Dean Rianos Lecture 2014 1
Example, an Australian resident filed a case for
REMEDIAL LAW
TRANSCRIPT 1
How does Remedial Law operate? When a right has been
violated.
The very first part of Civil Procedure is to file a complaint
because your right is violated.
Right of action the right to file a complaint
- It arises when your right has been violated.
- Remedial, not substantive law.
- You have a right of action because you have a cause of
action.
Do you need a cause of action in all civil actions?
No. A cause of action is mandatory only in ordinary civil
actions.
Start with Rule 2 where the real meat starts, Remedial law
starts. Not with Rule 1 because it is only introductory.
Cause of Action is in Sec. 2. It involves a right that is violated.
Example. I borrowed P1M from you and I promise to pay you
on April 2014. But when you demanded I didnt pay you. I
violated your right as a creditor to be paid. You now have a
cause of action. Can go to court. Civ pro now starts to operate.
Same example. I promised to pay you my debt on April 2014
and on that day until now I didnt pay. You went to court to
sue me. You have no cause of action as there was no demand.
Art. 1169, NCC, no delay if no demand. All substantive laws
are related to remedial law.
You do not need a violation of a right in some special civil
actions. But you need a violation of a right in ordinary civil
actions. Example. Warehouseman. A claims to be the owner.
B also claims to be the owner. W is now confronted by 2
conflicting claim of ownerships. If W deliver the goods to A,
B would sue W. W is not a court. So W goes to court and
throw the problem to the court for it to decide. Interpleader.
Someone did not violate Ws right. W went to court not
because his right is violated but rather to settle the confusion
of the claim of ownership.
Expropriation. I didnt violate the right of the government. It
is the government taking my property.
ROC is very clear. Only in ordinary action where cause of
action is mandatory.
Filing of the Complaint:
Prepare the Complaint: Rule 2,4,3,6,7,8
Rule 1.
Jurisdiction over subject matter is not procedural. Not a part of
rules of court. It is a substantive law.
What are the EFFECTS OF THE FILING OF
COMPLAINT on jurisdiction over the parties?
1. The court acquires jurisdiction over the plaintiff not the
defendant.
accounting plus damages through his lawyers. Defendant filed
an MTD on the ground for lack of jurisdiction as the plaintiff
did not personally come to the Phil.
Answer: 1.1. MTD is denied.
1.2. Rule. Personal filing and
coming to the Phil is not a requisite
for jurisdiction. When the
complaint is filed, the court
acquires jurisdiction over the
person of the plaintiff.
2. On the issue of prescription in your civil code. The cause of
action will no longer prescribe because the complaint is filed
in court. Art. 1155, NCC.
The prescription of actions is interrupted when they are filed
before the court.
Rule 14
Summons
When the complaint is filed and lawful feels are paid.
Clerk of court issues the summons not the court. Summons tell
the defendant to appear and file his answer. Even if the
summons tell you to file an answer, the Answer is not the first
option of the defendant. Defendant may read the complaint
and say that there are allegations that are hazy, thus it is
possible to file a motion for bill of particulars, Rule 12.
Rule 12
Bill of Particulars
To clarify the allegations of the complaint. Needs detail. You
dont file this to ask for evidence but just to ask for details in
the complaint. The purpose of this is to enable you to prepare
a responsive pleading.
Rule 16
Motion to Dismiss
Now, it is possible that since the complaint is now clarified
that the defects thereof are also clear, thus you can file a
motion to dismiss.
Rule 10
Amendment
If you were the plaintiff and there was a motion to dismiss,
what is your possible move? Amend your complaint. MTD is
not a pleading, it is only a motion. So, you can still amend the
pleading as a matter of right. But if there is already an answer,
it is no longer a matter of right, so you need a leave of court.
Rule 17
Dismissal of Actions
A plaintiff can still dismiss his own complaint.
Rule 6
Answer
A responsive pleading to the complaint.
Possibilities:
No answer: Sec. 3, Rule 9. Declare in default.
 Dean Rianos Lecture 2014 2

An answer but there are no specific denials: effect is Our Rules do not logically arrange these topics. So lets
all are admissions: NO ISSUE AT ALL: Judgment rearrange these.
on the Pleadings, Rule 34.
An answer and the only issue NOT A GENUINE BEFORE JUDGMENT BECOMES EXECUTORY (within
ISSUE (ex. He admitted he was negligent but denied the period for appeal)
liability on the amount of damages and not the Motion for Reconsideration, R37
existence of damages): Summary Judgment, Rule 35. Motion for New Trial, R37
Appeal- R 40, 41, 42, 43, 45
Can file a claim against plaintiff: An Answer with
Counterclaim. AFTER JUDGMENT BECOMES EXECUTORY (after the
- It actually involves 2 pleadings: an answer and a period of appeal has lapsed)
counterclaim Annulment of Judgment- R47
- The kinds of counterclaim: Petition for Relief- R38
Compulsory Certiorari R65
Permissive
Rule 39
Counterclaim D v. P Execution and Satisfaction of Judgments

Cross-claim- D1 v. D2 PROVISIONAL REMEDIES

Temporary reliefs during the pendency of action and before
Third Party Claim D v. 3rdy. Needs a leave of court. A 3rdy the judgment is executed.
is not yet a party to the case so you need the permission of the
court to include him. SPECIAL CIVIL ACTIONS
Certiorari R. 65
Intervention to protect my legal right. Needs leave of court.
Rule 19. Now to the nitty gritty...

Reply plaintiff wants to reply to the answer. Not mandatory. JURISDICTION

Even without this, all allegations in the answer are deemed -The court has jurisdiction, not the judge.
denied. - Jurisdiction is not the court. It refers to the authority. A
power to hear, try and decide the case- the traditional view.
Rule 18 - Echegaray v. SOJ, 1999: another element to jurisdiction:
Pre-Trial includes the power to execute the decisions.
- can even use the modes of discovery - in CivPro, there are several aspects of jurisdictions:
> subject matter a substantive law. It is found now
- if no amicable settlement, go to Trial
in Judiciary Reorganization Act of 1980 (BP129), as amended
by RA 7691. It is conferred by law. It is determined by the
Rule 30
allegations of the complaint.
Trial
> parties: plaintiff and defendant. Procedural. Implied
Normally, plaintiff presents the evidence first. But it is
in Summons
possible to have reverse trial in civil case.
> issues- Procedural. Implied in Rule 10.
> res Procedural. Implied also in Summons
Can file demurrer to evidence, Rule 33. It is actually a motion
to dismiss but with another name in order to avoid confusion
- in CrimPro,
with Rule 16. A motion to dismiss is filed even before an
> subject matter: offense charged
Answer is served but a Demurrer to evidence is filed after the
> person of the accused
plaintiff rests his case, meaning he is done with the
> territory - equivalent to venue in civil case. But in civil case,
presentation of his evidence.
venue is just purely venue. But in criminal case, venue is
jurisdiction.
Rule 33
Demurrer to Evidence
In the civil case, venue is not jurisdiction. But in the criminal
That plaintiff has not proven anything. He is not entitled to the
case, venue is jurisdiction.
relief sought for.
MTD in Civil Case ground: improper venue
Rule 36
MTQ in Crim Case ground: lack of jurisdiction
Judgment
Consequences of the principle that jurisdiction of the subject
Remedies against the Judgment.
matter is conferred by law:
Post-Judgment Remedies.
- Jurisdiction over subject matter cannot be waived.
Remedies of a Losing party.
- Cannot be the subject of the stipulation between the
parties

Ex. Suppose the parties and the court believed that the case is
within the jurisdiction of the RTC even though technically it
should have been under jurisdiction of the MTC, will the
exercise of the jurisdiction by the RTC because of good faith
validate the judgment of the court that was subsequently
rendered? No! Because the judgment was rendered without the
jurisdiction. Jurisdiction cannot be conferred by good faith or
honest belief. Good faith and honest belief are not laws and
jurisdiction is conferred by law.
But if you already know that the court has no jurisdiction but
you still participated in the trial despite of such knowledge.
And when you were about to lose the case, only then you
questioned the jurisdiction, you may be stopped in questioning
the jurisdiction. This will only come in the following
circumstances:
- Previous knowledge that the court has no jurisdiction
- Did not question the jurisdiction
- Actively and fully participated in the proceedings
- When about to lose, only then that you questioned the
jurisdiction
Tijam v. Sibonghanoy: you are not allowed to gamble with the
results of the litigation.
What is the implication of the rule that jurisdiction is
determined by the allegations of the complaint?
- Do not look at the title of the case given by the plaintiff.
Look instead at the material allegations of the complaint.
- Barazona v. RTC of Baguio.
- if demand to vacate and pay= unlawful detainer
- Vacate or pay= collection of sum of money
- Vacate or comply with the conditions of the lease = not
unlawful detainer but an action for specific performance
- Vacate and comply with the conditions of the lease =
unlawful detainer
SPECIFICS of JURISDICTION
Jurisdiction of RTC and MTC
Sec. 33 of BP 129, as amended
"Sec. 33.Jurisdiction of Metropolitan Trial Courts,
Municipal Trial Courts and Municipal Circuit Trial Courts
in Civil Cases. Metropolitan Trial Courts, Municipal Trial
Courts, and Municipal Circuit Trial Courts shall exercise: cdt
"(1)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 hundred
thousand pesos (P200,000.00), exclusive of interest,
damages of whatever kind, attorney's fees, litigation
expenses, and costs, the amount of which must be
specifically alleged: Provided, That interest, damages
of whatever kind, attorney's fees, litigation expenses,
Dean Rianos Lecture 2014 3
and costs shall be included in the determination of the
filing fees: Provided, further, That where there are
several claims or causes of actions between the same
or different parties, embodied in the same complaint,
the amount of the demand shall be the totality of the
claims in all the causes of action, irrespective of
whether the causes of action arose out of the same or
different transactions;
"(2)Exclusive original jurisdiction over cases of
forcible entry and unlawful detainer: Provided, That
when, in such cases, the defendant raises the
questions of ownership in his pleadings and the
question of possession cannot be resolved without
deciding the issue of ownership, the issue of
ownership shall be resolved only to determine the
issue of possession; and
"(3)Exclusive original jurisdiction in all civil actions
which involve title to, or possession of, real property,
or any interest therein where the assessed value of the
property or interest therein does not exceed Twenty
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 in cases
of land not declared for taxation purposes, the value
of such property shall be determined by the assessed
value of the adjacent lots." REPUBLIC ACT NO.
7691 [1994])
Sec. 19 of BP 129, as amended
"Sec. 19.Jurisdiction in civil cases. Regional Trial Courts
shall exercise exclusive original jurisdiction.
"(1)In all civil actions in which the subject of the
litigation is incapable of pecuniary estimation;
"(2)In all civil actions which involve the title to, or
possession of, real property, or any interest therein,
where the assessed value of the property involved
exceeds Twenty thousand pesos (P20,000,00) or for
civil actions in Metro Manila, where such value
exceeds Fifty thousand pesos (P50,000.00) except
actions for forcible entry into and unlawful detainer
of lands or buildings, original jurisdiction over which
is conferred upon the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial
Courts;
"(3)In all actions in admiralty and maritime
jurisdiction where the demand or claim exceeds One
hundred thousand pesos (P100,000.00) or, in Metro
Manila, where such demand or claim exceeds Two
hundred thousand pesos (P200,000.00);
"(4)In all matters of probate, both testate and
intestate, where the gross value of the estate exceeds
One hundred thousand pesos (P100,000.00) or, in
probate matters in Metro Manila, where such gross
value exceeds Two Hundred thousand pesos
(P200,000.00);

"(5)In all actions involving the contract of marriage
and marital relations;
"(6)In all cases not within the exclusive jurisdiction
of any court, tribunal, person or body exercising
judicial or quasi-judicial functions;
"(7)In all civil actions and special proceedings falling
within the exclusive original jurisdiction of a Juvenile
and Domestic Relations Court and of the Court of
Agrarian Relations as now provided by law; and
"(8)In all other cases in which the demand, exclusive
of interest, damages of whatever kind, attorney's fees,
litigation expenses, and costs or the value of the
property in controversy exceeds One hundred
thousand pesos (P100,000.00) or, in such other cases
in Metro Manila, where the demand exclusive of the
abovementioned items exceeds Two Hundred
thousand pesos (P200,000.00)."
||| (Expanding the Jurisdiction of the MeTCs, MTCs and
MCTCs, REPUBLIC ACT NO. 7691 [1994])
RA 7691, Section 5.After five (5) years from the
effectivity of this Act, the jurisdictional amounts
mentioned in Sec. 19(3), (4), and (8); and Sec. 33(1)
of Batas Pambansa Blg. 129 as amended by this Act,
shall be adjusted to Two hundred thousand pesos
(P200,000.00). Five (5) years thereafter, such
jurisdictional amounts shall be adjusted further to
Three hundred thousand pesos
(P300,000.00): Provided, however, That in the case
of Metro Manila, the abovementioned jurisdictional
amounts shall be adjusted after five (5) years from
the effectivity of this Act to Four hundred thousand
pesos (P400,000.00).
Look at the jurisdictional amount
Divide the country in two parts:
Metro Manila-P400K
Outside Metro Manila P300K
Beyond these amount- RTC
Exactly these amount MTC
But in computing those amount, there are numbers which are
not supposed to include: damages of whatever kind, interests
that have not yet accrued, attorneys fees, litigation expenses
and costs. (DIALiC)
Only the main claim!
The rule that damages must not be included in determining
jurisdiction applies only when damages is not the main claim.
Since the MTC can handle probate cases depending on the
gross value of the estate, that is a special proceeding, is there
any other spec pro which an MTC can handle? Yes. Special
Jurisdiction of MTC Special proceeding of writ of habeas
corpus- not a regular jurisdiction of MTC. Sec. 55 BP129, as
amended. Only when the RTC judges are all absent. As long
Dean Rianos Lecture 2014 4
as there is an RTC judge present, the MTC cannot handle that
case.
Normally which court has jurisdiction over land registration or
cadastral cases? RTC. MTC if delegated by SC. Delegated
jurisdiction. Sec. 34 BP129, as amended.
Which court has an exclusive original jurisdiction over
Forcible Entry or Unlawful Detainer? MTC
If an unlawful detainer case was filed in MTC and defendant
invoked the defense of ownership, will that defense divest the
jurisdiction? No. The court can determine (provisionally) the
ownership but only to determine the extent of possession.
Can the MTC handle a petition for a writ of Amparo? Writ of
Habeas Data? Never. Though they are special proceedings
February 19, 2013: SC affirmed na they are spec pro. De Lima
v. Magtanggol Magdulap.
The most controversial aspect is the real action. They
continued to be debated because many of the judges are the
products of the old school concept of jurisdiction. Title to,
possession of or any interest in real property. Sec. 33, BP129
#3.
"(3)Exclusive original jurisdiction in all civil actions which
involve title to, or possession of, real property, or any interest
therein where the assessed value of the property or interest
therein does not exceed Twenty 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 in cases of land
not declared for taxation purposes, the value of such property
shall be determined by the assessed value of the adjacent
lots." cd i||| (REPUBLIC ACT NO. 7691 [1994])
Sec. 19, #2. "(2)In all civil actions which involve the title to,
or possession of, real property, or any interest therein, where
the assessed value of the property involved exceeds Twenty
thousand pesos (P20,000,00) or for civil actions in Metro
Manila, where such value exceeds Fifty thousand pesos
(P50,000.00) except actions for forcible entry into and
unlawful detainer of lands or buildings, original jurisdiction
over which is conferred upon the Metropolitan Trial Courts,
Municipal Trial Courts, and Municipal Circuit Trial
Courts;||| (REPUBLIC ACT NO. 7691 [1994])
So real property: assessed value, except Unlawful detainer,
forcible entry.
TRANSCRIPT 2
c.f. Valeriano Poncia v. Sps Lomocso 540 scra 1
Accion publiciana
Accion reivindicatoria
Partition of real property
Foreclosure of REM
Cancellation of title to real property
Reconveyance of title to real property
Quieting of title

Some of those real actions are also actions incapable of
pecuniary estimation which are cognizable by RTC. But if the
actions are incapable of pecuniary estimation and at the
same time a real action, look at the assessed value.
Cancellation of title to real property, involves an interest in
real property, thus a real action. But the issue is, do you have a
right to cancel the real property incapable of pecuniary
estimation. So, must look at the assessed value.
Look then at the material allegations of the complaint to
determine the real and primary purpose of the action. Am I
going to use the doctrine on incapable of pecuniary
estimation? Or am I going to use the doctrine on real actions?
So if the topic is specific performance, do not immediately
answer incapable of pecuniary estimation, thus RTC. Look at
the way the problem has been phrased! The nature of the cause
of action and jurisdiction is again determined by the material
allegations of the complaint!
Example: 1. I offered to sell a parcel of land to you. You
accepted it. Price is P10M. You paid me. I told you, you can
now occupy the l and. So you built a mansion on the land. But
the sale is oral, no written document. Is the sale valid? Yes.
Art. 1319. Meeting of the minds: offer is certain, acceptance is
absolute.
Art.1475
So the buyer went to the RD to register the land. But the RD
refused to register without the deed of absolute sale. Now the
seller wont execute the deed. So the buyer would file a case
an action to compel the seller a notarized deed of sale. An
action for specific performance. Are you going to look at the
assessed value of the land or are you going to the RTC
because it is incapable of pecuniary estimation? RTC! Your
purpose is only to get a notarized deed of sale and not to
acquire ownership. You already are the owner, the land was
already delivered to you. You are not filing an action for
specific performance to acquire ownership, instead it was to
get the notarized deed of sale. That document did not give you
ownership. There was already a delivery. It is the delivery of
the subject matter of the sale that brings ownership.
2. I offered to sell a parcel of land to you. You accepted it.
You paid me. But I told you, you cannot occupy the land
until after 6 months. Hence there was payment, meeting
of the minds but there is no delivery yet. So the buyer is
not yet the owner of the land. Payment and sale are not
modes of acquiring ownership. It is the delivery as a
consequence to the sale that makes one an owner. So after
6 months still I did not give to you the land. So you filed
an action for specific performance to compel me to
execute a notarized deed of sale. The purpose here is to
acquire ownership because there was yet no delivery. So
the execution of notarized deed of sale is equivalent to
delivery. Art. 1498, NCC. So this is a real action; the
purpose of acquiring ownership.
Dean Rianos Lecture 2014 5
Look at the facts of the case! Specific performance is not de-
kahon!
Accion publiciana is to be treated differently from UD/FE.
Although all of them involved possession of real property. The
only problem is UD/FE are actions cognizable by MTC
always. But AP is cognizable either by MTC or RTC
depending upon the assessed value and the location of the
property. When is an action to recover possession real
property an accion publiciana. Short story: an UD/FE are
actions that have to be filed within 1 year from the accrual of
action. If you were dislodged of the possession by force,
intimidation, stealth, strategy, - FE
One year from last demand to vacate UD
If lagpas one year- AP na a delayed action for UD/FE
AP is not a summary proceeding. It is an ordinary civil action.
FE/UD falls under summary procedure.
An instance when an action to recover real property is an
accion publiciana aside from the fact that is filed more than
one year from the accrual of the cause of action is when the
complaint does not allege how the defendant took possession
of the property; consider it as an accion publiciana.
If the allegations of the complaint state clearly the occupancy
by the defendant was legal at the beginning but because he did
not pay the rentals or violated the conditions and demand to
vacate was made and he did not vacate, unlawful detainer. The
possession was legal but became illegal later.
If he entered the property by force, intimidation, it is forcible
entry. The possession is illegal from the beginning.
Suppose there are no allegations that would point as to
whether it is forcible entry or unlawful detainer, and you are
recovering possession of real property, that is considered as
accion publiciana. The issue is only possession.
If the ownership is the issue; You are recovering possession
because you are the owner, that is already accion
reivindicatoria. Look at the assessed value.
Removal of the cloud on the title, Quieting of title . They are
real actions and at the same time incapable of pecuniary
estimation. Look at the assessed value.
Quinagoran v. CA- accion publiciana
August 24, 2007.
The doctrine on which the RTC anchored its denial of
petitioner's Motion to Dismiss, as affirmed by the CA that
all cases of recovery of possession or accion publiciana lies
with the regional trial courts regardless of the value of the
property no longer holds true. As things now stand, a
distinction must be made between those properties the
assessed value of which is below P20,000.00, if outside Metro
Manila; and P50,000.00, if within. ||| (Quinagoran v. Court of
Appeals, G.R. No. 155179, August 24, 2007)
Heirs Valeriano case December 12, 2007
In a number of cases, we have held that actions for
reconveyance of or for cancellation of title to or to quiet

title over real property are actions that fall under the
classification of cases that involve "title to, or possession of,
real property, or any interest therein."
The original text of Section 19 (2) of B.P. 129 as well as its
forerunner, Section 44 (b) of R.A. 296, 47 as amended, gave
the RTCs (formerly courts of first instance) exclusive original
jurisdiction "[i]n all civil actions which involve the title to,
or possession of, real property, or any interest
therein,except actions for forcible entry into and unlawful
detainer of lands or buildings, original jurisdiction over which
is conferred upon Metropolitan Trial Courts, [MTCs], and
Municipal Circuit Trial Courts (conferred upon the city and
municipal courts under R.A. 296, as amended)." Thus, under
the old law, there was no substantial effect on jurisdiction
whether a case is one, the subject matter of which was
incapable of pecuniary estimation, under Section 19 (1)
of B.P. 129 or one involving title to property under Section 19
(2). The distinction between the two classes became crucial
with the amendment introduced by R.A. No. 7691 48 in 1994
which expanded the exclusive original jurisdiction of the first
level courts to include "all civil actions which involve title to,
or possession of, real property, or any interest therein where
the assessed value of the property or interest therein does
not exceed Twenty 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." Thus, under the present law,
original jurisdiction over cases the subject matter of which
involves "title to, possession of, real property or any interest
therein" under Section 19 (2) of B.P. 129is divided between
the first and second level courts, with the assessed value of the
real property involved as the benchmark. This amendment was
introduced to "unclog the overloaded dockets of the RTCs
which would result in the speedier administration of justice."
||| (Heirs of Concha, Sr. v. Spouses Lumocso, G.R. No.
158121, December 12, 2007)
Real action- involves title to, possession of or any interest to
real property
Specific performance (incapable of pecuniary estimation)
(main action) AND P100,000 damages (MTC) (incidental)=
RTC.
Specific performance OR P100,000 damages = MTC,
Look at the amount of the damage, because it is in the
alternative.
The jurisdiction of the respective courts is
determined by the value of the demand and not the value
of the transaction out of which thedemand arose; that is
what the law says in unmistakable terms. The alternative
prayer for specific performance is also of the same value,
for, as said above, the alternative prayers would not have
been made in the complaint if one was more valuable than
the other; hence, the specific performancealternatively
prayed for, is capable of pecuniary estimation at P644.31
(sec. 88, par. 2, Rep. Act No. 296).
Dean Rianos Lecture 2014 6
In view of the foregoing, it is declared that the
respondent Judge of the Court of First Instance of Rizal is
without jurisdiction to try the case referred to, and he is
ordered to stop further proceedings by dismissing the
case.
||| (Cruz v. Tan, G.R. No. L-3448, November 27, 1950)
Action for interpleader: if the object of the interpleader is
personal property or movable property like goods, look at the
value of the property. If you are in Metro Manila, P400,000.
Outside it is P300,000. That is if personal property
If the object of the interpleader is a real property, look at the
assessed value because it is a real property, Manila P50,000.
Outside, P20,000
If the object is a performance of the service, RTC, it is
incapable of pecuniary estimation.
Petition for declaratory relief- RTC, incapable of pecuniary
estimation.
RULE 63
Declaratory Relief and Similar Remedies
SECTION 1. Who may file petition. 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 any other governmental regulation
may, before breach or violation thereof, bring an action in the
appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a
declaration of his rights or duties, thereunder.
An action for the reformation of an instrument, to quiet title to
real property or remove clouds therefrom, or to consolidate
ownership under Article 1607 of the Civil Code, may be
brought under this Rule. (1a, R64) (As amended by
Resolution of the Supreme Court, Feb. 17, 1998)
||| (Rules of Court [1997])
- An action for reformation of an instrument, quieting of
title, removal of clouds, consolidation of ownership
RTC, incapable of pecuniary estimation.
- You are not filing an action to reform a contract. It is to
reform an INSTRUMENT!
- If the contract itself is defective, you just enter a new
contract. It is not defined as a document nor an
instrument. It is the meeting of the mind.
In consolidation of ownership, do not look at the assessed
value because you file it not to acquire ownership as you are
already the owner but instead you file it so that your
consolidation of ownership will be registered. There can be no
registration without a court order. Local Sales: two kinds of
redemption: Legal redemption, Conventional redemption.
Lets say I sold to you a house and lot subject to redemption.
Within the period for redemption I was not able to redeem.
What happens? Consolidation of ownership upon the buyer.
So the ownership is acquired by the buyer by operation of law

by failure of the seller to redeem. But that consolidation of
ownership needs a court order for it to be registered.
Art. 1607, NCC. In case of real property, the consolidation of
ownership in the vendee by virtue of the failure of the vendor
to comply with the provisions of article 1616 shall not be
recorded in the Registry of Property without a judicial order,
after the vendor has been duly heard. (n)
- The failure to redeem already has the effect of
consolidation of ownership. But it shall not be recorded
in the Registry of Property without judicial order.
Which court has jurisdiction over the judgments of
COMELEC and COA?
- SC. Rule 64.
- There is NO MODE OF APPEAL! Be very careful on
this. You dont go to SC from the COMELEC or COA in
order to appeal. SC has no jurisdiction over appellate
procedures from COMELEC and COA. You go to the
SC in a petition for certiorari under Rule 65 which is not
a mode of appeal. It is an independent original special
civil action. IT IS NOT AN APPEAL! It is a mode of
Review. There are 2 modes of review:
1) Appeal 2.)Certiorari, Rule 65
Certiorari under Rule 64 is only directed to the COA and
COMELEC. Rule 65 in Rule 64 is mestizo Rule 65. The pure
and true Rule 65 is the certiorari in Rule 65. The certiorari in
Rule 65 is to be filed within 60 days from notice of judgment
or final order. But the Rule 65 in Rule 64 is to be filed in 30
days. Rule 65 in Rule 64 is only for COMELEC and COA.
Rule 65 in Rule 65 is for all other tribunal, board or officer
exercising judicial or quasi-judicial functions.
Where can you file the Rule 65 petition in Rule 65? RTC, CA,
Sandiganbayan, SC
Rule 65 under Rule 64? Only SC
Lets go to Rule 65 the 3 special civil actions:
Certiorari, Prohibition, Mandamus
- Can be filed in any court except for Certiorari where the
lowest court that it can be filed is RTC
- When you file petition for certiorari under R65, you are
not appealing. You are not talking about the merits of the
case. You are concentrating on the fact that the lower
tribunal has committed acts amounting to lack of
jurisdiction. It acted without jurisdiction or with grave
abuse of discretion or in excess of jurisdiction amounting
to lack of jurisdiction. The issue is JURISDICTIONAL.
The petition for certiorari Rule 65 might have its roots in
the case below. But it is not about whether the court
committed errors in the appreciation of the facts and
evidence. But it is the grave abuse of discretion. When
you file certiorari under Rule 65 is like filing a new
action.
- Ex. I filed a petition for certiorari in the CA against the
grave abuse of discretion of the RTC. I lost in the CA.
What is the remedy against the CA? Appeal. Because it
is like filing a new case. Ang decision sa certiorari hindi
mo cinecertiorari. Ang decision sa certiorari ina-appeal
Dean Rianos Lecture 2014 7
mo dahil ang petition ng certiorari ay para kang nag-file
ng original na kaso na kapag natalo ka mag-aapeal ka.
- Ang mode of appeal ay ang Rule 45. Rule 65 hindi mode
of appeal!
- San mo fina-file ang Rule 45, SC lang. ;)
- The filing of the petition for certiorari in CA does not
have the effect of interrupting the course of the principal
case in the RTC. The RTC judge has the obligation to
proceed with the case in the RTC within 10 days from
filing the petition for certiorari. To stop the proceedings
below, you have to get a writ of preliminary injunction or
a TRO.
- SC has observed that whenever a counsel does not agree
with the court the counsel always file a petition for
certiorari against the court and this delays the
proceedings below. Because if you file a case for petition
for certiorari in the CA against the RTC, the old practice
was that the RTC will not continue with the case on the
ground of judicial courtesy that there is a pending
certiorari against them. So it will stop the case below.
Justice is delayed. That judicial courtesy is no longer
allowed. Lower court should proceed with the case
unless it is prevented from doing so through a writ of
preliminary injunction or TRO. If the judge does not
continue with the case and there is no injunction or TRO,
he will be subjected to disciplinary action.
- Sec. 7, Rule 65 is a five-star provision.
SECTION 7. Expediting Proceedings; 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, enjoining the
public respondent from further proceeding with the case.
The public respondent shall proceed with the principal case
within ten (10) days from the filing of a petition
for certiorari with a higher court or tribunal, absent a
temporary restraining order or a 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.
- ||| (Amendments to Rules 41, 45, 58 and 65 of the Rules of
Court, A.M. No. 07-7-12-SC [2007])
- This is a potential question for an essay problem. This
has far-reaching significance!
- Problem: <P, plaintiff: D, defendant> suppose, D noticed
a defect in the allegations. So D filed an MTD for failure
to state a cause of action. Denied. D filed an MR.
Alleging grave abuse of discretion, D filed R65 for
certiorari before CA against RTC. P filed a motion to
declare D in default for failure to file an answer within
the period. RTC granted the default. Is the RTC wrong
when it declared D in default? No. The filing of the
petition for certiorari does not interrupt the period for
filing the answer absent TRO or prelim injunction, thus
default.

- How can you prevent the court from making the
declaration of default? Ask for the issuance of TRO and
writ of preliminary injunction.
Where do you file expropriation proceeding under Rule 67?
RTC. Always incapable of pecuniary estimation even if the
object is a real property. The issue in this case is, does the
government agency has the right to expropriate the property.
The issue as to the right is incapable of pecuniary estimation.
Where do you file for the foreclosure of the REM? Look at the
assessed value. Rule 68.
Where do you file the partition of real property under Rule 69?
Look at the assessed value. A partition of real property
involves an interest of real property and it requires
determination of the assessed value.
Where do you file Rule 70, forcible entry/unlawful detainer?
MTC
Where do you file a petition for indirect contempt? In the
court which is the object of the contempt. But if the object is
the MTC, you can file it either in RTC or MTC itself. Ang
finafilan ng action is indirect contempt. Ang direct contempt
walang action2x, right there and then you can be declared
direct contempt. Ang indirect contempt may action pa yan.
Pag inaway ka ng misis mo, at inuntok ka ng misis mo, anong
court ang may jurisdiction? Wala, hospital ka muna! @.@
JURISDICTION OVER THE PARTIES
-basically there are 2 parties: plaintiff and defendant
How does the court acquire jurisdiction over the plaintiff? By
filing complaint
How does the court acquire jurisdiction over the defendant?
By serving summons or voluntary submission
When the issue is jurisdiction over the defendant, not all cases
require jurisdiction over defendant. Why? Because there are
some civil cases without defendant. And even if there is a
named defendant, it is not a true defendant but only a nominal
defendant. You only acquire jurisdiction over the defendant
when it is a true defendant that is in an action in personam.
Example. I filed a land registration case, cognizable by RTC
(generally unless delegated to MTC). There is no defendant.
The object of the action is the property. The res. Jurisdiction
over the res. Land registration case is an action in rem.
I filed a probate proceeding for allowance of the will. What is
the object? The will. I am not filing it against a particular
defendant. So no need of jurisdiction over defendant because
there is no defendant. Probate proceeding is an action in rem.
On the other hand, there are actions where there are named
defendants but they are only nominal defendants because you
cannot proceed with the case without naming the person.
Ex. Elen and Pedro are couple. Pedro filed an action for
annulment of marriage against Elen because of force and
intimidation against the former. Is there a defendant named?
Yes. Elen but only a nominal defendant. The action is directed
against the relationship. The relationship involves the status as
Dean Rianos Lecture 2014 8
a married person. It is not an action in personam. But an action
in rem. Pedro cannot file an action for annulment without
mentioning that he is married so he must mention the person
to whom he is married.
When an action is in rem or quasi-in rem, jurisdiction over the
defendant is not required. What is required is jurisdiction over
the res. The res is the property or the status of the plaintiff.
You only need a jurisdiction over the person of the defendant
in an action in personam. It is in action in personam where
there is a true defendant where you want him to be liable, to
perform an act in your favour.
An action to declare my filiation is an action in rem, it is about
my status. But when I file an action against this lady to
recognize me as her natural child, the action is directed to her
for her to recognize me. It is not an action against the whole
world dahil hindi ako anak ng mundo! Anak lang ako nya. I-
recognize mo ako! That is an action in personam. But an
action to declare mere filiation is an action in rem.
Kung si armi ay nangutang sakin ng P1M at ayaw nyang
magbayad and when I demanded money binatukan nya ako ng
singkamas then I sue her for collection of sum of money. The
court needs to acquire jurisdiction over her. That is an action
in personam.
Si Elen ay nagdadrive ng kotse na pakantakanta pa with
feelings and closed her eyes. I crossed the street. She hit me
but I survived and I want to sue her for damages. An action in
personam. The court needs jurisdiction over her person.
If X is renting my apartment and he does not pay the rentals
and I want him to vacate the premises. I will file unlawful
detainer. It is an action in personam. A recovery of property
from the person possessing it is an action in personam (accion
publiciana, unlawful detainer, forcible entry, replevin).
Quasi in rem. No need jurisdiction over the person of the
defendant but only over the res. Action for accounting.
Attachment proceedings. Partition of real property.
Foreclosure of REM.
In personam, the court needs jurisdiction over the person.
Action for a sum of money. Action for damages, UD/FE,
accion publiciana, accion reivindicatoria.
JURISDICTION OVER THE ISSUES
How do you know the issues of the civil case? Look at the
pleadings of the parties. The complaint as material allegations.
If the material allegations are not specifically denied, no
issues. They are deemed admissions.
Rule 8, SECTION 11. Allegations Not Specifically Denied
Deemed Admitted. Material averment in the complaint,
other than those as to the amount of unliquidated damages,
shall be deemed admitted when not specifically denied.
Allegations of usury in a complaint to recover usurious
interest are deemed admitted if not denied under oath. (1a, R9)
An issue arises when the party specifically denies a material
allegation. For example,

Allegations:
1. The complaint says that D borrowed P5M from P. D did not
deny that particular allegation. There is an admission. So no
more issue as to WON there is debt coz theres no specific
denial. There is no issue.
2. That the debt is already due. There was no specific denial
that the debt is due. So there is no issue as to whether the
debt is already due.
3. There was a demand of the duty to pay. There was no
specific denial. The demand was not denied. It is
admitted. Due date is not denied. It is admitted. Existence
of the debt is admitted.
4. Despite demand he did not pay, no its not true coz I paid.
The issue is whether or not there was payment.
That is how an issue arises.
Because if he admits that there was no payment despite
demand, plaintiff may simply file a motion for judgment on
the pleadings which presupposes that there is no issue at all.
Summary judgment presupposes a non-genuine issue.
Now, issues in the case can also arise because of the
stipulation of the parties during the pre-trial. What do you
mean when you say that the court has jurisdiction over the
issues? That simply means that if the parties are quarrelling
over P5M, the issue in the pleadings, the court has no
jurisdiction to render judgment for P10M because that P10M
is not the issue of the case. The issue is only P5M. When the
issue on the case is only ownership as found in the pleadings,
the court can only render judgment as to ownership but cannot
render judgment as to possession where possession is not the
issue of the case because ownership is not possession and
possession is not ownership. They are different concepts.
But even if a matter is not an issue in the pleading but that is
tried in the case with the consent of the other party because
there was no objection, that matter which is not an issue in the
case is considered to have become an issue on the case as if
found in the pleadings because they were tried with the
consent of the parties.
Rule 10, SECTION 5. Amendment to Conform to or Authorize
Presentation of Evidence. 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. (5a)
Dean Rianos Lecture 2014 9
Illustration: I sued X for P5K. While I was presenting my
evidence, it was shown that he owes me P7K. You are the
counsel of the other party what is your move? Objection your
honor, the P7K is irrelevant as the pleadings only talked about
P5K. What will the court say? Sustain. The P7K is not in the
pleadings. The evidence must prove up to the extent of P5K
because that is in the pleadings. Now, suppose you do not
object to the P7K, it is as if the pleadings were talking about
P7K not P5K because you consented to it. So the court can
render judgment on it na. If segurista ka, you can move to
amend the pleadings, to conform to the evidence. But even if
you do not amend it, it doesnt matter na coz it is considered
as part of the pleadings. This is an implied amendment of the
pleadings. Failure to object.
There was an action to collect a sum of money P500K. In the
complaint, there was no allegation that he demanded payment
before filing the action. There was no objection from the other
side. During the trial, the plaintiff offered in evidence, Exhibit
A- a written demand to pay. There was no objection from the
other party. Question, is the court in error if it admits Exhibit
A? No. It was tried with the consent of the other party. There
was no objection. An implied amendment of the pleading to
include the demand even if it was not included in the pleading.
It is not enough to know about jurisdiction. You must also
know about where the court sits. About the geographical
location. VENUE.
There are many MTCs but which MTCs? The one in
Mandaue? Lapu2x? Cebu City? Venue in the civil case is only
venue.
Venue in criminal case is jurisdictional
When the venue in the civil case is erroneous, the ground for
the MTD is improper venue.
When the venue in the criminal case is erroneous, the ground
for the MTQ is lack of jurisdiction.
There is a shortcut to determine venue. Is the action a personal
action or is it a real action? That is the first thing that should
come to your mind.
The rules do not define the personal actions. It only defines
real actions. Those not falling under real actions are personal
actions.
Real Actions. Actions affecting title to or possession of real
property, or interest therein.
If the action is real you are going to look at where the property
or any part of it is situated. Do not consider the residences of
the parties. The plaintiff has no choice, there is only one
choice- where the real property is located.
If the action is person, ask where does the plaintiff reside?
Defendant reside? The plaintiff has the choice.

Action to collect a sum of money, plaintiff is from Quezon
City, defendant is from Makati City, amount to be collected
P350K. Which court has jurisdiction? Metropolitan Trial
Court. In what place shall the action be filed (venue)? This is a
personal action, the venue is the residence of the plaintiff,
residence of defendant at the option of the plaintiff. So the
plaintiff can file it in Quezon City or Makati City. If it is filed
in Pasay City, improper venue. Remedy is MTD on the ground
of improper venue. If denied, file first an MR. Denied, there is
now grave abuse of discretion, file with the RTC (hierarchy of
courts) a certiorari.
Change the problem. A parcel of land located in Pasay City.
The plaintiff is from Manila, defendant is from Quezon City.
The action is an accion publiciana. The venue is at Pasay City.
The court which has jurisdiction depends on the assessed
value.
If the land is located on the borderline of Pasay and
Paranaque, file the action in either place where the part of the
real property in litigation is located. You cannot file in both
places because it will amount to forum shopping.
A parcel of land located in Batangas City. Plaintiff lives in
Manila, Defendant lives in Lucena City. Accion publiciana.
Assessed value is P10K. What court has jurisdiction?MTC.
Plaintiff filed it in MTC Manila because he is from Manila.
MTC dismissed it on the ground of lack of jurisdiction.
Improper ground, it should have been improper venue. MTC
has jurisdiction over the accion publiciana where the assessed
value is P10K. The problem is venue and not jurisdiction. But
if it was filed in RTC Manila, the problem is not only venue
but also jurisdiction. In the civil case where the venue is the
defect do not include jurisdiction in your answer. Jurisdiction
has nothing to do with venue.
Car A rear-ended Car B, tinamaan sa likuran, coz the driver
was negligent. Accident happened in San Fernando,
Pampanga. A is from Manila, B is from Quezon City. The
action is reckless imprudence resulting in damage to property.
Venue? This is a criminal action, so where the offense
occurred. So it is in San Fernando, Pampanga. But it was filed
in Quezon City, ground for MTQ? Lack of jurisdiction. No
criminal case filed, instead an action for damages was filed
based on quasi-delict. Venue? Either Manila or Quezon at the
option of plaintiff. If the venue is improper because it was
filed in Pampanga, the ground for MTD is improper venue.
Watch out for stipulations of venue. Can venue be stipulated
upon? Yes, venue can be the subject of stipulation.
Jurisdiction cannot be the subject of stipulation. Venue can
even be waived by the parties if nobody objects; while
jurisdiction cannot be waived.
For a stipulation of venue to be submitted to the court,
1. It has to be a written stipulation.
Rule 4, SECTION 4. When Rule not Applicable. This Rule
shall not apply
Dean Rianos Lecture 2014 10
(a) In those cases where a specific rule or
law provides otherwise; or
(b) Where the parties have validly agreed
in writing before the filing of the
action on the exclusive venue
thereof. (3a, 5a)
An oral stipulation of venue will not bind the court. The court
may or may not disregard that stipulation.
2. The stipulation must be agreed upon before any
action is filed.
3. For the stipulation to prevail, the stipulation must be
an exclusive or restrictive stipulation because if it is
not restrictive the stipulated venue may not be
followed even by a party. Jurisprudence calls it a
permissive stipulation. If the stipulation is restrictive
or exclusive there is no other venue except the one
agreed upon. The Rules we talked about a few
minutes ago (residence if personal action, location if
real action) will no longer apply except the agreed
venue. But if the stipulation is permissive, the Rules
will still apply including the stipulated venue. To
determine whether it is restrictive or permissive, use
common sense, just look at the words
Example. The promissory note was executed by the maker. If
the maker is from QC, payee is from Manila. The agreement
was that all actions arising from the note shall be filed in
Malolos, Bulacan and in no other place. If there was no
stipulation and the payee in Manila files a case againt the
maker the venue would have been either Manila or QC at the
option of the plaintiff. But here you have such a stipulation. It
cannot be filed in Manila or QC. It is restrictive, thus it can
only be filed in Malolos, Bulacan. If in the example there was
no phrase and in no other place, it becomes permissive.
Thus the action can be filed in Manila or QC or Malolos,
Bulacan Malolos becomes then an additional venue.
The case was filed in RTC, an action for the recission for the
contract of sale of a car. P from Manila, D from QC. The
action should be filed in either Manila or QC, the car is not a
real property. But the case was filed in Makati City. So the
court on its own initiative dismissed the complaint on the
ground of improper venue. Did the court act correctly in motu
proprio in dismissing the complaint? No. No matter how
wrong the venue is, if no party complains (there is a waiver of
venue) about it, it is not for the court to take the cudgels for
the party and dismiss it motu proprio.
Is there an instance where the court can dismiss the case on
any ground including improper venue motu proprio even
without an MTD? Yes. When the case falls under summary
procedure. The most popular cases are forcible entry and
unlawful detainer.
Revised Rule on Summary Procedure, SECTION
4. Duty of Court. After the court determines that the
case falls under summary procedure, it may, from an
examination of the allegations therein and such evidence

as may be attached thereto, dismiss the case outright on
any of the grounds apparent therefrom for the dismissal of
a civil action. If no ground for dismissal is found it shall
forthwith issue summons which shall state that
the summary procedure under this Rule shall apply. d-c
The court may dismiss on any of the grounds for the dismissal
civil action even without an MTD on forcible entry and
unlawful detainer. But the general rule is that the court cannot
dismiss the case motu proprio on the ground of improper
venue.
The court can motu proprio dismiss the case on the ground of
lack of jurisdiction over the subject matter, res judicata, litis
pendentia, prescription. This does not include improper venue.
These grounds are found in Rule 9, SECTION 1. Defenses and
Objections Not Pleaded. Defenses and objections not
pleaded either in a motion to dismiss or in the answer are
deemed waived. However, when it appears from the pleadings
or the evidence on record that the court has no jurisdiction
over the subject matter, that there is another action pending
between the same parties for the same cause, or that the action
is barred by a prior judgment or by statute of limitations,
the court shall dismiss the claim. (2a)
Example: The case is in the RTC. MTD was filed for lack of
jurisdiction. The court said it had the jurisdiction because it
was an action incapable of pecuniary estimation. But the
venue was improper so the court dismissed it in its own
motion, did the court act correctly? No. It would tantamount to
motu proprio dismissal and the court cannot do that. Look, the
case was in RTC, surely it was not a summary procedure
because if it were so then it would have been filed in MTC.
The case is in the MTC, forcible entry, ground for MTD is
lack of jurisdiction. The court said it had the jurisdiction but
there was improper venue so it decided to motu prorpio
dismiss the case. The court is correct because it is a summary
procedure where the court can make a motu proprio dismissal
on any of the grounds for the dismissal of the civil actions
including improper venue.
The case is in the RTC, MTD on the ground of improper
venue. The court said that the venue is proper but the court
had no jurisdiction because the amount is P350,000 and the
place is Pasay City. So the court decided to motu proprio
dismiss the case on the ground of lack of jurisdiction even if
the MTD is anchored on improper venue. Can the court do
that? Yes. For lack of jurisdiction over the subject matter, litis
pendentia, res judicata and prescription.
For all other grounds, there must be an MTD except when the
case falls under a summary procedure.
CAUSE OF ACTIONS
It is mandatory in ordinary civil actions only ^_^
Dean Rianos Lecture 2014 11
When you have a cause of action, the rule is that you state it!
If you do not state it you are risking a dismissal of the
complaint on the ground that the complaint states no cause of
action. In relation to cause of action, the ground for dismissal
is not lack of or absence of cause of action but failure to state
the cause of action.
RULE 16, SECTION 1. Grounds. Within the time for
but before filing the answer to the complaint or pleading
asserting a claim, a motion to dismiss may be made on
any ofthe following grounds:
xxx
(g) That the pleading asserting the claim
states no cause of action;
xxx
You may have a cause of action but if you did not state that in
your complaint it could be dismissed for failure to state a
cause of action. Kunyari, ang love is cause of action. Mahal na
mahal ko sya. Head over heels. Sa pagmamahal ko sa kanya
bumabalentong na ako. May cause of action ako sa kanya. Di
na nga ako nakakatulog sa pagmamahal ko sa kanya. But di ko
masabi na mahal ko sya, that is failure to state a cause of
action. Boom! That is a ground for dismissal.
Nangutang ako sa kanya ng P500K. The debt has been due 3
days ago. She demanded but I did not pay. She has a cause of
action against me. But once she filed a case against me the
allegations are the following: the defendant borrowed P500K;
the debt is due; until now the debt has not been paid. There is
here a failure to state a cause of action due to absence of one
element which is the demand to pay.
Do not split a single cause of action. OW, that would be
multiplication of suits. That would clog the court dockets.
How do you know that there is a splitting of cause of action?
Very difficult to explain but we can illustrate.
Complaints or causes of action normally have 2 parts. 1. Main
relief 2. The incidental relief
For example. The main relief is collection of a sum of money.
The incidental relief could be interest and/or damage. When
you file an action to collect a sum of money you have to
include a demand the payment for interest and/or damage
because they constitute a single cause of action. The splitting
of a single cause of action comes when you file a complaint
for sum of money and later on you file a separate complaint
for the recovery of interest and/or damages for the same action
for the sum of money. That cannot be done. Normally it is the
2nd suit that will be dismissed on the basis of litis pendentia. If
the main action is done and after that you sued me for P1M,
you won and recovered the P1M. But you forgot to include a
claim for interest and/or damages. So you filed an action for
that interest and/or damages. That action will be dismissed by
filing MTD on the ground of res judicata dahil tapos na yung
unang kaso. If pending both, the ground would be litis
pendentia. If the ground was res judicata or litis pendentia,
isang case lang madi-dismiss. Para ma-dismiss mo yung 2
cases ng sabay huwag mong gamitan ng res judicata or litis
pendentia, ground mo dapat forum-shopping, dismiss lahat
yan ^_^ willfull and deliberate forum shopping, summary ang

dismissal. That kind of forum shopping is a separate ground
for dismissal not found in Rule 16.
Joinder of Causes of Action
This is not bawal. It is the splitting of the cause of action that
is bawal. Ang isa huwag mong paramihin. But yung marami
pwede mong pag-isahin, thats not bawal. Example, Alex
married a widow who has a child. Dont separate that child
from his mom, bawal ang splitting. Sa Pinas, mahilig sa
joinder. Pag pinakasalan kita, pati nanay mo, tatay mo pwede
tumira satin.
This presupposes several causes of action that can be joined.
In analyzing this, we are going to make a formula for our own
consumption only. hehe. DO NOT USE THESE WORDS IN
THE BAR as the bar examiner will not understand you.
Formula 1: One on One Situation
- One plaintiff vs. One defendant
- Ex. Defendant owes the following amounts: PN: P250K,
P185K, P275K, borrowed for different reasons, separate
transactions, and all of them are already due and
demands are made for the payment but no payment was
made. How many causes of action are there? 3. How
many complaints to be filed? 3. One cause of action =
one complaint. Now, is it possible for the plaintiff to file
a single action to collect those 3 amounts represented by
3 promissory notes? Yes. If there is only one plaintiff
and one defendant, no problem even if they are totally
unrelated from each other, they can all be joined as long
as none of them is a special civil action nor governed by
special rules. If you are outside Metro Manila and you
file them separately, the MTC has jurisdiction. If you
join all of them, apply the totality rule, now the RTC has
jurisdiction.
Formula 2: Rumble Situations
- Several plaintiffs or several defendants
TRANSCRIPT 3
The clerk of court issues summons pursuant to constitutional
due process. The summons are served upon the defendant
telling him to file an answer; otherwise, the court would grant
the relief sought for. But then he tells himself; how can I file
the answer when the allegation are vague? He needs more
details so he is now going to file a motion for a bill of
particulars. So the court orders the plaintiff to file a bill of
particulars. The plaintiff followed it. Then the complaint was
made clear, the defects became patent as well. So defendant
filed an MTD. Unfortunately the court denied it. So defendant
just have to file an answer. If he doesnt file an answer, the
consequence would be that he will be in default upon motion
to declare default by the plaintiff.
Defendant filed an answer but did not make any specific
denials. The effect is that all material allegations in the
complaint have been admitted. There are no issues, no trial.
Plaintiff files a motion on the judgment of pleadings.
Defendant filed an answer but did not deny the material
allegations. He only denied the amount of interest and/or
Dean Rianos Lecture 2014 12
damages. There is an issue as to the amount of interest and/or
damages but is not a genuine issue. So plaintiff can possibly
file a motion for summary judgment.
In filing the answer, the defendant could include a claim
against the plaintiff which is called Counterclaim. Defendant
could include a claim against a co-defendant called, cross-
claim. Someone not party to the action may be brought by the
defendant to become a party to the action with leave of court
so that he will answer for the liability, thus a Third-Party
Complaint. But there is this guy who is not a party to the
action, he notices that he has a legal interest in the action, he
wants to gate crash but with the permission of the court and
that method of entering in the case is called an Intervention.
Plaintiff files a complaint, defendant files an answer, plaintiff
wants to file an answer to the answer and this is called Reply.
All the pleadings now are in court and the pleading stage is
over. Then the plaintiff files a motion to set the case for pre-
trial. Amicable settlement. Trial. Judgment. Losing party can
avail of certain remedies against the judgment.
Period for appeal: MR, MNT, Appeal
After the period of appeal: Annulment of judgment, Petition
for Relief, Certiorari.
After all remedies have been exhausted and the defendant still
lost, the plaintiff shall file a motion for execution of judgment.
Is it possible for a party to have remedies even before the case
is over? Yes. Can he get something from the court even the
court makes a final judgment? Yes. Provisional Remedies.
Sample bar problem. X is a stockholder of a corporation. He
went abroad and transferred his shares of stocks to Y a mere
trustee. For 5 years, Y was receiving the dividends. X came
back to Phil and asked Y to transfer back the shares. Y
refused. X filed a case and won. When the shares were
transferred to the name of X. X then filed a case to recover the
dividends Y had received for 5 years. Y filed an MTD on the
ground of res judicata. Is the 2nd action is barred by a prior
judgment? Yes. When he filed an action to recover his shares
he should have included in his prayer the recovery of the
dividends that accrued to those shares for the 5 years. They
constitute a single cause of action. The main action was to
recover the shares, the incidental action was to recover the
dividends accruing to those shares. They cannot be separated.
There should be no splitting of the cause of action. Failure to
include the recovery of damages barred recovery because the
first case was already over. Res judicata
REMEDIAL LAW; ACTIONS;
SPLITTING OF SINGLE CAUSE OF ACTION; INSTANT
CASE. Appellant's position that the
second action of appellee for the collection of surcharges
cannot be maintained because (1) a party may not institute
more than one suit for a single cause of action; and (2)
appellee'saction for recovery of the surcharges in question is
barred by prior judgment is essentially correct. There is no

question that appellee split up its cause ofaction when it filed
the first complaint on March 23, 1960, seeking the
recovery of only the bottling taxes or charges plus legal
interest, without mentioning in any manner the surcharges. It
cannot be denied that appellant's failure to pay the bottling
charges or taxes and the surcharges for delinquency in the
payment thereof constitutes but one
single cause of action which can be the subject of only one
complaint, under pain of either ofthem being barred if not
included in the same complaint with the other.
2. ID.; ID.; CAUSE OF ACTION DEFINED. The classical
definition of a cause of action is that it is "a delict or wrong by
which the rights of the plaintiff are violated by the defendant."
Its elements may be generally stated to be (1) a right existing
in favor of the plaintiff; (2) a corresponding obligation on the
part of the defendant to respect such right; and (3) an act or
omission of the defendant which constitutes a violation of the
plaintiff's right which defendant had the duty to respect.
3. ID.; ID.; CAUSE OF ACTION AS AN ACT
VIOLATIVE OF VARIOUS RIGHTS. In the last analysis,
a cause of action is basically an act or an omission or several
acts or omissions. A single act or omission can be
violative of various rights at the same time, as when the act
constitutes juridically a violation ofseveral separate and
distinct legal obligations.
4. ID.; ID.; ID.; EXAMPLE. For example, when a
passenger of a common carrier, such as a taxi, is injured in a
collision thereof with another vehicle due to the
negligence of the respective drivers of both vehicles. In such a
case, several rights of the passenger are violated, inter alia, (l )
the right to be safe from the negligent acts of either or both the
drivers under the law on culpa-aquiliana or quasi-delict; (2)
the right to be safe from criminal negligence of the said
drivers under the penal laws; and (3) the right to be safely
conducted to his destination under the contract of carriage and
the law covering the same, not counting anymore the
provisions of Article 33 of the Civil Code. The
violation of each of these rights is a cause of action in itself.
Hence, such a passenger has at least three
causes of action arising from the same Act.
5. ID.; ID.; SPLITTING A SINGLE CAUSE OF ACTION;
FILING OF SEPARATE COMPLAINTS FOR SEVERAL
RELIEFS COVERED. It can happen that several acts or
omissions may violate only one right, in which case, there
would be only one cause of action. Again, the violation of a
single right may give rise to more than one relief. In other
words, for a single cause of action or violation of a right, the
plaintiff may be entitled to several reliefs. It is the
filing ofseparate complaints for these several reliefs that
constitutes splitting up of the cause of action. This is what is
prohibited by the rule.
6. ID.; ID.; ID.; EFFECT OF FILING OF FIRST
COMPLAINT ON SUBSEQUENT ONES. Whenever a
plaintiff has filed more than one complaint for the same
violation of a right, the filing of the first complaint on
any of the reliefs born of the said violation constitutes a bar to
any action on any of the other possible reliefs arising from the
same violation, whether the first action is still pending, in
which event, the defense to the subsequent complaint would
Dean Rianos Lecture 2014 13
be litis pendentia, or it has already been finally terminated, in
which case, the defense would be res adjudicata. Indeed, litis
pendentia and res adjudicata, on the one hand, and splitting
up a cause of action on the other, are not separate and distinct
defenses, since either of the former is by law only the result or
effect of the latter, or, better said, the sanction for or behind it.
||| (City of Bacolod v. San Miguel Brewery, Inc., G.R. No. L-
25134, October 30, 1969)
Another example, I filed an action for unlawful detainer
against X. I won and he was ejected. 2 months after, I forgot
na he did not pay the rentals in arrear. I filed a case to recover
those rentals in arrears. It is barred! When you file an unlawful
detainer case, it should have already included the recovery of
those rentals. No splitting of cause of action is allowed.
X borrowed P10M from Y. Y required X to post a collateral.
X executed a REM in favour of Y. X did not pay, Y filed an
action to collect a sum of money and an action to foreclose the
REM. Is there a splitting a single cause of action? You cannot
file an action to foreclose REM while an action to collect a
sum of money is pending. That is a splitting a single cause of
action. The cause of action is to collect. There are two ways of
collecting: filing an action to collect a sum of money or
foreclosure of REM. You cannot do both. You can only select
one. Thats swapang! You are barred.
JOINDER
2 situations in Joinder: do not use these words in the bar exam,
this is only for our shortcut!
1. One on One Situation
D has the following debts in favour of C: P200K,
P250K, P300K. Those are ordinary civil actions,
borrowed for different purposes and from different
occasions, unrelated to each other. They can be
joined even if unrelated. 3 causes of action can be
joined in one complaint even if unrelated, because
there is one plaintiff and one defendant.
But look at this, plaintiff wants to include unlawful
detainer case. Pwede bang isali? NO. Because
unlawful detainer is covered by special rules. Pwede
ba isali ang action for partition? No. Because
partition is a special civil action. Ang pwede lang
isama ang ordinary civil actions. Pwede bang isama
ang action for rescission of contract? Yes because it
is an ordinary civil action not governed by special
rules.
Where are you going to file the case? RTC. Totality
rule. If you add them all, more than P300K/P400K.
Also, one of them is incapable of pecuniary
estimation action for rescission of contract. If one
of them is cognizable in the RTC, everything will go
to the RTC.
If there is one plaintiff and one defendant, all causes of action
(ordinary civil actions) even if unrelated can be joined. Just
dont include the special civil actions and those governed by
special rules.

2. Rumble Situation
Ex. Plaintiff v. 3 defendants- a plurality of parties.
Here are the debts: D1 borrowed P200K, D2
borrowed P250K, D3 borrowed P300K. All debts are
unrelated to each other.
How many causes of action? 3
Is it possible for P to join those causes of action?
When it is a rumble situation, they cannot be joined
as they are products of different transactions. The
only option for P is to file a separate action for each.
No joinder. In order to join them, there must be clear
showing that the causes of actions are related to each
other, bound by common occurrence, common
question of fact and/or law.
Example: a promissory note contains: We promise to pay Mr.
Torres P2M on April 2015.
T v. A = P500K
T v. B = P500K
T v. C = P500K
T v. D = P500K
There was no stipulation indicating solidarity. Obligation is
presumed to be joint. So there are four causes of action. The
debts are divided into as many debtors as to the creditors. Joint
obligation means that from the point of view from the debtor,
KKB, kanya-kanyang bayan. From the point of view of the
creditor, KKS, kanya-kanyang singil. Kapag solidary naman
ang obligation, one for all and all for one. (911 method of
studying ;))
In the case, there are 4 debts, 4 causes of action. T can file an
action against A alone but he can only recover P500K. And so
with the other debtors but only to the extent of their separate
obligations. Now, T can file a single complaint against all of
those debtors. There is joinder of causes of action because
they are joined by a single transaction when they signed a
single promissory note. ^_^
Another situation. 20 pax hired a private bus, not a common
carrier. The driver-owner of that bus sings with feelings when
he drives and closes his eyes when he hits very high notes.
They fell to a cliff. All of the passengers were injured but all
survived coz they belong to a different breed of grass -
masasamang damo. Now they want to file an action for breach
of contract against the owner-driver. How many suits could
possibly be filed? How many causes of action? 20. But they
can file a single complaint against the driver because the
plaintiffs are bound by the same accident. They can join
together under one complaint. But suppose after one day, that
same driver injured another 10 passengers, can these 10
passengers join with those first 20 passengers? No, as they are
not bound by the same accident/transaction.
We are going to rearrange your rules ^_^ there are causes of
action found under the rule on parties. An action based on a
class suit. Do you remember that stampede in the Wowowee.
72 old women died. The relatives of those Lolas asked
whether a class suit can be filed against ABS-CBN. Answer is
No.
Dean Rianos Lecture 2014 14
In 1988, M/V Dona Paz of Sulpicio Lines was shipwrecked.
The relatives want to file a class suit but it is not proper. The
Guimaras oil spill prodded the fishpond owners to file a class
suit but again it is not proper.
A class suit arises when the following elements concur:
1. when there are several and numerous persons
involved.
2. A common or general interest in the subject matter
The issue is not a common or general interest. It must refer to
the subject matter. Each person is a subject matter in itself.
10,000 victims of human rights together filed a class suit
against the estate of Marcos. Each plaintiff of the 10,000 is a
subject matter in itself. My human right is mine. I have no
interest in yours. There is no common or general interest. But
there is a common interest on the issues on the case. True. But
the definition is on the subject matter not on the issue. So, the
suit was filed in US not in the Phil. US has unique law on torts
that any human right violations committed anywhere is
cognizable by US courts. Tingnan mong America, Polisya ng
buong mundo, pakialamero. Their class suit is not the common
or general interest on the subject matter but the common or
general interest on the issues. Yes, we copied our Rules from
US but parang magmukhang original, we changed the word
issue with the word subject matter. @.@ kaya mahirap
ang class suit sa Pinas.
A plane crashed in the bundok of Agusan. The relatives of the
dead passengers filed a class suit against the airline. The suit
will not prosper as there is no class suit. Your interest is only
to your own dead relative. If lola ko yung namatay, dun lang
yung interest ko sa lola ko. Huwag ka nang maki-lola sakin,
may lola ka na eh. Hindi tayo pwede mag-sama2x. Remedy
here is joinder of causes of action as they are bound by the
same accident.
May isang baryo with a factory there that emits toxic fumes.
Nagkasakit ang 400 residents there. They all want to file a
class suit against the factory. No class suit! The reason is that
even if marami tayong nagkasakit, walang common or general
interest on the subject matter. Sakit ko, yan lang ang interest
ko. Sakit mo, sakit mo yan. Bahala ka sa sakit mo! Ubo ko
hindi mo ubo.
Consolidated corporation case. A large tract of land is divided
into small lots, each is 100 sq.m. occupied by a family. There
are 5000 little squares with 100 sq.m. each. So this land is
500,000 sq.m. 50 hectares. 5000 families. One day they woke
up and realized that the land grabber has succeeded in having
those lots titled in its name. So the 5000 families bonded
together to file a class suit to recover the ownership of the
land. They are numerous enough but there is no class suit as
there is no common or general interest on the subject matter.
Each family has an interest only on the land which it occupied
not on the land of others.
When my interest can be separated from yours, there is no
class suit no matter how many we are.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; LIBEL;
VICTIM MUST BE IDENTIFIABLE. In the case of
Corpus vs. Cuaderno, Sr. (16 SCRA 807) this Court ruled that
"in order to maintain a libel suit, it is essential that the victim
be identifiable (People vs. Monton, L-16772, November 30,
1962), although it is not necessary that he be named (19
A.L.R. 116)." In an earlier case, this Court declared that ". . .
defamatory matter which does not reveal the identity of the
person whom the imputation is case, affords no ground of
action unless it be shown that the readers of the libel could
have identified the personality of the individual defamed."
(Kunkle vs. Cablenews-American and Lyons, 42 Phil. 760).
This principle has been recognized to be of vital importance,
especially where a group or class of persons, as in the case at
bar, claim to have been defamed, for it is evident that the
larger the collectivity , the more difficult it is for the
individual member to prove that the defamatory remarks apply
to him. (Cf. 70 ALR 2d. 1384).
2. ID.; ID.; ID.; DEFAMATORY REMARKS DIRECTED
AT A CLASS OR GROUP OF PERSONS MUST BE SO
SWEEPING OR ALL-EMBRACING AS TO APPLY TO
EVERY INDIVIDUAL IN THAT GROUP OR CLASS. In
the case of Uy Tioco vs. Yang Shu Wen, 32 Phil. 624, this
Court held as follows: "Defamatory remarks directed at
a class or group of persons in general language only, are not
actionable by individuals composing the class or group unless
the statements are sweeping; and it is very probable that even
then no action would lie where the body is composed of so
large a number of persons that common sense would tell those
to whom the publication was made that there was room for
persons connected with the body to pursue an upright and law
abiding course and that it would be unreasonable and absurd
to condemn all because of the actions of a part." It is evident
from the above ruling that where the defamation is alleged to
have been directed at a group or class, it is essential that the
statement must be so sweeping or all-embracing as to apply to
every individual in that group or class, or sufficiently specific
so that each individual in the class or group can prove that the
defamatory statement specifically pointed to him, so that he
can bring the action separately, if need be.
3. ID.; ID.; ID.; CLASS SUIT; NOT A CASE OF;
PLAINTIFFS DO NOT HAVE A COMMON INTEREST IN
THE SUBJECT MATTER OF CONTROVERSY. We note
that private respondents filed a "class suit" in representation of
all the 8,500 sugarcane planters of Negros Occidental.
Petitioner disagrees and argues that the absence of any
actionable basis in the complaint cannot be cured by the filing
of a class suit on behalf of the aforesaid sugar planters. We
find petitioner's contention meritorious. The case at bar is not
a class suit. It is not a case where one or more may sue for the
benefit of all (Mathay vs.Consolidated Band and Trust
Company, 58 SCRA 559) or where the representation
of class interest affected by the judgment or decree is
indispensable to make each member of the class an actual
party (Borlaza vs. Polistico, 47 Phil. 348). We have here
a case where each of the plaintiff has a separate and distinct
reputation in the community. They do not have a common or
general interest in the subject matter of the controversy.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS;
FREEDOM OF SPEECH AND PRESS; REPORT
Dean Rianos Lecture 2014 15
REFERRING TO AN OFFICIAL ACT PERFORMED BY
AN ELECTIVE PUBLIC OFFICIAL, WITHIN THE
REALMS OF THE PRIVILEGE. The disputed portion of
the article which refers to plaintiff Sola and which was
claimed to be libelous never singled out plaintiff Sola as a
sugar planter. The news report merely stated that the victim
had been arrested by members of a special police unit brought
into the area by Pablo Sola, the mayor of Kabankalan. Hence,
the report, referring as it does not an official act performed by
an elective public official, is within the realm of privilege and
protected by the constitutional guarantees of free speech and
press. The article further stated that Sola and the commander
of the special police unit were arrested. The Court takes
judicial notice of this fact. (People vs. Sola, 103 SCRA 393).
5. REMEDIAL LAW; CIVIL PROCEDURE; APPEALS; AN
ORDER DENYING A MOTION TO DISMISS, MERELY
INTERLOCUTORY AND CANNOT BE THE SUBJECT OF
AN APPEAL. As a general rule, an order denying a motion
to dismiss is merely interlocutory and cannot be subject of
appeal until final judgment or order is rendered. (Sec. 2 of
Rule 41). The ordinary procedure to be followed in such
a case is to file an answer, go to trial and if the decision is
adverse, reiterate the issue on appeal from the final judgment.
The same rule applies to an order denying a motion to quash,
except that instead of filing an answer a plea is entered and no
appeal lies from a judgment of acquittal.
6. ID.; ID.; ID.; ID.; EXCEPTIONS. This general rule is
subject to certain exceptions. If the court, in denying the
motion to dismiss or motion to quash, acts without or in
excess of jurisdiction or with grave abuse of discretion, then
certiorari or prohibition lies. The reason is that it would be
unfair to require the defendant or accused to undergo the
ordeal and expense of a trial if the court has no jurisdiction
over the subject matter or offense, or is not the court of proper
venue, or if the denial of the motion to dismiss or motion to
quash is made with grave abuse of discretion or a whimsical
and capricious exercise of judgment. In such cases, the
ordinary remedy of appeal cannot be plain and adequate.
||| (Newsweek, Inc. v. Intermediate Appellate Court, G.R. No.
L-63559, May 30, 1986)
REMEDIAL LAW; PLEADINGS; CAUSE OF ACTION,
DEFINED; CASE AT BAR. the right of the petitioners
(and all those they represent) to a balanced and healthful
ecology is as clear as the DENR's duty under its mandate
and by virtue of its powers and functions under E.O. No.
192 and the Administrative Code of 1987 to protect and
advance the said right. A denial or violation of that right by
the other who has the correlative duty or obligation to respect
or protect the same gives rise to a cause of action. Petitioners
maintain that the granting of the TLAs, which they claim was
done with grave abuse of discretion, violated their right to a
balanced and healthful ecology; hence, the full protection
thereof requires that no further TLAs should be renewed or
granted. A cause of action is defined as: ". . . an act or
omission of one party in violation of the legal right or rights of
the other; and its essential elements are legal right of the
plaintiff, correlative obligation of the defendant, and act or
omission of the defendant in violation of said legal right."
(Marao Sugar Central Co. vs. Barrios, 79 Phil. 666 [1947];

Community Investment and Finance Corp. vs. Garcia, 88 Phil.
215 [1951]; Remitere vs. vda. de Yulo, 16 SCRA 251 [1966];
Caseas vs. Rosales, 19 SCRA 462 [1967];
Virata vs. Sandiganbayan, 202 SCRA 680 [1991];
Madrona vs. Rosal, 204 SCRA 1 [1991].
ID.; ID.; MOTION TO DISMISS; LACK OF CAUSE OF
ACTION, AS A GROUND; RULE; CASE AT BAR. It is
settled in this jurisdiction that in a motion to dismiss based on
the ground that the complaint fails to state a cause of action,
the question submitted to the court for resolution involves the
sufficiency of the facts alleged in the complaint itself. No
other matter should be considered; furthermore, the truth or
falsity of the said allegations is beside the point for the truth
thereof is deemed hypothetically admitted. The only issue to
be resolved in such a case is: admitting such alleged facts to
be true, may the court render a valid judgment in accordance
with the prayer in the complaint? In Militante vs.
Edrosolano, this Court laid down the rule that the judiciary
should "exercise the utmost care and circumspection in
passing upon a motion to dismiss on the ground of the absence
thereof [cause of action] lest, by its failure to manifest a
correct appreciation of the facts alleged and deemed
hypothetically admitted, what the law grants or recognizes is
effectively nullified. If that happens, there is a blot on the legal
order. The law itself stands in disrepute." After a careful
examination of the petitioners' complaint, We find the
statements under the introductory affirmative allegations, as
well as the specific averments under the subheading CAUSE
OF ACTION, to be adequate enough to show, prima facie, the
claimed violation of their rights. On the basis thereof, they
may thus be granted, wholly or partly, the reliefs prayed for.
||| (Oposa v. Factoran, Jr., G.R. No. 101083, July 30, 1993)
A REAL PARTY IN INTEREST- A real party in interest is
the party who stands to be benefited or injured by the
judgment in the suit, or the party entitled to the avails of the
suit. Unless otherwise authorized by law or these Rules, every
action must be prosecuted or defended in the name of the real
party in interest.
Indispensable party Parties in interest without whom no final
determination can be had of an action shall be joined either as
plaintiffs or defendants.
SECTION 16. Death of Party; Duty of Counsel. Whenever
a party to a pending action dies, and the claim is not thereby
extinguished, it shall be the duty of his counsel to inform
the court within thirty (30) days after such death of the fact
thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply
with this duty shall be a ground for disciplinary action.
The heirs of the deceased may be allowed to 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.
Dean Rianos Lecture 2014 16
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 counsel for the
deceased party, or if the one so named shall fail to appear
within the specified period, the court may order the opposing
party, within a specified time, to procure the
appointment of an executor or administrator for the
estate of the deceased and the latter shall immediately appear
for and on behalf of the deceased. The court charges in
procuring such appointment, if defrayed by the opposing
party, may be recovered as costs. (16a, 17a)
SECTION 20. Action on Contractual Money Claims. When
the action is for recovery of money arising from contract,
express or implied, and the defendant dies before the
entry of final judgment in the court in which the action was
pending at the time of such death, it shall not be dismissed but
shall instead be allowed to continue until the entry of final
judgment. A favorable judgment obtained by the plaintiff
therein shall be enforced in the manner especially provided in
these Rules for prosecuting claims against the estate of a
deceased person. (21a)
Example: an action for a sum of money, defendant-debtor
dies. The court was notified by the counsel that the defendant
was already dead. The court will ask itself what happens to the
case. The case has to continue until the end of the judgment
because a money debt is not extinguished by the death of the
debtor. It has to be pursued until the entry of the judgment.
Plaintiff won but defendant died. Solution? The court will
order the substitution of the parties. Can be the heirs, executor
or administrator.
Now, plaintiff won, defendants substitute did not appeal. So
plaintiff files a motion for the issuance of the writ of execution
of judgment. The court cannot grant this. The judgment must
be presented as a claim against the estate. Rule 86. Special
proceedings will follow. The remedy is not a writ of execution
but a claim against the estate.
PARTS OF THE COMPLAINT
Certification against forum-shopping
Caption, Body, Relief/Prayer
What determines the nature of the cause of action and the
jurisdiction of the court? Material allegations of the complaint
Rule 7, SECTION 5. Certification Against Forum Shopping.
The plaintiff or principal party shall certify under oath in
the complaint or other initiatory pleading asserting a claim for
relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (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
aforesaid complaint or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be
curable by mere amendment of the complaint or other
initiatory pleading but shall be cause for the dismissal of the
case without prejudice, unless otherwise provided, upon
motion and after hearing. The submission of a false
certification or non-compliance with any of the undertakings
therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal
actions. If the acts of the party or his counsel clearly constitute
willful and deliberate forum shopping, the same shall be
ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for
administrative sanctions. (n) cdphil
- The one who certifies must be the plaintiff or the
principal party. It is not the counsel/lawyer. Hte only
instance when the lawyer can sign and certify is when he
is equipped with SPA. But that is not found in the Code,
it is found in jurisprudence.
Sample Problem: A certificate of non-forum shopping was not
attached in the complaint. When the court noticed it, the court
notified the plaintiff. The plaintiff said that he wanted to
amend the complaint since there was yet no answer. The court
granted it to include the said certification. Can the court
validly do that? Be careful with the 2nd paragraph of Rule 7,
Sec. 5. The court is not correct. It is not curable by a mere
amendment. It is in fact a ground for the dismissal of the case.
Can the court motu proprio dismiss the case for failure to
comply with the certification of forum shopping? No. It must
be upon motion and upon hearing. Thats codal!
What are the contents of the certificate of forum shopping?
Refer to first paragraph of Rule 7, Sec. 5.
If the court dismisses the complaint for failure to comply with
the certification of non-forum shopping, can the plaintiff re-
file it as a rule? Yes because the dismissal is without prejudice
unless otherwise provided.
Suppose you submitted a certification of forum shopping and
it was false. What is the effect? You can be subjected to
indirect contempt. Administrative sanction. Under that
provision there is no dismissal. There is a criminal sanction
because of the false certification.
Suppose there is a wilful and deliberate forum shopping, there
will be summary dismissal (so no need of hearing) with
prejudice and shall constitute direct contempt, as well as a
cause for administrative sanctions. No criminal sanction.
Dean Rianos Lecture 2014 17
When you file a complaint, should it be verified, meaning
under oath? Generally No unless required by law or the rules.
For example, you are going to file an action for unlawful
detainer or forcible entry. All the pleadings in UD/FE should
be verified. If you are going to file a small claims case all the
forms must be verified. All special civil actions with latin
names including prohibition must be verified.
An unverified pleading required by law to be verified can still
be cured as it is merely a formal defect. The absence of
verification is not a jurisdictional defect. If you are going to be
asked when a counsel signs his pleadings, what is the
significance of the signature of the counsel? Rule 7. It is a
certification that he has read the pleadings and that the
allegations therein are true and correct of his knowledge and
belief.
So the complaint has already been filed. As to prescriptions, it
will not be prescribed, the court acquires jurisdiction over the
plaintiff. After filing the complaint, you may have notice that
there are some defects in your allegation. So you can amend it.
AMENDMENT
As a Matter of Right
- Amendment made before the other party has served his
responsive pleading
- P filed a complaint against D. P realized that he made
mistakes in the allegations of his complaints. And D has
not filed and served his answer. P does not need a leave
of court to amend the complaint.
- If the amendment is a matter of right and the court rejects
it, the court cannot do so because again it is a matter of
right. If it does, P can avail of the special civil action of
mandamus for the court to accept the pleading.
- It cannot be denied.
- Subject matter of amendment: ANY even to correct an
error of jurisdiction.
- Example: P filed an action of sum of money against D.
But in the complaint, P failed to state that the debt has
matured, that he demanded payment. There is here a
failure to state a cause of action. When P realized it, D
has not yet filed an answer. P can amend his complaint
even without leave of court as it is a matter of right.
Suppose D was very quick and filed an MTD, P can still
amend his complaint as a matter of right since an MTD is
not a responsive pleading.
- Suppose the court already gave an order of dismissal for
failure to state a cause of action. P can still amend the
complaint as a matter of right because the order of
dismissal is not yet final. P can still make a move within
15 days before finality of the decision.
- P filed an action to collect P200K against D. P filed it in
RTC. Defect in jurisdiction. D filed an MTD on the lack
of jurisdiction over the subject matter. P simply filed an
amendment to the complaint and added P250K, so it
became P450K. P can do that to correct an error of

jurisdiction as it is a matter of right. There is yet no
responsive pleading.
- What are you going to do with the pending MTD after
the amendment has been made? You deny it. It is moot
and academic as there is already an amendment to the
complaint
- In allowing the amendment, the court did not commit a
grave abuse of discretion amounting to lack of
jurisdiction as the court has no option but to accept it,
being a matter of right.
- If I were the defendant, I will not file an MTD. Instead, I
would file an Answer and use lack of jurisdiction as an
affirmative defense. To prevent the amendment as a
matter of right.
As a Matter of Discretion
- D filed an answer with an affirmative defense of lack of
jurisdiction over the subject matter. Then P realized an
error in his allegations as to the jurisdiction. He could not
amend his complaint now as a matter of right. P has to
file a motion for leave to amend the complaint because it
is already discretionary.
- And the court said in the interest of justice I will allow
the amendment in order to thresh out the merits of the
case. Is the court correct? No. This time the court is now
acting using its discretion, acting over the complaint over
which it has no jurisdiction. It cannot allow an
amendment of a complaint over which it has no
jurisdiction. The only option is to dismiss. You can only
allow amendment as to jurisdiction when the amendment
is a matter of right. But when the amendment is a matter
of discretion, the court has no jurisdiction to allow the
amendment because it would then be acting on a
complaint over which it has no jurisdiction. The remedy
of the plaintiff is to refile it.
- In correcting errors on jurisdiction, when the discretion
of the court is necessary the court can only act on a
complaint over which it has jurisdiction.
Issues not found in the pleadings but which are tried with the
consent of the parties are deemed as if included in the
pleadings. In relation to another topic, it is possible for the
PLAINTIFF TO DISMISS ITS OWN COMPLAINT. Just like
in amendments, dismissal of own complaint is a matter of
right before the filing and service of the responsive pleading.
- Plaintiff need not file an MTD. He only need to file with
the court a Notice of Dismissal under Rule 17. It is the
notice of dismissal that operates the dismissal of the case.
The court need not even have to order the dismissal. The
court will only issue an Order confirming the dismissal,
not an order of dismissal.
- D came to P and instead of thanking P for dismissing the
case D hit P in the face. So P went back to the court to
refile it under Rule 17. It can be since it was a dismissal
without prejudice unless the notice says the dismissal
was with prejudice. When P refiled it, D pleaded to have
Dean Rianos Lecture 2014 18
the complaint dismissed. P filed a Notice of Dismissal
again to the court. But when P went home he was hit
again by D. P again went to the court to re-file it. But P
cannot do so on the basis of Two-Dismissal Rule. P can
only dismiss it twice. The 2nd dismissal already operates
as an adjudication as to the merits.
- This was asked in the Bar already in a different way. A
complaint was filed. D filed an answer. If you already
filed an answer I cannot simply file a Notice of
Dismissal. I must now file an MTD and the court decides
on it. But this is an Answer with a counterclaim. When I
filed the MTD, the court dismissed the complaint. Is the
counterclaim also dismissed? The new answer does not
anymore make any distinction between a compulsory and
a permissive counterclaim. The rule now is in Rule 17,
SECTION 2. Dismissal Upon Motion of Plaintiff. Except
as provided in the preceding section, a complaint shall not be
dismissed at the plaintiff's instance save upon
approval of the court and upon such terms and conditions as
the court deems proper. If a counterclaim has been pleaded by
a defendant prior to the service upon him of the plaintiff's
motion for dismissal, the dismissal shall be limited to the
complaint. The dismissal shall be without prejudice to the
right of the defendant to prosecute his counterclaim in a
separate action unless within fifteen (15) days from
notice of the motion he manifests his preference to have his
counterclaim resolved in the same action. Unless otherwise
specified in the order, a dismissal under this paragraph shall
be without prejudice. A class suit shall not be dismissed or
compromised without the approval of the court.
- The dismissal is limited to the complaint. The
counterclaim, whatever it is, will not automatically be
dismissed. The defendant may proceed with it.
- The rule is the dismissal of the complaint does not
operate as the dismissal of the counterclaim.
- See: (no prejudice to the counterclaim) Sec. 2 of Rule 17,
Sec. 3 of Rule 17, Sec. 6 last paragraph of Rule 16
Rule 17, SECTION 3. Dismissal Due to Fault of Plaintiff .
If, for no justifiable cause, the plaintiff fails to appear on the
date of the presentation of his evidence in chief on the
complaint, or to prosecute his action for an unreasonable
length of time, or to comply with these Rules or any
order of the court, the complaint may be dismissed upon
motion of the defendant or upon the court's own motion,
without prejudice to the right of the defendant to prosecute his
counterclaim in the same or in a separate action. This
dismissal shall have the effect of an adjudication upon the
merits, unless otherwise declared by the court
Rule 16, SECTION 6. Pleading Grounds as Affirmative
Defenses. If no motion to dismiss has been filed, any of the
grounds for dismissal provided for in this Rule may be
pleaded as an affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer.

- When a complaint is dismissed, the counterclaim filed
will not be dismissed. It will be dismissed if the
defendant himself will dismiss it.
We already mentioned the motu proprio grounds for dismissal:
lack of jurisdiction over the subject matter, res judicata, litis
pendentia, prescription and Section 3 of Rule 17 because of
the fault of the plaintiff:
the plaintiff fails to appear on the date of the
presentation of his evidence in chief on the
complaint, or
failure to prosecute his action for an unreasonable
length of time, or
failure to comply with these Rules or any
order of the court,
Now, the complaint has been filed, it has been amended. The
defendant did not file an MTD or the plaintiff did not dismiss
his complaint. Lets now go to the role of the clerk of court
to issue SUMMONS.
Why is Summons necessary? To comply with the due process
requirement of the constitution. When the action is in
personam, to acquire jurisdiction over the person of the
defendant.
How does the court acquire jurisdiction over the person of the
defendant? This presupposes that the action is in personam
because an action in rem or quasi-in rem does not require
jurisdiction over the defendant but on the res only.
You have to make a distinction between a RESIDENT
defendant (RD) and a NON-RESIDENT defendant (NRD).
When are the summons issued? Upon the filing of the
complaint and the payment of the requisite legal fees.
The defendant is a resident of the Philippines. Not citizenship!
Just residence. Even a foreigner can be considered a
Philippine Resident.
Another important topic is on Rule 14, SECTION
20. Voluntary Appearance. The defendant's voluntary
appearance in the action shall be equivalent to
service of summons. 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. (23a)
- voluntary appearance does not mean, hey your honor I
am here, how are you doing?. It is illustrated when D
filed an MTD on the ground of prescription and lack of
jurisdiction over the subject matter. That is a voluntary
appearance because I did not include in my motion lack
of jurisdiction over the person of the defendant. Or I filed
an answer with affirmative defences and I filed a
counterclaim. An appearance in court which questions
the jurisdiction of the court over the defendant is not a
voluntary appearance. Example, you filed an MTD (you
have no summons, here, ok?) on the ground of
Dean Rianos Lecture 2014 19
prescription, failure to state a cause of action, this is a
voluntary appearance because not one of the grounds
questions the jurisdiction of the court over the defendant.
x x x 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.
- In order to avoid voluntary appearance, you have to add
this, lack of jurisdiction over the person of the
defendant even if you add any other grounds.
Now, defendant received the summons and went to court to
file MTD questioning the jurisdiction of the court over his
person. There is no voluntary appearance.
D filed an MTD on the ground of lack of jurisdiction over the
subject matter. This is a voluntary appearance due to the
absence of the ground of lack of jurisdiction over the person of
the defendant.
Normally the defendant does not make any voluntary
appearance. Normally he hides from the sheriff or the process
server. So if no voluntary appearance, you go to the second
one- the valid service of SUMMONS.
Remember that our defendant is a residentin the Philippines.
When you talk about a valid service of summons there is a
priority service. Rule 14. SECTION 6. Service in Person on
Defendant. Whenever practicable, the summons shall be
served by handing a copy thereof to the defendant in person,
or, if he refuses to receive and sign for it, by tendering it to
him.
Do not call it personal service. It must be called service in
person. The old name was personal service but the new
name is service in person in order to avoid confusion.
Personal service is not found in Rule 14 but rather in Rule
13 (Filing and Service of Pleadings, Judgments and Other
Papers) of SECTION 6. Personal Service.
How do you make service in person? You go to the defendant,
find him in person and give the summons, copy of the
complaint, etc. to him. Suppose he refuse to accept it or
receives it but refuses to sign, sheriff must tender it to him.
Tendering is a part of service in person. Kunin man nya o
hindi, the service is complete. The court acquires jurisdiction
over the person of the defendant. Sheriff must write the
circumstances of the service. There is a rebuttable
presumption of regularity of the performance of official duties.
Rule 131, Sec. 3m.
The sheriff is supposed to exert efforts to serve the defendants
the summons in person. Such efforts must be written on his
return and he must exert honest to goodness efforts in trying to
locate the defendant. Pagpunta nya sa house ng defendant, di
pwede basta iwanan sa wife or kids. MTD for lack of
jurisdiction over the person of the defendant because the mode
of service is defective. So, perwisyo kay plaintiff.

"Several attempts" means at least three (3) tries, preferably on
at least two different dates. In addition, the sheriff must cite
why such efforts were unsuccessful. It is only then that
impossibility of service can be confirmed or
accepted.||| (Manotoc v. Court of Appeals, G.R. No. 130974,
August 16, 2006)
But if after those efforts he could not be found within the
reasonable time only then can you go to the next mode of
Substituted service. This is an exception to Sec. 6. But the
return of the sheriff must indicate the efforts undertaken to
find the defendant.
Problem: In order to serve the summons the sheriff went to the
house of the defendant only to find that the latter was not
there. The wife of the defendant instead signed it in his behalf.
Did the court acquire jurisdiction? The court did not acquire
jurisdiction over the defendant since there was no honest
efforts to locate the defendant.
Rule 14, SECTION 7. Substituted Service. If, for justifiable
causes, the defendant cannot be served within a reasonable
time as provided in the preceding section, service may be
effected (a) by leaving copies of the summons at the
defendant's residence with some person of suitable age and
discretion then residing therein, or (b) by leaving the copies at
defendant's office or regular place of business with some
competent person in charge thereof.
There must be a strict compliance with the service of
summons. If the service of summons is invalid, D must file
MTD for lack of jurisdiction over the person of defendant. If
dismissed, it can still be re-filed.
Do not use summons by publication. Remember! This is a
resident defendant, an action in personam.
General Rule: Summons by publication will not serve to
acquire jurisdiction over a a resident defendant, an action in
personam.
In an action in personam, dedicate that to you. General rule is
to serve it in person. Except if cannot be located then
substituted service.
In an action in rem, to whom it may concern. To the whole
world.
Exception: Rule 14, SECTION 14. Service Upon Defendant
Whose Identity or Whereabouts are Unknown. In any
action where the defendant is designated as an unknown
owner, or the like, or whenever his whereabouts are unknown
and cannot be ascertained by diligent inquiry, service may, by
leave of court, be effected upon him by publication in a
newspaper of general circulation and in such places and for
such time as the court may order.
Rule 14, SECTION 16. Residents Temporarily Out of the
Philippines. When any action is commenced against a
defendant who ordinarily resides within the Philippines, but
who is temporarily out of it, service may, by leave of court, be
Dean Rianos Lecture 2014 20
also effected out of the Philippines, as under the preceding
section.
Example: I borrowed P5M from Rocky. He demanded
payment from me, I did not pay. So he filed a suit against me.
Sheriff went to my known address but he found that my house
was abandoned. The neighbours cannot tell where I am. Can
Rocky ask leave of court to have the summons by publication?
Yes. Because my whereabouts are unknown.
Car A rear ended Car B. B was unconscious, A is nowhere to
be found. He can file a case against an unknown defendant.
Rule 14, Sec. 14.
TRANSCRIPT 4
How to acquire jurisdiction over the person of the Resident
Defendant?
The rule is if your action is an action in personam, you cannot
use summons by publication as it can only be acceptable in
actions in rem or quasi in rem. The exceptions are in Sec. 14
of Rule 14 and Sec. 16 of Rule 14. This refers to the
Philippine Resident who is temporarily outside the
Philippines. But the word summons by publicaiton is not
found in Sec. 16. Sec. 16 makes reference to the immediately
preceeding section which is Sec. 15 and Sec. 15 mentions as
one of the summons the summons by publication.
By the way, Sec. 15 is not used in actions in personam. It is
Sec. 16 that is used in actions in personam because it used the
words any actions. Also, Sec. 14 used the same words any
actions. For example, I am a Philippine Resident and I caused
damage to another person. When he filed a case against me, I
was abroad. He could not find me in my residence and I could
not be served in person. Can I be served with summons by
publication? Yes. Temporarily abroad. But summons by
publication is not the only way of serving summons for
residents temporarily abroad. The sheriff can use substituted
service of summons because I am a resident in the Philippines.
Example: A promissory note was executed. The due date was
Dec 5 1998. But on Nov 10, 1998, an action was filed to
collect a sum of money. Summons was sent and served upon
D on Dec 7, 1998. Service in person. What is the effect of
these summons? There is here a failure to state a cause of
action. These summons have no effect on the jurisdiction of
the defendant as there is actually no case. This will be a
subject to an MTD.
Now if summons was sent on Dec 7 1998, did it validate the
premature filing of the complaint? No. Because the action was
prematurely filed.
On Dec 7 when the summons was sent and the due date of the
PN was Dec 5, can he make the proper amendments in order
to correct the defect? No, as there is nothing to amend. You
can only amend something that has already a cause of action.
This is Bar 1999.
NON-RESIDENT DEFENDANT

She came to the Philippines as she was fascinated about the
Mayon Volcano, a perfect cone, and the Chocolate Hills of
Bohol. She is a tourist, not a resident of the Philippines. She
met me and asked for money as she ran out of money. I lent
her money and she executed a promissory note. I demanded
payment upon due date but she refused. I sued her. But when
the sheriff went to manila, her residence, she has already
flown back to Brazil. The court needs to acquire the
jurisdiction over her as the action is in personam. Can the
court acquire jurisdiction?
1. Voluntary appearance
2. Valid service of summons
Service in person within the Philippines. There is no
substituted service as this presupposes that the
defendant has a residence or regular office in the
Philippines.
But she already has left. There was no voluntary appearance
and she cannot be served with summons in person as she is
not in the Philippines. The court cannot acquire jurisdiction.
There can be no valid service of summons by publication
using extraterritorial service of summons because Sec. 15
does not apply to actions in personam. What am I going to
do? I shall apply for the issuance of preliminary attachment.
The case now will affect her properties in the Philippines.
Sec. 15 comes in. I will attach her property to convert the
action in personam into an action quasi-in rem. If it is now
an action quasi-in rem it will now be a case affecting the
defendants property. The court will now have jurisdiction
over the Res. The case can go on even on her absence. The
case is already a quasi-in rem action.
Now, I won the case, the property will be sold on execution.
But the highest bidder only bid P600K. Her utang is P700K.
So nakuha ko na yung P600K. Can I singil her the deficiency?
No. It is already an in personam action. The court cannot order
her to pay as it has no jurisdiction over the person. You still
have to pay another case.
But if yung tumakas is a resident, you dont need a writ of
attachment as the court can have jurisdiction over the person
through a substituted service or summons by publication.
Sec. 15 in rem and quasi-in rem for a non-resident outside
the Phil. Not for an action in personam.
An action for the declaration of nullity of marriage is not in
personam. It is an action in rem because it involves the status
of the plaintiff under sec. 15. It is not directed against the wife
who is only a nominal party. It is directed agasint the status,
an in rem.
Under Section 15 of Rule 14, a defendant who is a non-
resident and is not found in the country may be served with
summons by extraterritorial servicein four instances: (1) when
the action affects the personal status of the plaintiff; (2) 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; (3) when the relief demanded
consists, wholly or in part, in excluding the defendant from
any interest in property located in the Philippines; or (4) when
Dean Rianos Lecture 2014 21
the property of the defendant has been attached within the
Philippines.
In these instances, extraterritorial service of summons may be
effected under any of three modes: (1) by personal service
out of the country, with leave of court; (2) by publication and
sending a copy of the summons and order of the court by
registered mail to the defendant's last known address, also
with leave of court; or (3) by any other means the judge may
consider sufficient.
Applying the foregoing rule, the trial court required
extraterritorial service of summons to be effected on
Margarita in the following manner:
. . ., service of Summons by
way of publication in a
newspaper of general circulation once a
week for three (3) consecutive weeks, at
the same time, furnishing respondent
copy of this Order as well as the
corresponding Summons and copy of the
petition at her given address at No. 96
Mulberry Lane, Atherton, California,
U.S.A., thru the Department of Foreign
Affairs, all at the
expense of petitioner. (Emphasis ours)
The trial court's prescribed mode of extraterritorial service
does not fall under the first or second mode
specified in Section 15 of Rule 14, but under the third
mode. This refers to " any other means that the judge may
consider sufficient."
The Process Server's Return of 15 July 1991 shows that the
summons addressed to Margarita together with the complaint
and its annexes were sent by mail to the
Department of Foreign Affairs with
acknowledgment of receipt. The Process Server's
certificate of service of summons is prima facie evidence
of the facts as set out in the certificate. Before proceeding to
declare the marriage between Margarita and Abelardo null and
void, the trial court statedin its Decision dated 8 November
1991 that "compliance with the jurisdictional requirements
hav(e) (sic) been duly established." We hold that delivery to
the Department of Foreign Affairs was sufficient compliance
with the rule. After all, this is exactly what the trial court
required and considered as sufficient to effect
service of summons under the third mode of extraterritorial
service pursuant to Section 15 of Rule 14.
||| (Romualdez-Licaros v. Licaros, G.R. No. 150656, April 29,
2003)
Petitioner Banco do Brasil takes exception to the appellate
courts declaration that the suit below is in rem, not in
personam, thus, service of summons by publication was
sufficient for the court to acquire jurisdiction over the person
of petitioner Banco do Brasil, and thereby liable to private
respondent Cesar Urbino for damages claimed, amounting to
$300,000.00. Petitioner further challenges the finding that the
February 18, 1991 decision of the trial court was already final
and thus, cannot be modified or assailed.

Petitioner avers that the action filed against it is an action for
damages, as such it is an action in personam which requires
personal service of summons be made upon it for the court to
acquire jurisdiction over it. However, inasmuch as
petitioner Banco do Brasil is a non-resident
foreign corporation, not engaged in business in the
Philippines, unless it has property located in the Philippines
which may be attached to convert the action into an action in
rem, the court cannot acquire jurisdiction over it in respect of
an action in personam.
The petition bears merit, thus the same should be as it is
hereby granted.
First. When the defendant is a nonresident and he is not found
in the country, summons may be served extraterritorially in
accordance with Rule 14, Section 17 of the Rules of Court.
Under this provision, there are only four (4) instances when
extraterritorial service of summons is proper, namely: "(1)
when the action affects the personal status of the plaintiffs; (2)
when the action relates to, or the subject of which is property,
within the Philippines, in which the defendant claims a lien or
interest, actual or contingent; (3) 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 (4) when the defendant non-residents
property has been attached within the Philippines." In these
instances, service of summons may be effected by (a) personal
service out of the country, with leave of court; (b) publication,
also with leave of court; or (c) any other manner the court may
deem sufficient.
Clear from the foregoing, extrajudicial service of summons
apply only where the action is in rem, an action against the
thing itself instead of against the person, or in an action quasi
in rem, where an individual is named as defendant and the
purpose of the proceeding is to subject his interest therein to
the obligation or loan burdening the property. This is so
inasmuch as, in in rem and quasi in rem actions, jurisdiction
over the person of the defendant is not a prerequisite to confer
jurisdiction on the court provided that the court acquires
jurisdiction over the res.
However, where the action is in personam, one brought
against a person on the basis of his personal liability,
jurisdiction over the person of the defendant is necessary for
the court to validly try and decide the case. When the
defendant is a non-resident, personal service of summons
within the state is essential to the acquisition of jurisdiction
over the person. This cannot be done, however, if the
defendant is not physically present in the country, and thus,
the court cannot acquire jurisdiction over his person and
therefore cannot validly try and decide the case against him.
In the instant case, private respondents suit against petitioner
is premised on petitioners being one of the claimants of the
Dean Rianos Lecture 2014 22
subject vessel M/V Star Ace. Thus, it can be said that private
respondent initially sought only to exclude petitioner from
claiming interest over the subject vessel M/V Star Ace.
However, private respondent testified during the presentation
of evidence that, for being a nuisance defendant, petitioner
caused irreparable damage to private respondent in the amount
of $300,000.00. Therefore, while the action is in rem, by
claiming damages, the relief demanded went beyond
theres and sought a relief totally alien to the action.
It must be stressed that any relief granted in rem or quasi in
rem actions must be confined to the res, and the court cannot
lawfully render a personal judgment against the
defendant. Clearly, the publication of summons effected by
private respondent is invalid and ineffective for the trial court
to acquire jurisdiction over the person of petitioner, since by
seeking to recover damages from petitioner for the alleged
commission of an injury to his person or property caused by
petitioners being a nuisance defendant, private respondents
action became in personam. Bearing in mind the in
personam nature of the action, personal or, if not possible,
substituted service of summons on petitioner, and not
extraterritorial service, is necessary to confer jurisdiction over
the person of petitioner and validly hold it liable to private
respondent for damages. Thus, the trial court had no
jurisdiction to award damages amounting to $300,000.00 in
favor of private respondent and as against herein petitioner.
Second. We settled the issue of finality of the trial courts
decision dated February 18, 1991 in the Vlason case, wherein
we stated that, considering the admiralty case involved
multiple defendants, "each defendant had a different period
within which to appeal, depending on the date of receipt of
decision." Only upon the lapse of the reglementary period to
appeal, with no appeal perfected within such period, does the
decision become final and executory.
In the case of petitioner, its Motion to Vacate Judgment and to
Dismiss Case was filed on April 10, 1991, only six (6) days
after it learned of the existence of the case upon being
informed by the Embassy of the Federative Republic
of Brazil in the Philippines, on April 4, 1991, of the February
18, 1991 decision. Thus, in the absence of any evidence on
the date of receipt of decision, other than the alleged April 4,
1991 date when petitioner learned of the decision, the
February 18, 1991 decision of the trial court cannot be said to
have attained finality as regards the petitioner.
||| (Banco Do Brasil v. Court of Appeals, G.R. Nos. 121576-78,
June 16, 2000)
For non-residents
GR: no summons by publication
Exc: None. (exceptions are only available for residents)
How do you serve summons on prisoners? Thats codal! Not
yet in the bar Rule 14, SECTION 9. Service Upon
Prisoners. When the defendant is a prisoner confined in a
jail or institution, service shall be effected upon him by the
officer having the management of such jail or institution who
is deemed deputized as a special sheriff for said purpose
How do you serve upon domestic corporation? Rule 14,
SECTION 11. Service Upon Domestic Private Juridical

Entity. When the defendant is a corporation, partnership or
association organized under the laws of the Philippines with a
juridical personality, service may be made on the president,
managing partner, general manager, corporate secretary,
treasurer, or in-house counsel
Sec. 6,7,14,15,16,20 priority provisions of Rule 14.
Summons are served to the defendant for him to answer. But
there are instances when he cannot answer because there are
some details which he needs before he could file an intelligent
answer. He files a Motion for a Bill of Particulars. You do not
use this to gather the evidence which can be achieved through
modes of discovery or using the purpose of pre-trial. You do
not use MBP to prepare for trial. It is to prepare for a
responsive pleading.
RULE 12, Bill of Particulars,SECTION 1. When Applied
for; Purpose. Before responding to a pleading, a party
may move for a definite statement or for a
bill of particulars of any matter which is not averred with
sufficient definiteness or particularity to enable him
properly to prepare his responsive pleading. If the
pleading is a reply, the motion must be filed within ten
(10) days from service thereof. Such motion shall point
out the defects complained of, the paragraphs wherein
they are contained, and the details desired. (1a)
There is actually a MBP in criminal case. Rule 116, SECTION
10. Bill of Particulars. Accused may, at or before
arraignment, move for a bill of particulars to enable him
properly to plead and to prepare for trial. The motion shall
specify the alleged defects and the details desired.||| (1985
Rules on Criminal Procedure (Rules 110-127, Rules of Court),
1985 Rules on Criminal Procedure [1985])
Motions like MTD generally are litigated because they have to
be heard. But MBP may not be a litigated motion. Rule 12,
Section 2. Action by the Court. Upon the filing of the
motion, the clerk of court must immediately bring it to the
attention of the court which may either DENY or GRANT IT
OUTRIGHT, or ALLOW THE PARTIES THE
OPPORTUNITY TO BE HEARD. (n)
-So hearing of the motion is just an option to the court. It is
not mandatory
You have to follow the order of the court to submit the Bill of
Particulars within 10 days from notice. Otherwise, the court
can strike out the complaint. This is like a dismissal. In
relation to Sec. 3 Rule 17, as you did not comply with the
order of the court, fault of the plaintiff.
So now the complaint is clearer because of the motion for bill
of particulars. You can now file the other option which is to
file a motion to dismiss.
A motion to dismiss is an Omnibus Motion which is defined in
Rule 15, SECTION 8. Omnibus Motion. Subject to the
provisions of Section 1 of Rule 9, a motion attacking a
Dean Rianos Lecture 2014 23
pleading, order, judgment, or proceeding shall include all
objections then available, and all objections not so included
shall be deemed waived. (8a)
Defenses that are not waived are found in Rule 9, SECTION
1. Defenses and Objections Not Pleaded. Defenses and
objections not pleaded either in a motion to dismiss or in the
answer are deemed waived. However, when it appears from
the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action
pending between the same parties for the same cause, or that
the action is barred by a prior judgment or by
statute of limitations, the court shall dismiss the claim.
The omnibus motion rule will only apply if you file a motion
to dismiss. You have to include all grounds available;
otherwise, deemed waived.
Illustration: You filed a motion to dismiss with the following
available grounds: 1. failure to state a cause of action, 2.
improper venue, 3. prescription, 4. lack of jurisdiction over the
person of the defendant, 5. failure to comply with the statute
of frauds. But you only stated the grounds #1 and #4.
Your motion was denied. So you filed an answer. Can you still
use improper venue, prescription and failure to comply with
statute of frauds as affirmative defense in your answer? You
cannot use #2 and #5 anymore but you can use prescription as
it is not waived. That is how to use the omnibus motion rule.
So, sa omnibus motion rule (OMR), if the grounds are
available, use it. If you dont use it, its deemed waived. But
there are 4 defenses that are not waived: lack of jurisdiction
over subject matter, res judicata, litis pendentia and
prescription.
Again, the OMR will not apply if you did not file an MTD
because there is nothing to be waived. What will apply is
SECTION 6. Pleading Grounds as Affirmative Defenses. If
no motion to dismiss has been filed, any of the grounds for
dismissal provided for in this Rule may be pleaded as an
affirmative defense in the answer and, in the
discretion of the court, a preliminary hearing may be had
thereon as if a motion to dismiss had been filed. (5a)
The dismissal of the complaint under this section shall be
without prejudice to the prosecution in the same or separate
action of a counterclaim pleaded in the answer. (n)
- In other words, you can use those grounds as affirmative
defences in your answer as they are not waived. You
could even ask for a preliminary hearing at the discretion
of the court.
If the MTD is granted, it is possible to re-file your case
depending on the ground. For example, my case was
dismissed due to lack of jurisdiction as I filed it in the RTC
when it should have been filed on MTC. Re-file it in the
proper court. Same with improper venue.

The case was dismissed for failure to state cause of action, re-
file it. And even if there was a pending MTD for failure to
state the cause of action, well I can simply amend the
complaint as MTD is not a responsive pleading, I still have the
right to do so.
There are grounds for dismissal where the case is over and you
cannot re-file. <this has never been asked in the Bar> These
are found in Rule 16, SECTION 5. Effect of Dismissal.
Subject to the right of appeal, an order granting a motion to
dismiss based on paragraphs (f), (h) and (i) of Section 1 hereof
shall bar the refiling of the same action or claim. (n)
(f) That the cause of action is barred by a
prior judgment or by the
statute of limitations;
(h) That the claim or demand set forth in
the plaintiff's pleading has been
paid, waived, abandoned, or
otherwise extinguished;
(i) That the claim on which the action is
founded is unenforceable under
the provisions of the
statute of frauds;
If those are the grounds for dismissal you can no longer refile
the case as it has the effect on the adjudication of the merits of
the case. This dismissal is with prejudice. The remedy here if
you do not agree with the court is to Appeal. You do not use
certiorari because appeal is available.
I filed a complaint against D. D filed MTD on the ground of
prescription. Court granted the dismissal. I did not agree with
the court. Is this the dismissal that put an end in the case? The
case is over. There is already an adjudication on the merits.
Thus, the remedy is Appeal. Be careful with those words
with prejudice, without prejudice
^_^
without prejudice case can still be re-filed, certiorari.
adjudication of merits case is over, appeal.
with prejudice can no longer be re-filed, appeal.
D filed an MTD but the complaint was not dismissed. D has
no alternative but to file an Answer. An answer is a responsive
pleading to a complaint and to a counterclaim, crossclaim,
third-party complaint, complaint in intervention as they are all
complaints.
Two parts of an answer are negative defense and affirmative
defense.
In negative defense, use specific denials as described by the
Rules in Rule 8, SECTION 10. Specific Denial. A
defendant must specify each material allegation of fact the
truth of which he does not admit and, whenever practicable,
shall set forth the substance of the matters upon which he
relies to support his denial. Where a defendant desires to deny
only a part of an averment, he shall specify so much of it as is
true and material and shall deny only the remainder. Where a
defendant is without knowledge or information sufficient to
Dean Rianos Lecture 2014 24
form a belief as to the truth of a material averment made in the
complaint, he shall so state, and this shall have the effect of a
denial. (10a)
How do you make a specific denial? You go over the specific
allegations, paragraph by paragraph. Make reference to the
paragraph where the allegation was made then you say the
defendant denies that he borrowed money from the plaintiff.
Or to admit a part or deny a part. Example, D specifically
denies that he borrowed money from the plaintiff as in fact the
money was given as a donation. Another way of denial is by
saying that the defendant admits that he borrowed money but
he denies that he did not pay as in fact he already pay.
But if your denial is like this, I specifically deny all the
allegations in the complaint. That is not a specific denial.
Instead it is a general denial which are deemed admissions.
A denial to be specific does not have to be under oath as long
as it follows the Rule 8, Sec. 10. When should denial be
under oath?
1. ACTIONABLE DOCUMENTS
Rule 8, SECTION 7. Action or Defense Based on Document.
Whenever an action or defense is based upon a written
instrument or document, the substance of such instrument or
document shall be set forth in the pleading, and the original or
a copy thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said
copy may with like effect be set forth in the pleading. (7)
SECTION 8. How to Contest Such Documents. When an
action or defense is founded upon a written instrument, copied
in or attached to the corresponding pleading as provided in the
preceding section, the genuineness and due execution of the
instrument shall be deemed admitted unless the adverse party,
under oath, specifically denies them, and sets forth what he
claims to be the facts; but the requirement of an oath does not
apply when the adverse party does not appear to be a party to
the instrument or when compliance with an order for an
inspection of the original instrument is refused. (8a)
- In case an actionable document is involved. It is a
document that is a basis for an action or defense. If I file
an action to collect a sum of money on the basis of
promissory note you executed on my favour. That PN is
the basis of my claim which is an actionable document.
If Foreclosure of REM- Deed of REM
- An actionable document can also be a basis of defense.
So if I sue you for collection of sum of money and your
defense is payment evidenced by receipt. The receipt is
an actionable document.
- If I want to deny the genuineness and due execution of
your document I have to deny it specifically plus an oath.
It must be a verified denial. Specific denial is not
enough. If it is not under oath, you are admitting
impliedly the genuineness and due execution of his
actionable document. Youre only bound to deny it under
oath if you are a party to the instrument.

- There are instances when you dont have to deny the
document under oath:
If the person denying the genuineness is not a party
to the instrument or
A previous request to show the original has been
refused.
2. ALLEGATIONS OF USURY IN A COMPLAINT
SECTION 11. Allegations Not Specifically Denied
Deemed Admitted. Material averment in the
complaint, other than those as to the
amount of unliquidated damages, shall be deemed
admitted when not specifically denied.
Allegations of usury in a complaint to recover
usurious interest are deemed admitted if not denied
under oath.
Illustration: P filed a complaint for sum of money against D. D
said in his defense that Ps interest is usurious. The allegations
of the usury by D is in his answer. P did not reply to the
allegations of the usury. Are the allegations of the usury
deemed admitted? No as they are not allegations of usury in
the complaint that is filed to recover usurious interest. The
allegation of usury here is a defense in an answer. Not all
allegations of usury of interest need to be denied under oath. It
should be allegation of usury in a complaint that is filed to
recover usurious interest.
What if the defendant does not file and serve his answer to the
complaint? Now comes in the principles of Rule 9, SECTION
3. Default; Declaration of. 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. Thereupon, the court shall proceed to render judgment
granting the claimant such relief as his pleading may warrant,
unless the court in its discretion requires the claimant to
submit evidence. Such reception of evidence may be delegated
to the clerk of court. (1a, R18)
(a) Effect of order of default. A party in
default shall be entitled to
notice of subsequent
proceedings, but not to take part
in the trial. (2a, R18)
(b) Relief from order of default. A
party declared in default may at
any time after notice thereof and
before judgment file a motion
under oath to set aside the
order of default upon proper
showing that his failure to
answer was due to fraud,
accident, mistake or excusable
negligence and that he has a
meritorious defense. In such
case, the order of default may be
set aside on such terms and
conditions as the judge may
impose in the interestof justice.
(3a, R18)
Dean Rianos Lecture 2014 25
(c) Effect of partial default. When a
pleading asserting a claim states
a common cause of action
against several defending parties,
some of whom answer and the
others fail to do so,
the court shall try the case
against all upon the answers thus
filed and render judgment upon
the evidence presented. (4a, R18)
(d) Extent of relief, to be awarded. A
judgment rendered against a
party in default shall not exceed
the amount or be different in kind
from that prayed for nor award
unliquidated damages. (5a, R18)
(e) Where no defaults allowed. If the
defending party in an action for
annulment or
declaration of nullity of marriage
or for legal separation fails to
answer, the court shall order the
prosecuting attorney to
investigate whether or not a
collusion between the parties
exists, and if there is no
collusion, to intervene for the
State in order to see to it that the
evidence submitted is not
fabricated. (6a, R18)
Illustration: I am the judge and I was examining the records of
the case. I noticed that D has been duly served with summons
but its already 2 months and there was no answer. So I issued
an order of default. Did I follow the rules when I immediately
ordered the default of the defendant. This has not been asked
in the Bar yet. The court is not correct because you can only
declare a party in default upon motion. The court cannot motu
proprio declare D in default.
What is the ground for declaration of default? Only one
ground in Sec. 3 of R9: failure to answer within reglementary
period. Thus a failure to appear in pre-trial is not a ground to
default. It has a different consequence. The court there would
allow the plaintiff to present evidence ex parte. But the rules
do not call it default. Also the failure to appear in trial is not a
ground to default. This is not a basketball game na pag di ka
sumipot ay default na. But is there a possibility that even if
you file an answer there can be a default? Yes. Theoretical
possibility: D filed an answer. I wanted to file a reply but her
answer needed more particulars before I can file a reply on her
answer. Remember that a Motion for bill of particulars is not
limited to a complaint. It could be directed against any
pleading. Now, back to the story, the court ordered her to
submit a bill of particulars to her answer and she refused to do
so. So the court drop out her answer. It is as if there is no
answer. I could move to declare her in default. But another
situation is found in the Rules. The failure to comply with the
modes of discovery could lead to a judgment in default. Rule
29, Section 5. Failure of Party to Attend or Serve Answers.
If a party or an officer or managing agent of a party wilfully

fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after
proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof,
or enter a judgment by default against that party, and in its
discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees. (5)
- The answer is not an answer to the complaint but an
answer to the mode of discovery. So the party in default
here could be against the plaintiff who does not comply
with the modes of the discovery. Not only limited to
defendant.
Rule 29, Section 3. Other Consequences. If any party or an
officer or managing agent of a party refuses to obey an order
made under Section 1 of this Rule requiring him to answer
designated questions, or an order under Rule 27 to produce
any document or other thing for inspection, copying, or
photographing or to permit it to be done, or to permit entry
upon land or other property, or an order made under Rule 28
requiring him to submit to a physical or mental examination,
the court may make such orders in regard to the refusal as are
just, and among others the following:
xxx
(c) An order striking out pleadings or
parts thereof, or staying further
proceedings until the order is
obeyed, or dismissing the action
or proceeding or any part thereof,
or rendering a judgment by
default against the disobedient
party; and
xxx
- A plaintiff can be considered in default also here.
- So these are the hidden defaults. The public default is in
Rule 9. That is what is commonly known to the public.
Illustration: I am the defending party, I did not file an answer.
The plaintiff filed a motion to declare me in default.
Jurisprudence has decided, not literally in accordance with the
Rules which say shall declare, that declaration in default is
not mandatory on the part of the court. Even if the answer is
filed late but admitted by the court, it should not declare the
defendant in default. Now, a person declared in default, he is
entitled to be given a copy of the motion to declare him in
default. If he is declared in default, he is not entitled to
participate in the proceedings. He has lost his standing in
court. But he is entitled to the notices of the subsequent
proceedings. Only notices, not participation. How could a
defaulted defendant participate in the trial even if he has been
declared in default? He could appear as a witness because
default does not prevent you from becoming a witness. It only
prevents you from participating in the proceedings as a party.
Be very careful on this. Rule 9, SECTION 3. Default;
Declaration of. x x x. Thereupon, the court shall proceed
to render judgment granting the claimant such relief as his
Dean Rianos Lecture 2014 26
pleading may warrant, unless the court in its discretion
requires the claimant to submit evidence. Such
reception of evidence may be delegated to the clerk of court.
The court has 2 options:
1. proceed to render judgment or
2. require the plaintiff to present the evidence.
But also take note of the instances where you cannot be
declared in default:
1. actions for annulment of marriage
2. action for declaration of nullity of marriage
3. action for legal separation
That can be used as a trick question!
Take note also that if you win by default, you cannot be given
more than what you are asking for. You cannot be given
different from it either.
. Rule 9, SECTION 3. Default; Declaration of. x x x.x x x
(d) Extent of relief, to be awarded. A
judgment rendered against a
party in default shall not exceed
the amount or be different in kind
from that prayed for nor award
unliquidated damages. (5a, R18)
Kung hinihingi mo ay P10M kahit na ang ebidensya moy
P20M, P10M lang ang ibibigay sayo.
But the story is different if it is really a trial on the merits.
The pleadings say P10M. The evidence proved P15M during
the trial. There was no objection. The court can grant P15M
because it is as if it was the issue in the pleadings. But in case
of defaults, you are only limited to what you have asked for
even if the evidence says the contrary.
Do not forget the kinds of COUNTERCLAIMS:
Permissive, Compulsory
The first indication that the counterclaim is compulsory is
that it has a subject matter really related to the complaint. If
no relation, it is merely permissive.
But sometimes even if there is a relation between the topic of
the counterclaim and the topic of the complaint, it is still
considered permissive if the counterclaim is filed with the
court which has no jurisdiction over it. Example, I am a cook
in a restaurant of Radisson Blu Hotel. Because of my
negligence, the kitchen was burned to the extent of P10M. The
management dismissed me and sued me for damages. I filed
an answer and my counterclaim is illegal dismissal. My
counterclaim was related to the complaint; it was about the
burning thats why I was dismissed. But my counterclaim is
permissive and not compulsory because a regular court has no
jurisdiction over illegal dismissal which must instead be filed
with the labor arbiter.

I was sued by the plaintiff-seller for non-payment of P250K
representing the balance for the purchase of a car. My
counterclaim is that I am not going to pay you because I am
going to collect from you P500K because your car sold to me
has a hidden defect. My counterclaim is related to the
complaint but it is merely permissive because an MTC has no
jurisdiction over a counterclaim of P500K. It is beyond its
jurisdiction. If you go to the RTC, if your counterclaim is only
P200K it is still compulsory even if the amount is not within
RTC. The rule is different in MTC. If it is not within its
jurisdiction, permissive. But in RTC, even if its not within its
jurisdiction, still compulsory counterclaim.
Bar 2010
You sued me for collection of sum of money. I am also suing
you for: damages for filing a complaint with no basis at all, I
was forced to litigate so I hired a lawyer because of your
baseless complaint and I got sick so I got hospitalized.
Compulsory Counterclaim, because all of the expenses are the
result of the filing of the complaint.
You sued me for collection of P10M. My counterclaim was
this, bayaran mo din ako ng P10M because my warehouse
which you rented was burned because of your negligence.
Permissive, because it has no relation. The complaint was
based on a contract of loan. The counterclaim was based on
quasi-delict.
Why make a distinction between compulsory and permissive
counterclaim? If you know that your counterclaim is
permissive, the other party has to file an answer; otherwise,
the defendant can declare him in default for failure to file an
answer. A permissive counterclaim is like an independent
complaint. It has to be answered. A compulsory counterclaim
does not have to be answered.
Compulsory counterclaim does not need a certification against
forum shopping but the permissive counterclaim because it is
considered an initiatory pleading must be accompanied with a
certification against forum shopping.
Under the present rules, SC requires payment for both
compulsory and permissive counterclaims since 2004.
A compulsory counterclaim will be barred if not invoked in
the same case. But a permissive counterclaim will not be
barred. It will be filed as an independent action.
When the complaint is dismissed, there is no automatic
dismissal of the counterclaim. The dismissal is limited to the
complaint. It does not cover the complaint.
Is a reply mandatory? No. Rule 6, SECTION 10. Reply. A
reply is a pleading, the office or function of which is to deny,
or allege facts in denial or avoidance of new matters alleged
Dean Rianos Lecture 2014 27
by way of defense in the answer and thereby join or make
issue as to such new matters. If a party does not file such
reply, all the new matters alleged in the answer are
deemed controverted.
If the plaintiff wishes to interpose any claims arising out of the
new matters so alleged, such claims shall be set forth in an
amended or supplemental complaint. (11)
- in other words, even if you do not file a reply, the
allegations in the answer are deemed denied.
But contrasted with complaint, it is different. Rule 8,
SECTION 11. Allegations Not Specifically Denied Deemed
Admitted. Material averment in the complaint, other than
those as to the amount of unliquidated damages, shall be
deemed admitted when not specifically denied.
Allegations of usury in a complaint to recover usurious
interest are deemed admitted if not denied under oath.
When are you advised to file a reply even if you are not
obligated to file a reply? IOW what is the circumstance
requiring you to file a reply? If the answer of the defendant
uses an actionable document as a defense and you want to
deny the genuineness and due execution of that document, you
have to reply under oath.
The last pleading is the reply. Then the case is deemed
submitted to the court for decision. Yung mga rejoinder na yan
theyre not pleadings but mere manifestations. So papasok na
ang pre-trial. Rule 18.
PRE-TRIAL
Rule 18
- It can only be set when all the pleadings are in court, OW
its premature.
- In the civil case, it is not the court which motu proprio
set the case for pre-trial. The PLAINTIFF must file a
motion ex parte to set the case for pre-trial. If he does not
file a motion to set the case for pre-trial, the case will not
move.
- Suppose the case has not moved for an unreasonable
period of time it is considered as failure to prosecute the
case. This is the fault of the plaintiff. Under Rule 17,
Sec. 3, it is a ground for dismissal. But now it is not
anymore a ground for dismissal since July 13, 2004 if the
plaintiff failed to file a motion for pre-trial. Plaintiff is
given 5 days from the filing of the last pleading to file
the motion to set the case for pre-trial. OW, the branch
clerk of court will set the case in pre-trial. <but that is not
reflected in you Rex copies. Bad t-Rex! Dean Riano
told Rex about it 10 years ago!>
- Within five (5) days from date of filing
of the reply, the plaintiff must promptly move ex
parte that the case be set for pre-
trial conference. If theplaintiff
fails to file said motion within the given
period, the Branch COC shall issue a notice of pre-

trial. DISHEA||| (Guidelines in the Conduct of Pre-Trial
and Use of Deposition-Discovery Measures, A.M. No.
03-1-09-SC [2004])
SECTION 2. Nature and Purpose. The pre-trial is
mandatory. The court shall consider:
(a) The possibility of an amicable settlement or of a
submission to alternative modes of dispute resolution;
(b) The simplification of the issues;
(c) The necessity or desirability of amendments to the
pleadings;
(d) The possibility of obtaining stipulations or
admissions of facts and of documents to avoid
unnecessary proof;
(e) The limitation of the number of witnesses;
(f) The advisability of a preliminary reference of issues to
a commissioner;
(g) The propriety of rendering judgment on the pleadings,
or summary judgment, or of dismissing the action
should a valid ground therefor be found to exist;
(h) The advisability or necessity of suspending the
proceedings; and
(i) Such other matters as may aid in the prompt
disposition of the action.
There is a pre-trial in a criminal case. Rule 118. In a criminal
case, the prosecution need not file a motion to set the case for
pre-trial. The pre-trial will be set by the court after
arraignment and within 30 days after it acquired jurisdiction
over the accused.
A pre-trial in a criminal case is MANDATORY. Rule 118,
SECTION 1. Pre-trial; Mandatory in Criminal Cases. In
all criminal cases cognizable by the Sandiganbayan, Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court
in Cities, Municipal Trial Court and Municipal Circuit Trial
Court, the court shall, after arraignment and within thirty (30)
days from the date the court acquires jurisdiction over the
person of the accused, unless a shorter period is provided for
in special laws or circulars of the Supreme Court, order a pre-
trial conference to consider the following:
(a) plea bargaining; (pleading to a lesser offense)
(b) stipulation of facts;
(c) marking for identification of evidence of the parties;
(d) waiver of objections to admissibility of evidence;
(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. (secs.
2 and 3, cir. 38-98)
The equivalent of pre-trial in appellate courts and in a civil
case in summary procedure
is preliminary conference.
Dean Rianos Lecture 2014 28
Pre-trial is mandatory in trial courts for both civil and criminal
case. On the other hand, Preliminary conference is not
mandatory in appellate courts.
RULE 48, Preliminary Conference, SECTION 1. Preliminary
Conference. At any time during the pendency of a case,
the court may call the parties and their counsel to a
preliminary conference:
(a) To consider the possibility of an amicable settlement,
except when the case is not allowed by law to be
compromised;
(b) To define, simplify and clarify the issues for
determination;
(c) To formulate stipulations of facts and
admissions of documentary exhibits, limit the
number of witnesses to be presented in cases falling within the
original jurisdiction of the court, or those within its appellate
jurisdiction where a motion for new trial is granted on the
ground of newly discovered evidence; and
(d) To take up such other matters which may aid the court in
the prompt disposition of the case. (Rule 7, CA Internal Rules)
(n)
It is also possible to have a preliminary conference in the
Supreme Court, Rule 56, SECTION 2. Rules Applicable.
The procedure in original cases for certiorari,
prohibition, mandamus, quo warranto and habeas corpus shall
be in accordance with the applicable provisions of the
Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule,
subject to the following provisions: x x x
Suppose the plaintiff and defendant do not want to settle the
case amicably and the court decided to end the pre-trial, is the
court correct? No. Amicable settlement is not the only purpose
of pre-trial. You can have ADR, stipulations and admissions
of facts, limit the number of witness, etc. Thus, failure to reach
an amicable settlement is not a ground to terminate pre-trial as
there are many other purposes for a pre-trial. This is one way
of telling you to remember the purposes!
Now lets compare it with criminal case. Amicable settlement
is not one of the purposes of the pre-trial in a criminal case.
There are no amicable settlement and compromise in criminal
case because of Rule 130, Section 27. Offer of compromise
not admissible. xxx
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may be
received in evidence as an implied admission of guilt.
xxx
Is there a matter in criminal proceeding that can be subject to
compromise or amicable settlement? Yes. A criminal case has
two aspects: criminal and civil
RPC, ARTICLE 100.Civil Liability of Person
Guilty of Felony. Every person criminally liable for a
felony is also civilly liable.

- Here, only the civil aspect can be compromised. But
even if the civil aspect is compromised, this will not
prevent the State from imposing the penalty for that
offense.
- NCC, ARTICLE 2034.There may be a compromise
upon the civil liability arising from an offense; but
such compromise shall not extinguish the public action
for the imposition of the legal penalty.
- Lets talk about reality, this lady pointed a bazooka at
me and said, your money or your life. There is robbery
here. An information for robbery was filed. Then, she
said, huwag mo na akong idemanda, ill return to you
the money I stole with interest. So I told the fiscal
about it. Then fiscal filed motion to withdraw the
information. Hes not gonna say that its because of the
compromise. Hed say that the reason was based on the
absence of evidence and eye-witnesses. There is actual
compromise here. But hes not gonna say it in court,
otherwise he will be subjected to disciplinary action
for ignorance of the law.
- Theres one aspect of a difference in pre-trial of civil
case and pre-trial of criminal case which you should
look out for. If the prosecutor and accused do not
appear in a pre-trial of a criminal case, there is no
dismissal of the case. But if a plaintiff, without
justifiable cause, does not appear in the pre-trial of
civil case, there is a possible dismissal of the case. If
defendant does not appear, that would be a ground for
the court to ask the plaintiff to present the evidence ex
parte. If you are a party who cannot attend a pre-trial,
you must designate a representative in writing. The
authorization must contain specific authorization. Rule
18, SECTION 4. Appearance of Parties. It shall be
the duty of the parties and their counsel to appear at
the pre-trial. The non-appearance of a party may be
excused only if a valid cause is shown therefor or if a
representative shall appear in his behalf fully
authorized in writing
to enter into an amicable settlement,
to submit to alternative modes of dispute
resolution, and
to enter into stipulations or admissions of facts
and of documents
In trial practice, it is also the lawyer who is given the
authority to compromise. So when the lawyer appears, he
appears in two capacities: as a counsel and as a personal
representative of the party.
When can a party be considered as absent even if present?
The failure to file a pre-trial brief.
If the plaintiff fails to appear in the pre-trial and the case is
dismissed, can the plaintiff re-file the case? General rule: it
cannot be re-filed unless otherwise ordered. It is with
prejudice. Remedy here is to appeal.
Dean Rianos Lecture 2014 29
Rule 18, SECTION 5. Effect of Failure to Appear. The
failure of the plaintiff to appear when so required pursuant to
the next preceding section shall be cause for dismissal of the
action. The dismissal shall be with prejudice, unless otherwise
ordered by the court. A similar failure on the part of the
defendant shall be cause to allow the plaintiff to present his
evidence ex parte and the court to render judgment on the
basis thereof. (2a, R20)
Suppose there is no amicable settlement, the next would be
Trial. Rule 30
There can be a judgment without a trial. Trial is only
necessary if there are issues of facts to be resolved. You do not
resolve issues of law in a trial, but only issues of facts. If
everything has been admitted by the parties already there is no
need for a trial. Plaintiff may file a motion for a judgment on
the pleadings. A judgment on the pleading and a summary
judgment are both judgments with no trial.
There can be a judgment as a consequence on a mere Motion
to Dismiss when the dismissal is res judicata; if the ground for
dismissal is prescription, payment and unenforceable under
Statute of Frauds, you cannot refile because there is a
judgment. The remedy is appeal. You can only appeal a
judgment.
In a summary procedure, in a civil case, there is no trial. There
are only affidavits, pleadings and depositions. There is a
judgment.
A trial can be dispensed with by agreement of the parties. Rule
30 SECTION 6. Agreed Statement of Facts. The parties to
any action may agree, in writing, upon the facts involved in
the litigation, and submit the case for judgment on the facts
agreed upon, without the introduction of evidence.
If the parties agree only on some of the facts in issue, the trial
shall be held as to the disputed facts in such order as
the court shall prescribe. (2a, R30)
Is it possible to have a modified trial in a civil case? Yes. In
Civil cases, SECTION 5. Order of Trial. Subject to the
provisions of Section 2 of 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:
xxx
Illustration: P filed an action for sum of money worth P5M
against D. D admitted the debt but alleged that he paid it
already. Upon motion by D, the court may grant D to present
evidence ahead of P to prove the fact of payment.
Rule 31, SECTION 2. Separate Trials. The court, in
furtherance of convenience or to avoid prejudice, may order a
separate trial of any claim, cross-claim, counterclaim, or third-
party complaint, or of any separate issue or of any
number of claims, cross-claims, counterclaims, third-party
complaints or issues
- All of these are discretion of the court

Compare this with criminal cases, Rule 119.
SECTION 11. Order of Trial. The trial shall proceed in the
following order: xxx
(e) 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. (i.e. self defense)
Rule 118, SECTION 1. Pre-trial; Mandatory
in Criminal Cases. xxx
(e) modification of the order of trial if the
accused admits the charge but
interposes a lawful defense; and
A trial can be postponed. But if it is through oral motion, if
you are the lawyer of the other party, you object. Rule 30,
SECTION 4. Requisites of Motion to Postpone Trial for
Illness of Party or Counsel. A motion to postpone a trial on
the ground of illness of a party or counsel may be granted if it
appears upon affidavit or sworn certification that the
presence of such party or counsel at the trial is indispensable
and that the character of his illness is such as to render his
non-attendance excusable. (5a, R22)
RULE 33
Demurrer to Evidence
SECTION 1. Demurrer to Evidence. After the plaintiff has
completed the presentation of his evidence, the defendant may
move for dismissal on the ground that upon the facts and the
law the plaintiff has shown no right to relief. If his motion is
denied, he shall have the right to present evidence. If the
motion is granted but on appeal the order of dismissal is
reversed he shall be deemed to have waived the right to
present evidence. (1a, R35)
- This is a Motion to Dismiss but differently named in
order to avoid confusion with Rule 16. A motion to
dismiss is filed even before an Answer is served but a
Demurrer to evidence is filed after the plaintiff rests his
case, meaning he is done with the presentation of his
evidence.
- There is only one ground for demurrer to evidence. In the
civil case, do not use insufficiency of evidence. Instead,
use: Under the facts and the law the plaintiff is not
entitled to the relief. The phrase insufficiency of
evidence is a ground for demurrer in a criminal case in
Rule 119, SECTION 23. 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. (15a)
Dean Rianos Lecture 2014 30
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 prosecution
rests its case. The prosecution may oppose the motion within a
non-extendible period of five (5) days from its
receipt. EHDCAI
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. (n)
TRANSCRIPT 5
Demurrer to Evidence
- A form of a motion to dismiss but it is not the MTD in
Rule 16. It is not also the MTD in Rule 17. The
Demurrer to Evidence in Rule 33 is a motion filed after
the plaintiff has rested his case which means that the
plaintiff is already done with the presentation of his
evidence. It is now for the defendant to present the
evidence. But the defendant realized that there is no need
to present evidence because he thinks that the plaintiff is
not entitled to the relief as seen in law and in facts. The
ground here is insufficiency of evidence but do not use
these words. Simply use the wordings of the Rules: upon
the facts and the law the plaintiff has shown no right to
relief. In the criminal case the ground is very specific:
insufficiency of evidence.
Does the defendant have to file a Demurrer to Evidence with
leave of court? Not in a civil case.
Let us now presume that defendant filed a Demurrer to
Evidence. Demurrer to Evidence is just a more sophisticated
name for an MTD. And so the DTE was granted by the court
and the case is dismissed. The dismissal here is a final one.
Thus, the plaintiff could appeal. Upon appeal, the dismissal
was reversed. The higher court decided that the case should
have not been dismissed. Is there any adverse implication
against the defendant? Yes. The defendant can no longer
present his evidence if the order of dismissal is reversed. The
higher court will decide on the case on the basis of the
evidence of the plaintiff. That is the effect of a DTE granted
but reversed on appeal.
Suppose the DTE was denied by the trial court, the case is not
over. The defendants move is to present his evidence. There
is no waiver.
That is why it is very risky to file a DTE. If it was granted by
the trial court and the case is dismissed, the plaintiff appeals
and the case is reversed on appeal, the defendant can no longer
present his evidence.

In the criminal case, even the court in its own initiative can
dismiss the criminal case. In other words, after the prosecution
has presented the evidence, the court can dismiss the criminal
case on the ground of insufficiency of evidence. The court can
motu proprio make its own demurrer to evidence in a criminal
case. Before it makes its own demurrer, the court will give the
prosecution the opportunity to be heard. That is not true in a
civil case. The court does not make its own demurrer in the
civil case.
In a civil case, the DTE is filed by the defendant. In the
criminal case, DTE may be done by the court in its own
initiative or it may be done by the accused. When the accused
files DTE in a criminal case, he can do it in 2 ways:
1. With leave of court - There is an advantage when the
accused files a DTE with leave of court and it is
denied he can still present his evidence.
2. Without leave of court- But if he files a DTE without
leave of court and it is denied, he waives his right to
present his evidence.
A criminal case is unique in the sense that if you file a DTE,
granted and the case is dismissed, it is not just a mere
dismissal as it amounts to an ACQUITTAL. Thus, the
prosecution cannot appeal because of the principle of Double
Jeopardy. In the civil case, if it is granted, he can appeal.
Let us suppose the case was not dismissed by the demurrer. So
proceed with the trial then the judgment. Can there be a
judgment even without a trial? Yes.
JUDGMENT
There are 2 concepts you have to remember in the judgment.
What do you mean by a Final Judgment?
The word final is used in two senses:
That the trial is over and the court has made the
decision
It could already be subject to execution
The moment the court renders judgment and you are notified
of that judgment, it does not mean that it is executory. It is
only final. It becomes executory when the period for appeal
lapses. The normal period for appeal is 15 days from notice of
judgment or final order.
There is another important concept called Entry of Judgment.
Rule 36.
Suppose you received the notice of judgment on April 1. You
generally have 15 days to make a move appeal or MR or
MNT. On April 16, no move was made, the judgment became
final and executory. The date it became final and executor is
also the date of the entry of judgment.
Dean Rianos Lecture 2014 31
The entry of judgment is the physical act by which the Clerk
of Court enters the dispositive portion of the judgment in the
Book of Entries of Judgment and he signs and certifies that it
has become final and executory.
Suppose the Clerk of Court forgot to do it on that date and
instead physically entered the judgment on April 20. Under
the new rules, the entry of judgment is not April 20 but on
April 16, the day the judgment actually became final and
executory. Not yet asked in the bar.
Another important concept: Separate Judgment. Several
Judgment (se-vee-ral, nahati/naputol, hindi yung marami)
Sec. 36, SECTION 4. Several Judgments. In an action
against several defendants, the court may, when a several
judgment is proper, render judgment against one or
moreof them, leaving the action to proceed against the others.
(4)
- This presupposes many defendants. But it is possible that
the court can render judgment first on one of the
defendants before it can decide on the others. It depends
on the availability of evidence during the trial. Normally
though, Philippine courts do not apply this. normally,
judges wait for all the evidence to come in.
SECTION 5. Separate Judgments. When more than one
claim for relief is presented in an action, the court, at any
stage, upon a determination of the issues material to a
particular claim and all counterclaims arising out of the
transaction or occurrence which is the subject matter of the
claim, may render a separate judgment disposing of such
claim. The judgment shall terminate the action with respect to
the claim so disposed of and the action shall proceed as to the
remaining claims. In case a separate judgment is rendered,
the court by order may stay its enforcement until the
rendition of a subsequent judgment or judgments and may
prescribe such conditions as may be necessary to secure the
benefit thereof to the party in whose favor the judgment is
rendered. (5a)
- This presupposes various claims: claim of plaintiff, claim
of defendant, in a counterclaim, cross-claim, claim on
third-party complaint. Possible not sabay-sabay i.e.
pwede maunang i-resolve ang claim sa counterclaim then
that of cross-claim.
These provisions authorized the courts to render several
judgments or separate judgments when circumstances warrant.
These are subject to the sound judicial discretion.
The judgment cannot be an oral judgment. It must be in
writing. The judgment must be personally prepared and signed
by the judge. (Although in reality judges have legal
researchers who prepare for it; but once the judge signs it, by
legal fiction it is deemed as though personally prepared by the
judge)

A judgment has been rendered. Let us assume the defendant
loses the case or sometimes the plaintiff loses the case.
Common sense tells us that you cannot immediately go to
execution since the party who lost in the case would try to
reverse the adverse judgment.
REMEDIES AGAINST THE JUDGMENT
- A topic that is almost every year present in the bar.
- a.k.a. Post-Judgment Remedies
- 2 situations:
BEFORE JUDGMENT BECOMES FINAL AND
EXECUTORY (within the period for appeal)
Motion for Reconsideration, R37
Motion for New Trial, R37
Appeal- R 40, 41, 42, 43, 45
AFTER JUDGMENT BECOMES FINAL AND
EXECUTORY (after the period of appeal has lapsed)
Annulment of Judgment- R47
Petition for Relief- R38
Certiorari R65
Before you appeal, MR or MNT are not requirements.
However if you file an MR or MNT and that is denied, you
can Appeal. But you can file an appeal even without a prior
MR or prior MNT.
RULE 37
New Trial or Reconsideration
Refers to MR and MNT against the judgment of a trial court.
Do you have MR in an appellate court, i.e. CA and SC? Yes.
Rule 52 for CA. SECTION 1. Period for Filing. A party
may file a motion for reconsideration of a judgment or final
resolution within fifteen (15) days from notice thereof, with
proof of service on the adverse party.
Rule 56 for SC SECTION 2. Rules Applicable. The
procedure in original cases for certiorari,
prohibition, mandamus, quo warranto and habeas corpus shall
be in accordance with the applicable provisions of the
Constitution, laws, and Rules 46, 48, 49, 51, 52 and this Rule,
subject to the following provisions: xxx
There is a Motion for Reconsideration from the judgment of
the Supreme Court because that is your only remedy against
the SC. You cannot appeal to a body higher than SC. You
cannot appeal to God.
Is there also an MNT against appellate court, i.e. CA? Yes.
Rule 53 for CA.
CA is an appellate court but you are given the chance to file a
motion for new trial when CA is not a trial court because there
are times when CA can receive evidence, conduct trials and
even new trials to resolve factual issues. CA has unique
power.
Dean Rianos Lecture 2014 32
"Sec. 9. Jurisdiction. The Court of Appeals shall
exercise:
xxx
"The Court of Appeals shall have the power to try cases and
conduct hearings, receive evidence and perform any and all
acts necessary to resolve factual issues raised in cases falling
within its original and appellate jurisdiction, including the
power to grant and conduct new trials or further proceedings.
Trials or hearings in the Court of Appeals must be
continuous and must be completed within three (3) months,
unless extended by the Chief Justice."
||| (Amendment to B.P. Blg. 129 Re: Expansion of CA
Jurisdiction, REPUBLIC ACT NO. 7902 [1995])
So you have New Trials in the trial court and CA. Do you
have new trials in SC? No. Under the Rule 56, Rule 53 on
New Trials that applies to CA does not apply to SC. In Rule
56, Sec 2 there is no reference to Sec. 53. The reason for this
is because the SC is not a trier of facts. The general rule is SC
caters to questions of law only.
Rule 45 - appeal by certiorari to the SC. Petition for review on
Certiorari, Rule 45 (Petition for certiorari, Rule 65)
SECTION 1. Filing of Petition with Supreme Court. A
party desiring to appeal by certiorari from a judgment, final
order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, 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 may include an application for a
writ of preliminary injunction or other provisional remedies
and shall raise only questions of law, which must be distinctly
set forth. The petitioner may seek the same provisional
remedies by verified motion filed in the same action or
proceeding at any time during its pendency.
Rule 37 mentions 2 remedies: MR and MNT
When do you use MR? When do you use MNT? Depending
upon the grounds available
MNT grounds: 1. Fraud, accident, mistake or excusable
negligence which ordinary prudence could not have guarded
against and by reason of which such aggrieved party has
probably been impaired in his rights
Illustration: Suppose nagrereklamo ka, natalo ka, sabi mo,
nadaya ako ng kabila kasi sabi nya di nako dadalo sa hearing
kasi ididismiss daw nya yung kaso. Yun pala di totoo yun.
Kaya natalo ako sa kaso coz i was not able to participate in the
proceeding. I am a victim of fraud. I could file an MNT.
2. Newly discovered evidence, which he could not,
with reasonable diligence, have discovered, and

produced at the trial, and which if presented would
probably alter the result.
Illustration: suppose after the trial and the judgment was
rendered where you lost the case. 3 days after, you found
evidence which with reasonable diligence was not found
before. And if presented in the trial could have actually altered
the results of the case. File MNT. Newly-discovered evidence
is not a forgotten evidence. This is an evidence that was not
available before and could not have been discovered with due
diligence even during the trial but was only discovered after
the trial.
MR: grounds:
the damages awarded are excessive,
that the evidence is insufficient to justify the decision
or final order, or that
the decision or final order is contrary to law
Word of caution: the grounds for MR are errors of judgment;
these are also grounds for appeal but the Rules give you a
shorter route since MR is not as extensive as an appeal.
The grounds for MNT are not errors of judgment; they are
matters outside the trial that prevented you from fully
participating in the proceedings.
Within what period do you file MR/MNT? Within the period
to appeal. 15 days from notice of judgment or final order; but
sometimes it could be 30 days i.e. in special proceedings
appeal except habeas corpus which is 48 hours.
Also in some special civil actions where there are several
stages of judgment they are subject to multiple appeals. For
instance, in expropriation proceedings, the first judgment is on
WON plaintiff govt agency has the right to expropriate; that
is appealable. The 2nd judgment is on the compensation; that is
appealable. The period to appeal here is 30 days because the
judgments are subject to multiple appeals.
Multiple appeals does not mean many people appealing. It
means a case with several stages of judgment, each stage is
subject to appeal.
Illustration: D received a notice of judgment on April 1,
meaning he has up to April 16 to file MR/MNT/Appeal. He
decided to file MR. On the 10th day he filed an MR. The MR
was denied on May 5. The notice of denial was received by
him on May 15. Can D appeal from the order of denial of my
MR? No. D can appeal but will appeal from the judgment and
not from the order of denial. Ang judgment ang i-appeal mo
not the order of denial.
Rule 37, SECTION 9. Remedy Against Order Denying a
Motion for New Trial or Reconsideration. An order
Dean Rianos Lecture 2014 33
denying a motion for new trial or reconsideration is not
appealable, the remedy being an appeal from the judgment or
final order.
- So, if it is denied, you cannot appeal from the order of
the denial of MR.
- Can you file a Petition for certiorari against the order of
denial? Before December 2007, Yes. After December
2007, no more, the Rules have been amended. So, your
remedy for the denial of MR/MNT is to appeal from the
judgment itself.
- So in the illustration, you received the notice of denial on
May 15. Do you have only 5 days more to file a notice of
appeal? No. You have a fresh period of 15 days. Neypes
v. CA on September 14, 2005. SC said that the period of
appeal is not only 15 days from notice of judgment but
also 15 days from notice of final order.
- If you did not file an MR/MNT, your period of appeal is
from notice of judgment. But if you filed an MR/MNT
and it is denied, that denial is a final order. When you
received that order it is notice of final order. And the
period for appeal is not only 15 days from notice of
judgment but also 15 days from notice of final order.
Rule 41, SECTION 3. Period of Ordinary Appeal. The
appeal shall be taken within fifteen (15) days from
notice of the judgment or final order appealed from. Where a
record on appeal is required, the appellant shall file a
notice of appeal and a record on appeal within thirty (30) days
from notice of the judgment or final order.
The period of appeal shall be interrupted by a timely motion
for new trial or reconsideration. No motion for
extension of time to file a motion for new trial or
reconsideration shall be allowed. (n)
Neypes Rule is a civil case. SC said that it applies to all civil
cases: Rule 40, 41, 42, 43, and 45.
** The right to appeal is not a constitutional, natural or
inherent right it is a statutory privilege and of statutory
origin and, therefore, available only if granted or as provided
by statutes. It may be exercised only in the manner prescribed
by the provisions of the law. 14 The period to appeal is
specifically governed by Section 39 of Batas Pambansa
Blg. 129 (BP 129), 15 as amended, Section 3 of Rule 41 of the
1997 Rules of Civil Procedure, and Section 6 of Rule 122 of
the Revised Rules of Criminal Procedure.
Section 39 of BP 129, as amended, provides:
SEC. 39. Appeals. The period for
appeal from final orders, resolutions,
awards, judgments, or decisions of any
court in all cases shall be fifteen (15) days
counted from the notice of the final order,
resolution, award, judgment, or decision
appealed from: Provided, however, That
in habeas corpus cases, the period for

appeal shall be forty-eight (48) hours from
the notice of the judgment appealed from.
Section 3, Rule 41 of the 1997 Rules of Civil Procedure
states: CAIaHS
SEC. 3. Period of ordinary appeal.
The appeal shall be taken within fifteen
(15) days from notice of the judgment or
final order appealed from. Where a record
on appeal is required, the appellant shall
file a notice of appeal and a record on
appeal within thirty (30) days from notice
of the judgment or final order.
The period of appeal shall be
interrupted by a timely motion for new
trial or reconsideration. No motion for
extension of time to file a motion for new
trial or reconsideration shall be allowed.
Section 6, Rule 122 of the Revised Rules of Criminal
Procedure reads:
SEC. 6. When appeal to be taken. An
appeal must be taken within fifteen (15)
days from promulgation of the judgment
or from notice of the final order appealed
from. This period for perfecting an
appeal shall be suspended from the
time a motion for new trial or
reconsideration is filed until notice of
the order overruling the motion has
been served upon the accused or his
counsel at which time the balance of the
period begins to run.
In Neypes, the Court modified the rule in civil cases on the
counting of the 15-day period within which to appeal. The
Court categorically set a fresh period of 15 days from a
denial of a motion for reconsideration within which to
appeal, thus:
The Supreme Court may promulgate
procedural rules in all courts. It has the
sole prerogative to amend, repeal or even
establish new rules for a more simplified
and inexpensive process, and the speedy
disposition of cases. In the rules
governing appeals to it and to the Court of
Appeals, particularly Rules 42, 43 and 45,
the Court allows extensions of time, based
on justifiable and compelling reasons, for
parties to file their appeals. These
extensions may consist of 15 days or
more.
To standardize the appeal periods
provided in the Rules and to afford
litigants fair opportunity to appeal their
cases, the Court deems it practical to
allow a fresh period of 15 days within
which to file the notice of appeal in the
Regional Trial Court, counted from
receipt of the order dismissing a motion
Dean Rianos Lecture 2014 34
for a new trial or motion for
reconsideration.
Henceforth, this "fresh period rule"
shall also apply to Rule 40 governing
appeals from the Municipal Trial
Courts to the Regional Trial Courts;
Rule 42 on petitions for review from the
Regional Trial Courts to the Court of
Appeals; Rule 43 on appeals from
quasi-judicial agencies to the Court of
Appeals and Rule 45 governing appeals
by certiorari to the Supreme Court. The
new rule aims to regiment or make the
appeal period uniform, to be counted from
receipt of the order denying the motion for
new trial, motion for reconsideration
(whether full or partial) or any final order
or resolution.
The Court also reiterated its ruling that it is the denial of the
motion for reconsideration that constituted the final order
which finally disposed of the issues involved in the case.
The raison d'tre for the "fresh period rule" is to standardize
the appeal period provided in the Rules and do away with the
confusion as to when the 15-day appeal period should be
counted. Thus, the 15-day period to appeal is no longer
interrupted by the filing of a motion for new trial or motion for
reconsideration; litigants today need not concern themselves
with counting the balance of the 15-day period to appeal since
the 15-day period is now counted from receipt of the order
dismissing a motion for new trial or motion for
reconsideration or any final order or resolution.
While Neypes involved the period to appeal in civil cases, the
Court's pronouncement of a "fresh period" to appeal should
equally apply to the period for appeal in criminal cases under
Section 6 of Rule 122 of the Revised Rules of Criminal
Procedure, for the following reasons:
First, BP 129, as amended, the substantive law on which the
Rules of Court is based, makes no distinction between the
periods to appeal in a civil case and in a criminal case. Section
39 of BP 129 categorically states that "[t]he period for appeal
from final orders, resolutions, awards, judgments, or decisions
of any court in all cases shall be fifteen (15) days counted
from the notice of the final order, resolution, award, judgment,
or decision appealed from." Ubi lex non distinguit nec nos
distinguere debemos. When the law makes no distinction, we
(this Court) also ought not to recognize any distinction.
Second, the provisions of Section 3 of Rule 41 of the 1997
Rules of Civil Procedure and Section 6 of Rule 122 of the
Revised Rules of Criminal Procedure, though differently
worded, mean exactly the same. There is no substantial
difference between the two provisions insofar as legal results
are concerned the appeal period stops running upon the
filing of a motion for new trial or reconsideration and starts to
run again upon receipt of the order denying said motion for
new trial or reconsideration. It was this situation
 Dean Rianos Lecture 2014 35

that Neypes addressed in civil cases. No reason exists why this 2005, the date of receipt of notice denying her motion for new
situation in criminal cases cannot be similarly addressed. trial. CDTSEI
Third, while the Court did not consider in Neypes the ordinary ||| (Yu v. Samson-Tatad, G.R. No. 170979, February 09, 2011)
appeal period in criminal cases under Section 6, Rule 122 of
the Revised Rules of Criminal Procedure since it involved a
purely civil case, it did include Rule 42 of the 1997 Rules of By the way, the MR can only be filed by the same party once.
Civil Procedure on petitions for review from the RTCs to the An MNT could be filed 2x as long as the ground for the 2 nd
Court of Appeals (CA), and Rule 45 of the 1997 Rules of Civil MNT was not available when the first MNT was filed. But an
Procedure governing appeals by certiorari to this Court, both MR can only be filed once even if on appeal. But this rule on
of which also apply to appeals in criminal cases, as provided appeal is not an absolute rule because the SC can entertain
by Section 3 of Rule 122 of the Revised Rules of Criminal even 2 or 3 MRs. Reason: SC has the power to suspend a rule
Procedure, thus: depending on the merits of the case.
SEC. 3. How appeal taken. . . .
(b) The appeal to the Court of Appeals in APPEAL
cases decided by the Regional Trial Court - A statutory right only. Not a natural nor a constitutional
in the exercise of its appellate jurisdiction right.
shall be by petition for review under Rule
How can appeal be used in a bar exam? Well, in a very
42.
simple way. It can ask you the remedies. So you have to go
xxx xxx xxx on the basic rules on appeal.
(e) Except as provided in the last RULE 41, SECTION 1. Subject of Appeal. An appeal
paragraph of section 13, Rule 124, all may be taken from a judgment or final order that completely
other appeals to the Supreme Court shall disposes of the case, or of a particular matter therein when
be by petition for review declared by these Rules to be appealable. cIDHSC
on certiorariunder Rule 45.
No appeal may be taken from:
Clearly, if the modes of appeal to the CA (in cases where the
RTC exercised its appellate jurisdiction) and to this Court in (a) An order denying a petition for relief
civil and criminal cases are the same, no cogent reason exists or any similar motion seeking
why the periods to appeal from the RTC (in the exercise of its relief from judgment;
original jurisdiction) to the CA in civil and criminal cases (b) An interlocutory order;
under Section 3 of Rule 41 of the 1997 Rules of Civil
(c) An order disallowing or dismissing an
Procedure and Section 6 of Rule 122 of the Revised Rules of
appeal;
Criminal Procedure should be treated differently.
(d) An order denying a motion to set aside
Were we to strictly interpret the "fresh period rule"
a judgment by consent,
in Neypes and make it applicable only to the period to appeal confession or compromise on the
in civil cases, we shall effectively foster and encourage an
ground of fraud, mistake or
absurd situation where a litigant in a civil case will have a
duress, or any other ground
better right to appeal than an accused in a criminal case a
vitiating consent;
situation that gives undue favor to civil litigants and unjustly
discriminates against the accused-appellants. It suggests (e) An order of execution;
a double standard of treatment when we favor a situation (f) A judgment or final order for or
where property interests are at stake, as against a situation against one or more of several
where liberty stands to be prejudiced. We must emphatically parties or in separate claims,
reject this double and unequal standard for being contrary to counterclaims, cross-claims and
reason. Over time, courts have recognized with almost third-party complaints, while the
pedantic adherence that what is contrary to reason is not main case is pending, unless
allowed in law Quod est inconveniens, aut contra rationem the court allows an appeal
non permissum est in lege. 18 therefrom; and
Thus, we agree with the OSG's view that if a delay in the (g) An order dismissing an action without
filing of an appeal may be excused on grounds of substantial prejudice.
justice in civil actions, with more reason should the same
In any of the foregoing circumstances, the aggrieved party
treatment be accorded to the accused in seeking the review on
may file an appropriate special civil action as provided in Rule
appeal of a criminal case where no less than the liberty of the
65.
accused is at stake. The concern and the protection we must
extend to matters of liberty cannot be overstated. - You have to remember those matters that cannot be
In light of these legal realities, we hold that the petitioner appealed.
seasonably filed her notice of appeal on November 16, 2005, - So if you cannot appeal, the remedy is Rule 65:
within the fresh period of 15 days, counted from November 3, certiorari, prohibition and mandamus.

- If the judgment or final order is appealable, DO NOT
USE Rule 65. The remedy is appeal
- But if not appealable, you can use Rule 65
- Those enumerated from a g, not appealable, thus the
remedy is Rule 65.
- Illustrations:
1. A judgment became final and executory.
The winning party files a motion for the
issuance of a writ of execution. But the court
denied it without valid reason. Is that order
of denial appealable? No. There is no rule
which provides for its appeal. Therefore, use
Rule 65. Mandamus, because execution
becomes a matter of right the moment the
judgment becomes final and executory.
2. The judgment has not become final and
executory. But the court ordered the
execution of that judgment. Can you appeal
from its order? Sec. 1 of Rule 41. (e) An
order of execution; x x x So, go to Rule 65.
Certiorari and/or Prohibition
3. I filed a complaint but I forgot according to
the court to include the certification against
forum shopping. Upon motion, the court
dismissed my complaint. I said, there was
substantial compliance because my
certification was incorporated in the
paragraphs of my complaint. The court
disagreed. So my case was dismissed. Is my
remedy an appeal or Rule 65? You have to
ask: Is the dismissal with prejudice or not?
Refer to Sec. 5 of Rule 7: x x x Failure to
comply with the foregoing requirements
shall not be curable by mere
amendment of the complaint or other
initiatory pleading but shall be cause for the
dismissal of the case without prejudice,
unless otherwise provided, upon motion and
after hearing. The submission of a false
certification or non-compliance with
any ofthe undertakings therein shall
constitute indirect contempt of court,
without prejudice to the corresponding
administrative and criminal actions. If the
acts of the party or his counsel clearly
constitute willful and deliberate forum
shopping, the same shall be ground for
summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause
for administrative sanctions.
An order dismissing a case without prejudice is
not appealable. Thus, the remedy is Rule 65.
4. A complaint was filed in RTC. I filed a
MTD on the ground of improper venue. The
court denied. I filed an MR but also denied.
Can I appeal from that denial or Rule 65?
Dean Rianos Lecture 2014 36
Certiorari. The order of the court is not a
final order but only an interlocutory order
which does not give an end to the case. You
may also add Prohibition.
5. The case was filed in RTC. I filed MTD on
the ground of improper venue. It was
dismissed. The plaintiff did not agree with
the dismissal. What is the remedy of the
plaintiff? Let me guide you, the dismissal on
improper venue without prejudice. The
remedy is Rule 65.
6. Suppose the plaintiffs case was dismissed
on the ground of lack of jurisdiction. Can
Plaintiff re-file it? Yes. Thus, the dismissal
was without prejudice. Thus the remedy is
certiorari.
N.B. Pag na-dismiss yung kaso at pwede pang i-refile, without
prejudice ang dismissal.
Kung di ka sumasang-ayon sa hukuman, i-certiorari mo sya,
hindi appeal.
7. I filed MTD on a case on the ground of res
judicata. The case was dismissed. Plaintiff
did not agree on that ground. Plaintiffs
remedy is appeal because the dismissal here
is with prejudice as re-filing is precluded.
Rule 16. SECTION 5. Effect of Dismissal.
Subject to the right of appeal, an order
granting a motion to dismiss based on
paragraphs (f), (h) and (i) of Section 1
hereof shall bar the refiling of the same
action or claim.
8. Plaintiffs case was dismissed due to his
non-appearance during pre-trial. Whats the
remedy? Rule 18, SECTION
5. Effect of Failure to Appear. The
failure of the plaintiff to appear when so
required pursuant to the next preceding
section shall be cause for dismissalof the
action. The dismissal shall be with
prejudice, unless otherwise ordered by
the court. A similar failure on the part of the
defendant shall be cause to allow the
plaintiff to present his evidence ex parte and
the court to render judgment on the basis
thereof
So the remedy is to Appeal.
9. During the pre-trial, the parties agreed for an
amicable settlement. They submitted their
amicable settlement to the court. So the
court rendered a judgment on the
compromise. But one party said that he
agreed to the compromise because he was a

victim of intimidation. So he filed a motion
to set aside the judgment on the compromise
on the ground that he was intimidated only.
It was denied. Whats his remedy? Rule 65.
10. I filed a petition for relief. Denied. I dont
agree with the court. Remedy? Rule 65.
But the more difficult one there is yung with prejudice or yung
without prejudice. Kaya if nabasa nyo sa Rules adjudication
on the merits- that means with prejudice na ha. Ang mantra
mo ay easy lang:
With prejudice appeal
Without prejudice Rule 65.
11. My case was dismissed against Mr. X
because my case was unenforceable under
the Statute of Frauds. Remedy? Appeal
because if a case was dismissed based on a
statute of frauds you cannot re-file it. So,
appeal. It is part of Sec. 5 of Rule 16.
In the modes of appeal, you dont need to memorize all the
provisions. Just look at the way the mode of appeal has been
done.
FROM MTC TO RTC
Illustration: 1. You came from MTC, you lost the case. How
do you appeal? Appeal to RTC which has jurisdiction over
MTC. File a Notice of Appeal. File it in the MTC. Pay the
appellate docket fee to the MTC then the MTC Clerk of Court
will forward it to the RTC including all the records.
3. When is the judgment of MTC appealable to CA and
not RTC? When MTC exercises its delegated
jurisdiction in cadastral cases, it is an RTC in soul
and spirit; it is acting as an RTC ^_^ (huwag nyong
gamitin sa bar ang soul and spirit)
FROM RTC
RTC exercises 2 types of jurisdiction:
1. Original : when the case is first filed to it
2. Appellate: when it decides on a case originated from
MTC then appealed to it
Illustration:
a. The case was an action for a specific performance.
Which court has jurisdiction? RTC. Now, RTC
decides on the case and I lost. How do I Appeal? Use
Rule 41. Just like in the MTC, I am going to file a
notice of appeal to RTC. I will pay appellate docket
fees also in RTC. That is how to appeal when in the
exercise of original jurisdiction.
b. But when the appeal is only on a pure question of law
from the judgment of RTC exercising original
jurisdiction, I dont file notice of appeal. I file a
Dean Rianos Lecture 2014 37
petition for review on certiorari under Rule 45 and I
go directly to the SC.
c. Suppose that from the original jurisdiction of RTC
you want to raise questions of facts only, you go to
CA under Rule 41.
d. Suppose you want to raise mix questions of fact and
law, still to the CA under Rule 41.
e. Suppose you want to raise only questions of law, do
not use Rule 41, instead go to Rule 45 to SC.
RTC TO CA
Illustration:
1. You lost in MTC then you appealed to RTC. Then you lost
again in the RTC exercising its appellate jurisdiction. You
want to appeal now to the CA. Mode of Appeal here is
Petition for Review under Rule 42. Bayad mo sa CA.
2. You lost in MTC then you appealed to RTC. Then you lost
again in the RTC exercising its appellate jurisdiction. Now,
you just want to raise pure questions of law. Where do you go
to? Not in SC. Dun ka pa rin sa Rule 42. Therefore, CA can
also deal with pure questions of law provided that the
judgment of the RTC is in the exercise of its appellate
jurisdiction. But when judgment of the RTC is in the exercise
of its original jurisdiction, you want to raise pure questions of
law, you go to SC.
CA
-CA does have original jurisdiction: Annulment of Judgment
-how to appeal when CA renders judgment? Rule 45 to SC,
questions of law only. Do not raise issues of grave abuse of
discretion as that is for Rule 65. -now, if you came from
Sandiganbayan, you also go to SC, not CA. Use Rule 45-
Questions of Law. If you use Rule 65 it is not on questions of
law but on Jurisdiction based on grave abuse of discretion
amounting to lack or excess of jurisdiction.
Sometimes in Rule 45, SC can deal with questions of fact. One
of the exceptions is if the findings of facts of RTC is not the
same with the findings of facts of CA. So SC determines
which is accurate.
But are there specific rules where a person is authorized to go
to SC on question of facts? Yes. There are exceptional rules.
For instance, in a Petition for writ of amparo. Petition for writ
of habeas data. Writ of Kalikasan.
THE RULE ON THE WRIT OF AMPARO

SECTION 19. Appeal. Any party may appeal from the final
judgment or order to the Supreme Court under Rule 45. The
appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) working days from the
date of notice of the adverse judgment.
The appeal shall be given the same priority as in habeas
corpus cases
THE RULE ON THE WRIT OF HABEAS DATA
SECTION 19. Appeal. Any party may appeal from the
judgment or final order to the Supreme Court under Rule 45.
The appeal may raise questions of fact or law or both.
The period of appeal shall be five (5) work days from the
date of notice of the judgment or final order.
The appeal shall be given the same priority as habeas
corpus and amparo cases.
Writ of Kalikasan, Rule 7, SECTION
16.Appeal. Within fifteen (15) days from the
date of notice of the adverse judgment or denial of motion
for reconsideration, any party may appeal to the Supreme
Court under Rule 45 of the Rules of Court. The appeal
may raise questions of fact.
Ito ang mga exceptions sa general rule sa Rule 45 na only
questions of law.
Now you come from administrative bodies or from quasi-
judicial bodies. Is there a mode of appeal therefrom? I am
talking about those bodies and agencies enumerated in Rule
43. Need not memorize those or else suffer in mental
constipation @.@ Where do you go? CA. This appeal on Rule
43 is called Petition for Review under Rule 43.
Rule 40, MTC to RTC
Rule 41, RTC original to CA (no pure question of law)
Rule 42, RTC appellate to CA
Rule 65, questions on jurisdiction.
Illustration: Nag-final ka nag administrative case sa Office of
the President. Talo ka dun. Rule 43 to CA. Talo ka sa CA.
Punta ka SC under Rule 45 only on questions of law. Talo ka
sa SC, ano remedy? MR under Rule 52 in re Rule 56. How
many times can you file MR? Only once. Sec. 2 of Rule 52. If
MR is directed against judgment, only once. If MR is directed
against interlocutory order, as many times as the judge allows.
Galing ka sa CSC. Talo ka there. Where to go? To the CA
under Rule 43. CSC is an independent constitutional
institution together with COMELEC and COA. What is the
mode of appeal from the judgment of COMELEC and COA?
There is no mode of appeal but only a mode of review called
Dean Rianos Lecture 2014 38
Petition for Certiorari, a special civil action (like filing a new
action) To the SC under Rule 64 in re Rule 65.
On the other hand, there is a Mode of appeal from CSC to the
CA.
The word CTA in Rule 43 is misplaced. RA 9282, CTA now
has an equal rank as that of CA. You do not appeal to a court
of equal rank. This is what you do in CTA. The CTA has
divisions. The judgment by division will be elevated to CTA
en banc. Then from en banc you can go to SC under Rule 45.
Its like the CA to SC.
Rule 45, SECTION 9. Rule Applicable to Both Civil and
Criminal Cases. The mode of appeal prescribed in this
Rule shall be applicable to both civil and criminal cases,
except in criminal cases where the penalty imposed is
death, reclusion perpetua or life imprisonment. (n)
- In other words, Rule 45 also applies to criminal cases.
There is only one mode of appeal to the SC as a general
rule.
- There is only one instance when you go to SC by filing a
notice of appeal to the CA. Rule 124,
RULE 122
Appeal
SECTION 3. How Appeal Taken.
(a) 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.
xxx
(c) The appeal to the Supreme Court in
cases where the penalty imposed by the
Regional Trial Court is death, 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
filing a notice of appeal in accordance
with paragraph (a) of this section
||| (Revised Rules of Criminal Procedure, A.M. No. 00-5-03-SC
[2000])

From NLRC, is there a mode of appeal? None. But there is a
mode of review. Go to CA by Rule 65 not a mode of appeal.
1. REMEDIAL LAW; SPECIAL CIVIL
ACTION; CERTIORARI; REGLEMENTARY PERIOD;
SIXTY DAYS DESPITE LAPSE OF THE 10-DAY PERIOD
FOR FINALITY OF THE DECISION OF THE NLRC. . . .
the remedy of the aggrieved party is to timely file a motion for
reconsideration as a precondition for any further or subsequent
remedy, and then seasonably avail of the special civil action
of certiorari under Rule 65, for which said Rule has now fixed
the reglementary period of sixty days from notice of the
decision. Curiously, although the 10-day period for finality of
the decision of the NLRC may already have lapsed as
contemplated in Section 223 of the Labor Code, it has been
held that this Court may still take cognizance of the petition
for certiorari on jurisdictional and due process considerations
if filed within the reglementary period under Rule 65.
2. ID.; ID.; ID.; MODE OF JUDICIAL REVIEW OVER
DECISIONS OF THE NLRC. Therefore, all references in
the amended Section 9 of B.P. No. 129 to supposed appeals
from the NLRC to the Supreme Court are interpreted and
hereby declared to mean and refer to petitions
for certiorari under Rule 65. Consequently, all such petitions
should henceforth be initially filed in the Court of Appeals in
strict observance of the doctrine on the hierarchy of courts as
the appropriate forum for the relief desired.
||| (St. Martin Home v. NLRC, G.R. No. 130866, September 16,
1998)
From the Office of the Ombudsman. There are 2 kinds of cases
handled by the Ombudsman. Administrative/Disciplinary
cases and Criminal cases.
If you lose in the Ombudsman in the administrative case, go to
the CA by Rule 43.
If you lose in the Ombudsman in the criminal case, go to the
SC by Rule 65.
1. ADMINISTRATIVE LAW; SECTION 27 OF R.A. 6770;
OMBUDSMAN ACT OF 1989. We will merely observe
and lay down the rule at this juncture that Section 27
of Republic Act No. 6770 is involved only whenever an
appeal by certiorari under Rule 45 is taken from a decision in
an administrative disciplinary action. It cannot be taken into
account where an original action for certiorari under Rule 65
is resorted to as a remedy for judicial review, such as from an
incident in a criminal action. EScHDA
2. ID.; ADMINISTRATIVE LIABILITY OF PUBLIC
OFFICIAL FALLS UNDER THE JURISDICTION OF
BOTH THE CIVIL SERVICE COMMISSION AND THE
OFFICE OF THE OMBUDSMAN; CASE AT BAR. After
respondents' separate comments had been filed, the Court was
intrigued by the fact, which does not appear to have been
seriously considered before, that the administrative liability of
a public official could fall under the jurisdiction of both the
Civil Service Commission and the Office of the Ombudsman.
Thus, the offenses imputed to herein private respondent were
Dean Rianos Lecture 2014 39
based on both Section 19 ofRepublic Act No. 6770 and
Section 36 of Presidential Decree No. 807. Yet, pursuant to
the amendment of Section 9, Batas Pambansa Blg.
129 by Republic Act No. 7902, all adjudications by the Civil
Service Commission in administrative disciplinary cases were
made appealable to the Court of Appeals effective March 18,
1995, while those of the Office of the Ombudsman are
appealable to this Court. It could thus be possible that in the
same administrative case involving two respondents, the
proceedings against one could eventually have been elevated
to the Court of Appeals, while the other may have found its
way to the Ombudsman from which it is sought to be brought
to this Court. Yet systematic and efficient case management
would dictate the consolidation of those cases in the Court of
Appeals, both for expediency and to avoid possible conflicting
decisions.
3. REMEDIAL LAW; CIVIL PROCEDURE;
JURISDICTION; RULE THAT A CHALLENGE ON
CONSTITUTIONAL GROUNDS MUST BE RAISED BY A
PARTY TO THE CASE; NOT AN INFLEXIBLE RULE.
Then there is the consideration that Section 30, Article VI of
the 1987 Constitution provides that "(n)o law shall be passed
increasing the appellate jurisdiction of the Supreme Court as
provided in this Constitution without its advise and consent,"
and that Republic Act No. 6770, with its challenged Section
27, took effect on November 17, 1989, obviously in spite of
that constitutional prohibition. The conventional rule,
however, is that a challenge on constitutional grounds must be
raised by a party to the case, neither of whom did so in this
case, but that is not an inflexible rule, as we shall explain.
Since the constitution is intended for the observance of the
judiciary and other departments of the government and the
judges are sworn to support its provisions, the courts are not at
liberty to overlook or disregard its commands or countenance
evasions thereof. When it is clear that a statute transgresses the
authority vested in a legislative body, it is the duty of the
courts to declare that the constitution, and not the statute,
governs in a case before them for judgment.
4. ID.; ID.; ID.; THE COURT EX MERO MOTU MAY TAKE
COGNIZANCE OF LACK OF JURISDICTION AT ANY
POINT IN THE CASE WHERE THE FACT IS
DEVELOPED. While courts will not ordinarily pass upon
constitutional questions which are not raised in the pleadings,
the rule has been recognized to admit of certain exceptions. It
does not preclude a court from inquiring into its own
jurisdiction or compel it to enter a judgment that it lacks
jurisdiction to enter. If a statute on which a court's jurisdiction
in a proceeding depends is unconstitutional, the court has no
jurisdiction in the proceeding, and since it may determine
whether or not it has jurisdiction, it necessarily follows that it
may inquire into the constitutionality of the statute.
Constitutional questions, not raised in the regular and orderly
procedure in the trial are ordinarily rejected unless the
jurisdiction of the court below or that of the appellate court is
involved in which case it may be raised at any time or on the
court's own motion. The Court ex mero motu may take
cognizance of lack of jurisdiction at any point in the case
where that fact is developed. The court has a clearly
recognized right to determine its own jurisdiction in any
proceeding. HCEcaT

5. ID.; ID.; ID.; SECTION 27 OF R.A. No. 6770 SPECIFIES
THAT APPELLATE JURISDICTION OF THE SUPREME
COURT IS TO BE EXERCISED OVER "FINAL
JUDGMENTS AND ORDERS OF LOWER COURTS,"
COMPOSING THE INTEGRATED JUDICIAL SYSTEM.
The very provision cited by petitioner specifies that the
appellate jurisdiction of this Court contemplated therein is to
be exercised over "final judgments and orders of lower
courts," that is, the courts composing the integrated judicial
system. It does not include the quasi-judicial bodies or
agencies, hence whenever the legislature intends that the
decisions or resolutions of the quasi-judicial agency shall be
reviewable by the Supreme Court or the Court of Appeals, as
specific provision to that effect is included in the law creating
that quasi-judicial agency and, for that matter, any special
statutory court. No such provision on appellate procedure is
required for the regular courts of the integrated judicial system
because they are what are referred to and already provided for
in Section 5, Article VIII of the Constitution.
6. ID.; ID.; APPEALS; THE REVISED RULES OF CIVIL
PROCEDURE PRECLUDE APPEALS FROM QUASI-
JUDICIAL AGENCIES TO THE SUPREME COURT
VIARULE 45. Apropos to the foregoing, and as correctly
observed by private respondent, the Revised Rules of Civil
Procedure preclude appeals from quasi-judicial agencies to the
Supreme Court via a petition for review
on certiorari under Rule 45. This differs from the
former Rule 45 of the 1964 Rules of Court which made
mention only of the Court of Appeals, and had to be adopted
in statutes creating and providing for appeals from certain
administrative or quasi-judicial agencies, whenever the
purpose was to restrict the scope of the appeal to questions of
law. Under the present Rule 45, appeals may be brought
through a petition for review on certiorari but only from
judgments and final orders of the courts enumerated in Section
1 thereof. Appeals from judgments and final orders of quasi-
judicial agencies are now required to be brought to the Court
of Appeals on a verified petition for review, under the
requirements and conditions in Rule 43 which was precisely
formulated and adopted to provide for a uniform rule of
appellate procedure for quasi-judicial agencies. EDATSI
7. ID.; ID.; JURISDICTION; JURISDICTION OF A COURT
IS NOT A QUESTION OF ACQUIESCENCE BUT AN
ISSUE OF CONFERMENT. The submission that because
this Court has taken cognizance of cases involving Section 27
of Republic Act No. 6770, that fact may be viewed as
"acquiescence" or "acceptance" by it of the appellate
jurisdiction contemplated in said Section 27, is unfortunately
too tenuous. The jurisdiction of a court is not a question of
acquiescence as a matter of fact but an issue of conferment as
a matter of law. Besides, we have already discussed the cases
referred to, including the inaccuracies of some statements
therein, and we have pointed out the instances when Rule 45 is
involved, hence covered by Section 27 of Republic Act No.
6770 now under discussion, and when that provision would
not apply if it is a judicial review under Rule 65.
8. ID.; ID.; ID.; THE SUPREME COURT CAN RULE ON
MATTER SUA SPONTE WHEN ITS APPELLATE
JURISDICTION IS INVOLVED. Private respondent
invokes the rule that courts generally avoid having to decide a
Dean Rianos Lecture 2014 40
constitutional question, especially when the case can be
decided on other grounds. As a general proposition that is
correct. Here, however, there is an actual case susceptible of
judicial determination. Also, the constitutional question, at the
instance of this Court, was raised by the proper parties,
although there was even no need for that because the Court
can rule on the matter sua spontewhen its appellate
jurisdiction is involved. The constitutional question was
timely raised, although it could even be raised any time
likewise by reason of the jurisdictional issue confronting the
Court. Finally, the resolution of the constitutional issue here is
obviously necessary for the resolution of the present case.
9. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF
LAWS; SECTION 27 OF R.A. 6770 VIOLATES THE
CONSTITUTIONAL PROSCRIPTION AGAINST LAWS
INCREASING THE APPELLATE JURISDICTION OF THE
SUPREME COURT. Taking all the foregoing
circumstances in their true legal roles and effects, therefore,
Section 27 of Republic Act No. 6770 cannot validly authorize
an appeal to this Court from decisions of the Office of the
Ombudsman in administrative disciplinary cases. It
consequently violates the proscription in Section 30, Article
VI of the Constitution against a law which increases
theappellate jurisdiction of this Court. No countervailing
argument has been cogently presented to justify such disregard
of the constitutional prohibition which was intended to give
this Court a measure of control over cases placed under its
appellate jurisdiction. Otherwise, the indiscriminate enactment
of legislation enlarging its appellate jurisdiction would
unnecessarily burden the Court. IDScTE
10. REMEDIAL LAW; SUPREME COURT; RULES
PRESCRIBED FOR THE PRACTICE AND PROCEDURE
OF LOWER COURTS; TEST WHETHER PROCEDURAL
OR SUBSTANTIVE. It will be noted that no definitive line
can be drawn between those rules or statutes which are
procedural, hence within the scope of this Court's rule-making
power, and those which are substantive. In fact, a
particular rule may be procedural in one context and
substantive in another. It is admitted that what is procedural
and what is substantive is frequently a question of great
difficulty. It is not, however, an insurmountable problem if a
rational and pragmatic approach is taken within the context of
our own procedural and jurisdictional system. In determining
whether a rule prescribed by the Supreme Court, for the
practice and procedure of the lower courts, abridges, enlarges,
or modifies any substantive right, the test is whether
therule really regulates procedure, that is, the judicial process
for enforcing rights and duties recognized by substantive
law and for justly administering remedy and redress for a
disregard or infraction of them. If the rule takes away a vested
right, it is not procedural. If the rule creates a right such as the
right to appeal, it may be classified as a substantive matter;
but if it operates as a means of implementing an existing right
then the rule deals merely with procedure.
11. ID.; CASE AT BAR. In the situation under
consideration, a transfer by the Supreme Court, in the exercise
of its rule-making power, of pending cases involving a review
of decisions of the Office of the Ombudsman in administrative
disciplinary actions to the Court of Appeals which shall now

be vested with exclusive appellate jurisdiction thereover,
relates to procedure only. This is so because it is not the right
to appeal of an aggrieved party which is affected by the law.
That right has been preserved. Only the procedure by which
the appeal is to be made or decided has been changed. The
rationale for this is that no litigant has a vested right in a
particular remedy, which may be changed by substitution
without impairing vested rights, hence he can have none in
rules of procedure which relate to the remedy. Furthermore, it
cannot be said that the transfer of appellate jurisdiction to the
Court of Appeals in this case is an act of creating a new right
of appeal because such power of the Supreme Court to transfer
appeals to subordinate appellate courts is purely a procedural
and not a substantive power. Neither can we consider such
transfer as impairing a vested right because the parties have
still a remedy and still a competent tribunal to administer that
remedy. Thus, it has been generally held that rules or statutes
involving a transfer of cases from one court to another, are
procedural and remedial merely and that, as such, they are
applicable to actions pending at the time the statute went into
effect or, in the case at bar, when its invalidity was declared.
Accordingly, even from the standpoint of jurisdiction ex
hypothesi, the validity of the transfer of appeals in said cases
to the Court of Appeals can be sustained. EaHIDC
||| (Fabian v. Desierto, G.R. No. 129742, September 16, 1998)
From Ombudsman, disciplinary case, go to CA under Rule 43.
Then go to SC under Rule 45. <Dean mentioned Rule 124,
Sec. 13(c)>
Practice tayo:
From MTC talo ako, punta sa? RTC, Rule 40
From MTC talo ako, punta sa RTC but natalo utli, punta sa?
CA Rule 42
Eh kung pure question of law sa SC? Rule 42 pa rin kasi in the
exercise of appellate jurisdiction.
MTC RTC R40
RTC CA R42
CA- SC R45 Pag pumunta ka sa SC, Rule 45 yan!
Galing ka sa MTC, talo ka sa mtc, magfafile ka ng appeal sa
RTC? Paano? Notice of Appeal to MTC, pay the fees to MTC
still.
Talo ka sa RTC, anong questions pwede ma-raised papuntang
CA? Questions of facts, mixed questions of facts and laws,
questions of law (pwede kasi appellate eh)
Dean Rianos Lecture 2014 41
Talo ka sa CA from RTC. Pwede ka bang mag-raise questions
of facts and/or mixed questions on facts of law to SC? NO.
Questions of law only under Rule 45.
Nag-file ako ng petition for a writ of amparo sa RTC. Talo
ako. Saan mo iaappeal? Sa SC ka pupunta, yun ang sabi ng
Sec. 19. Can I raise question of facts? Yes. Mga exception
yan. Same with habeas data and writ of kalikasan.
Mula sa CTA division - CTA en banc SC Rule 45 only
questions of law.
All your remedies have been exhausted and you still lost the
case. Do not commit suicide. Life has to go on, ok? The
winning party is now going to reap the fruits of his patience
^_^
Why does Rule 39 say execution and satisfaction of
judgments? Why not only execution? Kasi a judgment may be
satisfied even without execution ^_^ even without a writ of
execution, sometimes the losing party is gentleman enough to
voluntary comply with the judgment. There was a 2002
suggested question: is it possible that the parties can still enter
into compromise even if there is a judgment already? Yes.
Thats not contrary to law or morals. There is no law
prohibiting it.
Can the court motu proprio issue a writ of execution?
RULE 39, SECTION 1. Execution Upon Judgments or
Final Orders. Execution shall issue as a
matter of right, on motion, upon a judgment or order that
disposes of the action or proceeding upon the
expiration of the period to appeal therefrom if no appeal
has been duly perfected. (1a)
If the appeal has been duly perfected and finally resolved, the
execution may forthwith be applied for in the court of origin,
on motion of the judgment obligee, submitting therewith
certified true copies of the judgment or judgments or final
order or orders sought to be enforced and of the entry thereof,
with notice to the adverse party.
The appellate court may, on motion in the same case, when the
interest of justice so requires, direct the court of origin to issue
the writ of execution. (n)
- The rule is a motion on execution is not supposed to be
filed before the judgment becomes final and executory.
During the pendency of the appeal, you shouldnt file the
motion.
Is it possible to have the judgment executed executed pending
appeal? Yes. That concept is the so-called Discretionary
Executions.
SECTION 2. Discretionary Execution.
(a) Execution of a judgment or final order pending appeal.
On motion of the prevailing party with notice to
the adverse party filed in the trial courtwhile it has
jurisdiction over the case and is in
possession of either the original record or the
record on appeal, as the case may be, at the
time of the filing of such motion, said court may, in

its discretion, order execution of a judgment or
final order even before the expiration of the period
to appeal.
After the trial court has lost jurisdiction, the
motion for execution pending appeal may be filed
in the appellate court.
Discretionary execution may only issue upon
good reasons to be stated in a special order after
due hearing.
(b) Execution of several, separate or partial judgments. A
several, separate or partial judgment may be
executed under the same terms and conditions as
execution of a judgment or final order pending
appeal. (2a)
SECTION 3. Stay of Discretionary Execution.
Discretionary execution issued under the preceding section
may be stayed upon approval by the proper court of a
sufficient supersedeas bond filed by the party against whom it
is directed, conditioned upon the performance of the judgment
or order allowed to be executed in case it shall be finally
sustained in whole or in part. The bond thus given may be
proceeded against on motion with notice to the surety. (3a)
- Execution here is not a matter of right but a matter of
discretion by the court. But when the judgment has
become final and executory, execution becomes a matter
of right.
Discretionary executions must be founded on good reasons
stated on the order of the court. The rules do not mention these
good reasons as it is for the judge to determine such.
Examples: one case involving national marketing corporation.
Subject matter was canned goods. Loser party timely
appealed. Winner examined the canned goods and discovered
that they were about to expire. So useless na. So winner filed
motion for execution pending appeal. That is a good reason.
Is the giving of the bond by the winner a good reason in itself
to justify discretionary execution? No. The bond is only an
additional reason. There must be another good reason aside
from the bond.
Is the impending insolvency of the loser a good reason for
execution pending appeal? Yes.
By the way, there are judgments that are immediately
executory upon rendition. You can file the (so still have to
file) motion without waiting for the 15-day period to lapse.
SECTION 4. Judgments Not Stayed by Appeal.
Judgments in actions for injunction, receivership,
accounting and support, and such other judgments as are
now or may hereafter be declared to be immediately
executory, shall be enforceable after their rendition and shall
not be stayed by an appeal taken therefrom, unless
otherwise ordered by the trial court. On appeal therefrom,
the appellate court in its discretion may make an order
Dean Rianos Lecture 2014 42
suspending, modifying, restoring or granting the injunction,
receivership, accounting, or award of support.
The stay of execution shall be upon such terms as to bond or
otherwise as may be considered proper for the security or
protection of the rights of the adverse party.
- The support here is the main action for support and not
the support pendente lite. Support pendente lite is a
provisional remedy.
Is there any other judgment immediately executory? Rule 70,
Forcible Entry and Unlawful Detainer SECTION
19. Immediate Execution of Judgment; How to Stay Same.
If judgment is rendered against the defendant, execution shall
issue immediately upon motion, unless an appeal has been
perfected and the defendant to stay execution files a sufficient
supersedeas bond, approved by the Municipal Trial Court and
executed in favor of the plaintiff to pay the rents, damages,
and costs accruing down to the time of the judgment appealed
from, and unless, during the pendency of the appeal, he
deposits with the appellate court the amount of rent due from
time to time under the contract, if any, as determined by the
judgment of the Municipal Trial Court. In the absence of a
contract, he shall deposit with the Regional Trial Court the
reasonable value of the use and occupation of the premises for
the preceding month or period at the rate determined by the
judgment of the lower court on or before the tenth day of each
succeeding month or period. The supersedeas bond shall be
transmitted by the Municipal Trial Court, with the other
papers, to the clerk of the Regional Trial Court to which the
action is appealed.
All amounts so paid to the appellate court shall be deposited
with said court or authorized government depositary bank, and
shall be held there until the final disposition of the appeal,
unless the court, by agreement of the interested parties, or in
the absence of reasonable grounds of opposition to a motion to
withdraw, or for justifiable reasons, shall decree otherwise.
Should the defendant fail to make the payments above
prescribed from time to time during the pendency of the
appeal, the appellate court, upon motion of the plaintiff, and
upon proof of such failure, shall order the execution of the
judgment appealed from with respect to the
restoration of possession, but such execution shall not be a bar
to the appeal taking its course until the final disposition
thereof on the merits.
After the case is decided by the Regional Trial Court, any
money paid to the court by the defendant for purposes of the
stay of execution shall be disposed of in accordance with the
provisions of the judgment of the Regional Trial Court. In any
case wherein it appears that the defendant has been
deprived of the lawful possession of land or building pending
the appeal by virtue of the execution of the judgment of the
Municipal Trial Court, damages for such
deprivation of possession and restoration of possession may be
allowed the defendant in the judgment of the Regional
Trial Court disposing of the appeal. (8a)
- That means the judgment against the plaintiff is not
immediately executory.

- Now, how do you prevent the execution of the FD/UD
judgment?Immediately perfect an appeal and post a
supersedeas bond.
How do you have the judgment are executed?
By the way, not all of the provisions in Rule 39 are for you.
Some of them are for the sheriff.
SECTION 6. Execution by Motion or by Independent Action.
A final and executory judgment or order may be executed
on motion within five (5) years from the date of its entry.
After the lapse of such time, and before it is barred by the
statute of limitations, a judgment may be enforced by action.
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. (6a)
Two ways by which the judgment is executed?
1. By motion
- 5 years from the entry of judgment (date of finality of the
judgment)
2. By action to revive the judgment
- After 5 years
- Hasnt been asked in the bar!
- An action different from the original action.
- When the judgment is revived it can be executed again
by motion within 5 years from the entry of that revived
judgment. After 5 years, you cannot have it executed by
motion, you file another action to revive the judgment.
- An action to revive the judgment may not be filed in the
same court which rendered the judgment because the
revived judgment has a cause of action different from the
original case. Illustration: if the original action is an
action to collect a sum of money of P300K, that is
cognizable by MTC. The 5-year period lapsed, you file
an action to revive the judgment and you cannot file that
in MTC anymore, because the action to revive the
judgment is by itself an action incapable of pecuniary
estimation so you go to RTC. The venue may even
change as the parties may change residences.
Now there is one important concept in SECTION
9. Execution of Judgments for Money, How Enforced.
(a) Immediate Payment on Demand. The officer shall
enforce an execution of a judgment for money be demanding
from the judgment obligor the immediate payment of the full
amount stated in the writ of execution and all lawful fees. The
judgment obligor shall pay in cash, certified bank check
payable to the judgment obligee, or any other form of payment
acceptable to the latter, the amount of the judgment debt under
proper receipt directly to the judgment obligee or his
authorized representative if present at the time of payment.
The lawful fees shall be handed under proper receipt to the
executing sheriff who shall turn over the said amount within
the same day to the clerk of court of the court that issued the
writ.
If the judgment obligee or his authorized representative is not
present to receive payment, the judgment obligor shall deliver
Dean Rianos Lecture 2014 43
the aforesaid payment to the executing sheriff. The latter shall
turn over all the amounts coming into his possession within
the same day to the clerk of court of the court that issued the
writ, or if the same is not practicable, deposit said amounts to
a fiduciary account in the nearest government depository
bank of the Regional Trial Court of the locality.
The clerk of said court shall thereafter arrange for the
remittance of the deposit to the account of the court that issued
the writ whose clerk of court shall then deliver said payment
to the judgment obligee in satisfaction of the judgment. The
excess, if any, shall be delivered to the judgment obligor while
the lawful fees shall be retained by the clerk of court for
disposition as provided by law. In no case shall the executing
sheriff demand that any payment by check be made payable to
him.
(b) Satisfaction by Levy. If the judgment obligor cannot pay
all or part of the obligation in cash, certified bank check or
other mode of payment acceptable to the judgment obligee,
the officer shall levy upon the properties of the judgment
obligor of every kind and nature whatsoever which may be
disposed of for value and not otherwise exempt from
execution giving the latter the option to immediately choose
which property or part thereof may be levied upon, sufficient
to satisfy the judgment. If the judgment obligor does not
exercise the option, the officer shall first levy on the personal
properties, it any, and then on the real properties if the
personal properties are insufficient to answer for the judgment.
The sheriff shall sell only a sufficient portion of the personal
or real property of the judgment obligor which has been levied
upon.
When there is more property of the judgment obligor than is
sufficient to satisfy the judgment and lawful fees, he must sell
only so much of the personal or real property as is sufficient to
satisfy the judgment and lawful fees.
Real property, stocks, shares, debts, credits, and other personal
property, or any interest in either real or personal property,
may be levied upon in like manner and with like effects as
under a writ of attachment.
(c) Garnishment of Debts and Credits. The officer may
levy on debts due the judgment obligor and other credits,
including bank deposits, financial interests, royalties,
commissions and other personal property not
capable of manual delivery in the possession or
control of third parties. Levy shall be made by serving notice
upon the person owing such debts or having in his possession
or control such credits to which the judgment obligor is
entitled. The garnishment shall cover only such amount as will
satisfy the judgment and all lawful fees.
The garnishee shall make a written report to the court within
five (5) days from service of the notice of garnishment stating
whether or not the judgment obligor has sufficient funds or
credits to satisfy the amount of the judgment. If not, the report
shall state how much funds or credits the garnishee holds for
the judgment obligor. The garnished amount in cash, or
certified bank check issued in the name of the judgment
obligee, shall be delivered directly to the judgment obligee
within ten (10) working days from service of notice on said
garnishee requiring such delivery, except the lawful fees
which shall be paid directly to the court.

In the event there are two or more garnishees holding deposits
or credits sufficient to satisfy the judgment, the judgment
obligor, if available, shall have the right to indicate the
garnishee or garnishees who shall be required to deliver the
amount due; otherwise, the choice shall be made by the
judgment obligee.
The executing sheriff shall observe the same procedure under
paragraph (a) with respect to delivery of payment to the
judgment obligee. (8a, 15a) cdtai
- It can be summarized: the sheriff will go to you with a
writ of execution. He will ask you the amount and the
lawful fees. You have no cash. Sheriff will ask if you
have a check. Remember, the check here could be used
in satisfying the judgment. This is different from
commercial law that you cannot be compelled to accept a
check as payment of the obligation. The rule here is
different because this is not an obligation so the sheriff is
compelled to accept that check. So wala kang cash nor
check, merong properties? Personal properties ang
uunahin. If insufficient, pupunta sa real properties.
Section 10(c) Delivery or Restitution of Real
Property. The officer shall demand of the person
against whom the judgment for the delivery or
restitution of real property is rendered and all persons
claiming rights under him to peaceably vacate the
property within three (3) working days, and restore
possession thereof to the judgment obligee;
otherwise, the officer shall oust all such persons
therefrom with the assistance,
necessary, of appropriate peace officers, and
employing such means as may be reasonably
necessary to retake possession, and place the
judgment obligee in possession of such property. Any
costs, damages, rents or profits awarded by the
judgment shall be satisfied in the same manner as a
judgment for money.
- An action for reconvenyance or in relation to FE/UD.
- Sheryl lost in the case of unlawful detainer. The sheriff
has a writ of execution. Can the sheriff let her
immediately vacate? No. She will be given 3 working
days. If afterwards, she hasnt vacated, can the sheriff
file contempt proceedings against her? No. This will not
be executed by contempt. The sheriff instead will have to
ask the aid of peace officers to let her vacate. Contempt
is not a remedy here.
TRANSCRIPT 6
Rule 39, SECTION 13. Property Exempt from Execution.
Except as otherwise expressly provided by law, the following
property, and no other, shall be exempt from execution:
(a) The judgment obligor's family home as provided by
law, or the homestead in which he resides, and land
necessarily used in connection therewith;
(b) Ordinary tools and implements personally used by him
in his trade, employment, or livelihood;
Dean Rianos Lecture 2014 44
(c) Three horses, or three cows, or three carabaos, or
other beasts of burden, such as the judgment 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 one
hundred thousand pesos;
(f) Provisions for individual or family use sufficient for
four months;
(g) The professional libraries and equipment of judges,
lawyers, physicians, pharmacists, dentists, engineers,
surveyors, clergymen, teachers, and other professionals,
not exceeding three thousand pesos in value;
(h) One fishing boat and accessories not exceeding the
total value of one hundred thousand pesos owned by a
fisherman and by the lawful use ofwhich he earns his
livelihood;
(i) So much of the salaries, wages, or earnings of the
judgment obligor for his personal services within the
four months preceding the levy as are necessary for the
support of his family;
(j) Lettered gravestones;
(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
if
property obtained as such support, or any pension or
gratuity from the Government;
(m) Properties specially exempted by law.
But no article or species of property mentioned in this section
shall be exempt from execution issued upon a judgment
recovered for its price or upon a judgment of foreclosure of a
mortgage thereon. (12a)
- all those enumerated are exempt from execution. The
sheriff cannot get them from you. But take note of the
last paragraph as that would be the instance when the
properties can no longer be considered exempt. Under
the last paragraph its no longer execution. If they are
going to be recovered because of a foreclosure of
mortgage or because they are the subject of a sale, that is
not an execution anymore.
Another important topic is Rule 39, SECTION
16. Proceedings Where Property Claimed by Third Person.
If the property levied on is claimed by any person other than
the judgment obligor 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 the same
upon the officer making the levy and a copy thereof upon the
judgment obligee, the officer shall not be bound to keep the
property, unless such judgment obligee, on demand ofthe
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. Nothing herein contained shall prevent such
claimant or any third person from vindicating his claim to the
property in a separate action, or prevent the judgment obligee
from claiming damages in the same or a separate action
against a third-party claimant who filed a frivolous or plainly
spurious claim.
When the writ of execution 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 or levying officer is sued for damages as a result of the
levy, 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 such
funds as may be appropriated for the purpose. (17a)
Illustration: X v. Y. Y lost in the case. It is the property of Y
which should answer for the execution. But the sheriff is
getting a property of Z. That cannot be done. So the remedy
of Z, not a party to the action, is to file a third-party claim. Not
a third-party complaint which is a pleading. The SC calls that
claim Terceria.
The third person whose property is taken by sheriff can
execute the affidavit. That affidavit is an affidavit of his title
or right to the property. He gives a copy to the sheriff, and to
the creditor. The sheriff would not get that property na. The
moment the sheriff receives the affidavit, that is terceria,
representing a third party claim. But the winning party can
defeat the terceria and ask the sheriff to continue levying the
property if the winning party posts a bond.
The third person can file a case in order to protect his right. He
could file a case against the sheriff. Example: injunction with
damages against the sheriff. Suppose the Manila court issues
the writ of execution; the sheriff and the third party are from
QC; and this is a personal action. So third party can file an
injunction in QC court. Now suppose QC Court issue an
injunction order against the sheriff. Is the QC court interfering
with the power of Manila Court? No. Because that injunction
is not directed against Manila court but against the person of
the sheriff and the sheriff is not the court.
Now, lets say the property has been taken by the sheriff to
answer for the judgment and it has been sold on execution
sale. There is a right of redemption within one year from the
registration of the sale (Sec. 28). Suppose that property is one
that earns income. Within the period of redemption, who has
Dean Rianos Lecture 2014 45
the right to the income i.e. rentals, is it the owner or is it the
purchaser? Owner = judgment obligor
Answer: Rule 39, SECTION 32. Rents, Earnings and
Income of Property Pending Redemption. The purchaser or
a redemptioner shall not be entitled to receive the rents,
earnings and income of the property sold on execution, or the
value of the use and occupation thereof when such property is
in the possession of a tenant. All rents, earnings and income
derived from the property pending redemption shall belong to
the judgment obligor until the expiration of his
period of redemption. (34a)
What if the sheriff does not find any property of the losing
party, what is the remedy of the winner? Winner may apply
for an order in the court and the court will order the losing
party to appear before the court so that he will be asked
questions about the whereabouts of his property. SECTION
36. Examination of Judgment Obligor When Judgment
Unsatisfied. When the return of a writ of execution issued
against property of a judgment obligor, or any one of several
obligors in the same judgment, shows that the judgment
remains unsatisfied, in whole or in part, the judgment obligee,
at any time after such return is made, shall be entitled to an
order from the court which rendered the said judgment,
requiring 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. But no
judgment obligor shall be so required to appear before
a court or commissioner outside the province or city in which
such obligor resides or is found. (38a)
- the court can order him to appear so that he will be
examined as to where his properties are, about his
income.
What are the priorities of Rule 39? Sec. 2 and 6. ^_^
PROVISIONAL REMEDIES
Provisional, because they are not permanent remedies. These
are remedies you availed of in the meantime the main action is
not yet over, not yet been decided by the courts.
What is that prov rem to secure the satisfaction of the
judgment? Preliminary attachment.
What is the effect if you do not avail of this preliminary
attachment? Illustration: You sued the defendant for damages.
You won the case. Under execution, the sheriff is going to ask
the loser the amount the judgment.
Sheriff found no property since defendant disposed of it na.
You won but you have an empty victory. So how do you
prevent this? When you file a complaint, avail also of
preliminary attachment to put the property under custodial
legis, under the custody of the court, so that he cannot dispose
of it anymore.

When you study Rule 57, look very carefully at those
provisions constantly asked, i.e. Sec. 1 and some parts of Sec.
5. Although Sec. 2 and 3 could be potential questions.
You cannot ask for a writ of preliminary attachment in all
cases. The only cases where you can ask for a writ of
preliminary attachment would be those in section 1.
RULE 57
Preliminary Attachment
SECTION 1. Grounds Upon Which Attachment May Issue.
At the commencement of the action or at any time before
entry of judgment, a plaintiff or any proper party may have the
property of the adverse party attached as security for the
satisfaction of any judgment that may be recovered in the
following cases:
(a) 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;
(b) In an action for money or property embezzled or
fraudulently misapplied or converted to his own use by
a public officer, or an officer of a corporation, or an
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;
(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 prevent its being
found or taken by the applicant or an authorized person;
(d) 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;
(e) 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
(f) 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. (1a)
- By the way, you can avail also of the writ of preliminary
action in order to convert the action in personam into an
action quasi-in rem where the defendant is a non-resident
and is outside the Philippines.
- Sample questions: I sued X for damages. And in my
allegations, I was asking for moral damages. I said that X
is about to leave the Philippines with intent to defraud
me. Based on this, will the court grant my writ of
attachment? No. Because you cannot ask for a writ of
prelim attachment where the damages you are recovering
are only moral and exemplary damages.
- Can you ask for a writ of prelim attachment in all actions
in the recovery of sum of money? No. The mere action is
Dean Rianos Lecture 2014 46
not a ground for a writ of prelim attachment. In letter (a),
if you are going to ask for that writ and you are
recovering damages and sum of money, you have to
specify the amount which you cannot do in a moral and
exemplary damages as they are dependent on judicial
discretion.
- Suppose you specify the amount of money you are trying
to recover, you must specifically allege that the
defendant (a) intended to depart from the Philippines
with (b) intent to defraud. Or you allege those in the
subsequent letters in that provision.
- X filed an action to collect sum of money against D. X
alleged that D is on the verge of insolvency. X is now
asking for a writ of preliminary attachment. Court
granted. Is the court correct? No. Insolvency is not a
ground for the issuance of the writ of preliminary
attachment. Be careful of these grounds!
- C sued D for a sum of money. C alleged in his complaint
that D is about to depart from the Philippines. On that
basis, can the court grant it? No. The allegations were
incomplete. It must be shown that his departure was with
intent to defraud him.
- Suppose, D borrowed P10M from B. D gave TCT as a
collateral. B found out that the TCT was a fraud. B sued
me for a sum of money. Can B successfully apply for the
writ of prelim attachment? Yes. (d) 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;
- I am the treasurer of the corporation. I embezzled the
money of the corporation. It filed against me for the
recovery of the money embezzled and applied for writ of
attachment. I countered in saying that there is no
showing that I am concealing and removing my property.
Is my defense against the application for the writ, valid?
No. With respect to money or property embezzled, it is
enough that it is alleged that you are holding a fiduciary
position. It is not necessary to allege that you are
concealing the property.
Could a writ of preliminary attachment be issued without a
hearing, meaning ex parte? Yes. SECTION 2. Issuance and
Contents of Order. 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 Court of Appeals or the Supreme Court, and must require
the sheriff of the court to attach so much of the property in the
Philippines of the party against whom it is issued, not exempt
from execution, as may be sufficient to satisfy the applicant's
demand, unless such party makes deposit or gives a bond as
hereinafter provided in an amount equal to that fixed in the
order, which may be the amount sufficient to satisfy the
applicant's demand or the value of the property to be attached
as stated by the applicant, exclusive of costs. Several writs
may be issued at the same time to the sheriffs of the
courts of different judicial regions. (2a)
- Because if you notify him of the application for the writ,
he would immediately conceal his property. Thats why
the Rules allowed ex parte application.

- And you notice that the writ of prelim attachment can be
applied for at the commencement of the action. Kung
isabay mo sa pag-file ng action ang pag-apply ng writ of
prelim attachment, wala pang summons yan sa
defendant. Ang effect yan ay ex parte talaga yan. Pero
hindi mo ma-enforce or execute ang writ of attachment if
no prior or contemporaneous service of summons. Kasi
how can you make it effective upon a person who is not
yet in the jurisdiction of the court? So issuance does not
jurisdiction over the defendant. But the implementation
of it requires that the court should have jurisdiction over
the person of the defendant.
- When you apply for the writ of prelim attachment you
should post a bond. The Attachment Bond.
- If defendant ka, yung properties mo ang inattach,
papaano mo madidischarge yung attachment? File a
counter-bond. Mawawala ang writ of attachment.
- Eh, papaano kung walang counter-bond? Section 13.
Sasabihin mo na yung application nya is not one of those
cases where attachment is allowed. Or say na his bond is
not sufficient. Yung counterbond para yun sa mga can
afford. Sa mga cant afford, utak ang gagamitin.
Injunction is a main action. Preliminary injunction is a
provisional remedy. There are 2 kinds of preliminary
injunction: preliminary, mandatory
Illustration: I sued X because by stealth and strategy he
occupied my house. Forcible Entry. What is my remedy to
have possession of the house even before the FE case has been
finally decided by the court? Avail of a prov rem. Rule 70,
SECTION 15. Preliminary Injunction. The court may grant
preliminary injunction, in accordance with the
provisions of Rule 58 hereof, to prevent the defendant from
committing further acts of dispossession against the plaintiff.
A possessor deprived of his possession through forcible entry
or unlawful detainer may, within five (5) days from the
filing of the complaint, present a motion in the action for
forcible entry or unlawful detainer for the issuance of a
writ of preliminary mandatory injunction to restore him in
his possession. The court shall decide the motion within thirty
(30) days from the filing thereof. (3a)
I filed a petition for certiorari against RTC in order to interrupt
the RTC from proceeding below while the petition for
certiorari is pending in CTA, what is my remedy? Rule 65,
SECTION 7. Expediting Proceedings; 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, enjoining the
public respondent from further proceeding with the case.
The public respondent shall proceed with the principal case
within ten (10) days from the filing of a petition
for certiorari with a higher court or tribunal, absent a
temporary restraining order or a preliminary injunction, or
Dean Rianos Lecture 2014 47
upon its expiration. Failure of the public respondent to
proceed with the principal case may be a ground for an
administrative charge.
By the way, a writ of preliminary injunction cannot be issued
without a hearing. Rule 58, SECTION 5. Preliminary
Injunction Not Granted Without Notice; Exception. No
preliminary injunction shall be granted without hearing and
prior notice to the party or person sought to be enjoined. If it
shall appear from facts shown by affidavits or by the verified
application that great or irreparable injury would result to the
applicant before the matter can be heard on notice, the court to
which the application for preliminary injunction was made,
may issue ex parte a temporary restraining order to be
effective only for a period of twenty (20) days from service on
the party or person sought to be enjoined, except as herein
provided. Within the said twenty-day period, the court must
order said party or person to show cause, at a specified time
and place, why the injunction should not be granted, determine
within the same period whether or not the preliminary
injunction shall be granted, and accordingly issue the
corresponding order.
However, and subject to the provisions of the preceding
sections, if the matter is of extreme urgency and the applicant
will suffer grave injustice and irreparable injury, the executive
judge of a multiple-sala court or the presiding judge of a
single-sala court may issue ex-parte a temporary restraining
order effective for only seventy-two (72) hours from issuance
but he shall immediately comply with the provisions of the
next preceding section as to service of summons and the
documents to be served therewith. Thereafter, within the
aforesaid seventy-two (72) hours, the judge before whom the
case is pending shall conduct a summary hearing to determine
whether the temporary restraining order shall be extended
until the application for preliminary injunction can be heard.
In no case shall the total period of effectivity of the temporary
restraining order exceed twenty (20) days, including the
original seventy-two hours provided herein.
In the event that the application for preliminary injunction is
denied or not resolved within the said period, the temporary
restraining order is deemed automatically vacated. The
effectivity of a temporary restraining order is not extendible
without need of any judicial declaration to that effect and
no court shall have authority to extend or renew the same on
the same ground for which it was issued.
However, if issued by the Court of Appeals or a member
thereof, the temporary restraining order shall be effective for
sixty (60) days from service on the party or person sought to
be enjoined. A restraining order issued by the
Supreme Court or a member thereof shall be effective until
further orders. (5a)
But suppose there is a need to immediately prevent the act of a
person and there is no time for hearing, avail of TRO. TRO is
a prov rem within a prov rem. No hearing. Can be issued ex
parte. Its normal decision is 20 days from its issuance. When it
expires it cannot be extended. That is why the court must
conduct a summary hearing within that 20-day period to

determine whether it can be converted to preliminary
injunction
Is hte bond mandatory in the issuance of writ of preliminary
injunction? NO. Rule 58, SECTION 4. Verified Application
and Bond for Preliminary Injunction or Temporary
Restraining Order. A preliminary injunction or temporary
restraining order may be granted only when: x x x
(b) Unless exempted by the court, the applicant files
with the court where the action or proceeding is
pending, a bond executed to the party or person
enjoined, in an amount to be fixed by the court, to the
effect that the applicant will pay to such party or
person all damages which he may sustain by
reason of the injunction or temporary restraining
order if the court should finally decide that the
applicant was not entitled thereto. Upon
approvalof the requisite bond, a writ of preliminary
injunction shall be issued. (4a)
- The phrase Unless exempted by the court, means that
the court in the exercise of its discretion may not actually
require the posting of the bond.
If you want to prevent the property subject of litigation from
being wasted and dissipated during pendency of the action.
What remedy to avail? Receivership. There are two bonds
needed here. A bond for the application of the receiver and
another bond when the receiver takes his oath as a receiver.
Actually, we call Provisional remedies: the battle of the bonds
^_^
But there is one provisional remedy to recover personal
property for the meantime that the main action is not over.
Replevin. Take note, you cannot ask for the replevin of the
property that is already in custodia legis. It applies to a
personal property capable of manual delivery. You cannot ask
a replevin of real property.
What is that prov rem where a bond is not required for its
application? Support Pendente Lite.
Are provisional remedies also available in criminal
procedures? Yes. Rule 127. RULE 127
Provisional Remedies in Criminal Cases
SECTION 1. Availability of Provisional Remedies. 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. (1a)
It is not enough that you say something in court you have to
prove what you are asserting or alleging.
EVIDENCE.
Dean Rianos Lecture 2014 48
What is evidence? Rule 128 Section 1. Evidence defined.
Evidence is the means, sanctioned by these rules, of
ascertaining in a judicial proceeding the truth respecting a
matter of fact.
Implications:
You can only insist the rules of evidence on judicial
proceedings. You cannot insist the rules of evidence
as a matter of right on non-judicial proceedings, i.e.
SEC, NLRC
Purpose of evidence is to ascertain the truth which is
not necessarily the actual truth; only the legal truth.
The truth depending upon the evidence. Evidence
depends upon certain rules. c.f. Pp v. Amminudin; Pp
v. Mengote;
Admissibility of Evidence
- Not all evidences are evidence. Dapat admissible.
- The most important concept
- Evidence is admissible when: RELEVANT and
COMPETENT
- Relevance is a matter of logic and common sense. When
it has a relationship to the fact in issue. It must be
responsive.
- Competence is a matter of law and rule. When it is not
excluded by law and rule.
Sometimes, an evidence may be admitted for various purposes
the Doctrine of Multiple Admissibility
Sometimes when you present an evidence you cannot
immediately show its relevance and sometimes it would be
excluded. So you offer it in evidence under the Doctrine of
Conditional Admissibility. You say, Your Honor, later on I
can show the relationship to the issue of this evidence, please
admit this on the basis of the doctrine of conditional
admissibility. Later on you were not able to show the
relevance, the evidence will be stricken out of the records.
Which is stronger? Positive or Negative Evidence? A positive
evidence. An assertion is stronger than the denial
There are concepts you need for MCQ. What is the
jurisprudential name for the facts you should establish to
prove. Factum Probandum.
What is the means to prove the factum probandum? The
factum probans. The evidence.
There are only 3 major types of evidence:
1. Object
2. Documentary
3. Testimony
The rule is everything you assert must be proven. You must
have evidence. Except on three matters which need not be
proven:
1. Judicial Notice Rule 129
2. Judicial Admissions Rule 129
3. Presumptions Rule 131

There are matters which the court should not require evidence,
i.e. matters of mandatory judicial notice. Illustration: Your
honor, I saw the victim fell on the building. The other party
said, objection your honor, move to strike out the evidence
because there is no showing that the law of gravity exist
@.@ You do not have to prove the laws of nature. It is a
mandatory judicial notice.
Section 1. Judicial notice, when mandatory. A court shall
take judicial notice, without the introduction of evidence, of
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 legislative, executive and
judicial departments of the Philippines, the laws of nature, the
measure of time, and the geographical divisions.
But there are also matters subject to judicial notice but only
discretionary
Section 2. Judicial notice, when discretionary. A court
may take judicial notice of matters which are of public
knowledge, or are capable to unquestionable demonstration, or
ought to be known to judges because of their judicial
functions. (1a)
Can a court take judicial notice that Espana Boulevard near
UST gets flooded when it rains? Yes. Common knowledge na.
But the most critical part here is judicial admission. When is
an admission judicial?
Should it be in writing? No. Can it be oral? Yes. But it must
be an admission in the same case. The phrase same case is
critical. Illustration: P and D in the RTC Manila, Branch 51,
Case No. 10127-14. Incidentally, they are also same litigants
in RTC Manila, Branch 51, Case No. 10128-14. These are 2
different cases. A judicial admission was made in the first
case. That is a judicial admission only in that case. You do not
have to prove that admission in that case because it becomes
automatic.
If you want to present that admission in the other case, that is
not a judicial admission. It is an Extra-judicial admission in
relation to that other case. It is not a judicial admission, so you
must offer them as evidence first before they become admitted
in the other case. Its not the same case.
You cannot contradict a judicial admission. The only way to
contradict is through Rule 129, Section 4. Judicial admissions.
An admission, verbal or written, made by the party in the
course of the proceedings in the same case, does not require
proof. The admission may be contradicted only by showing
that it was made through palpable mistake or that no such
admission was made. (2a)
Palpable mistake- talagang obvious na nagkamali lang.
No such admission was made does not mean na hindi mo
sinabi. That is a mere denial or negative evidence. It is not
strong. that is not what I meant, I was quoted out of context.
Dean Rianos Lecture 2014 49
Types of evidence
It is necessary for us to know whether an evidence is object or
documentary because there are some rules of evidence which
apply only to documentary evidence.
Rule 130, Section 2. Documentary evidence. Documents as
evidence consist of writing or any material containing letters,
words, numbers, figures, symbols or other modes of written
expression offered as proof of their contents.
It could be any material not necessarily written paper
Illustration: a pen. If offered to prove the length, size, shape,
or weight of the pen, - object evidence
If offered to prove what is written in the pen documentary
evidence.
Illustration: N is the complainant in a sexual assault case. She
was asked to point at the suspect. W was pointed. W is an
object evidence. Identifying a person makes the person an
object evidence.
If the question is, what did you see written on his chest, if
any. His chest becomes a documentary evidence.
Bar 2006. Can a private document be offered as an object
evidence? Yes. Depending on the purpose.
Again, the importance of knowing between the object and
documentary evidence is because there are some rules
applicable to documentary evidence only.
1. Best evidence Rule.
2. Parol Evidence Rule
3. Hearsay Evidence Rule - only on testimonial and
documentary evidence
Possible Bar Exam Questions:
Best Evidence Rule
Rule 130, Section 3. Original document must be produced;
exceptions. When the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the
original document itself, except in the following cases:
(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
(d) When the original is a public record in the custody of a
public officer or is recorded in a public office. (2a)

Best evidence rule (BER) is the most misunderstood rule
because the phrase best evidence does not actually mean
most superior or highest form of evidence. It is a misnomer. It
refers only to the quarrel between the original and the
secondary evidence. It means that between the original and the
secondary, the original is the best. do not use best evidence
rule if there is no documentary evidence involved. And even if
there is a document involved but the question is not about the
content, do not use BER because the document is not a
documentary evidence but an object evidence. The subject of
the inquiry must be the contents before you apply the BER. It
is not enough that you have a document. If the question and
answer do not involve documentary evidence, dont use BER.
If theres a document, you must wait about to prove the
contents of the writing.
Illustration: Ace was arrested in a buy bust operation. The
drugs were confiscated together with the money involved.
During the trial, the prosecutor, to prove that Ace was
involved in the illegal sale of illegal drugs, offered in
evidence the photocopy of the bills confiscated from him in
the buy-bust operation. Is the photocopy of the bills object or
documentary evidence? To be documentary evidence, it is
offered to prove what is written in the document. But
obviously the bills were presented to prove that money was
involved. It wasnt documentary. It was object.
If the objection was that it was not the best evidence. Would
you sustain it? Or overrule it? Overrule. You dont apply BER
to an object evidence.
To remember Best Evidence Rule, ask
1. Is there a document involved? If there was, then
apply. If none, dont apply.
2. What is the subject of the inquiry? If the contents,
apply. If not, then dont.
What is the consequence of the rule that if the focal point
inquiry is the contents of the document, what is the rule? You
show the original as it is the best evidence as compared to the
secondary evidence.
BER originated in England. We borrowed our Rules of
Evidence from US, but US borrowed it from England. Once
upon a time, there was a quarrel between 2 landowners. P was
claiming the land from D. Not so big land though. D said this
is mine! I bought it from S. In fact, I have an evidence, the bill
of sale. The court said, ok, during the next session, D bring
the bill of sale. Upon hearing, D said I travelled 50 miles,
along the way I passed through the forest, there were robbers,
but you know what, i copied it religiously. I left the original in
the home. Court denied it, You might have committed a
mistake in copying it, so I need the original that is the origin
of the Best evidence rule the original name of this is the
Original Document Rule.
If you look at BER, the rule is present the original. However,
there are instances when you are not absolutely obligated to
Dean Rianos Lecture 2014 50
present the original document. If you cannot present the
original, you have the duty to explain to the court why you
cannot do so, i.e. lost, destroyed, unavailable. Proving and
justifying why you cannot produce the original LAYING
THE BASIS, for the presentation of the secondary evidence.
What basis are you going to use? Look at Rule 130, Section 5.
When original document is unavailable. When the original
document has been lost or destroyed, or cannot be produced in
court, the offeror, upon proof of its execution or existence and
the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents
in some authentic document, or by the testimony of witnesses
in the order stated. (4a)
Are you going to prove that an original exist? That it has been
duly executed? Then you explain its loss, destruction or
unavailability. You must emphasize that there was no bad
faith! When you have shown all those matters, you have
successfully laid the basis for the presentation of secondary
evidence. But take not, when you present a secondary
evidence you have to do it in the order mentioned in section 5.
Start with the copy. Sans copy, then the recital of its contents.
If not, testimony of witnesses. Do you notice something?
Testimony of witness could be a secondary evidence where
you cannot present the original. Testimonial evidence could
take the place of the documentary evidence.
Suppose you cannot present the original because the original is
in the custody of the adverse party, what are the matters to
show to lay the basis? The same. It exists, duly executed. And
(this is very important) you must give reasonable notice. But
despite notice, he was not able to present.
Dean Rianos Sample Exams of what he asked in his Final
Exams.
Whether or not you apply the Best Evidence Rule
Formal offer of exhibits
Exhibit 1 photocopy of the deed of sale duly executed
between the plaintiff and defendant. To prove that P actually
met the D and they knew each other before, contrary to the
claim of P that they never met before.
Plaintiff objected that it was not the best evidence because it
was not the original and that there was no laying of the basis
for the presentation of the copy during the trial. would you
sustain the objection? No. The BER does not apply here
because the subject of the inquiry is not the contents of the
document.
So, in Best Evidence Rule, may documentary evidence ba?
May tanong ba on its contents? Wala eh, eh di wag mong i-
apply.
If meron, i-apply mo then present the original. If walang
original, i-justify mo kung bakit mo di ma-present. Now if you
can show the secondary evidence, what is it? Umpisa ka sa
copy; if none then sa recital of contents; if none then
testimony. Tapos!

TRANSCRIPT 7
In marital privileged information, the prohibition is not only
during the marriage but also after the marriage. So even if na-
annulled na ang marriage, no divulging.
When I divulged to my wife that I was the theft, J overheard
me. Can she testify against me over my objection? Yes, she is
not my spouse so the prohibition does not apply.
Lawyers cannot reveal the info given to him by the client.
Even his secretaries, stenographers are prohibited. But the
client can reveal it as he is the holder of the privilege. The
prohibition is only against the lawyers and his employees.
Doctors, physicians and surgeons, the prohibition does not
apply to a criminal case. It only applies in civil cases that
would blacken the reputation of the patient. Sec. 24 only
mentions civil cases.
One very important concept in Rule 130 is that concept that
starts in Section 26. Admission of a party. The act,
declaration or omission of a party as to a relevant fact may be
given in evidence against him. (22)
That section is the beginning of the rule of res inter alios acta.
res inter alios acta- the first branch- is the combination of Sec.
26 and Sec. 28
Section 28. Admission by third party. The rights of a party
cannot be prejudiced by an act, declaration, or omission of
another, except as hereinafter provided.
They have to be together sec. 26 + sec. 28 is the statement
of the res inter alios acta rule. Lets rephrase it. Whatever I
say/do are admissible against me but not admissible against
the others, thats sec. 28.
Illustration: I was identified as one of the robbers through the
CCTV. I was arrested and the media were there. Arnold
Clavio of GMA said, what was your participation in the
robbery? I replied in front of the media and not in court, I
opened the safe. I was with X and Y. My statement was
extrajudicial as it was not in court. The three of us were
charged with robbery. The prosecution with leave of court
presented the video where I implicated myself, x and y. The
video was admissible against me. But not admissible against x
and y.
But you will panic if I will repeat that in court as a witness. It
is no longer extrajudicial but already a judicial admission.
That will be admissible against me and against them. The res
inter alios inter acta rule applies only to extrajudicial
statements!
Objection is very important.
Read first the complaint and information. Whatever statement
not stated there is objectionable as it is a violation of the right
to be informed of the nature of his case and cause of
accusation.
Dean Rianos Lecture 2014 51
If this is civil case, if what is alleged is possession but the
evidence pointed on ownership, objectionable. Possession is
not ownership and ownership is not possession. So always
look at the pleadings. Outside of it is objectionable
Admission by Silence.
Rule 130, Section 32. 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. (23a)
Imagine a lady shouting at the door that I robbed her. If it
werent true, my natural reaction would be to be angry. If I
dont react, that would be not natural consequence of
innocence. My silence would be admissible in court as
admission by silence.
There can be no admission by silence if the culprit is under
custodial investigations since he would have the right to
remain silent.
Rule 130, Section 34. Similar acts as evidence. 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
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. (48a)
- Similar acts as evidence is the 2nd branch of res inter
alios acta
- This is no longer extrajudicial statement. Already judicial
na.
- Use this as an objection because just because you were a
convict before does not necessarily mean that you are the
criminal in the present case. Also, just because you
didnt do it before, not necessarily mean you cannot do it
now.
- Non sequitur it does not follow
- Do not present prior criminal actions or convictions to
prove current crime. Change the purpose as stated in Sec.
34. The specific intent or knowledge; identity, plan,
system, scheme, habit, custom or usage, and the like.
Rule 130, Section 36. Testimony generally confined to
personal knowledge; hearsay excluded. 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 these rules. (30a)
- This is the Philippine version of the hearsay rule
- By the way, A witness testifies only as to facts. He has
no business testifying on conclusions. It is the court
which is supposed to make conclusions from the facts
testified by the witness. There is only one kind of witness
allowed to testify on conclusions expert witness

- A witness must testify to those facts which he knows of
his personal knowledge. Not on those facts of the
knowledge of another person.
- Illustration: A murder case. Jose is the accused. The one
who saw the killing was Pedro, the witness. Pedro
revealed to Wilfredo what he saw. On the day Pedro was
about to testify, he was riding a horseback going to court
when an earthquake shook the horse to fall on the
opening of the earth and burst. Pedro was never
retrieved. Before he died he already told Wilfredo what
he saw. Wilfredo is now in court and made the following
statements: Pedro revealed to me, it was Jose who shot
the victim. Before you conclude WON it is hearsay, you
have to ask the purpose for which the statement was
repeated in court. Wilfredo was asked why he was telling
it in court.
- If Wilfredo says that he is saying it to prove that it was
really Jose who killed the victim hearsay. His evidence
is not based on his personal knowledge. It was based on
someone elses who is not in court to be cross-examined.
The truth of the statement cannot be tested by cross-
examination. That failure to cross-examine makes it
inadmissible.
- Hearsay I heard and I said. Hear. Say. I did not see, I
only heard.
- If Wilfredo was saying that it was to tell the court what
he heard from Pedro. But he doesnt know the truth not
a hearsay. Only to show what he heard; whether true or
false, he does not care. And he has personal knowledge
of what he heard but not the truth of it. If relevant, it
becomes an Independent Relevant Statement.
- Whether it is hearsay or not depends on the purpose for
which the outside declaration is presented in court.
- If you are repeating the statement of another who is not
in the court, but your purpose is only to tell the court
what he said, but not the truth of it it is not hearsay. It
becomes an independent relevant statement, if it is
relevant.
- Or if the purpose is other than to prove the truth of the
statement it is not hearsay. Illustration: W was a
witness in a case where the issue was whether his brother
was alive at that particular day or not. His brother died
on April 26, 2002. W was asked; did you know whether
your brother was alive on April 21? W replied, Yes, I
spoke to him on that day through the phone as I was in
Paranaque and he was in Quezon. W was asked, When
you were conversing, did your brother tell you anything,
if any? Yes, sir. He said, its raining halo in Quezon. If we insist strictly on hearsay rule and on personal
If W repeated his brothers statement in court, is that
hearsay? Now, look at the purpose. If the purpose is to
prove that at that day, it really rained halo, thats hearsay
coz W had no personal knowledge. It was his brother
who had personal knowledge and who wasnt in court to
be cross-examined. But if the purpose of W was to prove
the fact that his brother was alive at that day to tell me
the event or that the phone line between Paranaque and
Quezon was operational or to present to the court the
statement he heard from his brother- not hearsay, since
Dean Rianos Lecture 2014 52
its not to prove the truth of the statement that indeed it
rained halo that day.
- So, again, look at the PURPOSE!
- Hearsay, as a rule, is not accepted as evidence. But that
has to be objected because inadmissible evidence
becomes admissible through waiver. But just because it
is admitted it does not necessarily mean that it will be
given weight or probative value by the court. But the
very important rule in evidence, if it is inadmissible you
must object because it will find itself in the records if
you do not object.
- You also have to object to lay the foundations for a
future appeal, in case you lose the case in the trial court,
to point out assignment of error in the trial court because
you cannot for the first time object on appeal (objections
to the evidence must be found in the trial court). If you
point out the errors on appeal without first pointing out
on trial court, it is already waived.
- One of the most important purposes of objection is to
keep out of the records inadmissible evidence.
- Hearsay is not reliable because it is not reliable as the
person who knows the court is outside the court and is
not possible to cross-examine him. And the one who is in
court is a person who has no personal knowledge to
prove the truth of the statement.
Are there instances where hearsay evidence is admissible?
Yes. There are exceptions which are also hearsay. But they are
called admissible hearsay.
Why do the rules admit hearsay evidence by way of
admissions? Lets use common sense. We live in a hearsay
world. Imagine if you demand from us personal knowledge of
everything?! We have no personal knowledge of everything!
That wouldnt be practicable. We have to rely on the
knowledge of someone which is hearsay. For convenience, we
have to admit some hearsay evidence.
Suppose I tell you, meet Jinky, my sister. I call her my sis
because my parents told me shes my sis a family tradition. I
have no personal knowledge coz I wasnt there when she was
manufactured by my parents. But that is admissible
pedigree. Even if I witness her being delivered in this world,
Im not even sure if we have the same parents because I have
no personal knowledge.
knowledge, no one could lecture on historical events or
scientific matters because you have to be there within the rule.
How can I lecture on the law on gravity when I am not within
the law of gravity? That requires personal knowledge. Lets
assume, I am professor of history. I said on March 16, 1521,
Magellan came here in the Philippines. He delivered his first
mass in Limasawa and he first gave this country a name the
Archipelago of St. Lazarus, etc. I was not born at that time.
Hearsay, I have no personal knowledge. Imagine the academic
disasters that will follow if you insist that the lecturer be one

living on March 16, 1521, etc? How did I learn about it? An
exception
Learned Treatises that includes authoritative
historical books. By necessity, we have to accept
hearsay evidence.
Common reputations include monuments (i.e. Rizals
monument).
Regular records of the business
Pedigree
Dying declaration
Section 37. Dying declaration. The declaration of a dying
person, made under the consciousness of an impending death,
may be received in any case wherein his death is the subject of
inquiry, as evidence of the cause and surrounding
circumstances of such death.
An unwritten element here is that the declarant must have died
because if he had not died he is the one who will testify. This
started in England. H and W lived in a big house together for
30 years who never touched each other. But if they go out of
the house, they are a model of perfect marital bliss, very sweet
but only for a show. In the house, they would separate. One
night, H went to the library in their house to get a book, W
also did the same. They quarrelled. 3 shot guns were heard.
The maids went to the sala and saw H soaked in his own
blood. Police came and bent over H. Hs chest was ripped
open and his intestines were open. Police asked H and H
pointed to W sitting on the sofa calmly smoking the cigarette.
W said, you are the policeman you figure it out. H
whispered to police, my wife shot me. When W was sued for
parricide, the issue was can the polices testimony that the
dying admission be admitted in evidence. The lawyer argued
that if you are at the point of death and are going to meet the
Creator, are you going to meet Him with black line of your
lips? No. When the guy was conscious of his impending death
and he declared a statement. In most probability he was going
to tell the truth. We have to admit hearsay - Dying declaration
as an exception. Because it was admitted as part of
presumption that a dying man would not tell a lie. Remember,
this was 300 years ago when the moral values of people were
strong. But now?
Nevertheless, dying declaration is still an admissible hearsay.
Elements:
1. Consciousness of Impending Death impels a person
to tell the truth. That is the philosophy of the rule.
Let us suppose the person who was dying actually survived.
He is the most competent person to testify. But he cannot do
so since he is paralyzed and he cannot talk. Can his
declaration be admitted as evidence? Yes. But not as a dying
declaration but as a res gestae as it was uttered in a startling
event.
Suppose a person asked you, who shot you? And you
answered Jonathan Capanas shot me and Sir I am going to go
any moment now. That dead person beside me is also shot by
Jonathan Capanas. Are these dying declarations? Not all. The
Dean Rianos Lecture 2014 53
one about my death, yes. But the death of someone else, no.
(But it can be admitted as part of res gestae)
2. It must be about the cause and circumstances of the
death of the declarant.
When you talk about hearsay evidence, Ill give you an
example. An American example. W and B were living heirs of
F who just died and left a will. F left 100 hectares to B but left
only 100 sq.m. to W. In order to have equal share, W will
prove that the will was not validly executed. W would show
that F was of unsound mind at the execution of the will.
Intestacy would have followed. So, in the probate, W would
prove that F was insane. Ws lawyer asked W as to when the
will was executed. W testified on the circumstances. During
the course of conversation F allegedly told W a secret that it
was not Neil Armstrong who went to the moon and that it was
F. F confessed allegedly that F was the last bf of Marilyn
Monroe and that Margaret Thatcher was his gf. If W would
present the statement the truth of those statement, that would
be hearsay. If W would present those statement to prove that
such statement was made to prove his unsound mind, it
wouldnt be hearsay.
Rule 130, Section 42. Part of res gestae. Statements made
by a person while a starting occurrence is taking place or
immediately prior or subsequent thereto with respect to the
circumstances thereof, may be given in evidence as part of res
gestae. So, also, statements accompanying an equivocal act
material to the issue, and giving it a legal significance, may be
received as part of the res gestae. (36a)
Res gestae is the event. The statements describing the events
are the parts of a res gestae. These are statements made
immediately before, during, after a startling event. The one
who made the statement is not testifying in court hearsay.
The one who heard it is testifying.
Illustration: W witnessed and shouted Tamano just shot
Villanueva! then 3 shots were heard. W saw it. W should
have testified in court but he cannot do so since he migrated in
US. Instead, N testified in court that she heard W shouting that
Tamano shot Villanueva. Rules presumed that N said the truth.
When N was influenced by an excitement of an event, there is
no room for fabrication or telling a lie. There is Reliability.
Statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as
part of the res gestae. (Never been asked in the bar)
Illustration: Money was handed to C. It meant nothing. The
statement accompanying it will be part of res gestae and will
give it meaning. If I give it without saying anything, it doesnt
mean anything. But if I say that I pay it for my debt. It means
that I have debt. If I say that I gave it as a token of love, that is
part of res gestae. Or it could be a bribery or a loan.
Remember that in dying declaration, the one testifying is not
the dead!

Section 48. General rule. The opinion of witness is not
admissible, except as indicated in the following sections. (42)
Generally, an ordinary witness cannot give his opinions. One
who can give are the experts. There are exceptions where
ordinary witness can give opinions:
Section 50. Opinion of ordinary witnesses. The opinion of
a witness for which proper basis is given, may be received in
evidence regarding
(a) the identity of a person about whom he has adequate
knowledge;
(b) A handwriting with which he has sufficient familiarity; and
(c) The mental sanity of a person with whom he is sufficiently
acquainted.
The witness may also testify on his impressions of the
emotion, behavior, condition or appearance of a person
Rule 132, Section 22. How genuineness of handwriting
proved. The handwriting of a person may be proved by any
witness who believes it to be the handwriting of such person
because he has seen the person write, or has seen 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. Evidence respecting the handwriting may also
be given by a comparison, made by the witness or the court,
with writings admitted or treated as genuine by the party
against whom the evidence is offered, or proved to be genuine
to the satisfaction of the judge. (23a)
- There is no mention of an expert here
- An experts testimony is helpful but not indispensable.
You can testify as to whether he was happy or sad at that time.
Bar 2006. Sec. 48-50, Rule 130
Section 51. Character evidence not generally admissible;
exceptions:
(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.
(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.
(b) In Civil Cases:
Evidence of the moral character of a party in civil case is
admissible only when pertinent to the issue of character
involved in the case.
Dean Rianos Lecture 2014 54
(c) In the case provided for in Rule 132, Section 14, (46a, 47a)
Character evidence is generally inadmissible. There are
exceptions such as in civil cases where the character is the
issue i.e, cases involving damages on the ground fraud (which
involves character).
Illustration. In a criminal case, the prosecution called the first
witness, N. The question was whether N knew the accused. N
replied that yes since the accused was his neighbour for 20
years. N observed that the accused is quarrelsome and violent.
If you were the defense, are you going to object? Yes. That
character evidence is not admissible. The prosecution cannot
prove the bad character of the accused in its evidence in chief.
It can only do so during rebuttal. The prosecution must wait
for the accused to talk about his good character then the
prosecution can answer back that its not true and that the
accused is bad.
In practice though, if you are a prosecutor, just prove his bad
character in the evidence in chief. If he does not object it will
be found in the record. Tira lang ng tira! Inadmissible
evidence becomes admissible when the objection is waived.
TRANSCRIPT 8
The prosecution has no right to put in issue the character of
the accused. The prosecution must wait until the accused put
himself in issue his character.
The accused can prove the bad character of the victim. An
exception to this is in sexual abuse shield rule. The accused in
a sexual child abuse case cannot prove the sexual propensity
of the child.
Remember, the accused has always the right to prove his
moral character. The moment he does that, he opens the door
for the prosecution to rebut the goodness of his character.
Lets go back a bit in Rule 130. Section 27. Offer of
compromise not admissible. In civil cases, an offer of
compromise is not an admission of any liability, and is not
admissible in evidence against the offeror.
In criminal cases, except those involving quasi-offenses
(criminal negligence) or those allowed by law to be
compromised, an offer of compromised by the accused may be
received in evidence as an implied admission of guilt.
A plea of guilty later withdrawn, or an unaccepted offer of a
plea of guilty to lesser offense, is not admissible in evidence
against the accused who made the plea or offer.
An offer to pay or the payment of medical, hospital or other
expenses occasioned by an injury is not admissible in evidence
as proof of civil or criminal liability for the injury. (24a)

TN: An offer to compromise in a civil case will have no effect
on the party offering the compromise. It will not even result
in an admission of liability.
But in a criminal case, it is an implied admission of guilt. But
there is one type of felony where an offer of compromise is
not an admission of guilt. That is in criminal negligence or in
cases allowed by law to be compromised (i.e BP 22,
negligence cases)
Illustration: if I offered to pay your hospital bills, it will not be
an admission of liability, otherwise you would be preventing a
person from doing a humanitarian act. The Good Samaritan
Rule. It does not have negative implication of liability.
In US, there was a case where the guest of a hotel stepped on
the staircase which eventually broke up and the guest was
injured. The hotel immediately fixed the staircase. The issue
was whether the act of the hotel was an admission of liability.
No, because if you would consider it as an admission no one
would repair the staircase if repairing it would mean liability.
There are certain concepts in Rule 131 that you should know.
The most important concept there is the Presumption. No need
to memorize! Just go over them. What I am interested is the
conclusive presumption in Sec. 2 which was based on the
doctrine of estoppel.
Section 2. Conclusive presumptions. The following are
instances of conclusive presumptions:
(a) Whenever a party has, by his own declaration, act, or
omission, intentionally and deliberately led to another to
believe a particular thing true, and to act upon such belief, he
cannot, in any litigation 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 commencement of the relation of landlord and
tenant between them. (3a)
The clear example is letter (a) is in Corporation Code, Section
21. Corporation by Estoppel.
The Court ruled that having reaped the benefits of the contract
entered into by Chua and Yao, with whom he had an existing
relationship, petitioner Lim is deemed a part of said
association and is covered by the doctrine of corporation by
estoppel. The Court also ruled that under the principle of
estoppel, those acting on behalf of a corporation and those
benefited by it, knowing it to be without valid existence, are
held liable as general partners.
||| (Lim Tong Lim v. Philippine Fishing Gear Industries, Inc.,
G.R. No. 136448, November 03, 1999)
Estoppel cannot be rebutted. It is conclusive and permanent in
Sec. 2.
Dean Rianos Lecture 2014 55
The disputable presumption are only temporary presumptions.
The other name for this is rebuttable presumption or prima
facie presumption. The way to rebut this is to use clear and
convincing evidence.
The words clear and convincing evidence is not even found in
the Rules. It is found in jurisprudence.
"Clear and convincing evidence" should be used in
granting bail in extradition cases. This standard should be
lower than proof beyond reasonable doubt but higher than
preponderance of evidence.||| (Government of Hongkong
Special Administrative Region v. Olalia, Jr., G.R. No. 153675,
April 19, 2007)
There are however presumptions found in substantive law i.e.
that the contract is supported by sufficient consideration; that
there is cause in the contract; that the later instalment has been
paid, it is presumed that the earlier instalment has been paid;
that when the principal is paid, it is presumed that the interest
was also paid.
There is also a Constitutional presumption that every person is
presumed innocent of the crime unless otherwise proven.
In transportation law, Art.1756 and Art. 1735.
A presumption dispenses with proof. Illustration: A passenger
boarded a bus from Monumento in Kalookan to Makati. On
the way, it collided with a dump truck and the pax died. The
only child of the dead pax sued the bus company for the death
of his father. He was only able to prove that his father was a
pax and that he died. The bus company filed a demurrer to
evidence on the ground that under the facts and the law he has
no right to relief as he was not able to prove the negligence of
the common carrier. Rule on the Demurrer to Evidence.
Denied! There is here a presumption of negligence on the part
of the common carrier. No need to prove the negligence.
Negligence is the fave topic in remedial law!
Take note of A cause action based on breach of contract.
Whatever that contract is, you have no obligation to prove the
negligence of the defendant because in a common carrier
situation, negligence is presumed. But if it is a private carrier,
negligence is not presumed. But you dont have to prove
negligence as it is not an element in a breach of contract.
There are only 2 elements on a suit based on breach of
contract: 1) existence of contract; 2) breach of contract. This is
true in all cases of breach of contract.
Take note of the definitions! I.e. Burden of proof in Rule 131.
In civil case, who has the burden of proof? Plaintiff or
defendant? Both! Plaintiff to prove his claim. Defendant to
prove his defense. But in criminal case, the burden is on the
prosecution. An accused is convicted on the strength of the
evidence of prosecution and not on the weakness of the
defense.
Dean Rianos advice: If youre the counsel in a civil case, file
a series of written interrogatories. If it is ignored, Sec. 5 of
Rule 29 applies.

SECTION 5. Failure of Party to Attend or Serve Answers.
If a party or an officer or managing agent of a party wilfully
fails to appear before the officer who is to take his deposition,
after being served with a proper notice, or fails to serve
answers to interrogatories submitted under Rule 25 after
proper service of such interrogatories, the court on motion and
notice, may strike out all or any part of any pleading of that
party, or dismiss the action or proceeding or any part thereof,
or enter a judgment by default against that party, and in its
discretion, order him to pay reasonable expenses incurred by
the other, including attorney's fees.
Use this as gulpi de gulat! Haha!
Diba minsan, I am the counsel of the plaintiff, I can sometimes
ask the adverse party to be my witness. He can refuse. The
court will say, you be a witness. But he can refuse since I did
not send him interrogatories before. Without giving him
written interrogatories I cannot compel him to be my witness
and I cannot have his depositions taken pending appeal.
Or you may avail of Rule 26, Request for Admission of
certain facts or documents. No form there. This can be before
or during pre-trial. If he does not reply, the matters you
wanted to be admitted by him are deemed admitted.
As of July 13, 2004, Rules 25 and 26 are mandatory.
Burden of proof- fixed on a party.
Burden of evidence not fixed. It is a jurisprudential term.
During the course of trial youll find that the defendant has
presented convincing evidence. And I have the duty to
overcome that evidence as the trial goes on. That obligation to
overcome his evidence is the burden of evidence. And in the
next hearing I will present my own evidence stronger than his
evidence. She has the burden of evidence to disprove my
claim. It moves as the trials shifts. But the burden of proof is
fixed. Your claim is fixed. Your defense is fixed. You have
the burden of proof to prove your claim. Bar 2004.
If you are the plaintiff and you were not able to live up to your
burden of proof, you were not able to prove it. She is going to
file a demurrer of evidence because of the insufficiency of my
evidence.
Also distinguish competent witness from credible witness;
question of law and question of fact.
Rules on witnesses are kalat sa Rules
Rule 130, Sec. 20
Rule 132, Sec. 3
Section 3. Rights and obligations of a witness. A witness
must answer questions, although his answer may tend to
establish a claim against him. However, it is the right of a
witness:
Dean Rianos Lecture 2014 56
(1) To be protected from irrelevant, improper, or insulting
questions, and from harsh or insulting demeanor;
(2) Not to be detained longer than the interests of justice
require;
(3) Not to be examined except only as to matters pertinent to
the issue;
(4) Not to give an answer which will tend to subject him to a
penalty for an offense unless otherwise provided by law; or
(5) Not to give an answer which will tend to degrade his
reputation, unless it to be 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. (3a, 19a)
Illustration: there is a civil case for collection of sum of money
in the trial court. One of the defendants witnesses is X. On
cross-exam X was asked whether he hasnt paid his debt (not
evidenced by any promissory note) to the plaintiff. X didnt
answer. Can he be required to answer the question? That is
covered by first phrase of Sec. 3. He should be made to
answer even if his answer could establish a claim against him.
He cannot invoke the right against self-incrimination as his
answer would not expose him to criminal offense. Constitution
provides that no person shall be imprisoned for non-payment
of debt. The court can cite you in contempt if you wont
answer. But if your answer would subject you to criminal
offense, you cannot be compelled. That is sec. 3(4).
I have a wintess. I asked him, isnt it that 2 months ago you
pointed a gun to B? can he refuse to answer? Yes. Because
that will expose him to grave threat, a crime.
Briefly, lets talk about right against self-incrimination. It
refers only to a right against testimonial compulsion. It does
not refer to a right to prevent an examination on your body. If
the court orders you to submit into physical exam, you cannot
refuse. Villaflor v. Summers; but c.f. Beltran v. Samson
cannot be compelled to produce handwriting.
There is a difference between the right against self-
incrimination of the accused and that of the witness.
When the accused invokes this right, he can totally refuse to
sit on the stand.
But a witness does not have such that right. He must go to
court and sit on the stand. He can only invoke this right when
the questions are asked. He has to wait for the question.
What is the quantum of proof required in criminal cases?
Proof beyond reasonable doubt. It does not mean absolute
certainty. It means moral certainty
Civil cases- preponderance evidence
Administrative case substantial evidence.

Leading questions
Because of the insistence of judicial affidavit rule you no
longer use direct examination. But you can still object to
leading questions.
When is a question leading? A question that suggests the
answer to the witness.
Leading questions are not allowed in direct examination, it is
as if it is not the witness who testifies but the lawyers. But
leading questions are allowed in cross-examination. In fact it
is the best question in the cross-examination since the
intention there is to paint a picture in the mind of the court of
your version of what has happened. Again, leading questions
are not allowed in direct examination unless it is preliminary,
witness is a child or immature or an adverse witness.
Misleading questions when it assumes some things when
not yet in the record; assumes a fact not yet in evidence. There
is an assumption.
In law, do not assume. Whenever you say something, it must
be with evidence. We only conclude when there is evidence.
The first thing you ask is, Do you have an evidence?
How do you impeach a witness?
Impeaching a witness means destroying the credibility of a
witness so that his testimony will not be believed. There are
two aspects: 1) the witness the messenger; 2) what he is
talking the message. The messenger may be credible but his
message may be not. So to destroy the message is to destroy
the messenger.
Rule 132, Section 11. Impeachment of adverse party's witness.
A witness may be impeached by the party against whom he
was called, by contradictory evidence, by evidence that his
general reputation for truth, honestly, or integrity is bad, or by
evidence that he has made at other times statements
inconsistent with his present, testimony, 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. (15)
Let us summarize this:
1. Contrary evidence
2. Evidence that his general reputation for truth,
honestly, or integrity is bad
Lets say last week, the witness for the prosecution testified
against the accused. After prosecution presented his witnesses,
I will now present the witness for the accused to destroy the
star witness of the prosecution. In the course of examination,
the counsel for the accused laid the basis that its witness knew
very well the prosecution witness. Then the defendants
counsel asked, What can you say of the character of the other
witness? She says, very bad. It is the duty of the prosecution to
move to strike out her statement. You dont impeach a witness
Dean Rianos Lecture 2014 57
by evidence of his bad character. Look at section 11, you do
not see the word character there; it is reputation. Why cant
you impeach a person because of his character? Because in
sec. 51 of rule 130, character evidence is inadmissible. This is
how to analyze rules.
What can you say about his reputation in your community?
(she is competent coz we already established that she knew
him very well) she replied that the accused is very
quarrelsome. If you are the counsel of the other party, would
you object to strike the testimony out of the records? Yes. The
reputation about what she said quarrelsome, is not the
reputation you use to impeach. It must be about integrity,
honesty and truth. Not being about quarrelsome and
aggressive. That is how to study the rules.
3. Evidence of particular wrongful acts that he has been
convicted of an offense.
Tell me if this is a correct impeachment,
Kristin Gudian is the witness of the other party. As counsel I
asked her, There was a Kristin Gudian who was arrested last
week for robbing a 99-year old man. Are you the same Kristin
Gudian? She did not answer. And also after that there was a
Kristin Gudian arrested for robbing Metrobank. I am trying to
impeach her. What is your objection? Look at sec. 11. You
cannot impeach a witness by evidence of particular wrongful
act. The only particular wrongful act you can use is when that
act already amounted to conviction. But if it did not amount to
conviction, you cannot use that to impeach the witness
4. Prior inconsistent statement
- evidence that he has made at other times statements
inconsistent with his present, testimony
For example, after the incident, you testified and told the
criminal investigator that it was the plaintiff who tried to beat
the red light. But during the trial, you said that it was the
defendant who tried to beat the red light. How do you impeach
the witness here? First use the sec. 13.
Section 13. How witness impeached by evidence of
inconsistent statements. Before a witness can be impeached
by evidence that he has made at other times statements
inconsistent with his present testimony, the statements must be
related to him, with the circumstances of the times and places
and the persons present, and 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. (16)
Give the witess the chance to explain sec. 13 is in
jurisprudence called, Laying the Predicate. So you must ask
the witness first whether she said it or not and ask her to
explain. A witness is also given due process. Sec. 13 applies
when the mode of impeachment is a prior inconsistent
statement.
 Dean Rianos Lecture 2014 58

By the way, when you cross-examine a person, the modern Our local name for Tender of excluded evidence. OFFER
way of cross-examination is not to let the witness know that OF PROOF.
you are exposing his lies. Example: Ace is a witness in a It is not offer of exhibits or offer of evidence. It is offer of
stabbing. During the cross-examination: Ace, I admire you for proof. In the Philippines, you only summarize the testimony
the details you mention during the direct exam. Let me ask and have it on record. Do not panic if the court does not allow
you some questions. Is it not that you testify that the event your witness to testify. If it is a document or object
happened in 9pm? Yes sir. And you saw what happened disregarded by the court, have it attached to the records of the
exactly and very clearly as the killing happened beneath a well case.
lighted electric post? Yes sir. And I figure you remember
some details, right? Yes sir. Have you remembered that it was
a knife that was used in killing the victim? Yes sir. And I Is an extrajudicial confession sufficient for conviction? No.
know that you remember the color of the handle of the knife? Unless corroborated by evidence corpus delicti (elements of
Yes sir. What is the color? Black sir. And I know that you also the crime). Circumstantial evidence could convict in homicide
remember the length of the knife used. Was it around 6 or murder. But in drug cases, no conviction if you do not show
inches? More than 6 inches sir. And you remember what the the drug.
assailant was wearing, what was it, maong or dress pants? Section 4. Circumstantial evidence, when sufficient.
Maong sir. And you remember the brand of the maong? Yes
Circumstantial evidence is sufficient for conviction if:
sir, levis. What was the shoes he was wearing and the color?
Addidas sir, white. The shirt? White sir. What was written on
(a) There is more than one circumstances;
the shirt? Yes sir, no fear.
In your memorandum or oral argument, try to remind the court (b) The facts from which the inferences are derived are
that she is lying. When you see a startling occurrence like a proven; and
gore stabbing, you do not remember the details like the brand
of the shoes. You do not pay attention to the brand of the (c) The combination of all the circumstances is such as to
pants, to the color of the shirt. She knows too much details.
produce a conviction beyond reasonable doubt. (5)
The person who saw a startling stabbing incident only sees the
general act of stabbing. How can she see the handle when it
was covered with the hands? When she knows a lot of details, CRIMINAL PROCEDURE
that is too good to be true. A witness who is not lying In studying Crim Pro, the first thing in your mind is, how does
sometimes do not remember some details. But a witness who this differ from Civ Pro?
never remembers anything is also telling a lie. Criminal Procedure Civil Procedure
The court shall consider no evidence that has not been offered. cause of action belongs to the cause of action belongs to a
When I ask the court that this deed of sale be considered as People of the Philippines private individual natural or
Exhibit A, the court will say, mark it! Under the present rules, juridical person
the marking is done in pre-trial. If it is marked later in the trial,
you can object. The court then will use its discretion whether Offended party is a Star
to allow it or not. That is the effect of the july 13, 2004 witness of the People of the
amendments on the pre-trial. Philippines
But let us suppose that the court allows the marking. The Most of the provisions of the
marking of the evidence does not make the evidence as bill of rights are rights of the
evidence. It is only identified but not yet evidence. It has to be accused. To level the playing
formally offered. How? A formal offer of exhibit. Your honor, field.
my first exhibit is exhibit A a deed of sale. To prove your Criminal and civil liability. Civil liability
honor that the amount of the sale is P500K and not P50K. It is Art. 100 RPC when there is a
a Xerox copy. Objection, not best evidence. Your answer? private offended person
Your honor, I already previously laid the basis for the
Arrest There is no process of arrest
presentation of the secondary evidence the Xerox. It was
in civil case. But, if cited in
proven that the original copy was lost without my bad faith.
direct contempt, he can be
The court would say, sustain.
arrested as it becomes a
criminal contempt.
What will you do if your witness is not allowed to testify or Preliminary investigation No Preliminary
your exhibits are not admitted by the court? Rule 132, Section investigation.
40. Tender of excluded evidence. If documents or things Bail No Bail concept
offered in evidence are excluded by the court, the offeror may
Arraignment No arraignment
have the same attached to or made part of the record. If the
evidence excluded is oral, the offeror may state for the record Motion to quash No motion to quash. But
there is motion to dismiss
the name and other personal circumstances of the witness and
the substance of the proposed testimony. (n) Pre-trial Pre-trial
 Dean Rianos Lecture 2014 59

Trial Trial Their authority to conduct preliminary investigations shall

Judgment Judgment include all crimes cognizable by the proper court in their
respective territorial jurisdictions. (2a)
Motion for New Trial/Motion Motion for New Trial/Motion
for Reconsideration for Reconsideration
What if there is NO NEED FOR A PRELIMINARY
- look at the grounds! INVESTIGATION?
Neypes Ruling in Yu v. Tatad Nepes Ruling 1. Filing of the complaint before the prosecutor
Rule 127. Provisional Provisional Remedies - Depending on the location. There are places in the
Remedies Philippines like in manila and in other chartered cities
Searches. Rule 126 No Searches which require that every case whether for PI or not
should pass the Office of the Prosecutor. In cases where
Aspects of Jurisdiction Aspects of Jurisdiction: there will be no PI, the prosecutor will only examine the
jurisdiction over the jurisdiction over the affidavits and documents of the complainant. It will not
subject matter (the subject matter give notice to the respondent. The prosecutor will
offense) jurisdiction over the consider the evidence of the complainant and on that
jurisdiction over the parties basis file an information in court.
territory jurisdiction over the - Rule 112, SEC. 3. Procedure. The preliminary
jurisdiction over the issues investigation shall be conducted in the following
person of the jurisdiction over the manner:
accused res
(a) The complaint shall state the address of the
respondent and shall be accompanied by affidavits of the
complainant and his witnesses, as well as other
Venue is jurisdictional Venue is not jurisdictional
supporting documents to establish probable cause. They
When the venue is improper, When the venue is improper, shall be in such number of copies as there are
the ground for MTQ is lack the ground for MTD is respondents, plus two (2) copies for the official file. The
of jurisdiction. improper venue. affidavits shall be subscribed and sworn to before any
Institution of the action is Institution of the action is prosecutor or government official authorized to
through Rule 110 through filing of the administer oath, or, in their absence or unavailability,
complaint before a notary public, each of whom must certify that he
Depends on whether or not a personally examined the affiants and that he is satisfied
preliminary investigation is
that they voluntarily executed and understood their
required. affidavits.
- Rule 112, SEC. 8. Cases not requiring a preliminary
Rule 115, Rights of the accused investigation nor covered by the
Rule on Summary Procedure.
Does the defendant in a civil case has the right to speedy trial?
- (a) If filed with the prosecutor. If the complaint is
No. It is only speedy disposition of case. A speedy trial is a
filed directly with the prosecutor involving an offense
right on the criminal case.
punishable by an imprisonment of less than four (4)
The public cannot invoke the right to speedy trial. Only the years, two (2) months and one (1) day,
accused can invoke this. the procedure outlined in section 3(a) of this Rule shall
be observed. The prosecutor shall act on the complaint
based on the affidavits and other supporting documents
A criminal case requires preliminary investigation:
submitted by the complainant within ten (10) days from
Imposable penalty (not the penalty actually impose) its filing.
at least 4 years, 2 months, 1 day.
- Less than that, theres no need for preliminary
investigation
2. Filing of the complaint/information before the
MTC.
If the case requires a preliminary investigation, a complaint is - But if the place does not require the passing of the complaint
filed before the proper officer for purposes of preliminary to the prosecutor, go to Rule 112, Section 8 (b) If filed with the
investigation. Who are these officers? of Rule 112. SEC. 2. Municipal Trial Court. If the complaint or information is
Officers authorized to conduct preliminary investigations. filed with the Municipal Trial Court or Municipal Circuit Trial
The following may conduct preliminary investigations: Court for an offense covered by this section, the procedure in
(a) Provincial or City Prosecutors and their assistants; section 3(a) of this rule shall be observed. If within ten (10)
(b) National and Regional State Prosecutors; and days after the filing of the complaint of information, the judge
finds no probable cause after personally evaluating the
(c) Other officers as may be authorized by law. (i.e. legal evidence, or after personally examining in writing and under
officers of COMELEC, PCGG, Ombudsman) 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. If the judge still finds
no probable cause despite the additional evidence, he shall,
within ten (10) days from its submission or expiration of said
period, dismiss the case. When he finds probable cause, he
shall issue a warrant of arrest, or a commitment order if the
accused had already been arrested, and hold him for trial.
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. (9a)
- jurisdiction of MTC is up to 6 years of imprisonment. Upon
the receipt of the complaint/info, the MTC judge will have
the following options:
1. personally evaluate the evidence of the complainant.
2. require a personal examination of the complainant and his
witness in writing asking them searching questions to
determine probable cause.
3. may require them additional evidence
If after using those option there is yet no probable cause
found, dismissed. But supposed the court found probable
cause, it will issue a warrant of arrest. Suppose the accused
was previously arrested, the court will issue a commitment
order. But since this is MTC, minsan ang offense napakaliit,
arresto mayor. Minsan not warrant but only summons.
What is the effect of the institution of the criminal action in
the prescription of offense? It is interrupted unless so provided
in special laws. In violations of municipal ordinances, the
filing in the prosecution does not interrupt. It must be one filed
in court as an information or complaint. (transcribers
comment: c.f. Pp. v. Pangilinan)
Preliminary Investigation
-when the offense is punishable for at least 4 years, 2 months
and 1 day.
- who are the officers who can conduct P.I
What is the basic outline of the process of PI
Sec. 3, Rule 112. SEC. 3. Procedure. The preliminary
investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and
shall be accompanied by affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as
there are respondents, plus two (2) copies for the official file.
The affidavits shall be subscribed and sworn to before any
prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, before a notary
public, each of whom must certify that he personally
examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
Dean Rianos Lecture 2014 60
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no
ground to continue with the investigation, or issue a subpoena
to the respondent attaching to it a copy of the complaint and
its supporting affidavits and document.
The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been
furnished and to copy them at his expense. If the evidence is
voluminous, the complainant may be required to specify those
which he intends to present against the respondent, and these
shall be made available for examination or copying by the
respondent at his expense.
Objects as evidence need not be furnished a party but shall be
made available for examination, copying or photographing at
the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the
respondent shall submit his counter-affidavit and that of his
witnesses and other supporting documents relied upon for his
defense. The counter-affidavits shall be subscribed and sworn
to and certified as provided in paragraph (a) of this section,
with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in
lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed,
does not submit counter-affidavits within the ten (10) day
period, the investigating officer shall resolve the complaint
based on the evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are such
facts and issues to be clarified from a party or a witness. The
parties can be present at the hearing but without the right to
examine or cross-examine. They may, however, submit to the
investigating officer questions which may be asked to the
party or witness concerned.
The hearing shall be held within ten (10) days from
submission of the counter-affidavits and other documents or
from the expiration of the period for their submission. It shall
be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the
investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial, (3a)
Now, is it possible for the investigating prosecutor to
immediately dismiss the case even without sending subpoena
to the respondent? Yes, if he finds no ground nor reason to file
a case; no probable cause.
But if there is a ground, go to Sec.3b.
When respondent received a subpoena, he cannot file an
MTD. He must file a counter-affidavit and submit documents.
He is not allowed MTD.
TRANSCRIPT 9
How is the criminal action instituted? That depends on
whether the case requires PI.
If it does not require PI, you can file the information directly
in MTC because of the jurisdiction.

If there is no PI, it is still possible to file a complaint before
Prosecutors Office in those places i.e. chartered cities which
require passing the case through prosecutors office. But even
so, since there is no PI required, the respondent will not be
notified, not be subpoenaed. The prosecutor will only
determine the affidavit and documents of the complainant
because there is no PI
The minimum penalty so that the rules will require PI is 4
years, 2 months and 1 day.
If there is PI, the prosecutor will have to subpoena the
respondent; that is if he does not dismiss the complaint.
Respondent is supposed to file counter-affidavit and submit
documents in support of his defense. Suppose respondent files
instead MTD, that is not allowed. The last part of Rule 112,
sec. 3c disallows MTD.
If the investigating prosecutor decides to conduct a hearing on
this, this is not a true hearing since the parties cannot examine
and cross-examine. If they have questions, they can submit it
to the investigating prosecutor and it is the prosecutor who
will ask the questions. These are clarificatory questions. When
does the prosecutor decide to conduct the hearing? When there
are certain factual issues to be resolved.
Suppose the investigating prosecutor finds probable cause, he
prepares a resolution and the information. That information
cannot be filed in court without the approval of the higher
authority, i.e provincial prosecutor, city prosecutor or
Ombudsman.
In that information is found a certification which is a
certification by the investigating prosecutor under oath
certifying that he has personally examined the complainant
and his witnesses and that there is probable cause to believe
that a crime has been committed and that the respondent is
probably guilty thereof. He certifies that the respondent has
been given the copy of the complaint, evidence and documents
of the complainant and that he was given the opportunity to
submit his controverting evidence. In other words, he certifies
that he has duly conducted a preliminary investigation.
** 1. REMEDIAL LAW; CRIMINAL PROCEDURE;
INFORMATION; REQUIREMENT FOR CERT
IFICATION; NOT AN INDISPENSABLE PART THEREOF.
Relative to the claim that the certification did not fully
comply with the requirements of Section 4, Rule 112, of the
Rules of Court, we need merely to reiterate the settled rule that
such certification is not an indispensable part of, let alone
invalidate even by its absence, an information. In People
vs. Marquez, 27 SCRA 808, 813, the Court has had occasion
to explain: ". . . It should be observed that Section 3 [now
Section 4] of Rule 110 defines an information as nothing more
than 'an accusation in writing charging a person with an
offense subscribed by the fiscal and filed with the court.' Thus,
it is obvious that such certification is not an essential part of
the information itself and its absence cannot vitiate it as such.
Dean Rianos Lecture 2014 61
True, as already stated, Section 14 of Rule 112 enjoins that 'no
information . . . shall be filed, without first giving the accused
a chance to be heard in a preliminary investigation,' but, as can
be seen, the injunction refers to the non-holding of the
preliminary investigation, not the absence of the certification.
In other words, what is not allowed is the filing of the
information without a preliminary investigation having been
previously conducted, and the injunction that there should be a
certification is only a consequence of the requirement that a
preliminary investigation should first be conducted."
2. ID.; ID.; PRELIMINARY INVESTIGATION; QUESTION
THEREOF SHOULD BE DONE PRIOR TO AN
ARRAIGNMENT. The question of whether or not a
preliminary investigation has been properly conducted is itself
one that should be interposed prior to an arraignment. Relative
to his alleged warrantless arrest, he has waived, by filing a
petition for bail, any irregularity attendant thereto. Indeed, by
his application for bail and by entering a plea of not guilty and
then submitting to the proceedings below, appellant must be
deemed to have foregone his right to preliminary investigation
and to question any irregularity that might have attended such
investigation.
||| (People v. Lapura y Cajan, G.R. No. 94494, March 15,
1996)
Do you have a remedy if you are the respondent when the
provincial/city prosecutor approves the resolution and the
information of the investigating prosecutor? Yes. You can file
a motion for reconsideration within 15 days from receiving the
resolution. Suppose it is denied by the provincial/city
prosecutor, do you have the remedy? Yes. Under the DOJ
Rules, you can file a petition for review with the Secretary of
Justice. Now, suppose the Secretary of Justice resolves the
case against you, can you appeal? No, there is no appeal. But
you can have the resolution of the Secretary of Justice
reviewed by a petition for certiorari against the secretary of
the DOJ in the Court of Appeals. When you go to CA you are
not appealing, you are attacking the resolution of SOJ using
the theory of grave abuse of discretion amounting to lack of
jurisdiction. When you use Rule 65 that is not an appeal.
Simply a mode of review.
Why do you go to CA by way of Rule 65? Because there is no
appeal.
Suppose you lose in the CA, what is the remedy? SC under
Rule 45.
Is it possible to have the resolution of the SOJ reviewed by
OP? Yes. But only when the penalty impsable in the resolution
is an offense punishable by reclusion perpetua or death. Memo
Circular No. 58 of June 30, 1993.
When from the SOJ, you go to OP that is an administrative
appeal, not a judicial appeal. The resolution of SOJ is not
subject to judicial appeal. That is why you go to CA by Rule
65. But there is an administrative appeal to OP.
By the way, death cannot be imposed na ha. The highest
imposable penalty is reclusion perpetua. Even if the death

penalty will not be imposed, the definition of capital offense
still exist. Sec. 6, Rule 114.
Suppose you lost in the OP, is your remedy appeal? Yes. To
CA under Rule 43. So when the OP decides against you there
is now a judicial appeal, you go to CA, a petition for review
under Rule 43. If you lose in the CA, go to SC under Rule 45.
Questions of law.
If there is direct filing in MTC, what is the MTC going to do?
It has options, Rule 112, Sec.8b.
1. Personal evaluation of evidence
2. Personal examination in writing through searching
questions
3. Can require additional evidence
- Probable cause = dismissed
+ Probable cause = arrest
If already arrested = commitment order,
but sometimes MTC may not issue a warrant of arrest but
rather issue summons
Suppose there is a decision to file a case in court. But on
appeal, the SOJ reversed the decision of prosecutor and said
that it shouldnt be filed anymore; or if the information was
already filed it should be withdrawn. Will the withdrawal
order of SOJ be an order binding in the court? No. Even the
SOJ wants the withdrawal of the information, the withdrawal
of thte information is subject to judicial discretion. The court
is not bound by the order of SOJ. Once the info is filed in the
court the one in control is the court.
** The rule therefore in this jurisdiction is that once a
complaint or information is filed in Court any disposition of
the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although
the fiscal retains the direction and control of the prosecution
of criminal cases even while the case is already in Court he
cannot impose his opinion on the trial court. The Court is the
best and sole judge on what to do with the case before it. The
determination of the case is within its exclusive jurisdiction
and competence. A motion to dismiss the case filed by the
fiscal should be addressed to the Court who has the option to
grant or deny the same. It does not matter if this is done
before or after the arraignment of the accused or that the
motion was filed after a reinvestigation or upon instructions
of the Secretary of Justice who reviewed the records of the
investigation.||| (Crespo v. Mogul, G.R. No. L-53373, June 30,
1987)
Let us suppose the information is filed in court, does the court
have the duty? Yes within 10 days from the receipt of
complaint or information, the court has the duty, in Sec. 5
under the present rules as amended, to a make personal
evaluation of the evidence submitted by the prosecution in
Dean Rianos Lecture 2014 62
support of the filing of the information to determine probable
cause.
Preliminary examination the determination of probable
cause by the court. It is judicial function. This is conducted
after an information is filed in court. To determine whether or
not a warrant of arrest will be issued. If there is no probable
cause, information is dismissed. If the court is in doubt, it will
require additional evidence. If there is probable cause,
warrant of arrest. If already arrested, a commitment order is
issued.
Preliminary investigation - the determination of probable
cause by the prosecutor. It is an executive function.
Prosecutors are under DOJ. This is done before any
information is filed in court. The purpose is to determine
probable cause whether the crime has been committed and the
respondent is probably guilty thereof.
There are offenses which are punished by a penalty more than
4 years, 2 months and 1 day but no preliminary investigation
is needed.
Now, let us assume that I was arrested in the act of
committing homicide. I was arrested in flagrante delicto.
Homicide has the penalty of more than 6 years, reclusion
temporal. I was arrested lawfully without a warrant. I have no
automatic right to preliminary investigation. Inquest will be
conducted. It is a summary proceeding to determine whether
an information will be filed. In an inquest, the prosecutor will
only consider the evidence submitted by the complainant.
However, the inquest presupposes that there is an inquest
prosecutor available. Not all places have inquest prosecutors.
In fact, now, we lack 3500 prosecutors, 1200 judges but not
filled up coz of no money. If no inquest prosecutor available,
the complaint could be directly filed on the proper court on
the basis of the affidavit of the complainant or arresting
officer. This is an instance of direct filing to RTC. Sec. 6.
The inquest presupposes that the person has been lawfully
arrested without a warrant. If with warrant, regular PI follows
and not inquest.
SEC. 6. When accused lawfully arrested without warrant.
When a person is lawfully arrested without a warrant
involving an offense which requires a preliminary
investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing rules.
In the absence or unavailability of an inquest prosecutor, the
complaint may be filed by the offended party or by a peace
officer directly with the proper court on the basis of the
affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person
arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the

provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the
waiver, he may apply for bail and the investigation must be
terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court
without a preliminary investigation, the accused may within
five (5) days from the time he learns of its filing, ask for a
preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule. (7a; sec.
2, R.A. No. 7438)
However, a person arrested without a warrant is not
necessarily deprived of his right to PI. The rule is that he
cannot automatically be entitled to PI. He has to ask for it. So
before the information is filed in court he could request for a
preliminary investigation under one condition which is to
sign a waiver of the Art. 125 of RPC. The waiver must be
with assistance of counsel. If you do not waive it you will not
be given a preliminary investigation. By the way, the counsel
must be independent and should not be a government
counsel. There is only one independent counsel of the
government PAO.
Suppose naunahan ka sa pag-file ng information, can you still
request for a preliminary investigation? Yes, within 5 days
from learning of its filing, you can still file for a request for
PI.
Illustration: You have been arrested without a warrant
lawfully for robbery. You asked for PI and waived Art.125
but you are still in jail. Can you ask for bail even before the
formal charge is filed in court? Yes! What is the reason? The
basis is the fact that you are under custody. RULE 114.
BAIL.SEC. 17. Bail, where filed. x x x
(c) Any person in custody who is not yet charged in court
may apply for bail with any court in the province, city or
municipality where he is held, (17a)
Concededly, a person lawfully arrested and detained but who
has not yet been formally charged in court, can seek his
provisional release through the filing of an application for bail.
He need not wait for a formal complaint or information to be
filed since bail is available to "all persons" where the offense
is bailable. 12 Section 7, Rule 112 of the 1985 Rules of
Criminal Procedure provides that a judge could grant bail to a
person lawfully arrested but without a warrant, upon waiver of
his right under Article 125 of the Revised Penal Code, as
Santos had done upon her inquest.
Undeniably too, Santos was entitled to bail as a matter of right
since the offense with which she was charged does not carry
the penalty of life imprisonment, reclusion perpetua or
death. 13 Notwithstanding, it was incumbent upon respondent
Judge Beldia to grant bail to Santos in accordance with
established rules and procedure. Respondent
Judge Beldia failed in this respect and must thus be held
administratively liable.
Section 17, par. (c) of Rule 114 distinctly states:
Dean Rianos Lecture 2014 63
SEC. 17. Bail, where filed. . . .
(c) Any person in custody who is not yet
charged in court may apply for bail
with any court in the province, city, or
municipality where he is held. (Emphasis
supplied)
The Certificate of Detention 14 issued by the PNP-TMG-SOD
shows that Santos was detained at Camp Crame in Quezon
City. Thus, as correctly pointed out by the OCA, the
application for bail should have been filed before the proper
Quezon City court and not in Marikina City.
In addition, it appears that no formal application or petition for
the grant of bail was filed before the RTC-Marikina City.
There were no records of the application or the release order
issued by respondent Judge Beldia. Neither was there a
hearing conducted thereon nor the prosecutor notified of the
bail application. ACDTcE
Under the present rules, a hearing on an application for bail is
mandatory. 15 In Cortes v. Judge Catral, 16 we ruled that in
all cases, whether bail is a matter of right or of discretion,
reasonable notice of hearing must be given to the prosecutor,
or at least his recommendation on the matter must be sought.
The rationale for this was explained in this wise:
Bail should be fixed according to the
circumstances of each case. The amount
fixed should be sufficient to ensure the
presence of the accused at the trial yet
reasonable enough to comply with the
constitutional provision that bail should
not be excessive. Therefore, whether bail
is a matter of right or of discretion,
reasonable notice of hearing is required to
be given to the prosecutor or fiscal or at
least he must be asked for his
recommendation because in fixing the
amount of bail, the judge is required to
take into account a number of factors such
as the applicant's character and reputation,
forfeiture of other bonds or whether he is
a fugitive from justice. 17
Judge Beldia disregarded basic procedural rules when he
granted bail to Santos sans hearing and notice and without the
latter having filed a formal petition for bail. Accordingly, the
prosecution was deprived of procedural due process for which
respondent Judge Beldia must be held accountable. 18
||| (Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16,
2005)
The word complaint is used in 2 senses under the Rules. The
first is the complaint which the offended party files to the
prosecutor for purposes of preliminary investigation (this was
formerly called denuncia). That complaint is not the complaint
in Sec. 3 of Rule 110 which is a complaint filed in court.
There is a distinction between a complaint filed in court and
an information filed in court. A complaint filed in court is not
filed by the Prosecutor. Thats why you cannot say accurately
na the prosecutor filed the complaint. This complaint is filed

by the complainant or an officer charged by the law. It is
always sworn and under oath. An information is mere
accusation is writing. It does not say it has to be sworn. The
prosecution files an information under the oath of his own
office.
Sec. 8 and 9 of Rule 110 are very important. Compare these
with Civ Pro. SECTION 8. Designation of the 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. If there is no designation of the
offense, reference shall be made to the section or subsection of
the statute punishing it. (8a)
SECTION 9. Cause of the Accusation. The acts or
omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in
ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a
person of common understanding to know what offense is
being charged as well as its qualifying and aggravating
circumstances and for the court to pronounce judgment. (9a)
- Look at the similarity of Sec. 8 and 9. Both make
reference to the qualifying and aggravating
circumstances. These rules seem to tell us that the
designation of an offense and the cause of accusation are
not complete if no reference is made to the qualifying
and aggravating circumstances.
** REMEDIAL LAW; CRIMINAL PROCEDURE;
AGGRAVATING AND QUALIFYING CIRCUMSTANCES
MUST BE ALLEGED IN THE INFORMATION.
Aggravating and qualifying circumstances must be
categorically alleged in the Information; otherwise, they
cannot be appreciated. In this case, as contended by both the
defense counsel and the OSG, appellant cannot be convicted
of rape qualified by the use of a deadly weapon, since that
circumstance was not alleged in the Informations. He cannot
be punished for an offense graver than that for which he was
charged. (People v. Mendoza, G.R. Nos. 132923-24, June 06,
2002)
Illustration: The accusation is murder and the qualifying
circumstance is alevosia. Treachery was not proven. What was
proven instead are abuse of superior strength, disregard of
rank evident premeditation- but they are not contained in the
Information. So the crime here is homicide.
** In the case under consideration, AAA was raped by
appellants while she was under the custody of the CIDG.
Further, appellants were members of the PNP-CIDG at the
time they raped AAA. Nonetheless, these
aggravating/qualifying circumstances were not specifically
alleged in the informations. It is settled that the
aggravating/qualifying circumstances be expressly and
specifically alleged in the information, otherwise they cannot
be appreciated, even if they are subsequently proved during
the trial. Thus, the RTC was correct in imposing the penalty
Dean Rianos Lecture 2014 64
of reclusion perpetua on each of the appellants.||| (People v.
Aure, G.R. No. 180451, October 17, 2008)
In the present case, the Information charging the petitioners
with violation of R.A. No. 6539, as amended, did not allege
that the carnapping was committed by means of violence
against, or intimidation of, any person, or force upon
things. While these circumstances were proven at the trial,
they cannot be appreciated because they were not alleged in
the Information. Thus, the lower courts erred when they took
these circumstances into account in imposing the penalty
which they pegged at seventeen (17) years and four (4)
months to thirty (30) years imprisonment. In the absence of
these circumstances, the charge against the petitioners is
confined to simple carnapping whose imposable penalty
should have been imprisonment for not less than fourteen (14)
years and eight (8) months, and not more than seventeen (17)
years and four (4) months.||| (Andres v. People, G.R. No.
185860, June 05, 2009)
Rule 110, SECTION 13. Duplicity of the Offense. A
complaint or information must charge only one offense, except
when the law prescribes a single punishment for various
offenses. (13a)
- One complaint, one offense. One information, one
offense. You cannot have two or more offenses in one
complaint/information unless the law provides a single
penalty for 2 or more offenses, i.e. complex crimes,
compound crimes and special complex crimes.
When the law provides for separate penalties for separate acts
there are distinct offenses.
The last bar question used here is illegal possession of
firearms. X was arrested for illegal possession of .45 caliber
pistol. Then he was also arrested for the same occasion for
illegal possession of 32 caliber pistol (not so powerful). They
were contained in one information as they were caught from
him in one occasion. Is this correct? No, because the law has a
separate penalty for 45 caliber pistol and for a 32 caliber
pistol. They must be contained in separate information.
If you are going to be sued for 2 or more offenses under one
information when they should be separated, you are supposed
to object through a motion to quash. If you do not object, the
defect is waived. You can be penalized in as many offenses as
may be proven.
Rule 120, SECTION 3. Judgment for Two or More Offenses.
When two or more offenses are charged in a single
complaint or information but the accused fails to object to it
before trial, the court may convict him of as many offenses as
are charged and proved, and impose on him the penalty for
each offense, setting out separately the findings of fact and
law in each offense

* so what are you supposed to do? You object, otherwise, it is
waived.
Another important topic is Rule 110, SECTION 15. Place
Where Action Is to Be Instituted.
(a) Subject to existing laws, the criminal action shall be
instituted and tried in the court of the municipality or territory
where the offense was committed or where any of its essential
ingredients occurred (for continuing crimes).
(b) Where an offense is committed in a train, aircraft, or other
public or private vehicle in the course of its trip,
the criminal action shall be instituted and tried in the court of
any municipality or territory where such train, aircraft, or
other vehicle passed during its trip, including the place of its
departure and arrival.
(c) Where an offense is committed on board a vessel in the
course of its voyage, the criminal action shall be instituted and
tried 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 the Philippines but punishable
under Article 2 of the Revised Penal Code shall be cognizable
by the court where the criminal action is first filed. (15a)
- The essence of that provision is venue of criminal cases.
Where should the criminal action be filed.
- If homicide is done in Manila, the information must be
filed in Manila. If the information was filed in QC, can
you file a motion to quash based on improper venue? No.
Your ground should be lack of jurisdiction because
venue is jurisdictional.
- Let me give you an implication. If venue is jurisdictional
in criminal case, it cannot be waived because jurisdiction
is not waivable. On the other hand, improper venue in
civil case can be waived because it is not jurisdictional.
- Illustration: X, under circumstances of death, took the
wallet of Y filled with money in QC. But the money was
found with the wallet in Manila. Where should the
criminal action be filed? In QC, where the act of
asportation took place, not where the stolen article was
found.
- Now, I am affrayed with respect to BP22. A check was
issued to the payee in Manila. The drawee bank is in
Makati. The payee who received the check deposited it in
his account in QC. The drawee bank dishonoured the
check. Can you file BP22 in QC? No. The place of
deposit is not an ingredient of a negotiable check. The
following are the ingredients: 1) the place of issue (the
issue of the check is the contract in itself [S.191, NIL]);
2) the dishonour of the check.
- When will the place of deposit of a check be considered
as an essential ingredient? If the check is a crossed-
check. A cross check is not supposed to be encashed but
deposited.
Dean Rianos Lecture 2014 65
- Let us have the general rule. Where should the criminal
action be filed? In the place where the offense occurred
or where any of its essential ingredients occurred.
- When can a criminal action be filed not in the place
where the act occurred or any of its essential ingredients
occurred? Letter B is one of the exceptions. According to
Justice Regalado, in the course of its trip- not during a
stop-over but while it is moving.
- Cubao Caloocan- bulacan-pampanga-panggasinan-la
union baguio. Habang tumatakbo, nagkatinginan ang 2
pasaherong magkatabi. Ang ginawang ng isang salabahe
binunot ang balisong at sinasaksak ang katabi. Patay.
Nangyari sa Pangasinan. Kung titingnan ang general
rule, saan dapat i-file ang murder case? Pangasinan. But
under letter b of sec. 15, can the criminal case be filed in
baguio city? Yes, the place of arrival. In cubao? No,
there is no court in cubao, you say quezon city. So you
file it in quezon city. Can it be filed in Caloocan? Yes.
There are courts there and it is one of the places where
the bus passed. This is an exception to the general rule.
- The rule is quite different when the crime is committed
in a maritime vessel. Inter-island. In inter-island vessels,
you do not use the place of departure or arrival. Use
instead the first port of entry or where it passed during
the voyage.
- Illustration: if you came from pier of manila, port of
Calapan, Oriental Mindoro- Buac, Marinduque
Romblon Cebu - to the port of Cagayan de Oro. A
crime was committed while the ship was on Buac,
Marinduque. Can the case be filed in Manila? No. It did
not pass manila, it came from Manila. The point of
departure is not included in maritime vessels. ^_^
- Tuloy2x hanggang Cagayan de Oro City, hindi tumigil
ang barko kasi nga may crime. Pwede bang ma-file sa
Cagayan de Oro City? Yes because it became the port of
first entry from the time the crime was committed.
Although the place of arrival is not included but since it
never stopped, the first port of entry became the place of
arrival.
- Another instance where the case can be filed in a place
other than where the crime is committed is in Art. 2 of
RPC. Follow the English and British rule.
- A crime is committed in Philippine ship while in
international waters. It is not committed in Philippine
territory. Can it be cognizable in Philippine courts? Yes.
Can it be filed in the Philippines? Can it be filed in
Pangasinan court? Yes. The first court where it was filed.
Even if it was not committed in Pangasinan.
- If you violate the laws under jurisdiction of
Sandiganbayan, i.e. Art. 210-212 of RPC, RA 3019, etc.,
even if the violation is done in Cotabato, the criminal
action can be filed in Quezon City. Sandiganbayan has
no branches. You have to file it where the court sits
QC. Take note of Sec. 15.
- Rule 110 in relation to Rule 112.
Possible bar exams on Rule 111. Always in the Bar.
RULE 111
Prosecution of Civil Action

- Every person criminally liable is also civilly liable.
- 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 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 the filing thereof in court. EDcICT
- Except as otherwise provided in these Rules, no filing
fees shall be required for actual damages.
- No counterclaim, cross-claim or third-party complaint
may be filed by the accused in the criminal case, but any
cause of action which could have been the subject
thereof may be litigated in a separate civil action. (1a)
- (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. (cir. 57-97)
* do you refer to all civil actions to recover civil liability that
are impliedly instituted with criminal actions? No. You are
only referring to civil actions arising from the offense
charged. That is critical to the understanding of Sec. 1 of Rule
111. The one referred to in Art. 100 of RPC, the one arising
from the offense charged. There are civil liabilities not arising
Dean Rianos Lecture 2014 66
from the offense charged and they are not deemed instituted
impliedly even if they came from the same criminal action.
2004, 2005 Bar exams. MCQ 2011, 2012.
- a single criminal act, lets say serious physical injuries, is
not only a violation of RPC but also a separate source of
obligation called law. There are several sources of obligation:
law, contract, quasi-delicts, delicts, quasi-contracts. This is a
violation of Art. 33 of NCC, not a quasi-delict nor a delict.
This is simply a violation of a separate provision of law, an
independent civil action. This is a violation of RPC. Because
this is a violation of RPC, there is a criminal liability and a
civil liability (Art. 100 RPC). This is the civil liability
impliedly instituted in the criminal action. This art. 33 also
gives rise to a civil liability which is not impliedly instituted.
So, when you commit serious physical injuries, there are 2
civil liabilities: one arising from RPC, one arising from
separate provision of law the Art. 33 which proceeds
independently from the criminal action.
A single act of negligence may be a violation of RPC and the
law on quasi-delicts. If it violates the law on quasi-delict you
call it culpa acquiliana or culpa extracontractual. If it is a
violation of RPC because of reckless imprudence, lack of
foresight, lack of skill, that is culpa criminal or criminal
negligence; a quasi-offense (A365 RPC). If I am driving
recklessly and I hit a pedestrian and the latter got severely
injured, I could be prosecuted for reckless imprudence
resulting in serious physical injuries or civil damages under
quasi-delict. When I am sued in reckless imprudence
resulting in serious physical injuries there is an implied civil
action for the recovery of civil action arising from that act of
reckless imprudence. The quasi-delict is not impliedly
instituted. Art. 33, NCC. The source of obligation is not a
delict. the source is a quasi-delict which is distinct from
delict.
I was sued for serious physical injuries. This is dolo,
intentional. When i was sued, there is necessarily an implied
civil action arising from Art. 100. During the pendency of
criminal action, the offended party filed a separate action for
civil damages under Art. 33. The accused said, MTD the civil
actions for the filing was not reversed and litis pendentia (one
arising from offense charged and one from Art. 33 which
resulted from the same act) should you grant the MTD? No.
There is no litis pendentia. The civil action from Art. 33 is
not the one arising from RPC. It is separate and can proceed
independently without reservation. What should be reserved
is the civil action arising from the offense charged.
Rule 111 SECTION 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. (3a)

There are independent actions Art. 32, 33, 34, 2176 of NCC.
By the way, Art. 32, 33, 34, are obligations arising from law
while Art. 2176 is obligation arising from quasi-delict. But all
of them have the effect of independent civil actions. This is a
favourite topic in the bar. Where your civil actions arise from
Articles 32, 33, 34, 2176 of NCC, even if those civil actions
arise from criminal acts, they proceed independently. They
can even be filed together with the criminal action or
simultaneously. So for example, estafa involves fraud. When
you commit it, it also gives rise to a civil independent action
because of Art. 33 which mentions fraud. So when you sue
someone for estafa, there are 2 civil liabilities: from estafa
and from fraud (Art. 33).
Suppose you are sued for homicide. Homicide is covered by
generic name- physical injuries. So, there is a civil liability
arising from it. That is the one impliedly instituted and an
independent civil action, Art. 33, NCC.
So you can sue him for homicide and at the same time sue
him civilly under Art. 33, NCC. Suppose, he is acquitted of
homicide due to reasonable doubt, the independent civil
action is not extinguished because it is separate. It proceeds
independently of the criminal action regardless of the result.
It is not affected.
The consequences:
The acquittal of the accused will not affect the
independent civil actions.
The independent civil action need not be reserved as
the law itself reserves for them. (what needs to be
reserved are those civil actions arising from delict
which reservation must be done before prosecution
starts presentation of evidence)
With respect to civil actions arising from offense
charged, when that civil action is filed ahead of the
offense charged, the criminal action will take
precedence and that civil action will be suspended
until its final judgment. the independent civil actions
are not suspended because they are independent.
(they are like sovereign states @.@)
Remember, in BP22 cases you cannot reserve the filing of
civil actions. (Sec. 1 of Rule 111) It has to be tried together
with criminal action. Is there an instance where the civil action
in BP22 cases tried separately from the criminal action? Yes.
Only when the civil action is filed ahead of the criminal case.
But if filed together, you cannot reserve the civil action.
By the way, current circulars of SC discourage imprisonment
in BP 22 cases. Payment of fines only which are equivalent to
the amount of checks. Summary procedure. 2004.
Can the accused file a counterclaim or third party complaint in
a criminal case? Yes but it cannot be filed in a criminal action.
Dean Rianos Lecture 2014 67
It has to be filed in a separate civil action. The filing is not
prohibited. What is prohibited is filing in the same criminal
action. Rule 111.
Sec. 3 of Rule 111 is your key to understanding independent
civil action.
Prejudicial Questions
Prejudicial has specific and technical meaning in crim pro.
When there is a prejudicial question it is not found in the
criminal case. It is found in the civil case. That question must
first be resolved before you continue with the criminal case.
The significance of prejudicial question is this. The general
rule is that it is the civil action that is suspended when the
criminal action is subsequently filed in case the civil action is
filed ahead. When there is a prejudicial question, it is the other
way around, it is the criminal action which is suspended. You
have to wait for the resolution of the civil aspect of the case.
A prejudicial question in a civil case may also result even in
the suspension of a preliminary investigation. It may also
result in the suspension of a criminal action.
Short-cut:
1. Look at the cases.
- If both are administrative cases, forget prejudicial
question. The concept of prejudicial question is related
only to criminal procedure.
- An administrative and a civil action, no prejudicial
question.
- A civil and a civil action, no prejudicial question.
- A criminal case and a criminal case, no prejudicial
question.
- A criminal case and a civil case, there may be a
prejudicial question. If you see under the facts of the case
that the criminal case was filed first and the civil action
was filed second, there is no prejudicial question. @.@.
why? Look at the elements of prejudicial question.
Rule 111, SECTION 7. Elements of Prejudicial Question.
The elements of a prejudicial question 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. (5a)
- Suppose the first case is civil and the second case is
criminal. The first element is complied with but do not
conclude that there is already a prejudicial question.
2. Look at the issues of the case. Are the issues
interrelated and connected? Is the resolution of that
issue determinative of whether or not the criminal
action shall proceed. Common sense.
But when you argue whether or not there is a prejudicial
question do not forget to mention the elements of

prejudicial question, so that even if your conclusion is
wrong at least you were able to show to the examiner that
you know the elements. Yours is just a dissenting opinion.
Hehe. ^_^
3. When a case is BP22 case. The first case is a civil
case and the second one is a BP22 case, there is no
prejudicial question. The elements of BP 22 are not
the same with the elements of any civil case. @.@
Illustration: X paid P5M to C. P3M was cash and
P2M was check. After payment, it was discovered
that X was not supposed to pay yet since the debt was
just P3M already covered by cash. The P2M check
was overpayment. X wanted that the check be
returned to him. Y refused. So X filed a civil action
to recover the excess. It so happened that the check
was deposited and it bounced. Now, Y filed BP 22
case. X said that BP 22 case should be suspended due
to prejudicial question; we have to resolve first if
there is overpayment because if there is so, the
issuance of the check that bounced is a redundancy
and it should not have been issued and it should not
have been encashed and it should not have bounced.
Is there a prejudicial question? Looks like it but
actually there is NONE! BP 22 case has different
elements from action for recovery of the sum of
money.
4. You cannot rely on old cases of Bigamy on
prejudicial questions as the elements of prejudicial
question before are different from the elements of
prejudicial question since December 1, 2000. The
cases in bigamy then were resolved under the old
elements of prejudicial question. Here, you use
common sense. Illustration: H married to W1. H
married to W2 during the subsistence of the first
marriage. W1 discovered this. . W1 filed a bigamy
case. H filed an action for declaration of nullity of
marriage on the ground that he married W1 without a
marriage license. Is there a prejudicial question?
Look first at the elements. Argue that the criminal
case was filed ahead when under the Rules it should
have been the civil case that should be filed ahead.
Under the Family Code, the absolute nullity of the
previous marriage may be invoked only for the
purpose of remarriage on the basis only of the final
judgment declaring such previous marriage void.
It is not for the party to say that the first marriage is
void. You have to get a judicial declaration that the
marriage is void. Because of Art. 40, there is no
prejudicial question even if the first case is a civil
case.
Now when you go to arrest in Rule 113, do not forget Section
5.
Dean Rianos Lecture 2014 68
SECTION 5. Arrest Without Warrant; When Lawful. A
peace officer or a private person may, without a warrant, arrest
a person:
(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. IDCcEa
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 7 of Rule 112. (5a)
- This has always been asked in the bar exam.
a) It did not say is about to commit old provision. There
is no direct overt acts. In whose presence? Of the person
making the arrest: need not be a peace officer as he could
be a private person but it is risky ha. There is no problem
with respect to letter a. The problem is on letter b
because of the way the Rule is framed which is not
accurate.
b) How can you have a personal knowledge of
circumstances leading you to believe that crime is
committed when it is not in your presence. What justifies
warrantless arrest here is that the crime has just been
committed. Hot pursuit. Kasi mainit pa eh. SC clarified
this na this personal knowledge is not about personal
knowledge of the crime because he was not there. But
this is personal knowledge of certain circumstances that
will lead him to have a probable belief that you
committed it. How could that be possible? This could be
understood in the light of the case of People v. Apol
(cant find this jud ai in cdasia ). Somewhere in Fort
Bonifacio, Taguig, there was a jeepney plying its usual
route. The passengers of that jeepney were robbed at gun
point by 3 hold-upers. One of the victims was robbed of
his beloved jacket that was very very new and expensive.
Ang ibang pasahero matapos mahold-up nagsi-alisan na
lang, siya hindi; dahil ang sama ng kanyang kalooban
kasi ang bago nyang jacket na pinag-ipunan nya ng kay
tagal2x ay kasama sa hinold-up. Within 30 minutes,
dumating ang mga police nakita siyang tumutulu ang
luha sabay sipon kinukwento ang nangyari sa kanya.
Pinasakay sya sa patrol car at umikot sila para hanapin
yung salarin at ang jacket. Wala pang sampung minuto
sumigaw na ang victim, ayun ang magnanakaw
naglalakad suot pa nya ang jacket ko! sabay hagulgol...
inaresto ang salarin. Warrantless arrest. Ang issue sa SC
invalid ang arrest kasi walang warrant. The crime of

hold-uping was not committed in the presence of the
police officer. Sabi ng SC. The basis of warrantless arrest
is letter b. A crime has just been committed. And the
police officers have knowledge of certain circumstance
that will make him believe that he is the hold-uper
because of the first-hand information given to him by the
victim that the guy was wearing my jacket. So it was
considered a valid arrest.
Remember, Section 5 is not the only ground for warrantless
arrest.
Rule 113, SECTION 13. Arrest After Escape or Rescue. If
a person lawfully arrested escapes or is rescued, any person
may immediately pursue or retake him without a warrant at
any time and in any place within the Philippines. (13)
Rule 114, SECTION 23. Arrest of Accused Out on Bail.
For the purpose of surrendering the accused, the bondsmen
may arrest him or, upon written authority endorsed on a
certified copy of the undertaking, cause him to be arrested by
a police officer or any other person of suitable age and
discretion.
An accused released on bail may be re-arrested without the
necessity of a warrant if he attempts to depart from the
Philippines without permission of the court where the case is
pending. (23a)
RULE 114
Bail
- This is a concept not found in civil case.
- Illustration: X has been accused of homicide. An
information was filed against him. The court has issued a
warrant of arrest but the accused could not be found. He
is as elusive as the Malaysian Airline Flight 370. X asked
his lawyers to apply for bail for him. And bail was
granted. Could you assail the validity of the bail granted
by the court? Yes. Bail can only be given as a rule in
favour of the person in custody of the law. But X is not
in custody of the law as he is a free man. And as a free
man, he cannot avail of bail.
Rule 114, SECTION 1. Bail Defined. 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.
* But is it possible or is there a theory under our Rules that
grants bail to a person who is not even accused of a crime?
Bar 1994. Yes. Bail to secure the appearance of a material
witness to the criminal case.
Rule 119, SECTION 14. Bail to Secure Appearance of
Material Witness. When the court is satisfied, upon proof
Dean Rianos Lecture 2014 69
or oath, that a material witness will not testify when required,
it may, upon motion of either party, order the witness to post
bail in such sum as may be deemed proper. Upon refusal to
post bail, the court shall commit him to prison until he
complies or is legally discharged after his testimony has been
taken.
What is the constitutional basis of the right to bail? The
presumption of innocence.
The most popular question on the bar on bail is on Section 4
and 5 of Rule 114.
SECTION 4. Bail, a Matter of Right; Exception. All
persons in custody shall be admitted to bail as a matter of
right, with sufficient sureties, or releasedon recognizance as
prescribed by law or this Rule (a) before or after conviction
by the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial
Court, and (b) before conviction by the Regional Trial Court
of an offense not punishable by death, reclusion perpetua, or
life imprisonment. (4a)
SECTION 5. Bail, When Discretionary. Upon conviction
by the Regional Trial Court of an offense not punishable by
death, reclusion perpetua, or life imprisonment, admission to
bail is discretionary. The application for bail may be filed and
acted upon by the trial court despite the filing of a notice of
appeal, provided it has not transmitted the original record to
the appellate court. However, if the decision of the trial court
convicting the accused changed the nature of the offense from
non-bailable to bailable, the application for bail can only be
filed with and resolved by the appellate court.
Should the court grant the application, the accused may be
allowed to continue on provisional liberty during the
pendency of the appeal under the same bail subject to the
consent of the bondsman.
If the penalty imposed by the trial court is imprisonment
exceeding six (6) years, the accused shall be denied bail, or
his bail shall be cancelled upon a showing by the prosecution,
with notice to the accused, of the following or other similar
circumstances:
(a) That he is a recidivist, quasi-recidivist, or habitual
delinquent, or has committed the crime aggravated by the
circumstance of reiteration;
(b) That he has previously escaped from legal confinement,
evaded sentence, or violated the conditions of his bail without
valid justification;
(c) That he committed the offense while under probation,
parole, or conditional pardon;
(d) That the circumstances of his case indicate the probability
of flight if released on bail; or
(e) That there is undue risk that he may commit another crime
during the pendency of the appeal.

The appellate court may, motu proprio or on motion of any
party, review the resolution of the Regional Trial Court after
notice to the adverse party in either case.
TRANSCRIPT 10
When you study arrest, isabay nyo na ang searches Rule 126,
in relation to Rule 113.
The issuance of a warrant of arrest by the court presupposes
that there is already a complaint/information filed in court.
But the issuance of search warrant may be done even without
yet an information filed in court. The reason why a judge
conducts preliminary examination to determine probable
cause after the filing of an information is to determine WON
it shall issue a warrant of arrest or dismiss the case.
After a preliminary investigation and the information is filed
in court the court has no obligation to conduct a personal
examination of the complainant and its witness if there is
already preliminary investigation because the investigation
has already been done in the prosecutors office. So, when the
information is already filed in court, the judge will merely
evaluate the evidence that was used by the prosecutor in the
preliminary investigation below or it may require additional
evidence; but the court has no obligation to conduct further
personal examination through searching questions and
answers. The option to conduct by the MTC of a searching
question and personal examination in writing apply only
when the filing is direct. Sec.8b. that is where the personal
examination is only an option.
The reason why the personal examination was given as an
option in the direct filing in MTC in Sec. 8b was because
there was no prior preliminary investigation. That is why it
has the option to conduct a personal examination through a
written searching question and answer. But the moment that
there was a preliminary investigation, that option is not even
granted to the court in Sec. 5 of Rule 112. The option was
only to ask for additional evidence after a personal
evaluation.
This is important because in the issuance of search warrant,
the rule is different. Rule 126, SECTION 4. Requisites for
Issuing Search Warrant. A search warrant shall not issue
except upon probable cause in connection with one specific
offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and
the witnesses he may produce, and particularly describing the
place to be searched and the things to be seized which may be
anywhere in the Philippines.
- This is not a requirement in the issuance of a warrant of
arrest when there is already a preliminary investigation.
Why is the court in the issuance of a search warrant
mandated by the Rules to conduct an examination under
oath or affirmation of the complainant and the witnesses
Dean Rianos Lecture 2014 70
he may produce? Because there is yet no case filed in
court. A search warrant could be issued even without a
case filed. But I was telling you, the issuance of a
warrant of arrest presupposes a complaint/information
filed already in court that has passed a preliminary
investigation. By the way, under the present rule, a
warrant of arrest does not expire. There is no expiration
for that found in Rule 113. What expires is a search
warrant. Look at Rule 126 on the duration of a search
warrant. SECTION 10. Validity of Search Warrant. A
search warrant shall be valid for ten (10) days from its
date. Thereafter, it shall be void. (9)
- This is not found in Rule 113. SECTION 6. Time of
Making Arrest. An arrest may be made on any day
and at any time of the day or night.
- Compare this with Rule 126 SECTION 9. Time of
Making Search. The warrant must direct that it be
served in the day time, unless the affidavit asserts that
the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that
it be served at any time of the day or night.
- GR: the warrant must be served in the daytime
- Exc: the affidavit asserts that the property is on the
person or in the place ordered to be searched, in which
case a direction may be inserted that it be served at any
time of the day or night.
Now, one of the most critical provision of Rule 126 is
SECTION 13. Search Incident to Lawful Arrest. A person
lawfully arrested may be searched for dangerous weapons or
anything which may have been used or constitute proof in the
commission of an offense without a search warrant.
When the person is lawfully arrested he could be searched.
You do not need a search warrant because the search is
incident to a lawful arrest. If arrest is invalid, the subsequent
search and seizure is also invalid. C.f. Pp. v Mengote
If you are a police officer being subjected to cross
examination and you arrested someone without a warrant,
you are supposed to say that you arrested him because either
he has committed a crime or is attempting to commit a crime.
Do not say that you arrested the accused on the basis of
suspicious acting or that the information was reliable because
that would be an illegal arrest. If he is suspiciously acting, the
valid act would be to tell the court that you stopped him and
frisked him under the rule of stop and frisk rule. This is not a
full scale arrest, therefore the existence of a crime is not
necessary for a Terry Search. You only need a genuine reason
to ask him question and to frisk him which should not be
intrusive but only tapping his outside clothing. But when you
tapped his waist and there was an outline of a gun there is
now a probable cause to open to his waist and ask him
whether that gun is licensed or not. If there is no proof that he
is licensed then there is now a reason to arrest him for illegal
possession of firearms.

Remember Sec. 4, Rule 126, requirements for the issuance of
search warrant. Those requirements are not mandatory for the
issuance of a warrant of arrest.
There is a doctrine in jurisprudence that says that when you
lawfully arrest a person you can lawfully search him. But
when you lawfully search him the place to be searched must
only be that place within his immediate control. Because of
this rule, many law enforcement officers have been charged
administratively.
Lets say you arrested me lawfully due to a warrant of arrest. I
can be searched my person and in my immediate control
where I can search for weapons or destroy evidence. Suppose
the officer went to the 2nd floor and made halughog and his
warrant is only a warrant of arrest, can you do that upstairs
and search? No, that is no longer within his immediate control.
He cannot reach for weapon in the second floor when he is in
the ground floor handcuffed. C.f. People v. Lian Siri, People
v. Valerozo when handcuffed, you have no authority
anymore to search the cabinet even in the sala where he is
because he cannot reach for a weapon or evidence to be
destroyed. But if you are a law enforcement officer do not put
that in record that he is handcuffed. ;)
Are there instances a search incident to a valid arrest where
there is no need for a search warrant? Yes.
1. When the search was with consent.
But you can argue that there was no full consent since while
there was no actual intimidation, there was a moral pressure in
the presence of heavily armed people.
2. Plain view doctrine
- Kitang kita ang contraband. The officer must have the
right to be in that place and not a trespasser.
- Illustration: R was serving a warrant of arrest to the
accused. R saw in the living room of the accused. Upon
arrest, R, a trained officer, happened to see on the table,
shabu in 10 sachets. R got it and duly presented it to his
superiors. The accused was also sued for illegal
possession of prohibited drugs. Is the confiscation valid?
Yes. No need for search warrant. Plain view. It would
not be plain view if hinanap sa 2nd floor. But if pag-
search sa cabinet was within immediate control of the
accused and may shabu, included pa rin sa plain view
doctrine since the shabu was inadvertently discovered
and the cabinet was within his immediate control.
- Plain view doctrine does not only apply to the sense of
sight. It could also be the sense of smell. C.f. People v.
Claudio.
3. Regulatory power of the state
- Sanitation inspector in inspecting whether the restaurants
follow the sanitary rules of the government
Dean Rianos Lecture 2014 71
4. Customs searches
5. Airports and transportation terminals
Is there any other else? When a wife searches the attach cases
of husband... ooh... no search warrant is necessary ^_^
Look at this. X is a known drug dealer but he always manages
to be released due to technicalities. One day he was in the park
and carried a bag. Then a police who knew him well suspected
that there was shabu in the bag. When their eyes met, the
accused evaded the polices gaze. The police arrested him and
opened his bag. He found shabu and marijuana. During the
trial, the accused moved to suppress the evidence. If you were
the judge, would you suppress the evidence? He was arrested
for acting suspiciously and that is not a ground for a
warrantless arrest. Suspicions no matter how great are not
grounds for warrantless arrest and searches.
Rule 115
Rights of the Accused
Right against Self-incrimination
- Can be invoked in any case where you will be possible
subjected to criminal prosecution. (so, this even applies to an
administrative case, legislative investigations, civil case)
- It applies to testimonial compulsions.
Illustration: Rape case. During the trial, the prosecution
presented as exhibit the shorts of a male found in the crime
scene and asked the accused to wear it. Accused refused to
wear it invoking his right against self-incrimination. Can he do
this? No. It does not involve testimonial compulsion.
We already discussed the distinction between the accused and
a witness in invoking the right against self-incrimination. A
mere witness cannot refuse to be a witness but an accused can
totally refuse. A witness has to wait for the questions to be
asked of him for him to invoke the right against self-
incrimination. But if his answer would not subject him to
criminal prosecution, he cannot refuse to answer. But he can
refuse to answer even if the liability would only be
administrative but the penalty is punitive in nature like fine.
So it is as if criminal in nature. Supposed he is asked of his
commission of the crime 25 years ago, he cannot invoke his
right against self-incrimination because the offense and
penalty already prescribed so he cannot anymore refuse.
Remember Beltran v. Samson,
Also remember the right to speedy trial can only be invoked
by the accused in a criminal case. Others can only invoke the
right to speedy disposition of the case

When you are in a criminal trial and the prosecution has no
witnesses against you, do not invoke the right to speedy trial
without insisting first on a trial.
But normally courts will give him 3 times, 3 chances to
present evidence. If after 3 chances, no evidence yet could be
presented by the prosecution, on the fourth hearing you now
insist on a trial. If not, then ask for the dismissal of the case on
the ground of the violation of the right to speedy trial. And
when your case is dismissed on that ground that is not a
dismissal. That is an acquittal. The prosecution can no longer
appeal. Now, suppose you are asked, X was acquitted, can the
prosecution file an MR? No, for you would put him on double
jeopardy. Can the prosecution move for an MNT? No, as that
will put him in another danger of being convicted. Can the
prosecution appeal? No. How do you question an acquittal
without violating the rules against double jeopardy? Rule 65.
Show that the judge has committed grave abuse of discretion
amounting to lack or excess of jurisdiction. If the court has
abused its discretion gravely, the first element of double
jeopardy which is the court should have competent jurisdiction
is taken out of the picture. While appeal is prohibited,
certiorari is not. Because when the court gravely abuses its
discretion, the acquittal was rendered without jurisdiction.
And an acquittal rendered jurisdiction is not a valid acquittal.
Therefore if the acquittal is wrong, he can still be charged.
There is no double jeopardy. There is only one jeopardy.
Double jeopardy means double danger.
Rule 116
Arraignment
Purpose: to comply with due process
A person has a constitutional right to be informed of the nature
and cause of accusation.
The first duty of the judge in arraignment is to ask him if he
has a counsel. If he has none, to ask him if he wants a counsel.
Rule 116, SECTION 6. Duty of Court to Inform Accused of his
Right to Counsel. Before arraignment, the court shall
inform the accused of his right to counsel and ask him if he
desires to have one. Unless the accused is allowed to defend
himself in person or has employed counsel of his choice, the
court must assign a counsel de oficio to defend him. (6a)
Under our present rules, can the accused be arraigned through
his counsel? No. It must be personal to the accused.
How is an accused arraigned? What are the matters to be
asked during arraignment? Look at Rule 116.
1. The accused is given a copy of the
complaint/information.
2. Reading the same in the language/dialect known to him
3. Asking him whether he pleads guilty or not guilty.
Dean Rianos Lecture 2014 72
What are the options of the accused before he enters a plea of
guilty or not guilty?
a. He can file a Motion for Bill of Particulars R116,
SECTION 9. Bill of Particulars. The accused
may, before arraignment, move for a bill of
particulars to enable him properly to plead and
prepare for trial. The motion shall specify the
alleged defects of the complaint or information and
the details desired.
b. He can move for the suspension of the arraignment
R116, SECTION 11. Suspension of Arraignment.
Upon motion by the proper party, the arraignment
shall be suspended in the following cases:
(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. In such case,
the court shall order his mental examination and, if
necessary, his confinement for such purpose;
(b) There exists a prejudicial question; and
(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. (12a)
Illustration: When Napoles was arraigned for serious illegal
detention, she moved for the suspension of her arraignment on
the ground that she was suffering from irregular high blood
pressure. Is that a ground for the suspension of arraignment?
NO! High blood pressure is not found in Sec. 11. <Sabi ng
lawyers sa likod, you should invoke unsound mind! Hehe..>
c. Motion to Quash. Rule 117, SECTION 1. Time to
Move to Quash. At any time before entering his
plea, the accused may move to quash the complaint
or information.
Rule 116 actually has a very big chance of being asked on
several aspects.
The accused is asked on whether or not he pleads guilty or not
guilty. He did not answer, what plea will be entered in the
record? Not guilty.
* A plea of guilty is an unconditional admission of guilt with
respect to the offense charged. It forecloses the right to defend
oneself from said charge and leaves the court with no
alternative but to impose the penalty fixed by law under the
circumstances. (People vs. Ng Pek, 81 Phil. 563). In this case,
the defendant was only allowed to testify in order to establish
mitigating circumstances, for the purpose of fixing the

penalty. Said testimony, therefore, could not be taken as a trial
on the merits, to determine the guilt or innocence of the
accused.
In view of the assertion of self-defense in the testimony of the
accused, the proper course should have been for the court a
quo to take defendant's plea anew and then proceed with the
trial of the case, in the order set forth in Section 3 Rule 119 of
the Rules of Court:
"SEC. 3. Order of trial. The plea of not guilty having been
entered, the trial must proceed in the following order:
"(a) The fiscal, on behalf of the People of the Philippines,
must offer evidence in support of the charges.
"(b) The defendant or his attorney may offer evidence in
support of the defense.
"(c) The parties may then respectively offer rebutting evidence
only, unless the court, in furtherance of justice, permit them to
offer new additional evidence bearing upon the main issue in
question.
"(d) When the introduction of evidence shall have been
concluded, unless the case is submitted to the court without
argument, the fiscal must open the argument, the attorney for
the defense must follow, and the fiscal may conclude the
same. The argument by either attorney may be oral or written
or partly written, but only the written arguments, or such
portions of the same as may be in writing, shall be preserved
in the record of the case."
In deciding the case upon the merits without the requisite trial,
the court a quo not only erred in procedure but deprived the
prosecution of its day in court and right to be heard.
This Court now turns to Section 2, Rule 122 of the Rules of
Court, which provides that: "The People of the Philippines can
not appeal if the defendant would be placed thereby in double
jeopardy." The present state of jurisprudence in this regard is
that the above provision applies even if the accused fails to file
a brief and raise the question of double jeopardy
(People vs. Ferrer, L-9072, October 23, 1956; People vs. Bao,
106 Phil. 243; People vs. de Golez, 108 Phil. 855)
The next issue, therefore, is whether this appeal placed the
accused in double jeopardy. It is settled that the existence of a
plea is an essential requisite to double jeopardy
(People vs. Ylagan, 58 Phil. 851; People vs. Quimsing, L-
19860, December 23, 1964). In the present case, it is true, the
accused had first entered a plea of guilty. Subsequently,
however, he testified, in the course of being allowed to prove
mitigating circumstances, that he acted in complete self-
defense. Said testimony, therefore as the court a
quo recognized in its decision had the effect of vacating his
plea of guilty and the courta quo should have required him to
plead anew on the charge, or at least direct that a new plea of
not guilty be entered for him. This was not done. It follows
that in effect there having been no standing plea at the time the
court a quo rendered its judgment of acquittal, there can be no
double jeopardy with respect to the appeal herein. 1
Furthermore, as afore-stated, the court a quo decided the case
upon the merits without giving the prosecution any
opportunity to present its evidence or even to rebut the
testimony of the defendant. In doing so, it clearly acted
without due process of law. And for lack of this fundamental
Dean Rianos Lecture 2014 73
pre-requisite its action is perforce null and void. The acquittal,
therefore, being a nullity for want of due process, is no
acquittal at all, and thus can not constitute a proper basis for a
claim of former jeopardy (People vs. Cabero, 61 Phil. 121; 21
Am. Jur. 2d., 235; McCleary vs. Hudspeth, 124 Fed. 2d., 445)
||| (People v. Balisacan, G.R. No. L-26376, August 31, 1966)
* REMEDIAL LAW; CRIMINAL PROCEDURE; PLEA OF
GUILTY; PLEA OF GUILTY TO THE CRIME CHARGED
JUSTIFIES IMPOSITION OF PENALTY TO WHICH
ACCUSED PLEADED AND NOT TO LESSER PENALTY.
It must be emphasized that accused-appellant did not plead
to a lesser offense but pleaded guilty to the rape charges and
only bargained for a lesser penalty. In short, as aptly observed
by the Solicitor General, he did not plea bargain but made
conditions on the penalty to be imposed. This is erroneous
because by pleading guilty to the offense charged, accused-
appellant should be sentenced to the penalty to which he
pleaded. It is the essence of a plea of guilty that the accused
admits absolutely and unconditionally his guilt and
responsibility for the offense imputed to him. Hence, an
accused may not foist a conditional plea of guilty on the court
by admitting his guilt provided that a certain penalty will be
meted unto him.
2. ID.; ID.; ID.; CONDITIONAL PLEA EQUIVALENT TO
PLEA OF NOT GUILTY: NO DOUBLE JEOPARDY;
SINCE CONVICTION WAS BASED ON A VOID PLEA
BARGAINING. Accused-appellant's plea of guilty is
undoubtedly a conditional plea. Hence, the trial court should
have vacated such a plea and entered a plea of not guilty for a
conditional plea of guilty, or one subject to the proviso that a
certain penalty be imposed upon him, is equivalent to a plea of
not guilty and would, therefore, require a full-blown trial
before judgment may be rendered. In effect, the judgment
rendered by the trial court which was based on a void plea
bargaining is also void ab initio and can not be considered to
have attained finality for the simple reason that
a void judgment has no legality from its inception. Thus, since
the judgment of conviction rendered against accused-appellant
is void, double jeopardy will not lie.
3. ID.; ID.; ID.; APPELLANT'S FAILURE TO QUESTION
THE PROCEDURAL ERRORS IN THE FIRST
ARRAIGNMENT IS DEEMED A WAIVER OF HIS RIGHT
TO QUESTION THE SAME. Nonetheless, whatever
procedural infirmity in the arraignment of the accused-
appellant was rectified when he was re-arraigned and entered a
new plea. Accused-appellant did not question the procedural
errors in the first arraignment and having failed to do so, he is
deemed to have abandoned his right to question the same and
waived the errors in procedure.
4. ID.; ID.; PLEA OF GUILTY TO CAPITAL OFFENSE;
LEGAL REQUIREMENTS OF SUCH PLEA. Under the
present rule, if the accused pleads guilty to capital offense,
trial courts are now enjoined: (a) to conduct searching inquiry
into the voluntariness and full comprehension of the
consequences of his plea; (b) to require the prosecution to
present evidence to prove the guilt of the accused and the
precise degree of his culpability; and (c) to ask the accused if
he so desires to present evidence in his behalf and allow him

to do so if he desires. This Court, in a long line of decisions
imposed upon trial judges to comply with the procedure laid
down in the rules of arraignment, particularly the rules
governing a plea of guilty to a capital offense in order to
preclude any room for reasonable doubt in the mind of either
the trial court or of this Court, on review, as to the possibility
that there might have been some misunderstanding on the part
of the accused as to the nature of the charges to which he
pleaded guilty and to ascertain the circumstances attendant to
the commission of the crime which justify or require the
exercise of a greater or lesser degree of severity in the
imposition of the prescribed penalties. Apart from the
circumstances that such procedure may remove any doubt that
the accused fully understood the consequences of his plea is
the fact that the evidence taken thereon is essential to the
fulfillment by this Court of its duty of review of automatic
appeals from death sentences.
5. ID.; ID.; ID.; CASE AT BAR. We have carefully
reviewed the record of this case and are convinced that the
trial judge has faithfully discharged his bounden duty as
minister of the law to determine the voluntariness and full
understanding of accused-appellants' plea of guilty. The
absence of the transcript of stenographic notes of the
proceedings during the arraignment do not make the procedure
flawed. The minutes of the proceedings indubitably show that
the judge read the Informations to the accused-appellant both
in English and Tagalog, asked him questions as to his
understanding of the consequences of his plea, his educational
attainment and occupation. Accused-appellant could have
known of the consequence of his plea having pleaded twice to
the charges against him. In fact, in the two (2) letters sent to
the trial court judge, accused-appellant not only admitted his
"sins" but also asked for forgiveness and prayed for a chance
to reform.
6. ID.; ID.; IMPROVIDENT PLEA OF GUILTY;
IMPROVIDENT PLEA OF GUILTY LOSES
SIGNIFICANCE WHEN THE CONVICTION IS
PREDICATED ON EVIDENCE PROVING THE
COMMISSION OF THE CRIME. While we have in a
catena of cases set aside convictions based on pleas of guilty
in capital offenses because of the improvidence of the plea, we
did so only when such plea is the sole basis of the judgment of
the condemnatory judgment. Thus, when the trial court in
obedience to this Court's injunction, receives evidence to
determine precisely whether or not the accused has erred in
admitting guilt, the manner in which the plea of guilty is made
loses legal significance, for the simple reason that the
conviction is predicated not on the plea but on the evidence
proving the commission by the accused of the offense
charged. In such case, it cannot be claimed that defendant was
sentenced to death without having been previously informed
of the nature of the charges against him and of the qualifying
and aggravating circumstances recited in the information, as
he is fully apprised not only of the allegations in the
information but of the entire evidence of the prosecution.
||| (People v. Magat, G.R. No. 130026, May 31, 2000)
When there is a conditional plea, the plea should be not guilty
and the hearing should be held.
Dean Rianos Lecture 2014 74
SECTION 1. Arraignment and Plea; How Made.
(a) The accused must be arraigned before the court where the
complaint or information was filed or assigned for trial. The
arraignment shall be made in open court by the judge or clerk
by furnishing the accused with a copy of the complaint or
information, reading the same in the language or dialect
known to him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses other
than those named in the complaint or information. CTaIHE
(b) The accused must be present at the arraignment and must
personally enter his plea. Both arraignment and plea shall be
made of record, but failure to do so shall not affect the validity
of the proceedings.
(c) When the accused refuses to plead or makes a conditional
plea, a plea of not guilty shall be entered for him. (1a)
(d) When the accused pleads guilty but presents exculpatory
evidence, his plea shall be deemed withdrawn and a plea of
not guilty shall be entered for him. (n)
(e) When the accused is under preventive detention, his case
shall be raffled and its records transmitted to the judge to
whom the case was raffled within three (3) days from the
filing of the information or complaint. The accused shall be
arraigned within ten (10) days from the date of the raffle. The
pre-trial conference of his case shall be held within ten (10)
days after arraignment. (n) aIDHET
(f) The private offended party shall be required to appear at
the arraignment for purposes of plea bargaining, determination
of civil liability, and other matters requiring his presence. In
case of failure of the offended party to appear despite due
notice, the court may allow the accused to enter a plea of
guilty to a lesser offense which is necessarily included in the
offense charged with the conformity of the trial prosecutor
alone. (cir. 1-89)
(g) Unless a shorter period is provided by special law or
Supreme Court circular, the arraignment shall be held within
thirty (30) days from the date the court acquires jurisdiction
over the person of the accused. The time of the pendency of a
motion to quash or for a bill of particulars or other causes
justifying suspension of the arraignment shall be excluded in
computing the period. (sec. 2, cir. 38-98)
SECTION 2. Plea of Guilty to a Lesser Offense. At
arraignment, the accused, with the consent of the offended
party and the prosecutor, may be allowed by the trial court to
plead guilty to a lesser offense which is necessarily included
in the offense 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.
4, circ. 38-98)
Illustration: X was accused of rape with homicide where the
penalty is reclusion perpetua. X pleaded guilty to that capital
offense. The court immediately imposed upon him penalty. Is
the court correct? No. When one pleads guilty to a capital
offense, the court has the duty to conduct searching questions

to determine the voluntariness of the plea and the full
comprehension of the consequences of the plea. The court will
also order to prosecute to prove the guilt of the accused and
determine the precise degree of culpability. Sec. 3. But when
the offense is not capital, (i.e. Homicide) Rule 116, SECTION
4. Plea of Guilty to Non-capital Offense; Reception of
Evidence, Discretionary. When the accused pleads guilty to
a non-capital offense, the court may receive evidence from the
parties to determine the penalty to be imposed.
RULE 117
Motion to Quash
- Also an omnibus motion
- Memorize the grounds
SECTION 3. Grounds. The accused may move to quash
the complaint or information on any of the following
grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the
offense charged;
(c) That the court trying the case has no jurisdiction over the
person of the accused;
(d) That the officer who filed the information had no
authority to do so;
(e) That it does not conform substantially to the prescribed
form;
(f) That more than one offense is charged except when a
single punishment for various offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute
a legal excuse or justification; and
(i) That the accused has been previously convicted or
acquitted of the offense charged, or the case against him was
dismissed or otherwise terminated without his express
consent. (3a)
SECTION 9. Failure to Move to Quash or to Allege Any
Ground Therefor. The failure of the accused to assert any
ground of a motion to quash before he pleads to the complaint
or information, either because he did not file a motion to
quash or failed to allege the same in said motion, shall be
deemed a waiver of any objections except those based on the
grounds provided for in paragraphs (a), (b), (g), and (i) of
section 3 of this Rule. (8)
* if you do not file a motion to quash the grounds for motion
to quash are waived. And if you filed a motion to quash and
Dean Rianos Lecture 2014 75
you did not use the other grounds, they are also waived. What
are those grounds that are not waived? paragraphs (a), (b),
(g), and (i) of section 3 of this Rule.
When there is a ground for MTQ, the court is not obligated to
dismiss. If the defect can be corrected by amendment, the
court will order amendment. For example, if the facts actually
state the charge wrongly or defectively, the court will order
the prosecutor to make the proper corrections because the
court is not obligated to dismiss the case. If it can be corrected
then correct it.
What cannot be corrected is lack of jurisdiction. It is very
difficult to correct it if the court really has no jurisdiction.
Rule 117, SECTION 4. Amendment of Complaint or
Information. If the motion to quash is based on an alleged
defect of the complaint or information which can be cured by
amendment, the court shall order that an amendment be made.
(4a)
If it is based on the ground that the facts charged do not
constitute an offense, the prosecution shall be given by the
court an opportunity to correct the defect by amendment. The
motion shall be granted if the prosecution fails to make the
amendment, or the complaint or information still suffers from
the same defect despite the amendment.
* pag na-grant ang MTQ, na-dismiss ang case, pwede pa bang
i-refile ang case kahit na sabihin mo di na pwede kasi double
jeopardy? Pwede maka-refile unless the grounds are
prescription and double jeopardy
Now, lets learn the concept of Double jeopardy. Double
jeopardy means double danger. So that there could be double
danger for being penalized for the offense, there must be a
first danger or first jeopardy. If there is no first danger, there
would be no second danger; there would be no double
jeopardy.
Requisites for the first jeopardy:
a) A court of competent jurisdiction
b) A valid complaint or information
c) A valid plea or arraignment
d) Previous conviction or a previous acquittal or
dismissal without the express consent of the accused.
When all of these are present he can no longer be sued for the
same offense or an attempt or frustration of that offense or of
an offense that includes that offense or is necessarily included
therein.
X was convicted by the court with murder. The court has
jurisdiction. There was a valid information, valid plea;
convicted. First jeopardy commences. He cannot be sued for
murder, frustrated murder, attempted murder, all those

included there, homicide, frustrated homicide, attempted
homicide, physical injuries.
X was convicted of murder by MTC. Everybody forgot the
law. after conviction one prosecutor remembered that RTC is
in the jurisdiction of RTC. Can he be charged of murder in
RTC? Yes. The first element of first jeopardy which was a
court of competent jurisdiction is absent. Therefore, when he
was charged of murder by MTC there was no danger of being
validly imprisoned as it was a court without jurisdiction.
An information for homicide was filed in RTC Manila. It was
signed and certified by the city fiscal of Angeles City. The
accused pleaded not guilty. Can he be charged again of
homicide in the same court by an information signed by the
city fiscal of Manila. Yes. Because the officer who signed the
information is not authorized to do so, there was no valid
information. The city fiscal of Angeles City cannot file an
information in Manila.
X was sued for adultery under an information filed by the
prosecutor of the city of manila. It was filed in manila because
the crime was committed there. She was acquitted. Can it be
refiled? Yes. The crime of adultery can only be filed upon the
complaint of the offended party not upon information. This is
a private crime. Read Rule 110, Sec. 5. x x x 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 both are alive, nor, in any case, if the
offended party has consented to the offense or pardoned the
offenders. x x x
You are required to sue both offenders in adultery and
concubinage. The defences available are consent and pardon.
Kailangan may previous acquittal or previous conviction.
Dismissal is not acquittal. Dismissal lang. Dapat without his
express consent. If my case is dismissed by the prosecutor,
hindi man lang ako tinatanatong basta dinismiss lang at ni-
refile, I can invoke double jeopardy. It was not without my
express consent. Kapag ikaw ang nag-file ng MTQ at
dinismiss ng court, malaki ang posibilidad na pwede ma-refile.
Because it was dismissed with your consent. Ikaw mismo ang
nag-file ng MTQ. Maliban na lang kung ang ground mo sa
MTQ is prescription or double jeopardy, di mo na yan
marefile.
* The doctrine that reckless imprudence under Article 365 is a
single quasi-offense by itself and not merely a means to
commit other crimes such that conviction or acquittal of such
quasi-offense bars subsequent prosecution for the same quasi-
offense, regardless of its various resulting acts, undergirded
this Court's unbroken chain of jurisprudence on double
jeopardy as applied to Article 365 starting with People v.
Diaz, decided in 1954|||(Ivler y Aguilar v. Modesto-San Pedro,
G.R. No. 172716, November 17, 2010)
Dean Rianos Lecture 2014 76
Rule 118
Pre-trial
SECTION 2. Pre-trial Agreement. All agreements or
admissions made or entered during the pre-trial conference
shall be reduced in writing and signed by the accused and
counsel, otherwise, they cannot be used against the accused.
The agreements covering the matters referred to in section 1 of
this Rule shall be approved by the court.
6. Very strict sa criminal case. Walang ganyan sa civil
case.
Rule 119
SECTION 23. 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. (15a)
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 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. (n)
* in criminal case, the court can dismiss the case on its own
initiative. But when it dismisses the case, it must first give the
prosecution the opportunity to be heard. The ground in
criminal case for demurrer - insufficiency of evidence. In the
civil case it has the same concept but named differently- under
the facts and law the plaintiff is not entitled to the relief.
No need of leave of court for demurrer in civil case. But in
criminal case there are 2 types of demurrer.
1. With leave of court
2. Without leave of court

Upon granting the demurrer in the civil case, the case is
dismissed dahil MTD yan. Plaintiff can appeal.
Upon granting the demurrer in the criminal case, the case is
dismissed. Hindi yan dismissal. Ang tawag dun ay acquittal
kaya walang appeal.
2 kinds of dismissal that even with the consent of the accused
it is not dismissal but actually an acquittal:
a) MTD on the ground of violation of the right to
speedy trial.
b) Demurrer to evidence moved by the accused.
There is also an MR/MNT in a criminal case. Rule 121
SECTION 2. Grounds for a New Trial. The court shall
grant a new trial on any of the following grounds:
(a) That errors of law or irregularities prejudicial to the
substantial rights of the accused have been committed during
the trial; (sa civil case is FAMEN)
(b) That 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. (sa civil
case is NDE)
SECTION 3. Ground for Reconsideration. The court shall
grant reconsideration on the ground of errors of law or fact in
the judgment, which requires no further proceedings
Meron ding appeal sa criminal case.
Ang fresh period of 15 days is also applicable to criminal case.
Yu v. Tatad.
SPECIAL PROCEEDING
RULE 1, SECTION 3. Cases Governed. These Rules shall
govern the procedure to be observed in actions, civil or
criminal, and special proceedings. x x x
(c) A special proceeding is a remedy by which a party seeks to
establish a status, a right, or a particular fact.
Are the special proceedings outlined in the rules of court
exclusive? No. There are also those found outside the rules of
court i.e, corporate rehabilitation, insolvency, suspension of
papers, arbitration, writ of amparo, habeas data, etc.
A writ of Amparo is a special proceeding. It is a remedy by
which a party seeks to establish a status, a right or particular
fact. It is not a civil nor a criminal action, hence, the
application of the Revised Rule on Summary Procedure is
seriously misplaced.||| (De Lima v. Gatdula, G.R. No. 204528,
February 19, 2013)
Dean Rianos Lecture 2014 77
Settlement of estates
Illustrations:
1. My only living parent died. I am the only heir. There is no
will. Papa left considerable estate in both personal and real
properties. What is the most efficient way of settlement of the
estate of my deceased parent? I will simply execute an
affidavit of self-adjudication or self-adjudication by a sole
heir.
Suppose there are debts, I can still do that provided I pay for
the debts. Suppose there are taxes, I will have to pay for it.
You file your affidavit with the Register of Deeds. RD will
order the publication of (NOT THE AFFIDAVIT) the notice
that there was an affidavit of self-adjudication in newspapers
of general circulation for 3 consecutive weeks. If all has been
complied with, RD will prepare the necessary changes in the
real property.
2. Daddy died and left substantial amount of assets. No debts,
all taxes paid. There is a will. I am the only heir in the will. I
executed an affidavit of self-adjudication. It was recognized
by the RD after the proper publication. Can I execute an
affidavit of self-adjudication? No. Rule 75, Section 1. No will
shall pass either real or personal estate unless it is proved and
allowed in the proper court. Subject to the right of appeal,
such allowance of the will shall be conclusive as to its due
execution.
3. X died and he had substantial estate. He had no will nor
heirs. What principle will come in? Rule 91. Escheats. It is a
process by which the government claims property where there
is no possible private owner anymore. The philosophy is so
that the private individuals will not be quarrelling over the
estate and so the government will come to the picture. The
government files an escheat proceeding through the SolGen or
its representatives. The publication here in escheats is not 3
consecutive weeks but rather 6 consecutive weeks. It is not the
national government which will be the beneficiary of the
estate. It will be the city or municipality concerned. Suppose
an heir appears, he must file a claim within 5 years from the
distribution of estate.
4. X died and he had substantial estates. He died without a
will. He had several heirs. Assuming the debts and taxes are to
be paid willingly by the heirs, how is the estate settled?
a) extrajudicial settlement like a compromise or amicable
settlement, the heirs will settle the estate among themselves
but if they could not agree on how the settlement could be
made, ther are 2 ways:
a) One may file for a petition for letters administration
b) One may file for a petition for partition no longer a
spec pro but already a special civil action R69.
5. X died with a will and several heirs. They brought the will
to their lawyer and the latter executed a deed of extrajudicial
partition among the heirs strictly following the will.

This is not valid because there is a will which must be
probated first.
Probate
How to commence probate? The testator himself during his
lifetime filed a petition for probate, can this be done? Yes!
Can there be allowance of the will without formally filing a
petition? Yes, the one in custody will deliver to the clerk of
court of the court having jurisdiction and that is equivalent to
the filing of the petition. The clerk of court is now going to
send notices to devisees, heirs and legatees. It is like
commencing the petition.
Who commences the petition? Executor, legatee, devisee, heir
or any person interested to the estate.
Is there a publication? Yes. What is the issue in the probate of
the will? Whether or not the will was duly executed. It is about
the extrinsic validity of the will. The probate court has no
jurisdiction to determine the real ownership of the property.
Its duty is to ascertain: Whether the formalities were followed.
Whether the testator was of unsound mind.
Is there are instance where the court can deal with the intrinsic
validity of the will or ownership of the property? Yes. If all
the people involved are all heirs and they agree to such
determination.
Writ of Amparo
What rights does it protect? Life, liberty or security. Not
property.
It involves Forced disappearances and extrajudicial killings.
You dont file it in the MTC. The lowest court you can go to is
RTC, going up including SB, CA and SC.
If you lose in the lower courts, go to SC under Rule 45 but you
can raise question of facts or mixed questions of facts and
laws as an exception to the rule that only questions of law can
be raised on Rule 45. (writ of amparo. writ of habeas data, writ
of kalikasan)
Rule 103 and Rule 108
Change of Name and Correction of Entries in the Civil
Registers
Not all change of name and correction of entries will use Rule
103 and Rule 108.
RA 9048
Dean Rianos Lecture 2014 78
RA 10172 This allow corrections of entries in City or
Municipal Civil Registrar, Clerks of Courts of the Sharia
Courts, or the Consul General
RA 9048 allows:
1. Correction of entries in the civil registry because of
clerical or typographical error (an error in writing,
transcribing in the course of the performace of clerk
duty)
2. Change in First name or Nickname (means any
second name after your first name)
Example: your name is Maria Felisa. First name is
Maria, second name is Felisa. Hindi Feling, or
mayang, or isay.
c.f. Lee v. CA
You cannot change entries in the civil register because to
change is to put something else to supplant the original.
Correction is to set right or to make right. But with respect to
first name or nickname, it could not only be changed, it could
also be corrected. Other entries cannot be changed but can
only be corrected.
So you cannot change the surname but you may correct it for
clerical or typographical error. If my surname is Riano, I
cannot, through this law, be changed to Mariano or
Rianobaby. If I want it to be changed, it cannot be done
administratively, I will go to court through Rule 103. If my
citizenship in my birth certificate is written as Mexican, I
cannot change it administratively to Filipino, I have to go to
court. But unless, it is a clear clerical or typographical error. It
is not correct to say that a surname cannot be corrected. It
cannot be changed without a judicial order.
GR: Art. 412 and Art. 376 NCC
Go to Rule 103 and Rule 108.
ARTICLE 412.No entry in a civil register shall be changed or
corrected, without a judicial order.
ARTICLE 376.No person can change his name or surname
without judicial authority.
A correction of the surname must be in relation to other
available documents.
Hyphen is omitted. There are names that are hyphenated. The
hyphen is part of the name, hence, if omitted, the name is
considered misspelled.
Example:
His father is Cipriano Ladines Mag-aso while his mother is
Concepcion Tan Julag-ay.
The names of his parents were correctly entered in his birth
certificate, but his own name is entered as Santiago Julagay
Magaso when it should be Santiago Julag-ay Magaso.
This is a clerical error within the meaning of R.A. No. 9048

This is not a change of surname. This is setting right what has
to be corrected. Ang hindi pwede na gawin through the Civil
Registrar ay kung baguhin niya ang kanyang apilyedo from
Mag-aso to Mag-pusa. Contest sya sa court.
Pumasok ang RA 10172. Sabi nito na pwede rin daw ma-
correct ang following:
Date of birth- only the month and the day. Hindi pwedeng i-
correct ang year of birth. Ito ang kini-criticize na law dahil
kung ang mali ay ang year of birth dito papasok ang RA 9048.
Sabi ng Civil Registrar, <tama ang Civil Registrar>
Kahit sinasabing di pwedeng palitan ang year of birth, kung
hayagan namang clerical error, pwede i-correct. Hindi
change.
Ang correction kasi yung hayagang mali, tinatama mo.
Nasa records, date of birth ng ama, March 20, 1924.
Date of birth ng ina, January 25, 1930.
Ang bata isinilang, November 10, 1950. Yan ang totoo.
Pero nung kumuha siya ng birth certificate para mag-abroad,
ang kanyang date of birth, November 10, 1850.. hehe... nauna
pa syang isinilang sa kanyang magulang. Hehe...
Ang sabi ng nag-oopose, bawal sa RA 10172 na palitan ang
year of birth, nakalagay dun month and day. Ang sabi ng Civil
Registrar, kung pwede lang magsalita ng masama, Ulol ba
kayo? this is a patent and clearly clerical error. This is not a
change in the year of birth but only a correction. It is not
possible for a child to be born almost 100 years before the
parents.
Sex basta patently clearly a clerical error.
Nagkakadiskubrehan to pag kumukuha ng passport. Nangyari
sakin to. Pinapalitan ko, civilly administratively. Hindi
correction, but change, pwede yun. Ground is I have used that
continuously and habitually and I have been publicly known
by that.
Ang pangalan ko mahaba din dahil gusto ng mga lolo at lola
ko nandun ang mga pangalan nila! @.@ Willard Avelino
Antonio Ronaldo Gregorio Riano. Nung akoy Grade 1, pag
sinabi ng teacher isulat ang inyong pangalan, sila
nagdudrawing na, ako sa pangalan pa lang.
Her name is Juanita from elementary to college. Pag-kuha
niya ng birth certificate, the name pala is Jaunita. Clerical
error based on other available documents. Correction yan.
Lahat ng family members niya ang apilyedo ay Corpuz sa
kanya ay Corpos. Pinayagang pinalitan. It was corrected.
What are the grounds for the change of First name and
nickname? RA 9048, Section 4. Grounds for Change of First
Name or Nickname. The petition for change of first name or
nickname may be allowed in any of the following cases:
Dean Rianos Lecture 2014 79
(1) The petitioner finds the first name or nickname to be
ridiculous, tainted with dishonor or extremely difficult to write
or pronounce.
(2) The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that by that first name or nickname in the
community: or
(3) The change will avoid confusion.
Case 1. The first name is ridiculous.
For reason unknown to him, his parents, Adelaida Dominguez
Purissima and Dominador Angeles Santos, registered him with
the name Lucifer Purissima Santos. Actually, "Lucifer" means
"morning star" in Latin. Sometimes, it is referred to as the
planet Venus when appearing as the morning star. However, to
many, "Lucifer" is a devil's name, a fallen rebel archangel.
Because of this, Lucifer Purissima Santos becomes object of
laughter. In countless occasions, people twitted him as the
"devil man".
Tired of being ridiculed, he now wants to change his first
name to Luisito. He can do this under R.A. No. 9048. In this
case, it should be considered that a first name may appear
ridiculous to others while it may not be so to some. To the
petitioner, he may consider his first name as ridiculous, while
to the MCR such first name is not ridiculous. To avoid conflict
on the possible contrasting perception of what is and what is
not a ridiculous first name, the MCR shall rely heavily on the
supporting papers, including third party testimony, in deciding
the petition without regard as to what he believes is a
ridiculous first name.
Case 2. The first name is tainted with dishonor.
Example: Felix Cruz de Guzman is a businessman who owns
several manufacturing companies, and a member of several
business and professional associations. However, he has three
namesakes who have criminal records with NBI and PNP. The
first namesake was convicted of rape with homicide, who
escaped from detention; the second with acts of
lasciviousness; and the third with murder. In many occasions,
he experienced difficulty of getting clearance from either or
both NBI and PNP. In fact, when he applied passport for the
first time, he was subjected to further investigation because
one of his namesakes was one of the blacklisted individuals
who have a "hold departure order".
Felix Cruz de Guzman wants to change his first name from
Felix to Felixberto. Can he do it-under R.A. No. 9048? Yes,
he can do it provided he can support his allegation with
convincing and concrete proofs that- indeed, his first name is
tainted with dishonor, like a certification from NBI concerning
his namesakes, a copy of the "hold departure order" from
Bureau of Immigration, and others.

Case 3. The first name is extremely difficult to write or
pronounce.
Her mother is very fond of long names. In fact, her elder
sister's first name consists of 19 letters. In her case, her name
is Mirasoledardanellamorenacacharel which consists of 32
letters. She now wants her first name to be changed to Joy. In
another case, a mother gave a first name to her first son
consisting of first names of several well-known personalities
in show business. Thus, the son had this first name: Fernando
Joseph Paquito Marlon Robin Carlos Rogelio. Because of the
difficulty of writing very long compound name, he wants his
first name to be changed to Gil.
In both cases, the first names are extremely difficult to write
or pronounce because of their length. The affected individuals
can have their first names changed under R.A. No. 9048.
Second ground
The new first name or nickname has been habitually and
continuously used by the petitioner and he has been publicly
known by that first name or nickname in the community.
Case 1. Habitual and continuous use of the first name to be
adopted.
Example 1: Maricel Limon dela Guardia is now 22 years old.
She finished college and is now a professional nurse. Because
of an opportunity to work abroad, she applied for a passport.
As a supporting document to her application for passport, she
obtained her birth certificate from NSO. She was surprised to
find out that her registered first name is different from what
she' is presently using. In her birth certificate, her first name
was recorded as Ma. CecilIa. Because of this inconsistency
between her recorded first name and the first name she has
been using since childhood, she lost the opportunity to work
abroad.
Example 2: He has been using the name Anthony Celies
Moriones since childhood. All his school records from
elementary to college, including his employment records,
show his name as Anthony Celles Moriones. Lately, when he
requested his birth certificate from OCRG in connection with
his application for passport, he found out that his registered
name was Marc Anthony Celles Moriones. The Passport
Division refused to issue to him a passport under the name
Anthony Celles Moriones.
As he needed the passport very badly, he applied for change of
his first name from Marc Anthony to Anthony on the ground
that he has habitually and continuously used the latter first
name since childhood. Will his petition be considered
appropriate under R.A. No. 9048? The answer is yes, provided
he should be able to support his allegation with convincing
Dean Rianos Lecture 2014 80
and concrete proofs that he has been using Anthony since
childhood.
If she does want to change her first name from Ma. Cecilia to
Maricel, she can do so under R.A. No. 9048. She should
submit as many supporting papers as these are available to her
in order to convince the CIMCR that the first name she wants
to adopt has been habitually and continuously used by her.
Case 2. The petitioner has been publicly known by that
first name or nickname in the community.
Example: His name is Baby James Encarnacion Cruz. He is
now 45 years old, and has been very popular with his first
name as Baby James. In fact, he used that first name very
effectively in politics. He was elected as municipal mayor
when he was 25 years old, and now he is a governor.
Everybody calls him Baby James, formally and informally.
When he got married, that name was also entered in his
marriage certificate. Lately, he received an invitation to attend
an international convention in USA. For his travel abroad, he
now needs his birth certificate to apply for a passport and a US
visa. Much to his surprise, his first name in his birth certificate
is not Baby James but Jimmy Boy. As he has been publicly
known in the community as Baby James, he can have his
registered first name, Jimmy Boy, changed in accordance with
R.A. No. 9048.
Third ground
The change will avoid confusion.
Case 1. Petitioner's present first name creates confusion
Example: Here is a case of two neighbors in barangay San
Guillermo. They have the same first name Milagros, same
middle initial, A, and same last name Monteja. The middle
name of the first woman is Aguilar while the second woman
has Arguendo. Both women usually write their name as
Milagros A. Monteja. It so happened that in barangay San
Guillermo, there is no house number that could guide the
postman in delivering mails. Consequently, a letter intended
for Milagros Aguilar Monteja is sometimes delivered to
Milagros Arguendo Monteja, or otherwise. The postman
cannot be faulted because both women are using Milagros A.
Monteja. To avoid further confusion, Milagros Aguilar
Monteja decides to have her first name changed to Carmela.
She can do this under R.A. No. 9048.
Important notes in connection with the change of first name:
Section 5 of R.A. No. 9048 requires that the petition for
change of first name shall be published at least once a week
for 2 consecutive weeks in a newspaper of general circulation.
In connection with this publication, care should be taken with
regard to the first name to be published. If a wrong name is
published, the publication, even with an affidavit from the
publisher, is not considered compliance with the requirement
of Section 5 of R.A. No. 9048.
In one case, a petition for change of name was disapproved by
the Supreme Court because of the failure to comply with the
requirement of publication. The Supreme Court said: Petitions
 Dean Rianos Lecture 2014 81

for a change of name are proceedings in rem. Therefore, strict

compliance with the requirements of publication is essential,
for it is by such means that the Court acquires jurisdiction. If
the petitioner's name is spelled ''Jayme ", but the published
order spells it as ''Jaime' the error is substantial because the
publication did not correctly identify the party to said
proceedings. The difference of one letter in a name may
indeed means the distinction of identities of different persons.
(Jayme S. Tan vs. Republic, L-16384, April 26, 1962)37

When a petition for change of first name is granted by the

C/MCR, and such decision is affirmed by the CRG, the former
shall carry out the decision by annotating the fact of change of
first name in the successful petitioner's birth certificate. No
original entry shall be physically erased, canceled, changed or
obliterated in the birth certificate. The successful petitioner
shall not be issued any amended birth certificate. This is in
line with a decision of the Supreme Court: If a change of name
is authorized, the original entry must not be erased or
canceled. The proper way would be to make the proper
marginal corrections or annotations.