Professional Documents
Culture Documents
General Principles
Remedial Law is that branch of law which prescribes the method of enforcing rights
or obtaining redress for their invasion.1 It is also known as Adjective Law.
Creates, defines and regulates rights and Prescribes the methods of enforcing those
duties regarding life, liberty or property rights and obligations created by substantive
which when violated gives rise to a cause of law by providing a procedural system for
action.2 obtaining redress for the invasion of rights
and violations of duties and by prescribing
rules as to how suits are filed, tried and
decided by the courts.
Declares what acts are crimes and prescribes Provides or regulates the steps by which one
the punishment for committing them.3 who commit a crime is to be punished.4
(a) The rules shall provide a simplified and inexpensive procedure for the speedy
disposition of cases;
(b) They shall be uniform for all courts of the same grade;
1
Bustosvs.Lucero,81Phil.640
2
ibid.
3
asappliedincriminallaw
4
ibid.
(d)The power to admit attorneys to the Bar is not an arbitrary and despotic one, to
be exercised atthe pleasure of the court, or from passion, prejudice or personal hostility, but
is the duty of the court to exercise and regulate it by a sound and judicial discretion.6
(a) When compelling reasons so warrant or when the purpose of justice requires it.7
(b) To relieve a litigant of an injustice commensurate with his failure to comply with
the prescribed procedure and the mere invocation of substantial justice is not a magical
incantation that will automatically compel the Court to suspend procedural rules.8
(d) When transcendental matters of life, liberty or state security are involved.10
(e) The constitutional power of the Supreme Court to promulgate rules of practice
and procedure necessarily carries with it the power to overturn judicial precedents on points
of remedial law through the amendment of the Rules of Court.11
5
Sec.5[5],Art.VIII,Constitution
6
Andresvs.Cabrera,127SCRA802
7
What constitutes a good and sufficient cause that would merit suspension of the rules is discretionary
uponcourts(CIRv.MigrantPagbilaoCorp.,GR159593,Oct.12,2006)
ReasonsthatwouldwarrantthesuspensionoftheRules:
(a)theexistenceofspecialorcompellingcircumstances
(b)meritsofthecase
(c)causenotentirelyattributabletothefaultornegligenceofthepartyfavoredbythesuspensionof
rules
(d)alackofanyshowingthatthereviewsoughtismerelyfrivolousanddilatory,and
(e) the other party will not be unjustly prejudiced thereby (Sarmiento v. Zaratan, GR 167471, Feb. 5,
2007)
8
CuUnjiengv.CA,479SCRA594
9
Pagbilao,supra
10
MindanaoSavingsLoanAsso.V.VicentaVda.DeFlores,469SCRA416
11
Pingavs.HeirsofSantiago,G.R.170354,June30,2006
12
Hence,bothlegalandequitablejurisdictionisdispensedwithinthesametribunal(USv.Tamparong,31
Phil.321)
1. Meaning of a court
The entity in the government organized for the proper administration of justice at
the time and place prescribed by law. It is an entity in which a portion of the judicial power
is vested.13
Court Judge
(a) First Level MTCs, MeTCs, MCTCs Which try and decide
13
Lontokvs.Batting,63Phil655
14
Hidalgov.Manglapus,64O.G.3189
(b) Second Level RTCs, Family Courts15 Civil actions in which the subject of litigation
is
15
courtsofgeneraljurisdiction
Theyexerciseappellatejurisdiction(reviewcasesappealedfromcourtsofthefirstlevel)
16
forcibleentryandunlawfuldetainer
17
RTCsalsoexerciseappellatejurisdictiontoreviewcasesappealedfromcourtsofthefirstlevel.
18
Occasionally,CAmayactasatrialcourt,asinactionsprayingfortheannulmentoffinalandexecutory
judgments of RTCs on the ground of extrinsic fraud subsequently discovered, against which no other
remedylies.
When actions or proceedings are originally When they have the power of review over
filed with it.19 the decisions or orders of a lower court.20
19
MeTCs,MCTCsandMTCsarecourtsoforiginaljurisdictionwithoutappellatejurisdiction.RTCislikewise
a court of original jurisdiction with respect to cases originally filed with it; and appellate court with
respecttocasesdecidedbyMTCswithinitsterritorialjurisdiction.(Sec.22,BP129)
20
CAisprimarilyacourtofappellatejurisdictionwithcompetencetoreviewjudgmentsoftheRTCsand
specifiedquasijudicialagencies(Sec.9[3],BP129).Itisalsoacourtoforiginaljurisdictionwithrespectto
casesfiledbeforeitinvolvingissuanceofwritsofcertiorari,mandamus,quowarranto,habeascorpus,and
prohibition.CAisacourtoforiginalandexclusivejurisdictionoveractionsforannulmentofjudgmentsof
RTCs(Sec.9[1],[2],BP129).
TheSCisfundamentallyacourtofappellatejurisdictionbutitmayalsobeacourtoforiginaljurisdiction
overcasesaffectingambassadors,publicministersandconsuls,andincasesinvolvingpetitionsfor
certiorari,prohibitionandmandamus(Sec.5[1],Art.VIII,Constitution).TheSupremeCourtenbancisnot
anappellatecourttowhichdecisionsorresolutionsofadivisionoftheSupremeCourtmaybeappealed.
Those with competence to decide on their Those which have only a special jurisdiction
own jurisdiction and to take cognizance of for a particular purpose or are clothed with
all cases, civil and criminal, of a particular special powers for the performance of
nature.22 specified duties beyond which they have no
authority of any kind.
Decide a case according to the existing laws. Adjudicate a controversy according to the
common precepts of what is right and just
without inquiring into the terms of the
statute.
21
limited
22
Acourtmayalsobeconsideredgeneralifithasthecompetencetoexercisejurisdictionovercasesnot
falling within the jurisdiction of any court, tribunal, person or body exercising judicial or quasijudicial
functions.ItisinthecontextthattheRTCisconsideredacourtofgeneraljurisdiction.
23
Example of this court is the SC, which owes its creation from the Constitution itself. Only the SC is a
Constitutionalcourt.
24
AllcourtsexcepttheSCarestatutorycourts.SBwasnotdirectlycreatedbytheConstitutionbutby
lawpursuanttoaconstitutionalmandate.
A higher court will not entertain direct resort to it unless the redress cannot be
obtained in the appropriate courts.25
Courts of equal and coordinate jurisdiction cannot interfere with each others
orders.27 The principle also bars a court from reviewing or interfering with the judgment of a
co-equal court over which it has no appellate jurisdiction or power of review.28
II. Jurisdiction
25
TheSCisacourtoflastresort.Itcannotandshouldnotbeburdenedwiththetaskofdecidingcasesin
thefirstinstances.Itsjurisdictiontoissueextraordinarywritsshouldbeexercisedonlywhereabsolutely
necessaryorwhereseriousandimportantreasonsexist.
PetitionsfortheissuanceofextraordinarywritsagainstfirstlevelcourtsshouldbefiledwiththeRTCand
thoseagainstthelatterwiththeCA.AdirectinvocationoftheSCsoriginaljurisdictiontoissuethesewrits
should be allowed only where there are special and important reasons therefor, clearly and specifically
setoutinthepetition.
Thedoctrineofhierarchyofcourtsmaybedisregardedifwarrantedbythenatureandimportanceofthe
issuesraisedintheinterestofspeedyjusticeandtoavoidfuturelitigations,orincasesofnationalinterest
andofseriousimplications.
26
Sec.9[1],BP129;Sec.5[1],Art.VIII,ConstitutionofthePhilippines
ByhierarchyofcourtsismeantthatwhiletheSupremeCourt,theCourtofAppeals,andtheRegional
TrialCourtshaveconcurrentoriginaljurisdictiontoissuewritsofcertiorari,prohibition,mandamus,quo
warrantoandhabeascorpus,suchoccurrencedoesnotaccordlitigantsunrestrainedfreedomofchoiceof
thecourttowhichapplicationthereforemaybedirected.Theapplicationshouldbefiledwiththecourtof
lowerlevelunlesstheimportanceoftheissueinvolveddeservestheactionofthecourtofhigherlevel.
(Uyvs.Contreras,237SCRA167)
27
Thus, the RTC has no power to nullify or enjoin the enforcement of a writ of possession issued by
anotherRTC.
28
This doctrine applies with equal force to administrative bodies. When the law provides for an appeal
fromthedecisionofanadministrativebodytotheSCorCA,itmeansthatsuchbodyiscoequalwiththe
RTCintermsofrankandstature,andlogicallybeyondthecontrolofthelatter.
It is the power to deal with the general subject involved in the action, and means not
simply jurisdiction of the particular case then occupying the attention of the court but
jurisdiction of the class of cases to which the particular case belongs. It is the power or
authority to hear and determine cases to which the proceeding in question belongs.33
29
Themodeofacquisitionofjurisdictionovertheplaintiffandthedefendantappliestobothordinaryand
specialcivilactionslikemandamusorunlawfuldetainercases.
30
Thispresupposespaymentofthedocketfees.
This applies even to a nonresident plaintiff when, by filing his complaint in a Philippine court, he
submitshimselftothejurisdictionofsaidcourt.
31
Jurisdiction over the person of the defendant is required only in an action in personam; it is not a
prerequisiteinanactioninremandquasiinrem.Inanactioninpersonam,jurisdictionoverthepersonis
necessaryforthecourttovalidlytryanddecidethecase,whileinaproceedinginremorquasiinrem,
jurisdiction over the person of the defendant is not a prerequisite to confer jurisdiction on the court,
providedthelatterhasjurisdictionovertheres.
32
SeeSec.20,Rule14,RoC
Instances when appearance of defendant is not tantamount to voluntary submission to the
jurisdictionofthecourt:
(a)whendefendantfilesthenecessarypleading;
(b)whendefendantfilesamotionforreconsiderationofthejudgmentbydefault;
(c)whendefendantfilesapetitiontosetasidethejudgmentofdefault;
(d)whenthepartiesjointlysubmitacompromiseagreementforapprovalofthecourt;
(e)whendefendantfilesananswertothecontemptcharge;
(f) when defendant files a petition for certiorari without questioning the courts jurisdiction over his
person.
33
JurisdictionoverthesubjectmatterornatureoftheactionisconferredbytheConstitutionorbylaw.
(Zamoravs.CA,183SCRA279[1990])
The power or authority of a court to hear, The exercise of the authority to decide a
try and decide a case.34 case. It is the process by which the authority
to decide a case is put into action. It is,
unless otherwise provided by the law itself,
governed by the Rules of Court or by orders
which are, from time to time, issued by the
Supreme Court.35
One where the act complained of was issued One which the court may commit in the
by the court without or in excess of exercise of its jurisdiction. As long as the
jurisdiction. It occurs when the court court acts within its jurisdiction, any alleged
exercises a jurisdiction not conferred upon it errors committed in the exercise of its
by law, or when the court or tribunal discretion will amount to nothing more than
although with jurisdiction, acts in excess of mere errors of judgment.37
its jurisdiction or with grave abuse of
discretion amounting to lack of jurisdiction.36
Correctible by appeal
Correctible only by the extraordinary writ of
certiorari.
34
Zamoravs.CA,supra
35
OfficeoftheCourtAdministratorvs.Matas,63SCAD332,247SCRA9(1995)
36
Whenacourt,tribunal,orofficerhasjurisdictionoverthepersonandthesubjectmatterofthedispute,
thedecisiononallotherquestionsarisinginthecaseisanexerciseofthatjurisdiction.Consequently,all
errors committed in the exercise of said jurisdiction are merely errors of judgment. Under prevailing
proceduralrulesandjurisprudence,errorsofjudgmentarenotpropersubjectsofaspecialcivilactionfor
certiorari.
Anyjudgmentrenderedwithoutjurisdictionisatotalnullityandmaybestruckdownatanytime,evenon
appeal;theonlyexceptioniswhenthepartyraisingtheissueisbarredbyestoppel.
37
Errorsofjudgmentincludeerrorsofprocedureormistakesinthecourtsfindings.
It is the duty of the court to consider the question of jurisdiction before it looks at
other matters involved in the case. If the court finds that it has jurisdiction, it is the duty of
the court to exercise the jurisdiction conferred upon it by law and to render a decision in a
case properly submitted to it.It cannot decline to exercise its jurisdiction. Failure to do so
may be enforced by way of mandamus proceeding.
Courts will not resolve a controversy involving a question which is within the
jurisdiction of an administrative tribunal, especially where the question demands the exercise
of sound administrative discretion requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and intricate matters of fact.38
Once a court has acquired jurisdiction, that jurisdiction continues until the court has
done all that it can do in the exercise of that jurisdiction.
This principle also means that once jurisdiction has attached, it cannot be ousted by
subsequent happenings or events, although of a character which would have prevented
jurisdiction from attaching in the first instance. The court, once jurisdiction has been
acquired, retains that jurisdiction until it finally disposes of the case.39
Jurisdiction over the subject matter may be raised at any stage of the proceedings,
even for the first time on appeal.40
38
Theobjectiveistoguideacourtindeterminingwhetheritshouldrefrainfromexercisingitsjurisdiction
until after an administrative agency has determined some question or some aspect of some question
arisingintheproceedingbeforethecourt(Omictinvs.CA,GR148004,January22,2007).
39
Eventhefinalityofthejudgmentdoesnottotallydeprivethecourtofjurisdictionoverthecase.
Whatthecourtlosesisthepowertoamend,modifyoralterthejudgment.Evenafterthejudgmenthas
becomefinal,thecourtretainsjurisdictiontoenforceandexecuteit(Echegarayvs.SecretaryofJustice,
301SCRA96).
40
When the court dismisses the complaint for lack of jurisdiction over the subject matter, it is common
reason that the court cannot remand the case to another court with the proper jurisdiction. Its only
poweristodismissandnottomakeanyotherorder.
When it appears from the pleadings or evidence on record that the court has no jurisdiction over the
subjectmatter,thecourtshalldismissthesame(Sec.1,Rule9).Thecourtmayonitsowninitiativeobject
toanerroneousjurisdictionandmayexmeromotutakecognizanceoflackofjurisdictionatanypointin
thecaseandhasaclearlyrecognizedrighttodetermineitsownjurisdiction.
10
Under the omnibus motion rule, a motion attacking a pleading like a motion to
dismiss shall include all grounds then available and all objections not so included shall be
deemed waived. The defense of lack of jurisdiction over the subject matter is however, a
defense not barred by the failure to invoke the same in a motion to dismiss already filed.
Even if a motion to dismiss was filed and the issue of jurisdiction was not raised therein, a
party may, when he files an answer, raise the lack of jurisdiction as an affirmative defense
because this defense is not barred under the omnibus motion rule.
It is the power of the court to try and decide issues42 raised in the pleadings of the
parties.
It is the courts jurisdiction over the thing or the property which is the subject of the
43
action.
41
Jurisprudence, however, did not intend this statement to lay down the general rule (Lapanday
Agricultural&DevelopmentCorp.v.Estita,449SCRA240;Mangaiagv.CatubigPastoral,474SCRA153).
Thedoctrineofestoppelbylachesinrelationtoobjectionstojurisdictionfirstappearedinthelandmark
caseofTijam vs.Sibonghanoy(23SCRA29)wheretheSCbarredabelatedobjectiontojurisdictionthat
wasraisedonlyafteranadversedecisionwasrenderedbythecourtagainstthepartyraisingtheissueof
jurisdictionandafterseekingaffirmativerelieffromthecourtandafterparticipatinginallstagesofthe
proceedings. This doctrine is based upon grounds of public policy and is principally a question of the
inequityorunfairnessofpermittingarightorclaimtobeenforcedorasserted.
TheSibonghanoycaseappliesonlytoexceptionalcircumstances.Thegeneralruleremains:acourtslack
of jurisdiction may be raised at any stage of the proceedings even on appeal. (Francel Realty Corp. v.
Sycip,469SCRA424;Concepcionv.Regalado,GR167988,Feb.6,2007)
TheSCfrownsupontheundesirablepracticeofsubmittingonescasefordecision,andthenacceptingthe
judgmentonlyiffavorable,butattackingitforlackofjurisdictionifitisnot(BPIv.ALSMgt.&Devt.Corp.,
427SCRA564)
42
Anissueisadisputedpointorquestiontowhichpartiestoanactionhavenarroweddowntheirseveral
allegationsanduponwhichtheyaredesirousofobtainingadecision.Wherethereisnodisputedpoint,
thereisnoissue.
Generally, jurisdiction over the issues is conferred and determined by the pleadings of the parties. The
pleadingspresenttheissuestobetriedanddeterminewhetherornottheissuesareoffactorlaw.
Jurisdictionovertheissuesmayalsobedeterminedandconferredbystipulationofthepartiesaswhenin
the pretrial, the parties enter into stipulations of facts and documents or enter into agreement
simplifyingtheissuesofthecase.
Itmayalsobeconferredbywaiverorfailuretoobjecttothepresentationofevidenceonamatternot
raisedinthepleadings.Herethepartiestrywiththeirexpressorimpliedconsentissuesnotraisedbythe
pleadings.Theissuestriedshallbetreatedinallrespectsasiftheyhadbeenraisedinthepleadings.
43
Jurisdictionovertheresmaybeacquiredbythecourtbyplacingthepropertyofthingunderitscustody
(custodialegis).Example:attachmentofproperty.
11
E. Jurisdiction of Courts
Itmayalsobeacquiredbythecourtthroughstatutoryauthorityconferringuponitthepowertodealwith
the property or thing within the courts territorial jurisdiction.Example: suits involving the status of the
partiesorsuitsinvolvingthepropertyinthePhilippinesofnonresidentdefendants
Jurisdictionovertheresisacquiredbytheseizureofthethingunderlegalprocesswherebyitisbrought
intoactualcustodyoflaw,oritmayresultfromtheinstitutionofalegalproceedingwhereinthepowerof
thecourtoverthethingisrecognizedandmadeeffective(BancoEspaolFilipinovs.Palanca,37Phil.291)
44
appealbycertiorariunderRule45
45
ExceptionsinwhichfactualissuesmayberesolvedbytheSupremeCourt:
(a)Whenthefindingsaregroundedentirelyonspeculation,surmisesorconjectures;
(b)Whentheinferencemadeismanifestlymistaken,absurdorimpossible;
(c)Whenthereisgraveabuseofdiscretion;
(d)Whenthejudgmentisbasedonmisapprehensionoffacts;
(e)Whenthefindingsoffactsareconflicting;
(f)Wheninmakingitsfindings,theCAwentbeyondtheissuesofthecase,oritsfindingsarecontrary
totheadmissionsofboththeappellantandtheappellee;
(g)Whenthefindingsarecontrarytothetrialcourt;
(h)Whenthefindingsareconclusionswithoutcitationofspecificevidenceonwhichtheyarebased;
(i)Whenthefactssetforthinthepetitionaswellasinthepetitionersmainandreplybriefsarenot
disputedbytherespondent;
(j) When the findings of fact are premised on the supposed absence of evidence and
contradictedbytheevidenceonrecord;and
(k)WhentheCourtofAppealsmanifestlyoverlookedcertainrelevantfactsnotdisputedbytheparties,
which,ifproperlyconsidered,couldjustifyadifferentconclusion.
46
In PP vs. Mateo (2004), the SC held that while the Fundamental Law requires a mandatory
reviewbytheSCofcaseswherethepenaltyimposedisreclusionperpetua,lifeimprisonmentor
death, nowhere however, has it proscribed an intermediate review. If only to ensure utmost
12
Civil Cases
circumspectionbeforethepenaltyofreclusionperpetua,lifeimprisonmentordeathisimposed,theCourt
now deems it wise and compelling to provide in these cases a review by the CA before the case is
elevatedtotheSC.ApriordeterminationbytheCAon,particularly,thefactualissues,wouldminimize
thepossibilityofanerrorofjudgment.IftheCAshouldaffirmthepenaltyofreclusionperpetua,life
imprisonmentordeath,itcouldthenrenderjudgmentimposingthecorrespondingpenaltyasthe
circumstancessowarrant,refrainfromenteringjudgmentandelevatetheentirerecordsofthecaseto
theSCforfinaldisposition.
47
supra
48
appealbycertiorariunderRule45
13
a) With the SC
a) Notice of Appeal:
50
i.e.nonoticeofappealisnecessary
51
Sec.3,Rule122,asamendedbyAMNo.00503SC
14
Civil Cases
a)By way of ordinary appeal from the RTC and the Family
Courts.
b)By way of petition for review from the RTC rendered by the
RTC in the exercise of its appellate jurisdiction.
49
UnderR.A.9282andRule5,A.M.051107SC
15
(2) other matters arising under the Customs law or other laws,
part of laws or special laws administered by BOC;
52
SecuritiesandExchangeCommission,OfficeofthePresident,LandRegistrationAuthority,SocialSecurity
Commission, Civil Aeronautics Board, Bureau of Patents, Trademarks and Technology Transfer, National
Electrification Administration, Energy Regulatory Board, National Telecommunications Commission,
Department of Agrarian Reform under Republic Act No. 6657, Government Service Insurance System,
Employees Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine
Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission, and
voluntaryarbitratorsauthorizedbylaw(Sec.1)
53
however,thisshouldbefiledwiththeCAasperSt.MartinFuneralHomecase
54
supra
55
This is because decisions of MTCs in these cases are appealable in the same manner as decisions of
RTCs.ThereisnoactiontoannulthedecisionoftheCA.
16
a) In criminal offenses
56
An Act Protecting Local Industries By Providing Safeguard Measures to be Undertaken In Response to
IncreasedImportsandProvidingPenaltiesForViolationthereof.
57
the offenses or penalties shall be tried by the regular courts and the jurisdiction of the CTA shall be
appellate
17
58
AntiGraftandCorruptPracticesAct
59
AntiIllGottenWealthAct
60
E.O.Nos.1,2,14,14A
61
ChapterII,Sec.2,TitleVII,BookII,RPC
62
R.A.6758
63
withoutprejudicetotheprovisionsoftheConstitution
64
Ibid.
65
(a) Provincial governors, vicegovernors, members of the sangguniang panlalawigan and provincial
treasurers,assessors,engineersandotherprovincialdepartmentheads;
(b) City mayors, vicemayors, members of the sangguniang panlungsod, city treasurers, assessors
engineersandothercitydepartmentheads;
(c)Officialsofthediplomaticserviceoccupyingthepositionofconsulandhigher;
(d)Philippinearmyandairforcecolonels,navalcaptains,andallofficersofhigherrank;
(e) Officers of the Philippine National Police while occupying the position of provincial director and
thoseholdingtherankofseniorsuperintendentorhigher;
(f)Cityandprovincialprosecutorsandtheirassistants,andofficialsandprosecutorsintheOfficeofthe
Ombudsmanandspecialprosecutor;
18
Civil Cases
19
70
generaljurisdictionofRTC
71
Sec.52,SecuritiesandRegulationsCode
20
21
72
FamilyCode
73
InareaswheretherearenoFamilyCourts,theaboveenumeratedcasesshallbeadjudicatedbytheRTC
(id.)
74
BouncingCheckLaw
22
Civil actions
75
Incaseswheretheonlypenaltyisfine,theamountthereofshalldeterminejurisdiction.Iftheamount
doesnotexceedP4,000,theMTChasjurisdiction.
76
Sec.2,R.A.7691
77
Do not include Interest, Damages of whatever kind, Attorneys fees, Litigation Expenses, and Costs
(IDALEC).However,incaseswheretheclaimordamagesisthemaincauseofaction,oroneofthecauses
ofaction,theamountofsuchclaimshallbeconsideredindeterminingthejurisdictionofthecourt.
78
testateandintestate
23
79
Withjurisdictiontoresolveissueofownershiptodetermineonlyissueofpossession
Irrespectiveoftheamountofdamagesorunpaidrentalssoughttoberecovered
Whereattorneysfeesareawarded,thesameshallnotexceedP20,000
24
Small claims (1) MTCs, MeTCs and MCTCs shall have jurisdiction over
actions for payment of money where the value of the claim does
not exceed P100,000, exclusive of interest and costs.81
(a) purely civil in nature where the claim or relief prayed for
by the plaintiff is solely for payment or reimbursement of sum of
money;
(b) the civil aspect of criminal actions, either filed before the
institution of the criminal action, or reserved upon the filing of
the criminal action in court;82 and
80
Casesthatcanbefiled:
1)OffensesdefinedandpunishedunderP.D.1083
2)Disputesrelatingto:
i.Marriage
ii.Divorce
iii.Betrothalorbreachofcontracttomarry
iv.Customarydowry(mahr)
v.Dispositionanddistributionofpropertyupondivorce
vi.Maintenanceandsupportandconsolatorygifts(muta)
vii.Restitutionofmaritalrights
3)Disputesrelativetocommunalproperties
81
Sec.2,AM0887SC,Oct.27,2009
82
pursuanttoRule111(Sec.4,id.)
Theseclaimsmaybe:
i.Formoneyowedunderthecontractsoflease,loan,services,sale,ormortgage;
ii.Fordamagesarisingfromfaultornegligence,quasicontract,orcontract;
25
(2) All other cases, except probate proceedings, where the total
amount of the plaintiffs claim does not exceed P100,000 outside
MM or P200,000 in MM, exclusive of interest and costs.
Criminal Cases
Cases covered by the The Lupon of each barangay shall have the authority to bring
Rules on Barangay together the parties actually residing in the same municipality or
Conciliation city for amicable settlement of all disputes except:
83
pursuanttoSec.417ofRA7160(LGC)
84
Sec.1,RSP
85
RSPdoesnotapplytoacivilcasewheretheplaintiffscauseofactionispleadedinthesamecomplaint
withanothercauseofactionsubjecttotheordinaryprocedure;nortoacriminalcasewheretheoffense
chargedisnecessarilyrelatedtoanothercriminalcasesubjecttotheordinaryprocedure.
86
Whereattorneysfeesareawarded,thesameshallnotexceedP20,000;
26
G. Totality Rule
87
The reason is that only individuals shall be parties to barangay conciliation proceedings either as
complainantsorrespondents
27
Where there are several claims or causes of action between the same complaint, the
amount of the demand shall be the totality of the claims in all the causes of action,
irrespective of whether the causes of action arose out of the same or different transactions.
The totality rule applies only if the main cause of action is for damages; if not, then the
totality rule does not apply. Totality rule does not apply if damages are merely incidental to
or a consequence of the main action.88
A. Actions
88
Sec.33ofB.P.129,asfurtherexplainedbyR.A.7691andAdministrativeCircularNo.0994
Wherethereareseveralclaimsorcausesofactionsbetweenthesameordifferentparties,embodiedin
the same complaint, the amount of the demand shall be the totality of the claims in all the claims of
action,irrespectiveofwhetherthecausesofactionaroseoutofthesameordifferenttransactions.(Sec.
33[1],i.d.)
28
Action89is the legal and formal demand of ones right from another person made and
insisted upon in a court of justice.90
One by which one party sues another, based on a cause of action, to enforce or
protect a right, or to prevent or redress a wrong, whereby the defendant has performed an
act or omitted to do an act in violation of the rights of the plaintiff.91
Actions which, while governed by the rules for ordinary civil actions, are subject to
special rules provided for Special Civil Actions.
One by which the State prosecutes a person for an act or omission punishable by
law.92
89
synonymouswithsuit
90
BouviersLawDictionary
The kinds of actions are ordinary and special, civil and criminal, ex contractu and ex delicto, penal and
remedial,real,personal,andmixedaction,actioninpersonam,inrem,andquasiinrem.
91
Sec.3(a),Rule1
Thepurposeisprimarilycompensatory.
92
Sec.3[b],id.
Thepurposeisprimarilypunishment.
93
The distinction between real action and personal action is important for the purpose of
determiningthevenueoftheaction.Arealactionislocal,whichmeansthatitsvenuedependsupon
29
It affects title to or possession of real All other actions are personal actions.
property, or an interest therein.94
Must be brought in a particular place, in the Generally, must be brought where the party
absence of an agreement to the contrary resides regardless of where the cause of
action arose
Founded on privity of estates only and there Founded on privity of contracts between the
is no privity of contracts.95 parties.96
thelocationofthepropertyinvolvedinthelitigation.Apersonalactionistransitory,whichmeansthat
itsvenuedependsupontheresidenceoftheplaintifforthedefendantattheoptionoftheplaintiff.
94
Anactionisrealwhenitisfoundedupontheprivityofrealestate,whichmeansthattherealtyoran
interest therein is the subject matter of the action. The issues involved in real actions are title to,
ownership,possession,partition,foreclosureofmortgageorcondemnationofrealproperty.
Noteveryactioninvolvingrealpropertyisarealactionbecausetherealtymayonlybeincidentaltothe
subjectmatterofthesuit.Exampleisanactionfordamagestorealproperty,whileinvolvingrealtyisa
personal action because although it involves real property, it does not involve any of the issues
mentioned.
95
Arealactionisalocalaction;itsvenuedependsuponthelocationofthepropertyinvolvedinlitigation.
Actionsaffectingtitletoorpossessionofrealproperty,orinteresttherein,shallbecommencedandtried
inthepropercourtwhichhasjurisdictionovertheareawhereintherealpropertyinvolved,oraportion
thereofissituated(Sec.1,Rule4).
96
Apersonalactionistransitory;itsvenuedependsupontheresidenceoftheplaintifforthedefendantat
theoptionoftheplaintiff.Apersonalactionmaybecommencedandtriedwheretheplaintifforanyof
theprincipalplaintiffsresides,orwherethedefendantoranyoftheprincipaldefendantsresides,orinthe
caseofanonresidentdefendant,wherehemaybefound,attheelectionoftheplaintiff(Sec.2,Rule4).
97
Thedistinctionisimportanttodeterminewhetherornotjurisdictionoverthepersonofthedefendantis
required and consequently to determine the type of summons to be employed. Jurisdiction over the
30
Directed against the thing Directed against particular Directed against particular
itself persons persons
personofthedefendantisnecessaryforthecourttovalidlytryanddecideacaseagainstsaiddefendant
wheretheactionisoneinpersonambutnotwheretheactionisinremorquasiinrem.
Basicrules:
Thequestionofwhetherthetrialcourthasjurisdictiondependsonthenatureoftheactionwhether
theactionisinpersonam,inrem,orquasiinrem.TherulesonserviceofsummonsunderRule14likewise
applyaccordingtothenatureoftheaction.
Anactioninpersonamisanactionagainstapersononthebasisofhispersonalliability.Anactionin
rem is an action against the thing itself instead of against the person. An action quasi in rem is one
whereinanindividualisnamedasdefendantandthepurposeoftheproceedingistosubjecthisinterest
thereintotheobligationorlienburdeningtheproperty.
In an action in personam, jurisdiction over the person of the defendant is necessary for the court to
validlytryanddecidethecase.Inaproceedinginremorquasiinrem,jurisdictionoverthepersonofthe
defendant is not a prerequisite to confer jurisdiction over the res. Jurisdiction over the res is acquired
either(1)bytheseizureofthepropertyunderlegalprocess,wherebyitisbroughtintoactualcustodyof
the law; or (2) as a result of the institution of legal proceedings, in which the power of the court is
recognizedandmadeeffective.
Nonetheless, summonsmustbeserved uponthedefendant not for thepurposeofvestingthe court
withjurisdictionbutmerelyforsatisfyingthedueprocessrequirements(Biacovs.PhilippineCountryside
RuralBank,G.R.161417,February8,2007)
98
Ex.Landregistrationcase;probateproceedingsforallowanceofawill
99
Ex.actiontorecoverdamages;actionforbreachofcontract
Jurisdiction overthe person (defendant) isrequired.It is a proceeding toenforce personal rights and
obligationsbroughtagainsttheperson,andarebasedonthejurisdictionoftheperson,althoughitmay
involvehisrightto,ortheexerciseofownershipof,specificproperty,orseektocompelhimtocontrolor
dispose of it in accordance with the mandate of the court. The purpose is to impose through the
judgmentofacourt,someresponsibilityorliabilitydirectlyuponthepersonofthedefendant.Noother
than the defendant is liable, not the whole world, as in an action for a sum of money or an action for
damages.
100
Ex.Unlawfuldetainerorforcibleentry;judicialforeclosureofmortgage.
Anindividualisnamedasdefendantandthepurposeoftheproceedingistosubjecthisintereststherein
totheobligationorloanburdeningtheproperty.Itdealswithstatus,ownershiporliabilityoraparticular
propertybutwhichareintendedtooperateonthesequestionsonlyasbetweentheparticularpartiesto
theproceedingsandnottoascertainorcutofftherightsorinterestsofallpossibleclaimants.Examples
ofactions quasiinremareactionforpartition,actionforaccounting,attachment,foreclosureof
mortgage.
31
Those provided in Articles 32, 33, 34 and 2176103 of the Civil Code.
They may proceed independently of the criminal action and shall require only a
preponderance of evidence.
B. Cause of Action105
It is the delict or wrong by which the defendant violates the right or rights of the
plaintiff.108
101
For instance, an action to recover title to or possession of real property is a real action, but it is an
actioninpersonam,notbroughtagainstthewholeworldbutagainstthepersonuponwhomtheclaimis
made.
102
Ibid.
103
seeReference
104
www.batasnatin.com
105
Rule2
106
defendant
107
plaintiff
108
MaaoSugarCentralv.Barrios,76Phil.666
Elements:
(a)Arightinfavoroftheplaintiffbywhatevermeansandunderwhateverlawitarisesoriscreated;
(b)Anobligationonthepartofthenameddefendanttorespectornottoviolatesuchright;and
(c)Actoromissiononthepartofsuchdefendantinviolationoftherightoftheplaintifforconstitutinga
breachoftheobligationofthedefendanttotheplaintiffforwhichthelattermaymaintainanactionfor
recoveryofdamagesorotherappropriaterelief.
32
The reason for the action The remedy or means afforded or the
consequent relief
The formal statement of alleged facts Right that is given the right to litigate
because of the occurrence of the alleged
facts
It does not mean that the plaintiff has no cause of action. It only means that the
plaintiffs allegations are insufficient for the court to know that the rights of the plaintiff
were violated by the defendant.110
The mere existence of a cause of action is not sufficient for a complaint to prosper.
Even if in reality the plaintiff has a cause of action against the defendant, the complaint may
be dismissed if the complaint or the pleading asserting the claim states no cause of
action.111
109
Arightofactionmaybetakenawaybytherunningofthestatuteoflimitations,byestoppelorother
circumstanceswhichdonotatallaffectthecauseofaction(Marquezv.Varela,92Phil.373).
110
Thus, even if indeed the plaintiff suffered injury, if the same is not set forth in the complaint, the
pleading will state no cause of action even if in reality the plaintiff has a cause of action against the
defendant.
111
Thismeansthatthecauseofactionmustunmistakablybestatedorallegedinthecomplaintorthatall
the elements of the cause of action required by substantive law must clearly appear from the mere
readingofthecomplaint.Toavoidanearlydismissalofthecomplaint,thesimpledictumtobefollowedis:
Ifyouhaveacauseofaction,thenbyallmeans,stateit!
33
The test is whether or not admitting the facts alleged, the court could render a valid
verdict in accordance with the prayer of the complaint.112
To be taken into account are only the material allegations in the complaint;
extraneous facts and circumstances or other mattersaliunde are not considered but the court
may consider in addition to the complaint the appended annexes or documents, other
pleadings of the plaintiff, or admissions in the records.113
It is the act of instituting two or more suits for the same cause of action.115
It is the practice of dividing one cause of action into different parts and making each
part the subject of a separate complaint.116
The filing of the first may be pleaded in abatement of the other or others and a
judgment upon the merits in any one is available as a bar to, or a ground for dismissal of the
others.117
112
MisamisOccidentalIICooperative,Inc.vs.David,468SCRA63;Santosv.deLeon,470SCRA455
113
Zepedav.ChinaBankingCorp.,G.R.172175,Oct.9,2006
114
Diazv.Diaz,331SCRA302
115
Sec.4,Rule2
Appliesnotonlytocomplaintsbutalsotocounterclaimsandcrossclaims.
In splitting a cause of action, the pleader divides a single cause of action, claim or demand into two or
more parts, brings a suit for one of such parts with the intent to reserve the rest for another separate
action(Quadravs.CA,GR147593,July31,2006).
This practiceisnotallowedbytheRulesbecauseitbreedsmultiplicity ofsuits,clogsthecourtdockets,
leads to vexatious litigation, operates as an instrument of harassment, and generates unnecessary
expensestotheparties.
Remedyagainstsplittingasinglecauseofaction:
A.Motiontodismissonthegroundof:
(1)Litispendentia,ifthefirstcomplaintisstillpending(Rule16,Sec.1[e]);or
(2)Resjudicata,ifanyofthecomplaintsisterminatedbyfinaljudgment(Rule16,Sec.1[f])
B.Ananswerallegingeitheroftheabovecitedgroundsasaffirmativedefense(Rule16,Sec.6)
116
Bachrachvs.Icaringal,68SCRA287
117
Sec.4,Rule2;BacolodCityvs.SanMiguel,Inc.,L2513,Oct.30,1969
34
The assertion of as many causes of action as Not a ground for the dismissal of the case.
a party may have against another in one When there is a misjoinder of causes of
pleading alone.118 action, the erroneously joined cause of action
can be severed or separated from the other
It is the process of uniting two or more cause of action upon motion by a party or
demands or rights of action in one action, upon the courts own initiative.123
subject to the following conditions:
118
Sec.5
119
The joinder of causes of action may involve the same or different parties. If the joinder involved
differentparties,itmustcomplywithSec.6Rule3,thus,theremustbeaquestionoffactorlawcommon
tobothpartiesjoinedarisingoutofthesameorseriesoftransactions.
120
Itrequiresthat:onlycausesofactioninordinarycivilactionsmaybejoined,obviouslybecausethey
aresubjecttothesamerules
121
AslongasonecauseofactionfallswithinthejurisdictionoftheRTC,thecasecanbefiledthereevenif
theMTChasjurisdictionovertheothers.
122
Totalityrule
Restrictionsonjoinderofcausesofactionare:jurisdiction,venue,andjoinderofparties.Thejoindershall
notincludespecialcivilactionsoractionsgovernedbyspecialrules.
123
Sec.6
35
124
Sec.2,Rule3
The interest must be real, which is a present substantial interest as distinguished from a mere
expectancy or a future, contingent subordinate or consequential interest (Fortich vs. Corona, 289 SCRA
624). It is an interest that is material and direct, as distinguished from a mere incidental interest in
question(Samaniegovs.Aguila,334SCRA438).Whileordinarilyonewhoisnotaprivytoacontractmay
notbringanactiontoenforceit,therearerecognizedexceptionstothisrule:
(a)Contractscontainingstipulationspouratruiorstipulationsexpresslyconferringbenefitstoanon
partymaysueunderthecontractprovidedsuchbenefitshavebeenacceptedbythebeneficiarypriorto
itsrevocationbythecontractingparties(Art.1311,CivilCode).
(b) Those who are not principally or subsidiarily obligated in the contract, in which they had no
intervention,mayshowtheirdetrimentthatcouldresultfromit.Forinstance,Art.1313,CC, provides
that creditors are protected in cases of contracts intended to defraud them. Further, Art. 1318, CC,
providesthatcontractsenteredintoinfraudofcreditorsmayberescindedwhenthecreditorscannotin
any manner collect the claims due them. Thus, a creditor who is not a party to a contract can sue to
rescindthecontracttoredressthefraudcommitteduponhim.
125
Sec.7,Rule3
Withoutthepresenceofthisparty,thejudgmentofacourtcannotattainrealfinality(DeCastrovs.CA,
384SCRA607).Thepresenceofindispensablepartiesisaconditionfortheexerciseofjuridicalpowerand
whenanindispensablepartyisnotbroughtbeforethecourt,theactionshouldbedismissed.Theabsence
ofanindispensablepartyrendersallsubsequentactionsofthecourtnullandvoidforwantofauthorityto
act,notonlytotheabsentpartiesbutevenastothosepresent.
Twoessentialtestsofanindispensableparty:
(a)Canareliefbeaffordedtotheplaintiffwithoutthepresenceoftheotherparty;and
(b)Canthecasebedecidedonitsmeritswithoutprejudicingtherightsoftheotherparty?
(1)ApersonisnotanIPifhisinterestinthecontroversyorsubjectmatterisseparablefromthe
interestoftheotherparties,sothatitwillnotnecessarilybedirectlyorinjuriouslyaffectedbyadecree
which does complete justice between them. Also, a person is not an IP if his presence would merely
permitcompletereliefbetweenhimandthosealreadypartiestotheaction,orifhehasnointerestinthe
subjectmatteroftheaction.
(2)Althoughnormallyajoinderofactionispermissive(Sec.6,id.),thejoinderofapartybecomes
compulsorywhentheoneinvolvedisanindispensableparty.Clearly,theruledirectsacompulsoryjoinder
ofIP(Sec.7,id.)
36
126
But a necessary party ought to be joined as a party if complete relief is to be accorded as to those
alreadyparties.(Sec.8,id.)
Thenoninclusionofanecessarypartydoesnotpreventthecourtfromproceedingintheaction,andthe
judgmentrenderedthereinshallbewithoutprejudicetotherightsofsuchnecessaryparty(Sec.9,id.)
127
Sec.21
Ifoneisauthorizedtolitigateasanindigent,suchauthorityshallincludeanexemptionfromthepayment
ofdocketfee,andoftranscriptsofstenographicnotes,whichthecourtmayordertobefurnishedbyhim.
However,theamountofthedocketandotherfees,whichtheindigentwasexemptfrompaying,shallbe
lienonthejudgmentrenderedinthecasefavorabletotheindigent.Alienonthejudgmentshallariseif
thecourtprovidesotherwise(ibid.)
128
Sec.18
Thesubstitutionofapartydependsonthenatureoftheaction.Iftheactionispersonal,andapartydies
pendent lite, such action does not survive, and such party cannot be substituted. If the action is real,
deathofthedefendantsurvivestheaction,andtheheirswillsubstitutethedead.Afavorablejudgment
obtainedbytheplaintiffthereinmaybeenforcedagainsttheestateofthedeceaseddefendant.(Sec.1,
Rule87)
Incaseapartybecomesincapacitatedorincompetentduringthependencyoftheaction,thecourt,
uponmotion,mayallowtheactiontobecontinuedbyoragainsttheincapacitatedorincompetentparty
withtheassistanceofhislegalguardianorguardianadlitem(Sec.18,Rule20).
Incaseoftransfer,theactionmaybecontinuedbyoragainsttheoriginalparty,unlessthecourtupon
motion directs the person to whom the interest is transferred to be substituted in the action or joined
withtheoriginalpartySec.19,Rule3).
37
Compulsory Permissive
They are parties without whom no final There is a right or relief in favor of or against
determination can be had of an action.130 the parties joined in respect to or arising out
of the same transaction or series of
transactions, and there is a question of law or
fact common to the parties joined in the
action.131
Misjoinder Non-joinder
When he is made a party to the action When he is supposed to be joined but is not
although he should not be impleaded.132 impleaded in the action.
Under the rules, neither misjoinder nor non-joinder of parties is a ground for the
dismissal of an action but failure to obey the order of the court to drop or add a party is a
ground for the dismissal of the complaint.133
129
UnderSec.13,Rule3wheretheplaintiffisuncertainagainstwhoofseveralpersonsheisentitledto
relief,hemayjoinanyorallofthemasdefendantsinthealternative,althougharighttoreliefagainstone
may be inconsistent with a right of relief against the other. Just as the rule allows a suit against
defendants in the alternative, the rule also allows alternative causes of action (Sec. 2, Rule 8) and
alternativedefenses(Sec.5[b],Rule6).
130
Sec.7,Rule3
131
Sec.6,id.
132
Misjoinderofpartiesdoesnotinvolvequestionsofjurisdictionandnotagroundfordismissal(Republic
vs.Herbieto,459SCRA183)
133
Sec.3,Rule17
38
4. Class Suit
One where the subject matter of the controversy is one of common or general
interest to many persons so numerous that it is impracticable to bring them all before the
court.134
Maybe sued under the name by which they are generally or commonly known,
but they cannot sue under such name.
The death of the client extinguishes the attorney-client relationship and divests a
counsel of his authority to represent the client. Accordingly, a dead client has no personality
and cannot be represented by and attorney.136 Neither does he become the counsel of the
heirs of the deceased unless his services are engaged by said heirs.137
Partiesmaybedroppedoraddedbyorderofthecourtonmotionofanypartyoronitsowninitiativeat
anystageoftheactionandonsuchtermsasarejust(Sec.11,Rule3)
134
Anactionwhereoneormoremaysueforthebenefitofalliftherequisitesforsaidactionarecomplied
with.
Thefollowingrequisitesmustconcurforaclasssuittoprosper:
(a)Thesubjectmatterofthecontroversymustbeofcommonorgeneralinteresttomaypersons;
(b)Thepersonsaresonumerousthatitisimpracticabletojoinallasparties;
(c) The parties actually before the court are sufficiently numerous and representative as to fully
protecttheinterestsofallconcerned;and
(d)Therepresentativessueordefendforthebenefitofall(Sec.12,Rule3).
Whetherthesuitisorisnotaclasssuitdependsupontheattendantfacts.Aclasssuitdoesnotrequire
commonalityofinterestinthequestionsinvolvedinthesuit.WhatisrequiredbytheRulesisacommon
or general interest in the subject matter of the litigation. The subject matter of the action means the
physical,thethings,realorpersonal,themoney,lands,chattels,andthelike,inrelationtothesuitwhich
isprosecutedandnotthedirectorwrongcommittedbythedefendant.Itisnotalsoacommonquestion
oflawthatsustainsaclasssuitbutacommoninterestinthesubjectmatterofthecontroversy(Mathay
vs.ConsolidatedBan&TrustCo.,58SCRA559)
Thereisnoclasssuitwheninterestsareconflicting.
Anactiondoesnotbecomeaclasssuitmerelybecauseitisdesignatedassuchinthepleadings.
135
Lapandayvs.Estita,449SCRA240
A corporation being an entity separate and distinct from its members has no interest in the individual
property of its members unless transferred to the corporation. Absent any showing of interests, a
corporation has no personality to bring an action for the purpose of recovering the property, which
belongstothemembersintheirpersonalcapacities.
136
Laviavs.CA,171SCRA691
137
Lawasvs.CA,146SCRA173
39
Where the claim is not extinguished by the death of the litigant, upon the receipt of
the notice of death, the court shall order the legal representative or representatives of the
deceased to appear and be substituted for the deceased within thirty (30) days from notice.138
The substitution of the deceased would not be ordered by the court in cases where the death
of the party would extinguish the action because substitution is proper only when the action
survives.139
Where the deceased has no heirs, the court shall require the appointment of an
executor or administrator. This appointment is not required where the deceased left an heir
because the heir under the new rule may be allowed to be substituted for the deceased. If
there is an heir but the heir is a minor, the court may appoint a guardian ad litem for said
minor heir.140
D. Venue141
The place or the geographical area where an action is to be filed and tried.142
Venue Jurisdiction
The authority to hear and determine a case The place where the case is to be heard or
tried;
Establishes a relation between the court and A relation between plaintiff and defendant,
the subject matter or petitioner and respondent;
Fixed by law and cannot be conferred by the May be conferred by the act or agreement of
parties the parties
Lack of jurisdiction over the subject matter is Not a ground for a motu proprio dismissal
a ground for a motu proprio dismissal. except in cases subject to summary
procedure
138
Sec.16,Rule3
139
Aguasvs.Llamas,5SCRA959
140
Sec.13
Thecourtmayappointanexecutororadministratorwhen:
(a)thecounselforthedeceaseddoesnotnamealegalrepresentative;or
(b)thereisarepresentativenamedbuthefailedtoappearwithinthespecifiedperiod(Sec.16,id.)
141
Rule4
142
In civil cases, it relates only to the place of the suit and not to the jurisdiction of the court (Manila
RailroadCompanyvs.AttorneyGeneral,20Phil.523).
40
In the proper court which has jurisdiction over the area wherein the real property
involved or a portion thereof is situated.144
Where
While they are considered valid and enforceable, venue stipulations in a contract do
not, as a rule, supersede the general rule set forth in Rule 4149 in the absence of qualifying or
restrictive words. They should be considered merely as an agreement or additional forum,
not as limiting venue to the specified place. They are not exclusive but rather permissive. If
143
Actionsaffectingtitletoorpossessionofrealproperty,orinteresttherein
144
Inforcibleentryanddetaineractionsinthemunicipaltrialcourtofthemunicipalityorcitywherein
therealpropertyinvolved,oraportionthereof,issituated(Sec.1)
145
attheoptionoftheplaintiff(Sec.2)
146
Sec.3
147
alsoattheoptionoftheplaintiff(Sec.2)
148
Sec.4
149
supra
41
the intention of the parties were to restrict venue, there must be accompanying language
clearly and categorically expressing their purpose and design that actions between them be
litigated only at the place named by them.150
E. Pleadings151
The written statements of the respective claims and defenses of the parties submitted
to the court for appropriate judgment.152
1. Kinds of Pleadings153
a. Complaint
The pleading alleging the plaintiffs cause or causes of action, stating therein the
names and residences of the plaintiff and defendant.154
b. Answer
A pleading in which a defending party sets forth his defenses.155 It may allege legal
provisions relied upon for defense.156
The specific denials of the material fact or facts alleged in the pleading of the
claimant essential to his cause or causes of action.157
150
Ininterpretingstipulationsastovenue,thereisaneedtoinquireastowhetherornottheagreementis
restrictiveornot.Ifthestipulationisrestrictive,thesuitmaybefiledonlyintheplaceagreeduponbythe
parties.ItmustbereiteratedandmadeclearthatunderRule4,thegeneralrulesonvenueofactionsshall
notapplywheretheparties,beforethefilingoftheaction,havevalidlyagreedinwritingonanexclusive
venue.Themerestipulationonthevenueofanaction,however,isnotenoughtoprecludepartiesfrom
bringingacaseinothervenues.Thepartiesmustbeabletoshowthatsuchstipulationisexclusive.Inthe
absenceofqualifyingorrestrictivewords,thestipulationshouldbedeemedasmerelyanagreementon
anadditionalforum,notaslimitingvenuetothespecifiedplace(SpousesLantinvs.Lantin,G.R.160053,
August28,2006).
151
Rule6
152
Sec.1
Pleadingsaimtodefinetheissuesandfoundationofprooftobesubmittedduringthetrial,andtoapprise
thecourtoftherivalclaimsoftheparties.
153
Rule6
154
Sec.3
155
Ibid.
156
Sec.1,Rule8
Itmaybeananswertothecomplaint,counterclaimoracrossclaim,thirdpartycomplaintorcomplaint
inintervention.
157
Sec.5[a]
Whentheanswersetsforthnegativedefenses,theburdenofproofrestsupontheplaintiff,andwhenthe
answerallegesaffirmativedefenses,theburdenofproofdevolvesuponthedefendant.
Three(3)typesspecificdenials:
42
(a) Fraud
(b) Statute of limitations
(c) Release
(d) Payment
(e) Illegality
(f) Statute of frauds
(g) Estoppel
(h) Former recovery
(i) Discharge in bankruptcy
i.Absolutedenialwhenthedefendantspecifyeachmaterialallegationoffactthetruthofwhichhe
doesnotadmitandwheneverpracticablesetsforththesubstanceofthemattersuponwhichhereliesto
supportsuchdenial.
ii.Partialdenialwhenthedefendantdoesnotmakeatotaldenialofthematerialallegationsin
aspecificparagraph,denyingonlyapartoftheaverment.Indoingsohespecifiesthatpartofthetruth
ofwhichheadmitsanddeniesonlytheremainder.
iii. Denial by disavowal of knowledge when the defendant alleges having no knowledge or
informationsufficienttoformabeliefastothetruthofamaterialavermentmadeinthecomplaint.
Suchdenialmustbemadeingoodfaith.
Whenthematterdeniedbyadisavowalofknowledgeisplainlyandnecessarilywithinthedefendants
knowledge,suchclaimshallnotbeconsideredasaspecificdenial.
Ifthedenialdoesnotfallwithinthescopeoftheabovementionedkindsofaspecificdenial,itshall
be considered a general denial which is considered as an admission of the averment not specifically
denied.
158
Republicvs.Sandiganbayan,G.R.1512154,July15,2003
43
Any claim which a defending party may have against an opposing party.159
One which, being cognizable by the regular courts of justice, arises out of or is
connected with the transaction or occurrence constituting the subject matter of the opposing
partys claim and does not require for its adjudication, the presence of third parties of whom
the court cannot acquire jurisdiction. Such a counterclaim must be within the jurisdiction of
the court, both as to the amount and the nature thereof, except that in an original action
before the RTC, the counterclaim may be considered compulsory regardless of the
amount.160
A counterclaim which does not arise out of nor is it necessarily connected with the
subject matter of the opposing partys claim. It is not barred even if not set up in the
action.161
159
Sec.6
Itisinitselfaclaimorcauseofactioninterposedinananswer.Itiseithercompulsoryorpermissive.
160
Sec.7
(a) Acompulsorycounterclaimifnotsetupisbarred
(b)Itrequiresnopaymentofthedocketfee
(c)Neednotbeanswered
(d)Doesnotneedacertificateagainstforumshopping
Teststodeterminewhetherornotacounterclaimiscompulsory:
(a)Aretheissuesoffactorlawraisedbytheclaimandcounterclaimlargelythesame?
(b) Would res judicata bar a subsequent suit on defendants claims absent the compulsory
counterclaimrule?
(c) Will substantially the same evidence support or refute plaintiffs claim as well as the
defendantscounterclaim?and
(d)Isthereanylogicalrelationbetweentheclaimandthecounterclaim?(FinancialBuildingCorp.vs.
ForbesParkAssn.Inc.,338SCRA811).
Thefailureofthedefendanttosetupacompulsorycounterclaimshallbaritsinstitution,subjectto
thefollowingexceptions:
a)Ifthecounterclaimmaturedorwasacquiredafterthedefendanthadservedhisanswer.In
suchcase,itmaybepleadedbyfilingasupplementalanswerorpleadingbeforejudgment;and
b) When a pleader fails to set up a counterclaim through oversight, inadvertence, excusable
negligence,orwhenjusticerequires,hemay,byleaveofcourt,setupthecounterclaimbyamendmentof
thepleadingsbeforejudgment.
161
PermissiveCounterclaim:
(a)evenifnotsetupisnotbarredbecauseitdoesntariseoutofthesametransactionasthatofthe
complaint
(b)itcanbebroughtasaseparateactioninitself
(c)docketfeemustbepaid
(d)itmustbeansweredbytheadversepartytopreventdefault
(e)itneedsacertificateagainstforumshopping.
44
If a counterclaim has already been pleaded by the defendant prior to the service
upon him of the plaintiffs motion to dismiss, and the court grants the said motion to
dismiss, the dismissal shall be limited to the complaint.162
The dismissal of the complaint163 is without prejudice to the right of the defendant to
prosecute his counterclaim in the same action or in a separate action.164 This dismissal shall
have the effect of an adjudication upon the merits, unless otherwise declared by the court.
The dismissal of the main action does not carry with it the dismissal of the
counterclaim.165
d. Cross-claim
Any claim by one party against a co-party arising out of the transaction or occurrence
that is the subject matter either of the original action or of a counterclaim therein. Such
cross-claim may include a claim that the party against whom it is asserted is or may be liable
to the cross-claimant for all of part of a claim asserted in the action against the cross-
claimant.166
e. Third (fourth, etc.) party complaint
It is a claim that a defending party may, with leave of court, file against a person not
a party to the action, called the third (fourth, etc.) - party defendant, for contribution,
indemnity, subrogation or any other relief, in respect of his opponents claim.
f. Complaint-in-intervention
A pleading whereby a third party asserts a claim against either or all of the original
parties.167
Requirementsofapermissivecounterclaim:
(a) It does not require for its adjudication the presence of third parties of whom the court cannot
acquirejurisdiction;
(b)Itmustbewithinthejurisdictionofthecourtwhereinthecaseispendingandiscognizablebythe
regularcourtsofjustice;and
(c)Itdoesnotariseoutofthesametransactionorseriesoftransactionssubjectofthecomplaint.
162
Sec.2,Rule17
163
underSec.3(duetofaultofplaintiff)
164
Shouldthedefendantchoosetohavehiscounterclaimresolvedinthesameaction,hemustnotifythe
courtofhispreferencewithin15daysfromnoticeoftheplaintiffsmotiontodismiss.Shouldheoptto
prosecutehiscounterclaiminaseparateaction,thecourtshouldrenderthecorrespondingordergranting
andreservinghisrighttoprosecutehisclaiminaseparatecomplaint.Aclasssuitshallnotbedismissedor
compromisedwithouttheapprovalofthecourt.
165
Sec.6,Rule16
166
Sec.8,Rule6
167
Ifatanytimebeforejudgment,apersonnotapartytotheactionbelievesthathehasalegalinterestin
thematterinlitigationinacaseinwhichheisnotaparty,hemay,withleaveofcourt,fileacomplaintin
interventionintheactionifheassertsaclaimagainstoneoralloftheparties
45
g. Reply
a) Statement of claim
b) Response
c) Counterclaim in the response
a) complaint,
b) compulsory counterclaim,
c) cross-claim pleaded in the answer, and
d)answers thereto.169
3. Parts of a pleading170
a) caption
b) the text or the body
c) the signature and address
d) the verification, and
e) the certification against forum shopping.171
Ifthepleadingseekstounitewiththedefendingpartyinresistingaclaimagainstthelatter,heshallfile
ananswerinintervention.
168
Itapartydoesnotfilesuchreply,allthenewmattersallegedintheansweraredeemedcontroverted
(Sec.10,Rule6).
Butyouneedtofileareplyifthereisanactionabledocumentdenyingthedueexecutionof
suchdocumentunderoath
169
Sec.3[A]
Thesepleadingsmustbeverified(Sec.3[B]
170
Rule7
171
Secs.15
46
a. Caption
Must set forth the name of the court, the title of the action, and the docket number
if assigned.
The title of the action indicates the names of the parties. They shall all be named in
the original complaint or petition; but in subsequent pleadings, it shall be sufficient if the
name of the first party on each side be stated with an appropriate indication when there are
other parties. Their respective participation in the case shall be indicated.
Every pleading must be signed by the party or counsel representing him, stating in
either case his address which should not be a post office box.172
172
Thesignatureofcounselconstitutesacertificatebyhimthathehasreadthepleading;thattothebest
ofhisknowledge,information,andbeliefthereisgoodgroundtosupportit;andthatitisnotinterposed
fordelay.
In every pleading, counsel has to indicate his professional tax receipt (PTR) and IBP receipt, the
purposeofwhichistoseetoitthathepayshistaxandmembershipdueregularly.
An unsigned pleading produces no legal effect. However, the court may, in its discretion, allow such
deficiencytoberemediedifitshallappearthatthesamewasduetomereinadvertenceandnotintended
fordelay.Counselwhodeliberatelyfilesanunsignedpleading,orsignsapleadinginviolationoftheRule,
orallegesscandalousorindecentmattertherein,orfailstopromptlyreporttothecourtachangeofhis
address,shallbesubjecttoappropriatedisciplinaryaction.
173
Thegeneralruleisthatapleadingneednotbeunderoath(Sec.4,Rule7),whichmeansthatapleading
neednotbeverified.Apleadingwillbeverifiedonlywhenaverificationisrequiredbyalaworbyarule.
174
Theverificationrequirementissignificant,asitisintendedtosecureanassurancethattheallegations
inapleadingaretrueandcorrectandnottheproductoftheimaginationoramatterofspeculation,and
thatthepleadingisfiledingoodfaith.Theabsenceofproperverificationiscausetotreatthepleadingas
unsignedanddismissible.
It is, however, been held that the absence of a verification or the noncompliance with the verification
requirementdoesnotnecessarilyrenderthepleadingdefective.Itisonlyaformalandnotajurisdictional
requirement. Therequirementis aconditionaffecting only theform ofthe pleading. Theabsenceof a
verificationmaybecorrectedbyrequiringanoath.Theruleisinkeepingwiththeprinciplethatrulesof
procedureareestablishedtosecuresubstantialjusticeandthattechnicalrequirementsmaybedispensed
withinmeritoriouscases.Thecourtmayorderthecorrectionofthepleadingoractonanunverified
47
(a) The party has not commenced or filed any claim involving the same issues in any
court, tribunal, or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending;
(b) If there is such other pending action or claim, a complete statement of the
present status thereof; and
(c) If he should therefore learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the court wherein his
aforesaid complaint or initiatory pleading has been filed.175
Failure to comply with the foregoing requirements shall not be curable by mere
amendment of the complaint or other initiatory pleading but shall because for the dismissal
of the case without prejudice, unless otherwise provided, upon motion and after hearing.
pleadingiftheattendingcircumstancesaresuchthatstrictcompliancewouldnotfullyservesubstantial
justice,whichafterall,isthebasicaimfortherulesofprocedure(RobertDevelopmentCorp.vs.Quitain,
315SCRA150)
175
Neededininitiatorypleadings
Thecertificationismandatoryunder Sec.5,Rule7,butnotjurisdictional(RobertDevelopment Corp.
vs.Quitaincase).
Thereisforumshoppingwhen
(a) as a result of an adverse opinion in one forum, a party seeks a favorable opinion, other than by
appealorcertiorariinanother;
(b)whenapartyinstitutestwoormoresuitsindifferentcourts,eithersimultaneouslyorsuccessively,
inordertoaskthecourtstoruleonthesameorrelatedcausesand/ortograntthesameorsubstantially
the same reliefs on the supposition that one or the other court would make a favorable disposition or
increase a partys chances of obtaining a favorable decision or action (Huibonhoa vs. Concepcion, GR
153785,Aug.3,2006).
(c)whentheelementsoflitispendentiaarepresentorwhereafinaljudgmentinonecasewillamount
toresjudicatainanother.
Itisanactofmalpractice,asthelitigantstriflewiththecourtsandabusetheirprocesses.Itisimproper
conductanddegradestheadministrationofjustice.Iftheactofthepartyoritscounselclearlyconstitutes
willful and deliberate forumshopping, the same shall constitute direct contempt, and a cause for
administrative sanctions, as well as a ground for the summary dismissal of the case with prejudice
(Montesvs.CA,GR143797,May4,2006).
176
Sec.5,Rule7
Thiscertificationisnotnecessarywhenwhatisfiledisameremotionforextension,orincriminalcases
anddistinctcausesofaction.
48
It is the plaintiff or principal party who executes the certification under oath, and not
the attorney.177
PossibleViolations(asperDeanRiano):
1)Noncompliancewiththeundertakingdismissalwithoutprejudice
2)FalseCertificationindirectcontempt,administrativeandcriminalsanction
3)Willfulanddeliberateforumshoppinggroundforsummarydismissalwithprejudicewithout
motionandhearing;ithasadministrativebutwithoutcriminalsanctions
So,ifthedismissaliswithoutprejudice,yourremedyiscertiorari;ifwithoutprejudice,the
remedyisappeal(Sec.1(g),Rule41)
Thedismissalisnotsubjectofappealiftheorderofdismissaliswithoutprejudice.
177
Itmustbesignedbythepartyhimselfandcannotbesignedbyhiscounsel.Asageneralandprevailing
rule, a certification signed by counsel is a defective certification and is a valid cause for dismissal. (Far
EasternShippingCo.vs.CA,297SCRA30).
178
A juridical entity, unlike a natural person, can only perform physical acts through properly
delegatedindividuals.
179
NationalSteelCorp.vs.CA,388SCRA85
180
FarEasternShippingCompanyvs.CA,297SCRA30
Thisisthegeneralandprevailingrule.
181
The reason for requiring that it must be signed by the principal party himself is that he has actual
knowledge,orknowsbetterthananyoneelse,whetherhehasinitiatedsimilaraction/sinothercourts,
agenciesortribunals.
Counselssignaturesignifiesthat:
a)Hehasreadthepleading;
b)Thattothebestofhisknowledge,informationandbeliefthereisagoodgroundtosupportit;
c)Thatitisnotinterposedfordelay.
49
4. Allegations in a pleading182
Every pleading shall contain in a mathematical and logical form, a plain, concise and
direct statement of the ultimate facts on which the party relies for his claim and defense, as
the case may be, containing the statement of mere evidentiary facts.183
182
Rule8
183
Sec.1
184
Whenaclaimissubjecttoaconditionprecedent,thecomplianceofthesamemustbeallegedinthe
pleading.
185
Sec.1[j],Rule16
186
Sec.5
Itisnotenoughtherefore,forthecomplainttoallegethathewasdefraudedbythedefendant.Underthis
provision, the complaint must state with particularity the fraudulent acts of the adverse party. These
particularswouldnecessarilyincludethetime,placeandspecificactsoffraudcommittedagainsthim.
187
Unlikeinfraudormistake,theyneednotbestatedwithparticularity
The rule is borne out of human experience. It is difficult to state the particulars constituting these
matters.Hence,ageneralavermentissufficient.
188
Sec.6
189
Sec.9
50
(a) set forth in the pleading the substance of the instrument or the document; or
(b) toattach the original or the copy of the document to the pleading as an exhibit
and to be part of thepleading; or
(c) to set forth in the pleading said copy of the instrument or document.191
c. Specific denials
(a) By specifying each material allegation of the fact in the complaint, the truth of
which the defendant does not admit, and whenever practicable, setting forth the substance
of the matter which he will rely upon to support his denial;
(b) By specifying so much of the averment in the complaint as is true and material
and denying only the remainder;
If the allegations are deemed admitted, there is no more triable issue between the
parties and if the admissions appear in the answer of the defendant, the plaintiff may file a
motion for judgmenton the pleadings.194
190
Anactionabledocumentisadocumentrelieduponbyeithertheplaintifforthedefendant.
191
Sec.7
Thismannerofpleadingadocumentappliesonlytoonewhichisthebasisofactionordefense.Hence,if
thedocumentdoesnothavethecharacterofanactionabledocument,aswhenitismerelyevidentiary,
itneednotbepleadedstrictlyinthemannerprescribedbythissection.
192
Gazavs.Lim,G.R.126863,Jan.16,2003
The purpose of requiring the defendant to make a specific denial is to make him disclose the matters
alleged in the complaint which he succinctly intends to disprove at the trial, together with the matter
which he relied upon to support the denial. The parties are compelled to lay their cards on the table
(Aquinteyvs.Tibong,G.R.166704,Dec.20,2006)
193
Sec.11
194
underRule34
An admission in a pleading cannot be controverted by the party making such admission because the
admissionisconclusiveastohim.Allproofssubmittedbyhimcontrarytheretoorinconsistenttherewith
shouldbeignoredwhetheranobjectionisinterposedbyapartyornot(Republicvs.Sarabia,G.R.157847,
51
Exceptions:
Aug.25,2005).Saidadmissionisajudicialadmission,havingbeenmadebyapartyinthecourseofthe
proceedings in the same case, and does not require proof. A party who desires to contradict his own
judicial admission may do so only be either of two ways: (a) by showing that the admission was made
throughpalpablemistake;or(b)thatnosuchadmissionwasmade(Sec.4,Rule129).
Thefollowingarenotdeemedadmittedbythefailuretomakeaspecificdenial:
(a)Theamountofunliquidateddamages;
(b)Conclusionsinapleadingwhichdonothavetobedeniedatallbecauseonlyultimatefactsneedbe
allegedinapleading;
(c)Nonmaterialallegations,becauseonlymaterialallegationsneedbedenied.
195
Sec.8
196
Sec.11
197
Rule9
198
prescription
sameasSec.8,Rule117
199
Inallthesecases,thecourtshalldismisstheclaim(Sec.1)
200
Sec.2
52
6. Default
A procedural concept that occurs when the defending party fails to file his answer
within the reglementary period.201
If the defending party fails to answer within the time allowed therefor, the court
shall, upon motion of the claiming party with notice to the defending party, and proof of
such failure, declare the defending party in default.202
1) The party declared in default loses his standing in court preventing him from
taking part in the trial;
Remedy after notice of order and before Motion to set aside order of default, showing
judgment that
201
Itdoesnotoccurfromthefailureofthedefendanttoattendeitherthepretrialorthetrial.
202
Sec.3
Requisitesinorderforthecourttodeclarethedefendantindefault:
1.Thecourtmusthavevalidlyacquiredjurisdictionoverthepersonofthedefendanteitherbyservice
ofsummonsorvoluntaryappearance;
2.Thedefendantfailstoanswerwithinthetimeallowedtherefore;
3.Theremustbeamotiontodeclarethedefendantindefault;
4.Theremustbenoticetothedefendantbyservinguponhimacopyofsuchmotion;
5.Theremustbeproofofsuchfailuretoanswer;and
6.Theremustbeahearingtodeclarethedefendantindefault.
Itisnotcorrecttodeclareapartyindefaultifthedefendingpartyfiledananswer
203
Sec.3[a]
204
Thedeclarationofdefaultisnotanadmissionofthetruthorvalidityoftheplaintiffsclaims.
205
theremustbeanaffidavitofmerit(Sec.3[b])
53
Remedies after judgment but before finality (a) Motion for new trial;206 or
Remedies after judgment becomes final and (c) Appeal from the judgment as being
executory contrary to the evidence or the law.207
Default is only against those defendants who didnt file the answer but they can also
benefit from the answering defendants.210
e. Extent of relief
May not exceed the amount or be different in kind from that prayed for nor award
unliquidated damages.211
206
underRule37
207
Rule41
YoucandirectlyfileanappealwithoutpassingMRandMNT;oryoucanfileMR/MNTandifdenied,then
youcanstillfileanappealandhaveanewfresh15dayperiodofappeal,whichistheNeypesdoctrine.
ThisNeypesdoctrineonfreshperiodofappealappliestoRule45andSec.3(e)ofRule122.
Thepurposeofthedoctrineistostandardizetheperiodofappeal.
Sotheperiodofappealis15daysfromnoticeofjudgmentor15daysfromfinalorderappealedfrom.
TheSCruledinonecasethatthisfreshperiodofappealisapplicableincriminalcases(JudithYuvs.
JudgeSamson,Feb.9,2011)
208
underRule38
209
underRule47
Iftheorderofdefaultisvalid,certiorariisnotavailable.Ifthedefaultorderwasimprovidentlyissued,that
is, the defendant was declared in default, without a motion, or without having served with summons
beforetheexpirationofthereglementaryperiodtoanswer,certiorariisavailableasaremedy(Matutevs.
CS,26SCRA798;Akutvs.CA,116SCRA216).
210
Whenapleadingassertingaclaimstatesacommoncauseofactionagainstseveraldefendingparties,
some of whom answer and the others fail to do so, the court shall try the case against all upon the
answersthusfiledandrenderjudgmentupontheevidencepresented.(Sec.3[c],Rule9)
211
Sec.3[c],id.
In fact, there can be no automatic grant of relief as the court has to weigh the evidence.
Furthermore, there can be no award of unliquidated damages. (Gajudo vs. Traders Royal Bank, G.R.
151098,March31,2006)
54
It is not simply the filing of the complaint or appropriate initiatory pleading but the
payment of the prescribed docket fee that vests a trial court with jurisdiction over the subject
matter or nature of the action.213
In connection with the payment of docket fees, the court requires that all
complaints, petitions, answers and similar pleadings must specify the amount of damages
being prayed for both in the body of the pleading and in prayer therein and said damages
shall be considered in the assessment of the filing fees; otherwise such pleading shall not be
accepted for filing or shall be expunged from the record.
Any defect in the original pleading resulting in underpayment of the docket fee
cannot be cured by amendment.214
The Rules now require that appellate docket and other lawful fees must be paid
within the same period for taking an appeal.215
b. Filing versus service of pleadings
212
Rule13
213
ProtonPilipinasCorp.vs.BanqueNationaldeParis,460SCRA260
214
suchasbythereductionoftheclaimas,foralllegalpurposes,thereisnooriginalcomplaintoverwhich
thecourthasacquiredjurisdiction(ManchesterDevelopmentCorp.vs.CA,G.R.75919,May7,1987)
The rule on payment of docket fee has, in some instances, been subject to the rule on liberal
interpretation. Thus, in a case, it was held that while the payment of the required docket fee is a
jurisdictional requirement, even its nonpayment at the time of filing does not automatically cause the
dismissalofthecase,aslongasthefeeispaidwithintheapplicableprescriptiveorreglementary
period(PAGCORvs.Lopez,474SCRA76;SunInsuranceOfficevs.Asuncion,170SCRA272)
Also,iftheamountofdocketfeesisinsufficientconsideringtheamountoftheclaim,thepartyfilingthe
casewillberequiredtopaythedeficiency,butjurisdictionisnotautomaticallylost(Riveravs.DelRosario,
GR144934,Jan.15,2004)
215
ThisisclearfromtheopeningsentenceofSec.4,Rule41thatWithintheperiodfortakinganappeal,
theappellantshallpaytotheclerkofcourtwhichrenderedthejudgmentorfinalorderappealedfrom,
thefullamountoftheappellatecourtdocketandotherlawfulfees.
The Supreme Court has consistently held that payment of docket fee within the prescribed period is
mandatoryfortheperfectionofanappeal.Withoutsuchpayment,theappellatecourtdoesnotacquire
jurisdictionoverthesubjectmatteroftheactionandthedecisionsoughttobeappealedfrombecomes
finalandexecutory(Regaladovs.Go,GR167988,Feb.6,2007).Hence,nonpaymentisavalidground
for the dismissal of an appeal (MA Santander Construction vs. Villanueva, GR 136477, Nov. 10, 2004).
However, delay in the payment of the docket fees confers upon the court a discretionary, not a
mandatorypowertodismissanappeal(Villamorvs.CA,GR136858,Jan.21,2004).
55
Filing Service
The act of presenting the pleading or other The act of providing a party with a copy of
paper to the clerk of court. the pleading or paper concerned.216
b. If it has no resident agent but it has an - within 15 days after service of summons to
agent or officer in the Philippines said agent or officer.
When the service is made by publication - within the time specified in the order
granting leave to serve summons by
publication which shall not be less than 60
days after notice.
216
Sec.2
217
Theanswermustbefiledwithin30daysfromthereceiptofthesummonsbythehomeoffice.
56
amended complaint.
If the amendment is not a matter of right - within 10 days from notice of the order
admitting the same.218
d. Manner of filing
The filing of pleadings, appearances, motions, notices, orders, judgments and all
other papers shall be made by presenting the original copies thereof, plainly indicated as
such, personally to the clerk of court or by sending them by registered mail.
In the first case, the clerk of court shall endorse on the pleading the date and hour of
filing. In the second case, the date of the mailing of motions, pleadings, or any other papers
or payments or deposits, as shown by the post office stamp on the envelope or the registry
receipt, shall be considered as the date of their filing, payment, or deposit in court. The
envelope shall be attached to the record of the case.220
e. Modes of service
218
Thesameperiodsshallapplytoanswersfiledonanamendedcounterclaim,crossclaimandthirdparty
complaint.
219
Sec.3
220
Ibid.
57
(a) personally, or
(b) by mail.
However, if personal service and service by mail cannot be made, service shall be
done by substituted service.
Made by:
(a) delivering a copy of the papers served personally to the party or his counsel, or
(b) by leaving the papers in his office with his clerk or a person having charge
thereof. If no person is found in the office, or his office is not known or he has no office,
then byleaving a copy of the papers at the partys or counsels residence, if known, with a
person of sufficient age and discretion residing therein between eight in the morning and six
in the evening.222
Service by ordinary mail may be done only if no registry service is available in the
locality of either the sender or the addressee.223
Availed of only when there is failure to effect service personally or by mail. This
failure occurs when the office and residence of the party or counsel is unknown.224
221
Ifanothermodeofserviceisusedotherthanpersonalservice,theservicemustbeaccompaniedbya
writtenexplanationwhytheserviceorfilingwasnotdonepersonally.Exemptfromthisexplanationare
papers emanating from the court. A violation of this explanation requirement may be a cause for the
papertobeconsideredasnothavingbeenfiled(Sec.11)
222
Sec.6
223
Sec.7
Itshallbedonebydepositingthecopyinthepostoffice,inasealedenvelope,plainlyaddressedtothe
party or his counsel at his office, if known, or otherwise at his residence, if known, with postage fully
prepaid,andwithinstructionstothepostmastertoreturnthemailtothesenderafterten(10)daysifnot
delivered.
224
Effectedbydeliveringthecopytotheclerkofcourt,withproofoffailureofbothpersonalserviceand
servicebymail(Sec.8).Substitutedserviceiscompleteatthetimeofdeliveryofthecopytotheclerkof
court.
58
Service by ordinary mail - upon the expiration of ten (10) days after
mailing, unless the court otherwise
provides.227
225
When a party summonedbypublication has failedto appearintheaction, final ordersor judgments
againsthimshallbeserveduponhimalsobypublicationattheexpenseoftheprevailingparty(Sec.9).
226
Thefollowingpapersarerequiredtobefiledincourtandserveduponthepartiesaffected:
(a)Judgments
(b)Resolutions
(c)Orders
(d)Pleadingssubsequenttothecomplain
(e)Writtenmotions
(f)Notices
(g)Appearances
(h)Demands
(i)Offersofjudgment
(j)Similarpapers(Sec.4)
227
Sec.10
228
Sec.8
59
ii. with postage fully paid; and By affidavit of the mailer showing
231
iii. with the instructions to the compliance with Sec. 7, Rule 13.
postmaster to return the mail to the
sender after 10 days if undelivered
8. Amendment232
229
Sec.13
230
Service by registered mail shall be made by depositing the copy in the office, in a sealed envelope,
plainlyaddressedtothepartyorhiscounselathisoffice,ifknown,otherwiseathisresidence,ifknown,
withpostagefullyprepaid,andwithinstructionstothepostmastertoreturnthemailtothesenderafter
ten (l0) days if undelivered. If no registry service is available in the locality of either the sender or the
addressee,servicemaybedonebyordinarymail.
231
supra
60
A plaintiff has the right to amend his complaint once at any time before a responsive
pleading is served by the other party or in case of a reply to which there is no responsive
pleading, at any time within ten (10) days after it is served.233
The defendant may also amend his answer, also as a matter of right, before a reply is
served upon him.
c. Formal amendment
A defect in the designation of the parties and other clearly clerical or typographical
errors may be summarily corrected by the court at any stage of the action, at its initiative or
on motion, provided no prejudice is caused thereby to the adverse party.235
232
Rule10
233
Sec.2
Thus,beforeananswerisservedontheplaintiff,thelattermayamendhiscomplaintasamatterofright.
Soyoucanamendthecomplainttocorrecttheerrorofjurisdictionasamatterofright(withoutleaveof
court)beforearesponsivepleadingisservedeventhoughthereisalreadyamotiontodismiss
filed for lack of jurisdiction. The court should deny the motion since such motion is not a
responsivepleading.
Theamendmentasamatterofrightshouldbefiledbeforetheordertodismissbecomesfinal.
Thissectionreferstoanamendmentmadebeforethetrialcourt,nottoamendmentsbeforetheCA,
which is vested with jurisdiction to admit or deny amended petitions filed before it (Navarro Vda. De
Taroma,478SCRA336).Hence,evenifnoresponsivepleadinghasyetbeenserved,iftheamendmentis
subsequent to a previous amendment made as a matter of right, the subsequent amendment must be
withleaveofcourt.
234
Sec.3
Theplaintiff,forexample,cannotamendhiscomplaintbychanginghiscauseofactionoraddinganew
onewithoutleaveofcourt(CaloandSanJosevs.Roldan,76Phil.445;Buenaventuravs.Buenaventura,94
Phil.193).
After a responsive pleading is filed, an amendment to the complaint may be substantial and will
correspondingly require a substantial alteration in the defenses of the adverse party. The
amendmentofthecomplaintisnotonlyunfairtothedefendantbutwillcauseunnecessarydelayinthe
proceedings.Leaveofcourtisthus,required.Ontheotherhand,wherenoresponsivepleadinghasyet
beenserved,nodefenseswouldbealtered.Theamendmentofthepleadingwillnotthenrequireleaveof
court(Siasocovs.CA,303SCRA186).
235
Sec.4
61
When issues not raised by the pleadings are tried with the express or implied consent
of the parties, they shall be treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause them to conform to the
evidence and to raise these issues may be made upon motion of any party at any time, even
after judgment; but failure to amend does not affect the result of the trial of these issues.
If evidence is objected to at the trial on the ground that it is not within the issues
made by the pleadings, the court may allow the pleadings to be amended and shall do so
with liberality if the presentation of the merits of the action and the ends of substantial
justice will be subserved thereby. The court may grant a continuance to enable the
amendment to be made.236
One which sets forth transactions, Takes the place of the original pleading.
occurrences, or events which have happened
since the date of the pleading sought to be
supplemented.237
A supplemental pleading exists side by side with the original; it does not replace that
which it supplements; it does not supersede the original but assumes that the original
pleading remain as the issues to be tried in the action. A supplemental pleading supplies the
deficiencies in aid of an original pleading, not to entirely substitute the latter.238
236
Sec.5
237
The filing of supplemental pleadings requires leave of court. The court may allow the pleading only
uponsuchtermsasarejust.Thisleaveissoughtbythefilingofamotionwithnoticetoallparties.(Sec.6)
238
Sps.Caoilivs.CA,GR128325,Sept.14,1999
239
Sec.8
Theoriginalpleadinglosesitsstatusasapleading,isdeemedwithdrawnanddisappearsfromtherecord.
It has been held that the original complaint is deemed superseded and abandoned by the amendatory
complaintonlyifthelatterintroducesanewordifferentcauseofaction(Versozavs.CA,299SCRA100).
240
Magaspivs.Remolete,115SCRA193
241
Rule14
62
A writ or process issued and served upon the defendant in a civil action for the
purpose of securing his appearance therein.242
In an action in personam, the purpose of summons is not only to notify the defendant
of the action against him but also to acquire jurisdiction over his person.243
In an action in rem or quasi in rem, jurisdiction over the defendant is not required and
the court acquires jurisdiction over an action as long as it acquires jurisdiction over the res.
The purpose of summons in these actions is not the acquisition of jurisdiction over the
defendant but mainly to satisfy the constitutional requirement of due process.244
2. Voluntary appearance
The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction
over the person of the defendant shall not be deemed a voluntary appearance.246
Voluntary appearance may be in form of:
242
The service of summons enables the court to acquire jurisdiction over the person of the
defendant.Ifthereisnoserviceofsummons,anyjudgmentrenderedorproceedingshadinacaseare
nullandvoid,exceptincaseofvoluntaryappearance(Echevarriavs.ParsonsHardware,51Phil.980)
Thepurposeofsummonsistocomplywiththeconstitutionalrightsondueprocess.
The law requiring the manner of service of summons in jurisdictional (Toyota Cubao vs. CA, G.R.
126321,Oct.23,1997)
When the defendant is a corporation, partnership or association organized under the laws of the
Philippineswithajuridicalpersonality,servicemaybemadeonthepresident,managingpartner,general
manager,corporatesecretary,treasurer,orinhousecounsel(Sec11).
If a party dies and there is substitute, there is no need for summons but only an order for him to
appear.
243
Umandapvs.Sabio,Jr.,339SCRA243
The filing of the complaint does not enable the courts to acquire jurisdiction over the person of the
defendant.Bythefilingofthecomplaintandthepaymentoftherequiredfilinganddocketfees,thecourt
acquires jurisdiction only over the person of the plaintiff, not over the person of the defendant.
Acquisitionofjurisdictionoverthelatterisaccomplishedbyavalidserviceofsummonsuponhim.
Service of summons logically follows the filing of the complaint. The filing of the complaint tolls the
runningoftheprescriptiveperiodofthecauseofactioninaccordancewithArticle1155oftheCivilCode.
244
Gomezvs.CA,420SCRA98
245
Any appearance of the defendant in court, provided he does not raise the question of lack of
jurisdictionofthecourt(Floresvs.Zurbito,37Phil.746;Carballovs.Encarnacion,92Phil.974)
246
Sec.20
Jurisdictionoverthedefendantisacquiredby:
a)Validserviceofsummons;or
b)Byhisvoluntaryappearanceorsubmissiontothejurisdictionofthecourt.
Lackofjurisdictionoveronespersonmaybeinvokedinamotiontodismissallegingsuchground.If
nomotiontodismissisfiled,itmayberaisedasanaffirmativedefenseintheanswer.
63
3. Personal service
4. Substituted service
It may be resorted to if there are justifiable causes, where the defendant cannot be
served within a reasonable time.251
5. Constructive service253
The recognized mode of service is service in Jurisdiction is acquired over the defendant
person on the defendant.255 by service upon his person while said
247
Floresvs.Surbito
248
Punzalanvs.Papica,Feb.29,1960
249
Navalevs.CA,G.R.109957,Feb.20,1996
250
Sec.6
251
Servicemaybeeffected:
(a) By leaving copies of the summons at the defendants dwelling house or residence with some
personofsuitableageanddiscretionthenresidingtherein;or
(b)Byleavingcopiesatdefendantsofficeorregularplaceofbusinesswithsomecompetentpersonin
chargethereof(Sec.7)
252
DeltaMotorSalesCorp.vs.Mangosing,70SCRA598
253
bypublication
254
Publicationisnoticetothewholeworldthattheproceedinghasforitsobjecttobarindefinitelyallwho
might be minded to make an objection of any sort against the right sought to be established. It is the
publication of such notice that brings the whole world as a party in the case and vests the court with
jurisdictiontohearanddecideit(Alabanvs.CA,G.R.156021,Sept.23,2005).
64
255
underSec.6
256
Sec.7
257
Whichispermissible,however,undertheconditionssetforthinSec.14,Rule14.
258
As once held, when the defendant is a nonresident, personal service of summons in the state is
essentialtotheacquisitionofjurisdictionoverhim(BancoDoBrasilvs.CA,333SCRA545)
Thisisinfacttheonlywayofacquiringjurisdictionoverhispersonifhedoesnotvoluntarilyappearinthe
action.Summonsbypublicationagainstanonresidentinanactioninpersonamisnotapropermodeof
service.
259
Theplaceandthefrequencyofthepublicationisamatterforthecourttodetermine(Sec.14)
Theruledoesnotdistinguishwhethertheactionisinpersonam,inremorquasiinrem.Thetenorofthe
rule authorizes summons by publication whatever the action may be as long as the identity of the
defendantisunknownorhiswhereaboutsareunknown.Underthepreviousrulings,jurisdictionoverthe
defendant in an action in personam cannot be acquired by the summons by publication (Pantaleon vs.
Asuncion,105Phil.761;ConsolidatedPlywareIndustriesvs.Breva,166SCRA516).
260
asundertherulesonextraterritorialservice(Sec.15)
261
asinSec.6
262
underSec.16
Like in the case of an unknown defendant or one whose whereabouts are unknown, the rule affecting
residentswhoaretemporarilyoutofthePhilippinesappliesinanyaction.Also,summonsbypublication
maybeeffectedagainstthedefendant.
263
Montalbanvs.Maximo,22SCRA1070
65
(a) When the action affects the personal status of the plaintiffs;
(b) When the action relates to, or the subject of which is, property within the
Philippines, in which the defendant has or claims a lien or interest, actual or contingent;
(c) When the relief demanded in such action consists, wholly or in part, in
excluding the defendant from any interest in property located in the Philippines; and
(d) When the defendant non-residents property has been attached within the
Philippines.266
On prisoners On a minor
By serving on the officer having the On him personally and on his legal guardian
management of the jail or institution who is if he has one, or if none, upon his guardian
deemed deputized as a special sheriff for said ad litem whose appointment shall be applied
purpose.268 for by the plaintiff, or upon a person
exercising parental authority over him, but
the court may order that service made on a
minor of 15 or more years of age shall be
sufficient.269
8. Proof of service
When the service has been completed, the server shall, within five (5) days
therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs
Thisisbecauseevenifheisabroad,hehasaresidenceinthePhilippinesoraplaceofbusinessandsurely,
becauseofhisabsence,hecannotbeservedinpersonwithinareasonabletime.
264
Iftheactionisinpersonam,thismodeofservicewillnotbeavailable.Thereisnoextraterritorialservice
ofsummonsinanactioninpersonam.Hence,extraterritorialserviceuponanonresidentinanactionfor
injunction which is in personam is not proper (Kawasaki Port Service Corp. vs. Amores, 199 SCRA 230;
BancoDoBrasilvs.CA,supra)
265
underSec.15
266
Requisites:
(a)Thedefendantisnonresident;
(b)HeisnotfoundinthePhilippines;and
(c)Theactionagainsthimiseitherinremorquasiinrem.
267
Ifservedbythesheriff,hisdeputy,orotherpropercourtofficer,thereisnoneedtobeswornbutthisis
neededifservedbyotherpersons.
268
Sec.9
269
Sec.10
66
counsel, and shall return the summons to the clerk who issued it, accompanied by proof of
service.270
After the completion of the service, a proof of service is required to be filed by the
server of the summons. The proof of service of summons shall be made in writing by the
server and shall setforth the manner, place and date of service; shall specify any papers which
have been served with the process and the name of the person who received the same; and
shall be sworn to when made by a person other than a sheriff or his deputy.271
G. Motions272
1. Motions in general
270
Sec.4
271
Sec.18
272
Rule15
273
Sometimes, this kind of motion may be granted as when the motion asks for the correction of an
evidently misspelled word, or obvious error in addition, or subtraction of an amount, or when a
clarificationissought,orwhenthemotionisoneforextensionofone(1)ortwo(2)dayswithinwhichto
fileapleading.
274
such as one where the court is requested by an administrator of an estate to allow sale of certain
propertiesatcertainprices.
275
Anexamplewouldbeamotionfiledoutoftime,becausethismotionmaybedisposedofthecourton
itsowninitiative.Anotherexamplewouldbeamotiontosellcertainpropertyaftertheperiodgivenby
thecourttothedebtortopayhaselapsed,andsuchpreviousorder hadspecifiedthatthepropertybe
soldincaseofdefault(Govt.vs.DelosCajigas,55Phil.669).
67
a. Definition of a motion
Motion Pleading
An application for relief other than a A written statement of the respective claims
pleading.280 and defenses of the parties submitted to the
court for appropriate judgment.281
An application for an order not included in It relates to the cause of action; interested in
the judgment. the matters to be included in the judgment.
276
60CJS5
277
Inastrictsense,itisamotionattackingaproceeding,andcontainingalltheobjectionsavailableatsaid
time,becauseallobjectionsnotsoincludedshallbedeemedwaived.
278
seeRule17,infra
279
Sec.1
280
Sec.1,Rule15
281
Sec.1,Rule6
282
Sec.2,id.
68
A motion shall state the order sought to be obtained, and the grounds which it is
based, and if necessary shall be accompanied by supporting affidavits and other papers.285
All motions must be in writing except those made in open court or in the course of a
hearing or trial.286
Every written motion shall be set for hearing by the applicant except for motions
which the court may act upon without prejudicing the rights of the adverse party,
The motion, which contains the notice of hearing, shall be served as to ensure its
receipt by the other party at least three (3) days before the date of hearing, unless the court
for good cause sets the hearing on shorter notice.287
Requires that every motion that attacks a pleading, judgment, order or proceeding
shall include all grounds then available, and all objections not so included shall be deemed
waived.288
283
Lyonvs.Smith,66Mich.676
284
37Am.Jur.502
285
Sec.3
286
Sec.2
287
Itshallbeaddressedtoallpartiesconcerned,andshallspecifythetimeanddateofthehearingwhich
mustnotbelaterthanten(10)daysafterthefilingofthemotion(Sec.4).
288
Sec.8
Amotiontodismissisatypicalexampleofamotionsubjecttoomnibusmotionrule,sinceamotionto
dismissattacksacomplaintwhichisapleading.Followingtheomnibusmotionrule,ifamotiontodismiss
69
The rule is subject to the provisions of Sec. 1, Rule 9,289where the objections
mentioned therein are not deemed waived even if not included in the motion.
One which requires the parties to be heard One which does not require that the parties
before a ruling on the motion is made by the be heard, and which the court may act upon
court.293 without prejudicing the rights of the other
party.294
g. Pro-forma motion
One which does not satisfy the requirements of the rules and one which will be
treated as a motion intended to delay the proceedings.295
is filed, then the motion must invoke all objections which are available at the time of the filing of said
motion. If the objection which is available at the time is not included in the motion, that ground is
deemedwaived.Itcannolongerbeinvokedasaffirmativedefenseintheanswerwhichthemovantmay
filefollowingthedenialofhismotiontodismiss.
289
supra
290
litispendencia
291
resjudicata
292
Prescription
293
Sec.4establishesthegeneralrulethateverywrittenmotionisdeemedalitigatedmotion.Amotionto
dismiss(Rule16),amotionforjudgmentonthepleadings(Rule34)andasummaryjudgment(Rule35)
arelitigatedmotions.
294
ThiskindofmotionisnotcoveredbythehearingrequirementoftheRules(Sec.2)
Amotionforextensionoftimeisanexpartemotionmadetothecourtinbehalfofoneortheotherof
thepartiestotheaction,intheabsenceandusuallywithouttheknowledgeoftheotherpartyorparties.
295
MarikinaDevelopmentCorporationvs.Flojo,251SCRA87
TheCourthasconsistentlyheldthatamotionwhichdoesnotmeettherequirementsofSections4and5
ofRule15onhearingandnoticeofthehearingisamerescrapofpaper,whichtheclerkofcourthasno
righttoreceiveandthetrialcourthasnoauthoritytoactupon.Serviceofacopyofamotioncontaininga
noticeofthetimeandtheplaceofhearingofthatmotionisamandatoryrequirement,andthefailureof
movantstocomplywiththeserequirementsrenderstheirmotionsfatallydefective(VetteIndustrialSales
vs.Cheng,GR170232170301,Dec.5,2006).
70
The purpose of the motion is to seek an order from the court directing the pleader
to submit a bill of particulars which avers matters with sufficient definitiveness or
particularity to enable the movant to prepare his responsive pleading,297 not to enable the
movant to prepare for trial.298
A motion for a bill of particulars is to be filed before, not after responding to a
pleading.299
In case of a reply to which no responsive pleading is provided for by the Rules, the
motion for bill of particulars must be filed within ten (10) days of the service of said reply.300
296
Rule12
Amotionforbillofparticularsisnotapleading,hence,notaresponsivepleading.
297
Sec.1
Inotherwords,thefunctionofabillofparticularsistoclarifytheallegationsinthepleadingsoanadverse
partymaybeinformedwithcertaintyoftheexactcharacterofacauseofactionoradefense.Withoutthe
clarifications sought by the motion, the movant may be deprived of the opportunity to submit an
intelligentresponsivepleading.
A partys right to move for a bill of particulars in accordance with Sec. 1, Rule 12 (doesnt include
matters evidentiary in nature, which are covered by Modes of Discovery) when the allegations of the
complaintarevagueanduncertainisintendedtoaffordapartynotonlyachancetoproperlypreparea
responsivepleadingbutalsoanopportunitytoprepareanintelligentanswer.Thisistoavertthedanger
wheretheopposingpartywillfinddifficultyinsquarelymeetingtheissuesraisedagainsthimandplead
thecorrespondingdefenseswhichifnottimelyraisedintheanswerwillbedeemedwaived.Theproper
preparationofanintelligentanswerrequiresinformationastotheprecisenature,character,scopeand
extentofthecauseofactioninorderthatthepleadermaybeabletosquarelymeettheissuesraised,
therebycircumscribingthemwithindeterminedconfinesandpreventingsurprisesduringthetrial,andin
order that he may set forth his defenses which may not be so readily availed of if the allegations
controvertedarevague,indefinite,uncertainoraremeregeneralconclusions.Thelattertaskassumes
significance because defenses not pleaded (save those excepted in Sec. 2, Rule 9, and whenever
appropriate, the defenses of prescription) in a motion to dismiss or in the answer are deemed waived
(Republicvs.Sandiganbayan,GR115748,Aug.7,1996).
298
ThelatterpurposeistheultimateobjectiveofthediscoveryproceduresfromRules23to29(infra)and
evenofapretrialunderRule18(infra).
299
Ibid.
TheperiodtofileamotionreferstotheperiodforfilingtheresponsivepleadinginRule11.(supra)
Thus,wherethemotionforbillofparticularsisdirectedtoacomplaint,themotionshouldbefiledwithin
fifteen (15) days after service of summons. If the motion is directed to a counterclaim, then the same
mustbefiledwithinten(10)daysfromserviceofthecounterclaim,whichistheperiodprovidedfor
300
Sec.1
71
If a motion for bill of particulars is granted, the court shall order the pleader to
submit a bill of particulars to the pleading to which the motion is directed. The compliance
shall be effected within ten (10) days from notice of the order, or within the period fixed by
the court.301
In complying with the order, the pleader may file the bill of particulars either in a
separate pleading or in the form or an amended pleading.302 The bill of particulars submitted
becomes part of the pleading for which it is intended.303
A seasonable motion for a bill of particulars interrupts the period within which to
answer. After service of the bill of particulars or of a more definite pleading, of after notice
of denial of his motion, the moving party shall have the same time to serve his responsive
pleading, if any is permitted by the rules, as that to which he was entitled at the time of
serving his motion, but no less than five (5) days in any event.305
Whether or not his motion is granted, the movant may file his responsive pleading.
When he files a motion for BOP, the period to file the responsive pleading is stayed or
interrupted. After service of the bill of particulars upon him or after notice of the denial of
his motion, he may file his responsive pleading within the period to which he is entitled to at
the time the motion for bill of particulars is filed.306
If the motion is denied, then he has the same number of days within which to file his
pleading counted from his receipt of the notice of the order denying his motion. If the
movant has less than five (5) days to file his responsive pleading after service of the bill of
301
Sec.3
302
Ibid.
303
Sec.6
304
Sec.4
305
Iibid.,Tanvs.Sandiganbayan,GR84195,Dec.11,1989
306
Ifhehasstilleleven(11)daystofilehispleadingatthetimethemotionforBOPisfiled,thenhehasthe
samenumberofdaystofilehisresponsivepleadingfromtheserviceuponhimoftheBOP.
72
particulars or after notice of the denial of his motion, he nevertheless has five (5) days within
which to file his responsive pleading.307
3. Motion to Dismiss308
a. Grounds
(a) The court has no jurisdiction over the person of the defending party;
(b) The court has no jurisdiction over the subject matter of the claim;
(c) The venue is improperly laid;
(d) The plaintiff has no legal capacity to sue;
(e) There is another action pending between the same parties and for the same
310
cause;
(f) The cause of action is barred by a prior judgment311 or by the statute of
limitations;312
(g) The pleading asserting the claim states no cause of action;
(h) The claim or demand set forth in the plaintiffs pleading has been paid, waived,
abandoned, or otherwise extinguished;
(i) The claim on which the action is founded is unenforceable under the provisions
of the statute of frauds; and
(j) A condition precedent for filing the action has not been complied with.313
307
Sec.5
308
Rule16
309
Sec.1,Rule15
Amotiontodismissisnotapleading.Itismerelyamotion
ThepleadingsallowedundertheRulesare:(a)complaint,(b)answer,(c)counterclaim,(d)crossclaim,(e)
third(fourth,etc.)partycomplaint,(f)complaintinintervention(Sec.2,Rule6),andreply(Sec.10,Rule
6).Amotionisnotoneofthosespecificallydesignatedasapleading.
310
lispendens
311
resjudicata
312
prescription
313
Sec.1
The language of the rule, particularly on the relation of the words abandoned and otherwise
extinguished to the phrase claim or demand deemed set forth in the plaintiffs pleading is broad
enoughto include within its ambitthe defense of barbylaches. However, when a party moves for the
dismissal ofthecomplaintbased on laches,thetrialcourtmustseta hearingonthemotionwherethe
parties shall submit not only their arguments on the questions of law but also their evidence on the
questions of fact involved. Thus, being factual in nature, the elements of laches must be proved or
disproved through the presentation of evidence by the parties (Pineda vs. Heirs of Eliseo Guevara, G.R.
143188,Feb.14,2007)
73
b. Resolution of Motion
The court shall not defer the resolution of the motion for the reason that the ground
relied upon is not indubitable. In every case, the resolution shall state clearly and distinctly
the reasons therefor.314
Dismissal is final but is without prejudice315 - the plaintiff may simply re-file the action
depending upon the ground for the dismissal
of the action.316
Dismissal is final317 and it bars the re-filing of - he may appeal from the order of
the case dismissal.318
Dismissal is without prejudice and the court - the plaintiff may resort to certiorari.319
gravely abused its discretion
314
Sec.3
315
interlocutory
316
For instance, if the ground for dismissal was anchored on improper venue, the plaintiff may file the
actioninthepropervenue.
317
likeresjudicata,prescriptionandextinguishmentoftheobligationorviolationofthestatuteoffrauds
318
Sec.5
Since the complaint cannot be refiled, the dismissal is with prejudice. Under Sec. 1[h], Rule 41, it is an
order dismissing an action without prejudice which cannot be appealed from. Conversely, where the
dismissaliswithprejudice,anappealfromtheorderofdismissalisnotprecluded.
319
Sec.1,Rule41
320
supra
321
Sec.4
74
(2) Civil action under Rule 65.322 This remedy, however, is predicated upon an
allegation and a showing that the denial of
the motion was tainted with grave abuse of
discretion amounting to lack of jurisdiction.
Asarule,thefilingofananswer,goingthroughtheusualtrialprocess,andthefilingofatimelyappeal
fromanadversejudgmentaretheproperremediesagainstadenialofamotiontodismiss.Thefilingofan
appeal from an order denying a motion to dismiss is not the remedy prescribed by existing rules. The
orderofdenial,beinginterlocutoryisnotappealablebyexpressprovisionofSec1[c],Rule41.
322
Certiorari,ProhibitionandMandamus
323
The denial of a motion to dismiss is interlocutory, hence, the remedy stated. The denial should be
raisedasanerrorofthetrialcourtonappeal.
Certiorari is not the proper remedy. A writ of certiorari is not intended to correct every controversial
interlocutoryruling:Itisresortedtoonlytocorrectagraveabuseofdiscretionorawhimsicalexerciseof
judgment equivalent to lack of jurisdiction. Its function is limited to keeping an inferior court within its
jurisdiction and to relieve persons from arbitrary acts, acts which courts or judges have no power or
authorityinlawtoperform.Itisnotdesignedtocorrecterroneousfindingsandconclusionsmadeby
the courts (Bonifacio Construction Management Corp. vs. Hon. Estela Bernabe, GR 148174, June 30,
2005).
75
a) prior judgment
b) the statute of limitations
c) payment, waiver, abandonment or extinguishment of the claim
d) unenforceability of the cause of action under the statute of frauds,
the dismissal shall bar the refiling of the same action or claim, but this is without
prejudice to the right of the other party to appeal from the order of dismissal because such
dismissal is a final order, not merely interlocutory.324
If no motion to dismiss has been filed, any of the grounds provided for dismissal
may be pleaded as an affirmative defense in the answer and a preliminary hearing325 may be
had thereon as if a motion to dismiss has been filed.326
g. Bar by dismissal327
(a) public policy and necessity, which makes it to the interest of the State that
there should be an end to litigation;328and
(b) the hardship on the individual of being vexed twice for the same cause.329
324
Sec.5
325
inthediscretionofthecourt
326
Sec.6
Implied under this section is that the grounds for a motion to dismiss are not waived even if the
defendant fails to file a motion to dismiss because he may still avail of the defenses under Rule 16 as
affirmativedefensesinhisanswer.
The preliminary hearing authorized on the affirmative defenses raised in the answer applies only if no
motion to dismiss has been filed. As a rule, a preliminary hearing is not authorized when a motion to
dismiss has been filed. An exception previously carved out is if the trial court had not categorically
resolvedthemotiontodismiss.Anotherexceptionwouldbejustifiedundertheliberalconstructionrule
as when it is evident that the action is barred by res judicata. A strict application of Sec. 6 would
accordinglyleadtoabsurditywhenanobviouslybarredcomplaintcontinuestobelitigated.Thedenialof
amotiontodismissdoesnotprecludeanyfuturerelianceonthegroundsreliedthereupon(Sps.Rasdas
vs.Sps.Villa,GR157605,Dec.13,2005).
327
Resjudicata
328
republicaeutsitlitium
329
nemodebetbisvexarieteademcausa
76
Accordingly, courts will simply refuse to reopen what has been decided. They will
not allow the same parties or their privies to litigate anew a question once it has been
considered and decided with finality. Litigations must end and terminate sometime and
somewhere. The effective and efficient administration of justice requires that once a
judgment has become final, the prevailing party should not be deprived of the fruits of the
verdict by subsequent suits on the same issues filed by the same parties.330
Usually filed before the service and filing of Made after the plaintiff rests his case;
the answer;
330
Fells,Inc.vs.Prov.ofBatangas,G.R.168557,Feb.19,2007
331
Itbarstheprosecutionofasecondactionuponthesameclaim,demandorcauseofaction.
332
HeirsofWenceslaoTabiavs.CA,G.R.129377&129399,Feb.22,2007
Itstatesthatafactorquestionwhichwasinissueinaformersuitandwastherejudiciallypassedupon
anddeterminedbyacourtofcompetentjurisdiction,isconclusivelysettledbythejudgmentthereinasfar
asthepartiestothatactionandpersonsinprivitywiththemareconcernedandcannotbeagainlitigated
in any future action between such parties or their privies, in the same court or any other court of
concurrent jurisdiction on either the same or different cause of action, while the judgment remains
unreversedbyproperauthority(Moragavs.SpousesSomo,G.R.166781,Sept.5,2006)
Groundsfordismissalthatbarrefilling:
(a)causeofactionisbarredbyapriorjudgment;
(b)causeofactionisbarredbythestatuteoflimitations;
(c)claimordemandsetforthintheplaintiff'spleadinghasbeenpaid,waived,abandoned,orotherwise
extinguished;
(d)claimisunenforceableunderthestatuteoffrauds.
333
underRule33
Demurrertoevidenceisamotiontodismissfiledbythedefendantaftertheplaintiffhadrestedhiscase
on the ground of insufficiency of evidence. It may be filed after the plaintiff has completed the
presentationofhisevidence.Itisanaidorinstrumentfortheexpeditiousterminationofanactionsimilar
toamotiontodismiss,whichthecourtortribunalmayeithergrantordeny.
77
H. Dismissal of Actions334
By filing a notice of dismissal at any time before the service of an answer or the
service of a motion for summary judgment,. Upon the filing of the notice of dismissal, the
court shall issue an order confirming the dismissal.335
This dismissal shall be without prejudice to the re-filing of the complaint, except
when:
Once either an answer or motion for summary judgment has been served on the
plaintiff, the dismissal is no longer a matter of right and will require the filing of a motion to
dismiss, not a mere notice of dismissal. The motion to dismiss will now be subject to the
approval of the court which will decide on the motion upon such terms and conditions as
are just.337
334
Rule17
335
Sec.1
Itisnottheorderconfirmingthedismissalwhichoperatestodismissthecomplaint.Asthenameof
the order implies, said order merely confirms a dismissal already effected by the filing of the notice of
dismissal.Thecourtdoesnothavetoapprovethedismissalbecauseithasnodiscretiononthematter.
Beforeanansweroramotionforsummaryjudgmenthasbeenservedupontheplaintiff,thedismissalby
theplaintiffbythefilingofthenoticeisamatterofright.Thedismissaloccursasofthedateofthenotice
isfiledbytheplaintiffandnotthedatethecourtissuestheorderconfirmingthedismissal.
Thedismissalasamatterofrightceaseswhenanansweroramotionforsummaryjudgmentisserved
on the plaintiff and not when the answer or the motion is filed with the court. Thus, if a notice of
dismissalisfiledbytheplaintiffevenafterananswer hasbeenfiledincourtbutbeforetheresponsive
pleadinghasbeenservedontheplaintiff,thenoticeofdismissalisstillamatterofright.
336
Twodismissalrule:
Applieswhentheplaintiffhas
(a)twicedismissedanaction,
(b)basedonorincludingthesameclaim,
(c)inacourtofcompetentjurisdiction.
The second notice of dismissal will bar the refiling of the action because it will operate as an
adjudication of the claim upon the merits. In other words, the claim may only be filed twice, the first
beingtheclaimembodiedintheoriginalcomplaint.Sinceasarule,thedismissaliswithoutprejudice,the
sameclaimmaybefiled.Iftherefilledclaimorcomplaintisdismissedagainthroughasecondnoticeof
dismissal,thatsecondnoticetriggerstheapplicationofthetwodismissalruleandthedismissalistobe
deemedonewithprejudicebecauseitisconsideredasanadjudicationuponthemerits.
337
Sec.2
Thedismissalisnolongeramatterofrightonthepartoftheplaintiffbutamatterofdiscretionuponthe
court.
78
If a counterclaim has already been pleaded by the defendant prior to the service
upon him of the plaintiffs motion to dismiss, and the court grants said motion to dismiss,
the dismissalshall be limited to the complaint.338
A complaint may be dismissed even if the plaintiff has no desire to have the same
dismissed. The dismissal in this case will be through reasons attributed to his fault.339
The dismissal shall have the effect of an adjudication upon the merits and is thus
with prejudice to the re-filing of the action, unless the court declares otherwise.340
The dismissal due to the fault of the plaintiff may be done by the court motu proprio341
or upon a motion filed by the defendant.342
The rule on the dismissal of a complaint applies to the dismissal of any counterclaim,
cross-claim, or third-party claim.
338
Ibid.
Thephraseologyoftheprovisionisclear:thecounterclaimisnotdismissed,whetheritisacompulsoryor
a permissive counterclaim because the rule makes no distinction. The defendant if he so desires may
prosecutehiscounterclaimeitherinaseparateactionorinthesameaction.Shouldhechoosetohavehis
counterclaimresolvedinthesameaction,hemustnotifythecourtofhispreferencewithinfifteen(15)
daysfromthenoticeoftheplaintiffsmotiontodismiss.Shouldheopttoprosecutehiscounterclaimina
separate action, the court should render the corresponding order granting and reserving his right to
prosecutehisclaiminaseparatecomplaint.
AsimilarruleisadoptedinSec.6,Rule16andSec.3,Rule17,whereinthedismissalofthecounterclaim
doesnotcarrywithitthedismissalofthecounterclaim.Thesameprovisionalsograntsthedefendanta
choiceintheprosecutionofhiscounterclaim.
339
Grounds:
Failureoftheplaintiff
(a)toappearonthedateofthepresentationofhisevidenceinchiefwithoutjustifiablereasons;
(b)toprosecutehisactionforanunreasonablelengthoftime;
(c)tocomplywiththeRulesofCourt;or
(d)toobeyanyorderofthecourt.
340
knownasJudgmentofNonsuit.
341
Thecourtmaydismissanactionmotuproprio:
Failure
(a)toprosecuteforunreasonablelengthoftime;
(b)toappearatthetrial;
(c)tocomplywiththerules;
(d)tocomplywiththeorderofthecourt;and
(e)Lackofjurisdiction.
342
Sec.2
79
I. Pre-trial345
1. Concept of pre-trial
A mandatory conference and personal confrontation before the judge between the
parties and their respective counsel.
An informal meeting at which opposing attorneys confer usually with the judge, to
work toward the disposition of the case by discussing matters of evidence and narrowing the
issues that will be tried.346
It is conducted after the last pleading has been served and filed.347
Pre-trial is a procedural device held prior to the trial for the court to consider the
following purposes:
343
supra
344
Sec.4
345
Rule18
346
BlacksLawDictionary,9thEd.
347
Itshallbethedutyoftheplaintifftopromptlymoveexpartethatthecasebesetforpretrial.
348
Abubakarvs.Abubakar,317SCRA264
349
InterliningCorp.vs.Phil.TrustCo.,G.R.144190,March6,2002
80
3. Notice of pre-trial
Shall be served on the counsel of the party if the latter is represented by counsel.
Otherwise, the notice shall be served on the party himself. The counsel is charged with the
duty of notifying his client of the date, time and place of the pre-trial.351
It shall be the duty of both the parties and their counsels to appear at the pre-trial.352
The failure of the plaintiff to appear shall be cause for the dismissal of the action.
This dismissal shall be with prejudice except when the court orders otherwise.353
The failure of the defendant to appear shall be cause to allow the plaintiff to present
his evidence ex parte and for the court to render judgment on the basis of the evidence
presented by the plaintiff.354
350
Sec.2
351
Sec.3
Noticeofpretrialissoimportantthatitwouldbegraveabuseofdiscretionforthecourt,forexample,to
allowtheplaintifftopresenthisevidenceexparteforfailureofthedefendanttoappearbeforethepre
trialwhodidnotreceivethroughhiscounselanoticeofpretrial.Accordingly,thereisnolegalbasisfora
courttoconsiderapartynotifiedofthepretrialandtoconsiderthatthereisnolongeraneedtosend
notice of pretrial merely because it was his counsel who suggested the date of pretrial (Agulto vs.
Tucson,476SCRA395).
352
Sec.4
353
Sec.5
Sincethedismissaloftheactionshallbewithprejudice,unlessotherwiseprovided,thesameshallhave
theeffectofanadjudicationonthemerits,thus,final.Theremedyoftheplaintiffistoappealfromthe
orderofdismissal.Anorderdismissinganactionwithprejudiceisappealable
UndertheRules,itisonlywhentheorderofdismissaliswithoutprejudice,thatappealcannotbeavailed
of(Sec.1[h],Rule41).Sinceappealisavailable,certiorariisnottheremedybecausetheapplicationofa
petitionforcertiorariunderRule65isconditionedupontheabsenceofappealoranyplain,speedyand
adequateremedy(Sec.1).
354
Sec.5
Theorderofthecourtallowingtheplaintifftopresenthisevidenceexpartedoesnotdisposeofthecase
withfinality.Theorderistherefore,merelyinterlocutory;hence,notappealable.
UnderSec.1(c)ofRule41,noappealmaybetakenfromaninterlocutoryorder.Thedefendantwhofeels
aggrieved by the order may move for the reconsideration of the order and if the denial is tainted with
graveabuseofdiscretion,hemayfileapetitionforcertiorari.
81
The parties shall file with the court their respective pre-trial briefs which shall be
received at least three (3) days before the date of the pre-trial. This pre-trial brief shall be
served on the adverse party.356
Failure to file the pre-trial brief shall have the same effect as failure to appear at the
pre-trial.357
Set when the plaintiff moves ex parte to set Ordered by the court and no motion to set
the case for pre-trial.360 the case for pre-trial is required from either
the prosecution or the defense.361
355
Insomeinstances,itisalsousedtorequestsuppressionofevidence.
Pretrialbriefstypicallyincludeapplicablecaselaw,rulesofprocedureandotherinformationrelevantto
thecase.
356
Sec.6
Thepretrialbriefshallcontainthefollowingmatters:
(a) A statement of their willingness to enter into an amicable settlement or alternative modes of
disputeresolution,indicatingthedesiredtermsthereof;
(b)Asummaryofadmittedfactsandproposedstipulationoffacts;
(c)Theissuestobetriedorresolved;
(d)Thedocumentsorexhibitstobepresented,statingthepurposesthereto;
(e) A manifestation of their having availed of or their intention to avail of discovery procedures or
referraltocommissioners;and
(f)Thenumberandnamesofthewitnesses,andthesubstanceoftheirrespectivetestimonies.(Sec.6)
357
Ibid.
Hence,ifitistheplaintiffwhofailstofileapretrialbrief,suchfailureshallbecausefordismissalofthe
action.Ifitisthedefendantwhofailstodoso,suchfailureshallbecausetoallowtheplaintifftopresent
hisevidenceexparte.Apretrialbriefisnotrequiredinacriminalcase.
358
Rule18
359
Rule118
360
Sec.1
361
Ibid.
82
The motion to set the case for pre-trial is The pre-trial is ordered by the court after
made after the last pleading has been served arraignment and within thirty (30) days from
and filed.362 the date the court acquires jurisdiction over
the person of the accused.363
Considers the possibility of an amicable Does not include the considering of the
settlement as an important objective.364 possibility of amicable settlement of
criminal liability as one of its purposes.365
The agreements and admissions made in the All agreements or admissions made or
pre-trial are not required to be signed by the entered during the pre-trial conference shall
parties and their counsels. They are to be be reduced in writing and signed by the
contained in the record of pre-trial and the accused and counsel; otherwise, they cannot
pre- trial order.366 be used against the accused.367
The sanctions for non-appearance in a pre- The sanctions are imposed upon the counsel
trial are imposed upon the plaintiff or the for the accused or the prosecutor.369
defendant in a civil case.368
Mandatory Mandatory
Presence of defendant and counsel Accused need not be present, but his counsel
mandatory must be present, otherwise he may be
sanctioned.
362
Ibid.
363
Ibid.
364
Sec.2[a]
365
Ibid.
366
Sec.7
367
Sec.2
368
Sec.4
369
Sec.3
83
If the party to a case has already filed a complaint with the trial court without prior
recourse to arbitration, the proper procedure to enable an arbitration panel to resolve the
parties dispute pursuant to the contract is for the trial court to stay the proceedings. After
the arbitration proceeding has already been pursued and completed, then the trial court may
confirm the award made by the arbitration panel.371
A party has several judicial remedies available at its disposal after the Arbitration
Committee denied its Motion for Reconsideration:
(a) It may petition the proper RTC to issue an order vacating the award on the
grounds provided for under Sec. 24372 of the Arbitration Law;
(b) File a petition for review under Rule 43373 with the Court of Appeals on
questions of fact, of law, or mixed questions of fact and law;374
(c) File a petition for certiorari under Rule 65375 on the ground that the Arbitration
Committee acted without or in excess of its jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction.376
370
A.M.No.071108SC,seeReference
371
FiestaWorldMallCorp.vs.LinbergPhils.Inc.,GR152471,Aug.18,2006
372
(a)Thatawardwasprocuredbycorruption,fraud,orotherunduemeans;or
(b)Thattherewasevidentpartialityorcorruptioninthearbitratorsoranyofthem;or
(c)Thatthearbitratorswereguiltyofmisconductinrefusingtopostponethehearinguponsufficient
causeshown,orinrefusingtohearevidencepertinentandmaterialtothecontroversy;thatoneormore
ofthearbitratorswasdisqualifiedtoactassuchundersectionninehereof,andwillfullyrefrained from
disclosing such disqualification or of any other misbehavior by which the rights of any party have been
materiallyprejudiced;or
(d)Thatthearbitratorsexceededtheirpowers,orsoimperfectlyexecutedthem,thatamutual,final
anddefiniteawarduponthesubjectmattersubmittedtothemwasnotmade.
373
AppealsfromtheCourtofTaxAppealsandQuasijudicialagency
374
Sec.41,ADR
375
Certiorari,ProhibitionandMandamus
376
InsularSavingsBankvs.FarEastBankandTrustCo.,G.R.141818,June22,2006.
84
J. Intervention377
A legal proceeding by which a person who is not a party to the action is permitted by
the court to become a party by intervening in a pending action after meeting the conditions
and requirements set by the Rules. This third person who intervenes is one who is not
originally impleaded in the action.378
(a) There must be a motion for intervention filed before rendition of judgment by
the trial court.379
(1) A legal interest in the matter in litigation, the success of either of the
parties in the action, or against both parties;
(2) The movant is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof; and
(3) The intervention must not only unduly delay or prejudice the
adjudication of the rights of the original parties and that the intervenors rights may
not be fully protected in aseparate proceeding.380
2. Time to intervene
377
Rule19
378
FirstPhilippineHoldingsCorp.Sandiganbayan,253SCRA30
Interventionismerelyacollateraloraccessoryorancillarytotheprincipalactionandnotanindependent
proceeding. Withthe finaldismissal oftheoriginalaction,thecomplaintininterventioncanno
longerbeactedupon.
379
Sec.1
Amotionisnecessarybecauseleaveofcourtisrequiredbeforeapersonmaybeallowedtointervene.
380
MabayoFarms,Inc.vs.CA,G.R.140058,Aug.1,2002
381
Sec.2
Intervention after trial and decision can no longer be permitted (Yau vs. Manila Banking Corp., G.R.
126731,July11,2002)
382
Mandamuswillnotlieexceptincaseofgraveabuseofdiscretion.
85
K. Subpoena383
A process directed to a person requiring him to attend and to testify at the hearing or
the trial of an action, or at any investigation conducted under the laws of the Philippines, or
for taking of his deposition.384
1. Subpoena ducestecum
2. Subpoena ad testificandum
3. Service of subpoena
a) The original shall be exhibited and a copy thereof delivered to the person on
whom it is served.
b) Tendering to him the fees for one days attendance and the kilometrage allowed
by the Rules, except that when a subpoena is issued by or on behalf of the Republic, or an
officer or agency thereof, the tender need not be made.
c) The service must be made so as to allow the witness a reasonable time for
preparation and travel to the place of attendance.
d) If the subpoena is duces tecum, the reasonable cost of producing the books,
documents or things demanded shall also be tendered.
Service of a subpoena shall be made by the sheriff, by his deputy, or by any other
person specially authorized, who is not a party and is not less than eighteen (18) years of
age.387
383
Rule21
384
Sec.1
385
BlacksLawDictionary,9thEd
386
Ibid.
387
Sec.6
86
Failure by any person without adequate cause to obey a subpoena served upon him
shall be deemed a contempt of the court from which the subpoena is issued.390
5. Quashing of subpoena
Grounds: Ground:
In either case, the subpoena may be quashed on the ground that the witness
fees and kilometrage allowed by the Rules were not tendered when the subpoena was
served.392
L. Modes of Discovery393
388
uponproofoftheservicethereofandofthefailureofthewitness
389
Sec.8
390
Ifthesubpoenawasnotissuedbyacourt,thedisobediencetheretoshallbepunishedinaccordance
withtheapplicablelaworRule(Sec.9)
Exceptions:
a)Wherethewitnessresidesmorethanonehundred(100)kilometersfromhisresidencetothe
placewhereheistotestifybytheordinarycourseoftravel(ViatoryRight),or
b) Where the permission of the court in which the detained prisoners case is pending was not
obtained.
391
Sec.4
Thisreferstosubpoenaducestecum
392
Ibid.
87
a. Meaning of deposition
The taking of the testimony of any person, whether he be a party or not, but at the
instance of a party to the action.400
b. Uses; Scope of examination
393
Rules2328
394
Rule25
395
Rule26
396
Rule27
397
Rule28
The importance of the rules of discovery is that they shorten the period of litigation and speed up
adjudication.Theevidentpurposeistoenabletheparties,consistentwithrecognizedprinciples,toobtain
thefullestpossibleknowledgeofthefactsandissuesbeforeciviltrialsandthuspreventsaidtrialsfrom
beingcarriedoninthedark.Therulesofdiscoveryserveas(a)devices,alongwiththepretrialhearing
under Rule 18, to narrow and clarify the basic issues between the parties; and (b) devices for
ascertainingthefactsrelativetothoseissues(Republicvs.Sandiganbayan,204SCRA212)
Basicpurposesoftherulesofdiscovery:
(a)Toenableapartytoobtainknowledgeofmaterialfactswithintheknowledgeoftheadverseparty
orofthirdpartiesthroughdepositions;
(b) To obtain knowledge of material facts or admissions from the adverse party through written
interrogatories;
(c) To obtain admissions from the adverse party regarding the genuineness of relevant
documentsorrelevantmattersoffactthroughrequestsforadmissions;
(d) To inspect relevant documents or objects, and lands or other property in the possession and
controloftheadverseparty;and
(e)Todeterminethephysicalormentalconditionofapartywhensuchisincontroversy(Kohvs.IAC,
144SCRA259).
398
Rule23
399
Rule24
400
Thistestimonyistakenoutofcourt.Itmaybeeitherbyoralexamination,orbyawritteninterrogatory
(Sec.1,Rule23)
Kindsofdepositions:
(a)Depositiondebeneesseonetakenpendingaction(Sec.1,Rule23);and
(b) Deposition in perpetua rei memoriam one taken prior to the institution of an apprehended or
intendedaction(Rule134).
88
Uses Scope
The deposition may be used for: Unless otherwise ordered by the court,407 the
deponent may be examined regarding:
1) Contradicting or impeaching the
testimony of the deponent as a witness; a) any matter not privileged
b) which is relevant to the pending
2) Any purpose by the adverse party where
action, whether relating to the claim or
the deponent is a party;
defense of any other party408
3) Any purpose by any party, where the
deponent is a witness if the court finds that: c) Not restricted by a protective order.
401
Sec.4,id
402
Rule24
403
Rule23
404
Rule24
Depositionbenneessetakenforuseduringapendingaction(Rule23).
Deposition in perpetuam rei memoriam taken to perpetuate a testimony for use in future
proceedingsaswhenitissoughtbeforetheexistenceofanaction,orforcasesonappeal.
89
May be made at the trial or hearing to receiving in evidence any deposition or part
thereof for any reason which would require the exclusion of the evidence if the witness were
then present and testifying.409
The party who fails to serve his answer to written interrogatories may be the subject
of a judgment by default.
405
sofarasadmissibleundertherulesofevidence
407
asprovidedbySec.16or18
408
including the existence, description, nature, custody, condition, and location of any books,
documents, or other tangible things and the identity and location of persons having knowledge of
relevantfacts
406
Sec.4,Rule23
409
subjecttotheprovisionsofSec.29(Sec.6)
410
Sec.18
90
A partyis advised to file and serve a written request for admission on the adverse
party of those material and relevant facts at issue which are, or ought to be, within
the personal knowledge of said adverse party.
The party who fails to file and serve the request shall not be permitted to present
evidence on such facts.413
c. Effect of admission
For the purpose of the pending action only and shall not constitute an admission by
him for any other purpose nor may the same be used against him in any other proceeding.417
411
Sec.6,Rule25
Thisprovisionencouragestheuseofwritteninterrogatoriesalthoughapartyisnotcompelledtousethis
discovery procedure, the rule imposes sanctions for his failure to serve written interrogatories by
deprivinghimoftheprivilegetocalltheadversepartyasawitnessortogiveadepositionpendingappeal.
412
Rule26
413
Sec.5
414
withinaperiod designated in therequest,which shall not be lessthan fifteen (15) daysafter service
thereof,orwithinsuchfurthertimeasthecourtmayallowonmotion
415
Sec.2,par.1
Objectionstoanyrequestforadmissionshallbesubmittedtothecourtbythepartyrequestedwithinthe
periodforandpriortothefilingofhisswornstatementascontemplatedintheprecedingparagraph
andhiscompliancetherewithshallbedeferreduntilsuchobjectionsareresolved,whichresolutionshall
bemadeasearlyaspracticable(par.2,id.).
416
Seea.above
417
Sec.3
91
A party who fails to file and serve a request for admission on the adverse party of
material and relevant facts at issue which are418within the personal knowledge of the latter,
shall not be permitted to present evidence on such facts.419
This Rule applies only to a pending action and the documents or things subject
of the motion should not be privileged and must be those within the possession, control
or custody of a party. The petition must be sufficiently described and identified as well as
material to any matter involved in the pending action.421
418
oroughttobe
419
Sec.5
420
Rule27
421
Sec.1
422
ibid;LimeCorp.vs.Moran,59Phil.175
423
Rule28
424
RequisitestoobtainOrderforExamination:
a)Amotionmustbefiledforthephysicalandmentalexamination;
b)ShowingGoodCausefortheexamination;
c)Noticetothepartytobeexaminedandtoalltheotherparties
d)Shallspecifythetime,place,manner,conditionandscopeoftheexaminationandthepersonor
personsbywhomitismade.
Consequences where the person examined requests and obtains a report or the results of the
examination:
1) He has to furnish the other party a copy of any previous or subsequent examination of the same
physicalandmentalcondition;and
2) He waives any privilege he may have in that action or any other involving the same
controversy regarding the testimony of any other person who has so examined him or may thereafter
examinehim.
92
Refusal to answer any The court may, upon application, compel a refusing deponent an
question answer.
93
Refusal to admit The court may426issue an order to pay the proponent the amount
actionable document of the reasonable expenses incurred in obtaining the order,
including attorney's fees.
M. Trial428
The judicial process of investigating and determining the legal controversies, starting
with the production of evidence by the plaintiff and ending with his closing arguments.429
The general rule is that a court may adjourn a trial from day to day, and to any stated
time, as the expeditious and convenient transaction of business may require.430
The court has no power to adjourn a trial for a period longer than one (1)
month from each adjournment, nor more than three (3) months in all, except when
authorized in writing by the Court Administrator.
A motion for postponement should not be filed on the last hour especially when
there is no reason why it could not have been presented earlier.431
425
Sec.3,Rule29
426
uponapplication
427
onmotionandnotice
428
Rule30
429
Acostavs.People,5SCRA774
430
Sec.2
431
Republicvs.Sandiganbayan,301SCRA237
94
1) A motion for postponement stating the ground relied upon must be filed;
2) The motion must be supported by an affidavit or sworn certification showing:
a. the materiality or relevancy of the evidence; and
b. that due diligence has been used to procure it.433
3) If the adverse party admits the facts given in evidence, the trial shall not be
postponed even if he reserves the right to object to the admissibility of the evidence.
1) A motion for postponement stating the ground relied upon must be filed;
2) The motion must be supported by an affidavit or sworn certification showing:
a. that the presence of the party or counsel at the trial is indispensable; and
b. that the character of his illness is such as to render his non-attendance
excusable.434
The parties to any action may agree in writing upon the facts involved in litigation
and submit the case for judgment on the facts agreed upon, withoutthe introduction of
evidence. No trial shall thus be held.
If the parties agree to only some facts in issue, trial shall be held as to the disputed
facts in such order as the court shall prescribe.
The agreed statement of facts is conclusiveon the parties, as well as on the court.
Neither of the parties may withdraw from the agreement, nor may the court ignore the
same.435
432
Garcesvs.Valenzuela,170SCRA745
433
Sec.3
434
Sec.4
435
McGuirevs.ManufacturersLifeIns.,87Phil.370
95
Subject to the provisions of Sec. 2,436 Rule 31, and unless the court for special
reasons otherwise directs, the trial shall be limited to the issues stated in the pre-trial order
and shall proceed as follows:
(b) The defendant shall then adduce evidence in support of his defense,
counterclaim, cross- claim and third party complaint;
(c) The third party defendant, if any, shall adduce evidence of his defense,
counterclaim, cross-claim and fourth-party complaint;
(d) The fourth party, and so forth, if any, shall adduce evidence of the material facts
pleaded by them;
(e) The parties against whom any counterclaim or cross-claim has been pleaded,
shall adduce evidence in support of their defense;437
(f) The parties may then respectively adduce rebutting evidence only, unless the
court438 permits them to adduce evidence upon their original case; and
(g) Upon admission of the evidence, the case shall be deemed submitted for
decision.439
When the accused admits the act or omission charged in the complaint or
information but interposes a lawful defense, the order of trial may be modified.440
436
Separatetrials
437
intheordertobeprescribedbythecourt
438
forgoodreasonsandinthefurtheranceofjustice
439
Unlessthecourtdirectsthepartiestoargueortosubmittheirrespectivememorandaoranyfurther
pleadings.
Ifseveraldefendantsorthirdpartydefendantsandsoforthhavingseparatedefensesappearbydifferent
counsel,thecourtshalldeterminetherelativeorderofpresentationoftheirevidence(Sec.5).
440
Sec.11,Rule119
Since the defendant admits the plaintiffs claim but seeks to avoid liability based on his affirmative
defense,heshallproceedfirsttoprovehisexemption.
96
When actions involving a common question of law or facts are pending before the
court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it
may order all the actions consolidated; and it may make such orders concerning proceedings
therein as may tend to avoid unnecessary costs or delay.443
Conditions:
a) May be made only in default or ex parte hearings, and in any case where the parties
agree in writing;
b) May be made only by the clerk of court who is a member of the bar;
c) Said clerk of court shall have no power to rule on of evidence objections to any
question or to the admission of exhibits; and
d) He shall submit his report and the transcripts of the proceedings, together with
the objections to be resolved by the court, within ten (10) days from termination of the
hearing.446
441
Separate
442
Rule31
443
Sec.1
Modesofconsolidatingcases:
1)Byrecastingthecasesalreadyinstitutedreshapingofthecasebyamendingthepleadingand
dismissing some cases and retaining only one case. There must be joinder of causes of action and of
parties;
2)Byconsolidationproperorbyconsolidatingtheexistingcasesitisajointtrialwithajointdecision,
thecasesretainingtheiroriginaldocketnumbers;and
3)Bytestcasemethodbyhearingonlytheprincipalcaseandsuspendingthehearingontheother
cases until judgment has been rendered in the principal case. The cases retain their original docket
numbers.
444
infurtheranceofconvenienceortoavoidprejudice
445
Sec.2
446
Asageneralrule,thejudgeshallpersonallyreceivetheevidencetobeadducedbytheparties.
97
7. Trial by commissioners447
By written consent of both parties, the court may order any or all of the issues in a
case to be referred to a commissioner448 to be agreed upon by the parties or to be appointed
by the court.449
When the parties do not consent, the court may, upon the application of either or on
its own motion, direct a reference to a commissioner in the following cases:
(a) When the trial of an issue of fact requires the examination of a long
account on either side, in which case the commissioner may be directed to hear and
report upon the whole issue or any specific question involved therein;
(b) When the taking of an account is necessary for the information of the
court before judgment, or for carrying a judgment or order into effect;
(c) When a question of fact, other than upon the pleadings, arises upon
motion or otherwise, in any stage of a case, or for carrying a judgment or order into
effect.450
Under the Rules, the courts order may specify or limit the powers of the
commissioner.451
(c) May issue subpoenas and subpoenas duces tecum, and swear witnesses; and
(d) Rule upon the admissibility of evidence, unless otherwise provided in the order of
reference.452
447
Rule32
448
includesareferee,anauditorandanexaminer(Sec.1)
449
Ibid.
450
Sec.2
451
Hence,theordermaydirecthimto:
(a)Reportonlyuponparticularissues;
(b)Doorperformparticularacts;or
(c)Receiveandreportevidenceonly
(d)Fixthedateforbeginningandclosingofthehearingsandforthefilingofhisreport
452
Sec.3
98
The commissioners report is not binding upon the court which is free to adopt,
modify, or reject454the report. The court may receive further evidence or recommit the report
with instructions.455
Notice of the filing of the report must be sent to the parties for the purpose of
giving them an opportunity to present their objections.456 The failure to grant the parties, in
due form, this opportunity to object, may, in some instances, constitute a serious error in
violation of their substantial rights.457
In the hearing to be conducted on the commissioners report, the court will review
only so much as may be drawn in question by proper objections. It is not expected to rehear
the case upon the entire record.458
453
Sec.9
454
inwholeorinpart
455
Sec.11;Baltazarvs.Limpin,49Phil.39
456
Santosvs.Guzman,45Phil.646
457
Govt.vs.Osorio,50Phil.864
Therule,however,isnotabsolute.InManilaTradingandSupplyCo.vs.Phil.LaborUnion,71Phil.539,it
wasruledthatalthoughthepartieswerenotnotifiedofthefilingofthecommissionersreports,andthe
courtfailedtosetsaidreportforhearing,ifthepartieswhoappearedbeforethecommissionerwereduly
representedbycounselandgivenanopportunitytobeheard,therequirementofdueprocesshasbeen
satisfied, and a decision on the basis of such report, with the other evidence of the case is a decision
whichmeetstherequirementsoffairandopenhearing.
458
Kreidtvs.McCulloughandCo.,37Phil.474
99
N. Demurrer to Evidence459
A motion to dismiss filed by the defendant after the plaintiff had rested his case on
the ground of insufficiency of evidence.460
1. Ground
The only ground is that upon the facts and the law the plaintiff has shown no right
to relief.
2. Effect of denial
3. Effect of grant
If the motion is granted and the order of dismissal is reversed on appeal, the movant
loses his right to present evidence on his behalf.462
If the demurrer is granted but on appeal the order of dismissal is reversed, the
defendant is deemed to have waived his right to present evidence.
Leave of court is not required before filing a Demurrer is filed with or without leave of
demurrer court.463
459
Rule33
460
BallentinesLawDictionary
TheprovisionoftheRulesgoverningdemurrertoevidencedoesnotapplytoanelectioncase(Gementiza
vs.COMELEC,353SCRA724).
461
An order denying a demurrer to evidence is interlocutory and is therefore, not appealable. It can
howeverbethesubjectofapetitionforcertiorariincaseofgraveabuseofdiscretionoran oppressive
exerciseofjudicialauthority.
462
Inthecaseofreversal,theappellatecourtshallrenderjudgmentfortheplaintiffbasedontheevidence
alone.
Itisnotcorrectfortheappellatecourtreversingtheordergrantingthedemurrertoremandthecaseto
thetrialcourtforfurtherproceedings.Theappellatecourtshould,insteadofremandingthecase,render
judgment on the basis of the evidence submitted by the plaintiff (Radiowealth Finance Corp. vs. Del
Rosario,335SCRA288).
463
Sec.23,Rule119
100
If the demurrer is granted, the order of The order of dismissal is not appealable
dismissal is appealable - since the motion is because of the constitutional policy against
interlocutory; double jeopardy - denial is tantamount to
acquittal, final and executory.
If the demurrer is denied, the defendant may The accused may adduce his evidence only if
proceed to present his evidence the demurrer is filed with leave of court. He
cannot present his evidence if he filed the
demurrer without leave of court.464
The plaintiff files a motion to deny motion The court may motu proprio deny the motion.
to demurrer to evidence
The theory of summary judgment is that although an answer may on its face appear
to tender issues - requiring trial - yet if it is demonstrated by affidavits, depositions, or
admissions that those issues are not genuine, but sham or fictitious, the Court is justified in
dispensing with the trial and rendering summary judgment for plaintiff. The court is
expected to act chiefly on the basis of the affidavits, depositions or admissions submitted by
the movants, and those of the other party in opposition thereto. The hearing contemplated467
is for the purpose of determining whether the issues are genuine or not, not to receive
evidence on the issues set up in the pleadings. A hearing is not thus de riguer. The matter may
be resolved, and usually is, on the basis of affidavits, depositions, admissions. Under the
circumstances of the case, a hearing would serve no purpose, and clearly unnecessary. The
summary judgment here was justified, considering the absence of opposing affidavits to
contradict the affidavits.468
464
Ibid.
465
Rules3436
466
BlacksLawDictionary,9thed.
467
with10daynotice
468
Galiciavs.Polo,L49668,Nov.14,1989;CarconDevt.Corp.vs.CA,GR88218,Dec.17,1989
101
2. Contents of a judgment
Two parts:
Where an answer fails to tender an issue, or otherwise admits the material allegations
of the adverse partys pleading, the court may, on motion of that party, direct
judgment on such pleading.472
4. Summary judgment473
469
The body of the decision is not the part of the judgment that is subject to execution but the fallo
becauseitisthelatterwhichisthejudgmentofthecourt.Theimportanceoffalloordispositiveportion
of a decision should state whether the complaint or petition is granted or denied, the specific relief
granted, and the costs. It is the dispositive part of the judgment that actually settles and declares the
rights and obligations of the parties, finally, definitively, andauthoritatively (Light Rail TransitAuthority
vs.CA,444SCRA125)
The general rule is that where there is a conflict between the fallo and the ratio decidendi, the fallo
controls. This rule rests on the theory that the fallo is the final order while the opinion in the body is
merelyastatementorderingnothing.Wheretheinevitableconclusionfromthebodyofthedecisionisso
clearthattherewasameremistakeinthedispositiveportion,thebodyofthedecisionprevails.(Poland
IndustrialLimitedvs.NationalDevelopmentCompany,467SCRA500)
470
Rule34
471
BlacksLawDictionary,9thEd.
472
Sec.1
Thefollowingactionscannotbethesubjectofajudgmentonthepleadings:
1)declarationofnullityofmarriage
2)annulmentofmarriage
3)legalseparation
In cases of unliquidated damages, or admission of the truth of allegation of adverse party, the
materialfactsallegedinthecomplaintshallalwaysbeproved.
473
oracceleratedjudgment.Seealso1.Judgmentwithouttrial,supra
474
Its object is to separate what is formal or pretended denial or averment from what is genuine and
substantial so thatonly the lattermay subject apartyininterestto the burden of trial.Moreover,said
summary judgment must be premised on the absence of any other triable genuine issues of fact.
Otherwise,themovantcannotbeallowedtoobtainimmediaterelief.Agenuineissueissuchissueoffact
whichrequirespresentationofevidenceasdistinguishedfromasham,fictitious,contrivedorfalseclaim.
Therequisitesare:
102
If judgment is not rendered upon the whole case, the court shall ascertain what
material facts exist without substantial controversy and those that are controverted. The
court shall then render a partial judgment with trial to proceed on the matters that remain
controverted.479
Supporting and opposing affidavits shall be made on personal knowledge, shall set
forth such facts as would be admissible in evidence, and shall show affirmatively that
the affiant is competent to testify to the matters stated therein. Certified true copies of all
papers or parts thereof referred to in the affidavit shall be attached thereto or served
therewith.480
Should it appear to its satisfaction at any time that any of the affidavits presentedare
in bad faith, or solely for the purpose of delay, the court shall forthwith order the offending
party or counsel to pay to the other party the amount of the reasonable expenses which the
filing of the affidavits caused him to incur, including attorneys fees. It may, after hearing,
further adjudge the offending party or counsel guilty of contempt.481
(a)theremustbenogenuineissueastoanymaterialfact,exceptfortheamountofdamages;and
(b)thepartypresentingthemotionforsummaryjudgmentmustbeentitledtoajudgmentasamatter
oflaw.
475
atanytimeafterthepleadinginanswertheretohasbeenserved
476
Sec.1
477
atanytime
478
Sec.2
479
Sec.4
480
Sec.5
481
Sec.6
103
The answer does not tender an issue There is an issue tendered in the answer, but
it is not genuine or real issue as may be
shown by affidavits and depositions that
there is no real issue and that the party is
entitled to judgment as a matter of right;
The movant must give a 3-day notice of The opposing party is given 10 days notice;
hearing
Only the plaintiff or the defendants as far as Either the plaintiff or the defendant may file
the counterclaim, cross-claim or third-party it.
complaint is concerned can file the same
Rendition of judgment is the filing of the same with the clerk of court. It is not the
pronouncement of the judgment in open court that constitutes the rendition. Even if the
judgment has already been put in writing and signed, it is still subject to amendment if it has
not yet been filed with the clerk of court and before its filing does not yet constitute the real
judgment of the court.482
It is not the writing of the judgment or its signing which constitutes rendition of the
judgment.483
The entry of judgment refers to the physical act performed by the clerk of court in
entering the dispositive portion of the judgment in the book of entries of judgment and after
the same has become final and executory.
If no appeal or motion for new trial or reconsideration is filed within the time
provided in the Rules, the judgment or final order shall forthwith be entered by the clerk in
the book of entries of judgments.484
482
Agovs.CA,6SCRA530
483
Castrovs.Malazo,99SCRA164
104
Remedies after judgment becomes final and (a) Petition for relief from judgment;
executory
(b) Action to annul a judgment;
(c) Certiorari; and
(d) Collateral attack of a judgment.
A judgment or final order determining the merits of the case shall be in writing personally and directly
preparedbythejudge,statingclearlyanddistinctlythefactsandthelawonwhichitisbased,signedby
him,andfiledwiththeclerkofthecourt(Sec.1,Rule36)
484
Thedate offinality of the judgment orfinalorder shall be deemed thedateof its entry.Therecord
shallcontainthedispositivepartofthejudgment orfinalorderandshallbesigned bytheclerk,witha
certificatebysaidclerkthatsuchjudgmentorfinalorderhasbecomefinalandexecutory(Sec.2)
Someproceedingsthefilingofwhichisreckonedfromthedateoftheentryofjudgment:
(a)theexecutionofajudgmentbymotioniswithinfive(5)yearsfromtheentryofthejudgment(Sec.
6,Rule39)
(b)thefilingofapetitionforreliefhas,asoneofitsperiods,notmorethansix(6)monthsfromthe
entryofthejudgmentorfinalorder(Sec.3,Rule38)
485
Rules3738,4047,5253
486
prohibitedinacasethatfallsundersummaryprocedure(Rules37,52)
487
Rules37,53
488
Rules40,41,42,43,45
105
a. Grounds
(1) Fraud,490 accident, mistake491 or (1) The damages awarded are excessive;
excusable negligence492 (2) The evidence is insufficient to justify the
decision or final order;
(2) Newly discovered evidence;493 and
(3) The decision or final order is contrary to
(3) Award of excessive damages, or law.495
insufficiency of the evidence to justify the
decision, or that the decision is against the
law.494
b. When to file
If filed with the trial court Within the period for taking an appeal.498
489
Rule37
490
extrinsic
491
offactandnotoflaw
492
whichordinaryprudencecouldnothaveguardedagainstandbyreasonofwhichsuchaggrievedparty
hasprobablybeenimpairedinhisrights
493
whichhecouldnot,withreasonablediligence,havediscoveredandproducedatthetrial,andwhichif
presentedwouldprobablyaltertheresult(BerryRule)
494
Sec.1
495
Ibid.
496
Ibid.
Amotionfornewtrialshouldbefiledwithintheperiodfortakinganappeal.Hence,itmustbefiled
beforethefinalityofthejudgment.Nomotionforextensionoftimetofileamotionforreconsideration
shallbeallowed.InDistilleriaLimtuacovs.CA,143SCRA92,itwassaidthattheperiodforfilingamotion
fornewtrialiswithintheperiodfortakinganappeal.
497
Sec.1,Rule53
498
Sec.1
106
If the motion is denied, the movants has a fresh periodof fifteen (15) days from
receipt or notice of the order denying or dismissing the motion for reconsideration within
which to file a notice of appeal of the judgment or final order.499
When the motion for new trial is denied on the ground of fraud, accident, mistake of
fact or law, or excusable negligence, the aggrieved party can no longer avail of the remedy of
petition for relief from judgment.500
If a new trial be granted, the original judgment shall be vacated or set aside, and the
action shall stand for trial de novo; but the recorded evidence taken upon the former trial501
shall be used at the new trial without retaking the same.502
If the court grants the motion,503 it may amend such judgment or final order
accordingly.504
The movant has a fresh period of fifteen (15) days from receipt or notice of the
order denying or dismissing the motion for reconsideration within which to file a notice to
appeal. This new period becomes significant if either a motion for reconsideration or a
motion for new trial has been filed but was denied or dismissed.
499
Meaning, the defendant is given a fresh period of 15 days counted from the receipt of the order
dismissingthemotionfornewtrialorreconsideration.
500
Franciscovs.Puno,108SCRA427
501
sofarasthesameismaterialandcompetenttoestablishtheissues
502
Sec.6
Thefilingofthemotionfornewtrialorreconsiderationinterruptstheperiodtoappeal(Sec.2,Rule40;
Sec.3,Rule41)
503
e.g.,itfindsthatexcessivedamageshavebeenawardedorthatthejudgmentorfinalorderiscontrary
totheevidenceorlaw
504
Sec.3
Theamendedjudgmentisinthenatureofanewjudgmentwhichsupersedestheoriginaljudgment.Itis
notameresupplementaldecisionwhichdoesnotsupplanttheoriginalbutonlyservestoaddsomething
toit.(Esquivelvs.Alegre,172SCRA315)
If the court finds that a motion affects the issues of the case as to only a part, or less than all of the
matters in controversy, or only one, or less that all of the parties to it, the order may grant a
reconsiderationastosuchissuesifseverablewithoutinterferingwiththejudgmentorfinalorderupon
therest(Sec.7)
505
Sec.5
ThisissobecauseasecondmotionforreconsiderationisexpresslyprohibitedundertheInterimRules.
Anorderdenyingamotionforreconsiderationornewtrialisnotappealable,theremedybeinganappeal
fromthejudgmentorfinalorderunderRule38.Theremedyfromanorderdenyingamotionfornewtrial
isnottoappealfromtheorderofdenial.Again,theorderisnotappealable.Theremedyistoappealfrom
thejudgmentorfinalorderitselfsubjectofthemotionfornewtrial(Sec.9,Rule37).
107
This fresh period rule applies not only to Rule 41 governing appeals from the RTC
but also to Rule 40 governing appeals from MTC to RTC, Rule 42 on petitions for review
from the RTC to the CA, Rule 43 on appeal from quasi-judicial agencies to the CA, and Rule
45 governing appeals by certiorari to the SC. Accordingly, this rule was adopted to
standardize the appeal periods provided in the Rules to afford fair opportunity to review the
case and, in the process, minimize errors of judgment.
Obviously, the new 15 day period may be availed of only if either motion is filed;
otherwise, the decision becomes final and executory after the lapse of the original appeal
period provided in Rule 41, as held in the case of Neypes vs. CA.506The Neypes ruling shall not
be applied where no motion for new trial or motion for reconsideration has been filed in
which case the 15-day period shall run from notice ofthe judgment.507
The SC ruled in one case that this fresh period of appeal is also applicable in
criminal cases.508
2. Appeals in General509
The general rule is that the remedy to obtain reversal or modification of judgment on
the merits is appeal. This is true even if the error ascribed to the court rendering the
judgment is its lack of jurisdiction over the subject matter, or the exercise of power in excess
thereof, or grave abuse of discretion in the findings of facts or of law set out in the
decision.510
The right to appeal is not part of due process but a mere statutory privilege that has
to be exercised only in the manner and in accordance with the provisions of law.511
506
G.R.141524,Sept.14,2005
507
Thefreshperiodruledoesnotrefertotheperiodwithinwhichtoappealfromtheorderdenyingthe
motionfornewtrialbecausetheorderisnotappealableunderSec.9,Rule37.Thenonappealabilityof
theorderofdenialisalsoconfirmedbySec.1(a),Rule41,whichprovidesthatnoappealmaybetaken
fromanorderdenyingamotionfornewtrialoramotionforreconsideration.
508
JudithYuvs.JudgeSamson,Feb.9,2011
509
Rules4045
510
AssociationofIntegratedSecurityForceofBisligALUvs.CA,GR140150,Aug.22,2005
511
StoltNielsenvs.NLRC,GR147623,Dec.13,2005
512
The appellate courts must decide the case on the basis of the record, except when the proceedings
werenotdulyrecordedaswhentherewasabsenceofaqualifiedstenographer(Sec.22[d],BP129;Rule
21[d],InterimRules)
513
Navalvs.CA,483SCRA102
108
(f) The liability of solidarity defendant who did not appeal is not affected by appeal
of solidarity debtor;516
(i) The appellate court cannot dismiss the appealed case for failure to prosecute
because the case must be decided on the basis of the record.519
a. Judgments and final orders subject to appeal
An appeal may be taken only from judgments or final orders that completely dispose
of the case.520
(a) An order denying a petition for relief or any similar motion seeking relief from
judgment;
(b) An interlocutory order;
(c) An order disallowing or dismissing an appeal;
(d) An order denying a motion to set aside a judgment by consent, confession or
compromise on the ground of fraud, mistake or duress, or any other ground vitiating
consent;
514
Ondapvs.Aubga,88SCRA610
515
Dayaovs.Shell,97SCRA407
516
Mun.ofOrionvs.Concha,50Phil.679
517
LuzonMetalvs.ManilaUnderwriter,29SCRA184
518
Agustinvs.Bataclan,135SCRA342
519
Rule21,InterimRules
520
Sec.1,Rule41
Aninterlocutoryorderisnotappealableuntilaftertherenditionofthejudgmentonthemerits.
521
ibid.,asamendedbyA.M.07712SC
109
The aggrieved party may file the appropriate special civil action under Rule 65,which
refers to the special civil actions of certiorari, prohibition and mandamus.522
d. Modes of appeal
Aquestionthatwasneverraisedinthecourtsbelowcannotbeallowedtoberaisedforthefirsttime
on appeal without offending basic rules of fair play, justice and due process. (Bank of Commerce vs.
Serrano,451SCRA484)
For an appellate court to consider a legal question, it should have been raised in the court below.
(PNOCvs.CA,457SCRA32)
Itwouldbeunfairtotheadversepartywhowouldhavenoopportunitytopresentevidenceincontra
tothenewtheory,whichitcouldhavedonehaditbeenawareofitatthetimeofthehearingbeforethe
trialcourt.Itistruethatthisruleadmitsofexceptionsasincasesoflackofjurisdiction,wherethelower
courtcommittedplainerror,wheretherearejurisprudentialdevelopmentsaffectingtheissues,orwhen
theissuesraisedpresentamatterofpublicpolicy(Baluyotvs.Poblete,G.R.144435,Feb.6,2007)
However,itisonlythegeneralrulebecauseSec.8,Rule51precludesitsabsoluteapplicationallowing
asitdoescertainerrorswhichevenifnotassignedmayberuleduponbytheappellatecourt.
Hence,thecourtmayconsideranerrornotraisedonappealprovidedthesamefallswithinanyofthe
followingcategories:
(a)Itisanerrorthataffectsthejurisdictionoverthesubjectmatter;
(b)Itisanerrorthataffectsthevalidityofthejudgmentappealedfrom;
(c)Itisanerrorwhichaffectstheproceedings;
(d)Itisanerrorcloselyrelatedtoordependentonanassignederrorandproperlyarguedinthebrief;
(e)Itisaplainandclericalerror.
522
Practically, it would be the special civil action of certiorari that would be availed of under most
circumstances.Themostpotentremedyagainstthosejudgmentsandordersfromwhichappealcannot
be taken is to allege and prove that the same were issued without jurisdiction, with grave abuse of
discretionorinexcessofjurisdiction,allamountingtolackofjurisdiction.
523
Sec.2
110
(2) Petition for review The appeal to the CA in cases decided by the
RTC in the exercise of its appellate
jurisdiction shall be by petition for review in
accordance with Rule 42.524
(3) Petition for review on certiorari In all cases where only questions of law are
raised or involved, the appeal shall be to the
SC by petition for review on certiorari in
accordance with Rule 45.525
Whether or not the appellant has filed a motion for new trial in the court below, he
may include in his assignment of errors any question of law or fact that has been raised in
the court below and which is within the issues framed by the parties.526
f. Period of appeal
(1) Ordinary Appeal under Rule 40527 Within 15 days after notice to the appellant
of the judgment or final order appealed
from.
524
SeeReference
525
AppealbyCertiorari
526
Sec.15
527
AppealfromMunicipalTrialCourtstotheRegionalTrialCourts
528
The period of appeal shall be interrupted by a timely motion for new trial or reconsideration. No
motionforextensionoftimetofileamotionfornewtrialorreconsiderationshallbeallowed(Sec.2).
111
(2) Ordinary Appealunder Rule 41529 Within 15 days from notice of the judgment
or final order appealed from.
(3) Petition for Review under Rule 42.530 Within 15 days from notice of the decision
sought to be reviewed or of the denial of
petitioners motion for new trial or
reconsideration filed in due time after
judgment.532
(4) Petition for Review under Rule 43.533 Within 15 days from notice of the award,
judgment, final order or resolution, or
from the date of its last publication534 or
of the denial of petitioners motion for new
trial or reconsideration duly filed in
accordance with the governing law of the
court or agency a quo.535
529
AppealfromtheRegionalTrialCourts
530
PetitionforreviewfromtheRegionalTrialCourtstotheCourtofAppeals
531
AMNo.01103SC,June19,2001
Theperiodofappealshallbeinterruptedbyatimelymotionfornewtrialorreconsideration.Nomotion
forextensionoftimetofileamotionfornewtrialorreconsiderationshallbeallowed(Sec.3).
IftherecordonappealisnottransmittedtotheCAwithin30daysaftertheperfectionofappeal,either
partymayfileamotionwiththetrialcourt,withnoticetotheother,forthetransmittalofsuchrecordor
recordonappeal(ibid.)
532
Thecourtmaygrantandadditionalperiodof15daysonlyprovidedtheextensionissought
(a)uponpropermotion,and
(b)thereispaymentofthefullamountofthedocketandotherlawfulfeesandthedepositforcosts
beforetheexpirationofthereglementaryperiod.
Nofurtherextensionshallbegrantedexceptforthemostcompellingreasonandinnocasetoexceed
15days(Sec.1).
533
AppealsfromtheCourtofTaxAppealsandQuasijudicialagenciestotheCourtofAppeals
534
ifpublicationisrequiredbylawforitseffectivity
535
Onlyone(1)motionforreconsiderationshallbeallowed.Uponpropermotionandthepaymentofthe
full amount of the docket fee before the expiration of the reglementary period, the CA may grant an
additionalperiodof15daysonlywithinwhichtofilethepetitionforreview.Nofurtherextensionshallbe
grantedexceptforthemostcompellingreasonandinnocasetoexceed15days(Sec.4).
112
(5) Petition for Review on Certiorari under Within 15 days from notice of the judgment,
Rule 45.536 final order or resolution appealed from, or
within 15 days from notice of the denial of
the petitioners motion for new trial or
motion for reconsideration filed in due
time.537
a) Notice of Within 15 days from receipt Within 15 days from receipt of order
Appeal540 of judgment or final order denying motion for reconsideration
or new trial
Within 30 days from receipt The 30-day to file the notice of appeal
b) Record on of judgment or final order and record on appeal should be
Appeal541 reckoned from the receipt of the
order denying the motion for new
trial or motion for reconsideration542
Petition for Review543 Within 15 days from receipt Within 15 days from receipt of the
of judgment order denying motion for
reconsideration or new trial.
Petition for Review544 Within 15 days from receipt Within 15 days from receipt of the
of judgment or final order order denying motion for
or of last publication reconsideration or new trial
536
AppealbycertioraritotheSupremeCourt
537
TheSupremeCourtmay,forjustifiablereasons,grantanextensionof30daysonlywithinwhichtofile
thepetitionprovided:
(a)thereisamotionforextensionoftimedulyfiledandserved,
(b)thereisfullpaymentofthedocketandotherlawfulfeesandthedepositforcosts,and
(c)themotionisfiledandservedandthepaymentismadebeforetheexpirationofthereglementary
period(Sec.2).
538
NeypesDoctrine
539
Rules40,41
540
Rule40
541
Rule41
542
Zaycovs.Himlo,GR170243,April16,2008
543
Rule42
544
Rule43
113
g. Perfection of appeal
For Ordinary Appeals from MTC to the Perfection of Appeal by Petition for Review
RTC546 and from the RTC to the CA.547 under Rule 42.548
(a) By notice of appeal - upon the filing of Upon the timely filing of a petition for
the notice of appeal in due time;549 review and the payment of the
corresponding docket and other lawful
(b) By record on appeal - upon the approval fees.552
of the record on appeal filed in due time;
545
Rule45
546
Rule40
547
Rule41
548
Sec.8
549
Inappeals by noticeofappeal,thecourtlosesjurisdiction only overthesubjectmatterthereof upon
theapproval of therecords on appealfiled in duetimeand theexpiration ofthe time toappealof the
otherparties.
550
(a) Execution of a judgment or final order pending appeal. On motion of the prevailing party will
notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in
possessionofeithertheoriginalrecordortherecordonappeal,asthecasemaybe,atthetimeofthe
filingofsuchmotion,saidcourtmay,initsdiscretion,orderexecutionofajudgmentorfinalordereven
beforetheexpirationoftheperiodtoappeal.
Afterthetrialcourthaslostjurisdiction,themotionforexecutionpendingappealmaybefiledinthe
appellatecourt.
Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing.
(b)Executionofseveral,separateorpartialjudgments.Aseveralseparateorpartialjudgmentmay
be executed under the same terms and conditions as execution of a judgment or final order pending
appeal.
551
Sec.9
114
May be taken to the RTC exercising jurisdiction over the area to which the former
pertains.553
The appeal is taken by filing a notice of appeal with the court that rendered the
judgment or final order appealed from.554
A record on appeal shall be required only in special proceedings and in other cases of
multiple or separate appeals.555
1) Ordinary Appeal from the judgment or final order of the RTC in the exercise of
its original jurisdiction.556
2) Petition for Review from the judgment or final order of the RTC to the CA in
cases decided by the RTC in the exercise of its appellate jurisdiction.557
Shall be taken to the SC where the petition shall raise only questions of law distinctly
set forth.560
552
TheRTClosesjurisdictionoverthecaseupontheperfectionoftheappealsfiledinduetimeandthe
expirationofthetimetoappealoftheotherparties.
However,beforetheCAgiveduecoursetothepetition,theRTCmayissueordersfortheprotectionand
preservationoftherightsofthepartieswhichdonotinvolveanymatterlitigatedbytheappeal,approve
compromises, permit appeals of indigent litigants, order execution pending appeal in accordance with
Sec.2,Rule39,andallowwithdrawaloftheappeal.
ExceptincivilcasesdecidedunderRulesonSummaryProcedure,theappealshallstaythejudgmentor
finalorderunlesstheCA,thelaw,ortheRulesprovideotherwise.
553
Thetitleofthecaseshallremainasitwasinthecourtoforigin,butthepartyappealingthecaseshall
befurtherreferredtoastheappellantandtheadversepartyastheappellee(Sec.1,Rule40).
WheretheMTCdismissesacaseforlackofjurisdictionandsuchdismissalisappealedtotheRTC,should
thelatteraffirmthedismissalandifithasjurisdictionoverthesubjectmatter,theRTCisobligedtotry
thecaseasifitwereoriginallyfiledwithit.
554
Thenoticeofappealshallindicatethepartiestotheappeal,thejudgmentorfinalorderorpartthereof
appealedfrom,andstatethematerialdatesshowingthetimelinessoftheappeal.
555
Sec.3
556
Rule41
557
Rule42
558
Rule45
559
ibid.
560
ThegeneralruleisthattheSCshallnotentertainquestionsoffact,exceptinthefollowingcases:
115
A party adversely affected by a decision or ruling of the CTA en banc may file with
the SC a verified petition for review on certiorari pursuant to Rule 45.561
May be brought to the SC on certiorari under Rule 45562 by filing the petition within
30 days from notice.563
But in cases in which it is alleged that the Ombudsman has acted with grave
abuse of discretion amounting to lack or excess of jurisdiction, a special civil action of
certiorari under Rule 65565 may be filed with the SC to set aside the Ombudsmans order
or resolution.
(a)TheconclusionoftheCAisgroundedentirelyonspeculations,surmisesandconjectures;
(b)Theinferencemadeismanifestlymistaken,absurdorimpossible;
(c)Thereisgraveabuseofdiscretion;
(d)Thejudgmentisbasedonmisapprehensionoffacts;
(e)Thefindingsoffactsareconflicting;
(f)TheCAinmakingitsfindingswentbeyondtheissuesofthecaseandthesameiscontrarytothe
admissionsofbothappellantandappellee;
(g)Thefindingsarecontrarytothoseofthetrialcourt;
(h) The facts set forth in the petition as well as in the petitioners main and reply briefs are not
disputedbytherespondents;
(i)ThefindingsoffactoftheCAarepremisedonthesupposedabsenceofevidenceandcontradicted
bytheevidenceonrecord;or
(j)ThosefiledunderWritsofamparo,habeasdata,orkalikasan
561
No civil proceeding involving matters arising under the NIRC, the TCC or the Local Government Code
shallbemaintained,exceptashereinprovided,untilandunlessanappealhasbeenpreviouslyfiledwith
theCTAanddisposedofinaccordancewiththeprovisionsoftheAct(Sec.11,R.A.9282)
562
supra
563
Sec.3,Rule64
564
The CA has jurisdiction over orders, directives and decisions of the Office of the Ombudsman in
administrativecasesonlyunderRule43.
565
supra
566
ibid.
116
The SCs power to review over resolutions and orders of the Office of the
Ombudsman isrestricted on to determining whether grave abuse of discretion has been
committed by it. The Court is not authorized to correct every error or mistake of the Office
of the Ombudsman other than grave abuse of discretion.567
Promptly move for the reconsideration of the decision and if denied, to timely file a
special civil action of certiorari under Rule 45568 within 60 days from notice of the decision.
Required to be brought to the CA under the requirements and conditions set forth in
Rule 43.570
May be taken to the CA whether the appeal involves a question of fact, a question of
law, or mixed questions of fact and law.571
An equitable remedy that is allowed only in exceptional cases when there is no other
available or adequate remedy.
A remedy where a party seeks to set aside a judgment rendered against him by a
court whenever he was unjustly deprived of a hearing or was prevented from taking an
appeal because of fraud, accident, mistake or excusable negligence.572
567
Villanuevavs.Ople,GR165125,Nov.18,2005
TheremedyisnotapetitionforreviewoncertiorariunderRule45.
568
supra
569
inobservanceofthedoctrineofhierarchyofcourts(St.MartinFuneralHomesvs.NLRC,G.R.130866,
Sept.16,1998)
ShouldthesamebefiledwiththeSC,thelattershalldismissthesameinsteadofreferringtheactionto
theCA.
570
SeeReference
This rule was adopted precisely to provide a uniform rule of appellate procedure from quasijudicial
bodies(Carpiovs.SuluResourceDevt.Corp.,387SCRA128)
571
TheappealshallbetakenbyfilingaverifiedpetitionforreviewwiththeCA.Theappealshallnotstay
theaward,judgment,finalorderorresolutionsoughttobereviewedunlesstheCAshalldirectotherwise
uponsuchtermsasitmaydeemjust.
572
Thecourtinwhichthepetitionisfiled,maygrantsuchpreliminaryinjunctiontopreservetherightsof
thepartiesuponthefilingofabondinfavoroftheadversepartyunderSec.5,Rule38.
117
(1) When a judgment or final order is entered, or any other proceeding is thereafter
taken against a party in any court through
(a) fraud,
(b) accident,
(c) mistake, or
(c) excusable negligence,
he may file a petition in such court and in the same case praying that the
judgment, order or proceeding be set aside.574
(2) When the petitioner has been prevented from taking an appeal by fraud, mistake,
or excusable negligence.575
1) within sixty (60) days after the petitioner learns of the judgment, final order, or
other proceeding to be set aside, and
2) not more than six (6) months after such judgment or final order was entered, or
such proceeding was taken.576
c. Contents of petition
The petition must be verified and must be accompanied with affidavits showing
fraud, accident, mistake or excusable negligence relied upon, and the facts constituting the
petitioners good and substantial cause of action or defense, as the case may be.577
A remedy independent of the case where the judgment sought to be annulled was
rendered and may be availed of though the judgment may have been executed.578
The bond is conditioned upon the payment to the adverse party of all damages and costs that may be
awardedtosuchadversepartybyreasonoftheissuanceoftheinjunction.(ibid.)
573
petitionforrelief
574
Sec.1
575
Sec.2
576
Sec.3
Thesetwoperiodsmustconcur.Bothperiodsarenotextendibleandareneverinterrupted.
577
id.
578
Itspurposeistohavethejudgmentsetasidesothattherewillbearenewaloflitigationwherethe
ordinary remedies of new trial, appeal, relief from judgment are no longer available without the
petitionersfault.
118
2) Lack of Jurisdiction refers to either lack of jurisdiction over the person of the
defendant or over the subject matter of the claim.
The court581 may order the trial court to try The questioned judgment, order or
the case as if a motion for new trial had been resolution shall be set aside and rendered
granted. null and void without prejudice to the
refiling of the original action in the proper
The prescriptive period shall not be court.
suspended if the extrinsic fraud is
attributable to the plaintiff in the original The prescriptive period to re-file shall be
action. deemed suspended from the filing of such
original action until the finality of the
judgment of annulment.
579
Extrinsicfraudshallnotbeavalidgroundifitwasavailedof,orcouldhavebeenavailedof,inamotion
fornewtrialorpetitionforrelief(Sec.2,Rule47).
580
Sec.3
581
uponmotion
582
aswhereitispatentthatthecourtwhich renderedsaidjudgmenthas nojurisdiction(Covs.CA,196
SCRA705)
119
Upon the expiration of the period to appeal and no appeal was perfected from a
judgment or order that disposes of the action or proceeding.587
Examples: A petition for certiorari under Rule 65 is a direct attack. It is filed primarily to have an order
annulled.Anactionforannulmentofajudgmentislikewiseadirectattackonajudgment.Amotionto
dismissacomplaintforcollectionofasumofmoneyfiledbyacorporationagainstthedefendantonthe
groundthattheplaintiffhasnolegalcapacitytouseisacollateralattackonthecorporation.Amotionto
dismissisincidentaltothemainactionforsumofmoney.Itisnotfiledasanactionintendedtoattackthe
legalexistenceoftheplaintiff(Covs.CA,196SCRA705).
583
Rule39
584
Thetermfinalwhenusedtodescribeajudgmentmaybeusedintwosenses.Inthefirst,itrefersto
a judgment that disposes of a case in a manner that leaves nothing more to be done by the court in
respect thereto. In this sense, a final judgment is distinguished from an interlocutory order which does
not finally terminate or dispose of the case (Rudecon Management Corp. vs. Singson, 4554 SCRA 612).
Sincethefinalityofajudgmenthastheeffectofendingthelitigation,anaggrievedpartymaythenappeal
fromthejudgment.UnderSec.1,Rule41,anappealmaybetakenfromajudgmentorfinalorderthat
completelydisposesofthecase.Underthesamerule,anappealcannotbetakenfromaninterlocutory
order.
Inanothersense,thewordfinalmayrefertoajudgmentthatisnolongerappealableandisalready
capableofbeingexecutedbecausetheperiodforappealhaselapsedwithoutapartyhavingperfectedan
appealoriftherehasbeenappeal,ithasalreadybeenresolvedbyahighestpossibletribunal(PCGGvs.
Sandiganbayan,455SCRA526).Inthissense,thejudgmentiscommonlyreferredtoasonethatisfinal
andexecutory.
585
asopposedtoaninterlocutoryorderwhichleavessomethingtobedoneinthetrialcourtwithrespect
tothemeritsofthecase.
586
Sec.1
587
Ibid.
Exceptinthefollowingcases:
(a)Wherejudgmentturnsouttobeincompleteorconditional;
(b)Judgmentisnovatedbytheparties;
(c)Equitablegrounds(i.e.,changeinthesituationofthepartiessuperveningfactdoctrine)
120
Once a judgment becomes final and executory, the prevailing party can have it
executed as a matter of right, and the issuance of a writ of execution becomes the ministerial
duty of the court.588
b. Discretionary execution590
(d)Executionisenjoined(i.e.,petitionforrelieffromjudgmentorannulmentofjudgmentwithTROor
writofpreliminaryinjunction)
(e)Judgmenthasbecomedormant;or
(f)Executionisunjustorimpossible.
588
Onceadecisionbecomesfinalandexecutory,itistheministerialdutyofthepresidingjudgetoissuea
writofexecutionexceptincertaincases,aswhensubsequenteventswouldrenderexecutionofjudgment
unjust(Mangahasvs.Paredes,GR157866,Feb.14,2007)
589
Thus, in a subsequent ruling the Court declared: Once a judgment becomes final, it is basic that the
prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial
courts ministerial duty, compellable by mandamus. (Greater Metropolitan Manila Solid Waste
ManagementCommitteevs.JancomEnvironmentalCorp.,G.R.2163663,Jan.30,2006)
Judgments and orders become final and executory by operation of law and not by judicial
declaration.Thetrialcourtneednotevenpronouncethefinalityoftheorderasthesamebecomes
finalbyoperationoflaw.Itsfinalitybecomesafactwhenthereglementaryperiodforappeallapses,and
no appeal is perfected within such period (Testate of Maria Manuel Vda. De Biascan, 374 SCRA 621;
VlasonEnterprisesvs.CA,310SCRA26).
590
Sec.2
Unlikejudgmentsthatarefinalandexecutory,ajudgmentsubjecttodiscretionaryexecutioncannotbe
insisteduponbutsimplyprayedandhopedforbecauseadiscretionaryexecutionisnotamatterofright.
Likeanexecutionpendingappeal,itmustbestrictlyconstrued.
Itisnotmeanttobeavailedofroutinelybecauseitappliesonlyinextraordinarycircumstances.Itshould
beinterpretedonlyinsofarasthelanguagethereoffairlywarrants,andalldoubtsshouldberesolvedin
favorofthegeneralrule(PlantersProducts,Inc.vs.CA,G.R.106052,Oct.22,1999).Wheretheexecution
isnotinconformitywiththerules,theexecutionisnullandvoid(BangkokBankvs.Lee,supra)
Requisites:
(a)Theremustbeamotionfiledbytheprevailingpartywithnoticetotheadverseparty;
(b)Theremustbeahearingofthemotionfordiscretionaryexecution;
(c)Theremustbegoodreasonstojustifythediscretionaryexecution;and
(d)Thegoodreasonsmustbestatedinaspecialorder.
591
UnderSec.1,Rule39,executionshallissueonlyasamatterofrightuponajudgmentorfinalorderthat
finallydisposesoftheactionorproceedingupontheexpirationoftheperiodtoappealtherefromifno
appealhasbeendulyperfected.
592
BangkokBankPublicCompanyLtd.vs.Lee,G.R.159806,Jan.29,2006
121
(1) By motion - within five (5) years from the date of its entry.
(2) By independent action after five (5) years from entry and before it is barred by
the statute of limitations.
The revived judgment may also be enforced by motion within five (5) years from the
date of its entry and thereafter by action before it is barred by the statute of limitations.596
(i) issue in the name of the Republic of the Philippines from the court which
granted the motion;
(ii) state the name of the court, the case number and title, the
dispositive part of the subject judgment or order; and
593
BlacksLawDictionary,9thEd.
Whenajudgmentisfinalandexecutory,executionisamatterofright,enforceablebymandamusifthe
courtdoesnotissuethewrit.
594
andsuchotherjudgmentsdeclaredtobeimmediatelyexecutory
595
Sec.4
Judgmentsthatmaybealteredormodifiedafterbecomingfinalandexecutory:
(a)Factsandcircumstancestranspirewhichrenderitsexecutionimpossibleorunjust;
(b)Support;
(c)Interlocutoryjudgment.
596
Sec.6
122
(e) In all cases, the writ of execution shall specifically state the
amount of the interest, costs, damages, rents, or profits due as of the date of
the issuance of the writ, aside from the principal obligation under the
judgment. For this purpose, the motion for execution shall specify the
amounts of the foregoing reliefs sought by the movants.597
a) Immediate payment on demand The officer enforcing the writ shall demand
from the judgment obligor the immediate
payment of the full amount stated in the
judgment including the lawful fees in cash,
certified check payable to the judgment
oblige or any other form of payment
acceptable to him.598
597
Sec.8
598
Ibid.
123
c) Garnishment of debts and credits The officer may levy on the debts due the
judgment obligor including bank deposits,
financial interests, royalties, commissions and
other personal property not capable of
manual delivery in the possession or control
of the third persons.599
Said act must be performed but if the party fails to comply within the specified time,
the court may direct the act to be done by someone at the cost of the disobedient party and
the act when so done shall have the effect as if done by the party.600
A certified copy of the judgment shall be attached to the writ of execution and shall
be served by the officer upon the party against whom the same is rendered, or upon any
other person required thereby, or by law, to obey the same, and such party or person may be
punished for contempt if he disobeys such judgment.601
599
Sec.9
600
Sec10[a]
Ifthejudgmentdirectsaconveyanceofrealorpersonalproperty,andsaidpropertyisinthePhilippines,
thecourtinlieuofdirectingtheconveyancethereof,may,byanorderdivestthetitleofanypartyand
vestitinothers,whichshallhavetheforceandeffectofaconveyanceexecutedindueformoflaw(ibid.)
601
Sec.11
124
Shall create a lien in favor of the judgment obligee over the right, title and interest of
the judgment obligor in such property at the time of the levy, subject to liens and
encumbrances then existing.602
(a) The judgment obligors family home, or the homestead in which heresides, and
the land necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him in his trade, employment,
or livelihood;
(c) Three horses, or three cows, or three carabaos, or other beasts of burden, such
as thejudgment obligor may select necessarily used by him in his ordinary occupation;
(d) His necessary clothing and articles for ordinary personal use, excluding jewelry;
(e) Household furniture and utensils necessary for housekeeping, and used for that
purpose by the judgment obligor and his family, such as the judgment obligor may select, of
a value not exceeding 100,000 pesos.
(f) Provisions for individual or family use sufficient for four (4) months;
(h) One fishing boat and accessories not exceeding the total value of 100,000 pesos
owned by a fisherman and by the lawful use of which he earns his livelihood;
(i) So much of the salaries, wages, or earnings of the judgment obligor for his
personal services with four (4) months preceding the levy as are necessary for the support of
his family;
(k) Monies, benefits, privileges, or annuities accruing or in any manner growing out
of any life insurance;
(l) The right to receive legal support, or money or property obtained as such
support, or any pension or gratuity from the government; and
602
Sec.12
603
Sec.13
125
The officer shall not be bound to keep the property, unless the judgment obligee, on
demand of the officer, files a bond approved by the court to indemnify the third-party
claimant in a sum not less than the value of the property levied on. In case of disagreement
as to such value, the same shall be determined by the court issuing the writ of execution. No
claim for damages for the taking or keeping of the property may be enforced against the
bond unless the action therefor is filed within one hundred twenty (120) days from the date
of the filing of the bond.
The officer shall not be liable for damages for the taking or keeping of the property,
to any third- party claimant if such bond is filed.604
Remedies available to a third person not a party to the action but whose property is
the subject of execution:
Ifthepropertymentionedisthesubjectofexecutionbecauseofajudgmentfortherecoveryoftheprice
or upon judgment of foreclosure of a mortgage upon the property, the property is not exempt from
execution.
604
Sec.16
Requisitesforaclaimbyathirdperson:
(a)Thepropertyislevied;
(b)Theclaimantisapersonotherthanthejudgmentobligororhisagent;
(c)Makesanaffidavitofhistitletheretoorrighttothepossessionthereofstatingthegroundsofsuch
rightortitle;and
(d)Servesthesameupontheofficermakingthelevyandthejudgmentobligee.
605
Sec.14,Rule57
126
6. Rules on Redemption
606
Chingvs.CA,423SCRA356
607
Sec.2,Rule19
608
SeeReference
127
Redemption Price
609
If the purchaser be also a creditor having a prior lien to that of the redemptioner, other than the
judgmentunderwhichsuchpurchasewasmade,theamountofsuchotherlien,withinterest.
128
2. 2% interest thereon
The judgment obligee shall be entitled to an order from the court611requiring such
judgment obligor to appear and be examined concerning his property and income before
such court or before a commissioner appointed by it, at a specified time and place; and
proceedings may thereupon be had for the application of the property and income of the
judgment obligor towards the satisfaction of the judgment.612
The court613may require such person, corporation, or other juridical entity, or any
officer or member thereof, to appear before the court or a commissioner appointed by it, at
a time and place within the province or city where such debtor resides or is found, and be
examined concerning the same. The service of the order shall bind all credits due the
judgment obligor and all money and property of the judgment obligor in the possession or in
control of such person, corporation, or juridical entity from the time of service; and the
610
Generally,injudicialforeclosuresale,thereisnorightofredemption,butonlyequityofredemption.
Insaleofestatepropertytopayoffdebtsoftheestate,thereisnoredemptionatall.Onlyinextrajudicial
foreclosuresaleandsaleonexecutionistheretherightofredemption.
Ifnoredemptionbemadewithinone(1)yearfromthedateoftheregistrationofthecertificateof
sale, the purchaser is entitled to a conveyance and possession of the property; or, if so redeemed
whenever sixty (60) days have elapsed and no other redemption has been made, and notice thereof
given,andthetimeforredemptionhasexpired,thelastredemptionerisentitledtotheconveyanceand
possession.
Upontheexpirationoftherightofredemption,thepurchaserorredemptionershallbesubstitutedto
andacquirealltherights,title,interestandclaimofthejudgmentobligortothepropertyasofthetimeof
thelevy.
Thepossessionofthepropertyshallbegiventothepurchaserorlastredemptionerbythesameofficer
unlessathirdpartyisactuallyholdingthepropertyadverselytothejudgmentobligor.
611
whichrenderedthesaidjudgment
612
Sec.36
But no judgment obligor shall be so required to appear before a court or commissioner outside the
provinceorcityinwhichsuchobligorresidesorisfound
613
byanorder
129
court may also require notice of such proceedings to be given to any party to the action in
such manner as it may deem proper.614
The judgment or final order is conclusive upon the title to the thing, the will or
administration, or the condition, status or relationship of the person; however, the probate
of a will or granting of letters of administration shall only be prima facie evidence of the truth
of the testator or intestate.
In other cases, the judgment or final order isconclusive between the parties and their
successors-in-interest by title subsequent to the commencement of the action or special
proceeding, litigating for the same thing and under the same title and in the same capacity.
In any other litigation between the same parties or their successors in interest, that
only is deemed to have been adjudged in a former judgment or final order which appears
upon its face to have been so adjudged, or which was actually and necessarily included
therein or necessary thereto.615
A foreign judgment on the mere strength of its promulgation is not yet conclusive, as
it can be annulled on the grounds of want of jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law or fact.
614
Sec.37
615
Sec.47
616
Republicvs.Gingoyon,GR166429,June27,2006
130
R. Provisional Remedies617
Temporary, auxiliary, and ancillary remedies available to a litigant for the protection
and preservation of his rights while the main action is pending.
They are writs and processes which are not main actions and they presuppose the
existence of a principal action.618
The court which grants or issues a provisional remedy is the court which has
jurisdiction over the main action. Even an inferior court may grant a provisional remedy in
an action pending with it and within its jurisdiction.
3. Preliminary Attachment619
A provisional remedy issued upon order of the court where an action is pending to
be levied upon the property of the defendant so the property may be held by the sheriff as
security for the satisfaction of whatever judgment may be rendered in the case.620
617
Rules5761
618
Provisionalremediesareresortedtobylitigantsforanyofthefollowingreasons:
(a)Topreserveorprotecttheirrightsorinterestswhilethemainactionispending;
(b)Tosecurethejudgment;
(c)Topreservethestatusquo;or
(d)Topreservethesubjectmatteroftheaction.
Provisionalremediesspecifiedundertherules:
(a)Preliminaryattachment;
(b)Preliminaryinjunction;
(c)Receivership;
(d)Replevin;and
(e)Supportpendentlite.
619
Rule57
At the commencement of the action or at any time before entry of judgment, a plaintiff or any proper
partymayhavethepropertyoftheadversepartyattachedassecurityforthesatisfactionofanyjudgment
thatmayberecovered.
620
DavaoLightandPower,Inc.vs.CA,204SCRA343
Whenavailedofandisgrantedinanactionpurelyinpersonam,itconvertstheactiontoonethatis
quasiinrem.
Inanactioninremorquasiinrem,jurisdictionovertheresissufficient.Jurisdictionoverthepersonof
thedefendantisnotrequired(Villarealvs.CA,295SCRA511)
Preliminaryattachmentisdesignedto:
(a) Seize the property of the debtor before final judgment and put the same in custodia legis even
whiletheactionispendingforthesatisfactionofalaterjudgment(InsularBankofAsiaandAmericavs.
CA,190SCRA629)
(b) To enable the court to acquire jurisdiction over the res or the property subject of the action in
caseswhereserviceinpersonoranyotherservicetoacquirejurisdictionoverthedefendantcannotbe
affected.
131
The grant of the remedy is addressed to the discretion of the court. In determining
the propriety of the grant, the court also considers the principal case upon which the
provisional remedy depends.
(1) In an action for the recovery of a specified amount of money or damages, other
than moral and exemplary, on a cause of action arising from law, contract, quasi-contract,
delict or quasi-delict against a party who is about to depart from the Philippines with intent to
defraud his creditors;
(4) In an action against a party who has been guilty of a fraud in contracting the debt
or incurring the obligation upon which the action is brought, or in the performance thereof;
(5) In an action against a party who has removed or disposed of his property, or is
about to do so, with intent to defraud his creditors; or
(6) In an action against a party who does not reside and is not found in the
Philippines, or on whom summons may be served by publication.621
Threetypes:
(a) Preliminary attachment one issued at the commencement of the action or at any time before
entryofjudgmentassecurityforthesatisfactionofanyjudgmentthatmayberecovered.Herethecourt
takescustodyofthepropertyofthepartyagainstwhomattachmentisdirected.
(b) Garnishment plaintiff seeks to subject either the property of defendant in the hands of a third
person(garnishee)tohisclaimorthemoneywhichsaidthirdpersonowesthedefendant.Garnishment
does not involve actual seizure of property which remains in the hands of the garnishee. It simply
impoundsthepropertyinthegarnisheespossessionandmaintainsthestatusquountilthemainactionis
finally decided. Garnishment proceedings are usually directed against personal property, tangible or
intangible.andwhethercapableofmanualdeliveryornot.
(c)Levyonexecutionwritissuedbythecourtafterjudgmentbywhichthepropertyofthejudgment
obligoristakenintocustodyofthecourtbeforethesaleofthepropertyonexecutionforthe
satisfactionofafinaljudgment.Itisthepreliminarysteptothesaleonexecutionofthepropertyofthe
judgmentdebtor.
621
Sec.1
132
b. Requisites
(1) The case must be any of those where preliminary attachment is proper;
(3) The applicant must show by affidavit623 that there is no sufficient security for the
claim sought to be enforced; that the amount claimed in the action is as much as the sum of
which the order is granted above all counterclaims; and
An order of attachment may be issued either ex parte or upon motion with notice and
hearing by the court in which the action is pending, or by the CA or the SC.
It may issue ex parte and even before the summons is served upon the defendant.
However, the writ may not be enforced and validly implemented unless preceded or
simultaneously served with the summons, a copy of the complaint, application for
attachment, the order of attachment and the attachment bond.
The order of attachment shall be granted only when it appears by the affidavit of the
applicant that the requisites for a grant of attachment are present.
The applicant must thereafter give a bond executed to the adverse party in the
amount fixed by the court in its order granting the issuance of the writ, conditioned that the
latter will pay all the costs which may be adjudged to the adverse party and all damages
which he may sustain by reason of the attachment, if the court shall finally adjudge that the
applicant was not entitled thereto.
622
exparteorwithnoticeandhearing
623
underoath
624
Thisiscalledanattachmentbond,whichanswersforalldamagesincurredbythepartyagainstwhom
theattachmentwasissuedandsustainedbyhimbyreasonoftheattachment.(Carlosvs.Sandoval,471
SCRA266)
625
Exceptionstotherequirement:
(a) Where the summons could not be served personally or by substituted service despite diligent
efforts;
(b)ThedefendantisaresidentofthePhilippineswhoistemporarilyoutofthecountry;
(c)Thedefendantisanonresident;or
133
The failure to acquire jurisdiction over the person of the adverse party shall render
the implementation of the writ void.
The sheriff enforcing the writ shall, without delay and with all reasonable diligence,
attach, to await judgment and execution in the action, only so much of the property in the
Philippines of the party against whom the writ is issued, not exempt from execution, as
may be sufficient to satisfy the applicant's demand.
Real property, or growing crops thereon or - a copy of the order shall be filed with the
any interest therein registry of deeds along with a description of
the property attached and by leaving a copy
of such order with the occupant of the
property, if any, or such other person or his
agent if found within the province
Personal property capable of manual delivery - by taking and safely keeping it in his
custody after issuing the corresponding
receipt therefor.
Debts and credits, including bank deposits, - by leaving with the person owing such
financial interest, royalties, commissions and debts, or in possession or control of such
other personal property not capable of credits or other personal property, or with
manual delivery his agent, a copy of the writ, and notice
that such properties are attached.
Interest of the party against whom - by giving a copy of the writ and notice to
attachment is issued in property belonging to the executor or administrator and the office
the estate of the decedent of the clerk of court where the estate is being
settled.
Property is in custodia legis - a copy of the writ shall be filed with the
(d)Theactionisoneinremorquasiinrem(Sec.5)
134
The third party may resort to any of the following remedies which are cumulative
and thus could be resorted independently and separately from the others:
a) He may avail of the remedy of terceria - by making an affidavit of his title thereto or
his right to possession thereof, stating the grounds of such right or title. The affidavit must
be served upon the sheriff and the attaching party. The sheriff shall not be bound to
keep the property under attachment except if the attaching party files a bond approved
by the court.
b) The third person may invoke the courts authority in the same case and move for
a summary hearing on his claim to decide if the sheriff has acted correctly or not.
c) The third party may file a separate action to nullify the levy with damages
resulting from the unlawful levy and seizure. This action may be totally distinct from the case
in which the attachment was issued.
If the attachment has already been enforced, the party whose property has been
attached may file a motion to discharge the attachment. This motion shall be with notice and
hearing. After due notice and hearing, the court shall discharge the attachment if the movant
makes a cash deposit or files a counter-bond executed to the attaching party with the
clerk of court where the application is made in an amount equal to that fixed by the court
in the order of attachment, exclusive of costs.626
Attachment may likewise be discharged without the need for filing of a counter-
bond. This ispossible when the party whose property has been attached files a motion
to set aside or discharge the attachment and during the hearing of the motion, he proves
that:
626
Sec.12
627
Sec.13
628
Sec.2
135
The sheriff may cause the judgment to be satisfied out of the property attached631in
the following manner:
(a) By paying to the judgment obligee the proceeds of all sales of perishable or other
property sold in pursuance of the order of the court, or so much as shall be necessary to
satisfy the judgment;
(b) If any balance remains due, by selling so much of the property, real or personal,
as may be necessary to satisfy the balance, if enough for that purpose remain in the sheriff's
hands, or in those of the clerk of the court;
(c) By collecting from all persons having in their possession credits belonging to the
judgment obligor, or owing debts to the latter at the time of the attachment of such credits
or debts, the amounts of such credits and debts as determined by the court in the action, and
stated in the judgment, and paying the proceeds of such collection over to the judgment
obligee.632
629
e.g.writofattachmentwasnotbasedonthegroundsinSec.1
630
e.g.writofattachmentwasexecutedwithoutpreviousorcontemporaneousserviceofsummons
631
ifitbesufficientforthatpurpose
632
Sec.15
Orderofsatisfactionofjudgmentofattachedproperty
(1)Perishableorotherpropertysoldinpursuanceoftheorderofthecourt;
(2)Property,realorpersonal,asmaybenecessarytosatisfythebalance;
(3)collectingfromdebtorsofthejudgmentobligor;
(4)ordinaryexecution.
136
4. Preliminary Injunction633
An order granted at any stage of an action or Issued to preserve the status quo636 until the
proceeding prior to the judgment or final hearing of the application for preliminary
order, requiring a party or a court, agency or injunction.
a person to either refrain634 from or to
perform635 a particular act or acts during the
pendency of the action.
633
Rule58
PreliminaryInjunction:
a)Hearingandpriornoticetothepartysoughttobeenjoined;
b)Ifapplicationisincludedininitiatorypleading:
1.Noticeofraffleshallbepreceded,orcontemporaneouslyaccompanied,byserviceofsummons,
togetherwithacopyofthecomplaintorinitiatorypleadingandtheapplicant'saffidavitandbond,upon
theadversepartyinthePhilippines.
2.Raffledonlyafternoticetoandinthepresenceoftheadversepartyorthepersontobeenjoined
c)Applicantpostsabond.
FinalInjunction:
Abondisrequiredonlyinpreliminaryinjunctions,butisnotrequiredinTROs.Afterthelapseofthe
20dayTRO,thecourtcanstillgrantapreliminaryinjunction.
IrreparableinjuryisalwaysarequisiteinTROs.Butinthe72hourTRO,graveinjusticemustalsobe
shown.Inthe20dayTRO,thegroundis greatorirreparableinjury.Withoutapreliminaryinjunction, a
TROissuedbytheCAexpireswithoutnecessityofcourtaction.
634
prohibitory
635
mandatory
636
The last, actual, peaceable and uncontested situation which precedes a controversy. The
injunction should not establish a new relation between the parties, but merely should maintain or re
establishthepreexistingrelationshipbetweenthem.
637
RTCandMTC
638
CA
ATROissuedbytheSupremeCourtshallbeeffectiveuntilfurtherorders.
ThejudgemayissueaTROwithalimitedlifeof20daysfromdateofissue.Ifbeforetheexpirationofthe
20day period, the application for preliminary injunction is denied, the TRO would be deemed
automatically vacated. If no action is taken by the judge within the 20day period, the TRO would
automaticallyexpireonthe20thdaybythesheerforceoflaw,nojudicialdeclarationtothateffectbeing
necessary(BacolodCityWaterDistrictvs.Labayen,446SCRA110)
137
preliminary injunction.
The court in which the application for May be granted ex parte if it shall appear from
preliminary injunction was made may issue a facts shown by affidavits or by the verified
TRO ex parte for a period not exceeding 20 application that great or irreparable injury
days from service to the party sought to be would result to the applicant before the
enjoined.639 matter can be heard on notice.
b. Requisites
2) The applicant must establish that he has a right of relief or a right to be protected
and that the act against which the injunction is sought violates such right,
3) The applicant must establish that there is a need to restrain the commission or
continuance of the acts complained of and if not enjoined would work injustice to the
applicant.640
c. Kinds of Injunction
639
1998Bar
640
Barbajovs.HiddenViewHomeowners,Inc.,450SCRA315
Theplaintiffmustfurtherestablishthatheorshehasapresent unmistakablerightto beprotected;
thatthefactsagainstwhichinjunctionisdirectedviolatesuchright;andthereisaspecialandparamount
necessity for the writ to prevent serious damages. In the absence of proof of legal right and the injury
sustained by the plaintiff, an order for the issuance of a writ of preliminary injunction will be nullified.
Thus, where the plaintiffs right is doubtful or disputed, a preliminary injunction is not proper. The
possibilityofirreparabledamagewithoutproofofanactualexistingrightisnotagroundforpreliminary
injunction(Sps.Niscevs.EquitablePCIBank,Feb.19,2007).
641
Here,thestatusquoispreservedorrestored.
138
(1) The applicant is entitled to the relief demanded, and the whole or part of such
relief consists in restraining the commission or continuance of the act or acts complained of,
or in requiring the performance of an act or acts either for a limited period or perpetually; or
642
Sec.10
643
Requisitesfortheissuanceofmandatorypreliminaryinjunction:
(a)Theinvasionoftherightismaterialandsubstantial;
(b)Therightofacomplainantisclearandunmistakable;
(c) There is an urgent and permanent necessity for the writ to prevent serious damage (Rivera vs.
Florendo,144SCRA643).
644
Sec.3
139
(3) Appears after hearing that irreparable damage to the party or person enjoined
will be caused while the applicant can be fully compensated for such damages as he may
suffer, and the party enjoined files a counter bond;
If a TRO is by the Court of Appeals- sixty (60) days from notice to service party to
be enjoined.
645
AM020207SC
Ifitisshownthattheapplicantwouldsuffergreatorirreparableinjurybeforetheapplication
forthewritofinjunctioncanbeheard,thecourtmayissueatemporaryrestrainingorder(TRP)exparte
whichshallbeeffectiveforaperiodnotexceedingtwenty(20)daysfromserviceonthepartysoughtto
beenjoined.Withinthesaidtwentydayperiod,thecourtmustordersaidpartytoshowcausewhy
the injunction should not be granted, determine within the same period whether or not the
preliminaryinjunctionshallbegranted,andaccordinglyissuethecorrespondingorder.
Ifthematterisofextremeurgencyandtheapplicantwillsuffergraveinjusticeandirreparable
injury,theexecutivejudgeofamultiplesalacourtorthepresidingjudgeofasinglesalacourtmayissue
ex parte a temporary restraining order effective for only seventytwo (72) . Within such period, the
judge shall conduct a summary hearing to determine whether the temporary restraining order shall be
extendedto20days.The72hoursshallbeincludedinthemaximum20dayperiod.
Twenty(20)dayTRO:
a) If it shall appear from the facts shown by affidavits or by the verified application that great or
irreparableinjurywouldresulttotheapplicantbeforethemattercanbeheardonnotice;
b)Ifapplicationisincludedininitiatorypleading:
1.Noticeofraffleshallbepreceded,orcontemporaneouslyaccompanied,byserviceofsummons,
togetherwithacopyofthecomplaintorinitiatorypleadingandtheapplicantsaffidavitandbond,
upontheadversepartyinthePhilippines;
2.Raffledonlyafternoticetoandinthepresenceoftheadversepartyorthepersontobeenjoined.
c)Issuedwithsummaryhearing(todeterminewhethertheapplicantwillsuffergreatorirreparable
injury) within 24 hours after sheriffs return of service and/or records are received by the branch
selectedbyraffle;
d)Within20dayperiod,thecourtmustordersaidpersontoshowcausewhytheinjunctionshould
not be granted, and determine whether or not the preliminary injunction shall be granted, and
accordinglyissuethecorrespondingorder;
e)Includingtheoriginal72hours,totaleffectivityofTROshall:
1.Notexceed20days,ifissuedbyanRTCorMTC;
2.Notexceed60days,ifissuedbytheCAoramemberthereof;
3.Untilfurtherorders,ifissuedbytheSC.
f) TRO is automatically vacated upon expiration of the period and without granting of
preliminaryinjunction;
g)Effectivityisnotextendiblewithoutneedofanyjudicialdeclarationtothateffect;
h)Nocourt shall have authority toextend or renewthesame on the same ground for whichit was
issued.
140
No court, except the SC, shall issue any or preliminary injunction or preliminary
mandatory injunction against the government or its subdivisions, officials or any
person or entity, whether public or private, acting under the government direction, to
restrain, prohibit or compel the following acts:
5) The undertaking or authorization of any other lawful activity necessary for such
contract or project.
646
ibid.
647
Exceptionstotheprohibition:
a)Incasesofextremeurgency;
b)Ifitinvolvesconstitutionalissue;
c)GraveinjusticeandirreparableinjurywillariseunlessaTROisissued.
141
5. Receivership649
It may be the principal action itself or a mere provisional remedy; it can be availed of
even after the judgment has become final and executory as it may be applied for to aid
execution or carry judgment into effect.
(1) The party applying for the appointment of a receiver has an interest in the
property or fund which is the subject of the action or proceeding, and that such property or
fund is in danger of being lost, or materially injured unless a receiver be appointed to
administer and preserve it;
(2) In an action by the mortgagee for the foreclosure of a mortgage that the
property is in danger of being wasted or dissipated or materially injured, and that its value is
probably insufficient to discharge the mortgage debt, or that the parties have so stipulated in
the contract of mortgage;
(3) After judgment, to preserve the property during the pendency of an appeal, or to
dispose of it according to the judgment, or to aid execution when the execution has been
returned unsatisfied or the judgment obligor refuses to apply his property in satisfaction of
the judgment, or otherwise to carry the judgment into effect;
(4) Whenever in other cases it appears that the appointment of a receiver is the most
convenient and feasible means of preserving, administering, or disposing of the property in
litigation.650
Under P.D. 1818 and R.A. 8735, injunction is not available to stop infrastructure projects of the
government including arrastre and stevedoring operations (Malayan Integrated Industries vs. CA, G.R.
101469,Sept.4,1992;PPAvs.vs.Pier8ArrastreandStevedoringServices,475SCRA426)
648
Sec.4
649
Rule59
650
Sec.1
142
b. Requisites
(2) Appointed by the court where the action is pending, or by the CA or by the SC,
or a member thereof;651
(3) Applicants bond conditioned on paying the adverse party all damages he may
sustain by the appointment of the receiver in case the appointment is without sufficient
cause;
The court shall require the applicant to file a bond652 executed to the party against
whom the application is presented to the effect that the applicant will pay such party all
damages he may sustain by reason of the appointment of such receiver in case the applicant
shall have procured such appointment without sufficient cause; and
The court may, in its discretion, at any time after the appointment, require an
additional bond as further security for such damages.653
(1) To bring and defend, in such capacity, actions in his own name;
(4) To collect debts due to himself as receiver or to the fund, property, estate,
person, or corporation of which he is the receiver;
(8) To divide the money and other property that shall remain among the persons
legally entitled to receive the same;
651
During the pendency of an appeal, the appellate court may allow an application for the
appointmentofareceivertobefiledinanddecidedbythecourtororiginandthereceiverappointedto
besubjecttothecontrolofsaidcourt.
652
inanamounttobefixedbythecourt
653
Sec.2
143
(9) To do such acts respecting the property as the court may authorize.654
To pay the damages the adverse party may To answer for receivers faithful discharge of
sustain by reason of appointment of receiver his duties.657
f. Termination of receivership
Whenever the court658shall determine that the necessity for a receiver no longer
exists, it shall659
(3) order the discharge of the receiver from further duty as such.660
(a) its continuance is not justified by the facts and circumstances of the case;661 or
(b) the court is convinced that the powers are abused.662
654
However,fundsinthehandsofareceivermaybeinvestedonlybyorderofthecourtuponthewritten
consentofallthepartiestotheaction.Noactionmaybefiledbyoragainstareceiverwithoutleaveof
thecourtwhichappointedhim(Sec.6)
655
forappointmentofreceiver
656
oftheappointedreceiver,asidefromoath
657
Sec.2
658
motupropriooronmotionofeitherparty
659
afterduenoticetoallinterestedpartiesandhearing
660
Sec.8
The court shall allow the receiver such reasonable compensation as the circumstances of the case
warrant,tobetaxedascostsagainstthedefeatedparty,orapportioned,asjusticerequires(ibid).
661
Samsonvs.Araneta,64Phil.549
662
Duquevs.CFI,Manila,13SCRA420
144
6. Replevin663
b. Requisites
(1) A party praying for the provisional remedy must file an application for a writ of
replevin. His application must be filed at the commencement of the action or at any time
before the defendant answers, and must contain an affidavit particularly describing the
property to which he entitled of possession.
(2) The affidavit must state that the property is wrongfully detained by the adverse
party, alleging therein the cause of the detention. It must also state that the property has not
been distrained or taken for tax assessment or a fine pursuant to law, or seized under a writ
of execution or preliminary attachment, or otherwise placed in custodia legis. If it has been
seized, then the affidavit must state that it is exempt from such seizure or custody.
(3) The affidavit must state the actual market value of the property; and
(4) The applicant must give a bond, executed to the adverse party and double the
value of the property.
663
Rule60
May be a main action or a provisional remedy. As a principal action, its ultimate goal is to recover
personalpropertycapableofmanualdeliverywrongfullydetainedbyaperson.Usedinthissense,itisa
suitinitself.
Itisaprovisional remedy in thenature of possessory actionand the applicantwho seeks immediate
possessionofthepropertyinvolvedneednotbetheholderofthelegaltitlethereto.Itissufficientthathe
isentitledtopossessionthereof(Yangvs.Valdez,177SCRA141)
664
BlacksLawDictionary,9thEd.
665
Ibid.
666
Apartyprayingfortherecoveryofpossessionofpersonalpropertymay,atthecommencementofthe
actionoratanytimebeforeanswer,applyforanorderforthedeliveryofsuchpropertytohim(Sec.1)
145
(a) That the applicant is the owner of property claimed, describing it or entitled to
its possession;
(b) That the property is wrongfully detained by the adverse party, alleging cause of
its detention;
(c) That the property has not been distrained or taken for tax assessment or fine or
under writ of execution/attachment or placed under custodia legis or if seized, that it is exempt
or should be released; and
The redelivery bond is posted to answer for the return of the property if adjudged
and pay for such sum as he may recover from the applicant,667which is required to be filed
within the period of five (5) days after the taking of the property. The rule is mandatory.668
The sheriff must serve a copy thereof on the adverse party, together with a copy of
the application, affidavit and bond, and must forthwith take the property, if it be in the
possession of the adverse party, or his agent, and retain it in his custody. If the property or
any part thereof be concealed in a building or enclosure, the sheriff must demand its
delivery, and if it be not delivered, he must cause the building or enclosure to be broken
open and take the property into his possession. After the sheriff has taken possession of the
property as herein provided, he must keep it in a secure place and shall be responsible for its
delivery to the party entitled thereto upon receiving his fees and necessary expenses for
taking and keeping the same.669
If within five (5) days after the taking of the property by the sheriff, the adverse party
does not object to the sufficiency of the bond, or of the surety or sureties thereon; or if the
adverse party so objects and the court affirms its approval of the applicant's bond or
approves a new bond, or if the adverse party requires the return of the property but his bond
is objected to and found insufficient and he does not forthwith file an approved bond, the
property shall be delivered to the applicant. If for any reason the property is not delivered to
the applicant, the sheriff must return it to the adverse party.670
667
Sec.2
668
Yangvs.Valdez,177SCRA141
669
Sec.4
670
Sec.6
A 3rd party claimant may vindicate his claim to the property, and the applicant may claim damages
against such 3rd party, in the same or separate action. A claim on the indemnity bond should be filed
within120daysfrompostingofsuchbond.
146
If the property taken is claimed by a third person and make an affidavit of his title
or right to the possession thereof and serves such affidavit upon the sheriff while the latter
has possession of the property and a copy thereof upon the applicant, the sheriff shall not be
bound to keep the property under replevin or deliver it to the applicant unless the applicant
on demand of said sheriff, shall file a bond approved by the court to indemnify the third-
party claimant in the sum not less than the value of the property.
The sheriff shall not be liable for damages, for the taking or keeping of such
property, to any such third-party claimant if such bond shall be filed.671
Basically ordinary civil proceedings; what makes them special are the distinct
peculiarities inherent in their very nature not found in ordinary civil actions.673
They are actions in themselves, but possessing special matters that required special
procedures. For this reason, these proceedings are classified as special civil actions.674
Must be based on a cause of action.676This These definitions do not fit the requirements
means that the defendant must have of a cause of action in certain special civil
performed an act or omitted to do an act in actions. It finds no application to the special
violation of the rights of another.677 civil action of declaratory relief and also in a
complaint for interpleader. In this action, the
plaintiff may file a complaint even if he has
sustained no actual transgression of his
rights. In fact, he actually has no interest in
the subject matter of the action.
671
Sec.7
672
Rules6271
673
InDe Fiestavs. Llorente,25 Phil.544, theSupreme Courtobservedthatpartition ofreal estate , quo
warranto,certiorari,prohibitionandmandamus,eminentdomain(expropriation)andforeclosureof
mortgageareactionsinthemselves,butpossessingspecialmattersthatrequiredspecialprocedures.For
thisreason,theseproceedingsareclassifiedasspecialcivilactions.
674
Sec. 1, Rule 62 provides that rules provided for ordinary civil actions are applicable in special civil
proceedings, which are not inconsistent with or may serve to supplement the provisions of the rules
relatingtosuchspecialcivilactions.
675
Although both types of actions are governed by the rules for ordinary civil actions, there are certain
rulesthatareapplicableonlytospecificspecialcivilactions(Sec.3[a],Rule1).Thefactthatanactionis
subject tospecialrules other than those applicable to ordinary civilactionsiswhatmakes a civilaction
special.
676
Sec.1,Rule2
677
Sec.2
147
May be filed initially in either the MTC or There are special civil actions which can only
the RTC depending upon the jurisdictional be filed in an MTC like the actions for
amount or the nature of the action involved. forcible entry and unlawful detainer. There
are also special civil actions which cannot be
commenced in the MTC, foremost of which
are the petitions for certiorari, prohibition,
and mandamus.
Venue is determined by either the residence This does not always apply to a special civil
of the parties where the action is personal or action.678
by the location of the property where the
action is real.
The subject matter of a petition for declaratory relief raises issues which are not
capable of pecuniary estimation and must be filed with the Regional Trial Court.679
4. Interpleader680
A special civil action filed by a person, who has property in his possession or an
obligation to render, wholly or partially, against whom two conflicting claims are made upon
the same subject matter and over which he claims no interest, to compel the claimants
to interplead and to litigate their conflicting claims among themselves.681
678
For instance, the venue in a petition for quo warranto is where the Supreme Court or the Court of
Appeals sits if the petition is commenced in any of these courts and without taking into consideration
where the parties reside. It is only when the petition is lodged with the RTC that the residence is
considered in venue analysis. Whilein ordinarycivil actions theresidences ofboththeplaintiffand the
defendant are factored in the determination, a petition for quo warranto filed in the RTC merely looks
into the residence of the respondent, not that of the petitioner. But if it is the Solicitor General who
commencestheaction,anotherspecialruleisfollowedbecausethepetitionmayonlybecommencedin
theRTCinManila,intheCourtofAppealsorintheSupremeCourt.
679
Sec.19[1],BP129;Sec.1,Rule63
680
Rule62
681
Sec.1
ItwouldbeerrortofilethepetitionwiththeSupremeCourtwhichhasnooriginaljurisdictiontoentertain
apetitionfordeclaratoryrelief(UntiedResidentsofDominicanHillvs.CommissionontheSettlementof
LandProblems,353SCRA782;Ortegavs.QuezonCityGovernment,469SCRA388)
148
(1) There must be two or more claimants with adverse or conflicting interests to a
property in the custody or possession of the plaintiff;
(2) The plaintiff in an action for interpleader has no claim upon the subject matter
of the adverse claims or if he has an interest at all, such interest is not disputed by the
claimants;
(3) The subject matter of the adverse claims must be one and the same; and
b. When to file
Whenever conflicting claims upon the same subject matter are or may be made
against a person who claims no interest whatever in the subject matter, or an interest which
in whole or in part is not disputed by the claimants, he may bring an action against the
conflicting claimants to compel them to interplead and litigate their several claims among
themselves.682
The petition for declaratory relief is filed before there occurs any breach or violation
of the deed, contract, statute, ordinance or executive order or regulation. It will not prosper
when brought after a contract or a statute has already been breached or violated. If there has
already been a breach, the appropriate ordinary civil action and not declaratory relief should
be filed.
682
Ibid.
683
Rule63
684
Meralcovs.PhilippineConsumersFoundation,374SCRA262
Thus,thepurposeistoseekforajudicialinterpretationofaninstrumentorforajudicialdeclarationofa
personsrightsunderastatuteandnottoaskforaffirmativereliefslikeinjunction,damagesoranyother
reliefbeyondthepurposeofthepetitionasdeclaredundertheRules.
Thesubjectmatterinapetitionfordeclaratoryreliefisanyofthefollowing:
(a)Deed;
(b)Will;
(c)Contractorotherwritteninstrument;
(d)Statute;
(e)Executiveorderorregulation;
(f)Ordinance;or
(g)Anyothergovernmentalregulation(Sec.1)
149
Any person interested under a deed, will, contract or other written instrument or
whose rights are affected by a statute, executive order or regulation, ordinance or other
governmental regulation may, before breach or violation thereof, bring an action in the RTC
to determine any question of construction or validity arising and for a declaration of his
rights or duties, thereunder.685
(1) The subject matter must be a deed, will, contract or other written instrument,
statute, executive order or regulation or ordinance;
(2) The terms of said document or the validity thereof are doubtful and require
judicial construction;
(4) There must be actual justiciable controversy or the ripening seeds of one;688 there
must be allegation of any threatened, imminent and inevitable violation of petitioners right
sought to be prevented by the declaratory relief sought;
(7) The party seeking the relief has legal interest in the controversy; and
685
Ibid.
Thosewhomaysueunderthecontractshouldbethosewithinterestunderthecontractliketheparties,
theassigneesandtheheirsasrequiredbysubstantivelaw(Art.1311,CivilCode)
686
Sec.1
687
Sec.2
688
thereisthreatenedlitigationintheimmediatefuture
689
e.g.administrativeremediesalreadyexhausted
690
Statedotherwise,therequisitesare:
(a)Theremustbeajusticiablecontroversy;
(b)Thecontroversymustbebetweenpersonswhoseinterestsareadverse;
(c)Thepartyseekingthereliefmusthavelegalinterestinthecontroversy;and
(d)Theissueisripeforjudicialdetermination(Republicvs.OrbecidoIII,472SCRA114)
150
(a) A decision would not terminate the uncertainty or controversy which gave rise to
the action; or
(b) The declaration or construction is not necessary and proper under the
circumstances.691
If before final termination of the case, a breach should take place, the action may be
converted into ordinary action to avoid multiplicity of suits.692
a. Reformation of an instrument694
The instrument may be reformed if it does not express the true intention of the
parties because of lack of skill of the person drafting the instrument.696
If the parties agree upon the mortgage or pledge of property, but the instrument
states that the property is sold absolutely or with a right of repurchase, reformation of the
instrument is proper.697
691
aswhentheinstrumentorthestatutehasalreadybeenbreached(Sec.5)
Indeclaratoryrelief,thecourtisgiventhediscretiontoactornottoactonthepetition.Itmaytherefore
choosenottoconstruetheinstrumentsoughttobeconstruedorcouldrefrainfromdeclaringtherights
of the petitioner under the deed or the law. A refusal of the court to declare rights or construe an
instrumentisactuallythefunctionalequivalentofthedismissalofthepetition.
On the other hand, the court does not have the discretion to refuse to act with respect to actions
described as similar remedies. Thus, in an action for reformation of an instrument, to quiet or to
consolidateownership,thecourtcannotrefusetorenderajudgment(ibid.)
692
Republicvs.Orbecidocase
Ordinary civil action plaintiff alleges that his right has been violated by the defendant; judgment
renderediscoerciveincharacter;awritofexecutionmaybeexecutedagainstthedefeatedparty.
Specialcivilactionofdeclaratoryreliefanimpendingviolationissufficienttofileadeclaratoryrelief;
noexecutionmaybeissued;thecourtmerelymakesadeclaration.
693
Art.1607,CivilCode
694
ProvisionsundertheCivilCode
695
Art.1359
696
Art.1363
151
Where the consent of a party to a contract has been procured by fraud, inequitable
conduct or accident, and an instrument was executed by the parties in accordance with the
contract, what is defective is the contract itself because of vitiation of consent.698
b. Consolidation of ownership699
The action brought to consolidate ownership is not for the purpose of consolidating
the ownership of the property in the person of the vendee or buyer but for the registration
of the property. The lapse of the redemption period without the seller a retro exercising his
right of redemption consolidates ownership or title upon the person of the vendee by
operation of law. Art. 1607 requires the filing of the petition to consolidate ownership
because the law precludes the registration of the consolidated title without judicial order.700
This action is brought to remove a cloud on title to real property or any interest
therein. The action contemplates a situation where the instrument or a record is apparently
valid or effective but is in truth and in fact invalid, ineffective, voidable or unenforceable,
and may be prejudicial to said title to real property. This action is then brought to remove a
cloud on title to real property or any interest therein. It may also be brought as a preventive
remedy to prevent a cloud from being cast upon title to real property or any interest
therein.701
697
Art.1365
698
Art.1359
Theremedyisnottobringanactionforreformationoftheinstrumentbuttofileanactionforannulment
ofthecontract.
Reformationoftheinstrumentcannotbebroughttoreformanyofthefollowing:
(a)Simpledonationintervivoswhereinnoconditionisimposed;
(b)Wills;or
(c)Whentheagreementisvoid(Art.1666)
699
TheconceptofconsolidationofownershipunderArt.1607,CivilCode,hasitsorigininthesubstantive
provisionsofthelawonsales.
Under the law, a contract of sale may be extinguished either by legal redemption or conventional
redemption(Art.1601).
Legalredemptionisastatutorymandatedredemptionofapropertypreviouslysold.Forinstance,aco
ownerofapropertymayexercisetherightofredemptionincasethesharesofalltheothercoownersor
anyofthemaresoldtoathirdperson(Art.1620).Theownersofadjoininglandsshallhavetherightof
redemptionwhenapieceofrurallandwithasizeofone(1)hectareorlessisalienated(Art.1621)
Conventionalredemption(retractolegal)saleisonethatisnotmandatedbythestatutebutonewhich
takesplacebecauseofthestipulationofthepartiestothesale.Theperiodofredemptionmaybefixedby
thepartiesin whichcasetheperiodcannotexceedten (10) yearsfromthedateof thecontract.Inthe
absenceofanyagreement,theredemptionperiodshallbefour(4)yearsfromthedateofthecontract.
Whentheredemptionisnotmadewithintheperiodagreedupon,incasethesubjectmatterofthesaleis
a real property, Art. 1607 provides that the consolidation of ownership in the vendee shall not be
recordedintheRegistryofPropertywithoutajudicialorder,afterthevendorhasbeendulyheard.
700
Cruzvs.Leis,327SCRA570
701
Art.476
152
The plaintiff need not be in possession of the real property before he may bring the
action as long as he can show that he has a legal or an equitable title to the property which is
the subject matter of the action.702
May be brought by the aggrieved party to the Supreme Court on certiorari under Rule
65.703
The petition shall be filed within thirty (30) days from notice of the judgment or final
order or resolution sought to be reviewed. The filing of a motion for new trial or
reconsideration of said judgment or final order or resolution shall interrupt the period herein
fixed. If the motion is denied, the aggrieved party may file the petition within the remaining
period, but which shall not be less than five (5) days704 in any event, reckoned from notice of
denial.705
Special civil actions of certiorari, prohibition, and mandamus from Comelec and COA
should be filed within 30 days, and does not stay the decision appealed.706
Sec. 7, Art. IX-A of the Constitution reads unless otherwise provided by the
Constitution or by law, any decision, order or ruling of each commission may be brought to
the Supreme Court on certiorari by the aggrieved party within 30 days from receipt of a copy
thereof.The provision was interpreted by the Supreme Court to refer to certiorari under Rule
702
Art.477
703
Sec.2
The filing of a petition for certiorari shall not stay the execution of the judgment or final order or
resolutionsoughttobereviewed,unlesstheSCdirectsotherwiseuponsuchtermsasitmaydeemjust
(Sec.8)Topreventtheexecutionofthejudgment,thepetitionershouldobtainatemporaryrestraining
order or a writ of preliminary injunction because the mere filing of a petition does not interrupt the
courseoftheprincipalcase.
704
Thenotlessthan5daysprovisionforfilingapleadingappliesonlyto:
(a)filingananswerafteradenialofaMtD;
(b)filingananswerafterdenialorserviceofabillofparticulars;
(c)filingaspecialcivilactionforcertiorarifromadecisionoftheComelecorCoAafterdenialofaMfR
orMNT.ItdoesnotapplytofilingappealfromdecisionsofotherentitiesafterdenialofaMfRorMNT.In
suchcases,eitherthepartieshaveafresh15days,orthebalance.
705
Sec.3
706
Bottomline: Decisions of quasijudicial bodies are not stayed by appeal alone. Decisions of regular
courtsarestayedonappeal.AlthoughinpetitionforreviewoncertioraritotheSCviaRule45,thereisno
expressprovisiononeffectofappealonexecution.
153
65 and not appeal by certiorari under Rule 45.707 To implement the above constitutional
provision, the SC promulgated Rule 64.
Rule 64 Rule 65
Directed only to the judgments, final orders Directed to any tribunal, board or officers
or resolutions of the COMELEC and COA; exercising judicial or quasi-judicial functions;
Filed within 30 days from notice of the Filed within 60 days from notice of the
judgment; judgment;
The filing of a motion for reconsideration or The period within which to file the petition
a motion for new trial if allowed, interrupts if the motion for reconsideration or new trial
the period for the filing of the petition for is denied is 60 days from notice of the denial
certiorari. If the motion is denied, the of the motion.
aggrieved party may file the petition within
the remaining period, but which shall not be
less than 5 days reckoned from the notice of
denial.
Filing of petition for certiorari does not interrupt the course of the principal action
nor the running of the reglementary periods involved in the proceeding, unless an
application for a restraining order or a writ of preliminary injunction to the appellate court is
707
Aratucvs.COMELEC,88SCRA251;Dariovs.Mison,176SCRA84
708
Rule65
709
NewFrontierSugarCorp.vs.RTCofIloilo,GR165001,Jan.31,2007
Wheretheerrorisnotoneofjurisdiction,butoflaworfactwhichisamistakeofjudgment,theproper
remedy should be appeal. Hence, if there was no question of jurisdiction involved in the decision and
whatwasbeingquestionedwasmerelythefindingsinthedecisionofwhetherornotthepracticeofthe
other party constitutes a violation of the agreement, the matter is a proper subject of appeal, not
certiorari(CentroEscolarUniversityFacultyandAlliedWorkersUnionvs.CA,GR165486,May31,2006).
154
granted.710 Neither does it interrupt the reglementary period for the filing of an answer nor
the course of the case where there is no writ of injunction.711
Certiorari is not and cannot be made a substitute for an appeal where the latter
remedy isavailable but was lost through fault or negligence. The remedy to obtain a reversal
of judgment on the merits is appeal. This holds true even if the error ascribed to the lower
court is its lack of jurisdiction over the subject matter, or the exercise of power in excess
thereof, or grave abuse of discretion. The existence and availability of the right to appeal
prohibits the resort to certiorari because one of the requirements for certiorari is that there is
no appeal.713
710
Sec.7
711
Peoplevs.Almendras,401SCRA555
712
Sec.19,RRSP
713
Bugarinvs.Palisoc,GR157985,Dec.5,2005
Exceptions to the rule that certiorari is not available when the period for appeal has lapsed and
certiorarimaystillbeinvokedwhenappealislostarethefollowing:
(a)Appealwaslostwithouttheappellantsnegligence;
(b)Whenpublicwelfareandtheadvancementofpublicpolicydictates;
(c)Whenthebroaderinterestofjusticesorequires;
(d)Whenthewritsissuedarenullandvoid;and
(e)Whenthequestionedorderamountstoanoppressiveexerciseofjudicialauthority(Chuavs.CA,
344SCRA136)
714
Sec.1
715
Sec.2
155
Person or entity must have Person or entity must have Person must have neglected
acted without or in excess of acted without or in excess of a ministerial duty or excluded
jurisdiction, or with grave jurisdiction, or with grave another from a right or
abuse of discretion abuse of discretion office
Prohibition Injunction
Always the main action May be the main action or just a provisional
remedy
Ground must be the court acted without or Does not involve a question of jurisdiction
in excess of jurisdiction
Prohibition Mandamus
To prevent an act by a respondent To compel an act desired
May be directed against entities exercising May be directed against judicial and non-
judicial or quasi-judicial, or ministerial judicial entities
functions
716
Sec.3
156
Clarifies legal duties, not legal titles Clarifies who has legal title to the office, or
franchise
b. Requisites
Thepetition is directed The petition is directed The plaintiff has a clear legal
against a tribunal, board or against a tribunal, right to the act demanded;
officer exercising judicial or corporation, board or person
quasi-judicial functions exercising judicial, quasi-
judicial, or ministerial
functions;
The tribunal, board or The tribunal, corporation, It must be the duty of the
officer has acted without, or board or person must have defendant to perform the
in excess of jurisdiction or acted without or in excess of act, which is ministerial and
with abuse of discretion jurisdiction or with grave not discretionary, because
amounting to lack or excess abuse of discretion the same is mandated by law;
or jurisdiction amounting to lack of
jurisdiction.
157
When any tribunal, board or When the proceedings of any When any tribunal,
officer exercising judicial or tribunal, corporation, board, corporation, board, officer
quasi-judicial functions has officer or person, whether or person unlawfully neglects
acted without or in excess of exercising judicial, quasi- the performance of an act
its or his jurisdiction, or with judicial or ministerial which the law specifically
grave abuse of discretion functions, are without or in enjoins as a duty resulting
amounting to lack or excess excess of its or his from an office, trust, or
of jurisdiction, and there is jurisdiction, or with grave station, or unlawfully
no appeal, or any plain, abuse of discretion excludes another from the
speedy, and adequate remedy amounting to lack or excess use and enjoyment of a right
in the ordinary course of law, of jurisdiction, and there is or office to which such other
a person aggrieved thereby no appeal or any other plain, is entitled, and there is no
may file a verified petition in speedy, and adequate remedy other plain, speedy and
the proper court, alleging the in the ordinary course of law, adequate remedy in the
facts with certainty and a person aggrieved thereby ordinary course of law, the
praying that judgment be may file a verified petition in person aggrieved thereby
rendered annulling or the proper court, alleging the may file a verified petition in
modifying the proceedings of facts with certainty and the proper court, alleging the
such tribunal, board or praying that judgment be facts with certainty and
officer, rendered commanding the praying that judgment be
and granting such incidental respondent to desist from rendered commanding the
reliefs as law and justice may further proceedings in the respondent, immediately or
require.The petition shall be action or matter specified at some other time to be
accompanied by a certified therein, or otherwise specified by the court, to do
true copy of the judgment, granting such incidental the act required to be done
order or resolution subject reliefs as law and justice may to protect the rights of the
thereof, copies of all require.The petition shall petitioner, and to pay the
pleadings and documents likewise be accompanied by a damages sustained by the
relevant and pertinent certified true copy of the petitioner by reason of the
thereto, and a sworn judgment, order or wrongful acts of the
certification of non-forum resolution subject thereof, respondent.The petition shall
shopping as provided in the copies of all pleadings and also contain a sworn
third paragraph of section 3, documents relevant and certification of non- forum
Rule 46.717 pertinent thereto, and a shopping as provided in
sworn certification of non- the third paragraph of
forum shopping as provided section 3, Rule 46.719
in the third paragraph of
section 3, Rule 46.718
717
Sec.1,
718
Sec.2
719
Sec.3
158
d. Injunctive relief
The court in which the petition is filed may issue orders expediting the proceedings,
and it may also grant a temporary restraining order or a writ of preliminary injunction for the
preservation of the rights of the parties pending such proceedings. The petition shall not
interrupt the course of the principal case unless a temporary restraining order or a writ of
preliminary injunction has been issued against the public respondent from further
proceeding in the case.720
The public respondent shall proceed with the principal case within ten (10) days
from the filing of a petition for certiorariwith a higher court or tribunal, absent a Temporary
Restraining Order (TRO) or a Writ of Preliminary Injunction, or upon its expiration. Failure
of the public respondent to proceed with the principal case may be a ground for an
administrative charge.721
Called petition for review on certiorari, is a A special civil action that is an original action
mode of appeal, which is but a continuation and not a mode of appeal, and not a part of
of the appellate process over the original the appellate process but an independent
case; action.
720
Sec.7
721
AM07712SC,Dec.12,2007
722
Rule45
723
Rule65
159
Filed within 15 days from notice of judgment Filed not later than 60 days from notice of
or final order appealed from, or of the denial judgment, order or resolution sought to be
of petitioners motion for reconsideration or assailed and in case a motion for
new trial; reconsideration or new trial is timely filed,
whether such motion is required or not, the
60 day period is counted from notice of
denial of said motion;
Does not require a prior motion for Motion for Reconsideration is a condition
reconsideration; precedent, subject to exceptions
Stays the judgment appealed from; Does not stay the judgment or order subject
of the petition unless enjoined or restrained;
Parties are the original parties with the The tribunal, board, officer exercising judicial
appealing party as the petitioner and the or quasi-judicial functions is impleaded as
adverse party as the respondent without respondent
impleading the lower court or its judge;
Filed only with the Supreme Court May be filed with the Supreme Court, Court
of Appeals, Sandiganbayan, or Regional Trial
Court
The remedies of appeal and certiorari are mutually exclusive and not alternative or
successive. The antithetic character of appeal and certiorari has been generally recognized and
observed save only on those rare instances when appeal is satisfactorily shown to be an
inadequate remedy. Thus, a petitioner must show valid reasons why the issues raised in his
petition for certiorari could not have been raised on appeal.724
724
BancoFilipinoSavingsandMortgageBankvs.CA,334SCRA305
160
Prohibition and Mandamus distinguished from Injunction; when and where to file petition725
725
Rule65
726
Sec.2
727
Sec.3
161
Always the main action Always the main action May be the main action or
just a provisional remedy
(9)Where the proceeding was ex parte or in which the petitioner had no opportunity
to object;
(10)When petitioner is deprived of due process and there is extreme urgency for
urgent relief; and
728
aswherethecourtaquohasnojurisdictionortherewasnodueprocess;
729
e.g.thecourtalreadyindicateditwoulddenyanyMotionforReconsideration;
162
The court, in its judgment may also award damages and the execution of the award
for damages or costs shall follow the procedure in Sec. 1,731 Rule 39.732
Under Rule 65,733 the proper party who can file a petition for certiorari, prohibition or
mandamus is the person aggrieved by the action of a trial court or tribunal in a criminal case
pending before it. Ordinarily, the petition is filed in the name of the People of the
Philippines by the Solicitor General. However, there are cases when such petition may be
filed by other parties who have been aggrieved by the order or ruling of the trial courts.
In the prosecution of election cases, the aggrieved party is the Comelec, who may file
the petition in its name through its legal officer or through the Solicitor General if he agrees
with the action of the Comelec.734
730
Sec.1
731
Executionuponjudgmentsorfinalorders.
Executionshallissueasamatterofright,onmotion,uponajudgmentororderthatdisposesofthe
action or proceeding upon the expiration ofthe period toappealtherefrom if no appeal has been duly
perfected.
Iftheappealhasbeendulyperfectedandfinallyresolved,theexecutionmayforthwithbeappliedfor
inthecourtoforigin,onmotionofthejudgmentobligee,submittingtherewithcertifiedtruecopiesofthe
judgment or judgments or final order or orders sought to be enforced and of the entry thereof, with
noticetotheadverseparty.
Theappellatecourtmay, onmotioninthesamecase,whentheinterestofjusticesorequires,direct
thecourtoforigintoissuethewritofexecution.
732
Sec.9
733
Sec.1
734
Comelecvs.Silva,Jr.,286SCRA177[1998]
163
The Court may impose motu proprio, based on res ipsa loquitur, other disciplinary
sanctions or measures on erring lawyers for patently dilatory and unmeritorious petition for
certiorari.737
The court may dismiss the petition if it finds the same patently without merit or
prosecuted manifestly for delay, or if the questions raised therein are too unsubstantial to
require consideration. In such event, the court may award in favor of the respondent treble
costs solidarily against the petitioner and counsel, in addition to subjecting counsel to
administrative sanctions under Rules 139 and 139-B.738
8. Quo Warranto739
735
AsamendedbyA.M.No.07712SC,Dec.12,2007
Apetitionforcertiorarimustbebasedonjurisdictionalgroundsbecauseaslongastherespondent
actedwithjurisdiction,anyerrorcommittedbyhimoritintheexercisethereofwillamounttonothing
morethananerrorofjudgmentwhichmaybereviewedorcorrectedbyappeal(MicrosoftCorp.vs.Best
DealComputerCenterCorp.,G.R.148029,Sept.24,2002;Estreravs.CA,G.R.154235,Aug.16,2006)
736
supra
737
Sec.8,asamendedbyA.M.07712SC,Dec.12,2007
738
Ibid.
739
Rule66
164
A demand made by the state upon some individual or corporation to show by what
right they exercise some franchise or privilege appertaining to the state which, according to
the Constitution and laws, they cannot legally exercise by virtue of a grant and authority
from the State.740
(b) a public officer who performs an act constituting forfeiture of a public office; or
(c) an association which acts as a corporation within the Philippines without being
legally incorporated or without lawful authority to do so.741
The issue is the legality of the occupancy of Grounds relied upon are: (a) ineligibility to
the office by virtue of a legal appointment; the position; or (b) disloyalty to the Republic.
Petition is brought either to the Supreme May be instituted with the COMELEC by
Court, the Court of Appeals or the Regional any voter contesting the election or any
Trial Court; member of Congress, regional, provincial or
city officer; or to the MeTC, MTC or MCTC
if against any barangay official;
Filed within one (1) year from the time the Filed within ten (10) days after the
cause of ouster, or the right of the petitioner proclamation of the results of the election;
to hold the office or position arose;
Petitioner is the person entitled to the office Petitioner may be any voter even if he is
not entitled to the office;
740
44Am.Jur.8889
741
Sec.1
742
underRule66
743
underElectionCode
165
The court has to declare who the person When the tribunal declares the candidate-
entitled to the office is if he is the petitioner. elect as ineligible, he will be unseated but the
person occupying the second place will not
be declared as the one duly elected because
the law shall consider only the person who,
having duly filed his certificate of candidacy,
received a plurality of votes.
By a verified petition brought in the name of the Government of the Republic of the
Philippines by the Solicitor General, or in some instances, by a public prosecutor.744
When the action is commenced by the Solicitor General, the petition may be brought
in the Regional Trial Court of the City of Manila, the Court of Appeals or the Supreme
Court.745
(a) A person who usurps, intrudes into, or unlawfully holds or exercises a public
office, position or franchise;
(b) A public officer who does or suffers an act which, by the provision of law,
constitutes a ground for the forfeiture of his office;
Where he claims to be entitled to the public office or position alleged to have been
usurped or unlawfully held or exercised by another.747
He must show that he has a clear right to the office allegedly being held by
another.748
Accordingly, the private person may maintain the action without the intervention of
the Solicitor General and without need for any leave of court.749
744
Secs.2and3
745
Sec.7
746
Sec.1
747
Sec.5
748
Cuevasvs.Bacal,347SCRA338
166
He may sue for damages against the alleged usurper within one (1) year from the
entry of judgment establishing his right to the office in question.751
9. Expropriation752
An exercise of the States power of eminent domain wherein the government takes a
private property for public purpose upon payment of just compensation.
(1) State with certainty the right of the plaintiff to expropriation and the purpose
thereof;
(2) Describe the real or personal property sought to be expropriated; and
(3) Join as defendants all persons owning or claiming to own, or occupying, any part
of the property or interest therein showing as far as practicable the interest of each
defendant. If the plaintiff cannot with accuracy identify the real owners, averment to that
effect must be made in the complaint.753
749
Navarrovs.Gimenez,10Phil.226;Cuivs.Cui,60Phil.37
Itisnotenoughthathemerelyassertstherighttobeappointedtotheoffice.
750
Sec.9
751
Sec.11
752
Rule67
753
Sec.1
754
NationalPowerCorporationvs.Joson,206SCRA520
167
For the acquisition of right-of-way, site or location for any national government
infrastructure project through expropriation, upon the filing of the filing of the complaint,
and after due notice to the defendant, the implementing agency shall immediately pay the
owner of the property the amount equivalent to the sum of
(1) 100 percent of the value of the property based on the current relevant zonal
valuation of the BIR; and
(2) the value of the improvements and/or structures as determined under Sec. 7756 of
R.A. 8974.757
755
Sec.2
Except for the acquisition of rightofway, site or location for any national government
infrastructureprojectthroughexpropriation.
Suchdepositshallbeinmoney,unlessinlieuthereofthecourtauthorizesthedepositofacertificateof
deposit of a government bank of the Philippines payable on demand to the authorized government
depositary(ibid.)
756
Valuation of Improvements and/or Structures. The Department of Public Works and Highways and
other implementing agencies concerned, in coordination with the local government units concerned in
the acquisition of rightofway, site or location for any national government infrastructure project, are
herebymandatedtoadoptwithinsixty(60)daysuponapprovalofthisAct,thenecessaryimplementing
rulesandregulationsfortheequitablevaluationoftheimprovementsand/orstructuresonthelandtobe
expropriated.
757
Sec.4,R.A.8974
758
Defensesandobjectionsnotpleadedeitherinamotiontodismissorintheansweraredeemedwaived.
However,whenitappearsfromthepleadingsortheevidenceonrecordthatthecourthasnojurisdiction
over the subject matter, that there is another action pending between the same parties for the same
cause,orthattheactionisbarredbyapriorjudgmentorbystatuteoflimitations,thecourtshalldismiss
theclaim.
759
Sec.8,Rule15
168
If a defendant has no objection or defense to the action or the taking of his property,
he may file and serve a notice of appearance and a manifestation to that effect, specifically
designating or identifying the property in which he claims to be interested, within the time
stated in the summons. Thereafter, he shall be entitled to notice of all proceedings affecting
the same.
If a defendant has any objection to the filing of or the allegations in the complaint,
or any objection or defense to the taking of his property, he shall serve his answer within the
time stated in the summons. The answer shall specifically designate or identify the property
in which he claims to have an interest, state the nature and extent of the interest claimed,
and adduce all his objections and defenses to the taking of his property. No counterclaim,
cross-claim or third-party complaint shall be alleged or allowed in the answer or any
subsequent pleading.
A defendant waives all defenses and objections not so alleged but the court, in the
interest of justice, may permit amendments to the answer to be made not later than ten (10)
days from the filing thereof. However, at the trial of the issue of just compensation, whether
or not a defendant has previously appeared or answered, he may present evidence as to the
amount of the compensation to be paid for his property, and he may share in the
distribution of the award.760
f. Order of Expropriation
If the objections to and the defenses against the right of the plaintiff to expropriate
the property are overruled, or when no party appears to defend as required, the court may
issue an order of expropriation declaring that the plaintiff has a lawful right to take the
property sought to be expropriated, for the public use or purpose described in the
complaint, upon the payment of just compensation to be determined as of the date of the
taking of the property or the filing of the complaint, whichever came first.
A final order sustaining the right to expropriate the property may be appealed by any
party aggrieved thereby. Such appeal, however, shall not prevent the court from determining
the just compensation to be paid.
After the rendition of such an order, the plaintiff shall not be permitted to dismiss or
discontinue the proceeding except on such terms as the court deems just and equitable.761
The order of expropriation merely declares that the plaintiff has the lawful right to
expropriate the property but contains no ascertainment of the compensation to be paid to
the owner of the property.
So upon the rendition of the order of expropriation, the court shall appoint not
more than three (3) commissioners to ascertain the just compensation for the
760
Sec.3,Rule67
761
Sec.4
169
property.Objections to the appointment may be made within 10 days from service of the
order of appointment.762
Upon the rendition of the order of expropriation, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to ascertain and report
to the court the just compensation for the property sought to be taken. The order of
appointment shall designate the time and place of the first session of the hearing to be held
by the commissioners763 and specify the time within which their report shall be submitted to
the court.Copies of the order shall be served on the parties. Objections to the appointment
of any of the commissioners shall be filed with the court within ten (10) days from service,
and shall be resolved within thirty (30) days after all the commissioners shall have received
copies of the objections.764
The court may order the commissioners to report when any particular portion of the
real estate shall have been passed upon by them, and may render judgment upon such partial
report, and direct the commissioners to proceed with their work as to subsequent portions
of the property sought to be expropriated, and may from time to time so deal with such
property. The commissioners shall make a full and accurate report to the court of all their
proceedings, and such proceedings shall not be effectual until the court shall have accepted
their report and rendered judgment in accordance with their recommendations. Except as
otherwise expressly ordered by the court, such report shall be filed within sixty (60) days
from the date the commissioners were notified of their appointment, which time may be
extended in the discretion of the court. Upon the filing of such report, the clerk of the court
shall serve copies thereof on all interested parties, with notice that they are allowed ten (10)
days within which to file objections to the findings of the report, if they so desire.765
Upon the expiration of the period of ten (10) days referred to, or even before the
expiration of such period but after all the interested parties have filed their objections to the
report or their statement of agreement therewith, the court may, after hearing, accept the
report and render judgment in accordance therewith; or, for cause shown, it may recommit
the same to the commissioners for further report of facts; or it may set aside the report and
appoint new commissioners; or it may accept the report in part and reject it in part; and it
may make such order or render such judgment as shall secure to the plaintiff the property
762
Sec.5
Thecommissionersareentitledtofeeswhichshallbetaxedaspartofthecostsoftheproceedings,andall
costsshallbepaidbytheplaintiffexceptthosecostsofrivalclaimantslitigatingtheirclaims(Sec.12)
763
A hearing before the commissioners is indispensable to allow the parties to present evidence on the
issueofjustcompensation.Althoughthefindingsofthecommissionersmaybedisregardedandthetrial
court may substitute its own estimate of the value, the latter may do so only for valid reasons, that is,
wherethecommissionershaveappliedillegalprinciplestotheevidencesubmittedtothem,wherethey
have disregarded a clear preponderance of evidence, or where the amount allowed is either grossly
inadequateorexcessive.
764
Sec.5
765
Sec.7
170
essential to the exercise of his right of expropriation, and to the defendant just compensation
for the property so taken.766
To enter upon the property expropriated and to appropriate the same for the public
use or purpose defined in the judgment or to retain possession already previously made in
accordance with Sec. 2,767 Rule 67.768
Vest in the plaintiff the title to the real estate so described for such public use or
purpose.769
766
Sec.8
767
Entryofplaintiffupondepositingvaluewithauthorizedgovernmentdepositary.
Uponthefilingofthecomplaintoratanytimethereafterandafterduenoticetothedefendant,the
plaintiff shall have the right to take or enter upon the possession of the real property involved if he
depositswiththeauthorizedgovernmentdepositaryanamountequivalenttotheassessedvalueofthe
propertyforpurposesoftaxationtobeheldbysuchbanksubjecttotheordersofthecourt.Suchdeposit
shallbeinmoney,unlessinlieuthereofthecourtauthorizesthedepositofacertificateofdepositofa
government bank of the Republic of the Philippines payable on demand to the authorized government
depositary.
If personal property is involved, its value shall be provisionally ascertained and the amount to be
depositedshallbepromptlyfixedbythecourt.
Aftersuchdepositismadethecourtshallorderthesherifforotherproperofficertoforthwithplacethe
plaintiff in possession of the property involved and promptly submit a report thereof to the court with
serviceofcopiestotheparties.
768
Titletothepropertyexpropriatedpassesfromtheownertotheexpropriatoruponfullpaymentofjust
compensation(FederatedRealtyCorp.vs.CA,477SCRA707)
769
Sec.13,2ndpar
When real estateisexpropriated,a certified copy of such judgmentshallberecorded in theregistry of
deedsoftheplaceinwhichthepropertyissituated.
770
Apersonwhoreceivesaloanofmoneyoranyotherfungiblethingacquirestheownershipthereof,and
isboundtopaytothecreditoranequalamountofthesamekindandquality.
771
realproperty
772
Art.2124,CC
The Supreme Court ruled that mortgages given to secure future advancements are valid and legal
contracts(PrudentialBankvs.Alviar,464SCRA353)
Amortgagecontractmayhaveaprovisioninwhichthemortgageisasecurityforpast,presentandfuture
indebtedness. This clause known as a dragnet clause or blanket mortgage clause has its origins in
Americanjurisprudence.
171
(1) An ascertainment of the amount due to the plaintiff upon the mortgage debt or
obligation, including interest and other charges as approved by the court, as well as costs;
(3) An order that the amount found due be paid to the court or to the judgment
obligee within the period of not less than 90 days nor more than 120 days from the entry of
judgment; and
(4) An admonition that in default of such payment the property shall be sold at
public auction to satisfy the judgment.773
The judgment of the court on the above matters is considered a final adjudication of
the case and hence, is subject to challenge by the aggrieved party by appeal or by other post-
judgment remedies.
The confirmation of the sale shall divest the rights in the property of all parties to
the action and shall vest their rights in the purchaser, subject to such rights of redemption as
may be allowed by law.774
The title vests in the purchaser upon a valid confirmation of the sale and retroacts to
the date of sale.775
Shall be paid to the person foreclosing the mortgage,776 and when there shall be any
balance or residue after paying off the mortgage debt due, the same shall be paid to junior
encumbrancers in the order of their priority. If there be any further balance after paying
773
Sec.2
774
Sec.3
The import of this section includes one vital effect: The equity of redemption of the mortgagor or
redemptioneriscutoffandtherewillbenofurtherredemption,unlessallowedbylawasinthecaseof
banksasmortgagees.Theequityofredemptionstartsfromtheninetydayperiodsetinthejudgmentof
thecourtuptothetimebeforethesaleisconfirmedbyanorderofthecourt.Onceconfirmed,noequity
ofredemptionmayfurtherbeexercised.
Theorder ofconfirmation isappealable and if not appealedwithintheperiod for appeal, it becomes
final. Upon the finality of the order of confirmation or upon the expiration of the period of
redemptionwhenallowedbylaw,thepurchaserattheauctionsaleorlastredemptioner,ifany,shallbe
entitledtothepossessionofthepropertyandhemaysecureawritofpossession,upon,motion,fromthe
court which ordered the foreclosure unless a third party is actually holding the same adversely to the
judgmentobligor(ibid.)
775
Grimaltvs.Vasquez,36Phil.396
776
afterdeductingthecostsofthesale
172
them or if there be no junior encumbrancers, the same shall be paid to the mortgagor or any
person entitled thereto.777
d. Deficiency judgment
If there be a balance due to the plaintiff after applying the proceeds of the sale, the
court, upon motion, shall render judgment against the defendant for any such balance.
Execution may issue immediately if the balance is all due at the time of the execution of the
judgment; otherwise, the plaintiff shall be entitled to execution at such time as the remaining
balance becomes due which time shall be stated in the judgment.778
No independent action need be filed to recover the deficiency from the mortgagor.
The deficiency judgment shall be rendered upon motion of the mortgagee. The motion must
be made only after the sale and after it is known that a deficiency exists. Before that, any
court order to recover the deficiency is void.779
Where the debtor-mortgagor is a non-resident and who, at the time of the filing of
the action for foreclosure and during the pendency of the proceedings, was outside the
Philippines, it is believed that a deficiency judgment would not be procedurally feasible.
Having been outside the country, jurisdiction over his person could not have been acquired.
777
Sec.4
778
Sec.6
Thedeficiencyjudgmentisinitselfajudgmenthence,alsoappealable.
779
Govt.ofPIvs.Torralba,61Phil.689
173
Mortgagee has to file a separate action to Mortgagee can move for deficiency judgment
recover any deficiency; in the same action
Buyer at public auction becomes absolute Buyer at public auction becomes absolute
owner only after finality of an action for owner only after confirmation of the sale;
consolidation of ownership;
Mortgagee is given a special power of Mortgagee need not be given a special power
attorney in the mortgage contract to of attorney.
foreclose the mortgaged property in case of
default.
It has been held that the mortgagor who is not the debtor and who merely executed the mortgage to
securetheprincipaldebtorsobligation,isnotliableforthedeficiencyunlessheassumedliabilityforthe
sameinthecontract(PhilippineTrustCo.vs.EchausTanSiua,52Phil.852)
Since a deficiency judgment cannot be obtained against the mortgagor who is not the debtor in the
principalobligation,mortgageemayhavetofileaseparatesuitagainsttheprincipaldebtor.
780
Act3135
781
Rule68
782
90to120days,andanytimebeforeconfirmationofforeclosuresale);
174
May be exercised even after the foreclosure There isno right of redemption in a judicial
sale provided it is made before the sale is foreclosure of mortgage under Rule 68. This
confirmed by order of the court. right of redemption exists only in
extrajudicial foreclosures where there is
always a right of redemption within one (1)
year from the date of sale,783 but interpreted
by the Court to mean one (1) year from the
registration of the sale.
May also exist in favor of other General rule: In judicial foreclosures there is
encumbrances. If subsequent lien holders are only an equity of redemption which can be
not impleaded as parties in the foreclosure exercised prior to the confirmation of the
suit, the judgment in favor of the foreclosing foreclosure sale. This means that after the
mortgagee does not bind the other lien foreclosure sale but before its confirmation,
holders. In this case, their equity of the mortgagor may exercise his right of pay
redemption remains unforeclosed. A the proceeds of the sale and prevent the
separate foreclosure proceeding has to be confirmation of the sale.
brought against them to require them to
redeem from the first mortgagee or from the
party acquiring the title to the mortgaged
property.
If not by banks, the mortgagors merely have Exception: there is a right of redemption if
an equity of redemption, which is simply the foreclosure is in favor of banks as
their right, as mortgagor, to extinguish the mortgagees, whether the foreclosure be
mortgage and retain ownership of the judicial or extrajudicial. This right of
property by paying the secured debt prior to redemption is explicitly provided in Sec. 47784
783
Sec.3,Act3135
784
ForeclosureofRealEstateMortgage.Intheeventofforeclosure,whetherjudiciallyorextrajudicially,
ofanymortgageonrealestatewhichissecurityforanyloanorothercreditaccommodationgranted,the
mortgagorordebtorwhoserealpropertyhasbeensoldforthefullor partialpaymentofhisobligation
shallhavetherightwithinoneyearafterthesaleoftherealestate,toredeemthepropertybypayingthe
amountdueunderthemortgagedeed,withinterestthereonatratespecifiedinthemortgage,andallthe
costsandexpensesincurredbythebankorinstitutionfromthesaleandcustodyofsaidpropertylessthe
incomederivedtherefrom.However,thepurchaserattheauctionsaleconcernedwhetherinajudicialor
extrajudicial foreclosure shall have the right to enter upon and take possession of such property
immediatelyafterthedateoftheconfirmationoftheauctionsaleandadministerthesameinaccordance
with law. Any petition in court to enjoin or restrain the conduct of foreclosure proceedings instituted
pursuanttothisprovisionshallbegivenduecourseonlyuponthefilingbythepetitionerofabondinan
amountfixedbythecourtconditionedthathewillpayallthedamageswhichthebankmaysufferbythe
enjoiningortherestraintoftheforeclosureproceeding.
175
the confirmation of the foreclosure sale of the General Banking Law of 2000 while
the law mentions the redemption period to
be one (1) year counted from the date of
registration of the certificate in the Registry
of Property.
11. Partition785
The separation, division and assignment of a thing held in common among those to
whom it may belong.786
The action shall be brought by the person who has a right to compel the partition of
real estate788 or of an estate composed of personal property, or both real and personal
property.789 The plaintiff is a person who is supposed to be a co-owner of the property or
estate sought to be partitioned. The defendants are all the co-owners. All the co-owners
must be joined. Accordingly, an action will not lie without the joinder of all co-owners and
other persons having interest in the property.790
NotwithstandingAct3135,juridicalpersonswhosepropertyisbeingsoldpursuanttoanextrajudicial
foreclosure,shallhavetherighttoredeemthepropertyinaccordancewiththisprovisionuntil,butnot
after,theregistrationofthecertificateofforeclosuresalewiththeapplicableRegisterofDeedswhichin
nocaseshallbemorethanthree(3)monthsafterforeclosure,whicheverisearlier.Ownersofproperty
that has been sold in a foreclosure sale prior to the effectivity of this Act shall retain their redemption
rightsuntiltheirexpiration.
785
Rule69
786
Cruzvs.CA,456SCRA165
787
Art.494
Instanceswhenacoownermaynotdemandpartitionatanytime:
(a)Thereisanagreementamongthecoownerstokeepthepropertyundividedforacertainperiodof
timebutnotexceedingten(10)years;
(b)Whenpartitionisprohibitedbythedonorortestatorforaperiodnotexceedingtwenty(20)years;
(c)Whenpartitionisprohibitedbylaw;
(d)When theproperty isnotsubjecttoaphysicaldivisionandtodoso wouldrenderit
unserviceablefortheuseforwhichitisintended(Art.495)
(e)Whentheconditionimposeduponvoluntaryheirsbeforetheycandemandpartitionhasnotyet
beenfulfilled(Art.1084)
788
Sec.1
789
Sec.13
790
Reyesvs.Cordero,46Phil.658
Allthecoowners,therefore,areindispensableparties.
176
The plaintiff shall state in his complaint, the nature and extent of his title, an
adequate description of the real estate of which partition is demanded, and shall join as
defendants all other persons interested in the property.791
He must also include a demand for the accounting of the rents, profits and other
income from the property which he may be entitled to.792
(a) the order of partition where the property of the partition is determined;
(b) the judgment as to the accounting of the fruits and income of the property; and
(c) the judgment of partition.794
The court shall order the partition of the property among all the parties in interest, if
after trial it finds that the plaintiff has the right to partition.795
The order of partition is one that directs the parties or co-owners to partition the
property and the parties may make the partition among themselves by proper instruments of
conveyance, if they agree among themselves. If they do agree, the court shall then confirm
the partition so agreed upon by all of the parties, and such partition, together with the order
of the court confirming the same, shall be recorded in the registry of deeds of the place in
which the property is situated.796
791
Sec.1
792
Sec.8
Thesecannotbedemandedinanotheractionbecausetheyarepartsofthecauseofactionforpartition.
Theywillbebarredifnotsetupinthesameactionpursuanttotheruleagainstsplittingasinglecauseof
action
793
eachcouldbethesubjectofappeal
794
Riano,CivilProcedure,ARestatementfortheBar,2007
795
Sec.2
It was held that this order of partition including an order directing an accounting is final and not
interlocutoryandhence,appealable;thus,revokingpreviouscontraryrulingsonthematter.Afinalorder
decreeingpartitionandaccountingmaybeappealedbyanypartyaggrievedthereby.
796
Sec.2
Therealwaysexiststhepossibilitythatthecoownersareunabletoagreeonthepartition.Iftheycannot
partition the property among themselves, the next stage in the action will follow the appointment of
commissioners.
177
If the parties are unable to agree upon the partition, the court shall appoint not more
than three (3) competent and disinterested persons as commissioners to make the partition,
commanding them to set off to the plaintiff and to each party in interest such part and
proportion of the property as the court shall direct.797
When it is made to appear to the commissioners that the real estate, or a portion
thereof, cannot be divided without prejudice to the interests of the parties, the court may
order it assigned to one of the parties willing to take the same, provided he pays to the other
parties such amounts as the commissioners deem equitable, unless one of the interested
parties asks that the property be sold instead of being so assigned, in which case, the court
shall order the commissioners to sell the real estate at public sale.
The commissioners shall make a full and accurate report to the court of all their
proceedings as to the partition, or the assignment of real estate to one of the parties, or the
sale of the same. Upon the filing of such report, the clerk of court shall serve copies thereof
on all the interested parties with notice that they are allowed ten (10) days within which to
file objections to the findings of the report, if they so desire. No proceeding had before or
conducted by the commissioners shall pass the title to the property or bind the parties until
the court shall have accepted the report of the commissioners and rendered judgment
thereon.798
Upon the expiration of the said period of ten (10) days, or even before the expiration
of such period but after the interested parties have filed their objections to the report or
their statement of agreement therewith, the court may, upon hearing, accept the report and
render judgment in accordance therewith; or, for cause shown, recommit the same to the
commissioners for further report of facts; or set aside the report and appoint new
commissioners; or accept the report in part and reject it in part; and may make such order
and render such judgment as shall effectuate a fair and just partition of the real estate, or of
its value, if assigned or sold as above provided, between the several owners thereof.799
The judgment shall state definitely800the particular portion of the real estate assigned
to each party, the effect of the judgment shall be to vest in each party to the action in
severalty the portion of the real estate assigned to him.
If the whole property is assigned to one of the parties upon his paying to the others
the sum or sums ordered by the court, the judgment shall state the fact of such
payment and of the assignment of the real estate to the party making the payment, and the
797
Sec.3
798
Sec.6
799
Sec.7
800
bymetesandboundsandadequatedescription
178
effect of the judgment shall be to vest in the party making the payment the whole of the real
estate free from any interest on the part of the other parties to the action.
If the property is sold and the sale confirmed by the court, the judgment shall state
the name of the purchaser or purchasers and a definite description of the parcels of real
estate sold to each purchaser, and the effect of the judgment shall be to vest the real estate in
the purchaser/s making the payment/s, free from the claims of any of the parties to the
action.
A certified copy of the judgment shall in either case be recorded in the registry of
deeds of the place in which the real estate is situated, and the expenses of such recording
shall be taxed as part of the costs of the action.801
The provisions of this Rule shall apply to partitions of estates composed of personal
property, or of both real and personal property, in so far as the same may be applicable.802
h. Prescription of action
Does not run in favor of a co-owner or co-heir against his co-owner or co-heirs as
long as there is a recognition of the co-ownership, expressly or impliedly.803
The actions for forcible entry and unlawful detainer belong to the class of actions
known by the generic name accion interdictal805where the issue is the right of physical or
material possession of the subject real property independent of any claim of ownership by
the parties involved.806
801
Sec.13
802
Ibid.
803
Art.494
Theactionforpartitioncannotbebarredbyprescriptionaslongasthecoownershipexists(Aguirrevs.
CA,421SCRA310)
But while the action to demand partition of a coowned property does not prescribe, a coowner may
acquireownershipthereofbyprescriptionwherethereexistsaclearrepudiationofthecoownershipand
thecoownersareapprisedoftheclaimofadverseandexclusiveownership.
804
Rule70
805
ejectment
806
Mendozavs.CA,452SCRA117[2005]
179
(a) Forcible entry,807 where one is deprived of physical possession of real property by
means of force, intimidation, strategy, threats or stealth;
(b) Unlawful Detainer,808 where one illegally withholds possession after the
expiration or termination of his right to hold possession under any contract, express or
implied.
The possession of the defendant is unlawful The possession of the defendant is lawful
from the beginning; issue is which party has from the beginning but becomes illegal by
prior de facto possession; reason of the expiration or termination of his
right to the possession of the property;
The law does not require previous demand Plaintiff must first make such demand which
for the defendant to vacate; is jurisdictional in nature;
The plaintiff must prove that he was in The plaintiff need not have been in prior
prior physical possession of the premises physical possession;
until he was deprived thereof by the
defendant; and
The one (1) year period is generally counted The one (1) year period is counted from the
from the date of actual entry on the date of last demand.
property.
The actions of forcible entry and unlawful detainer are within the exclusive and
original jurisdiction of the MTC, MeTC and MCTC809and shall be governed by the rules on
summary procedure irrespective of the amount of damages or rental sought to be
recovered.810
807
detentacion
808
desahuico
809
Sec.33[2],BP129;RA7691
810
Sec.3
180
A plenary ordinary civil action for the An action for the recovery of the exercise of
recovery of the better right of possession,811 ownership, particularly recovery of
must be filed after the expiration of one (1) possession as an attribute or incident of
year from the accrual of the cause of action ownership;
or from the unlawful withholding of
possession of the realty. In other words, if at
the time of the filing of the complaint more
than one (1) year had elapsed since
defendant had turned plaintiff out of
possession or defendants possession had
become illegal, the action will be not one of
forcible entry or unlawful detainer but an
accion publiciana812.
The basis of the recovery of possession is The basis for the recovery of possession is
the plaintiffs real right of possession or jus ownership itself.
possessionis, which is the right to the
possession of the real property
independent of ownership.
In Geonzon Vda. de Barrera v. Heirs of Vicente Legaspi,813 the Supreme Court explained:
Before the amendments introduced by Republic Act No. 7691,814 the plenary action
of accion publiciana was to be brought before the regional trial court. With the modifications
introduced by R.A. No. 7691 in 1994, the jurisdiction of the first level courts has been
expanded to include jurisdiction over other real actions where the assessed value does not
exceed P20,000, P50,000 where the action is filed in Metro Manila. The first level courts thus
have exclusive original jurisdiction over accion publiciana and accion reivindicatoria where the
811
juridicalpossession
812
Valdezvs,CA,G.R.132424,May2,2006
813
G.R.No.174346,12September2008,565SCRA192,197
814
Anactexpandingthejurisdictionofthemetropolitantrialcourts,municipaltrialcourts,andmunicipal
circuit trial courts, amending for the purpose Batas Pambansa, Blg. 129, otherwise known as the
"JudiciaryReorganizationActof1980"
181
assessed value of the real property does not exceed the aforestated amounts. Accordingly,
the jurisdictional element is the assessed value815 of the property.816
d. Who may institute the action and when; against whom the
action may be maintained
Unless otherwise stipulated, such action by the lessor shall be commenced only after
demand to pay or comply with the conditions of the lease and to vacate is made upon the
lessee, or by serving written notice of such demand upon the person found on the premises,
or by posting such notice on the premises if no person be found thereon, and the lessee fails
to comply therewith after fifteen (15) days in the case of land or five (5) days in the case of
buildings.818
e. Pleadings allowed
Only the complaint, compulsory counterclaim and cross-claim pleaded in the answer,
and the answers thereto.819
The court may dismiss the case outright on any of the grounds for the dismissal of a
civil action which are apparent therein. If no ground for dismissal is found, it shall forthwith
issue summons.820
An unlawful detainer case shall be commenced only after the demand to pay or
comply with the conditions of the lease and to vacate is made upon the lessee.821
815
Assessedvalueisunderstoodtobe"theworthorvalueofpropertyestablishedbytaxingauthoritieson
thebasisofwhichthetaxrateisapplied.Commonly,however,itdoesnotrepresentthetrueormarket
valueoftheproperty."
816
citedinSps.Alcantara,etal.vs.Nido,G.R.No.165133,April19,2010.
817
Sec.1
818
Sec.2
819
Allpleadingsshallbeverified(Sec.4)
820
Sec.5
821
unlessthereexistsastipulationtothecontrary(Sec.2)
182
The court may grant preliminary injunction822to prevent the defendant from
committing further acts of dispossession against the plaintiff.
The court may resolve the issue of ownership only under the following conditions:
(a) When the issue of possession cannot be resolved without resolving the issue of
ownership; and
(b) The issue of ownership shall be resolved only to determine the issue of
possession.824
If the defendant raises the question of ownership and the issue of possession cannot
be resolved without deciding the question of ownership, the issue of ownership shall be
resolved only to determine the issue of possession.825
Such judgment would not bar an action between the same parties respecting title to
the land or building. The resolution of the MeTC on the ownership of the property is merely
provisional or interlocutory. Any question involving the issue of ownership should be raised
and resolved in a separate action brought specifically to settle the question with finality.826
Thedemandmaybeintheformofawrittennoticeserveduponthepersonfoundinthepremises.The
demandmayalsobemadebypostingawrittennoticeonthepremisesifnopersoncanbefoundthereon.
Therequirementforademandimpliesthatthemerefailureoftheoccupanttopayrentalsorhisfailure
to comply with the conditions of the lease does not ipso facto render his possession of the premises
unlawful.Itisthefailuretocomplywiththedemandthatvestsuponthelessoracauseofaction.
It has been ruled, however, that the demand upon a tenant may be oral. (Jakihaca vs. Aquino, 181
SCRA67).
Sufficientevidencemustbeadducedtoshowthattherewasindeedademandliketestimoniesfrom
disinterestedandunbiasedwitnesses.
822
inaccordancewiththeprovisionsofRule58,supra
823
Sec.15
824
Sec.16
The assertion by the defendant of ownership over the disputed property does not serve to divest the
inferiorcourtofitsjurisdiction.Thedefendantcannotdeprivethecourtofjurisdictionbymerelyclaiming
ownership of the property involved (Rural Bank of Sta. Ignacia vs. Dimatulac, 401 SCRA 742; Perez vs.
Cruz,404SCRA487)
825
Sec.3,RA7691
826
Robertsvs.Papio,GR166714,Feb.9,2007
183
Defendant must:
(c) Deposit periodically with the RTC, during the pendency of the appeal, the
adjudged amount of rent due under the contract or if there be no contract, the reasonable
value of the use and occupation of the premises.828
Forcible entry and unlawful detainer actions are summary in nature designed to
provide for an expeditious means of protecting actual possession or the right to possession
of the property involved.829These actions shall both fall under the coverage of the Rule on
Summary Procedure, irrespective of the amount of damages or unpaid rental sought to be
recovered.830
(a) Motion to dismiss the complaint except on the ground of lack of jurisdiction
over the subject matter, or failure to comply with section 18;831
(c) Motion for new trial, or for reconsideration of a judgment, or for reopening of
trial;
(d) Petition for relief from judgment;
(e) Motion for extension of time to file pleadings, affidavits or any other paper;
(f) Memoranda;
(g) Petition for certiorari, mandamus, or prohibition against any interlocutory order
issued by the court;
827
topayfortherents,damagesandcostsaccruingdowntothetimeofthejudgmentappealedfrom
828
Sec.19
Exceptionstotherule:
(a)Wheredelayinthedepositisduetofraud,accident,mistake,orexcusablenegligence;
(b)Wheresuperveningeventsoccursubsequenttothejudgmentbringingaboutamaterialchangein
thesituationofthepartieswhichmakesexecutioninequitable;and
(c) Where there is no compelling urgency for the execution because it is not justified by the
circumstances.
829
Tubianovs.Riazo,335SCRA531
830
Sec.3
831
referraltoalupon
184
a. Kinds of contempt
The purpose is to compensate for the benefit The purpose is to punish, to vindicate the
of a party; authority of the court and protect its
outraged dignity;
832
Rule71
833
17C.J.S.4
It is inherent in all courts; its existence is essential to the preservation of order in judicial
proceedingsandtotheenforcementofjudgments,ordersandmandatesofthecourts,andconsequently,
tothedueadministrationofjustice(Perkinsvs.DirectorofPrisons,58Phil.271)
834
dependingonthenatureandeffectofthecontemptuousact
835
accordingtothemannerofcommission
185
The rules of procedure governing contempt Should be conducted in accordance with the
proceedings or criminal prosecutions principles and rules applicable to criminal
ordinarily are inapplicable to civil contempt cases, insofar as such procedure is consistent
proceedings. with the summary nature of contempt
proceedings
836
Sec.1,Rule7
837
Re:Letterdated21Feb.2005ofAtty.NoelSorreda,464SCRA32
186
A person adjudged in direct contempt may not appeal therefrom. His remedy is a
petition for certiorari or prohibition directed against the court which adjudged him in direct
contempt.840
The penalty for direct contempt depends upon the court which the act was
committed:
(a) Against an RTC or a court of equivalent - a fine not exceeding 2,000 pesos or
or higher rank imprisonment not exceeding 10 days, or
both;
(c) Refusal or omission to do an act which is - he may be imprisoned by order of the court
yet within the power of the respondent to concerned until he performs it.842
perform
838
Failurebycounseltoinformthecourtofthedeathofhisclientconstitutesindirectcontemptwithinthe
purviewofSec.3,Rule71,sinceitconstitutesanimproperconducttendingtoimpedetheadministration
ofjustice.
839
Sec.3
840
Sec.2
Pending the resolution of the petition for certiorari or prohibition, the execution of the judgment for
direct contempt shall be suspended. The suspension, however, shall take place only if the person
adjudged in contempt files a bond fixed by the court which rendered the judgment. This bond is
conditioneduponhisperformanceofthejudgmentshouldthepetitionbedecidedagainsthim.
841
Sec.1
842
Sec.8
187
The person adjudged in indirect contempt may appeal from the judgment or final
order of the court in the same manner as in criminal cases.843
The punishment for indirect contempt depends upon the level of the court against
which the act was committed:
(a) Against an RTC or a court of equivalent - a fine not exceeding 30,000 pesos or
or higher rank imprisonment not exceeding 6 months, or
both;
(c) Against a person or entity exercising - depends upon the provisions of the law
quasi-judicial functions which authorizes a penalty for contempt
against such persons or entities.
May be initiated motu proprio by the court against which the contempt was committed
by an order or any other formal charge requiring the respondent to show cause why he
should not be punished for contempt.
In all other cases, charges for indirect contempt shall be commenced by a verified
petition with supporting particulars and certified true copies of documents or papers
involved therein, and upon full compliance with the requirements for filing initiatory
pleadings for civil actions in the court concerned. If the contempt charges arose out of or are
related to a principal action pending in the court, the petition for contempt shall allege that
fact but said petition shall be docketed, heard and decided separately, unless the court, in its
discretion, orders the consolidation of the contempt charge and the principal action for joint
hearing and decision.845
843
The appeal will not, however, have the effect of suspending the judgment if the person adjudged in
contemptdoesnotfileabondinanamountfixedbythecourtfromwhichtheappealistaken.Thisbond
isconditioneduponhisperformanceofthejudgmentorfinalorderiftheappealisdecidedagainst(Sec.
11)
844
Asidefromtheapplicablepenalties,ifthecontemptconsistsintheviolationofawritofinjunction,TRO
orstatusquo order, he mayalso be ordered tomake complete restitutiontothepartyinjured by such
violationofthepropertyinvolvedorsuchamountasmaybeallegedandproved(Sec.7)
845
Sec.4
188
When the contempt consists in the refusal or omission to do an act which is yet in
the power of the respondent to perform, he may be imprisoned by order of the court
concerned until he performs it.847
Quasi-judicial bodies that have the power to cite persons for indirect contempt can
only do so by initiating them in the proper RTC. It is not within their jurisdiction and
competence to decide the indirect contempt cases. The RTC of the place where contempt
has been committed shall have jurisdiction over the charges for indirect contempt that may
be filed.849
846
SeeTable
847
Sec.8
The punishment is imposed for the benefit of a complainant or a party to a suit who has been injured
asidefromtheneedtocompelperformanceoftheordersordecreesofthecourt,whichthecontemnor
refusestoobeyalthoughabletodoso.Ineffect,itiswithinthepowerofthepersonadjudgedguiltyof
contempttosethimselffree.
Indefinite incarceration may be resorted to where the attendant circumstances are such that the non
compliance with the court order is an utter disregard of the authority of the court which has then no
otherrecoursebuttouseitscoercivepower.Whenapersonorpartyislegallyandvalidlyrequiredbya
courttoappearbeforeitforacertainpurpose,andwhenthatrequirementisdisobeyed,theonlyremedy
leftforthecourtistouseforcetobringthepersonorpartybeforeit.
848
Sec.12
849
Sec.12
189
The MTC, MeTC and MCTC shall exercise exclusive original jurisdiction over
probate proceedings, testate and intestate, where the value of the estate does not exceed
P300,000 outside Metro Manila or where such estate does not exceed P400,000 in Metro
Manila.852
850
Rules72109
851
Rules73
852
RA7691
190
Probate courts are courts of limited jurisdiction. It may only determine and rule upon
issues relating to the settlement of the estate, namely:
853
inhabitant
854
whethercitizenoralien
855
atthetimeofdeath.
856
Ibid.
857
Sec.1
Thecourtfirsttakingcognizanceofthesettlementoftheestateofadecedentshallexercisejurisdictionto
theexclusionofallothercourts.
Wheretheproceedingswereinstitutedintwocourtsandthequestionofvenueisseasonablyraised,the
courtinwhich theproceeding was first filedhas exclusivejurisdiction to resolve the issue (DeBorja vs.
Tan,97Phil.872)
858
Residencemeanshispersonal,actual,orphysicalhabitation,hisactualresidenceorplaceofabode.
859
Thequestionofresidenceisdeterminativeonlyofthevenueanddoesnotaffectthejurisdictionofthe
court.
Hence, the institution of the proceeding in the province wherein the decedent neither had
residencenorestatedoesnotvitiatetheactionoftheprobatecourt.
860
Themainfunctionofaprobatecourtistosettleandliquidatetheestatesofadeceasedperson,either
summarilyorthroughtheprocessofadministration
The RTC acting as a probate court exercises but limited jurisdiction, thus, it has no power to take
cognizance of and determine the issue of title to property claimed by a third person adversely to the
decedentunlesstheclaimantandallotherpartieshavelegalinterestinthepropertyconsent,expresslyor
impliedly,tothesubmissionofthequestiontotheprobatecourt.Inthatcase,iftheprobatecourtallows
theintroductionofevidenceonownership,itisforthesolepurposeofdeterminingwhetherthesubject
properties should be included in the inventory, which is within the probate courts competence. The
determinationisonlyprovisionalsubjecttoaproperactionattheRTCinaseparateactiontoresolvethe
title.
191
The jurisdiction of the probate court merely relates to matters having to do with the
settlement of the estate and the probate of wills, the appointment and removal of
administrators, executors, guardians and trustees. The question of ownership is, as a rule, an
extraneous matter which the probate court cannot resolve with finality.
(i) If a person defies a probate order, it may issue a warrant for the apprehension
and imprisonment of such person until he performs such order or judgment, or is
released.868
861
Sec.3,Rule77
862
Sec.5,Rule79
863
Sec.11,Rule86
864
Sec.11,Rule88
865
Sec.2,Rule89
866
Sec.1,Rule90
867
Sec.3,Rule73
868
Ibid.
Thecourtactsastrustee,andassuch,shouldjealouslyguardtheestateandseetoitthatitiswiselyand
economicallyadministered,notdissipated(Timbolvs.Cano,111Phil.923).
869
Rule74
870
Sec.2
192
b. Heirs are all of age, or the minors are represented by their judicial or legal
representatives duly authorized for the purpose.872
It shall be presumed that the decedent left no debts if no creditor files a petition for
letters of administration within two (2) years after the death of the decedent.873
If within the same time of two (2) years, it shall appear that there are debts
outstanding against the estate which have not been paid, or that an heir or other person has
been unduly deprived of his lawful participation payable in money, the court having
jurisdiction of the estate may, by order for that purpose, after hearing, settle the amount of
such debts or lawful participation and order how much and in what manner each distributee
shall contribute in the payment thereof, and may issue execution, if circumstances
require, against the bond or against the real estate belonging to the deceased, or both. Such
bond and such real estate shall remain charged with a liability to creditors, heirs, or other
persons for the full period of two (2) years after such distribution, notwithstanding any
transfers of real estate that may have been made.874
If there is only one heir, he may adjudicate to himself the entire estate by means of
an affidavit filed in the Office of the Register of Deeds.875
871
infra
872
1.DivisionofestatemustbeinapublicinstrumentorbyAffidavitofadjudicationinthecaseofasole
heir.
2.FiledwithproperRegistryofDeed
3. Publication of notice of the fact of extrajudicial settlement once a week for three (3) consecutive
weeks.
4.Bondfiledequivalenttothevalueofpersonalproperty.
873
Sec.2
Ifitshallappearatanytimewithintwo(2)yearsafterthesettlementanddistributionofanestatethatan
heirorotherpersonhasbeenundulydeprivedofhislawfulparticipationintheestate,suchheirorsuch
other person may compel the settlement of the estate in the courts for the purpose of satisfying such
lawfulparticipation
874
Sec.4
875
Sec.1
876
Thisisjurisdictional(DelRosariovs.Conanan,L37903,March30,1977).
193
c. Publication, once a week for three (3) consecutive weeks in a newspaper of general
circulation in the province;
(a) The creditor may ask for administration of enough property of the estate
sufficient to pay the debt, but the heirs cannot prevent such administration by paying the
obligation;877
(b) Where the estate has been summarily settled, the unpaid creditor may, within the
two-year period, file a motion in the court wherein such summary settlement was had for the
payment of his credit.878After the lapse of the two-year period, an ordinary action may be
instituted against the distributees within the statute of limitations, but not against the bond.
(c) The action to annul a deed of extrajudicial settlement on the ground of fraud
should be filed within four (4) years from the discovery of the fraud.879
877
McMickingvs.SyConbieng,21Phil.211
878
Exception:Ifonthedateoftheexpirationofthetwoyearperiod,thecreditororheiris
a)Aminororincapacitated,or
b)Inprisonor
c)OutsidethePhilippines,
hemaypresenthisclaimwithinone(1)yearaftersuchdisabilityisremoved.(Sec.5,Rule75)
The 2year lien upon the real property distributed by extrajudicial or summary settlement shall be
annotated on the title issued to the distributees and after 2 years will be cancelled by the register of
deedswithoutneedofcourtorder(LRCCircular143)
Suchliencannotbedischargednortheannotationbecancelledwithinthe2yearperiodevenifthe
distributeesoffertopostabondtoanswerforcontingentclaimsfromwhichlienisestablished.(Rebong
vs.Ibanez,79Phil324)
879
Geronavs.DeGuzman,L19060,May29,1964
194
(a) In rem.881
(b) Mandatory.882
(c) Imprescriptible.883
(d) The doctrine of estoppel does not apply.884
(a) any creditor - as preparatory step for filing of his claim therein;885
(b) devisee or legatee named in the will;
(c) person interested in the will;886
(d) testator himself during his lifetime the possession of the will is not necessary.887
880
Rules7576
881
bindingonthewholeworld
882
No will shall pass either real or personal property unless proved and allowed in the proper court.
However,ithasbeenheldinonecasethatawillmaybesustainedonthebasisofArticle1080oftheCivil
Codewhichreadsasfollows:
Ifthetestatorshouldmakeapartitionofhispropertiesbyanactintervivos,orbywill,suchpartition
shallstandinsofarasitdoesnotprejudicethelegitimeoftheforcedheir.(MangOyvs.CA,144SCRA
33).
883
becauseofthepublicpolicytoobeythewillofthetestatorandthestatecouldnothaveintendedto
defeat the same by applying thereto the statute of limitation of actions (Guevara vs. Guevara, 74 Phil.
479)
884
presentationandprobateofwillisrequiredbypublicpolicyandinvolvespublicinterest.(Fernandezvs.
Dimagiba)
885
Regalado,p.26
886
i.e.,heirs
887
Sec.1,Rule76
888
ifhebenotpetitioner
889
Iftestatorasksfortheallowanceofhisownwill(Sec.4)
195
(b) The names, ages, and residences of the heirs, legatees, and devisees of the testator
ordecedent;
(c) The probable value and character of the property of the estate;
(d) The name of the person for whom letters are prayed;
(e) If the will has not been delivered to the court, the name of the person having
custody of it.891
(b) If the testator was insane, or otherwise mentally incapable to make a will, at the
time of its execution;
(d) If it was procured by undue and improper pressure and influence, on the
part of the beneficiary, or of some other person for his benefit;
(e) If the signature of the testator was procured by fraud or trick, and he did not
intend that the instrument should be his will at the time of fixing his signature thereto.892
890
deathofthetestatorandhisresidenceatthetimeofdeathortheprovincewhereestatewasleftby
thedecedentwhoisanonresident
891
Sec.2
But no defect in the petition shall render void the allowance of the will, or the issuance of letters
testamentaryorofadministrationwiththewillannexed(ibid.)
892
Sec.9
GroundsunderArt.839,CivilCode:
(a)Iftheformalitiesrequiredbylawhavenotbeencompliedwith;
(b) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
execution;
(c)Ifitwasexecutedthroughforceorduress,ortheinfluenceoffear,orthreats;
(d) If it was procured by undue and improper pressure and influence, on the part of the
beneficiaryorofsomeotherperson;
(e)Ifthesignatureofthetestatorwasprocuredbyfraud;
(f)Ifthetestatoractedbymistakeordidnotintendthattheinstrumenthesignedshouldbehiswillat
thetimeofaffixinghissignaturethereto.
196
Requisites:
Effects of Probate:
1. The will shall have the same effect as if originally proved and allowed in court of
the Philippines.
Letters testamentary is the appointment issued by a probate court, after the will
has been admitted to probate, to the executor named in the will to administer the estate of
the deceased testator, provided the executor named in the will is competent, accepts the trust
and gives a bond.896
893
Rule77
894
Regalado
895
Rule78
896
Sec.4
197
(a) Surviving spouse, or next of kin, or both, or person as such surviving spouse, or
next of kin, requests, if competent and willing to serve;
(b) One or more of the principal creditors if such surviving spouse, or next of kin,
or the person selected, be incompetent or unwilling, or if they neglect for thirty (30) days
after the death of the decedent to apply for administration or to request that administration
be granted to some other person, it may be granted to such other person, if competent and
willing to serve.
2. Order of preference898
Any person interested in a will may state in writing the grounds why letters
testamentary should not issue to the persons named therein executors, or any of them, and
the court, after hearing upon notice, shall pass upon the sufficiency of such grounds. A
petition may, at the same time, be filed for letters of administration with the will annexed.899
The executor or administrator901 of the estate of a deceased partner shall at all times
have access to, and may examine and take copies of, books and papers relating to the
partnership business, and may examine and make invoices of the property belonging to such
partnership; and the surviving partner or partners, on request, shall exhibit to him all such
books, papers, and property in their hands or control. On the written application of such
executor or administrator, the court having jurisdiction of the estate may order any such
897
Sec.6
898
See1.above
899
Sec.1,Rule79
900
Rule84
901
Anexecutoristhepersonnominatedbyatestatortocarryoutthedirectionsandrequestsinhiswill
andtodisposeofhispropertyaccordingtohistestamentaryprovisionsafterhisdeath(21Am.Jur.369)
An administrator is a person appointed by the court, in accordance with the governing statute, to
administerandsettleintestateestateandsuchtestateestateasnocompetentexecutorwasdesignated
bythetestator.
198
surviving partner or partners to freely permit the exercise of the rights, and to exhibit the
books, papers, and property and may punish any partner failing to do so for contempt.902
An executor or administrator shall maintain in tenantable repair the houses and other
structures and fences belonging to the estate, and deliver the same in such repair to the heirs
or devisees when directed so to do by the court.903
If there is
If the administrator
902
Sec.1
903
Sec.2
904
Sec.3
An administrator of an intestate cannot exercise the right of legal redemption over a portion of the
property owned in common sold by one of the other coowners since this is not within the powers of
administration(Carovs.CA,113SCRA10)
Where the estate of a deceased person is already the subject of a testate or intestate proceeding, the
administrator cannot enter into any transaction involving it without any prior approval of the Court.
(EstateofOlavevs.Reyes,123SCRA767).
The right of an executor or administrator to the possession and management of the real and personal
properties of the deceased is not absolute and can only be exercised so long as it is necessary for the
paymentofthedebtsandexpensesofadministration(Manaquilvs.Villegas,189SCRA335).
905
in this second instance, the administrator shall have the same powers as that of a general
administrator.
906
withinone(1)yearorwhenthecourtdirects
199
(d) absconding; or
(e) insanity or incapability or unsuitability to discharge the trust.907
Administration is for the purpose of liquidation of the estate and distribution of the
residue among the heirs and legatees. Liquidation means the determination of all the assets
of the estate and payment of all debts and expenses.
The purpose of presentation of claims against decedents of the estate in the probate
court is to protect the estate of deceased persons. That way, the executor or administrator
will be able to examine each claim and determine whether it is a proper one which should be
allowed.908
Claims shall be filed not more than twelve (12) nor less than six (6) months after the
date of the first publication of the notice; otherwise, they are barred forever.909
2. Statute of Non-claims
The rule requires certain creditors of a deceased person to present their claims for
examination and allowance within a specified period, the purpose thereof being to settle the
estate with dispatch, so that the residue may be delivered to the persons entitled thereto
without their being afterwards called upon to respond in actions for claims, which, under the
ordinary statute of limitations, have not yet prescribed.912
907
Sec.2
Thesegroundsareexclusive.
908
Further,theprimaryobjectoftheprovisionsrequiringpresentationistoapprisetheadministratorand
theprobatecourtoftheexistenceoftheclaimsothataproperandtimelyarrangementmaybemadefor
itspaymentinfullorbyprorataportionintheduecourseoftheadministration,inasmuchasuponthe
deathofa person, hisentire estate isburdened with thepaymentof all hisdebtsand no creditor shall
enjoy any preference or priority; all of them shall share pro rata in the liquidation of the estate of the
deceased.
909
Sec.5
Claimsreferredtoundersectionrefertoclaimsfortherecoveryofmoneyandwhicharenotsecured
byalienagainstthepropertyoftheestate.(Olavevs.Carlos,208Phil678).
910
forcauseshownandonsuchtermsasareequitable
911
Sec.2
BelatedClaimsareclaimsnotfiledwithintheoriginalperiodfixedbythecourt.
912
Santosvs.Manarang,27Phil.213
200
If the executor or administrator has a claim against the estate he represents, he shall
give notice thereof, in writing, to the court, and the court shall appoint a special
administrator, who shall, in the adjustment of such claim, have the same power and be
subject to the same liability as the general administrator or executor in the settlement of
other claims. The court may order the executor or administrator to pay to the special
administrator necessary funds to defend such claim.913
4. Payment of Debts914
(a) All debts shall be paid in full within the time limited for the purpose;915
(b) If the testator makes provision by his will, or designates the estate to be
appropriated for the payment of debts they shall be paid according to the provisions of the
will, which must be respected;916
(c) If the estate designated in the will is not sufficient, such part of the estate as is
not disposed of by will shall be appropriated for the purpose;917
(d) The personal estate not disposed of by will shall be first chargeable with payment
of debts and expenses;
(e) If the personal estate is not sufficient, or its sale would be detrimental to the
participants of the estate, the real estate not disposed of by will shall be sold or encumbered
for that purpose;918
(f) Any deficiency shall be met by contributions from devisees, legatees and heirs
who haveentered into possession of portions of the estate before debts and expenses have
been paid;919
(g) The executor or administrator shall retain sufficient estate to pay contingent
claims when the same becomes absolute.920
StatuteofNonClaimssupersedestheStatuteofLimitationsinsofarasthedebtsofdeceasedpersonsare
concerned. However, both statute of NonClaims and Statute of Limitations must concur in order for a
creditortocollect.
913
Sec.8
914
Rule88
915
Sec.1
916
Sec.2
917
ibid.
918
Sec.3
919
Sec.6
920
Sec.4
201
If the estate is insolvent, the debts shall be paid in the following manner:
(a) The executor or administrator shall pay the debts in accordance with the
preference of credits established by the Civil Code;921
(b) No creditor of any one class shall receive any payment until those of the
preceding class are paid;922
(c) If there are no assets sufficient to pay the credits of any one class of creditors,
each creditor within such class shall be paid a dividend in proportion to his claim;923
(d) Where the deceased was a non-resident, his estate in the Philippines shall be
disposed of in such a way that creditors in the Philippines and elsewhere may receive an
equal share in proportion to their respective credits;924
(e) Claims duly proved against the estate of an insolvent resident of the Philippines,
the executor or administrator, having had the opportunity to contest such claims, shall be
included in the certified list of claims proved against the deceased. The owner of such claims
shall be entitled to a just distribution of the estate in accordance with the preceding rules if
the property of such deceased person in another country is likewise equally apportioned to
the creditors residing in the Philippines and other creditors, according to their respective
claims;925
(f) The payments of debts of the decedent shall be made pursuant to the order of the
probate court.926
921
Sec.7
922
Sec.8
923
Ibid.
924
Sec.9
925
Sec.10
926
Sec.11
927
Sec.15
202
Actions to
(a) recover real or personal property928from the estate, or to enforce a lien thereon,
or
(b) recover damages for an injury to person or property, real or personal.929
(b) The deceased in his lifetime had made or attempted to make a fraudulent
conveyance of his real or personal property, or a right or interest therein, or a debt or credit,
with intent to defraud his creditors or to avoid any right, debt or duty; or had so conveyed
such property,right, debt, or credit that by law the conveyance would be void as against his
creditors;
(c) The subject of the attempted conveyance would be liable to attachment by any of
them in his lifetime;
(d) The executor or administrator has shown to have no desire to file the action or
failed toinstitute the same within a reasonable time;
928
oraninteresttherein
929
Wheneverapartytoapendingactiondies,andtheclaimisnottherebyextinguished,itshallbethe
dutyofhiscounseltoinformthecourtwithinthirty(30)daysaftersuchdeathofthefactthereof,andto
give the name and address of his legal representative or representatives. Failure of counsel to comply
withthisdutyshallbeagroundfordisciplinaryaction.Theheirsofthedeceasedmaybeallowedtobe
substitutedforthedeceased,withoutrequiringtheappointmentofanexecutororadministratorandthe
courtmayappointaguardianadlitemfortheminorheirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice. If no legal representative is named by the
counselforthedeceasedparty,oriftheonesonamedshallfailtoappearwithinthespecifiedperiod,the
courtmayordertheopposingparty,withinaspecifiedtime,toprocuretheappointmentofan
executororadministratorfortheestateofthedeceasedandthelattershallimmediatelyappearforand
onbehalfofthedeceased.Thecourtchargesinprocuringsuchappointment,ifdefrayedbytheopposing
party,mayberecoveredascosts(Sec.16)
When the action is for recovery of money arising from contract, express or implied, and the defendant
diesbeforeentryoffinaljudgmentinthecourtinwhichtheactionwaspendingatthetimeofsuchdeath,
itshallnotbedismissedbutshallinsteadbeallowedtocontinueuntilentryoffinaljudgment.Afavorable
judgmentobtainedbytheplaintiffthereinshallbeenforcedinthemannerespeciallyprovidedinthese
Rulesforprosecutingclaimsagainsttheestateofadeceasedperson(Sec.20)
203
(e) Leave is granted by the court to the creditor to file the action;
(g) The action by the creditor is in the name of the executor or administrator.930
Before there could be a distribution of the estate, the following two stages must be
followed:
And likewise after, not before, the declaration of heirs is made may the residue be
distributed and delivered to the heirs.933
1. Liquidation
The determination of all assets of the estate and payment of all debts and expenses.
The order of distribution shall be made after payments of all debts, funeral expenses,
expenses for administration, allowance of widow and inheritance tax is effected.
1. collate;
2. determine heirs; and
930
Sec.10
931
Rule90
932
liquidationofestate
933
Thesettlementofadecedentsestateisaproceedinginremwhichisbindingagainstthewholeworld.
Allpersonshavinginterestinthesubjectmatterinvolved,whethertheywerenotifiedornot,areequally
bound.
204
If the estate is a testate estate, the project of partition must conform to the terms of
the will; if intestate, the project of partition must be in accordance with the provisions of the
Civil Code.934
(a) Demand his share through a proper motion in the same probate or
administration proceedings, or
If there is a controversy before the court as to who are the lawful heirs of the
deceased person or as to the distributive shares to which each person is entitled under the
law, the controversy shall be heard and decided as in ordinary cases.936
(a) To satisfy the contributive shares of devisees, legatees and heirs in possession
of the decedents assets;937
934
CamiadeReyesvs.ReyesdeIlano,63Phil.629
935
Ramosvs.Octuzar,89Phil.730
It has been held that an order which determines the distributive share of the heirs of a deceased
person is appealable. If not appealed within the reglementary period, it becomes final (Imperial vs.
Muoz,58SCRA)
The Court allowed the continuation of a separate action to annul the project of partition by a
preterited heir, since the estate proceedings have been closed and terminated for over three (3) years
(Guilasvs.JudgeoftheCFIofPampanga,43SCRA117)andonthegroundoflesion,preteritionandfraud
(Soliviovs.CA,99Phil.1069)
936
Sec.1
937
Sec.6,Rule88
938
Sec.3,Rule90
939
Sec.13,Rule132
205
I. Trustees940
Trust is the right to the beneficial enjoyment of property, the legal title to which is
vested in another. It is a fiduciary relationship that obliges the trustee to deal with the
property for the benefit of the beneficiary. Trust relations between parties may either be
express or implied.941
An instrument or agent of the cestui que trust, An executor is the person named in the will
who acquires no beneficial interest in the to administer the decedents estate and carry
estate; he merely took the legal estate only as out the provisions thereof.
the proper execution of the trust required;
and, his estate ceases upon the fulfillment of An administrator is the person appointed by
the testators wishes, in which case, the same the court to administer the estate where the
vest absolutely in the beneficiary. decedent died intestate, or where the will was
void and not allowed to probate, or where
no executor was named in the will, or the
executor named therein isincompetent or
refuses to serve as such.
Duties are usually governed by the intention Duties are fixed and/or limited by law.944
of the trustor or the parties if established by
a contract. Duties may cover a wider range.
940
Rule98
Requisitesforexistenceofavalidtrust:
(a)Existenceofapersoncompetenttocreate;
(b)Sufficientwordstocreateit;
(c)Apersoncapableofholdingastrusteeaspecifiedorascertainableobject;
(d)Adefinitetrustres;and
(e)Adeclarationofthetermsofthetrust
941
Secuyavs.DeSelma,G.R.136021February22,2000
942
Art.1060,CC
943
Ibid.
944
Rule84
206
(e) Abuse and abandonment of the trust; (e) otherwise incapable or unsuitable to
discharge trust;
(f) Refusal to recognize or administer the
trust; (f) Fraud or misrepresentation.946
(a) That the trustee will make and return to the court, at such time as it may order, a
trueinventory of all the real and personal estate belonging to him as trustee, which at the
time of the making of such inventory shall have come to his possession or knowledge;
(b) That he will manage and dispose of all such estate, and faithfully discharge his
trust inrelation thereto, according to law and the will of the testator or the provisions of the
instrument or order under which he is appointed;
(c) That he will render upon oath at least once a year until his trust is fulfilled, unless
he isexcused therefrom in any year by the court, a true account of the property in his hands
and of the management and disposition thereof, and will render such other accounts as the
court may order;
945
Sec.8,Rule98
946
Cobarrubiasvs.Dizon,76Phil.209
207
(d) That at the expiration of his trust, he will settle his accounts in court and pay
over and deliver all the estate remaining in his hands, or due from him on such settlement, to
the person or persons entitled thereto.
When the trustee is appointed as a successor to a prior trustee, the court may
dispense with the making and return of an inventory, if one has already been filed, and in
such case the condition of the bond shall be deemed to be altered accordingly.947
A trustee may be removed upon petition to the proper RTC of the parties
beneficially interested, after due notice to the trustee and hearing, if it appears essential in the
interests of the petitioners.
The court may also, after due notice to all persons interested, remove a trustee who
is insane or otherwise incapable of discharging his trust or evidently unsuitable therefor. A
trustee, whether appointed by the court or under a written instrument, may resign his trust if
it appears to the court proper to allow such resignation.948
A trustee whose acts or omissions are such as to show a want of reasonable fidelity
will beremoved by the court and where trust funds are to be invested by the trustee, neglect
to invest constitutes of itself a breach of trust, and is a ground for removal.949
A trustee appointed by the RTC shall have the same rights, powers, and duties as if
he had been appointed by the testator.951
Such new trustee shall have and exercise the same powers, rights, and duties as if he
had been originally appointed, and the trust estate shall vest in him in like manner as it had
vested or would have vested, in the trustee in whose place he is substituted; and the court
947
Sec.6
Atrusteeappointedbythecourtisrequiredtofurnishabondandthetermsofthetrustorastatute
mayprovidethatatrusteeappointedbyacourtshallberequiredtofurnishabondinordertoqualifyhim
toadministerthetrust(54Am.Jur.425)
However,thecourtmay,untilfurtherorders,exemptatrusteeunderawillfromgivingabondwhen
thetestatorhasdirectedorrequestedsuchexemptionorwhenallpersonsbeneficiallyinterestedinthe
trust,beingoffullage,requesttheexemption.Suchexemptionmaybecancelledbythecourtatanytime,
andthetrusteerequiredtoforthwithfileabond(Sec.5)Ifthetrusteefailstofurnishabondasrequired
by the court, he fails to qualify as such. Nonetheless the trust is not defeated by such a failure to give
bond.
948
Sec.8
949
Gisbornvs.Cavende,114US464
950
See3.Requisites,above,andtable
951
Nopersonsucceedingtoatrustasexecutororadministratorofaformertrusteeshallberequiredto
acceptsuchtrust(Sec.2)
208
may order suchconveyance to be made by the former trustee or his representatives, or by the
other remaining trustees, as may be necessary or proper to vest the trust estate in the new
trustee, either alone or jointly with the others.952
J. Escheat953
A proceeding whereby the real and personal property of a deceased person in the
Philippines, become the property of the state upon his death, without leaving any will or
legal heirs.
1. When to file
When a person dies intestate, seized of real or personal property in the Philippines,
leaving no heir or person by law entitled to the same, the Solicitor General or his
representative in behalf of the Republic of the Philippines, may file a petition in the RTC of
the province where the deceased last resided or in which he had estate, if he resided out of
the Philippines, setting forth the facts, and praying that the estate of the deceased be
declared escheated.954
When a petition for escheat does not state facts which entitle the petitioner to the
remedy prayed for, and even admitting them hypothetically, it is clear that there is no ground
for the court to proceed to the inquisition provided by law, an interested party should not be
disallowed from filing a motion to dismiss the petition which is untenable from all
standpoints. And when the motion to dismiss is entertained upon this ground, the petition
may be dismissed unconditionally and the petitioner is not entitled to be afforded an
opportunity to amend his petition.956
While the Rules do not in fact authorize the filing of a motion to dismiss the petition
presented forthat purpose, and the Rules permitting the interposition of a motion to dismiss
to the complaint and answer, respectively, are not applicable to special proceedings,
nevertheless, there is no reason of a procedural nature which prevents the filing of a motion
to dismiss based upon any of the grounds provided for by law for a motion to dismiss the
952
Sec.3
953
Rule91
954
Sec.1
955
CityofManilavs.ArchbishopofManila,36Phil.815
956
GoPocoGroceryvs.PacificBiscuitCo.,65Phil.443
209
complaint. In such a case, the motion to dismiss plays the role of a demurrer and the court
should resolve the legal questions raised therein.957
K. Guardianship958
(a) To have care and custody over the person of his ward, and/or the management
of his estate;961
(b) To pay the just debts of his ward out of the latters estate;962
(c) To bring or defend suits in behalf of the ward, and, with the approval of the
court, compound for debts due the ward and give discharges to the debtor;963
957
MunicipalCouncilofSanPedro,Laugnavs.ColegiodeSanJose,65Phil.318
958
Rules9297
959
BlacksLawDictionary,9thEd.
960
Rule96
A guardian is one who has the legal authority and duty to care for anothers person or property
especiallybecauseoftheothersinfancy,incapacityordisability.(BlacksLawDictionary,9thEd.).
Kindsofguardians:
(a)Accordingtoscopeorextent
1)Guardianofthepersononewhohasbeenlawfullyinvestedwiththecareofthepersonofminor
whosefatherisdead.Hisauthorityisderivedoutofthatoftheparent;
2)Guardianofthepropertythatappointedbythecourttohavethemanagementoftheestateofa
minororincompetentperson;
3)Generalguardiansthoseappointedbythecourttohavethecareandcustodyofthepersonand
ofallthepropertyoftheward.
(b)Accordingtoconstitution
1)Legalthosedeemedasguardianswithoutneedofacourtappointment;(Art.225,FC)
2)Guardianadlitemthoseappointedbycourtsofjusticetoprosecuteordefendaminor,insaneor
persondeclaredtobeincompetent,inanactionincourt;and
3) Judicial those who are appointed by the court in pursuance to law, as guardian for insane
persons,prodigals,minorheirsordeceasedwarveteransandotherincompetentpersons.
Qualificationsofguardians;
(a)Moralcharacter;
(b)Physical,mentalandpsychologicalcondition;
(c)Financialstatus;
(d)Relationshipoftrustwiththeminor;
(e)Availabilitytoexercisethepowersandduties ofaguardianforthe fullperiod ofthe
guardianship;
(f)Lackofconflictofinterestwiththeminor;and
(g)Abilitytomanagethepropertyoftheminor.(Sec.1)
961
Ibid.
962
Sec.2
210
(d) To manage the estate frugally and without waste, and apply the income and
profits to the comfortable and suitable maintenance of the ward and his family;964
(e) To sell or encumber the real estate of the ward upon being authorized to do
so;965
(f) To join in and assent to a partition of real or personal estate held by the ward
jointly or in common with others.966
(a) To file with the court complete inventory of the estate of the ward within three
(3) months;
(b) To faithfully execute the duties of his trust to manage and dispose of the estate
according to the Rules for the best interests of the ward, and to provide for the proper use,
custody, andeducation of the ward;
(c) To render a true account of all the estate, and of the management and
disposition of the same;
(d) To settle his accounts with the court and deliver over all the estate remaining in
his hands to the person entitled thereto;
The father and mother shall jointly exercise legal guardianship over the person and
property of their unemancipated common child without the necessity of a court
appointment. The Rule shall be suppletory to the provisions of the Family Code on
guardianship.
963
Sec.3
964
Sec.4
965
Ibid.
966
Sec.5
967
Sec.1;Sec.14,AM030205SC
968
AM030205SC
969
Groundsofpetition:
(a)Death,continuedabsence,orincapacityofhisparents;
(b)Suspension,deprivationorterminationofparentalauthority;
(c)Remarriageofhissurvivingparent,ifthelatterisfoundunsuitabletoexerciseparentalauthority;or
(d)Whenthebestinterestoftheminorsorequire.(Sec.4)
211
The petition may also be filed by the Secretary of DSWD and of the DOH in the
case of an insane minor who needs to be hospitalized.970
(a) The surviving grandparent and in case several grandparents survive, the court
shall select any of them taking into account all relevant considerations;
(b) The oldest brother or sister of the minor over 21 years of age, unless unfit or
disqualified;
(c) The actual custodian of the minor over 21 years of age, unless unfit or
disqualified; and
(d) Any other person, who, in the sound discretion of the court, would serve the
best interests of the minor.
(a) Any extrajudicial agreement which the parties may have bound themselves to
comply with respecting the rights of the minor to maintain direct contact with the non-
custodial parent on a regular basis, except when there is an existing threat or danger of
physical, mental, sexual or emotional violence which endangers the safety and best interests
of the minor;
(b) The desire and ability of one parent to foster an open and loving relationship
between the minor and the other parent;
(d) Any history of child or spousal abuse by the person seeking custody or who has
had any filial relationship with the minor, including anyone courting the parent;
(h) The most suitable physical, emotional, spiritual, psychological and educational
environmentfor the holistic development and growth of the minor; and
(i) The preference of the minor over 7 years of age and of sufficient discernment,
unless the parent chosen is unfit.972
970
Sec.1
971
Sec.6
212
The court shall order a social worker to conduct a case study of the minor and all the
prospectiveguardians and submit his report and recommendation to the court for its
guidance before the scheduled hearing.
L. Adoption973
A juridical act which creates between two persons a relationship similar to that which
results from legitimate paternity974and filiation.
Requisites:
Requisites:
a) Below 15 years of age; and
a) Below 18 years of age; and
b) Judicially declared available for b) Has been voluntarily or involuntarily
978 committed to the DSWD.979
adoption.
972
Sec.14,AMNo.030404SC
973
Rules99100,supersededbyAM02602SC
974
Prasnickvs.Republic,98Phil.669
975
Anadversarialproceedingisonehavingopposingparties,contested,asdistinguishedfromanexparte
application,oneofwhichthepartyseekingreliefhasgivenlegalwarningtotheotherpartyandafforded
thelatteranopportunitytocontestitexcludesanadoptionproceeding.
976
GovernedbyR.A.8552,theDomesticAdoptionActof1998;proceduregovernedbyAMNo.020602
SC,Aug.22,2002.
977
GovernedbyRA8043,theInterCountryAdoptionActof1995;proceduregovernedbytheAmended
ImplementingRulesandRegulationsonICAA.
978
Exceptions:
a)Legitimateson/daughterofonespousebytheotherspouse;
213
2) In possession of full civil capacity and 2) Has the capacity to act and assume all
legal rights; rights and responsibilities of parental
authority under Philippine laws;
3) Of good moral character;
3) Has undergone the appropriate
4) Has not been convicted of any counseling from an accredited counselor in
crime involving moral turpitude; country of domicile;
6) In a position to support and care for 5) Eligible to adopt under Philippine laws;
his/her children in keeping with the means
of the family; 6) In a position to provide the proper care
and support and to give the necessary moral
7) At least 16 years older than the values and example to all his children,
adoptee but this latter requirement may be including the child to be adopted;
waived if
7) Agrees to uphold the basic rights of the
(a) the adopter is the biological child as embodied under Philippine laws, the
parent of the adoptee; or UN Convention on Rights of the Child, and
to abide by the rules and regulations issued
(b) the adopter is the spouse of the to implement the provisions of the ICAA;
adoptees parent; and
8) Residing in a country with whom
8) Permanent resident of the Philippines. the Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and that
adoption is allowed in that country;
b)Illegitimateson/daughterbyaqualifiedadopter;
c)Personoflegalageif,priortotheadoptionsaidpersonhasbeenconsistentlyconsideredandtreated
bytheadopter/sashis/herownchildsinceminority.
979
inaccordancewithPD603
214
B. Aliens B. Aliens
1) His/her country has diplomatic relations 2) At least 16 years older than the child
with the Republic of the Philippines; to be adopted at the time of application
unless the adopter is the parent by nature of
2) His/her government allows the the child to be adopted or the spouse of such
adoptee to enter his/her country as his/her parent;
adopted son/daughter;
3) Has the capacity to act and assume all
3) Has been living in the Philippines for at rights and responsibilities of parental
least 3 continuous years prior to the filing of authority under his national laws;
the application for adoption and maintains
such residence until the adoption 4) Has undergone the appropriate
decree is entered; and counseling from an accredited counselor in
his/her country;
4) Has been certified by his/her
diplomatic or consular office or any
appropriate 5) Has not been convicted of a crime
government agency that he/she has the legal involving moral turpitude;
capacity to adopt in his/her country. This
requirement may be waived if 6) Eligible to adopt under his/her
national law;
(a) a former Filipino citizen seeks to
adopt a relative within the 4th degree of 7) In a position to provide the proper
consanguinity or affinity; care and support and to give the necessary
moral values and example to all his children,
(b) one seeks to adopt the legitimate including the child to be adopted;
son/daughter of his/her Filipino spouse;
8) Agrees to uphold the basic rights of
(c) one who is married to a Filipino the child as embodied under Philippine laws,
citizen and seeks to adopt a relative within the UN Convention on the Rights of the
the 4th degree of consanguinity or affinity Child, and to abide by the rules and
215
General rule: husband and wife shall jointly Rule: if the adopter is married, his/her
adopt; otherwise, the adoption shall not be spouse must jointly file for the adoption.
allowed.
Exceptions:
Procedure Procedure
In the Family Court of the province or city Either in (a) Family Court having jurisdiction
where the prospective parents reside. over the place where the child resides or may
be found, or (b) Inter-Country Adoption
Board (ICAB) through an intermediate
agency, whether governmental or an
authorized and accredited agency, in the
country of the prospective adoptive parents.
216
The petition shall not be set for hearing (a) if filed in the FC, court determines
without a case study report by a licensed sufficiency of petition in respect to form and
social worker. substance, after which, petition is transmitted
to ICAB;
a) Temporary parental authority is vested a) This process takes place outside of the
in prospective adopter; country and under the supervision of the
foreign adoption agency;
b) Period is at least 6 months, but may be
reduced by the court motu proprio or upon b) For a period of 6 months;
motion;
c) If unsuccessful, ICAB shall look for
c) If adopter is alien, the law mandatorily another prospective applicant. Repatriation
requires completion of the 6-month trial of the child is to be resorted only as a last
custody and may not be reduced, except if: resort;
217
a. Effects of adoption
(1) Transfer of parental authority except in cases where the biological parent is the
spouse of the adopter, the parental authority of the biological parents shall terminate and the
same shall be vested in the adopters.981
(2) Legitimacy the adoptee shall be considered the legitimate son/daughter of the
adopter(s) for all intents and purposes and as such is entitled to all the rights and obligations
provided by law to legitimate sons/daughters born to them without discrimination of any
kind.982
In legal and intestate succession, the adopter(s) and the adoptee shall have reciprocal
rights of succession without distinction from legitimate filiation.983
980
R.A.8552;AM020602SC
981
Sec.16
982
Sec.17
983
Sec.18
218
However, if the adoptee and his/her biological parent(s) had left a will, the
law on testamentary succession shall govern.984
Art. 18(3) of the Family Code and Sec. 18, Art. V of RA 8552 provide that the
adoptee remains an intestate heir of his/her biological parent.985
(4) Issuance of new certificate and first name and surname of adoptee
(a) The adoption decree shall state the name by which the child is to be
known.986 An amended certificate of birth shall be issued by the Civil Registry
attesting to the fact that the adoptee is the child of the adopter(s) by being registered
with his/her surname;987
(b) The original certificate of birth shall be stamped - cancelled with the
annotation of the issuance of an amended birth certificate in its place and shall be
sealed in the civil registry records. The new birth certificate to be issued to the
adoptee shall not bear any notation thatit is an amended issue;988
(c) All records, books, and papers relating to the adoption cases in the files
of the court, the DSWD, or any other agency or institution participating in the
adoption proceedings shall be kept strictly confidential and the court may order its
release under the following conditions only:
(2) the disclosure will be for the best interest of the adoptee; and
(3) the court may restrict the purposes for which it may be used.989
(a) Repeated physical and verbal maltreatment by the adopter(s) despite having
undergone counseling;
984
Sec.18
985
ObiterDictuminInre:IntheMatterofAdoptionofStephanieNatyAstorgaGarcia,454SCRA541
986
Sec.13
987
Sec.14
988
Ibid.
989
Sec.15
990
Sec.19
219
(1) Parental authority of the adoptees biological parent(s), if known, or the legal
custody of theDSWD shall be restored if the adoptee is still a minor or incapacitated;
(2) Reciprocal rights and obligations of the adopter(s) and the adoptee to each other
shall be extinguished;
(3) Cancellation of the amended certificate of birth of the adoptee and restoration of
his/her originalbirth certificate; and
(4) Succession rights shall revert to its status prior to adoption, but only as of the
date of judgment of judicial rescission. Vested rights acquired prior to judicial rescission shall
be respected.991
3. Inter-country Adoption992
a. when allowed
When the same shall prove beneficial to the childs best interests, and shall serve and
protect his/her fundamental rights.994
It is allowed when all the requirements and standards set forth under R.A. 8043 are
complied with.
An application to adopt a Filipino child shall be filed either with the Philippine
Regional Trial Court having jurisdiction over the child, or with the Board, through an
intermediate agency, whether governmental or an authorized and accredited agency, in the
country of the prospective adoptive parents, which application shall be in accordance with
the requirements as set forth in the implementing rules and regulations.995
Prescriptiveperiod:
(1)Ifincapacitatedwithinfive(5)yearsafterhereachestheageofmajority;
(2) If incompetent at the time of the adoption within five (5) years after recovery from such
incompetency(Sec.21,RuleonAdoption).
991
Sec.20
992
R.A.8043
993
Sec.3[a])
994
Sec.2
995
Sec.10
220
Best interests of the child means the totality of the circumstances and conditions as
are most congenial to the survival, protection, and feelings of security of the child and most
encouraging to his physical, psychological, and emotional development.
It also means the least detrimental available alternative for safeguarding the growth
and development of the child.996
In case of custody cases of minor children, the court after hearing and bearing in
mind the best interest of the minor, shall award the custody as will be for the minors best
interests.
A command directed to the person detaining another, requiring him to produce the
body of the person detained at a designated time and place, and to produce and to show
cause and to explain the reason for detention.998
The writ of habeas corpus shall extend to all cases of illegal confinement or detention
by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto.999
(a) That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
996
Sec.4[g],AM00407SC
997
Rule102
998
It isa writ whichhasbeenesteemedtobe thebest and only sufficient defense ofpersonal freedom
havingforitsobjectthespeedyreleasebyjudicialdecreeofpersonswhoareillegallyrestrainedoftheir
liberty,orillegallydetainedfromthecontrolofthosewhoareentitledtotheircustody(BallentinesLaw
Dictionary,2ndEd.;Navavs.Gatmaitan,90Phil.172)
Therestraintmustbeactual,effectiveandmaterial.Thepersonneednotactuallybeconfinedaslongas
freedomofactionislimited.(Moncupavs.Enrile,GRNo.61107,Apr.26,1983)
999
Sec.1
Thefunctionofthespecialproceedingofhabeascorpusistoinquireintothelegalityofonesdetention.
Inallpetitionsforhabeascorpus,thecourtmustinquireintoeveryphaseandaspectofthepetitioners
detentionfromthemomentpetitionerwastakenintocustodyuptothemomentthecourtpassesupon
the merits of the petition and only after such scrutiny can the court satisfy itself that the due process
clauseoftheConstitutionhasbeensatisfied.
Habeascorpusmaynotbeusedasameansofobtainingevidenceonthewhereaboutsofaperson,or
asameansoffindingoutwhohasspecificallyabductedorcausedthedisappearanceofacertainperson
(Martinezvs.Dir.Gen.Mendoza,G.R.153795,Aug.17,2006)
221
assumed appellation, and the person who is served with the writ shall be deemed the person
intended;
(a) Whether he has or has not the party in his custody or power, or under restraint;
(b) If he has the party in his custody or power, or under restraint, the authority and
the true and whole cause thereof, set forth at large, with a copy of the writ, order, execution,
or other process, if any, upon which the party is held;
(c) If the party is in his custody or power or is restrained by him, and is not
produced, particularly the nature and gravity of the sickness or infirmity of such party by
reason of which he cannot, without danger, be brought before the court or judge;
(d) If he has had the party in his custody or power, or under restraint, and has
transferred such custody or restraint to another, particularly to whom, at what time, for what
cause, and by what authority such transfer was made.1001
1000
Sec.3
1001
Sec.10
1002
LeeYickHonvs.CollectorofCustoms,41Phil.563
222
(b) For correcting errors in appreciation of facts or appreciation of law where the
trial court had no jurisdiction over the cause, over the person of the accused, and to impose
the penalty provided for by law, the mistake committed by the trial court, in the appreciation
of the facts and/or in the appreciation of the law cannot be corrected by habeas corpus;1004
(c) Once a person detained is duly charged in court, he may no longer file a petition
for habeas corpus. His remedy would be to quash the information or warrant.1005
(b) if the jurisdiction appears after the writ is allowed, the person shall not be
discharged by reason of any informality or defect in the process, judgment, or order; or
1003
Galvezvs.CA,237SCRA685
1004
Sottovs.DirectorofPrisons,May30,1962
1005
Rodriguezvs.JudgeBonifacio,Nov.26,2000
1006
Sec.4
223
Who may file petition: Who may file (in order): Who may file (in order):
By the party for whose relief a) Any member of the a) Any member of the
it is intended, or by some immediate family: spouse, immediate family: spouse,
person on his behalf. children and parents of the children and parents of the
aggrieved party; aggrieved party;
RTC, enforceable within its RTC, Sandiganbayan, CA, RTC, SC, CA,
area of jurisdiction. CA or SC; Writ is enforceable Sandiganbayan; Writ is also
SC, enforceable anywhere in anywhere in the Philippines. enforceable anywhere in the
the Philippines. Philippines.
Petitioner is exempted
to pay docket and other Indigent petitioner is
224
1007
Sec.3
225
1008
Sec.10
1010
Ageneraldenialoftheallegationsinthepetitionisnotallowed.
226
6) bring suspected
offenders before a
competent court.
a) Temporary Protection
Order
protected in a government
agency or by an accredited
person or private institution
capable of keeping and
securing their safety;
b) Inspection Order
with a lifetime of 5 days
which may be extended,
may be opposed on the
227
c) Production Order to
require respondents to
produce and permit
inspection, copying or
photographing of
documents, papers, books,
accounts, letters,
photographs, objects or
tangible things that contain
evidence.
To the SC under Rule 45,1009 To the SC under Rule 45, To the SC under Rule 45,
within 48 hours from notice within 5 days from notice of within 5 days from notice
of judgment. A writ of adverse judgment, to be of judgment or final order,
habeas corpus does not lie given the same priority as to be given the same
where petitioner has the habeas corpus cases. priority as habeas corpus and
remedy of appeal or certiorari amparo cases.
because it will not be
permitted to perform the
functions of a writ of error
or appeal for the purpose of
reviewing mere errors or
irregularities in the
proceedings of a court
having jurisdiction over the
1009
supra
228
By substantial evidence.
The Family Court has exclusive original jurisdiction to hear petitions for custody of
minors and the issuance of the writ of habeas corpus in relation to custody of minors. The
Court is tasked with the duty of promulgating special rules or procedure for the disposition
of family cases with the best interests of the minor as primary consideration, taking into
account the United Nations Convention on the Rights of the Child. It should be clarified
that the writ is issued by the Family Court only in relation to custody of minors.1012
An ordinary petition for habeas corpus should be filed in the regular Court. The issue
of child custody may be tackled by the Family Court without need of a separate petition for
custody being filed.
A motion to dismiss the petition is not allowed except on the ground of lack of
jurisdiction over the subject matter or over the parties. Any other ground that might warrant
the dismissal of the petition shall be raised as an affirmative defense in the answer.1013
Upon the filing of the verified answer or the expiration of the period to file it, the
court may order a social worker to make a case study of the minor and the parties and to
1011
AMNo.030404SC
1012
The Committee chose the phrase any person claiming custody as it is broad enough to cover the
following:
(a)theunlawfuldeprivationofthecustodyofaminor;or
(b)whichparentshallhavethecareandcustodyofaminor,whensuchparentisinthemidstofnullity,
annulmentorlegalseparationproceedings(Sec.2)
1013
Sec.6
229
submit a report and recommendation to the court at least three (3) days before the scheduled
pre-trial.1014
The hearings on custody of minors may, at the discretion of the court, be closed to
the public and the records of the case shall not be released to non-parties without its
approval.1015
Hold Departure Order The minor child subject of the petition shall not be brought
out of the country without prior order from the court while the petition is pending. The
court motu proprio or upon application under oath may issue ex parte a hold departure order
addressed to the BID or the DOJ a copy of the hold departure order within 24 hours from
its issuance and through the fastest available means of transmittal.1016
N. Writ of Amparo
1. Coverage;
2. Distinguish from habeas corpus and habeas data;
4. Who may file;
5. Contents of return;
6. Effects of failure to file return;
8. Procedure for hearing;
9. Institution of separate action;
10. Effect of filing of a criminal action;
11. Consolidation;
12. Interim reliefs available to petitioner and respondent;
13.Quantum of proof in application for issuance of writ of Amparo1017
Upon the filing of the petition, the court, A search warrant shall not issue except
justice or judge shall immediately order the upon probable cause in connection with one
issuance of the writ if on its face it ought to (1)specific offense to be determined
issue. The clerk of court shall issue the writ personally by the judge after examination
under the seal of the court; or in case of under oath or affirmation of the
urgent necessity, the justice or the judge may complainant and the witness he may
issue the writ in his or her own hand, and produce, and particularly describing the
may deputize any officer or person to serve place to be searched and the things to be
it. The writ shall also set the date and time seized, which may be anywhere in the
for summary hearing of the petition which Philippines.
1014
Sec.8
1015
Sec.21
1016
Sec.16
1017
Seetableabove
230
Defenses Not Pleaded Deemed Waived. - All defenses shall be raised in the return,
otherwise, they shall be deemed waived.
1. Scope of writ
2. Availability of writ
3. Distinguish from Habeas Corpus and Amparo
4. Contents of the petition
5. Contents of return
7. Consolidation
8. Effect of filing of a criminal action
9. Institution of separate action
10.Quantum of proof in application for issuance of writ of Amparo1019
(a) Where the respondent invokes the defense that the release of the data or
information in question shall compromise national security or state secrets, or
(b) when the data or information cannot be divulged to the public due to its nature
or privileged character.
1018
AMNo.08116SC
1019
Seetableabove
231
P. Change of Name
Petition should be filed in Petition filed with the city or Verified petition filed in the
the RTC where the petitioner municipal civil registrar, or RTC where the
resides with consul general for corresponding Civil Registry
citizens living abroad. is located.
Petition is filed by the Verified petition in the form By a person interested in any
person desiring to change his of affidavit is filed by any acts, event, order or decree.
name person having direct and
personal interest in the
correction.
Involves change of name Involves first name and Substantial and adversary if
only nickname change affects the civil
status, citizenship or
nationality of a party;
Summary if involves mere
clerical errors.
a) Name is
a) First name or Cancellation or correction
ridiculous, dishonorable or nickname is found to be of entries of:
extremely difficult to write or
ridiculous, tainted with
pronounce; dishonor or extremely (a) births;
difficult to write or
b) Change is a legal pronounce; (b) marriages;
consequence of legitimation
or adoption; b) The first name or (c) deaths;
nickname has been
c) Change will avoid habitually and continuous (d) legal separation;
confusion; used by petitioner publicly
known by that first name (e) judgments or annulments
1021
Reason:heisaninterestedpartyinprotectingtheintegrityofpublicdocuments.SolicitorGeneral
mustalsobenotifiedbyserviceofacopyofthepetition.
232
Order for hearing to be Petition shall be published at Order shall also be published
published once a week for least once a week for two (2) once a week for three (3)
three (3) consecutive weeks consecutive weeks in a consecutive weeks in a
in a newspaper of general newspaper of general newspaper of general
circulation in the province. circulation. Also to be posted circulation in the
in a conspicuous place province, and court shall
for ten (10)consecutive cause reasonable notice to
days. persons named in the
petition.
1020
Republicvs.Hernandez,68SCAD279;Republicvs.Avila,122SCRA483
1022
Sec.2
233
Requires judicial order Does not require judicial Directed or changed by the
order. city or municipal civil
registrar or consul-general
without judicial order.
Appeal may be availed of if In case denied by the city or Appeal may be availed of if
judgment or final order municipal civil registrar or judgment or final order
rendered affects substantial the consul general, rendered affects substantial
rights of person appealing petitioner may either appeal rights of person appealing,
the decision to the civil to the RTC or to the CA.
register general or file
appropriate petition with
proper court by petition for
review under Rule 43.
Q. Absentees1024
It also aims to have the court appoint the present spouse as administrator or
administratrix of the absent spouses properties, or for the separation of properties of the
spouses.
The following may file an application for the declaration of absence of a person:
1023
seeTable,above
1024
Rule107
Stagesofabsence:
(a)provisionalabsence
(b)declarationofabsence
(c)presumptionofdeath
234
When a person disappears from his domicile, his whereabouts being unknown, and
without having left an agent to administer his property, or the power conferred upon the
agent has expired, any interested party, relative or friend, may petition the RTC of the place
where the absentee resided before his disappearance for the appointment of a person to
represent him provisionally in all that may be necessary.1026
After the lapse of two (2) years from his disappearance and without any news about
the absentee or since the receipt of the last news, or of five (5) years in case the absentee has
left a person in charge of the administration of his property, the declaration of his absence
and appointment of a trustee or administrator may be applied for.1027
(b) Determines who are the lawful heirs of a deceased person, or the
distributive share of the estate to which such person is entitled;
(c) Allows or disallows any claim against the estate of a deceased person, or
any claim presented on behalf of the estate in offset to a claim against it;
1025
whomaypresentanauthenticcopyofthesame
1026
Sec.1
1027
Sec.2
1028
SeeTable,above
Thepetitionforchangeoffirstnamesornicknamesmaybeallowedwhensuchnamesornicknamesare
ridiculous, tainted with dishonor or extremely difficult to write or pronounce; or the new name or
nicknamehasbeenusedhabituallyandcontinuouslybypetitionerandhasbeenpubliclyknownbythat
firstnameornicknameinthecommunity;orthechangewillavoidconfusion(Sec.4,R.A.9048)
235
in the lower court of the rights of the party appealing, except that no appeal shall be
allowed from the appointment of a special administrator; and
(f) The final order or judgment rendered in the case affects the substantial
rights of the person appealing, unless it be an order granting or denying a motion for
a new trial or for reconsideration.1029
The reglementary period of thirty (30) days is provided for the perfection of appeals
in special proceedings.1030
Petition for review on certiorari In all cases where only questions of law are
raised or involved, the appeal shall be to the
SC by petition for review on certiorari in
accordance with Rule 45.1032
1029
Sec.1
1030
Appeals in special proceedings necessitate a record on appeal as the original record should remain
withthetrialcourt.
1031
supra
1032
Ibid.
236
1033
SeeReference
1034
Sec.2
237
V. Criminal Procedure
A. General Matters
Does not depend upon the consent or May be conferred by consent expressly or
omission of the parties to the action or any impliedly given, or it may, by objection, be
of them; prevented from attaching or being removed
after it is attached. Sometimes made to
depend, indirectly at least, on the partys
volition.1035
Nothing can change the jurisdiction of the Jurisdiction over the subject matter is
court over it or dictate when it shall be determined upon the allegations made in the
removed, insofar as it is a matter of complaint, irrespective of whether the
legislative enactment which none but the plaintiff is entitled or not, to recover upon
legislature may change. the claim asserted therein, a matter resolved
only after and as a result of the trial.1036
Jurisdiction over the subject matter isdetermined upon the allegations made in the
complaint, irrespective of whether the plaintiff is entitled or not, to recover upon the claim
asserted therein, a matter resolved only after and as a result of the trial.
(1) The offense is one which the court is by law authorized to take cognizance of;
(2) The offense must have been committed within its territorial jurisdiction; and
(3) The person charged with the offense must have been brought into its forum for
trial, forcibly or by warrant of arrest or upon his voluntary submission to the court.1038
1035
MRRvs.Atty.General
1036
Magayvs.Estiandan,69SCRA456
1037
Chocvs.Vera,64Phil.1066
1038
Arulavs.Espino
238
239
b) Other offenses or
felonies whether simple or
complexed with other
crimes committed in relation
to their office by the public
1039
(1)Officialsoftheexecutivebranchoccupyingthepositionofregionaldirectorandhigher(AKAGrade
27ofRA6758),including:
(a) Provincial governors, vicegovernors, members of the sangguniang panlalawigan, provincial
treasurers,assessors,engineersandotherprovincialdepartmentheads;
(b)Citymayors,vicemayors,membersofthesangguniangpanlungsod,citytreasurers,assessors,
engineersandothercitydepartmentheads;
(c)Officialsofthediplomaticserviceoccupyingthepositionofconsulandhigher;
Philippinearmyandairforcecolonels,navalcaptains,andallofficersofhigherrank;
(d) Officers of the PNP while occupying the position of provincial director and those holding the
rankofseniorsuperintendentorhigher;
(e)Cityandprovincialprosecutorsandtheirassistants,andofficialsandprosecutorsintheoffice
oftheOmbudsmanandspecialprosecutor;
(f)Presidents,directorsoftrustees,ormanagersofgovernmentownedorcontrolledcorporations,
stateuniversitiesoreducationalinstitutionsorfoundations.
(2)MembersofCongressandofficialsthereof(classifiedasGrade27andhigherundertheCPCAof
1989);
(3)MembersofthejudiciarywithoutprejudicetotheprovisionsoftheConstitution;
(4)ChairmenandmembersoftheConstitutionalCommissions,withoutprejudicetotheprovisionsof
theConstitution;and
(5)Allothernationalandlocalofficials(classifiedasGrade27andhigherundertheCPCAof1989).
240
c) All offenses1041committed
by public officers and
employees in relation to their
office, including those
1042
asamendedbyA.M.No.00503SCRe:AmendmentstotheRevisedRulesofCriminalProcedureto
governDeathPenaltyCasesResolutioneffectiveOctober15,2004
1040
supra,seefootnote1023.
1041
exceptviolationsofR.A.3019,R.A.1379andArts.210to212,RPC
241
Exceptions:
1043
Brockav.Enrile,192SCRA183(1990)
242
B. Prosecution of Offenses
For all other offenses, by filing the complaint or information directly with the
Municipal Trial Courts and Municipal Circuit Trial Courts, or the complaint with the office
of the prosecutor.
In Manila and other chartered cities, the complaint shall be filed with the office of
the prosecutor, unless otherwise provided in their charters.1045
However, in the Municipal Trial Courts or Municipal Circuit Trial Courts when the
prosecutor assigned thereto or to the case is not available, the offended party, any peace
officer, or public officer charged with the enforcement of the law violated may prosecute the
case. This authority shall cease upon actual intervention of the prosecutor or upon elevation
of the case to the Regional Trial Court.
The crimes of adultery and concubinage shall not be prosecuted except upon a
complaint filed by the offended spouse. The offended party cannot institute criminal
prosecution without including the guilty parties, if they are both alive, nor, in any case, if the
offended party has consented to the offense or pardoned the offenders.
1044
Except as provided in Section 7 of this Rule, a preliminary investigation is required to be conducted
beforethefiling ofacomplaintorinformation foran offensewherethepenaltyprescribedbylawisat
leastfour(4)years,two(2)monthsandone(1)daywithoutregardtothefine.(2ndpar.)
1045
Theinstitutionofthecriminalactionshallinterrupttheperiodofprescriptionoftheoffensecharged
unlessotherwiseprovidedinspeciallaws.(Sec.1)
Preliminaryinvestigationisrequiredforoffensespunishablebyatleast4years,2months,and1day,
unless the accused was lawfully arrested without a warrant, in which case, an inquest must have been
conducted(Secs.1and7,Rule112).
243
The offended party, even if a minor, has the right to initiate the prosecution of the
offenses of seduction, abduction and acts of lasciviousness independently of her parents,
grandparents or guardian, unless she is incompetent or incapable of doing so. Where the
offended party, who is a minor, fails to file the complaint, her parents, grandparents, or
guardian may file the same. The right to file the action granted to parents, grandparents or
guardian shall be exclusive of all other persons and shall be exercised successively in the
order herein provided, except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation of any of the
offenses mentioned above shall be brought except at the instance of and upon complaint
filed by the offended party.
Art. 344 of the Revised Penal Code refers to crimes which cannot be prosecuted de
oficio: These are private crimes, namely:
1046
Sec.5
1047
insuchstatedorder
1048
Art.360,RPC
1049
beforeacourtorjudgeforconsideration
244
(k) Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners.
4. Control of prosecution
Whenever a criminal case is prosecuted and the State is the offended party, the case
must always be prosecuted under the control and guidance of the State through the
government prosecutors.
Whenever there is acquittal or dismissal of the case and the private complainant
intends to question such acquittal or dismissal, the same must likewise be undertaken by the
State through the Solicitor General.
Only the Solicitor General may represent the People of the Philippines on appeal.
The private offended party or complainant may question such acquittal or dismissal or
appeal therefrom only insofar as the civil aspect is concerned, in the name of the petitioner
or appellant and not in the name of the People of the Philippines.1050
The prosecution determines the charges to be filed and how the legal and factual
elements in the case shall be utilized as components of the information. It is basically the
prosecutors function to determine what degree of complicity to the commission of a crime a
person should be charged with, whether as principal, accomplice or accessory.1051
If it states:
1050
MetropolitanBankandTrustCo.vs.VeridianoII,360SCRA359
The rule that the Solicitor General is the lawyer of the People in appellate courts admits an exception,
namely, that which is provided for in R.A. 8249, which states in part that in all cases elevated to the
Sandiganbayan and from the Sandiganbayan to the Supreme Court, the Office of the Ombudsman,
throughitsspecialprosecutor,shallrepresentthePeopleofthePhilippines,exceptincasesfiledpursuant
toEO1,2,14and14A,issuedin1986.
1051
Peoplevs.Pajo,348SCRA493
1052
If theprosecutorrefusesto include oneaccused, the remedyis mandamus.The procedureforstate
witnessallowsforinitialinclusionoftheaccusedintheinformation.
245
When an offense is committed by more than one (1) person, all of them shall be
included in the complaint or information.1053
6. Designation of Offense
The complaint or information shall state the designation of the offense given by the
statute, aver the acts or omissions constituting the offense, and specify its qualifying and
aggravating circumstances.
A complaint or information must charge only one offense, except when the law
prescribes a single punishment for various offenses.1056
1053
Sec.6
1054
Sec.8
1055
Sec.9
1056
Sec.13
Suchasincontinuingandcomplexcrimes.
246
However, any amendment before plea, which downgrades the nature of the offense
charged in or excludes any accused from the complaint or information, can be made only
upon motion by the prosecutor, with notice to the offended party and with leave of court.
The court shall state its reasons in resolving the motion and copies of its order shall be
furnished all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made in charging
the proper offense, the court shall dismiss the original complaint or information upon the
filing of a new one charging the proper offense in accordance with Section 19,1058Rule 119,
provided the accused wouldnot be placed in double jeopardy. The court may require the
witnesses to give bail for their appearance at the trial.1059
1057
Amendmentandsubstitutiondistinguished:
(a)Amendmentmayinvolveeitherformalorsubstantialchanges;substitutionnecessarilyinvolves
asubstantialchangefromtheoriginalcharge;
(b)Amendmentbeforepleahasbeenenteredcanbeeffectedwithoutleaveofcourt;substitutionof
informationmustbewithleaveofcourt,astheoriginalinformationhastobedismissed;
(c) Where the amendment is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in substitution of information, another
preliminaryinvestigationisentailedandtheaccusedhastopleadanewtothenewinformation;and
(d) An amended information refers to the same offense charged in the original information or to an
offense which necessarily includes or is necessarily included in the original charge; hence substantial
amendmentstotheinformationafterthepleahasbeentakencannotbemadeovertheobjectionofthe
accused,foriftheoriginalinformationwouldbewithdrawn,theaccusedcouldinvokedoublejeopardy.
Substitutionrequiresorpresupposesthatthenewinformationinvolvesdifferentoffensewhichdoesnot
includeorisnotnecessarilyincludedintheoriginalcharge,hencetheaccusedcannotclaimdouble
jeopardy.(Teehankeevs.Madayag,207SCRA685)
(e) In substitution under the second paragraph of Sec. 14, where the new information charges an
offense distinct and different from the one initially charged, due to mistake in charging the proper
offense,thereisneedforanewpreliminaryinvestigationandanotherarraignment.(Peoplevs.Jaralba,
226SCRA602)
1058
Whenmistakehasbeenmadeinchargingtheproperoffense.Whenitbecomesmanifestatanytime
beforejudgmentthatamistakehasbeenmadeinchargingtheproperoffenseandtheaccusedcannotbe
convictedoftheoffensechargedoranyotheroffensenecessarilyincludedtherein,theaccusedshallnot
bedischargedifthereappearsgoodcausetodetainhim.Insuchcase,thecourtshallcommittheaccused
toanswerfortheproperoffenseanddismisstheoriginalcaseuponthefilingoftheproperinformation.
1059
Sec.14
The test as to whether the rights of an accused are prejudiced by the amendment of a complaint or
informationiswhenadefenseunderthecomplaintorinformation,asitoriginallystood,wouldnolonger
be available after the amendment is made, and when any evidence the accused might have, would be
inapplicabletothecomplaintorinformation(Peoplevs.Montenegro,159SCRA236).
247
(a) In the court of the municipality or territory where the offense was committed or
where any of its essential ingredients occurred.
(b) Offense is committed in a train, aircraft, or other public or private vehicle in the
course of its trip- in the court of any municipality or territory where said train, aircraft
or other vehicle passed during its trip, including the place of its departure and arrival.
(c) Offense is committed on board a vessel in the course of its voyage - in the court
of the first port of entry or of any municipality or territory where the vessel passed during
such voyage, subject to the generally accepted principles of international law.
(d) Crimes committed outside of the Philippines but punishable under Article 21060
of the Revised Penal Code - in the court where the criminal action is first filed.1061
Where the civil action for recovery of civil liability is instituted in the criminal action
pursuant to Rule 111,1062 the offended party may intervene by counsel in the prosecution of
the offense.1063
1060
Applicationofitsprovisions.Exceptasprovidedinthetreatiesandlawsofpreferentialapplication,
the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its
atmosphere,itsinteriorwatersandmaritimezone,butalsooutsideofitsjurisdiction,againstthosewho:
1.ShouldcommitanoffensewhileonaPhilippineshiporairship
2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and
securitiesissuedbytheGovernmentofthePhilippineIslands;
3. Should be liable for acts connected with the introduction into these islands of the obligations and
securitiesmentionedinthepresidingnumber;
4.Whilebeingpublicofficersoremployees,shouldcommitanoffenseintheexerciseoftheirfunctions;
or
5.Shouldcommitanyofthecrimesagainstnationalsecurityandthelawofnations,definedinTitleOne
ofBookTwoofthisCode.
1061
Sec.15
1062
SeeReference
1063
Sec.16
248
The general rule is that the institution or filing of the criminal action includes the
institution therein of the civil action for recovery of civil liability arising from the offense
charged, except in the following cases:
In the cases provided for in Articles 32, 33, 34 and 21761066 of the Civil Code of the
Philippines, the independent civil action may be brought by the offended party. It shall
proceed independently of the criminal action and shall require only a preponderance of
evidence. In no case, however, may the offended party recover damages twice for the same
act or omission charged in the criminal action.1067
After the criminal action has been commenced, the separate civil action arising
therefrom cannot be instituted until final judgment has been entered in the criminal action.
If the criminal action is filed after the said civil action has already been instituted, the
latter shall be suspended in whatever stage it may be found before judgment on the merits.
The suspension shall last until final judgment is rendered in the criminal action.1068
1064
Rule111
1065
TheexceptiontothereservationrequirementisaclaimarisingoutofadishonoredcheckunderBP22,
wherenoreservationtofilesuchcivilactionseparatelyshallbeallowed,whichmeansthatthefilingof
the criminal action for violation of BP 22 shall be deemed to include the corresponding civil action and
thatunlessaseparatecivilactionhasbeenfiledbeforetheinstitutionofthecriminalaction,nosuchcivil
actioncanbeinstitutedafterthecriminalactionhasbeenfiledasthesamehasbeenincludedtherein.
Another instance where no reservation shall be allowed and where a civil action filed prior to the
criminalactionhastobetransferredtothesubsequentlyfiledcriminalactionforjointhearingisaclaim
arisingfromanoffensewhichiscognizablebytheSandiganbayan.
1066
SeeReference
1067
Sec.3
1068
Effectofcriminalactiononseparatecivilaction
(a)Ifcriminalactionhasbeencommencedearlierseparatecivilactioncannotbeinstituteduntilfinal
judgmenthasbeenenteredinthecriminalaction.
(b)Ifthecriminalactionisfiledaftertheseparatecivilactionhasalreadybeeninstituted
1)Civilactionsuspended,inwhateverstageitmaybefoundbeforejudgmentonthemerits,until
finaljudgmentisrenderedinthecriminalaction.
2)Civilactionmay,uponmotionoftheoffendedparty,beconsolidatedwiththecriminalactionin
thecourttryingthecriminalaction
249
The death of the accused after arraignment and during the pendency of the criminal
action shall extinguish the civil liability arising from the delict.
If the accused dies before arraignment, the case shall be dismissed without prejudice
to any civil action the offended party may file against the estate of the deceased.1069
However, the independent civil action instituted under Section 31070 of this Rule or
which thereafter is instituted to enforce liability arising from other sources of obligation may
be continued against the estate or legal representative of the accused after proper
substitution or against said estate, as the case may be. The heirs of the accused may be
substituted for the deceased without requiring the appointment of an executor or
administrator and the court may appoint a guardian ad litem for the minor heirs.1071
5. Prejudicial Question
One which arises in a case the resolution of which is a logical antecedent of the
issues involved therein, and the cognizance of which pertains to another tribunal.1072
A petition for suspension of the criminal action based upon the pendency of a
prejudicial question in a civil action may be filed in the office of the prosecutor or the court
conducting the preliminary investigation. When the criminal action has been filed in court
for trial, the petition to suspend shall be filed in the same criminal action at any time before
the prosecution rests.1073
3)Evidencealreadyadducedinthecivilactionshallbedeemedautomaticallyreproducedin
thecriminalaction
4)Withoutprejudicetotherightoftheprosecutiontocrossexaminethewitnessespresentedbythe
offendedpartyinthecriminalcaseandthepartiestopresentadditionalevidence.
c)Theconsolidatedcriminalandcivilactionsshallbetriedanddecidedjointly.
d) During the pendency of the criminal action, the running of prescription of the civil action which
cannotbeinstitutedseparatelyorwhoseproceedinghasbeensuspendedshallbetolled.
Theextinctionofthepenalactiondoesnotcarrywithitextinctionofthecivilaction.However,thecivil
actionbasedondelictmaybedeemedextinguishedifthereisafindinginafinaljudgmentinthecriminal
actionthattheactoromissionfromwhichthecivilliabilitymayarisedidnotexist.(Sec.2)
1069
Sec.4
1070
supra
1071
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice. A final judgment entered in favor of the
offendedpartyshallbeenforcedinthemannerespeciallyprovidedintheseRulesforprosecutingclaims
againsttheestateofthedeceased.
1072
AgpalosHandbookonCriminalProcedure;LuHaycovs.CA,Aug.26,1985
1073
Sec.6
GeneralRule:Criminalactiontakesprecedenceofcivilactions.
Exceptions:
(a)independentcivilactions
(b)prejudicialquestion
ElementsofPrejudicialquestion:
250
When the offended party seeks to enforce civil liability against the accused by way of
moral, nominal, temperate or exemplary damages without specifying the amount thereof in
the complaint or information, the filing fees therefor shall constitute a first lien on the
judgment awarding such damages. Where the amount of damages, other than actual, is
specified in the complaint or information, the corresponding filing fees shall be paid by the
offended party upon filing thereof in court. Except as otherwise provided in these Rules, no
filing fees shall be required for actual damages.1074
(a) the previously instituted civil action involves an issue similar or intimately related to the issue
raisedinthesubsequentcriminalaction,and
(b)theresolutionofsuchissuedetermineswhetherornotthecriminalactionmayproceed.(Sec.7)
AprejudicialquestioncanbeinterposedattheOfficeoftheProsecutor,but;
(a)Thequestioncanalsoberaisedincourt;
(b)Ifraised,thecourtshouldmerelysuspendthecriminalcase;
(c)Thecourtmustwaitforamotion,otherwise,thatisawaiver;
(d) The court cannot motu proprio suspend the criminal case (Yap vs. Paras, G.R. 101236, Jan. 30,
1992)
Aprejudicialquestiondoesnotconclusivelyresolvetheguiltorinnocenceoftheaccusedbutsimplytests
the sufficiency of the allegations in the information in order to sustain the further prosecution of the
criminalcase.Apartywhoraisesaprejudicialquestionisdeemedtohavehypotheticallyadmittedthatall
the elements of a crime have been adequately alleged in the information, considering that the
prosecution has not yet presented a single evidence on the indictment or may not yet have rested its
case.Achallengeoftheallegationsisineffectaquestiononthemeritsofthecriminalchargethrougha
noncriminalsuit(Nialvs.Badayog,G.R.133778,March14,2000)
Testindeterminingtheexistenceofaprejudicialquestion:
Itmustappearnotonlythatthecivilcaseinvolvesthesamefactsuponwhichthecriminalprosecution
isbased,butalsothattheresolutionoftheissuesinsaidcivilactionwouldbenecessarilydeterminative
oftheguiltorinnocenceoftheaccused(Yapvs.Paras,G.R.101236,Jan.30,1992)
1074
Sec.1
251
D. Preliminary Investigation1075
1. Nature of right
The right to preliminary investigation may be waived by the accused, either expressly
or impliedly. The posting of a bond by the accused constitutes such a waiver, such that even
if the warrant was irregularly issued, any infirmity attached to it is cured when the accused
submits himself to the jurisdiction of the court by applying for bail.1078
(a) To inquire concerning the commission of crime and the connection of accused
with it, in order that he may be informed of the nature and character of the crime charged
1075
Rule112
1076
Paderangavs.Drilon,196SCRA86
Whiletherighttopreliminaryinvestigationisstatutoryratherthanconstitutionalinitsfundament,since
it has in factbeenestablished by statute, it isa component part ofdue process in criminaljustice. The
righttohaveapreliminaryinvestigationconductedbeforebeingboundovertotrialofacriminaloffense
andhenceformallyatriskofincarcerationofsomeotherpenaltyisnotamereformalortechnicalright;it
isasubstantiverighttodenypetitionersclaimtoapreliminaryinvestigationwouldbetodeprivehimof
thefullmeasureofhisrighttodueprocess(Govs.CA,206SCRA138)
1077
Peoplevs.Carlos,78Phil.535
1078
InRe:LetterofFreddieManuel,54SCAD97,Aug.4,1994
Itisalsocuredbysubmittinghimselftoarraignment(Peoplevs.Hubilo,220SCRA389)
1079
Sec.1
The basic purpose of preliminary investigation is to determine whether a crime has been
committedandwhetherthereisprobablecausetobelievethattheaccusedisguiltythereof(Cruz,Jr.vs.
People,52SCAD516,June17,1994)
252
against him, and ifthere is probable cause for believing him guilty, that the state may take the
necessary steps to bring him to trial;
(b) To preserve the evidence and keep the witnesses within the control of the state;
and
(c) To determine the amount of bail, if the offense is bailable.1080
If the investigating prosecutor finds cause to hold the respondent for trial, he shall
prepare the resolution and information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has personally examined the
complainant and his witnesses; that there is reasonable ground to believe that a crime has
been committed and that the accused is probably guilty thereof; that the accused was
informed of the complaint and of the evidence submitted against him; and that he was given
an opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to
the provincial or city prosecutor or chief state prosecutor, or to the Ombudsman or his
deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.
1080
Arulavs.Espino,28SCRA540[1969]
1081
COMELEC,PCGG,Ombudsman
Onthebasisoftheevidencebeforehim,theinvestigatingofficermustdecidewhethertodismissthe
caseortofiletheinformationincourt.Thisinvolvesthedeterminationofprobablecause.Althoughthere
is no general formula or fixed rule for the determination of probable cause since the same must be
decided in the light of the conditions obtaining in given situations and its existence depends to a large
degreeuponthefindingoropinionofthemunicipaltrialjudgeorprosecutorconductingtheexamination,
suchafindingshouldnotdisregardthefactsbeforehimnorruncountertothecleardictatesofreasons
(Ortizvs.Palaypayon,234SCRA391)
The Court has maintained the policy of noninterference in the determination of the existence of
probablecause,providedthereisnograveabuseintheexerciseofsuchdiscretion.Theruleisbasednot
only upon respect for the investigatory and prosecutor powers of prosecutors upon practicality as well
(Rodrigo,Jr.vs.Sandiganbayan,303SCRA309)
1082
Sec.2,asamendedbyAM05826SC,Oct.3,2005
253
If, upon petition by a proper party or motu proprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city prosecutor or chief state prosecutor, he shall
direct the prosecutor concerned either to file the corresponding information without
conducting another preliminary investigation, or to dismiss or move for dismissal of the
complaint or information with notice to the parties. The same Rule shall apply in the
preliminary investigations conducted by the officers of the Office of the Ombudsman.1083
5. Review
A preliminary investigation falls under the authority of the state prosecutor who is
given by law the power to direct and control criminal actions. He is, however, subject to the
control of the Secretary of Justice, which the latter may exercise motu propio or upon petition
of the proper party. In reviewing resolutions of state prosecutors, the Secretary of
Justice is not precluded from considering errors, although unassigned, for the purpose of
determining whether there is probable cause for filing cases in court.1084
1083
Sec.4
1084
Joaquin,Jr.vs.Drilon,302SCRA225
1085
Sec.37,R.A.3783;Dimatulacvs.Villon,297SCRA679
254
Within ten (10) days from the filing of the When required pursuant to the second
complaint or information, the judge shall paragraph of Section 11088 of this Rule, the
personally evaluate the resolution of the preliminary investigation of cases falling
prosecutor and its supporting evidence. under the original jurisdiction of the
Metropolitan Trial Court, Municipal Trial
He may immediately dismiss the case if the Court in Cities, Municipal Trial Court, or
evidence on record clearly fails to establish Municipal Circuit Trial Court shall be
probable cause. conducted by the prosecutor. The procedure
for the issuance of a warrant of arrest by the
If he finds probable cause, he shall issue a judge shall be governed by paragraph (a)1089
warrant of arrest, or a commitment order if of this section.
the accused has already been arrested
pursuant to a warrant issued by the judge
who conducted the preliminary investigation
or when the complaint or information was
filed pursuant to section 61086 of this Rule.1087
1086
supra
1087
Incaseofdoubtontheexistenceofprobablecause,thejudgemay ordertheprosecutortopresent
additionalevidencewithinfive(5)daysfromnoticeandtheissuemustberesolvedbythecourtwithin
thirty(30)daysfromthefilingofthecomplaintorinformation.
Whenwarrantofarrestnotnecessary:
A warrant of arrest shall not issue if the accused is already under detention pursuant to a warrant
issuedbytheMunicipalTrialCourtinaccordancewithparagraph(b)ofthissection,orifthecomplaintor
information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only. The
courtshallthenproceedintheexerciseofitsoriginaljurisdiction(Sec.5,asamendedbyAM05826SC)
1088
supra
1089
seeBytheRegionalCourt,above
255
If filed with the prosecutor If filed with the Municipal Trial Court
If the complaint is filed directly with the If the complaint or information is filed with
prosecutor involving an offense punishable the Municipal Trial Court or Municipal
by imprisonment of less than four (4) years, Circuit Trial Court, for an offense covered
two (2) months and one (1) day, the by this section, the procedure in section
procedure outlined in Section 3(a)1090 of this 3(a)1091 of this Rule shall be observed.1092
Rule shall be observed. The prosecutor shall
act on the complaint based on the affidavits If within ten (10) days after the filing of the
and other supporting documents submitted complaint or information, the judge finds no
by the complainant within (10) days from its probable cause after personally evaluating
filing. the evidence or after personally examining in
writing and under oath the complainant and
his witnesses in the form of searching
questions and answers, he shall dismiss the
same. He may, however, require the
submission of additional evidence, within ten
(10) days from notice, to determine further
the existence of probable cause.
1090
Thecomplaintshallstatetheaddressoftherespondentandshallbeaccompaniedbytheaffidavitsof
thecomplainantand hiswitnesses,as well as othersupporting documentsto establish probable cause.
Theyshallbeinsuchnumberofcopiesastherearerespondents,plustwo(2)copiesfortheofficialfile.
Theaffidavitsshallbesubscribedandsworntobeforeanyprosecutororgovernmentofficialauthorized
to administer oath, or, in their absence or unavailability, before a notary public, each of whom must
certifythathepersonallyexaminedtheaffiantsandthatheissatisfiedthattheyvoluntarilyexecutedand
understoodtheiraffidavits.
1091
supra
1092
Sec.8
256
However, if the judge is satisfied that there is no necessity for placing the accused
under custody, he may issue summons instead of a warrant of arrest.1093
One remedy is to hold in abeyance the proceedings and order the prosecutor to hold
preliminary investigation.1094
If the case has been conducted, the accused may within five (5) days from the time
he learns of its filing ask for a preliminary investigation.1095 The five- day period to file the
motion for preliminary investigation is mandatory, and an accused is entitled to ask for
preliminary investigation by filing the motion within the said period.1096
9. Inquest
E. Arrest1098
The taking of a person into custody in order that he may be bound to answer for the
commission of an offense.1099
1093
Ibid.
1094
Pilapilvs.Sandiganbayan,April7,1993
1095
Sec.7,lastpar.
1096
The failure to file the motion within the fiveday period amounts to a waiver of the right to ask for
preliminaryinvestigation.Apartfromsuchwaiver,postingbailwithoutpreviouslyorsimultaneously
demandingforapreliminaryinvestigationjustifiesdenial ofthemotionforinvestigation (Peoplevs. CA,
242SCRA645)
1097
Twelve(12)hours,forcrimesoroffensespunishablebylightpenalties,ortheirequivalent;
Eighteen(18)hours,forcrimesoroffensespunishablebycorrectionalpenalties,ortheirequivalent
Thirtysix (36) hours, for crimes, or offenses punishable by afflictive or capital penalties, or their
equivalent
1098
Rule113
1099
Sec.1
1100
Sec.2
257
(a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
(c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or is temporarily confined while
his case is pending, or has escaped while being transferred from one confinement to another.
In cases falling under paragraphs (a) and (b) above, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail and shall be
proceeded against in accordance with Section 71101 of Rule 112.1102
3. Method of arrest
The officer shall inform the person to be arrested of the cause of the arrest and the
fact that a warrant has been issued for his arrest, except when he flees or forcibly resists
before the officer has opportunity to so inform him, or when the giving of such information
will imperil the arrest. The officer need not have the warrant in his possession at the time of
the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown
to him as soon as practicable.1103
1101
When a person is lawfully arrested without a warrant involving an offense which requires a
preliminaryinvestigation,thecomplaintorinformationmaybefiledbyaprosecutorwithoutneedofsuch
investigationprovidedaninquesthasbeenconductedinaccordancewithexistingrules.Intheabsenceor
unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a peace
officerdirectlywiththepropercourtonthebasisoftheaffidavitoftheoffendedpartyorarrestingofficer
orperson.
Before the complaint or information is filed, the person arrested may ask for a preliminary
investigationinaccordancewiththisRule,buthemustsignawaiveroftheprovisionofArticle125ofthe
Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may
applyforbailandtheinvestigationmustbeterminatedwithinfifteen(15)daysfromitsinception.
After the filing of the complaint or information in court without a preliminary investigation, the
accusedmay,withinfive(5)daysfromthetimehelearnsofitsfiling,askforapreliminaryinvestigation
withthesamerighttoadduceevidenceinhisdefenseasprovidedinthisRule.
1102
Sec.5
1103
Sec.7
258
The officer shall inform the person to be arrested of his authority and the cause of
the arrest, unless the latter is either engaged in the commission of an offense, is pursued
immediately after its commission, has escaped, flees or forcibly resists before the officer has
opportunity to so inform him, or when the giving of such information will imperil the
arrest.1104
c. by private person
A private person shall inform the person to be arrested of the intention to arrest him
and cause of the arrest, unless the latter is either engaged in the commission of an offense, is
pursued immediately after its commission, or has escaped, flees or forcibly resists before the
person making the arrest has opportunity to so inform him, or when the giving of such
information will imperil the arrest.1105
1) The judge may order the prosecutor to present additional evidence within
5 days from notice; and
2) The issue must be resolved by the court within 30 days from the filing of
the complaint of information.
1104
Sec.8
1105
Sec.9
1106
underSec.5,Rule112
Requisitesforissuingsearchwarrant:
(a)Itmustbeissueduponprobablecauseinconnectionwithonespecificoffense;
(b) The probable cause must be determined by the judge himself and not by the applicant or any
otherperson;
(c)Inthedeterminationofprobablecause,thejudgemustexamineunder oathoraffirmation,the
complainantandthewitnesshemayproduce;and
(d)Thewarrantissuedmustparticularlydescribetheplacetobesearchedandthethingstobeseized
whichmaybeanywhereinthePhilippines.(underSec.4,Rule126)
259
It is the judge alone who determines the probable cause for the issuance of warrant
of arrest. It is not for the provincial fiscal or prosecutor to ascertain.1107
Probable cause to hold a person for trial refers to the finding of the investigating
prosecutor after the conduct of a preliminary investigation, that there is sufficient ground to
hold a well-founded belief that a crime has been committed and that the respondent is
probably guilty thereof and should be held for trial. Based on such finding, the investigating
prosecutor files the corresponding complaint or information in the competent court against
the accused.1108
The determination by the judge of probable cause begins only after the prosecutor
has filed the information in court and the latters determination of probable cause is for the
purpose of issuing an arrest warrant against the accused, which is judicial function.1109
1107
Peoplevs.Inting,187SCRA788
1108
The determination by the prosecutor of probable cause is for the purpose of either filing an
informationincourtordismissingthechargesagainsttherespondent,whichisanexecutivefunction.
1109
Peoplevs.CA,301SCRA475
Thedeterminationofprobablecausetoissueawarrantofarrestisajudicialfunction.Ajudgecannotbe
compelledtoissueawarrantofarrestifheorshebelieveshonestlythatthereisnoprobablecausefor
doingso(Peoplevs.CA,102SCAD375)
260
F. Bail1110
1. Nature
Bail is the security given for the release of a person in custody of the law, furnished
by him or a bondsman, to guarantee his appearance before any court as required under the
conditions hereinafter specified. Bail may be given in the form of corporate surety, property
bond, cash deposit, or recognizance.1111
All persons, except those charged with offenses punishable by reclusion perpetua when
evidence of guilt is strong, shall before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law. The right to bail shall not be impaired
even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be
required.1112
The person seeking provisional release need not wait for a formal complaint or
information to be filed against him as it is available to all persons where the offense is
bailable, so long as the applicant is in the custody of the law.1113
As a matter of right
(a) before or after conviction by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial Court, and
1110
Rule114
1111
Sec.1
Bail is the security required by the court and given by the accused to ensure that the accused appear
beforethepropercourtatthescheduledtimeandplacetoanswerthechargesbroughtagainsthim.Itis
awarded to the accused to honor the presumption of innocence until his guilt is proven beyond
reasonabledoubt,andtoenablehimtopreparehisdefensewithoutbeingsubjecttopunishmentpriorto
conviction (Cortes vs. Catral, 279 SCRA 1) Its main purpose is to relieve an accused from the rigors of
imprisonmentuntilhisconvictionandsecurehisappearanceatthetrial(Paderangavs.CA,247SCRA741)
Kindsofbail:
(a)Corporatebondoneissuedbyacorporationlicensedtoprovidebailsubscribedjointlybythe
accusedandanofficerdulyauthorizedbyitsboardofdirectors(Sec.10)
(b)Propertybondanundertakingconstitutedasalienontherealpropertygivenassecurityfor
theamountofthebond(Sec.14).
(c)Recognizanceanobligationofrecordenteredintousuallybytheresponsiblemembersofthe
community before some court or magistrate duly authorized to take it, with the condition to do some
particular act, the most usual act being to assure the appearance of the accused for trial (People vs.
Abner,87Phil.566)
(d)Cashdepositthemoneydepositedbytheaccusedoranypersonactingonhisbehalf,withthe
nearestcollectorofinternalrevenue,orprovincial,cityormunicipaltreasurer.Consideredasbail,itmay
beappliedtothepaymentofanyfeesandcosts,andtheexcess,ifany,shallbereturnedtotheaccused
ortowhoevermadethedeposit(Sec.14)
1112
Sec.13,Art.III,TheConstitution
1113
Ibid.
261
(b) before conviction by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment.1114
Exceptions:
(a) when a person is charged with a capital offense when the evidence of guilt is
strong, or
(b) when the offense for which he is charged is punishable by reclusion perpetua.1115
Upon conviction by the Regional Trial Court of an offense not punishable by death,
reclusion perpetua, or life imprisonment.1116
1114
Sec.4
1115
The exception to this rule, however, is even if a person is charged with a capital offense where the
evidenceofguiltisstrong,iftheaccusedhasfailinghealth,hence,forhumanitarianreasons,hemaybe
admittedtobail,butthatisdiscretionaryonthepartofthecourt(DeLaRamosvs.PeoplesCourt,77Phil.
461Catiisvs.CA,487SCRA71)
1116
Wherethegrantofbailisamatterofdiscretion,ortheaccusedseekstobereleasedonrecognizance,
the application may only be filed in the court where the case is pending, whether on preliminary
investigation,trial,oronappeal(Sec.17[a])
The application for bail may be filed and acted upon by the trial court despite the filing of a notice of
appeal,providedithasnottransmittedtheoriginalrecordtotheappellatecourt.
However,ifthedecisionofthetrialcourtconvictingtheaccusedchangedthenatureoftheoffense
fromnonbailabletobailable,theapplicationforbailcanonlybefiledwithandresolvedbytheappellate
court.
Shouldthecourtgranttheapplication,theaccusedmaybeallowedtocontinueonprovisionalliberty
duringthependencyoftheappealunderthesamebailsubjecttotheconsentofthebondsman.
Ifthepenaltyimposedbythetrialcourtisimprisonmentexceedingsix(6)years,theaccusedshallbe
deniedbail,orhisbailshallbecancelleduponashowingbytheprosecution,withnoticetotheaccused,
ofthefollowingorothersimilarcircumstances:
(a) That he is a recidivist, quasirecidivist, or habitual delinquent, or has committed the crime
aggravatedbythecircumstanceofreiteration;
(b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditionsofhisbailwithoutvalidjustification;
(c)Thathecommittedtheoffensewhileunderprobation,parole,orunderconditionalpardon;
(d)Thatthecircumstancesofhiscaseindicatetheprobabilityofflightifreleasedonbail;or
(e)Thatthereisundueriskthathemaycommitanothercrimeduringthependencyoftheappeal.The
appellatecourtmay,motupropriooronmotionofanyparty,reviewtheresolutionoftheRegionalTrial
Courtafternoticetotheadversepartyineithercase(Sec.5,Rule114)
262
Does not only involve the right of the accused to temporary liberty, but likewise the
right of the State to protect the people and the peace of the community from dangerous
elements. Accordingly, the prosecution must be given ample opportunity to show that the
evidence of guilt is strong, because, by the very nature of deciding applications for bail, it is
on the basis of such evidence that judicial discretion is exercised in determining whether the
evidence of guilt is strong is a matter of judicial discretion. Though not absolute nor beyond
control, the discretion is within reasonable bounds.1118
1117
Ahearinginanapplicationforbailisabsolutelyindispensablebeforeajudgecanproperlydetermine
whethertheprosecutionsevidenceisweakorstrong.Inreceivingevidenceonbail,whileacourtisnot
requiredtotrythemeritsofthecase,hemustneverthelessconductasummaryhearingwhichissuch
brief and speedy method of receiving and considering the evidence of guilt as is practicable and
consistentwiththepurposeofthehearingwhichistodeterminetheweightoftheevidenceforpurposes
ofthebail(Inre:complaintagainstJudgeElma,AMRTJ941183,Feb.8,1994)
1118
Peoplevs.Antona,GR137681,Jan.31,2002
Ajudgeshouldnothearapetitionforbailincapitaloffensesonthesamedaythatthepetitionwasfiled.
He should give the prosecution a reasonable time within which to oppose the same. Neither is he
supposedtograntbailsolelyonthebeliefthattheaccusedwillnotfleeduringthependencyofthecase
byreasonofthefactthathehadevenvoluntarilysurrenderedtotheauthorities.Voluntarysurrenderis
merely a mitigating circumstance in decreasing the penalty that may eventually be imposed upon the
accusedincase ofconviction but is not a ground forgrantingbailto an accusedcharged with acapital
offense(Sulevs.JudgeBitgeng,60SCAD341,April18,1995)
1119
Sec.9
263
After the accused is admitted to bail, the court may, upon good cause, either increase
or reduce its amount.1121
When the presence of the accused is required by the court or these Rules, his
bondsmen shall be notified to produce him before the court on a given date and time.
If the accused fails to appear in person as required, his bail shall be declared forfeited
and the bondsmen given thirty (30) days within which to produce their principal and to
show cause why no judgment should be rendered against them for the amount of their bail.
(a) produce the body of their principal or give the reason for his non-production;
and
(b) explain why the accused did not appear before the court when first required to
do so.
Failing in these two requisites, a judgment shall be rendered against the bondsmen,
jointly and severally, for the amount of the bail. The court shall not reduce or otherwise
mitigate the liability of the bondsmen, unless the accused has been surrendered or is
acquitted.1122
Upon application of the bondsmen, with due notice to the prosecutor, the bail may
be cancelled upon surrender of the accused or proof of his death. The bail shall be deemed
1120
When a person has been in custody for a period equal to or more than the possible maximum
imprisonmentprescribedfortheoffensecharged,heshallbereleasedimmediately,withoutprejudiceto
thecontinuationofthetrialortheproceedingsonappeal.Ifthemaximumpenaltytowhichtheaccused
maybesentencedisdestierro,heshallbereleasedafterthirty(30)daysofpreventiveimprisonment.
A person in custody for a period equal to or more than the minimum of the principal penalty
prescribed for the offense charged, without application of the Indeterminate Sentence Law or any
modifyingcircumstance,shallbereleasedonareducedbailoronhisownrecognizance,atthediscretion
ofthecourt(Sec.16)
1121
Whenincreased,theaccusedmaybecommittedtocustodyifhedoesnotgivebailintheincreased
amountwithinareasonableperiod.Anaccusedheldtoansweracriminalcharge,whoisreleasedwithout
bail upon filing of the complaint or information, may, at any subsequent stage of the proceedings
wheneverastrongshowingofguiltappearstothecourt,berequiredtogivebailintheamountfixed,or
inlieuthereof,committedtocustody.(Sec.20)
1122
Sec.21
264
automatically cancelled upon acquittal of the accused, dismissal of the case, or execution of
the judgment of conviction. In all instances, the cancellation shall be without prejudice to
any liability on the bail.1123
The posting of the bail does not constitute a waiver of any question on the
irregularity attending the arrest of person. He can still question the same before arraignment,
otherwise, the right to question it is deemed waived.1124
An application for or admission to bail shall not bar the accused from challenging
the validity of his arrest or the legality of the warrant issued therefor, or from assailing the
regularity or questioning the absence of a preliminary investigation of the charge against him,
provided that he raises them before entering his plea.1125
The authority to issue hold departure orders is limited to the RTCs in criminal cases
within their exclusive jurisdiction.1126
1123
Sec.22
1124
It was also said that posting bail is deemed to be a forfeiture of a habeas corpus petition which
becomesmootandacademic(Arribavs.People`07SCRA191;Bagcalvs.Villaroza,120SCRA525)
Thearraignmentofanaccusedisnotaprerequisitetotheconductofhearingsonhispetitionforbail.
A personis allowed topetition forbailas soonas he is deprived of hisliberty by virtueofhisarrest or
voluntarysurrender(Mendozavs.CFIofQuezon,51SCAD369)
Anaccusedneednotwaitforhisarraignmentbeforefilingapetitionforbail.
Incaseswhereitisauthorized,bailshouldbegrantedbeforearraignment,otherwisetheaccusedmay
beprecludedfromfilingamotiontoquash.Thispronouncementshouldbeunderstoodinthelightof
thefactthattheaccusedinsaidcasefiledapetitionforbailaswellasamotiontoquashtheinformations
filedagainsthim(Lavidesvs.CA,324SCRA321)
Itwasexplainedthattoconditionthegrantofbailtoanaccusedonhisarraignmentwouldbetoplace
himinapositionwherehehastochoosebetween:
(1)filingamotiontoquashandthusdelayhisreleaseonbailbecauseuntilhismotiontoquashcanbe
resolved,hisarraignmentcannotbeheld;and
(2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be
releasedonbail.Thiswouldunderminehisconstitutionalrightnottobeputontrialexceptupona
validcomplaintorinformationsufficienttochargehimwithacrimeandhisrighttobail.Itistherefore
notnecessarythatanaccusedbefirstarraignedbeforetheconductofhearingsonhisapplicationforbail.
Forwhenbailisamatterofright,anaccusedmayapplyforandbegrantedbailevenpriortoarraignment.
(Serapiovs.Sandiganbayan,G.R.Nos.14846869,149116,Jan.28,2003)
1125
Thecourtshallresolvethematterasearlyaspracticablebutnotlaterthanthestartofthetrialofthe
case(Sec.26).
1126
SCCir.No.3997datedJune19,1997
1127
Hugglandvs.Lantin,AMMTJ981153,Feb.29,2000
265
A court has the power to prohibit a person admitted to bail from leaving the
Philippines. This is a necessary consequence of the nature and function of a bail bond.
Where it appears that the accused had the propensity to evade or disobey lawful orders, the
issuance of a hold departure order is warranted.1128
(a) To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b) To be informed of the nature and cause of the accusation against him.
(c) To be present and defend in person and by counsel at every stage of the
proceedings, from arraignment to promulgation of the judgment.1130
(d) To testify as a witness in his own behalf but subject to cross-examination on
matters covered by direct examination. His silence shall not in any manner prejudice him;
(e) To be exempt from being compelled to be a witness against himself.
(f) To confront and cross-examine the witnesses against him at the trial.1131
(g) To have compulsory process issued to secure the attendance of witnesses and
production of other evidence in his behalf.
(h) To have speedy, impartial and public trial.
(i) To appeal in all cases allowed and in the manner prescribed by law.1132
1128
Santosvs.CA,116SCAD575,Dec.3,1999
The fact that the accused surreptitiously left for Hongkong, after getting a clearance for purposes of
leavingthecountrybutwithoutpermissionofthetrialcourt,andthereaftercouldnotreturnfortrialas
shewasimprisonedinHongkongforacriminaloffense,doesnotrelievethebondsmanofliability.
1129
Rule115
1130
Theaccusedmay,however,waivehispresenceatthetrialpursuanttothestipulationssetforthinhis
bail,unlesshispresenceisspecificallyorderedbythecourtforpurposesofidentification.Theabsenceof
theaccusedwithoutanyjustifiablecauseatthetrialofwhichhehadnoticeshallbeconsideredawaiver
ofhisrighttobepresentthereat.Whenanaccusedundercustodyescapes,heshallbedeemedtohave
waived his right to be present on all subsequent trial dates until custody over him is regained. Upon
motion,theaccusedmaybeallowedtodefendhimselfinpersonwhenitsufficientlyappearstothecourt
thathecanproperlyprotecthisrightswithouttheassistanceofcounsel.
1131
Eitherpartymayutilizeaspartofitsevidencethetestimonyofawitnesswhoisdeceased,outofor
cannotwithduediligencebefoundinthePhilippines,unavailable,orotherwiseunabletotestify,givenin
anothercaseorproceeding,judicialoradministrative,involvingthesamepartiesandsubjectmatter,the
adversepartyhavingtheopportunitytocrossexaminehim.
1132
Sec.1
266
1133
Custodial investigation involves any questioning initiated by law enforcement officers after a person
hasbeentakenintocustodyotherwisedeprivedofhisfreedomofactioninanysignificantway.Theright
to custodial investigation begins only when the investigation is no longer a general inquiry into an
unsolved crime but has begun to focus on a particular suspect, the suspect has been taken into police
custody, the police carry out a process of interrogations that lends itself to eliciting incriminating
statements.Itshouldbenotedhowever,thatalthoughthescopeoftheconstitutionalrightislimitedto
the situation in Escobedo and Marra, RA 7438 has extended the guarantee to situations in which an
individual has not been formally arrested but has merely been invited for questioning (People vs.
Dumantay,G.R.130612,May11,1999;Peoplevs.Principe,G.R.135862,May2,2002).
TherightsofanaccusedpersonunderincustodyinvestigationareexpresslyenumeratedinSec.12,
Art.IIIoftheConstitution,viz:
(a) Any person under investigation for the commission of an offense shall have the right to be
informedofhisrightstoremainsilentandtohavecompetentandindependentcounselpreferablyofhis
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rightscannotbewaivedexceptinwritingandinthepresenceofcounsel;
(b) Notorture,force,violence,intimidation oranyothermeans whichvitiatethefreewillshallbe
usedagainst him.Secretdetention places, solitary,incommunicado, orother similarformsofdetention
areprohibited;
(c)AnyconfessionoradmissioninviolationofthisorSec.17hereofshallbeinadmissibleinevidence
againsthim;
(d) The law shall provide for penal and civil sanctions for violation of this section as well as
compensationtoaidrehabilitationofvictimsoftortureorsimilarpractice,andtheirfamilies.
1134
underSec.12(1)
1135
Undertherightagainstselfincrimination,onlyanaccusedhastheabsoluterighttoremainsilent(Sec.
17).Apersonwhoisnotanaccusedmayassumethestanceofsilenceonlywhenaskedanincriminatory
question.
A person under investigation has the right to refuse to answer any question (Sec. 12). His silence,
moreover,maynotbeusedagainsthim(Peoplevs.AlegreandGordoncillo,94SCRA109)
1136
Exampleofthosewhoarenotimpartialcounsel:
(1) Special counsel, private or public prosecutor, counsel of the police, or a municipal attorney whose
interestisadversetothatoftheaccused;
(2)amayor,unlesstheaccusedapproacheshimascounselororadviser;
(3)abarangaycaptain;
(4)anyotherwhoseinterestmaybeadversetothatoftheaccused(Peoplevs.Tomaquin,GR133188,July
23,2004);
1137
Therightguaranteedhereismorethanwhatisshownintelevisionshowswherethepoliceroutinely
reads out the rights from a note card; he must also explain their effects in practical terms (People vs.
Rojas,147SCRA169)Shortofthis,thereisadenialoftheright,asitcannotthentrulybesaidthatthe
personhasbeeninformedofhisrights(Peoplevs.Nicandro,141SCRA289)
267
The following are the rights of persons arrested, detained or under custodial
investigation:1138
(a) Any person arrested, detained or under custodial investigation shall at all times
be assisted by counsel;
(b) Any public officer or employee, or anyone acting under his order or in his place,
who arrests, detains or investigates any person for the commission of an offense shall inform
the latter, in a language known to and understood by him, of his right to remain silent and to
have competent and independent counsel, preferably of his own choice, who shall at all
times be allowed to confer privately with the person arrested, detained or under custodial
investigation. If such person cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the investigating officer;
(c) The custodial investigation report shall be reduced to writing by the investigating
officer, provided that before such report is signed, or thumbmarked if the person arrested or
detained does not know how to read and write, it shall be read and adequately explained to
him by his counsel or by the assisting counsel provided by the investigating officer in the
language or dialect known to such arrested or detained person, otherwise, such investigation
report shall be null and void and of no effect whatsoever;
(e) Any waiver by person arrested or detained under the provisions of Art. 1251139 of
the Revised Penal Code or under custodial investigation, shall be in writing signed by such
person in the presence of his counsel; otherwise, such waiver shall be null and void and of
no effect;
(f) Any person arrested or detained or under custodial investigation shall be allowed
visits by his or conferences with any member of his immediate family, or any medical doctor
or priest or religious minister chosen by him or by his counsel, or by any national NGO duly
accredited by the Office of the President. The persons immediate family shall include his or
her spouse, fianc or fiance, parent or child, brother or sister, grandparent or grandchild,
uncle or aunt, nephew or niece and guardian or ward.
1138
UnderR.A.7834
1139
supra
268
Arraignment and plea must appear either in the record of the case, in the minutes of
the courts proceedings or in the judgment itself 1143 or in the transcript of stenographic
notes.1144 Failure to enter of record the fact of arraignment and plea does not affect the
validity of the court proceedings. It is failure to arraign the accused which is fatal.
(a) Reading in open court by the judge or clerk of the complaint or information in
the language or dialect known to the accused;
(b) Asking the accused whether he pleads guilty or not guilty; and
(c) Furnishing the accused a copy of the complaint or information with the list of
witnesses.1145
1140
Rule116
1141
BlacksLawDictionary,9thEd.
1142
Lumanlawvs.Peralta,482SCRA396
Somerulesonarraignment:
a)Trialinabsentiaisallowedonlyafterarraignment;
b)Judgmentisgenerallyvoidiftheaccusedhasnotbeenarraigned;
c)Therecanbenoarraignmentinabsentia;
d) If the accused went to trial without arraignment, but his counsel had the opportunity to cross
examinethewitnessesoftheprosecutionandafterprosecution,hewasarraigned,thedefectwascured
(Peoplevs.Atienza,86Phil.576)
Whentheaccusedisunderpreventivedetention,hiscaseshallberaffledanditsrecordstransmittedto
the judge to whom the case was raffled within three (3) days from the filing of the information or
complaint.Theaccusedshallbearraignedwithinten(10)daysfromthedateoftheraffle.Thepretrial
conferenceofhiscaseshallbeheldwithinten(10)daysafterarraignment.
1143
Peoplevs.Cariaga,64Phil.390
1144
Camomotvs.Senining,64SCRA267
1145
The accused must be present at the arraignment and must personally enter his plea. He must be
arraignedbeforethecourtwherethecomplaintorinformationwasfiledorassignedfortrial.
Theprosecutionmaycallatthetrialwitnessesotherthanthosenamedinthecomplaintorinformation.
The private offended party shall be required to appear at the arraignment for purposes of plea
bargaining,determinationofcivilliability,andothermattersrequiringhispresence.Incaseoffailureof
theoffendedpartytoappeardespiteduenotice,thecourtmayallowtheaccusedtoenterapleaofguilty
269
If there is consent of the other party and the prosecutor. If he did so without the
consent of the offended party and the prosecutor and he was convicted, hissubsequent
conviction in the crime charged would not place him in double jeopardy.1148
(a) It should conduct searching inquiry into the voluntariness and full
comprehension of the consequences of the plea;
(b) It should require the prosecution to prove the guilt of the accused and the
precise degree of culpability; and
to a lesser offense which is necessarily included in the offense charged with the conformity of the trial
prosecutoralone.
UnlessashorterperiodisprovidedbyspeciallaworSupremeCourtcircular,thearraignmentshallbe
heldwithinthirty(30)daysfromthedatethecourtacquiresjurisdictionoverthepersonoftheaccused.
The time of the pendency of a motion to quash or for a bill of particulars or other causes justifying
suspensionofthearraignmentshallbeexcludedincomputingtheperiod(Sec.1)
1146
USvs.Kelly,35Phil419;Peoplevs.Sabilul,93Phil.567;Peoplevs.Balisacan;Peoplevs.Stron,L38626,
Mar.14,1975
1147
Sec.5
1148
Atthearraignment,theaccused,withtheconsentoftheoffendedpartyandtheprosecutor,maybe
allowedbythetrialcourttopleadguiltytoalesseroffensewhichisnecessarilyincludedintheoffense
charged.
After arraignment but before trial, the accused may still be allowed to plead guilty to said lesser
offense after withdrawing his plea of not guilty. No amendment of the complaint or information is
necessary(Sec.2)
Ithasbeenheldthattheaccusedcanstillpleadguiltytoalesseroffenseaftertheprosecutionhasrested
(Peoplevs.Villarama,Jr.,210SCRA246;Peoplevs.Luna,174SCRA204)
270
(c) It should inquire whether or not the accused wishes to present evidence on his
behalf and allow him if he so desires.1149
5. Searching Inquiry
a. That the accused is entering the plea of guilty voluntarily and intelligently;
b. That he is truly guilty;
c. That there exists a rational basis for a finding of guilt based on his
testimony.
In addition, the judge must inform the accused of the exact length of imprisonment
and the certainty that he will serve it at the national penitentiary or a penal colony.
The judge must dispel any false notion that the accused may have that he will get
off lightly because of his plea of guilty.
6. Improvident plea
Courts must be careful to avoid improvident pleas of guilt and, where grave crimes
are involved, the proper course is to take down evidence to determine guilt and avoid
doubts.1152
1149
Sec.3;Peoplevs.Dayot,187SCRA637
1150
batasnatin.com
1151
Ibid.
1152
Conviction based onan improvident plea of guilty may besetaside only when such pleais thesole
basisofthejudgment.Butifthetrialcourtreliedontheevidenceoftheprosecutionandconvincing
evidencetoconvictbeyondreasonabledoubt,notonhispleaofguilty,suchconvictionmustbesustained
(Peoplevs.Lunia,G.R.128289,April23,2002)
The withdrawal of an improvident plea of guilty, to be substituted by a plea of not guilty, is permitted
evenafterjudgmenthasbeenpromulgatedbutbeforethesamebecomesfinal.WhilethisRuleissilent
onthematter,apleaofnotguiltycanlikewisebewithdrawnsothattheaccusedmayinsteadpleadguilty
to the same offense, but for obvious reasons, this must be done before promulgation of judgment. In
eithercase,however,ifthe prosecution hadalreadypresented its witnesses, theaccused will generally
notbeentitledtothemitigatingcircumstancebasedonapleaofguilty.(Peoplevs.Lumague,GR53586,
Jan.31,1982)
271
(a) The accused appears to be suffering from an unsound mental condition which
effectively renders him unable to fully understand the charge against him and to plead
intelligently thereto.1153
(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of
suspension shall not exceed sixty (60) days counted from the filing of the petition with the
reviewing office.1154
I. Motion to Quash1155
1. Grounds
1153
Insuchcase,thecourtshallorderhismentalexaminationand,ifnecessary,hisconfinementforsuch
purpose.
1154
Sec.11
1155
Rule117
1156
Hence, the court in resolving the motion cannot consider facts contrary to those alleged in the
information or which do not appear on the face of the information, except those admitted by the
prosecution(Peoplevs.Navarro,75Phil.516)
The motion to quash must be filed before the arraignment. Thereafter, no motion to quash can be
entertainedbythecourt,theonlyexceptionsbeingthoseinSec.9whichadoptstheomnibusmotionrule,
subject to said exceptions. Sec. 3 has been amended to separately refer to lack to jurisdiction over the
offense, not over the person of the accused since, by filing a motion to quash on other grounds, the
accusedhassubmittedhimselftothejurisdictionofthecourt.
1157
1)Bythedeathoftheconvict,astothepersonalpenalties;astopecuniarypenalties,liabilitytherefor
isextinguishedonlywhenthedeathoftheoffenderoccursbeforefinaljudgment.
2)Byserviceofthesentence;
3)Byamnesty,whichcompletelyextinguishesthepenaltyandallitseffects;
4)Byabsolutepardon;
272
When filed At any time before accused enters plea After the prosecution rests its
case
Effect if The court may order that another complaint The accused shall file the
granted or information be filed except as provided demurrer to evidence within a
in section 61163 of this rule. non- extendible period of ten
(10) days from notice.
- If the order is made, the accused, if in
custody, shall not be discharged unless The prosecution may
admitted to bail. oppose the demurrer to
evidence within 10 days from
- If no order is made or if having been receipt of the motion.
made, no new information is filed
within the time specified in the order or
within such further time as the court
may allow for good cause, the accused, if
in custody, shall be discharged unless he is
also in custody of another charge.
5)Byprescriptionofthecrime;
6)Byprescriptionofthepenalty;
7)Bythemarriageoftheoffendedwomanin
a)Seduction
b)abductionor
c)actsoflasciviousness(Art.344RPC)
1158
Sec.3
Groundsthatarenotwaivedevenifnotalleged:
a)Failuretochargeanoffense;
b)Lackofjurisdiction;
c)Extinctionofcriminalactionorliability;
d)Doublejeopardy.
1159
Rule117
1160
Sec.23,Rule119
1161
supra
1163
whichreferstoSec.3(g)and(i),supra
273
Effect if The order denying the motion to quash An accused who files a
denied1162 is interlocutory and therefore not demurrer to evidence with
appealable, nor can it be the subject of a leave of court does not lose
petition for certiorari the right to present evidence
in the event his motion is
denied.
1162
Aspecialcivilactionmaylieagainstanorderofdenialofamotiontoquash,asanexceptiontothe
generalrule,inanyofthefollowinginstances:
(a)Wherethereisnecessitytoaffordprotectiontotheconstitutionalrightsoftheaccused;
(b)Whennecessaryfortheorderlyadministrationofjusticeortoavoidoppressionormultiplicityof
actions;
(c)Wherethereisprejudicialquestionwhichissubjudice;
(d)Whentheactsoftheofficerarewithoutorinexcessofauthority;
(e)Wheretheprosecutionisunderaninvalidlaw,ordinanceorregulation;
(f)Whendoublejeopardyisclearlyapparent;
(g)Wherethecourthasnojurisdictionovertheoffense;
(h)Whereitisacaseofpersecutionratherthanprosecution;
(i)Wherethechargesaremanifestlyfalseandmotivatedbythelustforvengeance;
(j)Whenthereisclearlynoprimafaciecaseagainsttheaccused;and
(k)Toavoidmultiplicityofactions(Brockavs.Enrile,192SCRA183).
Anorderdenyingamotiontoquashisinterlocutoryandnotappealable(Peoplevs.Macandog,L18601,
Jan.31,1963)andgenerally,suchdenialcannotbecontrolledbycertiorari(Ricafortvs.Fernan,101Phil.
575);andthedenialofamotiontoquashgroundedondoublejeopardyisnotcontrollablebymandamus
(Tiongsonvs.Villacete,55OG7017).
1164
supra
1165
Lalicanvs.Vergara,276SCRA518
1166
DeCarlosvs.CA,312SCRA397
274
The motion was based on the grounds specified in Sec. 3(g) and (i).1168
5. Double Jeopardy
The fact of being prosecuted or sentenced twice for substantially the same
offense.1169
No person shall be twice put in jeopardy of punishment for the same offense. If an
act is punished by a law and an ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.1170
1167
seeTable
1168
supra
1169
BlacksLawDictionary,9thEd.
1170
Sec.21,Art.III,Constitution
1171
Peoplevs.Bocar,Aug.10,1985;Navallovs.Sandiganbayan,53SCAD294,July18,1994
When an accused has been convicted or acquitted, or the case against him dismissed or
otherwise terminated without his express consent by a court of competent jurisdiction, upon a valid
complaintorinformationorotherformalchargesufficientinformandsubstancetosustainaconviction
and after the accused had pleaded to the charge, the conviction or acquittal of the accused or the
dismissalofthecaseshallbeabartoanotherprosecutionfortheoffensecharged,orforanyattemptto
commit the same or frustration thereof, or for any offense which necessarily includes or is necessarily
includedintheoffensechargedintheformercomplaintorinformation.
275
6. Provisional Dismissal
A case shall not be provisionally dismissed except with the express consent of the
accused and with notice to the offended party.
With respect to offenses punishable by imprisonment of more than six (6) years,
their provisional dismissal shall become permanent two (2) years after issuance of the order
without the case having been revived.1173
Requisites:
(a) The prosecution with the express conformity of the accused or the accused
moves for a provisional1174dismissal of the case; or both the prosecution and the accused
move for a provisional dismissal of the case;
(b) The offended party is notified of the motion for a provisional dismissal of the
case;
(c) The court issues an order granting the motion and dismissing the case
provisionally;
(d) The public prosecutor is served with a copy of the order of provisional dismissal
of the case.1175
However,theconvictionoftheaccusedshallnotbeabartoanotherprosecutionforanoffensewhich
necessarily includes the offense charged in the former complaint or information under any of the
followinginstances:
(a) the graver offense developed due to supervening facts arising from the same act or omission
constitutingtheformercharge;
(b)thefactsconstitutingthegraverchargebecameknownorwerediscoveredonlyafterapleawas
enteredintheformercomplaintorinformation;or
(c)thepleaofguiltytothelesseroffensewasmadewithouttheconsentoftheprosecutorandofthe
offendedpartyexceptasprovidedinsection1(f)ofRule116.
Inanyoftheforegoingcases,wheretheaccusedsatisfiesorserves,inwholeorinpart,thejudgment,
heshallbecreditedwiththesameintheeventofconvictionforthegraveroffense.(Sec.7)
1172
Sec.5
The order of dismissal shall become permanent one (1) year after service of the order of the
prosecution,withoutthecriminalcasehavingbeenrevived.Thepublicprosecutorcannotbeexpected
tocomplywiththetimelineunlessheisservedwithacopyoftheorderofdismissal.(Peoplevs.Lacson,
G.R.149453,April1,2003)
1173
Sec.8
1174
sinperjuicio
1175
The foregoing requirements are conditions sine qua non to the application of the timebar in the
secondparagraphoftheRule.Theraisondetrefortherequirementoftheexpressconsentoftheaccused
toaprovisionaldismissalofacriminalcaseistobarhimfromsubsequentlyassertingthattherevivalof
276
J. Pre-trial1176
An informal meeting at which opposing attorneys confer, usually with the judge, to
work toward the disposition of the case by discussing matters of evidence and narrowing the
issues that will be tried. The conference takes place shortly before trial and ordinarily results
in a pre-trial order.1177
(e) modification of the order of trial if the accused admits the charge but interposes a
lawful defense; and
(f) such matters as will promote a fair and expeditious trial of the criminal and civil
aspects of the case.1178
2. What the court should do when prosecution and offended party
agree to the plea offered by the accused
The agreements covering the matters referred to in section 11179 of this Rule shall be
approved by the court.1180
3. Pre-trial agreement
It shall be reduced in writing and signed by the accused and counsel, otherwise, it
cannot be used against the accused.
The court may impose proper sanctions or penalties for the non-appearance of the
counsel for the accused or the prosecutor if he does not offer an acceptable excuse for his
lack of cooperation.1181
the criminal case will place him in double jeopardy for the same offense or for an offense necessarily
includedtherein(Peoplevs.Bellosillo,8SCRA835).
1176
Rule118
1177
BlacksLawDictionary,9thEd.
Itusuallyinvolvesthedefendantspleadingguiltytoalesseroffenseortoonlyoneorsomeofthecounts
ofamulticountindictmentinreturnforalightersentencethanthatforthegravercharge.
1178
Sec.1
1179
supra
1180
Sec.2
1181
Sec.3
277
5. Pre-trial order
A court order setting out the claims and defenses to be tried, the stipulations of the
parties, and the cases procedural rules, as agreed to by the parties or mandated by the court
at a pre-trial conference.1182
After the pre-trial conference, the court shall issue an order reciting the actions
taken, the facts stipulated, and evidence marked. Such order shall bind the parties, limit the
trial to matters not disposed of, and control the course of the action during the trial, unless
modified by the court to prevent manifest injustice.1183
The following cases shall be referred to Court-Annexed Mediation (CAM) and be the
subject of Judicial Dispute Resolution (JDR) proceedings:
(1) All civil cases and the civil liability of criminal cases covered by the Rule on
Summary Procedure, including the civil liability for violation of B.P. 22, except those which
by law may not be compromised;
(3) All civil and criminal cases filed with a certificate to file action issued by the
Punong Barangayor the Pangkat ng Tagapagkasundo under the Revised Katarungang Pambarangay
Law;1185
(4) The civil aspect of Quasi-Offenses under Title 14 of the Revised Penal Code;
(5) The civil aspect of less grave felonies punishable by correcional penalties not
exceeding 6 years imprisonment, where the offended party is a private person;
The rule is intended to discourage dilatory moves or strategies as these would run counter to the
purposesofpretrialincriminalcases,morespecificallythoseintendedtoprotecttherightoftheaccused
tofairandspeedytrial.
1182
BlacksLawDictionary,9thEd.
1183
Sec.4
1184
AM1116SCPhilJA
Conceptofcourtdiversionofpendingcases:
ThediversionofpendingcourtcasesbothtoCourtAnnexedMediation(CAM)andtoJudicialDispute
Resolution (JDR) is plainly intended to put an end to pending litigation through acompromise
agreementofthepartiesandtherebyhelpsolvetheeverpressingproblemofcourtdocketcongestion.It
isalsointendedtoempowerthepartiestoresolvetheirowndisputesandgivepracticaleffecttotheState
PolicyexpresslystatedintheADRActof2004(R.A.No.9285),towit:
to actively promote party autonomy in the resolution of disputes or the freedom of the parties to
maketheirownarrangementtoresolvedisputes.Towardsthisend,theStateshallencourageandactively
promotetheuseofAlternativeDisputeResolution
(ADR)asanimportantmeanstoachievespeedyandimpartialjusticeanddeclogcourtdockets.
1185
Chapter7,RA7160
278
(7) All civil cases and probate proceedings, testate and intestate, brought on appeal
from the exclusive and original jurisdiction granted to the first level courts under Section 33,
par. (1)1186 of the Judiciary Reorganization Act of 1980;1187
(8) All cases of forcible entry and unlawful detainer brought on appeal from the
exclusive and original jurisdiction granted to the first level courts under Section 33, par.
(2)1188 of the Judiciary Reorganization Act of 1980;
(9) All civil cases involving title to or possession of real property or an interest
therein brought on appeal from the exclusive and original jurisdiction granted to the first
level courts under Section 33, par.(3)1189 of the Judiciary Reorganization Act of 1980; and
(10) All habeas corpus cases decided by the first level courts in the absence of the
Regional Trial Court judge, that are brought up on appeal from the special jurisdiction
granted to the first level courts under Section 351190 of the Judiciary Reorganization Act of
1980.1191
1186
Exclusive original jurisdiction over civil actions and probate proceedings, testate and intestate,
including the grant of provisional remedies in proper cases, where the value of the personal property,
estate, or amount of the demand does not exceed One hundred thousand pesos (P100,000.00) or, in
Metro Manila where such personal property, estate, or amount of the demand does not exceed Two
hundredthousandpesos(P200,000.00)exclusiveofinterestdamages ofwhateverkind,attorney's fees,
litigation expenses, and costs, the amount of which must be specifically alleged: Provided, That where
thereareseveralclaimsorcausesofactionbetweenthesameordifferentparties,embodiedinthesame
complaint, the amount of the demand shall be the totality of the claims in all the causes of action,
irrespectiveofwhetherthecausesofactionaroseoutofthesameordifferenttransactions;
1187
A.M.No.08910SCPhilJA
1188
Exclusiveoriginaljurisdictionovercasesofforcibleentryandunlawfuldetainer:Provided,Thatwhen,
in such cases, the defendant raises the question of ownership in his pleadings and the question of
possessioncannotberesolvedwithoutdecidingtheissue ofownership,theissueofownershipshallbe
resolvedonlytodeterminetheissueofpossession.
1189
Exclusiveoriginaljurisdictioninallcivilactionswhichinvolvetitleto,orpossessionof,realproperty,or
anyinterestthereinwheretheassessedvalueofthepropertyorinterestthereindoesnotexceedTwenty
thousand pesos (P20,000.00) or, in civil actions in Metro Manila, where such assessed value does not
exceed Fifty thousand pesos (P50,000.00) exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses and costs: Provided, That value of such property shall be determined by the
assessedvalueoftheadjacentlots.
1190
In the absence of all the Regional Trial Judges in a province or city, any Metropolitan Trial Judge,
Municipal Trial Judge, Municipal Circuit Trial Judge may hear and decide petitions for a writ of habeas
corpus or applications for bail in criminal cases in the province or city where the absent Regional Trial
Judgessit.
1191
Procedure:
Judicialproceedingsshallbedividedintotwostages:
(1)FromthefilingofacomplainttotheconductofCAMandJDRduringthepretrialstage,and
(2)pretrialpropertotrialandjudgment.
The judge to whom the case has been originally raffled, who shall be called the JDR Judge, shall
presideoverthefirststage.Thejudge,whoshallbecalledthetrialjudge,shallpresideoverthesecond
stage.
279
K. Trial1192
Continuous trial is one where the courts are called upon to conduct the trial with
utmost dispatch, with judicial exercise of the courts power to control the trial to avoid delay
At the initial stage of the pretrial conference, the JDR judge briefs the parties and counsels of the
CAM and JDR processes. Thereafter, he issues an Order of Referral of the case to CAM and directs the
partiesandtheircounselstoproceedtothePMCUbringingwiththemacopyoftheOrderofReferral.The
JDRjudgeshallincludeinsaidOrder,orinanotherOrder,thepresettingofthecaseforJDRnotearlier
thanfortyfive(45)daysfromthetimethepartiesfirstpersonallyappearatthePMCUsothatJDRwillbe
conductedimmediatelyifthepartiesdonotsettleatCAM.
AllincidentsormotionsfiledduringthefirststageshallbedealtwithbytheJDRjudge.IfJDRisnot
conducted because of the failure of the parties to appear, the JDR judge may impose the appropriate
sanctionsandshallcontinuewiththeproceedingsofthecase.
If the parties do not settle their dispute at CAM, the parties and their counsels shall appear at the
presetdatebeforetheJDRjudge,whowillthenconducttheJDRprocessasmediator,neutralevaluator
and/or conciliator in order to actively assist and facilitate negotiations among the parties for them to
settletheirdispute.Asmediatorandconciliator,thejudgefacilitatesthesettlementdiscussionsbetween
thepartiesandtriestoreconciletheirdifferences.Asaneutralevaluator,thejudgeassessestherelative
strengthsandweaknessesofeachparty'scaseandmakesanonbindingandimpartialevaluationofthe
chancesofeachparty'ssuccessinthecase.Onthebasisofsuchneutralevaluation,thejudgepersuades
thepartiestoafairandmutuallyacceptablesettlementoftheirdispute.TheJDRjudgeshallnotpreside
overthetrialofthecasewhenthepartiesdidnotsettletheirdisputeatJDR.
If settlement is reached on the civil aspect of the criminal case, the parties, assisted by their
respective counsels, shall draft the compromise agreement which shall be submitted to the court for
appropriateaction.
Actiononthecriminalaspectofthecasewillbedeterminedbythepublicprosecutor,subjecttothe
appropriateactionofthecourt.
Ifsettlementisnotreachedbythepartiesonthecivilaspectofthecriminalcase,theJDRjudgeshall
proceedtoconductthetrialonthemeritsofthecaseshouldthepartiesfileajointwrittenmotionforhim
to do so, despite confidential information that may have been divulged during the JDR proceedings;
otherwise,theJDRjudgeshallturnoverthecasetoanewjudgebyreraffleinmultiplesalacourtsorto
theoriginatingcourtinsinglesalacourts,fortheconductofpretrialproperandtrial.
Where no settlement or only a partial settlement was reached, and there being no joint written
motionsubmittedbytheparties,asstatedinthelastprecedingparagraphs,theJDRjudgeshallturnover
the case to the trial judge, determined by reraffle in multiple sala courts or to the originating court in
singlesalacourts,asthecasemaybe,toconductpretrialproper,asmandatedbyRules18and118of
theRulesofCourt.
ThefollowingcasesshallnotbereferredtoCAMandJDR:
1.Civilcaseswhichbylawcannotbecompromised(Article2035,NewCivilCode);
2.Othercriminalcasesnotcoveredunderparagraphs3to6above;
3.HabeasCorpuspetitions;
4.AllcasesunderRepublicActNo.9262(ViolenceagainstWomenandChildren);and
5.CaseswithpendingapplicationforRestrainingOrders/PreliminaryInjunctions.
However,incasescoveredunder1,4and5wherethepartiesinformthecourtthattheyhaveagreed
toundergomediationonsomeaspectsthereof,e.g.,custodyofminorchildren,separationofproperty,or
supportpendentelite,thecourtshallreferthemtomediation.
1192
Rule119
1193
BlacksLawDictionary,9thEd.
280
and for each party to complete the presentation of evidence with the trial dates assigned to
him.1194
(a) On arraignment;
(b) On promulgation of judgment except for light offenses;
(c) For identification purposes;
(d) When the court with due notice requires so.1196
(a) The witness is really material and appears to the court to be so;
(b) The party who applies for postponement has not been guilty of neglect;
(c) The witness can be had at the time to which the trial has been deferred; and
(d) No similar evidence could be obtained.1197
3. Trial in Absentia
The Constitution permits trial in absentia of an accused after his arraignment who
unjustifiably fails to appear during the trial notwithstanding due notice. The purpose of trial
in absentia is to speed up the disposition of criminal cases.1199
1194
Admin.Cir.4datedSept.22,1988
1195
Theonlyinstanceswhenthepresenceoftheaccusedisrequiredbylawandwhenthelawmayforfeit
thebondifhefailstoappear.
1196
Marcosvs.Ruiz,Sept.1,1992
1197
USvs.Ramirez,39Phil.738
The nonappearance of the prosecution at the trial, despite due notice, justifies a provisional dismissal
(Jacavs.Blanco,86Phil.452),oranabsolutedismissal(Peoplevs.Robles,105Phil.1016),dependingon
thecircumstances.Sec.3,Rule22doesnotapplytocriminalcases.
1198
BlacksLawDictionary,9thEd.
1199
Requisitesoftrialinabsentia:
(a)Theaccusedhasbeenarraigned;
(b)Hehasbeendulynotifiedofthetrial;and
(c)Hisfailuretoappearisjustified(Peoplevs.Agbulos,222SCRA196)
The waiver of the accused of appearance or trial in absentia does not mean that the prosecution is
therebydeprivedofitsrighttorequirethepresenceoftheaccusedforpurposesofidentificationbythe
witnesseswhichisvitalforconvictionoftheaccused,exceptwhereheunqualifiedlyadmitsinopencourt
afterhisarraignmentthatheisthepersonnamedasdefendantinthecaseontrial.
281
The information may be dismissed on motion of the accused on the ground of denial
of his right to speedy trial. The accused shall have the burden of proving the motion but the
prosecution shall have the burden of going forward with the evidence to establish the
exclusion of time under section 31200 of this rule. The dismissal shall be subject to the rules
on double jeopardy. Failure of the accused to move for dismissal prior to trial shall
constitute a waiver of the right to dismiss under this section.1201
(a) There is absolute necessity for the testimony of the accused whose discharge is
requested;
(b) There is no other direct evidence available for the proper prosecution of
the offense committed, except the testimony of said accused;
(c) The testimony of said accused can be substantially corroborated in its material
points;
(d) Said accused does not appear to be the most guilty; and
(c) Said accused has not at any time been convicted of any offense involving moral
turpitude.1202
Suchwaiverdoesnotmeanareleaseoftheaccusedfromhisobligationunderthebondtoappearin
courtwheneverrequired.Theaccusedmaywaivehisrightbuthecannotdisregardhisdutyorobligation
tothecourt.Hecanstillbesubpoenaedtoappearforidentificationpurposes,withoutviolatinghisright
againstselfincriminationashewillnottakethestandtotestifybutmerelytobepresentincourt,where
theprosecutionwitnessmay,whileinthewitnessstand,pointtohimastheaccused(Carredovs.People,
183SCRA273).
1200
supra
1201
Sec.9
UnlessashorterperiodisprovidedbyspeciallaworSupremeCourtcircular,thearraignmentshallbeheld
withinthirty(30)daysfromthedatethecourtacquiresjurisdictionoverthepersonoftheaccused.The
timeofthependencyofamotiontoquashorforabillofparticularsorothercausesjustifyingsuspension
ofthearraignmentshallbeexcludedincomputingtheperiod(Sec1[g],Rule116)
1202
Sec.17
Evidenceadducedinsupportofthedischargeshallautomaticallyformpartofthetrial.Ifthecourtdenies
the motion for discharge of the accused as state witness, his sworn statement shall be inadmissible in
evidence(ibid.)
Any person who has participated in the commission of a crime and desires to be a witness for the
State,canapplyand,ifqualified,shallbeadmittedintotheprogram(tobeastatewitness)wheneverthe
followingcircumstancesarepresent:
(a) The offense in which his testimony will be used is a grave felony as defined under the Revised
PenalCodeoritsequivalentunderspeciallaws;
(b)Thereisabsolutenecessityforhistestimony;
(c) There is no other direct evidence available for the proper prosecution of the offense
committed;
(d)Histestimonycanbesubstantiallycorroboratedonitsmaterialpoints;
282
The order shall amount to an acquittal of the discharged accused and shall be a bar
to future prosecution for the same offense, unless:
(a) The accused fails or refuses to testify against his co-accused in accordance with
his sworn statement constituting the basis for his discharge;1203
(b) If he was granted immunity and fails to keep his part of the agreement, his
confession of his participation in the commission of the offense is admissible in evidence
against him.1204
The court shall order the discharge and exclusion of the said accused from the
information.
Admission into such Program shall entitle such State Witness to immunity from
criminal prosecution for the offense or offenses in which his testimony will be given or
used.1205
7. Demurrer to Evidence
After the prosecution rests its case, the court may dismiss the action on the
ground of insufficiency of evidence
(1) on its own initiative after giving the prosecution the opportunity to be heard or
(2) upon demurrer to evidence filed by the accused with or without leave of court.
If the court denies the demurrer to evidence filed with leave of court, the accused
may adduce evidence in his defense.
When the demurrer to evidence is filed without leave of court, the accused waives
the right to present evidence and submits the case for judgment on the basis of the evidence
for the prosecution.
The motion for leave of court to file demurrer to evidence shall specifically state its
grounds and shall be filed within a non-extendible period of five (5) days after the
(e)Hedoesnotappeartobethemostguilty;and
(f)Hehasnot,atanytime,beenconvictedofanycrimeinvolvingmoralturpitude(Sec.10,R.A.6981,
theWitnessProtectionLaw).
1203
Sec.18
1204
Peoplevs.Berberino,79SCRA694
1205
Sec.12,R.A.6981
1206
BlacksLawDictionary,9thEd.
283
prosecution rests its case. The prosecution may oppose the motion within a non-extendible
period of five (5) days from its receipt.
If leave of court is granted, the accused shall file the demurrer to evidence within a
non-extendible period of ten (10) days from notice. The prosecution may oppose the
demurrer to evidence within a similar period from its receipt.
The order denying the motion for leave of court to file demurrer to evidence or the
demurrer itself shall not be reviewable by appeal or by certiorari before judgment.1207
L. Judgment1208
It means the adjudication by the court that the accused is guilty or is not guilty of the
offense charged, and the imposition of the proper penalty and civil liability provided for by
law on the accused.1209
1. Requisites of a judgment
It must be written in the official language, personally and directly prepared by the
judge and signed by him and shall contain clearly and distinctly a statement of the facts and
the law upon which it is based.1210
2. Contents of Judgment
1207
Sec.23
1208
Rule120
1209
Sec.1
Memorandumdecisionisoneinwhichtheappellatecourtmayadoptbyreference,thefindingsoffacts
andconclusionsoflawcontainedinthedecisionappealedfrom(Sec.24,InterimRulesandGuidelines)
1210
Sec.1
284
In either case, the judgment shall determine if the act or omission from which the civil
liability might arise did not exist.1211
The judgment is promulgated by reading it in the presence of the accused and any
judge of the court in which it was rendered.
However, if the conviction is for a light offense, the judgment may be pronounced in
the presence of his counsel or representative. When the judge is absent or outside the
province or city, the judgment may be promulgated by the clerk of court.
If the accused is confined or detained in another province or city, the judgment may
be promulgated by the executive judge of the Regional Trial Court having jurisdiction over
the place of confinement or detention upon request of the court which rendered the
judgment. The court promulgating the judgment shall have authority to accept the notice of
appeal and to approve the bail bond pending appeal; provided, that if the decision of the trial
1211
Sec.2
285
court convicting the accused changed the nature of the offense from non-bailable to
bailable, the application for bail can only be filed and resolved by the appellate court.1212
1212
The proper clerk of court shall give notice to the accused personally or through his bondsman or
wardenandcounsel,requiringhimtobepresentatthepromulgationofthedecision.Iftheaccusedwas
triedinabsentiabecausehejumpedbailorescapedfromprison,thenoticetohimshallbeservedathis
lastknownaddress.
1213
Sec.6
Ifthejudgmentisforconvictionandthefailureoftheaccusedtoappearwaswithoutjustifiablecause,he
shalllosetheremediesavailableintheserulesagainstthejudgmentandthecourtshallorderhisarrest.
Withinfifteen(15)daysfrompromulgationofjudgment,however,theaccusedmaysurrenderandfilea
motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the
scheduledpromulgationandifheprovesthathisabsencewasforajustifiablecause,heshallbeallowed
toavailofsaidremedieswithinfifteen(15)daysfromnotice(ibid.)
1214
Sec.7
286
Either on motion of accused, or the court Must be upon motion of a party, cannot be
motu proprio with consent of the accused motu proprio
Grounds for MNT errors of law or Grounds for MNT FAME,1216 or newly
irregularities committed during the trial, or discovered evidence
newly discovered evidence
Filed any time before judgment of Filed within the period for taking an appeal.
conviction becomes final Should include all the grounds then available
and those not so included shall be deemed
waived.
(a) Errors of law or irregularities prejudicial to the substantial rights of the accused
have been committed during the trial;
(b) New and material evidence has been discovered which the accused could not
with reasonable diligence have discovered and produced at the trial and which if introduced
and admitted would probably change the judgment.1217
1215
Rule121
1216
Fraud,Accident,MistakeorExcusablenegligence
1217
Sec.2
1218
Sec.3
287
(a) On the ground of errors of law or irregularities committed during the trial - all the
proceedings and evidence affected thereby shall be set aside and taken anew.1221
In all cases, when the court grants new trial or reconsideration, the original judgment
shall be set aside or vacated and a new judgment rendered accordingly.1222
If the motion is denied, the movant has a fresh period of 15 days from receipt of
notice of the order denying or dismissing the motion for reconsideration within which to file
a notice to appeal.
Accordingly, this rule was adopted to standardize the appeal periods provided in the
Rules to afford fair opportunity to review the case and, in the process, minimize errors of
judgment. Obviously, the new 15 day period may be availed of only if either motion is filed;
otherwise, the decision becomes final and executory after the lapse of the original appeal
period provided in Rule 41.1223
1219
notmerelycumulative,corroborativeorimpeaching
1220
Josevs.CA,70SCRA257
1221
Thecourtmay,intheinterestofjustice,allowtheintroductionofadditionalevidence.
1222
Sec.6
1223
Neypesvs.CA,G.R.141524,Sept.14,2005
288
The Neypes ruling shall not be applied where no motion for new trial or motion for
reconsideration has been filed in which case the 15-day period shall run from notice of the
judgment.
The fresh period rule does not refer to the period within which to appeal from the
order denying the motion for new trial because the order is not appealable under Sec. 9, Rule
37.1224 The non- appealability of the order of denial is also confirmed by Sec. 1(a), Rule 41,
which provides that no appeal may be taken from an order denying a motion for new trial
or a motion for reconsideration
In the case of Judith Yu vs. Judge Samson,1225 the SC held that the Neypes doctrine
is applicable in criminal cases.
N. Appeal1226
An appeal opens the whole case for review and this includes the review of the
penalty, indemnity and the damages involved.1227
1. Effect of an Appeal
Upon perfection of the appeal, the execution of the judgment or order appealed
from is stayed as to the appealing party.1228
The civil appeal of the offended party does not affect the criminal aspect of the
judgment or order appealed from.
Upon perfection of the appeal, the trial court loses jurisdiction over the case,
except:
(a) To issue orders for the protection and preservation of the rights of the parties
which do not involve any matter litigated by the appeal;
(b) To approve compromises offered by the parties prior to the transmission of the
records on appeal to the appellate court.1229
1224
supra
1225
Feb.9,2011
1226
Rule122
1227
Quemuelvs.CA,22SCRA44
1228
Sec.11[c]
1229
Sec.9,Rule41
289
2. Where to appeal
The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided
by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing
a notice of appeal with the court which rendered the judgment or final order appealed from
and by serving a copy thereof upon the adverse party.
The appeal to the Court of Appeals in cases decided by the Regional Trial Court in
the exercise of its appellate jurisdiction shall be by petition for review under Rule 42.1232
The appeal in cases where the penalty imposed by the Regional Trial Court is reclusion
perpetua, or life imprisonment, or where a lesser penalty is imposed but for offenses
committed on the same occasion or which arose out of the same occurrence that gave rise to
the more serious offense for which the penalty of death, reclusion perpetua, or life
imprisonment is imposed, shall be by notice of appeal to the Court of Appeals in
accordance with paragraph (a)1233 of this Section.
No notice of appeal is necessary in cases where the death penalty is imposed by the
Regional Trial Court. The Court of Appeals shall automatically reviewthe judgment as
provided in section 101234 of this Rule.
1230
inthepropercasesprovidedbylaw
1231
asamendedbyA.M.No.00503SCRe:AmendmentstotheRevisedRulesofCriminalProcedureto
governDeathPenaltyCasesResolutioneffectiveOctober15,2004
1232
supra
1233
TheappealtotheRegionalTrialCourt,ortotheCourtofAppealsincasesdecidedbytheRegionalTrial
Courtintheexerciseofitsoriginaljurisdiction,shallbetakenbyfilinganoticeofappealwiththecourt
which rendered the judgment or final order appealed from and by serving a copy thereof upon the
adverseparty.
1234
Transmissionofrecordsincaseofdeathpenalty.Inallcaseswherethedeathpenaltyisimposedby
thetrialcourt,therecordsshallbeforwardedtotheCourtofAppealsforautomaticreviewandjudgment
withintwenty(20)butnotearlierthanfifteen(15)frompromulgationofthejudgmentornoticeofdenial
ofamotionfornewtrialorreconsideration.Thetranscriptshallalsobeforwardedwithinten(10)days
afterthefilingthereofbythestenographicreporter.
290
Except as provided in the last paragraph of section 13,1235Rule 124, all other appeals
to theSupreme Court shall be by petition for review on certiorari under Rule 45.1236
(a) An appeal taken by one or more of several accused shall not affect those who did
not appeal, except insofar as the judgment of the appellate court is favorable and applicable
to the latter.
(b) The appeal of the offended party from the civil aspect shall not affect the
criminal aspect of the judgment or order appealed from.
(c) Upon perfection of the appeal, the execution of the judgment or final order
appealed from shall be stayed as to the appealing party.1237
(c) The questions raised therein are too unsubstantial to require consideration.1238
The constitutional right against unreasonable search and seizure refers to the
immunity of ones person, whether a citizen or alien, from interference by government,
included in which is his residence, his papers andother possession.1240
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of arrest shall issue except upon probable
cause to be determined personally by the judge after examination under oath or affirmation
1235
WhenevertheCourtofAppealsfindthatthepenaltyofdeath,reclusionperpetua,orlifeimprisonment
shouldbeimposedinacase,thecourt,afterdiscussionoftheevidenceandthelawinvolved,shallrender
judgment imposing the penalty of death, reclusion perpetua, or life imprisonment as the circumstance
warrant.However,itshallrefrainfromenteringthejudgmentandforthwithcertifythecaseandelevate
theentirerecordthereoftotheSupremeCourtforreview.
1236
Sec.3
1237
Sec.11
1238
Sec.8,Rule65
1239
Rule126
1240
Villanuevavs.Querubin,48SCRA345
291
of the complainant and the witnesses he may produce, and particularly describing the place
to be searched and the persons or things to be seized.1241
A search warrant is an order in writing issued Arrest is the taking of a person into custody
in the name of the People of the Philippines, in order that he may be bound to answer for
signed by a judge and directed to a peace the commission of an offense.1245
officer, commanding him to search for
personal property described therein and
bring it before the court.1244
A search warrant shall not issue except (1) Within 10 days from the filing of the
upon probable cause in connection with complaint or information
one specific offense to be determined
personally by the judge after examination (2) The judge shall personally evaluate
under oath or affirmation of the complainant the resolution of the prosecutor and its
and the witness he may produce, and supporting evidence.
particularly describing the place to be
searched and the things to be seized which (3) If he finds probable cause, he shall issue a
may be anywhere in the Philippines.1246 warrant of arrest.
1241
Sec.2,Art.III,Constitution
Theoverridingfunctionoftheconstitutionalguaranteeistoprotectpersonalprivacyandhumandignity
againstunwarrantedintrusionbytheState.Itisdeferencetoonespersonalitythatliesatthecoreofhis
right,butitcouldalsobelookeduponasarecognitionofaconstitutionallyprotectedareaprimarilyones
house, but not necessarily thereto confined. What is sought to be guarded is a mans prerogative to
choosewhoisallowedentrytohisresidence.Inthathavenofrefuge,hisindividualitycanassertitselfnot
onlyinthechoiceofwhoshallbewelcomebutlikewiseinthekindofobjectshewantsaroundhim.Thus
isoutlawedanyunwarrantedintrusionbygovernment,whichiscalledupontorefrainfromanyintrusion
ofhisdwellingandtorespecttheprivaciesofhislife(Schmerbervs.California,384US757)
1242
Rule126
1243
Rule113
1244
Sec.1
1245
Ibid.
1246
Sec.4,Rule126
292
Search or seizure without warrant, when Arrest without warrant, when lawful:
lawful:
(a) When, in his presence, the person to be
(a) Consented search; arrested has committed, is actually
committing, or is attempting to commit an
(b) As an incident to a lawful arrest; offense;
(c) Searches of vessels and aircrafts for (b) When an offense has just been
violation of immigration, customs and drug committed and he has probable cause to
laws; believe based on personal knowledge of facts
or circumstances that the person to be
(d) Searches of moving vehicles; arrested has committed it; and
(a) Any court within whose territorial jurisdiction a crime was committed; or
(b) Any court within the judicial region where the crime was committed if the place
of the commission of the crime is known, or any court within the judicial region where the
warrant shall be enforced.1250
1247
Sec.5
1248
intimesofwarandwithintheareaofmilitaryoperation
1249
Ibid.
1250
forcompellingreasonsstatedintheapplication
293
However, if the criminal action has already been filed, the application shall only be
made in the court where the criminal action is pending.1251
4. Probable Cause
Such facts and circumstances which could lead a reasonably discreet and prudent
man to believe that an offense has been committed and that the objects sought in
connection with the offense are in the place sought to be searched.1252
Although probable cause eludes exact and concrete definition, it generally signifies a
reasonable ground of suspicion supported by circumstances sufficiently strong in themselves
to warrant a cautious man to believe that a person accused is guilty of the offense with which
he is charged.1253
In the form of searching questions and answers, in writing and under oath, the
complainant and the witnesses he may produce on facts personally known to them and
attach to the record their sworn statements, together with the affidavits submitted.1254
The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place intended to be
searched. Where there are several apartments in the place to be searched, a description of the
specific place can be determined by reference to the affidavits supporting the warrant that
the apartment to be searched is the one occupied by the accused. The searching party cannot
go from one apartment to the other as the warrant will then become a general warrant.1255
1251
Sec.2
1252
20thCenturyFoxFilmCorp.vs.CA,GR7664951,08/19/88
1253
Peoplevs.Aruta,288SCRA626
Requisitesforissuingsearchwarrant.Asearchwarrantshallnotissueexceptuponprobablecause
inconnectionwithonespecificoffensetobedeterminedpersonallybythejudgeafterexaminationunder
oathoraffirmationofthecomplainantandthewitnesshemayproduce,andparticularlydescribingthe
placetobesearchedandthethingstobeseizedwhichmaybeanywhereinthePhilippines(Sec.4).
Issuanceandformofsearchwarrant.Ifthejudgeissatisfiedoftheexistenceoffactsuponwhichthe
applicationisbasedorthatthereisprobablecausetobelievethattheyexist,heshallissuethewarrant,
whichmustbesubstantiallyintheformprescribedbytheseRules(Sec.6).
1254
Sec.5
1255
Peoplevs.Salanguit,356SCRA683
Therightofthepeopletobesecureintheirpersons,houses,papers,andeffectsagainstunreasonable
searchesandseizuresofwhatevernatureandforanypurposeshallbeinviolable,andnosearchwarrant
orwarrantofarrestshallissueexceptuponprobablecausetobedeterminedpersonallybythejudge
afterexaminationunderoathoraffirmationofthecomplainantandthewitnesseshemayproduce,and
particularly describing the place to be searched and the persons or things to be seized (Sec. 2, Art. III,
Constitution)
294
The place specified in the search warrant, and not the place the police officers who
applied for the search warrant had in mind, controls. For the police officers cannot amplify
nor modify the place stated in the search warrant.1256
It is not necessary that the property to be searched or seized should be owned by the
person against whom the search is issued; it is sufficient that the property is under his
control or possession.1258
1256
Peoplevs.CA,291SCRA400
1257
Sec.3
1258
Peoplevs.Dichoso,223SCRA174
1259
Peoplevs.Valez,304SCRA140
1260
Sec.13,Rule126
Thebetterandestablishedruleisastrictapplicationoftheexceptionprovided(inSec.12,id.)andthatis
toabsolutely limitawarrantlesssearchof apersonwhoislawfullyarrestedto hisorher personat the
295
The law requires that there first be a lawful arrest before a search can be made. The
process cannot be reversed.1261
b. Consented Search
Rights may be waived, unless the waiver is contrary to law, public order, morals, or
good customs, or prejudicial to a third person with a right recognized by law.1262
This is justified on the ground that the mobility of motor vehicles makes it possible
for the vehicles to move out of the locality or jurisdiction in which the warrant must be
sought. This, however, does not give the police officers unlimited discretion to conduct
warrantless searches of automobiles in the absence of probable cause.1265
time of and incident to his or her arrest and to dangerous weapons or anything which may be used as
proofofthecommissionoftheoffense.Suchwarrantlesssearchobviouslycannotbemadeinanyother
thantheplaceofarrest(Nolascovs.Pano,147SCRA500)
1261
Peoplevs.Malmstedt,198SCRA40
Thus,inabuybustoperationconductedtoentrapadrugpusher,thelawenforcementagentsmayseize
themarkedmoneyfoundonthepersonofthepusherimmediatelyafterthearrestevenwithoutarrest
andsearchwarrants(Peoplevs.Paco,170SCRA681).
1262
Art.6,CivilCode
1263
Peoplevs.Salangga,G.R.100910,07/25/94
Astheconstitutionalguaranteeisnotdependentuponanyaffirmativeactofthecitizen,thecourtsdo
not place the citizen in the position of either contesting an officers authority by force, or waiving his
constitutional rights, but instead they hold that a peaceful submission and silence of the accused in a
searchorseizureisnotaconsentoraninvitationthereto,butismerelyademonstrationofregardtothe
supremacyofthelaw(Peoplevs.Barros,231SCRA557).
1264
that is, the vehicles are neither really searched nor their occupants subjected to physical or body
searches,theexaminationofthevehiclesbeinglimitedtovisualinspection(Peoplevs.Barros,231SCRA
557)
1265
Peoplevs.Bagista,214SCRA63
Warrantless search of moving vehicle is justified on the ground that it is not practicable to secure a
warrantbecausethevehiclecanbequicklymovedoutofthelocalityorjurisdictioninwhichthewarrant
mustbesought(Peoplevs.LoHoWong,193SCRA122)
296
The search which is normally permissible in this instance is limited to the following:
(1) where the officer merely draws aside the curtain of a vacant vehicle which is
parked on the public fair grounds;
The plain view doctrine recognizes that objects inadvertently falling in plain view of
an officer who has the right to be in the position to have that view, are subject to seizure
without warrant.1267
(a) prior valid intrusion based on the valid warrantless arrest in which the police are
legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right to be
where they are;
(c) the evidence must be immediately apparent; and
(d) plain view justified by mere seizure of evidence without further search.1268
1266
Caballesvs.CA,GR136292,01/15/02
InAniag,Jr.vs.COMELEC,237SCRA424,awarrantlesssearchconductedatpoliceormilitarycheckpoints
hasbeenupheldforaslongasthevehicleisneithersearchednoritsoccupantssubjectedtobodysearch,
andtheinspectionofthevehicleismerelylimitedtovisualsearch.
1267
Harrisvs.US,390US324
Itmaynot,however,beusedtolaunchunbridledsearchesandindiscriminateseizures,nortoextend
a general exploratory search made solely to find evidence of a defendants guilt. It is usually applied
where a police officer is not searching for evidence against the accused, but nonetheless inadvertently
comesacrossanincriminatingobject(Coolidgevs.NewHampshire,403US443).
Itisalsobeensuggestedthatevenifanobjectisobservedinplainview,theseizureofthesubjectwill
notbejustifiedwheretheincriminatingnatureoftheobjectisnotapparent.Stateddifferently,itmustbe
immediately apparent to the police that the items that they observe may be evidence of a crime,
contrabandorotherwisesubjecttoseizure(Peoplevs.Musa,217SCRA597).
1268
Peoplevs.Aruta,288SCRA626
297
This is based on the conduct of the person, who acts suspiciously, and when
searched, such search would yield unlawful items in connection with an offense, such as
unlicensed firearms, and prohibited drugs.1269
Person(s) deputized by the Bureau of Customs can affect searches, seizures and
arrests even without warrant of seizure or detention. They could lawfully open and examine
any box, trunk, envelope or other container wherever found when there is reasonable cause
to suspect the presence of dutiable articles introduced into the Philippines contrary to law.
They can likewise stop, search and examine any vehicle, beast or person reasonably
suspected of holding or conveying such articles.1270
Under the Tariff and Customs Code, customs officers are authorized to make arrest,
search and seizure of any vessel, aircraft, cargo, articles, animals or other movable property
when the same is subject to forfeiture or liable for any fine under the customs and tariff
laws, rules and regulations1271 and may at any time enter, pass through or search any land or
enclosure or any warehouse, store or other building without being a dwelling house.1272
(a) Motion to quash the search warrant with the issuing court; or
(b) Motion to suppress evidence with the court trying the criminal case.1273
1269
Thus,ithasbeenheldthatapersonwhowascarryingabagandactingsuspiciouslycouldbesearched
by police officers and the unlicensed firearm seized inside the bag is admissible in evidence, being an
incidentofalawfularrest.Similarly,apersonroamingaroundinaplacewheredrugaddictsusuallyare
found,whoseeyeswereredandwhowaswobblinglikeadrunk,couldbelegallysearchedofhisperson
andtheillegaldrugseizedfromhimisadmissibleinevidenceagainsthim(Manalilivs.CA,280SCRA400).
Astopandfriskservesatwofoldinterest:
(1)thegeneralinterestofeffectivecriminalprotectionanddetectionwhichunderlietherecognitionthat
apoliceofficermay,underappropriatecircumstancesandinanappropriatemanner,approachaperson
forpurposesofinvestigatingpossiblecriminalbehaviorevenwithoutprobablecause;and
(2)themorepressinginterestofsafetyandselfpreservationwhichpermitthepoliceofficertotake
stepstoassurehimselfthatthepersonwithwhomhedealsisnotarmedwithadeadlyweaponthatcould
unexpectedlyandfatallybeusedagainsthim(Terryvs.Ohio,392US1)
1270
Papavs.Mago,22SCRA857
Theintentionbehindthegrantofsuchauthorityistopreventsmugglingandtosecurethecollectionof
thelegalduties,taxesandothercharges(Sec.2202,TariffandCustomsCode).
1271
Sec.2205
1272
Sec.2208
Adwellinghousemaybeenteredorsearchedonlyuponwarrantsissuedbyjudgeuponswornapplication
showingprobablecauseandparticularlydescribingtheplacedtobesearchedandpersonorthingstobe
searched(Sec.220).
1273
Theremediesarealternative,notcumulative.
Ifthemotiontoquashisdenied,amotiontosuppresscannotbeavailedofsubsequently.
298
P. Provisional Remedies1274
1. Nature
The provisional remedies in civil actions, insofar as they are applicable, may be
availed of in connection with the civil action deemed instituted with the criminal action.1275
(a) Attachment.
When the civil action is properly instituted in the criminal action as provided in Rule
111,1276 the offended party may have the property of the accused attached as security for the
satisfaction of any judgment that may be recovered from the accused in the following cases:
(2) When the criminal action is based on a claim for money or property
embezzled or fraudulently misapplied or converted to the use of the accused who is
a public officer, officer of a corporation, attorney, factor, broker, agent or clerk, in
the course of his employment as such, or by any other person in a fiduciary capacity,
or for a willful violation of duty;
(3) When the accused has concealed, removed, or disposed of his property,
or is about to do so; and
Amotiontoquashasearchwarrantand/ortosuppressevidenceobtainedtherebymaybefiledinand
acted upon only by the court where the action has been instituted. If no criminal action has been
instituted,themotionmaybefiledinandresolvedbythecourtthatissuedsearchwarrant.However,if
such court failed to resolve the motion and a criminal case is subsequently filed in another court, the
motionshallberesolvedbythelattercourt(Sec.14).
If a search warrant is issued and it is attacked, a motion to quash is the remedy or a motion to
suppress the evidence seized pursuant to the search warrant would be available. Replevin may also be
properiftheobjectsarelegallypossessed.
1274
Rule127
1275
Sec.1
Therequisitesandprocedureforavailingoftheseprovisionalremediesshallbethesameasthosefor
civilcases.Consequently,anapplicationforrecoveryofdamagesonthebondpostedforpurposesofsaid
provisionalremediesshallbemadeinthesameactionand,generally,cannotbethesubjectofaseparate
action(Sec.14,Rule57;Sec.8,Rule58;Sec.9,Rule59;Sec.10,Rule60).Forthisreason,theorderoftrial
nowspecificallyprovidesthattheaccusedmaypresentevidence,notonlytoprovehisdefense,butalso
suchdamagesashemayhavesustainedandarisingfromtheissuanceofanyprovisionalremedyinthe
case(Sec.11[b],Rule119;Sec.12,Rule124).
The provisional remedies under this Rule are proper only where the civil action for the recovery of
civilliabilityexdelictohasnotbeenexpresslywaivedortherighttoinstitutesuchcivilactionseparatelyis
notreserved,inthosecaseswheresuchreservationmaybemade.Afortiori,wherethecivilactionhas
actually been instituted, whether such action has been suspended by the subsequent institution of the
criminalaction(Sec.2,Rule111)ormayproceedindependentlyofthecriminalactionbutmaybeapplied
forintheseparatecivilaction.
1276
supra
299
(c) Receivers1279
(e) Support Pendente lite to compel adverse party to provide support while the action
is pending in court.
The application must be verified and shall be set for hearing not more than three (3)
days from the filing of the petition.
1277
Sec.2
Groundsuponwhichattachmentmayissue.
Atthecommencementoftheactionoratanytimebeforeentryofjudgment,aplaintifforanyproper
partymayhavethepropertyoftheadversepartyattachedassecurityforthesatisfactionofanyjudgment
thatmayberecoveredinthefollowingcases:
(a)Inanactionfortherecoveryofaspecifiedamountofmoneyordamages,otherthanmoraland
exemplary,onacauseofactionarisingfromlaw,contract,quasicontract,delictorquasidelictagainsta
partywhoisabouttodepartfromthePhilippineswithintenttodefraudhiscreditors;
(b)Inanactionformoneyorpropertyembezzledorfraudulentlymisappliedorconvertedtohisown
usebyapublicofficer,oranofficeroracorporation,oranattorney,factor,broker,agent,orclerk,inthe
courseofhisemploymentassuch,orbyanyotherpersoninafiduciarycapacity,orforawillfulviolation
ofduty;
(c) In an action to recover the possession of property unjustly or fraudulently taken, detained or
converted, when the property, or any part thereof, has been concealed, removed, or disposed of to
preventitsbeingfoundortakenbytheapplicantoranauthorizedperson;
(d)Inanactionagainstapartywhohasbeenguiltyofafraudincontractingthedebtorincurringthe
obligationuponwhichtheactionisbrought,orintheperformancethereof;
(e)Inanactionagainstapartywhohasremovedordisposedofhisproperty,orisabouttodoso,with
intenttodefraudhiscreditors;or
(f)InanactionagainstapartywhodoesnotresideandisnotfoundinthePhilippines,oronwhom
summonsmaybeservedbypublication.
Rule 57 on preliminary attachment applies on the procedure to secure an attachment in the cases
authorizedunderRule127
1278
SeeIII.CivilProcedure,supra
1279
Ibid.
1280
Ibid.
300
VI. Evidence1281
A. General Principles1282
1. Concept of Evidence
Shall be the same in all courts and in all trials and hearings, except as otherwise
provided by law or the Rules of Court.1285
1281
Rules128134
1282
Rule128
1283
Sec.1
1284
Evidenceisalsosecuredbyresortingtomodesofdiscovery,suchas:
(a)Takingofdepositionsofanyperson,oralorwritten(Rule23);
(b)Servingofinterrogatoriestoparties(Rule25);
(c)Servingofrequestsforadmissionbytheadverseparty(Rule25);
(d)Productionandinspectionofdocuments(Rule27);and
(e)Examinationofphysicalandmentalconditionsofpersons(Rule28).
Amattermayalsobeprovedbymeansofaffidavit,suchasinmotionsbasedonfactsnotappearing
on record, in cases covered by the Rules on Summary Procedure, and those filed in administrative or
quasijudicialbodies.
The basis of evidence is the adaptation to the successful development of the truth; and a rule of
evidenceatonetimethoughnecessarytotheascertainmentoftruthshouldyieldtotheexperienceofa
succeedinggenerationwheneverthatexperiencehasclearlydemonstratedthefallacyorunwisdomofthe
oldrule(Funkvs.US,391).
1285
Sec.2,Rule128
301
The party having the burden of proof must The guilt of the accused has to be proven
prove his claim by a preponderance of beyond reasonable doubt.1287
evidence.1286
These differences constitute exceptions to the rule that the rules of evidence shall be the
same in all courts and in all proceedings.1291
Evidence Proof
1286
Sec.1,Rule133
1287
Sec.2,id.
1288
Sec.27,Rule130
1289
criminalnegligence
1290
Sec.27,Rule133
1291
Sec.2,Rule128
302
6. Admissibility of Evidence
Pertains to the ability of the evidence to be allowed and accepted subject to its
relevancy and competence
1292
Twoaxiomsofadmissibility:
(a)Nonebutfactshavingrationalprobativevalueareadmissible.Itassumesnoparticulardoctrine
as to the kind of ratiocination impliedwhether practical or scientific, coarse and ready or refined and
systematic. It prescribes merely that whatever is presented as evidence shall be presented on the
hypothesisthatitiscalculated,accordingtotheprevailingstandardsofreasoning,toeffectrational
persuasion.
(b) All facts having rational probative value are admissible. This axioms expresses the truth that
legal proof, though it has peculiar rules of its own, does not intendto varywithoutcausefrom what is
generallyacceptedintherationalprocessesoflife;andthatofsuchvariationssomevindicationmay,in
theory,alwaysbedemanded(WigmoreonEvidence,Secs.9,10)
Weightofevidence:
(a) Pertainstotheeffectofevidenceadmitted.
(b)Theprobativevalueofevidencewhichthecourtmaygivetoadmitaftercomplyingwiththerules
ofrelevancyandcompetency.
1293
itdoesnotbelongtothatclassofevidencewhichisexcludedbythelawortherules.
1294
Relevant evidence evidence which has a relation to the fact in issue as to induce belief in its
existenceornonexistence;evidencewhichtendsinanyreasonabledegreetoestablishtheprobabilityor
improbabilityofthefactinissue.
1295
PresumptionsandtheLawofEvidence,3Harv.L.Rev.1314
303
Evidence must have such a relation to the fact in issue as to induce belief in its
existence or non-existence.
Evidence is relevant when it has a relation to the fact in issue as to induce belief in its
existence or non-existence.1296
Evidence on collateral matters1297 shall not be allowed, except when it tends in any
reasonable degree to establish the probability or improbability of the fact in issue.1298
c. Multiple admissibility
When a fact is offered for one purpose, and is admissible in so far as it satisfies all
rules applicable to it when offered for that purpose, its failure to satisfy some other rule
which would be applicable to it if offered for another purpose does not exclude it.1299
d. Conditional admissibility
Where two or more evidentiary facts are so connected under the issues that the
relevancy of one depends upon another not yet evidenced, and the party is unable to
introduce them both at the same moment, the offering counsel may be required by the
court, as a condition precedent
1296
Relevant evidence is one which tends in any reasonable degree to establish the probability or
improbabilityofthefactinissue
TestsofRelevancy:
(a)Everyfactorcircumstancetendingtothrowlightontheissueisrelevant;
(b)Evidenceisrelevantfromwhichthefactinissueislogicallyinferable;
(c)Anycircumstanceisrelevantwhichtendstomakethepropositionatissuemoreorlessprobable,
orwhichiscalculatedtoexplainorestablishfactspertinenttotheinquiry;
(d) The test is whether the evidence conduces to the proof of a pertinent hypothesis, such
hypothesisbeingonewhich,ifsustained,wouldlogicallyinfluencetheissue;
(e) The facts are relevant if they fairly tend to prove the offense charged (Underhills Criminal
Evidence,5thEd.,Vol.I).
1297
Collateralmattersarethoseotherthanthefactsinissueandwhichareofferedasbasisforinference
astotheexistenceornonexistenceofthefactsinissue(1Wigmore432).
(a)Prospectantcollateralmattersthoseprecedingofthefactinissue butpointingforwardtoit,
likemoralcharacter,motive,conspiracy;
(b) Concomitant collateral matters those accompanying the fact in issue and pointing to it, like
alibi,oropportunityandincompatibility;
(c)Retrospectantcollateralmattersthosesucceedingthefactinissuebutpointingbackwardtoit,
like flight and concealment, behavior of the accused upon being arrested, fingerprints or footprints,
articlesleftatthesceneofthecrimewhichmayidentifytheculprit(1Wigmore44243).
1298
Sec.4,Rule128
1299
WigmoresCodeofEvidence,3rdEd.,p.18
304
e. Curative admissibility
Where an inadmissible fact has been offered by one party and received without
objection, and the opponent afterwards, for the purpose of negativing or examining or
otherwise counteracting it, offers a fact similarly inadmissible, such fact is admissible if it
serves to remove an unfair effect upon the court which might otherwise ensue from the
original fact.
If the opponent made a timely objection at the time the inadmissible evidence was
offered, and his objection was erroneously overruled in the first instance, the claim to
present similar inadmissible facts would be untenable since his objection would save him, on
appeal, from any harm which may accrue.1301
That which proves the fact in dispute The proof of facts from which, taken
without the aid of any inference or collectively, the existence of the particular
presumption. fact in dispute may be inferred as a necessary
or probable consequence.
That which affirms the occurrence of an When the evidence denies the occurrence of
event or existence of a fact.1303 an event or existence of a fact.1304
1300
If a promise thus made is not fulfilled, the court may strike out the evidence thus conditionally
admitted, if a motion is made by the opposite party. Thus, evidence of facts and declarations may not
becomematerialor admissible until shown tobethose ofan agent of the otherparty, anda copy of a
writingmaynotbecomecompetentevidenceuntiltheoriginalisproventobelostordestroyed.Evidence
whichappearstobeimmaterialisadmittedbythecourtsubjecttotheconditionthatitsconnectionwith
otherfactssubsequentlytobeprovedwillbeestablished(Peoplevs.Yatco,97Phil.940
1301
McCormickonEvidence,p.35
1302
1Wigmore304309
1303
aswhenawitnessdeclaresthattherewasnofightwhichtookplace.
1304
as when the accused presents witnesses who testify that the accused was at their party when the
crimewascommitted.
Denialsandalibisarenegativeevidence.
305
The general rule is that positive evidence prevails over negative evidence, or that a
positive assertion is given more weight over a plain denial.
One that is not excluded by law or the One that is worthy of belief; trustworthy
rules.1305 evidence.1306
Denotes the personal qualification of the Denotes the veracity of the testimony
witness
Burden of proof1308 is the duty of a party to present evidence on the facts in issue
necessary to establish his claim or defense by the amount of evidence required by law.1309
Denotes the duty of establishing the truth of The necessity of going forward with the
a given proposition or issue by such evidence to meet the prima facie case created
quantum of evidence as the law demands in against him.
the case in which the issue arises, whether
civil or criminal.
1305
In the law of evidence, competency means the presence of those characteristics, or the absence of
those disabilities,whichrenderawitnesslegally fitandqualifiedtogivetestimonyinacourtofjustice;
which is applied, in the same sense, to documents or other written evidence (Blacks Law Dictionary).
Exclusionaryrulemakesevidenceillegallyobtainedasinadmissibleinevidence,hence,notcompetent.
1306
BlacksLawDictionary,9thEd.
1307
Trialcourtsmayallowapersontotestifyasawitnessuponagivenmatterbecauseheiscompetent,
butmaythereafterdecidewhethertobelieveornottobelievehistestimony.Credibilitydepends
ontheappreciationofhistestimonyandarisesfromthebriefconclusionofthecourtthatsaidwitnessis
tellingthetruth(Gonzalesvs.CA,90SCRA183).
1308
alsotermedonusprobandi
1309
Sec.1,Rule131
306
It remains with the party alleging facts and It shifts from side to side as the trial of the
never shifts to the other party. He who case progresses and evidence is introduced
alleges the affirmative of the issue has the by the respective parties.
burden of proof, and the same never parts.
8. Presumptions
Species of evidence which may prove certain issues in dispute. They are either
conclusive or disputable.
a. Conclusive presumption
Instances:
(a) Whenever a party has, by his own declaration, act, or omission, intentionally and
deliberately led another to believe a particular thing true, and to act upon such belief, he
cannot, in anylitigation arising out of such declaration, act or omission, be permitted to
falsify it:
(b) The tenant is not permitted to deny the title of his landlord at the time of the
commencement of the relation of landlord and tenant between them.
b. Disputable presumption1311
An inference drawn from certain facts that establish a prima facie case which may be
overcome by the introduction of contrary evidence.1312
(c) That a person intends the ordinary consequences of his voluntary act;
1310
BlacksLawDictionary,9thEd.
Itissometimesreferredtoasirrebuttablepresumption.
1311
Juristantum
1312
BlacksLawDictionary,9thEd.
307
(f) That money paid by one to another was due to the latter;
(i) That prior rents or installments had been paid when a receipt for the later ones is
produced;
(j) That a person found in possession of a thing taken in the doing of a recent
wrongful act is the taker and the doer of the whole act; otherwise, that thing which a person
possesses, or exercises acts of ownership over, are owned by him;
(k) That a person in possession of an order on himself for the payment of the
money, or the delivery of anything, has paid the money or delivered the thing accordingly;
(1) That a person acting in a public office was regularly appointed or elected to it;
(n) That a court, or judge acting as such, whether in the Philippines or elsewhere,
was acting in the lawful exercise of jurisdiction;
(o) That all the matters within an issue raised in a case were laid before the court and
passed upon by it; and in like manner that all matters within an issue raised in a dispute
submitted for arbitration were laid before the arbitrators and passed upon by them;
(s) That a negotiable instrument was given or indorsed for a sufficient consideration;
(t) That an indorsement of a negotiable instrument was made before the instrument
was overdue and at the place where the instrument is dated;
(v) That a letter duly directed and mailed was received in the regular course of the
mail;
(w) That after an absence of seven (7) years, it being unknown whether or not the
absentee still lives, he is considered dead for all purposes, except for those of succession.
The absentee shall not be considered dead for the purpose of opening his succession
till after an absence of ten (10) years. If he disappeared after the age of seventy-five (75)
308
years, an absence of five (5) years shall be sufficient in order that his succession may be
opened.1313
(x) That acquiescence resulted from a belief that the thing acquiesced in was
conformable to the law or fact;
(y) That things have happened according to the ordinary course of nature and the
ordinary habits of life;
(z) That persons acting as co-partners have entered into a contract of co-partnership;
(aa) That a man and woman deporting themselves as husband and wife have entered
into a lawful contract of marriage;
(bb) That property acquired by a man and a woman who are capacitated to marry
each other and who live exclusively with each other as husband and wife without the benefit
of marriage or under a void marriage, has been obtained by their joint efforts, work or
industry.
(cc) That in cases of cohabitation by a man and a woman who are not capacitated to
marry each other and who have acquired property through their actual joint
contribution of money, property or industry, such contributions and their
corresponding shares including joint deposits of money and evidences of credit are equal.
(dd) That if the marriage is terminated and the mother contracted another marriage
within three hundred (300) days after such termination of the former marriage, these rules
shall govern in the absence of proof to the contrary:
(1) A child born before one hundred eighty (180) days after the
solemnization of the subsequent marriage is considered to have been conceived
during the former marriage, provided it be born within three hundred days after the
termination of the former marriage;
1313
Thefollowingshallbeconsidereddeadforallpurposesincludingthedivisionoftheestateamongthe
heirs:
(1)Apersononboardavessellostduringaseavoyage,oranaircraftwhichismissing,whohasnot
beenheardofforfour(4)yearssincethelossofthevesseloraircraft;
(2)Amemberofthearmedforceswhohastakenpartinarmedhostilities,andhasbeenmissingfor
four(4)years;
(3)Apersonwhohasbeenindangerofdeathunderothercircumstancesandwhoseexistence
hasnotbeenknownforfour(4)years;
(4) If a married person has been absent for four (4) consecutive years, the spouse present may
contractasubsequentmarriageifheorshehasawellfoundedbeliefthattheabsentspouseisalready
dead. In case of disappearance, where there is danger of death under the circumstances hereinabove
provided,anabsenceofonlytwo(2)yearsshallbesufficientforthepurposeofcontractingasubsequent
marriage. However, in any case, before marrying again, the spouse present must institute a summary
proceedingasprovidedintheFamilyCodeandintherulesforadeclarationofpresumptivedeathofthe
absentee,withoutprejudicetotheeffectofreappearanceoftheabsentspouse.
309
(2) A child born after one hundred eighty (180) days following the
celebration of the subsequent marriage is considered to have been conceived during
such marriage, even though it be born within the three hundred (300) days after the
termination of the former marriage.
(ee) That a thing once proved to exist continues as long as is usual with things of that
nature;
(ii) That a trustee or other person whose duty it was to convey real property to a
particular person has actually conveyed it to him when such presumption is necessary to
perfect the title of such person or his successor in interest;
(jj) That except for purposes of succession, when two (2) persons perish in the same
calamity, such as wreck, battle, or conflagration, and it is not shown who died first, and there
are no particular circumstances from which it can be inferred, the survivorship is determined
from the probabilities resulting from the strength and age of the sexes, according to the
following rules:
1. If both were under the age of fifteen (15) years, the older is deemed to
have survived;
2. If both were above the age of sixty (60), the younger is deemed to have
survived;
3. If one is under fifteen (15) and the other above sixty, the former is deemed
to have survived;
4. If both be over fifteen (15) and under sixty (60), and the sex be different,
the male is deemed to have survived; if the sex be the same, the older;
5. If one be under fifteen (15) or over sixty (60), and the other between those
ages, the latter is deemed to have survived.
(kk) That if there is a doubt, as between two (2) or more persons who are called to
succeed each other, as to which of them died first, whoever alleges the death of one prior to
310
the other, shall prove the same; in the absence of proof, they shall be considered to have
died at the same time.1314
Such equitable construction as will enlarge the letter of rule to accomplish its
intended purpose, carry out its intent, or promote justice. It is that construction which
expands the meaning of the rule to meet cases which are clearly within the spirit or reason
thereof or which gives a rule its generally accepted meaning to the end that the most
comprehensive application thereof may be accorded, without doing violence to any of its
terms.
In short, liberal construction means that the words should receive a fair and
reasonable interpretation, so as to secure a just, speedy and inexpensive disposition of every
action or proceeding.1315
In the hierarchy of evidentiary values, the highest is proof beyond reasonable doubt,
followed by clear and convincing evidence, preponderance of evidence, and substantial
evidence, in that order.1317
a. Proof beyond reasonable doubt1318
That which is the logical and inevitable result of the evidence on record, exclusive of
any other consideration, of the moral certainty of the guilt of the accused or that degree of
proof which produces conviction in an unprejudiced mind.
It does not mean such degree of proof as, excluding possibility of error, produces
absolute certainty. Moral certainty only is required.1319
1314
Sec.3
1315
Agpalo,StatutoryConstruction,p.287[1998]
Court litigations are primarily for the search of truth, and a liberal interpretation of the rules by which
both parties are given the fullest opportunity to adduce proofs is the best way to ferret out the truth
(Peoplevs.Ebias,342SCRA675).
1316
WeightAndSufficiencyofEvidence,Rule133
1317
Manalovs.RoldanConfessor,215SCRA808;ERBvs.CA,357SCRA30[2001]
1318
requiredforconvictionofanaccusedinacriminalcase
1319
Peoplevs.Bacalso,191SCRA557[1991]
311
b. Preponderance of evidence1320
That which is of greater weight or more convincing than that which is offered in
opposition to it.1321
It means probably the truth. It is evidence which is more convincing to the court as
worthy of belief than that which is offered in opposition thereto.1322
c. Substantial evidence1323
1320
thedegreeofevidencerequiredincivilcases
1321
It is considered as synonymous with the terms greater weight of evidence or greater weight of
credibleevidence.
1322
Republicvs.CA,204SCRA160[1991]
1323
required to reach a conclusion in administrative proceedings or to establish a fact before
administrativeandquasijudicialbodies
1324
Velasquezvs.Nery,211SCRA28[1992]
Itmeansmorethanascintillabutmaybesomewhatlessthanpreponderance,evenifotherreasonable
mindsmightconceivablyopineotherwise(Manalovs.RoldanConfessor,supra).
1325
BlacksLawDictionary,9thEd.
For instance, to contradict the presumption of validity and regularity in favor of a notarial or public
document, there must be evidence that is clear, convincing and more than preponderant. The
presumption that law enforcers have regularly performed their duties requires that proof of frameup,
which can be made with ease, must be strong, clear and convincing (People vs. Tranca, 235 SCRA 455
[1994]).Anaccusedwhoinvokesselfdefensemustproveitbyclearandconvincingevidence(Peoplevs.
Sazon,189SCRA700[1990]).
312
1. Mandatory
The existence and territorial extent of states, their political history, forms of
government and symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of the Philippines,
the official acts of the legislative, executive and judicial departments of the Philippines, the
laws of nature, the measure of time, and the geographical divisions.1327
2. Discretionary
3. Judicial Admissions
Does not require proof.1329The admission may be contradicted only by showing that
it was made through palpable mistake or that no such admission was made.1330
1326
Rule129
1327
Sec.1
1328
Sec.2
1329
Anadmission,verbalorwritten,madebyapartyinthecourseoftheproceedingsmustbeinthesame
case.
1330
Sec.4
Judicial admissions are those so made in the pleadings filed or in the progress of a trial (Jones on
Evidence,Sec.894).
Judicial admissions are conclusive upon the party making them, while extrajudicial admissions or
otheradmissionsare,asarule,andwheretheelementsofestoppelarenotpresent,disputable.
Judicial admissions may be verbal or those verbally made in the course of the trial or they may be
written, such as those stated in a pleading. They may be express or implied, implied admissions by a
defendantofmaterialfactsallegedinacomplaintinclude
(a)keepingsilentonsuchmaterialfacts,
(b)denyingsuchmaterialfactswithoutsettingforththemattersuponwhichhereliestosupporthis
denial,and
(c)assertinglackofknowledgeorinformationofthetruthofthematerialallegationswhenthesame
isplainlyandnecessarilywithintheknowledgeofdefendant.
313
(1) when it is shown that the admission was made through palpable mistake; or
(2) when it is shown that no such admission was in fact made.1331
The question as to what are the laws of a foreign state is one of fact, not of law.
Foreign laws may not be taken judicial notice of and have to be proved like any other fact,1332
except where said laws are within the actual knowledge of the court.1333
To prove the foreign law, the requirements of Secs. 24 and 25, Rule 132 must be
complied with, that is, by an official publication or by a duly attested and authenticated copy
thereof. The provisions of the foreign law may also be the subject of judicial admission
under Sec. 4,1334 Rule 129. Absent any of the foregoing evidence or admission, the foreign
law is presumed to the same as that in the Philippines, under the so-called doctrine of
processual presumption.1335
When a foreign law is part of a published treatise, periodical or pamphlet and the
writer is recognized in his profession or calling as expert in the subject, the court may take
judicial notice of the treatise containing the foreign law.1336
When a foreign law refers to the law of nations, said law is subject to mandatory
judicial notice under Sec. 1,1337 Rule 129.
1331
Theseexceptionsmaynegatetheadmission.
But before the court may allow a party to relieve him of the effects of admissions or to withdraw
therefrom, he has to show, by proper motion, justifiable reason or palpable mistake (Sun Brothers
Appliances,Inc.vs.Caluntad,16SCRA895).
1332
InreEstateofJohnson,39Phil.156
1333
suchaswhentheyarewellandgenerallyknownortheyhavebeenactuallyruleduponinothercases
beforeitandnoneofthepartiesclaimotherwise(Phil.Commercial&IndustrialBankvs.Escolin,L27936,
03/29/74)
1334
Anadmission,verbalorwritten,madebythepartyinthecourseoftheproceedingsinthesamecase,
does not require proof. The admission may be contradicted only by showing that it was made through
palpablemistakeorthatnosuchadmissionwasmade.
1335
CollectorofInternalRevenuevs.Fisher,L11622,01/28/61)
1336
Sec.46,Rule130
1337
supra
314
Under the Philippine Constitution, the Philippines adopts the generally accepted
principles of international law as part of the law of the land.1338They are therefore technically
in the nature of local laws and hence, are subject to a mandatory judicial notice.
MTCs must take judicial notice of municipal ordinances in force in the municipality
in which they sit.1339
RTCs should also take judicial notice of municipal ordinances in force in the
municipalities within their jurisdiction but only when so required by law.1340
Such court must take judicial notice also of municipal ordinances on appeal to it
from the inferior court in which the latter took judicial notice.1341
The Court of Appeals may take judicial notice of municipal ordinances because
nothing in the Rules prohibits it from taking cognizance of an ordinance which is capable of
unquestionable demonstration.1342
C. ObjectEvidence1343
Real evidence refers to the thing or fact or material or corporate object or human
body parts thereof, which can be viewed or inspected by the court and which a party may
present in evidence
Real evidence is also called autoptic preference, which is inspection by the court of
a thing itself and its conditions, to enable the court to effectively exercise its judicial power
of receiving and weighing the evidence.1345
1338
Sec.2,Art.II
1339
USvs.Blanco,37Phil.126
1340
Forinstance,thecharterofCityofManilarequiresallcourtssittingthereintotakejudicialnotice
ofallordinancespassedbythecitycouncil(CityofManilavs.Garcia,19SCRA413)
1341
USvs.Hernandez,31Phil.542
1342
Gallegovs.People,8SCRA813
1343
RealEvidence(Rule130)
1344
Whenanobjectisrelevanttothefactinissue,itmaybeexhibitedto,examinedorviewedbythecourt
(Sec.1)
1345
Tiglaovs.Comelec,34SCRA456
It is knowledge acquired by the court from inspection or by direct selfperception or autopsy of the
evidence(Caldevs.CA,233SCRA376)
The evidence of ones own senses, furnishes the strongest probability and indeed the only perfect and
indubitable certainty of the existence of any sensible fact. Physical evidence is evidence of the highest
order.Itspeaksmoreeloquentlythanahundredwitnesses.
315
4. Demonstrative Evidence
The inspection may be made inside or outside the courtroom. An inspection or view
outside the courtroom should be made in the presence of the parties or at least with
previous notice to them.1354
1346
Theremustbealogicalconnectionbetweentheevidenceandthepointatwhichitisoffered.
1347
Itshouldnotbeexcludedbylawortherules.
1348
Authentication normally consists of showing that the object is the object that was involved in the
underlyingevent.
1349
forpurposesofauthenticationofanobjectorforlayingthefoundationfortheexhibit
1350
uniqueobjects
1351
objectsmadeunique
1352
nonuniqueobjects
1353
Thefoundationfordemonstrativeevidencedoesnotinvolveshowingthattheobjectwastheoneused
in the underlying event. Rather, the foundation generally involves showing that the demonstrative
objectfairlyrepresentsorillustrateswhatitisallegedtoillustrate.
Common types of demonstrative evidence include photographs, motion pictures and recordings, xray
pictures, scientific tests, demonstrations and experiments, maps, diagrams, models, summaries, and
othermaterialscreatedespeciallyforthelitigation.
Incontrasttodemonstrativeevidence,objectevidenceisatangibleobjectthatplayedsomeactualrolein
thematterthatgaverisetothelitigation.Thedistinctionbetweenobjectanddemonstrativeevidenceis
important because it helps determine the standards that the evidence must meet to be admissible. In
particular,thefoundationthatmustbelaidforobjectevidenceisgenerallysomewhatdifferentfromthat
neededfordemonstrativeevidence.
1354
It is error for the judge for example, to go alone to the land in question, or to the place where the
crimewascommittedandtakeaviewwithoutthepreviousknowledgeoftheparties.Suchinspectionor
316
The PDEA shall take charge and have custody of all dangerous drugs, plant sources
of dangerous drugs, controlled precursors and essential chemicals, as well as
instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or
surrendered, for proper disposition in the following manner:
(1) The apprehending team having initial custody and control of the drugs shall,
immediately after seizure and confiscation, physically inventory and photograph the same in
the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/herrepresentative or counsel, a representative from the media and the DOJ,
and any elected public official who shall be required to sign the copies of the inventory and
be given a copy thereof;
(4) After the filing of the criminal case, the Court shall, within 72 hours, conduct an
ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant
sources of dangerous drugs, and controlled precursors and essential chemicals,
including the instruments/ paraphernalia and/or laboratory equipment, and through
the PDEA shall within 24 hours thereafter proceed with the destruction or burning of the
same, in the presence of the accused or the person/s from whom such items were
confiscated and/or seized, or his/her representative or counsel, a representative from the
media and the DOJ, civil society groups and any elected public official. The Board shall draw
up the guidelines on the manner of proper disposition and destruction of such item/s which
shall be borne by the offender: Provided, that those item/s of unlawful commerce, as
determined by the Board, shall be donated, used or recycled for legitimate purposes:
Provided further, that a representative sample, duly weighed and recorded is retained;
(5) The Board shall then issue a sworn certification as to the fact of destruction or
burning of the subject item/s which, together with the representative sample/s in the
viewispartofthetrialsinceevidenceistherebybeingreceived(Moran,CommentsontheRulesofCourt,
Vols.5,7879)
317
custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all
instances, the representative sample/s shall be kept to a minimum quantity as determined by
the Board; and
(7) After the promulgation and judgment in the criminal case wherein the
representative sample/s was presented as evidence in court, the trial prosecutor shall inform
the Board of the final termination of the case and, in turn, shall request the court for leave to
turn over the said representative sample/s to the PDEA for proper disposition and
destruction within 24 hours from receipt of the same.
a. Meaning of DNA
The appropriate court may, at any time, either motu proprio or on application of any
person who has a legal interest in the matter in litigation, order a DNA testing.
Such order shall issue after due hearing and notice to the parties upon a showing of
the following:
1355
A.M.No.06115SC
1356
ThetotalityofanindividualsDNAisuniquefortheindividual,exceptidenticaltwins(Sec.3)
DNA evidence constitutes the totality of the DNA profiles, results and other genetic information
directlygeneratedfromDNAtestingofbiologicalsamples.
DNAprofilemeansgeneticinformationderivedfromDNAtestingofabiologicalsampleobtainedfrom
aperson,whichbiologicalsampleisclearlyidentifiableasoriginatingfromthatperson;
DNAtestingmeansverifiedandcrediblescientificmethodswhichincludetheextractionofDNAfrom
biologicalsamples,thegenerationofDNAprofilesandthecomparisonoftheinformationobtainedfrom
theDNAtestingofbiologicalsamplesforthepurposeofdetermining,withreasonablecertainty,
whether or not the DNAobtained fromtwo or moredistinct biological samples originates from the
sameperson(directidentification)orifthebiologicalsamplesoriginatefromrelatedpersons(kinship
analysis).
318
2) Was previously subjected to DNA testing but the results may require
confirmation for good reasons;
(d) The DNA testing has the scientific potential to produce new information that is
relevant to the proper resolution of the case; and
(e) The existence of other factors, if any, which the court may consider as potentially
affecting the accuracy or integrity of the DNA testing.
This rule shall not preclude a DNA testing, without need of prior court order, at the
behest of any party, including law enforcement agencies, before a suit or proceeding is
commenced.1357
1357
Sec.4
1358
Sec.6
1359
Sec.10
Ifthecourtfinds,afterduehearing,thatthepetitionismeritorious,itshallreverseormodifythe
judgmentofconvictionandorderthereleaseoftheconvict,unlesscontinueddetentionisjustifiedfora
lawfulcause.
319
(a) The chain of custody, including how the biological samples were collected, how
they were handled, and the possibility of contamination of the samples;
(b) The DNA testing methodology, including the procedure followed in analyzing
the samples, the advantages and disadvantages of the procedure, and compliance with the
scientifically valid standards in conducting the tests;
The provisions of the Rules of Court concerning the appreciation of evidence shall
apply suppletorily.1360
(d) The existence and maintenance of standards and controls to ensure the
correctness of data generated;
1360
Sec.7
1361
thatis,whetherthetheoryortechniquecanbeandhasbeentested.
1362
Sec.8
320
D. Documentary Evidence1363
The best evidence refers to that which the law or the rules consider as the best
evidence to prove the fact in dispute. The best evidence is the evidence which the case in its
nature is susceptibleand which is within the power of the party to produce. Evidence cannot
be received which indicates on its face that it is secondary1367and that the original source of
information is in existence and accessible.1368
b. When applicable
(a) When the original has been lost or destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable notice;
(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be established
from them is only the general result of the whole; and
1363
A document is defined as a deed, instrument or other duly notarized paper by which something is
proved,evidencedorsetforth.Anyinstrumentnotarizedbyanotarypublicoracompetentpublicofficial,
withthesolemnitiesrequiredbylaw,isapublicdocument.
Pleadings filed in a case and in the custody of the clerk of court are public documents. All other
documentsareprivatedocuments(Bermejovs.Barrios,31SCRA764).
1364
22CJ791
Documents as evidence consist of writings or any material containing letters, words, numbers, figures,
symbolsorothermodesofwrittenexpressionsofferedasproofoftheircontents(Sec.2,Rule130).
1365
SeeObjectevidence,supra
1366
WhartonsCriminalEvidence,11thEd.
1367
thatis,merelysubstitutionaryinitsnature
1368
Theunderlyingpurposeisthepreventionoffraud(29Am.Jur.508)
321
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.1369
c. Meaning of original
(b) When a document is in two or more copies executed at or about the same time,
with identical contents, all such copies are equally regarded as originals; and
(c) When an entry is repeated in the regular course of business, one being copied
from another at or near the time of the transaction, all the entries are likewise equally
regarded as originals.1370
Does not necessarily mean the one first written; its meaning is relative only to the
particular issue. The original is the document whose contents are to be proved.1371
1369
Sec.3
1370
Sec.4
1371
Wigmore
1372
Seealsod.Whenapplicable,supra
1373
Bautistavs.CA,165SCRA507
Procedurebeforesecondaryevidencemaybeintroduced:
(a)Theofferorshouldpresentevidencethattheoriginaldocumenthasbeenlostordestroyedandis
thereforenotavailable;
(b)Heshouldprovethedueexecutionorexistenceofsaiddocument,inaccordancewithSec.20of
Rule132;
(c)Hemustshowproofofthecontentsofthedocumentbyacopy,orbyarecitalofitscontentsin
someauthenticdocument,orbythetestimonyofwitnessesintheorderstated.
Whentheoriginaldocumenthasbeenlostordestroyed,orcannotbeproducedincourt,theofferor,
uponproofofitsexecutionorexistenceandthecauseofitsunavailabilitywithoutbadfaithonhispart,
mayproveitscontentsbyacopy,orbyarecitalofitscontentsinsomeauthenticdocument,orbythe
testimonyofwitnessesintheorderstated(Sec.5)
Ifthedocumentisinthecustodyorunderthecontroloftheadverseparty,hemusthavereasonable
noticetoproduceit.Ifaftersuchnoticeandaftersatisfactoryproofofitsexistence,hefailstoproduce
thedocument,secondaryevidencemaybepresentedasinthecaseofitsloss(Sec.6).
Whentheoriginalofadocumentisinthecustodyofapublicofficerorisrecordedinapublicoffice,
itscontentsmaybeprovedbyacertifiedcopyissuedbythepublicofficerincustodythereof(Sec.7).
322
(a) The reliability of the manner or method in which it was generated, stored or
communicated, including but not limited to input and output procedures, controls, tests
and checks for accuracy and reliability of the electronic data message or document, in the
light of all thecircumstances as well as any relevant agreement;
(b) The reliability of the manner in which its originator was identified;
(d) The familiarity of the witness or the person who made the entry with the
communication and information system;
(e) The nature and quality of the information which went into the communication
and informationsystem upon which the electronic data message or electronic document was
based; or
(f) Other factors which the court may consider as affecting the accuracy or integrity
of the electronic document or electronic data message.1377
1374
A.M.No.01701SC
1375
Sec.1(g),Rule2
1376
Sec.2
Wheneveraruleofevidencetothetermofwriting,document,record,instrument,memorandumorany
otherformofwriting,suchtermshallbedeemedtoincludeanelectronicdocument(Sec.1,Rule3)
1377
Sec.1,Rule7
323
the affiant or based on authentic records. The affidavit must affirmatively show the
competence of the affiant to testify on the matters contained therein.1378
The affiant shall be made to affirm the contents of the affidavit in open court and
may be cross-examined as a matter of right by the adverse party.1379
(1) By evidence that it had been digitally signed by the person purported to have
signed the same; or
(2) By evidence that other appropriate security procedures or devices1380 were
applied to the document; or
(3) By other evidence showing its integrity and reliability to the satisfaction of the
1381
judge.
Authentication of an electronic signature:
(a) By evidence that a method or process was utilized to establish a digital signature
and verify the same; or
1378
Sec.1,Rule9
1379
Sec.2
1380
asmaybeauthorizedbytheSupremeCourtorbylawforauthenticationofelectronicdocuments
1381
Ibid.
AdocumentelectronicallynotarizedinaccordancewiththerulespromulgatedbytheSupremeCourtshall
beconsideredasapublicdocumentandprovedasanotarialdocumentundertheRulesofCourt(Sec.3)
1382
Sec.2
Upontheauthenticationofanelectronicsignature,itshallbepresumedthat:
(a)Theelectronicsignatureisthatofthepersontowhomitcorrelates;
(b) The electronic signature was affixed by that person with the intention of authenticating or
approving the electronic document to which it is related or to indicate such persons consent to the
transactionembodiedtherein;and
(c)Themethodsorprocessesutilizedtoaffixorverifytheelectronicsignaturewithouterrororfault
(Sec.3)
UpontheauthenticationofaDigitalsignature,itshallbepresumed,inadditiontothosementioned,
that:
(a)Theinformationcontainedinacertificateiscorrect;
(b)Thedigitalsignaturewascreatedduringtheoperationalperiodofacertificate;
(c)Themessageassociatedwithadigitalsignaturehasnotbeenalteredfromthetimeitwassigned;
and
(d)Acertificatehadbeenissuedbythecertificationauthorityindicatedtherein(Sec.4)
324
Copies or duplicates shall not be admissible to the same extent as the original if:
1383
Sec.1,Rule6
1384
Sec.1(h),Rule2
ForpurposesoftheseRules,thetermelectronicdocumentmaybeusedinterchangeablywithelectronic
datamessage.
1385
undertheBestEvidenceRule
1386
Sec.1,Rule4
Whenadocumentisintwoormorecopiesexecutedatoraboutthesametimewithidenticalcontents,or
is a counterpart produced by the same impression as the original, or from the same matrix, or by
mechanicalorelectronicrerecording,orbychemicalreproduction,orbyotherequivalenttechniques
whichaccuratelyreproducestheoriginal,suchcopiesorduplicatesshallberegardedastheequivalent
oftheoriginal.
1387
Sec.2,Rule4
1388
allofwhichareshownbythetestimonyofthecustodianorotherqualifiedwitnesses
1389
Sec.1,Rule8
325
The presumption provided for in Sec. 1,1390 Rule 8, may be overcome by evidence of
the untrustworthiness of the source of information of the method or circumstances of the
preparation, transmission or storage thereof.1391
The rule states that when the terms of an agreement have been reduced to writing, it
is considered as containing all the terms agreed upon, and there can be between the parties
and their successors in interest, no evidence of such terms other than the contents of the
written agreement.1397
1390
supra
1391
Sec.2,id.
1392
Sec.1,Rule11
1393
Sec.1(k),Rule2
1394
authenticationofelectronicdocuments
1395
Sec.2,id.
1396
Rule130
1397
Itseekstopreservewhatthepartieshavereducedinwritingandprohibitsevidencealliundeororal
testimonial evidence from being presented to vary the terms of, or add stipulations to, the written
agreement.(Gawvs.IAC,220SCRA405)
In other words, any oral evidence of an agreement should be excluded when the existing agreement is
alreadyinwriting(CongregationsoftheReligiousoftheVirginMaryvs.CA,291SCRA385).
1398
Goldbandvs.Allen,245Mass.143
The rule is based on the presumption that the parties have made the written instrument the only
repositoryandmemorialofthetruthandwhateverisnotfoundintheinstrumentmusthavebeenwaived
326
As long as the pleader puts in issue in the pleading, any of the matters set forth in the
rule, such as:
(b) The failure of the written agreement to express the true intent and agreement of
the parties thereto;
(d) The existence of other terms agreed to by the parties or their successors in
interest after the execution of the written agreement.1400
Secondary evidence is offered to prove the The purpose for the offer is to change, vary,
contents of a writing, which is not allowed modify, qualify, or contradict the terms of a
unless the case falls under any of the complete written agreement, which is not
exceptions allowed unless the case falls under any of the
exceptions.
Establishes preference for the original Not concerned with the primacy of evidence
document over a secondary evidence but presupposes that the original is available.
thereof.
andabandonedbytheparties.Hence,parolevidencecannotservethepurposeofincorporationintothe
contractadditionalcontemporaneousconditionswhicharenotmentionedatallinthewriting,unlessthe
casefallsunderanyoftheexceptionstotherule(Cuvs.CA,195SCRA647).
Oraltestimonycannotprevailoverawrittenagreementoftheparties,thepurposebeingtogivestability
towrittenagreementsandtoremovethetemptationandpossibilityofperjury,whichwouldbeafforded
ifparolevidencewereadmissible.
1399
Introducingparolevidencemeansofferingextrinsicorextraneousevidencethatwouldmodify,explain
oraddtothetermsofthewrittenagreement.
1400
Theterm"agreement"includeswills.
327
Can be invoked only be the parties to the Can be invoked by any litigant to an action
document and their successors in interest. whether or not said litigant is a party to the
document involved.
a. Meaning of authentication
Admissible in evidence without further proof Must be proved as to their due execution
of their due execution or genuineness and authenticity before they may be received
as evidence.
Evidence even against a third person of the Bind only the parties who executed them or
fact which gave rise to their due execution their privies, insofar as due execution and
and to the date of the latter. date of the document are concerned.
Certain agreements require that they should Valid as to agreement between parties, unless
be in a public instrument1404 to be valid and otherwise disallowed by law.
effective, such as sale of real property.
Include the written official acts, or records. Every deed or instrument executed by a
private person, without the intervention of a
public notary or other person legally
authorized, by which document some
disposition or agreement is proved,
evidenced or set forth.
1401
contracts
1402
Rule132
1403
Onewhichisexecutedbythepartieswithouttheinterventionofapublicnotaryoradulyauthorized
publicofficial,bywhichsomedispositionoragreementisproved,evidencedorsetforth.
1404
inwritingandnotarized
328
Before any private document offered as authentic is received in evidence, its due
execution and authenticity must be proved either:
Being a private document, its due execution and authenticity must first be
established, by one of the parties thereto, by the testimony of anyone who saw the writing
executed, by evidence of the genuineness of the handwriting of the maker thereof.1405
Any other private document need only be identified as that which it is claimed to
be.1406
They include:
1405
Ongvs.People,342SCRA372
1406
Sec.20
1407
ancientdocuments
Anancientdocumentisonethatis:
(a)Morethanthirty(30)yearsold;
(b)Foundinthepropercustody;
(c)Unblemishedbyanyalterationorbyanycircumstanceofsuspicion;and
(d)Itmustonitsfaceappeartobegenuine(Cequenavs.Bolante,330SCRA216).
1408
Sec.21
Theymaythusbepresentedinevidencelikepublicdocuments.
1409
Ibid.
1410
Chuavs.CA,206SCRA339
329
(b) He has seen the writing purporting to be his upon which the witness has acted
or been charged, and has thus acquired knowledge of the handwriting of such person;
(c) By a comparison made by the witness or the court, with writings admitted or
treated as genuine by the party against whom the document is offered, or proved to be
genuine to the satisfaction of the judge.1411
The record of public documents referred to in paragraph (a)1414 of Section 19, when
admissible for any purpose, may be evidenced
1411
HeirsofAmadoCelestialvs.HeirsofEdithaCelestial,GR142691,08/05/03.
Thehandwritingofapersonmaybeprovedbyanywitnesswhobelievesittobethehandwritingofsuch
person because hehas seen the personwrite, orhasseenwriting purportingto be his upon which the
witnesshasactedorbeencharged,andhasthusacquiredknowledgeofthehandwritingofsuchperson.
Evidence respecting the handwriting may also be given by a comparison, made by the witness or the
court,withwritingsadmittedortreatedasgenuinebythepartyagainstwhomtheevidenceisoffered,or
provedtobegenuinetothesatisfactionofthejudge(Sec.22,Rule132).
The test of genuineness ought to be the resemblance, not the formation of letters in some other
specimens but to the general character of writing, which is impressed on it as the involuntary and
unconsciousresultofconstitution,habitorotherpermanentcourse,andis,therefore,itselfpermanent.
Theidentificationofhandwritingshouldnotrest,therefore,ontheapparentsimilarityordissimilarityof
one feature but should be based on the examination of all the basic characteristics of the handwriting
understudy(Peoplevs.Agresor,320SCRA302).
1412
Publicdocumentsare:
(a)Thewrittenofficialacts,orrecordsoftheofficialactsofthesovereignauthority,officialbodiesand
tribunals,andpublicofficers,whetherofthePhilippines,orofaforeigncountry;
(b)Documentsacknowledgedbeforeanotarypublicexceptlastwillsandtestaments;and
(c)Publicrecords,keptinthePhilippines,ofprivatedocumentsrequiredbylawtobeenteredtherein
(Sec.19).
Publicdocumentsareoftwoclasses:
(a)Thoseissuedbycompetentpublicofficialsbyreasonoftheiroffice,and
(b)Thoseexecutedbyprivateindividualswhichareauthenticatedbynotariespublic(IntestateEstate
ofParejavs.Pareja,95Phil.167).
1413
Sec.23
1414
Thewritten officialacts, or records of the officialactsof thesovereign authority, official bodies and
tribunals,andpublicofficers,whetherofthePhilippines,orofaforeigncountry.
330
g. Attestation of a copy
The attestation must state, in substance, that the copy is a correct copy of the
original, or a specific part thereof, as the case may be.
The attestation must be under the official seal of the attesting officer, if there be any,
or if he be the clerk of a court having a seal, under the seal of such court.1416
By evidence of:
1415
Sec.24
1416
Sec.25
1417
Sec.27
1418
Sec.28
1419
Sec.29
Judicial proceedings are presumed to be regular and should be given full faith and credit, and that all
stepsrequiredbylawhadbeentaken.Itisalsopresumedthatacourtorjudgeactingassuch,whetherin
thePhilippinesorelsewhere,wasactinginthelawfulexerciseofjurisdiction.Toimpeachjudicialrecord,
331
The party producing a document as genuine which has been altered and appears to
have been altered must account for the alteration. He may show that the alteration was made
by another, without his concurrence, or was made with the consent of the parties affected by
it, or was otherwise properly or innocently made, or that the alteration did not change the
meaning or language of the instrument.1421
E. Testimonial Evidence
1. Qualifications of a Witness
theremustthereforebeevidenceofwantofjurisdiction,collusionbetweenthepartiesorfraudon
the part of the party offering the record, which must be clear, convincing and more than merely
preponderant,inordertoovercomethepresumptionofregularityintheperformanceofofficialduties
andthepresumptionofregularityofjudicialproceedings,andtheburdenofproofliesonthepartof
thepartywhochallengesthevalidityofjudicialrecords.
1420
Sec.30
Notarizationisnotanemptyroutine.Itconvertsaprivatedocumentintoapublicdocumentandrenders
itadmissibleincourtwithoutfurtherproofofitsauthenticity.Anotarialdocumentisbylawentitledto
fullfaithandcredituponitsfaceand,forthisreason,notariespublicmustobservewithutmostcarethe
basic requirements in the performance of their duties. Otherwise, the confidence of the public in the
integrityofthisformofconveyancewouldbeundermined(Coronadovs.Felonco,344SCRA565).
1421
Ifhefailstodothat,thedocumentshallnotbeadmissibleinevidence(Sec.31)
1422
Sec.33
1423
unlessotherwiseprovidedbylaw
1424
Sec.20,Rule130
332
Competency Credibility
Means the legal fitness or ability of a witness Means a witnesss disposition and intention
to be heard on the trial of a cause.1425 to tell the truth in the testimony that he has
given.
As a general rule, when a witness takes the Reflects upon the integrity and believability
stand to testify, the law, on grounds of of a witness which rests upon the discretion
public policy, presumes that he is competent. of the court.
Hence, if the evidence is in equipoise, the
witness should be permitted to testify. The
court certainly cannot reject the witness if
there is no proof of his incompetency. The
burden is therefore upon the party objecting
to the competency of a witness to establish
the grounds of incompetency.1426
Itshouldbenotedhowever,thatlossoftheperceptivesenseaftertheoccurrenceofthefactdoesnot
affect the admissibility of the testimony. Hence, a blind man can testify to what he saw prior to his
blindnessoradeafman,towhatheheardpriortohisdeafness.Butapersonincapableofperceptionis
protantoincapableoftestifying(WhartonsCriminalEvidence).
Awitnessmayhavebeencapableofperceiving,yetincapableofnarration.Hemayhavenopowers
of speech, and have no means of expressing himself by signs. He may have become insane since the
occurrenceheiscalledupontorelate.Apersonincapableofnarrationisprotantoincapableoftestifying
(ibid.).
1425
BouviersLawDictionary
1426
WhartonsCriminalEvidence
1427
USvs.Buncad,25Phil.530
1428
Gonzalesvs.CA,90SCRA183
333
3. Disqualifications of Witnesses
1429
Sec.20
1430
Sec.21
1431
Sec.22
1432
Sec.25
334
1433
Sec.23
1434
Sec.24
335
1435
R.A.1477
1436
R.A.1405
336
b. By reason of marriage1439
The testimony covered by the marital disqualification rule not only consists of
utterances but also the production of documents.1440
The spouses must be legally married to each other to invoke the benefit of the rule; it
does not cover an illicit relationship.1441
When the marriage is dissolved on the grounds provided for by law like annulment
or declaration of nullity, the rule can no longer be invoked. A spouse can already testify
against the other despite an objection being interposed by the affected spouse. If the
testimony for or against the other spouse is offered during the existence of the marriage, it
does not matter if the facts subject of the testimony occurred before the marriage. It only
matters that the affected spouse objects to the offer of testimony.
1437
R.A.2070,asamendedbyR.A.2212
1438
SeeDisqualificationofWitnesses,supra
1439
spousalimmunity,supra
1440
Statevs.Bramlet,114SC389
1441
Peoplevs.Francisco,78Phil.694
337
Can be invoked only if one of the spouses is Can be claimed whether or not the spouse is
a party to the action; a party to the action.
Applies only if the marriage is existing at the Can be claimed even after the marriage has
time the testimony is offered; been dissolved;
Ceases upon the death or either spouse; Continues even after the termination of the
marriage
1442
SurvivorshiporDeadMansStatute,supra
Elementsfortheapplicationoftherule:
(1) The plaintiff is the person who has a claim against the estate of the decedent or person of
unsoundmind;
(2) The defendant in the case is the executor or administrator or a representative of the
deceasedorthepersonofunsoundmind;
(3)Thesuitisuponaclaimbytheplaintiffagainsttheestateofsaiddeceasedorpersonofunsound
mind;
(4)Thewitnessistheplaintiff,oranassignorofthatparty,orapersoninwhosebehalfthecaseis
prosecuted;and
(5) The subject of the testimony is as to any matter of fact occurring before the death of such
deceasedpersonorbeforesuchpersonbecameofunsoundmind.
1443
supra
Elements:
(a)Theremustbeavalidmarriagebetweenthehusbandandthewife;
(b)Thereisacommunicationmadeinconfidencebyonetotheother;and
(c)Theconfidentialcommunicationmusthavebeenmadeduringthemarriage.
1444
Sec.22
1445
Sec.24
338
It is required that:
(c) The client has not given his consent to the attorneys testimony thereon; or
It is necessary that:
(b) The information was acquired or the advice or treatment was given by him in his
professional capacity for the purpose of treating and curing the patient;
(c) The information, advice or treatment, if revealed, would blacken the reputation
of the patient; and
1446
Supra
Theruleapplieswhentheattorneyhasbeenconsultedinhisprofessionalcapacity,evenifnofeehas
beenpaidtherefor.Preliminarycommunicationsmadeforthepurposeofcreatingtheattorneyclient
relationshiparewithintheprivilege.(8Wigmore587).However,ifthecommunicationswerenotmade
forthepurposeofcreatingthatrelationship,theywillnotbecoveredbytheprivilegeevenifthereafter
thelawyerbecomesthecounselofthepartyinacaseinvolvingsaidstatements(Peoplevs.Enriquez,256
Phil.221).
Theprivilegedoesnotapplytocommunicationswhichare:
(a)Intendedtobepublic;
(b)Intendedtobecommunicatedtoothers;
(c)Intendedforanunlawfulpurpose;
(d)Receivedfromthirdpersonsnotactingonbehalfoforasagentsoftheclient;or
(e)Madeinthepresenceofthirdpartieswhoarestrangerstotheattorneyclientrelationship.
The communications covered by the privilege include verbal statements and documents or papers
entrustedtotheattorney,andoffactslearnedbytheattorneythroughtheactoragencyofhisclient.
1447
Supra
Theprivilegedoesnotapplywhere:
(a)Thecommunicationwasnotgiveninconfidence;
(b)Thecommunicationisirrelevanttotheprofessionalemployment;
(c) The communication was made for an unlawful purpose, as when it is intended for the
commissionorconcealmentofacrime;
(d)Theinformationwasintendedtobemadepublic;or
(e)Therewasawaiveroftheprivilegeeitherbytheprovisionsofcontractorlaw.
Theprivilegesurvivesthedeathofthepatient(Bassilvs.FordMotorCo.,278Mich.173).
339
(d) The privilege is invoked in a civil case, whether the patient is a party thereto or
not.
(b) Public interest would suffer by the disclosure of such communications, as in the
case of State secrets. Where no public interest would be prejudiced, this rule does not
apply.1452
4. Examination of a Witness1454
The answers of the witness shall be given orally unless the witness is incapacitated to
speak, or the question calls for a different mode of answer.1456
1448
supra
1449
Wigmore,848
1450
USvs.Gordon,493F.Supp.822
1451
Supra
Exceptionstotherule:
(a)Whatisaskedisusefulevidencetovindicatetheinnocenceofanaccusedperson;
(b)Disclosurewouldlessentheriskoffalsetestimony;
(c)Disclosureisessentialtotheproperdispositionofthecase;
(d) The benefit to be gained by a correct disposition of the litigation was greater than any injury
whichcouldinuretotherelationbyadisclosureoftheinformation(70CJ453).
Publicinterestmeansmorethanamerecuriosity;itmeanssomethinginwhichthepublic,thecommunity
atlarge,hassomepecuniaryinterestbywhichtheirlegalrightsorliabilitiesareaffected(Statevs.
Crockett,206P.816).
1452
BancoFilipinovs.MonetaryBoard,G.R.70054,07/08/86
1453
supra
1454
Rule132
1455
whenpresentedinatrialorhearing
1456
Sec.1
The entire proceedings of a trial or hearing, including the questions propounded to a witness and his
answersthereto,thestatementsmadebythejudgeoranyoftheparties,counsel,orwitnesses
withreferencetothecase,shallberecordedbymeansofshorthandorstenotypeorbyothermeansof
recordingfoundsuitablebythecourt.Atranscriptoftherecordoftheproceedingsmadebytheofficial
340
(a) To be protected from irrelevant, improper, or insulting questions, and from harsh
or insulting demeanor;
(d) Not to give an answer which will tend to subject him to a penalty for an offense
unless otherwise provided by law; or
(e) Not to give an answer which will tend to degrade his reputation, unless it be to
the very fact at issue or to a fact from which the fact in issue would be presumed. But a
witness must answer to the fact of his previous final conviction for an offense.1457
stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a
correctstatementofsuchproceedings(Sec.2)
1457
Sec.3
1458
Sec.5
1459
Crossexaminationofawitnessistheabsoluteright,notamereprivilege,ofthepartyagainstwhom
he iscalled; and withregard totheaccused, it isa right grantedbythe Constitution. Sec.14(2), Art.III
thereofprovidesthattheaccusedshallenjoytherighttomeetthewitnessesfacetoface.
1460
Sec.6
341
Recalling the After the examination of a Aims to correct or explain his prior
witness witness by both sides has been testimony; or lay the proper
concluded, the witness cannot foundation for his impeachment,
be recalled without leave of but this is permitted only with the
the court. The court will discretion of the court.
grant or withhold leave in
itsdiscretion, as the interests
of justice may require.1463
1461
Sec.7
1462
Sec.8
1463
Sec.9
342
A question which suggests to the witness the One which assumes as true a fact not yet
answer which the examining party desires. testified to by the witness, or contrary to that
which he has previously stated.
1464
Sec.10
1465
A witness may be considered as unwilling or hostile only if so declared by the court upon adequate
showingofhisadverseinterest,unjustifiedreluctancetotestify,orhishavingmisledthepartyintocalling
himtothewitnessstand.Theunwillingorhostilewitnesssodeclared,orthewitnesswhoisanadverse
party, may be impeached by the party presenting him in all respects as if he had been called by the
adverseparty,exceptbyevidenceofhisbadcharacter.Hemayalsobeimpeachedandcrossexamined
by the adverse party, but such cross examination must only be on the subject matter of his
examinationinchief(Sec.12)
1466
Sec.20,AM00407SC
1467
Sec.10
343
(4) But not by evidence of particular wrongful acts, except that it may be
shown by the examination of the witness, or the record of the judgment, that he has been
convicted of an offense.1469
Except with respect to witnesses referred to in paragraphs (d) and (e)1470 of Section
10, the party producing a witness is not allowed to impeach his credibility. 1471
(a) The statements must be related to him, with the circumstances of the times and
places and the persons present, and
(b) he must be asked whether he made such statements, and if so, allowed to explain
them. If the statements be in writing they must be shown to the witness before any question
is put to him concerning them.1473
1468
Toimpeachmeanstocallintoquestiontheveracityofthewitnessstestimonybymeansofevidence
offered for that purpose, or by showing that the witness is unworthy of belief. Impeachment is an
allegation,supportedbyproof,thatawitnesswhohasbeenexaminedisunworthyofcredit(98CJS353).
1469
Sec.11
OthermodesofimpeachmentasidefromthoseprovidedbytheRulesare:
(a)Byproducingtherecordofhisconvictionofanoffense;
(b)Byshowingimprobabilityorunreasonablenessoftestimony;
(c)Byshowingbias,prejudiceorhostility;
(d)Byprioractsorconductinconsistentwithhistestimony;
(e) By showing social connections, occupation and manner of living (Underhills Criminal
Evidence,5thEd.,VolI);
(f)Byshowinginterest(WigmoreonEvidence);
(g)Byshowingintentandmotive(USvs.Lamb,26Phil.423).
Thecredibilityofawitnessmaybeattackedbyproofofhisbias,interestorhostility;bycontradictory
evidence;byevidencethathisgeneralreputationfortruth,honestyorintegrityisbad;byevidencethat
hehasmadeatothertimesstatementsinconsistentwithhispresenttestimony;andbythetestimonyof
other witness that the facts about which he has testified are otherwise than he as stated (58 Am. Jur.
370).
1470
supra
1471
Sec.12
1472
layingthepredicate
1473
Sec.13
Awitness cannot beimpeachedbyevidence of contradictory orprior inconsistent statementsuntil
the proper foundation or predicate has been laid by the party against whom said witness was called
(Peoplevs.DeGuzman,288SCRA346).Layingthepredicatemeansthatitisthedutyofapartytryingto
344
Admission Confession
impugn the testimony of a witness by means of prior or subsequent inconsistent statements, whether
oralorinwriting,togivethewitnessachancetoreconcilehisconflictingdeclaration(Peoplevs.Relucio,
85SCRA227).
Wherenopredicateislaidduringthetrialbycallingtheattentionofawitnesstoalleged
inconsistent statements and asking him to explain the contradiction, proof of alleged inconsistent
statements of the witness, whether verbal or written, cannot be admitted on objection of the adverse
party,orbepointedoutonappealforthepurposeofdestroyingthecredibilityofthewitness(Peoplevs.
Escosura,82Phil.41).
An exception to the rule requiring the laying of foundation for the admissibility of evidence of
inconsistentstatementshasbeenallowedinthecaseof dyingdeclarations. Sincetheyareadmitted on
the ground of necessity, proof of inconsistent or contradictory statements of the deceased may be
admitted on thesame ground without layinganyfoundationtherefor (Jones on Evidence,2nd Ed.,Sec.
2411).
1474
Sec.14
Thisrulethat evidence ofagoodcharacterofawitnessisnotadmissibleuntilsuchcharacterhasbeen
impeached is the logical result of the other one, that the law presumes every person to be reputedly
truthfuluntilevidenceshallhavebeenproducedtothecontrary(Johnsonvs.State,129Wis.146).
Characterevidencenotgenerallyadmissible;exceptions.
InCriminalCases:
(a)Theaccusedmayprovehisgoodmoralcharacterwhichispertinenttothemoraltraitinvolvedinthe
offensecharged.
(b)Unlessinrebuttal,theprosecutionmaynotprovehisbad moralcharacterwhich ispertinenttothe
moraltraitinvolvedintheoffensecharged.Notethatincriminalcases,theprosecutiongoesfirst.Hence,
itcannotpresentevidenceonthebadmoralcharacteroftheaccusedonitsevidenceinchief.
(c)Thegoodorbadmoralcharacteroftheoffendedpartymaybeprovedifittendstoestablishinany
reasonabledegreetheprobabilityorimprobabilityoftheoffensecharged.
InCivilCases:
(a)Evidenceofthemoralcharacterofapartyinacivilcaseisadmissibleonlywhenpertinenttotheissue
ofcharacterinvolvedinthecase.
(b)InthecaseprovidedforinRule132,Section14(Sec.51,Rule130).
1475
SeeReference
1476
Rule130
1477
Sec.26
1478
Sec.33
345
May be implied like admission by silence Cannot be implied, but should be a direct
and positive acknowledgment of guilt.
(a) The rule that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another;1483 and
(b) The rule that evidence of previous conduct or similar acts at one time is not
admissible to prove that one did or did not do the same act at another time.1484
The rule has reference to extrajudicial declarations. Hence, statements made in open
court by a witness implicating persons aside from his own judicial admissions are admissible
as declarations from one who has personal knowledge of the facts testified to.
1479
BlacksLawDictionary,9thEd.
1480
29Am.Jur.708
1481
Estradavs.Desierto,356SCRA108
1482
BlacksLawDictionary,9thEd.
1483
Sec.28,Rule130
1484
sec.34,Rule132
346
b. Admission by a party
The act or declaration of a partner or agent of the party within the scope of his
authority and during the existence of the partnership or agency may be given in evidence
against such party after the partnership or agency is shown by evidence other than such act
or declaration. The same rule applies to the act or declaration of a joint owner, joint debtor,
or other person jointly interested with the party.1487
e. Admission by a conspirator
The act or declaration of a conspirator relating to the conspiracy and during its
existence, may be given in evidence against the co-conspirator after the conspiracy is shown
by evidence other than such act of declaration.1488
1485
Sec.26
Exceptions:
(a)Admissionbyacopartneroragent(Sec.29);
(b)Admissionbyacoconspirator(Sec.30);and
(c)Admissionbyprivies(Sec.31)
1486
Sec.28
1487
Sec.29
Requisites:
(a)Thedeclarationoractofthepartnerandagentmusthavebeenmadeordonewithinthescopeof
hisauthority;
(b)Thedeclarationoractofthepartnerandagentmusthavebeenmadeordoneduringtheexistence
ofthepartnershiporagency,andthepersonmakingthedeclarationisstillapartneroranagent;and
(c)Theexistenceofthepartnershiporagencyisprovenbyevidenceotherthanthedeclarationoract
ofthepartnerandagent.
1488
Sec.30
Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felonyanddecidetocommitit(Art.8,RPC).Onceconspiracyisproven,theactofoneistheactofall.The
statementthereforeofonemaybeadmittedagainsttheothercoconspiratorsasanexceptiontotherule
ofresinteraliosacta.
Fortheexceptiontoapply,thefollowingrequisitesmustconcur:
(a)Thedeclarationoractbemadeordoneduringtheexistenceoftheconspiracy;
(b)Thedeclarationoractmustrelatetotheconspiracy;and
(c)Theconspiracymustbeshownbyevidenceotherthanthedeclarationoract.
347
f. Admission by privies1489
Where one derives title to property from another, the act, declaration, or omission of
the latter, while holding the title, in relation to the property, is evidence against the
former.1490
g. Admission by silence
An act or declaration made in the presence and within the hearing or observation of
a party who does or says nothing when the act or declaration is such as naturally to call for
action or comment if not true, and when proper and possible for him to do so, may be given
in evidence against him.1491
h. Confessions
1489
Privitymeansmutualsuccessionofrelationshiptothesamerightsofproperty.Priviesarethosewho
havemutualorsuccessiverelationshiptothesamerightofpropertyorsubjectmatter,suchaspersonal
representatives,heirs,devisees,legatees,assigns,voluntarygranteesorjudgmentcreditorsorpurchasers
fromthemwithnoticeofthefacts.
1490
Sec.31
Three(3)exceptionsarerecognizedtotherulethatdeclarationsofthetransferor,madesubsequent
tothetransfer,areinadmissible:
(a) Where the declarations are made in the presence of the transferee, and he acquiesces in the
statements,orassertsnorightswhereheoughttospeak;
(b)Wheretherehasbeenaprimafaciecaseoffraudestablished,aswherethethingafterthesaleor
transfer,remainswiththesellerortransferor;
(c) Where the evidence establishes a continuing conspiracy to defraud, which conspiracy exists
betweenthevendorandthevendee(JonesonEvidence,Sec.912).
1491
Sec.32
Requisitesmustconcur:
(a)Hearingandunderstandingofthestatementbytheparty;
(b)Opportunityandnecessityofdenyingthestatements;
(c)Statementmustrefertoamatteraffectinghisright;
(d)Factswerewithintheknowledgeoftheparty;and
(e)Factsadmittedortheinferencetobedrawnfromhissilencewouldbematerialtotheissue.
The rule that the silence of a party against whom a claim or right is asserted may be construed as an
admission of the truth of the assertion rests on that instinct of our nature, which leads us to resist an
unfounded demand. The common sense of mankind is expressed in the popular phrase, silence gives
consentwhichisbutanotherformofexpressingthemaximofthelaw,quitacetcosentirevidetur(Perry
vs.Johnson,59Ala.648).
1492
Wigmore
Tobevalid,confessionsmustbevoluntarilyandfreelymade.
1493
Sec.33
348
Evidence that one did or did not do a certain thing at one time is not admissible to
prove that he did or did not do the same or a similar thing at another time; but it may be
received to prove a specific intent or knowledge, identity, plan, system, scheme, habit,
custom or usage, and the like.1494
6. Hearsay Rule
A witness can testify only to those facts which he knows of his personal knowledge;
that is, which are derived from his own perception, except as otherwise provided in the
rules.1495
Exceptions to the rule that confessions of an accused may be given in evidence against him and
incompetentagainsthiscoaccused:
(a) When several accused are tried together, confession made by one of them during the trial
implicatingtheothersisevidenceagainstthelatter(Peoplevs.ImpitGumaling,61Phil.165);
(b)Whenoneofthedefendantsisdischargedfromtheinformationandtestifiesasawitnessforthe
prosecution,theconfessionmadeinthecourseofhistestimonyisadmissibleagainsthiscodefendants,if
corroboratedbyindisputableproof(Peoplevs.Bautista,40Phil.389);
(c)Ifadefendantafterhavingbeenapprisedoftheconfessionofhiscodefendantratifiesorconfirms
saidconfession,thesameisadmissibleagainsthim(Peoplevs.OrenciadaandCenita,47Phil.970);
(d) Interlocking confessions Where several extrajudicial confession had been made by several
personschargedwithanoffenseandtherecouldhave been nocollusionwithreferencetosaidseveral
confessions,thefactthatthestatementsthereinareinallmaterialrespectsidentical,isconfirmatoryof
theconfessionofthecodefendant,andisadmissibleagainsthisothercodefendants(Peoplevs.Badilla,
48Phil.718);
(e)Astatementmadebyonedefendantafterhisarrest,inthepresenceofhiscodefendant,confessing
hisguiltandimplicatinghiscodefendantwhofailedtocontradictordenyit,isadmissibleagainsthisco
defendant(22CJS1441);
(f)Whentheconfessionisofaconspiratorandmadeafterconspiracyinfurtheranceofitsobject,the
sameisadmissibleagainsthiscoconspirator;and
(g)Theconfessionofoneconspiratormadeaftertheterminationofaconspiracyisadmissibleagainsthis
coconspiratorifmadeinhispresenceandassentedtobyhim,oradmitteditstruthorfailedtocontradict
ordenyit(WhartononEvidence).
Anypersonunderinvestigationforthecommissionofanoffenseshallhavetherighttobeinformedof
hisrighttoremainsilentandtohavecompetentandindependentcounselpreferablyofhisownchoice.If
thepersoncannotaffordtheservicesofcounsel,hemustbeprovidedwithone.Theserightscannotbe
waivedexceptinwritingandinthepresenceofcounsel.
(a)Notorture,force,violence,threat,intimidation,oranyothermeanswhichvitiatethefreewillshall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detentionareprohibited;
(b)AnyconfessionoradmissionobtainedinviolationofthisorSection17hereofshallbeinadmissible
inevidenceagainsthim(Sec.12,Art.III,Constitution).
1494
Reasonfortherule:Itisclearthatevidenceofothercrimescompelsthedefendanttomeetchargesof
whichtheindictmentgiveshimnoinformation,confuseshiminhisdefense,raisesavarietyofissue,and
thusdivertstheattentionofthecourtfromthechargeimmediatelybeforeit.Therulemaybesaidtobe
anapplicationoftheprinciplethattheevidencemustbeconfinedtothepointinissueinthecaseontrial.
In other words, evidence of collateral offenses must not be received as substantive evidence of the
offensesontrial(20Am.Jur.288).
1495
Sec.36
349
a. Meaning of hearsay
Traditionally, testimony that is given by a witness who relates not what he or she
knows personally, but what others have said, and that is therefore dependent on the
credibility of someone other than the witness.1496
Hearsay testimony is not subject to the tests which can ordinarily be applied for the
ascertainment of the truth of testimony, since the declarant is not present and available for
cross-examination.
1496
BlacksLawDictionary,9thEd.
Suchtestimonyisgenerallyinadmissibleundertherulesofevidence.(ibid.)
1497
31CJS919
Italsomeanstheevidencenotofwhatthewitnesshimselfknowsbutofwhathehasheardfromothers
(WoodroffesLawonEvidence,9thEd.)
1498
20Am.Jur.400
1499
Sec.37
1500
Sec.43
1501
Sec.42
1502
Sec.40
1503
Sec.46
1504
Sec.41
1505
Ibid.
350
When made under the consciousness of an impending death, may be received in any
case wherein a persons death is the subject of inquiry, as evidence of the cause and
surrounding circumstances of such death.1513
1506
Sec.47
1507
Sec.38
1508
Estradavs.Desierto,356SCRA108
1509
Sec.45
1510
Sec.39
1511
Sec.42
1512
Ofthiskindare:
(a)Statementsofapersonshowinghisstateofmind,thatis,hismentalcondition,knowledge,belief,
intention,illwillandotheremotion(USvs.Enriquez,1Phil.241);
(b)Statementsofapersonwhichshowhisphysicalcondition,asillnessandthelike(Steelyvs.Central,
88Vt.178);
(c)Statementsofapersonfromwhichaninferencemaybemadeastothestateofmindofanother,
thatis,knowledge,belief,motive,goodorbadfaith,etc.ofthelatter(Rolesvs.LizarragaHermanos,42
Phil.584);
(d) Statements which may identify the date, place, and person in question (State vs. Dunn, 109 Ia.
750);and
(e)Statementsshowingthelackofcredibilityofawitness.
1513
Sec.37
Dying declarations are the statements made by a person after the mortal wounds have been inflicted,
under the belief that death is certain, stating the facts concerning the cause of, and the circumstances
surroundingthehomicide(WhartonsCriminalEvidence).
Requisites:
(a)Thatdeathisimminentandthedeclarantisconsciousofthatfact;
(b)Thatthedeclarationreferstothecauseandsurroundingcircumstancesofsuchdeath;
(c)Thatthedeclarationrelatestofactswhichthevictimiscompetenttotestifyto;and
(d)Thatthedeclarationisofferedinacasewhereinthedeclarantsdeathisthesubjectoftheinquiry.
351
The declaration made by a person deceased, or unable to testify, against the interest
of the declarant, if the fact asserted in the declaration was at the time it was made so far
contrary to declarant's own interest, that a reasonable man in his position would not have
made the declaration unless he believed it to be true, may be received in evidence against
himself or his successors in interest and against third persons.1514
Evidence against the successor in interest of Evidence against even the declarant, his
the admitter successor in interest, or 3rd persons
Admission need not be against the admitters Declaration must be against the interest of
interest the declarant
1514
Sec.38
Requisitesfortheexceptiontoapply:
(a)Thatthedeclarantisdeadorunabletotestify;
(b)Thatitrelatestoafactagainsttheinterestofthedeclarant;
(c)Thatatthetimehemadesaiddeclarationthedeclarantwasawarethatthesamewascontraryto
hisaforesaidinterest;and
(d)Thatthedeclaranthadnomotivetofalsifyandbelievedsuchdeclarationtobetrue.
352
1515
The word "pedigree" includes relationship, family genealogy, birth, marriage, death, the dates when
andtheplaceswherethesefactsoccurred,andthenamesoftherelatives.Itembracesalsofactsoffamily
historyintimatelyconnectedwithpedigree(Sec.39)
Requisitesforapplicability:
(a)Declarantisdeadorunabletotestify;
(b)Necessitythatpedigreebeinissue;
(c)Declarantmustbearelativeofthepersonwhosepedigreeisinquestion;
(d)Declarationmustbemadebeforethecontroversyoccurred;and
(e) The relationship between the declarant and the person whose pedigree is in question must be
shownbyevidenceotherthansuchactordeclaration.
Pedigreeisthehistoryoffamilydescentwhichistransmittedfromonegenerationtoanotherbybothoral
andwrittendeclarationsandbytraditions(JonesonEvidence).
1516
Sec.40
Requisitesfortheexceptiontoapply:
(a)Thereisacontroversyinrespecttothepedigreeofanymembersofafamily;
(b) The reputation or tradition of the pedigree of the person concernedexisted ante litem motam or
previoustothecontroversy;and
(c)Thewitnesstestifyingtothereputationortraditionregardingthepedigreeofthepersonconcerned
mustbeamemberofthefamilyofsaidperson,eitherbyconsanguinityoraffinity.
1517
Sec.41
Requisitesfortheadmissibilityoftheexception:
(a)Thefactsmustbeofpublicorgeneralinterestandmorethanthirty(30)yearsold;
(b)Thecommonreputationmusthavebeenancient(morethan30yearsoldoronegenerationold);
(c)Thereputationmusthavebeenoneformedamongtheclassofpersonswhowereinapositionto
havesomesourcesofinformationandtocontributeintelligentlytotheformationoftheopinion;and
(d)Thecommonreputationmusthavebeenexistingprevioustothecontroversy.
Requisitesfortheadmissibilityofcommonreputationrespectingmarriage:
(a)Thecommonreputationmusthavebeenformedprevioustothecontroversy;and
353
So, also, statements accompanying an equivocal act material to the issue, and giving
it a legal significance.1519
General classes of declarations to which the term res gestae is usually applied:
(b)Thecommonreputationmusthavebeenformedinthecommunityoramongtheclassofpersons
whoareinapositiontohavesourcesof informationandtocontributeintelligently tothe formationof
theopinion.
Requisitesfortheadmissibilityofcommonreputationrespectingmoralcharacter:
(a)Thatitisthereputationintheplacewherethepersoninquestionisbestknown;
(b)Thatitwasformedantelitemmotam.
1518
Res gestae is from the Latin meaning things done and includes the circumstances, facts and
declarations incidental to the main fact or transaction, necessary to illustrate its character, and also
includesacts,wordsanddeclarationswhicharesocloselyconnectedtherewithastoconstituteapart
of the transaction. As applied to a crime, res gestae means the complete criminal transaction from its
beginningorstartingpointintheactoftheaccuseduntiltheendisreached.
1519
Sec.42
The test for the admissibility of evidence as part of the res gestae is whether the act, declaration or
exclamation is so intimately interwoven or connected with the principal fact or event which it
characterizesastoberegardedasapartofthetransactionitself,andalsowhetheritclearlynegativeany
premeditationorpurposetomanufacturetestimony(32CJS21).
1520
Factorstoconsidertodeterminewhetherstatementsofferedinevidenceaspartofresgestaehave
beenmadespontaneousornot:
(a)Thetimethathaselapsedbetweentheoccurrenceoftheactortransactionandthemakingofthe
statement;
(b)Theplacewherethestatementwasmade;
(c)Theconditionofthedeclarantwhenhemadethestatement;
(d) The presence or absence of intervening occurrences between the occurrence and the statement
relativethereto;
(e)Thenatureandcircumstancesofthestatementitself.
354
The res gestae is the startling occurrence; The res gestae is the equivocal act;
Spontaneous exclamation may be prior to, Verbal act must be contemporaneous with or
simultaneous with, or subsequent to the must accompany the equivocal act to be
startling occurrence. admissible.
Trustworthiness and necessity - because The motive, character and object of an act
statements are made instinctively, and are frequently indicated by what was said by
because said natural and spontaneous the person engaged in the act.
utterances are more convincing than the
testimony of the same person on the stand.
Entries made at, or near the time of the transactions to which they refer, by a person
deceased, or unable to testify, who was in a position to know the facts therein stated, may be
received as prima facie evidence, if such person made the entries in his professional capacity
or in the performance of duty and in the ordinary or regular course of business or duty.1521
1521
Sec.43
Requisitesforadmissibility:
(a)Entriesmusthavebeenmadeatornearthetimeofthetransactiontowhichtheyrefer;
(b)Entrantmusthavebeeninapositiontoknowthefactsstatedintheentries;
(c)Entriesmusthavebeenmadebyentrantinhisprofessionalcapacityorintheperformanceofhis
duty;
(d)Entriesweremadeintheordinaryorregularcourseofbusinessofduties;
(e)Entrantmustbedeceasedorunabletotestify.
355
1522
Sec.44
Requisitesforadmissibility:
(a)Thatitwasmadebyapublicofficer,orbyanotherpersonspeciallyenjoinedbylawtodoso;
(b) It was made by a public officer in the performance of his duty, of by another person in the
performanceofadutyspeciallyenjoinedbylaw;
(c)Thepublicofficerortheotherpersonhadsufficientknowledgeofthefactsbyhimstated,which
musthavebeenacquiredbyhimpersonallyorthroughofficialinformation.
1523
Sec.45
Requisitesforadmissibility:
(a)Thecommerciallistisastatementofmattersofinteresttopersonsengagedinanoccupation;
(b)Suchstatementiscontainedinalist,register,periodicalorotherpublishedcompilation;
(c)Saidcompilationispublishedfortheuseofpersonsengagedinthatoccupation;and
(d) It is generally used and relied upon by persons in the same occupation (PNOC Shipping and
TransportCo.vs.CA,297SCRA402).
1524
Sec.46
Requisitesforadmissibility:
(a) The court takes judicial notice that the writer of the statement in the treatise, periodical or
pamphlet,isrecognizedinhisprofessionorcallingasexpertinthesubject;or
(b)Awitness,expertinthesubjecttestifiesthatthewriterofthestatementinthetreatise,periodical
orpamphletisrecognizedinhisprofessionorcallingasexpertinthesubject(WigmoreonEvidence).
1525
Sec.47
356
7. Opinion Rule
General rule:
Exceptions:
(b) Regarding the identity or the handwriting of a person, when he has knowledge of
the person or handwriting, whether he is an ordinary or expert witness;1529
(c) On the mental sanity or a person, if the witness is sufficiently acquainted with the
former or if the latter is an expert witness;
Requisitesforadmissibility:
(a) The witness whose testimony is offered in evidence is either dead, unable to testify, insane,
mentally incapacitated, lost his memory through old age or disease, physically disabled, kept away by
contrivanceoftheoppositepartyanddespitediligentsearchcannotbefound;
(b)Identityofpartiesinthepreviousandthepresentcaseorproceeding;
(c)Identityofissues;
(d)Opportunityofcrossexaminationofwitness.
If the witnesshasbeen subjected tocrossexamination in aformer trial, the rule is satisfied, andthe
former testimony may now be used. In applying this proposition, the following details may arise for
settlement:
(a)Wasthetestimonygivenbeforeacourtallowingcrossexaminationbyadverse partiesandhaving
powertocompelanswer?Ifnot,thetestimonycannotbeused.
(b) If the testimony was given as a deposition, was the opponent given reasonable notice and
opportunitytoattendandcrossexamine?
(c)Whetherataformertrialorbeforeadepositionofficer,werethethenissuesandpartiessonearly
thesameasnowthattheopportunitytocrossexamineonthepresentissueswasinadequate?Ifnot,the
testimonycannotbeused.
(d)Wascrossexaminationpreventedbythedeathorillnessorrefusalofthewitness,aftergivinghis
directtestimony?Ifitwas,thedirectexaminationcannotbeused(WigmoreonEvidence).
1526
Upon the question of the existence or nonexistence of any fact in issue, whether a main fact or
evidentiaryfact,opinionevidenceastoitsexistenceornonexistenceisinadmissible.Thewitnessesmust
testifytofactswithintheirknowledgeandmaynotstatetheiropinion,evenontheircrossexamination.
1527
underSecs.49and50(Sec.48)
1528
thatis,whenheisanexpertthereon;
1529
Sec.22,Rule132
1530
suchasthevalueofordinaryhouseholdarticles(Galianvs.StateAssuranceCo.,29Phil.413)
357
Thereasonisthatitisforthecourttoformanopinionconcerningthefactsinproofofwhichevidenceis
offered.Thisinturnisbaseduponthefactthatevenwhenwitnessesarelimitedintheirstatementsto
detailedfacts,theirbias,ignorance,anddisregardofthetruthareobstacleswhichtoooftenhinderinthe
investigationofthetruth,sothatifwitnessesmightbeallowedtostatetheopinionstheymightentertain
about the facts in issue, the administration of justice would become little less than a farce (Jones,
CommentariesonEvidence,2ndEd.).
1531
Anexpertisapersonwhoissoqualified,eitherbyactualexperienceorbycarefulstudy,astoenable
himtoformadefiniteopinionofhisownrespectinganydivisionofscience,branchofart,ordepartment
of trade about which persons having no particular training or special study are incapable of forming
accurateopinionsorofdeducingcorrectconclusions(20Am.Jur.634).
1532
Sec.49
Itissufficientthatthefollowingfactorsarepresent:
(a)Trainingandeducation;
(b)Particular,firsthandfamiliaritywiththefactsofthecase;and
(c)Presentationoftheauthoritiesorstandardsuponwhichhisopinionisbased.
Common subjects of expert testimony: handwriting, typewritten documents, fingerprints, ballistics,
medicine,valueofpropertiesandservices,
1533
i.e.,hemustbeshowntopossessthespecialskillorknowledgerelevanttothequestiontowhichheis
toexpressanopinion(Peoplevs.Fundano,291SCRA356)
Requisitesforadmissibilityofexperttestimony:
(a)Thesubjectunderexaminationmustbeonethatrequiresthatthecourthastheaidofknowledgeor
experienceascannotbeobtainedfromtheordinarywitnesses;
(b)Thewitnesscalledanexpertmustpossesstheknowledge,skill,orexperienceneededtoinformthe
courtintheparticularcaseunderconsideration;
(c)Likeotherevidence,experttestimonyisnotadmissibleastoamatternotinissue(WhartonsCriminal
Evidence,11thEd,).
Formofthequestionondirectexaminationofanexpertwitness:
(a)Opinionbasedonfactsknownpersonallybytheexpert;
(b)Opinionbasedonfactsofwhichhehaspersonalknowledge.
Howmaytheopinionofanexpertwitnessbeimpeached:
(a)Hemaybecontradictedbyothersinhisownclassorbyanycompetentwitness,orbyuseofexhibits;
or
(b)Theweightofhistestimonymaybeimpairedbyshowingthatheisinterestedorbiased;
(c)Thathemadeinconsistentstatementatanothertime,providedaproperfoundationislaidtherefor;
(d)Thatheformedadifferentopinionatanothertime;
(e)Thathedidnotexpresstheopiniontestifiedtoatatimewhensuchexpressionmightreasonably
havebeenexpected;or
(f)Thathechangedsidesinthecase(932CJS411).
358
8. Character Evidence
a. In Criminal Cases:
(1) The accused may prove his good moral character which is pertinent to the moral
trait involved in the offense charged.
(2) Unless in rebuttal, the prosecution may not prove his bad moral character which
is pertinent to the moral trait involved in the offense charged.1535
(3) The good or bad moral character of the offended party may be proved if it tends
to establish in any reasonable degree the probability or improbability of the offense
charged.1536
1534
Sec.50
1535
In criminal cases, the prosecution goes first. Hence, it cannot present evidence on the bad moral
characteroftheaccusedonitsevidenceinchief.
1536
Therulesontheadmissibilityofcharacterevidencemaybesummarizedasfollows:
(a) In criminal cases, the prosecution may not at the outset prove the bad moral character of the
accusedwhichispertinenttothemoraltraitinvolvedintheoffensecharged.Iftheaccused,however,in
hisdefenseattemptstoprovehisgoodmoralcharacterthentheprosecutioncanintroduceevidenceof
suchbadmoralcharacterattherebuttalstage.
(b)Alsoincriminalcase,thegoodorbadmoralcharacteroftheoffendedpartymayalwaysbeproved
byeitherpartyaslongassuchevidencetendstoestablishtheprobabilityorimprobabilityoftheoffense
charged.
(c)Incivilcases,themoralcharacterofeitherpartytheretocannotbeprovedunlessitispertinentto
theissueofcharacterinvolvedinthecase.
(d) In both civil and criminal cases, the bad moral character of a witness may always be proved by
either party (Sec. 11, Rule 132), but not evidence of his good character, unless it has been impeached
(Sec.14,Rule132).
Withrespecttothenatureorsubstanceofthecharacterevidencewhichmaybeadmissible,therules
requirethat:
(a)Withrespecttotheaccused,suchcharacterevidencemustbepertinenttothemoraltraitinvolved
intheoffensecharged;
(b) With respect to the offended person, it is sufficient thatsuch character evidencemay
establish in any reasonable degree the probability or improbability of the offense charged, as in
prosecutions for rape or consented abduction wherein the victims chastity may be questioned, and in
359
b. In Civil Cases:
(1) Evidence of the moral character of a party in a civil case is admissible only when
pertinent to the issue of character involved in the case.
The Rule shall govern the examination of child witnesses who are victims of crime,
accused of a crime, and witnesses to crime.
Any person who at the time of giving testimony is below the age of eighteen (18)
years.
In child abuse cases, a child includes one over 18 years but is found by the court as
unable to fully take care of himself or protect himself from abuse, neglect, cruelty,
exploitation, or discrimination because of a physical or mental disability or condition.1541
Every child is presumed qualified to be a witness. However, the court shall conduct a
competency examination of a child, motu proprio or on motion of a party, when it finds that
substantial doubt exists regarding the stability of the child to perceive, remember,
communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in
court.1542
prosecution for homicide wherein the pugnacious, quarrelsome or trouble seeking character of the
victimisapropersubjectofinquiry;and
(c)Withrespecttowitnesses,suchcharacterevidencemustrefertohisgeneralreputationfortruth,
honestyorintegrity,thatis,asaffectinghiscredibility(Regalado,RemedialLawCompendium,Vol.II).
1537
Evidenceofthegoodcharacterofawitnessisnotadmissibleuntilsuchcharacterhasbeenimpeached.
1538
Sec.51,Rule130
1539
A.M.No.00407SC
1540
Sec.1
1541
Sec.4[a]
1542
Sec.6
360
(a) The prosecutor, counsel or the guardian ad litem may apply for an order that the
testimony of the child be taken in a room outside the courtroom and be televised to the
courtroom by live-link television.
Before the guardian ad litem applies for such order, he shall consult the
prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding
the necessity of applying for an order. In case the guardian ad litem is convinced that the
decision of the prosecutor or counsel not to apply will cause the child serious emotional
trauma, he himself may apply for the order.
1543
Id.,[a]
1544
Id.,6[b]
Onlythefollowingareallowedtoattendacompetencyexamination:
(a)Thejudgeandnecessarycourtpersonnel;
(b)Thecounselfortheparties;
(c)Theguardianadlitem;
(d)Oneormoresupportpersonsforthechild;and
(e)Thedefendant,unlessthecourtdeterminesthatcompetencecanbefullyevaluatedinhisabsence
(Sec.6[c]).
Examination of a child as to his competence shall be conducted only by the judge. Counsel for the
parties, however, can submit questions to the judge that he may, in his discretion, ask the child (Sec.
6[d]).
Thequestionsaskedatthecompetencyexaminationshallbeappropriatetotheageanddevelopmental
levelofthechild;shallnotberelatedtotheissuesattrial;andshallfocusontheabilityofthechildto
remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify
truthfully(Sec.6[e]).
Thecourthasthedutyofcontinuouslyassessingthecompetenceofthechildthroughouthistestimony
(Sec.6[f]).
1545
Sec.8
361
The person seeking such an order shall apply at least five (5) days before the trial
date, unless the court finds on the record that the need for such an order was not reasonably
foreseeable.
(b) The court may motu proprio hear and determine, with notice to the parties, the
need for taking the testimony of the child through live-link television.
(c) The judge may question the child in chambers or in some comfortable place other
than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and
counsel for the parties. The questions of the judge shall not be related to the issues at trial
but to the feelings of the child about testifying in the courtroom.
(d) The judge may exclude any person, including the accused, whose presence or
conduct causes fear to the child.
(e) The court shall issue an order granting or denying the use of live-link television
and stating the reasons therefor.
(f) The court may order that the testimony of the child be taken by live-link
television if there is a substantial likelihood that the child would suffer trauma from
testifying in the presence of the accused, his counsel or the prosecutor, as the case may be.
The trauma must be of a kind which would impair the completeness or truthfulness of the
testimony of the child.
(1) The child shall testify in a room separate from the courtroom in the
presence of the guardian ad litem; one or both of his support persons, the facilitator
and interpreter, if any; a court officer appointed by the court; persons necessary to
operate the closed-circuit television equipment; and other persons whose presence
are determined by the court to be necessary to the welfare and well-being of the
child;
(2) The judge, prosecutor, accused, and counsel for the parties shall be in the
courtroom. The testimony of the child shall be transmitted by live-link television into
the courtroom for viewing and hearing by the judge, prosecutor, counsel for the
parties, accused, victim, and the public unless excluded.
(3) It if is necessary for the child to identify the accused at trial, the court may
allow the child to enter the courtroom for the limited purpose of identifying the
accused, or the court may allow the child to identify the accused by observing the
image of the latter on a television monitor.
(4) The court may set other conditions and limitations on the taking of the
testimony that it finds just and appropriate, taking into consideration the best
interests of the child.
362
(h) The testimony of the child shall be preserved on videotape, digital disc, or other
similar devices which shall be made part of the court record and shall be subject to a
protective order as provided in Section 31(b).1546
The prosecutor, counsel, or guardian ad litem may apply for an order that a
deposition be taken of the testimony of the child and that it be recorded and preserved on
videotape. Before the guardian ad litem applies for an order, he shall consult with the
prosecutor or counsel subject to the second and third paragraphs1547 of section 25(a).
If the court finds that the child will not be able to testify in open court at trial, it shall
issue an order that the deposition of the child be taken and preserved by videotape.
The rights of the accused during trial, especially the right to counsel and to confront
and cross - examine the child, shall not be violated during the deposition.
If the order of the court is based on evidence that the child is unable to testify in the
physical presence of the accused, the court may direct the latter to be excluded from the
room in which the deposition is conducted. In case of exclusion of the accused, the court
shall order that the testimony of the child be taken by live-link television in accordance with
Section 251549 of this Rule. If the accused is excluded from the deposition, it is not necessary
that the child be able to view an image of the accused.
The court may set other conditions on the taking of the deposition that it
finds just and appropriate, taking into consideration the best interests of the child, the
constitutional rights of the accused, and other relevant factors.
1546
Sec.25
1547
supra
1548
Theotherpersonswhomaybepermittedtobepresentattheproceedingare:
(1)Theprosecutor;
(2)Thedefensecounsel;
(3)Theguardianadlitem;
(4)Theaccused,subjecttosubsection(e);
(5)Otherpersonswhosepresenceisdeterminedbythecourttobenecessarytothewelfareandwell
beingofthechild;
(6)Oneorbothofhissupportpersons,thefacilitatorandinterpreter,ifany;
(7)Thecourtstenographer;and
(8)Personsnecessarytooperatethevideotapeequipment
1549
supra
363
If, at the time of trial, the court finds that the child is unable to testify for a reason
stated in section 25(f)1551 of this Rule, or is unavailable for any reason,1552 the court may
admit into evidence the videotaped deposition of the child in lieu of his testimony at the
trial. The court shall issue an order stating the reasons therefor.
After the original videotaping but before or during trial, any party may file any
motion for additional videotaping on the ground of newly discovered evidence. The court
may order an additional videotaped deposition to receive the newly discovered evidence.1553
(a) Before such hearsay statement may be admitted, its proponent shall make known
to the adverse party the intention to offer such statement and its particulars to provide him a
fair opportunity to object. If the child is available, the court shall, upon motion of the
adverse party, require the child to be present at the presentation of the hearsay statement for
cross-examination by the adverse party. When the child is unavailable, the fact of such
circumstance must be proved by the proponent.
(b) In ruling on the admissibility of such hearsay statement, the court shall consider
the time, content and circumstances thereof which provide sufficient indicia of reliability.1555
When the child witness is unavailable, his hearsay testimony shall be admitted only if
corroborated by other admissible evidence.1556
1550
asprovidedinsection31(b)
1551
supra
1552
describedinsection4(c),Rule23ofthe1997RulesofCivilProcedure
1553
Sec.27
1554
nototherwiseadmissibleunderthehearsayrule
1555
Itshallconsiderthefollowingfactors:
(1)Whetherthereisamotivetolie;
(2)Thegeneralcharacterofthedeclarantchild;
(3)Whethermorethanone(1)personheardthestatement;
(4)Whetherthestatementwasspontaneous;
(5)Thetimingofthestatementandtherelationshipbetweenthedeclarantchildandwitness;
(6)Crossexaminationcouldnotshowthelackofknowledgeofthedeclarantchild;
(7)Thepossibilityoffaultyrecollectionofthedeclarantchildisremote;and
(8) The circumstances surrounding the statement are such that there is no reason to suppose the
declarantchildmisrepresentedtheinvolvementoftheaccused.
1556
Sec.28
Thechildwitnessshallbeconsideredunavailableunderthefollowingsituations:
364
(1) Evidence offered to prove that the alleged victim engaged in other sexual
behavior; and
(2) Evidence offered to prove the sexual pre-disposition of the alleged victim.
Exception.
Evidence of specific instances of sexual behavior by the alleged victim to prove that
a person other than the accused was the source of semen, injury, or other physical evidence
shall be admissible.
(1) File a written motion at least fifteen (15) days before trial, specifically describing
the evidence and stating the purpose for which it is offered, unless the court, for good cause,
requires a different time for filing or permits filing during trial; and
(2) Serve the motion on all parties and the guardian ad litem at least three (3) days
before the hearing of the motion. Before admitting such evidence, the court must conduct a
hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel
a right to attend and be heard. The motion and the record of the hearing must be sealed and
remain under seal and protected by a protected order.1557 The child shall not be required to
testify at the hearing in chambers except with his consent.1558
i. Protective orders
Any videotape or audiotape of a child that is part of the court record shall be under a
protective order that provides as follows:
(1) Tapes may be viewed only by parties, their counsel, their expert witness, and the
guardian ad litem.
(2) No tape, or any portion thereof, shall be divulged by any person mentioned in
subsection (a)1559 to any other person, except as necessary for the trial.
(1)Isdeceased,suffersfromphysicalinfirmity,lackofmemory,mentalillness,orwillbeexposedto
severpsychologicalinjury;or
(2)Isabsentfromthehearingandtheproponentofhisstatementhasbeenunabletoprocurehis
attendancebyprocessorotherreasonablemeans.
1557
setforthinsection31(b)
1558
Sec.30
1559
(1)Membersofthecourtstaffforadministrativeuse;
(2)Theprosecutingattorney;
365
(3) No person shall be granted access to the tape, its transcription or any part
thereof unless he signs a written affirmation that he has received and read a copy of the
protective order; that he submits to the jurisdiction of the court with respect to the
protective order; and that in case of violation thereof, he will be subject to the contempt
power of the court.
(4) Each of the tape cassettes and transcripts thereof made available to the
parties, their counsel, and respective agents shall bear the following cautionary notice:
This object or document and the contents thereof are subject to a protective
order issuedby the court in (case title), (case number). They shall not be examined,
inspected, read, viewed, or copied by any person, or disclosed to any person, except
as provided in the protective order. No additional copies of the tape or any of its
portions shall be made, given, sold, or shown to any person without prior court
order. Any person violating such protective order is subject to the contempt power
of the court and other penalties prescribed by law.
(5) No tape shall be given, loaned, sold, or shown to any person except as ordered
by the court.
(6) Within thirty (30) days from receipt, all copies of the tape and any transcripts
thereof shall be returned to the clerk of court for safekeeping unless the period is extended
by the court on motion of a party.
(7) This protective order shall remain in full force and effect until further order of
the court.1560
The court may, motu proprio or on motion of any party, the child, his parents, legal
guardian, or the guardian ad litem, issue additional orders to protect the privacy of the
child.1561
(3)Defensecounsel;
(4)Theguardianadlitem;
(5)Agentsofinvestigatinglawenforcementagencies;and
(6)Otherpersonsasdeterminedbythecourt.
1560
Sec.31(b)
1561
Sec.31(c)
366
1. Offer of Evidence
The court shall consider no evidence which has not been formally offered. The
purpose for which the evidence is offered must be specified.1563
Testimony of a witness - must be made at the time the witness is called to testify.
3. Objection
Objection to evidence offered orally - must be made immediately after the offer is
made.
An offer of evidence in writing shall be objected to within three (3) days after notice
of the offer unless a different period is allowed by the court.
4. Repetition of an Objection
1562
Rule132
1563
Sec.34
1564
Suchoffershallbedoneorallyunlessallowedbythecourttobedoneinwriting(Sec.35)
1565
Sec.36
Groundsforobjection:
(a)Hearsay
(b)Argumentative
(c)Leading
(d)Misleading
(e)Incompetent
(f)Irrelevant
(g)Bestevidencerule
(h)Paroleevidencerule
(i)Questionhasnobasis
367
repeat the objection, it being sufficient for the adverse party to record his continuing
objection to such class of questions.1566
5. Ruling
Must be given immediately after the objection is made, unless the court desires to
take a reasonable time to inform itself on the question presented; but the ruling shall always
be made during the trial and at such time as will give the party against whom it is made an
opportunity to meet the situation presented by the ruling. The reason for sustaining or
overruling an objection need not be stated. However, if the objection is based on two or
more grounds, a ruling sustaining the objection on one or some of them must specify the
ground or grounds relied upon.1567
Should a witness answer the question before the adverse party had the opportunity
to voice fully its objection to the same, and such objection is found to be meritorious, the
court shall sustain the objection and order the answer given to be stricken off the record.
On proper motion, the court may also order the striking out of answers which are
incompetent, irrelevant, or otherwise improper.1568
If documents or things offered in evidence are excluded by the court, the offeror
may have the same attached to or made part of the record. If the evidence excluded is oral,
the offeror may state for the record the name and other personal circumstances of the
witness and the substance of the proposed testimony.1569
1566
Sec.37
1567
Sec.38
1568
Sec.39
1569
Sec.40
368
The Rules shall govern the summary procedure in the MeTC, MTC and MCTC in
the following cases falling within their jurisdiction:
(a) All cases of forcible entry and unlawful detainer, irrespective of the
amount of damages or unpaid rentals sought to be recovered, and where attorneys
fees awarded do not exceed P20,000;
(b) All other cases, except probate proceedings, where the total amount of
the plaintiffs claim does not exceed P100,000 outside Metro Manila, or P200,000 in
Metro Manila.1570
(d) All other criminal cases where the penalty prescribed by law for the
offense charged is imprisonment not exceeding 6 months or a fine not exceeding
P1,000 or both, irrespective of other imposable penalties, accessory or otherwise, or
of the civil liability arising therefrom and in offenses involving damages to
property through criminal negligence, where the imposable fine does not exceed
P10,000.
The Rule shall not apply in a civil case where the cause of action is pleaded
with another cause of action subject to the ordinary procedure, nor to criminal case
where the offense charged is necessary related to another criminal case subject to the
ordinary procedure.1571
1570
asamendedbyAM021109SC
1571
Sec.1
369
Should the defendant fail to answer the complaint within ten (10) days from service
of summons, the court shall motu proprio or on motion of the plaintiff, shall render judgment
as may be warranted by the facts alleged in the complaint and limited to what is prayed for
therein.1572
This is without prejudice to the applicability of Sec. 4,1573 Rule 181574 if there are two
or more defendants.1575
A preliminary conference shall be held not later than thirty (30) days after the last
answer is filed.1576
The failure of the plaintiff to appear in the preliminary conference shall be cause for
the dismissal of his complaint. The defendant who appears in the absence of the plaintiff
shall be entitled to judgment on his counterclaim in accordance with Section 6.1577 All cross-
claims shall be dismissed.
If a sole defendant shall fail to appear, the plaintiff shall be entitled to judgment in
accordance with Sec. 6 hereof.1578 The Rule shall not apply where one (1) of two (2) or more
defendants sued under a common cause of action who had pleaded a common defense shall
appear at the preliminary conference.1579
1572
Sec.6
Thecourtmay,initsdiscretion,reducetheamountofdamagesandattorneysfeesclaimedforbeing
excessiveorotherwiseunconscionable.
1573
supra
1574
Itshallbethedutyofthepartiesandtheircounseltoappearatthepretrial.Thenonappearanceofa
party may be excused only if a valid cause is shown therefor or if a representative shall appear in his
behalffullyauthorizedinwritingtoenterintoanamicablesettlement,tosubmittoalternativemodesof
disputeresolution,andtoenterintostipulationsoradmissionsoffactsandofdocuments
1575
Sec.6
1576
The rules on pretrial in ordinary cases shall be applicable to the preliminary conference unless
inconsistentwiththeprovisionsoftheRule.
1577
supra
1578
Ibid.
1579
Sec.7
370
VIII. KatarungangPambarangay1580
A. Cases covered
Except those enumerated as exceptions under Sec. 408, RA 7160,1581 the following
cases are cognizable with the Katarungang Pambarangay:
(b) Those involving actual residents of different barangays within the same city or
municipality;
(c) All disputes involving real property or any interest therein where the real property
or the larger portion thereof is situated;
(d) Those arising at the workplace where the contending parties are employed or at
the institution where such parties are enrolled for study, where such workplace or institution
is located.
The lupon of each barangay shall have authority to bring together the parties actually
residing in the same municipality or city for amicable settlement of all disputes except:
(a) Where one party is the government or any subdivision or instrumentality thereof;
(b) Where one party is a public officer or employee, and the dispute relates to the
performance of his official functions;
(c) Offenses punishable by imprisonment exceeding one (1) year or a fine exceeding
P5,000;
(e) Where the dispute involves real properties located in different cities or
municipalities unless the parties thereto agree to submit their differences to amicable
settlement by an appropriate lupon;
1580
Secs.399422,LGC
Nocomplaint,petition,action,orproceedinginvolvinganymatterwithintheauthorityoftheluponshall
befiledorinstituteddirectlyincourtoranyothergovernmentofficeforadjudication,unlessthere
hasbeenaconfrontationbetweenthepartiesbeforetheluponchairmanorthepangkat,andthatno
conciliation orsettlement has been reachedas certified by the lupon secretaryor pangkat chairman as
attestedbytheluponorpangkatchairmanorunlessthesettlementhasbeenrepudiatedbytheparties
thereto(Sec.411)
1581
infra
371
(f) Disputes involving parties who actually reside in barangays of different cities or
municipalities, except where such barangay units adjoin each other and the parties thereto
agree to submit their differences to amicable settlement by an appropriate lupon;
(g) Such other classes of disputes which the President may determine in the interest
of justice or upon the recommendation of the Secretary of Justice;1582
(i) Disputes where urgent legal action is necessary to prevent injustice from being
committed or further continued, specially the following:
(k) Where the dispute arises from the Comprehensive Agrarian Reform Law;1586
(l) Actions to annul judgment upon a compromise which can be filed directly in
1587
court.
The court in which non-criminal cases not falling within the authority of the lupon
under the Code are filed may, at any time before trial, motu proprio refer the case to the lupon
concerned for amicable settlement.1588
C. Venue
(a) Disputes between persons actually residing in the same barangay - before the
lupon of said barangay.
(b) Involving actual residents of different barangays within the same city or
municipality - in the barangay where the respondent or any of the respondents actually
resides, at the election of the complainant.
1582
Sec.408,R.A.7160
1583
The reason is that only individuals shall be parties to barangay conciliation proceedings either as
complainantsorrespondents.
1584
suchaspreliminaryinjunction,attachment,replevinandsupportpendentelite
1585
Montoyavs.Escayo,17SCRA442
1586
Secs.46and47,R.A.6657
1587
Sanchezvs.Tupas,158SCRA459
1588
Sec.408
372
(c) All disputes involving real property or any interest therein - in the barangay where
the real property or the larger portion thereof is situated.
(d) Arising at the workplace where the contending parties are employed or at the
institution where such parties are enrolled for study - in the barangay where such workplace
or institution is located.1589
E. Execution
F. Repudiation
Any party to the dispute may, within ten (10) days from the date of the settlement,
repudiate the same by filing with the lupon chairman a statement to that effect sworn to
before him, where the consent is vitiated by fraud, violence, or intimidation. Such
repudiation shall be sufficient basis for the issuance of the certification for filing a complaint
as hereinabove provided.1592
1589
Objections to venue shall be raised in the mediation proceedings before the punong barangay;
otherwise, the same shall be deemed waived. Any legal question which may confront the punong
barangayinresolvingobjectionstovenuehereinreferredtomaybesubmittedtotheSecretaryofJustice,
orhisdulydesignatedrepresentative,whoserulingthereonshallbebinding(Sec.409)
1590
SeeB.(i),supra
1591
Sec.417
1592
Sec.418
373
Governs the procedure in actions before the Metropolitan Trial Courts, Municipal
Trial Courts in Cities, Municipal Trial Courts and Municipal Circuit Trial Courts for payment
of money where the value of the claim does not exceed One Hundred Thousand Pesos
(P100,000.00), exclusive of interest and costs.1594
The Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts, and Municipal Circuit Trial Courts shall apply this Rule in all actions which are:
(a) purely civil in nature where the claim or relief1595 prayed for by the plaintiff is
solely for payment or reimbursement of sum of money, and
(b) the civil aspect of criminal actions, either filed before the institution of the
criminal action, or reserved upon the filing of the criminal action in court, pursuant to Rule
1111596 of the Revised Rules of Criminal Procedure.1597
1593
AMNo.0887SC
1594
Sec.2
1595
Theseclaimsordemandsmaybe:
(a)Formoneyowedunderanyofthefollowing:
1.ContractofLease;
2.ContractofLoan;
3.ContractofServices;
4.ContractofSale;or
5.ContractofMortgage;
(b)Fordamagesarisingfromanyofthefollowing:
1.Faultornegligence;
2.Quasicontract;or
3.Contract;
(c)Theenforcementofabarangayamicablesettlementoranarbitrationawardinvolvingamoney
claim covered by this Rule pursuant to Sec. 417 of Republic Act 7160, otherwise known as the Local
GovernmentCodeof1991.
1596
seeReference
1597
Sec.4
1598
Form1SCC
1599
Form1A,SCC
374
good cause is shown for the admission of additional evidence. No formal pleading, other
than the Statement of Claim described is necessary to initiate a small claims action.1600
The defendant shall file with the court and serve on the plaintiff a duly accomplished
and verified Response within a non-extendible period of ten (10) days from receipt of
summons. The response shall be accompanied by certified photocopies of documents, as
well as affidavits of witnesses and other evidence in support thereof. No evidence shall be
allowed during the hearing which was not attached to or submitted together with the
Response, unless good cause is shown for the admission of additional evidence. The grounds
for the dismissal of the claim, under Rule 161601 of the Rules of Court, should be pleaded.1602
1600
Sec.5
1601
supra
1602
Sec.11
ShouldthedefendantfailtofilehisResponsewithintherequiredperiod,andlikewisefailtoappearatthe
datesetforhearing,thecourtshallrenderjudgmentonthesameday,asmaybewarrantedbythefacts.
ShouldthedefendantfailtofilehisResponsewithintherequiredperiodbutappearsatthedatesetfor
hearing,thecourtshallascertainwhatdefensehehastoofferandproceedtohear,mediateoradjudicate
thecaseonthesamedayasifaResponsehasbeenfiled(Sec.12).
1603
Sec.14
375
D. Appearances
The parties shall appear at the designated date of hearing personally. Appearance
through a representative must be for a valid cause. The representative of an individual-party
must not be a lawyer, and must be related to or next-of-kin of the individual-party. Juridical
entities shall not be represented by a lawyer in any capacity. The representative must be
authorized under a Special Power of Attorney1604 to enter into an amicable settlement of the
dispute and to enter into stipulations or admissions of facts and of documentary exhibits.1605
No attorney shall appear in behalf of or represent a party at the hearing, unless the
attorney is the plaintiff or defendant. If the court determines that a party cannot properly
present his/her claim or defense and needs assistance, the court may, in its discretion, allow
another individual who is not an attorney to assist that party upon the latters consent.1606
At the beginning of the court session, the judge shall read aloud a short statement
explaining the nature, purpose and the rule of procedure of small claims cases.1607
At the hearing, the judge shall exert efforts to bring the parties to an amicable
settlement of their dispute. Any settlement 1608 or resolution1609 of the dispute shall be
reduced into writing, signed by the parties and submitted to the court for
approval.1610Settlement discussions shall be strictly confidential and any reference to any
settlement made in the course of such discussions shall be punishable by contempt.1611
F. Finality of judgment
After the hearing, the court shall render its decision on the same day, based on the
facts established by the evidence.1612 The decision shall immediately be entered by the Clerk
of Court in the court docket for civil cases and a copy thereof forthwith served on the
parties. The decision shall be final and unappealable.1613
1604
Form5SCC
1605
Sec.16
1606
Sec.17
Failure of the plaintiff to appear shall be cause for the dismissal of the claim without prejudice. The
defendant who appears shall be entitled to judgment on a permissive counterclaim. Failure of the
defendanttoappearshallhavethesameeffectasfailuretofileaResponseunderSection12ofthisRule.
Thisshallnotapplywhereoneoftwoormoredefendantswhoaresuedunderacommoncauseofaction
andhavepleadedacommondefenseappearsatthehearing.Failureofbothpartiestoappearshallcause
thedismissalwithprejudiceofboththeclaimandcounterclaim(Sec.18).
1607
Sec.20
1608
Form7SCC
1609
Form8SCC
1610
Form12SCC
1611
Sec.21
1612
Form13SCC
1613
Sec.23
376
Governs the procedure in civil, criminal and special civil actions before the Regional
Trial Courts, Metropolitan Trial Courts, Municipal Trial Courts in Cities, Municipal Trial
Courts and Municipal Circuit Trial Courts involving enforcement or violations of
environmental and other related laws, rules and regulations such as but not limited to the
following:
(a) Act 3572, Prohibition Against Cutting of Tindalo, Akli, and Molave Trees;
(b) PD 705, Revised Forestry Code;
(c) PD 856, Sanitation Code;
(d) PD 979, Marine Pollution Decree;
(e) PD 1067, Water Code;
(f) PD1151, Philippine Environmental Policy of 1977;
(g) PD 1433, Plant Quarantine Law of 1978;
(h) PD 1586, Establishing an Environmental Impact Statement System
Including Other Environmental Management Related Measures and for Other
Purposes;
1614
AMNo.0968SC
377
1615
amendingtheNIRC
378
B. Civil Procedure
Except the Supreme Court, no court can issue a TRO or writ of preliminary
injunction against lawful actions of government agencies that enforce environmental laws or
prevent violations thereof.1617
The judge shall put the parties and their counsels under oath, and they shall remain
under oath in all pre-trial conferences. The judge shall exert best efforts to persuade the
parties to arrive at a settlement of the dispute. The judge may issue a consent decree
approving the agreement between the parties in accordance with law, morals, public order
and public policy to protect the right of the people to a balanced and healthful ecology.
Evidence not presented during the pre- trial, except newly discovered evidence, shall be
deemed waived.
1616
Sec.10,Part2,Rule2
1617
Ibid.
The formulation of this section is derived from the provisions of P.D. 605 and likewise covers the
provisionsofP.D.1818.Toobviatefutureconflictbetweenthepresentprovisionandthesetwolaws,the
prohibitionontheissuanceofTROremainsthegeneralrulewhileitsissuanceistheexception.Inavailing
oftheexception,themovantsmustovercomethepresumptionofregularityintheperformanceofaduty
by the respondent government agency or official. The judge must then require a higher standard and
heavier burden of proof. This section is formulated to support government and its agencies in their
responsibilities and tasks. Therefore, in the absence of evidence overcoming this presumption of
regularity, no court can issue a TRO or injunctive writ. It is only the SC which can issue a TRO or an
injunctivewritinexceptionalcases.
1618
Sec.5,Rule3
1619
Sec.4[b],Rule1,Part1
Sec.5,Rule3encouragespartiestoreachanagreementregardingsettlementthroughaconsentdecree,
whichgivesemphasistothepublicinterestaspectintheassertionoftherighttoabalancesandhealthful
ecology.
1620
Sec.2,Rule2
379
If it appears from the verified complaint with a prayer for the issuance of an
Environmental Protection Order (EPO) that the matter is of extreme urgency and the
applicant will suffer grave injustice and irreparable injury, the executive judge of the multiple
sala court before raffle or the presiding judge of a single-sala court, as the case may be, may
issue ex parte a TEPO effective for only seventy-two (72) hours from date of the receipt of
the TEPO by the party or person enjoined.
Within said period, the court where the case is assigned, shall conduct a summary
hearing to determine whether the TEPO may be extended until the termination of the case.
The court where the case is assigned shall periodically monitor the existence of acts that are
the subject matter of the TEPO even if issued by the executive judge, and may lift the same
at any time as circumstances may warrant. The applicant shall be exempted from the posting
of a bond for the issuance of a TEPO.1622
1621
WhiletheenumerationhavebeenadoptedinpartfromtheRuleonSummaryProcedureinresponse
tothequestionofdelaywhichoftenaccompaniesregularcases,summaryprocedureisnotadoptedinits
entirety given the complex and wide range of environmental cases. Procedural safeguards have been
introducedfortrulycomplexcaseswhichmaynecessitatefurtherevaluationfromthecourt.Amongthese
theexclusionofthemotionsforpostponement,newtrialandreconsideration,aswellasthepetitionfor
relieffromtheprohibition.
Motion for postponement, motion for new trial and petition for relief from judgment shall only be
allowedincertainconditionsofhighlymeritoriouscasesortopreventamanifestmiscarriageofjustice.
Thesatisfactionoftheseconditionsisrequiredsincethesemotionsareproneabuseduringlitigation.
Motion for intervention is permitted in order to allow the public to participate in the filing and
prosecution of environmental cases, which are imbued with public interest. Petitions for certiorari are
likewisepermittedsincetheseraisefundamentallyquestionsofjurisdiction.UndertheConstitution,the
SCmaynotbedeprivedofitscertiorarijurisdiction
1622
Sec.8,Rule2
TheRulesprovidethatanapplicantwhofilesfortheissuanceofaTEPOisexemptfromthepostingof
a bond, but the Rules also provide for safeguards for the possible pernicious effects upon the party or
personsoughttobeenjoinedbytheTEPO:
(a) A TEPO may only be issued in matters of extreme urgency and the applicant will suffer grave
injusticeandirreparableinjury,theTEPOeffectiveforonly72hours;and
(b)Thecourtshould periodically monitortheexistenceofactswhicharethesubjectmatterof the
TEPO,theTEPOcanbeliftedanytimeasthecircumstancesmaywarrant.
WhiletheTEPOmaybeissuedexparte,thisismoreoftheexception.Thegeneralruleontheconduct
ofahearingpursuanttodueprocessremains.
380
Any judgment directing the performance of acts for the protection, preservation or
rehabilitation of the environment shall be executory pending appeal unless restrained by the
appellate court.1624
Any Filipino citizen in representation of others1626 may file an action to enforce rights
or obligations under environmental laws.
Upon the filing of a citizen suit, the court shall issue an order which shall contain a
brief description of the cause of action and the reliefs prayed for, requiring all interested
parties to manifest their interest to intervene in the case within fifteen (15) days from notice
thereof. The plaintiff may publish the order once in a newspaper of a general circulation in
the Philippines or furnish all affected barangays copies of said order. Citizen suits filed under
R.A. No. 87491627 and R.A. No. 90031628 shall be governed by their respective provisions.
If warranted, the court may grant to the plaintiff proper reliefs which shall include
the protection, preservation or rehabilitation of the environment and the payment of
attorneys fees, costs of suit and other litigation expenses. It may also require the violator to
submit a program of rehabilitation or restoration of the environment, the costs of which
shall be borne by the violator, or to contribute to a special trust fund for that purpose
subject to the control of the court.
In the judgment, the court may convert the TEPO to a permanent EPO or issue a
writ of continuing mandamus directing the performance of acts which shall be effective until
the judgment is fully satisfied. The court may, by itself or through the appropriate
government agency, monitor the execution of the judgment and require the party concerned
to submit written reports on a quarterly basis or sooner as may be necessary, detailing the
progress of the execution and satisfaction of the judgment. The other party may, at its
option, submit its comments or observations on the execution of the judgment.1629
1623
Rule5
1624
AjudgmentrenderedpursuanttotheseRulesisimmediatelyexecutory.Itmaynotbestayedbythe
postingofabondunderRule39oftheRulesofCourtandthesoleremedylieswiththeappellatecourt.
TheappellatecourtcanissueaTROtorestraintheexecutionofthejudgmentandshouldtheappellate
court act with grave abuse of discretion in refusing to act on the application for a TRO, a petition for
certiorariunderRule65canbebroughtbeforetheSupremeCourt.
1625
Sec.5,Rule2;Sec.1,Rule5
1626
includingminorsorgenerationsyetunborn
1627
CleanAirAct
1628
EcologicalSolidWasteManagementAct
1629
In this provision, continuing mandamus is made available as a final relief. As a remedy,
continuingmandamusisdecidedlyanattractiverelief.Nevertheless,themonitoringfunctionattachedto
thewritisdecidedlytaxinguponthecourt.Thus,itismeanttobeanexceptionalremedy.Amongothers,
thenatureofthecaseinwhichthejudgmentisissuedwillbeadecisivefactorindeterminingwhetherto
381
A legal action filed to harass, vex, exert undue pressure or stifle any legal recourse
that any person, institution or the government has taken or may take in the enforcement of
environmental laws, protection of the environment or assertion of environmental rights shall
be treated as a SLAPP and shall be governed by these Rules.1632
issue a writ of continuing mandamus. A TEPO may be converted into a writ of continuing mandamus
shouldthecircumstanceswarrant.
1630
Sec.4[c],Rule1,Part1
The concept of continuing mandamus was originally enunciated in the case of Concerned
Residents of Manila Bay vs. MMDA, GR 17194798, Dec. 18, 2008. The Rules now codify the Writ of
ContinuingMandamusasoneoftheprincipalremedieswhichmaybeavailedofinenvironmentalcases.
1631
SLAPP;Rule6
SLAPPinCriminalCases:
Uponthefilingofaninformationincourtandbeforearraignment,theaccusedmayfileamotionto
dismissonthegroundthatthecriminalactionisaSLAPP.
Thecourtshallgrantthemotioniftheaccusedestablishesinthesummaryhearingthatthecriminal
casehasbeenfiledwithintenttoharass,vex,exertunduepressureorstifleanylegalrecoursethatany
person,institutionorthegovernmenthastakenormaytakeintheenforcementofenvironmentallaws,
protection ofthe environmentor assertionof environmental rights. If the court denies themotion, the
courtshallimmediatelyproceedwiththearraignmentoftheaccused.
1632
Sec.1
1633
Sec.2
382
The hearing on the defense of a SLAPP shall be summary in nature. The parties
must submit all available evidence in support of their respective positions. The party seeking
the dismissal of the case must prove by substantial evidence that his acts for the
enforcement of environmental law are a legitimate action for the protection, preservation
and rehabilitation of the environment. The party filing the action assailed as a SLAPP shall
prove by preponderance of evidence that the action is not a SLAPP and is a valid claim.1634
The defense of a SLAPP shall be resolved within thirty (30) days after the summary
hearing. If the court dismisses the action, the court may award damages, attorneys fees and
costs of suit under a counterclaim if such has been filed. The dismissal shall be with
prejudice. If the court rejects the defense of a SLAPP, the evidence adduced during the
summary hearing shall be treated as evidence of the parties on the merits of the case. The
action shall proceed in accordance with the Rules of Court.1635
1634
Sec.3
1635
Sec.4
383
C. Special Proceedings
1. Writ of Kalikasan1636
1636
Rule7
1637
Sec.1
The underlying emphasis in the Writ of Kalikasan is magnitude as it deals with damage that
transcendspoliticalandterritorialboundaries.Magnitudeisthusmeasuredaccordingtothequalification
setforthinthisRulewhenthereisenvironmentaldamagethatprejudicesthelife,healthorpropertyof
inhabitantsintwoormorecitiesorprovinces.
ThepetitionfortheissuanceofaWOKcanbefiledbyanyofthefollowing:
(a)anaturalorjuridicalperson;
(b)entityauthorizedbylaw;
(c)peoplesorganization,nongovernmentorganization,oranypublicinterestgroupaccreditedbyor
registeredwithanygovernmentagencyonbehalfofpersonswhoseconstitutionalrighttoabalanced
andhealthfulecologyisviolatedinvolvingenvironmentaldamageofsuchmagnitudeastoprejudice
life,health,orpropertyofinhabitantsintwoormorecitiesorprovinces.
Thosewho mayfile for this remedy must representthe inhabitantsprejudiced by theenvironmental
damagesubjectofthewrit.Therequirementofaccreditationofagroupororganizationisforthepurpose
ofverifyingitsexistence.Theaccreditationisamechanismtopreventflybynightgroupsfromabusing
thewrit.
The WOK is a special remedy available against an unlawful act or omission of a public official or
employee, or private individual or entity, involving environmental damage of such magnitude as to
prejudicethelife,healthorpropertyofinhabitantsintwoormorecitiesorprovinces.
Wheretofile:TotheSCorCA.
Theexemptionfrompaymentofdocketfeesisconsistentwiththecharacterofthereliefsavailable
under the writ, which excludes damages for personal injuries. This exemption also encourages public
participationinavailingoftheremedy.
1638
Sec.9
384
3. Discovery measures1639
(a) Ocular Inspection; order. The motion must show that an ocular inspection
order is necessary to establish the magnitude of the violation or the threat as to prejudice the
life, health or property of inhabitants in two or more cities or provinces. It shall state in
detail the place or places to be inspected. It shall be supported by affidavits of witnesses
having personal knowledge of the violation or threatened violation of environmental law.
After hearing, the court may order any person in possession or control of a
designated land or other property to permit entry for the purpose of inspecting or
photographing the property or any relevant object or operation thereon. The order shall
specify the person or persons authorized to make the inspection and the date, time, place
and manner of making the inspection and may prescribe other conditions to protect the
constitutional rights of all parties.
(b) Production or inspection of documents or things; order. The motion must show
that a production order is necessary to establish the magnitude of the violation or the threat
as to prejudice the life, health or property of inhabitants in two or more cities or provinces.
After hearing, the court may order any person in possession, custody or control of
any designated documents, papers, books, accounts, letters, photographs, objects or tangible
things, or objects in digitized or electronic form, which constitute or contain evidence
relevant to the petition or the return, to produce and permit their inspection, copying or
photographing by or on behalf of the movant. The production order shall specify the person
or persons authorized to make the production and the date, time, place and manner of
making the inspection or production and may prescribe other conditions to protect the
constitutional rights of all parties.
1639
Sec.12
1640
Directedagainsttheunlawfulneglectintheperformanceofanactwhichthelawspecificallyenjoinsas
a duty resulting from an office, trust or station in connection with the enforcement or violation of an
environmentallawruleorregulationorarighttherein;ortheunlawfulexclusionofanotherfromtheuse
orenjoymentofsuchright.Inbothinstances,thereisnootherplain,speedyandadequateremedyin
theordinarycourseoflaw.
385
the judgment is fully satisfied, and to pay damages sustained by the petitioner by reason of
the malicious neglect to perform the duties of the respondent, under the law, rules or
regulations. The petition shall also contain a sworn certification of non-forum shopping.
The petition shall be filed with the Regional Trial Court exercising jurisdiction over
the territory where the actionable neglect or omission occurred or with the Court of Appeals
or the Supreme Court.
If the petition is sufficient in form and substance, the court shall issue the writ and
require the respondent to comment on the petition within ten (10) days from receipt of a
copy thereof. Such order shall be served on the respondents in such manner as the court
may direct, together with a copy of the petition and any annexes thereto.
The court in which the petition is filed may issue such orders to expedite the
proceedings, and it may also grant a TEPO for the preservation of the rights of the parties
pending such proceedings.
After the comment is filed or the time for the filing thereof has expired, the court
may hear the case which shall be summary in nature or require the parties to submit
memoranda. The petition shall be resolved without delay within sixty (60) days from the date
of the submission of the petition for resolution.
If warranted, the court shall grant the privilege of the writ of continuing mandamus
requiring respondent to perform an act or series of acts until the judgment is fully satisfied
and to grant such other reliefs as may be warranted resulting from the wrongful or illegal
acts of the respondent. The court shall require the respondent to submit periodic
reports detailing the progress and execution of the judgment, and the court may, by itself or
through a commissioner or the appropriate government agency, evaluate and monitor
compliance. The petitioner may submit its comments or observations on the execution of
the judgment.
The periodic reports submitted by the respondent detailing compliance with the
judgment shall be contained in partial returns of the writ. Upon full satisfaction of the
judgment, a final return of the writ shall be made to the court by the respondent. If the court
finds that the judgment has been fully implemented, the satisfaction of judgment shall be
entered in the court docket.
Procedurally, its filing before the courts is similar to the filing of an ordinary writ of
mandamus. However, the issuance of a TEPO is made available as an auxillary remedy prior
to the issuance of the writ itself. As a special civil action, the WoCMa may be availed
of to compel the performance of an act specifically enjoined by law. It permits the court to
retain jurisdiction after judgment in order to ensure the successful implementation of the
reliefs mandated under the courts decision. For this purpose, the court may compel the
submission of compliance reports from the respondent government agencies as well as avail
of other means to monitor compliance with its decision. Its availability as a special civil
386
action likewise complements its role as a final relief in environmental civil cases and in the
WOK, where continuing mandamus may likewise be issued should the facts merit such relief.
Available to a broad range of persons such Available against unlawful act or omission of
as natural or juridical person, entity a public official or employee, or private
authorized by law, peoples organization, individual or entity, involving environmental
NGO, or any public interest group damage of such magnitude as to prejudice
accredited by or registered with any the life, health or property of inhabitants in
government agency, on behalf of persons two (2) or more cities or provinces. In
whose right to a balanced and healthful addition, magnitude of environmental
ecology is violated or threatened to be damage is a condition sine qua non in a
violated. petition for the issuance of a writ of
kalikasan and must be contained in the
verified petition.
The respondent is only the government or its The respondent may be a private individual
officers or entity.
Exempted from the payment of docket fees. Exempted from the payment of docket fees.
May be filed in the following: (a) the RTC Can only be filed with the SC or any station
exercising jurisdiction over the territory of the CA.
where the actionable neglect or omission
occurred; (b) the CA; or (c) the SC.
Does not contain any provision for Incorporates the procedural environmental
discovery measures right of access to information through the
use of discovery measures such as ocular
inspection order and production order.
Allows damages for the malicious neglect of No damages may be awarded in a petition
the performance of the legal duty of the for the issuance of a WOK consistent with
respondent, identical with Rule 65. the public interest character of the petition.
A party who avails of this petition but who
also wishes to be indemnified for injuries
suffered may file another suit for the
recovery of damages since the Rule on WOK
allows for the institution of separate actions.
387
D. Criminal Procedure
Any offended party, peace officer or any public officer charged with the enforcement
of an environmental law may file a complaint before the proper officer in accordance with
the Rules of Court.1641
When a criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged, shall be deemed instituted with the criminal action unless
the complainant waives the civil action, reserves the right to institute it separately or
institutes the civil action prior to the criminal action. Unless the civil action has been
instituted prior to the criminal action, the reservation of the right to institute separately the
civil action shall be made during arraignment.
In case civil liability is imposed or damages are awarded, the filing and other legal
fees shall be imposed on said award in accordance with Rule 141 of the Rules of Court, and
the fees shall constitute a first lien on the judgment award. The damages awarded in cases
where there is no private offended party, less the filing fees, shall accrue to the funds of the
agency charged with the implementation of the environmental law violated. The award shall
be used for the restoration and rehabilitation of the environment adversely affected.1642
(a) When, in his presence, the person to be arrested has committed, is actually
committing or is attempting to commit an offense; or
(b) When an offense has just been committed, and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested has
committed it.
1641
Sec.1,Rule9
1642
Sec.1,Rule10
1643
supra
1644
Sec.1,Rule11
Allwarrantsofarrestissuedbythecourtshallbeaccompaniedbyacertifiedtruecopyoftheinformation
filedwiththeissuingcourt.
388
(a) The apprehending officer having initial custody and control of the seized items,
equipment, paraphernalia, conveyances and instruments shall physically inventory and
whenever practicable, photograph the same in the presence of the person from whom such
items were seized.
(b) Thereafter, the apprehending officer shall submit to the issuing court the return
of the search warrant within five (5) days from date of seizure or in case of warrantless
arrest, submit within five (5) days from date of seizure, the inventory report, compliance
report, photographs, representative samples and other pertinent documents to the
public prosecutor for appropriate action.
(c) Upon motion by any interested party, the court may direct the auction sale of
seized items, equipment, paraphernalia, tools or instruments of the crime. The court shall,
after hearing, fix the minimum bid price based on the recommendation of the concerned
government agency. The sheriff shall conduct the auction.
(d) The auction sale shall be with notice to the accused, the person from whom the
items were seized, or the owner thereof and the concerned government agency.
(e) The notice of auction shall be posted in three (3) conspicuous places in the city
or municipality where the items, equipment, paraphernalia, tools or instruments of the crime
were seized.
(f) The proceeds shall be held in trust and deposited with the government
depository bank for disposition according to the judgment.1645
5. Bail1646
May be filed with the court where the case is pending, or in the absence or
unavailability of the judge thereof, with any regional trial judge, metropolitan trial judge,
municipal trial judge or municipal circuit trial judge in the province, city or municipality. If
the accused is arrested in a province, city or municipality other than where the case is
pending, bail may also be filed with any Regional Trial Court of said place, or if no judge
thereof is available, with any metropolitan trial judge, municipal trial judge or municipal
1645
Sec.2,Rule12
The foregoing provisions concern two aspects of seizure. The first aspect concerns the chain of
custodyoftheseizeditems,equipment,paraphernalia,conveyances,andinstruments.
Subparagraphs (a) and (b) are meant to assure the integrity of the evidence after seizure, for later
presentation at the trial. The second aspect deals with the disposition of the seized materials. This
addressestheconcernofdeteriorationofthematerials,mostofwhichareperishable,whileincustodia
legis.Theprovisioncontainsproceduralsafeguardstoassurethepreservationofthevalueoftheseized
materials,shouldthecaseeventuallybedecidedinfavoroftheirownerorpossessor.Subparagraph(b)
makestheprovisioncoverbothseizureswithwarrantandwarrantlessseizures.Themotiontodirectthe
auctionsaleundersubparagraph(c)maybefiledbyanyinterestedpartytoobviateanyoppressiveuse
ofseizuretotheprejudiceofanyparty.
1646
Rule14
389
circuit trial judge therein. If the court grants bail, the court may issue a hold-departure order
in appropriate cases
Before granting the application for bail, the judge must read the information in a
language known to and understood by the accused and require the accused to sign a written
undertaking, as follows:
(a) To appear before the court that issued the warrant of arrest for arraignment
purposes on the date scheduled, and if the accused fails to appear without justification on
the date of arraignment, accused waives the reading of the information and authorizes the
court to enter a plea of not guilty on behalf of the accused and to set the case for trial;
(b) To appear whenever required by the court where the case is pending; and
(c) To waive the right of the accused to be present at the trial, and upon failure of
the accused to appear without justification and despite due notice, the trial may proceed in
absentia.1647
The court shall set the arraignment of the accused within fifteen (15) days from the
time it acquires jurisdiction over the accused, with notice to the public prosecutor and
offended party or concerned government agency that it will entertain plea-bargaining on the
date of the arraignment.
1647
A key innovation in this section is the execution of an undertaking by the accused and counsel,
empowering the judge to enter a plea of not guilty, in the event the accused fails to appear at the
arraignment.Thisauthorizationpermitsthecourttotrythecaseinabsentia,withintheperiodprovided
undertheseRules.Thisaddressesafundamentalconcernsurroundingtheprosecutionofcriminalcasesin
general,wheretheaccusedjumpsbailandthecourtunabletoproceedwiththedispositionofthecasein
viewoftheabsenceoftheaccusedandthefailuretoarraignthelatter.
1648
Rule15
1649
Where the prosecution and offended party or concerned government agency agree to the plea
offeredbytheaccused,thecourtshall:
(a)Issueanorderwhichcontainsthepleabargainingarrivedat;
(b)Proceedtoreceiveevidenceonthecivilaspectofthecase,ifany;and
(c)Renderandpromulgatejudgmentofconviction,includingthecivilliabilityfordamages.
This provision requires the consent of the prosecutor, the offended party or concerned
governmentagencyinordertosuccessfullyarriveatavalidpleabargainingagreement.Pleabargainingis
consideredatarraignmentinordertoavoidthesituationwhereaninitialpleaischangedinthecourseof
thetrialinviewofasuccessfulpleabargain.
390
7. Pre-trial1650
After the arraignment, the court shall set the pre-trial conference within thirty (30)
days. It may refer the case to the branch clerk of court, if warranted, for a preliminary
conference to be set at least three (3) days prior to the pre-trial.
(a) To assist the parties in reaching a settlement of the civil aspect of the case;
(b) To mark the documents to be presented as exhibits;
(c) To attach copies thereof to the records after comparison with the originals;
(d) To ascertain from the parties the undisputed facts and admissions on the
genuineness and due execution of documents marked as exhibits;
(e) To consider such other matters as may aid in the prompt disposition of the case;
(f) To record the proceedings during the preliminary conference in the Minutes of
PreliminaryConference to be signed by the parties and counsel;
(g) To mark the affidavits of witnesses which shall be in question and answer form
and shall constitute the direct examination of the witnesses; and
(h) To attach the Minutes and marked exhibits to the case record before the pre-trial
proper. The parties or their counsel must submit to the branch clerk of court the names,
addresses and contact numbers of the affiants.1651
1650
Rule16
1651
Duringthepretrial,thecourtshall:
(a)Placethepartiesandtheircounselsunderoath;
(b) Adopt the minutes of the preliminary conference as part of the pretrial proceedings, confirm
markingsofexhibitsorsubstitutedphotocopiesandadmissionsonthegenuinenessanddueexecutionof
documents,andlistobjectandtestimonialevidence;
(c)Scrutinizetheinformationandthestatementsintheaffidavitsandotherdocumentswhichform
partoftherecordofthepreliminaryinvestigationtogetherwithotherdocumentsidentifiedand
markedasexhibitstodeterminefurtheradmissionsoffactsasto:
1.Thecourtsterritorialjurisdictionrelativetotheoffense(s)charged;
2.Qualificationofexpertwitnesses;and
3.Amountofdamages;
(d)Definefactualandlegalissues;
(e) Ask parties to agree on the specific trial dates and adhere to the flow chart determined by the
courtwhichshallcontainthetimeframesforthedifferentstagesoftheproceedinguptopromulgationof
decision;
(f) Require the parties to submit to the branch clerk of court the names, addresses and contact
numbersofwitnessesthatneedtobesummonedbysubpoena;and
(g) Consider modification of order of trial if the accused admits the charge but interposes a lawful
defense.
Allquestionsorstatementsmustbedirectedtothecourt.
391
8. Subsidiary Liability1652
In case of conviction of the accused and subsidiary liability is allowed by law, the
court may, by motion of the person entitled to recover under judgment, enforce such
subsidiary liability against a person or corporation subsidiarily liable under Article 1021653 and
Article 1031654 of the Revised Penal Code.
E. Evidence
1. Precautionary principle1655
It states that when human activities may lead to threats of serious and irreversible
damage to the environment that is scientifically plausible but uncertain, actions shall be taken
to avoid or diminish that threat.1656
All agreements or admissions made or entered during the pretrial conference shall be reduced in
writingandsignedbytheaccusedandcounsel;otherwise,theycannotbeusedagainsttheaccused.The
agreements covering the matters referred to in Section 1, Rule 118 of the Rules of Court shall be
approvedbythecourt.
Allproceedingsduringthepretrialshallberecorded,thetranscriptspreparedandtheminutessigned
bythepartiesortheircounsels.
Thecourtshallissueapretrialorderwithinten(10)daysaftertheterminationofthepretrial,setting
forth the actions taken during the pretrial conference, the facts stipulated, the admissions made,
evidencemarked,thenumberofwitnessestobepresentedandthescheduleoftrial.Theordershallbind
thepartiesandcontrolthecourseofactionduringthetrial.
1652
Rule18
1653
In default of the persons criminally liable, innkeepers, tavernkeepers, and any other persons or
corporations shall be civilly liable for crimes committed in their establishments, in all cases where a
violationofmunicipalordinancesorsomegeneralorspecialpoliceregulationshallhavebeencommitted
bythemortheiremployees.
Innkeepers are also subsidiarily liable for the restitution of goods taken by robbery or theft within
their houses from guests lodging therein, or for the payment of the value thereof, provided that such
guests shall have notified in advance the innkeeper himself, or the person representing him, of the
deposit of such goods within the inn; and shall furthermore have followed the directions which such
innkeeper or his representative may have given them with respect to the care and vigilance over such
goods.Noliabilityshallattachincaseofrobberywithviolenceagainstorintimidationofpersonsunless
committedbytheinnkeeper'semployees.
1654
Thesubsidiaryliabilityestablishedinthenextprecedingarticleshallalsoapplytoemployers,teachers,
persons, and corporations engaged in any kind of industry for felonies committed by their servants,
pupils,workmen,apprentices,oremployeesinthedischargeoftheirduties.
1655
Rule20
1656
Sec.4[f],Rule1,Part1
TheadoptionoftheprecautionaryprincipleaspartoftheseRules,specificallyrelatingtoevidence,
recognizes that exceptional cases may require its application. The inclusion of a definition of this
principleisanintegralpartofPartV,RuleonEvidenceinenvironmentalcasesinordertoeasetheburden
onthepart ofordinaryplaintiffstoprovetheircauseof action.In itsessence, precautionary principle
calls for the exercise of caution in the face of risk and uncertainty. While the principle can be
appliedinanysettinginwhichriskanduncertaintyarefound,ithasevolvedpredominantlyinandtoday
remainsmostcloselyassociatedwiththeenvironmentalarena.
392
When there is a lack of full scientific certainty in establishing a casual link between
human activity and environmental effect, the court shall apply the precautionary principle in
resolving the case before it. The constitutional right of the people to a balanced and
healthful ecology shall be given the benefit of the doubt.1657
The precautionary principle bridges the gap in cases where scientific certainty in
factual findings cannot be achieved. By applying this principle, the court may construe a set
of facts as warranting either judicial action or inaction, with the goal of preserving and
protecting the environment. This may be further evinced from the second paragraph of Sec.
1,1658 Rule 20, where bias is created in favor of constitutional right of the people to a
balanced and healthful ecology. In effect, this principle shifts the burden of evidence of
harm away from those likely to suffer harm and onto those desiring to change the status quo.
This principle should be treated as a principle of last resort, where application of the
regular Rules of Evidence would cause in an inequitable result for the environmental
plaintiff:
When these features - uncertainty, the possibility of irreversible harm, and the
possibility of serious harm coincide, the case for the precautionary principle is strongest.
In applying the precautionary principle, the following factors, among others, may be
considered:
1657
Sec.1,Rule20,PartV
1658
Preference shall be given to habeas corpus cases, election cases, special civil actions, and those so
requiredbylaw.
1659
Sec.2
393
2. Documentary evidence1660
This Rule shall apply to all actions, proceedings, and incidents requiring the reception
of evidence before:
(1) The Metropolitan Trial Courts, the Municipal Trial Courts in Cities, the
Municipal Trial Courts, the Municipal Circuit Trial Courts, and the Shari' a Circuit Courts
but shall not apply to small claims cases under A.M. 08-8-7-SC;
(2) The Regional Trial Courts and the Shari' a District Courts;
(3} The Sandiganbayan, the Court of Tax Appeals, the Court of Appeals, and the
Shari' a Appellate Courts;
(4) The investigating officers and bodies authorized by the Supreme Court to receive
evidence, including the Integrated Bar of the Philippine (IBP); and
(5) The special courts and quasi-judicial bodies, whose rules of procedure are subject
to disapproval of the Supreme Court, insofar as their existing rules of procedure contravene
the provisions of this Rule.1664
1660
Rule21
1661
Sec.1
1662
Sec.2
Theseprovisionsseektoaddressspecificevidentiaryconcernsinenvironmentallitigation,whereevidence
isoftendifficulttoobtainandpreserve.TheysupplementthemainRulesonEvidence,whichshallhave
fullapplicabilitytoenvironmentalcases.
1663
A.M.No.1288SC;seeReference
1664
Sec.1(a)
394
Contents:
A judicial affidavit shall be prepared in the language known to the witness and, if not
in English or Filipino accompanied by a translation in English or Filipino, and shall contain.
the following:
(a) The name, age, residence or business address, and occupation of the witness;
(b) The name and address of the lawyer who conducts or supervises the examination
of the witness and the place where the examination is being held;
(c) A statement that the witness is answering the questions asked of him, fully
conscious that he does so under oath, and that he may face criminal liability for false
testimony or perjury;
(d) Questions asked of the witness and his corresponding answers, consecutively
numbered, that:
(1) Show the circumstances under which the witness acquired the facts upon
which he testifies;
(2) Elicit from him those facts which are relevant to the issues that the case
presents; and
(3) Identify the attached docun1entary and object evidence and establish
their authenticity in accordance with the Rules of Court;
(e) The signature of the witness over his printed nan1e; and
(f) A jurat with the signature of the notary public who administers the oath or an
officer who is authorized by law to adn1inister the same.1665
Procedure:
(a) The parties shall file with the court and serve on the adverse party, personally or
by licensed courier service, not later than five days before pre-trial or preliminary conference
or the scheduled hearing with respect to motions and incidents, the following:
(1) The judicial affidavits of their witnesses, which shall take the place of
such witnesses' direct testimonies; and
1665
Sec.3
395
case of the complainant or the plaintiff, and as Exhibits 1, 2, 3, and so on in the case
of the respondent or the defendant.
(b) Should a party or a witness desire to keep the original document or object
evidence in his possession, he may, after the same has been identified, marked as exhibit, and
authenticated, warrant in his judicial affidavit that the copy or reproduction attached to such
affidavit is a faithful copy or reproduction of that original. In addition, the party or witness
shall bring the original document or object evidence for comparison during the preliminary
conference with the attached copy, reproduction, or pictures, failing which the latter shall
not be admitted. This is without prejudice to the introduction of secondary evidence in
place of the original when allowed by existing rules.1666
(1) Where the maximum of the imposable penalty does not exceed six years;
(2) Where the accused agrees to the use of judicial affidavits, irrespective of the
penalty involved; or
(3) With respect to the civil aspect of the actions, whatever the penalties involved are
D. Effect of non-compliance
A party who fails to submit the required judicial affidavits and exhibits on time shall
be deemed to have waived their submission. The court may, however, allow only once the
late submission of the same provided, the delay is for a valid reason, would not unduly
prejudice the opposing party, and the defaulting party pays a fine of not less than
Pl,OOO.OO nor more than P5,OOO.OO, at the discretion of the court.
The court shall not consider the affidavit of any witness who fails to appear at the
scheduled hearing of the case as required. Counsel who fails to appear without valid cause
despite notice shall be deemed to have waived his client's right to confront by cross-
examination the witnesses there present.
The court shall not admit as evidence judicial affidavits that do not conform to the
content requirements of Section 31667 and the attestation requirement of Section 4.1668 The
1666
Sec.2
1667
supra
1668
Swornattestationofthelawyer.
(a)Thejudicialaffidavitshallcontainaswornattestationattheend,executedbythelawyerwho
conductedorsupervisedtheexaminationofthewitness,totheeffect
that:
(1)Hefaithfullyrecordedorcausedtoberecordedthequestionsheaskedandthecorresponding
answersthatthewitnessgave;and
(2)Neitherhenoranyotherpersonthenpresentorassistinghimcoachedthewitnessregardingthe
latter'sanswers.
396
court may, however, allow only once the subsequent submission of the compliant
replacement affidavits before the hearing or trial provided the delay is for a valid reason and
Judicial Affidavit Rule would not unduly prejudice the opposing party and provided further,
that public or private counsel responsible for their preparation and submission pays a fine of
not less than Pl,OOO.OO nor more than P5,OOO.OO, at the discretion of the court.1669
The provisions of the Rules of Court and the rules of procedure governing
investigating officers and bodies authorized by the Supreme Court to receive evidence are
repealed or modified insofar as these are inconsistent with the provisions of this Rule. The
rules of procedure governing quasi-judicial bodies inconsistent herewith are hereby
disapproved.1670
(b)Afalseattestationshallsubjectthelawyermentionedtodisciplinaryaction,includingdisbarment.
1669
Sec.10
1670
Sec.11
1671
A.M.No.1194SC;id.
397
Reference
RulesofCourt
RULE 42
A party desiring to appeal from a decision of the Regional Trial Court rendered in the
exercise of its appellate jurisdiction may file a verified petition for review with the Court of Appeals,
paying at the same time to the clerk of said court the corresponding docket and other lawful fees,
depositing the amount of P500.00 for costs, and furnishing the Regional Trial Court and the adverse
party with a copy f the petition. The petition shall be filed and served within fifteen (15) days from
notice of the decision sought to be reviewed or of the denial of petitioners motion for new trial or
reconsideration filed in due time after judgment. Upon proper motion and the payment of the full
amount of the docket and other lawful fees and the deposit for costs before the expiration of the
reglementary period, the Court of Appeals may grant an additional period of fifteen (15) days only
within which to file the petition for review. No further extension shall be granted except for the most
compelling reason and in no case to exceed fifteen (15) days.
The petition shall be filed in seven (7) legible copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a) state the full names of the parties to the
case, without impleading the lower courts or judges thereof either as petitioners or respondents; (b)
indicate the specific material dates showing that it was filed on time; (c) set forth concisely a
statement of the matters involved, the issues raised, the specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the
allowance of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the
judgments or final orders of both lower courts, certified correct by the clerk of court of the Regional
Trial Court, the requisite number of plain copies thereof and of the pleadings and other material
portions of the record as would support the allegations of the petition.
The petitioner shall also submit together with the petition a certification under oath that he
has not theretofore commenced any other action involving the same issues in the Supreme Court, the
Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other
action or proceeding, he must state the status of the same; and if he should thereafter learn that a
similar action or proceeding has been filed or is pending before the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly
inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom.
398
RULE 43
Section 1. Scope.
This Rule shall apply to appeals from judgments or final orders of the Court of Tax Appeals
and from awards, judgments, final orders or resolutions of or authorized by any quasi-judicial agency
in the exercise of its quasi-judicial functions. Among these agencies are the Civil Service
Commission, Central Board of Assessment Appeals, Securities and Exchange Commission, Office of
the President, Land Registration Authority, Social Security Commission, Civil Aeronautics Board,
Bureau of Patents, Trademarks and Technology Transfer, National Electrification Administration,
Energy Regulatory Board, National Telecommunications Commission, Department of Agrarian
Reform under Republic Act No. 6657, Government Service Insurance System, Employees
Compensation Commission, Agricultural Inventions Board, Insurance Commission, Philippine
Atomic Energy Commission, Board of Investments, Construction Industry Arbitration Commission,
and voluntary arbitrators authorized by law.
This Rule shall not apply to judgments or final orders issued under the Labor Code of the
Philippines.
An appeal under this Rule may be taken to the Court of Appeals within the period and in the
manner herein provided, whether the appeal involves questions of fact, of law, or mixed questions of
fact and law.
The appeal shall be taken within fifteen (15) days from notice of the award, judgment, final
order or resolution, or from the date of its last publication, if publication is required by law for its
effectivity, or of the denial of petitioners motion for new trial or reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Only one (1) motion for
reconsideration shall be allowed. Upon proper motion and the payment of the full amount of the
docket fee before the expiration of the reglementary period, the Court of Appeals may grant an
additional period of fifteen (15) days only within which to file the petition for review. No further
extension shall be granted except for the most compelling reason and in no case to exceed fifteen
(15) days.
Appeal shall be taken by filing a verified petition for review in seven (7) legible copies with
the Court of Appeals, with proof of service of a copy thereof on the adverse party and on the court
or agency a quo. The original copy of the petition intended for the Court of Appeals shall be
indicated as such by the petitioner.
399
Upon the filing of the petition, the petitioner shall pay to the clerk of court of the Court of
Appeals the docketing and other lawful fees and deposit the sum of P500.00 for costs. Exemption
from payment of docketing and other lawful fees and the deposit for costs may be granted by the
Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit
for costs within fifteen (15) days from notice of the denial.
The petition for review shall (a) state the full names of the parties to the case, without
impleading the court or agencies either as petitioners or respondents; (b) contain a concise statement
of the facts and issues involved and the grounds relied upon for the review; (c) be accompanied by a
clearly legible duplicate original or a certified true copy of the award, judgment, final order or
resolution appealed from, together with certified true copies of such material portions of the record
referred to therein and other supporting papers; and (d) contain a sworn certification against forum
shopping as provided in the last paragraph of section 2, Rule 42. The petition shall state the specific
material dates showing that it was filed within the period fixed herein.
The failure of the petitioner to comply with any of the foregoing requirements regarding the
payment of the docket and other lawful fees, the deposit for costs, proof of service of the petition,
and the contents of and the documents which should accompany the petition shall be sufficient
ground for the dismissal thereof.
The Court of Appeals may require the respondent to file a comment on the petition, not a
motion to dismiss, within ten (10) days from notice, or dismiss the petition if it finds the same to be
patently without merit, prosecuted manifestly for delay, or that the questions raised therein are too
unsubstantial to require consideration.
The comment shall be filed within ten (10) days from notice in seven (7) legible copies and
accompanied by clearly legible certified true copies of such material portions of the record referred to
therein together with other supporting papers. The comment shall (a) point out insufficiencies or
inaccuracies in petitioners statement of facts and issues; and (b) state the reasons why the petition
should be denied or dismissed. A copy thereof shall be served on the petitioner, and proof of such
service shall be filed with the Court of Appeals.
If upon the filing of the comment or such other pleadings or documents as may be required
or allowed by the Court of Appeals or upon the expiration of the period for the filing thereof, and on
the basis of the petition or the records the Court of Appeals finds prima facie that the court or
agency concerned has committed errors of fact or law that would warrant reversal or modification of
the award, judgment, final order or resolution sought to be reviewed, it may give due course to the
petition; otherwise, it shall dismiss the same. The findings of fact of the court or agency concerned,
when supported by substantial evidence, shall be binding on the Court of Appeals.
400
Within fifteen (15) days from notice that the petition has been given due course, the Court
of Appeals may require the court or agency concerned to transmit the original or a legible certified
true copy of the entire record of the proceeding under review. The record to be transmitted may be
abridged by agreement of all parties to the proceeding. The Court of Appeals may require or permit
subsequent correction of or addition to the record.
The appeal shall not stay the award, judgment, final order or resolution sought to be
reviewed unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.
If the petition is given due course, the Court of Appeals may set the case for oral argument
or require the parties to submit memoranda within a period of fifteen (15) days from notice. The case
shall be deemed submitted for decision upon the filing of the last pleading or memorandum required
by these Rules or by the Court of Appeals.
RULE 45
A party desiring to appeal by certiorari from a judgment or final order or resolution of the
Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized
by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall
raise only questions of law which must be distinctly set forth.
The petition shall be filed within fifteen (15) days from notice of the judgment or final order
or resolution appealed from, or of the denial of the petitioners motion for new trial or
reconsideration filed in due time after notice of the judgment. On motion duly filed and served, with
full payment of the docket and other lawful fees and the deposit for costs before the expiration of
the reglementary period, the Supreme Court may for justifiable reasons grant an extension of thirty
(30) days only within which to file the petition.
Unless he has theretofore done so, the petitioner shall pay the corresponding docket and
other lawful fees to the clerk of court of the Supreme Court and deposit the amount of P500.00 for
costs at the time of the filing of the petition. Proof of service of a copy thereof on the lower court
concerned and on the adverse party shall be submitted together with the petition.
401
The petition shall be filed in eighteen (18) copies, with the original copy intended for the
court being indicated as such by the petitioner, and shall (a) state the full name of the appealing party
as the petitioner and the adverse party as respondent, without impleading the lower courts or judges
thereof either as petitioners or respondents; (b) indicate the material dates showing when notice of
the judgment or final order or resolution subject thereof was received, when a motion for new trial
or reconsideration, if any, was filed and when notice of the denial thereof was received; (c) set forth
concisely a statement of the matters involved, and the reasons or arguments relied on for the
allowance of the petition; (d) be accompanied by a clearly legible duplicate original, or a certified true
copy of the judgment or final order or resolution certified by the clerk of court of the court a quo
and the requisite number of plain copies thereof, and such material portions of the record as would
support the petition; and (e) contain a sworn certification against forum shopping as provided in the
last paragraph of section 2, Rule 42.
RULE 57
PRELIMINARY ATTACHMENT
If the property attached is claimed by any person other than the party against whom
attachment had been issued or his agent, and such person makes an affidavit of his title thereto, or
right to the possession thereof, stating the grounds of such right or title, and serves such affidavit
upon the sheriff while the latter has possession of the attached party, and a copy thereof upon the
attaching party, the sheriff shall not be bound to keep the property under attachment, unless the
attaching party or his agent, on demand of the sheriff, shall file a bond approved by the court to
indemnify the third-party claimant in a sum not less than the value of the property levied upon. In
case of disagreement as to such value, the same shall be decided by the court issuing the writ of
attachment. No claim for damages for the taking or keeping of the property may be enforced against
the bond unless the action therefor is filed within one hundred twenty (120) days from the date of
the filing of the bond.
The sheriff shall not be liable for damages for the taking or keeping of such property, to any
such third-party claimant, if such bond shall be filed. Nothing herein contained such prevent such
claimant or any third person from vindicating his claim to the property, or prevent the attaching
party from claiming damages against a third-party claimant who filed a frivolous or plainly spurious
claim, in the same or a separate action.
When the writ of attachment is issued in favor of the Republic of the Philippines, or any
officer duly representing it, the filing of such bond shall not be required, and in case the sheriff is
sued for damages as a result of the attachment, he shall be represented by the Solicitor General, and
if held liable therefor, the actual damages adjudged by the court shall be paid by the National
Treasurer out of the funds to be appropriated for the purpose.
402
RULE 90
Sec. 1. When order for distribution of residue made. - When the debts, funeral charges, and expenses
of administration, the allowance to the widow, and inheritance tax, if any, chargeable to the estate in
accordance with law, have been paid, the court, on the application of the executor or administrator,
or of a person interested in the estate, and after hearing upon notice, shall assign the residue of the
estate to the persons entitled to the same, naming them and the proportions, or parts, to which each
is entitled, and such person may demand and recover their respective shares from the executor or
administrator, or any other person having the same in his possession. If there is a controversy before
the court as to who are the lawful heirs of the deceased person or as to the distributive shares to
which each person is entitled under the law, the controversy shall be heard and decided as in ordinary
cases.
No distribution shall be allowed until the payment of the obligations above mentioned has been
made or provided for, unless the distributees, or any of them, give a bond, in a sum to be fixed by
the court, conditioned for the payment of said obligations within such time as the court directs.
Sec. 3. By whom expenses of partition paid. - If at the time of the distribution the executor or
administrator has retained sufficient effects in his hands which may lawfully be applied for the
expenses of partition of the properties distributed, such expenses of partition may be paid by such
executor or administrator when it appears equitable to the court and not inconsistent with the
intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective
shares or interest in the premises, and the apportionment shall be settled and allowed by the court,
and, if any person interested in the partition does not pay his proportion or share, the court may
issue an execution in the name of the executor or administrator against the party not paying for the
sum assessed. chan robles virtual law library
Sec. 4. Recording the order of partition of estate. - Certified copies of final orders and judgments of
the court relating to the real estate or the partition thereof shall be recorded in the registry of deeds
of the province where the property is situated.
Section 1. Institution of criminal and civil actions. (a) When a criminal action is instituted,the civil
action for the recovery of civil liability arising from the offense charged shall be deemed instituted
with the criminal action unless the offended party waives the civil action, reserves the right to
institute it separately or institutes the civil action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the
prosecution starts presenting its evidence and under circumstances affording the offended party a
reasonable opportunity to make such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral,
nominal, temperate, or exemplary damages without specifying the amount thereof in the complaint
403
or information, the filing fees therefore shall constitute a first lien on the judgment awarding such
damages.
Where the amount of damages, other than actual, is specified in the complaint or
information, the corresponding filing fees shall be paid by the offended party upon the filing thereof
in court.
Except as otherwise provided in these Rules, no filing fees shall be required for actual
damages.
(b) The criminal action for violation of Batas Pambansa Blg. 22 shall be deemed to include
the corresponding civil action. No reservation to file such civil action separately shall be allowed.
Upon filing of the aforesaid joint criminal and civil actions, the offended party shall pay in
full the filing fees based on the amount of the check involved, which shall be considered as the actual
damages claimed. Where the complaint or information also seeks to recover liquidated, moral,
nominal, temperate or exemplary damages, the offended party shall pay additional filing fees based
on the amounts alleged therein. If the amounts are not so alleged but any of these damages are
subsequently awarded by the court, the filing fees based on the amount awarded shall constitute a
first lien on the judgment.
Where the civil action has been filed separately and trial thereof has not yet commenced, it
may be consolidated with the criminal action upon application with the court trying the latter case. If
the application is granted, the trial of both actions shall proceed in accordance with section 2 of this
Rule governing consolidation of the civil and criminal actions.
Sec. 2. When separate civil action is suspended. After the criminal action has been commenced, the
separate civil action arising therefrom cannot be instituted until final judgment has been entered in
the criminal action.
If the criminal action is filed after the said civil action has already been instituted, the latter
shall be suspended in whatever state it may be found before judgment on the merits. The suspension
shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the
merits rendered in the civil action, the same may, upon motion of the offended party, be
consolidated with the criminal action in the court trying the criminal action. In case of consolidation,
the evidence already adduced in the civil action shall be deemed automatically reproduced in the
criminal action without prejudice to the right of the prosecution to cross-examine the witness
presented by the offended party in the criminal case and of the parties to present additional evidence.
The consolidated criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running period of prescription of the civil
action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.
The extinction of the penal action does not carry with it extinction of the civil action.
However, the civil action based on delict shall be deemed extinguished if there is a finding in a final
judgment in the criminal action that the act or omission from which the civil liability may arise did
not exist.
404
Sec. 3. When civil action may proceed independently. In the cases provided in Articles 32, 33, 34
and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the
offended party. It shall proceed independently of the criminal action and shall require only a
preponderance of evidence. In no case, however, may the offended party recover damages twice for
the same act or omission charged in the criminal action.
Sec. 4. Effect of death on civil actions. The death of the accused after arraignment and during the
pendency of the criminal action shall extinguish the civil liability arising from the delict. However, the
independent civil action instituted under section 3 of this Rule or which thereafter is instituted to
enforce liability arising from other sources of obligation may be continued against the estate or legal
representative of the accused after proper substitution or against said estate, as the case may be. The
heirs of the accused may be substituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be
substituted within a period of thirty (30) days from notice.
A final judgment entered in favor of the offended party shall be enforced in the manner
especially provided in these rules for prosecuting claims against the estate of the deceased.
If the accused dies before arraignment, the case shall be dismissed without prejudice to any
civil action the offended party may file against the estate of the deceased.
Sec. 5. Judgment in civil action not a bar. A final judgment rendered in a civil action absolving the
defendant from civil liability is not a bar to a criminal action against the defendant for the same act or
omission subject of the civil action.
Sec. 6. Suspension by reason of prejudicial question. A petition for suspension of the criminal
action based upon the pendency of a prejudicial question in a civil action may be filed in the office of
the prosecutor or the court conducting the preliminary investigation. When the criminal action has
been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any
time before the prosecution rests.
Sec. 7. Elements of prejudicial question. The elements of a prejudicial questions are: (a) the
previously instituted civil action involves an issue similar or intimately related to the issue raised in
the subsequent criminal action, and (b) the resolution of such issue determines whether or not the
criminal action may proceed.
Civil Code
Article 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and
liberties of another person shall be liable to the latter for damages:
405
In any of the cases referred to in this article, whether or not the defendant's act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and
distinct civil action for damages, and for other relief. Such civil action shall proceed independently of
any criminal prosecution (if the latter be instituted), and may be proved by a preponderance of
evidence.
The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his act or omission
constitutes a violation of the Penal Code or other penal statute.
Article 33. In cases of defamation, fraud, and physical injuries a civil action for damages, entirely
separate and distinct from the criminal action, may be brought by the injured party. Such civil action
shall proceed independently of the criminal prosecution, and shall require only a preponderance of
evidence.
Article 34. When a member of a city or municipal police force refuses or fails to render aid or
protection to any person in case of danger to life or property, such peace officer shall be primarily
liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil
action herein recognized shall be independent of any criminal proceedings, and a preponderance of
evidence shall suffice to support such action.
Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.
406
PART I
Rule 1.1. Subject matter and governing rules.-The Special Rules of Court on Alternative Dispute
Resolution (the "Special ADR Rules") shall apply to and govern the following cases:
Rule 1.2. Nature of the proceedings.-All proceedings under the Special ADR Rules are special
proceedings.
Rule 1.3. Summary proceedings in certain cases.-The proceedings in the following instances are summary
in nature and shall be governed by this provision:
(A) Service and filing of petition in summary proceedings.-The petitioner shall serve, either by
personal service or courier, a copy of the petition upon the respondent before the filing thereof.
Proof of service shall be attached to the petition filed in court.
For personal service, proof of service of the petition consists of the affidavit of the person
who effected service, stating the time, place and manner of the service on the respondent. For service
by courier, proof of service consists of the signed courier proof of delivery. If service is refused or
407
has failed, the affidavit or delivery receipt must state the circumstances of the attempted service and
refusal or failure thereof.
(C) Summary hearing. - In all cases, as far as practicable, the summary hearing shall be
conducted in one (1) day and only for purposes of clarifying facts.
Except in cases involving Referral to ADR or Confidentiality/Protective Orders made through
motions, it shall be the court that sets the petition for hearing within five (5) days from the lapse of
the period for filing the opposition or comment.
(D) Resolution. - The court shall resolve the matter within a period of thirty (30) days from
the day of the hearing.
Rule 1.4. Verification and submissions. -Any pleading, motion, opposition, comment, defense or claim
filed under the Special ADR Rules by the proper party shall be supported by verified statements that
the affiant has read the same and that the factual allegations therein are true and correct of his own
personal knowledge or based on authentic records and shall contain as annexes the supporting
documents.
The annexes to the pleading, motion, opposition, comment, defense or claim filed by the
proper party may include a legal brief, duly verified by the lawyer submitting it, stating the pertinent
facts, the applicable law and jurisprudence to justify the necessity for the court to rule upon the issue
raised.
Rule 1.5. Certification Against Forum Shopping. - A Certification Against Forum Shopping is one made
under oath made by the petitioner or movant: (a) that he has not theretofore commenced any action
or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and, to the
best of his knowledge, no such other action or claim is pending therein; (b) if there is such other
pending action or claim, a complete statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has been filed or is pending, he shall report
that fact within five (5) days therefrom to the court wherein his aforementioned petition or motion
has been filed.
A Certification Against Forum Shopping shall be appended to all initiatory pleadings except
a Motion to Refer the Dispute to Alternative Dispute Resolution.
Rule 1.6. Prohibited submissions. - The following pleadings, motions, or petitions shall not be allowed in
the cases governed by the Special ADR Rules and shall not be accepted for filing by the Clerk of
Court:
a. Motion to dismiss;
b. Motion for bill of particulars;
408
The court shall motu proprio order a pleading/motion that it has determined to be dilatory in
nature be expunged from the records.
Rule 1.7. Computation of time. - In computing any period of time prescribed or allowed by the Special
ADR Rules, or by order of the court, or by any applicable statute, the day of the act or event from
which the designated period of time begins to run is to be excluded and the date of performance
included. If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal
holiday in the place where the court sits, the time shall not run until the next working day.
Should an act be done which effectively interrupts the running of the period, the allowable
period after such interruption shall start to run on the day after notice of the cessation of the cause
thereof.
The day of the act that caused the interruption shall be excluded from the computation of
the period.
Rule 1.8. Service and filing of pleadings, motions and other papers in non-summary proceedings. - The initiatory
pleadings shall be filed directly with the court. The court will then cause the initiatory pleading to be
served upon the respondent by personal service or courier. Where an action is already pending,
pleadings, motions and other papers shall be filed and/or served by the concerned party by personal
service or courier. Where courier services are not available, resort to registered mail is allowed.
(A) Proof of filing. - The filing of a pleading shall be proved by its existence in the record of
the case. If it is not in the record, but is claimed to have been filed personally, the filing shall be
proved by the written or stamped acknowledgment of its filing by the clerk of court on a copy of the
same; if filed by courier, by the proof of delivery from the courier company.
(B) Proof of service. - Proof of personal service shall consist of a written admission by the party
served, or the official return of the server, or the affidavit of the party serving, containing a full
statement of the date, place and manner of service. If the service is by courier, proof thereof shall
consist of an affidavit of the proper person, stating facts showing that the document was deposited
with the courier company in a sealed envelope, plainly addressed to the party at his office, if known,
otherwise at his residence, with postage fully pre-paid, and with instructions to the courier to
immediately provide proof of delivery.
(C) Filing and service by electronic means and proof thereof. - Filing and service of pleadings by
electronic transmission may be allowed by agreement of the parties approved by the court. If the
filing or service of a pleading or motion was done by electronic transmission, proof of filing and
service shall be made in accordance with the Rules on Electronic Evidence.
Rule 1.9. No summons. - In cases covered by the Special ADR Rules, a court acquires authority to act
on the petition or motion upon proof of jurisdictional facts, i.e., that the respondent was furnished a
copy of the petition and the notice of hearing.
409
(A) Proof of service. - A proof of service of the petition and notice of hearing upon respondent
shall be made in writing by the server and shall set forth the manner, place and date of service.
(B) Burden of proof. - The burden of showing that a copy of the petition and the notice of
hearing were served on the respondent rests on the petitioner.
The technical rules on service of summons do not apply to the proceedings under the Special ADR
Rules. In instances where the respondent, whether a natural or a juridical person, was not personally
served with a copy of the petition and notice of hearing in the proceedings contemplated in the first
paragraph of Rule 1.3 (B), or the motion in proceedings contemplated in the second paragraph of
Rule 1.3 (B), the method of service resorted to must be such as to reasonably ensure receipt thereof
by the respondent to satisfy the requirement of due process.
Rule 1.10. Contents of petition/motion. - The initiatory pleading in the form of a verified petition or
motion, in the appropriate case where court proceedings have already commenced, shall include the
names of the parties, their addresses, the necessary allegations supporting the petition and the
relief(s) sought.
Rule 1.11. Definition. - The following terms shall have the following meanings:
a. "ADR Laws" refers to the whole body of ADR laws in the Philippines.
b. "Appointing Authority" shall mean the person or institution named in the arbitration
agreement as the appointing authority; or the regular arbitration institution under whose rule the
arbitration is agreed to be conducted. Where the parties have agreed to submit their dispute to
institutional arbitration rules, and unless they have agreed to a different procedure, they shall be
deemed to have agreed to procedure under such arbitration rules for the selection and appointment
of arbitrators. In ad hoc arbitration, the default appointment of arbitrators shall be made by the
National President of the Integrated Bar of the Philippines or his duly authorized representative.
d. "Foreign Arbitral Award" is one made in a country other than the Philippines.
e. "Legal Brief" is a written legal argument submitted to a court, outlining the facts derived
from the factual statements in the witnesss statements of fact and citing the legal authorities relied
upon by a party in a case submitted in connection with petitions, counter-petitions (i.e., petitions to
vacate or to set aside and/or to correct/modify in opposition to petitions to confirm or to recognize
and enforce, or petitions to confirm or to recognize and enforce in opposition to petitions to vacate
or set aside and/or correct/modify), motions, evidentiary issues and other matters that arise during
the course of a case. The legal brief shall state the applicable law and the relevant jurisprudence and
the legal arguments in support of a partys position in the case.
f. "Verification" shall mean a certification under oath by a party or a person who has
authority to act for a party that he has read the pleading/motion, and that he certifies to the truth of
the facts stated therein on the basis of his own personal knowledge or authentic documents in his
possession. When made by a lawyer, verification shall mean a statement under oath by a lawyer
signing a pleading/motion for delivery to the Court or to the parties that he personally prepared the
pleading/motion, that there is sufficient factual basis for the statements of fact stated therein, that
there is sufficient basis in the facts and the law to support the prayer for relief therein, and that the
pleading/motion is filed in good faith and is not interposed for delay.
410
Rule 1.12. Applicability of Part II on Specific Court Relief. - Part II of the Special ADR Rules on Specific
Court Relief, insofar as it refers to arbitration, shall also be applicable to other forms of ADR.
Rule 1.13. Spirit and intent of the Special ADR Rules. In situations where no specific rule is
provided under the Special ADR Rules, the court shall resolve such matter summarily and be guided
by the spirit and intent of the Special ADR Rules and the ADR Laws.
Rule 2.1. General policies. - It is the policy of the State to actively promote the use of various modes of
ADR and to respect party autonomy or the freedom of the parties to make their own arrangements
in the resolution of disputes with the greatest cooperation of and the least intervention from the
courts. To this end, the objectives of the Special ADR Rules are to encourage and promote the use
of ADR, particularly arbitration and mediation, as an important means to achieve speedy and
efficient resolution of disputes, impartial justice, curb a litigious culture and to de-clog court dockets.
The court shall exercise the power of judicial review as provided by these Special ADR
Rules. Courts shall intervene only in the cases allowed by law or these Special ADR Rules.
Rule 2.2. Policy on arbitration.- (A) Where the parties have agreed to submit their dispute to
arbitration, courts shall refer the parties to arbitration pursuant to Republic Act No. 9285 bearing in
mind that such arbitration agreement is the law between the parties and that they are expected to
abide by it in good faith. Further, the courts shall not refuse to refer parties to arbitration for reasons
including, but not limited to, the following:
(B) Where court intervention is allowed under ADR Laws or the Special ADR Rules, courts
shall not refuse to grant relief, as provided herein, for any of the following reasons:
a. Prior to the constitution of the arbitral tribunal, the court finds that the principal action is
the subject of an arbitration agreement; or
b. The principal action is already pending before an arbitral tribunal.
The Special ADR Rules recognize the principle of competence-competence, which means
that the arbitral tribunal may initially rule on its own jurisdiction, including any objections with
respect to the existence or validity of the arbitration agreement or any condition precedent to the
filing of a request for arbitration.
The Special ADR Rules recognize the principle of separability of the arbitration clause,
which means that said clause shall be treated as an agreement independent of the other terms of the
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contract of which it forms part. A decision that the contract is null and void shall not entail ipso jure
the invalidity of the arbitration clause.
Rule 2.3. Rules governing arbitral proceedings. - The parties are free to agree on the procedure to be
followed in the conduct of arbitral proceedings. Failing such agreement, the arbitral tribunal may
conduct arbitration in the manner it considers appropriate.
Rule 2.4. Policy implementing competence-competence principle. - The arbitral tribunal shall be accorded the
first opportunity or competence to rule on the issue of whether or not it has the competence or
jurisdiction to decide a dispute submitted to it for decision, including any objection with respect to
the existence or validity of the arbitration agreement. When a court is asked to rule upon issue/s
affecting the competence or jurisdiction of an arbitral tribunal in a dispute brought before it, either
before or after the arbitral tribunal is constituted, the court must exercise judicial restraint and defer
to the competence or jurisdiction of the arbitral tribunal by allowing the arbitral tribunal the first
opportunity to rule upon such issues. Where the court is asked to make a determination of whether
the arbitration agreement is null and void, inoperative or incapable of being performed, under this
policy of judicial restraint, the court must make no more than a prima facie determination of that
issue. Unless the court, pursuant to such prima facie determination, concludes that the arbitration
agreement is null and void, inoperative or incapable of being performed, the court must suspend the
action before it and refer the parties to arbitration pursuant to the arbitration agreement.
Rule 2.5. Policy on mediation. - The Special ADR Rules do not apply to Court-Annexed Mediation,
which shall be governed by issuances of the Supreme Court. Where the parties have agreed to submit
their dispute to mediation, a court before which that dispute was brought shall suspend the
proceedings and direct the parties to submit their dispute to private mediation. If the parties
subsequently agree, however, they may opt to have their dispute settled through Court-Annexed
Mediation.
Rule 2.7. Conversion of a settlement agreement to an arbitral award. - Where the parties to mediation have
agreed in the written settlement agreement that the mediator shall become the sole arbitrator for the
dispute or that the settlement agreement shall become an arbitral award, the sole arbitrator shall issue
the settlement agreement as an arbitral award, which shall be subject to enforcement under the law.
PART II
Rule 3.1. When judicial relief is available. - The judicial relief provided in Rule 3, whether resorted to
before or after commencement of arbitration, shall apply only when the place of arbitration is in the
Philippines.
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Rule 3.2. Who may file petition. - Any party to an arbitration agreement may petition the appropriate
court to determine any question concerning the existence, validity and enforceability of such
arbitration agreement serving a copy thereof on the respondent in accordance with Rule 1.4 (A).
Rule 3.3. When the petition may be filed. - The petition for judicial determination of the existence,
validity and/or enforceability of an arbitration agreement may be filed at any time prior to the
commencement of arbitration. Despite the pendency of the petition provided herein, arbitral
proceedings may nevertheless be commenced and continue to the rendition of an award, while the
issue is pending before the court.
Rule 3.4. Venue. - A petition questioning the existence, validity and enforceability of an arbitration
agreement may be filed before the Regional Trial Court of the place where any of the petitioners or
respondents has his principal place of business or residence.
Rule 3.5. Grounds. - A petition may be granted only if it is shown that the arbitration agreement is,
under the applicable law, invalid, void, unenforceable or inexistent.
Rule 3.6. Contents of petition. - The verified petition shall state the following:
a. The facts showing that the persons named as petitioner or respondent have legal capacity
to sue or be sued;
b. The nature and substance of the dispute between the parties;
c. The grounds and the circumstances relied upon by the petitioner to establish his position;
and
d. The relief/s sought.
Apart from other submissions, the petitioner must attach to the petition an authentic copy
of the arbitration agreement.
Rule 3.8. Court action. - In resolving the petition, the court must exercise judicial restraint in
accordance with the policy set forth in Rule 2.4, deferring to the competence or jurisdiction of the
arbitral tribunal to rule on its competence or jurisdiction.
Rule 3.9. No forum shopping. - A petition for judicial relief under this Rule may not be commenced
when the existence, validity or enforceability of an arbitration agreement has been raised as one of
the issues in a prior action before the same or another court.
Rule 3.10. Application for interim relief. - If the petitioner also applies for an interim measure of
protection, he must also comply with the requirements of the Special ADR Rules for the application
for an interim measure of protection.
Rule 3.11. Relief against court action. - Where there is a prima facie determination upholding the
arbitration agreement.-A prima facie determination by the court upholding the existence, validity or
enforceability of an arbitration agreement shall not be subject to a motion for reconsideration, appeal
or certiorari. Such prima facie determination will not, however, prejudice the right of any party to raise
the issue of the existence, validity and enforceability of the arbitration agreement before the arbitral
tribunal or the court in an action to vacate or set aside the arbitral award. In the latter case, the
courts review of the arbitral tribunals ruling upholding the existence, validity or enforceability of the
arbitration agreement shall no longer be limited to a mere prima facie determination of such issue or
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issues as prescribed in this Rule, but shall be a full review of such issue or issues with due regard,
however, to the standard for review for arbitral awards prescribed in these Special ADR Rules.
B. Judicial Relief after Arbitration Commences
Rule 3.12. Who may file petition. - Any party to arbitration may petition the appropriate court for
judicial relief from the ruling of the arbitral tribunal on a preliminary question upholding or declining
its jurisdiction. Should the ruling of the arbitral tribunal declining its jurisdiction be reversed by the
court, the parties shall be free to replace the arbitrators or any one of them in accordance with the
rules that were applicable for the appointment of arbitrator sought to be replaced.
Rule 3.13. When petition may be filed. - The petition may be filed within thirty (30) days after having
received notice of that ruling by the arbitral tribunal.
Rule 3.14. Venue. - The petition may be filed before the Regional Trial Court of the place where
arbitration is taking place, or where any of the petitioners or respondents has his principal place of
business or residence.
Rule 3.15. Grounds. - The petition may be granted when the court finds that the arbitration
agreement is invalid, inexistent or unenforceable as a result of which the arbitral tribunal has no
jurisdiction to resolve the dispute.
Rule 3.16. Contents of petition. - The petition shall state the following:
a. The facts showing that the person named as petitioner or respondent has legal capacity to
sue or be sued;
b. The nature and substance of the dispute between the parties;
c. The grounds and the circumstances relied upon by the petitioner; and
d. The relief/s sought.
In addition to the submissions, the petitioner shall attach to the petition a copy of the
request for arbitration and the ruling of the arbitral tribunal. The arbitrators shall be impleaded as
nominal parties to the case and shall be notified of the progress of the case.
Rule 3.17. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days
from service of the petition.
Rule 3.18. Court action. - (A) Period for resolving the petition.- The court shall render judgment on the
basis of the pleadings filed and the evidence, if any, submitted by the parties, within thirty (30) days
from the time the petition is submitted for resolution.
(B) No injunction of arbitration proceedings. - The court shall not enjoin the arbitration
proceedings during the pendency of the petition.Judicial recourse to the court shall not prevent the
arbitral tribunal from continuing the proceedings and rendering its award.
(C) When dismissal of petition is appropriate. - The court shall dismiss the petition if it fails to
comply with Rule 3.16 above; or if upon consideration of the grounds alleged and the legal briefs
submitted by the parties, the petition does not appear to be prima facie meritorious.
Rule 3.19. Relief against court action. - The aggrieved party may file a motion for reconsideration of the
order of the court. The decision of the court shall, however, not be subject to appeal. The ruling of
the court affirming the arbitral tribunals jurisdiction shall not be subject to a petition for certiorari.
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The ruling of the court that the arbitral tribunal has no jurisdiction may be the subject of a petition
for certiorari.
Rule 3.20. Where no petition is allowed. - Where the arbitral tribunal defers its ruling on preliminary
question regarding its jurisdiction until its final award, the aggrieved party cannot seek judicial relief
to question the deferral and must await the final arbitral award before seeking appropriate judicial
recourse. A ruling by the arbitral tribunal deferring resolution on the issue of its jurisdiction until
final award, shall not be subject to a motion for reconsideration, appeal or a petition for certiorari.
Rule 3.21. Rendition of arbitral award before court decision on petition from arbitral tribunals preliminary ruling on
jurisdiction. - If the arbitral tribunal renders a final arbitral award and the Court has not rendered a
decision on the petition from the arbitral tribunals preliminary ruling affirming its jurisdiction, that
petition shall become ipso facto moot and academic and shall be dismissed by the Regional Trial
Court. The dismissal shall be without prejudice to the right of the aggrieved party to raise the same
issue in a timely petition to vacate or set aside the award.
Rule 3.22. Arbitral tribunal a nominal party. - The arbitral tribunal is only a nominal party. The court
shall not require the arbitral tribunal to submit any pleadings or written submissions but may
consider the same should the latter participate in the proceedings, but only as nominal parties
thereto.
Rule 4.1. Who makes the request. - A party to a pending action filed in violation of the arbitration
agreement, whether contained in an arbitration clause or in a submission agreement, may request the
court to refer the parties to arbitration in accordance with such agreement.
Rule 4.2. When to make request. - (A) Where the arbitration agreement exists before the action is filed. - The
request for referral shall be made not later than the pre-trial conference. After the pre-trial
conference, the court will only act upon the request for referral if it is made with the agreement of all
parties to the case.
(B) Submission agreement. - If there is no existing arbitration agreement at the time the case is filed but
the parties subsequently enter into an arbitration agreement, they may request the court to refer their
dispute to arbitration at any time during the proceedings.
Rule 4.3. Contents of request. - The request for referral shall be in the form of a motion, which shall
state that the dispute is covered by an arbitration agreement.Apart from other submissions, the
movant shall attach to his motion an authentic copy of the arbitration agreement. The request shall
contain a notice of hearing addressed to all parties specifying the date and time when it would be
heard. The party making the request shall serve it upon the respondent to give him the opportunity
to file a comment or opposition as provided in the immediately succeeding Rule before the hearing.
Rule 4.4. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from
service of the petition. The comment/opposition should show that: (a) there is no agreement to refer
the dispute to arbitration; and/or (b) the agreement is null and void; and/or (c) the subject-matter of
the dispute is not capable of settlement or resolution by arbitration in accordance with Section 6 of
the ADR Act.
Rule 4.5. Court action. - After hearing, the court shall stay the action and, considering the statement of
policy embodied in Rule 2.4, above, refer the parties to arbitration if it finds prima facie, based on the
pleadings and supporting documents submitted by the parties, that there is an arbitration agreement
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and that the subject-matter of the dispute is capable of settlement or resolution by arbitration in
accordance with Section 6 of the ADR Act. Otherwise, the court shall continue with the judicial
proceedings.
Rule 4.6. No reconsideration, appeal or certiorari. - An order referring the dispute to arbitration shall be
immediately executory and shall not be subject to a motion for reconsideration, appeal or petition for
certiorari. An order denying the request to refer the dispute to arbitration shall not be subject to an
appeal, but may be the subject of a motion for reconsideration and/or a petition for certiorari.
Rule 4.7. Multiple actions and parties. - The court shall not decline to refer some or all of the parties to
arbitration for any of the following reasons:
a. Not all of the disputes subject of the civil action may be referred to arbitration;
b. Not all of the parties to the civil action are bound by the arbitration agreement and
referral to arbitration would result in multiplicity of suits;
c. The issues raised in the civil action could be speedily and efficiently resolved in its entirety
by the court rather than in arbitration;
d. Referral to arbitration does not appear to be the most prudent action; or
e. The stay of the action would prejudice the rights of the parties to the civil action who are
not bound by the arbitration agreement.
The court may, however, issue an order directing the inclusion in arbitration of those parties
who are not bound by the arbitration agreement but who agree to such inclusion provided those
originally bound by it do not object to their inclusion.
Rule 4.8. Arbitration to proceed.- Despite the pendency of the action referred to in Rule 4.1, above,
arbitral proceedings may nevertheless be commenced or continued, and an award may be made,
while the action is pending before the court.
Rule 5.1. Who may ask for interim measures of protection. - A party to an arbitration agreement may
petition the court for interim measures of protection.
Rule 5.2. When to petition. - A petition for an interim measure of protection may be made (a) before
arbitration is commenced, (b) after arbitration is commenced, but before the constitution of the
arbitral tribunal, or (c) after the constitution of the arbitral tribunal and at any time during arbitral
proceedings but, at this stage, only to the extent that the arbitral tribunal has no power to act or is
unable to act effectively.
Rule 5.3. Venue. - A petition for an interim measure of protection may be filed with the Regional
Trial Court, which has jurisdiction over any of the following places:
a. Where the principal place of business of any of the parties to arbitration is located;
b. Where any of the parties who are individuals resides;
c. Where any of the acts sought to be enjoined are being performed, threatened to be
performed or not being performed; or
d. Where the real property subject of arbitration, or a portion thereof is situated.
Rule 5.4. Grounds. - The following grounds, while not limiting the reasons for the court to grant an
interim measure of protection, indicate the nature of the reasons that the court shall consider in
granting the relief:
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Rule 5.5. Contents of the petition. - The verified petition must state the following:
Apart from other submissions, the petitioner must attach to his petition an authentic copy of
the arbitration agreement.
Rule 5.6. Type of interim measure of protection that a court may grant.- The following, among others, are the
interim measures of protection that a court may grant:
Rule 5.7. Dispensing with prior notice in certain cases. - Prior notice to the other party may be dispensed
with when the petitioner alleges in the petition that there is an urgent need to either (a) preserve
property, (b) prevent the respondent from disposing of, or concealing, the property, or (c) prevent
the relief prayed for from becoming illusory because of prior notice, and the court finds that the
reason/s given by the petitioner are meritorious.
Rule 5.8. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from
service of the petition. The opposition or comment should state the reasons why the interim measure
of protection should not be granted.
Rule 5.9. Court action. - After hearing the petition, the court shall balance the relative interests of the
parties and inconveniences that may be caused, and on that basis resolve the matter within thirty (30)
days from (a) submission of the opposition, or (b) upon lapse of the period to file the same, or (c)
from termination of the hearing that the court may set only if there is a need for clarification or
further argument.
If the other parties fail to file their opposition on or before the day of the hearing, the court
shall motu propriorender judgment only on the basis of the allegations in the petition that are
substantiated by supporting documents and limited to what is prayed for therein.
In cases where, based solely on the petition, the court finds that there is an urgent need to either (a)
preserve property, (b) prevent the respondent from disposing of, or concealing, the property, or (c)
prevent the relief prayed for from becoming illusory because of prior notice, it shall issue an
immediately executory temporary order of protection and require the petitioner, within five (5) days
from receipt of that order, to post a bond to answer for any damage that respondent may suffer as a
result of its order. The ex-parte temporary order of protection shall be valid only for a period of
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twenty (20) days from the service on the party required to comply with the order. Within that period,
the court shall:
a. Furnish the respondent a copy of the petition and a notice requiring him to comment
thereon on or before the day the petition will be heard; and
b. Notify the parties that the petition shall be heard on a day specified in the notice, which
must not be beyond the twenty (20) day period of the effectivity of the ex-parte order.
The respondent has the option of having the temporary order of protection lifted by posting
an appropriate counter-bond as determined by the court.
If the respondent requests the court for an extension of the period to file his opposition or
comment or to reset the hearing to a later date, and such request is granted, the court shall extend the
period of validity of the ex-partetemporary order of protection for no more than twenty days from
expiration of the original period.
After notice and hearing, the court may either grant or deny the petition for an interim
measure of protection. The order granting or denying any application for interim measure of
protection in aid of arbitration must indicate that it is issued without prejudice to subsequent grant,
modification, amendment, revision or revocation by an arbitral tribunal.
Rule 5.10. Relief against court action. - If respondent was given an opportunity to be heard on a
petition for an interim measure of protection, any order by the court shall be immediately executory,
but may be the subject of a motion for reconsideration and/or appeal or, if warranted, a petition for
certiorari.
Rule 5.11. Duty of the court to refer back. - The court shall not deny an application for assistance
in implementing or enforcing an interim measure of protection ordered by an arbitral tribunal on any
or all of the following grounds:
If it finds that there is sufficient merit in the opposition to the application based on letter (b)
above, the court shall refer the matter back to the arbitral tribunal for appropriate determination.
Rule 5.12. Security. - The order granting an interim measure of protection may be conditioned upon
the provision of security, performance of an act, or omission thereof, specified in the order.
The Court may not change or increase or decrease the security ordered by the arbitral tribunal.
Rule 5.13. Modification, amendment, revision or revocation of courts previously issued interim measure of protection.
- Any court order granting or denying interim measure/s of protection is issued without prejudice to
subsequent grant, modification, amendment, revision or revocation by the arbitral tribunal as may be
warranted. An interim measure of protection issued by the arbitral tribunal shall, upon its issuance be
deemed to have ipso jure modified, amended, revised or revoked an interim measure of protection
previously issued by the court to the extent that it is inconsistent with the subsequent interim
measure of protection issued by the arbitral tribunal.
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Rule 5.14. Conflict or inconsistency between interim measure of protection issued by the court and by the arbitral
tribunal. - Any question involving a conflict or inconsistency between an interim measure of
protection issued by the court and by the arbitral tribunal shall be immediately referred by the court
to the arbitral tribunal which shall have the authority to decide such question.
Rule 5.15. Court to defer action on petition for an interim measure of protection when informed of constitution of the
arbitral tribunal. - The court shall defer action on any pending petition for an interim measure of
protection filed by a party to an arbitration agreement arising from or in connection with a dispute
thereunder upon being informed that an arbitral tribunal has been constituted pursuant to such
agreement. The court may act upon such petition only if it is established by the petitioner that the
arbitral tribunal has no power to act on any such interim measure of protection or is unable to act
thereon effectively.
Rule 5.16. Court assistance should arbitral tribunal be unable to effectively enforce interim measure of protection. -
The court shall assist in the enforcement of an interim measure of protection issued by the arbitral
tribunal which it is unable to effectively enforce.
Rule 6.1. When the court may act as Appointing Authority. - The court shall act as Appointing Authority
only in the following instances:
b. In all instances where arbitration is ad hoc and the parties failed to provide a method for
appointing or replacing an arbitrator, or substitute arbitrator, or the method agreed upon is
ineffective, and the National President of the Integrated Bar of the Philippines (IBP) or his duly
authorized representative fails or refuses to act within such period as may be allowed under the
pertinent rules of the IBP or within such period as may be agreed upon by the parties, or in the
absence thereof, within thirty (30) days from receipt of such request for appointment;
c. Where the parties agreed that their dispute shall be resolved by three arbitrators but no
method of appointing those arbitrators has been agreed upon, each party shall appoint one arbitrator
and the two arbitrators thus appointed shall appoint a third arbitrator. If a party fails to appoint his
arbitrator within thirty (30) days of receipt of a request to do so from the other party, or if the two
arbitrators fail to agree on the third arbitrator within a reasonable time from their appointment, the
appointment shall be made by the Appointing Authority. If the latter fails or refuses to act or appoint
an arbitrator within a reasonable time from receipt of the request to do so, any party or the appointed
arbitrator/s may request the court to appoint an arbitrator or the third arbitrator as the case may be.
Rule 6.2. Who may request for appointment. - Any party to an arbitration may request the court to act as
an Appointing Authority in the instances specified in Rule 6.1 above.
Rule 6.3. Venue. - The petition for appointment of arbitrator may be filed, at the option of the
petitioner, in the Regional Trial Court (a) where the principal place of business of any of the parties is
located, (b) if any of the parties are individuals, where those individuals reside, or (c) in the National
Capital Region.
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Rule 6.4. Contents of the petition. -The petition shall state the following:
Apart from other submissions, the petitioner must attach to the petition (a) an authentic
copy of the arbitration agreement, and (b) proof that the Appointing Authority has been notified of
the filing of the petition for appointment with the court.
Rule 6.5. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from
service of the petition.
Rule 6.6. Submission of list of arbitrators. - The court may, at its option, also require each party to
submit a list of not less than three (3) proposed arbitrators together with their curriculum vitae.
Rule 6.7. Court action. - After hearing, if the court finds merit in the petition, it shall appoint an
arbitrator; otherwise, it shall dismiss the petition. In making the appointment, the court shall have
regard to such considerations as are likely to secure the appointment of an independent and impartial
arbitrator.At any time after the petition is filed and before the court makes an appointment, it shall
also dismiss the petition upon being informed that the Appointing Authority has already made the
appointment.
Rule 6.8. Forum shopping prohibited. - When there is a pending petition in another court to declare the
arbitration agreement inexistent, invalid, unenforceable, on account of which the respondent failed or
refused to participate in the selection and appointment of a sole arbitrator or to appoint a party-
nominated arbitrator, the petition filed under this rule shall be dismissed.
Rule 6.9. Relief against court action. - If the court appoints an arbitrator, the order appointing an
arbitrator shall be immediately executory and shall not be the subject of a motion for reconsideration,
appeal or certiorari. An order of the court denying the petition for appointment of an arbitrator may,
however, be the subject of a motion for reconsideration, appeal or certiorari.
Rule 7.1. Who may challenge. - Any of the parties to an arbitration may challenge an arbitrator.
Rule 7.2. When challenge may be raised in court. - When an arbitrator is challenged before the arbitral
tribunal under the procedure agreed upon by the parties or under the procedure provided for in
Article 13 (2) of the Model Law and the challenge is not successful, the aggrieved party may request
the Appointing Authority to rule on the challenge, and it is only when such Appointing Authority
fails or refuses to act on the challenge within such period as may be allowed under the applicable rule
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or in the absence thereof, within thirty (30) days from receipt of the request, that the aggrieved party
may renew the challenge in court.
Rule 7.3. Venue. - The challenge shall be filed with the Regional Trial Court (a) where the principal
place of business of any of the parties is located, (b) if any of the parties are individuals, where those
individuals reside, or (c) in the National Capital Region.
Rule 7.4. Grounds. - An arbitrator may be challenged on any of the grounds for challenge provided
for in Republic Act No. 9285 and its implementing rules, Republic Act No. 876 or the Model Law.
The nationality or professional qualification of an arbitrator is not a ground to challenge an arbitrator
unless the parties have specified in their arbitration agreement a nationality and/or professional
qualification for appointment as arbitrator.
Rule 7.5. Contents of the petition. - The petition shall state the following:
The court shall dismiss the petition motu proprio unless it is clearly alleged therein that the
Appointing Authority charged with deciding the challenge, after the resolution of the arbitral tribunal
rejecting the challenge is raised or contested before such Appointing Authority, failed or refused to
act on the challenge within thirty (30) days from receipt of the request or within such longer period
as may apply or as may have been agreed upon by the parties.
Rule 7.6. Comment/Opposition. - The challenged arbitrator or other parties may file a comment or
opposition within fifteen (15) days from service of the petition.
Rule 7.7. Court action. - After hearing, the court shall remove the challenged arbitrator if it finds merit
in the petition; otherwise, it shall dismiss the petition.
The court shall allow the challenged arbitrator who subsequently agrees to accept the
challenge to withdraw as arbitrator.
The court shall accept the challenge and remove the arbitrator in the following cases:
a. The party or parties who named and appointed the challenged arbitrator agree to the
challenge and withdraw the appointment.
b. The other arbitrators in the arbitral tribunal agree to the removal of the challenged
arbitrator; and
c. The challenged arbitrator fails or refuses to submit his comment on the petition or the
brief of legal arguments as directed by the court, or in such comment or legal brief, he fails to object
to his removal following the challenge.
The court shall decide the challenge on the basis of evidence submitted by the parties.
The court will decide the challenge on the basis of the evidence submitted by the parties in the
following instances:
a. The other arbitrators in the arbitral tribunal agree to the removal of the challenged
arbitrator; and
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b. If the challenged arbitrator fails or refuses to submit his comment on the petition or the
brief of legal arguments as directed by the court, or in such comment or brief of legal arguments, he
fails to object to his removal following the challenge.
Rule 7.8. No motion for reconsideration, appeal or certiorari. - Any order of the court resolving the petition
shall be immediately executory and shall not be the subject of a motion for reconsideration, appeal,
or certiorari.
Rule 7.9. Reimbursement of expenses and reasonable compensation to challenged arbitrator. - Unless the bad faith
of the challenged arbitrator is established with reasonable certainty by concealing or failing to
disclose a ground for his disqualification, the challenged arbitrator shall be entitled to reimbursement
of all reasonable expenses he may have incurred in attending to the arbitration and to a reasonable
compensation for his work on the arbitration. Such expenses include, but shall not be limited to,
transportation and hotel expenses, if any. A reasonable compensation shall be paid to the challenged
arbitrator on the basis of the length of time he has devoted to the arbitration and taking into
consideration his stature and reputation as an arbitrator. The request for reimbursement of expenses
and for payment of a reasonable compensation shall be filed in the same case and in the court where
the petition to replace the challenged arbitrator was filed. The court, in determining the amount of
the award to the challenged arbitrator, shall receive evidence of expenses to be reimbursed, which
may consist of air tickets, hotel bills and expenses, and inland transportation. The court shall direct
the challenging party to pay the amount of the award to the court for the account of the challenged
arbitrator, in default of which the court may issue a writ of execution to enforce the award.
Rule 8.1. Who may request termination and on what grounds.- Any of the parties to an arbitration may
request for the termination of the mandate of an arbitrator where an arbitrator becomes de jure or de
facto unable to perform his function or for other reasons fails to act without undue delay and that
arbitrator, upon request of any party, fails or refuses to withdraw from his office.
Rule 8.2. When to request. - If an arbitrator refuses to withdraw from his office, and subsequently, the
Appointing Authority fails or refuses to decide on the termination of the mandate of that arbitrator
within such period as may be allowed under the applicable rule or, in the absence thereof, within
thirty (30) days from the time the request is brought before him, any party may file with the court a
petition to terminate the mandate of that arbitrator.
Rule 8.3. Venue. - A petition to terminate the mandate of an arbitrator may, at that petitioners
option, be filed with the Regional Trial Court (a) where the principal place of business of any of the
parties is located, (b) where any of the parties who are individuals resides, or (c) in the National
Capital Region.
Rule 8.4. Contents of the petition. - The petition shall state the following:
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The petitioner shall further allege that one or all of the parties had requested the arbitrator to
withdraw but he failed or refused to do so.
Rule 8.5. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from
service of the petition.
Rule 8.6. Court action. - After hearing, if the court finds merit in the petition, it shall terminate the
mandate of the arbitrator who refuses to withdraw from his office; otherwise, it shall dismiss the
petition.
Rule 8.7. No motion for reconsideration or appeal. - Any order of the court resolving the petition shall be
immediately executory and shall not be subject of a motion for reconsideration, appeal or petition for
certiorari.
Rule 8.8. Appointment of substitute arbitrator. - Where the mandate of an arbitrator is terminated, or he
withdraws from office for any other reason, or because of his mandate is revoked by agreement of
the parties or is terminated for any other reason, a substitute arbitrator shall be appointed according
to the rules that were applicable to the appointment of the arbitrator being replaced.
Rule 9.1. Who may request assistance. - Any party to an arbitration, whether domestic or foreign, may
request the court to provide assistance in taking evidence.
Rule 9.2. When assistance may be sought. - Assistance may be sought at any time during the course of the
arbitral proceedings when the need arises.
Rule 9.3. Venue. - A petition for assistance in taking evidence may, at the option of the petitioner, be
filed with Regional Trial Court where (a) arbitration proceedings are taking place, (b) the witnesses
reside or may be found, or (c) where the evidence may be found.
Rule 9.4. Ground. - The court may grant or execute the request for assistance in taking evidence
within its competence and according to the rules of evidence.
Rule 9.5. Type of assistance. - A party requiring assistance in the taking of evidence may petition the
court to direct any person, including a representative of a corporation, association, partnership or
other entity (other than a party to the ADR proceedings or its officers) found in the Philippines, for
any of the following:
Rule 9.6. Contents of the petition. - The petition must state the following:
a. The fact that there is an ongoing arbitration proceeding even if such proceeding could not
continue due to some legal impediments;
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b. The arbitral tribunal ordered the taking of evidence or the party desires to present
evidence to the arbitral tribunal;
c. Materiality or relevance of the evidence to be taken; and
d. The names and addresses of the intended witness/es, place where the evidence may be
found, the place where the premises to be inspected are located or the place where the acts required
are to be done.
Rule 9.7. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days from
service of the petition.
Rule 9.8. Court action. - If the evidence sought is not privileged, and is material and relevant, the court
shall grant the assistance in taking evidence requested and shall order petitioner to pay costs
attendant to such assistance.
Rule 9.9. Relief against court action. - The order granting assistance in taking evidence shall be
immediately executory and not subject to reconsideration or appeal. If the court declines to grant
assistance in taking evidence, the petitioner may file a motion for reconsideration or appeal.
Rule 9.10. Perpetuation of testimony before the arbitral tribunal is constituted. - At anytime before arbitration
is commenced or before the arbitral tribunal is constituted, any person who desires to perpetuate his
testimony or that of another person may do so in accordance with Rule 24 of the Rules of Court.
Rule 9.11. Consequence of disobedience. - The court may impose the appropriate sanction on any person
who disobeys its order to testify when required or perform any act required of him.
Rule 10.1. Who may request confidentiality. - A party, counsel or witness who disclosed or who was
compelled to disclose information relative to the subject of ADR under circumstances that would
create a reasonable expectation, on behalf of the source, that the information shall be kept
confidential has the right to prevent such information from being further disclosed without the
express written consent of the source or the party who made the disclosure.
Rule 10.2. When request made. - A party may request a protective order at anytime there is a need to
enforce the confidentiality of the information obtained, or to be obtained, in ADR proceedings.
Rule 10.3. Venue. - A petition for a protective order may be filed with the Regional Trial Court where
that order would be implemented.
If there is a pending court proceeding in which the information obtained in an ADR proceeding is
required to be divulged or is being divulged, the party seeking to enforce the confidentiality of the
information may file a motion with the court where the proceedings are pending to enjoin the
confidential information from being divulged or to suppress confidential information.
Rule 10.4. Grounds. - A protective order may be granted only if it is shown that the applicant would
be materially prejudiced by an unauthorized disclosure of the information obtained, or to be
obtained, during an ADR proceeding.
Rule 10.5. Contents of the motion or petition. - The petition or motion must state the following:
a. That the information sought to be protected was obtained, or would be obtained, during
an ADR proceeding;
b. The applicant would be materially prejudiced by the disclosure of that information;
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c. The person or persons who are being asked to divulge the confidential information
participated in an ADR proceedings; and
d. The time, date and place when the ADR proceedings took place.
Apart from the other submissions, the movant must set the motion for hearing and contain
a notice of hearing in accordance with Rule 15 of the Rules of Court.
Rule 10.6. Notice. - Notice of a request for a protective order made through a motion shall be made
to the opposing parties in accordance with Rule 15 of the Rules of Court.
Rule 10.7. Comment/Opposition. - The comment/opposition must be filed within fifteen (15) days
from service of the petition. The opposition or comment may be accompanied by written proof that
(a) the information is not confidential, (b) the information was not obtained during an ADR
proceeding, (c) there was a waiver of confidentiality, or (d) the petitioner/movant is precluded from
asserting confidentiality.
Rule 10.8. Court action. - If the court finds the petition or motion meritorious, it shall issue an order
enjoining a person or persons from divulging confidential information. In resolving the petition or
motion, the courts shall be guided by the following principles applicable to all ADR proceedings:
Confidential information shall not be subject to discovery and shall be inadmissible in any adversarial
proceeding, whether judicial or quasi judicial. However, evidence or information that is otherwise
admissible or subject to discovery does not become inadmissible or protected from discovery solely
by reason of its use therein.
For mediation proceedings, the court shall be further guided by the following principles:
Rule 10.9. Relief against court action. - The order enjoining a person or persons from divulging
confidential information shall be immediately executory and may not be enjoined while the order is
being questioned with the appellate courts. If the court declines to enjoin a person or persons from
divulging confidential information, the petitioner may file a motion for reconsideration or appeal.
Rule 10.10. Consequence of disobedience. - Any person who disobeys the order of the court to cease from
divulging confidential information shall be imposed the proper sanction by the court.
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Rule 11.1. Who may request confirmation, correction or vacation. - Any party to a domestic arbitration may
petition the court to confirm, correct or vacate a domestic arbitral award.
(A) Confirmation. - At any time after the lapse of thirty (30) days from receipt by the petitioner
of the arbitral award, he may petition the court to confirm that award.
(B) Correction/Modification. - Not later than thirty (30) days from receipt of the arbitral award,
a party may petition the court to correct/modify that award.
(C) Vacation. - Not later than thirty (30) days from receipt of the arbitral award, a party may
petition the court to vacate that award.
(D) A petition to vacate the arbitral award may be filed, in opposition to a petition to
confirm the arbitral award, not later than thirty (30) days from receipt of the award by the petitioner.
A petition to vacate the arbitral award filed beyond the reglementary period shall be dismissed.
(E) A petition to confirm the arbitral award may be filed, in opposition to a petition to
vacate the arbitral award, at any time after the petition to vacate such arbitral award is filed. The
dismissal of the petition to vacate the arbitral award for having been filed beyond the reglementary
period shall not result in the dismissal of the petition for the confirmation of such arbitral award.
(F) The filing of a petition to confirm an arbitral award shall not authorize the filing of a
belated petition to vacate or set aside such award in opposition thereto.
(G) A petition to correct an arbitral award may be included as part of a petition to confirm
the arbitral award or as a petition to confirm that award.
Rule 11.3. Venue. - The petition for confirmation, correction/modification or vacation of a domestic
arbitral award may be filed with Regional Trial Court having jurisdiction over the place in which one
of the parties is doing business, where any of the parties reside or where arbitration proceedings were
conducted.
Rule 11.4. Grounds. - (A) To vacate an arbitral award. - The arbitral award may be vacated on the
following grounds:
a. The arbitral award was procured through corruption, fraud or other undue means;
b. There was evident partiality or corruption in the arbitral tribunal or any of its members;
c. The arbitral tribunal was guilty of misconduct or any form of misbehavior that has
materially prejudiced the rights of any party such as refusing to postpone a hearing upon sufficient
cause shown or to hear evidence pertinent and material to the controversy;
d. One or more of the arbitrators was disqualified to act as such under the law and willfully
refrained from disclosing such disqualification; or
e. The arbitral tribunal exceeded its powers, or so imperfectly executed them, such that a
complete, final and definite award upon the subject matter submitted to them was not made.
The award may also be vacated on any or all of the following grounds:
a. The arbitration agreement did not exist, or is invalid for any ground for the revocation of
a contract or is otherwise unenforceable; or
b. A party to arbitration is a minor or a person judicially declared to be incompetent.
The petition to vacate an arbitral award on the ground that the party to arbitration is a minor
or a person judicially declared to be incompetent shall be filed only on behalf of the minor or
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incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a
submission or agreement with such minor or incompetent, or (b) the submission to arbitration was
made by a guardian or guardian ad litem who was not authorized to do so by a competent court.
In deciding the petition to vacate the arbitral award, the court shall disregard any other
ground than those enumerated above.
(B) To correct/modify an arbitral award. - The Court may correct/modify or order the arbitral
tribunal to correct/modify the arbitral award in the following cases:
Rule 11.5. Form of petition. - An application to vacate an arbitral award shall be in the form of a
petition to vacate or as a petition to vacate in opposition to a petition to confirm the same award.
An application to correct/modify an arbitral award may be included in a petition to confirm an
arbitral award or in a petition to vacate in opposition to confirm the same award.
When a petition to confirm an arbitral award is pending before a court, the party seeking to
vacate or correct/modify said award may only apply for those reliefs through a petition to vacate or
correct/modify the award in opposition to the petition to confirm the award provided that such
petition to vacate or correct/modify is filed within thirty (30) days from his receipt of the award. A
petition to vacate or correct/modify an arbitral award filed in another court or in a separate case
before the same court shall be dismissed, upon appropriate motion, as a violation of the rule against
forum-shopping.
When a petition to vacate or correct/modify an arbitral award is pending before a court, the
party seeking to confirm said award may only apply for that relief through a petition to confirm the
same award in opposition to the petition to vacate or correct/modify the award. A petition to
confirm or correct/modify an arbitral award filed as separate proceeding in another court or in a
different case before the same court shall be dismissed, upon appropriate motion, as a violation of
the rule against forum shopping.
Where the petition to confirm the award and petition to vacate or correct/modify were
simultaneously filed by the parties in the same court or in different courts in the Philippines, upon
motion of either party, the court may order the consolidation of the two cases before either court.
In all instances, the petition must be verified by a person who has knowledge of the
jurisdictional facts.
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Rule 11.6. Contents of petition. - The petition must state the following:
Apart from other submissions, the petitioner must attach to the petition the following:
Rule 11.7. Notice. - Upon finding that the petition filed under this Rule is sufficient both in form and
in substance, the Court shall cause notice and a copy of the petition to be delivered to the respondent
allowing him to file a comment or opposition thereto within fifteen (15) days from receipt of the
petition. In lieu of an opposition, the respondent may file a petition in opposition to the petition.
The petitioner may within fifteen (15) days from receipt of the petition in opposition thereto file a
reply.
Rule 11.8. Hearing. - If the Court finds from the petition or petition in opposition thereto that there
are issues of fact, it shall require the parties, within a period of not more than fifteen (15) days from
receipt of the order, to simultaneously submit the affidavits of all of their witnesses and reply
affidavits within ten (10) days from receipt of the affidavits to be replied to. There shall be attached
to the affidavits or reply affidavits documents relied upon in support of the statements of fact in such
affidavits or reply affidavits.
If the petition or the petition in opposition thereto is one for vacation of an arbitral award,
the interested party in arbitration may oppose the petition or the petition in opposition thereto for
the reason that the grounds cited in the petition or the petition in opposition thereto, assuming them
to be true, do not affect the merits of the case and may be cured or remedied. Moreover, the
interested party may request the court to suspend the proceedings for vacation for a period of time
and to direct the arbitral tribunal to reopen and conduct a new hearing and take such other action as
will eliminate the grounds for vacation of the award. The opposition shall be supported by a brief of
legal arguments to show the existence of a sufficient legal basis for the opposition.
If the ground of the petition to vacate an arbitral award is that the arbitration agreement did
not exist, is invalid or otherwise unenforceable, and an earlier petition for judicial relief under Rule 3
had been filed, a copy of such petition and of the decision or final order of the court shall be
attached thereto. But if the ground was raised before the arbitral tribunal in a motion to dismiss filed
not later than the submission of its answer, and the arbitral tribunal ruled in favor of its own
jurisdiction as a preliminary question which was appealed by a party to the Regional Trial Court, a
copy of the order, ruling or preliminary award or decision of the arbitral tribunal, the appeal
therefrom to the Court and the order or decision of the Court shall all be attached to the petition.
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If the ground of the petition is that the petitioner is an infant or a person judicially declared
to be incompetent, there shall be attached to the petition certified copies of documents showing such
fact.
In addition, the petitioner shall show that even if the submission or arbitration agreement
was entered into by a guardian or guardian ad litem, the latter was not authorized by a competent
court to sign such the submission or arbitration agreement.
If on the basis of the petition, the opposition, the affidavits and reply affidavits of the
parties, the court finds that there is a need to conduct an oral hearing, the court shall set the case for
hearing.
This case shall have preference over other cases before the court, except criminal cases.
During the hearing, the affidavits of witnesses shall take the place of their direct testimonies and they
shall immediately be subject to cross-examination thereon. The Court shall have full control over the
proceedings in order to ensure that the case is heard without undue delay.
Rule 11.9. Court action. - Unless a ground to vacate an arbitral award under Rule 11.5 above is fully
established, the court shall confirm the award.
An arbitral award shall enjoy the presumption that it was made and released in due course of
arbitration and is subject to confirmation by the court
In resolving the petition or petition in opposition thereto in accordance with these Special ADR
Rules, the court shall either confirm or vacate the arbitral award. The court shall not disturb the
arbitral tribunals determination of facts and/or interpretation of law.
In referring the case back to the arbitral tribunal or to a new arbitral tribunal pursuant to
Rule 24 of Republic Act No. 876, the court may not direct it to revise its award in a particular way, or
to revise its findings of fact or conclusions of law or otherwise encroach upon the independence of
an arbitral tribunal in the making of a final award.
Rule 12.1. Who may request recognition and enforcement or setting aside. - Any party to an international
commercial arbitration in the Philippines may petition the proper court to recognize and enforce or
set aside an arbitral award.
Rule 12.2. When to file petition. - (A) Petition to recognize and enforce. - The petition for enforcement and
recognition of an arbitral award may be filed anytime from receipt of the award. If, however, a timely
petition to set aside an arbitral award is filed, the opposing party must file therein and in opposition
thereto the petition for recognition and enforcement of the same award within the period for filing
an opposition.
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(B) Petition to set aside. - The petition to set aside an arbitral award may only be filed within three (3)
months from the time the petitioner receives a copy thereof. If a timely request is made with the
arbitral tribunal for correction, interpretation or additional award, the three (3) month period shall be
counted from the time the petitioner receives the resolution by the arbitral tribunal of that request.
A petition to set aside can no longer be filed after the lapse of the three (3) month period.
The dismissal of a petition to set aside an arbitral award for being time-barred shall not automatically
result in the approval of the petition filed therein and in opposition thereto for recognition and
enforcement of the same award. Failure to file a petition to set aside shall preclude a party from
raising grounds to resist enforcement of the award.
Rule 12.3. Venue. - A petition to recognize and enforce or set aside an arbitral award may, at the
option of the petitioner, be filed with the Regional Trial Court: (a) where arbitration proceedings
were conducted; (b) where any of the assets to be attached or levied upon is located; (c) where the act
to be enjoined will be or is being performed; (d) where any of the parties to arbitration resides or has
its place of business; or (e) in the National Capital Judicial Region.
Rule 12.4. Grounds to set aside or resist enforcement. - The court may set aside or refuse the enforcement
of the arbitral award only if:
(i). A party to the arbitration agreement was under some incapacity, or the said agreement is
not valid under the law to which the parties have subjected it or, failing any indication thereof, under
Philippine law; or
(ii). The party making the application to set aside or resist enforcement was not given proper
notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; or
(iii). The award deals with a dispute not contemplated by or not falling within the terms of
the submission to arbitration, or contains decisions on matters beyond the scope of the submission
to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, only that part of the award which contains decisions on matters not
submitted to arbitration may be set aside or only that part of the award which contains decisions on
matters submitted to arbitration may be enforced; or
(iv). The composition of the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties, unless such agreement was in conflict with a provision of
Philippine law from which the parties cannot derogate, or, failing such agreement, was not in
accordance with Philippine law;
(i). The subject-matter of the dispute is not capable of settlement by arbitration under the
law of the Philippines; or
(ii). The recognition or enforcement of the award would be contrary to public policy.
In deciding the petition, the Court shall disregard any other ground to set aside or enforce
the arbitral award other than those enumerated above.
The petition to set-aside or a pleading resisting the enforcement of an arbitral award on the
ground that a party was a minor or an incompetent shall be filed only on behalf of the minor or
incompetent and shall allege that (a) the other party to arbitration had knowingly entered into a
submission or agreement with such minor or incompetent, or (b) the submission to arbitration was
made by a guardian or guardian ad litem who was not authorized to do so by a competent court.
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Rule 12.5. Exclusive recourse against arbitral award. - Recourse to a court against an arbitral award shall
be made only through a petition to set aside the arbitral award and on grounds prescribed by the law
that governs international commercial arbitration. Any other recourse from the arbitral award, such
as by appeal or petition for review or petition for certiorari or otherwise, shall be dismissed by the
court.
Rule 12.6. Form. - The application to recognize and enforce or set aside an arbitral award, whether
made through a petition to recognize and enforce or to set aside or as a petition to set aside the
award in opposition thereto, or through a petition to set aside or petition to recognize and enforce in
opposition thereto, shall be verified by a person who has personal knowledge of the facts stated
therein.
When a petition to recognize and enforce an arbitral award is pending, the application to set
it aside, if not yet time-barred, shall be made through a petition to set aside the same award in the
same proceedings.
When a timely petition to set aside an arbitral award is filed, the opposing party may file a
petition for recognition and enforcement of the same award in opposition thereto.
Rule 12.7. Contents of petition. - (A) Petition to recognize and enforce. - The petition to recognize and
enforce or petition to set aside in opposition thereto, or petition to set aside or petition to recognize
and enforce in opposition thereto, shall state the following:
Apart from other submissions, the petitioner shall attach to the petition the following:
(B) Petition to set aside. - The petition to set aside or petition to set aside in opposition to a
petition to recognize and enforce an arbitral award in international commercial arbitration shall have
the same contents as a petition to recognize and enforce or petition to recognize and enforce in
opposition to a petition to set aside an arbitral award. In addition, the said petitions should state the
grounds relied upon to set it aside.Further, if the ground of the petition to set aside is that the
petitioner is a minor or found incompetent by a court, there shall be attached to the petition certified
copies of documents showing such fact. In addition, the petitioner shall show that even if the
submission or arbitration agreement was entered into by a guardian or guardian ad litem, the latter was
not authorized by a competent court to sign such the submission or arbitration agreement.
In either case, if another court was previously requested to resolve and/or has resolved, on appeal,
the arbitral tribunals preliminary determination in favor of its own jurisdiction, the petitioner shall
apprise the court before which the petition to recognize and enforce or set aside is pending of the
status of the appeal or its resolution.
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Rule 12.8. Notice. - Upon finding that the petition filed under this Rule is sufficient both in form
and in substance, the court shall cause notice and a copy of the petition to be delivered to the
respondent directing him to file an opposition thereto within fifteen (15) days from receipt of the
petition. In lieu of an opposition, the respondent may file a petition to set aside in opposition to a
petition to recognize and enforce, or a petition to recognize and enforce in opposition to a petition
to set aside.
The petitioner may within fifteen (15) days from receipt of the petition to set aside in
opposition to a petition to recognize and enforce, or from receipt of the petition to recognize and
enforce in opposition to a petition to set aside, file a reply.
Rule 12.9. Submission of documents. - If the court finds that the issue between the parties is mainly one
of law, the parties may be required to submit briefs of legal arguments, not more than fifteen (15)
days from receipt of the order, sufficiently discussing the legal issues and the legal basis for the relief
prayed for by each of them.
If the court finds from the petition or petition in opposition thereto that there are issues of
fact relating to the ground(s) relied upon for the court to set aside, it shall require the parties within a
period of not more than fifteen (15) days from receipt of the order simultaneously to submit the
affidavits of all of their witnesses and reply affidavits within ten (10) days from receipt of the
affidavits to be replied to. There shall be attached to the affidavits or reply affidavits, all documents
relied upon in support of the statements of fact in such affidavits or reply affidavits.
Rule 12.10. Hearing. - If on the basis of the petition, the opposition, the affidavits and reply affidavits
of the parties, the court finds that there is a need to conduct an oral hearing, the court shall set the
case for hearing. This case shall have preference over other cases before the court, except criminal
cases. During the hearing, the affidavits of witnesses shall take the place of their direct testimonies
and they shall immediately be subject to cross-examination thereon. The court shall have full control
over the proceedings in order to ensure that the case is heard without undue delay.
Rule 12.11. Suspension of proceedings to set aside. - The court when asked to set aside an arbitral award
may, where appropriate and upon request by a party, suspend the proceedings for a period of time
determined by it to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to
take such other action as in the arbitral tribunals opinion will eliminate the grounds for setting aside.
The court, in referring the case back to the arbitral tribunal may not direct it to revise its award in a
particular way, or to revise its findings of fact or conclusions of law or otherwise encroach upon the
independence of an arbitral tribunal in the making of a final award. The court when asked to set aside
an arbitral award may also, when the preliminary ruling of an arbitral tribunal affirming its jurisdiction
to act on the matter before it had been appealed by the party aggrieved by such preliminary ruling to
the court, suspend the proceedings to set aside to await the ruling of the court on such pending
appeal or, in the alternative, consolidate the proceedings to set aside with the earlier appeal.
Rule 12.12. Presumption in favor of confirmation. - It is presumed that an arbitral award was made and
released in due course and is subject to enforcement by the court, unless the adverse party is able to
establish a ground for setting aside or not enforcing an arbitral award.
Rule 12.13. Judgment of the court. - Unless a ground to set aside an arbitral award under Rule 12.4 above
is fully established, the court shall dismiss the petition. If, in the same proceedings, there is a petition
to recognize and enforce the arbitral award filed in opposition to the petition to set aside, the court
shall recognize and enforce the award.
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In resolving the petition or petition in opposition thereto in accordance with the Special ADR Rules,
the court shall either set aside or enforce the arbitral award. The court shall not disturb the arbitral
tribunals determination of facts and/or interpretation of law.
Rule 12.14. Costs. - Unless otherwise agreed upon by the parties in writing, at the time the case is
submitted to the court for decision, the party praying for recognition and enforcement or setting
aside of an arbitral award shall submit a statement under oath confirming the costs he has incurred
only in the proceedings for such recognition and enforcement or setting aside. The costs shall include
the attorneys fees the party has paid or is committed to pay to his counsel of record.
The prevailing party shall be entitled to an award of costs, which shall include reasonable attorneys
fees of the prevailing party against the unsuccessful party. The court shall determine the
reasonableness of the claim for attorneys fees.
Rule 13.1. Who may request recognition and enforcement. - Any party to a foreign arbitration may petition
the court to recognize and enforce a foreign arbitral award.
Rule 13.2. When to petition. - At any time after receipt of a foreign arbitral award, any party to
arbitration may petition the proper Regional Trial Court to recognize and enforce such award.
Rule 13.3. Venue. - The petition to recognize and enforce a foreign arbitral award shall be filed, at the
option of the petitioner, with the Regional Trial Court (a) where the assets to be attached or levied
upon is located, (b) where the act to be enjoined is being performed, (c) in the principal place of
business in the Philippines of any of the parties, (d) if any of the parties is an individual, where any of
those individuals resides, or (e) in the National Capital Judicial Region.
Rule 13.4. Governing law and grounds to refuse recognition and enforcement. - The recognition and
enforcement of a foreign arbitral award shall be governed by the 1958 New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the "New York Convention") and this
Rule. The court may, upon grounds of comity and reciprocity, recognize and enforce a foreign
arbitral award made in a country that is not a signatory to the New York Convention as if it were a
Convention Award. A Philippine court shall not set aside a foreign arbitral award but may refuse it
recognition and enforcement on any or all of the following grounds:
a. The party making the application to refuse recognition and enforcement of the award furnishes
proof that:
(i). A party to the arbitration agreement was under some incapacity; or the said agreement is
not valid under the law to which the parties have subjected it or, failing any indication thereof, under
the law of the country where the award was made; or
(ii). The party making the application was not given proper notice of the appointment of an
arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or
(iii). The award deals with a dispute not contemplated by or not falling within the terms of
the submission to arbitration, or contains decisions on matters beyond the scope of the submission
to arbitration; provided that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, only that part of the award which contains decisions on matters not
submitted to arbitration may be set aside; or
(iv). The composition of the arbitral tribunal or the arbitral procedure was not in accordance
with the agreement of the parties or, failing such agreement, was not in accordance with the law of
the country where arbitration took place; or
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(v). The award has not yet become binding on the parties or has been set aside or suspended
by a court of the country in which that award was made; or
(i). The subject-matter of the dispute is not capable of settlement or resolution by arbitration
under Philippine law; or
(ii). The recognition or enforcement of the award would be contrary to public policy.
The court shall disregard any ground for opposing the recognition and enforcement of a
foreign arbitral award other than those enumerated above.
Rule 13.5. Contents of petition. - The petition shall state the following:
If the foreign arbitral award or agreement to arbitrate or submission is not made in English,
the petitioner shall also attach to the petition a translation of these documents into English. The
translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.
Rule 13.6. Notice and opposition. - Upon finding that the petition filed under this Rule is sufficient both
in form and in substance, the court shall cause notice and a copy of the petition to be delivered to the
respondent allowing him to file an opposition thereto within thirty (30) days from receipt of the
notice and petition.
Rule 13.7. Opposition. - The opposition shall be verified by a person who has personal knowledge of
the facts stated therein.
Rule 13.8. Submissions. - If the court finds that the issue between the parties is mainly one of law, the
parties may be required to submit briefs of legal arguments, not more than thirty (30) days from
receipt of the order, sufficiently discussing the legal issues and the legal bases for the relief prayed for
by each other. If, from a review of the petition or opposition, there are issues of fact relating to the
ground/s relied upon for the court to refuse enforcement, the court shall, motu proprio or upon
request of any party, require the parties to simultaneously submit the affidavits of all of their
witnesses within a period of not less than fifteen (15) days nor more than thirty (30) days from
receipt of the order. The court may, upon the request of any party, allow the submission of reply
affidavits within a period of not less than fifteen (15) days nor more than thirty (30) days from
receipt of the order granting said request. There shall be attached to the affidavits or reply affidavits
all documents relied upon in support of the statements of fact in such affidavits or reply affidavits.
Rule 13.9. Hearing. - The court shall set the case for hearing if on the basis of the foregoing
submissions there is a need to do so. The court shall give due priority to hearings on petitions under
this Rule. During the hearing, the affidavits of witnesses shall take the place of their direct
testimonies and they shall immediately be subject to cross-examination. The court shall have full
control over the proceedings in order to ensure that the case is heard without undue delay.
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Rule 13.10. Adjournment/deferment of decision on enforcement of award. - The court before which a petition
to recognize and enforce a foreign arbitral award is pending, may adjourn or defer rendering a
decision thereon if, in the meantime, an application for the setting aside or suspension of the award
has been made with a competent authority in the country where the award was made. Upon
application of the petitioner, the court may also require the other party to give suitable security.
Rule 13.11. Court action. - It is presumed that a foreign arbitral award was made and released in due
course of arbitration and is subject to enforcement by the court. The court shall recognize and
enforce a foreign arbitral award unless a ground to refuse recognition or enforcement of the foreign
arbitral award under this rule is fully established. The decision of the court recognizing and enforcing
a foreign arbitral award is immediately executory. In resolving the petition for recognition and
enforcement of a foreign arbitral award in accordance with these Special ADR Rules, the court shall
either [a] recognize and/or enforce or [b] refuse to recognize and enforce the arbitral award. The
court shall not disturb the arbitral tribunals determination of facts and/or interpretation of law.
Rule 13.12. Recognition and enforcement of non-convention award. - The court shall, only upon grounds
provided by these Special ADR Rules, recognize and enforce a foreign arbitral award made in a
country not a signatory to the New York Convention when such country extends comity and
reciprocity to awards made in the Philippines. If that country does not extend comity and reciprocity
to awards made in the Philippines, the court may nevertheless treat such award as a foreign judgment
enforceable as such under Rule 39, Section 48, of the Rules of Court.
PART III
Rule 14.1. Application of the rules on arbitration. - Whenever applicable and appropriate, the pertinent
rules on arbitration shall be applied in proceedings before the court relative to a dispute subject to
mediation.
Rule 15.1. Who makes a deposit. - Any party to a mediation that is not court-annexed may deposit with
the court the written settlement agreement, which resulted from that mediation.
Rule 15.2. When deposit is made. - At any time after an agreement is reached, the written settlement
agreement may be deposited.
Rule 15.3. Venue. - The written settlement agreement may be jointly deposited by the parties or
deposited by one party with prior notice to the other party/ies with the Clerk of Court of the
Regional Trial Court (a) where the principal place of business in the Philippines of any of the parties
is located; (b) if any of the parties is an individual, where any of those individuals resides; or (c) in the
National Capital Judicial Region.
Rule 15.4. Registry Book. - The Clerk of Court of each Regional Trial Court shall keep a Registry Book
that shall chronologically list or enroll all the mediated settlement agreements/settlement awards that
are deposited with the court as well as the names and address of the parties thereto and the date of
enrollment and shall issue a Certificate of Deposit to the party that made the deposit.
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Rule 15.5. Enforcement of mediated settlement agreement. - Any of the parties to a mediated settlement
agreement, which was deposited with the Clerk of Court of the Regional Trial Court, may, upon
breach thereof, file a verified petition with the same court to enforce said agreement.
a. Name and designate, as petitioner or respondent, all parties to the mediated settlement
agreement and those who may be affected by it;
b. State the following:
Rule 15.7. Opposition. - The adverse party may file an opposition, within fifteen (15) days from receipt
of notice or service of the petition, by submitting written proof of compliance with the mediated
settlement agreement or such other affirmative or negative defenses it may have.
Rule 15.8. Court action. - After a summary hearing, if the court finds that the agreement is a valid
mediated settlement agreement, that there is no merit in any of the affirmative or negative defenses
raised, and the respondent has breached that agreement, in whole or in part, the court shall order the
enforcement thereof; otherwise, it shall dismiss the petition.
PART IV
Rule 16.1. Application of the rules on arbitration. - Whenever applicable and appropriate, the rules on
arbitration shall be applied in proceedings before the court relative to a dispute subject to
construction arbitration.
Rule 17.1. Dismissal of action. - A Regional Trial Court before which a construction dispute is filed
shall, upon becoming aware that the parties have entered into an arbitration agreement, motu
proprio or upon motion made not later than the pre-trial, dismiss the case and refer the parties to
arbitration to be conducted by the Construction Industry Arbitration Commission (CIAC), unless all
parties to arbitration, assisted by their respective counsel, submit to the court a written agreement
making the court, rather than the CIAC, the body that would exclusively resolve the dispute.
Rule 17.2. Form and contents of motion. - The request for dismissal of the civil action and referral to
arbitration shall be through a verified motion that shall (a) contain a statement showing that the
dispute is a construction dispute; and (b) be accompanied by proof of the existence of the arbitration
agreement.
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If the arbitration agreement or other document evidencing the existence of that agreement is already
part of the record, those documents need not be submitted to the court provided that the movant
has cited in the motion particular references to the records where those documents may be found.
The motion shall also contain a notice of hearing addressed to all parties and shall specify the date
and time when the motion will be heard, which must not be later than fifteen (15) days after the filing
of the motion. The movant shall ensure receipt by all parties of the motion at least three days before
the date of the hearing.
Rule 17.3. Opposition. - Upon receipt of the motion to refer the dispute to arbitration by CIAC, the
other party may file an opposition to the motion on or before the day such motion is to be heard.
The opposition shall clearly set forth the reasons why the court should not dismiss the case.
Rule 17.4. Hearing. - The court shall hear the motion only once and for the purpose of clarifying
relevant factual and legal issues.
Rule 17.5. Court action. - If the other parties fail to file their opposition on or before the day of the
hearing, the court shall motu proprio resolve the motion only on the basis of the facts alleged in the
motion. After hearing, the court shall dismiss the civil action and refer the parties to arbitration if it
finds, based on the pleadings and supporting documents submitted by the parties, that there is a valid
and enforceable arbitration agreement involving a construction dispute. Otherwise, the court shall
proceed to hear the case. All doubts shall be resolved in favor of the existence of a construction
dispute and the arbitration agreement.
Rule 17.6. Referral immediately executory. - An order dismissing the case and referring the dispute to
arbitration by CIAC shall be immediately executory.
Rule 17.7. Multiple actions and parties. - The court shall not decline to dismiss the civil action and make
a referral to arbitration by CIAC for any of the following reasons:
a. Not all of the disputes subject of the civil action may be referred to arbitration;
b. Not all of the parties to the civil action are bound by the arbitration agreement and
referral to arbitration would result in multiplicity of suits;
c. The issues raised in the civil action could be speedily and efficiently resolved in its entirety
by the Court rather than in arbitration;
d. Referral to arbitration does not appear to be the most prudent action; or
e. Dismissal of the civil action would prejudice the rights of the parties to the civil action
who are not bound by the arbitration agreement.
The court may, however, issue an order directing the inclusion in arbitration of those parties
who are bound by the arbitration agreement directly or by reference thereto pursuant to Section 34
of Republic Act No. 9285.Furthermore, the court shall issue an order directing the case to proceed
with respect to the parties not bound by the arbitration agreement.
Rule 17.8. Referral - If the parties manifest that they have agreed to submit all or part of their dispute
pending with the court to arbitration by CIAC, the court shall refer them to CIAC for arbitration.
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PART V
Rule 18.1. Applicability of rules to other forms of ADR. - This rule governs the procedure for matters
brought before the court involving the following forms of ADR:
Rule 18.2. Applicability of the rules on mediation. - If the other ADR form/process is more akin to
mediation (i.e., the neutral third party merely assists the parties in reaching a voluntary agreement),
the herein rules on mediation shall apply.
Rule 18.3. Applicability of rules on arbitration.-If the other ADR form/process is more akin to
arbitration (i.e., the neutral third party has the power to make a binding resolution of the dispute), the
herein rules on arbitration shall apply.
Rule 18.4. Referral. - If a dispute is already before a court, either party may before and during pre-
trial, file a motion for the court to refer the parties to other ADR forms/processes. At any time
during court proceedings, even after pre-trial, the parties may jointly move for suspension of the
action pursuant to Article 2030 of the Civil Code of the Philippines where the possibility of
compromise is shown.
Rule 18.5. Submission of settlement agreement. - Either party may submit to the court, before which the
case is pending, any settlement agreement following a neutral or an early neutral evaluation, mini-trial
or mediation-arbitration.
PART VI
Rule 19.1. Motion for reconsideration, when allowed. - A party may ask the Regional Trial to
reconsider its ruling on the following:
a. That the arbitration agreement is inexistent, invalid or unenforceable pursuant to Rule 3.10
(B);
b. Upholding or reversing the arbitral tribunals jurisdiction pursuant to Rule 3.19;
c. Denying a request to refer the parties to arbitration;
d. Granting or denying a party an interim measure of protection;
e. Denying a petition for the appointment of an arbitrator;
f. Refusing to grant assistance in taking evidence;
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No motion for reconsideration shall be allowed from the following rulings of the Regional
Trial Court:
Rule 19.2. When to move for reconsideration. - A motion for reconsideration may be filed with the
Regional Trial Court within a non-extendible period of fifteen (15) days from receipt of the
questioned ruling or order.
Rule 19.3. Contents and notice. - The motion shall be made in writing stating the ground or grounds
therefor and shall be filed with the court and served upon the other party or parties.
Rule 19.4. Opposition or comment. - Upon receipt of the motion for reconsideration, the other party or
parties shall have a non-extendible period of fifteen (15) days to file his opposition or comment.
Rule 19.5. Resolution of motion. - A motion for reconsideration shall be resolved within thirty (30) days
from receipt of the opposition or comment or upon the expiration of the period to file such
opposition or comment.
Rule 19.6. No second motion for reconsideration. - No party shall be allowed a second motion for
reconsideration.
Rule 19.7. No appeal or certiorari on the merits of an arbitral award. - An agreement to refer a dispute to
arbitration shall mean that the arbitral award shall be final and binding. Consequently, a party to an
arbitration is precluded from filing an appeal or a petition for certiorari questioning the merits of an
arbitral award.
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Rule 19.8. Subject matter and governing rules. - The remedy of an appeal through a petition for review or
the remedy of a special civil action of certiorari from a decision of the Regional Trial Court made
under the Special ADR Rules shall be allowed in the instances, and instituted only in the manner,
provided under this Rule.
Rule 19.9. Prohibited alternative remedies. - Where the remedies of appeal and certiorari are specifically
made available to a party under the Special ADR Rules, recourse to one remedy shall preclude
recourse to the other.
Rule 19.10. Rule on judicial review on arbitration in the Philippines. - As a general rule, the court can only
vacate or set aside the decision of an arbitral tribunal upon a clear showing that the award suffers
from any of the infirmities or grounds for vacating an arbitral award under Section 24 of Republic
Act No. 876 or under Rule 34 of the Model Law in a domestic arbitration, or for setting aside an
award in an international arbitration under Article 34 of the Model Law, or for such other grounds
provided under these Special Rules. If the Regional Trial Court is asked to set aside an arbitral award
in a domestic or international arbitration on any ground other than those provided in the Special
ADR Rules, the court shall entertain such ground for the setting aside or non-recognition of the
arbitral award only if the same amounts to a violation of public policy. The court shall not set aside
or vacate the award of the arbitral tribunal merely on the ground that the arbitral tribunal committed
errors of fact, or of law, or of fact and law, as the court cannot substitute its judgment for that of the
arbitral tribunal.
Rule 19.11. Rule on judicial review of foreign arbitral award. - The court can deny recognition and
enforcement of a foreign arbitral award only upon the grounds provided in Article V of the New
York Convention, but shall have no power to vacate or set aside a foreign arbitral award.
Rule 19.12. Appeal to the Court of Appeals. - An appeal to the Court of Appeals through a petition for
review under this Special Rule shall only be allowed from the following final orders of the Regional
Trial Court:
Rule 19.13. Where to appeal. - An appeal under this Rule shall be taken to the Court of Appeals within
the period and in the manner herein provided.
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Rule 19.14. When to appeal. - The petition for review shall be filed within fifteen (15) days from notice
of the decision of the Regional Trial Court or the denial of the petitioners motion for
reconsideration.
Rule 19.15. How appeal taken. - Appeal shall be taken by filing a verified petition for review in seven
(7) legible copies with the Court of Appeals, with proof of service of a copy thereof on the adverse
party and on the Regional Trial Court. The original copy of the petition intended for the Court of
Appeals shall be marked original by the petitioner.
Upon the filing of the petition and unless otherwise prescribed by the Court of Appeals, the
petitioner shall pay to the clerk of court of the Court of Appeals docketing fees and other lawful fees
of P3,500.00 and deposit the sum of P500.00 for costs.
Exemption from payment of docket and other lawful fees and the deposit for costs may be granted
by the Court of Appeals upon a verified motion setting forth valid grounds therefor. If the Court of
Appeals denies the motion, the petitioner shall pay the docketing and other lawful fees and deposit
for costs within fifteen days from the notice of the denial.
Rule 19.16. Contents of the Petition. - The petition for review shall (a) state the full names of the parties
to the case, without impleading the court or agencies either as petitioners or respondent, (b) contain a
concise statement of the facts and issues involved and the grounds relied upon for the review, (c) be
accompanied by a clearly legible duplicate original or a certified true copy of the decision or
resolution of the Regional Trial Court appealed from, together with certified true copies of such
material portions of the record referred to therein and other supporting papers, and (d) contain a
sworn certification against forum shopping as provided in the Rules of Court. The petition shall state
the specific material dates showing that it was filed within the period fixed herein.
Rule 19.17. Effect of failure to comply with requirements. - The court shall dismiss the petition if it fails to
comply with the foregoing requirements regarding the payment of the docket and other lawful fees,
the deposit for costs, proof of service of the petition, the contents and the documents, which should
accompany the petition.
Rule 19.18. Action on the petition. - The Court of Appeals may require the respondent to file a
comment on the petition, not a motion to dismiss, within ten (10) days from notice, or dismiss the
petition if it finds, upon consideration of the grounds alleged and the legal briefs submitted by the
parties, that the petition does not appear to be prima facie meritorious.
Rule 19.19. Contents of Comment. - The comment shall be filed within ten (10) days from notice in
seven (7) legible copies and accompanied by clearly legible certified true copies of such material
portions of the record referred to therein together with other supporting papers. The comment shall
(a) point out insufficiencies or inaccuracies in petitioners statement of facts and issues, and (b) state
the reasons why the petition should be denied or dismissed. A copy thereof shall be served on the
petitioner, and proof of such service shall be filed with the Court of Appeals.
Rule 19.20. Due course. - If upon the filing of a comment or such other pleading or documents as may
be required or allowed by the Court of Appeals or upon the expiration of the period for the filing
thereof, and on the basis of the petition or the records, the Court of Appeals finds prima facie that
the Regional Trial Court has committed an error that would warrant reversal or modification of the
judgment, final order, or resolution sought to be reviewed, it may give due course to the petition;
otherwise, it shall dismiss the same.
Rule 19.21. Transmittal of records. - Within fifteen (15) days from notice that the petition has been
given due course, the Court of Appeals may require the court or agency concerned to transmit the
original or a legible certified true copy of the entire record of the proceeding under review. The
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record to be transmitted may be abridged by agreement of all parties to the proceeding. The Court of
Appeals may require or permit subsequent correction of or addition to the record.
Rule 19.22. Effect of appeal. - The appeal shall not stay the award, judgment, final order or resolution
sought to be reviewed unless the Court of Appeals directs otherwise upon such terms as it may deem
just.
Rule 19.23. Submission for decision. - If the petition is given due course, the Court of Appeals may set
the case for oral argument or require the parties to submit memoranda within a period of fifteen (15)
days from notice. The case shall be deemed submitted for decision upon the filing of the last
pleading or memorandum required by the Court of Appeals.
The Court of Appeals shall render judgment within sixty (60) days from the time the case is
submitted for decision.
Rule 19.24. Subject of appeal restricted in certain instance. - If the decision of the Regional Trial Court
refusing to recognize and/or enforce, vacating and/or setting aside an arbitral award is premised on a
finding of fact, the Court of Appeals may inquire only into such fact to determine the existence or
non-existence of the specific ground under the arbitration laws of the Philippines relied upon by the
Regional Trial Court to refuse to recognize and/or enforce, vacate and/or set aside an award. Any
such inquiry into a question of fact shall not be resorted to for the purpose of substituting the courts
judgment for that of the arbitral tribunal as regards the latters ruling on the merits of the
controversy.
Rule 19.25. Party appealing decision of court confirming arbitral award required to post bond. - The Court of
Appeals shall within fifteen (15) days from receipt of the petition require the party appealing from
the decision or a final order of the Regional Trial Court, either confirming or enforcing an arbitral
award, or denying a petition to set aside or vacate the arbitral award to post a bond executed in favor
of the prevailing party equal to the amount of the award.
Failure of the petitioner to post such bond shall be a ground for the Court of Appeals to dismiss the
petition.
Rule 19.26. Certiorari to the Court of Appeals. - When the Regional Trial Court, in making a ruling under
the Special ADR Rules, has acted without or in excess of its jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal or any plain, speedy, and
adequate remedy in the ordinary course of law, a party may file a special civil action for certiorari to
annul or set aside a ruling of the Regional Trial Court.
A special civil action for certiorari may be filed against the following orders of the court.
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Rule 19.27. Form. - The petition shall be accompanied by a certified true copy of the questioned
judgment, order or resolution of the Regional Trial Court, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the
Rules of Court. Upon the filing of the petition and unless otherwise prescribed by the Court of
Appeals, the petitioner shall pay to the clerk of court of the Court of Appeals docketing fees and
other lawful fees of P3,500.00 and deposit the sum of P500.00 for costs. Exemption from payment
of docket and other lawful fees and the deposit for costs may be granted by the Court of Appeals
upon a verified motion setting forth valid grounds therefor. If the Court of Appeals denies the
motion, the petitioner shall pay the docketing and other lawful fees and deposit for costs within
fifteen days from the notice of the denial.
Rule 19.28. When to file petition. - The petition must be filed with the Court of Appeals within fifteen
(15) days from notice of the judgment, order or resolution sought to be annulled or set aside. No
extension of time to file the petition shall be allowed.
Rule 19.29. Arbitral tribunal a nominal party in the petition. - The arbitral tribunal shall only be a nominal
party in the petition for certiorari. As nominal party, the arbitral tribunal shall not be required to
submit any pleadings or written submissions to the court. The arbitral tribunal or an arbitrator may,
however, submit such pleadings or written submissions if the same serves the interest of justice.
In petitions relating to the recognition and enforcement of a foreign arbitral award, the arbitral
tribunal shall not be included even as a nominal party. However, the tribunal may be notified of the
proceedings and furnished with court processes.
Rule 19.30. Court to dismiss petition. - The court shall dismiss the petition if it fails to comply with
Rules 19.27 and 19.28 above, or upon consideration of the ground alleged and the legal briefs
submitted by the parties, the petition does not appear to be prima facie meritorious.
Rule 19.31. Order to comment. - If the petition is sufficient in form and substance to justify such
process, the Court of Appeals shall immediately issue an order requiring the respondent or
respondents to comment on the petition within a non-extendible period of fifteen (15) days from
receipt of a copy thereof. Such order shall be served on the respondents in such manner as the court
may direct, together with a copy of the petition and any annexes thereto.
Rule 19.32. Arbitration may continue despite petition for certiorari. - A petition for certiorari to the court
from the action of the appointing authority or the arbitral tribunal allowed under this Rule shall not
prevent the arbitral tribunal from continuing the proceedings and rendering its award. Should the
arbitral tribunal continue with the proceedings, the arbitral proceedings and any award rendered
therein will be subject to the final outcome of the pending petition for certiorari.
Rule 19.33. Prohibition against injunctions. - The Court of Appeals shall not, during the pendency of the
proceedings before it, prohibit or enjoin the commencement of arbitration, the constitution of the
arbitral tribunal, or the continuation of arbitration.
Rule 19.34. Proceedings after comment is filed. - After the comment is filed, or the time for the filing
thereof has expired, the court shall render judgment granting the relief prayed for or to which the
petitioner is entitled, or denying the same, within a non-extendible period of fifteen (15) days.
Rule 19.35. Service and enforcement of order or judgment. - A certified copy of the judgment rendered in
accordance with the last preceding section shall be served upon the Regional Trial Court concerned
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in such manner as the Court of Appeals may direct, and disobedience thereto shall be punished as
contempt.
Rule 19.36. Review discretionary. - A review by the Supreme Court is not a matter of right, but of sound
judicial discretion, which will be granted only for serious and compelling reasons resulting in grave
prejudice to the aggrieved party. The following, while neither controlling nor fully measuring the
court's discretion, indicate the serious and compelling, and necessarily, restrictive nature of the
grounds that will warrant the exercise of the Supreme Courts discretionary powers, when the Court
of Appeals:
a. Failed to apply the applicable standard or test for judicial review prescribed in these
Special ADR Rules in arriving at its decision resulting in substantial prejudice to the aggrieved party;
b. Erred in upholding a final order or decision despite the lack of jurisdiction of the court
that rendered such final order or decision;
c. Failed to apply any provision, principle, policy or rule contained in these Special ADR
Rules resulting in substantial prejudice to the aggrieved party; and
d. Committed an error so egregious and harmful to a party as to amount to an undeniable
excess of jurisdiction.
The mere fact that the petitioner disagrees with the Court of Appeals determination of
questions of fact, of law or both questions of fact and law, shall not warrant the exercise of the
Supreme Courts discretionary power. The error imputed to the Court of Appeals must be grounded
upon any of the above prescribed grounds for review or be closely analogous thereto.A mere general
allegation that the Court of Appeals has committed serious and substantial error or that it has acted
with grave abuse of discretion resulting in substantial prejudice to the petitioner without indicating
with specificity the nature of such error or abuse of discretion and the serious prejudice suffered by
the petitioner on account thereof, shall constitute sufficient ground for the Supreme Court to dismiss
outright the petition.
Rule 19.37. Filing of petition with Supreme Court. - A party desiring to appeal by certiorari from a
judgment or final order or resolution of the Court of Appeals issued pursuant to these Special ADR
Rules may file with the Supreme Court a verified petition for review on certiorari. The petition shall
raise only questions of law, which must be distinctly set forth.
Rule 19.38. Time for filing; extension. - The petition shall be filed within fifteen (15) days from notice of
the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion
for new trial or reconsideration filed in due time after notice of the judgment.
On motion duly filed and served, with full payment of the docket and other lawful fees and the
deposit for costs before the expiration of the reglementary period, the Supreme Court may for
justifiable reasons grant an extension of thirty (30) days only within which to file the petition.
Rule 19.39. Docket and other lawful fees; proof of service of petition. - Unless he has theretofore done so or
unless the Supreme Court orders otherwise, the petitioner shall pay docket and other lawful fees to
the clerk of court of the Supreme Court of P3,500.00 and deposit the amount of P500.00 for costs at
the time of the filing of the petition. Proof of service of a copy thereof on the lower court concerned
and on the adverse party shall be submitted together with the petition.
Rule 19.40. Contents of petition. - The petition shall be filed in eighteen (18) copies, with the original
copy intended for the court being indicated as such by the petitioner, and shall (a) state the full name
of the appealing party as the petitioner and the adverse party as respondent, without impleading the
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lower courts or judges thereof either as petitioners or respondents; (b) indicate the material dates
showing when notice of the judgment or final order or resolution subject thereof was received, when
a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was
received; (c) set forth concisely a statement of the matters involved, and the reasons or arguments
relied on for the allowance of the petition; (d) be accompanied by a clearly legible duplicate original,
or a certified true copy of the judgment or final order or resolution certified by the clerk of court of
the court a quo and the requisite number of plain copies thereof, and such material portions of the
record as would support the petition; and (e) contain a sworn certification against forum shopping.
Rule 19.41. Dismissal or denial of petition. - The failure of the petitioner to comply with any of the
foregoing requirements regarding the payment of the docket and other lawful fees, deposit for costs,
proof of service of the petition, and the contents of and the documents which should accompany the
petition shall be sufficient ground for the dismissal thereof.
The Supreme Court may on its own initiative deny the petition on the ground that the appeal is
without merit, or is prosecuted manifestly for delay, or that the questions raised therein are too
insubstantial to require consideration.
Rule 19.42. Due course; elevation of records. - If the petition is given due course, the Supreme Court may
require the elevation of the complete record of the case or specified parts thereof within fifteen (15)
days from notice.
PART VII
FINAL PROVISIONS
Rule 20.1. Filing fee in petitions or counter-petitions to confirm or enforce, vacate or set aside arbitral award or for the
enforcement of a mediated settlement agreement. - The filing fee for filing a petition to confirm or enforce,
vacate or set aside an arbitral award in a domestic arbitration or in an international commercial
arbitration, or enforce a mediated settlement agreement shall be as follows:
PhP 10,000.00 - if the award does not exceed PhP 1,000,000.00
PhP 20,000.00 - if the award does not exceed PhP 20,000,000.00
PhP 30,000.00 - if the award does not exceed PhP 50,000,000.00
PhP 40,000.00 - if the award does not exceed PhP 100,000,000.00
PhP 50,000.00 - if the award exceeds PhP 100,000,000.00
The minimal filing fee payable in "all other actions not involving property" shall be paid by
the petitioner seeking to enforce foreign arbitral awards under the New York Convention in
the Philippines.
Rule 20.2. Filing fee for action to enforce as a counter-petition. - A petition to enforce an arbitral award in a
domestic arbitration or in an international commercial arbitration submitted as a petition to enforce
and/or recognize an award in opposition to a timely petition to vacate or set aside the arbitral award
shall require the payment of the filing fees prescribed in Rule 20.1 above.
Rule 20.3. Deposit fee for mediated settlement agreements. - Any party to a mediated settlement agreement
who deposits it with the clerk of court shall pay a deposit fee of P500.00.
Rule 20.4. Filing fee for other proceedings. - The filing fee for the filing of any other proceedings,
including applications for interim relief, as authorized under these Special Rules not covered under
any of the foregoing provisions, shall be P10,000.00.
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Rule 21.1. Costs. - The costs of the ADR proceedings shall be borne by the parties equally unless
otherwise agreed upon or directed by the arbitrator or arbitral tribunal.
Rule 21.2. On the dismissal of a petition against a ruling of the arbitral tribunal on a preliminary question
upholding its jurisdiction. - If the Regional Trial Court dismisses the petition against the ruling of the
arbitral tribunal on a preliminary question upholding its jurisdiction, it shall also order the petitioner
to pay the respondent all reasonable costs and expenses incurred in opposing the petition. "Costs"
shall include reasonable attorneys fees. The court shall award costs upon application of the
respondent after the petition is denied and the court finds, based on proof submitted by respondent,
that the amount of costs incurred is reasonable.
Rule 21.3. On recognition and enforcement of a foreign arbitral award. - At the time the case is submitted to
the court for decision, the party praying for recognition and enforcement of a foreign arbitral award
shall submit a statement under oath confirming the costs he has incurred only in the proceedings in
the Philippines for such recognition and enforcement or setting-aside. The costs shall include
attorneys fees the party has paid or is committed to pay to his counsel of record.
The prevailing party shall be entitled to an award of costs which shall include the reasonable
attorneys fees of the prevailing party against the unsuccessful party. The court shall determine the
reasonableness of the claim for attorneys fees.
Rule 21.4. Costs. - At the time the case is submitted to the court for decision, the party praying for
confirmation or vacation of an arbitral award shall submit a statement under oath confirming the
costs he has incurred only in the proceedings for confirmation or vacation of an arbitral award. The
costs shall include the attorneys fees the party has paid or is committed to pay to his counsel of
record.
The prevailing party shall be entitled to an award of costs with respect to the proceedings before the
court, which shall include the reasonable attorneys fees of the prevailing party against the
unsuccessful party. The court shall determine the reasonableness of the claim for attorneys fees.
Rule 21.5. Bill of Costs. - Unless otherwise agreed upon by the parties in writing, at the time the case is
submitted to the court for decision, the party praying for recognition and enforcement or for setting
aside an arbitral award shall submit a statement under oath confirming the costs he has incurred only
in the proceedings for such recognition and enforcement or setting-aside. The costs shall include
attorneys fees the party has paid or is committed to pay to his counsel of record.
The prevailing party shall be entitled to an award of costs, which shall include reasonable attorneys
fees of the prevailing party against the unsuccessful party. The court shall determine the
reasonableness of the claim for attorneys fees.
Rule 21.6. Governments exemption from payment of fees. - The Republic of the Philippines, its agencies and
instrumentalities are exempt from paying legal fees provided in these Special ADR Rules. Local
governments and government controlled corporation with or with or without independent charters
are not exempt from paying such fees.
Rule 22.1. Applicability of Rules of Court. - The provisions of the Rules of Court that are applicable to
the proceedings enumerated in Rule 1.1 of these Special ADR Rules have either been included and
incorporated in these Special ADR Rules or specifically referred to herein.
In connection with the above proceedings, the Rules of Evidence shall be liberally construed to
achieve the objectives of the Special ADR Rules.
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Rule 23.1. Separability Clause. - If, for any reason, any part of the Special ADR Rules shall be held
unconstitutional or invalid, other Rules or provisions hereof which are not affected thereby, shall
continue to be in full force and effect.
Rule 24.1. Transitory Provision. - Considering its procedural character, the Special ADR Rules shall be
applicable to all pending arbitration, mediation or other ADR forms covered by the ADR Act, unless
the parties agree otherwise. The Special ADR Rules, however, may not prejudice or impair vested
rights in accordance with law.
Rule 25.1. Applicability of the Special ADR Rules to Online Dispute Resolution. - Whenever applicable and
appropriate, the Special ADR Rules shall govern the procedure for matters brought before the court
involving Online Dispute Resolution.
Rule 25.2. Scope of Online Dispute Resolution. - Online Dispute Resolution shall refer to all electronic
forms of ADR including the use of the internet and other web or computed based technologies for
facilitating ADR.
Rule 26.1. Effectivity. - The Special ADR Rules shall take effect fifteen (15) days after its complete
publication in two (2) newspapers of general circulation.
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Sec. 1. Title of the Rule- This rule shall be known and cited as the Efficient Use of Paper Rule.
Sec. 2. Applicability. This rule shall apply to all courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court.
a) All pleadings, motions and similar papers intended for the court and quasi-judicial bodys
consideration and action (court-bound papers) shall written in single space with one-and-a half
space between paragraphs, using an easily readable font style of the partys choice, of 14-size font,
and on a 13 inch by 8.5- inch white bond paper; and
b) All decisions, resolutions and orders issued by courts and quasi-judicial bodies under the
administrative supervision of the Supreme Court shall comply with these requirements. Similarly
covered are the reports submitted to the courts and transcripts of stenographic notes.
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Sec. 4. Margins and Prints . The parties shall maintain the following margins on all court-bound
papers: a left hand margin of 1.5 inches from the edge; an upper margin of 1.2 inches from the edge;
a right hand margin of 1.0 inch from the edge; and a lower margin of 1.0 inch from the edge. Every
page must be consecutively numbered.
Sec. 5. Copies to be filed. Unless otherwise directed by the court, the number of court- bound papers
that a party is required or desires to file shall be as follows:
a. In the Supreme Court, one original (properly marked) and four copies, unless the case is
referred to the Court En Banc, in which event, the parties shall file ten additional copies. For the En
Banc, the parties need to submit only two sets of annexes, one attached to the original and an extra
copy.
For the Division, the parties need to submit also two sets of annexes, one attached to the
original and an extra copy. All members of the Court shall share the extra copies of annexes in the
interest of economy of paper.
Parties to cases before the Supreme Court are further required, on voluntary basis for the
first six months following the effectivity of this Rule and compulsorily afterwards unless the period is
extended, to submit, simultaneously with their court-bound papers, soft copies of the same and their
annexes (the latter in PDF format) either by email to the Courts e-mail address or by compact disc
(CD). This requirement is in preparation for the eventual establishment of an e-filing paperless
system in the judiciary.
b. In the Court of Appeals and the Sandiganbayan, one original (properly marked) and two
copies with their annexes;
c. In the Court of Tax Appeals, one original (properly marked) and two copies with annexes.
On appeal to the En Banc, one Original (properly marked) and eight copies with annexes; and
d. In other courts, one original (properly marked) with the stated annexes attached to it.
Sec. 6. Annexes Served on Adverse Party. A party required by the rules to serve a copy of his court-
bound on the adverse party need not enclose copies of those annexes that based on the record of the
court such party already has in his possession. In the event a party requests a set of the annexes
actually filed with the court, the part who filed the paper shall comply with the request within five
days from receipt.
Sec. 7. Date of Effectivity. This rule shall take effect on January 1, 2013 after publication in two
newspapers of general circulation in the Philippines.
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