral damages but in the amended complaint it is stated there that the damages incurred is 60k pesos and the reference to moral damages did not appear anymore so it would show that the whole damages will be for actual damages during the trial, you will have to adduce evidence to sustain that. If what he was adduced is evidence to sustain what is originally alleged, the evidence cannot be admitted because it is inconsistent with what is alleged. The original amount becomes a judicial admission, he cannot raise an amount higher than that. So this matter of amendment as you should know influences nature of the claim and the evidence require for the pleader to establish his claim not just a matter of making allegations there that would change the original matter. By serving as a consequence on the nature of the action being filed. Sad to observe the present provision of the rc on amendment under rule 10 has been so much liberalized that amendment which before are not allowed because they are inconsistent with the good faith of a litigant now it may be allowed in the interest of justice even though it may have been objected to by the adverse party, even though it may be inconsistent of what was previously alleged, the purpose of the pleading is simply disregarded, the purpose of pleading is to draw the line of litigation between the parties to make it known what position a litigant has adapted in respect of the issue raised. So after the pleader has made known his stand in respect of the subject matter of litigation cannot be allowed to alter his position later on that will be bad faith every time that there is an issue raised by the other party he will change his position that would bring about an endless litigation but now under the so called interest of justice even against the amendment or even against the objection of the adverse party the court may still allow the amendment and actually as observed by many it is 53 not the interest of justice, it is the interest of the justice. There is no reason why you have to change what you have manifested in the pleading. Allowing judge the discretion to allow the exception is opening the doors to corruption. Even in the modes of discovery there exceptions in the interest of justice. The court where the complaint is filed, the plaintiff is supposed to alleged the cause of action in which he claims to be injured by what the defendant did, so if the allegation in the complaint fails to state a cause of action, the court cannot acquire jurisdiction over the case. There is no cause of action, now even though the complaint states no cause of action in the interest of justice the complaint may be amended to alleged a cause of action, so the pleading becomes secondary only whereas the purpose of the pleading precisely to draw the line of litigation bet the parties, the good faith demands that the parties will not be ambivalent in his claim. A litigation is not a game of chance, it is not like this game known as patintero. You have to define it if this was so litigation will be finished in shorter time but if you allow them to be ambivalent thats the time the litigation will be drawn into a long _____litigation. This is the after effect of this provision where the rules have been changed for the worse not for the better. Before where the complaint does not state a cause of action the court should dismiss the case, there is no bargaining now the court made it allowed the plaintiff to amend the complaint so that it will state a cause of action and this is why we have to differentiate bet a right of action and a cause of action the amendment is only true if it is a cause of action but the plaintiff should have a right of action if at the time a complaint was filed plaintiff has yet no right of action because it was filed prematurely no amendment can confer jurisdiction upon the court. If under the fact of the case plaintiffs right of action will accrue December this year he filed a case now defendant filed a motion to quash on the ground that the complaint fails to state a cause of action, there cannot be a cause of action if there is no right of action. So the plaintiff now moved to amend but what will you amend if the right of action will accrue yet in the future and it is basic that the court acquires jurisdiction over an action at the time the complaint is filed, if he has no right of action at the time the complaint is filed, the court cannot acquire jurisdiction over anything. That

Twitter: 1226aponz is why even with this amendment now what the pleader who wants to amend may bring into the complaint is only an allegation concerning this cause of action but this requires that he has already a right of action that means under the law violated he already has a right to sue the other party, so you fall back on what I have discussed with you. The difference between a right of action and a cause of action, so I called your attention under the rule on motion to dismiss, the dismissal is on the ground that the complaint fails to state a cause of action not a right of action, the ground implied that there is a right of action only the allegations in the complaint fails to state a cause of action, so this change in the rule of amendment allowing the amendment to a complaint that fails to state a cause of action must be understood by you to be possible only if the plaintiff has indeed a right of action at the time the complaint is filed there was already a violation under the law of the plaintiffs right by the defendant committing an act violative of the plaintiffs right under the law if there is no law or the right will accrue yet, the action is premature, that cannot be amended even under the relaxed provision under rule 10 of rc. This was subject of a bar question, do not lose sight of the difference bet a right of action and a cause of action. Otherwise your reaction will be wrong. Where the amendment is to bring into the original pleading matters which accrued or arose only after the original pleading was filed, the amendment requires a supplemental pleading, supplemental means addition you add to it hence under the rules leave of court is always required before a supplemental amendment may be made since this amendment will add something to the original complaint, the original pleading is not superseded or suppressed or abandoned it will remain, the supplemental pleading will only be in addition to what was already filed, the addition may change the theory of the case and that is why leave of court is necessary to determine whether the intended amendment may vary the theory of the case. So the amendment may be called amended complaint is the nature is that of that of a supplemental complaint and it was filed without leave of court it has no standing it is only a piece of paper because while the amendment is in the nature of a supplemental pleading before it may gain standing in court it must be with leave or permission 54 by the court to make the amendment. This is the ???? forecast of your understanding this incident of a civil action, the amendment to be made because there are parties out of bad faith would like to make amendment in order to circumvent the estoppel that may bind them to their allegation. Or whether the amendment is proper whether it may be allowed or not you will understand only in the light of this provision you draw a line bet an amendment that calls for an amended pleading from an amendment which calls for a supplemental pleading because if it was an amendment that calls for an amendatory pleading the original pleading collapses/replaced. If it was a supplemental amendment the original pleading stands the supplemental pleading also stands the 2 will be taken together, no replacement and because there is superseding pleading the allegation in the original pleading if to be maintained during the trial must be realleged in the amended pleading otherwise it cannot be taken up anymore it is deemed abandoned. Although this is the effect of the amendment even before under the rules before the amended pleading the original pleading that was amended may be utilized by the adverse party as an evidence of an admission because the allegations there may be invoked by the adverse party as constituting an admission. if let us say in the original complaint plaintiff alleged that the defendant owes him 20k, after the amendment he alleged that the def. owes him 30k the original pleading will be superseded, the amendatory pleading will stand so the amount will be 30k but the adverse party can cite that in the original pleading the amount alleged is only 20k and that constitutes a judicial admission so it cannot be valid unless the pleader or plaintiff would file a motion for leave of court to withdraw the same. Because it is a judicial admission, an admission made in the course of the judicial proceedings and under the rules of evidence you have there a positive provision that judicial admission are conclusive upon the pleader unless allowed by the trial court to be withdrawn because it was not made at all or because it was made out of palpable mistake. The purpose of the rule is to pin down the pleader as to what he had alleged there. Because that is consistent with mistake???? the pleader is not allowed to be changing his position in respect of the

Twitter: 1226aponz subject matter of the action. Under sec 5 rule 10 you have there the so called amendment to conform to the evidence, the present rule has been so much expanded that although the pleading _____doest not allege a claim but during the trial the plaintiffs counsel was able to bring out evidence about a claim which is not alleged in the original complaint if the evidence entered directly because the lawyer of the adverse party was sleeping he did not object once it is on record it will have to stay but if it is not pleaded the court cannot acquire jurisdiction over the same and so the party who succeeded in introducing this into the record must make his pleading conform to the evidence because the allegation in the pleading cannot be overthrown by any amount of evidence since it is a judicial admission so to be able to make the evidence conform to the allegations in the pleading the pleader must withdraw that amend amount to conform to the evidence without amending that, he cannot maintain the amount as proven you may have learned in your study of trial technique that 1 of the grounds of objection during the trial is where the adverse party would be adducing evidence on matters which are not pleaded that means it is not included in the litigation so the party objecting will simply say your honor objection not pleaded that means you have no right to take it up because it not taken up in your pleading before that is always sustained but now it is allowed the court will simply tells the counsel thats your fault because you are sleeping, so when the adverse party raise something which is not pleaded immediately your objection should be raised because through that introduction of evidence the pleading may be later on be amended to conform to the evidence because the evidence is already on record it becomes less discernible that the amendment is allowed in the interest of the justice, because its there on the record court will simply tell the lawyer that its your fault you are sleeping youre not raising an objection. This is the contemplation of that sec 5 of rule 10 amendment to conform to the evidence that is why during the trial the counsel should always be alert.
he leadeth me beside the still waters.

He restoreth my soul: he leadeth me in the paths of righteousness for his name's sake. Yea, though I walk through the valley of the shadow of death, I will fear no evil: for thou art with me; thy rod and thy staff they comfort me.

Criminal Procedure About Criminal Procedure I want you to know the different system of criminal procedure and what particular system obtained in the Philippines. The in inquisitorial system, the accusatorial system, and the mixed system. Know the characteristic of each of these, then know which system obtained in the Philippines. We will go to the rules of procedure governing the prosecution of criminal cases, as in the case of the procedure in civil actions, I made known to you that your idea of these rules would be meaningless unless you ____them to actual happening around you. You will only get the meaning of these rules if you take them as what you have experienced in your daily life where criminality takes place. So well go by these rules in the order they are encountered not in the order they are arranged under the rules of criminal procedure. When a crime is committed either the offender is arrested In Flagrante or the offender manage to escape. Although there is yet no case filed in court, if the offender committed a crime then he was arrested then at this stage the rule on arrest becomes already an issue, the validity of the arrest is in question because whatever evidence may have been seized on the offender will be admissible in evidence only if the seizure was lawfully done, so if the seizure was not lawfully done whatever supposed evidence was seized from the offender will not be admissible in court. There is more problem when an arrest is made under this situation because here there is no warrant of arrest, the arrest is In Flagrante. Now you must know the constitutional guarantee of the right of every citizen to be secure in his person, in his house, his papers and effects against unreasonable search and seizures Gen. Rule an arrest made without a warrant is illegal, so also a seizure made without a warrant generally is illegal. 55

The LORD is my shepherd; I shall not want. He maketh me to lie down in green pastures:

Twitter: 1226aponz The instances where an arrest without a warrant is valid are only exceptions to the rules and this is true also in seizures made without a search warrant you have learned in statutory constructions, that when it is not among the exceptions, only those expressly provided in the rules will be regarded as exceptional to the general rules. So the so called warrantless arrest will be valid should be done strictly according to what the rules provide. Specifically this is governed by sec 5 of rule 113. In the first situation under said section, the warrantless arrest is first : on a crime being committed, or about to be committed, or had just been committed in the presence of the person making the arrest. Initially the word presence was applied to a case where a crime was being committed within seeing distance of the person making the arrest, then this was extended to a situation where commission of a crime cannot be seen because the arresting officer was at a road perpendicular to the road where the crime was committed but he heard the scream of the victim, just the same it was ruled by the high court that the crime was committed in the presence of the person making the arrest, so as long as he had probable cause to arrest the person who he believe based on the facts he had witnessed, committed the crime, the arrest although without a warrant is valid . Then also, in a later case where a ______ of dried marijuana leaves was taken on board a bus travelling from baguio to manila, a narcotic agent who is familiar with the smell of dried marijuana leaves, smelled that in the bus where he was riding the baggage containing the dried marijuana leaves which is a dangerous drugs, so when the bus reached the checkpoint along kennon road, he made known to the officers managing the checkpoint that there was somebody on board the bus who brought on board the same bus, a bag containing dried marijuana leaves a dangerous drugs. Again because the narcotic agent was familiar with the smell of dried marijuana leaves crime was committed within his presence and that was the cause of the search done in the bus. Also an instance where a narcotic agent was suspect that a certain bag contain dried marijuana leaves, he touched his arm there tried to smell it, tried to smell it, he made several testing of the smell 56 and he was positive there was dried marijuana leaves in the bag. He made it known to the officers managing the checkpoint. The arrest was made in the presence of the officer who sensed the possession of the dangerous drugs. So this became the standard that the word presence in the first par of sec 5 of rule 113 covers the instances where the commission of the crime was known to the peace officer through his senses not only within seeing, hearing, smell even within his touching the same. Do not limit the word presence to the law enforcers seeing the crime committed or hearing the commission of the crime anything about the crime which he had perceived to his sensibilities is regarded as committed in his presence and that would serve as probable cause for the officer who examined the cargoe which turned out to be a contraband. In the 2nd situation under sec 5 rule 113, the officer making the arrest was aware of probable cause based on facts and circumstances that a crime has been committed on his own knowledge and the person to be arrested is probably the one who committed the same as far as the crime is concerned, the person making the arrest knew of his personal knowledge, that there is a crime committed and probable cause thereof arose from facts and circumstances which are of his own knowledge leading to the person who committed the crime as far as the fact that a crime has been committed it must be _________ personal _______out of that knowledge probable cause arises out of facts and circumstances ___________that the person to be arrested is the one who committed the crime. In the matter of arrest and detention of a person about to commit a crime, or had just committed a crime or is actually committing a crime, it is standard procedure for the law enforcement to make a body search of the person to be arrested, the search is not for contraband but for possibly concealed weapon which may endanger the safety of the officer making the arrest or the people around him. This is what was referred to in the so called Terry Search rule, that an officer who is doing an arrest is allowed to validate the search the person of the arrested not for contraband but for concealed weapon that he may have that will endanger the arrest not only of the officer who will make the arrest but of the people

Twitter: 1226aponz around him as long as they acted out of probable cause engendered by his experience in the situation our supreme court ruled that such arrest is valid. The probable cause of the warrant issued by the court is different from the probable cause to an officer who will make the search or an arrest. An officer who will make an arrest or a search probable cause is in respect of weapons which may be carried by the person to be arrested to the court is different. Probable cause where the crime has been committed or just about to be committed or has just been committed, so do not confused the probable cause from the viewpoint of an officer making an arrest from the probable cause that the court will determine in issuing a warrant of arrest. Now under the rules of criminal procedure statements made under custodial investigation is inadmissible in evidence unless this was taken with the assistance and presence of a counsel and you have this expressly provided in sec 12 art 3 of the 1987 const. The U.S. Supreme Court made a clear cut distinction where the assistance of a lawyer is essential where the situation where the assistance of a lawyer is not really essential where a person is under investigation not as one involved in the commission of a crime but as one who may have knowledge about the commission of the crime, the investigation is regarded as merely investigatory in nature, the person questioned is only being questioned to shed light about the crime allegedly committed under this situation the right to counsel does not obtain. This was the so called Escobedo Rule. In fact this was invoked in the cases brought about during the martial law regime of the then 1973 const. These focuses on the right to counsel of the person being interrogated by law enforcers, it does not mean that all _____ being questioned by law enforcers must be assisted by counsel, in this case of Escubido vs the State of Illinois, the Federal Supreme Court of the U.S. made distinctions where the presence and assistance of a lawyer is essential for the admissions in evidence of the statement obtained from a person, regarding the commission of a crime, unfortunately our Supreme Court during the Martial Law period made a ruling that Escobedo doctrine has no application to us because our const. then the 1973 const. does not provide the basis of this rule, under 57 this rule a distinction is made on the nature of the interrogation conducted by law enforcers that if the interrogation was investigatory only for the person being questioned to shed light on the situation under investigation, the right to counsel does not obtain but when the interrogation focuses on the person being asked as a suspect involved in a crime the right to counsel already obtains, in other words you have to discern what kind of investigation being, it does not mean that just because the person is under investigation by the law enforcers that he has a right to counsel and without a counsel whatever you will say will not be admitted in evidence that is a wrong concept. In this case of escubido vs state of Illinois the subject was charged with manslaughter, he was arrested ________ when he was brought to the police he requested that he be allowed to make one call to his girl but the police officer in the precinct denied his request stating that at that level of the investigation assistance of counsel is not necessary because the investigation is precisely to determine whether a crimes was committed or not, the right to counsel according to the police man would inure only if the case is already filed against the person interrogated, the right to counsel is needed when the case is in court but the lawyer of escobedo contended otherwise that there is more importance to require the assistance of a lawyer in interrogation conducted by law enforcers that _____ a trial in court because in court ______ methods are no longer possible whereas in police investigations 3rd degree methods and manhandling of the person under investigation is often committed by law enforcers, there is more reason that lawyers assists persons under police investigations. US Supreme Court then made a demarcation that if the person invited for questioning is only made to shed light on the commission of the crime, the nature of the investigation is simply investigatory the right to counsel does not apply there but once the trend of the investigation focuses on the subject as a participant in the crime involved the interrogation becomes accusatory, the right to counsel already obtain here. If at the beginning the interrogation was simply on the subject to shed light on the circumstances involving the commission of the crime the right to counsel does not obtain yet but if in the process of the questioning questions asked focuses

Twitter: 1226aponz on the subject being questioned as they involved in the commission of a crime, the officer conducting the interrogation will stop and inform the person under interrogation of his constitutional rights specially the right to be assisted by counsel against selfincrimination, because in such a case when the questions asked already focused on the person investigated as a suspect in the commission of a crime the interrogation becomes accusatory the right to counsel already attaches to the person under interrogation. Our Supreme Court have adapted this as a criteria in determining whether the right to counsel has been violated or not you consider the nature of the question being asked. So in our jurisprudence there are many instances where a person is made to join a police line up where witnesses who were on the other side of the room separated by a 1 way mirror is looking at the persons made to join in the line up and they point at the person who they saw at the scene of the crime. Now here there are many instances where a person is made to join a police line up but he would have that he be given the opportunity to consult with his lawyer but the lawyer _______ do not wanted ______eventually they were pointed to by witnesses and they were ______ among the accused, the identification in police line up was questioned as a violation of the constitutional right of the person identified because his right to counsel was denied to him. Supreme Court in these array of cases ruled that at this stage purpose of a police line up is precisely to determine who may be involved in the commission of a crime it does not focus on any particular person as the one who committed the crime. So the identification is only part of the investigation not knowing who among them is involved in the commission of the crime hence it is only part of the investigatory process. The right to counsel does not adhere here. So you have to draw the distinction however there is 1 case there, the case was already filed in court a surprise witness was located and the accused was made to join a police line up with this surprise witness on the other side of the room to view the accused if he really was the one seen by the surprise witness at the scene of the crime and the surprise witness identified him, Supreme Court rejected the identification as part of 58 the evidence by the prosecution because it was done in violation of the right of the accused against selfincrimination. Since it was carried out without the assistance of a counsel, the case had already been filed in court, the person identified is already accused of the crime, he has a lawyer so whatever may be done that will involve him in the commission of the crime must be with the assistance of his lawyer because the investigation is already accusatory, so it is different when the person made to join the police line-up is already charged in court that means he is already accused of the crime invoked than 1 there is no case yet filed in court and the person required to join the police line-up is not yet accused of any crime such causes is regarded by our court merely as investigatory it may or it may not bring about the identification of a person. But when the person made to join the police line up is in fact already accused in court, there is no way to that is already considered a suspect in the commission of a crime that cannot be done without notice to his lawyer and giving his lawyer the opportunity to speak for his right, this is the so called Escobedo rule. But at that time it was the 193 const. that was in force and under the 1973 const., there is no provision about the requirement of being assisted by a lawyer when the case is under police investigation. This escobedo ruling was followed by the so called Miranda warning, you must have heard about this Miranda was similarly charged for manslaughter he was brought to the police prison in Arizona he did not asked the police officers in the prison to allow him to make 1 call to his lawyer instead he was interrogated after the interrogation the policeman who conducted the interrogation assessed the statements he gave and they considered the statements enough to implicate him in the commission of the killings. When Miranda raised the same point raised by escubedo, the U.S. Atty.General raised that in the case of Miranda he has already waived the assistance of a lawyer when he did not invoke his right to the same so he cannot now be made to invoke the same issue raised by escubido because he did not request to call his lawyer the same way escubido did but the young lawyer of Miranda argued that a waiver of any right presupposes that the subject who is waiving the right

Twitter: 1226aponz is aware that he has that right, one cannot be considered to have waived the right when in the first place he does not even know that he has that right. The U.S. Supreme court gave Miranda the benefit of the doubt, that a simple did not know that under the Constitution he has the right against selfincrimination and that is what commands the assistance of a lawyer. So in the US Supreme Court in the case of Miranda vs the State of Arizona require any arresting officer to _______ any person considered to have participation in any crime to forewarn him 1st that he has a right to remain silent and any statement he will give may be used in evidence against him in any court of law. 2nd that he has a right to be assisted by a counsel of his choice and if he could not afford the services of a counsel the govt will give him one. Since the US Supreme Court ruled that it is incumbent upon the peace officers taking custody of the person believed to have committed a crime, it became incumbent upon them to inform the person to be arrested of his constitutional rights that is why this is known as warnings, the Miranda warning. It is not for the person arrested to invoke this right because he may not know that he has this right under the constitution rather it is upon the peace officers taking custody of persons to inform you of rights, that you have a right to remain silent, to warn you of any statement you may give may be used as evidence against you in a court of law, that you have a right to be assisted by a counsel of your choice, that if you cannot afford the services of the counsel the govt will give you. This became known as the Miranda Warnings, and this was invoked in that case of Miranda vs. The state of Arizona. Art 12 of the 1987 Const. under sec 12 among the Bill of rights __________ no admission of confession may be received in evidence not only in a criminal case but even in the administrative proceedings unless it was made with the assistance of a counsel and our rules of procedure follow this. Under sec 6 of rule 112 of rules on preliminary investigation a waiver of art 125 of the RPC is stated there, it is required that this be made in writing with the assistance and presence of a lawyer that is 59 predicated in the Miranda warnings. Relative to this our own lawmakers enacted a law R.A. 7438, I want you to read this, this law imposes upon law enforcers certain mandatory duties to inform and respect the rights of persons under custodial interrogations who should be allowed to be present for any questioning asked upon a person not only those who are arrested but even those who are supposedly invited by these peace officers as long as long as there will be questions that will be asked of them, there must be a lawyer, a relative or even a priest present during the questioning otherwise what is asked will not be admissible in evidence now even if the statement obtained are all exculpatory favourable to the declarant as long as it was obtained in violation of what is required by the fundamental law the same is not admissible in evidence in other words that statement is not admissible in evidence because it contains some said incriminatory declaration even though the statements obtained are all favourable to the declarant as long as it was obtained without the assistance of lawyer the same will not be admitted in evidence because it will violate the fundamental law. Now you have to get it clear that these injunctions obtain only if a person is already under custody it does not cover only ______ where a person may have admitted the commission of a crime custodial interrogation presupposes that the subject of the investigation is already being asked questions for ____ to answer so if the person who made the statement does not under any questioning when he voluntarily ________may be the prohibition on the constitution does not apply, the statement even though incriminatory ______________ because he is not under custodial investigation when he made the admission so you get that clear so in a case where there was trouble in the neighbourhood between spouses the neighbours summons police assistance the moment the moment patrol car arrived ________newspaper reporters as soon as the police patrol car arrived there the man came out of the shanty holding a bolo bloodied with his shirt with stains of blood he spontaneously declared for ______ to kill her because he violated _____trust ( incomprehensible) the policeman does not even know what is happening they just get out of the mobile car to proceed to the house pointed to by the

Twitter: 1226aponz neighbors as the site of some trouble and this man came out already holding a bolo handing it to the law enforcers the newspaper men who went with the police officers testified in court about what was uttered by this man the accused and there was behement objections from the defense counsel that the statements having been made without the assistance of a counsel is inadmissible in evidence, Supreme Court categorically pointed out that this is true only if the declarant is already under custodial investigation and that means question is being asked if you made the statement without a question being asked and that is not covered by this provision. It is spontaneous confession of guilt certainly we cannot rule against that if it was voluntarily made. The newspaper men were there to testify to this not the law enforcers who were suspect of having arrived there to arrest the offender but they do not even know what is happening when this man emerged from his shanty to disclose why he killed his wife. So you take it in this light, you do not take any admission of guilt, any confession of having committed a crime will not beadmitted in evidence this is true only when the declarant was already in police custody. The same objections has been raised in conducting paraffin test, the subject of the test is not considered a suspect because the test is only conducted to determine whether he fired a gun or not, not because he shot the victim the distinction is _________ not whether he has killed the victim or not so the supreme court said that is not within the scope of the right to counsel because the examination is not really accusatory. Now when a person who have committed a crime was able to plea after the commission thereof the private offended party may be required to go to the police precinct and report the incident, the incident is said to be blottered entered into the police journal which they are to take note in their respective jurisdiction. On this point the issue is one on evidence the report of the offended party is naturally hearsay as far as the policeman who records what is narrated by the suppose offended party but then this is not considered part of the hearsay rule because this as may be indicated by what is disclosed is what you call in evidence as independently relevant statement and this so called statement you must have learned are 60 not hearsay they are not part of the hearsay rule they are only being narrated to make known what has happened not to prove the truth of what they alleged it is for this reason that the police blotter may be admitted in evidence but if it is offered to prove as fact of what was reported it is hearsay because the policeman who recorded this was not present during the incident but if it is narrated as part of the report of what happened it is regarded as independently relevant statement you must have learned of this under the rules on evidence, the issue is admissibility not the credibility of the _____. Now relative to this if the offender and the offended party reside within the same city or municipality you have a provision in the LGC that requires the referral of the commission of the crime to the proper Bgy. If a crime committed carries a penalty of imprisonment of not more than 1 year or a fine of not more than 5k so this will have to be course through the bgy. Relative to this the Supreme Court has laid down a rule that insofar as these crimes which may be settled before the bgy concerned the LGC is a law that allows an amicable settlement of these crime which under the LGC should be referred to the Bgy for conciliation or mediation so insofar as these crimes are concerned they may be subject of amicable settlement generally crime cannot be settled amicably but where there is a law that allows this kind of conciliation Supreme Court said in this particular cases the law allows amicable settlement, otherwise if the offender after having committed a crime was arrested relative to this arrest is art 125 of rpc an arrest in flagrante is an arrest without a warrant but made on legal grounds art 125 of rpc allows the arresting officer or detaining officer only a period of 12, 18 or 36 hrs to hold the arrested person without the benefit of a criminal complaint filed against him when this period of time are exceeded the officer detaining or holding the person arrested becomes liable for arbitrary detention under art 125 the delay in the delivery of the arrested person in the proper judicial authorities under sec 6 of rule 112 on preliminary investigation if the offender arrested was for a crime where the procedural rule ALLOWS PI, since the PI cannot be terminated within 12, 18, 36 hrs the person arrested should make a waiver of the provision of art 125, under sec 6 of rule 112 in that

Twitter: 1226aponz waiver sec 6 requires that it be done in writing with the assistance and in the presence of a counsel, you must be aware of this as this is expressly provided under the rules of procedure and relevant to this is art 125 of rpc a very impt provision the counsel referred to here must be a full pledged lawyer one who has already taken oath as a lawyer, one who has already signed the roll of attorneys. So in a case where an arrested person was brought before the municipal judge to _______obtained from him by the arresting officers the municipal judge asked for a lawyer from among his staff in the municipal office but none of them is a lawyer there was one who took the bar but the result had not yet been released but just the same the municipal judge acting to attest to the oath and the fact of signing by the arrested person of his statement obtained by the law enforcers so this was challenged during the trial by the defense counsel and the prosecution argued that since there was no member of the bar in the municipal building when the arrested person was brought there the municipal judge himself administered the oath witnessed by one who has taken the bar exams, Supreme Court ruled that that is not valid when the law says counsel it means a full pledged lawyer. So if this cannot be done no waiver of art 125 could be made in such a case where the period has not been waived the rules require the arrested person to move for a PI if he wanted to avail thereof within 5 days after he learned of the filing of the criminal case against him in court and relative to that 5 day period Supreme Court ruled that it is mandatory, so if the arrested person move for a PI of the crime charged against him after the 5 day period that he had learned of the filing of the case against him the right to PI is lost. If he move for a PI within that 5 day period and it was denied the order of denial is null and void although PI is not part of due process of law when there is a law which allows the benefit of a PI to the person accused of a crime and that person seasonably invoked the remedy of PI to deny him the privilege will be a denial of due process of law hence null and void, ordinarily it is not part of due process because it is not found in the fundamental law but when there is a law that allows this and the arrested person apply for the benefit of PI within the confines of the law to deny him this privilege would be a denial of due process. 61 PI may be had even for crimes within the jurisdiction of the courts of the first level crimes where the penalty is imprisonment not less than 4 yrs, 2mos and 1 day irrespective of the fine. Before the rule was simple all cases within the jurisdiction of the courts of first instance later on the regional trial court has the benefit of a PI on the other hand all cases within the jurisdiction of inferior courts now known as the courts of first level are not subject of PI now when these amendments to the rules of crimpro came those who made it made the provisions worse, the members of the high court who approve of this have no experience in the countryside of people who have been offended parties in criminal cases, there are municipalities in the Phis where there is only 1 court so the PI of cases within the jurisdiction of the RTC is conducted by these Courts of First level after all they will not be the one who will try the case now when these amendments were made including the PI even cases within the jurisdiction of the inferior court itself you can imagine the court conducting the PI will be the same court who will try the case, the amendment resurrected the evil that was ____ in the case peo vs Villaluz where a man accused of estafa was arrested was arrested and an information was filed in the sala of judge villaluz the accused move for a PI, it was not made available to him before the information was filed in the RTC to be presided by judge Villaluz at the time RTC Judge are still authorized to conduct PI, where a case is filed directly in the RTC and the accused moved for a PI for expeditious determination of a prima facie case the judge is allowed to have the trial prosec. Conduct a PI, so in this case Villaluz directed the trial prosec in his sala to conduct a PI. And the Prosec. Reported that there is a prima facie case so judge villaluz directed that the case proceed to trial the accused here virtually cried to high heavens that he was railroaded jailed because all objections of his counsel were denied while objections to the prosecution were all granted even before the public prosec. Was finished explaining the basis of his objections so he cried out but the supreme court ruled there is no rule of criminal proceedings which would be binding the PI on that ground after all this is not part of due process of law, so the SC allowed the case to proceed on trial but henceforth RTC Judges were disauthorized to conduct PI already. When the

Twitter: 1226aponz amendment on the revised rules of crimpro was made lowering the crimes where PI will have to be allowed to those crimes within the jurisdiction of the inferior courts / courts of the first level and pointed out to the high court that many municipalities in the Philippines where there is only one municipal court so all violations in the municipalities where PI will have to be conducted now because the penalty is 4yrs 2 mos and 1 day will be filed in the same court and if that court will find that there is a prima facie case it will recommend to the prosecution to the provincial prosecutor, prov prsecutors office will then prepare the information now, where will it be filed ? it will be filed in the same court which conducted the preliminary investigation because there is only 1 court. (stories omitted) A lawyers encounter with criminal procedure does not start with the court that there crimes committed and the offender is arrested the legality of the arrest becomes an issue and generally in that arrest the offender is frisked which is known as the TERRY SEARCH rule in evidence purpose is simply to determine whether the offender had some concealed weapons for the protection of the arresting officer and the people around him so the matter of unlawful arrest comes in I told you prima facie any arrest without a warrant is illegal because of the constitutional guarantee that every citizen has a right to the privacy of the abode, of his person, papers and effects against unreasonable searches and seizures any search without a warrant is unreasonable because before a warrant shall issue the court will conduct a preliminary examination to determine the existence of probable cause, so you understand if the search is made without a warrant it simply means there is no determination of probable cause by the court, the probable cause is on the arresting officer. That is why the search is legal if incidental to a lawful arrest if the arrest is illegal it follows that the search is also illegal, anything obtained during that illegal search as an incident of an illegal arrest is inadmissible in evidence from there the offender shall be booked and I discussed with the so called Escobedo rule the right to be assisted by counsel and I gave you the ruling laid down by the US Supreme Court and this was followed by the so called Miranda warnings, in other words these are the factors you 62 will consider to determine the legality and hence the admissibility in evidence of whatever may have been obtained during that search now relative to this I invite your attention to sec 26 of rule 114 , a new rule under the revised rules on criminal procedure, for the first time it established a rule different from what we have been following since 1931 so that rule is something We have ___ Now when there is probable cause the offender who had committed a crime if the crime requires a PI, a PI would have to be conducted now relative to this you have art 125 of the RPC where the arresting officer or the detaining officer has a limited period 12, 18, 36 Hrs depending on the gravity of the crime committed within which to hold the arrested person without a case filed being in court, that period that the arresting officer may hold the offender is precisely for him to prepare the necessary papers for filing in court that perod of 12, 18 and 36 hrs is the time allowed for the arresting or detaining officer without incurring the crime of arbitrary detention but after that the arresting or detaining officer will incur this crime so he has to file the case under that time otherwise he will incur criminal liability. A PI cannot be completed within that period of 12, 18, 36 hrs that is why under sec 6 of rule 112 of the rules of crimpro the offender who may have the benefit of a PI must make a written waiver of the provision of art 125 if ever he wanted to avail of his right to PI under the said provision the waiver must be in writing made in the presence of and with the assistance of a lawyer. This is Indispensable, if there will be no available lawyer sec 6 require that the arrested person be brought to an inquest prosecutor some metropolitan cities have inquest prosecutors designated specifically for that purpose but in other municipalities there is no such prosecutors, the inquest prosecutor determines whether the arrested person should be detained or released but without prejudice to a preliminary investigation if there was no inquest prosecutor sec 6 of rule 112 requires that the arresting or detaining officers must execute an affidavit together with the affidavit of the complainant and the latters witnesses which will be filed with the court in other words there are certain requirements where the arresting or detaining officer

Twitter: 1226aponz must comply with and that you should know otherwise everything becomes illegal. Now where the case was filed without the PI whereas the rule grants the offender PI the rule requires that the arrested person if availed of the PI within 5 days after he learns that a case against him was filed in court relative to this supreme court ruled the 5 day period is mandatory hence if the arrested person invoked the benefit of the PI beyond the 5 day period the court will deny the PI because it was not seasonably applied for. At this juncture where the offended is held in detention because he wanted to apply for a PI you have sec 26 of rule 114 to consider a section which is new under the revised rules of crimpro. It is provided there in substance that petition for bail will not amount to a waiver but the right of the arrested person to question the legality of his arrest the validity of the warrant of arrest issued against him, the regularity of the absence of the PI before this was not the rule eventually this rule was adapted bit this was questioned in the case of rolito go vs judge madayag eventually this rule was adapted what is important under the rule the right given thereunder must be invoked before the accused has been arraigned and has entered a plea, Otherwise the objection against the legality of the search, arrest, regularity of the absence of PI, will not be allowed anymore considered as waived already. So you see the effect of this provision on the matter of PI, you must have learned in your basic study of procedural rule that offer of evidence in criminal cases is done when a party is finished presenting his witnesses and about to rest his case that is after he has already been arraigned after trial already, so in the light of this new rule now the objection to the admissibility of the evidence when it is offered on the ground that the same was obtained through an unlawful search becomes stale ???? cannot be raised anymore because under this sec 26 it can only be raised before the accused has been arraigned ??? so you see the change in the rule. This is the effect of that new proviosn in sec 26. During the PI the investigating prosecutor determines whether there is probable cause to hold the respondent for trial and if so, the resolution would be to hold the resp. and file a case in court. Otherwise the investigating prosecutor would recommend for the dismissal of the case against the 63 respondent where the investigating prosecutor found probable cause to hold the respondent for trial they make a resol recommending the filing of the case against the offender so with that resolution the prosecutor will already prepare an information to be approved by the chief prosecutor hence in the matter of preparing the records of filing in court you have to consider the rules under rule 110, what a complaint is, what an information is, required oath who may prosecute the case under this rule110 the more important provisions are sec 6 the sufficiency of the complaint or information what must be alleged there indispensably. You have to be with the requirement the complaint or information filed will be considered insufficient it may then be subject to an amendment. The requirement about aggravating circumstances come within the provision particularly sec 8 and 9. Now you will notice under sec 8 and 9 , the requirement that aggravating circumstances whether qualifying or generic must be alleged in the information and proven during the trial, there is no allegation there that if proven during the trial but not alleged in the evaluation it should not be taken against the accused this is only a ruling of the SC, the rule before as you must have learned if the aggravating circumstance proven during the trial was only generic even though not alleged in the information it may be appreciated by the trial court in the imposition of the penalty of the accused presently however the rule is now different whether the aggravating circumstance is qualifying or generic only if not alleged in the information even though proven during the trial, the trial court should not appreciate the same against the accused. Its not a question of being proven its a question of being ______ . The silent issue arises here may the prosecution amend the information to alleged the aggravating circumstances. I asked this part question to the committee on the revised rules and the reply was the rule under civil procedure which allows amendment to the pleading to conform to the evidence does not apply here indeed you have different rules of amendment under sec 14 and there is no prohibition there against amendment of an information when evidence ___________now this is anopen question you have to consider this, the rule does not prohibit amendment, the amendment prohibited under sec 14 you have there amendment before arraignment _____ as a matter of right whether it is a matter of form or a matter of substance except in 2 cases where the amendment would downgrade the gravity of the crime charged in the original information or the amendment would bring about the dropping of an accused charge in the original information the revised rules now require

Twitter: 1226aponz even though such an amendment would be made before arraignment and plea of the accused that the same must be made with due notice to the offended party implying that the motion to amend must be in writing and it must bear the required notice of hearing to allow the offended party to be present during the arraignment if despite that notice the offended party did not appear you will contend with the provision of rule 116 of arraignment that the court that the court laid down a plea to a lesser offense even without the conformity of the offended party if even if duly notified failed to appear in the arraignment so if you want to say something during the arraignment you must be there otherwise the public prosecutor will have to decide on the matter. At any rate there is no provision there that prohibits amendments to allege aggravating circumstance if these will be done before arraignment and plea its a matter of right its not covered by any provision to the contrary now if this would be made after arraignment and plea sec 14 of rule 110 allows such amendment but only as to matters of form and you have read the ruling by the SC that if the aggravating circumstance to be alleged was generic the amendment is only a matter of form so if it would be qualified it would be a matter of substance cannot be made after the arraignment and plea of the accused this is the jurisprudence on this point but under the present rule there is no qualification made as to the aggravating circumstance that may be proven during the trial but not alleged in the information so you have to consider this if you encounter a problem on this point . Suffice for you to know that it is not a positive provision of the rule it is only a ruling of the SC that if the aggravating was not alleged in the information although proven in the trial the trial should not______the same against the accused but suppose the prosecution move to amend so as to alleged the aggravating in the information should the amendment be allowed then you have to contend with sec 14 there is no prohibition against this kind of amendment. The next important rule aside from sec 6 rule 110, the next important section is sec 13 so called duplicity of offenses in crim cases you will recall fundamental law requires that an accused must be informed of the nature and cause of the accusation against him pursuant to this guaranty the rule against duplicity of offenses was ____ down an information should charge only 1 offense and that is precisely so as not to confuse the accused of the cause and nature of the accusation against him the purpose of the arraignment is to precisely to comply with this 64 constitutional mandate that is why you must have learned that during the arraignment the information must be read to the accused in language understood by him not necessarily the language of the law but in a language understood by common man. Where however prescribes only one penalty for several offenses like complex crimes, composite crimes and special complex to be able to impose only 1 penalty for more than 1 crime all the crimes covered by the penalty must be alleged on 1 information only so that is exception where the law prescribes a single penalty for several offenses all the several offenses must be alleged in a single information only otherwise for every information filed in court where a crime is validly alleged and proven during the trial the court must impose a penalty for such information so you must have learned in criminal law a single penalty may be imposed on complex crimes but if the complex crimes where made subject of different information the prosecutor stripping the crime as many information as are filed the court will be obligated to impose the proper penalty provision of art 48 on complex crimes does not apply anymore. It is only when the info charges more than 1 offense where the law prescribes a single penalty that only 1 penalty may be imposed and in crim law this is true only in the following cases when the information charges a compound crime, complex crimes, info charges a composite crime or what commonly known as special complex crimes and lastly so called continued crimes so in these instances an information may alleged more than 1 offense without violating the rule against duplicity of offenses in other words you get ________ the fact that an info charges more than 1 offenses does not render the offenses as punishable with only 1 penalty this is true only when the law violated prescribes only 1 penalty for several crimes like in the case of robbery with homicide, with rape, under art 294 so called composite crimes only 1 penalty regardless of the number of persons killed, so your knowledge of criminal procedure must be augmented with your knowledge of criminal law otherwise you would hardly understand accurately the rules of criminal procedure. Because this is laid down to implement criminal law. When the information charges more than 1 crime which the law does not punish with 1 penalty that means there is duplicity of offenses now what is the effect the fact that the information suffers from duplicity of offenses does not invalidate the information, duplicity in an information only gives the accused the right to file a motion to quash, this is one of the grounds for a motion to quash under rule 117 of the rules of crimpro if the accused does not

Twitter: 1226aponz moved to quash the information the duplicity is waived the court then would consider that several information were filed against the accused for every crime alleged in that single information and if all the crimes alleged are proven the court will impose penalties for as many crimes alleged and proven during the trial. It does not follow that if several offenses are charged in 1 information the court should impose only 1 penalty that is true only if the crimes alleged are those were the law prescribes a single penalty only if not the duplicity of offenses will not bring about a single penalty. That is the effect of the duplicity of offenses in 1 information. One important incident that you should guard against duplicity of offenses means that the offenses alleged in 1 information are within the jurisdiction of the court where that information was filed if the crimes alleged in 1 information fall under different jurisdiction of the court where the information was filed the primary basis for a motion to quash is not duplicity of offenses but rather the court has no jurisdiction over the particular crime which is beyond its jurisdiction so if an information was filed in the rtc alleging 3 crimes that 1 of the 3 crimes are not under the jurisdiction of the regional trial court but under the jurisdiction of the court of the first level although there is duplicity of offenses the ground for the motion to quash is not duplicity but the court has no jurisdiction over that particular crime which is under the jurisdiction of the inferior court. Amendment may be made as to matters of form or as to matters of substance when the amendment would place the accused in double jeopardy the amendment is a matter of substance on the other hand where the amendment would not place the accused in Double Jeopardy the amendment is only a matter of form. Amendment whether as to form or substance may be made as a matter of right before the accused was arraigned and have entered a plea to the crime charged the exception to this rule is when the amendment would either downgrade the gravity of the crime charged in the original information or would bring about the dropping from the original information of an accused charged thereunder this amendment although to be done before the accused was arraigned and have entered a plea will always be with prior leave of court and the motion for leave of court should be in writing because of the requirement that due notice of hearing thereof must be given to the offended party and the prosecutor. So notice is required although the amendment is a matter of right. Now although an amendment may be a matter of form only if however it will prejudice the substantial rights of the accused 65 sec 14 mandates the court not to allow the amendment of what may appear to be a matter of form may actually amount to an amendment of substance if the substantial rights of the accused would be prejudiced so it will not be allowed where the accused has already been arraigned and has entered a plea. After the accused has been arraigned and has entered a plea only amendment as to form can be allowed and always with prior leave of court for the court to determine whether really the amendment is one of form or one of substance this is a matter that you should be familiar with, it did not the wordings of the amendment its not the nature of the amendment it is whether the accused by making the amendment would be subject to double jeopardy whether the amendment appears to be only a matter of form if the amendment would subject the accused to double jeopardy whether the amendment appears to be only a matter of form if the amendment would subject the accused to double jeopardy it is regarded under the rules of procedure as a matter of substance on the other hand if the wordings of the nature of amendment appears to be 1 of substance if the accused thereby would not be placed in double jeopardy the amendment is regarded only as an amendment of form in this case of Teehankee vs Judge Madayag you may have read this case of frustrated murder filed against teehankee for the fatal shooting of Maureen hultman, after 2 prosecution witness already testified against the accused complications developed and the victim dies so there is a need to amend the information from frustrated murder to consummated murder in this case supreme court ruled the contemplated amendment is only a matter of form but that amendment is a matter of substance not of form because frustrated murder and consummated murder have different penalties, frustrated murder is not punishable by death consummated murder is punishable by death one degree higher, definitely its a matter of substance not because that kind of amendment is one of the exceptions where no double jeopardy were developed under sec 7 of rule 117 when a graver offense developed out of supervening facts arising from the original circumstance alleged in the information the subsequent filing of an information for the graver offense is an exception to the rule against double jeopardy there is no double jeopardy and if the original information had already been terminated and a penalty has already been imposed that penalty will be credited against the penalty which may eventually be imposed that is an exception hence the

Twitter: 1226aponz amendment would not give rise to double jeopardy the sc ruled that its only amendment as to form but if you would go over the nature of the amendment it is hard for you to say that it is to form. Aside from this provision of sec 14 also under rule 110 sec 15 the venue for the institution of a criminal action you must have learned by now that in criminal cases the place where the court resides is not just a matter of venue its a matter of jurisdiction and that is what you call territorial jurisdiction in civil cases you call it venue because it is open to stipulation between the parties but you know that in criminal cases that place where the criminal action is filed cannot be subject of stipulation between the parties because it is jurisdictional so this section 15 of rule 110 should be definitely learned by you because it is jurisdictional gen rule crimes should be prosecuted in the place where they are committed if it was the so called continuing crime the criminal action will be instituted in any of the places where the essential ingredient of that crime took place so the choice of venue or place where the criminal case should be filed is only open to criminal cases which are considered in criminal law as continuing crimes where the crime is committed in a moving train, vehicle or aircraft the place of departure or the place of arrival of such in the course of that trip may be the place where the crim action may be instituted and that would include any of the places where that train, vehicle or aircraft passed in the course of that trip. Now what is important here, place of departure place of arrival is included as the proper place for the institution of the criminal action. In the case of a vessel where the crime was committed during the voyage of the vessel the place of departure of the vessel are not included what is included is the first port of entry, the arrival in the course of that voyage and any of the city or municipality where the vessel may have passed in the course of that voyage now even though the particular place where the crime was committed on board the vessel is known that does not mean that the place can only be prosecuted in the proper court of that place in any of the places specified under subsection C of sec 15 the criminal action may be instituted. You will notice under the present rule there is no requirement anymore that the vessel where the crime was committed must be registered and licensed in accordance with Philippine laws this was the requirement under the old rule now it had been removed so the ruling in the earlier cases that if a crime is committed outside of the Philippine territory Phil courts have no jurisdiction over the crime is not governing anymore it is the present rule you should consider for purposes of territorial 66 jurisdiction where the crime can be prosecuted. If a crime was committed outside of the Philippine territory only the RTC or collegiate trial court has jurisdiction, any rtc where the criminal prosecution may be filed that court is competent to exercise jurisdiction over the case but not an inferior court. After complying with these requirements an information is approved by the head of the prosecutor, the information will be filed in court having jurisdiction over the same, next thing to follow is the issuance of a warrant of arrest if the accused have not yet been under arrest but if the accused is already detained because the inquest prosecutor found that there is a prima facie case against him then the court where the information was filed will only issue an order of commitment not a warrant of arrest, the order of commitment requires that the offender shall be kept in a jail under the jurisdiction of the court where the criminal case was filed, relative to this you must have learned in arrest that the offender who is arrested for the commission of a crime should be delivered to the nearest police station and there you will have to be held in detention if that is not the place where the crime is to be prosecuted because the crime is not committed in that place then the court will have to issue an order of commitment to transfer the offender on any places of confinement under the jurisdiction of the court which will try the case but if the offender is still at large the court where the information was filed will have to issue a warrant of arrest, rule 113 then will come into operation before a court may issue a warrant of arrest it must conduct Preliminary Examination so you must know the difference between P.E. and P.I. the distinctions are : In P.E. it is a proceeding for the determination of the existence of probable cause for the issuance of a warrant of arrest whereas in PI it is a proceeding for the determination of the existence of probable cause to hold the person to be arrested for trial to answer for the commission of an offense where there is a primafacie case against him. 2nd point of distinction PE is conducted by a judge not by a prosecutor whereas PE is conducted by prosecutor not a judge. Under this rule on arrest you should know exactly the instances where a warrantless arrest is valid. You have these provided for in sec 5 rule 113 now when an accused is arrested the first ______come to him is to regain provisional liberty unless crime committed is not _____ then that offender will remain under the so called preventive imprisonment during the trial of the criminal case against him. The next thing to follow will be the arrested person will apply for his provisional release

Twitter: 1226aponz either on bail or on recognizance relative to this you should know when the bail is a matter of right when bail is a matter of discretion. What is a recognizance when is it allowed for the release on provisional liberty of an accused this will be under rule 114 on bail. Motion to Quash Under the rules of crimpro after the filing of the case in court and before the accused is arraigned if the accused has any ground to file a mtq the motion must be filed before or on the day of the arraignment, the court although a mtq must be filed should not issue an order of dismissal if the defect invoked in the MTQ may be rectified by mere amendment, the court will instead direct the prosecution to amend the information typically referred to under this rule is where the fact charge do not constitute an offense. It would be idle to issue an order of dismissal because after all the information may be refilled because no jeopardy will attach to the accused There are only 2 grounds here that will call for an order of dismissal and that is because the case cannot be refilled anymore and this is where the criminal liability or action has already been extinguished to allow a subsequent will subject the accused to double jeopardy and secondly when the case against the accused has already been adjudged either by conviction or acquittal or the case has been dismissed or terminated without the express consent of the accused under this ground you have the so called double jeopardy and this is the more important ground specified in rule 117. In the case of the court having no jurisdiction over the crime charged in the information it will not bar the refilling of the case in the proper court which has jurisdiction over the crime charged the fact that the court over which the case was filed has no jurisdiction over the crime charge cannot possibly bring about double jeopardy because when the court has no jurisdiction over the crime charged there can be no valid prosecution although an order of dismissal may be proper yet the dismissal will not really be a bar to a subsequent filing of an information but there are only 2 grounds by which the dismissal will already bar the subsequent filing of another information. The grounds for a mtq is the ground governed by sec 7 of the rules that is more important and that is what we call for short as double jeopardy now you should incidentally know that ground for a mtd in a civil case known as litis pendentia where there is also another case involving the same matter, same cause of action, same parties pending in another court this is not a ground for a mtq despite that the accused is charge for the same crime in 2 67 courts absent any judgments that is final and executory in either of 2 cases will not be a ground for a mtq, it is only DJ that is mentioned as a ground under rule 117 so you take note of this peculiar deficiency among the grounds for a mtq, in a civil case this is a ground for dismissal to abate of 1 of the case filed in anotherr court.. In a criminal case it may only be a ground to suspend until the other case has been decided with finality then the ground for a mtq arises which will then be DJ. Under the requisites of DJ you have to note that there must be 2 cases where 1 has already been decided, the accused being convicted or acquitted or the same was terminated otherwise dismissed without the express consent of the accused. Relative to this ground you have 3 exceptions where the filing of the same or similar case or a case necessarily included or which necessarily includes the original information will not bring about DJ the exceptions are important in you determining whether an amendment will be allowed or not. In criminal cases amendment of substance is not allowed where the accused had already been arraigned and have already entered a plea ut whether the amendment is 1 of form or 1 of substance does not really depend on the nature of the desired amendment it may appear that the desired amendment is 1 of substance and yet for purposes of DJ it may amount only to an amendment of form = Ex.Teehankee vs Judge Madayag accused claims he would be subjected to DJ amendment of substance daw= ruled to be an amendment of form allowed under rules of amendment objection denied = SC upheld court ruling. For purposes of allowing the amendment after the accused has already been arraigned will be considered a matter of form if the amendment will not subject the accused to double jeopardy. Whenever the character of the amendment even though it appears to be substantial In nature it will still be regarded for purposes of this rule on amendment as a matter of form if the accused is not thereby placed in double jeopardy. I the amendment would place the accused in DJ the amendment is a matter of substance no matter how the wordings of the amendment may be formulated.. Important also is an amendment that will include an allegation in the information the fact that the accused confederated, collaborated, and conspired for purposes of gain in the commission of a crime, this amendment in 1 case is said to be an amendment of substance yet the same amendment in another case was held to be an amendment only of form now you should understand the reason for the variance /disitncttion in the orig. case crime was committed by 2 persons only 1 was

Twitter: 1226aponz identified the only 1 named in the information as an accused the other 1 was not identified was only charge as john doe, the allegation in the information cannot possibly state that the accused confederated, collaborated help 1 another in the commission of a crime, only 1 was named the other 1 is named under a fictitious designation as john doe, so the information has no designation of the existing conspiracy if at all, subsequent to the filing of info however when there had already been 2 witnesses who testified against the accused, an encounter with law enforcers of court somewhere in commonwealth ave. and the other 1 of the culprit was caught other 1 was killed in the shootout, the 1 who was caught was identified to be the john doe of the case to be on trial so the prosec. Learning of the fact that the john doe was already caught and identified moved for leave of court to amend the information to drop the name of john doe and enter the name of the offender who had already been identified and under arrest then move for leave of court to amend the information to drop the name john doe and enter the name of the offender identified and arrested. Trial court allowed the amendment the accused behemently objected claiming that prosecution already presented 2 witnesses and therefore no amendment of substance can be allowed again the issue revolve of the question of whether the desired amendment is a matter of form or a matter of substance. Trial Court considered that the amendment is only a matter of form SC sustained the TCS analysis that the amendment is only a matter of form the accused invoke an earlier ruling by the sc that an amendment of the info to alleged conspiracy is an amendment of substance and should not be allowed after the accused has been arraigned in that case where this was the ruling there were 3 accused all charge at the same time he trial prosec who was not the investigating prosec noted that there was no allegation of conspiracy in the information whereas there was 3 accused charged so if the information will not be amended to include the allegation that the accused collaborated, confederated and mutually helped 1 another for purposes of gain in the execution of the crime the trial prosec will have to present evidence against the accused individually whereas with the allegation of conspiracy the trial prosec will simply present evidence once and that evidence will already be good against the accused because of the rule in conspiracy the act of 1 is the act of all. So the trial prosec moved to amend that information to alleged that the crime was committed through conspiracy by the 3 accused because the TC granted the amendment, the accused raised the issue to the sc on a question of law SC ruled it is an 68 amendment of substance and the reason given was this since there were 3 accused under the information without the allegation of conspiracy among the 3 accused a finding by the trial court that among the accused are accomplice and principal are probable whereas with the allegation that the accused confederated collaborated mutually helped 1 another in the perpetration of the crime such finding that among the accused one is an accomplice one is an accessory is no longer possible because the act of 1 is the act of all so w/out the amendment, the possibility that any1 of the accused may be an accomplice or even accessory but the moment it is amendment all the accused will only be sentenced as principals, so the higher court definitely the amendment will place the accused who would be suffering the liability of a principal whereas he is only an accomplice or an accessory will be placed under DJ. Now in the subsequent case however where that allegation is also ________ the accused objected to the allegation in the info that would state, that the accused confederated collaborated mutually helped 1 another for purposes of gain in the commission of the crime, in this case the same allegation was held by the SC to be an allegation of form only not an allegation of substance even though the wording of the desired amendment is identical of the reason stated by the SC was this, in this subsequent charge where initially there is only 1 identified accused, the other accused was named under the fictitious name of John Doe any allegation of consp. Becomes either _____ because there is only 1 accused identified so that rule in consp where the act of 1 is the act of all does not apply here because there is only 1 accused the other accused is still 1 of speculation because he has not been identified so the amendment will not in any way prejudiced the accused who has been identified and prosecuted ahead of the other 1 who has been subsequently apprehended between the 2 accused, the first 1 cannot complain against double jeopardy because he is only 1, only alone it is the 2nd accused initially identified as john doe but subsequently an amendment was made to identify him by his true name who may complain about DJ but since he has not yet been arraigned nor have entered a plea, he cannot invoke DJ, only the 1 originally charged can invoke this but even the 1 originally charged cannot invoke this because name was absent from the allegation in the information was only 1 was accused so there can be no conspiracy regarding the accused ( incomprehensible double check ) when that conspiracy became evident with the arrest of one who was identified as john doe, the amendment

Twitter: 1226aponz cannot affect the first 1 who was the lone accused the amendment can only affect the 2nd one who came in after the 2 witnesses have already testified but this 2nd 1 cannot invoked DJ because he has not yet been arraigned where the supposed Jeopardy attaches to the first accused against whom 2 prosecution witnesses already testified so the distinction lies on the fact that in the accusation where the amendment was allowed the amendment would affect the seriousness of the charge against the accused because there were 3 of them whereas in the 2nd the case proceeded with only 1 accused the other 1 was only apprehended after 2 witnesses for the prosecution have already testified so the claim of jeopardy does not exist in the 2nd case since there was only 1 who was accused of a crime the 2nd 1 became accused only after he was identified and his name is known. You have gain this amendment that would allege that the accused confederated, collaborated, mutually helped 1 another in the commission of the crime this is true only there are more than 1 accused so for as long as there is only 1 accused these allegations cannot be made as an amendment to the allegation in the information because there is only 1 who has been identified so the same amendment 1 is regarded as of substance the other as one of form and that is because the effect of whether subs or form is on whether the accused would be placed in DJ or not. This will be the guiding criterion. Dependent on the exceptions under sec 7 of rule 117. This is impt as far mtq to quash is concerned and the basis is DJ. Relative to this the fact that an accused is charge on the same crime between 2 courts is not a ground for dismissal it is only a ground for a motion to suspend one of the 2 identical accusation was not a mtq because this ground is true only in civil action litis pendentia or pending litigation with the same party for the same cause same subject matter is not among the ground for a dismissal of a civil action, although a ground for quashal in a criminal action although it is true only in a civil action. More important on the rule on quashal is sec 8 provisional dismissal a new provision. In order that sec 8 may be relevant to the dismissal the dismissal must be at the trial of the case not on PI and the dismissal must be provisional with express consent of the accused and upon motion of the prosec with notice to the private offended party so this requisite must obtain before you reason out on the basis of sec 8 of rule 117. If this characteristics are absent sec 8 on provisional dismissal will not govern this is so because you have to maintain a distinction bet a dismissal which is provisional and therefore the case may only be 69 revived the case that was provisionally dismissed may revived it would be diff if it would not be a revival of the original case but a refilling of the case itself where additional respondent are brought in or addtl witnesses are brought in to bring back the case in its valid condition would mean not a revival but a refilling and this sec 8 of rule 117 does not apply to a case of refilling sec 8 applies only to a case of revival of the case of the case originally dismissed provisionally. Sec 8 rule 117 contemplates of a revival not refilling. Before sec 8 is invoked it must be established that the case that was revived purportedly and the case that was provisionally dismissed have the same docket number the moment the docket number of the subsequent case purportedly revised is different from the docket number of the case that was provisionally dismissed it is not a case of revival but a case of refilling whether the refilling is valid or not is determined by the law on prescription of a crime not by the provision of sec 8 of rule 117. It is as important as this. If this was a case of revival if required as a pre requisite as a dismissal of the original case that is to be revived must have been done with the consent of the accused so that jeopardy may not set in. If the dismissal is without the express consent of the accused the revival would then bring about DJ already under I rule117 that cannot be allowed now moreover sec 8 rule 117 requires notice to the private offended party without that notice the provisional dismissal will not affect the dismissal of the offended party because that would mean that the offended party was denied due process of law so whatever transpired in the case cannot be taken to the prejudice of the offended party. You understand why this 2 requisites are mention sec 8. Now under the 2nd par of sec 8 rule 117 a provisional dismissal will become permanent if the prosec will not _____ the dismissal within a period of 1 year if the penalty prescribed for the crime that was provisionally dismissed does not execced 6 yrs of imprisonment without regard to any other penalty when the crime involved for which the proceeding from ________ was provisionally dismissed carries a penalty imprisonment of not more than 6 yrs the revival must be made within a pd 1 yr after the order of dismissal was issued and if the crime involved in the provisional dismissal carries a penalty of more than 6 yrs of imprisonment the revival must be made within a period of 2 yrs otherwise the dismissal initially provisional becomes permanent. Once a provisional dismissal becomes permanent it will amount to an adjudication on the merits of a case and therefore double jeopardy can already be invoked after the lapse of the time bar of 1 yr or the time bar of 2 yrs

Twitter: 1226aponz as the case may be, I emphasized to you this time bar of 1 yr or 2 yrs as the case may be is true only to a case of revival of a criminal case that was provisionally dismissed on the date of the requisites stated in sec 8 w/ the express consent of the accused and with prior notice to the private offended party this was explained in the criminal case against sen lacson instituted in respect of the kuratong balelelng and the issue of revival came in after a move to reopen the case came at and at the time these revisions of the rocp of the yr 2000 and thereafter have already been done but the trial judge instead of looking into the question of compliance of the requisites under sec 8 of rule 117 went further and ruled on the merits of the revival now in that resol of the sc the analysis of which was prepared by then justice romy callejo sc made a distinction between a revival of the case and the refilling of the case if the supposed revival brought in additional respondent or additional offended party a PI has to be reconducted. The case cannot ride on the same docket number as the old 1 because that case was filed even though on the basis of the offended party identified in that case and the respondent are those identified in those case now if theres was an added respondent and added private offended party a reinvestigation will have to be conducted another PI will have to be conducted to determine whether a prima facie case obtained or not. Now in such a situation it will not be a revival but it will be a refilling of the case and under the law a criminal case must be refilled as long as the accused has not been placed in DJ and the filing would involve additional parties either as respondent or as private offended party. It would be considered only as revival if the subsequent case is brought under the same docket number as the original case that was supposedly dismissed provisionally if not if the docket numbers are different then it is a new case that was refilled with additional witnesses with additional respondent or additional private offended party it is to be governed by the rules on prescription of criminal action not by the rule on revival of the case that was provisionally dismissed this is an important point that you should never fail to correctly appreciate. Now moreover sc clarified under the provision of sec 8 the reference in respect of the 1 year pd or the 2 yrs pd for the time bar to set in the reckoning point is the issuance of the order of dismissal SC pointed out this is not correct the 1 yr or 2 yr time bar should start to run only after the prosec. Had already been served of the order of dismissal for as long as the prosec has not been served with notice of the order of the provisional 70 dismissal the same cannot be binding upon the prosecution so the date should not be when the order of dismissal was issued but rather when the notice of the order of dismissal was received by the prosecution so you may have a problem on this the 1 yr pd may be 2 from the time the order of dismissal was issued but by the time that order of dismissal was received by the prosecution more than 1 yr have already lapsed then you will literally ______- and apply sec 8 of rule 117, you will say that the dismissal has become permanent assuming that it is the same case that was revived. Now that will not be so the 1 yr pd or the 2 yr period as the case may be shall be reckoned not from the date of the order of dismissal but from the date notice of the order of dismissal was received by the prosecution. Moreover SC clarified that the permanency of the 1 yr pd or the 2 yr pd from the dismissal of the case should not be automatic, the prosec should be given the benefit of due procees of law and that is to require the prosecution the opportunity to explain why the provisional dismissal was not revived within the 1 yr pd or the 2 yr pd. In other words the provisional dismissal will not become permanent automatically upon the lapse of 1 yr or 2 yrs as the case may be the provisional dismissal will only become permanent after due hearing had been conducted and in that hearing the prosecution failed to justify its inaction in the revival of the order of provisional dismissal SC reiterated the pronouncement not only the accused but even the state ???? is entitled to due process of law so before the inaction of the prosecution may be taken against it by making the provisional dismissal permanent upon the lapse of 1 yr or 2 yrs as the case may be prosecution may be given an opportunity to be heard a hearing must be conducted to allow the prosecution to explain why the order of provisional dismissal was not revived within the pd of 1 yr or 2 yrs ____ does not follow that after the order of provisional dismissal has lapsed 1 yr pd already finished 2 yr pd already finished that the dismissal becomes permanent SC intimated that it will only become permanent if there was a hearing conducted giving the prosecution the opportunity to explain why the provisional dismissal was not revived and only when the prosecution could not explain or warrant its non revival of its provisional dismissal may the same be taken to amount to a permanent dismissal. So the letter of the provision does not really read as it may literally be read it be understood in the light of principles of law that every party must be given due process every party must be given the opportunity to be heard and only when after hearing the

Twitter: 1226aponz justification for the application of the provision does not apply that the case will not be considered as having right to an _____ a permanent dismissal. These things that im explaining to you are brought out by the resolution of the court on this issue but from the wordings of the provision of sec 8 you dont find it there it appears to be literal but a literal application violates fundamental principles of law, so what the sc said here must be of noted value because that is in accord with accepted principles of law. You take note of this, same docket number not the same docket number that is not a revival but a refilling. A revival means the same number of the case is brought back into existence. That means that the original case was simply archived if it was really dismissed the original docket number changed then thats not the same case that was provisionally dismissed and then being revived that means that its already a diff case and the rule on prescription of a crime will be the governing rule not revival. Then comes the stage of arraignment, under the old rule the arraignment and the plea of the accused comes under diff rules under the revised rules now they are under 1 rule only under rule 116. This is the correct 1 because the arraignment is nothing without the accused entering a plea the plea of the accused is in fact received during the arraignment under the old rule the plea may be entered by the counsel of the accused or any representative of the accused not necessarily from the mouth of the accused itself but under the revised rules even before the rules before this the arraignment requires the presence of the accused and the plea must be made by the accused himself this is also true under the revised rules now. The accusation shall be read to the accused himself and the accused himself shall enter his plea not anybody else in his behalf not even his own defense counsel. The change has been made because the requirement under the constitution that the accused should be informed of the nature and the cause of the accusation against him is one of the guarantee to an accused under the consti. And this must be complied with not just in letter but substantially hence this must be made from the accused himself. The accused himself entering his plea won guilty or not guilty. Now irstly you should know here is the fact that during the arraignment the accused must be physically present in court and the accusation shall be read to him in person no representative not even the defense counsel can enter the plea for the accused. 2nd proposition here the accused is allowed to enter a plea to a lesser offense than what is charged in the info but again under the revised rules now the lesser 71 offense to which the accused may enter a plea must be 1 necessarily included in the offense charged before the present revised rules went into effect the previous rule of crimpro allow the accused to enter a plea to a crime which is not even necessary included or does not even necessarily include the crime for which the accused enters a plea, one of the glaring stupidity among the members of the bar, allowing the accused to enter a plea for a crime thats is never charged, yet its in the rules. So a new law was passed ________ speedy trial act of 1997 where this error was corrected. Now, the accused can only enter a plea for a crime that is necessarily included in the crime charged. He cannot be made to enter a plea to a crime which necessarily includes the crime charged because that means the crime to which he will enter a plea to is greater than the crime charged and that cannot be done because the accused can only enter a plea for a crime for which he has been informed if hes been informed of this crime hes informed of the crime of homicide then he will enter his plea for a crime of murder thats insanity or if he is prosecuted for attempted murder but he will enter a plea for consummated murder a crime thats necessarily include the crime charged that cannot be it must be that the plea be made to a crime necessarily included in the crime charged in the information that means that the plea will be to a lesser offense. Under the revised rules when the accused enters a plea of not guilty the court may inquire about his defense whether it is a negative defense or an affirmative defense. A negative defense are in the nature of specific denial, an affirmative defense is in the nature of a confession and avoidance. In a criminal case an affirmative defenses are those where the accused invokes a justifying circumstance or circumstances or an exempting circumstance or circumstances so under the rule if the accused would enter a plea and disclosed that his defense would be an affirmative defense the court may require him to adduce evidence first and the prosecution to adduce only rebuttal evidence precisely when the accuse offers an affirmative defense meaning justifying or exempting circumstances the effect of this criminal law is that the accused admits the act or omission constituting the offense but he tries to avoid liability for those acts or omission by invoking justifying and exempting circumstance and he may be able to avoid liability if he could prove the requisites of the justifying circumstance he is invoking or the requisites of the exempting circumstance he is invoking that is why the rules allows the court to require the accused to adduce evidence there for him to prove the requisites of the justifying or exempting

Twitter: 1226aponz circumstance that he is invoking the prosecution will only present rebuttal evidence to show that the requisites are not complied with, now this is what brought about the trial in the reverse because instead of the prosecution presenting evidence first which is natural because the accused is presumed to be innocent in this situation where affirmative defense is invoked by the accused trial may proceed in the reverse. It is the accused who will show compliance non liability which is somewhat incompatible with the presumption that the accused is innocent then why require him to adduce evidence to prove his defense. Incompatible with certain principles of law this trial in reverse inconsistent with presumption of innocence. Under these rules on arraignment, the irritant brought about by a capital offense has already become academic because there is no more capital offense although in some provisions of criminal procedure the instances where the penalty is reclusion perpetua or life imprisonment is taken together with death penalty the const. as well as in the rules of crimpro, in criminal law its always death, reclusion perpetua, life imprisonment. If R.P. or L.I. also calls for automatic review, automatic review is only good for capital punishment, R.P AND L.I. are not considered capital punishment, it is only because of the gravity of the penalty that it is placed under appellate scrutiny of the highest court of the land but it is not a capital offense punished by R.P or L.I. its only the death penalty that is considered capital because the offender loses his own life so there is no more capital offense the mandate that the court should comply with in a capital offense where the accused would enter a plea of guilt is no longer true under the rules because there is no more capital offense, capital offense is not only those where the death penalty is imposed it must be that at the crime was committed the penalty is there at the time an application for bail is filed the penalty is still there and at the time the case is decided the penalty is still there so in either of these the death penalty has been legislated out, it is not a capital offense anymore but although penalty may not be be a capital penalty may not be RP or LI the basic requirement is that where the accused enters a plea of guilty during the arraignment it must be made as a voluntary and intelligent plea the accused must be ascertained to understand the meaning and the consequences of his plea. The demeanor of the accused during the arraignment may indicate whether the accused understood the nature and the consequence of this so in a case where the penalty is the death penalty but the accused is a habitual delinquent, he was brought to court for arraignment he volunteered to state that he 72 is admitting the crime already which is punishable by death but the court insisted that the information be read to him because that is required by the fundamental law informing the accused of the nature and the cause of the accusation against him reading the information in the language known to him and understood by him and this part case while the court directed the clerk to read the information the accused who has been in and out of the penal establishment is regarded to be acquainted with the procedure already but yet the trial court required the clerk to read it clearly to the accused, the accused then was looking around the gallery where the public were waiting for their turn for their case to be heard the accused was simply scratching his head smiling, so the court was irritated and scolded him to mind his demeanor but the accsued cannot be controlled even while the coc was reading the info., the court then directed the stenographer to put it in record that while the accused was being arraigned and the court was informing him of the nature of the case and the consequences and penalty therefore he was smiling and looking around. Accused entered a plea of guilty at that time the Death Penalty was subject to automatic review by the SC so the case went up for review, SC nullified the plea directed the tc to proceed to trial with dispatch and the sc said he does not understand the nature and the consequences of his plea. If the accused enters a plea of guilty but he made exception to the circumstance mentioned in the information attending the commission of a crime TC should disregard the plea of guilty and enter for the accused a plea of not guilty and schedule the case for trial on the merits. A plea of guilty will only be accepted if it is clear, it is spontaneous that the accused really has been repentant to admit his guilt for the crime charged. In a case where the penalty was death for a crime committed so the accused upon arraignment so the infor was read to him readily entered a plea of guilty so the court found for the defence counsel that he has already explained everything to the accused so on that score the accused reiterated his plea of guilty, so ordered the case submitted for decision, the court the tc did not inquire why are you entering a plea of guilty? sc ruled that the accused did not understand the consequences of his plea so in such a case where the plea will cause his own life 1 of the requirements that became mandatory under the subsequent case peop vs mandal ???? the court must inquire why he is entering a plea of guilty because if the reason is not really normal(my wife is so cruel to me) the court should not enter a plea of guilty but instead should enter a plea of not guilty. This si the

Twitter: 1226aponz nature of a plea of guilty not just in words but in actuality the substance how it will affect the person entering the plea. It is not enough that he be punished the penalty prescribed under the law violated the court is even required to temper the penalty if under the circumstance of the commission of the crime the accused does not appear to be normal anymore. So that is true when the plea is guilty, if the plea is not guilty it is not much of an importance anymore since after all the case will go to trial. Also important are the instances where the arraignment will be suspended sec 11 of rule 116 among the ground for the suspension of arraignment is when the prejudicial question attend the case on arraignment, I want to call your attention to the definition of prejudicial question under the current revised rules of crimpro, the original concept of a prejudicial question had been changed for the 3rd time under the revised rules of crimpro now to be considered a prejudicial question the civil action where that question arose must have been filed earlier than the criminal action otherwise the question is not considered a prejudicial question anymore even though the resolution of the question may determine whether the accuse should be found guilty or not, whether the criminal case should proceed or not, so you take not of this because I am sure some of the commentaries you are reviewing the old concept is still taken up there that the a question arose in a civil action where the facts involve are similar or intimately related to the issue that arose in a criminal action and that the resolution of that issue or question determine whether the criminal action should proceed or not that is not the issue anymore the issue now is whether the civil action is filed ahead of the criminal action the purpose of the amendment is because there are lawyers who raised purported prejudicial question in a civil action that was filed later than the criminal action precisely to ______ the criminal proceedings the move is obvious in this strategy of the ampatuan trial they try to freeze the proceedings in the main case by invoking some other strategy in the nature of a prejudicial matter, prejudicial question. So among the grounds for suspension and this is the more important there are 3 grounds there know them 2nd matter of importance, in the matter of arraignment is this matter of entering a plea for a crime that is not really properly charged in the information and also where they may be this demurrer that may be raised that a motion for leave becomes necessary this may be done in the guise of prejudicial question, so you have to take note of this otherwise there is no more issue about arraignment 73 and plea. If the arraignment is one of not guilty the case will then go on pre-trial if the case will of a plea of guilty there will be no more pre trial then what becomes important is this may an accused who entered a plea of guilty be acquitted for the crime charged or does it follow that if the accused entered a plea of guilty the decision cannot be no other but that of conviction there are 2 cases on this, in the 1st case peo vs balisicat the accused enters a plea of guilty the tc eventually acquitted him, sc ruled the acquittal is without any legal basis the accused should have been instructed to withdraw the plea of guilty subst. it with a plea of not guilty in w/c case trial should follow otherwise there is no basis to render a judgment of acquittal if there is no trial, but in the subseq case of peo vs Mendoza there are 2 accused 1 entered a plea of guilty , other not guilty, so the case proceeded to trial supposedly on the 1 who entered a plea of not guilty but the court did not then and there sentenced the accused who entered a plea of guilty and the prsoc did not make of record that the trial will proceed only with respect to the 1 who entered a plea of guilty????, so what appears on record is that the trial has been scheduled and the trial went on against the 2 accused, the court received evidence from both parties prosecution and both accused so both parties presented evidence trial was conducted accordingly then the tc rendered a judgment acquitting not only the who entered a plea of not guilty but even the 1 who entered a plea of guilty so on this scope the prosecution headed by the solgen questioned the validity on the judgment of acquittal insofar as the accused who entered a plea of guilty is concerned the accused was not informed by the court to withdraw the former plea of guilty and replaced it with a plea of not guilty but instead the court proceeded to trial after trial case was submitted for decision and the decision came out both accused acquitted, in this resolution of peo vs Mendoza sc made a pronouncement there is no law, no rule of law that commands the court to convict an accused just because he entered a plea of guilty. Since trial followed even under that plea and the rules allowes the court to even enter a plea of guilty or a plea of not guilty, when an accused who enter a plea of guilty and thereafter to proceed to trial the same situation applies here the accused enter a plea of guilty but the court may think that it is an improvident plea. The accused made a plea guilty but the court assessed the case to a plea of not guilty so the case proceeded to trial if under the trial the evidence would show that there is no proof beyond reasonable doubt, evidence that could morally convince the court that a crime is committed even on ground of reasonable doubt the accused should be

Twitter: 1226aponz acquitted. Now in the Balisican case the fact would show the trial court did not conduct any trial so on the mere plea the TC heard a witness for the prosecution thereafter allow the accused say something also there was no trial it was simply a reception of testimony to determine what period the penalty should be imposed because the crime was homicide a penalty of R.T. which is a divisible penalty so the penalty must be imposed only on the proper period and that is why the court receives testimonies to find out at what proper period the penalty shall be imposed. So no trial if there is no trial then there could be no acquittal, the plea of guilty will stand. This is the bottom line of the 2 cases and this is what should guide you if there was a trial even though there is a plea of guilty it would imply that the court is not convince of the plea of guilty because the plea was an improvident plea so the court entered a plea of not guilty and proceeded with the trial even in the light of a plea of guilty the court can acquit the accused but if there was no trial or the court did not really require evidence to be presented, the court cannot go against a plea of guilty.
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